Evans v. Books-A-Million

Filing 51

MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 10/29/2012. (AHI )

FILED
2012 Oct-29 PM 01:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TONDALAYA EVANS,
Plaintiff,
vs.
BOOKS-A-MILLION,
Defendant.

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Civil Action No. CV-07-S-2172-S

MEMORANDUM OPINION
This is an action in which the plaintiff, Tondalaya Evans, alleged claims against
her former employer, Books-A-Million, under four federal statutes: i.e., the Equal Pay
Act of 1963, 29 U.S.C. § 206(d)(1); Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601
et seq.; and, the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C.
§ 1161 et seq.1 The case originally was assigned to Magistrate Judge John E. Ott
pursuant to 28 U.S.C. § 636(b). Judge Ott subsequently filed a lengthy report in
which he recommended that the defendant’s motion for partial summary judgment be
granted, and that defendant’s motion to strike portions of the declaration submitted by
plaintiff in opposition to summary judgment be granted in part and denied in part.2
1
2

The complaint also contained claims under Alabama law for defamation, libel, and slander.

See doc. nos. 17 (Defendant’s Motion for Partial Summary Judgment), 24 (Defendant’s
Motion to Strike Portions of Plaintiff’s Declaration Submitted in Opposition to Summary Judgment)
and 25 (Magistrate Judge’s Report and Recommendation).

The action then was reassigned to the undersigned judicial officer for all further
proceedings.3
Following consideration of the objections to the Magistrate Judge’s report and
recommendation filed by plaintiff,4 the parties’ briefs and evidentiary submissions,
and an independent review of the entire file, this court entered a memorandum opinion
and order ratifying the Magistrate Judge’s recommendations, and dismissing all of the
plaintiff’s claims, except for her claim based upon the Consolidated Omnibus Budget
Reconciliation Act.5 The case now is ripe for decision following a bench trial on that
claim.
I. INTRODUCTION
The Consolidated Omnibus Budget Reconciliation Act, generally referred to by
the acronym “COBRA,” was enacted by Congress during 1985, but not signed into
law by President Reagan until April 7, 1986.6 Among other things, the Act requires
“qualifying employers” (generally defined as those persons or entities who or which
3

See doc. no. 26 (Order Reassigning Case).

4

See doc. no. 27 (Plaintiff’s Opposition and Objections to Report and Recommendation of
Magistrate Judge).
5

See doc. nos. 29 (Memorandum Opinion) and 30 (Order). Defendant did not move for
summary judgment on plaintiff’s COBRA claim.
6

Although the Act only became law on April 7, 1986, when signed by President Reagan, its
official name is “the Consolidated Omnibus Budget Reconciliation Act of 1985.” See Pub. L.
99-272, 100 Stat. 82. Due to the discrepancy between the official name of the Act and the year in
which it was signed into law, some governmental publications refer to the Act as the Consolidated
Omnibus Budget Reconciliation Act of 1986.

2

employed twenty or more full-time equivalent employees during the previous calendar
year) to offer “qualified employees” (and members of the employee’s immediate
family) the option to continue coverage under the employer’s group health and dental
insurance plans whenever a “qualifying event” causes the employee to lose such
coverage. See 29 U.S.C. § 1161; see also, e.g., Brown v. Neely Truck Line, Inc., 884
F. Supp. 1534, 1539 (M.D. Ala. 1995). Examples of some of the “qualifying events”
listed in the statute include a person’s loss of group health or dental insurance
coverage due to: (1) the death of the covered employee; (2) a divorce or legal
separation of the covered employee that terminates the ex-spouse’s eligibility for
benefits; (3) a dependent child attaining the age at which she or he is no longer
eligible for coverage under the employer’s group plans; or (4), as in the present case,
the voluntary or involuntary termination of a covered employee for any reason other
than “gross misconduct.” See 29 U.S.C. § 1162(2); Brown, 884 F. Supp. at 1539;
Lloynd v. Hanover, 72 F. Supp. 2d 469, 478 (D. Del. 1999).7 COBRA requires that
the continuation coverage offered to the qualified employee extend at least eighteen
months past the date of the “qualifying event.” 29 U.S.C. § 1162(2)(A)(i).

7

Defendant neither argued nor presented evidence that the termination of plaintiff’s
employment was the result of “gross misconduct.” Hence, Tondalaya Evans was a qualified
employee covered under Books-A-Million’s group dental insurance plan, and she thereby was
entitled to receive the notice required by statute.

3

In addition to requiring that the qualified employee be given the option to
extend coverage under the employer’s group health or dental insurance plans for at
least eighteen months past the date of a “qualifying event,” COBRA also mandates
that the employee be given notice of his or her option to do so. See 29 U.S.C. 1166.
The employer must notify the health plan administrator within thirty days of the
“qualifying event” that triggered the termination of the group health or dental
insurance coverage of the employee; and, the health plan administrator must then
notify the employee of his or her option for extended coverage within an additional
fourteen days. See 29 U.S.C. §§ 1166(a)(1)-(2), 1166(a)(4), 1166(c); see also 29
C.F.R. §§ 2590.606-2(b), 2590.606-4(b)(1). When, as here, the defendant-employer
also is the administrator of the group health and dental insurance plans, those two
periods are added together; in other words, the employer/plan administrator is allowed
a total of forty-four days within which to provide notice to the former employee. See
29 C.F.R. § 2590.606-4(b)(2).
If the former employee is not provided the required notice within the time
allowed by statute, he or she is afforded a private right of action. See 29 U.S.C. §
1132(c)(1). Hence, this suit.
II. FINDINGS OF FACT
A.

Plaintiff’s Employment, Termination, and Insurance Coverage
4

Plaintiff, Tondalaya Evans, began work at Books-A-Million (“BAM”) in
November 1997 as a staff accountant, and; she was promoted to the position of Payroll
and Insurance Manager in 2000.8 For reasons that were not directly at issue during
trial, plaintiff’s employment with BAM ended on March 27, 2007.9
BAM offered group health and dental insurance benefits to its employees
through Blue Cross/Blue Shield of Alabama.10 At the time of her termination, plaintiff
was not covered by BAM’s group health insurance plan, but she did maintain dental
insurance coverage under BAM’s group plan.11 She continued to receive dental
coverage through BAM until May 30, 2007: two months after her employment
ended.12 Plaintiff remained unemployed until October 22, 2007, when Bruno’s
Supermarkets, LLC (“Bruno’s”) hired her as a Payroll Supervisor.13 During the nearly
five months that plaintiff was not employed, she did not have dental insurance
8

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶¶ 1-2; see also Trial Tr. 13, 120-21,
Aug. 27, 2012.
9

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶ 10; see also Trial Tr. 121, Aug.
27, 2012. Note that employees who are terminated for “gross misconduct” are not entitled to a
COBRA notice or extension of benefits. See 29 U.S.C. §§ 1163(2), 1166(a)(4)(A). However, at
trial, BAM offered no evidence to suggest that plaintiff’s termination was due to gross misconduct
and, therefore, the exact nature of her termination is not relevant to her right to receive COBRA
notice. Indeed, BAM Vice President Chad Tice admitted that plaintiff was entitled to the notice.
Trial Tr. 43, Aug. 27, 2012.
10

Trial Tr. 9, Aug. 27, 2012.

11

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶ 9; see also Trial Tr. 126-27, Aug.
27, 2012; Pl.’s Trial Ex. 14.
12

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶ 11.

13

Id. at ¶ 12; see also Trial Tr. 128-29, Aug. 27, 2012; Pl.’s Trial Ex. 18.

5

coverage; nevertheless, she did not incur any dental bills during that period.14 Plaintiff
obtained dental insurance coverage that was comparable to her benefits under BAM’s
plan through her employment with Bruno’s on December 1, 2007:15 i.e., eight months
after the end of her employment with BAM, and slightly more than a month after her
employment by Bruno’s.
B.

BAM’s Managerial Structure and COBRA Notification Process
The relevant managerial structure of BAM during 2007 consisted of the

following positions: Vice President of Loss Prevention and Human Resources;
Benefits Manager; and Benefits Coordinator.16

Chad Tice served as the Vice

President of Loss Prevention and Human Resources.17 One of his duties was to
oversee the individual who managed insurance benefits, i.e., the Benefits Manager.
Kathryn Roberts was the Benefits Manager in 2007.18
As Benefits Manager, Ms. Roberts’ primary duty was to supervise the
administration of company benefits, including 401k plans, and group medical, life,

14

Trial Tr. 130, Aug. 27, 2012.

15

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶ 13.

16

See Trial Tr. 6-8, 40-41, 144, Aug. 27, 2012.

17

Id. at 40-41.

18

Id. at 6-8, 41. Ms. Roberts was called to the witness stand as Kathryn King, but her current
name is Kathryn Roberts. See id. at 5-6. The parties and the witnesses use both last names at
various times, but for consistency and simplicity this court will refer to the witness as Ms. Roberts.

6

disability, and dental insurance coverages.19 Two positions reported directly to Ms.
Roberts. One of them was the Benefits Coordinator.20 Starting in March 2007, Ms.
Kerry Law occupied that position.21 As Benefits Coordinator, Ms. Law enrolled
employees in benefit plans, and prepared COBRA notices for persons who left the
employment of BAM.22
BAM’s process for determining those employees who were due to receive
notice of their right to extend group insurance coverages for a period of eighteen
months following the termination of their employment with BAM was unwieldy.
Kerry Law manually cross-referenced three different lists in order to determine those
employees who should be notified of their rights under COBRA. The first list, called
the “blue bar report,” was generated by Blue Cross/Blue Shield.23 The blue bar report
listed the names of BAM’s employees who were covered under the various group
plans insured by Blue Cross/Blue Shield.24 Because the blue bar report “identified
every participant that Blue Cross had [on] their account” — i.e., about 1,500

19

Id. at 6-7.

20

Id. at 7.

21

Id. at 144.

22

Trial Tr. 144, Aug. 27, 2012.

23

Id. at 8, 26, 145.

24

Id. at 10, 145, 154.

7

employees on the medical plan and another 1,600 on the dental plan — it was “quite
cumbersome” and, inevitably, several inches thick.25
The second list, known as a “termination report,”26 listed the name of every
employee who had ceased employment with BAM, voluntarily or involuntarily,
during the previous month.27 Kerry Law personally generated and printed that report
from data maintained on BAM’s computer system.28
The third list, known as the “premium report,”29 identified those employees who
had paid insurance premiums through payroll deductions.30 Apparently, Kerry Law
also generated and printed the premium report from data maintained on BAM’s
computer system, although the testimony was less than clear on that point31
In any event, once all of those documents — the blue bar report, the termination
report, and the premium report — were compiled, it was Kerry Law’s responsibility
to manually cross-reference the names listed on each report, determine the BAM
employees who should receive a COBRA notice, and then type and mail the notices.32

25

Id. at 26-27.

26

See, e.g., id. at 145.

27

Id. at 154-55.

28

Trial Tr. 156, Aug. 27, 2012.

29

See, e.g., id. at 145, 153, 158

30

See id. at 26, 153, 158.

31

See id. at 8, 26.

32

Id. at 8, 11, 26-27, 144-45, 157-58.

8

The inefficient, unwieldy process occurred every month.33 Despite being Ms. Law’s
direct supervisor by virtue of her position as Benefits Manager, Kathryn Roberts
repeatedly confessed that she did not know how BAM maintained records indicating
that an employee had received the COBRA notice required by statute.34
C.

BAM’s Nonexistent COBRA Notice to Plaintiff
Sometime after her termination, plaintiff placed a telephone call to Vice

President Chad Tice and told him that she had not yet received her COBRA notice
(i.e., the paperwork necessary to extend her dental insurance coverage for up to
eighteen months).35 At trial, Kerry Law admitted that she initially failed to send out
a notice to the plaintiff,36 and Vice President Tice admitted that plaintiff was entitled
to receive such a notice.37
BAM employees offered contradictory accounts of what happened after
plaintiff telephoned Vice President Chad Tice. Tice testified that he went directly to
Kerry Law, rather than to Kathyrn Roberts, his immediate subordinate, and told Ms.
Law that plaintiff’s COBRA notice should be mailed as quickly as possible.38 Tice
attributed the fact that plaintiff had not received her statutory COBRA notice to “a
33

Id. at 27.

34

Trial Tr. 11-12, Aug. 27, 2012.

35

Id. at 46-47.

36

Id. at 145, 147-48.

37

Id. at 43.

38

Id. at 47, 82.

9

clerical error from a new employee,”39 i.e., Ms. Law. Tice acknowledged that his staff
was never able to find evidence that any notice was ever mailed to plaintiff, either
before or after her telephone call to him.
In contrast to Vice President Tice’s testimony, Benefits Manager Kathryn
Roberts claimed that Tice approached her after plaintiff’s telephone call, and
instructed her to ensure that plaintiff’s COBRA notice was mailed.40 Ms. Roberts did
not send the notice herself, but instead delegated that task to her subordinate, Benefits
Coordinator Kerry Law.41 Ms. Roberts recognized that the matter was important,
however, because Vice President Tice personally sought her out.42 Nevertheless, and
despite the fact that Kerry Law — one of only two employees supervised by Kathryn
Roberts — was new to the Benefits Coordinator position and not familiar with BAM’s
cumbersome COBRA notification process,43 Kathryn Roberts never followed up on
the matter.44 Her only explanation for not doing so was: “I guess I’m not a
micromanager.”45 Like Vice President Tice, Ms. Roberts was not able to find any

39

Id. at 66.

40

Id. at 23-25.

41

Id. at 23-24.

42

Id. at 38.

43

Id. at 33-36.

44

Id. at 26.

45

Trial Tr. 35, Aug. 27, 2012.

10

evidence establishing that a COBRA notice had been mailed to or received by
plaintiff.46
For her part, Kerry Law initially testified that it was Kathryn Roberts, and not
Vice President Chad Tice, who approached her about plaintiff’s COBRA notice.47
Upon further questioning, however, Ms. Law stated that Tice did approach her about
the issue, but only after Kathryn Roberts had talked to her.48 Ms. Law maintained that
she mailed plaintiff a COBRA notice after being specifically instructed to do so, but
she also admitted that she did not have a clear memory of doing so, nor could she find
the certified mail receipt that should have accompanied the mailing.49 Ms. Law
acknowledged that it was important to keep a copy of the COBRA notice mailed to
former employees like plaintiff, and the accompanying certified mail receipt, but she
did not do so.50 Her explanation for these derelictions and omissions was that she had
only been Benefits Coordinator for a few weeks, and “was new to everything and very
overwhelmed.”51

46

Id. at 12-13, 37-38

47

Id. at 145-47.

48

Id. at 161.

49

Id. at 146-48.

50

Id. at 162.

51

Trial Tr. 148, Aug. 27, 2012.

11

Plaintiff’s uncontroverted testimony established that she never received a
COBRA notice from BAM:52 a fact that is corroborated by BAM’s inability to
produce even a scintilla of evidence that the notice was ever mailed.
Moreover, as this court stated at the conclusion of trial, “there are too many
contradictions and evasions and disingenuous answers” from BAM’s employees “to
credibly conclude that [the company’s failure to mail plaintiff the notice required by
COBRA] was inadvertent.”53
Other facts, not directly relevant to the COBRA notice, also shed light on the
credibility of BAM and its employees. Vice President Tice’s answers at trial were
oftentimes conveniently forgetful or evasive.54 When an issue arose as to whether
plaintiff was entitled to a bonus during the last months of her employment, Tice was
stubbornly unwilling to provide a copy of BAM’s policy stating the prerequisites for
the bonus, despite plaintiff’s repeated requests for a copy.55
52

Id. at 169. Plaintiff explicitly testified: that she never received the notice, whether via
regular or certified mail; that no member of her family ever received the notice; and that she never
refused a letter from BAM. Id. at 125-26.
53

Id. at 171; see also id. at 172 (“I am not impressed with the way that the defendant handled
this situation, which may be the understatement of this year.”).
54

See, e.g., id. at 47-50.

55

Trial Tr. 58-64, Aug. 27, 2012; Pl.’s Trial Ex. 8 (Emails of Mar. 29-30, 2007). At trial,
after being questioned explicitly about the company “policy,” Tice asserted that BAM’s bonus
payment policy is not really a policy, but rather a document that employees signed. Trial Tr. 60-61,
Aug. 27, 2012. One BAM employee noted in an email to Tice that she probably had “the piece of
paper that [Ms. Evans] signed,” Pl.’s Trial Ex. 8 (Email from Sandi Meeks to Chad Tice, Mar. 29,
2007 (07:23 CST)), but Tice said that BAM could not find that document. Trial Tr. 61-62, Aug. 27,
2012.

12

The circumstances surrounding plaintiff’s bonus are especially suspicious,
particularly when contrasted to the situation of Ms. Sandi Meeks, who was BAM’s
Director of Finance in 2007.56 Ms. Meeks’s employment with BAM ended in March
2008,57 approximately a year after that of the plaintiff. Ms. Meeks testified that, in
order to receive a bonus, BAM employees had to be employed on the date the bonus
checks were issued, usually in April.58 Yet, Ms. Meeks received her bonus in 2008,
even though she left her employment with the company in March 2008.59 Compare
that result with plaintiff’s situation.

While the parties agree that plaintiff’s

employment with BAM ended on March 27, 2007,60 internal BAM documents
introduced at trial indicate that her effective date of termination was April 23, 2007.61
Thus, plaintiff’s case for receiving her bonus seems as least as strong as Ms. Meeks’s,
regardless of whether bonus payments were triggered in April (as Ms. Meeks claims)
56

Trial Tr. 83, Aug. 27, 2012.

57

Id. at 83-84.

58

Id. at 91-94. Vice President Tice explained that the bonus payment date, “approximately
March 17th,” is determined by the date that the BAM Audit Committee meets. Id. at 54; see also
Pl.’s Trial Ex. 8. Tice noted that 2007 was a 53-week, rather than a 52-week, fiscal year, and
therefore seven days must be added to the standard, March 17th date, resulting in bonus payments
on “approximately” March 24th. Id. at 54-55. Of course, Ms. Evans was still a BAM employee on
that date (and thus would have been entitled to her bonus); when pressed that point, Tice testified
that the board did not meet until March 29, 2007. Id. at 55. The court found this sequence of dates
to be “strange,” and noted that “[t]here are a series of things that are happening in this case . . . were
it’s just a day or two difference.” Id.
59

Id. at 83, 94.

60

Doc. no. 35 (Statement of Agreed and Disputed Facts) ¶ 10; see also Trial Tr. 121, Aug.

27, 2012.
61

Trial Tr. 100, Aug. 27, 2012; Pl.’s Trial Ex. 11.

13

or in mid- to late-March (as Vice President Tice claims).62 Yet Tice was firm in his
commitment against paying a bonus to plaintiff.63
In sum, the uncontroverted evidence shows that plaintiff never received a
COBRA notice from BAM. The overwhelming weight of the evidence clearly
demonstrates that BAM’s contention that the failure to mail plaintiff a notice was an
“innocent mistake” lacks credibility. The court therefore finds that BAM intentionally
withheld plaintiff’s COBRA notice.
III. CONCLUSIONS OF LAW
BAM’s pre-trial brief,64 as well as Vice President Tice’s testimony at trial (in
which he admitted that plaintiff was entitled to receive a COBRA notice),65 makes
clear that BAM was bound by the notice requirements discussed in Part I of this
opinion. The parties’ post-trial briefs are in agreement on these points: BAM was
both the employer and plan administrator,66 and obligated to provide plaintiff a
COBRA notice within 44 days of her termination. Finally, as discussed in Part II,
supra, there was absolutely no evidence that BAM sent, or that plaintiff received, her

62

See supra note 55.

63

Pl.’s Trial Ex. 8 (Emails between Chad Tice and Tondalaya Evans, Mar. 29-30, 2007).

64

See doc. no. 40 (Defendant’s Trial Brief), at 1-4.

65

Trial Tr. 43, Aug. 27, 2012.

66

Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 3; doc. no. 48 (Defendant’s Post-Trial Brief),
at 1-2; see also Trial Tr. 10-11, Aug. 27, 2012.

14

COBRA notice; instead, this court finds that defendant intentionally withheld that
notice.
A.

Statutory Penalty
Having failed to meet its obligation to provide plaintiff notice of her right to

continue dental insurance coverage (and the forms necessary to do so), BAM is
subject to a statutory penalty. See 29 U.S.C. § 1132(c)(1). The decision to impose the
penalty, as well as “such other relief” as may be deemed proper, is committed to the
discretion of the court. Id. Specifically, the court may fine BAM up to $110 per day
from the date of BAM’s failure or refusal to issue the notice. Id.; 29 C.F.R. §
2572.502c-1. Finding ample justification for the imposition of a statutory penalty,
three issues remain: the date on which the penalty begins to run; the date on which the
penalty ends; and the daily amount of the penalty.
1.

The date on which a penalty begins to run

The parties agree that the penalty period commences on the 45th day after the
qualifying event (plaintiff’s March 27, 2007 termination): i.e., May 11, 2007.67 See
29 U.S.C. §§ 1166(a)(1)-(2), 1166(a)(4), 1166(c); 29 C.F.R. §§ 2590.606-2(b),
2590.606-4(b)(1)-(2).68
67

Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 2-5; doc. no. 48 (Defendant’s Post-Trial Brief),
at 1-2; Doc. no. 50 (Plaintiff’s Post-Trial Reply Brief), at 1 n.1.
68

As discussed in Part I of this opinion, supra, the law afforded BAM a total of forty-four
days to generate and mail a COBRA notice to plaintiff, and every day thereafter triggered the
penalty.

15

2.

The penalty ending date

At first blush, the parties disagree on the ending date of the penalty period.
Plaintiff’s post-trial brief observes that courts have used a variety of end dates to
calculate the penalty: e.g., the date of the court’s judgment; the eighteen-month period
during which COBRA coverage could have continued; the date of the filing of the
plaintiff’s complaint; or some other significant date, such as the date on which a
plaintiff admits that he or she would have discontinued COBRA coverage.69
Ultimately, however, plaintiff proposes an end-date of August 27, 2012: i.e., the date
of trial, which would result in a penalty period of over five years.70
In response, BAM argues that the penalty period should terminate on one of the
followings dates: the date plaintiff filed suit (November 30, 2007);71 or the date on
which plaintiff obtained comparable dental coverage through her employment with
Bruno’s (December 1, 2007); or the conclusion of the eighteen-month period during
which COBRA coverage could have continued (September 27, 2008).72
a.

Plaintiff’s argument regarding the penalty end-date

Notably, plaintiff’s pre-trial list of damages presented a distinctly different
position on the penalty end-date than her post-trial brief. In her pre-trial brief,
69

Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 6-7.

70

Id. at 15.

71

Doc. no. 48 (Defendant’s Post-Trial Brief), at 2-3.

72

Id. at 3-5.

16

plaintiff approvingly and extensively quoted from Rodriguez v. International College
of Business and Technology, Inc., 364 F. Supp. 2d 40 (D. P.R. 2005), as demonstrative
of “the way to calculate the penalty.”73 The pertinent passage from plaintiff’s pre-trial
brief reads as follows:
Statutory penalties are generally calculated from the last date on which
the plan administrator could have sent notice until the end of the
continuation coverage period. See[,] e.g., Lloynd v. Hanover Foods
Corp., 72 F. Supp. 2d 469 (D. Del. 1999). . . . In the case at bar, the
qualifying event occurred on June 18, 2003. From this date [defendant]
had forty-four (44) days to notify [plaintiff] of his right to continue
coverage under the group health plan. See Gonzalez Villanueva v.
Lambert, 339 F. Supp. 2d 351, 358-59 (D.P.R. 2004). Therefore, the
clock began to tick on August 2, 2003 (the forty-fifth day after the
qualifying event) and stopped on December 18, 2004, (eighteen months
after the qualifying event which constitutes the maximum period of the
continuation coverage allowed under COBRA).74
It was only after the conclusion of trial, and after the court orally indicated that
it would rule in plaintiff’s favor, that plaintiff argued that the penalty period terminus
should be the date of trial: an end-date that would more than triple the penalty period
she originally urged upon the court.
i.

Judicial estoppel

The doctrine of judicial estoppel “prevents a party from contradicting previous
declarations made during the same or an earlier proceeding if the change in position
73

Doc. no. 37 (Plaintiff’s Damages List for Trial), at 6.

74

Id. (quoting Rodriguez v. Int’l College of Bus. & Tech., 364 F. Supp. 2d 40, 50 (D. P.R.
2005) (emphases and alternations supplied)); see also 29 U.S.C. § 1162(2)(A)(i)

17

would adversely affect the proceeding or constitute a fraud on the court.” Black’s Law
Dictionary 590-91 (8th ed. 2004). The doctrine is an equitable one vested within the
court’s discretion, and its purpose is to protect the integrity of the judicial process.
New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001); Stephens v. Tolbert, 471 F.3d
1173, 1177 (11th Cir. 2006); Transamerica Leasing v. Institute of London
Underwriters, 430 F.3d 1326, 1335 (11th Cir. 2005). Judicial estoppel accomplishes
its purpose by “prohibiting parties from deliberately changing positions according to
the exigencies of the moment.” New Hampshire, 532 U.S. at 750 (citations omitted);
see also Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010); Burnes
v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002).
“The seminal case in the Eleventh Circuit on the theory of judicial estoppel is
Burns v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11 Cir. 2002).” Robinson, 595 F.3d
at 1273. The Burns court observed that judicial estoppel combats “the calculated
assertion of divergent sworn positions,” and thereby prevents “parties from making
a mockery of justice by inconsistent pleadings.” Burns, 291 F.3d at 1285 (emphasis
supplied). Burns outlined two primary guideposts: first, the allegedly inconsistent
positions must be sworn; and second, such inconsistencies must be shown to have
been calculated to make a mockery of the judicial system. Id.; Robinson, 595 F.3d at
1273. “[T[hese two enumerated factors are not inflexible or exhaustive; rather, courts

18

must always give due consideration to all the circumstances of a particular case when
considering the applicability of this doctrine.” Burns, 291 F.3d at 1286.
Clearly, plaintiff has taken inconsistent positions. Before trial, she argued that
“the way to calculate the penalty” was to stop counting at the end of the eighteenmonth period during which COBRA coverage could have continued. After trial, she
asserted that the penalty ends on the date of trial. Plaintiff’s pre- and post-trial filings
were submitted under Federal Rule of Civil Procedure Rule 11(b), yet both present
their respective, contradictory arguments as controlling. Absent some intervening
authority, the two contradictory positions cannot govern the same issue. Plaintiff
referenced no such intervening authority. Instead, her post-trial brief cited the very
authority (Rodriguez) she had relied upon as authoritative in her pre-trial filing, before
eventually disregarding the Rodriguez methodology in favor of a significantly later
penalty end-date.75
The timing of plaintiff’s inconsistent positions also indicates that her change of
position was an effort to game the judicial system, in order to multiply, by a factor of
roughly three, the amount of her recovery. It would be one thing if plaintiff’s position
had changed before trial, or in light of intervening authority. But that is not the
situation. Here, plaintiff “deliberately chang[ed] positions according to the exigencies

75

Compare doc. no. 37(Plaintiff’s Damages List for Trial), at 6 with doc. no. 43 (Plaintiff’s
Post-Trial Brief), at 6, 15 and doc. no. 50 (Plaintiff’s Post-Trial Reply Brief), at 4-5.

19

of the moment.” New Hampshire, 532 U.S. at 750 (citations omitted); see also
Robinson, 595 F.3d at 1273; Burnes, 291 F.3d at 1285. When, prior to trial, it was
unclear which way the court would decide the COBRA issue, plaintiff argued an
eighteen-month endpoint, which would result in a significant, but reasonable, penalty
period. After the court orally announced at the conclusion of trial its decision in favor
of plaintiff, as well as its displeasure with BAM, plaintiff increased the end-date by
approximately four years. Such conduct should not, and will not, be tolerated by this
court.
b.

BAM’s argument regarding the penalty end-date

As previously noted, BAM offered three possible end-dates in order of
descending preference: the date plaintiff filed suit (November 30, 2007); the date
upon which she obtained comparable dental coverage through her employment with
Bruno’s (December 1, 2007); or the conclusion of the eighteen-month period during
which COBRA coverage could have been continued (September 27, 2008).76
Notably, both parties agree that the eighteen-month period during which
COBRA coverage could have continued provides a permissible cut-off date.
Nevertheless, the court will address the other two dates proposed by BAM.

76

Doc. no. 48 (Defendant’s Post-Trial Brief), at 2-5.

20

BAM relies on Middleton v. The Russell Group, Ltd., 1998 U.S. Dist. LEXIS
6126 (M.D. N.C. 1998), as support for its argument that the date on which plaintiff
filed suit is the most appropriate end-date.77 The justification for the holding in
Middleton was that “it would make little sense to expect or require the giving of
COBRA notice during litigation over [the issue of] whether notice is legally required.”
Middleton, 1998 U.S. Dist. LEXIS 6126 at *27-28 (alternation supplied). BAM
admitted, however, both when it terminated plaintiff and throughout the course of
litigation, that notice was legally required. In that situation, and especially when a
defendant, by its own admission after an internal inquiry, failed to send a notice
initially, it would make perfect sense to expect the giving of COBRA notice during
litigation. This is particularly true when, as here, the litigation is commenced within
the eighteen-month continuation of coverage period. Serving a notice within that
period would afford a plaintiff his or her statutorily guaranteed opportunity to elect
to continue prior coverage, while simultaneously tolling any potential penalties
against the defendant — all at the meager cost of a postage stamp and an envelop.

77

Middleton is an unpublished case from the Middle District of North Carolina and,
therefore, is not binding authority in this circuit. That is also true of the second case BAM cites,
Torres-Negron v. Ramallo Bros. Printing, 203 F. Supp. 2d 120 (D. P.R. 2002). Ramallo also
presented different factual circumstances: the plaintiff in Ramallo received her COBRA notice soon
after filing suit. Ramallo, 203 F. Supp. 2d at 123. In this case, however, plaintiff never received a
COBRA notification, despite acknowledgments from defendant that she was entitled to receive it.

21

Additionally, ending the penalty when a plaintiff files suit would be unwise as
a policy matter. Such a rule provides would-be plaintiffs with a dilatory motive to
withhold a legitimate claim for COBRA notice in order to accrue additional, daily
penalties.
Alternatively, BAM urges the court to set the end-date on December 1, 2007,
when plaintiff received comparable dental coverage through Bruno’s.78 BAM relies
most heavily on Brown v. Neely Truck Line, 884 F. Supp. 1534 (M.D. Ala. 1995)
(DeMent, J.), where the Court stated:
While a defendant may be liable for up to eighteen months following
termination, the court finds that the applicable period to which damages
may be lawfully assessed in the case at bar is fifteen months — the total
of a three month waiting period before [the plaintiff] was accepted into
a plan offered by [the subsequent employer] plus the one-year exclusion
period for [plaintiff’s] pre-existing condition.
Brown, 884 F. Supp. at 1542 (alternations supplied). Brown cited no binding
authority for that conclusion, nor could it: the sentence immediately following the
foregoing quote from Brown, which BAM omitted from its brief, admits that
“[e]stablished law in this Circuit regarding the consequences of failing to render
COBRA notice is virtually non-existent.” Id. In fact, the Brown opinion earlier
observed that there was a dearth of controlling caselaw on COBRA notice issues. Id.
at 1540 (“The court acknowledges that there is not an abundance of law in the
78

Doc. no. 48 (Defendant’s Post-Trial Brief), at 3-4.

22

Eleventh Circuit regarding notice and the consequences of failing to provide actual
notice under COBRA.”) (emphasis in original).
Whatever the merits of Brown’s analysis in 1995, two subsequent Eleventh
Circuit cases have sanctioned the penalty end-date as the conclusion of the eighteenmonth period during which COBRA coverage could have continued. In Wright v.
Hanna Steel Corp., 270 F.3d 1336 (11th Cir. 2001), defendant never presented
plaintiff or his family members with a COBRA notice. Wright, 270 F.3d at 1339. On
appeal, the Eleventh Circuit reviewed whether it was legal error to assess COBRA
penalties “totaling $170.00 per day for a period of 18 months” when those penalties
were composed of “separate penalties for [plaintiff], his wife, and children.” Id. at
1341. While the Court overturned the penalties as to plaintiff’s family because the
penalty provision only applied to a health plan participant (i.e., the plaintiff) and not
members of the participant’s family, the $75 per day penalty that applied to the
plaintiff, including its eighteen-month duration, was left intact. Id. at 1333-34.
A year later, in Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223 (11th Cir.
2002), the Eleventh Circuit considered whether “the district court’s imposition of a
$20 per day penalty for a period of eighteen months was an abuse of discretion.”
Scott, 295 F.3d at 1231. The Court found that it was not. Id. at 1332. Like the
plaintiff here, the plaintiff in Scott never received a COBRA notice. Id. at 1227, 1230-

23

31. Just as importantly, the Court affirmed the eighteen-month penalty period, and did
so despite the fact that the plaintiff had a prior opportunity “to join his wife’s
insurance plan at a lower premium.” Id. at 1231.
BAM views the date on which plaintiff obtained comparable coverage through
her subsequent employment with Bruno’s as the “logical endpoint” because, after that
date, plaintiff “no longer has any need or use for continuation coverage” under
COBRA.79 BAM dismisses plaintiff’s ability to elect COBRA continuation coverage,
even when she could obtain alternative coverage, as merely “theoretical[].”80
However “theoretical” a choice between COBRA continuation coverage and
alternative coverage with a new employer may be, that choice is a Congressionally
mandated one afforded to plaintiff. Consequently, BAM denied plaintiff a legallyentitled choice between two different insurance plans by intentionally failing to
provide the notice required by COBRA.
BAM also argues that any penalty imposed after the effective date of
comparable insurance coverage obtained through subsequent employment would be
a windfall to plaintiff.81 BAM misapprehends the issue. The penalty is “designed
more for punishing the violator than compensating the participant or beneficiary.”

79

Doc. no. 48 (Defendant’s Post-Trial Brief), at 3 n.1.
Id.
81
Id. at 4, 6-8.
80

24

Scott, 295 F.3d at 1232 (citing Sanlin v. Iron Workers District Council of Tennessee
Valley and Vicinity Pension Plan, 716 F. Supp. 571, 574 (N.D. Ala. 1988) (Acker, J.),
aff’d, 884 F.2d 585 (11th Cir. 1989)).82
3.

Conclusions on penalty beginning and ending dates

In summary, the penalty period begins on May 11, 2007: i.e., the forty-fifth day
after the qualifying event (plaintiff’s termination on March 27, 2007). The penalty
period ends on September 27, 2008: i.e., eighteen months after plaintiff’s March 27,
2007 termination. There are 506 days between those two dates.
4.

The daily penalty amount

The maximum daily penalty for failing to provide a COBRA notice to a
qualified employee is specified in 29 C.F.R. § 2575.502c-1 as $110 a day. The
amount of any penalty up to that daily maximum is committed to the discretion of the
district court. See 29 U.S.C. § 1332(c)(1). Plaintiff asks the court to utilize a
staggered method of assessing the daily penalty, increasing the penalty amount at
various benchmarks in the life of this litigation.83 Eventually, plaintiff would increase
the penalty amount to the maximum amount of $110 per day.84 However, plaintiff
82

The term “penalty” is defined as a “[p]unishment imposed on a wrongdoer, usu[ally] in
the form of imprisonment or fine; esp[ecially] a sum of money exacted as punishment for either a
wrong to the state or a civil wrong (as distinguished from compensation for the injured party’s
loss).” Black’s Law Dictionary 1168 (8th ed. 2004); see also Webster’s II New Riverside University
Dictionary 868 (1984) (“1. A punishment established by law or authority for a crime or offense.”).
83

Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 18-19.

84

Id. at 19.

25

entreats the court to impose the maximum daily penalty if the court finds, as it has
done, that the penalty period should not run until the date of trial.85
BAM desires a daily penalty between $40 and $55 dollars, and argues that
plaintiff did not suffer any prejudice as a result of its failure to provide the notice.86
In BAM’s view, “[a]lthough notice might still have been technically required, it would
have served no purpose as she was covered by her new employer’s dental plan.”87 The
court has already highlighted that argument’s flaws in Part III(A)(2)(b), supra.
Additionally, a finding of prejudice is not required. Scott, 395 F.3d at 1232 (citing
Curry v. Contract Fabricators, Inc., 891 F.2d 842, 847 (11th Cir. 1990), abrogated
on other grounds by Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313 (11th
Cir. 2001)).
What incriminates BAM in this case, and justifies the imposition of a greater
penalty, is not prejudice suffered by plaintiff, but rather BAM’s bad faith and
intentional withholding of her COBRA notice. BAM’s own investigations produced
no evidence that it had generated and mailed a COBRA notice to plaintiff, even after
multiple opportunities to correct its error. BAM’s managerial employees consistently
failed to follow up on matters that, by their own admissions at trial, were matters of

85

Doc. no. 50 (Plaintiff’s Post-Trial Reply Brief), at 6.

86

Doc. no. 48 (Defendant’s Post-Trial Brief), at 5-7.

87

Id. at 7.

26

importance. As discussed in the Part II(C), supra, the credibility (or lack thereof) of
BAM’s employees, as well as the suspicious circumstances surrounding plaintiff’s
bonus, lead the court to conclude that BAM intentional withheld plaintiff’s COBRA
notice. The court will impose a daily penalty of $75 in order to appropriately penalize
BAM, as well as deter both it and similarly situated entities from similar conduct in
the future. Because the penalty period consists of 506 days, BAM will be ordered to
pay plaintiff $37,950.
B.

Injunctive Relief
Plaintiff devotes one paragraph in her initial post-trial brief to her request for

injunctive relief. She asks the court to require BAM to file “a detailed description of
its system for providing COBRA notices to qualified beneficiaries for comment by
Plaintiff and review by the Court. Of particular concern is the current practice of not
sending COBRA notices by certified mail.”88
Plaintiff is no longer employed by BAM, however. Therefore, it is unclear why
BAM’s COBRA notification would be of any significance to her in the future.
Moreover, this court has not found an endemic problem with BAM’s current
(or even former) process. The trial focused on the mechanics of plaintiff’s COBRA
notice, and not BAM’s notification process generally. Although BAM’s notification

88

Doc. no. 43 (Plaintiff’s Post-Trial Brief), at 22.

27

process was labor-intensive and unwieldy, BAM later switched to an electronic
system that utilizes Microsoft “Excel” software.89 The new system requires “just a
few steps,” and made the process “a lot easier to deal with and much more
manageable.”90
Furthermore, the materials that COBRA requires need only be transmitted to
qualified employees by means of methods “reasonably calculated to ensure actual
receipt. Material distributed through the mail may be sent by first, second, or thirdclass mail.”

29 C.F.R. § 2520.104b-1(b)(1) (emphasis supplied).

When the

emphasized portion of the preceding regulation is combined with the fact that properly
addressed mail sent through the U.S. Postal Service is presumed delivered, see Hagner
v. United States, 285 U.S. 427, 430 (1932); In re East Coast Brokers, 961 F.2d 1543,
1545 (11th Cir. 1992), the court finds no reason to second guess BAM’s decision to
switch from certified to regular mail. Plaintiff’s request for injunctive relief,
therefore, is due to be denied.
C.

Attorneys’ Fees
The court “in its discretion may allow a reasonable attorney’s fee and costs” to

either party in an action based upon the COBRA statute. See 29 U.S.C. § 1132(g)(1).
Even so, there is no presumption in favor of the imposition of fees and costs. Wright
89

Trial Tr. 32, Aug. 27, 2012.

90

Id. at 33.

28

v. Hanna Steel Corp., 270 F.3d 1336, 1344 (11th Cir. 2001) (citing Freeman v.
Continental Ins. Co., 996 F.2d 1116, 1121 (11th Cir. 1993)).
In evaluating the appropriateness of attorneys’ fees, a court must first determine
whether the fee claimant can demonstrate “some degree of success on the merits.”
Hardt v. Reliance Standard Life Ins. Co., ___ U.S. ___, 130 S. Ct. 2149, 2158 (2010);
see also Cross v. Quality Management Group, LLC, No. 11-15146, 2012 WL
4465227, at *1 (11th Cir. Sept. 27, 2012). If so, a court then must consider the
following factors when deciding whether to award attorneys’ fees: (1) the degree of
the opposing party’s bad faith; (2) the ability of the opposing party to pay the fees; (3)
whether a fee award would deter others; (4) whether the party requesting fees sought
to benefit all participants and beneficiaries under the insurance coverage plan, or to
resolve a significant legal question regarding the statute; (5) and the relative merits of
the parties’ positions.91 Wright, 270 F.3d at 1344-45 (citations omitted). “No one of
these factors is necessarily decisive, and some may not be apropos in a given case, but
together they are the nuclei of concerns that a court should address.” Freeman v.
91

Plaintiff contends that the five factors were rejected by the Supreme Court in Hardt. Doc.
no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 1 n. 1. Specifically, the Court
wrote that “the five factors bear no obvious relation to” the statutory text, and therefore “are not
required for channeling a court’s discretion when awarding fees.” Hardt, 130 S.Ct. at 2158
(emphasis supplied). As the Eleventh Circuit subsequently observed, however, Cross v. Quality
Mgmt. Grp., LLC, No. 11-15146, 2012 WL 4465227, at *1-2 (11th Cir. Sept. 27, 2012), the Court
also noted that it did “not foreclose the possibility that once a claimant has satisfied th[e ‘success
on the merits’] requirement . . . a court may consider the five factors . . . in deciding whether to
award attorney’s fees.” Hardt, 130 S.Ct. at 2158 n.8 (alternation supplied). Cross affirmed that
approach. Cross, 2012 WL 4465227, at *1-2.

29

Continental Ins. Co., 996 F.2d 1116, 1119 (11 Cir. 1993) (quoting Plumbers &
Steamfitters Local No. 150 v. Vertex Constr. Co., Inc., 932 F.2d 1443, 1452 (11th Cir.
1991)). The Eleventh Circuit prefers that a district court analyze each factor. Id.
With regard to the first factor, this court has already found that BAM exhibited
bad faith in refusing to render the COBRA notice. See Parts II(C) and III(A)(4),
supra.
Second, as a large, national company, BAM will be able to satisfy a fee award
against it. BAM has over 1,000 employees.92 Its own website proclaims that it is “the
second largest book retailer in the nation,” and that the company “presently operates
of 250 stores in 31 states and the District of Columbia.”93
Third, attorneys’ fees would deter others from acting in bad faith, and with the
same disregard for COBRA’s requirements as was exhibited in this action by the three
BAM employees identified in Part II(B), supra. For employers of BAM’s size, the
statutory penalty may not alone elicit strict adherence to COBRA’s standards.
However, the prospect of attorneys’ fees, which often exceed the amount of a
plaintiff’s recovery on the merits, is more likely to command the attention of
employers. Indeed, the Eleventh Circuit has recognized the high deterrent value of
attorneys’ fees in cases like this one. See National Companies Health Benefit Plan
92

Trial Tr. 9, Aug. 27, 2012.

93

See http://www.booksamillioninc.com/ (last visited Oct. 16, 2012).

30

v. St. Joseph’s Hospital, Inc., 929 F.2d 1558, 1575 (11th Cir. 1991), abrogated on
other grounds by Geissal v. Moore Medical Corp., 524 U.S. 74 (1998).
The fourth factor does not pertain to this case. Plaintiff requested injunctive
relief regarding BAM’s notification process, but her case focused upon BAM’s
treatment of her, not relief for others. Moreover, the legal framework surrounding her
COBRA claim is relatively straightforward. COBRA required BAM to provide
plaintiff with a notice. BAM did not. Therefore, a penalty may be imposed. There
has been no “significant legal question” regarding the statutes or regulations at issue.
Finally, the fifth factor (consideration of the merits of the parties’ positions)
favors the award of attorneys’ fees, as do the factors when considered in toto.
1.

The lodestar calculation

“In calculating a reasonable attorney’s fee award, the court must multiply the
number of hours reasonably expended on the litigation by the customary fee charged
in the community for similar legal services to reach a sum commonly referred to as
the ‘lodestar.’” Association of Disabled Americans v. Neptune Designs, Inc., 469 F.3d
1357, 1359 (11th Cir. 2006) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983); Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299
(11th Cir. 1988)). The lodestar is a presumptively reasonable fee. City of Burlington
v. Dague, 505 U.S. 557, 562 (1992). The burden of documenting appropriate hours

31

and hourly rates falls on the fee claimant. American Civil Liberties Union of Georgia
v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999); Norman, 836 F.2d at 1303.
However, “[t]he court may then adjust the lodestar to reach a more appropriate
attorney’s fee, based on a variety of factors, including the degree of the plaintiff’s
success in the suit.” Neptune Designs, 469 F.3d at 1359 (citing Hensley, 461 U.S. at
435-36). When a plaintiff achieves only partial or limited success, the usual method
of multiplying the number of hours expended by a reasonable hourly rate may produce
an excessive figure. Farrar v. Hobb, 506 U.S. 103, 114-15 (1992) (citing Hewitt v.
Helms, 482 U.S. 755, 762 (1987); Hensley, 461 U.S. at 436).
Courts also may consider many different factors in assessing the amount of
attorneys’ fees, including: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill required to perform the legal service properly;
(4) the preclusion of employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and length of the professional relationship

32

with the client; and (12) awards in similar cases. Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).94
a.

Reasonable hourly rate

“A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.”

Norman, 836 F.2d at 1299.

The relevant legal

community is “the place where the case is filed,” which in this case is the Northern
District of Alabama. Barnes, 168 F.3d at 437. The applicant for fees bears the burden
of producing satisfactory evidence substantiating the claimed rate, and that burden
may be satisfied by “producing either direct evidence of rates charged under similar
circumstances or opinion evidence of reasonable rates.” Duckworth v. Whisenant, 97
F.3d 1393, 1396 (11th Cir. 1996) (citing Norman, 836 F.2d at 1299)) (emphasis
supplied). The court also is a primary source of expertise on the matter. See Norman,
836 F.2d at 1303. The task of computing reasonable hourly rates is a sensitive one
that is informed by “an analysis of the skills . . . exhibited by the attorney in the case

94

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981. This includes the Johnson decision. In
Hensley, the Supreme Court reformulated the calculus for computing a reasonable fee, but
specifically “acknowledged that district courts may continue to consider the twelve factors outlined
by the former Fifth Circuit in Johnson.” Ass’n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d
1357, 1359 n.1 (11th Cir. 2006) (citing Hensley, 461 U.S. at 434 n.9).

33

at bar,” such as case assessment, expertise in negotiations, organization, knowledge
of trial practice and substantive law, and persuasiveness. Id. at 1301.
The hourly rates requested by plaintiff’s attorneys Alicia Haynes and Charles
Guerrier are $440 and $400, respectively.95 BAM objects to both rates.
i.

Attorney Alicia Haynes

In support of Alicia Haynes’ hourly fee request, plaintiff offers the affidavit of
Ms. Haynes, as well as the declarations of attorneys Larry Mann, Heather Leonard,
and Temple Trueblood.96 The Mann, Leonard, and Trueblood declarations state that
Ms. Haynes’ hourly rate is within the range accepted in this District; and that, in their
opinion, she should be awarded fees at $440 an hour.97
In BAM’s view, these submissions are insufficient to establish the requested
rate, as none of them demonstrate that Ms. Haynes “has actually been paid this rate
in any case in the Northern District of Alabama.”98 The issue, however, is whether the
requested rate is “reasonable,” not whether the attorney actually charged the rate
previously. BAM cites one of Ms. Haynes’ prior cases in this District where she

95

Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 4.

96

See doc. no. 45-1 (Alicia Haynes Aff.); doc. no. 45-6 (Larry Mann Decl.); doc. no. 45-7
(Heather Leonard Decl.); doc. no. 45-8 (Temple Trueblood Decl.).
97

Doc. no. 45-6 ¶¶ 2, 6; doc. no. 45-7 ¶¶ 5, 7, 9; doc. no. 45-8 ¶¶ 4, 6, 8.

98

Doc. no. 47 (Defendant’s Response to Application for Attorneys’ Fees), at 7-8.

34

received a $325 hourly fee.99 The fee in that case, in addition to being six years old,
was reached by the parties’ consent.100 Plaintiff’s reply brief points to a more recent
case from 2010 in which Judge Karon O. Bowdre awarded Ms. Haynes a fee
calculated at a rate of $400 an hour.101 Plaintiff also offers the affidavits of Samuel
Hill and Thomas Campbell in support of that rate.102
BAM attempts to rebut plaintiff’s evidence with the declaration of attorney Jay
St. Clair. That declaration is dated January 6, 2012, and also refers to an attorney,
Kenny Haynes, who, to the court’s knowledge, did not participate in this case.103 Mr.
St. Clair and his law firm primarily practice defense work in employment
discrimination cases.104 Here, however, the issue is the hourly rate for a plaintiff’s
attorney, work that often contains greater risk for the attorney because his or her fees
normally hinge upon the outcome of the suit. Mr. St. Clair states that his firm billed

99

Id. at 8; see doc. no. 47-1 (Order of Sept. 8, 2006 by Judge R. David Proctor in Tucker v.
Housing Auth. of the Birmingham Dist., case no. 2:01-cv-2038-RDP).
100

Doc. no 47-1 (Order of Sept. 8, 2006 by Judge David Proctor in Tucker v. Housing Auth.
of the Birmingham Dist., case no. 2:01-cv-2038-RDP), at 2.
101

Doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 2; see doc. no. 49-1 (Order
of Sept. 28, 2010 by Judge Karon Bowdre in Marks v. U.S. Sec. Assocs., Inc., case no. cv-08-BE0459-S), at 3-6.
102

Doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 2; see doc. no. 49-2 (Samuel
Hill Aff.); doc. no. 49-3 (Thomas Campbell Aff.).
103

Doc. no. 47 (Defendant’s Response to Application for Attorneys’ Fees), at 8; see doc. no.
47-2 (Jay St. Clair Aff.) ¶ 12 (referencing Kenny Haynes).
104

Doc. no. 47-2 ¶ 3; see also doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at

3-4).

35

at a rate of $395 an hour for employment matters in 2011.105 A plaintiff’s attorney,
who takes on greater risk in litigating a case, could reasonably charge a higher rate.
Mr. St. Clair also admits that billing rates increase between $10 and $15 a year.106
When juxtaposed with the rate of $400 an hour that Ms. Haynes attained in 2010, the
requested rate of $44 an hour falls within the range of reasonableness.
Plaintiff’s evidentiary submissions demonstrate that the hourly rate requested
by Ms. Haynes is reasonable, and this court will use a rate of $440 an hour to calculate
her fees.
ii.

Attorney Charles Guerrier

In support of the $400 an hour rate sought by attorney Charles Guerrier,
plaintiff again relies upon the Mann, Leonard, and Trueblood declarations,107 as well
as Mr. Guerrier’s affidavit.108 Jay St. Clair’s declaration does not address Mr.
Guerrier’s rate.109 Instead, BAM observes that Mr. Guerrier is not admitted to practice
in Alabama, and that he did not enter an appearance in this case.110 From this, and

105

Doc. no. 47-2 ¶ 7.

106

Id. ¶ 13.

107

Doc. no. 45-6 ¶¶ 2, 6; doc. no. 45-7 ¶¶ 5, 7, 9; doc. no. 45-8 ¶¶ 4, 6, 8.

108

See generally doc. no. 45-9 (Charles Guerrier Aff.).

109

See generally doc. no. 47-2 (Jay St. Clair Decl.).

110

Doc. no. 47 (Defendant’s Response to Application for Attorneys’ Fees), at 8.

36

without any evidence or submissions, BAM concludes that a reasonable rate for Mr.
Guerrier is $350 per hour.111
Mr. Guerrier has forty years of experience practicing federal employment law
in federal court for either non-profit entities or the EEOC.112 The Mann, Leonard, and
Trueblood declarations opined that Mr. Guerrier’s rate comports with that charged by
attorneys in this District who possess similar experience.113 Thus, the court concludes
that his $400 an hour rate is reasonable, and that rate will be used to calculate the
lodestar in regard to his work.
iii.

Attorney Karen Cleveland, paralegal Jenny Smith, and
the “other paralegals”

The rates of attorney Karen Cleveland, paralegal Jenny Smith, and the “other
paralegals” (i.e., Sarah Powell, Robin Brantley, Mary Dasher, Charlotte Davis, and
Elizabeth Gilliam114) are not contested by BAM.115 Their requested rates are as
follows: Ms. Cleveland, $215 an hour; Ms. Smith, $150 an hour; and the “other

111
112

Id.
See doc. no. 45-9 (Charles Guerrier Aff.) ¶¶ 3-12.

113

Doc. no. 45-6 ¶¶ 2, 6; doc. no. 45-7 ¶¶ 5, 7, 9; doc. no. 45-8 ¶¶ 4, 6, 8.

114

See doc. no. 45-5 (Time Records), at 20-27.

115

See doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 1-2; see generally doc.
no. 47 (Defendant’s Response to Application for Attorneys’ Fees).

37

paralegals,” $100 an hour.116 Those rates are supported by plaintiff’s submissions.117
Accordingly, this court will use those rates in calculating the lodestar.
b.

Reasonable hours

Plaintiff submitted the following hours for individuals who provided her with
legal services: attorney Alicia Haynes, 152.1 hours; attorney Charles Guerrier, 59.5
hours; attorney Karen Cleveland, 2.1 hours; paralegal Jenny Smith, 107.4 hours; and
the “other paralegals,” 9.3 hours.118 Fee applicants must exercise billing judgment by
excluding from their fee applications “excessive, redundant, or otherwise unnecessary
hours,” i.e., “hours that would be unreasonable to bill to a client.” Barnes, 168 F.3d
at 428 (internal citations and quotations omitted). “[W]hen hours are disallowed[,] the
court should identify the hours disallowed and explain why they are disallowed.”
Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). Moreover, just as “the
district court must be reasonably precise in excluding hours thought to be
unreasonable or unnecessary, so should the objections and proof from fee opponents.”
Norman, 836 F.2d at 1301.
The court must differentiate hours billed before the court granted partial
summary judgment in this case from hours billed after that point. Billing records must

116
117
118

Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 4.
Doc. no. 45-6 ¶ 2; doc. no. 45-7 ¶ 5; doc. no. 45-8 ¶ 4.
Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 4.

38

provide enough information to permit an assessment of whether the hours billed were
reasonable. See Oxford Asset Management., Ltd. v. Jaharis, 297 F.3d 1182, 1195-96
(11th Cir. 2002). The only claim that survived summary judgment was plaintiff’s
COBRA claim, whereas before summary judgment several other, unsuccessful claims
were being litigated.119 Evaluating the reasonableness of hours billed subsequent to
summary judgment is an easy task, because those hours dealt only with the COBRA
claim. Conversely, hours billed prior to summary judgment are harder to assess, as
the attorneys’ time records to do not specify which claims were being worked on.120
A “district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for limited success.”
Hensley, 461 U.S. at 436-37. Here, the former tactic is most feasible for the postsummary judgment hours, while the latter approach is preferable for the pre-summary
judgment hours. The court entered its order granting summary judgment on all claims
except the COBRA claim on September 22, 2010.121 That date serves as the line of
demarcation between, on one hand, the hours that the court will review for specific
deletions and, on the other hand, the hours that the court will account for by reducing
the fee award traceable to those hours.

119

See doc. no. 29 (Memorandum Opinion); doc. no. 30 (Order), at 1.

120

See doc. no. 45-2 (Time Records), at 1-6.

121

Doc. no. 30 (Order), at 2.

39

i.

Attorney Alicia Haynes

Alicia Haynes’ post-summary judgment billings are sufficiently detailed as to
allow the court to evaluate their reasonableness. BAM’s only specific objection to
Ms. Haynes’ post-summary judgment billings pertains to the 0.6 hours Ms. Haynes
spent reviewing the court’s order on summary judgment and mediation.122 BAM
argues that this time should not be compensated, because summary judgment
addressed only the six unsuccessful claims.123
Even so, it still was reasonable for Ms. Haynes to review (and bill for
reviewing) the court’s summary judgment order. As the attorney of record for
plaintiff, Ms. Haynes had an obligation to monitor the progress of the litigation. This
is especially true considering that the order instructed the parties to mediate the
remaining COBRA claim. The court will not exclude the 0.6 hours to which BAM
objects.
The court has reviewed the remainder of Ms. Haynes post-summary judgment
hours,124 and it finds that those hours were reasonable. Ms. Haynes billed a total of
86.3 hours post-summary judgment.125 When multiplied with Ms. Haynes $440

122

Doc. no. 47 (Defendant’s Response to Application for Attorneys’ Fees), at 10.

123

Id. at 9-10.

124

Doc. no. 45-2 (Time Records), at 7-10.
See id.

125

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hourly rate, the product is $37,972. That amount is not subject to adjustment, because
it represents hours billed solely for the successful COBRA claim.
The pre-summary judgment hours126 present a much stickier wicket. The fee
claimant should maintain records showing time spent on different claims. Oxford
Asset Mgmt., 297 F.3d at 1196. Unfortunately, Ms. Haynes’ time entries do not
indicate to which claim a particular task related.127 BAM would resolve this difficulty
by reducing the pre-summary judgment hours proportionally: because plaintiff
prevailed on only one of her seven claims in the complaint, her attorneys should
recover only one-seventh of their fees.128 That approach is not correct, because “[i]t
is improper to make the deduction based on a simple ratio of successful issues to
issues raised.” Norman, 836 F.2d at 1302 (citing Hensley, 461 U.S. at 435 n.11;
Popham v. City of Kennasaw, 820 F.2d 1570, 1579 (11th Cir. 1987)).
BAM does make a specific objection to the 0.9 hours Ms. Haynes billed on
April 6, 2010 for reviewing the magistrate judge’s Report and Recommendation.129
BAM objects to that time for the same reasons it opposed the time billed by Ms.
Haynes for reviewing the court’s summary judgment and mediation order.
Accordingly, the court rejects BAM’s argument on the same grounds.
126

See id. at 1-6.
See id.
128
Doc. no. 47 (Defendant’s Response to Application for Attorneys’ Fees), at 9.

127

129

Id. at 10; see doc. no. 45-2 (Time Records), at 6.

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Ms. Haynes billed 65.8 hours for pre-summary judgment work.130 Nothing
about these entries was unreasonable in the overall context of the litigation. Indeed,
Ms. Haynes exercised“billing judgment” by “red-lining” some work that related
directly to the unsuccessful claims on summary judgment.131 When multiplied by her
$440 hourly rate, the lodestar for Ms. Haynes’ pre-summary judgment work is
$29,952. Nevertheless, because the court must account for the fact that some of the
time corresponding to this fee was spent on unsuccessful claims, see Neptune Designs,
469 F.3d at 1359 (citing Hensley, 461 U.S. at 435-36), that portion of the attorneys’
fees award is subject to adjustment in Part III(C)(2)(b), infra.
ii.

Attorney Charles Guerrier

Mr. Guerrier’s hours are not subject to the bifurcation used with Ms. Haynes’
time, as his hours were all billed after summary judgment.132 BAM challenges only
two of his entries: 4.0 hours billed on July 10, 2012 for attendance at the pre-trial
conference, and 7.5 hours billed on August 27, 2012 for trial.133 BAM objects on the
grounds that “the appearance of two attorney at [pretrial] conference . . . was

130

See doc. no. 45-2 (Time Records), at 1-6.

131

E.g., id. at 3, 5-6.

132

See doc. no. 45-3 (Time Records), at 1-3.

133

Doc. no. 47, at 10.

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duplicative,” as was Mr. Guerrier’s presence at trial, where he did not enter an
appearance, question any witnesses, or make arguments to the court.134
The court is not persuaded by BAM’s argument. The concept of a “second
chair,” i.e., the practice of having another attorney assist with trial, is so widely
recognized that it garners treatment in legal dictionaries. See, e.g., Black’s Law
Dictionary 1381 (8th ed. 2004). As his billing records indicate, Mr. Guerrier provided
extensive assistance prior to trial by, for instance, conducting legal research and
drafting briefs.135 It was reasonable, then, for plaintiff to retain his services through
trial in order to assist Ms. Haynes. In fact, Ms. Haynes, conferred with Mr. Guerrier
during trial.136 Morever, given Guerrier’s pre-trial preparation, it was reasonable for
him to accompany Haynes at the pre-trial conference. All of Mr. Guerrier’s billed
hours, then, are reasonable. He billed a total of 59.5 hours. When multiplied by his
$400 hourly rate, his lodestar is $23,800. That amount is not subject to adjustment,
as it pertains only to the successful COBRA claim.
iii.

134
135
136

Attorney Karen Cleveland, paralegal Jenny Smith, and
the “other paralegals”

Id.
Doc. 45-3 (Time Records), at 1-2.
See, e.g., Trial Tr. 23, Aug. 27, 2012.

43

Attorney Karen Cleveland billed 2.1 hours for various pre-trial matters.137
BAM does not contest those hours.138 When multiplied by her rate of $215 an hour,
Ms. Cleveland’s lodestar is $451.50. That amount is not subject to adjustment, as it
pertains only to the successful COBRA claim.
BAM also does not challenge the hours of paralegal Jenny Smith, or the “other
paralegals.”139 Still, to account for time spent on unsuccessful claims, the court must
segregate the pre- and post-summary judgment time billed by those individuals.
After summary judgment, Jenny Smith billed 64 hours at the rate of $150 per
hour.140 Thus, plaintiff is entitled to recover $9,600 for Smith’s time, an amount
which is not subject to adjustment. However, Smith billed 43.4 hours before summary
judgment.141 When multiplied by her hourly rate, the cost of Ms. Smith’s presummary judgment time is $6,510. That amount, however, is subject to adjustment
to account for time worked on unsuccessful claims.
Plaintiff requests fees for 1.45 hours of the other paralegals’ post-summary
judgment time.142 Multiplied by the paralegals’ hourly rate of $100, plaintiff is

137

See doc. no. 45-4 (Time Records), at 1.

138

See doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 1-2; see generally doc.
no. 47 (Defendant’s Response to Application for Attorneys’ Fees).
139
Id.
140
Doc. no. 45-5 (Time Records), at 14-19.
141

Doc. no. 45-5 (Time Records), at 14-19.

142

Doc. no. 45-5 (Time Records), at 26-27.

44

entitled to recover $145, an amount that is not subject to adjustment. That leaves 7.85
hours of pre-summary judgment time,143 at the rate of $100 per hour, for a total of
$785, an amount that is subject to adjustment.
2.

Adjustments to the lodestar amounts

After the lodestar is calculated, a court should adjust the fee to account for the
degree of plaintiff’s success in the suit. Neptune Designs, 469 F.3d at 1359 (citing
Hensley, 461 U.S. at 435-36). Here, in order to account for plaintiff’s “limited
success” on her non-COBRA claims, the court must reduce the fees that correspond
to the time billed before summary judgment. See Hensley, 461 U.S. at 436-37.
a.

Non-adjusted fees

The fees that correspond to time spent solely on the COBRA claim are not
subject to reduction. They are summarized as follows:
!

$37,972 for Ms. Haynes;

!

$23,800 for Mr. Guerrier, which represents all of his billed time;

!

$451.50 for Ms. Cleveland, which represents all of her billed time;

!

$9,600 for Ms. Smith;

!

$145 for the “other paralegals.”

143

See id. at 20-25; see also doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’
Fees), at 4 (claiming 9.3 hours of total time for the “other paralegals”).

45

The sum of these fees is $71,968.50. That amount will be added to the reduced fee
calculated in the subsequent section.
b.

Adjusted fees

The fees that correspond to time billed before summary judgment must be
reduced to account for plaintiff’s limited success. Those fees are as follows:
!

$29,952 for Ms. Haynes;

!

$6,510 for Ms. Smith;

!

$785 for the “other paralegals.”

Although plaintiff prevailed on only one of her seven claims, the court will not reduce
the fees to one-seventh of the above amounts. See Norman, 836 F.2d at 1302 (citing
Hensley, 461 U.S. at 435 n.11; Popham v. City of Kennasaw, 820 F.2d 1570, 1579
(11th Cir. 1987)). Still, plaintiff’s success rate is relevant to the court’s analysis.
Plaintiff’s complaint contained the following claims: (1) Title VII gender
discrimination and retaliation; (2) COBRA and ERISA violations; (3) Family and
Medical Leave Act violations; (4) Equal Pay Act violations; (5) retaliation; (6)
defamation; and, (7) libel and slander.144

Some of these claims, namely the

defamation, libel, and slander counts, have no factual or legal commonality with the
COBRA claim.

144

Others, such as the two retaliation claims, justified factual

Doc. no. 1 (Complaint), at 6-14.

46

investigation and discovery that overlapped with the COBRA issue. Moreover, as
plaintiff points out, discovery was needed to rebut BAM’s assertion earlier in the
litigation that plaintiff was fired for misconduct. Otherwise, had that allegation been
proven, it would have disqualified plaintiff from receiving COBRA coverage.145
Considering all the relevant factors, the court finds that a two-thirds reduction
in the pre-summary judgment fees is equitable. This reduction strikes the appropriate
balance between, on one hand, the work that was necessary to litigate the COBRA
claim — including discovery to see if the failure to provide the COBRA notice was
part of BAM’s alleged retaliation — and, on the other hand, the fact that several
claims were unrelated to the COBRA claim. The adjusted fees are as follows:
!

$9,984 for Ms. Haynes;

!

$2,170 for Ms. Smith;

!

$261.67 for the “other paralegals.”

The sum of these fees is $12,415.67. When added to the non-adjusted fee of
$71,968.50, the total attorneys’ fee claimed by plaintiff’s counsel is $84,385.17.
c.

Adjustment for counsel’s attempt to “game the system”

Part III(A)(2)(a)(i) of this opinion, supra, discussed the doctrine of judicial
estoppel, one of the primary purposes of which is that of deterring “parties from
145

See doc. no 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 10-11 (citing Trial Tr.
41-42, 76-77).

47

making a mockery of justice by inconsistent pleadings.” Burns v. Pemco Aeroplex,
Inc., 291 F.3d 1282, 1285 (11th Cir. 2002). The reason for addressing that doctrine
was plaintiff’s clearly inconsistent positions regarding the date on which a statutory
penalty should end. As noted in that Part, before trial plaintiff argued that, under the
applicable law, “the way to calculate the penalty” was to stop counting at the end of
the 18-month continuation coverage period.146 After trial, however, and after this
court orally announced its intention to rule in favor of plaintiff, her attorneys argued
for the first time that the terminus date for calculating a statutory penalty should be
the date of trial: an end-date that would more than triple the penalty period originally
urged upon the court. Both of plaintiff’s pre- and post-trial arguments were submitted
under Federal Rule of Civil Procedure Rule 11(b); yet, there was no intervening
change in controlling legal principles. Thus, this court concluded that plaintiff’s
inconsistent positions amounted to nothing more than an effort to game the judicial
system: that is, this court concluded that plaintiff’s attorneys
“deliberately chang[ed] positions according to the exigencies of the
moment.” New Hampshire, 532 U.S. at 750 (citations omitted); see also
Robinson, 595 F.3d at 1273; Burnes, 291 F.3d at 1285. When, prior to
trial, it was unclear which way the court would decide the COBRA issue,
plaintiff argued an eighteen-month endpoint, which would result in a
significant, but reasonable, penalty period. After the court orally
announced at the conclusion of trial its decision in favor of plaintiff, as
well as its displeasure with BAM, plaintiff increased the end-date by
146

Doc. no 37 (Plaintiff’s Damages List for Trial), at 6.

48

approximately four years. Such conduct should not, and will not, be
tolerated by this court.147
Accordingly, the total attorneys’ fee that, otherwise, would be awarded to
plaintiff’s counsel ($84,385.17) will be reduced by half, to the amount of $42,192.58,
as a Rule 11 sanction.
D.

Other Costs and Expenses
Plaintiff seeks various other costs and expenses.148 BAM has not challenged

plaintiff’s request.149 Costs, other than attorneys’ fees, “should be allowed to the
prevailing party,” unless otherwise provided by statute. Fed. R. Civ. P. 54(d)(1).
Thus, there is a presumption in favor of awarding costs. Arcadian Fertilizer, L.P. v.
MPW Indus. Servs., Inc., 249 F.3d 1293, 1296 (11 Cir. 2001). Nevertheless, Rule
54(d) does not permit unfettered discretion to tax costs. See Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987); Farmer v. Arabian Am. Oil Co., 379
U.S. 227, 235 (1964); EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000).
Instead, this action is governed by 28 U.S.C. § 1920, which enumerates the costs
plaintiff may recover. See 28 U.S.C. § 1920(1)-(6); Crawford Fitting, 482 U.S. at

147

Part III(A)(2)(a)(i), supra (emphasis added).

148

Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 2, 4-5.

149

See doc. no. 49 (Plaintiff’s Reply Regarding Attorneys’ Fees), at 1-2; see generally doc.
no. 47 (Defendant’s Response to Application for Attorneys’ Fees).

49

445; Scelta v. Delicatessen Support Servs., Inc., 203 F. Supp. 2d 1328, 1339 (M.D.
Fla. 2002).
All of the costs that plaintiff lists in a chart entitled “Costs Recoverable Under
28 U.S.C. § 1920”150 are, in fact, recoverable. Filing fees are recoverable under §
1920(1), trial transcript costs are recoverable under § 1920(2), witness fees are
recoverable under § 1920(3), and specific copying costs are recoverable under §
1920(4). The sum of these costs is $2,860.87.
The costs that plaintiff lists in her chart of “Miscellaneous Expenses Includable
As Attorney’s Fees” are different.151 That chart contains six categories: postage;
general copying; subpoena service fee; mileage; computerized legal research; and
mediation expenses.152 No monetary entry is made for “general copying” because, as
plaintiff admits in a footnote, the Eleventh Circuit has ruled that general copying costs
are not recoverable under § 1920.153 In fact, only one of the categories listed by
plaintiff is found within § 1920. The other categories have been specifically excluded
by opinions from courts in this circuit, including the very case which plaintiff cites

150

Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 5.

151

Id. at 4.
Id.
153
Doc. no. 46 (Plaintiff’s Memorandum in Support of Attorneys’ Fees), at 4 n.2 (citing
Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996)).
152

50

regarding “general copying.” Those “miscellaneous expenses” should be analyzed
under § 1920, otherwise plaintiff could circumvent § 1920.
Neither postage nor computerized legal research costs are recoverable under §
1920. Duckworth, 97 F.3d at 1399; Scelta, 203 F. Supp. 2d at 1339. Mileage is also
not recoverable, Scelta, 203 F. Supp. 2d at 1339 (citing Tang How v. Edward J
Gerrits, Inc., 756 F. Supp. 1540, 1546 (S.D. Fla. 1991), aff’d 961 F.2d 174, 180 (11th
Cir. 1992)), and neither are mediation expenses. Id. at 1399; George v. GTE
Directories Corp., 114 F. Supp. 2d 1281, 1300 (M.D. Fla. 2000) (rejecting claimant’s
application for mediation expenses as “various other miscellaneous costs for expenses
not enumerated within 28 U.S.C. § 1920”). Of the costs in the “miscellaneous
expenses” chart, the only one taxable to BAM under § 1920 is the $50 subpoena
service fee. 28 U.S.C. § 1920(1); see Tang How, 756 F. Supp. at 1546, aff’d 961 F.2d
174, 180 (11th Cir. 1992); Am. United Life Ins. v. Am. United Ins., 731 F. Supp. 480,
489 (S.D. Fla. 1990). After adding that amount to her other legitimate costs, plaintiff
is entitled to reimbursement by BAM for costs in the amount of $2,910.87.
IV. CONCLUSION
For the reasons stated herein, the court finds in favor of plaintiff on her COBRA
claim, and also awards plaintiff attorneys’ fees and other costs. Plaintiff will be
entitled to recover $37,950 as a statutory penalty, $42,192.58 for attorneys’ fees, and

51

$2,910.87 for costs. The aggregate of the foregoing amounts is $83,063.45. An
appropriate final judgment will be entered contemporaneously herewith.
DONE this 29th day of October, 2012.

______________________________
United States District Judge

52