may charge an hour for the preparation of a two page letter is not necessarily indicative of the time and research expended in preparing the letter. For all of these reasons, the Court concludes that it would be unfair to set some arbitrary figure and the "reasonable" time necessary to prepare a case for trial and, accordingly, the Court rejects the argument that it should allot plaintiff 200 hours for the preparation of this case.
Defendant argues next that the time charged for specific items performed by counsel is unreasonable. In support of this argument, the defendant challenges 22 separate items of work performed by plaintiff's counsel and seeks to demonstrate that counsel either overcharged for that work, or used an unusual amount of time to complete his task. Defendant's Memorandum in Response to Motion for Attorney's Fees and Costs at Part II. At first glance, defendant's point appears to be well taken with respect to some of the items claimed by plaintiff's counsel. But, as this Court has noted above, while it may take only five minutes to dictate, review and sign a letter, the actual preparation of that letter may consume more time based upon counsel's consideration of what the letter should or should not contain. That may be a tactical decision, and unless the Court can find that the time is clearly unreasonable, the claim should be allowed.
In response to the defendant's itemized attack on his claim, plaintiff's counsel filed a lengthy and detailed affidavit consisting of 36 pages. He addresses each of the 22 items objected to by the defendant. In the view of this Court, he has adequately explained each of the items, and the time used thereon. The one item that raised some concern was item 20 in which plaintiff's counsel claimed 34.5 hours for preparation of responses to defendant's interrogatories relating to the expert witness plaintiff intended to call at trial. The response prepared by plaintiff's counsel is detailed and complete. He sets forth the 12 opinions the expert expected to express during the trial and additionally sets forth, by reference to the depositions of defendant's witnesses, those facts upon which he bases his opinion. See Defendant's Opposition Exhibit DD. These answers were not volunteered by plaintiff, but were given in response to interrogatories propounded by defendant which required detailed responses. After reviewing defendant's interrogatories, plaintiff's responses thereto, and the supporting affidavit filed by Mr. Wallace, the Court cannot say that the claimed hours are unreasonable.
After carefully reviewing Part II of defendant's opposition and the responses thereto, the Court concludes that the defendant's objections are not well taken and that the time expended by plaintiff's counsel was reasonable.
Another issue raised by defendant is whether the plaintiff is entitled to recover counsel fees for her attorney's services relating to her unemployment compensation claim. The amount involved is relatively small, approximately $ 806.25. While it is true that she did not prevail on this claim, the plaintiff's attorney sets forth the reasons why he felt it was necessary to pursue this claim in relation to plaintiff's discrimination action. He correctly notes that one of the issues in the discrimination case was whether she voluntarily took leave of her job at the defendant's restaurant. She contended throughout that she did not and she ultimately prevailed on that issue before this Court. As her counsel notes, this issue must be judged on the state of the law in 1977. At that time he felt it was necessary to pursue the unemployment compensation claim in order to protect her rights. See Wallace affidavit at 3-8. Under the circumstances, the Court concludes that this portion of the claim is proper and the claim will be allowed.
The final issue before the Court is whether it should allow for an upward adjustment in the fee award. As the Supreme Court has noted: "Where a plaintiff has obtained excellent results, [her] attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1940, 76 L. Ed. 2d 40 (1983). But this does not mean that an attorney is entitled to an upward adjustment as a matter of course, or simply because the action involves a claim of discrimination. The ultimate issue is whether enhancement is necessary in order to provide fair and reasonable compensation. Blum v. Stenson, 465 U.S. 886, 901, 104 S. Ct. 1541, 1550, 79 L. Ed. 2d 891 (1984). Where there is a request for enhancement, the plaintiff has the burden of demonstrating that her attorney is entitled to an upward adjustment.
Here, counsel for the plaintiff seeks an upward adjustment for risk of nonpayment and delay in payment. He seeks a fifty percent adjustment for each.
In this circuit, the guidelines for making adjustments are set forth in Murray v. Weinberger, supra. With respect to the risk of nonpayment, the Murray court noted that, "the upward adjustment is not proper when: (1) the lodestar itself comprehends an allowance for the contingent nature of fee payment; or (2) the fee applicant bore little or no risk of nonpayment because of a fee arrangement with the client; or (3) the case is not exceptional within the meaning of Blum v. Stenson." 239 U.S.App.D.C. at 272, 741 F.2d at 1431.
The facts in this case differ from those in Murray. Here, Mr. Wallace entered into a contingent fee arrangement with the plaintiff and was not entitled to recover fees unless he was successful. In Murray, both attorneys had arrangements which guaranteed payment of at least a portion of the fees regardless of the outcome of the case. Id. Moreover, the risk of nonpayment in this case was not the same as in the average case on the relevant market. Id. The plaintiff's claim was not an easy one. She was attempting to convince the trier of fact that she was the victim of discrimination. While it is true that there had been a statement referring to her age, that was not given as the reason for her transfer to another dining room. Moreover, this was a case where one could argue, and indeed defendant did argue, that the transfer was much to do over nothing. It was suggested that the plaintiff's complaint was nothing more than an argument over status because it was generally felt among the dining room employees that one who worked in the Executive Dining Room was entitled to a higher status than one working in the regular dining room. Her pay was not reduced, although the transfer did reduce her chances for overtime. The plaintiff's version of the facts was opposed by the chef, a gentleman who had been trained in France. This was not the case where there had been a clear adverse action, such as a reduction in pay, a failure to promote, or a discharge in employment. Unlike the usual discrimination suit, plaintiff was required to demonstrate that she had suffered some adverse action as the result of the transfer.
The above facts satisfy this Court that the risk of nonpayment in this case was greater than the risk of nonpayment in the average case in the relevant market. In this regard, this is an exceptional case and the result that counsel obtained was also exceptional.
Weighing the above factors, the Court concludes that plaintiff's counsel is entitled to a upward adjustment for the risk of nonpayment. That risk is not reflected in the $ 75.00 hourly rate charged by Mr. Wallace. The Court must part company with plaintiff, however, on the question of the amount of the adjustment for this category. Plaintiff seeks 50 percent, the Court concludes that a 25 percent adjustment is fair and reasonable.
Plaintiff also seeks an upward adjustment for delay in payment. Here, "the court should determine whether the hourly rates incorporated into the lodestar figures for plaintiff's attorney contain increments for the delay in payment that was expected in this case." Murray, supra, 239 U.S.App.D.C. at 273, 741 F.2d at 1422. Plaintiff's counsel alleges that his current rates would range between $ 150 to $ 175, but offers no further support for those figures. The Court concludes that the $ 75.00 hourly rate did not reflect an adjustment for delay in payment. This determination is made based upon the rate charged by Mr. Wallace, $ 75.00 which was certainly reasonable and the length of time he has had to wait for payment.
The Court concludes that an upward adjustment is proper under the facts of this case. Once again, the Court parts company with the plaintiff as to the amount of the adjustment. Plaintiff seeks an upward adjustment of 50 percent, the Court concludes that an upward adjustment in the amount of 15 percent is reasonable.
In sum, the Court holds that plaintiff is entitled to recover the full amount of the costs claimed, $ 1,576.02. The Court holds further that the hourly rate of $ 75.00 is reasonable and that the time claimed, 551.5 hours is reasonable. Thus plaintiff is entitled to a basic attorney's fee award of $ 41,362.50. Finally, the Court concludes that the fee award should be enhanced by a 25 percent upward adjustment for the risk of nonpayment, that figure being $ 10,340.63, and a 15 percent upward adjustment for delay in payment, that figure being $ 6,204.38. The total award for attorney's fees and costs, including the upward adjustments amounts to $ 59,483.53. Judgment will be entitled in favor of the plaintiff in the above amount.
It is hereby
ORDERED that plaintiff's motion for an award for attorney's fees and costs is granted, and it is further
ORDERED that judgment is entered in favor of the plaintiff against the defendant in the amount of $ 59,483.53, representing a award for attorney's fees and costs in this action.
© 1992-2004 VersusLaw Inc.