2005 | Cited 0 times | D. Maine | May 23, 2005


The plaintiff, Durwood L. Currier, seeks to recover $206,285.28in attorney fees and costs associated with this case, pursuant toFed.R.Civ.P. 54(d) and this court's Local Rule 54.2.Plaintiff's Motion for Award of Attorneys' Fees and Costs, etc.("Motion") (Docket No. 158) at 1, 10. The defendant opposes themotion in part, arguing for a lower award, although no amount isspecified, but not contending that no award should be made.Defendant's Opposition to Plaintiff's Motion for Award ofAttorneys' Fees and Costs ("Opposition") (Docket No. 164). Irecommend that the court grant the motion in part.

The plaintiff in this case asserted two claims against thedefendant under the Age Discrimination in Employment Act("ADEA"), 29 U.S.C. § 621 et seq., and the Maine Human RightsAct, 5 M.R.S.A. § 4571 et seq.1 Count I allegeddisparate treatment discrimination under the federal act; CountII alleged disparate treatment under the state statute. Complaint and Demandfor Jury Trial (Docket No. 1) ¶¶ 20-30. The defendant's motionfor summary judgment was granted as to the other two counts inthe complaint, which alleged disparate impact discriminationunder the same two statutes. Order Affirming Recommended Decisionof the Magistrate Judge, etc. (Docket No. 35) at 2 (April 30,2003). Trial was held from January 12-15, 2004. Docket No. 127.Judgment was entered on a jury verdict in favor of the plaintiffon both counts. Amended Judgment (Docket No. 151).

As the First Circuit teaches, ordinarily, the trial court's starting point in fee-shifting cases is to calculate a lodestar; that is, to determine the base amount of the fee to which the prevailing party is entitled by multiplying the number of hours productively expended by counsel times a reasonable hourly rate. Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case and then subtracting from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary. The court then applies hourly rates to the constituent tasks, taking into account the prevailing rates in the community for comparably qualified attorneys. One established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances.Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992) (citationsand internal punctuation omitted).2 I will address thedefendant's objections to specific aspects or portions of the feerequest in the order in which they were presented by thedefendant.

Paralegal Time

The plaintiff seeks to recover $1,750.00, representing 25 hoursof paralegal time at the rate of $70 per hour. Motion at 10. Thedefendant points out that only 24.7 hours are included on thetime sheets submitted in support of this request. Opposition at 2n. 2. An adjustment will be made to reflect that minor discrepancy. See timesheets, Attachment 1 to Affidavit of LouisB. Butterfield ("Butterfield Aff.") (Docket No. 159). Thedefendant then argues that "[o]nly approximately 15 hours of the25 paralegal hours claimed by Plaintiff should be recoverable,"because "approximately 10 hours" of the recorded time "involvetasks that are properly included in firm overhea?d or thatconstitute the practice of law." Opposition at 3. Reimbursementfor work performed by a paralegal that constitutes the practiceof law is not appropriate. Weinberger v. Great N. NekoosaCorp., 801 F. Supp. 804, 823 (D. Me. 1992). Reimbursement is notavailable for purely clerical tasks performed by paralegals.Lipsett, 975 F.2d at 939-40. The defendant identifies "MFMentries on Time Sheets" other than those dated October 16-18,2002, December 11, 2002 and January 10, 2003 as falling withinthose categories. Opposition at 3 nn. 4 & 5. The defendant doesnot indicate which of these entries it contends demonstrate thepractice of law and which consist only of clerical tasks. Myreview of the entries on the challenged dates quickly revealsmany entries which are the essence of paralegal work, e.g.,"[c]ompile and redact exhibits," January 13, 2003; "[a]ttentionto exhibits for trial," December 23, 2003; "Preparation of trialand witness notebooks," December 31, 2003. I find no entries onthe identified dates that could reasonably be interpreted asshowing that the paralegal engaged in the practice of law. Otherthan numerous entries for two-tenths of an hour devoted to"[p]reparation of Certificate of Service; Correspondence toClerk," e.g., October 22, 2002; February 13, 2003; April 14,2003; August 27, 2003; October 16, 2003; January 7, 2004;February 4, 2004; February 23, 2004; March 8, 2004; March 11,2004, none of the entries for work by a paralegal on thechallenged dates may reasonably be characterized as clericalwork. I conclude that even the entries for preparation of acertificate of service and correspondence to the clerk of courtfall "into the gray area between purely clerical tasks and those properly entrusted to a paralegal,"Lipsett, 975 F.2d at 940, and recommend that they not bedisallowed.

With respect to paralegal time, therefore, I recommend areduction of $21.00, representing three-tenths of an hour.

Lawyer's Time Spent On Clerical or Secretarial Tasks

The defendant identifies 44.2 hours of Attorney Butterfield'stime which it contends were spent on clerical or secretarialtasks for which reimbursement should be "substantiallydiscount[ed] or entirely eliminate[d]." Opposition at 3. It citesKimball v. Shalala, 826 F. Supp. 573, 576 (D. Me. 1993), insupport of this proposition. Opposition at 3. However, in thatcase, this court concluded that the attorneys seeking a fee awardhad included in their request under the Equal Access to JusticeAct and the Social Security Act 1.85 hours spent on "basicnonlegal correspondence for which it would be improper to chargea client at the usual hourly rate" and reduced the hourly rateapplicable to those hours by half; it did not characterize suchactivities as clerical or secretarial. Kimball,826 F. Supp. at 576. All but one-tenth of the discounted 1.85 hours was listed ontime sheets as "correspondence to Client." Id. n. 1. InLipsett, another case cited by the defendant, the First Circuitmerely stated that time spent in "translations of documents andcourt filings" by lawyers should be compensated at "a lessextravagant rate" than that allowed by the district court.975 F.2d At 940. In the final case cited by the defendant, Oppositionat 3, Magistrate Judge Kravchuk recommended that the "timecounsel spent putting together their retention and feeagreements" — some 22.95 hours — was unreasonable and should bereduced by half. Adams v. Bowater Inc., 2004 WL 1572697 (D. Me.May 19, 2004), at *8. Although this recommended reduction appearsunder the heading "Nonlegal work performed by an attorney,"id., the reduction cannot fairly be characterized as havingbeen made because the hours claimed were "spent on clerical oradministrative functions," as the defendant asserts, Opposition at 3. To beginwith, then, none of the authority cited by the defendant supportsits contention that all of the challenged 44.2 hours should beeliminated.

In most instances, I am unable to discern from the text andfootnote in Kimball, in which the analysis rests on SocialSecurity case law differentiating between "core" and "non-core"activities by counsel, 826 F.2d at 576, what it was about thecorrespondence between the attorney and his client that renderedthat correspondence "nonlegal." Several of the 49 entries in thetimesheets which the defendant contends should be disallowed onthis basis3 cannot reasonably be construed as mere"administrative" activity. E.g., March 29, 2002 ("[c]onferencewith client and Attorney Nugent re second-opinion evaluation ofclaims"); May 5, 2003 ("[r]eview Motion for Protection from Trialreceived from Attorney Bennett"); November 26, 2003("[c]onference with [this court's information technologyspecialist] re evidentiary presentations"). Most of the otherentries challenged by the defendant consist of activities inwhich every lawyer will engage in the course of representing aclient and which cannot or should not be performed by clerical orparalegal employees. Some of the correspondence at issue inKimball involved what appears to have been mere conveyance oforders or court decisions to the client. 826 F. Supp. at 576 n.1. None of the challenged entries in the timesheets at issue herecan be read to record the execution of a similarly limited task.I recommend that no reduction or disallowance be made on thisbasis.

Unsuccessful Claims

The defendant next argues that attorney fees for time spent onthe disparate impact claims on which summary judgment was grantedin the defendant's favor should be excluded from the award.Opposition at 3-5. Upon determining that a party has prevailed on a claim that provides for fee shifting, a court must then determine whether the claims on which the party lost were unrelated to the successful claims, or whether they derived from a common core of facts or related legal theories. As with other aspects of fee award determinations, district courts retain broad deference in determining the relatedness of claims. Moreover, a close relationship between claims does not necessarily preclude district courts from reducing the total number of hours billed to account for the unsuccessful claims. Where the successful and unsuccessful claims are closely related, the district court may either identify specific hours that should be eliminated, or simply reduce the award to account for the limited success.

Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837, 848 (D. Me.1996) (citations omitted).

In cases in which a party has succeeded on only some claims, a court should exercise its judgment to ensure that parties do not recover for work expended on unsuccessful claims, but also to ensure that parties are not penalized for raising alternative legal arguments in good faith. Hence, a party who establishes that claims on which that party did not prevail are based on a "common core of facts" or "related legal theories" to those claims on which the party did prevail may receive complete compensation for the work pertaining to such facts or theories.Okot v. Conicelli, 180 F.Supp.2d 238, 243 (D. Me. 2002)(citations omitted). In performing this analysis, the court mustgive "primary consideration to the amount of damages awarded asto the amount sought." Id. (quoting Farrar v. Hobby,506 U.S. 103, 114 (1992)).

In the instant case, the defendant first contends that norecovery of fees should be allowed for 76.2 hours of attorneytime spent on the plaintiff's claim before the Maine Human RightsCommission, Opposition at 4, concerning which a finding of noreasonable grounds to believe that discrimination occurred wasmade,4 Motion at 1. In the alternative, the defendantasserts that 50 of the 76.2 hours should be disallowed asexcessive. Opposition at 4 n. 7. It offers no reason or analysisto justify its choice of 50 hours as the appropriate number toexclude, other than a citation to a recommended decision that didnot find 23.6 hours spent in presenting a matter to the Maine Human RightsCommission to be excessive. The recommended decision in that casedoes not even discuss the time spent before the Commissionseparately; it merely lists the 23.6 hours as being included inthe total time for which fees were requested. Johnson v. SpencerPress of Maine, Inc., 2004 WL 1859791 (D. Me. Aug. 19, 2004), at*2-*4. As the plaintiff points out, Plaintiff's Reply Memorandumin Support of Motion for Award of Attorneys' Fees and Costs("Reply") (Docket No. 165) at 5, participation in theadministrative proceedings before the Commission was aprerequisite to recovery of attorney fees under the Maine HumanRights Act, 5 M.R.S.A. § 4622(1). "[I]t is perfectly reasonablefor Plaintiff to include in his petition for attorney's fees thetime spent before the [Maine Human Rights] Commission." Frenchv. Bath Iron Works Corp., 1999 WL 1995216 (D. Me. Nov. 29,1999), at *3 (ADEA case); see also New York Gaslight Club, Inc.v. Carey, 447 U.S. 54, 71 (1980); Nadeau v. Rainbow Rugs,Inc., 675 A.2d 973, 977 (Me. 1996). In the absence of anyspecification by the defendant as to which of the hours recordedby plaintiff's counsel for his work related to the Commissionproceeding were "duplicative, unproductive, excessive, orotherwise unnecessary," Lipsett, 975 F.2d at 937, I recommendthat the fees incurred for work before the Maine Human RightsCommission be included in the award.

The defendant next contends that 80.7 hours should be deductedfrom the attorney fee claim, consisting of the time spent by theplaintiff's attorney in researching the issue of disparate impactage discrimination (10 hours), on which this court grantedsummary judgment to the defendant, and preparing an objection tomy recommended decision on that issue (10.7 hours); and timespent preparing an opposition to the defendant's motion forsummary judgment on all claims (60 hours). Opposition at 4-5. Theplaintiff responds that the disparate impact claims set forth in Counts IIIand IV derived from a common core of facts or related theoriesshared with the disparate treatment claims set forth in Counts Iand II, on which he ultimately prevailed, and that the workassociated with those counts should accordingly not be excludedfrom the fee award. Reply at 5.

If an attorney's work on an unsuccessful claim is unrelated tohis or her work on a successful claim, "work on an unsuccessfulclaim cannot be deemed to have been expended in pursuit of theultimate result achieved." Hensley v. Eckerhart, 461 U.S. 424,435 (1983) (citation and internal quotation marks omitted)."[T]he court's rejection of or failure to reach certain groundsis not a sufficient reason for reducing a fee." Id. AfterHensley, the First Circuit observed that a district court may find that the [successful and unsuccessful] claims are so interrelated, and the time spent in preparation of those claims so overlapping, that an attempt to separate the time attributable to one or the other would be futile. But it does not follow that the district court is prevented from eliminating hours attributable to [unsuccessful] claims where . . . the court reasonably concludes that there is not a complete overlap and separation is proper. Indeed in Hensley itself, where the successful and unsuccessful claims were closely related, the Supreme Court said generally that "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." 461 U.S. at 436-37.Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 7 (1stCir. 1993) (citation omitted; emphasis in original). In thiscase, the claims of disparate impact and disparate treatment arebased on similar legal theories and derive from a common factualcore insofar as the disparate treatment claim is concerned.Additional facts were necessary to support the disparate impactclaims.

The plaintiff argues that the entry of summary judgment againsthim on his disparate impact claims "was not really a `loss' atall" because he was "right" to bring those claims, even in theface of adverse rulings by the First Circuit on point, as demonstrated by theSupreme Court's ruling in Smith v. City of Jackson,125 S.Ct. 1536 (2005). Reply at 5-6. Of course, whether there was a "loss"is not the determining factor; the case law speaks ofunsuccessful claims. A subsequent decision by the Supreme Courtoverturning existing circuit precedent does not render anunsuccessful claim, on which the plaintiff took no appeal,retroactively successful. It is the outcome in the action forwhich the plaintiff seeks to recover attorney fees that isrelevant. I conclude that attorney time clearly spent solely onthe disparate impact claims is not recoverable. That timeincludes all or portions of entries on the time sheets identifiedby the defendant, Opposition at 4-5, nn. 8 & 9, for a total of20.3 hours.5 The defendant seeks in addition a reductionby half of the hours spent preparing the plaintiff's oppositionto its motion for summary judgment. Id. at 5. Considerably lessthan half of the plaintiff's memorandum of law submitted inopposition to the motion for summary judgment was devoted to thedisparate impact claims. Plaintiff's Objection to Defendant'sMotion for Summary Judgment, etc. (Docket No. 13) at 18-25. Thetime sheets record significantly more time devoted to researchand drafting the opposition to the motion for summary judgmentthan was devoted to research on disparate impact. It isimpossible to determine exactly how much of that time was spenton the disparate-treatment claims. Of a total of approximately 96hours, I believe that a reduction of 20 additional hours isjustified. I recommend a total reduction of 40.3 hours torepresent work on the unsuccessful claims.

Vague, Excessive and Duplicative Entries

The defendant asserts that "not less than 10.4 hours" and "asmany as 141.3 hours" should be excluded as "too vague to permitDefendant to determine the reasonableness of the time spent."Opposition at 5. Reimbursement should not be allowed for entries on timesheets which are "gauzy generalities," or which are "so nebulousthat they fail to allow the paying party to dispute the accuracyof the records as well as the reasonableness of the time spent."Lipsett, 975 F.2d at 938. Of the 10.4 hours specificallyidentified by the defendant as presenting unduly vague records,Opposition at 5 n. 10, two are not included in the time sheets(6/22/00 and 2/8/03), and the remainder are sufficientlyspecific, although the entry for 1.3 hours on May 17, 2002("Research; Discovery preparation") comes perilously close tomeeting the Lipsett standard. None of the other entriesidentified by the defendant as unduly vague in part, Oppositionat 5 n. 10, requires disallowance.

Next, the defendant identifies as excessive "approximately 120hours during the summary judgment process," including"approximately 80 hours" preparing an opposition to the motionfor summary judgment. Id. at 6. I have already recommended that40.3 of these hours be excluded from the attorney feeaward.6 Disallowances involved in the two other caseswhich the defendant cites in support of its position, id., arenot readily applied to this case. Judge Brody did say inWilcox, 921 F. Supp. at 846, that 70 hours spent by twoattorneys preparing a response to a motion for summary judgmentwas excessive, but there is no way to tell how many issues wereinvolved in that motion or how complex the issues were. No suchdetail is provided in the recommended decision in Adams onwhich the defendant also relies. I cannot conclude on the showingmade that the remaining hours devoted to the summary judgmentprocess were excessive per se. See generally Johnson, 2004 WL 1859791 at *2 (639.4hours in litigation, including summary judgment motions andtrial, not excessive).

The defendant moves on to challenge as excessive, in conclusoryfashion, "approximately 160 hours preparing for trial," althoughonly one entry, "almost a year before the trial occurred," isspecifically discussed. Opposition at 6. The presentation of thisargument is so undeveloped that the court need not consider it. Ido note that in January 2003 this case was put on a trial listfor March 3, 2003, Docket, making it unlikely that "trialpreparation" in February 2003 was unreasonable merely due to thedate on which it was undertaken.

The defendant's next specific objection is to the devotion of85.7 hours to post-trial motions and 187.8 hours to the appealprocess, contending that "at least 100" of these hours should bedisallowed. Opposition at 7. The plaintiff responds merely thatthe defendant "took the post-trial motions to an entirely newlevel by changing the breadth and focus of its arguments" andthat counsel had to "read?, digest?, and summariz[e] 73 casescited by UTC in preparation for oral argument" on the appeal.Reply at 7. He does not address the defendant's contention thatthe issues raised on appeal were "the same issues raised inDefendant's post-trial motions." Opposition at 7. Ordinarily,issues must be raised at the trial level in order to becognizable on appeal.

The defendant cites only Johnson in support of its positionon this issue. Id. In that case, 113.7 hours were spent indefending an appeal to the First Circuit. 2004 WL 18597971 at *2.My recommended decision in Johnson did not disallow any ofthose hours; it also did not establish 113.7 hours as any kind ofceiling on the hours that could reasonably be invested indefending a trial court judgment on appeal. Id. at *3. However,given the apparent overlap of issues from the post-trial briefingto the appeal, I conclude that some reduction in the hours devoted to the appealis appropriate. In addition, 32.6 hours7 to prepare fororal argument on appeal appears to me to be excessive, even ifall 73 cases cited by the defendant were cited for the first timein connection with the appeal in this case, a highly unlikelyoccurrence. I recommend that these hours (187.8) be reduced byapproximately 20%, for a total reduction of 37.6 hours.8

The defendant also asserts that the 15.3 hours that counselspent on the fee petition is excessive. Opposition at 8. Itcontends that no more than five hours should be allowed and thatthe plaintiff's request to be allowed to supplement his requestwith hours spent on the fee issue after the filing of his motionshould be denied. Id. The plaintiff does not respond to theargument on this issue. In Okot, Judge Carter found four hoursto be a reasonable amount of time for preparation of a feepetition, reducing substantially the 26 hours requested.180 F.Supp.2d at 249. My own review of the time sheets for therelevant period, Butterfield Aff. ¶ 16, shows 15 hours devoted topreparation of the fee petition and accompanying affidavit. Ihave no basis on which to compare this case with Okot, otherthan to note that the jury awarded substantially more damages inthis case. I therefore cannot say whether the cases werecomparable in complexity and effort. Still, I agree that 15 hoursappears excessive for a 10-page motion, accompanied by threeaffidavits, only one of which was prepared by the attorney whosetime is at issue. The 44-page timesheet document undoubtedlyrequired careful review and the plaintiff persuasively describesthe application of billing judgment to that document, Motion at7-8 & Butterfield Aff. ¶ 19, leading me to the conclusion that nomore than five hours would not reasonably represent the necessarytime involved in preparing the motion. On balance, I conclude that 10 hours is a reasonable timefor preparation of the fee petition. I recommend that theplaintiff's request for leave to supplement his application afterthe motion is resolved be granted; significant time may well beinvolved in replying to the opposition to a petition for attorneyfees and such time cannot reasonably be predicted in advance.

Expert Witness Time

The defendant argues that the plaintiff's request for $3,108.50in fees for his expert witness Eric A. Purvis should be reducedbecause the bill submitted by Purvis and attached to theplaintiff's request as the only support for that amount fails tooffer a detailed accounting of the time spent by Purvis on thiscase. Opposition at 8-9. The bill at issue merely states that itis submitted "for professional services rendered." Attachment 3to Butterfield Aff. It does not state an hourly rate or how manyhours Purvis devoted to this case. Like the expert witness'sbills in Wilcox, this bill "lacks anything approaching thespecificity and detail that would allow the Court to engage inserious review." 921 F. Supp. at 849. Despite being put on noticeof this issue by the defendant's opposition, the plaintiff merelyasserts that "Mr. Purvis' invoice . . . describes the work thathe performed in sufficient detail to support an award of the fullamount paid by" the plaintiff. Reply at 8. On the contrary, theinvoice is clearly not sufficient. See, e.g., Johnson, 2004 WL1859791, at *7. On the showing made by the plaintiff, the courtwould be justified in excluding Purvis's entire bill. Thedefendant has only requested a reduction of $2,000 in this cost,however, Opposition at 9, so that is the reduction that Irecommend.9

Conclusion For the foregoing reasons, I recommend that the plaintiff beawarded attorney fees and costs in the amount of $184,126.00,representing reductions of 82.9 hours of Attorney Butterfield'stime, 0.3 hours of paralegal time and $2,000.00 in the Purvisbill. These figures do not include $3,972.78 in costs requestedby the plaintiff, Motion at 10 & Butterfield Aff. ¶¶ 20-21.Requests for reimbursement of such costs shall be determinedpursuant to Local Rule 54.3.

1. The ADEA directs the court to award a reasonable attorneyfee and costs of the action to a prevailing employee.29 U.S.C. §§ 216(b), 626(b) (incorporating § 216(b) by reference). TheMaine Human Rights Act makes the award of attorney fees and coststo a prevailing party discretionary with the court5 M.R.S.A. § 4614.

2. The defendant does not challenge the hourly rates used bycounsel for the plaintiff in calculating the requested fee award.See generally Opposition. The plaintiff does not seek anyupward adjustment in the requested lodestar. Motion at 10.

3. The defendant appears to have listed every instance inwhich an entry in the timesheets for Attorney Butterfieldincludes the words "correspondence," "telephone conference," or"review." Opposition at 3 n. 6.

4. Contrary to the representation of the defendant, Oppositionat 4, the finding of the Maine Human Rights Commission was not"upheld on appeal." There is no evidence that any such appeal wastaken.

5. Two of the entries on the timesheet that record time spenton the disparate impact claims include other matters: a telephoneconference with client and correspondence to an opposingattorney. Timesheet at 2 (12/04/2001) & 9 (9/13/2002). I haveexcluded 2/10 of an hour for each of these activities.

6. The defendant apparently takes the position that any timeincurred in preparation for a response to its motion for summaryjudgment before that motion was actually filed cannot bereimbursed. Opposition at 6. It offers no authority in support ofthis position. In many cases, including this one, it may well bereasonable to anticipate that opposing counsel will file a motionfor summary judgment. The defendant has offered no reason why theopposite conclusion would be more reasonable in this case.

7. See Opposition at 7 n. 16.

8. The defendant also seeks a reduction of "at least 25" hoursof the time spent drafting the appellate brief because AttorneyButterfield's time sheet entries do not specify the issues onwhich he worked. Opposition at 8. The issues included in thebrief are known and the issues on which Attorney Tracy worked areknown. Id. No further detail was required.

9. The defendant does not challenge any of the $1,722.50billed by the plaintiff's other expert witness, Sat Gupta, Ph.D.

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