Opinion
No. 00-3423, SECTION: "R" (2)
October 4, 2002
ORDER AND REASONS
Before the Court is plaintiffs' motion to assess attorneys' fees and costs. For the following reasons, the Court orders that plaintiffs are entitled to recover from defendant fees and costs in the amount of $38,260.85. In addition, plaintiffs are entitled to past-judgment interest as provided in this Order.
I. Background
Plaintiffs Debbie Forrest and Holly Smith worked as security officers for defendant Dynamic Security, Inc., an Alabama company that provides security services for a variety of clients. Plaintiffs were terminated by Dynamic, and on November 22, 2000, plaintiffs filed a complaint bringing claims for failure to promote, retaliation, hostile work environment and intentional infliction of emotional distress. Plaintiffs' claims for failure to promote and intentional infliction of emotional distress were dismissed on summary judgment. The Court conducted a two-day bench trial on the remaining claims. On the hostile work environment claims, the Court granted judgment as a matter of law in favor of defendant. Plaintiffs prevailed on the retaliation claims. On May 31, 2002, the Court entered judgment in favor of Smith in the amount of $8,172.00. of this total, $672.00 consists of back pay, the remainder compensatory damages. On the same day, the Court entered judgment in favor of Forrest in the amount of $882.00, consisting entirely of back pay. Defendant moved to amend the judgment pursuant to Federal Rules of Civil Procedure 52 and 59. This motion was denied.
In its judgment entered on May 31, 2002, the Court noted that plaintiffs, as prevailing parties, are entitled to attorneys' fees. The Court also ordered that plaintiffs submit a calculation of costs for a determination of amounts due under 28 U.S.C. § 1920. Accordingly, plaintiffs filed a Motion to Assess Fees and Costs on June 21, 2002. Defendant's request for an opportunity to conduct discovery on plaintiffs' motion was granted. Discovery is now complete, and both parties have, in light of this discovery, filed briefs with the Court.
lII. Discussion
A. Costs Pursuant to 28 U.S.C. § 1920
Plaintiffs seek to recover costs pursuant to 28 U.S.C. § 1920 in the amount of $1,758.10. This total is comprised of costs expended on fees of the clerk, fees for service of summons and subpoena, fees of the court reporter f or transcripts necessarily obtained f or use in the case, fees for witnesses, and fees for copies of papers necessarily obtained for use in the case. The most significant of these costs is a $1,216.10 fee for transcripts of the depositions of Debbie Forrest and Holly Ruffin necessarily obtained for use in the case.
In Mota v. The University of Texas Houston Health Science Center, 261, F.3d 512, 529 (5th Cir. 2001), the Fifth Circuit clearly stated that the costs sought by plaintiffs are recoverable under 28 U.S.C. § 1920. The Fifth Circuit has also held that the party seeking costs bears the burden of supporting its request with evidence documenting the costs incurred and proof, when applicable, that a certain item was "necessarily obtained for use in the case." Fogleman v. ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991). This is a factual determination to be made by the district court and the Fifth Circuit accords district courts "great latitude" in making this determination. Id. at 285. Plaintiffs provided evidence documenting each fee included in their calculation of costs. (Pl.'s Mot. to Assess Fees and Costs.) Although plaintiffs did not specifically indicate why the transcripts were "necessarily obtained" for use in the case, the Court nevertheless finds that obtaining these transcripts was, in fact, necessary. The depositions of Debbie Forrest and Holly Ruffin played important roles in this litigation. Indeed, defendant has not challenged plaintiffs' request to recover these costs. Nor has defendant challenged any other cost included in plaintiffs' request. Accordingly, the Court finds that plaintiffs are entitled to recover costs in the amount of $1,758.10.
B. Fees Pursuant to 42 U.S.C. § 1988
Plaintiffs, as "prevailing parties" in a Title VII claim for employment discrimination, are entitled to recover reasonable attorneys' fees under 42 U.S.C. § 1988. 42 U.S.C. § 1988; Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 661 (5th Cir. 2002). In Hensley v. Eckerhart, 461 U.S. 424, 433 34, 103 S.Ct. 1933, 1939 (1983), the Supreme Court approved the "lodestar" method of computing reasonable attorneys' fees. The lodestar is calculated by multiplying a reasonable number of hours expended by a reasonable hourly rate. Green, 284 F.3d at 661; Rutherford v. Harris County, Texas, 197 F.3d 173, 192 (5th Cir. 1999). The lodestar may then be adjusted upward or downward if the Johnson factors warrant an adjustment. Green, 284 F.3d at 661; Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson factors are: (1) the time and labor required to litigate the matter; (2) the novelty and complexity 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 imposed time constraints; (8) the amount involved and results obtained; (9) the experience, reputation, and ability of the attorney; (10) whether the case was "undesirable;" (11) the type of attorney-client relationship and whether the relationship was longstanding; and (12) awards made in similar cases. Green, 284 F.3d at 661. "To the extent that the Johnson factors are subsumed in the lodestar, they should not be reconsidered" in determining whether to adjust the lodestar. Id.; Shipes v. Trinity Industries, 987 F.2d 311, 320 (5th Cir. 1993). Moreover, the lodestar "is presumptively reasonable and should be modified only in exceptional cases." Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Whereas the district court's determination of the lodestar is reviewed for clear error, an upward or downward departure from the lodestar based on the Johnson factors is reviewed for an abuse of discretion. Green, 284 F.3d at 661.
1. Calculation of the Lodestar
The Court will begin its calculation of the lodestar by determining reasonable hourly rates. The rate is determined by looking to "the prevailing market rates in the relevant legal community." Id. at 662. Plaintiffs contend that a reasonable hourly fee for James A. Dukes is $175 to $200. Mr. Dukes was admitted to practice in 1977, and although he has considerable trial experience his experience with Title VII discrimination cases is limited. Plaintiffs contend that a reasonable hourly fee for Donald Juneau, an attorney with extensive Title VII experience dating to 1967, is $275.
In response to defendant's request for production, Mr. Dukes indicated that this was the first Title VII case that he has handled. (Def.'s Opp. to Pl.'s Mot. to Assess Fees and Costs, Ex. 3, at 4.)
Contrary to defendant's assertions, it has long been held that the rate may incorporate the cost of paralegal time. Volk v. Gonzalez, 262 F.3d 528, 535 (5th Cir. 2001)
Based on the Court's knowledge of the relevant legal community and a review of the reasonable hourly rates awarded in similar cases, the Court finds that the hourly rates asserted by plaintiffs are not reasonable. In Green, the Fifth Circuit found that an award of $175 per hour to an attorney with 14 years of experience in employment law was not clearly erroneous. Green, 284 F.3d 662. Earlier this year, it was determined that a reasonable hourly rate for an attorney with a total of eight years in practice, but only three years in employment and civil rights law, was $150. Jimenez v. Paw-Paw's Camper City, Inc., 2002 WL 257691, *22 (E.D.La. 2002). In 2001, this Court found $150 to be a reasonable hourly rate for an attorney with 14 years experience, though an unknown number of years experience practicing civil rights law. Oyefodun v. City of New Orleans, 2001 WL 775574, *9 (E.D.La. 2001) (citing Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D.La. 1997)). Attorneys with significant civil rights experience, however, typically receive awards greater than $150 per hour. An attorney with 25 years experience in civil rights law has been awarded $185 per hour, Lalla v. City of New Orleans, 161 F. Supp.2d 686, 699 (E.D.La. 2001), and an attorney with 24 years experience in civil rights law has been awarded $195. Yousuf v. UHS of De La Ronde, Inc., 110 F. Supp.2d 546, 569 (E.D.La. 1999). The Court therefore concludes that a reasonable hourly fee for James A. Dukes, given his limited experience in civil rights law, is $150. A reasonable fee for Donald Juneau, an attorney with more than 30 years experience practicing civil rights law, is $185 per hour.
In order to calculate the lodestar, the Court must now make a determination of the number of hours reasonably expended. Plaintiffs bear the burden of establishing the reasonableness of the number of hours expended on this lawsuit. Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987). The Supreme Court has noted that attorneys seeking fees should "make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434, 103 S.Ct. at 1939 40. If an attorney fails to exercise this "billing judgment," then a court may reduce the number of hours awarded, either by percentage or on a line-by-line basis. Green, 284 F.3d at 662. Among the factors courts consider in determining a reasonable number of hours is the results obtained. Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). Indeed, the Supreme Court has held that adjustments to an award of attorneys' fees based on the results obtained are "presumably fully reflected in the lodestar amount." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098 (1986).
The results that plaintiffs obtained include whether plaintiffs were successful on each of their claims, as well as plaintiffs' recovery on successful claims. At the same time, attorneys' fees need not "be commensurate with the actual amount of dollars awarded to the plaintiff." Green, 284 F.3d at 663. Rather, attorneys for the prevailing party should be awarded fees for all time reasonably expended on a matter. Id. Accordingly, even when a plaintiff recovered roughly $400, this Court has awarded attorneys' fees in the amount of $25,050. Oyefodun, 2001 WL 775574. Defendants assert that plaintiffs should not be compensated for hours expended on unsuccessful claims. The Supreme Court, however, has held that where plaintiffs' claims for relief "involve a common core of facts," a court should not view the lawsuit as a series of discrete claims but should instead "focus on the significance of the overall relief obtained by the plaintiff." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940.
Here, plaintiffs have produced detailed, contemporaneous records indicating that James Dukes expended 293.50 hours on this matter. of these hours, 280 were expended prior to May 31, 2002, the date on which the Court entered judgment against defendant. The remaining 13.50 hours were expended after the Court entered judgment. Plaintiffs also produced records that, though not contemporaneous, sufficiently indicate that Donald Juneau expended 73.75 hours on this matter. of these hours, 59 were expended prior to May 31, 2002, with the remaining 14.75 hours expended after entry of judgment. The information provided is sufficient because the Court can clearly determine the work that Mr. Juneau accomplished, the date on which he performed the work, and the precise number of hours that the work required.
Defendants assert that plaintiffs are not entitled to recover any fees for the work of Donald Juneau, as Juneau's request for fees is not supported by contemporaneous records. This argument is without merit, for the Fifth Circuit has held that when an attorney fails to provide contemporaneous records, the court may use its discretion to determine the reasonable number of hours expended. Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 2001); Louisiana Power Light Company v. Kellstrom, 50 F.3d 319, 331 (5th Cir. 1995). Notwithstanding Local Rule 54.2, which provides that a party desiring to be awarded fees "shall submit to the court a contemporaneous time report," this Court has consistently followed the Fifth Circuit's approach in Von Clark. See Louisiana Power Light Company, 50 F.3d at 331; Oyefodun, 2001 WL 7755574, at *9 Defendant's assertion that attorneys' fees should be denied because plaintiffs rejected an FRCP 68 which was substantially greater than the amount awarded by the Court is also without merit as unsupported by case law.
The Court has reviewed the billing records of James Dukes and Donald Juneau and finds that the work performed and the hours claimed are reasonable. Nevertheless, the Court finds that plaintiffs, in failing to adjust their records to account for the results obtained, have failed to exercise "billing judgment." Plaintiffs' claims for failure to promote and intentional infliction of emotional distress were dismissed on summary judgment. At trial, plaintiffs recovered a combined $8,844, prevailing on claims for retaliation while losing on claims for hostile work environment. Given the results obtained, the Court finds that it is reasonable to reduce the hours on a percentage basis. Green, 284 F.3d at 662. Specifically, the 280 hours expended by Mr. Dukes prior to entry of judgment, as well as the 59 hours expended by Mr. Juneau prior to entry of judgment, should be reduced by 40%. The hours expended after entry of judgment, on the other hand, should not be reduced on the grounds that plaintiffs obtained partial success on work completed before entry of judgment. After reducing the appropriate hours by 40%, the Court calculates that Mr. Dukes reasonably expended 168 hours prior to May 31, 2002, and 13.50 hours after, for a total of 181.50 hours. Mr. Juneau reasonably expended 35.40 hours prior to May 31, 2002, and 14.75 hours after, for a total of 50.15 hours. At an hourly rate for Mr. Dukes of $150 and a rate for Mr. Juneau of $185, the lodestar equals $36,502.75.
2. Adjustment of the Lodestar
The Court may in its discretion adjust the lodestar up or down based on the 12 Johnson factors. The Court may not, however, double count those Johnson factors that were already considered in the calculation of the lodestar. Heidtman, 171 F.3d at 1043. Further, the lodestar is presumptively reasonable and should only be adjusted in exceptional cases. Watkins, 7 F.3d at 457.
In calculating the lodestar, the Court already considered the attorneys' customary fee, the experience and reputation of the attorneys, the time and labor required, and the amount involved and the results obtained. The Fifth Circuit has also noted that the novelty and difficulty of the issues and the skill required to properly perform the legal services are incorporated into the calculation of the lodestar. Shipes, 987 F.2d 320. So, too, is the preclusion of other employment by the attorney. Heidtman, 171 F.3d at 1043. Last, the Supreme Court has barred the use of the Johnson factor pertaining to whether the fee was fixed or contingent. City of Burlington v. Dague, 505 U.S. 557, 566-67, 112 S.Ct. 2638, 2643 (1992)
Thus, the Johnson factors that remain — the only factors that could support an upward or downward departure from the lodestar — are whether the client or case imposed time constraints, whether the case was "undesirable," the type of attorney-client relationship, and awards in similar cases. Neither party has urged the Court to depart from the lodestar based on any of these factors. Although the Fifth Circuit recognizes that sexual harrassment cases are undesirable because they are "extremely difficult to bring and to win," Green, 284 F.3d at 663, the Court does not find this lawsuit to be an "exceptional" case that warrants departure from the lodestar. Therefore, the Court finds that plaintiffs are entitled to attorneys' fees in the amount of $36,502.75.
C. Post-Judgment Interest
In its Order and Reasons of May 2, 2002, the Court stated that plaintiffs are entitled to post-judgment interest under 28 U.S.C. § 1961(a), which provides that "[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a) (2002). In Louisiana Power Light Company v. Kellstrom, 50 F.3d 319, 331 (5th Cir. 1995), the Fifth Circuit considered whether post-judgment interest on fees and costs runs from the date of judgment on the merits or whether it instead runs from the date of a supplemental judgment verifying the fee award. The Fifth Circuit concluded that post-judgment interest runs from the former. Id. at 332.
Here, the Court entered judgment on the merits on May 31, 2002. By this date, plaintiffs had incurred costs of $1,758.10 and attorneys' fees totaling $31,749, for a total of $33,507.10. Therefore, post-judgment interest on fees and costs begins to run from May 31, 2002, on the amount of $33,507.10. Plaintiffs also incurred fees totaling $4,753.75 after May 31, 2002. The Court finds that interest on these fees should not run from May 31, 2002, for the simple reason that such fees had not yet been expended. Interest on these fees therefore runs from the date of entry of judgment for these fees.
The Court determined that Mr. Dukes reasonably expended 168 hours prior to May 31, 2002, and that Mr. Juneau reasonably expended 35.40 hours. At the reasonable hourly rates of $150 and $185, respectively, attorneys' fees prior to May 31, 2002, totaled $31,749.
III. Conclusion
For the reasons stated above, the Court finds that plaintiffs are entitled to recover from defendant costs in the amount of $1,758.10 and fees in the amount of $36,502.75, for a total of $38,260.85. Plaintiffs are entitled to post-judgment interest accrued on $33,507.10 since judgment was entered on May 31, 2002. Interest on the $4,753.75 in fees incurred after May 31, 2002, runs from the date on which judgment for these fees is entered.