CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE.
The jury returned a verdict in favor of Crystal Trawick and against her former
Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, Carmike renews its motion for judgment as a matter of law that it made at trial.
As the prevailing party, Trawick is entitled to recover her attorney's fees. Her motion for attorney's fees (ECF No. 203) is granted to the extent that the Court awards Trawick attorney's fees in the amount of $659,433.27. Trawick's motion for nontaxable litigation expenses (ECF No. 223) is denied because it was untimely. But, she may recover taxable costs in the amount of $24,239.85. An amended judgment shall be entered in favor of Trawick against Carmike in the amount of $1,050,790.91.
Carmike is entitled to judgment as a matter of law if "a reasonable jury would not have a legally sufficient evidentiary basis to find for" Trawick on her Title VII wage discrimination claim. Fed. R. Civ. P. 50(a) & (b). Overturning a jury verdict is a substantial burden. "Judgment as a matter of law is appropriate `only if the facts and inferences point overwhelmingly in favor of one party, such that reasonable people could not arrive at a contrary verdict.'" Equal Emp't Opportunity Comm'n v. Exel, Inc., 884 F.3d 1326, 1329 (11th Cir. 2018) (quoting Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1275 (11th Cir. 2008)). If Trawick presented "enough evidence to create a substantial conflict in the evidence on" the essential elements of her claim, Carmike's Rule 50(b) motion must be denied. Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005).
In evaluating Carmike's Rule 50(b) motion, the Court must "consider all the evidence, and the inferences drawn therefrom, in the light most favorable to" Trawick. Exel, Inc., 884 F.3d at 1329 (quoting Goldsmith, 513 F.3d at 1275). The Court may "not second-guess the jury or substitute [its] judgment for [the jury's] judgment if [the jury's] verdict is supported by sufficient evidence." Id. (quoting Lambert v. Fulton Cty., 253 F.3d 588, 594 (11th Cir. 2001)). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "Thus, although the court
Carmike argues that no reasonable jury could have reached the verdict delivered in this case based on the evidence presented at trial. Carmike misunderstands the evidentiary record or the legal standard for judgment as a matter of law. Although the evidence was certainly in conflict and a jury could have found in Carmike's favor, there was ample evidence to support the jury's conclusion that Carmike paid Trawick lower compensation than a similarly situated male employee and that Carmike used Trawick's sex as a motivating factor when it made decisions regarding Trawick's compensation. Thus, that verdict cannot be disturbed. Carmike's motion for judgment as a matter of law on Trawick's Title VII wage discrimination claim is denied.
Carmike contends that even if the evidence supported the jury's verdict awarding compensatory damages to Trawick, no evidence existed from which a reasonable jury could find that punitive damages were appropriate. Defendant acknowledges that the Court properly instructed the jury on punitive damages as follows: Trawick is only entitled to punitive damages if she proved that Carmike "acted with either malice or with reckless indifference toward ... Trawick's federally protected rights." Jury Instructions 26, ECF No. 198. The Court further instructed the jury that an "employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees' acts are contrary to the employer's good faith efforts to comply with the law" but that "the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective." Id. at 27. Here, there was enough evidence presented at trial to support the jury's conclusion that a Carmike employee acting in a managerial capacity either acted with malice or with reckless indifference to Trawick's federally protected rights and that Carmike's anti-discrimination policies were ineffective. Therefore, Carmike is not entitled to judgment as a matter of law on Trawick's claim for punitive damages. Carmike's Rule 50(b) motion is denied.
As the prevailing party in this action, Trawick may recover "a reasonable attorney's
"Fee-shifting statutes allow counsel for the prevailing party to recover a reasonable fee." In re Home Depot Inc., 931 F.3d 1065, 1082 (11th Cir. 2019). "A reasonable fee is one sufficient to attract competent counsel to represent the case, but not one that provides a windfall for attorneys." Id. In statutory fee-shifting cases like this one, the lodestar method is the "guiding light." Id. at 1081 (quoting City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). The lodestar "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "There is a strong presumption that the lodestar yields a reasonable fee...." In re Home Depot Inc., 931 F.3d at 1082.
Carmike argues that Trawick's lodestar request is unreasonable because Trawick had a contingency fee arrangement with her attorney providing for a 40% recovery, and she only achieved a judgment of $367,117.79. Carmike suggests that the Court should impose a 60% across-the-board reduction to the requested fee based on the contingency fee arrangement. Carmike did not cite any binding precedent in support of this argument.
This does not mean that a plaintiff can recover whatever her counsel charges her; a defendant cannot be gouged based upon the contract between a plaintiff and her counsel. The fee must be reasonable. But neither should a defendant be gratuitously awarded a windfall solely because of the existence of a contingency fee contract. As the Supreme Court observed, a reasonable attorney's fee "contemplates reasonable compensation, in light of all of the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less." Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). So, if a fee agreement provides "less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount." Id. The Court rejects Carmike's argument that it should make an across-the-board reduction to the lodestar request based on the contingency fee agreement, and it will calculate the lodestar.
Trawick presented evidence of reasonable hourly rates for employment discrimination cases in the Middle District of Georgia, and Carmike does not object to the claimed hourly rates of the following members of Trawick's legal team: lead counsel Mary A. Prebula ($425.00), contract attorney Jennifer S. Ivey ($250.00), law clerk Canon T. Corbitt ($175.00), and legal assistant/paralegal Holly L. Smith ($145.00). Carmike does object to the $215.00 claimed hourly rate of Caroline L. Harwell, who served as an unlicensed law clerk from August 1, 2017 to November 16, 2017 and as a first-year associate attorney from November 17, 2017 to August 15, 2018. Trawick presented evidence that the market rate for a first-year associate in the Middle District of Georgia is between $150.00 and $225.00 per hour, and the market rate for an unlicensed law clerk is between $150.00 and $175.00 per hour. Legare Aff. ¶¶ 18-19, ECF No. 203-10; Newsom Aff. ¶¶ 17-18, ECF No. 203-11. Based on this evidence, the Court finds that $215.00 is a reasonable hourly rate for Harwell's work as a first-year associate attorney, and $175.00 is a reasonable hourly rate for Harwell's work as an unlicensed law clerk.
The next step in figuring the lodestar is to determine the number of hours reasonably expended. "Time spent is reasonable, and thus compensable, if it would be proper to charge the time to a client." In re Home Depot Inc., 931 F.3d at 1087. "As with a client, counsel should not include in the lodestar hours that are `excessive, redundant or otherwise unnecessary.'" Id. (quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988)). The Court must "deduct unnecessary or redundant hours and time spent upon `discrete and unsuccessful claims' from the calculations." Duckworth v. Whisenant, 97 F.3d 1393, 1397 (11th Cir. 1996) (quoting Norman,
Here, Trawick's counsel represents that she removed hours that were duplicative or not reasonably necessary for the effective representation of Trawick. Counsel also asserts that she removed time spent on Trawick's unsuccessful claims to the extent that the time was not intertwined with Trawick's successful Title VII wage discrimination claim.
Carmike contends that the Court should exclude time that it contends Trawick's legal team spent on discovery and trial preparation for unsuccessful claims. Carmike points to a handful of time entries that it contends are solely for these unsuccessful claims, plus it argues for an across-the-board reduction of 60% to account for Trawick's unsuccessful claims.
Trawick agrees that her counsel should not be compensated for completely unsuccessful motions, such as the unsuccessful spoliation and contempt motions, the unsuccessful motion for reconsideration, and the unsuccessful motion to disqualify. Carmike points out that Trawick's counsel did not deduct 0.3 hours by Ms. Harwell on April 26, 2018 for work on the unsuccessful motion for spoliation sanctions; that time shall not be included in the lodestar. Carmike also notes that Trawick's attorney spent 0.8 hours drafting a motion to exceed page limits that was never filed. Trawick reduced the time sought for this unfiled motion to 0.24 hours, but she did not explain why this time sought is reasonable or state that she would charge a paying client for such work, so this time shall be excluded from the lodestar.
Carmike highlights that although counsel subtracted the time Ms. Prebula spent on the actual motion to disqualify Mr. Gristina, she did not subtract the hours spent on researching the issue before she filed the motion. It was not unreasonable for Ms. Prebula to research the issue, and the Court declines to strike these hours. Carmike further contends that Trawick
Carmike objects to fifty-five time entries as impermissibly vague because they are for things like "email re status" and "telephone calls with counsel re issues."
Carmike also points out that several entries are incomplete on at least one of Trawick's exhibits, arguing that it is impossible to tell what is included. Carmike is correct that the time entries are cut off on Exhibit A, the original bill, but they are not cut off on Exhibit D, billing by individual, so Carmike should have been able to determine what tasks are covered by each entry. The Court declines to make reductions on this basis.
Carmike identified a number of time entries that it contends are redundant or excessive. First, Carmike objects to the 99.3 hours (reduced to 74.8) that it contends Mr. Corbitt and Ms. Harwell billed solely for responding to Carmike's statement of material facts. Based on the Court's review, most of these time entries are for work on the response to the statement of material facts and the summary judgment response. The Court finds this time reasonable.
Second, Carmike points out that Mr. Corbitt billed more than forty hours to summarize the deposition of Shannon Sailors.
Third, Carmike notes that in the days leading up to trial, Trawick's trial team spent significant time preparing witness outlines and exhibits. It is not unusual for multiple lawyers to expend considerable time on such tasks within a week or two of the trial date or to communicate with each other regarding these tasks, and the Court does not find that this amount of time was excessive or redundant.
Fourth, Carmike objects to the fact that Ms. Prebula, who was Trawick's lead counsel and has the highest hourly rate, performed much of the work instead of delegating more tasks to one of her associates (who was only employed with Ms. Prebula until August 2018), a contract attorney, or a part-time unlicensed law clerk. Given the small size of Ms. Prebula's firm and the relative experience of the members of her team, it was not unreasonable for Ms. Prebula to perform much of the work.
Fifth, Carmike objects to 1.5 hours Ms. Prebula billed on August 11, 2018 for "Review Defendant USB purporting to be exhibits" even though she later stated to the Court that she did not review the USB drive. Ms. Prebula clarified that this time entry was for her response to Carmike's inadvertent disclosure of privileged documents. According to Ms. Prebula, although an associate reviewed the files on the USB drive, she did not; rather, she reviewed the issue so that she could resolve it. The Court finds that this time was reasonably expended.
Sixth, Carmike asserts that it was excessive for Trawick's legal team to bill approximately forty hours for responding to Carmike's motion in limine regarding the designations for Lisa De La Cruz's deposition. While this is a large number of hours for the task of responding to each of Carmike's objections, it is not patently unreasonable. The Court declines to strike it.
Seventh, Carmike argues that because Trawick only referred to several days of Fred Van Noy's calendar at trial, she should not recover any time associated with the calendar or her forensic expert. It was not unreasonable for Trawick's legal team to review the contents of the calendar, and this time shall not be excluded.
Finally, Carmike argues that Ms. Prebula and Mr. Corbitt should not have billed 13.4 hours each for the final day of trial given that the jury was deliberating that day. The jury started deliberating at 9:00 a.m., the jury returned a verdict late in the afternoon, and the Court adjourned at 6:48 p.m. Then, according to the time records, Trawick's counsel returned to Atlanta. Defendants did not object to the travel time and did not present any authority that it is unreasonable for a lawyer to bill a client for time spent in court waiting for a jury to return a verdict. The Court finds that this time was reasonably expended.
Carmike pointed to ninety-three entries that it contends are for clerical tasks and argues that these entries should be excluded from the lodestar calculation. A court may make a reduction for clerical tasks billed at attorney or paralegal rates; the Supreme Court has noted that "purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer] rate" because "[s]uch non-legal work may command a lesser rate" and "[i]ts dollar value
The Court reviewed the time entries Carmike flagged as being clerical work performed by a paralegal or attorney or paralegal work performed by an attorney. Many of these entries fall into "a gray area of tasks that might appropriately be performed either by an attorney or a paralegal," and the Court declines to exclude them. Jenkins, 491 U.S. at 288 n.10, 109 S.Ct. 2463. Twenty-five of the entries (63.53 hours), however, appear to be purely clerical: applying Bates numbers to documents, mailing and emailing correspondence, and downloading, organizing, and printing documents. Although Trawick contends that Ms. Smith served as "legal assistant/paralegal," and pointed to a reasonable hourly rate for Ms. Smith's paralegal work, e.g., Legare Aff. ¶ 19, Trawick did not point to evidence of a reasonable hourly rate for purely clerical work. In the absence of such evidence, the Court awards the federal minimum wage of $7.25 per hour for these 63.53 hours, for a total of $460.59.
Based on the foregoing considerations, the lodestar amounts to $659,433.28, as reflected in the table below:
Name Rate Hours Total
Prebula $425.00 969.465 $412,022.63
Ivey $250.00 119.000 $29,750.00
Harwell — LC $175.00 132.900 $23,257.50
Harwell — AA $215.00 240.620 $51,733.30
Corbitt $175.00 523.805 $91,665.88
Smith $145.00 348.575 $50,543.38
Clerical $7.25 63.53 $460.59
TOTAL 2,397.90 $659,433.28
After the Court calculates the lodestar, the Court may adjust the fee upward or downward based on the results obtained. Hensley, 461 U.S. at 434, 103 S.Ct. 1933; accord Norman, 836 F.2d at 1302. The Court remains mindful of the "strong presumption" that the lodestar figure represents a reasonable fee. In re Home Depot Inc., 931 F.3d at 1082. But the Court also understands that even if the hours and rates are reasonable, a downward adjustment to the lodestar may be merited if the prevailing party was only partially successful in her efforts. Carmike argues that Trawick was only partially successful because she only prevailed on one of her claims at trial; Carmike suggests a 60% reduction to the lodestar. Carmike seeks this reduction in addition to any reduction in hours the Court makes for work on distinct unsuccessful claims. Carmike's argument based upon a crude "percentage of victory formula" ignores the interrelated nature of all of the claims and the undisputed fact that Trawick recovered the maximum amount that she could recover regardless of how many boxes the jury checked in her favor on the special verdict
In situations where a plaintiff is deemed "prevailing" even though she succeeded on only some of her claims for relief, the Court must address two questions. "First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which [s]he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?" Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Again, if a plaintiff presents "distinctly different claims for relief that are based on different facts and legal theories," then "counsel's work on one claim will be unrelated to [her] work on another claim," and "no fee may be awarded for services on the unsuccessful claim." Id. at 434, 103 S.Ct. 1933. In cases like this one where the plaintiff's claims for relief "involve a common core of facts," it is "difficult to divide the hours expended on a claim-by-claim basis." Id. at 435, 103 S.Ct. 1933. "Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. Moreover, "[l]itigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." Id.
As discussed above, all the claims that were presented to the jury and many of the facts underlying Trawick's claims that were disposed of before trial involve a common core of facts regarding Trawick's employment and the corporate culture at Carmike. So, Trawick did not fail to prevail on claims that were completely unrelated to her successful Title VII wage discrimination claim. And, Trawick obtained excellent results. Even if she had also prevailed on her Title VII retaliation claim that the jury rejected or her Title VII failure-to-promote claim that was dismissed before trial, Trawick likely could not have recovered any additional damages because of Title VII's cap.
In addition to her motion for attorney's fees, Trawick filed a motion for litigation
"Federal Rule of Civil Procedure 6(b) permits a district court to review the merits of a motion that is pending before it, despite its untimely nature, `where the failure to act was the result of excusable neglect.'" Corwin v. Walt Disney Co., 475 F.3d 1239, 1255 (11th Cir. 2007) (quoting Fed. R. Civ. P. 6(b)). The Eleventh Circuit has "made clear that `counsel's misunderstanding of the law cannot constitute excusable neglect.'" Id. (quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 999 (11th Cir. 1997)). Thus, counsel's mistake regarding the deadline for filing the motion for nontaxable expenses was not the result of excusable neglect. The Court has no discretion to find otherwise, so the motion for litigation expenses is denied.
Although Trawick may not recover nontaxable out-of-pocket litigation expenses because her motion was untimely, she is entitled to recover taxable costs. See Fed. R. Civ. P. 54(d)(1); 28 U.S.C. § 1920. Ordinarily, the Clerk would assess those costs, but to expedite resolution of all issues necessary to enter a final amended judgment, the Court evaluates Trawick's bill of costs and Carmike's objections. Trawick seeks $31,493.05 in taxable costs. Carmike objects to $24,040.36 of those costs.
Litigation costs other than attorney's fees "should be allowed to the prevailing party" unless a federal statute, the federal rules, or a court order provides otherwise. Fed. R. Civ. P. 54(d)(1). "Under Rule 54(d), there is a strong presumption that the prevailing party will be awarded costs," although the costs may not exceed the limitations set out in 28 U.S.C. § 1920. Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).
"Fees of the clerk" are recoverable under 28 U.S.C. § 1920(1). Carmike does not object to taxation of the $400.00 filing fee, so Trawick may recover it.
"Fees of the ... marshal," including fees for service of subpoenas, are recoverable. 28 U.S.C. § 1920(1); accord 28 U.S.C. § 1921(a)(1)(B). Private process server fees "may be taxed pursuant to §§ 1920(1) and 1921" if the fees do not exceed the rate charged by the U.S. Marshal. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). The U.S. Marshal may charge $ 65.00 per hour for each item served. 28 C.F.R. § 0.114(a)(3). Carmike challenges most of Trawick's service fees.
First, Carmike points out that Trawick sought $120.00 for service of the summons, including a $55.00 "same day
Second, Carmike objects to fees for repeated attempts to serve Lisa De La Cruz. According to Trawick, De La Cruz evaded service, and process servers had to attempt to serve De La Cruz multiple times to effectuate service on her, waiting outside of her home and place of work for hours. Carmike objects to some of the costs as "surveillance" costs, but it is clear from the invoices that this surveillance was in connection with attempting to serve a subpoena. The costs, however, shall be limited to the rate charged by the U.S. Marshal and shall not include rush fees or fees for investigating a tag number or conducting a skip trace because Trawick did not point the Court to any authority that such costs are recoverable as "Fees of the ... marshal." Thus, Trawick may recover $870.00 for service (and attempted service) on De La Cruz.
Third, Carmike objects to the $50.00 fee for attempted service of a deposition subpoena on Fred Friedel because Friedel was never deposed in this action. Trawick argues that this fee is a "deposition cost" that was reasonably incurred because Carmike included Friedel on its "may call" witness list. While it is true that deposition-related costs for depositions necessarily obtained for use in a case are recoverable, Trawick did not point to any authority that she may recover costs associated with a deposition that never happened. She may not recover this cost.
Fourth, Carmike contends that Trawick should not recover fees for serving deposition subpoenas on Ricky Love and David Pflegl. Deposition-related costs are recoverable if a deposition was necessarily obtained for use in a case. Carmike submitted both depositions in support of its summary judgment motion, which suggests that the depositions were reasonably necessary for use in the case. Trawick may recover these service costs, along with the costs of serving Sadie Marshall's deposition subpoena, although those costs shall be limited to the rate charged by the U.S. Marshal, for a total of $195.00.
Fifth, Carmike objects to the $60.00 fee for service of a deposition subpoena on Shannon Sailors because Carmike agreed to make Sailors available on a date certain, so it was not necessary to subpoena him. Trawick did not explain how this cost was necessarily incurred, so the Court denies it.
In summary, Trawick may recover $1,130.00 in service fees.
Trawick seeks $19,040.55 in transcript costs. Carmike contends that this number should be substantially reduced. "Fees for printed or electronically recorded transcripts necessarily obtained for use in the case" are permitted. 28 U.S.C. § 1920(2). If a deposition relates to issues in the case and the deposition was used at trial or in conjunction with a summary judgment motion, then the costs are generally recoverable. W&O, Inc., 213 F.3d at 621; accord Watson v. Lake Cty., 492 F. App'x 991, 996 (11th Cir. 2012) (per curiam). Even if a deposition is not used as part of the prevailing party's case, deposition costs may be awarded if the prevailing party reasonably needed the deposition transcript to cross-examine the witness or if the witness had relevant information that was within the bounds of discovery.
First, Carmike objects to the costs for the depositions of Ricky Love and David Pflegl, arguing that the depositions were unnecessary. Again, Carmike submitted both depositions in support of its summary judgment motion, which suggests that the depositions were reasonably necessary for use in the case, and both witnesses had relevant information that was within the bounds of discovery. The Court declines to find that their depositions were unnecessary.
Second, Carmike objects to paying deposition costs for extra copies of depositions. As discussed above, Trawick may recover the cost of the original plus one copy of each deposition. The Court therefore excludes the objected-to $50.00 "litigation support disc" fees from the depositions of David Passman and Frederick Van Noy. Carmike also asks the Court to exclude the entire transcript charges for the depositions of Shannon Sailors and Richard Hare because the invoice states that the fee covers "COMPUTER GENERATED TRANSCRIPT - ORIGINAL + COPY + MINI + ETRAN." There is no indication that Trawick paid any additional fee for the two extra computer-generated copies, and the Court declines to strike these charges.
Third, Carmike contends that Trawick should not recover costs of videotaping the deposition of Shannon Sailors. Trawick seeks to recover both the $2,248.26 transcript fee and the $1,025.00 fee for videotaping the deposition. Carmike argues that the electronically recorded video transcript was not necessarily obtained for use in the case. Trawick noticed the deposition as one that may be video recorded. Carmike did not object to the video recording of the deposition. The stenographic transcript was relied on by both sides at the summary judgment stage. And, Trawick argues that the video deposition was necessary because Sailors was beyond the subpoena power of the Court and Carmike did not agree to make Sailors available to testify live until just before trial. The Court finds that Trawick adequately demonstrated that the costs of both the stenographic transcript and video recording were necessary and thus recoverable.
Fourth, Carmike objects to $337.00 in transcript charges for transcripts that were produced during trial, contending that the charge was not properly documented. The fact that counsel's check stub refers to the court reporter's estimate does not render the documentation insufficient. The Court declines to strike this amount.
Finally, Carmike contests the cost of expediting the transcript for the August
In summary, Trawick may recover $18,940.55 in transcript fees.
"Fees and disbursements for ... witnesses" are recoverable. 28 U.S.C. § 1920(3). A witness "in attendance at any court of the United States ... or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by" statute. 28 U.S.C. § 1821(a)(1). These fees include an attendance fee of $40 per day and a mileage allowance. Id. §§ 1821(b) & 1821(c)(2). Carmike challenges Trawick's witness fees for Ricky Love and David Pflegl as unnecessary, but as discussed above, their depositions were reasonably necessary for use in the case. Carmike also objects to the witness fee for Jennifer Agnew as unsupported by any documentation. Trawick has produced sufficient documentation for this fee. Finally, Carmike objects to the witness fees because the amounts Trawick paid to the witnesses for mileage differ slightly from the amounts that would be due if mileage were calculated using the whole mileage numbers listed on the bill of costs multiplied by the mileage rate (which works out to be twelve cents in Carmike's favor). Trawick explained that she calculated mileage using mileage rounded to the nearest tenth of a mile, and the Court declines to adjust the witness fees on this basis. Trawick shall recover the requested $486.94 in witness fees.
Trawick seeks $9,953.06 in "printing" fees under 28 U.S.C. § 1920(3). Based on Trawick's documentation, she is actually seeking fees for photocopying documents. In support of her request, Trawick submitted a chart of photocopies and scans totaling $9,953.06. Of this amount, counsel paid FedEx Office $782.36 for photocopies of trial exhibits. The remaining $9,170.70 is for in-house copies and scans of 26,237 pages.
"Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case" are recoverable. 28 U.S.C. § 1920(4). Carmike argues that it was unnecessary for Trawick to print her nearly 400 trial exhibits given that most of them were not introduced at trial. It was not unreasonable for counsel to be prepared with paper copies of all of her trial exhibits, so the Court declines to strike the $782.36 copying cost.
Turning to counsel's in-house copies, "in evaluating copying costs, the court should consider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue." W&O, Inc., 213 F.3d at 623. Although Trawick's counsel insists that all the copies were necessary, counsel's chart of in-house photocopies and scans does not provide any information about 26,237 pages that were copied or scanned, and it does not state the reason for any of the copies and scans. It is impossible to tell from the chart whether it includes copies that are solely for the convenience of counsel, like extra copies of filings and correspondence.
As discussed above, Carmike's motion for judgment as a matter of law (ECF No. 221) is denied. Trawick's motion for attorney's fees (ECF No. 203) is granted to the extent that the Court awards Trawick attorney's fees in the amount of $659,433.27. Trawick is awarded taxable costs in the amount of $24,239.85. Trawick's motion for nontaxable litigation expenses (ECF No. 223) is denied because it was untimely. An amended judgment shall be entered in accordance with this Order in favor of the Plaintiff in the total amount of $1,050,790.91.
IT IS SO ORDERED, this 19th day of December, 2019.
