Jan R. Smith Const. Co. v. DeKalb County, Civil Action No. 1:97-CV-3208-CAM.

• Decision Date: 09 September 1998
• Docket Number: Civil Action No. 1:97-CV-3208-CAM.
• Citation: 18 F.Supp.2d 1365
• Parties: JAN R. SMITH CONSTRUCTION COMPANY, a Georgia corporation, Plaintiff, v. DEKALB COUNTY, a political subdivision of the State of Georgia, Defendant.
• Court: U.S. District Court — Northern District of Georgia

Page 1365

18 F.Supp.2d 1365

JAN R. SMITH CONSTRUCTION COMPANY, a Georgia corporation, Plaintiff, v. DEKALB COUNTY, a political subdivision of the State of Georgia, Defendant.

Civil Action No. 1:97-CV-3208-CAM.

United States District Court, N.D. Georgia, Atlanta Division.

September 9, 1998.

Valle Simms Dutcher, Southeastern Legal Foundation, Inc., Atlanta, GA, Robert Jesse Proctor, Proctor Felton & Chambers, Atlanta, GA, for Plaintiff.

William Jacob Cobb, David F. Walbert, Walbert & Mathis, Atlanta, GA, Jonathan A Weintraub, Office of DeKalb County Attorney, Decatur, GA, for Defendant.

ORDER

MOYE, District Judge.

Plaintiff Jan R. Smith Construction Company filed this suit seeking to enjoin enforcement of the provisions of Defendant DeKalb County's affirmative action program relating to contracting and participation therein by minority and women business enterprises. After the case was filed, Defendant voluntarily suspended the programs at issue. This Court granted Defendant's motion to dismiss, finding that Plaintiff lacked standing to pursue the case. The case is now before the Court on Plaintiff's motion for attorney's fees pursuant to 42 U.S.C. § 1988. For the reasons stated herein, the motion is GRANTED in part and DENIED in part.

BACKGROUND

During the 1980's, DeKalb County adopted an affirmative action program which set minimum annual participation goals for Minority Business Enterprises and Women Business Enterprises in all contracts. In March, 1997, Defendant undertook a substantive review of its affirmative action program to determine if the policies were in conformance with developing law. Despite recommendations to the DeKalb County Board of Commissioners that the program be reevaluated, that a disparity study be conducted, and that the program be suspended or repealed, no action was taken.

On October 24, 1997, Plaintiff filed this suit seeking a permanent injunction prohibiting enforcement or application of Defendant's affirmative action program pursuant to 42 U.S.C. § 1983 and attorney's fees and costs pursuant to 42 U.S.C. § 1988.

The DeKalb County Board of Commissioners (Board) was served with the complaint at its October 28, 1997 meeting. Since consideration of the affirmative action program was not on the agenda, the Board suspended the rules to permit consideration of and action on the program. The Board adopted a resolution "to suspend the current Affirmative Action Program for Minority Contracting pending a disparity study; to ask the CEO to suspend the 10% minority preference that is (used) in purchasing procedures; and to keep the remainder of the Affirmative Action Program, besides contracting, in place." The motion adopted by the Board was immediately put into effect by the Chief Executive Officer. On November 12, 1997, the Board authorized the Chief Executive Officer to solicit proposals for conducting a disparity study.

At the same time this suit was filed, on October 24, 1997, Plaintiff filed a companion suit against the individual DeKalb County Commissioners, seeking monetary damages from them in their individual capacities. The complaint was never served on the defendants, and the suit was voluntarily dismissed by Plaintiff on October 29, 1997.

On November 19, 1997, David Walbert, attorney for Defendant, faxed a letter to Robert Proctor, attorney for Plaintiff. In the letter, Walbert agreed to recommend a settlement to the Board. The letter was in response to telephone conversations during which Walbert and Proctor discussed and agreed to certain terms of settlement, including that Plaintiff would dismiss the suit and Defendant would provide certain information to Plaintiff. The letter indicated the county's willingness to discuss attorney's fees but objected to the amount of $20,000 which had been proposed by Proctor. The letter requested additional information relating to the reasonableness of the proposed amount of fees and further suggested that, if necessary, matters relating to the merits of the case be settled, leaving the amount of fees open for later resolution, possibly through arbitration.

In response, on November 19, 1997, Proctor faxed a letter to Walbert. Proctor stated that "[e]verything looks good ... except with regard to attorney's fees." Proctor indicated that he was not willing to settle the case without settling the amount of attorney's fees and that he was not interested in arbitration. Proctor refused to provide "unedited time sheets" but stated that he had a total of 36 hours at the hourly rate of $300.00, that Brad Hutchins had a total of 23.65 hours at the hourly rate of $125.00, that Valle Simms Dutcher had a total of 18.5 hours at the hourly rate of $170.00, and that the out-of-pocket expenses were $1,001.33. Anticipating an additional $2,000 in fees and expenses, Proctor stated that his proposed $20,000 amount was "a firm number." Proctor further noted that he had removed from his calculations "any incremental time relating to the complaint against the commissioners individually."

On November 20, 1997, Walbert faxed a letter to Proctor again suggesting that the matters be bifurcated. Walbert suggested that it was "at best unseemly ... to force substantive litigation on the court because of a purely ancillary question about attorneys' fees."

In response, on November 20, 1997, Proctor faxed Walbert a letter stating that there was no basis for a settlement.

Defendant filed a motion to dismiss the complaint on December 1, 1997, which the Court granted on April 23, 1998, finding that Plaintiff did not have standing as its allegations of future injury were too speculative and hypothetical.

On May 18, 1998, Plaintiff filed the motion for attorney's fees and expenses which is now before the Court. Plaintiff contends it is the prevailing party and is therefore entitled to recover a full compensatory fee for all hours reasonably expended on this litigation. Plaintiff further contends its lead attorney should be compensated at his current hourly rate of $275 per hour rather than his prior hourly rate of $250 per hour to compensate for the delay in receiving payment. Plaintiff contends that all hours expended, including time spent on the companion suit that was dismissed before service, should be compensated as the results obtained by the litigation were excellent in that everything Plaintiff sought has been accomplished.

Defendant contends Plaintiff is not a prevailing party as the case was dismissed by the Court because Plaintiff lacked standing to pursue the claims and that Plaintiff is not entitled to an award of attorney's fees. Defendant contends Plaintiff is not entitled to recover either fees or expenses for any efforts relating to the companion suit as none of the relief sought in that suit was obtained. Defendant further contends that even if Plaintiff is deemed a prevailing party under the catalyst theory, recovery of attorney's fees would be unjust because of the special circumstances relating to Defendant's offer of settlement and Plaintiff's refusal to negotiate by insisting upon an unreasonable fee amount. Defendant also contends the special circumstances relating to Plaintiff's filing of the companion case would make recovery of attorney's fees unjust. Finally, Defendant contends that Plaintiff has failed to show that the hourly rates are reasonable, that the time spent was reasonable, or that the expenses were reasonably incurred.

LEGAL STANDARD AND ANALYSIS

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. "[A] prevailing plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render'" Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting S.Rep. No. 94-1011, p. 4 (1976)). In determining whether a party is entitled to attorney's fees pursuant to § 1988, a district court must first determine whether the party is a "prevailing party." Id. at 433, 103 S.Ct. 1933. If the party meets this threshold determination, the court must then "determine what[, if any,] fee is `reasonable.'" Id.

I. Prevailing Party

Although the Supreme Court has never upheld an award of attorney's fees for a plaintiff who had obtained neither a judgment nor a consent decree nor a settlement, the Court has repeatedly stated that a party need not have a formal judgment to be considered a "prevailing party." See, e.g., Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) ("A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e.g., a monetary settlement or a change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor."); Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (The standard for determining whether a plaintiff meets the statutory threshold of being a "prevailing party" is a "generous" one: "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."); Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) ("Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated."); Hanrahan v. Hampton, 446 U.S. 754, 756-57, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) ("[A] person may in some circumstances be a `prevailing party' without having obtained a favorable `final judgment following a full trial on the merits.'"). In support of these statements, the Court...