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Kauffman v. Maxim Healthcare Services

September 9, 2008


The opinion of the court was delivered by: Sandra J. Feuerstein, United States District Judge

On Plaintiff's Petition for Attorneys' Fees


I. Introduction

Plaintiff Brian Kauffman ("Plaintiff" or "Kauffman") commenced an action against Defendant Maxim Healthcare Services, Inc. ("Maxim") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.("Title VII"), 42 U.S.C. § 1981(a), and New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. ("NYSHRL"). In a bifurcated trial,*fn1 the jury returned a verdict in Plaintiff's favor on the issue of retaliation, awarded him One Million Five Hundred Thousand Dollars ($1,500,000.00) in punitive damages, and One Hundred Thirty-Seven Thousand, Nine Hundred Thirty-Five Dollars ($137,935.00) in compensatory damages. Plaintiff seeks attorneys' fees and costs totaling Eight Hundred Twenty-Nine Thousand, Forty-Nine Dollars and two cents ($829,049.02)*fn2 pursuant to 42 U.S.C. §§ 1988, 2000e-5(k). Defendant concedes that Plaintiff is entitled to an award of attorneys' fees and costs, but argues that the amount sought is unreasonable. The Defendant does not dispute the amount of costs sought by the Plaintiff. For the reasons stated herein, Plaintiff is awarded Four Hundred Sixty-Eight Thousand, Five Hundred Fifty-Nine Dollars ($468,559.00) in attorneys' fees and Seven Thousand Ten Dollars and seventy-seven cents ($7,010.77) in costs.

II. Background*fn3

Following the verdict, Defendant moved for a new trial or, alternatively, for remittitur as to the amount of punitive damages. This Court denied the motion for a new trial, but granted Defendant's motion for remittitur. See Kauffman v. Maxim Healthcare Service, Inc., 509 F. Supp. 2d 210, 213 (E.D.N.Y. 2007). On September 24, 2007, the Plaintiff accepted remittitur in the amount of Five Hundred Fifty-One Thousand, Four Hundred Seventy Dollars ($551,470.00). (See Letter from Jeffrey M. Bernbach, Esq., to Hon. Sandra J. Feuerstein, U.S. Dist. Court, E.D.N.Y (Sept. 24, 2007) (doc. #134).) On October 29, 2007, Plaintiff filed a "Warrant to Satisfy Judgment" stating, inter alia, "FOR AND IN CONSIDERATION of the sum of Six Hundred Eighty Nine Thousand Four Hundred Five and 00/100 ($689,405.00) . . . full satisfaction is hereby acknowledged of the Judgment . . . ." ("Satisfaction of Judgment" (doc. #149).)*fn4

The applications of the Plaintiff are summarized as follows:

ATTORNEYS'FEES -- Original Application

CategoryRate/Hr.HoursSubtotalsTotals Jeffrey Bernbach: attorney rate$495.00662.0$327,690.00  Jeffrey Bernbach: travel rate (1/2 atty rate)$247.5079.3$19,626.75  Jeffrey Bernbach   $347,316.75 Jason Bernbach: attorney rate$375.001,199.4$449,775.00  Jason Bernbach: travel rate (1/2 atty rate)$187.5043.8$8,212.50  Jason Bernbach: administrative rate$75.0017.5$1,312.50  Jason Bernbach   $459,300.00

ATTORNEYS'FEES -- Supplemental Application

CategoryRate/Hr.HoursSubtotalsTotals Jeffrey Bernbach: attorney rate$495.008.7$4,306.50  Jeffrey Bernbach   $4,306.50 Jason Bernbach: attorney rate$375.0029.3$10,987.50  Jason Bernbach: administrative rate$75.001.7$127.50  Jason Bernbach   $11,115.00    TOTAL FEES:$822,038.25

III. Discussion

A. Awarding Attorneys' Fees and Costs Under Title VII

Title VII provides that "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs." 42 U.S.C. § 2000e-5(k). "[A]wards of attorney's fees in civil rights suits under fee-shifting statutes . . . normally include those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged [to] fee-paying clients." Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 283 (2d Cir. 1987) (citations and internal quotation marks omitted). When the prevailing party in a civil rights action is the plaintiff, attorney's fees and costs should normally be awarded "unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation and internal quotation marks omitted).

Luca v. County of Nassau, No. 04-CV-4898 (FB), 2008 WL 2435569 (E.D.N.Y. June 16, 2008) (emphasis in original).

A "reasonable attorney's fee" is "the product of hours worked and an hourly rate," Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008) (hereinafter "Arbor Hill III"). This "fee--historically known as the 'lodestar'--" and which the Arbor Hill III panel "think[s] is more aptly termed the 'presumptively reasonable fee'," id., should be determined by consideration of: factors including, but not limited to, the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.

Id. at184 (footnote omitted). In making this determination, the district court is to "disciplin[e] the market, stepping into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively." Id. ("[T]he district court must act later to ensure that the attorney does not recoup fees that the market would not otherwise bear."). The appropriate fee is the product of "the methodology [for determining the attorneys' fee award] remains the same: 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Luca, 2008 WL 2435569, at *7 (quoting Hensley, 461 U.S. at 429 (citation and internal quotation marks omitted)). "District courts have broad discretion to determine both the reasonable number of compensable hours and the reasonable hourly rate." Brady v. Wal-Mart Stores, Inc., 455 F. Supp. 2d 157, 203 (E.D.N.Y. 2006) (citing Hensley, 461 U.S. at 433, 437); see also Barfield v. N.Y. City Health & Hosp. Corp., ___ F.3d ___, 2008 WL 3255130, *15 (2d Cir. Aug. 8, 2008) (circuit court "afford[s] a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case"; affirming 50% reduction of lodestar).

1. Reasonable Hourly Rate

Plaintiff's counsel's office is located in the Southern District of New York. "The Supreme Court directed that district courts should use the 'prevailing [hourly rate] in the community' in calculating the lodestar--or what we are now calling the presumptively reasonable fee." Arbor Hill III, 522 F.3d at 190 (brackets in Arbor Hill III). 'Community' in the context of determining attorneys' fees "is the district where the district court sits." Id. (citing Polk v. N.Y. State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983)). Thus, a district court may use an out-of-district hourly rate--or some rate in between the out-of-district rate sought and the rates charged by local attorneys--in calculating the presumptively reasonable fee if it is clear that a reasonable, paying client would have paid those higher rates. We presume, however, that a reasonable, paying client would in most cases hire counsel from within his district, or at least counsel whose rates are consistent with those charged locally. This presumption may be rebutted--albeit only in the unusual case--if the party wishing the district court to use a higher rate demonstrates that his or her retention of an out-of-district attorney was reasonable under the circumstances as they would be reckoned by a client paying the attorney's bill.

Id. at 191. However, because "the border between the Eastern and Southern Districts of New York is uniquely permeable," the forum rule "'should not be read so strictly as to create an unreasonable disincentive for Manhattan-based attorneys to bring . . . suits in Brooklyn.'" Luca, 2008 WL 2435569, at *9 (quoting New Leadership Comm. v. Davidson, 23 F. Supp. 2d 301, 305 (E.D.N.Y. 1998)). Indeed, "[a] strict application of the forum rule would ignore this geographic reality and its economic consequences." Id.

In addition to consideration of an attorney's out-of-district status, "[i]n determining this [hourly] rate, a district court must 'bear in mind all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees,'" including "the twelve so-called Johnson factors." Luca, 2008 WL 2435569, at *8 (quoting Arbor Hill III, 522 F. 3d at 190); see also Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 206 (E.D.N.Y. 2007) ("To determine the reasonable hourly rate, the Court must consider the factors enumerated in Johnson [], in addition to bearing in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." (citations, internal quotations, and footnote omitted)). The Johnson factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (quoted in Arbor Hill III, 522 F.3d at 186 n.3; Lucas, 2008 WL 2435569, at *8). Finally, "[t]he size of the firm may also be considered as a factor in determining the hourly rate, 'primarily due to varying overhead costs.'" Simmons v. N.Y. City Transit Auth., No. 02-CV-1575 (CPS)(RLM), 2008 WL 630060, *3 (E.D.N.Y. Mar. 5, 2008) (quoting Cioffi v. N.Y. Cmty. Bank, 465 F. Supp. 2d 202, 219 (E.D.N.Y. 2006)).

2. Hours Reasonably Expended

The party seeking attorneys' fees bears the burden of supporting its claim by accurate, detailed, contemporaneous records. See N.Y. State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983); McCann v. Coughlin, 698 F.2d 112, 131 (2d Cir. 1983); Brady, 455 F. Supp. 2d. at 209.

And, "[j]ust as a lawyer in private practice may not bill a client for hours not reasonably spent on the client's case, a lawyer may not so bill his adversary." Brady, 455 F. Supp. 2d at 208 (citing Hensley, 461 U.S. at 434). Thus, when determining "whether the number of hours spent by Plaintiff's counsel were reasonable, the Court must 'use [its] experience with the case, as well as [its] experience with the practice of law, to assess the reasonableness of the hours spent . . . in a given case.'" Guardado v. Precision Fin'l, Inc., No. 04-CV-3309 (JS)(AKT), 2008 WL 822105 (E.D.N.Y. Mar. 25, 2008) (quoting Fox Indus., Inc. v. Gurovich, No. CV 03-5166, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (further citation omitted)) (brackets in Guardado); see also DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985) ("The reasonableness of the time claimed is to be judged by standards of the private bar as informed by the district court's familiarity with the particular case and its experience in such matter."); Brady, 455 F. Supp 2d at 208 ("District courts have broad discretion to determine the reasonableness of hours based on their general experience and familiarity with the case . . . ." (quotation marks omitted)). To realize a reasonable result, district courts "may employ a variety of practical methods for 'trimming fat' from an excessive fee application, such as 'across-the-board percentage cuts,'" Brady, 455 F. Supp 2d at 208-09 (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987)), in order to eliminate "excessive, redundant, or otherwise unnecessary" hours. See Hensley, 461 U.S. at 434 ("billing judgment" is an important component in fee setting); see also Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (any hours which are "excessive, redundant, or otherwise unnecessary" should be excluded); Stirrat v. Ace Audio/Visual, Inc., No. 02-CV-2842 (SJ), 2007 WL 2229993, *3 (E.D.N.Y. July 31, 2007) ("In dealing with such surplusage, the court has discretion to simply deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.").

3. Overall Adjustments

"Absent extraordinary circumstances, the [lodestar] calculation should not be adjusted." Brady, 455 F. Supp. 2d at 214 (citing Blum v. Stenson, 465 U.S. 886, 898-99 (1984)). Upward adjustments in fee-shifting cases are "essentially proscribed in fee-shifting cases" in the Second Circuit. Id. (citing Loper v. N.Y. City Police Dep't, 853 F. Supp. 716, 722 (S.D.N.Y. 1994)). The two recognized, but limited, exceptions are where there has been "excessive delay" or where "public policy" warrants it because a case is "worthy of judicial encouragement." Id. (citing Loper, 853 F. Supp. at 722-23). Conversely, "[w]here a nonetheless prevailing plaintiff achieves only nominal or minimal success, a reduction to the lodestar is appropriate." Id. at 215 (citing Levy v. Powell, No. CV-00-4499 (SJF), 2005 WL 1719972, *12 (E.D.N.Y. July 22, 2005)). "The Supreme Court instructs that in such cases the lodestar should only be reduced for unsuccessful claims that are 'based on different facts and legal theories.'" Id. (quoting Hensley, 461 U.S. at 434-35); see also Luca, 2008 WL at *7 (following the instruction of the Hensley court in focusing on the overall relief obtained).

B. The Instant Case

1. Reasonable Hourly Rate

Plaintiff Brian Kauffman claims, inter alia, that he retained the Bernbachs primarily because his former employer, Defendant Maxim, "had been embroiled in lawsuits, including employment-related cases," and had "followed a highly aggressive, 'take no prisoners' approach to defending those suits." (Kauffman Aff. ¶4.) According to Kauffman, he felt he required:

the kind of expert employment-law litigators who would be able to effectively, consistently and successfully counter all that defendant and its lawyers would undoubtedly throw at me, and in searching for such litigators I was directed to Bernbach Law Firm PLLC as attorneys who embodied all of the attributes I was seeking. (Id. at ¶5.) Kauffman does not indicate that he considered any other attorneys, much less any located within the Eastern District of New York, as possible advocates on his behalf.

Jeffrey Bernbach ("Jeffrey") and Jason Bernbach ("Jason") have each submitted a declaration outlining their respective backgrounds in employment discrimination representation.

(a) Jeffrey Bernbach's Declaration

Jeffrey's customary billing rate has been Four Hundred Ninety-Five Dollars ($495) per hour for approximately three (3) years, before which it was Four Hundred Fifty Dollars ($450) per hour. (Jeffrey Aff. ¶3; see also Ex. 1 attached to Jeffrey Aff. (declarations of various clients attesting to Jeffrey's current hourly rate of $495 per hour*fn5 ).) Jeffrey has been a practicing attorney for forty (40) years, concentrating in employment law and employment discrimination law under federal, state and local civil rights laws "before numerous federal and state judicial and administrative tribunals." (Id. at ¶ 8.) He began his legal career as a legal advisor to a member of the National Labor Relations Board, worked in the labor practice department of Cravath, Swaine and Moore for four and one-half (4 1/2 ) years, and served as "Chief Labor Counsel" for The Hearst Corporation for three and one-half (3 1/2 ) years. (See id. at ¶9.) Thereafter, he began his own practice which continues despite numerous offers to merge with large New York City firms. (See id.) Jeffrey has authored books on job discrimination, and served as a legal commentator in the field of employment law ...

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