practicing attorney." (Miller Aff. P 10). Further, defendant notes that discovery in this case had been completed by the time "Mr. Giardino received the counsel assignment order of Judge Curtin." (Miller Aff. P 13). Finally, defendant notes that over 36% of the total hours submitted on the attorneys' fee application were attributable to the research and drafting of legal memoranda. (Miller Aff. P 14). In making these argument, defendant fails to acknowledge that the involvement of Mr. Giardino's firm with this case was spread out over a period beginning in February of 1990 and continuing through May 1993. Further, defendant fails to give due to consideration to complexity and number of factual land legal issues involved. Significantly, as defendant acknowledges, plaintiff advanced four separate theories of discrimination (Miller Aff. P 3).
With respect to defendant's argument that the amount of time billed to the research and drafting of legal memoranda is excessive, there is one matter which does warrant closer examination. Specifically, the amount of time designated for researching and drafting memoranda related to the issue of damages. Although this Court finds no problem with the amount of time Mr. Giardino and Mr. Scarcello have billed with respect to these matters, Bridget Faso, an associate with Mr. Giardino's firm, has billed what this Court has identified to be in excess of 100 hours related to the issue of damages. While the billing of such a large number of hours initially raises concerns, this must be balanced against the fact that the legal issues concerning damages were complicated by the passing of the of the Civil Rights Act of 1991 and whether its provisions for compensatory and punitive damages should be applied retroactively. Having given due consideration to the complexity of the issues involving damages presented by this case, this Court finds that the number of hours billed by Ms. Faso to be reasonable. Therefore, upon review of plaintiff's billing statement, this Court finds the hours billed by Mr. Giardino's firm were reasonable to accomplish the designated tasks.
In addition, the reply papers of plaintiff's counsel also contain an additional request for reimbursement of expert fees totaling $ 3,720.40 (Giardino Reply P 27). Defendant has not responded to this additional request. As authority for the award of expert fees, plaintiff's counsel cites Williams v. New York, 728 F. Supp. 1067, 1072 (S.D.N.Y. 1990). In Williams, Judge Patterson specifically held that "Section 1988 authorizes recovery of costs for experts required for effective representation." Id 728 F. Supp. at 1071. However, since the time of that decision, the Supreme Court has stated "we conclude that § 1988 conveys no authority to shift expert fees." West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 111 S. Ct. 1138, 1148, 113 L. Ed. 2d 68 (1991); Rivera v. Dyett, 762 F. Supp. 1109, 1118 (S.D.N.Y. 1991).
In addition, plaintiff's counsel has not argued such fees should be shifted pursuant to 28 U.S.C. § 1920 and § 1821. Therefore, plaintiff's request for $ 3,720.40 in expert fees must be denied. As such, the lodestar figure with respect to Mr. Giardino's firm shall be $ 76,037.92.
This Court's inquiry does not end with the determination of a lodestar figure. "Although there is a strong presumption that the lodestar figure represents the reasonable fee, other considerations may lead to an upward or downward departure from the lodestar." Grant v. Martinez, 973 F.2d at 101 (quotations omitted). The most critical factor to consider is the degree of success obtained. Daque v. Burlington, 935 F.2d at 1359. In this case, defendant argues that the lodestar should be adjusted downward to reflect plaintiff's limited success. In Grant v. Martinez, the Second Circuit Court of Appeals summarized the two step test for determining whether there should be a downward adjustment of the lodestar figure as follows;
at step one of this analysis, the district court examines whether the plaintiff failed to succeed on any claims wholly unrelated to the claims on which the plaintiff succeeded. The hours spent on unsuccessful claims should be excluded from the calculation. At step two, the district court determines whether there are any unsuccessful claims interrelated with the successful claims. If such unsuccessful claims exist, the court must determine whether the plaintiff's level of success warrants a reduction in the fee award. If a plaintiff has obtained excellent results, however, the attorneys should be fully compensated.
Id., 973 F.2d at 101 (citations omitted).
The first step requires this Court to consider whether the claims on which plaintiff did not succeed involved "different facts and legal theories" as compared to those upon which plaintiff did prevail. Texas State Teachers Assn., 489 U.S. at 789, 109 S. Ct. at 1492. No award should be made for such unsuccessful claims because they are to "be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services" performed in relation to such claims. Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983). In the present case, plaintiff advanced several theories of unlawful discrimination at trial. All of these were based on Title VII and premised on the fact that plaintiff had not been admitted to the union. Thus, despite the fact that plaintiff was only successful in proving one theory of liability all of the theories he advanced were factually and legally related. Similarly, plaintiff's various theories of damages theories were related to the matters on which he was successful. Therefore, there is no billable time which needs to be excluded as being attributable to unsuccessful claims unrelated to those upon which plaintiff did succeed.
At step two of this analysis this Court if faced with a number of unsuccessful claims which are factually and legally related to those upon which plaintiff did succeed, Determination of whether such circumstances warrant a downward adjustment of the lodestar figure is "more complex" than the downward adjustment that would be required at step one. Texas State Teachers Assn., 489 U.S. at 789, 109 S. Ct. at 1492. The most critical factor to consider the degree of success that was obtained by the plaintiff. In this regard, the Supreme Court has noted that although "the plaintiff often may succeed in identifying some unlawful practices or conditions . . . the achievement of prevailing party status may say very little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Id. (quotations omitted). If a reduction of the lodestar is appropriate, the amount of the reduction is left to the equitable discretion of the district court which must either "identify specific hours that should be eliminated or . . . simply reduce the award to account for the limited success of the plaintiff." Id., 489 U.S. at 789-90, 109 S. Ct. at 1492. Although "reductions are not always required when plaintiffs fail to succeed on every issue", Daque v. Burlington, 935 F.2d at 1359, it must be emphasized that it is this Court's "responsibility to 'make the assessment of what is a reasonable fee under the circumstances of the case.'" Farrar v. Hobby, 113 S. Ct. at 575 (citing Blanchard v. Bergeron, 489 U.S. 87, 96, 109 S. Ct. 939, 946, 103 L. Ed. 2d 67 (1989)).
In this case, plaintiff has advanced a number of theories for liability and damages, but has only obtained limited success. At the liability trial, plaintiff proffered two main contentions.
First, that the Journeyman Electrician Exam had a disparate impact on minority trainees. Second, that requiring minority trainees to first pass the exam before they could become members of Local 41 while nonminority apprentices were afforded union membership upon entering the apprentice program discriminated against him based upon his race. Plaintiff was successful in establishing the second of these two theories. The significance of the fact that plaintiff established that he had been the victim of racial discrimination cannot be understated. By establishing that the Union had intentionally discriminated against him plaintiff not only took a step towards obtaining relief for himself, but also acted "as a 'private attorney general' vindicating a policy that Congress considered of the highest importance.'" Riverside v. Rivera, 477 U.S. at 575, 106 S. Ct. at 2694. Considering the importance of vindicating his rights as well as exposing the discriminatory practices of defendant, this Court finds that it would be inappropriate to reduce lodestar based on the plaintiff's failure to succeed on every theory of liability. Therefore, this Court will deny defendants motion to reduce the lodestar by the amount of billings attributable to theories of liability upon which plaintiff did not succeed. As such, plaintiff's counsel is entitled to the majority billings through March 7, 1992.
However, this Court finds that a different conclusion is required with respect to billable time spent addressing the issue of damages. In Grant v. Martinez, 973 F.2d 96 the Second Circuit rejected defendants argument that the Supreme Court's decision in Riverside v. Rivera established that "primary" consideration be given to proportionality in the calculation of a fee award, except in the rare cases in which the public interest is served by vindication of constitutional rights." Significantly, the Second Circuit reaffirmed its prior statement made in Cowan v. Prudential Ins. Co., 935 F.2d 522 (2d Cir. 1991) that "[a] presumptively correct 'lodestar' figure should not be reduced simply because a plaintiff recovered a low damage award." Id., 935 F.2d at 526. Moreover, the Second Circuit has held "a reduction made on the grounds of a low award to be error unless the size of the award is the result of the quality of representation." DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1935). The Second Circuit has also concluded that even an award of nominal damages will usually justify an award of attorneys' fees. Fassett v. Haeckel, 936 F.2d 118, 121-22 (2d Cir. 1991); Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992).
Subsequent to these decisions by the Second Circuit, the Supreme Court stated that "having considered the amount and nature of damages awarded, the court may lawfully award low fees or no fees without reciting the 12 factors bearing on reasonableness, or multiplying the number of hours reasonably expended by a reasonably hourly rate." Farrar v. Hobby, 113 S. Ct. at 575 (citations omitted). Especially significant to the present context was the Supreme Court's statement that "where recovery of private damages is the purpose of civil rights litigation, a district court in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought" when determining whether the lodestar should be reduced. Id., 113 S. Ct. at 575 (quotations omitted). Thus, while the rule that attorneys' fees should only be awarded proportionate to the ratio between damages sought and actually obtained has been rejected, Riverside v. Rivera, 477 U.S. at 576-81, 106 S. Ct. at 2695-97; Grant v. Martinez, 973 F.2d at 102, there can be no question that a court may consider the limited success in obtaining the relief being sought in exercising its discretion to adjust the amount of attorneys' fees to be awarded. Importantly, the fact that a plaintiff recovers only nominal damages does not, in and of itself, justify awarding low fees. As Justice O'Connor stated in her concurring opinion in Farrar, "every nominal damage award has as its basis a finding of liability, but obviously many such victories are pyrrhic ones." Id., 113 S. Ct. at 578. Accordingly, the key consideration in determining whether a downward adjustment to the attorneys' fees being sought is appropriate is a "comparison between the relief sought and the relief granted by the court. Hop Wah v. Coughlin, 1993 U.S.Dist. LEXIS 5443, *5-6 (N.D.N.Y. April 23, 1993).
There is little question that the primary relief sought by plaintiff was monetary damages. Plaintiff sought to recover the following: (1) backpay; (2) 9% interest on backpay; (3) compensatory and punitive damages pursuant to the Civil Rights Act of 1991; and (4) union membership. At trial on the issue of damages, plaintiff submitted no proof of actual lost wages or employment opportunities as a result of the union's failure to offer him union membership prior to passing the exam as it did for nonminority apprentices. Plaintiff wholly failed to establish that he was entitled to any form of backpay award. Furthermore, since this Court determined that the Civil Rights Act of 1991 should not be applied retroactively, plaintiff was unable to establish that he was entitled to compensatory or punitive damages. Although plaintiff made extensive efforts attempting to prove entitlement to money damages, such efforts were entirely fruitless.
The manner in which this action was prosecuted demonstrated that plaintiff was primarily interested in obtaining monetary relief. Although plaintiff received a monetary award in lieu of being admitted to the union, it is significant that plaintiff did not obtain a monetary award under the theories which were vigorously litigated by his attorneys at trial. Specifically, plaintiff had sought in excess of $ 199,000 on the theory of backpay as well as substantial compensatory and punitive damages to be determined by the court, but did not obtain any award on these theories (See Plaintiff's Amended Pretrial Statement for Damages at 2). The only relief sought and which this Court found plaintiff was entitled to was admission to the union. However, plaintiff gave this remedy little attention at trial and devoted less than two pages to this issue in his proposed findings of fact and conclusions of law memoranda. The limited importance of this remedy was also evidenced by the fact that defendant did not even address this issue at trial. While the proof established the plaintiff was entitled to such relief, the evidence at trial demonstrated that such relief would be of little value to plaintiff. Faced with these circumstances, this Court constructed an equitable remedy by which plaintiff would receive a monetary award in lieu of being admitted to the union. Thus, plaintiff sought hundreds of thousands of dollars in monetary relief, but only attained a limited financial remedy on an equitable theory which was not advanced by counsel. Although it is important that plaintiff corrected the wrong of defendant's past discriminatory practices, since he was primarily interested in obtaining substantial money damages but received none, his actual success in this action was limited. Having fully considered the facts, procedural history and performance of counsel in this matter, this Court finds that all billing entries attributable to the issue of damages should be reduced by 75%.
See United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir. 1989) (Affirming district court's determination that bill be reduced by 20% to reflect a reasonable fee in light of the limited success achieved.).
Having examined the billing statements submitted by plaintiff, this Court finds that reducing the time billed to addressing the issue of damages by 75% results in a downward adjustment of $ 25,666.50 for the bill submitted by Mr. Giardino's firm.
In addition, the 75% reduction eminates $ 150.00 from the bill submitted by Mr. Hagerty.
Therefore, plaintiff shall recover from defendant $ 56,771.42 to cover attorneys' fees; $ 50,371.42 owing to Mr. Giardino's firm, and $ 6,400.00 owing to Mr. Hagerty.
For the foregoing reasons, plaintiff's motion for attorneys' fees is granted. However, to account for plaintiff's limited success and ensure that the fee recovered by plaintiff's attorneys is reasonable, this Court exercises it discretion to reduce the fee sought by plaintiff such that defendant shall pay plaintiff, as attorneys' fees, $ 56,771.42.
IT HEREBY IS ORDERED that plaintiffs' motion for attorneys' fees is granted to the extent that defendant shall pay $ 56,771.42 to plaintiff as attorneys' fees.
Dated: March 31, 1994
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge