In re World Trade Center Disaster Site Litigation

105 F. Supp. 3d 413, 2015 U.S. Dist. LEXIS 69183, 2015 WL 2455500
District Court, S.D. New York·Decided May 20, 2015·No. No. 21 MC 100(AKH)·Published·Cited by 1 cases

Opinion

[414]*414ORDER GRANTING IN PART SECOND RENEWED APPLICATION FOR ATTORNEYS’ FEES AND COSTS

ALVIN K. HELLERSTEIN, District Judge:

Following remand from the Second Circuit Court of Appeals, the Marion S. Mish-kin Law Office (“Mishkin”) renews its application for costs and fees arising from its role as co-liaison counsel for plaintiffs alleging non-respiratory injuries sustained during work performed at the World Trade Center site following September 11, 2001. The Court of Appeals remanded the issue of whether Mishkin maintained sufficiently detailed contemporaneous records to support an application for costs and fees. I conclude that, although Mishkin failed to maintain sufficiently detailed contemporaneous records to justify her fee application, she is entitled to compensation in the amount of $48,000 for her work and expenditures. I therefore grant her application in part.

I. Procedural Background

On May 21, 2008, I appointed Mishkin liaison counsel for plaintiffs alleging non-respiratory injuries arising from their work at the World Trade Center site following the terrorist attacks of September II, 2001. On August 28, 2008, Mishkin was removed as liaison counsel until her reinstatement pursuant to orders dated April 3, 2009 and June 23, 2009 (together, the “Reinstatement Orders”). See Plaintiffs’ Co-Liaison Counsel Order, No. 21 MC 100, ECF No. 1224 (S.D.N.Y. Apr. 3, 2009); Case Management Order No. 1, No. 21 MC 100, ECF No. 1386 (S.D.N.Y. June 23, 2009). The Reinstatement Orders delineated the specific administrative tasks for which Mishkin, as liaison counsel, would be responsible and for which she would be entitled to compensation from individual plaintiffs’ counsel benefited by such tasks. Specifically, Mishkin was responsible for conferring with individual plaintiffs’ counsel regarding court-ordered procedures and schedules, distributing orders and documents from the Court and opposing parties and counsel, filing and serving joint pleadings and communica[415]*415tions, and proposing future case management procedures and orders. See id. at 3-4.

On January 23, 2012, Mishkin submitted a fee application seeking $1,876,104.36 in total fees and costs arising from this administrative role. See Application in Support of Request for Order Awarding Counsel Fees and Expenses, No 21 MC 100, ECF No. 2739 (S.D.N.Y. Jan.' 23, 2012). On September 13, 2012, I denied the fee application because it sought fees for work done during the time Mishkin was not appointed liaison counsel and for duties not assigned in the Reinstatement Orders. See Summary Order, No. 21 MC 100, ECF No. 2888 (S.D.N.Y. Sept. 13, 2012). After Mishkin’s appeal was dismissed by the Second Circuit Court of Appeals on April 16, 2013, she filed a renewed fee application in the amount of $418,995, excluding, she said, the period of time she was not appointed as liaison counsel. See Motion for Attorneys’ Fees, No. -21 MC 100, ECF No. 3022 (S.D.N.Y. Apr. 26, 2013).

On June IT, 2013, I denied Mishkin’s renewed fee application because it was not supported by contemporaneous records and sought fees for work beyond the scope of her appointment as liaison counsel. See Order, No. 21 MC Í00, ECF No. 3064 (S.D.N.Y. June 11, 2013). Mishkin appealed that Order and, on August 26, 2014, the Second Circuit Court of'Appeals reversed my ruling. See Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144 (2d Cir.2014). The Court of Appeals held that Mishkin was not entitled to fees for the period of time she was not formally appointed as liaison counsel. See id. at 148. However, the Court , of Appeals noted that Mishkin’s attorney reported to the District Court at argument that:

[WJhile Mishkin did not track her time on a computer, “[everything was timestamped, when she did it. She just had to go back and review. There was no recording made of it such as we would have to print out from a computer program, for example, a time record or an entry-keeping program. But she did have everything timerstamped.”

Id. at 149. Accordingly, the Court of Appeals ruled that my finding was clearly erroneous and remanded for a determination “whether Mishkin-kept sufficiently detailed contemporaneous records- as to be eligible for a fee award.” Id. at 150.

Upon remand,' Mishkin and various attorneys who.were potentially liable to her for her fee commenced settlement discussions. When it became clear that such discussions were not productive, I ordered Mishkin to renew her fee application, attach contemporaneous records sufficient to support her application, and name the law firms that would be, liable for the amount. See Order Regulating Issues on Remand, No. 21 MC 100, ECF No. 3204 (S.D.N.Y. Mar. 18, 2015). Mishkin filed her second renewed fee application on April 24, 2015, naming 14 law firms,1 which together represented 16 plaintiffs, whom she considered liable to her for fees reflective of her work. Three opposition briefs have been filed on behalf of eight law firms.2

[416]*416II. Applicable Law

Attorneys whose work creates a common benefit to other parties are generally entitled to a fee and reimbursed costs. See generally Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 166-67, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). A federal district court “is vested with broad discretion in determining the amount and distribution of the fee award.” Smiley v. Sincoff, 958 F.2d 498, 501 (2d Cir.1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). In making the determination, the district court should “include the number of hours claimed by plaintiffs1 attorneys that are supported by time records, that are not excessive or duplicative, and that do not reflect work done only in connection with unrelated claims.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir.1998). Furthermore, applications for fees must be supported by contemporaneous records. See N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir.1983) (“[Contemporaneous time records are a prerequisite for attorney’s fees in this Circuit.”). Such records “should specify, for each attorney, the date, the hours expended, and the nature of the work done.” Id. at 1148.

III. Discussion

Mishkin seeks a fee in the amount of $302,620 and costs in the amount of $999.93. In support of this application, Mishkin has submitted a “Schedule of Liaison Counsel Work” (the “Fee Schedule”), which is a record of time expended on various tasks reconstructed from various documents generated at or around the time the work was completed. See Decl. Supp. Renewed Request Court Appointed Liaison Counsel Fees Expenses (“Mishkin Deck”) ¶¶ 11-13. In support of this reconstructed Fee Schedule, Mishkin attaches four exhibits, none of which constitute “contemporaneous time records” as required by the Second Circuit Court of Appeals.

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In re World Trade Center Disaster Site Litigation, 105 F. Supp. 3d 413, 2015 U.S. Dist. LEXIS 69183, 2015 WL 2455500 (S.D.N.Y. 2015).

105 F. Supp. 3d 413 (In re World Trade Center Disaster Site Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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