attorney's fees the court must calculate a 'lodestar figure' based upon the hours reasonably spent by counsel . . . multiplied by the reasonable hourly rate." Cruz, 34 F.3d at 1159 (citations and internal quotations omitted).
Whether a particular hourly rate is reasonable depends upon whether it is "in line with those [rates] prevailing in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation." Id. (citations and internal quotations omitted). The fixing of a reasonable hourly rate for a particularly attorney falls within the trial judge's discretion, after the judge has considered "the prevailing marketplace rates for the type of work and the experience of the attorneys." Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir. 1994).
In the case at bar, Pollis's claim is based upon an hourly rate of $ 325 for her lead attorney, Janice Goodman. The New School says that this hourly rate is excessive. It calls to my attention Luciano v. The Olsten Corporation, 1996 W.L. 264985 (E.D.N.Y.). Judge Spatt of the Eastern District of New York, who presided over a discrimination case in which Goodman represented the successful plaintiff, concluded after a detailed review of cases that a maximum reasonable hourly rate for partners in such cases was $ 200, "although that rate may vary based on the experience and expertise of the individual." Id. at *3 He held that an hourly rate of $ 225 was reasonable for Goodman's time, "based on the difficulty of the issues presented, the years of experience and expertise of the plaintiff's attorney in the field of employment law, and the extent of the success achieved" Id. The plaintiff in Luciano had requested an hourly rate of $ 325 for Goodman's time, as does Pollis in the case at bar.
In letters and affidavit submissions, Pollis says that Judge Spatt was wrong and cites cases purporting to show "that Judge Spatt was using Long Island rather than New York City rates." Letter dated May 20, 1996. In point of fact, the cases in which trial judges attempt to fix reasonable hourly rates for attorneys are legion. They cannot be symmetrically reconciled. At least, I will not attempt to do so. Rather, I base my conclusion upon a letter Goodman wrote to Pollis on April 16, 1993, explaining the particular fee arrangement which Goodman proposed and to which Pollis agreed. I need not recite the full details of that arrangement. The pertinent sentence in Goodman's letter to Pollis is this: "You understand that in the event that we prevail in obtaining an injunction, I will seek fees from the federal court. The fees that I seek will be at the rate of $ 275.00 per hour, which is the prevailing rate for attorneys with my experience and background." Quite clearly, Judge Spatt would not go so far; but I am prepared, on this side of the East River, to take Goodman at her own word, and will calculate plaintiff's fee application at the $ 275 hourly rate for Goodman. I think that this rate is sufficiently on the high side to make it unnecessary to adjust the rate for any inflation that may have occurred during the three years between Pollis's retention of Goodman and the trial.
(b) Mendoza's Hourly Rates
The time devoted by Agnes Mendoza to the case is charged at two hourly rates: $ 75 for 187.3 hours Mendoza put in as a paralegal, and $ 125 for 243.6 hours as an associate attorney in the firm of Goodman & Zuchlewski.
I will limit the fees for Mendoza's time to the paralegal hourly rate of $ 75. During the trial Mendoza, who had been seated at counsel table, was called as a witness on behalf of plaintiff to testify to the jury about certain calculations that she had made with respect to New School salary rates. Counsel for the New School objected, on the ground that the Code of Professional Responsibility prohibits a lawyer from being called as a witness on behalf of a client. DR 5-102(A), 29 McKinney's Consol. Laws of N.Y. (1992).
At sidebar, Goodman represented to the Court and counsel that the Disciplinary Rule was not implicated, because Mendoza was not an attorney. Rather, Goodman characterized Mendoza as a lesser form of employee who had prepared the calculations which she was called upon to describe in her testimony. On the basis of that representation, I overruled the New School's objection and permitted Mendoza to testify.
In these circumstances, it would be improper to allow plaintiff to claim compensation for Mendoza at the higher hourly rate of an associate attorney. All her hours will accordingly be allowed at the paralegal rate of $ 75.
(c) The Degree of Plaintiff's Litigation Success
The preceding section of this Opinion sets forth the reasonable rates that Pollis may include in her claim for attorney's fees. I will assume for the sake of the present discussion that the number of hours included in the claim is also reasonable, although that point will be revisited under Point III, infra.
However, "the product of reasonable hours times a reasonable rate does not end the inquiry." Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). In Hensley, the Court focused upon "the important factor of the 'results obtained,'" and undertook to instruct trial judges on what to do "where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." Id.
Hensley instructs that where a plaintiff presents in one law suit "distinctly different claims for relief that are based on different facts and legal theories," even against the same defendant, so that "counsel's work on one claim will be unrelated to his work on another claim . . . ., no fee may be awarded for services on the unsuccessful claim." 461 U.S. at 434-35. On the other hand, where a civil rights case presents only a single claim, or the plaintiff's claim for relief "will involve a common core of facts or will be based on related legal theories," and the plaintiff has obtained "excellent results," the attorney's fee awarded to such a prevailing party may be fully compensatory. "Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient basis for reducing a fee. The result is what matters." Id. at 435 (footnote omitted).
In its continuing discussion at 461 U.S. at 436, the Court in Hensley used language which seems to me to apply to the case at bar:
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claim were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.
At the end of the trial, Pollis recovered significant amounts on certain of her claims. But the jury rejected her claims for preretirement damages resulting from emotional distress, and for punitive damages. The Court significantly reduced both the economic and equitable demands Pollis made in her proposed judgment.
With respect to the preliminary injunction stage, the Court dismissed Pollis's ADEA claim, and denied her motion for a preliminary injunction. That last factor is, however, arguably reduced by the possibility that the New School was influenced in its treatment of Pollis as an adjunct professor by the language I used, quoted supra, in denying the preliminary injunction.
I think that plaintiff's claim that only 27 of Goodman's 570.5 total hours were spent on the ADEA claim is quite unsupportable. Both the ADEA and Title VII claims were pleaded and exhaustively briefed in the preliminary injunction context. Furthermore, not only was the ADEA claim dismissed, the preliminary injunction, which would have kept Pollis on as a fully tenured professor after her 70th birthday, was denied.
Goodman's submissions say that she spent about 110 hours in preparing for and presenting the preliminary injunction motion. She says that all of this time was spent on the Title VII aspect of the motion. However her injunction papers do not support this contention. Applying the Hensley factors, I conclude that only one-half of that total, or 55 hours, may be included in Pollis's claim for attorney's fees. Those hours are compensable at the $ 275 hourly rate previously decided upon. I make no reduction on this score in the total hours claimed for Mendoza's work at the paralegal rate.
That leaves 433.5 hours of Goodman's time fairly ascribable to remaining discovery, trial preparation, the conduct of the trial, and litigation of the form of this judgment (total hours of 570.5 less 27 hours less 110 hours). Given the jury's rejection of significant and discrete claims made by Pollis, and the Court's rejection or reduction of other claims, I think that a 20% "degree of success" reduction is justified.
I will apply the same reduction to the total number of hours charged for Mendoza.
In Luciano v. The Olsten Corp., 1996 W.L. at *5, Judge Spatt wrote of Ms. Goodman and her adversary in that case:
Each party draws the Court's attention, in great detail, to instances in which it contends that the other needlessly multiplied the hours spent on this case by uncooperative or obstructive conduct. The Court agrees that this litigation was characterized by a notably high level of contentiousness and lack of cooperation that resulted in excess requests for Court intervention and increased the number of hours spent on the case by the attorneys. The Court was surprised and distressed at the amount of time and energy that each attorney spent criticizing the conduct of the other. While it is not clear that one party or the other was to blame for the contentious nature of any particular event or of the litigation in general, it is clear that both lead attorneys contributed to the highly antagonistic atmosphere that pervaded every aspect of the litigation. The Court declines to compensate counsel for the plaintiff for her share of this unnecessary and stressful litigation.
The Court agrees with the defendants that thirty percent of the effort expended by the attorneys in this action could have been avoided. However, the plaintiff's counsel should not bear the entire burden of what was the product of the conduct of both lead attorneys. Accordingly, the Court find that it is appropriate to reduce the request by hours of 15% as set forth below.