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Tran v. Metropolitan Life Insurance Co.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


September 12, 2006

HUU NAM TRAN, PLAINTIFF,
v.
METROPOLITAN LIFE INSURANCE COMPANY AND KOWK LAM, DEFENDANTS.

The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT SYNOPSIS

Pending is a Motion to Amend Judgment Pursuant to Rule 59(e), that I converted to a Motion for Attorneys' Fees and Costs pursuant to Rule 54(d)(2) at the hearing held on this Motion on July 12, 2006. (Docket No. 103). After careful consideration of the submissions of the parties, and based on my Opinion set forth below, said Motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff, Huu Nam Tran filed suit against Defendants, Metropolitan Life Insurance Company ("MetLife") and Kwok Lam, alleging negligent misrepresentation, fraudulent misrepresentation, and violations under the Pennsylvania Unfair Trade Practice and Consumer Protection Law ("UTPCPL"). The case proceeded to trial and the jury returned a verdict partially in favor of Plaintiff. (Docket No. 99). Specifically, the jury found in favor of Defendants with regard to Plaintiff's negligent misrepresentation claim and fraudulent misrepresentation claim. (Docket No. 99). With respect to Plaintiff's UTPCPL claim, the jury determined that Plaintiff proved by clear and convincing evidence that Defendant MetLife or Defendant Kwok Lam represented that the life insurance policy sold to Plaintiff had approval, characteristics, benefits, or quantities that it did not have and that Defendants made false or misleading statements of fact concerning the reason for, the existence of, or amounts of price reductions in the sale of the policy and that Plaintiff justifiably relied on them in making his decision to purchase the policy. (Docket No. 99). In addition, the jury found that Plaintiff suffered damages as a result therefrom. The jury awarded Plaintiff damages in the amount of $25,000.00. (Docket No. 99).

Plaintiff has filed a Motion seeking attorneys' fees (in the amount of $87,740.50) and costs (in the amount of $13,273.56) associated with the prosecution of Plaintiff's UTPCPL claim. (Docket No. 103, ¶¶6-7). Plaintiff also seeks post judgment interest. (Docket No. 103, ¶16). Additionally, Plaintiff requests that this Court treble damages pursuant to the UTPCPL. After a hearing on July 12, 2006, and additional briefing by the parties, the issues are now ripe for review.

II. LEGAL ANALYSIS

A. Attorneys' Fees and Costs

1. Attorneys' Fees

The UTPCPL provides, in pertinent part, that "[t]he court may award to the plaintiff...costs and reasonable attorney fees." 73 Pa. S.T. §201-9.2(a). "In a case involving a lawsuit which include[s] claims under the UTPCPL ... the following factors should be considered when assessing the reasonableness of counsel fees:

(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case; (2) The customary charges of the members of the bar for similar services; (3) The amount involved in the controversy and the benefits resulting to the clients from the services; and (4) The contingency or certainty of the compensation."

Neal v. Bavarian Motors, Inc. , 882 A.2d 1022, 1031 (Pa.Super. 2005), quoting Sewak v. Lockhart, 699 A.2d 755, 762 (Pa.Super.1997), citing Croft v. P. & W. Foreign Car Service , 383 Pa.Super. 435, 557 A.2d 18, 20 (1989). Another factor to consider, although it is not a controlling factor, is a "sense of proportionality" between the award of damages under the UTPCPL and the attorneys' fees award. Neal v. Bavarian Motors, Inc. , 882 A.2d 1022, 1031 (Pa.Super. 2005). Moreover, it is incumbent upon this Court, to "eliminate from the award of attorney fees the efforts of counsel to recover on non-UTPCPL theories." Id. at 1031-32.

Courts use the lodestar formula which requires multiplying the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 24, 433 (1983); Loughran v. Univ. of Pittsburgh, 260 F.3d 173, 176 (3d Cir. 2001). "A District Court has substantial discretion in determining what constitutes a reasonable rate and reasonable hours, but once the lodestar is determined, it is presumed to be the reasonable fee." Lanni v. New Jersey, 259 F.3d 146, 148 (3d Cir. 2001). Thereafter, a district court may adjust the fee for a variety of reasons, the most important factor being the "results obtained" by the plaintiff. Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). With this in mind, I now consider the reasonableness of hours worked and rates charged by Plaintiff's counsel.*fn1

a. Reasonable Hourly Rates

First, I must determine what constitutes a "reasonable market rate for the essential character and complexity of the legal services rendered...." Lanni, 259 F.3d at 149, citing, Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). I do this by "assessing the experience and skill of the prevailing party's attorneys and compare the rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The starting point is the hourly rate usually charged by the attorney, but this is not dispositive. Public Interest, 51 F.3d at 1185. Plaintiff bears the burden of establishing the reasonable current*fn2 market rate. Id.; Evans v. Port Auth. of New York and New Jersey, 273 F.3d 346, 361 (3d Cir. 2001).

In this case, the only rate evidence presented by Plaintiff's counsel was at the hearing. Plaintiff presented this Court with the decision and award by the Honorable R. Stanton Wettick, Jr. out of the Court of Common Pleas of Allegheny County, Pennsylvania, wherein Judge Wettick awarded (without any consideration or discussion of the current market rate) Behrend & Ernsberger and attorney James De Pasquale the rate of $300.00. See, Eck v. MetLife, et al. No. GD95-017150 (Ct. Cmmon Pleas, Sept. 13, 2005). Consequently, this does not provide me with anything more than the hourly rate charged by Plaintiff's counsel. Thus, I find that Plaintiff's counsel have failed to meet their burden of establishing the reasonable current market rate.

Where the prima facie burden has not been satisfied, the court has considerable discretion in determining a reasonable hourly rate. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996). A court's role in determining a reasonable hourly rate is not passive, but, rather, it is positive and affirmative function of the court. I have had the opportunity to consider the current market rates for civil rights cases and other complex litigation cases. In those cases, the maximum attorney rate awarded has been $250.00 an hour. See, Swartzwelder v. City of Pgh., et al., C.A. No. 00-1793; Foster v. Pgh. Bd. of Public Ed., C.A. No. 98-1905 ; Sunseri v. The Univ. of Pgh., C.A. No. 99-1728; Catello v. Oriental Weavers, C.A. No. 01-1060.

In this case, there were no novel or difficult questions involved. It was not a complex case. In fact, for over 10 years, Plaintiff's counsel has represented more than two hundred plaintiffs in similar actions against MetLife all alleging improper sales practices and claims under the UTPCPL. (Docket No. 104, p. 7). As Plaintiff's counsel admits, the cases involve the same, if not identical, factual and legal arguments. (Docket No. 104, p. 7). Thus, the skill, time, and labor required to litigate this case should be exponentially smaller than a case brought by a plaintiff against a defendant for the first time. Since I have found that this is not a complex case, I find that a reasonable rate for a partner given the degree of skill required for this simple case is $250.00.*fn3 Therefore, the total amount of fees sought for the partners is as follows: Barbara J. Ernsberger from $570.00 to $475.00; Daniel W. Ernsberger from $270.00 to $225.00; Kenneth R. Behrend from $36,120.00 to $30,100.00; Kenneth R. Behrend (Trial Time) from $4,005.00 to $3337.50; and Kenneth R. Behrend (Travel Time) from $1,134.00 to 1,054.40.

With regard to the rates of non-partners for which Plaintiff is seeking recovery, Plaintiff has failed to submit any evidence regarding the reasonableness of the same. Thus, I must review the same given my discretion. To that end, I find the other rates submitted by Plaintiff's counsel to be reasonable and within the range for the equivalent skill and experience. See, e.g. See, Swartzwelder v. City of Pgh., et al., C.A. No. 00-1793. Specifically, associates are billing between $125.00 and $150.00 an hour. (Docket No. 103-3, p. 6). Paralegals are billing between $60.00 and $75.00 an hour. Id. Law clerks are billing at $75.00 an hour and legal assistants are billing at $50.00 an hour. Id.

Based on the new rates, the total fee requested is $80,837.40.

b. Number of Hours Reasonably Expended

The next step is to determine the hours reasonably expended. Hensley, 461 U.S. at 433. As to those issues raised by the party opposing the fee request, a "court must be careful to exclude from counsel's fee request 'hours that are excessive, redundant or otherwise unnecessary....'" Holmes v. Millcreek Township School Dist., 205 F.3d 583, 595 (3d Cir. 2000), quoting, Hensley, 461 U.S. at 434. To be appropriately awarded, attorneys' fees must be "'useful and of the type ordinarily necessary' to secure the final result obtained from the litigation." Planned Parenthood of Central New Jersey v. The Attorney General of the State of New Jersey, 297 F.3d 253 (3d Cir. 2002), quoting, Pennsylvania v. Del. Valley Citizens' Council, 478 U.S. 546, 561 (1986); Loughner, 260 F.3d at 178. Hours that generally would not be billed to one's own client are not properly billed to an adversary. Public Interest, 51 F.3d at 1188.

Upon this Court's direction, Defendants have made specific line item objections to the hours claimed by Plaintiff's counsel in table format. I will deal with each separately in table format as well.

Date Tim Rate Ruling Deducted e Billed am oun t, if ($) any 3/11/00 1.0 250 The last name of the person in attendance at the no client conference is irrelevant for billing purposes reduction 5/31/06 .8 50 The prep aration o f a no tice of service is a stand ard $100.00 6/01/00 .2 form and should not require a separate billing entry.

6/01/00 .2 50 There w ere 8 coun ts in the com plaint. This $37.50 request for production of docum ents was prepared prior to and presumably in preparation for the com plaint. I agree w ith Plaintiff that th ere are common elements between his fraudulent misrepresentation claim and his UTPCPL claim, but no t fo r th e o ther 6 claim s. Th us, a redu ctio n in the am ou nt of 3/4 is warranted.

6/08/00 .7 75 There were 8 counts in the complaint. The $39.37 preparation of do cum ents for production was prepared prior to and presumably based on the com plaint. I agree w ith Plaintiff that th ere are common elements between his fraudulent misrepresentation claim and his UTPCPL claim, but no t fo r th e o ther 6 claim s. Th us, a redu ctio n in the am ou nt of 3/4 is warranted.

6/23/00 .7 75 There were 8 counts in the complaint. The $39.37 preparation of answ ers to interrogatories was prepared prior to and presumably based on the com plaint. I agree w ith Plaintiff that th ere are common elements between his fraudulent misrepresentation claim and his UTPCPL claim, but no t fo r th e o ther 6 claim s. Th us, a redu ctio n in the am ou nt of 3/4 is warranted.

6/24/00 .1 250 I agree th at the re view of an swe rs to $100 interrogatories could have been performe d by an associate at the senior associate rate of $150 an hour.

9/11/00 .9 50 I agree w ith Defend ants th at there is no n eed to $45 have an analyst review the policy information, since Plaintiff's counsel are m ore th an qualified to do the sam e.

9/11/00 .5 50 I agree w ith Defend ants th at there is no n eed to $25 have an analyst prepare a summ ary of policy inform ation, since Plaintiff's coun sel are m ore than qu alifie d to review the sam e for them selves.

12/01/00 5.4 50 I agree w ith Defend ants th at there is no n eed to $270 12/04/00 1.6 have an analyst prepare a factual review in aid of $80 drafting com plaint, sin ce the com plaint is b asically a form co mp laint and coun sel are m ore than qualified to prepare the same.

12/04/00 2.1 250 The com plaint in the case was a form com plaint, $825 12/05/00 .5 with mino r ch anges added specific to this 12/06/00 1.0 Plaintiff's policy. In add ition, there we re 8 co unts 1/06/01 .8 in this form co mp laint. I agree with Plaintiff that there are com m on elem en ts between h is fraudulent misrepresentation claim and his UTPCPL claim, but not for th e o ther 6 claim s. Th us, a redu ctio n in the am ou nt of 3/4 is warranted.

1/08/01 .4 60 There were only two exhibits attached to the $24 complaint - the policy and the illustration. An attorney would have had to review the same and had the m available in d rafting the com plaint.

Thus, th e only tim e prep aring th e exhibits w ou ld have been copying them , for w hich P laintiff is entitled to co sts, not the time assoc iated w ith m aking copies.

01/08/01 .8 50 There were only two exhibits attached to the $40 complaint - the policy and the illustration. An attorney would have had to review the same and had the m available in d rafting the com plaint.

Thus, th e only tim e prep aring th e exhibits w ou ld have been copying them , for w hich P laintiff is entitled to co sts, not the time assoc iated w ith m aking copies.

2/13/01 .1 250 Anything sen t from the court m ust be read, so no even though I agree that the entry is not specific, reduction billing .1 is not excessive and no reduction will be taken for this.

3/15/01 .5 250 I agree with Defendants that an entry that states $125 "Review of do cum en ts" lacks sufficien t specificity.

Although Plaintiff's counsel states that this is for the review of documents in response to the receipt of the Motion to Dismiss, Plaintiff does not state w hat docu m ents, different fro m those already review ed in drafting the com plaint, w ou ld have been necessary. Consequently, entries like this that are so vague as to defy any meaningful assessm ent of whether the ho urs were reasonably expended will not be permitted.

3/15/01 .8 250 Plaintiff's response appears to agree that an $158 attorney, but not necessarily an attorney billing at a partn er rate, was required to p rep are the Reply to the Mo tion to D ism iss. Consequently, I will allo w the sen ior associate rate o f $150 an h ou r. Mo reo ver, I agree with D efe nd ant that only po rtio ns of the Reply relate to no n- U TPCPL claim s.

In d eterm inin g w hat portion is allowable, I reviewed the O pin ion on the M otion to Dism iss. App roxim ately 35% of the Op inion w as dev oted to m atters th at cou ld relate to the U TPCPL claim s. Consequently, I will reduce the allowable rate by 65%.

3/16/01 2.5 250 Plaintiff's response appears to agree that an $493.75 attorney, but not necessarily an attorney billing at a partner rate, was required to prepare the Brief in O pp osition to the Motion to Dism iss.

Consequently, I will allow the senior asso ciate rate of $1 50 an hour. Mo reov er, I agree w ith Defe ndant th at on ly portions o f the B rief relate to no n-U TPCPL claim s. In determ inin g w hat portion is allowable, I reviewed the Opinion on the Motion to Dismiss. Approxim ately 35% of the Op inion was devoted to matters that could relate to the UTPCPL claim. Consequently, I will reduce the allo wable rate by 65%.

3/16/01 2.2 50 This entry appears to be no thing mo re than $110 typing of the reply, brief and affidavit, as a legal assistant is not qualified to conduct legal research or write a responsive document. Consequently, the entirety of this entry is disallowed.

5/16/03 .4 250 Con trary to D efen dants' assertion, it is obviou s to $100 m e from the d ocke t that the time w as billed for a status co nferen ce before this co urt. How ever, I agree with Defendants that was no need to have two attorneys present at the status conference, especially given the non-involvement of partner BJE in the o verall c ase (BJE billed a to tal o f 1.9 ho urs). Co nsequently, the en tirety of this en try is disallowed.

5/16/03 .4 250 Con trary to D efen dants' assertion, it is obviou s to no m e from the d ocke t that the time w as billed for a reduction status conference before this court. Furthermo re, because the distinguishable n on -UTPCPL claims we re dism issed by this point,*fn4 a reduction is not appropriate.

5/23/03 .1 250 Because the distinguishable non-UTPCPL claims were no dismissed by this point, a reduction is not appropriate. reduction See, footnote 4.

6/16/03 .7 250 I disagree with Defendants that "office conference no with client" is not sufficiently stated. Consequently, a reduction reduction is not warranted.

9/16/03 .2 50 A letter to opposing counsel is recoverable. no Consequently, a reduction is not warranted. reduction

9/25/03 2.6 150 I do not believe that 3.5 is an excessive amount of time no 9/26/03 to review all of the documents in the case to prepare reduction .9 for depositions in this case. Consequently, a reduction is not warranted.

9/26/03 3.8 150 The total time at the deposition was 3 hours. See, $120 Docket No. 117, Ex. F. If the remaining time was spent preparing Plaintiff for the deposition, this should have been a separate entry. Consequently, the remainder of the time (.8) will be disallowed.

10/20/03 3.1 150 I have already allowed 3.5 hours for reviewing the $585 10/21/03 documents in the case to prepare for deposition. 3.5 .8 hours is more than generous. Consequently, I find this time to be excessive. Thus, the entirety of this entry is disallowed.

1/21/03 1.6 150 The total time at the deposition was .7 hours. See, $135 Docket No. 117, Ex. G. If the remaining time was spent preparing a summary of the deposition, it should have been in a separate entry. Consequently, the remainder of the time (.9) will be disallowed.

5/15/03 .3 50 I disagree with Defendants' objection that this time no should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same is not appropriate. See, footnote 4.

5/23/03 .8 50 I disagree with Defendants' objection that this time no should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same is not appropriate. See, footnote 4. Moreover, while it may be true that Plaintiff used a form request, Defendants have not provided me with the same to make the appropriate judgment of whether the time spent was excessive. Consequently, a reduction on this basis is not appropriate.

6/2/03 1.2 60 I disagree with Defendants' objections that this time no 6/2/03 1.3 should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same is not appropriate. See, footnote 4. Moreover, while it may be true that Plaintiff used a form request, Defendants have not provided me with the same to make the appropriate judgment of whether the time spent was excessive. Consequently, a reduction on this basis is not appropriate.

6/03/03 1.3 60 I disagree with Defendants that 1.3 is excessive for a no paralegal to respond to 19 interrogatories. See, Docket reduction No. 117, Ex. E. Consequently, a reduction on this basis is not appropriate.

6/03/03 1.2 60 I disagree with Defendants that 1.3 is excessive for a no paralegal to respond to request for production of reduction documents. Consequently, a reduction on this basis is not appropriate.

9/9/03 1.1 60 I have no basis upon which to determine whether 1.1 is no excessive for a paralegal to prepare supplemental reduction response to request for production of document.

Consequently, a reduction is not appropriate.

9/17/03 1.1 60 Defendants suggest that 1.1 was billed for a letter to no Kim Brown regarding a translator. (Docket No. 117-2, p. reduction 5). Counsel's bill, however, indicates that the time billed was .2. I do not find that .2 is excessive for a letter to opposing counsel. Consequently, a reduction is not appropriate.

11/05/03 .5 60 I agree with Defendants that it is sufficiently unclear to $30 me whether the paralegal simply made copies and put them in an envelope to Echo International, a purely ministerial function which should not be recoverable or whether there was something else associated therewith. Consequently, the entirety of this entry is disallowed.

1/20/04 5.3 150 I agree with Defendant that 6.8 is an excessive amount $270 2/9/04 1.5 of time to bill for preparing the response to the motion for summary judgment when it was only 10 pages long and counsel billed separately, as they should, for reviewing documents and conducting legal research. I find 5 hours is more than generous to prepare the same. Consequently, 1.8 hours will be disallowed

2/11/04 1.5 250 This document was billed for and prepared by a senior $175 associate. Review of the 10 page response should not take 1.5 hours. I find .8 to be more than generous for the same. Consequently, .7 will be disallowed.

1/20/04 1.8 150 I disagree with Defendants' objections that this time no 1/30/04 2.3 should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4. Moreover, I do not think that 4.1 is an excessive amount of time to bill for reviewing documents in an effort to respond to the motion for summary judgment.

2/04/04 .4 250 I disagree with Defendants' objections that this time no should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4. Moreover, I do not think that .4 is an excessive amount of time to bill for legal research in an effort to respond to the motion for summary judgment.

2/04/04 .1 250 After a review of the correspondence provided by no Plaintiff's counsel, I think there is sufficient specificity reduction to warrant the billing of .1 for receipt and review of correspondence from opposing counsel.

2/04/04 1.6 125 I disagree with Defendants' objections that this time no 2/11/04 1.4 should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4. Moreover, I do not think that 3.0 is an excessive amount of time to bill to draft a brief in opposition to a motion for summary judgment for legal research in an effort to respond to the motion for summary judgment.

2/08/04 1.1 150 I disagree with Defendants' objections that this time $165 should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4. However, I agree with Defendants that an entry that states "Draft of MetLife APP research groups for Summary Judgment Brief" lacks sufficient specificity. Plaintiff's counsel has failed to provide me with an explanation of what this task was or what needed to be done to complete the task.

Consequently, entries like this that are so vague as to defy any meaningful assessment of whether the hours were reasonably expended will not be permitted.

2/09/04 4.2 250 I disagree with Defendants' objections that this time $1,187.50 2/10/04 3.3 should be disallowed because a portion of the fees are 2/11/04 2.0 related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4. Moreover, because a form brief was used (with minor changes) and an associate previously billed 3.0 for the same task for which no deduction was taken, I am in agreement with Defendants that 9.5 is excessive. See, Docket No. 118, Exs. K & L. I believe that half that amount of time, or 4.75 is more than generous. Consequently, 4.75 will be disallowed.

2/09/04 1.0 150 I disagree with Defendants' objections that this time no should be disallowed because a portion of the fees are reduction related to non-UTPCPL claims. Since the distinguishable non-UTPCPL claims were dismissed by this point, a reduction for the same on this basis is not appropriate.

See, footnote 4.

2/10/04 1.0 250 While it is true that this task could have been no perfo rm ed by an associate, I do no t fin d it reduction unre ason able fo r the p artner signing the b rief to cond uct one ho ur of legal re search.

Consequently, no deduction is warranted.

6/07/04 .9 50 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

6/9/04 .8 50 I disagree w ith Defend ants' objectio ns that this $110 6/11/04 1.4 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. I do believe that 3.1 (.9 .8 1.4) is excessive for prep aring a d ocke ting statem ent. Plaintiff's first entry on this amount (.9) is more than generous for this m iniste rial task. Co nsequently, I will disallow the additional time entries for this task.

7/15/04 3.1 125 I disagree w ith Defend ants' objectio ns that this $575 2.5 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Ho wever, I agree w ith Defend ants th at 5.6 hou rs is excessive for the billing of the statement of the case for the Third Circuit brief when it was virtually cut and p asted fro m Plaintiff's brief in op po sitio n to sum m ary judgm en t. I believe 1.0 is more than generous for the billing of a cut and paste tw o p age section in an appellate brief. See, Do cket No . 118, Exs. K and M . Consequently, 4.6 ho urs w ill be dedu cte d.

7/19/04 7.9 125 I disagree w ith Defend ants' objectio ns that this $862.50 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

Ho wever, I agree w ith Defend ants th at 7.9 hou rs is excessive for the billing an outline for the legal issues to be presen ted in the Th ird Circuit brief, when the brief was virtually cut and pasted from other Third Circuit briefs pre pared by Plaintiffs' coun sel. Thus, I believe 1.0 is m ore than g en erou s.

See, Docket No. 118, Exs. M and N. Consequently, 6.9 hours will be deducted.

7/20/04 7.2 125 I disagree w ith Defend ants' objectio ns that this $6,175 7/22/04 8.9 (KMM) time should be disallowed because a portion of 7/23/04 5.0 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re 7/22/04 5.6 150 dismissed by this point, a reduction for the same 7/26/04 1.0 (DAT) on this basis is not approp riate. See, footno te 4. 7/26/04 1.7 Howe ver, I agree with Defe ndants th at 47.4 hours is excessive for the billing of the brief section on ly 7/22/04 1.4 (KRB) of an appellate brief, the majority of which is cut 7/25/04 3.6 and p asted fro m a prior brief. See, Docket No. 7/26/04 3.1 118, Exs. M and N. I find that 10 hours for the 7/30/04 3.0 preparation of a rew orked cut and paste by an 8/02/04 6.9 associate and 3 ho urs by th e sign ing partner is m ore than g en erou s fo r th is task. Con sequ en tly, I will perm it the 8.3 hours b y the senior associate and 1.7 hou rs by th e junio r associate, and I w ill perm it 3 hou rs to be billed by the partner.

7/26/04 1.6 150 I disagree w ith Defend ants' objectio ns that this $175 7/28/04 .5 (DAT) time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re 7/30/04 .8 250 dismissed by this point, a reduction for the same (KRB) on this basis is not approp riate. See, footno te 4.

Howe ver, I find that the d rafting o f the su m m ary of the argument should not take more than 2 hours total. Consequently, I will disallow .5 of the tim e billed by the asso ciate and .4 of the time billed by the p artner.

7/27/04 2.9 50 I disagree w ith Defend ants' objectio ns that this $1,260 7/28/04 7.2 time should be disallowed because a portion of 7/29/04 7.0 the fees are related to non-UTPCPL claims. Since 7/30/04 2.2 the d istinguishab le non-UTP CPL claim s we re 8/02/04 6.4 dismissed by this point, a reduction for the same 8/16/04 7.2 on this basis is not approp riate. See, footno te 4. 8/17/04 .3 However, I do agree that 33.2 hours is excessive for preparing a reproduced record by a legal assistant. I find 8 hours is m ore th an gene rous to prepare the sam e. Con sequ en tly, 25.2 hou rs is disallowed.

7/28/04 .9 125 I disagree w ith Defend ants' objectio ns that this $55 time should be disallowed because a portion of 7/29/04 .4 75 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re 7/29/04 .2 250 dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. How ever, I find that legal and/or paralegal compilation of the reproduced record should not take more than 1 hour, especially given the fact that I am permitting 8 hours to be billed by the leg al assistant fo r th e sam e task. See, entry above. Consequen tly, I will disallow .4 of the paralegal time and .1 of the partn er time billed fo r this task 7/28/04 1.4 125 I disagree w ith Defend ants' objectio ns that this $175 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Howe ver, I agree with Defe ndants th at an entry that states "Legal rese arch fo r 3rd Circuit Brief" lacks sufficient specificity. Plaintiff's counsel has failed to provide m e with an explanation of wh at legal research was conducted. Consequently, entries like this that are so vague as to defy any m eaningful assessm ent o f wh ethe r the h ours were reasonably expended will not be permitted.

7/30/04 .2 250 I agree with Defendants that an that states $50 "Telephone call to Asian Pacific Center" lacks sufficient specificity. Plaintiff's counsel has failed to pro vide m e w ith an explanation o f w hy the call was made. Co nseq uen tly, entries like this that are so vague as to defy any meaningful assessment of whether the ho urs were reasonably expend ed will not be permitted.

8/02/04 .6 75 I disagree w ith Defend ants' objectio ns that this $45 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. How ever, I am un able to determine in wh at way the paralegal billing for this entry aided in the "Preparation of brief." Consequen tly, entries like this that are so vague as to defy any meaningful assessm ent of whether the ho urs were reasonably expended will not be permitted.

8/04/04 1.5 75 I agree with Defendants that "Letter to Pendleton" $75 lacks sufficient specificity. Howe ver, after a review of the letter provided in response by Plaintiff, I find Plaintiff is en titled to fees fo r th is letter, but th at it should no t have taken more than .5 hou rs to draft. Consequently, 1.0 is disallowed.

9/07/04 .2 250 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction 9/08/04 4.4 125 the fees are related to non-UTPCPL claims. Since 9/09/04 2.9 the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

9/10/04 6.0 125 I disagree w ith Defend ants' objectio ns that this $1825.00 9/12/04 3.0 time should be disallowed because a portion of 9/13/04 3.4 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re 9/14/04 4.1 250 dismissed by this point, a reduction for the same 9/15/04 2.5 on this basis is not approp riate. See, footno te 4.

Defendants further argue that this is a cut and paste form reply brief, but do not provide me with either the reply brief in this case or any other case. It is Plaintiff's burden to justify 19 hours on drafting a reply brief that by the rules can be no longer than 15 pages. Plaintiff has not provided me with its brief such that I could review the sam e. Simply pu t, I believe that 19 h ou rs is excessive. I find 9 hours of associate time and 1 ho ur of partn er tim e to b e m ore than g en erou s. Con sequ ently, I will disallow 3.4 ho urs of associate time and 5.6 of partner time.

10/07/05 .6 50 I disagree w ith Defend ants' objectio ns that this no 10/11/05 1.3 time should be disallowed because a portion of reduction the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

10/17/05 1.3 50 I disagree w ith Defend ants' objectio ns that this $65 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. However, the factual statement was virtually cut and p asted fro m othe r filin gs. Compare, Docket No. 32 with Docket No. 46. Consequently, I do not believe that recovery of a fee for this ministerial task should be permitted.

1/12/05 .7 250 I agree with D efend ants that prep aration of a $110 1/13/05 .4 letter to the Third Circuit regarding citation of sup plem ental au thority, th at ac cordin g to the rule cannot exceed 350 words, is a task that could have been pe rformed b y a senior associate, rather than a partne r.

1/13/05 .2 50 I agree with Defendants that an entry that states $10 "Letter to client" lacks sufficient specificity.

Plaintiff does not explain this entry in response or provide a copy of the letter. Consequently, entries like this that are so vague as to defy any m eaningful assessm ent o f wh ethe r the h ours were reasonably expended will not be permitted.

1/28/05 .4 250 I agree with Defendants that an entry that states $100 "Letter to 3rd circuit" lacks sufficient specificity.

Plaintiff does not explain this entry in response or provide a copy of the letter. Consequently, entries like this that are so vague as to defy any m eaningful assessm ent o f wh ethe r the h ours were reasonably expended will not be permitted.

2/6/05 1.4 250 I agree with Plaintiff that research in preparation no for oral arg um ent be fore the Third Circuit shou ld reduction be conducted by the counsel presenting the argum ent.

2/15/05 .5 250 I disagree w ith Defend ants' objectio ns that this no 2/16/05 .5 time should be disallowed because a portion of reduction 2/17/05 6.5 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

2/18/05 3.3 250 I disagree w ith Defend ants' objectio ns that this $825 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. However, I agree with Defendants that billing a total of 12.2 hours (1.4 .5 .5 6.5 3.3) is a bit excessive. I believe 8.9 hours is more than gene rous for th e sam e. Con sequ en tly, this en try is disallowed .

2/18/05 1.0 250 Trav el tim e of one ho ur to cou rt is acceptable no because counsel stayed with a relative and reduction there fore d id not charg e for lo dging, m eals, parking or tolls.

6/9/05 .5 250 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

6/9/05 1.3 250 I disagree w ith Defend ants' objectio ns that this $325 time should be disallowed because a portion of 7/07/05 3.0 125 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Howe ver, I agree that the research n ecessary could have been performed by an associate and was in fact perform ed by an associate. Consequently, 1.3 hours by partner is disallowed.

6/09/05 .9 125 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction 6/23/05 .6 250 the fees are related to non-UTPCPL claims. Since 6/30/05 .8 the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

7/7/05 .2 125 I disagree w ith Defend ants' objectio ns that this $25 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Howe ver, I agree with Defe ndants th at 1.1 ho urs (.2 .9 billed previously) is excessive for review of Defendants' petition for rehearing. Consequently, this entry will be disallowed.

7/01/05 1.9 250 I disagree w ith Defend ants' objectio ns that this $4,025 7/02/05 9.1 time should be disallowed because a portion of 7/07/05 4.6 the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re 7/05/05 3.0 125 dismissed by this point, a reduction for the same 7/06/05 2.6 on this basis is not approp riate. See, footno te 4. 7/07/05 3.1 Ho wever, I do b eliev e th at 24.6 h ou rs is grossly 7/07/05 .3 excessive for drafting of an answer to a petition for reh earing en b anc. Plaintiff has failed to provide me with a copy of the same to justify such excessive billing. With that said, I believe 5.0 of associate time and 1.0 of p artner time is mo re than gen erou s.

8/11/05 1.5 250 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4.

8/11/05 1.8 50 I disagree w ith Defend ants' objectio ns that this $65 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. How ever, I agree with Defendan ts 1.8 is an excessive amount of time to bill for the form pretrial statem en t filed in this m atter. I think .5 is mo re than generou s for this ministerial task.

8/11/05 .6 50 I disagree w ith Defend ants' objectio ns that this $30 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Howe ver, I agree with Defe ndants th at an entry that states "Prepare do cum ents fo r argum ent" lacks sufficient specificity. Plaintiff does not explain why a fee for what appears to be a ministerial task is recoverable as a fee.

Consequen tly, entries like this that are so vague as to defy any meaningful assessment of whether the hours were reasonably expended will not be permitted.

8/16/05 .1 250 I disagree w ith Defend ants' objectio ns that this no 8/17/05 .1 time should be disallowed because a portion of reduction 10/06/05 2.1 the fees are related to non-UTPCPL claims. Since 01/07/05 .4 the d istinguishab le non-UTP CPL claim s we re 10/11/05 dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. 8/16/05 .4 50 10/11/05 .9 250 I disagree w ith Defend ants' objectio ns that this $150 time should be disallowed because a portion of the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. Ho wever, I agree w ith Defend ants th at this tim e is excessive for the revising of a pre-trial statement that w as previously filed and th at th e task cou ld have been performed by an associate. I believe that .5 hours is more appropriate at the senior associate rate.

10/11/05 1.7 125 See entry above. Consequently, the entirety of $212.50 this entry will be disallowed.

10/12/05 .3 250 I disagree w ith Defend ants' objectio ns that this no time should be disallowed because a portion of reduction the fees are related to non-UTPCPL claims. Since the d istinguishab le non-UTP CPL claim s we re dismissed by this point, a reduction for the same on this basis is not approp riate. See, footno te 4. I find that it was ap pro priate for a partn er to bill for preparing a motion in limine.

10/12/05 1.1 125 I do n ot find that 1.1 is exc essive fo r time billed to no prep are pro posed voir dire reduction 10/12/05 8.5 125 Unlike other activities performed above by $1,133.33 10/13/05 5.1 Plaintiff's counsel, I am able to determ ine that only approxim ately one-third of th e jury instruction s we re devote d to U TPCPL claims. As a result, these entries must be reduced by two-thirds.

10/17/05 3.0 125 None of Defendants' proposed jury instructions $375 included charges on Plaintiff's UTPCP L claim. As a result, this entry is not recoverable.

10/19/05 .2 250 Defendants do not point out for me which no m otion s in limine they believe are no t related to reduction the U TPCPL claim s. So m e m otion s w ou ld relate in some way to the UTPCPL claims. Thus, a reduction for th e sam e o n this basis is n ot approp riate. See, footno te 4.

10/25/05 .3 250 I find that this entry "prepare resp onses to $75 MetLife's mo tion in limine" lacks the proper specificity. I am unable to determine to which mo tion in limine counsel was respond ing, but I am sure th at he is not billing .3 for respo nd ing to all 7 motions since he bills separately for at least one other motion and his associate bills for respo nding to the m otion s.

10/25/05 5.0 125 Defendants do not point out for me which no 10/27/05 1.7 m otion s in limine they believe are no t related to reduction 10/28/06 1.6 the UTPCPL claims. Some would relate in some 10/28/05 1.2 way to the UTPCPL claims. Thus, a reduction for 10/28/05 1.5 the sam e o n this basis is n ot approp riate. See, footnote 4. Moreover, I find them to be sufficiently specific.

10/31/05 2.9 125 The motion in limine regarding the bifurcation of $362.50 punitive damage portion of the trial had nothing to do with Plaintiff's UTPCPL claim. Therefore, th is entry is not recoverable.

11/01/05 5.1 250 I agree w ith Defend ants th at it was excessive for a $525 partner to bill 5.1 for the drafting of a reply to a m otion in lim ine regarding dam ages. I believe 3.0 is m ore than g en erou s.

11/01/05 2.8 125 I believe that the market conduct motion pertains no to UTPCPL claims an d find that 2.8 is n ot excessive. reduction 11/01/05 .8 125 I believe th at the e xpert motion may pe rtain to no the UTPCPL claims and find that .8 is not excessive. reduction 11/01/05 2.0 125 I find that this m otion in limine related, in part, to no UTPCPL claim s. reduction 11/01/05 1.1 125 The motion in limine regard ing the ne t wo rth $137.50 relates to pun itive dam ages w hich h ad nothing to do with Plaintiff's UTPCPL claim. Therefore, th is entry is not recoverable.

2/17/06 .2 50 I agree with Defendants that an entry that states $10 "Letter to client" lacks sufficient specificity.

Plaintiff does not explain this entry in response or provide a copy of the letter. Consequently, entries like this that are so vague as to defy any m eaningful assessm ent o f wh ethe r the h ours were reasonably expended will not be permitted.

3/16/06 .3 250 A call to Plaintiff's expert w ou ld h ave related, in no 4/15/06 .6 som e w ay, to Plaintiff's UTPCPL claim. reduction 4/05/06 1.2 250 Since the partne r drafted the first m otion , I find it no was most economical to have him draft the reduction supplemental response.

4/05/06 .2 250 I agree that a telephone call to the translator for $20 trial could have been performed by an associate.

4/15/06 2.5 250 I agree with Defendants that an entry that states $1,300 4/15/06 1.1 "trial preparation" lacks sufficient specificity. The 4/18/06 .9 non-lead trial counse l shou ld be able to state 4/18/06 .7 specifically what task he performed in preparing for trial. I am un able to e ven d isce rn what issu e it involved. Unfo rtunately, entries like this that are so vague as to defy any meaningful assessment of whether the ho urs were reasonably expend ed will not be permitted.

4/17/06 2.1 75 Again, I agree with Defendan ts that an entry that $157.50 states "trial preparation" lacks sufficient specificity. The paralegal shou ld be able to state specifically what task she performed in preparing for trial. I am un able to e ven d isce rn what issu e it involved. Unfo rtunately, entries like this that are so vague as to defy any meaningful assessment of whether the ho urs were reasonably expend ed will not be permitted.

4/17/05 3.4 50 I do not find it excessive to spend 3.4 hours on no organizing documents for trial presentation. reduction 4/18/06 .5 250 I agree with Defendants that an entry that states $125 (KRB "Court - argument" that is made on a day during trial) which the trial was h eld is insufficien tly specific. I have no ind epen dent recollection o n w hat to pic Mr. Behren d argu ed an d he did not pro vide a cite to the page of the transcript when the argument occurred. A fter a review of the tran script, I cannot locate the same. Consequently, I find I must disallow this entry.

4/18/06 3.0 250 This meeting most likely dealt with the UTPCPL no claims. Furthermore, I find no issue with the fact reduction that both lead an d no n lead trial counsel we re presen t.

4/18/06 6.4 125 I disagree w ith Defend ants' objectio ns that this no 4/19/06 7.1 time should be disallowed because a portion of reduction 4/20/06 5.5 the fees are related to n on -UTPCPL claims. 4/24/06 3.2 Mo reov er, I find no issue with the fact that there 4/24/06 .3 were two coun sel present at the trial for Plaintiff. 4/25/06 1.1 4/25/06 3.1 4/18/06 .2 75 The net worth relates to punitive damages which $15 had n othin g to d o w ith Plaintiff's UTPCPL claim. Therefore, this entry is not recoverable.

4/18/06 .8 50 I do not find this time excessive in light of the fact no that trial is ongoing at this po int. reduction 4/19/06 .7 250 I find review of the proposed jury charge to be no appropriately billed by a partn er. reduction 4/19/06 3.1 250 I find 3.1 hours for proposed modifications to the $275 jury charge to be excessive. I find 2.0 hours to be m ore th an gene rous.

4/19/06 .8 250 I do not find the time for the conference to be no duplicative. reduction 4/19/06 5.2 125 I find that this legal research could have related to no UTPCPL claims. reduction 4/19/06 .6 75 4/20/06 1.4 4/20/06 2.5 250 I have alre ady perm itted 2.0 hou rs for this task. $625

Consequently, the entire entry must be disallowed.

4/20/06 .7 250 This relate s to the U TPCPL claim s. I fin d it $162.50 4/20/06 .6 appropriate for non-lead trial counsel to bill for this tim e, sin ce it ap peare d to b e an issue at trial.

Howe ver, it shou ld have been b illed at his trial rate of $125.

4/20/06 .7 250 Undoubtedly, this time relates to the UTPCPL no claims. Moreo ver, I do n ot find the tim e reduction duplicative.

4/21/06 .9 250 Partner, BJE, billed "Conference - closing and $225 evidence" on a day n o other atto rney billed for a conference. I have no understanding of why a partn er, who has only bille d o ne othe r hou r in this case, is billing for a conference when no other trial attorney is at the conference with her when it relates to closings an d evidenc e. This time must be disallo wed.

4/22/06 2.0 250 Undoubtedly, this time relates to the UTPCPL no claims. Moreo ver, I do n ot find the tim e reduction duplicative.

4/22/06 2.5 250 This en try relate s to the U TPCPL claim s. How ever, I $312.50 4/24/06 find that the time billed for this entry should be billed at Mr. Behrend's trial rate.

4/25/06 .2 250 It is a ministerial task to answer the telephone and $100 4/25/06 .2 receive the m essage that co unse l mu st repo rt to the cou rth ou se because the re is a jury qu estion. Consequently, this tim e m ust be disallo wed.

4/26/06 .5 250 Portions of the post-trial motion relate to the no UTPCPL claims. reduction TOTAL FEE DISALLOWED $28,375.32

After my calculations at the new rates, I find the total fee requested is $80,837.40, less the total fees disallowed ($28,375.32) for a lodestar of $52,462.08.

c. Adjustments to the Lodestar

Having determined the basic lodestar amount does not end my inquiry. Hensley, 461 U.S. at 434. I may adjust the lodestar upward or downward based on a variety of reasons. "[T]he most critical factor is the degree of success obtained."

Id. at 436. "There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Id. at 436-37. In this case, however, I made the deductions for non-UTPCPL claims, when possible, in determining the reasonableness of the hours expended. Moreover, there is a basic common core of facts. Therefore, I find it is unfair to adjust the lodestar in a wholesale approach. Consequently, no further adjustment will be made for this reason.

Defendants also request that this Court reduce the fees based on Plaintiff's rejection of a "substantial" settlement offer. (Docket No. 117, p. 2-3). Plaintiff does not respond to this argument. See, Docket No. 123.

Substantial settlement offers should be considered by the district court as a factor in determining an award of reasonable attorney's fees, even where Rule 68 does not apply. See Sheppard v. Riverview Nursing Center, Inc. , 88 F.3d 1332, 1337 (4th Cir.1996). Attorney's fees accumulated after a party rejects a substantial offer provide minimal benefit to the prevailing party, and thus a reasonable attorney's fee may be less than the lodestar calculation. See Marek v. Chesny , 473 U.S. 1, 11, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Determining whether an offer is substantial is left in the first instance to the discretion of the district court. Nevertheless, an offer is substantial if, as in this case, the offered amount appears to be roughly equal to or more than the total damages recovered by the prevailing party. In such circumstances, a district court should reflect on whether to award only a percentage (including zero percent) of the attorney's fees that were incurred after the date of the settlement offer.

Moriarty v. Svec, 233 F.3d 955, 967 (7 th Cir. 2000). In this case, the offer made was for $17,500.00 on August 17, 2005. Fees sought by Plaintiff occurring after August 17, 2005, exceed 185 hours. The total damages awarded in the case is $75,000.00. ( See , discussion below regarding treble damages). I do not believe that $17,000.00 compared to $75,000.00 is a substantial offer. Consequently, I will not reduce the fees based on this theory.

Finally, I find that there is a proportionality between the total damages of $75,000.00 and the total fees and costs awarded in this case of $63,331.89 (close to 1:1). Consequently, I will not reduce the fees based on the proportionality theory.

2. Costs

Plaintiff seeks reimbursement of costs in the amount of $13,273.56. Defendants make objections in table format, and Plaintiff responds accordingly. Therefore, I will address them in a similar fashion.

Date Amoun Ruling Deduct t ($) ed amount , if any

4/4/00 17.50 I agree with Defendants that $0.25 is excessive for $383.04 1/31/00 18.00 making copies. I find $0.10 more than generous taking 3/31/00 19.75 into consideration ministerial overhead activities at the 5/31/03 3.75 firm an d that IKON charg es 3.5 cents for making copies. 6/30/03 22.50 8/31/03 1.00 9/30/03 4.75 10/31/0 13.00 3 1.50 11/30/0 105.00 3 28.50 2/29/04 19.50 5/31/04 207.00 6/30/04 56.40 7/31/04 120.25 8/31/04 9/31/04 11/30/0 88.05 I agree with Defendants that $0.15 is excessive for $116.40 5 261.15 making copies. I find $0.10 more than generous taking 4/30/06 into consideration ministerial overhead activities at the firm an d that IKON charg es 3.5 cents for making copies.

4/11/06 50.00 Contrary to Defend ants' assertio ns, Ms. Taylo r's $10.00 testimony was pertinent in the U TPCPL claims. How ever, that statute only provides for a $40.00 witness fee. 28 U.S.C. §1821. Consequently, $10 will be disallowed.

4/18/06 1,119.60 This is a simp le, non -com plex case w here in Defend ants $1,119.60 prov ided few er than 500 docum en ts. This case alone is not the type of case w here you w ould need to h ire an outside com pany to provide a database that could have been prepare d in -ho use, if Plaintiff's coun sel be lieved it to be so ne cessary. Consequently, the en tirety of this cost will not be permitted 4/18/06 536.40 I am willing to perm it the recovery of co pies for trial $160.80 bo oks in this p articular case even w hen Plaintiff only used fifteen exhibits at trial because I had not sent out an order requiring Plaintiff to file a supplemental pre-trial statement listing only those exhibits that he/she plann ed o n using at trial. How ever, I agree w ith Defend ants th at $0.15 is e xcessive for m aking copies. I find $0.10 more than generous taking into consideration ministerial overhead activities at the firm and that IKON charg es 3.5 cents for making copies.

4/28/06 312.66 Contrary to Defend ants' assertio ns, Mr. Carter's no testim on y w as p ertinen t in the U TPCPL claim s. redu ctio n 4/28/06 666.32 Plaintiff's expert w as o nly ne cessary for one day o f trial. $482.76

Thus, he should have needed, at most, one night of lodging. Consequently, $482.76 will be disallowed.

4/28/06 72.56 Similarly, Plaintiff's expert was only necessary for one $35.44 day o f trial Con sequ en tly, $35.44 w ill be disallo wed.

4/28/06 120.71 I find $120.71 to be unnecessary and excessive for the $95.71 purchase of 25 sets of tab dividers. First of all, I do not understand the need for 25 sets of tab dividers, when there we re on ly two cou nsel fo r Plaintiff. I find this to be excessive and 10 sets to be m ore th an gene rous, especially given that only fifteen exhibits were used at trial. Furthermore, $4.50 per set to be excessive. I find up to $2.50 to be more than generous. Consequently, $95.71 will be disallowed.

TOTA L COSTS D ISALLOW ED $2,403.

Therefore, the total costs requested is $13,273.56, less the total costs disallowed ($2,403.75) results in the total costs recoverable in the amount of $10,869.81.

Accordingly, the total reasonable fees and costs recoverable is $63,331.89.

B. Post Judgment Interest

Plaintiff is entitled to post judgment interest consistent with 28 U.S.C. §1961.

C. Treble Damages

The UTPCPL provides, in pertinent part, that "[t]he court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper." 73 Pa. S.T. §201-9.2(a)(as amended 1996). Defendants argue that I should not treble damages because the jury did not find intent on their part on the fraudulent and negligent misrepresentation claims. (Docket No. 107, pp. 2, 9-10). I disagree. There is no dispute that the imposition of treble damages is punitive in nature. I find, based on the testimony and evidence produced at trial, that the conduct of Defendants was with reckless indifference to the interest of others and, merits an award three times the damages sustained. Therefore, pursuant to §201-9.2, in my discretion, I award treble damages, or $75,000.00, in this case.

AMBROSE, Chief District Judge.

ORDER OF COURT

And now, this 12thday o f August, 2006, after careful co nsideration of Plaintiff's Motion to Am en d Jud gm en t Pursuant to Rule 59(e) (Do cket No. 103), it is ORDEREDthat said Motion (Docket No . 103) is granted as follows:

A. Plaintiff is award ed $52,462.08 for atto rney s fees and $10,869.81 for costs.

B. Plaintiff is entitled to treble damages, for a total damage award of $75,000.00.

C. Plaintiff is entitled to post judgment interest consistent with 28 U.S.C §1961.

Donetta W. Ambrose, Chief U. S. District Judge


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