Moore v. Medows

Filing 259

ORDER granting 240 Motion for Attorney Fees in the amount of $592.148.31. Signed by Judge Thomas W. Thrash, Jr on 10/31/12. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ANNA C. MOORE
a minor child, by and through her
mother and natural guardian Pamela
Moore,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:07-CV-631-TWT

DAVID A. COOK
in his official capacity as
Commissioner of the Department of
Community Health,
Defendant.

ORDER

This is an action against David A. Cook, in his official capacity as
Commissioner of the Georgia Department of Community Health, for violating the
Medicaid Act. It is before the Court on the Plaintiff’s Motion for Attorneys’ Fees and
Expenses [Doc. 240]. For the reasons set forth below, the Court GRANTS the
motion. The Clerk is directed to enter a supplemental judgment in favor of the
Plaintiff against the Defendant in the amount of $592,148.31 and for post judgment
interest at the legal rate from April 20, 2012.

I. Background
The Plaintiff Anna C. Moore is a seventeen year old Medicaid beneficiary
living in her family’s home in Danielsville, Georgia. Due to a stroke she experienced
in utero, the Plaintiff is severely disabled and suffers from a host of chronic
conditions, including spastic quadriplegic cerebral palsy, refractory seizure disorder,
mental retardation, gastroesophageal reflux disease, cortical blindness, dysphagia,
bone cartilage disease, scoliosis, kyphosis, and restrictive lung disease. (Compl. ¶ 8.)
In summary, she “has severe physical disabilities including spinal deformities in two
directions, she is blind and non-verbal, she has seizures that are difficult to control
with multiple medications, she has difficulty swallowing even her own saliva, she has
difficulties with breathing consistently, she is cognitively impaired, and she has a host
of other physical manifestations and medical complications as a result of the damage
in her brain.” (Id., ¶ 9.) She requires around the clock monitoring, care and treatment.

Since 1998, when she was three years old, the Plaintiff has received Medicaidfunded nursing services from Georgia’s Department of Community Health (“the
Department”) and its predecessor agencies. Under the Medicaid Act, a participating
state is required to provide certain categories of care to eligible children, including
early and periodic screening, diagnostic and treatment services (“EPSDT”). In
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Georgia, a child who is enrolled as a member of the Georgia Pediatric Program1 is
eligible to receive private duty nursing services.2 While the Plaintiff has been enrolled
in the Georgia Pediatric Program, the Department has approved her to receive private
duty nursing services in her home. On November 15, 2006, the Department notified
the Plaintiff that her hours of approved skilled nursing services were being reduced
from 94 to 84 hours per week effective December 7, 2006. Through her mother, she
immediately appealed this reduction, and a hearing was scheduled. The day before
the hearing, however, she withdrew her request and filed this section 1983 action,
seeking declaratory and injunctive relief against the Department. She claims that the
Department’s policies conflict with the EPSDT provisions in the Medicaid Act and
violate the Constitution. This Court granted partial summary judgment to Moore, and
the United States Court of Appeals for the Eleventh Circuit reversed the decision and
remanded the case. This Court granted summary judgment to Moore a second time,
and the United States Court of Appeals for the Eleventh Circuit reversed the decision

1

This is a Georgia Medicaid program that provides continuous skilled nursing
care to medically fragile children.
2

Private duty nursing service is defined as “nursing services for recipients who
require more individual and continuous care than is available from a visiting nurse or
routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42
C.F.R. § 440.80. These services are provided by a registered nurse or nurse
practitioner under the direction of the recipient’s physician at either the recipient’s
home, a hospital, or a skilled nursing facility. Id.
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and remanded the case again. This Court then held a trial after which it entered a
declaratory judgment in favor of the Plaintiff, stating that the reduction of her skilled
nursing hours from 94 per week to 84 per week was a violation of the Medicaid Act
enforceable under 42 U.S.C. § 1983, and denied the Plaintiff’s request for injunctive
relief as moot [Doc. 239]. On July 13, 2012, the Plaintiff filed this Motion for
Attorneys’ Fees and Expenses [Doc. 240].
II. Discussion
42 U.S.C. § 1988 provides that “[i]n any action or proceeding to enforce a
provision of section[]...1983..., the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney's fee as part of the costs...”
42 U.S.C. § 1988(b). Like other fee shifting statutes, the statute is interpreted broadly
because it is remedial in nature and facilitates private enforcement of civil rights.
Williams v. City of Fairburn, Ga., 702 F.2d 973, 976 (11th Cir. 1983). Although
awarding attorney’s fees is within the discretion of the trial court, such discretion is
a narrow one in that attorney’s fees should be denied only when special circumstances
would render an award unjust, Solomon v. City of Gainesville, 796 F.2d 1464, 1466
(11th Cir. 1986), or the statute is being subverted into a ruse for providing “windfalls”
to attorneys. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1192 (11th Cir.
1983). Importantly, one need not succeed on all claims in order to obtain attorney’s
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fees. Solomon, 796 F.2d at 1466-67.
A.

Prevailing Party

A party is not a prevailing party if it only “conceivably could benefit” from the
court’s judgment. Barnes v. Broward County Sheriff’s Office, 190 F.3d 1274, 1278
(11th Cir. 1999). There must exist evidence that the court’s judgment “materially
alters the legal relationship between the parties by modifying the defendant’s behavior
in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-112
(1992). Thus, a party that succeeds on the merits nonetheless is not a prevailing party
for the purpose of attorney’s fees if it does not directly benefit from the court’s order
at the time it is rendered. See Hewitt v. Helms, 482 U.S. 755, 763-64 (1987) (noting
that plaintiff was not prevailing party because he did not directly benefit from final
judgment at the time it was entered). To be a prevailing party for purposes of
attorney’s fees, the plaintiff “need only prevail on one significant issue.” Ruffin v.
Great Dane Trailers, 969 F.2d 989, 992-93 (11th Cir. 1992). The Plaintiff is the
prevailing party in this action. As a result of the litigation, her nursing hours were
maintained at 94 hours per week over the course of five and one half years of
litigation. She succeeded when the Court entered a declaratory judgment that the
reduction of her skilled nursing hours from 94 to 84 per week was a violation of the
Medicaid Act. This was a significant issue–it was the primary basis for the Plaintiff’s
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suit. (See Compl.) Therefore, with this threshold met, the Court now turns to the task
of calculating a reasonable attorney’s fees award.
B.

The Lodestar Amount

The Plaintiff seeks a total attorney’s fee award of $602,348.31, which consists
of $591,591.50 for attorney’s fees and $10,756.81 in expenses. This represents a
reduction of $14,952.50 in fees and $1,293.26 in expenses in response to the
Defendant’s objections. The Defendant opposes the motion. The Defendant argues
that this Court should reduce the Plaintiff’s request for attorney’s fees on several
grounds, which are discussed below.
In Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983), and Blum v. Stenson,
465 U.S. 886, 896-97 (1984), the Supreme Court established the framework and
methodology for calculating the amount of a reasonable attorney’s fee award. The
starting point for calculating reasonable attorney’s fees is “the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate” for the
attorney’s services. Hensley, 461 U.S. at 433; Blum, 465 U.S. at 897; accord ACLU
of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999). This produces the “lodestar”
amount. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 563 (1986). After the lodestar is determined by multiplication of a reasonable
hourly rate times hours reasonably expended, the court must next consider the
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necessity for an adjustment based upon the 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. Norman v. Housing Authority of City of Montgomery, 836 F.2d
1292, 1302 (11th Cir. 1988).
The fee applicant is the party that “bears the burden of establishing entitlement
and documenting the appropriate hours and hourly rates.” Id. at 1303; ACLU v.
Barnes, 168 F.3d at 427; accord Coastal Fuels Marketing, Inc. v. Florida Exp.
Shipping Co., Inc., 207 F.3d 1247, 1252 (11th Cir. 2000).
That burden includes supplying the court with specific and detailed
evidence from which the court can determine the reasonable hourly rate.
Further, fee counsel should have maintained records to show the time
spent on the different claims, and the general subject matter of the time
expenditures ought to be set out with sufficient particularity so that the
district court can assess the time claimed for each activity. . . . A wellprepared fee petition also would include a summary, grouping the time
entries by the nature of the activity or stage of the case.
ACLU v. Barnes, 168 F.3d at 427 (quotation marks and citations omitted). These
obligations of the fee applicant are especially important in cases where the applicant
has only partially succeeded in the suit. Hensley, 461 U.S. at 437.
Similarly, a party opposing a fee application also has obligations.

Its

objections and proof must be specific and “reasonably precise.” Id. at 428. When the
parties fulfill their obligations, this assists the court in fulfilling its duty to render an
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order that articulates both its decisions and reasons for the decisions, thus allowing for
meaningful appellate review. Id. at 428-29; see also Coastal Fuels, 207 F.3d at 1252
(“[W]e have said that a court’s order on attorney’s fees must allow meaningful
appellate review.”); NAACP v. City of Evergreen, Ala., 812 F.2d 1332, 1335 (11th
Cir. 1987) (“A prerequisite for our review of an attorney’s fee award is that the district
court’s opinion must have explained the reasons for the award with ‘sufficient clarity
to enable an appellate court to intelligently review the award.’”).
1.

Reasonable Hourly Rate

“[T]he starting point in any determination for an objective estimate of the value
of a lawyer's services is to multiply hours reasonably expended by a reasonable hourly
rate.” Norman, 836 F.2d at 1299. Reasonable hourly rates are to be measured by the
“prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886,
895 (1984). Prevailing market rates are those rates that are in line with those
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation. Id. at 895 & n.11; ACLU v. Barnes, 168 F.3d at 436.
The applicant attorney’s customary billing rate for fee-paying clients ordinarily is the
best evidence of his market rate, although that information is not necessarily
conclusive. Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir. 2000)
(“What [the attorney] charges clients is powerful, and perhaps the best, evidence of
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his market rate; that is most likely to be what he is paid as ‘determined by supply and
demand.’”); see also National Ass’n of Concerned Veterans v. Secretary of Defense,
675 F.2d 1319, 1325 (D.C. Cir. 1982) (“The best evidence would be the hourly rate
customarily charged by the affiant himself or by his law firm.”). A fee applicant also
may provide opinion evidence of reasonable rates, which is commonly done by
submitting affidavits of other attorneys in the relevant legal community. Duckworth
v. Whisenant, 97 F.3d 1393, 1396-97 (11th Cir. 1996). Finally, the court may utilize
its own personal experiences and expertise to assess the lawyering skills exhibited
during the pendency of the case. Id. at 1397 (“This court has also been given ample
opportunity to assess the lawyering of this case for the Plaintiff.”). But the court
cannot simply substitute its own judgment for uncontradicted evidence without an
explanation and record support. NAACP v. City of Evergreen, Ala., 812 F.2d 1332,
1334-36 (11th Cir. 1987).
The Plaintiff’s counsel are Joshua Norris and Paula Miller of the Georgia
Advocacy Office, and Gerald Weber. They have submitted affidavits to support the
hourly rates claimed in the motion as commensurate with counsel’s billing rates for
similar cases. (Fleming Decl. ¶ 20; Miller Decl. ¶ 6; Weber Decl. ¶ 3.) They have
also submitted the affidavit of an experienced attorney in Atlanta, who has testified
that the hourly rates are reasonable. (Fleming Decl. ¶ 20.) The Plaintiff’s counsel
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request an hourly rate of $400 for Paula Miller, $290 and $330 for Joshua Norris, and
$475 for Gerald Weber. The Defendant argues that it is unreasonable for Paula Miller
to be given a higher rater than her supervisor, Joshua Norris, who is the Director of
Legal Advocacy. (Def.’s Br. in Opp’n to Pl.’s Mot. for Attorneys’ Fees, at 21.) The
Defendant requests that Paula Miller’s rate be reduced to $330 per hour. (Id.) The
Court is not inclined to penalize the Plaintiff’s counsel for requesting a lower hourly
rate for another lawyer by engaging in such a comparison.3 Judged on her own
experience, reputation, and ability, Paula Miller’s requested hourly rate of $400 per
hour is reasonable. (Miller Decl. ¶¶ 2-5.) The Defendant offers no expert evidence to
support his claim that Ms. Miller’s hourly rate is unreasonable. The hourly rates
claimed in the motion are deemed reasonable.
2.

Reasonable Hours

“Fee applicants must exercise what the Supreme Court has termed ‘billing
judgment.’” ACLU v. Barnes, 168 F.3d at 428. This means that “[c]ounsel for the
prevailing party should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary” because, for example, the
case is overstaffed. Hensley, 461 U.S. at 434. Work performed by multiple attorneys,

3

If the Court were inclined to compare the relative experience of Paula Miller
and Joshua Norris, it would find that the former has been a lawyer for nine more years
than the latter. (Miller Decl. ¶ 2; Norris Decl. ¶ 3.)
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however, is not subject to reduction where the attorneys were not unreasonably doing
the same work. Jones v. Central Soya Co., 748 F.2d 586, 594 (11th Cir. 1984);
Johnson v. University College of University of Alabama, 706 F.2d 1205, 1208 (11th
Cir. 1983).
As to the work performed, compensable activities include pre-litigation services
in preparation of filing the lawsuit, background research and reading in complex
cases, productive attorney discussions and strategy sessions, negotiations, routine
activities such as making telephone calls and reading mail related to the case,
monitoring and enforcing the favorable judgment, and even preparing and litigating
the request for attorney’s fees. See City of Riverside v. Rivera, 477 U.S. 561, 573 n.6
(1986) (allowing compensation for productive attorney discussions and strategy
conferences); Webb v. Board of Educ. of Dyer County, Tenn., 471 U.S. 234, 243
(1985) (allowing compensation for pre-litigation services in preparation of suit); Cruz
v. Hauck, 762 F.2d 1230, 1233-34 (5th Cir. 1985) (allowing compensation for
preparing and litigating fee request); Adams v. Mathis, 752 F.2d 553, 554 (11th Cir.
1985) (holding that measures to enforce judgment are compensable); New York State
Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 & n.5 (2d Cir. 1983)
(allowing compensation for background research and reading in complex cases);
Brewster v. Dukakis, 544 F. Supp. 1069, 1079 (D. Mass. 1982) (compensating for
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negotiation sessions), aff’d as modified, 786 F.2d 16, 21 (1st Cir. 1986). Reasonable
travel time of the prevailing party’s attorneys ordinarily is compensated on an hourly
basis, although the rate may be reduced if no legal work was performed during travel.
Johnson, 706 F.2d at 1208. As with attorneys’ work, the hours expended by
paralegals, law clerks, and other paraprofessionals are also compensable to the extent
these individuals are engaged in work traditionally performed by an attorney.
Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989); Jean v. Nelson, 863 F.2d
759, 778 (11th Cir. 1988). In short, “with the exception of routine office overhead
normally absorbed by the practicing attorney, all reasonable expenses incurred in case
preparation, during the course of litigation, or as an aspect of settlement of the case
may be taxed as costs under section 1988” and “the standard of reasonableness is to
be given a liberal interpretation.” NAACP v. City of Evergreen, Ala., 812 F.2d 1332,
1337 (11th Cir. 1987) (quoting Dowdell v. City of Apopka, Florida, 698 F.2d 1181,
1192 (11th Cir. 1983)).
The Eleventh Circuit has stated that its decisions regarding attorney’s fees
“contemplate a task-by-task examination of the hours billed” and that applicants
should “show the time spent on the different claims.” ACLU v. Barnes, 168 F.3d at
427, 429. The Eleventh Circuit has also stated that where a fee application and
supporting documents are voluminous, a district court is not required to engage in an
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hour-by-hour analysis of the fee award. Loranger v. Stierheim, 10 F.3d 776, 783
(11th Cir. 1994). In such cases, it is sufficient for the district court to determine the
total number of hours devoted to the litigation and then reduce that figure by an
across-the-board percentage reduction if such a reduction is warranted. Id. The
Eleventh Circuit has even intimated that such a method may be the preferred course
with a voluminous fee request to avoid waste of judicial resources. Id. The Supreme
Court has also stated:
The district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited
success. The court necessarily has discretion in making this equitable
judgment. This discretion, however, must be exercised in light of the
considerations we have identified.
Hensley, 461 U.S. at 436-37; accord Popham v. City of Kennesaw, 820 F.2d 1570,
1579-81 (11th Cir. 1987) (“[T]he Supreme Court explicitly stated that a court could
simply reduce the award to account for the plaintiff’s limited success instead of
eliminating hours specifically expended on unsuccessful claims.”).
The supporting documentation filed by the Plaintiff’s counsel is very detailed,
breaking down performed tasks into increments as small as fifteen minutes. The
Plaintiff provides several affidavits supporting its fee application, while the Defendant
provides only briefing in response.
The fee application and supporting documents are voluminous, with Miller
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requesting 1096.7 hours, Norris requesting 481.55 hours, and Weber requesting 40.3
hours after self-imposed downward adjustments in response to the Defendant’s
objections. (Pl.’s Reply Br., at Ex. C.) After reviewing the Plaintiff’s counsel’s
declarations and affidavits, and the briefs, the Court finds that the hours claimed by
the Plaintiff’s counsel are mostly reasonable, and a substantial downward adjust is
unwarranted. The Court will address each area of contention and explain its reasoning
below:
a.

Vague and Noncompensable Entries

The Court finds that the Plaintiff’s counsel’s time sheets are detailed and
comprehensive. There are some hours listed that are noncompensable, but these are
also very few, and the Plaintiff’s counsel have agreed to reduce them. These include
administrative functions such as copying Department documents, which the Plaintiff
agreed to eliminate. (Miller Decl., Ex. B, at 24); (Pl.’s Reply Br., at 7.) The hours
that the Plaintiff’s counsel spent strategizing with outside counsel on relevant issues
are compensable. See Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 392
(S.D.N.Y. 2000). However, 16.5 hours for “analysis of prior OSAH actions involving
Callie” by Ms. Miller are noncompensable and the fee request should be reduced by
$6,600.00.
b.

Excessive Hours
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To enable the Court to calculate the lodestar, the movant must demonstrate not
only that the claimed hours were actually expended, but also that the applicant has
exercised “billing judgment” and made a good faith effort to exclude from a fee
request any hours that are excessive, redundant, or otherwise unnecessary, just as a
lawyer in private practice is ethically obligated to exclude such hours from his fee
submission to his client. Hensley, 461 U.S. at 440. Thus, the Plaintiff’s counsel were
required to exclude those hours from their fee application “that would be unreasonable
to bill a client and therefore to one’s adversary irrespective of the skill, reputation or
experience of counsel.” Norman, 836 F.2d at 1301. When determining whether the
Plaintiff’s counsel claimed excessive hours, the Plaintiff’s counsel’s “[s]worn
testimony that, in fact, it took the time claimed is evidence of considerable weight on
the issue of the time required in the usual case and therefore, it must appear that the
time claimed is obviously and convincingly excessive under the circumstances.”
Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988).
The Defendant has not shown that any of the Plaintiff’s entries were obviously
and convincingly excessive. The Defendant presents no affidavits to support his
contention that various entries were excessive. The Defendant does point out two
entries that on the surface appear excessive. First, the Plaintiff’s counsel state that
they spent 60.4 hours drafting the jointly-drafted pre-trial order. (Miller Decl., Ex. B,
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at 6; Miller Decl., Ex. C, at 4-5.) Second, the Plaintiff’s counsel also claim that they
spent 8.9 hours preparing for a thirty minute status conference. (Miller Decl., Ex. B,
at 2.) Yet, after reviewing the Plaintiff’s explanation for these hours, the Court finds
that they are not obviously excessive. (Pl.’s Reply Br., at 10-11.) The claim for 9
hours for Ms. Miller to “meet Callie” is excessive and the fee request should be
reduced by $3,600.00.
c.

Complaint and Amended Complaint

The Plaintiff’s counsel seek 62.5 hours associated with the initial pleadings, and
10.75 hours associated with drafting the Amended Complaint. The Court dismissed
the Supremacy Clause claim in the Complaint [Doc. 15]. Some claims in the
Amended Complaint were unsuccessful because the Plaintiff did not make a specific
request for relief [Doc. 132]. Yet, these claims involved “a common core of facts”
and “[m]uch of counsel’s time [was] devoted to the case as a whole...such a lawsuit
cannot be viewed as a series of discrete claims.” Hensley v. Eckerhart, 461 U.S. 424,
435 (1983). These claims were not “distinct in all respects” from the successful
claims. Id. at 440. Therefore, “the district court should focus on the significance of
the overall relief obtained by the plaintiff in relation to the hours reasonably expended
on the litigation.” Id. at 435. “[T]he fee award should not be reduced simply because
the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in
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good faith may raise alternative legal grounds for a desired outcome, and the court’s
rejection of or failure to reach certain grounds is not a sufficient reason for reducing
a fee. The result is what matters.” Id. In this case, the Court granted the Plaintiff a
declaratory judgment that the reduction of her skilled nursing hours from 94 per week
to 84 per week was a violation of the Medicaid Act enforceable under 42 U.S.C. §
1983 [Doc. 236]. The Court granted the Plaintiff the substantial relief she requested
because she established by a preponderance of the evidence that the 94 private duty
nursing hours are medically necessary. The only reason that injunctive relief was
denied was that the litigation had dragged on for so long that such relief could not be
granted without a current evaluation of her condition and needs. The Court will not
reduce the award of attorney’s fees for time spent on related arguments and claims.
d.

Second Motion for Preliminary Injunction

The Plaintiff’s counsel claim approximately 56.25 hours related to the
preparation of the Second Motion for Preliminary Injunction or Temporary
Restraining Order. The purpose of the motion was to keep Callie’s nursing hours at
94 hours per week during the litigation. The Defendant claims that he agreed to keep
the nursing hours for Callie at 94 per week, yet the Plaintiff insisted on having the
injunction hearing regardless [Doc. 36]. The Plaintiff claims that the Defendant never
offered to keep the Plaintiff’s hours in place while litigation was ongoing until that
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representation was made in open court during the hearing on the Second Motion for
Preliminary Injunction. (Second Miller Decl. ¶ 13; Pl.’s Reply Br., at 15.) The
Defendant has not provided the Court with any factual evidence to support his
assertion, so the Court will not deduct time for the motion.
e.

Fees Related to Depositions

The fees associated with depositions necessarily obtained for use in the case are
properly charged to the Defendant. “A deposition taken within the proper bounds of
discovery...will normally be deemed to be ‘necessarily obtained for use in the case,’
and its cost will be taxed unless the opposing party interposes a specific objection that
the deposition was improperly taken or unduly prolonged.” Fulton Federal Sav. &
Loan Ass’n of Atlanta v. American Ins. Co., 143 F.R.D. 292, 296 (N.D. Ga. 1991).
“However, deposition costs incurred merely for the convenience of a party or a party’s
attorney, for purposes of investigation, or simply to aid in thorough preparation are
not taxable.” Id. The Court finds that the depositions of Cynthia Price, Agartha
Russell, and Mark Trail were necessarily obtained for use in the case. The Court finds
the Plaintiff’s counsel’s defense of these depositions to be persuasive. (Second Miller
Decl. ¶¶ 14-16.)

f.

Motion for Extension of Time to Complete Discovery
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The Plaintiff filed a motion for extension of time to complete discovery; the
Defendant contends that this motion was unnecessary as the Plaintiff did not conduct
any further discovery after obtaining the extension [Doc. 58]. However, the Plaintiff’s
counsel contends that she received documents under seal as a result of the extended
discovery. (Second Miller Decl. ¶ 18.)
3.

Adjustment to the Lodestar

Once the lodestar is obtained, the court may then adjust it upwards or
downwards. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Blum v. Stenson, 465
U.S. 886, 897 (1984); ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999);
Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir.
1988). The Supreme Court and Eleventh Circuit have stated that while the adjustment
may be based on a number of factors, the most important factor is the results obtained.
Hensley, 461 U.S. at 434; Norman, 836 F.2d at 1302. The Supreme Court has
warned, however, that upward adjustments are rarely warranted because the factors
on which a prevailing party typically seeks an enhancement already have been
considered by the court in determining the reasonable hourly rate:
Expanding on our earlier finding in Hensley that many of the Johnson
factors “are subsumed within the initial calculation” of the lodestar, we
specifically held in Blum that the “novelty [and] complexity of the
issues,” “the special skill and experience of counsel,” the “quality of
representation,” and the “results obtained” from the litigation are
presumably fully reflected in the lodestar amount, and thus cannot serve
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as independent bases for increasing the basic fee award.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565
(1986).
The Plaintiff does not request an upward adjustment to the lodestar, nor does
the Court believe that an upward adjustment would be appropriate. The results
obtained, as one of the Johnson factors, normally will be subsumed in the calculation
of a reasonable fee and, therefore, usually should not provide an independent basis for
increasing the fee award. Blum v. Stenson, 465 U.S. 886, 900 (1984); accord NAACP
v. City of Evergreen, Ala., 812 F.2d 1332, 1337 (11th Cir. 1987). The Defendant’s
arguments for a reduction in the award of attorney’s fees, which were rejected, were
properly considered in the above sections determining the lodestar as the product of
the reasonable hourly rate and reasonable hours. A downward adjustment to the
lodestar is not appropriate.
C.

Reasonable Expenses

The Plaintiff is entitled to recover all reasonable and necessary expenses.
Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983). With respect to
expenses, “the standard of reasonableness is to be given a liberal interpretation.” Id.;
Loranger v. Stierheim, 3 F.3d 356, 363, vacated on other grounds, 10 F.3d 776 (11th
Cir. 1994). The Defendant objects to the $114.95 charge for court reporter fees,
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$828.31 charge for copies of deposition exhibits and copies of documents for
Department discovery, and $350.00 charge for extra costs associated with subpoenas.
The Plaintiff has agreed to eliminate these expenses, and the requested expenses figure
of $10,756.81 reflects this reduction. The Defendant also objects to deposition costs
associated with such items as the cost of expediting transcripts, word indexes, ASCII
disks, condensed manuscripts, and transcript binders. The Court agrees with the
Plaintiff that these deposition costs are reasonable, consistent with normal billing
practices, and not obviously excessive.
III. Conclusion
For the reasons set forth above, the Plaintiff’s Motion for Attorneys’ Fees and
Expenses [Doc. 47] is GRANTED in the amount of $592,148.31. The Clerk is
directed to enter a supplemental judgment in favor of the Plaintiff against the
Defendant in this amount and for post judgment interest at the legal rate from April
20, 2012. See Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 794, 799
(11th Cir. 1988).

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SO ORDERED, this 31 day of October, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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