Starks v. Harris Company, Inc. et al

Filing 121

ORDER - IT IS HEREBY ORDERED that the motion of plaintiff Cindy R. Starks for attorneys' fees and expenses (Doc. 112 ) is sustained in part and denied in part. Defendants shall pay plaintiff $33,920.00 as attorneys' fees and $ 579.77 in expenses. IT IS FURTHER ORDERED that the motion of defendants Harris Co. Inc., and Prince A. Harris for attorney fees (Doc. 113 ) is sustained in part and denied in part. Plaintiff shall pay defendants $1,500.00 as an attorney's fee. IT IS FURTHER ORDERED that defendants motion for leave to file a sealed document is sustained. (Doc. 114 .) Signed by Magistrate Judge David D. Noce on 3/26/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CINDY R. STARKS,
Plaintiff,
v.
HARRIS CO. INC., and
PRINCE A. HARRIS,
Defendants.

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No. 4:12 CV 473 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiff Cindy R. Starks for attorneys'
fees and expenses (Doc. 112) and the motion of defendants Harris Co. Inc., and Prince A. Harris
for attorney fees (Doc. 113).

I. BACKGROUND
Plaintiff Cindy R. Starks commenced this action pro se against defendants Harris
Company, Inc., her former employer, and Prince A. Harris, her former supervisor. (Doc. 1.) On
August 9, 2012, with the assistance of appointed counsel, plaintiff filed her second amended
complaint. (Docs. 9, 16.) In her second amended complaint, plaintiff alleged claims against
Harris Company under (1) Title VII of the Civil Rights Act of 1964 for (a) race discrimination,
(b) sex discrimination, (c) sexual harassment, and (d) retaliation; (2) the Equal Pay Act; and (3)
the Fair Labor Standards Act. She also alleged claims against both defendants under (4) the
Electronic Communications Privacy Act; (5) the Missouri Wiretap Act; and (6) Missouri
common law for (a) unjust enrichment, (b) quantum meruit, and (c) intrusion into seclusion.
(Doc. 16.)
On December 20, 2012, the court dismissed the Title VII sexual harassment claim on
plaintiff’s motion and the Title VII sex discrimination claim on defendants’ motion for judgment
on the pleadings. (Doc. 49.) On December 2, 2013, plaintiff dismissed the Title VII race
discrimination claim. (Doc. 59.) On January 15, 2014, plaintiff dismissed the claims under the

Electronic Communications Privacy Act and the Missouri Wiretap Act and the claims of
quantum meruit, unjust enrichment, and intrusion into seclusion. (Doc. 89.)
Thus, on the eve of trial, plaintiff’s claims included Title VII retaliation and violations of
the Fair Labor Standards Act and the Equal Pay Act.
On January 21, 2014, the jury trial began. (Doc. 96.) After plaintiff’s presentation of
evidence, defendant moved for judgment as a matter of law on the Equal Pay Act claim, which
the court sustained. (Doc. 98.) On January 27, 2014, the jury returned a verdict, awarding
plaintiff $2,205.00 for the Fair Labor Standards Act claim but found in favor of defendant on the
Title VII retaliation claim. (Doc. 107.) The court awarded an additional $2,205.00 for failure to
demonstrate good faith under 29 U.S.C. § 216(b) and issued judgment against defendant Harris
Company, accordingly. (Doc. 109-10.)
Plaintiff requests attorneys' fees in the amount of $38,590.00 and expenses in the amount
of $579.77 under 29 U.S.C. § 216(b) of the Fair Labor Standards Act. Defendant objects to the
amount of plaintiff’s attorney fee request and further moves for attorney fees under 42 U.S.C. §
2000e-5(k) under Title VII, alleging that plaintiff’s claims under Title VII were frivolous,
unreasonable, and groundless. (Docs. 112, 113, 118.)

Plaintiff’s Attorney Fees and Expenses
Plaintiff requests attorney fees in the amount of $38,590.00 and expenses in the amount
of $579.77. Regarding the violations of the Fair Labor Standards Act states, “The court in [a
Fair Labor Standards Act] action shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.”
9 U.S.C. § 216(b).
“The most useful starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This amount is referred to as the lodestar. See
e.g. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010). “[The court does] not
automatically accept the lawyer's rate as reasonable; we look also to the ordinary fee for similar
work in the community.” Shakopee Mdewakanton Sioux Cmty. v. City of Prior Lake, Minn.,
771 F.2d 1153, 1160 (8th Cir. 1985). The court should also consider: “(1) the time and labor

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required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal
services properly, (4) the preclusion of other employment 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.” Zoll v.
E. Allamakee Cmty. Sch. Dist., 588 F.2d 246, 252 n.11 (8th Cir. 1978). “The most important
factor in determining what is a reasonable fee is the magnitude of the plaintiff's success in the
case as a whole.” Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 716 (8th Cir. 1997). “If the
plaintiff's success is limited, he is entitled only to an amount of fees that is reasonable in relation
to the results obtained.” Id.
Plaintiff seeks an hourly rate of $250.00 for her lead attorney Jessica Scales. Defendants
argue that a rate of $250.00 per hour for attorney Scales is unreasonable. They suggest an hourly
rate of $175.00 to account for her limited experience. Defendants argue that the average hourly
rate for an attorney in St. Louis is $247.00 and that $250.00 is reasonable hourly rate for an
experienced employment law partner in the St. Louis area. Hourly rates as high as $450.00 and
$400.00 have also been approved for experienced employment law partners. West v. Matthews
Int'l Corp., 2011 WL 3904100, *4 (E.D. Mo. 2011). While Ms. Scales does not fall into that
category, affidavits from local employment law attorneys indicate that Ms. Scales’ requested rate
is reasonable, and the rate is not significantly higher than the lowest rates of similarly reputable
firms in the area. (Docs. 112-1, 112-2, 112-3, 112-4, 118-2.) Additionally, Ms. Scales’ interest
in employment law and relevant legal experience predate her employment as a licensed attorney.
(Doc. 112 at 2.) Significantly, Ms. Scales has provided counsel on a contingency basis. Based
on plaintiff's counsel’s experience, expertise, and performance in this case and considering the
relevant legal market in the St. Louis metropolitan area, the court concludes that an hourly rate of
$250 is reasonable for Ms. Scales.
Plaintiff seeks an hourly rate of $350.00 per hour for attorney Benjamin Westhoff.
Defendants argue that the court should deny the entire request for attorney's fees for attorney
Westhoff, contending that the tasks performed by him were duplicative of those performed by
Ms. Scales. “[A]ny fees must be ‘reasonably expended,’ so that services that were redundant,

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inefficient, or simply unnecessary are not compensable.” Jenkins, 127 F.3d at 716. The records
submitted by Ms. Scales and Mr. Westhoff indicate that they worked in tandem on the case for
the trial. (Docs. 112-8, 112-9.) However, the records do not lead to the conclusion that their
work was unnecessarily duplicative.
The work of Mr. Westhoff added substantial value to the work performed by Ms. Scales.
West, 2011 WL 3904100, *4. Mr. Westhoff actively contributed to trial preparation and strategy
throughout the trial, and he actively presented evidence during the trial. Courts have awarded
attorney fees to co-counsel in similar cases, especially in cases that proceeded to jury trials. See
e.g., Baker v. John Morrell & Co., 263 F. Supp. 2d 1161, 1199 (N.D. Iowa 2003) aff'd, 382 F.3d
816 (8th Cir. 2004); West, 2011 WL 3904100, *4. After carefully considering the record, the
court finds that $300.00 per hour is a reasonable rate for Mr. Westhoff.
Plaintiff also seeks fee rates for the following attorneys: firm partner Mary Anne Sedey
$400.00 per hour; firm partner Donna Harper $400.00 per hour; and firm partner John Lynn
$350.00 per hour. Good management of a law firm reasonably requires supervision by a firm
superior over the work of an associate. See West, 2011 WL 3904100, *2-4. Defendants do not
contest these rates for these attorneys, or the $100.00 per hour rate for paralegal Marsha Roth,
and the court finds that they are reasonable.
The court also assesses whether the amounts of hours expended by counsel were
reasonable in the calculus of the lodestar amount. The hours expended by attorneys Scales and
Westhoff and by paralegal Roth are unchallenged, except by the argument based upon the
limited relief awarded to plaintiff. Anticipating that argument, plaintiff reduces the attorneys'
and the paralegal's claimed hours by two-thirds to reflect her limited recovery.
Further, the court further reduces the hours claimed by supervisory attorneys Sedey,
Harper, and Lynn.

The reasonable supervision of subordinate attorneys ought not include

duplicative effort. The efforts of three partners in supervising Ms. Scales and Mr. Westhoff are
duplicative. In the circumstances of this case, limiting supervision to one partner is appropriate,
especially when one of the attorneys being supervised is experienced, as is Mr. Westhoff.
Therefore, the court reduces the hours of supervisory attorneys Sedey, Harper, and Lynn each by
two-thirds.

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Applying these considerations, the court finds and concludes that the following hourly
rates and hours of effort are reasonable compensation for plaintiff's legal representation:
a.

for attorney Scales:

97.7 hrs at $250.00 per hour =

$24,425.00

b.

for attorney Westhoff:

22.9 hrs at $300.00 per hour =

$ 6,870.00

c.

for attorney Sedey:

1.2 hrs at $400.00 per hour =

$ 480.00

d.

for attorney Harper

1.7 hrs at $400.00 per hour =

$ 680.00

e.

for attorney Lynn

1.7 hrs at $350.00 per hour =

$ 595.00

f.

for paralegal Roth

8.7 hrs at $100.00 per hour =

$

TOTAL:

870.00

$33,920.00

Plaintiff also requests one-third of the documented expenses in the amount of $1,739.30
for a total of $579.77. This is a reasonable award in this case.

Defendants’ Attorney Fees
Defendants request $18,196.75 in attorney fees, contending that they prevailed on the
Title VII claims and further that such claims were frivolous, unreasonable, or groundless. “In
any action or proceeding under [Title VII] the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee (including expert fees) as part of the costs.” 42 U.S.C. §
2000e-5(k). However, “a plaintiff should not be assessed his opponent's attorney's fees unless a
court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so.”

Christiansburg Garment Co. v. Equal

Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978). To do otherwise would undercut
the legislative goal of the vigorous enforcement the civil rights afforded by Title VII. Id.
As stated above, plaintiff's second amended complaint alleged four specifications of
claims under Title VII of the Civil Rights Act of 1964, and claims under the Equal Pay Act, the
Fair Labor Standards Act, the Electronic Communications Privacy Act, the Missouri Wiretap
Act, and Missouri common law for unjust enrichment, quantum meruit, and intrusion into
seclusion.
The court dismissed the Title VII sexual harassment claim on plaintiff’s motion and the
Title VII sex discrimination claim on defendants’ motion. Later, plaintiff herself dismissed the

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Title VII race discrimination claim and the claims under the Electronic Communications Privacy
Act, the Missouri Wiretap Act, and the claims of quantum meruit, unjust enrichment, and
intrusion into seclusion. Thus, the trial began with claims under Title VII for retaliation, the Fair
Labor Standards Act, and the Equal Pay Act. The court dismissed the Equal Pay Act claim for
lack of sufficient evidence. The jury returned findings in favor of defendant on the Title VII
retaliation claim and for plaintiff only on the failure of defendants to pay her overtime.
The court finds and concludes from this record that the several claims voluntarily
dismissed by plaintiff and by the court for lack of evidence were groundless and thus were
legally frivolous. The reduction of plaintiff's attorneys' fees to reflect her limited success does
not consider the costs expended by defendants in response to her groundless claims.
Recognizing this but not wanting to dampen the vigorous enforcement of a claimant's federal
rights, the court awards defendants the limited sum of $1,500.00 as an attorney's fee.
Therefore,
IT IS HEREBY ORDERED that the motion of plaintiff Cindy R. Starks for attorneys'
fees and expenses (Doc. 112) is sustained in part and denied in part. Defendants shall pay
plaintiff $33,920.00 as attorneys' fees and $579.77 in expenses.
IT IS FURTHER ORDERED that the motion of defendants Harris Co. Inc., and Prince
A. Harris for attorney fees (Doc. 113) is sustained in part and denied in part. Plaintiff shall pay
defendants $1,500.00 as an attorney's fee.
IT IS FURTHER ORDERED that defendant’s motion for leave to file a sealed
document is sustained. (Doc. 114.)
/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on March 26, 2014.

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