Opinion
96-CV-0650E(Sc)
August 18, 2000
ATTORNEYS FOR THE PLAINTIFF: Christina A. Agola, Esq., 426 Franklin St., Buffalo, N.Y. 14202.
ATTORNEYS FOR THE DEFENDANT: Mary K. Roach, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Trial was had in this employment discrimination case from May 24 to June 4, 1999, after which a verdict was returned in favor of the plaintiff. Following post-trial settlement negotiations, the parties entered into a Stipulation and Order of Settlement by which it was agreed that attorney's fees would be paid in an amount not less than $35,000 and not more than $60,000. Presently before this Court is plaintiff's application for attorney's fees in the amount of $63,270. Because this Court finds plaintiff's counsel's proposed hourly rate excessive and her record-keeping inadequate, the amount awarded will be $35,282.
Plaintiff filed this action pro se February 11, 1997. In and by his Complaint, he alleged that he had been constructively discharged in November 1995 for having lodged grievances in response to bodily threats by a co-worker. According to the December 9, 1999 affidavit of plaintiff's counsel, Christina A. Agola, Esq., plaintiff hired Agola in November 1997, after which Agola proceeded to review documents, engage in settlement conferences, conduct discovery and otherwise prosecute the action. Sometime prior to trial, she and plaintiff agreed to enlist the services of local attorney Rodger P. Doyle, Jr., Esq. to serve as trial counsel. By the same token, Agola claims to have "handled this matter exclusively from November of 1997 to May of 1999, utilizing Doyle only for the purposes of assisting [her] in conducting the trial." Agola Aff., ¶ 17.
The starting point of every fee award is a calculation of the "lodestar amount," which is the number of hours reasonably expended multiplied by a reasonable hourly rate. See Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). Deducted from that figure is any compensation for what this Court regards as duplicative or unnecessary work. Similarly, the undersigned may adjust the lodestar amount according to any number of so-called equitable factors, including the time and labor required, the novelty and difficulty of the issues presented, the skill requisite to perform the legal service, the monetary amount involved, the results obtained, the ability and experience of the attorney, the attorney's customary rate for similar work, the "undesirability" of the case and awards in similar cases. See Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 97 (2d Cir. 1997).
Taking first the question of hourly rates, "prevailing parties are entitled to reasonable hourly rates which fall within the prevailing marketplace rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Myree v. Local 41, Int'l Bhd. of Elec. Workers, 847 F. Supp. 1059, 1065 (W.D.N.Y.), aff'd, 29 F.3d 620 (2d Cir. 1994); see also Blum v. Stenson, 465 U.S. 886, 895 (1984) (courts may consider the "prevailing market rates" in the relevant community to assist in the determination of an appropriate hourly rate); see generally In re Continental Illinois Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992) (district court is to "determine what the lawyer would receive if he were selling his services in the market rather than being paid by court order"). The "relevant community" for attorney's fees purposes is the district in which the Court sits — see In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987) —, in this case the Western District of New York. In this district, the billing rates for senior associates generally range between $110 and $205 per hour. See Alnutt v. Cleary, 27 F. Supp.2d 395, 399-401 (W.D.N.Y. 1998); see also McPhatter v. Cribb, No. 97-CV-0360E(F), 2000 WL 743972, at *3 (W.D.N.Y. May 25, 2000) (finding the hourly rates of $125 for a senior associate and $240 for a partner to be reasonable in the Buffalo legal market); Myree, at 1065 (seasoned litigators in an employment discrimination case compensated at $150/hour); Greenway v. Buffalo Hilton Hotel, 951 F. Supp. 1039, 1070 (W.D.N.Y. 1997) (rates of $125 for senior associate and $200 for partner deemed reasonable).
It is the applying counsel's burden to demonstrate her entitlement to fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Alnutt, at 399. In support of her requested rate of $185/hour for 342 hours she worked from November 1997 to June 1999 and Doyle worked during May and June 1999, Agola has cited a 1999 case from the District of New Jersey, which designates as acceptable hourly rates of $175, $225 and $275. See Pltf Mem. at 6 (citing Cityside Archives, Ltd. v. New York City Health and Hosp. Corp., 37 F. Supp.2d 652, 658 (D.N.J. 1999)). She makes no mention of how many years she or Doyle has practiced, her or his relative expertise with cases of this nature, why trial and non-trial and traveling time is billed at the same $185/hour rate or why New Jersey rates ought to apply to a case filed and litigated in the Western District of New York. She does, however, urge this Court's acknowledgment of the undesirability of the case and the novelty of the issues presented — to wit, "[a]t the time that Plaintiff filed his complaint with federal court, no lawyer would take the case, deeming his claims to be meritless"; and, "[t]hough the law in this area of discrimination is evolving, counsel for Plaintiff deemed his matter to constitute a novel question and necessarily dedicated more time and effort to research for precedent and related factual scenarios in support of numerous motions to dismiss." That said, Agola has proffered no factual or legal support such as affidavits from attorneys who were unwilling to take the case — or even from plaintiff himself — or case law pointing to the "novelty" of the particular employment discrimination theory propounded in this case.
An attorney's fees application must be accompanied by contemporaneous time records, which describe with specificity the work done. See Ragin v. Harry Macklowe Real Estate Co., 870 F. Supp. 510, 520 (S.D.N.Y. 1994) (citing New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983)). "The burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept, the court should not award the full amount requested." F.H. Krear Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987) (rejecting time records with two and three word descriptions for an entire day's work such as "reviewed docs." and "clients re: testimony"). Where the time records submitted do not bear sufficient indicia of contemporaneousness or are vague, overbroad or — as here — demonstrably inaccurate, it is customary in this Circuit to reduce the requested amount. See Hensley, at n. 13 (affirming a reduction of 30% for hours billed due to inexperience of attorney and failure to maintain contemporaneous records); Ragin, at 520 (reducing lodestar amount by 30% for "numerous entries which contain insufficient descriptions of the work done, a lack of contemporaneous records for a significant number of hours, duplicative billing and other errors found throughout the record").
Attached as Exhibit B to Agola's affidavit is a document entitled Billing Statement of Christina A. Agola, Esq. Such report contains sufficient errors to give rise to a substantial question as to the accuracy, necessity and contemporaneity of the claimed hours expended. A disconcerting question, for example, is posed by the entries for May 19, June 7 and June 8, 1998. The billing report's "activity" summaries for those entries indicate that Agola was reading and drafting a response to a motion to dismiss made by the defendant. However, the District Court Clerk's docket report reflects no filing of such a motion and the defendant denies that one was pending at that time. What the 8.9 hours billed on those days represents is, therefore, not discernible.
According to the Clerk's docket report, the defendant did file a memorandum of law May 19, 1998, but such clearly responds to plaintiff's April 20, 1998 motion for leave to amend and contains no reference whatsoever to a motion to dismiss.
Just before trial, the defendant filed a motion to dismiss and for sanctions. Agola maintains that she spent 4.6 hours on May 5, 1999 to "research, prepare, review, edit response to motion to dismiss and motion for sanctions." While such could conceivably be the case, given that no opposition papers were filed on plaintiff's behalf and that this is not a unique discrepancy, this Court is unwilling to give Agola the benefit of the doubt. Also, the undersigned is unwilling to grant Doyle's requested compensation for 1.5 hours spent working on those same opposition papers.
Perhaps the biggest questions raised by the billing report relate to the alleged trial hours. According to the report, Agola spent 6.1 hours May 24 preparing for trial and conferring with Doyle. She claims to have been on trial 12 hours/day on each of May 25, 26, 27, 28, June 1, 2 and 3, as well as 8 hours on June 4. Doyle's proffered billing report mirrors Agola's with respect to time allegedly spent "on trial." At the same time, this Court's records show that Court was in session 5.7 hours on May 24, 6 hours on May 25, 4 hours on May 26, 6 hours on May 27, 3 hours on May 28, 6.3 hours on June 1, 6.2 hours on June 2, 1.8 hours on June 3 and 1.2 hours on June 4. Thus, where Agola and Doyle each claims to have spent 92 hours "on trial," this Court's records show that trial was had for a total of 40.2 hours. Particularly egregious in this regard is June 3 — where the Court was in session from 10:32 a.m. to 12:14 p.m. and Agola and Doyle each claims to have been "on trial" for 12 hours — and June 4 — where the Court was in session from 10:37 a.m. to 11:38 a.m. and from 3:14 p.m. to 3:20 p.m. and Agola and Doyle each requests 8 hours' compensation for activity denoted as "on trial; await verdict; meeting with client re verdict." Finally and according to Peter W. Gallaudet, Esq., an attorney for the United States Postal Service, Agola was not even present in Court on May 28, the Friday before Memorial Day weekend. See January 6, 2000 Decl. of Peter W. Gallaudet, Esq. While the undersigned does not regard Gallaudet's statement as words from God, it is noteworthy that, by virtue of her having failed to file any reply papers in this matter, Agola has not attempted to impeach such.
All court session hours are rounded up to the nearest tenth of an hour.
Gallaudet also "recalls" that Agola was not in court during one other of the trial days. However and inasmuch as such assertion is inherently vague, it will not be credited.
Having carefully considered the proffered motion papers and documentation, the undersigned finds that Agola and Doyle are entitled to receive compensation at the rate of $130/hour and that each will only be compensated for three hours per day for out-of-court work during trial, in addition to the time when court was actually in session. Neither Agola nor Doyle will be compensated for the remaining 55.6 hours of time claimed during the trial for work outside of court simply denoted "on trial."
Agola will not be compensated for any of the 8.9 hours she claims to have spent responding to the apparently non-existent May 19, 1998 motion to dismiss and neither she nor Doyle will be compensated for any of the 6.1 hours claimed to have been spent on May 5, 1999 preparing opposition papers that were never filed with this Court. Deducting the above hours from the 342 hours requested, the adjusted lodestar variables stand at 271.4 hours multiplied by an hourly rate of $130 and the lodestar amount is $35,282. At the same time and after having reviewed the substance of this action, the undersigned is not of the opinion that the alleged undesirability of the case or the purported novelty of the issues presented merits any upward adjustment.
For the reasons stated, it is hereby ORDERED that the plaintiff's motion for attorney's fees is granted in the amount of $35,282.