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
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).
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 ...