Summary
finding entries such as "[r]eview of documents," which prevented the court from determining "whether the attorney who performed the work spent his or her time effectively" to be vague
Summary of this case from Indep. Project, Inc. v. Ventresca Bros. Constr. Co.Opinion
No. 02 Civ. 1702 (KNF).
May 3, 2006
MEMORANDUM and ORDER
On December 22, 2005, after a non-jury trial, the Court determined that plaintiff Remedy Rosso ("Rosso") had established violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA") and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). Accordingly, the Court found that the defendant, Pi Management Associates, L.L.C. ("Pi Management"), was liable to the plaintiff for: overtime pay in the amount of $23,276.96; liquidated damages in the amount of $23,276.96; back pay in the amount of $107,040; prejudgment interest on the back pay award, to be calculated by the Clerk of Court, at the rate referred to in 28 U.S.C. § 1961(a) for the relevant time period; and punitive damages in the amount of $20,000.
Thereafter, pursuant to the Court's December 22, 2005 order, the plaintiff moved for additional back pay in the amount of $12,332.04, attorney's fees in the amount of $142,731.60, and costs in the amount of $2,423.17. The defendant has opposed that portion of the plaintiff's motion that seeks an award of attorney's fees. The motion is addressed below. Additional Back Pay
Rosso contends that he is entitled to $12,332.04 in additional back pay for the period November 17, 2004 to December 22, 2005. Rosso maintains that this amount was calculated by subtracting the wages he earned during that time period, that is, $16,817.96, from the wages he would have earned if he had remained an employee of Pi Management, that is, $29,150.00 (at a rate of $550 per week). The defendant does not oppose this portion of the plaintiff's motion.
The Court has reviewed the plaintiff's written submissions, including supporting documentation in the form of weekly pay stubs for the period November 26, 2004, through December 23, 2005, and finds that the record supports his claim that he is entitled to additional back pay in the amount of $12,332.04. As noted above, the plaintiff was previously awarded $107,040 in back pay. Accordingly, the Court finds that the total amount of back pay for which the defendant is liable to the plaintiff is $119,372.04.
Attorney's Fees
In an action brought under FLSA, "[t]he court . . . shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b); see also Herman v. Davis Acoustical Corp., 196 F.3d 354, 357 (2d Cir. 1999) (finding that the FLSA "explicitly permits a district court to award attorney's fees in an action brought by an individual employee."). A prevailing plaintiff in an ADA action also may recover reasonable attorney's fees. See 42 U.S.C. § 12205.
In determining appropriate attorney's fees under FLSA and ADA, a court may apply the "lodestar" method, which involves multiplying "the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate." Pascuiti v. New York Yankees, 108 F. Supp. 2d 258, 266 (S.D.N.Y. 2000) (quoting Gierlinger v. Gleason, 160 F.3d 858, 876 [2d Cir. 1998]) (applying lodestar method in ADA case);see also Tlacoapa v. Carregal, 386 F. Supp. 2d 362, 369 (S.D.N.Y. 2005) (applying lodestar method in FLSA case). The lodestar figure is strongly presumed to represent a reasonable fee. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983).
When fixing a reasonable rate for attorney fees, it is appropriate for a court to consider and to apply the prevailing market rates in the relevant community for similar legal work of lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541, 1547 n. 11 (1984). Here, the relevant community is the Southern District of New York. In addition, it is permissible for a court to rely upon its own knowledge of private firm hourly rates in deciding what reasonable attorney fees are in the community. Miele v. N.Y. State Teamsters Conf. Pens. Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987).
"In determining the number of hours reasonably expended for purposes for calculating the lodestar, the district court should exclude excessive, redundant, or otherwise unnecessary hours."Sea Spray Holdings, Ltd v. Pali Financial Group, Inc., 277 F. Supp. 2d 323, 325 (S.D.N.Y. 2003) (quoting Quaratino v. Tiffany Co., 166 F.3d 422, 425 [2d Cir. 1999]). In addition, a failure to delegate work to junior, less expensive attorneys may be grounds for reducing an award of attorney's fees. See, e.g., Klein v. Salvi, No. 02 Civ. 1862, 2004 WL 596109, at *9 (S.D.N.Y Mar. 30, 2004).
In the Second Circuit, a party seeking an award of attorney fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154.
Where documentation of the number of hours expended is vague or incomplete, a court may reduce the award. See In re Painewebber Ltd. Partnerships Litig., No. 94 Civ. 8547, 2003 WL 21787410, at *4 (S.D.N.Y. Aug. 4, 2003). Further, "[b]ecause it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application, courts apply across-the-board percentage cuts as a practical means of trimming fat from a fee application." Id. (quoting New York State Ass'n for Retarded Children, 711 F.2d at 1146) (internal quotation marks omitted).
The plaintiff was represented in this case by the law firm Kaye Scholer LLP ("Kaye Scholer") on a pro bono basis. In support of his fee application, the plaintiff has provided to the Court, inter alia, the declaration of Matthew J. Wojtkowiak ("Wojtkowiak"), an attorney who was formerly an associate of Kaye Scholer, and the law firm's time and disbursement report for the instant litigation. Plaintiff avers that he is entitled to $142,731.60 in attorney's fees.
The plaintiff commenced this action pro se in March 2002; he obtained pro bono counsel in July 2004.
Wojtkowiak is currently an associate of Fensterstock Partners, LLP.
The defendant opposes this portion of the plaintiff's motion. It maintains that the plaintiff is not entitled to an award of attorney's fees because: (1) he has not offered proof that the hourly rates charged by Kaye Scholer in connection with this litigation are reasonable; (2) he has not submitted contemporaneous time records in support of his request for attorney's fees, and the documentation he has provided is vague and insufficiently specific; and (3) he has not shown that counsel expended a reasonable number of hours on this litigation.
1. Reasonable Hourly Rate
The plaintiff's submissions indicate that he incurred fees through legal work performed by five attorneys: Wojtkowiak at $435 per hour; Moshe Horn ("Horn") at $435 per hour; Janet S. Jenness ("Jenness") at $310 per hour; Brett Dockwell ("Dockwell") at $215 per hour; and Kathryn Parente ("Parente") at $215 per hour.
According to Dockwell, who submitted a declaration in reply to the defendant's objections to the plaintiff's motion, the hourly rates claimed by Kaye Scholer in connection with this action are the same as those the firm charged its paying clients at the time the work was performed. Thus, in 2004, Kaye Scholer billed an hourly rate of $215 for its first-year associates; $310 for its third-year associates; and $435 for its eighth-year associates. When work on this case was performed, Dockwell and Parente were first-year associates, Jenness was a third-year associate, and Horn and Wojtkowiak were eighth-year associates.
Plaintiff's submissions also indicate that he incurred fees through services provided by the following law firm personnel: Elizabeth Golub, a senior legal assistant, at $175 per hour; Andrew Moore, a legal assistant, at $135 per hour; Dayron Fory, a legal assistant, at $80 per hour; Michelle Matula, a scientific advisor (legal nurse analyst) at $195 per hour; and Matthew Woods, a legal clerk, at $130 per hour. According to Dockwell, the hourly rates charged for work performed by these individuals are in line with the law firm's regular fees at the time in question.
According to Dockwell, in 2004, legal assistant services were billed at an hourly rate of from $80 to $175 depending on the legal assistant's experience and ability to handle complex tasks.
The Court has reviewed the plaintiff's submissions and has determined that the hourly rates sought for work done by the law firms' associates are excessive when compared with the rates that have been approved as reasonable for work done by other associates in this judicial district during the relevant period.See Dula v. Amereon, Ltd., No. 00 Civ. 8156, 2004 WL 1586410, at *4 (S.D.N.Y. July 15, 2004) (in 2004, finding up to $425/hour reasonable rate for work by partner at a large law firm, but awarding only $275/hour for work by associate); Wells Fargo Bank v. Brooksamerica Mortgage Corp., No. 02 Civ. 4467, 2004 WL 2754855, at *2 (S.D.N.Y. Dec. 1, 2004) (in 2004, awarding $220/hour for work by large firm associate with 12 years' experience); Tlacoapa, 386 F. Supp. 2d at 370, (finding $125/hour appropriate compensation for junior associate with three years' experience). The Court also finds the hourly rates billed for work performed by the firm's legal assistants/paralegals and expert advisors to be unreasonably high. See, e.g., Tlacoapa, 386 F. Supp. 2d at 370 (finding $125/hour for paralegal/assistant time excessive); Access 4 All, Inc. v. Park Lane Hotel, Inc., No. 04 Civ. 7174, 2005 WL 3338555, at *5 (Dec. 7, 2005) (awarding $175/hour for expert witness).
In reaching the conclusion that the hourly rates sought to be recovered in this case are unreasonably high, the Court notes that Kaye Scholer agreed to represent Rosso on a pro bono basis. Hence, it is not appropriate for the law firm to apply the same hourly rates to the defendant in this case that it would apply in a matter involving a large corporate client. See Morris v. Eversley, 343 F. Supp. 2d 234, 247 (S.D.N.Y. 2004).
2. Reasonable Number of Hours
According to Dockwell, Kaye Scholer's time and disbursement report for the instant litigation was "exported directly from Kaye Scholer's time-recording system, into which legal staff contemporaneously enter their time as client-related tasks are performed." Therefore, the Court finds that, contrary to the defendant's objection in this regard, the plaintiff has met his burden of providing contemporaneous time records in support of his fee application.
The defendant is correct, however, in noting that the time records provided contain vague or perfunctory explanations of the work performed. For example, there are several entries that describe the task performed as "Review of documents," or, similarly, "Analysis/review of documents on pro bono matter." These entries are not sufficiently specific to allow the Court to determine whether the attorney who performed the work spent his or her time effectively.
Moreover, in some instances the number of hours devoted to the task of document review appears to be excessive in light of other entries in the records. For example, the time records show that Wojtkowiak spent more than 50 hours over a period of seven days engaged in document review, although he had spent nearly 20 hours previously in review of the case file. In like manner, Horn spent more than 10 hours over a period of four days reviewing documents, yet he does not seem to have had any further involvement in the litigation. Other entries also appear unreasonable. Thus, while the records indicate that, on November 19, 2004, Wojtkowiak spent 10.5 hours at trial, the Court notes that the proceedings on that date were concluded in approximately thirty minutes. In addition, it appears that some of the work done by a senior attorney at the law firm could have been performed by a junior attorney, and that work performed by a junior attorney might have been assigned more appropriately to a paralegal.
The plaintiff contends that, while Kaye Scholer's "actual time and disbursements in this case exceeded $250,000," the amount sought through the instant motion has been reduced by more than $100,000, "in recognition that this case was taken on by Kaye Scholer pro bono, and to avoid even the appearance of unreasonableness in plaintiff's fees." The Court approves the law firm's determination to reduce, voluntarily, the amount of costs and attorney fees it has requested. Nevertheless, the Court finds that, in view of the deficiencies outlined above, an additional fifteen percent (15%) across-the-board reduction in the amount of attorney's fees is appropriate in this case. See, e.g., In re Painewebber Ltd. Partnerships Litig., 2003 WL 21787410, at *4-5. Accordingly, the plaintiff is entitled to $121,321.86 in attorney's fees. Costs
The plaintiff also seeks $2,423.17 in expenses. Specifically, the plaintiff's request includes: $1,099.00 for costs associated with an oral examination of a witness over a period of two days; $1,081.07 for trial transcript fees; and $243.10 for duplicating costs. In support of his application, the plaintiff has provided documentation in the form of an invoice for each item. The Court finds that the plaintiff's request in this regard is reasonable.
Conclusion
Based on the foregoing, and pursuant to the Court's December 22, 2005 order, as outlined above, the defendant is liable to the plaintiff for: overtime pay in the amount of $23,276.96; liquidated damages in the amount of $23,276.96; back pay in the amount of $119,372.04; prejudgment interest on the back pay award, to be calculated by the Clerk of Court, at the rate referred to in 28 U.S.C. § 1961 (a) for the relevant time period; punitive damages in the amount of $20,000; attorney's fees in the amount of $121,321.86; and costs in the amount of $2,423.17.
SO ORDERED: