Summary
finding "hotel and meal" costs to be recoverable
Summary of this case from Hallmark v. Cohen & Slamowitz, LLPOpinion
97 Civ. 0607 (PKL)
August 6, 2001
SAADY SAXE, P.A., Daniel L. Saxe, Esq., Lutz, FL, Attorneys for Plaintiffs.
Christopher E. Chang, Esq., New York, NY, Attorney for Defendant Triborough Bridge and Tunnel Authority
OPINION AND ORDER
BACKGROUND
Plaintiffs Gwenda Lewis and Kathleen M, Corke brought this employment discrimination action against the Triborough Bridge and Tunnel Authority (hereinafter "TBTA"), Peter Senesi, and Michael Chin. In their Complaint, plaintiffs advanced fourteen causes of action against the TBTA, six causes of action against Peter Senesi, and three causes of action against Michael Chin. Specifically, plaintiffs alleged sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter "Title VII"), and the New York State Human Rights Law, N.Y. Executive Law § 296 (hereinafter "NYHRL") against all three defendants; aiding and abetting discrimination in violation of the NYHRL against all three defendants; and negligent supervision in violation of state law against the TBTA. In addition, Lewis alleged race discrimination in violation of Title VII and the NYHRL against the TBTA and Chin. Plaintiffs sought unspecified compensatory and punitive damages as a result of their alleged discrimination and retaliation.
During the relevant time period at issue in this case, Lewis and Corke were employed by the TBTA as Bridge and Tunnel Officers at the Manhattan Toll Plaza of the Triborough Bridge; Senesi was the General Manager of the Triborough Bridge; and Chin was a Sergeant at the Manhattan Plaza of the Triborough Bridge, and a direct supervisor of both Corke and Lewis. Plaintiffs alleged that, beginning in October of 1994, they were sexually harassed by employees of Allside Services Corporation, an independent contractor hired by the TBTA to provide cleaning services at the Triborough Bridge facilities. Specifically, plaintiffs alleged that Allside employees walked into the women's locker room while plaintiffs — as well as other female employees of the TBTA — were changing, made lewd comments to plaintiffs, leered at plaintiffs in the hallways, and forced plaintiffs to brush up against them when exiting the women's locker room. According to plaintiffs, they repeatedly complained to their supervisors, but the harassment by Allside employees continued unabated. In addition, Lewis claimed that Chin made comments that were racially and sexually discriminatory.
On December 10, 1998, Magistrate Judge James C. Francis IV, to whom the parties' motion for summary judgment had been referred, issued a Report and Recommendation in which he recommended this Court grant defendant's summary judgment motion to the extent of(1) dismissing all claims against defendant Senesi in his individual capacity, and (2) dismissing plaintiffs' claim for negligent supervision. On November 17, 1999, this Court adopted Magistrate Judge Francis' recommendation regarding plaintiffs' claim of negligent supervision and plaintiffs' claims of sex discrimination and retaliation against Senesi individually. See Gwenda Lewis and Kathleen Corke v. Triborough Bridge and Tunnel Authority, 77 F. Supp.2d 376, 384 (S.D.N.Y. 1999). Therefore, the Court dismissed four of the six claims against Senesi. However, while noting the conflicting state law and disagreement among courts in this district over the viability of individual liability pursuant to the NYHRL's aiding and abetting provision, this Court found that material issues of fact existed on plaintiffs' claim of aiding and abetting against Senesi. See id.
On January 8, 2001, the day trial of this action commenced, the Court held that punitive damages could not be awarded against the TBTA pursuant to Title VII, and therefore were not available to plaintiffs in this action. In addition, defendant Chin — who chose not to move for summary judgment — made an oral motion to dismiss the individual discrimination and retaliation claims against him pursuant to the NYHRL. The Court granted Chin's request in accordance with the Court's dismissal of the identical claims against Senesi, as fully discussed in the Court's November 17, 1999 Opinion and Order. See id. Therefore, at the commencement of trial, Corke and Lewis each maintained one claim of aiding and abetting sexual discrimination against Senesi, and Lewis maintained one claim of aiding and abetting race discrimination against Chin.
After a two-week jury trial, the jury found the TBTA liable to Lewis for gender discrimination, racial discrimination, retaliation, and aiding and abetting the discrimination against her, and awarded her $250,000 in compensatory damages. The jury also found the TBTA liable to Corke for gender discrimination and aiding and abetting the discrimination against her, and likewise awarded her $250,000 in compensatory damages. However, the jury found that the TBTA did not retaliate against Corke, and therefore Corke was not entitled to a backpay award. Finally, the jury found that Senesi and Chin were not liable to plaintiffs for aiding and abetting the discrimination against them.
In the instant motion, plaintiffs seek attorney's fees, costs, and expenses from the TBTA pursuant to 42 U.S.C. § 2000e-5(k). Specifically, plaintiffs request attorney's fees in the amount of $301,839.25, and cost and expense reimbursement in the amount of $17,325.33. Plaintiffs also request a fifty percent upward adjustment of their attorney's fee. For the following reasons, the Court awards plaintiffs $271,655.33 in attorney's fees and $17,325.33 in costs.
DISCUSSION
I. Attorney's Fees
Plaintiffs contend they are entitled to attorney's fees and costs pursuant to 42 U.S.C. § 2000e-5 (k). Title VII provides that "the Court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k); see also Bonner v. Guccione, 178 F.3d 581, 593 (2d Cir. 1999). Therefore, the Court must determine (1) whether plaintiffs are prevailing parties according to Title VII, and (2) whether plaintiffs' requested attorney's fees are reasonable. See Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996).
A. Prevailing Party
Defendant does not dispute that plaintiffs qualify as prevailing parties under 42 U.S.C. § 2000e-5(k). See Defendant's Memorandum of Law In Opposition to Plaintiffs' Motion for Attorney's Fees and Costs (hereinafter "Def.'s Mem.") at 2. "A plaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). To be considered prevailing, the plaintiff may have succeeded on issues besides those central to the claim. See LeBlanc-Sternberg v. Fletcher 143 F.3d 748, 757 (2nd Cir. 1998) (citingTexas State Teachers Assoc. v. Garland Indep. Sch. Dist. 489 U.S. 782, 790-91 (1989)). To be considered a prevailing party, and thus eligible for an award of fees, "[it] is sufficient that the plaintiff succeeded on "any significant issue in the litigation.'" Id. at 757.
Here, a jury awarded $250,000 each to Lewis and Corke. The jury found the TBTA liable for gender discrimination and aiding and abetting with regard to both plaintiffs, as well as race discrimination and retaliation with regard to Lewis. This jury finding clearly "materially alters the legal relationship between the parties. . . in a way that directly benefits the plaintiff." Farrar, 111-12. Accordingly, plaintiffs are "prevailing parties," and therefore eligible for an award of attorney's fees.
B. Reasonable Fee
Once a party is deemed "prevailing," the district court must then determine what constitutes a "reasonable" fee. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The district court is afforded broad discretion in assessing a reasonable fee award based on the circumstances of the case. See Hensley, 461 U.S. at 437; LeBlanc-Sternberg, 143 F.3d at 758;Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). The first step in determining a reasonable fee award involves the determination of the "lodestar" figure, which is arrived at by multiplying the number of hours reasonably expended by plaintiffs' counsel on the litigation by a reasonable hourly rate. See Hensley, 461 U.S. at 437. There is "a strong presumption that the lodestar figure . . . represents a "reasonable' fee."Leblanc-Sternberg, 143 F.3d at 764 (quoting Pennsylvania v. Delaware Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986)). The party asking for a departure from the lodestar bears the burden of establishing that an adjustment is necessary to the calculation of a reasonable fee.See Grant v. Martimez, 973 F.2d 96, 101 (2nd Cir. 1992), cert. denied. sub. nom. Bethlehem Steel Corp. v. Grant. 506 U.S. 1053 (1993). "In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours." Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1998). In addition, the district court may adjust the lodestar figure based on a variety of factors, "including the important factor of the "results obtained.'" Hensley, 461 U.S. at 434 (noting the factors laid out in Johnson v. Georgia Highway Express. Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), are usually subsumed within the initial calculation of hours reasonably expended).
Here, plaintiffs request 1,040 hours at a rate of $275 per hour for their lead counsel, Daniel L. Saxe; 43.45 hours at a rate of $275 per hour for Claire Saady, Saxe's partner; 32.25 hours at a rate of $100 per hour for Julie Scheidter, an associate at Saady Saxe; and 11.30 hours at a rate of $60 per hour for a paralegal. Therefore, plaintiffs request a lodestar figure of $301,839.25. In addition, plaintiffs request a fifty percent upward adjustment of the lodestar figure on account of the risk of non-payment involved with Saxe's representation. Defendant, on the other hand, contends that the lodestar amount should be reduced to account for (1) plaintiffs' limited success at trial and (2) excessive and unreasonable hours plaintiffs' counsel spent on the litigation.
1. Reduction for Unsuccessful Claims
The TBTA argues that the jury's rejection of plaintiffs' claims against Senesi and Chin individually should preclude plaintiffs from recovering 181.55 hours of attorney's fees. See Def.'s Mem. at 5. According to the TBTA, plaintiffs should not recover the 163.05 hours their attorneys devoted to responding to defendant's summary judgment motion or the 19.25 hours devoted to responding to defendant's motion for a new trial because "[h]ad Senesi not been named as a party defendant in this action, those two motions would not have been made." Id. at 4.
When a plaintiff does not prevail on all of her claims, the Court must engage in a two-step inquiry to determine whether a reduction of the lodestar is necessary. First, the Court must determine whether a plaintiff failed to prevail on claims that were unrelated to her successful claims. See Hensley, 461 U.S. at 434. If so, the hours spent on the unrelated, unsuccessful claims should be subtracted from the lodestar, as those hours "cannot be deemed to have been "expended in pursuit of the ultimate results achieved.'" Id. at 435. Second, the Court must consider whether there are any unsuccessful claims interrelated with the successful claims. See id. If there are such unsuccessful claims, "the court must determine whether the plaintiffs level of success warrants a reduction in the fee award." Martimez, 973 F.2d at 101; see also Hensley, 461 U.S. at 436 (noting that the "most critical factor" in determining a reasonable fee award "is the degree of success obtained"). If a plaintiff has obtained "excellent results," her attorney should recover a "fully compensatory fee," which normally consists of all hours "reasonably expended" on the litigation. Hensley, 461 U.S. at 435. On the other hand, if "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonably hourly rate may be an excessive amount." Id.; see also United States Football League v. National Football League, 887 F.2d 408, 414 (2d Cir. 1989) (noting that when a plaintiff only achieves partial or limited success, "full compensation for attorney's fees would not be reasonable"), cert. denied, 493 U.S. 1071 (1990). Therefore, when a plaintiff has achieved only partial or limited success, the district court is obligated to award "only that amount of fees that is reasonable in relation to the results obtained." Id. at 440.
When measuring a plaintiffs level of success — and thus whether a reduction in the lodestar amount is necessary — the Court does not evaluate the results obtained by a plaintiff in a vacuum. Rather, the Court "is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought" by the plaintiff.Farrar, 506 U.S. at 575 (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring)). Therefore, "[a] reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." Hensley, 461 U.S. at 439.
In the instant case, Corke succeeded on her sex discrimination claim and aiding and abetting claim against the TBTA, but did not prevail on her retaliation claim against the TBTA or her aiding and abetting claim against Senesi. Moreover, the Court had dismissed Corke's and Lewis' claims for punitive damages, negligent supervision, and sex discrimination and retaliation against Senesi and Chin individually, before trial. At trial, Lewis prevailed on her claims for sex and race discrimination, retaliation, and aiding and abetting against the TBTA. However, the jury rejected Lewis' claims against Senesi and Chin for aiding and abetting the TBTA's discrimination.
Here, each of plaintiffs' claims were factually and legally interrelated. Plaintiffs' claims were based on a common core of facts, which centered around the TBTA's response to plaintiffs' allegations of harassment by Allside employees. In addition, the legal issues at trial were intertwined. The standards for Corke's unsuccessful retaliation claim under Title VII and the NYHRL were identical to Lewis' successful claim for retaliation, and both plaintiffs' claims for aiding and abetting against Chin and Senesi individually shared the same standard as plaintiffs' claims of aiding and abetting against the TBTA. Therefore, since the Court has found plaintiffs' unsuccessful and successful claims interrelated, the Court must next address the extent of plaintiffs' success in light of their demand for relief.
Plaintiffs' success was clearly limited when compared to the relief they sought. First, in addition to failing on their aiding and abetting claims against Senesi and Chin individually, plaintiffs were awarded less than half of the compensatory damages that they requested at trial. Although plaintiffs' Complaint sought unspecified compensatory damages, Saxe specified the compensatory damages his clients sought during his closing argument to the jury. At that time, Saxe asked the jury to award $600,000 to Lewis and $600,000 to Corke in compensatory damages. In addition, Saxe implored the jury to award Corke additional backpay damages as a result of her being denied a promotion to full Sergeant. The jury award of $250,000 to each plaintiff, and the complete rejection of Corke's claim for backpay damages, clearly falls far short of what plaintiffs sought. Moreover, up until the day trial commenced, plaintiffs sought substantial punitive damages from the TBTA. The Court's ruling on the unavailability of punitive damages as a matter of law further demonstrates the plaintiffs' limited or partial success.
At the time of trial, Corke had been promoted to Acting Sergeant, which paid the equivalent of a full Sergeant position, but did not provide commensurate job security.
Furthermore, Corke's failure on her retaliation claim prohibited her from seeking further equitable relief from the Court. Had Corke been successful on her retaliation claim, she likely would have sought — given her testimony expressing her desire to serve as a full Sergeant — injunctive relief promoting her to full Sergeant or, in the alternative, an award of front pay from the Court. The jury's rejection of Corke's retaliation claim precluded any such equitable relief. Finally, four of plaintiffs' discrimination claims against Senesi, two discrimination claims
against Chin, and a negligent supervision claim against the TBTA were dismissed prior to trial because they were insufficient as a matter of law to merit relief. Therefore, plaintiffs' award of damages, while not insignificant, is clearly limited when compared to the relief they originally sought.
Next, the Court must determine if plaintiffs' limited success warrants a departure from the lodestar figure. Under Hensley, a reduction is appropriate when the lodestar amount is excessive given the plaintiffs' limited success at trial. See Hensley, 461 U.S. at 436 (noting that the lodestar amount may be excessive even where the plaintiff's [unsuccessful] claims were interrelated, nonfrivolous, and raised in good faith"). The key question is whether plaintiffs should be awarded attorney's fees for the hours spent pursuing their unsuccessful claims in light of their limited success. The Court finds that, given the circumstances of this case, the lodestar figure is indeed excessive. See Goos v. Nat'l Assoc. of Realtors, 68 F.3d 1380, 1387 (D.C. Cir. 1995) ("[W]here the pursuit of multiple claims inflates the total hours beyond what is reasonable for the litigation, a reduction is clearly appropriate."). It is undisputed that plaintiffs' attorneys spent time, both at trial and during discover, fleshing out areas that were only necessary to prove their unsuccessful claims. With regard to Corke's unsuccessful claim for retaliation, Saxe spent a significant amount of time developing this issue at trial. The vast majority of the evidence offered in support of this claim was irrelevant to any other issue at trial and was unique to Corke's retaliation claim. For example, the events surrounding the TBTA's failure to promote Corke to Sergeant, Corke's alleged qualifications for Sergeant, and Corke's subsequent pain and suffering resulting from the failure to be promoted, were only relevant to Corke's unsuccessful retaliation claim.
More significantly, however, plaintiffs' attorneys spent significant amounts of time developing their unsuccessful claims of aiding and abetting against Senesi and Chin individually. Although plaintiffs would undoubtedly have deposed Senesi and called him as a witness at trial, his testimony would have been limited to his actions in responding to plaintiffs' complaints about the Allside employees' harassment, rather than the lengthy, in-depth recitation of Senesi's precise words and interactions with plaintiffs that Saxe focused on during his examination of plaintiffs, Senesi, and other witnesses during the trial. Moreover, the issue of Senesi and Chin's individual liability under the NYHRL was hotly contested in the parties' summary judgment briefs before Magistrate Judge Francis, and again when plaintiffs objected to Magistrate Judge Francis' recommendation that this claim be dismissed against Senesi in his individual capacity. Indeed, this Court's unwillingness to adopt Magistrate Judge Francis' recommendation on the issue of individual liability for aiding and abetting under the NYHRL demonstrates the complexity of this issue. In short, it is clear that plaintiffs' attorneys spent considerable time researching and briefing the applicability of this issue in light of conflicting, unsettled state law.
As discussed in greater detail in the Court's November 17, 1999, Opinion and Order, New York state courts are in disagreement on whether liability for aiding and abetting can be imposed on individual defendants. See Lewis and Corke v. Triborough Bridge and Tunnel Authority, 77 F. Supp.2d 376, 380 n. 6 (S.D.N.Y. 1999) (citing conflicting cases within the Appellate Departments).
Furthermore, plaintiffs spent 19.25 hours responding to the TBTA's motion for separate trials, which of course would have been unnecessary had the claims against Senesi and Chin individually not been brought. Finally, it is important to point out that plaintiffs' claims for aiding and abetting liability against Senesi and Chin were not raised as alternative grounds for
relief. Cf. Hensley, 461 U.S. at 435 ("Litigants in good faith may raise alternative grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee."). Rather, these claims were additional claims for relief that could only be considered after the jury concluded that the TBTA violated the NYHRL by discriminating against plaintiffs. See New York Executive Law § 296(6). In fact, plaintiffs concede that the aiding and abetting claims against Senesi and Chin were derivative in nature,see PI.'s Reply Mem. at 4., rather than alternative claims that would be not be the basis for a reduction. See Goos, 68 F.3d at 1387 n. 12 (noting that "[w]here a related claim would potentially have yielded the plaintiff additional relief, the failure on that claim will of course be relevant" in determining whether a reduction of the lodestar is appropriate) (emphasis in original).
Therefore, given the circumstances of this case, it is not appropriate to award attorney's fees for time spent on plaintiffs' unsuccessful claims. Thus, a modest reduction in the lodestar amount is necessary. There is no precise rule or formula for making the reduction of the lodestar figure. See Hensley, 461 U.S. at 436. Rather, "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success."Id. at 436-37. Here, because it would be imprecise to attempt to determine from plaintiffs' attorneys' records which hours were spent on their unsuccessful claims, the Court will simply reduce the lodestar amount by ten percent to reflect plaintiffs' limited success. See, e.g., United States Football League, 887 F.2d at 414 (affirming district court's decision to reduce fee request by twenty percent to reflect plaintiffs limited success at trial); Skold v. American Int'l Group. Inc., No. 96 Civ. 7137, 1999 WL 405539, at *10 (S.D.N.Y 1999) (Baer, J.) (reducing fee request by thirty percent to reflect plaintiff's limited success at trial); Kim v. Dial Serv. Int'l. Inc., No. 96 Civ. 3327, 1997 WL 458783, at *18 (S.D.N.Y. 1997) (Cote, J.) (reducing fee request by thirty percent to reflect plaintiff's limited success at trial); Dailey v. Societe Generale, 915 F. Supp. 1315, 1332 (S.D.N.Y. 1996) (Koeltl, J.) (reducing lodestar amount by ten percent to reflect plaintiffs limited success at trial).
2. Excessive Hours
Defendant next argues that the hours billed by Saxe were "unreasonable and excessive," and should be reduced from 1,040 hours to 661.5 hours. Def.'s Mem. at 5-7. Defendant asserts, without stating specific hours expended, that many of Saxe's 1,040 claimed hours were unreasonable. See id. at 6-7. Defendant presents no evidence to support this assertion, aside from the observation that plaintiffs billed 453.50 more hours than did defense counsel for the TBTA and Mr. Senesi. See id. at 6-7. Defendant proposes that "an appropriate award for Mr. Saxe's time would be 661.50 hours" which "is equal to the amount of hours billed by Mr. Chang (586.50 hours), plus an additional 75 hours." Id. at 7.
The Court finds defendant's argument unpersuasive. First, the observation that plaintiffs' attorneys billed more hours on this case than defendant's attorney is in-and-of itself insufficient to deem plaintiffs' attorneys' hours excessive. Second, although defendant concedes that "as a general rule representing a plaintiff will entail more work than representing a defendant," id. at 7, its fails to recognize such a discrepancy in this case, and instead arbitrarily submits that plaintiffs should only be compensated for 75 more hours than defendant's attorney billed. Defendant's argument ignores that Saxe had to prepare for and conduct ten depositions in this case, as well as prepare plaintiffs and Corke's treating physician, Dr. David Perry, for trial. Moreover, plaintiffs were also forced to draft responses to defendant's motion for summary judgment, motion for separate trials, and motions in limine.
Furthermore, defendant's inability to pinpoint any "excessive" hours billed by plaintiffs' counsel is instructive. Like defendant, after thoroughly reviewing plaintiffs' attorneys' detailed time records, the Court does not find any of plaintiffs' attorneys' hours to be excessive, duplicative, or unnecessary. Therefore, the Court will not reduce plaintiffs' requested hours beyond the ten percent reduction for plaintiffs' limited success.
3. Reasonable Hourly Rate
The reasonable hourly rate used to determine the lodestar should be based on "prevailing market rates." Blum v. Stenson, 462 U.S. 886, 895 (1984). "The lodestar figure should be in line with those rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2nd Cir. 1997). The relevant community for a fee determination is the judicial district in which the trial court sits, irrespective of whether the attorney was based locally or outside of the community. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987).
Plaintiffs request a rate of $275 per hour for Daniel L. Saxe; $275 per hour for Claire Saady, Saxe's partner; $100 per hour for Julie Scheidter, a first-year associate at Saady Saxe; and $60 per hour for a Saady Saxe paralegal. Defendant does not contest the hourly rates of Saady or the associate and paralegal working on the case. Ms. Saady has eighteen years experience in employment law litigation and was a partner at the New York firm of Haight, Gardner, Poor Havens before joining Mr. Saxe in his firm. See Affidavit of Daniel L. Saxe, Esq., sworn to on Feb. 8, 2001 (hereinafter "Saxe Aff."), at 5. In light of her experience, Saady's requested hourly rate is reasonable. The Court also finds the rate of Scheidter and Saady Saxe's paralegal reasonable and in line with rates previously found reasonable by courts in this district. See Dailey, 915 F. Supp. at 1327 (finding hourly rates of $175 per hour for an associate and $65 per hour for a paralegal reasonable).
Defendant contends, however, that Saxe's hourly rate should be reduced from $275 per hour to $240 per hour because "his background and experience in Title VII employment matters [were] limited when he initially undertook plaintiffs' representation." Id. at 8. Defendant relies on Marisol A. v. Guiliani, 111 F. Supp.2d 381, 386 (S.D.N.Y. 2000), in which District Judge Constance Baker Motley laid out a "reasonable rate scale" for attorneys in Civil Rights cases that "may be generally applied to attorneys practicing employment law." Def.'s Mem. at 8. According to the Marisol scale, however, an attorney of Saxe's experience may reasonably charge $350 per hour for services performed.Marisol A., 111 F. Supp.2d at 386. Defendant asserts that although Saxe is an experienced litigator, his lack of Title VII experience warrants a downward adjustment in his hourly rate. See Def.'s Mem. at 8.
Mr. Saxe graduated from Western New England Law School in 1979 and is currently licensed to practice in three states. See Saxe Aff. at 1. Beginning with his work at the New York Attorney General's office in 1981, where he handled primarily civil rights and employment cases in federal court, see id. at 2, Saxe has more than twenty-one years of litigation experience. In light of Saxe's considerable litigation experience in employment discrimination, the Court finds defendant's argument unpersuasive and declines to reduce Saxe's requested hourly wage. Saxe is requesting a rate far less than the $350 per hour Marisol allows for an attorney of his experience. Defendant again presents no evidence to show that its suggested hourly wage, $240 per hour, is any more reasonable than the $275 Saxe requests. Furthermore, this Court was impressed with the quality of lawyering by Saxe on behalf of his clients, and takes this into account in making its determination. The Court finds that $275 per hour is a reasonable rate for Saxe.
4. Upward Adjustment of the Lodestar
Plaintiffs seek a fifty percent upward adjustment of the lodestar amount based on the fact that "Mr. Saxe took a substantial risk in taking on this large case in 1996 . . . [and] there was a significant and very real risk of non-payment of any of the fees and costs incurred by Mr. Saxe during the representation." Plaintiffs' Memorandum of Law in Support of Motion for Attorney's Fees and Costs at 6. Plaintiffs point to a number of district court decisions that "support an enhanced award where counsel assumes a risk of not being paid." Id. at 6 (citations omitted).
The Supreme Court has squarely addressed this issue, holding that "enhancement for contingency is not permitted under the fee-shifting statutes at issue." City of Burlington v. Dague, 505 U.S. 557, 567 (1992). The Court explained that "an attorney operating on a contingency-fee basis pools the risks presented by his various cases" and therefore "to award a contingency fee enhancement under a fee-shifting statute would in effect pay for the attorney's time where he does not prevail." Id. at 565. The Court also noted that "an enhancement for contingency would likely duplicate in substantial part factors already subsumed in the lodestar." Id. at 562. While Dague dealt with the Solid Waste Disposal Act, a different fee-shifting state, the standards set forth in these types of cases apply to all such fee-shifting statutes.See id. at 562 (noting that the Court had previously held that "the typical federal fee-shifting statute" does not allow for an enhancement of the award on account of contingency); see also Hensley, 461 U.S. at 433 n. 7 ("The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a "prevailing party.'"); Leblanc-Sternberg, 143 F.3d at 757. As for the district court cases plaintiffs rely on to support their request for an upward adjustment, all were decided prior to Dague. Since Dague district courts have refused to grant upward adjustments of the lodestar because a case was taken on a contingent-fee basis. See, e.g., Losciale v. The Port Auth. of N.Y. and N.J., No. 97 Civ. 704, 1999 WL 587928, at *8 (S.D.N.Y. 1999) (Koeltl, J.) (refusing to grant an upward adjustment on account of contingency, holding that the calculated lodestar "adequately reflects all of the relevant considerations").
Therefore, in light of the standards set forth in Dague, this Court will not grant plaintiffs' request for a fifty percent upward adjustment of the lodestar. Accordingly, plaintiffs are awarded attorney's fees of $271,655.33, a sum equal to ninety percent of the lodestar figure.
II. Request for Costs
Plaintiffs also seek reimbursement for costs and out-of-pocket expenses totaling $17,325.33. A prevailing party may recover costs under Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920, as well as out-of-pocket expenses associated with litigation if they are "reasonable . . . expenses incurred by the attorney and . . . are normally charged to their clients."LeBlanc Sternberg, 143 F.3d at 763 (citing U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2nd Cir. 1989)); see also Reichman v. Bonsignare. Brignanti Mazzotta P.C., 818 F.2d 278, 283 (2nd Cir. 1987). Recoverable expenses include "telephone, postage, travel and photocopying costs." Aston v. Sec'v of Health and Human Servs., 808 F.2d 9, 12 (2d Cir. 1986). However, costs that are so general that they cannot be attached to the advancement of any specific claim should not be allowed.See Marshall v. State of N.Y. Div. of State Police, 31 F. Supp.2d 100, 110 (N.D.N.Y. 1998) (citing Abou-Khadra v. Bseirani, 971 F. Supp. 710, 720 (N.D.N.Y. 1997)).
Plaintiffs seek reimbursement for out-of-pocket expenses totaling $17,325.33. Defendant does not object to this sum, but did request documentation supporting two of plaintiffs' expenses — $4,954.28 for court reporter fees and $3,609.76 for hotel and meal costs. See Def Mem. at 13. Plaintiffs' hotel and meal costs are verified in their initial Notice of Motion for Attorney's Fees, and plaintiffs subsequently provided verification for the court reporter costs in response to defendant's request. See Reply Affidavit in Further Support of Plaintiffs' Fee Application at Ex. A.
The Court has thoroughly reviewed all of plaintiffs' claimed expenses, the majority of which are travel and deposition expenses, and finds them quite reasonable. Therefore, plaintiffs' request for $17,325.33 in costs and expenses incurred during the litigation is granted in full.
CONCLUSION
For the foregoing reasons, the Court awards plaintiffs $271,655.33 in attorney's fees and $17,325.33 in costs.