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King v. CVS Caremark Corp.

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

December 12, 2017

JAMES R. KING, Plaintiff,



         This 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.

         Mr. 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.

         After prevailing on his ADEA claim against CVS and accepting a remittitur, [1] 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).

         For the 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 Opinion.

         I. Discussion

         Mr. 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.

         A. Attorneys' Fees

         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. 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)).

         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).[2] 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 cases.

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.”).

         1. Reasonable Hourly Rate

         Mr. 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.

         The 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.

         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.”).

         The 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).

         Mr. 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).

         Alicia 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 experience.

         Mr. 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.

         Wilkinson 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.

         The 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).

         CVS 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).

         CVS 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).

         First, 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.

         Second, 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. Haynes'.

         The 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 ...

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