United States District Court, S.D. New York
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
(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
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.
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.
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
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
and instruction. This amounted to a reduction of
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
4/3/97 Receive and review additional 700 pages of
docs from def analyze pages
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 wading
through those 1,700 pages on her own (assisted by an index that was
prepared, at no charge, by the students). By contrast, in Gavin-Mouklas (a
sexual harassment case), there may not; have been a need to review so
many documents to prepare for the depositions.
Point Two. The names of three students (Dan Reynolds, Miray Gweon and
Pavani Yalamchili) were listed on plaintiff's 24-page brief opposing
defendant's summary judgment motion. (Efron Decl.
Exh. 22.) For this task, Reynolds logged 52.5 hours (and payment is
sought for none of those hours). Ms. Sager seeks payment for 46.8 hours
that she logged as "Work on SJ motion." Defendant argues that some of
this must have been mere "supervisory" time because, it asserts, "there
are no time entries identified as review or revision of the written work
prepared by Reynolds." (Sur-reply at 4.) Defendant's assertion is false.
Ms. Sager logged an additional 14.5 hours of "supervisory" time on that
brief, for which she seeks no payment, namely:
4/7/00 Team meeting re opposing summary judgment,
discuss def's brief and assignmts 2.0
4/18/00 Team meeting re progress on research and
4/24/00 Team meeting re progress on all sections.
1.5 Meet with Pavani re statistics
4/27/00 Team meeting current status, to-do list for
final production .5 Meet with Dan re brief
1.5 Meet with Miray re PIP section, her
declaration and exhibits 1.0
4/28/00 Meet with Dan re brief 2.0 Meet with Miray
4/29/00 Meet with Dan re brief 1.0
4/30/00 Meet with Miray re final version of her
decl and exhibits 1.0
Ms. Sager's Reply Declaration, at ¶ 16, says: ". . . I often draft
outlines or initial drafts of documents on which the students will work
even before, or at the same time, as they are working on the task." For
example, I accept that Ms. Sager was doing her own legal research and
outlining for some 9.0 hours during April 12-17, 2000. This enabled her
to evaluate how accurate the students' drafts were, and also to serve the
client in a reasonable and professional manner.
Having examined the time sheets, I find that the integrity of Ms. Sager
and of her time sheets is unimpeached.
Reasonable Hourly Rates
The law in this area is well stated by Judge Lynch in Moon at *2-3. He
set a rate of $250 per hour for Elizabeth Cooper, who had four years of
full-time practice experience and then eight years of. experience as a
full-time clinical law professor
at Fordham. I find that the same rate is a reasonable rate for Ms.
Sager. She has had a one-year clerkship in the Central District of
California, and three years as a litigation associate at Beldock Levine
& Hoffman, and 29 years as a full-time clinical professor at NYU. I
acknowledge that her experience is greater than Ms. Cooper's. On the
other hand, I note that this was Ms. Sager's first trial since 1985. I
found her work to be of good quality, but I find that she does not
exhibit the speed and efficiency of a lawyer who would command a higher
Alexander Reinert entered this case four years after he graduated from
law school. He was a powerful co-counsel; indeed, the outcome might have
been different were it not for his closing argument to the jury. He has
far fewer years of experience than Ms. Sager, but it is experience of the
highest value. At NYU Law School, he was a Notes Editor on the Law
Review. With one other student, and under the supervision of Ms. Sager's
colleague Claudia Angelos, Mr. Reinert litigated a four-day jury trial
before Judge Casey, obtaining a plaintiff's verdict in a prisoners'
rights case. From July 1999 to July 2000, he was a law clerk to Chief
Judge Harry Edwards of the District of Columbia Circuit. From July 2000
to July 2001, he was a law clerk to Justice Stephen Breyer of the U.S.
Supreme Court. Since November 2001, he has been an associate at Koob
& Magoolaghan, a Manhattan law firm with strong expertise in
employment discrimination cases. I find that the reasonable rate for his
services is $225 per hour.
Reasonable Number of Hours
I observed that Ms. Sager and Mr. Reinert worked together efficiently.
I find that they are entitled to payment for almost all of the hours that
they logged during their joint work.
As to the hours logged by Ms. Sager over the course of seven years, 1
have decided on a method adapted from the Moon case:
Step 1. Eliminate all purely instructional hours. I am confident that
Ms. Sager accomplished this when she redacted the 203.5 hours in her
Step 2. Eliminate any additional hours that appear to have been
unnecessary. I find that 40.1 hours were unnecessary. In August and
September 2002, after plaintiff's first expert developed a conflict of
interest, Ms. Sager spent 20.1 hours on finding a replacement expert. In
my view, this work could have been done by Joan Petrovits herself, since
the expert was in her field (construction cost estimating). In July,
October 2003, Ms. Sager spent 51.6 hours on the initial fee application.
In my view, 20 of those hours were unnecessary.
Step 3. Discount the remaining hours by 20% "to account for the
unavoidable inefficiency, and overlap between instruction and litigation,
inherent in clinical law practice." Moon, at. *4. I have decided to apply
that 20% discount to all of Ms. Sager's remaining hours from November 26,
1996 through April 30, 2003.
I shall now apply Step 2 and Step 3 to the time periods described in
detail in Ms. Sager's October 27 Declaration at ¶¶ 11-53, as clarified
on January 5, 2004. (Her time sheets gave precise dates, but her
Declaration gave somewhat imprecise dates. As a result, I thought ¶
38 contained an overage of 6.8 hours. At my direction, my law clerk
requested plaintiff's counsel to double-check and clarify. Mr. Reinert
did so by fax dated January 5, 2004, showing that there had been a total
overage of only 1.6 hours in the Declaration's subtotals and in the time
sheets' total. I shall now use the numbers as corrected and clarified.)
11/26/96 7/9/97. During this period, almost all of the
discovery was taken. Ms. Sager reviewed 1,700 pages of documents obtained
from defendant and attended the depositions of plaintiff and of ten
employees of defendant. She logged 146.8 hours. Pursuant to Step 3, I
make an across-the-board discount of 20%, resulting in 117.44 hours.
8/22/97 2/12/98. Defendant declined settlement talks and
advised Judge Batts that it wished to move for summary judgment. Pursuant
to her individual rules, defendant submitted a statement of allegedly
undisputed facts, and plaintiff submitted a lengthy counter-statement.
Ms. Sager: Logged 61.9 hours. Pursuant to Step 3, I reduce this to 49.52
4/23/98 4/14/99. The parties engaged in settlement discussions
while waiting for Judge Batts to rule on whether she would hold a
pre-motion conference on defendant's proposed motion for summary
judgment. Ms. Sager logged 4.5 hours. Pursuant to Step 3, I reduce this
to 3.6 hours.
1/13/00 6/3/00. On January 13, 2000, Judge Batts wrote: "the
Court, is convinced that resolution of the issues by summary judgment:
would not be possible or appropriate." Nevertheless, defendant: insisted
on proceeding with full briefing. Ms. Sager logged 56.5 hours. Pursuant
to Step 3, I reduce this to 45.2
3/1/02 1/24/03. On March 4, 2002, Judge Batts issued an opinion
denying summary judgment. Ms. Sager then learned that an expert she had
consulted in 1997 had now developed a conflict of interest. Eventually,
she located a replacement expert, Joseph Wallwork. Defendant deposed
Wallwork and then moved to preclude Wallwork from testifying at trial.
Ms. Sager began to work on opposing this motion, and also began to work
on the Joint Pre-Trial Order. During this eleven-month period, Ms. Sager
logged 111.1 hours. Pursuant to Step 2, for reasons stated earlier, I
exclude the 20.1 hours she spent on finding the replacement expert. This
leaves 91.0 hours. Pursuant to Step 3, I reduce this to 72.8 hours.
2/5/03 4/30/03. Most of this time was spent on opposing the
preclusion motion. Ms. Sager logged 31.7 hours. Pursuant to Step 3, I
reduce this to 25.36 hours. On 4/30/03, the student help ceased, and I
will not apply the 20% discount after that date.
5/1/03 6/8/03. This was a period of intensive pre-trial
preparation, including completion of the Joint Pre-Trial Order. Ms. Sager
logged 147.0 hours, and I will allow all of it.
6/9/03 6/16/03. During the trial, Ms. Sager logged 53.6 hours,
and I will allow all of it.
6/17/03 7/30/03. During this period, Ms. Sager worked on the
issues of back pay and prospective injunctive relief, and started work on
her application for attorneys' fees. She logged 16.6 hours, and 1 will
allow all of it.
8/11/03 10/13/03. Most of this time was spent preparing papers
opposing defendant's motion that sought judgment as a matter of law or a
new trial. Ms. Sager logged 43.9 hours, and I will allow all of it.
10/14/03 10/26/03. This was the bulk of Ms. Sager's work on her
initial application for attorney's fees. She logged 43.4 hours. Pursuant
to Step 2, for reasons stated earlier, I exclude 20.0 of these hours.
This leaves 23.4 hours.
10/27/03 12/19/03. This time was spent almost entirely on
responding to defendant's massive papers that opposed the fee application
and attacked the integrity of Ms. Sager and of her time sheets. She was
forced to respond, and logged 56.6 hours. I will allow all of it.
To summarize, 1 find that Ms. Sager reasonably spent a total
of 655.02 hours. Multiplied by $250, her lodestar figure is $163,755.00.
I now turn to Mr. Reinert's time sheets. I find that all of his time
was reasonable. It can be summarized as follows.
4/30/03 6/8/03. This was the period of intensive pre-trial
preparation. Mr. Reinert did most of the work on plaintiff's proposed
jury charges. He logged 100.3 hours.
6/9/03 6/16/03. During the trial, he logged 57.0 hours.
6/18/03 7/31/03. He did some of the work on the issues of back
pay and prospective injunctive relief, and started work on his application
for fees. He logged 6.3 hours.
8/23/03 9/15/03. He joined with Ms. Sager in preparing the
papers opposing defendant's motion that sought judgment as a matter of
law or a new trial. He logged 33.6 hours.
10/2/03 10/22/03. This was the bulk of his work on the initial
application for fees. He logged 5.7 hours.
10/27/03 12/19/03. Almost all of this time was spent on
responding to defendant's massive papers that opposed the fee
application. He logged 27.3 hours.
To summarize, I find that Mr. Reinert reasonably spent a total of 230.2
hours. Multiplied by $225, his lodestar figure is $51,795.00. His law
firm also requests $2,070 for the work of Nicole Grunfeld, a summer
intern who attended throughout the trial, but I decline to make any award
for her time.
The Lodestar Calculation
The lodestar amounts are $163,755.00 to Washington Square Legal
Services, Inc. and $51,795.00 to Koob & Magoolaghan, for a total of
$215,550.00. "While the lodestar amount is presumptively a reasonable
fee, the Court may use its discretion to adjust the fee upward or
downward. . . ." Moon, at *6. I see no reason to make any adjustment. The
plaintiff's degree of success was close to the maximum possible. The jury
found that gender animus impacted her beginning on January 1, 1996. If
the jury had agreed with her that the gender animus impacted her in
1994, or in 1992, the increase in damages would have been quite small.
It appears that my fee award slightly exceeds the total
value of the monetary and injunctive relief obtained by plaintiff. But
"the Second Circuit has expressly rejected a method of calculation that
would tie fees to the amount of damages recovered." Id., at *7, citing
Quaratino v. Tiffany & Co., 166 F.3d 422, 426-27 (2d Cir. 1999). In
the case at bar, I estimate that almost $100,000 of the fees were caused
by defendant's unwise litigation tactics. I will give three examples.
Judge Batts warned defendant (see Docket Item #20) that she was convinced
that its proposed summary judgment motion would fail, yet defendant
insisted upon making the motion. After the verdict, defendant made a
lengthy but fruitless motion for judgment as a matter of law or a new
trial. In response to the initial fee application, defendant filed
massive opposing papers attacking the integrity of Ms. Sager and of her
time sheets. Each of those tactics forced plaintiffs' counsel to spend
scores of hours in response.
Plaintiff's papers have given a detailed account of the costs. I find
that all of the amounts are reasonable except for the largest: item
the fee of Joseph Wallwork, the expert in the field of
construction cost estimating. The predecessor expert's 1997 bill charged
an hourly rate of $75, and itemized how his time was spent. Wallwork's
bill gives no itemization, and lists 67.5 hours at an hourly rate of
$250. 1 realize that he had to spend time responding to defendant's
preclusion motion, and being deposed, and testifying at trial. But I will
allow only 40 hours at an hourly rate of $150, for a total of $6,000,
which is a decrease of $10,980.13. Accordingly, my award for reasonable
costs is $20,235.91 to Washington Square Legal Services, Inc., plus
$20.50 to Koob & Magoolaghan, plus $90.50 to Joan Petrovits, plus the
$430.00 Bill of Costs.
I direct plaintiff's counsel to submit a Judgment for Fees and Costs on
three business days' notice to defendant. Interest on the fees and costs
shall not commence until the entry of the Judgment for Fees and Costs.
(On this issue, defendants' brief cited Eaves v. County of Cape May,
239 F.3d 527, 534-35 (3d Cir. 2001), and the reply brief did not
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