principal part of the litigation which dealt with the storage of
the Lincoln x-rays.
On August 18, 1998, this Court entered judgment in favor of
Cityside but refrained from entering a final judgment until
counsel for Cityside, Mr. Leonard Berkeley, provided the Court
with affidavits of services rendered that included only those
fees incurred in connection with the Pierce records portion of
Thereafter, Mr. Berkeley filed two separate motions; a Motion
to be Relieved as Counsel and a Motion for Attorney's Fees.
NYCHHC also filed a Motion to Amend the Court's Judgment and
filed several briefs in opposition to Mr. Berkeley's Motion for
Despite this Court's instructions to submit an itemized list of
fees incurred only in connection with the Pierce records, on
September 29, 1998, Mr. Leonard Berkeley, submitted a letter
brief and a Supplemental Certification in support of the Motion
for Attorney's Fees. In his letter brief, Mr. Berkeley once again
indicated that he was relying upon the previously-submitted
Certification of Services and reiterated that, "[t]here was
virtually no time spent exclusively on the issues of either the
Lincoln records stored at Pierce Leahy or the Lincoln u-rays
stored at Pierce Leahy." See September 29, 1998 letter brief
submitted by Leonard Berkeley, Esq., pages 1-2; see also original
Certification dated June 12, 1998. In the Supplemental
Certification, Mr. Berkeley contended that, "It is my belief, and
only a belief, that perhaps 10% of the time, if that much was
related to the issue of the [Lincoln] x-ray storage." See
Supplemental Certification dated September 29, 1998, ¶ 4.
Upon review of Mr. Berkeley's letter brief and Supplemental
Certification, this Court once again contacted Mr. Berkeley's
office, via telephone, and inquired into whether Mr. Berkeley had
any intention of complying with this Court's direction to focus
only on the attorney's fees accrued in connection with the Pierce
Leahy records. Mr. Berkeley represented that he was relying on
the September 29, 1998 letter brief submitted, the Supplemental
Certification, as well as, the original Certification of Services
and Exhibit # 228 (a mass of paper two-inches thick typed in the
most microscopic print). Mr. Berkeley memorialized this
conversation in a brief letter to the Court and enclosed an
additional copy of the referenced documents for ease of
reference. See October 8, 1998 letter submitted by Leonard
Berkeley, Esq. and attached documents.
Subsequent to NYCHHC being given the opportunity to oppose the
Motion for Attorney's Fees, Mr. Berkeley then filed an additional
Certification on October 19, 1998 wherein he reiterated that,
"For the reasons set forth herein it is truly believed that
Cityside is entitled to all of the counsel fees requested in its
prior submission." See Certification of Leonard Berkeley dated
October 19, 1998, ¶ 16.
Essentially, Mr. Berkeley maintains the position that virtually
no time was spent on matters unrelated to the Pierce records and,
accordingly, requests that this Court grant counsel's request for
attorney's fees in the amount of $630,703.40.
I. Motion to Amend the Judgment
A proper motion to alter or amend a judgment "must rely on one
of three major grounds: `(1)an intervening change in controlling
law; (2) the availability of new evidence [not available
previously]; or (3) the need to correct clear error [of law] or
prevent manifest injustice.'" North River Insurance Company v.
CIGNA Reinsurance Company, 52 F.3d 1194 (3d Cir. 1995)(citing
Natural Resources Defense Council v. U.S. Envtl. Protection
Agency, 705 F. Supp. 698, 702 (D.D.C. 1989)(quoting All Hawaii
Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 649
(D.Haw. 1987), rev'd on oth. grds, 855 F.2d 860 (9th Cir. 1988),
vacated on oth. grds., 707 F. Supp. 3 (D.D.C. 1989))).
In this matter, defendant NYCHHC filed a Motion to Amend the
Judgment which was entered by this Court on August 18, 1998.
Specifically, NYCHHC contends that the Judgment, which was
limited to the issue of damages relating to the breach of the
Agreement between the parties, should be amended to reflect a
different allocation of money to Cityside with respect to the
With regard to the removal charges, this Court held that
Cityside would have received $14.75 per storage unit, plus $1.00
per storage unit in computer-related charges at the end of the
storage term when the records were released. When the Court
multiplied the number of storage units (2,327) by the
aforementioned figures, the Court determined that Cityside was
entitled to $36,650.25 in removal charges of the Pierce records.
NYCHHC contends that the damage award with respect to the
removal charges in favor of Cityside should be reduced by the
amount of $11,778.13*fn1 because the present amount awarded to
Cityside represents a "windfall" not permitted in a breach of
contract action. More specifically, NYCHHC asserts that this
Court's calculation of Cityside's damages did not take into
account the fact that Cityside never paid Pierce Leahy's removal
charges because Cityside never actually transferred the records
stored with that vendor. NYCHHC argues that "since Cityside would
have had to pay Pierce Leahy's removal charges before
transferring those records, the Court's Judgment actually places
Cityside in a better position than it would have been in had
there been performance with respect to those records." See Brief
in Support of NYCHHC's Motion to Amend Judgment.
NYCHHC calculated the $11,778.13 figure as follows:
Quantity Storage Unit Price
(888) 1 storage unit box/1.2 cubic feet = $5.27 ea.
(79) 2 storage unit boxes/2.4 cubic feet = $10.02 ea.
(427) 3 storage unit boxes/3.6 cubic feet = $14.77 ea.
This Court is in agreement that the calculation with respect to
the removal charges, as it is reflected in this Court's Judgment
set forth in the August 18, 1998 Letter Opinion, constitutes a
windfall to Cityside and does not take into account the fact that
Cityside would have had to pay Pierce Leahy's removal charges
before transferring those records. Accordingly, the amount
awarded for removal charges is $24,872.12. Thus, this Court's
original Judgment totaling $92,989.12 is reduced by $11,778.13 to
reflect a Judgment of $81,210.99 in Cityside's favor, prior to
any award of attorney's fees.*fn2
II. Motion for Attorney's Fees
Generally, attorney's fees will not be awarded in a federal
action unless: (1)
a contract*fn3 expressly provides for the payment of attorney's
fees; (2) a statute expressly provides for the allowance of
attorney's fees;*fn4 (3) a "common benefit" is conferred by the
recovery of a fund or property; (4) a party willfully disobeyed a
court order; (5) the court makes a finding that the losing party
has acted in bad faith, vexatiously, wantonly or for oppressive
reasons. Skehan v. Board of Trustees of Bloomsburg State College,
et al., 538 F.2d 53, 56 (3d Cir. 1976), cert. denied,
429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976).
In this matter, pursuant to paragraph 6.3 of the Storage and
Service Agreement, Cityside is entitled to recover "all
reasonable attorney's fees and costs incurred in connection with
enforcement of this Agreement." (emphasis added). Accordingly,
any award of attorney's fees in connection with this matter is
authorized pursuant to the express terms of the contract.
A district court has broad discretion in awarding attorney's
fees "so long as it `employs correct standards and procedures and
makes findings of fact [which are] not clearly erroneous.'"
Pennsylvania Environmental Defense Foundation v. Canon-McMillan
School District, 152 F.3d 228, 232 (3d Cir. 1998) (citing Public
Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179,
1184 (3d Cir. 1995) (quoting Northeast Women's Center v.
McMonagle, 889 F.2d 466, 475 (3d Cir. 1989))). See also Graziano
v. Harrison, 950 F.2d 107 (3d Cir. 1991). In evaluating the
proper amount of attorney's fees to award in certain cases, the
Third Circuit most recently has been guided by the standards and
procedures articulated in two United States Supreme Court cases,
Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983) and Pennsylvania v. Delaware Valley Citizens' Council for
Clean Air 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439
Environmental Defense Foundation v. Canon-McMillan School
District, 152 F.3d 228, 231 (3d Cir. 1998). In both cases, the
Supreme Court adopted the "lodestar" formula, which requires
multiplying the number of hours reasonably expended by the
reasonable hourly rate. Id.
The first step in applying the lodestar formula is to determine
the appropriate hourly rate. In determining the appropriate
hourly rate, the court should first consider the attorney's usual
billing rate. Id. (citing Public Interest Research Group of N.J.,
Inc. v. Windal; 51 F.3d 1179, 1185 (3d Cir. 1995)). The Supreme
Court has indicated that the district court can also consider the
"prevailing market rates" in the relevant community to assist in
the determination of an appropriate hourly rate. Id. (citing Blum
v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891
In this matter, Mr. Berkeley has indicated in his original
Certification that the hourly rates charged were either $175.00,
$225.00, or $275.00, depending upon the level of skill acquired
by the attorney performing the work. See original Certification
dated June 12, 1998, ¶ 4. Upon review of the hourly rates
charged and in light of the relative market rates, this Court
does not find that the hourly rates submitted are excessive.
In calculating the second part of the lodestar formula, the
time reasonably expended, "[the district court] should review the
time charged, decide whether the hours set out were reasonably
expended for each of the particular purposes described and then
exclude those that are `excessive, redundant, or otherwise
unnecessary'" Id. (citing Public Interest Research Group of N.J.,
Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (quoting
Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933)). Time expended is
considered "reasonable" if the work performed was "useful and of
a type ordinarily necessary to secure the final result obtained
from the litigation." Pennsylvania v. Delaware Valley Citizens'
Council for Clean Air, 478 U.S. 546, 560-61, 106 S.Ct. 3088, 92
L.Ed.2d 439 (1986).
Once the lodestar formula has been applied and a calculation
determined, the district court may then consider "the
relationship between the degree of success and the amount of the
award." Pennsylvania Environmental Defense Foundation v.
Canon-McMillan School District, 152 F.3d 228, 231 (3d Cir. 1998)
(quoting Public Interest Research Group of N.J., Inc. v. Windall,
51 F.3d 1179, 1190 (3d Cir. 1995)). See also Hensley v.
Eckerhart, 461 U.S. 424, 436-40, 103 S.Ct. 1933, 76 L.Ed.2d 40
(1983) (asserting that "the most critical factor [in the analysis
of whether to award attorney's fees] is the degree of success
obtained."). The Hensley Court opined that the award may be
. . a plaintiff has achieved only partial
or limited success, [since] the product of
hours reasonably expended on the litigation
as a whole times a reasonably hourly
rate may be an excessive amount.
This will be true even where the plaintiffs
claims were interrelated, nonfrivolous,
and raised in good faith.
Hensley, 461 U.S. at 436, 103 S.Ct. 1933. See also Blakey v.
Continental Airlines, 2 F. Supp.2d 598, 605 (D.N.J. 1998). The
Hensley Court continued the analysis, and offered guidance to the
district court on reducing an award of attorney's fees, when the
Court stated that: