Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:02-cv-02220-PSF-PAC

Document 139

Filed 11/03/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 02-cv-2220-PSF-PAC KAREN LEVELLE, as personal representative for the Estate of Ray LeVelle, Plaintiff, v. PENSKE LOGISTICS, a subsidiary of PENSKE TRUCK LEASING, Defendant. DEFENDANT'S MEMORANDUM ON ATTORNEYS' FEES' ISSUES

Defendant Penske Logistics, by and through its attorneys, Franklin A. Nachman of Littler Mendelson, P.C., in accordance with the agreement of the parties and the Order of this Court, submits the following Memorandum on Attorneys' Fees' Issues. THE COURT SHOULD SUBSTANTIALLY REDUCE THE $111,949.50 FEE AWARD 1. Plaintiff Failed To Prevail On Two Of His Three Claims, Including A State Law Claim For Which Fees Are Not Recoverable.

Defendant largely discussed this issue in its Response to Plaintiff's Motion for an Award of Attorneys' Fees, filed after trial and before the appeal of this case. It is undisputed that Plaintiff did not prevail on his Title VII (race discrimination) and wrongful discharge (retaliation for filing workers' compensation) claims, for which the court granted summary judgment in Defendant's favor. Neither of these claims were sufficiently related to the successful ADA claim to justify an award of attorneys' fees for the time spent pursuing them. As previously argued, the

Case 1:02-cv-02220-PSF-PAC

Document 139

Filed 11/03/2006

Page 2 of 5

focus of those claims differed from that of the ADA claim, and the fee award should be reduced to reflect this fact. Courts have reduced an award of fees when the unsuccessful claims were not an integral part of the trial. See Eshelman v. Agere Systems, Inc., 17 AD Cases (BNA) 748 (E.D. Pa. 2005), in which the district court reduced the fee award in an ADA discrimination case, where Plaintiff failed to prevail in his claims for violation of the ADEA and for alleged retaliation in violation of the ADA. See also, Lannie v. New Jersey, 259 F.3d 146 (3rd Cir. 2001) (reduction for

unsuccessful claim that did not contribute to success of ADA claim); and Webner v. Titan Distribution, Inc., 15 AD Cases (BNA) 181 (N.D. Iowa 2002) (reduction for unsuccessful claim, including state law claim where attorneys' fees could not be awarded to prevailing party). As previously noted in Defendant's Petition to Review Costs, approximately 15 percent of Plaintiff's deposition and 15 percent of Jo Ward's deposition pertained to the two dismissed claims, while approximately 32 percent of the Gael Conway deposition consisted of inquiry into the dismissed claims, most of which concerned the Title VII race discrimination claim. 2. The Fee Award Must Also Be Reduced Because The Tenth Circuit Vacated The Punitive Damages Award.

The Court of Appeals for the Tenth Circuit entered judgment as a matter of law in Defendant's favor on Plaintiff's claim for punitive damages. In doing so, it reduced the total judgment of $88,500 by $50,000 to $38,500, a reduction of approximately 56-1/2 percent of the total award. In Webner v. Titan Distribution, Inc., supra, the District Court reduced the

attorneys' fee award across the board after the Court of Appeals reversed the punitive damage claim in favor of the plaintiff, and by doing so, reduced a majority of the total damage award.

2

Case 1:02-cv-02220-PSF-PAC

Document 139

Filed 11/03/2006

Page 3 of 5

Because the Tenth Circuit substantially reduced the award in this case, the analysis and result in the Webner case apply equally well to this case. 3. Certain Time Entries Were Not Appropriate And Should Not Be The Basis Of A Fee Award

Defendant already addressed most of these issues in its previous Response to Plaintiff's Motion. In Parrish v. Sollecito 280 F. Supp. 2d 145 (S.D.N.Y. 2003) the district court held that time spent by a Title VII Plaintiff's counsel in opposing Defendants' motion to strike part of the complaint held by the court to be immaterial, impertinent, and scandalous would be excluded from an award of attorneys fees. Likewise, time spent on Plaintiff's unsuccessful Motion for Partial Summary Judgment and for responding to Penske's successful motion for summary judgment on the Title VII and wrongful discharge claims should be disallowed. 4. The Presence of Two Attorneys At Trial Was Not Justified, and No Fees Should Be Awarded For A Second Counsel

Defendant also discussed this issue in its Response to Plaintiff's Petition for Attorneys' Fees. Additional support for the proposition that two attorneys were not necessary for the trial of this case are Lannie v. New Jersey, supra, (ordering a 25 percent reduction); McDonough v. City of Quincy, 353 F. Supp. 2d 179 (D. Mass. 2005) (disallowed for trial time in Title VII case); and Shrader v. OMC Aluminum Boat, Inc., 128 F.3d 1218 (8th Cir. 1997), in which the district court properly reduced fees for a second attorney where the court deemed the presence of a second counsel at trial unnecessary. The experience of lead counsel was a factor in the court's decision. It should be in this case as well.

3

Case 1:02-cv-02220-PSF-PAC

Document 139

Filed 11/03/2006

Page 4 of 5

5.

Plaintiff Is Not Entitled To An Enhancement Of the Lodestar Amount. A fee

Defendant also analyzed this issue in its Response to Plaintiff's Motion.

enhancement from the lodestar amount is even less justified at this juncture of the litigation, given the Tenth Circuit's decision, which substantially lowered the amount of the judgment in this court. An award of $38,500, which was far less than Plaintiff sought, cannot be considered an extraordinary result, which is one of the requirements from the case law in this circuit. If anything, the lodestar amount should be revised downward. In McKnatt v. Delaware, 369 F. Supp. 2d 521 (D. Del. 2004) Plaintiff's mixed success in a Title VII case, in which two of the four claims were successful, warranted a downward adjustment of the lodestar amount. The district court held the original lodestar of $79,958 was not reasonable compared to the $80,000 awarded to the Plaintiff. In this case, the amount of attorneys' fees sought is now nearly three times the amount of the damages awarded to Plaintiff. CONCLUSION In view of the fact that Plaintiff did not prevail on two of the three claims in this action, two counsel were not needed at trial, and because the Court of Appeals for the Tenth Circuit significantly reduced the amount of the jury's award when it entered Judgment As A Matter Of Law on the punitive damages claim, the initial fee award should be significantly reduced from the $111,949,50 sought by Plaintiff's counsel.

4

Case 1:02-cv-02220-PSF-PAC

Document 139

Filed 11/03/2006

Page 5 of 5

Dated this 3rd day of November, 2006

Respectfully submitted,

s/ Franklin A. Nachman Franklin A. Nachman LITTLER MENDELSON A Professional Corporation 1200 17th Street, Suite 1000 Denver, CO 80202.5835 Telephone: 303.629.6200 ATTORNEYS FOR DEFENDANT PENSKE LOGISTICS, A SUBSIDIARY OF PENSKE TRUCK LEASING

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of November, 2006, a true and correct copy of the foregoing DEFENDANT'S MEMORANDUM ON ATTORNEYS' FEES' ISSUES was electronically filed and served via the CM/ECF system which will send notification of such filing to the following. The duly signed original is on file at the office of Littler Mendelson, P.C.: Patricia S. Bangert, Esq. Attorney at Law, LLC 3773 Cherry Creek Drive No., Suite 575 Denver, CO 80209 Teresa Zoltanski 709 Clarkson Denver, CO 80218

s/ Gale S. Antczak
Firmwide:81624057.1 025981.1020

5