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JORDAN v. CCH

October 7, 2002

ROBERT G. JORDAN, PLAINTIFF,
V.
CCH, INC., DEFENDANT.



The opinion of the court was delivered by: Schiller, Judge.

  MEMORANDUM AND ORDER

I. INTRODUCTION

After a jury trial before this Court in the above-captioned matter, judgment was entered in favor of Plaintiff on July 22, 2002 as to Plaintiff's claims under the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"). In accordance with special interrogatories to the jury, this Court awarded Plaintiff Robert Jordan $260,000.00 in lost earnings and benefits accruing up to the time of trial and $90,000.00 in compensatory damages. Now before the Court is Plaintiff's petition for counsel fees and costs,*fn1 Plaintiff's motion to mold the verdict to include prejudgment interest and damages resulting from tax consequences, and Defendant's motion to amend judgment and for remittitur.

For the reasons that follow, I grant in part and deny in part Plaintiff's attorney fee petition; grant in part and deny in part Plaintiff's motion to mold the verdict to include prejudgment interest and damages from tax consequences; and grant in part and deny in part Defendant's motion to amend judgment and for remittitur.

II. PLAINTIFF'S PETITION FOR COUNSEL FEES AND COSTS

Petitioner seeks an award of $195,299.25 in fees and $19,147.80 in costs, representing the work of Ronald Surkin, Brian Kirby, other assisting attorneys, and a paralegal. In addition, Plaintiff seeks a supplemental award of $7,571.00 in fees and $2,292.22 in costs incurred since the initial filing of his petition. Under the ADEA and the PHRA, a "prevailing party" is entitled to an award of reasonable attorney's fees. See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir. 1987); Becker v. ARCO Chem. Co., 15 F. Supp.2d 621, 626 (1998); see also Rego v. Arc Water Treatment, Civ. A. No. 94-3734, 1998 WL 334489, 1998 U.S. Dist. LEXIS 9635, at *6 (E.D.Pa. June 29, 1998), aff'd, 181 F.3d 396 (3d Cir. Pa. 1999); 43 P.S. § 962(c)(4)(c.2) (2002). The party seeking attorney's fees has the burden to prove that the request is reasonable. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). A reasonable attorney's fee can be calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001). This figure is called the lodestar. Although the lodestar is presumed to yield a reasonable fee, the district court has considerable discretion to adjust the lodestar upward or downward once the opposing party objects to the fee request.*fn2 See Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Props., 884 F.2d 713, 721 (3d Cir. 1989).

A. Reasonableness of Hourly Rates

A court determines a reasonable hourly rate by assessing the prevailing party's attorneys' experience and skill compared to the prevailing market rates in the relevant community for lawyers of reasonably comparable skill, experience, and reputation. See Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001); see also Student Pub. Interest Research Group of N. J.,Inc. v. AT&T Bell Labs, 842 F.2d 1436, 1450 (3d Cir. 1988). Additionally, a court can take into consideration the complexity of the case, determined by "examining the difficulty counsel faced in establishing proof and in meeting the litigation strategy of defendants." Becker v. ARCO Chem. Co., 15 F. Supp.2d 621, 632 (E.D.Pa. 1998). The prevailing party bears the burden of showing that the requested hourly rates are reasonable and can satisfy this burden by the submission of affidavits of attorneys with personal knowledge of the hourly rates customarily charged in the relevant market. See Becker, 15 F. Supp.2d at 628 (citing Washington v. Phila. Ct. of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996). The opposing party must show a sufficient basis to contest the reasonableness of the fees. See Orson, Inc. v. Miramax Film Corp., 14 F. Supp.2d 721, 724 (E.D.Pa. 1998). While an attorney's usual billing rate is a starting point for a court's determination, it is not dispositive. See Maldonado, 256 F.3d 181, 184-85 (citing Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995)). The hourly rates requested for principal counsel, Ronald Surkin and Brian Kirby will be analyzed separately.*fn3

1. Ronald Surkin, Esq.

Plaintiff has requested a $325.00 hourly rate for lead trial counsel Ronald Surkin. Defendant contests the reasonableness of this hourly rate for Mr. Surkin on two grounds. First, Defendant asserts the delegable nature of several of Mr. Surkin's tasks warrants a lower hourly rate. Second, Defendant asserts that Mr. Surkin's hourly rate is erroneously enhanced on the ground of contingency.

a. Delegable Nature of Mr. Surkin's Work

Defendant asserts that Mr. Surkin's rate should be reduced to account for the clerical and associate level work performed by lead counsel.*fn4 Charging maximum rates for tasks that can be performed effectively by supporting staff or associates is not permissible. See Loughner, 260 F.3d at 180; Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983) ("[R]outine tasks, if performed by senior partners in large firms, should not be billed at their usual rates."). A court must to exclude hours that reflect "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates. Ursic, 719 F.2d at 677 (emphasis added). This proposition, however, presupposes that the attorneys charging maximum rates readily have junior associates and supporting paralegals at his or her disposal. See Poston v. Fox, 577 F. Supp. 915, 919-20 (D.N.J. 1984) (finding that it is not always possible to delegate in small office); see also Roldan v. Phila. Hous. Auth., Civ. A. No. 95-6649, 1999 WL 1167658, 1999 U.S. Dist. LEXIS 19093, at *14-15 (holding that reduction in rates is unwarranted in office that is understaffed and no less experienced attorney was available to perform tasks).

As Mr. Surkin detailed in his supplemental declaration, his firm is a small firm that, during the majority of the case, only had one associate. (Surkin Supplemental Dec. at ¶ 3.) Additionally, Mr. Surkin attested that at the time of this case, his firm had five or six partners that, in essence, had their own practices. (Id.) For each of the tasks that Defendant contests, Plaintiff explains, in detail, the reasons that these tasks were not easily delegable and constituted legal services that required his attention. (Plaintiff's Reply Memorandum ("Pl. Reply") at 4-7), see also Roldan,1999 U.S. LEXIS 19063, at *14 (holding essentially legal tasks do not require delegation).

Alternatively, when looking at the entries referred to by Defendant, it is ironic that most of what Defendant objects to are tasks that it created. This case was highly contentious, but more so because of the demeanor of counsel than because of the merits of the case. Many of the costs and fees incurred were the result of Defense counsel's unrelenting use of discovery and motion practice that required response by Plaintiff's counsel. Defendant's counsel took full advantage of the Federal Rules of Civil Procedure and now seeks to portray Plaintiff's petition for fees as excessive and unreasonable.*fn5 In light of explanations given in Mr. Surkin's supplemental declaration, the nature of Mr. Surkin's small firm, and the contentious nature of the case, I find that Mr. Surkin could not easily delegate the tasks specified by Defendant and thus, a reduction of Mr. Surkin's rates as requested by the Defendant is not warranted on this ground.

b. Contingency Enhancement & Community Market Standard

Defendant opposes the enhancement of Mr. Surkin's rate based on the contingency nature of the case. In addition, Defendant argues that Mr. Surkin's usual billing rate should be the starting point for the Court's determination of a reasonable rate under the prevailing market. Mr. Surkin's stated hourly rate is "typically $250 to $275 per hour." (Surkin Aff. ¶ 8.) Mr. Surkin, however, requests an hourly rate of $325.00. To support this rate enhancement as reasonable, Mr. Surkin refers to the Community Legal Services, Inc.'s Schedule of Hourly Rates ("CLS fee schedule"), three affidavits from attorneys in the community market, and the contingency nature of the case. (Pl. Fee Pet. ¶ 10; Surkin Aff. ¶¶ 8-11.)

Although "contingency multipliers are not permitted for fees awarded pursuant to fee shifting statutes," Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655, 677 (3d Cir. 2002) (citing City of Burlington v. Dague, 505 U.S. 557 (1992)), I find Mr. Surkin's rate enhancement reasonable for the foregoing reasons. Mr. Surkin has over 30 years of litigation experience, and 18 years of those years litigating all aspects of employment law. Among his other accomplishments, he has frequently served as a lecturer on employment law topics and as an adjunct professor in trial advocacy in Temple Law School's L.L.M. program. (Pl.'s Fee Pet. Ex. 1.) According to the CLS fee schedule, attorneys with over 25 years of litigation experience typically earn between $300.00 and $350.00 per hour. (Pl.'s Fee Pet. Ex. B.) See Maldonado, 256 F.3d at 187-88 (approving CLS fee schedule). The United States Court of Appeal for the Third Circuit has noted that the CLS fee schedule is "a fair reflection of the prevailing market rates in Philadelphia." See Maldonado, 256 F.3d at 187-88 (approving of CLS fee schedule). Additionally, Plaintiff submitted three declarations from attorneys with personal knowledge of the current market rates for attorneys in Philadelphia's employment law arena that attested to the reasonableness of Mr. Surkin's requested rate. (Pl. Fee Pet., Ex. 2, 3, and 4.) Defendant, however, submitted no contrary evidence, declarations or affidavits regarding the reasonableness of Mr. Surkin's rate. See Gentner v. Cheney Univ. of Pa., Civ. A. No. 94-7443, 1999 WL 993999, 1999 U.S. Dist. LEXIS 16796, at *14-15 (E.D.Pa. Nov. 1, 1999) (holding that requested rate should not be adjusted downward when "`the plaintiff has met his prima facie burden under the `community market rate' lodestar test, and the opposing party has not produced contradictory evidence'" (citing Ballen v. Martin Chevrolet-Buick, Civ. A. No. 94-484, 1998 WL 1013874, at *2, 1998 U.S. Dist. LEXIS 22537 (D.Del. Sept. 17, 1998) (quoting Washington v. Phila. Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996))).

Finally, over twenty months have passed between the time this suit was filed and the date the jury returned its verdict. Although this case did not raise any novel legal issues, Plaintiff was pitted against an unusually vigorous opponent. See Becker, 15 F. Supp.2d at 632 (holding that complexity of case can be determined by "examining the difficulty counsel faced in establishing the proof and in meeting the litigation strategy of defendants"). During the course of pleading and discovery, Plaintiff had to respond to at least four contested motions by Defendant. In addition, Plaintiff had to respond to ten motions in limine filed by Defendant, many of which raised technical evidentiary issues. In the face of this opponent, Mr. Surkin was required to expend more effort and exhibit more skill than normally required for a case of this type. See Ursic, 719 F.2d at 677 (finding "time and labor required" and "skill requisite to perform legal services properly" are factors to consider). Thus, I find that Mr. Surkin's rate is not enhanced based on the contingency nature of the case; rather, Mr. Surkin's hourly rate of $325.00 is reasonable in light of the CLS fee schedule, the declarations submitted by colleagues in his field, and the time, labor, and skill required to litigate this case. (Pl.'s Fee Pet. Exs. 2, 3.)

2. Brian Kirby, Esq.

Plaintiff has requested a $220.00 hourly rate for counsel Brian Kirby, Esq. First, Defendant requests a reduced rate for Mr. Kirby because he performed junior associate level and clerical tasks.*fn6 Second, Defendant objects to Mr. Kirby's rate because his actual billing rate is not supported by the evidence. Although a usual billing rate is the starting point for determining a reasonable hourly rate, the Third Circuit has held that "it is not dispositive." Maldonado, 256 F.3d at 187. The prevailing party's burden can be satisfied by affidavits from attorneys with personal knowledge of customary rates or, if the prima facie burden is not met, a court has discretion to determine a reasonable hourly rate. See Becker, 15 F. Supp.2d at 628 (citing Windall, 51 F.3d at 1185 and Washington, 89 F.3d at 1036).

Under both the supporting declaration submitted by Plaintiff and the CLS fee schedule, Mr. Kirby's rate is reasonable. Mr. Kirby has 12 years of litigation experience, several of these years were spent doing labor and employment work. (Pl.'s Fee Pet. Ex. F.) According to CLS fee schedule, attorneys with between 11 and 15 years of litigation experience typically earn between $220.00 and $260.00 per hour. (Pl.'s Fee Pet. Ex. B.) Similarly, Plaintiff's submitted a declaration of an attorney in the community market that attested to the rate requested for Mr. Kirby. (Pl.'s Fee Pet. Ex. 2.) Again, no evidence, affidavit or declaration was submitted to the contrary by Defendant. See Gentner, 1999 U.S. Dist. LEXIS 16796, at *14-15. In light of the supporting declaration and the CLS fee schedule, Mr. Kirby's merits $220.00 an hour. (Surkin Aff. Ex. B. and Pl.'s Fee Pet. Ex. 2.)

B. Reasonableness of Time Expended

A prevailing party may request fees for work that is "`useful and the type ordinarily necessary to secure the final result obtained.'" Windall, 51 F.3d at 1189 (quoting Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 560-61 (1986). A court has "the affirmative function" of "review[ing] the time charged to decided whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are `excessive, redundant, or otherwise unnecessary.'" Maldonado, 256 F.3d at 184 (citing Windall, 51 F.3d at 1188). The court, however, cannot generally reduce hours sua sponte, rather objections must be specific for the court to reduce the amount of fees requested. See United States v. Eleven Vehicles, 200 F.3d 203, 211-212 (3d Cir. 2000) (citing Cunningham v. City of McKeesport, 753 F.2d 262, 266 (3d Cir. 1985), vacated on other grounds, 478 U.S. 1015 (1986), and reinstated, 807 F.2d 49 (3d Cir. 1986)). Defendant contests the reasonableness of the time expended by Plaintiff's counsel because it posits that approximately fifty percent of the hours billed are attributable to non-ADEA claims. In addition, Defendant claims that a reduction is warranted because there was duplicative and excessive hours, overstaffing, and hours spent on clerical matters.

1. Non-ADEA Claims

Plaintiff's complaint included claims under the ADEA, PHRA, ERISA and breach of contract. Plaintiff's ERISA and breach of contract claims settled shortly before trial. Defendant contends that a fifty percent reduction of hours expended is warranted for the time prior to the settlement of these claims. Where compensable and non-compensable claims share a "common core of facts or related legal theories, or where counsel's time is dedicated to litigation as a whole," a court is not required to reduce the lodestar value. Northeastern Women's Ctr. v. McMonagle, 889 F.2d 466, 476 (3d Cir. 1989) (citing Hensley, 461 U.S. at 435). Here, all of Plaintiff's claims came from a common set of facts. For instance, Plaintiff alleged that he was not credited with sales he made during his employment. Plaintiff set out to prove that Defendant intentionally failed to credit these sales in order to affect Plaintiff's sales ranking and to justify a pretextual basis for his discriminatory termination based on age. Similarly, the failure to give Plaintiff credit for these sales resulted in a loss of commissions, which was the basis for his breach of contract claim, and a loss of pension credits, which was the basis for his ERISA claim. Plaintiff's counsel did not have to develop any additional facts for the ERISA and breach of contract claims. Thus, considering interrelatedness of facts underlying all Plaintiff's claims, I find that a reduction is not warranted on this ground.

2. Duplication of Hours


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