Summary
enhancing an attorney's fee in civil rights litigation because accepting such litigation stigmatizes an attorney as a civil rights lawyer and deters fee-paying clients
Summary of this case from CITIZENS INSURANCE CO. OF AMERICA v. KIC CHEMICALSOpinion
CIVIL ACTION NO. 01-T-063-S
May 13, 2003
Abigail P. van Alstyne, Gordon, Silberman, Wiggins Childs, Birmingham, AL, Eugene P. Spencer, II, Gene Spencer PC, Dothan, AL, for plaintiff LaPATRIA HILL.
Jack Martin Bains, Jr., McDaniel, Bains Norris, PC, Birmingham, AL, for defendant R.C. COLA BOTTLING COMPANY.
ORDER
In this lawsuit, plaintiff LaPatria Hill charged defendant Royal Crown Bottling Co. of Chicago, Inc. with gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e.-17. The jury returned a verdict in favor of Hill, awarding her lost pay for the entire six-month period she remained unemployed after Royal Crown refused to hire her, as well as punitive damages; her total damage award came to $9,493.29. This cause is now before the court on Hill's motion for attorneys' fees and expenses in the amount of $73,132.80. Jurisdiction is proper pursuant to 42 U.S.C.A. § 2000e-5(f)(3). For the reasons that follow, the motion will be granted to the extent that Hill is entitled to recover expenses of $3,298.00 and attorneys' fees in the amount of $47,997.00 from Royal Crown.
The starting point in setting attorney's fees is determining the "lodestar" figure — that is, the product of the number of hours reasonably expended to prosecute the lawsuit and the reasonable hourly rate for work performed by similarly situated attorneys in the community. After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939-40 (1983).
In making the above determinations, the court is guided by the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) Blanchard v. Bergeron, 489 U.S. 87, 91-92, 109 S.Ct. 939, 943-44 (1989); Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9. These factors are (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or 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.
In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir.) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
I. REASONABLE HOURS
Hill's attorneys, Abigail P. van Alstyne and Eugene Spencer, submit that they worked on this case for a cumulative 312.9 hours. Specifically, van Alstyne claims 269.9 hours and Spencer claims 43 hours. Royal Crown objects to some of the hours claimed. The court finds that some of Royal Crown's contentions have merit and will reduce accordingly the hours included in the lodestar calculation.
Royal Crown objects to the 5.5 hours claimed for preparation of the complaint, and argues that drafting a "form complaint" should have taken no more than one hour. This objection is without merit because a complaint is fact-specific and should be prepared with some care. There is no evidence that the complaint was copied from a form. The fact that Royal Crown thinks Hill could have drafted it in a shorter time is insufficient proof that the actual hours expended were excessive.
Royal Crown also objects to the 72.8 hours claimed for preparation of pretrial pleadings and motions. Royal Crown suggests that its attorney's time of 34.6 hours is a "more reasonable amount." However, the hours claimed by defense attorneys are not determinative of the reasonableness of plaintiffs' attorneys' hours in Title VII cases; because plaintiffs carry the burden of proof in these cases and do not have access to the business records of defendant corporations, they must rely more heavily on pleadings than defendants do. Hill's attorney states that she drafted a motion to compel because of the difficulty in getting responses to her discovery and repeated delays in setting up Royal Crown's depositions. She also drafted all of the jointly filed pleadings, including the parties' planning-meeting report, the settlement-conference notice, the proposed joint pre-trial order and stipulations, and the joint motion for entry of judgment. Her time spent on pre-trial pleadings would therefore necessarily exceed Royal Crown's counsel's.
Hill's counsel further specifies the pleadings that occupied the remainder of this portion of her hours as a response to a dismissal motion, two summary-judgment motion responses (one on the merits, one not), Rule 26 disclosures and supplemental disclosures, discovery responses, a motion to preclude use of deposition testimony that was not filed, witness and exhibit lists, proposed jury instructions, proposed voir dire, the pre-trial brief, and a motion in limine. The court finds that the hours claimed for this work are reasonable and therefore these hours will be allowed.
Royal Crown next objects to the 8.1 hours claimed for telephone calls and correspondence to and from Royal Crown's counsel's office, pointing out that Royal Crown's counsel billed his client only 1.8 hours for the same activities. However, Hill's attorney states that she has counted 17 telephone calls she made to Royal Crown's counsel's office in which she spoke with his secretary because he was unavailable, seven other calls his secretary made to her, and seven letters she wrote to Royal Crown's counsel concerning the case. She adds that many of her calls were made necessary by Royal Crown's counsel's frequent changes to the previously agreed-upon deposition schedule, as well as by the failure of Royal Crown's counsel's staff to serve her with copies of various pleadings until she requested them. However, the fee motion does not itemize the amount of time spent on these telephone calls and letters, so there is no basis for the court to judge whether Hill's counsel actually spent 6.3 more hours communicating with Royal Crown's counsel's office than he did with hers. The court will therefore allow only 4 hours for this entry.
Royal Crown objects to 42 of the 56 hours spent by Hill's attorneys in deposition preparation, travel to and from three depositions in Dothan, and review of transcripts in preparation for trial. The depositions themselves took 8.5 hours. The fact that Royal Crown's counsel billed less time to his client for these depositions is not determinative, but the court agrees that charging for 47.5 hours of work beyond the depositions themselves, which took only slightly more than one day, is excessive. This entry will be reduced to 30 hours.
Royal Crown objects to the 11.4 hours of legal research on the basis that it is unquantified and the case involved "rudimentary" facts and legal theories. Hill's attorney has responded by specifying the legal issues she researched, which appear to the court to have been relevant to this case. However, the time is unquantified and the case, as previously discussed, was not complex. This entry will be reduced to 6 hours.
Royal Crown objects to the 24 hours claimed for trial preparation of Hill and her witnesses, including initial meeting, Hill's and witnesses' backgrounds, conferences before trial, and travel time to and from Dothan. The basis stated is that it is unreasonable for counsel to spend 18 hours meeting with witnesses whose trial testimony took only 10-15 minutes. The court disagrees; Hill's counsel reasonably interviewed a number of witnesses and, at the same time, made an effort not to offer redundant testimony by calling all of those witnesses at trial. Hill's counsel also points out that she had to spend extra time to prepare witnesses who all were unfamiliar with and frightened of the trial process, as well as Hill, whose fiance unexpectedly died just before trial. This entry is therefore not unreasonable and will be allowed.
Royal Crown objects to the 3.7 hours claimed for conferences with colleagues to discuss strategy regarding trial and problems getting discovery responses from defendant, on the basis that Royal Crown "should not have to pay for counsel's education on how to try her first jury case." Royal Crown's counsel does not specify how the time spent discussing trial strategy and problems getting discovery responses is unreasonable except to object that his client does not want to pay for it. This objection mischaracterizes Hill's counsel's description of the time claimed and is legally insufficient to prove that the time claimed is excessive.
Royal Crown also objects to some of the hours claimed by Hill's co-counsel Gene Spencer, essentially on the basis that Spencer did not voice objections, ask questions, or otherwise vocally participate in the depositions or trial. However, it is reasonable to assume that Spencer provided useful assistance as co-counsel even without vocally participating. Hours claimed by two attorneys participating in the same event or activity are only subject to a claim of redundancy "if the attorneys are unreasonably doing the same work." American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (citation omitted). Spencer's activities during the deposition and trial included suggesting questions for lead counsel to ask, consulting with and advising lead counsel at many junctures, assisting with jury selection, and making arguments to the court in chambers. The time he claims appears reasonably necessary and non-duplicative of lead counsel's efforts, and the court will therefore allow it.
The court will therefore allow a total of 277.4 hours.
II. PREVAILING MARKET RATE
"A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Van Alstyne seeks a rate of $250.00 per hour and Spencer seeks a rate of $150.00 per hour.
To determine the prevailing market rate, the court will consider the following Johnson factors: customary fee; the novelty and difficulty of the questions; skill required to perform the legal services properly; the experience, reputation, and ability of the attorneys; time limitations; preclusion of other employment; undesirability of the case; nature and length of professional relationship with the client; and awards in similar cases.
Customary Fee: Royal Crown contends that the rate of $250 per hour requested by Van Alstyne is excessive because this was her first jury trial. Royal Crown does not appear to challenge Spencer's rate of $150 per hour. Van Alstyne defends her request on several grounds. First, she has has been awarded fees at the $250 rate by federal district judges of the Middle District of Alabama. She has also charged paying clients $250 per hour and has settled other cases for rates between $225 and $250 per hour. She adds that the customary fee charged by other employment discrimination lawyers with comparable experience in the Birmingham area range from $200 to $350 per hour. Finally, she attaches several affidavits from other attorneys who attest that on the basis of the difficulties inherent to representation of employment discrimination plaintiffs, van Alstyne's skills and experience, and the requirements of this particular case, her requested $250 rate is reasonable and appropriate.
The court appreciates the difficulties of representing plaintiffs on a contingent-fee basis in employment discrimination cases in this state, and the public policy concerns that inform the setting of attorneys' fees in civil-rights cases. However, the determination of attorneys' fees must be guided by the nature and complexity of the case at bar. This case, while presenting several issues that made trial challenging for Hill's attorneys, did not involve complex issues of fact or law. It was a fairly straightforward Title VII case with a single plaintiff and took less than two days to try. The court finds that an appropriate rate is $200 per hour.
Novelty and Difficulty of the Questions: As stated, Royal Crown contends, and Hill agrees, that the case did not pose any novel questions.
Skill Required to Perform the Legal Services Properly: Employment-discrimination cases require skilled attorneys. The attorneys performed the work that was required in a professional manner.
Experience, Reputation, and Ability of the Attorney: Van Alstyne has a good reputation and has extensive experience in civil-rights litigation, including employment-discrimination cases, though this was apparently her first jury trial. Spencer also has a good reputation and has considerable experience with employment-discrimination litigation.
Time Limitations: Hill's attorneys do not claim any adjustment on this basis.
Preclusion of Other Employment: Hill's attorneys do not contend that the representation here caused them to lose other opportunities.
Undesirability of the Case: In general, civil-rights litigation is seen "as very undesirable because it stigmatizes an attorney as a `civil rights lawyer' and thus tends to deter fee-paying clients, particularly high-paying commercial clients, from seeking assistance from that lawyer." Stokes v. City of Montgomery, 706 F. Supp. 811, 815 (M.D. Ala. 1988), aff'd, 891 F.2d 905 (11th Cir. 1989) (table).
Nature and Length of Relationship with Client: Hill's attorneys do not claim any adjustment on this basis.
Awards in Similar Cases: "The reasonableness of a fee may also be considered in the light of awards made in similar litigation within and without the court's circuit." Johnson, 488 F.2d at 719. This court has awarded non-contingent fees in the range of $125 to $290 an hour in other civil-rights cases. See, e.g., Black v. M.G.A., Inc., 51 F. Supp.2d 1315, 1322 (M.D. Ala. 1999); White v. Alabama, 1998 WL 60938, at *12 (M.D. Ala. Feb. 4, 1998); Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1498 (M.D. Ala. 1996).
III. LODESTAR CALCULATION
The court is of the opinion, based on the Johnson criteria, that the current market rate for work performed by attorneys of similar knowledge and experience in similar cases is $200 for van Alstyne and $150 for Spencer. Therefore, the court finds the lodestar to be as follows:
Attorney Rate Hours Totals
van Alstyne $200.00 234.4 $46,880.00
Spencer $150.00 43.0 $6,450.00
Total $53,330.00
IV. ADJUSTMENT
"Where a plaintiff has obtained excellent results, h[er] attorney should recover fully a compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. Although Hill was significantly successful, the court does not believe that an adjustment upward is warranted.
Finally, the court recognizes that, in applying the Johnson factors, it is possible to be so focused on the details that you miss the big picture. A court's duty in determining reasonable fees is not simply to recite the Johnson factors, plug in the data, and spit out the result. The total amount awarded must still bear some overall reasonable relationship with the result obtained by the prevailing party.
The court recognizes that Hill's $9,493.29 damage award is less than the $53,330.00 in attorney's fees she is now due to recover. "However, while the amount of damages a plaintiff recovers is certainly relevant, attorney fees need not be limited to a portion of the damages recovered."Curry v. Contract Fabricators Incorporated Profit Sharing Plan, 744 F. Supp. 1061, 1071 (M.D. Ala. 1988) (Thompson, J.) (citing Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686 (1986)) aff'd, 891 F.2d 842 (11th Cir. 1990). "[S]uccess in a civil rights case `cannot be valued solely in monetary terms.' . . . [W]hen determining the degree of success obtained by a civil rights plaintiff, a court must be careful not to place `undue emphasis on the modest money damages that were found by the jury' because successful civil rights actions vindicate a public interest." Villano v. Boynton Beach, 254 F.3d 1302, 1305-06 (11th Cir. 2001) (quotingRiverside, 477 U.S. at 574, 106 S.Ct. at 2694; Williams v. Thomas, 692 F.2d 1032, 1038 (5th Cir. 1982)).
Nevertheless, this court is also guided by the principles articulated in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566 (1992). In Farrar, the plaintiffs had sought $17 million in compensatory damages at trial against multiple defendants for violations of constitutional rights but recovered only nominal damages against one defendant. The trial court awarded the plaintiffs $280,000 in fees plus expenses and interest under 42 U.S.C.A. § 1988. The Supreme Court addressed the reasonableness of the fee award in light of the relief obtained by the plaintiffs and held that the plaintiffs could not recover attorneys' fees. Id.
In so deciding, Justice Thomas, in an opinion joined by three justices and concurred with by Justice O'Connor, reiterated Hensley's holding that "the degree of the plaintiff's overall success goes to the reasonableness of a fee award" and that "`the most critical factor' in determining the reasonableness of a fee award `is the degree of success obtained.'" Id. at 114, 113 S.Ct. at 574. Where a plaintiff's purpose is the recovery of damages, Justice Thomas admonished, "a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought." Id. at 114, 113 S.Ct. at 575. And where the amount and nature of damages awarded are small in comparison to what the plaintiffs sought, "the court may lawfully award low fees or no fees." Id. at 115, 113 S.Ct. at 575. Justice Thomas concluded that, because the plaintiffs had sought compensatory damages but, due to their failure to prove an essential element of their claim, obtained only nominal damages, they were entitled to no fees at all. Id. Justice O'Connor, concurring with Justice Thomas in the judgment, explained that, in her view, the plaintiffs were not entitled to fees because theirs was a purely technical or Pyrrhic victory. Id. at 117, 113 S.Ct. at 576.
While the plaintiffs in Farrar obtained only a one-dollar nominal-damages award against one defendant, Hill has obtained a judgment in the amount of $9,493.29 in satisfaction of her Title VII claim. Furthermore, this recovery, because it includes punitive damages, is greater than the total amount of backpay Hill sought. Clearly, then, Hill has obtained a significantly greater degree of success than did the plaintiffs in Farrar. The court accordingly finds that an award of no fees or extremely low fees, as permitted under certain circumstances byFarrar, is not warranted in this case.
Nevertheless, the court must assess Hill's level of success. In her concurrence, Justice O'Connor suggested three factors that courts should consider in making the assessment: first, the difference between the amount recovered and the damages sought; second, "the significance of the legal issue on which the plaintiff claims to have prevailed"; and, third, whether the litigation accomplished a "public goal." Id. at 121-22, 113 S.Ct. at 578-79.
The court first will compare the relief sought with Hill's recovery. Here, Hill sought compensatory damages (including back pay and recovery for emotional distress) and punitive damages; Hill did not seek instatement. As noted earlier, she obtained $9,493.29 in damages. However, because Hill did not demand a specific amount in her complaint, it is difficult to assess the amount of monetary damages she actually sought.
However, Hill fully recovered, that is, established liability, on the one claim she asserted: gender discrimination under Title VII. She also recovered all the backpay she sought, as well as limited punitive damages; she failed on only her request for emotional-distress damages. In addition, it must be noted that $9,493.29 recovery does not convey the fully the import of Hill's victory. Hill's backpay recovery was kept reasonably low only because she was conscientious is seeking other employment to mitigate her damages. Moreover, and more importantly, with the jury's finding of gender discrimination, Hill was also presumptively entitled to instatement. Nord v. United States Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985). The only reason she did not receive this injunctive relief is that she did want it. Thus, the relief in this case was limited not because Royal Crown necessarily prevailed on issues on the merits but because Hill was conservative in what she wanted.
However, because Hill did not recover any damages for emotional distress and yet still recovered most of what she sought, the court will reduce her recovery by only 10%, that is, her fee request will be reduced by $5,333.00, for a total of $47,997.00 ($53,330.00 less $5,333.00).
The other factors suggested by Justice O'Connor do not alter the court's assessment of Hill's level of success. As noted above, Justice O'Connor suggests that the court consider the significance of the legal issue upon which the plaintiff prevailed. This consideration aids assessment of a plaintiff's success where the plaintiff has lost some claims but won others. Here, due to the entry of judgment as to the one claim at issue, Hill prevailed on all liability issues before the court. Thus, this consideration does not alter the court's analysis in this case.
The court must also consider whether the litigation advanced a `public goal.' Not only did Hill vindicate one of her own civil rights, her suit vindicated the public's interest in women being able to enjoy employment without facing discrimination based on their gender. As such, although Hill's award of attorney's fees is greater in monetary tens than her damages award, the court finds that the fee award to be reasonable given that Hill vindicated a civil right important both to her personally and to society as a whole. Villano, 254 F.3d at 1306 ("In this circuit, we have previously explained that a court that reduced a § 1988 award would have erred had it ignored the fact that the plaintiff in a civil rights action benefitted the public interest by vindicating her constitutional rights." (citation omitted)). The court believes that Hill's achievement, looked at in its entirety, bears an overall reasonable relationship to the fee awarded. A further downward adjustment is not warranted.
V. EXPENSES
Hill also seeks expenses incurred from this litigation. With the. exception of overhead office expenses normally absorbed by the attorney, all reasonable expenses incurred in case preparation, during the course of litigation or as an aspect of settlement of the case, may be taxed as costs; the standard of reasonableness is to be given a liberal interpretation. NAACP v. City of Evergreen, 812 F.2d 1332, 1337 (11th Cir. 1987); Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983); Black, 51 F. Supp.2d at 1326.
Royal Crowns make no objection to the costs requested by Hill's counsel, and the court will award costs of $3,298.00.
VI. CONCLUSION
Accordingly, it is ORDERED that plaintiff LaPatria Hill's motion for attorneys' fees and costs, filed May 3, 2002 (doc. no. 47), is granted to the extent that plaintiff Hill shall recover costs in the amount of $3,298.00 and attorneys' fees in the amount of $47,997.00 from defendants.