Opinion
Case No. 1:95cv237-D-D.
Filed Date: January 17, 1999.
OPINION
Presently before the court is the Plaintiff's motion for an award of interim attorney's fees. After considering the motion, the court finds that it should be granted. The court shall award the Plaintiff $53,613.91 in interim attorney's fees. The Defendants Tishomingo County, Johnny Nunley, Larry Wilson, Steve Grisham and Deborah Grisham shall be jointly and severally liable for this award.
Relevant Background
The Plaintiff filed an action against the former Sheriff of Tishomingo County, two former Deputies of the County, two alleged agents of the County, and the County itself, under 28 U.S.C. § 1983 for various alleged constitutional violations. The former Sheriff, one of the former deputies, and the two alleged agents did not answer the complaint, and default judgments were entered against them. A jury trial was held on the claims against the County and the other former Deputy, Benny Parrish. Judgment as a matter of law was entered for Benny Parrish as to the Plaintiff's section 1983 claim against him, but a supplemental state-law claim against Mr. Parrish was considered by the jury. The only section 1983 claim which went to the jury was the one against the County. The jury found for the Plaintiff and assessed the County compensatory damages in the amount of $500,000. As for the state-law claim against Mr. Parrish, the jury found for the Plaintiff and assessed Mr. Parrish $771.90 in compensatory damages and $15,000 in punitive damages. The court awarded the Plaintiff $1,320,020 against the four Defendants who defaulted.
The court assessed damages as follows: $80,000 compensatory, $1,000,000 punitive against the former Sheriff; $40,000 compensatory, $200,000 punitive against the former Deputy Larry Wilson; $10 compensatory against Steve Grisham; and $10 compensatory against Deborah Grisham.
The County and Mr. Parrish each filed post-trial motions. The County moved for judgment as a matter of law, new trial, or remittitur. Mr. Parrish moved for judgment as a matter of law or remittitur. The court denied all post-trial motions except the County's motion for remittitur. The court remitted the $500,000 award for compensatory damages to $100,000 and allowed the Plaintiff to accept the remittitur or take a new trial against the County only as to damages. The Plaintiff refused the remittitur, so a new trial against the County on compensatory damages has been scheduled.
Incidentally, in reducing the award of $500,000 compensatory damages against the County, the court noted that the Plaintiff's proof established minimal special damages. It appeared to the court that the jury confused the elements of compensatory damages with those more appropriately reserved for an award of punitive damages. In any event, the award of $500,000 in compensatory damages was clearly excessive considering the proof in this case. After all, much of the Plaintiff's injury consisted of property damage by Mr. Parrish, for which the County is not liable.
Discussion
The Plaintiff seeks attorney's fees pursuant to 42 U.S.C. § 1988. Section 1988 provides in relevant part,
In any action or proceeding to enforce a provision of [section 1983,] . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . . 42 U.S.C. § 1988. "The purpose of § 1988 is to ensure `effective access to the judicial process' for persons with civil rights grievances. Accordingly, a prevailing plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40, 48 (1983) (citations omitted).
A plaintiff must be a "prevailing party" to recover an attorney's fee under § 1988. The standard for making this threshold determination has been framed in various ways. A typical formulation is that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." This is a generous formulation . . . . Hensley, 461 U.S. at 433 (citations omitted).
Here, there is no dispute that the Plaintiff prevailed at trial. However, the Plaintiff suggests that he might be asking for attorney's fees prematurely because his favorable rulings might be overturned on appeal. (Plaintiff's Brief, p. 12). It does not appear from the case law that the mere chance of reversal on appeal makes a motion for attorney's fees premature. However, after the Plaintiff offered this suggestion, a development occurred which did raise a question as to whether the Plaintiff's concern is well-placed. That development was the remittitur of the Plaintiff's compensatory damages award against the County. That is, a jury found for the Plaintiff under section 1983 and awarded him $500,000 compensatory damages against the County. The court then remitted that award to $100,000 and allowed the Plaintiff to choose between accepting the remittitur and proceeding with a new trial on damages only. The Plaintiff refused the remittitur, so a new trial on damages has been scheduled. Since this damages issue has now resurfaced, a question arises as to whether an award of attorney's fees would be premature at this time.
Also believing that attorney's fees may be premature at this time, the Plaintiff specifically asked the court to award an "interim fee and allow the Plaintiff to supplement the fee request should . . . an appeal be taken by the Defendant. . . ." (Plaintiff's Brief, p. 12). On the topic of interim attorney's fees awards, the United States Supreme Court has explained as follows:
Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. For only in that event has there been a determination of the "substantial rights of the parties," which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney.
Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S. Ct. 1987, 1989, 64 L. Ed. 2d 670 (1980). Clearly, the Plaintiff has prevailed on the merits of at least some of his claims. Therefore, the Plaintiff is entitled to interim attorneys fees. Of course, the Plaintiff is free to seek further fees for work which follows that which he claims in the present motion. See James v. Stockham Valves and Fittings Co., 559 F.2d 310, 359 (5 th Cir. 1977) ("[I]nterim fees . . . will of course be subtracted from the sum finally awarded for attorney's fees for the full course of the litigation."). The court expresses no opinion as to whether the Plaintiff may file a motion for attorney's fees with the United States Court of Appeals for the Fifth Circuit, or whether he must file another motion with this court.
Primarily the Fifth Circuit remands motions for attorney's fees. However, in at least one instance the Fifth Circuit has ruled on such a motion. See Taylor v. Ouachita Parish School Bd., 648 F.2d 959, 972 (5th Cir. Unit A June 11, 1981). Discussing this case and two other Fifth Circuit cases, the Third Circuit has explained that courts of appeals are split on the issue of whether a petition under section 1988 for appellate attorney's fees may be brought in the court of appeals as an original matter. Compare Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988) (petition may be brought in the court of appeals) and Reel v. Arkansas Dep't of Correction, 672 F.2d 693, 699 (8th Cir. 1982) (same) with Smith v. Detroit Bd. of Educ., 728 F.2d 359 (6th Cir. 1984) (per curiam) (petition cannot be brought in the court of appeals), Suzuki v. Yuen, 678 F.2d 761, 762 (9th Cir. 1982) (same) and Souza v. Southworth, 564 F.2d 609, 613-14 (1st Cir. 1977) (same) with Iqbal v. Golf Course Superintendents Ass'n of Am., 900 F.2d 227, 229-30 (10th Cir. 1990) (petition properly brought in court of appeals but remanded to district court for calculation of amount), Finch v. City of Vernon, 877 F.2d 1497, 1508 (11th Cir. 1989) (same) and McManama v. Lukhard, 616 F.2d 727, 730 (4th Cir. 1980) (per curiam) (same). The United States Court of Appeals for the Fifth Circuit has decided cases standing for each of the above views. Compare Taylor v. Ouachita Parish School Bd., 648 F.2d 959, 972 (5th Cir. Unit A 1981) (entertaining petition for appellate fees) with Crane v. Texas, 766 F.2d 193, 195 (5th Cir.) (per curiam) (refusing to entertain petition for appellate fees and remanding to district court), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (1985) with Morrow v. Dillard, 580 F.2d 1284, 1296-1300 (5th Cir. 1978) (petition brought in court of appeals but remanded to district court for calculation of amount). Yaron v. Township of Northampton, 963 F.2d 33, 36 (3d Cir. 1992).
Whether the Fee is Reasonable
The Supreme Court has provided that "[t]he 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. The product of these two factors — number of hours and the hourly rate — is called the "lodestar." League of United Latin Am. Citizens (LULAC) v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1232 (5 th Cir. 1997); Von Clark v. Butler, 916 F.2d 255, 258 (5 th Cir. 1990). The fee applicant bears the burden of proving the reasonableness of the number of hours claimed. Hensley, 461 U.S. at 437; Cooper v. Pentecost, 77 F.3d 829, 832 (5 th Cir. 1996). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433. The district court may also reduce the award where the hours are "excessive, redundant, or otherwise unnecessary." Id. at 434. The fee applicant also bears the burden of proving the reasonableness of the rate claimed. Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891, 900 n. 11 (1984). In Blum, the Supreme Court explained,
To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to — for convenience — as the prevailing market rate.
Blum, 465 U.S. at 895 n. 11.
Once the lodestar is calculated, the district court must address its reasonableness as a whole. Hensley, 461 U.S. at 434 ("The product of reasonable hours times a reasonable rate does not end the enquiry."); Longden v. Sunderman, 979 F.2d 1095, 1099 (5 th Cir. 1992). In doing so, the district court must consider the twelve factors which the United States Court of Appeals for the Fifth Circuit set out in Johnson v. Georgia Highway Express, Inc. Alberti v. Klevenhagen, 896 F.2d 927, 929-30 (5 th Cir.), vacated in part on other gounds, 903 F.2d 352 (5 th Cir. 1990); Leroy v. City of Houston, 831 F.2d 576, 583 n. 11 (5 th Cir. 1987), cert. denied, 486 U.S. 1008, 108 S. Ct. 1735, 100 L. Ed. 2d 199 (1988). These factors are
(1) the time and labor required;
(2) the novelty and difficulty of the questions involved;
(3) the skill required to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to the acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) the 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 the length of the professional relationship with the client;
(12) awards in similar cases.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5 th Cir. 1974). After considering these factors, the district court may adjust the lodestar upward or downward. LULAC, 119 F.3d at 1232; see also Walker v. United States Dep't of Hous. and Urban Dev., 99 F.3d 761, 771-73 (5 th Cir. 1996) (describing limited circumstances in which adjustment to lodestar is appropriate). Of course, although the district court must consider each factor, the court need not act upon any of them. Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 330-31 (5 th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 173, 133 L. Ed. 2d 113 (1995); see Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 854 (10 th Cir. 1993) ("[R]arely are all the Johnson factors applicable. . . .").
The Lodestar
Mr. Cooke alleges that he worked 371.6 hours on the case at bar. Supporting his claim, Mr. Cooke submits a statement listing the days he has worked on this case, brief descriptions of each day's work, and the number of hours he worked per day. After carefully reviewing the statement, the court concludes that the documentation of hours is inadequate. As the Supreme Court warned in Hensley, "[w]here the documentation of hours is inadequate, the district court may reduce the award accordingly." 461 U.S. at 433. Here, the entries contain vague language. For example, Mr. Cooke frequently describes his work as "OC w/client" or "Research re. [some document]." See LULAC, 119 F.3d at 1233 (stating reduction for vagueness proper where fee applicant merely submits entry for "research and review of cases"). These entries are too general to provide the court with a clear picture of the work Mr. Cooke performed.
Furthermore, some of the entries are excessive or redundant. As the Supreme Court stated in Hensley, district courts may reduce attorney's fees awards where the hours claimed are "excessive, redundant, or otherwise unnecessary." 461 U.S. at 434. Recently, the Fifth Circuit emphasized that district courts must reduce attorney's fees awards where attorneys do not exercise billing judgment, i.e., exclude "unproductive, excessive, or redundant hours." Walker, 99 F.3d at 770. Here, Mr. Cooke failed to exercise billing judgment in several respects. For example, both Mr. Cooke and his legal assistant logged a number of hours for the dictation and preparation of the same letters. Also, Mr. Cooke logged over thirty hours for "Research re. Jury instructions; dictation." The court finds that time excessive. After making deductions for vague, redundant or excessive entries, the court finds that a reasonable number of hours to employ in determining Mr. Cooke's lodestar is 320.
The hourly rate Mr. Cooke asserts is $150. In reviewing this rate, the court notes that Mr. Cooke graduated from law school in 1970 and has tried numerous cases in state and federal courts. However, Mr. Cooke does not clarify what experience he has specifically in civil rights litigation. Regarding the prevailing market rate — the hourly rate in Mr. Cooke's community for similar services by attorneys of comparable skill, experience and reputation — Mr. Cooke cites a number of recent opinions by this court and the Fifth Circuit wherein attorneys were awarded fees based on hourly rates ranging from $150 per hour to $180 per hour. Considering Mr. Cooke's trial experience, as well as the cases he cites, the court finds that the rate Mr. Cooke asserts, $150 per hour, is a reasonable rate for his services.
Therefore, Mr. Cooke's lodestar is the product of 320 hours at $150.00 per hour. This calculation yields a total of $48,000.00. The court shall add to this figure compensation for Mr. Cooke's legal assistant in the amount of $5,000.00, which figure the court reaches after deducting entries which were clearly vague, excessive or redundant. The court shall also add to the lodestar the amount which the Plaintiff claims in expenses, $613.91, a figure which the court deems reasonable. Adding these three figures yields a total of $53,613.91.
Reasonableness of the Lodestar
The court will now evaluate the lodestar in light of the twelve Johnson factors. In doing so, the court notes that it considered several of these factors when it calculated the lodestar itself. For example, the court evaluated facets of the first factor, the time and labor required, when it evaluated the number of hours Mr. Cooke worked. Therefore, in evaluating the lodestar, the court will not double-count these factors. See Walker, 99 F.3d at 771; Shipes v. Trinity Indus., 987 F.2d 311, 320 (5 th Cir.), cert. denied, 510 U.S. 991, 114 S. Ct. 548, 126 L. Ed. 2d 450 (1993). That said, the court makes the following observations:
(1) The time and labor required — Mr. Cooke has devoted a substantial number of hours to this case. However, no enhancement is required because the lodestar inherently includes this fact. Furthermore, the number of years Mr. Cooke has worked on this case, over four, is not unusually large. This factor favors no adjustment.
(2) The novelty and difficulty of the questions involved — This case presented no questions which were particularly novel or difficult for a civil rights action. Indeed, the claims against four of the defendants were resolved by default judgments. This factor favors a downward adjustment.
(3) The skill required to perform the legal service properly — No special skill was required, save the necessity of being able to navigate a civil rights case through the federal court system. The court has already evaluated that aspect of this factor when it determined the rate of Mr. Cooke's services. This factor favors no adjustment.
(4) The preclusion of other employment by the attorney due to the acceptance of the case — Mr. Cooke states that he knows of no employment which was precluded by his acceptance of this case. However, he suggests that some residents of Tishomingo County might have declined to bring their cases to him because they disagreed with his representation of a plaintiff suing the County. The court will evaluate this issue under another Johnson factor. This factor favors no adjustment.
(5) The customary fee — This factor favors no adjustment.
(6) Whether the fee is fixed or contingent — This factor favors no adjustment.
(7) The time limitations imposed by the client or the circumstances — There were no particular time limitations. This factor favors no adjustment.
(8) The amount involved and the results obtained — The only section 1983 claim which went to the jury was the one against the County. As to that claim, the jury found for the Plaintiff and assessed the County compensatory damages in the amount of $500,000, which amount the court subsequently remitted to $100,000. The other Defendant at the jury trial, Mr. Parrish, successfully moved for judgment as a matter of law as to the section 1983 claim against him. However, the jury did find for the Plaintiff as to a state-law claim against Mr. Parrish. Furthermore, default judgments were entered against the other four Defendants, and the court awarded the Plaintiff $1,320,020 against them. Considering the Plaintiff's success in this suit, the court finds that this factor favors an upward adjustment. In so finding, the court notes that the eighth factor cannot serve as an independent basis for increasing a fee award because it is "presumably fully reflected in the lodestar amount. . . ." Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 3098, 92 L. Ed. 2d 439 (1986). The court also notes that the judgment as a matter of law on the Plaintiff's 1983 claim against Mr. Parrish raises a question as to the propriety of awarding fees for work on that unsuccessful claim.
[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988. . . . [However,] [w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.
Hensley, 461 U.S. at 440-41. Considering the fact that the Plaintiff succeeded on at least one claim against each Defendant, as well as the fact that the state-law claim against Mr. Parrish was based on the same facts on which the 1983 claim was based, the court shall not reduce the award to reflect Mr. Parrish's judgment as a matter of law. However, in assessing attorney's fees, the court will charge the fees jointly and severally against all of the Defendants except Mr. Parrish.
(9) The experience, reputation, and ability of the attorneys — Mr. Cooke has practiced law approximately twenty-eight years and has broad litigation experience. Although Mr. Cooke presents no proof as to his reputation, the court takes judicial notice that Mr. Cooke enjoys the reputation of a conscientious, competent attorney. As to his ability, the court finds that Mr. Cooke adequately handled most every issue pertinent to this trial, as the court would expect of any attorney representing a client in a civil rights case. This factor favors no adjustment.
(10) The "undesirability" of the case — This case was not desirable. To be sure, representing a plaintiff whose rights have been trampled is a worthy assignment. However, the Plaintiff here sued the County and several of its former law enforcement officers. Suits against such defendants tend to aggravate many citizens of the community. This factor favors an upward adjustment.
(11) The nature and the length of the professional relationship with the client — Mr. Cooke indicates that his relationship with the Plaintiff originated with this case and is limited to this case. Mr. Cooke adds that he counseled the Plaintiff through an emotionally difficult time. Such assistance is admirable, but in this case it does not require an enhancement to the lodestar. This factor favors no adjustment.
(12) Awards in similar cases — The Plaintiff cites a number of similar cases, but the court has already considered them in determining the reasonableness of Mr. Cooke's hourly rate. Neither these cases nor any others of which the court is aware demonstrate that the award in this case should be enhanced or reduced. This factor favors no adjustment.
Having carefully considered each factor, this court concludes that no adjustment to the lodestar — either upward or downward — is necessary. The case was undesirable and the Plaintiff's success was substantial, but the issues were clear and liability was relatively obvious.
Conclusion
The court shall award the Plaintiff $53,613.91 in interim attorney's fees and shall assess this award jointly and severally against all of the Defendants except Mr. Parrish. A separate order in accordance with this opinion shall issue this day.ORDER GRANTING MOTION FOR INTERIM ATTORNEY'S FEES
Pursuant to an opinion issued today, it is hereby ORDERED that
the Plaintiff's "Motion for Attorney's Fees, Interim Fee Award, and Time to Supplement Motion for Attorney's Fees" is GRANTED; and
the Defendants Tishomingo County, Johnny Nunley, Larry Wilson, Steve Grisham and Deborah Grisham are jointly and severally liable to the Plaintiff for an award of interim attorney's fees in the amount of $53,613.91.
SO ORDERED.