Summary
awarding $32,292.50 as reasonable attorney's fees in an employment discrimination case under La. R.S. 23:303A considering the Johnson factors and a jury verdict of $70,000.00 in general damages
Summary of this case from Dinet v. Hydril CompanyOpinion
Civil Action 02-3667 Section "T" (5).
September 7, 2004
ORDER
This cause came for hearing on December 17, 2003, on a motion by the plaintiff for an award of attorney's fees and costs. The defense filed an opposition, opposing the rate sought by plaintiff's lead counsel, as well as various costs. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence is fully advised in the premises and ready to rule.
BACKGROUND:
Pending before this Court is a motion for attorney's fees and court costs filed by the plaintiff's attorney, Mr. Peter Freiberg ("Mr. Freiberg"). The plaintiff was represented by Mr. Freiberg from August 16, 2002 through the conclusion of the trial on this matter on November 18, 2003. The lawsuit was filed pursuant to L.S.A.-R.S. 23:303 which authorizes a plaintiff to bring a civil suit alleging employment discrimination against her employer seeking damages and reasonable attorney's fees and court costs. On November 18, 2003, a jury entered a verdict in favor of the plaintiff, awarding to her $70,000 in general damages. The plaintiff has now filed this requisite motion to request this Court to award her an amount representative of her reasonable attorney's fees and court costs.
LAW AND ANALYSIS:
The above captioned law suit was filed pursuant to the substantive law of L.S.A.-R.S. 23:303, which authorizes a plaintiff to bring civil suit alleging employment discrimination against an employer seeking damages and "reasonable attorney fees and court costs." The calculation of reasonable attorney's fees in the instant action is calculated through a method which mirrors the "lodestar" method used in Title VII litigation.
Determination of reasonable attorney's fees under the "lodestar" is a two step process. The first step is to calculate the appropriate "lodestar" amount, which is obtained by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. After making the aforementioned calculation, the district court must then determine if the lodestar amount should be decreased or enhanced based on the relative weights of the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717, 719 (5 th Cir. 1974).
In the instant case, the plaintiff alleges 189. 75 total hours of work by attorney Peter Freiberg, 5.25 hours by attorney Kevin Huddell, 24.75 hours by paralegal Danielle Sims, and 7.5 hours by jury consultant Victoria Exnicios. The defense's sole opposition to the number of hours requested by the plaintiff relates to time that Mr. Freiberg and paralegal Ms. Exnicios spent on the issue of economic loss. The defense opposes these hours because the plaintiff was not awarded any damages by the jury for economic loss.
A plaintiff must be the "prevailing party" in order to recover attorney's fees. The standard for making this threshold determination has been framed in various ways. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A typical formulation is that "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Id., citing Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (CAI 1978). This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is "reasonable". Id.
The defense has not requested nor has the Court made any other adjustments to the number of hours sought by the plaintiff. The Court is of the opinion that a reduction in hours of less than ten percent is reasonable. Accordingly, Mr. Freiberg's hours will be reduced by 16.75 and Ms. Exnicios's hours will be reduced by 7.5. It is the Court's opinion that given the length of time the plaintiff was represented by Mr. Freiberg's firm and the details of the case, the adjustments above and the resulting total number of hours are reasonable as required under the "lodestar" and in accordance with Hensley.
Next, the Court must examine the hourly rates requested by plaintiff's counsel. Counsel, Peter Freiberg, requests a rate of $250.00 per hour for himself, a rate of $150.00 per hour for attorney Kevin Huddell, a rate of $55.00 per hour for the paralegal Danielle Sims, and a rate of $55.00 per hour for the jury consultant Victoria Exnicios. The defense asserts, however, that an hourly rate of $250.00 per hour for Peter Freiberg is "outrageous."
An attorney's requested rate is prima facie reasonable when he requests that the lodestar be computed at his or her customary billing rate, the rate is within the range of prevailing market rates, and the rate is not contested. Louisiana Power and Light Co. v. Kellstrom, 50 F.3d 319, 328 (5 th Cir. 1995). Mr. Freiberg has submitted his brief in this matter, which does allege that his customary billing rate is $250.00 per hour and he has cited some jurisprudence which places his rate within, but at the uppermost edge of, the market rates. Raspanti v. United States Department of the Army, 2001 U.S. Dist. Lexis 14610 (E.D. La. 9/10/01). The defense has, however, contested the rate sought by Mr. Freiberg and the Court therefore has reviewed and evaluated Mr. Freiberg's requested rate. In so doing, this Court has determined the hourly rate sought by Mr. Freiberg to be excessive and unreasonable.
It is the opinion of this Court that an hourly rate of $250.00 for Mr. Freiberg's work is extraordinary and not customary in this community. Rather, this Court finds that an hourly rate of $175.00 is within the range of prevailing market rates for lawyers with comparable experience and expertise in litigation of this type, and that this rate is reasonable in this case for all of his work. In examining Mr. Freiberg's requested rates, this Court found it helpful to examine the extensive decision of Magistrate Wilkinson in Raspanti v. United States Department of the Army, 2001 U.S. Dist. Lexis 14610 (E.D.La. 9/10/01). In Raspanti, Magistrate Wilkinson examined the various attorney's fees awards across the Eastern District. In so doing, Magistrate Wilkinson provides a complete picture of the recent judgements in this District along with the requisite requirements for various rates. Id at *5-*6.
Magistrate Wilkinson's analysis in Raspanti cites ten different cases in the Eastern District and each Judge's reasoning for awarding correlating attorney's fees. There was only one of the ten cases cited by Magistrate Wilkinson where an attorney was awarded a rate of $250.00 an hour, United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp.2d 546, 569 (E.D.La. 1999), vacated on other grounds, 244 F.3d 486 (5 th Cir. 2001). The aforementioned case was decided by Judge Duval in 1999. In said case, Judge Duval "awarded rates at the high end of each attorney's usual range because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting." Id. The facts of the Garibaldi case are wholly diverse from the ones in the instant action. This action was a relatively uncomplex discrimination case with in this Court's opinion no particular difficulty.
The other nine cases cited by Magistrate Wilkinson are much more analogous to this action and it is therefore the opinion of this Court that a rate more in accordance with such be awarded. For these reasons, Mr. Freiberg will be awarded a rate of $175 per hour and for the same reasons, attorney Kevin E. Huddell will be awarded a rate of $125.00 per hour. Paralegal Danielle Sims and jury consultant Victoria Exnicios will receive the requested rates of $55.00 per hour each.
In accordance with the above adjusted hourly rates and the unopposed number of hours, the plaintiff will receive the following award in attorneys' fees:
Peter N. Freiberg 173 hours at $175.00 per hour $ 30,275.00
Kevin E. Huddell 5.25 hours at $125.00 per hour $ 656.25
Danielle Sims 24.75 hours at $55.00 per hour $ 1,361.25 ___________ TOTAL AMOUNT IN FEES $ 32,292.50
After making these reductions in the rates, this court finds that the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is reasonable in this case and that no further reduction or enhancement is required in this case. In making this recommendation, the Court has considered and applied all factors articulated in Johnson, as required by the Fifth Circuit.
In addition to fees, the plaintiff requests an award of $10,126.25 in actual costs incurred in this case. In support of said request, the plaintiff attaches an account of additional charges. The defense takes issue with the plaintiff's account of the various additional charges and cites various reasons why these additional costs should not be awarded.
"[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d). A Court may tax as costs only the following: (1) fees of the clerk of court and marshal; (2) court reporter fees for all or any part of stenographic transcripts "necessarily obtained for use" in the case; (3) fees for printing and witnesses; (4) fees for exemplification and copies of papers "necessarily obtained for use" in the case; (5) docket fees; and (6) compensation for court appointed experts. 28 U.S.C. § 1920. Allowable costs are limited to these categories, and expenses that are not authorized by statute must be borne by the party incurring them. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-442 (1987).
Postage is not recoverable as a cost because it is not listed in Section 1920. Johnson v. State, No. 98-266T, 2000 WL 303305, at *14(D.R.I. Mar. 22, 2000). The plaintiff's request for postage totaling $19.65, therefore, is denied. "Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent `overhead' costs not litigation costs." Id.
The cost of copies of papers may be taxed under Section 1920(4) if "necessarily obtained for use in the case." Copies may be deemed necessary even if not used in the trial of the matter. Consequently, in order for copies to be taxable in a case, the party seeking to tax the costs must show some evidence of necessity. Photocopying costs for the convenience, preparation, research, or records of counsel may not be recovered.Johnson, 2000 WL 303305 at *14-15 (citing Piester v. IBM Corp., No. 97-2330, 1998 WL 1267929, at *2 (1st Cir. May 14, 1998).
The plaintiff has requested an award of $995.22 in photocopying expenses. The plaintiff's accounting of the copying expenses are vague (i.e. internal copying charges for the month of ____). There is no way for the Court to determine which of these expenses were in preparation of trial and which were not. While the burden is placed on the party seeking costs to prove necessity and the plaintiff has failed to do so; the Court is of the opinion that an award of twenty-five percent is reasonable. The plaintiff is therefore awarded $248.81 in copying expenses.
Under Section 1920, a prevailing party may recover expert witness fees only for court-appointed experts. Crawford Fitting Co., 482 U.S. at 442. There were no such experts in this case, therefore all requests for expert fees are denied.
The only remaining costs requested by the plaintiff are $186.62 in Westlaw and Lexis research. These costs are also not listed under Section 1920 and therefore must also be denied.
CONCLUSION:
For the forgoing reasons, IT IS ORDERED that the plaintiff's motion for attorney's fees and costs is GRANTED IN PART AND DENIED IN PART and the plaintiff is awarded $32,292.50 in reasonable attorney's fees and $248.81 in costs.
Accordingly,
IT IS ORDERED that the Plaintiff be awarded $32,292.50 in attorney's fees and $248.81 in costs.