Jordan v. Cch, Inc.

230 F.Supp.2d 603

Robert G. JORDAN, Plaintiff, v. CCH, INC., Defendant.

No. CIV.A. 01-0053.

United States District Court, E.D. Pennsylvania.

October 7, 2002.

COPYRIGHT MATERIAL OMITTED

Ronald H. Surkin, Richard, Di Santi, Gallagher, Schoenfeld & Surkin, Brian P. Kirby, Media, PA, for Plaintiff.

Elizabeth S. Fenton, Hangley Aronchick Segal & Pudlin, Philadelphia, PA, Kristan Peters, Pillsbury Winthrop LLP, Thomas F. Clauss, Jr., Stamford, CT, for Defendant.

MEMORANDUM AND ORDER

SCHILLER, District Judge.

I. INTRODUCTION

After a jury trial before this Court in the above-captioned matter, judgment was entered in favor of Plaintiff on July 22, 2002 as to Plaintiff's claims under the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"). In accordance with special interrogatories to the jury, this Court awarded Plaintiff Robert Jordan $260,000.00 in lost earnings and benefits accruing up to the time of trial and $90,000.00 in compensatory damages. Now before the Court is Plaintiff's petition for counsel fees and costs,¹ Plaintiff's motion to mold the verdict to include prejudgment interest and damages resulting from tax consequences, and Defendant's motion to amend judgment and for remittitur.

For the reasons that follow, I grant in part and deny in part Plaintiff's attorney fee petition; grant in part and deny in part Plaintiff's motion to mold the verdict to include prejudgment interest and damages from tax consequences; and grant in part and deny in part Defendant's motion to amend judgment and for remittitur.

II. PLAINTIFF'S PETITION FOR COUNSEL FEES AND COSTS

Petitioner seeks an award of $195,299.25 in fees and $19,147.80 in costs, representing the work of Ronald Surkin, Brian Kirby, other assisting attorneys, and a paralegal. In addition, Plaintiff seeks a supplemental award of $7,571.00 in fees and $2,292.22 in costs incurred since the initial filing of his petition. Under the ADEA and the PHRA, a "prevailing party" is entitled to an award of reasonable attorney's fees. See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir.1987); Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 626 (1998); see also Rego v. Arc Water Treatment, Civ. A. No. 94-3734, 1998 WL 334489, *1, 1998 U.S. Dist. LEXIS 9635, at *6 (E.D.Pa. June 29, 1998), aff'd, 181 F.3d 396 (3d Cir.1999); 43 P.S. § 962(c)(4)(c.2)(2002). The party seeking attorney's fees has the burden to prove that the request is reasonable. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). A reasonable attorney's fee can be calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir.2001). This figure is called the lodestar. Although the lodestar is presumed to yield a reasonable fee, the district court has considerable discretion to adjust the lodestar upward or downward once the opposing party objects to the fee request.² See Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Props., 884 F.2d 713, 721 (3d Cir.1989)).

A. Reasonableness of Hourly Rates

A court determines a reasonable hourly rate by assessing the prevailing party's attorneys' experience and skill compared to the prevailing market rates in the relevant community for lawyers of reasonably comparable skill, experience, and reputation. See Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir.2001); see also Student Pub. Interest Research Group of N. J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1450 (3d Cir.1988). Additionally, a court can take into consideration the complexity of the case, determined by "examining the difficulty counsel faced in establishing proof and in meeting the litigation strategy of defendants." Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 632 (E.D.Pa. 1998). The prevailing party bears the burden of showing that the requested hourly rates are reasonable and can satisfy this burden by the submission of affidavits of attorneys with personal knowledge of the hourly rates customarily charged in the relevant market. See Becker, 15 F.Supp.2d at 628 (citing Washington v. Phila. Ct. of Common Pleas, 89 F.3d 1031, 1036 (3d Cir.1996)). The opposing party must show a sufficient basis to contest the reasonableness of the fees. See Orson, Inc. v. Miramax Film Corp., 14 F.Supp.2d 721, 724 (E.D.Pa.1998). While an attorney's usual billing rate is a starting point for a court's determination, it is not dispositive. See Maldonado, 256 F.3d 181, 184-85 (citing Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir.1995)). The hourly rates requested for principal counsel, Ronald Surkin and Brian Kirby will be analyzed separately.³

1. Ronald Surkin, Esq.

Plaintiff has requested a $325.00 hourly rate for lead trial counsel Ronald Surkin. Defendant contests the reasonableness of this hourly rate for Mr. Surkin on two grounds. First, Defendant asserts the delegable nature of several of Mr. Surkin's tasks warrants a lower hourly rate. Second, Defendant asserts that Mr. Surkin's hourly rate is erroneously enhanced on the ground of contingency.

a. Delegable Nature of Mr. Surkin's Work

Defendant asserts that Mr. Surkin's rate should be reduced to account for the clerical and associate level work performed by lead counsel.⁴ Charging maximum rates for tasks that can be performed effectively by supporting staff or associates is not permissible. See Loughner, 260 F.3d at 180; Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983) ("[R]outine tasks, if performed by senior partners in large firms, should not be billed at their usual rates."). A court must to exclude hours that reflect "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates". Ursic, 719 F.2d at 677 (emphasis added). This proposition, however, presupposes that the attorneys charging maximum rates readily have junior associates and supporting paralegals at his or her disposal. See Poston v. Fox, 577 F.Supp. 915, 919-20 (D.N.J.1984) (finding that it is not always possible to delegate in small office); see also Roldan v. Phila. Hous. Auth., Civ. A. No. 95-6649, 1999 WL 1167658, *4, 1999 U.S. Dist. LEXIS 19093, at *14-15 (E.D.Pa.1999) (holding that reduction in rates is unwarranted in office that is understaffed and no less experienced attorney was available to perform tasks).

As Mr. Surkin detailed in his supplemental declaration, his firm is a small firm that, during the majority of the case, only had one associate. (Surkin Supplemental Dec. at ¶ 3.) Additionally, Mr. Surkin attested that at the time of this case, his firm had five or six partners that, in essence, had their own practices. (Id.) For each of the tasks that Defendant contests, Plaintiff explains, in detail, the reasons that these tasks were not easily delegable and constituted legal services that required his attention. (Plaintiff's Reply Memorandum ("Pl.Reply") at 4-7), see also Roldan, 1999 WL 1167658, *5, 1999 U.S. LEXIS 19063, at *14 (holding essentially legal tasks do not require delegation).

Alternatively, when looking at the entries referred to by Defendant, it is ironic that most of what Defendant objects to are tasks that it created. This case was highly contentious, but more so because of the demeanor of counsel than because of the merits of the case. Many of the costs and fees incurred were the result of Defense counsel's unrelenting use of discovery and motion practice that required response by Plaintiff's counsel. Defendant's counsel took full advantage of the Federal Rules of Civil Procedure and now seeks to portray Plaintiff's petition for fees as excessive and unreasonable.⁵ In light of explanations given in Mr. Surkin's supplemental declaration, the nature of Mr. Surkin's small firm, and the contentious nature of the case, I find that Mr. Surkin could not easily delegate the tasks specified by Defendant and thus, a reduction of Mr. Surkin's rates as requested by the Defendant is not warranted on this ground.

b. Contingency Enhancement & Community Market Standard

Defendant opposes the enhancement of Mr. Surkin's rate based on the contingency nature of the case. In addition, Defendant argues that Mr. Surkin's usual billing rate should be the starting point for the Court's determination of a reasonable rate under the prevailing market. Mr. Surkin's stated hourly rate is "typically $250 to $275 per hour." (Surkin Aff. ¶ 8.) Mr. Surkin, however, requests an hourly rate of $325.00. To support this rate enhancement as reasonable, Mr. Surkin refers to the Community Legal Services, Inc.'s Schedule of Hourly Rates ("CLS fee schedule"), three affidavits from attorneys in the community market, and the contingency nature of the case. (Pl. Fee Pet. ¶ 10; Surkin Aff. ¶¶ 8-11.)

Although "contingency multipliers are not permitted for fees awarded pursuant to fee shifting statutes," Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655, 677 (3d Cir.2002) (citing City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)), I find Mr. Surkin's rate enhancement reasonable for the foregoing reasons. Mr. Surkin has over 30 years of litigation experience, and 18 years of those years litigating all aspects of employment law. Among his other accomplishments, he has frequently served as a lecturer on employment law topics and as an adjunct professor in trial advocacy in Temple Law School's L.L.M. program. (Pl.'s Fee Pet. Ex. 1.) According to the CLS fee schedule, attorneys with over 25 years of litigation experience typically earn between $300.00 and $350.00 per hour. (Pl.'s Fee Pet. Ex. B.) See Maldonado, 256 F.3d at 187-88 (approving CLS fee schedule). The United States Court of Appeal for the Third Circuit has noted that the CLS fee schedule is "a fair reflection of the prevailing market...