Opinion
Case No. 5:98 CV 2554.
October 16, 2000.
MEMORANDUM OF OPINION AND ORDER
Before the Court is Plaintiff's Fee Application Motion (Doc. No. 187). For the reasons stated below, Plaintiff's Fee Application is GRANTED in part and DENIED in part.
This case arose out of Plaintiff's claims that his employer, Consolidated Freightways, Inc., intentionally discriminated against him because of his race, wrongfully terminated him, and contributed to a hostile work environment, all in violation of Title VII of the Civil Rights Act of 1964. (Doc. No. 1). Defendant vigorously denied Plaintiff's allegations, and after several months of discovery, including over 20 depositions, the case proceeded to trial. After hearing more than a week of testimony from both parties, the jury returned a verdict in favor of Plaintiff. Plaintiff now seeks attorney's fees and expenses pursuant to 42 U.S.C. § 1988(b) and 42 U.S.C. § 2000e-k. (Doc. Nos. 187 and 191). Defendant recognizes that the Court has discretion to award attorney's fees under the cited statutes, but maintains that the $248,574.28 sought by Plaintiff is unreasonable and unsupportable. (Doc. No. 198).
I. Applicable Law
It is well established that a court may award attorney's fees to a prevailing party in a Title VII action. See, e.g., Scales v. J.C. Bradford Co., 925 F.2d 901 (6th Cir. 1991); Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997), cert. denied, 525 U.S. 822 (1988); Coulter v. Tennessee, 805 F.2d 146 (6th Cir. 1986), cert. denied, 482 U.S. 914 (1987). The primary concern in making such an award is that the fee be reasonable, "that is, one that is adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers." Adock-Ladd v. Secretary of Treasury, 2000 WL 1260559, *4 (6th Cir. 2000).
The starting point for calculating a reasonable attorney's fee is the determination of the fee applicant's "lodestar." Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). The lodestar is calculated by "multiplying the number of hours billed by a reasonable billing rate."Id. The fee applicant has the burden of providing the court with evidence supporting the number of hours worked and the rates claimed.Id. at 472. It is within the Court's discretion to reduce the number of hours claimed if those hours are not adequately documented or appear to be excessive. Id.; Coulter v. Tennessee, 805 F.2d at 149. Similarly, it is within the Court's discretion to determine whether a fee applicant's quoted rates are reasonable. Id. at 148. A reasonable billing rate is one that does not "exceed the market rates necessary to encourage competent lawyers to undertake the representation in question."Id. "Such fees are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in the area." Id.
The Court may enhance or reduce the loadstar amount based upon the twelve factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and subsequently adopted by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 432 (1983). However, "modifications to the lodestar are proper only in certain `rare' and exceptional cases, supported by both `specific evidence' on the record and detailed findings by the lower courts." Adock-Ladd v. Secretary of Treasury, 2000 WL 1260559, *5 (6th Cir. 2000) (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)).
Those factors include: 1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of 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; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Certain litigation expenses are also recoverable in civil rights cases. "An attorney's fee under § 1988 includes those expenses that are incurred in order for the attorney to render his or her legal services and that would ordinarily be charged to a fee paying client."Cleveland Area Board of Realtors v. City of Euclid, 965 F. Supp. 1017, 1023 (N.D. Oh. 1997). A party also may recover costs pursuant to Federal Civil Rule 54(d). Id. at 1024. Although Rule 54(d) creates a presumption in favor of an award of costs, those costs are limited by the definition of costs that is set forth in 28 U.S.C. § 1920. Routine expenses that are ordinarily incorporated into an attorney's overhead are not recoverable under either § 1988 or Rule 54(d). Id. at 1023.
Section 1920 states that a court may award any of the following as costs: 1) fees of the clerk and marshal; 2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; 3) fees and disbursements for printing and witnesses; 4) fees for exemplification and copies of papers necessarily obtained for use in the case; 5) docket fees; and 6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services.
II. ANALYSIS
A. Number of Hours
Plaintiff's Fee Application Motion (Doc. No. 187), seeks compensation for 563 hours of legal work performed by Attorney Gilbert, 56.50 hours of legal research and writing by Attorneys Zerrusen and Foster, and 30.75 hours of legal assistance by a law clerk. In its Response in Opposition to Plaintiff's Fee Application (Doc. No. 198), Defendant claims that Plaintiff's counsel performed unnecessary work and failed to adequately explain and document the requested time. Defendant is especially critical of time Plaintiff's counsel allegedly devoted to the following: 1) preparing discovery requests and reviewing responses to them (6 hours); 2) preparing 38 trial subpoenas (2.5 hours); 3) preparing witness lists (4.5 hours); 4) preparing motion for enlargement of time at trial (1.0); 5) preparing motion to continue trial (6.5 hours); 6) research (58.50 hours); 7) attendance at a deposition (2.0); 8) reviewing and responding to an Offer of Judgment (.75); and 9) responding to an unspecified request by Defendant (1.0).
Defendant contends that Plaintiff's discovery requests, subpoenas, witness lists, motion for enlargement of time, and motion for continuance were unnecessary and should be eliminated or reduced in the Court's calculation of attorney's fees. The Court disagrees. As the Sixth Circuit Court of Appeals has noted:
The question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.Woolridge v. Marlene Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990). The Court has no reason to believe that a reasonable attorney would not have taken the above actions in an effort to help his client succeed at trial. For this reason, the Court will not reduce the number of hours Plaintiff's counsel claims to have devoted to those actions.
Defendant also finds fault with the lack of documentation concerning the hours that Plaintiff's counsel has listed in the fee application as attorney research. Defendant claims that there is no support in the fee application for 26.50 of the hours and that the documentation concerning the 30.0 remaining hours is inadequate. A careful review of the fee application reveals that Plaintiff has indeed provided the Court with entries concerning 26.5 hours of work by an Attorney Zerrusen (fee application entries 741 (2.0 hours), 748 (1.5 hours), 758 (1 hour), 764 (6.5 hours), 775 (4.0 hours), 794 (8.5 hours), 795 (3.0)). Each of the tasks listed represents work that a senior attorney might assign to a less experienced attorney who could be billed out at a lower rate. There is no evidence to suggest that Attorney Zerrusen's hours were unnecessary or unreasonable.
The remaining 30 hours that are designated as "attorney research" in the fee application are documented on a timesheet signed by Attorney Greta Foster. Although the time sheet does not provide specific descriptions of the research conducted, a review of the docket sheet reveals that Plaintiff filed several post-judgment briefs, including responses to Defendant's motion for a new trial and motion for partial judgment as a matter of law, during the three week period reflected on the time sheet. (Doc. Nos. 180, 181, 183, and 184). Moreover, there are no other entries in the fee application concerning work related to those pleadings. Because the nature of the research is discernable and the amount of time devoted to the research was reasonable given the nature of the post-judgment motions, the Court finds that Plaintiff is entitled to recover attorney's fees for these hours. See, e.g. Reed v. Country Miss, Inc., unpublished, 57 F.3d 1070 (6th Cir. 1995) (holding that prevailing party was entitled to attorney's fees for general "research" entries in printouts of billing records where topic of research was reasonably apparent from other items listed).
Defendant further argues that Plaintiff should not receive attorney's fees for attending the deposition of Charles Knock on December 20, 1990, reviewing and responding to an Offer of Judgment in April 1999, and responding to an unspecified request by Defendant in April 2000. Defendant claims that attorney's fees should not be awarded for the deposition because Charles Knock was never deposed. Receipts submitted along with the fee application reveal that plaintiff's counsel did attend a deposition on the date specified, but it was the deposition of George Knock rather than Charles Knock. Because Plaintiff does not seek additional fees for attending the deposition of George Knock, it appears that the wrong first name was simply entered into the billing statement.
Similarly, Defendant contends that Plaintiff should not receive fees for reviewing and responding to an Offer of Judgment because Plaintiff's fee application indicates that the work took place in April 1999 rather than April 2000 when the Offer of Judgment was actually presented to Plaintiff. Given that there was an Offer of Judgment and there are no additional entries indicating that Plaintiff reviewed or responded to such an offer, it appears that the entry of April 1999 rather than April 2000 was simply a typographical error.
Finally, Defendant argues that Plaintiff should not receive compensation for entry 699 because the entry is incomplete. Although the entry does appear to be cut off ("Reviewed Defendants' response to Plaintiff's request for"), references to "reviewing additional documents" and discovery in subsequent entries make it apparent that Plaintiff's counsel spent the hour in question reviewing Defendant's responses to discovery requests. The Court finds that one hour is a reasonable amount of time for reviewing an opposing party's response to a discovery request. Although Plaintiff's counsel could have paid more attention to detail in preparing his billing statements, mere typographical errors should not prevent an award of attorney's fees for work that was actually performed.
For the reasons stated above, the Court finds that Plaintiff should be compensated for all of the hours listed on the summary sheet of the fee application.
B. Hourly Rates
In his Fee Application Motion (Doc. No. 187), Plaintiff seeks $250.00 per hour for the services of Mr. Gilbert, who was lead counsel, and $150.00 per hour for the services of the attorneys who assisted Mr. Gilbert with research and writing. In support of the requested rates, Plaintiff presents affidavits of Attorney Gilbert and two other attorneys. (Doc. No. 192). Attorney Gilbert's affidavit merely attests to the validity of the fees charged and the reasonableness of his hourly rate. Id. The affidavit of Attorney Brian Williams states that "the rates and costs charged are fair and equitable." Id. Finally, the affidavit of Attorney Nancy Grim, states that "the prevailing market rates charged for federal cases in this judicial district by attorneys with experience and qualifications comparable to Attorney Gilbert, for work comparable to his work in this case, are $200 to $400 per hour." Id.
Defendant contends that the hourly rates sought by Plaintiff's attorneys should be reduced because they exceed the prevailing market rates, and suggests a rate of $175 per hour for Attorney Gilbert. (Doc. No. 198, pp. 5-7). In making this argument, Defendant refers the Court toReed v. Rhodes, 179 F.3d 453 (6th Cir. 1999), a school desegregation case in which the Sixth Circuit Court of Appeals affirmed a district court's determination that reasonable attorney's fees in the Northern District of Ohio were $187 per hour for an attorney who had sought $340 per hour, $175 per hour for an attorney who had sought $175-$225, and $110 per hour for an attorney who had sought $160 per hour.
The Court agrees that the rates proposed by Plaintiff go beyond those necessary to attract a competent lawyer to undertake similar representation. As the Sixth Circuit has noted:
[Attorneys] fees are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in a region. Under these statutes a renowned lawyer who customarily receives $250 an hour in a field in which competent and experienced lawyers in the region normally receive $85 an hour should be compensated at the lower rate. We therefore apply the principle that hourly rates should not exceed the market rates necessary to encourage competent lawyers to undertake the representation in question.Reed v. Rhodes, 179 F.3d at 472 (quoting Coulter v. Tennessee, 805 F.2d at 149). On the other hand, the rate suggested by the defendant is too low. The Court concludes that $200 per hour for Attorney Gilbert is appropriate. As the affidavit of Attorney Grim indicates, the minimum hourly rate that would be sufficient to attract competent and experienced counsel in this region is $200 per hour. Such a rate is also in accordance with the rates in Reed v. Rhodes, were those rates to be adjusted for inflation. The hourly rates for Attorneys Zerrusen and Foster are also in need of adjustment. The Court finds that a reasonable hourly rate for these apparently competent but less experienced attorneys is $125 per hour. This hourly rate is well within the range specified inReed v. Rhodes. Id. at 472. Defendant has offered no criticism of the billing rate of Plaintiff's law clerk. Accordingly, the Court finds that the $50 per hour rate indicated in the fee application is reasonable.
C. Fee Application
Plaintiff seeks $7,037 for preparation of his Fee Application Motion (Doc. No. 187). This amount is equivalent to five percent of the total amount of time spent by Attorney Gilbert in the underlying case. Plaintiff claims that "the Sixth Circuit has long held that a five percent enhancement for preparation for [sic] attorney fee application is appropriate." (Doc. No. 208, p. 4). Plaintiff relies on Coulter v. Tennessee, supra, to support his argument that a five percent fee enhancement is appropriate. Id. As Defendant notes, Coulter does not stand for the proposition that a party is entitled to an automatic fee enhance of five percent. Rather, the case stands for the proposition that a court may award attorney's fees equivalent up to five percent of the hours spent on the main case. Coulter v. Tennessee, 805 F.2d at 151 ("In the absence of unusual circumstances, the hours allowed for preparing and litigating the attorney fee case should not exceed 3% of the hours in the main case when the issue is submitted on the papers without a trial and should not exceed 5% of the hours in the main case when a trial is necessary.").
In this case, there was no trial on the issue of attorney's fees, therefore, it would be inappropriate for the Court to award an amount equivalent to five percent of the hours in the main case. Nonetheless, the Court recognizes that a prevailing attorney in a civil rights case may receive compensation for preparing an attorney fee application. Given the lengthy, but largely computer generated nature of the application in this case, the Court finds that Plaintiff should be awarded $2,000 — an amount equivalent to ten hours of Mr. Gilbert's time — as compensation for preparing the fee application.
D. Enhancement
Plaintiff seeks a 45% enhancement of his lodestar. (Doc. No. 187). Neither his Fee Application Motion (Doc. No. 187) nor his reply brief (Doc. No. 208) provides any basis for this enhancement. The mere fact that Plaintiff prevailed does not in itself warrant a fee enhancement.See, e.g., Wells v. United States Steel, 76 F.3d 731 (6th Cir. 1996) (affirming denial of 1.5% fee enhancement). Accordingly, Plaintiff's request for a 45% enhancement is DENIED.
E. Costs
Plaintiff seeks $24,404.90 for expenses associated with this litigation. (Doc. No. 191). Defendant objects to Plaintiff's request for expenses related to computerized billing and witness fees.
Plaintiff lists among his expenses a $350 computer billing surcharge. Because Plaintiff has provided no documentation concerning this expense, the court assumes that it relates to the computerization of billing statements. Such a charge appears to be an overhead expense which is not compensable under either § 1988 or § 1920. See, e.g., Cleveland Area Board of Realtors v. City of Euclid, 965 F. Supp. at 1024 (holding that clerical overtime is an overhead expense that is not compensable under § 1988 or § 1920). Consequently, the Court DENIES Plaintiff's request for the computer billing surcharge.
Plaintiff also seeks $1,711.73 for witness fees. (Doc. No. 191). Defendant contends that Plaintiff should not be awarded the full amount requested because some of the witnesses did not testify at trial, one witness' name was not properly spelled, and another witness was listed twice under different names. (Doc. No. 198, p. 13). The Court finds that Plaintiff's witness fees for the witnesses who did not testify at trial are properly taxable as costs. See, e.g., M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991) (holding that $918 incurred as witness fees for witnesses who did not testify at trial was properly taxed as costs). The Court relies upon Mr. Gilbert's affidavit in finding that witness fees were actually paid to all of the individuals listed in the corrected fee application. (Doc. No. 193). Accordingly, the Court awards Plaintiff the full amount sought for witness fees.
Defendant does not contest any of the other expenses listed by Plaintiff and the Court finds that those expenses are reasonable.
III. CONCLUSION
For the reasons stated above, the Court hereby GRANTS Plaintiff's Fee Application (Doc. No. 187) in part. Defendant is hereby ORDERED to pay the following attorney's fees and expenses to Plaintiff:
Attorney's Fees Rate Hours Total
a) Fees for Mr. Gilbert's services $200 573 $ 114,600.00 (Including 10 hours for fee application)
b) Fees for Attorney Zerrusen $125 26.50 $ 3,312.50
c) Fees for Attorney Foster $125 30 $ 3,750.00
d) Fees for law clerk $50 30.75 $ 1,537.50
Combined Fees $ 123,200.00
Expenses Amount
a) Fees of Clerk $ 150.00
b) Court Reporters and Transcripts $ 17,455.15
c) Witness Fees $ 1,711.73
d) Exemplification and Copies of Papers Used in Case $ 1,785.62
e) Other Costs (minus the Computer Billing Surcharge) $ 2,952.40
Combined Costs $ 24,054.90
Combined Fees and Costs $ 147,254.90
Plaintiff's request for a 45% lodestar enhancement and any requests for amounts inconsistent with the above figures are hereby DENIED.