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Watcher v. Pottsville Area Emergency Medical Service

April 28, 2008


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Plaintiff Shirley Watcher's Petition for Attorneys' Fees and Costs (Doc. 171) and Plaintiff's Supplemental Petition to Mold the Verdict Relative to Attorney's Fees and Costs (Doc. 231-1). For the reasons set forth below, Plaintiff's petition will be granted in part and denied in part.


Plaintiff Shirley Watcher brought an action against Pottsville Area Emergency Medical Service, Inc., (hereinafter "PAEMS") alleging sex discrimination under Title VII, age discrimination under the Age Discrimination in Employment Act ("ADEA"), discrimination under the Pennsylvania Human Relations Act ("PHRA") and various other state law claims. (Mem. & Order, Oct. 5, 2004, Doc. 227, at 1.) After a jury trial, a verdict was rendered in favor of Plaintiff on her claims of age discrimination, in the form of a hostile work environment, under both the ADEA and the PHRA, but the jury found that Plaintiff was not fired because of her age and also returned a verdict in favor of Defendant PEMS on the sex discrimination claim. (Id.) The jury also found PEMS's conduct to have been wilful within the meaning of the ADEA. The jury awarded Plaintiff thirty thousand dollars ($30,000) for emotional pain and suffering and eighty-five thousand and twenty-seven dollars ($85,027) for back pay. (Id.) An amount equal to the back pay award was later added as liquidated damages, but after post-trial motions, both the back pay and liquidated damages were eliminated. (Id. at 2; Mem. & Order, Oct. 5, 2004, Doc. 225; Amended Judgment, Doc. 226.) Plaintiff and Defendant each appealed portions of post-trial rulings, and the Third Circuit Court of Appeals affirmed each of the challenged orders. Watcher v. Pottsville Area Emergency Med. Servs., Inc., 248 Fed. Appx. 272 (3d Cir. 2007).

Plaintiff now requests the Court award her counsel attorneys' fees in the amount of five hundred and one thousand, one hundred seventy-two dollars and fifty cents ($501,172.50) as well as costs. (Pl.'s Supplemental Pet. to Mold the Verdict Relative to Att'ys Fees and Costs [hereinafter "Supp. Pet."], Doc. 231-1 ¶ 7.) This motion is fully briefed and ripe for disposition.


I. Appropriateness of Awarding Attorneys' Fees and Costs

Both the ADEA and the PHRA provide that attorneys' fees and costs are recoverable from an employers who have unlawfully discriminated in violation of either statute. The ADEA incorporates by reference § 16(b) of the Fair Labor Standards Act of 1938, which provides that the Court "shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b); see 29 U.S.C. § 626(b). An award of attorneys' fees and costs under the PHRA is discretionary. See 43 Pa. Stat. Ann. § 962(c)(4)(c.2) ("[T]he court may award attorney fees and costs to the prevailing plaintiff.").

Defendant submits that Plaintiff's petition is "so intolerably inflated and outrageously excessive, including literally hundreds of submissions to which she is not entitled," that the Court should deny her petition in its entirety. (Def.'s Objections in Resp., Doc. 234-1, at 2-6.) However, a plaintiff is considered a prevailing party for attorney's fees purposes if she succeeds "on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992). Because Plaintiff successfully proved at trial that Defendant did unlawfully discriminate in violation of the ADEA and the PHRA, I will award attorneys' fees and costs after determining the appropriate amount.

The initial estimate of the appropriate fee "is properly calculated by multiplying the number of hours reasonably expended on litigation times a reasonable hourly rate." Blum v. Stetson, 465 U.S. 886, 888 (1984). This amount is known as the "lodestar" figure, which is presumed to be the reasonable fee, but may require subsequent adjustment. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008).

II. Hourly Rates

In calculating the reasonable rate, the Court looks to the prevailing market rates in the relevant community. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The Court should consider the experience and skill of the prevailing party's attorney, and compare the rates to those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The prevailing party bears the burden of demonstrating that the requested hourly rates are reasonable. Id. However, where "the plaintiff has met his prima facie burden under the community market rate lodestar test, and the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requested rate downward." Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 139 (3d Cir. 2007) (quoting Washington v. Phila. County Ct. Com. Pl., 89 F.3d 1031, 1036 (3d Cir. 1996)).

Plaintiff requests the following hourly rates for her counsel at the firm Zarwin, Baum, DeVito, Kaplan, O'Donnell & Schaer P.C, which is located in Philadelphia. For Joseph M. Toddy, who specializes in complex litigation; has represented employees, state agencies, and employers in many employment discrimination cases; and has been practicing law since 1984, Plaintiff requests two hundred seventy-five dollars ($275). (Verification of Joseph M. Toddy, Ex. A to Doc. 171 ¶¶ 1-7.) Plaintiff also requests for Jay Solnick, who left the firm in 2000 and has been practicing law since 1994, one hundred seventy-five dollars ($175); for Michael Misher, who has been practicing since 1996, one hundred eighty dollars ($180); for Michelle Sergeant Kaas, who left the firm in 2001 and has been practicing since 1997, one hundred sixty dollars ($160); and for James Keating, who has been practicing since 2002, one hundred fifty dollars ($150). (Id. ¶¶ 9-19.) For the work of law clerks at the firm, Thomas Kelly, Robert Malzel, and Michael Liggeria, Plaintiff requests an hourly rate of ninety dollars ($90). (Id. ¶ 20; Supplemental Verification of Joseph M. Toddy, Ex. A to Doc. 231-1 ¶ 3.) Finally, for Ryan Harmon, who has been practicing law since 2003, Plaintiff requests a rate of ninety dollars ($90) for the work he did while a law clerk, and a rate of one hundred fifty dollars ($150) for the work he did, subsequent to the entry of the jury verdict, as an attorney at the firm. (Verification, Ex. A to Doc. 171 ¶ 20; Supplemental Verification, Ex. A to Doc. 231-1 ¶¶ 1-2.)

In support of these rates, Plaintiff submitted two (2) verifications of Attorney Toddy, stating that he has billed his clients at an hourly rate of two hundred seventy-five dollars ($275) per hour since January 1, 1998, listing the federal and state courts before which he is admitted to practice, and describing his experience in employment discrimination and other areas. (Ex. A to Doc. 171 ¶ 1-7.) The verification names seven (7) other attorneys with comparable experience who practice within the Third Circuit and who bill at an hourly rate of at least two hundred seventy-five dollars ($275). (Id. ¶ 8.) Plaintiff also submitted the verification of one of those attorneys, Dennis L. Friedman, who states that he charges three hundred dollars ($300) per hour and lists other employment attorneys whose hourly billing rate is similar to his. (Ex. 1 to Doc. 171.) He also attached the Community Legal Services hourly fee schedule, which was most recently updated in October 2001, and explains that this schedule is created by a board comprising a representative cross section of the Philadelphia bar and is based on a survey of the rates of private law firms and individual practitioners within the Third Circuit. (Id. ¶ 16.) Friedman also cites to a decision by the Third Circuit Court of Appeals which accepted that schedule as a "fair reflection of the prevailing market rates in Philadelphia." (Id. ¶ 19 (citing Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001)). That schedule provides ranges of hourly rates to correspond with various levels of legal experience, as well as ranges of hourly rates for law students and paralegals. (See Ex. 2 to Doc. 171.) The requested rates for each attorney and law clerk listed above are approximately in line with the fee schedule.

Based on the foregoing submissions, Plaintiff has met her prima facie burden of demonstrating that the requested hourly rates are reasonable in light of the prevailing market rates in the relevant legal community. Defendant argues that Plaintiff's fee petition lists a large amount of time her counsel spent on general research, "not in response to particular motions or the litigation process, but to educate themselves on the state of the law," and therefore argues that counsel's hourly rates should be lowered. But Defendant has not suggested alternate rates or produced evidence of what less experienced attorneys charge; thus it is more appropriate to address Defendant's concern in the following step, the reasonableness of hours expended. Plaintiff's rates will be accepted as reasonable.

III. Reasonableness of Hours Expended

The Court must also determine whether the number of hours spent on the litigation was reasonable. The Court "should review the time charged, decide whether the hours claimed were reasonably expended for each of the particular purposes described, and then exclude those that are 'excessive, redundant, or otherwise unnecessary.'" Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (citations omitted). The general guide for reasonableness is that "[h]ours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)(citation omitted).

To meet her initial burden of proving that requested fees are reasonable, Plaintiff must submit evidence of the hours worked that is "specific enough to allow the district court to determine if the hours claimed are unreasonable for the work performed." Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996). To be specific enough, a petition must be "fairly definite ... as to the hours devoted to general activities, e.g., pretrial discovery, settlement negotiations .... However, it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted." Id. at 1037-38 (citing Rode v. Dellarciprete, 892 F.2d 1177, 1190 (3d Cir. 1990)). Further, there is no requirement "that records be kept by task - e.g., for each motion, issue or part of the case." Id. at 1038.

Once Plaintiff has met this initial burden, "[t]he party opposing the fee award then has the burden to challenge the reasonableness of the requested fee, by affidavit or brief with sufficient specificity to give the fee applicant notice of the objection." E.E.O.C. v. Fed. Express Corp., -- F. Supp. 2d --, Civ. A. No. 1:02-CV-1194, 2005 WL 6073699, at *15 (M.D. Pa. Jan. 18, 2005) (Kane, J.). "Once the adverse party raised objections to the fee request, the district court has considerable discretion to adjust the award in light of those objections." Id. The Court has categorized the fees that follow by comparing Defendant's lists and descriptions of charges to which it objects with Plaintiff's lists and descriptions of hours expended in her fee petition.

A. General Legal Research

Defendant contests fees from Exhibit B of Plaintiff's petition for "legal research not relative to responding or replying to substantive motions (or the issue of Laubach's criminal conviction) but necessary to practicing as an employment law attorney charging $275 per hour." (Ex. A to Def.'s Objections, Doc. 234-2, at 17.) Generally, "[c]ompensable activities include the preparation of filing the lawsuit, background research, productive attorney discussions and strategy sessions, negotiations, routine activities such as making telephone calls and reading mail related to the case, monitoring and enforcing a favorable judgment, and travel among other things." DirecTV, Inc. v. Clark, Civil No. 03-2477 (JBS), 2007 WL 2212608, at *4 (D.N.J. July 27, 2001) (emphasis added). Moreover, 79.6 hours billed for "general research," has been approved as reasonable even though that research was not attributed to "any particular pleading or trial preparation." See Garner v. Meoli, No. Civ. A. 96-1351, 1998 WL 560377, at *4 (E.D. Pa. Aug. 31, 1998).

Defendant cites caselaw which states that "[h]ours spent reading background cases or familiarizing oneself with the general area of law should be absorbed in the firms' overhead and not be billed to the client." Gudenkauf v. Stauffer Commc'ns, Inc., 953 F. Supp. 1237, 1243 (D. Kan 1997) (citing Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983), overruled on other grounds by Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987). It is true that courts have reduced the amount of time recoverable for background research of a very general nature. For instance, in American Lung Ass'n v. Reilly, 144 F.R.D. 622, 627-28 (E.D.N.Y. 1992), the court allowed compensation for only ten (10) out of 22.9 hours that attorneys who "characterize[d] themselves as experts in the field of federal environmental law" spent familiarizing themselves with the Clean Air Act and the Federal Rules of Civil Procedure. Andin Spell v. McDaniel, 852 F.2d 762, 767 (4th Cir. 1988), the court rejected twenty (20) hours of work that counsel "purportedly versed in appellate procedure" claimed to have spent "reviewing the relevant procedures on this procedurally unexceptional appeal."

Plaintiff responds that "[c]ontrary to Defendant's allegation, no general legal research was conducted for this case. Moreover, the charges submitted for legal research were for time spent reviewing recent case law on issues raised during the litigation of this case." (Pl.'s Reply Br. to Def.'s Objections in Resp. to Pl.'s Itemized Billing of Attorney's Fees & Costs [hereinafter "Pl.'s Reply Br. 2], Doc. 244, at 8.)

1. "General Employment Law Issues"

Upon review of the hours Defendant has identified as excessive "research on general employment law issues," (Ex. A to Def.'s Objections, Doc. 234-2, at 21), I find that 3.9 hours were spent researching damages to prepare to make a settlement demand and later to prepare for trial; eight (8) hours were identified as reviewing "recent" caselaw on employer liability for acts outside the workplace, specific issues under the PHRA, and preparing the points for charge; and 5.7 hours were spent researching issues specific to this case. I am not convinced that any of this research was of such a general nature as to be non-compensable or that it was otherwise excessive, redundant, or unnecessary.

2. Other Research Challenged as Unreasonable

Defendant also challenges the following categories of charges as unreasonable general research: 11.6 hours of research on recent caselaw on sexual harassment; 12.9 hours on recent caselaw on age discrimination, including wilful misconduct under the ADEA; 4.6 hours on age, sex, and general "discrimination" under the PHRA; 5.8 hours on the PHRA's effect on common law claims; 9 hours on jury verdicts and jury trials in age and sex discrimination cases; 4.7 hours on recent case law about damages under Title VII; 4.1 hours on recent case law regarding damages under the ADEA; 11.8 hours on damages under the PHRA; 7.7 hours on the admissibility of handbooks after Plaintiff's termination; 0.9 hours on an employer's vicarious liability for a superior's actions; and 0.7 hours on the definition of subsequent remedial actions; and 6.3 hours on the intersection of Plaintiff's EEOC claim with the instant case, including research on the effect of notice to the EEOC, admissibility of EEOC letters, and whether Plaintiff was bound by statements made in her EEOC complaint. Though this research is somewhat general in nature, it is not so general, or so redundant, as to be non-compensable. For instance, many of these fees are for research on "recent" caselaw, something even an experienced attorney with a strong background in the field would be remiss not to do during litigation.

Defendant also challenges as unreasonable a number of fee submissions that are for relatively brief amounts of time researching discrete issues that are specific to this case: 9.2 hours researching whether Dr. Sheris, Plaintiff's doctor, can qualify as an expert; 7.5 hours spent responding to Defendant's brief in opposition to Plaintiff's motion to compel; 6.5 hours of research regarding Plaintiff's questioning at her deposition about the attempted sexual assault she alleged and the discoverability of her rape counseling sessions; and 4.2 hours regarding the use of evidence of Laubach's conviction in the instant case. These submissions are likewise not unreasonable.

3. Exclusivity of Worker's Compensation Proceeding

Plaintiff submitted three thousand, two hundred seventy-eight dollars ($3278.00) in charges, representing 23.7 hours of research, on a single issue: whether a worker's compensation case provided an exclusive remedy, precluding a discrimination case based on the same underlying events. Defendant argues that this amount of time is excessive, particularly for experienced employment law attorneys. I agree. The amount of time spent on this single issue demonstrates that some of the entries in this category -which span a time frame between February and June of 2001, are redundant.

Eight (8) hours is a reasonable amount of time in which this issue could have been researched. As the work on this case was divided evenly between a law clerk, Robert Malzel, whose hourly rate is ninety dollars ($90) and Attorney Michael Misher, whose rate is one hundred eighty dollars ($180), with Attorney Toddy contributing less than a half hour of work, I will award half of the eight (8) compensable hours at the ninety dollar ($90) rate and half at the one hundred eighty dollar ($180) rate, for a total charge of one thousand and eighty dollars ($1080.00). The difference between requested fees and allowable fees, two thousand, one hundred ninety-eight dollars ($2198.00), will therefore be subtracted from Plaintiff's requested award.

4. Post-Trial "General Legal Research"

Defendant argues that some of the forty-eight thousand, two hundred fifteen dollars and fifty cents ($48,215.50) in legal fees that Plaintiff claims for post-trial work are unreasonable. (Def.'s Objections, Doc. 234-1, at 10; Ex. A to Def.'s Objections, Doc., 234-2, at 29-32; see also Ex. C to Supp. Pet., Doc. 231-1, at 25.) Many of Plaintiff's challenged post-trial fee submissions involve unsuccessful claims and are addressed later in this opinion. The remaining post-trial submissions that Defendant has challenged include: one hundred ninety-eight dollars ($198.00) spent securing extensions of time from the Court; and twenty-seven dollars and fifty cents ($27.50) corresponding with opposing counsel. Defendant has not demonstrated that these charges are not excessive or unnecessary.

B. Fees on Fees

Finally, Plaintiff's petition includes seven hundred ninety-five dollars ($795.00), representing 5.3 hours of research, prior to trial, regarding the recovery attorneys' fees and costs of experts. Plaintiff's petition also includes charges totaling six thousand, four hundred seventy-one dollars ($6471.00), representing 33.225 hours of work, post trial, that was spent preparing the petitions for attorneys' fees and costs. These hours were unreasonable, Defendant argues, because "[e]very attorney successfully litigating employment cases is not only familiar with the post-trial process of fees and costs submissions, but has the brief in support and requisite affidavits on disk or CD-Rom. The only unique aspect of the motion is the secretarial duty of printing out the time and costs in pursuing that particular case." (Def.'s Objections, Doc. 234-1, at 10.) Further, research on attorneys' fees and costs is "all part of establishing and maintaining credibility as an employment law attorney billing $275 per hour." (Id. at 8-9.)

Reasonable attorney's fees expended in litigating a fee petition are recoverable. See Planned Parenthood of Cent. N.J. v. Attorney Gen. of State of N.J., 297 F.3d 253, 268 (3d Cir. 2002); Pawlak ...

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