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Rosario v. Amalgamated Ladies Garment Cutters Union

November 30, 1984

TOMAS ROSARIO, OVIDIO VEGA AND RAY CABEL, PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,
v.
AMALGAMATED LADIES" GARMENT CUTTERS" UNION, LOCAL 10, I.L.G.W.U., DEFENDANT-APPELLANT, CROSS-APPELLEE, AND ABE DOLGEN, INDIVIDUALLY AND AS MANAGER OF AMALGAMATED LADIES" GARMENT CUTTERS" UNION, LOCAL 10, I.L.G.W.U., DEFENDANT; TOMAS ROSARIO, OVIDIO VEGA AND RAY CABEL, PLAINTIFFS-APPELLEES, CROSS-APPELLANTS, V. AMALGAMATED LADIES" GARMENT CUTTERS" UNION, LOCAL 10, I.L.G.W.U., DEFENDANT-APPELLANT, CROSS-APPELLEE, ANDINTERNATIONAL LADIES" GARMENT WORKERS" UNION, AFL-CIO, DEFENDANT



Appeal by labor union and cross-appeal by plaintiff union members from an order of the Southern District of New York, Vincent L. Broderick, Judge, awarding plaintiffs attorney's fees and expenses totalling $92,849.50 in connection with their prosecution of claims against the union based on deprivation of their rights under § 101 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411 (1982). Modified and affirmed as modified.

Author: Mansfield

Before: MANSFIELD, KEARSE and CARDAMONE, Circuit Judges.

MANSFIELD, Circuit Judge:

The principal issue on this appeal is the reasonableness of an attorney's fee award to union members who were successful in the prosecution of some claims based on denial of their rights under § 101 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 (1982), but unsuccessful in the prosecution of others.

Local 10 appeals from a judgment of the Southern District of New York, Vincent L. Broderick, Judge, awarding plaintiffs attorney's fees and expenses totalling $92,849.50 against Amalgamated Ladies' Garment Cutters' Union, Local 10, International Ladies' Garment Workers' Union (ILGWU), for services in their prosecution of two actions under § 101 against it and its manager, Abe Dolgen. Plaintiffs cross-appeal from Judge Broderick's reduction of the more than $265,000 in attorney's fees sought by them. We reduce the award to $90,976.50 and affirm the district court's judgment as so modified.

The background of this litigation, now before us for the third time, is set forth in an opinion of Chief Judge Constance Baker Motley dated November 14, 1977, reported at 441 F. Supp. 657 (S.D.N.Y.), and in our earlier opinion at 605 F.2d 1228 (2d Cir. 1979). Briefly, the plaintiffs, three dissident members of Local 10, brought two actions against it under § 102 of the LMRDA, 29 U.S.C. § 412, which were later consolidated, seeking nullification of certain union disciplinary proceedings and damages for violations of plaintiffs' procedural and substantive rights under LMRDA § 101, 29 U.S.C. § 411. Dolgen was joined as a defendant in the first suit and pendent state law claims were also asserted against him for false arrest and malicious prosecution.*fn1

The actions arose out of an altercation between appellants and Dolgen on January 29, 1975, in his Local 10 office and a series of three ensuing disciplinary proceedings against appellants by the Executive Board and Trial Committee of Local 10 and the General Executive Board of the ILGWU. Judge Motley preliminarily enjoined Local 10 from enforcing disciplinary sanctions it had imposed upon appellants. On November 9, 1976, we affirmed that decision without opinion. On March 23, 1977, a Special Appeal Committee of the General Executive Board of the ILGWU held a fourth disciplinary hearing, intended as a "hearing de novo," which was boycotted by plaintiffs; the Committee found plaintiffs guilty of misconduct and adopted the sanctions previously imposed by the Trial Committee of Local 10. Plaintiffs then filed their second suit, which was eventually consolidated with their first action.

On November 14, 1977, Judge Motley granted a partial summary judgment in favor of the plaintiffs, ruling that in violation of § 101 of LMRDA they had been denied a fair hearing at the three Local 10 trials, that they had wrongfully been barred from attending union meetings and that they were entitled to tape-record their disciplinary trials and to be retried before a different union tribunal from that which had found them guilty. After discovery, the damage claims were tried in April 1978 before a jury, which awarded compensatory and punitive damages against Local 10 filed a trial brief seeking reconsideration and a vacatur of the court's November 14, 1977, grant of summary declaratory judgment with respect to plaintiffs' rights under § 101 of LMRDA, which was denied on the first day of trial.

Trial lasted 15 days, resulting in verdicts awarding $3,000 compensatory damages and $30,000 punitive damages against Local 10 for violation of plaintiffs' LMRDA rights, $1,500 compensatory damages and $7,500 punitive damages against Dolgen on plaintiffs' LMRDA claims and $6,000 compensatory and $5,000 punitive damages against Dolgen on plaintiffs' state law pendent claims for false arrest and malicious prosecution. Following the trial, the district court granted plaintiffs application for attorney's fees and expenses based on their LMRDA claims, subject to a later determination of the amount.

Upon appeal we affirmed Judge Motley's rulings with respect to the plaintiffs' rights to tape-record union disciplinary proceedings against them and to retrial of the disciplinary proceedings before a different union tribunal. However, we reversed the district court's decision to the extent that it prohibited the union from imposing the disciplinary sanction of suspension, for a specified period, of a member's right to attend union meetings. Accordingly, we set aside the LMRDA-based damage awards against Local 10 and Dolgen, which had been grounded in part on the alleged deprivation of their right to attend Local 10 meetings. We affirmed the district court's ruling that plaintiffs would be entitled to "a reasonable attorney's fee for vindication of their rights under the LMRDA," 605 F.2d at 1251. On November 20, 1979, the Circuit denied plaintiffs' petition for rehearing and on April 28, 1980, the Supreme Court denied plaintiffs' petition for certiorari. 446 U.S. 919, 100 S. Ct. 1853, 64 L. Ed. 2d 273 (1980).

Upon remand Chief Judge Motley recused herself and the case was assigned to Judge Broderick for determination of the amount of the attorney's fees to be awarded to plaintiffs. On July 28, 1981, Burton H. Hall, Esq., who had represented plaintiffs throughout the litigation, filed a petition setting forth his qualifications, a summary describing the major services rendered by him in the cases over the five-year period from March 1975 to March 1980, the approximate hours devoted chronologically to these services (totalling 1,676 hours), a list of briefs, opinions, orders and other papers filed in connection with the actions, discovery proceedings, motions, trial and appeals, and a schedule of expenses totalling $2,822.59. The petition sought an award of $251,400 for 1,676 hours at a rate of $150 per hour.

When Hall's deposition was taken, it revealed that he, a sole practitioner, had not kept any daily time records and that the description of services and allocation of hours submitted by him represented a reconstruction by his partner and a law school student, neither of whom had worked on the cases, based on their examination of his annual appointment calendars and extensive files. On or before February 26, 1982, the parties filed with the court their submissions consisting of affidavits of counsel and others, exhibits, memoranda and Hall's deposition transcript. Hall revised his estimate of hours spent to 1,653 hours for the cases plus 148 hours spent of the fee application itself and sought a total fee of $265,050. On April 26, 1984, Judge Broderick heard oral argument and rendered an oral opinion awarding $81,887 for services on the case, $9,570 for preparation and litigation of the fee application and $2,822.50 for expenses. The award totalled $94,279.50. Because of an error in the number of hours spent on the fee application, corrected in a stipulation entered by the parties, the amount of the award was reduced and judgment was entered on May 17, 1984, for $92,849.50.

Judge Broderick arrived at the award by reducing the 1,653 hours claimed by 40% to reflect exclusion of time spent on state law claims and on "federal claims which by their very nature did not or would not have conferred a benefit upon other members of the union." The resulting 991 hours were then reduced by 30% to 694 hours for Hall's failure to maintain time records. The court then applied a $100 hourly rate for services through 1977 and a $130 rate for services from 1978 to 1980, resulting in a total of $81,887 for time spent on the cases. The 148 hours spent on Hall's fee application were reduced by 50% to 74 hours to reflect failure to keep contemporaneous time records. Multipliers of $150 per hour for Hall's time and $70 per hour for ...


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