Heyne v. American Pancake House et al
Filing
140
OPINION AND ORDER ENTERING FINAL JUDGMENT on 108 jury's verdict and finds that Defendants Nick Kladis and Nick's American Pancake & Cafe, Inc. (a/k/a American Pancake House), are jointly and severally liable for payment as set forth in th is Opinion and Order; and DENYING 116 Motion for Permanent Injunction; GRANTING IN PART AND DENYING IN PART 119 Motion for Attorney Fees; DENYING 122 Rule 12(f) Motion to Strike ; DENYING 123 Rule 12(f) Motion to Strike ; DENYING 137 Motion for Permanent Injunction; DENYING 138 Motion for Permanent Injunction; DENYING 139 Rule 56 Motion to Strike ; DENYING 139 Rule 12(f) Motion to Strike. Signed by Judge Jon E DeGuilio on 11/5/2013. (lyb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANGELA HEYNE, et al.,
Plaintiffs,
v.
NICK’S AMERICAN PANCAKE AND
CAFÉ, INC. and NICK KLADIS,
Defendants.
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Case No. 3:11-CV-305 JD
OPINION and ORDER
On August 1, 2011, Plaintiffs Angela Heyne, Angela King, and Stacey DeVreese filed a
complaint [DE 1], thereafter amended on September 16, 2011 [DE 12] and December 7, 2011
[DE 27] to omit class action allegations and to dismiss Defendants Jim Kladis and Zoi Kladis
from the lawsuit. Plaintiffs alleged approximately twenty federal and state claims against their
former employer Defendant Nick Kladis, as the owner and operator of Defendant Nick’s
American Pancake and Café, Inc. a/k/a American Pancake House involving discrimination,
harassment, and retaliation under 42 U.S.C. § 1981, 42 U.S.C. § 2000(e) and Indiana law, as well
as state law claims for assault, battery, negligent infliction of emotional distress, intentional
infliction of emotional distress, and violation of Indiana Food Safety Standards [DE 27]1.
Ultimately, only fourteen of those claims were presented to the jury [DE 108]. Specifically, each
plaintiff sought compensatory and punitive damages under Title VII for sexual harassment and
under state law for claims of assault, battery, and intentional infliction of emotional distress
(IIED). Id. In addition, Angela King claimed she was retaliated against in February 2010 when
1
It is unclear exactly how many claims were initially asserted against defendants given the ambiguity of the
allegations in the second amended complaint, however several claims were withdrawn prior to trial.
she was terminated for reporting sexual harassment and Stacey DeVreese claimed she was
discriminated against in November 2010 when she was terminated because she was pregnant. Id.
The case was transferred to the undersigned shortly before trial. At trial, the plaintiffs
themselves asked the jury during direct examination to award them the amount they felt was
appropriate given the evidence presented, but during closing arguments, plaintiffs’ counsel
specifically requested $675,000 in damages or $225,000 for each plaintiff (including punitive
damages).
After the four day trial, the jury determined that Defendant Nick Kladis had both
ownership and control over Defendant Nick’s American Pancake and Café, Inc. at the times of
the alleged offenses such that both defendants could be held liable [DE 108]. Relative to the
plaintiffs’ claims, the jury concluded that Stacey DeVreese failed to prove any of her claims. Id.
Angela Heyne succeeded on all of her claims, but the jury awarded no damages whatsoever for
her claims of assault and IIED, and gave her a punitive damages award of $10,000 for her Title
VII sexual harassment claim and a punitive damages award of $2,000 for her battery claim. Id.
The jury found Angela King failed to prove sexual harassment, assault, or IIED, but found that
King successfully proved both her Title VII retaliation claim resulting in a $10,000 punitive
damages award and her claim for battery resulting in a $2,000 punitive damages award. Id.
In sum, plaintiffs were successful on six of fourteen claims sent to the jury, representing
an approximate success rate of 43%. Stacey DeVreese received nothing, while both Angela
Heyne and Angela King each received $12,000 in punitive damages and zero compensatory
damages. Ultimately, their total award of $24,000 equals only 3.5% of the total relief requested
from the jury.
2
After the jury’s verdict, the parties filed various briefs and motions in support of their
positions relative to the award of attorneys’ fees, costs, and other relief, and these submissions
have all been considered by the Court [DE 116-125; DE 128-132; DE 134; DE 136-139]. In
addition, the Court held an evidentiary hearing on damages [DE 133], during which counsel
were given an opportunity to state their respective positions. During that hearing, many
agreements were reached relative to the proper calculation of damages, including back pay, and
those agreements are incorporated herein.
I.
Punitive Damage Awards
No one contests the punitive damages awarded by the jury. The jury awarded Heyne and
King each $2,000 in punitive damages on their respective battery claim. See e.g., Fall v. Indiana
University Bd. of Trustees 33 F.Supp.2d 729, 741-42 (N.D. Ind. 1998) (noting that under
Indiana law, punitive damages for assault and battery must be supported by clear and convincing
evidence, and the evidence must establish that the defendant acted with malice, fraud, gross
negligence, or oppression which did not result from mistake of law or fact, honest error of
judgment, over-zealousness, mere negligence or other human failing). The parties have agreed
that under state law the punitive damage awards are split as directed under Ind. Code 34-51-3-6.
That is, 25% goes to the successful plaintiff, while 75% goes to the victims compensation fund.
The Court previously advised the parties that it would reduce any punitive damages award after
the verdict [DE 96], and therefore Angela Heyne and Angela King shall each receive $500 plus
post judgment interest for their respective successful battery claim, while the remaining $1,500
plus post judgment interest on each claim shall be paid to the victims compensation fund.
3
Accordingly, Defendants Nick Kladis and Nick’s American Pancake Café, Inc. are
jointly and severally liable for the payment of $4,000 plus post judgment interest in punitive
damages on the state law claims of battery to the clerk of the court, Ind. Code 34-51-3-6(b). The
clerk of the court is DIRECTED to pay Angela Heyne and Angela King each 25% of their
individual punitive damage award of $2,000 plus post judgment interest, and deposit the
remaining 75% of each of the awards into the violent crime victims compensation fund
established by Ind. Code 5-2-6.1-40, pursuant to Ind. Code 34-51-3-6(c).
Further, no one contests the individual awards of $10,000 for Heyne’s verdict on her
Title VII sexual harassment claim and King’s verdict on her Title VII retaliation claim. See 42
U.S.C. § 1981a(b)(1) (indicating that a complaining party may recover punitive damages under
this section if a party engaged in a discriminatory practice with malice or reckless indifference to
the federally protected rights of an aggrieved individual). Accordingly, the Defendants Nick
Kladis and Nick’s American Pancake Café, Inc. are jointly and severally liable for the payment
of $10,000 plus post judgment interest in punitive damages to each of the plaintiffs, Angela
Heyne and Angela King, on their successful Title VII claims.
II.
Back Pay on Title VII claims
Angela Heyne and Angela King’s success on their Title VII claims opens the door to the
recovery of back pay, 42 U.S.C. § 2000e-5(g)(1), and the parties agreed prior to the jury trial in
this case that the Court would determine the appropriate amount of back pay. The Seventh
Circuit has stated that a “district court has broad equitable discretion to fashion back pay awards
to make the Title VII victim whole [and that] [o]nce the district court [finds] unlawful
discrimination in violation of Title VII, there [is] a strong presumption that [a plaintiff is]
4
entitled to a back pay award on the basis of what she would have earned absent the
discrimination.” E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1997)
(citations omitted). The Seventh Circuit has also directed that “the plaintiff has the burden of
proving the damages caused [to] her [and that such] damages are determined by ‘measuring the
difference between actual earnings for the period and those which she would have earned absent
the discrimination by defendant.’” Horn v. Duke Homes, 755 F.2d 599, 606 (7th Cir. 1985)
(quoting Taylor v. Philips Indus., Inc., 593 F.2d 783, 786 (7th Cir. 1979)). Interim earnings or
amounts earnable with reasonable diligence by the person or persons discriminated against shall
operate to reduce the back pay otherwise allowable. 42 U.S.C. § 2000e–5(g). In determining the
proper award of back pay, a court must make sure that any award is not speculative and does not
put the plaintiff in a better position than she was before her termination. See Ilona, 108 F.3d at
1580 (relying on United States v. City of Chi., 853 F.2d 572, 575 (7th Cir. 1988) for the notion
that “[t]he court must ‘do its best to recreate the conditions and relationships that would have
existed if the unlawful discrimination had not occurred’”). The defendant has the burden of
demonstrating that a plaintiff who was unlawfully discharged did not make adequate efforts to
mitigate her damages by securing other employment. Hutchison v. Amateur Elec. Supply, Inc.,
42 F.3d 1037, 1044 (7th Cir. 1994) (in order to establish the affirmative defense of a plaintiff's
failure to mitigate damages, the defendants must show that: (1) the plaintiff failed to exercise
reasonable diligence to mitigate her damages, and (2) there was a reasonable likelihood that the
plaintiff might have found comparable work by exercising reasonable diligence).
Much of the submissions by plaintiffs’ counsel relative to the appropriate amount of back
pay to be awarded relied on the anticipated expert testimony of Kevin Scullion who relied on the
5
United States Bureau of Labor Statistics to determine the average wage of waitresses in the
South Bend area during the relevant time. Plaintiffs’ counsel initially claimed that Scullion’s
testimony was necessary because defendants failed to properly report Heyne and King’s total
compensation as reflected on their inaccurate W-2 forms. Plaintiffs’ counsel represented that
Scullion would provide testimony based on national statistics which would support Heyne’s
claim for back pay and interest in the amount of $31,038.30 (utilizing a damages period
stretching from her initial termination until the present), and King’s claim for back pay and
interest in the amount of $36,793.62 (based on a damages period stretching from her initial
termination until the present).
At the evidentiary hearing, however, both parties agreed that the calculations were not
the best evidence and failed to calculate back pay using the correct time frames. In short,
Scullion’s “average wage” testimony based on national statistics and any related exhibits are
irrelevant and unnecessary, given that both Heyne and King testified at trial, as supplemented at
the hearing, about their average weekly earnings from waitressing at American Pancake House.
In other words, there is no need to rely on less reliable averages and statistics, when the
plaintiffs’ own testimony provides direct evidence of their actual weekly wages and tips.2 In
addition, plaintiffs’ counsel agreed that King’s back pay is limited to the several week period
between her retaliatory termination and her return to work. Other than raising the fact that
plaintiffs’ tips were not properly reported on their W-2's (which didn’t reflect any tips at all),
defendants do not contest the average number of hours worked by plaintiffs or their typical pay.
However, defendants do argue that Heyne’s back pay period should be shortened by her failure
2
At the evidentiary hearing, plaintiffs’ counsel conceded that in light of plaintiffs’ own testimony
concerning their hours worked and wages earned, the testimony from Scullion was not necessary. Plaintiffs’ counsel
also confirmed that they were not pursuing the theory that the plaintiffs worked fewer hours (than their average 3035 hours per week) due to a hostile environment.
6
to mitigate damages given the availability of other waitressing jobs during the relevant time
period.3
Angela Heyne’s testimony from trial and the evidentiary hearing established that she
earned $2.13 or $2.15 an hour and roughly $65 a week (which is indicative of her working about
30 hours per week). Heyne also consistently testified that she made approximately $500 in tips
per week although her tax forms reveal that these tips were not reported. Despite her inaccurate
W-2's, the Court will credit Heyne’s testimony relative to the amount of tips she made, given that
she appeared credible in commenting on the “amazing” tips she received, that her testimony was
consistent with the testimony of other waitresses working for Kladis, that she admitted her W-2's
did not properly reflect the tips she earned (an error she blamed Kladis for because he
improperly recorded her tips) and that her testimony was uncontroverted. So even though
Heyne’s W-2's did not reflect her actual earnings, the Court finds it more likely than not that she
earned approximately $500 in tips per week.
Relative to defense counsel’s argument that Heyne failed to mitigate damages [DE 128],
the trial did include testimony from a least one waitress, Nicole Holeman, who indicated
waitressing jobs were readily available in the area during the time frame when Heyne was
constructively terminated. Yet, even assuming such jobs were readily available, the defense has
failed to provide sufficient evidence that she failed to exercise the necessary reasonable diligence
to mitigate her damages. In fact, Heyne testified during the evidentiary hearing that after her last
3
To the extent defense counsel argues that Heyne should not recover any back pay because the jury did not
find that she was either actually or constructively discharged [DE 128], the argument is without merit. The jury was
specifically instructed, in relevant part, that in order for Heyne to successfully prove her sexual harassment claim
they must unanimously agree that she was subjected to unwelcomed sexual harassment that made her environment
hostile or abusive, occurred because she was female, and caused her to quit because defendants’ conduct made her
working conditions so intolerable that a reasonable person in her position would have had to quit [DE 111 at 22].
The jury then found that Heyne had successfully proven her claim.
7
day of working for American Pancake House she placed her resume on various employment
related websites, applied for various jobs (including waitressing jobs), and had a few interviews
with local businesses. Heyne stated she never refused a job offer and was finally employed with
Gurley Leep Nissan approximately seven months later making the same amount of money she
was making at the American Pancake House. As such, the Court concludes that there is an
insufficient basis upon which to conclude Heyne failed to mitigate her damages. Accordingly,
Heyne’s back pay award will be calculated by taking her average weekly wage ($564.00,
including wages and tips) multiplied by 28 weeks (or 7 months from August 15, 2010 when she
found comparable work). Heyne’s total back pay award is $15,820.00, plus post judgment
interest.
Angela King’s testimony from trial established that she worked on average 30 hours or
less per week and earned $2.13 an hour. She testified to making on average $200-400 in tips per
week. King’s testimony on direct and re-direct examination established that she returned to
work only 2 weeks after being terminated in February 2010 for telling Kladis that sexual
harassment was illegal. Accordingly, King’s back pay award will be calculated by taking her
average weekly wage ($364.00, including wages and average tips of $3004) multiplied by 2
weeks,5 for a total back pay award of $728.00 plus post judgment interest.
4
Angela King’s testimony indicated that although she earned a maximum of $500 in tips per week, on
average she earned between $200-400 in tips per week and she was making somewhere between $300-600 biweekly.
Therefore, the Court believes the most reasonable estimate of her tips was $300 per week.
5
Plaintiffs’ counsel indicated it would rest on the evidence presented at trial relative to back pay, and the
parties’ agreed that King’s back pay should be limited to the number of weeks between the time she quit and then
returned to the American Pancake House. The Court also agrees that the trial evidence presents the most reliable
evidence relative to back pay and therefore relies on King’s testimony that she worked 30 hours per week and
returned 2 weeks after being terminated (although there was some discussion during the evidentiary hearing that
King may have worked as many as 35 hours a week and had returned to work 3-4 weeks after being terminated in
February 2010).
8
To the extent defense counsel argues that any back pay awarded to Heyne and King
should be reduced by their failure to quit sooner (Heyne) or by returning to work knowing the
harassment/discrimination they would face (King)—the claim is simply meritless. The Seventh
Circuit has flatly rejected such an assumed-risk affirmative defense approach relative to Title
VII. See Smith v. Sheahan, 189 F.3d 529, 534-535 (7th Cir. 1999) (“Employers who tolerate
workplaces marred by exclusionary practices and bigoted attitudes cannot use their
discriminatory pasts to shield them from the present-day mandate of Title VII. There is no
assumption-of-risk defense to charges of workplace discrimination. At the same time, we
recognize that the culture of workplaces does differ from setting to setting. As the Supreme
Court instructed in Oncale [v. Sundowner Offshore Services, Inc., 118 S.Ct. 998, 1003 (1998)],
juries-and judges-must bring their “common sense” and “an appropriate sensitivity to social
context,” id., to bear when they make the threshold determination whether certain forms of
behavior, in a given work setting, are discriminatory or not.”). Here, the evidence revealed
conduct that would be objectively and subjectively unacceptable to the average employee and
there will be no reduction in the back pay awarded Angela Heyne for failing to quit before
August 2010 or Angela King for returning to work shortly after her February 2010 termination.
Plaintiffs also request6 prejudgment interest on their back pay awards, calculated
pursuant to the average prime rate for the time period in question, or 3.25% [DE 118 at 4]. Other
than generally objecting to an award of back pay, defendants do not contend that an award of
6
In passing, plaintiffs’ counsel alluded to the fact that the Court may also require defendants to pay
plaintiffs the amount of money they received in unemployment benefits, realizing of course the plaintiffs would then
have an obligation to return the money to the State of Indiana [DE 118 at 4]. However, plaintiffs’ evidence on
unemployment compensation [DE 121] only lists annual receipts and does not provide the detail necessary to make
such an award relative to the limited time frames at issue.
9
prejudgment interest is inappropriate nor do defendants provide an alternate method for its
calculation [DE 128].
There is no doubt that “Title VII authorizes prejudgment interest as part of the back pay
remedy in suits against private employers.” U.S. E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815,
819-20 (7th Cir. 1990) (quoting Loeffler v. Frank, 486 U.S. 549, 557 (1988)). Indeed, the
Supreme Court has said that it is a “normal incident” of relief in Title VII suits. Id. at 558; see
Donnelly v. Yellow Freight System, Inc., 874 F.2d 402 (1989) (holding that the failure to award
prejudgment interest is an abuse of discretion); see also U.S. E.E.O.C., 914 F.2d at 820
(concluding that where damage amounts were easily ascertainable the district court did not abuse
its discretion in awarding compounded prejudgment interest). And even though the granting of
prejudgment interest is left to the sound discretion of the district court, the Seventh Circuit’s
more recent decisions have somewhat limited the district court's discretion. U.S. v. Board of
Educ. of Consol. High School Dist. 230, Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir. 1993)
(internal citation omitted). For example, in Gorenstein Enterprises, Inc. v. Quality Care-USA,
Inc., 874 F.2d 431, 436 (7th Cir. 1989), the Seventh Circuit stated that “[t]he time has come . . .
to generalize, and to announce a rule that prejudgment interest should be presumptively available
to victims of federal law violations. Without it, compensation is incomplete and the defendant
has an incentive to delay.” U.S. v. Board of Educ. of Consol. High School Dist. 230, Palos Hills,
Ill., 983 F.2d at 799 (holding that the district court did not abuse its discretion in awarding
prejudgment interest because the damages were reasonably ascertainable).
And while there are many circuit court cases holding that district courts have wide
discretion on the issue of prejudgment interest, including what rate to use and how to calculate it,
10
there is a surprising lack of consensus on exactly what rate to use and exactly how to apply it.
Staples v. Parkview Hosp., Inc., No. 1:07-CV-327, 2010 WL 780204, *11 (N.D. Ind. Mar. 3,
2010). However, the Seventh Circuit has indicated that courts should use the prime rate as the
benchmark for prejudgment interest unless either there is a statutorily defined rate or the district
court engages in “refined rate-setting” directed at determining a more accurate market rate for
interest. Cement Division, National Gypsum Co. v. City of Milwaukee, 144 F.3d 1111, 1114 (7th
Cir. 1998).
Here, the Court finds that in order to make the plaintiffs whole for their injuries suffered
through defendants past intentional discrimination, the Court will award prejudgment interest on
their readily determined back pay awards at the average prime rate of 3.25%. See David v.
Caterpillar, Inc., 324 F.3d 851, 865- 66 (7th Cir. 2003) (“The district court has broad equitable
discretion to fashion back pay awards to make the Title VII victim whole.”); Fine v. Ryan Intern.
Airlines, 305 F.3d 746, 757 (7th Cir. 2002) (determining that even though the majority of
plaintiffs award consisted of punitive damages, plaintiff only sought interest on the back pay
award which was proper). The Court would note that the prime rate is no different whether
looking at the dates at issue (February through August 2010), or utilizing today’s prime rate.
Therefore, the Court grants plaintiffs’ request for prejudgment interest on their back pay awards
at the rate of 3.25 %, compounded annually since February 2010.
It should also be noted that from the date of this order, post-judgment interest at a rate of
0.11% shall accrue on the award of punitive damages and back pay under 28 U.S.C. § 1961.
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III.
Attorneys’ Fees
Pursuant to 42 U.S.C. § 2000e-5(k) of Title VII, “In any action or proceeding under this
subchapter the court, in its discretion, may allow the prevailing party, other than the Commission
or the United States, a reasonable attorney's fee (including expert fees) as part of the costs[.]” Cf.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417 (1978) (“[A] prevailing [Title VII]
plaintiff ordinarily is to be awarded attorney's fees in all but special circumstances.”).
Angela Heyne won a liability verdict with respect to her hostile work environment/sexual
harassment claim, and is therefore a prevailing party. Angela King was successful with respect
to her retaliation claim, and is also a prevailing party. In fact, neither party disputes that Heyne
and King are considered prevailing parties, but defense counsel argues that no attorneys’ fees
ought to be awarded because plaintiffs only achieved nominal success at trial [DE 125].
However, defense counsel does agree with plaintiffs’ counsel that the initial fee award should be
assessed by calculating the “lodestar” of a reasonable fee times reasonable hours, the
methodology from Hensley v. Eckerhart, 461 U.S. 424 (1983) for conventional prevailing parties
[DE 125 at 3], and then reduced for factors not already considered in the lodestar.
The Court agrees with the parties that the correct method to use for the calculation of fees
is the lodestar method, rather than the method employed in Farrar v. Hobby, 506 U.S. 103
(1992) which is used when a plaintiff’s recovery is merely minimal, technical, or de minimis.
See Aponte v. Chicago, 728 F.3d 724, 726-728 (7th Cir. 2013). While it is true that plaintiffs did
not recover the amount they set out to receive, plaintiffs received a total award of $24,000 in
punitive damages (approximately 3.5% of the total relief requested of the jury at trial)—and, this
is no “trifling victor[y].” Id. at 727 (citations omitted). The award of $10,000 in punitive
12
damages to two of the three plaintiffs on their respective Title VII claims is not a nominal award,
rather it is indicative of the jury’s finding defendant’s conduct sufficiently reprehensible to
award punitive damages so as to punish the defendant and to serve as an example or warning to
the defendant and others not to engage in similar conduct in the future [DE 111 at 30]. See e.g.,
Classic Cheesecake Co., Inc. v. JPMorgan Chase Bank, No. 1:05-cv-0236-WTL-JDT, 2007 WL
3285806, *3 (S.D. Ind. Nov. 5, 2007) (“An award of $10,000 in punitive damages is not
‘nominal.’ However, it is completely unreasonable to assert that the Plaintiffs achieved
‘complete success’ in this case. Classic Cheesecake argued during its closing argument that it
was entitled to more than $4.4 million in compensatory damages plus punitive damages, and the
jury awarded it zero in compensatory damages and $42,000 (now reduced to $10,000) in
punitive damages. There is no escaping the fact that Classic Cheesecake was awarded a tiny
fraction of the damages it sought.”). Moreover, Farrar does not apply because in looking at the
litigation history, it does not appear that plaintiffs inflicted unnecessary heavy costs on
defendants as little discovery was conducted or wastefully expended judicial resources to litigate
their claims since six of the fourteen claims that proceeded to trial were successful. See Aponte,
728 F.3d at 728-29 (regarding an attorneys’ fee award under § 1988, the court held that in
determining whether an award should be analyzed under Farrar, district courts should look at
the entire litigation history, including the number of victorious versus unsuccessful claims, the
amount of damages sought versus recovered, time expended by the parties, and judicial
resources). And, after the Court denied defendants’ motion for judgment on the pleadings [DE
45], no further dispositive motions were filed by the parties, the plaintiffs voluntarily narrowed
13
the focus of their claims during the final pretrial conference [DE 90; DE 96], and the case
proceeded to trial.
Accordingly, the Court now turns to the calculation of the lodestar by multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly rate. See
Hensley, 461 U.S. at 433-37; see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)
(criticizing the approach taken by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974) which had provided twelve largely subjective factors to consider when
determining a reasonable fee). There is a strong presumption that the lodestar calculation yields a
reasonable attorneys' fee award. Pickett v. Sheridan Health Care Center, 664 F.3d 632, 639 (7th
Cir. 2011) (citations omitted).
The Seventh Circuit has defined a reasonable hourly rate as one that is “derived from the
market rate for the services rendered.” Pickett, 664 F.3d at 640 (quoting Denius v. Dunlap, 330
F.3d 919, 930 (7th Cir. 2003)). The Court presumes that an attorney’s actual billing rate for
similar litigation is appropriate to use as the market rate. Id. Having recognized the difficulty of
determining the hourly rate of an attorney who uses contingent fee agreements, the Seventh
Circuit has advised district courts to rely on the “next best evidence” of an attorney’s market
rate, namely “evidence of rates similarly experienced attorneys in the community charge paying
clients for similar work and evidence of fee awards the attorney has received in similar cases.”
Pickett, 664 F.3d at 640 (quoting Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 555 (7th Cir.
1999)). Of these two alternatives, the Seventh Circuit has indicated a preference for third party
affidavits that attest to the billing rates of comparable attorneys. Id. (citing Spegon, 175 F.3d at
556).
14
The fee applicant bears the burden of “produc[ing] satisfactory evidence—in addition to
the attorney's own affidavits—that the requested rates are in line with those prevailing in the
community.” Pickett, 664 F.3d 632 at 640 (citing Blum v. Stenson, 465 U.S. 886, 895 n. 11
(1984)). If the fee applicant satisfies this burden, the burden shifts to the other party to offer
evidence that sets forth “a good reason why a lower rate is essential.” Id. (citations omitted).
However, if the fee applicant does not satisfy its burden, the district court has the authority to
make its own determination of a reasonable rate. Id. (citing Uphoff v. Elegant Bath, Ltd., 176
F.3d 399, 409 (7th Cir. 1999)).
The party seeking an award of attorneys’ fees not only bears the burden of proving the
hourly rates claimed, but must also prove the reasonableness of the hours worked. Spegon, 175
F.3d at 550 (citing Hensley, 461 U.S. at 433). Furthermore, the district court has an obligation to
“exclude from this initial fee calculation hours that were not ‘reasonably expended’” on the
litigation. Id. (citing Hensley, 461 U.S. at 434). “Billing judgment consists of winnowing the
hours actually expended down to the hours reasonably expended.” Id. at 552 (quoting Case v.
Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998)). In exercising “billing
judgment,” the Supreme Court emphasized that counsel for the prevailing plaintiff should
“exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just
as a lawyer in private practice ethically is obligated to exclude such hours from his fee
submission.” Id. (quoting Hensley, 461 U.S. at 434). Put another way, hours that an attorney
would not properly bill to his or her client in the private sector cannot properly be billed to the
adverse party under a fee-shifting statute. Id. The court should disallow not only hours spent on
15
tasks that would normally not be billed to a paying client, but also those hours expended by
counsel “on tasks that are easily delegable to non-professional assistance.” Id. (citation omitted).
Once the district court has established the lodestar, the court may adjust it to account for
factors not subsumed by the lodestar calculation. See Johnson v. GDF, Inc., 668 F.3d 927, 929
(7th Cir. 2012) (stating that when a party is entitled to attorneys’ fees, the court begins by
calculating the Plaintiff’s lodestar rate—the hours reasonably expended times the reasonable
hourly rate and then in some circumstances, adjusts the lodestar rate); Pickett, 664 F.3d at 640
(citing Perdue, 559 U.S. at 553); Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010) (noting
the court may exercise its discretion to “adjust [the lodestar] figure to reflect various factors
including the complexity of the legal issues involved, the degree of success obtained, and the
public interest advanced by the litigation. The standard is whether the fees are reasonable in
relation to the difficulty, stakes, and outcome of the case.”) (citation and internal citation
omitted). The Seventh Circuit has considered on a number of occasions the problem presented by
partially prevailing plaintiffs, and has set forth helpful language in Bryant v. City of Chicago,
200 F.3d 1092 (7th Cir. 2000) (quoting Spanish Action Comm. v. City of Chi., 811 F.2d 1129
(7th Cir. 1987)):
In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct.1933, 461 U.S. 424, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983), the Supreme Court set out guidelines for calculating
the proper amount of an attorney's fee award in cases where the plaintiff only
partially prevails on his claims. The Court divided these partial recovery cases
into two categories. The first category involves cases where the plaintiff presents
distinctly different claims for relief that are based on different facts and legal
theories. A plaintiff may not recover attorney's fees for time expended on an
unsuccessful claim if that claim is “distinct in all respects from his successful
claims.” Id. at 440, 103 S.Ct. at 1943. Untreated claims must be treated “as if they
had been raised in separate lawsuits.” Id. at 435, 103 S.Ct. at 1940.
.....
16
The second category of partial recovery cases, into which this action does fall,
includes those cases in which the plaintiff's claims for relief involve a common
core of facts or are based on related legal theories. Because the majority of
counsel's time will be devoted to the litigation as a whole, as opposed to any one
specific claim, this type of lawsuit cannot be viewed as a series of discrete claims.
As a result, time spent on related claims that ultimately prove unsuccessful should
not be automatically excluded from the attorney's fee calculation. Instead, the
focus in arriving at the appropriate fee award should be on “the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.” Hensley, 461 U.S. at 435, 103 S.Ct. at 1940.
.....
Where the plaintiff fails to obtain all that he reasonably could have asked for and
achieves only partial or limited success, the lodestar amount-the product of the
number of attorney's hours reasonably expended on the litigation as a whole times
a reasonable hourly rate-is likely to be excessive. The Supreme Court therefore
provided: “A reduced fee award is appropriate if the relief, however significant, is
limited in comparison to the scope of the litigation as a whole.” Hensley, 461 U.S.
at 440, 103 S.Ct. at 1943. The Court, however, articulated no precise rule or
formula to be followed in making such a reduction, instead choosing to leave this
determination to the discretion of the district court in view of its greater
familiarity with the litigation. Id. at 436-37, 103 S.Ct. at 1941. The Court did
indicate that in reducing a fee award to reflect the plaintiff's limited success, a
district court may attempt to identify specific hours that should be eliminated, or
it may simply reduce the award across the board to account for the limited
success. Id.
Bryant, 200 F.3d at 1101 (quoting Spanish Action Comm. v. City of Chi., 811 F.2d 1129, 1133
(7th Cir. 1987)).
Plaintiffs’ counsel wants to obtain full compensation for every hour each lawyer and the
firm’s staff worked on the case, including time spent on DeVreese’s unsuccessful claims (for
sexual harassment, pregnancy discrimination, IIED, assault, and battery) and King’s three
unsuccessful claims (for sexual harassment, IIED, and assault) [DE 120; DE 132]. Plaintiffs’
counsel suggests that normally an upward adjustment for taking the case on a contingency basis
might be appropriate, but acknowledges the Court might reduce the award to account for
17
unsuccessful claims. Plaintiffs’ counsel also argues they have obtained “excellent results” and
believes they are entitled to full compensation based on the factors listed in Waters v. Wisconsin
Steel Works of Intern. Harvester Co., 502 F.2d 1309 (7th Cir. 1974) (in awarding attorney's fees
in an employment discrimination case, hours spent by the attorney and the billing rate were
factors to be considered, but other factors included novelty and difficulty of the questions, skill
required, likelihood of exclusion of other employment by the attorney if such likelihood was
apparent to the client, fee customarily charged in the locality for similar services, amount
involved and results obtained, time limitation imposed by the client or circumstances, the nature
and length of the professional relationship with the client, experience, reputation and ability of
the lawyer or lawyers performing the services, and whether the fee was fixed or contingent).
In support of their claim for fees, plaintiffs’ counsel (who are from Indianapolis)
submitted three separate billing sheets [DE 120-2; DE 120-3; and DE 134-1] seeking a total
recovery of $218,118.65 in attorneys’ fees.7 According to the invoices, Partner Kenneth Roberts
bills $385.00 an hour, but $525.00 an hour for trial, Managing Partner Tasha Roberts bills
$250.00 an hour, but $300.00 an hour for trial, Senior Associate Adam Lenkowski bills $200.00
an hour, but $250.00 an hour for trial, Associate Attorney Rudy Coram bills $150.00 an hour,
while office assistants Dawn Ramsey and Kenneth Roberts, Jr. bill $75.00 an hour. Plaintiffs
have also provided four affidavits in support of their request for fees: the affidavit of Kenneth
Roberts [DE 120-1], the affidavit of Yvone Ferguson Watkins [DE 120-4], the supplemental
affidavit of Kenneth Roberts [DE 134], and the affidavit of Richard Hailey [DE 138-1].
7
DE 120-2 charges $149,543.90 in attorneys’ fees, DE 120-3 charges $57,227.50 in attorneys’ fees, and DE
134-1 charges $11,347.25 in attorneys’ fees.
18
It is the defense’s position that plaintiffs’ fees should be lowered to represent hourly rates
charged by attorneys in St. Joseph County because other competent lawyers in the area could
have handled the plaintiffs’ claims [DE 125]. Defense counsel also argues that once the lodestar
is calculated, it should then be adjusted downward to an award of no fees in light of the minimal
results obtained. Finally, defense counsel seeks to strike the affidavits of Mr. Roberts and Ms.
Watkins arguing that they are hearsay, irrelevant, and immaterial [DE 123] and the affidavit of
Mr. Hailey because it is hearsay and was filed after the submissions relating to damages were
closed [DE 139].
To start, the Court denies defense counsel’s request to strike the plaintiffs’ affidavits
namely because these types of affidavits are not only anticipated for purposes of supporting fee
requests, but they are required. Rather than exclude the contents of the affidavits, the Court will
detail their contents and determine the probative value of each evidentiary submission. Pickett v.
Sheridan Health Care Ctr., 664 F.3d 632, 646 (7th Cir. 2011) (citation omitted) (noting that a
district court “is entitled to determine the probative value of each [evidentiary] submission.”).
Moreover, to the extent plaintiffs’ filings were submitted belatedly, the Court declines to strike
them because they were submitted prior to the Court’s ruling on fees and defense counsel has
had adequate opportunity to respond substantively to said submissions.8
Turning to the contents of the plaintiffs’ affidavits, Mr. Roberts’ experience is extensive
and uncontroverted [DE 120-1]—he represents that he has practiced law since 1973, is admitted
to practice in various jurisdictions, is the founding partner of his Indianapolis law firm, has
successfully represented major corporations and been involved in high stakes cases, is involved
8
Even if the Court struck the affidavit of Mr. Hailey for being filed too late, the outcome of this order would
not change given that Ms. Watkins’ timely affidavit offers similar testimony.
19
in the legal community, and he took the instant case on a contingent basis risking any right to
recovery since plaintiffs were without any money to retain counsel. Mr. Roberts affirms that
when he bills on an hourly basis for litigation matters comparable to this civil rights case, he
charges a minimum rate of $385 to $425 an hour. In fact, Mr. Roberts was recently awarded an
hourly rate of $525 in March of this year by a district judge in the Indianapolis Division wherein
Mr. Roberts received a default judgment in favor of a plaintiff for a Title VII discrimination
claim, and where the state claim for IIED was dismissed. See Kia Tonge v. The Arantee Group,
LLC and Ravi Chopra, case no. 1:12-cv-570-JMS-MJD [DE 28]. In addition, Mr. Roberts
contends that plaintiffs were unable to find counsel locally who would take the case on a
contingent basis [DE 120-1 at 2]—a contention the defense disputes. In litigating this case
through trial, Mr. Roberts was primarily assisted by Ms. Tasha Roberts and Mr. Adam
Lenkowsky, experienced litigators of no less than ten years.
Plaintiffs also provided the affidavit of Ms. Ferguson and Mr. Hailey which establish that
they too are experienced litigators who have practiced with their own firms in Indianapolis for
decades [DE 120-4; DE 138-1]. Given their own litigation experience in Indianapolis and
knowledge of Mr. Roberts’ background, they believe that Mr. Roberts’ hourly billing rates are
reasonable. While the Court credits the affiants’ testimony in this respect, it gives no weight to
their unsupported speculation that such a rate is reasonable “no mater which jurisdiction” the
case is pending. Their affidavits simply lack a foundation for such a broad assertion. Further,
the law does not support their contentions that all of Mr. Roberts’ billed hours are reasonable,9
nor that Mr. Roberts is entitled to a multiplier simply because he took the case on a contingent
9
Rather, some of the hours are deemed by the Court as unnecessary, duplicative, or administrative. See
infra.
20
basis. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 645 (7th Cir. 2011) (the Supreme
Court held in City of Burlington v. Dague, 505 U.S. 557, 562 (1992) that courts cannot enhance
the lodestar to account for the risk of nonpayment incurred by attorneys who take cases pursuant
to contingent fee agreements).
Defense counsel, Mr. Vincent Campiti, filed his own affidavit [DE 125-1] indicating that
he has practiced law since 1997 in the areas of civil rights litigation, personal injury law,
family/business law, and general defense work. Mr. Campiti charges $275.00 an hour, even for
plaintiff’s work under Title VII. And based on Mr. Campiti’s experience with numerous
plaintiffs’ attorneys in St. Joseph County, he attests that the going rate is between $210 and $295
an hour. The Court credits Mr. Campiti’s affidavit and has no reason to question the veracity of
these statements.
In determining a reasonable hourly rate the parties would have the Court focus in part on
the fact that plaintiffs’ counsel entered into a contingent fee agreement with their clients
indicating that plaintiffs’ firm would be entitled to 50% of any award, which would be deducted
from any court award for attorneys fees, and that the clients would pay the firm’s usual hourly
rate of $225.00 per hour for any non-monetary remedies awarded by the court [Def.’s Exb. B,
Damages Hearing]. Given the contingency agreement, Mr. Roberts’ claims that the Court should
enhance his fee award based on the risk he incurred in representing plaintiffs on a contingent
basis, while Mr. Campiti argues that plaintiffs’ counsel should be bound to their stated hourly
rate of $225.00. The Court rejects these arguments. First, the hourly rate of $225 is only
applicable to non-monetary awards and is not indicative of a standard hourly rate necessarily
charged by the firm. Second, and more importantly, the district court lacks authority to adjust
21
the hourly rate due to the existence of a contingent fee agreement and this includes not having
the authority to enhance the lodestar to account for the risk of nonpayment. Pickett, 664 F.3d at
642-45 (“The Supreme Court has recognized that private fee arrangements and statutory fee
awards can coexist . . .The Court has repeatedly distinguished between the statutory fee award,
which compels the losing party to compensate the prevailing party for the attorney's services,
and the contingent fee, which the plaintiff may contract to pay her attorney . . . This perspective
conveys to district courts that they should view these fees as distinct and not allow a contingent
fee to influence the determination of the reasonableness of an hourly rate”) (citing Venegas v.
Mitchell, 495 U.S. 82, 88, 90 (1990)).
In any event, the Court finds plaintiffs have met their burden in proving that their rates
are reasonable market rates for the services rendered. First, Mr. Roberts has attested to the fact
that his actual billing rate is as much as $425 an hour for out of court time and $525 an hour for
trial time when he has taken similar cases on a non-contingent basis. Further, Mr. Roberts was
recently awarded $525 an hour in another Title VII action in Indianapolis, Kia Tonge v. The
Arantee Group, LLC and Ravi Chopra, a case which resulted in a favorable default judgment and
did not go to trial or require the time and effort the instant case required. And the fee that was
awarded in counsel’s previous litigation need not be disputed in order to be relied on by this
Court for purposes of determining a reasonable market rate. See Jeffboat, LLC v. Director,
Office of Workers' Compensation Programs, 553 F.3d 487, 491 (7th Cir. 2009) (“Nothing in the
case law requires that a party show that the hourly rate they have requested has previously been
disputed and upheld, however. Indeed, a previous attorneys' fee award is useful for establishing a
reasonable market rate for similar work whether it is disputed or not.”). Lastly, while Mr.
22
Roberts has not produced evidence of what other local attorneys have actually been paid for
similar work, he has provided the affidavits of two experienced Indianapolis counsel indicating
they find his rates reasonable for the area.
While Mr. Campiti has attempted to refute this evidence and show a good reason why
plaintiffs’ rates should be lowered, he has failed to do so. First, the Court rejects Mr. Campiti’s
argument that plaintiffs’ counsel should only be paid similar rates charged by attorneys in St.
Joseph County, consistent with his own affidavit. The Seventh Circuit has determined that if an
out-of-town attorney has a higher hourly rate than local practitioners, district courts should defer
to the out-of-town attorney's rate when calculating the lodestar amount, though if “local
attorneys could do as well, and there is no other reason to have them performed by the former,
then the judge, in his discretion, might allow only an hourly rate which local attorneys would
have charged for the same service.” Mathur v. Bd. of Trustees of Southern Illinois Univ., 317
F.3d 738, 744 (7th Cir. 2003) (citation omitted). Thus, while this court has the discretion to
modify Mr. Roberts’ rates if there is reason to believe that services of equal quality were readily
available at a lower charge or rate in the area where the services were rendered, the only
evidence before the Court demonstrates that plaintiffs were unable to find anyone in South Bend
who could provide these services. In fact, Angela Heyne testified at trial that she searched for
and contacted civil rights attorneys in South Bend and was unable to find anyone to take this
type of case. While the Court is personally aware that there are local attorneys who litigate civil
rights cases on behalf of plaintiffs and who could have competently handled this type of case, the
Court has no reason to discredit Heyne’s testimony that she was unable to find anyone locally
23
who would take this case on a contingent basis.10 The case was not necessarily a strong one
either, as reflected by the evidence presented and the result, thereby making the case even less
attractive. Therefore, it was reasonable for Heyne to search for an attorney in Indianapolis after
exhausting her options in South Bend. Second, since Heyne found Mr. Roberts’ firm after being
unable to secure a local attorney (with King joining the lawsuit later), the Court may make the
fee allowance on the basis of the chosen attorney’s out of market billing rates. Mr. Campiti
presents no evidence to contradict the reasonableness of the Indianapolis rates found in
plaintiffs’ invoices. Because it has not been shown that the rates customarily charged in
Indianapolis for truly similar services requires any adjustment, the Court finds that the rates
proposed by plaintiffs’ counsel are reasonable. The Court would finally note that the hourly fees
charged by the other attorneys in Mr. Roberts’ firm have rates which are consistent with Mr.
Campiti’s attestation that the going rate for similar work in St. Joseph County is between $210
and $295 an hour.
Reasonable Number of Hours Worked
Having determined the reasonable rates, the Court must now determine whether the hours
billed are reasonable. See Trustees of Chicago Plastering Inst. Pension Trust v. Cork Plastering
Co., 570 F.3d 890, 904-05 (7th Cir. 2009) (citation omitted) (“A district court necessarily must
assess the reasonableness of any fees and costs requested.”). The reasonableness of the time
expended by an attorney on behalf of a client depends not only on the total number of hours
involved but also on the particular tasks to which the attorney devoted his or her time. Id. at 905
10
The Court found her testimony in this regard credible and was uncontroverted. The Court would note that
in concluding plaintiffs were unable to find local counsel, the Court does not rely on Mr. Roberts’ limited search for
Title VII litigators in the South Bend area, which was conducted after the verdict simply in an attempt to establish
local hourly rates for similar cases.
24
(other citations omitted). It is not at all unusual for a court to determine that some aspects of an
attorney's work were not fruitful, were unnecessary, or merited less time than the attorney
devoted to them, and to deny compensation for those portions of the attorney's work. Id. Again,
the party seeking an award of attorneys’ must prove the reasonableness of the hours worked.
Spegon, 175 F.3d at 550 (citing Hensley, 461 U.S. at 433).
Having thoroughly reviewed plaintiffs’ three separate billing sheets [DE 120-2; DE 1203; and DE 134-1], the Court has determined that a number of individual entries must be reduced
or omitted altogether. While the Court’s deductions are detailed in the chart below, the primary
basis for the deductions are noted as follows: (1) the billing party billed more than once for what
appeared to be the same work (“double billing”); (2) the hours billed were deemed
“unnecessary” to the litigation (for instance, the record for the instant litigation did not indicate
that the filing of a lis pendens against defendants’ property was part of the instant case, nor were
any experts, including CPA’s, necessary to calculate damages given plaintiffs’ own trial
testimony provided a sufficient basis upon which to calculate damages); and (3) an attorney
unnecessarily billed for performing “administrative” work, see Spegon, 175 F.3d at 553 (noting
that the court should disallow hours expended by counsel on tasks that are easily delegable to
non-professional assistance, such as updating the case list, calendaring, organizing file folders,
and copying documents).
ATTORNEYS’ FEES CALCULATION
Timekeeper
Date Billed
Time Billed
Time Struck
3.60
0.40
2.00
0.40
Reason
TIME SHEET DE 120-2:
Adam Lenkowsky
08/28/11
10/27/11
25
Unnecess./Excessive
Double Bill w/ KTR
10/28/11
11/14/11
01/12/12
01/18/12
01/20/12
03/08/12
03/12/12
06/07/12
08/22/12-09/24/12
01/15/13
04/24/13-04/25/13
2.50
1.00
0.20
0.10
0.10
0.30
0.25
0.20
0.90
0.10
4.00
Total Hours Struck for AL:
Total Due for AL:
2.00 Unnecessary/Admin.
0.80 Administrative
0.20 Administrative
0.10 Administrative
0.10 Administrative
0.30 Administrative
0.25 Administrative
0.20 Administrative
0.90 Unnecessary/Admin.
0.10 Unnecessary/Admin.
2.50 Triple Billing
9.85 hours struck
92.90-9.85 = 83.05 hours x $200.00/hr =
$ 16,610.00
Dawn Ramsey
08/22/12-09/24/12
0.80
Total Hours Struck for DR:
Total Due for DR:
0.30 Unnecessary/Admin.
0.30 hours struck
69.13-0.30= 68.83 hours x $75.00/hr =
$ 5,162.25
Kenneth Roberts
11/04/11
04/10/13
05/11/13
05/12/13
05/14/13
05/14/13
05/15/13
05/20/13
0.50
3.00
0.60
0.25
0.70
0.30
0.30
0.20
Total Hours Struck for KTR:
Total Due for KTR:
0.50 Unnecessary
3.00 Unnecessary
0.60 Unnecessary
0.25 Unnecessary
0.70 Unnecessary
0.30 Unnecessary
0.30 Unnecessary
0.20 Unnecessary
5.85 hours struck
283.04-5.85= 277.19 hours x $385.00/hr =
$ 106,718.15
Kenneth Roberts, Jr.
04/28/13
Total Hours Struck for KTRJR:
Total Due for KTRJR:
0.30
0.30 Double Billing
0.30 hours struck
41.25-0.30= 40.95 hours x $75.00/hr =
26
$ 3,071.25
Rudy Coram
Total Hours Struck for RC:
Total Due for RC:
none
24.35 hours x $150.00/hr =
$ 3,652.50
Tasha Roberts
04/21/13
04/30/13
04/30/13
05/12/13
05/13/13
05/14/13
05/14/13
05/15/13
05/16/13
05/23/13
.25
1.00
0.50
0.25
0.25
0.25
0.75
1.00
0.10
0.15
Total Hours Struck for TR:
Total Due for TR:
.25 Administrative
1.00 Double Billing
0.50 Double Billing
0.25 Unnecessary
0.25 Unnecessary/Admin.
0.25 Unnecessary
0.75 Unnecessary
1.00 Unnecessary
0.10 Unnecessary
0.15 Unnecessary/Admin.
4.50 hours struck
40.25-4.50= 35.75 hours x $250.00/hr =
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 120-2:
Adam Lenkowsky
Dawn Ramsey
Kenneth Roberts
Kenneth Roberts, Jr.
Rudy Coram
Tasha Roberts
TIME SHEET DE 120-3:
Adam Lenkowsky
Total Hours Struck for AL:
Total Due for AL:
none
45.10 hours x $250.00/hr =
$
8,937.50
$ 16,610.00
$ 5,162.25
$ 106,718.15
$ 3,071.25
$ 3,652.50
$ 8,937.50
$ 144,151.65
$ 11,275.00
Kenneth Roberts
26.2011
05/10/13
10.20
Unnecessary/Excess.
Total Hours Struck for KTR:
10.2 hours struck
Total Due for KTR:
68.70-10.20= 58.50 hours x $525.00/hr =
$ 30,712.50
11
The fact that Mr. Roberts billed more than 24 hours in a single day calls into question the accuracy of
counsel’s billing and does not inspire confidence in the billing employed here.
27
Tasha Roberts
Total Hours Struck for TR:
Total Due for TR:
none
32.95 hours x $300.00/hr =
$ 9,885.00
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 120-3:
Adam Lenkowsky
Kenneth Roberts
Tasha Roberts
$ 11,275.00
$ 30,712.50
$ 9,885.00
$ 51,872.50
TIME SHEET DE 134-1:
Adam Lenkowsky
06/11/13
0.80
Total Hours Struck for AL:
Total Due for AL:
0.80 Unnecessary/Admin.
0.80 hours struck
7.10-0.80=6.30 hours x $200.00/hr =
$ 1,260.00
Dawn Ramsey
Total Hours Struck for DR: none
Total Due for DR:
1.65 hours x $75.00/hr =
$
Kenneth Roberts
Total Hours Struck for KTR: none
Total Due for KTR:
24.10 hours x $385.00/hr =
$ 9,278.50
Tasha Roberts
Total Hours Struck for TR:
Total Due for TR:
$
none
2.10 hours x $250.00/hr =
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 134-1:
Adam Lenkowsky
Dawn Ramsey
Kenneth Roberts
Tasha Roberts
GRAND TOTAL ATTORNEYS’ FEES DUE FOR ALL TIME SHEETS:
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 120-2:
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 120-3:
TOTAL ATTORNEYS’ FEES DUE FOR TIME SHEET DE 134-1:
28
123.75
525.00
$ 1,260.00
$ 123.75
$ 9,278.50
$ 525.00
$11,187.25
$144,151.65
$ 51,872.50
$ 11,187.25
$207,211.40
Accordingly, the requested amount of attorneys’ fees, reduced by the line items charted
above, equals a legal fee award of $207,211.40.
Lodestar and its reduction
Having derived the lodestar, the court may adjust it to account for factors not already
considered in the lodestar calculation. Pickett, 664 F.3d at 640 (citing Perdue, 559 U.S. at 553).
Here, the Court finds various reasons that require a reduction in the total fee award, including
time spent on unsuccessful claims, the non-complex straight forward nature of the case, the fact
that multiple attorneys working on the case resulted in duplicative hours and cumulative
excessive billing, as well as lack of proportionality between the damages received and the
attorneys’ fees sought and the minimal public interest advanced given the circumstances of this
particular case. See e.g., Gastineau, 592 F.3d at 748 (lodestar figure may be reduced to include
the complexity of the legal issues, the degree of success obtained, and the public interest
advanced by the litigation); Schlacher v. Law Offices of Phillip J. Rotche & Associates, P.C.,
574 F.3d 852, 857 (7th Cir. 2009) (fee reduced because the collaboration among the attorneys
had inevitably led to duplicative work and excessive billing and after considering the
proportionality between the damages and attorneys’ fees).
In the present case, there is no doubt that the relief obtained was very limited in
relationship to the total relief sought. Although plaintiffs were awarded punitive damages and
received an award of back pay, the plaintiffs were successful on less than 50% of their claims
and received far less than the $675,000 in damages requested by plaintiffs’ counsel. As Hensley
points out, in such cases, a reduced fee amount is appropriate. In reducing the award, the Court is
unable to specify the precise billing entries or number of hours that should be eliminated for
29
litigating DeVreese and King’s unsuccessful claims, since the action involved a common core of
facts and was based on related legal theories among the plaintiffs. See e.g., Bryant, 200 F.3d at
1101 (citing Spanish Action Comm., 811 F.2d at 1133). And therefore the Court focuses on the
significance of the overall relief. Id. While it is true that plaintiffs’ limited success was more
than a nominal victory, the Court cannot agree with Mr. Roberts that the plaintiffs obtained
anything close to a ‘complete success.’ Rather, plaintiffs received only a fraction of their
requested damages, no compensatory damages were awarded, and one plaintiff walked away
completely empty handed. Further necessitating a reduction in the fee, yet complicating the
determination of an appropriate reduction, is the fact that this was a relatively uncomplicated
case—no depositions were taken or experts called for trial, rather the trial evidence consisted
simply of eye witness testimony and a “he-said-she-said battle”. And yet, a total of four
attorneys collaborated on the case and their work unnecessarily resulted in overlapping billing
(even on mostly lost claims). The Court believes that the case was not so complicated as to
require multiple counsel. Thus, the Court will reduce the fee award across the board by 50% to
account for the fact that less than 50% of the claims presented to the jury were successful12
despite having several attorneys performing overlapping work on a straight forward case.
Additionally, the Court believes the 50% reduction is sufficient to further account for the
lack of proportionality between the damages received and the attorneys’ fees sought, and to
account for the minimal public interest involved here. Certainly there is a strong interest in
eliminating the use of discrimination and/or presence of sexual harassment in the work force, but
the employer here was not a public entity or large corporation, rather it was a small local
12
Again, if the Court were to consider all of the claims initially pled by plaintiffs but not submitted to the
jury, then their rate of success was even lower.
30
restaurant and the lawsuit vindicated the rights of only two individual plaintiffs. And as
explained below, plaintiffs also did not succeed in showing that injunctive relief was appropriate
here. Given the circumstances a 50% reduction seems most reasonable and will result in an
attorneys’ fee award that is still a little more than four times the total punitive damages
recovered, but only about 2.5 times more than the total punitive damages and back pay awarded.
The total reduction of 50% will result in a total attorneys’ fee award of $103,605.70 (or
$207,211.40 - 103,605.70), which the Court deems reasonable in light of all of the relevant
factors for this particular case.
IV.
Costs
Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to
prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney's fees—should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). The United States Supreme Court has held that
§ 1920 defines the term ‘costs’ as used in Rule 54(d), and has rejected the view that the
discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not
enumerated in § 1920. See Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct. 1997, 2001 (2012)
(internal citation and citation omitted). And thus, taxable costs are limited to relatively minor,
incidental expenses as is evident from § 1920, which lists such items as clerk fees, court reporter
fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees,
and compensation of court-appointed experts. Id. Indeed, the assessment of costs most often is
merely a clerical matter that can be done by the court clerk and taxable costs are a fraction of the
31
nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. Id.
(citation omitted).
Here, the parties agreed during the course of the evidentiary hearing on damages that the
costs taxable in this case are limited by 28 U.S.C. § 1920. Specifically, § 1920 includes (1) fees
of the clerk and marshal; (2) fees for transcripts; (3) fees and disbursements for printing and
witnesses; (4) fees for copies of papers necessarily used in the case; (5) docketing fees; and (6)
compensation of court appointed experts and interpreters. 28 U.S.C. § 1920. Given the
agreement of counsel, the Court omits from the three separate billing sheets [DE 120-2; DE 1203; and DE 134-1], those items not listed in § 1920 and therefore the Court permits the recovery
of costs for copying, printing, and witness subpoenas. The Court will also award the $350 filing
fee, which during the evidentiary hearing Mr. Campiti agreed was a legitimate reimbursement.
No expert witness costs will be recovered, since an expert witness was admittedly unnecessary to
the presentation of plaintiffs’ case or to calculate their damages. Plaintiffs did not seek an award
of their other costs on any other basis, ultimately acknowledging they aren’t recoverable, and
therefore the Court declines to award them. Accordingly, the following chart reveals the total
amount of costs deducted and ultimately deemed recoverable under § 1920:
COSTS CALCULATION
TIME SHEET DE 120-2:
Total Cost Submitted
Costs Struck
Total Cost Allowed
$ 2,126.16
$ (1,240.16)
$
886.00
Total Cost Submitted
Costs Struck
Total Cost Allowed
$ 1,524.31
$ (1,346.81)
$
177.50
TIME SHEET DE 120-3:
32
TIME SHEET DE 134-1:
Total Cost Submitted
Costs Struck
Total Cost Allowed
GRAND TOTAL COSTS DUE FOR ALL TIME SHEETS:
TIME SHEET DE 120-2:
TIME SHEET DE 120-3:
TIME SHEET DE 134-1:
FILING FEE:
V.
$ 211.86
$ (194.61)
$
17.25
$ 886.00
$ 177.50
$
17.25
$ 1,080.75
$ 350.00
$ 1,430.75
Injunctive Relief
Plaintiffs request an injunction barring Kladis from sexually harassing future employees,
and subjecting them to an unfair, hostile, and biased work environment [DE 117; DE 137].
While plaintiffs no longer work for Kladis, the plaintiffs contend that there is nothing stopping
him from continuing these actions against current or future employees of the restaurant, and in
fact plaintiffs’ counsel has been contacted by another individual who apparently filed a charge of
discrimination with the EEOC.
While the Court does not question its authority to provide injunctive relief under 42
U.S.C. § 2000e-5 for intentional unlawful employment practices, see E.E.O.C. v. Ilona of
Hungary, Inc. 108 F.3d 1569, 1578 (7th Cir. 1997), the plaintiffs have not shown that an
injunction is appropriate here. Here, plaintiffs no longer work for defendant and thus are not
likely to be the victim of any further discrimination. Moreover, the plaintiffs have not
sufficiently established that the discriminatory conduct could possibly persist in the future. Id.
Rather, the plaintiffs merely speculate that Kladis will continue to engage in discriminatory
practices, and have provided insufficient details concerning an unknown individual alleged to
have filed a charge of discrimination with the EEOC. The Court also believes that the award of
33
damages and fees in this case serves as a sufficient deterrent to prevent these particular
defendants from engaging in any further intentionally discriminatory employment practices.
VI.
Conclusion
The Court enters final judgment on the jury’s verdict [DE 108] and finds that Defendants
Nick Kladis and Nick’s American Pancake & Café, Inc. (a/k/a American Pancake House), are
jointly and severally liable for payment of:
$500 plus post judgment interest accruing at a rate of 0.11% to Angela Heyne and $500
plus post judgment interest accruing at a rate of 0.11% to Angela King for their respective
successful battery claims, while the remaining $3,000 plus post judgment interest accruing at a
rate of 0.11% on the battery claims shall be paid to the victims compensation fund. With respect
to this award, the defendants shall make payment of $4,000 plus post judgment interest to the
clerk of the court, Ind. Code 34-51-3-6(b), and the clerk of the court is DIRECTED to pay
Angela Heyne and Angela King each 25% of their individual punitive damage award of $2,000
plus post judgment interest, and deposit the remaining 75% of each the awards into the violent
crime victims compensation fund established by Ind. Code 5-2-6.1-40, pursuant to Ind. Code 3451-3-6(c);
$10,000 plus post judgment interest accruing at a rate of 0.11% in punitive damages to
Angela Heyne for her success on her Title VII sexual harassment claim;
$10,000 plus post judgment interest accruing at a rate of 0.11% in punitive damages to
Angela King for her success on her Title VII retaliation claim;
an award to Angela Heyne for back pay in the amount of $15,820.00, plus prejudgment
interest at the rate of 3.25 %, compounded annually since February 2010, and post judgment
interest accruing at a rate of 0.11%;
an award to Angela King for back pay in the amount of $728.00 plus prejudgment
interest at the rate of 3.25 %, compounded annually since February 2010, and post judgment
interest accruing at a rate of 0.11%.
Defendants Nick Kladis and Nick’s American Pancake & Café, Inc. (a/k/a American
Pancake House), are also jointly and severally liable for the payment of attorneys’ fees in the
amount of $103,605.70 and taxable costs in the amount of $1,430.75 to the law firm of Roberts
& Bishop.
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For the reasons stated herein, the plaintiffs’ motions for a permanent injunction are
DENIED [DE 116; DE 137; DE 138], the plaintiffs’ motion for attorneys’ fees, costs and expert
fees is GRANTED IN PART AND DENIED IN PART [DE 119], the defendants’ motions to
strike are DENIED [DE 122; DE 123; DE 139].
SO ORDERED.
ENTERED: November 15, 2013
/s/ JON E. DEGUILIO
Judge
United States District Court
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