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Ciolino v. Eastman

United States District Court, D. Massachusetts

October 25, 2016

AARON EASTMAN, et al., Defendants.



         For the reasons set forth below, the Court GRANTS in part Plaintiff's motion for attorneys' fees [ECF No. 147] and Plaintiff's supplemental motion for attorneys' fees [ECF No. 155].


         This case arises from an incident that occurred at a street festival in Gloucester, Massachusetts in June 2013, where Plaintiff Alfonso Ciolino (“Plaintiff”) was injured while being placed under arrest by officers of the Essex County Sheriff's Department. Plaintiff commenced this civil action against the arresting officers, Defendants Aaron Eastman, David Earle, and George Gikas. In January 2016, after a four-day trial, the jury returned a verdict in favor of Defendants on Plaintiff's malicious prosecution claim. The jury found that Eastman and Earle were not liable with respect to Plaintiff's § 1983 excessive force claim, but found that Gikas was liable under § 1983 and awarded Plaintiff $140, 000 in damages.

         Plaintiff now moves for an award of attorneys' fees in accordance with 42 U.S.C. § 1988. To calculate a fee award, the First Circuit has instructed that “a trial court generally should employ the lodestar method.” Bogan v. City of Boston, 489 F.3d 417, 426 (1st Cir. 2007). Under this method, the Court begins with the attorneys' billing records, subtracting any hours that are “duplicative, unproductive or excessive.” Id. The Court then multiplies the number of reasonable hours billed by the prevailing hourly rate in the community. Id. “The resulting amount constitutes the lodestar, ” which the Court may then adjust further “for any of several reasons, including the quantum of success achieved in the litigation.” Id.


         A. The Attorneys' Hourly Rates

         1. Mr. Sinsheimer's Hourly Rate

         Plaintiff requests that the hourly rate for Mr. Sinsheimer, who served as lead counsel, be set at $500. Defendants do not specifically discuss Mr. Sinsheimer's hourly rate in their opposition to the motion for attorneys' fees, but they do propose a rate of $400 per hour in their “supplemental opposition.” [ECF Nos. 153, 156]. Plaintiff provided affidavits from Joseph Savage, Jr., R. Bradford Bailey, Rosemary Scapicchio, and Howard Cooper to support Mr. Sinsheimer's request for a rate of $500 per hour. [ECF Nos. 148-7, 148-8, 148-9, 150].

         Mr. Sinsheimer's hourly rate in federal civil rights litigation has been addressed in several other cases. In 2015, Judge Sorokin set Mr. Sinsheimer's rate at $400 per hour. Matalon v. O'Neill, Civ. A. No. 13-10001-LTS, 2015 WL 1206343, at *2 (D. Mass. Mar. 17, 2015), aff'd sub nom. Matalon v. Hynnes, 806 F.3d 627 (1st Cir. 2015). Judge Sorokin explained that Mr. Sinsheimer had been awarded $350 per hour in 2011 by Judge Woodlock, and he adjusted the amount upward to $400 per hour to account for inflation and the additional experience gained by Mr. Sinsheimer in the intervening years. Id.; see also Ferraro v. Kelley, Civ. A. No. 08-11065- DPW, 2011 WL 576074, at *5 (D. Mass. Feb. 8, 2011) (Woodlock, J.) (awarding Mr. Sinsheimer $350 per hour, and discussing Mr. Sinsheimer's fee awards in earlier federal cases).

         Plaintiff cites two recent federal civil rights cases in which experienced attorneys were awarded fees of $450 and $500 per hour. Earlier this year, Judge Dein determined that “the prevailing rate for experienced lead counsel in straightforward civil rights cases . . . is in the range of $400 per hour, ” but she awarded lead counsel in that case $450 per hour because he had previously been awarded the same rate in another case before the court, “albeit without discussion.” Meagher v. Andover Sch. Comm., Civ. A. No. 13-11307-JGD, 2016 WL 70447, at *8 (D. Mass. Jan. 6, 2016). In 2011, Judge Gertner awarded two experienced attorneys $500 per hour for what she described as an “extraordinarily difficult” case. Drumgold v. Callahan, 806 F.Supp.2d 428, 432 (D. Mass. 2011). Judge Sorokin cited the complexity and extended duration of Drumgold in declining to award Mr. Sinsheimer the same fee. Matalon v. O'Neill, 2015 WL 1206343, at *2.

         This case can fairly be described as a “straightforward” civil rights case, which was not significantly more complicated than Matalon. Considering that Judge Sorokin awarded Mr. Sinsheimer $400 per hour in that case last year, and that Judge Dein determined this year that the prevailing rate for experienced lead counsel in such cases is approximately $400 per hour, the Court sees no compelling reason to depart from these assessments. Therefore, the Court sets Mr. Sinsheimer's fee in this case at $400 per hour.

         2. Ms. Thomas's Hourly Rate

         Defendants argue that the fee request for attorney Lauren Thomas should be stricken because Plaintiff has not provided an affidavit from Ms. Thomas. Although the party seeking attorneys' fees “bears the burden of providing this Court with affidavits and other forms of evidence, ” Martino v. Massachusetts Bay Transp. Auth., 230 F.Supp.2d 195, 205 (D. Mass. 2002), the Court is not aware of any requirement that the affidavit must always come directly from the individual who performed the work. Here, Plaintiff represents that Ms. Thomas left the firm in early 2015. [ECF No. 154, at 1]. Her work on this case is discussed in Mr. Sinsheimer's declaration [ECF No. 148], and her qualifications and her hourly rate are supported by affidavits from R. Bradford Bailey and Rosemary Scapicchio. [ECF Nos. 148-8, 148-9]. In addition, Plaintiff notes ...

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