Pittington v. Great Smoky Mountain Lumberjack Feud, LLC (PLR2)

Filing 100

MEMORANDUM and ORDER accepting in whole 97 the Report and Recommendation, which the court adopts and incorporates into its ruling. Pittington's objections to the R&R [R. 98] are OVERRULED; his motion for attorney fees and ex penses [R. 78] is GRANTED to the extent that Pittington is awarded attorney fees of $98,526.67 and litigation expenses of $3,330.10. In all other respects the motion is DENIED. Signed by District Judge Pamela L Reeves on September 26, 2017. (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE

DAVID PITTINGTON,
Plaintiff,
v.
GREAT SMOKY MOUNTAIN
LUMBERJACK FEUD, LLC,
Defendant.

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No. 3:14-cv-00397
REEVES/SHIRLEY

MEMORANDUM AND ORDER

On August 7, 2017, the Honorable C. Clifford Shirley, United States Magistrate
Judge, filed a 20-page Report and Recommendation [R. 97], in which he recommended
that Pittington’s motion for attorney fees and litigation expenses [R. 78] be granted in part
and denied in part. Specifically, the magistrate judge recommended that Pittington’s
motion for attorney fees be reduced to $98,526.67, and his motion for litigation expenses
be reduced to $3,330.10.
This matter is before the Court for consideration of Pittington’s objections [R. 98]
to the Report and Recommendation. As required by 28 U.S.C. § 36(b)(1) and Rule 72(b),
Fed.R.Civ.P., the Court has now undertaken a de novo review of those portions of the
Report and Recommendation to which Pittington objects. For the reasons that follow, the
Court finds Pittington’s objections without merit and the objections will be overruled.

Pittington sued his former employer, defendant Great Smoky Mountain Lumberjack
Feud, alleging violations of the Americans with Disabilities Act (ADA), Title VII, and the
Tennessee Human Rights Act (THRA).

Pittington sought back pay, front pay,

compensatory damages, non-pecuniary damages, punitive damages, and post-judgment
interest, not to exceed $225,000. The case proceeded to trial before a jury. The court
granted defendant’s motion to dismiss the ADA claims. The jury returned a verdict in
plaintiff’s favor on the Title VII and THRA claims and awarded Pittington $10,000 in back
pay damages, but no other damages. Following trial, Pittington filed a motion to amend
the judgment or for a new trial on the issue of damages. The court granted the motion in
part to allow prejudgment interest, but denied Pittington’s request for a new trial on
damages.
Pittington moves for an award of $163,443.00 in attorney fees and litigation costs
of $12,051.28. As stated above, the magistrate judge recommended cutting the attorney
fee award to $98,526.67, and the litigation costs award to $3,330.10. Pittington does not
object to the magistrate judge’s $11,843.50 reduction of the attorney fee amount related to
the proration of time spend on his wife’s lawsuit nor the reduction of expenses. Pittington
only objects to the magistrate judge’s 35% reduction of the attorney fee award attributable
to the “limited success” at trial. Pittington argues that this reduction is not warranted given
his successful jury verdict. He also argues that the reduction is not warranted if he prevails
on his appeal to the Sixth Circuit of the court’s order denying his motion for a new trial on
the issue of damages.

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As noted by the magistrate judge, the reasonableness of the hours expended and the
rate charged therefore is determined by considering twelve factors: (1) time and labor
required; (2) the novelty and difficulty of the questions presented; (3) the skill needed to
perform the legal service properly; (4) the preclusion of employment by the attorney due
to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent;
(7) time and 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.” Isabel v. City
of Memphis, 404 F.3d 404, 415 (6th Cir. 2005). The most critical factor in determining the
reasonableness of a fee award is the degree of success obtained. Id.
The magistrate found that, although Pittington succeeded on this Title VII and
THRA claims, he was only awarded back pay in the total amount of $10,000.00. The jury
did not award Pittington any front pay, compensatory damages, non-pecuniary damages,
or punitive damages. In addition, the court directed a verdict in favor of defendant on his
ADA claim. Based on these results, the magistrate judge found that Pittington was not
entitled to the full amount of attorney fees requested. The court agrees.
Case law is clear that a plaintiff’s degree of success is a factor to be considered in
determining a fee award. Id. at 415-16. Pittington’s argument ignores the fact that he was
awarded only one-fourth of the back pay he claimed. The jury failed to award him any front
pay, compensatory damages, or punitive damages. In ruling on Pittington’s motion for
new trial on the issue of damages, the court found it was not unreasonable to assume the
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jury took the lack of specific evidence and Pittington’s extended periods of unemployment
into consideration in determining the amount of back pay awarded. In light of the jury’s
verdict, the court agrees with the magistrate judge that to award the full amount requested
(approximately sixteen times the damages awarded) would be excessive considering
Pittington’s limited success on the merits of his claim.
The court will not entertain the parties’ arguments relating to settlement offers and
negotiations. A plaintiff’s settlement strategy or settlement offers are not identified as one
of the twelve factors to be considered in the determination of a reasonable fee award. See
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Finally, Pittington’s appeal of the court’s order affirming the jury award of damages
has no bearing on the determination of fees. The factors considered by the court in making
a fee determination do not include the possibility of a successful appeal by a plaintiff
resulting in an increased damage award. Isabel, 404 F.3d at 416. Pittington has cited no
authority allowing the court to award fees based on what might happen in the appellate
court. Lastly, the court found Pittington’s arguments for an increased damages award to
be without merit.
After a careful review of the record, the Court is in complete agreement with the
magistrate judge’s recommendation that Pittington’s motion for attorney fees and litigation
expenses be reduced. Accordingly, the court ACCEPTS IN WHOLE the Report and
Recommendation under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). It is ORDERED,
for the reasons stated in the Report and Recommendation, which the court adopts and
incorporates into its ruling, that Pittington’s objections to the R&R [R. 98] are
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OVERRULED; his motion for attorney fees and expenses [R. 78] is GRANTED to the
extent that Pittington is awarded attorney fees of $98,526.67 and litigation expenses of
$3,330.10. In all other respects the motion is DENIED.
Enter:

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UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
A S
T C

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