WALTER M. LUERS, ESQ.

- 034041999
LAW OFFICES OF WALTER M, LUERS, LLC
Suite C202
23 West Main Street
Clinton, New Jersey 08809
Telephone: 908.894.5656
Attorneys for Plaintiff

JUL 2 5 201
/4,141

JOHN PAFF,
Plaintiff;
GALLOWAY TOWNSHIP and THALIA
C. KAY in her official capacity as
Municipal Clerk and Records Custodian of
Galloway. Township,
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ATLANTIC COUNTY
DOCKET NO. ATL- L- 005428- 13
CIVIL ACTION
ORDER
Defendants.
THIS MATTER having been opened to the Court pursuant to R. 4:42-9(8) by Walter M.
Luers, Esq., of the Law Offices of Walter M. Luers, LLC by motion on notice to Defendants for
an award of reasonable attorneys fees and costs pursuant to N.J.S.A. 47:1A-6 against Defendants
Galloway Township, et al., and the Court having considered the papers submitted by the parties,
and hav heard oral argue on , 2014; and for the
c D , A ,4,tc
(9
reasons se forth 04:1-the-feeCTITITAt -' - I " , 2014; and for good
cause shown,
IT IS on this'? Slay of fo t (p , 2014
A. ORDERED that Defendant Township of Galloway shallay to Law
Offices of Walter M Luers $ l se; 3 0 0 0 in reasonable attorneys' fees and costs of
$ 7 2343 ; and it is further
B. ORDE at payment shall be mad m 20 days after service of
this Order upon Defendant d it is further
ACS
c yge/vio r : c c f - e_ -/-rdt-e. a t - sto o s / 1 : 7 2 i y ei At) ,
C. ORDERED that co se or Plaintiff shall hold the fee award in trust in
counsel's attorney trust account until De s have exhausted their appeals or the time for
Defendants to file any appeal has , whichever should occur later; and it is further
D. ORDERED that Plaintiff shall serve a copy of this Order upon
Defendants within seven days after its filing.
1 4 A-1,e_J
ON. NELSON C. JOHNSON, J. S.C.
This order was:
OPPOSED
UNOPPOSED
LA*
j '25 z o n
&MALINSKY, P.A.
and Thalia C. Kay
: SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
ATLANTIC COUNTY
FITZGERALD, McGROARTY
401 New Road, Suite 104
Linwood, New Jersey 08221
(609) 927-0015
Attorneys for Galloway Township
JOHN PAFF,
Plaintiff
v.
Civil Action
GALLOWAY TOWNSHIP AND .
THALIA C. KAY in her official : DOCKET NO: ATL-L-5428-13
capacity as Municipal Clerk and :
Records Custodian of Galloway :
Township,
ORDER FOR STAY OF AWARD OF
ATTORNEY'S FEE
Defendants.


THIS MATTER having been opened to the Court pursuant to Rule 2:9-5 by Michael J.
Fitzgerald, Esquire, of Fitzgerald, McGroarty & Malinsky as attorneys for the defendants
Galloway Township and Thalia C. Kay in her official capacity as Municipal Clerk and Records
Custodian of Galloway Township by Notice of Cross Motion on notice to plaintiff John Paff and
Walter M. Luers, Esquire, representing the plaintiff John Paff; and for good cause shown;
parphtlit
IT IS ON THIS 1,25-1t-- DAY OF ( , 2014, ORDERED that the awazd of
an attorney's fee to. Walter M, Luers, Esquire, of the law offices of Walter M. Luers, LLC, is
hereby stayed pending the determination and disposition of defendants' appeal to the Appellate
Division.
} / t / f r u C
NELSON C. JOHNSON, J.S.C.
2
. 41
/L4 S
JUL25 20'"i
- '- '1 *C "WA AL
SUPERIOR COURT OF NEW JERSEY

NELSON C. JOHNSON, J. S. C.

1 201 Bacharach Boulevard

Atlantic City, NI 084 01 - 4 527
(609) 594 - 3384
MEMORANDUM OF DECISION ON MOTION
Pursuant to Rule 1 :6- 2(f).
TO: Walter M. Leurs, Esq.
Law Offices of Walter M. Luers, LLC
23 West Main St. , Suite C 202
Clinton, NJ 08809
908- 894 - 5656
Attorney for Plaintiff, John Paff
Michael J. Fitzgerald, Esq.
Fitzgerald, McGroarty & Malinsky
4 01 New Rd. , Suite 1 04
Linwood, NJ 08221
Attorney for Defendants, Galloway
Township and Thalia C. Kay
RE: Paff v. Galloway, et al.

DOCKET NO. ATL- L- 54 28- 1 3

NATURE OF MOTION(S): Plaintiffs Motion for Award of Reasonable Attorney's Fees
and Costs; Defendants' Cross- motion to Stay Award of Attorney's Fees
HAVING CAREFULLY REVIEWED THE MOVING PAPERS. AND ANY RESPONSE FILED, I HAVE
RULED ON THE ABOVE CAPTIONED MOTION(S) ASFOLLOWS:
Nature of Motion and Procedural History
Plaintiff; John Paff, brings this application for a lodestar award of reasonably attorney's
fees in the amount of $1 3,74 0. 00, a contingency enhancement of $6,4 65. 00, and costs totaling
$1 ,003. 52, for a total award of $21 ,208. 52. Plaintiff initiated this action by filing a verified
complaint and order to show cause on August 1 9, 201 3. On October 1 8, 201 3, Defendants
Galloway Township and Thalia C. Kay filed their Answer.
On June 1 0, 201 4 , the Court held . a plenary hearing for the order to show cause.
Thereafter, the Court issued a decision in Plaintiff's favor. Defendants, Galloway Township and
Thalia C. Kay, oppose this motion and file a cross- motion to stay the award of attorney's fees
and costs pending appeal.
S "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6
Parties' Contentions
Plaintiff: In support of his motion, Plaintiff's counsel, Walter M. Luers, Esq., certifies
that his time records indicate that he spent 45.8 hours working on this case and attaches an
itemized list of his hours and expenses. Mr. Luers highlights several major events that required
significant attention and time. These include two Court appearances after an initial appearance,
attendance at a deposition, and preparation for and appearance at the plenary hearing.
Mr. Luers also certifies that the issues involved in the instant matter are both novel and
unique. Here, Plaintiff submitted a request under the Open Public Records Act (OPRA) to
Defendants, arguing that "metadata" constituted a public record. However, there is currently no
published or unpublished New Jersey authority on this issue. Additionally, discovery was
necessary and important in this matter to allow Plaintiff to explore the nature of Defendants'
email retention policies and procedures, as well as the nature of the Defendants' email retention
system. Thus, Mr. Luers further certifies that the instant case is among the more complicated
OPRA matters he has ever handled.
However, Mr. Luers states that he works regularly with OPRA and has litigated dozens of
OPRA cases. Mr. Luers also states that he spoke on several OPRA CLE panels in 2013 and
2014 at New Jersey State Bar Association conventions. Mr. Luers claims that an attorney with
less OPRA litigation experience likely would have spent more time researching and analyzing
this case than he did. Thus, Mr. Luers requests that the Court award 100 percent of the hours
expended by Mr. Luers on the instant matter.
Additionally, Mr. Luers states that he charges $300 per hour for work in OPRA matters.
He farther certifies that this rate is reasonable and is slightly less than what other attorneys who
work in the same field charge for OPRA cases. Mr. Luers cites several New Jersey cases where
prevailing Plaintiffs in OPRA cases have been awarded a $325 hourly rate, $350 hourly rate,
$400 hourly rate, and $520 hourly rate. Mr. Luers also cites the New Jersey Law Journal, dated
September 26, 2005, in which the Journal reported the average hourly rate for partners in major
New Jersey law firms as $394 per hour. Also, Mr. Luers obtained favorable results for his client,
namely, a Court Order requiring disclosure by Defendants of all documents sought by Plaintiff.
Mr. Luers attaches his resume in further support of the instant motion. Furthermore, Mr. Luers
1) "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6.
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certifies that Plaintiff has not paid him any attorney's fees and neither Mr. Luers nor Plaintiff has
made any arrangement for payment of attorney's fees. Thus, Mr. Luers requests that the Court
award 100 percent of the $300 per hour fee.
As for the contingency enhancement, .Mr. Luers certifies that he agreed to represent
Plaintiff in this matter on a completely contingent basis. In addition, the relief sought in this
matter was solely equitable in nature, thus, there was no prospect that Mr. Luers might receive a
percentage of any damages award. Mr. Luers states that he was not able to mitigate the risk of
non-payment in any way, due to OPRA's fee shifting provision. Although agreeing to take
Plaintiff's case did not prevent Mr. Luers from working on any fee-paying clients' cases, Mr.
Luers claims that the strength of the claim, proof problems, and likelihood of success of the
instant case weigh heavily in favor of a contingency enhancement due to the unique and
challenging issues of Plaintiff's OPRA request.
Defendants: In support of their cross-motion, Defendants argue that Mr. Luers
application must be stayed pending the determination and disposition of Defendants' appeal to
the Appellate Division. Defendants point to the Court's June 23, 2014 Order, which stays all
proceedings to enforce the June 10, 2014 Order pending a determination by the Appellate
Division. Defendants also claim that there is a good possibility of appellate success for
Defendants and little to no risk to Plaintiff is the instant application is stayed pending appeal. In
addition, defense counsel certifies that Defendants will be ready, willing and able to timely
satisfy an award of attorney's fees if the Appellate Division rules in Plaintiffs favor.
In the event that the Court denies Defendants' cross-motion and decides to hear the
instant motion, Defendants concede that Plaintiff is a prevailing party under OPRA. Defendants
also do not oppose Mr. Luers' hourly rate or hours expended. However, Defendants request that
the Court reduce the overall fee awarded in light of the fact that the award will ultimately be
borne by the public.
Also, defendants oppose a contingency enhancement. Defendants argue that a
contingency enhancement, although at times appropriate in OPRA litigation, is not appropriate in
this case. Defendants maintain that any actual risk to Mr. Luers in taking a particular OPRA
case is mitigated by the nature and volume of the numerous OPRA cases that he admittedly
pursues on behalf of Plaintiff.: In addition, Defendants state that although this case became
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relatively complex, neither Plaintiff nor Mr. Luers perceived that complexity or the attendant risk
at the time of filing of the verified complaint. Mr. Luers, himself, argued at the plenary hearing
that the instant case simply involved applying OPRA to the developing legal concept of
discoverability of metadata. Thus, Defendants argue that this matter did not involve any unusual
circumstances to justify an upward adjustment of the. lodestar.
In the event that the Court decides to award Plaintiff a contingency enhancement of the
lodestar, Defendants maintain that the requested amount of $6,465.00 is excessive, as it
represents an additional 50 percent of Mr. Luers' time. Defendants propose a more appropriate
20 percent enhancement,
Additionally, Defendants object to several costs on Mr. Luers' itemized list. Specifically,
Defendants object to various charges for postage and delivery totaling $55.44; printing and
copying costs totaling $54.21; charges for supplies totaling $71.82, as these charges constitute
office overhead. In addition Defendants object to Mr. Luers' estimated costs of copying and
serving fee motion in the amount of $100, because it is a non-specific, combined entry.
Likewise, Defendants object to the charge of lodging on January 10, 2014, totaling $98.92 for
two rooms. Defendants maintain that there is no justification to charge Galloway Township for
two hotels rooms for Mr. Luers and Plaintiff.
Furthermore, Defendants also first seek clarification of the Court's June 10, 2014 Order.
Defendants maintain that during the June 10, 2014 plenary hearing, the Court assured
Defendants that an in camera review of the requested documents would be provided prior to the
actual release of the documents to Plaintiff. Thus, Defendants request that the Court clarify
Defendants' right to redact potentially confidential or privileged information contained in the
requested email logs is precluded by the: Court's June 10, 2014 decision, or whether the issue is
deferred until the Appellate Division rules.
Plaintiff: In reply, Mr. Luers first addresses the issue of whether a contingency fee
enhancement is appropriate. Mr. Luers maintains that he is entitled to an enhancement. Mr.
Luers claims that the lack of New Jersey precedent on whether metadata constitutes a public
record made this case particularly complex and risky.
With regard to the costs in dispute, Mr. Luers states that postage, printing and copying
would constitute firm overhead if Mr. Luers billed the majority of its hours to fee-paying clients;
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(t "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6
however, he does not. Instead, 85 percent of Mr. Luers' earnings come from contingency cases.
Thus, Mr. Luers maintains that charges for postage and copying are appropriate. With regard to
the charges for supplies, Mr. Luers argues that these costs should be borne by the Defendants
because said supplies consisted of trial notebooks and number tabs used by Mr. Luers' office and
submitted to the Court and defense counsel, Mr. Luers argues that the charge for lodging are
also appropriate because it saved Mr. Luers travel time to and from Atlantic City.
In addition, Plaintiff opposes Defendants' request to stay the instant motion pending
appeal, as no irreparable harm will result from awarding attorney's fees at this time Plaintiff
also argues that the uncertainty of the Appellate Division's decision weighs in favor of
withholding a stay, not imposing one. Plaintiff further argues that Defendants will not suffer any
hardship if ordered to pay attorney's fees and costs. However, Plaintiff consents to an Order
requiring Mr. Luers to hold any awarded fees and costs in an attorney trust account until appeals
are exhausted.
Furthermore, Plaintiff opposes Defendants' request for clarification of the Court's June
10, 2014 Order, as it is unnecessary. Plaintiff argues that issue of redaction was already tried by
the Court; on June 20, 2014 the Court held that Plaintiff is entitled to receipt of the log of emails
he requested. Plaintiff now seeks a supplemental fee award in the amount of $1,560.00 for the
5.2 hours spent on the instant motion.
Discussion
a. Plaintiff's Motion for Reasonable Attorney's Fees and Costs
Under OPRA, N.J.S.A. 47:1A-6, "[a] requestor who prevails in any proceeding shall be
entitled to a reasonable attorney's fee." In addition, R. 4:42-9(b) provides, "all
applications for the allowance of fees shall be supported by an affidavit of services
addressing the factors enumerated by RPC 1.5(a)." In addition, "[t]he affidavit shall also
include a recitation of other factors pertinent in the evaluation of the services rendered,
the amount of the allowance applied for, and an itemization of disbursements for which
reimbursement is sought." R. 4:42-9(b). "No portion of any fee allowance claimed for
attorneys' services shall duplicate in any way the fees claimed by the attorney for
paraprofessional services rendered to the client." Ibid.: Furthermore, "[a]ll applications
for the allowance of fees shall state how much had been paid to the attorney (including,
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in a matrimonial action, the amount, if any, received by the attorney from pendente lite
allowances) and what provision, if any, has been made for the payment of fees to the
attorney in the future." R. 4:42-9(c).
Moreover, R.P.C. 1.5(a) requires that all attorney's fees be reasonable. The factors to be
considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the clientor by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services;
(8) whether the fee is fixed or contingent.
In addition, our Supreme Court has held that "sometimes, the 'legal' risks facing a case
may be so apparent and significant that they will constitute an economic disincentive
independent of that created by the basic contingency in payment." Rendine v. Pantzer, 141 N.J.
292, 340-341 (1995). "When the result achieved in such a case is significant and of broad public
interest, an additional enhancement is justified in order to attract attorneys to take such cases,
which otherwise might suffer from lack of representation." Ibid. "Extra enhancement for such
cases, however, should be awarded in exceptional cases only." Ibid.
In this instance, the Court finds that Plaintiffs counsel, Walter M. Luers, Esq., has fully
complied with the requirements of R. 4:42-9, above. In addition, the Court finds that the hours
expended by Mr. Luers and his hourly rate are reasonable, in light of the factors elicited by
R.P.C. 1.5(a). However, the Court finds that, although this matter involved a novel and complex
issue under OPRA, it did not involve such legal risks to warrant the exceptional circumstances
contemplated by the Supreme Court in warranting an enhancement of the contingency fee. Here,
no economic disincentive existed independent of that created by Mr. Luers' basic contingency in
payment. The Court also finds that the expense charges for postage, printing and copying,
supplies, and lodging constituted firm overhead to be borne by Mr. Luers.
S "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6
6
Accordingly, Plaintiffs are entitled to $13,740.00 in fees and costs totaling $723.13. In
addition, Plaintiffs are entitled to $1,560.00 for the 5.2 hours expended in responded to
Defendants' cross-motion and opposition. Thus, Plaintiffs are entitled to a total of $16,023.13 in
fees and costs.
b. Defendants' Cross-Motion to Stay Award of Attorney's Fees
R. 2:9-5(a) provides,
Except as otherwise provided by R. 1:10 (Contempt), neither an appeal, nor
motion for leave to appeal, nor a proceeding for certification, nor any other
proceeding in the matter shall stay proceedings in any court in a civil action or
summary contempt proceeding, but a stay with or without terms may be ordered
in any such action or proceeding in accordance with R. 2:9-5(b). [...] A judgment
or order in a civil action. adjudicating liability for a sum of money or the rights or
liabilities of parties in respect of property which is the subject of an appeal or
certification proceedings shall be stayed only upon the posting of a supersedeas
bond or other form of security pursuant to R. 2:9-6 or a cash deposit pursuant to
R. 1:13-3(c), unless the court otherwise orders after notice and on good cause
shown. Such posting or deposit may be ordered by the court as a condition for the
stay of any other judgment or order in a civil action.
R. 2:9-5(b) provides, "[a] motion for a stay in a civil action or contempt proceeding prior
to the date of the oral argument in the appellate court or of submission to the appellate court for
consideration without argument shall be made first to the court which entered the judgment or
order."
In this instance, the Court is confident that the Defendant Township is a worthy obligor
who can be relied upon to honor its debts in a timely fashion. Mr. Leurs need not concern
himself with collection of his counsel fees should the Township's appeal be unsuccessful.
Accordingly the Court hereby grants Mr. Leurs an award of counsel fees and costs totaling
$16,023.13 the same to be paid or not upon a final determination made by the Appellate
Division, or, by the Supreme Court. Conformed copies of the Court's Orders accompany this
Memorandum of Decision.
(g_i "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6
. Clarification of Court Order
With regards to Galloway Township's request for clarification of the Court's June 10, 2014
order, when and if it is necessary, the Court will hold an in camera review of the requested
documents prior to release of the documents to Plaintiff.

NELSON C. JOHNSON, J.S.C. Date of Decision:
1) "The Judiciary of New Jersey is an equal Opportunity/Affirmative Action Employer" 6