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Defurio v. Elizabeth Forward School Dist.

June 19, 2008

PATRICIA DEFURIO, MARGARET DENNIS, ANITA KORNOSKY, MARCIA MENZIES, JEENIE NICKOLLS, CAROLE SARBER FLORENCE STAHURSKI, NANCY STANICH, DEBORAH SWIECH, KAREN WILDING, ADELE WINWOOD, BARBARA ZEHNDER, AND J.DIANE NEWMAN PLAINTIFFS,
v.
ELIZABETH FORWARD SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This action was instituted by Plaintiffs, who are thirteen employees-teachers at Defendant Elizabeth Forward School District (hereinafter "Defendant") to redress Defendant's alleged violations of the Equal Pay Act of 1962 ("EPA"), 29 U.S.C. § 206(d); the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1); Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-2(a)(1); and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 955 (2006). Specifically, Plaintiffs, all older females, alleged that Defendant pays them at rates less than it pays its younger and/or male teachers for equal work in violation of the aforementioned statutes. The case was tried to a jury before this Court over the course of eleven days, including jury deliberations, between March 24, 2008 and April 8, 2008, resulting in a verdict in favor of the Plaintiffs and against the Defendant School District in the sum of $1,226,853.

The Court held oral argument on the post trial motions filed in this matter on May 15, 2008. One of the post trial motions still pending before this Court is Plaintiffs' Motion for Attorney's Fees and Expenses [182], in which Plaintiffs request this Court to award them attorneys' fees and expenses pursuant to 29 U.S.C. § 216(b) and § 626(b). Specifically, Plaintiffs seek an award of attorney's fees in the amount of $348,136.25 and costs of $20, 277.33. Preliminarily, the Court notes that the total sum of $368,413.58 divided amongst thirteen Plaintiffs (approximately $28,339.00 each) in a case that has endured for almost three years does not appear to be excessive.

Defendant objects to the amount of attorney's fees and costs sought by Plaintiffs and argues that the total amount should be significantly reduced for the following reasons: (1) the hourly rates for Plaintiffs' attorneys are too high for Western Pennsylvania; (2) a number of individual billing entries are excessive, redundant, and/or otherwise unnecessary; (3) billing for non-attorney work performed by lawyers is unreasonable; (4) billing for redundant trial time; (5) Plaintiffs failed to explain with specificity the necessity and reasonableness of their costs; (6) Plaintiffs' motion contains improper items of fees and costs; and (7) Plaintiffs' Motion contains mistakes and/or entries not related to this case. (Docket No. 194).

II. DISCUSSION

Plaintiffs, as prevailing parties, request this Court to award attorney's fees and expenses pursuant to 29 U.S.C. § 216(b) and § 626(b). Under the ADEA, attorney's fees and costs are authorized by § 16(b) of the Fair Standard Labors Act of 1938 ("FLSA"), 29 U.S.C. § 216(b), which is incorporated by reference into the ADEA. See 29 U.S.C. § 626(b). Likewise, since the EPA is part of the FLSA, attorney's fees are also governed by the same FLSA provision. See 29 U.S.C. § 206(d). Section 216(b) 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).

Recently, Enright v. Springfield Sch. Dist., Civ. No. 04-1653, 2008 WL 696845, at *1 (E.D. Pa. Mar. 13, 2008), provided a detailed explanation of the Third Circuit standard applicable to attorney fee requests:

A prevailing party, however, is not automatically entitled to compensation for all the time its attorneys spent working the case. Interfaith Community Organization v. Honeywell, 426 F.3d 694, 711 (3d Cir. 2005). The party seeking attorneys' fees has the burden to prove that its request is reasonable; to meet this burden, that party must submit evidence to support the hours and billing rates it claims. Potence v. Hazleton Area School District, 357 F.3d 366, 374 (3d Cir. 2004), citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). A reasonable hourly rate multiplied by a reasonable number of hours expended -the lodestar- is the presumptively reasonable fee. Planned Parenthood v. Attorney General of State of New Jersey, 297 F.3d 253, 265, f.5 (3d Cir. 2002), citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) and Loughner v. University of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 1995). A reasonable rate is the prevailing market rate in the relevant community. Id. An attorney's usual billing rate is a good starting point for assessing reasonableness, though it is not dispositive. Maldonado v. Houstoun, 256 F.3d 181, 184-185 (3d Cir. 2001).

It should be noted that a court may not reduce an award sua sponte; rather it can only do so in response to specific objections made by the opposing party. Once such objections have been registered, it is then incumbent upon the court awarding fees to decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant or otherwise unnecessary. Interfaith Community, supra., citing PIRG, 51 F.3d at 1188 and Bell v. United Princeton Properties, Inc., 884 F.2d 713, 719 (3d Cir. 1989). Thus, "it is necessary that the Court go line by line through the billing records supporting the fee request." Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 362 (3d Cir. 2001).

Enright, 2008 WL 696845, at *1.

A. Plaintiffs' Attorneys' Hourly Rates

In this case, Plaintiffs request counsel fees for nine attorneys and three paralegals for a total of $348,136.25. Plaintiffs request the following hourly rates for their attorneys and paralegals: $300 for Colleen Ramage Johnston; $175 for Nikki Velisaris Lykos; $385 for John W. Carroll, Jr.; $180 for Cami L. Davis; $345 for Alan Carlos Blanco; $290 for Robert A. Galanter; $180 for Debbie M. Lestitian; $255 for Craig Hinkle; $425 for Samuel J. Cordes; $110 for Judy Houy; $105 for Lisa. M. Alfonsi; and $105 for Charles J. Vrscak. Jr. (Docket No. 182 at 8-11). In support of the hourly rates requested, Plaintiffs submitted individual affidavits, as well as several affidavits from practicing attorneys in Western Pennsylvania, stating that the rates requested for all the above attorneys and paralegals are reasonable as compared to the rates charged by attorneys and paralegals with the same, skill, experience and reputation. (Docket Nos. 183-2,183-10, 183-14, 183-15).

The Defendant, however, objects generally to said hourly rates, arguing that the rates are too high and unreasonable. The Court notes that Defendant appears to only be contesting the rates for Plaintiffs' attorneys and not the rates for the paralegals involved in this case. (Docket No. 194 at 1-2). Moreover, Defendant only references the attorney rates for Ms. Johnston, Mr. Cordes and Mr. Carroll. Id. Hence, the Court will only address the same.*fn1

A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputations. Blum v. Stanson, 465 U.S. 886, 889 n.11 (1984). "The plaintiff bears the burden of producing sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered in order to make out a prima facie case. Once the plaintiff has carried this burden, defendant may contest that prima facie case only with appropriate record evidence. In the absence of such evidence, the plaintiff must be awarded attorney's fees at her requested rate." Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997) (citing Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996)).

The Court finds that Ms. Johnston, Mr. Carroll, and Mr. Cordes are well respected and experienced trial attorneys. Specifically, Ms. Johnston is a partner at the law firm Rothman Gordon, a leading firm in Western Pennsylvania. (See Docket Nos. 183-2 and 183-14). Ms. Johnston specializes in employment matters, and has taken several successful verdicts. Ms. Johnston is a Fellow in the Academy of Trial Lawyers and serves on its Board of Govenors; a member of the Allegheny County Bar Association serving as an officer of the Labor and Employment section; and a member of the national and local chapters of the National Employment Lawyers Association (NELA), the American Bar Association, and the Pennsylvania Bar Association. Id. Likewise, Mr. Carroll is a shareholder and the head of the employment litigation section at Rothman Gordon. (Docket No. 183-4). Mr. Carroll has been practicing law for over thirty years, with an emphasis in employment law for over twenty years. Id. Mr. Carroll has successfully litigated employment cases in the federal courts of Pennsylvania, and argued cases before the United States Court of Appeals for the Third Circuit. Id. Mr. Cordes is also one of the leading employment lawyers in Western Pennsylvania, and is a partner at the law firm of Ogg, Cordes, Murphy & Ignelzi. Mr. Cordes has tried more than thirty employment and/or civil rights cases, twenty-three of them to a successful verdict, and has successfully litigated nineteen appeals in the United States Court of Appeals for the Third Circuit. (Docket Nos. 183-10 and 183-15). All three of these attorneys appear regularly in the Federal District Court in Western Pennsylvania.

Additionally, this case was complex in nature, asserted various theories, and involved thirteen Plaintiffs. The case was tried over two weeks and involved extensive pretrial preparation including motions, briefing, and argument. Moreover, the presentation at trial was efficient and more than competent.

The rates requested for the attorneys involved in this case are properly supported by affidavits and are within the range of currently prevailing market rates in this community for comparable legal services. While Defendant contends that the rates for Ms. Johnston, Mr. Cordes, and Mr. Carroll are unreasonable, Defendant fails to point out specific evidence in the record supporting its contention. Instead, Defendant merely cites to Doe v. Wood, 282 F. Supp. 2d 323, which the Court finds distinguishable from this case.

The Court finds the hourly rates requested by Ms. Johnston and Mr. Carroll to be reasonable in this case. However, the Court notes that the fees submitted by Plaintiffs for Mr. Cordes reflect billing entries for his work in this case from August 16, 2005 until December 12, 2005. Mr. Cordes informs the Court that he was "last awarded attorney fees at the rate of $350 per hour by the U.S. District Court for the Western District of Pennsylvania in Ferczak v. Woodruff Family Services, LLP, 2007 WL 951439 (W.D. Pa. 2007); and Kreger v. Baldwin Borough, 2006 WL 1158340 (W.D. Pa. 2006)." (Docket No. 183-10 at ¶ 10). Here, Plaintiffs request the rate of $425 an hour for Mr. Cordes. Plaintiffs fail to indicate to the Court when his rate changed. Interestingly, the Court understands that he "increased his rate in January 2008 to $425.00 an hour." (See Lining v. Temporary Personnel Services, Inc, et al, Civ. No. 07-1724 at Docket No. 22 at ¶ 25). The Court declines to retroactively apply Mr. Cordes' current rate to work performed in 2005 as the Court believes it is unreasonable to do so. Accordingly, this Court turns to what the Court perceives to be Mr. Cordes' rate in 2005 and awards the Plaintiffs his attorney fees at the rate of $350 an hour in this matter.

B. Excessive and Redundant Billing Hours

The Defendant next objects to a number of the individual billing entries as excessive, redundant, and/or otherwise unnecessary. (Docket No. 194 at 2). The Court, after reviewing the billing entries line by line, determines that the billing rates and time allotments were reasonable with some exceptions.

First, Defendant takes issue with "numerous instances of billing for conferences and strategy meetings between Plaintiffs' attorneys." (Docket No. 194 at 3). While the Court acknowledges the necessity of discussing legal issues and case strategies with several different counsel, the Court nevertheless finds that certain conferences were excessive. In particular, the Court finds that status conferences between counsel and his or her paralegal are not chargeable under these circumstances. Therefore, the Court deducts and/or decreases the following billing entries and corresponding billing amounts from Plaintiffs' counsel fees:

* 2/21/2006 JWC PREPARATION FOR ARGUMENT for .60 hours for a total of $231.00 is reduced to .50 hours for a total of $192.50 due to the fact that Ms. Johnston billed for .50 for the same preparation;

* 3/23/2006, 4/4/2006, and 5/11/2006 entries for CRJ for CONFERENCE WITH LMA RE: STATUS, for a total of .90 hours totaling $270.00, are not chargeable;

* 6/22/2006 and 6/23/2006 entries for LMA CONFERENCE WITH COLLEEN, for a total of .40 hours totaling $42.00, are not chargeable;

* 7/12/2006 CRJ MEETING WITH LMA:RE ORGANIZATION OF DEFENDANT'S DISCOVERY RESPONSES, for .20 hours for a total of $60.00, is not chargeable;

* 2/9/2007 CRJ MEETING WITH JWC AND CLD RE: REVIEW OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, for .60 hours for a total of $180.00 is a double entry and is not chargeable;

* 3/7/2008 NLV REVIEW PLAINTIFFS' MOTIONS IN LIMINE, for .50 hours for a total of $87.50 is not chargeable as said entry is vague. Moreover, as the documents were prepared by Plaintiffs' firm, one would think they were reviewed during the course of preparation.

Second, Defendant objects to the time and amount of fees billed by attorney Sam Cordes after he withdrew from this matter. Specifically, Mr. Cordes filed a Motion to Withdraw as Counsel on October 28, 2005, which the Court granted on October 31, 2005, thus terminating Mr. Cordes from this case. (Docket No. 4 and 5). First, Defendant argues that it should not have to pay for any legal expenses he incurred after said dates. (Docket No. 194 at 3-4). Second, Defendant contends that the work charged by Mr. Cordes is duplicative of the work performed and charged by Ms. Johnston. Id. Specifically, Defendant argues that "Mr. Cordes expended 31.00 hours in researching, preparing, reviewing, and discussing with Ms. Johnston Defendant's Motion to Dismiss. ... Ms. Johnston claims to have also expended time on researching and drafting a response to Defendant's Motion to Dismiss. (See Johnston time entries 12/07/2005 and 12/12/2005)." Id. Third, Defendant maintains that Mr. Cordes' entry on 11/28/2005 marked as "research" is not sufficiently documented and, therefore, should be deducted. Id.

Because the Court was also confused as to Mr. Cordes' continued involvement in this case after he was terminated, the Court inquired further into this matter. Ms. Johnston provided the following explanation to the Court:

You are correct that Mr. Cordes performed some work on the case after he was terminated as counsel of record. The reason was that I was in trial on another matter and I asked him to assist me by preparing the plaintiffs' response to one of the District's motions on timeliness. There was nobody available at my firm to do this for me at that time, and given I had just left Mr. Cordes' firm the prior month, it was the most efficient for him to handle the preparation of the brief in my place. His time entries for Nov-Dec. 2005 are correct.

E-mail from Colleen Ramage Johnston, Attorney, to Rebecca Magyar, Law Clerk to Judge Nora Barry Fischer (May 21, 2008, 11:04 EST)(attached as Appendix 1).

As to the hours submitted by Mr. Cordes, the Court finds said attorney's fees reasonable considering Ms. Johnston's explanation of the circumstances surrounding his involvement in the case. However, after comparing Ms. Johnston's billing entries and Mr. Cordes' billing entries, the Court agrees with Defendant that certain entries by Ms. Johnston are duplicative and unnecessary due to the fact that she admits Mr. Cordes was researching and preparing said Motion. Thus, the Court finds that the following entries are not chargeable and are therefore, to be deducted from the total amount of fees requested:

* 12/07/2005 CRJ RESEARCHED RE: DEFENDANT'S MOTION TO DISMISS, for .70 hours for a total of $210.00; and

* 12/12/2005 CRJ REVISED FINAL VERSION OF BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, for .70 hours for a total of $210.00.

In addition, the Court finds Defendant's argument as to Mr. Cordes' 3.4 hours of "research" on November 28, 2005 to be without merit as it is clear that said research dealt with the motion to dismiss he was preparing.

Third, Defendant contends that paying for Mr. Carroll's review and Ms. Johnston's review of this Court's Memorandum on Summary Judgment is duplicative. The Court agrees. Hence, Mr. Carroll's billing entry for said review on September 20, 2007 for .60 hours totaling $231.00 will be deducted from the total amount of fees submitted.

C. Non-Attorney Work Performed by Lawyers

Defendant disputes the billing rate allocated to attorney Cami L. Davis for reviewing transcripts, then attending trial and reading said transcripts into evidence, arguing that her rate should be reduced from her attorney rate of $180 an hour to that of a paralegal for $105.00 an hour, as her role was not that of counsel as she prepared and read a transcript into evidence. The Court agrees and orders that the following billing entries be billed at a rate of $105.00 an hour instead of $180.00 an hour:

* 3/31/2008 CLD REVIEW TRANSCRIPT TO READ INTO EVIDENCE, for .40 hours totaling $72.00 is reduced to .40 hours totaling $42.00;

* 4/01/2008 CLD PREPARE FOR AND ATTEND TRIAL, for 4.5 hours totaling $810.00 is reduced to 4.5 hours totaling $472.50;

* 4/02/2008 CLD ATTEND TRIAL AND READ, for 3.0 hours totaling $540.00 is reduced to 3.0 hours totaling $315.00.

D. ECF Notifications

Defendant has several objections to Plaintiffs' attorneys' billing entries pertaining to their viewing of ECF notifications received via email. (Docket No. 194 at 5). First, Defendant points out that there are approximately eighty-three ECF billing entries, fourteen of which were merely ECF error notifications. Id. Defendant contends that it should not have to pay for the viewing of said error messages. Id. The Court agrees and finds that the following entries are not properly chargeable, and therefore, Plaintiffs' request for attorneys' fees should be reduced accordingly.

* 12/22/2005 CRJ: Activity in case 2:05-cv-01227-TMH, Quality control message-No signature, for .10 hours for a total of $30.00 is not chargeable;

* 3/23/2006 CRJ: Activity in case 2:05-cv-01227-TMH, Errata, for .10 hours for a total of $30.00 is not chargeable;

* Both 3/05/2007 CRJ: RECEIVE and REVIEW Activity in case, Errata, for .10 hours each for a total of .20 hours and for a total of $60.00 is not chargeable;

* 3/6/2007 CRJ RECEIVE and REVIEW Activity in case, Errata, for .10 hours for a total of $30.00 is not chargeable;

* 3/15/2007 CRJ RECEIVE and REVIEW Activity in case, Quality Control message-Wrong event selected, for .10 hours for a ...


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