JOHN M. FACCIOLA, United States Magistrate Judge.
On July 29, 2008, following a jury trial, a verdict was rendered in favor of plaintiff and against the District of Columbia ("the District") in the amount of $180,000.00 with interest, attorney's fees and costs. See Judgment [# 132]. On July 1, 2011, the court of appeals ordered this Court to require plaintiff to either accept a $90,000 remittitur or a new trial. Medina v. District of Columbia, 643 F.3d 323, 330 (D.C.Cir.2011). Plaintiff accepted the remittitur on July 8, 2011. Praecipe [# 170]. The only issue remaining before this Court is Plaintiff's Motion for Attorney's Fees [# 173].
Attorney's fees may be awarded to a plaintiff who prevails in an action brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(k).
At a hearing held on January 31, 2012, the defendant conceded that plaintiff is entitled to an award of fees based on the
The Supreme Court recently considered the issues presented by a plaintiff who ultimately prevailed yet nevertheless asserted claims that were unsuccessful:
Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 2214, 180 L.Ed.2d 45 (2011).
The Court then indicated that the prevailing party must be compensated for all the time her attorney spent in achieving the result obtained, even if that party failed to prevail on "every contention." Id. Furthermore, work on the unsuccessful claim must relate to the work on the successful claim, in order to merit such compensation. "The fee award, of course, should not reimburse the plaintiff for work performed on claims that bore no relation to the grant of relief. Such work `cannot be deemed to have been expended in pursuit of the result achieved.'" Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). As the Supreme Court stated in Hensley:
Id. at 434-35.
This Circuit has therefore concluded that, when separate legal claims are asserted but are based on the same facts, lack of success on one does not mean that the time spent on other unsuccessful claims should be disallowed. Williams v. First Gov't Mortg. & Investors Corp., 225 F.3d 738, 746 (D.C.Cir.2000) (award of fees for work on all claims affirmed when claims were not distinctly different); Goos v. Nat'l Ass'n of Realtors, 997 F.2d 1565, 1569-70 (D.C.Cir.1993) (claims of breach of contract and violation of Human Rights Act based on the same retaliatory discharge were not distinct); Morgan v. District of Columbia, 824 F.2d 1049, 1065-67 (D.C.Cir.1987) (all claims were related because
The following chart lists the claims made in plaintiff's second amended complaint, which was filed on October 29, 2002, and their ultimate outcomes.
Count I Denial of due Failing to enforce the September Dismissed on June 6,
process 1995 Summary Determination and 2007
Order by the District of Columbia
Office of Human Rights (OHR),
which concluded that MPD had
discriminated against plaintiff on
the basis of his national origin
Count II Denial of due Failing to hold a hearing on Dismissed on June 6,
process plaintiff's second OHR complaint 2007
before making a finding of no
probable cause
Count III Violation of Title VII Transferring plaintiff from the Jury verdict for the
and 42 U.S.C. § 1981 Office of Internal Affairs (OIA) to District
street duty after his 1994
promotion
Count IV Violation of Title VII Denial of plaintiff's request to be Jury verdict for the
and 42 U.S.C. § 1981 transferred back to OIA District
Count V Retaliation in Failure to transfer plaintiff back Jury verdict for
violation of 42 U.S.C. to OIA plaintiff in the
§ 1981 and D.C. amount of $180,000
Human Rights Act
Plaintiff accepted
court-ordered
remittitur of $90,000
Count VI Denial of due Failing to enforce November 1, Dismissed on June 6,
process 1995 OHR Letter of 2007
Determination, which found
probable cause that plaintiff was
subjected to unlawful
discriminatory and retaliatory
employment practices
Count VI Denial of due Failing to enforce November 1, Dismissed on June 6,
process 1995 OHR Letter of 2007
Determination, which found
probable cause that plaintiff was
subjected to unlawful
discriminatory and retaliatory employment practices Count VII Retaliation in Repeated denials of plaintiff's Dismissed on June 6, violation of 42 U.S.C. request to be transferred back to 2007 § 1981 OIA Count VIII Denial of due Failing to reinstate plaintiff Dismissed on June 6, process within 30 days of his acquittal on 2007 criminal charges Count IX Retaliation in Refusal to return plaintiff to full Jury verdict for the violation of 42 U.S.C. duty and pay within 30 days of his District § 1981 acquittal on criminal charges Count X Discrimination and Denials of plaintiff's requests to Partially dismissed retaliation in participate in the Take Home on June 6, 2007 violation of 42 U.S.C. Cruiser Program and a break in (solely that portion § 1981 to plaintiff's office alleging a retaliatory office break in) Discrimination and retaliation claims respecting Take Home Cruiser Program and office break in withdrawn by Joint Motion to Amend the Pretrial Statement [# 119] at 1.
Defendant District of Columbia's Opposition to Plaintiff's Motion for Attorneys' Fees [# 174] at 3-4.
I conclude that the District is correct insofar as it asserts that time spent on Counts I, II, VI, and VIII were premised on an independent violation of due process and were based on the District's failure to 1) enforce an OHR finding; 2) hold a hearing before dismissing plaintiff's second OHR complaint; 3) enforce an OHR letter of determination; and 4) reinstate plaintiff within 30 days of his acquittal. These claims, and the facts upon which they were based, are entirely different from the retaliation and discrimination claims that were submitted to the jury. On the other hand, counsel's work on Counts III, IV, IX and X (before it was withdrawn) was premised on what plaintiff claimed were a pattern of discriminatory and retaliatory acts against him based on his national origin, and his complaints of discrimination.
Specifically, plaintiff's first motion for partial summary judgment sought a determination that plaintiff's due process rights were violated by OHR when it determined, without holding a hearing, that he was not retaliated against for filing a discrimination claim. Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment [# 8-1] at 1. That motion was denied without prejudice to filing a renewed motion, so that precise references to deposition testimony could be provided. See Order [# 23] at 1.
Plaintiff's second motion for partial summary judgment proffered the same argument as the first, that plaintiff was denied a property right when the OHR made a decision without first holding a hearing. See Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment [#24-1] at 1. This motion was denied, not on the merits of plaintiff's due process claim, but rather, on the grounds
In plaintiff's third motion for partial summary judgment, plaintiff argued that his due process rights were violated when the District failed to comply with the OHR's September 19, 1995 decision awarding plaintiff back pay and overtime compensation and mandating that the District promise not to retaliate against him. Plaintiff's [Third] Motion for Partial Summary Judgment [# 91] at 17-18. As with plaintiff's earlier motions for partial summary judgment, this motion was also denied.
With respect to Count I, the Court concluded that plaintiff's claim was not a substantive due process claim but rather a claim that a D.C. agency failed to follow D.C. law and, as such, should have been brought before the local D.C. courts. Opinion [# 101] at 17.
Finally, plaintiff's motion for a preliminary injunction was filed for the purpose of enjoining the District from "taking any further adverse action against the plaintiff while the instant case [was] pending." Plaintiff's Motion for Preliminary Injunction [# 71] at 1. Specifically, plaintiff sought to prevent the District from proceeding with a termination hearing based on two criminal indictments while the current suit, which alleges discrimination and retaliation, was pending. Memorandum Opinion and Order [#83] at 1-5. The Court denied the motion on the ground that plaintiff failed to establish that he would suffer irreparable harm if an injunction were not granted. The Court noted that because "the [OHR had] yet to make and may never make, a final decision to terminate him, and [because] the harms alleged are almost exclusively financial," there was insufficient support for a preliminary injunction at this stage of the proceedings. Id. at 13.
As is clear from the above review, the work performed on the motions just specified and explained, did not advance in any way his success before the jury. In finding for plaintiff as to Count V, the jury found that plaintiff established by a preponderance of the evidence that 1) "the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer denied him equal protection of the laws by retaliating against him for having filed complaints complaining of discrimination on the basis of his national origin"; 2) "the denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was based on a custom or practice of retaliation against persons who complain of discrimination based on national origin"; 3) "a reasonable employee would have found the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer a materially adverse action"; and 4) "the MPD's denial of his application to return to the Office of Internal Affairs in 1998 and the selection of a white officer was done in retaliation for his making complaints of discrimination." Verdict Form [# 131] at 3-4.
Count V of plaintiff's second amended complaint was focused on the District's response to plaintiff's application to transfer back to OIA following plaintiff's claim that he was discriminated against on the basis of his national origin (Puerto Rico). The focus of plaintiff's motions for partial summary judgment, on the other hand, was on the District's alleged failure to comply with an OHR determination. Thus, even though the OHR determination was itself based on a finding that plaintiff had been discriminated against because of his race (Hispanic), plaintiff's summary
Finally, although the motion for a preliminary injunction focused, as it had to, on the standard governing the imposition of a preliminary injunction, which includes an analysis of whether the plaintiff is likely to prevail on the merits, plaintiff states only that "the best evidence of this likelihood [of success] is the irrefutable fact that on two occasions Medina has already prevailed, proving that he was the victim of discrimination at the hands of the Defendant." [# 71] at 10. But that he was ultimately successful before the jury does not somehow make the work on the preliminary injunction, based on different facts and legal theories, compensable.
I therefore conclude that all of the time spent on the following motions, which totals 106 hours, must be disallowed:
June 16, 1997— "Draft and review of Plaintiff's Motion for Partial 25 hours
June 20, 1997 Summary Judgment."
June 23, 1997 Plaintiff filed Plaintiff's Motion for Partial n/a
Summary Judgment [# 8].
October 20, 1997 "Received and reviewed Defendant's Opposition to 2 hours
Plaintiff's MSJ."
October 21, 1997— "Research regarding reply." 10 hours
October 28, 1997
October 30, 1997 "Drafted reply." 3.5 hours
February 19, 1998— "Drafted, prepared filed plaintitf's [sic] motion to 4 hours
February 20, 1998 supplement the record."
March 19, 1998 Judge Sullivan denied [# 8] at Order [# 23]. n/a
March 23, 1998 "Reviewed court's order/denied plaintiff's MSJ 0.5 hours
and get new dates."
April 20, 1998— "Research, prepared renewed Motions [sic] for 25 hours
April 24, 1998 Summary Judgment."
April 30, 1998 Plaintiff filed Plaintiff's [Second] Motion for n/a
Partial Summary Judgment [# 24].
May 22, 1998 "Received and reviewed Defendant's Opposition." 3 hours
March 31, 1999 Judge Sullivan denied [# 24] at Memorandum n/a
Opinion and Order [# 30].
April 2, 1999 "Received and reviewed court's order/memo 2.5 hours
denying plaintiff's motion for summary
judgement [sic], communicated with client."
February 29, 2003— "Research, draft plaintiff's motion for preliminary 12.5
March 3, 2003 injunction." hours
March 3, 2003 Plaintiff filed Plaintiff's Motion for Preliminary n/a
Injunction [# 71].
March 20, 2003 "[R]eview of DC opposition to Plaintiffs [sic] 3 hours
motion for preliminary injunction."
June 2, 2003— "Research, draft of reply to DC's opposition to 15 hours
June 6, 2003 Plaintiff's motion for preliminary injunction."
July 29, 2003 Judge Sullivan denied [# 71] at Memorandum n/a Opinion and Order [# 83]. January 18, 2005 Plaintiff filed Plaintiff's [Third] Motion for n/a Partial Summary Judgment [# 91]. June 6, 2007 Judge Sullivan denied [# 91] at Opinion [# 101]. n/a
The District contends that plaintiff's request for reimbursement of $46,158.75 for 93.25 hours of "Document-review-Summation" is excessive, and should be reduced by 60%. [# 174] at 16. Thus, the District contends that plaintiff should be awarded $18,463.50 rather than $46,158.75. Id. In support of its argument, the District claims that plaintiff's billing records are too vague in that they identify a particular task as "Document review-Summation," "Review Document-Summation," or "Review Summation documents," without providing any further detail. Id. at 16-17. Plaintiff's counsel argues that he used "Summation" and "Trial Director," the latest trial software, in reviewing the documentary evidence, thereby "saving hundred of hours of attorney and paralegal time" for this task. [# 175] at 7.
In its discretion, the Court will not arbitrarily reduce the number of hours spent on document review but will reduce the rate at which that work will be reimbursed. Rather than reimbursing that work at the hourly rate for an attorney, the Court will use the Laffey rate set for paralegals and law clerks for 2011-2012. Thus, for 93.25 hours of document review, plaintiff will be reimbursed at a rate of $140 per hour, for a total of $13,055.00.
In its motion, plaintiff seeks a total of $493,746.00 in attorney's fees. [# 173-1] at 4. The District counters that plaintiff is only entitled to an award of $206,790.00 in attorney's fees. [# 174] at 1. Pursuant to the above analysis and the Court's independent calculation of attorney's fees, provided in Attachment A, the Court has initially arrived at a figure of $406,991.00. As the Supreme Court recently emphasized, determining the proper fee in a case where a party makes related unsuccessful and successful claims is not a lapidary judgment. Instead, it requires the careful exercise of discretion by the judge who has lived with the case on a daily basis. Fox, 131 S.Ct. at 2216 ("The essential goal in shifting fee ... is to do rough justice, not to achieving auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time."). The result achieved is a crucial consideration. Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (Results obtained is particularly crucial when plaintiff prevails only on some of her claims for relief.).
On the one hand, this was an extraordinary case. There are (thankfully) few cases in which one's client is indicted in the middle of the case. While everything worked out ultimately to plaintiff's benefit, his counsel is certainly to be commended and fairly compensated for his loyalty to his client and to his persistence on plaintiff's behalf under extremely unfavorable circumstances.
Additionally, this case was well tried by both counsel. In my view, the evidence supporting plaintiff's case was not strong and it took that kind of excellent advocacy to achieve the verdict plaintiff received. Plaintiff's "problem" (a nice problem to have) was that he has risen rapidly and successfully to the very upper echelons of
On the other hand, the result achieved was not very great. While I viewed the violations of Title VII and the D.C. Human Rights Act as two distinct claims, the court of appeals reversed me and found only one. Thus, plaintiff prevailed on a single count of retaliation, which is only one of the ten counts he pressed. He was not entitled to back pay and, as I have just noted, the jury award was small.
Weighing, on the one hand, the excellence of plaintiff's counsel's advocacy, his loyalty to his client over more than a decade of litigation, and his success in securing a favorable verdict against his failure with respect to nine of the ten counts presented as well as the limited relief plaintiff secured, I believe that an unadjusted award of $406,991.00 is simply too great. It is more than four times the jury award, and I cannot see any justification for such a disproportion between result and fee. I therefore will, in my discretion, award $300,000.00, an amount that, in my view, is generous to plaintiff's counsel and will continue to attract equally competent counsel to future Title VII cases.
Finally, I note that I am motivated to reduce plaintiff's counsel's fee because of the likelihood that prior to June 6, 2007, the date when Judge Sullivan dismissed plaintiff's due process claims, plaintiff's counsel spent time working on those unsuccessful claims, even though that time is not reflected in his billing entries. While I have already deducted compensation for entries that specifically relate to work on these due process claims, I certainly cannot conclude that every other minute prior to June 6, 2007 was spent solely on plaintiff's discrimination and retaliation claims. Ultimately, however, plaintiff's counsel bears the burden of proving his entitlement to fees by submitting detailed entries that would permit the court to identify the total amount of time spent on each claim. See Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1326-27 (D.C.Cir.1982). Here, the entries do not permit such a distinction. Therefore, I will reduce plaintiff's counsel's fee to an amount that I consider fair, given the time spent by counsel on the case and the results he achieved.
Finally, the District argues that plaintiff should not be reimbursed for certain costs associated with the service of subpoenas, witness fees, and deposition transcripts.
Witness Date Subpoena Fee Witness Fee Total 1. Patricia Alexander 7/18/08 114.00 40.00 154.00 2. Luperico Rivera 6/23/08 40.00 40.00 80.00 3. Guy Middleton 7/2/08 104.00 40.00 144.00 4. Tony Giles 60.00 40.00 100.00 5. John Simmons 60.00 40.00 100.00 6. Frank Santiago 60.00 40.00 100.00 7. Joshua Ederhelmer 6/26/08 100.00 40.00 140.00 8. Martha L. Herzing 6/26/08 63.00 40.00 103.00 9. Julie Anderson 60.00 40.00 100.00 10. Danny Clark Gregg 6/26/08 100.00 40.00 140.00 11. Raymond Corey 7/9/08 75.00 40.00 115.00 12. Hiram Rosario 7/11/08 239.00 40.00 279.00 13. Kim Gregory 7/1/08 140.00 40.00 180.00 14. Christopher Cummings 7/14/08 104.00 40.00 144.00 15. William Bailey 7/16/08 210.00 40.00 250.00 16. Ralph Harmon 19.00 40.00 59.00 ______________________________________________________________________________________ 1,548.00 640.00 2,188.00
Pursuant to Rule 54 of the Local Rules of Civil Procedure and Section 1920 of Title 28 of the United States Code, included in the list of taxable costs are the cost of serving a subpoena on an individual who testifies at a deposition, hearing, or trial, as well as witness costs. See LCvR 54.1(d)(11); 28 U.S.C. § 1920(3). According to plaintiff's fee petition, each of the sixteen individuals listed above were served with a "Subpoena for Trial."
Like subpoenas, witness fees are also expressly authorized. See LCvR 54.1(d)(10); 28 U.S.C. § 1920(3); Youssef v. FBI, 762 F.Supp.2d 76, 88-89 (D.D.C. 2011). Witness fees are usually limited, however, to the days the witness "necessarily and reasonably attended" the trial as a witness. Belfiore v. U.S. Merit Sys. Prot. Bd., No. 84-CIV-3877, 1987 WL 10234, at *2 (D.D.C.1987). See Kakeh v. United Planning Org., 657 F.Supp.2d 15, 18 (D.D.C.2009). Because plaintiff did not, in either his motion for attorney's fees or his reply, indicate whether and under what circumstances the individuals listed above attended the trial, the Court will disallow both the claimed subpoena and witness fees.
Plaintiff is entitled to an award of $300,000.00 in attorney's fees and $3,243.00 in costs. An Order accompanies this Memorandum Opinion and the Clerk is
