DEPIETRO et al v. CONSOLIDATED RAIL CORPORATION et al

Filing 79

OPINION filed re. 26 . Signed by Judge Robert B. Kugler on 10/9/2015. (drw)

NOT FOR PUBLICATION

(Doc. No. 26)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
William J. EINHORN,
:
:
:
Plaintiff,
:
:
v.
:
:
DIMEDIO LIME CO.,
:
:
Defendant.
:
___________________________________ :

Civil No. 13–3634 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon the Plaintiff William J. Einhorn’s Motion for
Attorneys’ Fees and Costs (Doc. No. 26) under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1132(g)(2).1 For the reasons stated herein, Plaintiff’s Motion is
GRANTED.
I.

BACKGROUND
On November 10, 2014, the Court granted Plaintiff’s motion for summary judgment and

entered an Order of Judgment in favor of Plaintiff against Defendant Dimedio Lime Co.,
stemming from Defendant’s withdrawal from the Teamsters Pension Trust Fund of Philadelphia
and Vicinity. Nov. 10, 2014 Order, at 1 (Doc. No. 20). In addition to withdrawal liability, the
Order granted Plaintiff reasonable attorneys’ fees and costs pursuant to 29 U.S.C. § 1132(g), and
directed Plaintiff to submit an affidavit in compliance with Local Rule 54.2 to recover the

Plaintiff is the Administrator of the Teamsters Pension Trust Fund of Philadelphia and Vicinity.

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requested fees. Id. at 2. On November 19, 2014, Plaintiff moved for attorneys’ fees and costs,
seeking $25,950 in attorneys’ fees and $825.56 in costs (Doc. No. 21). The Court denied
Plaintiff’s motion without prejudice, finding that Plaintiff failed to make a prima facie showing
that the rate charged was reasonable. Apr. 14, 2015 Op. at 3 (Doc. No. 24). On May 1, 2015,
Plaintiff filed this Motion for attorneys’ fees and costs, again seeking $25,950 in attorneys’ fees
and $825.56 in costs. Pl.’s Motion, Decl. of Matthew D. Areman, Esq. ¶ 10 (“Decl.”).
II.

DISCUSSION
A.

Attorneys’ Fees

The Supreme Court has held that “the most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
product of this calculation is called the lodestar, which is presumed to yield a reasonable fee.
Washington v. Philadelphia Cnty. Court of Common Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996)
(citing City of Burlington v. Dague, 505 U.S. 557 (1992)). The prevailing party seeking
attorney’s fees bears the burden of establishing their reasonableness by submitting evidence
supporting the hours worked and the rates claimed. Rode v. Dellarciprete, 892 F.2d 1177, 1183
(3d Cir. 1990) (citing Hensley, 461 U.S. at 433). The burden then shifts to the party opposing the
attorneys’ fees request to contest either the reasonableness of the hours or the rates claimed.
Apple Corps. Ltd. v. Int’l Collectors Soc., 25 F. Supp. 2d 480, 485 (D.N.J. 1998). Once the
opposing party has met this burden, “the court has wide discretion” to determine whether the
number of hours reported are reasonable, and whether the claimed rates are in accordance with
prevailing market rates in the relevant community. Rode, 892 F.3d at 1183 (citing Blum v
Stenson, 465 U.S. 886, 895 (1984)). Even an unopposed fee application must demonstrate the

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reasonableness of the requested fees. See Spectrum Produce Distrib., Inc. v. Fresh Mktg., Inc.,
Civ. No. 11–6368, 2012 WL 2369367, at *1, *4 (D.N.J. June 20, 2012).
1.

Reasonable Hourly Rate

A reasonable hourly rate “is to be calculated according to the prevailing market rates in
the relevant community.” Rode, 892 F.2d at 1183. Counsel is required to establish, by
satisfactory evidence beyond its own affidavits, that the rates charged reflect those prevailing in
the region for similar services by lawyers with comparable skill, experience, and reputation.
Washington, 89 F.3d at 1035. Counsel’s burden may be satisfied by the submission of affidavits
of non-party attorneys with personal knowledge of the hourly rates customarily charged in the
relevant community, or by third party fee structures. See id. at 1036; Spectrum Produce, 2012
WL 2369367, at *4 n.4. Here, the only evidence presented by counsel besides his own affidavit
is the 2014 Philadelphia Community Legal Services (“CLS”) survey of Philadelphia lawyer
attorney’s fees. Decl. Attachment A.
The Third Circuit has relied on CLS figures to establish a reasonable hourly rate where
the parties “offer very little evidence pertaining thereto.” See Maldonado v. Houstoun, 256 F.3d
181, 187–88 (3d Cir. 2001); cf. D'Orazio v. Washington Twp., 501 Fed. App’x. 185, 187 (3d Cir.
2012) (noting that the Third Circuit did not “adopt” the CLS fee schedule in Maldonado, but
“used it in one instance.”). The District of New Jersey has likewise approvingly utilized the CLS
fee schedule in various circumstances. See, e.g., Spectrum Produce, 2012 WL 2369367, at *4–5
(applying CLS figures sua sponte to reduce requested fees where counsel failed to provide
evidence of reasonableness besides their own conclusory statements). The Eastern District of
Pennsylvania has noted that the CLS survey may be relied upon in cases where there is an
absence of sufficient evidence or the absence of objection. See, e.g., Damian J. v. Sch. Dist. of
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Philadelphia, Civ. No. 06–3866, 2008 WL 1815302, at *2 n.7 (E.D. Pa. Apr. 22, 2008), aff'd,
358 Fed. App’x. 333 (3d Cir. 2009) (collecting cases).
Because Defendant has not objected to Plaintiff’s use of the CLS survey, the Court finds
its use is appropriate in this matter. Counsel avers that the underlying case was handled by two
attorneys, Stephen Richman, Esq., and Matthew D. Areman, Esq. Decl. ¶¶ 11–12. Counsel states
that Mr. Richman is managing partner with the law firm Markowitz and Richman, has been
practicing for forty-seven years, and regularly handles ERISA and withdrawal liability cases. Id.
¶¶ 5, 12. The CLS fee schedule indicates that the general rate for attorneys with more than
twenty-five years of experience is $600 to $650 per hour. Decl. Attachment A. Despite his
experience, Mr. Richman billed at $300 per hour on this matter. Decl. ¶ 12. Therefore, the Court
finds that Plaintiff’s requested rate of $300 is reasonable for Mr. Richman.
Regarding Mr. Areman, counsel certifies that he is a partner with the firm Markowitz and
Richman, regularly handles ERISA withdrawal liability cases, and has twelve years of
experience as an attorney. Id. ¶¶ 1, 4, 11. The CLS schedule indicates that attorneys with
between eleven and fifteen years of experience generally bill between $350 and $520 per hour.
Decl. Attachment A. In this matter, Mr. Areman billed at $300 per hour. Decl. ¶ 11.2 The Court
finds that Plaintiff’s requested rate of $300 is reasonable for Mr. Areman.
2.

Reasonableness of Hours Expended

To calculate whether the hours expended by an attorney were reasonable, it is the court’s
responsibility to “review the time charged, decide whether the hours set out were reasonably
expended for each of the particular purposes described and then exclude those that are

Mr. Areman also cites several ERISA cases where he was awarded attorney’s fees at the rate of
$300 per hour, including by this Court. See Decl. ¶ 11 (citing, e.g., Einhorn v. Highway Safety
Sys., Inc., Civ. No. 13–2021, 2015 WL 5567303, at *4 (D.N.J. Sept. 22, 2015)).
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‘excessive, redundant, or otherwise unnecessary.’” Maldonado, 256 F.3d at 184. Counsel
seeking attorney’s fees “must include fairly definite information as to hours devoted to various
general activities[.]” Evans v. Port Auth. of New York & New Jersey, 273 F.3d 346, 361 (3d Cir.
2001). In reviewing the hours claimed, a court cannot reduce an award sua sponte; there must be
specific objections from the opposing party. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426
F.3d 694, 711 (3d Cir. 2005).
In this matter, counsel sets forth the summary of services rendered and hours billed to
Plaintiff from the work of both Mr. Areman and Mr. Richman. Decl. ¶ 10. Plaintiff requests
compensation for 86.50 hours of attorney work product. Id. Mr. Areman indicates that the fees
sought by counsel relate to the time spent on arbitration, preparation of the Complaint, and
preparation of the motion for summary judgment. Id. The Court finds that 86.50 hours is a
reasonable number of hours expended on this matter.
The 86.50 hours worked, at a rate of $300 per hour, yields a lodestar of $25,950.00. The
Court finds $25,950.00 in attorneys’ fees to be reasonable for this matter.
B.

Costs

Plaintiff also seeks costs in the amount of $825.56. These costs include a filing fee,
service of process, travel costs, a corporate records search, and photocopies and postage. The
Court finds that these costs are reasonable.
III.

Conclusion
For the foregoing reasons, Plaintiff’s Motion is GRANTED. Defendant shall pay

Plaintiff $25,950.00 in attorneys’ fees and $825.56 in costs.

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Dated:

10/09/2015

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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