Fordyce v. Prince George's County Maryland
Filing
54
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/22/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JILL FORDYCE
:
v.
:
Civil Action No. DKC 13-0741
:
PRINCE GEORGE’S COUNTY, MARYLAND
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case is a motion for attorney’s fees
filed by Plaintiff Jill Fordyce (“Plaintiff”).
(ECF No. 49).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the motion will be granted in part and denied
in part.
I.
Background
Plaintiff’s original complaint brought claims alleging five
counts of retaliation under Title VI; Title VII; Title IX; Title
20 of the State Government Articles of the Maryland Code; and
Sections 42(a), 2-186, and 2-222 of the Prince George’s County
Code
against
(“Defendant”).
Defendant
Prince
(ECF No. 1).
George’s
County,
Maryland
The complaint sought declaratory
judgment and $1,000,000.00 in compensatory and punitive damages.
(Id. at 9).
Plaintiff alleged that Defendant retaliated against
her and created a retaliatory hostile work environment when it
disciplined her and transferred her to a different unit.
Following discovery, Defendant moved for summary judgment.
(ECF No. 12).
Plaintiff filed a response in opposition (ECF No.
13), and Defendant replied (ECF No. 14).
On August 25, 2014,
the undersigned granted in part and denied in part Defendant’s
motion, entering judgment for Defendant on three counts.
Nos. 15; 16).
and
Title
VI
(ECF
Plaintiff’s retaliation claims under Title VII
survived
summary
judgment.
On
May
15,
2015,
following three days of testimony, a jury found that Defendant
retaliated against Plaintiff by transferring her to a different
unit and awarded her $2,000 in compensatory damages.
43).
(ECF No.
On May 29, 2015, Plaintiff filed the pending motion for
attorney’s
Defendant
fees,
filed
requesting
a
response
$269,250.00.
in
opposition
(ECF
(ECF
No.
No.
52),
49).
and
Plaintiff replied (ECF No. 53).
II.
Analysis
Under 42 U.S.C. § 1988, “the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as
part of the costs.”
“The purpose of [Section] 1988 is to ensure
effective access to the judicial process” for persons with civil
rights grievances.
(1983)
(citation
Hensley v. Eckerhart, 461 U.S. 424, 429
and
internal
quotation
marks
omitted).
“Congress enacted [Section] 1988 specifically because it found
2
that the private market for legal services failed to provide
many victims of civil rights violations with effective access to
the judicial process.”
City of Riverside v. Rivera, 477 U.S.
561, 576 (1986) (citations omitted).
market
failure
in
part
to
the
Congress attributed this
fact
that
“[t]hese
victims
ordinarily cannot afford to purchase legal services at the rates
set by the private market.”
Id. (citations omitted).
“The
first determination to be made by the district court is whether
the plaintiff is a prevailing party.
The second determination
is whether an award of attorney’s fees should be granted to the
prevailing party and what amount would be reasonable under the
specific circumstances of the case.”
Feldman v. Pro Football,
Inc., 806 F.Supp.2d 845, 847 (D.Md. 2011).
not
dispute
that
Plaintiff
was
the
Here, Defendant does
prevailing
party
and
is
entitled to at least some attorney’s fees.1
“The proper calculation of an attorney’s fee award involves
a three-step process.”
McAfee v. Boczar, 738 F.3d 81, 88 (4th
1
Defendant does argue that Plaintiff should be denied all
requested attorney’s fees because Plaintiff’s counsel did not
provide opposing counsel quarterly statements showing the amount
of time spent on the case and the total value of the time as
required by the Local Rules.
Local Rules App’x B, at 1(c).
However, the Local Rules also state that “[o]pposing counsel may
not seek a denial or reduction of fees from the court if he/she
did not first request that such statements be provided.”
Id.
n.3.
Although Defendant briefly asserts that “the statements
were requested in writing,” (ECF No. 52, at 4), it provides no
support for this assertion.
3
Cir. 2013).
The United States Court of Appeals for the Fourth
Circuit has outlined the three steps:
First,
the
court
must
“determine
the
lodestar figure by multiplying the number of
reasonable hours expended times a reasonable
rate.”
Robinson v. Equifax Info. Servs.,
LLC, 560 F.3d 235, 243 (4th Cir. 2009).
To
ascertain what is reasonable in terms of
hours expended and the rate charged, the
court is bound to apply the factors set
forth in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Id. at 243-44.
Next, the court must
“subtract
fees
for
hours
spent
on
unsuccessful claims unrelated to successful
ones.”
Id. at 244.
Finally, the court
should
award
“some
percentage
of
the
remaining amount, depending on the degree of
success enjoyed by the plaintiff.” Id.
McAfee, 738 F.3d at 88.
The Johnson factors, as characterized
by the Fourth Circuit are: (1) the time and labor expended; (2)
the novelty and difficulty of the questions raised; (3) the
skill required to properly perform the legal services rendered;
(4) the attorney’s opportunity costs in pressing the instant
litigation;
(5)
the
customary
fee
for
like
work;
(6)
the
attorney’s expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the
amount
in
controversy
and
the
results
obtained;
(9)
the
experience, reputation and ability of the attorney; (10) the
undesirability of the case within the legal community in which
the suit arose; (11) the nature and length of the professional
4
relationship between attorney and client; and (12) attorneys’
fees awards in similar cases.
A.
Lodestar Figure
1.
Id. at 88 n.5.
Hourly Rate
Plaintiff
bears
the
burden
reasonableness of the hourly rate.
of
establishing
the
Id. at 91 (citing Plyler v.
Evatt, 902 F.2d 272, 277 (4th Cir. 1990)).
“A fee applicant is
obliged to show that the requested hourly rates are consistent
with the ‘prevailing market rates in the relevant community for
the type of work for which she seeks an award.’”
Plyler, 902 F.2d at 277).
Id. (quoting
“‘In addition to the attorney’s own
affidavits, the fee applicant must produce satisfactory specific
evidence
of
the
prevailing
market
rates
in
the
relevant
community for the type of work for which he seeks an award,’
including, for example, ‘affidavits of other local lawyers who
are familiar both with the skills of the fee applicants and more
generally with the type of work in the relevant community.’”
Corral v. Montgomery Cnty., 91 F.Supp.3d 702, 713 (D.Md. 2015)
(quoting Robinson, 560 F.3d at 244).
Here,
Plaintiff
submits
an
affidavit
from
her
attorney,
Bryan Chapman, in support of his requested rate of $300 per
hour.
(ECF No. 49-2).
Mr. Chapman represents that his usual
hourly rate is $300 and that he has been practicing law for
twenty-two years.
(Id. ¶¶ 7-8).
5
Plaintiff argues that the
requested rate is reasonable because it is at the low end of the
court’s
guidelines
App’x B, at 3(e).2
regarding
hourly
rates.
See
Local
Rules
Defendant counters that the requested rate is
too high in light of Mr. Chapman’s history of sanctions and
violations.
(ECF No. 52, at 10-11).
Additionally, Defendant
notes that Plaintiff has not provided “any specific, independent
evidence
of
the
prevailing
market
rates
to
substantiate
his
claimed hourly rate,” such as affidavits from other lawyers.
(Id. at 10).
Defendant contends that an hourly rate of $150
would be more appropriate in light of his history of sanctions,
“as well as his questionable billing practices demonstrated in
the instant matter.”
Although
provide
the
“practical
(Id. at 11).
guidelines
guidance”
set
forth
regarding
in
the
the
Local
Rules
reasonableness
of
fees, “[t]he factors established by case law obviously govern
over
them”
and
“the
[c]ourt
appropriately supported.”
expects
all
claims
to
be
Local Rules App’x B, at n.6;
see
Corral, 91 F.Supp.3d at 712-16; Blake v. Baltimore Cnty., 12
F.Supp.3d 771, 775 (D.Md. 2012) (“The Local Rule is a guideline
rather than a mandatory range.”); Saman v. LBDP, Inc., No. DKC12-1083, 2013 WL 6410846, at *3 (D.Md. Dec. 6, 2013) (reducing
the
proposed
hourly
rate
because
2
the
plaintiff
provided
no
The guidelines provide that lawyers admitted to the bar
for twenty (20) or more years have an hourly rate between $300
and $475.
6
supporting
documentation).
guidelines,
requested
a
“fee
hourly
Accordingly,
applicant
rates
are
is
notwithstanding
obliged
consistent
to
show
with
the
‘the
that
the
prevailing
market rates in the relevant community for the type of work for
which she seeks an award.’”
Plyler,
902
evidence
F.2d
beyond
at
Mr.
McAfee, 738 F.3d at 91 (quoting
277).
Here,
Chapman’s
Plaintiff
affidavit
has
that
provided
the
no
requested
hourly rate is reasonable and consistent with the prevailing
market rates for similar work.
In addition, much of the work
included in the fee request, such as extensive legal research,
preparation of discovery requests, and reviewing documents, is
work
that
could
experience.
be
done
Therefore,
by
Mr.
someone
Chapman’s
with
far
hourly
less
rate
legal
will
be
reduced to $225.3
2.
“The
Hours Worked
fee
applicant
must
also
establish
expenditure of time in pursuing the case.
lodestar
calculation
initial
fee
requires
calculation
the
hours
3
court
that
the
reasonable
This stage of the
to
exclude
were
not
from
its
reasonably
Defendant requests an hourly rate of $150 because it is
the “lowest compensable rate” in the guidelines.
(ECF No. 52,
at 10-11). However, this ignores the fact that Mr. Chapman has
been admitted to the bar for over twenty (20) years. As such,
it would not be appropriate to use the lowest suggested hourly
rate for lawyers admitted to the bar for less than five (5)
years.
Absent additional supporting documentation, $225 is an
appropriate compromise between the parties’ requested rates.
7
expended.”
quotation
Corral, 91 F.Supp.3d at 716 (citations and internal
marks
omitted).
Plaintiff’s
attorney
provides
itemized time records that list the date of the work, the time
spent, and a brief description of the work performed.
49-3).
(ECF No.
Mr. Chapman asserts that the time spent is reasonable
because Plaintiff obtained an “exceptional result” and because
Defendant
vigorously
proceeding.”
opposed
“virtually
(ECF No. 49-1, at 4-6).
every
stage
of
the
Mr. Chapman also contends
that he has “eliminated hundreds of hours in the exercise of
billing
judgment.”
(Id.
at
3).
Defendant
counters
that
Plaintiff’s fee request is “wildly disproportionate to the work
necessary to prosecute such a case,” particularly because it is
approximately 134 times greater than the amount of the judgment
awarded.
billing
does
(ECF No. 52, at 7).
entries
not
are
highlight
Defendant also argues that the
unacceptably
specific
vague.
entries,
but
Defendant
generally
instead
challenges
Plaintiff’s excessive billing and the vagueness of the billing
statements as a whole.
As an initial matter, Defendant argues that Plaintiff’s fee
recovery should be reduced because the billing statement is not
separated by litigation phase as required by the Local Rules.
See Local Rules App’x B, at 1(b).
Although Plaintiff did not
submit billing records with headings categorizing the entries,
the entries are arranged chronologically and contain sufficient
8
information to organize them into rough categories.
49-3).
(ECF No.
The entries will be grouped as follows: entries from
February 2 through March 13, 2013 will be discussed under “case
development and pleadings”; entries from April 14 through July
18, 2013 will be discussed under “discovery”; entries from July
20, 2013 through July 30, 2014 will be discussed under “motions
practice”; entries from August 25, 2014 through May 11, 2015
will
be
discussed
under
“settlement
conference
and
trial
preparation”; entries from May 12 through May 14, 2015 will be
discussed under “trial”; and entries from May 18 through May 29,
2015 will be discussed under “fee petition preparation.”
a.
Case Development and Pleadings
Plaintiff’s counsel seeks fees for 58.5 hours during this
stage, which included legal research, meetings with Ms. Fordyce,
reviewing
notes
that
documents,
Mr.
and
Chapman’s
drafting
the
complaint.
practice
has
focused
discrimination law for approximately 22 years.
11).
Defendant’s
insinuation
is
that,
on
Defendant
employment
(ECF No. 52, at
given
his
extensive
experience, Mr. Chapman should be able to complete tasks more
efficiently than a less experienced lawyer.
However, in light
of the multiple counts in the complaint and the fact-intensive
nature of employment discrimination cases, Mr. Chapman’s request
of 58.5 hours appears reasonable and will be credited.
9
b.
Discovery
Plaintiff
discovery.
“legal
requests
142
hours
for
Mr.
Chapman’s
work
on
This work included “preparing discovery requests,”
research,”
“reviewing
documents,”
and “responding to discovery requests.”
“preparing
outline,”
Defendant argues that
this figure is unreasonable because Plaintiff did not take any
depositions
(ECF
No.
and
52,
only
at
“engaged
7).
in
Defendant
minimal
also
written
alleges
discovery.”
at
least
four
instances during this period when Mr. Chapman billed substantial
time in this case and in Everhart v. Board of Education of
Prince
George’s
County,
PJM-11-1196,
discrimination case on the same day.
another
(Id. at 8).
employment
For each of
the four dates in question, Plaintiff requests between 16 and
18.5 hours in billed time between the two cases.
Plaintiff does
not dispute the allegation of double-billing or respond to it in
any
way
in
her
reply.
Although
working
such
hours
may
be
reasonable, particularly when approaching key deadlines in one
or more cases, the dates of alleged double-billing were more
than two months before the close of discovery and no discovery
deadlines
were
discovery
that
looming.
In
light
in
this
occurred
of
the
case
limited
and
the
nature
of
unrefuted
allegations of double-billing, 142 hours is not a reasonable
amount
for
which
to
seek
reimbursement.
10
Accordingly,
Mr.
Chapman
will
be
credited
with
71
hours,
a
fifty
percent
reduction in time requested.
c.
Motions Practice
Plaintiff
litigation.
because
requests
Defendant
Defendant
reveals
that
hours
contends
filed
Plaintiff filed none.
period
214.75
only
for
that
one
this
this
is
portion
of
unreasonable
dispositive
motion
and
A close review of the entries for this
the
request
is
unreasonable.
Plaintiff
filed a status report on August 19, 2013 indicating that she did
not
intend
billing
to
file
statement
a
motion
for
contains
summary
multiple
judgment,
subsequent
but
the
entries
purportedly for “preparation for summary judgment.”
In all,
Plaintiff seeks fees for 104 hours of motions practice time
after the decision not to file summary judgment was communicated
but before Defendant filed its summary judgment motion.
preparation
in
advance
of
Defendant’s
judgment motion was warranted.
not
reasonable
preparation
of
judgment motion.
when
added
Plaintiff’s
filing
of
its
Some
summary
However, the time requested is
to
the
51
response
hours
to
requested
Defendant’s
for
summary
Plaintiff asserts that the time is reasonable
given Defendant’s determined opposition at every stage of the
litigation,
different
case.
but
than
she
any
does
other
not
explain
contested
what
makes
employment
this
case
discrimination
In fact, much of what Plaintiff points to as particularly
11
aggressive
defense
additional
attorney
Chapman
will
be
tactics
time
would
for
granted
a
107
not
require
response.
hours
significant
Accordingly,
for
motions
Mr.
practice,
approximately a fifty percent reduction.
d.
Settlement Conference and Trial Preparation
Plaintiff requests 419.25 hours for work on the settlement
conference
and
trial
preparation.
This
request
includes
70
hours for work in advance of the November 24, 2014 settlement
conference and 349.25 hours in preparation for trial.
Plaintiff
contends this is reasonable partly because Defendant “refused to
cooperate” in the preparation of a proposed joint pretrial order
and postponed the trial date.
reaction
to
counsel
the
revved
up
Plaintiff contends that “[i]n
Defendant’s
his
cavalier
trial
behavior,
preparation
to
anticipate
contingency, right up to the start of the trial.”
at 8).
Plaintiff’s
any
(ECF No. 53,
The trial was initially scheduled to begin on March 24,
2015, but, on March 18, 2015, Defendant moved for a continuance.
(ECF No. 30).
Trial ultimately began on May 12, 2015.
As of
March 18, 2015, expecting trial to be a week away, Mr. Chapman
had
spent
197.5
settlement
on
conference.
continuance,
preparing
hours
Mr.
for
preparation
After
Chapman
trial.
following
trial
spent
The
the
receiving
an
amount
motion
12
preparation
following
the
motion
additional
of
for
time
for
151.75
spent
continuance
the
on
is
a
hours
trial
not
reasonable
and
preparation
entries.
will
be
reduced
is
by
largely
duplicative
Accordingly,
fifty
percent,
of
earlier
trial
the
post-continuance
and
Mr.
Chapman
time
will
be
awarded 343.5 hours total for settlement and trial preparation.
e.
Trial
Mr. Chapman represents that he spent 39 hours working on
Plaintiff’s case during the three days of trial.
includes preparation for the following trial day.
This time
Mr. Chapman’s
request appears reasonable and will be credited.
f.
Fee Petition Preparation
Finally, Mr. Chapman requests 24 hours for researching and
preparing the fee petition.
unreasonable
amount
of
Defendant argues that this is an
time,
particularly
because
the
fee
petition is very similar to Mr. Chapman’s earlier fee petition
in Everhart.
persuasive.
appropriate
(ECF No. 52, at 8-9).
Defendant’s objections are
This court has noted that a reduction in hours is
when
“much
of
the
[fee
petition]
argument
similar to arguments made in any sort of fee petition.”
91 F.Supp.3d at 718.
was
Corral,
This is particularly true here because Mr.
Chapman filed a very similar fee petition that cited the same
legal precedent one year earlier.
Accordingly, Mr. Chapman’s
request will be reduced by half to 12 hours.
13
g.
Total Hours Reasonably Worked
In sum, Mr. Chapman is credited with 631 hours.
At his
revised hourly billing rate of $225, this leads to an initial
lodestar figure of $141,975.00.
3.
Additional Johnson Factors
Many of the Johnson factors were subsumed in the preceding
rate and hour analysis and it is not necessary to consider them
again.
89).
Corral, 91 F.Supp.3d at 718 (citing McAfee, 738 F.3d at
The other factors point toward a small downward adjustment
in the lodestar figure.
This
case.
case
was
a
relatively
straightforward
retaliation
Particularly for an attorney with over twenty years of
employment law experience, this case would not have presented
many unique challenges or precluded the attorney from taking
other
cases.
In
fact,
as
Defendant
notes,
Mr.
Chapman
was
involved in at least two other cases during the course of this
litigation.
(ECF No. 52, at 12).
reveals several more.
remaining
Johnson
The court’s CM/ECF system
Plaintiff offers no evidence that any
factor
counsels
against
a
reduction.
Accordingly, the additional Johnson factors counsel in favor of
a lodestar reduction of two (2) percent, bringing the figure to
$139,135.50.
14
B.
Unsuccessful Claims
“After
determining
that
the
hours
expended
and
the
attendant rates requested by a lawyer for a prevailing party are
reasonable, a court is obliged to subtract fees for hours spent
on
unsuccessful
claims
unrelated
to
the
successful
ones.”
McAfee, 738 F.3d at 91 (quotation marks and citation omitted).
A claim is unrelated if it is “distinct in all respects from his
successful claims.
. . .
Where a lawsuit consists of related
claims, a plaintiff who has won substantial relief should not
have
his
attorney’s
fee
reduced
simply
because
court did not adopt each contention raised.”
the
district
Hensley, 461 U.S.
at 440.
A claim is distinctly different if it is “based on
different
facts
and
legal
theories.”
Id.
at
434.
Here,
Plaintiff brought five counts, all of which arose out of the
same set of facts.
Defendant does not argue for a reduction due
to unsuccessful claims, and, as such, no reduction is warranted.
C.
Extent of Success
In
the
final
step
before
making
an
attorney’s fee award under [Section] 1988, a
district
court
must
“consider
the
relationship between the extent of success
and the amount of the fee award.” The court
will reduce the award if “the relief,
however
significant,
is
limited
in
comparison to the scope of the litigation as
a whole.” . . . What the court must ask is
whether “the plaintiff achieve[d] a level of
success that makes the hours reasonably
expended a satisfactory basis for making a
fee award.”
15
McAfee, 738 F.3d at 92 (quoting Hensley, 461 U.S. at 439-40,
434).
“When considering the extent of the relief obtained, we
must compare the amount of the damages sought to the amount
Mercer v. Duke Univ., 401 F.3d 199, 204 (4th Cir.
awarded.”
2005).
success
“If a [Section] 1983 plaintiff achieves only part of the
she
sought,
the
lodestar
amount
may
be
excessive.”
McAfee, 738 F.3d at 93 (citing Farrar v. Hobby, 506 U.S. 103,
114 (1992)).
Plaintiff argues that no reduction in fees is appropriate
because she obtained an “exceptional result.”
5-7).
Plaintiff contends that she was successful in her “sole
claim” of retaliation.
not
be
(ECF No. 49-1, at
measured
She also argues that her success should
against
her
complaint
because,
although
she
sought $1,000,000 in damages in the complaint, she did not ask
the jury for a specific amount at trial.
(ECF No. 53, at 5).
Finally, Plaintiff asserts that the her success is bolstered
because the judgment serves the public interest by “holding high
level[] police department officials accountable for retaliatory
practices.”
award,
(Id. at 8).
which
is
Defendant counters that the requested
approximately
judgment,
is
excessive,
recovered
compared
with
134
especially
the
relief
(ECF No. 52, at 7).
16
times
in
the
light
sought
in
amount
of
the
the
of
the
amount
complaint.
The facts in McAfee are very similar to those in here.
The
plaintiff in McAfee sought $500,000 in compensatory and punitive
damages, but was awarded only $2,943.60 in compensatory damages.
McAfee, 738 F.3d at 93.
The district court initially awarded
attorney’s fees of almost $350,000.
The Fourth Circuit reduced
the fee by two-thirds, noting that the requested fee would have
been
“more
than
100
times”
the
amount
of
the
verdict,
a
disparity that “may well be unprecedented in this Circuit.”
Id.
at
the
94.
The
plaintiff
in
McAfee
similarly
argued
that
success was bolstered because the litigation was “reasonable and
necessary
to
vindicate,
Virginia,
a
most
Amendment.”
Id.
for
important
McAfee
right
and
other
secured
by
citizens
the
of
Fourth
The Fourth Circuit rejected this argument,
reasoning that “[t]he jury’s forbearance of a punitive damages
award, however, reveals that deterrence and vindication may not
be so important here.”
Id.
Here, the jury found for Plaintiff
on only one of her two theories of retaliatory treatment, and
only awarded $2,000 in compensatory damages.
(ECF No. 43).
Accordingly, because of Plaintiff’s lack of relative litigation
success, and guided by the Fourth Circuit’s reasoning in McAfee,
the requested fee will be reduced by half.
III. Conclusion
For the foregoing reasons, the motion for attorney’s fees
filed by Plaintiff Jill Fordyce will be granted in part and
17
denied in part.
Judgment will be entered in favor of Plaintiff
and against Defendant in the total amount of $69,567.75 for
attorney’s fees.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
18
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