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Tran v. Metropolitan Life Insurance Co.

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, ...


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