Rice v. Autumn Assisted Living Partners, Inc.

Filing 97

REPORT AND RECOMMENDATION: Presently pending is a motion for attorneys' fees (Docket Entry 89) filed by the Plaintiff's counsel. The matter was referred to me (Docket Entry 93) by Judge Campbell. No opposition to the motion has been filed . Inasmuch as this motion may be considered dispositive I will enter a report and recommendation rather than an order. For the reasons stated below, I recommend that the motion be granted. Signed by Magistrate Judge Joe Brown on 12/13/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
JAMES K. RICE,

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Plaintiff
v.
AUTUMN ASSISTED LIVING
PARTNERS, INC.,
Defendant
TO:

No. 3:15-0398
Chief Judge Sharp/Brown
Jury Demand

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Presently pending is a motion for attorneys’ fees (Docket

Entry 89) filed by the Plaintiff’s counsel. The matter was referred
to me (Docket Entry 93) by Judge Campbell. No opposition to the
motion has been filed. Inasmuch as this motion may be considered
dispositive I will enter a report and recommendation rather than an
order. For the reasons stated below, I recommend that the motion be
granted.
BACKGROUND
The theories of the parties were set out in the original
case management order (Docket Entry 25) filed on July 22, 2015, by
Magistrate

Judge

Knowles.

The

Plaintiff

was

employed

by

the

Metropolitan Government as a custodian at the J.P. Knowles assisted
living center in Nashville. He suffered a work-related injury while
employed there and required surgery on his back. He was finally
released after approximately 10 months to return to work with a
lifting restriction of no more than 20 pounds.

On January 1, 2014, the Defendant entered into a contract
to lease Knowles from Metro. Their lease included the maintenance
department where Plaintiff worked. The Plaintiff alleged that the
Defendant failed to consider him for any position with or without
reasonable accommodation despite the fact that he could perform
work with a reasonable accommodation.
The Defendant contended that they did not hire the
Plaintiff because he could not perform an essential function of his
job without or without accommodations because he was not able to
lift more than 20 pounds and the position they had available
required an ability to lift up to 50 pounds. The matter was tried
with a jury and on October 27, 2016, the jury rendered a verdict in
favor of Plaintiff against Autumn (Docket Entry 86). The jury
awarded the Plaintiff $38,206.98 in back pay and $20,000 for mental
and emotional suffering. The jury declined to award punitive
damages.
The Plaintiff’s counsel promptly filed a motion for
attorneys’ fees (Docket Entry 89) in the amount of $59,600. In
support of the motion, Mr. Cooper, Plaintiff’s counsel, submitted
his billing records and hourly rates to other attorneys for an
opinion as to their reasonableness. Mr. Wade Cowan, an experienced
attorney in this type of litigation, opined that the hourly rate
and amount of work was reasonable for a case of this nature (Docket
Entry 89-1), as did Mr. Jerry Gonzales (Docket Entry 91). Mr.

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Cooper’s affidavit was attached at Docket Entry 89-2, along with a
copy of billing records for the case (Docket Entry 89-3).
There was no response in opposition to the motion for
attorneys’ fees. There matter is therefore ready for decision.
LEGAL DISCUSSION
I have reviewed the declarations and the fee application
itself for reasonableness. While the range of $400 per hour is at
the top of reasonableness, given the supporting affidavits and the
fact

that

the

Defendant

has

not

provided

any

countervailing

evidence, I will adopt the $400 per hour rate as a reasonable rate
and

the

149

hours

as

a

reasonable

amount

of

time

spent

in

litigating this matter to a successful jury verdict. I further
agree with the legal memorandum submitted in support of the motion
(Docket Entry 90), which cites clear authority for the award of
attorneys’ fees under 42 U.S.C. § 1988(b).
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion for attorneys’ fees be granted in the
amount of $59,600.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.

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Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 12th day of December, 2016.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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