United States District Court, W.D. North Carolina, Statesville Division
AMBER A. TRIPLETT, Plaintiff,
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Defendant.
Richard L. Voorhees, United States District Judge.
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.
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; (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.
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).
Reasonable Hourly Fees
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).
Sumter's Hourly Rate
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. 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.
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.
Legal Intern/Law Student Hourly Rate
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”).
Reasonable Hours Expended
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).
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).
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.
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
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
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).
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.
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.
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).
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.
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.
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). 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.
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 ...