Opinion
Civil Action No. 95-4574 (JBS).
January 27, 2000
William M. Tambussi, Esquire, Brown Connery, LLP, Westmont, New Jersey, for Plaintiff.
Marc I. Bressman, Esquire, Budd, Larner, Gross, Rosenbaum, Greenberg Sade, P.C., Cherry Hill, New Jersey, for Defendants.
OPINION
I. INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff, Pamela Eaves, prevailed against defendant Cape May County at trial upon her claim of retaliation for exercise of rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-37.1, and a jury awarded Ms. Eaves $90,000. On August 10, 1998, this court entered an order granting plaintiff's motion to award prejudgment interest in the amount of $12,602.46, and Judgment was entered on August 11, 1998 in the "total [amount] of $102,602.46, together with attorney's fees and costs in an amount to be determined pursuant to Rule 54(d), Fed.R.Civ.P." Judgment, entered August 11, 1998.
As a prevailing party, plaintiff seeks recovery of attorneys' fees in the amount of $289,100 plus fees in connection with preparing this application in the amount of $2,975, for a total fee request of $292,075
These amounts are calculated by plaintiff as follows:
William Tambussi — (927 hrs. x $225/hr) = $208,575.00Christine O'Hearn — (104.7 hrs. x $175/hr) = $18,305.00 Darlene Fox-Orlando — (414.8 hrs. x $150/hr) = $62,220.00 Total Hours: 1,446.40 Fee: $289,100.00 Plus time expended preparing the fee application: Christine O'Hearn — (17.0 hrs. at $175/hr) = $ 2,975.00 TOTAL PRE-TRIAL AND POST-TRIAL ATTORNEYS' FEES REQUESTED: $292.075.00
Plaintiff also seeks to recover expenses in the amount of $25,551.60.
Recovery of the following expenditures is sought: Deposition transcripts $ 3,707.25 Expert witness fee 5,640.00 Medical reports 825.00 Investigation $ 4,737.50 Photocopying and binding 4,727.73 Postage 119.03 Federal Express 168.02 Long distance telephone charges 87.97 Fax 389.88 Messenger and courier service 1,132.50
Computerized legal research opinion service 4,016.72TOTAL: $25,551.60
Plaintiff also seeks to recover costs in the amount of $582.
Plaintiff seeks recovery of the following costs: Filing fees $170.00 Trial transcript 132.00 Witness fees 280.00 TOTAL: $582.00
Beyond the counsel fees, plaintiff argues that counsel is entitled to a contingency enhancement under the NJLAD of between 5% and 50%, in the court's discretion.
Pamela Eaves is an American citizen of Chinese national origin who was 64 years old at the time of trial. She was employed as the Treasurer of Cape May County and was demoted to County Comptroller on July 8, 1994. She claimed that her demotion was the result of discrimination based on age, gender, national origin, and political affiliation, and that she was subjected to a hostile work environment, including assignment to a work space that was a former storage closet. On September 15, 1994, Ms. Eaves filed a charge of discrimination with the EEOC, alleging that the defendant County, as well as defendants William E. Sturm (Director of the Board of Chosen Freeholders) and Edmund Grant (her successor as Treasurer) had discriminated against her. She also filed a New Jersey Tort Claim notice arising from these circumstances. On October 11, 1994, the County notified plaintiff that her County Comptroller position would be eliminated on October 14, 1994, prompting Ms. Eaves to amend her EEOC claim on October 13, 1994 to include a charge of retaliation for exercise of her rights. She became distraught and depressed. She ended up in the position of Supervising Account Clerk and requested sick leave. Her sick leave and disability status continued until October 30, 1995 when her employment was terminated. She claimed a significant loss of salary and benefits as well as humiliation, mental and physical pain, and damage to reputation. After a seven-day trial before a jury, plaintiff prevailed upon only one claim against one defendant, namely, unlawful retaliation by the County of Cape May for exercise of her EEOC and NJLAD rights, and she did not prevail upon any claim of actual discrimination.
The defendant, County of Cape May, opposes this fee request on numerous grounds. Defendant argues that plaintiff's requested attorney's fees must be significantly reduced because of her unsuccessful claims, which defendant argues were distinct from the successful retaliation claim. Defendant also contests the hourly rates claimed by plaintiff's counsel, arguing that the hourly rates are not sufficiently documented as comparable to rates for lawyers of similar skill, experience, and reputation.
Plaintiff filed nine claims against the defendants: (1) discrimination in violation of Title VII and the NJLAD based upon age; (2) gender; (3) national origin; (4) hostile work environment; (5) retaliation; (6) discharge in violation of public policy; (7) discrimination based upon political affiliation; (8) intentional and negligent infliction of emotional distress; and (9) unlawful interference with a contractual relationship. Upon the defendants' motion for summary judgment, this Court dismissed the political affiliation, infliction of emotional distress, and interference with a contractual relationship claims. The remaining claims were tried before a jury. The age discrimination and discharge in violation of public policy claims were dismissed on the defendants' motion for directed verdict at the close of plaintiff's case at trial; the claims of gender and national origin discrimination against defendant Grant was dismissed at the close of the evidence. The remaining claims (for discrimination in violation of Title VII and the NJLAD based upon gender and national origin, hostile work environment and retaliation against all defendants) were submitted to the jury. On May 1, 1998, the jury found no cause of action against the defendants on all remaining claims except for retaliation by the defendant, County of Cape May. The jury awarded the plaintiff $90,000 in compensatory damages for retaliation.
Defendant would have this court reduce Mr. Tambussi's $225 hourly rate and would also have the court reduce Ms. O'Hearn's rate as a fifth year associate from $175 to $150, and reduce Ms. Fox-Orlando's rate as a third-year associate from $150 to $115 per hour.
Defendant also challenges the extent of the time and hourly rate of counsel expended to prepare the fee petition, and defendant also challenges various items of expenses and costs.
While acknowledging that reasonable expenses of preparing the fee petition should be included in the award, defendant argues for a reduction in Ms. O'Hearn's rate to $150 per hour, as well as a reduction in the hours claimed because of defendant's view that plaintiff will not achieve complete success in the petition.
Defendant takes issue with expenses claimed for postage, photocopying, Federal Express, telephone and facsimile, and Westlaw charges as being insufficiently specific or documented as necessary. Defendant would also eliminate $417.50 for the allegedly unnecessary transcripts of depositions of Harry Scott and Philip Mattalucci, while questioning whether costs of deposition transcripts of Diane Rudolph, Mr. Taylor, Ms. Mathis, Ms. Fausey, Ms. Oleferuk, and Ms. Downey are reasonable, arguing these witnesses were irrelevant to plaintiff's retaliation claim. Defendant challenges the investigation fees of $4,737.50, arguing also that the investigator's presence at trial was unnecessary
Defendant objects to witness fees totaling $280 for witnesses (Fausey, Mattalucci, Scott, Kaminski, Downey, Mathis, and Oleferuk) whose testimony was arguably irrelevant to the retaliation claim. Defendant does not object to cost of the trial transcript ($132) and filing fees ($170).
In short, plaintiff's counsel seeks fees and costs of as the prevailing party at trial, in which plaintiff prevailed only upon her claim of unlawful retaliation for exercise of rights under Title VII and the NJLAD against one defendant, her employer Cape May County, and failed to prevail upon all claims relating to her underlying charges of discrimination in employment based on her national origin, gender, and age, as well as discrimination based upon political affiliation, and intentional and negligent infliction of emotional distress and unlawful interference with contractual relationship. Defendant has contested many aspects of this petition, including the extent to which plaintiff is a prevailing party, the reasonableness of hours expended for a myriad of counsel's services, the billing rates of each of plaintiff's attorneys, the reasonableness and necessity of expenses claimed, and the reasonableness of costs claimed.
II. ANALYSIS OF FACTS AND LAW
A prevailing party is entitled to recover reasonable attorney's fees and costs under both Title VII and the NJLAD, see 42 U.S.C. § 2000e-5(k); N.J.S.A. 10:5-27.1.
Despite her incomplete success, the court finds that plaintiff Eaves is a "prevailing party" because she succeeded on "any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);accord, Rendine v. Pantzer, 141 N.J. 292, 316 (1995). If a plaintiff achieved, as in this case, only partial success upon her claims, the court must address (1) whether the unsuccessful claims were unrelated to the successful claims; and (2) whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. Hensley at 434-35.
The calculation of fees is substantially similar under both Title VII and the NJLAD, with the major exception of the NJLAD contingency enhancement, discussed below. In each instance, the fees are awarded based upon the familiar lodestar calculations. The "lodestar" amount is the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433; Washington v. Philadelphia Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996); Rendine, 141 N.J. at 334-35. As stated in Rendine, 141 N.J. at 333:
Under the LAD . . . the first step in the fee setting process is to determine the lodestar: the number of hours reasonably expended multiplied by a reasonable hourly rate. In our view, the trial court's determination of the lodestar amount is the most significant element in the award of a reasonable fee because the function requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application.
The party requesting the fee bears the burden of proving that the request is reasonable, Hensley, 461 U.S. at 433, and in response, the party challenging the fee petition must make specific objections to the requested fee. Blakey v. Continental Airlines, Inc., 2 F. Supp.2d 598, 602 (D.N.J. 1998), citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Overall, the lodestar amount "is strongly presumed to yield a reasonable fee." Washington, 89 F.3d at 1035, citing City of Burlington v. Dague, 505 U.S. 557 (1992).
The court will thus determine (a) the reasonable hourly rates of plaintiff's counsel; (b) the reasonable hours expended; (c) the lodestar amount; (d) whether an adjustment to the lodestar is warranted due to plaintiff's partial success; and (e) whether a contingency enhancement should be added to the lodestar.
A. Reasonable Hourly Rates
The reasonable hourly billing rate is calculated according to the prevailing market rates in the community. Washington, 89 F.3d at 1035, citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). The prevailing party has the burden of establishing, by way of satisfactory evidence in addition to the attorney's own affidavits, that the requested hourly rates meet this standard. Washington, id., citing Blum, id. The court should assess the skill and experience of the prevailing attorneys and compare their rates to the rates in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,Rendine, 141 N.J. at 337, and the rates should be based upon current rates rather than the rates in effect when the services were performed.Blakey, 2 F. Supp.2d at 602, citing Rendine, 141 N.J. at 337.
Plaintiff's counsel have documented the fee application with sufficient specificity to make this determination, and the court finds as follows:
William M. Tambussi — Mr. Tambussi was lead counsel and the only attorney to speak at trial. He seeks an hourly rate equal to his billing rate of $225 per hour. His hourly rate request is supported by evidence including the Affidavit of Mark P. Rosen, Esquire, who has been a federal court practitioner in this community for almost 20 years, is familiar with Mr. Tambussi and his experience for prior litigation, and expresses the opinion that Mr. Tambussi's $225 per hour rate for 1998 is reasonable when judged against the rates charged by practitioners with comparable experience and skill in this field. (Rosen Aff. ¶ 7.) Mr. Tambussi is a Certified Civil Trial Attorney who was admitted to the New Jersey Bar in 1983 and who is a partner in his local firm specializing on employment litigation, governmental affairs, litigation and personal injury litigation. (Tambussi Decl. ¶ 4.) Defendant proffers no evidence to the contrary. Indeed plaintiff has submitted rebuttal evidence that, in a similar employment case in Superior Court in 1998, defense counsel's firm herein (Budd, Larner) represented a plaintiff and sought and received fees based upon a $220/hour rate for Martin Aron (admitted to the Bar in 1984), a $235/hour rate for Donald P. Jacobs (admitted to the Bar in 1981), and a rate of $135/hour for fourth year associate Jeffrey P. Gardner (admitted to the Bar in 1994). See Pl. Reply Brief at Ex. B (attaching Budd, Larner's Brief in Phillips v. Flemington Fur Co., et al., Docket No. HNT-L-112-95 (N.J.Super., Law Div., Hunterdon County) at p. 11.)) The court approves this rate of $225 per hour for an attorney of Mr. Tambussi's skill and experience in this field.
Christine P. O'Hearn — Ms. O'Hearn seeks approval of an hourly rate of $175. Ms. O'Hearn was admitted to the Bar in 1993 and in 1998 was a fifth year associate whose practice concentrated in employment litigation and personal injury litigation. Defendant seeks to reduce this rate to $150 per hour in line with the 1998 determination in Blakey ($150 for most senior associates, and $100 for second year associate) and in Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 428 (D.N.J. 1996) ($115 for junior associates in 1996), rev'd in part on other grounds, 174 F.3d 95 (3d Cir. 1999). Plaintiff's reply submission presents no further evidence to justify the $175 rate for a fifth-year associate in 1998. The court finds that the reasonable hourly rate for Ms. O'Hearn as a fifth year associate in 1998 must be reduced to $150 per hour to fall into line with the reasonable rates in this community for attorneys of similar skill and experience.
Darlene J. Fox-Orlando — Ms. Fox-Orlando seeks approval of a $150 hourly rate. Ms. Orlando was admitted to the Bar in 1994 and was thus a fourth year associate in 1998 (including a one-year judicial clerkship), with her practice concentrated in employment litigation. Defendant seeks to reduce this rate to $115 per hour. Budd Larner's own fourth-year associate rate in 1998 was $135, as shown in the Phillips case, supra. The evidence supports the requested rate of $150 for this fourth-year associate who ably assisted in pretrial preparation and who has concentrated on employment litigation.
Therefore, the following hourly rates are approved as reasonable as of the year 1998:
William M. Tambussi '83 $225
Darlene J. Fox-Orlando '94 $150
Christine P. O'Hearn '93 $150
B. Reasonable Hours
The court must determine the number of hours reasonably expended by counsel, excluding unproductive time such as hours that are "excessive, redundant or otherwise unnecessary," Hensley, 461 U.S. at 434. Moreover, there is no rule that the fees awarded may not exceed the damages award,Hensley, 461 U.S. at 424, and the Supreme Court has upheld, in a civil rights case involving police misconduct, a lodestar-based fee award of more than $200,000 even though the verdict was for just $33,000,Riverside v. Rivera, 477 U.S. 561 (1986) (plurality). The lodestar should not be reduced simply because the plaintiff recovered a lower damage award, and the Third Circuit has confirmed that no proportionality review is permitted to establish some ratio between the amount of the damage recovery and the attorney's fee award. Washington, 89 F.3d at 1041-1403;Northeast Women's Center v. McMonagle, 889 F.2d 466, 476-77 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (1990); Cunningham v. City of McKeesport, 807 F.2d 49, 53-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987). The court thus rejects defendant's primary contention that the fee request is excessive as judged by the relationship between the lodestar fees sought and the amount of the verdict because that is a comparison this court cannot make.
The second principal lodestar-related objection, that the hours claimed includes time expended on unsuccessful claims, may result in the exclusion of time spent on unsuccessful discrete claims based on distinctly different facts and theories. Hensley, 461 U.S. at 434.
In recognition of this, at the outset, plaintiff's counsel have deducted 8.4 hours of time from the original billing records which were believed to be duplicative, unnecessary, or not chargeable to the client, (Tambussi Cert. ¶ 11), as well as 70.0 hours of time spent prosecuting plaintiff's claim of termination in violation of public policy. (Id. ¶ 12.) I have reviewed those 78.4 hours of entries and agree that they were properly excluded from the initial submission.
1. Time devoted to witnesses principally relevant to unsuccessful discrimination claims.
Here, defendant objects to various items of services performed by counsel that related to plaintiff's fact witnesses in depositions and trial, where those witnesses provided no testimony about plaintiff's only successful claim, namely, retaliation. Those witnesses were Harry Scott, Philip Mattalucci, Daniel Kaminski, Sheppard Taylor, Terry Downey, Eileen Fausey, Peggy Mathis and Belle Oleferuk. Likewise, defendant would exclude time devoted to deposing and examining defendant's witnesses at trial who gave little or no testimony regarding the retaliation claim, namely, Diane Rudolph, Lucille Cresse, Jeanette Powers, and expert witness Kenneth Moore. Defendant has sought to exclude specific time entries indicated on a marked-up version of plaintiff's counsel's fee affidavit and billing records (Def. Br. Ex. A), which amount to excluding 76.4 hours of Mr. Tambussi's time, 119.6 hours of Ms. Fox-Orlando's time, and 7.6 hours of Ms. O'Hearn's time as allegedly "clearly spent on unsuccessful claims, duplicative entries, and/or unnecessary trial attendance," Def. Br. at 9-10, n. 6 (emphasis in original). Defendant also seeks to exclude other unidentified time entries which are unrelated to the retaliation claim, id, but the descriptions are allegedly too vague to permit it to do so.
It must be recognized that in this case, as in most multiple-claim cases, the attorneys' time records are not kept on a claim-by-claim basis. Where plaintiff alleges multiple bases for recovery under the theories of discrimination, retaliation, and common law claims, it is "unrealistic to suppose that her attorneys would divide their time entries based on closely related causes of action." Blakey, 2 F. Supp.2d at 606. It is thus difficult for defendant, or this court, to pinpoint particular entries that relate solely to an unsuccessful claim.
A look at defendant's objections in Def. Br. Ex. A confirms this difficulty. It is not always apparent, from defendant's opposition papers, why particular items were objectionable. About 200 hours have been crossed off by defense counsel without further indication of reasons or explanation. For example, defendant's first two strike-outs are for time spent by Mr. Tambussi on 9/14/94 and 10/18/94 speaking with and meeting with Mattalucci. Presumably, defendant argues this time is excludable because Mattalucci provided testimony eventually at trial about Ms. Eaves' capable performance in the Treasurer's Office in connection with the unsuccessful discrimination claims but not the retaliation, which came at a time after Mattalucci had no further contact with the Cape May County Treasurer's Office. Similarly, the next objections were to billing entries of Ms. Fox on 9/8/95 and 9/11/95 related to her correspondence to Diane Rudolph, eventually a defense witness at trial who was not specifically asked about the retaliation claim, and to the billing entry of Mr. Tambussi on 9/11/95 for his preparation of a deposition notice for Lucille Cresse, who also eventually was called as a defense witness at trial without giving evidence hearing on the retaliation claim. Numerous other objections are raised to time devoted to depositions of witnesses who did not supply specific evidence at trial relating to the successful retaliation claim, such as preparing for and attending the depositions of Sheppard Taylor (7/18/96, 7/19/96, 7/22/96, 7/23/96, 8/5/96), of Diane Rudolph (8/16/96), of Lucille Cresse (7/24/96, 7/25/96, 11/4/96), of Scott and Mattalucci (11/6/96, 11/7/96, 11/8/96, 5/22/97, 5/27/97, 5/28/97, 5/30/97, 5/31/97, 6/2/97, 6/4/97), and other such witnesses. Defendant also objected to time spent reviewing and summarizing most witnesses' depositions (e.g., 11/4/96, 5/23/97, 5/27/97, 5/28/97 through 6/4/97). Each of these witnesses, however, had factual knowledge of plaintiff's performance as a Cape May County employee and their testimony, which directly related only to the unsuccessful discrimination claims, may be at least partially relevant to the successful retaliation claim. This is because plaintiff was required to prove, as an element of her successful retaliation claim, that she had a reasonable belief in the truth of her claim of discrimination when she filed her charge with the EEOC, and the court's Jury Instruction No. 24 (Apr. 30, 1998) required this element of proof. Plaintiff had to develop at least some evidence supporting the reasonableness of the EEOC charge that she filed on September 15, 1994, which was amended on October 13, 1994. At the trial, the jury was free to determine that plaintiff failed to adduce a preponderance of the evidence of unlawful discrimination, while also finding that she nonetheless had a reasonable belief that the defendants had so discriminated when she filed her EEOC charge.
Rather than parsing seven days of trial testimony of many witnesses on this point, this court must acknowledge that it would be impossible to conclude that all time related to these witnesses pertained solely to the unsuccessful discrimination claim. Undoubtedly, much of the time expended with these witnesses was devoted to the discrimination claim and of little or no use in the retaliation claim, but there is no reliable way to make this calculation on an event-by-event basis over four years of time.
The better course, rather than attempting to segregate these and other efforts as related solely to the unsuccessful claims, is to consider reduction of the lodestar to the extent that the hours expended are excessive given her limited success in the case. Blakey, 2 F. Supp.2d at 606-607. This choice comes from the Supreme Court which directed that the downward adjustment from the lodestar for partial success can be determined in two ways: "the district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37; see, e.g., Rode v. Dellarciprete, 892 F.2d at 1183 (citations omitted); Blakey, 2 F. Supp.2d at 606-607; Rendine, 741 N.J. at 337;Finch v. Hercules, 941 F. Supp. 1395, 1426-27 (D.Del. 1996); see also Norton v. Wilshire Credit Corp., 36 F. Supp.2d 216, 221 (D.N.J. 1999) (same analysis for partial success under Fair Debt Collection Practices Act). The court will address this reduction for partial success in Part II.D, below.
2. Duplicative services
The other objections are addressed now, starting with services that were duplicative. The defendant has objected to occasions when more than one plaintiff's attorney attended a deposition. The court agrees that where experienced trial counsel (Mr. Tambussi) has prepared for the deposition and is conducting or defending it, there is no necessity to have second counsel also preparing and attending for plaintiff. No such need has been demonstrated in this case, and the court will sustain defendant's objections and exclude the following billing entries as duplicative and therefore excessive:
6/27/96 Ms. Fox 5.00 hrs. Attend Eaves dep.
7/11/96 Ms. Fox 3.50 hrs. Attend Eaves dep.
Defendant objects to multiple counsel appearing at trial for plaintiff. The multiple defendants were represented throughout the trial by one attorney, Mr. Bressman, while plaintiff had two attorneys, Mr. Tambussi and Ms. Fox-Orlando. While Ms. Fox-Orlando contributed to plaintiff's success by her preparation work, including research and writing, she was not called upon to argue points at trial nor to conduct examination or cross-examination. Under the circumstances, the hours for actual attendance at trial are duplicative and therefore excessive. Where a daily entry contains tasks for trial preparation and attendance, only the hours for attendance are excluded, as the court finds that the preparation time was reasonable to assist trial counsel. The court sustains defendant's objection to the following billing entries which will be excluded from the lodestar:
4/22/98 — Ms. Fox 9.40 hrs. Attend trial
4/23/98 — Ms. Fox 8.20 hrs. Attend trial
4/27/98 — Ms. Fox 2.50 hrs. Attend trial
4/28/98 — Ms. Fox 7.00 hrs. Attend trial
4/29/98 — Ms. Fox 10.00 hrs. Attend trial
The time for Ms. O'Hearn's trial attendance on the date of 4/29/98 is not excluded because her presence was necessary for the jury charge arguments and conference, for which she had done research
4/30/98 — Ms. Fox 2.00 hrs. Attend trial
4/30/98 — Ms. Fox 10.00 hrs. Attend trial
5/01/98 — Ms. Fox 2.00 hrs. Attend trial
Defendant objects to all three counsel attending oral argument upon the motion for summary judgment on 1/9/97. The court finds that Ms. O'Hearn's attendance with Mr. Tambussi was necessary since she had done a lot of the research and writing on the motion briefs, while Ms. Fox had not. Also, Ms. Fox's time for review of the resulting opinion on 1/23/97 is duplicative of Mr. Tambussi and Ms. O'Hearn and will be excluded. Therefore, the following entries are excluded:
1/09/97 — Ms. Fox 1.00 hrs. Attend oral arg.
1/23/97 — Ms. Fox 0.80 hrs. Review opinion
3. Motion to amend complaint
Defendant seeks to exclude time spent by Ms. Fox and Mr. Tambussi to prepare and file plaintiff's motion to amend the complaint on 6/28/96. This motion was unsuccessful and was dismissed by Order filed 9/5/96. The plaintiff has not shown why this service was nonetheless reasonable or necessary and the court will exclude the following entries:
6/28/96 — Mr. Tambussi 1.50 hrs.
1/23/97 — Ms. Fox 2.90 hrs.
4. Organizing files
Defendant seeks to exclude time expended by Ms. Fox on 7/9/97 and 7/10/97 for reviewing and organizing the file and medical records and to prepare for various depositions. This work was not excessive or duplicative, and the extent to which it was non-productive, because plaintiff was not successful on her claims of discrimination for which these witnesses were primarily used, is considered in the aggregate in Part II.D, below.
5. Motion in limine
Defendant seeks to exclude time expended by Tambussi, Fox, and O'Hearn in connection with defendant's motion in limine on 7/22/97 through 7/30/97. Defendants' motion was granted in part and denied in part by Order filed 9/15/97. Although much of the motion pertained to evidence relevant to the discrimination claim, part of it pertained to defendant's attempt to exclude admissibility of plaintiff's EEOC file, including her complaint to EEOC which formed a necessary element of her retaliation claim. The motion in limine was therefore related in part to plaintiff's successful claim and will not be excluded in this ground. Plaintiff's counsel expended 37.7 hours to prepare the opposition brief which consisted of 19 pages and cited 7 cases. The issues were not complicated and were in fact dealt with in a telephone status conference on 9/12/97. The time expended is excessive to the reasonable needs of defending the motion; 27.7 hours for preparing the opposition will be permitted and 10.0 hours will be excluded as follows:
7/22-30/97 Ms. Fox 10.0 hrs. In limine opposition
6. Klusaritz investigation
Defendant seeks to exclude time related to interviewing potential witness Bill Klusaritz on various dates from 9/12/97 to 10/17/97. The connection of Klusaritz to this case is not disclosed in the Final Pretrial Order, and neither side took his deposition or called him at trial. In the face of a challenge to a billing entry, the burden is upon the plaintiff to explain the circumstances justifying the item, and neither the plaintiff's reply brief nor the record in the case do so in this instance. The following entries related to Mr. Klusaritz are not justified by the record and will be excluded:
09/12/97 Ms. O'Hearn 0.10 hrs. Confer re: Klusaritz
09/15/97 Ms. O'Hearn 0.50 hrs. Confer re: Klusaritz
09/16/97 Ms. O'Hearn 0.30 hrs. Confer with Klusaritz
09/17/97 Ms. O'Hearn 0.70 hrs. Confer with Klusaritz
09/25/97 Ms. O'Hearn 0.30 hrs. Confer with Klusaritz
10/17/97 Ms. O'Hearn 0.60 hrs. Confer with Klusaritz
TOTAL: 2.50 hrs.
7. Other trial preparation
Numerous objections are raised by defendant to trial preparation tasks related to the discrimination issues and witnesses, such as 4/3/98, 4/4/98, 4/5/98, 4/6/98, 4/7/98, 4/9/98, 4/10/98, 4/13/98, 4/14/98, 4/15/98, 4/16/98, 4/17/98, and 4/19/98. These concerns regarding services of counsel directed toward the prosecution of unsuccessful claims will be addressed in Part II.D, below.
8. Fee application hours
Regarding the preparation of the fee application itself, plaintiff is entitled to recover the reasonable expenses of preparing the fee application. Rode, 892 F.2d at 1192; Institutionalized Juveniles v. Sec'y of Public Welfare, 758 F.2d 897, 924 (3d Cir. 1985). The court finds that the hours claimed by plaintiff (17.0 hours by Ms. O'Hearn) are reasonable, as this figure only included time expended on the initial brief and not the reply brief. The fee application time expended will be included in the lodestar.
9. Total of allowable time
In summary, the total exclusions from the lodestar time claimed are:
Tambussi, 1.50 hours; O'Hearn, 7.50 hours; and Fox-Orlando, 69.80 hours. This yields net reasonable hours as follows:
Mr. Tambussi 925.5 hours
Ms. O'Hearn 97.2 hours
Ms. Fox-Orlando 345.0 hours
C. The Lodestar Amount
The lodestar is comprised of the court's determination of the reasonable hours expended multiplied by the court's determination of the reasonable hourly rates. Based upon the above discussion, these figures are:
Mr. Tambussi (925.5 hrs. x 225/hr) = $208,237.50
Ms. Fox-Orlando (345.0 hrs. x 150/hr)= 51,750.00
Ms. O'Hearn (97.2 hrs. x 150/hr) = 14,580.00 Total = $274,567.50
The unadjusted lodestar amount becomes $274,567.50. Next, the court must determine whether this figure is to be reduced for partial success and/or enhanced for a contingency multiplier.
D. Adjustment for Partial Success
After calculating the lodestar, the court should ordinarily next address the defendant's request for downward adjustment for partial success. Rode, 892 F.2d at 1183-84, citing Black Grievance Comm. v. Philadelphia Electric Co., 802 F.2d 648 (3d Cir. 1986), vacated on other grounds, 483 U.S. 1015 (1987). This analysis was summarized by Judge Bassler in Blakey, supra, as follows:
When the prevailing party has only succeeded on some claims, the court must address (1) whether the unsuccessful claims were unrelated to the successful claims; and (2) whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.Blakey, 2 F. Supp.2d at 605, citing Hensley, 461 U.S. at 434. The Third Circuit in Washington, supra, summarized the purpose of the partial success adjustment as assuring "that the amount awarded in counsel fees should reflect the extent to which the litigant was successful. See Hensley, 461 U.S. at 440, 103 S.Ct. at 1943 (`A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.')" Washington, 89 F.3d 1043 (emphasis added in Washington).
Likewise, under the NJLAD, the Supreme Court of New Jersey has held that "a trial court should reduce the lodestar fee if the level of success achieved in the litigation is limited in comparison to the relief sought." Rendine, 141 N.J. at 336. In quoting Hensley, the Rendine court agreed that "[i]f . . . 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." Rendine, 141 N.J. at 336,quoting Hensley, 461 U.S. at 436.
As discussed above, this adjustment applies in this case because plaintiff prevailed on only one claim — retaliation against her for filing an EEOC claim on September 15, 1994 — against only one defendant (Cape May County), while failing to prevail upon her claims that she suffered discrimination in her county employment due to her gender, age, and national origin when she was demoted from Treasurer to County Comptroller on June 29, 1994, and when she was required to work in undesirable office space in July, 1994. She also did not prevail on claims (all arising before her September 15th EEOC complaint was filed) that her employer and supervisors subjected her to a hostile work environment; that she suffered discriminatory treatment based upon her political affiliation; that she suffered intentional and negligent infliction of emotional distress; and that her contract rights were unlawfully interfered with. Thus, the jury found that plaintiff proved that the defendant, County of Cape May (but not defendants William E. Sturn or Edmund Grant), retaliated against her for filing an EEOC complaint by demoting her to Supervising Account Clerk (Jury Verdict Form, Question 3), which occurred on or about October 12, 1994, and the jury awarded damages of $90,000 (id., Question 5) and denied punitive damages (id., Question 6).
As noted above in Part II.B, no further attention is paid to plaintiff's unsuccessful claim for termination in violation of public policy, for which plaintiff already excluded the relevant hours.
Apart from the disparate results achieved on her claims, plaintiff's limited success is also measurable by the damages actually recovered. At the extreme, as the Supreme Court recognized, a plaintiff in a civil rights suit who seeks substantial monetary damages but receives only a nominal damage award of $1 is a "prevailing party" under the fee shifting statute but the reasonable counsel fee may be reduced to nothing if plaintiff did not achieve in any measure the ultimate goal of the litigation. Farrar v. Cain, 113 S.Ct. 566, 574 (1992); see Baumgardner v. Harrisburg Housing Auth., 21 F.3d 541, 546-547 (3d Cir. 1994) (discussing Farrar as addressing cases where money damages were sought and not recovered beyond nominal amount). In the present case, of course, the plaintiff's monetary recovery was far above "nominal."
Plaintiff's recovery was based upon economic and non-economic damages accruing by virtue of the October 12, 1994 demotion from Comptroller to Supervising Account Clerk, for which her employment period ended on October 30, 1995. According to the Joint Final Pretrial Order, plaintiff sought damages for total economic loss of $417,354 exclusive of fringe benefits, according to her expert witness, Dr. Wolf, see JFPTO (filed May 14, 1997) at p. 19. She also sought recovery for physical and emotional inquiries resulting from defendants' actions, beginning with humiliation, pain and suffering from July, 1994 including manifestations of stress, anxiety, depression, and post-traumatic stress disorder and withdrawal, for which plaintiff received psychotherapy and medication. (JFPTO, supra, at pp. 13-17.) Punitive damages were sought based upon defendants' allegedly "outrageous and malicious conduct and their wanton and willful disregard of plaintiff's rights." (JFPTO, supra, at p. 20). The jury's verdict did not specify the precise components of the $90,000 compensatory award. The verdict likely contains compensation that is principally economic wage losses. Plaintiff testified that the unlawful demotion from County Comptroller to Supervising Account Clerk reduced her salary from about $48,000 to $29,000 when she was 62 years old in October, 1994. She became unable to work and received sick pay and disability until her separation from employment on October 31, 1995. Her actual earnings after the demotion were derived from sick pay and long term disability benefits totaling $37,000, according to Dr. Wolf's testimony, which would diminish her economic loss. The jury's verdict is in line with a rather modest view of plaintiff's actual economic losses and pain and suffering compared with her claims in this case. When the verdict is stacked against the pretrial contours of plaintiff's case, it is significant in proving liability for retaliation but modest in the degree of recovery compared with the nature of compensatory and punitive damages sought.
Because much time was devoted to causes of action and theories of damages which were rejected on motion or by the jury, and because the amount recovered was modest compared with the various claims for relief, the lodestar overstates the degree of success, and it is excessive. This is a case in which the unsuccessful claims were "interrelated [to the successful claims], nonfrivolous and raised in good faith," Hensley, 461 U.S. at 436, yet the lodestar amount is excessive in light of "the most critical factor" which is "the degree of success achieved." Id. There is, to be sure, some relatedness between the unsuccessful discrimination and tort claims and the successful retaliation claim, to the extent that plaintiff had to develop some background evidence about her workplace events leading up to her decision to file the EEOC complaint. While the retaliation claim is legally distinct and arises at a later point in time, there is a factual overlap to the limited degree that evidence of the background of plaintiff's EEOC claims of discrimination was necessary to assess whether she had a reasonable basis for filing her EEOC claims. This factual overlap becomes only a question of degree: the amount of time and effort and motion practice pertaining to the discrimination causes of action would have been significantly less if, on the retaliation claim alone, plaintiff needed to place the background facts into the record which gave rise to her belief that she acted in good faith in filing an EEOC complaint without actually having to prove discrimination.
The Third Circuit's Washington case is highly instructive, since the underlying dispute involved attorney's fees in a case in which the plaintiff prevailed on his claim of retaliation for filing state and federal discrimination complaints, while being unsuccessful upon his underlying claims of discrimination in employment. The trial judge evaluated plaintiff's success and reduced the lodestar by one-half, reasoning that five of plaintiff's nine claims did not survive summary judgment and that at trial, the jury ruled against his "primary claim" of racial discrimination and awarded only $25,000 on his retaliation claim.Washington, 89 F.3d at 1043. On appeal, plaintiff's counsel argued that "all of the evidence that was produced regarding the race discrimination claim was necessary in the litigation of the retaliation claim," and that "the fact that the jury awarded $25,000 is not a proper basis for reducing the hours on the lodestar on the theory that the result was not a good one for the plaintiff." Washington, 89 F.3d at 1043-1044. The Third Circuit disagreed, concluding that the district court did not err when it reduced counsel's fees for his failure to prevail on one of his two central claims, that of discrimination. Id. at 1044. The court stated that "the alleged relatedness between the two general claims is too tenuous to support a finding of error." Id.
Plaintiff seeks to distinguish Washington on the ground that there was no factual relatedness between the two general claims in that case (discrimination and retaliation), citing the lower court's discussion at 845 F. Supp. 1107 (E.D.Pa. 1994). Plaintiff argues that in our present case, the same core facts formed the basis for plaintiff Pamela Eaves' claims and that there should be no reduction for partial success. InWashington, the district judge granted defendant's post-trial motion to set aside the jury's favorable verdict on the retaliation claim, the court agreeing that plaintiff Washington had not established a sufficient causal link between his filing of the Pennsylvanian Human Rights Commission (PHRC) and EEOC complaint and his subsequent layoff. 845 F. Supp. at 1111. That administrative complaint, filed in October, 1990, alleged that he had been discriminated against because of his race and age by harassing with disciplinary memos with an intent to destroy his professional career. Id. at 1109. A month later, in November, 1990, the Pennsylvania Supreme Court directed plaintiff's employer, the Philadelphia Court of Common Pleas, to reduce its workforce by 250 employees. The judge focused upon evidence that the layoff (effective in June, 1991) was not causally related to the plaintiff's filing of the PHRC and EEOC complaint, coming nine months later; six months into that time period, plaintiff's performance was rated as "satisfactory," and he was transferred to another section supervising fewer employees but at no reduction in pay. Id. The district court concluded that the trial evidence was undisputed that "despite his supervisors' dissatisfaction with his work, Washington would not have been fired were it not for the [Pennsylvania] Supreme Court's mandate" that required the 250-employee layoff. Id. Despite acknowledging that there was also evidence from which a jury could find an intent to retaliate for the filing of the PHRC complaint, and that the civil action was properly tried as a "mixed motives" case, the district judge concluded that the mandatory mass-layoffs and the documented dissatisfaction with plaintiff's job performance made plaintiff's layoff "almost unavoidable." Id. Significantly, the district court's decision was reversed and the retaliation verdict in plaintiff's favor was reinstated by the Third Circuit. Washington v. Philadelphia County Court of Common Pleas, 47 F.3d 1163 (3d Cir. 1995) (table).
In the Washington case, there were certainly important factual overlaps between the discrimination and retaliation claims. The final layoff decision was made by supervisor Johnson, who had received and approved the various critical evaluations from plaintiff's direct supervisor, DiGuglielmo. Ultimately, Johnson's decision to terminate Washington was based upon his evaluation of Washington's performance, and the jury had to assess whether a racial animus was a factor bringing about his termination. The jury also had to assess whether Washington's filing of his EEOC complaint itself was a causal factor in his termination, and that complaint sought redress of much of the same pre-October 1990 conduct that also forming the basis of his discrimination causes of action. Thus, it is apparent that plaintiff's two primary claims (discrimination and retaliation) had some degree of factual overlap, since plaintiff disputed the motives of the same supervisory decisionmakers in each flowing through an excellent period of time. Nonetheless, as the Third Circuit noted, the unsuccessful discrimination claim and the successful retaliation claim had a relatedness that was "too tenuous" to compel a finding that they were directly related and indistinct. 89 F.3d at 1044.
In the present case, this court finds that the successful claim for retaliation would not have been tried effectively without developing and introducing evidence of the events that led plaintiff to file her EEOC complaint. As in Merriweather v. Family Dollar Stores, 103 F.3d 576, 583-584 (7th Cir. 1996) (affirming district court's finding of substantial relatedness of successful retaliation claim and unsuccessful discrimination claim), plaintiff's prospect of prevailing depended largely upon developing evidence tending to undermine credibility of witnesses and impugning motives that led to her post-complaint demotion, drawing from the history of her disputed job performance in the past. As also shown in Merriweather, however, this overlap is far from complete and there will be a reduction to avoid compensating for services that were not of importance to proving the retaliation claim.
In determining the amount of such reduction, the court must also properly consider, as discussed at length above, the degree of plaintiff's success. In answering the "critical question" under Merriweather, 103 F.3d at 583, of "whether the legal work for which [plaintiff] seeks reimbursement was necessary for the retaliation claim upon which she prevailed," this court concludes that twenty-five percent (25%) of the overall lodestar work was unnecessary to the retaliation claim and therefore excessive. Plaintiff did not have to prove that such discrimination occurred in order to prevail upon her retaliation claim,Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996),Griffiths v. CIGNA Corp., 988 F.2d 457 468 (3d Cir. 1993). In this case, plaintiff's beliefs and her good faith in filing the charges could have been shown with considerably less discovery, factual development, and detail. Many of the witnesses is discovery and at trial, as discussed above, had little actual knowledge, if any, relevant to the retaliation claim. The court further finds that this adjustment is warranted by the partial success achieved in prevailing upon the retaliation claim while not on the other primary (and economically more dominant) claims of discrimination and infliction of emotional distress.
The court will reduce the lodestar by twenty-five percent (25%) based upon partial success. This downward adjustment yields an adjusted lodestar amount of $205,925.63. This is the reasonable attorney's fee for services expended in achieving plaintiff's partial success as the prevailing party.
E. Contingency Enhancement
Under the NJLAD, plaintiff seeks a "contingency enhancement" of the lodestar. Such an adjustment to the lodestar calculation is permitted "to reflect the risk of nonpayment in all cases where the attorney's compensation entirely or substantially is contingent on a successful outcome." Rendine v. Pantzer, 141 N.J. 292, 337 (1995). The New Jersey Supreme Court has defined the "primary rationale for contingency enhancements," which is "to assure that counsel for the prevailing party is paid a reasonable fee by the nonprevailing party." 141 N.J. at 341 (emphasis in original). The court concluded that "contingency enhancements in fee-shifting cases ordinarily should range between five and fifty percent of the lodestar fee, with the enhancement in typical contingency cases ranging between twenty and thirty-five percent of the lodestar." Id. at 343. In Rendine, the Supreme Court assessed the plaintiffs' counsel's risk of nonpayment as "moderate," and that the risk "increased during the course of the litigation by virtue of defendant's vigorous resistance to each element of plaintiffs' claims." Id. at 345. The court determined that one-third contingency enhancement was appropriate. Id.
A contingency enhancement is unavailable under the federal fee shifting statutes such as Title VII, according to the Supreme Court in City of Burlington v. Dague , 505 U.S. 557 (1992), because "[i]t is neither necessary nor even possible for application of the fee-shifting statutes to mimic the intricacies of the fee-paying market in every aspect." Id . at 566-67. Therefore, this enhancement is considered only under New Jersey law to the extent that plaintiff's successful retaliation claim was also based upon the NJLAD.
Similarly, in Szczepanski v. Newcomb Medical Center, 141 N.J. 346 (1995), decided the same day as Rendine, the Supreme Court, in an NJLAD fee shifting case, refused to cap the NJLAD counsel fee at the amount recited in the contingent fee agreement. The court stated, "Although relevant, the fee payable under a contingent fee agreement may bear little relation to the reasonable fee award authorized by statute, and in no event should the amount payable under the contingent-fee agreement serve as a ceiling on the amount payable by statute." Id. at 359.
Further, under New Jersey law, the Szczepanski court has also held that the trial court has a heightened duty to review the lodestar figure "when the fee requested is disproportionate to the damages received." Id. at 366. The court held:
In such cases the trial court should evaluate not only the damages prospectively recoverable and actually recovered, but also the interest to be vindicated in the context of the statutory objectives, as well as any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel's efforts.Id. at 366-367. In Szczepanski, this duty was triggered by the circumstance of a lodestar figure of $135,360 in a case where plaintiff recovered a verdict of $115,441 for retaliatory discharge. The Supreme Court remanded for further consideration "because the disparity between the amount of the judgment and the lodestar-fee request compels the exercise of informed discretion by the trial court in determining a reasonable statutory fee." Id. at 360. These statements in Szczepanski can be reconciled with the Rendine court's general acceptance of the view that ordinarily there is no requirement of proportionality between the recovery and counsel fee awards in civil rights cases, (Rendine, 141 N.J. at 336 (citing Justice Brennan's plurality opinion in City of Riverside, supra, 477 U.S. at 574)), by applying the Szczepanski test of proportionality between the recovery and the fee award as a factor when a contingency enhancement is sought.
In the present case, plaintiff Eaves had a contingent fee agreement with counsel, with no guaranteed fee or reimbursement for out-of-pocket costs and expenses unless there is a recovery, and (unlike Rendine) no provision for a fee based on reduced hourly rates in the event of the no recovery. Plaintiff's counsel seeks an enhancement of 50% which is at the top of the 5-50% range authorized by Rendine. Plaintiff argues that the risk of non-payment was very significant and there was "no reliable prediction of success" because plaintiff's case was largely circumstantial. Pl. Br. at 14. Counsel further notes that since the case was against a public entity, including a former Freeholder Director and the County Treasurer individually, plaintiff may not have been able to retain counsel in this matter easily. Plaintiff notes that defendant's County Counsel, in a press statement after the verdict, noted: "[Plaintiff] faced an almost insurmountable task in trying to persuade a jury that the same government which she portrayed as racially intolerant in 1994 is the very same government which elevated her, as a middle-aged woman of Chinese ancestry, to the position of county treasurer in the first place." Pl. Br. at Ex. B. Ultimately, of course, plaintiff did not prevail upon that aspect of her claim, and her counsel fee should not be enhanced because the discrimination claim was difficult. It is the risk of non-recovery on the successful claim that should be considered.
In assessing the risk of non recovery, defendant argues that pretrial settlement discussions occurred which "substantially reduced plaintiff counsel's risk of nonpayment." (Def. Br. at 13.) Mr. Tambussi had made a pretrial settlement demand of $750,000. Mr. Bressman, on behalf of defendants, recalls that he told Mr. Tambussi in pretrial settlement discussions that he "may have been able to get authority to settle for a high five-figure amount," which ultimately corresponded to the jury's $90,000 verdict. Id. Mr. Bressman stops short of stating that the defendant ever extended such an offer, and, even if they did, it came at the eve of trial when most of the services had already been expended and many of the costs had already been absorbed by plaintiff's counsel. Where such discussions occur so late in the process, they do little to diminish the risk of non-recovery and may just do the opposite, by forcing the case to trial.
The court assesses the risk of plaintiff's non-recovery on the retaliation claim as moderate or typical. This was neither a compelling case nor a weak case for proving retaliation, as the court recognized in its Opinion and Order filed January 21, 1997 which, in relevant part, denied defendants' motion for summary judgment upon the retaliation claim. (See Opinion of 1/21/97 at 24-26.) On the other hand, it is far from clear that the retaliation claim, standing alone, would be likely to produce an enormous verdict of the sort that would yield a contingent fee exceeding the lodestar required to prove it. If plaintiff had prevailed upon her punitive damages claim in connection with retaliation, however, a conceivable verdict could have been in an amount high enough to generate a substantial contingent fee.
The risk of non-recovery must also be tempered by the existence of the fee-shifting statute itself. The prevailing party in an NJLAD claim will receive a fee-shifting award unconstrained by any contingent fee amount because it is calculated under the lodestar. Therefore, a relatively modest verdict (as in the present case) will nonetheless trigger the full recovery of applicable reasonable fees. The aspect of a contingent fee which limits counsel's recovery to a percentage of the recovery is thus absent in the NJLAD case. Such fee shifting provides a strong incentive, based on the lodestar method alone, for counsel to agree to accept cases where the prospects of a favorable verdict in a moderate amount are average. This case is instructive of the strength of the NJLAD incentive to counsel to prosecute such a claim, in which (excluding considerations of costs) the one-third contingent fee equals $30,000 and the calculated lodestar fee equals $205,925.63. Nonetheless, the same is true in many NJLAD cases, and the law of New Jersey permits the contingency factor adjustment to assure active pursuit of such claims addressing important civil rights. Since, as the court has found, the lodestar represents the value of the reasonable services expended to achieve plaintiff's prevailing party status, the adjustment for contingency will still be applied.
Finally, as in Szczepanski, the relationship between the lodestar fee and the recovery is a factor to be considered before determining any enhancement. For this limited purpose, the lodestar of $205,925.63 is compared with the recovery of $102,602.46. This factor suggests that the lodestar amount provides ample compensation to counsel measured against the purely economic value of the results obtained. But one cannot fail to recognize in this case, as also required by Rendine, that an important NJLAD right has been vindicated by this suit, because a public employee has demonstrated that the public entity against which she had sought redress retaliated against her for doing so.
Considering all these factors, the court finds that a fifteen percent (15%) contingency adjustment is appropriate under the NJLAD. This enhancement adjusts the lodestar of $205,925.63 upward by 15% to an adjusted lodestar figure of $236,814.47.
F. Expenses
The expenses for which plaintiff seeks recovery total $25,551.60 and are listed in n. 2, supra. The fee applicant has the burden to adequately document and itemize the requested expenses. Apple Corps. Ltd. v. Int'l Collectors Soc., 25 F. Supp.2d 480, 497 (D.N.J. 1998).
The defendant does not dispute the expenditures of $5,640 for the expert witness fees, but defendant objects to the postage, photocopying, Federal Express charges, telephone, and facsimile charges and Westlaw charges as not having been shown to be reasonable. Defendant says that the plaintiff's billing entries for these amounts are lacking in detail, such as the number of photocopies and charge per copy. As defendant acknowledges, such out-of-pocket expenditures are generally recoverable by a prevailing civil rights plaintiff. See Abrams v. Lightolier, Inc., 50 F.3d 1204, 1223-1226 (3d Cir. 1995); Apple Corps., 25 F. Supp. d at 497-501 (presenting detailed discussion of various expense items).
These disbursements have been itemized in plaintiff's fee petition at Exhibit A, pages 42-61, in detail, including dates, vendors, and amounts. The totals are summarized in Exhibit B to the petition. Mr. Tambussi has certified that all expenditures were solely for this litigation and that he previously eliminated the expenditures he believes were excessive, redundant, or not reasonable, and has included only those amounts he believes to be recoverable, resulting in the reductions shown in Exhibit D to the petition, summarized in note 2, above. (See Tambussi Decl. ¶ 18.) While the documentation is adequate, the reasonableness of these expenditures is less clear.
For example, plaintiff does not respond to defendant's objection regarding investigation expenses of $4,737.50. The itemization, however, details the dates of the investigator's services in serving subpoenas and interviewing various witnesses, and for attendance at trial. (Id., Ex. A at pp. 60-61.) The trial attendance was seven days at $450 per day and included transportation of witnesses and documents to court on three of those dates. The court will eliminate, as unjustified expense, the four trial dates (4/27, 4/28, 4/29, and 4/30) when the investigator was basically an observer at trial, according to the billing entries, thus eliminating $1,800. Investigation expenses of $2,937.50 are approved.
For deposition transcripts, plaintiff seeks reimbursement of $3,707.25. Defendant objects that many of these witnesses were not of relevance to plaintiff's successful retaliation claim. Because the court finds that the discovery process for the retaliation and discrimination claims had some overlap but that 25 percent of the efforts must be subtracted due to the partial success, as discussed above, the court will award the deposition transcript fees in their entirety, subject to the reduction of all eligible expenses by 25 percent.
Medical report expenses are approved for $825.
Photocopying and binding expenses in the amount of $4,727.73 are sought. The per copy page rate appears to be 19 cents, since this figure is the smallest of many items listed and all items appear to be a multiple of 19 cents. This in-house rate is reasonable. The total number of copies would appear to be 22,772 (that is, $4,326.68 divided by $.19). Binding expenses of $15 are itemized, as is a payment to Copy America, Inc., for duplicating services on 12/12/95 in the amount of $386.05. These expenses are justified given the scope of discovery and trial, and will be allowed in the amount of $4,727.73, subject to later reduction to the extent these expenditures are for unsuccessful claims, as discussed above.
Postage ($119.03), Federal Express ($168.02), long distance phone charges ($87.97) and Fax services ($389.88) are all sufficiently documented and reasonable given the scope of the case and will be approved subject to reduction for partial success.
Messenger and courier service is an item of $1,132.50. The in-house messenger service items totaling $200.95 have not been justified and will be disallowed and may well be chargeable to firm overhead in any event. Courier service fees for Protocol Express Courier and Quick Courier in the amounts of $494.20 and $188.10 respectively, are sufficiently detailed and reasonable and will be allowed, as will the private process service item on 3/2/95 for $79.05. (The remaining $170.20 is unaccounted for in the billing entries.) These permitted items total $761.35 for messenger and courier service.
Plaintiff's counsel claims $4,016.72 for computer assisted legal research and the New Jersey Law Journal's opinion service, each on specified dates. (The remaining $134.199 is unaccounted for in the court's review of the billing statement). These entries are reasonable and necessary given the contours of the legal issues in the case. The amount of $3,881.73 will be approved for computerized legal research.
In summary, the following are approved expenditures includable in the attorney's fee:
Expert Witnesses $ 5,640.00
Investigation 2,937.50
Deposition transcripts 3,707.25
Medical reports 825.00
Photocopying and binding 4,727.73
Postage 119.03
Federal Express 168.02
Long distance telephone 87.97
Fax service 389.88
Messenger and courier 761.35
Computerized legal research 3,881.73
Total Expenditures $23,245.46
These expenditures are not "costs," which are a separate, statutorily defined category, see West Virginia University Hospital v. Casey, 499 U.S. 83, 111 (1991), but are rather expenses that are available as part of a reasonable attorney's fee as "those litigation expenses that are incurred in order for the attorney to be able to render his or her legal services." Abrams, 50 F.3d at 1225. Accordingly, these expenditures are subject to reduction if they are excessive, to the same extent as attorneys fees included in the lodestar. Without knowing each particle of costs, no one can say which was reasonably related to plaintiff's success in this case. The better course is to subject these total litigation expenditures to the same downward adjustment for partial success, namely, 25 percent, to reflect that 75 percent of the expenses were related to efforts undertaken to achieve plaintiff's partial success. Applying this reduction, the amount of expenses approved as part of the reasonable attorney's fee will be $17,434.10.
G. Costs
Plaintiff may recover her taxable costs in this case, and seeks $583 consisting of the filing fees ($170), the trial transcript ($132) and the witness fees ($280). Defendant, as noted, has objected to the fees for witnesses whose testimony was devoted primarily or exclusively to plaintiff's claims other than her retaliation claim. The court rejects defendant's argument. Costs are governed by 28 U.S.C. § 1920, which permits taxing as costs, among other items, the "fees and disbursements for printing and witnesses," 28 U.S.C. § 1920(3), which includes the statutory witness fee paid to subpoenaed witnesses. In this case, each of these witness fees was the statutory $40 fee, and since plaintiff procured the attendance of each listed witness, the fee is a recoverable cost, whether or not the witness's testimony contributed in any measure to plaintiff's success.
Thus, costs are allowed in the amount of $582.00.
III. SUMMARY
In conclusion, the court will award plaintiff a reasonable attorney's fee in the amount of $236,814.47, plus expenses of $17,434.10, for a total of $254,248.57, plus costs of $582.
In the Judgment entered on August 11, 1998, the Court entered judgment in favor of plaintiff and against the defendant, County of Cape May, "in the amount of $90,000.00 together with prejudgment interest in the amount of $12,602.46, for a total of $102,602.46, together with attorney's fees and costs in an amount to be determined pursuant to Rule 54(d), Fed.R.Civ.P." The amount of fees and related expenses has, more than 16 months later, been determined. Since the attorney's fees were determined as of the judgment date (August 11, 1998), the plaintiff is also entitled to recover interest upon that sum since that date, as post-judgment interest accounting for delay in payment. It was the court's intent, in entering the Judgment on August 11, 1998, that the plaintiff was found to be entitled to recover her attorney's fees, with only the amount to be determined. The accompanying Order will therefore amend the August 11, 1998 Judgment to insert this amount, together with post-judgment interest from August 11, 1998. This adjustment further recognizes that plaintiff and her counsel have been deprived of the benefit of the payment of this sum since it was due and that the fee award is calculated upon plaintiff's counsel's 1998 billing rates rather than current rates.
The accompanying Amended Judgment will be entered determining that plaintiff shall recover from defendant County of Cape May the sum of $102,602.46 plus attorney's fees including expenses in the amount of $254,248.57, together with applicable post-judgment interest upon these amounts from August 11, 1998, plus costs in the amount of $582.00.
AMENDED JUDGMENT
Upon application of plaintiff, Pamela D. Eaves, for reimbursement of attorney's fees and costs, and for the reasons stated in the Opinion of today's date pursuant to Rule 54(d), Fed.R.Civ.P.;
IT IS this ___ day of January, 2000, hereby
ORDERED and ADJUDGED that the JUDGMENT filed herein on August 10, 1998 and entered on August 11, 1998 be, and it hereby is, AMENDED to state:
IT IS ADJUDGED that plaintiff, Pamela D. Eaves, shall recover from the defendant, County of Cape May, the sum of $102,602.46 plus attorney's fees and expenses in the amount of $254,248.57, together with post-judgment interest upon these amounts from August 11, 1998, plus costs of suit, in the amount of $582.00.