Fontanillas-Lopez et al v. Morel Bauza Cartagena & Dapena LLC et al

Filing 109

OPINION AND ORDER granting in part 98 Motion for Attorney Fees. The plaintiff is liable to the prevailing defendants for attorney fees in the amount of $53,662.50. The matter of costs is hereby referred to the Clerk of Court per Fed.R.Civ.P. 54(d)(1). Signed by Judge Juan M. Perez-Gimenez on 11/18/2014. (PMA)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
LOURDES DEL ROSARIO
FONTANILLAS-LOPEZ,
Plaintiff,
CIV. NO. 12-1206(PG)
v.
MOREL BAUZA CARTAGENA & DAPENA LLC,
ET AL,
Defendants.

OPINION AND ORDER
Before the court is the defendants’ motion for attorney fees (Docket
No. 98, the plaintiff’s response (Docket No. 103) and the defendants’ reply
thereto (Docket No. 106). For the reasons explained below, the court GRANTS
IN PART the defendants’ request.
I. BACKGROUND
On March 23, 2012, plaintiff Lourdes del Rosario Fontanillas Lopez
(hereinafter “Plaintiff” or “Fontanillas”), along with her parents Mildred
Milagros Lopez and Luis Alfredo Fontanillas,1 filed the above-captioned claim
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et
seq. (“Title VII”), against Plaintiff’s former employer Morell, Bauzá,
Cartagena & Dapena (“MBCD” or “the Firm”) and individual defendants Pedro
Antonio

Morell

(“Morell”),

Antonio

Bauzá

(“Bauzá”),

Edgardo

Cartagena

(“Cartagena”), Ramon E. Dapena (“Dapena”), and Lourdes M. Vázquez (“Vázquez”)
(collectively referred to as “Defendants”). The Plaitniff alleged she was the
victim of discrimination on the basis of gender, a hostile work environment
and retaliation for engaging in protected conduct. See Docket No. 1. The
Plaintiff also invoked supplemental jurisdiction over her state law claims
under several statutes.
On February 7, 2014, the court granted Defendants’ motion for summary
judgment and dismissed Plaintiff’s claims under Title VII with prejudice, and
the supplemental state law claims without prejudice. See Docket No. 94. Having
1
Mildred Milagros Lopez and Luis Alfredo Fontanillas requested the dismissal with
prejudice of their claims and partial judgment was entered accordingly on November 9, 2012,
see Docket No. 33.

CIV. NO. 12-1206(PG)

Page 2

prevailed, the Defendants now seek to recover the attorney fees and costs
incurred in their defense of Plaintiff’s claims. See Docket No. 98. The
Plaintiff opposed their motion arguing that the settlement negotiations that
took place evince that her claim was not unfounded, frivolous or otherwise
unreasonable; that the amount requested is excessive; and, that the request
is inadequately documented. See Docket No. 103. The Defendants replied in
turn. See Docket No. 106.
II. DISCUSSION
A. Attorney Fees
1. Fee Entitlement
Per the so-called “American Rule,” litigants must generally bear their
own attorney fees and costs. See Christiansburg Garment Co., v. EEOC., 434
U.S. 412, 415 (1978); Bercovitch v. Baldwin School, 191 F.3d 8, 10 (1st Cir.
1999). However, Congress has created an exception for prevailing parties in
42 U.S.C. § 1983 and Title VII cases, authorizing the award of attorney fees
as

part

of

the

Christiansburg

costs.

Garment

42
Co.,

U.S.C.
434

§§
U.S.

1988
at

and

2000e-5(k);

422;

see

Tejada-Batista

also
v.

Fuentes-Agostini, 263 F.Supp.2d 321, 326 (D.P.R. 2003). Insofar as this was
an action under Title VII, the relevant statute provides that:
[i]n any action or proceeding under this subchapter the
court, in its discretion, may allow the prevailing
party, other than the Commission or the United States,
a reasonable attorney’s fee … as part of the costs, … .
42 U.S.C. § 2000e-5(k).
“[A]n award of fees in favor of a prevailing plaintiff in a civil rights
suit is ‘the rule, whereas fee-shifting in favor of a prevailing defendant is
the exception.’” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 235-236 (1st
Cir.2010) (citing Casa Marie Hogar Geriatrio v. Rivera Santos, 38 F.3d 615,
618 (1st Cir.1994)); see also Irving v. Town of Camden, No. 12-1850, 2013 WL
7137518, at *1 (1st Cir. April 17, 2013). “The Supreme Court has held in a
Title VII employment discrimination case that attorney’s fees may not be
awarded to a prevailing defendant unless there is a ‘finding that the
plaintiff’s action was frivolous, unreasonable, or without foundation’ or that
‘plaintiff continued to litigate after it clearly became so.’” Bercovitch, 191
F.3d at 10 (citing Christiansburg Garment Co., 434 U.S. at 421)). See also
Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2 (1983) (“A prevailing defendant
may recover an attorney’s fee only where the suit was vexatious, frivolous,
or brought to harass or embarrass the defendant.”). Notwithstanding, the

CIV. NO. 12-1206(PG)

Page 3

Supreme Court has cautioned district courts to “resist the understandable
temptation to engage in post hoc reasoning by concluding that, because a
plaintiff did not ultimately prevail, his action must have been unreasonable
or without foundation.” Christiansburg Garment Co., 434 U.S. at 421-422.
In the case at hand, the Defendants clarify in their reply that their
request for attorney fees is not grounded on the argument that the Plaintiff’s
suit was frivolous from the beginning. Instead, the Defendants contend that
it became clear once discovery ensued that the Plaintiff’s claim held no
water. See Docket No. 106 at page 2 n. 1. Hence, the Defendants only seek to
recover the attorney fees incurred for the work performed after they sent the
Plaintiff a letter pursuant to Rule 11 of the Federal Rules of Civil
Procedure.2 See id.
When considering the reasonableness of a plaintiff’s decision to continue
to litigate after a claim has clearly become frivolous, unreasonable or
groundless as the basis for an attorney fees award, the First Circuit has held
that a court must find, at a minimum, that “following the filing of the claim,
circumstances changed to such an extent that a reasonable person could not
help but conclude that the claim was no longer viable.” Lamboy-Ortiz, 630 F.3d
at 242. “Such a change would include, for example, the receipt of evidence in
the course of discovery establishing a complete defense, or a development in
the controlling law that foreclosed the claim.” Id. In the course of this
analysis, however, “[g]reat caution must be taken in assessing whether a claim
‘clearly’ became untenable prior to the close of suit because of the
particular danger of hindsight logic.” Id. at 241.
The complaint in this case contained allegations stating that the
Plaintiff was the victim of sex discrimination and retaliation in violation
of Title VII on the part of the Defendants. After discovery commenced, the
Defendants requested that Plaintiff voluntarily dismiss her Title VII claims
against the individual co-defendants during a status conference held on

2
The court, under certain conditions, may impose an appropriate sanction upon the
attorney, law firm, or party that has violated subdivision (b) of Federal Rule of Civil
Procedure 11, which provides for sanctions when claims are frivolous or are brought for an
improper purpose. See Fed.R.Civ.P. 11. Rule 11 “imposes on any party who signs a pleading,
motion, or other paper … an affirmative duty to conduct a reasonable inquiry into the facts
and the law before filing, and that the applicable standard is one of reasonableness under
the circumstances.” Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498
U.S. 533, 551 (1991). “Rule 11(b) proscribes not only written arguments made with any
improper purpose, but also advancing frivolous arguments, as well as the assertion of
factual allegations without evidentiary support or the likely prospect of such support.”
Citibank Global Markets, Inc. v. Rodriguez Santana, 573 F.3d 17, 32 (1st Cir.2009) (internal
citations and quotation marks omitted).

CIV. NO. 12-1206(PG)

Page 4

December 18, 2012. See Docket No. 36. The court granted the Plaintiff until
January 15, 2013 to do so. Id.

However, the deadline elapsed and Plaintiff

failed to move for such a dismissal. The individual co-defendants were thus
forced to file a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure insofar as it is clearly-established law that there is no
individual employee liability under Title VII. See Docket No. 41.
Shortly after granting the dimissal of these claims, see Docket No. 53,
the court met with the parties and discussed the content of several motions
for sanctions that were on record. During the course of this conference on
April 5th, 2013, the court expressed its dissatisfaction with Plaintiff’s
litigation tactics and threatened her with sanctions. See Docket No. 54.
After the conclusion of discovery proceedings, the Defendants filed a
motion for summary judgment on July 26, 2013. See Docket No. 63. The court
notes that the arguments set forth of this motion are indeed very similar to
the content of the Rule 11 letter the Defendants sent to the Plaintiff seven
months earlier and now attach to their motion for attorney fees, see Docket
No. 98-2. After careful review, the court later discussed the merits of the
pending motion for summary judgment with the parties during a pre-trial
conference held on September 24th, 2013. The court forewarned the Plaintiff of
the possibility that her claims be summarily dismissed and that attorney fees
be awarded to the Defendants upon dismissal. See Docket No. 84. And although
the court encouraged the parties to entertain a settlement transaction that
would put an end to the litigation before the court engaged in the timeconsuming effort of rendering an opinion and order on the pending motion,
their efforts proved fruitless. Instead, the Plaintiff attempted to bypass
this court’s instructions and filed a motion requesting the dismissal with
prejudice of her claims without the imposition of costs and attorney fees, see
Docket No. 86, before formally rejecting the Defendants’ proposed stipulation
of dismissal, see Docket No. 88. However, she knew all too well that the
Defendants were unwilling to have her claims be dismissed and waive the
possibility of recovering attorney fees. Yet she proceeded anyways. See Docket
No. 89.
Upon learning of the Defendants’ opposition to have her claims be
dismissed on such terms, the court denied the Plaintiff’s request for
voluntary dismissal, see Docket No. 90, and eventually granted the Defendants’
motion for summary judgment, see Docket No. 94. In fact, the court found that

CIV. NO. 12-1206(PG)

the

Plaintiff

was

Page 5

unable

to

establish

a

prima

facie

case

of

either

discrimination based on sex or retaliation under Title VII. See id.
When determining if the Plaintiff here continued to litigate her suit
beyond the point when it clearly became frivolous, unreasonable or without
foundation, the court must acknowledge that the survival of summary judgment
“has some value in determining whether a claim was or became unreasonable or
without foundation.” Lamboy-Ortiz, 630 F.3d at 242.
Where fees are sought by a prevailing defendant against
an unsuccessful plaintiff in a civil rights case, one
relevant factor will often be whether the plaintiff
succeeded in making out a prima facie case — a
circumstance which may well prompt a reviewing tribunal
to ask whether the plaintiff’s case withstood summary
judgment and/or directed verdict motions.
Foster v. Mydas Associates, Inc., 943 F.2d 139, 144 (1st Cir.1991). On the
opposite hand, most cases that would warrant an award of attorney’s fees in
favor

of

a

prevailing

defendant

-

those

that

are

truly

frivolous,

unreasonable, or without foundation - will not survive summary judgment. See
Lamboy-Ortiz, 630 F.3d at 242.
Here, Fontanillas was duly apprised that her claims were devoid of any
merit in the Rule 11 letter the Defendants sent her after taking her
deposition. Not only was her own deposition testimony regarding her claims
found to be lacking, but also, “a reasonable amount of legal research should
have alerted [plaintiff’s] counsel to the implausibility of success on the
merits of any of her claims.” Bluestein v. Central Wisconsin Anesthesiology,
S.C., 769 F.3d 944, 957 (7th Cir.2014) (finding district court did not abuse
discretion in award of attorney fees in favor of prevailing defendant in
discrimination claims brought under Title VII, the Americans with Disabilities
Act (ADA), and the Rehabilitation Act). In fact, her failure to survive
summary judgment bore directly on the merits, or the lack thereof, of her
claims. Plaintiff was simply unable to raise a genuine issue of material fact
on her claims of sex discrimination and retaliation. See Docket No. 94.
In light of the foregoing discussion regarding the procedural bakground
of this case, the court finds that the Plaintiff continued to vexatiously and
unreasonably litigate a claim that, after the taking of her deposition, had
clearly become frivolous and without foundation. Therefore, an award of fees
in favor of Defendants is appropriate.

CIV. NO. 12-1206(PG)

Page 6

2. Lodestar Calculation
Two defense attorneys have submitted fee applications: Ms. Rosangela O.
Sanfilippo-Resumil and Mr. Raymond E. Morales-Ortiz. To determine a reasonable
amount of attorney fees, the “lodestar” method is ordinarily the starting
point for determining the amount of a fee award … .” Diaz v. Jiten Hotel
Management, Inc., 741 F.3d 170, 173 n. 1 (1st Cir.2013) (citations and
quotation marks omitted omitted).

“The lodestar is the product of the hours

reasonably worked times the reasonable hourly rate(s).” Gross v. Sun Life
Assur. Co. of Canada, 763 F.3d 73, 86 (1st Cir.2014) (citation and quotation
marks omitted). “In crafting its lodestar, the trial court may adjust the
hours

claimed

to

remove

time

that

was

unreasonably,

unnecessarily

or

inefficiently devoted to the case … .” De Jesus Nazario v. Morris Rodriguez,
554 F.3d 196, 207 (1st Cir.2009). “It also may adjust the lodestar itself,
upwards or downwards, based on any of several different factors, including the
results obtained and the time and labor actually required for the efficacious
handling of the matter.” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 336
(1st Cir.2008). After calculating the time counsel for the prevailing party
reasonably expended on the case, the judge should multiply these hours by the
“prevailing rates in the community (taking into account the qualifications,
experience, and specialized competence of the attorneys involved).” Gay
Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001)
(citations omitted). “Appropriate supporting documentation includes counsel’s
contemporaneous time and billing records and information establishing the
usual and customary rates in the marketplace for comparably credentialed
counsel.” Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir.2011) (citations
omitted).
a. Hourly Rate
The court will first determine the appropriate hourly rate for the
attorneys on record who represented the Defendants in this case. On the one
hand, Ms. Sanfilippo requests an hourly rate of $185.00. She submitted a
declaration from a capital partner at the law firm where she works evincing
she has approximately ten (10) years of experience as a practicing attorney
specializing in labor and employment matters. See Docket No. 106-2. On the
other

hand,

Mr.

Morales,

an

attorney

with

thirty-three

(33)

years

experience, requests a rate of $150.00 per hour. See Docket No. 106-1.

of

CIV. NO. 12-1206(PG)

Page 7

In her opposition, the Plaintiff recognizes attorney Morales’ expertise
in labor matters, see Docket No. 103 at page 4, but complains of attorney
Sanfilippo’s rate.3
The lodestar method requires that the hourly rate used by the court be
“in line with those prevailing in the community for similar services by
lawyers

of

reasonably

comparable

skill,

experience,

and

reputation.”

Tejada-Batista, 263 F.Supp.2d at 327 (quoting Blum v. Stenson, 465 U.S. 886,
895 (1984)). “In reaching its determination, the court may rely upon its own
knowledge of attorneys’ fees in the community.” Rodriguez v. International
College of Business and Technology, Inc., 356 F.Supp.2d 92, 96 (D.P.R. 2005)
(citing Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989)).
The Plaintiff does not challenge the reasonableness of counsel Morales’
hourly rate of $150.00. The court finds that the rate he charged is
appropriate, if not at the lower end for attorneys in the Puerto Rico
community with comparable experience and expertise. See Rodriguez-Garcia v.
Municipality of Caguas, 787 F.Supp.2d 135 (D.P.R. 2011) (appropriate hourly
rates for calculating attorney fee award in civil rights action in Puerto Rico
for attorneys with over thirty years of experience were $250 for in-court
time, and $225 for out-of-court time). On the other hand, attorney Sanfilippo
is not such a seasoned attorney as is Mr. Morales, and yet is charging $35.00
more per hour for her work, which in this case is the larger share of the
hours charged by a significant margin. The court will thus equate her hourly
rate

to

that

of

attorney

Morales,

to

wit,

$150.00.

See,

e.g.,

Guillemard–Ginorio v. Contreras, 603 F.Supp.2d 301 (D.P.R.2009) (finding
reasonable hourly rate of $155 for attorney 10 years of experience).
b. Number of Hours
In their motion, attorney Morales is charging for a total of 27.75 hours,
and attorney Sanfilippo states she invested a total of 450 hours See Docket
No. 98 at page 10. Before making any adjustments, the court approvingly notes
that the number of hours is only a fraction of the total amount of work the
attorneys dedicated to this litigation insofar as they only account for hours
billed after they sent Plaintiff the Rule 11 letter in December of 2012, nine
months after the case was filed and well-into discovery proceedings.

3
The Plaintiff also pointed out at that the Defendants’ attorneys had not provided any
basis for their award in order to place the court in a position to determine the appropriate
market rates for each. See Docket No. 103 at page 5. Nevertheless, these shortcomings were
rectified in their reply. See Docket No. 106.

CIV. NO. 12-1206(PG)

Page 8

Now, having carefully reviewed itemized invoices submitted by Defendants’
attorneys, we find the amount of hours logged and the work performed by
attorney Morales were reasonable. However, the court deems the hours charged
by attorney Sanfilippo in the performance of some tasks to be at times
excessive and require some downward adjustments.
For example, in our calculations, Sanfilippo dedicated a total of 239.75
hours to the motion for summary judgment, doing either legal research or
drafting it. See Docket No. 99-2. That figure is the equivalent of six weeks
of full-time work (assuming forty hours per week). In addition, it also stems
from her supporting documents that she spent a total of 131.25 hours working
on a “motion to strike/reply” after the filing of the motion for summary
judgment. Id. This figure, in turn, is the equivalent of over three weeks of
full-time work. The court believes the time spent on these filings is
excessive, especially considering she asserts she has been “practicing labor
and employment law, almost exclusively, for the past ten (10) years,” see
Docket No. 106 at page 5 n. 6.
As a result, the court finds that a reduction in the total hours she
billed is warranted and will reduce the amount of hours she seeks fees for by
120 hours (or three weeks of full-time work in our estimation), for a total
of 330 hours instead.
In sum, having ascertained the number of hours productively expended on
this litigation and multiplying that times the reasonable hourly rate, the
court now finds that the Plaintiff is liable to the Defendants in the amount
of $4,162.50 for attorney Morales’s fees ($150.00 times 27.75 hours) and
$49,500.00 for attorney Sanfilippo’s fees ($150.00 times 330 hours), for a
total of $53,662.50 (a $29,587.50 reduction of the total award sought).
B. Bill of Costs
The Defendants have also filed a Bill of Costs (Docket No. 96), which
the Plaintiff opposed in her response to the Defendants’ motion for
attorney fees. Rule 54(d)(1) of the Federal Rules of Civil Procedure
states, in relevant part, as follows:
Unless a federal statute, these rules, or a court
order
provides
otherwise,
costs--other
than
attorney’s fees--should be allowed to the prevailing
party. … The clerk may tax costs on 14 days’ notice.
On motion served within the next 7 days, the court
may review the clerk’s action.

CIV. NO. 12-1206(PG)

Page 9

Fed.R.Civ.P. 54(d)(1). In accordance with this rule as well as Rule 54 of
the Local Rules of the District of Puerto Rico, the issue of costs is
REFERRED to the Clerk of the Court.
III. CONCLUSION
For

the

Defendants’

reasons

motion

for

stated

above,

attorney

fees

this

Court

(Docket

hereby

No.

98)

GRANTS
and

IN

PART

awards

them

$53,662.50 in attorney fees. The Clerk of Court SHALL tax costs as it deems
appropriate pursuant to Rule 54(d)(1) of the Federal Rules of Civil Procedure
and Rule 54 of the Local Rules of the District of Puerto Rico.
IT IS SO ORDERED.
In San Juan, Puerto Rico, November 18, 2014.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
U.S. DISTRICT JUDGE