United States District Court, E.D. New York
ELIZABETH M. PINNER, f/k/a ELIZABETH M. CUTRONE, Plaintiff,
BUDGET MORTGAGE BANKERS, LTD., Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The plaintiff Elizabeth M. Pinner, formerly known as Elizabeth
M. Cutrone, ("Pinner" or the "Plaintiff") brought this Title VII
employment discrimination action pursuant to 42 U.S.C. § 2000e
et seq. against the defendant Budget Mortgage Bankers, Ltd.
("Budget" or the "Defendant"), alleging five causes of action.
Prior to the trial, the Plaintiff voluntarily withdrew two of the
Title VII causes of action. Two of the causes of action went to
the jury, Title VII sexual harassment-hostile work environment
and Title VII retaliation.
On July 13, 2004 the jury returned a verdict in favor of the
Defendant on the sexual harassment-hostile work environment cause
of action. However, the jury returned a verdict in favor of the
Plaintiff on her retaliation claim. The jury awarded no
compensatory damages and the sum of $4,000 in punitive damages.
The Plaintiff now moves for an award of attorney's fees and
I. The Standards
A prevailing party in a case brought pursuant to Title VII is
entitled to an award of reasonable attorney's fees.
42 U.S.C. § 2000e-5(k). Because of the district court's familiarity with the
quality of the representation and the extent of the litigation,
the decision whether to award fees and the amount of fees to be
awarded are issues generally confined to the sound discretion of
the court. Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.
The well-known formula for calculating attorney's fees is the
"lodestar" method described in Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565,
106 S. Ct. 3088, 92 L. Ed.2d 439 (1986). Under this 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. Eckerhart, 461 U.S. 424,
433, 103 S. Ct. 1933, 76 L. Ed.2d 40 (1983); LeBlanc-Sternberg
v. Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998); Gierlinger,
160 F.3d at 876; Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir.
If the Court finds that certain claimed hours are excessive,
redundant, or otherwise unnecessary, the court should exclude
those hours from its lodestar calculation. Hensley,
461 U.S. at 434 n. 9; Luciano, 109 F.3d at 116. Once 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 and n. 9,
103 S. Ct. 1933, citing Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).
II. The Contentions
The Plaintiff seeks attorney's fees at the rate of $350 per
hour for a period of 133.66 hours for a total request of $46,781.
In addition, the Plaintiff requests reimbursement for costs in
the sum of $624.90. In connection with these requests,
Plaintiff's counsel annexed a summary of the time allegedly
expended in this case (Lira Declaration; Exhibit 2), together
with an itemized list of the costs (Exhibit 1).
The Defendant's counsel opposes the amount of the attorney's
fees requested by the Plaintiff. Initially, Defendant's counsel
contends that the "hourly rate of $350.00 is excessive for a
private practitioner, regardless of his/her experience"
(Affirmation in Opposition, p. 2). He also asserts that on the
eve of trial, the Plaintiff withdrew two of the causes of action
originally brought, namely, the claims of religious and national
origin discrimination. Therefore, he states that the Plaintiff
should not be awarded attorney's fees for the time expended in
connection with those causes of action.
At the outset, the Court notes that Defendant's counsel's
initial novel contention that the Plaintiff made settlement
impossible because of an excessive $350,000 demand, and,
therefore, precipitated a trial, is totally without merit. No
settlement offer was ever made by the Defendant prior to the
trial, during the trial, after the verdict was rendered against
it, or to the present time. In the Court's view, the Defendant's
lack of willingness to settle, at any time, was a competent
producing cause of the trial. In any event, the Plaintiff's
failure to settle under these circumstances, could not support a
reduction in the compensatory hours.
In addition, Defendant's counsel questions the number of hours
allegedly spent by Plaintiff's counsel in connection with this
lawsuit. He states that Plaintiff's counsel "could not have
genuinely needed 133.66 hours to prepare and try the case based
upon counsel's longtime experience in the field of employment
law, particularly Title VII and sexual harassment issues."
Affirmation in Opposition at 3. In particular, defense counsel
asserts that 13.40 hours to prepare jury instructions; 1.50 hours
for an interview with the Plaintiff's daughter and husband and
11.89 hours to prepare a written summary of the facts in the
case, among other matters, constitutes excessive hours.
In response, Plaintiff's counsel virtually concedes that he
should not be compensated for the two withdrawn discrimination
claims. However, he states that he expended less than 3 hours
preparing the allegations in the complaint with regard to those
two causes of action.
A) As to the Reasonable Hourly Rate
In making the initial lodestar calculation, the rate to be used
must be the rate "prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience,
and reputation." Luciano v. Olsten Corp., 109 F.3d 111, 115
(2d. Cir. 1997) (citing Blum v. Stenson, 465 U.S. 886, 896 n.
11, 79 L. Ed. 891, 104 S. Ct. 1541, 1547 n. 11 (1984)). The Court
will apply the rates prevailing in the Eastern District community
for similar services by lawyers of reasonably comparable skill,
experience and reputation in making the initial lodestar
calculation. Polk v. New York State Dep't of Correctional
Services, 722 F.2d 23, 25 (2d Cir. 1983) ("normally a district
court awarding attorney's fees under Section 1983, will consider
the prevailing rates in the district in which the court sits").
In 1998, the Second Circuit held that rates of $200 for
partners, $135 for associates, and $50 for paralegals are
reasonable rates for legal services in the Eastern District.
Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d. Cir.
1998). See also Luciano, 109 F.3d at 111-112 (collecting
cases); Association for Retarded Citizens v. Thorne,
68 F.3d 547, 554 (2d Cir. 1995); Cruz v. Local Union No. 3, Int'l.
Brotherhood of Electrical Workers, 34 F.3d 1148, 1160 (2d Cir.
1994); Irish v. City of New York, 2004 WL 444544 (S.D.N.Y. 2004
($250 per hour).
In this regard, the Court notes that this was a garden-variety
Title VII sexual harassment and retaliation case. The case
involved no complex issues of law or fact or novel evidentiary
issues and only five exhibits were introduced in evidence.
Some Eastern District Courts have followed the Savino
standard. See, Fink v. City of New York, 154 F. Supp. 2d 405,
407 (E.D.N.Y. 2001) (partners $200.00 to $250.00 and associates
$100.00 to $200.00 per hour); Schwartz v. Chan,
142 F. Supp. 2d 325 (E.D.N.Y. 2001) ($175.00 per hour for a sole partner).
Fernandez v. North Shore Orthopedic Surgery & Sports Medicine,
2000 WL 130637 (E.D.N.Y. 2000) ($225.00 per hour for partners and
$100.00 per hour for associates); Cush-Crawford v. Adchem
Corp., 94 F. Supp. 2d 294, 303 (E.D.N.Y. 2000) aff'd
271 F.3d 352 (2d Cir. 2001) ($200.00 for partners and $135.00 for
associates); Greenridge v. Mundo Shipping Corp.,
60 F. Supp. 2d 10, 13 (E.D.N.Y. 1999) ($225.00 per hour for a senior
partner and $150.00 per hour for her associate).
Accordingly, after considering all the factors in Hensley,
the probable increase in fees since Savino was decided in 1998,
the facts and circumstances of this case and the experience of
David M. Lira the Court fixes his rate of compensation at $250.00
B) As to the Reasonable Hours Expended
Having determined the reasonable hourly rate for Mr. Lira, the
Court now turns to the question of how many hours were reasonably
expended by him. The standard in this regard was stated in
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998):
The district court must thus examine the hours
expended by counsel and the value of the work product
of the particular expenditures to the client's case.
Efforts put into research, briefing and the
preparation of a case can expand to fill the time
available, and some judgment must be made in the
awarding of fees as to diminishing returns from such
further efforts. . . . In making this examination,
the district court does not play the role of an
uninformed arbiter but may look to its own
familiarity with the case and its experience
generally as well as to the evidentiary submissions
and arguments of the parties. DiFilippo v. Morizio,
759 F.2d 231, 235-36 (2d Cir. 1985); see, e.g.
Luciano v. Olsten Corp., 109 F.3d 111, 116 (2d Cir.
1997); Clarke v. Frank, 960 F.2d 1146, 1153 (2d
Cir. 1992). If the court determines that certain
claimed hours are "excessive, redundant, or otherwise
unnecessary," Hensley v. Eckerhart,
461 U.S. at 434, 103 S. Ct. 1933, the court should exclude those
hours in its calculation of the lodestar.
For an accurate determination of the hours reasonably expended
it is necessary for the Court to examine contemporaneous billing
records, time sheets or other documented, authentic and reliable
time records. The time records submitted by Mr. Lira as annexed
to his affidavit, appear to be a review or compilation of the
work he did rather than contemporaneous records. However, the
Court accepts these records as proper hourly time records.
A review of the facts and arguments in this case reveals that
the hours claimed by the Plaintiff's counsel are not "excessive,
redundant or otherwise unnecessary." Hensley, 416 U.S. at 434.
Except for the approximate three hours expended for the two
withdrawn causes, the other hours claimed by Plaintiff's counsel
are fair and reasonable and are accepted. In this regard the
Plaintiff's hours are reduced from 133.66 hours to 130.66 hours.
C) As to Unsuccessful Claims
As stated in Hensley, the "results obtained" factor "is
particularly crucial where a Plaintiff is deemed `prevailing'
even though she succeeded on only some of her claims for relief"
Hensley, 461 U.S. at 434. In dealing with partially successful
claims, two questions are presented. "First, did the plaintiff
fail to prevail on claims that were unrelated to the claims on
which he succeeded? Second, did the plaintiff achieve a level of
success that makes the hours reasonably expended a satisfactory
basis for making a fee award?" Id. at 434. The Hensley Court
then went on to explain in more detail the "related claims"
It may well be that cases involving such unrelated
claims are unlikely to arise with great frequency.
Many civil rights cases will present only a single
claim. In other cases the plaintiff's claims for
relief will involve a common core of facts or will be
based on related legal theories. Much of counsel's
time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours
expended on a claim-by-claim basis. Such a lawsuit
cannot be viewed as a series of discrete claims.
Instead the district court should focus on the
significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably
expended on the litigation.
Hensley, 461 U.S. at 434-37.
The Court finds that the withdrawn Title VII religious and
gender discrimination claims were unrelated to the successful
retaliation claim. However, the Court also finds that the failed
sexual harassment-hostile work environment claim and the
successful retaliation claim are related and inextricably linked.
Therefore, the Court will make a reduction of five percent for
the two withdrawn causes.
In addition, the Court further finds that the Plaintiff's
degree of success on the interrelated successful and unsuccessful
claims, does not warrant a reduction on the fee award for those
D) As to Costs
The Plaintiff is entitled to reimbursement for the reasonable
costs incurred in pursuing the litigation, although payment is
not permitted for items which constitute routine office overhead.
See LeBlanc-Steinberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998). The Second Circuit has held that reasonable identifiable
out-of-pocket disbursements, which are ordinarily charged to
clients, are recoverable. See United States Football League v.
National Football League, 887 F.2d 408, 416 (2d Cir. 1989); see
also Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d
Cir. 1987) (providing a non-exclusive list of recoverable costs
including photocopying, travel and telephone costs).
In this regard the Plaintiff claims costs and disbursements in
the sum of $624.90. Candidly, defense counsel does not dispute
this reimbursement. The Plaintiff will be award costs in the sum
of $624.90. See FRCP 54(d)(1).
The Court now recalculates the fee to be awarded to Plaintiff's
David M. Lira 130.66 hours @ $250 per hour = $ 32,665.00
Less 5% reduction 1,633.25
Net Fee $ 31,041.75
Plus Costs 624.90
Total Fee and Costs $ 31,666.65
Accordingly, it is hereby
ORDERED, that the Clerk of the Court is directed to enter
judgment in favor of the plaintiff Elizabeth M. Pinner, formerly
known as Elizabeth M. Cutrone, against the defendant Budget
Mortgage Bankers, Ltd. for punitive damages in the sum of
$4,000.00, together with a total attorney's fee of $31,041.75 and
costs in the sum of $624.90.
The Clerk is then directed to close this case.
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