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Peter Hilburn v. State of New Jersey Department of

September 4, 2012


The opinion of the court was delivered by: William J. Martini, U.S.D.J.


This matter comes before the Court on Plaintiff Peter Hilburn's application for an award of fees and costs pursuant to 42 U.S.C. § 1988. Plaintiff filed this lawsuit on December 21, 2007, alleging various causes of action against numerous defendants all relating to the circumstances of his termination from his employment with the New Jersey Department of Corrections. The matter proceeded to trial, where Plaintiff was represented by Karen DeSoto and Brian Curley. Brian Curley's wife, Karen Kahn Curley, an attorney, assisted Mr. Curley during the litigation. Mr. Curley also received additional assistance from an associate attorney he hires on a per diem basis. On April 4, 2012, a jury returned a verdict against Defendant Alfaro Ortiz on Plaintiff's claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2 (the "NJCRA"), for violation of his First Amendment Rights. The jury awarded Plaintiff $659,715.00 in compensatory damages and an additional $50,000 in punitive damages. On May 7, 2012, Plaintiff filed the instant motion,*fn1 and the Court heard oral argument on it and other post-trial motions on July 5, 2012. The Court thereafter ordered further briefing, and the parties completed their briefing on August 13, 2012.

The Court has reviewed Plaintiff's entire fee application line-by-line. For the reasons discussed below, the Court will GRANT Plaintiff's motion for fees and costs, and will award Plaintiff a total of $437,393.97.

I.Legal Analysis

42 U.S.C. § 1988 provides that a prevailing party in certain civil rights actions, including actions under Section 1983, may recover a reasonable attorney's fee as part of the costs. See also Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1671 (2010). "[A] reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritous civil rights case." Perdue, 130 S. Ct. at 1672 (quotation omitted). The preferred method for calculating attorney's fees under Section 1988 is the lodestar method, which is a determination of the appropriate billing rate for the party's attorneys and the number of hours those attorneys reasonably spent working on the case. Interfaith Community Organization v. Honeywell Intern., Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005). The lodestar method "yields a fee that is presumptively sufficient to achieve this objective." Perdue, 130 S. Ct. at 1672.

"A party seeking attorney fees bears the ultimate burden of showing that its requested hourly rates and the hours it claims are reasonable" and must submit evidence to support its arguments. Interfaith Community, 426 F.3d at 703 n.5. An opposing party must object with sufficient specificity to any request for fees. Id. Once the opposing party has objected, the party requesting fees must demonstrate to the satisfaction of the court that its fee request is reasonable. Id. "In reviewing a fee application, a district court must conduct 'a thorough and searching analysis.'" Id. (quoting Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001)).

Defendant does not dispute that Plaintiff is entitled to some award of fees. Instead, Defendant raises a number of specific objections grouped into general categories and listed in exhibits attached to the August 13, 2012 Certification of Jane S. Kelsey, counsel for Defendant. The Court will address these objections in turn and will refer to the corresponding exhibits throughout this opinion.

A. Mr. Curley's Billing Rate

Defendant objects to the $450 per hour billing rate charged by Mr. Curley, claiming that it should be lowered to $300 per hour or, at most, $385 per hour. The Court finds that a reasonable rate for Mr. Curley's services on this matter is $425 per hour.

Typically, courts calculate a reasonable hourly rate according to the prevailing market rates in the relevant community, see Loughner v. University of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001), which in this case is Northern New Jersey. Courts start with the attorney's usual billing rate, but this number is not dispositive. Id. Instead, courts must also look at the experience and skill of the attorney and compare his or her rate to the rates prevailing in the community for similar services by similarly skilled and experienced attorneys. Id.

Mr. Curley is a New Jersey Supreme Court certified Civil Trial Attorney who has been practicing law since 1994. He has years of civil trial experience and has been recognized by legal publications for his litigation expertise. He holds a juris doctor degree from Widener University School of Law and a master of law degree in trial advocacy from Temple University School of law. He certifies that as of January 1, 2012, he raised his billing rate to $450 per hour. Plaintiff has submitted certifications from two of Mr. Curley's colleagues who specialize in employment litigation and who practice in Northern New Jersey to support the reasonableness of Mr. Curley's requested rate. One colleague, Jon W. Green, has been practicing law since 1980, has been focusing on employment litigation since 1988, and currently bills clients at a rate of $475 per hour. The other, Ty Hyderally, has been practicing law for approximately the same amount of time as Mr. Curley but appears to specialize in employment litigation. He is currently the President of the National Employment Law Association -- NJ, a statewide organization of attorneys who focus on employment law. Mr. Hyderally has litigated a number of high-profile employment law cases and speaks at employment law conference across the nation and internationally. His current billing rate is $450 per hour. Both Mr. Hyderally and Mr. Green certify that they believe Mr. Curley's $450 per hour billing rate is reasonable and in line with market compensation. In further support of the reasonableness of his billing rate, Mr. Curley notes that in 2011, a state court judge in New Jersey Superior Court approved his then billing rate of $400 per hour after a trial in a similar retaliation case.

Defendant bases his objection to Mr. Curley's billing rate on two grounds: first, Ms. DeSoto's lower billing rate of $300 per hour; and second, the fact that Mr. Curley's representation agreement with Plaintiff, signed in October of 2009, lists his billing rate as $385 per hour. The fact that Ms. DeSoto's billing rate is lower than Mr. Curley's is not dispositive, but it does tend to show that attorneys with similar experience to Mr. Curley*fn2 and who work in the same market may bill at rates below the $450 per hour rate that Mr. Curley requests. And the fact that Mr. Curley may have originally agreed to charge his client a lower rate is similarly not dispositive, as in cases where counsel is compensated under Section 1988, the award is usually based on the billing rates current at the end of the case. See Perdue, 130 S. Ct. at 1675.

On review of all of the evidence submitted by the parties, the Court finds that a reasonable billing rate for Mr. Curley's work in this matter is $425 per hour.

As the Court noted, Plaintiff bears the burden of establishing the reasonableness of his counsel's billing rates. Here, the evidence suggests that individuals with more experience and expertise in the area of employment litigation who practice in New Jersey charge fees of $450 and $475 per hour, and that some individuals with experience similar to Mr. Curley, or slightly less, charge as a little as $300 per hour. While Mr. Curley's experience and skill as a trial litigator entitle him to a rate on the higher end of this range, he has not shown that he is entitled to the $450 fee that recognized ...

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