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Taormina v. Heritage Environmental Services, Inc.

United States District Court, W.D. Pennsylvania

September 5, 2017

HERITAGE ENVIRONMENTAL SERVICES, INC. trading and doing business as SOLID OAK, Defendant.



         Presently before the Court is a Motion for an Award of Attorney's Fees, Costs and Expenses filed Plaintiff David Taormina ("Plaintiff). ECF No. 36. Plaintiff requests $18, 950.00 in attorney's fees, $1080.00 in paralegal time, and $4433.06 in costs and expenses for a total of $24, 463.00. Id. at 15. The Motion follows Plaintiffs acceptance of an Offer of Judgment made on June 27, 2017, by Defendant Heritage Environmental Services, Inc. ("Defendant") pursuant to Federal Rule of Civil Procedure 68.[1] ECF No. 29. The judgment, in the amount of $6500.00, served to resolve Plaintiffs discrimination claims brought against Defendant under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621, et. seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951, et seq. ECF No. 25.


         It is undisputed that, as the prevailing party, a plaintiff may recover attorney's fees and costs from an employer who has violated either the ADEA or the PHRA. Watcher v. Pottsville Are Emergency Med. Serv.. 559 F.Supp.2d 516, 520-21 (M.D. Pa. 2008). Although awarding attorney's fees to the prevailing party under the PHRA is discretionary, under the ADEA, which has incorporated Section 16(b) of the Fair Labor Standards Act of 1938, a court "shall" allow a reasonable attorney's fee to be paid by the defendant, and costs of the action in addition to any judgment awarded to the plaintiff or plaintiffs. Id. citing 29 U.S.C. § 216(b); 29 U.S.C. § 626(b). See Petrunich v. Sun Bldg. Sys., Inc., 625 F.Supp.2d 199, 204 (M.D. Pa. 2008), citing 43 Pa. Stat. Ann. § 962(c.2) ("[a]n award of attorney fees and costs under the PHRA is discretionary"). Moreover, it is within this Court's discretion "to determine the reasonableness of the award." Brusstar v. Se. Pa. Transp. Auth., No. 85-3773, 1988 WL 137319, at *1 (E.D. Pa. Dec. 21, 1988).


         Defendant in this case does not dispute that the ADEA and the PHRA provide for the recovery of attorney's fees or that Plaintiff is the prevailing party in this matter. Nor can it. See Delta Air Lines, Inc. v. August 450 U.S. 346, 363 (1981) (Powell, J., concurring) ("[a] Rule 68 offer of judgment is a proposal of settlement that, by definition, stipulates that the plaintiff shall be treated as the prevailing party") (internal citations omitted); Albertson v. Winner Auto., No. 01-116, 2004 WL 2435290, at *5 (D. Del. Oct. 27, 2004) ("[p]laintiff is clearly the "prevailing party" by virtue of his acceptance of Winner's Offer of Judgment"). Nor does Defendant dispute Plaintiffs lodestar calculations or the hourly rates charged by Plaintiffs counsel. Defendant nevertheless argues that Plaintiffs Motion should be denied because: 1) the Offer of Judgment accepted by Plaintiff was inclusive of attorney's fees, costs and expenses; 2) Plaintiff is nevertheless liable for any fees and costs incurred after the June 6, 2017 unaccepted Offer of Judgment was made because the accepted offer was not more favorable; and 3) the attorney's fees, costs and expenses claimed by Plaintiff are unreasonable in that: a) the Offer of Judgment accepted by Plaintiff was $6500.00 after making a demand of $175, 000.00; b) Plaintiffs counsel's time sheets show "demonstrable inflations" of time spent; c) travel costs are not recoverable where the suit was filed 315 miles from counsel's location; and d) clerical tasks performed by paralegals are not to be billed at a paralegal rate. The Court will address each argument seriatim.

         A. Interpretation of the Offer of Judgment

         The Offer of Judgment that Plaintiff accepted in this case provides that:

Pursuant to Rule 68 of the federal Rules of Civil Procedure, Defendant Heritage Environmental Services, LLC ("Heritage"), by and through its counsel, Kevin L. Colosimo and Daniel P. Craig of Frost Brown Todd LLC, hereby renews its offer to allow Judgment to be entered against it in this action in the amount of $6, 500.00 including all of Plaintiff s claims for relief. This offer of judgment is made for the purposes specified in Federal Rule of Civil Procedure 68, and is not to be construed as either an admission that Heritage is liable in this action, or that Plaintiff has suffered any damage. This Offer of Judgment shall not be filed with the Court unless (a) accepted or (b) in a proceeding to determine costs.

ECF No. 29-2 at 2. Notably absent from the offer is any reference to attorney's fees or costs which precludes a finding that fees and costs were included in the offer. As succinctly stated by the United States District Court for the District of New Jersey:

When a parties' agreement is silent as to whether the prevailing party may receive attorney's fees and costs or whether the prevailing party has waived that possibility, the Third Circuit favors a presumption on behalf of the prevailing party's entitlement to fees and costs, especially in the context of civil rights litigation. See El Club Del Barrio v. United Cmty. Corp., 735 F.2d 98, 100 (3d Cir. 1984) ("a prevailing party should ordinarily recover an attorney's fee unless special circumstances render an award unjust") (citations omitted); see also Torres v. Metropolitan Life Ins. Co., 189 F.3d 331, 334 (3d Cir. 1999) (reaffirming El Club Del Barrio's acknowledgment of the Supreme Court's determination that prevailing civil rights plaintiffs are presumptively entitled to recover attorney's fees).
Beginning with El Club Del Barrio, the Third Circuit has repeatedly held that only an express and clear waiver will preclude the plaintiffs' possibility of recovering statutorily authorized attorney's fees and costs, and therefore, the Circuit Court rejected the "silence equals waiver" rule and the relevancy of "extrinsic evidence such as the course of negotiations." 735 F.2d 98 at 100; see also Torres, 189 F.3d 331 at 333 ("If the parties to a settlement agreement wish to extinguish the prevailing party's claim for attorney's fees, they must do so specifically and expressly in the terms of the agreement."). Accordingly, anything less than a precise, unequivocal statement from the opposing party refusing to pay any attorney's fees and costs will not suffice to waive a statutory right to such fees and costs. "Therefore, where a defendant seeks to settle its total liability on a claim, it shall be incumbent upon the defendant to secure an express waiver of attorney's fees. Silence will not suffice." Ashley v. Atl. Richfield Co., 794 F.2d 128, 138-139 (3d Cir. 1986).

Lazarska v. Cty. of Union, No. 04-02602, 2006 WL 2264455, at *3 (D.N.J. Aug. 8, 2006). Other courts, including the United States Court of Appeals for the Third Circuit, are in agreement. See Lima v. Newark Police Dep't, 658 F.3d 324, 331 (3d Cir. 2011) ("[w]hen ... the offer of judgment is silent as to fees and costs, they must be fixed by the court after the offer of judgment is accepted"); Torres v. Metropolitan Life Ins. Co., 189 F.3d 331, 333-35 (3d Cir. 1999) (finding that disclaimer providing that "Plaintiff specifically releases all claims, charges, or demands asserted or assertable in the ending Lawsuit, " did not release defendants from liability for attorney's fees and costs because it did not specifically address and waive the possibility of awarding such fees and costs); Barton v. Mid-Atlantic Flooring Ventures Inc., No. 13-4592, 2015 WL 4914441, at * 5 (D.N.J. Aug. 18, 2015) (holding that the plain language of an offer, which used the language "reasonable attorney's fees, " indicated that attorney's fees were not included in the offer amount); Serchen v. Cholish. No. 3:07-1011, 2010 WL 1754485, at *4 (M.D. Pa. April 28, 2010) (finding that Offer of Judgment for "$50, 000 with costs now accrued" only applied to liability and entitled the plaintiff to attorney fees and costs in addition to that amount); Sampson v. Embassy Suites. Inc.. No. 95-7794, 1998 WL 726649, at *1 (E.D. Pa. Oct. 16, 1998) ("[a] defendant may make a lump sum Rule 68 offer to settle a civil rights or other claim entitling a prevailing party to attorney's fees .... If this is a defendant's intent, however, he must clearly specify that the offer includes attorney's fees"). See also LaPierre v. City of Lawrence, 819 F.3d 558, 563 (1st Cir. 2016) (noting that an offer of judgment that is silent "as to whether it was inclusive of costs, must be read to be exclusive of costs and thus to be neither 'incomplete [n]or ambiguous' as to that issue"); Sanchez v. Prudential Pizza, Inc., 709 F.3d 689, 692-93 (7th Cir. 2013) (finding that the defendant's offer of "$30, 000 including all of Plaintiff s claims for relief, " without reference to the plaintiffs attorney fees or costs was not sufficiently specific to include attorney fees); Henderson v. Sterling, Inc., No. 97-2009, 1998 WL 171340, at *4 (4th Cir. April 14, 1998) ("[i]n the absence of either an express agreement by the parties or a specified sum in the Offer of Judgment, the amount of costs and attorneys' fees are to be determined by the district court"). Thus, contrary to Defendant's argument, merely offering judgment in the amount of $6, 500.00 "including all of Plaintiff s claims for relief, " does not suffice to expressly and/or unequivocally include attorney fees and Plaintiffs Motion is properly before the Court.

         B. The Effect of Defendant's Prior Offer of Judgment

         It is undisputed that Defendant made an Offer of Judgment on June 6, 2017, that was identical to the one and Plaintiff accepted on June 27, 2017. ECF No. 29-2 at 2; ECF No. 38-1 at 32-33. Defendant argues that because the judgment ultimately accepted and entered on the docket was not more favorable that the original Offer of Judgment made on June 6, 2017, Plaintiff is responsible for any costs incurred after that date.

         As previously discussed, Rule 68(d), which governs the payment of costs when an offer of judgment is not accepted, provides that: "[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made." Fed.R.Civ.P. 68(d). Thus, under the plain language of the statute, a plaintiff is not entitled to be reimbursed for costs he incurred after the offer of judgment was ...

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