Opinion
Civil Action No. 01-2028-KHV
March 7, 2002
MEMORANDUM AND ORDER
On November 29, 2001, the Court entered default judgment on plaintiffs' claims for fringe benefit contributions under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132 and 1145. After an evidentiary hearing, the Court awarded damages in the amount of $6,333.69. On January 24, 2002, the Court entered an order which overruled plaintiffs' motion for attorney's fees without prejudice because plaintiffs had not complied with D. Kan. Rule 54.2. See Memorandum And Order (Doc. #18). This matter comes before the Court onPlaintiff's [Second] Application For Attorneys and Statement of Consultation (Doc. #19) filed February 8, 2002.
In their first application for attorney's fees, plaintiffs did not file a statement of consultation or a memorandum setting forth the factual basis for each criterion which the Court is asked to consider in making an award. See Memorandum And Order (Doc. #18) at 2. In the second application, plaintiffs' counsel certifies that he has attempted to contact defendants and/or their representatives pursuant to D. Kan. Rule 54.2. See Amended Affidavit of Charles R. Schwartz In Support Of Application For Costs And Attorney Fees ("Schwartz Affidavit") (Doc. #21) filed February 8, 2002 at ¶ 7. In addition, counsel provides billing entries and information regarding the skill and experience of the attorney and paralegal who worked on the case. See id. ¶¶ 1-4;Affidavit Of Kathleen Zans In Support Of Application For Costs And Attorney Fees ("Zans Affidavit") (Doc. #20) filed February 8, 2002 at ¶ 2.
Plaintiffs seek $7,248.75 in reasonable attorney's fees under Section 502(g)(2) of ERISA. To determine reasonable attorney's 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).
Section 502(g)(2) provides that "[i]n any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which judgment in favor of the plan is awarded, the court shall award the plan . . . (D) reasonable attorney's fees and costs of the action, to be paid by the defendant. . . ." 29 U.S.C. § 1132 (g)(2).
A. Reasonable Hours
The first step in calculating the lodestar is to determine the number of hours counsel reasonably spent on the litigation. See id. at 1249. The burden is on plaintiff to show that the hours claimed are reasonable. See Deters v. Equifax Credit Info. Sevs., 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) (quotingMalloy 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 plaintiffs, Charles R. Schwartz, claims that he has spent 40.8 hours on the case and that he has billed plaintiffs for 15.05 hours of paralegal time. See Schwartz Affidavit ¶ 5. The Court has reviewed the summary of time presented by counsel and finds that the claimed number of hours is reasonable.
The billing records submitted by counsel do not identify the timekeeper for each time entry. Mr. Schwartz states in his affidavit that "[a]ll bills and billing statements referring to work billed in this matter are generated from contemporaneous time sheets maintained by myself." Schwartz Affidavit ¶ 4. The Court is puzzled by this statement, because some of the billing entries are for paralegal time, and presumably were not generated from time sheets maintained by Mr. Schwartz. The Court therefore interprets the statement to mean that all entries for attorney time represent services performed by Mr. Schwartz. Indeed, the few attorney time entries which identify a timekeeper reflect the initials "CRS." See time entries for 10/01/01, 10/02/01, 10/03/01, 10/04/01 and 10/11/01 attached to Schwartz Affidavit.
With respect to paralegal time, plaintiffs have not clearly identified the paralegal(s) who worked on the case. Kathleen Zans states that she regularly assists attorneys with matters involving the Boilermaker-Blacksmith National Pension Fund, and that she has reviewed and calculated the billing statements of attorney and paralegal time in the case. See Zans Affidavit ¶¶ 2-4. Ms. Zans does not state, however, that she performed the paralegal work on this case. See id. Only one time entry for paralegal time indicates the timekeeper's initials. The initials on that entry are "KEZ," which appear to be the initials of Ms. Zans. See time entry for 10/18/01 attached to Schwartz Affidavit Based on this entry, combined with Ms. Zans affidavit, the Court assumes that Ms. Zans performed the paralegal work on this case.
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), overruled on other grounds by Pennsylvania v. Del. Valley Citizens' Council For Clean Air, 483 U.S. 711 (1987). 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).
Plaintiffs seek hourly rates of$ 150.00 for Mr. Schwartz and $75.00 for paralegal time. 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 the requested hourly rates are reasonable.See Lintz v. Am. Gen. Fin., Inc., 87 F. Supp.2d 1161, 1171 (D. Kan. 2000) (citing Baty v. Willamette Indus., Inc., No. 96-2181-GTV, 1999 WL 713959 at *2 (D. Kan. Aug. 16, 1999) ($155 per hour for counsel); 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; $60.00 per hour for paralegal); 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; $58.00 per hour for paralegal); 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;" $65 per hour for paralegal)); see also Aquilino v. Univ. of Kan., 109 F. Supp.2d 1319, 1325 (D. Kan. 2000) ($155 for lead counsel; $65 per hour for paralegal); 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, $70 per hour for paralegal); Starlight Int'l. Inc. v. Herlihy, 190 F.R.D. 587, 592 (D. Kan. 1999) ($155 per hour for lead counsel).
C. Lodestar Calculation
The lodestar amount is $6,120.00 for attorney time ($150.00 x 40.8 = $6,120.00) and $1,128.75 for paralegal time ($75.00 x 15.05 = $1,128.75). The Court finds that no adjustment of the lodestar figure is warranted. See Hensley v. Eckerhart, 461 U.S. 424, 434 n. 9 (1983). The Court therefore awards reasonable attorneys fees in the amount of $7,248.75 ($6,120.00 + $1,128.75 = $7,248.75).
IT IS THEREFORE ORDERED that Plaintiffs [Second] Application For Attorneys and Statement of Consultation (Doc. #19) filed February 8, 2002 be and hereby is SUSTAINED. The Court approves reasonable attorneys fees in the amount of $7,248.75.