the motion is granted, except with respect to those items as
set forth below.
Plaintiffs are members of the defendant Communications Workers
of America, AFL-CIO, Local 1105 ("Local 1105" or the "Union"),
a labor organization located in New York City. Since 1985,
Local 1105 has been affiliated with the Communications Workers
of America ("CWA") and has been the collective bargaining
representative for approximately 7,200 commercial, public
communications, sales and headquarters employees working for
NYNEX, the New York Telephone Company, and American Telephone
and Telegraph Company.
Facts and Prior Proceedings
On October 12, 1990, Mango filed this action pursuant to §§
101(a) and (b) of the Act to compel Local 1105 to hold a
special meeting of its membership to permit the membership to
decide (a) whether to use the American Arbitration Association
("AAA") in conducting the Union's 1990 election of officers,
and (b) whether each candidate for office should be permitted
to designate a member of the Union's election committee (the
The action arose from the alleged refusal of Local 1105 to call
special work locations meetings of its members upon the receipt
of a petition of approximately a quarter of its members
requesting the Union to determine if the majority of its
members want the Union to (a) engage the services of the AAA as
described above and (b) to include members of good standing,
designated by each candidate running for elective office, to be
equal participants in the Committee.
By Order to Show Cause returnable October 19, 1990, Mango moved
for a preliminary injunction ordering the Union to hold the
meeting sought in the complaint. On October 25, 1990, following
a hearing spread out over several days, the Court indicated
that it would grant injunctive relief. When the Union heard
that the Court was inclined to grant injunctive relief, the
Union stated that it would use the AAA and that it would
consent to the placement on the election committee of an
individual designated by Mango. The Union's commitments having
obviated the need for a special meeting of the membership
concerning the elections, the Court dismissed the motion as
moot. Prior to or during the course of the several days of
hearings the Union agreed to augment the Committee by some one
designated by the Mango slate.
By Order to Show Cause dated November 5, 1990, Mango moved for
a second preliminary injunction. By this second motion, Mango
sought to enjoin the Committee and the AAA from conducting any
further election procedures pending a hearing and determination
by this Court of the names of persons eligible to participate
in the election. Mango's position in the hearing of November 8
was that there were 1,945 names of members in good standing of
Local 1105 that did not appear on the Committee's membership
list and 2,283 names on the Committee's membership list that
were not members in good standing of Local 1105.
On the return date of the motion, Mango learned from the
Committee that it had added approximately 600 names to the
Membership list from the 1,945 names that Mango sought to
include as eligible to receive a ballot from the AAA. The
Committee apparently added the names after a review of the
mailing list for the election and a comparison of the list with
the membership cards in file in the Union's office. That review
took place over several days beginning November 5.
In a hearing of November 9, 1990, the Court ruled from the
bench to deny Mango's motion:
Based upon the representation of the [Union] that the
membership list will be made available and upon the authority
of Crowley, in the absence of irreparable injury prior to the
denial of a ballot to a union member, the motion is denied.
Under the court's reading of Local No. 82, Furniture & Piano
Moving v. Crowley,
matter jurisdiction of Mango's claim at that time.
Mango's initial fee application sought attorney's fees of
$35,890.50, based on a total number of service hours of 184.66.
The fee request is based on the number of hours multiplied by
the rates of the several attorneys working on the matter. In
his reply affidavit, however, counsel for Mango revised this
figure downward to $29,240.50 to reflect the inadvertent
inclusion in the request for attorney's fees of work that had
been done for the same client on other matters, either prior to
the preparation of the first order to show cause, or unrelated
matters during the time of the litigation of this matter.
Thus, the remaining differences between the parties in this fee
application center on two issues: (1) whether the attorney
billings relating to the preparation of the second order to
show cause should be part of an attorney's fee award and (2)
the reasonableness and adequacy of description of the services
In Rosario v. Amalgamated Ladies Garment Cutters' Union,
749 F.2d 1000 (2d Cir. 1984), the Second Circuit held that the
standards for the determination of attorney's fees in
litigation under Title I of the Act are those which the Supreme
Court enunciated for determining fees under 42 U.S.C. § 1988.
Specifically, the Second Circuit adopted the criteria set forth
in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983) for review of fee application under the Act.
Among the Hensley factors determining whether an applicant
receives fees is whether the applicant has prevailed: "Where
the plaintiff has failed to prevail on a claim that is distinct
in all respects from all other claims, the hours spent on his
unsuccessful claim should be excluded in determining the amount
of the fee." Hensley, 461 U.S. at 440, 103 S.Ct. at 1943.
In Rosario, the Second Circuit considered whether a reversal
on appeal of one of the several components of a damages award
in an action brought under Title I of the Act required the
denial of fees spent in litigation of that particular claim.
The court upheld the award of fees for the claim that had been
reversed on the grounds that the litigation of that claim "had
the potential effect of deterring the union from denying
members their due process procedural rights guaranteed by § 101
of the [Act] and of encouraging the union members to enforce
those rights under § 102 [of the Act]."
In the instant case, the filing of the second order to show
cause resulted in the Union's taking at least some of the
actions with regard to the membership lists requested in the
petition. Moreover, the second order to show cause cannot be
said to take up claims distinct from those presented in the
complaint where the issue addressed — the composition of the
balloting list — was part of the petition which formed the
basis for this action when Committee failed to act on it.
Mango's demands made over the course of this litigation
relating to the composition of the Committee, the membership
mailing lists and the appointment of the AAA to oversee the
election all emanate from the issue that is the core of the
complaint: the Union's election procedures. As the subject of
the second order to show cause was within this core, and as
Mango achieved some success in this litigation, he should not
be denied an award of fees relating to the second order to show
Hensley further requires that fees sought be "reasonably
expended." 461 U.S. at 434, 103 S.Ct. at 1939. The Union
challenges the reasonableness of several of those fee requests
that are at this time before the court. In particular, the
Union challenges the reasonableness of spending five hours on
preparation and service of two subpoenas at the rate of $175 an
hour. While Mango in his reply papers has responded that the
requirement of having the clerk of the court execute copies of
the subpoenas accounts for the number of hours spent on such
task, he does not explain
the necessity of having a lawyer perform such functions.
Accordingly, he can recover $100.00 an hour, the lower of the
two attorney rates, for such activities.
The Union also takes issue with the reasonableness of having a
partner spend seven hours on October 12 reviewing and preparing
papers that an associate had already spent 23.5 hours in
preparing. Mango does not address this issue directly in his
reply papers. Accordingly, the amount of hours which Mango may
recover for this activity is 3.5.
Descriptions of Services Rendered
A fee application must be supported by contemporaneous time
records which describe with specificity the work done. New
York State Asso. for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1148 (2d Cir. 1983). In Orshan v. Macchiarola,
629 F. Supp. 1014 (E.D.N.Y. 1986), the court disallowed a claim for
fees for time supported only by such specifications as "prepare
correspondence" and "review correspondence."
The Union challenges several of the entries on such grounds:
(1) the three hours on October 18 attributed to "conference";
(2) the three hours on October 20 relating to "research"; (3)
the hour on October 22 ascribed to "consultations"; and (4)
twenty minutes on October marked as "conference." Such
descriptions clearly do not meet the standards followed in the
Second Circuit as set forth above. Accordingly, those fees will
be reduced by 50%.
For the reasons set forth above, Mango's motion for attorney's
fees is granted except with respect to those items that are
reduced as set forth above. The Parties will submit a judgment.
It is so ordered.
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