Opinion
R.I. C.A. No. 92-197, N.H. C.A. No. 99-485-B
March 31, 2003
REPORT AND RECOMMENDATION
Before the court is Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses (the "Motion"). Plaintiffs were the prevailing parties in the underlying Title IX litigation, and they were awarded attorneys' fees and expenses for prevailing in that action. See Report and Recommendation dated August 10, 2001 (Martin, M.J.), accepted but modified in part by Memorandum and Order dated December 5, 2001 (Barbadoro, C.J.). The present Motion seeks attorneys' fees and expenses incurred in presenting and prosecuting their fee petition, as well as additional fees and costs incurred in connection with post-judgment enforcement and compliance efforts. Brown University ("Brown") has filed an opposition to the Motion.
This matter has been referred to me for preliminary review, findings, and recommended disposition. See 28 U.S.C. § 636 (b)(1)(B); D.R.I. Local R. 32(c). The court determined that no hearing was necessary. After reviewing the memoranda and exhibits submitted and also performing independent research, I recommend that the Motion be granted and that Plaintiffs be awarded $265,654.00 in attorneys' fees and $11,208.83 in costs.
Background and Applicable Law
The background of the underlying litigation is set forth in this Magistrate Judge's Report and Recommendation of August 10, 2001 ("R R of 8/10/01"), and need not be repeated here. See R R of 8/10/01 at 6-11. Similarly, the applicable law regarding the award and calculation of attorneys' fees is fully set forth in that Report and Recommendation, see id. at 11-17, and it is unnecessary to restate that law. The law regarding expenses and costs was also discussed in the earlier Report and Recommendation, see id. at 103-09, and the court here applies that law in accordance with the interpretation given it by Chief Judge Paul J. Barbadoro in Cohen v. Brown University, No. 99-485-B, 2001 WL 1609383, at *2 (D.N.H. Dec. 5, 2001) ("[S]o long as the expenses sought were incurred in the creation of attorney work product and are of a type traditionally made part of the fee charged to the client . . . they are recoverable. . . ."). No further explication of these subjects is necessary. Accordingly, the court proceeds directly to consideration of Plaintiffs' claim for fees and expenses and to Brown's objections thereto.
Discussion
I. Attorneys' Fees
Plaintiffs seek a total of $332,010.27 in attorneys' fees. See Motion at 1. This sum is the aggregate of bills submitted by three law firms: Roney and Labinger ($93,786.00), Trial Lawyers for Public Justice ("TLPJ") ($63,469.35), and Steptoe Johnson ($174,754.92). See id. The latter firm is new to this action and is identified as being "special fee counsel." Memorandum in Support of Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses ("Plaintiffs' Mem.") at 7. In all, compensation is sought for services performed by six lawyers, four paralegals, and one person whose status is unidentified.
Tami Cohen of Steptoe Johnson is not identified as being a paralegal, although compensation for her services is sought at the paralegal rate. See Memorandum in Support of Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses ("Plaintiffs' Mem."), Exhibit ("Ex.") 3 (Declaration of Roger E. Warm in Support of Plaintiff's [sic] Supplemental Motion for Attorneys' Fees and Expenses ("Warin Decl."), Tab A (Time Descriptions for Tami Cohen); see also Plaintiffs' Mem. at 8. The omission is noticeable because the three paralegals at Steptoe Johnson for whom compensation is sought, Susan D. Knupp ("Knupp"), Christina Zemina ("Zemina"), and Karen Tucker ("Tucker"), are specifically identified as being paralegals while Cohen is not. See Plaintiffs' Mem., Ex. 3, Tab A (Time Descriptions for Knupp, Zemina, and Tucker). In addition, the time records of Steptoe Johnson Attorney Tracy L. Hilmer ("Ms. Hilmer") reflect conferences on November 30, 1998, and December 10, 1998, with "T. Cohen" regarding "training issues. . . ."Id., Ex. 3, Tab A (Time Descriptions for Tracy L. Hilmer). Although this time is written off, the reference to "training issues," coupled with the omission of the term paralegal from Ms. Cohen's Time Descriptions, see Plaintiffs' Mem., Ex. 3, Tab A (Time Descriptions for Tami Cohen), raises a question in the court's mind regarding Ms. Cohen's qualifications. Plaintiffs have not provided a curriculum vitae (or other statement of qualifications) for Ms. Cohen or the other three Steptoe Johnson paralegals for whom compensation is sought.
Brown, in its opposition, argues that the Motion should be denied in its entirety, or, if not, substantially reduced. See Memorandum in Opposition to Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses ("Brown's Mem.") at 2. Brown contends that the Motion is untimely, that fees should not be awarded to special fee counsel, and that the requested fees and expenses are unreasonable. The court considers these specific objections.
A. Timeliness
Brown, relying principally upon a statement by the Court of Appeals for the First Circuit in Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632 (1st Cir. 1994), argues that the Motion should have been "made before the court act[ed] upon the princip[al] fee application." Brown's Mem. at 7 (quoting Tennessee Gas Pipeline Co., 32 F.3d at 635 ). Although Brown acknowledges that the fee award in Tennessee Gas Pipeline Co. was under a different statute than the one in the instant case, see Brown's Mem. at 7-8, it contends that the principle, nevertheless, is applicable here, see id. at 8. Because the Motion was not filed until after issuance of this Magistrate Judge's R R of 8/10/01 and Chief Judge Barbadoro's acceptance (with modification) of that Report and Recommendation, Brown asserts that the new fee petition should be denied in its entirety. See id.
Pinpoint citation by the court.
In addition, Brown claims that the allegedly late filing of the Motion "unfairly surprises and prejudices Brown." Id. at 9. It contends that there was no indication that a fee petition of "such extraordinary magnitude," id., would be forthcoming and that "[i]t is inconceivable that Plaintiffs would spend 1,500 hours in pursuit of their original fee petition," id. Further, Brown avers that it was prejudiced by the delay because "[h]ad Plaintiffs timely supplemented their fee petition in the years following entry of judgment in this matter . . . the court would have had additional evidence of [Plaintiffs' litigation by committee] staffing pattern," id. at 10, to which Brown had objected when the court considered the original fee petition, see id. at 9-10. Brown expresses the belief that "had Plaintiffs disclosed their continued penchant for team-staffing virtually every task . . .," id. at 10, this Magistrate Judge may have been more receptive to Brown's position and reduced Plaintiffs' hours to a greater extent, see id. Brown posits that even if this court did not "apply the clear rule of Tennessee Gas, preexisting precedent merits denial of the new fee petition outright due to unfair surprise and prejudice," id. (apparently referring to White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1167-68, 71 L.Ed.2d 325 (1982), Cruz v. Hauck, 762 F.2d 1230, 1237 (5th Cir. 1985), and Baird v. Bellotti, 724 F.2d 1032, 1033 (1st Cir. 1984)).
Plaintiffs . . . essentially litigated by committee." Memorandum in Opposition to Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses ("Brown's Mem.") at 9.
Pinpoint citation by the court. "We believe that this discretion will support a denial of fees in cases in which a postjudgment motion unfairly surprises or prejudices the affected party." White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 454, 102 S.Ct. 1162, 1167-68, 71 L.Ed.2d 325 (1982).
Pinpoint citation by the court.
Pinpoint citation by the court.
The court does not find that the Motion is untimely. The Motion was filed on February 28, 2002, which was prior to the March 25, 2002, judgment on fees. Rule 54(d)(2) provides that a motion for attorneys' fees must be filed and served no later than fourteen days after entry of judgment. See Fed.R.Civ.P. 54(d). Plaintiffs' filing comports with the requirements of this Rule.
The court is also not convinced that the statement Brown quotes fromTennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 635 (1St Cir. 1994) ("we believe that . . . where possible, [a supplemental fee] application [should] be made before the court acts on the principal fee application"), remains good law. The 1993 amendment of Rule 54(d) created a timetable for the submission of a claim for attorneys' fees, and such a timetable was lacking at the time the defendants in Tennessee Gas Pipeline Co. filed their supplemental fee application. There the application was filed on September 22, 1993, see id. at 633, and the 1993 Amendments to the Federal Rules of Civil Procedure did not become effective until December 1, 1993, see Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 642 n. 4 (E.D.N.Y. 1997). The Court of Appeals' statement "that there must be some time limit within which a party must file an application for supplemental fees . . .," Tennessee Gas Pipeline Co., 32 F.3d at 635, suggests that the court was influenced to a considerable extent by the fact that there was then no time limit.
In addition, the fact that Tennessee Gas Pipeline Co., involved an action for costs and attorneys' fees pursuant to the Uniform Relocation Assistance and Real Property Acquisitions Policies Act ("Relocation Act"), 42 U.S.C. § 4601-4655, and not Title IX, as in the instant case, detracts from its persuasiveness. Furthermore, a literal application of the Tennessee Gas Pipeline Co. holding would require parties to submit their supplemental fee applications prior to a determination that they are entitled to any fees. Yet, prevailing on the original fee application would logically seem to be a precondition to receiving a § 1988 fee for work done in the pursuit of those fees.Cf. 2 Martin A. Schwartz and John E. Kirklin, Section 1983 Litigation Statutory Attorney's Fees § 2.8 at 40 (3d ed. 1997) ("[T]he prevailing plaintiff's request for statutory attorney's fees is considered sufficiently severable from the underlying merits litigation to require that the plaintiff prevail on the fee application as a condition to receiving a § 1988 fee compensation for work done at that stage of the litigation."). Although it would be rare, this court can envision a circumstance where a prevailing party's request for attorneys' fees would be rejected in toto. Obviously, in such a circumstance that party also would not be entitled to attorneys' fees for its unsuccessful effort to recover fees in the underlying action. Requiring parties to submit supplemental fee applications with no determination that they even qualify for such additional fees strikes this court as wasteful.
Although Brown claims surprise, it is the amount of the additional attorneys' fees sought by Plaintiffs rather than the filing of the Motion which is the basis for the claimed surprise. See Brown's Mem. at 9. This is not the type of surprise which would justify denial of an application for supplemental fees. Brown's ability to challenge the reasonableness of the amount sought has not been impaired. Merely because that amount is greater, even far greater, than Brown expected does not constitute the kind of unfair surprise which the Supreme Court suggested in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982), could support a district court's denial of a postjudgment motion for attorneys' fees. In White, the respondent argued that it thought its total liability had been fixed by a consent decree and that it would not have agreed to the settlement if it had known that further liability might still be established. See id. at 448, 102 S.Ct. at 1164. Brown makes no similar (or qualitatively equivalent) claim here.
As for Brown's contention that it suffered prejudice by being deprived of additional evidence with which to support its argument that Plaintiffs engaged in redundant staffing, the court notes that the billing records submitted by Plaintiffs in support of their original petition were voluminous. The court gave careful consideration to Brown's redundancy arguments in reviewing those records. The court examined literally hundreds of individual entries regarding the performance of particular tasks and assessed whether those tasks had been overstaffed or involved redundancy. Where the court found that reductions were in order, it made them. Brown's suggestion that the reductions may have been greater if Brown had also been able to cite to additional billing records is unpersuasive. The magnitude of the records which the court examined was more than sufficient to evaluate Plaintiffs' staffing practices.
Moreover, even if the present billing records demonstrate overstaffing or redundancy with respect to prosecution of the instant Motion, this would not be a basis for finding that tasks performed in connection with the prosecution of the underlying action were also overstaffed. While Brown argues that it would demonstrate a pattern of overstaffing, see Brown's Mem. at 10, the court considers the requirements of each action separately. Consequently, the court finds that Brown has failed to demonstrate prejudice relative to the filing of the Motion.
B. Fee Counsel
Plaintiffs seek fees for Steptoe Johnson, a Washington, D.C., law firm which was not involved in the underlying action, but which has "a sub-specialty" in the area of attorneys' fees litigation. Plaintiffs' Mem., Ex. 2 (Declaration of Leslie A. Brueckner in Support of Plaintiffs' Supplemental Motion for Attorneys' Fees) ("Brueckner Decl.") ¶ 4. Brown objects to any compensation for Steptoe Johnson because: 1) they were not admitted in this matter, see Brown's Mem. at 10; 2) they were apparently hired not by Plaintiffs but by Plaintiffs' counsel, see id. at 11; and 3) there is no indication that out-of-state counsel were required to handle the fee litigation in this matter or that Plaintiffs' existing counsel, or other counsel in Rhode Island, lacked such expertise, see id. at 12.
The idea of retaining fee counsel apparently originated with Attorney Leslie A. Brueckner ("Ms. Brueckner") of TLPJ. See Plaintiffs' Mem., Ex. 2 (Brueckner Decl.) ¶ 2-4. In the course of researching and compiling support for TLPJ's hourly rates (which are considerably higher than Rhode Island rates), Ms. Brueckner contacted Attorney Roger E. Warm ("Mr. Warm") of Steptoe Johnson, seeking a copy of the fee application used in Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995), a case in which Mr. Warm had successfully represented the plaintiffs, see id. ¶ 3-4. Mr. Warm referred Ms. Brueckner to Attorney Tracy L. Hilmer, also of Steptoe Johnson. See id. ¶ 4. Ms. Hilmer told Ms. Brueckner during a November 18, 1998, meeting between the two that "Steptoe Johnson had a sub-specialty in this area and would be willing to assist with the fee application." Id. Favorably impressed with the firm's experience, Ms. Brueckner recommended to TLPJ Attorney Arthur Bryant ("Mr. Bryant") and to Rhode Island Attorney Lynette Labinger ("Ms. Labinger") "that the firm be retained to assist with the application for attorneys' fees and costs in this case."Id. Ms. Labinger "concurred that it would be prudent to engage special fee counsel," Plaintiffs' Mem., Ex. 1 (Declaration of Lynette Labinger in Support of Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses) ("Labinger Decl.") ¶ 6, "because of the potentially broad scope and complexity of the objections Brown indicated that it would raise," id. Presumably, Mr. Bryant also concurred. Thus, it appears that the impetus for retention of special fee counsel, at least initially, was TLPJ's concern about defending its hourly rates. See id., Ex. 2 (Brueckner Decl.) ¶¶ 2-4.
Mr. Bryant has not submitted an affidavit in support of the present Motion.
The Court of Appeals for the First Circuit has cautioned that the engagement of "specially retained fee counsel . . . is inherently wasteful in many respects and should not be encouraged by the district courts in the absence of good cause." Rogers v. Okin, 821 F.2d 22, 30 n. 4 (1st Cir. 1987), abrogated on other grounds, Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The Eleventh Circuit has suggested that "attorneys who feel the need to hire counsel would be well-advised to raise the issue with the court prior to taking such action. Otherwise they run the risk that the trial court may determine that the necessities of the case did not justify retaining special fee counsel." Jonas v. Stack, 758 F.2d 567, 569 n. 6 (11th Cir. 1985).
While cautioning that the use of fee counsel should not be encouraged, the First Circuit has not definitively articulated the standard which a district court should apply when confronted with a request for compensation for fee counsel. See Rogers v. Orkin, 821 F.2d at 30 n. 4 (observing that "in this unusual case the engagement of specially retained fee counsel seems appropriate"); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 958 (1st Cir. 1984) (describing hiring of lawyer with experience in litigating fee application as "appropriate"); cf. Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983) (finding reimbursement for reasonable and necessary attorneys' expenses allowable under 42 U.S.C. § 1988 to out-of-state attorneys who "had unique competence in the subject matter of this litigation . . . [and] brought to the case experience and resources not easily duplicated locally."). Some courts have used a "necessary" standard. See Case v. Unified Sch. Dist. No. 223, Johnson County, Kansas, 157 F.3d 1243, 1252 (10th Cir. 1998) (holding that "[i]f an attorney is consult[ed] on a case, the assistance provided must be actually necessary or essential to proper representation rather than merely comforting or helpful."); Alberti v. Klevenhagen, 896 F.2d 927, 937-38 (5th Cir. 1990) (concurring with district court that "the association of special fee counsel was justified by the necessities of the case."); Jonas v. Stack, 758 F.2d 567, 569 (11th Cir. 1985) (same); Knop v. Johnson, 712 F. Supp. 571, 592 (W.D. Mich. 1989) ("Where necessary, fee petitioners may hire outside counsel to represent them in fee litigation.")
Other courts have suggested that a "reasonably necessary" standard applies. Cf. Shadis v. Beal, 703 F.2d 71, 73 (3rd Cir. 1983) (noting "that attorneys prosecuting a civil rights action are entitled to compensation for the time they spend preparing a fee petition, to the extent such time is reasonably necessary to obtaining a reasonable fee award" and holding that a law firm retained by plaintiff's counsel to represent her for the balance of the fee proceedings should be compensated for the time spent preparing its own fee petition); Holmes v. Dist. of Columbia, 680 F. Supp. 40, 44-45 (D.D.C. 1988) ("[I]t is up to the court, and not the opposing party, to determine whether the legal services were reasonable and necessary.")
Bearing in mind the First Circuit's caution that the use of specialized fee counsel should not be approved in the absence of good cause," this court believes that a "reasonably necessary standard is appropriate. See Case v. Unified Sch. Dist. No. 223 Johnson County, Kansas, 157 F.3d 1243, 1252 (10th Cir. 1998); Knop v. Johnson, 712 F. Supp. 571, 592 (W.D. Mich. 1989). Plaintiffs apparently concur. See Reply Memorandum in Support of Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses ("Plaintiffs' Reply Mem.") at 7 ("The relevant inquiry is not whether a formal appearance has been entered, but whether attorneys seeking fees performed work on a case that was reasonably necessary to its successful prosecution.") (citing Case at 1252). With this standard in mind, the court now considers the justification offered by Plaintiffs for engaging special fee counsel.
Plaintiffs argue that retention of special fee counsel was "reasonable," Plaintiffs' Reply Mem. at 8, because of the multitude of challenges" Brown raised to their fee request and the contentiousness of the proceedings, id. (quoting R R of 8/10/01 at 17). Plaintiffs also assert that Brown does not argue that the retention of fee counsel was unreasonable, see id. at 7, but the court does not so read Brown's memorandum, see Brown's Mem. at 12 ("There is no indication that out of state counsel were required to handle the fee litigation in this matter, or that Plaintiffs' existing counsel, or other counsel in Rhode Island, lacked such expertise."). Moreover, the court has an independent duty to scrutinize attorneys' fees requests to insure that they are reasonable.See Gabriele v. Southworth, 712 F.2d 1505, 1507 (1St Cir. 1983) ("[C]laims are subject not only to testing by adversaries but to the independent review of a court.")
The court finds Brown's objection to be valid. Plaintiffs have failed to demonstrate that it was reasonably necessary for them to engage special fee counsel, especially out-of-state fee counsel whose usual hourly rates greatly exceed the hourly rate of the lead counsel in the underlying action. It is true that Brown raised numerous objections to Plaintiffs' request for fees and contested Plaintiffs' discovery requests. However, the court does not find that responding to these objections or prosecuting the fee action itself, while indisputably time consuming, required the services of specialized out-of-state counsel. Ms. Labinger and Mr. Bryant are both highly capable and experienced civil rights attorneys who the court believes were fully capable of defending their requests for fees. There were no evidentiary hearings at which they were required to testify and defend their fee requests, a circumstance which might make the retention of fee counsel necessary.Cf. Shadis v. Beal, 703 F.2d 71, 73 (3rd Cir. 1983) (suggesting that retention of separate fee counsel may be justified where a prevailing attorney "for some extraordinary reason . . . is unable to prosecute her own fee petition."). Ms. Labinger's belief that it was "prudent" to retain special fee counsel, Plaintiffs' Mem., Ex. 1 (Labinger Decl.) ¶ 6, does not make such retention reasonably necessary. Cf. Case v. Unified Sch. Dist. No. 233. Johnson County, Kansas, 157 F.3d 1243, 1252 (10th Cir. 1998) ("If an attorney is consulting on a case, the assistance provided must be actually necessary or essential to proper representation rather than merely comforting or helpful.")
For 2002 the hourly rates for partners at Steptoe Johnson ranged from $305 to $730. See Plaintiffs' Mem., Ex. 3 (Warin Decl.) ¶ 31. Although for this Motion Steptoe Johnson attorneys seek compensation at hourly rates of $305 and $250, see Plaintiffs' Mem. at 8, these rates are still substantially higher than the hourly rates which this court has found to be reasonable for Rhode Island attorneys, see R R of 8/1/01 at 87-95.
In the previous petition for attorneys' fees, this Magistrate Judge rejected Brown's contention that it was unnecessary for Ms. Labinger to associate herself with an attorney experienced in Title IX intercollegiate athletics litigation, see R R of 8/10/01 at 81-85, and also rejected Brown's implicit argument that any experienced civil rights attorney was capable of prosecuting a class action without the assistance of experienced class action counsel, see id. at 86-87. The court was satisfied that Plaintiffs had demonstrated that special expertise was required in those areas. In contrast, here the court is not persuaded that the defense of Plaintiffs' fee petition required out-of-state specialized fee counsel.
While Plaintiffs cite cases where the use of fee counsel was allowed, most of the cases are distinguishable from the instant matter. InGrendel's Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984), the First Circuit found it "appropriate" that two law school professors, who had served as plaintiffs' counsel, hired a lawyer to litigate their fee application where defendants vigorously contested the application. Id. However, the hourly rate of compensation for the fee counsel was $125 per hour while the hourly rates for the two professors were $175 and $125. Id. at 955-56. Thus, the argument can made that by utilizing fee counsel one of the professors actually saved the defendants money since if fee counsel were not allowed, presumably, the same work would have had to have been performed by the professor at the more costly rate. Here, in contrast, the rates sought for fee counsel are substantially higher than those of plaintiffs' primary counsel, Ms. Labinger. Cf. Thomas v. Cooper Indus., Inc., 640 F. Supp. 1374, 1380 (W.D.N.C. 1986) (fee counsel sought compensation at $125 per hour while plaintiffs' primary attorney requested compensation at $160 per hour); but see Knop v. Johnson, 712 F. Supp. 571, 592 (W.D. Mich. 1989) (approving rates for fee counsel higher than those for plaintiffs' counsel)
Ms. Labinger's primary status is reflected in 2,991.26 hours of work in the underlying action for which she was compensated at a rate of $210.00 per hour. See R R of 8/10/01 at 103. This was nearly five times the number of hours allowed for Mr. Bryant, the attorney with the second highest number of hours. Ms. Labinger's total fees were $628,164.60, which was more than three times the total fees awarded to Mr. Bryant ($188,898.70). See id.
In Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), reh'g granted on other grounds, 903 F.2d 352 (5th Cir. 1990), the Court of Appeals found that it was "not an abuse of discretion for the district court to allow the limited association of special counsel by [plaintiffs' counsel]." Id. at 938 (bold added). The amount sought for special counsel in Alberti constituted only one percent of the total attorneys' fees awarded. See id. at 929, 937. Here the amount sought by Steptoe Johnson, $174,754.92, constitutes the lion's share of the present fee petition. See Plaintiffs' Mem. at 8. In fact, it exceeds the combined total of the amounts sought by Roney Labinger, $93,786.00, and TLPJ, $63,469.35. See Motion at 1. Plaintiffs' counsel have not utilized special counsel in a limited way. Rather, they have employed an out-of-state law firm to do most of the work, and they have made no showing that this work could not have been performed by Rhode Island attorneys and paralegals at significantly less cost. Cf. Guckenberger v. Boston Univ., 8 F. Supp.2d 91, 104 (D. Mass. 1998) ("[J]udges may question the reasonableness of an out-of-town attorney's billing rate if there is reason to believe that competent counsel was readily available locally at a lower charge or rate.") (quoting Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995)) (alteration in original)
Plaintiffs suggest that the retention of Steptoe Johnson was reasonable because it "could commit both the experience and resources necessary to rebut Brown's anticipated opposition. Plaintiffs' Mem., Ex. 1 (Labinger Decl.) ¶ 6. Although Brown's objection to Plaintiffs' fee request was broad in scope, the task presented to Plaintiffs' counsel essentially was to defend their own bills. This court declines to find that the performance of such a task, by itself, requires special expertise.
Plaintiffs cite their successful persuasion of this Magistrate Judge that Brown's Appendix B was unreliable, see R R of 8/10/01 at 24, as evidence of the value of the work of Steptoe and Johnson, see Plaintiffs' Mem., Ex. 1 (Labinger Decl.) ¶ 8; id., Ex. 3 (Warin Decl.) ¶ 17 ("[Steptoe Johnson] initiated a major work effort to understand Appendix B and assess its probative value."). The court acknowledges the helpfulness of the analysis, but believes it could have been performed equally effectively by Plaintiffs' existing counsel with augmentation by Rhode Island paralegals.
Although the court does not find the fact that Steptoe Johnson did not enter an appearance in this matter to be determinative of the issue, the court agrees with Brown that "[h]ad Plaintiffs sought to have out of state counsel admitted in this matter for the purpose of prosecuting the fee petition, both the Court and Brown would have been given an opportunity to address these issues prior to being presented with a $175,000 bill." Brown Mem. at 12; Cf. Jonas v. Stack, 758 F.2d 567, 569 n. 6 (11th Cir. 1985) (cautioning that attorneys would be well advised to raise matter of retention of special counsel with court prior to taking action). In one sense, the lack of an entry of appearance by Steptoe Johnson in this action is relevant to the present question. It highlights the fact that there were no evidentiary hearings at which attorneys from Roney and Labinger and TLPJ were required to give testimony, thereby necessitating their representation by fee counsel.
Plaintiffs' partial quotation of a sentence (without so indicating) from this Magistrate Judge's Report and Recommendation inAssociated Builders Contractors of Rhode Island, Inc. v. City of Providence, C.A. No. 98-598 L, (Aug. 13, 2001), implies that this court found that "the entry of appearance by an attorney is not relevant to the determination of an award of attorneys' fees." Plaintiffs' Reply Mem. at 7 (quoting Associated Builders at 7). What the court actually stated was that "other courts have held that the entry of appearance by an attorney is not relevant to the determination of an award of attorneys' fees."Associated Builders at 7. The precise finding of Associated Builders is that where plaintiffs' counsel performs significant legal work which is essential to the prosecution of the action, compensation for that work will not be denied merely because it predates the counsel's entry of appearance. See id. at 8.
As for Brown's objection that fee counsel was apparently hired by Plaintiffs' counsel and not by Plaintiffs, the court does not find that this circumstance is a basis for rejecting the request. See Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 958 (1St Cir. 1984) (finding it appropriate that plaintiffs' counsel hired fee counsel). However, the court observes that the decision to employ specialized fee counsel appears to have originated primarily with Ms. Brueckner of TLPJ, who herself was specialized counsel, and that it was this circumstance which led to the retention of another Washington, D.C., law firm as fee counsel. See Plaintiffs' Mem., Ex. 2 (Brueckner Decl.) ¶¶ 3-4. As a consequence, it does not appear that there was any consideration given to whether the tasks performed by Steptoe Johnson could be accomplished by Rhode Island attorneys and/or paralegals (as this court has found). This was a Rhode Island case. Lead counsel for Plaintiffs is a Rhode Island attorney. The court agrees with Brown that there is insufficient justification for Brown to be suddenly confronted with a $332,010.27 bill, more than half of which is attributable to an out-of-state law firm whose rates are substantially higher than those which the court has approved for Rhode Island law firms.
There is one additional factor which influences the court's conclusion on this issue. Plaintiffs' attorneys retained out-of-state fee counsel without informing either Brown or the court. Indeed, the involvement of Steptoe Johnson in this action was unknown to the court and apparently to Brown, see Brown's Mem. at 15, until Plaintiffs' counsel filed the instant Motion. If the court were to find that the retention of out-of-state specialized counsel is justified solely because Brown vigorously challenged Plaintiffs' fee application, it would tend to encourage other plaintiffs' attorneys, whose fee petitions are also strongly contested, to engage similar fee counsel in like manner. Such a result is not desirable. It would allow plaintiffs' counsel to suggest (subtly or not so subtly) that if their fee request is challenged too vigorously, defendants could end up confronted with a claim for attorneys' fees not only from plaintiffs' counsel but also from costly out-of-state fee counsel. Defendants could be deterred from mounting strong challenges to excessive fee petitions out of fear of the unknown consequences. Thus, approving Plaintiffs' counsel's use of fee counsel here would send an undesirable message to other counsel involved in fees litigation. Cf. Rogers v. Okin, 821 F.2d 22, 31 n. 4 (1St Cir. 1987) (cautioning that use of fee counsel should not be encouraged in absence of good cause), abrogated on other grounds, Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).
C. Reasonableness of the Fees Requested
Brown objects to the fees requested on the ground that they are unreasonable. See Brown's Mem. at 12. It complains specifically that the time spent on discovery was not reasonable, see id. at 12, 19, that work related to the Motion for Protective Order should not be compensated,id. at 20, that only one set of attorneys can be compensated, see id. at 13, and that Steptoe Johnson's time in particular is unreasonable,see id. at 15.
1. Time Spent on Discovery
Brown asserts that Plaintiffs' efforts "to obtain discovery [of Brown's billing records] for comparative purposes grew into an unreasonably massive effort unjustified by the intent or the result." Id. at 13. The result, in Brown's view, was that the time spent on this discovery effort by itself constituted a second major litigation," id. (apparently referring to Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). Consequently, Brown "submits that no time should be awarded, to any counsel, for time spent on the discovery aspect of this case, the motion for protective order and the analysis of Brown's time." Id. Brown further complains that "the discovery issues were subject to a constant level of discussion among counsel, constant review, revision, correction, re-editing and re-thinking regarding virtually every document produced, so that much of the time on this issue was also noncompensable because [it was] redundant." Id. Lastly, Brown contends that "the effort to discover [its] records was not reasonable given the extremely limited value of this information," id. at 19, noting that this Magistrate Judge made only a few references to Brown's time and "even then, Brown's time was not dispositive or terribly important in the Magistrate Judge's analysis," id.
Plaintiffs defend their decision to seek discovery on the ground that such action was necessitated by Brown's "massive challenge to the reasonableness of plaintiffs' counsel's hours. . . ." Plaintiffs' Reply Mem. at 5. They note that "when a defendant chooses to fight over every issue, it cannot complain about the time necessary for plaintiffs to respond." Id. at 6 (citing Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 298 (1St Cir. 1998), and City of Riverside v. Rivera, 477 U.S. 561, 581 n. 11, 106 S.Ct. 2686, 2697 n. 11, 91 L.Ed.2d 466 (1986)). Thus, in Plaintiffs' view, it was not their discovery requests, but Brown's "massive attack on the original fee petition that pushed the matter into further litigation." Id. at 9. They aver that "[i]t would be inconsistent with the purpose of the Fees Act to dilute a fees award by refusing to compensate the attorney for the time reasonably spent in establishing and negotiating his rightful claim to the fee." Id. (quotingLund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978)).
Responding to Brown's assertion that the documents discovered were "of extremely limited value to the Court," Brown's Mem. at 12, Plaintiffs contend that "the ultimate "value' of the discovery to the Court, or even to plaintiffs, is not the correct measure," Plaintiffs' Reply Mem. at 9. Rather, Plaintiffs maintain that "[t]he issue is whether it was reasonable to undertake the effort." Id. Even if that is not the correct standard, Plaintiffs assert that "in the end the discovery proved invaluable." Id. at 10. Among the evidence cited in support of this statement is this Magistrate Judge's reference to those records in two instances in the prior Report and Recommendation. See R R. of 8/10/01 at 50 ("[T]his court finds no "dramatic contrast' between the hours Plaintiffs' attorneys spent and the hours Brown's attorneys spent on the challenged tasks [pertaining to the memorandum in opposition to stay and the first appellate brief]."); id. at 55 (describing as "part of the equation" the number of hours that Brown expended on second appellate brief)
The court does not share Plaintiffs' view that the records produced by Brown were "invaluable." As Brown correctly notes, this Magistrate Judge made only limited reference to the records and did not find them by themselves to be determinative of the issues considered. Given the large number of hours that the parties expended regarding discovery and the related protective order, the court's confidence that "granting this limited discovery will [not] result in a second major litigation," Memorandum and Order Granting in Part Plaintiff's Motion for Limited Discovery and Motion to Fix Time dated May 19, 1999 (Martin, M.J.), at 5, may have been misplaced.
Nevertheless, the court agrees with Plaintiffs that the correct measure is whether the discovery was "reasonably necessary," Plaintiffs' Reply Mem. at 11 (citing Case v. Unified School District No. 233, Johnson County, Kansas, 157 F.3d 1243, 1252 (10th Cir. 1998), and not the ultimate value of the discovery produced. The court views its ruling of May 19, 1999, as having determined this issue in Plaintiffs' favor. Similarly, the court views Chief Judge Barbadoro's ruling as determinative of the issue of whether Plaintiffs should be compensated for time spent in connection with the protective order. Plaintiffs successfully opposed the protective order and are entitled to compensation for the time spent in connection with that undertaking. Regarding Brown's argument that no compensation should be allowed for time spent analyzing Brown's time records, since the court has found that discovery of the records was reasonably necessary, it would be inconsistent to hold that no time should be allowed for reviewing them. Brown's suggestion for total disallowance, is, therefore, unwarranted.
2. Multiple Sets of Attorneys
Brown notes that attorneys who prosecute fee petitions generally enter their appearance in the case. See Brown's Mem. at 13 (referring to Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 958 (1st Cir. 1984)). Noting that these attorneys stand in the shoes of the attorneys who handled the merits, Brown argues that fee counsel should be compensated only to the extent that they stand in the shoes' of the merits attorneys. See id. at 13-14 (citing Grendel's Den).
Pinpoint citation by the court.
Brown argues that "[b]ecause the new attorneys are standing in [t]he shoes of the counsel for whom fees are sought, it is inherently redundant to have the original attorneys and the `stand-in' attorneys both be compensated for work on the fee petition." Id. at 14. In support of this argument, Brown cites White v. City of Richmond, 559 F. Supp. 127, 131 (N.D. Cal. 1982) ("[P]laintiffs' attorneys have in this case hired special counsel to prepare this motion for attorneys fees. Therefore, any hours spent by plaintiffs' counsel in pursuit of attorneys' fees were spent as clients rather than as attorneys, and these hours are not compensable."). Brown also suggests that the time Steptoe Johnson spent preparing their own fee petition should not be compensated on the theory that, "if the original attorney had prosecuted his or her own petition, this second layer of fee petition preparation would not have been necessary — therefore, to the extent that a second fee petition, for time preparing the petition, was made, that time was not for work spent "in the shoes of' the first counsel." Id. at 14 (citing Shadis v. Beal, 703 F.2d 71, 73 (3rd Cir. 1983) ("But the time [fee counsel] spent preparing its own fee petition is not time [merits counsel] would have expended had she prosecuted her own petition for fees. ")
Pinpoint citation by the court.
Plaintiffs counter that "there is no per se rule that only one attorney . . . should be compensated pursuant to § 1988. The proper question is whether the application, for one or more attorneys, is reasonable, eliminating inefficiencies or duplications that might arise from use of more than one attorney." Plaintiffs' Reply Mem. at 12 (quoting Schultz v. Amick, 955 F. Supp. 1087, 1115 (N.D. Iowa 1997). Plaintiffs also citeSchultz for the proposition that "where more than one attorney represents the prevailing party, the contribution of all attorneys must be taken into consideration and the fees awarded should reflect the efforts of all." Id. (quoting Schultz, 955 F. Supp. at 1114 (citing A.J. v. Kierst, 56 F.3d 849, 863-64 (8th Cir. 1995))). Moreover, Plaintiffs claim that they "have been careful to avoid duplication of effort and to eliminate from their fee petition time that was even arguably excessive." Plaintiffs' Reply Mem. at 12 (citing Plaintiffs' Mem. Ex. 1 (Labinger Decl.) ¶ 7; id., Ex. 2 (Brueckner Decl.) ¶¶ 5, 7; id., Ex. 3 (Warin Decl.) ¶ 27). They assert that they excluded 24% of their hours expended on fee litigation. See id. at 13.
The court views this issue as subsumed within the larger problem of the retention of special fee counsel. Because the court has determined that there was no need to engage out-of-state fee counsel, it will not make a separate reduction due to the fact that there were multiple sets of attorneys involved in this Motion. Rather, it is included as part of the adjustment which the court will make because of the presence of special fee counsel.
3. Reasonableness of Steptoe Johnson's Time
Brown argues that even if the court were to consider awarding fees to Steptoe Johnson, the amount of time spent was inordinate and unreasonable. See Brown's Mem. at 15. Brown alleges that "new attorneys getting involved in a case cannot be compensated for their time `getting up to speed' on a case." Id. (citing Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 958 (1st Cir. 1984)) (holding that time spent by fee counsel familiarizing himself with the case and obtaining information from merits counsel cannot be considered reasonable within the meaning of the Fees Act). The writeoffs contained in Steptoe Johnson's time are, in Brown's view, "extremely limited," id., and "the nearly constant contact between Steptoe Johnson and the other attorneys is clear evidence that Steptoe Johnson seeks to have Brown pay for its learning experience," id. at 16 n. 21. Additionally, Brown contends that "every move which Steptoe Johnson made was reviewed by multiple attorneys who had been involved in this case all along — to the point that this lawyering by committee rendered Steptoe Johnson's effort — or the rest of the attorney's [sic] efforts fully redundant and not compensable." Id. at 16. Brown suggests that, because of duplication of effort and the inefficiencies resulting therefrom, a substantial across the board reduction in the fees sought would be appropriate, rather than a painstaking review of all of the time records submitted." Id. at 17 (citing Goodwin v. Metts, 973 F.2d 378, 384 (4th Cir. 1992) (affirming a percentage reduction in hours); Schultz v. Amick, 955 F. Supp. 1087, 1115 n. 18 (N.D. Iowa 1997) (deeming a percentage reduction rather than hour by hour reduction to be appropriate for overstaffing or redundancy).
Pinpoint citation by the court.
Pinpoint citation by the court.
Plaintiffs dispute that Steptoe Johnson charged for getting up to speed. See Plaintiffs' Reply Mem. at 13 (citing Plaintiffs' Mem., Ex. 3 (Warm Decl.) ¶ 27). They maintain that Steptoe Johnson's prior successive fee application experience allowed "Ms. Hilmer to hit the ground running. . . ." Id. at 14. Plaintiffs deny that they engaged in lawyering by committee or otherwise performed redundant services. See id. at 15. To the contrary, they claim that "close cooperation and collaboration led to efficient and effective prosecution of the fee petition." Id.
Plaintiffs point out that the cases cited by Brown in support of its suggestion for a substantial across the board reduction based on overstaffing and/or redundancy also involved other factors. See Plaintiffs' Reply Mem. at 16-18. For example, in Goodwin v. Metts, 973 F.2d 378 (4th Cir. 1992), the plaintiffs' counsel's hours were reduced by fifty percent because a substantial number of hours had been spent on claims on which plaintiffs did not prevail and also because new lawyers were required to spend some time becoming familiar with the complicated facts and duplication resulted from the use of three to four lawyers when one or two reasonably would have sufficed. See id. at 380-81. Plaintiffs argue that none of the cases relied upon by Brown to support denial of compensation to Steptoe Johnson considered the issue of special fee counsel brought in to handle a vigorously contested fee petition. See Plaintiffs' Reply Mem. at 18.
The court views Brown's complaint about Steptoe Johnson's hours as a subpart of Brown's larger argument, namely, that the presence of specialized fee counsel was unnecessary and that bringing in new counsel resulted in duplication and inefficiencies. The court agrees that some duplication and inefficiency resulted from the decision to employ fee counsel while merits counsel continued to accumulate hours in defending their fee requests.
D. Adjustment of "Fees on Fees" Request
Although the court has concluded that the retention of Steptoe Johnson was not reasonably necessary, it will not disallow all of their hours. Steptoe Johnson unquestionably performed considerable work which if it had not been performed by that firm would have had to be performed by other counsel. However, because Plaintiffs have failed to demonstrate that it was reasonably necessary to use out-of-state specialized fee counsel, Steptoe Johnson should be compensated at Rhode Island hourly rates. See Guckenberger v. Boston Univ., 8 F. Supp.2d 91, 105 (D. Mass. 1998) (applying local rates to higher priced out-of-town counsel)
In determining the Rhode Island hourly rates to be applied to the Steptoe Johnson attorneys, the court has considered the information submitted regarding the qualifications of the attorneys. See Plaintiffs' Mem., Ex. 3 (Warm Decl.) ¶¶ 2-12. For Mr. Warm, who received his law degree in 1970, the court sets the rate at $210. See id. ¶ 2. For Ms. Hilmer, who received her law degree in 1989, a rate of $175 is appropriate. See id. ¶ 7. The court fixes the rate for Ms. Lang, a 1982 law school graduate, at $200. See id. ¶ 9.
In the prior petition, the court set $175 as the hourly rate of compensation for Rhode Island attorney Raymond Marcaccio. See R R of 8/10/01 at 103. Mr. Marcaccio received his law degree in 1986.See Table of Exhibits in Support of Renewed and Further Motion of the Plaintiffs for the Determination and Award of Attorneys' Fees and Costs ("Plaintiffs' Prior Exhibits") Vol. III, Ex. 15 (Affidavit of Raymond A. Marcaccio) ¶ 3.
No information has been submitted by Plaintiffs about the qualifications or experiences of the three Steptoe Johnson paralegals, Susan Knupp, Christine Zemina, and Karen Tucker. However, the court will assume that their level of training and experience is equal to that of Ms. Medeiros of Roney and Labinger and will apply to each of them an hourly rate of $75. Ms. Tami Cohen appears to have performed as a paralegal, but is not described by that title. See Plaintiffs' Mem., Ex. 3, Tab A (Time Descriptions for Tami Cohen) at 1. No information is submitted about her qualifications or experience, and there is some suggestion in the record that she had less experience than the other paralegals. Accordingly, for Ms. Cohen the court applies a rate of $60 per hour.
See n. 2.
The court will apply an across the board reduction of ten percent to the hours of all three firms because of the redundancy and inefficiencies resulting from the involvement of specialized fee counsel, see Rogers v. Okin, 821 F.2d 22, 31 n. 4 (1st Cir. 1987) (describing the practice of employing special fee counsel as "inherently wasteful"), abrogated on other grounds, Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), while the merits attorneys continued to accumulate hours in the defense of their fee petition, cf. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 958 (1st Cir. 1984) (recognizing that counsel handling the fee petition "should be awarded fees only to the extent that he stands in the shoes of original counsel"). The records reflect a considerable amount of time being expended by all attorneys reviewing and revising the work of other attorneys and discussing that work among themselves. For example, Attorney Bryant devoted more than fifteen and a half hours (and possibly as much as eighteen hours) to preparing an affidavit. See Plaintiffs' Mem., Ex. 2, Tab A (Time Descriptions for Arthur Bryant) (entries for 12/18/98, 12/21/98, 12/22/98, 1/4/99, 1/5/99). Yet, Ms. Brueckner worked on that same affidavit, appearing to devote at least as many, if not more, hours than Mr. Bryant. See id. (Time Descriptions for Leslie Brueckner) (entries for 12/7/98, 12/9/98, 12/10/98, 12/22/98, 12/23/98, 12/24/98, 12/28/98, 12/30/98, 1/3/99, 1/4/99, 1/5/99, 1/6/99). In addition, Ms. Labinger also appears to have worked on the Bryant affidavit because Ms. Brueckner's time records include a charge on January 3, 1999, for reviewing Ms. Labinger's "edits to A. Bryant affidavit." See id. (entry for 1/4/99). Attorney Lang spent 6.25 hours reviewing and inserting changes to the reply brief suggested by Ms. Labinger, see id., Ex. 3, Tab A (Time Descriptions for Lindsey B. Lang) at 5 (entry for 2/17/00), who herself had spent 5.5 or more hours drafting these changes, see id., Ex. 1, Tab A (Time Description for Lynette Labinger) at 35-36 (entries for 2/15/00, 2/16/00, and 2/20/00). Almost all of Mr. Warm's time is attributable to reviewing documents and participating in discussions with his fellow attorneys. See id. Ex. 3, Tab A (Time Descriptions for Roger E. Warin).
Ms. Labinger's time records for December 22, 1998, reflect that she wrote off .2 hours for "begin review A. Bryant draft affidavit."See Plaintiffs' Mem., Ex. 1, Tab A (Time Description for Lynette Labinger) at 9.
In addition, the court has doubts about the accuracy of Mr. Warm's timekeeping. He charged 2.0 hours for participating in a conference call among five attorneys on August 22, 2001. See id., Ex. 3, Tab A (Time Descriptions for Roger E. Warm) (entry for 8/22/01). For that same conference call Ms. Labinger billed 1.0 hour, Mr. Bryant billed .9 hours, and Ms. Brueckner billed 1.06 hours. See id., Ex. 1, Tab A (Time Descriptions for Lynette Labinger) at 54 (entry for 8/22/01); id., Ex. 2, Tab A (Time Descriptions for Arthur Bryant) at 5 (entry for 8/22/01); id., Ex. 2, Tab A (Time Descriptions for Leslie Brueckner) at 10. Accordingly, the court will apply an additional reduction of forty percent to Mr. Warm's hours for inaccurate timekeeping. Thus, the total reduction to Mr. Warm's hours is fifty percent (10% across the board reduction + 40% for inaccurate timekeeping = 50%).
Although the simultaneous participation of five plaintiffs' attorneys in a conference call appears to have been a unique occurrence, the record is replete with entries reflecting extensive telephone discussions among and between lesser numbers of plaintiffs' counsel.
Ms. Lang, who is reported by Ms. Labinger to have participated in the conference call, has no time recorded for August 22, 2001. However, she does claim 10 hours on August 23, 2001, for revising a "draft memorandum" and participating in a conference call with Mr. Warm, Ms. Labinger, Ms. Brueckner, and Mr. Bryant with no differentiation between these two tasks. The court is, thus, unable to determine how much time Ms. Lang claimed for the conference call.
Some of Ms. Lang's timekeeping fails to inform as to the amount of time devoted to particular tasks. For example, Ms. Lang billed 10 hours on August 23, 2001, for revising a "draft memorandum" and participating in the conference call. See Plaintiffs' Mem., Ex. 3, Tab A (Time Descriptions for Lindsey B. Lang) at 11 (entry for 8/23/01). Presumably, Ms. Lang made an error in recording the date as the other participants in the call report it as occurring on August 22, 2001. The problem is that she worked on only two tasks during this entire ten hour day, but neglected to indicate the time spent on each task. Thus, the court does not know whether she attributed approximately an hour to the conference call as did Ms. Labinger, Mr. Bryant, and Ms. Brueckner or two hours as did her colleague, Mr. Warm. This does not constitute adequate timekeeping. In a similar vein, Ms. Lang billed more than twenty-four hours for "research for reply brief" without identifying the subject(s) being researched. See id. at 1, 3 (entries for 11/24/99, 11/29/99, 12/3/99, 12/7/99, 1/11/00, 1/12/00, 1/14/00). Again, this does not allow either Brown or the court to evaluate the reasonableness of this time. Also, Ms. Lang's records reflect time charged for conferring with and sending c-mails and memos to Mr. Warm and others at Steptoe Johnson which should not be compensated at full rates. See, e.g., id., Ex. 3 (Time Descriptions for Lindsey B. Lang) at 10-14 (entries for 8/12/01, 9/7/01, 9/27/01, 9/28/01, 10/3/01, 10/30/01). Accordingly, the court will apply an additional reduction of five percent to Ms. Lang's hours for inadequate timekeeping and for work compensated at a reduced rate. Thus, the total reduction in Ms. Lang's hours will be fifteen percent (10% across the board reduction + 5% inadequate timekeeping and reduced rate work = 15%).
The court also finds that an additional reduction of five percent of the hours claimed by Ms. Hilmer is appropriate to account for time spent in internal communications with Mr. Warm and others at Steptoe and Johnson discussing the case, which the court deems should be compensated a reduced rate, see id., Ex. 3, Tab A (Time Descriptions for Tracy L. Hilmer), and because the court is not entirely convinced that the inefficiency resulting from Ms. Hilmer's departure and subsequent replacement by Ms. Lang has been fully addressed by Plaintiffs. Accordingly, the total reduction in Ms. Hilmer's hours will be fifteen percent (10% across the board reduction + 5% reduced rate work = 15%)
For the reasons explained above, the court recommends that attorneys' fees be awarded for the fees on fees portion of the Motion in the amounts shown below:
"Fees on Fees"
Firm Timekeeper Hours Rate Total
Roney Labinger Lynette Labinger 336.6 $210.00 $70,686.00 Jean Medeiros 26.8 $75.00 $2,010.00 Subtotal $72,696.00 TLPJ Arthur Bryant 40.8 $305.00 $12,444.00 Leslie Brueckner 173.4 $250.00 $43,350.00 Subtotal $55,794.00 Steptoe Johnson Roger Warin 6.2 $210.00 $1,302.00 Tracy Hilmer 135.7 $175.00 $23,747.50 Lindsey Lang 407.7 $200.00 $81,540.00 Susan Knupp 101.1 $75.00 $7,582.50 Christine Zemina 70.6 $75.00 $5,295.00 Karen Tucker 12.4 $75.00 $930.00 Tami Cohen 79.4 $60.00 $4,764.00 Subtotal $125,161.00 Total Fees on Fees $253,651.00
E. Merits Request
Brown objects to the request for time spent on the merits on the ground that it should have been submitted earlier. See Brown's Mem. at 21 (citing Tennessee Gas). The court is persuaded that the request is not untimely and that an award of fees for time spent on the merits is authorized. See Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 559, 106 S.Ct. 3088, 3095, 92 L.Ed.2d 439 (1986). However, the court agrees with Brown that the award should be limited to one attorney, and it will disallow the time claim by Mr. Bryant (4.8 hours) and reduce Ms. Labinger's hours for time attributable to her interaction with Mr. Bryant (4.8 hours).
The 4.8 hour reduction in Ms. Labinger's time is the result of the court's review of her time records for interaction with Mr. Bryant which is attributed to the "merits." The fact that the reduction equals the amount of time claimed by Mr. Bryant is a coincidence. The time entries of Mr. Bryant and Ms. Labinger regarding "merits" activity do not correlate exactly.
Merits
Firm Timekeeper Hours Rate Total
Roney Labinger Lynette Labinger 55.3 $210.00 $11,613.00 Jean Medeiros 5.2 $75.00 $390.00 Subtotal $12,003.00
F. Combined Total Attorneys Fees (Fees on Fees plus Merits)
Firm Fees on Fees Merits Total
Roney Labinger $72,696.00 $12,003.00 $84,699.00 TLPJ $55,794.00 $55,794.00 Steptoe Johnson $125,161.00 $125,161.00 Total Attys' Fees $265,654.00
II. Expenses
Plaintiffs also seek reimbursement for litigation expenses incurred by the three firms which total $15,557.59. See Motion at 1. The amounts sought by each firm are as follows: Roney and Labinger ($2,845.23), TLPJ ($3,063.60), and Steptoe Johnson ($9,648.76).
Brown's argument that no expenses should be awarded on the ground that the Motion is untimely, see Brown's Mem. at 21, has already been rejected by the court, see discussion supra Section I. A at 5. However, a reduction in the amount claimed is warranted as the court has determined that the employment of out-of-state special fee counsel was not reasonably necessary, and a considerable amount of the expenses claimed for duplication, facsimile, messenger services, overnight delivery services, long distance telephone, and postage are directly attributable to the presence of Steptoe Johnson in this action. Rather than undertake the burdensome task of making individual adjustments to these six items on the bills of three law firms, the court will instead apply an across the board reduction of ten percent to all of the expenses claimed by each firm.
The court also finds that TLPJ's claim for expenses is in summary form and lacks supporting documentation and explanation. See Plaintffs' Mem., Ex. 2, Tab B (Summary of TLPJ Expenses). The two pages attached to that summary do not explain how the totals were reached. None of the pages discloses the per page charge for copying. Consequently, the court will apply an additional twenty-five percent reduction to TLPJ's expenses for inadequate documentation. Thus, the total reduction to TLPJ's expense will be thirty-five percent (10% across the board + 25% inadequate documentation = 35%).
Steptoe Johnson's explanation of expenses is far more detailed. However, for the largest charge, $6,128.29, for computer research, the individual entries fail to identify the subject of the research. Although in some instances the court was able to identify the likely subject matter by referring to the time sheets of the person whose name appears next to the computer research charge, in other instances this was not possible. For example, on February 1, 1999, there are charges for $133.51 and $685.00 for computerized legal research with the name "Hilmer, T." next to each entry. See Plaintiffs' Mem., Ex. 3, Tab B (Summary of Steptoe Johnson Expenses) (entries 337, 340). The subject of the research is not disclosed, and the time records of Attorney Hilmer do not reflect any work on or near that date. This does not constitute an adequate explanation for the charge. Therefore, the court will reduce by twenty-five percent the amount claimed by Steptoe Johnson for computerized legal research because of inadequate identification of the subject matter of the research. A twenty-five percent reduction will also be applied to the amount claimed by Steptoe Johnson for duplication as the $.20 per page claimed rate exceeds the Rhode Island rate of $.15. Accordingly, the total reduction to Steptoe Johnson's expenses will be ten percent across the board and an additional $495.03 ($1,980.13 duplication charge x 25% $495.03) and an additional $1,532.07 ($6,128.29 computer research charge x 25% = $1,532.07).
Steptoe Johnson's charge for duplication is at the rate of $.20 per page. See Plaintffs' Mem., Ex. 3, Tab B (e.g. entries 190, 264, 580). The court rejected a similar rate claimed by TLPJ in the prior petition as excessive. See R R of 8/10/01 at 117 n. 60 (finding TLPJ's rate of .20 per page to be excessive). While Roney Labinger's statement of costs does not directly state the rate for copying, see Plaintiffs' Mem, Ex. 1, Tab B at 1 (Roney Labinger In Office Copy Charges), the court is able to deduce from the documentation submitted that it is $.15 per page.
Expenses
Firm Amount Reduction Amount Claimed Allowed
Roney Labinger $2,845.23 $284.52 $2,560.71 TLPJ $3,063.60 $1,072.26 $1,991.34 Steptoe Johnson $9,648.76 $2,991.98 $6,656.78 Total $15,557.59 $4,348.76 $11,208.83
III. Summary of Fees and Expenses for All Firms
Firm Attorneys Fees Expenses Total Due
Roney Labinger $84,699.00 $2,560.71 $87,259.71 TLPJ $55,794.00 $1,991.34 $57,785.34 Steptoe Johnson $125,161.00 $6,656.78 $131,817.78 GRAND TOTAL $265,654.00 $11,208.83 $276,862.83
Conclusion
For the reasons explained above, I recommend that Plaintiffs be awarded attorneys' fees of $265,654.00 and costs of $11,208.83. Any objections to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Fed R. Civ. P. 72(b); D.R.I. Local Rule 32. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district court and the right to appeal the district court's decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).