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Whitford v. Sub-Line Associates, Inc.

United States District Court, N.D. Alabama, Southern Division

August 23, 2017




         This matter is before the court on “Plaintiff's Motion for Attorney's Fees and Expenses” (Doc. 57) and “Plaintiff's Supplement to Motion for Attorney's Fees and Expenses” (doc. 67). Defendant filed oppositions to these motions (docs. 59 & 68), and the Plaintiff replied (doc. 60) to the first response. For the reasons stated in this Memorandum Opinion, the court WILL GRANT in part and WILL DENY in part the motions.

         Ms. Whitford's original motion for fees and expenses seeks reimbursement for attorneys fees of $176, 375.00 and $8, 595.05 in costs for a proposed award of $184, 970.05. Her reply requests an additional $940 for preparing that document. The supplement requests an additional $4, 610.00 in fees to respond to the opposition brief and an additional $175.64 in expenses. Her original motion attached as Exhibit “A” the Declaration of her own attorney Jon Goldfarb, detailing his legal experience and that of his associates, including their hourly billing rates and those of those of the staff; presenting other facts, such as the contingency fee contract with Ms. Whitford and the history of his firm's representation of her; and opining that the time spent preparing for and litigating his case was reasonable and that the lodestar total is reasonable. Exhibit “B” is the itemized pre-bill listing work by attorney, hours, and rates; and also listing expenses. Exhibit “C” is a 2016 affidavit of Heather Leonard, who represented the Defendant in this case and who practices in Birmingham in the Northern District of Alabama and in the area of employment and civil rights litigation. This affidavit was prepared to support the fee petition of Wiggins Childs attorneys in another case, but counsel for the Plaintiffs filed and relied on it not only in that case but also the instant one. Ms. Leonard opined that the 2016 prevailing market rate in Alabama for skilled plaintiff's attorneys ranged from $275 to $550 per hour for non-contingent, litigation related work, and $85 to $150 for skilled paralegals. She specifically opined that the rates charged by the Plaintiffs' attorneys and paralegals in the other case, [2] which are the same as those charged in the instant case, were reasonable and consistent with the market rate in Alabama. Other attachments to the motion in this case are court opinions and orders that Ms. Whitford claims support the reasonableness of the requested award.

         A. Attorney Fees

         Ms. Whitford motion originally sought reimbursement for attorneys fees of $176, 375.00. When Sub-Line objected to this request, the Plaintiff sought an additional $940 to reply to the original motion and $4, 610.00 in fees for preparing the response to the motion to alter judgment, so the total fee award the Plaintiff now requests is $181, 925.00.

         The “starting point” in the objective determination of the value of lawyers' services is to calculate a “lodestar” figure, that is, “to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Hous. Author. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Supreme Court has “established a ‘strong presumption' that the lodestar represents the ‘reasonable fee' . . . .” Burlington v. Dague, 505 U.S. 557, 562 (1992) (citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)).

         In determining the lodestar figure, the court may take into account the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). The twelve Johnson factors clude:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (1) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Johnson, 488 F.2d at 717-19.

         1. Hourly Rates

         The first determination is whether the requested hourly rates are reasonable. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at1299 (citing Blum v. Stenson, 465 U.S. 886, 895-96 (1984)). The burden of producing satisfactory evidence that the rates proffered coincide with prevailing market rates rests upon the petitioner. Id. The relevant legal community in this case is the Northern District of Alabama. See Knight v. Alabama, 824 F.Supp. 1022, 1027 n. 1 (N.D. Ala. 1993) (“The relevant legal community is the area in which the court sits, which in this case is the Northern District of Alabama.”).

         Ms. Whitford asks the court to approve the following hourly rates as reasonable: Jon Goldfarb-$450; Daniel Arciniegas-$250; Lachlan “Will” Smith-$250; and Brooke Henderson (paralegal)-$100. Jon Goldfarb has 25 years of experience in civil rights and employment law litigation. Daniel Arciniegas graduated from law school in 2006 and has eight years of employment discrimination and civil rights litigation experience. Will Smith graduated from law school in 2009 and has at least seven years of civil rights and employment law litigation experience. The court has had the opportunity to observe these attorneys in numerous cases, and the court notes that their experiences and abilities well justify the requested rates.

         To support the reasonableness of her attorneys' fees, Ms. Whitford has offered the affidavit of Attorney Goldfarb (doc. 57-1) and an affidavit of Attorney Heather Leonard (doc. 57-3). Ms. Leonard, who was defense counsel for this case, prepared the affidavit for a separate discrimination case tried before this court in 2016, Henderson v. Mid-South Elec., Inc., Case No. 4:13-CV-1166. In her affidavit for the Henderson case, Ms. Leonard testified that the same rates listed above were reasonable for the same attorneys and paralegal. Ms. Leonard stated that Brooke Henderson's rate is reasonable for paralegal work and within the typical Alabama range of $85-$100 an hour. This court determined in Henderson that the same rates charged by the same attorneys and paralegal are reasonable in the Northern District of Alabama. See id., doc. 68 (Sept. 27, 2016).

         Sub-Line does not specifically object to the reasonableness of the fee rates listed, except to assert that the fee petition based merely on Jon Goldfarb's affidavit failed to provide sufficient evidence that the rates charged were reasonable. However, this argument ignores the affidavit of Heather Leonard, which does sufficiently address the reasonableness of the hourly rates of the same individuals.

         Consistent with the ruling in Henderson regarding hourly rates and the court's familiarity with the fine reputation and skills of the lawyers, and keeping in mind the information presented via affidavit and the relevant Johnson factors, the court FINDS that the attorney and paralegal hourly rates are reasonable and within the prevailing market rate in the Northern District of Alabama for similar services by lawyers and paralegals of reasonably comparable skills, experience, and reputation.

         2. Hours Reasonably Expended

         The next step in computing the lodestar figure is to establish the number of hours reasonably expended. See Norman, 836 F.2d at 1301. The Supreme Court requires a petitioner to exercise “billing judgment” in the hours submitted; “[h]ours that are not properly billed to one's client are not properly billed to one's adversary pursuant to statutory authority.” Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc) (emphasis in original)). If the petitioner submits “hours that are excessive, redundant, or otherwise unnecessary, ” the court should reduce the number of hours accordingly. Id. “[O]bjections and proof from fee opponents' concerning hours that should be excluded must be specific and ‘reasonably precise.'” ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 2000) (quoting Norman, 836 F.2d at 1301). “Finally, in determining reasonable hours the district court must deduct time spent on discrete and unsuccessful claims.” Norman, 835 F.2d at 1301 (citing Hensley, 461 U.S. at 435. The decision about what hours are reasonably necessary “must be left to the discretion of the court.” Norman, 836 F.2d at 1301 & 1304.

         In the instant case, Ms. Whitford requests reimbursement for 489.10 hours and attaches what she characterizes as “detailed documentation” of those hours. As to the original motion, Sub-Line asserts that the number of hours expended was not reasonable for the following reasons: (1) Ms. Whitford did not prevail on all claims and recovered only a fraction of the damages sought, so the outcome was not successful or was only partially successful within the meaning of the federal statute allowing for prevailing parties to recover a reasonable attorney's fee, 42 U.S.C. § 1988; (2) Ms. Whitford is precluded from obtaining attorney's fees on the state law claims; (3) Ms. Whitford failed to clearly identify which billing items were related to which claims, so the court should simply reduce all hours by 1/3; and (4) Jon Goldfarb's affidavit does not provide sufficient evidence of the reasonableness of the time incurred, because he is counsel for Ms. Whitford, and because many of the time entries are inadequately explained or documented. As to the supplemental motion, Sub-Line simply adopts its previous arguments without providing any specific information about the supplemental fee entries.

         The only claims on which Ms. Whitford is entitled to recover attorney fees are her successful federal claims, and the court agrees that she was only partially successful on her federal claims. The jury returned a verdict in her favor on two claims in Count I (Title VII sexual harassment claim and Title VII hostile work environment claim), and her claim in Count II (Title VII retaliation claim). However, as Sub-Line points out, Ms. Whitford did not succeed on the remaining federal claim: ...

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