Opinion
Civil Action 01-CV-6780.
August 24, 2004
MEMORANDUM AND ORDER
I. Introduction
Presently before the Court is Plaintiff Rita Shesko's Petition and Supplemental Petition for Attorney Fees and Costs pursuant to 42 U.S.C. § 2000e-5(k) and 43 P.S. § 959(d.1) (2) and § 962(c.2). Ms. Shesko, a sergeant in the City of Coatesville's Police Department, filed a Complaint on December 21, 2001, alleging that the City of Coatesville ("Defendant" or "City") violated Title VII and the PHRA by its failure to promote her to the position of lieutenant, subjecting her to a sexually hostile environment, and retaliating against her. On November 24, 2003, this Court granted Defendant's motion for summary judgment in part, thereby dismissing Plaintiff's claims of sexual harassment and retaliation. Ms. Shesko proceeded to trial on her claim for gender discrimination for failure to promote where the jury returned a verdict in her favor and awarded her $80,000.
The award consisted of $20,000 in compensatory damages, $19,000 in back pay, and $49,000 in front pay. Plaintiff's pretrial memorandum set forth damages for back pay in the amount of $25,272, front pay in the amount of $36,866, and compensatory damages up to the statutory limit.
Ms. Shesko, through her attorney, Stephen Kunkle, now asks this Court to award her $137,885.74 in attorneys' fees and expenses. Defendant raises numerous objections to the Petition for Attorney Fees and Costs. We resolve these issues below.
II. Legal Standard
Title VII and the PHRA give the court the discretion to award the prevailing party "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k); see also 43 P.S. § 959(d.1) (2) and § 962(c.2). The Supreme Court has held that "in the absence of special circumstances a district court not merely `may' but must award fees to the prevailing plaintiff."Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 761, 109 S.Ct. 2732, 2736, 105 L.Ed.2d 639 (1989) (citing Newman v. Piggie Park Enter, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)). Thus, the party seeking attorneys' fees must show that (1) she is the prevailing party; and (2) the fee requested is reasonable.
To be considered a prevailing party, one must obtain actual relief on the merits of his claim which "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). Once the plaintiff crosses this threshold, the court must determine what fee is "reasonable."Hensley v. Eckerhart, 461 U.S. 430, 433, 103 S.Ct. 1933, 1939 (1983).
In calculating an attorneys' fees award, "[t]he most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."Hensley, 461 U.S. at 433. The result of this calculation is called the lodestar. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). In determining a reasonable hourly rate, the court generally looks to the prevailing market rates in the relevant community. Id. With respect to the number of hours expended, the court should exclude hours that are excessive, redundant, or otherwise unnecessary. Id. The court may exclude from the lodestar calculation hours "spent litigating claims on which the party did not succeed and that were distinct in all respects from claims on which the party did succeed." Id. (internal quotations and citations omitted).
The party seeking attorneys' fees has the burden of producing "evidence supporting the hours worked and the rates claimed."Id. The burden then shifts to the opposing party to challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee. Id. (citing Hensley, 461 U.S. at 433). Once the adverse party raises objections to the fee request, the court possesses considerable discretion to adjust the fee award in light of those objections. Id. For instance, the court can reduce the lodestar downward if the lodestar is not reasonable in light of the results obtained. Id. This adjustment "accounts for time spent litigating wholly or partially unsuccessful claims that are related to the litigation of the successful claims."Id.
III. Application
Turning now to the fee request at hand, we find that Plaintiff is indeed a prevailing party by virtue of the verdict in her favor on her gender discrimination for the failure to promote claim. However, Defendant raises objections to both the reasonableness of Mr. Kunkle's hourly rate and the amount of time expended on Plaintiff's behalf in this litigation. We will address these objections and adjust the fees and costs accordingly.
A. Reasonableness of Hourly Rates
Mr. Kunkle has requested an hourly rate of $185.00 per hour for pre-Complaint matters and $275.00 per hour for matters relating to this litigation after the filing of the complaint. Plaintiff also seeks fees attributable to work performed by Mr. Kunkle's partner, Mr. Sennett, at a rate of $175.00 per hour, and for work performed by his paralegal, Deborah Kuebler, at a rate of $75.00 per hour. While Defendant strenuously objects to the hourly fee requested by Mr. Kunkle, Defendant apparently does not dispute the reasonableness of the rates requested for work performed by Mr. Sennett and Ms. Kuebler, therefore, we will use those rates for the lodestar calculation.
With respect to hourly rates, "the burden is on the fee applicant to provide satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)).
In support of his requested hourly rate, Mr. Kunkle submitted a declaration setting forth his work history, as well as a Philadelphia Law Firm Litigation Billing Rate Survey Report, Community Legal Services, Inc. Attorneys Fees Schedule for the years 1997 and 2001, and the affidavit of Edward J. Foley Jr., an ERISA attorney. The declaration reveals that since the time of his graduation from law school in 1982, Mr. Kunkle has concentrated in employment law cases, "with a significant emphasis on discrimination and ERISA matters." Mr. Kunkle also declares that his hourly rate ranges from nothing for pro bono matters to $350.00 for representing executives.
While we do not find the affidavit of Edward J. Foley Jr. particularly helpful, the CLS Fee Schedule, on the other hand, has been cited with approval in this Circuit and found to be a "fair reflection of the prevailing market rates in Philadelphia." Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001) (internal citations and quotations omitted). The CLS Fee Schedule clearly supports Mr. Kunkle's requested fee of $275.00 per hour. However, we are troubled by Mr. Kunkle's varying fee request. While we understand Mr. Kunkle's lower rate for pre-Complaint matters, Defendant has brought to the Court's attention Plaintiff's January 2004 settlement demand in which Mr. Kunkle sought legal fees at a rate of $250.00 per hour. Because Mr. Kunkle has not provided the Court with an explanation of his varying hourly rate, nor has he stated in his declaration his typical hourly rate for a case of this type, we will allow Mr. Kunkle to be compensated at a rate of $250.00 per hour for post Complaint matters.
Edward J. Foley, an ERISA attorney, conducted a survey of ERISA lawyers in 2001, requesting information on their experience and billing rates. Only seven attorneys, including Mr. Foley, responded to the survey.
Defendant argues that Philadelphia is not the "relevant community" because Mr. Kunkle's office is in Chester County, Philadelphia. The Third Circuit has never "authoritatively resolved the issue" of whether the relevant community is the law firm's community or whether it is the community in which the case has actually been litigated. Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1186 (3d Cir. 1995). In 1986, a court appointed task force established to resolve this issue recommended a "forum rate" rule. Id. This rule is difficult to apply where, as here, both of the communities are part of the same judicial district. However, Defendant has provided no evidence that the prevailing market rate in West Chester for an attorney practicing in federal court is any different than the market rate for a Philadelphia attorney practicing in the same court. Therefore, because this case was litigated in federal court in Philadelphia, we find that Philadelphia is the relevant community.
B. Reduction of Hours
Defendant also contests the number of hours claimed by Plaintiff's counsel. In its objections, Defendant identifies specific time entries that it contends were excessive, redundant, or related to claims for which Plaintiff was not successful, and asks this Court to exclude those hours from the lodestar. Defendant also asks this Court to reduce the lodestar by 66% to account for Plaintiff's "partial success."
1. Unsuccessful claims
As an initial matter, we note that hours spent on unsuccessful claims that are "distinct in all respects" from successful claims can be excluded from the lodestar calculation. Rode, 892 F.2d at 1183 (internal quotations and citations omitted). However, where the claims are not so distinct or where the record is such that the court is not able to identify specific hours that can be eliminated, the court may reduce the award to account for the limited success. See Hensley, 461 U.S. at 436-37.
Defendant urges the Court to exclude those hours attributable to Plaintiff's claims of sexual harassment and retaliation, in light of this Court's November 24, 2003 Order granting in part Defendant's motion for summary judgment. Defendant does not, however, discuss how the unsuccessful claims are "so distinct in every respect" from the successful claim. Despite this deficiency, we are inclined to agree that, for the most part, the factual basis for each of Plaintiff's claims was distinct. However, the time sheets submitted by Plaintiff's counsel generally do not identify the precise legal theory on which Plaintiff's attorney worked.
In this respect, Defendant simply states, "The claims for sexual harassment and retaliation are distinctly different, both factually and legally, from the success obtained. . . . The proof required for the dismissed claims was factually and legally distinct from the proof required for the failure to promote claim."
Defendant has provided a chart detailing the basis for its objections to specific billing entries. Defendant objects to several entries on the basis that they are related to the claims that we dismissed at the summary judgment stage. However, it is not obvious to the court that all of these entries were related to unsuccessful claims. Furthermore, Plaintiff kept a daily log of activities and total billing time, without specifying how much time was devoted to each particular activity.
After a close review of Defendant's objections, we can only conclude that 2.0 hours was clearly time spent on unsuccessful claims and will exclude this time from the lodestar. We recognize that much more than 2.0 hours was devoted to unsuccessful claims, and therefore, after we calculate the lodestar, we will then adjust it to account for additional time spent litigating the unsuccessful claims.
See entries 2/21/2001, 4/26/2001 and 3/1/2002. These entries specifically identify "harassment" as the subject matter of the work performed.
2. Excessive, unnecessary, or unrelated to claims
In addition to the objections based on unsuccessful claims, Defendant contends that many of the hours charged by Plaintiff's counsel are "extremely excessive," unnecessary, or unrelated to Plaintiff's claims. After a close and thorough examination of Defendant's objections, and there are many, we will overrule them with the exception of time billed in connection with a police pursuit involving Officer Pinto, time billed for counsel's personal service of subpoenas, time billed for trial preparation and attendance, and post trial billings.
We will exclude from the lodestar .8 hours that counsel billed for time spent investigating an alleged police pursuit involving Officer Pinto. We find this charge to be unrelated to Plaintiff's claims. We will also exclude 2 hours for Plaintiff's counsel's service of subpoenas. Because it is unnecessary for counsel to personally serve subpoenas, we find it unreasonable to bill a client, and hence Defendant, at the rate of $275 per hour for such a task.
See entry 3/23/01.
See entries 2/04/04, 2/05/04.
Regarding Defendant's objection to the time charged by Stephen Kunkle for trial preparation and attendance, we are inclined to agree with Defendant that this time is excessive. Mr. Kunkle billed anywhere from 10 to 21.3 hours per day for trial preparation and attendance. For any day that Mr. Kunkle billed more than 12 hours, we will reduce the hours billed to 12 hours. We think that this is a reasonable amount of time for Plaintiff's counsel to adequately prepare for and attend trial.
This will reduce Plaintiff's counsel's trial preparation and attendance hours from 75 hours to 55 hours. Defense counsel spent a total of 44 hours on trial preparation and attendance.
Plaintiff's fee petition includes 66.7 hours billed for post trial work. We find this amount of time to be excessive and will reduce the number of compensable post trial hours to 31 hours — the number of hours expended by Defense counsel for the same time period.
Turning to Defendant's remaining objections, many of Defendant's objections overstate the time billed by Plaintiff's counsel. Mr. Kunkle's time sheet reflects the total number of hours expended per day. In its objections, Defendant does not take into consideration that counsel often worked on more than one task during any given day. We therefore find Defendant's excessiveness objections to be without merit in light of all of the tasks performed on those days.
We are also unpersuaded by Defendant's argument that time spent interviewing witnesses that were not called to trial should be excluded. Meetings and interviews with potential witnesses is a necessary part of the discovery process. Defendant does not contend that these witnesses did not provide Plaintiff's counsel with relevant or helpful information. We think that Defendant makes too much of the fact that these individuals were never called as trial witnesses. We find that time spent meeting with these individuals is reasonable.
Defendant also contests billing for matters associated with the EEOC filing. Despite Defendant's acknowledgment that the filing of an EEOC Complaint is required prior to instituting litigation, Defendant asks this Court to exclude all hours preceding Plaintiff's counsel's request that the EEOC issue a Right to Sue letter. This we decline to do. First, we note that Defendant cites no authority that supports the exclusion of work performed at the administrative level, nor do we believe it could. In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), the Supreme Court held, in the context of Title VII, that attorneys' fees were available for work done at the state administrative level. Relying on Carey, other courts in this Circuit have refused to exclude fees associated with administrative proceedings at the state and federal levels. See Ballen v. Martin Chevrolet-Buick of Delaware, 1998 WL 1013874 (D.Del. 1998) (allowing recovery of attorneys' fees based on work performed at the administrative level); Carter-Herman v. City of Phila., 1997 WL 48942 (E.D.Pa. 1997) (allowing attorney compensation for time related to PHRC and EEOC hearings);Roberts v. Home Corp., 1996 WL 524088 (E.D.Pa. 1996) (awarding fees incurred during the preparation of the PHRC and EEOC Complaint). We therefore find that time related to the EEOC filing was properly submitted to the Court for compensation.
3. Paralegal hours
Defendant contends that some of the hours billed for Ms. Kuebler's paralegal work were either unnecessary or duplicative of work performed by Mr. Kunkle. First, we overrule Defendant's objection to hours billed for Ms. Kuebler's trial attendance. We do not think that one attorney and one paralegal attending trial amounts to overstaffing. We do think, however, that Ms. Kuebler's trial preparation time is either excessive or duplicative in light of the trial preparation time billed by Plaintiff's counsel. We will therefore reduce Ms. Kuebler's trial preparation and attendance hours from 53.8 hours to 39.1 hours. We will also exclude 2.0 hours for preparation of Notices of Depositions which was also billed by Mr. Kunkle and 2.0 hours for the administrative task of making copies. Lodestar calculation and reduction
Any day Ms. Kuebler billed in excess of 8 hours for trial preparation and attendance, we reduced the number of hours to 8.
See Stephen Kunkle's entry 3/31/03.
See Deborah Kuebler's entry 2/8/04.
Based on the above exclusions, we have reduced the number of hours billed by Stephen Kunkle from 441.5 to 381. We have also reduced Ms. Kuebler's hours from 130.4 to 111.7.
Plaintiff calculated Mr. Kunkle's hours to be a total of 443.5. However, the entries for 3/29/2001, 4/6/2001, 5/24/2001, 5/30/2001, 8/28/2001, and 8/31/2001 (2 hours total) are designated as "No Charge." Because Mr. Kunkle apparently did not intend to charge Plaintiff for these hours, we will not allow him to charge Defendant for these hours.
As discussed above, only one of Plaintiff's three claims survived Defendant's motion for summary judgment. It was on this one claim that Plaintiff prevailed at trial. Because much of the discovery process was devoted to all three of Plaintiff's claims, we think that a reduction of the lodestar is necessary to account for Plaintiff's limited success. We will therefore reduce the lodestar calculation for hours billed prior to our disposition of the summary judgment motion by two-thirds.
Pre-Summary Judgment Lodestar
Rate Hours Total
Mr. Kunkle PreComplaint $185 13.6 $ 2,516.00 Mr. Kunkle PostComplaint $250 183.7 $45,925.77 Mr. Sennett $175 0 $ 0 Ms. Kuebler $ 75 3.8 $ 285.00 __________ $48,726.00 $48,726.00 reduced by two-thirds = $16,242 Post Summary Judgment Lodestar
Rate Hours Total
Mr. Kunkle PostComplaint $250 183.7 $45,925.77 Mr. Sennett $175 9.7 $ 1,697.50 Ms. Kuebler $ 75 107.9 $ 8,092.50 __________ $55,715.77 Total attorney's fees = $71,957.77
C. Costs
Finally, Defendant contests a number of the expenses claimed by Plaintiff. Plaintiff submitted a claim for expenses totaling $6,493.74. For the reasons addressed above, we will deduct $40.00 paid for a copy of audio transmissions of police pursuit involving Officer Pinto. We find the remaining expenses to be reasonable and will therefore award Plaintiff $6,453.74 in costs.
Plaintiff initially submitted a claim for expenses totaling $5,867.60. Following disposition of Defendant's post trial motions, Plaintiff submitted a supplement to her fee and cost petition claiming additional expenses of $626.14.
IV. Conclusion
For the reasons stated above, we will award Plaintiff a total of $78,411.51 in costs and fees.
An appropriate order follows.