Opinion
96 C 3539
April 27, 2000
ORDER
Plaintiff Lisa Worth sued the defendants, Robert Tyer and several corporations, for workplace sexual harassment and retaliation pursuant to 42 U.S.C. § 2000 (e-5)(k). On August 24, 1999, a jury returned a verdict in Worth's favor and awarded her $152,500 in damages. The court now addresses: Worth's attorneys' fee petition and Worth's petition for costs. The court also addresses defendants' motion reconsideration of its previous award of costs; motion to amend the judgment or, in the alternative, for a new trial. For the following reasons, Worth's motions are GRANTED and defendants' motions are DENIED.
1. ATTORNEYS' FEES
Title VII provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs . . . 42 U.S.C. § 2000 (e-5)(k). Worth is the prevailing party because she succeeded at trial on significant issue litigation. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983); see Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 872 (7th Cir. 1995); Bigby v. City of Chicago, 927 F.2d 1426, 1429 (7th Cir. 1991). Worth's petition requests $151,073 for attorneys' fees expended for preparing and trying her case. Additionally, Worth seeks attorneys' fees for the preparation of post-trial motions. The court will first address Worth's petition for fees related to the preparation and litigation of this case.
The "most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433, 103 S.Ct. 1939. The result is commonly referred to as the "lodestar." The party seeking the award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). The lodestar amount then can be reduced or increased in consideration of a number of factors based on:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (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; (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.Hensley, 461 U.S. at 441, 103 S.Ct. 1933.
When determining the number of hours reasonably expended in the litigation, the court must ensure that counsel exercised "billing judgment," that is, it must allow only such fees that would normally be billed to a paying client. Id. at 553. In determining the reasonable hourly rate, the court must determine the "market rate" for the services rendered, that being the "rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question." Id. at 555. The burden is on the party seeking fees to establish the market rate. Id. at 554-55. An attorney's affidavit does not meet the burden of establishing that the hourly rate is reasonable. Relevant evidence that would assist the court's decision would include evidence of the amount awarded the attorney in other similar cases. Id. at 557.
The court may also consider the degree of success the plaintiff achieved when awarding attorneys' fees. Id.; Spegon, 175 F.3d at 550-51; Bankston v. State of Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995). Therefore, the court can depart downward from the lodestar where it determines that the plaintiff's level of success warrants it.
A. The Bill Submitted by Worth's Counsel
Worth has submitted billing records and affidavits to support her petition. Generally, these records are specific enough to inform the court how the fees were incurred, and who did the work. Worth's counsel has also satisfactorily shown that the billing rates for the attorneys and paralegals is appropriate. The amount Worth requests for her attorney and paralegal fees is listed as follows:
Michael J. Vint: 305.78 hours at $156 per hour. Total: $47,665.50
Larry S. Kaplan: 163 hours at $275 per hour. Total: $44,825
Nicole Halpern Murphy: 286.3 hours at $126 per hour. Total: $36,115
John R. Zillmer: 95.7 hours at $85 per hour. Total: $8,134.50
Blame Petersen: 69.7 hours at $72 per hour. Total: $5,017
Robert K. Villa: 13.1 hours at $140 per hour. Total: $1,834
Rahul Gupta: 22.6 hours at $75 per hour. Total: $1,695
Anne M. Rodgers: 18.3 hours at $85 per hour. Total: $1,555.50
Michael K. LaPointe: 6.5 hours at $189 per hour. Total: $1,225.50
Tamara S. Dykstra: 9.4 hours at $130 per hour. Total: $1,222
Rose L. Jagust: 5.7 hours at $120 per hour. Total: $684
Christine I. Kirk: 6 hours at $85 per hour. Total: $510
John T. Midgett: 2 hours at $110 per hour. Total: $220
Fred C. Begy, III: .5 hours at $275 per hour. Total: $137.50
Patrick J. Keating: .5 hours at $175 per hour. Total: $87.50
Howard J. Rosenberg: 1 hour at $75 per hour. Total: $75
Jeffery E. Margulis: .3 hours at $150 per hour. Total: $45
Michael J. Frazier: .25 hours at $100 per hour. Total: $25
B. The Court's Determination of the Lodestar
After careful review of Worth's petition, the court has made the following downward adjustments to the number of hours expended by her counsel to arrive at the lodestar:
Michael J. Vint: 248.68 hours at $130. Total: $32,328.40
In the fee petition, Worth's counsel arrives at a rate of $156 per hour for Vint. Apparently, this rate "blends" the rate he received when the case commenced in 1996 and the rate he received after April 1999. There are two problems with this blended rate. First, the billing records do not record any work performed by Vint when his rate increased to $170 per hour in April 1999. Second, while the billing records reflect that Vint earned $130 per hour before April 1999, Vint testifies in his affidavit that his rate was $140. The court elects to use an hourly rate of $130 to calculate Vint's fees as it has relied on the actual billing rates Worth submitted to determine her hourly rates.
Nicole Halpern Murphy: 15.3 hours at $90 per hour and 229.7 hours at $130 per hour. Total: $31,238
Larry S. Kaplan: 108.7 hours at $275. Total: $29,892.50
John R. Zillmer: 90.6 hours at $85 per hour. Total: $7,701
Blame Petersen: 62.9 hours at $72 per hour. Total: $4,528
Anne M. Rodgers: No change. Total: $1,550.50
Michael K. LaPointe: 6.5 hours at $189 per hour. Total: $1,225.50
Tamara S. Dykstra: No change. Total: $1,222
Robert K. Villa: 4.1 hours at $140 per hour. Total: $574
Christine I. Kirk: No change. Total: $510
Rahul Gupta: Awarded 5 hours at $75 per hour. Total: $375
Rose L. Jagust: 2.7 hours at $120. Total: $324
John T. Midgett: No change. Total: $220
Fred C. Begy, III.: No change. Total: $137.50
Patrick J. Keating: No change. Total: $87.50
Jeffery E. Margulis: No change. Total: $45
Michael J. Frazier: No change. Total: $25
Howard J. Rosenberg: Total: $0
The court did not alter the hourly rates of the attorneys or the paralegals. Worth's counsel has adequately supported the rates with their affidavits. Therefore, after calculating the time reasonably expended on this matter, the lodestar comes to $111,983.90. The court arrives at this amount by subtracting entries for time spent researching and preparing a motion for partial summary judgment which was never filed. Additionally, the court reduced the award where it determined the amount counsel requested was excessive. Specifically, the court deducted excessive time from Worth's fee petition for: researching and preparing a defamation claim that was never filed; preparing a motion for sanctions and discovery abuse; reviewing depositions; reviewing and taking inventory of discovery; drafting and revising direct and cross-examinations; reviewing pleadings; drafting jury instructions; drafting the pre-trial order; and drafting a press release after the verdict. The court also deducted time from paralegals who billed for travel to court to set-up visual aids; a summer associate who watched a motion in court; and for time entries that were not specific enough for the court to determine what was done (examples: "review file in preparation of trial," and "other trial preparation of examination").
C. Downward Departure from the Lodestar Amount
In addition to the deductions the court makes to arrive at the lodestar figure, the court has deducted 35% from the lodestar to reflect the measure of success the plaintiff achieved. While the jury returned a verdict in Worth's favor on all the counts before it, the damages the jury awarded reflects a level of success much less than Worth had hoped for. The jury awarded Worth $152,500.00 in compensatory and punitive damages. First, the jury awarded Worth $100,000 ($50,000 in compensatory damages and $50,000 in punitive damages) for the battery count. Second, the jury awarded Worth just $7,500 ($2,500 in compensatory damages and $5,000 in punitive damages) on the Title VII violation for sexual harassment. Finally, the jury verdict awarded Worth $40,000 ($20,000 in compensatory damages and $20,000 in punitive damages) on the count for Title VII violation for retaliatory discharge.
Worth's counsel is not penalized just because they "aimed higher than they hit" at trial. Bankston, 60 F.3d at 1256. Nevertheless, the court awards attorneys' fees that reflect the jury's award in comparison with what Worth sought in her complaint. Ustrak, 851 F.2d at 988. Thus, the court elects to deduct 35% from the lodestar figure. As stated above, the lodestar amount was $111,983.90. After a 35% reduction ($39,194.37), the total award for attorneys' fees (not including post-trial work) is $72,789.53.
D. Fees For Post-Trial Motions
Worth's counsel has also requested an award of fees for the preparation of their fee petition. Additionally, Worth requests fees incurred in connection with other post-trial motions filed by the defendant. In support of these fees, Worth submits an affidavit that requests approximately $4,904.50 to reflect work done in the post-trial phase of this case. However, Worth's counsel has not submitted to the court sufficient documentation to determine how these fees were incurred. Indeed, if the court was to award fees for post-trial work from the billing records before it, the award would total $357.50. If counsel wishes for the court to consider its post-trial motions, it must submit the appropriate billing records by May 22, 2000.
2. COSTS
A. Costs Awarded to Date
On September 24, 1999, the court awarded Worth costs in the amount of $2,527.50 for transcripts she ordered on an expedited basis. Defendants have filed a motion for reconsideration of the award.
1. Expedited Transcripts
Worth's request for compensation for the costs of relied on 28 U.S.C. § 1920 (2), which provides:
A judge . . . may tax as costs the following:
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
Defendants object to the court's award because Worth did not demonstrate the necessity for ordering expedited transcripts.
Each of Worth's requests was reasonable. First, the court's assessment of costs for the expedited order of the trial transcript was necessary. The trial lasted only for a few days. If the transcript was to be useful to Worth's counsel, they needed to request the transcript on an expedited basis so that it could assist them at trial. Second, Worth ordered an expedited transcript of Jodie Rivett's deposition. The deposition transcript was needed on an expedited basis because Worth intended to make use of it in a subsequent deposition with another witness scheduled only a few days later. Therefore, the court refuses to reconsider its award of these costs.
2. Costs for Statutory Witness Fees
The court also awarded Worth costs for payment of statutory witness fees to Lisa Fahrion and Kurt Salems. Defendants ask the court to reconsider its award because, they claim, the witnesses were not necessary.
Fahrion did not testify at trial. Also, both parties knew that her availability at trial was questionable due to a high-risk pregnancy. Defendants contend that these two facts invalidates the justification for awarding Worth the statutory witness fee. Second, defendants argue that Salems (who also did not testify) would have only been a necessary witness if Worth needed to impeach Tyer's credibility. Since neither witness testified, defendants argue that these costs should be reconsidered. The court disagrees.
The presence of the witness in court is not required to justify the award of statutory witness fees. Spanish Action Comm. v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir. 1987). The court determined that Worth subpoenaed the two witnesses in good-faith belief that their testimony would be necessary to prevail at trial. The court will not reconsider its award of the statutory witness fees.
3. Award of Costs for Obtaining Certified Copies of Defendants' Incorporation Status
Finally, defendants object to the courts award of fees for obtaining certified copies of defendants' incorporation status because the copies were never brought into trial. Therefore, defendants' argument goes, they could not have been "necessarily obtained for use" at trial. 28 U.S.C. § 1920 (4). The Seventh Circuit has held that "documents need not be introduced at trial in order for the cost of copying them to be recoverable." M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1410 (7th Cir. 1991). While Worth may not have introduced these documents at trial, the court determined that they were necessary for Worth to have in the preparation of her case. Therefore, the court declines to reconsider the award of these costs.
B. Costs Included With Worth's Fee Petition
In addition to the costs the court has already awarded Worth, she requests compensation for other costs incurred in preparation for trial. Therefore, Worth seeks $9,940.81 in additional costs. The billing records are sufficiently specific for the court to examine the reasonableness of the costs. After careful consideration, the court awards Worth $9,518.58. This reflects a 10% deduction from Westlaw and Lexis costs which the court finds reasonable in light of its finding that Worth's counsel conducted research for claims they later abandoned.
3. Defendants' Motions to Amend the Judgment or Grant a New Trial
A. Motion to Amend the Judgment
As a general matter, Rule 59(e) will not permit a party to merely rehash previously raised arguments. Lewis v. Herman, 783 F. Supp. 1131 (N.D.Ill. 1991). "The only grounds for a Rule 59(e) motion . . . are newly discovered evidence, an intervening change in the controlling law, and manifest error of law." Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). Therefore, the moving party must raise either "newly discovered evidence or a manifest error of law or fact." Caisse Naz'le de Credit Agricole v. CBI Indus. Inc., 90 F.3d 1264, 1269 (7th Cir. 1996); Russell v. Delco Remy Div. of Gen'l Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). Defendants' Rule 59 motion revisits their arguments from the pretrial phase of this case on the application of Title VII to the facts of this case. Defendants' motion falls outside of the scope of Rule 59 and, therefore, is denied.
B. Motion For a New Trial
A court may grant a new trial "if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992); Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir. 2000); Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997). Defendants argue that: (1) the jury award on the battery count was excessive in light of the evidence presented and; (2) the court erred in allowing Lisa Fahrion to testify about an similar incident with Tyer because it was prejudicial.
Defendants do not support their argument that the jury's award on the battery count was excessive. They simply protest that the amount ($100,000) was out of whack with the evidence presented at trial.
A jury's damages award should not be disturbed unless the evidence bears no "rational connection" to the amount. Raybestos Products, Co. v. Younger, 54 F.3d 1234, 1244 (7th Cir. 1995); EEOC v. AIC Sec. Investigations, 55 F.3d 1276, 1285 (7th Cir. 1995). The jury's award was reasonable in light of the evidence presented at trial. Worth demonstrated that she suffered injuries significant enough to warrant the jury's award. The court finds that there is a rational connection between the jury's award and the damages Worth endured.
The defendants also claim that the court erred in permitting Worth to present Fahrion's testimony that she endured sexual harassment from defendant Tyer. In the pre-trial phase, the court determined that this evidence was probative of Tyer's motive and intent. Retaliatory discharge was one of the counts for the jury to consider. Therefore, the court allowed Fahrion's testimony which was offered to discredit Tyer's argument that Worth was discharged for a legitimate business reason.
CONCLUSION
For the reasons stated above, the court awards Worth $72,789.53 for attorneys' fees (excluding post-trial fees) and $9,518.58 in costs. Worth's counsel must file billing records and supporting affidavits for fees related to post-trial work by May 22, 2000. Defendants' motions to reconsider the court's previous award of costs are DENIED. Furthermore, defendants' motions to amend the judgment or, alternatively, for a new trial are DENIED. IT IS SO ORDERED.