May 14, 2001
In this case, plaintiff charged defendant with violations of ADEA, ERISA, and state law. At trial, the court dismissed all claims but the claim arising under ADEA. After deliberation, the jury returned a verdict in favor of plaintiff in the sum of $35,000.00. The jury also found that defendant had acted willfully, resulting in a doubling of the jury's verdict. After trial, the court granted plaintiffs motion for front pay and awarded him $28,490.80, and denied defendant's motion for judgment as a matter of law or for new trial. Defendant timely appealed to the United States Court of Appeals for the Fifth Circuit, which reversed and rendered judgment in its favor. Plaintiff's request for en banc rehearing was unsuccessful, but his petition to the United States Supreme Court for a writ of certiorari was granted.
On June 12, 2000, a unanimous Court reversed, finding:
The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination. Given the evidence in the record supporting petitioner, we see no reason to subject the parties to an additional round of litigation before the Court of Appeals rather than to resolve the matter here. The District Court plainly informed the jury that petitioner was required to show "by a preponderance of the evidence that his age was a determining and motivating factor in the decision of [respondent] to terminate him." Tr. 7 (Jury Charge) (Sept. 12, 1997). The court instructed the jury that, to show that respondent's explanation was a pretext for discrimination, petitioner had to demonstrate "1, that the stated reasons were not the real reasons for [petitioner's] discharge; and 2, that age discrimination was the real reason for [petitioner's] discharge." Ibid. (emphasis added). Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that respondent had intentionally discriminated. The District Court was therefore correct to submit the case to the jury, and the Court of Appeals erred in overturning its verdict.Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153-54 (2000). In accordance with that decision, the Fifth Circuit affirmed the judgment, including the award of front pay. This cause is presently before the court on plaintiff's motion for attorneys' fees.
Plaintiff was primarily represented in this matter by the law firm of Waide, Chandler, Fleitas, P.A., and has requested fees in the amount of $288,111.38, which represents 1,186.4 hours of work by seven attorneys, a legal assistant, and a law clerk billed at rates of $50.00 to $200.00 per hour, plus a fifty per cent enhancement. Plaintiff also seeks enhanced fees in the amount of $69,495.00 for the work of three attorneys who assisted with the Supreme Court proceedings. Two of these attorneys, Honorable Alan B. Morrison and Honorable Michael J. Quirk, are associated with the non-profit public interest law firm, the Public Citizen Litigation Group. The other attorney, Honorable Eric Schnapper, is a professor at the University of Washington School of Law in Seattle, Washington. In total, plaintiff requests fees in the sum of $357,606.38. As for expenses, plaintiff seeks a combined total of $10,131.54. All counsel, excepting Morrison and Quirk, have submitted the requisite affidavits discussing the applicability of the Johnson factors to the instant case and a detailed account outlining the hours expended and the tasks performed. Plaintiff has also presented affidavits from local attorneys who opined that hourly rates between $125.00 and $200.00 are reasonable for prosecuting this type of lawsuit and Honorable George Cochran, a professor at the University of Mississippi Law School, who avers that lead counsel, Honorable Jim Waide, Morrison, and Schnapper should be compensated at the "maximum allowable" rate.
In response, defendant lodges numerous objections. Generally, it maintains that a large number of counsel's hours were excessive, redundant, or unnecessary or could have been performed by clerical staff. More specifically, defendant opposes counsel's hourly fee requests and any award to outside counsel. In defendant's estimation, reasonable attorneys' fees in this case should total no more than $66,638.35. It also opposes a portion of plaintiff's request for expenses, though it lodges no objection to the remainder.
In determining a reasonable attorneys' fee, the court must first calculate the "lodestar" by multiplying the number of hours reasonably spent on the litigation times a reasonable hourly billing rate. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The court should consider the twelve Johnson factors "when analyzing the reasonableness of the hours expended and the hourly rate requested." Watkins, 7 F.3d at 457. Once the lodestar is determined, it may be adjusted, either upwardly or downwardly, "if the Johnson factors, not included in the reasonable fee analysis, warrant the adjustment." Id. However, the lodestar is presumed reasonable and should be modified only in the exceptional case. Id.
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Because these factors are well known to every practicing attorney in this circuit, the court finds no reason to enumerate them here; each factor will be considered in due course.
In determining the nature and extent of the attorneys' services, the Fifth Circuit's discussion of the first Johnson factor — the time and labor required — is instructive:
It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.Johnson, 488 F.2d at 717. In Coalition to Preserve Houston v. Interim Board of Trustees of the Westheimer Independent School District, 494 F. Supp. 738 (S.D.Tex. 1980), appeal dismissed, 450 U.S. 901 (1981), the district court expanded on this concept, stating:
The Court distinguishes three categories of the type of work performed: (1) strictly legal activities, which include legal research, writing, and court appearances; (2) legally related activities, which include conferences, telephone calls, and other correspondences; and (3) routine administrative activities, which include travel time, clerical work, and compilation of facts and statistics. For purposes of the application of different rates to different types of work, the first category will be referred to as work on the merits of the case; the second category will be called informal communications; and the third category will be referred to as non-legal work.Id. at 745 -46. Furthermore, fees should not be allowed for hours which were not reasonably expended, i.e., hours which are excessive, redundant, unnecessary, or inadequately documented. Hensley v. Eckerhart, 461 U.S. 424, 432-34 (1983).
This approach has been adopted by this court in past decisions. For example, in Shirley v. Chrysler First, Inc., 763 F. Supp. 856 (N.D.Miss. 1991), aff'd, 970 F.2d 39 (5th Cir. 1992), this court categorized plaintiff's requested attorney's fees and elaborated on the Texas court's guidelines:
Work on the merits entails drafting motions, responses, and a memorandum; legal research and brief writing; preparation of clients for and personal participation in depositions; and conferences with the court. Informal communications are comprised of conferences with opposing counsel, clients, and witnesses; all correspondence involving defense counsel . . . or the court; and review of motions, responses, orders, [and] opinions. . . . Other than travel, Category 3 is preparation of notices and cover letters, normally performed by a secretary; and review of a cancellation of a pre-trial conference, a simple scheduling matter.Shirley, 763 F. Supp. at 858 n. 3 (quoting Cobbs v. Grenada County, Mississippi, No. WC84-1365-S-O, at 12 n. 17 (N.D.Miss. Sept. 13, 1989) (unreported opinion)). This method of calculating attorney's fees was approved by the Fifth Circuit in Watkins. See Watkins, 7 F.3d at 459 (citing Johnson and Shirley).
In light of the above authorities and this court's experience, the court makes the following conclusions as to each attorney, legal assistant, and law clerk employed by plaintiff:
(1) Beginning with Jim Waide, of the 757.3 hours listed, 587.10 hours fit within Category One; 65.25, within Category Two; and 28.45 hours, within Category Three. The court has disallowed 76.50 hours as excessive, redundant, or unnecessary.
(2) of the 158.50 hours listed by David A. Chandler, 127.00 hours fit within Category One; 5.25 hours, within Category Two; and 7.05 hours, within Category Three. The court has disallowed 19.20 hours as excessive, redundant, or unnecessary.
(3) of the 94.00 hours listed by Victor I. Fleitas, 60.20 hours fall in Category One; 1.75, in Category Two; and 14.45, in Category Three. The court has disallowed 17.60 hours as excessive, redundant, or unnecessary.
(4) As to the 9.80 hours listed by Lisa S. Rohman, 6.50 hours fall in Category One; 0.00, in Category Two; and 3.10, in Category Three. The court has disallowed 0.20 hours as excessive, redundant, or unnecessary.
(5) of the 20.70 hours listed by Martin D. Crump, all 20.70 hours fit within Category One. The court has disallowed no hours as excessive, redundant, or unnecessary.
(6) of the 16.60 hours listed by Luke C. Fisher, IV, all 16.60 hours fall in Category One. The court has disallowed no hours as excessive, redundant, or unnecessary.
(7) of the 4.9 hours listed by William H. Brewer, 2.90 hours fit within Category One; 0.40, within Category Two; and 1.60 hours, within Category Three. The court has disallowed no hours as excessive, redundant, or unnecessary.
(8) As to the 37.20 hours expended by the legal assistant, the court has disallowed 6.80 hours as excessive, redundant, or unnecessary.
(9) As to the 87.40 hours expended by the law clerk, the court has disallowed no hours, as none were excessive, redundant, or unnecessary.
As can be seen from the above calculations, the court has made only minimal cuts in the requested hours. The court is well familiar with the reputation of this firm and its "no frills" approach to litigation. Quite simply, this firm does not have time to "pad" its fee applications, as it represents one of the busiest plaintiffs' firms in this district. On many occasions, the court has had opportunities to analyze counsel's time sheets, and has never found, even after meticulous scrutiny, evidence that counsel are wasteful with their time and resources or that they have inadequately described the services rendered. These observations hold equally true in their handling of this case. Furthermore, though there were situations in this case when more than one attorney, for example, researched legal issues or engaged in other trial or appellate preparations, even when those hours are totaled, they remain far below the number of hours that many practitioners would have devoted to similar tasks.
More problematic, however, is the hourly fee of $200.00 requested by Mr. Waide. Certainly, Mr. Waide has presented affidavits from other attorneys averring this to be a reasonable hourly fee for this type of case, especially in light of Mr. Waide's acknowledged level of expertise in employment law and his overwhelming success at the Supreme Court. And indeed, he has presented evidence that defense counsel himself charges that sum. There is, however, also evidence that Mr. Waide's usual fee is $150.00 per hour, including, quite ironically, defense counsel's unrefuted affidavit that on every occasion he has submitted fee application affidavits on behalf of Mr. Waide, he "has always been informed by Mr. Waide that his hourly rate is $150 per hour." With that in mind, the court believes that an hourly sum of $150.00 is reasonable. Although defendant suggests substantially reduced rates for the other attorneys in this firm, it fails to offer any proof that their requested hourly rates are somehow out of line with prevailing norms in this district. Defendant does not question the rates charged for the work of the legal assistant or the law clerk, $50.00 and $65.00, respectively, and those hourly sums will therefore be awarded.
Therefore, giving due consideration to the time and labor involved, the customary fee, the lack of preclusion of other employment, the contingent nature of the fee, the minimal impact of time limitations, the desirability of the case, the nature and length of the relationship with plaintiff, and awards in similar cases, the appropriate lodestar for each person involved is as follows:
(1) Waide —
587.10 hours x $150.00 per hour = $ 88,065.00 65.25 hours x $105.00 per hour = 6,851.25 28.45 hours x $ 85.00 per hour = 2,418.25 $ 97,334.50.
(2) Chandler —
127.00 hours x $125.00 per hour = $ 15,875.00 5.25 hours x $ 80.00 per hour = 420.00 7.05 hours x $ 60.00 per hour = 423.00 $ 16,718.00.
(3) Fleitas —
60.20 hours x $125.00 per hour = $ 7,525.00 1.75 hours x $ 80.00 per hour = 140.00 14.45 hours x $ 60.00 per hour = 867.00 $ 8,532.00.
6.50 hours x $125.00 per hour = $ 812.50 0.00 hours x $ 80.00 per hour = 0.00 3.10 hours x $ 60.00 per hour = 186.00 $ 998.50.
20.70 hours x $110.00 per hour = $ 2,277.00 0.00 hours x $ 65.00 per hour = 0.00 0.00 hours x $ 45.00 per hour = 0.00 $ 2,277.00.
(6) Fisher —
16.60 hours x $125.00 per hour = $ 2,075.00 0.00 hours x $ 80.00 per hour = 0.00 0.00 hours x $ 60.00 per hour = 0.00 $ 2,075.00.
(7) Brewer —
2.90 hours x $150.00 per hour = $ 435.00 .40 hours x $105.00 per hour = 42.00 1.60 hours x $ 85.00 per hour = 136.00 $ 554.00.
(8) Legal Assistant —
30.40 hours x $ 50.00 per hour = $ 1,520.00.
(9) Law Clerk —
87.40 hours x $ 65.00 per hour = $ 5,681.00.
These calculations result in a fee award to plaintiff of $135,690.00 for the work of Waide, Chandler, Fleitas, P.A. The court now turns to the question of fees for the work of the attorneys who assisted with the Supreme Court work. As to Messrs. Morrison and Quirk, the answer is simple: because they failed to outline their expenditure of hours in accordance with the requirements of Johnson and its progeny, they are not entitled to compensation from defendant. Merely reciting tasks performed without notations of dates or time expended is not even minimally sufficient to allow this court to perform its duty of ensuring that defendant is not assessed for time that is excessive, redundant, or unnecessary.
As to Prof. Schnapper, the court finds that his time, with some adjustment, is compensable. Although defendant generally believes that Prof. Schnapper's efforts were "duplicative, unnecessary, and unreasonable," it can find support for that proposition only in the fact that both he and Mr. Waide committed time to drafting memoranda to the Supreme Court. Certainly, Mr. Waide did not need his hand held during the Supreme Court proceedings; however, the court cannot fault him for bringing in a more seasoned Supreme Court veteran who is indisputably an expert in employment law. Indeed, Prof. Schnapper has represented parties in more than fifty cases before the Supreme Court and was plaintiffs' counsel in two of the decisions cited by the Court in Reeves. After mature consideration, the court must agree with Prof. Schnapper's representation that his "extensive preexisting familiarity with the substantive legal issues presented by this case, and with Supreme Court practice, enabled [him] to draft briefs in considerably less time than would have been required for an attorney without similar expertise." With that said, however, the court has disallowed 11.9 hours as excessive, redundant, or unnecessary.
Prof. Schnapper voluntarily excluded fifteen hours of travel time and five hours of telephone calls. Though the court appreciates counsel's "exercise of billing judgment," it must also note that his travel time to Washington, D.C., for the oral argument before the Supreme Court would have been compensable, as he assisted Mr. Waide at counsel table during the proceedings.
The next question becomes whether Prof. Schnapper should be compensated at his requested rate of $300.00 per hour, a rate which has been awarded to him in other cases. Defendant argues generally that "the rate at which any fees of the outside counsel would be placed should be no higher than the prevailing rate for the attorneys in this district." However, it offers no evidence that Schnapper's requested fee is out of line with the fees charged by other attorneys of his prominence. In response, plaintiff argues that he "could certainly not have obtained [Schnapper's] assistance with the understanding that [he] could only bill for Mississippi rates." Having carefully considered the matter, the court finds that Prof. Schnapper should be awarded an hourly fee in excess of that given to attorneys in this district. Even a cursory review of the list of cases in which Prof. Schnapper has been involved seals this court's preliminary observation that he is not only "indisputably an expert in employment law" but also an expert in municipal liability and the intricacies of Supreme Court practice. Therefore, giving due consideration to each of the Johnson factors, the appropriate lodestar for Prof. Schnapper is as follows:0.00Category One: 84.00 hours x $300.00 per hour = $ 25,200.00 Category Two: 1.40 hours x $150.00 per hour = 210.00 Category Three: 0.00 hours x $125.00 per hour = $ 25,410.00. This results in a total fee award of $161,100.00.
This does not, however, conclude the matter, as plaintiff has requested a fifty per cent enhancement of this lodestar amount. "There is a strong presumption that the lodestar is the reasonable fee," Walker v. US. Department of Housing and Urban Development, 99 F.3d 761, 771 (5th Cir. 1996), and plaintiff bears the burden of proving that an upward adjustment is necessary to the determination of a reasonable fee. Id. In this case, plaintiff seeks enhancement based primarily on two factors: the degree of success obtained and the delay in payment. Defendant, of course, opposes any enhancement.
When making an enhancement, the court must explain with some specificity the reasons underlying its decision, including how the appropriate Johnson factors were applied. Id. In particular, the court must be careful "`not to double count a Johnson factor already considered in calculating the lodestar.'" Id. (citation omitted). As to the amount awarded for the work performed by Prof. Schnapper, the court believes the award of the higher hourly rate results in a fair and reasonable award and adequately compensates Prof. Schnapper for his time expended in the Supreme Court portion of this case; therefore, no enhancement will be given for his portion of the lodestar amount. However, as will be explained more fully below, plaintiff is entitled to an enhancement for the Supreme Court portion of this case which were performed by the firm of Waide, Chandler, Fleitas, P.A., not only because of the success obtained but also because of the complexity of the issues and the skill of the attorneys involved. Each of these factors will be discussed, as will the delay factor which does not affect the court's decision.
As to the success factor, defendant cannot seriously argue that plaintiff was not entirely successful in this case. As to the ADEA claims, he achieved the ultimate success — a 9-0 reversal in the United States Supreme Court with a complete reinstatement of the judgment in his favor. Indeed, the Court was so firm in its decision that the court of appeals had committed error that it saw "no reason to subject the parties to an additional round of litigation before the Court of Appeals rather than to resolve the matter here." Reeves, 530 U.S. at 153. Granted, plaintiff did not go far at trial on the ERISA and state law claims, but even if those claims had proceeded to judgment in favor of plaintiff, he would probably not have been entitled to any greater measure of damages than he achieved on the age claim alone. But the success of this case stretches beyond the monetary award, as Reeves resolved conflicts in the circuits on two points — the proper standard governing judgment as a matter of law and the evidentiary requirements for establishing discrimination by an employer. Though defendant disputes the impact of Reeves, as does the Fifth Circuit itself, this court disagrees and believes that Reeves rectified a misreading of St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), that had plagued the Fifth Circuit. Be that as it may, Reeves is the law, and plaintiff was entirely responsible for creating that law.
In Vadie v. Mississippi State University, 218 F.3d 365 (5th Cir. 2000), the Fifth Circuit disputes that Reeves effected any change in Fifth Circuit precedent with regard to the pretext-plus requirements of proving discrimination, instead relegating the original panel opinion in Reeves to the status of an anomaly. Id. at 373 n. 23 However, the Fifth Circuit reaches this strained conclusion in reliance on Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996), a case clearly abrogated by Reeves. See Reeves, 530 U.S. at 140. But see Vadie, 218 F.3 at 373 n. 23 ("the Supreme Court, in deciding Reeves, plainly affirmed [ Rhodes]. . . . [which] continues to be the governing standard in this circuit").
Interestingly, defendant did not even address the next factor, the delay in payment. "In compensating for a delay, the district court may either grant an unenhanced lodestar based on current rates, or calculate the lodestar using the rates applicable when the work was done and grant a delay enhancement. It may not do both." Walker, 99 F.3d at 773 (internal citations omitted). The quandary the court finds itself in on this point is this: In 1996, when this case began, Mr. Waide's hourly rate was $150.00, see Gonzales v. Guyton, 1:94CV15-S-D (N.D.Miss. Apr. 30, 1996) (Waide requested $150.00 per hour in section 1983 case but failed to submit affidavits from local attorneys regarding reasonable hourly fee; court awarded $125.00 per hour), and in 2000, his hourly rate had not changed. See Artex International, Inc. v. Pope, No. 1:00CV223-JAD (N.D.Miss. Aug. 3, 2000) (in pre-discovery disclosure of core information in RICO case, Waide stated that his client, defendant Earl Pope, "will be billed $150 per hour"). Though the court is theoretically inclined to grant an enhancement based in part on the five-year delay in payment of plaintiff's attorneys' fees, a delay occasioned wholly by defendant's appeal of a valid jury verdict, it is legally foreclosed from doing so. That, of course, does not end the court's consideration of enhancement, and it turns now to the issues of complexity of the issues and the skill of the attorneys, which are inextricably entwined.
Johnson factors two and three — the novelty and complexity of the issues involved and the skill required — may underpin enhancement "`in rare cases supported by specific evidence in the record and detailed findings by the court.'" Walker, 99 F.3d at 771-72 (citation omitted). Initially, the court did not perceive this to be a difficult case. In this court's mind, it represented another routine, fact-specific employment discrimination case involving attorneys who had faced each other on numerous other occasions. With that said, the court is not inclined to grant any enhancement for the work plaintiffs attorneys performed through the court's ruling on front pay and the denial of the motion for judgment as a matter of law. However, after defendant appealed and successfully convinced the appellate court that the evidence was insufficient to support the jury verdict, the issues became significantly more complex with questions, as the Supreme Court phrased them, of when an appellate court can appropriately "substitute its judgment concerning the weight of the evidence for the jury's," Reeves, 530 U.S. at 153, and whether a plaintiff "must always introduce additional, independent evidence of discrimination" to survive a motion under Fed.R.Civ.P. 50. Id. at 149. As any law student knows, a grant of certiorari by the United States Supreme Court is rare, and it takes not only a high level of legal acumen but also ingenuity and creativity to convince the Court that a case is worthy of further review, especially in a case, such as this, which so heavily turned on its facts. Indeed, as Prof. Cochran observed, "[T]he fact that the Court granted certiorari after having previously refused to hear . . . cases that presented essentially the same issues raised by [ Reeves]" is a reflection of the quality of the work performed in this case. Although Mr. Waide was self-effacing during oral argument before the Court, stating several times, "I'm not smart enough to figure all this," Oral Argument, 2000 WL 346179, at *7 (Mar. 21, 2000), the court knows differently, having often struggled itself with Mr. Waide's ingenious arguments and interesting positions. The upshot is that the court does not believe the lodestar figure for the time spent on the Supreme Court proceedings fairly and reasonably compensates plaintiff for the work performed by the Waide, Chandler, Fleitas firm, and therefore, he is entitled to an enhancement based on the above enumerated factors for that portion of his attorneys' work. From July 2, 1999, when the first research for the certiorari petition began, through June 12, 2000, when Mr. Waide called his client with news of the Supreme Court decision, the lodestar figure was $65,457.50. In this court's view, an enhancement of that figure by twenty-five per cent results in a more accurate reflection of the quality of the work performed by plaintiff's attorneys. With the enhancement, then, plaintiff is entitled to recover of defendant, attorneys' fees in the sum of $177,464.38.
Earlier, Mr. Waide had successfully argued the issue of qualified immunity and private individuals before the Supreme Court in Wyatt v. Cole, 504 U.S. 158 (1992).
As previously noted, this figure does not include any hours expended by Prof. Schnapper.
The court turns finally to the issue of expenses. In that regard, plaintiff requests expenses in the sum of $9,314.54 ($8,396.54 for Waide, Chandler, Fleitas, and $918.00 for Eric Schnapper). Defendant objects to a limited number of expenditures, none of which plaintiff disputes. First, it objects to paying for the airfare, hotel rooms, and Supreme Court admission fees incurred by Messrs. Chandler and Fleitas, totaling $2,007.53, since they did not participate in the Supreme Court proceedings. The court agrees that defendant should not be taxed with these expenses. Defendant also objects to paying $200.00 for a hornbook on federal standards of review. The court agrees with that objection as well. The court does not, however, agree with defendant's objection to a mileage charge of $72.60 incurred by Mr. Waide, when he had to hand-deliver a brief to Memphis. Deadlines were tight, and plaintiffs attorneys had fewer resources at their fingertips than defendant. This was a reasonable expense and will be allowed. Plaintiff is thus entitled to recover of defendant expenses in the sum of $7,107.01.
Plaintiff made a mathematical error of $817.00, which the court has subtracted from the original figures submitted.
Therefore, having carefully considered the matter, the court finds that plaintiff is entitled to recover of defendant attorneys' fees in the sum of $177,464.38, and expenses in the sum of $7,107.01, for a total award of fees and expenses in the sum of $184,571.39. In closing, the court believes it appropriate to echo the words of Johnson and encourage the parties "utilize their best efforts to understandingly, sympathetically, and professionally" resolve this matter without another round of appellate litigation.
An appropriate order shall issue.
ORDER GRANTING MOTION FOR ATTORNEYS' FEES
Pursuant to an opinion issued contemporaneously herewith, it is ORDERED:
That the motion of plaintiff Roger Reeves for attorneys' fees is granted;
That plaintiff Roger Reeves recover of defendant Sanderson Plumbing Products, Inc., attorneys' fees in the amount of $177,464.38, and expenses in the sum of $7,107.01, for a total award of fees and expenses in the sum of $184,571.39.