Opinion
NO. 7:00-CV-045-R
June 6, 2003
MEMORANDUM AND ORDER ON ATTORNEYS' FEES AND COSTS
On October 23, 2002, the District Court entered a Final Judgment in this cause following a seven week non-jury trial. On the same date and supportive of the Final Judgment, the District Court entered sixty-five (65) pages of Findings of Fact and Conclusions of Law. The Final Judgment was in favor of all Defendants and ordered that Defendants, City of Wichita Falls, Jim Berzina and Jan Stricklin, were awarded their costs and attorneys' fees. On November 5, 2002, Defendants, City of Wichita Falls, Jim Berzina and Jan Stricklin, filed their Motion for Attorneys' Fees, Bill of Costs and Request to Enter Bill of Costs. By Order dated March 7, 2003, the District Court referred Defendants' Motions for Attorneys' Fees and Costs to the undersigned for hearing, recommendation and/or determination. Plaintiff filed his Response and Objections on April 15, 2003. The matter comes now for consideration.
Defendants Coughlin, Bachman and Smith have not requested an assessment of costs or attorneys' fees.
PRELIMINARY ISSUES Entitlement
The Final Judgment entered October 23, 2002 recites "Defendants City of Wichita Falls, Jim Berzina and Jan Stricklin are entitled to costs and attorneys' fees pursuant to 42 U.S.C. § 1988." Defendants, collectively and individually, are clearly the "prevailing parties" within the scope of 42 U.S.C. § 1988. Plaintiff objects that the Findings of Fact and Conclusions of Law contain no express findings that the Plaintiff's action was "frivolous, unreasonable or without foundation." Plaintiff argues that such express findings are a condition precedent to the District Court's exercise of its discretion to allow the Defendants as the prevailing parties to recover their reasonable attorneys' fees as a part of the costs under 42 U.S.C. § 1988 and the U.S. Supreme Court's decision in Christianburg and its progeny.
first consideration per Dean v. Riser, 240 F.3d 505 (5th Cir. 2001)
Christianburg Garment Co. v. Equal Opportunity Employment Commission, 434 U.S. 412, 54 L.Ed.2d 648, 98 S.Ct. 694(1978)
The District Court's Findings of Fact and Conclusions of Law reflect that after a seven week bench trial, the Court found no evidentiary support for any of the Plaintiff's allegations in the seven separate causes of action asserted by the Plaintiff against the City of Wichita Falls and the five individual Defendants. Indeed, the Court found no causal connection whatsoever between any episodal events recited by Plaintiff and the City's termination of Plaintiff's employment. Attached hereto as Exhibit "A" is a matrix reflecting the nature of the Plaintiff's causes of action asserted against each of the Defendants, the factual findings with regard thereto made by the District Court, and the disposition thereof. Plaintiff did not prevail on a single claim or cause of action or subsidiary fact. In addition to finding the Plaintiff's testimony, and that of one supporter, to be not credible, the Court even recited that on occasions they "lied." Comparing the allegations contained in the Second Amended Joint Pre-Trial Order to the District Court's Findings of Fact and Conclusions of Law reflects that Plaintiff Schlieper did not prevail on a single factual matter or claim. Indeed, the Court found no causal connection whatsoever between episodal events recited by Schlieper as justification for his "beliefs" and the reality of his employment termination which the Court concluded was lawful. Plaintiff Schlieper was simply an at-will employee whose employment was terminated by the City of Wichita Falls with no violation of Plaintiff's civil rights and in compliance with the Texas Local Government Code with respect to firing practices within the Wichita Falls Police Department.
Derek Knowles
II Findings of Fact, Jack Schlieper, credibility finding, p. 9; Derek Knowles, credibility finding, p. 25
Under Local Rule, the Pre-Trial order contains summaries of the parties' active contentions and thereby supersedes the prior pleadings. Thus, it is the final active pleading of each party upon which the trial is conducted.
Schlieper findings, 21, 23, 24 and 25
Conclusion 8
Conclusion 1
Conclusion 2
The Court is not unmindful of the Supreme Court's admonition in Christianburg to "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." But after twenty-five trial days over seven weeks following almost two and one-half years of trial preparation, not one factual allegation or cause of action sustained, one can hardly find any case more meritless. Parsing degrees of meritlessness, groundlessness, foundationlessness and vexatiousness is a fool's errand. I find, as the District Court would find, that the Plaintiff's causes of action against Defendants, City of Wichita Falls, Jim Berzina and Jan Stricklin were meritless and were vexatious in their assertion. Accordingly, said Defendants are entitled to recoup their reasonable attorneys' fees as ordered by the Court in its Final Judgment.
Separate Entitlement Issues
Plaintiff further directed special objections to certain of the attorneys' fees on various grounds as follows:
(a) that individual Defendants Coughlin, Bachman, Smith, Berzina and Stricklin should not be entitled to fees for representation on "non-fee" claims;
(b) that the Defendants' attorneys' have not used prevailing market rates;
(c) that the Defendants' attorneys should not be compensated for duplicate work due to a change in counsel;
(d) that Defendants' attorneys should not be approved for attorneys' fees for unsuccessful motions;
(e) that Defendants' attorneys should not be compensated for attorneys' fees billed at full rates for travel time; and
(f) that Defendants' attorneys should not be compensated for attorneys' fees for duplicative work.
"Non-Fee" Causes of Action
The City of Wichita Falls, Plaintiff Schlieper's employer, was not the only party named by the Plaintiff in this lawsuit. In addition, Plaintiff brought civil rights claims and common law claims of slander, defamation and conspiracy against Berzina and Stricklin. It was the Plaintiff's choice to join the common law causes of action with the civil rights allegations, thereby causing the Defendants to be required to participate in the full preparation of the entire case. The District Court found the common law causes of action as much lacking in factual support as the claimed civil rights cause of action. Joining the groundless common law causes of action with the groundless civil rights cause of action is what makes the claims vexatious as to the individual Defendants. For the vexatiousness, attorneys' fees may be awarded. Unlike a plaintiff who may choose to assert both compensable causes of action and non-compensable causes of action, these Defendants did not have the option to opt out of the common law portions of this case. They had to stay the full course.Plaintiff's reliance on Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977) cited in his Opposition is unavailing as it has no application to this issue. Based on the foregoing, I find no justification for reducing the attorneys' fee award for any of the individual Defendants Berzina and Stricklin for their attorneys' services in defending against the meritless common law claims.
Market Rates
Plaintiff objects that the Dallas located lawyers for the Defendants should have charged only Wichita Falls local rates since the case was pending in the Wichita Falls Division. Furthermore, Plaintiff argues that since the market rates attested in the Affidavits of the respective attorneys varies from $130.00 per hour to $200.00 per hour, the Court should set a market rate of no more than $150.00 an hour which is the rate charged by Mark Price, the most experienced of all of the defense counsel. Plaintiff then attempts to compare one defense counsel to another as to experience, age, etc. trying to play one rate off against another and one region off against another. This Court has sufficient experience with attorneys' fees and rates in the Northern District of Texas in both rural and urban venues to determine that the rates and charges per hour asserted by the respective counsel for the Defendants are within the prevailing market rates in the Northern District of Texas which is the relevant community. It takes the same degree of skill, same time, same talents and same abilities for a Wichita Falls located attorney to prepare and try a federal civil case in the Dallas Division as it does for a Dallas located attorney to try such a case in the Wichita Falls Division. Pre-trial preparation in this case and pre-trial hearings (in person and by telephone) were conducted in both the Wichita Falls and Dallas Divisions throughout the preparation of this case. The trial was conducted in the Dallas Division. Accordingly, I find no reason to reduce any of the fees based upon the community location of the attorneys.Turning now toward the variation among the per hour rates in relation to the number of years of practice, it is apparent from the various affidavits that Mark Price, the most experienced of the attorneys, self-determined and submitted a lower rate than would ordinarily be deemed a reasonable rate in the private market. Throughout the litigation, he was an assistant city attorney. Similarly, attorney Julia Vasquez maintained the higher private rate of $180.00 per hour until she, too, became an assistant city attorney, whereupon she reduced her rate to $150.00 per hour to correspond to Mark Price's self-determined rate. With respect to the other attorneys, from the Karger-Key law firm, the attorneys' relative fee levels per hour reasonably related to the number of years' experience. Since the attorneys representing the individual defendants in this case made a good faith reasonable attempt to set their hourly rates within the reasonable range within their communities within their range of experience over time and in scope, I decline Plaintiff's invitation to reduce the fees to an arbitrary middle standard of $150.00 per hour. Plaintiff has failed to establish that the rates per hour are unreasonable.
Duplicate Work Due to Change of Counsel
Plaintiff complains that duplicate work was performed by counsel for Couglin, Bachman and Smith. These defendants have not sought reimbursement for their fees. This issue is moot.
Unsuccessful Motions
Plaintiff complains that Defendants charged attorneys' fees for unsuccessful motions. This Circuit's view on this matter is best summarized in its statement in Dean v. Riser as follows:
The policy considerations surrounding the law of attorney's fees for prevailing civil rights litigants demand a flexible rule. It should empower trial courts to balance the concerns for encouraging vigorous enforcement of civil rights against discouraging frivolous litigation within the specific and unique context of each individual case.
This pronouncement, however, does not mandate that the Court vet the pre-trial and trial strategies and trial work to determine which strategies and motions worked and which ones did not work, which ones were winners and which ones were losers. Plaintiff has not established that any of the attorneys purposely ran up the time on frivolous matters. Neither motions for summary judgment nor motions for directed verdict are unusual in civil rights cases of this nature. They are part and parcel of conscientious and vigorous representation. Plaintiff has failed to establish any justification for reducing the hours claimed for these matters.
Travel Time
Plaintiff's counsel maintained offices in Dallas. The lawsuit was filed in the Wichita Falls Division. The judge to whom this case was assigned maintains offices in Dallas. The Magistrate Judge to whom this case was assigned maintains offices in Wichita Falls. Plaintiff had moved from Wichita Falls. Plaintiff, as well as defense counsel, all anticipated that they would have to travel. Travel time between the Wichita Falls Division and the Dallas Division is generally two hours. Seldom is that travel time totally non-productive. Plaintiff wholly failed to identify or quantify the travel hours to which he made reference in his Motion. The Court declines to parse the attorneys' fees bills to locate the travel time to make such a reduction, even if justified.Duplicative Work
Plaintiff complains that some attorneys performed "duplicative work."
A. Lu Pham — Plaintiff objects that Lu Pham duplicated other attorneys' work with regard to reviewing Dr. Wayne Ruhter's deposition in preparing for his direct examination which was ultimately conducted by Mrs. Lynn. Lu Pham did the work; Mrs. Lynn used the work. The work was necessary. How attorneys divide up the work between themselves and their assistants is a matter of choice. Objection as to Pham is overruled.
B. Allyson Beckman — Plaintiff objects that Allyson Beckman reviewed Ruhter's report and assisted in preparing him for trial testimony. Allyson Beckman did the work; Mrs. Lynn used the work. Ruhter did testify. Ruhter did testify effectively. How attorneys divide work between themselves and their assistants is not subject to Court second guessing. Objection as to Beckman is overruled.
C. Julia Vasquez — Plaintiff objects that Julia Vasquez worked with Ruhter for the preparation of his report and attended his deposition. She did the work; he prepared the report; they took his deposition and the deposition of Dr. Self. Plaintiff has made no showing whatsoever that such work was not customary, reasonable, usual or that it was excessive. Objection as to Vasquez is overruled.
D. Mark Price — Plaintiff objects that Mark Price attended Dr. Self's deposition and Dr. Ruhter's deposition. Mark Price represented the City of Wichita Falls. Julia Vasquez and the other attorneys at Karger-Key represented other defendants. An attorney's attendance at expert depositions is expected, usual and not frivolous or oppressive. Objection as to Price is overruled.
E. Kathy Teel — Plaintiff objects that Kathy Teel's work was out-of-court research with regard to defamation elements that related to the libel and slander claims of Plaintiff against Coughlin, Bachman and Smith which were common law counts only. A review of Kathy Teel's billing worksheet attached to her Affidavit reflects only three hours out of 62.90 hours as being related to the libel and slander issues. Kathy Teel's work was performed in two essential time periods: May 8 through June 28, 2002 and July 1 through July 28, 2002. During the first time period, Ms. Teel's work was performed while Bettye Lynn of the Karger-Key firm was in the courtroom during the trial. The second portion of her work was performed incident to preparation of post-trial briefs and suggested findings of fact and conclusions of law. Out of the total of 62.90 hours, only three hours clearly related to libel and slander, common law issues, to which not only individual Defendants Coughlin, Bachman and Smith were targets, but also Defendants Berzina and Stricklin. Accordingly, Plaintiff has wholly failed to establish justification for reduction of the hours or rate of Kathy Teel's work. Objection as to Teel is overruled.
F. Allyson Beckman — Plaintiff objects to Allyson Beckman's time as being duplicative of the work Julia Vasquez performed prior to Vasquez joining the staff of the City Attorney of Wichita Falls. Comparing Allyson Beckman's billing worksheet to that of Vasquez, it appears Allyson Beckman commenced her work on this case on November 2, 2001 after Vasquez had joined the staff of the Wichita Falls City Attorney. She had a meeting with Vasquez and Betty Springer relating to Plaintiff's Motion for Summary Judgment. Thereafter, the Vasquez and Beckman billing worksheets show no duplicative time except the following: January 7, 2002; February 7, 2002; May 7, 2002; May 21, 2002; July 26, 2002. A review of the entries for each of these dates reflects that January 7 was a coordination meeting and the other entries reflect only telephone calls between Vasquez and Beckman. These matters hardly reflect duplicative effort of the nature claimed by the Plaintiff. The Court declines to reduce the hours for supposed duplicative efforts of Allyson Beckman.
G. Mark Price — The City of Wichita Falls, Mr. Price's client, was the target Defendant. Defendants Berzina and Stricklin, by virtue of their capacities with the City of Wichita Falls, were the City's paramount witnesses. Other witnesses in the case — Coughlin, Bachman and Smith, were employees of the Police Department and as named Defendants were probable witnesses. Good lawyers spend lots of time with their witnesses and any witnesses that may be called and whether or not they have been joined in civil rights claims. Plaintiff has wholly failed to demonstrate that Mark Price's conferencing with these parties and witnesses was excessive. Plaintiff's Objection to the full rate of Mr. Price for out of court work is global and unsupported. Travel time billings are discussed above.
H. Julia Vasquez — None of Plaintiff's objections concerning the hours of Julia Vasquez have merit and are, therefore, overruled.
I. Bettye Lynn — Plaintiff's objections concerning the hours submitted by Bettye Lynn are unsupported and, therefore, overruled.
Assessment of Hours and Rates
With respect to City of Wichita Falls, I find that attorney Mark Price expended 891.5 hours in vigorous preparation for and conducting the trial and post-trial activities on behalf of his client. I find that attorney Julia Vasquez spent 955 hours from September 12, 2001 through June 29, 2002 in the diligent preparation for, conducting the trial of, and conducting post-trial matters on behalf of the City of Wichita Falls. I find that Mark T. Price's $150.00 per hour rate is fair and reasonable in the Wichita Falls Division of the Northern District of Texas during the time period of his representation of the City of Wichita Falls in this case. I find that Julia Vasquez' hourly rate of $150.00 is a fair and reasonable rate for her services in the Wichita Falls Division of the Northern District of Texas in this case during the time period she assisted in the representation of the City of Wichita Falls. Based upon the foregoing hours and rates, I find that the City of Wichita Falls is entitled to be reimbursed the amount of $276,975.00 for its fair and reasonable attorneys' fees in defending itself against the claims of the Plaintiff in this case.
With regard to the attorneys' fees sought by Berzina and Stricklin, I find that Bettye Lynn fairly and reasonable expended 830.5 hours of her time in reasonably representing them in preparation for trial, trial and post-trial activities. I find that her $200.00 per hour rate is fair and reasonable in light of her experience, age, responsibility, the nature of the case and the quality of her work. I find that Allyson Beckman fairly and reasonably expended 1,042.35 hours of her time in the representation of Berzina and Stricklin with respect to the claims against them by Plaintiff. I find that her $130.00 per hour rate is reasonable in the Wichita Falls Division of the Northern District of Texas.
I find that Lu Pham fairly and reasonably expended 29.8 hours of her time in representing Defendants Berzina and Stricklin with regard to the claims against them by Plaintiff. I find that Lu Pham's billing rate of $200.00 per hour is a fair and reasonable rate in the Wichita Falls Division of the Northern District of Texas during the time period of her representation.
I find that Kathy Teel fairly and reasonably expended 62.9 hours of her time in representing Defendants Berzina and Stricklin with regard to the claims against them by Plaintiff. I find that Kathy Teel's billing rate of $1850.00 per hour is a fair and reasonable rate in the Wichita Falls Division of the Northern District of Texas during the time period of her representation.
I find that Martha M. Rose fairly and reasonably expended 2.0 hours of her time in representing Defendants Berzina and Stricklin with regard to the claims against them by Plaintiff. I find that Martha M. Rose's billing rate of $185.00 per hour is a fair and reasonable rate in the Wichita Falls Division of the Northern District of Texas during the time period of her representation.
I find that Julia Vasquez, while a partner at Karger-Key, fairly and reasonably expended 536.2 hours of her time in representing Defendants Berzina and Stricklin with regard to the claims against them by Plaintiff. I find that Vasquez' billing rate of $180.00 per hour is a fair and reasonable rate in the Wichita Falls Division of the Northern District of Texas during the time period of her representation.
As reflected in the Attorney Fee Analysis Matrix attached hereto, the product of the total number of hours times the respective attorney's rates totals $416,088.00. I find that a total of $416,088.00 in attorneys' fees shall be assessed against Plaintiff with respect to Defendants, Berzina and Stricklin.
Court Costs
Defendants submitted full documentation with respect to the identification and amounts of their requested costs and expenses which Defendants seek to be assessed against Plaintiff. Many of the costs, though fully documented as legitimate litigation expenses, are not recoupable as costs. Plaintiff has objected to the assessment of costs and fees beyond the express scope of 28 U.S.C. § 1920. Plaintiff's objection as to court reporter fees is sustained as there was no showing that the depositions were used during the trial of the case or other than for discovery. The printing costs and photocopy charges appear to be in-house copying of documents and not within the scope of "papers necessarily obtained for use in the case." Lodging expenses, though significant ($29,730.09), are not recoverable as costs under 28 U.S.C. § 1920. Witness fees totalling $845.40 are allowable and need not be reduced by the 100-mile limitation cited by Plaintiff. Ruhter expert fee of $24,051.89 is not recoverable. Of the costs sought, only the witness fees are recoverable. Accordingly, $845.40 of witness fees will be allowed as costs.
See 10 Wright Miller, Federal Practice and Procedure, Sec. 2676, pp. 421-437 and cases cited.
Id., Sec, 2677
Ibid., p. 460.
Id., Sec. 2678
Ibid., pp. 477-482 and cases cited
Direction as to Payment
The Court has been advised that the City of Wichita Falls has paid all of the attorneys' fees and costs with respect to the defense of James Berzina and Jan Stricklin and requested that the award of costs be made directly to City of Wichita Falls in lieu of awarding directly to Defendants Berzina and Stricklin.
Based upon the foregoing findings, IT IS ORDERED, ADJUDGED and DECREED that City of Wichita Falls have and recover of and from Plaintiff, Jack E. Schlieper, attorneys' fees in the amount of $692,963.00 and allowable costs in the amount of $845.40.
IT IS SO ORDERED. Exhibit A Schlieper Case Analysis of Causes of Action Count Number Named Defendants Cause of Action Asserted Disposition(s) Finding Numbers Exhibit B Attorney Fee Analysis Matrix-Berzina and Stricklin Attorney Hours Rate Total
Count I City of Wichita Falls Retaliatory firing-Sex/Race Discrimination City Complied-Civil Rights 1 City Complied-Texas Gov't Code 2 No Causal Connection 5 No Pretextual Firing 6 No Cause of Damages 7 Jim Berzina Retaliatory firing-Sex/Race Discrimination Committed No Illegal Act 3 No Causal Connection 7 Jan Stricklin Retaliatory firing-Sex/Race Discrimination Committed No Illegal Act 3 Count II No Causal Connection 7 City of Wichita Falls Retaliatory firing-Free Speech Plaintiff Justifiably Fired 8, 9, 10 Plaintiff-No Protected Speech 9 No Prohibited Policy 11, 12 No Cause of Damages 14 Jim Berzina Retaliatory firing-Free Speech Firing-Not Retaliatory 13 Count III Jan Stricklin Retaliatory firing-Free Speech Firing-Not Retaliatory 13-Aug City of Wichita Falls Right to Attorney fees-Free Speech No Proof of Underlying Claims 15 Jim Berzina Right to Attorney fees-Free Speech No Proof of Underlying Claims 15 Count IV 1 Jan Stricklin Right to Attorney fees-Free Speech No Proof of Underlying Claims 15 Count IV 2 Jan Stricklin Slander Per Se No Defamatory Remarks 16 Count IV 3 Ken Coughlin Slander Per Se Remarks Not Defamatory 17 Count V Jim Berzina Slander Per Se No Defamatory Remarks 18 Dennis Bachman Libel Per Se No Malice or Reckless Disregard 19 Count VI 1 Glen Smith Libel Per Se No Malice or Reckless Disregard 20 Jim Berzina Defamation and Conspiracy No Defamation/No Conspiracy 21, 22 Jan Stricklin Defamation and Conspiracy No Defamation/No Conspiracy 21, 22 Dennis Bachman Defamation and Conspiracy No Defamation/No Conspiracy 21, 22 Count VI 2 Glen Smith Defamation and Conspiracy No Defamation/No Conspiracy 21, 22 Ken Coughlin Defamation and Conspiracy No Defamation/No Conspiracy 21, 22 Bettye Lynn 830.5 $200.00 $166,100.00 Allyson Beckman 1042.35 $130.00 $135,505.50 Lu Phan 29.8 $200.00 $ 5,960.00 Kathy Teel 62.9 $185.00 $ 11,636.50 Martha Rose 2 $185.00 $ 370.00 Julia Vasquez 536.2 $180.00 $ 96,516.00 2503.75 $416,088.00 $180.00