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Ernest M. D'orazio, Iii v. Washington Township

December 21, 2011


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS , Senior District Judge:

This matter comes before the Court on the parties' objections to Magistrate Judge Williams's Report and Recommendation (Dkt. No. 142) regarding Plaintiff's Motion for Attorneys' Fees and Costs. *fn1 (Dkt. No. 123)


Plaintiff, Ernest D'Orazio, III, brought this suit against Defendants Washington Township, Paul Moriarty, the former mayor of Washington Township, Rafael Muniz, then chief of the Washington Township Police Department, Stephen Rolando, Jason Player, Richard Sumek and Dennis Sims. *fn2 ( See Opinion 2, Oct. 7, 2010, Dkt. No. 105) Plaintiff's suit arises out of his failure to be promoted from Special Law Enforcement Officer ("SLEO") to a full-time law enforcement officer, the investigation and his termination from the Washington Township Police Department. ( Id. at 1-2) Plaintiff claims that Defendants' actions were discriminatory and in violation of his civil rights and, to that end, asserted claims under 42 U.S.C. § 1983 for violation of his First Amendment rights as well as claims for civil conspiracy. ( Id. at 2)

Defendants filed a Motion for Summary Judgment, which this Court granted in part and denied in part. ( See Opinion & Order, Oct. 7, 2010, Dkt. Nos. 105 & 106) As a result, eight out of the twelve claims in the First Amended Complaint were dismissed along with Defendants Washington Township, Paul Moriarty and Dennis Sims. ( See Order ¶ 1, Dkt. No. 106) Additionally, of the remaining four claims, summary judgment was granted in part to the extent that those claims were not related to the investigation of Plainitff and his dismissal from the Washington Township Police Department. ( See Order ¶ 2)

This Court found that although Plaintiff sought "back pay, front pay and/or reinstatement" in his First Amended Complaint, "Plaintiff has asserted no basis upon which he could be reinstated as an SLEO or would be due front pay." ( See Opinion at 20-21 n.9) Moreover, the "maximum amount of compensatory damages available to Plaintiff is $270 in back pay." ( Id. Thereafter, Plaintiff sought reconsideration of this Court's finding that the wage loss claim was limited to $270; however, this Court denied the motion. ( See Order ¶¶ 1 & 5, Nov. 15, 2010, Dkt. No. 112)

Prior to the commencement of trial, Defendants made an Offer of Judgment to Plaintiff in the amount of $75,000, which Plaintiff accepted. ( See Notice of Acceptance with Offer of Judgment, Dkt. No. 118) On March 22, 2011, this Court entered an Order of Judgment in which Defendants were to pay Plaintiff $75,000 in accordance with Defendants' Rule 68 Offer of Judgment by April 1, 2011 or judgment would be entered in favor of Plaintiff. ( See Order of Judgment, Mar. 22, 2011, Dkt. No. 121) The Order further indicated that "Plaintiff is entitled to an award of reasonable attorneys' fees and costs to be determined by this Court." ( See id.

On October 18, 2011, Judge Williams issued a Report and Recommendation on Plaintiff's Motion for Attorneys' Fees and Costs. ( See Report & Recommendation, Oct. 18, 2011, Dkt. No. 142) Judge Williams awarded Plaintiff a total of $228,607.20. The parties have objected to many of Judge Williams's findings.


This Court reviews the Magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3). "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where no objection has been made, this Court is bound by the clearly erroneous standard. See N.L.R.B. v. Frazier , 966 F.2d 812, 816 (3d Cir. 1992).


"In any action . . . to enforce a provision of section[]. . . 1983 . . . of [Title 42]. . . the court in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. Upon determination that a plaintiff is a prevailing party and is entitled to an award of attorneys' fees, the Court must then decide upon a reasonable award of fees and costs.

"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart , 461 U.S. 424, 433 (1983). This approach is otherwise referred to as the lodestar and "is strongly presumed to yield a reasonable fee." Washington v. Philadelphia Cnty. Ct. Of Common Pleas , 89 F.3d 1031, 1035 (3d Cir. 1996). Once the lodestar is determined, the court may, in its discretion, adjust the lodestar for many reasons, one important reason being the results obtained by the prevailing party. Hensley , 461 U.S. at 434; McKenna v. City of Philadelphia , 582 F.3d 447, 455-59 (3d Cir. 2009).

The burden is on the fee-applicant to establish a prima facie case. Hensley , 461 U.S. at 437. If a prima facie case is established, the opposing party bears the burden of presenting contrary evidence. See Lanni v. New Jersey , 259 F.3d 146, 149 (3d Cir. 2001).

As an initial matter, Plaintiff is a prevailing party for the purposes of § 1988. Plaintiff settled in the amount of $75,000, which cannot be fairly characterized as a de minimis success. Therefore, Plaintiff is entitled to a reasonable attorneys' fee.

With regard to the amount of a reasonable attorneys' fee, the Court must first establish a reasonable hourly rate and multiply that rate by the hours reasonably expended on the litigation. While the majority of the legal reasoning contained in the Report and Recommendation is sound, the Court disagrees with some of the Magistrate's conclusions.


"The general rule is that a reasonable hourly 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)). While the entire District of New Jersey has been found to be the relevant legal community in some cases, see, e.g., Public Interest Research Grp. of New Jersey, Inc. v. Windall , 51 F.3d 1179, 1185-1188 (3d Cir. 1995), other cases have established southern New Jersey to be the relevant legal community. See, e.g., Employers Ins. Co. of Wausau v. Harleysville Ins. Co. , 2008 WL 5046838, *4 (D.N.J. 2008). In this case, the Court agrees with Judge Williams that the relevant legal market is southern New Jersey. ( See Report & Recommendation 5-6, Dkt. No. 142)

Although it is by no means conclusive, the fee applicant's customary billing rate is an appropriate place to start in determining the prevailing market rate. See A.V. v. Burlington Twp. Bd. of Educ. , 2008 WL 4126254, *5 (D.N.J. 2008). Plaintiff originally sought an hourly rate of $405 for Jacqueline M. Vigilante, Esquire and $400 for Ralph E. Lamar, Esquire. Plaintiff contended that these attorneys customarily charged these hourly billing rates.

In response, Defendants noted that Ms. Vigilante actually billed these Defendants for administrative work at the hourly rate of $150 and that rate should be deemed Ms. Vigilante's customary rate. Moreover, Defendants argued that a reasonable hourly rate in the southern New Jersey market was in the range of $125-250. Both parties submitted numerous affidavits from practicing attorneys to buttress their positions.

In the Report and Recommendation, Magistrate Williams found that Plaintiff failed to carry his burden for an hourly rate of $405 and $400 and awarded a fee at the hourly rate of $350 for both attorneys. *fn3 ( See Report and Recommendation at 10, Oct. 18, 2011, Dkt. No. 142) Magistrate Williams noted that two of Plaintiff's affiants, Carmen Matos, Esquire and Lorrie McKinley, Esquire, practiced in the Philadelphia area, not southern New Jersey. These affidavits submitted on the reasonableness of a fee in the Philadelphia market is not particularly relevant to the reasonableness of a fee in southern New Jersey.

This Court is faced with a daunting task. Determining a reasonable hourly rate for a plaintiffs' civil rights and employment litigation attorney of similar skill and experience to Plaintiffs' attorneys in southern New Jersey retained on a contingent basis is difficult. There are too many variables to find an exact match. The matter is all the more difficult considering most comparable work is done on a contingent basis. To assign a court the task of determining a reasonable hourly fee for a legal market that tends to avoid charging clients at hourly rates really asks the Court to set the market with little guidance. Indeed, prior cases are not even particularly instructive as fees fluctuate to keep pace with inflation and changing market conditions. Affidavits of practicing attorneys are often also unhelpful because plaintiff attorneys often do not charge hourly rates, but also have self-interest in setting judicially appointed rates as high as possible. Alas, the lodestar is the framework for assigning an attorney's fee in this Circuit and this Court is bound to employ that analysis.

Predictably, the parties here have submitted conflicting affidavits on the reasonableness of attorneys' hourly rates. *fn4 On the one hand, Plaintiff submits affidavits from Alan Schorr, Esquire and Kevin Costello, Esquire indicating that they bill $400 and $450 respectively for similar work. However, both attorneys indicate that the legal market bears lower fees: "I am aware that most employment litigators practicing at my level are billing at rates of $350 and higher." *fn5 (Schorr Aff. ¶ 8, Dkt. No. 123-7; Costello Aff. ¶ 8, Dkt. No. 123-7) *fn6 Furthermore, the affidavits do not indicate what type of work fetches fees of $400 and $450. Presumably, the only apt comparison, as Plaintiff strenuously argues, are plaintiff side civil rights and employment cases taken on a contingent basis. However, the affidavits do not indicate the allegedly comparable fee is charged for that type of work.

In response, Defendants have submitted numerous affidavits from attorneys practicing in southern New Jersey that a reasonable attorneys' fee would be, at most, $250 an hour. For example, Arthur Murray, Esquire, seven years the junior of Ms. Vigilante, charges $250 per hour for plaintiff side employment and civil rights litigation. ( See Murray Aff., Dkt. No. 133-4) Michael Barker, Esquire, twelve years Ms. Vigilante's senior, charges between $135 and $250 for employment discrimination litigation. ( See Barker Aff., Dkt. No. 133-5) Although Defendants submitted several other affidavits, it is not clear whether those attorneys' hourly rates were for plaintiff or defense side litigation. *fn7 ( See generally Affs., Dkt. Nos. 133-1 to 133-3)

Although Plaintiff arguably has set forth evidence to establish a prima facie case, this Court credits Defendants' submissions, which indicate that the maximum reasonable hourly rate in southern New Jersey for work comparable to Plaintiff's attorneys is $250. The Court will, therefore, award Ms. Vigilante and Mr. Lamar each an hourly rate of $250.

Defendants have not presented evidence to contradict the hourly rates for Ms. Vigilante's associate or for Ms. Vigilante's paralegal. Therefore, this Court affirms the Report and Recommendation finding that the rates of $150 for the associate and $85 for the paralegal were reasonable. ( See Report & Recommendation at 6 n.6, Oct. 18, 2011, Dkt. No. 142)


The next step in the lodestar calculation is to determine the amount of hours reasonably expended on the litigation. In calculating the hours reasonably expended, the court should review the time spent, determine its reasonableness and exclude any hours that are "excessive, redundant or unnecessary." Maldonado v. Houstoun , 256 F.3d 181, 185 (3d Cir. 2001) (citing Windall , 51 F.3d at 1188). The applicant retains the burden to justify the fee and courts have an affirmative function in the fee fixing process. See L.J. v. Audubon Bd. Of Educ. , 2009 WL 995458, *13 (D.N.J. 2009).

Magistrate Williams concisely organized Plaintiff's attorneys' total permissible billable hours. ( See Report & Recommendation at 24, Oct. 18, 2011, Dkt. No. 142) While this Court agrees with all of Magistrate Williams's deductions, ...

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