MEMORANDUM-DECISION AND ORDER
This action was brought pursuant to the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. § 621-34. Plaintiff Carmen
LaPorta ("LaPorta" or plaintiff) has made a post-trial
application for 1) pre-judgment and post-judgment interest, 2)
attorneys fees, costs, and disbursements, 3) adoption of the
jury's award of front pay, and 4) a judgment that defendant
General Electric Company ("GE") willfully violated the ADEA as a
matter of law. GE does not oppose plaintiffs motion for
pre-judgment and post-judgment interest; however, it does oppose
plaintiffs remaining requests. Oral argument was heard on May
11, 2001 in Utica, New York. Decision was reserved.
Plaintiffs John Hogan ("Hogan") and David Rees ("Rees") filed
an age discrimination charge with the Equal Employment
Opportunity Commission ("EEOC") in July 1996, alleging that GE
violated the ADEA when it conducted an involuntary reduction in
force in July 1995. The EEOC issued right to sue letters in
December 1996. Hogan and Rees then commenced this action,
asserting claims under the ADEA and the New York State Human
Rights Law, ("HRL"), N.Y. Exec. Law § 296(6) (McKinney 1993 &
Supp. 2000). Plaintiffs LaPorta and William Sheehan ("Sheehan")
joined the action in June 1998 as "opt-in" plaintiffs under the
Fair Labor Standards Act, 29 U.S.C. § 216(b). Following
discovery and motion practice, each plaintiffs claims of
disparate impact and disparate treatment age discrimination and
Hogan and Rees' HRL claims proceeded to trial.*fn1
On March 28, 2001, after a thirteen day jury trial, the jury
found in favor of LaPorta on his disparate treatment age
discrimination claim. However, the jury found in favor of GE
with respect to 1) the plaintiffs' common claim of disparate
impact age discrimination, 2) Hogan's, Rees', and Sheahan's
disparate treatment claims, and 3) Hogan's and Rees' HRL claims.
The jury awarded LaPorta $117,000 lost back pay and issued an
advisory verdict of front pay in the amount of $110,000 payable
over seventeen years.
A. Pre-judgment and Post-judgment Interest
Plaintiff seeks, and defendant does not oppose, an award of
pre-judgment interest on his back pay award, pursuant to
29 U.S.C. § 626(b). "In an ADEA case, prejudgment interest is
designed to compensate the plaintiff for loss of the use of
money wrongfully withheld through an
unlawful discharge." Reichman v. Bonsignore, Brignati &
Mazzotta, P.C., 818 F.2d 278, 281 (2d Cir. 1987).
Determining the rate to apply for pre-judgment interest is a
matter left to the discretion of the district court. See Endico
Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071
(2d Cir. 1995). When calculating pre-judgment interest, courts
in the Second Circuit "often apply the rate of interest provided
in 28 U.S.C. § 1961." Robinson v. Instructional Sys., Inc.,
80 F. Supp.2d 203, 208 (S.D.N.Y. 2000) (citations omitted).*fn2
The plaintiff requests that pre-judgment interest be calculated
according to § 1961. The defendant does not oppose.
The appropriate methodology to calculate the amount of
pre-judgment interest involves three steps. "First, the award
should be divided pro rata over the appropriate time period."
Id. Second, the rate of interest referred to in § 1961 is
applied. Id. Finally, the interest is compounded annually.
In the present case, at the first step, the back pay award of
$117,000 is divided by 70 months (July 1995 through May 2001).
This results in $1,671.43 per month or $20,057.14 per year in
back pay. The rate of interest according to the most recent
publication by the Board of Governors of the Federal Reserve
System is 3.76 percent. See Federal Reserve Statistical
Release, Selected Interest Rates, at
http://www.federalreserve.gov/releases/H15 (May 21, 2001).
Applying this rate and compounding the interest annually results
in an award of $15,930.01 in prejudgment interest.*fn3 In
addition, the judgment shall reflect a post-judgment interest
rate of 3.76 percent, pursuant to § 1961.
B. Attorneys Fees
"The starting point for the determination of a reasonable fee
is the calculation of the lodestar amount." Quaratino v.
Tiffany & Co., 129 F.3d 702, 705 (2d Cir. 1997) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983)). The lodestar amount is calculated by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate. See Blanchard v.
Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67
(1989). "In determining the number of hours reasonably expended
for purposes of calculating the lodestar,
the district court should exclude excessive, redundant or
otherwise unnecessary hours, as well as hours dedicated to
severable unsuccessful claims." Quaratino, 129 F.3d at 705.
However, attorney's fees may be awarded for unsuccessful claim
as well as successful ones where they are "`inextricably
intertwined' and `involve a common core of facts or are based on
related legal theories.'" Reed v. A.W. Lawrence & Co.,
95 F.3d 1170, 1183 (2d Cir. 1996) (quoting Dominic v. Consolidated
Edison Co., 822 F.2d 1249, 1259 (2d Cir. 1987). "Once the
lodestar amount is calculated, there is a strong presumption
that this figure constitutes a reasonable amount." Fauntleroy
v. Staszak, 3 F. Supp.2d 234, 236 (N.D.N.Y. 1998) (citing Grant
v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992); City of
Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d
LaPorta seeks $319,607.00 in attorneys' fees and $9,094.74 in
costs and disbursements, for a total of $328,701.74.*fn4 GE
argues that the amount of attorneys' fees requested should be
drastically reduced for several reasons. GE challenges the use
of two attorneys for certain matters where it contends one
attorney would have been sufficient. However, the Second Circuit
has held that there is no per se rule against the use of
multiple attorneys; however, the district court has discretion
to decline to compensate or limit the compensation of
collaborating attorneys. See New York State Ass'n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983). In
light of the complexity of this case and the fact that LaPorta
was suing GE, a large company with significant resources at its
disposal, the use of two attorneys was not unnecessary or
GE argues that plaintiffs fee application includes time
attributable to the other three unsuccessful plaintiffs,
LaPorta's unsuccessful claims, and work done when LaPorta was
not yet a party to the case. It also asserts that LaPorta is not
entitled to fees for unnecessary motions. Plaintiffs time
records have been thoroughly reviewed and the following can be
deduced: Some claims for research and preparation are excessive
and certain motion practice was unnecessary. In addition, the
rates of $90.00 and $100.00 for the services of one of the
paralegals is excessive when compared to the $50.00
and $60.00 billed for the two other paralegals. As a result,
adjustments have to be made to determine a reasonable amount for
attorneys' fees. Accordingly, upon extensive review of the
records submitted by the plaintiff in support of his application
for attorneys' fees and the arguments of counsel for both sides,
it is determined that plaintiff is entitled to the following
Year Reasonable Rate Allowance
Attorneys 1996-1997 250 $150.00 $37,500.00
1998-2001 1,400 $170.00 $238,000.00
Paralegals 1996-1997 35 $50.00 $1,750.00
1998-2001 135 $60.00 $8,100.00
Total 1,820 $285,350.00
C. Costs and Disbursements
Prevailing parties may also recover, in addition to reasonable
attorney's fees, litigation costs and expenses. O'Grady v.
Mohawk Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988,
at *7 (N.D.N.Y. Jan. 15, 1999). This award may include taxable
costs, pursuant to 28 U.S.C. § 1920 as well as "all reasonable
out-of-pocket expenses that are normally charged to clients."
Id.; see also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763
(2d Cir. 1998). However, these expenses "must not be part of
ordinary overhead." Id.
Plaintiffs application seeks $9,094.74 for costs and expenses.
GE objects to the following items sought by the plaintiff: 1)
Service of process on defendants Stephen Hollenberg and Ronald
Pressman, 2) Travel, hotels, and meals to meet with statistical
experts, 3) Travel expenses for statistical expert, 4) Office
supplies, and 5) Rate for photocopying. Each of these objections
is addressed below.
1. Process Server
"A prevailing party will not be entitled to private process
server fees if there is no statutory authority for shifting
them." United States v. Merritt Meridian Constr. Corp.,
95 F.3d 153, 172 (2d Cir. 1996). Some courts have awarded private
process server costs pursuant to 28 U.S.C. § 1920(1), which
provides that the fees of the Clerk and Marshal may be taxed as
costs. See Alflex Corp. v. Underwriters Labs., Inc.,
914 F.2d 175, 177-78 (9th Cir. 1990); Tang How v. Edward J. Gerrits,
Inc., 756 F. Supp. 1540, 1545 (S.D.Fla. 1991), aff'd,
961 F.2d 174 (11th Cir. 1992). However, the plain language of § 1920 does
not authorize taxing the fees of private process servers as
costs. See Merritt Meridian Constr. Corp., 95 F.3d at 172.
Accordingly, defendant's request to exclude plaintiffs fee of
$75.00 for service of process on defendants Hollenberg and
Pressman is granted.
2. Travel Expenses
The amount LaPorta seeks to recover for his attorneys to meet
with the statistical expert appears reasonable and is
recoverable. See Thomas v. Board of Educ., 505 F. Supp. 102,
105 (N.D.N.Y. 1981). In addition, reasonable travel expenses for
witnesses are taxable as costs pursuant to 28 U.S.C. § 1920.
See 28 U.S.C. § 1821(4). However, although plaintiffs
application requests $122.90 in expenses for his expert, the
receipts submitted only establish expenses of $97.90. Therefore,
$25.00 must be deducted from
plaintiff's application for costs and disbursements.
3. Office Supplies
Plaintiff seeks reimbursement in the amount of $191.61 for
trial binders and indexes. However, such expenses are more
appropriately considered ordinary overhead. Accordingly, this
expense will be deducted from plaintiffs application.
4. Photocopying Expenses
Section 1920(4) allows fees for "exemplification and copies of
papers necessary obtained for use in the case" to be taxed as
costs. However, the rate of $.25 per page claimed by the
plaintiff is excessive. Therefore, the rate charged for
photocopies will be reduced to $.10 per page, resulting in a
deduction of $859.20 from plaintiffs application.
In sum, plaintiffs application for costs and disbursements
will be reduced by a total of $1,150.81, resulting in a total
award of costs and disbursements in the amount of $7,943.93.
D. Front Pay
LaPorta requests that the jury's advisory verdict regarding
front pay be adopted. The parties agree that any front pay
awarded must be reduced to present value at a discount rate of
5.54 percent, however, GE argues that the evidence does not
support the amount of front pay awarded by the jury. It contends
that LaPorta should be entitled to only one year of front pay
because the evidence demonstrated that he intended to retire at
the age of 65, which is in January 2002 and after that, he
receives a pension from GE and his current employer which will
equal what he would have received from GE. However, there was
evidence presented at trial that there is a difference between
the amount LaPorta will receive from his pensions from GE and
his current employer and what his GE pension would have been had
he not been terminated. The jury's advisory front pay award
reasonably reflects that difference. Therefore, the jury's
advisory verdict that LaPorta is entitled to front pay in the
amount of $110,000 over seventeen years will be adopted.
Reducing the front pay award to present value at a discount rate
of 5.54 percent results in a total front pay award of
E. Willful Violation of the ADEA
Plaintiffs request for judgment as a matter of law that GE
willfully violated the ADEA is premature and more appropriately
the subject of a motion pursuant to Fed.R.Civ.P. 50(b) after
judgment is entered. Therefore, plaintiff's request is denied
without prejudice to renew.
Accordingly, it is
1. All claims by plaintiffs John J. Hogan, David J. Rees, and
William Sheehan are DISMISSED;
2. Plaintiff Carmen LaPorta's disparate impact claim pursuant to
the Age Discrimination in Employment Act and his New York State
Human Rights Law claim are DISMISSED;
3. Judgment shall be entered in favor of plaintiff Carmen
LaPorta against defendant General Electric Company with respect
to his disparate treatment claim pursuant to the Age
Discrimination in Employment Act in the amount of $470,208.69
which represents the following:
a. Back pay in the amount of $117,000.00
b. Pre-judgment interest in the amount of $15,930.01
c. Attorney's fees in the amount of $285,350.00
d. Costs and disbursements in the amount of $7,943.93
e. Front pay in the amount of $43,984.75
4. Post-judgment interest shall accrue from the date judgment is
entered at the rate of 3.76 percent;
5. Plaintiff Carmen LaPorta's motion for judgment as a matter of
law with respect to his claim that defendant General Electric
Company willfully violated the ADEA is DENIED without prejudice
to renew; and
6. Post-trial motions pursuant to Fed.R.Civ.P. 50 and 59 shall
be filed on or before June 8, 2001; responses must be filed on
or before June 22, 2001 and replies must be filed on or before
June 29, 2001. No extensions are permitted. All post-trial
motions in this matter are returnable on July 6, 2001 at 10:00
a.m. in Utica, New York.
The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.