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United States District Court, S.D. New York

January 6, 2004.


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

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 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. Page 5 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 drafting 1.5
4/24/00 Team meeting re progress on all sections. 1.5 Meet with Pavani re statistics section. 1.0
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 1.5
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 Page 6 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 rate.

  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 initial application.

  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, August and Page 7 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 hours.

  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 Page 8

  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 Page 9 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 Page 10 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.

  Reasonable Costs

  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 respond.)


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