Dickerson v. City Bank & Trust Co.

• Decision Date: 29 June 1984
• Docket Number: Civ. A. No. 82-4112.
• Citation: 590 F. Supp. 714
• Parties: Emmett DICKERSON, Jr., Plaintiff, v. CITY BANK & TRUST COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Kansas

590 F. Supp. 714

Emmett DICKERSON, Jr., Plaintiff, v. CITY BANK & TRUST COMPANY, et al., Defendants.

Civ. A. No. 82-4112.

United States District Court, D. Kansas.

June 29, 1984.

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Fred W. Phelps, Jr., Phelps-Chartered, Topeka, Kan., for plaintiff.

Mikel L. Stout, Amy S. Lemley, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

O'CONNOR, Chief Judge.

This matter is presently before the court on plaintiff's application for attorney's fees and on defendant City Bank and Trust Company's City Bank motion to alter or amend the judgment. We have reviewed the memoranda submitted by the parties and are now prepared to rule.

Plaintiff filed his action on May 18, 1982, alleging, inter alia, violations of 42 U.S.C. §§ 1981, 1983, and 1985. On January 5, 1983, the plaintiff moved to amend his complaint to add a cause of action for recovery under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.). In an opinion appearing at 575 F.Supp. 872, Judge Richard Rogers of this court denied the motion to amend. This denial was based on the futility of allowing the amendment because plaintiff had not timely filed his charge with the EEOC, and would subsequently lose on the merits. But see Smith v. Oral Roberts Evangelistic Association, 731 F.2d 684, 690 (10th Cir.1984) (overruling Dickerson on that issue). The case was tried to a jury, and on October 28, 1983, a verdict was returned for the plaintiff against defendant Cindy Seeger, his immediate supervisor, and in favor of the defendants City Bank and Phil Miller. We granted plaintiff's motion to alter and amend the judgment, holding the Bank liable under the doctrine of respondeat superior. Dickerson v. City Bank & Trust Co., No. 82-4112 (D.Kan., unpublished, 4/18/84). Defendant City Bank has filed a motion to alter and amend our decision on the respondeat superior issue. In addition, the parties have filed voluminous memoranda and exhibits in support of their respective positions on the attorney's fees issue.

We are not persuaded by City Bank's argument that our ruling of April 18, 1984, holding the bank liable, was in error. The jury could have reached no other conclusion on the respondeat superior issue had that question been presented to the jury in a clear manner. There was no evidence presented at trial that Seeger's actions were personal to her or that she had stepped aside from the bank's business. Hollinger v. Stormont Hospital and Training School for Nurses, 2 Kan. App.2d 302, 578 P.2d 1121 (1978); Williams v. Community Drive-In Theatre, Inc., 214 Kan. 359, 520 P.2d 1296 (1974). City Bank, as a distinct entity, was presented on the verdict form only to reflect discrimination by employees, including, but not limited to, defendants Seeger and Miller. Perhaps the instructions should have directed that if the jury found against either Seeger or Miller, then the bank would also be liable as a matter of law. This would reflect the general rule that "an employer is liable under both Title VII and section 1981 `where the action complained of wat that of a supervisor, authorized to hire, fire, discipline or promote, or at least to participate in or recommend such actions, even though what the supervisor is said to have done violates company policy.'" EEOC v. Gaddis, 733 F.2d 1373 (10th Cir.1984) quoting Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir.1979). There is, of course, no requirement that the employer have knowledge of the discriminatory conduct. W. Prosser, Handbook of the Law of Torts 458-467 (4th ed. 1971); Miller v. Bank of America, 600 F.2d at 212. Therefore, City Bank's motion to alter and amend the judgment is denied.

We turn now to the plaintiff's application for attorney's fees. Unfortunately, litigation on attorney's fees under 42 U.S.C. § 1988, after a party has prevailed on the merits, has become a time consuming and complex issue unto itself. This case is no exception. Thus, we will examine the relevant case law and attempt to establish guidelines in an effort to aid the parties in this and future cases.

In two recent decisions, the Supreme Court has clarified the standards to be applied to requests for attorney's fees in civil rights cases. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Blum v. Stenson, ___ U.S. ___, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Cf. Pulliam v. Allen, ___ U.S. ___, ___, n. 18, 104 S.Ct. 1970, 1979, n. 18, 80 L.Ed.2d 565 (Powell, J., dissenting). In Hensley, which was the first major pronouncement on attorney's fees since Alyeska Pipe Line Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the Court set out general guidelines for district courts in determining the amount of attorney's fees. A reasonable fee should initially be calculated on the basis of "the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate."¹ Hensley v. Eckerhart, 461 U.S. at ___, 103 S.Ct. at 1939. Once an initial fee is determined, the court may then take into consideration other factors in adjusting the amount. These factors include the degree of success obtained by the prevailing party with respect to all the claims asserted, whether the hours were properly billable, and whether adequate billing records were kept by the party.² Further, the Court stated that a "a request for attorney's fees should not result in a second major litigation." Id. 103 S.Ct. at 1941. If the parties are unable to resolve the matter, the fee applicant bears the burden of establishing entitlement. In order to preserve its rights on appeal, however, the defendant has the burden to come forward with evidence indicating the unreasonableness of the fee requested. Blum v. Stenson, ___ U.S. at ___, 104 S.Ct. at 1545.

In Blum v. Stenson, the second attorney's fees case decided this term, the Court clarified some of the issues remaining after Hensley. Nonprofit legal service organizations were held to be entitled to compensation at the prevailing market rate. In addition, an upward adjustment or enhancement of attorney's fees is appropriate only in exceptional circumstances. In his concurrence, Justice Brennan voiced the opinion that the risk of nonpayment due to a contingent fee is one factor which may be considered in enhancing the amount of the award; however, the majority expressly reserved ruling on the question. See Blum v. Stenson, ___ U.S. at ___, 104 S.Ct. at 1550-51. Finally, the Court noted the admonition of Hensley that requests for attorney's fees should not result in a second major lawsuit, and that "the district court, with its intimate knowledge of the litigation, has a responsibility to encourage agreement." Blum v. Stenson, ___ U.S. at ___, n. 19, 104 S.Ct. at 1550, n. 19.

Two recent Tenth Circuit cases have expounded upon the subject. Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983); Cooper v. Singer, 719 F.2d 1496 (10th Cir. 1983). In Ramos, the court examined the method of calculating the time and reasonable hourly rate to be considered by the district court. In computing time, attorneys for the parties must distinguish between "raw" time and "billable" time. Ramos v. Lamm, 713 F.2d at 553. See, also, Hensley v. Eckerhart, 461 U.S. at ___, 103 S.Ct. at 1939-40. The court must take into consideration the number of hours reported for each specific task. Research into background cases and other attempts generally aimed at providing familiarization with an area of law should not be billed to the adversary, but rather should be absorbed in the attorney's overhead. Similarly, duplication of services by attorneys working on the same case must be avoided. However, the use of more than one lawyer on a case does not require an automatic reduction or a presumption that services were duplicated.

The court should next consider the reasonable hourly rate. The general rule is that an attorney for a prevailing party should receive "what lawyers of comparable skill and experience, practicing in the area in which the litigation occurs, would charge for their time." Ramos v. Lamm, 713 F.2d at 555. Thus, the court must make a determination of the skill of each lawyer participating in the case, the attorney's experience in civil rights litigation, and the local hourly rate employed by members of the bar within the area where the court sits.

The effect of contingent fee agreements on attorney's fees awards was decided in Cooper v. Singer, 719 F.2d 1496 (10th Cir. 1983) (en banc). The court held that if an award of attorney's fees under § 1988 is less than the amount owed to the attorney under the contingent fee agreement, then the lawyer must be limited to the § 1988 amount. However, if the award is greater than the contingency agreement, the attorney may keep the total amount awarded under § 1988. It was noted, however, that even under § 1988, a contingency bonus may be appropriate if the attorney will only be compensated if his client is the prevailing party. Cooper v. Singer, 719 F.2d at 1506, n. 14. As noted previously, the contingency bonus issue was expressly reserved in Blum v. Stenson, supra.

With these authorities in mind, we now turn to the merits of the attorney's fees application in the present case.

Plaintiff's petition for attorney's fees was filed on February 24, 1984. It contained an 11-page brief outlining what plaintiff considered to be relevant factors in support of his request for an award of $53,750.00 attorney's fees (plus a multiplier), expenses of $2,397.67, and costs. Further, plaintiff submitted 14 pages of computer-printed time slips documenting 430 hours, and other documents concerning the costs involved in the case. Plaintiff also attached an opinion of this court, in which Judge Rogers previously awarded attorney's fees to the Phelps firm. Orr v. Kansas Public Employees Retirement System, No. 78-4175 (D.Kan., unpublished, 2/8/84).

Defendants...