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Braddy v. County of Hudson

January 26, 1999


The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge


Before the Court is plaintiff's application for attorney's fees. Defendants filed opposition, and the Court decides the application on the papers pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, plaintiff's application is granted but the Court denies any contingency fee enhancement.


For a detailed discussion of the facts of this case, see this Court's opinion and order that were filed on August 24, 1998. It will suffice to explain that, in short, plaintiff was a corrections officer at the Hudson County Correctional Center (HCCC). On January 4, 1995, a former inmate, Anthony Torres, was released on parole from the HCCC. Torres was no longer subject to the jurisdiction of the HCCC after his release on parole. After January 4, 1995, plaintiff and Torres associated together and later married. When HCCC's warden, Ralph Green, learned of Torres's and plaintiff's liaisons, he initiated actions that eventually resulted in plaintiff losing her job. In documents previously before the Court, defendants specifically admitted that plaintiff's termination was a result of her fraternization with Torres. Plaintiff filed suit against Hudson County, the Hudson County Sheriff's Office, and the warden of the HCCC, alleging that their terminating her employment was a violation of the United States Constitution and in violation of state and federal anti-discrimination laws.

The parties consented to the jurisdiction of the undersigned for all purposes, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c). Plaintiff moved for summary judgment on her constitutional claims, and defendants opposed summary judgment and cross-moved for summary judgment on plaintiff's discrimination claims. This Court granted plaintiff's motion for summary judgment on her constitutional claims. Specifically, the Court concluded that the prison's anti-fraternization policy significantly interfered with the right to marry, was not closely tailored to accomplish only important state interests, and therefore was unconstitutional as a matter of law. The county defendants were adjudged liable under 42 U.S.C. § 1983 because they enforced this official policy by terminating plaintiff's employment. In addition, this Court granted defendants' cross-motion for summary judgment, concluding that plaintiff failed to establish a prima facie case of employment discrimination. The Court determined that no genuine issue of material fact existed as to whether plaintiff suffered disparate treatment owing to her protected status as a Latina. Thus, summary judgment for defendants on plaintiff's discrimination claims was appropriate.

The undersigned convened a successful settlement conference on October 14, 1998. Defendants agreed to remove all negative documentation from plaintiff's employment file concerning her termination. In addition, defendants agreed to pay to plaintiff $110,000 in compensatory damages. This Court then granted plaintiff's counsel's request to file an application for attorney's fees.

Plaintiff now so moves. In her moving papers, plaintiff's counsel, Ms. Loftis, asserts that plaintiff is a prevailing party as defined under 42 U.S.C. § 1988 (Letter Brief from Loftis to Judge Pisano of 11/2/98, at 2). As such and in accordance with § 1988, she argues, plaintiff's counsel is entitled to her reasonable attorney's fees (Id.). Ms. Loftis maintains that plaintiff's rights of action were unique and that this necessitated spending a total of 179.35 hours in researching, drafting pleadings and motion papers, drafting correspondence, and attending conferences with defense counsel and the Court (Id. at 3). Ms. Loftis also asserts that many telephone conversations with her adversary from the county counsel's office were actually not recorded because the attorneys discussed many different pending matters during those conversations (Id. at 3-4). Finally, Ms. Loftis's expenses totaled $3,784.42, of which plaintiff has already paid $2,000 (Id. at 4).

In light of the foregoing, Ms. Loftis argues that a lodestar amount is appropriate (Id.). Ms. Loftis further asserts that, considering her experience and skills, $300 is a reasonable hourly charge (Id.). She claims that Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d 598, 602 (D.N.J. 1998), supports her contention that $300 per hour is "the prevailing rate for experienced attorneys in the field of employment law." (Id.) Therefore, Ms. Loftis requests attorney's fees of $53,805, which is 179.35 hours of work at $300 per hour (Id.). In addition, Ms. Loftis requests a contingency enhancement pursuant to New Jersey case law. See Rendine v. Pantzer, 141 N.J. 292 (1995). Ms. Loftis maintains that, because plaintiff has been unemployed since her termination, there existed a significant risk that plaintiff would not pay her attorney if the case was unsuccessful. Thus, Ms. Loftis states that a 50% contingency enhancement would be appropriate, bringing to $80,707.50 the amount that plaintiff's counsel seeks. Counsel also requested that she be awarded the $3,784.42 in costs.

Plaintiff attaches a certification to the fee application. Therein, she details her employment experience gained during nineteen years as an attorney. Exhibit B to the certification is a list of time entries and expenses incurred in connection with the case. This time and expense report was contemporaneously maintained using electronic software (Loftis Cert. ¶ 9). Paragraph 10 of the certification explains that Ms. Loftis took the case on a contingency basis. Counsel for plaintiff also states in her certification that, absent any contingency enhancement, she normally charges clients in similar cases between $200 to $250 per hour. Finally, the certification contends that this case presented a novel issue of law and, consequently, counsel--as a solo practitioner--was unable to oversee other matter in her office when this case required attention.

Defendant, on the other hand, contends "that counsel for plaintiff is not entitled to attorney's fees to the extent and degree applied for and that the hourly rate suggested is excessive." (Defendants' Letter Brief by Dermody, 11/25/98, at 1). Although defendants concede that plaintiff is a prevailing party for the purposes of 42 U.S.C. § 1988, they claim that she was only partially successful and that this operates to reduce the amount of fees awarded (Id. at 2). Defendants also assert that a reasonable fee may be less than the actual fee charged by the prevailing party's counsel (Id.). Defendants further highlight that an upward adjustment is only appropriate when issues in a case are overly novel or complex. (Id. at 3) Absent that, defendants maintain that "[t]here is a presumption that the resulting lodestar figure represents a reasonable fee." (Id. (citing Blanchard v. Bergeron, 489 U.S. 87, 95 (1989)). Finally, defendants declare that plaintiff's counsel's use of electronic WESTLAW research was excessive and unnecessary (Id. at 4, 7).


A prevailing litigant is normally not entitled to collect attorneys' fees from the losing party. See Alyeska Pipeline Serv. v. Wilderness Soc'y, 421 U.S. 240, 245, 247 (1975). Congress has determined, however, that fee shifting is appropriate under certain civil rights statues, including 42 U.S.C. § 1983. To that end, 42 U.S.C. § 1988 states:

In any action or proceeding to enforce a provision of [§ 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . .

Although the award of fees is discretionary, defendants do not contest seriously the notion that some fees will be awarded to plaintiff's counsel. Rather, defendants object to (1) the amount of time spent by Ms. Loftis at different stages of the litigation ...

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