United States District Court, D. New Jersey, Camden Vicinage
MEMORANDUM OPINION AND ORDER [DOC. NOS. 67,
SCHNEIDER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's “Motion
for Attorney's Fees, Costs, [Prejudgment Interest] and
Negative Tax Consequences” [Doc. No. 67]. Also before
the Court is defendant's Motion to Strike the Amended
Reply Affidavit of Plaintiff's Counsel” [Doc. No.
81]. The Court received the parties' extensive opposition
and supplemental submissions [Doc. Nos. 68, 75, 76, 78, 83,
84, 88, 89, 90, 92, 107 and 108] and held oral argument. For
the reasons to be discussed, plaintiff's motion is
granted in part and denied in part and defendant's motion
is denied. The Court grants a statutory attorney fee of $127,
215.00 (lodestar) plus an enhancement of 25% or $31, 803.75,
for a total attorney fee award of $159, 018.75. The Court
also awards costs in the amount of $1, 823.80, prejudgment
interest in the amount of $1, 207.64, and negative tax
consequences in an amount to be determined. The enforcement
of this award is stayed at least until the Third Circuit
rules on defendant's pending appeal.
parties are familiar with the background of this matter so
there is no need to set out a detailed summary. The Court
incorporates by reference the background set forth in its
February 28, 2018 Opinion denying defendant's motion for
a new trial or in the alternative amending the judgment. 2018
WL 1087494 (D.N.J. Feb. 28, 2018) . Briefly, plaintiff
alleged he was terminated from his job as the Manager of a
General Nutrition store on account of his age. On October 26,
2017, the jury returned a verdict in plaintiff's favor
finding defendant violated the New Jersey Law Against
Discrimination ("NJLAD"). Plaintiff was awarded
$123, 926 in back pay, $75, 000 in emotional distress damages
and $60, 000 in front pay damages, for a total damage award
of $258, 926. Judgment in this amount was entered on October
30, 2017. [Doc. No. 66]. On February 28, 2018,
defendant's motion for a new trial or to amend the
judgment was denied. [Doc. Nos. 85, 86] . Defendant appealed
the decision to the Third Circuit where the appeal is
seeks an award of attorney's fees, costs and prejudgment
interest. Plaintiff also seeks an award for the negative tax
consequences resulting from the judgment. Plaintiff requests
a lodestar of $130, 500 in fees, plus an enhancement of 50%.
Plaintiff also requests $1, 823.90 in costs, $2, 481.42 in
prejudgment interest and $69, 443.00 for negative tax
consequences. Defendant asserts various objections to
plaintiff's requests which will be discussed herein.
present purposes it is important to discuss how
plaintiff's counsel proposes to compute his final fee.
Plaintiff's retainer agreement provides he is to be paid
a contingency fee of 45% of the net recovery. At first
plaintiff contended he was entitled to the full amount of his
Court awarded fee plus his contingency fee. In other words, a
dual fee recovery. Plaintiff proposed to pay a 1/3 referral
fee of his 45% net recovery to his referring attorney. In
addition, plaintiff proposed to pay a 1/3 referral fee of the
Court's fee award to the referring
attorney. Defendant did not object to counsel's
proposed dual recovery but argued this should be taken into
account when determining whether a lodestar enhancement
should be awarded and the percentage.
the Court questioned counsel's proposed dual recovery and
asked for supplemental briefs on the issue, counsel submitted
a new proposal to calculate his attorney fee. See
Plaintiff's July 5, 2018 LB. Counsel now proposes that he
is entitled to 45% of the jury award plus 45% of the attorney
fee award. According to counsel, plaintiff will not only
receive 55% of the jury award, but also "fifty-five
cents (550) on every dollar awarded, including any award of
attorney's fees and costs." Id. at
Defendant opposes plaintiff's new computation as
excessive. See July 17, 2018 LB, Doc. No. 108.
parties do not dispute that a party that prevails on a NJLAD
claim is entitled to a reasonable attorney's fee award.
N.J.S.A. 10:5-27.1. There also is no dispute that plaintiff
is a prevailing party since plaintiff succeeded on a
"significant issue in litigation which achieve[d] some
of the benefit the parties sought in bringing suit."
P.N. v. Clementon Board of Education, 442 F.3d 848,
855 (3d Cir. 2006)(citation and quotation omitted). In
addition, the parties do not dispute the starting point in
the attorney's fee analysis is to determine the lodestar
amount. Lanni v. New Jersey, 259 F.3d 146, 149 (3d
Cir 2001) . The lodestar is computed by multiplying the
reasonable hourly rate by the reasonable number of hours
expended. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) . The lodestar is presumptively reasonable but may
require subsequent adjustment. United Automobile Workers
Local 259 Social Security Dept. v. Metro Auto Center,
501 F.3d 283, 290 (3d Cir. 2007).
asks for an hourly rate of $450. The Court finds this rate is
reasonable and appropriate in the case. A reasonable hourly
rate is calculated according to the prevailing market rate in
the community. S.D. v. Manville Bd. of Educ, 989
F.Supp. 649, 656 (D.N.J. 1998). "This burden is normally
addressed by submitting the affidavits of other attorneys in
the relevant legal community, attesting to the range of
prevailing rates charged by attorneys with similar skill and
experience." Id. A court should assess the
skill and experience of the prevailing party's attorneys
and compare their rates to the rates prevailing in the
community for similar services by lawyers of reasonably
comparable skill, experience, and reputation. Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) . The
party seeking to recover attorney's fees has the initial
burden of "producing sufficient evidence of what
constitutes a reasonable market rate for the essential
character and complexity of the legal services rendered in
order to make out a prima facie case." Lanni,
259 F.3d at 149.
counsel's certification, affidavits and representations
reveal he is an experienced and skilled employment law
litigator. Richard M. Pescatore, Esquire, has been admitted
to the Bar for over 30 years and he has been a Certified
Trial Attorney since the mid-1990's (Certification of
Counsel ("Cert.") ¶4, Doc. No. 67-1). Counsel
has handled hundreds of employment law cases. Amended
Affidavit ("Am. Aff.") ¶6, Doc. No. 78.
Further, counsel has submitted the affidavits of three (3)
experienced South Jersey employment law litigators who attest
to the fact $450 per hour is a reasonable hourly rate in the
South Jersey legal community for an attorney of Mr.
Pescatore's skill and experience. See Exhibit B
to Plaintiff's Motion, Doc. Nos. 67-5, 68. Based on
plaintiff's submissions, the Court will award
plaintiff's counsel an hourly rate of $450.00 per hour.
argues counsel's hourly fee should be rejected because
counsel did not provide information concerning his skill,
experience, reputation and employment experience.
Defendant's Opposition Brief ("Opp.") at 6,
Doc. No. 75. The Court disagrees. As noted, plaintiff's
counsel's certification and affidavits attest to this
information. Notably, defendant does not otherwise challenge
plaintiff's $450.00 per hour fee. Accordingly, the Court
rules that plaintiff's $450.00 per hour fee for the work
done on this case is reasonable and appropriate.
Reasonableness of Fees
parties do not dispute plaintiff is entitled to a reasonable
attorney's fee as a prevailing party in the case. As
noted, the lodestar provides the starting point for
determining a reasonable attorney's fee. Lanni,
259 F.3d at 149. The lodestar is calculated by multiplying a
reasonable hourly rate by the number of hours the moving
counsel reasonably billed for the litigation. Id. A
district court may discount any hours that it deems
unreasonable, including those considered to be
"excessive, redundant, or otherwise unnecessary[.]"
See Hensley, 461 U.S. at 433. Although the Court has
substantial discretion to determine what constitutes a
reasonable billing rate and reasonable hours, once the
lodestar is determined it represents the presumptive
reasonable fee. Lanni, 259 F.3d at 149.
the lodestar amount is calculated a court has discretion to
adjust the fee up or down based on a number of different
factors. Id. at 151; Pub. Interest Research
Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d
Cir. 1995). These factors include, but are not limited to:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill required to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the "undesirability" of the case;
(11) the nature and length of the professional relationship
of the clients; and (12) awards in similar cases.
Hensley, 461 at 429-30 n.3.
plaintiff's fee petition must be specific enough to allow
the court to determine if the hours claimed are unreasonable
for the work performed. Washington v. Phila. County Ct.
of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996) .
Nevertheless, exacting detail is not necessary: "a fee
petition should include some fairly definite information as
to the hours devoted to various general activities,
e.g., pretrial discovery, settlement
negotiations.... However, 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." Id. at 1037-38 (citation and
guotation omitted) . The time to prepare and present an
application for fees is recoverable. Maldonado v.
Houstoun, 256 F.3d 181, 187 (3d Cir. 2001) . The
lodestar and Hensley reduction analysis applies to
the claimed fees to prepare a fee petition. Id. at
submitted two sets of time sheets documenting his time. The
first set is attached to plaintiff's motion (Doc. No. 67,
Exhibit A) and includes time from 3/17/14 to 11/6/17. The
total requested lodestar is $111, 150.00. The second set of
time sheets is attached to plaintiff s supplemental affidavit
(Doc. No. 88, Exhibit A) and includes time from 11/8/17 to
3/13/18. The total requested lodestar is $19, 350.
challenges the reasonableness of plaintiff's fees in
several general respects. Defendant's arguments are
rejected. To the extent defendant argues this was a
straightforward simple case, the Court disagrees. Although
plaintiff and defense counsel have likely litigated more
complex cases, the case was not routine. Discovery was
contentious and the Court had to address and resolve
challenging discovery disputes. In addition, plaintiff
successfully opposed defendant's motion for summary
judgment and participated in a three-day trial. To his
credit, plaintiff's counsel (as did defense counsel)
zealously represented his client. Mr. Andujar deserved
nothing less. Plaintiff's counsel would have been
shirking his professional responsibilities if he took
support of his fee application Mr. Pescatore submitted his
detailed timesheets. After reviewing counsel's time
entries in detail, the Court finds counsel's time was
well spent, reasonable and appropriate. Counsel will not be
penalized because he runs a small office and does not have
the benefit of a large staff of young attorneys. Under the
circumstances, counsel's "hands on" approach to
the litigation was reasonable, necessary and appropriate.
not clear, defendant seems to argue the sixteen (16) hours
plaintiff's counsel spent to prepare for trial was
excessive since counsel allegedly only presented
"minimal testimony and evidence." Opp. at 8. This
argument is rejected. The Court finds 16 hours is a
reasonable expenditure of time given that plaintiff's
counsel not only had to prepare his case, but he also had to
prepare to rebut defendant's case. Defendant is fortunate
plaintiff's counsel used his time wisely and only spent
16 hours to prepare for trial.
argues the Court should disallow hours spent on "purely
clerical and administrative entry tasks[.]" Opp. at 9.
The Court agrees. However, defendant does not support, other
than by general arguments, his contention counsel spent time
on clerical and administrative tasks. Defendant argues every
time entry for . 1 should be disallowed. Tr. at 17:10-15.
("[W]e did not parse every single record[.]"). In
addition, defendant argues all time entries for .5 hours or
under "indicate[ ] a routine or ministerial task."
Opp. at 9. Instead of considering defendant's
general objections to plaintiff's time entries, the Court
has individually reviewed defendant's objections and
plaintiff's time entries to determine if they are
appropriate. The Court will not issue a carte
blanche ruling that all time entries less than .5 should
be disallowed. Defendant identified its objections by
striking out what it deemed administrative work. See
Opp., Exhibit D.
all of defendant's objections are off base. It is plain
to the Court that not every time entry of . 5 or lower is
objectionable. For example, it is appropriate to compensate
plaintiff for his initial phone call from his referring
attorney (3/17/14 - .5), receipt of correspondence from
client (3/21/14 - .2) and preparing letters to defendant
(3/25/14 - .3, 4/16/14 - .3) . Many of counsel's .1 and
.2 time entries are for the receipt of correspondence and
communications from the Court. Plaintiff's counsel should
be compensated for this time. This task is not appropriately
done by clerical staff.
plaintiff's request for fees through November 6, 2017,
the Court has thoroughly reviewed defendant's individual
objections to plaintiff's time entries of .5 or less. The
Court did not identify any time entries that are
objectionable. Plaintiff's counsel's "hands
on" approach to the case was appropriate. However, the
Court will deduct the 6.5 hours ($2, 925.00) counsel
estimated it would take to prepare his application for fees.
The actual time counsel spent on counsel's fee
application is included in the time sheets attached to
counsel's supplemental affidavit.
argues the 12 hours counsel spent to oppose defendant's
dispositive motion was excessive. Id. at 10. The
Court disagrees and rules that plaintiff's counsel's
time was well spent. Thus, the Court approves plaintiff's
lodestar application for $108, 225.00 ($111, 150.00 $2,
925.00) in fees through November 6, 2017.
addition to the lodestar through November 6, 2017, plaintiff
also seeks a fee award for the time spent addressing his fee
motion and other work performed from 11/7/17 to 3/13/18. As
already noted, the time spent to prepare a fee petition is
recoverable. So too is the time plaintiff spent to oppose
defendant's post-trial motion. These additional fees are
set forth in Mr. Pescatore's supplemental affidavit.
Counsel requests reimbursement for an additional 43 hours or
a total lodestar of $19, 350. The Court reviewed plaintiff s
time entries and finds that the .2 time entries on 12/8/17
and 12/13/17 should not be reimbursed because the time was
spent on the administrative/clerical task of filing William
Martini's affidavits. Thus, only 42.2 additional hours or
$18, 990.00 in additional fees is awarded.
foregoing reasons the Court finds that the appropriate
lodestar is $108, 225.00 plus $18, 990.00 or $127, 215.00.
The Court also finds the lodestar is reasonable and will not
be increased or decreased based on the Hensley,
Calculation of Plaintiffs Attorney's Fee
New Jersey law a lawyer's fee must be reasonable. Rule of
Professional Conduct ("RPC") 1.5(a); see also
A.W. by B.W. v. Mount Holly Twp. Bd. of Educ., 453
N.J.Super. 110, 121 (App. Div. 2018)(even when a plaintiff
applies for fee shifting the fee award must be reasonable).
Further, in the first instance counsel's fee or retainer
agreement must be examined to determine how his fee should be
calculated. Starkey v. Estate of Nicolaysen, 340
N.J.Super. 104, 119-20 (App. Div. 2001), aff'd as
modified 172 N.J. 60 (2002) (the purpose of a written
fee agreement "is to memorialize the agreement as to
quantum of the fee"). Here, plaintiff initially proposed
that he receive his 45% contingency fee or $115, 695.99, plus
his Court-awarded lodestar of $127, 215.00. These two amounts
total $242, 910.99 . Under plaintiff's new calculation
plaintiff proposes he receive 45% of the total of the
judgment plus the Court awarded fee. These two amounts total
$386, 141 ($258, 926 plus $127, 215). Counsel's 45% share
of this total is $173, 763.45. If the proposed 50% enhancement
of the Court awarded fee is added to this amount, counsel
would receive approximately $237, 000.00 in fees. Under
counsel's new proposal, the net amount payable to
plaintiff, exclusive of interest and negative tax
consequences, is only approximately $210, 000.
Court rejects counsel's proposed fee calculation as
inconsistent with plaintiff's written fee agreement and
the applicable case law. Plaintiff's fee agreement states
Net recovery is the total recovered on your behalf, exclusive
of attorney fees, minus costs and expenses.... The fee will
be as follows: 45% attorney fees, computed upon net recovery
or $450.00 hourly rate which ever is greater. Law firm shall
be entitled to, as an additional fee notwithstanding the
above, any increase in fees or enhancements allowed by the
Doc. No. 67-8. The agreement states plaintiff is entitled to
45% of the net recovery or the $450.00 hourly rate, whichever
is higher. The net recovery is the total recovered on behalf
of plaintiff, minus costs. The amount recovered on
plaintiff's behalf is the jury verdict, not the jury
verdict plus the Court awarded fees. The agreement,
therefore, provides that counsel's attorney fee is the
higher of the 45% contingency fee on the net jury verdict, or
the Court awarded fee.
Court rejects the argument that when plaintiff's fee
agreement refers to the "total recovered on
[plaintiff's] behalf" it refers to the jury award
plus the Court awarded fee and negative tax consequences.
Counsel drafted the fee agreement. If this is what he
intended it should have been specifically stated. Cohen
v. Radio-Electronics Officers Union, Dist. 3, NMEBA, 146
N.J. 140, 156 (1996) (any ambiguity in a fee agreement will
be construed in favor of the client) . ...