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Michael Atwell v. Spx Cooling Technologies

October 11, 2011


The opinion of the court was delivered by: (Judge Conner)


This memorandum supplements the court's June 6, 2011 Memorandum and Order (Doc. 39) which granted in part and denied in part the motion for costs, fees and sanctions (Doc. 24) filed by SPX Cooling Technologies, Inc. ("SPX"). The court has received the affidavits of SPX (Docs. 41, 44) detailing the costs and fees incurred as a result of plaintiff Michael Atwell's ("Atwell") discovery violations, as well as the objections thereto filed by counsel for Atwell. (Docs. 42, 45).

I. Background

On June 17, 2010, plaintiff Michael Atwell ("Atwell") instituted the present action against SPX alleging violations of the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. (Doc. 1). During the discovery phase of the litigation, Atwell and his counsel failed to attend six noticed depositions agreed to by both parties, canceling those depositions the day before they were scheduled to begin, and after outside counsel for SPX, Juliet Cox, Esquire ("Attorney Cox") of Kutak Rock LLP, had traveled from Kansas City, Missouri to York, Pennsylvania to attend them. In house counsel for SPX, Janel Fuhrman, Esquire, was en route to Pennsylvania to attend the depositions, but returned to Kansas City upon learning from Attorney Cox that the depositions were cancelled. (Doc. 41-2, Ex. B ¶ 4). SPX filed a motion for costs, fees and sanctions on March 8, 2011 stemming from Atwell's failure to engage in discovery and attend the six noticed depositions. (Doc. 24). The court granted SPX's motion to the extent SPX requested costs and fees, but denied the request for sanctions. (Doc. 39).

SPX claims a total of $21,324.69 in costs and fees. (Doc. 41-2 ¶ 7). The requested costs and fees are broken down into three categories: (1) $10,476 for attorney's fees for deposition preparation and traveling to York, Pennsylvania; (2) $9,219 for attorney's fees related to the motion for costs, fees and sanctions; and (3) $1,629.69 in costs. Counsel for Atwell filed objections to the attorney's fees and costs, asserting that many of the hours for which recovery is sought are excessive. (Docs. 42, 45). The matter is now ripe for disposition.

II. Discussion

SPX, as the party seeking fees, bears the burden of showing the fee request is reasonable. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The method the court uses for determining the reasonableness of a requested fee is the lodestar formula, which multiplies the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). "[R]easonable fees are to be calculated according to the prevailing market rates in the relevant community."

Blum v. Stenson, 465 U.S. 886, 895 (1984); Maldonado, 256 F.3d at 184. The court "should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Dellarciprete, 892 F.2d at 1183; Maldonado, 256 F.3d at 184. The prevailing party is also entitled to seek fees for paralegal services under the same standard. Missouri v. Jenkins, 491 U.S. 274, 285 (1989).

A. Attorney Experience and Hourly Rate

Attorney Cox is a partner at Kutak Rock LLP in the Kansas City, Missouri office. (Doc. 44-1 ¶ 2). She is a trial attorney with 17 years of experience, focusing primarily on civil litigation, including the defense of employment related claims such as the one in the instant litigation. (Id. ¶ 5b). The other attorneys providing legal services in this case are Larry D. Fields, Esquire, a partner with 20 years experience as a trial attorney, and Eric S. Johnson, Esquire, a partner with 10 years experience, also as a trial attorney. (Id. ¶ 5c, 5d). Debbie Mahan, a paralegal with 23 years experience as a litigation paralegal, provided paralegal services. (Id. ¶ 5e).

SPX seek attorney's fees in the amount of $320 per hour for work performed by Attorney Cox, $230 per hour for work performed by Attorneys Fields and Johnson, and $140 per hour for paralegal services. (See Doc. 41-1 ¶ 7 n.2). A reasonable hourly rate for attorney services "is calculated according to the prevailing market rates in the relevant community." Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001).

A recent survey of fee awards in this district reveals a lower range of hourly rates for attorneys with comparable experience. Very recently, the Honorable Sylvia Rambo of this court determined that an attorney in the field of employment litigation, with fifteen years of combined experience in human resources and litigation, a masters degree in trial advocacy, and a substantial number of jury verdicts and appellate decisions in her repertoire, was entitled to a reasonable hourly rate of $225.00. Carey v. City of Wilkes-Barre, No. 05-CV-2093, 2011 WL 1900169, at *2 (M.D. Pa. May 19, 2011). In another recent case, the court awarded an hourly rate of $300 to an attorney with over twenty years experience, noting this is the highest prevailing rate in this particular legal market. Overly v. Global Credit Collection Corp., No. 1:10-VC-2392, 2011 WL 2651807 (M.D. Pa., July 06, 2011).

After considering the skill, experience and reputation of counsel in these cases, as well as the affidavits presented by SPX, and assessing the skill and experience of defendant's counsel, the court concludes that a rate of $275.00 per hour is reasonable for Attorney Cox, $230 per hour is reasonable for Attorney Fields and $200 per hour for Attorney Johnson.

With respect to paralegal services, SPX charged $140 per hour for the services of its paralegal Debbie Mahan. The court finds that amount excessive for the Middle District of Pennsylvania. Courts in this district find paralegal fees ranging between $70 and $120 per hours to be typical. See Overly v. Global Credit & Collection Corp., Inc., Civil No. 1:10-CV-2392, 2011 WL 2651807, at *6 (M.D. Pa. July 6, 2011) (citing cases). The court concludes that an hourly rate of $120 per hour is appropriate in the instant matter given the substantial experience of Ms. Mahan.

B. Reasonableness of Costs and Fees

The court must next examine whether all the hours spent were reasonable. Attorneys billing for their time are required to record their hours with "sufficient specificity to allow the district court to determine if the hours claimed are reasonable for the work performed." Washington v. Philadelphia Court of Common Pleas, 89 F. 3d 1031 (3d Cir. Pa. 1996). Counsel should take care to note definite hours and general activities devoted to advancing the client's interest. (Id.) Yet the attorney need not document precise detail and exact minutes spent for each entry. (Id.) When the opposing party makes a specific objection, the court must exclude those entries which are redundant, excessive, or unnecessary. Interfaith Cmty. Org. v. Honeywell Int'l. Inc., 426 F. 3d 694 (3d. Cir. 2005).

1. Deposition Fees

Attorney Cox, claims $10,476 in attorney's fees for preparing for the six depositions scheduled for February 15-17, 2011 and traveling to York, Pennsylvania. (Doc. 41-1 ¶ 7). The fees can be grouped into five categories:

(1) 5.5 hours for deposition preparation by Attorney Cox;

(2) 10.4 hours to prepare exhibits for the depositions ...

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