Smith v. City of Bos., CIVIL ACTION NO. 12-10291-WGY
| Decision Date | 26 October 2020 |
| Docket Number | CIVIL ACTION NO. 12-10291-WGY |
| Parties | Bruce SMITH, Paul Joseph, John M. Johnson, Robert Tinker, Martin Joseph, Kim Gaddy, Brian Keith Latson, Leighton Facey, Kenneth Sousa, William Woodley, Marwan Moss, and LaTeisha Adams, Plaintiffs, v. CITY OF BOSTON, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Benjamin Weber, Harold L. Lichten, Zachary L. Rubin, Lichten & Liss-Riordan, P.C., Stephen S. Churchill, Fair Work, P.C., Boston, MA, for Plaintiffs Bruce Smith, Paul Joseph, Martin Joseph, Kim Gaddy, Brian Keith Latson, Leighton Facey, Marwan Moss, LaTeisha Adams.
Benjamin Weber, Harold L. Lichten, Lichten & Liss-Riordan, P.C., Stephen S. Churchill, Fair Work, P.C., Boston, MA, for Plaintiffs John M. Johnson, Robert Tinker.
Harold L. Lichten, Lichten & Liss-Riordan, P.C., Boston, MA, for Plaintiffs Kenneth Sousa, William Woodley.
Amy E. Condon, Bowditch & Dewey, LLP, Framingham, MA, John M. Simon, Kay H. Hodge, Thomas H. Costello, Stoneham, Chandler & Miller LLP, Nicole I. Taub, Boston Police Department, Boston, MA, for Defendant.
YOUNG, D.J.
This is a disparate impact civil rights case. After lengthy, complex, and extensive proceedings before the district court and First Circuit, this Court ruled in favor of the police-officer plaintiffs (the "Officers") against the City of Boston ("Boston") on their Title VII disparate impact claim arising from the 2008 lieutenants’ promotional exam, and awarded them damages in the form of back pay and interest totaling $484,865. ECF No. 308; see also Smith v. City of Boston (Smith I ), 144 F. Supp. 3d 177 (D. Mass. 2015) ; Smith v. City of Boston (Smith II ), 267 F. Supp. 3d 325 (D. Mass. 2017). Pursuant to Title VII of the Civil Rights Act and Chapter 151B of Massachusetts General laws, the Officers requested the award of attorney's fees in the amount of $1,689,985 and costs in the amount of $665,359, for a total request of $2,355,344.1 Pls.’ Pet. Att'ys Fees & Costs ( ) 1, 5, 26, ECF No. 309.
The Court here rules that the Officers are entitled to attorneys’ fees in the amount of $607,272.80, and costs in the amount of $346,372.00.
This case commenced in February 2012. ECF No. 1. The parties litigated the partial dismissal of the complaint, the issue of certificating a class, as well the cross-motions for summary judgement. ECF Nos. 28, 67, 70, 89, 94, 120, 255, 264. The Court bifurcated the case into liability and damages phases. ECF No. 98.
From a trial that lasted nine days, ECF Nos. 146-57, this Court ruled in 2015 in Smith I that Boston's 2008 lieutenants’ exam had a disparate impact on minority candidates and lacked job-relatedness, in violation of Title VII of the Civil Rights Act and its Massachusetts analogue, Chapter 151B. ECF No. 199. Soon after, the First Circuit in Lopez v. City of Lawrence, affirmed Judge O'Toole's rejection of a similar claim by plaintiffs challenging Boston's 2008 sergeants’ promotional exam. 823 F.3d 102 (1st Cir. 2016), cert. denied, ––– U.S. ––––, 137 S. Ct. 1088, 197 L.Ed.2d 181 (2017). The First Circuit then declined to review Boston's interlocutory appeal in the present case, suggesting this Court analyze the Officers’ claims in light of the Lopez decision. Smith II, 267 F. Supp. 3d at 328 (quoting ECF No. 229) ; see also ECF Nos. 225, 235, 236, 241, 242, 245, 247, 250. This Court did so and reaffirmed its Smith I decision on July 26, 2017. ECF No. 245.
Afterwards, this Court held a three-day trial in order to determine the damages suffered by the Officers as a consequence of being delayed or denied promotions based on the discriminatory exam. ECF Nos. 296-98. This Court entered judgement granting back pay and interest to the Officers. ECF Nos. 306, 308. The Officers, thereafter, filed their motion for attorneys’ fees and costs, that the parties have fully briefed. Pls.’ Pet.; Opp'n Pls.’ Pet. Att'ys Fees & Costs ("Def.’s Opp'n"), ECF No. 317.
Courts in the First Circuit follow the lodestar method to calculate reasonable attorneys’ fees and award them to prevailing parties in litigation. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994). According to this method, the court multiples "the number of hours productively spent by a reasonable hourly rate to calculate a base figure." Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). The Officers bear the burden to demonstrate that the requested number of hours expended by the attorneys are reasonable, and the court must exclude those hours that are "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Afterwards, the Court must determine the hourly fee which must equate to the "prevailing rates in the community" for lawyers of like "qualifications, experience, and specialized competence." Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001).
The parties do not dispute that the Officers prevailed in this litigation. Pursuant to Title VII of the Civil Rights Act and Massachusetts General Laws Chapter 151B, the Court in its discretion awards "reasonable attorney's fee (including expert fees)" and reasonable costs to the prevailing party. 42 U.S.C. § 2000e-5(k) ; Mass. Gen. Laws. ch. 151B, § 9 ; Fontanillas-Lopez v. Morell Bauza Cartagena & Dapena, LLC, 832 F.3d 50, 59 (1st Cir. 2016).
Boston is requesting a significant reduction of the Officers’ claim for attorneys’ fees and costs. Def.’s Opp'n 1. In particular, Boston asserts that the Officers are not entitled to any fees and costs associated with the litigation of the Lopez case, id. at 4, that fees should be reduced for unsuccessfully litigated issues such as the 2005 exam and the class action certification attempts, id. at 8-12, and that the Officers did not cause Boston to decide to move away from the multiple choice exam in 2014, id. at 13. Additionally, Boston asserts that the Officers’ attorneys engaged in improper block billing or billing with vague, generic entries that are not decipherable, id. at 15-17, failed to provide contemporaneous records, id. at 17-18, overstaffed the damages trial, id. at 19-20, and that the rates charged do not reflect the prevalent attorneys’ fees for the different points in time of a lengthy matter that began back in 2012, id. at 21-22. The Officers’ attorneys assert that the Lopez litigation was a necessary predicate for this litigation and that all hours and fees are reasonable and supported by the record. See generally Pls.’ Reply.
The Officers requested an award of fees and costs from the Lopez case totaling $977,951. Pls.’ Pet. 5. Their reasoning is that "the entire transcript and exhibits were introduced by agreement of both parties ... and both parties and the court relied on much of that trial record in this case." Id. at 4-5.
Title VII of the Civil Rights Act and Chapter 151B of Massachusetts General Laws authorize recovery of attorney's fees and costs only to the prevailing party. McDonough v. City of Quincy, 353 F. Supp. 2d 179, 183 (D. Mass. 2005). There is no doubt that Lopez rejected a similar claim challenging Boston's 2008 sergeants’ promotional exam, so the defendants -- not the plaintiffs -- were the prevailing parties.2 Lopez, 823 F.3d at 122 (). This Court shares the Sixth Circuit's concern about the Binta B. v. Gordon, 710 F.3d 608, 631 (6th Cir. 2013) (emphasis in original).
All attorney's fees and costs associated with the Lopez litigation are, therefore, disallowed.
The Officers consider the 1,880.9 hours spent in litigating two trials (liability and damages stages) and a remand from the First Circuit (to consider its decision in the Lopez case) to be reasonable. Pls.’ Pet. 8. It is without doubt that this case was properly and vigorously litigated by the parties, but this Court must adjust the requested number of hours to account for limited success in certain claims, as well as for the improper billing methods. Hensley, 461 U.S. at 434, 103 S.Ct. 1933.
The courts may discount for work performed in service of unsuccessful plaintiffs or claims when they diverged from the successful core facts and theory. Cf. System Mgmt., Inc. v. Loiselle, 154 F. Supp. 2d 195, 209-10 (D. Mass. 2001) ; Dixon v. International Bhd. of Police Officers, 434 F. Supp. 2d 73, 83-84 (D. Mass. 2006).
The complaint challenging the 2005 and 2008 lieutenants’ exams included Joseph Tinker and John Johnson among the plaintiffs. Compl. ¶¶ 1, 5-6, 13, 19, ECF No. 1. The Officers did not prevail on their claims. ECF No. 28. This Court, therefore, reduces by 20% the time logged by each attorney up until July 24, 2013. Id. Likewise, this Court reduces the time logged by 20% for unsuccessful claims from that date to December 16, 2014, when this Court ruled that there were no legitimate claims as to the 2005 exam. See ECF No. 150. The Officers also attempted to certify a class on October 18, 2013 which was denied on March 25, 2014; they later renewed their motion to certify the class on May 22, 2019 which was again denied on June 13, 2019. See ECF Nos. 47, 70, 255, 264. This Court reduces, by 10%, the time logged prior to the first denial (using the July 25, 2013 date as an...
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