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PETROVITS v. NEW YORK CITY TRANSIT AUTHORITY

January 6, 2004.

JOAN PETROVITS Plaintiff, -against- NEW YORK CITY TRANSIT AUTHORITY, Defendant


The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge

OPINION AND ORDER ON FEES AND COSTS
On January 30, 2003, this case was assigned to me pursuant to 28 U.S.C. § 636(c). Plaintiff alleged that, because she was a woman, her employer denied her a promotion. She said that the denial occurred in two ways:

  (a) one position, the subject of a Job Vacancy Notice, was awarded in March 1994 to a man rather than to her; and

  (b) in 1992 through 1996, the defendant: awarded a Promotion In Place ("PIP") to 277 employees in its Capital Program Management Department, and 6 were in her division and 2 of them received a PIP to the very title she was seeking, and yet she never received a PIP.

  On June 16, 2003, after a six-day trial, the jury found that (a) plaintiff did not prove that intentional sex discrimination was a motivating factor in the March 1994 decision, and (b) she did prove that, beginning on January 1, 1996, it was a motivating factor in the failure to give her a PIP. (Tr. 863.) The jury awarded plaintiff $150,000 for emotional distress. On July 31, I awarded back pay of $14,413, and ordered the defendant to increase plaintiff's salary and pension calculations in modest amounts.

  The defendant's maximum exposure in this lawsuit was never much greater than the resulting judgment, plus "a reasonable attorney's fee (including expert fees) as part of the costs." U.S.C, 2000e-5(k). Despite the relatively modest maximum exposure, the defendant litigated this case to the hilt, vastly increasing the time spent by the attorneys for both sides. Page 2 very little happened during the next year, until she contacted Laura Sager, a clinical professor of law at New York University and a supervising attorney with Washington Square Legal Services, Inc., the corporation that supports clinical legal education at NYU. In January 1997, Ms. Sager entered a notice of appearance as attorney for plaintiff, and requested the Court to authorize certain of her students to appear in court or other proceedings and to prepare documents on behalf of plaintiff. Judge Batts signed her consent.

  The case was reassigned to me on January 30, 2003. I quickly became aware that Ms. Sager had been using her students to perform significant portions of work under her supervision — signing many of the submissions to Judge Batts and asking the questions at depositions. On March 3, I set a firm trial date of June 9. Since the trial would occur outside the school year, Ms. Sager arranged for one attorney to be her co-counsel, Alexander Reinert. (He had been a student in the NYU Clinic, but had never worked on this case.) He entered a notice of appearance on May 27, 2003.

  On October 27, after winning her case and defeating a post-trial motion, plaintiff served an application for fees and costs. On November 26, defendant served massive opposing papers. On December 19, plaintiff served reply papers. On December 31, defendant served a sur-reply.

  Defendant objects particularly to the amount of hours claimed by Ms. Sager during the periods when she had students working for her. The parties have cited two pertinent precedents in the Southern District concerning fee awards for clinical professors and their students.

  In Gavin-Mouklas v. Information Builders, Inc., 1999 WL 728636 (S.D.N.Y. Sept. 17, 1999), the plaintiff obtained a $55,000 settlement after discovery. Ms. Sager submitted complete time sheets for herself (289 hours) and her students (1,794 hours), but requested payment for only about 50% of her hours and about 20% of the students' hours. Judge Preska made large further reductions based on her analysis of eight different litigation tasks. In that case, the most time-consuming task had been the depositions of defendant's witnesses. For each of the five depositions, Judge Preska gave a student questioner full credit (at an hourly rate of $90) for the time spent at the deposition, but gave Ms. Sager only about 10% credit for her time (at $200), even though Ms. Sager had been in attendance throughout each deposition. Page 3

  In Moon v. Kwon, 2002 WL 31512816 (S.D.N.Y. Nov. 8, 2002), the plaintiff obtained a $442,160 verdict after a bench trial. Moon was represented by a team of two attorneys plus seven students from Fordham Law School. The attorneys "did not record time spent on purely instructional tasks, and cut all instructional hours from the students' time records." Id. at *4. "[T]hey then took further, substantial across-the-board discounts," asking for only 80% of their non-instructional hours, and for only 50% of the students' non-instructional hours. Judge Lynch upheld this methodology, and made only minor further reductions. The lead attorney, Kenneth Kimerling, states: "Although the students took and defended the depositions, I included my time in assisting them in the preparations and my time at the depositions." (¶ 7 of Exh. 5 to Sager Reply Decl.) In short, for each of the depositions, Judge Lynch awarded 50% of one student's questioning time (at $80) plus 80% of Mr. Kimerling's attendance time (at $350). The net result was far more generous than Judge Preska's award for the depositions in Gavin-Mouklas.

  In the case at bar, Ms. Sager chose not to request payment for any of her students' time. As for her own time records, she redacted "time that I spent instructing or supervising the students." (Sager Oct. 27 Decl. ¶ 5.) Her initial application did not submit the students' time sheets, or the redacted portions of her time sheets. If defendant wanted to see those, it could have simply asked her for them on October 27. Instead, in its November 26 brief, defendant excoriated her for "not submitting the students' time records, which would reveal the full extent of their work on the case and demonstrate that Sager devoted her time almost exclusively to supervision and instruction." (Def. Mem. at 14, n. 13.)

  Ms. Sager's Reply Declaration then submitted the students' time sheets (Exh. 1) and her unredacted time sheets (Exh. 2). These show that:
1. Twelve students logged 1,296 hours on this case; time sheets for five more students could not be located.
2. The student help ceased on April 30, 2003, six weeks before the trial. (After the trial, two students gave some minor help on the post-trial motions.)
  3. From November 26, 1996 through April 30, 2003, Ms. Sager logged 616.0 hours. Her initial application redacted 203.5 of those hours, because the time sheet notations showed that 203.5 hours and devoted to supervision. Page 4 and instruction. This amounted to a reduction of 33%.

 Nevertheless, defendant asked for permission to submit a sur-reply, which I allowed.

  Defendant's sur-reply begins by rehashing its complaint that Ms. Sager's initial fee application failed to mention that the students had done the questioning at the depositions. However, I had become aware of that fact soon after this case was reassigned to me. Moreover, Ms. Sager's initial fee application directed my attention to Gavin-Mouklas, which discussed her practice of attending depositions but having her students question the witnesses.

  Defendant has compared Ms. Sager's time sheets in Gavin-Mouklas and in the case at bar, and makes two points.

  Point One. In Gavin-Mouklas, in connection with preparation for five depositions in 1998, all of Ms. Sager's time is expressed in terms of meeting with students or reviewing their deposition outlines. In the case at bar, there are similar entries (for which she seeks no payment), but there are also entries showing her working "directly" on preparation of the ten depositions in 1997. I assume the sur-reply (at p. 4) is referring to her entries for "Dep prep" during April 8-22, 1997, entries that add up to 21.3 hours. But those entries should be read in context with three of the immediately preceding entries (Sager Reply Decl. Exh. 2, p. 4):
3/29/97 Start reading 1000-page document; production from def. 1.5
4/1/97 Continue reading docs, analyze what is missing. 2.0
4/3/97 Receive and review additional 700 pages of docs from def — analyze pages missing. 1.8
In 5.3 hours, she did not finish her review of 1,700 pages. It is clear enough to me that, during the contested 21.3 hours, Ms. Sager was ...

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