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Eaves v. County of Cape May

January 27, 2000

PAMELA D. EAVES, PLAINTIFF,
v.
COUNTY OF CAPE MAY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff, Pamela Eaves, prevailed against defendant Cape May County at trial upon her claim of retaliation for exercise of rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-37.1, and a jury awarded Ms. Eaves $90,000. On August 10, 1998, this court entered an order granting plaintiff's motion to award prejudgment interest in the amount of $12,602.46, and Judgment was entered on August 11, 1998 in the "total [amount] of $102,602.46, together with attorney's fees and costs in an amount to be determined pursuant to Rule 54(d), Fed. R. Civ. P." Judgment, entered August 11, 1998.

As a prevailing party, plaintiff seeks recovery of attorneys' fees in the amount of $289,100 plus fees in connection with preparing this application in the amount of $2,975, for a total fee request of $292,075 *fn1

Plaintiff also seeks to recover expenses in the amount of $25,551.60. *fn2

Plaintiff also seeks to recover costs in the amount of $582. *fn3

Beyond the counsel fees, plaintiff argues that counsel is entitled to a contingency enhancement under the NJLAD of between 5% and 50%, in the court's discretion.

Pamela Eaves is an American citizen of Chinese national origin who was 64 years old at the time of trial. She was employed as the Treasurer of Cape May County and was demoted to County Comptroller on July 8, 1994. She claimed that her demotion was the result of discrimination based on age, gender, national origin, and political affiliation, and that she was subjected to a hostile work environment, including assignment to a work space that was a former storage closet. On September 15, 1994, Ms. Eaves filed a charge of discrimination with the EEOC, alleging that the defendant County, as well as defendants William E. Sturm (Director of the Board of Chosen Freeholders) and Edmund Grant (her successor as Treasurer) had discriminated against her. She also filed a New Jersey Tort Claim notice arising from these circumstances. On October 11, 1994, the County notified plaintiff that her County Comptroller position would be eliminated on October 14, 1994, prompting Ms. Eaves to amend her EEOC claim on October 13, 1994 to include a charge of retaliation for exercise of her rights. She became distraught and depressed. She ended up in the position of Supervising Account Clerk and requested sick leave. Her sick leave and disability status continued until October 30, 1995 when her employment was terminated. She claimed a significant loss of salary and benefits as well as humiliation, mental and physical pain, and damage to reputation. After a seven-day trial before a jury, plaintiff prevailed upon only one claim against one defendant, namely, unlawful retaliation by the County of Cape May for exercise of her EEOC and NJLAD rights, and she did not prevail upon any claim of actual discrimination.

The defendant, County of Cape May, opposes this fee request on numerous grounds. Defendant argues that plaintiff's requested attorney's fees must be significantly reduced because of her unsuccessful claims, *fn4 which defendant argues were distinct from the successful retaliation claim. Defendant also contests the hourly rates claimed by plaintiff's counsel, arguing that the hourly rates are not sufficiently documented as comparable to rates for lawyers of similar skill, experience, and reputation. *fn5

Defendant also challenges the extent of the time and hourly rate of counsel expended to prepare the fee petition, *fn6 and defendant also challenges various items of expenses *fn7 and costs. *fn8

In short, plaintiff's counsel seeks fees and costs of as the prevailing party at trial, in which plaintiff prevailed only upon her claim of unlawful retaliation for exercise of rights under Title VII and the NJLAD against one defendant, her employer Cape May County, and failed to prevail upon all claims relating to her underlying charges of discrimination in employment based on her national origin, gender, and age, as well as discrimination based upon political affiliation, and intentional and negligent infliction of emotional distress and unlawful interference with contractual relationship. Defendant has contested many aspects of this petition, including the extent to which plaintiff is a prevailing party, the reasonableness of hours expended for a myriad of counsel's services, the billing rates of each of plaintiff's attorneys, the reasonableness and necessity of expenses claimed, and the reasonableness of costs claimed.

II. ANALYSIS OF FACTS AND LAW

A prevailing party is entitled to recover reasonable attorney's fees and costs under both Title VII and the NJLAD, see 42 U.S.C. § 2000e-5(k); N.J.S.A. 10:5-27.1.

Despite her incomplete success, the court finds that plaintiff Eaves is a "prevailing party" because she succeeded on "any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); accord, Rendine v. Pantzer, 141 N.J. 292, 316 (1995). If a plaintiff achieved, as in this case, only partial success upon her claims, the court must address (1) whether the unsuccessful claims were unrelated to the successful claims; and (2) whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. Hensley at 434-35.

The calculation of fees is substantially similar under both Title VII and the NJLAD, with the major exception of the NJLAD contingency enhancement, discussed below. In each instance, the fees are awarded based upon the familiar lodestar calculations. The "lodestar" amount is the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433; Washington v. Philadelphia Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996); Rendine, 141 N.J. at 334-35. As stated in Rendine, 141 N.J. at 333:

Under the LAD... the first step in the fee setting process is to determine the lodestar: the number of hours reasonably expended multiplied by a reasonable hourly rate. In our view, the trial court's determination of the lodestar amount is the most significant element in the award of a reasonable fee because the function requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application.

The party requesting the fee bears the burden of proving that the request is reasonable, Hensley, 461 U.S. at 433, and in response, the party challenging the fee petition must make specific objections to the requested fee. Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d 598, 602 (D.N.J. 1998), citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Overall, the lodestar amount "is strongly presumed to yield a reasonable fee." Washington, 89 F.3d at 1035, citing City of Burlington v. Dague, 505 U.S. 557 (1992).

The court will thus determine (a) the reasonable hourly rates of plaintiff's counsel; (b) the reasonable hours expended; (c) the lodestar amount; (d) whether an adjustment to the lodestar is warranted due to plaintiff's partial success; and (e) whether a contingency enhancement should be added to the lodestar.

A. Reasonable Hourly Rates

The reasonable hourly billing rate is calculated according to the prevailing market rates in the community. Washington, 89 F.3d at 1035, citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). The prevailing party has the burden of establishing, by way of satisfactory evidence in addition to the attorney's own affidavits, that the requested hourly rates meet this standard. Washington, id., citing Blum, id. The court should assess the skill and experience of the prevailing attorneys and compare their rates to the rates in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation, Rendine, 141 N.J. at 337, and the rates should be based upon current rates rather than the rates in effect when the services were performed. Blakey, 2 F. Supp. 2d at 602, citing Rendine, 141 N.J. at 337.

Plaintiff's counsel have documented the fee application with sufficient specificity to make this determination, and the court finds as follows:

William M. Tambussi - Mr. Tambussi was lead counsel and the only attorney to speak at trial. He seeks an hourly rate equal to his billing rate of $225 per hour. His hourly rate request is supported by evidence including the Affidavit of Mark P. Rosen, Esquire, who has been a federal court practitioner in this community for almost 20 years, is familiar with Mr. Tambussi and his experience for prior litigation, and expresses the opinion that Mr. Tambussi's $225 per hour rate for 1998 is reasonable when judged against the rates charged by practitioners with comparable experience and skill in this field. (Rosen Aff. ¶ 7.) Mr. Tambussi is a Certified Civil Trial Attorney who was admitted to the New Jersey Bar in 1983 and who is a partner in his local firm specializing on employment litigation, governmental affairs, litigation and personal injury litigation. (Tambussi Decl. ¶ 4.) Defendant proffers no evidence to the contrary. Indeed plaintiff has submitted rebuttal evidence that, in a similar employment case in Superior Court in 1998, defense counsel's firm herein (Budd, Larner) represented a plaintiff and sought and received fees based upon a $220/hour rate for Martin Aron (admitted to the Bar in 1984), a $235/hour rate for Donald P. Jacobs (admitted to the Bar in 1981), and a rate of $135/hour for fourth year associate Jeffrey P. Gardner (admitted to the Bar in 1994). See Pl. Reply Brief at Ex. B (attaching Budd, Larner's Brief in Phillips v. Flemington Fur Co., et al., Docket No. HNT-L-112-95 (N.J. Super., Law Div., Hunterdon County) at p.11.)) The court approves this rate of $225 per hour for an attorney of Mr. Tambussi's skill and experience in this field.

Christine P. O'Hearn - Ms. O'Hearn seeks approval of an hourly rate of $175. Ms. O'Hearn was admitted to the Bar in 1993 and in 1998 was a fifth year associate whose practice concentrated in employment litigation and personal injury litigation. Defendant seeks to reduce this rate to $150 per hour in line with the 1998 determination in Blakey ($150 for most senior associates, and $100 for second year associate) and in Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 428 (D.N.J. 1996) ($115 for junior associates in 1996), rev'd in part on other grounds, 174 F.3d 95 (3d Cir. 1999). Plaintiff's reply submission presents no further evidence to justify the $175 rate for a fifth-year associate in 1998. The court finds that the reasonable hourly rate for Ms. O'Hearn as a fifth year associate in 1998 must be reduced to $150 per hour to fall into line with the reasonable rates in this community for attorneys of similar skill and experience.

Darlene J. Fox-Orlando - Ms. Fox-Orlando seeks approval of a $150 hourly rate. Ms. Orlando was admitted to the Bar in 1994 and was thus a fourth year associate in 1998 (including a one-year judicial clerkship), with her practice concentrated in employment litigation. Defendant seeks to reduce this rate to $115 per hour. Budd Larner's own fourth-year associate rate in 1998 was $135, as shown in the Phillips case, supra. The evidence supports the requested rate of $150 for this fourth-year associate who ably assisted in pretrial preparation and who has concentrated on employment litigation.

Therefore, the following hourly rates are approved as reasonable as of the year 1998:

William M. Tambussi `83 $225

Christine P. O'Hearn `93 $150

Darlene J. Fox-Orlando `94 $150

B. Reasonable Hours

The court must determine the number of hours reasonably expended by counsel, excluding unproductive time such as hours that are "excessive, redundant or otherwise unnecessary," Hensley, 461 U.S. at 434. Moreover, there is no rule that the fees awarded may not exceed the damages award, Hensley, 461 U.S. at 424, and the Supreme Court has upheld, in a civil rights case involving police misconduct, a lodestar-based fee award of more than $200,000 even though the verdict was for just $33,000, Riverside v. Rivera, 477 U.S. 561 (1986) (plurality). The lodestar should not be reduced simply because the plaintiff recovered a lower damage award, and the Third Circuit has confirmed that no proportionality review is permitted to establish some ratio between the amount of the damage recovery and the attorney's fee award. Washington, 89 F.3d at 1041-1403; Northeast Women's Center v. McMonagle, 889 F.2d 466, 476-77 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (1990); Cunningham v. City of McKeesport, 807 F.2d 49, 53-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987). The court thus rejects defendant's primary contention that the fee request is excessive as judged by the relationship between the lodestar fees sought and the amount of the verdict because that is a comparison this court cannot make.

The second principal lodestar-related objection, that the hours claimed includes time expended on unsuccessful claims, may result in the exclusion of time spent on unsuccessful discrete claims based on distinctly different facts and theories. Hensley, 461 U.S. at 434.

In recognition of this, at the outset, plaintiff's counsel have deducted 8.4 hours of time from the original billing records which were believed to be duplicative, unnecessary, or not chargeable to the client, (Tambussi Cert. ¶ 11), as well as 70.0 hours of time spent prosecuting plaintiff's claim of termination in violation of public policy. (Id. ¶ 12.) I have reviewed those 78.4 hours of entries and agree that they were properly excluded from the initial submission.

1. Time devoted to witnesses principally relevant to unsuccessful discrimination claims.

Here, defendant objects to various items of services performed by counsel that related to plaintiff's fact witnesses in depositions and trial, where those witnesses provided no testimony about plaintiff's only successful claim, namely, retaliation. Those witnesses were Harry Scott, Philip Mattalucci, Daniel Kaminski, Sheppard Taylor, Terry Downey, Eileen Fausey, Peggy Mathis and Belle Oleferuk. Likewise, defendant would exclude time devoted to deposing and examining defendant's witnesses at trial who gave little or no testimony regarding the retaliation claim, namely, Diane Rudolph, Lucille Cresse, Jeanette Powers, and expert witness Kenneth Moore. Defendant has sought to exclude specific time entries indicated on a marked-up version of plaintiff's counsel's fee affidavit and billing records (Def. Br. Ex. A), which amount to excluding 76.4 hours of Mr. Tambussi's time, 119.6 hours of Ms. Fox-Orlando's time, and 7.6 hours of Ms. O'Hearn's time as allegedly "clearly spent on unsuccessful claims, duplicative entries, and/or unnecessary trial attendance," Def. Br. at 9-10, n. 6 (emphasis in original). Defendant also seeks to exclude other unidentified time entries which are unrelated to the retaliation claim, id, but the descriptions are allegedly too vague to permit it to do so.

It must be recognized that in this case, as in most multiple-claim cases, the attorneys' time records are not kept on a claim-by-claim basis. Where plaintiff alleges multiple bases for recovery under the theories of discrimination, retaliation, and common law claims, it is "unrealistic to suppose that her attorneys would divide their time entries based on closely related causes of action." Blakey, 2 F. Supp. 2d at 606. It is thus difficult for defendant, or this court, to pinpoint particular entries that relate solely to an unsuccessful claim.

A look at defendant's objections in Def. Br. Ex. A confirms this difficulty. It is not always apparent, from defendant's opposition papers, why particular items were objectionable. About 200 hours have been crossed off by defense counsel without further indication of reasons or explanation. For example, defendant's first two strike-outs are for time spent by Mr. Tambussi on 9/14/94 and 10/18/94 speaking with and meeting with Mattalucci. Presumably, defendant argues this time is excludable because Mattalucci provided testimony eventually at trial about Ms. Eaves' capable performance in the Treasurer's Office in connection with the unsuccessful discrimination claims but not the retaliation, which came at a time after Mattalucci had no further contact with the Cape May County Treasurer's Office. Similarly, the next objections were to billing entries of Ms. Fox on 9/8/95 and 9/11/95 related to her correspondence to Diane Rudolph, eventually a defense witness at trial who was not specifically asked about the retaliation claim, and to the billing entry of Mr. Tambussi on 9/11/95 for his preparation of a deposition notice for Lucille Cresse, who also eventually was called as a defense witness at trial without giving evidence hearing on the retaliation claim. Numerous other objections are raised to time devoted to depositions of witnesses who did not supply specific evidence at trial relating to the successful retaliation claim, such as preparing for and attending the depositions of Sheppard Taylor (7/18/96, 7/19/96, 7/22/96, 7/23/96, 8/5/96), of Diane Rudolph (8/16/96), of Lucille Cresse (7/24/96, 7/25/96, 11/4/96), of Scott and Mattalucci (11/6/96, 11/7/96, 11/8/96, 5/22/97, 5/27/97, 5/28/97, 5/30/97, 5/31/97, 6/2/97, 6/4/97), and other such witnesses. Defendant also objected to time spent reviewing and summarizing most witnesses' depositions (e.g., 11/4/96, 5/23/97, 5/27/97, 5/28/97 through 6/4/97). Each of these witnesses, however, had factual knowledge of plaintiff's performance as a Cape May County employee and their testimony, which directly related only to the unsuccessful discrimination claims, may be at least partially relevant to the successful retaliation claim. This is because plaintiff was required to prove, as an element of her successful retaliation claim, that she had a reasonable belief in the truth of her claim of discrimination when she filed her charge with the EEOC, and the court's Jury Instruction No. 24 (Apr. 30, 1998) required this element of proof. Plaintiff had to develop at least some evidence supporting the reasonableness of the EEOC charge that she filed on September 15, 1994, which was amended on October 13, 1994. At the trial, the jury was free to determine that plaintiff failed to adduce a preponderance of the evidence of unlawful discrimination, while also finding that she nonetheless had a reasonable belief that the defendants had so discriminated when she filed her EEOC charge.

Rather than parsing seven days of trial testimony of many witnesses on this point, this court must acknowledge that it would be impossible to conclude that all time related to these witnesses pertained solely to the unsuccessful discrimination claim. Undoubtedly, much of the time expended with these witnesses was devoted to the discrimination claim and of little or no use in the retaliation claim, but there is no reliable way to make this calculation on an event-by-event basis over four years of time.

The better course, rather than attempting to segregate these and other efforts as related solely to the unsuccessful claims, is to consider reduction of the lodestar to the extent that the hours expended are excessive given her limited success in the case. Blakey, 2 F. Supp. 2d at 606-607. This choice comes from the Supreme Court which directed that the downward adjustment from the lodestar for partial success can be determined in two ways: "the district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for limited success. The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37; see, e.g., Rode v. Dellarciprete, 892 F.2d at 1183 (citations omitted); Blakey, 2 F. Supp. 2d at 606-607; Rendine, 741 N.J. at 337; Finch v. Hercules, 941 F. Supp. 1395, 1426-27 (D. Del. 1996); see also Norton v. Wilshire Credit Corp., 36 F. Supp. 2d 216, 221 (D.N.J. 1999) (same analysis for partial success under Fair Debt Collection Practices Act). The court will address this reduction for partial success in Part II.D, below.

2. Duplicative services

The other objections are addressed now, starting with services that were duplicative. The defendant has objected to occasions when more than one plaintiff's attorney attended a deposition. The court agrees that where experienced trial counsel (Mr. Tambussi) has prepared for the deposition and is conducting or defending it, there is no necessity to have second counsel also preparing and attending for plaintiff. No such need has been demonstrated in this case, and the court will sustain defendant's objections and exclude the following billing entries as duplicative and therefore excessive:

6/27/96 Ms. Fox 5.00 hrs. Attend Eaves dep.

7/11/96 Ms. Fox 3.50 hrs. Attend Eaves dep.

Defendant objects to multiple counsel appearing at trial for plaintiff. The multiple defendants were represented throughout the trial by one attorney, Mr. Bressman, while plaintiff had two attorneys, Mr. Tambussi and Ms. Fox-Orlando. While Ms. Fox-Orlando contributed to plaintiff's success by her preparation work, including research and writing, she was not called upon to argue points at trial nor to conduct examination or cross-examination. Under the circumstances, the hours for actual attendance at trial are duplicative and therefore excessive. Where a daily entry contains tasks for trial preparation and attendance, only the hours for attendance are excluded, as the court finds that the preparation time was reasonable to assist trial counsel. The court sustains defendant's objection to the following billing entries which will be excluded from the lodestar:

4/22/98Ms. 9.40 Attend trial

- Fox hrs.

4/23/98Ms. 8.20 Attend trial

- Fox hrs.

4/27/98Ms. 2.50 Attend trial

- Fox hrs.

4/28/98Ms. 7.00 ...


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