The lodestar will not be increased on the basis of the contingent nature of the case. There is, of course, some contingency of success in all cases of disputed liability, and an attorney's fee can be recovered, as a practical matter, only if the plaintiff is successful. Liability in this case depended on disputed factual issues, providing no exceptional trial risks, and requiring no more than normal trial preparation.
Claimants also assert, in seeking a 50% increment to the lodestar, that the high quality of their work warrants a substantial increment. I do not find the quality of the work outstanding, especially in light of Ms. Cutner's and Mr. Simon's extensive experience and knowledge in the field of racial discrimination in employment factors that have already been taken into consideration in setting the hourly rate. The initial failure to assert, or at least to attempt a pretrial amendment of the complaint to assert a section 1981 claim, came perilously and needlessly close to a fatal error. It caused all involved in the case to expend a great amount of additional time and effort. Similarly, the failure to assert any claim before either the PHRC or the EEOC against the individual defendant, William Armstrong, is not indicative of exceptional quality. When defense counsel, at the close of plaintiff's case in chief, raised the issue of the failure of proof on the jurisdictional question, plaintiff's counsel was apparently unprepared to meet the issue, and thereafter expended great effort in unsuccessfully attempting to extrapolate from the record the necessary proof. Much of the time allowed in preparing of post-trial briefs and proposed findings and conclusions was exerted in this effort. I am personally convinced that had counsel properly prepared for the trial, it could have been proved, and perhaps even agreed to by stipulation, that the corporate defendant had, in fact, employed the requisite number of employees for the requisite period of time. Had this been done, it is unlikely that an amendment would have been necessary, at least as to the corporate defendant. In any event, it should be noted that proof as to the number of employees of defendants was subject to exact determination.
Another serious deficiency was the failure to list all potential witnesses on the pretrial memorandum filed by Ms. Cutner. No pretrial amendment was sought by Mr. Simon, even though in preparation for trial he knew that certain unnamed witnesses would be crucial to the presentation of his client's case.
I point out these avoidable problems and deficiencies not as personal criticism of counsel, but rather to articulate the reasons for my decision not to increase the lodestar figure to reflect the contingency factor or the quality of the work. Accordingly, no upward adjustment of the lodestar will be made, either in a dollar amount or a percentage increment.
The next step is to allow a reasonable sum for preparing the fee petition. Ms. Cutner asks an allowance of five hours time, which, although not immodest, is reasonable. However, if proper time records are maintained, much of the work in preparing a fee petition should be largely routine, scarcely justifying a charge of $ 60 per hour. Unfortunately, most fee applications reflect an inordinate amount of time and effort expended in attempting to justify a substantial increment to the lodestar figure. Such petitions frequently contain self-laudatory statements more fitting in a commercial advertisement than in a professional presentation.
Mr. Simon's petition undoubtedly took much longer to prepare, but, except for its itemization of the hours spent on various activities, was of no substantial benefit to me in establishing a reasonable fee. A trial judge should be presumed to be aware of the extent and quality of trial counsel's work without a long recitation of the hazards and pitfalls that trial counsel so skillfully circumvented. I recognize, of course, that the applicable case law seems to demand great detail in fee applications, and that a cautious attorney fears saying too little far more than saying too much. Nevertheless, when approximately 15% of the time for which the attorney seeks compensation consists of preparing the fee application, one may wonder in whose interest the litigation is conducted. I will allow Ms. Cutner 5 hours and Mr. Simon 8 hours, or the respective sums of $ 300 and $ 480 for preparing the fee petitions. These amounts, when added to the fees calculated previously under the Lindy II analysis, yield a total of $ 16,423.75.
In this case I will make a downward "post-Lindy discretionary adjustment." In doing so, I consider the following factors:
The judgment and end results of this litigation have not appreciably furthered the important substantive goals of any of the civil rights acts. Although the litigation has vindicated important rights guaranteed to the plaintiff, it involves but one employee in a single employment situation. No class of employees was involved. There was no evidence of any general discriminatory employment practices by the employer. The litigation neither presented any novel legal situations nor produced any new law of any significance. It has not altered, either for better or worse, the existing body of employment discrimination law in any way that might, through the principle of stare decisis, affect the rights or liabilities of parties to future employment discrimination actions.
The attorneys' fees calculated in this case under the Lindy formula are more than twice the amount of damages awarded. This disproportion, of course, would not necessarily require a reduction of the fee award if it appeared, for example, that important public interests had been advanced beyond those of the immediate litigants. As Judge Rosenn observed in his concurrence in Hughes, at 490:
There may be cases in which the damages awarded are slight, but which nonetheless serve important governmental policies. In such cases, if the attorney's hours are reasonable, the court may balance the small verdict with the important benefits produced by the litigation.
Absent such important benefits, however, the implication is that where damages are relatively small in comparison with the lodestar figure, a downward "post-Lindy discretionary adjustment" is appropriate.
As previously noted, although no reduction in the number of compensable hours will be made to account for the change of counsel, undoubtedly a certain amount of duplication of time and effort occurred. Also as previously noted, no express deduction from the lodestar has been made for various serious deficiencies in the pleading and pretrial stages of the case. However, these are additional factors that I conclude weigh in favor of a downward adjustment of the fee. Essentially, this was a simple employment discrimination case involving one employee. The attorneys who ultimately secured plaintiff his rights are entitled to adequate compensation, but it must be "reasonable" under all of the circumstances.
An appropriate "post-Lindy discretionary adjustment" in this case is to reduce the Lindy amount by one-third, making total fees of $ 10,949.22, still substantially in excess of the damages awarded.
Plaintiff will also be awarded costs incurred by his attorneys in prosecuting this action, pursuant to 28 U.S.C. § 1920. Ms. Cutner's total costs were $ 377.93, to which amount defendants offer no objection. Mr. Simon incurred $ 228.74 in costs, of which $ 22.78 was spent for "Miscellaneous transportation, etc." Defendants properly object to this latter amount as not reimbursable under section 1920, and it will accordingly not be allowed. See Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657, 667 (M.D.Pa.1977). The remainder of Mr. Simon's costs, in the amount of $ 205.96, will be allowed.
Thus, defendants' total liability for attorneys' fees and costs in this case is $ 11,533.11. Defendants, however, have made one final argument in a recent letter to the court, concerning the apportionment of liability for the plaintiff's fees between the corporate defendant and the individual defendant. They argue that since the individual defendant is not liable for the entire amount of the judgment, he should only be held liable for a proportionate share of the attorneys' fees. Defendants cite no cases in support of this argument, but seem to premise it simply upon notions of fairness. This is an insufficient basis for such a request. There is no indication in the present case that the attorneys' fees incurred by the plaintiff would have been any less if he had chosen to proceed only against the individual defendant, and as a result, the individual defendant could conceivably have been required to pay the entire amount of the fees herein determined. To hold him jointly and severally liable, with the corporate defendant, for the entire amount of this fee award works no injustice upon him, and indeed has the benefit of insuring that Congress's goal of awarding prevailing civil rights plaintiffs their reasonable attorneys' fees will not be frustrated simply by the impecuniousness of one of the defendants.
Obviously, under present third circuit law, the determination of reasonable attorneys' fees is a complicated and demanding process. The setting of the lodestar especially requires precise and thorough calculation, including close scrutiny of every one of hundreds, perhaps thousands, of hours logged by plaintiff's counsel. On the other hand, the "post-Lindy discretionary adjustment" seems to be an especially flexible and open-ended device, permitting consideration of virtually any factor that the court deems relevant and is willing to specify in support of its fee award decision. Such elements of exact precision in determining the lodestar and broad discretion in adjusting it, appear to be incongruous partners to be joined in this single enterprise. The latter is able to undo in a twinkling, in a reasonable but quite unscientific way, all of the careful calculations of the former. Such discretion, however, is a natural and appropriate by-product of the standard of reasonableness that Congress wished to apply to the determination of statutory attorneys' fees, since reasonableness, insofar as it defies precise calculation by empirical data, invites an element of subjective judgment. It requires, beyond the juggling of figures, a fair and objective weighing of the many special circumstances of each case.
Toward this end, the Third Circuit Court of Appeals has formulated the approach set forth in Lindy and its progeny. This approach consists, as a practical matter, of at least six separate and discreet determinations: hours, hourly rate, contingency adjustment, quality adjustment, fee petition allowance and "post-Lindy discretionary adjustment." Under such an approach, the determination of a reasonable fee may often raise more complicated factual and legal issues and consume more judicial time and energy than the litigation of the merits of the case itself. This, in turn, may unfortunately create the impression, especially among the public, that the courts attach greater significance to the rights of attorneys to receive substantial fees than to the rights of litigants. It would be prudent, I believe, for trial courts to bear this possibility in mind in making statutory fee determinations, in order to best reconcile the teachings of the Lindy line of cases with Congress's simple goal of providing successful civil rights plaintiffs with "a reasonable attorney's fee."
I have attempted to determine a reasonable fee based on the dictates of the case law of this circuit. Nevertheless, I recognize that because of the broad divergence of the parties' views concerning the amount each thinks reasonable, and because of the broad discretion vested in the trial court by statute and case law to compromise that divergence, it is probable in this case, as in all fee determinations, that the results will not be entirely satisfactory to any of the attorneys or parties to the litigation.
Upon consideration of plaintiff's petitions for attorneys' fees and costs, and all supporting and opposing memoranda of law, it is ORDERED that plaintiff be GRANTED attorneys' fees and costs pursuant to 42 U.S.C. § 1988 in the total amount of Eleven Thousand Five Hundred Thirty-three Dollars and Eleven Cents ($ 11,533.11), as follows:
Defendants shall be jointly and severally liable for these amounts.