Bernardi v. Yeutter
| Decision Date | 05 January 1990 |
| Docket Number | No. C 73 1110 SC.,C 73 1110 SC. |
| Citation | 754 F. Supp. 743 |
| Parties | Gene C. BERNARDI, et al., Plaintiffs, v. Clayton YEUTTER, Secretary of Agriculture, Defendant. |
| Court | U.S. District Court — Northern District of California |
Guy T. Saperstein, Saperstein & Seligman, Oakland, Cal., Nancy L. Davis, Judith E. Kurtz, Equal Rights Advocates, Inc., San Francisco, Cal., for plaintiffs.
Kathryn D. Ray, Dept. of Justice, Washington, D.C., for defendant.
The plaintiffs' attorneys' present petition for attorney fees involves a single motion for contempt. The petition represents a classic case of over-lawyering and unnecessary piling on of hours, attorneys and assistants. ONE SINGLE competent attorney could have handled the underlying motion in a minimum of hours.
An attorney owes a duty to his client to do competent work; but that does not include an unreasonable, unnecessary and duplicative amount of effort in order to sustain billable hours.
This court will award reasonable attorney fees when the facts and circumstances warrant; however, this court has reviewed the documentation in the case and is quite concerned with the appropriateness of the billing procedure utilized by the plaintiffs' attorneys. The length of time in rendering this present Order is indicative of the court's concern re the attorneys' fees and costs submitted.
This litigation results from charges of sex discrimination in the hiring and promotion policies of the Forest Service. In order to remedy any such discriminatory practices both parties in the litigation stipulated to a Consent Decree which instituted a complex plan whereby the defendant would follow agreed upon hiring and promotion directives. This court approved the Consent Decree and established a Decree Monitor who would be responsible for overseeing the Forest Service's compliance with the Decree.
The Consent Decree required the Monitor to file a series of multi-volume reports evaluating, on a semi-annual basis, the progress being made in extending equal employment and training opportunities to women, and accomplishing the goals of the Decree. Consent Decree, Art. V.F.1. In addition, the Monitor was authorized to file a further report summarizing defendant's activities throughout the first five years of the Decree and was provided complete access to Forest Service records. Decree, Art. V.F.2. The Decree required defendant to pay the Monitor for these services which has resulted in payments of over $370,000.
In 1986 the plaintiffs filed a contempt motion in which they sought to establish the defendant's failure to comply with the Consent Decree. At that time the Monitor was preparing a report which would reach precisely that conclusion. From filing to judgment the motion took a year to litigate and, consistent with the Monitor's findings, the Magistrate found that the defendant had indeed failed to comply with the Decree.
As the prevailing party in the action the plaintiffs were entitled to attorneys' fees for their work. A fee petition asking for attorneys' fees in the amount of $549,197, plus costs in the amount of $6,591.02. was then submitted and approved by the presiding Magistrate. The Magistrate also approved fees and costs for work on the fee petition itself totaling $65,641.50.
In order to reach this supposedly reasonable figure the Magistrate characterized the motion as complex litigation and accepted all of the plaintiff's claimed hours and multiplied them by the plaintiff's counsels' claimed billing rate. No downward adjustment was made despite evidence that the claimed hours and rates were high for this type of work. Instead the Magistrate doubled the figure reached. Defendant has objected to the recommended fees and costs as being excessive and the matter is now before the court on defendant's appeal of the Magistrate's findings.
The court, having reviewed the matter de novo, and being fully aware of the Magistrate's recommendations, finds that the plaintiffs' counsels' hourly rate and number of hours billed to this matter were unreasonably if not unconscionably high. Furthermore, the court finds that plaintiff's counsels' billing records are inadequate and border on the highly questionable. Moreover this court finds that the Magistrate inappropriately doubled the plaintiff's already bloated fee request to a figure far higher than that needed to attract competent counsel to the case. Finally the court finds that the award of attorneys' fees to special counsel who did nothing but overlitigate an already outlandish fee petition was completely improper and would, if awarded, amount to a flagrant abuse of the court's power to award reasonable fees.
To begin, the Magistrate referred to this proceeding as complex litigation. The plaintiff's counsels' declarants, providing evidence on what a reasonable hourly rate would be, referred to the rate for complex litigation. This court completely disagrees. This was not an involved Title VII class action, this was a single contempt motion. The Monitor had already gathered and then provided plaintiffs with all the underlying factual material. Unlike a Title VII class action there was no need for extensive discovery, statistical analysis, expert testimony or even much legal argument. To put it simply, the plaintiffs seek compensation for synthesizing five years of the Monitor's reports to establish the Forest Service's failure to fulfill the Decree. See Pls.'Memo, Exh. 2, Dec. of Kurtz at 3-4.
This court does not find such an activity to be complex litigation. In fact the Monitor, who is not an attorney, and does not have a staff of attorneys working for her, accomplished exactly the same task. Moreover the court finds that the plaintiffs had no excuse for undertaking an exhaustive reconstruction of the same record the Monitor was laboring to build. The court had instructed the Monitor to prepare a report — a report defendant also was compelled to pay for — and the plaintiffs concede that they duplicated the same work merely in order to obtain the results of the Monitor sooner. The end result: No complex litigation but wasteful repetitious fact gathering. With this in mind the court shall move to the next phase of inquiry.
To handle a single motion for contempt, plaintiffs engaged five attorneys, three law clerks, and one paralegal and expended over 1,400 attorney and 800 law clerk and paralegal hours. This amounts to nearly 35 weeks of claimed attorney time and 20 weeks of claimed law clerk time for one contempt motion, which as the court noted, consisted mainly of unnecessary and repetitious fact gathering. After reviewing the plaintiffs' counsels' records the court finds that the plaintiffs' counsel expended far too much time on this matter, utilized too many attorneys and in general exercised very poor billing judgment.
To begin, plaintiff's counsel spent an excessive amount of time in meetings together. Ms. David and Kurtz, for example, each billed 67.5 hours for the same meetings, and sometimes as many as four persons billed for the same meetings. The court sees no reason to compensate for this duplication of effort.
And in the words of another court, "an inordinate number of attorney hours were claimed for reviewing and analyzing ... records and preparing associated affidavits and memoranda, in view of the largely clerical skills needed for reviewing these records and the relatively uncomplicated law applicable to their analysis." Jacobs v. Mancuso, 825 F.2d 559, 563 (1st Cir.1987); Transgo, Inc. v. AJAC Transmission Parts Corp., 768 F.2d 1001 (9th Cir.1985).
Moreover the court notes that much of plaintiff's counsels' submissions are couched in very general terms which give the court no basis on which to judge their propriety. For example Nancy Davis billed 149.1 hours between the dates of 6/11/85 and 4/23/86. However no less than 10 of those hours are billed to various phone conferences in which the subject matter discussed is not specified, and over 50 hours were billed for various meetings, again the subject matter of which is not given.
A fee applicant is not entitled to recover hours not reasonably expended, excessive, redundant, otherwise unnecessary or not properly billed to one's client. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. Moreover the court must "scrutinize the application for evidence of duplication of effort." Abrams v. Baylor College of Medicine, 805 F.2d 528, 536 (5th Cir.1986). In the present case the court has found massive duplication of effort, and excessive and improperly billed hours. The court shall therefore reduce the number of claimed hours by one half as the court feels this more than adequately represents a reasonable number of hours which may be billed to this matter.
Plaintiffs' counsels' 1988 claimed theoretical rates are as follows: Nancy David — $225 per hour; Judith Kurtz — $210 per hour; Shauna Marshall — $175 per hour; Ellen Shapiro — $130 per hour; Teresa Friend — $125 per hour. The reasonableness of these hourly rates must be determined by reference to the experience, reputation, and ability of the attorneys in the community. Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir.1975). Under this standard, the court finds such rates to be grossly excessive.
In this regard the court first notes plaintiffs did not offer a single declaration of any attorney who practices Title VII plaintiffs' litigation in order to support their claimed rates. Instead they have offered the testimony of a Title VII defense attorney, and two anti-trust attorneys who testified as to rates for "complex civil litigation". As noted this court does not find the case to have been complex litigation.
The court finds far more relevant, as evidence of appropriate hourly rates, the testimony of two compa...
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