UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
January 26, 1999
COUNTY OF HUDSON, ET AL.,
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 and (2) the alleged excessive use of electronic WESTLAW research.
The Court uses the "lodestar" figure in order to determine what is a reasonable fee. See ARC, Inc. v. Township of Voorhees, 986 F. Supp. 261, 267 (1997). The Court arrives at the lodestar amount by multiplying a reasonable number of hours by a reasonable hourly rate. See City of Burlington v. Dague, 505 U.S. 557, 559-60 (1992). As stated in ARC, the Supreme Court in City of Burlington explained that the lodestar amount may not be enhanced under a federal fee-shifting statute such as § 1988 by applying a contingency fee multiplier. See ARC, 986 F. Supp. at 267. See also, e.g., Rendine v. Pantzer, 141 N.J. 292, 337 (1995) (explaining how, after calculating the lodestar, the trial court in a state-law employment case should "consider whether to increase that fee to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or substantially is contingent on a successful outcome."). When applying the federal fee shifting statute in a case alleging violations of the Constitution or laws of the United States, federal courts do not follow New Jersey's contingency fee enhancement framework. Instead, there is a strong presumption in federal cases applying federal law that the lodestar amount represents a reasonable attorney's fee. See id.
In the case before the Court, plaintiff is certainly a prevailing party because, according to the Supreme Court's definition, the parties' settlement obtained for Braddy relief comparable to an enforceable judgment. See Farrar v. Hobby, 506 U.S. 103, 111 (1992). In short, Braddy was vindicated by the settlement. See, e.g., Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989) (holding that "the touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.").
At the outset, however, the Court concludes that, because plaintiff was only successful on her federal constitutional claims and was not successful on her claims that defendants violated the New Jersey Law Against Discrimination (NJLAD), she is not entitled to any contingency fee enhancement, as provided for under Rendine v. Pantzer, 141 N.J. 292 (1995). Such an enhancement is only appropriate in a federal case when plaintiff also successfully asserts a claim of discrimination under, for example, the NJLAD, N.J.S.A. 10:5-1 et seq. In this case, defendants successfully moved for summary judgment against plaintiff's claims that defendant violated the NJLAD. The Court will therefore not award any contingency fee enhancement.
Absent the requested 50% contingency fee enhancement, Ms. Loftis requests $53,805 for 179.35 hours of work, billed at $300 per hour. The Court has reviewed extensively Ms. Loftis's certification and the accompanying exhibits. The Court finds that the entries constituting the 179.35 hours are reasonable. There is nothing extraordinary in the way counsel spent her time working on this file. Although defendants object to several entries that show significant amounts of time devoted to (1) legal research and reviewing the file prior to filing the complaint (7.2 hours) *fn1 ; (2) preparing for the Lopez, Moore, and Gaines depositions (9 hours) *fn2 ; (3) attending depositions of Moore, Lopez, Gaines, Green, and Braddy (11.6 hours); and (4) the summary judgment motions (31.3 hours) *fn3 , it does not appear that plaintiff's counsel devoted more time to these activities than would any other similarly situated practicing attorney. Thus, the Court determines that 179.35 hours was reasonable and appropriate.
Defendants also claim that Ms. Loftis's hourly billing rate of $200 to $250 per hour is excessive. *fn4 They assert that plaintiff's counsel has not provided any best evidence of what is normal and reasonable in this general type of case with a client similar to Ms. Yolanda Braddy. Attached to defendants' letter brief opposing plaintiff's application for fees is an exhibit showing that Hudson County paid defense counsel $100 to $125 per hour in a similar federal case filed against the county. *fn5 Defendants maintain that Ms. Loftis should be paid a fee similar to the amount they paid to defense counsel in that matter.
The Court routinely encounters and handles all aspects of federal civil rights cases. Indeed, 42 U.S.C. § 1983 is the statutory basis for more than 10% of all cases filed in federal courts. See Chemerinsky, Federal Jurisdiction 424 (2d ed. 1994). Consequently, the Court regularly encounters fee applications and decides the appropriate hourly fee for plaintiffs' counsel in civil rights cases. Considering the complexity of the claims involved, the level of skill exercised by Ms. Loftis, and comparing this fee application to others encountered in the past, the Court concludes that an hourly fee of $250 is reasonable and appropriate. The lodestar amount awarded is therefore $44,837.50.
Finally, defendants object to $1,706 in expenses that Ms. Loftis spent on electronic WESTLAW research. Defendants attach to their letter brief a certification by a law clerk in the Hudson County Counsel's Office. The certification asserts that the law clerk was able in one half hour to locate most case law relevant to this matter. The Court is not prepared to hold that Ms. Loftis's use of WESTLAW was excessive or overly costly, because it is not at all unusual for attorneys to use electronic research in preparing motions, especially a dispositive motion for summary judgment. Thus, the Court awards expenses to plaintiff's counsel in the amount of $3,784.42.
The Court determines that the lodestar amount to be awarded to plaintiff's counsel is $44,837.50. In addition, defendants are directed to pay counsel's expenses of $3,784.42. An appropriate order follows.
cc: Hon. Alfred M. Wolin
Before the Court is plaintiff's application for attorney's fees. Defendants filed opposition, and the Court did not entertain oral argument, choosing instead to decide the application on the papers pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth in the attached opinion,
IT IS on this 26d day of January 1999
ORDERED that plaintiff's application for counsel fees is GRANTED in the amount of $44,837.50, and it is further
ORDERED that plaintiff's request for a contingency fee enhancement is DENIED, and it is further
ORDERED that plaintiff's application for reimbursement of expenses in the amount of $3,784.42 is GRANTED.
JOEL A. PISANO UNITED STATES MAGISTRATE JUDGE
cc: Hon. Alfred M. Wolin