Ash, et al v. Tyson Foods, Inc, et al
MEMORANDUM OPINION AND ORDER - The Eleventh Circuits mandate ordered entry of judgment for attorneys fees of $382,403.25 and costs of $56,019.84 with the reasonable attorneys fees and costs of that appeal added to the total. (Doc. 48 1-1 at 6). Accordingly, Tyson Foods, Inc. is ORDERED to pay attorneys fees of $492,183.13 and costs of $59,533.59, totaling $551,716.72. These fees and costs shall be paid to Hithons counsel, Alicia Haynes, for further disbursement. Signed by Magistrate Judge John H England, III on 12/17/2015. (KEK)
2015 Dec-17 PM 04:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TYSON FOODS, INC.,
Case Number: 4:96-cv-03257-JHE
MEMORANDUM OPINION AND ORDER1
On April 10, 2015, John Hithon (“Hithon”) filed his application for attorneys’ fees on
appeal, along with supporting evidence and affidavits. (Doc. 490). Defendant Tyson Foods, Inc.
(“Tyson”) responded with objections. (Doc. 492). Hithon replied, along with a motion to strike
the attorney affidavits attached to Tyson’s response. (Docs. 494 & 495). The motion to strike
was subsequently briefed. (Docs. 497 & 499). For the following reasons, Hithon’s motion to
strike is DENIED, and his application for attorneys’ fees is GRANTED as set out below. 2
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings. (Doc. 53).
Hithon has also moved for an evidentiary hearing and oral argument. (Doc. 498).
However, that motion does not state any reason either is necessary, (id. at 1), and, as Tyson does
not dispute the “historical facts” in evidence and the issues are extensively briefed, the Court
does not see any need for a hearing or oral argument. See Hensley v. Eckerhart, 461 U.S. 424,
437 (1983) (“A request for attorney’s fees should not result in a second major litigation.”);
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303-04 (11th Cir. 1988)
(“Where documentation is inadequate, the district court is not relieved of its obligation to award
a reasonable fee, but the district court traditionally has had the power to make such an award
without the need of further pleadings or an evidentiary hearing. Likewise, no additional
evidentiary hearing or pleadings are required where fee counsel fails to provide evidence on
some factor which it contends the court ought to take into account. It is perfectly proper to
award attorney’s fees based solely on affidavits in the record. . . . Certainly, however, where
there is a dispute of material historical fact such as whether or not a case could have been settled
without litigation or whether attorneys were duplicating each other’s work, an evidentiary
I. Procedural History
On September 20, 2008, the Court entered a final judgment in favor of Hithon, the sole
remaining plaintiff. (Doc. 433). On March 19, 2013, an order was entered regarding the parties’
subsequent motions for fees and costs, which reduced the hourly rate below what Hithon sought,
applied an 80% across-the-board reduction, disallowed nearly $40,000 in litigation-related
expenses, and awarded Hithon fees in the total amount of $281,103.25, and costs in the total
amount of $16,480.51. (Doc. 478).
Hithon appealed that order to the Eleventh Circuit.
On appeal, Hithon
argued the magistrate judge previously assigned to this case erred (1) in finding a reasonable
hourly rate lower than Hithon requested, (2) in finding Hithon’s counsel had failed to exercise
billing judgment, (3) by ignoring the Eleventh Circuit’s remand to determine fees from a prior
appeal, (4) by failing to give notice and an opportunity to be heard before substantially reducing
the fee, (5) by failing to give a reasonable explanation for the reduction in costs, and (6) failing
to enhance the lodestar amount. (Doc. 493-4). On May 16, 2014, the Eleventh Circuit held the
magistrate judge had not abused his discretion by finding lower hourly rates than requested,
finding Hithon’s counsel had failed to exercise billing judgment, or cutting Hithon’s fee award
by a large percentage. (Doc. 481-1 at 3-4).
The court, however, reversed and remanded on three issues (one of which Hithon had not
raised): (1) the hours spent on Hithon’s 2005 appeal should have been included, (2) attorney
Eric Schnapper’s work for Hithon before the United States Supreme Court should have been
included, and (3) the magistrate judge abused his discretion by failing to adequately explain his
reason for reducing the award of costs. (Id. at 4-6). The court directed entry of judgment for the
hearing is required.) (internal citations omitted).
Accordingly, Hithon’s motion, (doc. 498), is
amount of costs and fees stated in its opinion. (Id. at 6).
Lastly, the court noted, “since [Hithon] was partially successful in the instant appeal, his
counsel is entitled to reasonable attorneys’ fees for this appeal, to be added to the total.” (Id.).
The undersigned was assigned to this case upon its reopening in this Court for that purpose on
August 4, 2014.
A. Hithon’s Motion to Strike
Hithon moves to strike the affidavits of Jay St. Clair and Tobias Dykes attached to
Tyson’s opposition to Hithon’s motion.
Hithon contends the affidavits are not
admissible and should be stricken because the Eleventh Circuit and this Court have previously
noted that fees for defense firms are generally lower and affidavits from attorneys at such firms
can “offer only limited guidance to the court.”
(Doc. 494 at 2).
He refers to them as
“meaningless,” “unhelpful,” and “useless.” (Id. at 3-4).
However, none of the cases he cites refers to them as such. See Norman v. Hous. Auth. of
City of Montgomery, 836 F.2d 1292, 1305 (11th Cir. 1988); Evans v. Books-A-Million, 907 F.
Supp. 2d 1284, 1304 (N.D. Ala. 2012); Fox, et al. v. Tyson Foods, Inc., 4:99-cv-01612-VEH,
doc. 819 at 36-37 (N.D. Ala. Feb. 17, 2009). In fact, the Fox court’s reference to the affidavits
as providing “limited guidance” indicates they may provide some guidance, 4:99-cv-01612VEH, doc. 819 at 36, and the Evans court relied on an admission of rate increases in one of the
defense affidavits, 907 F. Supp. at 1304.
None of the three courts struck the affidavits as
irrelevant but simply took the differences into account.
See Norman, 836 F.2d at 1305
(remanding for consideration of the differences between the attorneys referenced in the evidence
and the class counsel in that case); Fox, 4:99-cv-01612-VEH, doc. 819 at 37 (referring to the
affidavits as “incomplete” before relying on its own expertise); Evans, 907 F. Supp. at 1304
(noting the defense affidavit’s admission of increasing billing rates and that “a plaintiff’s
attorney, who takes on greater risk in litigating a case, could reasonably charge a higher rate”
before awarding a higher rate).
In his reply, Hithon refers to these three cases as “controlling” authority, (doc. 499 at 2),
but, as noted above, he cites to nothing in those cases indicating that the affidavits of defense
attorneys are due to be stricken instead of merely considered in context. Accordingly, Tyson’s
affidavits will be considered in their proper context, and Hithon’s motion to strike them is
B. Hithon’s Motion for Attorneys’ Fees
Under 42 U.S.C. § 1988, “the court, in its discretion, may allow the prevailing party . . . ,
a reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C. § 1988. “The purpose of § 1988
is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances,” and
a prevailing party should recover absent special circumstances rendering an award unjust.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94–1558, p. 1 (1976)).
“Generally, what constitutes a reasonable attorney’s fee is calculated using the ‘lodestar’ method,
taking the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate,” Maner v. Linkan LLC, 602 F. App’x 489, 491 (11th Cir. 2015) (citing Hensley, 461
U.S. at 433-34), and “there is a strong presumption that the lodestar figure is a reasonable sum,”
id. at 493 (citing Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008)). However,
“[a]fter the lodestar is determined . . . , the court must next consider the necessity of an
adjustment for results obtained.” Norman, 836 F.2d at 1302.
1. Reasonable Attorneys’ Fees
a. Lodestar Calculation
“In determining what is a ‘reasonable’ hourly rate and what number of compensable
hours is ‘reasonable,’ the court is to consider the 12 factors enumerated in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Bivins, 548 F.3d at 1350. See also
Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (“The Johnson factors may be relevant in
adjusting the lodestar amount, but no one factor is a substitute for [the lodestar calculation].”).
The Johnson factors are (1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite 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 with the client; and (12) awards in similar cases. 488 F.2d at 717-19.
i. 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,” and
the party seeking attorneys’ fees bears the burden of producing “satisfactory evidence” the rate
sought meets that standard. Norman, 836 F.2d at 1299.
Hithon seeks hourly rates of $475.00 for lead attorney Alicia Haynes, $430.00 for
attorney Kenneth Haynes, $500.00 for appellate attorney Charles Guerrier, $150.00 for paralegal
Mistie Smith, and $125.00 for paralegal Tammy Edwards. (Doc. 490-7 at 2; doc. 495 at 32).
These numbers are based on the affidavits of Alicia Haynes, stating a range of $375 to $650 for
Alabama employment cases, (doc. 490-1 at 5); John Saxon, stating a range of $225 to $600 for
Alabama employment cases, (doc. 490-6 at 5); Kenneth Haynes, stating a range of $250 to $600
for federal employment cases in the Northern District of Alabama, (doc. 490-2 at 4); Heather
Leonard, stating a range of $250 to $650 in the Northern District of Alabama, (doc. 490-4 at 6);
Cynthia Wilkerson, stating a range of $250 to $650 in the Northern District of Alabama, (doc.
490-5 at 4); and Charles Guerrier, stating a reasonable rate for an attorney of his experience in
the Northern District of Alabama is $500, (doc. 490-3 at 15-17).
Tyson contends, on the other hand, this Court (and the Eleventh Circuit by its affirmance)
already established Hithon’s attorneys’ fee rates (except Guerrier) when ruling on the previous
fee petition. (Doc. 492 at 18-20) (citing Manning v. School Bd. of Hillsborough County, FL, 135
F. Supp. 2d 1192, 1196 (M.D. Fla. 2001), and White v. Murtha, 377 F.2d 428, 431 (5th Cir.
Hithon argues this law-of-the-case argument fails because those cases are
distinguishable. The Manning court, he states, merely used the previous rates as a factor in its
(Doc. 495 at 10-11).
Then, he concludes the White case actually
supports his contention the fees should be completely relitigated because that court, despite
affirming the prior order requiring set-off as law of the case, held it did not apply to the tax lien
in question and the pension fund trustees could not set it off. (Id. at 11-12).
Hithon is right the Manning court did not simply use the previous numbers but used them
as a baseline for determining new rates after considering the rise in rates and increased
experience since that time. See 135 F. Supp. 2d at 1196 (“In addition to beginning with the rates
previously awarded in September 1999, the Court recognizes that in the period since that Order
was entered, attorneys’ fees have likely risen in the Tampa area. The Court also recognizes that
in that time period, Dawson and Bolden have likely gained experience.”). However, the White
case does not, as Hithon argues, support his contentions. The White court merely held the taxes
did not fall under the prior order because they were imposed on the pension fund trustees
themselves after they purchased the property and, therefore, were not an obligation incurred by
See 377 F.2d at 432-33. Nor is this, as Hithon implies, a situation in which “a
subsequent trial produces substantially different evidence.” (See doc. 495 at 12) (citing Wheeler
v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984)). The “substantially different
evidence” must undermine the prior order, see United States v. Robinson, 690 F.2d 869, 872
(11th Cir. 1982) (refusing to follow original opinion based on faulty assumption contradicted by
subsequent evidence), which Hithon has not argued here, (see doc. 495 at 12) (arguing just that
the Court has not determined a reasonable rate for time after the previous order).
reasonable-rate determination previously made by this Court and affirmed by the Eleventh
Circuit is the law of the case regarding a reasonable rate prior to the appeal, and, as in Manning,
it creates a baseline from which to determine the reasonable rate for attorneys covered by that
However, Tyson’s contention the law of the case requires that rate to be exactly the same
as in that previous order is also incorrect. (See doc. 492 at 19-20). It relies on the date of the
Eleventh Circuit’s opinion to argue all time spent before that should be covered by that mandate.
(Id. at 18-20).
However, the Eleventh Circuit’s opinion was not that the stated rates were
reasonable for the time spent litigating that appeal, but that they were reasonable for the time
spent before this Court’s original fee award. Nor does the Eleventh Circuit’s award of additional
hours “at the hourly rate determined by the district court” contradict this conclusion. (See doc.
492 at 18) (arguing the Eleventh Circuit opinion “does not mandate that hourly rates need to be
recalculated for work done on the last appeal” because it awarded the additional hours at the rate
set by this Court). The additional hours were for hours expended in earlier appeals to which this
Court’s earlier determinations of reasonable hours, rates, and adjustments would have been
applicable. (See doc. 481-1 at 4 n.1) (citing doc. 477-1 at 27 and applying the hours, rates, and
adjustments as set out in doc. 478 at 22). The new hours expended on the fee appeal must be
based on the prior order but re-examined to determine whether the rates should have increased
over the past year. See Manning, 135 F. Supp. 2d at 1196.
Citing the affidavits of Jay St. Clair and Tobias Dykes, Tyson contends that, if the Court
determined an increase is necessary, the increase should not be more than $40-$45. (See doc.
492 at 20 n.3). Specifically, Tyson’s witnesses have testified that the market would most likely
bear an increase of only $10-$20 per year. (Doc. 493-6 at 6; doc. 493-7 at 6). Alicia Haynes’s
affidavit indicates this Court in another case had previously awarded her rates of $400 per hour
for work performed through 2010 and $440 for work from 2010 to 2012. (Doc. 490-1 at 6)
(citing Hall v. Siemens VDO Automotive, No. 5:06-cv-01208). The consistency of this evidence
supports a finding that an increase of $40-$45 per hour over the amount awarded to attorneys
covered by the previous fee order would be appropriate in these circumstances.
This Court’s previous order did not address a reasonable rate for Charles Guerrier and,
therefore, no reasonable rate has yet been set for him for any time period within the case. (See
doc. 478 at 22). Tyson contends Guerrier should be awarded the $400 per hour he requested and
was awarded in 2012 in Evans and in 2014 in Hall v. Siemens VDO Automotive Electronics
Corp., 5:06-cv-1208-SLB (N.D. Ala. March 31, 2014). In his affidavit, Guerrier acknowledges
he sought this amount in 2012 and 2014; however, he asserts he has since become aware higher
rates are charged in the Northern District of Alabama for similar work by attorneys of similar
experience and has, therefore, raised his rate to $500. (See doc. 490-3 at 15-17) (citing Fox,
4:99-cv-01612-VEH, doc. 819, for its awards of $550 to experienced employment attorneys in
Birmingham in 2009).
Tyson’s assertion based solely on prior cases is shaky on several grounds. First, the Hall
court awarded an amount partially based on Evans and with no opposition from the defendants.
See 5:06-cv-1208-SLB, doc. 193 at 11.
At the time of the Evans award, Guerrier was not
admitted to practice in Alabama and had not entered an appearance in that case. 907 F. Supp. 2d
at 1304. Neither is the case here. Second, the Evans award was entered in 2012 and, even if the
Court simply adopted the Evans court’s numbers, Guerrier would still be entitled to, at least, a
comparable increase to that applied to the reasonable rates established for the other attorneys.
Generally, Hithon’s affidavits assert amounts $225 to $650 for employment attorneys in the
district, (doc. 490-1 at 5; doc. 490-2 at 4; doc. 490-4 at 6; doc. 490-5 at 6; doc. 490-6), and
Tyson’s affidavits assert a reasonable fee for Guerrier would be $415 or $420, (doc. 493-6 at 7;
doc. 493-7 at 6-7).3 Based on rates awarded other employment attorneys in the district, Guerrier
states a reasonable rate for his services is $500. (Doc. 490-3 at 17).
Hithon does not argue the issues on appeal were particularly novel or difficult, which is
consistent with the undersigned’s review of those issues, and there is nothing about the case
making it particularly undesirable; however, Guerrier’s affidavit does indicate considerable
experience in employment litigation and appeals. Considering the parties’ affidavits, the nature
of the appeal, and the previous awards to Guerrier and similar attorneys in the district, the Court
finds the evidence supports a reasonable attorney fee for Guerrier of $475 per hour.
The numbers given in the Tyson affidavits are commensurate with the hourly rates
Tyson’s counsel has charged it clients. (Doc. 493-6 at 4; doc. 493-7 at 4). However, as noted in
the discussion on Hithon’s motion to strike, the rates of a defense firm have limited probative
value in determining the rates of a plaintiff’s attorney, see Section A., supra., and Eleventh
Circuit precedent acknowledges rates at established defense firms are often lower than those a
plaintiff’s attorney could reasonably charge, Norman, 836 F.2d at 1305.
Accordingly, the Court finds the following rates are reasonable for the attorneys and
paralegals involved in the appeal at issue:
HOURLY RATE AWARDED
ii. Reasonably Expended Hours
In determining the hours reasonably expended on the litigation, the Court may reduce the
hours claimed as being excessive or unnecessary, redundant, or spent on discrete and
unsuccessful claims. See Norman, 836 F.2d at 1301-02. “When a district court finds the number
of hours claimed is unreasonably high, the court has two choices: it may conduct an hour-byhour analysis or it may reduce the requested hours with an across-the-board cut,” but it may not
double-count by doing both on the same grounds. Bivins v. Wrap It Up, Inc., 548 F.3d 1348,
1350-51 (11th Cir. 2008).4 As Tyson has objected to specific hours and Hithon has responded to
each objection, the Court will address these on an hour-by-hour basis, except for those objected
to as spent on unsuccessful claims, which will be subsumed into the subsequent “results
obtained” lodestar adjustment step.5
Any reduction at the reasonable-hours stage is separate from any adjustment of the
lodestar for results obtained (as long as the reasons for one do not overlap with the other). See
Bivins, 548 F.3d at 1351-52.
Unsuccessful claims are considered for purposes of the adjustment of the overall
reasonableness of the lodestar figure, Norman, 836 F.2d at 1302 (“After the lodestar is
Tyson objects to the hours on several bases. It asserts some of the hours are merely
attorneys or paralegals performing clerical acts, which are not recoverable as attorneys’ fees.
(Doc. 492 at 22-25). See also Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988); Allen v.
McClain EZ Pack of Alabama, Inc., No. 03-0490-WS-M, 2005 WL 1926636, at *3 (S.D. Ala.
Aug. 8, 2005). It further asserts the time claimed for “law clerks” is not properly documented
and should not be included. (Doc. 492 at 25-26). Hithon agreed to withdraw the “law clerk”
time, resolving that issue. (Doc. 495 at 30). Lastly, Tyson objects to hours that, it asserts, are
“otherwise unnecessary.” (Id. at 26-28).
a) Clerical Time
First, Tyson is correct that hours may not be charged to the opposing party if they are
administrative or clerical functions, regardless of who performs them. See Allen, No. 03-0490WS-M, 2005 WL 1926636, at *3 (citing Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288
n.10 (1989)). Hithon, as the party seeking the fee award, has the burden of establishing he is
entitled to them. Norman, 836 F.2d at 1299. Initially, Hithon has agreed to withdraw eleven of
the twenty-one time entries Tyson contends are clerical. (Doc. 495 at 25-29). Of the remaining
ten, Hithon argues they were not clerical functions but required at least some legal skill and
discretion. (Id.). Specifically, the parties dispute line items 304, 317, 320, 321, 322, 336, 341,
344, 346, and 348. (See doc. 493-2 at 3-5; doc. 495 at 25-29). On each entry, Tyson merely
asserts “[t]he work in this entry is clerical.” (Doc. 493-2 at 3-5).
In line 304, Hithon claims an hour and a half Guerrier spent “[w]ork[ing] with Time
determined . . . , the court must next consider the necessity of an adjustment for results
obtained.”), and it would be improper to reduce the fees awarded twice for the same factor,
Bivins, 548 F.3d at 1352 (citing City of Burlington v. Dague, 505 U.S. 557, 563 (1992)); accord
Barnes v. Zaccari, 592 F. App’x 859, 871 (11th Cir. 2015) (citing Bivins for the proposition that
considering a factor for both the lodestar and the adjustment “amounts to double-counting”).
Matters to develop a report format that can be edited.” (Doc. 493-2 at 3; doc. 495 at 25). Hithon
contends Tyson admits a fee petition may be rejected for being unorganized and Guerrier’s time
was spent making certain Hithon’s attorneys’ billable hour system was “capable of producing a
report which will meet this standard.” (Doc. 495 at 25). The Court agrees this is not entirely
clerical or administrative along the lines of photocopying, stamping, updating files and binders,
or labeling documents. See Allen, No. 03-0490-WS-M, 2005 WL 1926636, at *3.
In line 317, Hithon claims two and a half hours Paralegal Tammy Edwards spent
“[r]eviewing pleadings for missing documents for appeal records to prepare for oral argument”
and “[s]ecur[ing] and analy[zing] all documents used in fee affidavit and all time records to
assist in oral argument.” (Doc. 493-2 at 3; doc. 495 at 25). Hithon contends “[t]his is typical
work which a paralegal would do to assist an attorney in preparing for oral argument” and
“requires an understanding of the legal issues raised on appeal and the ability to identify
additional documents, not previously identified by the attorneys . . . .” (Doc. 495 at 25). The
Court agrees this is not merely clerical work but is work that would, in the absence of a
paralegal, need the skills of an attorney.
In line 320, Hithon claims four hours Edwards spent “[o]rganizing, copying and labeling
binders/documents for [oral argument].” (Doc. 493-2 at 4; doc. 495 at 26). Hithon contends this
is not clerical because the documents must be properly organized and labeled to be readily
available at oral argument. (Doc. 495 at 26). While the Court agrees organization of binders and
documents is an important legal function, it does not agree copying and applying labels are not
purely clerical functions.
However, since Hithon has not divided the clerical and non-clerical
work into separate entries, the Court finds that crediting one of the four hours as properly
awardable is a fair result.
In line 321, Hithon claims half an hour Edwards spent “[m]eeting with [Guerrier]
regarding all of Hithon documents and how to organize them and what needed to be retained
regarding appeal.” (Doc. 493-2 at 4; doc. 495 at 26). Hithon contends this is not clerical work
but is essential to ensure “the documents will be properly organized and available to [the arguing
attorney] should he need them during argument.” (Doc. 495 at 26). The Court agrees this is not
entirely clerical work along the lines of photocopying, stamping, updating files and binders, or
In line 322, Hithon claims three hours Edwards spent “[r]eview[ing] client documents in
the basement and pull[ing] documents requested by [Guerrier] and/or Alicia [Haynes].” (Doc.
493-2 at 4; doc. 495 at 26). Hithon contends “[t]his is not simply pulling all documents in the
file” but required some “exercise of judgment” “as to which documents to identify.” (Doc. 495
at 26). The description does not indicate that to be the case but, as it states, suggests Edwards
“pull[ed] documents requested” by the attorneys. (See doc. 493-2 at 4; doc. 495 at 26). The
description does not indicate the type of broad request requiring legal judgment implied by
Hithon’s argument. The Court finds this was clerical work and is not properly awardable as fees.
In line 336, Hithon claims two-tenths of an hour Paralegal Mistie Smith spent in a
“[t]elephone conference with Mr. Caleb Davis regarding the Confidential Mediation Statement
and advising that Mr. Hithon did not need to be present for the mediation . . . .” (Doc. 493-2 at
4; doc. 495 at 27). Hithon contends “[d]irect communications with the court mediator about the
contents of the confidential mediation statement . . . are matters which would routinely be
handled by an attorney or paralegal.” (Doc. 495 at 27). The Court agrees such communications
would likely require legal knowledge, especially considering the fact Smith was drafting the
Caleb Davis was the mediator in a July 2013 mediation of this case. (See doc. 490-9 at
Confidential Mediation Statement, (doc. 490-9 at 29), and, in the absence of a paralegal, the
communications would have required an attorney.
In line 341, Hithon claims another two-tenths of an hour Smith spent in a “[t]elephone
conference with Eleanor Dixon regarding status of Motion for 7-Day Extension in filing
response brief.” (Doc. 493-2 at 4; doc. 495 at 28). Hithon contends “[t]his is not a simple call to
determine if the motion was or was not granted” but reflects a substantive telephone conference
regarding the motion for an extension and “[c]ommunications with the Court would ordinarily be
handled by an attorney or paralegal.” (Doc. 495 at 28). The description, however, does not
support this interpretation. It describes a short call about the “status” of the motion. There is no
indication from the record this was a call requiring legal expertise and will not be awarded as
In line 344, Hithon claims another two-tenths of an hour Smith spent “review[ing] . . .
Calendar Acknowledgment from Eleventh Circuit Court of Appeals” and “filing . . . Calendar
Receipt Acknowledged with Eleventh Circuit Court of [A]ppeals for oral argument . . . .” (Doc.
493-2 at 5; doc. 495 at 28). Hithon contends this is not a clerical function because the notice is
directed to counsel, counsel must be signed in to view the calendar, and the acknowledgement,
therefore, must be done “under direct supervision of counsel.” (Doc. 495 at 28). Just because
counsel’s password is necessary to complete the clerical function does not make it any less
No legal skill is required to acknowledge receipt of the Calendar Acknowledgment.
The Court finds this was a clerical function.
In line 346, Hithon claims three-tenths of an hour Smith spent “[r]evis[ing], finaliz[ing]
and mail[ing] correspondence to John Ley, Clerk of the 11th Circuit Court of Appeals with
memorandum order from the Hall matter.” (Doc. 493-2 at 5; doc. 495 at 29). Hithon contends
this is not clerical because it “involves drafting a direct correspondence to the clerk of courts.”
(Doc. 495 at 29). However, the entry does not say Smith “drafted” correspondence to the clerk
of court, but that she “revise[d], finalize[d] and mailed” what was clearly a previously drafted
letter. (Doc. 493-2 at 5; doc. 495 at 29) (emphasis added). The letter appears to have been
drafted by Guerrier. (Doc. 490-9 at 22) (including an entry on the same date stating he “[d]rafted
letter transmitting supplemental authority to the Eleventh Circuit.”).
Revising and mailing an
attorney’s letter is certainly a clerical function and will not be awarded as fees.
In line 348, Hithon claims four-tenths of an hour Smith spent in a “[t]elephone
conference with Valerie, clerk with the Eleventh Circuit Court of Appeals advising that
supplemental authority letter must be filed with the Court electronically.” (Doc. 493-2 at 5; doc.
495 at 29). Hithon contends “[t]his communication requires an understanding of the rules related
to the filing of supplemental authorities with the court.”
However, the description merely
conveys a conversation in which an Eleventh Circuit clerk informed Smith the supplemental
authority letter would need to be filed with the Court electronically.
As with the previous
“telephone conference” with the Eleventh Circuit Clerk’s Office, there is no indication from the
record that any legal skill was necessary to the discussion, and it will not be awarded as fees.
In sum, seven and one-tenth hours of Hithon’s claimed time is not chargeable as
attorneys’ fees, in addition to the time voluntarily withdrawn in his reply: 6.0 hours billed by
Edwards and 1.1 hours billed by Smith. Altogether, the reasonably expended hours calculation
is reduced by 9.2 hours for Edwards and 2.4 hours for Smith.
b) Other Challenged Time
Next, Tyson objects to the time Guerrier spent, as Tyson terms it, “getting up to speed”
on the case and on research regarding the “n-word.” (Doc. 492 at 26; doc. 493-2 at 2, line nos.
162, 164, & 166). Tyson contends time getting up to speed is not properly billed to a client or
one’s adversary. (Id. at 27) (citing Lang v. Reedy Creek Improvement Dist., 1997 WL 809200,
*5 (M.D. Fla. 1997)). Hithon asserts Guerrier was not merely “getting up to speed” but reviewed
the documents in preparation for responding on appeal to the fee order’s factual finding Alicia
Haynes had violated the court’s ruling by referring to the tax consequences of any jury award
during oral argument to the jury. (Doc. 495 at 31) (citing doc. 478 at 21 n.10). Tyson further
contends the “n-word” was not relevant to the case but was improperly injected into the case by
Hithon’s counsel. (Id. at 27) (citing Ash v. Tyson Foods, Inc., 664 F3d 883, 896 n.8 (11th Cir.
2011)). Hithon asserts this was not irrelevant because the issues were attorneys’ fees and, since
both the trial court and earlier appellate panel used it to criticize trial counsel, the research was
necessary in order to respond to any criticism from the bench related to the use of the “n-word.”
(Doc. 495 at 31-32). The Court finds these are reasonable hours expended preparing for appeal.
b. Lodestar Total
Hithon claims the following unchallenged or otherwise reasonably expended hours7 for
each of his attorneys and paralegals: 158.9 hours for Alicia Haynes, (doc. 490-9 at 14); 19.7
hours for Kenny Haynes, (id. at 16); 300.85 hours for Charles Guerrier, (id. at 27); 6.3 hours for
Tammy Edwards, (id. at 28) (as modified above); and 12.7 for Mistie Smith, (id. at 31) (as
modified above). Therefore, the lodestar subtotal for Alicia Haynes is $66,738.00; for Kenny
Haynes is $7,289.00; for Charles Guerrier is $142,903.75; for Tammy Edwards is $787.50; and
for Mistie Smith is $1,841.50. Altogether, the total lodestar figure for attorneys and paralegals’
fees is $219,559.75.
As noted above, these are the hours Tyson has not challenged or the Court has
otherwise found reasonable, having reserved the discussion of the successfulness of the claims
toward which those hours were expended for any subsequent, “results obtained” lodestar
In discussing adjustments to the lodestar amount, the Eleventh Circuit has stated:
After the lodestar is determined by multiplication of a reasonable hourly rate
times hours reasonably expended, the court must next consider the necessity of an
adjustment for results obtained. If the result was excellent, then the court should
compensate for all hours reasonably expended. If the result was partial or limited
success, then the lodestar must be reduced to an amount that is not excessive. In
doing so, the court may attempt to identify specific hours spent in unsuccessful
claims or it may simply reduce the award by some proportion. A reduction is
appropriate if the relief, however significant, is limited in comparison to the scope
of the litigation as a whole. Where all theories derive from a common core of
operative facts, the focus should be on the significance of overall results as a
function of total reasonable hours. It is improper to make the reduction based on
a simple ratio of successful issues to issues raised. The vindication of a
constitutional right is important even if only a small amount of money is involved.
Norman, 836 F.2d at 1302.
Tyson argues the lodestar number should be drastically reduced because Hithon’s appeal
failed on its two primary arguments and succeeded on only “three minor points,” resulting in an
increased award of only 5% of what was sought on appeal. (Doc. 492 at 29-30). Tyson also
notes Hithon spent only six pages of his brief’s forty-five pages of argument discussing the
successful claims, and he spent none of the reply’s twenty-five pages of argument on successful
claims. (Id. at 12; doc. 493-4; doc. 493-5). Tyson ultimately asserts the fee should be reduced
by 50% “at a minimum” but the Court would be justified in applying the same 80% reduction
applied to the prior petition. (Doc. 492 at 32).
Hithon responds that no further reduction to the lodestar is required because the appeal
increased the attorney fee by 47%, which “[w]hile it may be only [a] small percentage of what
was sought . . . , it is a significant victory for a Plaintiff intent on vindicating his civil rights.”
(Doc. 495 at 36).
While it is true the attorney’s vindication of the plaintiff’s civil rights is
worthy of consideration when determining the attorney’s reasonable fees, the extra layer between
the successful civil-rights claims and the successful fee-appeal claims raises different
considerations for appeals of “fees for fees” petitions.
While completely denying compensation for time spent on fee issues would “diminish the
proper net award of attorney’s fees for the successful civil rights claim,” Thompson v. Pharmacy
Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003), the court also needs to consider how the
award of fees for fees creates an incentive to expand the litigation on an issue that only indirectly
benefits the plaintiff, see id. (“Lawyers should not be compensated for turning the litigation
about attorneys’ fees into a second major litigation.”) (internal quotation marks omitted); Souza
v. Southworth, 564 F.2d 609, 614 (1st Cir. 1977) (“[T]he fact that litigation over fees only
indirectly benefits the plaintiff class is a consideration of some importance in a determination of
the reasonableness of a particular fee for these services.”); Mares v. Credit Bureau of Raton, 801
F.2d 1197, 1206 (10th Cir. 1986) (“There is a difference, however, between time necessary to
prepare and submit an application for fees, and hours spent disputing a fee award. The latte r are
especially suspect . . . .”). In contrast to the underlying civil-rights litigation, courts have not
always looked kindly on appeals of fees-for-fees petitions. See, e.g., Hensley, 461 U.S. at 442
(referring to “appeals from awards of attorney’s fees, after the merits of a case have been
concluded, when the appeals are not likely to affect the amount of the final fee” as “one of the
least socially productive types of litigation imaginable”) (Brennan, J., with Marshall, Blackmun
and Stevens, JJ., concurring in part and dissenting in part); Wolfel v. Bates, 749 F.2d 7, 9 (6th
Cir. 1984) (“We bring these conclusions to the district court’s attention only in order to prevent
yet another round of the least socially productive type of litigation imaginable: appeals from
awards of attorney’s fees.”) (internal quotation marks omitted); Marshak v. Branch, 980 F.2d
727 n.7 (4th Cir. 1992) (noting the Fourth Circuit has “embraced Justice Brennan’s belief”
regarding appeals from awards of attorney’s fees). Moreover, the Supreme Court has held that,
“[b]ecause Hensley . . . requires the district court to consider the relationship between the amount
of the fee awarded and the results obtained, fees for fee litigation should be excluded to the
extent that the applicant ultimately fails to prevail in such litigation,” Comm’r, I.N.S. v. Jean, 496
U.S. 154, 163 n.10 (1990) (applying Hensley in the Equal Access to Justice Act context).
Hithon further contends this Court should not consider a reduction based on the ratio
between the increase he sought on appeal and the additional fees awarded because “[t]he
Supreme Court has ‘reject[ed] the proposition that fee awards under § 1988 should necessarily be
proportionate to the amount of damages a civil rights plaintiff actually recovers.’” (Doc. 495 at
35-36) (quoting City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)). However, the two
sentences before that quote explicitly state “[t]he amount of damages a plaintiff recovers is
certainly relevant to the amount of attorney’s fees to be awarded” and is “one of many factors
that a court should consider in calculating an award of attorney’s fees.” Rivera, 477 U.S. at 574.
The Rivera court was addressing whether damages recovered should be the only consideration
and concluding that other factors, such as the vindication of rights and the public benefit, should
also be considered. Id. In the fees-for-fees context, on the other hand, the vindication of rights is
less immediate, and its significance lies in the extent to which the award for that vindication
would be diluted by forcing an attorney to defend the original award with no compensation for
the additional work. See Thompson, 334 F.3d at 1245. This rationale supports the Jean Court’s
conclusions that fees for fees are compensable but “fees for fee litigation should be excluded to
the extent that the applicant ultimately fails to prevail in such litigation,” 496 U.S. at 162 & 163
n.10. The ratio between the increase Hithon sought on appeal and the additional fees awarded is
certainly relevant to that determination.
Lastly, Hithon cites Blanchard v. Bergeron, 489 U.S. 87, 91 (1989), for the proposition
he should be entitled to “all time reasonably expended on the matter.” (Doc. 495 at 37-38). The
implication appears to be that the lodestar should not be reduced based on the limited success of
the appeal because he should be compensated for all time reasonably expended. However, this
would be a misreading of Blanchard, which, in discussing whether a fee award could be greater
than what would be paid under the plaintiff’s contingency contract, noted there would be no
windfall for the plaintiff’s attorney because “[f]ee awards [in civil rights cases] are to be
reasonable, reasonable as to billing rates and reasonable as to the number of hours spent in
advancing the successful claims.” 489 U.S. at 946 (emphasis added). The Blanchard Court also
repeatedly referred to the Johnson factors, one of which is “results obtained,” in support of its
holding. See id. at 91-93 & 91 n.5. The Court held “all time reasonably expended” should be
awarded, but its definition of “all time reasonably expended” already included the adjustment
based on results obtained.
While the increase in fees awarded on appeal was not insignificant, Hithon cannot argue
the results were “excellent” considering he attacked the magistrate judge’s largest reductions and
sought an additional two-and-a-half million dollars but, unsuccessful on those arguments, was
awarded an additional $140,839 in fees and costs instead. In fact, the Eleventh Circuit’s opinion
explicitly referred to the result as “partially successful.” (Doc. 481-1 at 6). As a result, the
lodestar will be reduced to a reasonable amount for the results obtained. See Norman, 836 F.2d
at 1302; Jean, 496 U.S. at 163 n.10. Considering that the only direct result obtained in the
appeal in question was monetary relief (the increase in attorneys’ fees), the monetary result
necessarily must be the starting point for determining the degree of success and resulting
adjustment. The adjustment would then be applied to the lodestar to the extent it does not unduly
dilute the prior award and undermine the purpose of the fee-shifting statute.
There are several ways to consider the “results obtained” even where there is limited or
no non-monetary relief and the focus is primarily on how much money was obtained as a result
of the litigation. The amount obtained can be, as Tyson would have it, compared to the total
amount sought, which in this case would be around 5% (i.e., $140,839.33 instead of the roughly
two-and-a-half million dollar increase sought). (See doc. 492 at 30). This comparison focuses
on the successful claims versus the unsuccessful ones. However, the amount obtained could also
be, as Hithon would have it, compared to the previous amount awarded, which in this case would
be an increase of around 47% (i.e., $140,839.33 on top of $297,583.76). (Doc. 495 at 31).
Another way to look at this number is to consider that the increase accounts for roughly a third of
the total fees and costs awarded (i.e., $140,839.33 out of $438,423.09). These latter comparisons
focus on the effectiveness of the successful claims. Both types of comparisons are important
aspects of the litigation’s result.
Given the Supreme Court’s policy against incentivizing fees-for-fees appeals, Hithon
cannot be rewarded for the time spent seeking twenty times more than he was entitled to. See
Jean, 496 U.S. at 163 n.10; Hensley, 461 U.S. at 442. Yet, without the successes from the
appeal, Hithon would have obtained a third less than the amount to which the Eleventh Circuit
determined he was ultimately entitled: the Eleventh Circuit did not award him “more” fees and
costs; it awarded him that to which he was entitled but not given in the original award.
Considering these aspects together, the undersigned finds the lodestar should be adjusted
downward by 50%, which should reduce the incentive to bring such unsuccessful claims on
appeal in the future while still rewarding the limited success and preventing substantial dilution
of the overall award. Accordingly, Hithon is awarded $109,779.88 in attorneys’ fees.
Tyson does not challenge Hithon’s requested costs. (Doc. 492 at 33). Therefore, Hithon
is awarded the full $3,513.75 in costs he has requested. (See id.; doc. 490-10 at 4).
The Eleventh Circuit’s mandate ordered entry of judgment for attorneys’ fees of
$382,403.25 and costs of $56,019.84 with the reasonable attorneys’ fees and costs of that appeal
added to the total. (Doc. 481-1 at 6). Accordingly, Tyson Foods, Inc. is ORDERED to pay
attorneys’ fees of $492,183.13 and costs of $59,533.59, totaling $551,716.72. These fees and
costs shall be paid to Hithon’s counsel, Alicia Haynes, for further disbursement.
DONE this 17th day of December 2015.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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