Gonzalez - Order re Attorney's Fees

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------X JANE DOE, v.

Plaintiff,

JAVIER GONZALEZ,

ORDER 2:21-cv-04580(JS)(LGD)

Defendant.

----------------------------------------------------------X LEE G. DUNST, Magistrate Judge: Presently before the Court is Plaintiff’s renewed Motion for Attorney’s Fees and Costs (the “Motion”) at Electronic Case File Number (“ECF No.”) 29. Plaintiff counsel, Crumiller P.C., seeks (1) attorney’s fees in the amount of $49,917.50, pursuant to N.Y.C. Admin. Code § 10-1104 and 18 U.S.C. § 2255(a), which authorize courts to award “reasonable attorney’s fees” as a civil remedy in connection with violations of U.S.C. § 2252A, and (2) costs of $1,681.70, for a grand total of $51,599.20. See ECF No. 31 at 5-6. On April 19, 2024, Judge Joanna Seybert referred the Motion to the undersigned for a decision. See Apr, 19, 2024 Order. For the following reasons, the undersigned GRANTS Plaintiff’s Motion, but reduces slightly the amount of the fees and costs awarded to Plaintiff.

I.

FACTUAL AND PROCEDURAL BACKGROUND On February 2, 2023, Plaintiff moved for default judgment and attorney’s fees and costs

against Defendant Javier Gonzalez for sexual assault, battery, and other claims under New York law; violations of the N.Y.C. Gender-Motivated Violence Protection Act (N.Y.C. Admin. Code § 10-1101, et seq.) (“GMVPA”); and violations of 18 U.S.C. § 2252A (which relates to child pornography and provides a civil remedy at Section 2255.). ECF No. 21 at 1. On April 12, 2023, Judge Seybert referred that motion to the undersigned for a Report and Recommendation

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(“R&R”). See Apr. 12, 2024 Order. Subsequently, on August 4, 2023, the undersigned issued a R&R granting the motion for default judgement and the motion for attorney’s fees and costs totaling $55,606.70. ECF No. 22 at 19. On August 7, 2023, Plaintiff served the R&R on Defendant. 1 ECF No. 23. Neither party objected to the R&R within the fourteen-day period prescribed by 28 U.S.C. § 636(b)(1) and Rule 72(b)(2).

On September 25, 2023, Judge Seybert adopted the R&R in part and rejected it in part.

See ECF No. 27. Specifically, Judge Seybert adopted the undersigned’s findings regarding: “(1) defendant’s willful default; (2) defendant’s failure to raise any meritorious defenses; and (3) plaintiff’s stating valid claims and that it would be prejudicial to plaintiff if she were not awarded default judgment.” ECF No. 27 at 4. Accordingly, the Court awarded Plaintiff $2,000,000.00 in compensatory damages and $1,750,000.00 in punitive damages. Id. at 6.

Judge Seybert, however, denied without prejudice Plaintiff’s motion for attorney’s fees with leave to renew. Id. The Court found that: (1) the undersigned “did not apply this circuit’s forum rule in as far as he recommended hourly rates awarded in the Southern District of New York and not the Eastern District;” and (2), “Plaintiff’s attorneys have failed to meet their burden of offering evidence, in addition to their own affidavits (which they also did not submit), showing why the requested fees are appropriate.” Id. at 4. Consequently, on October 27, 2023, Plaintiff renewed its request for attorney’s fees. ECF No. 29. Additionally, Plaintiff submitted a supporting memorandum and affidavit in support of the motion, along with an itemized cost of billing record. See ECF Nos 30 & 31. On October 31, 2023, Plaintiff served this Motion on The Court was initially “unable to verify whether the underlying Default Judgment Motion ha[d] been served upon Defendant in compliance with this District’s Local Civil Rule 55.2(c).” ECF No. 24 at 1-2. Thus, on August 29, 2023, the Court ordered Plaintiff to, “by no later than September 5, 2023,” “(i) mail said papers to Defendant and file proof of such mailing, see Local Civil Rule 55.2(c); and (ii) mail a copy of this Interim Order to Defendant and file proof of such mailing; (b) if necessary, Plaintiff is to file a supplemental affidavit if her mailings are returned.” Id. at 5. Plaintiff submitted an affidavit of service for these papers on September 5, 2023. ECF No. 26.

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Defendant. ECF No. 32. On April 19, 2024, Judge Seybert referred the Motion to the undersigned for a decision. Apr. 19, 2024 Order.

II.

LEGAL STANDARDS Plaintiff now seeks attorney’s fees and costs in the amount of $51,599.20. ECF No. 31.

The request for fees is pursuant to N.Y.C. Admin. Code § 10-1104 (authorizing a court to award attorneys’ fees for a violation of the GMVPA) and 18 U.S.C. § 2255(a) (authorizing a court to award attorney’s fees for a violation of 18 U.S.C. § 2255A). ECF No. 22 at 18. Courts determine a “presumptively reasonable fee” that the party seeking attorney’s fees is entitled to recover by “multiplying the number of hours reasonably expended on litigation by an hourly rate that a reasonable, paying client would be willing to pay.” Astudillo v. Fusion Juice Bar Inc., No. 19-CV-2590, 2023 WL 3802754, at *15 (E.D.N.Y. Mar. 23, 2023).

To determine what a reasonable client would pay, courts consider the community in which the district court sits and look to the prevailing rates for attorneys in that field with comparable experience. Id.; see also Gesualdi v. Bestech Transp., LLC, No. 14-CV- 1110, 2022 WL 866853, at *2 (E.D.N.Y. Mar. 23, 2022) (“The reasonableness of hourly rates is guided by the market rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation, and the relevant community is generally the district in which the court sits.”) (cleaned up); Rudler v. Houslanger & Assocs., PLLC, No. 18-CV-7068, 2020 WL 473619, at *2 (E.D.N.Y. Jan. 29, 2020) (“This Court follows the Second Circuit’s ‘forum rule,’ which ‘generally requires use of the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable rate.”) (internal citations omitted)). “[T]he prevailing rates for attorneys in the E.D.N.Y. . . . are approximately $300$450 per hour for partners, $200-$300 per hour for senior associates, and $100-$200 per hour for

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junior associates.” Rudler, 2020 WL 473619, at *2 (quoting Cleanup N. Brooklyn by Chantrtanapichate v. Brooklyn Transfer LLC, 373 F. Supp. 3d 398, 404 (E.D.N.Y. 2019); see also Power Up Lending Grp., LTD. v. Cardinal Energy Grp., Inc., No. 16-CV-1545, 2023 WL 7001360, at *4 (E.D.N.Y. Aug. 18, 2023) (approving hourly rate of $400 per hour for attorney with over thirty years of experience); Ivic v. Advance Stores Co., No. 19-CV-509, 2023 WL 6385706, at *2 (E.D.N.Y. Sept. 29, 2023) (approving hourly rate of $225 per hour for attorneypartner); Nimkoff v. Drabinsky, No. 17-CV-4458, 2020 WL 3806146, at *8 (E.D.N.Y. June 9, 2020) (finding that an hourly rate of $520 per hour unreasonable and approving a $300 per hour rate instead), report and recommendation adopted, No. 17-CV-4458, 2020 WL 3804458 (E.D.N.Y. July 7, 2020).

III.

DISCUSSION A.

Plaintiff’s Request for Attorney’s Fees

In the initial R&R, the undersigned cited to cases in the Southern District of New York to calculate the relevant “prevailing rate.” See, e.g., ECF No. 22 at 19 (citing Rosario v. City of New York, No. 18-CV-4023, 2023 WL 2908655 (S.D.N.Y. Jan. 27, 2023), report and recommendation adopted as modified, 2023 WL 2523624, at *7 (S.D.N.Y. Mar. 15, 2023) (citing Lilly v. City of New York, 934 F.3d 222, 231 (2d Cir. 2019) (bold added))). Specifically, the undersigned justified an hourly rate of $625 for a senior associate by reference to the Southern District’s prevailing rate. See ECF No. 22 at 18-19 (“Precedent in the Second Circuit suggests that a reasonable hourly rate for a civil rights attorney can range from $250 to $650, with rates clustering around $450 per hour for experienced attorneys in garden variety civil rights cases.”) (internal quotations and citations omitted)). However, that $625 hourly rate is higher than the typical prevailing rate in the Eastern District. See Rudler, 2020 WL 473619, at *2 (finding $300-$450 to be a reasonable hourly rate for partners); supra at 3-4.

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After review, however, it does appear that the rates now requested in Plaintiff’s renewed Motion (see ECF No. 31 at 3-4) are largely within the prevailing rate range of the Eastern District, as outlined in the table below: Individual Crumiller Liederman Elmaleh-Sachs Pierre-Louis Davis Legal support Total fees sought:

Hourly rate $450 $325 $325 $325 $100 $100

Hours spent 3.7 1.5 41.5 94.7 11.8 23.2

Subtotal $1,665.00 $487.50 $13,487.50 $30,777.50 $1,180.00 $2,320.00 $49,917.50

At the highest end of the range, Susan Crumiller, the founder of Plaintiff’s firm and a senior attorney with 16 years of civil litigation experience, charges $450 per hour for approximately four working hours. ECF No. 31 at 3. This rate falls within the range given for partners in the eastern district. See Rudler, 2020 WL 473619, at *2 (finding $300-$450 to be a reasonable hourly rate for partners). Additionally, the $325 hourly rate for senior associates Chloe Liederman and Julia Elmaleh-Sachs 2 also fall within the Eastern District’s prevailing reasonable range of fees. See Yanes v. Juan & Jon Inc., No. 19-CV-0201, 2024 WL 1639932, at *1 (E.D.N.Y. Apr. 16, 2024) (“Courts in the Eastern District have recently awarded hourly rates ranging from $300 to $450 for partners, $200 to $325 for senior associates, $100 to $200 for junior associates, and $70 to $100 for legal support staff in FLSA cases.”) (quoting Diaz v. Rene French Cleaners, Inc., No. 20-CV-3848, 2022 WL 4646866, at *13 (E.D.N.Y. Aug. 29, 2022)).

The Court, however, finds that the $325 rate charged for Travis Pierre-Louis is outside of the prevailing rate for associates. Mr. Pierre-Louis “has approximately five years of civil litigation experience” (ECF No. 31 at 4), which differentiates him from senior associates

According to Crumiller, P.C.’s website, Julia Elmaleh-Sachs is now a partner. See CRUMILLER, P.C., Our Team, https://crumiller.com/our-team/julia-elmaleh-sachs/ (last accessed, May 8, 2024).

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Liederman and Elmaleh-Sachs, who have ten and eight years of litigation experience respectively. Id. Thus, the Court finds it appropriate to adjust slightly Mr. Pierre-Louis’s rate to $300 per hour, to reflect the difference in experience and seniority between associates. See, e.g., Feltzin v. Union Mall LLC, 393 F. Supp. 3d 204, 215 (E.D.N.Y. 2019) (reducing fee award based on, inter alia, “experience before the federal bar. . .”); Houston v. Cotter, 234 F. Supp. 3d 392, 411 (E.D.N.Y. 2017) (similar); Riley v. City of New York, No. 10-CV-2513, 2015 WL 9592518, at *3 (E.D.N.Y. Dec. 31, 2015) (similar). At the revised $300 hourly rate, Mr. Pierre-Louis’ total fee amounts to $28,410.00 – a total reduction of $2,367.50.

Finally, Plaintiff’s counsel charges $100 per hour for a law clerk and legal support staff, which again is within the prevailing rate range in this District. See Id. Thus, the hourly rates requested, along with Mr. Pierre-Louis’ reduced rate, are reasonable in the Eastern District.

Additionally, the undersigned has reviewed the billing records provided by Plaintiff at ECF Nos. 30-1 and 30-2, and finds the hours and costs incurred to be reasonable in light of the work performed in this case. The itemized list of all costs and work performed satisfies Plaintiff’s burden to ‘“offer evidence to the Court in addition to the attorney’s own affidavits why its requested fee is appropriate.’” Gesualdi 2022 WL 866853, at *3 (quoting LV v. N.Y. City Dep’t of Educ., 700 F.Supp. 2d 510, 521 (S.D.N.Y. 2010); see also Yanes v. Juan & Jon Inc., No. 19-CV-0201, 2024 WL 1639932, at *1 (finding “contemporaneous time records” sufficient to justify fee award).

Furthermore, although Plaintiff’s spent almost 177 hours litigating this case (which resulted in a default judgment), the undersigned finds that length of time to be reasonable in light of the detailed time records and complex, sensitive issues here. Cf. Yanes 2024 WL 1639932, at *2 (finding “approximately 32 hours” reasonable in a straightforward FLSA default judgment

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case); Castiblanco v. Don Alex Peru, Inc., No. 20-CV-2235, 2021 WL 4755701, at *10 (Aug. 20, 2021) (finding, in default judgment case, 23.7 hours was reasonable); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 52 (E.D.N.Y. 2015) (finding 26.4 hours expended in a default judgment case reasonable). Unlike those cases, however, the instant case deals with difficult issues around sexual violence and exploitation of a minor, resulting in the deterioration of her mental and physical health. See ECF No. 22 3-4 (detailing the physical and mental trauma caused by Defendant’s abuse). Undoubtedly, the nature of the claims here necessitated extra care by Plaintiff’s counsel in obtaining medical and counseling records, crafting the Complaint to capture all claims, hiring a private investigator to find Defendant, and even speaking with Plaintiff and her parents about the sensitive nature of the incidents. See ECF No. 30-1 (detailing the time spent on each of these tasks). This case is not the typical default. Thus, the undersigned finds that 177 hours of time spent is reasonable and grants a fee award of $47,550.00, which reflects the total amount demanded by Plaintiff reduced by Mr. Pierre-Louis’ adjusted rate.

B. Plaintiff’s Request for Costs As to costs, Plaintiff seeks: (1) $402.00 in filing fees; (2) $350.00 in fees for a private investigator; (3) $844.95 in service of process costs; and (4) $84.75 costs involved in obtaining medical and counseling records, for a total costs award of $1,681.70. ECF No. 30-2. Plaintiff has not provided invoices or receipts to substantiate the claimed amounts but relies instead upon Crumiller P.C.’s billing records. See ECF No. 29; ECF No. 30-2. The Court takes judicial notice of the filing fee receipt present on the Docket (see ECF No. 1 (confirmation of payment of $402.00 filing fee with corresponding receipt number)). See Yanes 2024 WL 1639932, at *2 (citing Bank of Am. V. Jacobi Tool & Die M.F.G., Inc., No. 17-CV-6828, 2019 WL 7599891, at *6 (E.D.N.Y. Oct. 22, 2019) (“As the Court records easily substantiate this cost, it is awarded to Plaintiff.”)). However, Plaintiff's unsubstantiated costs, totaling $1,279.70, must be denied for 7

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lack of substantiation. See Yanes 2024 WL 1639932, at *2 (citing Khotovitskaya v. Shimunov, No. 18-CV-7303, 2021 WL 868781, at *2 (E.D.N.Y. Mar. 9, 2021) (denying costs where party failed to submit documentation substantiating the amounts reflected in attorney billing records); Suriel v. Cruz, No. 20-CV-8442, 2022 WL 1750232, at *18 (S.D.N.Y. Jan. 10, 2022) (same).

IV.

CONCLUSION For the foregoing reasons, the undersigned GRANTS Plaintiff’s Motion, but denies the

unsubstantiated costs. Therefore, the undersigned awards Plaintiff a total of $50,319.50 in attorney’s fees and costs.

SO ORDERED: Dated: Central Islip, New York May 21, 2024

s/ Lee G. Dunst _________________________ LEE G. DUNST United States Magistrate Judge

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