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Moffitt v. Tunkhannock Area School District

United States District Court, M.D. Pennsylvania

January 20, 2017

JOSEPH P. MOFFITT, Plaintiff
v.
TUNKHANNOCK AREA SCHOOL DISTRICT, Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge.

         Presently before the court is the plaintiff's, Joseph P. Moffitt's, motion for attorneys' fees and costs, (Doc. 82), with four (4) letters supplementing the motion and adding additional fees, (Docs. 105, 106, 107, 108). In addition, before the court are the parties' submissions regarding the calculation of damages for back pay. (Docs. 80, 81, 104). The plaintiff's motion and the parties' submissions follow a jury verdict entered in favor of the plaintiff on April 19, 2016. The jury in the plaintiff's case found that the defendant, Tunkhannock Area School District (“School District”), violated the plaintiff's constitutional rights under the Fourteenth Amendment of the United States Constitution, therein violating Title 42, Section 1983 of the United States Code.[1] For the reasons discussed below, the plaintiff's motion for attorneys' fees and costs is GRANTED IN PART in the amount of $79, 467.03. In addition, the plaintiff is awarded back pay in the amount of $20, 221.48 and prejudgment interest on the back pay award in the amount of $3, 443.61.

         I. BACKGROUND

         On April 19, 2016, after a two-day trial, a jury found that the defendant violated the plaintiff's due process rights under the Fourteenth Amendment when the defendant suspended the plaintiff from his elementary school principal position, without pay, on June 7, 2012. The court instructed the jury that, in awarding the plaintiff any damages, they should consider emotional and mental harm, harm to the plaintiff's reputation, and/or the penalty for the plaintiff's early withdrawal of his 403(b) retirement plan during his suspension and any associated tax. The court further instructed the jury that any damages for back pay, contractual retirement contributions, attorneys' fees, and costs of litigating the case would be determined by the court.

         The jury awarded the plaintiff $40, 000.00 and at the conclusion of trial the court ordered the parties to submit letter briefs on the computation of damages for back pay. On April 29, 2016, the plaintiff submitted a letter brief arguing that he is entitled to 116 days of back pay in the amount of $44, 014.12, inclusive of prejudgment interest. (Doc. 80). In his letter, the plaintiff also contended that he would be subject to a ten percent increased tax burden resulting from a lump sum back pay award and argued that he is entitled to an additional $4, 401.41 to “offset” this negative tax consequence, bringing the total award for back pay to $48, 415.53. On April 29, 2016, the defendant submitted a letter brief arguing that the plaintiff is only entitled to 114 days of back pay in the total amount of $19, 587.26, which included prejudgment interest but also accounted for several deductions, including federal, state, and local taxes, retirement contributions, and insurance premiums. (Docs. 81, 81-1). The defendant opposed any offset to the plaintiff for alleged, negative tax consequences.

         On May 3, 2016, the plaintiff also filed a motion for attorneys' fees, with a supporting brief filed on May 17, 2016. (Docs. 82, 83). The defendant filed a brief in opposition on May 31, 2016. (Doc. 85). On June 14, 2016, the plaintiff filed a reply brief in support of his motion for attorneys' fees. (Doc. 87). The plaintiff's motion requested a total of $1, 122.31 in costs and $96, 897.81 in attorneys' fees on behalf of the plaintiff's counsel, Andrew J. Katsock, III, and on behalf of the plaintiff's sister, Theresa Moffitt, who is a licensed attorney. Attorney Moffitt aided Attorney Katsock with the litigation.

         On October 23, 2016, November 20, 2016, December 7, 2016, and December 29, 2016, the plaintiff submitted letters to the court supplementing the motion for attorneys' fees by indicating additional fees incurred by Attorney Katsock due to his post-trial work. (Docs. 105, 106, 107, 108). These additional fees totaled $11, 427.62. According to the plaintiff's last letter to the court, (Doc. 108), the plaintiff's motion now seeks a total of $109, 447.74 in attorneys' fees and costs when adding post-trial work.

         On August 22, 2016, the court conducted a hearing regarding the issues of the plaintiff's award for back pay damages and his request for attorneys' fees. At this hearing, the parties agreed on two matters: (1) using 116 days as the appropriate amount of days used to calculate back pay at a rate of $301.95 per day; and (2) the defendant was entitled to deduct ten percent of the premium for the plaintiff's health insurance because the defendant paid that amount on behalf of the plaintiff during the suspension, an amount that would normally be deducted from the plaintiff's salary.

         At the conclusion of the hearing, the parties still did not agree on a final amount for the plaintiff's back pay. The plaintiff's calculations were based on his own knowledge, having prepared his own tax returns for many years. Meanwhile, the defendant's calculations were based upon documents provided by the defendant's business manager. (See Doc. 81). Originally, the plaintiff's calculation did not include any deductions, while the defendant's did. (See Doc. 80). The plaintiff's most recent calculations do exclude federal, state, and local income taxes, taxes paid by employees under the Federal Insurance Contributions Act, 26 U.S.C. §3101 et seq (“FICA”), and exclude the plaintiff's ten percent insurance premium. (See Doc. 104, at 3).

         The parties also did not agree on the method of calculating prejudgment interest, nor did they agree on the negative tax implications that might be suffered by the plaintiff due to a lump sum award. In addition, they disagreed substantially regarding the attorneys' fees submitted by the plaintiff for Attorney Katsock's and Attorney Moffitt's work on the case. Both Attorney Katsock and Attorney Moffitt testified in support of their fees during the hearing.

         At the end of the hearing, the parties requested more time to figure out the discrepancies in the underlying back pay calculations. The court instructed the parties to respond to the court in a week with final back pay numbers, indicating whether the parties agreed or disagreed on a final amount. The court also advised the plaintiff that he would need to submit proof in support of any negative tax implication. The court indicated it would need more than the plaintiff's own, personal calculation regarding a negative tax implication. The court also urged the parties to come to an agreement on the amount for back pay and/or attorneys' fees.

         On September 2, 2016, the plaintiff submitted a letter from Joseph Lubash, MBA, EA, a managing partner of a tax firm in Montrose, Pennsylvania. (Doc. 104). Revised back pay calculations were included with the letter. In his letter, Mr. Lubash indicated that he reviewed the plaintiff's income and tax calculations and he confirmed that those calculations were correct. Mr. Lobash's letter also stated that any changes to the “base data” provided to him would alter the actual tax paid for the year. Mr. Lobash did not indicate in his letter what base tax data was provided to him in reaching his opinion-the court assumes it included the calculations attached to the letter provided to the court. The defendant has not submitted any documents to the court since the hearing, nor has the defendant objected to the revised back pay calculation provided by the plaintiff. The defendant also has not responded to the plaintiff's letters to the court supplementing the motion for attorneys' fees and costs.

         Neither parties have indicated that an agreement has been reached with regard to the amount of back pay or attorneys' fees and costs.

         II. THE PLAINTIFF'S MOTION FOR ATTORNEYS' FEES

         The plaintiff originally requested $96, 897.81 in attorneys' fees and $1, 122.31 in costs. His request currently totals $109, 447.74. The defendant made several, initial objections to the plaintiff's request. These objections included the following: 1) the hours billed and $250.00 rate allotted for Attorney Katsock's work are unreasonable; 2) fees for Attorney Moffitt's work should not be awarded, or, in the alternative, the hours billed and $150.00 rate for her work in the case are unreasonable; 3) Attorney Katsock's and Attorney Moffitt's billing is inflated with respect to any clerical or administrative tasks they performed; 4) the motion seeks fees for tasks not related to this litigation, namely fees for administrative proceedings; and 5) the results obtained should reduce the lodestar. The court agrees with some of the defendant's objections and will adjust the award accordingly. Thus, the plaintiff's motion for attorneys' fees is granted in part. After correcting mathematical errors and making adjustments, the court finds that the plaintiff is entitled to an award for attorneys' fees and costs in the amount of $79, 467.03.

         A. Legal Standard

         The authority for awarding attorney's fees in this case is Title 42, Section 1988 of the United States Code. This provision grants district courts discretion to award “a reasonable attorney's fee” to the prevailing party “[i]n any action or proceeding to enforce [civil rights statutes, including Section 1983 actions].” 42 U.S.C. §1988(b). A party may be considered a prevailing party entitled to attorneys' fees if “they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Farrar v. Hobby, 506 U.S. 103, 109 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 754, 758 (1980) (per curiam)). Here, there is no dispute that the plaintiff is the prevailing party in this action and that the plaintiff is entitled to a reasonable award of attorneys' fees and costs. The defendant, however, challenges the reasonableness of the attorneys' fees and costs requested by the plaintiff.

         “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services.” Hensley, 461 U.S. at 433. This calculation is referred to as the “lodestar.” Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008). Initially, the party seeking attorneys' fees bears the initial burden of demonstrating the reasonableness of the fees. See Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 703 (3d Cir. 2005) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). To meet this burden, the fee petitioner “must submit evidence supporting the hours worked and the rates claimed.” Rode, 892 F.2d at 1183 (quoting Hensley, 461 U.S. at 433). Once the fee petitioner has met this initial burden, the party challenging the request bears the burden of showing that the request is unreasonable. McKenna v. City of Phila., 582 F.3d 447, 459 (3d Cir. 2009).

         Where there are objections, the court is given discretion to reduce fees, but this discretion is not unlimited. The court may not decrease an award based on factors not raised by the party opposing the request. Id. Further, if “the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requested rate downward.” Watcher v. Pottsville Area Emergency Med. Serv., Inc., 559 F.Supp.2d 516, 521 (M.D. Pa. 2008) (quoting Ridley v. Costco Wholesale Corp., 217 F. App'x 130, 139 (3d Cir. 2007)). In light of any objections, the court must provide its reasoning when awarding fees and should provide a clear and concise explanation for the award. Planned Parenthood of Cent. N.J. v. Att'y Gen. of State of N.J., 297 F.3d 253, 266 (3d Cir. 2002). “[T]he type of reduction made by a district court need not be exactly the same as that requested by the adverse party, ‘as long as the fee applicant is given sufficient notice to present his or her contentions with respect to the reduction that the district court ultimately makes.'” McKenna, 582 F.3d at 459 (quoting Bell v. United Princeton Prop., Inc., 884 F.2d 713, 722 (3d Cir. 1989)).

         B. Reasonable Hourly Rates

         The defendant disputes Attorney Katsock's and Attorney Moffitt's hourly fee. The plaintiff has submitted the billing for Attorney Katsock and Attorney Moffitt, in addition to affidavits supporting Attorney Katsock's fee. No evidence was submitted to contradict Attorney Katsock's rate. In light of this, the court is without discretion to adjust Attorney Katsock's hourly fee. No evidence was offered to support or contradict the $150.00 per hour rate for Attorney Moffitt, other than Attorney Moffitt and Attorney Katsock's own testimony that her rate is reasonable. The court finds that her hourly fee is reasonable. These rates are reasonable, however, only when used to bill for services that are not clerical or paraprofessional in nature.

         The general rule is that a reasonable hourly rate for legal services is calculated according to the prevailing market rates in the community. Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984); Student Pub. Interest Research Grp. of N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436, 1448 (3d Cir. 1988) (adopting the community market rule). This determination is a finding of fact. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). An attorney's customary billing rate is usually an appropriate place to start in determining the prevailing market rate, but this is not dispositive. Id. at 180; D'Orazio v. Washington Twp., No. 07-cv-5097-JEI-KMW, 2011 WL 6715635, at *2 (D.N.J. Oct. 18, 2011) (citation omitted). “The Court should consider the experience and skill of the prevailing party's attorney, and compare the rates to those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Watcher, 559 F.Supp.2d at 521 (citing Maldonado, 256 F.3d at 184). Affidavits of other attorneys practicing in the same market may also be offered as evidence to establish the prevailing market rate. See Ellis v. Ethicon, Inc., No. 05-726, 2010 WL 715403, at *2 (D.N.J. March 1, 2010).

         i. Attorney Katsock's Hourly Rate

         In the instant matter, the plaintiff seeks hourly fees in the amount of $250.00 for Attorney Katsock. In support of this request, Attorney Katsock submitted an affidavit outlining his professional background and his experience in employment and constitutional litigation and he testified during the August 22, 2016 hearing in support of his fees. In his affidavit, Attorney Katsock asserts that the different hourly rates requested for Attorney Moffitt and himself are reasonable and that they are significantly lower than those charged by attorneys of comparable experience and expertise in the community. The defendant opposes Attorney Katsock's rate on the grounds that he is not experienced in civil rights litigation, although the defendant submits that the rate is appropriate with respect to civil defense, personal injury, corporate, and employment litigation. The court disagrees with the defendant's position.

         Attorney Katsock maintains a private law practice and has been practicing law for 16 years. In his reply brief, the plaintiff listed eleven employment, civil rights, and constitutional cases that Attorney Katsock has litigated in this district alone. (Doc. 87, at 4-6). During the August 22, 2016 hearing, the plaintiff also submitted a declaration from Cynthia Pollick, who is an attorney practicing in this district, primarily in civil rights litigation. (Doc. 102). Ms. Pollick's declaration states that the requested hourly rate of $250.00 is reasonable because it is well under the market rate charged by attorneys in the local area. She alleges that her current hourly rate is $400.00 per hour. Ms. Pollick also attached an exhibit to her declaration containing an affidavit from defense counsel, Robin Snyder, that was provided in a different case within this district, [2] in which Attorney Snyder affirms “that a plaintiff's civil rights attorney in the Scranton legal market with approximately twenty-five years of experience, based upon [her own] experience and knowledge, typically charges $250-$300 per hour.” (Doc. 102, Ex. A ¶7). Attorney Katsock was also cross-examined by defense counsel at the August 22, 2016 hearing and affirmed his position that his fees are reasonable. Defense counsel did not present evidence of a market rate lower than the $250.00 requested on behalf of Attorney Katsock.

         The court finds that the plaintiff has sustained his burden as to Attorney Katsock's requested rate of $250.00 per hour for legal services. The plaintiff presented Attorney Katsock's affidavit and testimony attesting that the rate is significantly lower than that charged by attorneys of comparable expertise in the community. The plaintiff also represented in his reply brief that Attorney Katsock litigated several matters involving civil rights and/or constitutional actions in federal court, particularly in this district. The defendant did not produce any evidence contradicting the plaintiff's requested rate. Further, defense counsel has previously attested in another case that a reasonable rate for an experienced civil rights attorney in the Scranton legal market is $250.00 to $300.00 per hour. Thus, having met his initial burden for the reasonableness of Attorney Katsock's rate, and without credible contradictory evidence from the defendant, the district court is without discretion, nor does it believe it necessary to adjust the plaintiff's requested rate for Attorney Katsock downward. Watcher, 559 F.Supp.2d at 521. As such, the court will use the reasonable rate of $250.00 per hour in calculating Attorney Katsock's fees for legal services.

         ii. Attorney Moffitt's Hourly Rate

         The plaintiff requested hourly fees in the amount of $150.00 for his sister, Attorney Moffitt. The defendant objects to any compensation for Attorney Moffitt in this case and also argues that her rate is unreasonable. With respect to her rate, the defendant argues that the plaintiff failed to satisfy his burden in demonstrating the reasonableness of Attorney Moffitt's $150.00 hourly fee because her resume is not attached to the attorney fee petition, and that in any case, she is not experienced in civil rights litigation. The defendant further argues that Attorney Moffitt should not be billed as an attorney because Attorney Katsock stated in his affidavit that Attorney Moffitt “acted as [his] legal assistant in this matter.” (Doc. 82, ¶17). The court finds that Attorney Moffitt's hourly rate is reasonable.

         The plaintiff did not submit an affidavit from Attorney Moffitt testifying to her experience. However, during the August 22, 2016 hearing, both Attorney Katsock and Attorney Moffitt testified that they had an initial conversation on June 8, 2012, the day after the plaintiff was originally suspended, in which they agreed that Attorney Moffitt would assist in the case as an attorney and would be compensated at a rate of $150.00 per hour in the event that the plaintiff prevailed. Their agreement was never reduced to writing. Attorney Katsock also testified that Attorney Moffitt served in the capacity of an attorney and not as an administrative assistant, despite his previous description of her as a “legal assistant.”

         Attorney Moffitt then testified that she has been licensed to practice law in Pennsylvania for approximately 23 years. She testified that she currently works as a contract negotiator for Frontier Communications, although she did previously work for a private practitioner for a few years. Attorney Moffitt admitted that she had no experience in civil rights litigation. She also testified that she aided the litigation by doing research and helping with briefs. Attorney Moffitt's billing indicates that the majority of her work did, in fact, entail legal research and writing. (Doc. 82-5). The defendants cross-examined Attorney Moffitt, but, again, they did not submit any evidence to suggest another rate would be applicable, seemingly adhering to the theory that she should not be compensated at all.

         Attorney Moffitt is entitled to attorney's fees at her requested rate of $150.00 per hour. The court is satisfied that Attorney Moffitt served in her capacity as an attorney and not as a legal assistant in this matter. Attorney Moffitt has substantial legal experience and has contributed work product to this litigation as indicated by the billing submitted to the court. Although she has not been practicing in the field of civil rights litigation, the lower rate of $150.00 per hour reflects her level of expertise in the area, as compared to Attorney Katsock's rate of $250.00 per hour. Researching case law and preparing briefs are normal functions performed by an attorney assisting a lead attorney on a case and these tasks formed the bulk of Attorney Moffitt's contribution to the litigation. Accordingly, the court will use the reasonably proposed $150.00 rate in calculating her lodestar.

         iii. Non-Legal Tasks

         Attorney Katsock and Attorney Moffitt use one hourly rate in their billing, even though some of this time was spent on tasks that did not require the exercise of legal judgment or skill. The defendant argues that certain tasks billed were clerical in nature and are, therefore, non-billable. At the hearing, Attorney Katsock justified his billing at a single rate based on the fact that he is a solo practitioner without any assistance, either secretarial or paralegal assistance. The court agrees that using an attorney's full hourly rate for every task despite the level of skill required is improper, but does not agree that all of the time the defendant disputes is non-billable.

         The Third Circuit Court of Appeals has “cautioned on a number of occasions that when a lawyer spends time on tasks that are easily delegable to non-professional assistance, legal service rates are not applicable.” Planned Parenthood of Cent. N.J., 297 F.3d at 266 (quoting Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995)). “The fact that private lawyers may perform tasks other than legal services for their clients, with their consent and approval, does not justify foisting off such expenses on an adversary under the guise of reimbursable legal fees.” Halderman, 49 F.3d at 942. Thus, reducing the rate for tasks requiring less skill is proper. See, e.g., McKenna, 582 F.3d at 456-57; Loughner, 260 F.3d at 180.

         Contrary to the defendant's suggestion, however, the work performed on these task may be recoverable dependant on the relevant market. See McKenna, 582 F.3d at 457 (affirming the district court's decision to reduce, but not eliminate, the rate for clerical tasks). For example, paralegal work is clearly recoverable based on the market rates for such services or at cost, which is wholly dependant on the relevant market. Missouri v. Jenkins ex rel Agyei, 491 U.S. 274, 285 (1989). In addition, “[i]t is appropriate to distinguish between legal work, in the strictest sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers . . . . Such non-legal work may command a lesser rate.” Id. at 288 n. 10 (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974)). However, again, “[i]ts dollar value is not enhanced just because a lawyer [performs these tasks].” Id.

         The relevant legal market in this case is the Scranton/Wilkes-Barre Market. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 3:07cv85, 2014 WL 1321116, at *5-6 (M.D. Pa. March 31, 2014) (explaining the “forum rate rule”); see also Interfaith Cmty. Org., 426 F.3d at 703-04. Purely clerical work, such as copying and filing, is non-billable and is usually absorbed in the attorney's fee as overhead, which is true in this area and throughout Pennsylvania. See Poff v. Prime Care Med., Inc., No. 1:13-CV-03066, 2016 WL 3254108, at *12 (M.D. Pa. June 14, 2016) (Scranton forum); Borrell v. Bloomsburg Univ., ___ F.Supp.3d ___, 2016 WL 4988061, at *43 (M.D. Pa. Sept. 19, 2016) (Scranton forum); Evankavitch v. Green Tree Servicing, LLC, No. 3:12cv2564, 2014 WL 4437645, at *3 (M.D. Pa. Sept. 9, 2010) (Scranton forum); Walker v. Gruver, Civ. Action Nos. 1:11-CV-1223, 1:11-CV-1224, 2013 WL 5947623, at *14 (M.D. Pa. Nov. 5, 2013) (Harrisburg forum); Sheffer v. Experian Info. Solutions, Inc., 290 F.Supp.2d 538, 549 (E.D. Pa. 2003) (Philadelphia forum); Doe v. Ward, 282 F.Supp.2d 323, 334 (W.D. Pa. 2003) (Pittsburgh forum). In comparison, paralegal work is billable. See, e.g., United States ex rel. Sharon McKinney v. DHS Techs., LLC, No. 3:11-CV-146, 2015 WL 11675668, at *10 (M.D. Pa. Oct. 27, 2015). Recent awards for paralegal fees in this district have ranged from $95.00 to $170.00 per hour. See Arlington Indus., Inc. v. Bridgeport Fittings, Inc., No. 3:02-CV-0134, 2016 WL 3522964, at *3 (M.D. Pa. June 28, 2016) (awarding $170/hr); id. (awarding $110/hr); Evankavitch, 2014 WL 4437645, at *4 (awarding $95/hr).

         The court has reviewed the disputed entries in Attorney Katsock's billing and finds that the following entries are for clerical and paralegal/paraprofessional work and should be treated accordingly:

1. Filing of documents with Clerk of Court: 6/6/13, 9/2/13, 9/13/13, 9/16/13, 12/10/13, 1/16/14, 3/23/14, 9/14/14, 10/29/14, 11/21/14, 3/4/16, 3/13/16, 4/1/16, 4/13/16, 4/14/16, 5/17/16, 6/14/16, two (2) entries on 7/15/16, 8/9/16, 9/1/16, 10/23/16, 11/20/16, 12/7/16
2. Preparing waivers and certificates of service: 6/18/13, 9/2/13, 9/5/13, 9/12/13, 11/9/13, 12/10/13, 1/15/14, 3/22/14, 4/29/14, 6/9/14, 6/19/14, 7/21/14, 9/13/14, 10/27/14, 10/29/14, 11/19/14, 11/21/14, 3/1/16, 3/12/16, 4/1/16, 5/17/16, 7/15/16, 8/9/16

         Filing documents, whether in person or electronically, requires no legal skill and is a purely clerical or administrative task. See McKenna, 582 F.3d at 457 (describing clerical work to include faxing, emailing, filing, scanning, assembling, and conforming). As such, it is non-billable and is absorbed in the attorney's fee. See Evankavitch, 2014 WL 4437645, at *3. Therefore, these tasks must be eliminated from the final lodestar altogether.

         Document preparation, however, does not clearly fall within the realm of clerical work-even for a simple document such as a certificate of service. See Jenkins, 491 U.S. at 288 n. 10 (listing “document production” as a compensable task performed by a paralegal). At the hearing, Attorney Katsock argued that this task has a legal component because service is required by law and the rules. Instead, the court finds that this task falls within the realm between legal and non-legal work that may be performed by an attorney or a paralegal. Certainly, if an attorney prepared the entire document, including the certificate of service, and simply billed for the preparation of the document without breaking down the components of the document there would be no dispute that the billing (at the attorney's rate) would be appropriate. Thus, there is an artificial line drawn between legal and clerical work just because the attorney decided to provide exacting detail regarding his time spent preparing a document, especially where, as here, the attorney is a solo practitioner without legal assistance.

         Although the defendant argues that such work is entirely clerical, the court is not convinced that this is the case and instead finds that this work falls somewhere in between the legal and clerical divide. While the court does not seek to punish the Attorney for providing a detailed account of his time, the court does find that billing at Attorney Katsock's sole rate for this task is inappropriate. The dollar value for these services should not be enhanced just because a lawyer performed the task. Jenkins, 491 U.S. at 288 n. 10. Instead the preparation of these simple documents are more appropriately billed at the rate of a paralegal, a paraprofessional whose traditional role crosses between clerical and legal frequently. In this market, paralegal pay varies substantially and neither parties provided evidence of what rate might apply to tasks assigned to paraprofessionals. The court finds the lower rate of $95.00 per hour appropriate in light of cases cited in this forum and in light of the hourly rates for Attorney Katsock ($250/hr) and his less experienced counterpart in this matter, Attorney Moffitt ($150/hr).[3]

         In addition to the above compensation for Attorney Katsock, the defendant objects to any compensation for Attorney Moffitt for her hand delivery of exhibits to court prior to trial. Like the filing of documents, this task is purely clerical and administrative, requiring no legal skill. Thus, this task should also be eliminated entirely from the billing as a cost absorbed in the attorney's overhead.

         C. Hours Reasonably Expended

         Based upon the defendant's objections, the court must next “determine whether the number of hours spent on the litigation was reasonable.” Watcher, 559 F.Supp.2d at 522. The court should review the time charged, decide whether the hours entered for certain tasks are reasonable, and exclude those that are “excessive, redundant, or otherwise unnecessary.” Id. at 522-23 (quoting Hensley, 461 U.S. at 434). “Hours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434 (citation omitted). On numerous occasions, the defendant argues that certain entries are excessive. The court agrees with the defendant in part. In addition, the court notes that the hours provided by the plaintiff in his motion are mathematically incorrect.

         i. Mathematical Corrections for Duplicative Billings

         The plaintiff originally requested $96, 897.81 in attorneys' fees and $1, 122.31 in costs, stating that he seeks compensation for 285.69 hours of work performed by Attorney Katsock and 136.5 hours of work performed by Attorney Moffitt. His request currently totals $109, 447.74 when taking into account post-trial work. A review of the billing provided exposes, however, that his current request is ...


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