Slantis v. Capozzi & Associates, P.C.
Filing
96
MEMORANDUM AND ORDER re: motion for award of costs & atty's fees 84 - It is hereby ORDERED that: 1. Motion 84 is GRANTED in part & DENIED in part as set forth in accompanying memo - ct awards $67,145.00 in fees & $2,122.32 in costs to Slantis.; 2. Clrk of Ct is directed to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 06/24/11. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAHNEEN SLANTIS,
Plaintiff
v.
CAPOZZI & ASSOCIATES, P.C.,
Defendant
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CIVIL ACTION NO. 1:09-CV-049
(Judge Conner)
MEMORANDUM
Plaintiff Lahneen Slantis (“Slantis”) brought this action against defendant
Capozzi & Associates, P.C. (“Capozzi”) pursuant to the Fair Credit Reporting Act,
15 U.S.C. §1681 et seq. Presently before the court is Slantis’ motion (Doc. 84) for
award of costs and attorneys’ fees pursuant to Fed. R. Civ. P. 54(d)(1) and (2).
Capozzi opposes the amount claimed, arguing that the hours Slantis’ counsel billed
and the rates at which they billed were excessive, and that several expenses are not
recoverable under statutory provisions. The motion has been fully briefed and is
ripe for disposition. For the following reasons, the court will grant the motion in
part and deny it in part.
I.
Background
Slantis is represented in this action by Gordon R. Leech (“Leech”) and Frank
P. Clark (“Clark”). Pursuant to the stipulation entered into by the parties on
January 18, 2011 (Doc. 81), the parties settled all claims with the exception of the
award of attorneys’ fees and costs, over which this court has retained jurisdiction.
(Doc. 82).
Clark is a member of the bar of the U.S. District Court for the Middle District
of Pennsylvania and concentrates his practice in the areas of employment law,
education law, and related litigation. (Doc. 84 ¶ 6). Although an experienced
litigator, Clark does not have significant prior experience litigating FCRA claims.
Accordingly, Clark sought co-counsel with additional expertise—Attorney Leech.
(Doc. 85 at 2). Leech practices primarily in Wisconsin, and he has previously
handled FCRA cases in several jurisdictions. (Id.)
Slantis’ counsel billed a total of 310 hours: Clark billed 93.1 hours, along with
his paralegal, who billed 2.5 hours; and Leech billed 210.58 hours. (Id. at 6). Both
attorneys billed for their time at a rate of $325 per hour, and paralegal time was
billed at $100 per hour, for a total fee of $98,946.00. (Id. at 7). In addition, Slantis
requests an award of costs in the amount of $2,122.32 for expenses related to
litigation. (Id. at 7).
II.
Legal Standard – 15 U.S.C. §1681n(a)(3) and 1681o(a)(2)
The relevant language for both willful and negligent noncompliance in
sections 1681n(a)(3) and 1681o(a)(2) is identical and reads: a party who is found
liable under this section is liable “in an amount equal to the sum of . . . the costs of
the action together with reasonable attorney’s fees as determined by the court.” 15
U.S.C. §1681o(a)(2) and 1681n(a)(3). It is initially the burden of the moving party to
demonstrate the reasonableness of the fees and costs requested under a fee shifting
statute. Smith v. Phila Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997). The method
the court uses for determining the reasonableness of a requested fee is the lodestar
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formula, which multiplies the number of hours reasonably expended by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Maldonado
v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). “When the applicant for a fee has
carried his burden of showing that the claimed rates and number of hours are
reasonable, the resulting product is presumed to be the reasonable fee to which
counsel is entitled.” Delaware Valley Citizens’ Council, 478 U.S. 546, 564 (1986)
(internal quotation omitted). The burden then shifts to the opposing party to
demonstrate the unreasonableness of the hours and rate. Rode v. Dellarciprete, 892
F.2d 1177, 1183 (3d Cir. 1990). The court cannot decrease the award based on
factors not raised by the adverse party. Smith, 107 F.3d at 225.
III.
Discussion
A.
Billing Rate
“[R]easonable fees are to be calculated according to the prevailing market
rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984);
Maldonado, 256 F.3d at 184. The court “should assess the experience and skill of
the prevailing party’s attorneys and compare their rates to the rates prevailing in
the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Dellarciprete, 892 F.2d at 1183; Maldonado, 256 F.3d
at 184.
Slantis’ counsel seeks attorney’s fees at the rate of $325.00 per hour. In
support of the reasonableness of this hourly rate, plaintiff provides the declaration
of two attorneys: Bruce Warshawskey of the Harrisburg law firm of Cunningham &
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Chernicoff and James Francis of the Philadelphia law firm of Francis & Mailman.
The Francis declaration is problematic in that it originates from another market in
another district, to wit: Philadelphia, the Eastern District of Pennsylvania. It is
conclusory and it does not provide concrete support for the prevailing rate for an
attorney in the Middle District of Pennsylvania. The Warshawsky declaration is
more helpful, but it too is conclusory on the precise issue of the prevailing market
rate in this district; for example, nowhere does Mr. Warshawsky identify his
standard hourly rate.
Very recently, Honorable Sylvia Rambo of this court determined that an
attorney in the general field of employment litigation, with fifteen years of
combined experience in human resources and litigation, a masters degree in trial
advocacy, and a substantial number of jury verdicts and appellate decisions in her
repertoire, was entitled to a reasonable hourly rate of $225.00. Carey v. City of
Wilkes-Barre, No. 3:05-CV-2093 (M.D. Pa. May 5, 2011) (Doc. 186 at 4). In addition,
this court has awarded lower hourly rates in several cases. See Moore v.
Susquehanna Area Reg’l Airport Auth., No. 02-CV-535, 2005 WL 2430790 (M.D. Pa.
Sept. 30, 2005) ($200.00 deemed reasonable hourly rate), Lohman v. Duryea
Borough, No. 3:05-CV-1423 (M.D. Pa. July 30, 2008) aff’d, 574 F.3d 163 (3d Cir. 2009)
($215.00 deemed reasonable hourly rate). In one recent case, Harrisburg attorneys
were awarded a higher hourly rate, see Lewis v. Smith, et al., 361 F. App’x 42 (3d
Cir. 2010) ($300.00 deemed reasonable hourly rate). After considering the
comparable skill, experience and reputation of counsel in all of these cases, as well
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as the declarations and exhibits presented by the parties, and assessing the skill
and experience of plaintiff’s counsel, the court concludes that $250.00 per hour is a
reasonable rate for both Attorney Leech and Attorney Clark.
B.
Reasonableness of Hours Spent
The court must also examine whether all the hours spent were reasonable.
Capozzi argues that the experience and background of attorneys Clark and Leech
are “very similar,” and that there was therefore no reason why Slantis required
both attorneys. (See Doc. 88, 3-5). The court does not find this argument
persuasive. It is not uncommon for multiple attorneys to represent a single client.
In this case, Clark did not have the same experience as Leech. It is understandable
that Clark would wish to have co-counsel with more experience in the relevant area
of law. Moreover, it is clear that Attorney Leech was lead counsel and that Attorney
Clark was functioning as the resident counsel, performing both substantive and
procedural tasks. Nevertheless, the court will not approve fees for work which is
purely duplicative or unnecessary.
1.
Phone Calls
Capozzi challenges Clark’s billing of forty phone calls, totaling four hours,
where his time sheet reads: “left message.” The challenged phone calls occurred
over a total time period of nearly three years. It is within the normal course of
business for an attorney to bill a client for making a call and leaving a message
when the call is not answered. Therefore, the court finds that Clark’s four
challenged hours of phone calls are reasonable.
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2.
Two Attorneys at the February 12, 2010 Deposition
Capozzi challenges the necessity of having both attorneys Clark and Leech
participate in depositions on February 12, 2010. The three depositions which
occurred on that date lasted for a total of 5.3 hours. Excluding breaks, Clark and
Leech actually spent about 4.5 hours in the depositions. (Doc. 88-1 at 7-12). Clark
billed 6.3 hours for “[t]ravel to, attend Slantis Dep; return travel,” (Doc. 84-5 at 7),
and Leech billed six hours for “[a]ttending [d]epositions of A. Eisemann, L. Capozzi
and L. Slantis,” (Doc. 84-3 at 15).
The court concludes that, before and after the depositions, Clark might
reasonably have spent an additional hour preparing for the depositions and
conferring with his client. Additionally, billing 0.3 hours for travel is reasonable,
because Clark traveled a 20 minute round trip. Therefore, the court finds that
Clark billed a reasonable amount of time for the February 12 depositions.
On the other hand, Attorney Leech’s presence by telephone was largely
duplicative. Rather than participating by telephone, Leech could have reviewed
pertinent liability and damage questions with Attorney Clark prior to the
deposition. Clark is an experienced and capable attorney who could have handled
the deposition with minor assistance on FCRA-specific issues. However, Leech
actively participated in the depositions, and the court deems it reasonable to permit
him to recover a portion of the time expended. Therefore, the court will reduce
time billed by Leech by half, and award a fee for three hours of professional time.
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3.
Atlanta Trip
Slantis seeks compensation for Attorney Leech’s time spent traveling to
Atlanta, a total of twelve hours. Leech traveled to Atlanta intending to depose
Equifax, Inc.; however, no representative showed up for the deposition. Capozzi
thus opposes an award for the fee that Leech billed for the ill-fated trip. Slantis
contends that it was reasonable for Leech to bill for traveling to Atlanta because
Equifax was properly put on notice, because Leech was ultimately able to obtain
the documents subpoenaed, and because Leech was able to communicate with
Equifax to reschedule the deposition.
Capozzi further challenges the fee for two hours’ preparation for the
rescheduled deposition, which Leech billed after he had already billed one hour of
preparation on the original date of the deposition. Slantis argues that the
additional preparation for the rescheduled deposition was necessary to review the
subpoenaed documents.
The court finds that Leech’s time billed for the Atlanta trip should be
recovered, if appropriate, from the entity who failed to appear as scheduled.
Ostensibly, Equifax failed to comply with the dictates of the subpoena and it alone
is responsible for Leech’s professional time and costs associated with the Atlanta
trip. Therefore, the twelve hours of professional time associated with this trip is
disallowed.
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4.
Research
On February 11, 26, and 27, 2010, Attorney Leech billed a total of eight hours
for legal research. (Doc. 84-3 at 14-16). Capozzi argues that if Leech is the expert
he claims to be, he would not have needed that research time. Slantis states that
the purpose of the research was to find cases that were factually on point. The
court agrees that, as a general matter, a seasoned attorney in a particular area of
law should be sufficiently familiar with that law that he would not have to spend
“an inordinate amount of time researching that same law.” Ursic v. Bethlehem
Mines, 719 F.2d 670, 677 (3d Cir. 1983). However, the court also recognizes the
importance of researching cases which are factually similar to a pending case. The
court will permit Leech to recover fees for some of the time he spent researching,
but the court concludes that 1.5 hours is more appropriate for each of the three
research sessions, for the purposes that Leech claims to have been researching.
Therefore, the court will reduce the total of eight hours to 4.5 hours.
5.
Deposition Annotations
Capozzi challenges the time Leech billed for annotating three depositions.
Leech billed 11.5 hours for the following tasks:
[R]eview and analysis of the transcript, excerpting relevant portions of
the transcript and transferring the verbatim testimony to a database,
identifying the point reference from the deposition transcript,
associating the excerpted testimony to appropriate issues, creating a
paraphrase of the testimony for easier and quicker review later,
connecting relevant witnesses that may corroborate or contradict the
excerpted testimony and making notations for any follow-up discovery
or research issues.
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(Doc. 91 at 4). Much of the analysis, notations for follow-up discovery and research,
and connection of appropriate witnesses to excerpted testimony is the sort of work
that an attorney must complete. However, paraphrasing testimony, transferring
testimony verbatim to a database, and identifying the point reference from the
deposition transcripts are tasks more appropriate for a new attorney, a paralegal, or
support staff. It is routine and time-consuming work that is not worth the hourly
rate at which a seasoned attorney would bill. An attorney may spend his time as he
wishes, but he may not charge a client for every use of that time. Attorneys often
complete tasks that cannot be billed at the full rate, just as they complete tasks that
cannot be billed at all. The court finds that approximately two-thirds of the time
spent (7.2 hours total—1.8 hours per deposition reviewed) is appropriately charged.
The court will reduce the fee award accordingly.
6.
Motion for Summary Judgment
Attorney Leech billed 11.3 hours for “[p]reparation of Slantis Motion for
Summary Judgement [sic] and proposed order,” on February 27- March 1, 2010.
(Doc. 84-3 at 16). Capozzi challenges this time as “obviously excessive” for a twopage motion. (Doc. 88 at 9). In response, Slantis claims that the time at issue
includes time spent on “the motion, brief, statement of facts and supporting
documents.” (Doc. 91 at 4). However, the court notes that Leech also made
separate entries for time spent on “[p]reparation of Brief on Slantis motion for
Summary Judgement [sic]” (8 hours on Feb. 28) and “[p]reparation of Statement of
Material Facts Not In Dispute for Slantis Motion for Summary Judgement [sic]” (3
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hours on Feb 28 and 8 hours on March 1). (See Doc. 84-3 at 16). In light of the fact
that Leech separately billed a total of 19 hours for preparing these documents in
support of the motion for summary judgment, the court finds that billing 11.3 hours
for preparation of the motion is excessive.
The court will not disturb the 19 hours referenced above, which Capozzi has
not challenged. However, the court will reduce the billing for 11.3 hours spent
preparing the motion for summary judgment. The court will award a fee for two
hours of billable work, instead of 11.3.
7.
Response to Statement of Facts
Capozzi argues that for Leech to spend six hours on a response to
defendant’s statement of facts is “obviously an excessive amount of time where
Attorney Leech had previously prepared his own exhaustive set of facts that
became the basis of his response.” The court agrees. The set of facts which Leech
created should have enabled him to respond to defendant’s statement of facts more
efficiently, and the court finds that six hours of professional time is excessive given
the task and resources at hand. Accordingly, the court will reduce the time from six
hours to three.
8.
Clerical Tasks
Capozzi challenged certain tasks undertaken by Slantis’ counsel that might
have been performed by clerical staff and charged at a lower rate. The coordinating
of a conference call between the attorneys and Slantis, as well as the filing of the
complaint and the summons, could very well have been performed by clerks. The
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court agrees that these tasks are clerical in nature, and that the half hour spent on
each task should more properly have been considered an overhead expense. The
court will not award the fees requested for these tasks.
C.
Proportional Fee
Capozzi argues that the fee award must be proportional to the recovery.
(Doc. 88, 11). However, the case quoted for support by Capozzi specifically
indicates that the “[d]efendants did not contest the reasonableness of the lodestar
and challenged only the bonus” over and above the lodestar. Ursic v. Bethlehem
Mines, 719 F.2d 670, 673 (3d Cir. 1983). Ursic is therefore easily distinguishable. In
contrast, in a case involving a fee-shifting statute using the phrase “reasonable
attorney’s fee,” the Third Circuit stated that “[h]ad Congress believed . . . that
attorney’s fees should be awarded in some proportion to the plaintiff’s damages, it
could have easily eliminated or modified the attorneys’ fees provision . . . We will
not impose such a change by judicial fiat.” United Auto Workers Local 259 Soc.
Sec. Dept. v. Metro Auto Ctr., 501 F.3d 283, 294 (3d Cir. 2007) (internal citations
omitted). Therefore, in keeping with the Third Circuit’s reasoning, the court will
not limit the lodestar fees in proportion to the recovery.
D.
Costs
Capozzi challenges some of the costs requested by Slantis—specifically, costs
associated with postage and delivery, travel expenses, Pro Hac Vice fees, and Pacer
fees. Citing In re Penn Cent. Transp. Co., 630 F.2d 183 (3d Cir. 1980) (evaluating an
award based on Fed. R. App. P. 39(a)), Capozzi argues that only taxable
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items—those listed in 28 U.S.C. § 1920—may be awarded. In re Penn Cent. Transp.
Co. can be easily distinguished, however, because the suit is based on a statute
which specifically refers to costs that are “taxed,” FED . R. APP . P. 39(a) (“costs are
taxed against the appellant . . .”), as opposed to “reasonable attorney’s fees and
costs.” Capozzi also cites Sheffer v. Experian Info. Solutions, Inc., 290 F. Supp. 2d
538 (E.D. Pa. 2003), in support of its argument that Slantis should not recover
delivery, travel, Pro Hac Vice, and research costs. The court does not find Sheffer
persuasive.
Instead, the court finds the support cited by Slantis, Grove v. Wells Fargo
Fin. Cal., Inc., 606 F.3d 577 (9th Cir. 2010), to be more persuasive. Grove involved
an award with similar language to the statutes at issue in the instant case, where
the prevailing party was to “recover his reasonable attorney’s fees and costs . . .” Id.
at 579. In evaluating the non-taxable costs that the plaintiff was seeking, the court
noted that “[t]he other circuit courts that have examined this question agree that
expenses other than those expressly listed in § 1920 are recoverable under statutes
providing for recovery of ‘attorney’s fees.’” Id. at 581; see also Central Soya
Company v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983) (interpreting
“attorney fees to include those sums that the prevailing party incurs in the
preparation for and performance of legal services related to the suit.”); Bryant v.
City of Chicago, 200 F.3d 1092, 1100 n.3 (7th Cir. 2000) (“Non-taxable costs are
recoverable as part of the attorney’s fees to be awarded” under 42 U.S.C. § 2000e5(k) which uses the phrase “reasonable attorney’s fee.”); Save Our Cumberland
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Mountains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C. Cir. 1987) (“We believe that it would
be unduly restrictive to find that neither the general term ‘costs of litigation’ not the
term ‘attorney’s fees’ includes incidental expenses of attorneys that are routine to
all litigation and routinely billed to private citizens.”). The Grove decision was
further supported by Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463 (1989), in
which the Supreme Court found that the prevailing party could recover for
paralegals’ time under a statute allowing for “a reasonable attorney’s fee as part of
costs.” Id. at 285. The Supreme Court, in language which is relevant to our inquiry,
explained that “the fee must take into account the work not only of attorneys, but
. . . it must also take account of other expenses and profit.” Id. Therefore, the court
will award the costs requested by Slantis in full.
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IV.
Recapitulation
Attorney Leech
Hours Billed
210.58
Deduction
- 36.1
Total
174.48
x
$250 per hour = $ 43,620
Attorney Clark
Hours Billed
93.1
x
$250 per hour = $ 23,275
Paralegal
Hours Billed
2.5
x
$100 per hour = $ 250
Total Fees Awarded
$ 67,145
Total Costs
$ 2,122.32
An appropriate order follows.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
June 24, 2011
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAHNEEN SLANTIS,
Plaintiff
v.
CARPOZZI & ASSOCIATES, P.C.,
Defendant
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CIVIL ACTION NO. 1:09-CV-049
(Judge Conner)
ORDER
AND NOW, this 24th day of June, 2011, upon consideration of the motion for
award of costs and attorney’s fees (Doc. 84) filed by plaintiff Lanheen Slantis
(“Slantis”), and for the reasons set forth in the accompanying memorandum, it is
hereby ORDERED that:
1.
The motion (Doc. 84) is GRANTED in part and DENIED in part as set
forth in the accompanying memorandum. The court awards
$ 67,145.00 in fees and $ 2,122.32 in costs to Slantis.
2.
The Clerk of Court is directed to CLOSE this case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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