Starnes v. Hill, C-C-83-53-P.

• Decision Date: 07 June 1984
• Docket Number: No. C-C-83-53-P.,C-C-83-53-P.
• Citation: 589 F. Supp. 341
• Court: U.S. District Court — Western District of North Carolina
• Parties: Margaret Suzanne STARNES, Plaintiff, v. Charles Vernon HILL, Ralph Eugene Miller, James Michael Neff, Paul Douglas Scalf, Johnny Wayne Wagner, Charles L. Waldrep, and Gaston County, North Carolina, Defendants.

589 F. Supp. 341

Margaret Suzanne STARNES, Plaintiff, v. Charles Vernon HILL, Ralph Eugene Miller, James Michael Neff, Paul Douglas Scalf, Johnny Wayne Wagner, Charles L. Waldrep, and Gaston County, North Carolina, Defendants.

No. C-C-83-53-P.

United States District Court, W.D. North Carolina, Charlotte Division.

June 7, 1984.

George Daly, Charlotte, N.C., Nicholas Street, Gastonia, N.C., for plaintiff.

Frank B. Aycock, III, Nelson M. Casstevens, Frank E. Emory, Jr., Charlotte, N.C., Grady B. Stott and Jeffrey M. Trepel, Gastonia, N.C., Wayne Huckel, Charlotte, N.C., James C. Fuller, Jr., Raleigh, N.C., for defendants.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on petition by the Plaintiff's attorneys for attorneys fees.

The case is an action under 42 U.S.C. § 1983 which was settled before trial by the Defendants' agreement to pay the sum of $35,000 to the Plaintiff, plus attorney's fees, costs, and expenses. The award of attorney's fees is pursuant to 42 U.S.C. § 1988. The award of costs and expenses is pursuant to 28 U.S.C. § 1920 and Fed.R. Civ.P. 54(d).

Section 42 U.S.C. § 1988 provides in part "... In any proceeding to enforce a provision of 42 U.S.C. § 1981-83 ... the Court in its discretion may allow the prevailing party ... a reasonable attorney's fee as part of the costs."

The Plaintiff's attorneys are seeking a fee of $40,636.04 plus costs and expenses of $5,683.52.

The Court wants to say at the outset that this unseemly matter should never have had to come to this point. The Plaintiff's attorneys and the Defendants' attorneys have both displayed a most unreasonable position. By weight, it appears the petitions, memoranda and affidavits filed in this matter exceed the paper filed in the case in chief. This is exactly the sort of conduct and unreasonable attitude which has resulted in the lowering of the esteem in which the legal profession was held at one time in the distant past.

The Court further wants to make it very clear that what one judge has allowed an attorney in another case carries little weight in this Court. Each award depends on the facts and circumstances peculiar to the individual case. It is the responsibility of the individual judge to make an initial estimate of a reasonable fee by multiplying the number of hours reasonably expended in the litigation by a reasonable hourly rate. Blum v. Stenson, ___ U.S. ___, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). This Court will further consider the work done, the results obtained, and the other pertinent factors which are listed in the leading case of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), cited with approval by the Fourth Circuit in Anderson v. Morris, 658 F.2d 246 (4th Cir. 1981).

First, as to the time and labor required.

The time required in this case, according to the affidavits filed by the attorneys for the Plaintiff indicate 188.1 hours for Mr. Daly and 220.7 hours for Mr. Street with Mr. Daly billing at $120.00 per hour and Mr. Street billing at $80.00 per hour for a total of $40,228.00, (excluding Mr. Layton's time).

The Plaintiff recovered $35,000.00 in damages from the Defendants which Mr. Daly emphasizes is an excellent result. Obviously, if he considers this to be an excellent settlement, he must have known when he made the demand of $200,000.00 in January of 1983 that it was an unreasonable demand and in all likelihood would have been refused. By the same token, the attorney for the Defendants, Mr. Aycock, admitted in oral argument of this matter that he felt all along that this was a case which would result in a payment by Defendants, and yet he offered only $10,000.00. Mr. Aycock now states in his letter of May 24th to the Court: "At the time of our offer of $10,000.00 she had no known special damages at all, or at least none were asserted in her demand letter which is part of your file." However, according to Mr. Aycock's and Mr. Huckel's "Response to Petition for Attorney's Fees" filed in this Court on April 5, 1984, "Before Defendants were tried in the criminal court, Mr. Street wrote Sheriff Waldrep a letter on July 22, 1982, offering to accept a grand total of $60,000.00 for all losses, damages, costs, and attorney's fees."

After the Plaintiff testified in the criminal trial, Mr. Aycock's Response stated: "On November 19, 1982 after the defendants had been acquitted, Mr. Aycock offered Mr. Street a settlement of $10,000.00 by telephone. Mr. Aycock does not know how much higher the liability carrier would have gone, but there is no reason to suppose a higher offer would have been impossible to obtain." (Emphasis added). This indicates to the Court that defense counsel was remiss in not making a reasonable counter offer thus saving his clients not only his own fees, but the burden of paying the fees to be awarded to Plaintiff's counsel. Mr. Aycock, like Mr. Daly, is no novice in this field. Both attorneys are experienced, and are known by the bar to be very competent in this area of the law, Mr. Daly for the Plaintiff and Mr. Aycock for the defense. Both, therefore, owed a duty to the public, the Bar, and to their clients to assess the value of the case in a realistic manner and to attempt to settle the claim on a reasonable basis. The Court concludes that when Mr. Daly made the offer to accept $200,000 he was not interested in settling the matter which he eventually did settle for the far lesser sum of $35,000.00, which he concludes was an "excellent result", after building up thousands of dollars in attorney's fees. Mr. Aycock also made no attempt apparently to make sincere efforts to settle until the case was "on the calendar", when, by his own statement, he admits "there is no reason to suppose a higher offer would have been impossible to obtain" from his insurance carrier.

Obviously the Court has to consider both attorneys' obstinant actions in this matter when applying the usually considered factors in arriving at a reasonable attorney's fees.

Now, as to the other factors in Johnson v. Georgia Highway Express, supra:

(a) The novelty and difficulty of the questions.

This is not a novel or difficult case.

(b) Skill requisite to perform the legal services properly.

Mr. Daly demonstrated his usual skill in this type of case.

(c) Preclusion of other employment by the attorney due to acceptance of the case.

If anything, this case, as with all of Mr. Daly's cases of this type, increased his chances of other employment.

(d) The customary fee. Mr. Daly's request and Mr. Street's request are unreasonable with respect to their hourly rate and will be adjusted to a reasonable rate as set out hereinafter.

(e) Whether the fee is fixed or contingent.

Since the fees awarded will exceed the 25% contingency fee, this factor has no effect.

(f) Time limitations imposed by the client or the circumstances.

Not applicable.

(g) The amount involved and the results obtained.

The amount and results were most satisfactory especially in view of the Plaintiff's injuries being limited to emotional and mental distress.

(h) The experience, reputation, and ability of the attorneys.

Mr. Daly is an experienced attorney in Section 1983 actions. Mr. Street has been practicing since 1972 and has a general trial practice. Mr. Layton's experience is not set out.

(i) The undesirability of the case.

This type of case may have been undesirable in 1974 when Johnson v. Georgia Highway Express, Inc., supra, was decided, but is more or less routine now and not in the Court's opinion "undesirable."

(j) Nature and length of the professional relationship.

Mr. Street apparently had a previous professional or personal relationship with the Plaintiff; Mr. Daly apparently had not. In any event, it would seem to be of no consequence in this case.

(k) Awards in similar cases.

Although these awards may be some guide to the Court, each case, whether it was tried and other factors carry a great deal more weight than what was awarded in another case with which the Court is not familiar.

We return to the basic question of the number of hours the attorneys for the Plaintiff have asked to be compensated for and the rates per hour.

To begin with, the Court is going to disallow any fees for Mr. Layton because the hours represent duplication of effort and improper utilization of time. See, 488 F.2d at 717. Mr. Layton did not participate in any discovery or investigative work, he did not argue any motions, he did not draft any legal documents. In fact, the Court would not have known he was an attorney in this case if it had not been for the motion for attorney's fees. Further, the Court has no basis to judge his legal experience or ability as he never filed an affidavit of experience. To allow him $80.00 an hour for 20.2 hours would in effect be paying his law firm $160.00 an hour for what were apparently only discussions between Mr. Street and Mr. Layton about matters unknown. (Mr. Layton's requested fee was for $408.04 for 20.2 hours at $80.00 per hour. This was either a mathematical error or an intentional reduction. In either event, it is disallowed.)

Now, turning to Mr. Daly's petition. First, as to the rate per hour. The attorneys in this type of action have become accustomed to, as Mr. Aycock's Response notes, "scratching each other's backs;" i.e., it appears that everytime the Court is called upon to rule on a petition for attorney's fees the petitioner will call upon those members of the bar who work in this area to furnish affidavits stating what that attorney would charge per hour for this type of case. The attorneys always seem to increase the fees with each affidavit, all out of proportion to the rate of inflation, resulting in a never ending escalation of attorney's fees.

Based upon the affidavits submitted by the parties, legal fees now range from a low of $75.00 per hour to a high (the highest) of $150.00 per hour for in-court work. This case did not involve any "in-court" work. Having...