United States District Court, Eastern District of New York
February 7, 2000
STANLEY WHITE, ULYSSES BROWN, AND DONALD W. SWANSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
WHITE ROSE FOOD, A DIVISION OF DIGIORGIO CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case was commenced by the plaintiffs in August 1993 and
written decisions by this Court and an opinion by the Second
Circuit including White v. White Rose, 930 F. Supp. 814
(E.D.N.Y. 1996), aff'd in part, rev'd in part, White v. White
Rose, 128 F.3d 110 (2d Cir. 1997), on remand, White v. White
Rose Food, 62 F. Supp.2d 878 (E.D.N.Y. 1999). There followed a
non-jury trial, after which the Court rendered a decision on
October 28, 1999 in favor of the plaintiffs on their "duty of
fair representation" claims. See White v. White Rose Food,
72 F. Supp.2d 126 (E.D.N.Y. 1999). Presently before the Court is the
plaintiffs' application for prevailing party attorneys fees.
The Court has previously described the facts in this case in
its three published opinions and incorporates the factual
recitations by reference in this decision.
Representing the prevailing party, counsel for the plaintiffs
seek the sum of $436,396.12 in fees, and an additional sum of
$2,098.68 for disbursements. The request for attorneys fees,
including the "addendum to attorney fee application" and the
affidavit in further support of attorney fee application dated
February 4, 2000, is comprised of the following separate claims:
Leonard N. Flamm, Esq.: 284.9 hours at $325 per hour = $92,592.50
Norman Mednick, Esq.: 530.25 hours at $315 per hour = $167,028.50
Maria D. Beckman, Esq.: 68.1 hours at $215 per hour = $14,641.00
Eden M. Mauro, Esq. 90.1 hours at $185 per hour = $16,668.50
Total hours: 973.35 Total fee requested:
In addition to the above calculations, the plaintiffs request a
50% enhancement due to the "substantial risks of contingent fee
litigation." Thus, the total sum that the plaintiffs request in
fees is $436,396.12 together with disbursements in the sum of
Norman Mednick designated as "of Counsel" to the Law Offices of
Leonard Flamm was the principal trial counsel for the plaintiffs.
Leonard Flamm "second-seated" Mednick at all of the Court
appearances and at the trial. Maria Beckman and Eden Mauro were
associates in the Law Offices of Leonard Flamm and assisted with
case preparation, depositions, court appearances, and the writing
and editing of memoranda of law.
The defendant makes numerous challenges to the plaintiffs
application for attorneys fees. The defendant argues that: (1)
the hourly rates requested by the plaintiffs are not customary
and they are excessive; (2) a 50% enhancement is inappropriate;
(3) much of the time requested was excessive, vague, unreliable,
unreasonable and duplicative; and (4) the plaintiffs request for
costs should be reduced.
Because of the district court's familiarity with the quality of
the representation and the extent of the litigation, the decision
whether to award fees and the amount of fees awarded are issues
generally confined to the sound discretion of the court.
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998). The
well-known formula for calculating attorney's fees is the
"lodestar" method described in Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct.
3088, 92 L.Ed.2d 439 (1986). Under this method, the Court makes
an initial calculation of a lodestar amount by multiplying the
number of hours reasonably spent on the litigation by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424,
433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998); Gierlinger, 160
F.3d at 876; Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir.
If the court finds that certain claimed hours are excessive,
redundant, or otherwise unnecessary, the court should exclude
those hours from its lodestar calculation. Hensley, 461 U.S. at
434, 103 S.Ct. 1933; Luciano, 109 F.3d at 116. Once the initial
lodestar calculation is made, the court should then consider
whether upward or downward adjustments are warranted by factors
such as the extent of success in the litigation and the degree of
risk associated with the claim. Hensley, 461 U.S. at 434 and n.
9, 103 S.Ct. 1933, (citing Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-719 [5th Cir. 1974]). In this case,
there is no dispute that the plaintiffs are a prevailing party
and are entitled to an award of their reasonable attorney's fees.
In making the initial lodestar calculation, the Court finds
that the hourly rates requested by the plaintiffs are excessive.
The rate to be used in the calculation must be the rate
"prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation."
Luciano, 109 F.3d at 111, (citing Blum v. Stenson,
465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 ). Although
the plaintiffs have attached various affidavits to their motion
from other attorneys with similar billable rates, the Court notes
that the Second Circuit has recently upheld this Court's rates of
$200 per hour for partners, $135 per hour for associates, and $50
per hour for paralegals. Savino v. Computer Credit, Inc.,
164 F.3d 81, 87 (2d Cir. 1998); see also Luciano, 109 F.3d at
111-112 (collecting cases); Walz v. Town of Smithtown,
46 F.3d 162 (2d Cir. 1995); Cruz v. Local Union No. 3, Int'l.
Brotherhood of Electrical Workers, 34 F.3d 1148, 1160 (2d Cir.
1994); Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d
Cir. 1994). Therefore, the Court will apply those rates in making
the initial lodestar calculation. Although Mednick is Of Counsel
to the Law Offices of Leonard N. Flamm, he served as lead counsel
in this case. Therefore, in making the lodestar calculation, the
Court will apply the $200 per hour rate for Mednick. With regard
to Flamm, the Court will also apply the $200 per hour rate. As to
Associates Beckman and Mauro, the Court will apply the $135 per
Based on these findings, the Court determines that the initial
lodestar calculation based on the reduced hourly rates is as
Leonard N. Flamm, Esq.: 284.9 hours at $200 per hour = $56,980.00
Norman Mednick, Esq.: 530.25 hours at $200 per hour = $106,050.00
Maria D. Beckman, Esq.: 68.1 hours at $135 per hour = $9,193.50
Eden M. Mauro, Esq. 90.1 hours at $135 per hour = $12,163.50
Total hours: 973.35 Total fee
Next, the Court must determine the number of hours that were
reasonably expended in this litigation. Upon reviewing the time
sheets submitted by plaintiffs' counsel, and based upon this
Court's own knowledge of the proceedings and the trial, the Court
concludes that many of the 973.35 hours sought by the plaintiffs
are unnecessary and excessive.
First, the Court will examine Flamm's request for counsel fees.
Approximately 48 hours of Flamm's time of the 284.9 hours
requested, involves his travel and attendance at various Court
conferences, oral arguments and trial, where his role consisted
largely of observation. Many of the entries on Flamm's time
sheets combine the court appearances with travel to the
courthouse, thus making it difficult to discern exactly how much
time was spent traveling and how much time was spent in Court. In
any event, while the Court recognizes that Flamm may have
provided some useful services supporting Mednick at these
appearances, it does not consider all of his billed hours to be
reasonably necessary to the prosecution of this case. The Court
finds that a 10% reduction of Flamm's total hours reasonably
omits time he spent
merely observing while still compensating the plaintiffs for the
useful work Mednick performed prior to and during the trial.
The Court also finds that some of the hours billed by counsel
for the plaintiff are excessive, vague, unreliably supported,
unreasonable or duplicative. For example, the Court finds that
the requests of 46.9 hours to prepare the post-trial memorandum
and 37.6 hours in preparation of the Rule 23 class action
certification, are excessive. The Court has reviewed both of
these submissions and determines that 25 hours on the post-trial
memorandum and 15 hours in preparation of the Rule 23 class
action certification is reasonable and appropriate.
Similarly, the request for 60.5 hours in preparation of various
Local Civil Rule 56.1 statements (formerly Rule 3(g) statements)
is excessive. It appears that an allocation of 30 hours would be
more appropriate for such work. In addition, the Court finds that
the approximate 60 hours requested by counsel for the plaintiffs
for the preparation of the instant fee request, is clearly
excessive. Counsel merely needed to collect the relevant time
sheets, draft a short affidavit and memorandum of law and appear
for oral argument. In a prior case, this Court has approved five
hours for such a motion. See Savino v. Computer Credit, Inc.,
71 F. Supp.2d 173, 177-78 (E.D.N.Y. 1999). However, given the
length and history of this case, the Court finds that a total
expenditure of 15 hours would be more than reasonable.
As a result of what the Court perceives as excessive billing;
namely, (1) the 46.9 hours in preparation of the post-trial
memorandum; (2) the 37.6 hours in preparation of the Rule 23
class action certification; (3) the 60.5 hours in preparation of
various Local Civil Rule 56.1 statements; and (4) the 60 hours in
preparation for the instant fee request, the Court will reduce
the requested fees by 10 percent. An across the board 10 percent
reduction to cover all the excessive hours extends to counsel for
the plaintiffs the benefit of any doubt. In addition to the
excessive hours involved in the preparation of the post-trial
memorandum, the class certification, Local Civil Rule 56.1
statements and this fee request, it appears that other
inconsistencies and excessive billing may have occurred. Rather
than attempting to compute the exact number of hours that the
Court believes would have been appropriate for the respective
tasks performed by counsel, the Court is of the view that a 10
percent across the board reduction in the requested attorneys'
fees is fair, reasonable and appropriate.
Based on these findings, the Court determines, as to Flamm's
request, taking into account a 20% reduction (10% for court
appearances plus 10% for excessive billing) and a 10% reduction
with regard to Mednick, Beckman and Mauro, the initial lodestar
calculation should be modified as follows:
Leonard N. Flamm, Esq.: 227.9 hours at $200 per hour = $45,580.00
Norman Mednick, Esq.: 477.2 hours at $200 per hour = $95,440.00
Maria D. Beckman, Esq.: 61.3 hours at $135 per hour = $8,275.50
Eden M. Mauro, Esq. 81.1 hours at $135 per hour = $10,948.50
Total hours: 847.50 Total fee
Moreover, the Court agrees with counsel for the defendant that
requests for reimbursement for travel time should be reduced by
50% of the billable rate. Luciano, 925 F. Supp. at 965, aff'd,
Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997); Cruz, 34
F.3d at 1161 (citing Jennette v. City of New York, 800 F. Supp. 1165,
1170 [S.D.N.Y. 1992]). While the time sheets for counsel
for the plaintiffs do not indicate precisely how much time was
to the Uniondale Courthouse for various court appearances, oral
argument and trial, it appears that Flamm has requested 22 hours
for travel and Mednick 43 hours. As such, Flamm's fees must be
reduced by an additional $2,200 (22 hours × $200 / 50%), while
Mednick's fees must be reduced by an additional $4,300 (43 hours
× $200 / 50%). Therefore, with these final reductions, the fees
should be further adjusted as follows:
Leonard N. Flamm, Esq.: $43,380.00
Norman Mednick, Esq.: $91,140.00
Maria D. Beckman, Esq.: $8,275.50
Eden M. Mauro, Esq. $8,815.50
Total fee: $151,611.00
The Court is not persuaded that any increase in the fees of
counsel for the plaintiffs is appropriate let alone a 50 percent
"lodestar bonus." The Court notes that while the plaintiffs were
meritorious, the litigation did not present a "ground-breaking"
case where there was a significant likelihood that the plaintiffs
would not prevail. See e.g. Quinn v. Nassau County Police
Dep't., 75 F. Supp.2d 74, 78-79 (E.D.N.Y. 1999) (holding that an
enhancement of 10 percent was appropriate based on the
plaintiff's police officer's claim of discrimination on the basis
of his sexual preference). While this case may have lasted more
than six years, the length of the case is not indicative of its
complexity or noteworthiness. The case involved a routine dispute
that eventually proceeded to a short non-jury trial consisting of
four witnesses and approximately six hours of testimony.
Finally, the Court finds that the defendant's other objections,
including the claim that the request for costs are vague,
excessive, unreasonable and improper, are without merit.
Therefore, the Court determines that the plaintiffs should be
awarded attorneys' fees in the total sum of $151,611.00, together
with disbursements the sum of 2,098.68.
Based on the foregoing, it is hereby
ORDERED that the Clerk of the Court is directed to enter a
judgment in favor of the plaintiffs for $193,109.91 together with
prejudgment interest compounded annually at the U.S. Treasury
bill rate for each applicable 52 week period from September 23,
1993 to the date the judgment is entered; and it is further
ORDERED, that the Clerk of the Court is also directed to
enter judgment in favor of the plaintiffs for attorneys' fees in
the sum of $151,611.00 and disbursements in the sum of $2,098.68.
The Clerk of the Court is then directed to close this case.
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