of time preparing the fee application. See Davis v. City of New Rochelle, 156 F.R.D. 549 (S.D.N.Y. 1994) (reviewing proportion of application fees to total fees allowed in litigation in S.D.N.Y.). The Court recognizes that the fee claimed will be reduced by the Court's adjustment of McGovern's and the Sapirs' billing rates. However, a further reduction of time is mandated for the excessive time expenditures. Accordingly, the Court awards half of the time requested by McGovern, which brings the hours expended post-judgment down to a more reasonable yet still generous amount.
C. Adjustments to Claimed Costs
The defendant's challenges, and the final adjustments, to the costs allowed are set forth in Table 2. Of note is the reduction for excessive fax and photocopying charges. Plaintiff claims regularly to charge $ 2.50 per page for a local fax call, and has claimed a single 751-page transmission from White Plains to Manhattan in an amount of $ 1,877.50. It is an unacceptable and unreasonable billing practice to ignore the many more efficient means of immediate delivery of a document such a short distance.
See Ginsberg, 1998 WL 19997, *4 (disallowing all local fax charges). Further, plaintiff claims $ 0.25 per page for photocopying within the firms' offices. However, plaintiff also submits receipts from professional photocopying services billing $ 0.05 per page. Because more economically efficient means were clearly available to plaintiff, all faxes are compensated at $ 1.00 per page and copies at $ 0.05 per page.
D. Lodestar Total
Based on the previous analysis, the lodestar is calculated as follows: 913.9 hours for Robert Sapir at $ 200/hr; 534.0 hours for Donald Sapir at $ 250/hr; 4.6 hours for David Cohen at $ 50/hr; 10.8 hours for partner William Frumkin at $ 200/hr; 16.3 hours for Eliot Bernak at $ 100/hr; 21.3 hours for Louis Santangelo at $ 175/hr; 120.2 hours for Robert McGovern at $ 200/hr; and 58.1 hours for Steven Shapiro at $ 100/hr. After plaintiff's voluntary 5% deduction (which the Court accepts as an appropriate reduction for many of the defendant's miscellaneous challenges to the fee and cost claims), the fee element of the lodestar totals $ 336,183.63. Costs after adjustments total $ 38,015.13.
III. Modification to Lodestar
A. Fee Enhancement
Plaintiff suggests that the "excellent result" of this litigation merits an upward departure of the lodestar amount, while defendant claims that not only is a departure not merited, but such a departure is no longer allowable by law. It is the practice of courts in awarding attorneys' fees to subsume all factors into the lodestar calculation, which the Court has done in its lodestar calculation here. See Loper v. New York City Police Dep't., 853 F. Supp. 716, 722 (S.D.N.Y. 1994) (citing Dague v. City of Burlington, 935 F.2d 1343, 1359 (2d Cir. 1991)). The parties' arguments on whether enhancement for contingency fee cases are still available through state law channels, after the Supreme Court's explicit disallowance of contingency fee enhancements to lodestar figures in City of Burlington v. Dague, 505 U.S. 557, 566, 112 S. Ct. 2638, 2643, 120 L. Ed. 2d 449 (1992), is not reached today. Fee enhancement is awarded only in exceptional cases, and is done so in light of the difficulty of the case or the excellence of the result achieved. See Hensley, 461 U.S. at 435, 103 S. Ct. at 1940; Luciano, 925 F. Supp. at 963. While plaintiff was well rewarded on two of her claims, an overall fee enhancement is not merited. Because only two of the four claims asserted were successful, the Court believes the plaintiff to be well and fully compensated by the amount it awards today.
B. Fee Reduction for Lost Claims
As noted above, fees may not be paid for severable claims, unless the claims are "inextricably intertwined" and "involve a common core of facts or are based on related legal theories." See Reed, 95 F.3d at 1183 (quoting Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249, 1259 (2d Cir. 1987)) (alteration omitted). Here, plaintiff prevailed on her sex discrimination and retaliation claims, but failed on her harassment and age discrimination claims. The Court, however, recognizes the commonality of the age and sex discrimination claims, and explicitly finds that the work and preparation related to the harassment and age claims did not add appreciably to the success of the victorious claims. Most elements of the unsuccessful claims coincided with the other aspects of the case, such as in discovery and in the presentation of evidence at trial. Therefore, even though plaintiff prevailed on only two of the four brought, the Court does not deduct half of the fee award. Rather, because of the noted substantial commonalties, the Court reduces the lodestar only by 10%.
For the reasons discussed above and on Tables 1 and 2, plaintiff is awarded $ 336,778.88 in attorneys' fees and costs.
Dated: New York, New York
March 6, 1998
Table 1. Calculation of Total Fee Award (Lodestar and Departures).
Attorney or Costs Plaintiff's Claim (hourly Defendant's Claim
rate x hours expended)
Donald Sapir (P3- $ 325/hr x 617.8 $ 250/hr x adjusted time
13 *, D5-12 *) (P56-7) (see Table 2)
Robert Sapir $ 300/hr x 1006.8 $ 200/hr x adjusted time
(see Table 2)
David Cohen (D38) $ 300/hr x 11.2 $ 50/hr x adjusted time
(see Table 2)
William Frumkin $ 250/hr x 21.1 $ 0 (Should be eliminated,
because all work trivial.)
(see Table 2)
Eliot Bernak $ 150/hr x 16.3 (records $ 0 (No records on this
supplied after exchange of attorney.)
Louis Santangelo $ 175/hr x 37.4 Not contested
Robert McGovern $ 225/hr x 240.3 $ 175/hr x adjusted time
D18 (see Table 2)
Steven Shapiro $ 125/hr x 63.1 $ 100/hr x adjusted time
(see Table 2)
Attorney or Costs Ruling (See Table 2 for comments on
adjustments to requested hours.)
Donald Sapir (P3- Many cases award $ 250/hr, none above
13*, D5-12*) $ 300/hr, as P claims. The rate of $ 250/hr is
fair in light of plaintiff's experience and is
within plaintiff's billing range for civil rights
Deducted 83.8 hours (see Table 2).
Robert Sapir R. Sapir was not experienced in civil rights
employment litigation, and this case did not
merit two lawyers at the same rate. $ 250 is
within his normal range, but his inexperience
in the present litigation suggests a departure to
Deducted 92.9 hours (see Table 2).
David Cohen (D38) Although this is an experienced lawyer, the
work he performed was paralegal work, rather
than work typical of a senior partner. $ 50/hr
is appropriate for this sort of work.
Deducted 6.6 hours (see Table 2).
William Frumkin Same hourly rate as R. Sapir because of
comparable skill and experience.
Deducted 10.3 hours (see Table 2).
Eliot Bernak Second-year associate who joined firm after
conclusion of trial. $ 100/hr is appropriate,
given his lack of knowledge of case.
Louis Santangelo Deducted 16.1 hours (see Table 2.)
Robert McGovern Based on this lawyer's experience, the same
D18 rate allowed R. Sapir will be allowed
Deducted 120.1 hours (for duplicative and
excessive time in preparing fee reply
memorandum. D. Sapir's full time allowed.
See Opinion and Table 2).
Steven Shapiro $ 100 is appropriate based on this lawyer's
Deducted 5.0 hours (see Table 2.)
Hourly Fee Hours Amount
Attorney or Costs Rate ($ /hr) Awarded Awarded ($ )
Donald Sapir (P3- 250 534.0 $ 133,500.00
Robert Sapir 200 913.9 182,780.00
David Cohen (D38) 50 4.6 230.00
William Frumkin 200 10.8 2,160.00
Eliot Bernak 100 16.3 1,630.00
Louis Santangelo 175 21.3 3,727.50
Robert McGovern 200 120.2 24,040.00
Steven Shapiro 100 58.1 5,810.00
Subtotal $ 353,877.50
5% Deduction -$ 17,693.88
(offered by Plaintiff)
Firm Costs Plaintiff's Claim Defendant's Claim
Costs: Cooper, Sapir $ 33,245.20 Objects to certain
& Cohen (R. Sapir's elements, itemized in
firm) P57 Table 2.
Costs: Sapir & $ 10,479.43 Objects to certain
Frumkin (D. Sapir's elements, itemized in
firm) P57 Table 2.
Departures from Plaintiff's Claim Defendant's Claim
Enhancement of Fees Unspecified enhancement Enhancement barred by
(D19, P17) for superior result. law.
Reduction of Fees No fee reduction beyond Significant deduction
(D21, P23) voluntary 5%. because of lost claims.
Firm Costs Ruling Costs Amount
Deducted Awarded ($ )
Costs: Cooper, Sapir Deductions discussed in
& Cohen (R. Sapir's lodestar adjustment 5,709.50 27,535.70
firm) P57 section below, and in
Costs: Sapir & Deductions discussed in
Frumkin (D. Sapir's lodestar adjustment 10,479.43
firm) P57 section below, and in
Since the costs billing is not always clear,
all costs deducted (Table 2) are deducted from
Cooper, Sapir, & Cohen's request. Total Costs
Awarded: $ 38,015.13
Lodestar Total $ 374,198.76
Departures from Ruling Adjusted Amount
Lodestar (%) Awarded($ )
Enhancement of Fees No enhancement.
(D19, P17) See Opinion. 0 0
Reduction of Fees Because unsuccessful
(D21, P23) claims did not add -10% -37,419.88
appreciably to the other
claims, Court deducts
10% from lodestar.
* To conserve space in this table, P # and
D # refer to pages in Plaintiff's Reply
Memorandum and Defendant's Memorandum. Total Fees
DSR # refers to Defendant's Sur Reply. Awarded: $ 336,778.88
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