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INTERFAITH COMMUNITY ORGANIZATION v. HONEYWELL INT'L

June 18, 2005.

INTERFAITH COMMUNITY ORGANIZATION, et al., Plaintiff,
v.
HONEYWELL INTERNATIONAL, INC., (formerly known as Allied Signal, Inc.), et al., Defendants.



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

OPINION

Presently before the Court is Plaintiff Interfaith Community Organization's ("ICO") application for an award of litigation costs, including attorneys' fees and expert witnesses' fees incurred in the litigation of the fee application from June 1, 2003 through September 24, 2004 and Defendant Honeywell International, Inc.'s ("Honeywell") motion for leave to file a surreply. No oral argument was heard pursuant to Rule 78 of the F.R.Civ. P. For the reasons stated in this Opinion, Plaintiff's First Supplemental Application for an Award of Litigation costs, Including Attorneys' fees and Expert Witnesses' Fees is granted. Defendant's motion for leave to file a surreply is denied.

BACKGROUND

  On May 21, 2003, this Court entered an Amended Opinion granting judgment in favor of ICO and ECARG with regard to ICO and ECARG's 42 U.S.C. § 7002(a)(1)(B) claims against Honeywell. See Interfaith Community Organization v. Honeywell Int'l Inc., 263 F.Supp. 2d 796 (D.N.J. 2003). The Amended Opinion Awarded ICO and ECARG fees and costs that were "incurred in furtherance of its RCRA claim against Honeywell in this action." Id. at 850.

  On July 21, 2003, ICO filed Plaintiff's Application for an Award of Litigation Costs, Including Attorneys' Fees and Expert Witness' Fees ("ICO Fee Application"). On August 26, 2004, the Court entered an Opinion and Order awarding ICO fees and costs in the amount of $4,530,327.00. On August 30, 2004, the Court entered an Order permitting ICO to submit a petition to recover fees and costs including attorneys' fees incurred in the preparation of ICO's July 21, 2004, fee application. On September 29, 2004, ICO filed Plaintiff's First Supplemental Application for an Award of Litigation costs, Including Attorneys' Fees and Expert Witnesses' Fees ("Supplemental Application") pursuant to the Court's Order of August 30, 2004. Honeywell filed its brief in opposition on November 9, 2004, and ICO filed its reply brief on December 6, 2004. Honeywell subsequently filed a motion for leave to file a surreply on December 23, 2004.

  ANALYSIS

  Section 7002(e) of the Resources Conservation and Recovery Act ("RCRA") 42 U.S.C. 6972(e) provides that the Court "may award costs of litigation (including reasonable attorneys' and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate." This Court having determined that ICO and ECARG*fn1 are prevailing parties in this litigation, stating in an Order dated May 16, 2003: Having prevailed on their RCRA claims, [ICO] and ECARG are entitled to an award of attorneys' fees, costs and expenses they have incurred in furtherance of their RCRA claims in this action.

  Honeywell does not dispute ICO is entitled to an award of fees. (Def.'s Br. Opp'n at 1.) Honeywell's arguments involve the number of attorney hours ICO spent litigating its initial fee application, the methodology used in computing hourly rates, ICO's use of senior partners in litigating the fee application, the excessiveness of costs and ICO's application for nonreimbursable costs.

  FEES

  Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Corp., 487 F.2d 161, 167 (3d Cir. 1971) establishes the principle that the "lodestar" is calculated by multiplying the number of hours reasonably expended by a reasonable hourly rate. The lodestar method is presumed to yield a reasonable fee. Washington v. Philadelphia Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996) (internal citations omitted).

  There are several issues that must be addressed in determining the award of attorneys' fees and costs in this matter. The Court must determine how much of ICO's work is recoverable, what rate to apply to the work, and multiply that rate by the reasonable number of hours expended to arrive at the "lodestar" amount.

  "[W]here a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Hensley, 461 U.S. at 436. Thus, adjustments to the lodestar are within the discretion of the district court. Id. at 436-37. Public Interest Research Group v. Windall, 51 F.3d 1179, 1189 (3d Cir., 1995). "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Blum v. Stenson, 465 U.S. 886, 901 (U.S., 1984).

  In this case, ICO's initial fee application sought $4,587,990.22.*fn2 This Court's Order of August 26, 2004, awarded Plaintiff a total of $4,529,785.92, a reduction of $58,204.30 or a 1.3% reduction of the amount sought.

  A. Standard for Evaluating Reasonableness of Hours Charged

  The Third Circuit has explained that, as part of the assessment of the reasonableness of fee petitions, district courts "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.'" Windall, 51 F.3d at 1188. When a defendant challenges the number of hours as being excessive, courts frequently look at two factors to guide the assessment of reasonableness — whether such charges would be billed to a fee-paying client, and what the opposing party did in the same case. In re Fine Paper Antitrust Litig., 751 F.2d 562, 587 (3d Cir. 1984); Lenard v. Argento, 808 F.2d 1242, 1245 (7th Cir. 1987); Jordan v. CCH, Inc., 230 F.Supp.2d 603, 611 (E.D.Pa. 2002); Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 63-65 (D.Del. 1992).

  In Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720 (1989), the Third Circuit held that the opposing party bears the burden of challenging the reasonableness of a fee application with sufficient specificity as to give the applicant notice and an opportunity to respond. Specifically, the Third Circuit stated that:
[A] court may not sua sponte reduce the amount of the award when the defendant has not specifically taken issue with the amount of time spent or the billing rate, either by filing affidavits, or in most cases, by raising arguments with specificity and clarity in briefs (or answering motion papers). . . . It bears noting that the district court retains a great deal of discretion in deciding what a reasonable fee award is, so long as any reduction is based on objections raised by the adverse party.
Id. (Internal citations omitted). The court went on to state that:
[T]he adverse party's submissions cannot merely allege in general terms that the time spent was excessive. In order to be sufficient, the briefs or answers challenging the fee request must be clear in two respects. First, they must generally identify the type of work being challenged, and second, they must specifically state the adverse party's grounds for contending that the hours claimed in that area are unreasonable. The briefs must be specific and clear enough that the fee applicants have a fair chance to respond and defend their request. [footnote omitted].
Id. at 720.

  In Rode v. Dellarciprete, 892 F.2d 1177, 1187 (1990), the Third Circuit explained that based on the challenges raised by the adverse party, the district court must "explain why it concludes hours expended on a task are excessive" and must "specify the number of hours that would be reasonable and why those hours would be reasonable." It also reiterated that "[t]he district court cannot `decrease a fee award based on factors not raised by the adverse party.'" 892 F.2d at 1183 (quoting Bell v. Union Princeton Properties, supra). "The first inquiry of the court should be into the hours spent by the attorneys — how many hours were spent in what manner by which attorneys. It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought." Lindy Bros. Builders, Inc., 487 F.2d at 167.

  B. Hours Charged

  1. Initial Brief

  Honeywell argues that the 263 hours of attorney time spent preparing ICO's initial fee application is excessive. Specifically, Honeywell objects to the more than 73 hours reviewing time records, 38 hours preparing exhibits, 2.46 hours organizing materials from the fee application and .83 hours to review the fee application after the application was filed. (Def.'s Br. Opp'n at 5-6.) Honeywell further argues that the 150 hours expended in the preparation of Plaintiff's Reply Brief is excessive and should not have taken more than 40 hours to prepare. (Def.'s Br. Opp'n at 10.) Honeywell further argues that the more than 33 hours spent preparing for oral argument is excessive and contends that a total of 16 hours for preparation would have been sufficient. (Def.'s Br. Opp'n at 5.) Honeywell further argues that the attendance of Mr. Terris, Ms. Millian and Mr. Thomas at oral argument was excessive.*fn3

  ICO argues that most of the time spent preparing the initial brief was done by Carolyn Smith Pravlik, a senior attorney in the firm. ICO argues that Ms. Pravlik is the most experienced attorney in preparing fee applications. ICO further argues that Ms. Pravlik was the principal lawyer in the early stages of the litigation and therefore most familiar with the work of Plaintiff's counsel. ICO further argues ...


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