Summary
setting hourly rate at $175 per hours for Wichita
Summary of this case from Fox v. Pittsburg State Univ.Opinion
Case No. 99-4184-JTM
November 13, 2003
ORDER
This matter comes before the court on the plaintiffs motion for attorney fees and an award of costs (Dkt. No. 120) and the defendant's motion for relief (Dkt. No. 148). The motions are briefed and are ripe for disposition. For the reasons stated below, the court grants in part and denies in part the plaintiffs motion for attorney fees and an award of costs (Dkt. No. 120) and denies the defendant's motion for relief (Dkt. No. 148).
I. Background
The plaintiff initially brought this action making claims of sexual harassment, disparate treatment, discriminatory discharge and retaliation pursuant to Title VH of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. All of the plaintiffs claims, except her claim of retaliation, were dismissed in an order granting in part and denying in part the defendant's motion for summary judgment. (Dkt. No. 75). See Nelson v. Kansas, No. 99-4184, 2001 WL 584436 (D. Kan. May 24, 2001).
On August 14, 2002, this case proceeded to trial on the plaintiffs claim of intentional retaliation. During the course of the trial, the defendant made a motion to dismiss for lack of subject matter jurisdiction on the basis that the defendant was entitled to Eleventh Amendment immunity. In a written order, dated August 21, 2002, the court denied the defendant's motion. (Dkt. No. 111). See Nelson v. Kansas, 220 F. Supp.2d 1216 (D. Kan. 2002). At the close of all evidence, the defendant moved for judgment as a matter of law on plaintiffs claim of retaliation, which the court denied
The jury returned a verdict in favor of the plaintiff on her retaliation claim. The verdict comprised an award of $100,000 in compensatory damages and $30,000 in back pay. Now, the plaintiff seeks attorney fees and non-taxable costs.
II. Motion for attorney fees and expenses
Pursuant to 42 U.S.C. § 2000e-(5)(k), the court may award attorneys' fees and costs to the prevailing party in a Title VII action. The plaintiffs fee and expense request can be summarized as follows:
Attorneys Fee request Expense request Goodell, Stratton, Edmonds Palmer LLP $30,182.50 $767.30 Lathrop Gage $8,995.50 $100.49 Steven Brand LLP $11,446.00 $99.00 Plaintiff $2,234.11 The defendants object to the plaintiffs request and ask the court to reduce the award accordingly.The Tenth Circuit discusses the proper procedure for determining a reasonable attorneys fee in Case v. Unified School Dist. No. 233, Johnson County, 157 F.3d 1243, 1249 (10th Cir. 1998), stating:
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.
(internal quotations omitted).
A. Timeliness of fee request
First the defendant requests the court refrain from awarding attorney fees and costs until the resolution of post-trial motions and any associated appeals. The court decided the pending post-trial motions pursuant to Dkt. No. 145. Furthermore, Fed.R.Civ.P. 54(d)(2) provides that a motion for attorney fees must be filed no later than 14 days after entry of judgment. Rule 54(d)(2) does not require or allow attorneys to wait until the resolution of appeals to seek fees. If the status of the parties is altered by an appeal, the court will reevaluate the fee request at that time.
B. 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." 157 F.3d at 1250 (citation omitted). 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 court finds the plaintiff has provided such records. In examining the fee request, the court must determine whether the plaintiff exercised billing judgment. 157 F.3d at 1250. "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended." Id.
The defendant challenges the plaintiffs request on several grounds. First, the defendant objects to the hours expended by the Goodell, Stratton, Edmonds Palmer LLP attorneys, Anne Kindling, Arthur Palmer, Steve Schwarm, and Deb Goodell [Goodell attorneys]. The defendant contends that a portion of the requested hours are excessive, unnecessary or redundant. Upon review, the court finds that it is not necessary to reduce the requested hours expended by the Goodell attorneys. The fee statement segregates 30 hours billed at $0/hour that might be duplicative. The remaining hours do not appear to be excessive or unnecessary. The court notes that the case has been ongoing since 1999 and the Goodell attorneys were appointed April 8, 2002. It is reasonable that the Goodell attorneys would require time to familiarize themselves with the case and prepare for trial.
Next, the defendant challenges the hours expended by the Lathorp Gage attorneys, Andrew Ramirez, Tammy Somogye and Eric Kraft [Lathrop attorneys]. The defendant contends that a portion of the requested hours are excessive, unnecessary or redundant. The court finds that it is not necessary to reduce the requested hours expended by the Lathrop attorneys. Mr. Ramirez identified and excluded the hours which might constitute duplicative work The remaining hours do not appear to be excessive or unnecessary.
The defendant also challenges the hours expended by the Stevens Brand attorneys, Andrew Ramirez, Scott Bloch and Bradley R. Finkeldei and legal secretary [Stevens attorneys]. The defendant contends that a portion of the requested hours are excessive, unnecessary or redundant. The Stevens attorneys concede that 4.2 hours requested were unclear, duplicative or unnecessary. The remaining hours do not appeal to be excessive or unnecessary.
Mr. Ramirez originally represented the plaintiff while working at Stevens Brand; he kept his court-appointed work upon relocating to Lathrop Gage.
The legal secretary is not named in the briefs.
The court notes that it is appropriate to award both trial counsel and former counsel attorneys' fees for work done in the plaintiffs' case. Examining the fee statement, the court will reduce the Stevens attorneys' request by 4.2 hours. The court finds the remaining requested hours expended to be reasonable.
The 4.2 hour reduction results in a reduction of $395.00 from the Stevens attorneys' request.
C. Reasonable Rates
Calculating the lodestar also requires the court to examine the hourly rate requested by the plaintiff. The defendant challenges the hourly rates requested by Mr. Palmer, Mr. Ramirez, Ms. Somogye, and Mr. Wall.
In examining the hourly rate, the court is to refer "to the prevailing market rates in the relevant community." Slum v. Stenson 465 U.S. 886, 895 (1984). The relevant community is the place where the litigation occurs. Jayhawklnvs., L.P. v. Jet USA Airlines, Inc., 1999 WL 974027 at *4 (D. Kan. 1999) (citation omitted). "The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skin and experience practicing in the area in which the litigation occurs would charge for their time." 157 F.3d at 1256. Accordingly, the court must look to the rates of lawyers of comparable skill and experience in Topeka, Kansas. In making this determination, the court may rely on its "own knowledge of prevailing market rates." Metz v. Merrill Lynch, Pierce, Fenner Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994).
In light of the court's own familiarity with the relevant rates in the community, the court reduces Mr. Palmer's request from $175/hour to $150/hour. See also Scott v. Boeing Company, 2002 WL 1378243 at * 2 (D. Kan. 2002) (reducing request for $200/hour to $150/hour for experienced lawyer); Schmidt v. Cline 171 F. Supp.2d 1178, 1182 (D. Kan. 2001) ("The court is unaware of any case in this state in which attorney's fees have been granted pursuant to § 1988 or comparable statutes at the rate of $175.00.").
Mr. Palmer expended a total of 43 hours on this case; reducing his hourly rate to $150/hour results in a reduction of $1075 to the Goodell attorneys' fee request.
The defendant objects to the hourly rates requested by Mr. Ramirez and Ms. Somogye for the year 2002. During 2002, Mr. Ramirez's request reflects a $15/hour increase; Ms. Somogye's request reflects a $10/hour increase. The court finds these requests to be reasonable; both attorneys provided adequate evidence to support the increase.
The defendant objects to the hourly rates requested by Mr. Wall because he did not provide an affidavit demonstrating that the rate is reasonable. Mr. Wall requests a $60/hour rate for work performed as a law clerk. The court finds that Mr. Wall's requested rate is appropriate.
D. Expenses
The Tenth Circuit provides:
Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount . . . Some expenses are included in the concept of attorney's fees, as incidental and necessary expenses.Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983) (overruled on other grounds). The plaintiff seeks such expenses. The defendant objects to the plaintiffs request; the defendant argues that the expenses would normally be attributed to firm overhead or included in the attorney's hourly rate. Specifically, the defendant objects to the plaintiffs request to be reimbursed for long distance phone calls, on-line research charges, copying/facsimile costs, postage/delivery charges, travel expenses, and costs paid by plaintiff.
The court finds that long distance phone calls, on-line research charges, copying/facsimile costs, postage/delivery charges are "items that are normally itemized and billed in addition to the [attorney's] hourly rate." The court further finds that the plaintiffs request regarding these items is reasonable. The court also finds Mr. Ramirez's request for travel expenses to be reasonable. The travel was connected to his representation of the plaintiff and adequately substantiated. However, certain costs requested by the Goodell attorneys were reimbursed pursuant to the bill of costs (Dkt. No. 153). These expenses include fees for witnesses and fees for exhibit photocopies. The court will reduce the Goodell attorneys' expense request accordingly.
The plaintiff requests reimbursement for costs paid by the plaintiff in the amount of $2,234.11. Again, certain expenses requested by the plaintiff were reimbursed pursuant to the bill of costs including fees for transcripts of depositions and documents. The court will reduce the plaintiffs request accordingly. The court finds the remainder of the plaintiffs request concerning fees for representation at her civil service hearing to be reasonable.
D. Adjustment of Lodestar
Finally, the defendant requests a downward adjustment of the lodestar amount because the plaintiff prevailed on only one of her multiple claims. "The lodestar is the presumptively reasonable fee." Metz v. Merrill Lynch, Pierce, Fenner Smith, 39 F.3d 1482, 1493 (10th Cir. 1994). However, the court may adjust the lodestar downward if necessary. Id. The Metz court provides:
In evaluating whether the lodestar amount should be adjusted when the prevailing party obtained only partial success, the court must consider two questions: (1) whether the claims on which the plaintiff did not prevail were related to those on which she did prevail; and (2) whether "the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award.Id. (citations omitted).
The court finds that a downward adjustment of the lodestar is not necessary. The plaintiff filed her claim pro se alleging claims that her court-appointed counsel acknowledged should not have been brought. The plaintiffs counsel did not spend time pursuing these erroneous claims and the claims they chose to pursue were related to the retaliatory discharge claim on which the plaintiff prevailed. Furthermore, the hours the plaintiffs counsel expended on the case are reasonable in light of the level of success achieved.
E. Conclusion
Based on the foregoing analysis, the court awards the plaintiff the following attorney fees and expenses as reasonably expended on this litigation:
Attorneys Fee award Expense award Goodell, Stratton, Edmonds Palmer LLP $29,107.50 $527.42 Lathrop Gage $8995.50 $100.49 Steven Brand LLP $11,051.00 $99.00 Plaintiff $550.00 III. Motion for reliefOn July 2, 2003, the court granted the plaintiffs motion to supplement request for award of attorney fees. The defendant moves for relief from the court's order, because it did not have a chance to file a response to the plaintiffs motion. The defendant filed a response contemporaneously with its motion for relief. Upon review of the response, the court finds that the defendant did not provide any evidence or authorities altering the court's earlier ruling. Accordingly, the court denies the defendant's motion for relief (Dkt. No. 148).
IT IS, THEREFORE, BY THE COURT, ORDERED this 13th day of November, that the court grants in part and denies in part the plaintiffs motion for attorney fees and an award of costs (Dkt. No. 120) and denies the defendant's motion for relief (Dkt. No. 148). Accordingly, the court awards the plaintiff attorney fees and expenses as set out above.