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O'FARRELL v. TWIN BROS. MEATS

June 15, 1995

WILLIAM O'FARRELL, MICHAEL P. COYLE, MARYELLEN FRANCKE, AND EDWARD KEYSER, AS TRUSTEES OF THE TEAMSTERS LOCAL 500 SEVERANCE TRUST FUND AND TEAMSTERS LOCAL 500 SEVERANCE TRUST FUND V. TWIN BROTHERS MEATS, INC.


The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 June 15, 1995

 Presently before this Court is the Plaintiffs' motion for attorney's fees and costs pursuant to 29 U.S.C. § 1132(g)(2)(D) (1993 & Supp. 1995). Defendant concedes that an award of fees is mandatory, but argues that Plaintiffs' fee statement includes costs that are excessive and unexplained, and that the request is therefore unreasonable. Consequently, the sole issue before this Court is what constitutes a "reasonable" award.

 Plaintiffs originally brought this action under 29 U.S.C. § 1145 (1993 & Supp. 1995), Section 515 of the Employee Retirement Income Security Act of 1974 (ERISA), to force Defendant to make the contributions that Defendant was obligated to make "under the terms of a collectively bargained agreement." 29 U.S.C. § 1145. After numerous attempts to settle, the two parties were eventually unable to avoid litigation. Subsequently, Plaintiffs' motion for summary judgment was granted. Plaintiffs then made this motion to recover attorney's fees and costs.

  28 U.S.C. § 1132(g)(2)(D) does not allow much discretion when deciding this motion, but instead commands that the court award reasonable attorney's fees and costs to successful ERISA plaintiffs. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Building Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview, 46 F.3d 1392, 1400 (6th Cir. 1995); DeVito v. Hempstead China Shop, Inc., 831 F. Supp. 1037, 1042 (E.D.N.Y. 1993); Cerva v. E.B.R. Enter., Inc., 740 F. Supp. 1099, 1102-03 (E.D. Pa. 1990). The relevant section states that once a "judgment in favor of the plan is awarded, the court shall award the plan . . . reasonable attorney's fees and costs of the action, to be paid by the defendant." 28 U.S.C. § 1132(g)(2)(D) (emphasis added). Therefore, this Court's sole duty is to determine what amount is reasonable.

 A reasonable award is calculated using the "lodestar" method, which requires several steps. Hensley, 461 U.S. at 433. First, the court must determine what constitutes a reasonable billing rate. Id. Second, the court must decide how many billable hours are reasonable. Id. Third, the court must multiply the reasonable billable hours expended by the reasonable hourly rate to attain the lodestar. David v. AM Int'l, 131 F.R.D. 86, 89 (E.D. Pa. 1990). Fourth, the court can adjust this figure after weighing other factors. Hensley, 461 U.S. at 434-35.

 In order to calculate the reasonable rate and a reasonable number of billable hours, the court should review evidence submitted by both parties. Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d Cir. 1992). "The party seeking the attorney's fees," however, "has the burden to prove that its request is reasonable." Strauss v. Springer, 817 F. Supp. 1237, 1243 (E.D. Pa. 1993) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). To be successful, the party "must 'submit evidence supporting the hours worked and rates claimed.'" Strauss, 817 F. Supp. at 1243 (quoting Hensley, 461 U.S. at 433). The court should not be left to "speculate" as to how the hours were used, but instead should be given an explicit description of what was performed. Keenan, 983 F.2d at 473. Where the court finds that these hours were not "reasonably expended," through overstaffing or poor "billing judgment," the proper adjustments must be made. Hensley, 461 U.S. at 434.

 The court determines the reasonable hourly rate by comparing the amount billed to the community's market rate "for similar work." Hensley, 461 U.S. at 433; David, 131 F.R.D. at 89. In order to determine the market rate in the community, the court must "assess the experience and skill of the attorneys and compare their rates to those of comparable lawyers in the private business sphere." Student Pub. Interest Research Group v. AT&T Bell Lab., 842 F.2d 1436, 1447 (3d Cir. 1988). This "requires only a number of representative affidavits [by the plaintiff] from attorneys in the community who possess comparable qualifications and skill." Id. at 1450.

 After a reasonable number of hours and the reasonable rate for the services provided are configured, other factors must be weighed. Hensley, 461 U.S. at 434. The complexity of the legal theories argued, the extent of litigation, and the use of good faith must all be considered. Id. at 434-35. Furthermore, "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees." Id. at 440. After these elements are considered, the award can be adjusted. DeVito, 831 F. Supp. at 1043; Rode, 892 F.2d at 1183.

 In addition to fees, the plaintiff "should generally be compensated for reasonable expenses such as . . . telephone charges, [and] photocopies", Smith v. Great Am. Restaurants, Inc, 969 F.2d 430, 440 (7th Cir. 1992), as well as for reasonable costs stemming from computer research. Harman v. Lyphomed, Inc., 945 F.2d 969, 976 (7th Cir. 1991). Finally, a party may also recover for expenses associated with preparation of the motion for attorney's fees and costs. Cerva, 740 F. Supp. at 1108.

 Turning to the present case, the first step in calculating the lodestar is the determination of the reasonable hourly rate. Plaintiffs' counsel charged between $ 185 per hour and $ 90 per hour for work performed by their attorneys. The upper limit reflects the rate charged by a partner with eight years of experience handling ERISA matters, while the lower figure represents the hours billed by a second year associate with less experience.

 The majority of the work was performed by two associates, one with six years and one with five years of experience with the firm. Their normal billing rates began at $ 125 per hour, but increased to $ 135 per hour on November 1, 1994. Further, Plaintiffs' counsel billed for work performed by paralegals and for expenses incurred for research, secretarial overtime, postage, and telephone and facsimile use. Finally, Plaintiffs include costs associated with the auditor's fees. To justify these rates as reasonable in ...


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