Federal District Court Opinions

in their official capacities as police officers for the
Town of Fairfield), Defendants. Civ. Action No. 3:03CV1048
(PCD). United States District Court, D. Connecticut.
December 5, 2006


PETER DORSEY, Senior District Judge

Pending is Plaintiff’s motion [Doc. No. 131] pursuant to
fed. R. Civ. P. 54(d)(2) for an award of attorneys’ fees
and costs pursuant to 18 U.S.C. § 2707(b) and (c)
based on the Court’s Amended Judgment dated November 8,
2005. For the reasons stated herein, Plaintiff’s motion for
fees and costs is granted in part.


On February 4, 2004, the Court granted summary judgment
for Plaintiff on the issue that Defendants Detective
William Young and Detective David Bensey violated the
Electronic Communications Privacy Act (“ECPA”) by
soliciting subscriber information from an online service
provider without complying with 18 U.S.C. § 2703(c).
After a subsequent ruling granting partial summary judgment
to Defendants and a trial in this Court on the remaining
counts, the jury returned a verdict on September 26, 2005
for the Defendants Town of Fairfield, Young, and Bensey and
awarded to the Plaintiff nominal damages in the amount of
$1.00. [Doc. No. 99.] The following month, Plaintiff filed
a Motion to Amend Judgment [Doc. No. 104], requesting that
the Court amend the judgment to state the finding of
liability of Defendants Young and Page 2 Bensey as to
Count One, Plaintiff’s claim under the ECPA. Plaintiff also
requested that, pursuant to Connecticut General Statutes
§ 7-465, the judgment state the finding of the
Town’s vicarious liability for Young’s and Bensey’s
violation of the ECPA. The Court granted the Plaintiff’s
motion on November 4, 2005 [Doc. No. 113] and entered an
amended judgment for the Plaintiff of $1,000.000 on
November 8, 2005. [Doc. No. 116.] Plaintiff served his
motion for attorneys’ fees on November 18, 2005, and filed
a notice of service of the motion with the Court. [Doc. No.
117.] On November 28, 2005, Defendants filed a motion for
reconsideration of the amended judgment. [Doc. No. 118.]
After the Court denied Defendants’ motion for
reconsideration [Doc. No. 130], Plaintiff filed a renewed
motion for attorney’s fees on September 20, 2006. [Doc. No.


Plaintiff contends he is entitled to an award of
attorney’s fees and other litigation costs because he
prevailed on his claim that Defendants Young and Bensey
violated the ECPA, 18 U.S.C. § 2703. Section 2707 of
the ECPA provides in relevant part:

(b) Relief. — In a civil action under this section,
appropriate relief includes . . .

(3) a reasonable attorney’s fee and other litigation
costs reasonably incurred. . . .

(c) Damages. — . . . In the case of a successful
action to enforce liability under this section, the court
may assess the costs of the action, together with
reasonable attorney fees determined by the court.

Defendants, citing Buckhannon Board and Care Home, Inc. v.
West Virginia Department of Health and Human Resources, 532
U.S. 598 (2001) and J.C. v. Regional School District, 278
F.3d 119 (2d Cir. 2002), maintain that because Plaintiff
did not prevail in litigation with exception of one count
and did not prevail as to liability under any cause of
action at trial, he is Page 3 therefore not entitled to
fees under § 2707.

The Court concludes that Plaintiff is entitled to recover
attorneys’ fees pursuant to his ECPA claim, even if he
received only nominal damages following an entry of summary
judgment. The Second Circuit has not addressed the issue of
entitlement to attorneys’ fees under § 2707, but it
has interpreted the attorneys’ fee provision of the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692k(a),
which has similar language to the ECPA, to mandate an award
of attorneys’ fees in a successful action. Savino v.
Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998);
Pipiles v. Credit Bureau of Lockport, 886 F.2d 22, 27-28
(2d Cir. 1989); Emanuel v. American Credit Exchange, 870
F.2d 805, 809 (2d Cir. 1989). A party who succeeds in an
action, regardless of whether he was awarded actual or
statutory damages, is entitled to recover reasonable costs
and fees in amounts to be fixed in the discretion of the
Court. Savino, 164 F.3d at 87. See also Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983); Buckhannon, 532 U.S.
at 604.

Defendants’ argument that Plaintiff is not entitled to
attorneys’ fees after Buckhannon and J.C. v. Regional
School District is unavailing. In Buckhannon, the Supreme
Court held that, in order to recover attorneys’ fees
pursuant to fee-shifting statutes which award fees to the
“prevailing party,” a party must secure either a judgment
on the merits or a court-ordered consent decree. 532 U.S.
at 600. In addition to the fact that the ECPA awards fees
to a party who has succeeded in an action, rather than to
the “prevailing party” cited in the statutes discussed in
Buckhannon, Plaintiff Freedman’s receipt of summary
judgment on his ECPA claim constitutes a judgment on the
merits which satisfies Buckhannon. Similarly, Plaintiff’s
effort to recover attorneys’ fees is not thwarted by J.C.
v. Regional School District, which denied a plaintiff’s
motion for attorneys fees where he was awarded partial
summary judgment in an action arising Page 4 under the
Individuals with Disabilities in Education Act. The
plaintiff in that case had prevailed in an administrative
hearing held pursuant to the statutory scheme of the IDEA,
and the district court entered partial summary judgment in
favor of the plaintiff on an issue that was decided by the
administrative hearing. J.C., 278 F.3d at 122. The Second
Circuit concluded that a judgment based on a decision by an
administrative panel, regulated by a statutory scheme, does
not rise to the level of judicially sanctioned relief. Id.
at 124-25. However, nowhere in J.C. does the Second Circuit
state categorically that summary judgment cannot constitute
judicially sanctioned relief for which a party is entitled
to attorneys fees under Buckhannon. The Second Circuit on
other occasions has upheld awards of attorney fees to
parties who prevail on summary judgment without any mention
of that being an issue. See, e.g., Mr. L. v. Sloan, 449
F.3d 405 (2d Cir. 2006). Furthermore, the fact that
Plaintiff only received damages as a result of an Amended
Judgment by the Court, rather than by a finding by the
jury, is also inconsequential to Plaintiff’s entitlement to
fees. Buckhannon requires that an award be judicially
sanctioned, 532 U.S. at 603, but it does not specifically
require that it be decided by a jury. An Amended Judgment
ordered by the Court such as the one in this case meets the
Buckhannon test. Finally, the fact that Plaintiff received
only nominal damages does not negate the fact that he
received a judicially sanctioned judgment on the merits.
Id. at 604 (“We have held that even an award of nominal
damages suffices under this test.”). See also Farrar v.
Hobby, 506 U.S. 103 (1992).

Defendants also argue that the Court should not award
attorneys’ fees because Plaintiff merely achieved a
technical victory of nominal damages. (Defs.’ Renewed
Objection at 5.) However, the Second Circuit has made clear
that the award of attorneys’ fees should not be tied to the
amount of damages a plaintiff recovered. See Cowan v.
Prudential Ins. Co., 935 F.2d 522, Page 5 526 (2d Cir.
1991); DiFilippo v. Morizio, 759 F.2d 231 (2d Cir. 1985);
see also Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2d
Cir. 1999). In this case, Plaintiff has received the
statutorily provided minimum damages. He did prevail on his
ECPA claim and is therefore entitled to attorneys’ fees,
regardless of the limited amount of damages awarded.

The amount of damages awarded to Plaintiff does, however,
affect the reasonableness of the amount of attorneys’ fees
he seeks to recover. The starting point in calculating a
reasonable fee is the “lodestar” figure, calculated as the
“number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The party seeking
attorneys’ fees must submit evidence supporting the claimed
number of hours worked and the rates charged. Id.; see also
Kirsch v. Fleet Sheet, 148 F.3d 149, 173 (“Applications for
fee awards should generally be documented by
contemporaneously created time records that specify, for
each attorney, the date, the hours expended, and the nature
of the work done.”). The Court may reduce the award where
documentation of hours is inadequate and should exclude
hours that are “excessive, redundant, or otherwise
unnecessary.” Hensley, 461 U.S. at 433-34 (“Hours that are
not properly billed to one’s client also are not properly
billed to one’s adversary pursuant to statutory
authority.”) (emphasis in original).

Calculation of the lodestar requires the Court to determine
the “prevailing market rates” for services reasonably
rendered. Blum v. Stenson, 465 U.S. 886, 895 (1984). Fee
applicants have the burden of producing evidence sufficient
to convince the court that the rates requested are
consistent with rates prevailing in the community “for
similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Id. at 896. A rate determined
on the basis of the attorneys’ affidavits and any
additional evidence they produce pertaining to Page 6
prevailing market rates will generally be deemed to
reasonable. Id.

Plaintiff moves the Court to award him $250,045.08 in
attorneys’ fees based on the following rates: in 2003, an
hourly rate of $185 for attorney Calvin K. Woo, $275 per
hour for attorney Daniel K. Klau, and $375 per hour for
attorney James K. Pickerstein; in 2004, an hourly rate of
$195 for attorney Woo, $305 for attorney Klau, $405 for
attorney Pickerstein, $100 for paralegal Kristi Phillips,
and $70 for project assistant Martha J. Black; in 2005, an
hourly rate of $215 for attorney Woo, $315 for attorney
Klau, $420 for attorney Pickerstein, $125 for paralegal
Phillips, and $75 for project assistant Black. Attorney
Klau submitted his affidavit that the rates requested are
the prevailing market rates and constitute the rates that
they each charge private clients. Without having submitted
affidavits by all attorneys attesting to the basis for
their relatively high fees for the New Haven and Hartford
markets, Plaintiff has not met his burden of providing
evidence that the rates requested by all attorneys “are in
line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill,
experience, and reputation.” Blum, 465 U.S. at 896.
Accordingly, the Court finds Mr. Woo’s rates reasonably to
be $185 in 2003 and 2004, and $2005; Mr. Klau’s rates
reasonably to be $275 throughout the litigation; and Mr.
Pickerstein’s reasonable rates to be $350 throughout the

Plaintiff’s lodestar calculation for attorneys’ fees is
also based on his attorneys’ expenditure of approximately
1000 hours litigating this case over the course of nearly
two and a half years. Plaintiff maintains that he sought to
minimize fees by moving early in the action for partial
summary judgment on his ECPA claim and that, because
Defendants never once made a settlement offer, Plaintiff
felt compelled to prepare the case for trial to pursue his
award of attorneys’ fees. (Pl.’s Mem. of Law in Supp. of
Mot. for Attorneys’ Fees at 5.) Defendants Page 7 contend
that Plaintiff is only entitled to attorneys’ fees for time
spent in support of successful litigation and that any
award to Plaintiff should be proportional to the level of
his success. (Defs.’ Opp. Mem. at 6-7.) In general, an
award of attorneys’ fees should be proportional to level of
success achieved as a result of the litigation. Where a
plaintiff “has achieved only partial or limited success,
the product of hours reasonably expended on the litigation
as a whole times a reasonable hourly rate may be an
excessive amount. This will be true even where the
plaintiff’s claims were interrelated, nonfrivolous, and
raised in good faith.” Hensley v. Eckerhart, 461 U.S. at
435-36. Distinct claims must be treated as if they arose in
separate lawsuits, and “no fee may be awarded for services
on the unsuccessful claim.” Id. at 435. The Court has
discretion to determine a reasonable number of attorneys’
hours for which Plaintiff should be compensated, whether by
identifying specific hours that should be eliminated or by
simply reducing the award to account for the limited
success. Id. at 436-37.

Although Plaintiff prevailed on summary judgment on his
ECPA claim and was awarded damages in an Amended Judgment,
he did not prevail at trial on any of his remaining claims.
While the trial may have also influenced future police
department procedure, the only claim on which Plaintiff
ultimately prevailed was resolved on February 4, 2004, when
summary judgment entered for Plaintiff on his ECPA claim.
Accordingly, time for services throughout the litigation
cannot be reasonably attributed to the one claim on which
Plaintiff prevailed. Time prior to February 4, 2004 can
only be compensated if it contributed to the successful
claim, even if it also contributed to unsuccessful claims.
Only 2.1 hours listed in Attorney Klau’s affidavit were
clearly dedicated to work related to the ECPA claim.
Otherwise, the affidavit does not clearly state the extent
to which work performed before February 4, 2004 was related
to the ECPA Page 8 claim, and so the Court will
arbitrarily give credit to Plaintiff for a third of those
hours, assuming the remainder is attributable solely to
claims on which he did not prevail. Duplication of services
by several attorneys is subject to question and factors
into the Court’s determination of a reasonable number of
hours. Plaintiff shall be awarded fees for 29 hours of work
performed by Attorney Woo at the rate of $185 per hour
($5,365.00), 28.6 hours performed by Attorney Klau at the
rate of $250 per hour ($7,150.00), and 3.67 hours performed
by Attorney Pickerstein at the rate of $350 per hour
($1,284.50), for a total award of $13,799.50.

Plaintiff also requests that the Court award him $6,135.58
in costs for computer-assisted legal research. The charges
for online legal research may properly be included in a fee
award. Arbor Hill Concerned Citizens Neighborhood Ass’n v.
County of Albany, 369 F.3d 91, 98 (2d Cir. 2004). For the
reasons discussed above, Plaintiff is only entitled to
reimbursement for research fees related to the claim on
which he prevailed, and so he will not be awarded fees for
research conducted after February 4, 2004. Because
Plaintiff has not submitted records demonstrating which
research fees were incurred pursuant to work related to
which claims, the Court will award one-third of Plaintiff’s
pre-February 4, 2004 research costs as attributable to his
ECPA claim. Accordingly, Plaintiff is awarded $1,074.52 in


For the foregoing reasons, Plaintiff’s motion for
attorneys’ fees and costs [Doc. No. 131] is granted in
part. Plaintiff is hereby awarded $13,799.50 in attorneys’
fees and $1,074.52 in costs. Plaintiff shall address his
request to recover costs with the Clerk.