Opinion
CIVIL ACTION No. 00-2067-KHV
August 24, 2001
MEMORANDUM AND ORDER
On July 3, 2001, the Court entered an order which overruled plaintiff's motion for attorney' fees without prejudice because (1) plaintiff did not serve copies of her filings on defendant pursuant to Rule 5, Fed.R.Civ.P., and (2) plaintiff did not consult or attempt in good faith to consult with defendant pursuant to D. Kan. Rule 54.2. This matter comes before the Court on plaintiff's Amended Motion For Attorney Fees (Doc. #39) filed July 20, 2001. Plaintiff states that she has served the motion on defendant and/or its representatives. In addition, plaintiff's counsel certifies that he has attempted to contact defendant and/or its representatives pursuant to D. Kan. Rule 54.2. See Amended Certificate Of Consultation (Doc. #41) filed August 20, 2001. It appears that plaintiff has now complied with Rules 5 and 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2. Defendant has not responded to plaintiff's motion for fees, or plaintiff's effort to consult with regard to its content. The Court will therefore consider the merits of her motion.
On May 10, 2001, the Court entered an order granting default judgment to plaintiff on her claims for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended. See Memorandum And Order (Doc. #33). After an evidentiary hearing, the Court awarded damages in the amounts of $75,000 in compensatory damages, $40,000 in back pay and $4,250 in front pay. See id. at 5. With respect to plaintiff's request for attorneys fees, the Court directed her to follow the procedures set forth in Rule 54(d)(2), Fed.R.Civ.P. and D. Kan. Rule 54.2. See id. at 3 n. 5.
I. Attorneys Fees
In determining reasonable attorneys fees, the Court arrives at a lodestar figure by multiplying the hours counsel reasonably spent on the litigation by a reasonable hourly rate and then determines whether the lodestar figure is subject to upward or downward adjustment. See Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995). Plaintiff bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. See Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998).
A. Reasonable Hours
The first step in calculating the lodestar is to determine the number of hours counsel reasonably expended on the litigation. See id. at 1249. The burden is on plaintiff to show that the hours claimed are reasonable. See Deters v. Eguifax Credit Info. Servs., Inc., No. 96-2212-JWL, 1998 WL 12119 at *3 (D. Kan. Jan. 6, 1998) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)). Attorneys normally do not bill all hours expended in litigation to a client, and "an applicant should exercise `billing judgment' with respect to a claim of the number of hours worked." Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998) (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996)). To show billing judgment, counsel for plaintiff should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary and the Court has a corresponding obligation to exclude hours not "reasonably expended" from the calculation. Id. Counsel for plaintiff claims that he has spent 69.5 hours on the case. The Court has reviewed the summary of time presented by counsel and finds that the claimed number of hours is reasonable.
B. Reasonable Hourly Rates
In setting the hourly rate, "the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). A reasonable hourly rate comports with rates "prevailing in the community for similar services for lawyers of reasonably competent skill, experience, and reputation." Blum, 465 U.S. at 896 n. 11. "A district judge may turn to her own knowledge of prevailing market rates as well as other indicia of a reasonable market rate." Metz v. Merrill Lynch, Pierce, Fenner Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (citation omitted). To determine a reasonable rate, the Court focuses on the rates of "lawyers of comparable skill and experience."Ellis, 163 F.3d at 1204 (citations omitted).
Plaintiff seeks an hourly rate of $225.00 per hour. This Court has found that the prevailing market rate for lead counsel in employment discrimination or analogous litigation ranges from $120 per hour to $190 per hour, depending on counsel's experience in the field. See Lintz 87 F. Supp. at 1171 (citing Baty v. Willamette Indus., Inc., No. 96-2181-GTV, 1999 WL 713959 at *2 (D. Kan. Aug. 16, 1999) ($155 per hour); Glover v. Heart of Am. Mgmt. Co., No. 98-2125-KHV, 1999 WL 450895 at *8-9 (D. Kan. May 5, 1999) ($120 per hour reasonable for counsel with three years experience); Cadena v. Pacesetter Corp., No. 97-2659-KHV, 1999 WL 450891 at *5-6 (D. Kan. Apr. 27, 1999) ($155 per hour reasonable for counsel with eight years experience in employment discrimination litigation);Hampton v. Dillard Dep't Stores, Inc., No. 97-2182-KHV, 1998 WL 724045 at *2 (D. Kan. Sept. 24, 1998) ($190 per hour reasonable for counsel with 28 years experience in "cutting edge civil rights litigation")); see also Aquilino, 109 F. Supp.2d 1319, 1325 (D. Kan. 2000) ($155 for lead counsel); Outdoor Sys., Inc. v. City of Merriam, Kan., 2000 WL 575023 at *4-5 (D. Kan. Feb. 25, 2000) ($165 and $155 per hour for lead counsel, $120 per hour for co-counsel/associates); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 592 (D. Kan. 1999) ($155 per hour for lead counsel and $120 per hour for other attorneys) (sanctions in securities fraud case). After considering the level of experience and skill of counsel and the undersigned's own knowledge of the prevailing market rates, the Court finds that an hourly rate of $135.00 is reasonable.
C. Lodestar Calculation
The lodestar amount is $9,382.50 ($135.00 x 69.5 = $9,382.50). The Court further finds that no adjustment of the lodestar figure is warranted. See Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9 (1983) (while district court may consider other factors to adjust fee upward or downward, many of factors "usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate"). The Court therefore awards reasonable attorneys fees in the amount of $9,382.50.
II. Expenses
In addition to attorneys fees, the prevailing party is entitled to recover reasonable expenses that are usually itemized and billed separately, as long as the expenses are reasonable. See Sussman v. Patterson, 108 F.3d 1206, 1213 (10th Cir. 1997). Plaintiff asks the Court to award expenses for the following amounts:
Long distance $ 7.97 Copies $ 61.75 Postage $ 16.97 Witness fee and mileage $ 98.50 Investigating services $142.20 $327.39
An entry in May for $2.00 does not specify the type of expense. In comparing the entry with the figures listed for other months, it appears that the entry is for copies.
With the exception of postage, the Court knows from personal experience that these items are usually itemized and billed separately in this area. Other than postage, the amounts claimed appear reasonable. Accordingly, the Court will allow reasonable expenses of $310.42 ($327.39 — $16.97 = $310.42).
IT IS THEREFORE ORDERED that plaintiff's Amended Motion For Attorney Fees (Doc. #39) filed July 20, 2001 be and hereby is SUSTAINED in part and OVERRULED in part. The Court approves reasonable attorneys fees of $9,382.50 and reasonable expenses of $310.42.