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MYREE v. LOCAL 41

March 31, 1994

SOLOMON MYREE, SR., Plaintiff,
v.
LOCAL 41, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Presently before this Court is plaintiff's motion for attorneys' fees and costs. Following a five-day non-jury trial in February 1991, this Court, by a Decision and Order dated March 6, 1992, held that defendant Local 41 International Brotherhood of Electrical Workers ("defendant") had discriminated against plaintiff Solomon Myree, Sr. ("plaintiff") based on his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 2000e et seq ("Title VII"). Thereafter, a four day non-jury trial was held on March 1 to March 4, 1993 on the issue of damages. Although plaintiff failed to establish backpay damages, and was not entitled to compensatory or punitive damages because this Court determined that the Civil Rights Act of 1991 is not to be retroactively applied, this Court did award plaintiff $ 25,000 in lieu of admission to the union. (Decision and Order, 85-CV-1427, July 9, 1993). Plaintiff now seeks an award of attorneys' fees in the amount of $ 6,550 to James Hagerty, plaintiff's original counsel, and $ 76,037.92 to the firm of Giardino & Schober. In addition, plaintiff also seeks to recover $ 3,720.40 for expert witness fees.

 In support of the motion to recover attorneys' fees and costs, plaintiff has submitted the affidavit of plaintiff's counsel John Giardino, Esq. with exhibits (Giardino Aff.) as well as the reply affidavit of plaintiff's counsel with attached exhibit (Giardino Reply). In opposition to plaintiff's motion, defendant has submitted the affidavit of defendant's counsel Craig Miller, Esq. with attached exhibit (Miller Aff.). Finally, this Court has also considered the arguments regarding attorneys' fees raised by the parties in their respective pre and post trial memoranda.

 Having considered the parties submissions, the overall performance of plaintiff's counsel in this matter as well as the degree of success achieved by plaintiff, this Court will grant plaintiff's motion. However, for reasons stated herein, this Court will limit the award of attorney's fees as follows: (1) $ 6,400 to James Hagerty, and (2) $ 50,371.42 to the firm of Giardino and Schober.

 DISCUSSION

 Under the American Rule, "no attorneys' fees are recoverable absent express statutory authority for such an award." Wilder v. Bernstein, 965 F.2d 1196, 1201 (2d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 410, 121 L. Ed. 2d 335 (1992). However, on many occasions Congress has specifically empowered federal courts to award attorneys' fees to prevailing parties. Such is the case with 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k). Plaintiff brought the present action pursuant to Title VII, and, therefore, § 2000e-5(k) is the fee shifting provision which governs determination of the present motion. Defendant has misidentified § 1988 as the applicable fee shifting provision (Miller Aff. P 2). However, both [of these provisions] provide that the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs.'" Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 978, 122 L. Ed. 2d 132 (1993). The Supreme Court has viewed the similar language found in these provisions as "'a strong indication' that they are to be interpreted alike." Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2, 109 S. Ct. 2732, 2735 n.2, 105 L. Ed. 2d 639 (1989); see also Scelsa v. City Univ. of N.Y., 827 F. Supp. 1073, 1075 (S.D.N.Y. 1993) ("the standards for awarding fees are the same under both statutes") (citation omitted). Therefore, defendant's arguments under § 1988 are relevant to this Court's analysis of plaintiff's motion for attorneys' fees and costs under § 2000e(5)(k). *fn1"

 The initial inquiry under § 2000e-5(k) focuses on whether a plaintiff is a "prevailing party." On the second page of its response affidavit, defendant commences to identify what it believes to be the "Prevailing vs. Non-Prevailing Issues." Defendant argues that plaintiff advanced a variety of theories to establish liability at trial, but was only successful on one of these. (Miller Aff. P 3). Further, defendant argues that "plaintiff did not prevail on any of his damage claims he presented at trial", and was merely awarded $ 25,000 in lieu of ordering that plaintiff be admitted to the union. (Miller Aff. P 4). Defendant then concludes that fees and costs related to the theories upon which plaintiff did not succeed are unrecoverable, because these unsuccessful claims are analytically distinct from those which he was successful on. (Miller Aff. P 5).

 Although it is not entirely clear, defendant appears to assert, by the above cited arguments, that plaintiff is not a prevailing party because of the limited relief that he actually obtained. However, for purposes of determining whether plaintiff is a prevailing party, it is wholly irrelevant to consider "whether the plaintiff prevailed on the central issue by acquiring the primary relief sought." Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 787, 109 S. Ct. 1486, 1491, 103 L. Ed. 2d 866 (1989). Quite simply, whether the "'primary relief sought in a disparate treatment action under Title VII [was] reinstatement, backpay, or injunctive relief merely distracts the district court from the primary purposes behind [the fee shifting provision] and is essentially unhelpful in defining the term 'prevailing party.'" Id., 489 U.S. at 791, 109 S. Ct. at 1493. *fn2" Rather, the Supreme Court has stated that to be considered a prevailing party,

 
the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant . . . Therefore, to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought . . . In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.

 Farrar v. Hobby, U.S. , 113 S. Ct. 566, 572-73, 121 L. Ed. 2d 494 (1992) (citations omitted).

 In the present case, there can be no question that plaintiff obtained such a result. Following a non-jury bench trial on liability, this Court concluded that plaintiff established, by a preponderance of the evidence, that defendant discriminated against him by conditioning his union membership upon the passage of an exam, whereas non-minority apprentices were afforded union membership before taking such an exam. Although plaintiff was unsuccessful on other theories of discrimination which were advanced, this does not diminish the fact that he "prevailed" in establishing that he was the victim of unlawful racial discrimination. Likewise, although plaintiff did not establish he was entitled to backpay, or that the Civil Rights Act of 1991 should be applied retroactively to allow him to recover compensatory and punitive damages, plaintiff did prove that he was entitled to union membership in lieu of which he was awarded $ 25,000. Thus, plaintiff's lawsuit required defendant to alter its behavior in a way that directly benefited plaintiff and altered the legal relationship between the parties. See Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) (Even though plaintiff "did not establish their claims in all respects" and "no compensatory damages were awarded" legal relationship of parties was still changed). Under these circumstances, plaintiff was a prevailing party within the meaning of § 2000e-5(k).

 Having determined that plaintiff was a prevailing party, this Court turns to the calculation of "what constitutes a reasonable attorney's fee. The lodestar approach governs the initial estimate of reasonable fees." Grant v. Martinez, 973 F.2d at 99. Calculation of the lodestar involves "multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888, 104 S. Ct. 1541, 1544, 79 L. Ed. 2d 891 (1984). Although adjustments to the initial estimate can be made depending on the special circumstances of a particular case, "there is a presumption that the lodestar figure is reasonable." Dague v. Burlington, 935 F.2d 1343, 1358 (2d Cir. 1991) (citations omitted).

 Defendant has challenged the reasonableness of both the hours and the hourly rate plaintiff has put forward for purposes of calculating the lodestar figure. Defendant first challenges the reasonableness of the hourly rates which were billed by plaintiff's counsel. James J. Hagerty, plaintiff's original counsel seeks to be reimbursed at an hourly rate of $ 100.00 per hour (Giardino Aff. Exh A). Defendant does not objected to this fee. Mr. Giardino's firm seeks to be reimbursed at hourly rates of "$ 150.00 for partner time and $ 85.00 for associate time" (Giardino Aff. P 6). Defendant argues that Mr. Hagerty forty-two years of trial experience and hourly rate of $ 100.00 evidence that the $ 150.00 hourly rate of Mr. Giardino and his partner Mark F. Scarcello who have ten and nine years of trial experience, respectively, are unreasonable (Miller Aff. PP 15-18). However, this difference in billable rates is, at least in part, due to the fact this litigation was somewhat protracted and extended across the span of many years. *fn3" In situations such as this, it is usually appropriate to "divide the litigation into two periods, applying the current rate to the recent phase and the historic rate to the earlier phase. Grant v. Martinez, 973 F.2d at 100. The different time periods at which Mr. Hagerty and Mr. Giardino were involved in this case accounts for at least part of the discrepancy in their billable rates. *fn4" Further, the relevant inquiry is what ...


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