Nu-Life Const. v. Bd. of Educ. of City or New York

795 F. Supp. 602, 1992 U.S. Dist. LEXIS 8655, 1992 WL 136680
CourtDistrict Court, E.D. New York
DecidedJune 16, 1992
DocketCV-86-0807 (ADS)
StatusPublished
Cited by27 cases

This text of 795 F. Supp. 602 (Nu-Life Const. v. Bd. of Educ. of City or New York) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nu-Life Const. v. Bd. of Educ. of City or New York, 795 F. Supp. 602, 1992 U.S. Dist. LEXIS 8655, 1992 WL 136680 (E.D.N.Y. 1992).

Opinion

MEMORANDUM DECISION AND ORDER

SPATT, District Judge.

In 1986, the plaintiffs Nu-Life Construction Corp. (“Nu-Life”) and' Terminate Control Corp. (“Terminate”) commenced this action pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 U.S.C. § 1961 et seq. In effect, there were two separate law suits combined in this case, namely, the Nu-Life suit and the Terminate suit. In addition, the Board. of Education counterclaimed against Terminate on a breach of contract claim. On March 10, 1992, after a ten-week trial, a jury returned a verdict in favor of Nu-Life on its RICO conspiracy claim in the amount of $23,400 against the defendants John Trapanotto and Stanley Dobrowolski. However, the jury found in favor of Trapanotto and Dobrowolski on Nu-Life’s RICO § 1962(c) claims. The jury also found in favor of the defendant Nicholas E. Borg on Nu-Life’s RICO conspiracy claim.

With respect to the Terminate case, the jury returned a verdict in favor of the defendant John Frisone on Terminate’s RICO § 1962(c) and conspiracy claims. A verdict was also returned for the defendant Stuart Horowitz on Terminate’s RICO conspiracy claim.

Furthermore, the jury returned a verdict for the defendant Board of Education on its counterclaim against Terminate in the amount of $26,800.

At the conclusion of trial, Nu-Life moved pursuant to RICO § 1964(c) for an award of attorney’s fees and disbursements incurred in connection with the prosecution of its successful claims against Trapanotto and Dobrowolski.

Presently before the Court for determination is Nu-Life’s fee application. Also, the defendant Board of Education contends that pursuant to Local Rule 11(e) it is entitled to certain deposition costs as taxable against Nu-Life. As such, it seeks to ensure that such entitlement is reflected in the judgment at the time of entry. In addition, the Board seeks the entry of final judgment as to the Terminate portion of the judgment. Finally, the defendants Tra-panotto and Dobrowolski, in view of the outstanding civil rights claims still pending in this action, move pursuant to Fed. R.Civ.P. 54(b) for a direction that final judgment be entered against them as to the RICO claims, in order that they may take an immediate appeal on that part of the case.

BACKGROUND

Although under the “American Rule” each party in a lawsuit bears the burden of paying its own attorney’s fees, certain statutes provide that a successful party may recover such fees from the adversary (see e.g., Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 [1983] [“each party in a lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary”]; Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 [1975]).

Section 1964(c) of RICO provides such statutory authorization to shift the cost of attorney’s fees, as follows:

“[a]ny person injured in his business or property by reason of a violation of section 1962 of the this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including reasonable attorney’s fees’’ (emphasis supplied).

In accordance with this section, Nu-Life applies for its attorney’s fees incurred in the course of this litigation with regard to the defendants Trapanotto and Dobrowol- *605 ski, against whom it prevailed. Nu-Life submits that it is entitled to $303,255 in fees incurred in obtaining a verdict against Trapanotto and Dobrowolski. A review of the figures submitted by Nu-Life indicates that the total attorney’s fees it claims is actually the sum of $303,235.25. This figure will govern the Court’s ultimate determination of the fee awarded. Nu-Life also submits a bill of costs in the sum of $27,-208.46, reflecting the disbursements it alleges were necessary to the prosecution of the law suit. Based on the figures provided by Nu-Life, the total costs incurred actually amounted to $26,308.48.

The defendants Trapanotto and Dobro-wolski object to Nu-Life’s fee application on the grounds that it fails to supply contemporaneous billing records in sufficient detail so that they can determine which fees sought are attributable to Nu-Life’s successful claims against them. In particular, they contend that much of the time spent by Nu-Life at trial and in defending a summary judgment motion made by the Corporation Counsel on behalf of several other defendants is not compensable under the RICO fee-shifting provision. They contend that the legal services rendered by plaintiffs’ counsel in opposition to the motion was on behalf of a plaintiff that did not ultimately succeed in the litigation. They object to all but $92,212.75 of the fees sought by Nu-Life. Additionally, they suggest that this lesser figure should be further be reduced by a factor of 25 per cent, resulting in a net fee award of $69,-159.56.

DISCUSSION

a. Attorney’s Fees Under RICO

The fee award provision contained in section 1964(c) of RICO parallels that of section 4 of the Clayton Act, 15 U.S.C. § 15 (see Aetna Cas. & Sur. Co. v. Leibowitz, 730 F.2d 905, 907 [2d Cir.1984]). The thrust of each provision is that any person injured in his business or property by reason of a violation of the respective law, either the antitrust laws or RICO, “shall recover ... the cost of the suit, including a reasonable attorney’s fee” (15 U.S.C. § 15[b]; 18 U.S.C. § 1964[c]).

What constitutes a reasonable attorney’s fee under the Clayton Act is first determined by multiplying all reasonable hours expended by the successful party’s attorney by a reasonable hourly billable rate (see U.S. Football League v. National Football League, 887 F.2d 408, 413 [2d Cir.1989] cert. denied 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 [1990]). The product of these figures is often referred to as the “lodestar,” which may be subject to further adjustment depending on other factors that a Court may take into consideration'when calculating an award of attor ney’s fees (see e.g., U.S. Football League, supra, at p. 415 [citing factors]; see also Burr v. Sobol, 748 F.Supp. 97, 99-100 [S.D.N.Y.1990]). For example, in Hensley v. Eckerhart, supra, 461 U.S. at p. 435, 103 S.Ct. at p. 1940, the United States Supreme Court suggested that a reduction to the lodestar may be appropriate “[w]here the documentation of hours is inadequate.”

b. Arriving at the Lodestar

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Cite This Page — Counsel Stack

Bluebook (online)
795 F. Supp. 602, 1992 U.S. Dist. LEXIS 8655, 1992 WL 136680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nu-life-const-v-bd-of-educ-of-city-or-new-york-nyed-1992.