Opinion
Civil Action No: 98-3522.
July 13, 2000.
ORDER AND REASONS
On February 28, 2000, the defendants, The International Brotherhood of Electrical Workers Local 130 ("IBEW") and Robert Hammond ("defendants") filed a Motion for Attorneys Fees (doc #52), seeking to recover attorney's fees as the prevailing parties to the plaintiff's claim. The defendants seek to recover $16,755.00 in fees and $1,168.52 in costs.
I. Factual Summary
On November 30, 1998, the plaintiff, Francis Tyler, filed suit seeking damages for the alleged unlawful racial discrimination she experienced when she was terminated from her job as a secretary. Tyler filed suit, seeking recovery, pursuant to Title 42 U.S.C. § 2000 (e-5k) and Article III of the Clerical Workers Addendum to the Collective Bargaining Agreement.
On June 25, 1999, the defendant, IBEW, filed a Motion for Summary Judgment, seeking dismissal of the plaintiff's claims on the grounds that (1) the Court lacked subject matter jurisdiction because it was not an employer within the meaning of the statute and because (2) the contract claim prescribed.
On November 12, 1999, the Court granted the Motion for Summary Judgment in part and denied it in part. The contract claim was dismissed as prescribed. The Court, however, denied the motion on the remaining issue regarding whether the defendant was an employer within the meaning of Title VII.
On February 11, 2000, the matter proceeded to a bifurcated trial, upon the consent of the parties. The Court found that the defendant did not qualify as an employer under Title VII. It therefore concluded that it lacked subject matter jurisdiction. On February 11, 2000, the Court issued a judgment and it was entered into the record on February 14, 2000, in favor of the defendants and against the plaintiff, dismissing the remaining claim. II. Standard of Review
The defendants filed the subject motion on February 28, 2000. Therefore, it was timely filed on the fourteenth day.
The Supreme Court in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), set forth the standard of review for district courts faced with determining whether to award attorneys fees to a prevailing defendant in a Title VII case. In Christianburg, the Court held that subject to the district court's discretion, attorneys fees may be awarded to a prevailing defendant, upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith. Christianburg, 434 U.S. at 421.
The Court further cautioned the district court from engaging in a post-hoc reasoning process of concluding that because the plaintiff did not prevail, then the claim was frivolous. The Court further noted that even when the facts appear questionable or unfavorable at the outset, a party may have had an entirely reasonable ground for bringing suit.
"Frivolous, unreasonable, or without foundation," in this context, implies "groundless rather than simply that the plaintiff has ultimately lost his case." Id. at 421-22. Such post hoc reasoning "would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII." Id. at 422. Thus, "[i]t is clear from Christiansburg that attorney s fees to a prevailing Title VII defendant are not routine, but are to be only sparingly awarded." Quiroga v. Hasbro, Inc., 934 F.2d 497, 503 (3rd Cir.), cert. denied, 502 U.S. 940 (1991).
"Cases where findings of `frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment or a . . . motion for involuntary dismissal. In these cases, the plaintiffs did not introduce any evidence to support their claims. Sullivan v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985). On the other hand, in cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand." Sullivan, 773 F.2d at 1189.
In determining if an award of fees to a Title VII defendant is appropriate, courts should consider several factors including "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits." Id. These factors are, however, guideposts, not hard and fast rules. "Determinations regarding frivolity are to be made on a case-by-case basis." Id.
But see Greenberg v. Hilton Int'l Co., 870 F.2d 926, 940 (2d Cir. 1989) ("Cases that are ultimately viewed as frivolous may well survive motions to dismiss under a system of notice pleading that does not require factual detail and even motions for summary judgment in which the evidence may be presented in sketchy fashion and credibility may not be taken into account.").
Even though an inquiry into an award of attorney's fees to a Title VII defendant is individualized, specific examples of awards that have been reversed assist in illustrating the policy behind the rule enunciated in Christiansburg. For example, in EEOC v. Kenneth Balk Assocs., 813 F.2d 197 (8th Cir. 1987), the EEOC filed a Title VII action on behalf of a former employee alleging that the employer, Kenneth Balk Associates ("KBA"), had discharged her on the basis of race.
The case was tried for three days before being continued to permit the parties to conduct additional discovery. The Court then heard more evidence and granted the parties time to file post-trial briefs and proposed findings of fact and conclusions of law. Ultimately, judgment was entered in favor of KBA; the Court awarded counsel fees; and the EEOC appealed. The Eighth Circuit Court of Appeals ruled that the district court had misapplied the Christiansburg standard. Kenneth, 813 F.2d at 198.
The procedural history of the case suggested that the EEOC's claim was not baseless, as KBA neither sought a pretrial dismissal nor moved for summary judgment or a directed verdict. In addition, the district court had permitted the parties to file post-trial briefs and proposed factual and legal conclusions. Furthermore, the district court's findings of fact and conclusions of law disclosed that the court's ruling was based upon its credibility determinations. Id. Thus, the record suggested that the EEOC had some basis for its claim, and the Court of Appeals reversed the award of counsel fees. Id.
In doing so, the Court stated that "however unpersuasive the EEOC's evidence ultimately proved to be, this evidence provided `some basis' for the EEOC's claim. Accordingly, the district court misapplied the Christiansburg standard. . . ." Id.; see also EEOC v. Bruno's Restaurant, 13 F.3d 285, 290 (9th Cir. 1993) (concluding that the "district court failed to exercise its discretion within the permissible bounds of 42 U.S.C. § 2000e-5(k) and within the requirements of Christianburg in awarding fees on the ground that the EEOC presented no credible evidence of discriminatory conduct").
In contrast, the appellate court affirmed the district court's award of attorney's fees to a prevailing defendant, where the plaintiff failed to conciliate, a jurisdictional condition precedent to a suit by the EEOC. See EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982). An award of attorney's fees to a prevailing defendant was also approved in Gipson v. Roseberg, 797 F.2d 224 (5th Cir. 1986), cert. denied, 481 U.S. 1007 (1987), where the plaintiff's § 1983 claim was summarily dismissed for lack of subject matter jurisdiction.
Other cases in this circuit typically have been found frivolous where the district court has decided a summary disposition motion in the defendant's favor. See, e.g., Church of Scientology v. Cazares, 638 F.2d 1272 (5th Cir. 1981); Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5th Cir. 1981).
In the case at bar, the plaintiff failed to provide valid legal support for her claim that the Court had jurisdiction to proceed and evaluate her Title VII claim. The Court first addressed the issue upon review of defendant IBEW's Motion for Summary Judgment. Tyler challenged the dismissal of her contract claim on the grounds that the limitations period should be equitably tolled, because the grievance process was not available to her. The Court, however, dismissed her contract claim because she did not bring it within six months of the date she was on notice of the alleged breach.
Tyler's Title VII claim and claim for emotional distress proceeded forward. On the morning of the bifurcated trial, Tyler voluntarily dismissed her claim for emotional distress. The Court, thereafter, received evidence on whether IBEW had 15 employees such that this Court could consider Tyler's claim pursuant to § 2000e(b).
The Court received and evaluated the testimony of Robert Hammond, IBEW's witness, who was subject to cross-examination by the plaintiff. Upon a motion for involuntary dismissal, the Court concluded that IBEW did not have the requisite number of employees and that the Court, therefore, lacked subject matter jurisdiction over the claim. It should be noted that the plaintiff did not call any witnesses in defense of the defendants' assertion that it lacked the required number of employees in order to be subject to 42 U.S.C. § 2000-(e-5(k). The Court finds that this case is factually similar to the other Fifth Circuit cases in which the district court awarded prevailing party fees to a defendant. Therefore, the Court finds that an award of attorney's fees is appropriate. This, however, does not end the inquiry.
The remaining issues for the Court's consideration are: (1) what is a reasonable attorney's fee for the defendants' attorney; and (2) were the claimed hours reasonably expended. See Hensley v. Eckerhart, 461 U.S. 424 (1983).
III. Reasonableness of Fee
In the Fifth Circuit, the adequacy of a claim for attorney's fees is determined by computing the "lodestar" figure. The Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, 516 U.S. 862 (1995). The lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id.
The Court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar is presumptively correct and should be modified only in exceptional cases. Watkins, 7 F.3d at 457.
The Johnson factors are as follows: (1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill required 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. Id.
The party seeking attorney's fees bears the burden of submitting adequately documented time records. Id. The Court should use the submitted time as a benchmark and exclude any time that is "excessive, duplicative or inadequately documented." Id.
A. Lodestar 1. Reasonable Hourly Rate
Mr. Robein contends that his rate of $100.00 is reasonable. He also seeks to recover fees for the paralegal who assisted him, Elain Colligan, at a rate of $50.00 per hour.
Robein submitted an affidavit stating that he has been practicing law since 1975 and that his hourly billing rate of $100.00 for handling Title VII matters. He is the former chair of the labor law section of the Louisiana State Bar Association and the former co-chair of the American Bar Associations law section.
See the affidavit of Robein.
A reasonable hourly rate is the prevailing market rate, in the relevant legal community, for similar services by attorneys of reasonably comparable skills, experience, and reputation. See Blum v. Stenson, 465 U.S. 886, 895-96 (1984); Gaines v. Dougherty County Board of Education, 775 F.2d 1565, 1571 (11th Cir. 1985). The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987).
However, attorneys working outside of their fields of expertise may deserve an hourly fee lower than their normal billing rate because of their lack of experience. Further, the quality of the attorney's performance in the case should also be considered in placing a value on his or her services. See Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983).
Satisfactory evidence of the reasonableness of the rate is more than the affidavit of the attorney performing the work. Blum, 465 U.S. at 896 n. 11. For example, satisfactory evidence must speak to rates actually billed and paid in similar lawsuits. Testimony that a given fee is reasonable is therefore unsatisfactory evidence of the market rate. See Hensley, 461 U.S. at 439 n. 15 n. 15.
Evidence of rates may be obtained through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breath of the sample of which the expert has knowledge. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988).
a. The Paralegal
The defendants have not submitted any evidence to the Court that would establish that Colligan is a paralegal by education. Therefore, her time is excluded because the defendants have failed to prove that a rate of $50.00 is reasonable for Colligan based upon her education, background, and experience. Consequently, a total of 67.50 hours, at a rate of $50.00, for a total of $3,375.00 is excluded. b. The Attorney
The cost of paralegal services are to be included in the assessment and award of attorney's fees if the following criteria are met:
1. the services performed must be legal in nature; 2. the performance of such services by the paralegal must be supervised by an attorney; 3. the qualifications of the paralegal performing the services must be specified in the application or motion requesting an award of fees in order to demonstrate that the paralegal is qualified by virtue of education, training, or work experience to perform substantive work; 4. the nature of the services performed by the paralegal must be specified in the application! motion requesting an award of fees in order to permit a determination that the services performed were legal rather than clerical in nature; 5. the amount of time expended by the paralegal in performing the services must be reasonable and must be set out in the motion; and 6. The amount charged for the time spent by the paralegal must reflect reasonable community standards of remuneration.See Jones v. Armstrong Cork Co., 630 F.2d 324, 325 n. 1 (5th Cir. 1980). See also Fees for Paralegal Services: Are They Recoverable, 461 PLI/Lit 185 (1993).
Robein has not met his burden of proving that his requested rate of $100.00 is reasonable. Drawing upon its knowledge of attorneys' rates given the locality, the experience level of Robein in civil rights matters, and the complexity of the subject matter including the rates charged in similar cases, the Court, however, concludes that the rate of $100.00 per hour is a reasonable hourly rate.
IV. Determining the Appropriate Fee Award
In determining which hours reported were reasonably expended, the total number of hours reported by each attorney is examined. First, the Court should determine whether the tasks sought to be charged to the adverse party would normally be billed to a paying client. See Ramos v. Lamm, supra.
When examining the hours reported for tasks that are properly billable, the actual hours for the tasks are evaluated to determine if the time spent was reasonable. Determining what is a reasonable time in which to perform a given task or to prosecute the litigation as a whole, can depend upon factors such as the complexity of the case, the number of reasonable strategies pursued and the responses necessitated by the maneuvering of the other side. See Ramos, supra.
A. Billing Judgment
When an attorney submits an Application for Fees, he is required to exercise billing judgment; that is he should exclude excessive, redundant or otherwise unnecessary hours. See Hensley, supra. The party seeking the award should demonstrate the exercise of billing judgment by showing all hours actually expended on the case, but not included in the fee request. Leroy v. City of Houston, 831 F.2d 576, 585 (5th Cir. 1987), cert. denied, 486 U.S. 1008 (1988). Hours that are not properly billed to one's client are not properly billed to one's adversary, pursuant to statutory authority. Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980).
1. Excessive and/or Unnecessary Hours
Unnecessary or excessive work usually occurs when more than one attorney or paralegal attend a deposition, more than one attorney drafts or responds to dispositive motions or even entries reflecting an unusually large block of time billed in one day. The next issue is, therefore, whether a reasonable attorney would have spent as much time preparing a certain pleading. If not, then the time entry is excessive. The hours which are deemed excessive will be cut for recovery purposes. See Rode v. Dellarcipreti, 892 F.2d 1177, 1190 (3rd Cir. 1990) (quoting Lindy Bros. Building Inc. v. American Radiator Standard Sanitary Corp., 487 F.2d 161, 167 (3rd. Cir. 1973)).
After reviewing the billing records, the Court has determined that the following entries are excessive. The Court will not exclude them from recovery, but will reduce them to a reasonable time entry:
Francis Tyler v. IBEW 130
Date Description Hours Reasonable time 02/03/99 attend pretrial scheduling conference before magistrate and conference 3.0 1.5 with opposing counsel 04/13/99 preliminary conference with magistrate 1.5 .50 08/25/99 Prepare pre-trial witness and exhibit lists pursuant to the magistrate's 2.0 1.0 scheduling order; serve opposing counsel; file with USDC 09/10/99 telephone conferences with Tulane Law Clinic re: requested 1.0 .50 deposition of Local 130 employee(s) to test employee jurisdictional count; effect on motion deadline 09/14/99 telephone conference with L. Bohm, Tulane Law Clinic, re: demand .95 .50 for rule 30(b)(6) deposition of Local 130 representative; receive notice; respond 09/16/99 received Judge Sarah Vance's order restricting enrollment of new .25 .20 Tulane Law Clinic law student practitioners; review Tulane Law Clinic followup correspondence 09/24/99 telephone conferences with Tulane Law Clinic's L. Bohm; discuss 1.0 .50 rescheduling of R. Hammond Rule 30(b)(6); letter to R. Hammond; receive faxed notice of deposition 10/11/99 prepare affidavit of W. Clark Davis; telephone conferences with R. 6.5 3.0 Hammond and C. Davis; telephone conference with opposing counsel; prepare Motion for Leave to Supplement Motion for Summary Judgment 10/13/99 oral argument before magistrate on Motion for Summary Judgment 4.25 1.0 10/18/99 prepare Post-hearing Memorandum to magistrate on "payroll test" 3.25 1.5 related issues. 10/25/99 finalize supplemental summary judgment brief; telephone conferences 1.5 1.0 with R. Hammond and Lisa Paul; discuss Tyler's allegation re: office lock-out and "grease in coffee" 11/09/99 attend Pre-trial Conference before magistrate 2.9 1.0 11/22/99 prepare Joint Motion to Dismiss emotional distress claims; file with 1.0 .50 USDC; exchange with opposing counsel 01/28/00 preparation for and attend Pre-trial Conference before magistrate; 4.50 1.5 negotiate evidentiary, trial issues (bifurcate trial on "payroll method") issues); research; telephone conference 02/08/99 prepare Pre-trial Memorandum to magistrate; telephone conference 5.00 1.5 with R. Hammond re: attorney's fees demand on F. Tyler; research 02/11/00 Bifurcated Trial before magistrate; direct examination of R. 7.5 3.0 Hammond; argue Motion to Dismiss 02/28/00 draft and finalize application for attorney's fees and costs; file with 5.0 2.0 USDC 51.1 20.7 2. Calculation of the Lodestar Robein ($100.00) Total hours 109.55 Excessive and/or vague hours -20.70 Total reasonable hours 88.85 Lodestar $8,885.00 Factoring in the inappropriate time entries, the nature and complexity of the case, the Court finds that 89.7 hours were reasonably expended. The reasonable attorney's fees pursuant to the lodestar for Robein is $8,885.00. The Court further finds that the Johnson factor's do not require an adjustment.V. Costs
The defendants also seek to recover costs in the amount of $1,168.52. Rule 54(d) of the Federal Rules of Civil Procedure directs a district court to award costs to a prevailing party. Expenditures for those categories of expenses listed in 28 U.S.C. § 1920 may be recovered only if they are allowed by that section. See Cooper Liquor v. Adolph Coors Co., 684 F.2d 1087, 1101 (5th Cir. 1982).
This total reflects the billing judgment of the defendants. Prior to the exercise of billing judgment the total costs sought were $3,373.48. After objection by the plaintiff, the defendants agreed to exclude the costs of appeal in which the appellate court ordered that each party would pay its own costs which according to the defendants total $1,287.80.
Rule 54(d) provides:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed to the prevailing party unless the court directs otherwise. . . .
Fed.R.Civ.P. 54(d).
Section 1920 provides that:
A judge or clerk of any court of the United States may tax as costs the following:
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
Items proposed by winning parties as costs should always be given careful scrutiny. See Fanner v. Arabian American Oil Co., 379 U.S. 227, 235 (1964).
The defendants seek to recover $857.22 in costs for "copy charge," "Westlaw research," and "parking." The corresponding entries with these descriptions are vague. They do not provide information regarding the item copied or the relation to the case. Therefore, these costs are excluded from recovery. The reasonable costs which are sufficiently documented and subject to recovery total $311.30.
December 1998, ($3.30); January 1999 ($.75); June 1999 ($13.20); September 1999 ($2.85); October 1999 ($152.85); November 1999 ($2.25); December 1999 ($83.10); January 2000 ($189.75); February 2000 ($172.50).
January 2000 ($221.67).
October 1999 ($15.00).
IV. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED for the reasons assigned herein that the defendants' Motion for Attorney's Fees (doc# 52) be GRANTED and that the defendants be awarded attorney's fees and costs in the amount of $9,196.30.
The reasonable attorney's fee, subject to the lodestar downward adjustment, plus the reasonable costs.