Opinion
Civil Action No. 3:95CV154-B-A
September 27, 2002
MEMORANDUM OPINION
This cause comes before the Court upon the plaintiff's motion for attorneys' fees and expenses. Upon due consideration of the motion, the responses thereto, the parties' memoranda, and the exhibits, the Court is ready to rule.
Procedural History
This cause was originally filed in 1995. The plaintiff, Yvonne Vance, brought this Title VII gender discrimination case against a number of bank defendants which have ultimately consolidated as Union Planters Bank, N.A., or have been dismissed. The jury returned a verdict in favor of the plaintiff on August 19, 1998. In a judgment dated May 17, 2000, the Fifth Circuit affirmed this Court's judgment as to liability but vacated the damages award and remanded for further proceedings to determine the amount of the applicable damage cap pursuant to 42 U.S.C. § 1981a(b)(3). Vance v. Union Planters Corp., 209 F.3d 438, 447 (5th Cir. 2000). This Court determined on remand that the amount of total damages allowed under Title VII was $330,000. The defendant appealed, and the Fifth Circuit reversed and reduced the award to $130,000. Vance v. Union Planters Corp., 279 F.3d 295 (5th Cir. 2002) (Vance II). The plaintiff's petition for rehearing was denied on February 13, 2002. The plaintiff subsequently petitioned the United States Supreme Court for writ of certiorari, and that petition is currently pending.
I.
The plaintiff was represented in this matter by the Rayburn Law Firm and by Waide Associates, P.A., and has requested fees in the amount of $359,855.05, which represents 1649.35 hours of work by seven attorneys, three legal assistants, and a paralegal billed at rates of $60.00 to $200.00 per hour, plus a fifty percent enhancement. The plaintiff also seeks a combined total of $18,749.99 in expenses. The requested total amounts are broken down as follows:
Rayburn Law Firm Tommy Rayburn 543.70 work hours at $200 per hour 27.80 travel hours at $100 per hour Paige Rayburn 21.00 work hours at $150 per hour Victoria Smith 369.70 work hours at $125 per hour 11.00 travel hours at $62.50 per hour Legal Assistants 384.45 work hours at $65 per hour 11.00 travel hours at $32.50 per hour Expenses $18,003.37 Waide Associates Jim Waide 245.10 work hours at $200 per hour 23.30 travel hours at $100 per hour Martin Crump 3.00 work hours at $125 per hour Victor Fleitas 1.6 work hours at $150 per hour David Chandler .70 work hours at $150 per hour Paralegal 7.00 work hours at 60 per hour Expenses $746.62 The attorneys have submitted the requisite affidavits discussing the applicability of the factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). In addition, the plaintiff has presented exhibits outlining the hours expended and the tasks performed as well as affidavits from local attorneys who opined that hourly rates between $115 to $200 are reasonable for prosecuting this type of lawsuit and that lead counsel, Honorable Tommy Rayburn and Honorable Jim Waide, should be compensated at the maximum allowable rate.The defendant responds with a number of objections. Generally, it maintains that a large number of counsel's hours were excessive, redundant, or unnecessary or that the descriptions of the work performed are too vague. In addition, the defendant objects to counsel's hourly rate requests. The defendant further argues that the plaintiff is not entitled to an enhancement but, to the contrary, that a seventy-five percent reduction is appropriate and that the defendant should not be required to pay fees accrued after May 17, 2000, the date the Fifth Circuit remanded for a determination of the appropriate damage cap.
II.
The determination of reasonable attorneys' fees involves a well-established process. First, the court calculates a "lodestar" fee by multiplying a reasonable number of hours worked by a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). The court may then accept the lodestar or adjust the amount upward or downward, depending on the circumstances of the case and the Johnson factors. Green v. Administrators of Tulane Educational Fund, 284 F.3d 642, 661 (5th Cir. 2002). 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 counsel; (10) whether the case was "undesirable"; (11) the nature and length of the professional relationship with the client; and (12) awards made in similar cases. Johnson, 488 F.2d at 717-19. Johnson factors which are subsumed in the lodestar should not be reconsidered in determining whether an adjustment to the lodestar is appropriate. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998).
The Lodestar Amount
In determining whether the fee requested by an attorney is reasonable for figuring the lodestar amount, the burden of proof is on the attorney to produce evidence, along with his or her affidavit, which establishes the reasonable, comparable rate in the community for the level of skill, experience, and reputation of the attorney. Blum, 465 U.S. 886, 895 at n. 11 (1984). In support of the requested hourly rates, the plaintiff has submitted the credentials of her attorneys, a list of cases to demonstrate their level of skill and expertise, affidavits from other area attorneys opining as to reasonable hourly rates, and the Laffey Matrix, which provides data on attorney fees in relation to experience levels for the District of Columbia.
Before addressing the reasonableness of the hourly rates, the Court must first address the issue of "lead" attorneys in this case. The plaintiff has designated both Rayburn and Waide as lead attorneys. The Court finds that the designation of two lead attorneys should not have been necessary in the present case. See In re Sealed Case, 890 F.2d 451, 455 (D.C. Cir. 1989) (stating that the employment of two lead attorneys is ordinarily subject to some objection). There was nothing particularly unusual, either factually or legally, in this straightforward Title VII employment discrimination action. Further, it is clear from the record that the true "lead attorney" was Rayburn, who asserts that he worked a total of 571.5 hours compared to the 268.4 hours which Waide asserts. Rayburn worked more than twice the hours listed by Waide in this case. The Court, therefore, designates Rayburn as the lead attorney.
As to the hourly rate, the plaintiff has asked the Court to award a rate of $200 per hour to her two most experienced attorneys and lower rates for counsel with less experience. The defendant objects that this request is excessive and does not reflect the prevailing market rate in northern Mississippi. This Court agrees. The Court looks to recent decisions in this district and to the affidavits submitted by the parties and finds that the prevailing hourly rate for a lead attorney in a civil rights case is $150 to $175 per hour. Considering the affidavits and other evidence submitted by the plaintiff on behalf of her attorneys, the Court finds that a $175 hourly rate is reasonable and awards that rate to Rayburn, the lead attorney. Waide will receive $150 per hour. All other attorneys will receive a rate of $115 per hour. Travel expenses will be compensated at half of the attorney's regular fees. Shirley v. Chrysler First, Inc., 763 F. Supp. 856 (N.D.Miss. 1991).
The Court is aware of at least one case in this district in which the lead attorney was awarded an hourly rate of $200. The case, however, was not a civil rights action but was a matter remanded for improper removal and absence of complete diversity and is, therefore, distinguished from the case at bar. See Brown v. Ascent Assurance, Inc., 191 F. Supp.2d 729 (N.D.Miss. 2002). Further, one incident of a $200 fee award is not sufficient to make that fee the "prevailing market rate."
To calculate the lodestar, the Court must next examine the reasonableness of the work hours submitted by the plaintiff. On January 10, 2002, the Fifth Circuit held that Union Planters Bank of Northeast Mississippi (UPBNE) was the entity which employed Vance. This Court had previously concluded on remand that Sunburst Bank, which employed over 500 persons, was the relevant employer for purposes of counting the number of employees for application of the Title VII damage cap. Since UPBNE employed only 140 persons, the Fifth Circuit ordered that the judgment be reduced from $330,000 to $130,000. The defendant now argues that the plaintiff is not entitled to attorneys' fees and costs from May 17, 2000, the date of remand, forward. This Court agrees and will discount all hours expended beyond that date.
It is well-established in this circuit that attorneys' fees are appropriate for both trial and appellate work. See, e.g., Morrow v. Dillard, 580 F.2d 1284, 1300-01 (5th Cir. 1978) (holding that a prevailing civil rights plaintiff is entitled to trial and appellate fees). Recovery, however, is only allowed for time spent on successful claims and for time spent on other issues if that time contributed to the ultimate success of the case. Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253 (5th Cir. 1990); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1940 (1983).
The sole issue on remand and in Vance II was the identity and size of Vance's employer and, thus, the amount of judgment. The $330,000 judgment entered by this Court was ultimately reduced to $130,000. The plaintiff was unsuccessful in all litigation past May 17, 2000, and is, therefore, not entitled to attorneys' fees for that work. The plaintiff argues that a ruling on the issue of her success is premature at this time, as she has petitioned the United States Supreme Court for writ of certiorari. Should the Supreme Court see fit to grant the plaintiff's writ and subsequently reverse the Fifth Circuit's decision, this Court will reconsider its ruling.
Based on the foregoing analysis, the lodestar calculation appears as follows:
The Court will not award fees for the legal assistants and paralegal involved in this case for reasons discussed below.
The plaintiff actually submitted a total of 369.7 work hours for Smith; however, this Court's calculation of the itemized hours submitted reveal a sum of 365.7.
Reduction or Enhancement
The defendant requests a seventy-five percent reduction in total fees and costs incurred prior to remand relevant to discovery related to Union Planters Corporation (UPC), United Southern Bank (USB), and Sunburst. The defendant argues that "the sole purpose of the evidence and testimony produced with respect to UPC, USB, and Sunburst was to demonstrate the existence of a single integrated enterprise or involvement in the discriminatory decision by entities other than UPBNE, thereby deepening the pocket from which plaintiff could recover." The defendant asserts that since the plaintiff's integrated enterprise argument failed, the attorneys' fee award should be reduced to reflect that failure with respect to UPC, USB, and Sunburst. The Court is not persuaded. It cannot be said with certainty that the work performed with regard to these entities related solely to the integrated enterprise issue and was not in any way related to the plaintiff's ultimate success on the liability issue. The Court, therefore, declines the defendant's request.The plaintiff seeks a fifty percent enhancement based on her assertion that the success in the litigation was exceptional. She cites Johnson factors 1, 5, 8, and 9 as the crucial criteria to consider when determining whether an enhancement is warranted. Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990) (stating that a court should pay "special heed" to Johnson criteria numbers 1, 5, 8 and 9). These factors are (1) the time and labor required; (5) the customary fee; (8) the amount involved and results obtained; and (9) the experience, reputation, and ability of the attorneys. The plaintiff also asks the Court to give significant consideration to the tenth factor, the "undesirability" of the case. The Court has considered these factors in its calculation of the lodestar. "The district court must be careful not to `double count' a Johnson factor already considered in calculating the lodestar when it determines the necessary adjustments" for enhancement or reduction. Id. at 258. The Court finds that the plaintiff is not entitled to an enhancement and will address each of the Johnson factors below.
The plaintiff also asserts that she is entitled to an enhancement because of the considerable delay in this case. The Court is aware of the lengthiness of this litigation but does not find that the delay warrants an upward adjustment to the lodestar in this case.
Johnson Factors
1. Time and Labor Required
This amount is included in the calculation above. The calculation incorporates hourly rates and time according to what was reasonable for the lodestar amount. The time expended by Rayburn's legal assistants is deducted primarily because all but .30 hours of this work was performed after May 17, 2000. The Court does not see fit to award fees for the remaining .30 hours. The Court also finds it reasonable to deduct the paralegal hours submitted by Waide. An attorney's regular hourly rate is intended to compensate the attorney for the work he or she personally performs and for the work product of the attorney, i.e., the work performed by secretaries, messengers, librarians, janitors and "others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit." Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (1989). Further, the Court finds that the paralegal hours were not reasonably expended as they were redundant or unnecessary. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939.
2. The Novelty and Difficulty of the Questions
While this case originally involved a number of entities and was document-intensive, the questions involved were not novel or difficult. This was a straightforward Title VII employment discrimination action. There was nothing factually or legally unusual or unique about this case. The case was not difficult particularly in light of the fact that the firms themselves claim and filed affidavits stating that they have extensive civil rights litigation experience and a positive reputation in the field of civil rights and employment discrimination.
3. The Skill Required to Properly Litigate the Issues
As stated above, the attorneys involved have the skills required to effectively litigate a civil rights case. Arguably, a civil rights case requires an above-average skill level, as it involves federal and constitutional issues. This fact, however, requires no upward adjustment of the lodestar amount. Sanders v. Nunley, No. 1:95CV237-D-D, 1999 WL 33537095, at *4 (N.D.Miss. Jan. 17, 1999).
4. The Preclusion of Other Employment by the Attorney Due to Acceptance of the Case The attorneys admit that no employment was precluded based on their acceptance of this case.
5. The Customary Fee
This factor was addressed above when this Court determined the appropriate lodestar amount. The Court finds that the prevailing fee for lead counsel in a civil rights case in this district is $150 to $175 per hour. Upon consideration of the affidavits and exhibits submitted by the parties, the Court finds that a reasonable hourly rate for the lead attorney in this case is $175. A reasonable fee for Waide is $150 per hour, and a reasonable fee for all other attorneys involved in this case is $115 per hour.
6. Whether the Fee is Fixed or Contingent
The fee in this case is contingent. However, as very reasonable fees have already been established by this Court in the lodestar amount, this factor does not justify an adjustment.
7. The Time Limitations Imposed by the Client or the Circumstances
The attorneys admit that there were no time limitations in this case.
8. The Amount Involved and the Results Obtained
The plaintiff asserts that this factor justifies an enhancement because Vance obtained the fullest possible recovery. This Court discussed above the plaintiff's lack of success in the litigation past the date of remand and has reduced the lodestar accordingly.
9. The Experience, Reputation, and Ability of the Attorneys
The attorneys involved in this case are all highly trained with exceptional resumes and glowing reputations. They adequately handled each issue of the case and have significant trial experience. This factor, however, has already been examined in the Court's calculation of the lodestar amount for such experienced and skilled attorneys. This factor, therefore, does not warrant an adjustment of the lodestar amount.
10. The "Undesirability" of this Case
The attorneys admit this case was desirable with a single exception. Rayburn asserts that the case destroyed his banking relationship with Union Planters. Even if these allegations are well-founded, the Court is not persuaded that this factor justifies an enhancement of the lodestar.
11. The Nature and Length of the Professional Relationship with the Client
The relationship between Vance and the attorneys in this case appears to have arisen from this case alone though the relationship has allegedly grown to include other matters not involving this litigation. This factor calls for neither an upward or downward adjustment of the lodestar.
12. Awards in Similar Cases
The Court has examined various awards in other civil rights cases and finds that the fees awarded to the attorneys in the case at bar are on par with those awards. See, e.g., Herdahl v. Pontotoc County School District, 964 F. Supp. 1113 (N.D.Miss. 1997) (awarding total fees of $134,393.55 in § 1983 school prayer case); Fryar v. City of Ripley, 3:97CV225-B-A, 1999 WL 33537169, at *2 (N.D.Miss. Sept. 20, 1999) (finding $150 per hour to be reasonable hourly rate for lead attorney in Title VII case).
Expenses
The defendant objects to a number of the plaintiff's itemized expenses. The objectionable expenses are the $2500 fee charged by expert witness Dr. Joe Ed Morris, witness fees and mileage in the amount of $295.80 for witnesses who did not testify at trial, $960.30 for the cost of private process servers, costs of computer research and telephone calls in the amount of $1795.05, overnight delivery charges in the amount of $366.27, lodging expenses on June 24, 1997, in the amount of $218.54, meal expenses on June 27, 1997 for $17.62, $6.00 for two issues of the Memphis Business Journal, lodging and meal expenses in the amount of $269.06 incurred by Vance at oral argument in the Fifth Circuit, the plaintiff's mileage in the amount of $1,021.48, and Rayburn Law Firm's expenses after May 17, 2000, the date of remand, in the amount of $970.60. The Court finds that these objections should indeed be sustained and, therefore, reduces the expense totals accordingly. The total deduction to expenses is $8420.72. The plaintiff has asked that she and her attorneys be reimbursed for expenses totaling $18,749.99. After the appropriate deduction, the Court awards $10,329.27 for expenses.
Conclusion
After careful consideration of the matter, the Court finds that the plaintiff is entitled to recover from the defendant attorneys' fees in the sum of $161,398.25 and expenses in the sum of $10,329.27 for a total award of $171,727.52. This result is consistent with the lodestar calculation and the twelve Johnson factors.
A separate order in accord with this opinion shall issue this day.
ORDER
Pursuant to the memorandum opinion issued contemporaneously herewith, it is ORDERED: That the motion of plaintiff Yvonne E. Vance for attorneys' fees and expenses is GRANTED; and That the plaintiff recover from the defendant attorneys' fees in the amount of $161,398.25 and expenses in the amount of $10,329.27 for a total award of fees and expenses in the sum of $171,727.52.
SO ORDERED.