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Vukovich v. Haifa

September 5, 2007


The opinion of the court was delivered by: Wolfson, United States District Judge


Presently before the Court is Plaintiff's Motion for Attorneys' Fees pursuant to N.J.S.A. § 56:8-19, the Consumer Fraud Act (CFA). Plaintiff contends that as the prevailing party, he is entitled to attorneys' fees in the amount $226,765.50. Defendants have not filed any opposition to this motion. The Court has considered the moving papers, there being no opposition thereto, and for the reasons that follow the Court holds that Plaintiff may recover $216, 480.00 in attorneys' fees.


The underlying matter stems from a consumer fraud case between Plaintiff, Robert Vukovich, and Defendants, Haifa, Inc. and Haifa New York, Inc. After filing the initial complaint, the parties engaged in lengthy litigation including the filing of three amended complaints, several motions to dismiss and discovery.*fn1 On June 5, 2006, Plaintiff filed a motion for partial summary judgment on his breach of contract claim against Haifa, the consumer fraud claim against Haifa and Corwin, and on Defendants' counterclaim. On June 6, 2006, Defendants, Haifa and Corwin, filed a motion for summary judgment on Plaintiff's fraud and consumer fraud claims. Thereafter, based upon an alleged inability to pay counsel's fees, Defendants' attorney moved to be relieved as counsel. The Court granted Defendants' motion on February 8, 2007.

Subsequently, the Court denied Plaintiff's motion on the breach of contract claim and the consumer fraud claims; however, the Court granted Plaintiff's motion to dismiss Defendants' counterclaim. In addition, the Court denied Defendants' motion on the fraud and consumer fraud claims but granted Corwin's motion on the fraud and consumer fraud claims against him. The remaining claims were scheduled for trial on April 16, 2007. On that day, the Court entered default judgment against Haifa, Inc. and Haifa New York, Inc. for failure to appear or defend before the Court. In addition, the Court found that Plaintiff had met his burden of proof on the remaining claims and awarded Plaintiff $5,069,138.02 in damages plus prejudgment interest of $633,425.96. Specifically, the Court awarded $1,857.322.24 on the first count, a total of $4,817,723.67 on the fourth count for consumer fraud, and $1,258,879.64 on the fifth count. However, counts two and three were dismissed. Thereafter, Plaintiff filed the instant motion for attorneys' fees.


Pursuant to the New Jersey Consumer Fraud Act ("NJCFA"), N.J.Stat. Ann. § 56:8-1 et seq., a court "shall award reasonable attorneys' fees, filing fees and reasonable cost of suit" in any action under this section including those brought by the Attorney General. N.J. Stat. Ann. § 56:8-19. The remedial purpose of the CFA is to provide "an incentive for an attorney to take a case and . . . encourage private parties to bring their own action instead of the Attorney General." Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546, 554 (App. Div. 1993)(quoting Skeer v. EMK Motors, Inc., 187 N.J. Super. 465, 472 (App. Div. 1982)); see also Cox v. Sears Roebuck & Co., 138 N.J. 2, 21 (1994)(stating that "[a]lthough one purpose of the [CFA] is clearly remedial in that it seeks to compensate a victim's loss, the act also punishes the wrongdoer by awarding a victim . . . attorneys' fees"). The amount of reasonable attorneys' fees to be awarded in a consumer fraud case is within the sound discretion of the trial court. Branigan v. Level on the Level, Inc., 326 N.J. Super. 24, 31 (App. Div. 1999). In determining the amount of attorneys' fees to award, a court must look at the level of success achieved in the litigation. Id. Appropriate attorneys' fees under the CFA may be allowed without regard to the amount involved in the underlying dispute. Wisser v. Kaufman Carpet Co., Inc., 188 N.J. Super. 574, 579 (App. Div. 1983); see also N.J.S.A. 56 8-1.

When presented with issues arising under the CFA, federal courts have looked to federal cases providing for attorneys' fees pursuant to the Civil Rights Act, 42 U.S.C.A. § 1988. Silva v. Autos of Amboy, Inc. 267 N.J. Super. at 555. The New Jersey Supreme Court has noted that both § 1988 and the New Jersey Consumer Fraud Act "serve the dual purpose of attracting competent counsel and ensuring justice for all citizens." Id. "The fundamental remedial purpose of the Act dictates that plaintiffs should be able to pursue consumer-fraud actions without experiencing financial hardship." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17-21. Pursuant to § 1988, the Court in its discretion may award the prevailing party reasonable attorney's fees and costs incurred in litigating a claim under § 1983. 42 U.S.C. § 1988; Tresdell v. PHA, 290 F.3d 159, 163 (3d Cir. 2002). The prevailing attorney seeking compensation bears the initial burden of showing the reasonableness of the requested fees by "producing satisfactory evidence--in addition to the attorney's own affidavits--that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 (1984). Once the prevailing attorney satisfies this burden, the opposing party may "challenge, by affidavit or brief with sufficient specificity to give the fee applicant notice, the reasonableness of the requested fee." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

1. Prevailing Parties

A prerequisite to an award of attorneys' fees under is that the party seeking fees must have been "prevailing." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts have broadly defined "prevailing party" for purposes of triggering the application of a fee shifting statute. Public Interest Research Group of N.J. Inc., v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). Generally, a plaintiff may be considered a prevailing party for the purpose of receiving attorneys' fees if he succeeds on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also Metropolitan Pittsburgh Crusade for Voters v. City of Pittsburgh, 964 F.2d 244, 250 (3d Cir. 1992) ("The test . . . to determine prevailing party status is whether plaintiff achieved some of the benefit sought by the party bringing suit.") (citation omitted). Thus, a party need not achieve all of the relief requested nor even ultimately win the case to be eligible for a fee award. J.O. ex rel. C.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002). Indeed, the degree of the party's success goes to the amount of the ultimate award, not to the availability of an award. Id.

In the instant matter, Plaintiff prevailed on three of the five claims presented to this Court. Thus, although Plaintiff did not succeed on all of his claims, he prevailed on a majority of these claims, but most importantly he prevailed on the CFA claim. He is therefore, the prevailing party for the purpose of triggering the fee shifting statute and receiving an award of attorneys' fees.

2. Reasonable Fees

After determining that a plaintiff is a prevailing party eligible to recover attorneys' fees, a court must determine what fee is reasonable. Hensley, 461 U.S. at 433. Reasonable attorneys' fees are comprised of the applicable hourly rate for the legal services and the product of the hours reasonably expended; this amount is known as the lodestar. See id. A reasonable hourly rate is the prevailing market rate for the essential character and complexity of the legal services rendered. Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 131 (3d Cir. 1999); Planned Parenthood of Cent. N.J. v. The Attorney General of the State of N.J., 297 F.3d 253, 265 n.5 (3d Cir. 2002). "A district court may not set attorneys' fees based upon a generalized sense of what is customary or proper, but rather must rely upon the record." Coleman v. Kaye, 87 F.3d 1491, 1510 (3d Cir. 1996); see also Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 2001). Once the reasonable hourly rate has been determined, the Court, in its discretion, calculates the fee award by multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley, 461 U.S. at 433; Planned Parenthood, 297 ...

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