Garcia v. City of Farmington
AMENDED MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting in part and denying in part 173 Plaintiffs Motion for Costs and Application for Attorneys Fees and Expenses. The Court grants the motion for an award of attorneys fees, expenses, and costs, but denies the full amount requested and awards Plaintiff $142,201.30 in total fees and costs, as well as post-judgment interest (baw)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
No. Civ. 12-383 JCH/SCY
THE CITY OF FARMINGTON,
AMENDED MEMORANDUM OPINION AND ORDER
On August 22, 2016, Plaintiff Juanita Garcia filed a Motion for Costs and Application for
Attorney’s Fees and Expenses (ECF No. 173). The Court, having considered the motion, briefs,
evidence, applicable law, and otherwise being fully advised, concludes that the motion should be
granted in part and denied in part. The Court will enter an award of attorney’s fees, expenses,
and costs, but will reduce the requested amount, as described herein.1
On May 9, 2013, Plaintiff filed a First Amended Complaint with six causes of action.
First Am. Compl., ECF No. 35. On March 13, 2015, the Court granted Defendant summary
judgment on Plaintiff’s retaliation claims (Counts III and IV) and prima facie tort (Count V).
Mem. Op. and Order, ECF No. 88. The Court held a five-day bench trial on February 22-26,
2016, on Plaintiff’s three remaining claims. After trial, the Court entered Findings of Fact and
Conclusions of Law, in which the Court found for Plaintiff and against Defendant on Ms.
1 On January 18, 2017, Defendant filed a Rule 60(a) Motion for Relief from the Court’s Memorandum Opinion and
Order Granting Plaintiff’s Motion for Costs and Application for Attorney’s Fees and Expenses (ECF No. 180),
requesting the Court to correct a clerical mistake in the Court’s December 28, 2016 Memorandum Opinion and
Order (ECF No. 179). Plaintiff did not oppose the Motion. See Def.’s Rule 60(a) Mot. 2, ECF No. 180. The Court,
having reviewed the motion finds that it is well taken and grants Defendant’s motion, and enters this Amended
Memorandum Opinion and Order to correct the arithmetic error in the Court’s calculation of the lodestar amount of
Garcia’s hostile work environment claim (Count II) and awarded her $20,000.00 in
compensatory damages. Findings of Fact and Conclusions of Law 33-39, ECF No. 169. The
Court also concluded, “Ms. Garcia is entitled to her reasonable attorney’s fees and costs on her
Title VII hostile work environment claim. See 42 U.S.C. § 2000e-5(k).” Id. at 39. The Court,
however, found for Defendant and against Plaintiff on Ms. Garcia’s claims for failure to promote
(Count I), breach of the settlement agreement (Count VI). Id. 29-33, 39-41.
A. Attorney’s Fees
The court may award a prevailing party in a Title VII proceeding “a reasonable attorney's
fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k). Determining a
reasonable award of attorney’s fees is a two-step process: first, the court must determine whether
an applicant is a prevailing party entitled to reimbursement of her fees; and second, the court
must determine what fee is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).2 “[A]
plaintiff ‘prevails’ ‘when actual relief on the merits of his claim materially alters the legal
relationship between the parties by modifying the defendant's behavior in a way that directly
benefits the plaintiff.’” Browder v. City of Moab, 427 F.3d 717, 722 (10th Cir. 2005) (quoting
Farrar v. Hobby, 506 U.S. 103, 109 (1992)). This Court already determined that Plaintiff
prevailed on her hostile work environment claim and is entitled to a reasonable fee award.
In order to arrive at a reasonable fee, courts generally use the “lodestar amount,” which is
the “product of the number of attorney hours ‘reasonably expended’ and a ‘reasonable hourly
rate.’” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quoting Hensley, 461
U.S. at 433). The fee applicant has the burden of showing entitlement to the award and
2 The provision for attorney fees in 42 U.S.C. § 1988 was patterned upon the attorney’s fees provisions in Title II
and VII of the Civil Rights Act of 1964, and thus, the same standards apply to all cases in which Congress has
authorized an award of fees to a “prevailing party.” Hensley, 461 U.S. at 433 n.7.
documenting the appropriate hours expended and hourly rates. Case v. Unified Sch. Dist. No.
233, 157 F.3d 1243, 1249 (10th Cir. 1998). The district court may reduce the award where the
documentation of hours is inadequate. Hensley, 461 U.S. at 433. Records must reveal all hours
for which the attorney seeks compensation and how the attorney allotted those hours to specific
tasks. Robinson, 160 F.3d at 1281. A court may reduce the lodestar calculation where the
prevailing part achieved only partial success. See Hensley, 461 U.S. at 435-37. “The district
court may attempt to identify specific hours that should be eliminated, or it may simply reduce
the award to account for the limited success.” Id. at 436-37.
1. Hours Reasonably Expended by Plaintiff’s Counsel
Defendant contends that Plaintiff did not differentiate in her attorney’s fees request which
hours counsel spent on the successful hostile work environment claim, as opposed to the
unsuccessful claims. Defendant urges the Court to deny Plaintiff fees entirely. Despite that the
Attorney Time Records and Expenses are not as detailed regarding certain line items as desired
by the Court, in general they are sufficient, when considered with the other evidence, to
determine that a significant portion of counsel’s time was reasonably expended in litigation of
the hostile work environment claim.
Nevertheless, the Court finds that a percentage reduction of hours is fair and reasonable
in this case in light of Plaintiff’s failure to prevail on the failure to promote and breach of
settlement agreement claims, claims this Court found to be without merit. Much of the
evidentiary support for the unsuccessful claims was distinct from the hostile work environment
claim, making them largely unrelated. Plaintiffs’ billing records, however, are not so detailed to
enable the Court to carve out with specificity work that was only pertinent to the failure-topromote and breach of contract claims. The Court thus will use its discretion to use a percentage
reduction to account for Plaintiff’s limited success on the merits. See Browder, 427 F.3d at 723
(explaining that court should only award prevailing plaintiff attorney’s fees for time spent
prosecuting successful claim and those related to it).
Plaintiff only met with success with one out of five initial claims, and the result was not
one of complete vindication for Plaintiff. Nevertheless, the thrust of this case was the hostile
work environment claim and that claim was the more significant issue in the case. For example,
in Plaintiff’s Revised Proposed Findings of Fact and Conclusions of Law (ECF No. 165),
approximately 2/3 of document relates to the hostile work environment claim, while 1/3 relates
to the unsuccessful claims. The majority of witnesses had testimony to offer on the hostile work
environment claim. The Court finds that this general pattern bore out at trial and litigation as a
whole. Moreover, reviewing the time records, a sizeable portion of counsel’s time was devoted
generally to litigation as a whole. Accordingly, the Court finds that Plaintiff should recover 67%
of the total attorney’s and paralegal fees to account for her significant, yet limited success on the
Because the Court’s deduction will account for Mr. Mozes’s own reduction, the Court
finds that reasonable hours for Mr. Mozes expended in litigating the hostile work environment
claim amounted to 378.82 hours (565.4 hours x 0.67). This result is a reasonable, commensurate
fee in light of the relative success obtained.
2. Reasonable Hourly Rate
A court should establish an hourly rate award based on what the evidence shows the
market commands for lawyers of comparable skill and experience practicing in the area of civil
rights or analogous litigation. See Case, 157 F.3d at 1255-56. Mr. Mozes seeks $325 per hour,
although he acknowledges that his standard hour fee rate is $300, but he has considered raising
that rate. Aff. of Michael Mozes ¶ 17, ECF No. 173-3. Mr. Mozes has been a practicing attorney
for over 20 years with considerable experience in civil rights work. See id. ¶¶ 5-9. He has
attached the Affidavit of Charles Archuleta, an experienced civil rights attorney in the New
Mexico legal community, who avers that a $325 hourly rate is a fair and reasonable fee for the
services rendered by attorneys like Mr. Mozes in Albuquerque. See Aff. of Charles Archuleta,
¶¶ 1-4, 9, ECF No. 173-6. The Court finds, based on the evidence, that an hourly rate of $300,
the amount Mr. Mozes has been charging his clients, is reasonable for an attorney with similar
experience and skill in this market area. See Case, 157 F.3d at 1257 (explaining reasons why
plaintiff’s counsel in civil rights may be paid more than counsel representing governmental
entity); Calderon v. Herrera et al., No. Civ. 2011-0482 WJ/GBW, at 2 (D.N.M. June 20, 2012)
(awarding $300 hourly rate for experienced attorney); Anchondo v. Anderson, Crenshaw, &
Associates, LLC, No. Civ. 08-0202 RB/WPL, at 3 (D.N.M. Oct. 19, 2010) (same).
3. Total Attorney’s Fees
The Court finds that the amount for attorney’s fees is $113,646.00 (378.82 hours x $300).
Using the 7.3125 current GRT for Albuquerque, as Mr. Mozes has done without objection, the
tax amounts to $8,310.36. The total attorney’s fee award is thus $121,956.36 for Mr. Mozes’s
work on the hostile work environment claim.
B. Paralegal Fees
The Court will likewise adjust downward the paralegal hours, awarding 67% of the
requested hours (164 hours x 0.67 = 109.88 hours). See Aff. of Norma L. Mozes, ECF No. 1735. The Court finds that the requested $85 hourly fee for Norma Mozes’s paralegal work is
reasonable in the local market area. See id.; Aff. of Michael Mozes ¶ 19, ECF No. 173-3.
Consequently, the Court will award $9,339.80 in expenses for paralegal fees, plus GRT of
$682.97, for a total amount of $10,022.77.
C. Costs and Other Expenses
Federal Rule of Civil Procedure 54(d)(1) provides that a prevailing party should be
awarded costs. Fed. R. Civ. P. 54(d)(1). Rule 54 “makes the award of costs presumptive.”
Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1204 (10th Cir. 2000). Under Section 1920
of Title 28 of the United States Code, a court may tax costs on the fees of the clerk, transcripts
necessarily obtained for use in the case, fees and disbursements for printing and witnesses, copy
fees where copies were necessarily obtained for use in the case, and docket fees. 28 U.S.C. §
1920; Mitchell, 218 F.3d at 1204 (stating that § 1920 authorizes recovery of costs for all
depositions reasonably necessary to litigation of the case). Where the prevailing party has only
been partially successful, a district court may exercise its discretion under Rule 54(d)(1) and
elect to apportion costs among the parties or to reduce the size of the prevailing party’s award to
reflect the partial success. See Barber v. T.D. Williams, Inc., 254 F.3d 1223, 1234-35 (10th Cir.
“Reasonable expenses incurred in representing a client in a civil rights case should be
included in the attorney’s fee award if such expenses are usually billed in addition to the
attorney’s hourly rate.” Case, 157 F.3d at 1257-58. Out-of-pocket expenses, such as travel, that
are incidental and necessary expenses incurred in providing effective representation are
authorized by 42 U.S.C. § 1988. Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir. 2000). The fee
applicant must show that the requested expenses are usually billed separately to a private client
in the market area and not normally absorbed as part of law firm overhead. See id. at 1297-98.
Costs incurred by third parties who are not attorneys in the case, such as interpreters and
stenographers, are governed by Section 1920. Id.
Mr. Mozes avers that that all the costs and expenses set forth in his cost bill and his time
records and expenses were billed out to his client and are the sort of expenses billed out to all
clients he represents. Aff. of Michael Mozes ¶ 20, ECF No. 173-3. The Court has reviewed the
cost bill and finds that it contains both costs requested under Section 1920 and expenses
requested as those usually billed in addition to the attorney’s hourly rate. Despite Defendant’s
argument that Plaintiff should have separately itemized costs and expenses and her failure to do
so should be fatal to her recovery, the Court will consider the evidence. See Bee v. Greaves, 910
F.2d 686, 690 (10th Cir. 1990) (“Although Bee listed [travel and accommodation] expenses as
costs rather than attorney's fees, his categorization of the items is not dispositive of their
recoverability.”). The Court will now turn to the specific objections made by Defendant.
Defendant argues that Plaintiff has not met her burden of showing the $1,840.70 copy
fees were reasonable and necessary. This case involved a large number of documents, and the
Court’s review of the itemized costs bill indicates that the copies requested at $0.20 per page
were for necessary and reasonable litigation expenses, for example, copies of the complaint,
answer, initial disclosures, motions, briefs, and exhibits. The Court will award Plaintiff the costs
and expenses of the copies requested. See Case, 157 F.3d at 1259 (“We do not require that a civil
rights attorney justify each copy he or she makes, and we do not think that the burden to justify
copies is a high one.”).
2. Legal Research
Although legal research may not be a taxable cost under Section 1920, legal research is a
permitted expense and is normally separately billed to a client. The Court will allow Plaintiff to
recover the reasonable amount of $690 in legal research costs she requests. Case, 157 F.3d at
1257-58 (awarding legal research charges if they are reasonable, itemized, and billed in addition
to the hourly rate).
Plaintiff seeks $10 for faxes, which although not taxable costs, may be permitted
expenses to separately bill a client. See Case, 157 F.3d at 1257-58 (awarding fax charges if they
are reasonable, itemized, and billed in addition to the hourly rate). The costs account for two
faxes, one from the client and one to the magistrate judge assigned to the case, each billed for
$5.00. Plaintiff has not shown, however, the cost per page or why the faxes were necessary for
the litigation, so the Court will deduct the fax expenses from the cost bill.
4. Lodging/mileage/per diem
Travel expenses are out-of-pocket expenses not absorbed as part of firm overhead and
would normally be billed to a private client in this area. The Court will award Plaintiff the costs
of counsel’s mileage to and from and lodging in Farmington for depositions, because the
amounts were reasonable and necessary for litigation purposes. Cf. Bee, 910 F.2d at 690
(explaining that attorney travel costs are type that might be included in attorney’s bill to private
client). The Court, however, will not award $240.00 for “4 per diems” on 9/23-26/13, because
Plaintiff did not show that these expenses were reasonable, necessary, and items normally billed
to a private client. Similarly, the Court will exclude $60.00 for per diem incurred and billed on
November 4, 2013, for a total of $300.00 excluded from the total expense calculation.
5. Deposition Transcripts
Defendants argues that the total of $4,896.17 for deposition transcripts and other
expenses invoiced by the court reporter who traveled to Farmington to transcribe depositions,
including the court reporter’s mileage and hotel fees, are not recoverable because Plaintiff did
not provide evidence that all those transcripts were relied upon by the Court or used at trial.
Additionally, Defendant contends that, if the Court considers the unsupported request, the Court
should only allow recoverable costs for the depositions of Ms. Garcia, Richard Miller, Bryson
Ahkeah, and Donna Brooks, which the Court either cited in its Memorandum Opinion and Order
on Defendant’s Motion for Summary Judgment, or were introduced at trial.
When determining whether deposition costs were necessarily obtained for use in the case,
a court should authorize the recovery of costs for all depositions reasonably necessary to the
litigation of the case based on the facts known to the parties at the time the expenses were
incurred. See Mitchell, 218 F.3d at 1204-05. The Court finds that the depositions taken were
reasonable and necessary to litigate the case based on the facts at the time. See id.; In re Williams
Securities Litigation-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009) (explaining that
materials or services reasonably necessary for use in case, even if they are not ultimately used to
dispose matter, may be recoverable as costs); D.N.M.L.R.Civ. 54.2(b)(2)(C) (explaining that
deposition is reasonably necessary to litigation when Court so determines).
Not all costs associated with the taking of depositions, however, are recoverable, because
the statute covers costs for “printed or electronically recorded transcripts.” Cf. Harvey, 951
F.Supp.2d at 72 (“The statute provides for costs for ‘printed or electronically recorded
transcripts,’ it does not provide for all costs associated with the taking of depositions.”). Plaintiff
has not asserted that the court reporter’s mileage and hotel costs are covered by Section 1920.
Nor has Plaintiff provided specific evidence or argument that such costs are the type of expenses
generally billed by attorneys separately to their clients, and thus, recoverable under Section 1988.
Accordingly, because Plaintiff failed to meet her burden, the Court will exclude the costs of the
court reporter’s mileage and hotel, as well as the sales tax charged for those amounts, for a total
reduction from the total deposition costs of $632.59 ($90 mileage + $501.21 hotel + $41.38 7%
sales tax). See Pl.’s Cost Bill, ECF No. 173-1 at 8 of 20.
6. Court Transcripts
Defendant objects to $19.80 for a copy of the transcript of the Court’s October 13, 2015
status conference. Costs of transcripts of a court proceeding is taxable as a cost when requested
by a party and authorized by the Court before transcription. D.N.M.L.R.Civ. 54.2(a). The Court
did not pre-authorize the transcription, so the cost is not taxable under Section 1920. Moreover,
the status conference concerned consolidation. Plaintiff has not shown that the expense for this
transcript was necessarily incurred in the litigation. See Clerk’s Minutes, ECF No. 97. The Court
will therefore reduce Plaintiff’s Cost Bill by an additional $19.80.
7. Witness Fees
Defendant argues that fees for Emeric Blair, Karen Reyes, Bryan Johnson, and Shannon
Fitzgerald should not be awarded. Defendant argues that Emeric Blair and Karen Reyes were
friends of Ms. Garcia’s and need not have been subpoenaed, but there is no evidence presented
that they would have shown up at trial absent a subpoena. With respect to Mr. Johnson and Mr.
Fitzgerald, Defendant asserts that they were called exclusively to testify concerning the failure to
promote and breach of contract claims. As to Mr. Fitzgerald, the Court finds that he offered
testimony relevant to Ms. Garcia’s hostile work environment claim, in addition to her other
claims. See Trial Tr. 26:9-29:2, 33:12-41:23. Plaintiff did not refute that Mr. Johnson testified at
trial to matters only regarding her promotion and breach of contract claims. See Pl.’s Reply 9,
ECF No. 176. Although at the time Plaintiff took Mr. Johnson’s deposition, there was reason to
believe he might have testimony as to all the claims, by the time of trial, Plaintiff only offered
testimony by Mr. Johnson related to the failure to promote claim. The Court will therefore deny
Plaintiff fees for Mr. Johnson. The Court will therefore reduce the cost bill by $290.00.
Defendant additionally argues that the witness fee amount is excessive. Witness fees are
recoverable under Section 1920, but limited by 28 U.S.C. § 1821 to $40 per day plus mileage.
See 28 U.S.C. § 1821; Fed. R. Civ. P. 45(b)(1); Harvey v. Mohammed, 951 F.Supp.2d 47, 67-68
(D.D.C. 2013). Defendant objects to the witness fee of $290.00 billed for each of the five
witnesses because Plaintiff has not demonstrated why each is entitled to $250.00 for mileage.
Defendant notes that, even if Plaintiff used Farmington generally, rather than the witnesses’
specific residences, the mileage from Farmington to the courthouse is only $209.64. Because
Defendant acknowledges that witness mileage is recoverable by statute and appears to
acknowledge that the witnesses are from the Farmington area, this Court will use $209.64 for the
mileage for each witness and allow a fee of $249.64 for each witness. The Court will therefore
further reduce the cost bill by $161.44 (4 witnesses x ($290.00 - $249.64)).
The total deducted from witness fees will be $451.44 ($290.00 + $161.44).
8. Mileage to and from Farmington – Subpoenas
Defendant contends that the request billed on February 10, 2016 for “Mileage to and
from Farmington – Subpoenas to Blair, Reyes, Brooks, Baca and Ahkeah” does not explain who
incurred the mileage or why. Plaintiff did not respond to this particular argument. The Court will
reduce the cost bill by $206.22.
9. Parking and mileage
Plaintiff requests parking and mileage for a court status conference on March 26, 2015
($11.00); a court hearing on October 13, 2015 ($11.00); and mileage and parking for four days
during trial ($44.00). Pl.’s Cost Bill, ECF No. 173-1 at 4 of 20. These costs are not covered by
Section 1920, and the Court is not convinced that these are the sort of reasonable and necessary
expenses usually billed to clients when hearings and trial are in the same city as counsel’s office.
Cf. Harvey, 951 F.Supp.2d at 73 (excluding mileage and parking fees). The Court will therefore
reduce the cost bill by $66.00.
10. Witness lodging and meals
Defendant objects to $1,017.40 for “Trial Witnesses’ lodging,” $226.22 for “Trial
Witnesses’ mil[e]age,” and $185.69 for “Trial Witnesses’ Meals.” Plaintiff did not specifically
address this argument and thus has not met her burden of showing that lodging and meal costs
for witnesses are recoverable as expenses usually charged separately in the area by attorneys.
Neither is this Court convinced that such costs are covered by Section 1920, and thus will be
excluded. See Harvey, 951 F.Supp.2d at 71 (“Lodging costs for the parties, witnesses, and
consultants are neither the sort of expense typically included in attorney's fees, nor do they fall
under the definition of ‘costs.’”). The Court will reduce the cost bill by an additional $1,429.31.
11. Miscellaneous items
Defendant also objects to expenses for “Trial Folder—Pleadings file” ($12.00), “116
Bates Stamp—Discovery” ($12.60); “Doc. 42 Def. First Set of Supp. Answers ($3.45); “10 Trial
Folders ($50.00); and “5 1-200 Tabs for Trial Folders” ($160.00). The Court will not strike the
$3.45 cost, as it appears to cover copies that are reasonably and necessarily incurred in the
litigation. The Court will, however, not permit the remaining fees because they are not covered
by Section 1920 and Plaintiff has not shown that those are the types of expenses ordinarily
separately billed to a private client rather than being subsumed in overhead costs. The Court will
therefore reduce the expenses award by $234.60.
D. Final Calculation of Attorney’s Fees and Costs
Attorney’s Fees = $121,956.36 +
Paralegal Fees = $10,022.77 +
Costs and Expenses = $10,222.17 ($13,572.13 total - $10.00 faxes -
$300.00 per diem - $632.59 deposition costs - $19.80 court transcripts - $451.44 witness fees $206.22 Mileage to and from Farmington – Subpoenas - $66.00 parking and mileage - $1,429.31
witness lodging and meals - $234.60 miscellaneous) =
4. Total Award = $142,201.30
E. Post-Judgment Interest
Plaintiff requests post-judgment interest on the fee award. Defendant has not contested
this request. The Court will therefore award post-judgment interest on the attorney fee and cost
award. See Wheeler v. John Deere Co., 986 F.2d 413, 415 (10th Cir. 1993) (holding that 28
U.S.C. § 1961 mandates interest on award of attorney’s fees and costs).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Costs and Application for
Attorney’s Fees and Expenses (ECF No. 173) is GRANTED in part and DENIED in part as
1. The Court GRANTS the motion for an award of attorney’s fees, expenses, and costs,
but DENIES the full amount requested.
2. The Court awards Plaintiff $142,201.30 in total fees and costs, as well as postjudgment interest.
UNITED STATES DISTRICT JUDGE
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