Walsh v. Boston University

Citation661 F.Supp.2d 91
Decision Date28 September 2009
Docket NumberCivil Action No. 04-11240-RGS.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Shannon E. Liss-Riordan, Harold L. Lichten, Leah M. Barrault, Lichten & Liss-Riordan, P.C., Boston, MA, for John Walsh.

Lawrence S. Elswit, Boston University Office Of General Counsel, Crystal D. Talley, Boston University, Boston, MA, for Boston University.


STEARNS, District Judge.

As I noted in a September 11, 2009 Memorandum and Order adopting Magistrate Judge Bowler's Recommendation with regard to the underlying dispute, this case, despite its superficial modesty, has a long and complex factual history. One might argue that this is not the sort of dispute that attorneys should be rewarded for pursuing to the bitter end (particularly in a case like this where neither side is without fault), as under the "American rule," parties are ordinarily expected to bear their own attorneys' fees. See Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). But in cases brought under the Americans with Disabilities Act, as well as the Family Medical Leave Act, Congress has decreed a different result. Under these statutes, fee-shifting is the law, not the exception, so long as the prerequisites of Buckhannon Bd. and Care Home, Inc. v. W. Virginia Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), are met.1 Here the Magistrate Judge concluded that plaintiff John Walsh is a "prevailing party" within the meaning of Buckhannon, and thus entitled to an award of attorneys' fees. I agree with her determination that the Buckhannon conditions have been satisfied: there has been a court-ordered "material alteration of the legal relationship of the parties," that order has been reduced to an enforceable judgment, and the judgment has been approved by the court. See Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. I also agree with the amount of the Magistrate Judge's proposed fee award. I have reviewed the fee petition and the hourly rates billed by counsel with care. I commend the Magistrate Judge for her careful paring of billings she deemed excessive, especially given her intimate familiarity with the convolutions of the litigation as demonstrated in her prior Report and Recommendation. She also appropriately reduced the requested lodestar amount of $103,035 by 30 percent, finding that Walsh had achieved a "limited (though not insubstantial)" success. See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 339 (1st Cir.1997). The Recommendation of an award of attorneys' fees in the amount of $72,124.50 and costs of $4,209.53 is therefore ADOPTED. The Clerk will enter judgment accordingly and close the case.



BOWLER, United States Magistrate Judge.

Presently pending before this court is a renewed motion for attorney's fees and costs filed by plaintiff John Walsh ("plaintiff"). (Docket Entry # 48). The motion raises an issue of first impression in this circuit regarding whether plaintiff, who obtained a Rule 68, Fed.R.Civ.P. ("Rule 68"), judgment in the amount of $15,000 in his favor, is a "prevailing party" within the meaning of the American Disabilities Act, 42 U.S.C. § 12205 ("ADA"). In addition to the ADA, plaintiff seeks a fee award under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"), and Massachusetts General Laws chapter 151B, section 9 ("chapter 151B").


Plaintiff, a former employee in the Office of Housing at Boston University, worked as Operations Manager, Residential Safety. Because of health conditions, including post traumatic stress disorder and depression, plaintiff missed a number of work days in 2001. He alleges that defendant Boston University ("defendant") did not make a reasonable accommodation of his disability in violation of the ADA or provide him with required leave time under the FMLA.

During his employment, plaintiff's supervisor allegedly harassed him not only because plaintiff took time off from work but also because he refused to terminate a handicapped employee and filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD"). (Docket Entry # 1, ¶ 1). In November 2001, defendant terminated plaintiff.

The complaint alleges five causes of action against defendant for violating the FMLA (Count I), chapter 151B (counts II and III), section 103 of Massachusetts General Laws chapter 93 ("chapter 93") (Count IV) and the ADA (Count V). In addition to other forms of relief, the complaint seeks "Attorney's fees and costs." (Docket Entry # 1).

In January 2005, the court issued a ruling on defendant's motion to dismiss (Docket Entry # 4). The court allowed the motion as to Count IV because "[c]hapter 151B is the exclusive remedy for employment discrimination claims" and denied the motion as to the remaining counts. In January 2007, the court denied defendant's motion for summary judgment (Docket Entry # 17) thereby leaving the parties' legal relationship unchanged.3 As a result of these rulings, only the FMLA, chapter 151B and ADA claims remain.

In March 2007, plaintiff filed the first of two motions for attorney's fees and costs. (Docket Entry # 33). One month later, defendant filed a motion "for relief of judgment" seeking to avoid the consequences of plaintiff's acceptance of defendant's $15,000 offer of judgment under Rule 68. (Docket Entry # 37). The March 6, 2007 Rule 68 offer of judgment sent to plaintiff's counsel, captioned "OFFER OF JUDGMENT PURSUANT TO FED. R. CIV. P. 68," reads as follows:

Trustees of Boston University, Defendant herein, offers to allow judgment to be taken against it in the sum of Fifteen Thousand Dollars ($15,000.00). This Offer is made pursuant to the provisions of Rule 68 of the Federal Rules of Civil Procedure and will be deemed withdrawn unless Plaintiff and/or his attorney serves written notice of acceptance within ten (10) days of the date this Offer was served on you. This Offer is not to be construed either as an admission of liability or that Plaintiff has suffered any damage as a result of the acts or omissions of Defendant.

(Docket Entry # 31). On Friday, March 16, 2007, plaintiff timely accepted the offer by filing the offer of judgment (Docket Entry # 31) and a notice of acceptance (Docket Entry # 32) with the court in conformity with Rule 68.

In August 2007, this court held a hearing on the first motion for attorney's fees (Docket Entry # 33) and the motion for relief from the "judgment" (Docket Entry # 37).4 One month later, this court issued a Report and Recommendation. (Docket Entry # 44).

As explained in the opinion (Docket Entry # 44, pp. 16-17), the three underlying statutes did not expressly include attorney's fees as part of "costs." Cf. Marek v. Chesny, 473 U.S. 1, 9, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (if underlying statute defines "costs" to include attorney's fees, then the term "costs" in Rule 68 will include such fees). By accepting the offer, Plaintiff thereby avoided the implications of the Marek decision. See King v. Rivas, 555 F.3d 14, 20 (1st Cir.2009) (dicta explaining that "where attorney's fees are allowed, the statutes sometimes include attorney's fees `as costs' and other times allow costs `and' attorney's fees, avoiding Marek"). The report and recommendation therefore examined the terms of the Rule 68 offer itself to ascertain whether it expressly or impliedly included attorney's fees. Finding the offer silent with respect to attorney's fees, this court detailed the reasons why it did not include fees. (Docket Entry # 44, pp. 18-40).

In conclusion, this court recommended denying the motion for relief from judgment and suggested that the clerk enter a Rule 68 judgment for $15,000 forthwith. This court also recommended denying the motion for attorney's fees and costs (Docket Entry # 37) without prejudice and allowing plaintiff the opportunity to renew the motion after the judgment issued. In November 2007, the court adopted the Report and Recommendation.

On December 12, 2007, the court entered a judgment in plaintiff's favor for $15,000. (Docket Entry # 46). The two sentence judgment expressly directed plaintiff to file the motion for attorney's fees within ten days.5 On December 26, 2007, plaintiff filed the presently pending motion for attorney's fees which incorporates the original motion and exhibits documenting the time and expenses incurred. (Docket Entry # 48). Defendant opposed the motion (Docket Entry # 49) and plaintiff filed a reply brief (Docket Entry # 52).

After this court set a hearing on the motion in February 2009, the parties engaged in more serious settlement negotiations. In late April 2009, defendant filed a motion to enforce a settlement. After conducting an evidentiary hearing, this court issued a second Report and Recommendation recommending the denial of the motion to enforce the settlement.


The issue of plaintiff's prevailing party status involves the intersection of the Rule 68 judgment and the Supreme Court's 2001 decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Defendant maintains that plaintiff is not a prevailing party because of the lack of a judge's substantive involvement in the merits. In addition to the lack of judicial imprimatur, defendant points out that plaintiff did not accomplish anything of social value. Given the absence of any "ongoing relationship that will be altered," defendant submits that the acceptance of the Rule 68 offer amounts to no more than a voluntary change in conduct that Buckhannon rejects as a basis for an...

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