Ellicott v. American Capital Energy Inc. et al

Filing 224

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Motion for Attorneys' Fees and Costs. (Zaleski, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
STEPHEN ELLICOTT,
)
)
Plaintiff,
)
)
v.
)
)
AMERICAN CAPITAL ENERGY, INC.,
)
THOMAS HUNTON, and
)
ARTHUR HENNESSEY,
)
)
Defendants.
)
)
__________________________________________)

Civil Action No.
14-12152-FDS

MEMORANDUM AND ORDER ON PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
SAYLOR, J.
Plaintiff Stephen Ellicott brought this action against his former employer, American
Capital Energy, Inc. (“ACE”), and its two principals, Thomas Hunton and Arthur Hennessey,
seeking compensation for unpaid wages. The complaint brought two counts under state law,
alleging a violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and breach
of contract. On February 6, 2017, following a jury trial, the Court issued a judgment in favor of
plaintiff on both counts. Plaintiff has moved for attorneys’ fees and costs pursuant to Mass. Gen.
Laws ch. 149, § 150. For the following reasons, plaintiff’s motion will be granted in part and
denied in part.
I.

Background
ACE is a solar-energy company that sells large-scale solar energy projects to commercial

clients. Ellicott is a former sales employee at ACE. Thomas Hunton and Arthur Hennessey are

principals of ACE.
On April 2, 2014, Ellicott brought this action seeking compensation for unpaid
commissions. The complaint alleged two counts under Massachusetts state law, claiming a
violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and breach of
contract.
When Ellicott brought the complaint, he was represented by attorneys Mark Pogue and
Nathanael Nichols of the law firm Locke Lord LLP. Those attorneys withdrew from the case on
April 10, 2015. They were replaced by two partners at the law firm Kenney & Sams, P.C.,
Christopher Kenney and Anthony DeProspo.
In the months following that change of counsel, Ellicott litigated this action vigorously.
He brought a motion to amend the complaint, a motion for summary judgment, a motion for a
real-estate attachment and a reach-and-apply injunction, a motion for injunctive relief, a motion
for a preliminary injunction, and multiple motions in limine, as well as opposed multiple motions
by defendants.
In January 2017, the case was tried to a jury. The jury returned a verdict in Ellicott’s
favor, finding defendants liable under both counts. The jury further found that Ellicott was owed
$958,830 in lost wages. Those damages were trebled pursuant to Mass. Gen. Laws ch. 149, §
150 for a total award of $2,876,490 under the Massachusetts Wage Act.
Plaintiff has moved for an award of reasonable attorneys’ fees and costs pursuant to
Mass. Gen. Laws ch. 149, § 150.
II.

Analysis
A.

Reasonable Attorneys’ Fees

Plaintiff requests attorneys’ fees for 1,317.4 hours of work at a total charge of $487,150.
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That time was billed by three attorneys at Kenney & Sams, P.C., two of whom are partners
(Kenney and DeProspo) and one of whom is an associate (Jaimeson E. Porter).
1.

Standard for Calculating Reasonable Attorneys’ Fees

A plaintiff who prevails on a Wage Act claim is entitled to a mandatory award of
“reasonable attorneys' fees.” Mass. Gen. Laws ch. 149, § 150; see also Lipsitt v. Plaud, 466
Mass. 240, 250 (2013). Both the First Circuit and Massachusetts courts generally follow the socalled “lodestar” method for evaluating the reasonableness of a fee application. See Tennessee
Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994); Fontaine v. Ebtec
Corp., 415 Mass. 309, 325 (1993).1
The lodestar method involves “multiplying the number of hours productively spent by a
reasonable hourly rate to calculate a base figure.” Torres-Rivera v. O'Neill-Cancel, 524 F.3d
331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In determining
that base figure, the first step is to calculate the number of hours reasonably expended by the
attorneys for the prevailing party, excluding those hours that are “excessive, redundant, or
otherwise unnecessary.” Hensley, 461 U.S. at 434. At this step, “the court has a right—indeed, a
duty—to see whether counsel substantially exceeded the bounds of reasonable effort.” United
States v. Metro. Dist. Comm'n, 847 F.2d 12, 17 (1st Cir. 1988) (quotation omitted). The fee
applicant bears the burden of proving that the number of hours expended is reasonable. See
Torres-Rivera, 524 F.3d. at 340.
The second step is to determine a reasonable hourly rate as benchmarked to the

1
A federal court sitting in diversity must apply state law in calculating reasonable attorneys’ fees. See
Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st Cir. 1988). In light of the similar approaches
used by Massachusetts courts and courts in the First Circuit, this Court will consider both federal and Massachusetts
state precedent in evaluating the reasonableness of the request for fees. See Joyce v. Town of Dennis, 720 F.3d 12,
26 (1st Cir. 2013) (citing Fontaine v. Ebtec Corp., 415 Mass. at 325).

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“prevailing rates in the community” for lawyers of like “qualifications, experience, and
specialized competence.” See Gay Officers League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir.
2001). In determining a reasonable hourly rate, a court must consider “the type of work
performed, who performed it, the expertise that it required, and when it was undertaken.”
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 951 (1st Cir. 1984). The applicant bears the burden
to produce evidence establishing the prevailing rates in the community. See Blum v. Stenson,
465 U.S. 886, 896 n.11 (1984).
The court may then adjust the lodestar amount upward or downward based on a number
of factors. See Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir. 2011). Those factors include
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the
case; (11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.
Diaz v. Jiten Hotel Mgmt., 741 F.3d 170, 177 n.7 (1st Cir. 2013) (quoting Hensley, 461 U.S. at
430 n.3).
2.

Time Spent

Plaintiff requests compensation for 1,317.4 hours of work. The vast majority of that time
was billed by the partners, with DeProspo billing 927.7 hours, Kenney billing 336.1 hours, and
Porter billing 53.6 hours.
As an initial matter, the Court is somewhat hindered in evaluating the reasonableness of
the time spent on each task because the attorneys, particularly in earlier entries, used block
billing to record their time. For example, a single entry from the attorneys’ timesheet on June 4,
2015, reflects that DeProspo spent 7.8 hours of time, at a total charge of $2,847, preparing for
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and meeting with plaintiff’s expert, preparing for a deposition, producing supplemental
documents, reviewing the expert’s engagement letter, and reviewing and revising a joint
statement concerning a related action. (Kenney Aff. Tab A). Such a practice makes it difficult
or impossible to review the reasonableness of specific tasks, and warrants a reduction in the
number of compensable hours. See Torres-Rivera, 524 F.3d at 340 (finding no error in district
court’s application of a 15% global reduction of fee award as a sanction for block billing). In
light of the attorneys’ use of block billing, the Court will reduce the number of hours for which
compensation is requested by 5%. A greater reduction is not warranted because this practice was
not pervasive in the attorneys’ later entries.
The amount should also be reduced for time spent on administrative tasks and travel.
Courts often apply differential rates to fees for “‘core’ tasks like ‘legal research, writing of legal
documents, court appearances, negotiations with opposing counsel, monitoring, and
implementation of court orders’” and “‘non-core’ tasks, which are ‘less demanding,’ such as
‘letter writing and telephone conversations.’” Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir.
2015) (quoting Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st Cir. 1993)). Travel time is
considered to be non-core work that is routinely discounted at half the rate of core legal work.
See, e.g., Chestnut v. Coyle, 2004 WL 438788, at *3 (D. Mass. Mar. 9, 2004) (collecting cases
reducing fee award for travel time); Norkunas v. HPT Cambridge, LLC, 969 F. Supp. 2d 184,
196 (D. Mass. 2013) (“Travel time is typically compensated to account for only half of the time
actually spent traveling.”). Here, the attorneys did not distinguish between core and non-core
work in billing time, instead charging their full rate as partners for travel and all other tasks
performed. Many of the tasks for which plaintiff requests nearly $400 per hour in fees could
have been performed by a less-experienced associate or paralegal at a substantially reduced rate.
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For example, on January 31, 2016, DeProspo billed for 2.2 hours at a total cost of $803 to
assemble exhibits and prepare a deposition transcript for submission to the Court. In fairness,
such “clerical or secretarial tasks ought not to be billed at lawyers’ rates, even if a lawyer
performs them.” Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992). Again, the attorneys
failed to identify precisely how much time was spent on travel and clerical work, as those tasks
are intermingled with core-work tasks in entries. Rather than use different rates to compensate
the attorneys for core and non-core work, the court will apply a global reduction of 20%. See
Matalon v. Hynnes, 806 F.3d 627, 640 (1st Cir. 2015).
In the context of a fee-shifting statute, courts are directed to “zealously guard against any
propensity to over-staff litigation.” Lipsett v. Blanco, 975 F.2d at 939 (quoting United Nuclear
Corp. v. Cannon, 564 F. Supp. 581, 590 (D.R.I. 1983)). Some entries in the attorneys’
timesheets appear to charge for duplicative or unnecessary tasks. For example, on January 12,
2017, DeProspo billed for 8.9 hours of time for tasks that included, among other things, travel to
Boston to attend the pretrial conference, time spent at the conference, and meeting with Kenney
concerning trial preparation. Likewise, Kenney billed for 5.7 hours to attend the pretrial
conference and to meet with DeProspo concerning trial witness outlines. Similarly, on June 15,
2016, DeProspo charged for 7.9 hours to prepare for and take a Rule 30(b)(6) deposition, among
other things. The same day, Kenney also charged for 3.8 hours to prepare for and attend a
portion of the 30(b)(6) deposition. It is not clear why both attorneys needed to attend the
relevant hearings and depositions, or why the full time needed to be charged. The case was not
unusually complex, and indeed defendants were represented by a single attorney for most of the
litigation, including the trial. Accordingly, the Court will apply an additional 5% reduction in
approving the number of hours reasonably expended.
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Accordingly, the Court will reduce the number of hours for which compensation was
requested by 30%.
3.

Hourly Rates

Plaintiff requests hourly rates of $395 for Kenney’s time, $365 for DeProspo’s time, and
$285 for Porter’s time.
The reasonableness of an hourly rate cannot be presumed; it is the applicant’s burden to
demonstrate that a requested rate is reasonable. See Blum, 465 U.S. at 896 n.11. Plaintiff did not
provide any documentation to support a rate of $285 per hour for Porter’s time. The Court has
no information about that attorney, for whom 53.6 hours in compensation is requested for a total
charge of $15,276. An affidavit submitted by Kenney merely describes her as “lessexperienced.” Kenney Aff. ¶ 23. In the absence of any documentation justifying the rate sought,
the Court will reduce Porter’s rate from $285 per hour to $125 per hour.
Plaintiff submitted an affidavit by Kenney stating that attorneys Kenney and DeProspo
are experienced attorneys with good reputations in the community. The Court has no reason to
believe otherwise—the attorneys litigated this case capably and secured a favorable result. As
evidence that the rates charged are reasonable, Kenney points to a recent Suffolk County
Superior Court case in which the court approved a rate of $395 for his work. The affidavit also
states that “based upon my 26 years of active litigation experience, I believe our rates and
charges to Mr. Ellicott are fair and reasonable.” Kenney Aff. ¶ 23. That broad statement, in
conjunction with the state court case involving different issues in a different forum, are the only
evidence provided to support the reasonableness of the fee. Based on that limited evidence,
plaintiff has not carried his burden to show that the rates charged are reasonable. See Blum, 465
U.S. at 896 n.11 (1984) (“the burden is on the fee applicant to produce satisfactory evidence—in
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addition to the attorney's own affidavits—that the requested rates are in line with those
prevailing in the community”); Bordanaro v. McLeod, 871 F.2d 1151, 1168 (1st Cir. 1989)
(finding that unsupported statements made in fee applicants’ attorneys’ affidavits are insufficient
to support a claim for prevailing market rates); see also E.E.O.C. v. AutoZone, Inc., 934 F. Supp.
2d 342, 358 (D. Mass. 2013) (finding that “appealing to awards by other judges is moderately
helpful, at best” to support a claim for prevailing market rates). Accordingly, the Court will
reduce the requested rates somewhat to $350 per hour for Kenney’s time and $320 per hour for
DeProspo’s time.
4.

Adjustment

This should not have been a difficult case. The facts of the case presented a relatively
straightforward contract and wage dispute concerning the payment of commissions on eight
projects. Based on those facts, it is not obvious why this case required more than one thousand
hours of work by two partners with collectively nearly five decades of experience. In addition,
plaintiff was originally represented by another law firm. Predecessor counsel filed the complaint
in this action and represented plaintiff for a full year, almost to the close of fact discovery, before
being replaced by current counsel in April 2015. Under those circumstances alone, it would be
reasonable to further reduce fee award. However, as plaintiff points out, this case was made
substantially more difficult by defendants’ approach to the litigation. Defendants’ theory of their
defense changed multiple times, including on the eve of trial. Plaintiffs zealously litigated the
case in response to what was often a moving target, and achieved a favorable jury verdict. In
light of all of the facts, the Court will decline to adjust the lodestar calculation any further
downward. See Lipsett v. Blanco, 975 F.2d at 939 (considering the “bitter” resistance mounted
by opposing counsel in declining to reduce applicant’s request for attorneys’ fees where the case
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was arguably overstaffed).
5.

Conclusion

In summary, the Court finds that a reasonable award of attorneys’ fees under the
circumstances is as follows: DeProspo will be compensated for 649.4 hours of work at a rate of
$320 per hour; Kenney will be compensated for 235.3 hours of work at a rate of $350 per hour;
and Porter will be compensated for 37.5 hours of work at a rate of $125 per hour. The total
award of reasonable attorneys’ fees is thus $294,839.30.2

Attorney DeProspo
Attorney Kenney
Attorney Porter
Total
B.

Fees
Compensation Requested
927.7 hours at $365/hour =
$338,610.50
336.1 hours at $395/hour =
$132,759.50
53.6 hours at $285/hour =
$15,276
$486,646

Compensation Approved
649.4 hours at $320/hour =
$207,804.80
235.3 hours at $350/hour =
$82,344.50
37.5 hours at $125/hour =
$4,690
$294,839.30

Costs

Under the Wage Act, a prevailing plaintiff is entitled to a mandatory award of “the costs
of the litigation.” Mass. Gen. Laws ch. 149, § 150; see also Lipsitt v. Plaud, 466 Mass. at 250.
Plaintiff has requested $83,639.64 in litigation expenses. The majority of those costs—
$61,165—were expended to retain an expert witness to opine on the commission calculation.
Plaintiff did not provide any independent documentation to support the reasonableness of that
expert fee, such as invoices detailing how the expert’s time was spent or evidence of comparable
expert fees. The amount also seems extraordinarily high in light of the matters at issue. In light

2
There is a mathematical error in the timesheet that plaintiff submitted to the Court. Kenney Aff. Tab A.
Under the “Legal Services Summary” section of the timesheet, the row describing DeProspo’s time reflects an
hourly rate of $365, billing for 927.7 hours for a total charge of $339,114.50. However, $365 x 927.7 =
$338,610.50, not the slightly higher amount reflected in the timesheet’s summary section. Plaintiff apparently relied
on that erroneous calculation in requesting $487,150 in attorney’s fees, rather than the slightly lower amount
calculated by the Court in the table below.

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of the lack of documentation supporting the fee, the Court will reduce the reimbursement sought
for the expert by half.
In addition, plaintiff seeks $13,112.71 in reimbursement for the costs of making
photocopies. Plaintiff seeks between $.15 and $.20 per page, for tens of thousands of pages of
photocopies. Plaintiff has not provided any documentation to support that rate, or indeed to
support why the photocopies were even necessary. Again, in light of the lack of supporting
documentation, the Court will reduce the reimbursement sought for photocopies by half.
Plaintiff’s request for expenses related to travel, deposition transcripts, and other
expenses is otherwise reasonable.
Therefore, the Court finds that a reasonable award of costs under the circumstances is
$46,500.79.

Category
Expert fee
Photocopies
Deposition transcripts
Federal Express fees and postage
Travel and other expenses
Total
III.

Costs
Cost Requested
$61,165
$13,112.71
$6,017.35
$303.60
$3,040.98
$83,639.64

Cost Approved
$30,582.50
$6,556.36
$6,017.35
$303.60
$3,040.98
$46,500.79

Conclusion
For the foregoing reasons, plaintiff’s motion for attorneys’ fees, costs, and other expenses

is GRANTED in the amount of $294,839.30 in fees and $46,500.79 in costs, and is otherwise
DENIED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: April 3, 2017
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