Opinion
Case No. 2:06-cv-0796-WKW [wo].
July 15, 2008
MEMORANDUM OPINION AND ORDER
This cause is before the court on the defendants' Motion to Tax Costs and Award Attorney's Fees (Doc. # 39) filed on March 7, 2008. The plaintiff responded (Doc. # 41) in opposition on March 24, 2008, and the defendants replied (Doc. # 42) on April 7, 2008. For the reasons set forth below, the defendants' Motion to Tax Costs and Award Attorney's Fees (Doc. # 39) is due to be granted in part and denied in part.
I. FACTS AND PROCEDURAL HISTORY
On September 5, 2006, the plaintiff filed a complaint in this court bringing claims of race and sex discrimination under Title VII of the Civil Rights Act of 1964 against J.F. Ingram State Technical College ("Ingram"), and a 42 U.S.C. § 1983 claim against Defendant Douglas Chambers ("Chambers") and Defendant James Wilson ("Wilson") for violating her right to be free of race and sex discrimination in her employment. On February 26, 2008, the court determined the plaintiff had not established any prima facie claims and granted the defendants' summary judgment motion as to each and every claim brought by the plaintiff. (Doc. # 37.) Within ten days, the defendants moved to tax costs and award attorney fees. (Doc. # 39.)
II. DISCUSSION
Section 1988 governs the award of attorney fees for cases brought pursuant to § 1983: "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The Supreme Court has found both prevailing plaintiffs and defendants may collect attorney fees under § 1988 but has imposed a more stringent standard on defendants seeking to recover fees. See Christianburg Garment Co. v. EEOC, 434 U.S. 412, 416, 421 (1978). For a prevailing defendant to recover attorney fees, the court must find that "[the plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Id. at 422. A defendant is not entitled to attorney fees merely because the plaintiff did not prevail; such a standard "would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of [§ 1983]." Id.
While Christainburg involved a claim for attorney fees under Title VII, the Supreme Court has indicated that this reasoning also applies to claims for attorney fees under § 1988. Hughes v. Rowe, 449 U.S. 5, 14 (1980).
While the frivolity determ ination is made on a case-by-case basis, the Eleventh Circuit has emphasized that the following factors are important: "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits." Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (1985). The Eleventh Circuit has emphasized that "`it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.'" Id. at 1188 (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978)). A court is likely to find "frivolity" when the court has "decided in the defendant's favor on a motion for summary judgment or a Fed.R.Civ.P. 41(b) motion for involuntary dismissal. In these cases, the plaintiffs did not introduce any evidence to support their claims." Id. at 1189.
A. Determining Frivolity
The first factor weighs in favor of awarding attorney fees because the plaintiff failed to establish a prima facie claim of sex discrimination under Title VII or a prima facie claim of discrimination under § 1983. ( See Doc. # 37.) As for the Title VII claim, the overwhelming majority of the claimed discriminatory pay decisions occurred well outside of the EEOC charging period, which negated the need for any analysis of them. ( Id. at 5.) In fact, only one pay decision took place during the charging period, and this was a promotion with an annual increase in salary of $2,852. As to this one pay decision, the plaintiff failed to identify any similarly situated comparators. Her one proffered comparator was much more highly educated, continued to teach classes and, as the plaintiff admitted, she did not perform all of the same duties as he had. ( Id. at 6.) For her § 1983 claims, she proffered one additional comparator, but he too was not similarly situated because he assisted a different dean, he had different job duties and responsibilities, and there was no evidence presented (or even alleged) as to the amount of the pay difference. ( Id. at 8.) Furthermore, the plaintiff failed to provide citations to support her conclusory statements and "present[ed] no information as to what [the proffered comparator's] job duties were except to acknowledge they were not similar to hers." ( Id. at 9.)
The second factor also weighs in favor of awarding attorney fees because the defendants never offered to settle the case. Defense counsel has provided an affidavit to this effect, (Beam Aff. ¶ 20), and the issue has not been disputed by the plaintiff. Finally, the last factor also weighs in favor of awarding attorney fees because the plaintiff's claims were dismissed at the summary judgment stage prior to the need of holding a trial.
Therefore, all three factors weigh in favor of a finding that the plaintiff's claims were frivolous and in favor of awarding attorney fees to the defendants as the prevailing parties. However, now that it has been determined that the plaintiff's claims were frivolous, the next task is to determine the point when they became so.
B. Determining When the Claims Became Frivolous
On May 29, 2007, during the course of this litigation, the United States Supreme Court issued an opinion that had a major impact on the plaintiff's claims. See Ledbetter v. Goodyear Tire Rubber Co., ___ U.S. ___, 127 S. Ct. 2162, 2169 (2007). Its impact is underscored by the defendants' admission that the case "required [defense counsel] to develop a revised deposition and summary judgment strategy." (Doc. # 42, at 3.) Indeed, the defendants cited the decision in their summary judgment brief, (Doc. # 25-2, at 29-34), and the court relied heavily upon Ledbetter in determining that the vast majority of the alleged discriminatory acts were time barred. (Doc. # 37, at 4.) It is also notable that the plaintiff completely failed to rebut the time bar arguments based on the Ledbetter decision and failed to even mention the decision in her response brief in opposition to summary judgment. ( See Doc. # 31.)
The reason this omission is notable is because it implies the plaintiff had no basis for opposing summary judgment on these grounds. See Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1423 (11th Cir. 1996) (affirming an award of attorney fees where summary judgment was unopposed by the plaintiff "precisely because they had no basis for doing so, that is, because Plaintiff's claim was not `meritorious enough to receive careful attention and review'" (quoting Walker v. NationsBank of Fla., 53 F.3d 1548, 1559 (11th Cir. 1995)).
As stated above, "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christianburg, 434 U.S. at 422 (emphasis added). Therefore, the question becomes, when did the plaintiff's claims clearly become frivolous? The defendants argue that "[i]t was unreasonable for [the plaintiff] to continue to litigate the vast majority of her claims after [ Ledbetter] was released." (Doc. # 42, at 2.) The court declines to take this approach for several reasons.
First, it is impractical to expect attorneys to have knowledge of a Supreme Court decision from the exact moment it is released. Obviously, the longer a relevant decision has been released, the greater the expectation for the attorneys to have knowledge of it. Gauging how much time should pass before drawing a temporal line in the sand is impossible to do without being somewhat arbitrary. Therefore, rather than picking a day out of the blue for purposes of holding a party accountable for knowledge of a recent decision that changes or clarifies the applicable law, the court finds that in this instance the more appropriate course of action is to measure from the time when the decision was unambiguously brought to the plaintiff's attention: August 30, 2007, the date the defendants filed their summary judgment motion and accompanying brief.
Using the date of the defendants' summary judgment motion is further warranted by the language of the Christianburg standard, which contemplates a definitive knowledge of frivolity, i.e., not after it became frivolous, but only after it clearly became so. After the defendants filed their summary judgment brief, which presented the plaintiff's employee history in a timeline and contained lengthy arguments that the claims were barred by Ledbetter, it was then clear that the plaintiff's claims were frivolous.
Another reason for not finding the plaintiff's claims frivolous from the date when Ledbetter was released is that one allegedly discriminatory pay decision did survive the time bar. However, after surviving the time bar trap that caught so many of her other alleged wrongs, the claims based on this sole pay decision quickly withered from the complete lack of a suitable comparator, as made clear in the defendants' summary judgment brief. Therefore, while it is arguable that the plaintiff's claims were frivolous from the outset, there is no doubt in the face of Ledbetter — and especially the defendants' summary judgment brief — that the claims were unreasonable and without foundation. For the reasons set forth above, the court finds the plaintiff's claims became clearly frivolous as of the date the defendants' summary judgment brief was filed: August 30, 2007.
C. Calculation of Attorney Fees
Having determined the point in the litigation at which the plaintiff's claims became frivolous, the court must now engage in the familiar "lodestar" method of determining reasonable attorney fees. First, the court must find the "lodestar" by "multiply[ing] the number of hours reasonably expended on the litigation by the customary fee charged in the community for similar legal services." Ass'n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006). "The court may then adjust the lodestar to reach a more appropriate attorney's fee." Id. "The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). This burden includes setting out time expenditures "with sufficient particularity so that the district court can assess the time claimed for each activity." Id.
The court first examines the hourly 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." Id. at 1299. Defense counsel billed their clients at a rate of $125 per hour for this case, and the defendants have submitted affidavits that this hourly rate is reasonable for attorneys with similar experience defending employment discrimination cases in the Montgomery, Alabama area. (Doc. # 42, at 6-7.) Indeed, the affidavits suggest higher fees of between $185 to $225 per hour are reasonable in the area for this type of service. (Weller Aff. ¶ 6; Beam Aff. ¶ 1.) Understandably, the plaintiff has not challenged defense counsel's hourly rate as unreasonable; accordingly, this court, following the practice of other courts in this district, applies the requested hourly rate "for purposes of this fee petition only." Anderson v. Unum Life Ins. Co. of Am., No. 01-894, 2007 WL 604728, at *9 (M.D. Ala. Feb. 22, 2007) (Dement, J.) (internal quotation marks and citation omitted).
Similarly, the plaintiff does not challenge the paralegal rate of $50 per hour, which the court finds to be a reasonable rate for the Montgomery, Alabama area.
Next, the court must determine if the number of hours defense counsel expended was reasonable. The court must exclude those hours that are "excessive, redundant or otherwise unnecessary." Norman, 836 F.2d at 1301 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). "Objections and proof from fee opponents" should be "reasonably precise" because "[g]eneralized statements that the time spent was reasonable or unreasonable of course are not particularly helpful and not entitled to much weight." Norman, 836 F.2d at 1301.
Although they ultimately billed their clients a total of 487.6 hours for litigating this case, from the time their summary judgment motion was filed defense counsel only billed their clients 98.7 hours, which is based on the work of two attorneys and two paralegals. ( See Doc. # 39-3, at 6-18.) As identified by defense counsel, the work performed during this time period falls into three general categories of time related to (1) miscellaneous pleadings, (2) summary judgment, and (3) trial preparation. ( See Beam Aff. ¶ 12.) Services provided under the category of miscellaneous pleadings included reviewing the amended scheduling order, working on the proposed pretrial order, drafting the bill of costs, and drafting affidavits for the motion to award attorney fees. Services provided under the category of summary judgment included analyzing the plaintiff's response to summary judgment and researching and drafting a reply brief. Services provided under the category of trial preparation included interviewing witnesses, analyzing and assembling documents, analyzing depositions, researching and analyzing jury instructions, analyzing and preparing motions in limine, and preparing general trial strategy. (Beam Aff. ¶ 12.)
Defense counsel provided a courtesy copy of their motion and supporting materials to the court and plaintiff's counsel that color-coded each line entry of their bills by its category.
The Supreme Court has long recognized that "the `reasonable attorney's fee' provided for by [§ 1988] should compensate the work of paralegals, as well as that of attorneys." Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989). However, it is recoverable only so long as the work performed is that in the nature traditionally performed by attorneys and not secretarial in nature. See id. at 288 n. 10 ("Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them."); Sowers v. Kemira, Inc., 701 F. Supp. 809, 828 (S.D. Ga. 1988). Here, the two paralegals only claim a total of 3.3 hours. Of that time, 1.7 hours consist of preparing tables of authority, tables of content and electronically filing the reply brief. ( See Doc. # 39-3, at 14.) As such, these hours are purely secretarial in nature and not compensable. This leaves 1.6 hours of compensable paralegal time, divided between the miscellaneous pleading and summary judgment categories, which the court finds to be a reasonable amount.
Andrew Christman, one of the attorneys for the defendants, billed 5.9 hours working on this case during the compensable time period. These hours are broken down further as follows: 1.6 for miscellaneous pleadings, 1.9 for summary judgment, and 2.4 for trial preparation. Given the ninety-eight pages contained in the plaintiff's response brief and its attached exhibits — which turned out to be largely irrelevant after taking into account the time bar — it is not unreasonable for a second attorney to help prepare the reply brief and prepare for the upcoming trial. Christman's 5.9 hours are reasonable under the circumstances.
Matthew Beam, the primary attorney for the defendants, billed a total of 89.5 hours for working on this case during the compensable time period. These hours are broken down further as follows: 5.5 for miscellaneous pleadings, 61.3 for summary judgment, and 22.7 for trial preparation. Much of his work on miscellaneous pleadings is related to preparation of the proposed pretrial order and the motion for attorney fees. The court finds 5.5 hours to be a reasonable amount for these tasks.
Trial was set to commence two months after the reply brief was filed. On October 24, 2007, the court continued the trial to March 24, 2008. The ruling on the defendants' summary judgment motion occurred less than a month before the March trial date. Therefore, it is reasonable for the parties to have begun trial preparation because at the time they did not know the outcome of the summary judgment motion. The court finds Beam's 22.7 hours of trial preparation are not unreasonable.
The bulk of Beam's hours comes as a result of his heavy involvement in the drafting of the defendants' reply brief. However, 23.9 of his hours in the summary judgment category were lodged after the reply brief was filed on October 11, 2007. Because briefing for summary judgment was over and there is no further detail in the billing records, other than typically stating "review and analysis of documents," the court is unable to determine whether these hours are reasonable. As the fee applicant, the defendants bear the burden of demonstrating their claimed hours are reasonable, which they have not done in this instance. Therefore, the court finds that only 37.4 of Beam's summary judgment hours are reasonable, which brings his total amount of reasonable hours to 65.6.
To summarize, the court finds the following hours and rates are reasonable and allowed for the purposes of determining the lodestar: Name Hours Hours Total Hours Rate Per Total Claimed Deducted Allowed Hour Amount $9,018.00
By hours claimed, the court means all hours claimed after the summary judgment motion was made.
D. Costs
Local Rule 54.1 provides that a request for costs under Rule 54(d) of the Federal Rules of Civil Procedure "shall be filed with the Clerk within 30 days after entry of final judgment." The defendants filed their bill of costs (Doc. # 39-2) well within the thirty days and the plaintiff has not contested the amounts claimed. Therefore, the motion to tax costs is due to be granted for the total amount of $2,179.43.
III. CONCLUSION
While the court is aware of the possible chilling effect this award of attorney fees could have on future civil rights plaintiffs, it cannot ignore the clear language of the statute and the factors set forth by the Eleventh Circuit. The defendants were the prevailing party and all three factors weighed heavily in favor of an award of attorney fees. Therefore, for the reasons set forth above, it is ORDERED that the defendants' Motion to Tax Costs and Award Attorney's Fees (Doc. # 39) is GRANTED in part and DENIED in part as follows:
1. The motion to tax costs is GRANTED and the Clerk of the Court is DIRECTED to tax costs against the plaintiff in the amount of $2,179.43 in accordance with the defendants' bill of costs (Doc. # 39-2);
2. The defendants are AWARDED $9,018.00 in attorney fees against Plaintiff Bonita J. Owensby;
3. The motion to award attorney fees is DENIED in all other respects.A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. 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