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Civil Action No. 3:99-CV-2522-D.
December 13, 2004
MEMORANDUM OPINION AND ORDER
Following a bench trial, the court found in favor of plaintiff Alyssa Wright ("Wright") on her claim for hostile work environment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., against defendant Blythe-Nelson ("Blythe-Nelson"), a Texas general partnership, and on her state-law assault and battery and intentional infliction of emotional distress claims against Blythe-Nelson and defendant James L. Blythe ("Blythe"). See Wright v. Blythe-Nelson, 2004 WL 1923871, at *1-*2 (N.D. Tex. Aug. 26, 2004) (Fitzwater, J.). One day after the court decided this case, the Supreme Court of Texas issued its opinion in Hoffman-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004). Based on Hoffman-LaRoche defendants move the court to amend its findings of fact and conclusions of law and its judgment. Wright applies pursuant to Fed.R.Civ.P. 54 for an award of attorney's fees under 42 U.S.C. § 2000e-5 and for out-of-pocket expenses and court costs under 28 U.S.C. § 1920. For the following reasons, the court grants in part and denies in part defendants' motion to amend findings of fact and judgment and reduces the amount of the judgment awarded against Blythe-Nelson for compensatory and exemplary damages for Wright's claim for intentional infliction of emotional distress. The court awards Wright attorney's fees in the sum of $121,212.00 and taxable costs of $2,618.15.
Although the caption of the motion is limited to amending the court's findings of fact, see Ds. Mot. Am. at 1, the body of the motion refers as well to amending the conclusions of law, see id. at 2.
I
The relevant background facts and procedural history of this case are set out in prior memorandum opinions and orders and in the court's findings of fact and need not be recounted at length. The court entered judgment holding that Blythe and Blythe-Nelson are jointly and severally liable for compensatory damages in the sum of $150,000 for intentional infliction of emotional distress and $50,000 for assault and battery; that Blythe is liable for exemplary damages in the sum of $150,000 for intentional infliction of emotional distress and $50,000 for assault and battery; that Blythe-Nelson is liable for exemplary damages in the sum of $150,000 for intentional infliction of emotional distress and $50,000 for assault and battery; and that Blythe-Nelson is liable for compensatory damages in the sum of $50,000 under Title VII for hostile work environment sexual harassment. The court also awarded prejudgment and postjudgment interest and taxable court costs.
Defendants maintain that the court must amend its findings of fact and conclusions of law and its judgment concerning Wright's claims for intentional infliction of emotional distress and assault and battery, contending that Hoffman-LaRoche precludes such recoveries where the gravamen of the action is sexual harassment, which is subject to a statutory cap on damages. Wright opposes the motion. She asserts that Hoffman-LaRoche (1) does not foreclose her recovery against Blythe-Nelson for intentional infliction of emotional distress because she presented sufficient evidence independent of her Title VII claim to support such an award; (2) does not foreclose her recovery against Blythe individually for intentional infliction of emotional distress because she had no statutory remedy against him individually; and (3) Hoffman-LaRoche applies to her claim for intentional infliction of emotional distress, because it is a gap-filler tort, but not to her action for assault and battery because it is not a gap-filler tort, so she can recover damages under Title VII and also for assault and battery.
II
The court turns first to Wright's claim for intentional infliction of emotional distress.
A
Hoffman-LaRoche reiterates the Texas Supreme Court's earlier pronouncement in Standard Fruit Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998), that the tort of intentional infliction of emotional distress is "a `gap-filler' tort that should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines." Hoffman-LaRoche, 144 S.W.3d at 447 (quoting Standard Fruit, 985 S.W.2d at 68). Building on the rationale of Standard Fruit, the court held that the tort of intentional infliction of emotional distress "should not be extended to thwart legislative limitations on statutory claims for mental anguish and punitive damages." Id. The court reasoned that, "[i]n creating the new tort, we never intended that it be used to evade legislatively-imposed limitations on statutory claims or to supplant existing common law remedies." Id. The tort is inapplicable when "the `actor "intends to invade some other legally protected interest," even if emotional distress results.'" Id. (quoting Standard Fruit, 985 S.W.2d at 67 (quoting Restatement (Second) of Torts § 47 cmt. a (1965))). Because the plaintiff in Hoffman-LaRoche brought an action for intentional infliction of emotional distress that was not independent of her statutory claim for sexual harassment under the Texas Commission on Human Rights Act, which "provide[d] a remedy for the same emotional damages caused by essentially the same actions, there [was] no remedial gap in th[e] case and thus no support for the award of damages under the intentional-infliction claim." Id. at 450.
Wright does not quarrel with the principle addressed in Hoffman-LaRoche. She instead argues that the new decision does not affect her recovery against Blythe-Nelson because she presented sufficient evidence independent of her Title VII claim to support an award for intentional infliction of emotional distress. She also contends that Hoffman-LaRoche does not preclude her from recovering against Blythe individually because she had no statutory remedy against him individually.
For example, she concedes that the decision "would require this Court to disallow recovery for IIED against Blythe-Nelson if the Court determines that no conduct independent of that supporting Wright's Title VII claims supports her IIED claim against Blythe-Nelson." P. Br. at 3 n. 1.
In Hoffman-LaRoche the Texas Supreme Court held that, to the extent the plaintiff adduced proof of conduct that arguably formed an independent basis for a claim for intentional infliction of emotional distress, the evidence was insufficient of itself to support the jury verdict. Hoffman-LaRoche, 144 S.W.3d at 450.
Taking the second argument first, Wright correctly points out that Hoffman-LaRoche does not require the court to amend its judgment against Blythe individually. Blythe was not individually her employer. Wright, 2004 WL 1923871, at *3 (Finding No. 25). "To be liable under Title VII, however, a person must be the plaintiff's employer." Id. at *11 (Concl. Law No. 47) (citing Grant v. Lone Star Co., 21 F.3d 649, 651 (5th Cir. 1994)). Because he was not, Wright had no Title VII claim against Blythe individually. Hoffman-LaRoche applies the principle of Standard Fruit to cases where there is an available statutory claim that has a legislatively-imposed damages cap. See Hoffman-LaRoche, 144 S.W.3d at 447. Title VII did not present such a claim, and Wright's recovery against Blythe remains as originally awarded.
The court agrees with Wright that her claim against Blythe-Nelson is not completely foreclosed. Hoffman-LaRoche holds "that when the gravamen of the plaintiff's complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort claim for intentional infliction of emotional distress." Id. at 441. There are such facts in the instant case, although they are more limited than those on which the court relied in its initial decision, and the result of excluding those that support Wright's Title VII claim against Blythe-Nelson is to reduce the damages award.
B
Having reconsidered the trial evidence, the court finds that some of Blythe's conduct on or after May 5, 1997 that supports Wright's claim for intentional infliction of emotional distress is not coterminous with his conduct that constituted hostile work environment sexual harassment under Title VII. The court re-adopts its findings that support Wright's recovery on this claim, see Wright, 2004 WL 1923871, at *1 (Findings Nos. 2-9), except as follows. It adds Finding No. 4a to provide as follows:
The sum of money, if paid now in cash, that would fairly and reasonably compensate Wright for physical pain and mental anguish from intentional infliction of emotional distress that was sustained in the past and that was independent of the damages she sustained due to hostile work environment sexual harassment is $25,000.
The court held in its initial decision why Wright cannot recover for conduct that occurred before May 5, 1997.
Regarding Wright's claim for intentional infliction of emotional distress, acts occurring before May 5, 1997 can be used to show background and context for acts that occurred after that date. The trier of fact can also consider Wright's entire relationship with Blythe in determining whether she has proved her claim for intentional infliction of emotional distress. Blythe's actions that preceded May 5, 1997 cannot, however, form the basis for awarding Wright damages for intentional infliction of emotional distress.Wright, 2004 WL 1923871, at *4 (Concl. Law No. 7) (citations omitted).
The court modifies Finding No. 9 to read:
The sum of $25,000 should be awarded to Wright from Blythe-Nelson for exemplary damages for intentional infliction of emotional distress.
The court modifies Conclusion of Law No. 18 to read:
Because Blythe committed intentional infliction of emotional distress during the course and scope of his employment with Blythe-Nelson, Blythe-Nelson is jointly and severally liable for the actual damages that the court has found in its findings of fact that Wright sustained independently of the damages she sustained due to hostile work environment sexual harassment. Moreover, even if he acted outside the course and scope of his employment, his status as a partner of Blythe-Nelson is sufficient to impute liability to Blythe-Nelson with regard to his actions taken in the workplace. See GTE, 998 S.W.2d at 618 (addressing vice-principal of corporation).
The court will enter today an amended judgment that incorporates these changes in the damages awarded to Wright from Blythe-Nelson.
III
The court next considers the effect of Hoffman-LaRoche on Wright's claim for assault and battery. Defendants maintain that Hoffman-LaRoche affects this cause of action because the "same logic and argument" that applies to her claim for intentional infliction of emotional distress applies to her assault and battery claim. See D. Mot. Am. at 2.
This argument fails with respect to Blythe-Nelson's liability for assault and battery because Hoffman-LaRoche is limited to the tort of intentional infliction of emotional distress and its function as a "gap-filler" tort. Assault and battery has not been held to be a "gap-filler" tort. Therefore, the fact that Blythe-Nelson is liable under Title VII for a hostile work environment does not immunize it from liability for assault and battery.
It fails, of course, as to Blythe because Title VII does not apply to him individually. See supra at § II.
Moreover, in the court's original decision it held that, "[t]o avoid awarding Wright a double recovery, the court has not included in its finding of the amount of physical pain and mental anguish damages for intentional infliction of emotional distress any damages for conduct that also constitutes assault and battery." Wright, 2004 WL 1923871, at *7 (Concl. Law No. 26). Therefore, given the distinctive nature of the two awards, the fact that Wright cannot recover damages against Blythe-Nelson on a claim for intentional infliction of emotional distress based on conduct that also constituted a hostile work environment under Title VII does not, as a factual matter, affect her recovery of damages for assault and battery.
The court therefore denies defendants' motion to the extent addressed to Wright's claim for assault and battery.
IV
The court now turns to Wright's application for attorney's fees, expenses, and costs.
A
Wright applies for an award of $310,070.20 in attorney's fees, $47,211.35 in out-of-pocket expenses, and $6,206.96 for court costs incurred in the prosecution of her Title VII claim. Blythe-Nelson does not contest that Wright is entitled to attorney's fees, nor does it question the reasonableness of the hourly rates of her attorneys. It appears instead to challenge on the following grounds the reasonableness of the requested amount: Wright enjoyed limited success in her Title VII claims, recovering only compensatory damages against only one of several defendants on one component of a single claim; the amounts she seeks in fees and expenses are disproportionately excessive in relation to the amount of compensatory damages she recovered, particularly considering that her attorneys represented her on a contingent fee arrangement; Wright does not distinguish the time she spent on unsuccessful Title VII claims or on non-Title VII claims against other defendants, although she recovered under Title VII against only Blythe-Nelson and on one Title VII claim and her state-law claims do not allow for recovery of fees and costs. Blythe-Nelson recognizes that the court must first calculate a lodestar fee and then adjust that amount based on the circumstances of the case, including the factors prescribed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). It contests the assertion that Mary A. Goodrich, Esquire ("Goodrich") makes in her affidavit that all Title VII claims were inextricably intertwined with other claims and that all hours should be considered. Blythe-Nelson points to entries that pertain to insurance coverage questions, preparation of experts whom the court excluded, responses to summary judgment motions that the court granted in part, the bankruptcy of dismissed defendant Mart Nelson, and certain expenses as illustrative of the commingling of fees and expenses for this case and insurance coverage and bankruptcy litigation. Blythe-Nelson focuses on two Johnson factors — whether the fee was fixed or contingent and the amount involved and the results obtained — to argue for a reduction in the amounts of fees and expenses sought.
Wright also requests an award of $80,000 for post-trial and appellate attorney's fees. The court declines to award contingent attorney's fees. Wright may apply for an award of such fees if and when they are incurred. Although state courts may prospectively award post-trial attorney's fees before they lose jurisdiction, federal courts operate under different jurisdictional constraints. This court's uniform practice is to deny such requests without prejudice to awarding them on a subsequent application based on the fees incurred. See, e.g., Nat'l Satellite Sports, Inc. v. Garcia, 2003 WL 21448375, at *3 (N.D. Tex. June 18, 2003) (Fitzwater, J.).
Wright maintains that the requested amount of attorney's fees — $310,070.20 — represents 1,727 hours expended prosecuting her action. Therefore, the average billing rate is approximately $180.00 per hour.
Blythe-Nelson has structured its brief in a manner that makes it somewhat difficult to organize its opposition arguments. Some contentions appear to be summarized and then explained later in greater detail; others appear to fall outside the scope of the summary presented at the outset. The court has attempted to set out and address all the grounds on which Blythe-Nelson relies in opposition to Wright's application.
Although filed by attorneys representing both defendants, the brief in opposition to Wright's application for fees and costs is styled as Blythe-Nelson's opposition, and the prayer for relief refers only to Blythe-Nelson. See D. Br. at 8. This is likely so because Wright is seeking attorney's fees only under Title VII, and only Blythe-Nelson is liable to her on this claim.
Blythe-Nelson appears to advance under the rubric of analyzing the Johnson factors arguments that pertain to the lodestar calculation.
B
To determine the amount of reasonable attorney's fees, the court must first calculate the lodestar fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Rutherford v. Harris County, Tex., 197 F.3d 173, 192 (5th Cir. 1999) (Fitzwater, J.). The party seeking reimbursement of attorney's fees has the burden of presenting adequate documentation of the hours reasonably expended. League of United Latin Am. Citizens #4552 (LULAC) v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1233 (5th Cir. 1997). Accordingly, the fee applicant must document the hours expended in a manner sufficient for the court to verify that the applicant has met her burden. La. Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (per curiam). The court may reduce or eliminate fee requests that are based on inadequate documentation. See LULAC, 119 F.3d at 1233; La. Power, 50 F.3d at 326. Attorneys are not required to "`writ[e] a book' to describe in excruciating detail the professional services rendered," LULAC, 119 F.3d at 1233 (quoting La. Power, 50 F.3d at 327); however, exceptionally terse descriptions of activities do not satisfy the applicant's burden, see, e.g., Cookston v. Freeman, Inc., 1999 WL 714760, at *2 (N.D. Tex. Sept. 14, 1999) (Fitzwater, J.) (citing examples of vague descriptions).1
Blythe-Nelson does not complain that Wright's billing records contain inadequate documentation. Nevertheless, the court can adjust the fee request sua sponte. See Curtis v. Bill Hanna Ford, Inc., 822 F.2d 549, 551 (5th Cir. 1987) (permitting court to adjust fee where requested amount was unopposed, because court is obligated to award only "reasonable attorney's fees"). A review of Wright's billing records demonstrates that the majority of billing entries are adequately documented with the date of the entry and a "short but thorough description of the services rendered." Walker v. City of Mesquite, TX, 313 F.3d 246, 252 (5th Cir. 2002) (citation omitted), cert. denied, 538 U.S. 926 (2003). There are, however, several entries that contain descriptions that are too vague for the court to determine the reasonableness of the time expended. Illustrative of these entries are seven entries by Goodrich totaling 43.5 hours, each containing the same vague description: "Prepare for trial." The court disallows these 43.5 hours as inadequately documented.
The following entries contain this description: July 17, 2004 (8.0 hours), July 18, 2004 (8.0 hours), July 19, 2004 (3.5 hours), July 21, 2004 (6.0 hours), July 22, 2004 (6.0 hours), July 23, 2004 (8.0 hours), and July 24, 2004 (4.0 hours). P. App. 41-45.
2
Blythe-Nelson inferentially raises the issue of billing judgment. "To determine the number of hours reasonably expended on a case, a plaintiff must show that billing judgment was exercised. Billing judgment is usually shown by the attorney writing off unproductive, excessive, or redundant hours." Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 2002) (citations omitted). If there is no evidence of billing judgment, the court may reduce "the hours awarded by a percentage intended to substitute for the exercise of billing judgment." Walker, 313 F.3d at 251 (citation omitted).
Goodrich states in her affidavit that Wright's counsel "removed all fees relating solely to [Wright's] claims against the defendants who were previously dismissed from the case and proceedings related solely to those defendants." P. App. 3. Also removed from billing statements were fees for work performed by paralegals that was not substantive in nature. Id. at 4. These items do not demonstrate billing judgment, however, because Wright does not have the right to bill attorney's fees to Blythe-Nelson for work on claims related solely to the dismissed defendants or for clerical tasks performed by paralegals. See Walker v. United States Dep't of Hous. Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996) (noting that removing hours for work that is not billable is not exercise of billing judgment); Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir. 2001) (holding that clerical work performed by paralegal is not recoverable as attorney's fees). The court therefore holds that there is no evidence of billing judgment contained in the billing records accompanying the fee application. "The proper remedy when there is no evidence of billing judgment is to reduce the hours awarded by a percentage intended to substitute for the exercise of billing judgment." Walker, 99 F.3d at 770. The court concludes that a 20% reduction is appropriate in this case.
3
Blythe-Nelson contends that further reduction is appropriate because Wright has failed to segregate expenses according to the action for which they were incurred. Wright indicates in her application that the claims against defendants are "inextricably intertwined" and thus "impossible to segregate by cause of action." P. Br. at 3. Blythe-Nelson's contention, however, does not seem to focus on Wright's application for fees related to non-Title VII claims (i.e., intentional infliction of emotional distress and assault and battery). Blythe-Nelson appears instead to complain that it should not be required to compensate Wright for attorney's fees incurred to litigate collateral lawsuits that did not relate to the merits of her Title VII claims, including actions associated with Blythe's insurance coverage and defendants' bankruptcies.
The Fifth Circuit has allowed the recovery of attorney's fees expended on collateral litigation when they were necessary to effectively litigate a Title VII claim. See Green, 284 F.3d at 662 (upholding Title VII plaintiff's award of attorney's fees for work performed on worker's compensation case where such work made available to plaintiff information "necessary to effectively litigate the Title VII claim"). The realities of this particular litigation persuade the court that Wright's participation in the insurance and bankruptcy actions were necessary to effectively litigate her Title VII claim. Both actions were pursued in light of circumstances that indicated that collecting a judgment would be especially difficult without some action to preserve or locate assets from which a judgment could be satisfied. Before trial, it became apparent that Wright's ability to collect a favorable judgment on her Title VII claim would be hindered, if not precluded, if she did not act to identify and preserve assets from which to satisfy a judgment. The court declines to reduce further the claimed hours based on Wright's failure to segregate the hours billed according to the lawsuit for which they were incurred.
For the reasons explained above, the court disallows 43.5 hours billed by Goodrich and removes them from the hours claimed (1,727-43.5 = 1,683.5) and reduces the resulting amount by 20% (1,683.5-336.7 = 1,346.8), resulting in 1,346.8 hours reasonably expended. The court then multiplies the number of hours reasonably expended by the reasonable rate to calculate the lodestar fee of $242,424.00 (1,346.8 hrs. x $180/hr. = $242,424.00).
C
The lodestar fee is presumed to reflect a reasonable fee, Walker, 99 F.3d at 771; however, in exceptional cases the court may enhance or reduce the fee depending on the circumstances of the case and after weighing the twelve Johnson factors, see Rutherford, 197 F.3d at 192. The court should be careful, however, not to double-count factors that are already considered in the calculation of the lodestar fee. See Walker, 99 F.3d at 771. Blythe-Nelson asserts that the lodestar fee should be adjusted downward because (1) Wright's billing contract provides for a contingency fee, (2) Wright obtained limited success in prosecuting her claims, and (3) the requested attorney's fees are disproportionate to the relief obtained.
The Johnson factors are: (1) the time and labor required for the litigation; (2) the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney was precluded from other employment by the acceptance of this case; (5) the attorney's customary fee; (6) whether the fee is fixed or contingent; (7) whether the client or the circumstances imposed time limitations; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the attorney-client relationship; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. "In applying [the Johnson factors], the district court must explain the findings and reasons upon which the award is based. However, it is not required to address fully each of the 12 factors." Curtis, 822 F.2d at 552.
1
Blythe-Nelson posits that the requested fee should be reduced based on the sixth Johnson factor. It contends that Wright's billing contract provided for payment of a contingent fee and that this supports reducing the fee. Blythe-Nelson correctly points out that the sixth factor cannot operate as a cap on attorney's fees, see Blanchard v. Bergeron, 489 U.S. 87, 93 (1989), but it argues that the court should consider the billing arrangement in deciding whether to reduce the amount of fees. Blythe-Nelson reasons that the contingent billing structure is helpful in determining the attorney's expectation as to the fee.
The terms of the billing arrangement are not contained in the record, and it is therefore of limited assistance in illuminating the attorney's expectations. Moreover, fee shifting statutes, including 42 U.S.C. § 2000e-5(k), "contemplate a reasonable compensation for the time and effort expended for the prevailing plaintiff." Blackmer v. Monarch Holdings (USA) Inc., 2002 WL 32361935, at *4 (S.D. Tex. July 11, 2002). "If a fee agreement provides for less than a reasonable fee, the defendant should be required to pay the higher amount." Id. (citing Blanchard, 489 U.S. at 93). Having considered this factor, the court declines to adjust the lodestar fee.
2
Blythe-Nelson argues under the eighth Johnson factor that the court should reduce the lodestar fee because it is excessive in light of the limited success Wright accomplished in prosecuting her Title VII claims. Specifically, Blythe-Nelson points out that Wright was unsuccessful on her Title VII quid pro quo and retaliation claims and the court dismissed several defendants from Wright's suit before trial.
Blythe-Nelson also contends that the eighth factor supports a reduction because the amount actually awarded on her claims is only a fraction of the $10 million sought on all her claims. The court declines to consider this argument because this figure of damages sought is not supported by the record.
It is appropriate to adjust downward an applicant's fee when the applicant encounters limited success prosecuting her claims. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). "[T]he extent of a plaintiff's success is a crucial factor that the district courts should consider carefully in determining the amount of fees to be awarded." Id. at 438 n. 14. This factor holds particular importance where the "prevailing" party has succeeded on only some of the asserted claims for relief. Id. at 434. In these circumstances, the court is required to examine plaintiff's success considering the litigation in its totality. See Hensley, 461 U.S. at 440.
Where a plaintiff has obtained excellent results, [her] attorney should recover a fully compensatory fee. . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.Id. at 435-36 (citations and footnote omitted).
The success Wright achieved is limited when considered in light of the claims she asserted. Before the case went to trial, the court dismissed Wright's claims against nine individual defendants and two corporate defendants and also dismissed her claims for violation of the Violence Against Women Act, negligence, conspiracy, and Title VII retaliation. Each of these dismissed claims undoubtedly involved factual and legal research, attorney conferences, and other expenditures of time and resources for which Wright did not obtain a favorable judgment. She proceeded on Title VII quid pro quo and hostile work environment claims and on state law actions for intentional infliction of emotional distress and assault and battery. Following a bench trial, the court found that Wright did not prove her quid pro quo claim. A successful quid pro quo claim would have allowed her to obtain relief that could have been greater than the statutorily-capped damages actually awarded on her hostile environment claim. Moreover, the court did not find that Blythe was her employer, foreclosing direct Title VII liability as to him. Wright's success was limited. Cf. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th Cir. 1998) (concluding that plaintiff's success was limited where she asserted multiple theories of pregnancy and gender discrimination but prevailed on only one theory and only as to pregnancy discrimination and obtained a fraction of the damages sought). The court concludes that an adjustment to the lodestar fee is appropriate based on her limited success.
There is no precise formula to determine the appropriate amount by which the lodestar fee should be reduced. Hensley, 461 U.S. at 436. In this case, the court considers the foregoing discussion of Wright's limited success. The court also takes into consideration, however, that Wright enjoyed substantial success with respect to her hostile environment claim, in that she obtained the statutory limit in compensatory damages. Cf. Green, 284 F.3d at 663 (concluding that plaintiff was highly successful despite not prevailing on all claims when she obtained the statutory cap in compensatory damages). Having considered this "most critical factor," the court concludes that a reduction of the lodestar fee by 50% is appropriate.
3
Blythe-Nelson also maintains that a reduction of the requested fee is appropriate because the fee is grossly disproportionate to the recovery Wright obtained on her Title VII hostile work environment claim. Blythe-Nelson notes that Wright seeks attorney's fees in excess of six times the amount of the damages awarded. "An attorneys' fee award does not need to be commensurate with the actual amount of dollars awarded to the plaintiff." Green, 284 F.3d at 663 (citing City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)). Nevertheless, "proportionality is an appropriate consideration in the typical case." West v. Nabors Drilling USA, Inc., 330 F.3d 379, 395 (5th Cir. 2003) (Fitzwater, J.) (quoting Hernandez v. Hill Country Tel. Coop., 849 F.2d 139, 144 (5th Cir. 1988)). The court declines to reduce the lodestar fee because the adjustments made on other grounds yield a fee that does not require further adjustment on this basis.
Accordingly, the court holds that Wright is entitled to recover from Blythe-Nelson the sum of $121,212.00 ($242,424.00-$121,212.00 = $121,212.00).
V
Wright moves under 28 U.S.C. § 1920 for reimbursement of $47,211.35 in out-of-pocket expenses and $6,206.96 in court costs. Wright bears the burden of supporting her request for costs and expenses with evidence documenting the costs incurred. See Waggoner v. Trans Union, LLC, 2003 WL 22838718, at *2 (N.D. Tex. Nov. 24, 2003) (Fish, C.J.).
Wright moves for expenses and costs exclusively under § 1920. The court need not therefore consider whether the amounts sought are recoverable under any other statute.
A
Wright classifies her out-of-pocket expenses in the following categories and amounts: (1) photocopies, $30,565.96; (2) long distance charges, $2,125.36; (3) travel expenses, $943.50; (4) courier fees, $5,540.42; (5) facsimile charges, $1,243.50; (6) legal research, $4,311.96; (7) postage, $384.15; and (8) deposition expenses, $2,096.50. Blythe-Nelson does not explicitly oppose an award of expenses and costs separate from its opposition to the requested attorney's fees. Incorporated into Blythe-Nelson's argument on attorney's fees is the contention that Wright's requested costs should be reduced because she failed to segregate them between successful and unsuccessful claims. [ See D. Br. at 3] Blythe-Nelson does not specifically argue that the court should apply a percentage reduction to the requested costs. The context in which it seeks reduction, and its failure to point to specific amounts that should be reduced or eliminated, suggest, however, that Blythe-Nelson seeks a percentage reduction. The court declines to impose such a reduction in the costs requested. See Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1101 (5th Cir. 1982) ("[W]e know of no authority for a percentage reduction of either costs . . . or expenses . . . based on the factors used by the district court to reduce attorneys' fees. . . . While expenses incurred extravagantly or unnecessarily should be disallowed, this should be done on an item-by-item basis." (footnote omitted)), overruled on other grounds by Int'l Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir. 1986) (en banc).
B
The court now turns to Wright's specific requests. It disallows her claim for long distance charges, courier fees, facsimile charges, legal research, and postage because these types of costs are not recoverable under § 1920. See Waggoner, 2003 WL 22838718, at *4; Communications Workers of Am. v. Ector County Hosp. Dist., 241 F.Supp.2d 617, 637-38 (W.D. Tex. 2002), aff'd on other grounds, ___ F.3d ___, 2004 WL 2730105 (5th Cir. Dec. 1, 2004).
Wright seeks $30,565.96 for photocopies. "Before the district court can tax costs for photocopies, it must find that the copies for which costs are sought were necessarily obtained for use in the litigation." Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (per curiam) (citation omitted). Although Wright is not required to "identify every xerox copy made for use in the course of legal proceedings," Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 286 (5th Cir. 1991), she is expected to "demonstrat[e] that reproduction costs necessarily result from that litigation," id. Wright's billing statements contain 33 pages of entries for photocopies. Each entry contains the date, the person who made the copies, and the cost. Wright does not, however, categorize the photocopies or otherwise indicate what was copied or how it was used. Beyond Goodrich's broad statement that all the expenses were necessarily incurred in prosecuting Wright's lawsuit, see P. App. 8, she has provided no information by which the court can determine the necessity of the photocopies. Wright has therefore failed to meet her burden to show necessity, and the court denies her request for reimbursement of photocopy costs. Cf. Home Depot, U.S.A., Inc. v. Fed. Ins. Co., 2003 WL 470545, at *2 (E.D. Tex. Feb. 24, 2003); Zapata Gulf Marine Corp. v. Puerto Rico Mar. Shipping Auth., 133 F.R.D. 481, 484 (E.D. La. 1990).
Wright seeks travel expenses in the amount of $943.50. She provides the date, amount, and vendor for each disbursement, but she neither identifies the traveler nor explains why the expenses were incurred. Some travel expenses are recoverable under § 1920, see Holmes, 11 F.3d at 64-65 (deposition witness' travel costs recoverable under § 1920(3), through § 1821), but not all travel expenses are, see Communications Workers, 241 F.Supp.2d at 638 (attorney's travel expenses not recoverable under § 1920 (citing Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993); Roche v. City of Normandy, 566 F.Supp. 37 (E.D. Mo. 1983))). Wright has not met her burden of demonstrating that the travel expenses she seeks are within the class of those that are recoverable under § 1920 or that they were necessarily incurred in the litigation.
Wright requests deposition expenses in the amount of $2,096.50. Costs related to taking depositions and obtaining stenographic copies of depositions are allowed if the materials were necessarily obtained for use in the case. Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999); Waggoner, 2003 WL 22838718, at *2. Included in this sum are three disbursements to Certified Legal Texas Video: a CD-ROM copy of Blythe's deposition for $365.00 on April 7, 2004 and two disbursements on February 16, 2001 for $743.50 and $988.00. Wright proffers no explanation for the February 16, 2001 disbursements and has not carried her burden of demonstrating their necessity. The court allows the April 7, 2004 disbursement of $365.00 because Blythe-Nelson does not specifically object to this disbursement, and the court concludes that obtaining a copy of a defendant's deposition was necessarily obtained for use in this case.
Wright seeks court costs in the amount of $6,206.96. Although Wright filed more than 160 pages of billing records with her motion, she provided no explanation of how she computed this sum. "Courts are not accountants[.]" Copper Liquor, 684 F.2d at 1098. "Those who are entitled to recover costs and expenses bear the burden of furnishing a reasonable accounting." Id. Rather than disallow her request for costs due to this deficiency, the court in its discretion will consider disbursements for items that appear to be available under § 1920. These costs are: (1) subpoenas, $523.12, (2) witness fees, $1,548.43, (3) court reporter fees, $131.60, and (4) filing fees, $575.00. The court allows all these fees except $525.00 of the $575.00 requested for filing fees. Wright requests reimbursement for $525.00 in filing fees paid to the United States Bankruptcy Court. Blythe-Nelson inferentially objects to including filing fees paid in another action. Wright has not demonstrated that such fees are awardable under § 1920(1), and the court disallows them.
Wright does not specify the authority under which she makes her request. The court treats her motion as being made under § 1920.
Blythe-Nelson asserts no specific objection to the remaining costs that Wright requests. The court has reviewed the billing records for these costs and finds that they are reasonable in amount and necessity, with the exception of the filing fees disallowed above. The court allows Wright's requested costs in the amount of $2,253.15.
Accordingly, the court holds that Wright may recover taxable costs under § 1920 of $2,618.15 ($365.00 for the copy of Blythe's deposition and $2,253.15 for the costs of subpoenas, witness fees, court reporter fees, and filing fees).
* * *
For the reasons set out, the court reduces its award of compensatory and exemplary damages against Blythe-Nelson for intentional infliction of emotional distress to eliminate damages that were not independent of her Title VII claim. The court awards Wright $121,212.00 in attorney's fees and $2,618.15 in taxable costs under § 1920.
SO ORDERED.