Bland v. Fairfax County Virginia
Filing
147
MEMORANDUM OPINION re Plaintiff Mary Getts Bland's Petition for Award of Costs Including Reasonable Attorneys' Fees. Signed by District Judge James C. Cacheris on 11/7/2011. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MARY GETTS BLAND
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FAIRFAX COUNTY,
Defendant.
1:10cv1030 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff Mary
Getts Bland’s Petition for Award of Costs Including Reasonable
Attorneys’ Fees (the Petition).
For the following reasons, the
Court will grant fees and costs in the amount of $306,705.69.
I.
A.
Background
Factual Background
This case concerns incidents of sexual harassment by a
male Fairfax County firefighter in the Fairfax County Fire and
Rescue Department against a female firefighter.
Plaintiff
alleged that by allowing Lieutenant Timothy Young to harass her,
the Defendant Fairfax County, Virginia (the County) violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e to e17 (Title VII).
Plaintiff prevailed in her Title
VII hostile work environment claim, as a jury awarded her
1
$250,000 in damages [Dkt. 75], which the Court later remitted to
$50,000 [Dkt. 126].
Plaintiff now seeks to recover attorneys’
fees and costs pursuant to Title VII.
B.
[Dkt. 134.]
Procedural Background
Plaintiff filed suit against the County on September
15, 2010.
[Dkt 1.]
Plaintiff originally asserted three claims,
but on May 3, 2011, the Court granted Defendant’s Motion for
Summary Judgment [Dkt. 8] with respect to Plaintiff’s claims
that the County was liable for violating the Fourteenth
Amendment’s Equal Protection Clause under 42 U.S.C. § 1983 and
that the County was liable for retaliation under Title VII and
the Equal Protection Clause.
[Dkt. 35.]
The Court, however,
denied the Motion for Summary Judgment with respect to
Plaintiff’s Title VII hostile work environment claim involving
sexual harassment.
[Dkt. 35.]
Jury trial began on May 23, 2011.
On May 24, 2011,
after the close of Plaintiff’s case, Defendant orally made a
motion to dismiss Plaintiff’s case as time-barred, after which
Defendant filed a corresponding written motion (the Motion to
Dismiss as Time-Barred).
[Dkt. 70.]
The Court took the motion
under advisement, permitting the trial to be completed so that
the record would be complete.
On May 25, 2011, the jury returned a verdict in favor
of Plaintiff in the amount of $250,000, and the Clerk of the
2
Court entered a judgment in favor of Plaintiff.
[Dkt. 77.]
After the jury was discharged, the Court addressed the Motion to
Dismiss as Time-Barred and the parties request for further
briefing and a hearing on the issue.
(Jury Instructions Partial
Tr. [Dkt. 123] (J. I. Tr.) 26:13-27:21.)
At that time,
Plaintiff’s counsel orally requested an extension of time to
file a request for attorneys’ fees.
(J. I. Tr. 27:20-28:17.)
The Court stated that it would set a date to file such a request
after it heard argument on the Motion to Dismiss as Time-Barred
and determined whether the judgment would stand.
(J. I. Tr.
27:20-28:17.)
With leave of the Court, both Plaintiff, [Dkt. 72],
and Defendant, [Dkt. 70], filed written briefs on the timebarred issue.
[Dkt. 78.]
Defendant filed further briefing on June 3, 2011.
There, Defendant went beyond the time-barred issue
and argued, for the first time in this case, that the Court
lacked jurisdiction over the matter due to Plaintiff’s failure
to allege exhaustion of her administrative remedies.
Mem. [Dkt. 78] at 2-3.)
(D. Supp.
Because Defendant had not previously
raised this issue at any point, and had not done so in its midtrial Motion to Dismiss as Time-Barred, the Court ordered
Plaintiff to respond and Defendant to reply.
[Dkt. 79.]
Plaintiff, [Dkt. 80], and Defendant, [Dkt. 85], did so.
The
Court held oral argument on June 17, 2011, and took the issue
3
under advisement.
[Dkt. 91.]
On June 29, 2011, the Court
denied the Motion to Dismiss as Time-Barred both as to the timebarred issue and jurisdictional issue.
[Dkt. 117.]
Prior to that denial, on June 22, 2011, Defendant
filed a Motion for Judgment as a Matter of Law, Motion for New
Trial, and Motion to Alter or Amend the Judgment.
[Dkt. 102.]
On August 3, 2011, the Court denied those motions, but granted
Defendants alternative motion for remittitur and remitted
Plaintiff’s jury award to $50,000.
[Dkt. 126.]
The Court
directed Plaintiff to accept or reject the remittitur within ten
days and stated that if the remittitur is not accepted, “the
Court will stay the new trial pending any appeal by the parties.
. . .”
[Dkt. 126.]
On August 12, 2011, Plaintiff filed a Motion for
Reconsideration [Dkt. 127], which the Court denied on August 24,
2011 [Dkt. 130].
This time, the Court directed Plaintiff to
accept or reject the Court’s order of remittitur by August 26,
2011.
[Dkt. 130.]
On August 26, 2011, Plaintiff accepted the
order of remittitur.
[Dkt. 131.]
On September 7, 2011, the
Court in a written order (the Counsel Fees Order) stated:
Plaintiff having accepted the remitter in this case and
therefore it is appropriate to award counsel fees to
plaintiff, it is accordingly ORDERED:
(1)
That the plaintiff shall file her petition for counsel
fees within fifteen (15) days of the date of this
order.
4
(2)
Defendant shall file its opposition within thirty (30)
days of the date of this order.
(3) Any rebuttal briefs shall be filed within thirty five
(35) days of the date of this order . . . .
[Dkt. 132.]
On September 22, 2011, Plaintiff filed the Petition
for Award of Costs Including Reasonable Attorneys’ Fees [Dkt.
133], which was corrected on September 23, 2011 [Dkt. 134].
On
October 7, 2011, Defendant filed a Reply [Dkt. 135] and on
October 13, 2011, Plaintiff filed a Rebuttal [Dkt. 139].
On
October 26, 2011, Defendant filed a Supplemental Opposition
[Dkt. 143] and Plaintiff filed a Supplemental Memorandum [Dkt.
144].
On October 31, 2011, Plaintiff filed a Second Supplement
to the Petition.
[Dkt. 146.]
Plaintiff’s Petition is before the Court.
II.
Standard of Review
A. Attorneys’ Fees Under the Civil Rights Act
The Civil Rights Attorney’s Fees Awards Act provides
that in federal civil rights actions, “the court, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs
. . . .”
42 U.S.C. § 1988(b).
“As the Supreme Court has
recognized, ‘the purpose of § 1988 is to ensure effective access
to the judicial process for persons with civil rights
grievances.’”
Daly v. Hill, 790 F.2d 1071, 1076 (4th Cir. 1986)
5
(quoting Hensley v. Eckerhart, 461 U.S. 424, 429 (1983))
(internal quotations omitted).
The Civil Rights Attorney’s Fees Awards Act
specifically states that such fees are permitted in “any action
or proceeding to enforce provisions of . . . title VI of the
Civil Rights Act of 1964.”
42 U.S.C. § 1988.
And, Title VII of
the Civil Rights Act states that the court may allow the
prevailing party a reasonable attorneys’ fee as part of the
costs.
See 42 U.S.C. 2000e-5(k)(2006).
The Fourth Circuit has
noted, “[t]he standard for granting attorney’s fees under 42
U.S.C. § 1988 is identical to that under Title VII.”
Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1359 n.10 (4th Cir.
1995)(citing Hensley, 461 U.S. at 433 n.7).
Plaintiff petitions
this Court for an award of the costs of bringing and prosecuting
this civil action, including reasonable attorneys’ fees,
pursuant to Title VII.
B. Attorneys’ Fees Generally
The party requesting fees bears the burden of
demonstrating the reasonableness of what it seeks to recover.
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990); Cook v.
Andrews, 7 F. Supp. 2d 733, 736 (E.D. Va. 1998).
The fee
applicant bears the burden of establishing by clear and
convincing evidence the amount of a reasonable fee in the
circumstances.
See Hensley, 461 U.S. at 433.
6
The requesting party does so by producing evidence,
such as the requesting attorneys’ own affidavits.
“‘In addition
to the attorney’s own affidavits, [however,] the fee applicant
must produce satisfactory specific evidence of the prevailing
market rates in the relevant community for the type of work for
which he seeks an award.’”
Robinson v. Equifax Info. Servs.,
LLC, 560 F.3d 235, 244 (4th Cir. 2009) (quoting Plyler, 902 F.2d
at 277).
“Examples of what constitutes satisfactory specific
evidence ‘sufficient to verify the prevailing market rates are
affidavits of other local lawyers who are familiar both with the
skills of the fee applicants and more generally with the type of
work in the relevant community.’”
Textron Financial Corp. v.
AIC of Manassas, Inc., No. 1:09-cv-1202, 2010 WL 2928789, at *4
(E.D. Va. July 23, 2010) (quoting Robinson, 560 F.3d at 245);
see also Plyler, 902 F.2d at 278 (“[A]ffidavits testifying to
[the fee applicants’] own rates, experience and skills as well
as affidavits of South Carolina lawyers who were familiar both
with the skills of some of the [fee] applicants and more
generally with civil rights litigation in South Carolina . . .
[were] sufficient evidence of the prevailing market rates.”)
“The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.”
Hensley, 461 U.S. at 433; Rum Creek Coal Sales, Inc. v.
7
Caperton, 31 F.3d 169, 174 (4th Cir. 1994).
The product of the
reasonable fee and reasonable rate is referred to as the
“lodestar amount.”
See Daly v. Hill, 790 F.2d at 1076 n.2.
In determining “what constitutes a ‘reasonable’ number
of hours and rate . . . a district court’s discretion should be
guided by the . . . twelve factors” adopted from Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Robinson, 560 F.3d at 243-44 (citing Barber v. Kimbrell's Inc.,
577 F.2d 216, 226 n.28 (4th Cir. 1978)).
Those Johnson/Kimbrell’s factors are: (1) the time and
labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney's opportunity costs in
pressing the instant litigation; (5) the customary fee for like
work; (6) the attorney's expectations at the outset of the
litigation; (7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature and length of
the professional relationship between attorney and client; and
(12) attorneys’ fees awards in similar cases.
Id.
The Court
need not address all twelve factors independently, because “such
considerations are usually subsumed within the initial
8
calculation of hours reasonably expended at a reasonable hourly
rate.”
Freeman v. Potter, No. 7:04cv276, 2006 WL 2631722, at *2
(W.D. Va. 2006) (citing Hensley, 461 U.S. at 434 n.9).
“After determining the lodestar figure, the court then
should subtract fees for hours spent on unsuccessful claims
unrelated to successful ones. . . . [O]nce the court has
subtracted the fees incurred for unsuccessful, unrelated claims,
it then awards some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.”
Robinson, 560 F.3d at 244 (internal quotations and citations
omitted).
Because the “degree of success obtained by the
plaintiff is the ‘most critical factor’ in determining the
reasonableness of a fee award, the district court ‘may simply
reduce the award to account for the limited success.’”
Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667, 675 (E.D.
Va. 2004) (quoting Hensley, 461 U.S. at 436-37).
There is no
“precise formula” for making this reduction to the lodestar
amount; however, the court may either “reduce the overall award”
or “identify specific hours that should be eliminated.”
Hensley, 461 U.S. at 436-37.
Attorneys’ fees award decisions are within the
discretion of the district court and are reviewed for abuse of
discretion.
See McDonnell v. Miller Oil Co., 134 F.3d 638, 640
9
(4th Cir. 1998).
Within this framework, the Court will evaluate
the Petition.
III. Analysis
A. Timely Filing
As a threshold issue, Defendant argues that
Plaintiff’s Petition is not timely under Federal Rule of Civil
Procedure 54 and Local Rule 54(d)(1) and therefore must be
denied.
(D. Reply [Dkt. 135] at 1.)
Turning first to the
federal rule, Federal Rule of Civil Procedure 54(d)(2)(B)(i)
states “[u]nless a statute or a court order provides otherwise,
the motion [for attorneys’ fees] must be filed no later than 14
days after entry of judgment.”
Defendant argues that the 14
days runs from the date of the jury verdict, May 25, 2011.
As a
result, Defendant submits that Plaintiff’s filing on September
23, 2011, is not timely.
(D. Reply at 2.)
Defendant, however, overlooks Federal Rule of Civil
Procedure 6(b)(1)(A), which states, “[w]hen an act may or must
be done within a specified time, the court may, for good cause,
extend the time: with or without motion or notice if the court
acts, or if a request is made, before the original time or its
extension expires; . . . .”
The Fourth Circuit has stated that
the filing of a fee petition under Federal Rule 54(d)(2)(B)
“plainly constitutes an act ‘required . . . to be done . . .
within a specified time’ under Federal Rule 6(b). . . .”
10
Gaskins v. BFI Waste Services, LLC, 281 F. App’x 255, 259, (4th
Cir. 2008).
Thus, under Federal Rule 6(b), upon finding good
cause, a court may extend the 14 day window required by Federal
Rule 54(d), as long as the court does so or a request to do so
is made within 14 days after the entry of judgment.
And, if a
court chooses to do so, Federal Rule 54(d) requires it to, at
some point, issue an order.
In this case, Mr. Shapiro requested that the Court
extend the time on May 25, 2011, the day the jury returned the
verdict and thus well before the 14 day window provided by
Federal Rule 54(d) expired.1
(J. I. Tr. 27:22-28:25.)
The Court
did not grant the request at the time, as it stated that upon
considering the Defendant’s Motion to Dismiss as Time-Barred,
the Court would set the timeline for counsel fees when it
determined whether the judgment would stand.
As a result, both
parties were on notice that the time for filing an attorneys’
fees request was being extended and neither party objected.
Thus, in accordance with Federal Rule 6(b)(1)(A), a
request was made before the original window of 14 days expired
1
This Court declines to address whether the 14 days runs from the entry of a
jury verdict or from a later point in time, as counsel’s request for an
extension was made at the earliest relevant point in time. Defendant argues
that under Jackson v. Beard, 8282 F.2d 1077 (4th Cir. 1987), the 14 days runs
from the entry of the jury verdict. But the court in Jackson v. Beard
focused on a local rule in the District of Maryland and the court’s holding
was called into question by Cross v. Bragg, 329 F. App’x 443 (4th Cir. 2009).
Furthermore, the Fourth Circuit in Gaskins, 281 F. App’x at 256-57,
specifically addressed Rule 54(d)(2)(B) and indicated that the 14 days ran
from the district court’s memorandum opinion and order ruling on a motion for
a judgment as a matter of law and a new trial nisi remittitur.
11
and so the Court could extend the time to file a request for
attorneys’ fees.2
And, in accordance with Federal Rule
54(d)(2)(B)(i), the Court issued the Counsel Fees Order on
September 7, 2011, stating that the Plaintiff had fifteen days
to file her petition for counsel fees.
Plaintiff complied when
she filed a Petition for Award of Costs Including Reasonable
Attorneys’ Fees on September 22, 2011.
As a result, this Court
finds that Plaintiff’s Petition is timely.
Regarding costs, Local Rule 54(d)(1) states that
“[t]he party entitled to costs shall file a bill of costs as
provided in 28 U.S.C. §§ 1920 and 1924 within eleven (11) days
from the entry of judgment, unless such time is extended by
order of the Court.”
As the Court explains below, Plaintiff’s
Petition is brought under Title VII of the Civil Rights Act, not
2
The Court’s statement that it would delay setting a timeline for fees also
acted as an extension of time under Federal Rule 6. That rule permits an
extension if a request is made or if the court acts before the 14 day window
expires. Thus, there is an alternative avenue for finding the Petition
timely. Defendant argues that the Court’s statement does not amount to an
order extending time under Federal Rule 54. (D. Supp. Opp. [Dkt. 143] at 12.) Rule 6 does not, however, require an order within the 14 day window and
the Court complied with Rule 54 when it issued the Counsel Fees Order on
September 7, 2011. Defendant further argues that the Court can only speak
through orders and judgments and cites New Horizon of NY, LLC v. Jacobs, 231
F.3d 143, 152-52 (4th Cir. 2000), Murdaugh Volkswagon v. First National Bank
of SC, 741 F.2d 41, 44 (4th Cir. 1984), and Bell v. Thompson, 545 U.S. 794,
805 (2005) in support. The first two cases, however, stand for the
proposition that a court’s comments potentially conflicting with a final
order or judgment, do not alter the plain meaning of the order or judgment.
And, the Supreme Court in Bell v. Thompson, addressed the question of whether
inaction by the Fourth Circuit was sufficient to stay a mandate regarding an
execution. 545 U.S. at 804. In that case, the Court noted that the fact
that the Fourth Circuit “had given no indication that it might be revisiting
its earlier decision” was “important.” Id. Here the Court’s statement
extending the time to file a petition firmly supports its Order on Counsel
Fees and thus Defendant’s cannot claim a conflict between judicial
pronouncements or inaction.
12
under 28 U.S.C. §§ 1920 or 1924.
Upon finding that this Court
has not otherwise ordered the parties to file a bill of costs
pursuant to Local Rule 54(d)(1), the Court finds that Plaintiff
is not bound by the rule.3
Thus, Plaintiff’s Petition for Costs
Including Reasonable Attorneys’ Fees is timely.
B. Attorney Fee Calculation
The Supreme Court defines a “prevailing party” as “one
whose lawsuit has effected a ‘material alteration of the legal
relationship of the parties.’”
Buckhannon Board and Care Home,
Inc. v. W. Va. Dep't of Health and Human Servs., 532 U.S. 598,
604-05 (2001) (quoting Tex. State Teachers Ass'n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)).
This Court
finds that the jury verdict materially altered the legal
relationship between the parties and that Plaintiff is thus the
“prevailing party” in a sex discrimination suit under Title VII.
Plaintiff seeks $302,418.00 in attorneys’ fees.
[Dkt. 134] at 4.)
(Pet.
In support, Plaintiff provides a summary of
attorneys’ fees that includes an itemized statement of all tasks
performed and the amount of time billed for each.
137-1, 144-1, 146-1.]
[Dkts. 134-5,
As additional support, Plaintiff submits
the affidavits of its attorney, Ellen K. Renaud and local
3
Even if Local Rule 54(d)(1) were applicable, this Court extended time to
fill a request for costs with the order on September 7, 2011. And to the
extent that Federal Rule of Civil Procedure 6 applies to Local Rule 54(d)(1),
counsel requested an extension of time to file within the 11 day window, as
the request was made the day the jury returned its verdict.
13
attorney, Zachary A. Kitts, attesting to the reasonableness of
the fees incurred.
[Dkts. 134-1, 134-2.]
In opposition, Defendant argues that the time and
labor expended is unreasonable and that Plaintiff has not
produced sufficient evidence supporting the rates charged.
Reply at 12-22.)
Defendant also argues that given counsels’
experience the total hours appear excessive.
23.)
(D.
(D. Reply at 22-
Finally, Defendant argues that there is nothing novel in
this case and the skill required was that of a competent trial
attorney.
i.
(D. Reply at 23.)
Reasonableness of the Number of Hours
The Court first must determine whether Plaintiff met
her burden of establishing the reasonableness of the number of
hours and billing rate for which she seeks recovery.
The Court
notes that it was mindful of Plaintiff’s duty to exercise
billing judgment and paid careful attention to identify hours
that appear excessive, redundant, or unnecessary.
See Hensley,
461 U.S. at 437 (“The applicant should exercise ‘billing
judgment’ with respect to hours worked.”).
With these
considerations in mind, the Court will analyze the
reasonableness of the hours under each of the Johnson/Kimbrell’s
factors.
a)
Time and Labor Expended
14
The first Johnson/Kimbrell’s factor relates to the
time and labor required in the case.
$302,418.00 in attorneys’ fees.
Plaintiff seeks
In support, Plaintiff provides
timesheet entries of the number of hours billed, by what
attorneys, for what hourly charge, and the nature of the work
completed.
[Dkts. 134-5, 137-1, 144-1, 146-1.]
Plaintiff also
provided the following summary, which has been updated to
include changes that are the result of initial reporting
discrepancies and that are agreed upon by the parties:
Attorney
Ellen Renaud
Richard Swick
David Shapiro
J. Cathryne Watson
Totals
Hours
Rate
$255.00
$300.00
$330.00
$335.00
$400.00
$400.00
$440.00
$465.00
$475.00
$475.00
$495.00
$495.00
$230.00
16
2.2
16.4
492.54
9.1
23.65
3.8
3.8
79.76
122.2
.9
1.77
59.0
805.6
4
Fee
$4,080.00
$660.00
$5,412.00
$164,987.50
$3,640.00
$9,440.00
$1,672.00
$1,767.00
$37,857.50
$58.045.00
$445.50
$841.50
$13,570.00
$302.418.00
There was a reporting mistake of 3.7 hours on the time that Counsel Renaud
spent on the Riley-Hall deposition. (D. Reply at 19; P. Rebuttal [Dkt. 139]
at 7.) Thus, counsels’ original submission of 496.2 hours is reduced by 3.7
hours.
5
Reflects the addition of time spent for work in support of the Petition.
[Dkts. 144-1, 146-1.]
6
There was a reporting mistake of 14.7 hours on the time that Counsel Swick
should have deducted from lost claims. Thus, counsels’ original submission
of 94.4 hours is reduced by 14.7 hours. (D. Reply at 15; P. Rebuttal at 11.)
The Court finds that there was no reporting mistake regarding the hours
billed for Caussin’s deposition. (See P. Rebuttal at 8.)
7
Reflects the addition of time spent for work in support of the Petition.
[Dkt. 146-1.]
15
Additionally, Plaintiff submits an affidavit from its
counsel Ms. Renaud asserting that the hours in this case are
reasonable, because the case “was complicated by the vastness of
the written and transcribed records as well as the reluctance of
current employees of the County to come forward.”
[Dkt. 134-1] ¶ 22.)
(Renaud Aff.
And, because the case was “hard-fought,”
Defendant filed eleven contested motions.
(Renaud Aff. ¶ 23.)
Finally, Plaintiff notes that it voluntarily excluded a portion
of the time spent on Plaintiff’s unsuccessful claims in an
effort to “exercise[] considerable billing judgment.”
(P.
Rebuttal [Dkt. 139] at 8-11.)
Defendant makes a number of specific requests for a
reduction in the number of hours that Plaintiff submitted.
First, Defendant argues that 23.3 hours spent addressing
Defendant’s motion to exclude Captain Eschelman’s testimony and
to exclude evidence of unrelated incidents of sexual harassment
should not be entirely taxable to the county.
19.)
(D. Reply at 17-
Yet, that testimony was relevant to Plaintiff’s hostile
work environment claim, and regarding the particular motion,
Plaintiff prevailed in part since Captain Eschelman was allowed
to testify.
That Plaintiff did not prevail on the other part of
the motion does not mean Plaintiff should be required to pay for
half of the motion.
See Jaffee v. Redmond, 142 F.3d 409, 414
(7th Cir. 1998)(noting “a losing argument in support of a
16
successful claim for relief is fully compensable time”); Cnty.
Sch. Bd. v. A.L., No. 4:03cv174, 2007 U.S. Dist. LEXIS 16395, at
*37-38 (E.D. Va. Mar. 6, 2007)(“While the Court must consider
the overall result of the litigation in terms of the moving
party’s success, no authority exists which persuades the Court
to reduce the fee award for reasonable, but unsuccessful tactics
within the litigation. The Court’s inquiry is simply whether the
time was reasonably expended.”).
Defendant also argues that hours spent on a motion to
limit damages and a motion to quash witness subpoenas should be
denied, arguing that they resulted from poor decisions by
Plaintiff and thus were in essence the Plaintiff’s fault.
Reply at 16-17.)
(D.
Plaintiff counters that Defendant’s strategy
in pursuing the motion to limit damages was flawed, as the rules
did not require a computation.
(P. Rebuttal at 12.)
Plaintiff
also argues that the subpoenas were necessary because Defendant
had not agreed to produce its employees at trial in exchange for
Plaintiff’s cooperation with scheduling of their testimony.
Rebuttal at 13.)
(P.
This Court recognizes that the trial in this
case involved heavy motions practice and relatively combative
litigation strategies.
As a result, the Court finds that
Plaintiff’s hours related to these motions are reasonable.
Defendant also makes two sets of arguments regarding a
number of depositions in this case.
17
First, the County argues
that time spent on the depositions (or on deposition
transcripts) of particular individuals should be excluded.
Specifically Defendant argues that time spent on Varholy,
Bourjaly, Morton, and McKernan should be excluded because they
were not necessary to the case (D. Reply at 20); that time spent
on Mohler, Williams, Varholy, and Brennan should not be allowed
because their testimony was excluded at trial (D. Reply at 2021); that time spent on Dodwell’s testimony should be excluded
because it was related solely to Bland’s retaliation claim; and
that the time spent of the depositions of Riley-Hall, Larson,
Clarke, Thompson, and Butler should be excluded because they
were deposed for a related case:
Bailey v. Fairfax Cnty. Va.,
No. 1:10-CV-1031, 2010 U.S. Dist. LEXIS 135512 (E.D. Va. Dec.
21, 2010) (D. Reply at 20).
Second, the County argues that
“Bland’s counsel is not entitled for fees to cover the costs of
two attorneys at a deposition where only one attorney is
necessary.”
(D. Reply at 20.)
Turning first to the depositions of Riley-Hall,
Larson, Clarke, Thompson, and Butler, Plaintiff argues that
these witnesses, who appear to be related to the Bailey case,
are included because they were relevant to Plaintiff’s § 1983
claim.
(P. Rebuttal 5-9.)
As a result, the Court will consider
the fees associated with those depositions, and the deposition
of Dodwell, when it considers unsuccessful, unrelated claims.
18
As to time spent on the remaining depositions, the
Fourth Circuit has held that costs of a deposition should be
awarded “when the taking of a deposition is reasonably necessary
at the time of its taking.”
Jop v. City of Hampton, 163 F.R.D.
486, 488 (E.D. Va. Oct. 20, 1995) (emphasis added) (quoting
LaVay Corp. v. Dominion Fed. Savings & Loan, 830 F.2d 522, 528
(4th Cir. 1987)).
“In order for the deposition to be necessary,
it needs only to be ‘relevant and material’ for the preparation
in the litigation.”
Signature Flight Support Corp. v. Landow
Aviation L.P., 730 F. Supp. 2d 513, 531 (E.D. Va. 2010) (quoting
Ford v. Zalco Realty, Inc., 708 F. Supp. 2d 558, 562 (E.D. Va.
2010)).
Additionally even if it is not used at trial, “[a]
deposition taken within the proper bounds of discovery” is
normally “deemed to be ‘necessarily obtained for use in the
case.’”
Id. (quoting Cofield v. Crumpler, 179 F.R.D. 510, 518
(E.D. Va. 1998)).
The Court finds that the depositions of the
remaining contested witnesses were all relevant and material for
the preparation in this litigation.
As to the appropriate number of attorneys attending a
deposition, this Court is “sensitive to the need to avoid use of
multiple counsel for tasks where such use is not justified by
the contributions of each attorney.”
F.3d at 180.
Rum Creek Coal Sales, 31
The Court recognizes that in some instances it may
be appropriate for two attorneys to attend important
19
depositions, as separate contributions can be made on
questioning and credibility assessment.
Here Plaintiff used two
attorneys at the depositions of the five purportedly most
significant witnesses (O’Conner, Caussin, Edwards, Mastin, and
Riley-Hall).
(P. Rebuttal at 8.)
The Court does not believe
that it was reasonable, in relation to this case, for two
lawyers to attend the deposition of Riley-Hall.
As a result,
the Court will deduct the 4.2 hours Mr. Swick spent on the
deposition of Riley-Hall on February 7, 2011.
will be deducted from Mr. Swick’s fee.
Thus, $1,995.00
The Court otherwise
finds that the time entries related to motions and depositions
do not appear excessive, redundant, or unnecessary and no
reduction is required under this factor.
Regarding time not specifically addressed above, the
Court finds that the hours associated with trying the case are
reasonable.
The hours spent preparing the petition for
attorneys’ fees, however, are not.
The Court recognizes that
time spent defending entitlement to attorneys’ fees is
compensable in civil rights cases.
at 1080.
See Daly v. Hill, 790 F.2d
But in this case, Plaintiff requests 23.6 hours for
Ms. Renaud to prepare the Petition and attend oral argument for
attorneys’ fees, and those hours are in addition to Mr.
Shapiro’s.
The Court finds that given Ms. Renaud’s familiarity
with the case, a fifty percent reduction in the hours she spent
20
in support of the Petition is appropriate.
Therefore, 11.8
hours, or $4,720.00, will be deducted from Ms. Renaud’s fee.
b)
Novelty and Difficulty of Questions Raised;
Skill Required; Experience, Reputation, and
Ability of Attorney
Regarding the novelty and difficulty of the questions
raised, Defendant argues that there is nothing legally novel in
this case and that it is fundamentally a factual dispute.
Reply at 23.)
(D.
Defendant asserts that the skill required to
properly perform the legal services was that of a competent
trial attorney.
(D. Reply at 23.)
And, Defendant argues that
the experience, reputation, and ability of Plaintiff’s counsel
indicate that they should have been able to prepare for various
motions in this case in substantially less time.
(D. Reply at
22-23.)
Plaintiff notes that the “case was rather straightforward,” but argues that it was “complicated by the vastness of
the written and transcribed records as well as the reluctance of
current employees of the County to come forward.”
¶ 22.)
(Renaud Aff.
Plaintiff’s counsel Ms. Renaud states that she “was
informed of several women who experienced harassment by male
firefighters” and after developing leads was “able to support
Ms. Bland’s case with evidence that two other women experienced
similar conduct from the Lieutenant.”
(Renaud Aff. ¶ 8.)
And
Plaintiff argues that “[t]he case was also hard-fought, even for
21
cases of this type” and that the “County was reluctant to
produce discovery and made scheduling depositions difficult.”
(Renaud Aff. ¶ 23.)
While this case did not present a novel legal
question, it involved difficult factual issues that required
fairly voluminous records and testimony.
At the time of the
filing of the petition for attorneys’ fees, the docket contained
132 entries.
Upon review of the time counsel spent on motions,
the Court finds that the hours charged by counsel are reasonable
in light of the difficulty of the case, the skills required to
present the case, and the ability of Plaintiff’s counsel.
Therefore, these factors will not ultimately affect the Court’s
fee determination.
c)
Reasonable Rate
The prevailing party’s requested hourly rates must be
reasonable.
Rum Creek Coal Sales, 31 F.3d at 175 (citing
Hensley, 461 U.S. at 433).
The determination of the
reasonableness of given rates is a “fact-intensive [one] and is
best guided by what attorneys earn from paying clients for
similar services in similar circumstances.”
Stenson, 465 U.S. 886, 895 n.11 (1984)).
Id. (citing Blum v.
To carry this burden,
a plaintiff can establish the market rate “through affidavits
reciting the precise fees that counsel with similar
qualifications have received in comparable cases; information
22
concerning recent fee awards by courts in comparable cases; and
specific evidence of counsel’s actual billing practice or other
evidence of the actual rates which counsel can command in the
market.”
Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987)
(citations omitted).
This evidence must be submitted “[i]n
addition to the attorney’s own affidavits.”
Plyler v. Evatt,
902 F.2d 273, 277 (4th Cir. 1990).
Plaintiff submits that the billing rates for legal
services in this case are “all within the market rates for
attorneys of similar experience levels as established in [the]
current Laffey Matrix as updated to include 2010-2011.”
Aff. ¶ 20.)
(Renaud
There is a variety of evidence indicating that the
rates are reasonable in this case.
First, Plaintiff submits in
the affidavit of its lead counsel that the hours are the “usual
and customary rates” for attorneys working in the law firm of
Swick & Shapiro, P.C.
(Renaud Aff. ¶¶ 12, 29-30.)
Second,
Plaintiff states that the “retainer agreements between the law
firm and Ms. Bland specify that the attorneys of the firm are to
be compensated at the Laffey rate.”
(Renaud Aff. ¶ 18.)
Third, Plaintiff provides examples of a number of
cases in the Eastern District of Virginia where courts have
awarded Laffey rates in comparable situations.
See Bennett v.
Fairfax County, No. 05-250A, 2006 U.S. Dist. LEXIS 29458, (E.D.
Va. Apr. 25, 2006) (awarding counsel Ms. Renaud, Mr. Shapiro,
23
and Mr. Swick rates based on the Laffey Matrix in a race
discrimination case); Cox v. Reliance Standard Life Ins. Co.,
179 F.Supp. 2d 630, 635 (E.D. Va. 2001) (finding that rates just
at or slightly below the Laffey Matrix were reasonable in case
where attorney had practiced focused civil litigation for over
twenty-one years); Corinthian Mortg. Corp v. Choicepoint
Precision Mktg., LLC, No. 1:07cv832, 2009 U.S. Dist. LEXIS 723,
at *11-12 (E.D. Va. Jan. 5, 2009) (applying a ten percent
reduction to requested fees because it “will place all of the
rates at or slightly below the guideline rates contained in the
Laffey Matrix”).
Plaintiff also notes a case tried before this
Court, Raymond L. Tenenholtz v. Donald L. Powell, Civil Action
No. 03-14-A (E.D. Va.), where the U.S. Attorney’s Office for the
Eastern District of Virginia accepted the rates adopted under
the Laffey Matrix in settling the case.
Finally, Plaintiff
offers the declaration of a local attorney who also sets his
rates with the Laffey Matrix as a guide.
(Kitts Aff. [Dkt. 134-
2] ¶ 15.)
Defendant argues that the hourly rates charged by
attorneys in Washington, D.C. are generally higher than the
hourly rates charged in the Eastern District and that
Plaintiff’s counsel has not met her burden to establish that
Laffey rates are the “prevailing rates in the Eastern District.”
(D. Reply at 14.)
Defendant also notes a $30 discrepancy in
24
rate between the affidavit of the local attorney, Zachery A.
Kitts, and Ms. Renaud’s rate from February 2009 through December
2009.
(D. Reply at 14.)
Finally, Defendant argues that this
Court should not allow the rates requested by Mr. Swick, Mr.
Shapiro, and Ms. J. Cathryne Watson because “Bland’s counsel has
submitted nothing more than her affidavit to support [their]
hourly rates . . .”
(D. Reply at 14.)
This Court recognizes, as it has done so recently,
that it is not bound by the Laffey Matrix.
See United States ex
rel. Thyssenkrupp Safway, Inc. v. Tessa Structures, LLC, No.
1:10cv512, 2011 U.S. Dist. LEXIS 71755, at *14-25 (E.D. Va. July
5, 2011).
In this case, however, Plaintiff has provided ample
evidence to establish that the rates are reasonable.
In
addition to affidavits, Plaintiff has provided a number of
highly relevant, recent cases from the Eastern District
discussing fee awards, including a case that specifically
awarded Laffey rates to counsel Ms. Renaud, Mr. Shapiro, and Mr.
Swick.
See Bennett v. Fairfax Cnty., No. 05-250A, 2006 U.S.
Dist. LEXIS 29458 (E.D. Va. Apr. 25, 2006).
Furthermore, this
Court notes that both Mr. Shapiro and Mr. Swick have substantial
experience, as they have been practicing for 37 years, well over
the 20 years where the Laffey Matrix caps out.
Plaintiff’s
counsel also provides specific evidence on the firm’s billing
practice and notes that the retainer agreements with Plaintiff
25
specify that the attorneys at the firm are be compensated at the
Laffey rate.
See Hanzlik v. Birach, No. 1:09cv221, 2010 U.S.
Dist. LEXIS 41624, at *11-12 (E.D. Va. Apr. 28, 2010) (“The
Laffey Matrix number is particularly relevant in this case as
the retainer agreement between Mr. Kitts and Hanzlik specified
that Kitts be compensated at the Laffey rate . . .”).
A $30
discrepancy between a rate by local counsel and Ms. Renaud’s
rate for a period of time when at most 18.6 hours were charged
is not sufficient to indicate that the fees in this case are
unreasonable in light of the other evidence.
As a result, the
Court finds that the billing rates Plaintiff used to calculate
its fee request are reasonable and that no reduction is
required.
d) Attorneys’ Fees Awards in Similar Cases
Turning to the fee awards in similar case, in a race
discrimination case before the District Court for the Eastern
District of Virginia, Ms. Renaud, Mr. Shapiro, and Mr. Swick
were awarded full attorneys’ fees of just under $230,000.
Bennett, 2006 U.S. Dist. LEXIS 29458 at *18-19.8
See
In that case,
the Court did so despite having remitted the jury’s compensatory
8
At argument, counsel for Defendant argued that Bennett should be
distinguished because the court in that case awarded fees only after the
plaintiff reduced the fee request. The court in Bennett, however, very
clearly stated that the plaintiff “reduced its fee request in response to
discrepancies illuminated by the [d]efendant.” Bennett, 2006 U.S. Dist.
LEXIS 29458 at *18. The Plaintiff here has already made similar reductions.
Thus, the court’s determination to award full attorney’s fees in Bennett is
fully applicable and this Court reiterates that it weighs in favor of finding
the requested fees reasonable.
26
damage award to $50,000.
See id.
Plaintiff notes “[t]hat case
required far fewer hours than the present case because the
record was smaller, there were fewer witnesses, and the County
did not engage in a prolific pretrial motions practice as it did
in this matter.”
(Pet. at ¶ 15.)
This Court will take the
award in Bennett v. Fairfax County into consideration when
makings its final determination of attorneys’ fees, noting that
this factor weighs in favor of finding the requested fees
reasonable.
e) Opportunity Costs
In considering opportunity costs, courts often look to
the drain of resources on a firm during the litigation, the
length of the litigation, and, in some cases, the unpopularity
of the case.
See Spell v. McDaniel, 824 F.2d 1380, 1402 (4th
Cir. 1987)(noting that counsel “incurred substantial opportunity
costs in pursuing the litigation, given the drain of resources
on their four-person firm and the unpopularity of their case
within the community”); United States ex rel. Thyssenkrupp
Safway, 2011 U.S. Dist. LEXIS 71755 at *13-14 (noting that “time
spent does not seem to the Court to have been so voluminous to
have precluded other representation on the part of [] counsel”);
Walker v. Dovetails, Inc., No. 3:10cv526-HEH, 2010 U.S. Dist.
LEXIS 141635, at *15-16 (E.D. Va. Nov. 30, 2010)(noting that
since the case was resolved in one week and the costs associated
27
with discovery were avoided, the case imposed little opportunity
costs on counsel).
Turning to the attorneys’ opportunity costs in
pressing the instant litigation, Plaintiff argues that counsel
has declined three requests for representation by Fairfax County
Firefighters with employment concerns due to potential conflicts
of interest with the instant litigation.
at 1.)
(P. Supp. [Dkt. 144]
The creation of potential conflicts for a firm going
forward is inevitable in any case, and it is not the type of
opportunity cost that this Court finds pertinent to the
attorneys’ fees award.
Thus, this factor will not affect the
Court’s determination.
f) Additional Factors
The Court does not believe that the following factors
warrant special consideration in this case: the attorney's
expectations at the outset of the litigation; the time
limitations imposed by the client or circumstances; the
undesirability of the case within the legal community in which
the suit arose; or the nature and length of the professional
relationship between attorney and client.
There is no evidence
presented on any of these factors that the Court finds would
affect its attorneys’ fees award analysis.
ii.
Lodestar Amount
28
Plaintiff requested $302,418.00 in attorneys’ fees.
After taking into account the Johnson/Kimbrell’s factors as
evaluated above, the Court finds that the only appropriate
reductions are $1,995.00 for Mr. Swick’s attendance at the
deposition of Riley-Hall and $4,720.00 for Ms. Renaud’s time
spent preparing the Petition.
As a result, the Court will
reduce the fees to a lodestar amount of $295,703.00.
iii.
Unrelated Unsuccessful Claims
After calculating the lodestar figure, the “court then
should subtract fees for hours spent on unsuccessful claims
unrelated to successful ones.”
Johnson v. City of Aiken, 278
F.3d 333, 337 (4th Cir. 2002).
Plaintiff has already made
deductions for hours spent on the unsuccessful § 1983 and
retaliation claims.
Plaintiff deducted all of the time spent
researching and drafting the standard for § 1983 claims since
that was clearly extricable from the work of the Title VII
claims.
(P. Rebuttal at 10.)
And Plaintiff deducted time spent
on the depositions of witnesses that were conducted in pursuit
of Bland’s § 1983 claim.
(P. Rebuttal at 9.)
This includes all
time for the depositions of Larson, Clarke, Butler and Iacone,
but only a portion of the time for Dodwell because he had
information relevant to the retaliation claim and the County’s
liability.
(P. Rebuttal at 7.)
Plaintiff did not deduct time
for Thompson because he had information regarding inappropriate
29
comments made to female firefighters and thus his deposition was
relevant and material to Plaintiff’s hostile work environment
claim.
(P. Rebuttal at 9.)
Plaintiff also deducted half of the
time spent in discovery more closely related to the retaliation
claim, analyzing those depositions, and drafting that section of
the brief.
(P. Rebuttal at 11.)
Nonetheless, Defendant argues that many of the hours
submitted are attributable to either unsuccessful or unrelated
claims and therefore should not be included.
22.)
(D. Reply at 15-
For example, Defendant argues that at most only two thirds
of the 96 hours of unidentified time spent on the motion for
summary judgment should be allowed because Defendant prevailed
on the § 1983 and retaliation claims.
(D. Reply at 15-16.)
As
discussed above, Defendant also makes arguments about the
exclusion of fees related to the deposition of a variety of
individuals who testified regarding the other claims and/or in
related case of Bailey.
Finally, Defendant argues the hours
spent on the related Bailey case should not be allowed.
Reply at 21.)
(D.
For example, Defendant argues that time spent on
a motion to compel in that case was included and time spent
reviewing the Station 40 file was included.
(D. Reply at 21.)
Based on its careful independent review of the
timesheets and the declarations submitted by Plaintiff, the
Court finds that Plaintiff has appropriately identified and
30
deducted hours in order to makes the request for fees
reasonable.
The Court finds that no further reduction is
necessary because in this case all of Plaintiff’s claims arose
from a “common core of facts.”
See Brodziak v. Runyon, 145 F.3d
194, 197 (4th Cir. 1998) (quoting Hensley v, 4651 U.S. at 435).
At this point in the analysis, “the appropriate inquiry concerns
whether the claims on which the plaintiff prevailed are related
to those on which he did not.”
Id.
The Supreme Court explained
that “litigants in good faith may raise alternative legal
grounds for a desired outcome, and the court's rejection of or
failure to reach certain grounds is not a sufficient reason for
reducing a fee.”
Hensley, 461 U.S. at 435; see also Johnson v.
Hugo’s Skateway, 974 F.2d 1408, 1419 (4th Cir. 1992)(remanding
for reconsideration of a fee award when the district court may
have reduced the award to account for the fact that the
plaintiff prevailed on only one of three claims, when all of the
claims arose from the same operative facts and the plaintiff
achieved a sizeable verdict).
The claims here were related and
therefore, this Court will not reduce the award for
unsuccessful, unrelated claims.
iv.
Degree of Success
Finally, as noted above, “the degree of success
obtained by the plaintiff is the ‘most critical factor’ in
determining the reasonableness of a fee award.”
31
Lilienthal, 322
F. Supp. 2d at 675 (quoting Hensley, 461 U.S. at 436-437).
Here
Plaintiff originally brought three claims: an Equal Protection
claim under § 1983, an Equal Protection and Title VII claim for
retaliation, and a Title VII claim for a hostile work
environment.
Ms. Bland prevailed on her Title VII claim for a
hostile work environment and thus in her “main goal of
secur[ing] protection from Lt. Young’s sexual harassment and to
discourage sexual harassment in the Fairfax County Fire
Department.”
(P. Rebuttal at 16.)
Ms. Bland’s success as a civil rights plaintiff cannot
be measured entirely by her monetary recovery, as her success
also has an impact on the local public, specifically Defendant’s
employees.
See City of Riverside v. Rivera, 477 U.S. 561, 576
(1986) (rejecting the proposition that fee awards under § 1988
should necessarily be proportionate to the amount of damages a
civil rights plaintiff actually recovers).
The Supreme Court
has explained that “[b]ecause damages awards do not reflect
fully the public benefit advanced by civil rights litigation,
Congress did not intend for fees in civil rights cases, unlike
most private law cases, to depend on obtaining substantial
monetary relief.”
Id. at 575.
The Court finds that Plaintiff
achieved full success and therefore an award of $295,703.00 in
attorneys’ fees is reasonable.
C. Costs
32
Lastly, Plaintiff requests $11,002.69 for costs
incurred in this litigation.
Plaintiff submits an “Invoice for
Reimbursable Expenses” that provides detail on the majority of
those costs.
[Dkts. 134-4, 146-2.]
Vendor
Diversified Reporting
Services
Anita Glover & Assoc.,
LTD
Capitol Process Services,
Inc.
Lasership
Photocopy Machine
Parking9
Transportation
Westlaw Expenses
Norman B. Linnell, PMR
Mid-Atlantic Rescue
Systems
United States Postal
Service
Court Filing Fees
Totals
Service
Depositions
Amount
$4,462.35
Court Reporting
$1,070.50
Service of Process
$510.00
Courier Service
Copying/Faxing/Scanning
Transportation/Lunch
Personal Mileage
Research
Court Reporter (E.D.Va)
Pike Pole
$25.22
$2,988.00
$47.78
$318.81
$614.29
$510.30
$50.00
Certified Mail
$5.44
Complaint/Pro Hac Vice
$400.00
$11,002.69
Defendant argues that the request for costs is
governed by Federal Rule of Civil Procedure 54(d) (and
corresponding Local Rule of Civil Procedure 54(D)(1)) and 28
U.S.C. §§ 1920, 1924.
(D. Reply at 8.)
Relying on those rules
and statutes, Defendant argues that Plaintiff’s cost request is
missing a required affidavit, contains a deficient itemization
of particular expenses, and includes categories of costs that
are not permitted.
(D. Reply at 8-10.)
9
Defendant also argues
Reflects the addition of $12 for parking expense at the Petition hearing.
[Dkt. 146-2.]
33
that Plaintiff should not be allowed to recover costs for some
depositions.
(D. Reply at 10-11.)
In conclusion, Defendant
seeks denial of all costs or their substantial reduction.
(D.
Reply at 10-11.)
Defendant’s reliance upon Fed. R. Civ. P. 54(d) and 28
U.S.C. §§ 1920, 1924 ignores the fact that this case is a civil
rights action.
In Wheeler v. Durham City Board of Education,
585 F.2d 618, 623 (4th Cir. 1978), the Fourth Circuit explained
that “[i]n determining whether litigation expenses should be
recovered as part of attorneys’ fees, a distinction should be
drawn between taxable costs, authorized under F. R. Civ. P.
54(d), and statutorily authorized attorneys’ fees.”
The Court
stated that “[w]here attorneys' fees are expressly authorized by
statute, as in § 1617, Rule 54(d) is no longer relevant.”
Id.
“Instead, the question is whether the statutory authorization of
reasonable attorneys’ fees was intended to include litigation
expenses.”
Id. (holding that the statutory authorization was
intended to include litigation expenses).
The Fourth Circuit went on to apply its holding in
Wheeler to expense awards under § 1988.
at 1082-84.
Daly v. Hill, 790 F.2d
The Court explained
The difference between the scope of costs taxable under
Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920 and under § 1988
is due to the fact that these two bodies of law . . . are
grounded in antithetical policies. Rule 54(d) and § 1920
are premised on the traditional ‘American Rule’ that each
party to a lawsuit bear its own costs. Section 1988 was
34
intended as an exception to the American Rule and is
premised on the idea of fee shifting. Because meritorious
civil rights plaintiffs are ‘private attorneys general’
enforcing important congressional policies, § 1988 is
intended to encourage them to bring suit by shifting the
costs of litigation to defendants who have been found to be
wrongdoers.
Id. at 1083-84 (internal citations and quotations omitted.)
See
also Project Vote/Voting for Am., Inc. v. Dickerson, No. 102403, 2011 U.S. App. LEXIS 18118, at *12-13 (4th Cir. Aug. 29,
2011) (noting Congress’ intent in enacting § 1988).
This
request for costs is brought pursuant to Title VII of the Civil
Rights Act of 1964, which confirms the discretion granted to the
court by the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.
§ 1988.
Thus, the request for costs is governed by the fee
shifting provision of Title VII.
This Court turns to Plaintiff’s request while
recognizing that “[a]n expense award, like an attorney’s fee,
must adequately compensate counsel without resulting in a
windfall.”
Daly v. Hill, 790 F.2d at 1084 n. 18.
As the Fourth
Circuit explained in Wheeler:
Litigation expenses such as supplemental secretarial costs,
copying, telephone costs and necessary travel, are
integrally related to the work of an attorney and the
services for which outlays are made may play a significant
role in the ultimate success of litigation . . . . [T]o
recount the reasons for including litigation expenses in a
fee award is perhaps to state the obvious; for other
federal courts have routinely provided for recovery of outof-pocket expenses in conjunction with fee awards.
* * *
35
We view differently, however, the fees and expenses of
outside, non-legal consultants and experts. Their fees and
expenses are traditionally not regarded as attorneys' fees,
however essential their services may be to the successful
preparation and trial of a complex case.
585 F.2d at 624; see also Trimper v. City of Norfolk, 58 F.3d
68, 75 (4th Cir. 1995) (noting that “the Daly Court specifically
held that § 1988 contemplates reimbursement not only for
attorney’s fees but also litigation expenses such as secretarial
costs, copying, telephone costs and necessary travel.”)
The Court has carefully reviewed Plaintiff’s “Invoice
for Reimbursable Expenses” and finds that the expenses are
appropriate under Title VII.
The Court has already determined
that fees associated with the depositions are reasonable and the
same reasoning applies to the costs associated with the
depositions.10
Therefore, the Court awards expenses in the
amount of $11,002.69.
10
This Court did not find any additional expense (beyond the attorneys’ fees)
related to having two attorneys attend the Riley-Hall deposition.
36
IV.
Conclusion
For these reasons, the Court will grant Plaintiff’s
Petition in the amount of $295,703.00 and $11,002.69 in costs,
for a total of $306,705.69.
An appropriate Order will issue.
November 7, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
37
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