PORT DRIVERS FEDERATION 18, INC. et al v. ALL SAINTS EXPRESS,INC. et al

Filing 87

AMENDED OPINION AND ORDER directing All Saints to pay pltfs. $278,837.40 in attorneys' fees and costs Signed by Judge William H. Walls on 08/15/2011. (nr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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: AMENDED OPINION and ORDER
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Civ. No. 09-868 (WHW)
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PORT DRIVERS FEDERATION 18, INC.,
FLORENCIO HERNANDEZ, JULIAN
HERNANDEZ, JOSE LANDA, NELSON
RODRIGUEZ, and JUAN MARTE,
Plaintiffs,
v.
ALL SAINTS and ST. GEORGE
WAREHOUSE, INC.,
Defendants.

Walls, Senior District Judge
Port Drivers Federation 18, Inc., Florencio Hernandez, Julian Hernandez, Jose Landa,
Nelson Rodriguez, and Juan Marte claim that they are entitled to attorneys‟ fees and costs from
defendants. Pursuant to Rule 78.1 of the Local Rules, the motions are decided without oral
argument. The motion is granted with the requested amount reduced.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are independent owners and operators of trucks who lease their trucking
equipment and driving services to defendant All Saints. Plaintiffs filed a complaint alleging that
the leases that they entered into with All Saints were in violation of the federal Truth in Leasing
Regulations. Both plaintiffs and defendants moved for summary judgment. On October 18,
2010, the Court granted summary judgment in favor of the plaintiffs‟, finding that the leases
violated: (1) the compensation provision of 49 C.F.R. § 376.12(d), (2) the compensation
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documentation provision of 49 C.F.R. § 376.12(g), (3) the signed lease of a specific duration
provision of 49 C.F.R. §§ 376.11(a)-(b) and 376.12(b), (4) the workers‟ compensation insurance
documentation provision of 49 C.F.R. § 376.12(j)(2), and (5) the chargeback provision of 49
C.F.R. § 376.12(h). The Court also permanently enjoined All Saints “from violating the
conditions and requirements of the Regulations.” Port Drivers Fed‟n 18, Inc. v. All Saints
Express, Inc., No. 09-868, 2010 WL 4116500, at *18 (D.N.J. Oct. 18, 2010). St. George was not
found liable.
Plaintiffs later requested that the Court hold All Saints in contempt contending that,
despite the October 18, 2010 order, All Saints had failed to comply with the Regulations. The
Court held a hearing on January 25, 2011. The Court suggested only a few minor changes to the
leases and declined to hold All Saints in contempt.
Plaintiffs‟ counsel now moves for attorneys‟ fees and costs. Plaintiffs‟ counsel claims to
have spent more than 1,700 hours on this matter and requests fees in excess of $760,000.

STANDARD OF REVIEW
“Under the „American Rule,‟ parties to litigation are to pay their own attorneys‟ fees,
absent statutory authority and a court order providing otherwise.” People Against Police
Violence v. City of Pittsburgh, 520 F.3d 226, 231 (3d Cir. 2008). Concerning Federal Truth in
Leasing Regulation cases, “The district court shall award a reasonable attorney‟s fee under this
section” to the prevailing party. 49 U.S.C. § 14704(e). Litigants are considered prevailing
parties if “they succeed on any significant issue in litigation which achieves some of the benefits
the parties sought in bringing suit,” and they cause a “court-ordered change in the legal
relationship” between the parties. People Against Police Violence, 520 F.3d at 232 (quotations
and citations omitted).
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A Court determines whether the prevailing party‟s request for attorneys‟ fees is
reasonable by calculating the lodestar. This is determined by multiplying the “number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” McKenna v. City
of Philadelphia, 582 F.3d 447, 455 (3d Cir. 2009) (citing Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)). Hours that are “excessive, redundant, or otherwise unnecessary” are not reasonably
expended on the litigation and must be excluded from the lodestar calculation. Pennsylvania
Envtl. Def. Fund v. Canon-McMillan Sch. Dist., 152 F.3d 228, 231 (3d Cir. 1998). The Court
must also “reduce the hours claimed by the number of hours spent litigating claims on which the
party did not succeed, that were distinct from the claims on which the party did succeed, and for
which the fee petition inadequately documents the hours claimed.” McKenna, 582 F.3d at 455
(citing Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001)).
DISCUSSION
A. Prevailing Party
The Third Circuit applies a two part test to determine prevailing party status. The 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.” P.G. v. Brick Twp. Bd. of Educ., 124 F. Supp. 2d 251, 259 (D.N.J. 2000) (citation
omitted).
The first prong of the test is examined by comparing the relief sought to the relief
obtained. Id. “[P]laintiffs will be prevailing parties even though the relief they obtained is not
identical to the relief they specifically demanded, as long as the relief obtained is of the same
general type.” Inst. Juveniles v. Sec‟y of Pub. Welfare, 758 F.2d 897, 911 (3d Cir. 1985). Here,
plaintiffs sought injunctive and declaratory relief. The Court issued a declaratory judgment and

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an injunction similar in terms to the requested injunction concerning defendant All Saints‟
violation of the Truth in Leasing Regulations. The Court, however, did not find St. George
liable, find any support for plaintiffs‟ retaliation claims and denied the plaintiffs‟ request that
defendants be held in contempt. Given that the majority of plaintiffs‟ claims centered on a
determination that All Saints had entered into noncompliant leases, plaintiffs have obtained relief
on a significant claim.
The Court also finds a causal connection between the defendants drafting and utilizing
leases that comply with the Truth in Leasing Regulations and the Court‟s October 18, 2010,
order. The litigation was a “material contributing factor in bringing about the events that
resulted in the obtaining of the desired relief” because defendants did not voluntarily alter their
leases. Metro. Pittsburgh Crusade for Voters v. City of Pittsburgh, 964 F.2d 244, 250 (3d Cir.
1992) (citation omitted).
Plaintiffs have satisfied the two prongs of the prevailing party test, and the Court now
considers whether their requested attorneys‟ fees and costs are reasonable.
B. Hourly Rate
Plaintiffs claim that the hourly rates they have used to calculate their requested attorneys‟
fees are reasonable. Plaintiffs have been represented by William McGuire and Grant McGuire of
the law firm Tompkins, McGuire, Wachenfeld & Barry LLP. Grant McGuire‟s hourly billing
rate is $400 and William McGuire‟s billing rate is $595. Plaintiffs have also been represented by
a number of lawyers at The Cullen Law Firm. The billing rates of these attorneys range from
$410 to $475 per hour. The billing rate of Karina Arias, a paralegal at The Cullen Law Firm, is
$130 per hour.1

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While the defense claims that paralegal fees are non-compensable because “the salary expense for paraprofessional
and accountant is overhead; it is not an expense for which an independent fee allowance is made,” (Def. Br. at 5,)

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The prevailing party bears the burden of documenting the applicable hourly rate. In re
Tutu Wells Contamination Litig., 120 F.3d 368, 391 (3d Cir. 1997). To do this, he must
establish “the community billing rate charged by attorneys of equivalent skill and experience
performing work of similar complexity.” Evans v. Port Auth. of New York and New Jersey, 273
F.3d 346, 360-61 (3d Cir. 2001). This burden is traditionally satisfied by the submission of “the
affidavits of other attorneys in the relevant legal community, attesting to the range of prevailing
rates charged by attorneys with similar skill and experience.” P.G. v. Brick Twp. Bd. of Educ.,
124 F. Supp. 2d 251, 261 (D.N.J. 2000) (citation omitted).
In this case, plaintiffs have not submitted any affidavits of attorneys in the relevant legal
community. Instead, concerning the lawyers of The Cullen Law Firm, plaintiffs rely on the
Laffey Matrix as the basis for the reasonableness of their charged rate. The Laffey Matrix is
published by the Civil Division of the United States Attorneys‟ Office for the District of
Columbia. It is used in cases in the District of Columbia where statutes foresee fee-shifting of
attorneys‟ fees. The rates charged by The Cullen Law Firm mirror the suggested fees listed in
the Laffey Matrix. The Third Circuit, however, has cautioned against accepting the Laffey
Matrix because it has found that “any index that is updated based on a statistical measure of
inflation - rather than regular recalibration in light of prevailing rates - will tend to diminish in
accuracy over time. For this reason, district courts in this Circuit should be assiduous in

“[b]ecause paralegals charge hourly rates and assist the lawyers with their legal work, their fees are properly
considered part of „legal fees.‟” Microsoft Corp. v. United Computer Res. of New Jersey, Inc., 216 F. Supp. 2d 383,
388 n.2 (D.N.J. 2002).
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In their reply papers The Cullen Law Firm claims that they are not seeking “hourly rates based on the prevailing
rates in Washington, D.C.” (Pl. Rep. Br. at 7.) If this is true, and The Cullen Law Firm seeks fees that are
reasonable under New Jersey standards, the Court can conceive of no reason why they submitted the Laffey Matrix
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(which plaintiffs offer “as evidence of prevailing market rates for litigation counsel in the Washington, D.C. area.”

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evaluating fee requests in light of all the evidence.” Interfaith Comm. Org. v. Honeywell Intern.,
Inc., 426 F.3d 694, 710 n.14 (3d Cir. 2005) (emphasis in the original).2
The plaintiffs have not established why the prevailing rate charged in Washington, D.C.
should be used as opposed to the prevailing hourly rate of New Jersey. “Under normal
circumstances, a prevailing party‟s attorneys should be compensated based on market rates in the
vicinage of the litigation.” Id. at 699. In this case, that would be New Jersey and not
Washington, D.C. While the Third Circuit has accepted the prevailing market rate of another
jurisdiction as the appropriate rate for reimbursement, it has only done so where “the prevailing
party showed that [the case] required the particular expertise of counsel from another vicinage,
or that local counsel were unwilling to take on the litigation.” Id.
Plaintiffs have not presented any evidence showing that they conducted a significant
search for lead counsel able to handle this case in New Jersey. They do not speak to this issue at
all in their moving papers and merely reference the declaration of Melanio Pimentel, the director
of Port Drivers Federation 18, in their reply brief. Pimentel stated that “[t]here are very few
lawyers with experience in motor carrier law. Those that do have experience almost always
represent motor carriers who can afford to pay their fees.” (Pl. Ex. A to Order to Show Cause,
Pimentel Dec. ¶5.) This is nothing more than a generalized statement that lawyers prefer
certainty in billing. This in no way shows that plaintiffs conducted any search for counsel in
New Jersey – let alone a meaningful one, or that they were unable to find competent counsel in

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In their reply papers The Cullen Law Firm claims that they are not seeking “hourly rates based on the prevailing
rates in Washington, D.C.” (Pl. Rep. Br. at 7.) If this is true, and The Cullen Law Firm seeks fees that are
reasonable under New Jersey standards, the Court can conceive of no reason why they submitted the Laffey Matrix
(which plaintiffs offer “as evidence of prevailing market rates for litigation counsel in the Washington, D.C. area.”
(Apr. 21, 2011, Decl. Paul D. Cullen, Sr., ¶ 8), or why they claimed that their requested fees were reasonable “by
Washington standards.” (Pl. Br. at 12.) Regardless, the plaintiffs have not established why the prevailing rate
charged in Washington, D.C. would be used as opposed to the prevailing hourly rate of New Jersey.

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this vicinage. It is very possible that there are attorneys with experience in this field in New
Jersey, or competent local counsel who would have agreed to represent the plaintiffs and who
could quickly be brought up to speed. Competent New Jersey counsel were in fact engaged, but
used sparingly, primarily to expedite pro hac vice admissions of The Cullen Law Firm members.
The statements put forward do not prove otherwise and do not establish that local counsel were
unwilling to take on this litigation. Similarly, plaintiffs do not claim that this case “required the
particular expertise of counsel from another vicinage.” Interfaith Comm. Org., 426 F.3d at 699.
This case involved the application of a straightforward federal law, not interpretation of laws of
another locality where outside counsel might be necessary. Because plaintiffs have not satisfied
either exception, the proper community rate is that of New Jersey. See Nat. Elec. Ben. Fund v.
Starko Elec. Servs., Inc., No. 06-1446, 2010 WL 1049980, at *3 n.4 (D.N.J. Mar. 16, 2010).
As for Grant and William McGuire, the plaintiffs say nothing more to justify the listed
rates than “the attorney‟s customary billing rate is the proper starting point for calculating fees.”
(Pl. Br. at 11.) In his declaration, Grant McGuire did not provide any information concerning the
usual and customary hourly rates for New Jersey, nor did he supply affidavits from other
practitioners in northern New Jersey attesting to their usual and customary rates. That these
lawyers charge a certain amount in no way establishes “the community billing rate charged by
attorneys of equivalent skill and experience performing work of similar complexity.” Evans v.
Port Auth. of New York and New Jersey, 273 F.3d 346, 360-61 (3d Cir. 2001).
After failing to properly present evidence of appropriate billing rates in their opening
papers, plaintiffs have submitted a survey of attorney billing produced by The National Law
Journal. Plaintiffs compare their requested hourly rates to the median billing rates of two of New

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Jersey‟s largest and most respected firms in an effort to show their reasonableness.3 On August
9, 2011, the Court conducted a hearing to allow plaintiffs to present evidence to meet their
burden of documenting the applicable hourly rate. In re Tutu Wells Contamination Litig., 120
F.3d 368, 391 (3d Cir. 1997). Plaintiffs did not present any new evidence, but claimed that this
case presented novel issues because the defendants put forth a jurisdictional defense and
plaintiffs sought injunctive relief. There is nothing novel about an injunction, and while
plaintiffs noted that they had never dealt with a jurisdictional defense to a federal Truth in
Leasing case, they did not explain how such a defense was particularly arduous.
Plaintiffs also reiterated the arguments put forth in their papers and their comparison to
Gibbons P.C. and McCarter & English LLP. This comparison is not availing. Gibbons and
McCarter & English, two of New Jersey‟s most prestigious firms, are routinely called upon to
work on complex and novel legal issues and their billing rates reflect this. Plaintiffs have failed
to establish that in this case they were “performing work of similar complexity,” as attorneys of
Gibbons and McCarter & English. Evans, 273 F.3d at 360-61. Certainly, requesting nearly $200
an hour more than an average Gibbons or McCarter & English attorney to act as local counsel for
a routine case with no novel legal issues is unreasonable.
An examination of hourly rates permitted in fee shifting cases in New Jersey shows a
good deal of variation from experienced attorneys. The reasonable fees, however, are practically
uniformly less than those requested by plaintiffs‟ counsel. See Alliance for Disabled in Action,
Inc. v. Renaissance Enter., Inc., 2010 WL 2990846, at *12 (N.J. Super. App. Div. July 30, 2010)
(finding $350 was a reasonable fee for an attorney with 34 years of experience); In re Costino,
2010 WL 4007949, at *12 (N.J. Super. App. Div. Oct. 12, 2010) (concluding that $175 was a
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It is notable that plaintiffs fail to reference the average billing rate of the only other law firm in this vicinage with
average attorney billing rates available, McElroy, Deutsch, Mulvaney & Carpenter LLP, which bills, on average,
$210 per hour.

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reasonable hourly rate for a deputy attorney general with more than 10 years experience); Crespo
v. City of Newark, 2010 WL 4117022, at *5 (N.J. Super. App. Div. May 4, 2010) (stating that
the hourly rate charged by attorneys in the northeastern counties of New Jersey ranges from $250
to $400 per hour); Ridley v. Costco Wholesale Corp., 217 F. App‟x 130, 139 (3d Cir. 2007)
(holding that $375 was “a fair and reasonable rate for someone of [the attorney‟s] experience
because he was “undeniably an experienced litigator.”). Indeed, the Third Circuit found that an
hourly rate of $550 would put an attorney “among the few top-earning partners in New Jersey.”
Tenafly Eruv Ass‟n Inc. v. Borough of Tenafly, 195 F. App‟x 93, 98 (3d Cir. 2006). Plaintiffs
have not met their “burden of establishing . . . [the reasonableness of their requested] hourly
rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). While many of plaintiffs‟ counsel are
experienced, this case was not of sufficient complexity or novelty to warrant the requested fees.
Considering fees granted in other cases, the average billing at Gibbons, McCarter & English, and
McElroy, and the skill required to litigate this case, the Court finds that a rate of $475 is a
reasonable hourly rate for William McGuire, a rate of $350 is reasonable for Paul Cullen, Sr.,
David A. Cohen, Daniel E. Cohen, Randall Herrick-Stare and Joyce Meyers, and a rate of $325
is reasonable for Grant McGuire and Paul Cullen, Jr.
C. Hours Expended
The prevailing party is not necessarily entitled to recover for all of the time it has spent
on a case. Instead, the Third Circuit “requires an attorney to justify the expenditure of time in an
efficient manner consistent with the experience that was reflected in the hourly rate.” Glass v.
Snellbaker, No. 05-1971, 2008 WL 4416450, at *6 (D.N.J. Sept. 23, 2008). As such, the
attorney for the prevailing party should make “a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice

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ethically is obligated to exclude such hours from his fee submission.” City of Riverside v.
Rivera, 477 U.S. 561, 579 (1986) (emphasis added) (citing Hensley v. Eckerhart, 461 U.S. 424,
434 (1983)).
a. The Cullen Law Firm
Plaintiffs claim that recovering their requested $765,846.79 award is appropriate, in part,
because “several similar cases [pursued by The Cullen Law Firm] have ended with plaintiffs‟
claims dismissed.” (Pl. Rep. Br. at 2.) That plaintiffs‟ attorneys were unsuccessful on other
matters has no bearing on whether the amount of time they spent on this matter was reasonable.
And indeed, it was not.
Defense counsel does little to address plaintiffs‟ allegedly unreasonable expenditures of
time, instead stating only that “it is impractical to address and criticize Plaintiffs‟ counsel‟s
billing,” (Def. Br. at 10,) and opting instead to give a few examples of alleged overbilling.
Despite the defense‟s lack of vigor and rigor in examining plaintiffs‟ submission, there are
multiple instances of billing which are patently unreasonable. Plaintiffs‟ counsel claims to have
spent over 1700 hours in their representation in this matter. This is nearly an entire year of legal
billing for a case involving only straightforward legal issues. Their submission is particularly
unreasonable because this case involved legal issues that plaintiffs have previously addressed in
numerous similar proceedings in other courts. See Owner-Operator Indep. Drivers Ass‟n, Inc. v.
United Van Lines, LLC, No. 06-219 (E.D. Mo.); Owner-Operator Indep. Drivers Ass‟n, Inc. v.
Swift Transp. Co., No. 05-1423 (D. Ariz.); Owner-Operator Indep. Ass‟n v. Landstar Sys., Inc.,
No. 02-1005 (M.D. Fla.); Owner-Operator Indep. Drivers Ass‟n, Inc. v. C.R. England, Inc., No.
02-950 (D. Utah); Owner-Operator Indep. Drivers Ass‟n, Inc. v. Ledar Transp., No. 00-258
(W.D. Mo.); Owner-Operator Indep. Drivers Ass‟n, Inc v. Mayflower Transit, Inc., No. 98-457

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(S.D. Ind.). The Managing Partner of The Cullen Law Firm even touts his firm‟s experience in
this area of law, noting in his declaration that his “firm has represented independent truck owneroperators for the last fifteen years in many cases seeking vindication of owner-operators‟ rights
under the federal Truth-in-Leasing regulations.” (Apr. 21, 2011, Decl. Paul D. Cullen, Sr., ¶ 16).
The firm‟s level of experience in this area underscores the absurdity of the requested fees.
i. Time Spent on Papers
First, attorneys from The Cullen Law Firm claim to have spent over 60 hours drafting and
revising a simple 13-page complaint made up of only 59 paragraphs ranging in length from one
to five sentences. This means that it took counsel over an hour to draft and revise each few
sentences, many of which are boiler plate about the federal Truth in Leasing Regulations, the
basis for jurisdiction and venue, and the names and addresses of the parties. This is utterly
ridiculous given counsel‟s familiarity with cases of this nature. The Court finds that the over 60
hours plaintiffs‟ counsel spent drafting the very basic complaint in this action defies belief.
Because “our cases supply no authority for rewarding non-stop meter running in law offices,”
Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983), the Court shall reduce those hours
to a reasonable time of 10 hours.
The Cullen Law Firm next claims to have spent over 200 hours “research[ing] and
draft[ing] memorandum to show cause why preliminary injunction should not be granted,” and
working on the accompanying declarations. (The Cullen Law Firm‟s Ex. B, p. 2, line 4.) The
brief in support of this motion was 26 pages, and the four declarations total a mere 11 pages. In
light of these numbers, plaintiffs claim that each page required nearly eight hours of legal work.
“It is clear that we may consider the nature and complexity of the legal issues in determining the
reasonableness of the fee request.” Garden State Auto Park Pontiac GMC Truck, Inc. v. Elec.

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Data Sys. Corp., 31 F. Supp. 2d 378, 385 (D.N.J. 1998) (citation omitted). Here, all that counsel
did was address existing Truth in Leasing Regulation case law, and argue that a preliminary
injunction was warranted; this brief did not involve new or unusual applications of law. While
these numbers include some research, they do not reflect reality. The Court reduces these hours
to a more reasonable time of 50 hours.
Plaintiffs also claim to have spent more than 100 hours working on the reply to their
motion for a preliminary injunction and their opposition to defendants‟ motion to dismiss.4
Their submission consists of a straightforward 16-page brief, two certifications, and a number of
exhibits, all of which are screenshots from websites. An experienced attorney, which plaintiffs‟
counsel undoubtedly are in this area, should spend no more than a few hours of research and
writing per page in a case such as this. Furthermore, this brief includes large quotations from
other sources including both parties‟ statements of fact, the Truth in Leasing Regulations, St.
George‟s website, and case law. These large blocks of quotations account for nearly one-third of
the brief. Experienced counsel, working diligently, could have produced this brief in 25 hours,
and the requested hours will be reduced.
Despite the relative simplicity of the legal issues involved, plaintiffs next claim to have
spent over 150 hours working on their motion for summary judgment. This motion totaled 28
pages. The alleged hour total for this brief is especially astounding because plaintiffs appear to
have cut and pasted significant portions of their brief requesting a preliminary injunction into this
brief.5 Excluding these nearly 13 pages of apparently copied text, the brief consisted of only 15
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Because many of The Cullen Law Firm‟s time entries list blocks of time that include work on both of these matters
and fail to address how much time was spent on each individual task, and because plaintiffs consolidated their
response to the Court on these tasks, they are examined together. (See e.g., The Cullen Law Firm‟s Ex. B, p. 8, line
6, “Draft and revise opposition to 12(b)(6) and reply to order to show cause.”)
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“The Leasing Regulations were promulgated as the result of over two decades of legislative and regulatory efforts
to curb abuses and inequitable treatment of owner-operators by carriers.” (Preliminary Injunction Br. at 3.

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pages of new work product. This Court finds it utterly shocking that it would take counsel well
versed in the Truth in Leasing Regulations over 150 hours to produce what amounts to a 15 page
summary judgment brief. This is especially true given that significant portions of this brief are
taken up by footnotes, (see, e.g., Pl. Summary Judgment Br. at 8,) and block quotations, (see,
e.g., Pl. Summary Judgment Br. at 9.) The hours submitted for this motion are “staggering, and
well beyond the pale” and are reduced to 30 hours. Interfaith Comm. Org. v. Honeywell Intern.,
Inc., 426 F.3d 694, 712 (3d Cir. 2005).
The next documents plaintiffs drafted are their reply to defendants‟ opposition to their
motion for summary judgment, and their opposition to defendants‟ summary judgment motion.
Their reply brief is just over 11 pages, yet they claim to have spent nearly 80 hours drafting and
revising it. This is especially surprising because reply briefs may not address new issues, and
much of this reply is a recitation of the arguments put forth in their moving papers. Their
opposition brief, which is just over 24 pages and includes 3 pages of block quotes, took them
nearly 55 hours to complete. Both of these documents also include citations in footnotes that are
the same font as the text of the documents and take up considerable space. Given the
straightforward nature of these papers, the Court finds the reported hours for research and

Permanent Injunction Br. at 1.); “The Leasing Regulations forbid a motor carrier like ASE to haul freight in
equipment it does not own (Plaintiff Drivers‟ trucks) unless there is a written lease agreement meeting the
requirements contained in 49 C.F.R. § 376.12.” (Preliminary Injunction Br. at 2. Permanent Injunction Br. at 13.);
“The courts have consistently found carriers liable… ASE‟s leases fail to clearly state compensation terms in
violation of its unconditional obligations to do so.” (Preliminary Injunction Br. at 10-11. Permanent Injunction Br.
at 17-18.); The lease agreements “entered into between [Defendant] ASE and Plaintiff Drivers …from which rates
and charges are computed”, “on February 17, 2009 … in violation of 49 C.F.R. §376.12(g).” (Preliminary
Injunction Br. at 11-12. Permanent Injunction Br. at 18.); see also workers‟ compensation insurance section.
(Preliminary Injunction Br. at 12-13. Permanent Injunction Br. at 19-20.); see also charge back section.
(Preliminary Injunction Br. at 13-14. Permanent Injunction Br. at 20-21.); see also specific duration section.
(Preliminary Injunction Br. at 15-16. Permanent Injunction Br. at 21-22.); “A [preliminary/permanent] injunction
would further important policy goals of the ICCTA and the [Truth-in-]Leasing regulations.” (Preliminary Injunction
Br. at 22. Permanent Injunction Br. at 26. ); see also public interest section (Preliminary Injunction Br. at 22-23.
Permanent Injunction Br. at 27.) See also section on countervailing harm. (Preliminary Injunction Br. at 23-24.
Permanent Injunction Br. at 25-26.) See also section on retaliation. (Preliminary Injunction Br. at 24-25.
Permanent Injunction Br. at 27-28.)

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drafting are greater than necessary; 12 hours will be allowed for the reply and 30 hours will be
allowed for their opposition.
ii. Time Spent on Hearings/Depositions
The Cullen Law Firm spent nearly thirty hours preparing for a hearing held to discuss the
cross-motions for summary judgment. David Cohen billed 2.5 hours to attend a hearing that
took less than two hours, (ECF No. 62,) while Randall Herrick-Stare billed 5.5 hours to attend
the same hearing and then confer with his clients. (The Cullen Law Firm‟s Ex. B, p. 28, lines 15,
20.) The Court finds that the more than 30 hours spent to have two attorneys prepare for and
attend a less than two hour-long hearing before this Court is excessive. See Illinois Nat‟l Ins.
Co. v. Wyndham Worldwide Operations, Inc., No. 09-1724, 2011 WL 2293334, at *7 (D.N.J.
June 7, 2011) (finding that more than twenty hours spent to prepare for a one hour hearing was
unreasonable). Because “[i]t is unreasonable for two high-priced [attorneys] to expend roughly
[eight] times as long to prepare for a hearing as to attend it,” the Court reduces Cohen‟s billings
to 5 hours of preparation and 1.9 hours to attend the hearing, and reduces Herrick-Stare‟s billings
to 2 hours for preparation and 1.9 hours to attend the hearing. Microsoft Corp. v. United
Computer Res. of New Jersey, Inc., 216 F. Supp. 2d 383, 393 (D.N.J. 2002); see also Apple
Corps. Ltd v. Int‟l Collectors Soc., 25 F. Supp. 2d 480, 491 (D.N.J. 1998) (finding that spending
nearly three times as long to prepare for a hearing as to attend it was unreasonable).
Three lawyers and a paralegal from The Cullen Law Firm next spent nearly 50 hours
preparing for and talking about an allegedly three hour mediation session that only one attorney
attended. Similar to their preparation for the summary judgment hearing, these lawyers have
spent an unreasonable amount of time preparing for this mediation session; they spent nearly 16
times longer preparing for the session than the meeting actually lasted. This mediation session

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took place after the lawyers had filed the complaint, moved for a preliminary injunction and
defended a motion to dismiss. At this point, counsel were well versed in the facts and law
related to this matter and this much preparation was unwarranted. The Court allows three hours
billed for attending the mediation session and five hours for preparation.
During discovery, a number of depositions were taken. Defendants object to the presence
of two attorneys at a deposition. In response, plaintiffs claim that “only one lawyer, Mr. HerrickStare, defended the depositions of the Plaintiffs in this case.” (Pl. Rep. Br. at 9.) Plaintiffs,
however, do not dispute, or attempt to rationalize, the use of two attorneys for the depositions of
Teresa Esteves, Maria Costa and Anthony Perella. Both Herrick-Stare and David Cohen
attended these depositions. Cohen deposed Costa, (Pl. Summary Judgment Mot., Ex. D) while
Herrick-Stare deposed Esteves and Perella. (Pl. Summary Judgment Mot., Exs. B, E.) Cohen
asked no questions during the depositions of Esteves and Perella, and the only question HerrickStare asked in Costa‟s deposition was for clarification. (Pl. Summary Judgment Mot., Ex. D. p.
15, ¶ 21 “What?”) While Cohen billed 8.2 hours to “attend depositions of Teresa Esteves, Marie
Costa and Anthony Perella; confer with RHS re depositions,” (The Cullen Law Firm‟s Ex. E, p.
18, line 16,) Herrick-Stare (RHS) billed 8.2 hours alone to attend the depositions and another
hour to confer with Cohen about them. (The Cullen Law Firm‟s Ex. E, p. 18, line 19.) The
depositions lasted less than 7 hours. (See Pl. Summary Judgment Mot. Exs. B, D, E.) Under any
possible reading of these numbers, these depositions were overbilled. Furthermore, only one
attorney was necessary for each deposition. See Aerogroup Int‟l Inc. v. Ozburn-Hessey
Logistics, LLC, No. 08-4217, 2010 WL 4746246, at *12 (D.N.J. Nov. 15, 2010) (finding that
“the attendance of additional counsel representing the same interests as the attorney actually
participating in a hearing „is wasteful and should not be included in a request for counsel fees

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from an adversary.‟” (citing Apple Corps. Ltd. v. Int‟l Collectors Soc., 25 F. Supp. 2d 480, 489
(D.N.J. 1998)). A total of 8.9 hours is allowed between the two attorneys – 6.9 hours to attend
the depositions, and an hour for each to discuss.
The Cullen Law Firm then claims to have spent over 70 hours preparing for a contempt
hearing. They also billed three hours to attend a hearing that only lasted one hour. (ECF No. 75;
The Cullen Law Firm‟s Ex. E, p. 31, line 29.) This clear overbilling further underscores the
Court‟s belief that plaintiffs have billed an unreasonable number of hours in this case. “An
attorney making a fee application in a statutory fee-shifting case should not be able to use an
outlandish application as an initial bargaining position in the same way that an attorney for a
plaintiff in a personal injury case might make a grossly inflated opening demand in negotiations
for a settlement.” McKenna v. City of Philadelphia, 582 F.3d 477, 457 n.11 (3d Cir. 2009). The
Third Circuit has held that a prevailing party in a contempt proceeding may be reimbursed for
reasonable attorneys‟ fees and costs incurred in demonstrating a contemnor‟s violations. Robin
Woods Inc. v. Woods, 28 F.3d 396, 400-01 (3d Cir. 1994). Here, however, plaintiffs did not
prevail at the contempt hearing and will not be compensated.
Unsuccessful Claims
Where the plaintiffs are not successful on all of their claims “ the Court face[s] a difficult
task in sorting out the work that was fairly compensable, which could include only the work that
reasonably was expended in pursuit of the sole successful claim. Moreover, a plaintiff has the
burden to establish „that the time spent pursuing the unsuccessful claims contributed in any way
to [his] success on his remaining claims.‟” McKenna v. City of Philadelphia, 582 F.3d 447, 457
(3d Cir. 2009) (quoting Hensley v. Eckerhart, (461 U.S. 424, 435 1983)).

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Here, because plaintiffs‟ retaliation claim and claims against St. George‟s Warehouse do
not share “a common core of facts” with the successful claims and are not based on “related legal
theories,” the Court excludes hours plaintiffs devoted to these claims. Id. at 457. Plaintiffs‟
retaliation claim involved events that allegedly transpired after plaintiffs and defendant All
Saints Express entered into the contested leases. Similarly, the claims against St. George‟s
Warehouse rely solely on facts concerning the business relationship between St. George and All
Saints, facts unrelated to whether All Saints, the party that actually entered into leases with the
plaintiffs, violated the Federal Truth in Leasing Regulations. The legal theories relied upon were
also distinct. Plaintiffs claimed that St. George was liable through tortured arguments alleging
affiliation and alter-ego. These theories of liability, unsupported by the facts in this case, are
distinct from those put forth against All Saints.
Plaintiffs do not attempt to explain how the time they spent on their unsuccessful claims
assisted them in prevailing on their other claims. They assert that “even if [they] had prevailed
on their retaliation claim and in holding St. George liable, Plaintiffs‟ relief would not have
materially increased.” (Pl. Rep. Br. at 6.) It follows then, that this discussion is irrelevant to the
Court‟s discussion of reasonable fees. Plaintiffs also spent 3.05 hours working on a New Jersey
workers‟ compensation claim that never materialized; this time is also excluded because of its
irrelevance.
a. Travel Time
“Generally, time spent in travel is compensable at the attorney‟s rate if legal work is
being performed during travel.” Glass v. Snellbaker, No. 05-1971, 2008 WL 4416450, at *9
(D.N.J. Sept. 23, 2008) (citing Planned Parenthood of Cent. N.J. v. Attorney Gen. of N.J., 297
F.3d 253, 267 (3d Cir. 2002)). Here, plaintiffs have presented no evidence that any legal work

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was performed during any of their travel time. Indeed, their time entry descriptions seem to
refute any possibility that any legal work was performed. (See The Cullen Law Firm‟s Ex. B p.
4, line 39; p. 10, 21. “Trip to Newark.” or “Travel from Washington to Westfield, NJ to attend
mediation.”)
Even when no work is completed, travel time is usually compensable in New Jersey, but
not at an attorney‟s maximum billing rate See Erhart v. City of Atlantic City, No. 00-6209,
2006 WL 2385061, at *8 (D.N.J. Aug. 17, 2006) (holding that travel should be calculated at onehalf of the reasonable hourly rate). Here, travel was only necessary because plaintiffs selected
counsel from Washington, D.C. As discussed, plaintiffs have not demonstrated to this Court that
competent counsel from this forum was unavailable. “Under normal circumstances, a party that
hires counsel from outside the forum of the litigation may not be compensated for travel time,
travel costs, or the costs of local counsel.” Interfaith Comm. Org. v. Honeywell Intern., Inc., 426
F.3d 694 (3d Cir. 2005). Accordingly, The Cullen Law Firm is not entitled to reimbursement for
$46,803.50 that its attorneys billed planning trips and while traveling between Washington, D.C.
and New Jersey.6

6

Some of the travel entries submitted include both time spent traveling and time spent at meetings. (See The Cullen
Law Firm‟s Ex. B., p.1, line 33.) (“Travel to N.J.; attend PDF-18 meeting; prepare engagement letters for new
clients; and travel to D.C.”) Because The Cullen Law Firm billed between 3 and 6.6 hours for the trip between
Washington D.C. and New Jersey, the Court will estimate that each of these trips took 4.5 hours.

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Project

Allowed Fee Reduction Disallowed Fee Reduction for Total Fee
Hours
for Allowed
Hours
Disallowed Hours8 Reduction
7
Hours
10 hrs
$920.00
63.3 hrs
$28,691.50
$29,611.50

Complaint
Preliminary
Injunction
Preliminary
Injunction Reply/
Motion to Dismiss
Summary
Judgment
Summary
Judgment
Opposition
Summary
Judgment Reply
Summary
Judgment Hearing
Mediation

50 hrs

$3,000.00

163.4hrs

$69,738.50

$72,738.50

25 hrs

$2,043.00

101.1 hrs

$47,011.50

$49,054.50

30 hrs

$3,366.00

123.5 hrs

$57,427.50

$60,793.50

30 hrs

$3,750.00

49.4 hrs

$23,465.00

$27,215.00

12 hrs

$1,500.00

40.8 hrs

$19,380.00

$20,880.00

10.8 hrs

$1,350.00

28.6 hrs

$13,585.00

$14,935.00

8 hrs

$920.00

43.85 hrs

$16,019.25

$17,521.25

Depositions
Contempt
St. George‟s
Warehouse
Retaliation
Workers‟
Compensation
Travel
Pro Hac Vice
Other Tasks

8.9 hrs
0 hrs
0 hrs

$1,023.50
$0
$0

9.5 hrs
74.4 hrs
44.7 hrs

$4,417.50
$35,340.00
$20,755.50

$5,441.00
$35,340.00
$20,655.50

0 hrs
0 hrs

$0
$0

38.5 hrs
12.05 hrs

$17,375.00
$5,603.25

$17,375.00
$5,603.25

122.5 hrs
1.1 hrs
0 hrs

$47,547.50
$473.00
$0

$47,547.50
$473.00
$52,966.50

0 hrs
$0
0 hrs
$0
529.3 hrs $52,966.50

Overall Reduction = $478,151.00

b. Tompkins, McGuire, Wachenfeld & Barry LLP
Defendants claim that local counsel‟s request for attorneys‟ fees and costs should be

7

Because the requested hourly rate was reduced, even the hours that were reasonably expended on each task result
in a reduction of the fee award.
8

While counsel uses an average fee charged of $431 as the lodestar fee, (see Pl. Rep. Br. at 7,) the Court examined
the actual rate The Cullen Law Firm charged for given tasks. As such, in reducing the requested amount for
attorneys‟ fees, the Court disallowed hours at the hourly rate The Cullen Law Firm charged and not at an average
rate.

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denied in its entirety because “[h]iring local counsel is simply a cost of doing business in New
Jersey much like paying money to the client security fund.” (Def. Br. at 5.) They cite no case
law for this proposition. C.f. Titan Stone, Tile & Masonry, Inc. v. Hunt Const. Grp., Inc., No.
05-3362, 2008 WL 687263, at *8 (D.N.J. Mar. 10, 2008) (allowing attorneys fees for local
counsel.) A certain amount of communication between The Cullen Law Firm and local counsel,
and work on the part of local counsel, was necessary during the course of the litigation. Here,
local counsel‟s efforts were not duplicative, and the time they expended on their representation
was reasonable. Only minor reductions in fees are warranted.
Local counsel billed 1.4 hours reviewing the complaint and doing research for a
completely different owner-operator case The Cullen Law Firm also worked on. (See Tompkins,
McGuire, Wachenfeld & Barry LLP‟s Ex. A, 3/16/2009, “Receipt and Review draft complaint
PDF 18 v. Big Daddy (.80); internet research as to Big Daddy (.60).”) The Court cannot
conceive of any reason why reviewing a complaint in another matter after the complaint in this
case had been filed is in any way reasonable. This time will be disallowed. Tompkins,
McGuire, Wachenfeld & Barry LLP is awarded $29,735 in attorneys‟ fees.
D. Costs
The vast majority of the costs that The Cullen Law Firm seeks to recover are for copies.
Not all of the requested copies are adequately documented. Many submitted copies are
explained as being a “photocopy cost,” “Corel office document,” “document1,” “scan,” “copy,”
“untitled,” or simply a string of numbers. Because “the burden remains on the party requesting
the fee to prove its reasonableness, and the court has „a positive and affirmative function in the
fee fixing process, not merely a passive role,‟” Interfaith Comm. Org. v. Honeywell Intern., Inc.,
426 F.3d 694, 712 (3d Cir. 2005) (citing Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d

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Cir. 2001)), the charges that are not adequately recorded will not be awarded. $303.20 worth of
copying is excluded.
The Cullen Law Firm also seeks to recover over $600 for telephone and fax charges.
“An attorney‟s telephone and fax expenses are generally recoverable as long as they are
reasonable and necessary in order for the attorney to be able to render legal services.” Apple
Corps. Ltd. v. Int‟l Collectors Soc., 25 F. Supp. 2d 480, 500 (D.N.J. 1998). The Cullen Law
Firm, however, did not specify to whom the calls were made or list the cities called, instead
opting to list only “long distance charges.” Similarly, nearly all of their fax charges fail to list
the contents or recipients of the faxes. Since the Court is unable to determine if those expenses
were reasonable, it shall permit recovery only for the few entries with sufficient detail to
examine the reasonableness of the charge. Id. $619.80 of the request is disallowed.
Local counsel‟s cost submissions are not much better. None of their mail, copy, fax and
telephone charges provide any detail. Instead, they simply say “Vendor UNITED PARCEL
SERVICE,” “Copying,” “Long Distance Facsimile,” and “Telephone – Long Distance.” It is
impossible to determine the reasonableness of these submissions. The requested reimbursement
of $826.24 is reduced to $664.85.
CONCLUSION
“Excessive legal fees, if not checked by the exercise of billing judgment or, in this case,
this Court‟s inherent powers, will be borne unjustly by someone, be that a losing adversary, a
client, or a client‟s unsuspecting customers or shareholders. The duty imposed by the Rules of
Professional Conduct to represent a client zealously does not create a license to write a blank
check for excessive legal fees.” Microsoft Corp. v. United Computer Resources of New Jersey,
Inc., 216 F. Supp. 2d 383, 386 (D.N.J. 2002).

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Here, the fees submitted by The Cullen Law Firm were clearly excessive and have been
reduced accordingly. $229,456.50 is an appropriate award of attorneys‟ fees for The Cullen Law
Firm in light of the hours reasonably expended on this litigation. The Cullen Law Firm is also
awarded $18,981.05 in costs. Local counsel is awarded $30,399.85.
For the foregoing reasons, it is on this 15th day of August, 2011,
ORDERED that All Saints must pay plaintiffs $278,837.40 in attorneys‟ fees and costs.

s/ William H. Walls
United States Senior District Judge

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