Walker v. Ralston Purina Co., Civ. A. No. 2908.

• Decision Date: 27 February 1976
• Docket Number: Civ. A. No. 2908.
• Parties: Ernest WALKER et al., Plaintiffs, v. RALSTON PURINA COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

409 F. Supp. 101

Ernest WALKER et al., Plaintiffs, v. RALSTON PURINA COMPANY, a corporation, et al., Defendants.

Civ. A. No. 2908.

United States District Court, M. D. Georgia, Macon Division.

February 27, 1976.

O. Peter Sherwood, Johnny J. Butler, New York City, Bernice Turner, Macon, Ga., for plaintiffs.

Edward S. Sell, Jr., Sell, Comer & Popper, Macon, Ga., Donald W. Rupprecht, Labor Counsel, Ralston-Purina Co., St. Louis, Mo., for defendants.

Matt Shade, Shade & McDonald, Atlanta, Ga., for Unions.

AWARD OF ATTORNEYS' FEES AND COSTS

OWENS, District Judge.

This two year racial discrimination employment legal battle between present and former black employees of Ralston Purina Company's Macon, Georgia, plant on one side and Ralston Purina Company, the International Retail, Wholesale and Department Store Union, AFL-CIO and its Local Union 315 on the other side ended with the entry on September 30, 1975, of a consent decree that resolves all issues except attorneys fees and costs. That decree states:

"V. COST

"Costs shall be assessed by the Court."

* * * * * *

"VII. ATTORNEY'S FEES

"After a hearing or the submission of briefs, the Court shall fix the amount of reasonable attorney's fees to which plaintiffs are entitled and the share of said costs and attorney's fees to be borne by the respective defendants."

Affidavits and briefs having been submitted and considered this constitutes the court's order fixing reasonable attorneys' fees and assessing costs.

The amount of attorneys' fees is left to the sound discretion of the trial judge, Culpepper v. Reynolds Metals Co., 442 F.2d 1078 (5th Cir. 1971), it being acknowledged that the court is itself an expert on the question of attorneys' fees and as such may form its own independent judgment. Weeks v. Southern Bell Tel. & Tel. Co., 467 F.2d 95 (5th Cir. 1972); Massachusetts Mutual Life Insurance Co. v. Brock, 405 F.2d 429 (5th Cir. 1968); Davis v. Board of School Com'rs of Mobile County, 526 F.2d 865 (5th Cir. 1976). In exercising its sound discretion the court is required to consider the standards and guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). In doing so it is important to keep in mind the introductory portion of that opinion, to wit:

"1 Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5(k), provides that:

In any action or proceeding under this subchapter the Court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the cost of litigation.

The purpose of this provision is to effectuate the congressional policy against racial discrimination. Clark v. American Marine Corp., 320 F.Supp. 709 (E.D.La.1970), aff'd, 437 F.2d 959 (5th Cir. 1971). In discussing a similar provision in Title II, the United States Supreme Court observed that

If the plaintiff obtains an injunction, he does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees—not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief . . .

"Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). This Court, as part of its obligation `to make sure that Title VII works,' has liberally applied the attorney's fees provision of Title VII, recognizing the importance of private enforcement of civil rights legislation. See Clark v. American Marine Corp., supra; Rowe v. G. M. Corp., 457 F.2d 348 (5th Cir. 1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. Southern Home Sites Co., 444 F.2d 143 (5th Cir. 1971)." Id. at 716.

and the admonition of that court that:

"7 We are mindful of the difficult job of the trial judge in cases of this kind, and that in all probability his decision will be totally satisfactory to no one. . . . The trial judge is necessarily called upon to question the time, expertise, and professional work of a lawyer which is always difficult and sometimes distasteful. But that is the task, . . ." Id. at 720. (emphasis added).

The plaintiffs from the outset were represented by Bernice Turner, a black female attorney who graduated from Emory University School of Law in June 1970, was admitted to the practice of law in May 1971 and has practiced law in Macon since August 5, 1971. She is one of only three black lawyers who generally represent black citizens of this large metropolitan area in civil rights cases. In her appearances in this court over a period of some three or more years she has very effectively prepared and presented the cases of her clients. Ms. Turner's affidavit shows that she has devoted some 676 hours to the preparation of plaintiffs' case. She requests that she be allowed reasonable attorneys' fees for 577 of those 676 hours already spent and that the court also allow for an estimated 125 hours to be spent by her during the three year life of the consent decree.

John Butler and O. Peter Sherwood are 1971 law graduates employed by the NAACP Legal Defense & Educational Fund, Inc. located in New York City. They have each assisted Ms. Turner to a limited extent in this case, Mr. Butler since early 1975 and Mr. Sherwood thereafter. Though admitted only four years ago to the practice of law Mr. Sherwood from the court's observation has acquired and demonstrates an expertise in employment discrimination cases. Mr. Butler devoted 32 hours and Mr. Sherwood devoted some 64 7/12 hours to plaintiffs' case. It is estimated that Mr. Sherwood will also spend an additional 20 hours during the three year life of the court decree.

Plaintiffs costs in the amount of $3,428.01 are submitted. Future costs are estimated at $250.00.

Plaintiffs move the court to allow reasonable attorneys' fees computed on the aforesaid billable hours at the following hourly rates:

Ms. Turner—$50 per hour plus $10 per hour in consideration of the case having been pursued on a contingent fee basis;

Mr. Sherwood—$75 per hour;

Mr. Butler—no suggested hourly rate.

Plaintiffs support these requests with affidavits from able, known trial practitioners showing that those suggested hourly rates are consistent with rates being charged by and paid to attorneys of similar experience in comparable matters.

Defendant Ralston submitted an affidavit showing the time devoted to this case by its salaried, full-time attorney Donald W. Rupprecht. Mr. Rupprecht in the court's opinion is a seasoned, experienced employee relations attorney who like Mr. Sherwood can properly be labeled an expert in cases of this nature. He states that he devoted only 171 hours to his client's case thereby in effect suggesting that plaintiffs' counsel Ms. Turner has devoted a much greater time than was reasonably necessary to plaintiffs' case. Mr. Rupprecht states that he was assisted by non-lawyer personnel who devoted 56 hours to this case. Ralston was also represented by Ed Sell, Jr., one of the most capable and most experienced members of the bar of this court. The time he devoted to this case has not been stated. His expertise in employment cases is demonstrated by his representative in this court and upon appeal of the Macon Telegraph in Willingham v. Macon Telegraph Publishing Co., 352 F.Supp. 1018 (M.D.Ga.1972), reversed, 482 F.2d 535 (5th Cir. 1973), aff'd en banc, 507 F.2d 1084 (5th Cir. 1975).

Defendant unions suggest that the International Union on account of their having not been named in the charge filed with the Equal Employment Opportunity Commission cannot be ordered to pay attorneys' fees, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d...