Houghton v. Sipco, Inc.

• Decision Date: 08 July 1993
• Docket Number: Civ. No. 4-89-CV-70533.
• Citation: 828 F. Supp. 631
• Parties: William J. HOUGHTON, et al., Plaintiffs, v. SIPCO, INC. f/k/a Swift Independent Packing Company, et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

828 F. Supp. 631

William J. HOUGHTON, et al., Plaintiffs, v. SIPCO, INC. f/k/a Swift Independent Packing Company, et al., Defendants.

Civ. No. 4-89-CV-70533.

United States District Court, S.D. Iowa, C.D.

July 8, 1993.

COPYRIGHT MATERIAL OMITTED

J. Russell Hixson and Terrence D. Brown of the Gamble and Davis law firm, Des Moines, IA, for plaintiffs.

William H. Bruckner of Bruckner & Sykes, Houston, TX, for defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

VIETOR, District Judge.

On December 4, 1992, plaintiffs' application for attorneys' fees and disbursements was referred to Hon. Mark W. Bennett, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). On June 2, 1993, Magistrate Judge Mark W. Bennett filed a report and recommendation in which he recommends that plaintiffs' counsel be awarded attorney fees in the amount of $259,399.80 plus reasonable costs and expenses in the amount of $19,545.61, for a total amount of $278,945.41. The parties were granted ten days within which to file objections to the report and recommendation. Defendants have filed objections to the report and recommendation.

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

28 U.S.C. § 636(b)(1).

I have made the required de novo review of the record.

I accept the report and recommendation of the Magistrate Judge. Judgment for the fees in the amount recommended will be entered.

REPORT AND RECOMMENDATION

BENNETT, United States Magistrate Judge.

"To the old adage that death and taxes share a certain inevitable character, federal judges may be excused for adding attorneys' fees cases."¹

                                   I. TABLE OF CONTENTS
                  I. TABLE OF CONTENTS                                                    633
                 II. INTRODUCTION AND BACKGROUND                                          634
                III. THE CONTENTION OF THE PARTIES                                        636
                     A. The Plaintiffs' Contentions                                       636
                     B. The Defendants' Contentions                                       637
                 IV. FINDINGS OF FACT                                                     638
                  V. ANALYSIS                                                             639
                

                    A. Overview of the Applicable Law Relating to ADEA and ERISA
                        Attorney Fees                                                     639
                    B. Determination of Plaintiffs' Lodestar Request                      640
                       1. Determining Plaintiffs' Reasonable Hourly Rate                  640
                          a. The Application of Current Rather Than Historical Rates      640
                          b. The Determination of Plaintiffs' Reasonable Hourly Rates     641
                               Utilizing the Market Rate Approach
                       2. The Determination of Plaintiffs' Counsel's Reasonable Hours
                            Expended                                                      643
                          a. Plaintiffs' Counsel's Record Keeping                         643
                          b. Total Number of Hours Reasonably Expended by Plaintiffs'     645
                              Counsel
                       3. Computation of Plaintiffs' Counsel's Lodestar                   648
                    C. Whether Plaintiffs' Lodestar Should Be Further Reduced for Time
                        Spent Before the Equal Employment Opportunity Commission
                        and the Iowa Civil Rights Commission                              649
                    D. Plaintiffs' Contested Claim for Expenses                           650
                VI. CONCLUSION                                                            651
                

II. INTRODUCTION AND BACKGROUND

This is an attorney fees dispute arising from a jury verdict on January 31, 1992, in favor of some of the Plaintiffs on their claims arising under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634 and for some of the Plaintiffs on some of their claims and for all of the Plaintiffs on one of their claims under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 101 et seq. The procedural background of this litigation is adequately summarized as follows:

On August 10, 1989, Plaintiffs filed suit against Sipco and Monfort under a number of theories, including the Employee Retirement Security Act (ERISA), the Age Discrimination in Employment Act (ADEA), Iowa Code Ann. secs. 601A et seq. (the Iowa age act), and numerous common law claims. Before trial, Plaintiffs dismissed their common law claims and proceeded under ERISA, the ADEA, and the Iowa age act. The case was tried to a jury, which awarded back pay and emotional distress damages to five of eight Plaintiffs under the age discrimination claims. Also under the age discrimination claims, the jury entered willfulness findings concerning the same five Plaintiffs. Under the ERISA claims, the jury found that six or seven Plaintiffs were entitled to severance pay. It also found three Plaintiffs were entitled to pensioner medical benefits under breach of contract and promissory estoppel theories, and all Plaintiffs were entitled to pensioner medical benefits under a breach of fiduciary duty theory. A post trial motion filed by Plaintiffs and granted by this Court allowed back pay to an additional two Plaintiffs. This Court also declared the ADEA violations by the Defendants to be willful.

Brief in Support of Defendants' Resistance to Plaintiffs' Application for Attorneys' Fees, pp. 1-2.

On December 4, 1992, the Honorable Harold D. Vietor entered an order referring Plaintiffs' application for attorneys' fees and disbursements to the undersigned. The order stated, inter alia:

Pursuant to 28 U.S.C. § 636(b)(1)(B), IT IS ORDERED that plaintiffs' application for attorneys' fees and disbursements is hereby referred to the Honorable Mark W. Bennett, United States Magistrate Judge for the Southern District of Iowa, to conduct a hearing if necessary and for submission of a report and recommendation regarding disposition of the motion to the undersigned.

Order of Reference and Other Orders, Dec. 4, 1992.

The question of Plaintiffs' entitlement to and the reasonableness of their requested attorneys' fees has been extensively briefed by both parties. A hearing was held on April 28, 1993. J. Russell Hixson and Terrence D. Brown of the Des Moines law firm of Gamble and Davis appeared on behalf of the Plaintiffs. William H. Bruckner of Bruckner & Sykes, Houston, Texas, appeared on behalf of the Defendants. The Defendants called J. Russell Hixson as a witness. Additionally, each of Plaintiffs' three primary counsel have filed affidavits. This matter is now fully submitted.

Plaintiffs seek reasonable attorney fees pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. The ADEA, unlike Title VII, 42 U.S.C. § 2000e-5(k), does not contain its own statutory attorney fee-shifting provision. Rather, in § 626(b) of the ADEA, Congress explicitly authorized private sector plaintiffs to recover attorney fees by incorporating § 216(b) of the Fair Labor Standards Act which provides in relevant part: "the court ... shall, in addition to any judgment awarded to the plaintiff ... allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 626(b) and § 216(b);² see e.g., Richardson v. Alaska Airlines, Inc., 750 F.2d 763, 765 (9th Cir.1984) ("The ADEA does not expressly provide for the award of attorney's fees. Instead, the ADEA incorporates the remedial provisions of the Fair Labor Standards Act...."); Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1051 (11th Cir.1989) ("A prevailing plaintiff in an ADEA action is entitled to award of reasonable attorney fees pursuant to 29 U.S.C. § 626(b) that incorporates 29 U.S.C. § 216(b) by reference.") (citations omitted), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990). Thus, the language of the ADEA differs significantly from Title VII and 42 U.S.C. § 1988 which grants attorney fees to successful parties in civil rights litigation. In each of those statutes, the trial court is granted discretion to award attorney fees "to prevailing parties as part of costs." Under the Fair Labor Standards Act, and thus the ADEA, attorney fees "shall" be awarded to the successful "plaintiff."³ Notwithstanding the differences in the language between the ADEA and other civil rights fee-shifting statutes, federal courts have generally recognized that "age discrimination cases commonly cite section 1988 cases on fee questions. ..." Heiar v. Crawford County, Wis., 746 F.2d 1190, 1203 (7th Cir.1984) (citations omitted), cert. denied, 472 U.S. 1027, 105 S.Ct. 3500, 87 L.Ed.2d 631 (1985); Drez v. E.R. Squibb & Sons, Inc., 674 F.Supp. 1432, 1445 (D.Kan.1987).

Plaintiffs also seek attorney fees under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 101 et seq. Under ERISA, there is a specific statutory grant of authority to award attorney fees, 29 U.S.C. § 1132(g).⁴

Section III of this Report and Recommendation addresses the contentions of the parties concerning Plaintiffs' application for attorney fees. Section IV contains the limited findings of fact relevant to Plaintiffs' application for attorney fees. Section V analyzes Plaintiffs' "lodestar" request, addresses Defendants' contentions seeking to limit or reduce Plaintiffs' lodestar request, and sets forth the methodology and calculation that the court utilizes in determining an award of reasonable attorney fees to the Plaintiffs.

III. THE CONTENTIONS OF THE PARTIES

A. The Plaintiffs' Contentions

Plaintiffs are requesting total fees and expenses as follows:

                      Dates                Fees           Expenses            Total
                04/18/88-07/31/92       $304,427.00       $18,217.46       $322,644.46
                08/01/92-12/31/92         27,041.00        11,004.15

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