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Plaintiff v. North Carolina Department Of Public Safety

United States District Court, W.D. North Carolina, Statesville Division

September 3, 2017

AMBER A. TRIPLETT, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Defendant.

          ORDER

          Richard L. Voorhees, United States District Judge.

         THIS MATTER IS BEFORE THE COURT on Plaintiff Amber A. Triplett's Motion for Attorney Fees and Costs (Doc. 73). The parties have filed their respective briefs (Docs. 74, 76, 79) and this matter is ripe for disposition. For the reasons stated below, Plaintiff's Motion for Attorney Fees and Costs is GRANTED WITH MODIFICATION.

         I. BACKGROUND

         Plaintiff raised claims for sexual harassment/hostile work environment and for retaliation, both under Title VII. Throughout this litigation, Plaintiff was represented by Geraldine Sumter of Ferguson, Chambers & Sumter, P.A. in Charlotte, North Carolina. After a six-day trial, a jury returned a verdict in favor of Plaintiff on her sexual harassment/hostile work environment claim and awarding her $10, 000.00 in compensatory damages. (Doc. 71). The jury, however, found that Plaintiff did not prove the elements of her retaliation claim. Id. Plaintiff filed the pending post-trial motion for attorney fees and costs pursuant to 42 U.S.C. § 2000e-5(k). (Doc. 73). In her motion, Plaintiff seeks (1) $130, 972.50 in attorney fees based on 241.20 hours of attorney work at $400.00 an hour and 255.5 hours of legal assistant, law intern, and paralegal work at $135.00 an hour;[1] (2) $3, 913.66 in litigation costs; and (3) $1, 107.40 in costs incurred by Plaintiff related to her appearance at depositions and at trial and related to her meetings with Sumter in Charlotte. (Doc. 74). Defendant raises a slew of objections to Plaintiff's requested attorney fees and costs: (1) Plaintiff is only entitled to recover 50% of the requested fee where she did not prevail on her retaliation claim; (2) the proposed hourly rates for Sumter and for Sumter's legal assistants, paralegals, and law intern are unreasonable; (3) the time entries in support of the motion use block billing, contain entries for background research, contain entries for travel time, contain entries for clerical tasks, and contain entries for excessive amounts of time; (4) the law intern's time is not recoverable to the extent that his work did not meaningfully contribute to the jury verdict; (5) Plaintiff's request for $1, 610.47 in copying costs is unreasonable; (6) Plaintiff's request for $1, 781.26 in hotel costs is unreasonable; and (7) no authority supports compensating Plaintiff for the expenses she incurred related to the litigation. (Doc. 76). In total, Defendant argues that Plaintiff is entitled to a base award of attorney fees and costs of $39, 667.50, which Defendant further argues should be reduced by the aforementioned 50% down to a total award of $19, 833.75. Id. at 24.

         II. ANALYSIS

         It is within the discretion of a court to award a prevailing party in a Title VII action her reasonable attorney's fees and costs. 42 U.S.C. § 2000e-5(k). The burden is on a party requesting fees and costs to demonstrate, by clear and convincing evidence, that the fees and costs requested are reasonable. EEOC v. Nutri/System, Inc., 685 F.Supp. 568, 572 (E.D. Va. 1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987)); see also Bland v. Fairfax Cty., 2011 WL 5330782, at *3 (E.D. Va. Nov. 7, 2011). “In calculating an award of attorney's fees, a court must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). In performing this reasonableness assessment, a district court should look to the twelve factors:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Id. at 243-44 (quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting twelve factors from Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)) (factors typically referred to as the “Johnson factors”). “After determining the lodestar figure, the court should subtract fees for hours spent on unsuccessful claims unrelated to successful ones” and must then “award[] some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Id. at 244 (internal quotation marks omitted). “However, . . . a plaintiff's complaint ‘cannot be viewed as a series of discrete claims' if the claims ‘involve a common core of facts or are based on related legal theories.'” Marsal v. E. Carolina Univ., 2012 WL 3283435, at *6 (E.D. N.C. Aug. 10, 2012) (brackets omitted) (quoting Hensley, 461 U.S. at 435).

         A. Reasonable Hourly Fees

         A Plaintiff must “furnish specific support for the hourly rate[s] [she] proposes.” Nutri/System, 685 F.Supp. at 573. A court must consider the “prevailing market rates in the relevant community” when determining what a reasonable hourly fee is in a given case. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984). “The relevant market for determining the prevailing rate is ordinarily the community in which the court where the action is prosecuted sits, ” however, “[i]n circumstances where it is reasonable to retain attorneys from other communities . . . the rates in those communities may also be considered.” Id. “Typically, a reasonable hourly rate is established by affidavits from lawyers with first-hand knowledge of the prevailing community rate in comparable cases for counsel with similar qualifications.” Nutri/System, 685. F.Supp. at 573. Finally, in determining the reasonable hourly rate in a given case, a court may look toward the Johnson factors, specifically factors three, five, nine, and twelve. See Alexander S., 929 F.Supp. at 936-38 (considering Johnson factors three, four five, eight, nine, ten, eleven, and twelve when determining reasonable hourly rate).

         i. Sumter's Hourly Rate

         Plaintiff seeks an hourly rate of $400.00 for Sumter's reasonable time in this matter. In support of this requested hourly rate, Sumter proffers affidavits from three local attorneys familiar with Sumter's work and with hourly rates for legal work in the field of employment law. (Doc. 74 at 28-35). Of the three attorneys, one attests that “$400.00 an hour, is well within what is normal for the market for someone with [Sumter's] knowledge, expertise, and experience” while two attest that the market rate in Charlotte for employment law work by an attorney with Sumter's experience ranges from $375.00 to $800.00 per hour.[2] Id. at 30, 32, 34. Plaintiff also offers an affidavit from Sumter, in which Sumter attests that her “hourly rate is $400 per hour” and that she charges that rate for “non-litigation employment matters.” Id. at 17. This Court finds that these affidavits, coupled with this Court's knowledge of local hourly rates, establish that a fee of $400.00 per hour for Sumter's time is reasonable.[3]

         ii. Legal Assistant and Paralegal Hourly Rate

          Plaintiff seeks an hourly rate of $135.00 for legal assistant and paralegal time. Plaintiff relies on the same three attorney affidavits in support of the proposition that the requested $135.00 per hour is consistent with market rates in Charlotte, as well as Sumter's affidavit that her firm typically charges $135.00 per hour for paralegal work. Id. at 18, 30, 32, 34. Defendant objects to the $135.00 an hour rate, citing Dyer and arguing that the $135.00 rate far exceeds the hourly rate seasoned court law clerks receive. (Doc. 76 at 9). Based on this Court's experience, a rate of $135.00 per hour is consistent with the market rate in Charlotte. Furthermore, this Court declines to adopt the reasoning advanced in Dyer. First, while it is true that the charged hourly rate well exceeds the hourly rate of court law clerks, the hourly rate law clerks receive does not capture the prestige and post-law clerk employment benefits that motivate individuals to serve as a law clerk to a federal judge. Second, while paralegals do not have the same legal education as law clerks, they often have considerable experience with discreet issues in the discovery process as well as with drafting and filing routine motions such that paralegals are often more prepared to handle certain issues. As a result, paralegals, if assigned appropriate tasks, may considerably reduce total legal fees even when their time is billed at a rate of $135.00 an hour.

         iii. Legal Intern/Law Student Hourly Rate

         Plaintiff also seeks an hourly rate of $135.00 for work performed by legal intern/law student Spencer Woodstock. To support this hourly rate, Plaintiff relies on the same evidence that she cites for the hourly rate for paralegals and legal assistants. (Doc. 74 at 18, 30, 32, 34). Defendant argues that a rate of $75.00 is more appropriate. (Doc. 76). Here, this Court concurs with Defendant with respect to the request rate being unreasonable and will lower the rate to the level requested by Defendant. Notably, law interns neither have the full training of law graduate nor the experience of a paralegal. Furthermore, it is not apparent that a firm faces the same financial outlay and overhead burden relative to the employment of law student interns such that billing at the same hourly rate as paralegals and legal assistants would provide Plaintiff, and in turn the recovering lawyer and law firm, a windfall. Cf. Hensley, 461 U.S. at 430 (noting that properly calculated attorney fees should be “adequate to attract competent counsel, but . . . do not produce windfalls to attorneys”).

         B. Reasonable Hours Expended

         A court should not automatically accept the hours requested by counsel as reasonable and, instead, must review each hour entry for reasonableness, excluding those “hours which it finds ‘excessive, redundant or otherwise unnecessary.'” Alexander S. by & through Bowers v. Boyd, 929 F.Supp. 925, 928 (D.S.C. 1995) (quoting Hensley, 461 U.S. at 434. In considering whether a given requested hour entry is reasonable, a court may consider the first two Johnson factors- the time and labor expended and the novelty and difficulty of the questions raised. Id. at 939. “[H]ours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.” Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980).

         “Proper documentation is the key to ascertaining the number of hours reasonably spent on legal tasks. Fee claimants must submit documentation that reflects reliable contemporaneous recordation of time spent on legal tasks that are described with reasonable particularity.” Nutri/System, Inc., 685 F.Supp. at 573. “The information supplied must be sufficient to permit the trial judge to ‘weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities.'” Id. (quoting Johnson, 488 F.2d at 717). Only properly documented hours will permit a district court to accurately exclude “‘hours that were not reasonably expended.'” Id. (quoting Hensley, 461 U.S. at 433). Finally, “[i]nadequate documentation is a basis for reducing or denying a fee award.” Id. (citing Hensley, 461 U.S. at 433).

         i. Sumter's Hours

         Attorney Sumter alleges that she performed 241.2 hours of work on this matter during her over three years of representing Plaintiff. Defendant objects to thirty of Sumter's time entries and seek to reduce Sumter's hour total by 122.8 hours to a total of 118.4 hours. (See Doc. 76 at 18-21). In so objecting, Defendant argues that (1) many of Sumter's entries are “vague, ” (2) Sumter engaged in “block billing, ” (3) some of Sumter's entries are unrelated to the result or relate to the unsuccessful retaliation claim, (4) some of Sumter's entries are excessive, and (5) Sumter's hour log includes entries for noncompensable time for background research, travel, and clerical tasks. See Id. In reply, Plaintiff admits that some of Sumter's entries constitute “block billing” and suggests that the proper remedy is to reduce Sumter's hours by ten percent. (Doc. 79 at 4-5). Plaintiff, however, challenges the remainder of Defendant's arguments. Id. at 5-10. Before considering each of Defendant's thirty objections, the Court will provide a general analysis on Defendant's block billing, unrelated to result/related to unsuccessful retaliation claim, and noncompensable time arguments, which Defendant advances across several of its specific objections.

         a. Block Billing

         The practice of “block billing” involves listing multiple tasks within a single time entry. This practice is problematic because it does not provide the district court with a clear sense of how many hours were performed on a particular task because multiple tasks are lopped into a single block of hours. In lopping multiple tasks into a single time entry, counsel's time records frustrate a court's attempt to review whether an attorney's hours on a given task were reasonable versus excessive. Courts faced with block billing entries typically, as Plaintiff suggests, reduce, by a given percentage, the total time requested or reduce the individual time entries infected by block billing. See Denton v. PennyMac Loan Servs., LLC, F.Supp.3d, 2017 WL 2113138, at *14-15 (E.D. Va. May 15, 2017) (noting that “[t]he traditional remedy for block billing is to reduced the fee by a fixed percentage reduction” and reducing total hours by 10%); Lusk v. Virginia Panel Corp., 96 F.Supp.3d 573, 583 (W.D. Va. 2015) (reducing overall fee by 5% for block billing); McAfee v. Boczar, 2012 WL 6623038, at *2 (E.D. Va. Dec. 19, 2012) (reducing block billing entry by 10%), aff'd 738 F.3d 81, 90-91 (4th Cir. 2013); Wolfe v. Green, 2010 WL 3809857, at *8 (S.D. W.Va. Sept. 24, 2010) (collecting cases applying 10% or 15% reduction for block billing and opting to apply 10% reduction for block billing where hours did not appear facially unreasonable).

         Here, this Court concludes that a reduction of 10% is appropriate for those entries that include block billing in a manner that frustrates reasonableness review. Although a greater reduction might otherwise have been warranted, as argued by Plaintiff, Sumter's request for attorney fees does not include any entries for several key and time consuming entries such as preparing Plaintiff's trial brief and proposed jury instructions. (See Doc. 74 at 23-24). Furthermore, the block billing in this case, for the most part, does not significantly hinder the Court's ability to assess the reasonableness of Sumter's listed hours because the grouped tasks are typically related to a single topic or issue and are the type of tasks that an attorney might perform during a single sitting. Finally, the overall hours expended do not appear facially unreasonable. Accordingly, absent a contrary reason appearing relative to a specific entry, this Court will reduce time entries infected by block billing by 10%.

b. Entries Unrelated to Result or Related to Retaliation Claim As previously noted, the process for excluding hours related to unsuccessful claims is twofold. First, a Court must exclude those hours spent on unsuccessful claims unrelated to the successful claim. Robinson, 560 F.3d at 243-44; Marsal, 2012 WL 3283435, at *6. Then a court considers the plaintiff's success on all related claims and reduces the overall fee depending on the degree of success. Robinson, 560 F.3d at 243-44; Marsahl, 2012 WL 3283435, at *6. Here, Plaintiff raised two claims, one for sexual harassment/hostile work environment and one for retaliation. As noted numerous times by this Court during motions practice, Plaintiff's two claims revolved around the same set of facts, allegations, and evidence, and the time period encompassing the retaliation claim fell entirely within the larger time period encompassing the sexual harassment/hostile work environment claim. Accordingly, Plaintiff's two claims were related and any reduction to the lodestar based on time spent by counsel on the retaliation claim should be addressed as part of the assessment of Plaintiff's success in the litigation after determining the reasonable number of hours spent rather than as part of the initial determination of which requested hours are reasonable.
c. Background Research, Travel Time, Clerical Tasks As to background research, “‘time spent maintaining competency to practice law is part of the cost of doing business' and is not compensable.” Certain v. Potter, 330 F.Supp.2d 576, 582 (M.D. N.C. 2004) (quoting Castle v. Bentsen, 872 F.Supp. 1062, 1067 (D.D.C. 1995)). “However, there is no per se rule that research time is never compensable” and “counsel are not forbidden from receiving fees for background research if the research is (1) relevant and (2) reasonable in terms of time for the scope and complexity of the litigation.” Id. at 583 (internal quotation marks omitted). Furthermore, “where the movant has satisfied the Court that experienced, skilled counsel have conducted relevant legal research in good faith, the number of allowable hours in the lodestar computation will not be reduced absent a showing of specific grounds.” Id. (quoting Wileman v. Frank, 780 F.Supp. 1063 (D. Md. 1991)). The complexity of the issues involved in a given case will impact the compensability for background research. Sugarman v. Village of Chester, 213 F.Supp.2d 304, 311 (S.D.N.Y. 2002).

         While this Court will address each of Defendant's objections based on background research individually, the Court notes that this case involved a complicated theory of liability based on the conduct of third-party inmates housed in a segregation unit of a close custody facility and on Defendant's failure to take prompt remedial action in response to the inmates' actions. Furthermore, the Court asked for supplemental briefing on several discreet issues during the course of motion practice in this case. Accordingly, some degree of background research in excess of what might be expected in a typical Title VII case was required and compensation for such is reasonable.

         As to travel time, “[w]hen a lawyer travels for one client [s]he incurs an opportunity cost that is equal to the fee [s]he would have charged that or another client if [s]he had not been traveling.” Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984). “Travel is often a necessary incident of litigation, and an attorney's travel time may be reimbursed in a fee award. Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 15 (1st Cir. 2011). So long as the travel underlying the requested compensation was necessary, “to award nothing for travel time . . . would be unreasonable.” Henry, 738 F.2d at 194. To this end, in some circuits, there exists a presumption “that a reasonable attorney's fee includes reasonable travel time billed at the same hourly rate as the lawyer's normal working time.” Id., see also Wayne v. Village of Sebring, 36 F.3d 517, 532 (6th Cir. 1994) (noting that “time spent traveling[] is fully compensable”); but see Hutchinson, 636 F.3d at 15 (suggesting that travel time should be compensated at a reduced rate). Furthermore, the issue of the rate at which travel time should be compensated is an issue that a district court has discretion over given its “greater familiarity with local practice.” Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991). Here this Court concludes that Sumter is entitled to recover for her reasonable travel time and that her reasonable travel time should be compensated at her normal, reasonable hourly rate. In support of this conclusion, this Court notes that counsel appointed to represent indigent clients in this district receive compensation for travel time at their normal hourly rate.

         As to billing for clerical tasks, clerical tasks include filing documents, preparing and serving summons, and filing and organizing client papers. Neil v. Comm'r of Soc. Sec., 495 F. App'x 845, 847 (9th Cir. 2012) (collecting published cases). A district court does not abuse its discretion by determining that requested hours are excessive where they include numerous requests for clerical tasks. Doe v. Kidd, 656 F. App'x 643, 656 (4th Cir. 2016). Many clerical tasks should be subsumed in a law firm's overhead, rather than billed even at a firm's rate for paralegal work, because the most basic of clerical tasks-filing, transcription, and document organization-are part of the cost of doing business. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009).

         Where a court is faced with a request for attorney fees that includes clerical tasks, it is appropriate for the Court to compensate the attorney at a lower rate. Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989) (citing Johnson, 488 F.2d at 717); but see Baker v. D.C. Pub. Sch., 815 F.Supp.2d 102, 109 (D.D.C. 2011) (holding that purely clerical tasks are not reimbursable but that “certain de minimis clerical tasks may be reimbursable if they cannot be separated from legal activities”). Here, this Court will keep the limitations on clerical tasks in mind when reviewing each objection based on the clerical nature of the task and either disallow compensation or limit compensation to a rate of $50.00 per hour.

         d. Defendant's Specific Objections to Sumter's Hours First, Defendant objects to Sumter's request for 0.3 hours for her time during the initial attorney's conference (IAC) on the grounds that the entry is vague and unrelated to the result. (Doc. 76 at 18). Pursuant to Local Rule 16.1, counsel for both parties were required to conduct an IAC and formulate a proposed discovery plan. The record shows that counsel for both parties did so and that Sumter filed the certification of the IAC. (Doc. 9). Accordingly, Sumter's time for the IAC is essential to the litigation and is reasonable and Defendant's objection to this entry is entirely baseless.

         Third, [4] Defendant objects to Sumter's request for 4.0 hours for her time responding to Defendant's motion to compel discovery on the grounds that the request includes block billing and is excessive. (Doc. 76 at 19). Defendant proposes reducing this entry to 1.0 hours. Id. In reply, Plaintiff argues that the “discovery responses included an 18 page document which addressed in more specificity the categorization of over 600 pages of documents.” (Doc. 79 at 7).[5] It is true that a one-page, six-sentence response that recites events relative to the discovery process and does not cite any case law would not entail 4.00 hours of attorney time. (See Doc. 12). However, drafting an eighteen page response could easily take 4.0 hours of attorney. Accordingly, while this entry suffers from some degree of block billing, the entry is not unreasonable and will only be reduced by the 10% figure previously identified for the purpose of addressing block billing. Therefore, the entry is reduced from 4.0 hours to 3.6 hours.

         Fourth, Defendant objects to Sumter's request for 0.3 hours to receive and review a letter form the EEOC and to draft a letter to Plaintiff on the grounds that this entry constitutes block billing and is related to the unsuccessful retaliation claim. (Doc. 76 at 19). To the extent this entry might be viewed as block billing, the combination of tasks does not inhibit this Court's reasonableness assessment given the relatively short amount of time Sumter spent on the two tasks. Furthermore, as previously discussed, Plaintiff's retaliation claim, although unsuccessful, was related to her successful sexual harassment/hostile work environment claim such that any ...


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