Opinion
No. SA-99-CV-1448-RF.
February 3, 2005
ORDER OF JUDGMENT AS A MATTER OF LAW AND AWARDING ATTORNEY'S FEES
BEFORE THE COURT is Defendant's post-trial Motion for Judgment as a Matter of Law, filed on October 15, 2004, along with various responses and replies from Plaintiff Salome Fierros and Intervenor Russell Amsberry. Also before the Court are the parties' requests for attorney's fees to be awarded on conjunction with the jury verdict in this cause entered on August 10, 2004. Having carefully considered the arguments, the applicable law, and the facts before it, the Court has determined that the Defendant's motion is meritorious, and will GRANT Defendant's Motion for Judgment as a Matter of Law (Docket No. 163). The Court here also enters its determination on the issue of attorney's fees in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Salome Fierros, complains that Defendant retaliated against her in violation of Title VII. Plaintiff has been employed as a Lab Technician at the lab of the Texas Center for Infectious Disease, a department of the Texas Department of Health ("TDH") for over twenty-five years. After initially filing a claim with the Equal Opportunity Employment Commission ("EEOC") and obtaining a right to sue letter, Plaintiff filed a complaint in District Court. Thereafter, the Court granted Defendant's motion for summary judgment on all claims. Plaintiff appealed that order, and the Fifth Circuit reversed and remanded the cause for consideration of Plaintiff's claim that she was denied a merit raise in 1997 due to her having filed a discrimination charge in 1996. Thereafter, the parties agreed that the sole issue remaining before the Court was the scope of damages to which Plaintiff was entitled as relating to her claim that she was denied a $57 per month pay raise in May 1997.
42 U.S.C. § 2000e et seq.
See Fierros v. Texas Dep't of Health, 274 F.3d 187, 192 (5th Cir. 2001).
On May 25, 2004, the Court granted in part and denied in part Defendant's motion for summary judgment as to the various types of damages available to Plaintiff. The Court determined at that time that punitive damages were unavailable to Plaintiff in her Title VII suit against an entity of the State of Texas. As to the issue of back pay, the Court held that, when final judgment is entered, the Court will award back pay damages for the thirty-two month period of May 1997 through December 1999 at the rate of $57 per month. According to the Court's calculation, the award for back pay at final judgment will approximate $1,824, less any appropriate withholdings to be determined. Finally, the Court held that on the record before it at the time, there was not enough evidence to grant summary judgment for the Defendant on the issue of back pay and reserved this issue for trial. (Docket No. 134).
The Court held a jury trial beginning August 10, 2004, on the issue of Plaintiff's compensatory damages for unlawful retaliation. On the same day the jury reached a verdict, awarding Plaintiff Fierros a total of $7,880 in damages, including $5,000 as compensation for mental pain, humiliation, embarrassment, depression, anger, and emotional distress and $2,880 as compensation for out-of-pocket expenses.
Following the close of evidence, Defendant made an oral motion in open court for judgment as a matter of law on the issue of Plaintiff's out-of-pocket expenses, arguing that there were no pleadings and insufficient evidence to support a jury finding regarding these expenses. The Court denied this motion and allowed the question to be submitted to the jury. By the instant motion, Defendant reasserts its Motion for Judgment as a Matter of Law.
DISCUSSION
I. Defendant's Motion for Judgment as a Matter of Law Regarding Plaintiff's Out-of-Pocket Expenses
At trial in this matter, Plaintiff was not allowed to present any documentary evidence to support her claim for out-of-pocket expenses, because she sought to tender the evidence on the morning of trial without any prior notice. Defendant argued in its motion in limine that the evidence should be excluded due to surprise and contended that Plaintiff had not raised the issue of her out-of-pocket expenses in pleadings in this matter and that the evidence should also be excluded for this reason. The Court subsequently granted Defendant's motion in limine, ordering that the documentary evidence of Plaintiff's out-of-pocket expenses would not be admitted.
As a result, the only evidence in the record of these expenses is Plaintiff's oral testimony that the expenses amounted to around $1,200. Further, there is no testimony in the record that the expenses forming the basis of this estimate were medically necessary or brought about by the Defendant's retaliation. In Romano v. Citizens Utility Co., a district court which heard a similar retaliation case found that a sworn affidavit from the plaintiff lacked documentary support and was not sufficient evidence to warrant an award of out-of-pocket expenses.
See 1999 WL 191457, at *4 (E.D. La.).
On cross-examination, Plaintiff admitted that her estimate of $1,200 was based primarily on costs associated with three prescription drugs, two of which were prescribed prior to the complained-of retaliation. She also admitted that much of this medication was prescribed for a back injury that similarly predated Defendant's retaliatory action.
Plaintiff responds, arguing that her First Amended Petition was filed pro se and that her pleadings were sufficient to support a jury finding regarding out-of-pocket expenses. Specifically, Plaintiff points to the perfunctory language included in her prayer for relief asking the Court to "[g]rant such other relief as the Court may deem just and proper."
Plf.'s Reply at 2; Plf.'s First Amend. Comp., at 6.
Putting aside Plaintiff's failure to plead for out-of-pocket expenses, the Court finds that there is insufficient evidence to support the jury's award of $2,880. Plaintiff admitted that a significant portion of her estimated expenses were incurred not as a result of Defendant's retaliatory action but because of a back injury that pre-dated the denial of the merit pay increase. Further, Plaintiff submitted no corroborating evidence to show that the expenses were medically necessary or brought about by the retaliation complained of here. When viewed in light of the Plaintiff's answers upon cross-examination, the Court finds no basis upon which to uphold an award of $2,880 for these expenses.
As a result, the Court will grant Defendant's Motion for Judgment as a Matter of Law as to Plaintiff's out-of-pocket expenses. The final judgment entered in this cause will not include the jury's finding of $2,880 in out-of-pocket expenses.
II. Requests for Attorney's Fees
Also before the Court are Intervenor Russell Amsberry's Application for Attorney's Fees, filed on August 30, 2004 (Docket No. 157) and Plaintiff's Motion for Attorney's Fees, files on September 1, 2004 (Docket No. 159). Intervenor was Plaintiff's counsel from 1999 until July 2002, when he withdrew as counsel. On October 16, 2000, this Court granted summary judgment for Defendant TDH, dismissing Plaintiff's retaliation claim. (Docket No. 26). Intervenor represented Plaintiff in her appeal of this decision to the Fifth Circuit Court of Appeals, which on November 21, 2001 reversed the Court's summary judgment decision. Intervenor subsequently represented Plaintiff on remand to this Court, until he withdrew as counsel on July 10, 2002. (Docket No. 47).
Fierros v. Texas Dep't of Health, 274 F.3d 187.
This Court earlier granted Mr. Amsberry's motion to intervene and now turns its attention to his request for attorney's fees. The Court held an initial hearing on the matter of attorney's fees on September 1, 2004, at which time it heard arguments from Plaintiff and Intervenor as to the appropriateness of a fee award in this matter. Plaintiff also seeks attorney's fees for present counsel. The Court requested additional briefing and now enters its award of attorney's fees.
Intervenor compiled the work done on behalf of Plaintiff, multiplied by the rate of $175 per hour for trial work and $225 for his work at the appellate level. In sum, Intervenor requests $51,797.50 in attorney's fees for work performed through August 26, 2004.
Defendant responds, asserting that it had filed a valid Offer of Judgment in September 2000, which proposed a settlement of $7,500 plus costs and attorney's fees and additional consideration in the form of pay raises. Plaintiff did not accept this offer, and Defendant argues that any potential attorney's fees in this matter should be reduced as a result.
Federal Rule of Civil Procedure 68 requires the prevailing plaintiff to pay all costs incurred after an offer of judgment when the plaintiff does not accept the defendant's offer of judgment which is more favorable than the judgment which the plaintiff ultimately obtains. The operation of Rule 68 is mandatory, leaving no room for district court discretion. Once it rejects an offer of judgment, a prevailing plaintiff may not recover otherwise awardable costs incurred after the date of the offer and most courts also hold that plaintiff must pay defendant's costs incurred after that date. In Marek v. Chesny, the Supreme Court held that where the underlying statute includes attorneys fees as recoverable "costs," the prevailing party who does not achieve an award more favorable than the Rule 68 judgment offer is not entitled to attorney's fees incurred after the offer.
FED. R. CIV. P. 68; Johnston v. Penrod Drilling Co., 803 F.2d 867, 869 (5th Cir. 1986); Marek v. Chesny, 473 U.S. 1, 5 (1985).
Johnston, 803 F.2d at 869; 12 WRIGHT, MILLER MARCUS, FEDERAL PRACTICE PROCEDURE: § 3006, at 120 (2d ed. 1997).
WRIGHT, MILLER MARCUS, § 3006, at 121 (citing authority holding that plaintiffs had to pay defendants' costs).
Marek v. Chesny, 473 U.S. at 9-12. See also the appendix to Justice Brennan's dissenting opinion, listing Title VII as a statute that includes attorney's fees as part of "costs." Id. at 47.
Rule 68 only applies when the judgement plaintiff ultimately obtains is less favorable than the offer of judgment. Generally speaking, this requires the court to compare two amounts: the amount of the judgment and the amount finally obtained by the plaintiff. As commentators have noted, this determination is not always straightforward, because the judgment figure should be augmented to include an amount for costs if they were not treated separately in the offer. If the costs were specified or provided for in the offer of judgment, then costs need not be added to the judgment figure for the sake of comparison.
See, e.g., Johnston, 803 F.2d at 868.
See Louisiana Light Power Co. v. Kellstrom, 50 F.3d 319, 334 (5th Cir. 1995).
WRIGHT, MILLER MARCUS, § 3006, at 122-25.
Defendant argues that the operation of Rule 68 here would preclude Intervenor's claims for fees after the entry of the offer in September 2000. Defendant argues that Intervenor's award of fees should be at the most $10,193.75, an amount Defendant reached by multiplying the hours Intervenor worked prior to September 2000 by Intervenor's requested rate of pay.
Analyzing Intervenor's Application for Attorney's Fees and related documents in support, the Court finds that Intervenor spent approximately 37.25 hours on Plaintiff's case. If multiplied by Intervenor's requested rate of $175 per hour, this yields a pre-offer attorney's fee amount of $6518.75, by the Court's calculation.
Plaintiff replies, seeking an award of $21,568.75 in attorney's fees for Plaintiff's counsel. Plaintiff seeks an award for counsel of fees from the Court for representation beginning March 11, 2004, when Plaintiff's current counsel entered his appearance on her behalf. (Docket No. 128). Plaintiff also objects to Defendant's arguments regarding the operation of the offer of judgment filed by Defendant in 2000, and contends without support that Rule 68 does not impact the Court's award of attorney's fees here.
As indicated at the initial hearing on attorney's fees held on September 1, 2004, the Court believes that an award of attorney's fees would be equitable in this situation. As a result, the Court initially informed parties at the September 1 hearing that it intended to award both Intervenor and Plaintiff's current counsel attorney's fees for their work on Plaintiff's behalf.
However, it is clear that Rule 68 and cases decided under it take the issue of attorney's fees in this matter outside the Court's discretion. As set forth above, Rule 68 requires the Court to compare the value of an unaccepted offer of judgment with the value of the judgment later obtained.
Here, Defendant's Offer of Judgment was tendered on September 28, 2000 and proposed a judgment of $7,500, plus costs and attorney's fees, plus a prospective pay raise "by the amount Plaintiff would have received if given a pay raise in May, 1997." In his application for attorney's fees, Intervenor states that he had spent approximately 37.25 hours on Plaintiff's case up to and including work performed related to the offer of judgment. Multiplying 37.25 hours times the hourly rate of $175 would yield fees of approximately $6,518.75. There is little evidence before the Court on costs incurred in the prosecution of Plaintiff's case up to the offer of judgment, other than the $150 filing fee. Thus, on the evidence before it, the Court finds that the offer of judgment was worth at least $14,168.75.
To finish the analysis, the Court must compare that figure with the judgment that will be entered for Plaintiff. As set forth above, the jury awarded Plaintiff $7,880 in damages. This figure included $5,000 as compensation for mental anguish damages and emotional distress and $2,880 as compensation for out-of-pocket expenses. The Court has already determined that there is insufficient evidence in the record to support the jury's award of out-of-pocket expenses. The Court will not award this component of damages. Additionally, the Court has determined that Plaintiff's final judgment will include $1,824 in back pay for the $57 merit pay increase for the thirty-two month period at issue. Thus, the Court will enter judgment for Plaintiff in the amount of $6,824.
Comparing the two figures, it is clear that the judgment Plaintiff ultimately obtains ($6,824) will be less favorable than the Defendant's Offer of Judgment in September 2000 ($14,168.75). As a result, Rule 68 applies, and the Court is without discretion to award Plaintiff attorney's fees or other costs for the period after September 2000. Since it may award attorney's fees for work performed up to this point, the Court will grant Intervenor's Application for Attorney's Fees and award Intervenor $6,500, as indicated at the hearing on this issue. However, due to the operation of Rule 68, the Court may not award Plaintiff fees or costs associated with post-offer representation, including attorney's fees for her current counsel. Thus, the Court must deny Plaintiff's Motion for Attorney's Fees.
Johnston, 803 F.2d at 869; 12 WRIGHT, MILLER MARCUS, § 3006, at 120.
CONCLUSION
Accordingly, it is ORDERED that Defendant's Motion for Judgment as a Matter of Law (Docket No. 163) is hereby GRANTED as to the jury verdict for out-of-pocket expenses.
It is further ORDERED that Plaintiff's claim for out-of-pocket expenses is DISMISSED WITH PREJUDICE.
It is further ORDERED that Intervenor's Application for Attorney's Fees (Docket No. 157) be GRANTED and Intervenor Russell Amsberry is awarded $6,500.
It is further ORDERED that Plaintiff's Motion for Attorney's Fees (Docket No. 159) be DENIED for the reasons set forth above.