Summary
Reducing request for $200/hour to $150/hour.
Summary of this case from Wirtz v. Kansas Farm Bureau Services, Inc.Opinion
Case No. 01-4057-DES
June 21, 2002
MEMORANDUM AND ORDER
This matter is before the court for the purpose of determining the amount of sanctions that shall be imposed on plaintiff's counsel, Cortland Berry. On January 24, 2002, the court granted defendant's motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure. (Doc. 19). Scott v. Boeing Co., 204 F.R.D. 698 (D. Kan. 2002). For the purpose of providing assistance to the court in determining the proper amount of sanctions, defense counsel was ordered to submit time records, affidavits, or other evidence setting forth the time and corresponding hourly rates that were spent in defending this action. Defense counsel complied with the court's order and submitted a billing statement containing the requested information. (Doc. 21). Plaintiff's counsel filed an "Objection to Application for Costs and Attorney Fees." (Doc. 22). Defense counsel subsequently filed a Reply. (Doc. 23). The court has reviewed the relevant documentation and is now prepared to impose sanctions.
I. BACKGROUND
On September 7, 2001, the court entered a Memorandum and Order dismissing plaintiff's action for failure to state a claim upon which relief can be granted. (Doc. 9). Scott v. Boeing Co., No. 01-4057-DES, 2001 WL 1057750, at *2 (D. Kan. Sept. 10, 2001). The court found plaintiff's right to sue had been extinguished because she had filed the case more than two years after receiving a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (providing that a civil rights plaintiff must initiate litigation within ninety days of receiving a right to sue letter); Millon v. Frank, 47 F.3d 385, 389 (10th Cir. 1995) (noting that the ninety day filing time imposed by Title VII functions like a statute of limitations); Bergman v. Sprint/United Management Co., 981 F. Supp. 1399, 1402 (D. Kan. 1997) (same as applied to ADA).
Thereafter, defense counsel filed a motion for Rule 11 sanctions against Mr. Berry. The motion was granted in the court's January 24, 2002, Memorandum and Order. Scott, 204 F.R.D. at 701. In granting defendant's motion, the court found Mr. Berry unreasonably failed to inquire as to whether plaintiff's claims were warranted by existing law or by a nonfrivolous argument for the modification or reversal of existing law. See Fed.R.Civ.P. 11(b)(2). The court noted that plaintiff's lawsuit was filed more than two years out of time and that plaintiff's argument that the statute of limitation "seems unjust," did not constitute a nonfrivolous argument for the extension of the law. The court further found that defendant's costs and reasonable attorneys' fees would serve as a guide for the court in determining the amount of sanctions. Thus, defense counsel was ordered to submit time records, affidavits and any other supporting documentation evidencing the amount of time spent in defending this case.
II. STANDARDS FOR IMPOSITION OF RULE 11 SANCTIONS
Rule 11 grants the court discretion to sanction a party with "an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation." Fed.R.Civ.P. 11(c)(2). However, "the primary purpose of sanctions is to deter attorney and litigant misconduct, not to compensate the opposing party for its costs in defending a frivolous suit." White v. General Motors Corp., Inc., 908 F.2d 675, 684 (10th Cir. 1990).
An appropriate sanction is "the least severe sanction adequate to deter and punish the plaintiff." Id. (citations omitted). The Tenth Circuit has set out three factors that the court should expressly consider in determining the proper amount for a monetary sanction: (1) the reasonableness of the expenses incurred as a result of the sanctionable conduct; (2) the minimum amount necessary to deter future misconduct; and (3) the ability of the sanctioned party or attorney to pay the sanction. See id. at 684-85.
III. DISCUSSION
As a basis for the imposition of sanctions, the court will first look to the reasonable expenses incurred by defense counsel as a result of Mr. Berry's conduct. See Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D. Kan. 1999) ("The total amount of reasonable expenses incurred, including attorney fees, establishes the maximum amount of any award of such expenses.").
Defense counsel contends that the reasonable expenses incurred in this case total $1,360.00. This amount includes 10.1 billable hours, billed at three different rates by three different individuals. The first individual, Mary Babcock, the lead defense attorney on this case, billed 3 hours at $200 per hour. The second individual, Carolyn Rumfelt, an attorney of record, billed 6.5 hours at $110 per hour. The remaining individual, listed as V. Walton and presumably a legal assistant, billed .6 hour at a rate of $75 per hour.
To determine a reasonable amount for attorneys' fees, the court must arrive at a lodestar figure by multiplying the number of hours reasonably spent by a reasonable hourly rate. See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998). The district court is obligated "to exclude hours not `reasonably expended' from the calculation." Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). In doing so, the court should "consider that the very frivolousness of the claim is what justifies the sanctions." White, 908 F.2d at 684. As such, costs for "overstaffing, overresearching, or overdiscovering clearly meritless claims" shall be excluded. Id.
Upon reviewing the billing statement submitted by defense counsel, the court finds 10.1 hours is a reasonable amount of time spent in defending this suit and achieving this sanction award. Defense counsel's tasks included preparing a motion to dismiss and a memorandum in support of the motion, replying to plaintiff's response, drafting correspondence to Mr. Berry urging him to dismiss the suit or face Rule 11 sanctions, and finally drafting a motion for sanctions and memorandum in support of the motion. The court will now turn to the question of what constitutes a reasonable rate of compensation for the 10.1 hours expended.
To determine a reasonable rate of compensation, the court must "determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983) overruled on other grounds by Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987). Because the litigation occurred in Wichita, Kansas, the relevant inquiry concerns the rates that lawyers of comparable skill and experience charge in the Wichita area. See id. See also Jayhawk Invs., L.P. v. Jet USA Airlines, Inc., No. 98-2153-JWL, 1999 WL 974027, at *4 (D. Kan. Aug. 25, 1999). Neither defense counsel nor Mr. Berry present evidence of the prevailing market rates in the Wichita area. In the absence of adequate evidence of prevailing market rates, the court may rely on other relevant factors including its own knowledge to establish the rate. See Case, 157 F.3d at 1257 (citing Lucero v. City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987).
Mr. Berry contends that the average hourly rate in Wichita is $100 per hour but he does not offer supportive documentation for this assertion.
After reviewing the billing statement submitted by defense counsel, the court finds that only the $200 per hour rate charged by Mary Babcock should be reduced. Based upon the court's knowledge of the prevailing market rates, the court finds a more appropriate rate for Ms. Babcock's work is $150 per hour. See Godinet v. Management and Training Corp., 182 F. Supp.2d 1108, 1113 (D. Kan. 2002) (allowing hourly rate of $115-$175 in Topeka, Kansas); Franz v. Lytle, 854 F. Supp. 753, 756 (D. Kan. 1994) (awarding a fee of $125 in Wichita, Kansas, and taking judicial notice that hourly rates in Topeka are much less). Thus, $150 shall be subtracted from the total amount requested by defense counsel to reflect the reduction in Ms. Babcock's fee. Therefore, the defense reasonably incurred $1,210 in expenses and attorneys' fees as a result of Mr. Berry's sanctionable conduct.
The court finds that $1,210 is the minimum amount necessary to deter and punish Mr. Berry. In addition, Mr. Berry has presented the court with no evidence of his inability to pay any amount of sanctions imposed. "Inability to pay what the court would otherwise regard as an appropriate sanction should be treated as reasonably akin to an affirmative defense, with the burden upon the [party] being sanctioned to come forward with evidence of [his] financial status." White, 908 F.2d at 685. The court assumes, therefore, that Mr. Berry is able to pay the amount of sanctions imposed.
IV. CONCLUSION
After considering all the evidence, the court concludes that Mr. Berry shall pay defense counsel the sum of $1,210. The court finds this is the minimum amount to deter future similar conduct.
IT IS THEREFORE BY THIS COURT ORDERED that Cortland Berry, counsel for plaintiff, is sanctioned in the amount of $1,210. Mr. Berry shall pay this amount to Mary Babcock of Foulston Seifkin LLP, within sixty (60) days from the date of this order.