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JACKSON v. CASSELLAS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


February 26, 1997

KATHLEEN L. JACKSON, Plaintiff, -vs- GILBERT CASSELLAS, in his capacity as Chairman, Equal Employment Opportunity Commission, Defendant.

The opinion of the court was delivered by: CURTIN

BACKGROUND

 In this sex discrimination case, plaintiff's attorney, William A. Price, Esq., prevailed. After seven years of bruising discovery and difficult motions, he was able to recover at settlement, without trial, all possible damages with the exception of front pay, which was potentially available under the statute.

 Through settlement, plaintiff received a cash payment of $ 138,690.00, plus interest and reimbursement for private medical insurance payments. She received a pension benefit increase from $ 648.00 per month to about $ 1,433.00 per month, and her medical premium was reduced by at least $ 149.00 per month. Because of plaintiff's alternate employment earnings, there was mitigation to the defendant in the amount of approximately $ 127,000.00 for backpay damages.

 Pursuant to 42 U.S.C. § 2000e-5(k), the Age Discrimination in Employment Act, 29 U.S.C. §§ 626(b) and 633(a), plaintiff moves for an award of attorney fees and expenses in connection with his efforts in this case. Unfortunately, in spite of strenuous efforts by United States Magistrate Judge Leslie G. Foschio and the court to settle, the fee application has turned into a second round of litigation. Plaintiff has filed five affidavits, a number of exhibits, and three memoranda in support of his claim, and defendant has filed three affidavits and two memoranda in response.

 Defendant objects to the fee application on the ground that the hourly rate claimed by Mr. Price is excessive, that the application is not supported by contemporaneous records, that the description of the work done is not specific enough to enable the court or defense counsel to determine what plaintiff's attorney did during the course of preparation, that the hours claimed for some portion of the work is excessive, and that plaintiff's attorney claimed an attorney rate for purely ministerial tasks. See Item 117.

 In his first affidavit in support of the fee application, Mr. Price has set forth what he describes as "Statement of Itemized Services," Item 115, Ex. B, which is a day-by-day accounting of his activities in this case with the hours expended for each activity. The total time calculated amounts to 1,699.10 hours. Attached to his affidavit Mr. Price also set forth in Exhibit C two attorney fee computations, utilizing different hourly rates. These computations recognize that there has been a substantial delay in the payment between the time that the services were rendered until the time of the application.

 The first Exhibit C computation is based upon an hourly rate of $ 175, the average historic market rate. The second computation is based upon $ 200 per hour, which represents the minimum current average market rate applicable for attorneys like Mr. Price who have specialized experience and success in this field in this district. In a subsequent affidavit, Mr. Price's lawyer sets out a number of variations on these rates. One variation is based on a calculation of actual historic rates charged by Mr. Price through 1991, and a $ 200 per hour rate after 1991. Item 126, PP 12-19. The Civil Rights Act was amended in 1991 to allow prevailing parties to charge the federal government interest on unpaid legal fees. 42 U.S.C. § 2000e-16(d)(effective November 21, 1991). Mr. Price asserts that under the circumstances, including delay in payment and the difficulty of the case, the $ 200 per hour rate is the minimum rate which should fairly and reasonably be applied to all hours.

 If the $ 175 per hour rate is accepted, the total attorney fee computation would be $ 297,342.50. If the combined historic market rate/$ 200 per hour fee is applied, the total attorney fee computation would be $ 306,743.00. If the $ 200 per hour rate is accepted, the total attorney fee computation would amount to $ 339,820.00. Mr. Price also claims expenses and disbursements in the amount of $ 14,785.77, and that amount is not disputed by the defendant. Mr. Price also requests reasonable attorney fees and expenses for the time expended to complete this application, but to date no affidavit has been supplied to the court setting forth this calculation. Item 115.

 DISCUSSION

 I. Lodestar calculation

 In this circuit, the starting point of every fee award is a calculation of the of the attorney's services in terms of the time expended on the case. City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974). To calculate the lodestar amount, the court multiplies the number of hours reasonably expended by a reasonable hourly rate to establish the fee award. Id. at 470-71. Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

 A. Objections to Mr. Price's records

 A fee application must be supported by contemporaneous time records which describe with specificity the work done. New York Ass'n. for Retarded Child., Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). The "burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept, the court should not award the full amount requested." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987).

 1. Were plaintiff's records made contemporaneously?

 "The rule in this Circuit prohibits the submission of reconstructed records, where no contemporaneous records have been kept." Lenihan v. City of New York, 640 F. Supp. 822, 824 (S.D.N.Y. 1986)(emphasis in original). A party may, however, submit typewritten transcriptions of contemporaneous records. Id. In addition, a party may offer explanations of contemporaneous records, based on personal knowledge. U.S. Football League v. National Football League, 704 F. Supp. 474, 477 (S.D.N.Y. 1989).

 As noted, plaintiff has submitted to the court a "Statement of Itemized Services," detailing the hours spent on the case. Items 115, Ex. B, and 134, Ex. B. Plaintiff's counsel avers that the statement was prepared directly from plaintiff's own handwritten entries in a daily log of activities. However, the manner in which Mr. Price kept his time records is unusual, since in one log or diary record he kept daily handwritten records not only for this case, but also for other cases, and his own personal and business activities. Therefore, to prepare Exhibit B, he had to review his log and cull out matters which did not apply. Mr. Price has submitted a handwritten, redacted copy of his entries pertaining to this case for the year 1991, but not for other years. Therefore, the defense has been able to compare handwritten entries for 1991 with his typed compilations contained in Exhibit B, but has not been able to make a similar comparison for other years. Plaintiff has refused to present a redacted version of the entire log, claiming that such an exercise would be "mindless busy work, would take up a great deal of time, and would be unnecessary to the fee claim." Item 134.

 Defendant argues that plaintiff's fee application should be denied because Mr. Price has not produced original, contemporaneous time records. Defendant has refused to examine the unredacted records under a condition that it enter into a confidentiality agreement regarding the unrelated information in Mr. Price's diary. The government says that it "cannot and will not enter into an open-ended agreement which might jeopardize the defense of future cases." Item 137 at 3.

 In considering this application, the court will take into account that through the years it has had numerous contacts with Mr. Price in other litigation. Mr. Price has always been trustworthy and accurate in every presentation made to the court. However, the court cannot ignore the fact that because of the manner in which he kept his records, defense counsel and the court have been denied the ability to fairly review his calculations. The court will also consider that a good portion of the work accomplished in this case was completed in 1991, which is the year in which he has presented a copy of his redacted entry (Item 134, Ex. O). The court is also familiar with the work done in this case during 1991, because supervision of discovery was not referred to United States Magistrate Judge Leslie G. Foschio until February 10, 1992 (Item 58). Therefore, the court is familiar with the course of litigation during that period.

 It is also apparent that after that time, the motions handled by the Magistrate Judge were important and difficult and required close attention of plaintiff's attorney. Further, an item-by-item comparison of the log entries in the "statement of itemized services" as described in paragraphs 16-18 in Exhibit R of Item 134 demonstrates that the statement of itemized services for that period sufficiently summarizes the hours expended and services performed. The discrepancies in the 1991 account are minor. Unfortunately, after considering all of the circumstances, the court must make a reduction in the fee application.

 2. The court must also make a reduction for vagueness

 The Supreme Court has observed that "counsel, of course, is not required to record in great detail how each minute of his time was expended[,] but at least counsel should identify the general subject matter of his time expenditures." Hensley v. Eckerhart, 461 U.S. at 437 n.12 (1983).

 The defense does not argue that there was not substantial work on the case. Rather, the defense claims that it is impossible to determine what activities Mr. Price participated in from his statement of itemized services, and that the fee should be adjusted accordingly.

 A sample of the entries of which defense complains include: Date Entry Hours 01-27-92 Meet w/ James .25 TC:GG (2) Message .40 Various Jackson tasks .75 TC:Depalo/KJ .35 01-27-92 Various Jackson tasks .75 01-30-92 TC:Mary Martin Mercato 01-31-92 TC:Larie(re fax) for .25 (Swick) message 02-15-92 Work on afternotes 05-08-92 Continue review 5/7 doc .75 prod

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