Roccisano v. Twp. of Franklin
| Decision Date | 11 June 2015 |
| Docket Number | Civ. Action No. 11-6558 (FLW)(LHG) |
| Parties | PATRICIA ROCCISANO, Plaintiff, v. TOWNSHIP OF FRANKLIN, TOWNSHIP OF FRANKLIN POLICE DEPARTMENT, ROBERT NEMES, ELLIOT SMITH, and JOHN DOES 1-10 (fictitious names) Defendants. |
| Court | U.S. District Court — District of New Jersey |
* NOT FOR PUBLICATION *
In the instant application, Plaintiff Patricia Roccisano ("Roccisano" or "Plaintiff") seeks $199,737.50 in attorneys' fees and $19,851.41 in costs in connection with legal services rendered by Jae H. Cho, Esq. ("Cho"), of the law firm Cho Legal Group LLC, his associate, Kristen Logar, Esq. ("Logar"), and two former partners,1 Thomas J. Whitney, Esq. ("Whitney") and Bill G. Lomuscio, Esq. ("Lomuscio") (collectively, "Plaintiff's Counsel") in litigating this suit, wherein Plaintiff obtained a jury verdict in her favor on her Section 1983 claim against Defendant Officer Robert Nemes ("Nemes"). Counsel for Defendants Kurt J. Trinter, Esq. ("Trinter" or "Defense Counsel") of the law firm Dvorak & Associates, LLC, does not dispute that Plaintiff is entitled to a fee award and costs, but disputes the requested amounts. The only issue on this motion is theamount of fees to be awarded. For the reasons set forth before, the Court will award Plaintiff's Counsel $54,600 in attorneys' fees and $3099.64 in costs.
In August 2011, Plaintiff requested that Cho represent her and her adult daughter, Kristi Kizmann, in a suit against Defendants Nemes, Officer Elliot Smith ("Smith") (Nemes and Smith collectively "Officers"), Township of Franklin, and Township of Franklin Police Department (collectively, "Defendants") stemming from the Officers' alleged use of excessive force in arresting Plaintiff after responding to a domestic violence dispute between Plaintiff and her daughter at Plaintiff's residence on October 17, 2011 arrest. See Pl.'s Br. In Support of Application for Award of Attorneys Fees and Costs at 1 ("Pl.'s Br."); see also Roccisano v. Twp. of Franklin, No. 11-cv-6558, 2013 WL 3654101, at *1 (D.N.J. July 12, 2013). In their retainer agreement, Cho "agreed to represent [Plaintiff] on a standard New Jersey contingency basis, as provided under the New Jersey Rules of Court." Certification of Jae H. Cho, Esq. at ¶ 10 ("Cho Cert.").
In October 2011, Plaintiff and Ms. Kizmann filed a complaint in New Jersey state court, which Defendants removed to this Court. In the complaint, Plaintiffs alleged thirteen counts, including a claim under 42 U.S.C. § 1983 for use of excessive force, as well as multiple state law claims. See Roccisano v. Twp. of Franklin, No. 11-6558 (FLW), 2013 WL 3654101 at *2. In April 2012, Ms. Kizmann voluntarily dismissed all of her claims. Id. In August 2012, Plaintiff voluntarily dismissed eight of her claims. Id. Following the filing of a Motion for Summary Judgment, Plaintiff agreed to the dismissal of the dismissal of all claims against Defendants Township of Franklin and Township of Franklin Police Department, and all but the excessive force claim and a state law negligence claim against the Officers. Id. Summary judgment was granted on the negligence claim. Id.
Thus, the trial involved only Ms. Roccisano, and one charge under § 1983 for excessive force against Officers Nemes and Smith. Following a four-day trial in November 2014, the jury rendered a verdict for Plaintiff against Nemes in the sum of $1,000; the jury returned a verdict of no cause of action as to Smith. After the verdict, and before the jury considered punitive damages against Nemes, Plaintiff and Nemes settled the matter for $18,000, but did not resolve the issue of Plaintiff's attorneys fees. Instead, the Court set a schedule for the filing of Plaintiff's Motion for fees and costs. This contested Motion followed.
Plaintiff's primary attorney, Mr. Cho, graduated from Syracuse University College of Law in 2004.2 Cho Cert. at ¶ 5. After law school, he clerked for the Honorable Howard H. Kestin of the Appellate Division of the Superior Court of New Jersey. Id. at ¶ 6. From 2005 to 2007, Cho was an associate at the law firm of Hill Wallack LLP in Princeton, New Jersey. Id. at ¶ 7. According to Cho, he "practiced primarily litigation in both federal and state courts as well as appellate work." Id. Cho further stated that he "represented clients of all sizes including Fortune 50 companies." Id. In 2007, Cho started working as a foreign legal consultant at the law firm of Lee International in Seoul, Korea. Id. at ¶ 8. In that role, Cho "worked on cross-border transactional matters and international arbitration matters." Id. Cho currently practices litigation, appellate work, and transactional matters in New York and New Jersey. Id. ¶¶ 4, 9.
Throughout Plaintiff's representation, Cho has represented Plaintiff "as a solo or with partners." Id. at ¶ 9. Cho certified that he "performed a substantial amount of [work on] this case," such as communicating with his client, preparing the complaint, and trying the case to verdict. Id.at ¶ 16; see Pl.'s Ex. A, Invoice of Jae H. Cho, Esq. ("Cho's Invoice"). In January 2012, Whitney began to work with Cho as a partner at Cho & Whitney LLC. Id. at ¶ 11.
Whitney graduated from Syracuse University College of Law in 2004.3 Certification of Thomas J. Whitney, Esq. at ¶ 4 ("Whitney Cert."). He has "practiced law in New Jersey since 2005, primarily as a litigator in state and federal court." Id. During his tenure at Cho & Whitney LLC, Whitney averred that he "was the primary attorney" on Plaintiff's case. Id. at ¶ 5. Whitney explained that he spent a substantial amount of time conducting discovery and drafting opposition to Defendants' motion for summary judgment. Id. at ¶¶ 10, 12.
In June 2013, however, Cho & Whitney dissolved. See Cho Cert. at ¶ 11. Beginning in October 2013, Lomuscio began to work with Cho at Cho Lomuscio LLC. Id. at ¶ 12. Lomuscio graduated from New York Law School in 2002, and then "practiced law primarily as a litigator in both state and federal courts."4 Bill G. Lomuscio Certification at ¶¶ 3-4 ("Lomuscio Cert."). After the partnership was formed, Lomuscio became the lead counsel on Plaintiff's case. Id. at ¶ 5. As lead counsel, Lomuscio stated that he performed a substantial amount of work on the matter. Id. at ¶¶ 6. For example, Lomuscio met with Plaintiff on several occasions, and he drafted a brief in support of a motion to amend the complaint. Pl.'s Ex. C, Invoice of Bill G. Lomuscio, Esq. ("Lomuscio's Invoice"). Cho Lomuscio LLC dissolved in 2014, and Cho subsequently formed Cho Legal Group LLC. Id. at ¶¶ 1, 12.
Kristen M. Logar has been employed as an associate with Cho since 2012.5 Id. She "practiced law [at] the firms Cho & Whitney, LLC, Cho Lomuscio, LLC, and now Cho Legal Group, LLC." Certification of Kristen M Logar, Esq. at ¶ 3. Logar graduated from Rutgers School of Law - Camden in 2008, and then she clerked for the Honorable Marc M. Baldwin in the Superior Court of New Jersey.6 Id. According to Logar, she did substantial work on this case. For example, Logar reviewed depositions, performed research, reviewed drafts of the complaint and motions. Pl.'s Ex. D, Invoice of Kristen M. Logar, Esq. ("Logar Invoice").
In the instant application, Plaintiff's Counsel requests $199,737.50 in attorneys' fees and $19,851.41 in costs. Specifically, Cho's attorney fee is $107,012.50 for a total of 305.75 hours at a rate of $350.00 per hour. Cho Cert. at ¶ 16. Whitney's attorney fee is $56,175.00 for a total of 160.5 hours at a rate of $350.00 per hour. Whitney Cert. at ¶ 13. Lomuscio's attorney fee is $9,800.00 for a total of 28 hours at a rate of $350.00 per hour. Lomuscio Cert. at ¶¶ 7, 16. Finally, Logar's attorney fee is $26,750.00 for a total of 133.75 hours at $200.00 per hour. Logar Cert. at ¶¶ 4, 6. Plaintiff's Counsel additionally requests $19,851.41 in costs.
In general, "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser" unless there is an express statutory authorization to the contrary. Alyska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); see Sole v. Wyner, 551 U.S. 74, 77 (2007). The Civil Rights Attorneys' Fees Award Act of 1976, is an expressstatutory authorization, permitting federal district courts to allow, in their discretion, "the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 19887; see Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001) (). As noted by the Supreme Court, "the statute does not explain what Congress meant by a 'reasonable' fee, and therefore the task of identifying an appropriate methodology for determining a 'reasonable' fee was left for the courts." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010).
In the Third Circuit, the "lodestar method" is used to calculate attorneys' fees. See Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). "There is a strong presumption that the lodestar is a reasonable fee." Dee v. Borough of Dunmore, 548 Fed. App'x 58, 60 (3d Cir. 2013). However, in its discretion, "a court may adjust this figure upward or downward when the lodestar is unreasonable." Id. To determine reasonable attorneys' fees, "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. As such, the lodestar method has two components: the time expended and the rate charged. Wade v. Colaner, No. 06-3715 (FLW), 2010 WL 5479624, at *3 (D.N.J. Dec. 28, 2010).
To begin, the party seeking attorneys' fees "must produce evidence that the hours spent and rate charged are reasonable." Dee, 548 Fed....
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