Blakey v. Continental Airlines, Inc., Civ. No. 93-2194(WGB).

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: Bassler
• Citation: 2 F.Supp.2d 598
• Decision Date: 09 April 1998
• Docket Number: Civ. No. 93-2194(WGB).
• Parties: Captain Tammy S. BLAKEY, Plaintiff, v. CONTINENTAL AIRLINES, INC., a foreign corporation, Defendant.

2 F.Supp.2d 598 Captain Tammy S. BLAKEY, Plaintiff,
v.
CONTINENTAL AIRLINES, INC., a foreign corporation, Defendant. Civ. No. 93-2194(WGB). United States District Court, D. New Jersey. April 9, 1998.

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Law Offices of Linda B. Kenney, Red Bank, NJ by Linda B. Kenney, Gregory S. Schaer, Short Cressman & Burgess, PLLC Seattle, WA by David E. Breskin, for Plaintiff.

Epstein Becker & Green, PC, Newark, NJ by Robert H. Bernstein, Mark D. Lurie, Michael D. Markey, for Defendant.

OPINION

BASSLER, District Judge.

As a prevailing party, Plaintiff Tammy S. Blakey moves for an award of attorney's fees in the amount of $1,892,552.25 and costs in the amount of $245,310.00, including a requested 50% contingency enhancement. She also requests an award of prejudgment interest as a prevailing party. For the reasons set forth below, the Court awards Plaintiff $764,649.83 in attorney's fees, $210,912.24 in costs and prejudgment interest on the $625,000 remitted damages award.

I. BACKGROUND

Plaintiff Tammy S. Blakey ("Blakey") filed suit in 1993 alleging 1) hostile work environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq.; 2) disparate treatment sex discrimination in violation of Title VII and LAD; 3) retaliation in violation of Title VII, LAD, and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et

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seq. ("CEPA"); 4) defamation; and 5) violation of public policy.

The Court dismissed Blakey's public policy claim on June 16, 1995 and granted summary judgment dismissing her defamation claim on March 9, 1997. The remaining claims were tried for five weeks in September and October 1997. At the close of her case, Blakey voluntarily dismissed her CEPA claim. On October 16, 1997, the jury returned a verdict in favor of Blakey on her sexual harassment claim, but rejected her claims of disparate treatment sex discrimination and retaliation. The Court entered judgment on the jury's verdict of $875,000 on November 5, 1997.¹

Subsequent to the trial, Continental moved for a new trial on damages, or in the alternative, for remittitur. On January 30, 1998, this Court remitted Blakey's emotional distress damages award to $250,000 and conditionally granted Continental a new trial on damages if Blakey refused to accept the remittitur. On March 3, 1998, the Court denied Blakey's motion for reconsideration of the remittitur. Blakey accepted the remittitur and the Court entered an amended judgment on the remitted verdict of $625,000 on April 2, 1998.

Blakey now moves for an award of attorney's fees in the amount of $1,892,552.25, costs in the amount of $ 245,310.65 and prejudgment interest, pursuant to both 42 U.S.C. § 2000e-5(k) and N.J.S.A. 10:5-27.1. Blakey also seeks a 50% contingency enhancement on the fees and costs for both firms; the figures above reflect this enhancement. Blakey represents her prejudgment attorney's fees and costs through October 31, 1997 as follows:

LAW OFFICES OF LINDA B. KENNEY:
                 Total Prejudgment Fees: $ 517,938.00
                 Total Prejudgment Costs: $ 11,522.97
                 ____________
                 Total Prejudgment Fees and
                 Costs: $ 529,460.972
                SHORT CRESSMAN & BURGESS:
                 Total Prejudgment Fees: $ 625,013.50
                 Total Prejudgment Costs: $ 37,753.16
                 ____________
                 Total Prejudgment Fees and
                 Costs: $ 662,766.66
                

Blakey has also submitted her fees and costs for postjudgment work:

LAW OFFICES OF LINDA B. KENNEY:
                 Total Postjudgment Fees: $ 27,615.00
                 Total Postjudgment Costs: $ 1,828.36
                 ___________
                 Total Postjudgment Fees and
                 Costs: $ 29,443.36
                SHORT CRESSMAN & BURGESS:
                 Total Postjudgment Fees: $ 91,135.00
                 Total Postjudgment Costs: $ 14,724.75
                 ___________
                 Total Postjudgment Fees and
                 Costs: $105,859.75
                

Blakey asserts she has paid an additional $146,566.79 in reimbursable prejudgment costs. Blakey also seeks prejudgment interest in the amount of $192,835.61.³

Not surprisingly, Continental objects. Continental first argues that Blakey's fees are unreasonable because her calculations include fees for work that was undocumented, duplicative and improper. Continental also challenges Blakey's inclusion of fees for work on claims that were ultimately unsuccessful before the jury. Continental further asserts that Blakey is not entitled to a contingency enhancement or to prejudgment interest. The Court heard oral argument on the issue of fees on March 20, 1998.

II. DISCUSSION

A. Blakey's Entitlement to Attorney's Fees

A prevailing party is entitled to recover reasonable costs and attorney's fees under both Title VII and LAD. See 42 U.S.C. § 2000e-5(k); N.J.S.A. 10:5-27.1.⁴ A "prevailing"

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plaintiff entitled to a fee award is one who has succeeded on "any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). Although Blakey did not succeed on all claims, she is still a prevailing party because she succeeded on her sexual harassment claim. She is therefore entitled to a reasonable fee award under both Title VII and LAD.

B. Reasonable Attorney's Fees and Costs

Federal and state law on attorney's fee awards is generally similar, with the major exception of the contingency enhancement, discussed below in Section B.3, which is only available under state law. Since the parties did not ask the jury to make separate findings on the Title VII and LAD claims and because Blakey prevailed on claims that exist under LAD, New Jersey law will be used where applicable.

The starting point for determining any reasonable fee is to calculate a "lodestar" amount; that is, the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433; Rendine v. Pantzer, 141 N.J. 292, 334-35, 661 A.2d 1202 (1995). The lodestar calculation requires the Court to "carefully and critically" evaluate the hours and the hourly rate put forth by counsel. Rendine, 141 N.J. at 334-35, 661 A.2d 1202. The party requesting fees bears the burden of proving that the request is reasonable. In response, the party challenging the fee petition must make specific objections to the requested fee. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). The district court cannot decrease a fee award based on factors not raised at all by the adverse party. Id. However, once the adverse party raises specific objections to the fee request, the district court has a great deal of discretion to adjust the award in light of those objections. Id.

1. Reasonable Rate

In determining a reasonable hourly rate, the court should assess the skill and experience of the prevailing attorneys and compare their rates to the rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. Rendine, 141 N.J. at 337, 661 A.2d 1202. Furthermore, to take into account delay in payment, the hourly rate should be based on current rates rather than the rates in effect when the services were performed. Id.

Blakey seeks an award of fees for her attorneys at the following hourly rates:

 Requested
                  Rate 
                David E. Breskin (Lead Counsel): $350
                Linda B. Kenney (Lead Counsel): $350
                Margaret E. Easton (Partner): $250
                Gregory S. Schaer (Associate): $250
                Nancy S. Martin (Associate): $200
                Chris Farias (Contract Attorney): $195
                Jennifer Dike (Associate): $155
                Joseph P. Kreoll (Associate): $150
                Darren M. Gelber (Associate): $150
                Sharra A. Greer (Associate): $150
                Barbara Bell (Paralegal): $100
                Joanne Lane (Paralegal): $85
                

Kenney states that her current rate is $350/hour. In support of the requested rate of $350/hour, Kenney submits affidavits from several practitioners asserting that her former rate of $300/hour is reasonable. Breskin relies on the same affidavits in support of his request for $350/hour. Although the Court agrees that Kenney and Breskin are skilled and experienced attorneys specializing in the field of employment law, they have not presented sufficient evidence that the prevailing rate in New Jersey's legal community for lawyers of comparable skill and experience is as high as $350/hour.

The Court does not have the benefit of expert testimony on the prevailing billing rates in the employment law field. In the future, this Court will appoint its own expert to advise the Court on this issue. The Court has been presented with the affidavits of practitioners and the opinions of other courts. Of the eight affidavits submitted in support of Kenney's and Breskin's requested rate, only two refer to rates as high as $350/hour, and those references are conclusory and unsupported. See Certification of Pat Breuninger, Kenney Cert., Exh. C (stating generally that "many other attorneys in this area with similar qualifications and expertise [are] billing at rates as high as $350.00 per

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hour"); Certification of Neil Mullin, Kenney Cert., Exh. P (same). No affidavits were submitted from attorneys who actually bill clients at $350/hour. Furthermore, these two affidavits must be considered in light of the several other affidavits indicating that $300/hour is the prevailing market rate for plaintiffs' employment lawyers.⁵

Similarly, $300/hour is the highest rate reflected in the eight judicial opinions submitted to the Court. See, e.g., Montels v. Haynes, Kenney Cert., Exh. B (awarding Kenney $300/hour in January 1997). Continental has not directly contradicted $300/hour as unreasonable. There is some merit to Continental's argument that Kenney's affidavits are from members of the plaintiffs' bar who stand to benefit from self-serving declarations. But the certifications submitted by Continental reflect the hourly rates of the defendants' bar, who operate under very different economic imperatives. These...