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United States District Court, N.D. New York

February 27, 2004.


The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  Plaintiffs New York State Teamsters Conference and Retirement Fund ("Pension Fund") and New York State Teamsters Council Health and Hospital Fund ("Health Fund") (collectively "the Funds") prevailed in their action against Defendant United Parcel Service, Inc. ("UPS") under § 515 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1145. Subsequently, as the prevailing party, Plaintiffs filed the present motion for attorneys' fees and costs pursuant to Rule 54(d) of the Federal Rules of Civil Procedure and § 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2)(D). The following constitutes the Court's written decision with respect to the pending motion.


 A. Plaintiffs' request and Defendant's objections

  Plaintiffs contend that they are entitled to the full amount that they have requested as well as "such further relief as the Court deems just and proper" because the award of attorneys' fees and costs is mandatory under the statute and because Defendant's tactics prior to and during this litigation were designed to "unnecessarily drag out and multiply the issues involved." Specifically, Plaintiffs claim that Defendant (1) asserted a frivolous counterclaim, (2) improperly issued a subpoena after the close of discovery, and (3) filed a motion in limine that Defendant knew or should have known was not well-founded and that the Court ultimately rejected.

  Plaintiffs seek $93,805.00 in attorneys' fees and $12,385.05 in costs, for a total of $106,190.05 for work that their local counsel, Hancock & Estabrook, LLP ("Hancock & Page 3 Estabrook"), performed. In addition, Plaintiffs seek $1,347,205.70 in attorneys' fees and $157,435.11 in costs, totaling $1,504,640.81 for work that their lead counsel, Morgan, Lewis & Bokius, LLP ("Morgan, Lewis"), performed. In sum, Plaintiffs seek a total of $1,610,830.86 in attorneys' fees and costs from Defendant.

  On May 5, 2003, Defendant filed a memorandum in opposition to Plaintiffs' motion for attorneys' fees and costs, arguing that the amount requested is unreasonable and should be denied "in substantial part." Defendant claims that the hourly rates that Plaintiffs' attorneys charged exceed the prevailing rates in this district and that the hours claimed are insufficiently documented or are excessive, redundant, and unnecessary. In addition, Defendant objects to Plaintiffs' request for costs associated with plane tickets and other transportation, meals, lodging, postage/delivery, computer research, and clerical overtime on the ground that these expenses are not taxable as costs under § 1132(g)(2). Based upon its objections, Defendant contends that Plaintiffs are entitled to no more than $737,736.50 in attorneys' fees and $12,026.00 in costs.

  The Court will address each of the issues that the parties have raised in turn.*fn1 Page 4

 B. The reasonableness of Plaintiffs' request for attorneys' fees

  To determine the reasonableness of an attorneys' fees application, the Second Circuit uses the lodestar method. SeeLuciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (citations omitted). The lodestar amount is calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. See id.; Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).*fn2 The court may then increase this lodestar amount, in its discretion, with particular emphasis placed on the degree of the prevailing party's success. See Hensley, 461 U.S. at 434 (footnote omitted).*fn3 The prevailing party has the burden to establish the appropriate hourly rate and to document the time reasonably expended. See id. at 437. However, "[a] request for attorney's fees should not result in a second major litigation." Id.

  Both parties agree that this Court must calculate the award of attorneys' fees according to the lodestar method. They disagree, however, with respect to the values of the two main components of that calculation — the reasonable hourly rate and the reasonable number of hours expended. In this regard, Defendant contends that Plaintiffs' attorneys' hourly rates are unreasonably high and that the hours billed are excessive, redundant, and unnecessary. Page 5 Defendant also protests any increase in the fee award beyond the initial lodestar calculation.

  1. Plaintiffs' requested hourly rates

  The reasonable hourly rate must be "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The "prevailing community" has been interpreted as the district where the court sits. Luciano, 109 F.3d at 115 (quotation omitted). The court also has the discretion to increase a fee award in certain circumstances, see Hensley, 461 U.S. at 434, however, "[t]he burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant." Blum, 465 U.S. at 898.

  Courts in this district have held that the prevailing rate for experienced attorneys is $175 per hour. See, e.g., Patterson v. Julian, 250 F. Supp.2d 36, 45 (N.D.N.Y. 2003) (citing I.B.E. W. Local No. 910 Welfare, Annuity and Pension Funds ex rel. Love v. Dexelectrics, Inc., 98 F. Supp.2d 265, 275 (N.D.N.Y. 2000)) (other citations omitted). In Local 910, the court specified that the prevailing rates in this district are $175 per hour for the most experienced attorneys, $125 per hour for attorneys with four or more years of experience, $100 per hour for attorneys with less than four years experience, and $65 per hour for work done by paralegals. See Local No. 910, 98 F. Supp.2d at 275 (citations omitted).

  Defendant objects to the rates that Plaintiffs' attorneys charged and contends that this Court should apply the hourly rates set forth in Local 910. Defendant concedes, however, that a rate of $200 per hour is reasonable for attorney Jonathan Rose based upon his special expertise; however, Defendant argues that no other upward adjustment in the fee allowance is justified. Page 6

  Plaintiffs' documentation for the hours that its Morgan, Lewis attorneys expended shows that they charged the following hourly rates: between $330 and $415 for partners and of counsel, between $115 and $375 for associates, and between $100 and $145 for legal assistants/law clerks.

  Plaintiffs' documentation for the hours that its Hancock & Estabrook attorneys expended does not clearly show the hourly rates for most of the attorneys individually, as they are typically grouped together on the invoices. However, it appears that the hourly rates they charged are as follows: between $185 and $225 for partners, between $100 and $180 for associates, and approximately $95 for legal assistants.

  Moreover, Plaintiffs submitted detailed descriptions of the qualifications of attorney Jonathan Rose of Morgan, Lewis and attorney Michael Sciotti of Hancock & Estabrook. However, aside from this information, Plaintiffs provided no explanation or justification for the hourly rates charged; nor did they provide any detail as to the experience of the attorneys or paralegals involved, except to distinguish between partner, associate, and paralegal/law clerk. Based upon this record, the Court sees no reason to adjust the prevailing rates in this district. Therefore, the Court will use the prevailing hourly rates set forth in Local 910 to calculate Plaintiffs' fee award.*fn4 Furthermore, because Plaintiffs made no effort to distinguish between levels of associate experience, the Court will use the $125-per-hour rate for one-half of all associate time and the $100-per-hour rate for the other half of all associate time. Page 7

  2. The sufficiency of Plaintiffs' documentation

  In this Circuit, "contemporaneous time records are a prerequisite for attorney's fees. . . . These records should specify, for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'nfor Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983) (internal citations omitted). However, the attorney "is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures." Hensley, 461 U.S. at 437 n.12 (citation omitted). Moreover, hours which are "excessive, redundant, or otherwise unnecessary" must be excluded from the calculation. Id. at 434. The prevailing party is ethically obligated to exclude such hours in exercise of appropriate billing judgment. See id.

  Defendant contends that Morgan, Lewis partner Thomas K. Wotring insufficiently documented much of his time with inadequate descriptions, such as "Research Re. Discovery" and "Research Re. Motions," and that the Court should disallow all hours recorded without more specificity. Defendant calculates that this would reduce the lodestar amount by $40,530.00

  In a recent decision, one court in this district observed that entries such as "`consultation, preparations for litigation'" were "woefully inadequate and vague," particularly because the surrounding entries did not in any way clarify this vagueness, but in fact confirmed it since they were in much greater detail. Patterson, 250 F. Supp.2d at 43 (quotation omitted). Similarly, one court in the Southern District of New York reduced the number of hours by twenty-five percent due to vague entries, such as "`Research and draft of memo' for 27.5 hours over four days," because the vague entries prohibited the court from severing the unsuccessful claims from the successful ones. See McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, No. 99 Page 8 CIV. 9054, 2002 WL 1974054, *3 (S.D.N.Y. Aug. 27, 2002) (quotation omitted). However, in another case, a different court determined that entries such as "brief were sufficient because the time records as a whole were reasonable and sufficient to determine the nature of the work done. See Ginsberg v. Valhalla Anesthesia Assocs., P.C., No. 96 Civ. 6462, 1998 WL 19997, *3 (S.D.N.Y. Jan. 20, 1998) (quotation omitted).

  In the documentation that Plaintiffs' attorneys provided to the Court, entries such as those that Defendant points out are the exception, and, where they do exist, they can be easily clarified by the surrounding entries. Plaintiffs' records span a period of four years and thousands of hours, through which one must search to find the entries about which Defendant complains, and, where they do exist, the time claimed never exceeds two hours. Accordingly, the Court concludes that, despite Defendant's assertion to the contrary, Plaintiffs' attorneys' time records meet the requirements set forth in New York State Ass'n for Retarded Children.

  3. Plaintiffs' attorneys' delegation of tasks

  Defendant contends that hours billed for tasks such as research and writing are unreasonable if a partner, rather than an associate, bills for them. Specifically, Defendant argues that all of the hours that Mr. Wotring spent on research should have been billed at the associate billing rate and that the 137 hours that Ms. Weiss and Ms. Cox spent "digesting depositions" should have been done by paralegals. Defendant calculates that this would reduce the lodestar amount by $16,880.00.

  In Bryant v. Colgate Univ., 996 F. Supp. 170 (N.D.N.Y. 1998), the court reduced the number of hours that the prevailing party claimed by thirty percent when it found that two or Page 9 more attorneys billed time for completing tasks that could have been completed by one and that partners billed time for time expended on tasks such as "research for and writing of first drafts" which should have been delegated to associates and law clerks. Id. at 172. Similarly, in Bourgal v. Atlas Transit Mix Corp., No. CV-93-0569, 1996 WL 75290 (E.D.N.Y. Feb. 7, 1996), the court reduced the fee amount when it found that associates and partners spent time "proofreading, collating, faxing, copying, and serving documents. . . ." Id. at *6.

  The present case is distinguishable from Bryant, upon which Defendant relies, and from Bourgal — one of the few cases that specifically addresses this issue. In this case, there is no allegation that two or more attorneys billed for tasks which could have been completed by one. Moreover, the research that Mr. Wotring conducted occurred only at the initial stages of the litigation. Furthermore, his research pertained to issues such as litigation strategy and discovery, not simply "writing of first drafts." Nor is there any support for Defendant's contention that digesting depositions in a complex litigation such as this one is clearly analogous to writing a first draft in a much less complex case. In addition, the entries about which Defendant complains indicate that this occurred in conjunction with conferences and meetings in order to continue to develop the litigation strategy. Similarly, there are no instances of partners or associates billing for tasks such as proofreading or copying. Accordingly, the Court rejects Defendant's objections and declines to reduce the fee application on these grounds.

  4. Billing for travel time

  Defendant contends that Plaintiffs' attorney Jonathan Rose charged the full hourly rate for travel time and, further, that he did not differentiate between how much time he spent on travel Page 10 and how much time he spent on other tasks in several combined entries. Therefore, Defendant argues that, for all entries consisting of travel alone, the Court should reduce those hours by one-half. Further, where the entry does not clearly identify the amount of time spent traveling as opposed to the time spent on other tasks, the Court should split the hours billed in half and calculate the travel time at a rate that is one-half of the applicable hourly rate. Although Defendant calculates that in discounting the travel time that Mr. Rose billed, a $158,062.50 reduction is warranted, it is unclear how Defendant arrived at this amount.

  "Travel time is generally reimbursed at half of the hourly prevailing rate." Patterson, 250 F. Supp.2d at 45 (citing Funk v. F & K Supply, Inc., 43 F. Supp.2d 205, 230 (N.D.N.Y. 1999)). In Patterson, the court reasoned that, because the fee applicant failed to differentiate between time spent on travel and time spent on other tasks, the appropriate method for determining the rate was to divide the time in half, compensating one half at the prevailing hourly rate and the other at half of that rate. See id.

  There are several entries in the time records of Plaintiffs' Morgan, Lewis attorneys that combine travel time and time spent on other tasks, with no clarification as to the amount of time allocated to each. Not only did Mr. Rose bill this way, but so did one partner and two associates. Mr. Rose has entries totaling 643.4 hours consisting of both work and travel and 28.8 hours billed for travel alone. Also, there is a total of six hours that a partner included that did not differentiate between time spent on travel and time spent on other tasks. Finally, Morgan, Lewis associates billed a total of 185.7 hours in entries that did not differentiate between travel time and Page 11 time spent on other tasks.*fn5 Accordingly, the Court will apply the rules set forth in Patter son and calculate the travel time at one-half of the appropriate hourly rate.*fn6

  5. The appropriateness of Hancock & Estabrook's quarter-hour billing method

  Defendant contends that Hancock & Estabrook's quarter-hour billing method is inappropriate and imprecise, as opposed to the "more prevalent" tenths-of-an-hour billing method. Therefore, Defendant asserts that the Court should reduce the amount sought for the time that Hancock & Estabrook attorneys expended on this litigation by one third, resulting in a $23,498.00 reduction in the lodestar amount.

  To support this contention, Defendant relies upon three cases from the Southern District of New York and one from the Eastern District of New York that generally state that the quarter-hour billing method is not the "most accurate." Defendant quotes extensively from Oxford Venture Fund Ltd. P'ship v. CIT Group/Equip. Fin., Inc., No. 89 Civ. 1836, 1990 WL 176102 Page 12 (S.D.N.Y. Nov. 5, 1990), to support its argument; however, that case held only that the accuracy of the quarter-hour billing method "[would] be taken into account . . . in connection with the overall reduction of the fee award." Id. at *2. Furthermore, in the two other cases that Defendant cites, the courts made a reduction for the use of quarter-hour billing increments due to other circumstances such as billing fifteen minutes for every telephone call, see Pazo v. Apfel, No. 98 CV 5535, 2001 U.S. Dist. LEXIS 24494, *24 (E.D.N.Y. Mar. 7, 2001), and because the accuracy of this method combined with time entries for internal conferences and the overall vagueness of the entries warranted a blanket reduction in the lodestar amount, see Blau v. Music Theatre Int'l, Inc., Nos. 00 Civ. 8990, 01 Civ. 2695, 2002 U.S. Dist. LEXIS 15512, *6 (S.D.N.Y. May 14, 2002).

  Defendant cites no authority in this district that calls into question the propriety of the use of quarter-hour billing increments, and the Court knows of no reason why, at least under the circumstances of this case, a reduction is warranted for using this method. Accordingly, the Court declines to reduce the lodestar amount based upon this argument.

  6. Final calculation of attorneys'fees

  Based upon Plaintiffs' submissions and taking into account the reductions noted above, the Court calculates that Plaintiffs are entitled to the following award of attorneys' fees for the time that their attorneys expended on this litigation.*fn7

  Morgan, Lewis Attorneys $844,871.25 Hancock & Estabrook Attorneys 77.662.50 __________________ Total Attorneys' Fees Award $922,533.75 Page 13

 C. Costs authorized pursuant to § 1132(g)(2)

  Defendant contends that the disbursements and client charges that Plaintiffs incurred during litigation do not constitute "costs" within the meaning of § 1132(g)(2). In this regard, Defendant argues that courts have interpreted the term "costs" to mean only those types of costs allowed by 28 U.S.C. § 1920, which does not include plane tickets and other transportation costs, meals, lodging, postage and delivery. Defendant also asserts that computer research is merely a substitute for an attorneys time that is compensable under an application for attorneys' fees and is not a separately taxable cost. Finally, Defendant contends that the costs associated with clerical overtime are not recoverable and should be disallowed. For all these reasons, Defendant asks the Court to reduce the application for costs to $12,026.00.

  In Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278 (2d Cir. 1987), the Second Circuit addressed identical objections and held that, although 28 U.S.C. § 1920 "describes the costs that may be awarded to the prevailing party in most civil suits . . .[the] awards of attorney's fees . . . under fee-shifting statutes . . . `normally include those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients.'" Id. at 283 (internal citation and other quotation omitted); see also United States Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989) ("attorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients. . . . The out-of-pocket expenses at issue here were "`incidental and necessary" to the representation'. . . . Thus, they were properly included in the amount that may be awarded pursuant to Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920 (1982)." (internal citation and Page 14 quotation omitted)).

  This Court has previously allowed the award of costs associated with lodging, meals, transportation, photocopying, postage, long distance telephone charges, and facsimiles — all of which are reasonable out-of-pocket expenses. See O'Grady v. Mohawk Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988, *7-*9 (N.D.N.Y. Jan. 15, 1999) (citations omitted). However, "[s]ecretarial overtime and supplies are not chargeable as they fall under the scope of overhead. . . ." Id. at *8. Moreover, this Court has previously held that computerized legal research costs are not recoverable. See Upstate N.Y. Bakery Drivers & Indus. Pension Fund v. Colony Liquor Distribs., Inc., 993 F. Supp. 146, 150 (N.D.N.Y. 1998) (citation omitted).

  Based upon these precedents, the Court will allow all costs with the exception of those charged for computerized legal research, secretarial overtime, "trial supplies" or "Misc. Trial Expenses," bar association registration billed by Morgan, Lewis — which are incidental to their representation of Plaintiffs in this district — and "incorporation costs" billed by Hancock & Estabrook — for which they provided no other description or explanation. This calculation results in an award of $137,077.47 for costs that Morgan, Lewis attorneys incurred and an award of $10,930.00 for costs that Hancock & Estabrook attorneys incurred, for a total award of $145,007.64 in costs to Plaintiffs. See Appendix at Charts 3 and 4.


  After carefully reviewing the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

  ORDERS that Plaintiffs' motion for an award of attorneys' fees and costs pursuant to Page 15 Rule 54(d) of the Federal Rules of Civil Procedure and 29 U.S.C. § 1132(g)(2), is GRANTED in the amount of $1,067,541.39;*fn8 and the Court further

  ORDERS that the Clerk of the Court amend the judgment in this case to reflect this award of attorneys' fees and costs to Plaintiffs.



 Chart 1: Attorneys' fees calculation using lodestar method


Requested Requested Allowed Allowed Allowed Hourly Rate Hours Hourly Rate Hours Amount Morgan, Lewis Attorneys
Jonathan 245-375 3,285.55 200 3,285.55 $657,110.00 Rose — of counsel
Partners 330-415 426.9 175 426.9 $74,707.50
Associates 115-375 1,447.5 125 723.75 $90,468.75
100 723.75 $72,375.00
Paralegals 100-145 169.4 65 169.4 $11,011.00
Total Amount $1,347,205.70 Requested
Total Amount $905,672.25 Granted
Hancock & Estabrook Attorneys
Partners 185-225 398.95 175 398.95 $69,816.25
Associates 100-180 15 125 7.5 $937.50
100 7.5 $750.00
Paralegals 95 94.75 65 94.75 $6,158.75
Total Amount $98,805.00 Requested
  Total Amount $77,662.50 Granted Page 17

 Chart 2: Travel Exclusions


(A) (B) (C) (D) (E) (F) (G) (H) (I) Hours Hours Total — Total Total Travel Work Total Total Billed Billed — Using Travel Work Amount Amount Amount Amount — Travel Lodestar Hours Hours Allowed Allowed Allowed Reduced Travel & Fee Only Other Amounts Tasks
(A)* ((B/2) B/2 D* 1/2 E * hourly F G C - H hourly rates )/2 hourly rate rate
  J. Rose 28.8 643.4 $134,440.00 175.25 321.7 $17,525.00 $64,340.00 $81,865.00 $52,575.00 Partners 0 6 $1,050.00 1.5 3 $131.25 $525.00 $656.25 $393.75 Associates 0 185.7 $20,891.25 46.43 92.85 $2,612.25 $10,446.75 $13,059.00 $7832.25 Totals 28.8 832.1 $156,381.25 223.18 417.55 $20,268.50 $75,311.75 $95,580.25 $60,801.00 Page 18

 Chart 3: Costs — Morgan, Lewis

  COSTS Requested Amount Allowed Amount Lexis/Westlaw $19,327.53 $0 Telephone $4,248.98 $4,248.98 Travel Expenses*fn9 $46,373.77 $46,373.77 Hotel Expenses $16,818.56 $16,818.56 Photocopying Expenses $26,368.90 $26,368.90 Meals $6,277.26 $6,277.26 Facsimile $1,019.29 $1,019.29 Postage — including UPS, Federal $2,097.79 $2,097.79 Express, Courier Services Court Reporter Fees $27,405.29 $27,405.29 Secretarial Overtime $2,504.16 $0 Bar Association Registration $30.00 $0 Trial Supplies $987.15 $0 Witness Fees $3,467.63 $3,467.63 TOTAL $156,926.31 $134,077.47 Page 19

 *fn9 Travel expenses include airfare, road tolls, car rentals, cab fare, parking fees, and train fare.

  Chart 4: Costs — Hancock & Estabrook

  COSTS Requested Amount Allowed Amount Filing Fees $150.00 $150.00 Incorporation Costs $150.00 $0 Service of Complaint $80.10 $80.10 Telephone $376.15 $376.15 Facsimiles $943.00 $943.00 Photocopying $2,999.46 $2,999.46 Travel $510.41 $510.41 Postage — including UPS, Federal $1,420.96 $1,420.96 Express, Courier Services Stenographic Services $126.59 $126.59 Court Reporter Fees $4,323.50 $4,323.50 Choicepoint Searches $34.24 $0 Misc. Trial Expense $120.21 $0 Lexis/Westlaw $1,150.43 $0 TOTAL $12,385.05 $10,930.17 Page 20

  Charts: Grand Totals

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