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BYGOTT v. LEASEWAY TRANSP. CORP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 10, 1986

BERNARD F. BYGOTT, JR., JOHN MAHALIS, JOHN O'TOOLE, GREGORY PATTON and JOSEPH SNYDER
v.
LEASEWAY TRANSPORTATION CORPORATION, TERMINAL PERSONNEL, INC., SIGNAL DELIVERY SERVICE, INC. and HIGHWAY TRUCK DRIVERS AND HELPERS LOCAL 107

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, J.

 Presently before the court are defendant Highway Truck Drivers and Helpers Local 107's ("Local 107" or the "union") motion for a continuance of the plaintiffs' motion to allow discovery; plaintiffs' motion for summary judgment on the issue of damages; plaintiffs' motion for court-ordered attorneys' fees; plaintiffs' motion for other attorneys' fees; Local 107's motion for sanctions; and plaintiffs' motion for sanctions. For the reasons stated herein, Local 107's motion for a continuance to allow discovery will be denied; plaintiffs' motion for summary judgment on the issue of damages will be granted in part and denied in part; plaintiffs' motion for court-ordered attorneys' fees will be granted in part and denied in part; plaintiffs' motion for other attorneys' fees will be granted in part and denied in part; Local 107's motion for sanctions will be denied; and plaintiffs' motion for sanctions will be granted.

 FACTS

 The facts in this case have been substantially chronicled by this court in a previous opinion. Bygott v. Leaseway Transportation Corp., 622 F. Supp. 774 (E.D. Pa. 1985). The court held there that a genuine issue of material fact existed and precluded summary judgment. The court believed that a dispute existed at that time with respect to whether the union fairly and adequately investigated a grievance signed and filed by Local 107 union members, and also as to whether Terminal Personnel, Inc. ("TPI") and Signal Delivery Service, Inc. ("Signal") were alter ego employers or were single employers. The terms "alter ego employer" and "single employer" are used here and in these proceedings as specially defined employer-employee relationships developed through a course of litigation and case law for purposes of resolving certain types of labor disputes. See 622 F. Supp. at 780 (cases cited therein). For purposes of this opinion, however, TPI, Signal, and Leaseway Transportation Corporation ("Leaseway") are simply referred to hereinafter as the "employers."

 The issues of liability and damages were bifurcated by the court before trial, and the liability issue was subsequently tried before a jury. Plaintiffs represented a class, certified by the court on September 23, 1985, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class comprised the members of Local 107. *fn1" On November 6, 1985, the jury rendered its verdict finding that Local 107 breached its duty of fair representation and that Signal and TPI were not alter egos or single employers. See 622 F. Supp. at 782 n.11. Local 107 moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, which motion was denied on December 11, 1985. On January 10, 1986, Local 107 appealed the Final Judgment and Order that followed the denial of the union's post-trial motions.

 Four days later, on January 14, 1986, plaintiffs launched the initial salvo of motions presently before the court. Plaintiffs seek attorneys' fees and litigation expenses under two theories. First, plaintiffs argue that they are entitled to summary judgment on the issue of damages, which damages include attorneys' fees and litigation expenses. Under this theory, plaintiffs contend that attorneys' fees and litigation expenses are an integral element of damages. Second, plaintiffs argue that they are entitled to attorneys' fees and costs under either the "common benefit" exception or the "bad faith" exception to the American Rule that requires parties to pay their own attorneys for fees incurred.

 Local 107 counter-salvoed on January 27, 1986, and argued that plaintiffs' motions were filed too late under Rule 59(e) of the Federal Rules of Civil Procedure ("Rule 59(e)"), that the union's January 10, 1986 appeal divested this court of jurisdiction to rule upon plaintiffs' motions, and that, on the merits, plaintiffs' motions should be denied. In addition to answering plaintiffs' motions, Local 107 moved for imposition of sanctions on plaintiffs under Rule 11 of the Federal Rules of Civil Procedure ("Rule 11"). The union argued that, because of Rule 59(e) and because this court is without jurisdiction to decide plaintiffs' motions, plaintiffs' motions are not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and were imposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. See Rule 11. Local 107 also moved for a continuance to enable the union to make discovery into plaintiffs' calculation of attorneys' fees.

 On February 12, 1986, plaintiffs fired back a double-barreled reply to Local 107's opposition to plaintiffs' motions that included an answer to Local 107's motion for Rule 11 sanctions, and their own motion for Rule 11 sanctions asserting the same reasons that the union had used in its Rule 11 motion. See Rule 11.

 On March 13, 1986, plaintiffs filed a document headlined "Plaintiffs' Second Supplemental Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment for Damages and Motion for Attorneys' Fees and Litigation Expenses." In this document, plaintiffs set forth in detail their attorneys' fees and litigation costs and their legal arguments under Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) ("Lindy II"); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) ("Lindy I"), and the progeny of those cases. This document will be treated as a motion for attorneys' fees, and will be considered together with the document filed by plaintiffs on January 14, 1986, which seeks a court Order that plaintiffs are entitled to attorneys' fees and litigation costs.

 On March 28, 1986, Local 107 filed a supplemental answer to plaintiffs' motion for summary judgment for damages and motion for attorneys' fees and litigation expenses. The union reiterated the arguments it made in its first brief and, not unexpectedly, raised some new ones. In particular, the union challenged plaintiffs' counsel's billing rates, calculation of hours spent on this case, and the application of a multiplier.

 DISCUSSION

 1. Preliminary Issues

 At the outset, the court must determine whether it has subject matter jurisdiction over plaintiffs' motions and, if the court finds that it has jurisdiction, whether plaintiffs' motions are precluded by the operation of Rule 59(e).

 (a) Subject Matter Jurisdiction

 Local 107 argues that when it filed a notice of appeal with the United States District Court on January 10, 1986, jurisdiction over this case was transferred from the district court to the United States Court of Appeals for the Third Circuit. Consequently, according to the union, this court is without jurisdiction to consider plaintiffs' motion for summary judgment for damages and motion for attorneys' fees and litigation expenses. In support of its position, the union cites United States v. Lafko, 520 F.2d 622 (3d Cir. 1975); Walker v. Felmont Oil Corp., 262 F.2d 163 (6th Cir. 1958); and Moore's Federal Practice para. 203.11.

 Neither of the cases cited by Local 107 pertain to a district court's jurisdiction to decide an attorneys' fees petition after an appeal is filed on the underlying case. In Lafko, the third circuit held that a district court did not have jurisdiction to take more evidence after it had issued a final Order enforcing a summons issued by the Internal Revenue Service and an appeal was filed, unless the steps taken by the district court were to assist the court of appeals in its determination. In Walker, the United States Court of Appeals for the Sixth Circuit held that the district court did not have jurisdiction to receive a supplemental complaint filed under Rule 15 of the Federal Rules of Civil Procedure to cure jurisdictional defects after the appeal was filed. Moore's Federal Practice para. 203.11 also does not address the issue of whether the filing of an appeal on the underlying lawsuit divests the district court over a petition for attorneys' fees. Instead, that section merely states the general rule that an appeal transfers jurisdiction over matters involved in the appeal from the district court to the court of appeals.

 Numerous cases in this and other circuits hold that a district court retains jurisdiction to decide an attorneys' fees petition after the underlying case has been appealed. Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745 (5th Cir. 1985); Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985); Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160 (5th Cir. 1984); West v. Keve, 721 F.2d 91 (3d Cir. 1983). These cases are of two types. The first are those cases where attorneys' fees are an integral part of the damages award. The other type are those cases in which the attorneys' fees are collateral to the merits of the case.

 The court turns first to those cases where attorneys' fees are an integral part of damages. See Todd Shipyards Corp., supra; Alcorn County, Miss., supra. Those cases follow the traditional rule that an appeal is not valid where the district court's Order is not final. Venen v. Sweet, 758 F.2d 117, 120-121, n.2 (3d Cir. 1985); Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983); Shipbuilding & Dry Dock Co. v. Benefits Review Bd., 535 F.2d 758 (3d Cir. 1976). If the appeal is a nullity, the district court continues to have jurisdiction over the case. In Todd Shipyards, supra, the United States Court of Appeals for the Fifth Circuit held that, in an admiralty case, the district court's Order was not final until the district court had entered an attorneys' fee award. The Todd Shipyards court reasoned that attorneys' fees in an admiralty case were an integral part of the case and were not a collateral matter. Similarly, the Alcorn County court believed that attorneys' fees, like treble damages, were a part of the statutory scheme to encourage private enforcement of the RICO statute. Consequently, that court held that attorneys' fees under RICO were a mandatory part of damages and that the time for appeal ran from the date on which the district court entered a judgment awarding plaintiff attorneys' fees.

 On the other hand, a second line of cases considers circumstances where attorneys' fees were permitted as a recovery collateral or incidental to recovery on the main cause of action. White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 71 L. Ed. 2d 325, 102 S. Ct. 1162 (1982); West v. Keve, 721 F.2d 91 (3d Cir. 1983). In both White, supra, and West supra, attorneys' fees awards made by the district courts under 42 U.S.C. § 1988 while an appeal of the underlying cause of action was pending before the appellate courts were affirmed. In both cases, the district courts retained jurisdiction after the appeals of the cases were filed to award attorneys' fees to the parties which had prevailed in district courts.

 Applying these principles in the present case, the court believes that, regardless of whether attorneys' fees in this case are characterized as damages or as a collateral matter, the court retains jurisdiction over plaintiffs' motions. If plaintiffs' claim for attorneys' fees is an integral element of damages, then the court's November 7, 1985 Order was not a final judgment from which Local 107 could appeal, and therefore this court retains jurisdiction to determine plaintiffs' motions. If, however, plaintiffs' claim for attorneys' fees is collateral to the underlying action, the appeal of the underlying case did not transfer jurisdiction over the attorneys' fees issue from this court to the court of appeals and that question is still before the court. Therefore, Local 107's appeal of the case does not bar the determination of plaintiffs' motions.

 (b) Timeliness of Plaintiffs' Motions

 The court now turns to Local 107's argument that plaintiffs' motions are untimely. Local 107 directs the court's attention to Rule 59(e). According to Local 107, Rule 59(e) bars a motion to alter or amend a judgment unless the motion is filed within ten days of the entry of the judgment. Noting that judgment here was filed on November 7, 1985, and plaintiffs' motions were filed in January, 1986, well after the ten day period, Local 107 argues that plaintiffs' motions are untimely.

 Rule 59(e) provides as follows:

 

A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

 Fed.R.Civ.P. 59(e).

 A legion of cases have interpreted Rule 59(e) in the attorneys' fees context. Local 107 and plaintiffs have cited many of these cases. Local 107 asserts that, under these cases, a motion for attorneys' fees is considered a motion to alter or amend judgment and subject to Rule 59(e) time limitations. Plaintiffs predictably argue to the contrary that, under these cases, a motion for attorneys' fees is not a motion to alter and amend judgment and is not subject to Rule 59(e) time limitations.

 In the present case, the court believes that under the cases, as discussed below, Rule 59(e) does not preclude plaintiffs' motions for two reasons. First, Rule 59(e) presupposes the entry of a final judgment. If plaintiffs are correct that they are entitled to receive attorneys' fees as an element of damages against Local 107, the November 7, 1985 judgment is not a final judgment eligible for amendment under Rule 59(e). This is because the damages portion was bifurcated, and the jury decided only the liability portion of the case. The judgment Order, which awarded judgment in favor of plaintiffs and against Local 107 in obedience to the jury's answers to the special interrogatories, does not purport to address the damages portion of the case. Therefore, if attorneys' fees are an element of damages, and possibly the only element, that portion of the case is left undecided.

 Second, if plaintiffs are correct that they are entitled to attorneys' fees under the common benefit theory or the bad faith theory, attorneys' fees are collateral to the merits. In this case, for the reasons discussed below, Rule 59(e)'s time limitations do not apply.

 In order to understand the application of Rule 59(e) time restrictions to motions for attorneys' fees, the court believes that some background explanation of the principles permitting the award of attorneys' fees is necessary. The American Rule is that each party must pay their own attorneys' fees and expenses. To this well-settled general rule, many exceptions have been created by Congress and the courts. For example, federal statutes frequently permit prevailing parties to recover attorneys' fees. See, e.g., 18 U.S.C. § 1964(c); 42 U.S.C. § 1988; Fed.R.Civ.P. 11. Under some statutes, Congress intended that attorneys' fees be awarded as damages, e.g., Todd Shipyards, supra, and, under other statutes, Congress intended that attorneys' fees be awarded as an award, collateral to the merits of the case. E.g., White v. New Hampshire Dept. of Employment Security, supra. Additionally, under some circumstances, attorneys' fees may be awarded, even though there is no statutory basis for awarding them. The award is based on the court's inherent authority. For example, attorneys' fees may be awarded where a party's claim or defense is frivolous, unreasonable, or groundless, or where the party continues to litigate after the claim or defense clearly became frivolous, unreasonable, or groundless. Hughes v. Rowe, 449 U.S. 5, 15, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980), quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978) (the "bad faith" exception or theory). The court may also award attorneys' fees to plaintiff, by prevailing in its lawsuit, by conferring "a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them." Mills v. Electric Auto-Lite, 396 U.S. 375, 393-94, 24 L. Ed. 2d 593, 90 S. Ct. 616 (1970), quoting Hall v. Cole, 412 U.S. 1, 5, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973) (the "common benefit" exception or theory).

  With this background, *fn2" the court turns to whether the Rule 59(e) time limitations apply to motions for attorneys' fees. The seminal case on this issue is White v. New Hampshire Dept. of Employment Security, supra. In White, plaintiff filed a petition for attorneys' fees four and a half months after the judgment was entered. Plaintiff claimed to be entitled to attorneys' fees on the basis of the common benefit theory. The Supreme Court of the United States held that Rule 59(e) did not bar plaintiff's motion because, the Court reasoned, Rule 59(e) was not intended to effect matters collateral to the merits of the case. A petition for attorneys' fees filed under the common benefit theory, the Court said, was a collateral matter and not subject to Rule 59(e) time limitations. The Court explained that the application of Rule 59(e) to attorneys' fees petitions would promote unnecessary and undesired litigation and would deprive counsel of time to negotiate a fee settlement. See also, Inmates of Allegheny County Jail v. Pierce, 716 F.2d 177 (3d Cir. 1983). The third circuit has also held that White prevents application of the Rule 59(e) period to attorneys' fees sought under the bad faith theory. Kane Gas Light & Heating Co. v. International Brotherhood of Firemen & Oilers, Local 112, 687 F.2d 673, 677 n.5 (3d Cir. 1982). Accordingly, in the instant case, the court finds that Rule 59(e) does not bar plaintiffs' claim for attorneys' fees under the common benefit theory or the bad faith theory.

 2. Right to Recover Attorneys' Fees

 Having determined that the union's appeal and that Rule 59(e) does not bar this court from deciding plaintiffs' motion, the court proceeds to whether plaintiffs are entitled to recover attorneys' fees under any exception to the American Rule. Each of plaintiffs' theories will be considered.

 (a) The Common Benefit Theory

 Plaintiffs argue that they are entitled to recover attorneys' fees from the union which were incurred in their lawsuit against the union. Plaintiffs rely on Hall v. Cole, 412 U.S. 1, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973) and Harrison v. United Transportation Union, 530 F.2d 558 (4th Cir. 1975), cert. denied, 425 U.S. 958, 48 L. Ed. 2d 203, 96 S. Ct. 1739 (1976).

 In Hall, the Supreme Court held that plaintiff may recover attorneys' fees from a union or corporate treasury where the outcome of plaintiff's suit confers a substantial benefit on an ascertainable class and the court's jurisdiction makes the award operate to spread costs proportionately among them. The United States Court of Appeals for the Fourth Circuit in Harrison, relying on Hall, held that plaintiff was entitled to an award of attorneys' fees under the common benefit theory. Plaintiff, in Harrison, proved that his union breached its duty of fair representation because the union had agreed with the employer not to prosecute plaintiff's grievance in return for the employer's agreement to reinstate another employee. The Harrison court, awarding plaintiff attorneys' fees in his case against the union, reasoned that plaintiff had vindicated the rights of all union members to have the union fairly represent each individual member's grievance against an employer. In a case with similar facts to Harrison, the third circuit awarded plaintiff attorneys' fees from the union because plaintiff "rendered a substantial service to the union and the persons it represents by protecting a member's right to be hired directly by an employer or through a specific request of the union . . . . [His lawsuit] serve[d] to dispel the chill cast upon members who might otherwise not take advantage of these special hiring alternatives." Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382 (3d Cir. 1977).

 The court believes that, if there was ever a case in which plaintiff should be awarded attorneys' fees under the common benefit theory, this is the case. The plaintiffs' grievance was signed by 109 union members. Although the 109 members did not know whether or not they had a legal remedy, each of them believed and had the right to expect that their union would fairly investigate and consider their grievance. Each of them had the right to have their union act fairly in their behalf. The jury, after a full trial, found, however, that Local 107 did not act fairly. In fact, the jury found that the union acted in an arbitrary and perfunctory manner. In this circumstance, the jury's verdict in this case, as in few others, vindicated the right of the individual members of Local 107 to be fairly represented by their union. The members should be able to expect, as a result of the verdict, that Local 107 officials will treat grievances with greater care and respect than they treated the grievance here. The court believes that the right of all Local 107 members to have their grievances fairly investigated and considered has been vindicated by this lawsuit. Plaintiffs' success against the union for its arbitrary and perfunctory investigation and consideration of plaintiffs' grievance has benefited, and will continue to benefit, each union member. For these reasons, the court believes that plaintiffs are plainly entitled to receive attorneys' fees for their lawsuit against the union, based on the common benefit theory.

 Plaintiffs, however, did not prevail against the employers. Thus, their lawsuit against the employers conferred no common benefit on the members of the union. Plaintiffs are not entitled to recover attorneys' fees from the union incurred in their lawsuit against the employers on the common benefit theory. *fn3"

 (b) The Bad Faith Theory

 Plaintiffs argue that they are entitled to receive attorneys' fees under the bad faith theory from the union for their lawsuit against the union. The court believes, however, that, having already determined that plaintiffs are entitled to receive attorneys' fees under the common benefit theory from the union for their lawsuit against the union, the court need not consider plaintiffs' bad faith argument. See Hall v. Cole, 412 U.S. at 15.

 (c) Attorneys' Fees as Damages

 Finally, the court turns to plaintiffs' claim that they are entitled to recover as an element of damages all of their attorneys' fees. This claim has two parts to it. First, plaintiffs argue that they are entitled to an award of attorneys' fees for their lawsuit against Local 107. Second, plaintiffs argue that they are entitled to recover attorneys' fees for the portion of their lawsuit against the employers.

 The United States Court of Appeals for the Sixth Circuit has held that a plaintiff, who had prevailed against his union for breach of fair representation and against his employer for wrongful discharge, was entitled to recover from his union all of his attorneys' fees as an element of damages. Scott v. Local Union 377, 548 F.2d 1244 (6th Cir. 1977). The Scott court stated, in pertinent part:

 

A different situation is presented, however, in his action against the Union, for in that action the principal element of Scott's damages is the amount which it cost him in attorney fees and other expenses to do that which the union was obliged but failed to do on his behalf. He was, therefore, entitled to include in his damages against the Union the amount which he reasonably expended in attorney fees and other costs in prosecuting his claim against the company, costs which he would not have incurred but for the Union's breach of its duty to represent him fairly and in good faith. Czosek v. O'Mara, 397 U.S. 25, 29, 90 S. Ct. 770, 25 L. Ed. 2d 21 (1970); See also, Harrison v. United Transportation Union, 530 F.2d 558, 562 (4th Cir. 1975), cert. denied, 425 U.S. 958, 96 S. Ct. 1739, 48 L. Ed. 2d 203 (1976); De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 293 n.17 (1st Cir. 1970).

 548 F.2d 1246. Several other circuit courts have also determined that attorneys' fees may be awarded as an element of damage in an action against a union for breach of fair representation. See Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir. 1983); Seymour v. Olin Corp., 666 F.2d 202 (5th Cir. 1982); Self v. Drivers, Chauffeurs, Warehousemen, Etc., 620 F.2d 439 (4th Cir. 1980); De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281 (1st Cir. 1970). See also, Chuy v. National Football League Players Association, 495 F. Supp. 137 (E.D. Pa. 1980) (Huyett, J.).

 If, in this case, Local 107 had fairly represented its members, the union may have incurred the attorneys' fees in pursuing plaintiffs' grievance against the employers. Here, however, the union did not fairly represent its members in sufficient depth to allow it to decide the question of the need for a lawsuit. It passed over to the plaintiffs the need to make that decision by failing to fully consider the grievance itself. By so doing, the union, in addition to avoiding the cost of the prosecution of plaintiffs' grievance, caused plaintiffs to make the litigation decisions for themselves, which they did and for sound reasons. The fact that the plaintiffs did not prevail and the fact that the union may have investigated the grievance and then fairly decided not to prosecute it is of no consequence now. By acting arbitrarily and perfunctorily, the union abdicated to the plaintiffs it's right to direct the prosecution of plaintiffs' grievance. As a result of Local 107's breach, the attorneys' fees incurred in pressing plaintiffs' grievance was shifted onto the plaintiffs' backs. These attorneys' fees consequently were the harm to plaintiffs caused by the union's breach. Dutrisac, 749 F.2d at 1275. Local 107 argues that attorneys' fees should not be awarded as damages because plaintiffs did not prevail against the employers. As stated above, Local 107's argument is without merit. The statutory scheme in labor law does not contemplate that a union, fearing some risk that employers may prevail at trial, may refuse to fairly pursue a grievance, thus shifting the cost of attorneys' fees from its own coffers to its individual members' pockets if the employers eventually do prevail at trial. Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir. 1981). Consequently, the attorneys' fees incurred by plaintiffs in their suit against the employers are plaintiffs' damages caused by the union's breach of its duty of fair representation owed to plaintiffs, regardless of the outcome of the suit against the employers. Accordingly, plaintiffs' motion for summary judgment will be granted to the extent that they seek attorneys' fees as damages resulting from their suit against the employers and denied to the extent they seek attorneys' fees as damages resulting from their suit against the union for its breach of fair representation.

 Plaintiffs' claim for attorneys' fees incurred in their case against the union must be distinguished from the fees incurred in the case against the employers. Attorneys' fees incurred in the suit against the union were the result of the harm caused by the union's breach of its duty of fair representation owed directly to the plaintiffs. These fees, then, may only be awarded against the union as prescribed by the American Rule and its exceptions, such as the common benefit exception. Attorneys' fees incurred in the suit against the employers, on the other hand, were incurred by plaintiffs because they were fees that should have been borne by the union, but were passed on to the plaintiffs as a direct consequence of the union's failure to fulfill a duty owed to plaintiffs.

 (d) Summary

 For the above reasons, plaintiffs are entitled to receive attorneys' fees incurred against the union under the common benefit theory and attorneys' fees incurred against the employers as an element of damages.

 3. Calculation of Attorneys' Fees

 Having determined that plaintiffs are entitled to recover attorneys' fees, the court must calculate those fees. Guidance for the calculation is found in third circuit law, beginning with Lindy I. The court is directed first to calculate a lodestar figure. The lodestar, which is the reasonable value of the attorneys' services, is reached by multiplying the reasonable number of hours spent by the attorneys working to benefit their clients' case times the reasonable hourly rate of each attorney. Id. After the lodestar is calculated, it is multiplied by a multiplier, which takes into account the likelihood of success, any unusual quality of work, and the time value of money since attorneys began working on the case. Id.

 In the present case, plaintiffs were represented by Judith Chomsky, Esquire,("Chomsky") and Ira Katz, Esquire ("Katz"). The attorneys were assisted by a paralegal (the "paralegal"). Chomsky was the lead counsel and trial counsel. In her affidavit, Chomsky testified that she spent hours on the case as follows: The Case The Case Against Against The Union n4 The Employers Preparation of Pleadings 12.0 0.5 Preliminary Injunction 6.5 2.0 Discovery 22.75 62.75 Motion to Dismiss 0.25 3.0 Motion for Summary Judgment 22.0 Other Pretrial Motions and Preparation 35.56 28.44 Trial Time 36.12 5.88 Post-Trial Motions and Letters 45.5

19860610

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