Opinion
CIV. NO. 3:94CV1769 (HBF)
March 31, 2000
RULING ON APPLICATION FOR ATTORNEY'S FEES AND COSTS
On October 19, 1994, plaintiff filed a five-count complaint against her former employer, Carten Controls, Inc., and its vice-president, Hidetsugu Kataoka, alleging, among other things, sex and pregnancy discrimination in violation of Title VII and the Connecticut Fair Employment Practices Act. In December 1997, Judge Nevas granted defendants summary judgment on four of the five claims. Prior to trial in May 1999, the parties settled the lawsuit and agreed that plaintiff's claims for fees and costs should be decided by the Court. Plaintiff moves as a prevailing party for attorneys fees in the amount of $215,686.60 and costs in the amount of $10,107.11.
Plaintiff initially requested $214,390 [Doc. #180] in attorney's fees. Plaintiff later reduced her fee request $4,897.30 in response to defendants' objections. In her reply brief, plaintiff seeks additional fees of $3,437.50 for Attorney Adler and $2,756.25 for Attorney Meyer for the time spent preparing the fee application and reviewing defendants' objections to the fee application. [Doc. ##189, 190].
For the reasons that follow, plaintiff's application for attorney's fees and costs is GRANTED, as modified herein. [Doc. #180].
Attorney's Fees Award
Standard
A plaintiff who prevails in a Title VII action may collect attorneys' fees from a defendant under Title VII, which permits a court "in its discretion, [to] allow the prevailing party . . . a reasonable attorney's fee . . . as part of the costs" of the action. 42 U.S.C. § 2000e-5(k). The district court is afforded broad discretion in assessing a reasonable fee award based on the circumstances of the case. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Id. The plaintiff is entitled to the lodestar amount which is calculated from the product of a reasonable hourly rate and the number of hours reasonably expended by each attorney. See Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1999); Greenbaum v. Svenska Handelsbanken, N.Y., 998 F. Supp. 301, 303 (S.D.N.Y. 1998). The lodestar figure may be adjusted based on several factors; however, there is a strong presumption that it represents a reasonable fee. See Quaratino, 166 F.3d at 425 (citations omitted). "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, as well as hours dedicated to severable unsuccessful claims." Quaratino, 166 F.3d at 425 (citing Hensley, 461 U.S. at 433-35, 440). "[A]ttorney's fees are to be awarded with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1140 (2d Cir. 1983).
Reasonable Rates
Plaintiff requested the following hourly billing rates for the various attorneys and law clerks:
Judith D. Meyer, partner $175 Dawn Gallo Scarpelli, law clerk/associate $ 65/$100 Rebecca Vicente, associate $100 Gregg D. Adler, partner $275 James Marcus, associate $100 Mark Soycher, attorney $195 Laurie Sablak, law clerk $ 65 Frederick Frangie, law clerk $ 65 Robert Fortgang, partner $225 Chris Dugan, law clerk $ 65 Michelle Duprey, associate $100
Ms. Gallo Scarpelli's work was billed at the rate of $65 per hour when she was a law student, while the work she performed as a first year associate was billed at the rate of $100 per hour. [Doc. #184 at 4].
In calculating the lodestar figure, a district court should use the reasonable hourly rates which are prevailing in the community. Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). The appropriate community rate is determined by assessing the market rates in the forum of the litigation. Defendants did not object to the rates charged by the attorneys and law clerks in this case.
The Court has reviewed the affidavits of Robert Fortgang, Judith Meyer, Gregg Adler and Jonathan Gould and finds the rates to be reasonable in light of the community and the attorneys' and law clerks' experience. [Doc. ## 182, 183, 184, 185].
Attorney Adler's March 6, 2000 request for $290 per hour is denied. See Doc. #194.
Applying the lodestar, plaintiff requests the following in legal fees.
Attorney/Law Clerk Hours Hourly Rate Amount
Judith D. Meyer 938.17 $175 $164,179.75 Dawn Gallo Scarpelli 224.91 $ 65 $ 14,619.15 Dawn Gallo Scarpelli 11.00 $100 $ 1,100.00 Rebecca Vicente 100.80 $100 $ 10,080.00 Gregg D. Adler 68.50 $275 $ 18,837.50 James Marcus 42.62 $100 $ 4,262.00 Mark Soycher 21.65 $195 $ 4,221.75 Laurie Sablak 11.25 $ 65 $ 731.25 Frederick Frangie 7.50 $ 65 $ 487.50 Robert Fortgang 6.75 $225 $ 1,518.75 Chris Dugan 2.25 $ 65 $ 146.25 Michelle Duprey 4.00 $100 $ 400.00 ________ _____ ___________
Sub-Total 1,439.40 $220,583.90 Voluntary Reduction ($ 4,897.30) ____________ TOTAL $215,686.60
Based on objections raised by defendants, plaintiff agreed to reduce the fees by $4,897.30, [Doc. #189 at 7-8; Doc. #190 ¶ 3], as follows:
Judith D. Meyer $ 525.00 Dawn Gallo Scarpelli $ 336.05 Rebecca Vicente $2,370.00 James Marcus $1,487.50 Mark Soycher $ 146.25 Frederick Frangie $ 32.50 ___________ $4,897.30
Reduction of Compensable Hours
Next, the Court considers defendants' challenge to the number of compensable hours. Defendants argue that the fees should be reduced because the Court granted summary judgment on four of plaintiff's five claims. They further urge the Court to reduce particular fee requests which they contend are not attributable to the case, or are "vague, inadequate or excessive billing entries," in the amount of $43,335.30, or approximately 20% of the fees claimed. Last, defendants object to any award of attorneys' fees and costs to plaintiff's counsel in light of the sanctionable conduct in this case.
"In reviewing a fee application, the district court examines the particular hours expended by counsel with a view to the value of the work product of the specific expenditures to the client's case." Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997) (citation omitted). Unreasonable expenditures of time should be excluded from the lodestar calculation. Id.
1. Vague or Inadequate Billing
Defendants seek a reduction of $2,800 for "calls and conferences with unidentified individuals;" $1,216 for "unspecified supervision of junior associates;" $6,671.25 for "phone calls on unspecified topics;" $3,578.75 for "correspondence on unspecified topics;" $3,710 for "conferences on unspecified topics;" $132.50 for "research on unspecified topics;" and $1,460 for "review and analysis of unspecified documents," or a total of $19,568.50 for what defendants characterize as vague and insufficient billing records. After careful consideration, this Court exercises its discretion to reduce the fee award because the descriptions in some of counsels' time records are vague and/or inadequate. See Hensley, 461 U.S. at 433 (permitting a district court to reduce a fee award where the documentation of hours is inadequate). Counsel may recover fees only for entries that "identify the general subject matter of [their] time expenditures." Id. at 437 n. 12. To survive a dispute about the sufficiency of time entries, lawyers should include a reference line in their description of the work they performed. Wilder, 975 F. Supp. at 286.
Time Not Attributable to Case
Defendants seek a reduction of the lodestar in the amount of $1,176.05 for time not attributable to the case. Plaintiff concedes that the entries of then-law clerk Gallo, dated September 4, 1996 in the amount of $227.50 and September 5, 1996 in the amount of $108.55, are not attributable to this case. The Court accepts Attorney Meyer's explanation of the time entries for October 24, 1997 and December 22, 1998. [Doc. #191 at 1-2]. Accordingly, the lodestar figure is reduced in the amount of $336.05.
This reduction to the lodestar has already been taken. See infra n. 4.
Calls and Conferences with Unidentified Individuals
Defendant seeks a reduction of the lodestar in the amount of $2,800 for calls and conferences with unidentified individuals. The Court accepts Attorney Meyer's explanation for the time entries of August 11 18, 1995, and January 16-17, 19, 25-26, 1996. [Doc. #191 at 13]. Attorney Meyer provided no explanation for her entry dated January 18, 1996 for 3.50 hours in the amount of $612.50. Accordingly, the lodestar is reduced in the amount of $612.50.
Unspecified "Supervision" of Junior Attorneys
Defendants argue that Attorney Meyer's unspecified time entries for "supervision" of junior attorneys and support personnel, totaling $1,216, should be disallowed. Attorney Meyer contends that "[i]f these entries are taken in context with the rest of the billing statements, the topic for supervision becomes readily apparent." [Doc. #191 at 3]. However, the Court finds that senior counsel's involvement was to some extent either inefficient or excessive. Attorney Meyer offers no explanation how her supervision was necessary for the time entries on September 20, 1995, May 2, 1996, and December 12, 1996. [Doc. #191 at 4]. Thus, these time entries will be disallowed. Moreover, the Court will disallow the time entries of August 22 31 and September 11, 1995 to supervise Attorney Vicente, "who was new to the case." [Doc. #191 at 4].
Based on careful review, the Court finds the remaining disputed time entries reasonable. The Court has reviewed Attorney Gallo's time entry for August 2, 1995, for .42 hours, which states "started to sort documents produced to plaintiff, for Attorney Meyer." Attorney Meyer's billing of 1.5 hours to supervise Ms. Gallo and draft correspondence to defendants' Attorney Sommer appears reasonable in this context. Similarly, the Court has reviewed Attorney Marcus' time entry of .50 hours on November 1, 1994 to prepare correspondence to opposing counsel and finds that Attorney Meyer's time entry of .2 hour entered the same day (to review returns of service and review Attorney Marcus' work) is reasonable and should be allowed. The Court also finds that Attorney Meyer's August 18, 1995 time entry for 1 hour (supervision of Attorney Gallo's draft memorandum in support of the motion to compel) is reasonable. Accordingly, the lodestar figure is reduced in the amount of $603.75.
Phone Calls on Unspecified Topics
Defendants object to time entries for unspecified phone calls totaling $6,671.25.
Attorney Adler asserts in his supplemental affidavit that his time entries for telephone calls on November 2, 1998 and March 26 June 11, 1999, "were directly related to the completion of the settlement of this case or the preparation of the fee application." [Doc. #190 ¶ 2]. The Court has considered these time entries and finds they are reasonable.
Moreover, the Court will not disallow the telephone calls from January 15 through June 11, 1999, attributable to settlement of this case.
The Court has reviewed Attorney Meyer's time entry for 9.2 hours on March 3, 1997 for "numerous telephone calls as well as other work performed, follow[ing] immediately after a trial notice issued from the Court, alerting the parties that the case was to be tried immediately" and finds the time preparing for trial was unreasonable in light of plaintiff's multiple requests to continue trial. [Doc. ##128, 129, 191 at 6]. The lodestar figure will be reduced in the amount of $1,610.
Plaintiff has withdrawn the time entry of December 27, 1996 in the amount of $315.
The Court has reviewed the other contested time entries, including the eight calls to the client, and finds they are reasonable. Accordingly, the lodestar figure is reduced another $1,925.
Correspondence and Conferences on Unspecified Topics
Defendants similarly argue for a lodestar reduction of $3,578.75 for billing excessive time to correspondence, and conferences on unspecified topics totaling $3,710. The Court finds that the time entry for September 22, 1994, "drafting of letters to CCHRO, EEOC, Attorney Silverman. Review of file" for 1.5 hours totaling $262.50 is reasonable and sufficiently specific. Attorney Meyer's time entries of April 20 21, 1995, totaling 3.6 hours, for "receipt and review of discovery objections and responses; drafting of correspondence with Attorney Sommer; drafting of correspondence with client. T/C with Attorney Sommer's office" is sufficiently specific. The Court also accepts Attorney Adler's explanation in this supplemental affidavit that the time entries of March 28 and April 28, 1999 were attributable to settlement.
Plaintiff provides no other explanation for the other vague entries, such as "review correspondence," "drafting of correspondence," "revised correspondence," except to say that "[n]early all of the correspondence listed in this section of the Defense Memorandum relates to discovery issues." [Doc. #191 at 6]. Plaintiff's vague and blanket descriptions do not adequately inform the Court of the nature and extent of the work performed and therefore provide an inadequate basis to determine the reasonableness of these claimed hours.
Other courts have applied an across the board reduction due to entries that failed to indicate the issue researched or the subject of a conference call, telephone call, or meeting. See Local 32B-32J, Serv. Employees Int'l Union, AFL-CIO v. Port Auth. of New York and New Jersey, 180 F.R.D. 251, 253 (S.D.N.Y. 1998) (reducing the requested attorney's fees by 20% due to vague descriptions in the time records, such as "research and draft papers" where the entry did not indicate the topic researched; and "phone and meetings" and "conferences" where the entry did not describe the nature of the discussions); Williams v. New York Housing Auth., 975 F. Supp. 317, 327-28 (S.D.N.Y. 1997) (reducing the lodestar figure by 10% due to vague and inadequate time entries, including "discuss w/george," "call w/samuel," and "ltr to plaintiff"); Wilder v. Bernstein, 975 F. Supp. 276, 286, recons. denied, 982 F. Supp. 264 (S.D.N.Y. 1997) (reducing two lawyers' lodestar figures by 10% because the attorneys had made cryptic and vague time entries, such as "reviewed correspondence," "reviewed docs," and "TC w/Elaine Walsh"); Connecticut Hospital Assoc. v. O'Neill, 891 F. Supp. 687, 690-91 (D.Conn. 1994) (reducing the fee request by 10% based on vague entries which stated that the attorney had "a conference with," a "call to," or a "call from"); Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 520 (S.D.N.Y. 1994) (reducing the lodestar figure by 30% due to vague entries, such as "research for brief," "draft and edit brief," "telephone call to S. Berger," and "review Macklowe files"); Gonzalez v. Town of Stratford, 830 F. Supp. 111, 114 (D.Conn. 1992) (applying a 10% reduction to a fee award for inadequately documented time entries which merely indicated that an attorney performed "research" or had a "telephone conference"); Grogg v. General Motors Corp., 612 F. Supp. 1375, 1380 (S.D.N.Y. 1985) (reducing an award by 50% because there was "substantial duplication of effort" and because "some of the descriptions of the work performed are vague and therefore not susceptible to a determination of whether the time was reasonably expended").
Accordingly, the lodestar is reduced $2,570 for correspondence on unspecified topics.
The Court has reviewed Attorney Meyer's explanation for the conferences objected to by defendants and finds her explanation to be sufficiently specific. Thus, no lodestar reduction is warranted on these grounds.
Research on Unspecified Topics
Plaintiff agrees to reduce her fee request for time entries on January 25 and October 18, 1996, totaling $132.50, that were contested by defendants for research on unspecified topics. [Doc. #189 at 7]. Accordingly, the lodestar figure is reduced by $132.50.
Review and Analysis of Unspecified Documents
Plaintiff also fails to address with any specificity the contested time entries totaling $1,460, except to point out that "[i]t is unreasonable to suggest the plaintiff's attorneys should have described these more specifically in their billing records." [Doc. 191 at 8]. Accordingly, the lodestar figure is reduced by $1,460.
2. Undue or Duplicative Billing
Defendants seek a further reduction in the amount of $6,120 for undue or excessive billing. As a preliminary matter, plaintiff contends that she excluded 70.46 hours from the fee application which she considered "excessive or duplicative." [Doc. #181 at 5]. This included 4.2 hours billed relating to the transition of the case from the Fortgang firm to the Meyer firm as being not fairly attributable to the case. Id. at 6. Plaintiff agreed to eliminate the September 8 28, 1995 entries of Attorney Vicente, totaling $2,270, in response to defendants' objections. [Doc. #189 at 7].
This reduction to the lodestar has already been taken. See infra n. 4.
Plaintiff also agreed to reduce Attorney Meyer's hourly rate from $175 to $87.50 for travel time on July 13 and September 8, 1995, (round-trip travel from Attorney Meyer's firm to the Federal Court takes three hours), resulting in a reduction of the lodestar figure of $525. [Doc. #189 at 7].
This reduction to the lodestar has already been taken. See infra n. 4.
Defendants seek a further reduction for the time billed by Attorney Meyer to prepare and attend the discovery conferences on July 13 and September 8, 1995 as excessive. Defendants ask the Court to reduce the billing for Attorney Meyer to prepare for and attend the conferences to three hours each. The Court agrees and reduces Attorney Meyer's time by 1.5 hours for July 13, 1995 and 4.7 hours for September 8, 1995 totaling 6.2 hours or $1,085.
Attorney Meyer billed 7.5 hours on July 15, 1995 for "attendance at discovery conference; t/c with client" and 10.7 hours on September 8, 1995 for "conference at court re: discovery issues" totaling 18 hours. Six hours is attributed to travel time, for which plaintiff agreed to reduce her hourly rate by half for a total deduction of $525. See infra n. 4. Thus, the Court will consider whether 4.5 hours on July 13, 1995 and 7.7 hours on September 8, 1995 is reasonable.
Last, defendants object to the time entry of January 31, 1997 in the amount of $667 for "preparation for client meeting." The Court finds 3.8 hours excessive in light of the frequency of counsel's contacts with her client and thus reduces the fee by 50% or $333.50.
In reading Attorney Meyer's billing records in the context of this billing entry, the records indicate that Attorney Meyer spoke with or corresponded with her client on December 18, 27 and 31, 1996, and January 10 and 22, 1997 prior to the conference on January 31, 1997. Moreover, Attorney Meyer has a time entry of 3.3 hours on January 27, 1997 for "analysis and evaluation of discovery documents for chronology." Thus, this time entry appears unreasonable when taken in context of the billing record as a whole, notwithstanding Attorney Meyer's claim that "it was necessary to review all the information obtained throughout the discovery process, and highlight the questions to address with the client at the meeting the following business day." [Doc. #191 at 8].
Accordingly, the lodestar figure will be reduced in the amount of $333.50 for undue or duplicative time billed for appearances.
The reduction to the lodestar of $525 and $2,270 has already been taken. See infra n. 4.
Settlement
Defendants request that the Court disallow all of Attorney Adler's time, which was spent on trial preparation and settlement, in the amount of $18,837.50 as "entirely" duplicative of Attorney Meyer's time. [Doc. #187]. Plaintiff states that Attorney Meyer did not have "extensive" trial experience in discrimination cases, while Attorney Adler "is highly experienced and has tried many employment cases [and] was retained to be lead counsel for the trial of this matter." Plaintiff argues that "in light of the significant hostility expressed by defense counsel toward Attorney Meyer, and his stated preference to negotiate the final settlement terms with Attorney Adler, there is no duplication of effort of which defendants can reasonably claim." [Doc. #189 at 8]. The Court has carefully reviewed Attorney Adler's billing records and compared them to Attorney Meyer's records and finds that Attorneys Adler and Meyer were essentially billing for the same tasks. The Court concludes from this review that the actual time spent by both attorneys was not reasonable. Luciano, 109 F.3d at 117. From October 28, 1998 through May 7, 1999, Attorney Adler billed plaintiff 68.5 hours for time charged to trial preparation and settlement. Attorney Meyer billed 65.70 hours during the same period. The Court exercises its discretion to disallow half of Ms. Meyer's time or 32.85 hours, or $5,748.75, for that same time period. Accordingly, the lodestar figure is further reduced $5,748.75 for undue or excessive billing.
The Court notes that Attorney Adler did not charge for two subsequent time entries, May 20 and May 25, 1999, attributable to settlement of the case. It appears from the descriptions of the time entries after May 7, 1999, that counsel was preparing this application for fees and costs.
The Court notes that Attorney Meyer billed her client for telephone calls with Attorney Adler beginning in May 1997 through July 1998. Attorney Adler filed an appearance on October 30, 1998. [Doc. #165]. Defendants do not challenge these time entries.
3. Clerical Duties
The Court reduces the lodestar figure by $146.25 in time billed that is attributable to clerical duties. Plaintiff does not object to this reduction. [Doc. #189 at 8].
This reduction to the lodestar has already been taken. See infra n. 4.
4. Discovery Responses
Defendants contest as excessive the 29.75 hours billed by plaintiff's counsel, at a cost of $2,975, to draft interrogatories and document requests. These hours were billed by a first year associate, James Marcus, at a rate of $100 per hour. [Doc. #184 at ¶ 9]. Defendants contend that only 10 hours should be allotted for these tasks and that the remaining $1,975 should be disallowed. Plaintiff consents to a reduction by fifty percent (50%), or 15 hours, at a cost of $1,487.50. Upon consideration, the Court reduces the lodestar further by $487.50 to account for the first year associate's inexperience for a total of $1,975.
The reduction of $1,487.50 to the lodestar has already been taken. See infra n. 4.
Judith D. Meyer
938.17 hours (requested) — 3.00 hours (voluntary reduction) — 3.50 hours (conference with unidentified witness) — 3.45 hours (unspecified "supervision" of junior attorneys) — 11.00 hours (phone calls on unspecified topics) — 7.90 hours (correspondence on unspecified topics) — 7.20 hours (review and analysis of unspecified documents) — 40.95 hours (undue or duplicative billing) _________________________________
861.17 total hours x $175 = $150,704.75
Dawn Gallo Scarpelli (law clerk)
224.91 hours (requested) — 5.17 hours (voluntary reduction) ______________________________________ 219.74 total hours x $ 65 = $ 14,283.10
Dawn Gallo Scarpelli (associate)
11.00 hours (requested) x $100 = $ 1,100.00
Rebecca Vicente
100.80 hours (requested) — 23.70 hours (voluntary reduction) — 1.00 hour (correspondence on unspecified topics) — 1.00 hour (research on unspecified topics) _________________________________ 75.10 total hours x $100 = $ 7,510.00
Gregg D. Adler
68.50 hours (requested) x $275 = $ 18,837.50
James Marcus
42.62 hours (requested) — 14.88 hours (voluntary reduction) — .75 hour (correspondence on unspecified topics) — 2.00 hours (review and analysis of unspecified documents) — 4.75 hours (unnecessary time billed to discovery responses) ____________________________________ 20.24 total hours x $100 = $ 2,024.00
Mark Soycher
21.65 hours (requested) — .75 hour (voluntary reduction) _____________________________ 20.90 total hours x $195 = $ 4,075.50
Laurie Sablak
11.25 hours (requested) x $ 65 = $ 731.25
Frederick Frangie
7.50 hours (requested) — .50 hour (voluntary reduction) — .50 hour (research on unspecified topics) _____________________________ 6.50 total hours x $ 65 = $ 422.50Robert Fortgang
6.75 hours (requested) — 4.50 hours (correspondence on unspecified topics) _____________________________ 2.25 total hours x $225 = $ 506.25Chris Dugan
2.25 hours (requested) x $ 65 = $ 146.25
Michelle Duprey
4.00 hours (requested) x $100 = $ 400.00 ______________ Total $201,602.27
5. Unsuccessful Claims
The next issue is whether the time spent on plaintiff's unsuccessful claims should be included in the fee calculation. One of the factors for adjusting the lodestar may be based on the particular "results obtained." Quaratino, 166 F.3d at 425 (citation omitted). "Attorney's fees may be awarded for unsuccessful claims as well as successful ones, however, where they are inextricably intertwined and involve a common core of facts or are based on related legal theories." Id., 166 F.3d at 425 (citations and internal quotation marks omitted).
Comparing the relief sought by plaintiffs to the relief she obtained, the Court finds it would be inappropriate to award the full amount of plaintiff's requested fee. Hensley, 461 U.S. at 434; see Marshall v. State of New York Division of Police, 31 F. Supp.2d 100, 109 (N.D.N.Y. 1998) (stating the Second Circuit has "expressly rejected a requirement in civil rights cases that an award of attorneys fees be computed in strict proportion to the degree of success a plaintiff has achieved.) (citing Lunday v. City of Albany, 42 F.3d 131, 134-35 (2d Cir. 1994); Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 525-28 (2d Cir. 1991)). On summary judgment, plaintiff conceded that supervisors, such as defendant Kataoka, could not be held liable under Title VII. [Ruling on Summary Judgment, Doc. #155 at 7]. The Court also found that Valenti's claim of discriminatory demotion did not amount to a continuing violation and was time-barred. Summary judgment was also granted on plaintiff's discrimination claim of failure to promote. The Court found that "plaintiff has not presented evidence to support a rational finding that CCI's reasons were false and that unlawful discrimination was the true reason she was not promoted to QA Manager." [Doc. #155 at 15]. The Court also granted summary judgment in favor of defendants on plaintiff's state law claims of intentional infliction of emotional distress and breach of employment contract. In denying the breach of contract claim, the Court relied on the case law in this district which holds that disclaimers in employment handbooks are sufficient to defeat a claim that an employment contract has been created. [Doc. #155 at 23]. Plaintiff maintains that the claims are so intertwined that they cannot be separated.
While plaintiff reduced her fee petition by 20.25 hours for what she contends is the time attributable to her unsuccessful claim of intentional infliction of emotional distress, which she concedes is not "interconnected" with the other claims [Doc. #181 at 6], the Court finds it impossible to determine from the billing records the time spent on this claim and finds this estimate low in light of the total 1,439.40 hours spent by plaintiff's counsel on this case. Moreover, plaintiff's claim of intentional infliction of emotional distress was not based on the underlying pregnancy and sex discrimination claims, but rather on the alleged conduct of defendant Kataoka criticizing her work, speaking to her in a loud angry accusatory voice and to pounding his fists, a demeaning attitude, and "frequent allusions to her option to quit if she was unhappy." [Doc. #155 at 21].
Indeed, time devoted to this claim includes, but is not limited to, litigation of defendants' motion to compel mental examination which was opposed by plaintiff and ruled on by the Court. [Doc. ##59, 61, 65, 71, 72, 94]. Defendants' counsel devoted a considerable amount of time to this claim. See Doc. #168 (time entries 1/22/96 through 10/30/96).
Similarly, plaintiff's demotion and failure to promote claims were based on different factual and legal theories from the failure to reinstate claim that survived summary judgment. Plaintiff's claims for demotion and failure to promote arose in April 1992 and July 1992, while her claim for failure to reinstate arose following plaintiff's conclusion of her maternity leave in January 1993. Defendants argue, and the Court agrees, that the "facts she would have to prove to make out the demotion and failure to promote claims (her ability to perform the jobs in question compared with the abilities of the persons actually selected to do those jobs) have no bearing whatsoever on the facts she would have to show to prove her failure to reinstate claim (whether the job she was offered was substantially similar to the job she held before)." [Doc. #187 at 8]. The Court finds that these claims are both temporally and substantively distinct and unrelated.
The Court finds that a 20% reduction properly reflects the degree of plaintiff's success as one of the claims dismissed on summary judgment was conceded by plaintiff and the dismissed federal and state law claims did not arise from the same facts or related legal theories. A percentage reduction method has been approved by the Second Circuit "as a practical means of trimming fat from a fee application." New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d. Cir. 1983); see Bick v. City of New York, No. 95 Civ. 8781, 1998 WL 190283, *32 (S.D.N.Y. April 21, 1998) (finding "the libel claims, the claim for intentional infliction of emotional distress and the retaliation claim . . . are not closely related to the successful gender claims because the facts that plaintiff needed to prove in order to prevail on these common-law claims . . . differ markedly from the facts at issue in the plaintiff's successful gender-discrimination claims."); Marshall v. State of New York Division of State Police, 31 F. Supp.2d 100, 108-09 (N.D.N.Y 1998) (reducing overall fee award 50% for unsuccessful 1994 failure to promote and retaliation claims and dismissal of individual defendants); Tanzini v. Marine Midland Bank, N.A., 978 F. Supp. 70, 84 (N.D.N.Y. 1997) (excluding hours spent on breach of oral employment contract claim as "the existence of that contract turned upon factual issues wholly unrelated to the discrimination claims . . . [and] involved entirely different legal theories."); Kim v. Dial Service Int'l, Inc., No. 96CIV3327, 1997 WL 458783 *18-19 (N.D.N.Y. Aug. 11, 1997) (reducing fee award 30% for unsuccessful breach of contract claim and age discrimination claim, finding that these were separate claims with separate legal theories); Corbett v. Wild West Enterprises, Inc., 713 F. Supp. 1360, 1362-67 (D.Nev. 1989) (fee award reduced to $24,800 from $207,848.38 requested for excessive hours, inadequate documentation and unsuccessful gender discrimination and state law claims); Scales v. J.C. Bradford and Co., 925 F.2d 901, 910 (6th Cir. 1991) (reducing fee award 50% for unsuccessful constructive discharge and Equal Pay act claims).
In calculating a 20% reduction in the lodestar figure for partial recovery, the Court has left untouched all of Attorney Adler's time in the amount of $18,837.50, and the 25.60 hours at $4,489.85, billed by Attorney Meyer in preparation of this fee application. [Doc. 185, 190]. Attorney Fortgang did not bill for time spent preparing this fee application. [Doc. #184 at ~19].
Total Lodestar $201,602.27 Less Attorney Adler's time -18,837.50 Less Attorney Meyer's time to prepare fee appl. — 4,489.85 _______________ Adjusted total $178,274.92
Less 20% for partial recovery $-35,654.98 ________________ $142,619.94 Adding in Attorney Meyer's time to prepare fee appl. $ 4,489.89 _________________ $147,109.83 Adding in Attorney Adler's time $ 18,837.50 __________________
Adjusted Lodestar $165,947.33
6. Sanctionable Conduct
While defendants do not challenge plaintiff's status as a prevailing party, they argue that the fee award should be reduced by the amount of costs and fees incurred by them in connection with plaintiff's counsel's sanctionable conduct, or $126,972.11. LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998) (a party "who has prevailed in the litigation has established only his eligibility for, not his entitlement to, an award of fees."). Defendants argue for imposition of sanctions against plaintiff's counsel for: (1) disclosure of confidential documents in violation of this Court's order; (2) misconduct of plaintiff's counsel; (3) unreasonable and vexatious multiplication of these proceedings; (4) frivolous objections to plaintiff's mental examination; and (5) misrepresentations to the Court.
In considering defendants' arguments, the Court carefully reviewed defendants' memorandum in support of the motion for sanctions [Doc. #167, Doc. #188, Ex.B], the affidavits of Attorney Marc L. Silverman [Doc. #166, Ex. A-N, Doc. #168], plaintiff's opposition to defendants' motion for sanctions [Doc. #195], and the affidavit of Judith Meyer dated September 15, 1999. [Doc. #191]. The Court has extensive knowledge of the issues raised in the motion for sanctions, based on the undersigned's involvement in supervising the discovery process.
Judge Nevas referred all discovery matters to this Magistrate Judge beginning in June 1995. [Doc. ##21, 49, 54, 55, 63, 69, 83, 107, 132, 169].
The Court expressly reserved a ruling on sanctions until after a resolution on the merits, stating
The Court intends to address fully the issues presented in defendants' motion for sanctions. However, the Court prefers to defer a ruling on this motion until it can examine all of the sanctionable conduct complained of at once and after the close of discovery. The record reflects that defendants currently seek attorneys' fees and costs in the following motions: Defendants' Motion to Compel Mental Examination [Doc. #59]; Plaintiff's Motion to Strike Affidavit of Paul Marchand and to Vacate Protective Order [Doc. #64]; Defendants' Motion for Protective Order to Preclude the Continuance of the Deposition of Martin Barolli [Doc. #66]; Plaintiff's Motion for an Extend Time to Complete the Deposition of Hidetsugu Kataoka [Doc. #68] and Plaintiff's Motion to Compel Hidetsugu Kataoka's Attendance at the deposition [Doc. #85]. In refiling their motion for sanctions, defendants should endeavor to summarize the sanctionable conduct during the discovery phase of this litigation, specify whether sanctions are sought against plaintiff individually or plaintiff's counsel, and include an affidavit of reasonable fees and costs sought.
[Doc. #93 at 2]. The parties have now consented to a determination of the attorneys' fees application, including the motion for sanctions, by the magistrate judge.
Before proceeding to consider the specific claims of sanctionable conduct raised by defendants, the Court notes that the discovery phase of this litigation was extraordinarily acrimonious. The Court, based on its observations of counsel over several years, believes that much of the conduct by plaintiff's counsel of which defendants complain was occasioned by her sincere desire to zealously represent her client and by her frustration at the equally zealous, more experienced, and better financed defense with which she found herself contending. Perhaps due to her inexperience, plaintiff's counsel responded to zealous opposition with intemperate remarks and a tendency to identify opposing counsel with their client. Overtures from defense counsel were met with hostility and suspicion. Something approaching a siege mentality developed, which severely hampered the ability of both sides to discuss and resolve their differences in a constructive manner.
Disclosure of Confidential Documents
Defendants seek monetary sanctions for disclosure of confidential documents [Doc. #17] in defiance of this Court's order dated July 27, 1995. See Doc. #24. On October 18, 1995, this Court ordered that the exhibits to plaintiff's motion for sanctions be placed under seal and remain sealed until further order of the court. [Doc. #31]. Plaintiff argues, with no support in the record, that her counsel "never defied an order of this Court, but sought and obtained the Court's permission prior to having the documents at issue delivered to chambers via Federal Express." [Doc. #195 at 2]. The record reflects that plaintiff's motion for sanctions was filed with the clerk of the court along with the exhibits containing the confidential documents. Plaintiff took no steps to file the documents under seal or insure that they would be identified as an in camera submission to the Court. To that extent, at least, the protective order was violated.
Plaintiff next argues that there is no basis for the imposition of sanctions as "there was not intent to disobey an order of the Court, the standard for sanctions under Local Rule 31 or Rule 37(b)(2). . . ." Neither rule requires proof of intent before sanctions can be imposed, nor does plaintiff provide any case law in support of this contention.
Last, plaintiff may not shift the blame to defendants for her improper disclosure of confidential documents by claiming that defense counsel failed to make a request to file the confidential documents under seal when plaintiff raised her intention to file a motion for sanctions challenging the confidential status of the documents. Defense counsel was under no obligation to anticipate that plaintiff's counsel would not take appropriate steps to protect the confidentiality of the documents, particularly in light of the extensive argument which led to the Court's order.
The Court concludes that plaintiff's counsel's actions are a basis for sanctions under Fed.R.Civ.P. 37(b)(2) and D. Conn. L. Civ. P. 31. In light of the fact that defense counsels' prompt intervention resulted in no public disclosure of the documents, an appropriate sanction is the defendants' cost to remedy the violation.
Conduct of Plaintiff's Counsel
The Court has carefully considered the parties' arguments and has taken care to re-read the relevant Court orders and rulings, cited excerpts of deposition transcripts and all of the exhibits appended to the affidavits of Mr. Silverman and Ms. Meyer. The record clearly establishes that Ms. Meyer engaged in needless adversarial, rude and insulting exchanges with witnesses and defendants' counsel on the record, in depositions, and in other proceedings. The record further establishes that extensive Court monitoring was necessary to accomplish simple tasks, such as scheduling plaintiff's depositions and a mental health examination of plaintiff, confining plaintiff's counsel to discrete subject areas limited by the Court, and completing plaintiff's discovery within the discovery cut-off. Intervention included conducting plaintiff's deposition of defendant Kataoka in the presence of the Court.
Plaintiff's counsel's conduct includes, but is not limited to, the following. See Doc. #90 at 6-8, n. 4, Ruling on Motion to Strike Affidavit of Paul Marchand and Vacate Protective Order (this Court citing deposition of Paul Marchand and the "unintended impression" plaintiff's counsel created with the Court), Id. at 9, n. 5 (quoting Martin Barolli's affidavit, stating "[d]uring my deposition on 3/1/96, plaintiff's counsel questioned me — and, in fact, yelled at me and interrupted me repeatedly — as to whether information in the Manual was "truly secretive" or could be "ascertainable through proper means," which she defined as "something short of espionage". . . .); Doc. #165, Ex. E, Ex. B, excerpt of Barolli deposition; Doc. #29, Order at 2 (cautioning counsel "to confine their arguments in all subsequent pleadings and proceedings to the merits of the pending motions or matters at issue" and warning "that they may not engage in ad hominem attacks on opposing counsel."); Doc. #167 at 13-14 (quoting plaintiff's counsel Ms. Meyer at deposition of defendant Kataoka saying "go soak your head" to defendant's counsel, "Mr. Kataoka, do you have a serious problem with your short-term memory", stating "Mr. Silverman, I don't care what your client thinks he has a right to. Okay? I have questions to ask him. You're taking my time for nothing and so is he. I will go on with this deposition now.", telling defense counsel to "shut up."
Unlike the violation of the protective order, there can be no claim that the abusive conduct complained of was inadvertent or unintentional, although it may in part have been the result of counsel's inexperience and frustration. Our system of civil justice depends on the ability of counsel to control their personal feelings, overlook what they regard as provocation, and behave professionally in their interaction with opposing counsel, parties and witnesses. Despite repeated admonitions, Attorney Meyer was unable to develop any constructive dialog with defense counsel or control her animosity toward the defendants and their lawyers. Consequently, proceedings multiplied, every interaction was prolonged, and the progress of discovery — and therefore the case — was impeded.
Bad faith is the touchstone of an award under § 1927. See McMahon v. Shearson/American Exp., Inc., 896 F.2d 17, 23 (2d Cir. 1990); West Virginia v. Chas. Pfizer Co., Inc., 440 F.2d 1079, 1092 (2d Cir. 1971). "Like an award made pursuant to the court's inherent power, an award under § 1927 is proper when the attorney's actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay." Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986). "By its terms, § 1927 looks to unreasonable and vexatious multiplications of proceedings; and it imposes an obligation on attorneys through the entire litigation to avoid dilatory tactics." United States v. International Broth. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991). The purpose of the statute is "to deter unnecessary delays in litigation." Id. (citation omitted). "`[B]ad faith' may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation." Oliveri, 803 F.2d at 1272 (quoting Hall v. Cole, 412 U.S. 1, 15 (1973)) (internal quotations omitted); see Milltex Indus. v. Jacquard Lace Co., 55 F.3d at 37-38 ("[A] court may impose attorney's fees under its inherent power as a penalty for misconduct during the course of litigation."); Rotblut v. Thaler, No. 96 CIV 5762, 1998 WL 846124 (S.D.N.Y. Dec. 3, 1998), aff'd, 1999 WL 58362 (S.D.N.Y. Feb. 5, 1999) (expenses and reasonable attorneys' fees awarded under Fed.R.Civ.P. 16(f), 37(b)(2) and 28 U.S.C. § 1927 as a result of plaintiff's "misconduct in discovery, including meritless resistance to proper discovery demands, repeated groundless motion practice and complaints about defendants' behavior in discovery, numerous efforts to reargue issues long since decided by the court, and deliberate footdragging in scheduling discovery (including their own)"). Zink Communications v. Elliott, 141 F.R.D. 406, 408 (S.D.N.Y. 1992) ("Sanctions, derived from rule or statute, and the trial court's supervisory powers are available to curb or punish excessive or inappropriate litigation conduct.").
Section 1927 provides,
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
The deposition conduct was therefore sanctionable under Fed.R.Civ.P. 30(d)(2) and the unreasonable and vexatious multiplication of proceedings is sanctionable under 28 U.S.C. § 1927.
Relitigation of Issues
Defendants seek a further reduction in the attorneys' fees application for plaintiff's counsel's persistent relitigation of issues long since decided by the Court. Defendants first argue, and the record establishes, that plaintiff challenged this Court's protective order limiting disclosure of certain documents and CCI's Quality Assurance manual to "Counsel's Eyes Only" at least fifteen times. Because the Court finds that plaintiff's counsel multiplied the proceedings unreasonably, this conduct is a basis for further reduction of the attorneys' fees award pursuant to 28 U.S.C. § 1927.
See Doc. #188, Ex. B at 15, n. 1, Doc. #92 at 3, n. 4.
Defendants also argue that plaintiff "frivolously and vexatiously" objected to the propriety of defendants' responses to interrogatories at least six times and "frivolously" objected to almost every ruling by this Magistrate Judge. See Doc. #188, Ex. B at 16, n. 2. The Court finds that the record does not establish a basis for reduction of the fee award for plaintiff's objections to defendants' responses to interrogatories. The Court declines to order a reduction to the fee award on the basis of plaintiff's objections to the Magistrate's rulings.
Defendants' Motion to Compel Mental Examination
On September 27, 1996, this Court granted defendants' Motion to Compel a Mental Examination [Doc. #94] of plaintiff, stating "[t]here was sufficient evidence that defendants made a good faith effort to arrange for the mental examination." [Doc. #94 at 3]. The Court deferred decision on defendants' motion for attorneys' fees and costs until it could be considered in conjunction with defendants' other motions for sanctions. Id. Defendants renew their claim for sanctions here and seek a reduction in the attorneys' fees award. The Court has reread the original pleadings and reviewed plaintiff's opposition to sanctions and finds the record establishes a basis for reduction of the fee award pursuant to Fed.R.Civ.P. 37(a)(4)(A).
Misrepresentations to the Court
Last, defendant seeks a reduction of the fee award on the basis of plaintiff's counsel's "numerous blatant misstatements and mischaracterizations to the Court in this action. The Court has carefully considered the parties' arguments and submissions on this issue and finds a reduction of the fee award is warranted, pursuant to 28 U.S.C. § 1927. [Doc. #188, Ex. B at 18; Doc. #166, Ex. N; Doc. #191 Meyer Aff. ¶ 11, Ex. 2].
Including but not limited to:
Plaintiff's counsel's unfounded accusation that defendants failed to produce a disability claim form which defense counsel showed to plaintiff during her September 29, 1995 deposition;
Plaintiff's counsel's false contention that her client never represented that she could only continue her September 28, 1995 deposition until 6:00 p.m.; and
Plaintiff's counsel's false statement that defense counsel did not notify either plaintiff or her counsel of a September 29, 1995 deposition date.
Considering the Appropriate Sanction
Reasonable Rates
After careful review of the record, the Court finds that a reduction of the lodestar figure is warranted for the conduct of plaintiff's counsel during the course of this litigation which resulted in excessive requests for Court intervention and an unwarranted increase in the number of hours spent on motion practice. Defendants seek $126,972.11 as a result of plaintiff's counsel's conduct.
The Court does not reduce the fee award to Attorney Adler in the amount of $18,837.50, as defendants do not seek sanctions concerning his conduct in this litigation.
The Court first examines whether defendant's fee request reflects the reasonable hourly rates which prevail in the District of Connecticut. Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). The appropriate community rate is determined by assessing the market rates in the forum of the litigation. See Luciano, 109 F.3d at 115-16 (applying the rates of the forum district — the Eastern District of New York — instead of the [Doc. #188, Ex. B at 19, Doc. #166 Ex. N at 9-10, 19-21, 24-26]. market rates of the Southern District of New York, which was the district of plaintiff's Manhattan-based counsel); Cruz v. Local Union Number 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir. 1994) (stating that the relevant community is the judicial district in which the trial court sits) (citation and internal quotation marks omitted). The Court does not consider the prevailing rates in the Second Circuit as a whole, but only the billing rates of the District of Connecticut.
Defendants requested the following hourly billing rates for their attorneys:
Mr. Silverman is a partner at Paul Hastings, Janofsky Walker, LLP in New York, and has been practicing labor and employment law since 1972. Ms. Sommer is an associate with Paul Hastings and has been practicing law since 1990. Defendants did not provide work experience for Attorneys Fealy and Levin.
Marc L. Silverman, partner $325-340
Nancy L. Sommer, associate $215-250
Elizabeth A, Fealy, associate $135
David S. Levin, associate $180
After carefully reviewing defendants' fee application and supporting documents, we find that defendants did not sustain their burden of establishing that the requested rates are consistent with those prevailing in the community for similar services. In his affidavit, Marc Silverman did not specify the experience, skill and reputation of Attorneys Fealy and Levin. In addition, to an attorney's own affidavit, a fee applicant must produce satisfactory evidence "that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895-96 n. 11. The Court has compared the experience and hourly rates charged by plaintiff's attorneys with the billable rates charged by defendants' attorneys and reduces defendants' fee request by 10% or $12,697.21, to account for the differences between hourly rates charged in New York City and the District of Connecticut. This reduces defendants' fee request to $114,274.90.
Other Reductions
The Court further reduces defendants' fee request 10% because the Court did not find plaintiff's objections to defendants' responses to interrogatories or plaintiff's objections to the Magistrate's rulings warranted sanctions. It is impossible to ascertain from defendants' counsels' time records with precision what portion of the attorneys' fees charged in connection with these two issues should be deducted. Even though counsel provided extensive and generally adequate descriptions, often these description were listed together in one time entry. Thus, the Court deducts 10% percent, or $11,427.49, reducing the total fees requested to $102,847.41.
Alternative Grounds
Alternatively, there seems to be authority for the Court to reduce an attorneys' fees award to reflect conduct by plaintiff's counsel that inflated the lodestar figure. Where, as here, plaintiff's counsel engaged in extensive unnecessary disputes with opposing counsel about numerous discovery issues, and thereby prolonged both individual proceedings such as depositions, and extended the pendency of the case, the Court declines to award the responsible lawyer the full amount of fees claimed. See Luciano v. Olsten Corp., 109 F.3d 111, 116-117 (2d Cir. 1997) (reducing compensable hours for "contentious" behavior, lack of cooperation, excessive requests for Court intervention and the increased numbers of hours spent of the case by attorneys).
Conclusion
In light of all the foregoing findings, the Court will reduce the adjusted lodestar figure arrived at for Attorney Meyer and her associates by the adjusted fees expended by defendants based on the misconduct of plaintiff's counsel as follows:
See infra at p. 22 and p. 31, n. 23.
Adjusted Lodestar $147,109.83
Less reduction for sanctionable conduc -102,847.41 ___________ Attorneys' Fees Award $ 44,262.42
Costs
In addition to receiving attorneys' fees, a prevailing party may be entitled to recover reasonable out-of-pocket expenses that were incurred during the litigation and that are normally charged to a fee-paying client. United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989), (citing Reichman v. Bonsignore, Brignati Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)), cert. denied, 493 U.S. 1071 (1990). Generally, recoverable expenses include those items not associated with an attorney's routine overhead, such as duplicating, postage, and telephone costs. LeBlanc-Sternberg, 143 F.3d at 763; Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir. 1987). Although plaintiff requested $10,107.11 in costs, the Court excludes from this amount any entries for federal express charges, see D. Conn. L. Civ.R. 17(c)(7)(xvi); photocopy charges, see D. Conn. L. Civ.R. 17(c)(7)(xv); attorney's fees incurred in attending and/or traveling to depositions, see D. Conn. L. Civ.R. 17(c)(7)(v) (ix); postage, see D. Conn. L. Civ.R. 17(c)(7)(xvi); expedited transcript, see D. Conn. L. Civ. R. 17(c)(7)(iv); tapes of deposition, see D. Conn. L. Civ.R. 17(c)(2)(ii). The Court also excludes time entries which did not correspond to the billing entries (such as a March 24, 1997 request for appearance fee and deposition transcripts when no time records indicate that someone traveled for the case on that date), and vague entries (such as "Eastern Conn."). While service fees are recoverable as costs "for summonses and initial process, subpoenas for non-party witnesses testifying at trial, subpoenas for depositions and the cost of mailing if service is executed by mail. . ." see D. Conn. L. Civ.R. 17(c)(1)(1), service of process fees for discovery purposes are not. See D. Conn. L. Civ.R. 17(c)(7)(i). Plaintiff's three entries for "sheriff's fees" do not specify the date or type of service. Accordingly, the Court will reduce the recovery for sheriff's fees by 50% or $76.10. The Court also excludes the amount of costs for computerized legal research because these amounts are recoverable as part of attorneys' fees, and not costs. United States ex rel. Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996); see D. Conn. L. Civ.R. 17(c)(7)(xi). Thus, the Court calculates that plaintiff is entitled to $7,845.80 in costs as follows.
Robert Fortgang Associates-Costs
$9,421.99 (requested) — 76.10 (reduction for sheriff's fees) — 720.89 (reduction for legal research) — 477.00 (reduction for tapes of deposition) — 179.67 (reduction for "excert [sic] expedite") — 9.67 (reduction for postage) — 174.36 (reduction for "Eastern Conn.") ______________________________________ $7,784.30
Law Office of Judith D. Meyer
$ 685.12 (requested) — 200.00 (reduction for prep and attendance at deposition) — 55.12 (reduction for federal express) — 350.22 (reduction for appearance fee and transcripts) — 18.28 (five copies of filing) _________________________________ $ 61.50
Total Costs $7,845.80
CONCLUSION
For the foregoing reasons, plaintiff's Application for Attorney's Fees and Costs [Doc. #180] is GRANTED as modified herein, for attorneys' fees in the amount of $18,837.50 to the law firm of Livingston, Adler, Pulda Meiklejohn for Attorney Gregg Adler's time and attorneys' fees in the amount of $44,262.42 to Robert Fortgang Associates and Law Offices of Judith D. Meyer. Cost are awarded in the amount of $7,845.80.Plaintiff's Supplemental Application for Attorneys' Fees and Costs [Doc. #194] requesting an increase in the hourly rate from $275 to $290 for Attorney Adler is DENIED.
This is not a recommended ruling. The parties consented to proceed before a United States Magistrate Judge on March 27, 2000, with appeal to the Court of Appeals.