United States District Court, N.D. Alabama, Eastern Division
JAMES R. KING, Plaintiff,
CVS HEALTH CORPORATION., Defendant.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
matter currently comes before the court on Plaintiff's
motions for attorney's fees and costs. On February 19,
2015, a jury returned a verdict in favor of Plaintiff James
R. King and against Defendant CVS on Mr. King's claims
under the Age Discrimination in Employment Act. (Doc. 153).
In accordance with this verdict, the jury awarded Mr. King
both compensatory and liquidated damages.
King initially filed ten counts consisting of four statutory
claims and various state law claims against CVS and a second
defendant, Cody Berguson. Before the trial, the court
dismissed all of Mr. King's statutory claims except the
age discrimination claim; dismissed one of Mr. King's
state law claims in full; and dismissed some of Mr.
King's other state law claims in part. The case proceeded
to trial on Mr. King's claims against CVS and Berguson on
the ADEA claim and five state law claims. At the close of Mr.
King's evidence, the court dismissed Berguson from the
case and dismissed all Mr. King's claims against CVS
except for the ADEA claim.
prevailing on his ADEA claim against CVS and accepting a
Mr. King received an award of $1, 230, 766.30. The court then
awarded Mr. King back pay in the amount of $266, 307.16 and
liquidated damages in the same amount for a total additional
award of $532, 614.32. (Doc. 264). This case is now before
the court on Mr. King's motion for attorney's fees
and costs (doc. 233), and supplemental motion for
attorney's fees (doc. 267). Mr. King asks this court to
award him $1, 077, 335.40 in attorney's fees (doc.
267-9); $19, 387.97 in expenses (doc. 234-21 at 11); and $17,
199.95 in statutory costs (docs. 187; 234-20).
reasons set out in this Memorandum Opinion, the court will
GRANT in part and DENY in
part Mr. King's motions for attorney's fees and
expenses. Specifically, the court will AWARD
Mr. King $889, 627.10 in attorneys' fees and $36, 160.46
in costs and expenses, for a total of $925, 787.56. The court
will enter a separate Order consistent with this Memorandum
King seeks recovery of his attorneys' fees, along with
costs and expenses, under 29 U.S.C. § 626(b),
incorporating 29 U.S.C. § 216(b) by reference, which
allows the court to award reasonable attorneys' fees and
court costs to the prevailing party in ADEA cases. CVS does
not contest Mr. King's status as a prevailing party, but
argues that his requested fee award is unreasonable because
(1) it seeks excessively high hourly rates for Mr. King's
attorneys; (2) the number of hours Mr. King's counsel
purportedly spent on the case is excessive; and (3) the fee
award should be reduced to reflect Mr. King's limited
success on his claims. In addition to these objections, CVS
also objects to specific statutory costs and litigation
expenses that Mr. King seeks in his Bill of Costs and Time
and Expense Report. The court will first determine an
appropriate award for attorney's fees, then an
appropriate award for costs and expenses.
“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. Auth. 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)
(Delaware Valley I)).
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.
See Hensley, 461 U.S. at 434 n.9. The twelve factors
are as follows:
(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; (10 the “undesirability” of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
Johnson, 488 F.2d at 717-19. Many of the
Johnson factors “are subsumed within the
initial calculation of hours reasonably expended at a
reasonable hourly rate.” Hensley, 461 U.S. at
434 n.9; see Delaware Valley I, 478 U.S. at 566
(reaffirming that “the lodestar figure includes most,
if not all, of the relevant factors constituting a
‘reasonable' attorney's fee.”).
Reasonable Hourly Rate
King provided an itemized billing statement that includes the
hours his attorneys worked on this case, along with their
hourly rates. (Doc. 267-9). The parties dispute the
reasonableness of those rates.
Supreme Court defines a “reasonable hourly rate”
as “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 at 1299 (citing Blum v.
Stenson, 465 U.S. 886, 895-96 n.11 (1984)). Mr. King
bears the burden of producing satisfactory evidence that the
rates proffered coincide with prevailing market rates.
See Norman, 836 F.2d at 1299; N.A.A.C.P. v. City
of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987)
(citing Blum, 465 U.S. at 896 n.11). To meet that
burden, Mr. King must offer “more than the affidavit of
the attorney performing the work.” Norman, 836
F.2d at 1299 (citing Blum, 465 U.S. at 896 n.11).
Satisfactory evidence would “speak to rates actually
billed and paid in similar lawsuits” and can be adduced
through either opinion evidence or direct evidence of
lawyers' fees charged in similar cases. Id.
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.”).
district court has discretion to “interpolate the
reasonable rate based upon an analysis of the skills . . .
which were exhibited by the attorney in the case at bar,
” and the market rates in the relevant community; where
the submissions regarding reasonable rates are inadequate,
the court may rely on its own expertise. Norman, 836
F.2d at 1301, 1303; see Hensley, 461 U.S. at 437
(emphasizing that the district court has discretion in
determining the amount of attorneys' fees awarded).
King has moved to recover attorneys' fees for five
attorneys and six paralegals who worked on his case. He asks
the court to find the following attorneys' hourly rates
reasonable: Alicia K. Haynes-$485; Kenneth D. Haynes-$440;
Charles E. Guerrier-$520; Leirin M. Ragan-$195; and Gina E.
Pearson-$335. He also asks the court to approve an hourly
rate of $125 for the six paralegals. (Doc. 267-9 at 2).
Haynes has practiced law in Birmingham, Alabama for
twenty-eight years, twenty-five of which she has exclusively
devoted to employment discrimination and civil rights
litigation. (Doc. 185-1 at 3). She has tried dozens of jury
cases, served as First Vice President of the National
Employment Lawyers Association, and regularly speaks on
employment discrimination and civil rights at continuing
legal education seminars. Kenneth Haynes has been practicing
law since 1991, and has devoted the last 16 years primarily
to representing plaintiffs in employment matters, including
employment discrimination. (Doc. 185-2 at 3). He has spoken
at continuing legal education seminars on employment
discrimination and was listed as a Super Lawyer in the area
of employment law in Alabama for five consecutive years.
Charles Guerrier was recently elected as President of the
Alabama Chapter of NELA, and was a trial attorney for the
EEOC until retiring in 2012. His career dates back to 1972,
and he has litigated in numerous jurisdictions across the
country since 1974. (Doc. 185-3 at 1-15). Gina Pearson has
practiced law for approximately sixteen years, and Leirin
Ragan is a relatively new attorney with less trial
King produced affidavits (doc. 185-10 -13) from the following
attorneys to support the reasonableness of his attorneys'
fees: (1) Cynthia Wilkinson, a member of the Alabama bar with
twenty-one years of experience in civil rights and other
complex federal court litigation; (2) Candis McGowan, a
Birmingham attorney who has focused her practice on
employment and civil rights litigation since 1988; (3)
Heather Leonard, a Birmingham attorney who has focused her
practice on the area of employment and civil rights
litigation since 1998; and (4) John Saxon, named one of the
Top 50 Lawyers in Alabama by Super Lawyers and specializing
in the area of employment law.
and Leonard agree that $475 is a reasonable hourly rate for
Alicia Haynes, while McGowan's and Saxon's
suggestions are $450 and $500, respectively. All four of the
affiants agree that $500 is a reasonable rate for Charles
Guerrier. The four affiants' estimates for Kenneth Haynes
range from $385 to $450. Estimates for Leirin Ragan range
from $185 to $200, and range from $300 to $325 for Gina
Pearson. For paralegals, all estimates fall within the range
of $100 to $150.
affiants' numbers suggest that Mr. King's
attorneys' requested rates may be moderately inflated.
More specifically, taking the median of their respective
numbers, their testimony reflects the following reasonable
hourly rates: Alicia Haynes-$475 ($10 less than the amount
Mr. King seeks); Kenneth Haynes-$417.50 ($22.50 less than Mr.
King's amount); Charles Guerrier-$500 ($20 less than Mr.
King's amount); Leirin Ragan-$192.50 ($2.50 less than Mr.
King's amount); and Gina Pearson-$312.50 ($22.50 less
than Mr. King's amount).
objects to Mr. King's attorneys' rates on two bases.
First, CVS argues Mr. Guerrier's experience practicing as
a Birmingham-area plaintiff's attorney is quite limited,
and thus the rate he seeks is unreasonably high. Second, CVS
argues none of Mr. King's attorneys “opined that
this case was particularly novel or difficult to litigate,
that they were precluded from other employment due to this
case, that King or the circumstances imposed time limitations
upon them, that this case was particularly undesirable, or
that they did not recognize the evidence was previously
developed in another case.” (Doc. 247 at 9-10).
produced affidavits from Jay St. Clair and Arnold Umbach,
III, two experienced labor and employment attorneys in
Birmingham, Alabama. (Docs. 247-1; 247-2). They assert Mr.
King's attorneys' reasonable hourly rates should be:
$400 to $415 for Alicia Haynes; $345 to $365 for Kenneth
Haynes; $400 to $415 for Charles Guerrier; $250 to $290 for
Gina Pearson; $160 to $165 for Leirin Ragan; and $110 to $115
for all paralegals. (Doc. 247 at 11). Both Mr. St. Clair and
Mr. Umbach, III understand the “top of the
market” hourly rate for employment litigators in
Birmingham to be in the range of $350 to $440 per hour.
(Docs. 247-1; 247-2). Mr. St. Clair also noted that in 2015,
Magistrate Judge England of the Northern District of Alabama
found rates of $420, $370, and $475 to be reasonable rates
for Alicia Haynes, Kenneth Haynes, and Charles Guerrier,
respectively. (Doc. 247-1 at 6).
the court notes that both Mr. St. Clair and Mr. Umbach, III
are experienced attorneys whose practices focus on defending
employers in labor and employment suits. The Johnson
factors “customary fee, ” “fixed or
contingent fee, ” and “nature and length of the
professional relationship with the client” require the
court to distinguish between contingent fee rates sought by
plaintiffs' employment attorneys and rates charged by
defendants' employment attorneys, who get paid regardless
of the outcome of the case. Plaintiffs' lawyers, by
nature, frequently work on a contingency fee basis. Defendant
companies often have ongoing relationships with their
attorneys that enable them to pay lower hourly rates.
CVS's argument that Mr. Guerrier's time is
necessarily less valuable than Ms. Haynes' is
unpersuasive. As Mr. St. Clair concedes, Mr. Guerrier has
“extensive knowledge and experience in the area of
labor and employment law due to his 42 years of being an
attorney in that arena.” (Doc. 237-1). Also, Mr.
Guerrier has practiced employment law in 19 federal
districts, has represented clients in the Supreme Court of
the United States and five separate Courts of Appeals, and
has taught employment law for 18 years. His relatively short
stint in Birmingham should not preclude Mr. Guerrier from
collecting an hourly rate proportional to his experience. As
noted above, Mr. St. Clair brought to the court's
attention that Magistrate Judge England determined Mr.
Guerrier's reasonable rate to be greater than Alicia
Haynes'. (Doc. 247-1 at 6). The court is not convinced
that Mr. Guerrier's services are less valuable than Ms.
court has considered the other Johnson factors and
finds that the requested hourly rates for Alicia Haynes,
Kenneth Haynes, Charles Guerrier, Leirin Ragan, and Gina
Pearson are slightly above the prevailing market rate in the
Northern District of Alabama for similar services by lawyers
of reasonably comparable skills, experience, and reputation.
The court bases this conclusion on its ...