Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brig v. Port Authority Trans Hudson

United States District Court, S.D. New York

March 28, 2014



ROBERT P. PATTERSON, Jr., District Judge.

Plaintiffs Jason Brig and John Buchala are prevailing parties under the Federal Rail Safety Act, 49 U.S.C. § 20109 (the "FRSA"). On December 16, 2013, Plaintiffs' attorney Marc Wietzke filed a motion and supporting memorandum of law and declaration seeking to recover $184, 552.64 in attorney fees and litigation costs. (Mem. of Law in Supp. re: Mot. for Att'y Fees ("Pls.' Mem") at 2, ECF No. 64; Aff. in Supp. re: Mot. for Att'y Fees ("Pls.' Decl.") ¶ 1, ECF No. 65.) On January 15, 2014, Defendant Port Authority Trans-Hudson Corporation ("PATH" or the "Defendant") submitted a response, arguing that the amount requested by Mr. Wietzke is excessive and unreasonable and therefore should be reduced. (Resp. to Mot. for Au"), Fees ("Def.' s Mem.") at 3, ECF No. 69.) On February 9, 2014, Mr. Wietzke filed a reply declaration that supplemented a number of aspects of his first submissions and clarified that Plaintiffs are requesting $178, 800 in attorney fees-298 hours of work billed at $600 per hour plus an additional $9, 112.64 in costs. for a total award of $187, 912.64.[1] (See Reply Aff. in Supp. re: Mot. for Att'y Fees ("Pls.' Reply Decl."), ECF No. 72.)

For the reasons that follow, the Plaintiffs are awarded $128, 115.00 in attorney fees- based on an hourly rate of $450 for 284.7 hours-and $9, 112.64 in litigation costs.


On March 24, 2010, the Plaintiffs, who are PATH employees, brought an action under the FRSA, alleging that the Defendant violated the FRSA by harassing, intimidating, and penalizing the Plaintiffs for reporting an incident in which they were almost almost struck by a consist. (See Compl. Against PATH., Ea' No. 1.) Following a five-day trial, on June 28, 2013 a jury found for the Plaintiffs and awarded each of them $250, 000 in compensatory damages and $500, 000 in punitive damages. (See Judgment, July 19, 2013, ECF No. 41.) On November 21, 2013, the Plaintiffs agreed to a decreased damage award totaling $300, 000 as a condition of the Court's denial of the Defendant's post-judgment motion for a new trial. (See Letter Accepting Decision Reducing Verdict, ECF No. 57.) The Plaintiffs now request an award for attorney fees and costs pursuant to § 20109(e) of the FRSA. (Pls.' Decl. 1.)


Under the FRSA, the relief provided to a prevailing plaintiff "shall include... litigation costs, expert witness fees, and reasonable attorney fees." 49 U.S.C. § 20109(e)(2). As the Second Circuit recently affirmed, "[b]oth this Court and the Supreme Court have held that the lodestar the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a "presumptively reasonable fee.'" Millea v. Metro-N. R. Co. , 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany , 522 F.3d 182, 183 (2d Cir. 2008)). The fee determined by the lodestar method is presumed reasonable because it "is one that is adequate to attract competent counsel, but that does not produce windfalls to attorneys." Blum v. Stenson. 465 U.S. 886 , 897 (1984) (internal citation and quotation omitted). Under the lodestar formulation, a reasonable fee is determined by calculating "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart , 461 U.S. 424, 433 (1983): see also Perdue v. Kenny A. , 559 U.S. 542. 542 (2010) (confirming that the lodestar calculation is the prevailing methodology for determining reasonable attorney fees).

Although the Defendant has requested that the Court take into account the twelve factors outlined by the Fifth Circuit in Johnson v. Ga. Highway Express, Inc., 488 I-7.2d 714, 717-19 (5th Cir. 1974), the discretionary methodology articulated in Johnson was rejected by the Supreme Court in Perdue, which endorsed the lodestar's more objective and predictable calculation. See Perdue , 559 U.S. at 552 ("[U]nlike the Johnson approach, the lodestar calculation is objective.' and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.") (citing Hensley , 461 U.S. at 433).

Accordingly, the lodestar method, "determining the amount of a reasonable fee [by calculating] the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, " Hensley , 461 U.S. at 433, based on "prevailing market rates" in the district in which the case was brought, Perdue , 559 U.S. at 551 (citing Blum , 465 U.S. at 895), will be applied here. Under the lodestar method, "the fee applicant bears the burden of... documenting the appropriate hours expended and hourly rates." Id . at 437.


A. Whether Mr. Wietzke's Time Was Reasonably Expended

In order to recover attorney fees in the Second Circuit. three conditions must be met with respect to the reasonableness of the time billed. First, the hours submitted must be documented with contemporaneous records. See New York State Assn for Retarded Children, Inc. v. Carey , 711 F.2d 1136, 1148 (2d Cir. 1983). Second, the records must not be overly vague. See Hensley , 461 U.S. at 433. Finally, the billed time must have been reasonably spent. Id . at 434. The Defendant challenges Mr. Wietzke's billed time on each of these grounds, arguing that his submissions are deficient in their documentation and reflect excessive or unnecessary work. (Def.'s Mem. at 10.) Upon review of Mr. Wietzke's timesheets and having considered the Defendant's arguments, the Defendant's contentions are found to be generally without merit and deducts only 13.3 hours of Mr. Wietzke's time as unreasonably billed, leaving the Plaintiffs with an award of 284.7 billable hours.

1. Whether the Time Records Submitted by Mr. Wietzke Are Contemporaneous

The Defendant asserts that "[t]he billing record provided in support of [P]laintiffs' fee application appears to be nothing more than a table created by word processing software, and not contemporaneous time records as asserted by [P]laintiffs." (Def.'s Mem. at 10.) En support of this, the Defendant claims that "the purported timesheets lack any indicia of a timekeeping system, such as client name(s), client number, invoice number or invoice date, and the pages are unnumbered save for the numbering affixed by the [filing] system." (Id.) However, these alleged defects which essentially amount to a critique of Mr. Wietzke's lack of a more sophisticated timekeeping system-do not reflect the requirements of the Second Circuit and do not foreclose Mr. Wietzke's records from meeting the contemporaneous requirement. See Carey , 711 F.2d at 1148 (records need only specify "the date, the hours expended, and the nature of the work done"). The Plaintiffs have submitted that, during this matter; Mr. Wietzke entered "time directly into [his] spreadsheet program upon completion of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.