Greenbaum v. Handelsbanken

998 F. Supp. 301, 1998 U.S. Dist. LEXIS 2608, 75 Empl. Prac. Dec. (CCH) 45,941, 79 Fair Empl. Prac. Cas. (BNA) 635

• Court: District Court, S.D. New York
• Decided: March 6, 1998
• Docket: No. 95 Civ. 3850(SS)
• Status: Published

Opinion

OPINION AND ORDER

SOTOMAYOR, Judge.

Plaintiff Victoria Greenbaum moves for an award of attorneys’ fees and costs totaling $597,009.38, following a jury verdict in her favor in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), New York Exec.Law § 296, and New York City Administrative Code § 8-502(a)(f). For the reasons discussed below and in attached Tables 1 and 2, plaintiff is awarded $336,778.88.

BACKGROUND

Plaintiff brought this action against her former employer, defendant Svenska Handelsbanken, New York, claiming that defendant violated her rights under Title VII and the equivalent provisions of the New York Human Rights Law and New York City Administrative Code. Plaintiff alleged that she was denied promotions and other benefits, and was ultimately terminated from her position, because of her gender and her age. She also claimed that she was subject to a hostile work environment, and that she was retaliated against for filing a complaint with the New York State Division of Human Rights.

The action was tried before a jury from April 28 to May 12, 1997, and on May 16, 1997, the jury rendered a verdict in favor of plaintiff on her claims of gender discrimination and retaliation, but against plaintiff on her claims of sexual harassment and age discrimination. The jury awarded $320,000 in back pay and $1,250,000 in punitive damages. This award was affirmed by this Court after consideration of post-trial motions regarding the appropriate standard of proof for the punitive damage claim, the applicability of a punitive damages cap under Title VII, and the inclusion of prejudgment interest in the jury award. See Greenbaum v. Svenska Handelsbanken, N.Y., 979 F.Supp. 973 (S.D.N.Y.1997).¹

DISCUSSION

I. Applicable Law

A prevailing plaintiff in a Title VII action may collect attorneys’ fees from a defendant under Title VII, which permits a court “in its discretion; [to] allow the prevailing party ... a reasonable attorney’s fee ... as part of the costs” of the action. 42 U.S.C. § 2000e-5(k). The district court is afforded broad discretion in assessing a reasonable fee award based on the circumstances of the case. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983).

In determining a reasonable attorneys’ fee, a lodestar amount is calculated from the product of a reasonable hourly rate and the number of hours reasonably expended by each attorney. See Hensley, 461 U.S. at 437; see Luciano v. Olsten Corp., 925 F.Supp. 956, 965-66 (E.D.N.Y.1996), aff'd, 109 F.3d 111 (2d Cir.1997). The hourly rate should be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). In calculating the number of hours reasonably expended, a court should not reimburse “excessive, redundant or otherwise unnecessary” hours, as well as hours dedicated to severable unsuccessful claims. Hensley, 461 U.S. at 434-35, 103 S.Ct. at 1939-40. Fees may be awarded for unsuccessful claims only when they are “inextricably intertwined” and “involve a common core of facts or are based on related legal theories.” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir.1996).

Once calculated, the lodestar amount may be modified based on equitable “considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’ ” Hensley, 461 U.S. at 434 (noting that most “factors usually are subsumed within" the initial calculation of hours reasonably expended at a reasonable hourly rate.”)'. The lodestar figure is presumed, however, to represent a reasonable fee. See Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir.1997).

II. Determination of Lodestar

Plaintiff seeks $553,284.75 in attorneys’ fees and $43,724.63 in costs.² Specifically, plaintiff requests compensation for: 1006.8 hours for lead counsel Robert Sapir (of Cooper, Sapir & Cohen) at $250/hr;- 617.8 hours for Sapir &■ Frumkin partner Donald Sapir (Robert Sapir’s brother) at $325/hr; 11.2 hours for partner David Cohen at $300/ hr; 21.1 hours for partner William Frumkin at $250/hr; 16.3 hours for second-year associate Eliot Bernak at $150/hr; 37.4 hours for mid-level associate Louis Santangelo at $175/ hr; 240.3 hours for partner Robert McGovern at $225/hr; and 63.1 hours for first-year associate Steven Shapiro at $125/hr. PI. Reply Memo, at 56-57.

A. Billing Rates

Plaintiff claims $325/hr as a reasonable billing rate for co-counsel Donald Sapir. While the Court recognizes Mr. Sapir’s experience in the field of employment and civil rights litigation, plaintiffs claim that this rate is in line with those prevailing in the community is not borne out by the caselaw or this Court’s own experience. In fact, Mr. Sapir’s normal billing rates range from $250 to $325/hr. Review of recent attorneys’ fee awards in the Southern District of New York reveals a preponderance of awards at $250/hr for seasoned civil rights litigators. See, e.g, Shea v. Icelandair, 1996 WL 656446 (S.D.N.Y.1996) ($250/hr to “highly experienced litigators in employment law”); Stratton v. Department for the Aging for City of New York, 1996 WL 352909 (S.D.N.Y.1996) ($250/hr to a “seasoned litigator with nearly 30 years experience”); Bridges v. Eastman Kodak Co., 1996 WL 47304 (S.D.N.Y.1996) ($250/hr to “an accomplished labor lawyer, with nearly 30 years experience”). Notably, the opinions relied upon by plaintiff as awarding more than $300/hr do not so state in the text of the cited opinion, and therefore the Court has no basis upon which to evaluate the persuasive authority of these cases. See Guzman v. Bevona, 1996 WL 374144 (S.D.N.Y.1996); Harris v. Hutton, 1993 WL 541661 (S.D.N.Y.1993). The Court also notes that the rare case discussing an award of even $300/hr involves awards to unusually esteemed and experienced litigators. See, e.g., Ginsberg v. Valhalla Anesthesia Assoc., 1998 WL 19997 (S.D.N.Y.1998). In light of the recent decisions in this district and the Court’s own experience, the Court finds the hourly rate of $250/hr for Donald Sapir to be a reasonable rate for a litigator of Mr. Sapir’s experience and skill in this community..

Plaintiff claims $250/hr as a reasonable rate for lead counsel Robert Sapir. Mr. Sapir has less experience in employment litigation, a factor which appears to be accounted for in plaintiffs fee request. The Court, however, finds that a reasonable hourly fee for Robert Sapir is $200/hr. Although this rate is below Robert Sapir’s normal billing range of $245 to $275/hr, given Mr. Sapir’s relative inexperience with this type of litigation, coupled with the lack of necessity for two experienced senior attorneys to have tried this case, $200/hr is - a reasonable rate.

The remaining attorneys’ rates are discussed in Table 1. In some instances, the nature of the work performed by the attorney led to a significant departure from plaintiffs requested rate. For example, the Court finds the work of senior partner David Cohen to have been much more akin to paralegal work than that of an experienced lawyer. Accordingly, his rate was set at $50/hr.³ See Luciano v. Olsten Corp., 925 F.Supp. 956, 965-66 (E.D.N.Y.1996), aff'd, 109 F.3d 111 (2d Cir.1997) (awarding $50/hr for performance of “clerical” work by attorney).

B; ■ Adjustments to Claimed Hours

" Table 2 itemizes the adjustments to the hours that were used "in 'calculating the lodestar. Most claims for adjustment were minor and the rulings require no explanation beyond the table, but several items are discussed below.

All costs applied for in relation to the closing argument are disallowed. Defendant raised a complaint of the inappropriateness of the closing arguments in its memorandum supporting defendant’s motion for judgment as a matter of law, but did not repeat the arguments in the attorneys’ fee motions. Although the Court is not ruling on the substantive issues raised in the JMOL motion, some elements of this motion have relevance to the calculation of attorneys’ fees. Plaintiffs closing arguments were rife with impermissible references and necessitated constant interruptions with appropriate objections. The Court, sua sponte, had to give an unusually large number of corrective instructions. While the Court does not now rule on whether such lack of professionalism during the closing argument was sufficiently inappropriate as to merit overturning the jury’s award, plaintiffs behavior was sufficiently outrageous as to forfeit plaintiffs rights to any compensation for what was unnecessary and patently unreasonable behavior. In sum, all time related to the summation are disallowed, amounting to a 22.7 hour deduction from R. Sapir’s time request, 41.2 hours from D. Sapir’s time, 4.5 hours from Santangelo’s time, and 6.6 hours from Cohen’s time.

Defendant also claims that all travel time and hotel expenses should be reduced or deducted because of the distance of the Sapirs from Manhattan (Robert Sapir practices in Melville, N.Y. and Donald Sapir practices in White Plains, N.Y.). The Court will allow only the expenses incurred by lead counsel, Robert Sapir. As noted, it is questionable that two attorneys with as much experience as the Sapir brothers were required in this case. Moreover, there is no reasonable explanation, other than nepotism, for Ronald Sapir to have chosen his brother, whose office is so distant from Manhattan, when equally experienced employment discrimination lawyers are available in New York City. The Court will not reimburse for Donald Sapir’s travel and lodging fees, which the Court views as unreasonable when the lead counsel was also distant from Manhattan. Therefore, 7.5 hours of Donald Sapir’s travel time and $1,259.20 in hotel expenses are deducted from the lodestar award.

Furthermore, as long as the larger firm of Sapir & Frumkin was involved in this litigation, plaintiffs arguments that Cooper, Sapir & Cohen’s resources were limited does not persuade the Court to allow billing for inefficiencies such as basic research performed by senior partners and computer disk conversion problems. Robert Sapir claimed 33.9 hours when faced with difficulty in converting a computer file, to which Donald Sapir added an additional 18.6 hours, for a total bill of $16,597.50 for a single computer file format conversion. This task should have been delegated to a skilled secretary, and this unnecessary and excessive work by two senior partners is therefore disallowed.

Finally, although plaintiff is correct in asserting that attorneys’ fees are recoverable for time preparing fee memoranda, in Hensley, the Court warned, “[a] request for attorney’s fees should not result in a second major litigation.” 461 U.S. at 437. See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1183 (2d Cir.1996) (affirming recoverability of costs for attorneys’ fee application itself). Here, plaintiff expended 1504 hours among all attorneys up until the first fee application. This time included all discovery, every deposition, the trial itself, travel, post-trial motions, and an accounting for attorneys’ fees. In the month after judgment (between June 2 and July 11, 1997),. plaintiff expended an additional 512 hours in preparing its reply memorandum to support its fee request. This additional time was credited primarily to two highly paid attorneys, McGovern (requesting $225/hr) and Donald Sapir (requesting $325/hr), who, combined, billed 440 hours in the month post-judgment. Between the filing of the first fee application on June 2, and the filing of plaintiffs reply memorandum on July 11, the requested fee award rose from $491,453.63 to $622,769.63. While fee application expenses have been allowed in other eases at up to 25% of the total case expense (as here), the Court finds that plaintiffs counsel expended an excessive amount of time preparing the fee application. See Davis v. City of New Rochelle, 156 F.R.D. 549 (S.D.N.Y.1994) (reviewing proportion of application fees to total fees allowed in litigation in S.D.N.Y.). The Court recognizes that the fee claimed will be reduced by the Court's adjustment of McGovern’s and the Sapirs’ billing rates. However,'a further reduction of time is mandated for the excessive time expenditures. Accordingly, the Court awards half of the time requested by McGovern, which brings the hours expended post-judgment down to a . more reasonable yet still generous amount.

C. Adjustments to Claimed Costs"

The defendant’s challenges, and the final adjustments, to the costs allowed are set forth in Table 2. Of note is the reduction for excessive fax and photocopying charges. Plaintiff claims regularly to charge $2.50 per page for a local fax call, and has claimed a single 751-page transmission from White Plains to Manhattan in an amount of $1,877.50. It is an unacceptable and unreasonable billing practice to ignore the many more efficient means of immediate delivery of a document such a short distance.⁴ See Ginsberg, 1998 WL 19997, *4 (disallowing all local fax charges). Further, plaintiff claims $0.25 per page for photocopying within the firms’ offices. However, plaintiff also submits receipts from professional photocopying services billing ■ $0.05 per page. Because more economically efficient means were clearly available to plaintiff, all faxes are compensated at $1.00 per page and copies at $0.05 per page.

D. Lodestar Total

Based on the previous analysis, the lodestar is calculated as follows: 913.9 hours for Robert Sapir at $200/hr; 534.0 hours for Donald Sapir at $250/hr; 4.6 hours for David Cohen at $50/hr; 10.8 hours for partner William Frumkin at $200/hr; 16.3 hours for Eliot Bernak at $100/hr; 21.3 hours for Louis Santangelo at $175/hr; 120.2 hours for Robert McGovern at $200/hr; and 58.1 hours for Steven Shapiro at $100/hr. After plaintiffs voluntary 5% deduction (which the Court accepts as an appropriate reduction for many of the defendant’s miscellaneous challenges to the fee and cost claims), the fee element of the lodestar totals $336,183.63. Costs after adjustments total $38,015.13.

III. Modification to Lodestar

A. Fee Enhancement

Plaintiff suggests that the “excellent result” of this litigation merits an upward departure of the lodestar amount, while defendant claims that not only is a departure not merited,- but such a departure is no longer allowable by law. It is the practice of courts in awarding attorneys’ fees to subsume all factors into the lodestar calculation, which the Court has done in its lodestar calculation here. See Loper v. New York City Police Dep’t, 853 F.Supp. 716, 722 (S.D.N.Y.1994) (citing Dague v. City of Burlington, 935 F.2d 1343, 1359 (2d Cir.1991)). The parties’ arguments on whether enhancement for contingency fee cases are still available through state law channels, after the Supreme Court’s explicit disallowance of contingency fee- enhancements to lodestar figures in City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 2643, 120 L.Ed.2d 449 (1992), is not reached today. -Fee enhancement is awarded only in exceptional cases, and. is done so in light of the difficulty of the case or the excellence of the result achieved. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; Luciano, 925 F.Supp. at 963. While plaintiff was well rewarded on two of her claims, an overall fee enhancement is not merited. Because only two of the four claims asserted were successful, the Court believes the plaintiff to be well and fully compensated by the amount it awards today.

B. Fee Reduction for Lost Claims

As noted above, fees may not be paid for severable claims, unless the claims are “inextricably intertwined” and “involve a common-core of facts or are based on related legal theories.” See Reed, 95 F.3d at 1183 (iquoting Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249, 1259 (2d Cir.1987)) (alteration omitted). Here, plaintiff prevailed on her sex discrimination and retaliation claims, but failed on her harassment and age discrimination claims. The Court, however, recognizes the commonality of the age and sex discrimination claims, and explicitly finds that the work and preparation related to the harassment and age claims did not add appreciably to the success of the victorious claims. Most elements of the unsuccessful claims coincided with the other aspects of the case, such as in discovery and in the presentation of evidence at trial. Therefore, even though plaintiff prevailed on only two of the four brought, the Court does not deduct half of the fee award. Rather, because of the noted substantial commonalties, the Court reduces the lodestar only by 10%.

CONCLUSION

For the reasons discussed above and on Tables 1 and 2, plaintiff is awarded $336,-778.88 in attorneys’ fees and costs.

SO ORDERED.

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1 . Also currently pending before the Court is a motion for judgment as a matter of law.

2 . See Table 1 for details.

3 . "Prep, of exhibits for trial” (April 27, 1997), and “Review of transcripts in preparation of trial” (May 11, 1997), PI. Fee Aff. Exh. 6. •

4 . For example, hand delivery by a car service would have undoubtedly been substantially cheaper than the $1,871.50 claimed.