Joyce v. Town of Dennis et al
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, 1) plaintiff's petition for reasonable attorney's fees and costs (Docket No. 90 ) is ALLOWED, in part, and DENIED, in part. The Court aw ards attorney's fees in the amount of $30,000 and costs of $4,600; 2) plaintiff's petition for injunctive relief (Docket No. 91 ) is DENIED without prejudice; and 3) plaintiff's motion to alter the judgment to add prejudgment interest (Docket No. 95 ) is ALLOWED, the amount to be calculated by the Clerk." (Duong, Diep)
United States District Court
District of Massachusetts
Civil Action No.
TOWN OF DENNIS, DENNIS PINES
GOLF COURSE, DENNIS HIGHLANDS,
ROBERT CANEVAZZI, MICHAEL
CUMMINGS, DENNIS PENNER and
MEMORANDUM & ORDER
Plaintiff Elaine Joyce (“Joyce”) brought suit against the
Town of Dennis, two Town-owned golf courses and several
individual defendants for gender discrimination.
arose out of the defendants’ refusal to allow Joyce to play in a
men’s members-only tournament at Dennis Pines Golf Course in May,
In March, 2010, this Court entered a Memorandum & Order
(“M&O”) finding liability on six of Joyce’s eleven counts and
dismissing the other five counts.
Joyce v. Town of Dennis, 705
F. Supp. 2d 74 (D. Mass. 2010).
In January, 2011, the Court entered a second M&O holding
that, although Joyce was entitled to some attorney’s fees as a
prevailing party, she was not entitled to any punitive damages
and the fees to be awarded would be directly related to the
compensatory damages awarded by the jury.
Joyce v. Town of
Dennis, Civ. A. No. 08-10277, 2011 WL 31195, at *2 (D. Mass. Jan.
In February, 2011, defendants offered Joyce in
settlement $35,001, inclusive of attorney’s fees but plaintiff
did not respond to that offer.
Thereafter, a jury trial was held
in March, 2011 and the jury awarded Joyce $15,000 in compensatory
Joyce now petitions the Court for 1) an award of her
attorney’s fees and costs in the amount of over $170,000, 2) an
injunction and 3) an alteration of the judgment to include prejudgment interest.
Plaintiff’s Petition for Award of Attorney’s Fees and Costs
Joyce seeks reimbursement for $167,855 in legal services and
$4,993 in expenses.
The Town challenges the requested fees and
costs on the grounds that they are unreasonable and excessive.
Entitlement to Fees and Costs
Although plaintiff prevailed on both her state and federal
discrimination claims, she petitions for fees under the
Massachusetts statute only.
Under the pertinent Massachusetts
statutory law, if the court finds in favor of the petitioner, it
award the petitioner reasonable attorney’s fees and costs
unless special circumstances would render such an award
Mass. Gen. Laws ch. 151B, § 9.
Because the Court has ruled in
Joyce’s favor on six of her claims, she is entitled to reasonable
attorney’s fees with respect to her successful claims.
2011 WL 31195, at *2.
Defendants contend that special circumstances render an
award of fees unjust in this case because Joyce 1) gave the
defendants insufficient notice of her desire to play in the
subject tournament, 2) refused to attend Golf Advisory Committee
meetings at which her complaints were addressed, 3) did not
return defense counsel’s phone calls and 4) did not respond to
the Town’s settlement offer in February, 2011.
The Court finds
defendants’ arguments compelling but, nevertheless, concludes
that Joyce is entitled to modest attorney’s fees.
Court will award the plaintiff attorney’s fees and costs that are
commensurate with the results she obtained and mitigated by the
factors present in this case.
Assessing a Reasonable Attorney’s Fees Award
The amount of reasonable attorney’s fees awarded on the
basis of Mass. Gen. Laws ch. 151B, § 9 “is largely discretionary
with the judge, who is in the best position to determine how much
time was reasonably spent on a case, and the fair value of the
890 (Mass. 1993).
Fontaine v. Ebtec Corp., 613 N.E.2d 881,
The basic measure of reasonable attorney’s
fees is a “fair market rate for time reasonably spent preparing
and litigating a case”.
Id. at 891.
The First Circuit has adopted the two-step lodestar method
for calculating a reasonable fee.
39, 43 (D. Mass. 1986).
Rogers v. Motta, 655 F. Supp.
First, the lodestar figure is calculated
by multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate.
461 U.S. 424, 433 (1983).
Hensley v. Eckerhart,
Second, the Court may adjust the
lodestar up or down “to account for exceptional circumstances.”
Rogers, 655 F. Supp. at 43.
The burden of proving the
reasonableness of the requested fees to be awarded falls upon the
Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
In determining what is reasonable and whether there are
exceptional circumstances, this Court considers factors such as
1) the nature of the case and issues presented, 2) the time and
labor required, 3) the amount of damages involved, 4) the result
obtained, 5) the experience, reputation and ability of the
attorney, and 6) the usual price charged for similar services by
other attorneys in the same area.
Fontaine, 613 N.E.2d at 891
(citing Linthicum v. Archambault, 398 N.E.2d 482 (Mass. 1979)).
Degree of Success
The “most critical factor” in determining the reasonableness
of a fee is the degree of success obtained.
Farrar v. Hobby, 506
U.S. 103, 114 (1992) (holding that the district court erred in
its attorney’s fees analysis because it failed to consider the
“relationship between the extent of success and the amount of the
In Hensley v. Eckerhart, the United States
Supreme Court held:
When an adjustment is requested on the basis of either
the exceptional or limited nature of the relief obtained
by the plaintiff, the district court should make clear
that it has considered the relationship between the
amount of the fee awarded and the results obtained.
461 U.S. at 437.
The Court is not required to analyze every factor in
awarding reasonable attorney’s fees and, in fact, has the
discretion to reduce the fee award significantly where it is
disproportionate to the result obtained.
Farrar, 506 U.S. at 115
(“Having considered the amount and nature of damages awarded, the
court may lawfully award low fees or no fees without reciting the
12 factors bearing on reasonableness or multiplying ‘the number
of hours reasonably expended . . . by a reasonable hourly
rate[.]’” (quoting Hensley, 461 U.S. at 430, 433)); Hensley, 461
U.S. at 436 (“There is no precise rule or formula for making
The district court may attempt to identify
specific hours that should be eliminated, or it may simply reduce
Although Farrar dealt with the recovery of fees under
federal law only, “[b]ecause State and Federal antidiscrimination
laws prohibit similar conduct, attorney’s fees available in both
fora should, for the most part, be calculated in a similar
manner.” Fontaine, 613 N.E.2d at 891.
the award to account for the limited success.”); Coutin v. Young
& Rubicam Puerto Rico, Inc., 124 F.3d 331, 340 (1st Cir. 1997)
(“while a judge may not automatically reduce a fee award in
proportion to a judgment that is significantly less than the
plaintiff sought, the judge can take that small judgment into
reasonable account in massaging the lodestar.”).
Massachusetts courts have followed the federal courts and
likewise held that it is appropriate for the court to reduce fees
to an amount that is proportionate to the results obtained and
interests at stake in the litigation:
[W]hen a fee request appears on its face [to be]
dramatically disproportionate to the results the
litigation produced, as it does here, the judge must
focus with precision on the relationship between the time
invested and the results achieved in order to insure that
the “time spent was [not] wholly disproportionate to the
interests at stake.”
Killeen v. Westban Hotel Venture, LP., 872 N.E.2d 731, 738 (Mass.
App. Ct. 2007) (quoting Stratos v. Dep’t of Pub. Welfare, 439
N.E.2d 778, 786 (Mass. 1982)) (holding that the trial court
should have considered whether the amount of time spent on the
case was reasonable in light of the results obtained and
remanding for further proceedings).
The court is “not required
to review and allow or disallow each individual item in the
bill,” but can consider the bill as a whole.
Berman v. Linnane,
748 N.E.2d 466, 469 (Mass. 2001).
In Coutin v. Young & Rubicam Puerto Rico, Inc., the First
Circuit articulated the kinds of results that must be factored
into the amount of attorney’s fees to be awarded: 1) plaintiff’s
success claim by claim, 2) the relief actually achieved and
3) the societal importance of the right which has been
124 F.3d at 338.
With respect to this case, the Court reiterates that Joyce’s
accomplishment in this lawsuit “was very limited and pyrrhic in
Joyce, 2011 WL 31195, at *2.
The results of the
lawsuit were minimal because 1) the Town changed the subject
tournament policy for the following year before Joyce filed her
complaint in this case and 2) this Court limited its summary
judgment ruling to this case only.
In accordance with the
substantial body of case law cited herein, the award of
attorney’s fees here will be correspondingly circumscribed by the
jury award of damages.
The benefit of the litigation to the public interest is also
a relevant consideration.
N.E.2d at 786.
Coutin, 124 F.3d at 338; Stratos, 439
Where the case resulted in a “significant legal
conclusion serving an important public purpose, the fee award
need not be proportionate to the damages recovered.”
872 N.E. 2d at 738 (quoting Diaz-Rivera v. Rivera-Rodriguez, 377
F.3d 119, 125 (1st Cir. 2004)).
Conversely, where a case did not
effect any such public benefit (as is the case here) it is
appropriate for the fee award to be proportionate to the damages
Given the limited effect that this lawsuit had on
defendants’ tournament policy and the fact that it could have
easily been avoided or resolved well before trial, the Court
concludes that the requested fee of more than ten times the jury
award is excessive and unreasonable.
Reasonableness of Counsel’s Conduct
In determining the award of reasonable fees, the Court also
focuses on the reasonableness of counsel’s conduct in pursuing a
See Kherlop v. Domos, No. 08–3342, 2011 WL 1532112, at *6
(Mass. Super. Jan. 24, 2011) (“Where counsel has reasonably
valued the case as having greater potential than the result
actually achieved, it is reasonable for her ‘to have expended
effort in the litigation commensurate with that potential.’”
(quoting Twin Fires Inv., LLC v. Morgan Stanley Dean Witter &
Co., 837 N.E.2d 1121 (Mass. 2005))).
In Kherlop v. Domos, for
example, a Massachusetts Superior Court found that counsel’s
conduct, in pursuing plaintiff’s claims to trial, was reasonable
because the entire dispute was realistically worth $320,000 even
though the jury awarded only $15,000 in damages.
In this case, however, unlike in Kherlop, the Court finds
the conduct of plaintiff’s counsel unreasonable.
First, as noted
above, defendants changed their tournament policy before Joyce
filed her complaint, fundamentally changing the nature of Joyce’s
grievance from one of vindicating the deprivation of a civil
right to compensating for her personal affront and expenses.
Second, the Court held in March, 2010 that defendants had
violated federal and Massachusetts law and they, thereafter,
offered Joyce $35,001 in settlement to which offer she did not
That offer obviated the need for a jury trial which
alone accounted for 60 hours billed by plaintiff’s counsel.
The Court also finds that defendant’s settlement offer was
reasonable in light of awards for emotional distress in similar
cases and the fact that the Court admonished plaintiff in its
January, 2011 M&O that any award of attorney’s fees would be
proportionate to her recovery at trial.
The award of $15,000 is
well-within the appropriate range for emotional distress damages
for single incidents of discrimination.
See, e.g., Augis Corp.
v. Mass. Comm’n Against Discrimination, 914 N.E.2d 916 (Mass.
App. Ct. 2009) (upholding a $10,000 damages award for emotional
distress for a single incident of employment discrimination).
Similarly, in a number of cases where the only evidence of
emotional distress was plaintiff’s own testimony, courts have
held that jury awards were excessive.
See, e.g., Boston Pub.
Health Comm’n v. Mass. Comm’n Against Discrimination, 854 N.E.2d
111, 119 (Mass. App. Ct. 2006); Trivedi v. Cooper, No. 95 CIV.
2075, 1996 WL 724743, at *10 (S.D.N.Y. Dec. 17, 1996).
Court finds that the refusal by plaintiff’s counsel to accept the
settlement offer was unreasonable.
Furthermore, although Fed. R. Civ. P. 68 does not
technically apply here because of plaintiff’s alleged costs, the
principle of that rule is instructive.
Rule 68 provides that,
where there has been a settlement offer,
If the judgment that the offeree finally obtains is not
more favorable than the unaccepted offer, the offeree
must pay the costs incurred after the offer was made.
Fed. R. Civ. P. 68(d).
Rule 68 is intended to promote settlement
and avoid the expense of trial, if possible.
See Delta Air
Lines, Inc. v. August, 450 U.S. 346, 352 (1981).
be reasonable for the Court to award Joyce no costs or fees
incurred after February 4, 2011 because defendants’ settlement
offer was reasonable.2
Nevertheless, the Court recognizes that defendants were not
blameless here either.
They opposed the summary judgment motion
and did not offer any formal settlement until February, 2011.
Thus, the Court finds that a fair and reasonable solution is to
reduce plaintiff’s requested fee award substantially, taking into
account not only the limited results obtained but also the fact
that the plaintiff was largely responsible for the unnecessary
protraction of this litigation.
For the reasons already
After February 1, 2011, plaintiff’s counsel invoiced
$48,254 in attorney’s fees.
elucidated, the Court finds that the number of hours spent and
the costs incurred by plaintiff’s counsel were wholly
unreasonable given the interests at stake and the benefit gained.
The Court finds that the number of hours plaintiff’s counsel
spent on this case was excessive and that a significant reduction
in the requested award of fees is warranted.
This case involved
a relatively simple and straightforward fact pattern and
plaintiff’s claims were based on an uncomplicated legal theory.
See Berman, 748 N.E.2d at 468-69 (judgment was for $71,000 and
court reduced the requested attorney’s fees and costs from
$348,252 and $12,968, respectively, to $95,000 and $553,
respectively, because “the legal issues were relatively
straightforward, and . . . much of the work performed was
repetitive and unnecessary”).
For example, plaintiff’s counsel spent about 55 hours on its
summary judgment motion, 70 hours on the opposition to
defendants’ summary judgment motion, 28 hours on the petitions
for attorney’s fees and injunctive relief, 36 hours on
conferencing amongst the attorneys and with Joyce and
approximately 30 hours apiece for two experienced trial attorneys
to attend the entire trial.
The time spent on each of the
enumerated categories was excessive under the circumstances.
Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837, 847 (D. Me.
In fact, it appears that plaintiff’s counsel paid little
attention to the number of hours accrued and costs incurred,
presumably under the assumption that plaintiff would be
reimbursed in full by the defendants.
Moreover, the Court
suspects that a significant portion of the hours enumerated
relate to the bickering between counsel over media coverage of
In light of all of the reasons explicated above, the Court
finds that a reasonable award of attorney’s fees in this case is
The Court will also award costs in the amount of $4,600
which deletes from plaintiff’s request $164 of costs incurred
after February 4, 2011, and certain parking, taxi, meal and
“stenographic overtime” costs deemed not compensable.
will not be required to shoulder the entire burden of engaging in
To do so in this case would encourage
similarly situated plaintiffs to refuse all reasonable settlement
offers and proceed to trial instead.
In this case, especially,
there are abundant reasons for substantially reducing the
requested fees and expenses.
III. Plaintiff’s Petition for Injunctive Relief
Plaintiff moves for an injunction ordering the defendants,
inter alia, to issue a directive announcing a gender-neutral
policy to club members.
Plaintiff did not request such specific
relief in her complaint which sought only an Order enjoining the
defendants from discriminating on the basis of gender.
is satisfied that defendants have gotten the message but to the
extent that the plaintiff, or any other party, demonstrates the
contrary in the future, appropriate and significant sanctions
will be imposed.
Plaintiff’s Motion to Amend the Judgment to Include
Plaintiff moves, pursuant to Fed. R. Civ. P. 59(e) and Mass.
Gen. Laws ch. 231, § 6B, for an amendment to the judgment to
include pre-judgment interest at a rate of 12%.
not oppose the motion.
Plaintiff has correctly stated the law
and the Court will allow the motion.
The interest will, however,
be applied to the amount of the judgment and costs entered, not
to the amount requested.
In accordance with the foregoing,
plaintiff’s petition for reasonable attorney’s fees and
costs (Docket No. 90) is ALLOWED, in part, and DENIED,
in part. The Court awards attorney’s fees in the
amount of $30,000 and costs of $4,600;
plaintiff’s petition for injunctive relief (Docket No.
91) is DENIED without prejudice; and
plaintiff’s motion to alter the judgment to add
prejudgment interest (Docket No. 95) is ALLOWED, the
amount to be calculated by the Clerk.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 30, 2011