Bertrand v. City of Lake Charles, CIVIL ACTION NO. 2:10-cv-867
| Decision Date | 24 February 2013 |
| Docket Number | CIVIL ACTION NO. 2:10-cv-867 |
| Parties | LEISHA BERTRAND v. CITY OF LAKE CHARLES |
| Court | U.S. District Court — Western District of Louisiana |
Before the court is a request for an award of attorneys' fees [Doc. 42] by plaintiff, Leisha Bertrand, which was referred to the undersigned by Judge Minaldi in her judgment dated May 29, 2012. Doc. 44. During the pendency of that request, plaintiff has filed a supplemental request for an award of attorneys' fees. Doc. 58.
Plaintiff brought two claims against defendant, the City of Lake Charles. The first claim sought relief under Title VII of the Civil Rights Act of 1964 (codified as 42 U.S.C. § 2000e, et seq.) and 42 U.S.C. § 1983. Plaintiff claimed that defendant was vicariously liable for the alleged sexual harassment by plaintiff's supervisor, Todd Sherman. Doc. 1, pp. 1-3. The district court ultimately dismissed this claim. Doc. 39, pp. 9-10.
The second claim sought relief pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Plaintiff alleged that the she was impermissibly denied requested leave. The court concluded that the City impermissibly denied plaintiff leave and impermissibly retaliated against plaintiff for asserting her statutory rights. Doc. 39, pp. 10-13. The court entered judgment against defendant in the amount of $129,357.01 with an additional amount in attorneys' fees to be decided by the undersigned. Doc. 44.
The parties have recently informed the court that they have settled many of the outstanding issues left unresolved by the judgment of the court. The question of attorneys' fees is the sole issue left to be resolved. Doc. 68.
The FMLA provides for reasonable attorneys' fees to be awarded to a prevailing plaintiff. 29 U.S.C. § 2617(a)(3). The parties agree that this court is entitled to impose attorneys' fees in accordance with the standards elucidated by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), and its progeny.1
The court begins its inquiry by asking whether plaintiff is a "prevailing party." Eckerhart, 461 U.S. at 433. This requirement is not high, requiring only that plaintiff "succeed on any significant issue in litigation which achieves some of the benefits [plaintiff] sought in bringing suit." Id. (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The undersigned concludes that plaintiff is a prevailing party as she secured a judgment in her favor on her FMLA claim. See Farrar v. Hobby, 506 U.S. 100, 109 (1992).
Second, the court must "determine what fee is 'reasonable.'" Eckerhart, 461 U.S. at 433. The court reaches a preliminary figure from which to work by "calculating the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. Counsel should exercise caution to document their time adequately and should exercise "billing judgment" by "mak[ing] a food faith effort to exclude . . . hours that are excessive, redundant, or otherwise unnecessary . . . ." Id. at 433-34.
In conducting this analysis, the court must consider the factors elucidated by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The factors are as follows:
Plaintiff's claims were advanced by two attorneys—Dale E. Williams and James R. Morris. Plaintiff submits that the reasonable hourly rates of compensation for Mr. Williams and Mr. Morris are $250.00 and $225.00, respectively. Doc. 42, Att. 1, pp. 8-11. Both attorneys have included affidavit attesting to their experience and ability in seeing similar litigation through trial. Doc. 42, Atts. 2, 5. Moreover, plaintiff has attached a copy of counsels' records of hours billed on this case, with edits to reflect billing judgment. Plaintiff maintains that Mr. Williams expended 201.3 hours on the case while Mr. Morris expended 142.1 hours. Doc. 42, Atts. 4, 7.
The fee of Mr. Williams individually totals $50,325.00, and the fee of Mr. Morris individually totals $31,972.50. The combined total of both attorneys comes to $82,287.50. Defendant does not contest the amount of hours expended by the attorneys or their rate per hour. Doc. 47, p. 1.
After conducting an independent examination of the materials provided by plaintiff, the court concludes that the figures provided by plaintiff are appropriate in light of the Johnsonfactors previously mentioned. From this base figure, or "lodestar", the court must "adjust the fee upward or downward" based on other considerations. Eckerhart, 461 U.S. at 434.
Plaintiff contends that the lodestar should be adjusted upward because there is a shortage of counsel in the area with the requisite expertise to pursue FMLA cases. Doc. 42, Att. 1, pp. 11-12. She argues that an upward adjustment will encourage other lawyers to fill this void in the community.
We do not award an upward adjustment in this instance as plaintiff has failed to provide any evidence of that the local attorney market is deficient in this respect. Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir. 1987) ().
Defendant asks this court to adjust downward any award of attorneys' fees because plaintiff was unsuccessful in pursuing her Title VII claim.
The Supreme Court has made clear that "results obtained" is a crucial factor that the court must consider. In assessing results the court must consider (1) whether plaintiff was unsuccessful on claims "unrelated to the claims on which [she] succeeded," and (2) whether "plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award[.]" Id. The Court explains the rationale behind this inquiry as follows:
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants — often an institution and its officers . . . . —counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.
Id. at 434-35 (citation and internal quotation marks omitted).
Defendant correctly notes that plaintiff was unsuccessful in pursuing her Title VII claim. Defendant argues that the Title VII claim is distinct from the FMLA claim and that there lacks a "common core of fact" between the two. As the claims were "separate and distinct" from one another, defendant requests that the previous calculation of the base award previously identified be cut in half. Doc. 47, pp. 2, 4.
Plaintiff responds with several arguments. She argues that both claims "involve[d] enquiries into the circumstances of termination." Doc. 49, p. 1. Moreover, she notes that most of the filings did not deal exclusively with one claim or the other; rather, they dealt with procedural issues common to both. Doc. 49, p. 1. Similarly, only one of the witnesses deposed dealt primarily with the Title VII claim. The rest testified to the circumstances surrounding plaintiff's termination and her FMLA claim. Doc. 49, p. 2. As such, plaintiff says that a reduction is inappropriate because plaintiff's claims were not "distinct in all respects." Doc. 49, p. 3.
Plaintiff is correct that there is a great deal of labor common to both causes of action that would have been expended even if plaintiff had only pursued her FMLA claim. Moreover, there is some factual and legal overlap between the two claims. Plaintiff was terminated by the defendant and it was counsel's task to unravel the circumstances of plaintiff's termination. See Eckerhart, 461 U.S. at 435 ().
On the other hand, however, the court cannot conclude that the two legal theories are inseparable. The claims could have been litigated in separate suits. The FMLA was not an alternative theory in the event the Title VII claim was unsuccessful. Plaintiff concedes that someof the work, specifically with regards to witness Todd Sherman, dealt primarily with the Title VII claim alone.
The court concludes reduction in the lodestar is necessary. The Eckerhart Court made clear that it is incumbent upon those seeking attorneys' fees to "maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." 461 U.S. at 437 (footnote omitted). However, counsel has not undertaken such an effort and the undersigned is unable to make such a determination by reference to the tables provided. "When the documentation of hours is inadequate for the court to identify those hours spent on prevailing claims which are separate and distinct from other claims, the court may reduce the fee award accordingly." Von Clark v. Butler, 916 F.2d 255, 259 (citations omitted). "Absent a reliable record of the time expended on the prevailing claim, it is within the discretion of the district court to determine a reasonable number of hours that should have been expended in...
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