Dorr v. Woodlands Senior Living Or Brewer, LLC
| Decision Date | 29 September 2017 |
| Docket Number | 1:15-cv-00092-JCN |
| Parties | CHRISTY DORR, Plaintiff v. WOODLANDS SENIOR LIVING OR BREWER, LLC, Defendant |
| Court | U.S. District Court — District of Maine |
After a three-day trial, a jury determined that in terminating Plaintiff's employment, Defendant discriminated against Plaintiff because of a disability, and that Defendant interfered with Plaintiff's right to take family medical leave. (Jury Verdict, ECF No. 102.) The jury declined to award Plaintiff damages on the discrimination claim, but awarded Plaintiff $15,000 in back pay on her family medical leave claim. Plaintiff had also alleged that in its decision to terminate her employment, Defendant discriminated against her due to her pregnancy and retaliated against her because she exercised her right to take family medical leave. The jury returned a verdict in favor of Defendant on those claims. On Plaintiff's post-trial motion for supplemental relief, the Court awarded nominal damages on the disability claim, liquidated damages on the family medical leave interference claim, and certain injunctive relief.
The matter is before the Court on Plaintiff's motion for an award of attorney fees, through which motion Plaintiff requests a fee award of $150,272.50 and costs in the amount of $16,514.16. (Plaintiff's Reply at 7, ECF No. 119.) Defendant acknowledges that Plaintiff is entitled to an award of attorney fees, but contends that Plaintiff should not recover the amount requested because Plaintiff did not prevail on all of her claims, including her claim for non-economic compensatory damages. The Court grants in part Plaintiff's motion.
Because Plaintiff prevailed on her claims under the Family Medical Leave Act and the Maine Family Medical Requirements, she is entitled to recover a reasonable attorney fee and other costs. 29 U.S.C. §2617(a)(3); 26 M.R.S. § 848(3). Furthermore, provided she qualifies as a "prevailing party," the Rehabilitation Act, 29 U.S.C. § 794a(b), and the Americans with Disabilities Act, 42 U.S.C. § 12205, authorize courts to award a reasonable attorney fee, litigation expenses, and costs. 42 U.S.C. § 12205; 29 U.S.C. 794a(b). "When used in a federal fee-shifting statute, 'the term "prevailing party" [is] a legal term of art.'" Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 8 (1st Cir. 2011) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)). "The concepts that shape the term apply broadly to the entire universe of federal fee-shifting statutes." Id. "To qualify as a prevailing party, a litigant must show that a material alteration of the parties' legal relationship has taken place as a result of the litigation." Id. By receiving a judgment in her favor on the merits, Plaintiff qualifies as a prevailing party. Id. at 9.
The presumptively reasonable fee award is measured by the "lodestar," which is computed by multiplying the number of hours reasonably expended on the litigation by a reasonable rate. Blum v. Stenson, 465 U.S. 886, 897 (1984). The burden is on a plaintiffto provide evidence of the hours expended and the "prevailing rate in the community for comparably qualified attorneys." United States v. Metro. Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988). To the extent the hours expended appear excessive, a court may "reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
"The figure derived from the lodestar calculation may be adjusted up or down to reflect [the] [p]laintiff's degree of success in the litigation." Chalout v. Interstate Brands Corp., 296 F. Supp. 2d 2, 4 (D. Me. 2004) (citing Hensley, 461 U.S. at 434). For example, where a plaintiff prevails on some but not all claims, and the lost claims involve "distinctly different claims for relief that are based on different facts and legal theories," no fee may be awarded for time that is attributable to such claims. Hensley, 461 U.S. at 434. See also United States v. One Star Class Sloop Sailboat, 546 F.3d 26, 38 - 39 (1st Cir. 2008); Cushing v. McKee, 853 F. Supp. 2d 163, 170 (D. Me. 2012).
Finally, the Court notes that "[t]he essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection." Cushing, 853 F. Supp. 2d at 170 ().
Plaintiff has requested a rate of $350 per hour for time expended by her counsel. Counsel's affidavit reflects that counsel began billing at the rate of $350 per hour in August2016, approximately 17 months after the commencement of this matter. At the commencement of this matter, Plaintiff's counsel billed at the rate of $300 per hour.
Defendant maintains that the Court should use the rate of $300 per hour for counsel's time reasonably expended prior to August 2016, and $350 per hour for time reasonably expended thereafter. Although an award measured by a current hourly rate could be granted to account for the costs associated with the delay in payment, Missouri v. Jenkins, 491 U.S. 274, 283 - 84 (1989), the Court is not persuaded that payment at the current rate for all of counsel's time is warranted in this case. Defendant's suggested approach is reasonable insofar as it would compensate counsel at the rate counsel billed at the time the services were rendered.
Defendant also objects to the inclusion of paralegal time in any award. In the related area of fee awards provided under the Equal Access to Justice Act, 28 U.S.C. § 2412, the Supreme Court has held that a prevailing party may recover paralegal fees at prevailing market rates. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). Likewise, the Supreme Court has authorized awards for paralegal and law clerk fees in the context of analogous civil rights fee-shifting awards under 42 U.S.C. § 1988. Jenkins, 491 U.S. at 284 - 85. Similar reasoning supports Plaintiff's request for paralegal fees in this case. The rate of $105 per hour requested for paralegal time in this case is reasonable.
Defendant also contends Plaintiff's request for the full rate for counsel's time expended in case-related travel is unreasonable. While "[t]ravel is often a necessary incident of litigation" and "may be reimbursed in a fee award," travel time "ordinarily is calculated at an hourly rate lower than that which applies to the attorney's substantivelabors." Hutchinson v. Patrick, 636 F. 3d 1, 29 (1st Cir. 2011). This Court's practice is to allow recovery of fees for travel at one-half counsel's rate. IMS Health Corp. v. Schneider, 901 F. Supp. 2d 172, 193 (D. Me. 2012); Cushing v. McKee, 853 F. Supp. 2d 163, 174 n.9 (D. Me. 2012); Desena v. LePage, 847 F. Supp. 2d 207, 212-13 (D. Me. 2012). The Court discerns no reason to deviate from the standard practice in the District.1
Plaintiff requests a fee award for 383.6 hours of counsel's time, and 152.5 hours of paralegal/investigator time, inclusive of Plaintiff's reply to Defendant's opposition to the instant motion. The request constitutes a reduction of 39 hours of counsel's time and 6.5 hours of paralegal/investigator time, based on counsel's assessment of the hours devoted specifically to unsuccessful claims of FMLA retaliation, pregnancy discrimination, and failure to accommodate. (Motion at 14.) Defendant challenges several parts of the request.
Plaintiff requests reimbursement for the expense incurred in the retention of Scott Schiff-Slater, M.D., who provided expert witness testimony. Defendant maintains the fee is excessive given that on Defendant's motion, the Court excluded some of the proposedopinions Dr. Schiff-Slater had developed and because Defendant did not prevail on all of her claims. The Court will address the expert witness fee issue in the context of Defendant's request for a reduction in the amount of the fee recovery due to Plaintiff's failure to prevail on all of her claims.
Defendant argues that the hours should be reduced to eliminate duplicative billings for when counsel and a paralegal participated in similar tasks. (Opposition at 16 - 17.) The Court finds that the assistance of a paralegal for the identified tasks was reasonable.
Defendant also challenges the fees and costs incurred in connection with a focus group Plaintiff's counsel engaged as part of their preparation of the case. Reasonable attorney time devoted to a focus group is recoverable. Trainor v. HEI Hospitality LLC, No. 1:09-cv-10349, 2012 WL 119597 at *10 (D. Mass. Jan. 13, 2012), affirmed in part, vacated in part on other grounds, 699 F.3d 19 (1st Cir. 2012); see also Prescott v. Rumford Hosp., No. 2:13-cv-00460-JDL, 2016 WL 3406079 at *4 (D. Me. June 17, 2016). Here, the attorney fees and costs associated with the focus group are reasonable.
Defendant argues the hours should be reduced because counsel's work on the fee petition is excessive. (Opposition at 18.) All of the time expended on the petition was performed by counsel (27.5 hours for the petition, 11.8 for the reply). The Court understands the importance of the fee petition, but determines that nearly 40 hours is unreasonable. Under the circumstances of this case, the Court believes it reasonable to reduce the amount by the 11.8 hours expended in connection with the reply memorandum.
The findings herein reflect effort reasonably expended on the litigation, which effort contributed to Plaintiff's success on the claims for which she was the prevailing party. Based on the foregoing analysis and findings, the lodestar for Plaintiff's fee petition is calculated based on 109.3 hours expended by counsel prior to August 2016, billed at the rate of $300 per hour;...
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