Opinion
CIVIL ACTION NO: 01-3912, SECTION: "J"(1)
September 5, 2003
ORDER AND REASONS
Before the Court are the following motions filed by plaintiff: Motion for New Trial (Rec. Doc. 38); and Motion for Attorney's Fees and Costs. Rec. Doc. 37. Defendant opposes both motions. The motions, set for hearing on September 3, 2003, are before the Court on briefs without oral argument. The Court considers each in turn.
Defendant's Request for Oral Argument was previously denied.
I. Motion for New Trial
Background
In this case, plaintiff sued defendant arguing that defendant had unlawfully demoted him and subsequently terminated his employment in violation of the Americans With Disabilities Act. The matter was tried to a jury on July 14 and 15, 2003, and the jury returned a verdict in favor of the defendant on the unlawful demotion claim, and in favor of the plaintiff on the retaliation claim. The jury concluded that the defendant's transfer from his waiter's position to a less physically demanding office position was not unlawful, because plaintiff was not capable of performing the essential functions of a waiter with or without reasonable accommodation. However, the jury also found that defendant's subsequent decision to terminate plaintiff's employment was made in retaliation for plaintiff's filing of an EEOC complaint under the Americans with Disabilities Act.In connection with the retaliation verdict, the jury awarded of $640.00 for back pay, and $1,714.00 for front pay. At the same time, the jury made no award for general damages, either past or future. Plaintiff has now moved for new trial, arguing that the verdict was inconsistent, because special damages were found but no general damages awarded; he also argues that the jury failed to follow the Court's instructions, since it left blank the spaces where it should have indicated an award amount for general damages (as opposed to writing in zeroes). Finally, plaintiff argues that the front and back pay awards are too low to be justified by the evidence.
Discussion
Under the Seventh Amendment, courts are required to make a "concerted effort to reconcile apparent inconsistencies in answers to special verdicts if at all possible." Alverez v. J. Ray McDermott, 674 F.2d 1037, 1040 (5th Cir. 1982); see also, United States v. $9,041,598.68, 163 F.3d 238, 249 (5th Cir. 1998). Courts should only set aside a seemingly inconsistent verdict if it "finds that there is no view of the case which makes the jury's answers consistent . . ."Id. at 1040, quoting Griffin v. Matherne, 471 F.2d 911,:915 (5th Cir. 1973). Thus, in determining whether a seemingly inconsistent verdict actually is inconsistent, courts "view the evidence in the light most favorable to upholding the jury's decision by a finding of consistency," based upon all of the circumstances surrounding the case. Ellis v. Weasler Engineering Inc., 258 F.3d 326, 343 (5th Cir. 2001) (citations omitted).In this case, the jury was charged that "if you find defendant is liable for discrimination as set forth above, plaintiff is entitled to compensatory damages for back pay, front pay, and any emotional pain and mental anguish he has suffered because of defendant's conduct." While plaintiff argues that this construction requires a' general damages award if there is a front pay and back pay award, the Court disagrees. The instruction states that if discrimination is found, plaintiff is entitled to any emotional pain and mental anguish he has suffered; this clearly leaves room for a finding by the jury that they might not find any emotional pain and mental anguish. While the Court agrees that it is unusual to suffer compensatory damages and no general damages, it is not impossible. Because the jury found that plaintiff's demotion was not unlawful, he is not entitled to any general damages occasioned by his shift from waiter to office worker and the concomitant pay cut. And, as defendant points out in its opposition, in this case, on the very date of his termination, plaintiff went to the Office of Employment Security and to the Social Security Administration and applied for unemployment and social security benefits, both of which were granted. He also obtained another job thereafter. On this record, the Court finds that it is not irreconcilable for the jury to have found that defendant suffered compensatory damages but not general damages. Finally, the jury's decision to leave blank the spaces reserved for amounts to be awarded for general damages is not ambiguous — even though the jury did not write in zeroes, it is clear that they intended to make no general damages award. Accordingly, the Court finds that the damages verdict is not inconsistent.
With respect to plaintiff's argument that the front pay and back pay awards are too low in view of the evidence at trial, the Court makes two observations. First, because front pay and back pay awards are equitable in nature, the jury's verdict is considered advisory. See, West v. Nabors Drilling USA, Inc., 300 F.3d 379, 394-95 (5th Cir. 2003); see also. Wilson v. Belmont Homes. Inc., 970 F.2d 53, 55-56 (5th Cir. 1992) (no right to have a jury determine back pay because it is an equitable remedy under Title VII); Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1988) (front pay is equitable remedy like back pay under Title VII). In this case, the Court accepted the jury's advisory verdict, because it was consistent with the evidence presented. While the verdict was not a large one, as set forth above, it reflects the fact that plaintiff's reassignment to a lower paying position was not unlawful, and that plaintiff immediately began receiving unemployment and social security benefits, and was re-employed thereafter.
Second, it follows from the above that, since the Court accepted the jury's advisory verdict in this case, the Court did not consider the verdict against the great weight of the evidence. Trial courts "should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence." Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 269 (5th Cir. 1998) (internal quotations omitted). Accordingly, no new trial is warranted in this matter, because the jury's denial of general damages was not inconsistent with the compensatory damages award, and the Court adopted the jury's advisory verdict on back and front pay because it conformed with the evidence.
II. Motion for Attorney's Fees and Costs
Background
Plaintiff's counsel has. moved for attorney's fees, litigation expenses, and costs pursuant to 42 U.S.C. § 12205, claiming 119.3 hours of legal services at a rate of $125.00 per hour. He has also filed a bill of costs in the amount of $533.42.Defendant opposes the motion, arguing that plaintiff is not entitled to fees because he is not a prevailing party for purposes of the ADA, and because of plaintiff's counsel's omissions in following court procedure. Defendant also argues that plaintiff has not provided, any affidavit to support the $125 rate requested or in support of the accuracy of his timesheets, and that plaintiff's time claimed is excessive.
Discussion Prevailing party
Title 42, section 12205 of the United States Code provides that a court, in its discretion, may award a prevailing party a reasonable attorney's fee in a case brought under the ADA. Case law interpreting other federal fee-shifting statutes, such as 42 U.S.C. § 1988, provides guidance in interpreting the fee-shifting provision of the ADA in the case at bar. No Barrier. Inc. v. Brinker's Chili Texas. Inc., 262 F.3d 496, 498 (5th Cir. 2001).
"[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 572-73 (1992) (citations omitted). A plaintiff prevails "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." 506 U.S. at 111-112, 113 S.Ct. at 573. Moreover, even a plaintiff who wins only nominal damages is a prevailing party under § 1988. Id. at 506 U.S. 112, 113 S.Ct. 573.
In this case, plaintiff sued defendant alleging, inter alia, that defendant had unlawfully terminated him in retaliation for filing an EEOC claim under the ADA. The jury found for plaintiff on this point, and returned its advisory verdict recommending an award based on its calculation of plaintiff's actual damages (i.e., loss of front and back pay). This award constitutes actual relief on the merits on plaintiff's claim, and materially alters the legal relationship of the plaintiff and defendant (they are now judgment creditor and judgment debtor, respectively). Accordingly, plaintiff is a "prevailing party" for purposes of 42 U.S.C. § 12205, and the Court in its discretion may award attorney's fees.
The "lodestar" method
The Fifth Circuit has adopted the "lodestar" method for calculating attorney's fees. See Fender v. Zapata Partnership, Ltd., 12 F.3d 480, 487 (5th Cir. 1994); Heidtman v. County of El Paso, 171 F.3d 1038, 1042-43 (5th Cir. 1999). The "lodestar" is calculated by multiplying the number of compensable hours reasonably expended by a rate that is considered appropriate in the community. Shipes v. Trinity Industries, 987 F.2d 311, 319-20 (5th Cir. 1993).
In calculating the number of compensable hours, courts consider whether the total number of hours claimed is reasonable based on the nature and extent of the legal services rendered. Hensley v. Eckerhart, 103 S.Ct. 1933, 1939-40. Excessive or duplicative time is not compensable. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). In determining a reasonable hourly rate, courts look to the prevailing community standards for attorneys of similar experience in similar cases. Shipes, 987 F.2d at 319. Blum v. Stenson, 465 U.S. 886, 892-96, 104 S.Ct. 1541, 1545-47 (1984). At all times, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise `billing judgment' with respect to hours worked and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims."Hensley, 103 S.Ct. at 1941. Finally, once the lodestar has been determined, the "district court may then adjust the lodestar upward or downward depending on the respective weights of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
The Court has reviewed the hourly time records submitted by plaintiff, which reflects 119.3 hours expended over two years in preparing the case for trial and reducing it to a jury verdict, and finds that they are not excessive and do not reflect duplicative entries. Further, movant herein seeks $125 which has been found to be a reasonable rate for a non-lead attorney. See, Police Association of New Orleans v. City of New Orleans, 1995 WL 608470, *2 (E.D. La. Oct. 16, 1995) (Reasonable rate for non-lead attorney was between $100 and $125 per hour);Green v. The Administrators of the Tulane Educational Fund, 284 F.3d 642, 662 (5th Cir. 2002) (affirming rate of $110 per hour for first-year associate based on Magistrate Judge's finding that $100-$130 per hour appropriate for non-lead attorneys.). Thus, the Court concludes that $125 per hour is not unreasonable for Mr. Moeller's services. Calculating the lodestar under the principles outlined above, 119.3 hours multiplied by $125 per hour yields a fee award of $.14,912.50.
The Johnson Factors
Defendant argues for a reduction in plaintiff's fee award based upon the factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 717-19 (5th Cir. 1974). Specifically, defendant cites plaintiff's `failure to adhere to certain local practices, failure to incorporate part of defendant's inserts in the pre-trial order and the like as grounds for reducing or denying fees. While application of the Johnson factors is the appropriate method to adjust the lodestar downward when that is warranted, the lodestar may not be adjusted due to any Johnson factor if that factor has already been taken into consideration in determining the lodestar. Shipes, 987 F.2d at 319-20.
The Johnson factors are: (1) the time and labor required for the litigation; (2) the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other work to litigate the case; (5) the attorney's customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints'; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case was "undesirable;" (11) the attorney-client relationship and whether that relationship was long-standing; and (12) awards made in similar cases. Johnson, 488 F.2d at 717-19.
In this case, the Court agrees the plaintiff's counsel fell short, on occasion, of providing the highest level of representation possible. Rather, plaintiff's counsel conducted himself in the manner of a moderately experienced associate not well-versed in federal practice. However, while the issues regarding plaintiff's counsel might otherwise justify a reduction based upon the ninth Johnson factor (the experience and ability of the attorney), the Court finds that this factor has already been accounted for in calculating the lodestar, because the hourly rate employed is one normally reserved for less experienced, non-lead attorneys. Accordingly, the Court finds that no further adjustment to the lodestar is required based upon the Johnson factors in this case. The Court also observes that the failure to submit proper documentation for a fee application is not fatal to the fee applicant's request. No Barriers. Inc., 262 F.3d at 500.
Finally, with respect to costs, plaintiff has requested $533.42 in costs, and defendant has not traversed this amount. Therefore;
IT IS ORDERED that plaintiff's Motion for Attorney's Fees and Costs (Rec. Doc. 37) should be and is hereby GRANTED, and plaintiff is awarded $14,912.50 in attorney's fees and costs in the amount of $533.42;
IT IS FURTHER ORDERED that plaintiff's Motion for New Trial(Rec. Doc. 38) should be and is hereby DENIED.