Opinion
Civil Action No. 4:95CV-335-B-B
January 24, 2000
MEMORANDUM OPINION
The issue of the proper amount of attorney's fees to be awarded to the plaintiffs pursuant to the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988, is before the court. The plaintiffs seek an award of attorney's fees and expenses in the sum of $258,447.08. The plaintiffs have submitted the affidavits of attorneys Taylor B. Smith, John G. Jones, William H. Liston, and Jenny M. Virden, along with an itemization of services and fees. The itemization reflects a total of 1,536.5 hours of work performed during a period of seven years.
In response, the defendants assert that the fees should be reduced because the fee requests contain excessive, redundant or otherwise unnecessary billing, non-compensable travel billing, time for non-prevailing claims against individual defendants, time needlessly seeking to intervene, and expenses for non-compensable office overhead. Further, the defendants ask for an overall reduction of fifty percent for unreasonably vague and cumulative billing. The defendants recommend a total fee of $99,447.46.
Attorney's Fees
Pursuant to 42 U.S.C. § 1988 et seq., the court is authorized to allow a prevailing party to recover reasonable attorney's fees as part of the costs. In determining attorney's fees, a district court must examine the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). However, it is not necessary for the court to examine each of the factors independently if it is apparent that the court has arrived at a just compensation based upon appropriate standards. Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987). In light of the twelve factors set out in Johnson, the court must determine "a lodestar figure equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work" and adjust the lodestar figure to reflect any factors not otherwise subsumed in the lodestar calculation. Nisby v. Commissioners Court of Jefferson County, 798 F.2d 134, 136-37 (5th Cir. 1986); Jackson v. Color Tile, Inc., 638 F. Supp. 62, 64 (N.D.Miss. 1986), aff'd 803 F.2d 201 (5th Cir. 1986). Once the lodestar is calculated, the court must address its reasonableness as a whole. Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L.Ed.2d 40, 48 (1983). After considering the Johnson factors, the court may adjust the lodestar upward or downward. League of United Latin Am. Citizens v. Roscoe Indep. Shc. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997).
Under Local Rule 54.2(B)(3), the Johnson factors are to be considered for any fee application.
(A) Number of hours reasonably expended:
Hours which are "excessive, redundant, or otherwise unnecessary" are not hours "reasonably expended" and should be excluded from calculation. Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L.Ed.2d 40, 50-51 (1983). The following entries by John F. Hawkins are either excessive or unnecessary and should be reduced as indicated: 11/05/96 (from 2.5 hours to 1 hour), 11/06/96 (from 3.5 hours to 2 hours), 11/07/96 (from 3 hours to 1.5 hours), 11/12/96 (from 5.25 hours to 3 hours), 11/13/96 (from 5.25 hours to 3 hours), 11/26/96 (from 2.75 hours to 1.25 hours), 11/27/96 (from 4.25 hours to 2.25 hours), 12/10/96 (from 2 hours to 1 hour), 12/13/96 (from 1.75 hours to 1 hour), 12/17/96 (from 2.25 hours to 1.5 hours), 01/22/97 (from 2.25 hours to 1.5 hours), 01/23/97 (from 5.5 hours to 3 hours), 01/24/97 (from 4 hours to 2.5 hours), 02/10/97 (from 3.25 hours to 2 hours), 02/11/97 (from 7 hours to 4 hours), 02/12/97 (from 14 hours to 8 hours), 02/13/97 (from 13 hours to 8 hours), 02/18/97 (from 3.5 hours to 2 hours), 02/26/97 (from 5.75 hours to 3.5 hours), 02/27/97 (from 13.5 hours to 8 hours), 02/28/97 (from 12 hours to 7 hours), 04/02/97 (from 2.25 hours to 1 hour), 04/04/97(from 2.25 hours to 1 hour), 04/17/97 (from 1.75 hours to 1 hour), 04/22/97 (from 2.25 hours to 1 hour), 06/24/97 (from 2 hours to 1 hour), 06/30/97 (from 3.5 hours to 2 hours), 07/12/97 (from 2.5 hours to 1 hour), 07/13/97 (from 7.75 hours to 4 hours), 07/14/97 (from 10.75 hours to 6 hours), 07/25/97 (from 2.5 hours to 1 hour), 08/20/97 (from 3.5 hours to 2 hours), 09/04/97 (from 2 hours to 1 hour), 09/10/97 (from 1.25 hours to .5 hour), 09/17/97 (from 1.25 hours to .5 hour), 10/07/97 (from 3 hours to 1.5 hours), 10/08/97 (from 2 hours to 1 hour), 10/09/97 (from 1.5 hours to .5 hour), 10/14/97 (from 2 hours to 1 hour), 10/16/97 (from 2.25 hours to 1 hour), 10/17/97 (from 3 hours to 1.5 hours), 10/19/97 (from 8 hours to 4 hours), 10/20/97 (from 13 hours to 8 hours), 10/22/97 (from 4 hours to 2 hours), 10/23/97 (from 2.5 hours to 1 hour), 10/24/97 (from 2.25 hours to 1 hour), 10/27/97 (from 6 hours to 4 hours), 10/29/97 (from 3 hours to 1.5 hours), 10/30/97 (from 3.5 hours to 2 hours), 11/02/97 (from 5 hours to 2.5 hours), 11/03/97 (from 12 hours to 8 hours), 11/04/97 (from 10.5 hours to 8 hours), 11/13/97 (from 2 hours to 1 hour), 11/14/97 (from 4.75 hours to 2.5 hours), 11/16/97 (from 3.5 hours to 2 hours), 11/17/97 (from 6 hours to 3 hours), 11/18/97 (from 2.5 hours to 1 hour), 12/02/97 (from 5 hours to 2.5 hours), 03/10/98 (from 2.25 hours to 1 hour), 03/16/98 (from 7.5 hours to 5 hours), 05/28/98 (from 6 hours to 3 hours), 06/15/98 (from 2.75 hours to 1 hour), 06/16/98 (from 2 hours to 1 hour), 06/26/98 (from 6 hours to 4 hours), 08/17/98 (from 3.75 hours to 2 hours), 08/19/98 (from 2 hours to 1 hour), 09/14/98 (from 2 hours to 1 hour), 09/15/98 (from 3 hours to 1.5 hours), 09/16/98 (from 3 hours to 1.5 hours), 10/14/98 (from 3.5 hours to 1.5 hours), 10/15/98 (from 8 hours to 4 hours), 10/16/98 (from 8 hours to 4 hours), 01/08/99 (from 2.5 hours to 1 hour), 01/11/99 (from 4 hours to 2 hours), 01/13/99 (from 3 hours to 1.5 hours), 01/14/99 (from 3.5 hours to 1.5 hours), 01/15/99 (from 5 hours to 2.5 hours), 01/16/99 (from 2.5 hours to 1 hour), 01/18/99 (from 3 hours to 1.5 hours), 01/19/99 (from 10 hours to 7 hours), 01/20/99 (from 4 hours to 2 hours), 01/21/99 (from 3 hours to 1.5 hours), 01/22/99 (from 8 hours to 5 hours), 01/25/99 (from 2 hours to 1 hour), 03/03/99 (from 2 hours to 1 hour), 03/04/99 (from 2 hours to 1 hour), 03/05/99 (from 8 hours to 4 hours), 03/26/99 (from 6 hours to 3 hours), 04/20/99 (from 2.5 hours to 1 hour), 04/21/99 (from 3 hours to 1.5 hours), 04/22/99 (from 8.5 hours to 6 hours), 04/23/99 (from 1.75 hours to 1 hour), 05/04/99 (from 1.75 hours to 1 hour), 05/06/99 (from 4.75 hours to 3 hours), 05/07/99 (from 2.25 hours to 1 hour), 05/13/99 (from 5.25 hours to 3 hours), 05/21/99 (from 8.5 hours to 6 hours), 05/24/99 (from 8.75 hours to 4.75 hours), 05/25/99 (from 9.25 hours to 5 hours), 05/26/99 (from 10.5 hours to 6 hours), 05/27/99 (from 8.5 hours to 4.5 hours), 07/19/99 (from 2 hours to 1 hour), 07/21/99 (from 8.5 hours to 5 hours), 07/22/99 (from 2.5 hours to 1 hour), 07/23/99 (from 5.25 hours to 3 hours), 07/24/99 (from 3.5 hours to 2 hours), 07/25/99 (from 8.5 hours to 4.5 hours), 07/26/99 (from 12.5 hours to 9 hours), 08/03/99 (from 8.25 hours to 4.25 hours), 08/04/99 (from 8.75 hours to 4 hours), 08/05/99 (from 10 hours to 5 hours), 08/06/99 (from 4 hours to 2 hours), 08/27/99 (from 3.5 hours to 2 hours), 08/31/99 (from 3.5 hours to 2 hours), 09/01/99 (from 5 hours to 3 hours), 09/02/99 (from 6.5 hours to 3.5 hours), 09/03/99 (from 5.5 hours to 3 hours), 09/30/99 (from 8.25 hours to 4 hours), 10/01/99 (from 4.5 hours to 2 hours), 10/04/99 (from 3.5 hours to 2 hours), 10/05/99 (from 4.25 hours to 2 hours), 10/06/99 (from 9.5 hours to 5 hours), 10/07/99 (from 8.75 hours to 4 hours). This amounts to a total reduction of 273.5 hours or $34,187.50.
All billing entries made by Maxey which resulted from conversations and office conferences with Hawkins, for which Hawkins billed this time also, are considered double billed and these following duplicate billing entries made by Maxey should be deleted in their entirety:
11/12/96 (.5 hour), 11/14/96 (.25 hour), 11/26/96 (1.00 hour), 11/27/96 (.5 hour), 12/05/96 (.25 hour), 12/12/96 (.25 hour), 12/17/96 (1.75 hours), 01/3/97 (.25 hour), 01/23/97 (.5 hour), 01/28/97 (.75 hour), 01/29/97 (.5 hour), 02/08/97 (.25 hour), 02/12/97(.75 hour), 02/13/97 (1.5 hours), 02/17/97 (1.25 hours), 02/18/97 (1.5 hours), 02/27/97 (.75 hour), 02/28/97 (1.00 hour), 03/10/97 (.25 hour), 04/02/97 (.5 hour), 04/16/97 (.75 hour), 04/21/97 (1.5 hours), 04/22/97 (.25 hour), 04/23/97 (1.25 hours), 05/29/97 (.25 hour), 06/30/97 (1.0 hour), 07/14/97 (2.00 hours), 07/25/97 (.50 hour), 08/05/97 (.50 hour), 08/12/97 (.50 hour), 08/19/97 (.75 hour), 10/17/97 (2.00 hours), 10/22/97 (1.25 hours), 10/23/97 (.75 hour), 10/28/97 (.50 hour), 11/03/97 (.50 hour), 11/05/97 (.50 hour), 11/10/97 (.25 hour), 11/13/97 (.75 hour), 12/24/97 (.50 hour), 03/15/98 (.75 hour), 05/26/98 (.25 hour), 08/11/98 (.25 hour), 08/17/98 (.75 hour), 08/19/98 (.25 hour), 09/15/98 (.75 hour), 10/15/98 (.25 hour), 10/16/98 (1.00 hour), 01/11/99 (.50 hour), 01/15/99 (1.75 hours), 01/18/99 (.50 hour), 01/23/99 (.50 hour), 01/25/99 (1.00 hour), 02/01/99 (.25 hour), 03/05/99 (1.00 hour), 05/12/99 (.75 hour), 05/24/99 (2.00hours), 05/25/99 (1.00 hour), 05/27/99 (1.00 hour), 07/21/99 (1.00 hour), 07/23/99 (.75 hour), 08/27/99 (.75 hour), 08/31/99 (1.25 hour). This amounts to a total reduction of 48.75 hours or $8,531.25.
Further, all billing entries made by Calhoun which resulted from telephone conversations and conferences with Hawkins, for which Hawkins billed this time also, are considered double billed and these following duplicate billing entries made by Calhoun should be deleted in their entirety:
11/06/96 (1.00 hour), 11/07/96 (1.00 hour), 11/07/96 (.40 hour), 11/12/96 (1.00 hour), 1/13/96 (1.00 hour), 11/19/96 (.60 hour), 11/20/96 (.40 hour), 11/21/96 (.50 hour), 11/22/96 (.70 hour), 11/26/96 (.60 hour), 11/26/96 (.50 hour), 11/27/96 (.40 hour), 12/03/96 (.90 hour), 12/05/96 (.40 hour), 12/09/96 (.50 hour), 12/12/96 (.40 hour), 12/13/96 (.50 hour), 12/17/96 (.50 hour), 12/18/96 (.30 hour), 01/06/97 (.80 hour), 01/23/97 (1.00 hour), 01/24/97 (.60 hour), 01/28/97 (.40 hour), 01/30/97 (.60 hour), 02/10/97 (1.00 hour), 02/13/97 (.80 hour), 02/14/97 (.30 hour), 02/17/97 (1.00 hour), 02/18/97 (.60 hour), 02/20/97 (.50 hour), 03/05/97 (.30 hour), 03/10/97 (.30 hour), 03/25/97 (.40 hour), 03/31/97 (.30 hour), 04/01/97 (.40 hour), 04/04/97 (.50 hour), 04/11/97 (.30 hour), 07/02/97 (.80 hour), 07/14/97 (1.00 hour), 08/18/97 (.30 hour), 09/02/97 (.20 hour), 10/01/97 (.50 hour), 10/07/97 (.50 hour), 10/09/97 (1.00 hour), 10/17/97 (.50 hour), 10/17/97 (.50 hour), 10/22/97 (.50 hour), 10/22/97 (.60 hour), 10/23/97 (.40 hour), 10/23/97 (.40 hour), 10/24/97 (.40 hour), 10/24/97 (.40 hour), 10/28/97 (.50 hour), 10/30/97 (.60 hour), 10/30/97 (.50 hour), 10/30/97 (.50 hour), 11/11/97 (.40 hour), 11/17/97 (1.00 hour), 12/02/97 (.20 hour), 12/02/97 (.20 hour), 12/29/97 (.50 hour), 05/08/98 (1.00 hour), 05/28/98 (1.40 hours), 06/01/98 (.40 hour), 06/03/98 (.30 hour), 06/08/98 (.40 hour), 06/15/98 (.40 hour), 06/16/98 (.50 hour), 06/16/98 (.30 hour), 06/23/98 (1.00 hour), 06/25/98 (.30 hour), 07/07/98 (.40 hour), 08/11/98 (.30 hour), 08/17/98 (.50 hour), 08/17/98 (.40 hour), 08/18/98 (.40 hour), 08/19/98 (.30 hour), 08/25/98 (.30 hour), 09/14/98 (.50 hour), 09/14/98 (.50 hour), 09/15/98 (.50 hour), 09/16/98 (.30 hour), 10/28/98 (.30 hour), 01/11/99 (1.00 hour), 01/15/99 (1.00 hour), 01/18/99 (1.00 hour), 01/19/99 (.40 hour), 01/20/99 (1.00 hour), 01/20/99 (.30 hour), 01/20/99 (.40 hour), 01/20/99 (.40 hour), 01/21/99 (1.10 hours), 01/27/99 (.30 hour), 01/28/99 (.40 hour), 02/05/99 (.70 hour), 02/10/99 (.50 hour), 02/18/99 (.40 hour), 02/22/99 (.40 hour), 03/09/99 (.40 hour), 03/15/99 (.40 hour), 04/07/99 (.60 hour), 04/21/99 (.40 hour), 05/03/99 (.60 hour), 05/05/99 (.50 hour), 05/06/99 (1.00 hour), 05/10/99 (.40 hour), 05/12/99 (.40 hour), 05/13/99 (1.00 hour), 05/13/99 (.50 hour), 05/13/99 (.40 hour), 05/13/99 (.50 hour), 05/18/99 (.30 hour), 05/24/99 (.10 hour), 05/24/99 (1.00 hour), 05/28/99 (.30 hour), 05/28/99 (.30 hour), 06/15/99 (.30 hour), 07/15/99 (.40 hour), 07/22/99 (.25 hour), 07/22/99 (.40 hour), 07/23/99 (1.00 hour), 07/27/99 (.40 hour), 08/04/99 (.40 hour), 08/05/99 (1.00 hour), 08/10/99 (.30 hour), 08/27/99 (.50 hour), 09/02/99 (.40 hour). This amounts to a total reduction of 68.55 hours or $10,282.50.
The defendants also seek to have all attorney's fees that predate the filing of the complaint disallowed. Attorney fees may be recoverable for reasonable work prior to the commencement of litigation. Watkins v. Fordice, 807 F. Supp. 406, 412-13 (S.D.Miss. 1992). In this cause, Calhoun's billing of attorney's fees began on August 19, 1992, and the first draft of the complaint was on August 21, 1995. During this period, Calhoun billed 67.15 hours at $150 per hour which amounts to $10,072.50. The court finds that this is an unreasonably high amount of attorney's fees for work done prior to the commencement of litigation. Therefore, the court should reduce the 67.15 billed hours by one-third, 22.38 hours, resulting in a reasonable reduction of $3,357.50 to the amount billed for work prior to the commencement of the litigation.
The defendants' contentions that the attorney's fees should be reduced as the fees pertain to the motion to intervene, the non-prevailing claims against defendants in their individual capacities, and the attendance of a nonparticipating attorney are not well-taken by the court. Thus, the court finds that the attorney's fees for these hours should not be reduced, that they are reasonable, and that they should be duly awarded. Further, the plaintiffs' request for attorney's fees with respect to their rebuttal memorandum in support of the motion for attorney's fees and expenses should be allowed.
(B) Hourly rates:
The defendants object to the hours claimed for travel, claiming that these hours should not be compensated at a rate equal to that for hours spent on actual legal services. Courts have agreed with this contention and held that travel time should be compensated at a rate which is less than the reasonable hourly attorney's fee rate. See Herdahl v. Pontotoc County Sch. Dist., 964 F. Supp. 1113, 1117 (N.D.Miss. 1997). These cases awarded compensation at an hourly rate which was fifty percent of the reasonable hourly rate for legal services rendered. Therefore, persuaded similarly, this court should compensate the 58.8 hours claimed by plaintiffs' counsel as travel time at half of the hourly rate of the attorneys. Thus, the $14,212.50 for the travel time expended by the attorneys in this matter should be reduced by half for a total reduction of $7,106.25.
The plaintiffs' attorneys seek the following hourly rates for services rendered in this action:
$125 per hour for John F. Hawkins; $150 per hour for Tom P. Calhoun, III; and $175 per hour for John L. Maxey, II. The plaintiffs have submitted the affidavits of four independent attorneys, Taylor B. Smith, John G. Jones, William H. Liston, and Jenny M. Virden, which support the aforementioned rates. These attorneys are familiar to the court and the court finds their affidavits to be persuasive.
After deducting all hours not reasonably expended, unreasonable pre-litigation fees, and duplicate billing hours, the compensable hours expended are as follows: 75 hours by Maxey; 535.25 hours by Hawkins; and 513.07 hours by Calhoun. The court finds that the proposed hourly rates are reasonable and customary and should be multiplied by these compensable hours expended (subject to the aforementioned reduction in rate for travel time and duplication of hours) to arrive at a lodestar amount of $149,885.50.
(C) Adjustment to the lodestar amount:
In addressing the twelve Johnson factors, the court finds as follows:
(1) The time and labor required: The court has considered this factor in determining the appropriate number of hours reasonably expended and the appropriate hourly rate.
(2) Novelty and difficulty of the questions: The court finds that this factor does not warrant adjustment of the lodestar amount.
(3) The skill requisite to perform the legal services properly: Although this cause may have required greater than average skill, in that 42 U.S.C. § 1983 law is a specialized field, the court has considered this factor in determining the appropriate hourly rate.
(4) The preclusion of other employment due to acceptance of this case: The court finds that this factor does not warrant adjustment of the lodestar.
(5) The customary fee: This factor is subsumed in the lodestar as the hourly rate. The aforementioned hourly rate is in accordance with the prevailing rates in the community.
(6) Whether the fee is fixed or contingent: The court finds that this factor does not warrant adjustment of the lodestar.
(7) The time limitations imposed by the client or the circumstances: The court finds that this factor does not warrant adjustment of the lodestar.
(8) The amount involved and the results obtained: The court has considered this factor in determining that the plaintiffs were considered the prevailing party in the action and in determining the number of hours reasonably expended. Upon further consideration, the court takes notice of the plaintiffs' success in obtaining actual damages, retirement benefits, and injunctive and declaratory relief in this cause. However, with a total amount of monetary damages awarded amounting to $34,013.72, with the possibility through retirement benefits of extending this amount to approximately $56,500.00, the contention by the plaintiffs that a fifteen percent (15%) enhancement is warranted is not well-taken.
(9) The experience, reputation, and ability of the attorney: The court has considered this factor in determining the appropriate hourly rate.
(10) The "undesirability" of the case: The plaintiffs' attorneys contend that this cause was undesirable due to the cause being against a municipality and the possibility of a small monetary recovery upon prevailing in the cause. Upon due consideration, the court finds that this factor does not warrant adjustment of the lodestar.
(11) The nature and length of the professional relationship with the client: The court finds that this factor does not warrant adjustment of the lodestar.
(12) Awards in similar cases: The plaintiffs submitted evidence of awards of attorney's fees in cases similar to this one, and the court therefore finds that this factor does not justify adjustment to the lodestar amount.
Upon due consideration of each of the Johnson factors, the plaintiffs' request of a fifteen percent (15%) enhancement is not well-taken; thus, $32,671.36 should be deducted from the total amount of attorney's fees requested by the plaintiffs. The court is also of the opinion that the defendants' request for an overall reduction of fifty percent for unreasonably vague and cumulative billing has been considered by the court in the determination of the loadstar, and therefore, the court will not incorporate a blanket reduction of fifty percent. The court finds that the lodestar amount computed equals a reasonable amount and produces a final award of attorney's fees of $149,885.50.
Expenses
The defendants contend that expenses for secretarial services in connection with this cause are not recoverable as an expense and should be disallowed. Secretarial services are part of an attorney's overhead and these charges are not recoverable as an item of cost or expense. Watkins v. Fordice, 807 F. Supp. 406, 420 (S.D.Miss. 1992). Therefore, the plaintiffs' request for expenses in the amount of $12,455.72 should be reduced by $665.08 which represents the amount of the secretarial services claimed. The court finds that the plaintiffs' other expenses are reasonable and necessary, and the plaintiffs should be compensated expenses in the amount of $11,790.64.
Conclusion
The court finds that the plaintiffs are the prevailing party and therefore are entitled to an award of attorney's fees and expenses in the total sum of $161,676.14. An order will issue accordingly.