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SEK v. BETHLEHEM STEEL CORP.

January 9, 1979

John R. SEK
v.
BETHLEHEM STEEL CORPORATION



The opinion of the court was delivered by: LUONGO

This Title VII action was formerly assigned to the late Senior Judge Thomas J. Clary. At the close of the trial, Judge Clary entered judgment for defendant Bethlehem Steel Corporation. See 421 F. Supp. 983 (E.D.Pa.1976), Aff'd mem., 565 F.2d 153 (3d Cir. 1977), Cert. denied, 436 U.S. 920, 98 S. Ct. 2268, 56 L. Ed. 2d 761 (1978). Judge Clary also determined that Bethlehem Steel Corporation, as the "prevailing party" in this action, 42 U.S.C. ยง 2000e-5(k) (1976), was entitled to an award of attorneys' fees. See generally Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978). His opinion, dated October 26, 1976, stated in part:

"An order will issue directing the parties to confer and attempt to agree to reasonable attorney's fees in view of the financial circumstances of the plaintiff. If the parties cannot agree, attorney's fees will be fixed in further proceedings."
 
421 F. Supp. at 994.

 The parties never reached an agreement, however, for plaintiff, who had proceeded Pro se throughout this litigation, repeatedly resorted to the Court of Appeals for the Third Circuit, as well as the Supreme Court of the United States, in an effort to overturn Judge Clary's order. On October 21, 1977, the court of appeals affirmed Judge Clary's ruling by judgment order, and awarded costs in connection with the appeal to Bethlehem Steel. *fn1" Document No. 67. Plaintiff then sought a writ of certiorari from the Supreme Court. On January 24, 1978, Bethlehem Steel filed its petitions for assessment of attorneys' fees and for payment of costs awarded by the court of appeals. Documents Nos. 74, 75. On January 30, 1978, while plaintiff was still pursuing his remedies in the Supreme Court, this case was reassigned to me, due to Judge Clary's death in the intervening time. Document No. 78. The Supreme Court denied plaintiff's petition for a writ of certiorari on May 22, 1978. 436 U.S. 920, 98 S. Ct. 2668, 56 L. Ed. 2d 761.

 To obtain information in support of a reasonable fee award, counsel for Bethlehem Steel deposed plaintiff on July 7, 1978, regarding his financial circumstances. Counsel then filed that deposition (Document No. 94) with the Court, along with affidavits concerning the number of hours devoted by counsel to these proceedings in the district court, in the court of appeals, and in the Supreme Court.

 On October 25, 1978, after the foregoing materials had been filed with the court, the courtroom deputy mailed notice to both parties that a hearing would be held at 10:00 a.m. on Thursday, November 9, 1978, in connection with Bethlehem Steel's two outstanding petitions. The courtroom deputy also spoke to plaintiff by telephone on two occasions, and confirmed that plaintiff would be present at the scheduled hearing. However, plaintiff failed to appear at 10:00 a.m. on the appointed day. At approximately 11:00 a. m., the courtroom deputy placed a telephone call to plaintiff's residence, and plaintiff's wife advised him that plaintiff had sent a letter to the court by certified mail, stating that plaintiff would be unable to attend due to illness. No such letter was received during the working day of November 9. *fn2" When the courtroom deputy reported that plaintiff would not be present at the hearing, counsel for Bethlehem Steel handed up various exhibits in support of its two petitions. Several weeks later, counsel submitted a supplementary affidavit bearing on the petition for attorneys' fees. Document No. 96. Under the circumstances, I shall consider both petitions based on the present record, which consists of plaintiff's deposition and the various exhibits and affidavits submitted by Bethlehem Steel.

 I note in passing that Bethlehem Steel has also submitted a bill of costs in connection with the trial of this case. In accordance with Local Rule 38, the Clerk of this court will tax costs in the first instance. See E.D.Pa.R. 38.

 PETITION FOR PAYMENT OF COSTS AWARDED BY THE COURT OF APPEALS

 On February 24, 1977, shortly after plaintiff filed the notice of appeal from Judge Clary's order, he deposited a check in the amount of $ 250.00 in the Registry of this court as security for costs on appeal. See generally Fed.R.App.P. 7. In its judgment order dated November 21, 1977, the court of appeals specifically taxed costs totalling $ 150.60 in favor of Bethlehem Steel. (This sum represented costs incurred in printing the brief and portions of the appendix thereto.) It appears that all that I am called upon to do in this connection is to enter an order directing the Clerk of this court to pay that amount to Bethlehem Steel, pursuant to the court of appeals' determination. I will enter an order to that effect.

 PETITION FOR AWARD OF ATTORNEYS' FEES

 In its petition for assessment of attorneys' fees, Bethlehem Steel seeks an award based on the reasonable value of services rendered by its counsel both for the trial of this case and the appeal taken by plaintiff. As I noted earlier, Judge Clary determined that Bethlehem Steel is entitled to a fee award with respect to the trial of this case, and the court of appeals affirmed that determination by judgment order. As for the petition for fees relating to the appeal, however, no such determination has yet been made. Bethlehem Steel sought such an award following the affirmance of Judge Clary's order, but the court of appeals denied that request "without prejudice to its presentation to the district judge." Document No. 69; See note 1 Supra. After examining the entire file in this case, I believe that Bethlehem Steel, as the "prevailing party" on appeal, is entitled to a fee award for the appeal. Once Judge Clary determined that plaintiff's legal claim was so frivolous as to justify a fee award to the prevailing defendant, plaintiff's persistent efforts to secure a reversal on appeal were likewise frivolous. Accordingly, a fee award for the appeal is justified here. See, e. g., Kutska v. California State College, 564 F.2d 108 (3d Cir. 1977).

 The Court of Appeals for the Third Circuit has prescribed a detailed method for computing an award of attorneys' fees. See, e. g., Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (1973) (Lindy I ), 540 F.2d 102 (1976) (en banc) (Lindy II ); Keown v. Storti, 456 F. Supp. 232, 236 (E.D.Pa.1978) (collecting cases). First, the district court must determine "the number of hours reasonably devoted to the claims upon which (the prevailing party) was successful." Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d Cir. 1978). Next, the court must determine "the hourly rate that reasonably should be charged for those services." Keown v. Storti, supra, 456 F. Supp. at 237. The number of hours, multiplied by the hourly rate, determines the so-called "lodestar," which is the starting point in assessing a reasonable attorneys' fee. E. g., Hughes v. Repko, 578 F.2d 483, 486-88 (3d Cir. 1978) (separate opinion of Seitz, C. J.); Id. at 489-91 (Rosenn, J., concurring); Id. at 491-93 (Garth, J., concurring). This figure may then be augmented or diminished, where other aspects of the case warrant such an adjustment. See, e. g., Shlensky v. Dorsey, 574 F.2d 131, 150-51 (3d Cir. 1978); Keown v. Storti, supra, 456 F. Supp. at 241 (Lindy I and Lindy II authorize consideration of "the contingent nature of success, which may be used to increase the award, and the quality of the attorney's work, which may be used to increase or decrease the award"). In this case, pursuant to Judge Clary's order, the so-called "lodestar" is to be adjusted in light of plaintiff's financial circumstances. See generally Hughes v. Repko, supra, 578 F.2d at 490 (Rosenn, J., concurring) (district court may exercise its discretion and adjust the "lodestar" based on the losing party's ability to pay).

 Although counsel for Bethlehem Steel have furnished the court with an affidavit stating that Bethlehem Steel paid more than $ 30,000 in counsel fees to the firm of Morgan, Lewis & Bockius in connection with this case, both parties agree that no "reasonable" fee award here, in light of plaintiff's financial circumstances, would even approach that amount. Indeed, Bethlehem Steel, in its petition for counsel fees, seeks only $ 7,500, which is less than one-fourth of the amount it actually paid out. Recognizing that plaintiff's ability to pay, rather than the reasonable value of counsel's services, will as a practical matter be the primary determinant of the fee award here, counsel for Bethlehem Steel have declined to specify the actual hourly rates used in billing for their services in this case. Instead, counsel have submitted "minimum" hourly rates that are well below the prevailing hourly rates for attorneys of their stature, and they fully expect that the resulting "lodestar" figure here will be less than the reasonable value of their services, even before that figure is reduced based on plaintiff's ability to pay. Given the unique facts presented here, I believe that this somewhat unorthodox approach need not prevent me from making an appropriate fee award here. Cf. Rodriguez v. Taylor, 569 F.2d 1231, 1247-48 (3d Cir. 1977) (discussing alternate means of ...


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