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JACKSON v. CASSELLAS

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

 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 ...


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