downward adjustments for the jury's verdict in favor of defendants as to
two plaintiffs and the settlement of the claims of eight other
plaintiffs. Defendants, therefore, seek the downward adjustment here
solely on the ground of the jury's rejection of the disparate treatment
The lodestar figure may be adjusted downward where a plaintiff
prevailed on certain claims but not on others. However, no reduction on
this ground should be made "if the successful and unsuccessful claims are
`inextricably intertwined' and `involve a common core of facts or [are]
based on related legal theories.'" Reed v. A.W. Lawrence & Co., Inc.,
95 F.3d 1170, 1183 (2d Cir. 1996) (quoting Dominic v. Consolidated Edison
Co., 822 F.2d 1249, 1259 (2d Cir. 1987)); Hogan, 144 F. Supp.2d at 141;
Tanzini, 978 F. Supp. at 83. Thus, "[s]o long as the plaintiff's
unsuccessful claims are not `wholly unrelated' to the plaintiff's
successful claims, hours spent on the unsuccessful claims need not be
excluded from the lodestar amount." Lunday v. City of Albany, 42 F.3d 131,
134 (2d Cir. 1994) (quoting Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.
The determination whether successful and unsuccessful claims bear a
sufficiently close relationship that no downward adjustment for limited
success should be made is necessarily informed by the facts of each
case. However, courts have held in other cases that, for example, claims
of age discrimination and retaliatory discharge were inextricably
intertwined, see Dominic, 822 F.2d at 1259; claims of sexual harassment,
sex discrimination, retaliation and age discrimination were inextricably
intertwined, Greenbaum v. Svenska Handelsbanken, N.Y., 998 F. Supp. 301,
306 (S.D.N.Y. 1998); and claims of a failure to promote and wrongful
termination, both based on age and disability discrimination, were
inextricably intertwined. Tanzini, 978 F. Supp. at 84.
Here, plaintiffs' claims of age discrimination were asserted on the
alternative theories of disparate treatment and disparate impact. The two
theories are closely related. Moreover, the preparation and trial on the
two theories involved the discovery and testimony of virtually all the
same witnesses regarding how the individual plaintiffs were treated in
the IRIF and whether there existed reasonable alternatives to the IRIF.
Moreover, plaintiffs' claim that defendants acted willfully involved
virtually identical evidence under either theory. Given the inherently
close relation of the two theories, the fact that the evidence concerning
the two theories substantially overlapped in this case and the "common
core of facts" underlying the two theories, it cannot be said that the
two theories were wholly unrelated.
Nevertheless, to a minimal degree the preparation and trial of the two
theories required plaintiffs' counsel to devote time to the unsuccessful
disparate treatment theory. A reduction of ten percent to account for
such time appears appropriate. See Greenbaum, 998 F. Supp. at 307
(reducing fee by ten percent where successful and unsuccessful claims
inextricably intertwined); Dailey, 915 F. Supp. at 1331 (reducing
lodestar figure by ten percent). Thus, the lodestar figure will be
reduced on this ground by $97,096.46.
For the reasons set forth above, plaintiffs are awarded attorneys' fees
in the total amount of $873,868.09.
Plaintiffs also move for an order awarding them costs totaling
$58,469.37 incurred in the litigation of this case. Pls. Mem. of Law at
6. As prevailing parties, plaintiffs are entitled to recover taxable
costs pursuant to 28 U.S.C. § 1920
and "all reasonable out-of-pocket
expenses that are normally charged to clients." O'Grady v. Mohawk
Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988, at *7 (N.D.N.Y.
Jan. 15, 1999) (Scullin, J.); see also LeBlanc-Sternberg v. Fletcher,
143 F.3d 748, 763 (2d Cir. 1998); Hogan, 144 F. Supp.2d at 143. Ordinary
overhead expenses are not recoverable. LeBlanc-Sternberg, 143 F.3d at
763. Whether a particular item constitutes ordinary overhead or an
awardable cost depends on whether the item is one normally absorbed
within the attorney's fee or separately charged to a client. See id.
Defendants challenge various costs claimed by plaintiffs.
a. Fees for the Depositions of Defendants' Experts
Plaintiffs seek a total of $7,350.00 for fees paid to defendants' two
expert witnesses as fees for their depositions. DuCharme Aff., Ex. F at
4. Such costs are those incurred in obtaining discovery, such as the
costs of a stenographer or a witness' travel, and are normally charged to
a client. Accordingly, plaintiffs are awarded such costs.
b. Computerized Research
Plaintiffs seek an award of $350.18 for computer research. DuCharme
Aff., Ex. F at 2-7. Such costs are not compensable on this record. See
United States ex rel. Evergreen Pipeline Constr. v. Merritt-Meridian
Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996); Tanzini, 978 F. Supp. at
85 (holding that costs of computer research not compensable "in the
absence of an hour/rate showing by plaintiff"). Accordingly, the costs
claimed by plaintiffs will be reduced by $350.18.
Plaintiffs seek $458.23*fn33 for exhibit tabs and binders. Defs. Mem.
of Law at 9 & n. 4. Such costs constitute routine office overhead and are
not compensable here. The amount of $458.23 will be deducted from the
costs claimed by plaintiffs.
Plaintiffs seek a total of $24,438.00 for photocopying 97,752 pages of
documents in this case, a rate of $.25 per page. DuCharme Aff., Ex. F at
7. Defendants challenge both the sufficiency of the documentation for
this claim and the page rate of $.25 claimed by plaintiffs. Defs. Mem. of
Law at 9-10.
Plaintiffs' description of this item states in total as follows:
"12/15/00 — Copy charge at $.25 per sheet x 97,752 sheets —
$24,438.00." No supporting documentation or affidavit describing this
claim is included. While the documents and, therefore, the photocopying
in this case was substantial, it cannot be determined from plaintiffs'
submissions whether a portion of the photocopying claimed was for the
convenience of counsel or the plaintiffs or was otherwise unnecessary to
the litigation.*fn34 Accordingly, the number of photocopies for which
plaintiffs claim reimbursement will be reduced to 75,000.
See Baker v. Power Securities Corp., 174 F.R.D. 292, 295 (W.D.N.Y. 1997)
(reducing amount claimed for photocopying costs for insufficient
Plaintiffs claim photocopying costs at the rate of $.25 per page.
Plaintiffs have submitted no supporting documentation for this rate in
the form of rates normally charged in this region for outside or
in-office copying or the rate plaintiffs' counsel normally charged its
clients for photocopying. Other courts have found photocopying rates of
$.10 per page appropriate. See, e.g., Hogan, 144 F. Supp.2d at 144;
Rodriguez ex rel. Kelly v. McLoughlin, 84 F. Supp.2d 417, 426 (S.D.N.Y.
1999); In re Towers Fin. Corp. Noteholders Litigation, No. 93CIV.0810
(WK)(AJP), 1997 WL 5904, at *1 (S.D.N.Y. Jan. 8, 1997). Multiplying
75,000 pages by $.10 yields a compensable total of $7,500.00.
Accordingly, the costs claimed by plaintiffs will be reduced by
Plaintiffs seek $515.00 for parking fees incurred by their counsel in
attending depositions and court proceedings. See, e.g., DuCharme Aff.,
Ex. F at 4-7. Defendants contend that such fees are not recoverable.
Parking fees are recoverable as litigation costs. See Kuzma v. I.R.S.,
821 F.2d 930, 933 (2d Cir. 1987) (holding that parking fees "clearly
represent the reasonable costs of litigation and are recoverable").
Accordingly, plaintiffs' claim for parking fees will be allowed.
f. Court-Ordered Payment to Defendants' Expert Witness
Before trial, a schedule was established for the parties to file
motions in limine, including any motions regarding expert witnesses.
See, e.g., Docket No. 53 (defendants' motion in limine to preclude
plaintiffs' expert witness). Plaintiffs made no such motion. During the
liability phase, defendants called Dr. Frank Landy, an industrial
psychologist, who had previously been disclosed to plaintiffs, to testify
as an expert witness. Plaintiffs' counsel for the first time moved to
preclude Dr. Landy's testimony. Dr. Landy's testimony was then postponed
to permit plaintiffs and defendants to submit briefs on the issue. Docket
Nos. 82, 83. As a consequence of their untimely motion, plaintiffs were
ordered to reimburse defendants for the costs incurred in Dr. Landy's
postponed appearance. Plaintiffs thereafter reimbursed defendants in the
amount of $4,196.26. DuCharme Aff., Ex. F at 5. Plaintiffs now claim this
payment as a cost of litigation and seek recovery. However, this cost was
incurred by plaintiffs' counsel as a result of their failure to file
their motion on time. This cost was not an ordinary litigation expense
and, because it resulted from counsel's error, could not ordinarily be
charged to a client. Accordingly, the costs claimed by plaintiffs will be
reduced by $4,196.26.
Plaintiffs claim a total of $972.96 for lodging and meals for their
counsel in traveling to New York City to defend the depositions of
plaintiffs' expert witnesses. DuCharme Aff., Ex. F at 4. Defendants
contend that this item lacks sufficient documentation. Defs. Mem. of Law
at 11. As defendants note, plaintiffs' claim simply states the total
amounts for lodging ($740.96) and meals ($232.00) for the period from May
24-29, 1999. The time records of plaintiffs' counsel indicate that these
expenses were incurred by one attorney. Id., Ex. D at 22-23. Thus,
plaintiffs' counsel paid $185.24 per night for lodging for four nights in
New York City and spent an average of $46.40 per day for five days for
meals. Neither amount is unreasonable, their documentation is sufficient
here, and plaintiffs will be allowed these costs.
h. Adjustment of Costs
As noted above, plaintiffs' claims for attorneys' fees was adjusted
plaintiffs to exclude that portion of the fees incurred on
behalf of the ten plaintiffs who previously settled their claims or who
did not prevail at trial. DuCharme Aff. at 66 6-8. It does not appear
from plaintiffs' motion that any similar exclusion was performed for the
costs claimed and that the costs claimed constitute all costs incurred in
the litigation. Defendants contend that the costs claimed should be
reduced by the portion of those costs attributable to the ten
plaintiffs. Defs. Mem. of Law at 7 n. 2. Any costs incurred on behalf of
the two nonprevailing plaintiffs are not recoverable here. It is unclear
whether the costs incurred on behalf of the eight settling plaintiffs
were included in any of their settlement agreements. In the absence of
proof that the parties agreed in those settlement agreements that
plaintiffs could seek an award for costs incurred on behalf of those eight
plaintiffs as part of this motion, plaintiffs have failed to satisfy their
burden of demonstrating entitlement to costs on behalf of those
Accordingly, after the costs claimed by plaintiffs have been reduced in
the amounts indicated above, that adjusted claim for costs must be
further reduced in accordance with the methodology utilized by plaintiffs
to exclude the attorneys' fees incurred on behalf of the ten plaintiffs.
Plaintiffs' claim for costs of $58,469.37 must be reduced as indicated
above by a total of $21,942.67, yielding an adjusted claim for costs of
$36,526.70. The methodology utilized by plaintiffs and accepted by
defendants for deducting the portion attributable to the ten plaintiffs
requires that this adjusted claim for costs be reduced by 35.71%, or
$13,043.68. DuCharme Aff. at 6 8. Therefore, plaintiffs are awarded costs
in a total amount of $23,483.02.
For the reasons stated above, it is hereby ORDERED that:
1. Defendants' motion (Docket No. 137) for:
A. Judgment as a matter of law is DENIED; and
B. A new trial or remittitur is DENIED in all
respects except as to the following:
i. Defendants' motion for a new trial on the issue
of damages for emotional distress awarded to
plaintiffs Raymond E. Adams, Clifford J.
Levendusky, Neil R. Pareene, William C. Reynheer,
Allen G. Sweet and Carl T. Woodman is GRANTED
unless such plaintiffs file and serve written
acceptances of remittitur of the emotional
distress components of their damages awards to
$125,000 each on or before March 8, 2002; and
ii. Defendants' motion for a new trial on the
issue of damages for emotional distress awarded to
plaintiffs Bruce E. Palmatier and David W.
Townsend is GRANTED unless such plaintiffs file
and serve written acceptances of remittitur of the
emotional distress components of their damages
awards to $175,000 each on or before March 8,
2. Plaintiffs' motion (Docket No. 138) for:
A. Prejudgment interest is GRANTED as to plaintiffs'
back pay awards and is DENIED in all other
B. Postjudgment interest is GRANTED; and