DAVID HITTNER, District Judge.
Pending before the Court is Defendant's Motion for Attorney's Fees and Costs (Document No. 32). Having considered the motion, submissions, and applicable law, the Court determines that Defendant's motion should be granted in part and denied in part.
This is a case arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Milton Richardson, Jr. ("Richardson") is an employee of Defendant Tex-Tube Company ("Tex-Tube"). On February 8, 2008, Richardson was terminated by Tex-Tube. This termination led to two actions by Richardson: (1) a formal grievance filed pursuant to a collective bargaining agreement; and (2) a claim filed by Richardson with the Equal Employment Opportunity Commission (the "EEOC") and subsequent filing of the lawsuit at issue.
At the time of his termination, Richardson had been working at Tex-Tube as a machine operator. Tex-Tube claimed that termination was based on attendance and tardiness issues. Richardson filed a grievance seeking reinstatement under the applicable collective bargaining agreement, and the claim was scheduled for arbitration. On February 11, 2009, while the parties awaited arbitration, Richardson filed a Charge of Discrimination with the EEOC, alleging gender discrimination and retaliation, both related to his termination. The EEOC issued a Dismissal and Notice of Rights Letter to Mr. Richardson. On July 15, 2009, Richardson, proceeding pro se at the time, sued Tex-Tube for gender discrimination and retaliation — the lawsuit at issue.
On December 9, 2009, Richardson's original grievance was submitted to arbitration. At issue in the arbitration was whether the number of tardies accumulated by Richardson were sufficient to justify termination. Richardson did not assert discrimination or retaliation claims in the arbitration. The arbitrator ruled in favor of Richardson and ordered his reinstatement at Tex-Tube, where he is still employed. Meanwhile, Richardson's lawsuit remained active. Then, almost two years after the filing of the lawsuit, Richardson voluntarily dismissed the case with prejudice. Throughout the pendency of the case, Tex-Tube maintained that "Plaintiffs claims [were] unreasonable, frivolous, vexatious and brought for the purposes of harassment."
Congress has authorized the award of reasonable attorney's fees to the prevailing party in Title VII disputes. 42 U.S.C. § 2000e-5(k). While prevailing plaintiffs are almost always entitled to attorney's fees, the Supreme Court of the United States has held that to recover attorney's fees, prevailing defendants must show that "the plaintiff's action was frivolous, unreasonable, or without foundation." Christiansburg Garment Co. v. Equal Emp't Opportunity Comm'n, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Therefore, when determining whether a movant is entitled to attorney's fees, a court must (1) note whether the movant is the plaintiff or the defendant; (2) determine whether the movant is the prevailing party; and, if the defendant is the moving party, (3) determine whether the lawsuit was frivolous, unreasonable, or without foundation. Dean v. Riser, 240 F.3d 505, 508 (5th Cir.2001); Univ. of Kan. v. Sinks, No. 06-2341-JAR, 2008 WL 750350, at *1 (D.Kan. Mar. 19, 2008). Here, the defendant, Tex-Tube, is moving for attorney's fees, therefore the Court must determine whether Tex-Tube was the prevailing party and whether the lawsuit was frivolous, unreasonable, or without foundation. Hilborn v. Klein Indep. Sch. Dist., No. H-09-840, 2010 WL 1463472, at *24 (S.D.Tex. Apr. 12, 2010) (Johnson, Mag. J.).
Only a "prevailing party" is entitled to attorney's fees in Title VII actions; this requirement is applicable whether the movant is a plaintiff or a defendant. 42 U.S.C. § 2000e-5(k). The United States Court of Appeals for the Fifth Circuit has held that "a defendant is not a prevailing party [for purposes of awarding attorney's fees] when a civil rights plaintiff voluntarily dismisses his claim, unless the defendant can demonstrate that the plaintiff withdrew to avoid a disfavorable judgment on the merits." Dean, 240 F.3d at 511.
Since Buckhannon, several circuits have held that a judicial order granting a plaintiff's request for voluntary dismissal with prejudice is sufficient judicial imprimatur to satisfy the requirement set out by the Supreme Court in Buckhannon. See Highway Equip. Co. v. FECO, Ltd., 469 F.3d 1027, 1035-36 (Fed.Cir.2006) (analyzing "judicial imprimatur" as discussed in Buckhannon and precedent regarding voluntary dismissals); Claiborne v. Wisdom, 414 F.3d 715, 719 (7th Cir.2005) (doing the same). Moreover, since Buckhannon, the Fifth Circuit has reaffirmed that a defendant may be considered a prevailing party when a plaintiff voluntarily dismisses a case, but only if they can show that the case was dismissed to avoid an unfavorable determination on the merits.
In the case at bar, Richardson moved to voluntarily dismiss the lawsuit with prejudice before trial began, and the Court issued an order granting a dismissal with prejudice.
Richardson did not identify his reason for dismissing the suit. Tex-Tube, however, submitted Richardson's deposition, taken just two days before Richardson moved to voluntarily dismiss the case, which Tex-Tube argues tends to show that Richardson dismissed the case to avoid an unfavorable judgment and the further accrual of Tex-Tube's attorney's fees. In the deposition, Richardson admitted numerous times that he did not have any facts to support his claims.
Having established that it is the prevailing party, Tex-Tube must also show that Richardson's lawsuit was frivolous, unreasonable, or without foundation. Dean, 240 F.3d at 512. The dismissal of a claim does not, itself, show that a suit was frivolous, unreasonable, or without foundation; instead, the defendant bears the burden of proving that the claim was meritless — an analysis independent of the dismissal. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1053 (5th Cir.1998) (citing Hughes v. Rowe, 449 U.S. 5, 15-16, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Subjective bad faith, however, is not a prerequisite for the award of attorney's fees, and therefore, Tex-Tube must only show that the lawsuit was objectively meritless, not that Richardson brought the claim maliciously or in bad faith. Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694. Moreover, the Fifth Circuit has upheld an award of attorney's fees to a defendant in a Title VII case when a plaintiff failed to show any evidence to support his claim. Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th Cir.1980).
Tex-Tube filed Richardson's deposition, contending that the testimony contained therein is evidence of the frivolity and baselessness of the lawsuit. When deposed, Richardson failed to state any facts to support his discrimination or retaliation claims.
Richardson argues that, notwithstanding any determination of this Court on the case's merit, attorney's fees should not be awarded because doing so would circumvent the arbitrator's award in favor of Richardson against Tex-Tube in the nonrelated arbitration. The Court fails to see how the arbitration is relevant to the pending case. Richardson, himself, admits that the discrimination and retaliation claims filed in this lawsuit are "unrelated to the attendance and tardiness matters which were the subject of the arbitration" and that "[t]he record is silent on whether the arbitration award addressed the discrimination claims asserted by Richardson in this action."
Attorney's fees requests in the Fifth Circuit are governed by the "lodestar" analysis. Forbush v. J.C. Penney Co., 98 F.3d 817, 821 (5th Cir.1996); Turner v. Oxford Mgmt. Serv., Inc., 552 F.Supp.2d 648, 650 (S.D.Tex.2008) (Atlas, J.). The lodestar is the product of the number of hours reasonably expended on the litigation multiplied by the movant's attorney's reasonable hourly billable rate. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir.1995). The movant bears the burden of demonstrating that both the hours expended and rates charged by counsel are reasonable. See Hensley, 461 U.S. at 427, 103 S.Ct. 1933.
In setting a reasonable billing rate, courts are directed to consider the attorney's regular rates as well as the rate "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Evidence of reasonableness of a proposed hourly rate must include an affidavit or declaration of the attorney performing the work and information about rates actually billed and paid in similar lawsuits. Id. at 896, 104 S.Ct. 1541. Appropriate rates can be determined through direct or opinion evidence about what local attorneys charge under similar circumstances. Id. at 896 n. 11, 104 S.Ct. 1541; Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988).
Similarly, to establish that the amount of time expended on a matter is reasonable, the movant can only meet his burden by presenting evidence that is adequate for a court to determine what hours should be included in the award. Bode v. United States, 919 F.2d 1044, 1047 (5th
Once the lodestar figure is determined, the court may adjust the figure upward or downward as necessary to make the award of attorney's fees reasonable, while ensuring the fee award does not provide a windfall to the movant. See Hensley, 461 U.S. at 429, 103 S.Ct. 1933. Although courts have "broad discretion in setting the appropriate award of attorney's fees," there is a strong presumption that the lodestar amount is reasonable and should be modified only in exceptional cases. City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir.2006). In deciding whether to make an adjustment to the lodestar figure, courts are instructed to consider the factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).
Here, Tex-Tube requests $13,073.75 in attorney's fees for payment of its counsel, Jay Aldis, a partner at Bracewell & Giuliani, LLP. As the movant, Tex-Tube bears the burden of demonstrating that this amount is based upon reasonable hourly rates and a reasonable amount of time expended on the litigation. Hensley, 461 U.S. at 427, 103 S.Ct. 1933.
As evidence of the qualifications of its counsel and the reasonableness of the rates charged, Tex-Tube has submitted an affidavit of its attorney, Mr. Aldis.
In addition, Tex-Tube has requested paralegal's fees for work done by Gayle McKay, a paralegal at Bracewell & Giuliani, LLP, at a billing rate of $190 per hour during the first year of litigation and $210 per hour in subsequent years. Tex-Tube, however, fails to provide any evidence to show that these rates are aligned with the prevailing market rates of paralegals in this community or practice area. Further, the time records submitted by Tex-Tube show that the majority of time billed by Ms. McKay was attributable to administrative scheduling work on the case, not work requiring the use of Ms. McKay's highest skill level, which might justify a more substantial billing rate.
In his affidavit, Mr. Aldis attests that he spent 36.25 hours working on the case and that Ms. McKay spent 2 hours working on the case. However, Tex-Tube has not submitted detailed time records to support those hourly calculations. Instead, the records submitted to the Court show 22.5 billable hours on behalf of Mr. Aldis and 2.2 billable hours on behalf of Ms. McKay — a difference of 13.55 hours. Tex-Tube did not supply billing records to support the additional 13.55 billable hours, thereby failing to meet its burden of providing sufficient evidence to support an award for those hours. See La. Power & Light Co., 50 F.3d at 324 (explaining that a movant bears the burden of providing sufficient documentation to justify the requested quantity of billable hours). Accordingly, the base number of hours used to calculate the lodestar method will be those reflected in the billing records submitted to the Court.
Richardson objects to the time spent on litigation for two reasons. First he argues that while the case has been pending for quite some time, Richardson never requested discovery nor did he file any motions requiring a response. Richardson, contends that because he did not conduct any discovery, "the expenditure of attorney fees in discovery by Tex-Tube is a matter of Tex-Tube's creation" and therefore
The Court agrees with Tex-Tube. First, discovery is an inherent part of any civil lawsuit — the discovery process is triggered by the filing of a lawsuit. It does not matter whether Richardson himself sought discovery; a defendant is entitled to discovery as well. Second, Richardson's contention that Tex-Tube should have filed a dispositive motion seeking dismissal attempts to shift the onus of the lawsuit's existence. Richardson filed suit in this case, not Tex-Tube. By filing a lawsuit, a plaintiff compels the defendant to acquire counsel and to begin establishing a defense. Richardson then made the decision to allow this lawsuit to perpetuate for over two years before dismissing the case with prejudice. Moreover, had Tex-Tube researched, prepared, and filed additional motions in this case, additional attorney's fees might have been accrued.
As a result of the Court's above analysis, Richardson's objections are overruled and no further deductions are warranted. Accordingly, the Court adopts the hours submitted by Tex-Tube and evidenced by billing records — 22.5 billable hours on behalf of Mr. Aldis and 2.2 billable hours on behalf of Ms. McKay.
Having determined the reasonable hourly rates and the reasonable amount of hours spent on litigation, the Court determines the lodestar amount as follow:
Billing Individual Rate Hours Lodestar Total Aldis $350 22.5 $7,875.00 McKay $125 2.2 $275.00Total: $8,150.00
The Supreme Court of the United States has recently affirmed the lodestar calculation. Perdue v. Kenny A. ex rel. Winn, ___ U.S. ___, 130 S.Ct. 1662, 1671-73, 176 L.Ed.2d 494 (2010). The Court explained, "there is a `strong presumption' that the lodestar figure is reasonable," and the presumption may only "be overcome in... rare circumstances." Id. at 1673. Other than the general objections to an award of attorney's fees, which have already been addressed, neither party contends that any rare circumstances exist which would act to alter the lodestar calculation, nor does the Court know of any. Accordingly, Tex-Tube is entitled to attorney's fees equal to the lodestar amount — $8,150.00.
Rule 54(d) of the Federal Rules of Civil Procedure provides that costs should
Cost Category Amount Billed Copies/Reproductions/Printing $90.9520 Costs Online Document $0.1621 Retrieval Costs Courier/Delivery $84.0022 Costs Document Production $274.6023 Costs Deposition Costs $964.4024 Total: $1,414.11
Taxable costs are specifically identified in 28 U.S.C. § 1920, and the Supreme Court has limited the district court's discretion in taxing costs in addition to those enumerated in § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987).
The remaining "costs" requested by Tex-Tube are more properly categorized as related nontaxable expenses, as contemplated by Rule 54(d)(2). Under Rule 54(d)(2), related nontaxable expenses are to be considered in conjunction with attorney's fees and awarded in the same manner. Richardson does not specifically object to any of these related nontaxable expenses. Moreover, Tex-Tube has provided copies of their attorney's invoices, which document the billing of these related nontaxable expenses and, in an exercise of billing judgment, Tex-Tube has requested less than the amount actually billed. Taking all of this into consideration, the Court has reviewed these expenses and determines that they are reasonable and should be awarded to Tex-Tube. Therefore, the Court awards Tex-Tube taxable costs and related nontaxable expenses as follows:
Taxable Costs: $91.11Nontaxable Expenses: $1,239.00Total to be Awarded: $1,330.11
Accordingly, the Court hereby
ORDERS that Defendant's Motion for Attorney's Fees and Costs (Document No. 32) is GRANTED IN PART and DENIED IN PART. The Court further
ORDERS that Tex-Tube Company be awarded attorney's fees in the amount of $8,150.00. The Court further
ORDERS that Tex-Tube Company's request for any attorney's fees in excess of the amount awarded is DENIED. The Court further
ORDERS that $91.11 in costs shall be taxed by the Clerk of the Court against Richardson, pursuant to Rule 54(a) of the Federal Rules of Civil Procedure. The Court further
ORDERS that Tex-Tube be awarded related nontaxable expenses in the amount of $1,239.00.
THIS IS A FINAL JUDGMENT.
28 U.S.C. § 1920.