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Witkowski v. International Brotherhood of Boilermakers

April 7, 2010

JOHN J. WITKOWSKI PLAINTIFF,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, LOCAL UNION 154, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

On January 30, 2009, a jury rendered a verdict in favor of plaintiff John J. Witkowski ("plaintiff"or "Witkowski") against defendant International Brotherhood of Boilermakers, Iron Shipbuilders, Local Union 154 ("defendant"or "Union") with respect to plaintiff's claims for retaliation in violation of the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONST. STAT. §§ 951-63. Pending before the court is a renewed motion for attorneys' fees (the "Motion") (Docket No. 154) filed by plaintiff requesting the court, pursuant to the ADEA and the PHRA, to approve attorneys' fees in the amount of $615,242.00.*fn1 After considering the Motion, the briefs, and the exhibits submitted by the parties, the court will grant the Motion in part and deny it in part. For the reasons stated below, the court will award plaintiff attorneys' fees in the aggregate amount of $548,607.45. This amount is based upon an exclusion of the hours the court concludes were not reasonably expended, a ten percent adjustment to remaining fees submitted for pretrial and trial work to reflect plaintiff's success with respect to only one of the two claims tried before the jury, and an award of one-hundred percent of the reasonable lodestar fees submitted for post-trial work,*fn2 excluding travel time to and from the court.

II. Procedural History

Witkowski tried two kinds of claims before a jury: 1) for retaliation in violation of the ADEA and the PHRA; and 2) for age discrimination in violation of the ADEA and the PHRA. On January 30, 2009, a jury returned a verdict on the retaliation claims against the Union and awarded Witkowski damages in the amount of $650,000.00. The Union prevailed on the underlying age discrimination claims. On February 13, 2009, plaintiff filed a motion for attorneys' fees, pursuant to 29 U.S.C. § 626(b), and 43 PA. CONST. STAT. § 962(c)(4). On that same date, defendant filed a post-trial motion to alter or amend judgment or, in the alternative, for a new trial and a motion to stay the proceedings. On August 18, 2009, the court denied defendant's post-trial motions.

On June 3, 2009, plaintiff filed a motion requesting postjudgment interest which was denied on August 18, 2009. On June 22, 2009, plaintiff filed a motion for the court to rule on plaintiff's motion for attorneys' fees. On August 18, 2009, the court held a hearing on plaintiff's motion for attorneys' fees. The court denied the motion without prejudice by reason of the petition for attorneys' fees being premature.

On September 1, 2009, plaintiff filed a supplemental motion for attorneys' fees for litigating post-trial matters, a second supplemental motion for attorneys' fees for litigating post-trial matters, and a motion for reconsideration of denial of the motion for the court to rule on attorneys' fees. On November 24, 2009, the court granted plaintiff's motion for reconsideration and ordered plaintiff to consolidate all requests for attorneys' fees previously filed at the aforementioned motions into one document with supporting detail attached as an exhibit. On December 15, 2009, plaintiff filed the Motion currently before the court, requesting that an award in the amount of $615,242.00 be entered in his favor for attorneys' fees relating to pretrial, trial and post-trial work. On January 28, 2010, defendant filed a response in opposition to plaintiff's Motion. (Docket No. 167.) On March 19, 2010, plaintiff filed a reply to defendant's response to plaintiff's Motion. (Docket No. 175.)

III. Background

Plaintiff argues that in order to seek attorneys' fees he need only show that he is a prevailing party and that the fees requested are reasonable. Plaintiff is seeking an award of $615,242.00, including $295,162.00 for fees submitted by Michael Lorence ("Attorney Lorence"), with respect to 994.3 hours for pretrial and trial work and 23.5 hours for post-trial work at the hourly rate of $290.00; $320,080.00 for fees submitted by the firm of Lieber & Hammer, P.C., for the work of James B. Lieber ("Attorney Lieber"), Thomas Huber ("Attorney Huber"), and Jacob Simon ("Attorney Simon") for pretrial, trial and post-trial work. Attorney Lieber's fees included charges for 495.40 hours for pretrial and trial work and 48.6 hours for post-trial work at an hourly rate of $400.00; Attorney Huber's fees included charges for 186.20 hours for pretrial and trial work and 53.90 hours for post-trial work at an hourly rate of $250.00; and Attorney Simon's fees included charges for 284.90 hours for pre-trial and trial work at an hourly rate of $150.00.

Plaintiff argues that he is a prevailing party for the purpose of receiving attorneys' fees because he succeeded on the retaliation claims under the ADEA and the PHRA. In support, plaintiff points to the jury verdict finding defendant liable for constructive discharge in retaliation for complaining about age discrimination, and the court's denial of defendant's post-trial motions. Plaintiff argues that his attorneys' fees should not be reduced because the overall relief obtained amounted to an excellent result in relation to the hours reasonably expended on the litigation of his claims. Plaintiff bolsters this argument by contending that his claims for age discrimination and retaliation are interrelated, due to the claims involving a common core of facts and similar legal theories.

With respect to meeting the burden of proving that his request for attorneys' fees is reasonable, plaintiff submitted affidavits from each of his attorneys swearing to the veracity of the hours worked and the rates charged. Plaintiff also submitted affidavits from other attorneys practicing in the area of civil rights attesting to the market rate attorneys in the area charge for similar services. Plaintiff argues that, absent any specific challenges of the content of plaintiff's evidence, a trial court may not reduce the hourly rate requested.

Although the Union does not challenge the hourly rate charged by Witkowski's attorneys, the Union opposes the Motion on several grounds. First, the Union submits that the Motion is premature because a decision by the Court of Appeals for the Third Circuit in favor of defendant would render plaintiff's petition moot. Second, the Union argues that in the event that the court decides to award attorneys' fees to plaintiff prior to the disposition of the appeal, the court should reduce the amount of the fees by fifty percent to reflect plaintiff's limited success at trial. Third, in the event that the court decides to conduct a line-by-line review of the evidence submitted by plaintiff, defendant argues that the evidence reflects duplicative work, excessive or unnecessary time spent on tasks, some of which are clerical in nature. Fourth, defendant argues that plaintiff's age claim is not so intertwined with the retaliation claim that the fees cannot be allocated between the two claims. Defendant points to Attorney Lorence's billing entry on July 31, 2008, which indicates that plaintiff was considering withdrawing his age claim in support of its argument that it should not be required to pay fees for time spent on an unsuccessful claim, especially one which plaintiff was contemplating withdrawing prior to trial. Defendant requests the court to direct plaintiff to submit a detailed description of all the fees that are attributable to plaintiff's unsuccessful discrimination claim.

The court will address each of defendant's grounds in opposition to plaintiff's Motion for attorneys' fees within the applicable framework set forth by United States Supreme Court and the Court of Appeals for the Third Circuit.

IV. Standard of Review

A district court has the discretion to award reasonable attorneys' fees to the prevailing party in an employment discrimination case. Hensley v. Eckerhart, 461 U.S. 424 (1983);Spencer v.Wal-Mart Stores, Inc., 469 F.3d 311, 318 (3d Cir. 2006), cert. denied. 551 U.S. 1141 (2007). The threshold issue is to determine whether there is a prevailing party. Hensley, 461 U.S. at 433. In situations where a plaintiff did not succeed on all claims asserted, after the court determines the plaintiff is a prevailing party, a two-pronged approach is used to determine the amount of fees to be awarded. Prong one is to calculate the lodestar and the second prong is to consider the inter-relatedness of the claims and the overall degree of success. Id.

V. Discussion

A. Plaintiff as a Prevailing Party

The United States Supreme Court has held that parties are considered prevailing parties if "they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-70 (1st Cir. 1978)). In Wheeler v. Towanda Area School District, 950 F.2d 128 (3d Cir. 1991), the United States Court of Appeals for the Third Circuit held that a party is a prevailing party if "plaintiffs achieved relief and . . . there is a causal connection between the litigation and the relief from the defendant." Id. at 131. In J.O. v. Orange Township Board of Education, 287 F.3d 267 (3d Cir. 2002),*fn3 the court of appeals stated, "[a] party need not achieve all of the relief requested nor even ultimately win the case to be eligible for a fee award." Id. at 271. Plaintiff need only achieve some of the benefit sought in a lawsuit. Id. "'[A]t a minimum . . . the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.'" Id. (quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist.,489 U.S. 782, 792 (1989)). The United States Supreme Court found that the only exception to this minimum requirement is where the party's success is "purely technical or de minimis." Texas State Teachers Ass'n 489 U.S. at 792.

The Union challenges Witkowski's Motion for attorneys' fees on the basis that the Motion is premature because a decision by the Court of Appeals for the Third Circuit in favor of the Union would eviscerate Witkowski's status as a prevailing party and render his Motion for attorneys' fees moot. This issue, however, was already considered by the court in its decision related to Witkowski's motion to reconsider. The court concluded that Witkowski was a prevailing party on the basis that he succeeded at trial on a significant issue in the litigation -- the retaliation claims under the ADEA and the PHRA -- and that he achieved some of the benefit he sought in bringing the suit. Witkowski was awarded $650,000.00 in damages and this court denied defendant's post-trial motions to alter or amend that judgment, or in the alternative, for a new trial. Therefore, at this time, while this case is on appeal, Witkowski is a prevailing party for purposes of an award of attorneys' fees and expenses, including those incurred in litigating the Union's post-trial motions. Farrar v. Hobby, 506 U.S. 103, 109 (1992) (a plaintiff is considered a prevailing party for attorney's fees purposes if he succeeds on any significant issue in litigation which achieves some of the benefit he sought in bringing the suit). West v. Keve, 721 F.2d 91, 95 n.5 (3d Cir. 1983) ("Should the district court prefer to consider a fee application during a pending appeal on the predicate case, the district court is not divested of jurisdiction to determine the application."); see Harley v. Unisys Corp. (In re Unisys Corp. Retiree Medical Benefits ERISA Litig.), MDL Docket No. 969, No. 03-3924, 2007 WL 4287393, at *2 (E.D. Pa. Dec. 4, 2007).

B. Lodestar Calculation

"The starting point for determining the amount of a reasonable fee is the lodestar, which courts determine by calculating the 'number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" McKenna v. City of Phila., 582 F.3d 447, 455 (3d Cir. 2009) (quoting Hensley, 461 U.S. at 433). The number of hours spent and the rate applicable must be reasonable. Hensley, 461 U.S. at 434; Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996); Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). "The lodestar is presumed to be the reasonable fee. . . . However, the district court has the discretion to make certain adjustments to the loadstar." Rode, 892 F.2d at 1183. "[C]courts are to exclude from the determination of the lodestar any hours not reasonably expended. Hours subject to exclusion under Hensley include those deemed 'excessive, redundant, or otherwise unnecessary."' McKenna, 582 F.3d at 455 (quoting Hensley, 461 U.S. at 434).

One factor the court may consider in reducing the award is inadequate documentation for fees. Washington, 89 F.3d at 1037. The documentation must be specific "to the extent necessary for the district court to 'to determine if the hours claimed are unreasonable for the work performed.'" Id. (quoting Rode, 892 F.2d at 1190). If a court concludes that the submissions provide sufficient information, the court may determine that the claimed fees are reasonable. Id. at 1038 (citing Rode, 892 F.2d at 1191).

The party requesting the court to award attorneys' fees has a prima facie burden with respect to the reasonableness of the hourly rate and the specificity of hours worked. Rode, 892 F.2d at 1183. To satisfy this burden, "the fee petitioner must 'submit evidence supporting the hours worked and rates claimed.'" Id. (quoting Hensley, 461 U.S. at 433). "[T]he party opposing the fee application has the burden to challenge the reasonableness of the requested fee." McKenna, 582 F.3d at 459 (citing, Rode, 892 F.2d at 1183). "A district court should not 'decrease a fee award based on factors not raised at all by the adverse party.'" Id. (quoting Bell v. United Princeton Props., Inc., 884 F.2d 713, 720 (3d Cir.1989)).

Nevertheless it should not be overlooked that the awarding of an attorney's fee is a judicial action and, regardless of the parties' indifference to it, a court need not lend its imprimatur to an inappropriate order merely because there was no objection to its entry.

Id. at 459 n.13.

1. Time Reasonably Expended

The Union admits that it is difficult to divide the hours expended on a claim-by-claim basis and proposes that this court require Witkowski's counsel to submit a detailed description of all fees that are attributable to the unsuccessful discrimination claim. The court concludes that endeavor would be impractical in light of the nature of plaintiff's claims, which have certain common facts in issue and related legal theories. The court will decline to order Witkowski to submit a claim-by-claim breakdown.

Defendant objected to the evidence plaintiff submitted for the billing entries. Plaintiff submitted affidavits from each attorney who claimed fees in the matter attesting that the hours claimed were reasonable for the work rendered. Defendant argues that some of the attorneys' time entries are unrelated to plaintiff's successful claim, duplicative, inadequately ...


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