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PINNER v. BUDGET MORTGAGE BANKERS

ELIZABETH M. PINNER, f/k/a ELIZABETH M. CUTRONE, Plaintiff,
v.
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 costs.

  DISCUSSION

  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. 1998).

  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. 1997).

  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 ...


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