GONZALEZ et al v. BUSTLETON SERVICES, INC. et al

Filing 56

MEMORANDUM AND/OR OPINION RE: MOTION FOR ATTORNEY FEES. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 8/18/2010. 8/19/2010 ENTERED AND COPIES E-MAILED.(tomg, )

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GONZALEZ et al v. BUSTLETON SERVICES, INC. et al Doc. 56 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA W A L T E R GONZALEZ, EDER M O R A L E S and LUIS ALBERTO ROBLERO v. B U S T L E T O N SERVICES, INC. : : : : : : C IV IL ACTION N O . 08-4703 M E M O R A N D U M AND ORDER E L IZ A B E T H T. HEY U N IT E D STATES MAGISTRATE JUDGE A u g u st 18 , 2010 A f te r a bench trial, I entered judgment in favor of Plaintiffs including prejudgment in te re s t in the following amounts: Mr. Gonzalez - $ 5,012.44; Mr. Morales - $ 6,254.75; a n d Mr. Roblero - $7,228.49. Plaintiffs have now filed a Motion for an Award of A tto rn e ys ' Fees and Costs see Doc. 50, to which Defendant has responded, see Doc. 53, a s k in g for reductions to counsels' hours and rates. Defendant has also sought further re d u c tio n of the fees and costs based on a Rule 68 Offer of Judgment made before trial. Plaintiffs have filed a Reply. See Doc. 55. For the reasons that follow, I will award the P la in tif f s a total of $ 73,195 for attorneys fees and $2,871.78 for costs. I. LO D ESTA R A lth o u g h the calculation of attorneys' fees is complicated in this case by the D e f e n d a n t's Offer of Judgment, I will begin by multiplying the number of hours re a s o n a b ly expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 4 3 3 (1983). This calculation results in the "lodestar," which is presumptively correct, but w h ic h may be adjusted as the court finds appropriate. Rode v. Dellarciprete, 892 F.2d Dockets.Justia.com 1177, 1183 (3d Cir. 1990). The burden is on the plaintiff to show that the fee request is p ro p e r and supported by evidence. Id. "Once the adverse party raises objections to the f e e request, the district court has a great deal of discretion to adjust the fee award in light o f those objections." Id. A. N u m b e r of Hours P la in tif f s have submitted a petition for fees totaling 331.7 hours, for a total of $ 1 0 4 ,3 5 7 .5 0 . See Doc. 30 at 13. Defendant challenges a significant portion of these h o u rs. 1. C le r ic a l Tasks Defendant challenges several entries that are ordinarily performed by a paralegal o r administrative assistant.1 I agree that counsel are not entitled to compensation for p u re ly administrative activities. Entering a case in the management system, mailing le tte rs, preparing a cover letter, and talking with a process server or a court clerk to order a transcript are tasks which fall within the ambit of an administrative assistant. Specifically I find that Mr. Santillo's entries on lines 3, 8, 11, 17, 22, 23, 26, 86, 88, 144, 148, 149, 174, 192, 208 for a total of 3.4 hours, are purely administrative or clerical d u tie s.2 Similarly, I find that Mr. Winebrake's entries on lines 146 and 169, submitting D e f e n d a n t has addressed the issue of work more becoming a paralegal in tw o separate sections of the response. For ease, I have addressed the objections raised on p a g e s 4 and 13 of the Response in this section of the Memorandum. 1 2 A ll line entries refer to Exhibit 1 attached to Doc. 50. 2 an opinion to Lexis for publication and inquiring about the status of a transcript, for .2 h o u rs , are administrative.3 S e v e ra l of the judges of our court have concluded that clerical tasks should not be b ille d at an hourly rate. See In re Unisys Corp. Retiree Med. Benefits Erisa Litig., No. 0 3 -3 9 2 4 , 2008 WL 2600364, at *13 (E.D. Pa. Jun. 26, 2008). "Since the costs of clerical w o rk , such as filing and copying, are ordinarily considered to be part of an attorney's rate a s office overhead, they will not be compensated." Sheffer v. Experian Info. Solutions, In c ., 290 F.Supp.2d 538, 549 (E.D. Pa. 2003) (citing Doe v. Ward, No. 98-1746, 2003 W L 22187170, at *10 (W.D.Pa. Sept.16, 2003) (finding that clerical tasks are office o v e rh e a d and therefore incorporated into attorney's rate)); see also Missouri v. Jenkins, 4 9 1 U.S. 274, 285-88 (1989) ("purely clerical or secretarial tasks should not be billed at a p a ra le g a l rate, regardless of who performs them"); Halderman v. Pennhurst State Sch. & H o s p ., 49 F.3d 939, 942 (3d Cir.1995) (it is not appropriate to allow "the wasteful use of h ig h ly skilled and highly priced talent for matters easily delegable to non-professionals"). Thus, these hours will not be compensated. In addition to the entries listed, Defendant also objects to Mr. Winebrake's a c tiv itie s in lines 9 and 10, reviewing the Complaint and filings. See Doc. 53 at 4. I do n o t consider such activities clerical, and find them necessary to proceed with the litig a tio n . In addition, Defendant challenges the time Mr. Winebrake spent researching th e applicability and function of Rule 68. See Doc. 53 at 13. I have found that many a s e a s o n e d attorney is unfamiliar with this Rule and its function and will not deny Mr. W in e b ra k e fees for his research. 3 3 2. T im e Drafting the Complaint Defendant objects to the 6.7 hours Mr. Santillo spent drafting the Complaint. Defendant points out that the Complaint was six pages, only one of which was dedicated to the facts of the case. The other pages identify the parties to the case and contain b o ile rp la te conclusions of law. Having reviewed the Complaint again, I must agree. Of th e 33 numbered paragraphs, only 7 relate to the facts of the case. While I recognize that th is case was record intensive and required counsel to review a substantial amount of p a p e rw o rk , 6.7 hours is excessive considering the bare-bones nature of the Complaint. I w ill reduce the hours spent on preparing the Complaint to 4.5, resulting in a reduction of 2 .2 hours. 3. H o u r s between October 9, 2008 and March 18, 2009 a . New Jersey Legal Services D e f e n d a n t next objects to substantial hours spent by Plaintiffs' counsel in p re p a rin g a damages analysis and preparing for the arbitration hearing. Specifically, D e f e n d a n t objects to the plethora of hours billed for discussions with New Jersey Legal S e rv ic e s . During this time, Mr. Santillo spent 4.9 hours contacting or discussing the case w ith New Jersey Legal Services. (Time Entries, lines 1, 12, 14, 16, 19, 27, 30, 31, 33, 39, 4 42, 46, 55, and 59).4 The court finds essential the original discussions with New Jersey L e g a l Services, when the case was referred. However, I question the necessity of the o n g o in g updates. In an effort to explain this time, Plaintiffs' counsel states that the o n g o in g calls were necessary because New Jersey Legal Services was providing tra n s la tio n services. See Doc. 50 at 1 n.1. Counsel would discuss specifics with New J e rs e y Legal Services, who would then convey the information to Plaintiffs. The court d o e s not find this an efficient mechanism of communication. Moreover, the fee petition re f le c ts that at some point after the arbitration, counsel began communicating directly w ith the clients, obviating the need for communication through New Jersey Legal S e rv ic e s . See Time Entries, lines 69, 89, 101, 113. Therefore, I will eliminate all but the f irs t .6 hours when the case was original referred, resulting in a reduction of 4.3 hours. b. R e m a in in g hours of damages analysis and settlement In addition to the hours noted above spent in communication with New Jersey L e g a l Services, Defendant also takes issue with the time Plaintiffs' counsel spent p re p a rin g a damages estimate and settlement. As previously mentioned, the court is well- In their reply, Plaintiffs' counsel avers that Defendant did not challenge lin e item 12. See Exh. 11 to Doc. 55. However, in the Response, "Defendant calls into q u e s tio n the `necessity' of each and every phone call" to New Jersey Legal Services. See D o c . 53 at 5. 4 5 aware that this was a record intensive case. Thus, the court will not further reduce the tim e spent compiling a damages estimate.5 4. T w o Lawyers' Trial Time Defendant also argues that it was unreasonable for both Mssrs. Santillo and W in e b ra k e to attend the trial. Considering that both profess a proficiency in the areas of w a g e and overtime law, see Declarations of Santillo and Winebrake, Defendant questions th e need for both to have attended the trial. The court had the opportunity to observe the p a rtic ip a tio n and involvement of both counsel during the pretrial conference and at trial. I note that Plaintiffs' counsel split the trial duties, each addressing the court once, and e a c h questioning three witnesses, Santillo focusing on the facts, and Winebrake focusing o n the accounting. As I stated in my original Findings and Conclusions, there was much u n c e rta in ty in the Portal-to-Portal Act and the FLSA regarding compensation due for a c tiv itie s performed pre- and post- workday. Considering the novelty of Plaintiffs' theory a n d the uncertainty of the law, I don't find that the attendance of both at trial was u n re a s o n a b le . However, the Third Circuit has suggested that when the time of two a tto rn e ys was reasonably required, one of the two should bill at an associate's rate. See E v a n s v. Port Authority of New York and New Jersey, 273 F.3d 346 (3d Cir. 2001); B u c c e ro n i v. City of Philadelphia, No. 03-6371, 2006 WL 3420298, at *4 n.7 (E.D. Pa. U s in g the Defendant's figure, see Doc. 53 at 6-8, with the reduction of h o u rs for time spent communicating with New Jersey Legal Services, 14.5 hours will be a llo w e d for the damages analysis and settlement issues. 5 6 Nov. 27, 2006). Here, each of Plaintiffs' lawyers charged his normal hourly rate as a p a rtn e r for all hours spent in court. A reduction of $50 per hour for Mr. Santillo's time w o u ld seem appropriate under the Third Circuit's suggestion.6 Therefore, 19.3 hours of M r. Santillo's time (Lines 121, 132, and 138), will be permitted at the reduced rate. 5. I n te r n a l Meetings/Correspondence D e f e n d a n t also objects to the excessive amount of time charged by Plaintiffs' c o u n s e l for internal meetings and correspondence. Considering the experience of P la in tif f s ' counsel, I find that the degree of supervision evidenced by the time log seems e x c e s s iv e . See Smith v. International Services, Inc., 1997 WL 667872, at *5 (E.D. Pa. O c t. 9, 1997) ("I recognize that senior associates and partners in private firms engage in s u p e rv is o ry activities, but do not believe a firm would bill so many hours devoted to s u p e rv is io n of inexperienced lawyers in a relatively straight-forward case such as this."). Looking at the time entries, it appears that much of this challenged time was spent re v ie w in g work already completed, or reviewing strategy. See Time Entries, at Lines 82, 8 5 , 87, 109, 115, 159, 160, and 171. Considering the experience of both counsel, this s e e m s duplicative and unreasonable. Therefore, I will reduce Mr. Winebrake's hours by As explained later in this memorandum, Plaintiffs' counsel had indicated th e ir normal billing rates to the defense in preparing a settlement demand and in preparing f o r arbitration. I will hold them to those rates and the reduction of $50 per hour shall be ta k e n from that rate. I further note that the reduction in Mr. Santillo's rate here is not any re f le c tio n of the caliber of his advocacy. Rather, based on the Third Circuit's suggestion, I will reduce the lower-billing partner to the rate of an associate. 6 7 1.1 hours for time that seems primarily supervisory in nature. See Time Entries, at Lines 8 2 , 85, and 115. In addition, Defendant points to several instances where Mr. Santillo a n d Mr. Winebrake met to discuss the case, see Time Entries, at Lines 92 and 93, 98 and 1 0 2 , 108 and 112, 117 and 119, 150 and 151, 162 and 163, 179, 180 and 181, 196 and 1 9 9 , for which each has charged his full rate. Like the time spent a trial, I find it e x c e s s iv e for both counsel to charge the rates of partners for this time. I will therefore re d u c e Mr. Santillo's rate by $50 per hour for 3 hours.7 6 . Travel Time Defendant also objects to Plaintiffs' counsel charging full rate for travel time both to and from court and to and from meetings with the clients. Several courts in our circuit h a v e reduced counsel's rate by one-half for travel time. See EEOC v. United Parcel S e rv ., No. 06-1453, 2009 WL 3241550, at *3 (D.N.J. Sept. 30, 2009) (customary for tra v e l time in New Jersey to be compensated at one-half regular billing rate unless w o rk in g while traveling); Lowe v. Clearfield-Jefferson Drop-In Ctr., No. 09-91, 2009 W L 2762406, at *1 n.1 (W.D. Pa. Aug. 27, 2009) (objection to fee for travel time would re q u ire a fifty-percent reduction). However, in this case Plaintiffs' counsel have noted th a t they traveled by train and used that time to prepare for the trial. See Time Entries at L in e s 122, 126, 133, 136, 142. Thus, I conclude that counsel is entitled to full M ss rs . Santillo and Winebrake also met to discuss strategy and discovery o n February 18, 2009, see Time Entries at Lines 48 and 50. Consistent with other similar m e e tin g s , I will allow Mr. Santillo to bill only $150 per hour for this time. 7 8 compensation for this travel time. See Rush v. Scott Specialty Gases, Inc., 934 F.Supp 1 5 2 , 156 (E.D. Pa. 1996) (counsel entitled to full rate for time spent commuting while w o rk in g on the file). At entry 139, Mr. Santillo noted only round trip travel, omitting any m e n tio n of trial preparation on the train. Thus, the 1.2 hours for that travel is reduced to o n e -h a lf his normal rate. 7. F e e Petition F in a lly, Defendant objects to the hours spent preparing the fee petition. Mr. S a n tillo billed 24.4 hours for the fee petition and attachments. Mr. Winebrake billed 16.9 h o u rs .8 See Def.'s Resp. at 21. Again it appears that Mr. Winebrake performed in a s u p e rv is o ry capacity with respect to certain hours he expended on the fee petition. Considering Mr. Santillo's experience, see Decl. at 7, it appears that he should be well v e rs e d in preparing a fee petition and Mr. Winebrake's supervision was unnecessary. Therefore, I will eliminate the 6.5 hours expended by Mr. Winebrake in drafting and e d itin g a fee petition already drafted by Mr. Santillo. See Time Entries at Line 238. In a d d itio n , it appears that Mr. Santillo billed twice for the drafting of his Declaration. See T im e Entries at Lines 224 and 236. Therefore, I will reduce his hours by 1.7 for the time s p e n t preparing the fee petition.9 E v e n at the reduced rates adopted by the court, see infra at 11, Mr. W in e b ra k e has billed $ 5,915 for preparation of the fee petition, while Mr. Santillo has b ille d $4,880 for the preparation of the fee petition, for a total of $10,795. 8 In Plaintiffs' Reply, counsel "update" their hours and costs to include h o u rs and costs incurred after the filing of the fee petition, including the preparation of 9 9 B. H o u r ly Rate D e f e n d a n t also takes issue with the hourly rates requested by Plaintiffs' counsel. Mr. Winebrake seeks $ 425 per hour, and Mr. Santillo seeks $ 275 per hour. "Generally, a reasonable hourly rate is to be calculated according to the prevailing market rates in the re le v a n t community." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). In m a k in g this determination, "the court should assess the experience and skill of the p re v a ilin g party's attorneys and compare their rates to the rates prevailing in the c o m m u n ity for similar services by lawyers of reasonably comparable skill, experience, a n d reputation." Id. Although the court recognizes Mr. Winebrake's extensive b a c k g ro u n d in employment law and litigation and Plaintiffs' counsel have provided s e v e ra l affidavits concerning the propriety of these rates, Defendant relies on prior c o rre sp o n d e n c e with Plaintiffs' counsel in challenging the rates listed in the current p e titio n for fees. On October 21, 2008, Mr. Santillo provided a damages calculation to D e f e n d a n t, noting that he charged $200 per hour and Mr. Winebrake charged $350 per h o u r. See Exh. A to Doc. 53. According to Mr. Santillo's letter, the Honorable A. R ic h a rd Caputo of the Middle District of Pennsylvania had "recently" approved these th e Reply, totaling close to $6,500. Looking at the itemization, I find that several of the e n trie s would be struck for the reasons explained in this memorandum. For example, c o u n s e l's review of the papers he filed and entering them into their claim system is a d m in is tra tiv e in nature and should be performed by a legal secretary; likewise calls to a tra n s la to r. More fundamentally, however, the reply was not reasonable and necessary to th e litigation. Therefore, I will not allow compensation for these hours. 10 rates for Plaintiffs' counsel. Similarly, in March 2009, Mr. Santillo represented to the a rb itra tio n panel that he and Mr. Winebrake charged $ 200 and $ 350 per hour re s p e c tiv e ly. See Exh. D to Doc. 53. Although it may very well be that counsel have in c re a se d their rates in the interim, (an unusual recessionary move), by Mr. Santillo's a d m is sio n , the rates were $ 75 per hour lower throughout much of this litigation. Counsel h a s failed to inform the court when the rate increase occurred, and I decline to apply the c u rre n t rate retroactively to work performed when counsel indicated that their rate was lo w e r. See Defurio v. Elizabeth Forward School Dist., No. 05-1227, 2008 WL 2518139, a t *4 (W.D. Pa. Jun. 19, 2008).1 0 I will, therefore, lower the hourly rates to $200 and $ 3 5 0 per hour respectively. According to the Fee Petition, Mr. Santillo billed 244.1 hours. From this, the court h a s deducted a total of 11.6 hours. Additionally, 22.3 of the remaining hours are a p p ro p ria te ly billed at $150 an hour, and 1.2 hours at $100 an hour. Mr. Winebrake In their reply, Plaintiffs' counsel explain that it would not be economical to obtain the affidavits necessary to support their hourly rate at the arbitration proceeding. See Doc. 55 at 8. However, based on counsel's written statement and the finding of J u d g e Caputo, I find that the rates I have adopted are reasonable and supported by the e v id e n c e . Moreover, as previously noted but for the hours spent in communication with N e w Jersey Legal Services, I have declined to reduce the hours counsel spent preparing a d a m a g e s estimate. Such estimate included the hours spent and rates charged by P la in tif f s ' counsel. I would expect that the 14.5 hours permitted would be sufficient to p ro v id e the necessary documentation to substantiate the hours devoted to the case and ra te s charged. 10 11 billed 87.6 hours, from which I have deducted 7.8 hours. This amounts to a lodestar of $ 7 3 ,1 9 5 , reflecting the sum of: 22.3 x 150 = 3,345 2 0 9 x 200 = 41,800 1 .2 x 100 = 120 7 9 .8 x 350 = 27,930 C. S p e c ia l Considerations - Partial Success and Novelty of the Claim In responding to the fee petition, Defendant argues that the fees requested are g ro s s ly disproportionate to the award and should be reduced further. Defendant argues th a t the most critical factor in determining a fee award is the degree of success. See Doc. 5 3 at 15-16. Plaintiffs' counsel argue that reduction of their fees would thwart the FLSA s ys te m , dissuading counsel from accepting cases where the financial recovery was m in im a l. See Doc. 50 at 9-11. The Supreme Court has identified several factors to be considered in calculating a re a s o n a b le attorney's fee: (1) the time and labor required; (2) the novelty and difficulty o f the questions; (3) the skill requisite to perform the legal service properly; (4) the p re c lu sio n of employment by the attorney due to acceptance of the case; (5) the customary f e e ; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client o r the circumstances; (8) the amount involved and the results obtained; (9) the experience, re p u ta tio n , and ability of the attorneys; (10) the "undesirability" of the case; (11) the 12 nature and length of the professional relationship with the client; and (12) awards in s im ila r cases. Riverside v. Rivera, 477 U.S. 561, 567-68 (1986) (citing Johnson v. G e o rg ia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). Two of these factors are ju x ta p o s e d in this case. The amount of the award in the case, although not minimal, was s ig n if ic a n tly less than counsel sought. It was not that counsel failed to succeed on any c la im . Rather the facts did not support a more significant award for the uncompensated m o rn in g and evening time.1 1 Thus, the factor of success or the amount of the award w o u ld tend to favor a further reduction. However, I cannot overlook the novelty of c o u n s e l's argument involving the interplay of the Portal-to Portal Act and the FLSA. Counsel conducted a thorough analysis of cases across the country in bringing their a rg u m e n t for uncompensated morning and evening time. See Pls.' Proposed Findings and C o n c lu s io n s at 24-29. This is not a path that has been well-trodden in this district or c irc u it. On balance, I conclude that the novelty of the uncompensated morning and e v e n in g time claim outweighs counsels' limited success, and will make no further re d u c tio n .1 2 The lodestar stands at $73,195 in attorneys's fees. A s I am sure counsel remember, I found that Mr. Levins credibly testified th a t the Plaintiffs only reported to the shop for transportation thirty to forty percent of the tim e . N.T. 10/16/09 at 84, 89. Thus, I calculated the damages for uncompensated m o rn in g and evening time based on this testimony. 11 I note that the Third Circuit has rejected a rule of proportionality. "[I]t is n o t permissible for a trial judge to make a reduction in the attorney's fee award solely on th e basis of proportionality." Davis v. Southeastern Pennsylvania Transp. Auth., 924 F .2 d 51, 54 (3d Cir. 1991). Thus, to the extent Defendant seeks a reduction based on p ro p o rtio n a lity, I reject the argument. 12 13 II. COSTS A c c o rd in g to the fee petition, Plaintiffs incurred a total of $2,916.78 in costs. See D o c . 50 at 2. Defendant challenges $45.00 incurred prior to the arbitration. In their a rb itra tio n memorandum, Plaintiffs sought $613.30 for costs to that date (March 19, 2 0 0 9 ). See Exh. D to Doc. 53. Plaintiffs now claim a total of $658.30 for costs as of M a rc h 18, 2009. See Santillo Decl. at 2 (attached as Exh. 1 to Doc. 50). Plaintiffs' c o u n s e l explains that the arbitration figures were based on conservative estimates of the e x p e n s e s they would incur in the days leading up to the arbitration. See, Doc. 55 at 3 n.2. However, in the costs presented to this court, there is no explanation for the additional $ 4 5 prior to arbitration. Thus, I will reduce the costs (incurred prior to the Rule 68 Offer o f Judgment) by $45. III. R U L E 68 OFFER OF JUDGMENT A s previously mentioned, on March 18, 2009, Defendant made an Offer of J u d g m e n t to Plaintiffs, offering a total of $25,000. Defendant argues that the offer cuts o f f Plaintiffs' right to attorneys' fees accrued after the offer because it exceeded the total ju d g m e n t and reasonable fees and costs as of that date. Plaintiffs contend that the total of th e three judgments, fees and costs to the date of the Offer surpass the Offer made by 14 Defendant.1 3 The parties' dispute requires an analysis of how the judgment, fees, and c o s ts are calculated on this record for purposes of Rule 68. R u le 68 provides: A t least 14 days before the date set for trial, a party defending a g a in s t a claim may serve on an opposing party an offer to a llo w judgment on specified terms, with the costs then a c c ru e d . . . . If the judgment that the offeree finally obtains is n o t more favorable than the unaccepted offer, the offeree m u s t pay the costs incurred after the offer was made. Fed. R. Civ. P. 68(a) and (d). The Rule requires the comparison of the offer to the ju d g m e n t, and the court looks to the language of the offer to determine what figures are a d d e d to the judgment for the comparison. Le v. Univ. of Pennsylvania, 321 F.3d 403, 4 0 9 (3d Cir. 2003). Here, Defendant, in a single Offer of Judgment, made an offer of $25,000 to P la in tif f s : $6944.44 each to Mssrs. Gonzalez and Morales, and $11,111.12 to Mr. R o b le ro . Throughout the document, Defendant refers to a single Offer made to the P la in tif f s (plural). COMES NOW, . . . Bustleton Services, Inc., . . . by and th ro u g h [its] attorneys, . . . and offers a judgment to be taken a g a in s t [it] by Plaintiffs as follows: in the amount of $ 6 ,9 4 4 .4 4 to Walter Gonzales [sic], inclusive of costs and re a so n a b le attorneys' fees accrued to this date; in the amount P la in tif f s also argue that under the FLSA, the Offer of Judgment serves to c u t off only the costs, not the attorneys' fees. Because I conclude that the judgment plus re a s o n a b le attorneys' fees and costs as of the date of the Offer exceeds the Offer of J u d g m e n t, I have no need to address this additional argument. 13 15 of $6,944.44 to Eder Morales, inclusive of costs and re a so n a b le attorneys' fees accrued to this date; and, in the a m o u n t of $11,111.12 to Alberto Roblero, inclusive of costs a n d reasonable attorneys' fees accrued to date. This offer is m a d e pursuant to Rule 68 of the Federal Rules of Civil P ro c e d u re and is not admissible except in a proceeding to d e te rm in e costs and fees. If this offer is not accepted in w ritin g within 10 days of today (the date of service), it shall b e deemed withdrawn. Doc. 13. Based on the logical reading of the language used by Defendant, I construe this to constitute a single offer in the amount of $25,000 to settle the claims of all three P la in tif f s .1 4 H e re , the judgments entered were: $5,012.44 for Mr. Gonzalez, $6,254.75 for Mr. M o ra le s , and $7,228.49 for Mr. Roblero, for a total award of $18,495.68. To this, by the te rm s of the offer, the court must add reasonable attorneys' fees and costs incurred prior to the Offer of Judgment.1 5 Up to and including March 18, 2009, Plaintiffs' counsel H a d one of the three Plaintiffs attempted to accept the Offer of Judgment, D e f e n d a n t would have been justified to clarify that acceptance by one was contingent u p o n acceptance by all three Plaintiffs based on the language of the offer to accept "a ju d g m e n t" taken "by Plaintiffs." Otherwise, Defendant would have been left with the e x p e n s e of litigation against the remaining plaintiffs. Moreover, Defendant does not m a k e the argument that the court should consider the judgments separately. 14 B e c a u s e Defendant considers the fee request "unreasonable" and because P la in tif f s ' counsel have failed to delineate fees between the three Plaintiffs, Defendant s u g g e s ts that the court should adopt the attorneys' fees awarded by the arbitrators. See D o c . 53 at 30. I find no basis to do so. Rule 68 speaks in terms of a trial -- a trial at w h ic h the plaintiff prevails in order for the defendant to invoke the Rule. The court is th e re f o re the judge of the reasonableness of the fees and costs. Having conducted this a n a lys is and finding no authority to support reliance on the arbitrators' fee award, I reject D e f e n d a n t's suggestion. 15 16 incurred reasonable fees of $10,470 (49.4 hours at $200, 1.6 hours at $350, and .2 at $ 1 5 0 ), and costs of $613.30, for a total of $11,083.30. Added to the judgment, this totals $ 2 9 ,5 7 8 .9 8 , surpassing the $25,000 Offer of Judgment. IV . C O N C L U S IO N A s explained in this Memorandum, I have reduced Mr. Santillo's hours by 11.6, Mr. Winebrake's hours by 7.8, reduced the billing rate for 22.3 of Mr. Santillo's hours by $ 5 0 , and 1.2 hours by $100. Additionally, I have reduced the rate at which each attorney b ills by $75 based on Mr. Santillo's representations to defense counsel and the arbitration p a n e l. Despite the objection to such reduction in the Reply, by counsel's own re p re se n ta tio n , these rates were found reasonable by the Judge Caputo in the Middle D is tric t of Pennsylvania. I will hold counsel to their earlier representations. A d d itio n a lly, I find that the judgment entered, including a reasonable attorneys' f e e (calculated by the court) and costs to the date of the Offer of Judgment exceeds the O f f e r of Judgment. Thus the Offer of Judgment has no effect on the calculation of cost or fees. Consistent with this Memorandum, I will Amend the Judgment entered in this case to include $73,195 for attorneys fees and $2,871.78 for costs. 17 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA W A L T E R GONZALEZ, EDER M O R A L E S and LUIS ALBERTO ROBLERO v. B U S T L E T O N SERVICES, INC. : : : : : : ORDER A N D NOW, this 18th day of August, 2010, upon consideration of C IV IL ACTION N O . 08-4703 th e judgment previously entered in the case, the Motion for Attorneys' Fees and Costs, th e response, and reply, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Petition for Attorneys' Fees is GRANTED WITH M O D IF IC A T IO N , the Defendant's Request for certain reductions to the requested hours is GRANTED IN PART, and the Defendant's Request for a reduction in the rates charged b y counsel is GRANTED. 1. Plaintiffs are awarded $73,195 in attorneys' fees. 2. Plaintiffs are awarded $ 2,871.78 in costs. BY THE COURT: /s/ Elizabeth T. Hey ELIZABETH T. HEY UNITED STATES MAGISTRATE JUDGE

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