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