Opinion
Docket No. 02-107-P-H.
May 23, 2005
DURWOOD L CURRIER, Plaintiff, represented by LOUIS B. BUTTERFIELD, BERNSTEIN, SHUR, SAWYER, NELSON, PORTLAND, ME.
UNITED TECHNOLOGIES CORPORATION, Defendant, represented by DANIELLE Y. VANDERZANDEN, DAY, BERRY HOWARD LLP, BOSTON, MA, PETER BENNETT, BENNETT LAW FIRM, P.A., PORTLAND, ME, FREDERICK B. FINBERG, BENNETT LAW FIRM, P.A., PORTLAND, ME.
RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR ATTORNEY FEES
The plaintiff, Durwood L. Currier, seeks to recover $206,285.28 in attorney fees and costs associated with this case, pursuant to Fed.R.Civ.P. 54(d) and this court's Local Rule 54.2. Plaintiff's Motion for Award of Attorneys' Fees and Costs, etc. ("Motion") (Docket No. 158) at 1, 10. The defendant opposes the motion in part, arguing for a lower award, although no amount is specified, but not contending that no award should be made. Defendant's Opposition to Plaintiff's Motion for Award of Attorneys' Fees and Costs ("Opposition") (Docket No. 164). I recommend that the court grant the motion in part.
The plaintiff in this case asserted two claims against the defendant under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Maine Human Rights Act, 5 M.R.S.A. § 4571 et seq. Count I alleged disparate treatment discrimination under the federal act; Count II alleged disparate treatment under the state statute. Complaint and Demand for Jury Trial (Docket No. 1) ¶¶ 20-30. The defendant's motion for summary judgment was granted as to the other two counts in the complaint, which alleged disparate impact discrimination under the same two statutes. Order Affirming Recommended Decision of the Magistrate Judge, etc. (Docket No. 35) at 2 (April 30, 2003). Trial was held from January 12-15, 2004. Docket No. 127. Judgment was entered on a jury verdict in favor of the plaintiff on both counts. Amended Judgment (Docket No. 151).
The ADEA directs the court to award a reasonable attorney fee and costs of the action to a prevailing employee. 29 U.S.C. §§ 216(b), 626(b) (incorporating § 216(b) by reference). The Maine Human Rights Act makes the award of attorney fees and costs to a prevailing party discretionary with the court 5 M.R.S.A. § 4614.
As the First Circuit teaches, ordinarily, the trial court's starting point in fee-shifting cases is to calculate a lodestar; that is, to determine the base amount of the fee to which the prevailing party is entitled by multiplying the number of hours productively expended by counsel times a reasonable hourly rate. Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case and then subtracting from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary. The court then applies hourly rates to the constituent tasks, taking into account the prevailing rates in the community for comparably qualified attorneys. One established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances.Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992) (citations and internal punctuation omitted). I will address the defendant's objections to specific aspects or portions of the fee request in the order in which they were presented by the defendant.
The defendant does not challenge the hourly rates used by counsel for the plaintiff in calculating the requested fee award. See generally Opposition. The plaintiff does not seek any upward adjustment in the requested lodestar. Motion at 10.
Paralegal Time
The plaintiff seeks to recover $1,750.00, representing 25 hours of paralegal time at the rate of $70 per hour. Motion at 10. The defendant points out that only 24.7 hours are included on the time sheets submitted in support of this request. Opposition at 2 n. 2. An adjustment will be made to reflect that minor discrepancy. See timesheets, Attachment 1 to Affidavit of Louis B. Butterfield ("Butterfield Aff.") (Docket No. 159). The defendant then argues that "[o]nly approximately 15 hours of the 25 paralegal hours claimed by Plaintiff should be recoverable," because "approximately 10 hours" of the recorded time "involve tasks that are properly included in firm overhead or that constitute the practice of law." Opposition at 3. Reimbursement for work performed by a paralegal that constitutes the practice of law is not appropriate. Weinberger v. Great N. Nekoosa Corp., 801 F. Supp. 804, 823 (D. Me. 1992). Reimbursement is not available for purely clerical tasks performed by paralegals. Lipsett, 975 F.2d at 939-40. The defendant identifies "MFM entries on Time Sheets" other than those dated October 16-18, 2002, December 11, 2002 and January 10, 2003 as falling within those categories. Opposition at 3 nn. 4 5. The defendant does not indicate which of these entries it contends demonstrate the practice of law and which consist only of clerical tasks. My review of the entries on the challenged dates quickly reveals many entries which are the essence of paralegal work, e.g., "[c]ompile and redact exhibits," January 13, 2003; "[a]ttention to exhibits for trial," December 23, 2003; "Preparation of trial and witness notebooks," December 31, 2003. I find no entries on the identified dates that could reasonably be interpreted as showing that the paralegal engaged in the practice of law. Other than numerous entries for two-tenths of an hour devoted to "[p]reparation of Certificate of Service; Correspondence to Clerk," e.g., October 22, 2002; February 13, 2003; April 14, 2003; August 27, 2003; October 16, 2003; January 7, 2004; February 4, 2004; February 23, 2004; March 8, 2004; March 11, 2004, none of the entries for work by a paralegal on the challenged dates may reasonably be characterized as clerical work. I conclude that even the entries for preparation of a certificate of service and correspondence to the clerk of court fall "into the gray area between purely clerical tasks and those properly entrusted to a paralegal," Lipsett, 975 F.2d at 940, and recommend that they not be disallowed.
With respect to paralegal time, therefore, I recommend a reduction of $21.00, representing three-tenths of an hour.
Lawyer's Time Spent On Clerical or Secretarial Tasks
The defendant identifies 44.2 hours of Attorney Butterfield's time which it contends were spent on clerical or secretarial tasks for which reimbursement should be "substantially discount[ed] or entirely eliminate[d]." Opposition at 3. It cites Kimball v. Shalala, 826 F. Supp. 573, 576 (D. Me. 1993), in support of this proposition. Opposition at 3. However, in that case, this court concluded that the attorneys seeking a fee award had included in their request under the Equal Access to Justice Act and the Social Security Act 1.85 hours spent on "basic nonlegal correspondence for which it would be improper to charge a client at the usual hourly rate" and reduced the hourly rate applicable to those hours by half; it did not characterize such activities as clerical or secretarial. Kimball, 826 F. Supp. at 576. All but one-tenth of the discounted 1.85 hours was listed on time sheets as "correspondence to Client." Id. n. 1. In Lipsett, another case cited by the defendant, the First Circuit merely stated that time spent in "translations of documents and court filings" by lawyers should be compensated at "a less extravagant rate" than that allowed by the district court. 975 F.2d At 940. In the final case cited by the defendant, Opposition at 3, Magistrate Judge Kravchuk recommended that the "time counsel spent putting together their retention and fee agreements" — some 22.95 hours — was unreasonable and should be reduced by half. Adams v. Bowater Inc., 2004 WL 1572697 (D. Me. May 19, 2004), at *8. Although this recommended reduction appears under the heading "Nonlegal work performed by an attorney," id., the reduction cannot fairly be characterized as having been made because the hours claimed were "spent on clerical or administrative functions," as the defendant asserts, Opposition at 3. To begin with, then, none of the authority cited by the defendant supports its contention that all of the challenged 44.2 hours should be eliminated.
In most instances, I am unable to discern from the text and footnote in Kimball, in which the analysis rests on Social Security case law differentiating between "core" and "non-core" activities by counsel, 826 F.2d at 576, what it was about the correspondence between the attorney and his client that rendered that correspondence "nonlegal." Several of the 49 entries in the timesheets which the defendant contends should be disallowed on this basis cannot reasonably be construed as mere "administrative" activity. E.g., March 29, 2002 ("[c]onference with client and Attorney Nugent re second-opinion evaluation of claims"); May 5, 2003 ("[r]eview Motion for Protection from Trial received from Attorney Bennett"); November 26, 2003 ("[c]onference with [this court's information technology specialist] re evidentiary presentations"). Most of the other entries challenged by the defendant consist of activities in which every lawyer will engage in the course of representing a client and which cannot or should not be performed by clerical or paralegal employees. Some of the correspondence at issue in Kimball involved what appears to have been mere conveyance of orders or court decisions to the client. 826 F. Supp. at 576 n. 1. None of the challenged entries in the timesheets at issue here can be read to record the execution of a similarly limited task. I recommend that no reduction or disallowance be made on this basis.
The defendant appears to have listed every instance in which an entry in the timesheets for Attorney Butterfield includes the words "correspondence," "telephone conference," or "review." Opposition at 3 n. 6.
Unsuccessful Claims
The defendant next argues that attorney fees for time spent on the disparate impact claims on which summary judgment was granted in the defendant's favor should be excluded from the award. Opposition at 3-5.
Upon determining that a party has prevailed on a claim that provides for fee shifting, a court must then determine whether the claims on which the party lost were unrelated to the successful claims, or whether they derived from a common core of facts or related legal theories. As with other aspects of fee award determinations, district courts retain broad deference in determining the relatedness of claims. Moreover, a close relationship between claims does not necessarily preclude district courts from reducing the total number of hours billed to account for the unsuccessful claims. Where the successful and unsuccessful claims are closely related, the district court may either identify specific hours that should be eliminated, or simply reduce the award to account for the limited success.Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837, 848 (D. Me. 1996) (citations omitted).
In cases in which a party has succeeded on only some claims, a court should exercise its judgment to ensure that parties do not recover for work expended on unsuccessful claims, but also to ensure that parties are not penalized for raising alternative legal arguments in good faith. Hence, a party who establishes that claims on which that party did not prevail are based on a "common core of facts" or "related legal theories" to those claims on which the party did prevail may receive complete compensation for the work pertaining to such facts or theories.Okot v. Conicelli, 180 F.Supp.2d 238, 243 (D. Me. 2002) (citations omitted). In performing this analysis, the court must give "primary consideration to the amount of damages awarded as to the amount sought." Id. (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)).
In the instant case, the defendant first contends that no recovery of fees should be allowed for 76.2 hours of attorney time spent on the plaintiff's claim before the Maine Human Rights Commission, Opposition at 4, concerning which a finding of no reasonable grounds to believe that discrimination occurred was made, Motion at 1. In the alternative, the defendant asserts that 50 of the 76.2 hours should be disallowed as excessive. Opposition at 4 n. 7. It offers no reason or analysis to justify its choice of 50 hours as the appropriate number to exclude, other than a citation to a recommended decision that did not find 23.6 hours spent in presenting a matter to the Maine Human Rights Commission to be excessive. The recommended decision in that case does not even discuss the time spent before the Commission separately; it merely lists the 23.6 hours as being included in the total time for which fees were requested. Johnson v. Spencer Press of Maine, Inc., 2004 WL 1859791 (D. Me. Aug. 19, 2004), at *2-*4. As the plaintiff points out, Plaintiff's Reply Memorandum in Support of Motion for Award of Attorneys' Fees and Costs ("Reply") (Docket No. 165) at 5, participation in the administrative proceedings before the Commission was a prerequisite to recovery of attorney fees under the Maine Human Rights Act, 5 M.R.S.A. § 4622(1). "[I]t is perfectly reasonable for Plaintiff to include in his petition for attorney's fees the time spent before the [Maine Human Rights] Commission." French v. Bath Iron Works Corp., 1999 WL 1995216 (D. Me. Nov. 29, 1999), at *3 (ADEA case); see also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 71 (1980); Nadeau v. Rainbow Rugs, Inc., 675 A.2d 973, 977 (Me. 1996). In the absence of any specification by the defendant as to which of the hours recorded by plaintiff's counsel for his work related to the Commission proceeding were "duplicative, unproductive, excessive, or otherwise unnecessary," Lipsett, 975 F.2d at 937, I recommend that the fees incurred for work before the Maine Human Rights Commission be included in the award.
Contrary to the representation of the defendant, Opposition at 4, the finding of the Maine Human Rights Commission was not "upheld on appeal." There is no evidence that any such appeal was taken.
The defendant next contends that 80.7 hours should be deducted from the attorney fee claim, consisting of the time spent by the plaintiff's attorney in researching the issue of disparate impact age discrimination (10 hours), on which this court granted summary judgment to the defendant, and preparing an objection to my recommended decision on that issue (10.7 hours); and time spent preparing an opposition to the defendant's motion for summary judgment on all claims (60 hours). Opposition at 4-5. The plaintiff responds that the disparate impact claims set forth in Counts III and IV derived from a common core of facts or related theories shared with the disparate treatment claims set forth in Counts I and II, on which he ultimately prevailed, and that the work associated with those counts should accordingly not be excluded from the fee award. Reply at 5.
If an attorney's work on an unsuccessful claim is unrelated to his or her work on a successful claim, "work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (citation and internal quotation marks omitted). "[T]he court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee." Id. After Hensley, the First Circuit observed that
a district court may find that the [successful and unsuccessful] claims are so interrelated, and the time spent in preparation of those claims so overlapping, that an attempt to separate the time attributable to one or the other would be futile. But it does not follow that the district court is prevented from eliminating hours attributable to [unsuccessful] claims where . . . the court reasonably concludes that there is not a complete overlap and separation is proper. Indeed in Hensley itself, where the successful and unsuccessful claims were closely related, the Supreme Court said generally that "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." 461 U.S. at 436-37.Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 7 (1st Cir. 1993) (citation omitted; emphasis in original). In this case, the claims of disparate impact and disparate treatment are based on similar legal theories and derive from a common factual core insofar as the disparate treatment claim is concerned. Additional facts were necessary to support the disparate impact claims.
The plaintiff argues that the entry of summary judgment against him on his disparate impact claims "was not really a `loss' at all" because he was "right" to bring those claims, even in the face of adverse rulings by the First Circuit on point, as demonstrated by the Supreme Court's ruling in Smith v. City of Jackson, 125 S.Ct. 1536 (2005). Reply at 5-6. Of course, whether there was a "loss" is not the determining factor; the case law speaks of unsuccessful claims. A subsequent decision by the Supreme Court overturning existing circuit precedent does not render an unsuccessful claim, on which the plaintiff took no appeal, retroactively successful. It is the outcome in the action for which the plaintiff seeks to recover attorney fees that is relevant. I conclude that attorney time clearly spent solely on the disparate impact claims is not recoverable. That time includes all or portions of entries on the time sheets identified by the defendant, Opposition at 4-5, nn. 8 9, for a total of 20.3 hours. The defendant seeks in addition a reduction by half of the hours spent preparing the plaintiff's opposition to its motion for summary judgment. Id. at 5. Considerably less than half of the plaintiff's memorandum of law submitted in opposition to the motion for summary judgment was devoted to the disparate impact claims. Plaintiff's Objection to Defendant's Motion for Summary Judgment, etc. (Docket No. 13) at 18-25. The time sheets record significantly more time devoted to research and drafting the opposition to the motion for summary judgment than was devoted to research on disparate impact. It is impossible to determine exactly how much of that time was spent on the disparate-treatment claims. Of a total of approximately 96 hours, I believe that a reduction of 20 additional hours is justified. I recommend a total reduction of 40.3 hours to represent work on the unsuccessful claims.
Two of the entries on the timesheet that record time spent on the disparate impact claims include other matters: a telephone conference with client and correspondence to an opposing attorney. Timesheet at 2 (12/04/2001) 9 (9/13/2002). I have excluded 2/10 of an hour for each of these activities.
Vague, Excessive and Duplicative Entries
The defendant asserts that "not less than 10.4 hours" and "as many as 141.3 hours" should be excluded as "too vague to permit Defendant to determine the reasonableness of the time spent." Opposition at 5. Reimbursement should not be allowed for entries on time sheets which are "gauzy generalities," or which are "so nebulous that they fail to allow the paying party to dispute the accuracy of the records as well as the reasonableness of the time spent." Lipsett, 975 F.2d at 938. Of the 10.4 hours specifically identified by the defendant as presenting unduly vague records, Opposition at 5 n. 10, two are not included in the time sheets (6/22/00 and 2/8/03), and the remainder are sufficiently specific, although the entry for 1.3 hours on May 17, 2002 ("Research; Discovery preparation") comes perilously close to meeting the Lipsett standard. None of the other entries identified by the defendant as unduly vague in part, Opposition at 5 n. 10, requires disallowance.
Next, the defendant identifies as excessive "approximately 120 hours during the summary judgment process," including "approximately 80 hours" preparing an opposition to the motion for summary judgment. Id. at 6. I have already recommended that 40.3 of these hours be excluded from the attorney fee award. Disallowances involved in the two other cases which the defendant cites in support of its position, id., are not readily applied to this case. Judge Brody did say in Wilcox, 921 F. Supp. at 846, that 70 hours spent by two attorneys preparing a response to a motion for summary judgment was excessive, but there is no way to tell how many issues were involved in that motion or how complex the issues were. No such detail is provided in the recommended decision in Adams on which the defendant also relies. I cannot conclude on the showing made that the remaining hours devoted to the summary judgment process were excessive per se. See generally Johnson, 2004 WL 1859791 at *2 (639.4 hours in litigation, including summary judgment motions and trial, not excessive).
The defendant apparently takes the position that any time incurred in preparation for a response to its motion for summary judgment before that motion was actually filed cannot be reimbursed. Opposition at 6. It offers no authority in support of this position. In many cases, including this one, it may well be reasonable to anticipate that opposing counsel will file a motion for summary judgment. The defendant has offered no reason why the opposite conclusion would be more reasonable in this case.
The defendant moves on to challenge as excessive, in conclusory fashion, "approximately 160 hours preparing for trial," although only one entry, "almost a year before the trial occurred," is specifically discussed. Opposition at 6. The presentation of this argument is so undeveloped that the court need not consider it. I do note that in January 2003 this case was put on a trial list for March 3, 2003, Docket, making it unlikely that "trial preparation" in February 2003 was unreasonable merely due to the date on which it was undertaken.
The defendant's next specific objection is to the devotion of 85.7 hours to post-trial motions and 187.8 hours to the appeal process, contending that "at least 100" of these hours should be disallowed. Opposition at 7. The plaintiff responds merely that the defendant "took the post-trial motions to an entirely new level by changing the breadth and focus of its arguments" and that counsel had to "read, digest, and summariz[e] 73 cases cited by UTC in preparation for oral argument" on the appeal. Reply at 7. He does not address the defendant's contention that the issues raised on appeal were "the same issues raised in Defendant's post-trial motions." Opposition at 7. Ordinarily, issues must be raised at the trial level in order to be cognizable on appeal.
The defendant cites only Johnson in support of its position on this issue. Id. In that case, 113.7 hours were spent in defending an appeal to the First Circuit. 2004 WL 18597971 at *2. My recommended decision in Johnson did not disallow any of those hours; it also did not establish 113.7 hours as any kind of ceiling on the hours that could reasonably be invested in defending a trial court judgment on appeal. Id. at *3. However, given the apparent overlap of issues from the post-trial briefing to the appeal, I conclude that some reduction in the hours devoted to the appeal is appropriate. In addition, 32.6 hours to prepare for oral argument on appeal appears to me to be excessive, even if all 73 cases cited by the defendant were cited for the first time in connection with the appeal in this case, a highly unlikely occurrence. I recommend that these hours (187.8) be reduced by approximately 20%, for a total reduction of 37.6 hours.
See Opposition at 7 n. 16.
The defendant also seeks a reduction of "at least 25" hours of the time spent drafting the appellate brief because Attorney Butterfield's time sheet entries do not specify the issues on which he worked. Opposition at 8. The issues included in the brief are known and the issues on which Attorney Tracy worked are known. Id. No further detail was required.
The defendant also asserts that the 15.3 hours that counsel spent on the fee petition is excessive. Opposition at 8. It contends that no more than five hours should be allowed and that the plaintiff's request to be allowed to supplement his request with hours spent on the fee issue after the filing of his motion should be denied. Id. The plaintiff does not respond to the argument on this issue. In Okot, Judge Carter found four hours to be a reasonable amount of time for preparation of a fee petition, reducing substantially the 26 hours requested. 180 F.Supp.2d at 249. My own review of the time sheets for the relevant period, Butterfield Aff. ¶ 16, shows 15 hours devoted to preparation of the fee petition and accompanying affidavit. I have no basis on which to compare this case with Okot, other than to note that the jury awarded substantially more damages in this case. I therefore cannot say whether the cases were comparable in complexity and effort. Still, I agree that 15 hours appears excessive for a 10-page motion, accompanied by three affidavits, only one of which was prepared by the attorney whose time is at issue. The 44-page timesheet document undoubtedly required careful review and the plaintiff persuasively describes the application of billing judgment to that document, Motion at 7-8 Butterfield Aff. ¶ 19, leading me to the conclusion that no more than five hours would not reasonably represent the necessary time involved in preparing the motion. On balance, I conclude that 10 hours is a reasonable time for preparation of the fee petition. I recommend that the plaintiff's request for leave to supplement his application after the motion is resolved be granted; significant time may well be involved in replying to the opposition to a petition for attorney fees and such time cannot reasonably be predicted in advance.
Expert Witness Time
The defendant argues that the plaintiff's request for $3,108.50 in fees for his expert witness Eric A. Purvis should be reduced because the bill submitted by Purvis and attached to the plaintiff's request as the only support for that amount fails to offer a detailed accounting of the time spent by Purvis on this case. Opposition at 8-9. The bill at issue merely states that it is submitted "for professional services rendered." Attachment 3 to Butterfield Aff. It does not state an hourly rate or how many hours Purvis devoted to this case. Like the expert witness's bills in Wilcox, this bill "lacks anything approaching the specificity and detail that would allow the Court to engage in serious review." 921 F. Supp. at 849. Despite being put on notice of this issue by the defendant's opposition, the plaintiff merely asserts that "Mr. Purvis' invoice . . . describes the work that he performed in sufficient detail to support an award of the full amount paid by" the plaintiff. Reply at 8. On the contrary, the invoice is clearly not sufficient. See, e.g., Johnson, 2004 WL 1859791, at *7. On the showing made by the plaintiff, the court would be justified in excluding Purvis's entire bill. The defendant has only requested a reduction of $2,000 in this cost, however, Opposition at 9, so that is the reduction that I recommend.
The defendant does not challenge any of the $1,722.50 billed by the plaintiff's other expert witness, Sat Gupta, Ph.D.