WARNER v. TOWNSHIP OF SOUTH HARRISON et al
Filing
92
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 6/27/13. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MATTHEW WARNER,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 09-6095 (JBS/JS)
v.
OPINION
TOWNSHIP OF SOUTH HARRISON, et
al.,
Defendants.
APPEARANCES:
Surinder K. Aggarwal, Esq.
William H. Buckman, Esq.
THE WILLIAM H. BUCKMAN LAW FIRM
Moorestown Office Center
110 Marter Ave, Suite 209
Moorestown, NJ 08057
Attorneys for Plaintiff Matthew Warner
A. Michael Barker, Esq.
Todd J. Gelfand, Esq.
BARKER SCOTT & GELFAND
210 New Road
Linwood, NJ 08221
Attorneys for Defendants Township of South Harrison, Gary
Spinner, and James McCall
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter is before the Court on Plaintiff Matthew
Warner's motion for attorney fees in the above action.
Item 81.]
[Docket
Defendants South Harrison Township, Gary Spinner and
James McCall oppose this motion on several grounds, including:
the reasonableness of the hourly rate and hours expended; the
sufficiency of Plaintiff's counsel's billing records; the degree
of Plaintiff's success; and whether this lawsuit was filed in bad
faith thus precluding any fee award.
The Court conducted an
evidentiary hearing and oral argument on March 20, 2013.
For the reasons discussed herein, the Court will grant
Plaintiff's motion for attorney fees.
II.
BACKGROUND AND PROCEDURAL HISTORY
In this case, Plaintiff Matthew Warner ("Plaintiff")
performed a port scan on the Township of South Harrison's
computer network at the request of Deputy Mayor Robert Campbell
but without the permission of the Township Committee.
This
incident resulted in a state police investigation to determine
whether the Plaintiff unlawfully breached the Township's computer
network.
The state police concluded that there was no criminal
activity involved in this incident and that the Plaintiff was
asked to scan the network and believed he had the proper
authority to do so.
The matter was then referred back to the
Township for any further action.
The Township formed a
subcommittee comprised of Defendants Spinner and McCall to
investigate the incident and subsequently the subcommittee issued
its own report and findings.
Attached to this report was an
unredacted copy of the state police investigation report which
included Plaintiff's social security number, home address, date
of birth, driver's license number and personal telephone numbers.
2
Defendants Spinner and McCall handed a copy of the report with
the incorporated exhibits to the Municipal Clerk.
This report
contained Plaintiff's unredacted personal information and was
later made available to the public through Open Public Records
Act requests.
The Plaintiff filed the instant action against the
Defendants Township of South Harrison, Jeannine Campbell, Colleen
Bianco, Gary Spinner, James McCall and Warren Mabey.
Plaintiff's
intial complaint was dismissed with leave to amend, pursuant to
Defendants' Rule 12(b)(6) motion.
[Docket Item 19.]
In the First Amended Complaint, the Plaintiff alleged
Defendants violated his right to privacy under both the Federal
and State Constitutions.
The Plaintiff also brought a Fourteenth
Amendment defamation claim against the Defendants.
Lastly, the
Plaintiff brought a Monell claim for violation of federal rights
against the Township of South Harrison.
Defendants then filed a motion for summary judgment, which
this Court granted in part and denied in part. [Docket Item 58.]
The Court granted Defendants' motion for summary judgment as to
the Plaintiff's defamation claim.
The Court dismissed
Plaintiff's constitutional right to privacy claim against
Defendant Bianco and Defendant Mabey in its entirety.
The Court
also granted summary judgment and dismissed Plaintiff's right to
privacy claim against Defendants McCall and Spinner in their
3
individual capacities.
However, the Court denied summary
judgment as to the Plaintiff's right to privacy claim against
Defendants McCall and Spinner in their official capacities.
The
Court also denied summary judgment as to Plaintiff's Monell claim
against the Township.
Specifically, the Court concluded that the Plaintiff
produced evidence from which a jury could conclude his federal
rights were violated by Defendants McCall and Spinner, who were
policy makers for the Township.
The Court found that there was
evidence from which a jury could find the disclosure of
Plaintiff's personal information in the unredacted police report
was not negligent.
The Defendants then moved for reconsideration
and their motion was denied.
[Docket Item 72.]
Prior to the start of trial, Defendants made an Offer of
Judgment pursuant to Fed. R. Civ. P. 68 in the amount of
$15,001.00, exclusive of attorneys' fees and costs, which
Plaintiff accepted.
[Docket Item 75.]
This judgment was entered
without prejudice to Plaintiff's right to seek reimbursement of
attorney fees and costs.
The Plaintiff now moves pursuant to 42
U.S.C. §§ 1983 and 1988 for an award of reasonable attorney's
fees.
[Docket Item 81.]
III. DISCUSSION
A. Parties' Arguments
Plaintiff's counsel, Mr. Buckman and Mr. Aggarwal, seek
$81,098.00 in fees and $15,444.65 in costs for a total award of
4
$96,542.65.
Mr. Buckman, the partner of the firm, seeks
compensation for 14.15 hours of legal work at a rate of $400 per
hour.
Mr. Aggarwal, an associate at the firm, seeks compensation
for 274.32 hours of legal work at a rate of $275 per hour.
Plaintiff argues that the prevailing party in a civil rights
suit is entitled to a reasonable fee award under 42 U.S.C. §
1988, the Civil Rights Attorney's Fees Award Act of 1976.
Plaintiff maintains that he is the prevailing party in this
Section 1983 litigation because he accepted an Offer of Judgment
against the Defendants in the amount of $15,001.00.
Plaintiff
further maintains that the fee requested is reasonable,
especially considering this litigation was conducted over the
course of three years.
In support of this fee application, Plaintiff provided a
detailed certification by William H. Buckman discussing the
amount of time expended on this litigation and the measures taken
by the firm to keep costs and fees down.
[Docket Item 82.]
Plaintiff attached a printout of the billable professional time
spent on this matter by the firm.
(Pl.'s Ex. A.)
Plaintiff also
relies on two affidavits by James Katz, Esq. and Fredric J.
Gross, Esq. to establish the reasonableness of Mr. Buckman's and
Mr. Aggarwal's hourly rates.
(Pl.'s Ex. B.)
Therefore,
Plaintiff argues that he should be awarded fees and costs in the
amount of $96,542.65.
5
In opposition, Defendants contest Plaintiff's proposed fee
award on several levels.
First, Defendants argue the Plaintiff
is not entitled to any fee because the Plaintiff's success was
minimal and Plaintiff's complaint was spiteful and brought in bad
faith.
Defendants argue that the defamation claim was the
gravamen of the Amended Complaint and consumed the greatest
amount of counsel fees for both sides.
Since the defamation
claim was dismissed on summary judgment, Defendants argue that
any fee award based on this claim is inappropriate.
Further, Defendants argue that Plaintiff sued Police Chief
Mabey and Colleen Bianco for purely political and retaliatory,
spiteful reasons and therefore should be denied a fee award
entirely.
Specifically, Defendants argue that any fee award in
this case would be unjust considering that the instant action
arose ultimately from the Plaintiff lying to Police Chief Mabey
in the initial criminal investigation.
Plaintiff relies on
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Bishop v.
Woodward, 2003 U.S. Dist. LEXIS 17604 (D. Del. 2003)(attached as
Defs.' Ex. 8) and Dibartolo v. City of Philadelphia, 2002 U.S.
Dist. LEXIS 11527 (E.D. Pa. 2002)(attached as Defs.' Ex. 9) in
support of this argument.
Alternatively, if the Court were to award a fee, Defendants
argue the fee should be adjusted to reflect Plaintiff's minimal
success.
Plaintiff's first complaint was entirely unsuccessful
and the majority of Plaintiff's amended complaint was dismissed
6
on summary judgment.
Consequently, Defendants contend that
Plaintiff should not be awarded fees for any work prior to the
filing of the Amended Complaint.
The Defendants maintain that
the Plaintiff prevailed on the very limited issue of disclosure
of his social security number and this claim was only viable
against the Defendant Township and Defendants Spinner and McCall
in their official capacities.
Defendants state that the
informational privacy claim was only worth $700 in damages and
Plaintiff ultimately received $15,001.00 in judgment.
Defendants
argue that a fee award in excess of $96,000 is disproportional to
the success ultimately achieved.
Defendants recommend reducing
the fee award by 90% and awarding a fee of $9,600.
Defendants
rely on Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th
Cir. 1988); Dannenberg v. Baladez, 338 F.3d 1070, 1071 (9th Cir.
2003); and Corder v. Brown, 25 F.3d 833, 841 (9th Cir. 1994) in
support of this argument.
In addition, Defendants argue that Plaintiff's counsels'
hourly rates are not reasonable.
Defendants rely on multiple
affidavits to support their contention that the reasonable market
rate for the legal services rendered in this case is $250 per
hour for Mr. Buckman and $150 per hour for Mr. Aggarwal.
Exs. 10A-10E.)
(Defs.'
Defendants further argue that the affidavits in
support of Plaintiff's requested hourly rates are insufficient
because they fail to attest that any clients actually paid $400
per hour and $250 per hour for partner and associate services.
7
Defendants also cite to recent District of New Jersey unpublished
opinions establishing that the prevailing hourly attorney billing
rate in the Southern New Jersey marketplace is $250 per hour for
partners and $150 per hour for associates.
Finally, Defendants argue that Plaintiff's counsel should be
compensated only for time reasonably spent.
The Defendants
contest many of Mr. Buckman's and Mr. Aggarwal's billing entries
as being too vague and rely on EEOC v. UPS, 2009 U.S. Dist. LEXIS
91241, *14 (D.N.J. 2009)("[Time E]ntries, which simply contain
information such 'Tel w/[Plaintiff's counsel][,]' Tel.
W/client[,]' 'Letter to client' and 'Reviewing case law' are
insufficient.").
Defendants also argue the Plaintiff's counsel are not
entitled to fees for excessive and repetitive tasks.
Defendants
contend that it should have taken Plaintiff's counsel no more
than 0.1 hour to review correspondence and therefore all billing
entries for 0.2 hours for reviewing correspondence should be
reduced to 0.1 hours.
Defendants further contend that certain tasks should be
billed at a reduced rate given the nature of the work.
Defendants maintain that 2.0 hours of Mr. Buckman's work should
have been billed at an associate attorney's rate and 0.33 hours
of Mr. Aggarwal's work should have been billed at a paralegal
rate.
Defendants also argue that Plaintiff's counsel's travel
8
time should be computed at 50% of counsel's reasonable market rate.
Therefore, Defendants argue Plaintiff's fee request should
be denied entirely or alternatively, Plaintiff's fee should be
significantly reduced in accordance with the above objections.
In reply, Plaintiff argues that his fee request is
reasonable and should be awarded in its entirety.
First,
Plaintiff argues he is entitled to a fee award as he is the
prevailing party and the fees requested are not excessive in
light of the three year litigation history of this case.
Plaintiff relies on DirectTV, Inc. v. Clark, 2007 U.S. Dist.
LEXIS 55023 (D.N.J. July 27, 2007)(holding an award of $87,628.90
in fees and expenses was reasonable where underlying claim was
$10,000 in light of defendant's litigation strategy).
Plaintiff next argues that the success achieved in this
litigation was not limited because the claims all arose out of a
common core of facts.
In addition, Plaintiff maintains that he
is entitled to an award of fees for work prior to the preparation
of the Amended Complaint because the right to privacy claim,
initially pled as a violation of the Privacy Act of 1974, was
simply re-pled as a Fourteenth Amendment violation in the Amended
Complaint.
Consequently, there was no break in continuity of
the litigation and all claims arose from a common core of facts.
Plaintiff relies on Failla v. City of Passaic, 146 F.3d 149, 160
n.15 (3d Cir. 1998) and Hensley, 461 U.S. at 435.
9
Plaintiff next maintains that the requested hourly rate is
reasonable in light of the experience and skill of counsel.
Further, Plaintiff relies on Robinson v. Jordan, Civil No. 085863 (NLH/JS)(Pl.'s Ex. B) wherein Judge Hillman awarded Mr.
Buckman fees at the hourly rate of $400 and awarded Mr. Buckman's
associate fees at the hourly rate of $275.
Judge Hillman found
these rates to be reasonable and noted that the firm kept fees
down by having an associate perform the majority of the work.
Finally, Plaintiff attaches the supplemental certification
of Mr. Aggarwal in support of his argument that the time expended
on this litigation was reasonable.
As to the allegedly vague
entries, Mr. Aggarwal, attests that to reveal more details would
violate the attorney client privilege and concedes to an in
camera inspection of the records by the Court if necessary.
As
to Mr. Buckman's 2 hours spent doing legal research for drafting
the initial complaint, Aggarwal attests that Mr. Buckman made the
decision that this was partner level work, not associate level
work.
Aggarwal next asserts that it was not excessive to review
subpoenas and documents, and failure to thoroughly review these
documents would have amounted to carelessness and incompetence.
Further, Aggarwal asserts that Defendants have presented no
evidence to support their contention that review of
correspondence should have taken 0.1 hours instead of 0.2 hours.
In addition, Aggarwal attests that he does not have a paralegal
10
and could not delegate his work to a paralegal to incur a lower
fee.
Finally, as to travel time, Aggarwal attests that he did
not bill for travel time to attend the deposition of numerous
individuals noticed by the Defendants or travel time to attend a
pretrial/settlement conference with Judge Schneider.
Therefore, Plaintiff maintains that his fee request is
reasonable and should be granted without any reduction.
B. Analysis
The award of attorney’s fees and costs in this case is
authorized pursuant to 42 U.S.C. § 1983 and the Civil Rights
Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988.
Specifically, 42 U.S.C. § 1988 provides that in any action
brought pursuant to Section 1983, “the court, in its discretion,
may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs . . . "
42 U.S.C.
§ 1988(b).
Under Buckhannon Bd. and Care Home, Inc. v. West Virginia
Dep’t of Health and Human Res., 532 U.S. 598, 604 (2001), in
deciding whether a party is a prevailing party, “enforceable
judgments on the merits and court-ordered consent decrees create
the ‘material alteration of the legal relationship of the
parties’ necessary to permit an award of attorney’s fees.”
The
party seeking attorney’s fees must “receive at least some relief
on the merits of [their] claim before [they] can be said to
11
prevail.”
State Teachers’ Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 792 (1989).
In the Third Circuit, a court must
determine whether: (1) the plaintiff obtained relief on a
significant claim in the litigation; and (2) there is a causal
connection between the litigation and the relief obtained from
the defendant.
See Metro. Pittsburgh Crusade for Voters v. City
of Pittsburgh, 964 F.2d 244, 250 (3d Cir. 1992).
Here, the Court finds that Plaintiff Warner is a prevailing
party under 42 U.S.C. § 1988.
The Plaintiff obtained a judgment
against Defendants Gary Spinner, James McCall and South Harrison
Township pursuant to Fed. R. Civ. P. 68 in the amount of
$15,001.00.
This judgment was entered only after the Plaintiff
survived summary judgment on his right to privacy claim.
The
Plaintiff's right to privacy claim was a significant claim in the
litigation and was pursued by the Plaintiff since the filing of
his initial complaint.
Without this litigation, the Plaintiff
would not have obtained this $15,001.00 judgment against the
Defendants.
Therefore, the Plaintiff is the prevailing party in this
action.
1.
Is the Plaintiff entitled to a fee award?
An award of attorney's fees and costs are ordinarily
appropriate under 42 U.S.C. § 1988 when a plaintiff prevails in a
civil rights suit "unless special circumstances would render such
12
an award unjust."
Hensley, 461 U.S. at 429.
The Defendants
argue that Plaintiff is not entitled to any fee award because his
defamation claim, the alleged "gravamen" of the complaint, was
unsuccessful and his claims against Defendants Colleen Bianco and
Chief Mabey were dismissed in their entirety.
Defendants argue
that this is evidence that Plaintiff brought this lawsuit in bad
faith "for purely political and retaliatory, spiteful reasons."
(Defs.' Br. at 15.)
In support of this argument, the Defendants
rely on two unpublished district court cases, Bishop v. Woodward,
2003 U.S. Dist. LEXIS 17604 (D. Del. 2003) and Dibartolo v. City
of Philadelphia, 2002 U.S. Dist. LEXIS 11527 (E.D. Pa. 2002).
The Court finds the Defendants' argument is without merit and
concludes that the Plaintiff is entitled to a fee award in this
case.
First, the Defendants' argument that Bishop and Dibartolo
support the proposition that a prevailing plaintiff should be
denied fees where it appears that the case was brought in bad
faith and the complaint was unjust, frivolous or unreasonable is
unpersuasive.
Both Bishop and Dibartolo analyzed whether a
prevailing defendant who had successfully obtained summary
judgment on the plaintiff's claims was entitled to an award of
fees.
Both cases noted that a prevailing defendant is entitled
to fees under Section 1988 only when it is found that the action
was brought in bad faith and the action was frivolous,
13
unreasonable or without foundation.
Bishop, 2003 U.S. Dist.
LEXIS 17604 at **5,8; Dibartolo, 2002 U.S. Dist. LEXIS 11527 **34.
These cases did not hold that a prevailing plaintiff could be
denied fees under this standard.
Indeed, the Defendants have not
cited one case where a prevailing plaintiff who survived summary
judgment and ultimately received a judgment against the defendant
was denied an award of fees.
Here, there are no special circumstances which would render
an award of attorney's fees unjust.
While the Plaintiff's
defamation claim was unsuccessful, the Plaintiff's constitutional
right to privacy was meritorious.
This claim was not frivolous,
malicious or brought in bad faith.
It is on the basis of this
right to privacy claim that the Plaintiff will be awarded fees.
As will be discussed more thoroughly in subsection III.B.4 below,
the Court will adjust the lodestar calculation downward to
account for Plaintiff's limited success.
Hensley, 461 U.S. at
436.
Defendants' unsupported argument that the Plaintiff brought
this lawsuit for purely political or spiteful reasons is equally
without merit.
There is no evidence in the record to support
this bald assertion.
Further, there is no evidence that the
Plaintiff pursued this litigation for any other reason than to
seek redress for his alleged defamation and the public disclosure
of his private personal identifiers.
14
In addition, there are no
allegations of misconduct by the Plaintiff or his attorney in
conducting this litigation either in discovery or through motion
practice before the Court.
Therefore, the Court concludes that the Plaintiff is the
prevailing party in this civil rights action and is entitled to
an award of reasonable attorney's fees.
2.
Are the hourly rates for Mr. Buckman and Mr.
Aggarwal reasonable?
The starting point for this Court’s determination of
reasonable attorney’s fee is calculation of the lodestar amount,
which is “the number of hours reasonably expended multiplied by a
reasonable hourly rate.”
Penn. Env’t Def. Found. v. CanonMcMill,
152 F .3d 228, 231 (3d Cir. 1998)(citing Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)); see also Blakey v. Continental
Airlines, Inc., 2 F.Supp. 2d 598 (D.N.J. 1998).
In applying the
lodestar formula, it is imperative for a district court to
“carefully and critically evaluate the hours and the hourly rate
set forth by counsel.”
Blakey, 2 F.Supp. 2d at 602.
Once the
lodestar is calculated, the district court is permitted to adjust
fees depending on the success of the party seeking fees.
Penn.
Env’t Def. Found., 152 F.3d at 232 (citing Hensley, 461 U.S. at
433).
The reasonable hourly rate is determined by reference to the
marketplace.
See Missouri v. Jenkins, 491 U.S. 274, 285 (1989)
(“We have consistently looked to the marketplace as our guide to
15
what is ‘reasonable.’”)
The attorney’s customary billing rate is
the proper starting point for calculating fees.
Cunningham v.
City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985).
Indeed,
“the court should assess the experience and skill of the
prevailing party’s attorney[] and compare [his] rates to the
rates prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and reputation.”
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
The
party seeking to recover attorney’s fees has the initial burden
of “producing sufficient evidence of what constitutes a
reasonable market rate for the essential character and complexity
of the legal services rendered in order to make out a prima facie
case.”
Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001);
L.J. ex rel. V.J. v. Audubon Bd. of Educ., 373 F. App’x 294, 296
(3d Cir. 2010).
The hourly rate to be determined is a reasonable
rate at the time of the fee application, not at the past dates
when services may have been rendered.
If the burden is met, the party opposing the fee award can
rebut the reasonableness of the proffered hourly rate with record
evidence.
Smith v. Philadelphia Hous. Auth., 107 F.3d 223, 225
(3d Cir. 1997).
If hourly rates are disputed with actual
evidence rather than mere argument, the court must conduct a
hearing to determine the reasonable market rates.
Id.
district court may not set attorney’s fees based upon “a
A
16
generalized sense of what is usual and proper, but ‘must rely
upon the record.’”
Evans v. Port Auth., 273 F.3d 346, 362 (3d
Cir. 2001) (quoting Smith, 107 F.3d at 225).
Here, the parties have submitted conflicting affidavits as
to the reasonable hourly rate for the legal services rendered in
this case.
As noted above, Plaintiff's counsel, Mr. Buckman,
seeks an hourly rate of $400 as a partner and Mr. Aggarwal, as an
associate, seeks an hourly rate of $275.
In support of this
figure, the Plaintiff submitted the affidavits of James Katz,
Esq. and Fredric J. Gross, Esq.
The Defendants allege these
affidavits are insufficient because they fail to assert what
hourly rates were actually charged to clients and paid by
clients.
The Defendants argue that the reasonable hourly rate for a
partner, such as Mr. Buckman, is $250 per hour and the reasonable
hourly rate for an associate, such as Mr. Aggarwal, is $150 per
The Defendants submit five affidavits1 in support of their
hour.
argument:
1
The Defendants' affidavits all contain the wrong case
caption. Instead of Warner v. Township of South Harrison, these
affidavits are captioned for D'Orazio v. Washington Township. In
addition, all five affidavits were attested to on May 13, 2011.
It appears that Defendants recycled old affidavits from a
previous case. While the Court finds these affidavits are still
relevant to the instant analysis, the Court notes that these
rates were attested to two years prior to this opinion and their
relevance is diminished when determining the reasonable rate for
2013.
17
•
William G. Blaney, Esq., an associate at Gruccio, Pepper, De
Santo & Ruth, P.A. Law Firm, opines that the prevailing
market rate for attorneys litigating employment cases in the
Southern New Jersey region is in the range of $125-$250 per
hour.
•
Arthur J. Murray, Esq., a partner at Jacobs & Barbone, P.A.,
opines that he is paid up to $250 per hour and the majority
(80%) of his files are plaintiffs' civil litigation, equally
proportioned between personal injury, employment and civil
rights.
•
Robert De Santo, Esq., a partner at Gruccio, Pepper, De
Santo & Ruth, P.A. Law Firm, opines that the prevailing
market rate for attorneys litigating employment cases in the
Southern New Jersey region is in the range of $125 to $250
per hour.
•
Michael Barker, Esq., a partner of Barker, Scott, Gelfand &
James (Defendants' counsel in this case), opines that the
prevailing market rate for attorneys litigating employment
and civil rights cases in the Southern New Jersey region is
in the range of $125 to $250 per hour.
•
Michael J. Blee, Esq., a managing member of the law firm,
Michael J. Blee, Esq., Attorney at Law, LLC, opines that the
prevailing market rate for attorneys litigating employment
cases in the Southern New Jersey region is in the range of
$125 to $250 per hour.
Because the parties have submitted conflicting affidavits, the
Court conducted a hearing to determine the reasonable market
rate.
At the hearing, the following affiants testified: James
Katz; Frederic Gross; Arthur Murray; William Blaney; Michael
Barker.
After hearing testimony and reviewing the submitted
affidavits, the Court makes the following findings.
First, there was extensive testimony from all witnesses
regarding the complexity and unique challenges faced by
plaintiffs' civil rights attorneys when the defendant is a
18
municipality.
Many civil rights attorneys will not represent
individuals suing municipalities for a variety of reasons,
including political and economic difficulties.
This results in a
dearth of attorneys available in the Southern New Jersey area,
indeed in the state of New Jersey, who specialize in this type of
litigation.
Second, plaintiff civil rights litigation is distinct from
civil rights defense work.
Civil rights defense work is
typically funded on a contract basis and payment is certain.
In
contrast, plaintiffs' attorneys are generally compensated through
a contingent fee arrangement and consequently, payment is
uncertain.
When a contingent fee is awarded in state court, the
state court will provide a contingency fee enhancement which
enlarges the typical hourly rate and increases it to compensate
for the uncertainty of payment.
Third, of all the witnesses that testified, the Court found
Mr. Murray and Mr. Blaney most probative and helpful.
Both Mr.
Murray and Mr. Blaney made corrections to their affidavits which
were submitted by the Defendants.
Mr. Murray was admitted to the
bar in 1995 and is rated AV in Martindale-Hubbell.
Mr. Murray
discussed at length that he is a partner in the Atlantic City
firm of Jacobs and Barbone where his hourly rate was $250 per
hour but that rate was typically enhanced in state court with a
contingency fee enhancement.
Further, Mr. Murray testified that
19
fewer than 10 attorneys in the Southern New Jersey area take
plaintiff civil rights cases and even fewer take cases against a
municipality.
This is because the cases are often complex,
usually result in the plaintiff losing and can hamper an
attorney's relationship with the surrounding community.
Mr.
Murray testified that the partners in his firm with comparable
experience to Mr. Buckman are Mr. Barbone and Mr. Jacobs.
These
partners have been awarded fees of $400 per hour and $475 per
hour for their civil rights work.
Mr. Blaney testified that he does largely defense work
representing counties and municipalities.
He was admitted to the
bar in 1998 and his rate is $225 per hour as an associate in
Vineland, NJ, according to his affidavit.
Mr. Blaney explained
that he has seen awards between $300 to $375 per hour for fee
applications for civil rights work in state court.
He testified
that a rate of $300 to $375 per hour for a litigating partner is
reasonable for this type of litigation in this geographical area.
He acknowledged that Mr. Barbone of Jacobs and Barbone has been
awarded fees of $400 per hour in Civil Rights Act cases, but he
described Mr. Barbone, against whom he has litigated, as one of
the best trial attorneys in Southern New Jersey, thus warranting
a higher rate than the general market rate for experienced
partners.
20
Finally, the Court notes that while there was extensive
testimony on the reasonable hourly rate for a partner, there was
minimal testimony on a reasonable hourly rate for an associate
for this type of litigation.
While Fred Gross declared in his
affidavit that Mr. Aggarwal's rate of $275 per hour was
reasonable, he did not testify in detail about this opinion at
the hearing.
Mr. Gross apparently employs no associates.
Rather, Mr. Gross testified that he typically charges $250 to
$500 per hour for his consulting services and did not expand on
whether he employs associates or what factors contribute to an
associate's reasonable hourly rate.
James Katz, Plaintiff's
other affiant, did not attest to Mr. Aggarwal's rate and focused
primarily on Mr. Buckman's partner rate.
He also indicated that
attorneys who will take privacy cases are few in this area.
None
of the Defendants' witnesses were questioned or testified about
an associate's reasonable hourly rate for this type of work.2
Based on the affidavits and testimony described above, the
Court finds that Mr. Buckman's rate of $400 per hour is
2
The testimony of another witness, A. Michael Barker, was
less illuminating. He is a partner of the firm defending this
case and that firm seldom handles plaintiffs' civil rights cases.
He also indicated he had not reviewed his own affidavit (from the
D'Orazio case, supra n.1), before testifying in this case. He
stated he had no knowledge of fee awards to plaintiffs' attorneys
in civil rights cases in this region. He acknowledged that he
charged $250/hour representing a plaintiff in an identity
protection case three years ago, and he acknowledged that the fee
awarded in D'Orazio was at a $250 rate. Overall, his testimony
is colored by his interest, as a partner in the firm defending
this case, and by his lack of knowledge of plaintiffs' fees.
21
reasonable.
The Court bases this finding on the testimony of Mr.
Murray and Mr. Blaney.
Mr. Buckman is an attorney with over
forty years of experience, served as a public defender prior to
entering private practice and has actively participated in
several legal civil rights organizations.
He is reputable in
this area and has significant experience in this type of
litigation.
He has handled significant, successful cases under
the Civil Rights Act.
Mr. Murray testified as to the hourly
rates charged by two attorneys in his firm with comparable
reputation and experience - Mr. Barbone and Mr. Jacobs - both of
whom charge between $400 and $475 per hour.
Therefore, the Court
will award fees to Mr. Buckman at his requested rate of $400 per
hour.
The Court, however, finds that Mr. Aggarwal's requested rate
of $275 per hour is unreasonable.
The attorneys who testified
said surprisingly little about the reasonableness of Mr.
Aggarwal's $275 hourly rate, especially in view of the fact that
Mr. Aggarwal's time spent was almost 20 times greater than Mr.
Buckman's, so Aggarwal's fee is driving the lodestar.
The five
affidavits submitted by Defendants each suggested that $150 was
the appropriate billing rate for an associate in this
geographical area in 2011, as mentioned above.
Mr. Aggarwal was
admitted to practice in New Jersey in November 2007 and has been
practicing with the William H. Buckman Law Firm since June 2008.
22
He has had less than five years of experience with the Buckman
Law Firm working on these types of complex civil rights cases.
When compared with Mr. Murray, who until recently charged a rate
of $250 per hour, and Mr. Blaney who charges $225 per hour as an
associate with 15 years of experience, Mr. Aggarwal's experience
and reputation are unfledged and still in development.
Mr.
Aggarwal handled the challenges of this case well and with a
minimum of supervision.
The Court is cognizant of the Community Legal Services
(“CLS”) fee structure, which has been cited approvingly by the
Third Circuit Task Force on Court Awarded Attorney’s fees and
relied on by numerous District judges to resolve fee awards.
See
Court Awarded Attorney Fees, 108 F.R.D. 237 (3d Cir. 1986); for
instances of Court reliance on the CLS fee structure see, e.g.,
Maldonado v. Houstoun, 256 F.3d 181, 187 (3d Cir. 2001); Rainey
v. Philadelphia Housing Auth., 832 F.Supp 127, 129 (E.D. Pa.
1993); Swaayze v. Philadelphia Housing Auth., No. 91-2982, 1992
WL 81598, at *2 (E.D. Pa. Apr. 16, 1992).
Due to the lack of testimony and record support for Mr.
Aggarwal's associate rate, the Court finds it necessary to
consult the CLS fee structure in determining whether a rate of
$275 is reasonable for an associate of Mr. Aggarwal's experience.
In the instant matter, the Court notes that CLS recommends hourly
rates in 2011 of $180-225 for attorneys with 2-5 years of
23
experience.
Attorney Fees, Community Legal Services of
Philadelphia, June 23, 2011,
http://www.clsphila.org/Content.aspx?id=206.
The Court further
notes that CLS reserves hourly rates of $275 for those attorneys
with 11-15 years experience. Id.
While this list of rates for
legal services was last updated in June 2011, the Court finds it
persuasive and relevant in the analysis here.
There is no
evidence that typical fees for associates have accelerated since
2011, so the CLS table from 2011 gives a fair picture of the 2013
rates being determined here and is consistent with the other
evidence.
Finally, the Court notes that the District of New Jersey
previously awarded an associate at the Williah H. Buckman Law
Firm a rate of $275 per hour.
Robinson v. Jordan, 2012 U.S.
Dist. LEXIS 87427 (D.N.J. June 25, 2012).
However, there is no
evidence in the record or facts in the Robinson opinion from
which the Court can determine the relevant experience of the
associate in Robinson and whether this contributed to the
reasonableness of the requested fee.
Therefore, after reviewing the evidence in the record, the
testimony at the hearing, the CLS fee structure and the relevant
case law, the Court concludes that a reasonable hourly rate for
Mr. Aggarwal's services is $225 per hour.
This rate is at the
top of the CLS recommended range and comports with Mr. Aggarwal's
24
developing experience as a young associate.
It is comparable to
the billing rates of several witnesses performing similar
litigation services for clients, Mr. Murray and Mr. Blaney, who
each have significantly more experience.
It is less than the
previous rate awarded in the District of New Jersey for associate
level work at the William H. Buckman Law Firm in the Robinson
case, supra, but that determination contains no analysis of why a
$275 rate was awarded, nor that the rate itself was contested.
Accordingly, the Court finds that a reasonable hourly rate
for Mr. Buckman is $400 and for Mr. Aggarwal is $225.
3.
Were the hours expended reasonable and is the
billing record sufficient?
After the hourly rate is determined, the Court must analyze
whether the number of hours expended was reasonable.
461 U.S. at 433.
Hensley,
For this, the Court must examine the record to
determine that the hours billed are not “unreasonable for the
work performed.”
Washington, 89 F.3d at 1037.
“Hours are not
reasonably expended if they are excessive, redundant, or
otherwise unnecessary.”
461 U.S. at 433).
Rode, 892 F.2d at 1183 (citing Hensley,
Compensable activities include the preparation
of filing the lawsuit, background research, productive attorney
discussions and strategy sessions, negotiations, routine
activities such as making telephone calls and reading mail
related to the case, monitoring and enforcing a favorable
judgment, and travel among other things.
25
See City of Riverside
v. Rivera, 477 U.S. 561, 573 n.6 (1986); see also Maldonado v.
Houston, 256 F.3d 181, 184-85 (3d Cir. 2001); Posa v. City of
East Orange, Civ. No. 03-233, 2005 WL 2205786, at *4 (D.N.J.
Sept. 8, 2005).
In addition, time spent drafting and litigating
a fee application is compensable.
See Planned Parenthood v.
Attorney General of the State of N.J., 297 F.3d 253, 268 (3d Cir.
2002).
In its evaluation, the district court has “a positive and
affirmative function in the fee fixing process, not merely a
passive role.”
Maldonado, 256 F.3d at 184.
The district court
must “go line, by line” through the billing records supporting
the fee request.
Evans, 273 F.3d at 361.
As part of the
determination of reasonable hours expended, attorneys seeking
fees must document the hours for which payment is sought “with
sufficient specificity. . . . [W]here the documentation of hours
is inadequate, the district court may reduce the award
accordingly.”
Washington, 89 F.3d at 1037 (internal citations
omitted); R.C. v. Bordentown Reg’l Sch. Dist. Bd. of Educ., Civ.
No. 05-3309, 2006 WL 2828418, at *3 (D.N.J. Sept. 29, 2006).
Here, Plaintiff's counsel has attached a billing printout
detailing 288.47 hours of legal work expended in this case for
over three years.
Defendants make specific objections to 40.23
hours of this billing record.
Specifically, Defendants object to
20.4 hours because the description provided by Plaintiff's
26
counsel is too vague and lacks sufficient specificity.
Defendants next object to 7.5 hours of work as clerical and/or
excessive.
Defendants object to 0.33 hours spent by Mr. Aggarwal
which was charged at an associate level rate instead of a
paralegal level rate.
Similarly, Defendants object to 2.0
hours spent by Mr. Buckman on associate level work.
Finally,
Defendants object to 10.00 hours charged by Mr. Aggarwal for
travel time and argue that travel time should be billed at 50% of
the reasonable hourly rate.
Defendants do not object to the
remaining 248.24 hours billed by Plaintiff's counsel.
As a preliminary matter, the Court has reviewed the billing
records submitted by Plaintiff's counsel and concludes that the
uncontested 248.24 hours was reasonably expended and sufficiently
documented.
a. Vague entries
The majority of Defendants' objections are that billing
entries totaling 20.4 hours are too vague and therefore not
compensable on this fee application.
The description of work
performed for 18.2 of these hours include numerous entries for
"Letter to Client," "Meeting with Client," and "Call to Client"
performed by Mr. Aggarwal and Mr. Buckman.
In addition, there is
one entry entitled, "Legal Research for Complaint" totaling 2.00
hours for Mr. Buckman and one entry entitled "Letter to Todd J.
Gelfand, Esq." totaling 0.20 hours for Mr. Aggarwal that
27
Defendants claim are too vague.
Plaintiff's counsel maintain
that to reveal any more information with regard to client
communications would infringe upon the attorney/client privilege.
Plaintiff's counsel also attaches the letter which was written to
Todd J. Gelfand, Esq., and argues that "legal research for
complaint" is not vague or insufficient.
The Court concludes the entries "Letter to Client," "Meeting
with Client," and "Call to Client" are too vague.
The Court
agrees with EEOC v. UPS, 2009 U.S. Dist. LEXIS 91241, **14-15
(D.N.J. Sept. 30, 2009), wherein the district court specifically
found that entries such as "Tel w/ client" and "Conf. w/ client"
were too vague for a fee award.
Specifically, the district
court rejected the prevailing party's argument that more
description could not be provided without breaching the attorneyclient privilege and held that a party "must also identify the
general subject matter of the communication at issue" for a claim
of privilege to apply.
Id. at *14 (citing Torres v. Kuzniasz,
936 F. Supp. 1201, 1208-09 (D.N.J. 1996)).
The court further
concluded that an entry stating "Tel. w/Rain re Protective Order"
was sufficient since it contained minimal detail about the
subject matter of the communication.
Id.
Here, it is clear the majority of the vague entries contain
no description of the subject matter of the communication.
The
Court finds that Plaintiff's counsel has not provided sufficient
28
detail to invoke the attorney-client privilege.
Therefore, based
on the record before the Court, the Court will deny a fee award
based on these entries.
Mr. Aggarwal has submitted the letter he drafted to Mr.
Gelfand, and the Court is therefore able to conclude that the 0.2
hours spent on this letter was reasonable.
Mr. Buckman's 2.0
hours conducting legal research for the complaint is also
reasonable for the work performed and the billing description is
sufficient to award fees for this time.
Therefore, the Court will reduce the number of hours for
Plaintiff's fee award by 18.2 hours which represents the time
spent on billing entries entitled "Letter to Client," "Meeting
with Client," and "Call to Client."
This 18.2 hour reduction
represents a reduction of 14.55 hours for Mr. Aggarwal and 3.65
hours for Mr. Buckman.
b.
Clerical/Excessive entries
Defendants challenge 7.50 hours Mr. Aggarwal spent reviewing
numerous pieces of correspondence in preparation for depositions.
Mr. Aggarwal billed 0.2 hours for approximately 35 entries
reviewing different correspondence and supboenas in preparation
for different depositions.
Defendants argue that 0.1 hours
should have been expended on this task and 0.2 hours is
excessive.
29
This objection is without merit.
The difference between 0.1
and 0.2 hours is minimal and the Court cannot in hindsight
conclude that Mr. Aggarwal should have spent 6 minutes reviewing
a document instead of 12 minutes.
Nor have the Defendants
submitted any evidence in support of their objection, such as
their own billing records for what they typically charge their
clients when reviewing correspondence.
Therefore, the Court
finds that this portion of Plaintiff's counsel's fee request is
reasonable.
c.
Paralegal Level Work
Defendants next argue that 0.33 hours spent by Mr. Aggarwal
in preparing a notice of subpoena directed to Jeanine Campbell
was paralegal work and should be charged at a paralegal rate
instead of an associate level rate.
Mr. Aggarwal avers that he
does not have a paralegal to assist him and he could not delegate
this task.
The Court cannot conclude as a matter of law that a
paralegal should prepare a subpoena.
Subpoenas are court
documents that have legal force and effect. Therefore, it is
proper for an attorney to prepare it and 0.33 hours is a
reasonable time for such a task.
without merit.
30
Defendants' objections are
d.
Associate Level Work
Defendants object to Mr. Buckman's billing entry of 2.0
hours for "legal research for complaint" as being associate level
work in addition to being vague.
Whether this task was more
appropriate for an associate or a partner is a question of
discretion.
While a partner has a higher billing rate, it is
conceivable that Mr. Buckman was able to research the civil
rights issues presented in this case more efficiently due to his
expertise and ultimately save the client time and money.
Mr.
Buckman ultimately prepared the complaint and Defendants do not
object to a partner spending 3.0 hours on this task.
The Court concludes that 2.0 hours of efficient research by
a partner with experience is reasonable when the alternative
could have resulted in more hours and more cost to the client.
Consequently, the Court rejects Defendants' objection.
e.
Travel Time
Defendants argue that Mr. Aggarwal should be reimbursed for
travel time at 50% of the reasonable hourly rate.
In order to
determine the rate at which an attorney may be compensated for
travel time, "a court must look to the practice in the local
community."
Planned Parenthood of Central New Jersey v. Attorney
General of State of New Jersey, 297 F.3d 253, 267 (3d Cir. 2002).
This district has previously held "the prevailing rate for travel
time in New Jersey is fifty percent of the attorney's reasonable
31
rate."
*10.
EEOC v. UPS, No. 06-1453, 2009 U.S. Dist. LEXIS 91241, at
A fractional rate for travel time of 25% of the normal rate
has been upheld.
Cir. 1990).
Smith v. Freeman, 921 F.2d 1120, 1122 (10th
Plaintiff's counsel provides no support for his
contention that travel time should be reimbursed at his full
hourly rate.
Instead, Plaintiff argues that he is not seeking
reimbursement for all of his travel, including travel to and from
depositions and travel to a pretrial/settlement conference.
Therefore, Plaintiff argues it is reasonable to reimburse him for
this minimal travel at his full hourly rate.
Private counsel use
similar billing discretion in not billing a client fully for time
spent in travel, and a reasonable fee should reflect the same
discretion.
The predominant trend in New Jersey is to reimburse travel
time at 50% of an attorney's reasonable hourly rate.
EEOC v.
UPS, 2009 U.S. Dist. LEXIS 91241, at *10; Glass v. Snelbaker, No.
05-1971, 2008 U.S. Dist. LEXIS 73012, at 20 (D.N.J. Sept. 23
2008)(Simandle); Erhart v. City of Atl. City, No. 00-6209, 2006
U.S. Dist. LEXIS 57709, at **22-23 (D.N.J. Aug. 17, 2006); Gares
v. Willingboro Twp., No. 91-4334, 1995 U.S. Dist. LEXIS 3699, at
**19-20.
Consequently, the Court will award Plaintiff
attorney's fees for 10 hours of travel at $112.50 per hour which
is half of Mr. Aggarwal's reasonable hourly rate.
4.
What was the degree of Plaintiff's success?
32
Once the lodestar is calculated, the district court is
permitted to adjust fees depending on the success of the party
seeking fees.
Penn. Env’t Def. Found., 152 F.3d at 232 (citing
Hensley, 461 U.S. at 433.)
Specifically, the district court may
adjust the amount, which is “primarily based on the degree of
success that the plaintiff obtained.”
Id.
Where a plaintiff presents different claims for relief
that are based on unrelated facts and legal theories,
courts should exclude fees for time expended in
unsuccessful claims. However, where much of counsel’s
time was devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a
claim-by-claim basis, the district court should focus on
the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on
the litigation. [T]he most critical factor is the degree
of success obtained. In exercising its discretion in
fixing the award, the district court may attempt to
identify specific hours that should be eliminated, or it
may simply reduce the award to account for the limited
success.
Field v. Haddonfield Bd. of Educ., 769 F.Supp. 1313, 1322 (D.N.J.
1991) (internal citations, quotations, and footnotes omitted);
see also Holmes v. Millcreek Twp. School Dist., 205 F.3d 583,
595-96 (3d Cir. 2000) (awarding one-fourth of fees where
plaintiff prevailed on some but not all claims).
Thus, in Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir.
1990), the Third Circuit dealt with a fee application where the
plaintiff, as in the present case, prevailed against several
governmental officials but the court dismissed claims against
others.
It was proper to exclude time for work in unsuccessfully
33
defending against motions to dismiss.
But even the hours spent
on claims against the dismissed defendants are compensable "if
'plaintiff can establish that such hours also were fairly devoted
to the prosecution of the claim against' the defendants over whom
plaintiff prevailed."
Id. at 1185 (quoting Pawlak v. Greenawalt,
713 F.2d 972, 979 (3d Cir. 1983)).
Of course, in lieu of
identifying "specific hours that should be eliminated," the court
"may simply reduce the award to account for the limited success."
Hensley, 461 U.S. at 436-37.
The Hensley Court added:
"The
court necessarily has discretion in making this equitable
judgment.
This discretion, however, must be exercised in light
of the considerations we have identified."
Id.
The lodestar
should not be reduced, however, simply because a plaintiff
recovered a low damage award.
Davis v. Southeastern Pa. Transp.
Auth., 924 F.2d 51, 55 (3d Cir. 1991).
Similarly, a lodestar
should not be reduced in a § 1983 action "to maintain some ratio
between the fees and the damages awarded."
Washington v.
Philadelphia County Court of Common Please, 89 F.3d 1031, 1041
(3d Cir. 1996).
In this case, Defendants argue that the gravamen of
Plaintiff's complaint was his defamation claim which was
dismissed on summary judgment.
Defendants maintain that the
right to privacy claim was only a minimal part of Plaintiff's
complaint.
Further, Plaintiff's claims against Defendant Bianco
34
and Defendant Mabey were dismissed in their entirety and the
individual capacity claims against Defendants McCall and Spinner
were also dismissed.
Defendants argue that the Plaintiff
essentially prevailed against one party, the Township, on one
claim, which is minimal when compared to the total relief sought.
Finally, Defendants contend that since Plaintiff's first
complaint was dismissed pursuant to Rule 12(b)(6), the Plaintiff
should not be compensated for any work prior to the preparation
of the Amended Complaint.
Defendants therefore recommend
reducing Plaintiff's fee request by 90% to reflect the limited
amount of success obtained.
In contrast, Plaintiff argues that the right to privacy
claim was interrelated to the other claims in his lawsuit and
arose from a common core of facts.
Consequently, Plaintiff
maintains it is inappropriate to characterize his success as
limited.
Moreover, Plaintiff argues that his privacy claim was
pled in his first complaint, though improperly brought under the
Privacy Act instead of the Fourteenth Amendment, and therefore
the Plaintiff should be permitted to recover fees for work
performed prior to the Amended Complaint.
Since all of
Plaintiff's claims arose from a common core of facts, Plaintiff
opposes any reduction of his fee.
There are two issues before the Court.
The first is whether
the Plaintiff should be compensated for work done prior to the
35
filing of his Amended Complaint.
The second issue is whether a
percentage reduction is warranted due to Plaintiff's limited
success.
While the Plaintiff's right to privacy claim was improperly
brought under the Privacy Act instead of the Fourteenth
Amendment, the Plaintiff should still be permitted to recover
fees for work done prior to the Amended Complaint.
The
Plaintiff's privacy claims in the initial complaint and the
Amended Complaint arose from the same facts and consequently,
legal work performed investigating and researching these claims
prior to filing the Amended Complaint was integral to Plaintiff's
ultimate success.
Therefore, the Court will not limit
Plaintiff's fee award to work done after the filing of the
Amended Complaint.
However, the Court finds that Plaintiff's success in this
case was limited when measured against the claims brought, the
defendants who were dismissed and the limited relief obtained and
the fee award will be reduced accordingly.
The chart below
delineates the Plaintiff's claims in his Amended Complaint, the
defendants sued and whether these claims were successful.
This
chart is helpful in determining the rate of Plaintiff's overall
success because it illustrates both the number of Plaintiff's
claims and the number of defendants sued successfully and
unsuccessfully.
36
DEFENDANT
VIOLATION OF
§ 1983 PRIVACY
Twp. of South Harrison
Survived summary
judgment
Dismissed with
prejudice on
summary judgment
Survived summary
judgment
Survived summary
judgment
Jeannine Campbell
Dismissed via
stipulation of
dismissal
Dismissed via
stipulation of
dismissal
N/A
Dismissed via
stipulation of
dismissal
Dismissed with
prejudice on
summary judgment
Dismissed with
prejudice on
summary judgment
N/A
Dismissed with
prejudice on
summary judgment
Gary Spinner and
James McCall
Individual
capacity claims
dismissed with
prejudice on
summary judgment;
Official capacity
claims survived
summary judgment
Dismissed with
prejudice on
summary judgment
N/A
Individual capacity
claims dismissed
with prejudice on
summary judgment;
Official capacity
claims survived
summary judgment
Warren Mabey
Dismissed with
prejudice on
summary judgment
Dismissed with
prejudice on
summary judgment
N/A
Dismissed with
prejudice on
summary judgment
Colleen Bianco
VIOLATION OF 14TH
AMENDMENT DEFAMATION
37
§ 1983 MUNICIPAL
LIABILITY AGAINST
SOUTH HARRISON
N.J. STATE
CONSTITUTION
The Plaintiff's right to privacy claim and defamation claim arose
from two distinct sets of facts.
The Plaintiff's right to privacy
claim arose specifically from the public disclosure of his social
security number by Defendants McCall and Spinner.
The Plaintiff's
defamation claim dealt more broadly with the Defendants' assertions
that Plaintiff was a hacker who lied to law enforcement and breached
the Township network.
This is sufficiently distinct from the public
disclosure of Plaintiff's social security number that a failure to
reduce the lodestar would overcompensate the work reasonably necessary
to achieve Plaintiff's limited success.
Further, Plaintiff's amended complaint alleged claims against six
defendants: Colleen Bianco, Jeannine Campbell, Warren Mabey, James
McCall, Gary Spinner and the Township of South Harrison.
Plaintiff's
right to privacy claim was ultimately successful only against the
Township, and McCall and Spinner in their official capacities.
The
remaining claims against McCall and Spinner as well as all claims
against Bianco and Mabey were dismissed with prejudice on summary
judgment.
A voluntary stipulation of dismissal was filed as to the
claims against Jeannine Campbell. [Docket Item 77.]
Accordingly,
Plaintiff's success when measured by the number of parties whose claims
remained viable was also limited, and counsel's efforts to keep claims
alive were unsuccessful except for that involving disclosure of
personal identifiers.
38
The Court must decide what percentage reduction is appropriate to
properly reflect Plaintiff's limited success in light of these factors.
Defendants' suggestion of a 90% reduction is inappropriate because it
minimizes the three-year litigation history of the case as well as
Plaintiff's ultimate success on his privacy claim, which was at least
somewhat interrelated with the many unsuccessful claims.
The Court finds a fee reduction of 35% is appropriate.
Plaintiff's right to privacy claim and Monell claim were approximately
half of the Amended Complaint and Plaintiff was successful against
three of the six defendants.
In addition, while both claims relied on
different facts, the facts arose from the same general occurrence and
discovery was not easily divisible by claims or parties.
The fee
reduction should also reflect the degree to which the amended complaint
cast a rather broad net and came up with few fish.
Consequently, a 35%
reduction is appropriate and properly reflects Plaintiff's degree of
success.
C.
Summary and Estimated Fee
The Plaintiff is the prevailing party in this litigation and is
entitled to an award of reasonable attorney's fees under 42 U.S.C. §§
1983 and 1988.
Special circumstances do not exist which would make an
award of fees unjust or warrant denial of attorney's fees in this case.
Plaintiff's counsel seek compensation for a total of 288.47 hours with
274.32 hours performed by Mr. Aggarwal and 14.15 hours performed by Mr.
Buckman.
39
The Court finds that Mr. Buckman's reasonable hourly rate as a
partner is $400 and Mr. Aggarwal's reasonable hourly rate as an
associate is $225.
A total of 248.24 hours was reasonably expended and
sufficiently documented by Plaintiff's counsel to justify a fee award.
The Defendants dispute the remaining 40.23 hours billed by Mr.
Buckman and Mr. Aggarwal.
The Court finds that 12.03 hours of these
contested billing entries were reasonably expended.
Ten hours
representing Mr. Aggarwal's travel must be compensated at 50% of his
hourly rate which is $112.50 per hour.
The remaining 18.2 hours, of
which 14.55 hours was spent by Mr. Aggarwal and 3.65 hours was spent by
Mr. Buckman, must be stricken as the billing entries are too vague to
support a fee award.
This results in Mr. Aggarwal being compensated for 249.77 hours at
$225 per hour ($56,198.25).
Mr. Aggarwal will also be compensated for
his travel time of 10 hours at $112.50 per hour ($1,125.00).
Mr.
Buckman will be compensated for 10.5 hours at $400 per hour ($4,200).
This results in a lodestar amount of $61,523.25.
This lodestar must next be reduced to reflect Plaintiff's degree
of success.
After reviewing the litigation history and billing records
of this case, a reduction of 35% is warranted to reflect Plaintiff's
limited success in this litigation.
of $39,990.11.
40
This results in a total fee award
IV. CONCLUSION
For the reasons discussed herein, Plaintiff's motion for attorney
fees will be granted.
$39,990.11.
Plaintiff's counsel will be awarded a fee of
June 27, 2013
Date
The accompanying Order will be entered.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
41
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