United States District Court, W.D. New York
SEAN M. WOODWARD, CHARLES D. ALEXIS, NIAMBI D. PRESSLEY, JEFFREY A. McCARTER, JR. and ROBENA D. CATHEY, Plaintiffs,
ENERGY CURTAILMENT SPECIALISTS, INC. and BIDURENERGY, INC., Defendants.
DECISION AND ORDER
H. KENNETH SCHROEDER, Magistrate Judge.
This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #9.
Plaintiffs, represented by attorney Prathima Reddy, commenced this action alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"). Dkt. #1. Mr. Alexis, Mr. McCarter and Mr. Cathey also alleged claims of hostile work environment and retaliation in violation of Title VII and the NYSHRL. Dkt. #1.
Ms. Reddy's retainer agreement provided that plaintiffs would pay onethird of the net recovery to counsel. Dkt. #47-2; Dkt. #47-3 & Dkt. #47-4. The retainer agreement provides Ms. Reddy with a lien for her fee on any sum recovered by way of settlement "even though client may discharge attorney and obtain another attorney before settlement is received." Dkt. #47-2; Dkt. #47-3 & Dkt. #47-4. The retainer agreement also provides that Ms. Reddy may withdraw from the action at any time, on reasonable notice to plaintiffs. Dkt. #47-2; Dkt. #47-3 & Dkt. #47-4.
Ms. Reddy moved to withdraw as counsel for plaintiffs Charles D. Alexis and Robena D. Cathey on December 20, 2012. Dkt. #15. In support of her motion, Ms. Reddy affirmed that fundamental differences of opinion concerning the best approach to the litigation of the case and a breakdown in communication made it impossible for her to continue as counsel. Dkt. #15-1. Ms. Reddy further affirmed that
the positions that Ms. [sic] Alexis and Mr. Cathey continue to advocate, if acted upon, would not be in the best interest of co-plaintiffs, Mr. Woodward, Ms. Pressley and Mr. McCarter. It would be unethical for me to continue representing Mr. Alexis and Mr. Cathey.
Dkt. #15-1, ¶ 11. By text order entered January 22, 2013, Ms. Reddy was granted permission to withdraw as counsel for plaintiffs Charles D. Alexis and Robena D. Cathey. Dkt. #20.
On January 28, 2013, attorney Kevin P. Wicka filed a notice of appearance for plaintiffs Charles D. Alexis, Robena D. Cathey and Jeffrey A. McCarter. Dkt. #21.
Charles D. Alexis, Robena D. Cathey and Charles McCarter filed stipulations of dismissals on September 12, 2013. Dkt. ##39-41. Stipulations of dismissal were filed on October 30, 2013 with respect to the remaining plaintiffs, Sean Woodward and Niambi D. Pressley, who continued to be represented by Ms. Reddy. Dkt. ##44-45.
Currently before the Court is Ms. Reddy's motion for attorney's fees. Dkt. #47. In support of her motion, Ms. Reddy declares that she filed and oversaw administrative charges with the U.S. Equal Employment Opportunity Commission ("EEOC"), commenced this action, represented plaintiffs during an initial mediation session and subsequent settlement negotiations and collected and reviewed discovery documents in preparation for litigation of plaintiffs' claims. Dkt. #47-1, ¶¶ 13 & 25. Ms. Reddy submits documentation of the time spent working on plaintiffs' claims and seeks $3, 330.00 from the settlement proceeds paid to Charles D. Alexis; $2, 830.00 from the settlement proceeds paid to Robena D. Cathey; and $4, 230.00 from the settlement proceeds paid to Jeffrey McCarter. Dkt. #47-1, ¶ 15.
Mr. Wicka argues that Ms. Reddy is not entitled to a charging lien as set forth in New York Judiciary Law § 475 because her withdrawal from representation of Charles D. Alexis and Robena D. Cathey was without good cause and her discharge by Mr. McCarter was for cause. Dkt. #54, pp.2 & 7. In fact, Mr. Wicka argues that Ms. Reddy's failure to inform Mr. Alexis, Mr. Cathey and Mr. McCarter of defendant's settlement offer constitutes misconduct sufficient to forfeit her charging lien. Dkt. #54, pp.6 & 7-8. In addition, Mr. Wicka argues that Ms. Reddy forfeited her charging lien because plaintiffs' interests in pursuing the litigation diverged over the potential use of an audio recording obtained by Mr. Alexis. Dkt. #54, pp.5-6. Even if Ms. Reddy is entitled to attorney's fees, Mr. Wicka argues that such fees should be calculated from the commencement of the federal court action on April 27, 2012 rather than the commencement of Ms. Reddy's representation of plaintiffs before the EEOC. Dkt. #54, pp.8-9. Mr. Wicka also challenges Ms. Reddy's hourly rate of $250 for Mr. Alexis and Mr. Cathey and $270 for Mr. McCarter, given that he charges an hourly rate of $225 even though he has more experience and peer recognition than Ms. Reddy. Dkt. #54, p.11. Finally, Mr. Wicka challenges the value of Ms. Reddy's services to plaintiffs given her lack of success in mediation and failure to demand discovery or respond to defendants' discovery demands. Dkt. #50, ¶¶ 16 & 21 & Dkt. #54, pp.12-13.
Ms. Reddy replies that her representation of plaintiffs conformed with professional and ethical standards and specifically declares that she "never failed to present any settlement offers to any plaintiff in this case" and, although acknowledging concern over Mr. Alexis' intent to release an audiotape of a conversation between him and his supervisor to the media, denies that she would not have disclosed the audiotape at the appropriate time. Dkt. #55, ¶¶ 3, 5 & 16. Ms. Reddy declares that the plaintiffs' interests in this matter are not divergent, but that the communications between her and Mr. Alexis and Mr. Cathey had deteriorated to the point where they were impacting Ms. Reddy's relationship with the other plaintiffs. Dkt. #55, ¶ 6. Ms. Reddy declares that she charges a standard fee of $250 per hour and argues that this is a reasonable hourly rate given her experience and qualifications. Dkt. #55, p.10. Ms. Reddy earned a BA in Economics from the University of California, Berkeley and a J.D. from Case Western Reserve School of Law and previously worked for the District of Columbia Office of Human Rights. Dkt. #55-2. She was admitted to practice in 2006.
During the time period during which Ms. Reddy represented plaintiffs, New York Judiciary Law § 475 provided:
From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties ...