Opinion
4:98CV3209
June 6, 2000
MEMORANDUM AND ORDER ON PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES AND COSTS
The plaintiff in this case, Mary Hollins, filed a four-count complaint against the defendant, N.P. Dodge, alleging violations of her rights under 42 U.S.C. § 2000(e) et seq. of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (Title VII), 42 U.S.C. § 1981, and laws of the State of Nebraska including the Nebraska Fair Employment Practices Act and Neb.Rev.Stat. § 20-148 (filing 1). The jury returned a verdict in favor of the plaintiff on both her race and gender discrimination claims, awarding her lost wages in the amount of $344.50, compensatory damages in the amount of $20,000.00, and punitive damages in the amount of $250,000.00 (filing 74). Before me is the Plaintiff Mary Hollins' Application for Attorneys' Fees and Costs, filing 82. Counsel for the plaintiff has requested an award of $38,966.85. After careful consideration, I have determined that the plaintiff's counsel should be awarded $37,297.25 for fees and costs.
ANALYSIS
An award of attorney fees in this case is appropriate pursuant to either 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988(b). The standards for awarding fees under both of these statutes are the same. Hensley v. Echerhart, 461 U.S. 424, 433 n. 3 (1983). Preliminarily, I note that my rulings on the other post trial motions affect the present analysis in two ways. First, since I have denied the defendant's post trial motions for judgment as a matter of law and for a new trial, there is no dispute that the plaintiff is a "prevailing party." See Farrar v. Hobby, 506 U.S. 103, 111 (1992); Casey v. City of Cabool, MO., 12 F.3d 799, 804 (8th Cir. 1993); 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988(b). Secondly, the denial of these motions means that the defendant's offer of judgment in the amount of $10,000.00 has no limiting effect on the application for attorneys fees.
In order to calculate an appropriate fee award for the prevailing party in this case, I must first calculate the lodestar amount by multiplying a reasonable hourly rate by the number of hours reasonably expended on the case. Hensley v. Eckerhart, 461 U.S. at 433. The plaintiff has proposed the following hourly rates for the individuals who performed legal services in this case, and has provided affidavits to attest to their reasonableness:
Susan Sapp: $150/hr.
Bryan Hatch: $125/hr.
Andrea Snowden: $110/hr.
Jill Jensen: $150/hr.
Tracy Oldemeyer: $125/hr.
LeAnn Frobom: $55/hr.
The defendant does not take issue with the hourly rates proposed by the plaintiff. Based on the documentation provided me by the plaintiff, I find that these rates are reasonable and I will use them to calculate the lodestar amount.
Using the itemization of fees provided by the plaintiff, I have calculated the following total number of hours for each individual. Many of these individuals have performed some services for the plaintiff at no charge. Subtracting the "no charge" hours yields the following:
Susan Sapp: 174.8 — 11.9 162.9 hrs.
Bryan Hatch: 132.6 — 32.5 100.1 hrs.
Andrea Snowden: 5.5 — 2.9 2.6 hrs.
Jill Jensen: 0.8 — 0.0 0.8 hrs.
Tracy Oldemeyer: 2 — 0.2 1.8 hrs.
LeAnn Frobom: 4.0 — 1.6 2.4 hrs.
I have encountered a few discrepancies in the itemization provided by the plaintiff. First and perhaps least significant is the inclusion of hours worked by unidentified individuals "FHK" and "ENB." Since all of the hours worked by these individuals have been deducted from the bill by the plaintiff, I need not reduce the total number of hours on account of these mysterious persons. Secondly, the third entry on page 10 of the itemization of hours contains a "no charge" notation, yet the 0.1 hours for that entry are billed. I have therefore reduced the hours for LeAnn Frobom by 0.1 hours, and the above table reflects this adjustment. Finally, the second entry on page 11 lists 6.0 original hours, but 11.0 hours are billed. I have reduced the billed hours for this entry to 6.0, and the above table reflects this correction.
The defendant disputes the number of hours billed, arguing that the hours should be reduced to eliminate duplication and that hours supported by inadequate documentation must be eliminated. The defendant also argues that since the plaintiff's expert, Dr. Reed, did not testify, the time and effort expended by the plaintiff's counsel with regard to Dr. Reed should not be included in the fee calculation. Lastly, the defendant argues that it is inappropriate for plaintiff's counsel to be compensated for the time associated with the submission of their fee application.
It is clear that an award of attorney's fees may be reduced by the district court in order to eliminate compensation for duplicative efforts. Forshee v. Waterloo Industries, Inc., 178 F.3d 527, 532 (8th Cir. 1999); Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349, 358-59 (8th Cir. 1997). In a situation where there are two trial counsel, as here, I am particularly sensitive to the possibility that some of the billing may be redundant. However, the itemization of fees reflects a division of labor among the individuals working on the case, and in those circumstances where the records reflect a duplication of effort, the hours have not been double billed. Also, at trial Mr. Hatch handled the examinations of a number of witnesses, while Ms. Sapp handled the opening and closing statements, among other things. Thus, both attorneys were active participants at trial and did not perform redundant roles. I find no basis for reducing the amount of attorney's fees on the grounds of duplication.
Counsel should maintain billing records that enable the court to identify the general subject matter of her time expenditures.Hensley v. Eckerhart, 461 U.S. at 437 n. 12. Billing record entries such as "legal research," "trial prep," or "met with client" inadequately document the time spent by counsel and may result in a reduction of the lodestar amount. H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991). See also Louisiana Power and Light Co. v. Kellstrom, 50 F.3d 319, 324-27 (8th Cir. 1995). On the whole, I find the plaintiff's counsel's documentation to be adequate. Descriptions of efforts are detailed to the tenth of an hour, and the entries generally descend to the particulars of the tasks billed. I find only two entries that raise an eyebrow: in the week preceding trial, there are entries on 18 Jan 2000 for 2.5 hours by Mr. Hatch and on 21 Jan 2000 for 2.0 hours by Ms. Sapp that state merely "prepare for trial" and "trial preparation." Ordering further documentation for such a small number of hours would be inefficient both for me and for the plaintiff's counsel, and given the detail of the remaining entries on the bill, I expect that more detailed documentation would have been provided on these two entries had it been readily available. Therefore, rather than order the plaintiff to document these hours or reduce the lodestar by a percentage, I shall reduce the total hours for Mr. Hatch and Ms. Sapp by 2.5 and 2.0, respectively.
The defendant argues that the hours expended by plaintiff's counsel with respect to Dr. Reed were unnecessary because Dr. Reed did not testify at trial, and therefore those hours should be deducted from the totals. However, the defendant cites to no authority holding that expenditures regarding witnesses who ultimately do not testify should be deducted from a fee award, or that expenditures must be "necessary" rather than reasonable. Given the fact that the amount of damages for lost wages were low in this case, the bulk of the plaintiff's compensatory damages was to be based on her emotional distress claim. Spending resources on the development of Dr. Reed for trial under these circumstances was not unreasonable. These hours will not be deducted from my calculation.
The defendant argues that it is inappropriate for plaintiff's counsel to be compensated for the time associated with the submission of their fee application. I agree. See Delph, 130 F.3d at 358. Two entries, dated 4 Feb 2000 and 7 Feb 2000, indicate that Ms. Sapp spent a total of 2.8 hours working on the fee application. This time will be deducted from the total bill.
The fee application includes hours and rates for the work of paralegals. These expenses are recoverable and are thus properly included in the fee award. Missouri v. Jenkins, 491 U.S. 274, 285, 287-288 (1989); Weaver v. Clarke, 933 F. Supp. 831, 837 (D.Neb. 1996). Likewise, out-of-pocket expenses are a proper component of a fee award. Weaver, 933 F. Supp. at 837.
The plaintiff has submitted $620.35 in expenses, and the defendant does not challenge this request. However, I notice immediately that the first item on the expense itemization includes a bill for $1.10 for postage dated 11 Mar 1998. The complaint in this case was filed on 17 June 1998, and the plaintiff's current attorney did not enter her appearance until late January, 1999, following a change in counsel. Absent further explanation of this charge, I can only assume it was included on the itemization erroneously. A deduction in the amount of $1.10 will be made from the award of costs.
In light of my analysis, the calculation of the award is as follows:
Susan Sapp: 158.1 hrs. x $150/hr = $23,715
Bryan Hatch: 97.6 hrs. x $125/hr = $12,200
Andrea Snowden: 2.6 hrs. x $110/hr = $286
Jill Jensen: 0.8 hrs. x $150/hr = $120
Tracy Oldemeyer: 1.8 hrs. x $125/hr = $225
LeAnn Frobom: 2.4 hrs. x $55/hr = $132
Expenses: = $619.25
TOTAL AWARD = $37,297.25
As a final note, I recognize that the plaintiff's counsel obtained a very favorable recovery for their client which compares extremely well with verdicts in similar cases. Counsel entered the case in relief of previous counsel seven months into the litigation and performed well. I find no reason to alter the lodestar amount.
IT IS ORDERED that the plaintiff's counsel is awarded $37,297.25 for attorneys' fees and expenses.