Summary
In Bates v. Board of Education of the Capital School District, C.A. No. 97-394, 2000 WL 1292677, at *2 (D. Del. Aug. 29, 2000), the court articulated four factors courts should consider in determining whether a fee application is reasonable: (1) whether the documentation submitted adequately supports the hours claimed by the attorneys; (2) whether the hours claimed were reasonably expended; (3) whether the attorneys' hourly rates are reasonable; (5) whether reductions are appropriate; and (5) whether the applicant's request for other costs is reasonable.
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C.A. No. 97-394-SLR
August 29, 2000
Counsel for plaintiff, Michael R. Ippoliti, Esquire, Wilmington, Delaware. of counsel: Alan B. Epstein, Esquire of Spector, Gadon Rosen, P.C., Philadelphia, Pennsylvania.
Counsel for Defendant, Robert K. Pearce, Esquire, and James F. Kipp, Esquire of Trzuskowski, Kipp, Kelleher Pearce, P.A., Wilmington, Delaware.
MEMORANDUM OPINION
I. INTRODUCTION
At issue is the amount of attorneys' fees and costs to which plaintiff Debra Bates is entitled as a prevailing party in her employment discrimination suit against defendant the Board of Education of the Capital School District. Plaintiff brought suit against defendant alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111-12117 (1994), and of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e)-2 et seq. (1994). The court held a jury trial on her discrimination claims that ran from February 16, 1999 to February 25, 1999. After plaintiff had rested her case, defendant moved for judgment as a matter of law. (D.I. 187) On March 1, 1999, the jury returned a verdict, rejecting plaintiff's gender and disability discrimination claims, but finding defendant guilty of retaliation. The jury awarded plaintiff twenty years of front pay and $750,000 for mental anguish and embarrassment.
The court held an earlier trial beginning on October 5, 1998, but it ended in a mistrial after eight days of testimony when one of defendant's witnesses made a highly prejudicial statement to the jury.
On March 12, 1999, plaintiff filed a motion to amend the judgment. (D.I. 197) Three days later, defendant filed a renewed motion for judgment as a matter of law ("JMOL") pursuant to Fed.R.Civ.P. 50(b) and an alternative motion for a new trial/amendment of the judgment. (D.I. 198, 201) In an opinion and order, the court denied defendant's motions for JMOL and a new trial. The court also reduced the jury's mental anguish and embarrassment award to the statutory cap of $300,000 dollars, see 42 U.S.C. § 1981a (b)(3)(D), and reduced the front pay award by three years.
Currently before the court is plaintiff's motion for attorneys' fees and reimbursement of costs for litigation. (D.I. 204) Plaintiff seeks an award of $306,508.25 in attorneys' fees and $33,885.93 in costs. In support of her application for attorneys' fees, plaintiff has submitted an itemized billing record from her lead attorney, Alan B. Epstein, and his colleagues. The record also includes bills from plaintiff's local counsel, Michael Ippoliti. The record details the number of hours expended on her case with descriptions of the legal work and the amount of time spent on the work. Defendant argues that the requested reimbursement is excessive and has filed a brief in opposition. (D.I. 229) Plaintiff has not filed a reply to this brief, and the time for replying has passed.
II. LEGAL STANDARD
Because plaintiff prevailed on her Title VII and ADA retaliation claims, she is a prevailing party entitled to reasonable attorneys fees. A reasonable fee is one that is adequate to attract competent counsel, but one which does not produce a windfall to the attorney. See Blum v. Stenson, 465 U.S. 886, 897 (1984). In calculating a statutory award of attorneys' fees, "[t]he most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The result of this calculation is called the lodestar.See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)
A prevailing party is one who succeeds "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quotation marks citation omitted).
A court determines a reasonable hourly rate by reference to the prevailing market rates in the community. See Hensley, 461 U.S. at 433. The winning party bears the burden of establishing, by way of satisfactory evidence and the attorney's own affidavits, that the hourly rates meet this community rate. See Washington, 89 F.3d at 1035. With respect to the number of hours expended, the prevailing party must establish that those hours were "reasonably expended." See Hensley, 461 U.S. at 434. The court may exclude from the lodestar calculation unnecessary hours or hours that lack proper documentation. Id. The court also may exclude from the lodestar calculation hours spent by plaintiff's counsel on claims "on which the party did not succeed and that were distinct in all respects from claims on which the party did succeed."Rode, 892 F.2d at 1183 (internal quotations citations omitted)
After multiplying a reasonable hourly rate by the number of hours expended, the resulting lodestar is presumed reasonable. See id. Nonetheless, the court can adjust the lodestar downward if it is not reasonable in light of the results obtained. See id.; see also Hensley, 461 U.S. at 434-37. This downward adjustment "accounts for time spent litigating wholly or partially unsuccessful claims that are related to the litigation of successful claims." See Rode, 892 F.2d at 1183. With these standards in mind, the court turns to an analysis of plaintiff's requested attorneys fees and costs.
III. ANALYSIS
The court's attorneys' fee analysis shall proceed as follows. First, it shall assess whether the documentation submitted adequately supports the hours claimed by the attorneys. If it does, the court shall determine whether the hours claimed were reasonably expended. Next, the court shall consider whether the attorneys' hourly rates are reasonable. After calculating the lodestar, the court shall consider suggested reductions to it. Finally, the court shall determine whether plaintiff's request for other costs is reasonable.
A. Is There Adequate Documentation?
Defendant does not attack the adequacy of the documentation submitted in support of plaintiff's attorneys' fees. Plaintiff's lead attorney submitted eighteen pages of itemized records indicating the date the legal work was performed, the attorney performing it, the nature of the work, the number of hours spent, and hourly rate charged for the work. Plaintiff's local counsel submitted similarly specific documentation. Accordingly, the court finds that plaintiff has submitted adequate documentation in support of her attorneys' fees.
B. Were the Hours Reasonably Expended?
Plaintiff's legal team consisted of four members: Mr. Epstein, his associate Mr. Burr, their paralegal Lynn Madison, and local counsel Mr. Ippoliti. Apparently, Mr. Epstein seeks reimbursement for Mr. Ippoliti's fees. Mr. Ippoliti's fees are subject to the lodestar calculation, and the court shall examine them accordingly.
The court shall exclude the hours claimed by a "TR" — an otherwise unidentified member of Mr. Epstein's firm who never filed an appearance in this case. TR claimed 6.6 hours at a rate of $190.00 per hour and costs of $285.65.
In calculating the lodestar, the court shall consider the number of hours worked by each attorney and the reasonableness of the rates charged by each. Mr. Epstein's bill lists the total number of hours spent on the litigation as 1,313.85. (D.I. 204, Ex. 4, Mar. 11, 1999, Epstein Time Sheet, at 18) The time sheet, however, only offers the combined number of hours spent on the litigation. It does not indicate the total number of hours each attorney/paralegal spent on the project. This has forced the court to itemize the charges itself. When properly itemized, the number of hours spent on the litigation by each person on Mr. Epstein's litigation team are as follows:
The court "is not [Mr. Epstein's] personal accountant and does not look favorably upon being in that role." Central Del. Branch of NAACP v. Dover, 123 F.R.D. 85, 93 n. 13 (D. Del. 1988).
Mr. Epstein: 492.6 Mr. Burr: 796.75 Ms. Madison: 17.9
Mr. Ippoliti charged Mr. Epstein's firm a total of 149.6 hours for his work as local counsel.
Mr. Ippoliti changed firms during the course of litigation. His billing records indicate that 75.6 hours of work from March 21, 1996 to May 12, 1998 were billed at $85 per hour. After starting his own firm, Mr. Ippoliti charged Mr. Epstein $175 per hour for work between May 16, 1998 and February 26, 1999. (D.I. 204, Ex. 4, Ippoliti Time Sheets).
Defendant argues that the court should not award fees based on hours expended (1) on plaintiff's first motion for attorneys' fees, (2) on preparation for, and attendance of, the first trial, and (3) in furtherance of claims on which plaintiff did not prevail. The court shall address each of these arguments in turn.
Defendant also challenges chargeable work by Ms. Madison as "secretarial in nature" and, as such, not includable in the lodestar. The court has reviewed the work listed by Ms. Madison and does not agree with defendant in this regard.
1. Hours related to plaintiff's first motion for fees
Following the mistrial, plaintiff submitted a motion seeking reimbursement for attorneys' fees and costs under 28 U.S.C. § 1927 and Local Rule 1.3(a). (D.I. 127) In response, defendant filed a Rule 11 motion seeking sanctions for the premature filing of plaintiff's attorneys' fees motion and a motion to strike plaintiff's attorneys' fees motion. Ultimately, the court denied plaintiff's and defendant's motions. (D.I. 216) Defendant seeks to exclude from the lodestar the hours expended by plaintiff's attorneys on all three motions.
The court agrees that plaintiff should bear her own costs with respect to the hours expended on the initial motion for attorneys' fees. Plaintiff, however, will not be held responsible for the hours expended on defending the Rule 11 motion for sanctions or the motion to strike filed by defendant. Accordingly, the court shall deduct those hours related to plaintiff's initial motion for attorneys' fees. Specifically, the court shall deduct 7.2 hours from Mr. Epstein's charges, 84 hours from Mr. Burr's, and 3.5 hours from Mr. Ippoliti's. These deductions are from hours expended on October 15, 1998 through November 24, 1998. The court has given partial credit for hours on October 21, November 5, 8, 13, and 16 for matters not related to the initial motion for attorneys' fees.
In calculating the hours to exclude, the court has reviewed both the itemized bill submitted by plaintiff and the summary of those hours submitted by defendant. (D.I. 204, Ex. 4; D.I. 229, Ex. 3).
These hours were billed at the following rates: Mr. Epstein, $300 per hour; Mr. Burr, $175 per hour; and Mr. Ippoliti, $175 per hour. The court shall address the reasonableness of these rates later in the opinion.
2. Hours related to the first trial
Defendant argues that the court should exclude from the lodestar those hours related to the first trial. Defendant contends that a plaintiff should not recover fees and costs associated with a mistrial "caused by her own counsel." (D.I. 229 at 14) Putting aside the fact that it was defendant's witness who misspoke and prompted the mistrial, there is no legal basis for defendant's argument. In fact, this court in the past has awarded attorneys' fees for a trial that ended in a hung jury and had to be retried. See Ballen v. Martin Chevrolet-Buick of Del., No. Civ. A. 94-484-MMS, 1998 WL 1013874 (D. Del. Sept. 17, 1998). The Fourth Circuit also has awarded attorneys' fees under 42 U.S.C. § 1988 for a mistrial. See Buffington v. Baltimore County, 913 F.2d 113, 128 n. 12 (4th Cir. 1990). The Fourth Circuit reasoned that, "[s]ection 1988 rewards a plaintiff who ultimately prevails — who wins the war — without deducting for lost battles along the way." See Id. That rationale applies equally to requests for attorneys' fees brought under Title VII and the ADA. The court, therefore, shall not deduct any hours related to the first trial.
3. Reduction of hours for lack of success
Finally, defendant presents a confused argument for excluding certain hours spent on unsuccessful claims. Under a heading indicating a discussion of reductions to the lodestar, defendant first contends that the court should exclude all hours related to plaintiff's unsuccessful state and federal claims. (D.I. 229 at 17) The task of excluding hours spent on unsuccessful and unrelated claims occurs before calculating the lodestar and is not a reduction to the lodestar. See Rode, 892 F.2d at 1183. In the same discussion, defendant urges the court to "reduce the . . . fees remaining in the lodestar, [after making the above exclusions], by 61%." (D.I. 229 at 18) The court shall construe defendant's argument as seeking (1) exclusion of certain hours from the lodestar calculation and (2) reducing the lodestar to account for partial success. The court shall address the former argument first. After calculating the lodestar, the court shall return to defendant's arguments in favor of reducing it for partial success.
The United States Supreme Court has explained that a district court should exclude hours spent on claims "on which the party did not succeed and that were distinct in all respects from claims on which the party did succeed." Rode, 892 F.2d at 1183 (internal quotations and citations omitted). Here, plaintiff succeeded only on her retaliation claims while not prevailing on her state law claims or on her affirmative disability and gender discrimination claims.
Plaintiff's state law claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and intentional infliction of emotional distress are distinct from her successful Title VII and ADA retaliation claims. These state law claims were founded on facts and legal theories unrelated to her federal claims. See Hensley, 461 U.S. at 435. In fact, the court granted defendant summary judgment on the first two state law claims, and narrowed the third, because the claims lacked even a basis in Delaware law. Because these unsuccessful state law claims were distinct from plaintiff's successful federal claims, the court shall exclude hours expended on the state law claims from the lodestar calculation. See Johnson v. Orr, 897 F.2d 128, 132 (3d Cir. 1990) (Becker, J., concurring) (explaining that, where unsuccessful claims are sufficiently distinct from successful claims, a court should identify and exclude hours spent on unsuccessful claims from the lodestar calculation)
Defendant does not suggest particular hours worthy of exclusion, and the time sheets generally do not identify the precise legal theories on which the attorneys worked. The time sheets do reveal that Mr. Burr spent around 20 hours researching plaintiff's state law claims and drafting a motion urging the court to reconsider its rejection of plaintiff's state law claims. (D.I. 204, Ex. 4, at 12) The court shall exclude these hours from the lodestar calculation.
Of course, plaintiff's counsel spent additional time on these state law claims during discovery, motion practice, and at trial. Other than those indicated above, the billing entries do not indicate how much time plaintiff's counsel devoted to her state law claims. Thus, there is no principled way to carve out additional hours from the lodestar calculation. Defendant offers no suggestions in this regard.
As for plaintiff's unsuccessful federal claims, defendant's brief does not discuss how they are distinct from her successful retaliation claims. With respect to her Title VII gender discrimination claim, plaintiff alleged that defendant did not renew her contract because of her gender. She also claimed that defendant treated her less favorably than other similarly situated males by refusing to hire her for certain positions and that defendant retaliated against her for filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff alleged that defendant violated the ADA by refusing to accommodate her disabilities, by not renewing her contract because of her disabilities, and by retaliating against her for filing her EEOC charge. In the end, the jury found that defendant did not discriminate against plaintiff on the basis of her disability or gender. (D.I. 188, Verdict Form, ¶¶ 1-3) The jury determined, however, that defendant retaliated against plaintiff in violation of Title VII and the ADA. (D.I. 188, Verdict Form, ¶ 4)
The court concludes that plaintiff's successful retaliation claims and her other unsuccessful federal claims involved a common core of facts and shared related legal theories. See Hensley, 461 U.S. at 435. As such, the court will not attempt to identify specific hours spent on unsuccessful claims in an effort to exclude them from the lodestar calculation. See Johnson, 897 F.2d at 132 (Becker, J., concurring). Instead, the court will first calculate the lodestar and then adjust it to account for the partial success. See Rode, 892 F.2d at 1183; see also Hensley, 461 U.S. at 435 (instructing that, "the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation").
In sum, the court shall deduct 7.2 hours from Mr. Epstein's billable hours, 104 hours from Mr. Burr's, and 3.5 from Mr. Ippoliti's. For purposes of calculating the lodestar, the number of hours reasonably expended by plaintiff's legal team is as follows:
Mr. Epstein: 485.4
Mr. Burr: 692.75
Ms. Madison: 17.9
Mr. Ippoliti: 146.1
C. What Is A Reasonable Hourly Rate?
Once the court ascertains the number of hours reasonably expended on the litigation, the court must determine whether the requested hourly rates are reasonable. See Rode, 892 F.2d at 1183. Reasonable hourly rates are calculated with reference to the "prevailing market rates in the relevant community." Id. (citation omitted). "Prevailing in the relevant community" means rates that are charged "in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Missouri v. Jenkins, 491 U.S. 274, 286 (1989) (internal quotations citation omitted). Defendant only challenges the fact that the materials supporting the prevailing rates relate to Philadelphia, not Wilmington. (D.I. 229 at 10) This objection is without merit. Plaintiff sought representation in the Philadelphia legal community, and the rates charged her should be assessed with reference to that community.
Even though defendant does not otherwise attack the hourly rates charged by plaintiff's counsel, the court must review the materials submitted by plaintiff in support of the rates charged by her attorneys.See Washington, 89 F.3d at 1035 (noting that plaintiff has the burden of establishing the reasonableness of the attorney's hourly rates). The following rates were charged by members of plaintiff's legal team:
Mr. Epstein: $275-$300 per hour
Mr. Burr: $125-$175 per hour
Ms. Madison: $65-$75 per hour
Mr. Ippoliti: $85-$175 per hour
After April 27, 1997, Mr. Epstein's fees increased from $275 per hour to $300 per hour. Mr. Burr's hourly rate increased to $175 per hour after January 5, 1998. Ms. Madison's increased to $75 after February 23, 1998, and Mr. Ippoliti's increased to $175 after May 16, 1998.
In support of Mr. Epstein's fees, plaintiff submitted Mr. Epstein's own affidavit, affidavits of other Philadelphia employment discrimination attorneys, and a billing rate survey of Philadelphia attorneys. (D.I. 204 Exs. 2-3) She also submitted Mr. Epstein's resume and other materials supporting his stature as a respected and experienced employment lawyer. (D.I. 204 Exs. 2A-H) The survey indicates that Philadelphia lawyers, like Mr. Epstein, who have 20 or more years of experience charge an average of $265 per hour.
In support of Mr. Burr's hourly rate, plaintiff submitted Mr. Burr's resume and the billing rate survey. (D.I. 204 Exs. 2F, 3) The survey reveals that lawyers in Philadelphia with seven or more years of experience, like Mr. Burr, charge on average $169-$185 per hour. The survey also indicates that paralegals generally bill at an average of $69 per hour. (D.I. 204 Ex. 3)
The court is satisfied that the rates charged by Mr. Epstein, Mr. Burr, and Ms. Madison are reasonable rates for attorneys and paraprofessionals of like experience in the Philadelphia legal community. Accordingly, the court shall apply their rates to the relevant hours in calculating the lodestar.
As for Mr. Ippoliti, plaintiff did not submit any affidavits in support of the reasonable hourly rate for similarly experienced attorneys in Wilmington. Mr. Epstein noted in his affidavit, however, that Mr. Ippoliti's rates were reasonable in light of Mr. Ippoliti's experience. (D.I. 204 Ex. 1, ¶ 20) Accordingly, the court shall apply Mr. Ippoliti's rates in calculating the lodestar.
D. Calculating the Lodestar
The lodestar is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. See Hensley, 461 U.S. at 433; Rode, 892 F.2d at 1183. This task is complicated by the fact that several attorneys, each charging variable rates over time, were involved in this litigation. The court shall multiply the number of hours reasonably expended by each attorney by each attorney's appropriate hourly rate. Because hourly rates increased during the course of the litigation, the court must do this calculation twice for each member of the legal team. The sum of these separate calculations is the lodestar:
ATTORNEY FEE IN DOLLARS
MR. EPSTEIN 10 hours at $275 per hour 2,750.00 475.4 hours at $300 per hour 142,620.00
MR. BURR 39.05 hours at $125 per hour 4,881.25 653.7 hours at $175 per hour 114,397.50
MS. MADISON 4.5 hours at $65 per hour 292.50 13.4 hours at $75 per hour 1,005.00
MR. IPPOLITI 75.6 hours at $85 per hour 6,426.00 70.5 hours at $175 per hour 12,337.50
LODESTAR $284,709.75
E. Adjustment of the Lodestar
Defendants argue that the lodestar should be reduced by 61% because plaintiff succeeded on only a small portion of her claims. (D.I. 229 at 15-18) Courts may reduce the lodestar if it is not reasonable in light of the results obtained. See Rode, 892 F.2d at 1183. The United States Supreme Court has explained that, "[a] reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole." See Hensley, 461 U.S. at 440.
Out of the many claims brought by plaintiff, she succeeded on only her retaliation claims. This is a limited success "in comparison to the scope of the litigation as a whole." See id. The record amply demonstrates that plaintiff's attorneys devoted a large portion of motion practice, pretrial briefing, and trial time to plaintiff's unsuccessful affirmative gender and disability discrimination claims. In contrast, comparatively little time was spent litigating her retaliation claims. These are precisely the circumstances justifying reduction of the lodestar. As the Supreme Court observed in Hensley, civil rights suits often involve numerous challenges to institutional practices, and, by virtue of the sheer range of the complaint, a plaintiff may succeed in identifying some unlawfulness. See id. at 436. "That the plaintiff is a `prevailing party' therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Id. Here, plaintiff challenged a variety of defendant's allegedly unlawful employment practices; yet, the jury found defendant liable only for unlawfully retaliating against plaintiff. For this reason, a reduction in the lodestar is appropriate to "account for time spent litigating wholly . . . unsuccessful claims that are related to the litigation of successful claims." Rode, 892 F.2d at 1183.
The court declines, however, to reduce the lodestar by 61% as defendant suggests. Instead, the court shall reduce it by 25% to account for the time spent litigating plaintiff's gender and disability discrimination claims. After a 25% reduction ($71,177.44) to the lodestar, the court shall award attorneys' fees in the amount of $213,532.31.
F. Costs
Plaintiff has submitted for reimbursement costs of $33,885,93, which include the costs borne by Mr. Epstein's firm and by Mr. Ippoliti. Defendant argues that the court should disallow research costs related to plaintiff's first attorneys' fees motion, costs and fees arising out of the mistrial, travel expenses for plaintiff's counsel, and an expert witness fee.
The court shall disallow $2,639.09 in computerized research costs related to plaintiff's first motion for attorneys' fees. (D.I. 229 at Ex. 4) The court declines to disallow costs related to the first mistrial. With respect to travel costs, the court notes that Mr. Epstein and his associate traveled to Wilmington from Philadelphia — a distance of about 30 miles. Although plaintiffs who retain out-of-state counsel generally are unable to shift travel expenses to the opposing party, see Coalition to Save Our Children v. State Bd. of Educ. of the State of Del., 901 F. Supp. 824, 834 (D. Del. 1995), courts in this district have not applied this rule when out-of-state counsel travel from locales less than two hours from Wilmington. See id. (compensating New York counsel for travel time because "there are parts of Delaware that are equally as distant [from Wilmington] as New York in travel time"). Accordingly, the court shall allow plaintiff's travel expenses.
Finally, defendant contends that the court should disallow the expert witness fee paid to Dr. Maria Watson, who testified at trial. (D.I. 204, Ex. 4, at 22) Defendant argues that Dr. Watson testified as a fact witness, not as an expert witness, and that she should be paid at the same rate as other fact witnesses. Dr. Watson is a professional and, regardless of the status of her testimony, she charges $870 dollars to testify at trial. This is not an unreasonable fee, and the court shall allow it.
Subtracting the above deductions, the court shall award costs of $30,961.19.
This figure includes a deduction of $285.65 for costs associated with the unidentified "TR." See note 3, supra.
IV. CONCLUSION
For the aforementioned reasons, the court shall award $213,532.31 in attorneys' fees and $30,961.19 in costs to plaintiff as a prevailing party in her suit against defendant. An appropriate order shall issue.