The opinion of the court was delivered by: Leighton, District Judge.
This action is before the court on plaintiff's motion for an
award of costs and attorneys' fees. Plaintiff's complaint had
alleged that he had been discharged from employment by Playboy
because of his age, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. A settlement was
eventually agreed to, the terms of which are irrelevant for the
purposes of the motion now before the court. Playboy claims that
it agreed to settle solely because it wished to avoid the cost of
continued litigation, and opposes any award whatsoever.
In support of his motion for costs and fees, plaintiff's
counsel merely submitted a schedule listing dates, short
descriptions, and number of hours spent. Claiming that he spent
a total of 99.75 hours since 1978 at $100.00/hour, and listing
enumerated costs in the aggregate amount of $600.75, plaintiff's
counsel requests an award of $10,575.75. No supporting memorandum
was filed. This court set the motion for costs and fees on a
briefing schedule, and Playboy's counsel filed a detailed
memorandum opposing any award, along with supporting affidavits.
Plaintiff's counsel was given ample opportunity to reply, and
failed to do so by May 18, 1981, the date set by the briefing
schedule. On May 29, 1981, after the case was called for ruling,
plaintiff's counsel's office obtained an extension of time within
which to file a reply, and did then respond to Playboy's
opposition. For the following reasons, plaintiff's request for
fees is denied in its entirety, and certain costs are allowed as
set forth below.
Preliminarily, this court finds noteworthy the analysis set
forth in Boe v. Colello, 447 F. Supp. 607, 610 (S.D.N.Y. 1978):
This Court's experience, both at the bench and bar
over extended years, qualifies it to estimate the
time reasonably required by plaintiffs' claims in
terms of research, analysis and drafting of various
documents. Moreover, the Court's own research, study
and analysis of the respective contentions of the
parties further afford some yardstick by which to
measure plaintiffs' attorney's allegations of the
time factor. Any expenditure of time beyond that
which is reasonably required suggests either
inexperience and devotion of more time than warranted
to fairly and properly present claims or,
alternatively, that the attorneys, however
experienced, engaged in dilettantism; a losing side
is not required to pay for such indulgences.
Unlike Boe, the defendant in this case settled. Accordingly, the
analysis used there is even more persuasive. Moreover, this court
also deems noteworthy the case of Brown v. Stackler,
612 F.2d 1057, 1059 (7th Cir. 1980), where the court of appeals affirmed
the district court's refusal to award fees, noting that the case
was plain and simple, that the number of hours allegedly billed
was manifestly unreasonable, and that claimants might otherwise
be encouraged to request outrageous fees knowing that the only
unfavorable consequence would be reduction to what should have
originally been asked for.
In denying the request for fees in toto, this court has taken
into consideration the following. First, it soon became evident
that plaintiff's lost wages would amount to no more than $8,200.
Nevertheless, counsel persisted in maintaining that plaintiff's
back wages would come to $57,934.51. Second, Playboy offered to
settle for $11,000 in August of 1980, and plaintiff's counsel
refused, citing Playboy's ability to pay more, and demanding
further discovery. However, he never sought to inspect any of the
documents he claimed to be so critical, and took no depositions.
He failed to appear and produce plaintiff for a noticed
deposition, and Playboy was required to obtain an order
compelling plaintiff to attend. When the due date for final
pre-trial order was imminent, plaintiff's counsel then agreed to
settle the back wages claim for just $1,538.70 more than Playboy
had offered some months earlier, provided that
Playboy also pay him $7,500 in fees and costs. Playboy refused to
pay fees or costs, and the parties then settled for back wages,
leaving the issue of fees and costs for this court's decision.
Third, plaintiff's counsel claims to charge an hourly rate of
$100, without regard to the fact that younger, less experienced
lawyers have appeared from his office, without regard to the fact
that this rate has purportedly been charged by him since 1978,
and without regard to the fact that some of the time allegedly
billed involved plainly clerical, rather than legal, work. In
addition, at least 40 of the hours claimed involved time
allegedly spent before this complaint was filed. For these and
other reasons plainly evident in the record before this court,
the request for fees must be denied in its entirety.
However, this court finds that certain of the enumerated costs
allegedly incurred are valid. Thus, the cost of filing the
complaint and the U.S. Marshal's summons fee are granted. The
court also allows the costs of duplicating various materials, but
at the rate of 10¢ per sheet, rather than 25¢ as requested by
plaintiff. Finally, the cost of obtaining the transcript
of plaintiff's deposition should also be allowed. This court's
calculations reveal that: the filing of the complaint and service
of summons came to $19; 874 copies were duplicated at 10¢ per
sheet; and, the cost of obtaining the deposition transcript was
$342, for a total of $448.40 in awardable costs. For these
reasons, the request for an award of fees is denied in its
entirety, and $448.40 is awarded in costs.
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