Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01211-MPT

Document 30

Filed 02/25/2008

Page 1 of 5

Y OUNG C ONAWAY S TARGATT & T AYLOR ,
BEN T. CASTLE SHELDON N. SANDLER RICHARD A. LEVINE RICHARD A. ZAPPA FREDERICK W. IOBST RICHARD H. MORSE DAVID C. MC BRIDE JOSEPH M. NICHOLSON CRAIG A. KARSNITZ BARRY M. WILLOUGHBY JOSY W. INGERSOLL ANTHONY G. FLYNN JEROME K. GROSSMAN EUGENE A. DIPRINZIO JAMES L. PATTON, JR. ROBERT L. THOMAS WILLIAM D. JOHNSTON TIMOTHY J. SNYDER BRUCE L. SILVERSTEIN WILLIAM W. BOWSER LARRY J. TARABICOS RICHARD A. DILIBERTO, JR. MELANIE K. SHARP CASSANDRA F. ROBERTS RICHARD J.A. POPPER TERESA A. CHEEK NEILLI MULLEN WALSH JANET Z. CHARLTON ROBERT S. BRADY JOEL A. WAITE BRENT C. SHAFFER DANIEL P. JOHNSON CRAIG D. GREAR TIMOTHY JAY HOUSEAL MARTIN S. LESSNER PAULINE K. MORGAN C. BARR FLINN NATALIE WOLF LISA B. GOODMAN JOHN W. SHAW JAMES P. HUGHES, JR. EDWIN J. HARRON MICHAEL R. NESTOR MAUREEN D. LUKE ROLIN P. BISSELL SCOTT A. HOLT JOHN T. DORSEY M. BLAKE CLEARY CHRISTIAN DOUGLAS WRIGHT DANIELLE GIBBS JOHN J. PASCHETTO NORMAN M. POWELL ELENA C. NORMAN EDMON L. MORTON JOHN E. TRACEY

LLP
JENNIFER M. KINKUS EDWARD J. KOSMOWSKI EVANGELOS KOSTOULAS JOHN C. KUFFEL TIMOTHY E. LENGKEEK ANDREW A. LUNDGREN MATTHEW B. LUNN ADRIA B. MARTINELLI KATHALEEN MCCORMICK MICHAEL W. MCDERMOTT TAMMY L. MERCER MARIBETH L. MINELLA D. FON MUTTAMARA-WALKER JENNIFER R. NOEL ADAM W. POFF ROBERT F. POPPITI, JR. SARA BETH A. REYBURN CHERYL A. SANTANIELLO MONTÉ T. SQUIRE MICHAEL P. STAFFORD CHAD S.C. STOVER RICHARD J. THOMAS TRAVIS N. TURNER MARGARET B. WHITEMAN SHARON M. ZIEG SENIOR COUNSEL CURTIS J. CROWTHER OF COUNSEL BRUCE M. STARGATT STUART B. YOUNG EDWARD B. MAXWELL, 2ND

THE BRANDYWINE BUILDING 1000 WEST STREET, 17TH FLOOR WILMINGTON, DELAWARE 19801
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JOSEPH M. BARRY RYAN M. BARTLEY SEAN M. BEACH SANJAY BHATNAGAR DONALD J. BOWMAN, JR. MICHELE SHERRETTA BUDICAK JEFFREY T. CASTELLANO DOUGLAS T. COATS (MD ONLY) KARA HAMMOND COYLE KRISTEN SALVATORE DEPALMA MARGARET M. DIBIANCA MARY F. DUGAN ERIN EDWARDS KENNETH J. ENOS KERRIANNE MARIE FAY IAN S. FREDERICKS JAMES J. GALLAGHER WILLIAM E. GAMGORT SEAN T. GREECHER NATHAN D. GROW STEPHANIE L. HANSEN JAMES L. HIGGINS PATRICK A. JACKSON DAWN M. JONES KAREN E. KELLER SPECIAL COUNSEL JOHN D. MCLAUGHLIN, JR. KAREN L. PASCALE SETH J. REIDENBERG PATRICIA A. WIDDOSS

DIRECT DIAL: 571-5008 DIRECT FAX: 576-3476 [email protected]

February 25, 2008

BY E-FILE The Honorable Mary Pat Thynge United States District Court 844 North King Street Lock Box 8 Wilmington, DE 19801 Re: Dear Judge Thynge: This letter is respectfully submitted on behalf of all defendants in the abovereferenced matter. During the hearing held via teleconference before Your Honor on February 11, 2008, Plaintiff's counsel stated that Plaintiff intended to seek attorney's fees in the amount of approximately $72,000 - $75,000. He further stated that he would forward an itemized statement of the hours worked to defense counsel within the following week. Based on this representation, Your Honor directed the parties to confer and attempt to reach agreement on the matter of fees without the Court's involvement. Another teleconference was set for March 31, 2008, at which time the parties would report to the Court whether, in fact, agreement had been reached, or whether the Court's involvement would be required. Despite Plaintiff's counsel's representation, Defendants have not received an itemized statement of hours claimed. Instead, Plaintiff's counsel has refused to provide any data to demonstrate the reasonableness of the requested hourly rates and number of hours claimed. Plaintiff has notified defense counsel that Plaintiff will not produce even the number of hours claimed until Defendants consent to the claimed hourly rates of five attorneys who apparently Tobin v. Gordon et al., No. 04-1211

DB01:2522117.1

045581.1046

Case 1:04-cv-01211-MPT
The Honorable Mary Pat Thynge February 25, 2008 Page 2

Document 30

Filed 02/25/2008
LLP

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Y OUNG C ONAWAY S TARGATT & T AYLOR ,

intend to submit requests for compensation. 1 And in response to Defendants' request for biographical information about two of the attorneys, plaintiff provided the number of years the attorney has been in practice and the school from which she graduated. This position does not comply with the Court's prior order or with the well-established procedure for the resolution of attorney's fees. The plaintiff is required to submit evidence supporting the hours and rates requested. The burden of proof is on those claiming reimbursement.3 An attorney requesting a fee award must establish that rate with reference to "the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity."4 The Third Circuit has explained that the degree of specificity of records required to support a request for attorney's fees is "some fairly definite information as to the hours devoted to various general activities."5
2

Plaintiff's refusal to submit any information whatsoever about the claimed number of hours and the deficient information provided to support the reasonableness of the claimed hourly rates precludes any meaningful review by Defendants. Contrary to the position taken by Plaintiff, Defendants have no obligation to consent to any portion of the fee request until a full and complete submission is made. There can be no meaningful discussion until Plaintiff produces this information. As always, counsel is available to the Court to provide any additional information or to provide assistance in any way. Respectfully submitted,

Margaret M. DiBianca (No. 4539)
Cc: All Registered Counsel (via E-file Notice)

1

See E-Mail John LaRosa, Esq. to Margaret M. DiBianca, Esq., dated February 18, 2008, attached as Exhibit 1.
2

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
3 4 5

Rode, 892 F.2d at 1183. Student Public Interest Research Group v. AT&T Bell Labs., 842 F.2d 1436, 1450 (1988).

Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir. 1983) (citing Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir. 1973)).

DB01:2522117.1

045581.1046

Case 1:04-cv-01211-MPT

Document 30

Filed 02/25/2008

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EXHIBIT 1

Case 1:04-cv-01211-MPT

Document 30

EXHIBIT 1

Filed 02/25/2008

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DiBianca, Margaret
From: Sent: To: Cc: John M. LaRosa, Esquire [[email protected]] Monday, February 18, 2008 5:43 PM DiBianca, Margaret Raeann Warner; Hertzog, Cheryl Esq.; Kathleen Jennings; Butler; Wilson, Gregg; [email protected]; Neuberger, Esq., Stephen

Subject: Tobin v. Gordon: Biographical Information for Plaintiff's Attorneys' Hourly Rates Molly: Attorney Warner is a Widener University School of Law School graduate, admitted in Delaware and the District of Delaware. She has been licensed to practice law since 2006. Attorney Hertzog is a Villanova University School of Law graduate, admitted in Pennsylvania and New Jersey. She has been licensed to practice law since 2005. We will submit the itemized report with our hours only after defendants take a position on our hourly rates. Once the hourly rate issue is resolved, we will submit our statement with our hours for the lodestar. So to clarify my prior message below from Friday, February 15, 2008 @ 9:43 PM, please advise us by the end of the day on Friday, Feb. 22, 20008, whether defendants will contest plaintiff's counsel's hourly rates. Very truly yours, John M. LaRosa ******************************************** Law Office of John M. LaRosa Two East 7th Street, Suite 302 Wilmington, Delaware 19801-3707 (302) 888-1290 (302) 655-9329 (fax) www.LaRosaLaw.com (website) ----- Original Message ----From: DiBianca, Margaret To: John M. LaRosa, Esquire Cc: Wilson, Gregg ; Butler ; Kathleen Jennings Sent: Saturday, February 16, 2008 12:31 PM Subject: RE: Tobin v. Gordon: Plaintiff's Recovery and Attorneys' Fees John: Thank you for being so prompt with the fee resolution. I have not received the itemized statement yet, though. During Monday's teleconference, Mr. Neuberger stated that he would send that within the next few days. Once we receive that, I will have a better answer for you. And, because I do not know Ms. Hertzog or Ms. Warner, would you kindly include their cv's or bio's with the itemized report? That will be of great help. Thank you, Molly DiBianca

Case 1:04-cv-01211-MPT
Margaret M. DiBianca, Esq. Young Conaway Stargatt & Taylor, LLP The Brandywine Building 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 Phone: 302-571-5008 Facsimile: 302-576-3476 [email protected]

Document 30

EXHIBIT 1

Filed 02/25/2008

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To ensure compliance with requirements imposed by the Internal Revenue Service in Circular 230 on tax practitioners, we inform you that, unless we expressly state otherwise in this communication (including any attachments), any federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or other matter addressed herein. This message may contain confidential attorney-client communications or other protected information. If you believe you are not an intended recipient (even if this message was sent to your e-mail address), you may not use, copy, or retransmit it. If you believe you received this message by mistake, please notify us by return e-mail, and then delete this message. Thank you for your cooperation.

From: John M. LaRosa, Esquire [mailto:[email protected]] Sent: Friday, February 15, 2008 9:43 PM To: DiBianca, Margaret Cc: Neuberger, Esq. Thomas S. Subject: Tobin v. Gordon: Plaintiff's Recovery and Attorneys' Fees Molly: Please have the County cut and send us the check for Plaintiff Henry V. Tobin III in the amount of $25,000. Also, regarding attorneys' fees, my hourly rate is $250. The hourly rates for The Neuberger Firm's attorneys are as follows: Thomas S. Neuberger, Esq.: $450; Stephen J. Neuberger, Esq.: $250; Cheryl A. Hertzog, Esq.: $170; and Raeann Warner, Esq.: $170. Please advise us by the end of the day on Friday, Feb. 22nd whether Defendants will contest our fees. Very truly yours, John M. LaRosa ******************************************** Law Office of John M. LaRosa Two East 7th Street, Suite 302 Wilmington, Delaware 19801-3707 (302) 888-1290 (302) 655-9329 (fax) www.LaRosaLaw.com (website)