$70.00 per hour for in-court and out-of-court time, plus preparation time for plaintiffs' fee application, the requested fee amounts to $3,850.00.
Since the defendants prevailed in over two-thirds of the legal issues involved, the amount of the award should be proportionate to the extent the plaintiffs prevailed in the suit. In Marr v. Rife, 503 F.2d 735, 744 (6th Cir. 1974) the action was brought under § 1982 and Title VIII, 42 U.S.C. §§ 3601-3619. Several of the defendants were exonerated and the court indicated that the better rule was to allow a plaintiff a proportionate amount of the attorney's fees to the extent the plaintiff prevailed in the suit. See also Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1008 (9th Cir. 1972); Walker v. Fox, 395 F. Supp. 1303, 1307 (S.D.Ohio 1975). Accordingly, plaintiffs are entitled to a proportionate amount of the attorney's fees to the extent they prevailed in the suit. This amount is estimated to be $1,275.00.
This "lodestar" figure of $1,275.00 should be awarded as increased or decreased by the quality of the legal work and the contingency of success. Lindy, supra.
The quality of the legal work on both sides was good. However, the issues here were simple particularly when compared to the difficult and complex issues in Lindy and Merola.2 Thus, the figure of $1,275.00 should be reduced because of the simplicity of the factual issues involved, the result obtained, and the criteria indicated in the Fair Housing Act, Title VIII, 42 U.S.C. §§ 3601-3619.
The litigation did not involve difficult or lengthy trial preparation as in Lindy and Merola. The quality of work required of counsel was not of a greater or lesser degree of skill and diligence than that of normally competent lawyers in the Western District of Pennsylvania.
The contingent nature of success was favorable for obtaining a verdict for damages. Plaintiffs' counsel was so confident of success he agreed not to charge any fee to the plaintiffs, who were earning substantial income; instead he relied, albeit erroneously, on the amount to be awarded by the jury. Customarily in this district when the chance of success depends on a jury verdict for a damage award, a contingent fee contract of 30% or 40% is generally entered into between counsel and his clients. Counsel's confidence of success apparently eliminated a contingent fee contract. His confidence was confirmed by the jury which took only four and one-half hours, including an hour and one-half for lunch, to arrive at a verdict in favor of plaintiffs.
Because of the simplicity of the case, the contingent nature of success including the apparent confidence of counsel to obtain a monetary award, and the result obtained, the "lodestar" figure should be reduced.
One other factor should be considered. In many cases arising under civil rights laws the citizen who must sue to enforce the law as a "private attorney general" has little or no money with which to hire a lawyer. Thus, if private citizens are to be able to assert their civil rights, and if those who violate the fundamental laws are not to proceed with impunity, victims of discrimination must have the opportunity to recover what it costs them to vindicate their rights in court "as a means of securing broad compliance with the law." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968).
However, the case sub judice does not present this situation. The plaintiffs are earning approximately $22,000.00 per year. A proviso was added to the discretionary award of counsel fees in housing discrimination cases under Title VIII. Following the recent Congressional attempt to establish uniformity in the award of counsel fees, (See Senate Report 94-1011 and H.R. Report 94-1558, 94th Cong. 2d Sess., U.S. Code Cong. & Admin.News 1976, p. 5908.), it is reasonable that a court awarding fees in a § 1982 housing action should give some consideration to the criteria set up by Congress for awarding fees under the Fair Housing Act, Title VIII, § 3612(c). Obviously, § 1982 and Title VIII of the Fair Housing Act are complimentary remedies with similarities but having some differences in coverage and enforcement mechanism. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968).
Under the Fair Housing Act of 1968, Title VIII, 42 U.S.C. §§ 3601-3619, fees are allowed in a housing discrimination suit, but § 3612(c) provides:
"The court . . . may award to plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney's fees." (Emphasis supplied).