SUSAN RIFENBERICK,
Kathleen Leipold, Kathleen Albe, and Lisa Wagner,
Plaintiffs,
v.
PORTER APPLE CO.,
a South Dakota corporation,
D/b/a Applebee's Neighborhood Grill & Bar,
Defendants.
[1999 DSD 11]
United States District Court
District of South Dakota - Western Division
CIV. 97-5079
MEMORANDUM OPINION
AND ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES
Talbot J. Wieczorek
Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD
Attorney for Plaintiffs
Don E. Petersen, Melissa R. O'Rourke
Morgan, Theeler, Cogley & Petersen, Mitchell, SD
Attorneys for Defendant
Filed April 12, 1999
Richard H. Battey, Senior District Judge
I. BACKGROUND
[¶1] On October 1, 1997, Susan Rifenberick, Kathleen Leipold, Kathleen Albe, and Lisa Wagner ("plaintiffs") filed a complaint against Porter Apple Co., d/b/a Applebee's Neighborhood Grill & Bar ("defendant") under Title VII of the Civil Rights Act of 1964, as amended, 42 USC §§ 2000e, et seq. ("Title VII"), and the South Dakota Human Relations Act of 1972, as amended, SDCL Ch. 20-13. Plaintiffs alleged they were subjected to a sexually hostile work environment resulting in their eventual termination or constructive discharge. On summary judgment, this Court dismissed plaintiffs' claim under the South Dakota Human Relations Act of 1972 (Docket #30), leaving only the Title VII claim for trial.
[¶2] On February 19, 1999, a jury returned a verdict in favor of all four plaintiffs finding:
(1) that plaintiffs were subjected to a hostile work environment during their tenure at Applebee's; and
(2) that each was either constructively discharged or terminated as a result of this environment(fn1).
[¶3] Currently before this Court is plaintiffs' motion for award of attorneys' fees and expenses (Docket #76, #90) submitted pursuant to 42 USC § 2000e-5(k).(fn2) Plaintiffs have presented bills from the firms of Gunderson, Palmer, Goodsell & Nelson ("Gunderson Palmer") and Lynn, Jackson, Shultz & Lebrun ("Lynn Jackson"). While Gunderson Palmer represented plaintiffs throughout discovery, summary judgment, and trial, Lynn Jackson represented plaintiffs at the outset of their case, primarily assisting plaintiffs in the filing of their claims with the South Dakota Division of Human Rights. The following amounts are being requested by Gunderson Palmer and Lynn Jackson:
GUNDERSON PALMER(fn3) Attorneys' fees
$ 76,017.00 Expenses:
$ 532.56 South Dakota Sales Tax
$ 4,561.02 $ 81,110.58 LYNN JACKSON Attorneys' fees
$ 2,670.00 Expenses:
$ 137.23 South Dakota Sales Tax
$ 168.13 $ 2,975.36 TOTAL AMOUNT $ 84,085.94
[¶4] Defendant objects to the amount of fees submitted by Gunderson Palmer and objects to any bill of fees being submitted by Lynn Jackson (Docket #94). The Court will first address the attorneys' fees and expenses submitted on behalf of Gunderson Palmer for work done by attorneys Talbot J. Wieczorek and Sarah A. Hirsch.(fn4)
II. DISCUSSION
[¶5] A. Attorneys' Fees and Expenses: Gunderson Palmer
[¶6] Plaintiffs seek an award of attorneys' fees and costs as the "prevailing party" in this action. See 42 USC § 2000e-5(k); see also Tyler v. Corner Constr. Corp., 167 F3d 1202 (8th Cir. 1999) (discussing matter of "prevailing party" in civil rights context). In calculating attorneys' fees this Court is guided by familiar principles. First, the Court must determine the "lodestar" figure by '"multiply[ing] the number of hours reasonably expended times the lawyer's regular hourly rate."' Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota, 771 F2d 1153, 1160 (8th Cir. 1985) (quoting Avalon Cinema Corp. v. Thompson, 689 F2d 137, 139 (8th Cir. 1982)). Once the lodestar figure has been computed, the Court must decide whether the amount should be increased or decreased based upon the factors outlined by the Eighth Circuit in Avalon Cinema Corp., 689 F2d at 139 (adopting factors from Johnson v. Georgia Highway Express Inc., 488 F2d 714 (5th Cir. 1974)).(fn5)
[¶7] 1. Reasonable Hours
[¶8] Defendant objects to the amount of hours billed by attorneys Wieczorek and Hirsch and asserts, in part, that many of the expended hours were either excessive or duplicitous. Specifically, defendant objects to the hours billed for various meetings between Mr. Wieczorek and Ms. Hirsch, time spent attempting to locate and interview witnesses, and time spent deemed by defendant to have been "frivolous and duplicative." Defendant further objects to the use of two attorneys in the pursuit of this case, asserting that defendant should only be responsible for the fees of Mr. Wieczorek.(fn6)
[¶9] In calculating the reasonableness of the hours billed in this case, the Court must exclude from its initial lodestar figure any hours not "reasonably expended," including those hours that are excessive, redundant, or otherwise unnecessary. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939-40, 76 L. Ed. 2d 40 (1983). However, "a judge is seldom able to make adequate appraisal of what is necessary for counsel to do or not do in a given case. This appraisal turns on so many subjective factors that it seldom should be the basis for reduction of any attorney fee." Jaquette v. Black Hawk County, Iowa, 710 F2d 455, 460 (8th Cir. 1983). With these competing concerns in mind, this Court has carefully reviewed the billing records of Gunderson Palmer and concludes that the hours expended in this case were reasonable.
[¶10] Although Gunderson Palmer has billed for time spent conferring on this case, the Court cannot conclude that these hours were excessive. Attorneys working on a case must be afforded some opportunity to confer regarding the pursuit of their clients' claim. Similarly, although plaintiffs did not ultimately utilize each of the potential witnesses with whom their attorneys spoke, it was reasonable for the attorneys to contact these individuals to determine whether their testimony would be beneficial.
[¶11] The Court also finds that it was not unreasonable for plaintiffs' attorneys to spend additional time conducting research and reviewing relevant case law in light of the significant
changes in the law of sexual harassment generated by the recent United States Supreme Court cases of Burlington Indus., Inc. v. Ellerth, U.S. , 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), and Faragher v. City of Boca Raton, U.S. , 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
[¶12] In addition, the Court cannot conclude that the use of two attorneys was unreasonable given the complexity of issues and the fact that four plaintiffs were being represented. See A.J., by L.B. v. Kierst, 56 F3d 849, 863 (8th Cir. 1995) (holding that district court abused its discretion in limiting attorneys' fees to only one attorney). According to the Eighth Circuit Court of Appeals:
[W]here more than one attorney represents the prevailing party, the contribution of all attorneys must be taken into consideration and the fees awarded should reflect the efforts of all, at least to the extent that the time reported does not reflect duplication of effort or work that would be performed by nonlawyers.
A.J., by L.B. v. Kierst, 56 F3d at 863 (quoting Reynolds v. Coomey, 567 F2d 1166, 1167
(1st Cir. 1978)). As the Court has already noted, it has scoured the billing records presented by attorneys Wieczorek and Hirsch and believes they are neither redundant nor excessive. Accordingly, the actual hours billed by the Gunderson Palmer firm (with the exception of those hours billed by Don Knudsen) are reasonable and shall be used in this Court's calculation of the lodestar figure for purposes of an award of attorneys' fees.
[¶13] 2. Reasonable Hourly Rate
[¶14] As noted above, the next step in calculating the lodestar figure requires this Court to determine a reasonable hourly rate. Plaintiffs' attorneys assert that their customary fee in matters of this kind would range between $125 to $150 dollars. However, "[a]utomatic acceptance of a lawyer's customary charge would be an abdication of . . . [this Court's] duty to supervise the conduct of the bar and do justice to the losing as well as the winning side." Avalon Cinema Corp. 689 F2d at 140. Although defendant accepts the fee range of $125 to $150 per hour for
Mr. Wieczorek, it objects to all of Mr. Wieczorek's time being billed within that range. In addition, defendant objects to Ms. Hirsch billing at the same hourly rate as attorney Wieczorek given Ms. Hirsch's lack of experience.(fn7)
[¶15] A reasonable hourly rate has generally been held to represent the "ordinary fee 'for similar work in the community.'" Jacquette, 710 F2d at 459 (quoting Johnson, 488 F2d at 718). The Court must apply a rate in line with those charged in the community for similar services by lawyers of reasonably comparable skills and reputation. See Jacquette, 710 F2d at 459 (citing Jorstad v. IDS Realty Trust, 643 F2d 1305, 1313 (8th Cir. 1981)). As has been noted by the Eighth Circuit:
[The Court's] task is to fix a reasonable fee and, in doing so, to be mindful of Congress's purpose to encourage the enforcement of constitutional rights by awarding the "fees adequate to attract competent counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, supra, at 6.
Avalon Cinema Corp., 689 F2d at 141. With this purpose in mind, and based upon the affidavits presented by fellow attorneys in the community, the Court concludes that a reasonable hourly rate for Mr. Wieczorek is $150 per hour. This calculation is based upon the facts of this case, the experience of Mr. Wieczorek, as well as the ordinary fee charged for similar cases in the community. The Court believes this rate adequately compensates the work of Mr. Wieczorek as the senior counsel in this matter, without affording a congressionally prohibited windfall.
[¶16] Defendant objects to the compensation of Ms. Hirsch at the same rate as Mr. Wieczorek. The Court agrees. When determining a reasonable fee, it is axiomatic that the experience and expertise of the attorney must be considered. While the Court believes that Ms. Hirsch performed quite competently on behalf of her clients, it cannot conclude that a billing rate of $150 per hour would be in line with what is commonly charged by other new attorneys in the community. Given this concern and in furtherance of avoiding a congressionally prohibited windfall, the Court finds that a reasonable billing rate for Ms. Hirsch is $105 per hour.
[¶17] Based upon the foregoing, the following represents the lodestar in this case:
Talbot Wieczorek 234.40 x $150 = $ 35,160.00 Sarah Hirsch 191.10 x $105 = $ 20,065.50 Total $ 55,225.50
[¶18] 3. Requested Enhancement
[¶19] Although the Court may enhance the lodestar amount based upon the factors adopted in Avalon Cinema Corp., 689 F2d at 139, the Court declines to do so in this case. Plaintiffs seek an enhanced hourly billing rate for both Mr. Wieczorek and Ms. Hirsch of $175. This enhancement is sought based upon both the complexity and difficulty of the case as well as the amount of success realized on the merits. While the Court agrees that the law of sexual harassment has become increasing complex in recent years, attorneys for plaintiffs have been adequately compensated in this regard through the hours billed in the initial lodestar figure. Any extra time needed to research and review recent changes in case law has been included in the lodestar figure. To provide an additional enhancement would result in an inappropriate windfall.
[¶20] Further, although the Court acknowledges and has carefully considered the success achieved on the merits of this case, the Court strongly believes that the lodestar figure already provides excellent compensation for the work of plaintiffs' attorneys. Therefore, the Court will not enhance either attorney's hourly billing rate to $175. The Court has also considered the remaining factors as adopted in Avalon Cinema Corp., 689 F2d at 139, and finds that they do not dictate any increase or decrease in the lodestar rate. Finally, the Court finds that an hourly billing rate of $60 reasonably compensates the work of Gunderson Palmer support staff in this matter (15.70 hours x $60 = $942).
[¶21] 4. Reasonable Expenses
[¶22] In plaintiffs' original motion for attorneys' fees, plaintiffs requested that $136.92 in expenses be awarded for Westlaw electronic research fees. Plaintiffs have also filed a motion for additional attorneys' fees incurred in responding to defendant's post-trial motion for judgment as a matter of law and new trial. The additional attorneys' fees requested have been included in this Court's calculation of the lodestar figure, above. Similarly, the Court will discuss the two motions for reasonable expenses as if presented together. Plaintiffs' motion for additional expenses seeks an award which can be broken down as follows:
Court reporter fees $ 42.40 Photocopying expenses $ 70.75 Postage expenses $ 6.27 Miscellaneous office expenses $ 18.60 Westlaw electronic research $ 254.62 Fax charges $ 3.00 $ 395.64
[¶23] When plaintiffs' additional request is added to their initial request, it appears that they are seeking an award of expenses totaling $532.56 ($136.92 + $395.64).(fn8) Reasonable expenses, that is, expenses that lawyers ordinarily include in their bills to clients, are awarded to the prevailing party in Title VII cases as part and parcel of an award of attorneys' fees. See EEOC v. HBE Corp., 135 F3d 543, 558 (8th Cir. 1998) (citing Pinkham v. Camex, Inc., 84 F3d 292, 294-95 (8th Cir. 1996)). This motion is independent of an award of costs which is granted pursuant to Fed. R. Civ. P. 54. See Leftwich v. Harris-Stowe State College, 702 F2d 686, 694 (8th Cir. 1983). With one exception, the Court will grant plaintiffs' motion for award of reasonable expenses. The Court finds that plaintiffs' request for "miscellaneous office expenses" is too vague to support an award and the Court is not sure that such office expenses would ordinarily be billed to clients. Accordingly, the total award of expenses shall be reduced by $18.60, leaving a total award of $513.96 ($136.92 + $395.64 - $18.60 = $513.96). Finally, the Court notes that a charge of 6 percent sales tax shall be added to the final award.
[¶24] B. Attorneys' Fees and Expenses: Lynn Jackson
[¶25] Plaintiffs seek an award of attorney's fees and expenses on behalf of work done by the firm of Lynn Jackson. Defendant objects, urging that any bill submitted by Lynn Jackson be denied in its entirety. This Court agrees. In determining what fees to award plaintiffs for the work of Lynn Jackson, the Court must first decide whether plaintiffs can be considered a "prevailing party" as provided for in 42 USC § 2000e-5(k). See Tyler, 167 F3d at 1204. Lynn Jackson primarily represented plaintiffs in pursuit of their claim before the South Dakota Division of Human Rights ("SDDHR").
[¶26] Although plaintiffs filed a complaint with the SDDHR, they later voluntarily withdrew this complaint well before the division had an opportunity to investigate any of plaintiffs' allegations. In addition, this Court dismissed plaintiffs' claim against defendant under the South Dakota Human Relations Act of 1972 based upon their failure to exhaust administrative remedies before the SDDHR. Given the severable nature of this claim, the Court cannot find that plaintiffs were a prevailing party in regard to any issues for which they were originally represented by Lynn Jackson. Accordingly, plaintiffs' motion for an award of attorneys' fees and expenses on behalf of Lynn Jackson shall be denied.
III. CONCLUSION
[¶27] Based upon the foregoing discussion, the Court finds that defendant shall pay plaintiffs the following amounts for attorneys' fees and expenses submitted by Gunderson Palmer. No award shall be provided for the firm of Lynn Jackson.
Attorneys' fees (including support staff) $ 56,167.50 Reasonable expenses $ 513.96 South Dakota sales tax (6%) $ 3,400.89 Total award $ 60,082.35
[¶28] Accordingly, it is hereby
[¶29] ORDERED that plaintiffs' motion for attorneys' fees, along with reasonable expenses (Docket #79, #90), shall be granted as set forth above.
Footnotes
1. For their hostile work environment claim, plaintiffs were each awarded back pay, as well as $5,000 in compensatory damages and $30,000 in punitive damages. The jury also found for plaintiffs on their constructive discharge claim, awarding each only the nominal sum of $1.
2. 42 USC § 2000e-5(k) provides:
In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee ... .
3. The amounts listed in regard to Gunderson Palmer include the additional fees and costs incurred by plaintiffs in responding to defendant's post-trial motion for judgment as a matter of law and new trial. The bill was submitted in the form of a motion for additional attorneys' fees on March 9, 1999 (Docket #90).
4. The Court notes that plaintiffs have also submitted a bill on behalf of Gunderson Palmer attorney Don Knudsen for 3.5 hours of work. The Court has examined Mr. Knudsen's role in this case, as well as his billing records presented, and concludes that the 3.5 hours were spent consulting with fellow attorneys Wieczorek and Hirsch. The Court finds these hours to be excessive, and they shall not be included in the award of attorneys' fees set forth below. Furthermore, the Court has not been presented with an affidavit by Mr. Knudsen outlining his experience and qualifications and therefore, it has no way to discern what a reasonable hourly billing rate for Mr. Knudsen would be.
5. The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F2d at 717-719.
6. Defendant vehemently asserts that hours billed on behalf of Mr. Wieczorek and Ms. Hirsch should be reduced to reflect "[p]laintiffs' own choice to use two attorneys, which provided training for a new attorney [Ms. Hirsch] for which Porter Apple should not be required to pay." See Defendant's objections and memorandum in opposition to plaintiffs' motion for attorney fees at 8 (emphasis added). There has been no evidence presented, however, that the work of Ms. Hirsch was considered only "training" by Gunderson Palmer. Careful scrutiny of Gunderson Palmer billing records also does not support this contention.
7. At the time of trial in February 1999, Ms. Hirsch had been practicing for approximately 18 months.
8. Plaintiffs have also filed with the clerk their application for taxable costs and disbursements pursuant to Fed. R. Civ. P. 54. The Court has reviewed this application and notes that the expenses being sought currently are in no way duplicative of those being sought in their application for taxable costs and disbursements.