Opinion
Civil Action No: 99-3714 SECTION: "D" (2)
December 19, 2001
MINUTE ENTRY
Before the court is the issue of attorney's fees, which has been briefed by the parties. Having reviewed the memoranda of counsel and the applicable law, the court now rules.
The Civil Rights Act of 1964 provides that a "prevailing party" in a suit brought under Title VII is entitled to recover "reasonable" attorney's fees. 42 U.S.C. § 2000e-5 (k). In this matter, Nicole Dufresne, prevailed on her claims of sexual harassment and constructive discharge, and she was awarded $62,500 in compensatory damages (by a jury) and $20,330 in back pay (by the court).
Plaintiff now seeks attorney's fees in the total amount of $65,542, which is a 10% enhancement of the lodestar amount of $59,675 which Plaintiff has calculated based on an hourly rate of $225 for attorney William McGoey and an hourly rate of $100 for attorney Derek Mercadel. Defendant opposes the amount of attorney's fees claimed by Plaintiff, and attaches to its opposition memorandum the transcript of Mr. McGoey's deposition which was taken to traverse the amount of attorney' fees claimed.
The lodestar approach (multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate) is the centerpiece of attorney's fees awards. In reviewing the attorneys' Interim Statement (Plaintiff's Exhibit 1), the court finds that in this litigation, Mr. McGoey reasonably expended 238 hours, and his associate attorney, Derek Mercadel, reasonably expended 5.9 hours. While this was a contingency case, the attorneys' Interim Statement also reflects that Mr. McGoey's effective rate was $191.40 per hour, and Mr. Mercadel's effective rate was $100 per hour. In her memorandum, Plaintiff suggests that the court increase Mr. McGoey's rate to $225 per hour.
While the Interim Statement reflects a total of 239 hours expended by Mr. McGoey, Mr. McGoey admitted in his deposition that the "Telephone Conference with Berins' Paralegal" entered on August 2, 2001 should have been 0.10 hours instead of 1.1 hours.
Mr. McGoey explained that in this case, he originally assigned an hourly rate of $175/hour, as this was the hourly rate for all of his contingency fee files. In December 2000, he changed the hourly rate for all of his contingency fee files to $200/hour. Such assignments of fees (as in all of his contingency fee cases) was for record keeping purposes. (McGoey Dep., pp. 78-79; and McGoey Affidavit).
The court may adjust the lodestar calculation by a consideration of the Johnson factors: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service 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; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
In applying the Johnson factors here, the court first finds that this employment discrimination case posed a level of average difficulty which Plaintiff's counsel (well-experienced in employment law) was clearly capable of handling. Further, discovery was not complicated, and Plaintiff's attorneys spent a total of 1.6 hours interviewing a handful of witnesses (other than Plaintiff herself). Further, while Plaintiff's counsel attended a few depositions in this matter, these depositions were noticed by Defendant. Obviously, given the time involved to prosecute this case, Plaintiff's counsel was not precluded from other employment while handling this case. And the nature of this case was no more unique than any other sexual harassment claims, thus not making it less desirable for Plaintiff's seasoned employment law counsel.
Next, Mr. McGoey testified that in his employment law practice, the majority of his clients are contingency fee clients. (McGoey Affidavit, Plaintiff's Exhibit 3). In this matter, Plaintiff entered into a contingency arrangement whereby she agreed to pay attorney's fees in the amount of " 40% of the gross settlement or gross award if won or settled after six months but before appeal . . . or the amount of attorneys' fees awarded by the court, if any, whichever amount is greater." (Contingency Contract of Employment, Plaintiff's Exhibit 2).
Mr. McGoey acknowledged that the present balance of compensatory damages, back pay and judicial interest is approximately $100,000, and if attorney's fees were paid strictly under the contingency contract, attorney's fees would amount to approximately $40,000 (40% of $100,000). (McGoey Dep., pp. 58-59).
When Mr. McGoey (who has been recognized as a leading attorney in employment law) does charge clients in his employment law practice, he charges hourly rates of $140, $150, $175 and $200 depending on such factors as the ability to pay and the prospects for repeat business. As a general rule, he charges $150/hour for employment cases, and the most he was ever awarded in a sex discrimination case was $150/hour about three years ago. (McGoey Dep., pp. 70, 72, 85). He has only charged the $200/hour rate once, and that was in an ERISA case. Id.
Mr. McGoey also testified that he charges as low as $85/hour for the RTA, but he has no control over this rate and this type of work is ongoing versus a one-time deal. (McGoey Dep., p. 68).
With regard to Mr. McGoey's associate, Derek Mercadel, Plaintiff seeks attorney's fees calculated at $100/hour. Mr McGoey testified that Mr. Mercadel graduated from law school in 1999. He was not experienced when he joined the firm, and he had not been a member of Law Review, the Order of the Coif, or Moot Court. (McGoey Dep., p. 86-87).
The court concludes that a reasonable rate for Mr. McGoey is the customary rate of $150/hour that he charges billing clients, and a reasonable rate for Mr. Mercadel is $75/hour given the level of his experience and expertise in relation to Mr. McGoey's. No enhancement of these rates is justified, because the issues involved in this case were not novel, and while the performance of Plaintiff's counsel was commendable, the quality of representation is adequately reflected in the reasonable hourly rates awarded. Abrams v. Baylor College of Medicine, 805 F.2d 528, 536-37 (5th Cir. 1986).
Accordingly, the court GRANTS Plaintiff attorneys' fees in the amount of $35,700 (238 hours x $150/hour) for Mr. McGoey, and $442.50 (5.9 hours x $75/hour) for Mr. Mercadel, for a total amount of $36,142.50 in attorneys' fees.