Legault v. ARusso CV-93-365-B 03/29/96

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Michelle Legault R .I . Civil No. 93-CB-243-P v. N.H. Civil No. 93-365-B Ralph aRusso, et al.

O R D E R

I signed a consent order on April 5, 1995, awarding Michelle Legault judgment against the Town of Johnston on her claims alleging violations of 42 U.S.C.A. § 2000e et seg. (Title VII),

42 U.S.C.A. § 1983, R.I. Gen. Laws § 22-5-1 et seg., and R.I. Gen. Laws § 42-112-1 et seg. Accordingly, the Town does not dispute Legault's claim that she is entitled to recover reasonable attorneys' fees as a prevailing party under 42 U.S.C.A. §§ 2000e-5(k), 42 U.S.C.A. § 1988, and R.I. Gen. Laws. § 42-112-2. On December 30, 1995, I issued an order sanctioning defendants Ralph aRusso and Alan Zambarano, and their counsel, Thomas DiLuglio, pursuant to Federal Rules of Civil Procedure 11 and 26(g) and directing them to "each personally reimburse Legault for one-third of the reasonable attorneys' fees she incurred as a result of the misconduct described in [the] memorandum and order." In this order, I evaluate Legault's fee petition and apportion the fees among the Town and defendants Zambarano, aRusso, and DiLuglio.

I. STANDARD OF REVIEW

The determination of a fee award is largely within the court's discretion. Tennessee Gas Pipeline v. 104 Acres of Land,

32 F.3d 632, 634 (1st Cir. 1994); Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir. 1993); United States v. Metropolitan Dist. Comm'n ., 847 F.2d 12, 16 (1st Cir. 1988). To determine whether plaintiff's fee reguest is reasonable, I multiply the total number of hours productively spent working on the successful claims by a reasonable hourly rate and then use this amount as a "lodestar" in determining the actual award. Phetosomphone v. Allison Reed Group, 984 F.2d 4, 6 (1st Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)); Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992); Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 526 (1st Cir. 1991). To determine hours, I begin with the total billable time suggested by plaintiff, then, using my discretion, I subtract any time which was "unproductive, excessive, or duplicative." Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984). In doing so, I must be skeptical of the use of two or more lawyers where one would do. Lipsett, 975 F.2d at 938.1

The reasonable hourly rate is the market rate for similar worked performed by an attorney of similar skill, experience, and reputation in the same community. Bordanaro v. McLeod, 871 F.2d 1151, 1168 (1st Cir.) (citing Blum v. Stevenson, 104 S.Ct. 1541, 1547 n.ll (1984)), cert, denied, 493 U.S. 820 (1989). The party requesting fees must provide evidence of the market rate other than the attorneys' affidavits, and I must make a finding as to the market rate. See Bordanaro, 871 F.2d at 1168.

Although the lodestar amount is presumed reasonable, I may adjust it depending on particular circumstances, such as the degree of success of the prevailing party. Pearson v. Fair, 980 F.2d 37, 46 (1st Cir. 1992); Lipsett, 975 F.2d at 937. I may also include as "attorneys' fees" other reasonable out-of-pocket expenses, necessary to the litigation, which an attorney would normally charge to a client. Mennor v. Fort Hood Nat. Bank, 829 F.2d 553, 556 (5th Cir. 1987) (collecting cases supporting proposition that § 2000e-5(k) allows recovery of reasonable costs); Palmiqiano v. Garrahv, 707 F.2d 636, 637 (1st Cir. 1983) (in § 1983 action, district court properly awarded reimbursement for attorneys' lodging, parking, food, and telephone expenses pursuant to § 1988). Computer-assisted research, for example, may be a reasonable out-of-pocket expense. See, e.g., Anne Dailey v. Societe Generale, No. 94 Civ. 1649, 1996 WL 71320,[*15] (S.D.N.Y. Feb. 14, 1996); David C. v. Leavitt, 900 F.Supp. 1547, 1565 (D.Utah 1995). But see Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir. 1983) (cost of computer- assisted research must be included in attorneys' hourly rate). I may also award fees for expert witnesses under 42 U.S.C.A. 2000e-

5 (k), but not under § 1988, which allows recovery of expert fees only for proceedings to enforce §§ 1981 and 1981a, not § 1983.

Plaintiff also asks for costs pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. §§ 1920. Section 1920 defines the costs which may be awarded under Rule 54. In re Two Appeals Arising Out of San Juan Dupont Plaza Hotel Fire, 994 F.2d 956, 962 (1st Cir. 1993). The general language of §§ 1988 and 2000e-

5 (k) may not be used to intrude upon the area of costs explicitly governed by § 1920; expenses explicitly prohibited by § 1920 cannot be awarded as out-of-pocket expenses or attorneys' fees; expenses awarded under § 1920 cannot be reduced by resort to caselaw developed under §§ 1988 and 2000e-5(k). See West Virginia Univ. H o s p s . Inc. v. Casev, 499 U.S. 83, 86 (1991); Phetosomphone, 984 F.2d at 9 n.6 ("[s]ection 2000e-5(k) does not alter the standard by which the court awards costs that are not attorneys' fees pursuant to Rule 54(d)," (internal quotations omitted)). With these standards in mind, I first turn to the merits of Legault's fee petition. I then address her request for expenses and apportion the approved fees among the Town and the sanctioned parties.

II. LEGAULT'S FEE PETITION

Defendants have offered only nonspecific and poorly supported objections to Legault's fee petition. Relying solely on these objections, it is unlikely that any significant reduction to the requested fees would be warranted. However, when public funds are at stake, I have a duty to critically review fee petitions, even if the target of the petition mounts "no meaningful opposition." Foley v. City of Lowell, Mass., 948 F.2d 10, 19 (1st Cir. 1991). I begin this review by first addressing defendants' claim that the requested rate of $175 per hour is unreasonable. I then examine the reasonableness of the hours charged by dividing the charges into the following categories: (1) complaint preparation and pre-complaint settlement efforts; (2) charges associated with Legault's reguest for a preliminary injunction; (3) discovery charges; (4) charges associated with Legault's sanctions motion; (5) charges for other motions, pleadings, and hearings; (6) charges related to post­ complaint settlement efforts; (7) fee petition charges; (8) other miscellaneous charges; and (9) travel charges.^[2] The results of this review are summarized in the appendix attached to this order.

A. The Hourly Rate

Defendants object to counsel's reguested rates of $87.50 per hour for travel charges and $175 per hour for all other charges, but they offer no evidence in support of their objection. Plaintiff's lead counsel, Ina Schiff, submitted an affidavit from another attorney practicing in Rhode Island indicating that $175 per hour is the market rate for an attorney of Schiff's experience.^[3] Since this assertion is unrebutted, I accept it and determine that the proposed rates are reasonable. As I describe in detail in the next section, however, while the hourly rates charged by plaintiff's counsel are reasonable as a general matter, Legault has submitted time charges at $175 per hour for a number of tasks that could have been completed by clerical staff, paralegals, or associates at much lower hourly rates. Therefore, I have reduced the amount awarded for certain charges to take this concern into account.

B. The Requested Charges4

that he is at least as skilled and gualified as Schiff. Moreover, Spaloss has been a practicing attorney for thirty-five years, and he is highly regarded in the New Hampshire legal community. Therefore, I have no reason to guestion the reasonableness of a $175 per hour rate for Spaloss's time.

1. Complaint Preparation

Legault claims $3,237.50 for work performed in connection with the preparation of the complaint. I have included in this category charges of $1,207.50 for time expended in attempting to settle the claim prior to filing the complaint. I conclude that these time charges are reasonable. Therefore, I approve them in full.

2. Preliminary Injunction

One of the most significant events in this case was the preliminary injunction Legault obtained reguiring the Town to employ her as a firefighter pending the outcome of the case. In order to obtain this relief, Legault had to participate in a hearing before the Magistrate Judge and later persuade me that the relief the Magistrate Judge proposed was inadeguate. Legault claims that she should be compensated for 117.9 hours of time spent researching and drafting pleadings and preparing for and attending the preliminary injunction hearing. Therefore, she reguests $20,632.50 for fees incurred in obtaining the preliminary injunction.

Although the preliminary injunction was an important event, I am unconvinced that it merited 117.9 hours of attorney time. First, Legault charges for time spent by both Schiff and Spaloss in attending the hearing, when only one lawyer was needed. Second, Legault has submitted charges for more than 70 hours her counsel spent researching and drafting pleadings in connection with the preliminary injunction motion.^[5] Having carefully examined the pleadings Legault submitted in support of her preliminary injunction reguest, I conclude that they are of poor guality and were of limited value to the court. Further, a reasonable attorney charging $175 per hour would not have spent any where close to 70 hours in researching and drafting pleadings of such poor guality. Accordingly, I strike 15 hours from Legault's fee reguest and approve only $18,007.50 of the $20,632.50 in charges she submitted in this category.

that she was not able to support.^[7] As a result, considerable time was wasted in litigating unsuccessful arguments. Finally, even if all of Legault's efforts had been productive, it is inconceivable that a competent lawyer charging $175 per hour would have expended the time Legault's lawyers did in litigating the sanctions motion. For these reasons, I reduce Legault's reguest by 80 hours and approve $16,450 of the $30,450 reguested.

require the work of two attorneys charging $175 per hour for their time. Instead, much of the work needed to prepare the fee petition and fee summary could have been performed by clerical staff or paralegals, whose time could have been charged at lower rates. Therefore, I subtract twenty hours from the time requested, and award 31.5 hours, totaling $5,512.50 for charges incurred in preparing the fee petition.

have had to travel to Concord simply to file Legault's motion for preliminary injunction, although they both billed for travel time for this activity. Further, Legault's attorneys do not explain why Spaloss had to travel to Rhode Island to work on the fee petition twice in three days. Therefore, I deduct 33.5 hours for time spent unnecessarily travelling to these events and award fees for 69.5 hours of travel, totaling $6,081.25.

10. Summary

In summary, I approve $154,393.75 of the $193,200 in fees Legault has reguested.

Ill. Out-of-pocket Expenses and Costs

Schiff's submission supporting Legault's reguest for $26,968.71 in costs is flawed in two ways. First, Schiff has combined her out-of-pocket expenses, to which Legault is entitled under 42 U.S.C.A. §§ 2000e-5(k) and 1988, and R.I. Gen. Laws 42- 112-2, with her costs, to which she is entitled under 28 U.S.C.A. § 1920. As these statutes govern different kinds of expenses, in order to adeguately evaluate Legault's reguest, I must know which expenditures Schiff is counting as out-of-pocket expenses and which as "costs" within the meaning of 28 U.S.C.A. § 1920. See Phetosomphone, 984 F.2d at 9 n.6.

Second, for out-of-pocket expenses which Legault is requesting as attorneys' fees, Schiff's cost "summary" does not meet the First Circuit's requirement of contemporaneity. See Weinberger, 925 F.2d at 527. The summary appears to have been created solely for the purpose of the fee petition. Furthermore, I ordered Schiff to supply contemporaneous billing records because her original submission of attorney hours, which was also a summary, failed to satisfy the contemporaneity requirement. The records Schiff submitted do not directly correspond with the entries in the cost summary. For example, Schiff records an expense of $3,800.00 on May 4, 1994, for paying an expert fee on day 366 of the litigation, but there is no record of such expense on May 4, 1994, in the contemporaneous records Schiff submitted. Therefore, I deny Legault's request for expenses and costs without prejudice and give her ten days to submit her expenses in a new, properly supported motion.

Johnston produced any evidence which would allow me to conclude that any of Legault's fees (other than the fees related to the litigation of the sanctions motion) were incurred because of the sanctioned misconduct. Therefore, I limit the amount of the sanction to fees incurred by Legault in litigating the sanctions motion. Accordingly, DiLuglio, aRusso, and Zambarano shall each be responsible for one-third of the $16,450 in reasonable fees Legault incurred in litigating the sanctions motion.

B. The Town's Liability for Fees Incurred in Litigating the Sanctions Motion

Because Legault is a "prevailing party" against the Town, she is entitled to recover all of the reasonable fees that she incurred in litigating the claims on which she prevailed. This includes fees incurred in litigating the sanctions motion. Although aRusso, Zambarano, and DiLuglio are also each liable for one-third of the $16,450 in reasonable fees incurred in litigating the sanctions motion, this does not relieve the Town of its obligation to pay those fees. Instead, the Town will be entitled to recover from the sanctioned parties any portion of the fees it pays to Legault that were incurred in connection with the sanctions motions.

V. CONCLUSION

Legault is entitled to recover attorneys' fees from the Town of Johnston totalling $154,393.75. Her claim for expenses is denied without prejudice to her right to file a separate motion for expenses within the next ten days. Zambarano, aRusso and DiLuglio are each liable for one-third of the $16,450 in reasonable fees Legault incurred in litigating the motion for sanctions. To the extent that the Town pays Legault for fees incurred in litigating the sanctions motion, the Town shall have a right to recover from aRusso, Zambarano, and DiLuglio their respective shares of the fees they are obligated to pay pursuant to this order.

SO ORDERED.

Paul Barbadoro, United States District Judge for the District of New Hampshire (Sitting by Designation)