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Andrews v. Holloway

December 1, 2003

JOHN R. ANDREWS, ET AL., PLAINTIFFS,
v.
GREGORY HOLLOWAY A/K/A GREG HOLLOWAY, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

This matter comes before this Court upon the application of plaintiffs for an order determining the amount of reasonable counsel fees and costs which plaintiffs may collect pursuant to this Court's Order of September 29, 2003 which found that the appropriate sanction for non-party witness Laura Andre's unilateral refusal to obey this Court's Order requiring her deposition was the shifting of plaintiffs' reasonable attorney fees and costs incurred in connection with their appearance at the August 7, 2003 deposition that Ms. Andre did not attend, their appearance for an August 11, 2003 telephone conference call about Ms. Andre's non-appearance, their opposition papers submitted for a reconsideration request that Ms. Andre faxed to the Court minutes prior to the August 11, 2003 telephone conference, and their appearance in Court on September 8, 2003.

The Court has reviewed plaintiffs' submissions concerning the amount of fees and expenses incurred, and Laura Andre's opposition and finds that the reasonable fees and cost which Ms. Andre must pay are $10,650.00 in attorney fees and $579.57 in costs to the law firm of Mette, Evans & Woodside, and $5,925.00 in attorneys fees and $402.14 in costs to the law firm of Teich, Groh, Frost & Zindler, for the reasons now discussed.

I. BACKGROUND

In a September 29, 2003 Opinion and Order, this Court found that non-party witness, Laura Andre acted in direct violation of this Court's Order which directed her to be deposed when she unilaterally refused to continue her deposition on August 7, 2003. The Court had ordered Ms. Andre, the current spouse and business partner of judgment debtor Gregory Holloway, to be deposed about plaintiff's new post-judgment allegations that Mr. Holloway, with Ms. Andre's assistance, fraudulently transferred or concealed assets to avoid payment of a $6,097,015.00 consent judgment entered in June 1997. Ms. Andre was a co-defendant in this case, but settled all claims against her in June 1997, prior to her marriage to defendant Gregory Holloway.

Mr. Holloway appeared for three days of deposition in March 2003. Ms. Andre then appeared for deposition on August 6, 2003, but she objected to, or refused to answer, almost all questions presented to her. The Court heard her objections by telephone that day and ruled orally, finding that the deposition must proceed and directing Ms. Andre to answer all relevant questions within the defined scope.

Counsel for Ms. Andre then requested that the deposition be adjourned for the day, and continue on August 7, 2003. On August 7th, though, Ms. Andre unilaterally decided that she would not continue her deposition.

The Court scheduled another telephone conference with the parties on August 11, 2003. Minutes prior to the conference, Ms. Andre's attorney sent a reconsideration request to the Court by facsimile, urging the Court to again determine "[t]he threshold question [which] is the scope of discovery that's allowable for Ms. Andre." (Andre 8/11/03 Ltr.) The request was not filed with the Court.

The Court decided to provide the parties an opportunity to support their positions with record evidence and to appear at a September 8, 2003 hearing. Counsel for plaintiffs filed opposition and also moved for sanctions for Ms. Andre's failure to appear at the deposition and for her use of the reconsideration request to further delay her deposition.

This Court considered the positions of the parties, and ruled on September 29, 2003, again detailing the scope of permissible discovery from non-party witness Andre and finding that Laura Andre acted in direct violation of the Court's Order when she failed to appear at the August 7, 2003 deposition. The Court determined that the appropriate sanction was a shifting to her of plaintiffs' fees and costs associated with their appearance at the August 7, 2003 deposition, their appearance at the August 11, 2003 telephone conference call, their opposition to Ms. Andre's reconsideration request, and their September 8, 2003 appearance.

Plaintiffs then submitted their fee applications on October 10, 2003, and counsel for Ms. Andre filed her opposition on October 23, 2003. The Court has considered the submissions and finds that a total of $17,556.71 in fees and costs were reasonably incurred in connection with the August and September proceedings detailed in the Court's September 29, 2003 Opinion and Order.

II. DISCUSSION *fn1

The "starting point" for determining what attorneys' fees are reasonable in any case is to calculate a "lodestar" amount; "that is, the number of hours reasonably expended multiplied by a reasonable hourly rate." Blakey v. Cont'l Airlines, Inc., 2 F. Supp. 2d 598 (D.N.J. 1998) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). When calculating the lodestar, the district court must "carefully and critically evaluate the hours and the hourly rate set forth by counsel." Blakey, 2 F. Supp. 2d at 602. Then, the lodestar formula is presumed to yield a reasonable attorneys' fee which is "adequate to attract competent counsel, but which does not produce a windfall to attorneys." Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (citing Burlington v. Dague, 505 U.S. 557, 112 S. Ct. 2638, 120 L.Ed.2d 449 (1992)); Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).

The party seeking the attorneys' fees has the burden to prove that the request is reasonable. Rode v. Dellaciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The party must submit evidence to support the hours worked and the rates claimed so that the court does not need to speculate as to how the attorneys used their time. Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d Cir. 1992). The court has great discretion in deciding what attorneys' fees are reasonable in a case, but cannot "decrease a fee award based on factors not raised at all by the adverse party." Rode, 892 F.2d at 1183 (quoting Bell v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir. 1989)). Yet, while the adverse party's objections must be clear, they do not need to challenge every specific time entry believed to be unreasonable or unnecessary. Bell, 884 F.2d at 720.

The lodestar method thus requires the Court to undertake a three-step analysis here: (a) determine a reasonable hourly rate, multiply it by (b) the number of hours reasonably expended, considering plaintiff's objections, and (c) decide whether any final adjustment is warranted. See Hensley, 461 U.S. at 433.

A. Reasonable Hourly Rate

The first step in applying the lodestar formula is to determine the appropriate hourly rate. Cityside Archives, Ltd. v. N.Y. Health and Hosp. Corp., 37 F. Supp. 2d 652, 658 (D.N.J. 1999). The party seeking the rate, here the plaintiffs, bears the burden of producing sufficient evidence of what constitutes a "reasonable market rate for the essential character and complexity of the legal services rendered." Evans v. Port Auth. of N.Y. and N.J., 273 F.3d 346, 361 (3d Cir. 2001) (quoting Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997)). A reasonable market rate also depends on the "experience and skill of the attorneys" and on the rates for "similar services by lawyers of reasonably comparable skill, experience, and reputation." Rode, 892 F.2d at 1183. Once the applicant has made a prima facie showing of a reasonable hourly rate, the opponent may contest the rate, "but only with appropriate record evidence." Evans, 273 F.3d at 361. With such evidence, the court has great discretion to adjust the rate. Id. Without such evidence, the applicant "must be awarded attorneys' fees at [its] requested rate." Id.

Here, David A. Fitzsimons, Esquire, attorney for plaintiff Louis Larson, seeks payment for his time at a $170.00 hourly rate, and for time spent by paralegal Pamela Miller Lupo at a $75.00 hourly rate. (Fitzsimons Cert.) Counsel for Ms. Andre agrees that Mr. Fitzsimons' hourly rate is reasonable. (Lipshutz Aff. ¶9.) Though he disputes payment of any fees for paralegal work because his "client is already being ordered to pay fees for two attorneys" and because the Court did not explicitly provide that paralegal fees would be awarded, he does not dispute the $75.00 hourly rate. (Id. ¶10.) The Court finds that the $75.00 hourly rate for the paralegal is reasonable and that reasonable paralegal fees are included within the scope of "attorneys fees and costs" allowed under this Court's September 29, 2003 Order. Indeed, the use of a paralegal to bill necessary work at a lesser rate is to be encouraged. Thus, this Court ...


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