West v. Matthews International Corporation

Filing 131

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of plaintiff Gary Lee West for attorneys' fees is sustained. Defendant shall pay plaintiff's attorneys fees accrued and costs incurred as follows: a) Attorney George Suggs in the amount of $58,520.00; b) Attorney Christopher Chostner in the amount of $169,550.00; c) Costs in the amount of $3,173.82. Signed by Magistrate Judge David D. Noce on 9/6/11. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARY LEE WEST,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MATTHEWS INTERNATIONAL
CORPORATION,
Defendant.

No. 4:09 CV 1867 DDN

MEMORANDUM AND ORDER
REGARDING ATTORNEYS’ FEES
This action is before the court on the motion of plaintiff Gary Lee
West for attorneys’ fees.

(Doc. 123.)
I.

BACKGROUND

On October 1, 2009, plaintiff Gary Lee West commenced this action
in the Circuit Court of the City of St. Louis, alleging his previous
employer, defendant Matthews International Corporation, violated the
Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010, et seq., by
considering his age as a factor in terminating his employment during a
reduction in force.

(Doc. 1.)

On November 13, 2009, defendant removed

the action to this court pursuant to 28 U.S.C. §§ 1441, 1446, based on
diversity of citizenship subject matter jurisdiction, 28 U.S.C. § 1332.
On April 7, 2011, following a four-day trial, a jury found in favor
of plaintiff and awarded him $87,570.00 in compensatory damages.
jury awarded no punitive damages.

The

On June 15, 2011, the court entered

a judgment in favor of plaintiff of: (a) $87,570.00 in back pay;
(b) $103,363.50 in front pay; (c) unpaid severance to which plaintiff
would have been entitled; (d) prejudgment interest for the back pay,
front pay, and

severance pay; (e) post-judgment interest for the back

pay, front pay, and severance pay; and (f) costs.

(Docs. 121, 122.)

Plaintiff subsequently moved for attorneys’ fees. (Doc. 123.)

II.

DISCUSSION

Generally, a court should award costs and reasonable attorneys’ fees
to a prevailing plaintiff in an MHRA case “unless special circumstances
would render such an award unjust.”

McCrainey v. Kansas City Mo. Sch.

Dist., 337 S.W.3d 746, 756 (Mo. Ct. App. 2011) (citation omitted); see
Mo. Rev. Stat. § 213.111(2).
propriety

of

plaintiff’s

The parties do not dispute the general

recovery

of

attorneys’

fees.

The

court

concludes from the record that no circumstances are present that warrant
departure from the general rule.

Therefore, plaintiff is entitled to

recover reasonable attorneys’ fees.
The
attorneys’

starting
fees

is

point
the

for

determining

lodestar

the

amount,

amount

which

is

of

reasonable

calculated

by

multiplying the number of hours reasonably expended in the prevailing
party’s legal representation by a reasonable hourly rate.

Hensley v.

Eckerhart, 461 U.S. 424, 433-34 (1983); Hanig v. Lee, 415 F.3d 822, 825
(8th Cir. 2005).

The Supreme Court has recently described the lodestar

amount as a fee “that roughly approximates the fee that the prevailing
attorney would have received if he or she had been representing a paying
client who was billed by the hour in a comparable case.”
A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010).

Perdue v. Kenny

Further, a “reasonable”

fee is one “that is sufficient to induce a capable attorney to undertake
the representation of a meritorious civil rights case.”

Id.

And a

“reasonable” fee is not intended to be “a form of economic relief to
improve the financial lot of attorneys.” Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986).
A.

Hourly Rate
“As a general rule, a reasonable hourly rate is the prevailing

market rate, that is, the ordinary rate for similar work in the community
where the case has been litigated.” Moysis v. DTG Datanet, 278 F.3d 819,
828-29 (8th Cir. 2002) (citation omitted); accord Emery v. Hunt, 272 F.3d
1042, 1048 (8th Cir. 2001). “[W]hen fixing hourly rates, courts may draw
on their own experience and knowledge of prevailing market rates.”
Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005).

Reasonable

hourly rates should reflect the value of each respective attorney’s
- 2 -

experience and expertise in the relevant market, the metropolitan St.
Louis area.

Id.

The fee applicant bears the burden of producing

sufficient evidence “that the requested rates are in line with those
prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.”

Blum v. Stenson, 465 U.S.

886, 895 n.11 (1984).
Plaintiff’s counsel seek the following hourly fee rates for their
work in this case: Attorney George Suggs:

$400/hour, and Attorney

Christopher Chostner: $300/hour. Mr. Suggs has practiced law for thirty
years, and has been a partner at the law firm of Schuchat, Cook & Werner
since 2003.

(Doc. 124-2, Suggs aff. at ¶¶ 1-3.)

Mr. Chostner has

practiced law for six years, and is an associate at Schuchat, Cook &
Werner.

(Doc. 124-3, Chostner aff. at ¶¶ 1, 2.)

Plaintiff’s counsel

have filed affidavits in which they attest to their belief that the
proposed fees are reasonable, as well as an affidavit from local attorney
Mary Anne Sedey, in support of the requested hourly rates. (Docs. 124-2,
124-3, 124-4.)
Defendant argues that plaintiff’s attorneys requested hourly rates
are excessive. Defendant believes that hourly rates of $159 and $140 for
Mr. Suggs and Mr. Chostner, respectively, are appropriate.

Defendant

argues that the rates suggested by plaintiff are not based on agreed
hourly rates with plaintiff nor are they what plaintiff’s attorneys
customarily charge.

Rather, hourly rates of $159 and $140 reflect fee

requests made in other cases by Mr. Chostner and other attorneys of his
law firm.
Over the last four years, this court has found hourly rates ranging
from $195 to $450 reasonable in similar cases. See Marez v. Saint-Gobain
Containers, Inc., No. 4:09 CV 999 MLM, 2011 WL 1930706, at *12 (E.D. Mo.
May

18,

2011)

(hourly

rate

of

$350

not

questioned

by

defendant;

supporting factors were that counsel was a sole practitioner and the rate
requested was a contingent fee); Betton v. St. Louis Cnty., No. 4:05 CV
1455 JCH, 2010 WL 2025333, at *4 (E.D. Mo. May 19, 2010) (hourly rates
of $195, $260, $400, and $450; the latter two rates being supported by
affidavits of local attorneys); Murphy v. Fedex Nat’l LTL, Inc., No. 4:07
CV 1247 JCH, 2009 WL 1939957, at *3 (E.D. Mo. July 2, 2009) (hourly rate
- 3 -

of $400; contrary argument that EEOC experience was irrelevant was
rejected); Finan v. Good Earth Tools, Inc., No. 4:06 CV 878 CAS, 2008 WL
1805639, at *13 n.7 (E.D. Mo. Apr. 21, 2008) (hourly rate of $250
approved as a reasonable rate for an experienced partner practicing
employment law in St. Louis area); Katoch v. Mediq/PRN Life Support
Servs., Inc., No. 4:04 CV 938 CAS, 2007 WL 2434052, at *10 n.11 (E.D. Mo.
Aug. 22, 2007) (taking judicial notice that an hourly rate of $250 is a
reasonable rate for an experienced partner practicing employment law in
the

St.

Louis

area);

Day

v.

Robinwood

West

Community

Improvement

District, No. 4:08 CV 1888 ERW, Doc. 74 (E.D. Mo. Sept. 20, 2010) ($225
per hour rate approved); Phelps-Roper v. City of Manchester, No. 4:09 CV
1298 CDP, 2010 WL 4628202, at *2 (E.D. Mo. Nov. 8, 2010) ($225 per hour
rate approved for the same attorney in Day v. Robinwood).

In 2009, the

Missouri Court of Appeals affirmed an hourly rate of $400 for experienced
counsel, including attorney Mary Ann Sedey, in a case brought under the
MHRA. Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 531 (Mo. Ct.
App. 2009).
Plaintiff’s counsel do not dispute that they sought lower hourly
rates in other labor law cases.
higher

in

employment

They explain that their hourly rates are

discrimination

cases,

where

their

fees

are

contingent on the outcome, than in the ERISA employer welfare fund
contribution cases cited by defendant, where they charge hourly rates for
established clients who pay the hourly rates regardless of the outcome.
A reasonable hourly rate is based on “the ordinary rate for similar
work.” Moysis, 278 F.3d at 828-29. The court concludes that plaintiff’s
counsel should not be limited to their hourly rates charged in cases
cited by defendant.

The economic factors that drive attorney and law

firm billing rates in cases where regular clients have contracted to pay
for services rendered differ from those where unique clients’ ability to
pay for services rendered is affected by the outcome of the litigation
and where the attorney’s fee is to be paid by a non-consenting opposing
party. While the fee agreement between plaintiff and plaintiff’s counsel
and the rates customarily charged by plaintiff’s counsel in similar cases
are relevant factors, Blanchard, 489 U.S. at 93; Moysis, 278 F.3d at 828,

- 4 -

they

do

not

create

“an

automatic

ceiling”

to

a

reasonable

fee.1

Blanchard, 489 U.S. at 93; accord O’Brien v. B.L.C. Ins. Co., 768 S.W.2d
64, 71 (Mo. 1989) (en banc).
Based

on

plaintiff’s

counsel’s

experience,

expertise,

and

performance in this case, consistent with the hourly rates recently
approved by the court in sufficiently similar cases and consistent with
the quality and expertise of counsel in the St. Louis metropolitan area,
the court concludes that hourly rates of $350 for law firm partner
attorney

George

Suggs

and

$250

for

law

firm

associate

attorney

Christopher Chostner are reasonable in this case.2

B.

Number of Hours Reasonably Expended
The court has also examined the records submitted by plaintiff to

determine the number of hours reasonably expended in this case.

The

court should deduct hours that are not reasonably expended. Hensley, 461
U.S. at 434.

The fee applicant bears the burden of substantiating the

claimed number of hours expended.

Id. at 437.

Following defendant’s response to their motion for fees, plaintiff’s
counsel reduced their claimed hours to the following:
Mr. Suggs:

182.2 hours

Mr. Chostner:

678.5 hours

Defendant challenges these claimed hours, because they represent
work that duplicated effort, because certain entries are vague in their
description of the work performed, because some work appears to have been
performed in another case, and because some of the time was spent
performing clerical work.

1

To the extent defendant seeks to depose plaintiff’s attorneys and
their financial managers, these requests are denied. See Hensley, 461
U.S. at 437 (“A request for attorney’s fees should not result in a second
major litigation.”).
2

E.g., http://molawyersmedia.com/blog/2009/04/06/ billable-hours/
#City (last viewed on August 30, 2011).
- 5 -

1.

Duplication of effort

Defendant argues that many of plaintiff’s attorneys’ entries are
attempts to recover for duplicate time billed by both attorneys.

“A

court may reduce attorney hours, and consequently fees, for inefficiency
or duplication of services in cases where more than one attorney is
used.”

A.J. ex rel. L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995).

Of particular relevance are indications in the submitted records that the
effort of an attorney was not essential to the proper rendering of legal
services to or on behalf of the client.

Betton, 2010 WL 2025333, at *6.

Non-compensable duplication does not occur when both attorneys work
together to complete tasks and the record indicates that each attorney
added substantial value to the work product.

In the operation of a law

firm, good management requires the attorney who is a firm partner to
supervise the work of an attorney who is a firm associate on a case in
which both attorneys are engaged.

Such oversight is important to the

firm and could, but does not necessarily, add substantial value to the
associate’s work product.
In this regard, the court is cognizant of the importance in this
case of both Mr. Suggs and Mr. Chostner responding to defendant’s motion
for summary judgment and in preparing for trial.

The motion for summary

judgment was well-prepared and well-supported, and the time spent by
plaintiff’s counsel drafting and editing plaintiff’s motion responses was
appropriate.
However, the submitted records indicate that on the occasions listed
below on which law firm partner Suggs met with or reviewed the work of
associate attorney Chostner, the records do not establish that these
reviews by Mr. Suggs, while important to the overall operation of the
firm, were essential to the representation of plaintiff in this action:
Dec. 17, 2009--.5 hr.
Mar. 11, 2010--1.5 hrs.
Mar. 12, 2010--.5 hr.
May 6, 2010--.5 hr.
May 26, 2010--.5 hr.
Oct. 20, 2010--1.0 hr.
Nov. 11, 2010--3.5 hrs.
- 6 -

Nov. 12, 2010--.7 hr.
Nov. 17, 2010--1.2 hrs.
Nov. 19, 2010--2 hrs.
Dec. 14, 2010--1.5 hrs. and
May 9, 2011--1.0 hr.
This time will be deducted from Mr. Suggs’ time.
2.

Vague description of work--“Preparing for Trial”

Defendants argue that 18 of plaintiff’s attorneys’ entries are
excessive and too vague to permit compensation.

Many of these entries

state only, “Prepare for trial,” in their description.

(Doc. 124-1.)

While the court agrees that the description, “Prepare for trial,”
is somewhat vague, the entries are sufficient to permit compensation,
given the timing and relative circumstances surrounding these entries.
Bishop v. Pennington Cnty., No. CIV. 06-5066-KES, 2009 WL 1364887, at *4
(D.S.D. May 14, 2009) (entries of “prepare for trial” the week before and
during

trial

sufficient

to

permit

meaningful

review);

Rand-Whitney

Containerboard v. Town of Montville, Civ. No. 3:96CV413 (HBF), 2006 WL
2839236, at *17-18 (D. Conn. Sept. 5, 2006) (entries of “prepare for
trial” not overly vague).
3.

Work in another case

Defendant argues that entries on April 27, June 9, and September 13,
2010 indicate work performed regarding a related but separate case of
Eddy Clark v. Matthews International Corp.3

The court credits the

response of plaintiff’s counsel that a review of certain documents in
that case was important to counsel’s representation of plaintiff West.
Defendant’s argument in this respect is overruled.
4.

Clerical work

Defendant further challenges 7 entries, arguing that the amount of
compensation should be deducted because that time was spent performing
clerical work.

Counsel for a prevailing party are not entitled to

3

639 F.3d 391 (8th Cir. 2011).
- 7 -

compensation at their attorney rates for performing clerical or non-legal
work.

Weitz Co. v. MH Washington, 631 F.3d 510, 535 (8th Cir. 2011);

Sellers v. Peters, 624 F. Supp. 2d 1064, 1069 (E.D. Mo. 2008).
Because some of the tasks for which Mr. Chostner seeks compensation
were clerical in nature, the court will reduce Mr. Chostner’s fee award
by 1 hour.

See Sellers, 624 F. Supp. 2d at 1069.

The records also

indicate that on July 12, 2010, Mr. Suggs expended .3 of an hour making
arrangements for a deposition in Oakland.

This time will deducted from

his attorney time.
C.

Other factors
“The product of reasonable hours times a reasonable rate does not

end the inquiry.”

Quigley v. Winter, 598 F.3d 938, 959 (8th Cir. 2010)

(quotation omitted).

“There remain other considerations that may lead

the district court to adjust the fee upward or downward, including the
important factor of the ‘results obtained.’” Id. (citation omitted).
Here, plaintiff prevailed on his general claim of age discrimination
and the jury awarded him compensatory damages.

The jury, however, ruled

against plaintiff on his claim for punitive damages.

From the records,

the court discerns one small item of time specifically described as
having been expended on the issue of punitive damages, .3 hour in which
Mr. Suggs and Mr. Chostner met on September 7, 2010.

This time will be

deducted from their claims.
Although the amount of reasonable attorneys’ fees exceeds the amount
of the judgment, such a result is not uncommon in cases such as this,
where issues are aggressively litigated. All-Ways Logistics, Inc. v. USA
Truck, Inc., No. 3:06 cv 87 SWW, 2007 WL 4285410, at *12 (E.D. Ark. Dec.
4, 2007). No other factors are present that would require departure from
the lodestar amount in this case.
D.

Costs
Plaintiff seeks $3,173.82 in costs incurred preparing and trying

this case.

These costs consist of deposition fees, filing fees, witness

fees, transcript fees, and service fees.

(Doc. 124-1 at 14.)

“Expenses

that are reasonable, necessary, and customarily billed to clients in the
- 8 -

relevant economic market are properly compensable as a component of a fee
award.”

ACLU Neb. Found. v. City of Plattsmouth, Neb., 199 F. Supp. 2d

964, 968 (D. Neb. 2002).
Defendant does not challenge plaintiff’s request for $3,173.82 and
the court will award this amount as costs.
E.

Total Award
Based on the foregoing, fees and costs are appropriate as follows:

Attorney George Suggs:

$350/hour x 167.2 hours

Attorney Christopher Chosnter:
Costs:

=

$58,520.00

$250/hour x 677.5 hours = $169,550.00

$3,173.82
III.

CONCLUSION

For the reasons set forth above,
IT IS HEREBY ORDERED that the motion of plaintiff Gary Lee West for
attorneys’ fees is sustained.

Defendant shall pay plaintiff’s attorneys

fees accrued and costs incurred as follows:
a)

Attorney George Suggs in the amount of $58,520.00;

b)

Attorney Christopher Chostner in the amount of $169,550.00;

c)

Costs in the amount of $3,173.82.

/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on September 6, 2011.

- 9 -