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NEW YORK STATE TEAMSTERS COUNCIL HEALTH & HOSP. FU

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK


July 8, 1994

THE NEW YORK STATE TEAMSTERS COUNCIL HEALTH AND HOSPITAL FUND, AND EVERETT L. CAMPBELL, JAMES M. CARLTON, RONALD MORIN, VICTOR C. OLIVADOTI, PAUL E. BUSH, DAWSON CUNNINGHAM, FRANK POSATO, and ANTHONY SIMOES, TRUSTEES OF THE NEW YORK STATE TEAMSTERS COUNCIL HEALTH AND HOSPITAL FUND, Plaintiffs,
v.
THE ESTATE OF ROCCO F. DePERNO, ROCCO A. DePERNO, and PATRICIA DePERNO, Defendants.

Hurd

The opinion of the court was delivered by: DAVID N. HURD

DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. Introduction.

 This action was commenced on October 4, 1988, by plaintiffs alleging violations of the Employee Retirement Income Security Act ("ERISA") during the period of October 1981, through March 1986. The court, after a four day bench trial, concluded that two of the defendants, Rocco F. and Rocco A. DePerno had violated several sections of ERISA. New York State Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 816 F. Supp. 138 (N.D.N.Y. 1993) [hereinafter Teamsters I].

 The court also ruled that the plaintiffs were entitled to "attorneys' fees and expenses with regard to the dismissal of the defendants' counterclaims only." Memorandum-Decision and Order dated May 17, 1992 (emphasis added). In response thereto, plaintiffs' attorneys submitted an application seeking $ 79,130.00 in attorneys' fees and $ 1,633.29 in expenses. This was based upon the work of six attorneys totaling 549.9 hours at hourly rates from $ 75.00 to $ 235.00 per hour. The court rejected that application in its entirety on the grounds that "the plaintiffs' application (was) a patent abuse of legal process." Memorandum-Decision dated July 22, 1993. On appeal, the Second Circuit remanded and instructed the court to "allow plaintiffs reasonable compensation for their fees in defending against the counterclaims." New York State Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 18 F.3d 179, 183 (2d Cir. 1994) [hereinafter Teamsters II].

 II. Discussion.

 In determining a reasonable fee, the court considers a variety of factors including "the difficulty of the questions involved; the lawyers' experience, ability and reputation; the customary fee charged by the bar for similar services; and the amount involved." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1263 (2d Cir. 1987); Mar Oil, S.A. v. Morrissey, 982 F.2d 830, 841 (2d Cir. 1993). In addition, the court may look "to its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).

 In determining the reasonableness of plaintiffs' request for attorneys' fees, the court's task is to determine the lodestar amount, namely, the number of hours reasonably expended in dismissing the counterclaims, multiplied by the reasonable hourly rate. See i.e., Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 563, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986); F.H. Krear & Co., 810 F.2d at 1264. The reasonable hourly rate is computed by considering those rates that "are in line with those prevailing in the community for similar services of lawyers of reasonable and comparable skill, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 896 n. 11, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984); see also Missouri v. Jenkins, 491 U.S. 274, 286, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989) "Certain variable criteria such as the novelty of the case and the individual attorney's skill are sublimed into this initial calculation." Wells v. Bowen, 855 F.2d 37, 43 (2d Cir. 1988). The lodestar amount is presumed to be the reasonable fee to which the attorney is entitled. See, Blum, 465 U.S. at 896; New York State Nat'l Org. for Women v. Terry, 737 F. Supp. 1350, 1359 (S.D.N.Y. 1990).

 The plaintiffs divided the hours worked into two categories: (1) partners (Buscemi and Weir); and (2) associates (Buckley, Strandberg, Adams, and Alger). The services were incurred between 1988 and 1990. Buscemi and Weir seek attorneys' fees at rates between $ 200.00 to $ 235.00 per hour. Buckley, Strandberg, Adams, and Alger seek rates between $ 75.00 to $ 170.00 per hour. The defendants have submitted affidavits from experienced attorneys practicing within the Northern District of New York stating that the reasonable hourly rates would be between $ 75.00 and $ 110.00 per hour. In light of all these submissions and its own experience, the court finds that an hourly rate of $ 120.00 for partners and $ 90.00 for associates are reasonable rates for the services rendered in the Northern District of New York between 1988 and 1990. In the following table, the court calculates the fee award by applying the reasonable rates from the immediately preceding paragraph to the hours reasonably expended by the plaintiffs in dismissing the defendants' counterclaims. Category Hours Rate Allowance Two partners 20.7 $ 120.00 $ 2,484.00 Four associates 87.4 90.00 7,866.00 Total 108.1 $ 10,350.00

19940708

© 1992-2004 VersusLaw Inc.



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