IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTI VITULLO : CIVIL ACTION

:

v. :

:

BOROUGH OF YEADON : NO. 04-3929

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE June 21, 2006

On March 10, 2006, after a three day trial, the jury returned a $25,000 verdict for

the Plaintiff in this reverse discrimination case. After molding the verdict to include

prejudgment interest, the Court entered judgment in the amount of $25,894. Plaintiff’s counsel

has now filed a petition and supplemental petition for attorneys’ fees totaling $95,895 and costs

totaling $15,987.45. Although the Defendant does not take issue with the rates charged by lead

counsel, his associates, and paralegals, the Defendant requests a reduction in the attorneys’ fees

and costs, arguing that many of the hours were not reasonably expended on this litigation. 

I. Lodestar

The logical starting point for determining attorneys’ fees is the number of hours

expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). This calculation results in the "lodestar," which is presumptively correct but which may

be adjusted should the court find such adjustment appropriate. Rode v. Dellarciprete, 892 F.2d

1177, 1183 (3d Cir. 1990). In reviewing fee requests, plaintiff’s counsel have the burden of

showing that their fee request is proper and supported by evidence. Id. “Once the adverse party

raises objections to the fee request, the district court has a great deal of discretion to adjust the

fee award in light of those objections.” Id. 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 1 of 13
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As previously mentioned, the Defendant does not object to the rates charged by

Plaintiff’s counsel. However, the Defendant requests that the court reduce the number of hours

expended on certain activities and eliminate the time charged for other activities, altogether. 

Written Discovery

The Defendant first argues that the hours expended by Plaintiff’s counsel for

preparing a Self Executing Disclosure Statement and drafting a Request for Production of

Documents and Interrogatories are excessive. Plaintiff has billed 7.9 hours for the Disclosure

Statement (Fee Petition, at 4-5 – 7.2 hours billed at $125/hr. and .7 hours billed at $250/hr.), and

11.2 hours for the Request/Interrogatories (Fee Petition, at 4-7 – 9.5 hours billed at $125/hr and

1.7 hours billed at $250/hr). We agree with the defense that in an uncomplicated reverse

discrimination case, the hours billed for these activities is excessive. 

In response to this objection, the Plaintiff’s counsel notes that the Supreme

Court’s decision in Desert Palace has complicated the area of employment discrimination. In

essence, Desert Palace held that direct evidence of discrimination is not necessary to seek a

mixed motive charge. Circumstantial evidence of such discrimination is sufficient to warrant

such a charge. In this case, the Plaintiff presented both direct and circumstantial evidence of

discrimination. Thus, the decision in Desert Palace had little affect on the work required for the

preparation of this case, especially with respect to the Disclosure Statement and discovery

requests. 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 2 of 13
We note that one of the hours billed by the associate was noted as “no charge.” 1

(Fee Petition, at 4). 

3

We will permit 4 hours for the Disclosure Statement, .7 hours billed at $250/hr

and 3.3 hours billed at $125/hr. This results in a reduction of $362.50 (from $950 to $587.50).1

We will also reduce the time spent on the Request/Interrogatories from 11.2 hours to 6 hours,

reducing the amount billed by $650 (5.2 hours at $125/hr.). 

Expert

Next, the defense takes issue with the reimbursement of time spent consulting

with an unidentified expert and the fee associated with the consultation. The Plaintiff has billed

4.3 hours relating to consultation with a vocational and economic expert (Fee Petition, at 7-13),

and charged an expert fee of $1250. (Fee Petition, at 114). The defense notes that Plaintiff did

not identify any expert during discovery, and did not call any economic expert at trial. 

The Plaintiff responds that this expert’s vocational and economic evaluation was

utilized when Plaintiff presented her lost wages and benefits to the jury. Having reviewed the

Plaintiff’s testimony regarding wage loss, we agree with the defense that consultation with this

expert was not necessary. All of the information regarding wage loss was readily available to the

Plaintiff. We will reduce the fees and costs by the amounts billed for this expert, $850 in fees (1

hour at $75/hr, .6 hr at $125/hr, and 2.7 hours at $250/hr), and $1,250 in costs.

Fees Associated with Other Litigation

The Plaintiff’s counsel have also billed for 2.4 hours expended reviewing

documents regarding a separate lawsuit that Chief Molineaux brought against Yeadon. Chief

Molineaux had brought a lawsuit alleging discrimination on the basis of age. Although the court

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 3 of 13
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ruled that Chief Molineaux’s lawsuit was not directly relevant to Ms. Vitullo’s claim, the Chief’s

case provided a basis for impeachment of his testimony. Therefore, we will not reduce the fee

petition by these hours.

Right to Know Request

The defense seeks the elimination of the hours charged by Plaintiff’s counsel for

pursuing a Right to Know Request to obtain the minutes of Council’s Meetings. Plaintiff’s

counsel argues that they pursued this route rather than filing a motion to compel with this court

because they believed it would be more cost-efficient. Although Plaintiff’s counsel’s attempt at

frugality is laudable, the result was not economical, resulting in 48.5 hours billed for the Right to

Know Petition.

The Plaintiff attempts to lay the blame for these hours at the feet of the defense

because Yeadon failed to immediately act on the Request, and, arguably, stone-walled the

Plaintiff’s efforts to obtain the documents. We, however, reject the Plaintiff’s argument. The

Rules of Civil Procedure provide mechanisms for obtaining relevant documentation and we will

not reward Plaintiff’s counsel for their circumvention of those Rules. Had this court granted a

motion to compel production, we believe many of the hours expended would have been

unnecessary. Four hours for the drafting of such a motion would have been reasonable. The

hours billed over and above that amount will be disallowed. However, we will not reduce the

petition by the amount of time counsel spent reviewing the minutes of Council’s meetings. 

We will, therefore, reduce counsel’s fees by 20.2 hours (.9 hours billed at $250/hr

and 19.3 hours billed at $125/hr), for a total of $2,637.50. We will also reduce the costs

associated with the Right to Know Petition, $210. (Fee Petition, at 116-17).

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 4 of 13
The 53.8 hours billed for the preparation of trial documents does not include the 2

time spent preparing exhibits for trial. Plaintiff has billed an additional 41.9 hours for exhibit

preparation.

5

Trial Documents

The defense objects to the 53.8 hours expended by Plaintiff’s counsel in preparing

the documents required by my Standing Order, including proposed voir dire, jury instructions,

and a pretrial stipulation. Defense counsel believes eight hours or less would be more 2

appropriate. 

In response, Plaintiff’s counsel presents several arguments to justify the hours

billed, including the added complexity caused by the Desert Palace decision, and defense

counsel’s failure to just edit Plaintiff’s proposals for the joint submissions, requiring additional

time on the part of Plaintiff’s counsel to merge the Defendant’s submissions into the Plaintiff’s.

Although the court is mindful of the time necessary to prepare the submissions

required by my Standing Order, we believe the hours billed by Plaintiff’s counsel are excessive. 

For example, the Plaintiff has billed 7.9 hours for the preparation of voir dire questions. (Fee

Petition, at 88, 91, 95-97). The voir dire proposed by counsel consisted of 26 joint submissions,

with two additional questions posed by Plaintiff to which the Defendant objected. This amounts

to over 18 minutes per question. The proposed voir dire consisted of questions such as: 

Do you have any hesitation about, or disagreement with, laws that

allow a person that proves that he or she was unlawfully

discriminated against to be awarded damages to compensate for his

or her losses that resulted from discrimination?

(Proposed Voir Dire, at 20). Reviewing the proposed voir dire, we find no justification for such

an excessive amount of time and will reduce the hours.

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 5 of 13
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Similarly, with respect to the proposed jury instructions, counsel has billed for

34.7 hours (1.4 hours @ $250/hr; 26.1 hours @ $175/hr; 7.2 hours @ $125/hr). There were 50

joint submissions and several other charges requested by the defense to which the Plaintiff

objected. Again, we find the hours billed excessive. 

We believe that a total of 25 hours for preparation of the pretrial materials is more

realistic. A majority of the pretrial billing was at the rate of $175 per hour. Thus, we will deduct

28.8 hours at that rate, resulting in a reduction of $5,040. 

Trial Attendance

Mr. Sereni’s associate, Ms. Dugalic, attended the trial and has billed the

hours of her attendance at a paralegal’s rate of $75 per hour. Defense counsel argues that Ms.

Dugalic’s attendance was not necessary. Considering Ms. Dugalic’s familiarity with the case, the

pretrial preparation, and the exhibits, we do not believe that her presence was unnecessary. On

numerous occasions during the trial, the court observed Ms. Dugalic retrieving documents and

assisting in the organization of Mr. Sereni’s case file. We will not reduce the fee petition for the

amounts charged for Ms. Dugalic’s trial attendance.

Trial Subpoenas

The Defendant objects to the fees and costs associated with trial subpoenas for

several of the witnesses that the Defendant agreed to produce, without subpoena, including

Mayor Mosley, Councilwoman Brinkley, Chief Molineaux, Joan Watts, and Mr. van de Velde. 

We will not disallow the fees and expenses associated with these subpoenas. 

However, the defense also points out that there were several other subpoenas that

were served that were completely unnecessary because the court limited the evidence to be

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 6 of 13
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presented. We agree. In the Pretrial Stipulation, the Plaintiff named 88 witnesses, not including

records’ custodians. Thankfully, the Plaintiff did not issue 88 subpoenas. However, many of the

subpoenaed witnesses were not called to testify. We will make appropriate deductions, reducing

the fee petition by 8.6 hours billed for unnecessary subpoenas (3 hours @$75/hr; 5.2 hours @

125/hr; .4 hours @$250/hr) and $320 in costs associated with those subpoenas. 

Motion in Limine

Defense counsel asks the court to exclude 14.5 hours expended by Plaintiff’s

counsel in responding to the Motion in Limine filed by the defense because the Defendant

prevailed on the motion. We do not believe such deduction is appropriate. Although the defense

did prevail on the bulk of the motion, in response to the motion, Plaintiff’s counsel explained that

some of the documentation the defense sought to preclude was not meant to be substantive

evidence. Rather, much of the documentation was prepared only for purposes of refreshing

witnesses’ recollection or impeachment. We will permit this time. 

Focus Group

The Defendant next argues that the time and expenses associated with a focus

group are not recoverable. We have found no rule stating that such expenses are not recoverable

as a matter of law. In fact, we have found several cases specifically permitting such fees and

expenses. See Confederated Tribes of Siletz Indians of Oregon v. Weyerhauser Co., No. 00-

1693, 2003 WL 23715982 *8 n.12 (D.Or. Oct. 27, 2003)(citing cases permitting such fees). 

However, the use of such mock trial juries or focus groups appears acceptable in more

complicated cases. See Majestic Box Co. v. Reliance Ins. Co. of Illinois, No. 96-8118, 1998 WL

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 7 of 13
We found one entry in which .2 hours were billed for a conference that involved 3

numerous issues, including the focus group. (Fee Petition, at 107). However, considering the

number of topics listed, we will not make any reduction for this entry.

8

720463 *5 (E.D. Pa. Sept. 2, 1998)(Angell, M.J.)(finding complicated nature of defense justified

use of mock trial). 

Hensley provides for the payment of fees reasonably expended in the suit. With

this in mind, we believe that we must look to the nature and complexity of the case to determine

if employment of such a focus group is reasonable. See United Steelworkers of America, Local

4776 v. Phelps Dodge Corp., No. 90-16298, 1991 WL 178115 (9 Cir. Sept. 11, 1991)(District th

Court has discretion to determine if the use of a focus group is reasonable considering the nature

of the litigation). Here, the Plaintiff presented a straight-forward reverse discrimination claim. 

The evidence consisted of both direct and circumstantial evidence of discrimination. However,

nothing about the case was novel or complicated. Under the circumstances, we do not believe

the use of a focus group was reasonable or warranted. We will reduce the fees and costs

accordingly. It appears that no attorney time was billed for the focus group. However, 2.3 hours 3

was billed by a paralegal and the Plaintiff incurred costs of $548 in relation to this focus group,

which will be excluded.

Exhibits

The defense next takes issue with the hours billed for the preparation of exhibits

and the exhibit list. Defense counsel found that 41.9 hours had been expended on the exhibits. 

After a painstakingly meticulous review of the fee petition, we found that the total hours spent on

exhibits was 57.5 (2.6 hours @ $250/hr; 20.4 hours @ $125/hr; 34.5 @75/hr) for a total of

$5,787.50. 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 8 of 13
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The Plaintiff listed 258 exhibits in the list provided to the court just before trial. 

The Plaintiff obviously abides by the adage, “better to have and not need than to need and not

have,” because of the 258 exhibits listed, Plaintiff’s counsel referred to only 45 exhibits during

the trial. Were we to allow the total hours billed for the preparation of the exhibits, it would

amount to just over $128 per exhibit. This borders on the absurd. 

Rather, we will allow $1,000 for the exhibit preparation, reducing the fee petition

by $4,787.50. 

Copying Costs

The Defendant objects to the $3079.60 expended on in house copying and advises

the court that the defense spent a total of $434.85 on copying costs. The defense also argues that

the $.20 per page charged by the Plaintiff is unreasonable. The defense asks that we reduce the

amount billed for copying costs by 50%. First, we note that the judges of this bench have found

that $.25 per page for copying is reasonable. See James v. Norton, 176 F.Supp.2d 385, 399 (E.D.

Pa. 2001)(Schiller, J.)(citing Churchill v. Star Enters., No. 97-3527, 1998 U.S. Dist. LEXIS

6068, *29-30, 1998 WL 254080, *10 (E.D.Pa. Apr.17, 1998)).

However, as we have previously commented in reviewing the Fee Petition, the

Plaintiff’s counsel presented the court with an excessive number of exhibits that were never

presented at trial. Similarly, the Plaintiff presented the court with a 17 page witness list

containing 88 named individuals. A total of 9 witnesses were called at trial. In short over $3000

in copying costs is unreasonable. We will allow $1,500 for copying costs. 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 9 of 13
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Miscellaneous Costs

The Plaintiff has also included the costs for courier and overnight delivery costs,

court reporting costs, private investigator fees, and the cost of supplies. It is clear that the costs

relating to courier and overnight delivery costs and supplies are not recoverable. See James v.

Norton, 176 F.Supp.2d 385, 399 (E.D.Pa. 2001)(postage and courier fees not permissible);

Sheffer v. Experian Information Solutions, Inc., 290 F.Supp.2d 538, 552 (E.D. Pa.

2003)(supplies are part of overhead included in hourly rate); Becker v. ARCO Chem. Co., 15

F.Supp.2d 621, 635 (E.D. Pa. 1998)(same)). 

However, the costs associated with deposition court reporting is recoverable as

long as the deposition was “reasonably necessary for the case.” Montgomery County v.

Microvote Corp., No. 97-6331, 2004 WL 1087196 *6 (E.D. Pa. May 13, 2004)(Kelly,

J.)(quoting Smith v. Crown Equip. Corp., No. 97-541, 2000 WL 62314 *3 (E.D. Pa. Jan. 13,

2000)(Scuderi, M.J.)). The Defendant does not make any argument that these depositions were

not reasonably necessary. We will permit the court reporting costs. 

With respect to the investigative services, the defense argues both that costs for a

private investigator are not contemplated in the governing statute and, in any event, were

excessive considering the case at bar. Private investigators have been equated with experts. See

Denny v. Westfield State College, 880 F.2d 1465, 1474 (1 Cir. 1989)(J. Breyer, st

concurring)(“Experts’ activities may involve far more than simply appearing in court; they could

include helping prepare the case, and could be work that, like that of, say, a private investigator,

might fall within the scope of a reasonable attorney’s fee.”). Expert fees are properly recoverable

by a prevailing plaintiff in employment discrimination cases. See 42 U.S.C. § 2000eCase 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 10 of 13
Although the Plaintiff filed a Motion for Prejudgment Interest after the trial had 4

concluded, the hours attributable to that filing were included in the original Fee Petition. 

11

5(k)(permitting recovery for fees spent on experts). Therefore, we conclude that investigative

services are properly an element of costs recoverable by a prevailing plaintiff in an employment

discrimination suit. However, we agree with the defense that investigative fees totaling nearly

$4,500 are excessive in this case. It appears from the fee petition that much of the investigator’s

time was spent attempting to track down the applicants for the job Ms. Vitullo was denied. We

find much of the time excessive and will reduce the fee, allowing $2,000 for investigative

services. 

Reduction for Limited Success

The defense also asks the court to reduce the fees based on Plaintiff’s limited

success at trial. The Defendant’s argument is based on two things: (1) the Plaintiff’s pretrial

settlement demand was $150,000; and (2) she received only a quarter of the amount she sought in

wage loss. We reject the Defendant’s reasoning. Plaintiff presented a reverse discrimination

claim and won. Although she may not have recovered all that she had hoped, we do not look at

the jury’s verdict as one requiring a reduction for limited success.

Supplemental Petition for Fees

The Plaintiff’s counsel have submitted a Supplemental Fee Petition for 48.1 hours

(26.6 hours @ $175/hr; 3.5 hours @ $250/hr; .4 hours @ $75/hr; 17.6 hours @ $125/hr) to

prepare the response to Defendant’s Motion for Judgment as a Matter of Law or Remittitur.4

Notwithstanding Plaintiff’s counsel’s reply to the Defendant’s objection, a bill for 48.1 hours,

totaling $7,760 for a 21⁄2 page response and a 14 page memorandum of law is unreasonable. 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 11 of 13
12

The defense suggests that 12 hours at the blended rate of $150 per hour would be

reasonable. We agree. Therefore, we will reduce the $7,760 fees contained in the Supplemental

Fee Petition to $1,800. 

The Defendant does not object to the $100.90 in costs listed in the Supplemental

Fee Petition. 

Conclusion

The Plaintiff’s counsel has presented a Fee Petition and Supplemental Fee Petition

seeking a total of $95,895 in fees, and $15,987.45 in costs. For the reasons set forth in this

Memorandum, the court will reduce the fees by $21,435, and will reduce the costs by $6,771.70. 

This results in an additional award of $74,460 in fees and $9,215.75 in costs. 

An appropriate Order follows.

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 12 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTI VITULLO : CIVIL ACTION

:

v. :

:

BOROUGH OF YEADON : NO. 04-3929

O R D E R

AND NOW, this 21 day of June , 2006, upon

consideration of the Plaintiff’s Petition for Attorneys’ Fees and Costs, the Supplemental Petition,

the responses by the defense, and the Plaintiff’s replies, IT IS HEREBY ORDERED that the

Petition for Attorneys’ and the Supplemental Petition are GRANTED WITH MODIFICATION.

1. Plaintiff is awarded $ 74,460 in attorneys’ fees.

2. Plaintiff is awarded $ 9,215.75 in costs. 

BY THE COURT:

 /s/ Jacob P. Hart 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

 

Case 2:04-cv-03929-JPH Document 57 Filed 06/22/06 Page 13 of 13