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applying 40% reduction for block billing where entries were month to month
Summary of this case from Fralick v. Plumbers & Pipefitters Nat'l Pension FundOpinion
Civil Action No. 3:97-CV-0208-L.
September 21, 2004
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff Sharon Paris' Amended Application for Award of Attorneys' Fees and Costs ("Amended Application"), filed October 15, 2003; Defendant's Response in Opposition to Plaintiff Sharon Paris' Amended Application for Award of Attorneys' Fees and Costs, filed November 3, 2003; and Plaintiff's Reply to Defendant's Response to Plaintiff's Amended Application for Award of Attorneys' Fees and Costs, filed November 20, 2003. After careful consideration of the motion, response, reply, appendices of the parties, relevant portions of the record, and the applicable law, the court grants in part and denies in part Plaintiff Sharon Paris' Amended Application for Award of Attorneys' Fees and Costs.
I. Background
This case was tried before the court and a jury from March 19-26, 2001. Plaintiff Sharon Paris ("Paris" or "Plaintiff") was employed by Defendant Dallas Airmotive, Inc. ("Dallas Airmotive" or "Defendant") on September 15, 1986. Paris was suspended by Dallas Airmotive in July 1996 and later discharged in August 1996. Dallas Airmotive contended that Paris was terminated for a "gross violation of [its] safety standards which could have resulted in serious injury or death to [Paris's] co-employees." Paris contended that the suspension and discharge were pretexts for sexual harassment and retaliation by Dallas Airmotive. On March 26, 2001, the jury rendered a verdict in favor of Paris on her claims of sexual harassment, retaliation, and intentional infliction of emotional distress. The jury awarded Paris a total of $225,000 in compensatory damages on these claims ($25,000 for mental anguish, $25,000 for inconvenience, and $175,000 for loss of enjoyment of life), and awarded her $1,000,000 in punitive damages.
On June 26, 2001, the court held an evidentiary hearing on issues relating to backpay, reinstatement, damages, front pay, and entry of final judgment. The court issued a Memorandum Opinion and Order on July 30, 2001 on these matters; and, as a result of this order and the jury's verdict of March 26, 2001, it issued judgment on the same day in favor of Paris. The judgment ordered, adjudged and decreed that:
A. Plaintiff Sharon Paris ("Paris") shall recover from Defendant Dallas Airmotive, Inc. ("Dallas Airmotive") the sum of $300,000 ($225,000 as compensatory damages and $75,000 as punitive damages). Postjudgment interest shall accrue on this amount at the rate of 3.59% per annum from the entry of this judgment until paid in full;
B. Paris is not entitled to an award of backpay;
C. Dallas Airmotive shall reinstate (rehire) Paris to her former position as a test cell mechanic or one comparable to her former position within thirty days from the entry of this judgment. Dallas Airmotive shall restore to Paris all benefits to which she would have been entitled had she not been unlawfully terminated. Paris's salary at her restored position shall be calculated and adjusted to reflect the reasonable pay increases she would have earned had she not been discriminatorily terminated;
D. All allowable costs are taxed against Dallas Airmotive; and
E. All relief not expressly granted herein is denied.
Judgment at 1-2.
After the entry of judgment, the parties filed several motions which were disposed of by a Memorandum Opinion and Order, dated February 5, 2002. As a result of this order, the court issued an amended judgment on the same date. The amended judgment was identical to the original judgment, except for a change to paragraph C. This paragraph was amended to read as follows:
C. Dallas Airmotive shall reinstate (rehire) Paris to her former position as a test cell mechanic or one comparable to her former position. Dallas Airmotive shall restore to Paris all benefits to which she would have been entitled had she not been unlawfully terminated. Paris's salary at her restored position shall be calculated and adjusted to reflect the reasonable pay increases she would have earned had she not been discriminatorily terminated. The effective date of Paris's reinstatement is August 29, 2001, for the purpose of determining her salary and benefits. The court, however, stays reinstatement of Paris until all appeals are final. . . .See Amended Judgment at 1-2.
The pesky issue of reinstatement continued to dog the parties. After extensive discussions and after taking more twists and turns than one can find on a ten-foot Texas rattler, the parties resolved the issue of reinstatement. The court entered an agreed judgment regarding reinstatement on June 24, 2002; and, pursuant to this judgment, Paris agreed to accept $150,000 in lieu of reinstatement to active employment. The parties also agreed that Paris's health insurance benefits "may be continued after she ceases to be an employee at her election and expense as provided by the Employee Retirement and Income Security Act (ERISA)." Agreed Judgment at 1.
As Plaintiff was the prevailing party, she is entitled to a reasonable attorney's fee. See 42 U.S.C. § 2000e-5(k). The court determines that Paris is a prevailing party because she obtained an enforceable judgment against Dallas Airmotive which materially altered the legal relationship between her and Dallas Airmotive. See Farrar v. Hobby, 506 U.S. 103, 111 (1992). Paris filed a number of documents regarding attorney's fees, and Dallas Airmotive responded to each. See Court's Order, dated September 30, 2003, at 1, 2. The court determined that the multiple and piecemeal filings unnecessarily burdened its scarce judicial resources and directed Paris to "submit a new application for attorney's fees, with proper documentation and legal authority, in accordance with Fed.R.Civ.P. 54(d)(2). . . ." In that order, the court made it unequivocally clear that all documentation or arguments of the parties had to be submitted in conjunction with Paris's new motion for attorney's fees and costs. Id. at 3. In other words, the court would not base its ruling on any prior filings or submissions. Finally, the court put the parties on notice that it would reduce or exclude any fee requests which were "excessive, duplicative, or inadequately documented." Id. at 4. The court now turns to Paris's Amended Application.
II. Plaintiff's Amended Application for Attorney's Fees and Costs
A. Amount of Fees and Costs Sought by Paris
Paris has had several sets of attorneys in this case, and she seeks attorney's fees and costs for each set. The first firm to represent Paris was White Sims Wiggins, L.L.P. ("WSW"), and Paris seeks $23,548.50 in attorney's fees and $925.83 in related costs on behalf of WSW. The second firm to represent Paris was Bourland, Kirkman, Seidler Evans, L.L.P. ("BKSE"). Paris seeks $10,120 in attorney's fees for legal services rendered to her by BKSE. The third law firm to provide legal services to Paris in this action was the Law Office of John E. Schulman, P.C. Paris seeks $93,545 in attorney's fees and $5,198.40 in related costs on behalf of this law firm. Fees which Plaintiff seeks on behalf of Mr. Schulman are based on 363.2 hours (308.3 at $250 per hour, and 54.9 hours at $300 per hour).
In her amended application, Plaintiff requests $24,474.33 as fees and $925 as costs. The supporting documentation lists $23,548.50 as attorney's fees and $925.83 as costs. It appears that the amounts listed in the amended application reflect an error in addition, as the amount requested for attorney's fees is the sum of the attorney's fees and costs. In other words, Plaintiff's application mistakenly double counts the costs. The court will use the amounts reflected in the supporting documentation from WSW.
Although Plaintiff seeks $10,720 in her amended application for services rendered by BKSE, the Attorney's Fee Statement of Jamshyd (Jim) M. Zadeh for work performed by BKSE on Plaintiff's behalf lists the amount as $10,120, which is what the court will use as the correct amount requested.
In conjunction with Mr. Schulman's representation, Paris also seeks $2,440 in fees on behalf of attorney Janette Johnson. Ms. Johnson assisted Mr. Schulman during the course of posttrial proceedings, including preparation for and attendance at the second mediation. The amount requested for Ms. Johnson represents a reduction of well over fifty percent of the actual number of hours she expended.
Paris contends that the amounts requested as fees and costs are reasonable and necessary in that the services provided on behalf of Paris by her attorneys were necessary to the successful prosecution of her claims, and that the hourly rates charged by her attorneys were the usual and customary rates charged by attorneys in the Dallas legal community with similar ability, competence, experience and skill of that possessed by her attorneys. Paris also suggests to the court that the results obtained on her behalf by Mr. Schulman justify an enhancement of the lodestar.
Dallas Airmotive strenuously opposes the amount of fees requested by Paris. For various reasons, which will be discussed later in detail, Dallas Airmotive contends that Paris's request for fees on behalf of WSW should be reduced to $2,347; that her application for fees on behalf of BKSE should be reduced to $4,640; and that her application for fees on behalf of John Schulman be denied in its entirety because of the lack of documentation to support it.
B. Applicable Law
A prevailing party may recover only those fees that are reasonably expended on the litigation. See Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983); Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993). The determination of a reasonable attorney's fee award involves a two-step process: (a) calculation of the lodestar and (b) determining whether the lodestar should be adjusted upward or downward. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). In assessing the reasonableness of attorney's fees, the court must determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433; Migis v. Pearle Vision, Inc., 135 F.2d 1041, 1047 (5th Cir. 1998); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, 516 U.S. 862 (1995).
The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); Kellstrom, 50 F.3d at 324; In re Smith, 996 F.2d 973, 978 (5th Cir. 1992). "Part of the applicant's ability to meet his burden includes maintaining billing time records in a manner that would enable the reviewing court to identify each distinct claim." Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (citing Hensley, 461 U.S. at 437 (1983)). The court may "exclude all time that is . . . inadequately documented." Watkins, 7 F.3d at 457. Absent sufficient documentation, the court may reduce the number of hours awarded or deny the fee application in its entirety. See Kellstrom, 50 F.3d at 327-28. When litigants submit fee requests which are vague or have inadequate documentation, they "take their chances" that the fee requests or applications will be reduced or denied in their entirety. Id. at 327.
The second step, whether to increase or decrease the lodestar, requires the court to consider the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), to the extent that applicable authority allows them to be considered. See Cobb v. Miller, 818 F.2d 1227, 1231-32 (5th Cir. 1987). While the court's analysis need not be meticulously detailed, it must articulate and clearly apply the Johnson criteria. Riley, 99 F.3d at 760; Kellstrom, 50 F.3d at 331. Once the lodestar is computed by multiplying the reasonable number of hours expended by a reasonable hourly rate, the court may adjust the lodestar upward or downward, depending on its analysis of the twelve factors espoused in Johnson. Id. "[T]he most critical factor" in determining the reasonableness of an attorney's fee award "is the degree of success [or result] obtained." Hensley, 461 U.S. at 436; Farrar, 506 U.S. at 114; see Migis, 135 F.3d at 1047; see also Giles v. General Elec. Co., 245 F.3d 474, 491 n. 31 (5th Cir. 2001) (stating that the most important factor under the Johnson analysis is the result obtained).
The twelve factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the 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. Cobb, 818 F.2d at 1231 n. 5 (citing Johnson, 488 F.2d at 717-19).
While a court is to consider the Johnson factors, many of them have been limited significantly or simply may not serve as a basis to enhance a fee award. For example, the first factor, the time and labor required, is necessarily included in the lodestar and cannot be double counted. Walker v. U.S. Dep't of Hous. and Urban Dev., 99 F.3d 761, 771 (5th Cir. 1996). Likewise, a court may not use the sixth and seventh factors, whether the fee is fixed or contingent and the time limitations imposed by the client or the circumstances, to enhance a fee. Id. at 772. Furthermore, the Supreme Court has significantly restricted the use of the novelty and difficulty of the question; the skill requisite to perform the legal services properly; the experience, reputation, and ability of the attorneys; and the amount involved and the results obtained (the second, third, eighth, and ninth factors) to serve as an independent basis to enhance the lodestar. Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 565 (1986). Any "[e]nhancements based upon these factors are only appropriate in rare cases supported by specific evidence in the record and detailed findings by the courts." Walker, 99 F.3d at 771-72 (quoting Alberti v. Klevenhagen, 896 F.2d 927, 936 (5th Cir. 1990) (citing Delaware Valley, 478 U.S. at 565)) (emphasis added).
C. Analysis
1. Fees for Services Rendered by WSW
Paris seeks $23,548.50 in fees and $925.83 in related costs for services performed by WSW in this case. Dallas Airmotive contends that the fee amount should be reduced to $2,347. Paris did not address or reply to any of the objections raised by Dallas Airmotive. The court now addresses the fees requested for WSW and objections made by Dallas Airmotive.
Dallas Airmotive objects to portions of the fees requested by WSW because the hours requested were excessive, duplicative or unnecessary, and, therefore, not reasonably expended for the prosecution of Plaintiff's claims; it does not object to the hourly rates of any of the attorneys who performed work on Plaintiff's behalf at WSW.
First, Dallas Airmotive objects to $2,347 it contends as being duplicative. From what the court can ascertain, the time entries pertaining to these fees, as set forth in subparagraph III.C.1.a., Defendant's Response in Opposition to Plaintiff's Amended Application for Attorneys' Fees, all relate to times WSW met with Plaintiff to learn the facts of the case and related activity. As stated previously, Plaintiff has had three sets of attorneys. That a litigant changes attorneys and new counsel must become familiar with the case cannot be a basis for a litigant to recover for those fees each time new counsel undertakes such a review. In other words, a defendant should not be required to pay more than one attorney or set of attorneys for going over the same thing, especially if no fault can be attributed to the defendant. Nothing in the record indicates that Plaintiff's changing of attorneys was caused by Dallas Airmotive's conduct. As Plaintiff's latest counsel (Mr. Schulman) also seeks compensation for "learning the facts" or familiarizing himself with Paris's lawsuit, the court will not allow Plaintiff to recover for time expended by WSW in this regard. To allow otherwise would subject a defendant to multiple fee recoveries by a plaintiff; in this case, if the court allowed all three sets of attorneys to recover for the time spent, it would subject Dallas Airmotive to triple liability on the same matter. The $2,347 requested by WSW is disallowed.
Second, Dallas Airmotive objects to $2,915 for time expended by WSW for drafting the original complaint. It contends that the original complaint contains allegations that had been resolved in a previously settled lawsuit. Dallas Airmotive contends that, because WSW "flatly refused to correct this egregious action," it had to file a motion for summary judgment and other motions, and successor counsel had to draft a new complaint. Dallas Airmotive contends that WSW should not be awarded any fees for this effort. The court disagrees.
Dallas Airmotive overstates its position. The court agrees that the original complaint certainly makes mention of the previously settled lawsuit between Plaintiff and Defendant and the allegations associated with the previous lawsuit; however, it is abundantly clear to this court that the original complaint, while perhaps not a model of pellucid draftsmanship, raised claims that were ultimately litigated in Plaintiff's favor in this action. The court believes that the amount requested on behalf of WSW should be reduced rather than excluded. While no one can determine precisely "where the hours stop on the old case and start on the new case," the court, based on its experience in handling numerous other employment litigation cases and in setting fees in such cases, exercises its discretion and determines that a reduction of 50% of the time expended is appropriate. Accordingly, the court allows Paris a recovery of one-half of the $2,915, which is $1,457.50.
Third, Dallas Airmotive objects to $1,237.50 in fees requested by Plaintiff on behalf of WSW for drafting discovery. WSW did not serve any discovery on Dallas Airmotive, and the record does not reflect that any other firm or counsel hired by Plaintiff Paris relied on or used the discovery drafts in prosecuting her claims. Accordingly, the court disallows the $1,237.50 for time expended by WSW for drafting discovery.
Fourth, Dallas Airmotive objects to the $3,224.50 in fees requested on behalf of WSW for listening to audiotapes because this work was duplicative of that performed by Mr. Schulman, as he also listened to the audiotapes. The court agrees for the reason previously stated regarding duplicative work. Accordingly, the $3,224.50 requested for listening to audiotapes is denied.
Fifth, Dallas Airmotive objects to $11,217.50 requested for services rendered by WSW. Its objection is stated as follows:
By far the largest amount of time and fees expended by the WSW Firm was in defending against Defendant's Motion for Summary Judgment, Motion to Limit Discovery, and Motion for Sanctions, i.e., the $11,217.50 reflected in Paragraph III.C.1.e. Significantly, Defendant's Motions had nothing to do with the merits of Plaintiff's lawsuit. Rather, the WSW Firm had filed an Original Complaint that in most respects was a carbon copy of the Complaint which Plaintiff and Defendant had earlier settled. WSW then failed to correct the situation (which they alone caused) by simply amending the pleading. It would a gross injustice for Defendant to be required to pay for Plaintiff's legal work that would have been totally unnecessary if the WSW Firm had properly pled Plaintiff's causes of action.
Defendant's Response in Opposition to Plaintiff Sharon Paris' Amended Application for Award of Attorneys' Fees and Costs at 14-15.
Dallas Airmotive "overeggs the pudding," and the court does not agree with its assessment of Plaintiff's original complaint. The court has reviewed the original complaint, the amended complaints, and the summary judgment motion Dallas Airmotive filed. Contrary to Dallas Airmotive's assertion, part of its motion does address "new claims" on the merits, and Plaintiff had to respond to the motion. As stated before, Plaintiff's original complaint was by no means as clear as it should have been, and it did not state or separate out with clarity the new allegations from those which had been previously resolved by settlement. One cannot deny the substantial overlap or repetition of allegations; however, to say that Plaintiff should not recover for some of the work expended by her first set of attorneys would be unfair, because she did ultimately prevail on her retaliation, sexual harassment and intentional infliction of emotional distress claims, which were all included in her original complaint. Once again, the court has to exercise its discretion and make a determination as to what amount of the $11,217.50 should be awarded. As the court believes that Plaintiff could have avoided much of the confusion by pleading with more precision, the fault primarily lies with her. Using the same basis as before in reducing a request, the court determines that Plaintiff recover one-third of the $11,217.50, which is $3,739.17.
Last, Dallas Airmotive objects to $260 in fees requested on behalf of WSW for time spent regarding a credit union loan, a separate matter unrelated to this lawsuit, and the transfer of this case to the successor law firm. The court agrees that the $260 requested for these services was not reasonably expended on matters related to this lawsuit and denies recovery of the $260 requested.
Based upon the courts analysis, Plaintiff Paris is entitled to recover $7,543.67 as attorney's fees and hereby awards this amount to Plaintiff for WSW's attorney's fees. This is based on the total amount of fees requested $23,548.50 less the sum of the amounts excluded or denied ($16,004.83). As Dallas Airmotive does not object to the amount requested for costs, the court find it to be reasonable and awards Plaintiff the sum of $925.83 as costs expended by WSW.
2. Fees for Services Rendered by BKSE
Paris seeks $10,120 as attorney's fees in this matter for work performed by BKSE. Dallas Airmotive contends that BKSE's fees should be reduced to $4,640 because it did not reasonably expend the time with respect to learning the facts about the case and related activities, Defendant's Motion to Limit Discovery, drafting Plaintiff's First Amended Complaint, review of documents for privilege, drafting discovery documents, and work related to the transfer of the case to new counsel. Plaintiff simply does not reply to or address any of Dallas Airmotive's arguments in its reply.
The party challenging the amount of attorney's fees must explain or state why the requested fees are unreasonable or should be excluded. See Wegner v. Standard Ins. Co., 129 F.3d 814, 823 (5th Cir. 1997). With respect to Dallas Airmotive's objections, the court is convinced that it has adequately explained or stated why all of the amounts requested, with the exception of that claimed by Paris on behalf of BKSE regarding its review of documents for privilege, should be reduced or excluded.
Paris requests to be paid for 25.4 hours BKSE expended for reviewing documents for privilege. Dallas Airmotive objects to 11.4 of these hours. Although Paris did not reply to Dallas Airmotive's contention in this regard, the court does not believe that Dallas Airmotive has been specific enough in explaining or stating why the amount of $2,280 for review of documents for privilege should be rejected. The court has no way of knowing the number or volume of the documents reviewed, or the complexity of them, and simply cannot conclude that the hours were unreasonable or unnecessary. Dallas Airmotive contends that this work could have been done by a paralegal. Dallas Airmotive offers argument but no evidence to support its contentions, and there is no basis for the court to conclude as a matter of law that the additional hours were unnecessary or unreasonable. The court overrules Dallas Automotive's objection to Paris's request of $2,280 (11.4 hours × $200 per hour) for the review of documents for privilege by BKSE, and allows compensation in the amount of $2,280 for the additional 11.4 hours.
Based upon the court's analysis, Paris is entitled to recover $6,920 as reasonable attorney's fees for the services rendered by BKSE, and the court hereby awards this amount to Paris. This amount is based on the sum of $4,640 (the amount of fees which Dallas Airmotive did not contest) and $2,280 (the amount of fees the court allowed to which objection was made by Dallas Airmotive and overruled by the court). The court sustains all other objections made by Dallas Airmotive regarding fees requested on behalf of BKSE.
Plaintiff does not request to be awarded any costs incurred for services rendered by BKSE.
3. Fees for Services Rendered by Janette Johnson
Dallas Airmotive objects to the $2,440 sought by Paris on behalf of Janette Johnson. It contends that Ms. Johnson's participation in the second mediation, which was unsuccessful, and her "checking over Schulman's work and/or sitting by his side (but doing nothing) at the May 7, 2002 status conference" were unnecessary and involved matters which "Schulman could have handled . . . himself." Paris counters that Ms. Johnson offered suggestions and assistance to lead counsel regarding tactical and strategic decisions.
The court notes that it is not uncommon for attorneys on both sides of the bar to engage the assistance of experienced counsel to bring litigation to a conclusion or to help in other aspects of litigation. The court recognizes Ms. Johnson as a highly competent and experienced attorney in the area of employment and labor law. She has appeared in this court on several occasions, and the court is aware of her ability in this field of law. Reliance on a highly successful female attorney to facilitate mediation and bring about a possible settlement in a sexual harassment lawsuit brought by a female litigant is not unreasonable. That the mediation did not result in settlement is really of no moment. Although the case did not settle at the second mediation, the court believes that Ms. Johnson's presence certainly increased the potential for settlement. Moreover, not every act of an attorney produces the desired result, but the act is done with the objective of bringing about the desired result. The court is convinced that Ms. Johnson was brought in to enhance the chances of concluding this litigation, and she should be compensated for her services. Moreover, Plaintiff has exercised billing judgment in seeking payment for Ms. Johnson's services, as Ms. Johnson expended 17.66 hours at $305 per hour ($6,046.30), and she seeks only $2,440 in fees for Ms. Johnson's services.
Ms. Johnson's reduced hourly rate for this case is $305. Her regular hourly rate is $345. This rate ($345) is certainly reasonable for an attorney with the level of skill, competence, ability and experience of one as Ms. Johnson in the Dallas legal community. This court recently awarded $375 per hour for an attorney in a civil rights case, and $350 per hour for an attorney in an employment case, and their skill, competence, experience and ability were so similar to, or essentially the same as, that of Ms. Johnson.
4. Fees for Services Rendered by John Schulman and His Firm
a. Inadequate Documentation and "Block Billing"
Plaintiff seeks a total of $93,545 in attorney's fees and $5,198.40 in costs for services performed on her behalf by Mr. Schulman and his firm. Dallas Airmotive contends that Paris should be awarded no fees for services performed by Mr. Schulman and his firm because documentation to support this portion of Paris's amended application is inadequate and because Plaintiff unnecessarily prolonged posttrial matters.
The major thrust of Dallas Airmotive's objections is the alleged inadequacy of documentation for the hours expended by Schulman from his initial representation of Plaintiff through the conclusion of trial for which Plaintiff seeks payment on behalf of Schulman. Prior to the court's order of September 30, 2003 directing Plaintiff to "submit the fee request in a more coherent and readily understandable manner, along with adequate documentation," Plaintiff had filed four documents relating to fee requests and supplemental fee requests: Plaintiff Sharon Paris' Attorney's Fee Claim, filed October 29, 2001; Plaintiff Sharon Paris' First Submission of Supplemental Documentation regarding Attorneys Fees, filed July 9, 2002; Plaintiff's Second Amended and Supplemental Submission in Support of Attorneys Fee Claim, filed August 6, 2002; and Plaintiff Sharon Paris' Third Supplemental Submission regarding Attorney's Fees, filed August 6, 2002.
Regarding the fee request submitted on October 29, 2001, Plaintiff seeks $64,750 on behalf of Schulman's firm for services rendered, and $1,648.40 for costs incurred. She contends that the fees are based on 259 hours at $250 per hour. The 259 figure, however, is incorrect. The court has thoroughly checked the entries submitted, and the hours from February 2000 through March 26, 2001 total 267, according to Appendix C of Plaintiff Sharon Paris' Amended Application for Award of Attorneys' Fees and Costs. Also, Appendix C reflects that 96.2 hours were expended by Mr. Schulman from March 27, 2001 to August 6, 2002. The sum of the two numbers totals 363.2 hours, which squares with the total amount of fees sought by Plaintiff on behalf of Mr. Schulman (308.3 hours at $250 per hour, and 54.9 hours at $300 per hour for a total of $93,545).
This fee request is now a part of Plaintiff's amended fee application and relates to services performed by Mr. Schulman from February 2000 to March 26, 2001. The other fee requests and supplements have also been incorporated into Plaintiff's amended fee application.
For purposes of determining what constitutes a reasonable attorney's fee, the court uses $66,750 as the lodestar for this period of time. Dallas Airmotive does not contest the hourly rate of $250 per hour for Mr. Schulman. In any event, the court determines that, based upon the evidence in the record, this is a reasonable hourly rate for an attorney with the level of experience, competence, skill and ability in the Dallas legal community as that of Mr. Schulman. Indeed, if the court were making the award at current market rates, it would be at least $300 per hour; however, for reasons later discussed, the court makes the award at the historic rate rather than current market rate.
Dallas Airmotive's chief objection to this portion of the amended fee application is that Plaintiff submitted her counsel's time in "block billing" format, and that such submission is not "the type of detailed, itemized contemporaneous documentation" which permits it or the court to determine the reasonableness of the fees requested. The court agrees.
"Block billing" is a "time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Harold Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1534 n. 15 (10th Cir. 1996); see also Hollowell v. Orleans Regional Hosp., 217 F.3d 379, 392 (5th Cir. 2000). Plaintiff's counsel's method of billing in this case from February 2000 through March 26, 2001 is much more problematic, however, as the "block billing" in Harold and the "lumping" of time entries in Hollowell refer to daily activities, while in this case, Plaintiff submitted block billing for monthly activities. Plaintiff simply listed a number of tasks or services performed by her counsel for a specific month and states that this group of tasks took a certain amount of time to perform. There is no breakdown of each task assigned and the amount of time it took to perform the specific task. While the preferred method for a party seeking attorney's fees is to produce contemporaneous billing statements or time records, failure to provide such statements or records "does not preclude an award of fees per se, as long as the evidence produced is adequate to determine reasonable hours." Hollowell, 217 F.3d at 392-93 n. 18 (quoting Kellstrom, 50 F.3d at 325). "Block billing" activities on a monthly basis makes it extremely difficult for the court to conduct the review intended to determine the reasonableness of the fee request, and the court will certainly take this into account in reaching its decision.
In her second amended and supplemental submission, filed on August 6, 2002, Plaintiff "unblocks" the recorded time and submits it in "daily" format for services rendered from February 21, 2000 to March 26, 2001. According to Plaintiff's counsel, he used handwritten records which he kept on a daily basis to recast the time in "daily" format as opposed to "monthly" format. Dallas Airmotive is highly skeptical of Plaintiff's efforts to convert the "block billing" format into "daily format" and, for reasons soon to be set forth, its skepticism is well-founded.
Paris submitted certain documents to the court for an in camera inspection to support recreation of the time in "daily" format. Regarding the documents, Mr. Schulman's sworn, one-page declaration of November 20, 2003 states in its entirety:
1. I have attached copies of pages from my contemporaneous notes, kept on a daily basis.
2. The original pages also contain confidential and personal items related to numerous clients, my family and myself. In order to present the full text of all these pages, I am advised that I would have to obtain permission from dozens of people to release detailed confidential legal and medical information. Also, the volume of handwritten material presented to the Court would be much higher and it would be more difficult to identify the particular items written each day about the Sharon Paris case. Therefore, I have redacted a large volume of irrelevant materials.
The documents submitted for in camera inspection appear to have sustained some minor water damage; however, such damage did not impair the contents or information contained in the documents or the court's ability to review them.
3. These statements are true.
The documents submitted for in camera inspection number slightly over 200 pages, and the court has reviewed each page. On more than 160 pages, more than half of each page has been deleted or redacted. In many instances, only one or two lines, or statements, are on each page. Moreover, in many instances, the writing regarding the information recorded is illegible, and often dates are missing as to when the service was provided. In short, as these documents are lacking in explanatory detail, they are of little assistance or value to the court. Frankly, the court is dismayed that it would be requested to wade through such morass. Given the obvious deficiencies in the in camera documents, the court cannot accept Plaintiff's after-the-fact efforts to create "daily" time records with specific tasks assigned and performed on an hourly basis.
The clerk of the court is hereby directed to file under seal the in camera documents received from Plaintiff's counsel on November 20, 2003.
Given the failure of Plaintiff to follow the court's instructions and the lack of adequate documentation, the most tempting and easiest thing for the court to do is to deny in its entirety that portion of Plaintiff's amended application for services rendered by Mr. Schulman from February 21, 2000 through March 26, 2001. Although extremely tempted to do so, the court determines that such an approach is too draconian and not legally supportable, and the better approach is to reduce substantially the fees Plaintiff requests for this period of time. The court takes this approach because it would fatuous to assert that Plaintiff's current counsel did not reasonably perform services on her behalf during this trial.
The docket sheet amply demonstrates that documents were filed and work done on Plaintiff's behalf. By way of example, responses to a dispositive motion, pretrial documents, and several motions were filed on behalf of Plaintiff by her counsel. The docket sheet also reflects that this case was tried over a period of six days, and the time in court averaged about 10 hours per day, which alone would account for approximately $15,000 in attorney's fees at $250 per hour. Additionally, an attorney necessarily has to prepare for trial, and this includes a substantial amount of time. The record also demonstrates that written discovery took place, and Plaintiff's deposition was taken. This list is by no means exhaustive, but it readily verifies that Mr. Schulman reasonably expended time on behalf of his client Sharon Paris. These matters alone would easily put Plaintiff's counsel well over $30,000 for services rendered.
The issue thus is the appropriate amount by which the fees requested on behalf of Mr. Schulman through March 26, 2001 ($66,750, which is based on 267 hours at $250 per hour) should be reduced because of insufficient documentation. After carefully considering the record in this case, the results obtained, Plaintiff's failure to adequately document this portion of the fee application, the court's experience in setting fees in other employment cases and its familiarity with this case, the court exercises its discretion and determines that a 40% reduction is necessary to ensure that Plaintiff is not awarded more than that to which she is entitled. Accordingly, the fees incurred by Plaintiff through March 26, 2001 are hereby reduced by 40%, resulting in an award of attorney's fees on this portion of Plaintiff's application in the amount of $40,050.
The court is convinced that Plaintiff Paris would have recovered more on this portion of her amended fee application had she submitted adequate documentation and followed the court's instructions. It is not incumbent upon the court to educate a litigant and do a walk-through for that litigant regarding the proper submission of an application for attorney's fees, and the court declines to do so here. Plaintiff has no one to blame but herself for recovering a reduced fee, as litigants "take their chances" of getting a low fee or no fee when they submit inadequate documentation. See Kellstrom, 50 F.3d at 327.
b. Janette Johnson's Fees
The court has already addressed Dallas Airmotive's objections regarding the attorney's fees Plaintiff seeks on behalf of Ms. Johnson. For the reasons it previously set forth, the court overrules Dallas Airmotive's objections to this portion of Plaintiff's amended application. Accordingly, Plaintiff is entitled to recover $2,440 in attorney's fees for services performed for her by Ms. Johnson, and the court so awards such sum to Plaintiff.
c. Rate Increase of Plaintiff's Counsel and Adjustment for Delay in Payment
Dallas Airmotive objects to Plaintiff's counsel raising his hourly rate in January 2002 from $250 per hour to $300 per hour. The amended application seeks 308.03 hours at $250 per hour and 54.9 hours at $300 per hour. Dallas Airmotive contends that it is "totally inappropriate for Plaintiff to ask for compensation for [counsel's] time at a 20% rate increase" and that her attorney should be required to keep his hourly rate constant during the course of specific litigation. This position is contrary to the applicable law when there is delay in payment of attorney's fees. When there is a significant passage of time between the work performed and the actual award of attorney's fees, the district court can award a delay enhancement or make the award based on current market rates. Walker, 99 F.3d at 773; see also Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (holding that a court may make an appropriate adjustment for delay in payment by using current market rates rather than historic rates). For reasons that follow, the court, however, will not award any fees to Plaintiff at the current market rate.
Normally, the court would award all of the hours that Plaintiff's counsel expended at current market rates when there is significant delay between the time the services are rendered and the award of attorney's fees. In this instance, however, the delay in payment does not justify an award at current market rates because the court is convinced that Plaintiff's actions during the course of this litigation unnecessarily protracted it. The court is quite familiar with what has taken place in this case. This case could have been concluded at least three years ago but for some of Plaintiff's actions.
First, Plaintiff has had three sets of attorneys and seeks to terminate her current counsel. Only the insistence of the court has prevented Plaintiff and her current counsel from going their separate ways. The court recognizes that such action would unnecessarily further prolong this case. Whenever a litigant hires new counsel, it necessarily prolongs the case because fundamental fairness dictates that new counsel be provided ample time to familiarize himself or herself with the case. This has occurred twice in this case.
Second, Plaintiff has been indecisive on several occasions. For example, on the issue of reinstatement, Plaintiff changed her mind several times and ultimately agreed to take $150,000 in lieu of reinstatement. The record bears out other instances where Plaintiff has changed her mind on important issues in this case.
Third, while a jury has ruled that Plaintiff was the victim of discrimination, retaliation, and emotional distress, she, to put it diplomatically, can be quite challenging and unnecessarily confrontational. The court makes this determination based on observing Plaintiff's demeanor when she testified at trial and hearings, interacted with her counsel and Dallas Airmotive's counsel, and addressed the court. That Plaintiff has had three sets of lawyers and seeks to terminate current counsel speaks volumes, as far as this court is concerned, about her personality. The court simply finds it hard to accept that all three sets of attorney are at fault.
How Plaintiff chooses to conduct herself and her business is certainly her right; however, the long delay in bringing this case to a conclusion from its inception to now lies by and large at Plaintiff's feet. Under these circumstances, it would be unjust for the court to require Dallas Airmotive to pay attorney's fees at the current market rate. Accordingly, the court declines to award Plaintiff her counsels' fees at the current market rate.
The court is fully aware that not using current market rates reduces the fees that Plaintiff is ultimately awarded by as much as 20%; however, for the reason previously stated, an award at current market rates is simply not justified.
d. Schulman's Posttrial Hours from March 27, 2001 to August 6, 2002
Dallas Airmotive contends or suggests that the court reduce this portion of Plaintiff's Amended Application because none of her counsel's efforts resulted in positive results for her. These hours total 96.2 based upon Appendix C to Plaintiff's amended fee application. Dallas Airmotive does not suggest by how much these hours should be reduced, and does not contest the hourly rate of $250. Dallas Airmotive emphasizes that Paris kept only $300,000 of the $1,250,000 awarded by the jury, was denied five years of backpay, failed to resolve outstanding issues in the case at a second mediation, and ultimately accepted pay in lieu of reinstatement — which had been offered to her in September 2001. While it is true Paris retained only $300,000 of the amount awarded by the jury, this was because of the statutory limitations set forth in 42 U.S.C. § 1981a(b)(3)(D). The court desired additional briefing on this matter before it ruled. See Court's Memorandum Opinion and Order, filed February 5, 2002, at 8. Moreover, during this period, a cash settlement instead of reinstatement was achieved on Plaintiff's behalf, which is certainly a positive result. Dallas Airmotive, as the record reflects, did not want to reinstate Plaintiff. Dallas Airmotive was required to either reinstate Plaintiff with full benefits pursuant to the court's earlier ruling, or offer her a monetary settlement which she found acceptable in lieu of reinstatement. The latter was accomplished. Moreover, Plaintiff has submitted evidence by her counsel's declaration that she did not submit any hours for services rendered regarding backpay or on the issue regarding the $300,000 statutory maximum, and allocation of damages. Nothing in the record contradicts this declaration by Plaintiff's counsel.
Finally, the court observes that it is to focus on "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435. In this case, the parties acknowledge that Plaintiff has received more than $500,000, which is a sizable recovery and not to be taken lightly. Making a reduction in the fees requested as Dallas Airmotive suggests would require the court "to split hairs" or "to slice some pretty thin sausage," and it declines to do so, given Plaintiff's overall success in the litigation.
The court notes that Dallas Airmotive failed to make specific objections with respect to the fees requested for Schulman from March 27, 2001 to August 6, 2002. From what the court can ascertain, no specific objection is made regarding documentation of the requested fees, and none is made with respect to any of the entries for services rendered during this time period. Failure to make specific objections "renders its argument meritless." See Mota v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 527 (5th Cir. 2001).
The hours expended for the posttrial work by Mr. Schulman total 96.2. Dallas Airmotive has interposed no specific objection to the documentation, and Plaintiff has established that counsel exercised "billing judgment" in excluding certain hours on matters in which she did not prevail, such as the issue relating to historical backpay and the $300,000 statutory maximum. The court therefore determines that a reasonable attorney's fee for this portion of fee application is $24,050 (96.2 hours at $250 per hour), and hereby awards Plaintiff this amount for posttrial hours.
The court has considered all relevant factors and determines that no adjustment should be made to the lodestar for the posttrial hours.
e. Costs
Plaintiff seeks $5,198.40 in conjunction with services rendered for Plaintiff by Mr. Schulman as reasonable costs incurred in this action. Dallas Airmotive makes no specific objections to the costs requested. Apparently, it takes the position that costs should not be allowed because it does not believe Plaintiff should be awarded any attorney's fees for services performed by Mr. Schulman.
The court has examined the costs and determines them to be reasonable and necessary for the prosecution of Plaintiff's claims, except those requested for mediation. Paris seeks $800 for a pretrial mediation, and $3,550 for a posttrial mediation. The total amount for both mediations is $4,350. Under 42 U.S.C. § 2000e-5(k), in a Title VII case, a court may allow "the prevailing party . . . a reasonable attorney's fee as part of the costs." The Fifth Circuit has interpreted this provision to include "reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services, such as postage, photocopying, paralegal services, long distance telephone charges, and travel costs." Mota, 261 F.3d at 529 (quotation marks and footnote omitted). It would appear that mediation costs are the kind of out-of-pocket expenses that are allowed; however, in Mota, the Fifth Circuit specifically disallowed an award for mediation fees, stating that "mediation costs do not fall within the limited category of expenses taxable under Title VII." Id. at 530. As this is a Title VII case, Plaintiff is obviously precluded from being awarded mediation costs. To do so would be plain error. Accordingly, the court excludes $4,350 of the amount requested as costs, and awards Plaintiff $848.40 as reasonable costs and expenses.
5. Enhancement of Fee Request for Results Obtained
Paris suggests to the court that an enhancement of the fee award is appropriate. The court disagrees. Apparently, the suggestion is based on the results obtained. The court acknowledges that counsel for Plaintiff achieved a good result for her — perhaps, even an excellent result given the size of the recovery and the infrequency of which a plaintiff prevails in an employment case in this district. A fee enhancement may be warranted "in some cases of exceptional success," Blum v. Stenson, 465 U.S. 886, 901 (1984) (quoting Hensley, 461 U.S. at 435.) Plaintiff offers no reason to the court why this case is one of "exceptional success" and the court does not find the success to be exceptional. To be exceptional, the court holds that the success achieved must be "extraordinary," "highly unusual," or "rare." See Walker, 99 F.3d at 771-72. The success in this case fits none of these categories. Moreover, no other basis exists to enhance the fee award in this case. Accordingly, the court denies Plaintiff's request to enhance the fee award.
III. Intervention
By order dated September 30, 2003, the court denied Plaintiff's current counsel the right to formally intervene, but allowed him "the functional equivalent of intervention" to protect his interest in attorney's fees that he acquired by the contract. At the center of the dispute between Plaintiff and her counsel is the amount she is obligated to pay pursuant to the contract. According to Plaintiff's counsel, she refuses to pay to her counsel and his firm 20% of two checks: one for front pay recovery in the amount of $150,000, and one for backpay recovery in the amount of $29,720. Plaintiff does not dispute that she has not paid 20% of these two checks. Although aware that the court would resolve this matter, Plaintiff has filed nothing with the court to indicate that she has paid the 20%. Moreover, this matter is strictly a matter of law for the court to decide, and no hearing is necessary for testimony or admission of exhibits. In any event, at one point, both Plaintiff and her counsel indicated that they desired the court to resolve their dispute regarding the interpretation of Plaintiff's obligation under the contract. The court now proceeds to do so.
The motion to intervene lists the check as one for backpay. The court, however, awarded no backpay. Apparently, this amount relates to that owed Plaintiff from the effective date of her reinstatement until the time the check was actually issued.
The fee arrangement between Plaintiff and her counsel, in part, calls for "a contingent fee of 20% of any gross recovery by Sharon Paris." Power of Attorney and Attorney's Contract for Employment at 1. Under the plain and unequivocal terms of the contract, Ms. Paris is to pay to Mr. Schulman and his firm 20% of any gross recovery she receives. "Gross" means the total amount recovered before any kind of deductions whatsoever are made. The court interprets "recovery" to be any amount awarded by a court or jury for damages, or any amount awarded to Plaintiff by reason of settlement or resolution. Here, Plaintiff received a monetary settlement in lieu of reinstatement, and such monetary settlement constitutes a recovery within the meaning of the contract.
The court does not interpret an award of attorney's fees as damages because such fees are considered costs pursuant to Fed.R.Civ.P. 54(d), and no substantive law treats attorney's fees as damages in this context. Moreover, no provision in the contract grants any right or interest to Plaintiff's counsel and his firm in any attorney's fees awarded to Plaintiff by the court. No reference to court-awarded attorney's fees is even made in the contract.
For these reasons, the court determines that the 20% contingency fee applies to the gross amount of the two checks but not to any of attorney's fees awarded by the court. Plaintiff is therefore required to pay to counsel and his firm 20% gross of each check. As Plaintiff has not paid counsel and his firm 20% gross of each of the two checks in question, she is in violation of her contract. The court addresses other matters related to this issue in section IV of this opinion and order.
Plaintiff could have avoided the 20% obligation had she chosen to be reinstated rather than accept the cash settlement, as no "recovery" would have occurred.
IV. Conclusion
For the reasons stated herein, the court grants in part and denies in part Plaintiff Sharon Paris's Amended Application for Award of Attorneys' Fees and Costs. Based on its rulings, the court awards Plaintiff Sharon Paris $7,543.67 as reasonable attorney's fees, and $925.83 as costs for services performed by White Sims Wiggins, L.L.P.; awards Plaintiff Sharon Paris $6,920 as reasonable attorney's fees for services performed by Bourland, Kirkman, Seidler Evans, L.L.P.; awards Plaintiff Sharon Paris $2,440 as reasonable attorney's fees for services performed by Janette Johnson Associates; and awards Plaintiff Sharon Paris $64,100 as reasonable attorney's fees and $848.40 in costs for services performed by John E. Schulman, Law Office of John E. Schulman, P.C.
The amount listed in the preceding paragraph total $82,777.90, and are to be paid by Dallas Airmotive within 30 days of the entry of this order. The court directs that Dallas Airmotive make any check it issues for payment payable jointly to Plaintiff Sharon Paris and Mr. Schulman and his law firm. Plaintiff and Mr. Schulman shall take all necessary steps to ensure that the amounts listed on behalf of each law firm are paid to the firm, or its successor, as set forth by the court. If Dallas Airmotive pays the $82,777.90 as ordered herein, it shall have no further liability to Plaintiff Sharon Paris or any of the law firms or individuals that have served as Plaintiff's counsel in this litigation.
The court has also ruled that Plaintiff Paris is in violation of her contract for her failure to pay Mr. Schulman and his firm 20% gross of the two checks earlier referenced. Mr. Schulman and his firm are entitled to this amount under the provisions of the contract. Accordingly, Plaintiff Paris is liable to counsel and his firm (Law Office of John E. Schulman, P.C.) in the amount of $35,944, which is 20% of the sum of the two checks in question ($150,000 and $29,720); and the court, as it is resolving the dispute between Plaintiff and her counsel, directs Plaintiff Paris to pay Mr. Schulman and his firm $35,944 as herein set forth, within 30 days after the entry of this order. If Plaintiff does not have the funds, apart from those awarded herein, to pay counsel and his firm what is owed under the contract, the court orders her to pay counsel and his firm the amount owed from the fees awarded. The fees awarded for the services rendered by Plaintiff's counsel and his firm are more than enough to cover any obligation Plaintiff owes under the contract. Any remaining amount awarded to Plaintiff belongs to her, and not her counsel or his firm, because an award of attorney's fees belongs to the client as the prevailing party. See Venegas v. Mitchell, 495 U.S. 82, 87 (1990). Moreover, by terms of the contract, Plaintiff's counsel did not retain any interest in any attorney's fees awarded by the court. The court only orders Plaintiff Paris to pay from the award of attorney's fees because she is in violation of the contract and may not have current funds to pay her obligation. If Plaintiff has separate funds to pay the $35,944 and pays counsel and his firm from such separate funds as herein ordered, she is entitled to the entire amount awarded as attorney's fees for services rendered by Mr. Schulman and his firm.
Sooner or later all litigation must come to an end. The court has issued several major orders and opinions in this case, which have greatly consumed scarce judicial resources. The issue of attorney's fees in this case, which is evinced by the length of this opinion and order, has taken on a life of its own, despite the Supreme Court's admonition that "[a] request for attorney's fees should not result in a second major litigation." Hensley, 461 U.S. at 437. The time has come for this litigation to end. In other words, "the jig is up!" Other than a motion relating to a clerical mistake, a good faith motion for clarification, an agreed motion in which the parties agree on the requested relief, or a motion to enforce a party's right regarding relief obtained, the court will not entertain further filings in this case. The parties, of course, may appeal this decision, as it is a party's right to do so if such party believes the court erred. The court has gone through a painstaking review of the attorney's fee issue; however, one side, or both, can always find grounds to disagree with the court. If such grounds have merit, the court kindly invites the party to take it to 600 Camp Street, New Orleans, Louisiana.
If any amount herein ordered to be paid by any person or party is not paid within 30 days of this entry of this order, postjudgment interest shall accrue on any unpaid amount at the applicable federal rate until it is paid in full. All relief not expressly granted herein is denied. Pursuant to Fed.R.Civ.P. 58(a)(1)(C), this order also serves as the judgment, and the court elects not to issue a judgment by separate document.
It is so ordered.