Kirby v. Grand Traverse County Sheriff's Department

Filing 163

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

L IS A KIRBY, P l a in tif f , F ile No. 1:07-CV-566 v. H O N . ROBERT HOLMES BELL G R A N D TRAVERSE COUNTY SHERIFF'S DEPARTM ENT, D e f e n d a n t. / OPINION T h is matter comes before the Court on Plaintiff Lisa Kirby's application for an award o f attorney's fees and costs in the amount of $138,097.87. Defendant opposes Plaintiff's re q u e st for attorney fees, or in the alternative, requests that the court significantly reduce the am o u n t awarded. For the reasons that follow, Plaintiff's application will be granted in part a n d denied in part. Plaintiff's application for an award of attorney's fees will be granted, but in an amount less than she has requested. I. In her application, Plaintiff requests recovery of attorney's fees pursuant to 42 U.S.C. § 2000e-5(k).1 (Dkt. No. 155.) In her brief she requests recovery of attorney's fees pursuant

Title 42 U.S.C. § 2000e-5(k) provides: "In any action or proceeding under this su b c h a p ter the court, in its discretion, may allow the prevailing party . . . a reasonable a tto rn e y's fee (including expert fees) as part of the costs . . . ."

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to 42 U.S.C. § 1988.2 Notwithstanding these conflicting statutory references, the standard f o r awarding attorney's fees is essentially the same under both statutes. Hensley v.

E c k e r h a r t, 461 U.S. 424, 433 n.7 (1983); Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 3 4 9 n.7 (6th Cir. 2000). "The primary concern in an attorney fee case is that the fee awarded be reasonable, th a t is, one that is adequately compensatory to attract competent counsel yet which avoids p ro d u c in g a windfall for lawyers." Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (q u o tin g Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). In Hensley the Supreme Court d e te rm in e d that the most useful starting point for determining a reasonable fee is the " lo d e sta r" ­ the number of hours reasonably expended multiplied by a reasonable hourly rate. 4 6 1 U.S. at 433. It is Plaintiff's burden to provide "evidence supporting the hours worked a n d rates claimed." Id. Further, the Supreme Court directed the district courts to examine the c la im e d hours and exclude those hours that were not "reasonably expended." Id. at 434. P la in tif f has requested attorney's fees in the amount of $125,045.35, and costs in the a m o u n t of $13,052.52. In support of her request Plaintiff has submitted a summary of time s h e e ts and the affidavit of counsel. The time sheets reflect approximately 351.15 hours billed fo r time spent by counsel at the rate of $300.00 per hour and approximately 155.85 hours

Section 1988(b) provides that "In any action or proceeding to enforce a provision of . . . 42 U.S.C. §§ 1981-1983, 1985, 1986, . . . the court, in its discretion, may allow the p re v a ilin g party . . . a reasonable attorney's fee as part of the costs . . . ." 42 U.S.C. § 1988(b).

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b ille d for time spent by paralegals or law clerks at the rate of $125.00 per hour. A. Hours Reasonably Expended Defendant challenges the number of hours billed based on the fact that she was not a prevailing party on her discrimination claim, the excessive amount of time spent on certain w o rk , inaccuracies in the time sheets, and the limited success achieved. "Work on an unsuccessful claim cannot be considered to have been `expended in p u rs u it of the ultimate result achieved' where the plaintiff has presented distinctly different c la im s for relief based on different facts and legal theories." Imwalle v. Reliance Med. P r o d s ., Inc., 515 F.3d 531, 552 (6th Cir. 2008) (quoting Hensley, 461 U.S. at 434.) H o w e v e r, "where the plaintiff's claims for relief involve common facts or related legal th e o rie s, such that much of counsel's time will have been devoted generally to the litigation a s a whole, the court `should focus on the significance of the overall relief obtained by the p la in tif f in relation to the hours reasonably expended on the litigation.'" Id. (quoting H e n sle y , 461 U.S. at 435.) Discrimination and retaliation claims are often interrelated. See Imwalle, 515 F.3d a t 555 (finding no abuse of discretion in the district court's decision not to reduce the lodestar a m o u n t for lack of success where the discrimination and retaliation claims were based on c o m m o n facts and a significant overlap in the legal theories). However, in contrast to Im w a lle , Plaintiff's discrimination and retaliation claims were distinct and there was a m in im u m of overlap in either the proofs or the legal theories. Plaintiff's discrimination claim w a s based primarily on allegations of disparate treatment in work assignments and sexual 3

h a ra ss m e n t. Her retaliation claim, on the other hand, was based on discipline she received af ter she made complaints about sexual harassment and disparate treatment. Plaintiff's b illin g sheets do not distinguish between the work done on each separate claim. However, it is indisputable that many of the depositions and legal arguments pursued in conjunction w ith the disparate treatment claim were not relevant to Plaintiff's retaliation claim. M o r e o v e r , Plaintiff did not achieve any success on her claim for non-economic damages. T h e jury did not find that she suffered any compensable emotional distress or mental anguish. O n review it appears to this Court that a 40 percent reduction in the hours is appropriate b a se d upon Plaintiff's failure to prevail on her discrimination claim and her failure to prove n o n -e c o n o m ic damages. B. Reasonable Hourly Rate P la in tif f has requested an hourly rate of $300.00 for the work of her attorney and $ 1 2 5 .0 0 per hour for the work of paralegals and law clerks. The only information she has su p p lied in support of this request is an affidavit from counsel indicating that counsel's h o u rly billing rate is $300.00 per hour, and that he bills the work performed by paralegals and law clerks at the rate of $125.00 per hour. (Abood Aff. ¶¶ 5, 14.) Defendant contends that the rates are excessive. The Court agrees. The most recent E c o n o m ic s of Law Practice survey issued by the State Bar of Michigan lists the median h o u rly litigation billing rates based on a variety of factors, including firm size, years in p ra c tic e , and field of practice. Plaintiff's counsel is a member of the Abood law firm, which

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h a s three attorneys listed on its website.3 The survey reflects that the median hourly litigation b illin g rate charged by Michigan attorneys in firms of three to six practitioners is $195 per h o u r. Plaintiff's counsel has been in practice for twenty years.4 The survey reflects that the m ed ian litigation rate charged by attorneys with 20-29 years in practice is $200 per hour. T h e median rate charged by all Michigan litigation attorneys is $200 per hour. The p e rf o rm a n c e of Plaintiff's counsel in this case does not warrant a fee in excess of the median ra te . The survey reflects that the median hourly billing rate for paralegals is $75. Plaintiff h a s not suggested any basis for finding that a reasonable fee for the work of paralegals and la w clerks in this case should be any greater than the median rate. The Court will accordingly reduce the attorney's hour rate to $200 per hour and the h o u rly rate for the law clerks and paralegals to $75 per hour. C. Costs P la in tif f has requested costs in the amount of $13,052.52. The Court concludes that b e c a u se many of the costs are associated with Plaintiff's unsuccessful discrimination claim a n d her unsuccessful pursuit of non-economic damages, they should similarly be reduced by 4 0 percent.

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See www.aboodlaw.com.

T h e State Bar of Michigan website indicates that F. Joseph Abood received his M ic h ig a n license on June 8, 1989. 5

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D . Upward Adjustment P la in tif f has requested an upward adjustment from the lodestar amount in light of the n e e d to attract competent counsel for employment discrimination litigation in this c o m m u n ity. "Where the party seeking the attorney fees has established that the number of hours a n d the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to w h ic h counsel is entitled." Imwalle, 515 F.3d at 552 (citing Pennsylvania v. Del. Valley C itize n s' Council for Clean Air, 478 U.S. 546, 564 (1986)). Upward adjustments of the lo d e sta r figure are proper "only in certain `rare' and `exceptional' cases, supported by both `s p e c if ic evidence' on the record and detailed findings by the lower courts." Del. Valley, 478 U .S . at 565. Plaintiff has offered no specific evidence in support of her request for an upward a d ju s tm e n t. She merely suggests that an enhancement may be appropriate to attract

c o m p e te n t counsel by providing an inducement for the risk undertaken in representing e m p lo ym e n t discrimination plaintiffs. The Court finds nothing exceptional or rare about this c a s e that would warrant an upward adjustment. E. Case Evaluation Sanctions P la in tif f also seeks attorney's fees pursuant to the Michigan Court Rules governing lia b i lity for costs following a rejection of a case evaluation. The parties submitted their case to standard track case evaluation. (Dkt. No. 60, Notice of Case Eval. Hrg.) Defendant does n o t dispute that its rejection of the case evaluation award and the jury verdict in this case 6

e n title s Plaintiff to costs, including a reasonable attorney's fee, under Rule 2.403(O)(6)(a) o f the Michigan Court Rules. Michigan courts consider essentially the same factors as the f e d e ra l courts in determining a reasonable attorney's fee. Smith v. Khouri, 751 N.W.2d 472, 4 7 8 -7 9 (2008). Plaintiff acknowledges that she is not entitled to double recovery of a tto rn e y's fees. Id. at 477 n.10 ("[D]ouble recovery of attorney fees under two different a u t h o r itie s is not appropriate, even if the authorities advance different purposes."). Because P la in tif f has not suggested that an award under the Michigan Court Rules would be greater th a n an award under the federal statute, Plaintiff's eligibility for an award under the M ic h ig a n Court Rules does not alter the Court's analysis. II. In summary, Plaintiff's request for attorney's fees will be granted in part and denied in part. Plaintiff is awarded attorney's fees, but in an amount less than she has requested. T h e Court will reduce the number of hours by 40 percent, reduce the hourly rate for her a tto rn e y to $200 per hour, reduce the hourly rate for law clerks and paralegals to $75 per h o u r, and reduce the costs by 40 percent, for a total award of $57,103.51, calculated as f o l lo w s : A tto rn e y 3 5 1 .1 5 hrs x 60% x $200/hr Paralegal/Law Clerk 155.85 hrs x 60% x $75/hr C o s ts $13,052.52 x 60% T o ta l A n order consistent with this opinion will be entered. = = = $ 4 2 ,1 3 8 .0 0 $7013.25 $7831.51 $56,982.76

Dated: September 30, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 7