Opinion
Civil Action No. SA-98-CV-0161-EP.
July 20, 1999.
SHOW CAUSE ORDER
On this date the Court considered Plaintiff's motion for attorneys fees, the Defendant's response to that motion, and the Plaintiff's reply. The Court, after careful consideration, has determined that Plaintiff's counsel have engaged in questionable behavior by materially misrepresenting the work performed in this matter and/or by attempting egregiously to overbill the Defendants for their efforts. Therefore, the Court will order each of those attorneys to show cause why they should not be sanctioned for their conduct, pursuant to Federal Rule of Civil Procedure 11. In addition, the Court will order that all three of Plaintiff's attorneys withdraw their request for fees and submit a motion that accurately reflects their time expended and the fees that they are reasonably entitled to.
FACTS AND PROCEDURAL HISTORY
Plaintiff Onofre Serna, brought this suit against the City of San Antonio and San Antonio Police Chief Department Al Phillipus, alleging violations of the Texas Whistleblower Act and various civil rights violations pursuant to 42 U.S.C. § 1983. At the conclusion of trial, a jury found in favor of Serna in the amount of $500,000, which this Court reduced to $425,000 in the final judgment. Serna's counsel now seek attorneys fees as permitted by the Whistleblower Act, Texas Government Code section 554.003(a)(4) and as authorized by 42 U.S.C. § 1988 for the federal civil rights claims. Counsel seek $123,941.00 inattorneys fees and $11,247.45 in litigation expenses.
STANDARD OF REVIEW
Texas Whistleblower Act
Attorneys fees under the Texas Whistleblower Act are governed by Texas law. Thus, fees are recoverable only if they are proven to be both reasonable and necessary. See Arthur Andersen Co. v. Perry Equip. Corp., 945 S.W.2d 812, 819 (Tex. 1997); Lubbock Co. v. Strube, 953 S.W.2d 847, 858 (Tex.App.-Austin 1997, writ denied). In determining whether the fees requested are reasonable and necessary, the trial court looks to the factors set forth in the Texas Disciplinary Rules of Professional Conduct. See TEX. DISCIPLINARY R. PROF. CONDUCT 1.04, reprinted in TEX. GOVT CODE, tit. 2, subtit. G app. (STATE BAR RULES art. X, § 9). Those factors are (1) the time and labor required, the novelty and difficulty of the questions involved, and the requisite skill; (2) the likelihood that the acceptance of the employment will preclude other employment by the attorney; (3) the customary fee in the locality for similar services; (4) the amount of money involved in the suit and the results obtained; (5) the time limitations imposed on the lawyer by the case; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent or the uncertainty of collection before the legal services had been rendered. Id.
A party seeking fees under Texas law must support his or her request with evidence that the fees sought are reasonable and necessary. Higgins v. Smith, 722 S.W.2d 825, 827 (Tex.App.-Houston [14th Dist.] 1987, no writ). An attorney testifying as an expert may provide such evidence, id., as may written matters such as time sheets, depositions, admissions, or affidavits. Harrison v. Gemdrill Intern., Inc., 981 S.W.2d 714, 719 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). A court may question the believability or credibility of the proffered evidence. A.V.I., Inc. v. Heathington, 842 S.W.2d 712, 718 (Tex.App. — San Antonio 1992, writ denied).
Attorneys Fees Under 42 U.S.C. § 1988
Computation of attorneys fees for a federal civil rights case is accomplished by application of the "lodestar method." Under this method, a trial court computes a lodestar by multiplying the reasonable number of hours expended by a reasonable hourly rate of pay and then makes adjustments to that amount, based on factors set forth in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974). See Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). Those factors are quite similar to the factors considered under Texas law: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the requisite skill; (4) the preclusion of other employment opportunities for the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the case; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of counsel; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
In determining an award of attorneys fees, the court is governed at all times by what is reasonable. Halderman v. Penhurst State Sch. Hosp., 899 F. Supp. 209, 211 (E.D. Pa. 1995). A district court may completely deny a request for fees when that request is so outrageously excessive that it shocks the conscience of the court. Fair Housing Counsel of Greater Wash. v. Landow, 999 F.2d 92, 97 (4th Cir. 1993); see also Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).
DISCUSSION
Allowing plaintiffs' attorneys to seek fees for the representation of clients in civil rights cases serves an important societal interest — it encourages attorneys to prosecute constitutional violations. Valley Disposal Inc. v. Central Vermont Solid Waste Management Dist., 113 F.3d 357, 361 (2d Cir. 1997). However, because granting attorneys' fees, and thus shifting the burden of litigation costs to the losing party, has become so common, it is perhaps easy to forget that this practice is not the norm. In fact, the United States Supreme Court in Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240 (1975), held that parties to civil rights litigation are to bear the burden of their own costs and expenses, including attorneys fees unless Congress statutorily authorized shifting that burden. Alyeska, 421 U.S. at 262.
The same is true under Texas law; attorneys fees may not be awarded except where authorized by statute. Vinson Elkins v. Moran, 946 S.W.2d 381, 409 (Tex.App.-Houston [14th Dist.] 1997, writ dism'd).
In 1976, Congress responded to Alyeska by passing the Fees Award Act of 1976, or 42 U.S.C. § 1988. See Stanford L. Cameron, Note, Civil Rights Plaintiffs' Recovery of Expenses for Experts as Litigation Costs Under 42 U.S.C. § 1988 , 66 TEMP. L. REV. 857, 866-67 (1993). The goals for the legislation included the desire to encourage private enforcement of civil rights laws, to make access to courts feasible for those plaintiff's suing only for injunctive relief, and to enable plaintiffs to bring suit in the public interest. Id. at 868. In addition, Congress sought to encourage competent attorneys to represent plaintiffs in civil rights cases. Id.
It is important to note the level of responsibility these rationale place on a civil rights attorney. While all attorneys, in some sense, uphold the legal system by aiding clients in exercising their right to redress before the law, those lawyers who agree to represent plaintiffs in civil rights cases have been recognized by Congress as "private attorneys general" who aid plaintiffs in bringing lawsuits that help ensure that defendants do not step outside the bounds of the United States Constitution. While unethical conduct is troubling when it comes from any attorney in any context, such conduct is especially troubling when exhibited by those attorneys charged with enforcing the protections of the United States Constitution on the behalf of plaintiffs who might not be able to do so for themselves.
This discussion focuses on the burden borne by federal civil rights attorneys; it is equally applicable to the responsibility borne by attorneys representing Whistleblower plaintiffs, who serve the public by ensuring that public workplaces are safe and free from misconduct. See Housing Auth. of City of Crystal City v. Lopez, 955 S.W.2d 152, 160 (Tex.App.-Austin 1997, no writ) (describing dual purposes of Act).
It is clear that the awarding of attorneys fees in civil rights cases is not meant to serve as a windfall to attorneys, Leroy v. City of Houston, 906 F.2d 1068, 1078-79 (5th Cir. 1990), but to encourage attorneys to prosecute cases that might otherwise not attract competent counsel. Spellan v. Board of Educ., 59 F.3d 642, 645 (7th Cir. 1995); Valley Disposal, 113 F.3d at 361. Allowing attorneys fees provides this encouragement by making reasonable fees available to competent attorneys, not by providing an opportunity for counsel to extract unreasonably high sums from government entities and actors. of course, the Court does not need to remind counsel that those sums often ultimately come from the same taxpayers who are protected by civil rights legislation.
The Court has carefully reviewed the motion filed by Plaintiff's attorneys, and the Court agrees with the Defendants that the motion reflects misconduct on the part of Plaintiff's counsel. This misconduct includes misrepresentations regarding time expended in representing the Plaintiff, egregious double-billing for the work of two or more attorneys, and patently unreasonable charges. The Court will address the most blatant defects individually.
Misrepresentation
Defendants argue, and have provided evidence, that Plaintiff's motion seeks fees for depositions that either didn't take place or that, if they did take place, were not attended by the attorney requesting the fees. Specifically, they charge that attorneys Barbara Woodward and Bruce Mery requested fees for three depositions, those of Matt Herden, Michael Riggs, and Raymond Beard, that never even took place. In addition, Ms. Woodward has requested fees for attending eight depositions that she did not, in fact, attend: those of Andy Rodriguez, Roland Alvarado, Phillip Misek, Linda Taylor, David Moore, Richard Ensminger, Alexander Garza, and Phillip Franzon. Mery has requested fees for attending two depositions that he did not, in fact, attend: those of Stephen Herries and Kenneth Davis. The Plaintiff's apparently do not deny these allegations, but assert that, whether or not a deposition was held, counsel had to prepare for it. However, the Court notes first, that the time was not labeled "preparation for deposition" on the records submitted to this Court. Moreover, the Court is not convinced that time spent for preparing for a deposition that never took place is properly chargeable in all cases. Attorneys, like individuals in other walks of life, do have to absorb some of the costs of their profession, and their fees are generally ample enough not to render this an injustice.
Additionally, Plaintiffs' counsel have misrepresented the time they actually spent at the depositions they did attend, as evidenced by the court reporter's records. In some cases, Plaintiff's counsel billed for four times the actual deposition time, representing to this Court that the time was for "attending oral deposition." Plaintiffs argue that such billing is permissable because "the attorneys' day had to be scheduled for attendance and was used for deposition purposes, scheduled in the Defendants' attorneys' office, which made it impossible to do work other than on the Plaintiff's case while attending depositions or waiting for the next deposition to commence." In addition, Plaintiff's counsel argue that the time includes the time taken to prepare for the deposition, the time to travel to the deposition, and the "notes and records retained following the deposition."
Plaintiff's argument misses the point. While some of the extraneous time may be recoverable, the Court has no way of assessing its reasonableness if counsel insists on describing the time as merely time spent in deposition. For example, the Court is not wholly convinced that travel time to and from a deposition in the same city in which the attorneys reside should be recoverable. At any rate, travel time, if recoverable, is properly sought as an expense of litigation and should be billed separately to the client. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir. 1995). Nor would the Court wish to grant fees for time "waiting for the next deposition to commence" if that time included lunch for the attorneys. By disingenuously labeling their time as time spent in depositions, the Plaintiff's counsel have deprived the Court of making these determinations.
Duplicate Billing
Serna has been represented by two attorneys, Barbara Woodward and Bruce Mery, since early in this litigation. Counsel explain in their reply brief that representation by two attorneys was warranted by the complexities of the litigation, and the Court will not take issue with this claim. However, it cannot be the case that Ms. Woodward and Mr. Mery performed exactly the same tasks, taking exactly the same amount of time, as many times as the motion for fees suggests.
Plaintiffs argue that Defendants, as well, are represented by multiple counsel. While this claim is true, it is wholly irrelevant. Defendants' bill is not before this Court; this Court is in no position to determine whether Defendants would have, if given the opportunity, billed unreasonably for work performed by two or more attorneys for the same task. In other words, the necessity for multiple counsel is before the Court only to the extent that it has not been justified on an item-by-item basis.
Or, if this is the case, counsel has simply engaged in overbilling. Mr. Mery and Ms. Woodward double-billed for nearly everything they did, including attending depositions and, incredibly, preparing correspondence (i.e., writing letters) to opposing counsel. See Church v. City of Philadelphia, Civ. A. No. 87-0369, at *2 (E.D. Pa. Feb. 9, 1987) (attorneys should avoid billing for "work performed by persons overqualified for a particular task). Perhaps there is a more efficient, and cost-effective, way of dividing efforts. As Defendant's response brief puts it, "It does not take a village to draft a letter."
Hours that, even though actually expended, are "excessive, redundant, or otherwise unnecessary" or that result from a case being "overstaffed" are not hours "reasonably expended" and must be excluded from an award of attorneys fees. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also Buchanan v. Kropp, No. Civ. A. 91-3134, 1994 WL 34174, at *2 (E.D. Pa. Feb. 8, 1994) (reducing lodestar for work unreasonably performed by two attorneys). The Supreme Court articulates this requirement as an ethical one, Hensley, 461 U.S. at 434, and the requirement flows from the general principle that hours that would not properly be billed to a client are not properly billed to the opposing party. Id. at 434.
By the Court's reckoning, the fee request here includes over $50,000 of charges for identical tasks performed by Mery and Woodward simultaneously. A cursory review of the request suggests that many, if not most, of those tasks did not require duplicate efforts. Moreover, the poor recordkeeping makes it difficult to determine what work was necessary and which hours were reasonably expended. For example, the records indicate that both Mery and Woodward worked on the Plaintiff's summary judgment response, but do not explain which attorney performed what work.
Excessive Billing
The Court has made an independent review of counsel's billing statements and has found numerous examples of egregious overbilling. A non-exhaustive sampling of such overbilling includes:
1. Numerous examples of billing large sums for preparing and reviewing correspondence (e.g., $92.50 for reviewing the opposing parties' notice of intent to take oral deposition; $37.00 and $55.50 for preparing cover letters; $60.00 for reviewing unopposed motion for extension of time to file brief).
2. Numerous examples of billing large sums of money for reviewing brief Court orders (e.g., $74.00 for reviewing a one-sentence order on a motion for leave to file first amended answer; $37.00 for reviewing an order denying a motion to extend time; $37.50 for reviewing order denying motion as moot).
3. Mr. Boyd's billing out his services waiting for the jury verdict at $225 per hour.
4. Billing twice and three times for the same work. For example, Ms. Woodward's records reflect that on March 20, 1997, she reviewed the First Set of Interrogatories and Requests for Production to Plaintiff. Mr. Mery bills for that work on June 12, 1998, and so does Ms. Woodward.
5. Facially exaggerated time spent on preparing the Plaintiff's response to summary judgment motion and pretrial order, among other documents.
6. Inexplicable billing, such as the December 27, 1998, bill for reviewing a letter from Mark Kosonavich that was drafted on January 27, 1999.
Many, if not all, of these items were billed by both Mery and Woodward.
Many, if not all, of these items were billed by both Mery and Woodward.
The Summary Judgment Response
On October 7, 1998, Plaintiff submitted his response to the Defendants' motion for summary judgment. Both Mr. Mery and Ms. Woodward represent to the Court that they worked on this response; Mr. Mery claims 42 hours, and Ms. Woodward 34 hours. The Court agrees with Defendants that the request for fees for preparing this response is troubling in several aspects.
First, it seems facially excessive. Seventy-six hours is almost two forty-hour work weeks and is more time than was spent on the actual trial of this matter. This is especially troublesome because the attorneys' records provide the Court with no basis for determining the length of time spent on particular tasks or portions of the response. In addition, the Court has no basis for determining whether effort was unnecessarily duplicated.
Second, the Court notes that some of the claimed expended hours were expended after the motion was filed. Ms. Woodward claims to have worked on the response through October 9, and Mr. Mery claims to have worked on it through October 11. The Court notes that Mery has billed $1,665.00 and $1,295.00, respectively, for work done on October 8 and October 11, even though the response was filed on October 7. Ms. Woodward billed $1,350.00 and $1,050, respectively, for work done on October 8 and October 9. In addition, as the Defendants note, counsel have billed 45 minutes on October 13 for preparing a motion to extend the number of pages of their response, although that motion was filed on October 7, with the motion itself. The Plaintiff's reply does not explain these discrepancies, so the Court must assume they are the result of deliberate or reckless misrepresentation.
The amount of time spent on preparing the motion to exceed the page limit is also quite excessive.
Third, the Court is aware that Mr. Serna's case is one of three cases filed in this district arising from essentially the same set of facts. The Defendants argue that the Plaintiff's response to Defendants' summary judgment motion is substantially similar to the response filed in another of these cases, Lucio Aguilar v. City of San Antonio. That response was filed on September 23, 1998, two weeks prior to the response filed in this case. The Court finds that Plaintiff's counsel were required to make a good-faith attempt to adjust their billing statement for the similarities between the two documents. Surely, counsel would not have asked Mr. Serna to pay for work performed for another client, Mr. Aguilar.
See also Lockamy v. City of San Antonio, SA-98-CA-159-FB; Aguilar v. City of San Antonio, SA-98-CA-160-OG.
Similarly, counsel should have taken the fact that there are three cases involving the same facts into account when they billed six hours apiece for attending mediation on all three cases. According to the affidavit of Defendant's counsel Mark Kosonavich, the session lasted four hours.
Finally, when a district court begins its determination of the reasonableness of attorneys fees in a civil rights case, that court is mandated by law to award fees only for successful claims. Hensley, 461 U.S. at 440. Thus, even if the Court did not find the hours expended on the Plaintiff's response excessive, the Court nonetheless notes that not all Serna's arguments were accepted; in fact, summary judgment was granted in favor of the Defendants on Serna's procedural and substantive due process claims and on his equal protection claim. Counsel for Serna have made no attempt to segregate the work done on successful claims from that done on unsuccessful claims. This duty rests on the Plaintiff not on the Court. See Buffington v. Baltimore Co., 913 F.2d 113, 128 (4th Cir. 1990).
Of course, segregation may not be possible if the successful claim and unsuccessful claims involve a "common core of facts" or are "based on related legal theories." Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). In that case, the Court must compare the Plaintiff's overall relief with the number of hours reasonably expended. Id. Plaintiff's counsel have made no attempt to address this issue, so the Court is unable to make a reasonableness determination.
Sanction Billing
The Court is hard-pressed to say which of the Plaintiff's requests in this case is the most egregious, but their submission of fees for their work in responding to this Court's sanction order against them is certainly in the running.
On February 11, 1999, this Court sanctioned Plaintiff's counsel for discovery abuses. The sanction was in the amount the amount of $150. In their request for fees, both Mr. Mery and Ms. Woodward billed for the time expended in preparing the cover letter that accompanied their check to Defendant's counsel, Mark Kosonavich. Their combined time would entitle them to $167.50, or $17.50 more than the sanction the Court imposed against them. Plaintiff's counsel would actually profit from engaging in sanctionable conduct — a somewhat novel, if intriguing, outcome.
Stephen Boyd
Stephen Boyd entered this litigation on the first day of trial. Ms. Woodward was unable to attend trial due to illness, and, according to counsel, Mr. Boyd stepped in to take her place. In all, Mr. Boyd charged for over ninety hours of work, performed in ten days, including eight hours expended waiting for the jury verdict, billed at $225 per hour. Mr. Boyd also billed his trial time at $225, although the Court observed that his only services during trial were monitoring "real time" testimony and providing occasional advice or suggestions to Mr. Mery. In all, Mr. Boyd has submitted a bill of $21,468.75 to Defendants. In this regard, the Court notes the cautionary statement of the United States Court of Appeals for the Fifth Circuit that the rate charged in a civil rights case should not be the rate that "lions at the bar may command." Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985). This is especially true where, as here, any special experience or skill did not result in the expenditure of fewer hours than counsel should normally be expected to spend. Blum v. Stenson, 465 U.S. 886, 898 (1984). In other words, it is generally to be expected that counsel commanding the larger hourly rates would provide better, more efficient, service.
The Court finds that "billing judgment" has not been used in the submission of this fee request. See Hensley, 461 U.S. at 434. There should be no compensation for attorneys who have served in the "passive role of an observer while other attorneys performed." Flowers v. Wiley, 675 F.2d 704, 705 (5th Cir. 1982). While the Court is prepared to accept the claim that Mr. Boyd performed some service for which some compensation should be awarded, the Court finds this request excessive.
Records
Serna's counsel admit that their billing statement is not precisely contemporaneous with the services rendered, although they maintain that the entries were made "on or close to the dates indicated for each itemized professional service." The Court agrees with Defendants that, given the actual misrepresentations in the submissions, this statement cannot be true. "Reconstructed records are a disfavored basis for the award of attorneys' fees." Church, Civ. A. No. 87-0369, 1987 WL 6367, at *2. This case illustrates vividly why this is so. Assuming that Plaintiff's counsel did not intend to make misrepresentations to this Court, faulty record-keeping has resulted in the submission of erroneous records nonetheless. For example, counsel have requested payment for deposition time when the deposition at issue never took place. Counsel have requested payment for deposition time for depositions that the counsel making the request did not attend. This Court would be entirely within the law to make a downward departure from the lodestar, based on faulty record-keeping alone. See Leroy v. Mann, 906 F.2d 1068, 1072 n. 16 (5th Cir. 1990) (describing downward reduction of thirteen percent for incomplete time records). However, in this case, the Court finds that the incomplete records so completely taint the request for fees that the Court cannot even begin the task of determining a lodestar. Accordingly, the Court must demand that a new, more detailed and accurate request be submitted.
Counsel assure the Court that the submission, while "not exactly accurate" is "the most accurate that is reasonably possible."
Fees and Expenses
Plaintiff seeks over $11,000 in fees and expenses, including copy fees, fees for expert witnesses, and mediation fees. The request does not segregate fees expended on state law claims from fees expended on the federal civil rights claim. Nor do Plaintiff's counsel offer any statutory basis for claiming expenses on the state law claim. The Texas Whistleblower Act specifically authorizes the award of attorneys fees but is silent on the issue of expenses. Other Texas statutes, on the other hand, do mention expenses. See TEX. CIV. PRAC. REM. CODE § 105.002 (expressly allowing for recovery of expenses, along with fees); id. at § 106.002 (distinguishing between attorney fees and other costs). The Federal Rules of Civil Procedure require a party seeking fees to specify the basis for his or her motion. See FED. R. CIV. P. 54(d)(2)(B).
As to expenses for the federal civil rights claims, which are generally recoverable, the Court is once again prevented from making a reasonableness determination. The request seeks fees but provides no explanation of their necessity or reasonableness. The request does not, in fact, explain the fees at all, beyond the barest description ("postage," for example, sums up $346.83 of expenses, without further explanation).
It is also true, as the Defendants contend, that Plaintiff's counsel may have confused taxable court costs with "expenses." Money paid to a court reporter for deposition transcripts and services, for example, are taxable costs, not fees. See 28 U.S.C. § 1920 (taxable costs); Zapata Gulf Marine Corp. v. Puerto Rico Maritime Shipping Auth., 133 F.R.D. 481, 484 (E.D. La. 1990). Mediation fees, filing, and subpoena fees, and charges incurred for service of process are also costs and should be claimed by applying to the clerk of the court with a bill of costs. 28 U.S.C. § 1920. Moreover, Serna may not recover mediation fees in this case. The Order sending these parties to mediation specifically stated, "The parties shall make independent arrangements for the payment of fees for the mediation. The costs of mediation are to be divided and borne equally by the parties unless otherwise agreed or ordered."
Finally, expert witness fees are not recoverable under civil rights legislation brought pursuant to 42 U.S.C. § 1983. See 42 U.S.C. § 1988(c); Hayes v. City of Seattle, 934 P.2d 1179, 1185 (Wash. 1997).
Sanctions
A court may impose Rule 11 sanctions when counsel fails to live up to its "duty of candor" before the court in making a request for attorneys fees. Blackwell v. Dep't of Offender Rehab., 807 F.2d 914, 915 (11th Cir. 1987). Rule 11 exists to "deter baseless filings in district court." Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990). The rule imposes a duty on lawyers to "certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and not `interposed for any improper purpose.'" Id. The rule also authorizes sanctions for failing to comply with its terms. Before a court can impose such sanctions sua sponte, however, it must give notice to the party and give the party an opportunity to show cause why sanctions should not be imposed.
The Court finds that attorneys Mery and Woodward have engaged in sanctionable conduct. Even accepting all the contentions in their reply brief as true, which the Court is under no obligation to do, the Court finds that Mr. Mery and Ms. Woodward have made material misrepresentations to the Court that might have been prevented if they had either maintained contemporaneous time records or made a more thorough review of the history of this litigation before submitting their motion for fees. In addition, Mery's and Woodward's duplicitous and excessive billing as described at length in this Order is egregious and, the Court finds, submitted in bad faith. The Court will therefore order Mr. Mery and Ms. Woodward to show cause, within ten days, why they should each not be sanctioned.
Ms. Woodward has been under the threat of sanctions since this Court permitted her to begin representation in the matter in federal court, by Order of January 14, 1999.
The Court has not determined that Mr. Boyd made misrepresentations to the Court. In addition, the Court must concede that, by its observation, Mr. Boyd was present in Court during the hours for which he has billed. However, the Court does find that Mr. Boyd overbilled for his services in this matter, and the Court will order Mr. Boyd, as well as Mr. Mery and Ms. Woodward, to submit a more realistic request for fees. In addition, should the Court ultimately award any fees in this case, such award will not include fees for time expended by any attorney in preparing this or any motion or exhibits for attorneys fees.
The Court does agree with Defendants that, in preparing their motion for fees, Plaintiff's counsel engaged in ample "cutting and pasting" of affidavits, and that the presentation of cookiecutter affidavits has resulted in, the Court suggests, inadvertent misrepresentations in Mr. Boyd's affidavit. An example of this is when Mr. Boyd suggests that the fees he has assessed are reasonable in light of his written agreement with Serna. There is no such agreement; Mr. Serna's agreements are with Woodward and Mery.
Finally, the Court emphasizes that it does not intend by this Order to suggest that Plaintiff's counsel are not entitled to reasonable compensation for the hours they expended on this litigation. The purposes of allowing for such compensation are sound. For this reason, the Court does not take the extreme position, at this point, that fees should be denied counsel. However, the Court will order that counsel resubmit, within ten days from the date of this Order, a request for fees that addresses not only the letter of this Order, but its spirit. In other words, counsel must carefully review their records and resubmit a request that is factually accurate and reasonable and that explains itself in sufficient detail for the Court to make a determination of the reasonableness of the request. If the new submission fails to accomplish these tasks, the Court will have no choice but to deny the request for fees in its entirety. In any event, counsel may not seek to recover fees from their client denied them, in whole or in part, by this Court.
CONCLUSION
ACCORDINGLY, it is ORDERED that Bruce Mery and Barbara Woodward shall show cause, within ten days from the date of this Order, why they should not be sanctioned for deliberate or reckless misrepresentations made in their request for attorneys fees. It is further ORDERED that Mr. Mery, Ms. Woodward, and Stephen Boyd shall resubmit their request for fees within ten days from the date of this Order. Defendants shall have eleven days from the date of that submission to respond to the new request.
SIGNED and ENTERED this 20th day of July 1999.