Opinion
Civil Action No. 1:00CV318-D-A
March 15, 2002
OPINION CALCULATING ATTORNEYS' FEES
Presently, before the court is the Defendants' motion for attorneys' fees. Pursuant to an order of November 16, 2001, this court sanctioned the Plaintiff for fraudulently producing evidence by ordering her to pay the Defendants' reasonable costs and attorneys' fees in connection with discovery of this matter. Upon due consideration, the court finds the motion is well taken, but not however, in the amount requested.
Counsel for the Defendants North Mississippi Medical Center and Rodger Brown submitted an affidavit requesting $28,900 for 158.72 hours. Counsel for the Defendant Mike Dillard submitted an affidavit requesting $19,180.75 for 86.8 hours, plus, $69.15 in expenses. Goodin opposes both the reasonableness of the total hours and the rate of compensation requested. She does not oppose the costs in this matter.
A. Standard for Calculating Fees
In calculating attorneys' fees, the court is to calculate the lodestar, which is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly billing rate. Tollett v. City of Kemah, No. 00-20994, 2002 WL 355917, at*9 (5th Cir. March 6, 2002); Worldcom, Inc. v. Automated Communications, Inc., 75 F. Supp.2d 526, 530 (S.D.Miss. 1999) (citations omitted). Once the lodestar is calculated, the district court must address its reasonableness as a whole. Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 50 (1983) ("the product of reasonable hours times a reasonable rate does not end the inquiry."); Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir. 1992). In doing so, the district court must consider the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (rev'd on other grounds, Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)), and made a part of the Uniform Local Rule 54.2(B) which is titled "Motions for Attorney's Fees." It states in pertinent part:
(3) In all motions for attorneys' fees, movant shall, by affidavit of counsel, address the following factors relating to the determination of a reasonable allowance:
1. The time and labor required, including an itemized statement of all time expended by counsel and a brief description of the services performed during each period of time itemized.
2. The novelty and difficulty of the questions.
3. The skill requisite to perform the legal services properly.
4. The preclusion of other employment by the attorney due to acceptance of the case.
5. The customary fee.
6. Whether the fee is fixed or contingent.
7. Time limitations imposed by the client or the circumstances.
8. The amount involved and the results obtained.
9. The experience, reputation, and ability of the attorneys(s).
10. The "undesirability" of the case.
11. The nature and length of the professional relationship with the client.
12. Awards in similar cases.
The fee applicant bears the burden of documenting the appropriate hours expended and hourly rates. Abrams v. Baylor College of Medicine, 805 F.2d 528, 535-36 (5th Cir. 1986) (citing Hensley, 461 U.S. at 434-35, 103 S.Ct. at 1940). Where the documentation is inadequate, the district court has discretion to reduce the award accordingly. Abrams, 805 F.2d at 536.
1. Number of Hours Reasonably Required
The Defendants North Mississippi Medical Center and Rodger Brown are represented by The Kullman Firm in Jackson, Mississippi. Michael Farrell, a member of the firm, has been a practicing attorney in Jackson, Mississippi, for 26 years. He did most of the work on the discovery, billing 143 net hours according to submitted documents. Rick Hammond, an associate with the firm, has been practicing for 5 years. The documents submitted state that he billed 11.5 hours regarding discovery in this matter. Ernest R. Malone, a member of the firm, has been in practice for 27 years and he billed only 4.25 hours relating to discovery according to the submitted documents.
The Defendant Mike Dillard is represented by the firm of Ford Harrison in Memphis, Tennessee. N. Victoria Holladay, a partner in the firm, has been practicing solely in the area of labor and employment law for over 14 years. She did most of the work on the case and submitted documents that she had billed some 83.20 hours relating to discovery. Paige Paulette, a paralegal, billed 3.6 hours.
Goodin objects to many of the hours billed. She asserts that the total hours which The Kullman Firm is claiming should be reduced by 84.00 hours and the total hours which Ford Harrison is claiming should be reduced by 74.4 hours. The court agrees in part. It appears that some time claimed by both counsels is wholly unrelated to discovery. Additionally, both counsels for the Defendants co-mingled discovery time and non-discovery time. Accordingly, the court finds that The Kullman Firm's time should be reduced by 29.22 hours for a total of 129.50 hours and Ford Harrison's time should be reduced by 19.10 hours, for a total of 67.70 hours.
This court's order of November 16, 2001, allowed for attorneys' fees for time related only to discovery in this matter. However, it appears that both firms have included time which is entirely unrelated to discovery. The time entirely unrelated to discovery for The Kullman Firm is: (1) 10-4-00, .50 hours; (2) 10-5-00, 1.0 hours; (3) 10-6-00, .25 hours; (4) 10-9-00, 1.50 hours; (5) 10-9-00, 1.75 hours; (6) 10-11-00, .25 hours; (7) 10-12-00, .50 hours; (8) 10-25-00, .50 hours; (9) 10-30-00, .25 hours; (10) 11-14-00, .25 hours; (11) 10-17-00, .25 hours; (12) 11-23-00, .25 hours; (13) 12-1-00, .50 hours; (14) 12-4-00, .25 hours; (15) 12-4-00, .50 hours; (16) 12-14-00, 2.75; (17) 12-17-00, .25 hours; (18) 12-26-00, .75 hours;(19) 1-23-01, .25 hours; and (20) 1-23-01, .25 hours. Thus, The Kullman Firm's time shall be reduced by 12.75 hours.
The time entirely unrelated to discovery for The Ford Harrison Firm is: (1) 9-20-00, 1.5 hours; (2) 10-5-00, .50 hours; (3) 10-10-00, .70 hours; and (4) 11-27-00, 1.70 hours. Thus, Ford Harrison's time shall be reduced by 4.40 hours.
Additionally, it appears that there is time billed which is entirely related to discovery and not objected to by Goodin. The court finds that this time shall be granted in whole. See Tollett, 2002 WL 355917 at *10. The time entirely related to discovery and not objected to by Goodin, which The Kullman Firm billed is: (1) 10-10-00, .50 hours; (2) 10-11-00, 3.0 hours; (3) 10-27-00, .75 hours; (4) 10-27-00, .25 hours; (5) 11-3-00, .50 hours; (6) 11-7-11, .75 hours; (7) 12-6-00, 1.0 hours; (8) 12-7-00, .50 hours; (9) 12-9-00, 4.25 hours; (10) 12-11-00, .50 hours; (11) 12-12-00, 3.0 hours; (12) 12-13-00, .50 hours; (13) 12-15-00, 6.5 hours; (14) 12-18-00, 6.0 hours; (15) 12-21-00, 1.0 hours; (16) 12-28-00, 2.5 hours; (17) 12-29-00, 2.5 hours; (18) 1-8-01, 3.5 hours; (19) 1-9-01, 1.75 hours; (20) 1-11-01, 1.25 hours; (21) 1-12-01, .25 hours; (22) 1-13-01, .25 hours; (23) 1-17-01, 3.50 hours; (24) 1-18-01, 2.0 hours; (25) 1-19-01, 4.75 hours; (26) 1-20-01, .25 hours; (27) 1-21-01; 2.0 hours; (28) 1-22-01, .25 hours; (29) 1-30-01, .50 hours; (30) 1-30-01, 3.25 hours; (31) 2-1-01, 1.0 hours; (32) 2-7-01, 3.50 hours; (33) 2-9-01, .50 hours; (34) 2-12-01, 2.0 hours; (35) 2-19-01, .25 hours; and (36) 2-20-01, 1.7 hours. Thus, The Kullman Firm is entitled to 66.45 uncontested hours.
The time which was entirely dedicated to discovery and not objected to by Goodin for The Ford Harrison Firm is: (1) 12-18-00, 1.0 hours; (2) 1-4-01, .50 hours; (3) 1-5-01, .50 hours; (4) 1-6-01, .40 hours; (5) 1-10-01, 1.50 hours; (6) 1-22-01, 1.0 hours; (7) 1-26-01, 1.50 hours; (8) 2-3-01, .50 hours; (9) 2-7-01, .50 hours; (10) 2-9-01, 1.0 hours; and (11) 2-15-01, .50 hours. Thus, The Ford Harrison Firm is entitled to 8.9 uncontested hours.
The remaining hours are co-mingled. The Kullman Firm has 79.55 co-mingled hours and The Ford Harrison Firm has 73.50 co-mingled hours. Counsel for the Defendants have failed to separate their time between discovery and other non-discovery related issues. Goodin proposes that all time which is co-mingled should be denied. The court does not agree. While it would not be fair to the Defendants to totally deny all mixed time, it would also not be fair to Goodin to pay for time which does not relate to discovery.
For guidance, the court looks to Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187 (5th Cir. 1996). The court in Merriman was faced with a similar dilemma. There, the court ordered the Plaintiff to pay the Defendant's attorney's fees for answering all frivolous claims as the result of a Rule 11 sanction. However, the attorneys were unable to separate out the frivolous fees from the unfrivolous fees. The court "in order to achieve fairness and equity between the parties, and to avoid the possibility of duplicative charges[,]" reduced the amount of declared fees by ten percent. Merriman, 100 F.3d at 1195. The Fifth Circuit said that the District Court did not abuse it's discretion in reducing the fees. Id. This court agrees. It appears, however, that approximately 20 percentage of the time billed by defense counsel was spent on non-discovery related matters. Accordingly, the court finds that a reduction of all remaining co-mingled time should be reduced by 20 percent. Thus, The Kullman Firm is entitled to a total of 129.50 hours of time (122.45 for Farrell, 6.2 for Hammond, and .85 for Malone) and Ford Harrison is entitled to a total of 67.70 hours of time (64.82 for Holladay and 2.88 for Paulette).
2. Reasonable Hourly Rate
The parties also dispute the appropriate hourly rate. Generally, to determine reasonable rates, a court considers the attorneys' regular rates as well as prevailing rates. Louisiana Power Light Company v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995) (citations omitted). The attorneys' fee calculus is a fact-intensive one and its character varies from case to case. Hopwood v. State of Texas, 236 F.3d 256, 281 (5th Cir. 2000). Hourly rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that "lions at the bar may command." Hopwood, 236 F.3d at 281. When the attorney's customary hourly rate is within the range of hourly fees in the prevailing market, the rate should be considered in setting a reasonable hourly rate. League of United Latin Am. Citizens #4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1234 (5th Cir. 1997).
The Kullman Firm requests that Michael Farrell, a member of the firm who has 26 years of experience, be compensated at a rate of $185.00 per hour. They also request that Rick Hammond, an associate with 5 years of experience, be compensated at a rate of $135.00 per hour. Finally, they ask that Ernest R. Malone, a member of the firm with 27 years of experience, be compensated at a rate of $210.00 per hour.
The Ford Harrison Firm requests that N. Victoria Holladay, a partner in the firm with over 14 years of experience, be compensated at a rate of $225.00 per hour. Additionally, they ask that Paige Paulette, a paralegal, be compensated at a rate of $90.00 per hour.
Goodin objects to the hourly rates. She cites Reeves v. Sanderson Plumbing Products, Inc., No. 1:96cv197-S-D, 2001 WL 1524412 *1 (N.D.Miss. May 14, 2001), for the reasonableness of fees in the Northern District of Mississippi. In that case Goodin's attorney, Jim Waide, requested an hourly rate of $200.00 per hour. Judge Senter ruled that a fee of $150.00 for Waide was appropriate and a fee of $50.00 per hour for paralegal work was appropriate. However, the court finds that in the Reeves case, Judge Senter took into consideration the fee which Waide normally charges, which was $150.00 per hour. The attorneys' regular hourly fees in the case at hand are much higher.
Generally, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there. Tollett, 2002 WL 355917 at *10 (citing Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993)). However, neither firm for the Defendants offered such affidavits and instead, rely upon their own assertions that their fee is reasonable.
In a recent opinion granting attorneys' fees in a remand action, this court found that $200.00 per hour for an experienced trial attorney was reasonable. See Brown v. Ascent Assurance, Inc., et al., Civil Action No. 4:01CV157 (N.D.Miss. Feb. 22, 2002). The court also found that $130.00 per hour was a reasonable rate for an associate with 4 years of experience and $160.00 per hour was a reasonable rate for an associate with 6 years of experience.
In the Brown case, the affidavit of Jack Dunbar, an attorney with the firm of Holcomb Dunbar in Oxford, Mississippi, was submitted. He stated that he "currently charge[s] $250.00 per hour in litigation in the State of Mississippi." Mr. Dunbar further stated that it "is my opinion that Two Hundred Fifty Dollars ($250) per hour is a proper and/or reasonable fee" for services.
The affidavit of Crymes Pittman was also submitted in the Brown case. Pitman is an attorney in the Jackson, Mississippi, area. He states that he is "familiar with the reasonable hourly rates charged by attorneys in the State of Mississippi for their services in federal and/or state litigative actions." He also states that $250.00 per hour is a proper and/or reasonable fee for services.
Upon consideration of the foregoing affidavits and the Reeves case, this court is of the opinion that a rate of $185.00 per hour is a reasonable rate for the services of Farrell, Holladay and Malone in this case. In light of the evidence before the court concerning experience, this court is reluctant to say that Holladay and Malone's services are worth more than Farrell's. Since Farrell's customary hourly rate is $185.00, this court finds that $185.00 is a reasonable rate for Holladay and Malone also. Additionally, the court finds that the rate of $100.00 per hour for Hammond is also reasonable. There was no evidence of the reasonable rate for a paralegal's fees before this court with the exception of Holladay's affidavit and the Reeves case. Accordingly, the court holds in accordance with the Reeves case and finds that the hourly rate of $50.00 is reasonable for the services of Paulette.
Thus, in calculating the lodestar, the court finds that Farrell is entitled to $22,653.25 (122.45 x $185 = $22,653.25) for his services; Hammond is entitled to $620.00 (6.2 x $100 = $620.00) for his services; Malone is entitled to $157.25 (.85 x $185 = $157.25) for his services; Holladay is entitled to $11,991.70 (64.82 x $185 = $11,991.70) for her services; and Paulette is entitled to $144.00 (2.88 × $50 = $144.00) for her services.
3. Overall Reasonableness
Next, the court must evaluate the reasonableness of the fees as a whole. In doing so, the district court must consider the twelve factors set out in Johnson and Uniform Local Rule 54.2(B). Then, the court can adjust the lodestar either up or down. Roscoe Indep. Sch. Dist., 119 F.3d at 1232. Of course, although the district court must consider each of these factors, the court need not act upon any of them. Kellstrom, 50 F.3d at 330-31.
First, the time and labor required. From the documents submitted, the court finds that discovery in this matter extended over a 4 ½ month period. There were numerous handwritten documents in question and each private investigator in Lee County, Mississippi, had to be subpoenaed. However, discovery for such a matter often extends over a longer period of time and involves numerous documents. Accordingly, the court finds that this factor does not call for an adjustment of the lodestar calculation.
Second, the novelty and difficulty of the questions. The court finds that the questions involved were neither novel or difficult. Accordingly, the court finds that this factor does not call for an adjustment of the lodestar calculation.
Third, the skill requisite to perform the legal services properly. Again, the court finds that this factor does not call for an adjustment of the lodestar calculation. This matter required no greater skill than the average discrimination case.
Fourth, the preclusion of other employment by the attorney due to acceptance of the case. No evidence is before the court that any attorney was precluded from other employment. Therefore, the court finds this factor does not apply.
Fifth, the customary fee. This factor has previously been discussed and considered in evaluating the reasonable fee and lodestar. Accordingly, it will not call for an adjustment of the lodestar calculation.
Sixth, whether the fee is fixed or contingent. The court is of the opinion that both The Kullman Firm and the firm of Ford Harrison, as defense attorneys, had a fixed hourly rate, as evidenced by their submitted billing records. Accordingly, this factor does not change the lodestar amount.
Seventh, time limitations imposed by the client or the circumstances. There is no evidence before the court that this matter had any such limitations. Accordingly, the court finds that this factor does not apply.
Eighth, the amount involved and the results obtained. Again, the court finds that this factor does not call for an adjustment of the lodestar.
Ninth, the experience, reputation, and ability of the attorneys. This factor has been previously considered when calculating the reasonable fees and the court finds no evidence that would indicate that it should now adjust the lodestar amount.
Tenth, the "undesirability" of the case. No evidence is before the court that would make this a more "undesirable" case than any other discrimination case. Accordingly, the court finds that this factor does not require an adjustment of the lodestar.
Eleventh, the nature and length of the professional relationship with the client. There is no evidence before the court concerning the nature and length of the professional relationship of the attorneys with their clients. Accordingly, the court finds that this factor does not apply.
Twelfth, awards in similar cases. The court finds that this is an appropriate award when compared to similar cases. In Merriman the Fifth Circuit upheld an award of $56,115.63 in attorneys' fees awarded as a result of pursuing frivolous claims. Merriman, 100 F.3d at 1195. Further, in Aktiengesellschaft v. Smoked Foods Products Co., Inc., 960 F.2d 564 (5th Cir. 1992), the Fifth Circuit declared that the defendants were entitled to recover $63,571.88 as reasonable attorney fees, costs, and expenses for the plaintiff's frivolous continued prosecution of an action. Aktiengesellschaft, 960 F.2d at 567. Accordingly, the court finds that the award in the instant case is appropriate.
B. Reasonable Costs and Expenses
Both The Kullman Firm and Ford Harrison are entitled to reasonable costs and expenses associated with the discovery in this matter. However, The Kullman Firm has neglected to pursue any reimbursement for costs. As such, none will be awarded to them. Ford Harrison, on the other hand, has requested only $69.15 for the cost of copies. Goodin had no objections to these cost. As such, the court finds that they are reasonable and Ford Harrison shall be awarded $69.15 in costs.
C. Conclusion
For the above and foregoing reasons, the court awards The Kullman Firm fees in the total amount of $23,430.50 ($22,653.25 for Farrell; $620.00 for Hammond; $157.25 for Malone) and awards The Ford Harrison Firm fees in the total amount of $12,135.70 ($11,991.70 for Holladay; $144.00 for Paulette). Additionally, The Ford Harrison Firm is awarded costs in the amount of $69.15. Goodin is directed to pay the foregoing sums no later than 30 days from the date this opinion is filed.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING ATTORNEYS' FEES
Pursuant to an opinion issued this day, it is hereby ordered that:
1. the Defendant's motion for attorneys' fees (docket entry #75) is GRANTED;
2. the Plaintiff is ordered to pay The Kullman Firm, Suite 2160, AmSouth Plaza, 210 E. Capitol Street, Jackson, Mississippi, 39201, the amount of $23,430.50 for reasonable attorneys' fees regarding discovery in this matter;
3. the Plaintiff is ordered to pay The Ford Harrison Firm, 6750 Poplar Avenue, Suite 600, Memphis, Tennessee, 38138, the amount of $12,135.70 for reasonable attorneys' fees regarding discovery in this matter, plus, the sum of $69.15 for reasonable costs in this matter; and
4. the Plaintiff will pay these amounts no later than 30 days from the date this order is filed.