Opinion
Civil No. 00-3432 (JBS).
September 16, 2004
Willan Franklyn Joseph, Esq., Philadelphia, PA and Paul J. Drucker, Esq., Law Office of Lawrence G. Metzger, Philadelphia, PA and Theresa D. Brown, Esq., Willingsboro, NJ, Attorneys for Plaintiffs, Grace Levesque and Dawn McDonough.
Edward R. Murphy, Esq., Elizabeth A. Dalberth, Esq., Murphy O'Connor, LLP, Cherry Hill, NJ, Attorneys for Defendants.
OPINION
This matter comes before the Court upon the application of Plaintiffs for an Order awarding supplemental attorneys' fees in the amount of $26,920.00.
The Court has reviewed Plaintiffs' submissions concerning the amount of fees and expenses incurred, and Defendants' opposition and finds that the reasonable fees which Defendants must pay are $21,460.00, for the reasons now discussed.
I. BACKGROUND
Plaintiffs filed a Complaint on July 14, 2000, alleging violations of the New Jersey Law Against Discrimination ("NJLAD" or "LAD"); Title VII, 42 U.S.C. § 2000e et seq.; and 42 U.S.C. § 1983. When this sexual harassment case began, Plaintiffs were Salem County's only female sheriff's officers. Grace Levesque, a then sergeant and 17-year veteran, was fired on April 17, 2001 for alleged gross misconduct or fraud in claiming entitlement to four (4) hours of overtime pay totaling $105.28. Ms. McDonough began working as a sheriff's officer in January 1993, and still works in the non-supervisory rank.
A trial was scheduled before the Honorable Stephen M. Orlofsky on March 10, 2003. On that date, and before selection of the jury, a settlement conference was held by Judge Orlofsky and an agreement was reached.
This case was brought before former District Judge Stephen M. Orlofsky. Following Judge Orlofsky's resignation, effective September 1, 2003, this case and others were reassigned to the undersigned.
The parties agreed, and former Judge Orlofsky also ordered, that the reasonable amount of Plaintiffs' attorneys' fees and litigation costs would be determined through mediation before a U.S. Magistrate Judge and, if unsuccessful, upon motion to the court, whose decision, the parties agreed, would be final and non-appealable.
On May 15, 2003, Magistrate Judge Ann M. Donio conducted a mediation session. The dispute, however, was not resolved. Thereafter, Plaintiffs filed their fee petition on May 23, 2003. Defendants then filed an informal letter request on May 29, 2003, asserting that discovery was necessary to respond to the fee petition and asking for a conference.
Magistrate Judge Donio conducted a telephone conference on the issue on June 10, 2003, at which time she issued an Order requiring Defendants to file their motion for discovery by June 20, 2003, and requiring any opposition to the motion to be filed by June 30, 2003. Judge Donio also extended the time within which Defendants had to file their response to the fee petition following resolution on the motion for discovery.
Thereafter, Defendants filed their motion, returnable on July 18, 2003, for an Order granting discovery. Plaintiffs filed timely opposition to the motion on June 30, 2003. While the motion for discovery was pending, Plaintiffs filed a motion for an interim award on or about July 11, 2003. Defendants, upon receiving the motion on July 14, 2003, wrote to the Court inquiring as to whether any response was required given the Court's June 12, 2003 Order. The Court conducted another telephone conference on July 21, 2003, and set down the motion for oral argument on July 29, 2003. The Court advised counsel that it would address the issue of the deadline for filing a response to the motion for interim relief at the oral argument on July 29, 2003.
On August 4, 2003, Judge Donio denied Defendants' motion for discovery and ordered Defendants to respond to the entire fee petition by August 21, 2003. Furthermore, Judge Donio directed that the interim petition did not require a response, given the August 21, 2003 deadline for responding to the entire petition.
The complete petition for attorneys' fees was to be decided by this Court. However, in reviewing the petition and defense counsels' objections thereto, the Court concluded that it could not adequately evaluate the fee petition based on the record before it. Therefore, on December 11, 2003, following a telephone conference with the parties, this Court requested additional briefing on Defendants' allegations of overlap and double-billing. Both sides submitted the requested information and this Court issued an Opinion and Order on February 11, 2004, awarding fees and costs to Plaintiffs in the total amount of $274,643.10.
On February 23, 2004, Plaintiffs' attorneys filed a letter request for supplemental attorneys' fees. Plaintiffs now move for an award of additional attorneys' fees for the time spent in litigating the original fee petition and in performing the investigation, providing confirmatory information, and preparing the supplemental briefing requested by this Court.
II. DISCUSSION
Under the "American Rule," all parties to litigation are responsible for bearing the cost of their own attorneys. Any deviation from this general concept must be based on specific statutory authorization or some other longstanding exception to the rule. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).
Section 1988 of 42 U.S.C. — the attorneys' fee statute for proceedings in vindication of civil rights violations brought under 42 U.S.C. § 1983 — as well as Title VII and the NJLAD all provide for the mandatory award of reasonable attorneys' fees and costs of litigation to successful claimants in civil rights cases. Moreover, the Court of Appeals for the Third Circuit has held that under the Civil Rights Attorney's Fees Awards Act of 1976 ("CRAFAA"), 42 U.S.C. § 1988, fees for preparing a motion requesting costs and fees, or "fees on fees," are generally recoverable. Hernandez v. Kalinowsky, 146 F.3d 196, 198 (3d Cir. 1998). See also Prandini v. National Tea Co., 585 F.2d 47 (3d Cir. 1978) (finding attorneys entitled to award for time spent in preparing and presenting fee petition and in successfully appealing the first fee award).
A. Standard for Computing Fee Awards
The "starting point" for determining what attorneys' fees are reasonable in any case is to calculate a "lodestar" amount; "that is, the number of hours reasonably expended multiplied by a reasonable hourly rate." Blakely v. Cont'l Airlines, Inc., 2 F. Supp. 2d 598 (D.N.J. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). When calculating the lodestar, the district court must "carefully and critically evaluate the hours and the hourly rate set forth by counsel." Blakely, 2 F. Supp. 2d at 602. The lodestar formula is presumed to yield a reasonable attorneys' fee which is "adequate to attract competent counsel, but which does not produce a windfall to attorneys." Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (citing Burlington v. Dague, 505 U.S. 557 (1992)).
The lodestar method thus requires this Court to undertake a three-step analysis: (1) determine a reasonable hourly rate, multiply it by (2) the number of hours reasonably expended, considering the adverse party's objections; and (3) decide whether any final adjustment is warranted. See Hensley, 461 U.S. at 433.
1. Time Reasonably Expended
Plaintiffs' counsel bill, in the instant petition, for a total of 111.90 hours: 84.70 hours for Mr. Joseph and 27.2 hours for Mr. Drucker. These billing entries primarily reflect three categories of activity: (1) Plaintiffs' response to defense counsel's request for discovery; (2) a petition for interim fees; and (3) the certification process undertaken in response to this Court's instructions.
This figure has been adjusted downward from the 123.30 total hours originally sought, which resulted from a math error by counsel contained in the initial supplemental fee petition.
a. Time Expended Responding to Defense Counsel's Request for Discovery
The time entries relating to the issue of discovery, for which counsel billed 58.1 hours, are a response to Defendants' request for discovery on the original fee petition. Defendants took the position that discovery on the fee petition was necessary in order to properly respond and therefore filed a motion for a discovery order. Plaintiffs, at all times, opposed this request, deeming it a litigation strategy intended to obstruct and delay. Ultimately, Magistrate Judge Donio issued an Opinion in this matter denying Defendants' discovery request. (8/04/03 Opinion of Magistrate Judge Ann Marie Donio.) Plaintiffs' counsel thus prevailed on the issue of discovery and their billing entries for time spent with respect to this issue are appropriate. This Court therefore finds 58.1 hours to be a reasonable amount of time for such work and will order Plaintiffs to be compensated for this time by Defendants.
b. Time Expended on the Petition for Interim Fees
Billing entries for Plaintiffs' petition for interim fees amount to 11.4 hours, representing time expended entirely by Mr. Joseph. Defense counsel takes issue with these time entries, claiming that Plaintiffs' counsel was not successful on this motion and therefore are not entitled to the associated fees. Plaintiffs' counsel responds that the motion for interim fees was not denied, but was held instead in abeyance.
Plaintiffs filed their fee petition on May 23, 2003. Thereafter, on May 29, 2003, Defendants filed an informal letter brief, asserting that discovery was necessary to respond to this fee petition. Defendants subsequently filed their discovery motion, returnable on July 18, 2003. While this motion was pending, Plaintiffs filed a motion for an interim fee award on or about July 11, 2003. Magistrate Judge Donio ultimately denied Defendants' motion for discovery and ordered Defendants to respond to the entire fee petition. Judge Donio further ruled that the interim petition did not require a response, given the directive that Defendants respond to the entire petition by August 21, 2003. In this Court's opinion, the interim fee petition, though a response to Defendants' motion for discovery in response to the original petition, created unnecessary costs, was not necessary, and is therefore not compensable. The Court will therefore deduct a total of 11.4 hours from Plaintiffs' supplemental fee request for the time spent on the petition for interim fees.
c. Time Expended on Providing Certifications
In the process of deciding the attorneys' fee petition that was before this Court at the end of last year, Mr. Joseph was directed to review his records and explain both to defense counsel and the Court all time charges for certain cases on days when he billed over four hours on the instant case. Mr. Joseph did so, in the amount of 41.1 hours. The Court required Mr. Joseph to undertake a tedious review of his files in other cases, many of which were closed for several years, to ascertain, among other things, whether he was seeking compensation for time expended in this case for days he was actually working fully on other cases, as alleged by the Defendants in their opposition. In its February 11, 2004 Opinion, this Court found every time charge explained in the certifications submitted to be accurate and compensable; it did not, notably, find any evidence to support Defendants' claims of over-billing. Therefore, this Court finds the 41.1 hours of time spent in preparing the requested certifications to be fully compensable under law. See New Jerseyans for a Death Penalty Moratorium v. New Jersey Dept. of Corrections and Devon Brown, 850 A.2d 530 (N.J.Super.Ct. App. Div. June 16, 2004) (awarding petitioner full fee in connection with fee application where extra work was done to comply with the court's requests regarding fees).
d. Defendants' Requests for General Deductions
Defendants argue that Plaintiffs' supplemental fee application is subject to a general reduction because Plaintiffs' attorneys were not fully successful in their fee application. Defendants, relying upon SPIRG v. Monsanto Co., 727 F. Supp. 876, 886 (D.N.J. 1989), argue that when plaintiffs do not fully succeed in recovering their requested fees, the supplemental fee award may be reduced to reflect the incomplete success on the fee award, and the appropriate approach can utilize a general reduction of the lodestar, a complete deduction of the hours spent on wholly unsuccessful claims or a combination of both methods. As this Court has examined each category of fees requested in the supplemental petition separately and rendered individual determinations as to the appropriateness of the time expended respectively, no overarching general reduction is necessary. To do so would be to doubly discount the time expended on unsuccessful efforts.
Defendants also accuse Mr. Joseph of billing for duplicative work. In his reply brief, Mr. Joseph explained this as an oversight — the result of his computer printing these entries out twice, resulting in a final number that was improperly and accidentally inflated. The numbers presently before the Court have been adjusted accordingly to reflect the true time spent on each of the tasks billed and present no additional problems.
Defense counsel allege that Plaintiffs' attorneys billed for unreasonable inter-office communications as well. A review of the time sheets for Mr. Joseph and Mr. Drucker reveal that at no time did counsel both bill for the same work product. There is no evidence of duplicative billings for conversations, correspondence or meetings between counsel at any time. Furthermore, although Defense counsel takes issue with the fact that both Mr. Joseph and Mr. Drucker represented the plaintiffs in this matter and participated in proceedings together, this Court finds nothing improper in their doing so. At no time did Mr. Joseph or Mr. Drucker bill for the same work product. This Court simply cannot understand the basis for Defendants' position and finds it entirely unwarranted.
Defense counsels' final argument concerning counsels' time charges is an attack on a time entry for a telephone conversation between Mr. Joseph and his client, Dawn McDonough, who had settled with Defendants prior to the attorneys' fee petition being submitted. This Court finds the 0.20 hour billing entry to be permissible as a brief conversation advising plaintiff McDonough of the status of her case.
2. Reasonable Hourly Rate
Mr. Joseph has billed his time at a reduced rate of $200.00 per hour for this additional fee request and defense counsel lodges no objection to this. This Court finds this hourly rate to be appropriate and therefore makes no adjustments.
Defense counsel asserts, however, that Mr. Drucker's hourly rate must be reduced from his requested $250.00 per hour to $200.00 per hour based upon footnote 3 of this Court's February 11, 2004 Opinion. However, the time charges for which counsel are currently seeking payment, and which this Court has held to be compensable, are not for the fee application itself but for the litigation engendered by defense counsels' repeated non-meritorious objections. Many of the issues were, from Plaintiffs' counsel's perspective, novel, and involved significant research, discovery, litigation, and argumentation that exceed the mere preparation of a fee petition application for which a reduced hourly rate is appropriate. Therefore, this Court finds that Mr. Drucker's requested hourly rate of $225.00 per hour to be appropriate.
Footnote 3 of this Court's February 11, 2004 Opinion read:
Defendants object only to Plaintiffs' attorney's hourly rate of $225 for time spent preparing the instant fee petition. Defendants contend that the hourly rate to be granted for time spent on the fee application itself is generally less than the hourly rate for time spent on the underlying merits of the case. Robb v. Ridgewood Board of Education, 269 N.J. Super. 394, 411 (Ch.Div. 1993) ("The preparation of a fee application, although often time consuming, ordinarily is not a particularly complex endeavor and does not require a high degree of skill or experience. . . . Plaintiff's lawyer should not recover fees for these services at the same rate as for their work on the merits of the case"). This Court agrees. Thus, the hourly rate for time spent preparing this fee petition shall be reduced to $200 for time spent by Mr. Joseph and $50 for time expended by the paralegals.
3. Final Award Computation
Plaintiffs' counsel seek compensation for a total of 111.90 hours: 84.70 hours for time expended by Mr. Joseph and 27.2 hours for Mr. Drucker's billable time. This Court finds it appropriate to deduct a total of 11.4 hours for time billed by Mr. Joseph for work on the interim fee petition. Thus, the Court will enter a fee award for 73.3 hours at an hourly rate of $200/hour for work performed by Mr. Joseph and for 27.2 hours at an hourly rate of $250/hour for work performed by Mr. Drucker. This results in reasonable fees totaling $21,460.00. The Court finds no additional adjustments to be appropriate at this time.
Moreover, the Court takes no position at this time on Defendants' request that Plaintiffs' counsel be precluded from submitting any more applications for supplemental fees. Though this Court does not conceive that any further application is appropriate if this fee award is timely paid, the Court will not speculate on the appropriateness of additional petitions that may or may not be submitted. That determination shall be reserved for such time, if any, that such a motion is filed.
III. CONCLUSION
For the reasons discussed herein, this Court finds it reasonable and appropriate for Defendants to pay a total of $21,460.00 in supplemental attorneys' fees. This payment is due within thirty (30) days. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the application of Plaintiffs for an order awarding supplemental attorneys' fees and directing Defendants to pay such an amount; the Court having reviewed Plaintiffs' submissions and Defendants' objections; for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS this 16th day of September, 2004 hereby
ORDERED that Plaintiffs' supplemental motion for attorneys' fees [Docket Item No. 131-1] shall be, and hereby is, GRANTED IN PART ; and
IT IS FURTHER ORDERED that $21,460.00 in supplemental attorneys' fees incurred by Plaintiffs' counsel is reasonable; and
IT IS FURTHER ORDERED that Defendants shall pay to Plaintiffs $21,460.00 for such fees within thirty (30) days of the date of this Order; and
IT IS FURTHER ORDERED that the docket be CLOSED.