United States District Court, Eastern District of New York
December 12, 2002
TONIA CUSH-CRAWFORD, PLAINTIFF,
ADCHEM CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
MEMORANDUM OF DECISION AND ORDER
In this case, the plaintiff Tonia Cush-Crawford ("Cush-Crawford" or the
"plaintiff") brought an action against the defendant Adchem Corporation
("Adchem" or the "defendant") alleging that the defendant sexually
harassed her in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e ("Title VII"). A jury returned a verdict in favor
of the plaintiff on her claim for sexual harassment-hostile work
environment and awarded her zero dollars in actual damages and $100,000
in punitive damages. The defendant appealed the judgment entered in favor
of the plaintiff and the plaintiff cross-appealed the judgment insofar as
no actual damages were awarded. The Second Circuit affirmed the judgment
in its entirety.
Presently before the Court is the plaintiff's application for appellate
On January 30, 1998, the plaintiff filed a complaint against the
defendant in the Eastern District of New York. The complaint alleged
claims of sexual harassment-hostile work environment; quid pro quo sexual
harassment; and retaliation in violation of Title VII. On February 1,
2000, a jury found in favor of the plaintiff on her sexual
harassment-hostile work environment claim and awarded her zero dollars in
actual damages and $100,000 in punitive damages. However, the jury found
in favor the defendant on the quid pro quo and retaliation claims.
The defendant then moved for judgment as a matter of law on the hostile
work environment claim and the punitive damage award. The plaintiff
cross-moved for a new trial on the monetary damage issue and sought an
award of attorneys' fees. This Court denied both motions for a new trial
in their entirety and awarded the plaintiff $54,052 in attorneys' fees
and $2,026 in costs.
The defendant appealed the judgment entered in favor of the plaintiff
and the plaintiff cross-appealed insofar as no actual damages were
awarded. On November 16, 2001, the Second Circuit affirmed the judgment
in its entirety. Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir.
On May 3, 2002, the defendant moved in this Court for an order
directing the plaintiff to execute and deliver a satisfaction of judgment
to the defendant and directing the plaintiff to pay for the costs and
attorneys' fees incurred in bringing the motion. On May 16, 2002, counsel
for the plaintiff provided the defendant with a satisfaction of judgment
which stated in relevant part:
WHEREAS, the judgment of the Honorable Arthur D.
Spatt, District Court Judge, was entered in the
above-entitled action on May 1, 2002 [sic] in the
U.S. District Court for the Eastern District of New
York in favor of the Plaintiff, TONIA CUSH-CRAWFORD,
and against the Defendant, ADCHEM CORP., for the sum
of $100,000.00, $54,052 in attorney's fees and $2,206
in cost plus interest and said judgment has been fully
paid and satisfied (This satisfaction does not include
legal fees incurred in the U.S. Court of Appeals) . . . .
On May 17, 2002, the Court heard argument on the defendant's motion to
compel the plaintiff to deliver a satisfaction of judgment. After hearing
both sides, the Court stated that the plaintiff is not required to
provide an unconditional satisfaction of judgment because the issue of
appellate attorneys' fees remains outstanding. As to the appellate
attorneys' fees, the Court set the following motion schedule: the
plaintiff to file her motion by May 31, 2002; the defendant to oppose by
June 14, 2002; and the plaintiff to reply by June 21, 2002.
On June 3, 2002, the plaintiff filed an affirmation in support of her
motion for appellate attorneys' fees. On June 14, 2002, the defendant
filed an opposition. On June 26, 2002, the plaintiff filed her reply.
A. The Decision to Award Appellate Attorneys' Fees in the First Instance
Because the award of attorneys' fees may involve extensive factfinding
and a large degree of discretion, a district court generally decides this
issue in the first instance. Mikes v. Straus, 274 F.3d 687,
704 (2d Cir. 2001) (citing Dague v. City of Burlington, 976 F.2d 801, 803
(2d Cir. 1992), rev'd in part on other grounds, 505 U.S. 557, 112
S.Ct. 2638 (1992)); Woe v. Cuomo, 729 F.2d 96, 108 (2d Cir. 1984) (stating
that the issue of appellate attorneys' fees in an action challenging the
constitutionality of care given to involuntarily committed mental
patients in state hospital is more appropriately left to the discretion of
the district court). Indeed, the Second Circuit has stated that:
[B]arring unusual circumstances, when questions are
presented such as the amount of recovery, the extent
to which a plaintiff is a prevailing party, and what
if any adjustment is to be given for delay in
payment, determination of a reasonable attorney's fee
under the fee-shifting statutes should normally be
decided by the district court in the first instance.
Dague, 976 F.2d at 803. The rationale is that a district court is in a
more appropriate position to decide the factual disputes involving a
claim for attorneys' fees. Id. On the other hand, an appellate court is
designed "to review for errors of law or abuse of discretion." Id.
In this case, the plaintiff seeks appellate attorneys' fees under Title
VII. See 42 U.S.C. § 2000e-5(k). Under the reasoning in Dague, the
Court is responsible for deciding the issue of appellate attorneys' fees
in the first instance.
B. The Timeliness of the Application for Attorneys' Fees
The defendant argues that the plaintiff must apply for appellate
attorneys' fees in compliance with Rule 54(d)(2)(B) of the Federal Rules
of Civil Procedure, and thus, the plaintiff was required to file and
serve the instant application within 14 days of the entry of final
judgment. The plaintiff responds that Rule 54 does not apply and that she
was required to apply for appellate attorneys' fees within a reasonable
period of time.
The Court finds that a prevailing party must seek appellate attorneys'
fees in a Title VII action within a reasonable period of time after the
circuit's entry of final judgment. This decision is based on the
following analysis. First, Title VII has no specific limitation period
for seeking attorneys' fees at the trial or the appellate levels. See
42 U.S.C. § 2000e-5(k). Second, neither the Federal Rules of
Appellate Procedure nor the Local Rules of the Second Circuit provide a
specific limitation period to apply for appellate attorneys' fees. Third,
the Second Circuit has not addressed the issue of what time period
governs the application for appellate attorneys' fees under Title VII.
Fourth, district courts within the Second Circuit have apparently not
addressed that issue. Because there is no statute, rule or binding case
within this circuit that precisely instructs on the specific limitations
period for seeking appellate attorneys' fees, the Court looks to other
jurisdictions for guidance.
The Court finds Environmental Defense Fund, Inc. v. Environmental
Protection Agency, 672 F.2d 42 (D.C. Cir. 1982) persuasive on the
timeliness of an application for appellate attorneys' fees. There, the
plaintiff moved for appellate attorneys' fees under the Toxic Substances
Control Act (the "TSCA"). 672 F.2d at 61. An intervenor objected claiming
that the plaintiff failed to comply with the 14 day limitations period
under Rule 39(c) of the Federal Rules of Appellate Procedure and thus
failed to timely seek attorneys' fees. Id. The court rejected that
argument noting that Rule 39 applied to costs, not attorneys' fees. Id.
Also, the court noted that the TSCA provides no specific time limitations
period for seeking attorneys' fees;
the TSCA states only that the court
may award attorneys' fees "`if [it] determines that such an award is
appropriate.'" Id. Based on that discretionary language, "a court has
discretion to consider the reasonableness of attorneys' fees claims and,
if `appropriate' (considering traditional equitable principles), to
reject claims as untimely filed." Id.
Title VII is similar to the TSCA on the issue of attorneys' fees. For
example, Title VII has no specific limitation period for seeking
attorneys' fees. Title VII also gives a district court considerable
discretion in awarding attorneys' fees. To allow a prevailing party a
reasonable period of time after the entry of the circuit's final
judgment, as in Environmental Defense Fund, is fair considering that
Title VII and the applicable appellate rules do not provide a specific
Also, there is no authority for the defendant's contention that
Rule 54 applies to applications for appellate attorneys' fees. That rule applies
to applications for attorneys' fees incurred at the trial level. In
addition, counsel for the defendant's Rule 54 argument is inconsistent
with what was told to the Court at the May 17, 2002 hearing — a
prevailing party must make a motion for appellate attorneys' fees within a
reasonable period of time. See Cush-Crawford, No. 98-676, at 6 (E.D.N.Y.
May 17, 2002) (advising that a motion for appellate attorneys' fees must
be made within a reasonable time in the Second Circuit).
In this case, the Court finds that the plaintiff moved for appellate
attorneys' fees within a reasonable period of time after the entry of the
Second Circuit's final judgment on November 16, 2001. From that date, the
defendant had until February 14, 2002 to seek review in the Supreme
Court. On February 28, 2002, the defendant satisfied the judgment entered
by this Court. However, the issue of appellate attorneys' fees remained
outstanding. On May 17, 2002, the Court set a motion schedule for the
plaintiff to move for appellate attorneys' fees. On June 3, 2002, the
plaintiff filed her motion for appellate attorneys' fees. It was only two
months after the defendant's right to seek review in the Supreme Court
had elapsed that the plaintiff stated that she desired to seek appellate
attorneys' fees. And, it was less than two months after the defendant
satisfied the judgment of this Court. This period of time is not
unreasonable considering the parties had been negotiating as to the
amount of appellate attorneys' fees after the defendant satisfied the
Court's judgment. See Environmental, 672 F.2d at 61 (finding an
application for attorneys' fees made nine months after the close of
C. The Entitlement to Appellate Attorneys' Fees
Title VII provides in pertinent part: "[i]n any action or proceeding
under this subchapter the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee (including expert fee)
as part of the costs . . . ." 42 U.S.C. § 2000e-5(k). The defendant
argues that the plaintiff is not a prevailing party because she was
unsuccessful on her cross-appeal for a new trial on the issue of actual
damages. In reply, the plaintiff contends that she is a prevailing party
because she won the ultimate outcome of the appeal.
A litigant is a prevailing party when she has "`received actual relief
on the merits of h[er] claim . . . .'" Gierlinger v. Gleason, 160 F.3d 858,
880 (2d Cir. 1998) (citing Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct.
566 (1992)). A litigant should not be denied attorneys' fees for hours
spent "on interim stages of the case in which a ruling was made in favor
of the party against whom she
ultimately prevailed." Gierlinger, 160 F.3d
at 880 (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d
Cir. 1996) (stating that a prevailing party may recover attorneys' fees
for time spent on an interlocking claim that was ultimately
In this case, the plaintiff prevailed at the circuit level. Although
she did not prevail on her cross-appeal for a new trial seeking actual
damages, the reason was that her claim was moot because Title VII caps
damages at $100,000 in cases of employers with more than 100 and less
than 201 employees, as in this case, and the $100,000 punitive damage
award was affirmed. Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359-360
(2d Cir. 2001). However, the plaintiff is a prevailing party because the
Second Circuit affirmed the $100,000 punitive damage award.
D. The Calculation of the Attorneys' Fees
In calculating attorneys' fees, the court uses the "lodestar" method.
See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,
478 U.S. 546, 565, 106 S.Ct. 3088 (1986). Under that 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. Eckerart, 461 U.S. 424, 433, 103 S.Ct. 1933 (1983);
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763-764 (2d Cir. 1998);
Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir. 1997). If the court
finds that certain claimed hours are excessive, redundant, or otherwise
unnecessary, it should exclude those hours from its lodestar
calculation. Luciano, 109 F.3d at 116. After 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 & n. 9, 103 S.Ct. 1933 (citation
The hourly rate 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, 1547 n. 11 (1984)).
In determining the lodestar figure, the "community" to which the district
court should look is the district in which the court sits. Cruz v. Local
Union Number 3 of the Int'l Bhd. Of Elec. Workers, 34 F.3d 1148, 1159 (2d
In this case, the plaintiff's counsel rate of $350 per hour is
excessive. See Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d.
Cir. 1998) (upholding the rates of $200 for partners, $135 for
associates, and $50 for paralegals are reasonable rates for legal
services in the Eastern District). The Court finds that $250 for
partners, $75 for law clerks and $50 for paralegals are reasonable hourly
rates considering the previous rates upheld by the Second Circuit, the
cost of inflation and the type of appellate work involved.
Plaintiff's counsel spent roughly 104 hours from the date that the
defendant filed its notice of appeal until the Second Circuit's
decision. In addition, her law clerks and paralegal spent about 58 hours
during this time. A review of those records indicate that the time spent
was reasonable and not excessive. First, the records document specific
work on the appeal that was necessary and proper. Second, the amount of
time is reasonable considering that the appeal involved an issue of first
impression in the Second Circuit.
Based on the above-noted findings, the initial lodestar calculation is
Attorney: 104 hours at $250 per hour = $26,000.00
Law Clerk: 58 hours at $75 per hour = $4,350.00
Paralegal: .17 hours at $50 per hour = $8.50
Having decided the initial lodestar calculation, the Court now decides
whether an upward or downward adjustment is 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 & n. 9, 103 S.Ct. 1933
(citation omitted). Because the plaintiff was unsuccessful in her
cross-appeal, the Court reduces the lodestar figure by ten percent.
Accordingly, the Court awards the plaintiff attorneys' fees in the total
sum of $27,322.65.
Based upon the foregoing, it is hereby
ORDERED, that the plaintiff's application for appellate attorneys' fees
is GRANTED; and it is further
ORDERED, that the plaintiff is awarded attorneys' fees in the total sum
of $27,322.65; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
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