                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-2004

Gorini v. AMP Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2053




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2053


                                  JOSEPH B. GORINI

                                            v.

                                 AM P, Incorporated,
                              or its Successor In Interest
                             TYCO ELECTRONICS, INC.

                                 Tyco Electronics, Inc.,
                                             Appellants


                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 99-cv-02215)
                      District Court Judge: Honorable Yvette Kane


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 7, 2004

                   Before: RENDELL and FISHER, Circuit Judges,
                            and YOHN*, District Judge.

                               (Filed: December 8, 2004 )


                              OPINION OF THE COURT




*Honorable William H. Yohn, Jr., Senior District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Tyco Electronics Corporation (“Tyco”) appeals from the final order of the District

Court granting Joseph Gorini $78,934.10 in attorney’s fees and $5,909.88 in costs.1 Tyco

contends the District Court erred in awarding Gorini attorney’s fees for duplicative work

performed by multiple attorneys and for time spent on claims that ultimately were not

successful. Tyco also asserts that the District Court erred in awarding costs for

unauthorized items and items Gorini failed to demonstrate were necessary. We affirm

because we conclude that the District Court did not abuse its discretion in determining as

reasonable an award of attorney’s fees and costs.

                                             I.

       This case arises out of a work force reduction effected by AMP, Inc. (Tyco’s

predecessor) which resulted in Gorini’s termination. Gorini filed this action against Tyco

in the District Court alleging that his termination violated the Employee Retirement

Income Security Act of 1974 (“ERISA”) and the Worker Adjustment and Retraining

Notification Act (“WARN Act”). He alleged that he was owed benefits due under two

severance plans maintained by Tyco and that Tyco had failed to supply him with

information requested regarding those plans in a timely fashion. Gorini also asserted a

breach of contract claim for unpaid vacation time under state law. In answering, Tyco


  1
   The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 & 1367; this Court
has jurisdiction under 28 U.S.C. § 1291.

                                             2
asserted two counterclaims – the first, to recover duplicate severance pay, and the second,

to recover an overpayment under one of the two plans.

       The parties filed cross-motions for summary judgment as to all claims and

counterclaims. The District Court granted Gorini’s motion as it related to five instances

of failure to disclose and report under ERISA by Tyco, and awarded Gorini

approximately $160,000 in penalties. Gorini’s motion was otherwise denied. The

District Court granted Tyco’s motion for summary judgment as to an additional allegation

of failure to disclose under ERISA, and denied Tyco’s motion in all other respects.

       Following a bench trial on the remaining claims, the District Court found in favor

of Gorini on claims concerning the WARN Act and unpaid vacation time, and in favor of

Tyco regarding an outstanding failure to disclose issue and its counterclaim for duplicate

severance pay.

       Altogether, Gorini was awarded $162,743.25 in damages – $1,784.77 of which

was deemed to constitute back pay, $178.48 deemed wages or vacation pay, and the

remainder penalties for the ERISA violations awarded on summary judgment. Tyco was

awarded $19,355 as reimbursement for duplicate severance pay. We affirmed the

judgment of the District Court, see Gorini v. AMP Inc., 94 Fed. Appx. 913 (3d Cir. 2004),

and later denied a petition for rehearing en banc.

                                             II.

       While the damages judgment was on appeal, the District Court considered Gorini’s



                                             3
Petition for an Award of Fees and Costs. Gorini sought $81,267 in fees and $5,951.35 in

costs pursuant to respective fee provisions of ERISA and the WARN Act, both of which

allow a court to exercise its discretion and award “reasonable” attorney’s fees and costs.2

The District Court evaluated each of the five policy factors we set forth in Ursic v.

Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983) and developed further in McPherson v.

Employees’ Pension Plan of Am. Re-Insurance Co., 33 F.3d 253 (3d Cir. 1995) – (1) the

offending parties’ culpability or bad faith; (2) the ability of the offending parties to satisfy

an award of attorney’s fees; (3) the deterrent effect of an award of attorney’s fees against

the offending parties; (4) the benefit conferred on members of the pension plan as a

whole; and (5) the relative merits of the parties’ position.

       After determining that Gorini was entitled to an award of fees based on these

factors, the District Court employed the “lodestar” method, which calls for multiplication

of time reasonably expended on litigation by a reasonable hourly rate, see Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983), to determine the appropriate amount of that award.

The District Court first found reasonable the rates claimed by Gorini’s counsel, the

highest of which was $150. As to the time expended by attorneys Zucker and Brown, the


  2
    The WARN Act fee provision applies only to “prevailing parties,” 29 U.S.C. §
2104(a)(6), and we previously have noted that where “the fee-shifting statute authorizes
an award of attorney’s fees to a ‘prevailing plaintiff,’ that party ‘should ordinarily recover
an attorney’s fee unless special circumstances would render such an award unjust.’”
United Steelworkers of Am. v. North Star Steel Co., 5 F.3d 39, 44 (3d Cir. 1993) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). In contrast, ERISA’s fee provision
allows for a reasonable award to either party. See 29 U.S.C. § 502(g)(1).

                                               4
two lead attorneys on the case, the District Court found the total time of 588.4 hours

proffered by counsel to be reasonable on its face “considering the complexity of this

litigation that was stretched out over several years and complicated by [Tyco’s] dilatory

conduct.” (Mar. 14, 2003 Memo. and Op. at 9). However, the District Court sustained

Tyco’s objection and excluded from the total 5.2 hours spent on a post-trial settlement

demand because such post-trial efforts were not necessary to the outcome of the trial

itself. Further, based on Tyco’s protestation that Gorini had achieved only minimal

success in his lawsuit, the District Court found it reasonable to reduce the entire lodestar

award amount by two percent. Gorini thus received $78,934.10 in attorney’s fees.

       As to costs, Tyco objected to all but $412.74 of claimed expenses; the District

Court, finding reasonable and allowable costs for, inter alia, transcripts, postage, phone

calls and witnesses, was persuaded to reduce the award by only $21.19 for meals and

$20.28 for supplies. Gorini received $5,909.88 in costs. The reasonableness of a district

court’s award of attorney’s fees and costs is reviewed for abuse of discretion. See Lanni

v. New Jersey, 259 F.3d 146, 148 (3d Cir. 2001).

                                             III.

       Tyco first contends the District Court abused its discretion by awarding Gorini fees

for “duplicate effort.” Tyco argues that time spent by more than one attorney in a meeting

or at a conference, or time spent by both attorneys Brown and Zucker perfecting a brief,

should not be reimbursed. In support, Tyco cites Daggett v. Kimmelman, 811 F.2d 793



                                              5
(3d Cir. 1987), but its reliance is misplaced. In affirming a district court’s ten percent

reduction in billable hours for which a petitioner sought reimbursement, we stressed that

district court judges must not act perfunctorily in ordering reductions but rather, “must

analyze the circumstance requiring the reduction and its relation to the fee, and it must

make specific findings to support its action.” Id. at 797 (citation omitted). We concluded

that the district court in Daggett had provided sufficient support by pointing to numerous

instances in which three or four attorneys spent time drafting the same memoranda,

preparing for oral argument and attending court. We will not disturb the District Court’s

determination here that fees should be awarded to Gorini for occasional time spent by

both attorneys Zucker and Brown engaging in the same tasks.

       Tyco next asserts that Gorini’s fee award should be reduced by time expended,

after the close of discovery and filing of dispositive motions, on claims and defenses that

ultimately were unsuccessful. Tyco proposes a 33 percent reduction of time spent on trial

preparation, trial time and post-trial briefing. During this stage of the litigation, Tyco

states, Gorini’s severance pay claims predominated, not his claims under the W ARN Act.

Because it successfully defended the severance claims, Tyco argues Gorini should not

recover for time spent litigating those claims. Tyco also argues that 13.4 hours spent by

attorney Zucker prepping for trial should be excluded because she ultimately was called

as a witness and was unable to try the case.

       Gorini claims that Tyco is arguing for the first time on appeal for a percentage



                                               6
reduction based on pre-trial work and an hourly reduction based on attorney Zucker’s

inability to participate in the trial because of her witness status. Therefore, Gorini argues,

these issues were waived. Tyco maintains that it has consistently objected to the amount

of fees requested, and sought related reductions, based on Gorini’s limited success.

Though Tyco did not specifically propose a 33 percent reduction in the District Court, it

did ask that Gorini’s unsuccessful claims be severed and thus rendered ineligible for

reimbursement. Tyco apparently did not advance a specific reduction request based on

Zucker’s witness status, though ostensibly its objection regarding duplicative time spent

by her and attorney Brown comprises the requested 13.4 hour reduction. The District

Court’s decision reaches both of these contentions, and the relevant analysis therein is

sound.

         The Supreme Court has explained:

         In [many] cases the plaintiff’s claims for relief will involve a common core of
         facts or will be based on related legal theories. Much of counsel’s time will
         be devoted generally to the litigation as a whole, making it difficult to divide
         the hours expended on a claim-by-claim basis. Such a lawsuit cannot be
         viewed as a series of discrete claims. Instead the district court should focus on
         the significance of the overall relief obtained by the plaintiff in relation to the
         hours reasonably expended on the litigation.

Hensley, 461 U.S. at 435. “Where a plaintiff has obtained excellent results, his attorney

should recover a fully compensatory fee. . . . [T]he fee award should not be reduced

simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”

Id. The District Court characterized Gorini’s success as “excellent.” It also noted that



                                                 7
Gorini’s unsuccessful claims were closely related to, and arising out of a common core of

facts as, those on which he did enjoy success. Additionally, it bears noting that the

District Court did impose a reduction, albeit a small one, based upon Gorini’s limited

success litigating his breach of contract claim. Though the District Court did not consider

the breach of contract claim entirely severable, it observed that there exists no fee shifting

provision for such a claim and thus reduced the overall award by a reasonable amount.

The District Court did not abuse its discretion in refusing to sever Gorini’s unsuccessful

ERISA claims, and Tyco’s proposed 33 percent reduction will not be applied.

       Finally, Tyco argues that Gorini is not entitled to the vast majority of costs

awarded him. It claims that, under the District Court’s Local Rules dealing with taxable

items, copying costs are specifically excluded while phone, mail and fax charges are not

explicitly enumerated and are thus unallowable by virtue of their omission. We do not

view a local rule concerning taxable items as controlling over what a district court may

award in costs under a federal statutory authorization. The District Court conducted a

line-by-line analysis of Gorini’s costs and excluded those it found unreasonable. It did

not abuse its discretion in granting the remainder of claimed costs.




                                             IV.

       For the reasons stated above, we will AFFIRM the District Court’s award of

attorney’s fees and costs to Appellee Joseph Gorini.
