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Ricky A. Shaw v. Cumberland Truck Equipment Co

March 30, 2012


The opinion of the court was delivered by: Judge Conner


Plaintiff Ricky Shaw ("Shaw") brought this action against defendant Cumberland Truck Equipment Company ("CTE") pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12181 et seq. Presently before the court is Shaw's motion (Doc. 83) for an award of costs and attorneys' fees pursuant to Rule 54(d)(1) and (2) of the Federal Rules of Civil Procedure, and a supplement to said motion (Doc. 105). CTE contends that Shaw's motion is premature, and it opposes the amount claimed, arguing that the hours Shaw's counsel billed and the rates at which they billed were excessive, and that several expenses are not recoverable. The motion has been fully briefed and is ripe for disposition. For the following reasons, the court will grant the motion in part and deny it in part.

I. Background

Pursuant to the jury verdict of May 19, 2011, the court entered judgment in favor of Shaw (Doc. 79) on May 23, 2011. In addition, CTE filed post-verdict motions for judgment as a matter of law, for a new trial, to alter or amend the judgment, and for a stay of judgment, over which this court has retained jurisdiction. (Doc. 82). The court is disposing of these post-verdict motions by separate opinion.

Michael J. Crocenzi ("Crocenzi") from the law firm of Goldberg Katzman, P.C. and Peter J. Russo ("Russo") from the Law Offices of Peter J. Russo, P.C. represent Mr. Shaw in this case. Crocenzi has over eighteen years of experience as an attorney and concentrates his practice in employment law, including cases involving the ADA and employment discrimination. (Doc. 83 ¶ 9). Although an experienced litigator, Crocenzi sought co-counsel with additional expertise- Attorney Russo. (Doc. 96 at 7). Russo has over sixteen years of experience litigating a variety of specialties, including employment law. (Doc. 83 at 8).

This case spans a time period over two years. During the course of this case, Shaw's legal team billed a total of 520.46 hours. Specifically, Crocenzi billed 290.10 hours, and his colleagues billed the following hours: Joseph Sembrot, 3.10 hours; Jennifer Ruth, 17.50 hours; S. Baker Kensinger, 0.5 hours; and J. Ronaoldo Legaspi, 2.60 hours. Crocenzi's two paralegals collectively billed 13 hours, and two law clerks billed 21.10 hours. (Doc. 83 at 8). Russo billed 157.35 hours, and his paralegal billed 15.21 hours. (Id.) Both lead attorneys, Crocenzi and Russo, billed for their time at a rate of $310 per hour; paralegal time was billed at $95 per hour; Attorneys Ruth, Kensinger, and Legaspi billed at an hourly rate of $175; Attorney Sembrot billed at an hourly rate of $150; and both law clerks billed $60 per hour. The fee totaled $146,725.45. (Id.) In addition, Shaw requests an award of taxable costs in the amount of $3,999.23 and non-taxable costs of $18,708.03. (Id. at 10).

II. Legal Standard

In ADA cases, the court has discretion to award "a reasonable attorney's fee, including litigation expenses, and costs," to the prevailing party. 42 U.S.C. § 12205. It is initially the burden of the moving party to demonstrate the reasonableness of the fees and costs requested under a fee shifting statute. Smith v. Phila Hous.

Auth., 107 F.3d 223, 225 (3d Cir. 1997). 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). "When the applicant for a fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Delaware Valley Citizens' Council, 478 U.S. 546, 564 (1986) (internal quotation omitted). The burden then shifts to the opposing party to demonstrate the unreasonableness of the hours and rate. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The court cannot decrease the award based on factors not raised by the adverse party. Smith, 107 F.3d at 225.

III. Discussion

A. Timeliness

CTE contends that Shaw's petition for attorney's fees and costs is premature because, in light of CTE's post-trial motion, Shaw might not prevail on his ADA claim. Therefore, CTE argues, a determination should be stayed pending a final judgment on the merits.

Procedural deadlines are defined by the Federal Rules of Civil Procedure. Rule 54 expressly requires filing a motion for fees and costs no later than fourteen days after entry of judgment. Rule 54(d)(2)(B) directs in relevant part: "Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment . . . ." Congress added the "fourteen day deadline to Rule 54 in order to provide notice to the non-movant before the time to appeal expires; . . . and . . . resolve fee disputes efficiently while the services performed are freshly in mind." Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 227 (2d Cir. 2004) (citing FED. R. CIV. P. 54 Advisory Comm. notes (1993)).

In this case, the court extended the fourteen-day deadline that would apply under Rule 54. On May 31, 2011, the parties stipulated to an enlargement of time to file a motion for fees and costs (Doc. 80). On June 1, 2011, the court issued an order extending the briefing schedule for various post-trial motions, including Shaw's motion for payment of attorney's fees and costs. (Doc. 81). Accordingly, Shaw filed his motion for fees on June 17, 2011, within the stipulated deadline. (Doc. 83). Rule 54 does not contemplate that motions for fees and costs should be stayed pending final resolution of all post-trial issues. In compliance with Rule 54 and the court's order, Shaw's motion is not premature and is timely filed. The court therefore rejects CTE's argument concerning timeliness. Furthermore, the undersigned notes that the instant motion and CTE's post-trial motions are being resolved concurrently. The court will next address the substance of Shaw's motion for attorney's fees and costs.

B. Billing Rate

"[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.

1. Hourly Rates for Lead Counsel

Shaw's lead counsel, Crocenzi and Russo, each seek attorney's fees at the rate of $310.00 per hour. In support of the reasonableness of this hourly rate, Crocenzi and Russo provide affidavits highlighting their own legal experience and their qualifications. They also cite contemporary case law from the Middle District of Pennsylvania. (Doc. 96 at 7). In these cases, lower rates such as $215.00 per hour were deemed reasonable for attorneys with nine years experience, half as much experience as Attorney Crocenzi. (Id.)

A recent survey of fee awards in this district reveals a lower range of hourly rates for attorneys with comparable experience. The Honorable Sylvia Rambo of this court recently 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-2534, 2011 U.S. App. LEXIS 2473 (3d Cir. Pa., Feb. 8, 2011) (Doc. 186 at 4). 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).

In addition, the court takes note of the Wallet Declaration provided by CTE. (Doc. 92 at 9). Providing a perspective as to rates in the local market, this declaration indicates that more seasoned attorneys' fees range between $200.00 and $300.00 per hour. (Id.)

After considering the skill, experience and reputation of counsel in all of these cases, as well as the declarations and exhibits presented by the parties, and assessing the skill and experience of plaintiff's counsel, the court concludes that a rate of $275.00 per hour is reasonable for both Attorney Crocenzi and Attorney Russo.

2. Hourly Rates for S. Baker Kensinger, Esquire

During trial Attorney Kensinger researched and provided relevant case law addressing CTE's motion for directed verdict. CTE argues that Kensinger's role in this matter was insignificant and should not be compensated. (Doc. 92 at 10). Further, if he is compensated, CTE asserts that Kensinger's fee should be reduced to reflect a rate commensurate with less experience. (Id.) Shaw contends that Kensinger's research work was necessary. There is "no requirement that a lawyer must employ a paralegal to do research or draft pleadings." Lee v. Javitch, Block, and Rathbone, LLP, 568 F. Supp. 2d 870, 877 (S.D. Ohio 2008). While plaintiff's counsel have considerable discretion in using their resources, it is reasonable to bill for these research services at a lower rate. See Smith v. Roher, 954 F. Supp. 359, 366 (D.D.C. 1997). Furthermore, the court finds that hourly rates for a third year associate in this market are generally lower than $175.00 per hour. (Wallet Declaration, Ex. A ¶ 16). Accordingly, the court finds it appropriate to reduce the amounts charged at associate Kensington's hourly rate to the rate of $125.00 per hour.

3. Hourly Rate for Joseph Sembrot, Esquire

CTE objects to the employment of Attorney Sembrot for the sole purpose of reading a deposition transcript at trial, on the basis that this task could have been performed by a paralegal. (Doc. 92 at 15). Shaw argues that Sembrot's reading was a litigation tactic and that he was the best person to perform this task. The court ...

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