Fitzsimmons v. Stewart et al

Filing 86

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part 77 Motion for Attorney Fees and costs. (tah)

Case 2:18-cv-00069-KG-GJF Document 86 Filed 10/13/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREA FITZSIMMONS,
Plaintiff,
v.

Civ. No. 18-69 KG/GJF

THOMAS STEWART, and
STEWART INDUSTRIES INTERNATIONAL
ROSWELL LLC,
Defendants.
____________________________________

CONSOLIDATED WITH

ANDREA FITZSIMMONS,
Plaintiff,
v.

Civ. No. 20-226 KG/GJF

STEWART INDUSTRIES
INTERNATIONAL ROSWELL LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
This is a sex discrimination and unequal pay lawsuit. Plaintiff filed the instant
“Plaintiff’s Motion and Memorandum for Attorney’s Fees and Costs” (Motion) on February 27,
2020. (Doc. 77). Neither Defendant Thomas Stewart nor Defendant Stewart Industries
International Roswell LLC responded to the Motion. Having reviewed the Motion and its
accompanying affidavit by Plaintiff’s attorney, Wayne Suggett, the Court grants the Motion in
part as described below.

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I. The Affidavit of Wayne R. Suggett (Docs. 77-1 and 77-2)
Suggett attests that his time entries reflect only the work he did in “successfully
prosecuting Count I against Defendant Thomas Stewart.”1 (Doc. 77-1) at ¶ 1. Suggett also
attests that he removed time reflecting “office overhead.” Id. Finally, Suggett attests that he
“removed time entries related to Judge Fouratt’s order to show cause [Doc. 64] where attorney
fees were awarded and paid.” (Doc. 77-1) at ¶ 2. Given the above limits on time entries, Suggett
attests that he worked a total of 78.7 hours with respect to the prosecution of Count I against
Defendant Stewart. (Doc. 77-2) at 7. To prove those hours, Suggett submitted a “summary of
contemporaneous time records.” (Doc. 77-1) at ¶ 1.
In addition, Suggett seeks a $270.00 hourly rate. Id. at ¶ 4. To support the
reasonableness of that hourly rate, Suggett attests that he has practiced employment law for the
last 25 years. Id. at ¶ 5. Suggett further concludes that this is a reasonable rate after “speaking
with other practitioners in the Albuquerque area, and reviewing fee petitions on this Court’s
electronic research system….” Id. at ¶ 6.
Considering the 78.7 hours expended on prosecuting Count I against Defendant Stewart
and a $270.00 hourly rate, Suggett seeks a total of $21,249.00 in attorney’s fees, plus the
applicable gross receipts tax. (Doc. 77-2) at 7. Lastly, Suggett seeks to recover the $400.00 fee
incurred in filing the complaint in Civ. No. 18-59 KG/GJF. (Doc. 77) at 4.

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Having granted a motion for partial summary judgment as to the Count I claims brought against
Defendant Stewart and having granted Plaintiff’s motion to voluntarily dismiss the Count II
claims against Defendant Stewart, the only other count against Defendant Stewart, the Court
entered a final judgment in favor of Plaintiff and against Defendant Stewart on February 13,
2020. See (Doc. 75). On July 14, 2020, the Court entered a final judgment in favor of Plaintiff
and against the remaining Defendant, Stewart Industries International Roswell LLC. (Doc. 85).
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II. Discussion
A. Reasonable Attorney’s Fees
Plaintiff correctly maintains that she is entitled to reasonable attorney’s fees as the
prevailing or successful party under various federal and state employment statutes. See (Doc.
77) at 2. “To determine the reasonableness of a fee request, a court must begin by calculating the
so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption that this
lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). To arrive at a lodestar amount, the court “multipl[ies] the hours … counsel
reasonably spent on the litigation by a reasonable hourly rate.” Case v. Unified Sch. Dist. No.
233, Johnson Cty., Kan., 157 F.3d 1243, 1249 (10th Cir. 1998) (citation omitted). “[T]he fee
applicant bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Id. (citation omitted).
Having reviewed Suggett’s “summary of contemporaneous time records,” the Court
determines Plaintiff has established that Suggett reasonably spent 78.7 hours prosecuting Count I
against Defendant Stewart. See (Doc. 77-1) at ¶ 1; (Doc. 77-2). The Court further concludes that
Plaintiff has established that $270.00 per hour is a reasonable hourly rate. See United
Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1234 (10th Cir. 2000) (“party
requesting the fees bears ‘the burden of showing 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’” (citation omitted)). The Court notes that in 2018 it observed that it
“has previously stated that $200.00 per hour is a ‘relatively low rate’ for attorneys in New
Mexico.” O Centro Espirita Beneficente Uniao Do Vegetal in U.S. v. Duke, 343 F. Supp. 3d
1050, 1087 n.14 (D.N.M. 2018). In fact, awards of hourly rates of $275.00 and higher are not

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atypical in this District for attorneys with 11 years or more of legal experience. See id.
(summarizing awards of attorney rates in District of New Mexico); see also Rehburg v. Bob
Hubbard Horse Transportation, Inc., 2019 WL 5653958, at *2 n.1 (D.N.M.) (same).
Applying the lodestar method to the above determinations, the Court will enter a
judgment awarding Plaintiff the following reasonable attorney’s fees: $21,249.00 (78.7 hours x
$270.00), plus the applicable gross receipts tax.
B. Costs
Federal Rule of Civil Procedure 54(d) distinguishes between taxable costs “allowed to the
prevailing party,” which the Clerk determines, and “nontaxable expenses” which an attorney can
claim by filing a motion before the Court. Local Rule 54.1 provides that “[a] motion to tax costs
must be filed and served on each party within thirty (30) days of entry of judgment” while 28
U.S.C. § 1920 defines taxable costs to include, for instance, “[f]ees of the clerk….”2
Here, the $400.00 fee for filing the complaint is a taxable cost. See Nevada Prop. 1, LLC
v. Kiwibank Ltd., 2020 WL 5633048, at *3 (D. Nev.) (stating that “[f]iling fees … are taxable
costs”); Baca, 2014 WL 12650989 at *2, n.2 (concluding that “Section 1920(1) clearly allows
the court filing fee to be recovered as a taxable cost and its omission in D.N.M. LR-Civ. 54.2
does not preclude recovery”). Plaintiff, however, did not present that taxable cost to the Clerk in
a motion to tax costs as required by Rule 54(d)(1) and Local Rule 54.1. Nonetheless, since
Plaintiff requested the above taxable cost within the time frame provided in Local Rule 54.1, the
Court will allow Plaintiff to file a motion to tax costs with the Clerk to recover the $400.00 filing
fee.
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Local Rule 54.2, which lists specific taxable costs, supplements the more general taxable costs
set forth in Section 1920. See Baca v. Berry, 2014 WL 12650989, at *2, n.2 (D.N.M.) (noting
that Tenth Circuit appears to recognize Local Rule 54.2 does not limit court’s authority under
Section 1920).
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IT IS ORDERED that Plaintiff’s Motion and Memorandum for Attorney’s Fees and
Costs (Doc. 77) is granted in part in that
1. the Court will enter a judgment awarding Plaintiff $21,249.00 in reasonable attorney’s
fees, plus the applicable gross receipts tax, to be recovered from Defendant Thomas Stewart; and
2. Plaintiff has 14 days from the date of the entry of this Memorandum Opinion and
Order to file a motion to tax costs with the Clerk to recover the $400.00 filing fee.

________________________________
UNITED STATES DISTRICT JUDGE

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