Opinion
Case No. 00-4044-RDR.
February 11, 2005
MEMORANDUM AND ORDER
This matter is presently before the court upon plaintiff's motion for attorney fees, costs and expenses. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
On June 22, 2004, a jury rendered a verdict in favor of plaintiff on her sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The jury found that plaintiff was entitled to damages for lost pay of $80,000 and pain and suffering of $120,000. The defendant has appealed. Plaintiff now seeks attorneys' fees in the amount of $245,541.55 and expenses in the amount of $14,324.63.
I.
A district court may award attorneys' fees to the prevailing party in a Title VII action. 42 U.S.C. § 2000e-5(k); Metz v. Merrill Lynch, Pierce, Fenner Smith, 39 F.3d 1482, 1492 (10th Cir. 1994). "Under the Title VII provision, a prevailing plaintiff `ordinarily is to be awarded attorney's fees in all but special circumstances.'" Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 (1994) (Thomas, J., concurring) (quotingChristianburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978)). Generally, courts apply the same standards in awarding attorneys fees under § 2000e-5(k) as they do in awarding fees under 42 U.S.C. § 1988 — the statute that authorizes an award of attorneys' fees in a variety of civil rights actions. See Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1418 n. 7 (10th Cir. 1997). The proper procedure for determining a reasonable attorney fee is as follows:
To determine a reasonable attorneys fee, the district court must arrive at a "lodestar" figure by multiplying the hours plaintiffs' counsel reasonably spent on the litigation by a reasonable hourly rate. The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998).
A. REASONABLE HOURS
"The district court should take the first step in calculating the lodestar by determining the number of hours reasonably spent by counsel for the party seeking fees." Case, 157 F.3d at 1250. The court must ensure that the party seeking fees has provided meticulous and contemporaneous time records detailing each lawyer for whom compensation is sought and how their time was expended. Id.
The defendant points out several problems with the records provided by plaintiff's counsel. First, the defendant notes that the records fail to identify who completed each noted task. The defendant suggests that "it is impossible to determine the validity of the charges in light of that unknown person's education, training, and experience." Second, the defendant objects to a number of entries as too vague or as inappropriate matters to be billed as counsel time. Third, the defendant contends that six entries that contain "blacked out" information should not be considered by the court. Fourth, the defendant asserts that travel expenses should not be allowed by the court but, if they are, the rates allowed for them should be reduced. Finally, the defendant argues that the time spent by plaintiff's counsel on the interlocutory appeal in this case cannot and should not be considered by this court.
Plaintiff did not file a reply brief on this motion. As a result, the court has no response from the plaintiff on any of the aforementioned issues. Recognizing that the burden of proof on attorney's fees rests with the prevailing party, the court shall weigh into the determination of the appropriate amount of hours expended by plaintiff on this case.
The court agrees with the defendant that plaintiff's request for attorney's fees is deficient in several areas. Specifically, the court does find that the plaintiff has failed to indicate in the records supplied by the law firm of White, Allinder, Graham and Buckley, L.L.C. ("the White firm") who performed what tasks. The absence of this information makes it difficult for the court to award the full payment of hours requested by this firm. The court notes that the records supplied by the law firm of Monsees, Miller, Mayer, Presley and Amick, P.C. ("the Monsees firm"), are not similarly deficient. In its records, the Monsees firm has identified who performed each noted task.
The court also agrees with the defendant that several of the entries noted by the White firm are vague. Again, these entries make it difficult for the court to evaluate the time expended for the work performed. Finally, the court does note that several listed tasks are items that are more properly viewed as office overhead or clerical expenses.
The court is not persuaded by the other arguments made by the defendant concerning the records of the White and Monsees firms. The court does not find that the "blacked out" entries cause any problems in determining the validity or the propriety of the work performed. Moreover, the court shall award fees for the travel time suggested in the records. Based upon a review of the records, the court believes that reductions have already been made for travel time. Finally, the court believes that it can and should award fees for the time spent on the interlocutory appeal in this case. See Brady v. Fort Bend County, 145 F.3d 691, 717 (5th Cir. 1998), cert. denied, 525 U.S. 1105 (1999);Flanagan v. Inland Empire Electrical Workers Pension Plan Trust, 3 F.3d 1246, 1253-64 (9th Cir. 1993); Central States Area Pension Fund v. Central Cartage Co., 992 F.Supp. 980, 983 (N.D.Ill. 1998).
In light of the aforementioned comments, the court shall reduce the fees requested by ten percent. The court believes that such a reduction is appropriate in light of the deficiencies in the records supplied by counsel. Although a reasonable attorney fee is generally determined by applying an hourly rate to the number of hours worked, it is appropriate for the court to make a general adjustment in an attorney fee where the reasons are clear. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000) (no abuse of discretion for reduction of attorney fees by 20% for time spent on claims for which party not entitled to attorney fees); Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983) ("no precise rule or formula" required to determine attorney fees awarded to prevailing party; district court "may attempt to identify specific hours [to eliminate], or it may simply reduce the award").
B. HOURLY RATE
The Tenth Circuit has set forth the following standards to be applied in determining the appropriate hourly rate:
When determining the appropriate rate to apply to the reasonable hours, "the district court should base its hourly rate award on what the evidence shows the market commands for . . . analogous litigation." [Case v. Unified School Dist. No. 233, 157 F.3d 1243] at 1255 [(10th Cir. 1998)]. The party requesting the fees bears "the burden of showing 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." Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (quotation marks and citation omitted). The focus must be on the "prevailing market rate in the relevant community." See id. (quotation marks and citation omitted). "[A] district court abuses its discretion when it ignores the parties' market evidence and sets an attorney's hourly rate using the rates it consistently grant[s]." Case, 157 F.3d at 1255 (quotation marks and citation omitted). The court may not use its own knowledge to establish the appropriate rate unless the evidence of prevailing market rates before the court is inadequate. Id. at 1257; see Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987).United Phosphorus, 205 F.3d at 1234.
Each side has presented the court with affidavits from attorneys who have practiced in Topeka. These affidavits establish a rather wide range of hourly rates for the Topeka community, running from $125 to $300. The court notes Judge Robinson recently awarded a rate of $150.00 an hour to a Topeka attorney who is experienced in employment discrimination litigation. See Leidel v. Ameripride Services, Inc., 332 F.Supp.2d 1206, 1211 n. 18 (D.Kan. 2004) (court is unaware of any case from Topeka where attorney's fees have been granted pursuant to Title VII or comparable statutes at rate of $250 per hour).
The lead attorneys for plaintiff in this case, Gene Graham and Timothy Monsees, have requested an hourly rate of $250.00. Both attorneys have supplied affidavits in which their experience and expertise in the area of employment discrimination law is noted. During the course of this litigation, the court found both attorneys skilled and experienced. The court believes that an hourly rate of $200.00 is appropriate for both of them. This rate reflects their expertise and experience in the Topeka community.
The court has a much more difficult decision in determining the appropriate hourly rate for the other attorneys involved in this litigation. Deborah J. Blakely and Mary Beth Compton ask to be compensated at the rate of $200.00 an hour. The court has nothing before it to indicate their prior experience in employment discrimination cases. The court notes that an affidavit from a Kansas City attorney supplied by plaintiff indicates, without any support, that each of these attorneys should receive $200.00 an hour for her work.
The court is not convinced that a sufficient showing has been made to justify the $200.00 hourly rate for Ms. Blakely or Ms. Compton. Given the present state of the record, the court shall award fees for their work based upon an hourly rate of $125.00. This rate is in general accord with the affidavits supplied by the parties and reflects an appropriate rate for associates.
Finally, the court notes that plaintiff seeks compensation for paralegals at $85.00 an hour and law clerks at $65.00. Once again, the only support for these fees in the record is the affidavit of a Kansas City attorney. The court is not persuaded that this affidavit provides sufficient support for a determination of the rates in Topeka. The court, based upon its own familiarity of the relevant rates in the community, shall allow hourly rates of $75.00 for paralegal work and $50.00 for law clerk work. See Leidel, 332 F.Supp.2d at 1212 (court allows paralegal in Topeka to be compensated at rate of $75.00 per hour).
With the aforementioned adjustments, the court finds that the lodestar amount here is $168,497.77. Once a court has determined the lodestar amount, "[t]here remain other considerations that may lead the district court to adjust the fee award upward or downward." Hensley, 461 U.S. at 434. Neither party seeks a change in the lodestar amount, and the court sees no reason to alter the fee award. Accordingly, the court shall award plaintiff $168,497.77 in attorneys' fees.
II.
In her motion, plaintiff has requested both expenses and costs. There are several problems with the plaintiff's request. First, in her motion, plaintiff seeks expenses and costs in the amount of $14,324.63. In the attachment to the motion, plaintiff details expenses and costs only in the amount of $13,335.21. The court shall focus on the latter amount because there is no support for the additional $989.42. Second, plaintiff seeks both expenses and costs and has failed to differentiate between the two. In order to receive costs under 28 U.S.C. § 1920, plaintiff needs to follow the procedures set forth in D.Kan. 54.1. Fees falling under § 1920 may not be recovered as general out-of-pocket expenses under a statutory fee-shifting statute. West Virginia University Hospital, Inc. v. Casey, 499 U.S. 83, 86 (1991). Plaintiff's request for costs is premature. Thus, the court shall attempt to determine if any of the requests are recoverable as out-of-pocket expenses. Due to the failure of the plaintiff to distinguish costs from expenses, the court has some problem in analyzing the request. The court will simply attempt to do the best it can in considering the request. As stated by Judge Van Bebber in a case where he faced similar problems: "If the court has inadvertently omitted a category or committed a computational error in defendants' favor, plaintiffs have only themselves to blame." United Phosphorus, Ltd. v. Midland Fumigant, Inc., 21 F.Supp.2d 1255, 1262 (D.Kan. 1998), rev'd on other grounds, 205 F.3d 1219 (10th Cir. 2000).
Out-of-pocket expenses may be reimbursed as part of the attorney's fees award if "(1) expenses are not absorbed as part of a law firm overhead but are normally billed to a private client, and (2) the expenses are reasonable." Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995), rev'd on other grounds, 518 U.S. 137 (1996).
The court shall consider only the following expenses: (1) postage; (2) delivery; (3) travel expenses/lodging/meals; (4) computerized research; and (5) telephone calls. Concerning these requests, the defendant has objected only to the following: (1) computerized research; and (2) "extraordinary" postage.
After a careful review of the requests made by the plaintiff and a careful consideration of the objections made by the defendant, the court is not persuaded that any of these requests are inappropriate or excessive. See, e.g., Jackson v. Austin, 267 F.Supp.2d 1059, 1069-71 (D.Kan. 2003). Accordingly, the court shall grant plaintiff the following expenses: (1) postage — $257.04; (2) delivery — $153.55; (3) travel expenses/lodging/meals — $2,137.84; (4) computerized research — $741.53; (5) telephone calls — $27.90. These amounts result in a total of $3,317.86.
IT IS THEREFORE ORDERED that plaintiff's motion for attorneys' fees, costs and expenses (Doc. # 225) be hereby granted in part and denied in part. The court shall award plaintiff attorneys' fees in the amount of $168,497.77 and expenses in the amount of $3,317.86.