O'NEAL v. NORFOLK SOUTHERN RAILWAY COMPANY

Filing 103

ORDER GRANTING in part and DENYING in part (88) Motion for Attorney Fees in case 5:16-cv-00519-MTT; GRANTING in part and DENYING in part (79) Motion for Attorney Fees in case 5:16-cv-00520-MTT. The Plaintiffs are entitled to recover reasonable attorneys fees in the amount of $391,077.05 ($381,822.05 for Mosss and Steels time and $9,255.00 for Jacksons time). The Plaintiffs are also entitled to recover reasonable litigation costs in the amount of $20,920.94. The Defendant is ORDERED to pay the Plaintiffs $411,997.99. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/15/2018. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PHILLIP O’NEAL,
Plaintiff,
v.

NORFOLK SOUTHERN RAILROAD
COMPANY,
Defendant.
MICHAEL SMITH,
Plaintiff,
v.
NORFOLK SOUTHERN RAILROAD
COMPANY,
Defendant.

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CIVIL ACTION NO. 5:16-CV-519 (MTT)

CIVIL ACTION NO. 5:16-CV-520 (MTT)

ORDER
Plaintiff Smith and Plaintiff O’Neal jointly move for recovery of attorney’s fees and
expenses of litigation. O’Neal, 5:16-CV-519, Doc. 88; Smith, 5:16-CV-520, Doc. 79.
For the following reasons, that motion is GRANTED in part and DENIED in part, and
the Defendant is ORDERED to pay the Plaintiffs $411,997.99 for reasonable attorney’s
fees and expenses of litigation.
BACKGROUND
The Plaintiffs brought these actions against Defendant Norfolk Southern Railroad
Company after they were discharged by the Defendant for allegedly lying about a

workplace injury. See O’Neal, 5:16-CV-519, Doc. 1 at 5. Plaintiff O’Neal alleges that he
fell from a chair at work because the seat was not properly bolted to the frame, suffering
serious injuries due to Defendant Norfolk Southern’s negligence. Id. at 4, 7-8. O’Neal
also alleged he was retaliated against for reporting the personal injury and for reporting
a hazardous safety condition. Id. at 6. He brought suit against Norfolk Southern under
the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, for negligence, and
under the employee protection provision of the Federal Railroad Safety Act (“FRSA”),
49 U.S.C. § 20109, for retaliation. Id. at 5-9. Plaintiff Smith alleged he was retaliated
against for reporting O’Neal’s injury to Norfolk Southern and for reporting a hazardous
safety condition, and he brought suit under the FRSA for retaliation. Smith, 5:16-CV520, Doc. 1 at 4-7. The Court consolidated Smith’s and O’Neal’s FRSA claims for trial,
and the jury reached verdicts in favor of the Plaintiffs. O’Neal, 5:16-CV-519, Docs. 62;
81; Smith, 5:16-CV-520, Docs. 53; 72. O’Neal’s FELA claim was severed and has not
yet been tried.
The Plaintiffs, who are represented by the same counsel, now jointly move to
recover reasonable attorney’s fees and litigation costs for the FRSA claims. O’Neal,
5:16-CV-519, Doc. 88. 1 The Plaintiffs claim they are entitled to recover attorney and
paralegal fees in the amount of $452,953.50, after enhancement, and costs in the
amount of $20,920.94, for a total of $473,874.44. 2 See Doc. 88-1 at 5. The Defendant
disputes both the Plaintiffs’ requested rate and the reasonable hours worked. Doc. 93

1 Because the motions and briefings were jointly filed and are the same in each case, for the sake of
convenience, all citations are to the docket in O’Neal, 5:16-CV-519, unless otherwise noted.
2

The summary of fees and costs in the Plaintiffs’ brief correctly lists each item except for the total sum of
fees and costs, which is listed as $300 lower than it is. Doc. 88-1 at 5; see Doc. 93-1 at 1 n.1.

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at 8-9, 12-14. The Defendant also disputes the Plaintiffs’ requested multiplier of 1.33.
Id. at 14.
DISCUSSION
The FRSA allows a prevailing plaintiff to recover, among other relief,
“compensatory damages . . . including litigation costs, expert witness fees, and
reasonable attorney fees.” 49 U.S.C. § 20109(e)(2)(C). “The starting point for
determining the amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Bivins v. Wrap It Up,
Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (citation and quotation marks omitted). 3 This
number is called the “lodestar,” and “there is a strong presumption that the lodestar is
the reasonable sum the attorneys deserve.” Id. (citation and quotation marks omitted).
The district court should exclude “hours that were not reasonably expended,” such as
work that was “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart,
461 U.S. 424, 434 (1983). In determining whether a lodestar is reasonable, the district
court should consider twelve factors enumerated in Johnson v. Georgia Highway
Express, Inc.: (1) the time and labor required, (2) the novelty and difficulty, (3) the skill
required to perform the legal service properly, (4) the opportunity cost of the attorney’s
inability to work on other cases as a result of accepting this one, (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 of money at issue and the results obtained, (9) the

3 In Bivins, the district court had determined attorney’s fees under § 1988, not the FRSA. 548 F.3d 1348,
1350 (11th Cir. 2008). But the Supreme Court has observed that Congress generally patterns attorney’s
fees provisions of new statutes on those provisions of pre-existing statutes, and “[t]he standards set forth
in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to
a ‘prevailing party.’” Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (citations omitted).

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experience 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) attorney’s fee
awards in similar cases. 488 F.2d 714, 717-19 (5th Cir. 1974), 4 overruled on other
grounds by Blancher v. Bergeron, 489 U.S. 87 (1989); see also Blancher, 489 U.S. at
92 (“Johnson’s ‘list of 12’ thus provides a useful catalog of the many factors to be
considered in assessing the reasonableness of an award of attorney’s fees[.]”).
Downward adjustment of the lodestar is “merited only if the prevailing party was partially
successful in its efforts,” a determination the district court makes on a case-by-case
basis. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir.
1993). It is the burden of the party seeking an award of fees to submit evidence to
support the hours and rate claimed, and “[w]here the documentation of hours is
inadequate, the district court may reduce the award accordingly.” Hensley, 461 U.S. at
433.
The Plaintiffs’ counsel document their work in affidavits and attached time
entries. Docs. 88-3; 88-4; 88-5. The Defendant does not contest the availability of
attorney’s fees and costs. See generally Doc. 93. Rather, the Defendants claim the
Plaintiff’s request is unreasonable because (1) the requested rate of $450.00 per hour is
not adequately substantiated; (2) some of the time entries are for work solely
attributable to O’Neal’s claim under the Federal Employers’ Liability Act, which does not
allow for fee-shifting; (3) the Plaintiffs are not entitled to an enhancement; and (4) some
of the time entries from the paralegal are for work which is administrative and thus not
compensable. See generally id.

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The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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A. Rate
First, the Defendant argues the Plaintiff’s counsel’s rate of $450.00 per hour is
not reasonable. Id. at 5. “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 v. Hous. Auth. of City of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988) (citation omitted). “The party seeking attorney’s fees
bears the burden of producing satisfactory evidence that the requested rate is in line
with prevailing market rates.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)
(quotation marks and citation omitted). Satisfactory evidence is “more than the affidavit
of the attorney performing the work.” Id. (quotation marks and citation omitted).
Here, the Plaintiffs have produced an affidavit from local attorney Grant
Greenwood, who states that in the Macon area, the “prevailing rate in a complex civil
case” for an experienced senior partner who specializes in a particular area is $405.00
per hour, but may be higher in certain situations. Doc. 88-2 at 2. Both of the Plaintiffs’
lawyers, John Moss and John Steel, are experienced, with over 60 years of combined
practice and extensive experience in railroad litigation. Docs. 88-3 at 2; 88-4 at 2.
Further, the FRSA is a relatively novel and undeveloped area of law. Accordingly, the
Court finds that $405.00 per hour is a reasonable rate.
The Plaintiffs argue they are entitled to a rate of $450.00, in part because the
Defendant allegedly consented to that rate in a lawsuit in which Moss was counsel in
Greensboro, North Carolina, and in part because the issues are novel. Doc. 88-1 at 3.
They argue Greensboro is a similar legal community and is roughly the same size as
Macon. Id. However, the Plaintiffs have offered no evidence that $450.00 is a

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reasonable rate in “the relevant legal community,” which is the Macon Division of the
Middle District of Georgia. See Norman, 836 F.2d at 1299. They have, however,
carried their burden on showing $405.00 is in line with prevailing rates in the local
market, and the Court finds that rate is reasonable.
Additionally, the Plaintiffs’ affidavit from Grant Greenwood asserts that $150.00
per hour is the prevailing rate for an experienced paralegal. Doc. 88-2 at 2. The
paralegal for the Plaintiffs’ counsel in this case, Keisha Jackson, has shown she has
more than 20 years of experience in litigation, most of which has involved railroad
cases. Doc. 88-5. The Court finds that $150.00 per hour is in line with the local market
and that it is a reasonable rate.
B. Work Done on FELA Claim
The Court finds that the best way to determine the reasonableness of the
Plaintiffs’ request is to consider the specific hours expended on certain tasks. See
Bivins, 548 F.3d at 1350 (“When a district court finds the number of hours claimed is
unreasonably high, the court has two choices: it may conduct an hour-by-hour analysis
or it may reduce the requested hours with an across-the-board cut.”) (citation omitted).
As noted, Plaintiff O’Neal brought two claims: one under the FRSA, which allows
for fee-shifting, and one under the FELA, which does not. The Defendant argues the
Court should deduct time spent on the FELA claims. Doc. 93 at 10. The general rule is
that hours reasonably expended on litigating a claim are compensable. Bivins, 548
F.3d at 1350. Given the facts of this case, there is overlap between the FELA claim and
FRSA claim, since the Plaintiffs were terminated for reporting and allegedly lying about
the fall and hazardous safety condition which form the basis of O’Neal’s FELA claim.

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See Docs. 1; 81. As the Defendant notes, “‘[h]ours spent solely on . . . statutory claims
not subject to fee-shifting must be excluded to reflect the default rule that each party
must pay its own attorney's fees and expenses.’” Doc. 93 at 10 (quoting Millea v.
Metro-N. R. Co., 658 F.3d 154, 168 (2d Cir. 2011) (quotation marks and citation
omitted)). Conversely, “[h]ours spent on legal work that furthers both fee-shifting and
non-fee-shifting claims may be included in the lodestar calculation because they would
have been expended even if the plaintiff had not included non-fee-shifting claims in his
complaint.” Millea, 658 F.3d at 168; see also Barati v. Metro-N. R. Co., 939 F. Supp. 2d
153, 158 (D. Conn. 2013) (applying this rule to an award of fees under the FRSA when
the litigation also included FELA claims). The Court agrees and finds that attorney time
which was spent solely in furtherance of O’Neal’s FELA claim was not reasonably
expended on the Plaintiffs’ FRSA claims, and thus it is not compensable.
The Plaintiffs’ counsel claim they have not included any time solely related to the
FELA claim in their time entries. Specifically, Steel states he has not done any work
which related only to the FELA claims (Doc. 94-1 at 2), and Moss says the timesheet he
submitted (Doc. 88-3 at 12-17) excluded all work he had done exclusively on the FELA
claim. Doc. 94-6. However, some of the Plaintiffs’ time entries do include time
exclusively attributable to the FELA claim. For instance, Moss submitted an entry of 5.5
hours on November 17, 2017 for drafting a motion for summary judgment, billed to
O’Neal. 5 Doc. 88-3 at 13. That motion, which was filed on December 19, 2017, dealt
with issues of fact common among the FRSA and FELA claims (Doc. 15-1 at 1-4); with
the law of the FELA and its application to O’Neal’s negligence claim (Doc. 15-1 at 4-7);

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On the submitted timesheets, some entries are billed to O’Neal, some to Smith, and some to “Both.”
Docs. 88-3 at 12-17; 88-4 at 5; 88-5 at 4-5.

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and with the law of the FRSA and its application to O’Neal’s retaliation claim (Doc. 15-1
at 7-10). Even if the motion primarily concerned FRSA issues and issues common
among the claims—which are compensable—it also concerned at least some work
exclusively attributable to the FELA claim. It is the burden of the Plaintiffs’ counsel to
properly document compensable time. Hensley, 461 U.S. at 433. In the absence of
such documentation, therefore, the Court reduces the time reasonably spent on drafting
the motion for summary judgment by half, or 2.75 hours. Having carefully reviewed the
time entries and the record, the Court finds the following entries, including the motion for
partial summary judgment, should be reduced by half:
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
O'Neal
Both
O'Neal
O'Neal
O'Neal
Both

5.26.16
6.28.17
8.30.17
9.1.17
9.26.17
9.30.17
10.25.17
10.25.17
11.17.17
11.18.17
12.27.17
12.27.17
12.28.17
6.25.18
6.25.18
6.26.18
6.26.18
7.6.18

Meeting with P. O'Neal in Macon
Finalize & edit disco responses of O'Neal
Prepare for Client Deposition - O'Neal
Oneal Depo in Macon
TC re supplementing ROGS & RPD with O'Neal
Review Plaintiff O'Neal's Depo
Email w/M Madigan (expert) re analysis of D expert
Travel to MI, take expert depo, travel home
initial drafting of partial MSJ
Revise and add to MSJ
Read D MSJ / annotate
Legal research / D MSJ
1st draft of response to D MSJ
Travel to Macon for Stefanis
prep for stefanis depo
take Stefanis depo
ReturnTravel to Atlanta
Trial Prep, verdict forms, motions in limine, bifurcation research

2.5
2
3
5
1.5
1.5
0.4
12.5
5.5
2
1.25
2.6
6.1
1.75
0.6
0.7
1.4
1

JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM
JAM

Additionally, some entries appear exclusively relevant to O’Neal’s FELA claim in
their entirety or not sufficiently documented for the Court to determine whether they
related to FRSA claim. Those entries are: “Review D disco responses and compose
follow-up email deficiencies” (June 27, 2017); “Travel to Macon for witness work”
(September 29, 2017); “Meet with potential damage witnesses” (September 29, 2017);

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and “Return Travel to Atlanta” (September 29, 2017). All are billed exclusively to
O’Neal. Doc. 88-3 at 12-13. The Plaintiffs have failed to demonstrate those entries
were for time reasonably spent on the FRSA claim, so they are not compensable.
Taking those adjustments into account, John Moss reasonably spent 588.30 hours on
the FRSA claim, and John Steel reasonably spent 120.55 on the FRSA claim, for a total
of 708.85 attorney hours reasonably spent on the litigation.
C. Enhancement
The Plaintiffs also request an enhancement, asking the Court to adjust the
lodestar by a multiplier of 1.33. Doc. 88-1 at 5. While the lodestar is calculated at an
hourly rate, Moss and Steel have a contingent fee contract. Doc. 88-3 at 3. Where, as
here, “the attorney fee is contingent on success, the hourly rate should ordinarily be
raised to compensate the attorney for the risk of nonrecovery.” Carmichael v.
Birmingham Saw Works, 738 F.2d 1126, 1138 (11th Cir. 1984); see Yates v. Mobile
Cty. Pers. Bd., 719 F.2d 1530, 1533 (11th Cir. 1983) (stating that contingency fees often
result in enhancements). Additionally, the Plaintiffs’ counsel attained a high degree of
success. See O’Neal, 5:16-CV-519, Doc. 81; Smith, 5:16-CV-520, Doc. 72. These
factors warrant an upward adjustment of the lodestar. After careful review of the record
and consideration of the Johnson factors, the Court agrees with the requested
enhancement of 1.33 and awards reasonable attorney’s fees of $381,822.05 (708.85
hours at a rate of $405.00 per hour with an enhancement of 1.33).
D. Keisha Jackson’s Time
The Defendant also challenges time entries from Keisha Jackson, a paralegal for
the Plaintiffs’ counsel, as administrative or clerical. Doc. 93 at 13. “Fees for paralegal

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work are recoverable to the extent that the paralegal performs work traditionally done by
an attorney.” Gowen Oil Co. v. Abraham, 511 F. App'x 930, 936 (11th Cir. 2013). After
carefully reviewing Jackson’s time entries, the Court has found that entries for purely
clerical work, such as e-filing or emailing documents, is not compensable. See Doc. 885 at 4-5.
The Defendant also claims that some entries are inaccurate, pointing to an entry
on November 15, 2017, for serving a response to a first request for admissions. Doc.
93 at 14. As the Defendant notes, that was actually served on June 28, 2017. Id.; Doc.
93-8 at 4. The Court agrees and finds that the November 15, 2017 entry is not
compensable. The Defendant also argues one entry, “Draft and serve 2nd Amended
30(b)(6) Depo Notice,” is redundant, as there are two entries for drafting and serving a
second amended deposition notice on the same day, July 27, 2018. Doc. 93 at 14.
However, because one notice is billed to both Plaintiffs and the other to O’Neal only,
and because the wording differs, the two entries do not appear to be duplicates. See
Doc. 88-5 at 5. After reductions for purely administrative tasks and for the inaccurate
entry on November 15, 2017, the Court finds that the Plaintiffs are entitled to
compensation for 61.70 hours of Keisha Jackson’s time. At a rate of $150.00 per hour,
this produces fees for Jackson’s time of $9,255.00.
E. Expenses of Litigation
The Defendant argues that expenses relating to medical records should be nonrecoverable. Doc. 93 at 16-17 (challenging $407.94 of expenses for O’Neal’s records
and $97.07 for Smith’s). Presumably, the Defendant is arguing that O’Neal’s records
are only relevant to the FELA claim, because that claim concerns damages from

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O’Neal’s workplace injury, while the FRSA claim does not. The Defendant also argues
that Smith has not proved why medical records were relevant to his FRSA case. Doc.
93 at 17. However, the question of whether the Plaintiffs reported O’Neal’s workplace
injury in good faith is clearly relevant to the FRSA claim. See, e.g., Doc. 81 at 3. And
whether O’Neal was injured is relevant to that—or, at the least, the Defendant made it
relevant. See, e.g., Doc. 17-1 at 8-9 (arguing the Defendant was entitled to summary
judgment on the FRSA claim in part because O’Neal’s injury was not genuine). As to
Smith’s medical expenses, there was, presumably, at least a possibility that his medical
records might relate to damages under the FRSA. There was certainly enough of a
possibility that Smith’s medical records would be relevant to justify the Plaintiffs’
expenditure of $97.07 as reasonable. The Court, therefore, finds the Plaintiffs’
requested litigation expenses of $20,920.94 to be reasonable.
CONCLUSION
For the reasons noted above, the Plaintiffs’ joint motion for attorney’s fees (5:16CV-519, Doc. 88; 5:16-CV-520, Doc. 79) is GRANTED in part and DENIED in part.
The Plaintiffs are entitled to recover reasonable attorney’s fees in the amount of
$391,077.05 ($381,822.05 for Moss’s and Steel’s time and $9,255.00 for Jackson’s
time). The Plaintiffs are also entitled to recover reasonable litigation costs in the
amount of $20,920.94. Accordingly, the Defendant is ORDERED to pay the Plaintiffs
$411,997.99.
SO ORDERED, this 15th day of November, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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