Opinion
No. 99 CIV. 10158 (DLC).
October 17, 2000.
For the Plaintiff: Leonard Kreinces KREINCES ROSENBERG, P.C.
For the Defendant: Bruce Levinson.
OPINION ORDER
Defendant Sun Pacific Enterprises ("Sun Pacific") moves for final judgment in this appeal from a reparation award of the Secretary (the "Secretary") of the United States Department of Agriculture (the "U.S.D.A."). Sun Pacific also moves for an award of interest, attorney's fees, and a $300 handling fee. Plaintiff Frankie Boy Produce Corp. ("Frankie Boy") opposes only the award of interest and attorney's fees.
PROCEDURAL HISTORY
Sun Pacific filed a complaint with the U.S.D.A. on July 17, 1999, seeking payment for seven shipments of tomatoes it had sold to Frankie Boy. Sun Pacific had shipped the tomatoes in June and July of 1997, from Exeter, California to Hunt's Point market in Bronx, New York. On September 1, 1999, the Secretary issued a decision and order awarding $39,712.88, plus interest, to Sun Pacific. This amount constituted the full contract price for shipments three, five and seven, and a reduced price for shipments one, two, four and six, where the Secretary found the tomatoes had arrived excessively damaged. Frankie Boy appealed the Secretary's decision to this Court on September 30, 1999.
Defendant Sun Pacific Enterprises ("Sun Pacific") moved for summary judgment, based on the findings of the Secretary. By Opinion and Order dated July 17, 2000, this Court granted summary judgment with respect to shipments three, five and seven. The Court denied summary judgment with respect to the remaining shipments, finding a genuine issue of fact with respect to the amount of damages by which the contract price of the tomatoes should be reduced. Sun Pacific has now accepted Frankie Boy's calculations with respect to those shipments, and moves for entry of final judgment on that basis. With the entry of the final judgment, Sun Pacific will be entitled to $21,016.92 of the $39,712.88 awarded by the Secretary.
DISCUSSION
I. Attorney's Fees
A. Prevailing Party
Under the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499a et seq., when a decision of the Secretary is appealed to a district court, the "[a]ppellee shall not be liable for costs in said court and if appellee prevails he shall be allowed a reasonable attorney's fee to be taxed and collected as part of his costs." 7 U.S.C. § 499g(c). If the appellee prevails, an award of attorney's fees is mandatory; it is not within the discretion of the district court. See Robinson Farms Co. v. D'Acquisto, 962 F.2d 680, 684 (7th Cir. 1992); see also Tray-Wrap, Inc. v. Meyer Tomatoes, No. 90 Civ. 7688 (DLC), 1996 WL 54321 at *2 (S.D.N.Y. Feb. 9, 1996)
Frankie Boy's contention that Sun Pacific is not the prevailing party is without merit. In Robinson Farms, the Seventh Circuit noted that the Supreme Court has held that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Id. at 682-83 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Seventh Circuit rejected the contention that a reduction in the amount awarded by the Secretary means that an entity is not a prevailing party before the District Court. See id. at 683. When a party receives some of the relief sought and has judgment entered in its favor, it is the prevailing party. See id. at 684.
Frankie Boy appealed the Secretary's award in favor of Sun Pacific; Sun Pacific then was forced to incur legal expenses in order to defend the award. Although Sun Pacific has accepted a reduced award with respect to certain shipments, this Court affirmed the Secretary's full award with respect to the others. Moreover, judgment will be entered in its favor. Accordingly, Sun Pacific is the prevailing party in this litigation. See Robinson Farms, 962 F.2d at 683-84.
B. Amount of Award
The Court must determine whether Sun Pacific's request for fees is reasonable. "When fees are requested, `[t]he burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required.'"Tray-Wrap, 1996 WL 54321 at *1 (quoting F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987))
Sun Pacific seeks attorney's fees in the amount of $24,667.25. This amount represents approximately 156 hours of work: 24.75 hours of local counsel, billed at $195 per hour; and 131.20 hours of principal counsel, including approximately 125 hours of associate time billed at $150 per hour. Frankie Boy does not object to the hourly rates charged by Sun Pacific's attorneys, but claims (1) that the use of principal and local counsel caused duplication of work for which Frankie Boy should not be billed; (2) that the time spent on certain tasks — particularly the 53 hours spent on the preparation of Sun Pacific's motion for summary judgment — was excessive; and (3) that the award should be reduced to be proportionate with the approximate $21,000 amount of the final award.
First, having reviewed the detailed time records submitted by Sun Pacific, the Court determines that neither the division of labor between principal and local counsel nor the number of hours worked as a whole was unreasonable or excessive. Where an out-of-state defendant such as Sun Pacific is forced to defend itself in a lawsuit in New York, it is reasonable and expected for that defendant to be represented both by out-of-state and local counsel. The number of hours spent on various tasks, and in particular the 53 hours spent in preparing Sun Pacific's motion for summary judgment, is also reasonable in light of the nature of and need for the work. In particular, Sun Pacific's motion for summary judgment was a substantial motion with significant merit.
The Court also declines to reduce the award in light of the amount of the ultimate award. Although "it is rarely proper to award fees in an amount that exceeds the amount involved in the litigation," Krear, 810 F.2d at 1264 (discussing New York law), Frankie Boy has provided no authority holding that attorney's fees cannot or should not exceed the amount actually recovered. To the contrary, construing the fee-shifting provision in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Second Circuit "has consistently rejected the notion that an award of attorneys' fees be proportional to the amount of damages recovered." Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 160 (2d Cir. 1992). See also Ouarantino v. Tiffany Co., 166 F.3d 422, 424 (2d Cir. 1998) (in Title VII case, attorney's fees can be awarded for unsuccessful as well as successful claims where they are "inextricably intertwined" and "involve a common core of facts or are based on related legal theories"). The fees sought by Sun Pacific are "reasonable in relation to the results obtained." Dunlap-McCuller, 980 F.2d at 160. (quoting Hensley v. Eckerhart, 461 U.S. 424, 440 (1983)). Accordingly, attorney's fees will be awarded in the amount of $24,667.25.
II. Interest
The Secretary awarded Sun Pacific pre-judgment interest at ten percent per annum from August 1, 1997. Frankie Boy argues that such an award would be inequitable. Because "PACA does not provide for the award of prejudgment interest, . . . under federal law such an award rests in the Court's discretion." E. Armata Inc. v. Platinum Funding Corp., 887 F. Supp. 590. 595 (S.D.N.Y. 1995). See also Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071-72 (2d Cir. 1995).
Pre-judgment interest generally is appropriate in PACA cases because it is consistent with Congress' intent to protect agricultural suppliers. See Armata, 887 F. Supp. at 595. The ten percent rate of interest comports with awards in comparable cases, and is not unreasonable. See Tray-Wrap, Inc. v. Meyer, No. 90 Civ. 7688 (DLC), 1994 WL 710804 at *7 (S.D.N.Y. Dec. 20, 1994) (thirteen percent); Melmarkets, Inc. v. Victor Joseph and Son, Inc., No. 89 Civ. 6585 (PNL), 1992 WL 350794 at *7 (S.D.N Y Nov. 19, 1992) (thirteen percent)
The Court finds, however, that awarding interest from August 1, 1997, which is approximately the time of the shipments at issue, would be inequitable in this case. Four of the shipments arrived with substantial damages, for which the Secretary determined that the amount owed to Sun Pacific would be offset. The remaining shipments were inspected too late for a reliable determination of damage upon arrival. Accordingly, interest is awarded from September 1, 1999, the date of the Secretary's decision. Cf. Tray-Wrap, 1994 WL at *7.
CONCLUSION
For the reasons stated, Sun Pacific's motion for the entry of final judgment is granted. Judgment shall be entered for Sun Pacific in the amount of $21,016.92, plus pre-judgment interest at ten percent per annum from September 1, 1999; attorney's fees of $24,667.25; and the $300 handling fee awarded by the Secretary. The Clerk of Court shall close the case.
SO ORDERED: