JENKINS et al v. NJ TRANSIT RAIL OPERATIONS, INC.
MEMORANDUM re: 97 PLAINTIFF'S PETITION FOR ATTORNEY FEES. SIGNED BY HONORABLE ANITA B. BRODY ON 1/8/21. 1/8/21 ENTERED AND COPIES E-MAILED.(jwl, )
Case 2:17-cv-02309-AB Document 103 Filed 01/08/21 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Jerome Johnson, et al.
NJ Transit Rail Operations, Inc.,
January 8, 2021
Anita B. Brody, J.
In 2017, Plaintiffs Jerome Johnson and Jermaine Jenkins filed this action against
Defendant New Jersey Transit Rail Operations, Inc. (“NJTRO”), alleging violations of the
Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109. In September of 2020, Mr. Jenkins and
NJTRO settled Mr. Jenkins’s claim for $300,000 and NJTRO agreed to pay $130,000 in
attorneys’ fees and expenses. Pl.’s Pet. ¶ 17 at 5, ECF No. 97. Also in September of 2020, Mr.
Johnson and NJTRO settled Mr. Johnson’s claims for $1,000,000, but did not reach an
agreement regarding attorneys’ fees and expenses. Id. Thereafter, Mr. Johnson filed a petition for
attorneys’ fees and expenses. The Court now addresses the petition.
Mr. Johnson seeks statutory attorneys’ fees in the amount of $315,944.00 and expenses in
the amount of $31,420.07 pursuant to the FRSA. Id. at 1. In support of his petition, he has
provided a 61-page timesheet with time entries for each task conducted by his attorneys. Pl.’s
Pet., Ex. B. Mr. Johnson’s counsel seek a rate of $500.00 per hour for 563 hours on the FRSA
claims and roughly 68.8 hours on related Eleventh Amendment issues. See id. ¶¶ 132-36. Mr.
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Johnson’s counsel utilizes the fee schedule rates established by Community Legal Services, Inc.
(“CLS”). See id.; see also Maldonado v. Houstoun, 256 F.3d 181, 187-88 (3d Cir. 2001)
(approving the use of the CLS schedule to fix hourly rates). NJTRO does not challenge counsel’s
rate of $500.00. Mr. Johnson’s counsel has over 40-years of experience and the rate is
commensurate with CLS’s fee schedule. See id.
NJTRO contests the reasonableness of Mr. Johnson’s counsel’s specific time entries and
hours worked on numerous grounds. In support of their arguments, NJTRO has provided
objections to nearly every time entry in an annotated copy of counsel’s timesheet. See Def.’s
Mem. in Opp’n, Ex. B. Specifically, NJTRO argues: (1) Mr. Johnson tries to “double-dip” and
seek fees incurred from the representation of Mr. Jenkins in addition to those from his own case;
(2) Mr. Johnson is not entitled to any fees incurred from counsel’s legislative and lobbying
efforts or case work on Eleventh Amendment issues; and (3) numerous other objections that
concern discovery disputes and travel time. See id. ¶¶ 97, 133, 106, 137 at 12, 15-16.
Mr. Johnson also seeks $31,420.07 in expenses. In support of his claim for expenses, Mr.
Johnson provided an itemized list of costs for the litigation. See Pl.’s Pet. ¶ 138, Ex. C. NJTRO
argues that: (1) Mr. Johnson attempts to claim expenses he has already received from the
settlement of Mr. Jenkins’s claim; and (2) that Mr. Johnson has failed to provide invoices for the
expenses. Def.’s Mem. in Opp’n ¶ 138 at 16.
Mr. Johnson seeks fees and expenses pursuant to the FRSA. The FRSA provides that a
successful plaintiff is entitled to “all relief necessary to make the employee whole.” 49 U.S.C. §
20109(e)(1). This relief includes “litigation costs, expert witness fees, and reasonable attorney
fees.” 49 U.S.C. § 20109(e)(2)(C).
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A. Attorneys’ Fees
“The party seeking attorney’s fees has the burden to prove that its request for attorney’s
fees is reasonable.” Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). “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). This is referred to as the “lodestar.” Interfaith Cmty. Org. v. Honeywell
Int’l, Inc., 426 F.3d 694, 703 n.5 (3d Cir. 2005), as amended (Nov. 10, 2005). Once the
petitioner submits evidence of the hours worked and the rates claimed, the burden then shifts to
the party opposing the fee petition to challenge the reasonableness of the requested fee. Rode,
892 F.2d at 1183. “‘The district court cannot decrease a fee award based on factors not raised at
all by the adverse party.’” McCutcheon v. Am.’s Servicing Co., 560 F.3d 143, 150 (3d Cir. 2009)
(quoting Rode, 892 F.2d at 1183). Once an adverse party raises objections to the petition for
attorneys’ fees, “the district court has a great deal of discretion to adjust the fee award in light of
those objections.” Rode, 892 F.2d at 1183 (citing Bell v. United Princeton Properties, Inc., 884
F.2d 713, 721 (3d Cir. 1989)).
Mr. Johnson has provided evidence of the reasonable hours worked and the billing rates
claimed by his attorneys. See Pl.’s Pet. ¶ 127-31, 136 at 33-34, Ex. B. NJTRO’s objections will
be addressed in turn.
1. Double Dipping
Mr. Johnson and Mr. Jenkins were both union officers for NJTRO’s largest rail union. See
Pl.’s Pet. ¶ 22 at 6. They both brought claims under the FRSA with the law firm Coffey Kaye
Myers & Olley. See Am. Compl. ¶¶ 1, 52, 83. Mr. Johnson brought two distinct claims under the
FRSA and Mr. Jenkins raised one. See id. Mr. Johnson’s first claim under the FRSA and Mr.
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Jenkins’s sole claim both “arose out of the same underlying facts” and involved similar
allegations of retaliation against NJTRO. Pl.’s Pet. ¶¶ 20-22 at 7.
Mr. Jenkins’s sole claim was settled and counsel agreed to an award of attorneys’ fees for
the representation of Mr. Jenkins. See Pl.’s Pet. ¶ 17 at 5. Because Mr. Johnson’s demand for
fees includes work also applicable to the representation of Mr. Jenkins, NJTRO contends the
most “equitable resolution” is to award $140,750.00 in attorneys’ fees, half of Mr. Johnson’s
demand. Def.’s Mem. in Opp’n at 1. Yet, NJTRO provides no evidence that the attorneys’ fees
agreed upon for Mr. Jenkins were also intended to cover Mr. Johnsons’ claims. Mr. Johnson has
provided a complete account of his counsel’s work on his two claims. See Pl.’s Pet., Ex. B.
NJTRO now has the burden “to challenge the reasonableness of the requested fee.” Rode, 892
F.2d at 1183. NJTRO has merely provided a notation on every entry on counsel’s timesheet that
involved Mr. Jenkins and has declared Mr. Johnson’s fee should be cut in half as a result. See
Def.’s Mem. in Opp’n, Ex. B.
NJTRO’s notations are not enough to satisfy their burden. Because one of Mr. Johnsons’
claims and Mr. Jenkins’s sole claim share the same underlying facts, it is entirely reasonable that
counsel’s work would involve overlap between the two plaintiffs. Mr. Johnson even
acknowledges that “some of the hours billed were applicable to both cases.” Pl.’s Reply at 7,
ECF No. 99. NJTRO however, provides no evidence that the settlement agreement for Mr.
Jenkins meant counsel could no longer seek fees from hours worked that applied to both Mr.
Johnson and Mr. Jenkins. Simply put, the existence of Mr. Jenkins’s settlement does not bear on
Mr. Johnson’s petition for fees.
Mr. Johnson’s claims “were far more extensive” than Mr. Jenkins’s sole claim and
yielded a much larger settlement amount. Pl.’s Reply at 7. In determining fee petitions, “the most
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critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436. “Where a plaintiff has
obtained excellent results, his attorney should recover a fully compensatory fee.” Id. at 435. By
all measures, Mr. Johnson has obtained an “excellent” result and his counsel is entitled to the full
demand for attorneys’ fees regardless of Mr. Jenkins’s settlement. Id.
2. Eleventh Amendment Work
NJTRO contends that Mr. Johnson should not recover fees incurred from counsel’s
legislative work and intervention in Eleventh Amendment cases. See Def.’s Mem. in Opp’n at 2.
Early in the litigation, NJTRO raised a defense of Eleventh Amendment immunity. See Pl.’s Pet.
¶ 12 at 4. In response, Mr. Johnson’s counsel pursued a multi-faceted strategy that involved
legislative efforts and intervention in other Eleventh Amendment cases in order to change the
prevailing immunity law in transit cases. See Pl.’s Reply at 3. Counsel’s efforts culminated in the
passing of the New Jersey Transit Employee Protection Act. Id. at 5. The act prohibits the
defense of sovereign immunity in cases involving NJTRO and allowed Mr. Johnson’s case to
move forward. Id. at 5-6.
Counsel may petition for fees for work that is “useful and the type ordinarily necessary to
secure the final results obtained.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 560-61 (1986). In Delaware Valley, the Supreme Court determined that
“useful” work includes hours that “did not occur in the context of traditional judicial litigation.”
Id. (holding counsel could include time spent on regulatory work in fee petition pursuant to the
Clean Air Act). Mr. Johnson has articulated the importance of counsel’s legislative work and
intervention in Eleventh Amendment cases to his lawsuit. Without this work, Mr. Johnson’s
lawsuit might not have gone forward. Therefore, Mr. Johnson’s counsel is entitled to recover
fees for the Eleventh Amendment work.
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3. Other Objections
NJTRO raises numerous other objections to Mr. Johnson’s fee petition, including
contentions over recovery for discovery disputes and travel time. See Def.’s Mem. in Opp’n at
10, 13-14. Critically, fee petitions “should not result in a second major litigation.” Hensley, 461
U.S. at 437. Again, counsel has obtained an “excellent” result for Mr. Johnson in the form of a
$1,000,000 settlement. Id. Mr. Johnson requests $315,944.00 or roughly 32-percent of the total
settlement figure. Pl.’s Reply at 9. This request is entirely reasonable and Mr. Johnson is entitled
to his full demand for attorneys’ fees.
Mr. Johnson also seeks $31,420.07 in expenses and has provided an itemized list of costs
for the litigation. See Pl.’s Pet. ¶ 138, Ex. C. NJTRO argues that Mr. Johnson attempts to claim
expenses he has already received from the settlement of Mr. Jenkins’s claim. Def.’s Mem. in
Opp’n ¶ 138 at 16. NJTRO further contends Mr. Johnson should produce invoices related to the
expenses. Id. ¶ 137-138 at 16. In response to NJTRO, counsel for Mr. Johnson described the
process for calculating expenses. Pl.’s Reply at 7. “When an expense was related to both
plaintiffs, the Petitioner’s bookkeeper assigned one-half the cost to each file. Where an expense
only related to Mr. Johnson’s case, the entire cost was only assigned to his file. . .There is no
overlapping of expenses and no ‘double-dipping.’” Id.
The FRSA permits the recovery of “litigation costs.” 49 U.S.C. § 20109(e)(2)(C). After
review of the itemized list and counsel’s description of the expense calculation process, the
evidence provided is sufficient. Pursuant to the FRSA, the expenses requested are reasonable and
part of the “necessary relief” to make Mr. Johnson “whole.” 49 U.S.C. § 20109(e)(1). Therefore,
Mr. Johnson is entitled to $31,420.07 in expenses.
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For the reasons outlined above, Mr. Johnson’s petition for attorneys’ fees and expenses is
granted. I will award Mr. Johnson $315,944.00 in fees and $31,420.07 in expenses.
_s/ANITA B. BRODY, J._______
ANITA B. BRODY, J.
Copies VIA ECF
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