Opinion
Civil No. A3-98-134.
September 28, 2001
MEMORANDUM AND ORDER
Pending before the court are several motions which address attorney fees and costs (Doc. #'s 235, 240, and 243). Also pending is a motion by Wayne S. Bjerke to intervene as a plaintiff in the action (Doc. #262). The court will first address the latter motion to identify the interested parties as the court considers the other motions.
1. Motion by Wayne S. Bjerke to Intervene as a Plaintiff (Doc. #262).
Wayne S. Bjerke seeks to intervene in this action on the grounds that he claims an interest in the proceeds of this litigation awarded to his former wife, Debra Bjerke, pursuant to a state court order entered on April 3, 2000 awarding him one-half of any award made to Debra Bjerke. Mr. Bjerke asserts that "he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest." In his complaint for intervention Mr. Bjerke asserts his belief that plaintiff "upon receipt of the proceeds of this lawsuit will keep the proceeds or waste the proceeds before the Intervenor has an opportunity to obtain his rightful share." Defendant Nash Finch takes no position on the motion. Plaintiff Debra Bjerke strenuously objects to the motion, asserting not only that the motion is untimely, but also that Mr. Bjerke's interests are adequately represented by the plaintiff and there is no potential impairment of the same.
Rule 24 of the Federal Rules of Civil Procedure dictates the requirements that must be met for an individual to intervene in an action:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
Fed. R, Civ. P. 24(a)(2).
In order to prevail on his motion to intervene, the intervenor must demonstrate that (1) the motion is timely; (2) the proposed intervenor must claim an interest relating to the property or transaction at issue; (3) the disposition of the action may impair or impede the ability to protect that interest; and (4) the interest is not adequately represented by existing parties. American National Bank and Trust Company of Chicago v. City of Chicago, 865 F.2d 144, 146 (7th Cir. 1989). The type of interest necessary to satisfy the intervention requirement must be "a direct, significant legally protectable interest." Id. (quoting Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir. 1982)).
Plaintiff has cited to the court a case that is factually similar to this case and that clearly supports her position that the interest claimed by the intervenor is not one which was contemplated by Rule 24. See Creative Dimensions in Management, Inc. v. Thomas Group, Inc., 1999 WL 163621 (E.D.Pa. 1999). In Creative Dimensions, plaintiff asserted various state law claims against the defendant. The intervenor's interest stemmed from a marital property agreement whereby plaintiff's principal was required to pay "fifty percent of any net recovery by plaintiff . . ." to the movant. Movant sought to intervene in the action "to protect his property right" and to allay his fears that "his former wife will not pay him." The court in Creative Dimensions denied the motion to intervene, finding that the intervenor's interest in the lawsuit was identical to the plaintiff's and that in such circumstances "there is a strong presumption that representation is adequate." Id. (citations omitted). The court further found that "the possibility that [plaintiff] might withhold or divert the portion of any damage award promised to movant is insufficient to demonstrate an impairment of an interest in the subject of the instant action." Id. (citing American National, 865 F.2d 147-78). The court recognized that if the litigation proceeds are not paid in accordance with the court order, the intervenor would have other remedies available in state court, including an action for breach of contract and a contempt proceeding. Id.
In conformity with the finding in Creative Dimensions, the court finds that the interest of the intervenor in the litigation proceeds is substantially similar to plaintiff's interest, which includes maximization of the award obtained from the defendant, and that intervenor's interest is adequately protected by the existing representation. Therefore, Wayne S. Bjerke's Motion to Intervene as Plaintiff (Doc. #262) is DENIED.
2. Defendant Nash Finch's Motion for Controverted Costs (Doc. # 240).
Defendant Nash Finch seeks costs in the amount of $11,421.99 as the "prevailing party." (Doc. # 240). Nash Finch argues that it is the prevailing party because it prevailed in a substantial part of the litigation, given that it "succeeded in obtaining dismissals or judgments in its favor on four or five claims alleged by plaintiff" and the jury award "was nominal when viewed against the damages claimed by plaintiff in the entire cause of action." Defendant Nash Finch Company's Brief in Support of Motion for Taxation of Disputed Cost, at 4. Plaintiff obviously disagrees with the defendant's characterization of the outcome of the litigation, and rightfully so. It is the court's opinion also that defendant Nash Finch was not the prevailing party in this action. A judgment pursuant to jury verdict was entered in the amount of $31,897.00. The court denied defendant's post trial motion for judgment as a matter of law and granted plaintiff's motion for liquidated damages, resulting in the entry of an amended judgment in favor of the plaintiff and against the defendant in the total amount of $63,794.00. Clearly the plaintiff was victorious on her meritorious claim, and the amount of the award is certainly not "nominal." Therefore, without further ado, defendant's Motion for Controverted Costs (Doc. # 240) is DENIED. The court will now turn its attention to the more difficult task at hand of determining just how victorious plaintiff was and address the amount of the attorney fee award for the victory.
3. Motion for Attorney Fees and Costs (Doc. #235).
The prevailing party is entitled to attorney fees and costs pursuant to the Equal Pay Act. 29 U.S.C. § 216(b). In addition, as the prevailing party, plaintiff is presumptively entitled to an award of costs pursuant to Fed.R.Civ.Proc. 54(d). See Greaser v. State of Missouri, Dep't of Corr., 145 F.3d 979, 985 (8th Cir. 1998). The amount of the award is left to the sound discretion of the trial court, and reversed only upon an abuse of that discretion. Id. See also Uphoff v. Elegant Bath, Co., 176 F.3d 399, 496 (7th Cir. 1999). Plaintiff seeks an award of attorney fees in the amount of $182,069.00 and costs in the amount of $25,753.48.
In Burks v. Siemens Energy Automation, Inc., the Eighth Circuit explained the two part analysis to be undertaken by the court to determine the appropriate award of attorney fees. 215 F.3d 880, 882 (8th Cir. 2000). The first step is to determine the claims on which plaintiff prevailed. Id. The second step is to determine the extent of plaintiff's success on those claims. Id. The court has already determined that plaintiff prevailed on the primary issue asserted, liability on the Equal Pay claim, and in the court's view, plaintiff not only prevailed on this claim, but won soundly. The jury awarded everything plaintiff requested with respect to this claim (after the court pared down the damage claims), and the court granted the plaintiff's motion for liquidated damages. This is the definition of success. Accordingly, it is the court's view that plaintiff is entitled to a substantial attorney fee award for the effort expended on this claim. That said, the court does not agree with the plaintiff that she is entitled to every penny requested.
A. Attorney Fee Award
The court begins this analysis with the assumption that all of the time spent by plaintiff in pursuing the claims in this action was reasonable. Thus, the court is accepting the invoices presented by the plaintiff as a starting point, but is not willing to accept that the reductions voluntarily made by plaintiff are the only time expenditures by the plaintiff on the unsuccessful claims. This is so, given the court's view that there are no means to determine how much time is attributable to any one claim or measure of damages, but that certainly some of the remaining time was so expended. Nor will the court allow recovery for travel time, as evidenced by the time entries for KAJ on 6/01/00 and 6/11/00. Accordingly, 8 hours of travel time at a rate of $140 per hour is reduced from the requested fee total, leaving the amount of $180,949.00. The court finds that approximately one-half of this amount is attributable to establishing discrimination under the Equal Pay Act and awards that amount — $90,474.50. Of the remaining one-half, the court finds that in all likelihood approximately one-third of that time is attributable to plaintiff's unsuccessful claim for front pay, and approximately one-third is attributable to plaintiff's claim for emotional distress. Because plaintiff was unsuccessful on these claims, the remaining one-half of the attorney fee award is reduced to $29,856.59. Therefore, the court awards a total attorney fee in the amount of $120,331.09.
B. Costs
Plaintiff's request for taxation of costs under Rule 54(d) is subsumed by her request for attorney fees and costs under the Equal Pay Act, since Rule 54(d) is more restrictive in scope. Therefore, plaintiff's Motion for Taxation of Disputed Costs (Doc. #243) is MOOT.
Plaintiff's claim for costs includes several items which the court will not, or is otherwise not permitted by case law, to allow. First, the travel expenditures incurred by counsel are not a proper cost to be passed on to the defendant. When this action was commenced plaintiff's counsel was associated with a local law firm and it was there that plaintiff sought advice. Sometime later plaintiff's counsel chose to move to Minneapolis. Plaintiff apparently decided to continue her relationship with lead counsel, rather than be represented by other attorneys at the firm counsel left. Defendant should not now have to bear the cost of those choices. Accordingly, the amount of $6,597.14 shall be subtracted from the amount of costs requested by plaintiff. In addition, although the court is reluctant to rely on outdated and antiquated rationale, the Eighth Circuit Court of Appeals has held that Westlaw research must be excluded from any cost award. See Strandley v. Chilhower R-IV School Dist., 5 F.3d 319, 325 (8th Cir. 1993); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir. 1983) (The binding law of this circuit is that the expense of "computer-based legal research must be factored into the attorneys' hourly rate, hence the cost of the computer time may not be added to the fee award."). Thus, according to the court's calculation the amount of $4,994.72 must also be subtracted from the amount of costs. Excluding the above categories results in costs of $14,161.59. Using the same formula applied to determining the amount of attorney fees, taking into account the claims on which plaintiff was not successful, the court awards total costs to the plaintiff in the amount of $9,417.46.
C. Plaintiff's Supplemental Brief in Support of Motion for Attorney Fees and Costs
As the court was preparing this order it received a request from plaintiff that she be compensated at counsel's current rate for all of the work hours on the case, given the delay in payment of the same. The court recognizes the rationale behind the supplement, but finds that such increase would not be reasonable to pass onto the defendant, given the delay was primarily at the hands of the court. Therefore, plaintiff's request to increase the hourly fee application is DENIED (Doc. #265).
Based on the foregoing, plaintiff's Motion for Attorney Fees and Cost is GRANTED to the following extent: Plaintiff shall recover attorney fees in the amount of $120,331.09 and costs in the amount of $14,161.59.
An amended judgment in conformity with this order shall be entered by the Clerk.