Opinion
Civil Action No. 3:02-CV-2340-H.
August 1, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed July 8, 2005, this matter has been referred to the United States Magistrate Judge for hearing, if necessary, and for recommendation. Before the Court are Defendant City of Terrell's Motion and Brief for Attorneys Fees and Expenses, filed May 26, 2005, and Plaintiff's Response to Defendant's Application for Attorneys Fees and Expenses, filed May 30, 2005.
I. BACKGROUND
On October 24, 2002, Plaintiff, an officer with the Terrell Police Department, initiated this civil action against Defendant and another officer, under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and state law for alleged sexual harassment. On August 13, 2004, the District Court granted Defendant's motion to dismiss Plaintiff's § 1983 claims, and Defendant's motion for summary judgment on Plaintiff's claims of supervisory quid pro quo harassment; negligent hiring, supervision, and retention; and intentional infliction of emotional distress. Plaintiff's Title VII claims of hostile work environment and retaliation proceeded to a jury trial on May 9-11, 2005. On May 11, 2005, at the close of Plaintiff's case, the District Court granted Defendant's motion for judgment as a matter of law. Defendant now seeks an award of attorney's fees and costs.
II. ANALYSIS
A. Attorney's Fees under 42 U.S.C. § 1983
Defendant seeks an award of attorney's fees as the prevailing party in an action brought under 42 U.S.C. § 1983. In a § 1983 suit, a prevailing party may be awarded attorney's fees pursuant to 42 U.S.C. § 1988. However, a prevailing defendant is entitled to fees "`only when a plaintiff's underlying claim is frivolous, unreasonable, or groundless.'" Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000) (quoting Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999)). "When considering whether a suit is frivolous, a district court should look to factors such as whether the plaintiff established a prima facie case, whether the defendant offered to settle, and whether the court held a full trial." Id. A case is found to have been frivolous when it "was so lacking in merit that it was groundless. . . ." United States v. Missisippi, 921 F.2d 604, 609 (5th Cir. 1991).
1. Prima Facie Case
The first factor the Court considers in determining whether Plaintiff's action was frivolous is whether she established a prima facie case under § 1983. In order to establish a prima facie case under § 1983 against a municipality, "the claim must be based upon the implementation or execution of a policy or custom which was officially adopted by that body's officers." Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 532 (5th Cir. 1996) (citing Krueger v. Reimer, 66 F.3d 75, 76 (5th Cir. 1995)). The plaintiff must plead facts which show that: (1) a policy or custom existed; (2) the governmental policy makers actually or constructively knew of its existence; (3) a constitutional violation occurred; and (4) the custom or policy served as the moving force behind the violation. Id. at 532-33 (citing Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987)).
In this case, the District Court's August 13, 2004 order granted Defendant's motion to dismiss Plaintiff's § 1983 claims because Plaintiff "entirely failed to plead the existence of an official policy or custom." Plaintiff failed to establish a prima facie case of discrimination under § 1983 because she did not even address the first factor in her pleadings. While the Court recognizes that Plaintiff's § 1983 claim was based on the same operational facts and was presented as an alternative theory to Plaintiff's Title VII and state law claims, the fact remains that Plaintiff appears not to have even attempted to plead and prove her alternate theory. This fact weighs heavily in favor of a finding of frivolity as to Plaintiff's § 1983 claim against Defendant. See Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (finding a claim to have been patently frivolous when the plaintiff failed to come forward with any evidence supporting a prima facie claim of discrimination).
2. Settlement Offer
Next, the Court considers whether Defendant offered to settle the case. The Fifth Circuit has stated that "whether a defendant offers to settle a case is of questionable value in determining whether the plaintiff's claims were frivolous." Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir. 2000). This is because a municipal defendant may have a policy of rarely settling claims to discourage lawsuits. Id. In this case, Defendant asserts that it made no settlement offer on Plaintiff's § 1983 claim because it "deemed this case as without any factual or legal basis for recovery." (Mot. at 5.) Formal settlement negotiations did not occur until after the § 1983 claims were dismissed from this suit. Accordingly, this factor weighs somewhat in favor of a finding of frivolity as to the § 1983 claims.
3. Trial
Lastly, the Court considers whether Plaintiff's § 1983 claims against Defendant were heard at trial. When a case proceeds to a full trial on the merits, despite attempt by the defendant to have it dismissed, it is within a court's discretion to deny fees to the prevailing defendant. Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 1986).
In this case, Plaintiff's § 1983 claim was dismissed well before trial for failure to state a claim upon which relief could be granted. This factor also weighs in favor of a grant of attorney's fees to Defendant. See Myers, 211 F.3d at 293 (awarding attorney's fees where the plaintiff's case was dismissed before reaching the jury due to her failure to offer any evidence implicating certain defendants); Baughner v. Pulito, 804 F.2d 873, 878 (5th Cir. 1987) (no award of attorney's fees when the plaintiff's action proceeded to a full trial on the merits despite the defendant's attempts to have the case dismissed).
After weighing the foregoing factors, the Court concludes that Plaintiff's claim against Defendant for alleged violation of § 1983 was frivolous. Although infrequently requested to do so, courts in this circuit have awarded attorney's fees to prevailing Defendants upon a finding of frivolity. See e.g. Myers, 211 F.3d at 293 (affirming a fee award to prevailing defendants when the plaintiff offered no evidence at trial that her rights had been violated); Walker, 168 F.3d at 240 (affirming a fee award when the plaintiff failed to come forward with any evidence of a constitutional violation); Strain v. Kaufman County Dist. Attorney's Office, 23 F. Supp.2d 698, 700-03 (N.D. Tex. 1998) (awarding attorney's fees where the plaintiffs failed to present any evidence in support of their claim, the defendants never seriously entertained the idea of settling the suit, and the plaintiffs presented nothing to merit a trial); Hahn v. City of Kenner, 1 F. Supp.2d 614, 618-19 (E.D. La. 1998) (awarding attorney's fees where there was no ground for the plaintiff's claim and the plaintiff presented neither evidence nor cogent argument pertaining to overcoming the defendant's claim of qualified immunity). Accordingly, the Court recommends that Defendant recover its reasonable and necessary attorney's fees for defending against that claim.
B. Attorney's Fees under Title VII
Defendant also seeks to recover attorney's fees incurred in defending against Plaintiff's Title VII claim. Under Title VII, courts have discretion to award attorney's fees to a prevailing party. 42 U.S.C. § 2000e-5(k). However, a prevailing defendant in a Title VII action may only recover attorney's fees where the court finds that the "claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, (1978). See also E.E.O.C. v. Tarrant Distributors, Inc., 750 F.2d 1249, 1250 (5th Cir. 1984); Stewart v. Department of Health and Hospitals, 117 Fed. Appx. 918, 923 (5th Cir. 2004) (unpublished).
In this case, Plaintiff's Title VII claims against Defendant survived summary judgment. It was only at trial, after Plaintiff presented her case to the jury, that the Court granted Defendant's motion for judgment as a matter of law. Although the District Court found that the evidence presented at trial fell short of establishing that Defendant permitted establishment of a hostile work environment or retaliated against Plaintiff, the Court is unable to say that Plaintiff's Title VII claim against Defendant was frivolous, unreasonable, or groundless such that Defendant is entitled to recover attorney's fees for this claim.
C. Lodestar Calculation of Attorney's Fees
Having determined that Defendant should be entitled to recover its reasonable and necessary attorney's fees for defending Plaintiff's § 1983 claims, the Court utilizes the "lodestar" method determine the amount to be awarded. Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). In assessing the reasonableness of attorney's fees, the court must first determine the "lodestar" by multiplying the "number of hours reasonably expended by an appropriate hourly rate in the community for such work." Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). The party seeking an award of attorney's fees has the burden of proving the reasonableness of the hours expended and the rate charged. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990). If the party's proof of these factors is inadequate, the court may reduce the award accordingly. Id.
"The first task in calculating attorney's fees is determining the reasonable number of hours expended on the case. A fee applicant is required to document the time spent and services performed." Millennium Restaurants Group, Inc. v. City of Dallas, Texas, 2002 WL 1042117, at *2 (N.D. Tex. May 21, 2002). In this case, Defendant has presented its counsel's affidavit and billing records reflecting counsel's experience, customary hourly fee, and the number of hours expended in the case. Defendant seeks attorney's fees in the amount of $145,302.25 for 1229.10 hours expended in defense of all claims in this case. (Def.'s Appx. at 7.) Defendant's supporting affidavits states that the bills reflect hours billed at either $150 per hour, $80 per hour, or $65 per hour. Id. However, Defendant provides no breakdown of the number of hours billed at each rate to assist the Court in understanding how the total amount was reached. Rather, Defendant provides eighty-seven pages of billing records. Numerous entries include work billed at $125 per hour, apparently performed by the associate whose rate, according to Defendant, was $80 per hour. (Appx. at 10, 14, 16-26, 28, 30-37, 40-47, 49-52, etc.) This makes it exceedingly difficult for the Court to determine an appropriate fee award. See Performance Printing Corp. v. The Upper Deck Co., 1999 WL 643811, at *4 (N.D. Tex. Aug. 23, 1999) (requiring "hourly reports — a separate one for each attorney and paralegal, with an adequate description of the services performed, hours expended, and dates on which the work was done."); Walton v. Autotrol Corp., 1998 WL 50459, at *4 (same).
It is this Court's usual practice to order the party seeking fees to resubmit its fee application when the original application is insufficient to allow a determination of the proper fee amount. However, in this case, the matter was referred to the Court fully ripe and with a short deadline for the Court to make its recommendation.
Additionally, the Court is unable to determine the reasonableness of much of the work performed because reference to specific issues has been redacted from the billing records. See e.g. Def.'s Appx. at 18 ("Review ____;" "Work on issues ____;" "Work on ____"). Absent a description of the services performed, the Court is unable to determine whether the work was reasonable or necessary. See LULAC v. Roscoe Indep. School Dist., 119 F.3d 1228, 1233 (5th Cir. 1997) (disapproving of "research and review of cases" and noting that a complete entry would show "the date, the number of hours spent (calculated to the tenth of an hour), and a short but thorough description of the services rendered."); see also Hopwood v. State of Texas, 999 F.Supp. 872, 916 n. 93 (W.D. Tex. 1998) (finding that "REVIEW AND REVISE BRIEF," and "LEGAL RESEARCH RE 5TH CIRCUIT ISSUES," were "too vague and brief to inform the Court precisely what work was done").
Lastly, Defendant did not segregate the amount of hours spent defending the § 1983 claim, and the billing records submitted do not reflect time spent on individual claims. However, as Plaintiff's § 1983 claims in this case involved the same operative facts as the Title VII claims, it appears that segregating the time spent solely on the § 1983 claim would be tedious, if not impossible. See Applewhite v. Computer Associates Intern., Inc., 2003 WL 44418, *1 (N.D. Tex. Jan. 3, 2003) (noting that where several claims arise out of the same operative facts, the applicant may not be required to segregate the work performed by his attorneys on each claim). On the other hand, requiring Plaintiff to reimburse Defendant the entire amount of attorney's fees would be unjust, particularly as it is clear from Plaintiff's failure to even properly plead a cause of action under § 1983 that the emphasis in this case was on her Title VII claim. Additionally, as the § 1983 claim was dismissed on August 13, 2004, any work performed after that date is clearly not attributable to that claim.
Twenty-seven pages of billing records pertain to work performed after August 13, 2004.
Thus, due to the fact that the Court is unable to determine from the fee application the reasonable and necessary fees expended by Defendant in defense of the § 1983 claim, the Court must reduce the fee award. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (concluding that if the documentation in support of a fee application is vague or incomplete a district court may reduce the number of hours awarded). The Court is also mindful of the purpose in awarding attorney's fees to prevailing Defendants in a § 1983 action. Attorney's fees are awarded to prevailing defendants to "protect defendants from burdensome litigation having no legal or factual basis." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420 (1978) (holding applied to awards to prevailing defendants under 42 U.S.C. § 1988 in Hughes v. Rowe, 449 U.S. 5 (1980)). In this case, an award of attorney's fees is intended to deter the inclusion of frivolous claims which detract from otherwise colorable claims. Based upon this Court's experience in determining the appropriate amount of attorney's fees in similar actions where attorneys obtained a dismissal of claims for failure to plead a prima facie case, considering the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and with an eye to the purpose of a fee award in this case, the Court determines that a fee award of $4,500 would be appropriate for defense of the § 1983 claim.
The twelve Johnson factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Cobb v. Miller, 818 F.2d 1227, 1231 n. 5 (5th Cir. 1987) (citing Johnson, 488 F.2d at 717-19).
For the foregoing reasons, the Court RECOMMENDS that Defendant recover $4,500 in attorney's fees as the prevailing defendant in a § 1983 action.
D. Costs
Defendant also seeks to recover costs in the amount of $15,218.69. (Mot. at 6-7.) Plaintiff did not address Defendant's motion for costs. Unless the court otherwise directs, costs are to be awarded to a prevailing party as a matter of course pursuant to FED. R. CIV. P. 54(d)(1). There is a strong presumption that the court will award costs to the prevailing party." Salley v. E.I. DuPont de Nemours Co., 966 F.2d 1011, 1017 (5th Cir. 1992) (citing Sheets v. Yamaha Motors Corp., U.S.A., 891 F.2d 533, 539 (5th Cir. 1990)). "The court cannot require the prevailing party to share costs unless the costs serve as a sanction." Id. The express provisions of 28 U.S.C. § 1920, however, limit the Court's discretion in taxing costs against an unsuccessful litigant. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). That statute enumerates the following recoverable costs:
1) Fees of the Clerk and Marshal;
2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
3) Fees and disbursements for printing and witnesses;
4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
5) Docket fees under § 1923 . . .; and
6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretations services under § 1828 . . .;
28 U.S.C. § 1920. A district court may decline to award costs listed in the statute, but may not award costs omitted from the statute. Crawford Fitting Co., 482 U.S. at 441-42; Gaddis v. U.S., 381 F.3d 444, 450 (5th Cir. 2004). Defendant has submitted a bill of costs listing fees for service of subpoenas, court reporter fees, printing fees, copy fees, and other costs.
1. Fees of the Clerk and Marshal
Defendant seeks to recover $856.50 for service of subpoenas. The Fifth Circuit has held that the phrase "[f]ees of the clerk and marshal" includes private process servers' fees as taxable costs "because the service of summonses and subpoenas is now done almost exclusively by private parties employed for that purpose, not the U.S. Marshal, even though there is no express provision authorizing the payment of private process servers in § 1920." Gaddis, 381 F.3d at 456. Of the $856.50 submitted by Defendant for service of subpoenas, only $224.00 is for actual service of a subpoena. $270.00 is for attempted service of two subpoenas. The remaining $362.50 is for an investigation of one individual and a skip trace of another. Because the Court is unable to determine why the investigation and skip trace were necessary, it will not tax those costs against Plaintiff. Accordingly, Defendant should recover $494.00 for service of subpoenas.
2. Fees for court reporters services
Defendant submits a bill for $7,166.04 in court reporter fees for depositions taken in this case. A deposition is taxable as a cost so long as "the taking of the deposition is shown to have been reasonably necessary in light of the facts known to counsel at the time it was taken." Cooper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1099 (5th Cir. 1982). If, at the time it was taken, a deposition could reasonably be expected to be used for trial preparation, rather than merely for discovery, it may be included in the costs of the prevailing party. Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991). As Plaintiff has not objected to Defendant's representation that the depositions charges listed in the bill of costs was reasonable, the Court finds that Defendant should recover $7,166.04 in court reporter fees.
3. Printing fees
Defendant seeks to recover $98.40 in printing fees. However, Defendant provides no elaboration as to the reason for the fees and there is no evidence in support of this request. Accordingly, Defendant should not recover fees for printing.
4. Fees for copies
Defendant submits a bill for $2,800.09 for copies. Before a district court may tax costs for copies, it "must find that the copies for which costs are sought were necessarily obtained for use in the litigation. Moreover, the party seeking such costs must offer some proof of the necessity." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (internal citations omitted). Although it is not required that every copy be scrupulously accounted for, there must be "some demonstration that reproduction costs necessarily result from that litigation." Fogleman, 920 F.2d at 286. There is no evidence in support of this portion of Defendant's bill of costs. Accordingly, Defendant should not recover any fees for copies.
5. Other costs
Defendant also requests $4,297.66 in miscellaneous costs. Defendant acknowledges that these costs are not authorized by § 1920, but asserts that this court has discretion to award costs not specifically set out in the statute. The law is clearly otherwise. As noted previously, a district court may not award costs omitted from the statute. Crawford Fitting Co., 482 U.S. at 441-42; Gaddis v. U.S., 381 F.3d 444, 450 (5th Cir. 2004).
For the foregoing reasons, the Court RECOMMENDS that Defendant recover $7,660.04 in costs as the prevailing party in this litigation.
III. CONCLUSION
For the reasons herein stated, the Court RECOMMENDS that Defendant City of Terrell's Motion and Brief for Attorneys Fees and Expenses, filed May 26, 2005, be GRANTED, in part, and that Defendant recover $4,500 in attorney's fees and $7,660.04 in costs from Plaintiff.
SO RECOMMENDED.