Centrella et al v. RitzCraft Corporation of Pennsylvania et al
Filing
188
OPINION AND ORDER: The Court GRANTS, in part, Plaintiffs' 174 SUPPLEMENTAL MOTION for Attorney Fees and Costs. Signed by Judge John M. Conroy on 4/11/2018. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Carmine Centrella and
Mary Brennan-Centrella,
Plaintiffs,
v.
Civil Action No. 2:14-cv-111-jmc
Ritz-Craft Corporation of Pennsylvania, Inc.
and Mountain View Modular Homes, Inc.,
Defendants.
Ritz-Craft Corporation of Pennsylvania, Inc.,
Cross-Claimant,
v.
Mountain View Modular Homes, Inc.,
Cross-Defendant.
OPINION AND ORDER
(Doc. 174)
On February 12, 2018, the Court issued an Opinion and Order granting, in
part, Plaintiffs Carmine Centrella and Mary Brennan-Centrella’s Application for
Costs and Attorney Fees (Doc. 141), and awarding Plaintiffs $127,273.50 in attorney
fees and $7,567.03 in costs, for a total of $134,840.53. (Doc. 172.) Plaintiffs now file
a Supplemental Application for Attorney Fees and Costs, seeking an additional
award of attorney fees in the amount of $16,770.00 and costs in the amount of
$9,588.20 for their fees and costs incurred primarily after the date they filed their
initial Application for Costs and Attorney Fees.1 (Doc. 174.) Defendant Ritz-Craft
Corporation of Pennsylvania, Inc. (Ritz-Craft) opposes the Supplemental
Application, arguing that the Court should decline to award any additional attorney
fees and costs to Plaintiffs, or in the alternative, award an amount that is
substantially less than that requested. (Doc. 178.)
Both Plaintiffs and Ritz-Craft have filed Notices of Appeal in this case (see
Docs. 179, 185); however, those filings are premature, given that a final judgment
has not yet been entered and the Court has not yet ruled on the pending
Supplemental Application. See Fed. R. App. P. 4(a)(4)(A) (“If a party files in the
district court any of the following motions under the Federal Rules of Civil
Procedure . . . [,] the time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion[.]”) (emphasis added); see also
Festa v. Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 36 (2d Cir. 1990) (per
curiam) (citing Fed. R. Civ. P. 58) (notice of appeal premature because appealedfrom decision was not a final judgment). In any event, the Court has discretion to
consider Plaintiffs’ Supplemental Application for Attorney Fees and Costs at this
Plaintiffs filed their initial Application for Costs and Attorney Fees on September 5, 2017.
(Doc. 141.) The billing records attached to the Supplemental Application include one attorney entry
from before that date: specifically, Attorney Kathryn Kent’s entry indicating 2.5 hours billed on
August 28, 2017 for a conference with Plaintiffs’ expert witness Gregory Mertz. (Doc. 174-3 at 1.)
Likewise, the Invoice of Plaintiffs’ expert witness, which is also attached to the Supplemental
Application, includes entries dated prior to the date the initial Application was filed. (See Doc. 174-4
at 3–4, showing Mertz’s entries indicating approximately 25 hours billed between August 28 and
September 4, 2017.) The Court has included these entries in its consideration of the pending
Supplemental Application, having checked to make sure they do not duplicate entries contained in
the records attached to the initial Application. (Compare Docs. 141-2, 141-3, and 141-4 with Docs.
174-2, 174-3, and 174-4.)
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time, even if the Notices of Appeal had been properly filed. See Barrella v. Vill. of
Freeport, 56 F. Supp. 3d 169, 173–74 (E.D.N.Y. 2014) (where court “previously
rendered a decision on the Plaintiff’s . . . initial application for attorneys’ fees and
costs, and appeals taken by the [Defendants] of that order are pending before the
Second Circuit,” court should rule on supplemental application for fees and costs to
avoid possibility of “piecemeal appeals, which are disfavored in this circuit”); see
also Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004)
(“[N]otwithstanding a pending appeal, a district court retains residual jurisdiction
over collateral matters, including claims for attorneys’ fees.”).
Attorney fees for the preparation of an attorney fee application and other
post-trial motions have been found to be compensable in the Second Circuit and
under Vermont law. See Vermont Human Rights Comm’n v. Benevolent and
Protective Order of Elks, No. 404-8-98 Wncv, 2009 WL 5454429 (Vt. Super. Wash.
Cty. Apr. 6, 2009) (“Plaintiffs are . . . entitled to an award of fees and expenses for
litigating the fee application itself.”); Monahan v. GMAC Mortg. Corp., No. S027501 RcC, 2003 WL 25782721 (Vt. Super. Rutland Cty. Oct. 6, 2003) (“Supplementary
fees that result from prosecution of post[]trial fees have been allowed to prevailing
parties in federal cases dealing with civil rights.”); Weyant v. Okst, 198 F.3d 311,
316 (2d Cir. 1999) (“[A] reasonable fee should be awarded for time reasonably spent
in preparing and defending an application for [statutory attorney] fees.”); Human
Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 252, 668 A.2d 659, 669 (1995) (“plaintiff
is entitled to fees for time spent on the motion [for allowance of attorney’s fees]”);
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see also Walker v. Verizon Pennsylvania LLC, CIVIL ACTION NO. 15-4031, 2017
WL 3675384, at *13 (E.D. Pa. Aug. 25, 2017) (“The prevailing party is entitled to
recover a reasonable fee for the preparation of post-trial motions and fee petitions.”)
(citing Planned Parenthood of Cent. N.J. v. Attorney Gen. of N.J., 297 F.3d 253, 268
(3d Cir. 2002)). In Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979), the Second
Circuit explained the rationale behind the rule that attorney fees for services
performed in connection with a fee application are recoverable:
If an attorney is required to expend time litigating his fee claim, yet may
not be compensated for that time, the attorney’s effective rate for all the
hours expended on the case will be correspondingly decreased. . . . Such
a result would not comport with the purpose behind most statutory fee
authorizations, [v]iz, the encouragement of attorneys to represent
indigent clients and to act as private attorneys general in vindicating
congressional policies. . . . [T]o hold otherwise would permit a deep
pocket losing party to dissipate the incentive provided by an award
through recalcitrance and automatic appeals.
(first omission in original) (citation and internal quotation marks omitted); see
Donovan v. CSEA Local Union 1000, Am. Fed’n of State, Cty. & Mun. Emps., AFLCIO, 784 F.2d 98, 106 (2d Cir. 1986) (“The fee application is a necessary part of the
award of attorney’s fees. If the original award is warranted, we think that a
reasonable amount should be granted for time spent in applying for the award.”)
Nearly 20 years later, the court reiterated this rationale in Weyant v. Okst, 198 F.3d
at 316, stating: “A culpable defendant should not be allowed to cause the erosion of
fees awarded to the plaintiff for time spent in obtaining the favorable judgment by
requiring additional time to be spent thereafter without compensation.”
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Given this law, Plaintiffs are clearly entitled to recover a reasonable fee for
their attorneys’ handling of post-trial motions including their Application for Costs
and Attorney Fees. It is for the Court to determine whether the fee amount
requested in their Supplemental Application is reasonable. See 9 V.S.A. § 2461(b)
(providing for an award of “reasonable attorney’s fees” to plaintiffs demonstrating a
violation of VCPA); L’Esperance v. Benware, 2003 VT 43, ¶ 21, 175 Vt. 292, 830 A.2d
675 (“Where a court finds that the Consumer Fraud Act has been violated, it is not
within the court’s discretion to determine whether to award such fees, but rather its
task is to determine what constitutes reasonable fees in each instance.” (citation
omitted)); Human Rights Comm’n, 164 Vt. at 250 (“Fee awards are to be
reasonable[:] reasonable as to billing rates and reasonable as to the number of
hours spent in advancing the successful claims.” (internal quotation marks
omitted)). As stated above, Plaintiffs seek $16,770.00 in attorney fees for work done
by Plaintiffs’ attorneys since approximately when Plaintiffs filed their initial
Application for Costs and Attorney Fees. Plaintiffs have submitted the relevant
billing records of their attorneys, Joshua Simonds and Kathryn Kent, which
indicate that Simonds spent 33 hours and Kent spent 34.2 hours on post-trial
matters from September 5, 2017 through February 24, 2018 (including one August
2017 entry from Kent, see n.1, supra). (Docs. 174-2, 174-3.) The billing records
further indicate that most of that time was spent drafting replies regarding
Plaintiffs’ Application for Costs and Attorney Fees and Plaintiffs’ Motion for
Prejudgment Interest, respectively, and drafting an opposition to Ritz-Craft’s
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Motion for Post-Trial Relief. (Id.) Therefore, the records reflect that Plaintiffs
spent a total of 67.2 hours on post-trial work since the approximate date when they
filed their initial Application for Costs and Attorney Fees.
In determining the amount of an attorney fee award, the Court must first
calculate the “lodestar,” which is “the product of a reasonable hourly rate and the
reasonable number of hours required by the case.” Millea v. Metro-North R.R. Co.,
658 F.3d 154, 166 (2d Cir. 2011) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552 (2010)). The hourly rates sought by Plaintiffs––$275 per hour for
Attorney Simonds and $225 per hour for Attorney Kent—are those already set by
the Court in its February 12, 2018 Opinion and Order. (See Doc. 172 at 20.)
Therefore, these rates are proper and will be applied here.
Next, the Court finds that the amount of time spent by Plaintiffs’ attorneys
since approximately when they filed their initial Application for Costs and Attorney
Fees was reasonably necessary to their relative success on that Application, as well
as to their successful opposition to Ritz-Craft’s Motion for Post-Trial Relief. Given
the denial of Plaintiffs’ Motion for Prejudgment Interest (see Doc. 172 at 28–29),
however, Plaintiffs are not entitled to recover their fees incurred for the handling of
that Motion. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“Where the
plaintiff has failed to prevail on a claim that is distinct in all respects from his
successful claims, the hours spent on the unsuccessful claim should be excluded in
considering the amount of a reasonable fee.”). The Court is unable to determine
exactly how much time was spent on that Motion alone, but “it is less important
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that judges attain exactitude, than that they use their experience with the case, as
well as their experience with the practice of law, to assess the reasonableness of the
hours spent.” Amato v. City of Saratoga Springs, 991 F. Supp. 62, 66 (N.D.N.Y.
1998) (citing Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992)); Lunday v. City of
Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam) (“We do not require that the
court set forth item-by-item findings concerning what may be countless objections to
individual billing items.”). The Court reduces the fee amount requested by eight
hours at Attorney Simonds’s rate of $275 per hour to account for the time spent on
Plaintiffs’ Motion for Prejudgment Interest. (See Doc. 141-1 at 9; Doc. 141-3 at 2–3;
Doc. 174-1 at 1; Doc. 174-2 at 1–2.)
Therefore, the lodestar amount is $14,570.00, which is the total of 25 hours of
Attorney Simonds’s time at a rate of $275 per hour and 34.2 hours of
Attorney Kent’s time at a rate of $225 per hour. Next, the Court makes a 10%
downward adjustment to the lodestar due to Plaintiffs’ limited success on their
Application for Costs and Attorney Fees. See Kassim v. City of Schenectady, 415
F.3d 246, 253 (2d Cir. 2005) (“The Supreme Court has consistently stressed the
importance of the degree of the plaintiff’s success in the litigation as a factor
affecting the size of the fee to be awarded.”); Hensley, 461 U.S. at 440 (“[W]here the
plaintiff achieved only limited success, the district court should award only that
amount of fees that is reasonable in relation to the results obtained.”). Although
Plaintiffs recovered $127,273.50 in attorney fees pursuant to their Application, they
had sought $165,418.50. (See Docs. 141, 172.) The Court declined to grant
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Plaintiffs’ request in its entirety for the reasons stated in the Court’s February 12,
2018 Opinion and Order, including excessive hourly rates, duplicative and excessive
time spent, Plaintiffs’ success on only one of their three claims in the case, and
various equitable factors. (Doc. 172 at 11–26.) Therefore, the adjusted amount of
supplemental attorney fees awarded is $13,113.00.
Regarding costs, Ritz-Craft contests Plaintiffs’ attempt to recover
Attorney Mertz’s expert witness fees for his work associated with Plaintiffs’ initial
Application for Costs and Attorney Fees. (Doc. 178 at 3.) Ritz-Craft does not argue
that Plaintiffs may not recover these costs, but rather, that Plaintiffs “make no
effort to explain why the amount they seek for expert witness fees . . . is reasonable
under the circumstances.” (Id.) The Court has reviewed Mertz’s Invoice (Doc. 1744), and finds that the number of hours billed is reasonable. Notably, both parties
retained an expert with respect to Plaintiffs’ Application for Costs and Attorney
Fees, and based on the papers submitted to the Court, each of those experts’
involvement in that Application was extensive. (See Doc. 141-5; Doc. 151-1.) The
Court further finds that Attorney Mertz’s hourly rate of $275 per hour is
reasonable, given his experience and qualifications. (See Doc. 141-5 at 1–11; Doc.
141-6.) Finally, the Court finds that the remaining additional costs sought in
Plaintiffs’ Supplemental Application are reasonable. See Reichman v. Bonsignore,
Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987) (“[A]wards of attorney’s
fees . . . under fee-shifting statutes . . . normally include those reasonable out-ofpocket expenses incurred by the attorney and which are normally charged fee-
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paying clients[,] . . . includ[ing] expenses that are incidental and necessary to the
representation, provided they are reasonable.” (citations and internal quotation
marks omitted)). Therefore, the amount of supplemental costs awarded is the
amount requested, $9,588.20.
For these reasons, the Court GRANTS Plaintiffs’ Supplemental Application
for Attorney Fees and Costs (Doc. 174), in part, and AWARDS Plaintiffs an
additional $13,113.00 in attorney fees and an additional $9,588.20 in costs.
The Clerk shall therefore enter JUDGMENT on behalf of Plaintiffs as
follows:
Count I (VCPA claim):
$94,262.00 (pursuant to jury verdict)
Attorney Fees:
$127,273.50
Costs:
$7,567.03
Supplemental Attorney Fees:
$13,113.00
Supplemental Costs:
$9,588.20
TOTAL JUDGMENT:
$251,803.73
Ritz-Craft’s and Plaintiffs’ Notices of Appeal, filed on March 15, 2018
(Doc. 179) and March 29, 2018 (Doc. 185), respectively, will become effective upon
the filing of this Opinion and Order. See Fed. R. App. P. 4(a)(4)(B)(i) (“If a party
files a notice of appeal after the court announces or enters a judgment—but before it
disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to
appeal a judgment or order, in whole or in part, when the order disposing of the last
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such remaining motion is entered.”); Jim Billado Roofing, LLC v. Custom Copper &
Slate, Ltd., No. 1:08-CV-97, 2010 WL 1881097, at *3 (D. Vt. May 10, 2010).
Dated at Burlington, in the District of Vermont, this 11th day of April 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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