Andujar v. Gen. Nutrition Corp.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Docket NumberCivil No. 14-7696 (JS)
Decision Date20 August 2018


Civil No. 14-7696 (JS)


August 20, 2018

Doc. Nos. 67, 81


This matter is before the Court on plaintiff's "Motion for Attorney's Fees, Costs, [Prejudgment Interest] and Negative Tax Consequences" [Doc. No. 67]. Also before the Court is defendant's Motion to Strike the Amended Reply Affidavit of Plaintiff's Counsel" [Doc. No. 81]. The Court received the parties' extensive opposition and supplemental submissions [Doc. Nos. 68, 75, 76, 78, 83, 84, 88, 89, 90, 92, 107 and 108] and held oral argument. For the reasons to be discussed, plaintiff's motion is granted in part and denied in part and defendant's motion is denied. The Court grants a statutory attorney fee of $127,215.00 (lodestar) plus an enhancement of 25% or $31,803.75, for a total attorney fee award of $159,018.75. The Court also awards costs in the amount of $1,823.80, prejudgment interest in the amount of $1,207.64, and negative tax consequences in an amount to be determined. The enforcement of this award is stayed

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at least until the Third Circuit rules on defendant's pending appeal.


The parties are familiar with the background of this matter so there is no need to set out a detailed summary. The Court incorporates by reference the background set forth in its February 28, 2018 Opinion denying defendant's motion for a new trial or in the alternative amending the judgment. 2018 WL 1087494 (D.N.J. Feb. 28, 2018). Briefly, plaintiff alleged he was terminated from his job as the Manager of a General Nutrition store on account of his age. On October 26, 2017, the jury returned a verdict in plaintiff's favor finding defendant violated the New Jersey Law Against Discrimination ("NJLAD"). Plaintiff was awarded $123,926 in back pay, $75,000 in emotional distress damages and $60,000 in front pay damages, for a total damage award of $258,926. Judgment in this amount was entered on October 30, 2017. [Doc. No. 66]. On February 28, 2018, defendant's motion for a new trial or to amend the judgment was denied. [Doc. Nos. 85, 86]. Defendant appealed the decision to the Third Circuit where the appeal is pending.1

Plaintiff seeks an award of attorney's fees, costs and prejudgment interest. Plaintiff also seeks an award for the

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negative tax consequences resulting from the judgment. Plaintiff requests a lodestar of $130,500 in fees, plus an enhancement of 50%. Plaintiff also requests $1,823.90 in costs, $2,481.42 in prejudgment interest and $69,443.00 for negative tax consequences. Defendant asserts various objections to plaintiff's requests which will be discussed herein.

For present purposes it is important to discuss how plaintiff's counsel proposes to compute his final fee. Plaintiff's retainer agreement provides he is to be paid a contingency fee of 45% of the net recovery. At first plaintiff contended he was entitled to the full amount of his Court awarded fee plus his contingency fee. In other words, a dual fee recovery.2 Plaintiff proposed to pay a 1/3 referral fee of his 45% net recovery to his referring attorney. In addition, plaintiff proposed to pay a 1/3 referral fee of the Court's fee award to the referring attorney.3 Defendant did not object to

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counsel's proposed dual recovery but argued this should be taken into account when determining whether a lodestar enhancement should be awarded and the percentage.4

After the Court questioned counsel's proposed dual recovery and asked for supplemental briefs on the issue, counsel

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submitted a new proposal to calculate his attorney fee. See Plaintiff's July 5, 2018 LB. Counsel now proposes that he is entitled to 45% of the jury award plus 45% of the attorney fee award. According to counsel, plaintiff will not only receive 55% of the jury award, but also "fifty-five cents (55¢) on every dollar awarded, including any award of attorney's fees and costs." Id. at 1.5 Defendant opposes plaintiff's new computation as excessive. See July 17, 2018 LB, Doc. No. 108.


The parties do not dispute that a party that prevails on a NJLAD claim is entitled to a reasonable attorney's fee award. N.J.S.A. 10:5-27.1. There also is no dispute that plaintiff is a prevailing party since plaintiff succeeded on a "significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit." P.N. v. Clementon Board of Education, 442 F.3d 848, 855 (3d Cir. 2006)(citation and quotation omitted). In addition, the parties do not dispute the starting point in the attorney's fee analysis is to determine the lodestar amount. Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir 2001). The lodestar is computed by multiplying the reasonable hourly rate by the reasonable number of hours expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The

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lodestar is presumptively reasonable but may require subsequent adjustment. United Automobile Workers Local 259 Social Security Dept. v. Metro Auto Center, 501 F.3d 283, 290 (3d Cir. 2007).

1. Hourly Rate

Plaintiff asks for an hourly rate of $450. The Court finds this rate is reasonable and appropriate in the case. A reasonable hourly rate is calculated according to the prevailing market rate in the community. S.D. v. Manville Bd. of Educ., 989 F. Supp. 649, 656 (D.N.J. 1998). "This burden is normally addressed by submitting the affidavits of other attorneys in the relevant legal community, attesting to the range of prevailing rates charged by attorneys with similar skill and experience." Id. A court should assess the skill and experience 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. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The party seeking to recover attorney's fees has the initial burden of "producing sufficient evidence of what constitutes a reasonable market rate for the essential character and complexity of the legal services rendered in order to make out a prima facie case." Lanni, 259 F.3d at 149.

Plaintiff's counsel's certification, affidavits and representations reveal he is an experienced and skilled

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employment law litigator. Richard M. Pescatore, Esquire, has been admitted to the Bar for over 30 years and he has been a Certified Trial Attorney since the mid-1990's (Certification of Counsel ("Cert.") ¶4, Doc. No. 67-1). Counsel has handled hundreds of employment law cases. Amended Affidavit ("Am. Aff.") ¶6, Doc. No. 78. Further, counsel has submitted the affidavits of three (3) experienced South Jersey employment law litigators who attest to the fact $450 per hour is a reasonable hourly rate in the South Jersey legal community for an attorney of Mr. Pescatore's skill and experience. See Exhibit B to Plaintiff's Motion, Doc. Nos. 67-5, 68.6 Based on plaintiff's submissions, the Court will award plaintiff's counsel an hourly rate of $450.00 per hour.

Defendant argues counsel's hourly fee should be rejected because counsel did not provide information concerning his skill, experience, reputation and employment experience. Defendant's Opposition Brief ("Opp.") at 6, Doc. No. 75. The Court disagrees. As noted, plaintiff's counsel's certification and affidavits attest to this information. Notably, defendant does not otherwise challenge plaintiff's $450.00 per hour fee. Accordingly, the Court rules that plaintiff's $450.00 per hour fee for the work done on this case is reasonable and appropriate.

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2. Reasonableness of Fees

The parties do not dispute plaintiff is entitled to a reasonable attorney's fee as a prevailing party in the case. As noted, the lodestar provides the starting point for determining a reasonable attorney's fee. Lanni, 259 F.3d at 149. The lodestar is calculated by multiplying a reasonable hourly rate by the number of hours the moving counsel reasonably billed for the litigation. Id. A district court may discount any hours that it deems unreasonable, including those considered to be "excessive, redundant, or otherwise unnecessary[.]" See Hensley, 461 U.S. at 433. Although the Court has substantial discretion to determine what constitutes a reasonable billing rate and reasonable hours, once the lodestar is determined it represents the presumptive reasonable fee. Lanni, 259 F.3d at 149.

After the lodestar amount is calculated a court has discretion to adjust the fee up or down based on a number of different factors. Id. at 151; Pub. Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). These factors include, but are not limited to: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time

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limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship of the clients; and (12) awards in similar cases. Hensley, 461 at 429-30 n.3.

A plaintiff's fee petition must be specific enough to allow the court to determine if the hours claimed are unreasonable for the work performed. Washington v. Phila. County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir. 1996). Nevertheless, exacting detail is not necessary: "a fee petition should include some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations.... However, it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted...

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