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Brown v. Nutrition Management Services Co.

January 26, 2009


The opinion of the court was delivered by: Norma L. Shapiro, J.


Melissa Brown filed this action against Nutrition Management Services Co. ("Nutrition Management"), New Courtland Elder Services ("New Courtland"), Scott Murray and Karen Zywalewski for sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"), sex discrimination under the Pennsylvania Human Relations Act, Pa. Stat. Ann. tit. 43, §§ 951 et seq. ("PHRA"), and unlawful interference with her rights under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et seq. ("FMLA"). Plaintiff obtained a favorable jury verdict against Nutrition Management on her FMLA claim; she did not prevail on any other claim or against any other defendant. The court entered judgment accordingly. Elliot Platt, counsel for plaintiff, filed a timely post-trial motion under Federal Rule of Civil Procedure 54(d) for an award of attorney's fees and costs. Platt filed two supplemental declarations requesting additional attorney's fees and costs; the motion now requests $184,480 in attorney's fees and $11,639.81 in costs. Plaintiff's motion will be granted in part.


Plaintiff was employed by Nutrition Management as the food service director of Plymouth House, a nursing home in Plymouth Meeting, Pennsylvania. In August 2004, plaintiff informed Nutrition Management that she was pregnant. In October 2004, Scott Murray and Karen Zywalewski, senior employees at Nutrition Management, informed plaintiff that she had been terminated. Plaintiff filed this action on grounds that her termination was unlawful. Defendants moved to dismiss the complaint. The motion was granted in part; the court found that plaintiff had failed to exhaust administrative remedies under the PHRA. The PHRA claims were dismissed with prejudice while the FMLA and Title VII claims were allowed to proceed. Order, Nov. 21, 2006 (paper no. 21). Before trial, plaintiff settled her claims against New Courtland, the owner of Plymouth House.*fn1 The court dismissed the complaint against New Courtland with prejudice. Order, Oct. 22, 2007 (paper no. 96). The case was tried before a jury, however, the court, sua sponte, ordered a new trial due to jury confusion.*fn2 Nutrition Management does not object to plaintiff's inclusion of hours expended on the first trial in her request for attorney's fees.

Following a seven-day trial, a jury found Nutrition Management had violated the FMLA and awarded plaintiff $74,000 in damages for back pay. The jury found no liability for Scott Murray or Karen Zywalewski under the FMLA and no liability for Nutrition Management under Title VII. Interrogatories to the Jury, Aug. 22, 2008 (paper no. 164). The court entered judgment accordingly. Civil Judgment, Aug. 22, 2008 (paper no. 163). Plaintiff filed a timely post-trial motion to amend the judgment to include an award of: (1) $6,655.82 in pre-judgment interest on the award of back pay; (2) $80,655.82 in liquidated damages; and (3) $115,826.40 in front pay. The court, granting the motion in part, amended the judgment to award interest and liquidated damages, but denied plaintiff's request for front pay. Plaintiff's total award was $161,331.64.


The FMLA entitles a prevailing party to "a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant." 29 U.S.C. § 2617(a)(3). The award of reasonable attorney's fees is within the discretion of the district court. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The district court retains a great deal of discretion in determining the award. Bell v. United Princeton Properties, Inc., 884 F.2d 713, 721 (3d Cir. 1989). The court may exclude hours not reasonably expended by counsel, such as hours that are excessive, redundant, or otherwise unnecessary. See Hensley, 461 U.S. at 434; Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). If only partial success has been achieved, the fee request should be reduced for claims or issues on which the party did not prevail. See Hensley, 461 U.S. at 436. This may be true even if the claims are interrelated and non-frivolous. See Rode, 892 F.2d at 1183.

In determining a reasonable fee, the calculation begins with the "lodestar:" the reasonable hourly rate multiplied by the number of hours reasonably expended. See Hensley, 461 U.S. at 433. The petitioner must submit verified itemization of the hours worked at the rates claimed. Id. at 433. The defendant, if opposing the fee award, has the burden of challenging the reasonableness of the requested fee. See Rode, 892 F.2d at 1183.

A. Reasonable Hourly Rate

Hourly rates must be "in line with those prevailing in the community for similar service by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984). See also Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). The prevailing market rate is usually deemed reasonable. See Public Interest Research Group v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). A reasonable rate is one that will attract adequate counsel but will not produce a windfall to the attorneys. Id.

The Third Circuit Court of Appeals has cited with approval the fee schedule established by Community Legal Services, Inc. ("CLS"). Maldonado v. Houstoun, 256 F.3d 181, 187-88 (3d Cir. 2001). The CLS fee schedule is well developed and a fair reflection of the prevailing market rates in Philadelphia. Id. The CLS Attorney's Fees - Schedule of Hourly Rates, effective April 1, 2006, is based on the Survey of Law Firm Economics, 2005 Edition, Metropolitan Area Report for Philadelphia, PA-NJ, conducted by Altman Weil, Inc. See Pl. Motion for Attorney Fees and Costs, Ex. A (paper no. 173). The schedule provides a range of hourly rates of $325 - $410 for attorneys with more than 25 years of experience. Id.

Elliot Platt, counsel for plaintiff, requests an hourly billing rate of $400. Platt has submitted sworn declarations stating that: (1) he has practiced law for more than 40 years; (2) he has a strong professional reputation in the legal community; and (3) an hourly billing rate of $400 is reasonable for an attorney of his degree of experience and ability. Nutrition Management "does not contest . . . that the hourly rate of Plaintiff's counsel is properly set at $400.00 per hour for purposes of establishing the lodestar amount upon which the request for fees is based . . .." Def. Resp. to Pl. Motion for Allowance of Attorney's Fees and Costs, p. 3 (paper no. 191). Platt's hourly rate of $400 is reasonable and customary for a lawyer of his skill, reputation and experience.

B. Hours Reasonably Expended

Excessive, redundant, or otherwise unnecessary hours should be excluded from the fees awarded. Hensley, 461 U.S. at 434. Where a plaintiff does not prevail on a claim which is distinct from her successful claim, the hours spent on the unsuccessful claim should not be included in the lodestar calculation. Id. at 434. However, "[i]n cases in which the plaintiff's successful and unsuccessful claims involve a common core of facts or related legal theories, or where much of counsel's time is dedicated to the litigation as a whole, it is often impossible to divide counsel's time on a precise claim-by-claim basis." Northeast Women's Center v. McMonagle, 889 F.2d 466, 476 (3d Cir. 1989). In such cases, the "lawsuit cannot be viewed as a series of discrete claims. ...

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