Free Order on Motion for Attorney Fees - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P laint iffs have filed a M otion for Attorney's Fees (Doc. #109) and a support ing Affidavit and Statement of Fees and Costs (Doc. #123). responses (Doc. ##113, 125). Defendants have filed two vs. Spectrum Sciences and Software, Inc., a Florida corporation, Natalie A. Espinoza, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 02-2619-PHX-DGC (lead) CV 02-2620-PHX-DGC CV 02-2621-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Plaintiffs claim that they are entitled to recover reasonable

att orneys' fees and costs under 42 U.S.C. § 2000e-5(k), which provides that a court in a Title VII action may, "in its discretion, . . . allow the prevailing party . . . a reas onable at t orney's fee . . . ." Defendant does not dispute that Plaintiffs are entitled to a fee award under the statute, but takes serious issue with the amount sought by Plaintiffs. Background Plaintiffs are prevailing parties for purposes of the fee statute. T he jury awarded

$300,000 to Plaintiff Hancock (subsequently reduced to $100,000 under the applicable statutory cap), $80,000 to Plaintiff Aguirre, and $3,100 to Plaintiff Espinoza. Plaintiffs seek to recover $109,940.00 in att orney s ' fees and $6,331.18 in costs, for a total of $116,271.18. Defendant argues that Plaintiffs did not p revail on all of their claims

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and takes issue wit h s ome of the amounts reflected in billing statements submitted by Plaintiffs. Plaintiffs. Analysis The Supreme Court has provided guidance on the awarding of attorneys' fees and costs in federal civil rights act ions , instructing that "[t]he most useful starting point for det ermining the amount of a reasonable fee is the number of hours reasonably exp ended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U .S. 424, 433 (1983). U sing this approach, Plaintiffs calculate a total fee amount of $109,940.00 for time recorded by the two attorneys and two p aralegals w ho worked on this matter. The Court finds this to be an appropriate starting point from which to address Defendant s ' various arguments. 1. Hourly Rates. Defendant argues that the Court s hould award no more than $15,000.00 to

D efendant argues that the $275 hourly rate of Plaintiffs' lead counsel, Jess Lorona, is unreasonably high, noting that the lead defense attorney charged only $200 p er hour t o Defendant. The fact t hat defense counsel charged less, however, does not establish that

M r. Lorona's rate is unreasonable in this marketplace, and Defendant has p rovided no other evidence on the subject. M r. Lorona has practiced law for more than 20 y ears and handled the trial in this case competently. An hourly rate of $275 is w it hin the reasonable range of rates for an attorney with this level of experience in the Phoenix market.

Defendants do not take issue with the hourly rates charged for the other attorney or the two paralegals employed by Plaintiffs. 2. Mixed S uccess.

Defendant argues that t he fee award should be reduced because Plaintiffs did not achieve complete success in the lit igat ion. T he Court agrees, but not to the extent argued

by Plaintiffs. See Hensley, 461 U.S. at 440 ("the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees.").
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Plaintiffs failed to s ucceed in Plaintiff Aguirre's claim for retaliation, Plaintiff Espinoza's claim for a hostile work environment, P laint iff Espinoza's constructive termination claim, and Plaintiff Hancock's attempt to recover los t wages. The success for Plaintiff Espinoza in particular was modest, with the jury awarding only $3,100 in damages. On the basis of these mixed res ult s , t he Court concludes that Plaintiffs' request for attorneys' fees should be reduced by 25%. This reduction reflects the fact that one of the Plaintiffs recovered only modest damages and that each P laintiff lost a portion of her claim. It also recognizes, however, that Plaintiffs generally prevailed against Defendant at trial. 3. S pecific Fee Issues.

Defendant takes issue with a number of time entries by Plaintiffs' counsel. Some of Defendant's objections have merit. Defendant notes that attorney M cClure sat through the ent ire trial but played no role in questioning witnesses or making arguments to the Court or jury. Tucker also attended the entire trial. Paralegal Janice

Given the fact that M r. Lorona handled the trial

himself, the Court concludes that the presence of both M r. M cClure and M s. Tucker was unneces s ary . The Court will reduce Plaintiffs' fee request by eight hours of M r. M cClure's trial time for each of t he four trial days. M ultiplied by M r. M cClure's hourly rate of $175, this 32 hours of trial time totals $5,600.00. Defendant complains about the amount of time recorded for t he preparation of jury demands, consideration of medical authorizations, identifying hotels for the trial week, and addressing lost wages. them unreasonable. The Court has reviewed each of these entries and does not find

Virtually all of the entries included a combined effort by an attorney

and a paralegal, with the paralegal generally handling the more routine and non-legal tasks. In addition, although M r. Lorona did spend time working on the lost wages claim, that fact has already been taken into account by the 25% reduction in attorneys' fees due t o the lack of success on the wage claim and others.

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4.

Contingent Fee Agreements.

Plaintiffs state that they signed contingency fee agreements that call for counsel to receive 40% of any amount recovered at trial. The Supreme Court has held that such

agreements do not limit the amount of reasonable attorneys' fees awarded in a federal civil rights action. See Blanchard v. Bergeron, 489 U.S. 87 (1989). Rather, a court should take the approach set forth in Hensley and determine a reasonable fee to be awarded. 5. Fee S ummary.

On the basis of the analysis set forth above, the Court will award Plaintiffs attorneys' fees in the amount of $78,255.00. This amount is calculated by starting with

$109,940.00, subtracting $5,600 for M r. M cClure's trial time, and reducing the remainder by 25%. This represents a reasonable fee award given the hours incurred, reasonable hourly

rates, reductions for unnecessary time, and the level of success achieved at trial. Other factors typically considered in determining an attorneys' fee award do not alter this result. Those factors include (1) t he novelty and difficulty of the questions at

issue, (2) the skill required to perform the legal service properly, (3) the preclusion of other employment due to acceptance of the case, (4) whether the fee is fixed or contingent, (5) time limitations imp os ed by t he client or the circumstances, (6) the experience, reputation, and ability of the attorneys, (7) t he undesirability of the case, (8) the nature and length of the professional relationship w it h the client, and (9) awards in similar cases. Blanchard, 489 U.S. at 91 n.5. See

Although the contingent nature of the fee agreement is a

factor to be considered, the Supreme Court, as already not ed, has held that a contingent fee agreement does not place a cap on the amount of fees recoverable.1

The Court notes t hat a 40% contingent fee in this case would be $73,240.00, not substant ially different from the $78,255.00 arrived at above. Defendant asks the Court to require production of the actual fee agreements, but the Court concludes that this is unnecessary. Plaintiffs' supporting affidavit discloses the essential t erms of t he fee agreements ­ a 40% cont ingent fee ­ and the Supreme Court has otherwise held
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6.

Costs. These include postage,

Plaintiffs seek to recover $6,331.18 in litigation cos ts.

deposition transcripts, photocopying, facsimile trans mis s ions, filing fees, process service, and comput eriz ed legal research. Such out-of-pocket expenses may be awarded in this

case. See Snell v . Reno H ilton Resort, 930 F. Supp. 1428, 1434 (D. Nev. 1996). The Court finds the costs to be reasonable. IT IS ORDERED: 1. Plaintiffs' M otion for Attorneys' Fees (Doc. #109) is granted in part and denied in part. 2. Plaintiffs are awarded $78,255.00 in attorneys' fees and $6,331.18 in litigation costs. DATED this 14th day of July, 2005.

that the agreement will not limit the fee award in this case.
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