Laney v. Getty et al
Filing
136
MEMORANDUM OPINION AND ORDER: 1. Plaintiff Laney's motion for costs and attorneys' fees under Employee Polygraph Protection Act, 29 U.S.C. § 2001 et seq. 122 is GRANTED, in part. Plaintiff will be awarded attorneys' fees in the amount of $54,266.58 and costs in the amount of $5,079.50. 2. Plaintiff Laney's bill of costs 121 is DISALLOWED as redundant with the motion for costs and attorneys' fees 122 . 3. Plaintiff Laney's motion to deem his motion for costs to have the same effect as a Rule 59 motion 130 is DENIED as moot. Signed by Judge Danny C. Reeves on 10/14/2014. (STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
E. SCOTT LANEY,
Plaintiff,
V.
RICHARD A. GETTY, et al.,
Defendants.
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Civil Action No. 5: 12-306-DCR
MEMORANDUM OPINION
AND ORDER
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Previously, the Court granted summary judgment in favor of Defendants Richard
Getty, Albert Borne, Stoner Mill Farm LLC, The Getty Law Group PLLC, and Borne
Investigations, Inc., concerning Plaintiff E. Scott Laney’s wrongful termination claim under
29 U.S.C. § 2002(3). [Record No. 106] The Court subsequently granted summary judgment
in favor of Laney on his remaining 29 U.S.C. § 2002(1) claim and denied the defendants’
request for costs and attorneys’ fees. [Record No. 117] Laney was awarded nominal
damages of $1.00. [Record No. 118] The matter is currently pending for consideration of
the plaintiff’s motion for attorneys’ fees and costs under the Employee Polygraph Protection
Act, 29 U.S.C. § 2001 et seq. (“EPPA”). [Record No. 122] The defendants oppose the
motion. [Record No. 125] Having further reviewed this matter, the plaintiff will be awarded
$54,266.58 in attorneys’ fees and $5,079.50 in costs.1
1
Laney also moves the Court to deem his motion for attorneys’ fees to have the same effect as a Rule 59
motion to alter or amend, extending the deadline for appeal. [Record No. 130] That motion will be denied.
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The defendants continue to argue against an award of any attorneys’ fees. [Record
No. 125] The Court has considered this argument [Record No. 117] and reconsidered it at
the defendants’ request [Record No. 126] and declines to address it further. Title 29 of the
United States Code, § 2005(c)(3), provides that “[t]he court, in its discretion, may allow the
prevailing party (other than the United States) reasonable costs, including attorney’s fees.”
The Court entered judgment against the defendants in favor of Laney on his § 2002(1) claim.
[Record No. 117] Therefore, Laney is a prevailing party. Hensley v. Eckerhart, 461 U.S.
424, 425 (1983) (a plaintiff may be considered a prevailing party if he succeeds on any
significant issue in litigation which achieves some of the benefit the party sought). The
Supreme Court has held that a prevailing party “should ordinarily recover an attorney’s fee
unless special circumstances would render such an award unjust.” Id. at 429 (internal
quotation marks omitted).
Further, the Sixth Circuit has indicated that, absent special
circumstances, a district court does not have discretion and must award attorneys’ fees.2
Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. Of Educ., 360 F.3d 604, 611 (6th Cir.
2004).
I.
Timing of the Motion
As a threshold matter, the defendants contend that the plaintiff’s motion is premature
because the Court’s June 23, 2014 Judgment is not final. [Record No. 125] According to the
defendants, the motion to alter or amend under Federal Rule of Civil Procedure 59 tolled the
deadline for filing an appeal and destroyed the finality of the Court’s Judgment.
The
2
The Court has already—and at great lengths – distinguished this case from Farrar v. Hobby, 506 U.S. 103
(1992), where no attorneys’ fees were awarded to a plaintiff who sought $17 million in damages, litigated for 10
years, and received nominal damages of $1.00. [Record No. 126] Despite the defendants’ urging, the Court will not
apply Farrar here.
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defendants rely on Local Rule 54.4. However, the rule states, in relevant part, that a motion
for attorneys’ fees “must be filed no later than thirty (30) days after entry of judgment.” LR
54.4.
As the plaintiff correctly argues, this language does not preclude a motion for
attorneys’ fees earlier than thirty days after the entry of final judgment. Although the Sixth
Circuit has found that a timely-filed Rule 59 motion destroys the finality of judgment and
extends the deadline for filing motions for attorneys’ fees, it has not suggested that the filing
of a motion for fees before the deadline is premature. Miltimore Sales v. Int’l Rectified, Inc.,
412 F.3d 685 (6th Cir. 2005). Regardless, the Court has already denied the motion to alter,
amend, or vacate, rendering this argument moot. [Record No. 126] In short, the defendant’s
argument that the motion is premature is without merit.
II.
Lodestar Amount
Given the scarcity of case law under the EPPA, it is not surprising that the Court must
look outside of cases interpreting the act to properly frame the plaintiff’s motion. Cases
involving attorneys’ fees in employment discrimination contexts are particularly instructive.
Courts within the Sixth Circuit calculate attorney fees in employment discrimination cases
using the “lodestar” method. Imwalle v. Reliance Med. Prods., 515 F.3d 531, 552 (6th Cir.
2008) (citing Hensley, 461 U.S. at 433) (applying the lodestar method in the Age
Discrimination in Employment Act, 29 U.S.C.S. § 623(d) and Title VII, 42 U.S.C. § 2000e3(a), context).
The Court’s primary concern in awarding attorney’s fees is the reasonableness of the
fee. A reasonable fee is that which “adequately compensatory to attract competent counsel
yet which avoids producing a windfall for lawyers.” Adcock-Ladd v. Sec’y of Treasury, 227
F.3d 343, 349 (6th Cir. 2000). In determining the amount of an attorneys’ fee award, courts
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begin by calculating the fee applicant’s “lodestar,” which is the “proven number of hours
reasonably expended on the case by an attorney, multiplied by a reasonable hourly rate.”
Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005) (citing Hensley, 461 U.S. at
435). As discussed below, the reasonable hourly rate is $300.00 for Michael Cox and
$180.00 for David Cox. Michael Cox reasonably expended 289.7 hours, while David Cox
reasonably expended 5.0 hours. Thus, the lodestar amount of attorneys’ fees is $87,810.00.3
A.
Reasonable Hourly Rate
Laney seeks compensation based on his attorneys’ hourly rate. [Record No. 122]
The first step in determining a reasonable rate is to look at the “prevailing market rate in the
relevant community.” Adcock-Ladd, 227 F.3d at 350. This is defined as the rate which
“lawyers of comparable skill and experience can reasonably expect to command within the
venue of the court record.” Id. Under this standard, the Court looks at the prevailing hourly
rates for practitioners in the Eastern District of Kentucky.
The requested hourly rates reflect counsels’ respective training, background,
experience, and skill. Michael J. Cox, lead counsel for the plaintiff, has over 25 years of
experience, concentrated in trial and litigation with extensive experience in employment
cases. Michael Cox handled the vast majority of the billable hours in the case and brought
significant experience and ability to bear on the case. He bills his clients at $300.00 an hour.
[Record No. 113-1] David Brent Cox, assistant counsel, has practiced for over five years.
He bills at $200.00 an hour. [Id.] The plaintiff’s counsel has submitted affidavits and case
law touting the reasonableness of these hourly rates for attorneys of comparable experience
3
(289.7 x $300.00) + (5.0 x $180.00) = $87,810.00
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in the community. [Id.] Further, the defendants have not produced evidence to suggest that
these rates are unreasonable.
However, district courts are not required to adopt the attorneys’ fee rates charged by
the highest paid attorneys in town to their most lucrative clients. See Maxwell’s Pic-Pac,
Inc. v. Dehner, 2013 U.S. Dist. LEXIS 34596, at *13 (W.D. Ky. Mar. 13, 2013). The rates
requested in this case operate simply as a starting point from which the Court determines the
appropriate market rate for attorneys with sufficient competence and experience to pursue
their client’s goals. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007). To
this end, the Court reviews recent attorneys’ fees cases. The Court has accepted rates of
$300.00 and $150.00 for partner- and associate-level experience, respectively. Am. Canoe
Ass’n v. City of Louisa, 683 F. Supp. 2d 480, 488 (E.D. Ky. 2010). See also ACLU of Ky. v.
McCreary Cnty., 2009 U.S. Dist. LEXIS 22206, at *4 (E.D. Ky. Mar. 13, 2009) ($300.00
hourly rate for experienced attorney in Kentucky and $180.00 was reasonable for an
associate in Kentucky in 2009).
Based on the foregoing, the requested $300.00 is a reasonable hourly rate for an
experienced attorney such as Michael Cox. However, the Court concludes that $200.00 is an
unreasonable hourly rate for an attorney in Kentucky with only five years of experience. As
a result, David Cox’s hourly rate will be reduced to $180.00 per hour, because his level of
experience simply does not support the higher rate sought.
B.
Hours Reasonably Expended
Laney’s counsel is only entitled to bill for hours “reasonably expended.” Hensley,
461 U.S. at 434. The party asking for an award of fees should “exercise billing judgment
with respect to the hours worked.” Id. at 437. Attorneys who seek fees have an obligation to
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“maintain billing time records that are sufficiently detailed to enable courts to review the
reasonableness of the hours expended on the case. Imwalle, 515 F.3d at 552. The Sixth
Circuit has explained that, in “obtaining the number of hours expended on the case, the
district court must conclude that the party seeking the award has sufficiently documented its
claim.” Id. Here, the plaintiff’s billing statements document time billed beginning June 22,
2012, and ending July 23, 2014. This period of time corresponds with Laney’s subject
meeting with the defendants on June 22, 2012, and the date he filed the motion for attorney
fees and costs, July 23, 2014.
The documentation is sufficient to allow the Court to
determine the reasonable number of hours expended.
1.
Unsuccessful Claims
Laney seeks payment for all of the hours spent on this litigation. The defendants
argue that counsel should not recover attorneys’ fees for the time spent litigating Laney’s
unsuccessful claim for wrongful termination. [Record No. 125] A plaintiff is not entitled to
fees for work undertaken on unsuccessful claims that are sufficiently distinct from his
successful claims. Imwalle, 515 F.3d at 552. The Supreme Court in Hensley, however,
expressly prohibited district courts from determining fees based on the success or failure of
individual claims where the claims arise from a common core of facts or related legal
concepts. 461 U.S. at 488; cf. Déjà vu of Nashville v. The Metro. Gov’t. of Nashville and
Davidson Cnty., Tenn., 421 F.3d 417, 423 (6th Cir. 2005). Instead, such claims “should not
be treated as distinct claims” for the purpose of calculating attorneys’ fees, and “the cost of
litigating the related claims should not be reduced.” Thurman v. Yellow Freight Sys., Inc., 90
F.3d 1160, 1169 (6th Cir. 1996). In fact, awarding fees for services connected to related,
albeit unsuccessful, claims fulfills the underlying purpose of the EPPA’s attorneys’ fees
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provision by encouraging counsel to take clients under the Act that might not otherwise
receive representation.
Laney’s claims relied upon the same legal theories since both arose under the EPPA.
The underlying facts of each claim were also related, concerning the June 22, 2012 meeting
and termination of the plaintiff’s employment. Thus, the claims will be treated as related for
the calculation of attorneys’ fees. See Imwalle, 515 F.3d at 555 (upholding a district court’s
award of fees because “[c]ommon facts [were] at the heart of all of [the plaintiff’s] claims,
both successful and unsuccessful”).
2.
Pre-Suit Settlement Demands
The defendants argue that Laney should not be awarded attorneys’ fees for hours
billed for settlement activities undertaken before litigation commenced. [Record No. 125]
Specifically, the defendants object to the 5.6 hours billed for drafting a demand letter to
Nancy Harney before the plaintiff’s Complaint was filed. Time spent negotiating settlement
of a dispute and drafting demand or settlement documents is a necessary expense of
litigation. See Nature Conservancy, Inc. v. Sims, 2013 U.S. Dist. LEXIS 46868, at *5 (E.D.
Ky. Mar. 28, 2013). Moreover, disallowing attorneys’ fees for settlement negotiations would
chill attorneys’ pre-trial settlement efforts. Id. After examining the billing record, it oes not
appear that the number of hours spent drafting and revising the subject demand letter was
excessive. Therefore, the allotted time will not be disturbed.
3.
Specificity of Time Entries
Next, the defendants challenge Laney’s billing entries as vague and indecipherable,
arguing that the descriptions contained in the billing statement fail to identify the subject
matter of the activity involved.
Specifically, the defendants point to entries such as
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“Continue Research” and “Attention to” and those redacted for attorney-client privilege.
[Record No. 125, p. 6] The defendants also object to the “block-billing” entries that lump
together multiple tasks, arguing that such entries make it impossible to “accurately determine
the amount of time spent on each task.” [Record No. 125, p. 4]
The key requirement for an award of attorneys’ fees is that “[t]he documentation
offered in support of the hours charged must be of sufficient detail and probative value to
enable the court to determine with a high degree of certainty that such hours were actually
and reasonably expended in the prosecution of the litigation.” United Slate, Local 307 v.
G&M Roofing & Sheet Metal Co., 732 F.2d 495, 502 n. 2 (6th Cir. 1984).
Where
documentation is inadequate, the district court may reduce the award accordingly. Hensley,
461 U.S. at 433. Although counsel need not “record in great detail” each minute he or she
spent on an item, the general subject matter should be identified. Imwalle, 515 F.3d at 533.
The Sixth Circuit has upheld awards of attorneys’ fees where entries made by counsel
in billing records “were sufficient even if the description for each entry was not explicitly
detailed.” McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005). Similarly, this Court
has held that claimants met their burden to provide detailed billing records where counsel
provided the Court with “itemized statements describing the subject matter, the attorney, the
time allotment, and the charge for all work done.” Anderson v. Wilson, 357 F. Supp. 2d 991,
999 (E.D. Ky. 2005).
Laney’s counsel submitted thirteen pages of detailed, itemized billing records that
specify, for each entry, the date that the time was billed, the individual who billed the time,
the fractional hours billed, and the specific task completed. [Record No. 122-1] Each page
of the billing record contains a heading identifying the client, matter number, and
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description, and the billing statement appears to have been computer-generated.
Furthermore, the billing records appear to have been maintained contemporaneously with the
completion of the work and indicate the general nature of the tasks performed. The majority
of the billing entries, when taken in the context of the time period and the corresponding
proceedings, are sufficiently descriptive of the tasks performed by the attorneys. A billing
entry which states that the time billed was spent on “Continued Research” is sufficiently
descriptive when previous entries describe the subject of the research. The products of
counsel’s expended effort – the motions and responses filed in this Court – speak for
themselves regarding the specific tasks which were performed, such as writing, proofreading,
cite-checking, and editing, as well as the specific subjects covered. See United States v. GE,
387 Fed. Appx. 144, 149 (6th Cir. 2010).
Further, the defendants’ objection to the format of Laney’s billing record is without
merit. The argument that the use of block billing is contrary to the award of a reasonable
attorneys’ fee is unsupported by relevant authority. To the contrary, the Sixth Circuit has
held that, where counsel has provided a detailed description of activities, block billing “is
sufficient to assess whether the cost of the service is reasonably related to the quality or
extent of service” in determining attorneys’ fees. Pittsburgh & Conneaut Dock Co. v. Dir.,
OWCP, 456 F.3d 616, 625 (6th Cir. 2006).
However, the two entries that have been redacted by the plaintiff’s counsel to protect
privileged information do not provide sufficient descriptions. The entries do not identify
even a general subject matter of the tasks performed. [Record No. 122-1, pp. 12-13] As a
result, the 0.9 hours redacted from the billing record will be excluded from the attorneys’
fees award.
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III.
Adjustments
To ascertain an adequately compensatory attorneys’ fee without creating a windfall
for lawyers, the Court adjusts the lodestar amount to reflect relevant considerations specific
to the subject litigation. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). The defendants
here ask for an overall downward adjustment beyond the lodestar calculation. This request
will be granted.
A.
Degree of Success
A crucial factor in Sixth Circuit determinations of reasonable attorneys’ fees is the
degree of success achieved in the lawsuit. See White v. Burlington N. & Santa Fe Ry., 364
F.3d 789 (6th Cir. 2004). The Sixth Circuit has “repeatedly rejected mechanical reductions
in fees based on the number of issues on which a plaintiff has prevailed.” Déjà vu, 421 F.3d
at 423. However, “where a plaintiff has obtained excellent results, his attorney should
recover a full compensatory fee; if a plaintiff obtains limited success, the district court should
award only that amount of fees that is reasonable in relation to the success obtained.” Isabel,
404 F.3d at 416.
Although the defendants emphasize Laney’s nominal damages award of $1.00, the
award alone is not a sufficient measure of success. Am. Canoe, 683 F. Supp. 2d at 494. The
Court weighed factors unrelated to success when determining the amount of damages.
Nevertheless, if a plaintiff has achieved only partial success, the lodestar amount may be
excessive, “even where a plaintiff’s claims were interrelated, nonfrivolous, and raised in
good faith.” Hensley, 461 U.S. at 436. While there is no precise rule or formula to
determine the degree of success, the Sixth Circuit provides guidance.
In Kentucky
Restaurant Concepts, the Sixth Circuit affirmed an award that reduced the lodestar 35% for
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partial success. 117 F. App’x 415, 421-22 (6th Cir. 2004). According to the court in
Kentucky Restaurant, the plaintiffs achieved a “good” but not “excellent” result and no longterm relief. Id. at 421.
Here, as in Kentucky Restaurant, a downward adjustment is appropriate. Laney
pursued two claims under the EPPA. While his wrongful termination claim failed, his EPPA
claim succeeded. The Court has already held that Laney succeeded on a significant issue and
achieved some of the benefit sought. [Record No. 126] Even in the wrongful termination
claim that ultimately failed, the Court found that Laney sufficiently established a prima facie
case. [Id. p. 7] Although those efforts were not successful, they were not frivolous. After a
consideration of the totality of the relief obtained and the amount of time and fees expended,
a 40% reduction is appropriate. The compensable amount will be reduced from the lodestar
$87,810.00 to $52,686.00.
B.
Time Spent on Attorneys’ Fees Calculation
In addition to the lodestar amount above, the plaintiff’s counsel billed $3,570.00 for
the time spent working on the motion for attorneys’ fees itself. [Record No. 122-1, p. 16]
The Sixth Circuit has held that “a lawyer should receive a fee for preparing and successfully
litigating the attorney fee case after the original case is over.” Coulter v. Tennessee, 805
F.2d 146, 151 (6th Cir. 1986).
Absent unusual circumstances, “the hours allowed for
preparing and litigating the attorneys’ fee case should not exceed 3% of the hours in the main
case when the issue is submitted on the papers without a trial.” Id. The $3,570.00 represents
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nearly 7% of Laney’s fee award for the main litigation.4 Thus this amount will be reduced
for excessiveness.
The fee award for time spent calculating the appropriate attorneys’ fees will make up
no more than 3% of the total award, the highest amount appropriate in a case submitted on
the papers. Thus, the plaintiff’s award for attorney-fee-litigation hours will be capped at
$1,580.58. Therefore, the total amount of total attorneys’ fees compensable, including this
capped amount, is $54,266.58.
IV.
Costs
Laney also seeks to recover litigation expenses in the amount of $5,079.50.5 [Record
No. 122] The requested expenses include transcripts and filing fees, which are properly
taxable under 28 U.S.C. § 1920.
The defendants do not specifically object to the
reasonableness of the costs. Thus, the plaintiff will be awarded costs in the amount of
$5,079.50.
V.
Plaintiff’s Request for Rule 59 Motion
Under the Federal Rules of Civil Procedure, a motion for award of costs or attorneys’
fees does not toll the filing deadline for an appeal. Fed. R. Civ. P. 58(e). However, Laney
has filed a motion under Fed. R. Civ. P. 58(e) for his motion for attorneys’ fees and costs to
have the same effect as a timely motion under Rule 59(e) to alter or amend a judgment.
[Record No. 130] Granting this motion would allow the parties additional time to appeal the
4
$3,570.00 / $52,686.00 = 6.8%
5
The record reflects two different amounts sought for the plaintiff’s costs. In the bill of costs, Laney
requests $5,028.85. [Record No. 121] However, in his motion for attorneys’ fees, he requests $5,079.50. [Record
No. 122] Upon comparison, the two requests cover the same expenses, with a few additions in the motion for
attorneys’ fees. The Court will therefore address the costs sought in Record No. 122 and dispose of the bill of costs
in Record No. 121.
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Court’s Judgment. Because notices of appeal have already been filed in this case, the motion
will be denied as moot. [Record Nos. 133-135]
VI.
Conclusion
For the reasons discussed above, it is hereby
ORDERED as follows:
1.
Plaintiff E. Scott Laney’s motion for costs and attorneys’ fees under the
Employee Polygraph Protection Act, 29 U.S.C. § 2001 et seq. [Record No. 122] is
GRANTED, in part.
The plaintiff will be awarded attorneys’ fees in the amount of
$54,266.58 and costs in the amount of $5,079.50.
2.
Plaintiff Laney’s bill of costs [Record No. 121] is DISALLOWED as
redundant with the motion for costs and attorneys’ fees [Record No. 122].
3.
Plaintiff Laney’s motion to deem his motion for costs to have the same effect
as a Rule 59 motion [Record No. 130] is DENIED as moot.
This 14th day of October, 2014.
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