B.H. v. Obion Cnty. Bd. of Educ.

• Decision Date: 24 November 2021
• Docket Number: 18-1086-STA-jay
• Parties: B.H., A Minor Student, by and through His parent L.H., and L.H., Individually, Plaintiffs, v. OBION COUNTY BOARD OF EDUCATION d/b/a OBION COUNTY SCHOOLS, Defendant.
• Court: U.S. District Court — Western District of Tennessee

B.H., A Minor Student, by and through His parent L.H., and L.H., Individually, Plaintiffs, v. OBION COUNTY BOARD OF EDUCATION d/b/a OBION COUNTY SCHOOLS, Defendant.

No. 18-1086-STA-jay

United States District Court, W.D. Tennessee, Eastern Division

November 24, 2021

ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEY FEES

S THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff B.H., through his parent, L.H., and L.H., as an individual filed this action against Obion County Board of Education d/b/a Obion County Schools asserting claims of discrimination and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq. discrimination and retaliation under § 504 of the Rehabilitation Act, 29 U.S.C. §794 et seq., and retaliation under the First and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983. A trial of the matter was held on September 27 - 28, 2021. The jury returned a verdict in favor of Plaintiffs and awarded B.H. $3, 500 on his claim of discrimination under the ADA and the Rehabilitation Act and in favor of L.H., on her claim of retaliation under the ADA and the Rehabilitation Act in the amount of $60, 000 and in favor of L.H. on her First Amendment claim under 42 U.S.C. § 1983 in the amount of $25, 000. Judgment was entered against Defendant in the total amount of $88, 500. (Amd. J. ECF No. 118.)

Plaintiffs have filed a motion for attorney's fees and related expenses.^[1] (ECF No. 113.) Defendant has responded to the motion objecting to the amount sought. (ECF No. 119), and Plaintiffs have filed a reply to the motion. (ECF No. 120.) For the reasons set forth below, Plaintiffs' motion is GRANTED.

Pursuant to Federal Rule of Civil Procedure 54(d)(2), attorney's fees and related expenses are available by motion upon a showing of the judgment and statute that entitles the movant to the award and a statement or fair estimate of the amount of such an award. In the present case, § 504 and the ADA provide for the payment of a prevailing plaintiff's attorney's fees and litigation expenses, 29 U.S.C. § 794a(b); 42 U.S.C. § 12205; 42 U.S.C. § 1988(b); 28 C.F.R. § 35.17, as do § 1983 and the First Amendment. 42 U.S.C. § 1988(b), (c). The Supreme Court has directed that “a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation omitted). There are no such circumstances in the present case.

“The most useful starting point for determining the amount of a reasonable fee is” the lodestar amount - “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. Calculating the lodestar amount “does not end the inquiry, ” however. Id. at 434. “There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.'” Id. Factors that “may be relevant in adjusting the lodestar amount, ” Blanchard v. Bergeron, 489 U.S. 87, 94 (1989), are (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment due to acceptance of the case by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or 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 between the attorney and the client; and (12) awards in similar cases. Barnes v. City of Cincinnati, 401 F.3d 729, 745-46 (6th Cir. 2005). The Supreme Court and the Sixth Circuit have cautioned that “many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Geier v. Sundquist, 372 F.3d 784, 792 (6th Cir. 2004) (quoting Hensley, 461 U.S. at 434 n.9).

In the present case, there is no dispute that Plaintiffs are the prevailing party. Plaintiffs request the lodestar amount in the amount of $140, 085. This amount is arrived at by multiplying the number of hours expended by their attorneys on this matter (157.8 hours by Attorney Justin Gilbert) by his hourly rate ($450 per hour) for a total of $71, 010 in billable time, and (230.25 hours by Attorney Jessica Salonus) by her hourly rate ($300 per hour) for a total of $69, 075. Plaintiffs do not seek an upward adjustment to the lodestar amount. Plaintiffs also seek $582.93 in expenses for Attorney Gilbert and $3, 240.54 in expenses for Attorney Salonus. Defendant does not object to the amount of expenses sought. Plaintiffs request $143, 908.47 in combined fees and expenses.

The Court has reviewed the detailed time sheets provided by Plaintiffs' counsel (ECF Nos. 113-2, 113-3) and the information they have submitted concerning the reasonableness of their hourly rates and finds that both the amount of time expended and counsels' hourly rates are reasonable, even though Defendant objects to Attorney Gilbert's hourly rate of $450 and some of the activities for which compensation is claimed.^[2] A reasonable hourly rate for an attorney is calculated according to the prevailing market rates in the community “for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-9688 (1984). In support of his hourly rate, Attorney Gilbert has presented the declarations of Attorneys Michael Weinman, Billy Ryan, and Brice Timmons (ECF Nos. 113-4, 113-5, 113-6), all of whom have experience litigating in the Western District of Tennessee. They all attest to the reasonableness of Attorney Gilbert's hourly rate in light of his knowledge and experience in litigating complex, federal civil rights matters - especially those matters involving children such as B.H. who have special needs. Plaintiffs' counsel note that this Court previously approved an hourly rate of $400 for trial work and an hourly rate of $475 for appellate work for Attorney Brian Winfrey in the case of Peterson v. West TN Expediting, Inc., No. 1:18-cv-01164-STA-jay (W.D. TN. 2020). Attorney Winfrey has fifteen years' experience, as opposed to Attorney Gilbert's thirty-two years' experience. The Court finds that $450 an hour for someone with Attorney Gilbert's knowledge, training, and experience is reasonable in the present case and in this market.

As for the number of hours claimed, Defendant complains that Attorneys Gilbert and Salonus should not be compensated for “creating timelines, organizing exhibits, and researching case law” (11.25 and 6.75 hours respectively), work which Defendant claims could have been done by an associate or paralegal. In determining the number of hours reasonably expended, “[t]he question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief requested. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.” Wooldridge v. Marlene Industries Corp., 898 F.2d 1169, 1173 (6th Cir. 1990)). “The district court ... should exclude from [the] initial fee calculation hours that were not ‘reasonably expended.'” Hensley, 461 U.S. at 434. The Court must be guided by its discretion in making this determination because “[t]here is no precise rule or formula” for it to use. Id. at 436. “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.” Fox v. Vice, 563 U.S. 826, 838 (2011).

Here, the Court is not prepared to hold that attorneys cannot be compensated for organizing their own exhibits or researching matters related to the case. Some of the entries complained of directly relate to Plaintiffs' response to Defendant's motion for summary judgment, see, e.g., “8/14/2019 - Justin S. Gilbert - Legal research to respond to Obion County's motion for summary judgment; dictate memo. 3.0 hrs”; “9/4/2019 - Justin S. Gilbert - Research on application of ‘honest belief' asserted in D's motion for summary judgment where D's reporting witness exaggerates facts, i.e. ‘lies' about Plaintiff and drug use, etc. while still asserting ‘honesty' of belief. 2.25 hrs.” This was a critical stage for Plaintiffs in the litigation, and Plaintiffs fully prevailed in defeating Defendant's motion for summary judgment.

Additionally the Court required the parties to file briefs on the issue of ADA retaliation and entitlement to compensatory damages and a jury. This was a complicated matter, and the Court finds that it was reasonable for Plaintiffs' counsel to perform their own research on this issue. See Communities for Equity v. Michigan High Sch. Athletic Ass'n, 2008 WL 906031, at *13 (W.D. Mich. Mar. 31, 2008) (“Due to the significant number of hours rendered overall in this case, the Court accords discretion to the judgment of Plaintiffs' other attorneys in determining that it was reasonable to perform these tasks themselves. By performing this work themselves, Plaintiffs' counsel were likely able to enhance their trial preparation because of their increased familiarity with the matters.” (citing Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1583 (5th Cir.1989) (“Though some of the work done by plaintiff's attorneys arguably could have been done by paralegals, the fact that this work...