Cohen v . Brown University CV-99-485-B 06/27/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Cohen, et a l .
v. Civil N o . 99-485-B Opinion N o . 2003 DNH 112 Brown University, et a l .
MEMORANDUM AND ORDER
Pending before me is defendants’ objection to the April 2 ,
2003 Report and Recommendation of Magistrate Judge David L .
Martin (“Report and Recommendation”) granting, in large part,
Plaintiffs’ Supplemental Motion for Attorneys’ Fees and Expenses.
See Cohen v . Brown Univ., N.H. Civ. Action N o . 99-485-B (Doc. N o .
2 3 ) , R.I. Civil Action N o . 92-197 (D.R.I. April 2 , 2003) (Doc.
No. 344). Plaintiffs prevailed in their underlying Title IX
litigation and received attorneys’ fees and expenses for
litigating the merits of their Title IX claim. See Report and
Recommendation, August 1 0 , 2001 (Martin, M . J . ) , accepted but modified in part by Memorandum and Order, December 5 , 2001
(Barbadoro, C . J . ) .
Pursuant to Fed. R. Civ. P. 72(b), I review the Magistrate
Judge’s Report and Recommendation de novo because I am required
to treat a motion for attorneys’ fees as I would a “dispositive
pretrial matter.” Fed. R. Civ. P. 54(d)(2)(D). I am free to
“accept, reject, or modify, the recommended decision, receive
further evidence, or recommit the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b).
Defendants raise four objections to the Report and
Recommendation. They argue that the Magistrate Judge erred i n :
(1) concluding that the Supplemental Fee Motion was timely
pursuant to Fed. R. Civ. P. 54(d)(2); (2) granting fees to
special fee counsel despite finding their retention by plaintiffs
was not “reasonably necessary;” (3) granting fees relating to a
protective order and discovery of defendants’ billing records;
and (4) failing to adequately reduce fees for certain redundant
and unnecessary work.
-2- I. Timeliness of Supplemental Motion1
I agree with the Magistrate Judge that defendants’
timeliness objection is without merit. Defendants argue that the
Magistrate Judge misconstrued Fed. R. Civ. P. 54(d)(2)’s
timetable for filing a supplemental fee petition. Rule
54(d)(2)(B) provides that a motion for attorneys’ fees and
related expenses must be filed no later than 14 days after entry
of judgment. Relying on Tennessee Gas Pipeline v . 104 Acres of
Land, 32 F.3d 632 (1st Cir. 1994), however, defendants argue that
plaintiffs should have submitted their supplemental motion for
attorneys’ fees and expenses prior to the determination of the
motion for attorneys’ fees for the underlying litigation. In
Tennessee Gas, the First Circuit stated that there should be
“some time limit within which a party must file an application
for supplemental fees and. . . it is reasonable to require. . .
that where possible, such application be made before the court
acts on the principal fee application.” Id. at 635. The
defendants in Tennessee Gas submitted their application for
1 The background underlying plaintiffs’ motion is set forth in great detail in the Magistrate Judge’s Report & Recommendation.
-3- supplemental fees before the 1993 Amendment to Rule 54(d) created
a timetable for the submission of a claim for attorneys’ fees. I
agree with the Magistrate Judge that the First Circuit’s concern
in Tennessee Gas appears to be with the lack of a time limit for
the filing of a supplemental application. As the 1993 Amendment
to Fed. R. Civ. P. 54(d)(2) created exactly that, I find the
quoted language from Tennessee Gas unpersuasive on this point.
In addition, I do not see the efficiency or logic in requiring
prevailing plaintiffs to supplement their fee applications
requesting “fees on fees” before they know if they are successful
in their principal motion for attorneys’ fees.
I find, as did the Magistrate Judge, that the plaintiffs
filed their supplemental motion within the permissible time
period set forth in Rule 54(d). Plaintiffs filed their
supplemental motion on February 2 8 , 2002, prior to the March 2 5 ,
2002, final judgment on their underlying motion for merits fees.
(Doc. N o . 2 2 ) . In addition, defendants’ argument that they were
“unfair[ly] surprise[d] and prejudice[d]” relying on White v . New
Hampshire Dep’t of Employment Security, 455 U.S. 445, 454 (1982),
is unpersuasive. Defendants’ “surprise” is in the fee amount
sought and not in the actual filing of the supplemental motion.
-4- As the Magistrate Judge correctly found, that is not the kind of
surprise that warrants the label “unfair.” See Report and
Recommendation at 7-8.
11. Special Fee Counsel
Plaintiffs retained Steptoe & Johnson (“Steptoe”), a law
firm based in Washington D.C., as special fee counsel. The
Magistrate Judge rejected plaintiffs' argument that the retention
of special fee counsel was reasonable because of Defendant's
"multitude of challenges" and found that plaintiffs "failed to
demonstrate that it was reasonably necessary for them to engage
special fee counsel, especially out-of-state fee counsel whose
usual hourly rates greatly exceed the hourly rate of the lead
counsel in the underlying action." Report and Recommendation at
12. Despite this finding, the Magistrate Judge awarded
attorneys' fees to Steptoe at the Rhode Island rate reduced by
ten percent for redundancy and inefficiencies.
I agree with the Magistrate Judge’s conclusion that the
retention of special fee counsel was not “reasonably necessary.”
Moreover, after reviewing plaintiffs’ billing records, it is
clear that the addition of another set of attorneys into an
-5- already large group of merits attorneys created great
inefficiency. For example, Attorney Leslie A . Brueckner, for
whom the Magistrate Judge permitted 173.4 hours totaling over
$43,000 dollars, billed for reviewing and revising Steptoe’s
analysis and several telephone calls with Steptoe attorneys. The
same is true for Tracy L . Hilmer, an attorney for Steptoe.
Hilmer billed for numerous conference calls with merits counsel
and charged for the editing of merits counsel’s affidavits and
time records. Although I do not question the value of conference
calls amongst co-counsel, it is clear that the addition of
another set of attorneys to confer with and to edit one another’s
work product inevitably created an additional layer of
consultation and review that was entirely unnecessary.
In sum, I agree with the Magistrate Judge that the retention
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Cohen v . Brown University CV-99-485-B 06/27/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Amy Cohen, et a l .
v. Civil N o . 99-485-B Opinion N o . 2003 DNH 112 Brown University, et a l .
MEMORANDUM AND ORDER
Pending before me is defendants’ objection to the April 2 ,
2003 Report and Recommendation of Magistrate Judge David L .
Martin (“Report and Recommendation”) granting, in large part,
Plaintiffs’ Supplemental Motion for Attorneys’ Fees and Expenses.
See Cohen v . Brown Univ., N.H. Civ. Action N o . 99-485-B (Doc. N o .
2 3 ) , R.I. Civil Action N o . 92-197 (D.R.I. April 2 , 2003) (Doc.
No. 344). Plaintiffs prevailed in their underlying Title IX
litigation and received attorneys’ fees and expenses for
litigating the merits of their Title IX claim. See Report and
Recommendation, August 1 0 , 2001 (Martin, M . J . ) , accepted but modified in part by Memorandum and Order, December 5 , 2001
(Barbadoro, C . J . ) .
Pursuant to Fed. R. Civ. P. 72(b), I review the Magistrate
Judge’s Report and Recommendation de novo because I am required
to treat a motion for attorneys’ fees as I would a “dispositive
pretrial matter.” Fed. R. Civ. P. 54(d)(2)(D). I am free to
“accept, reject, or modify, the recommended decision, receive
further evidence, or recommit the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b).
Defendants raise four objections to the Report and
Recommendation. They argue that the Magistrate Judge erred i n :
(1) concluding that the Supplemental Fee Motion was timely
pursuant to Fed. R. Civ. P. 54(d)(2); (2) granting fees to
special fee counsel despite finding their retention by plaintiffs
was not “reasonably necessary;” (3) granting fees relating to a
protective order and discovery of defendants’ billing records;
and (4) failing to adequately reduce fees for certain redundant
and unnecessary work.
-2- I. Timeliness of Supplemental Motion1
I agree with the Magistrate Judge that defendants’
timeliness objection is without merit. Defendants argue that the
Magistrate Judge misconstrued Fed. R. Civ. P. 54(d)(2)’s
timetable for filing a supplemental fee petition. Rule
54(d)(2)(B) provides that a motion for attorneys’ fees and
related expenses must be filed no later than 14 days after entry
of judgment. Relying on Tennessee Gas Pipeline v . 104 Acres of
Land, 32 F.3d 632 (1st Cir. 1994), however, defendants argue that
plaintiffs should have submitted their supplemental motion for
attorneys’ fees and expenses prior to the determination of the
motion for attorneys’ fees for the underlying litigation. In
Tennessee Gas, the First Circuit stated that there should be
“some time limit within which a party must file an application
for supplemental fees and. . . it is reasonable to require. . .
that where possible, such application be made before the court
acts on the principal fee application.” Id. at 635. The
defendants in Tennessee Gas submitted their application for
1 The background underlying plaintiffs’ motion is set forth in great detail in the Magistrate Judge’s Report & Recommendation.
-3- supplemental fees before the 1993 Amendment to Rule 54(d) created
a timetable for the submission of a claim for attorneys’ fees. I
agree with the Magistrate Judge that the First Circuit’s concern
in Tennessee Gas appears to be with the lack of a time limit for
the filing of a supplemental application. As the 1993 Amendment
to Fed. R. Civ. P. 54(d)(2) created exactly that, I find the
quoted language from Tennessee Gas unpersuasive on this point.
In addition, I do not see the efficiency or logic in requiring
prevailing plaintiffs to supplement their fee applications
requesting “fees on fees” before they know if they are successful
in their principal motion for attorneys’ fees.
I find, as did the Magistrate Judge, that the plaintiffs
filed their supplemental motion within the permissible time
period set forth in Rule 54(d). Plaintiffs filed their
supplemental motion on February 2 8 , 2002, prior to the March 2 5 ,
2002, final judgment on their underlying motion for merits fees.
(Doc. N o . 2 2 ) . In addition, defendants’ argument that they were
“unfair[ly] surprise[d] and prejudice[d]” relying on White v . New
Hampshire Dep’t of Employment Security, 455 U.S. 445, 454 (1982),
is unpersuasive. Defendants’ “surprise” is in the fee amount
sought and not in the actual filing of the supplemental motion.
-4- As the Magistrate Judge correctly found, that is not the kind of
surprise that warrants the label “unfair.” See Report and
Recommendation at 7-8.
11. Special Fee Counsel
Plaintiffs retained Steptoe & Johnson (“Steptoe”), a law
firm based in Washington D.C., as special fee counsel. The
Magistrate Judge rejected plaintiffs' argument that the retention
of special fee counsel was reasonable because of Defendant's
"multitude of challenges" and found that plaintiffs "failed to
demonstrate that it was reasonably necessary for them to engage
special fee counsel, especially out-of-state fee counsel whose
usual hourly rates greatly exceed the hourly rate of the lead
counsel in the underlying action." Report and Recommendation at
12. Despite this finding, the Magistrate Judge awarded
attorneys' fees to Steptoe at the Rhode Island rate reduced by
ten percent for redundancy and inefficiencies.
I agree with the Magistrate Judge’s conclusion that the
retention of special fee counsel was not “reasonably necessary.”
Moreover, after reviewing plaintiffs’ billing records, it is
clear that the addition of another set of attorneys into an
-5- already large group of merits attorneys created great
inefficiency. For example, Attorney Leslie A . Brueckner, for
whom the Magistrate Judge permitted 173.4 hours totaling over
$43,000 dollars, billed for reviewing and revising Steptoe’s
analysis and several telephone calls with Steptoe attorneys. The
same is true for Tracy L . Hilmer, an attorney for Steptoe.
Hilmer billed for numerous conference calls with merits counsel
and charged for the editing of merits counsel’s affidavits and
time records. Although I do not question the value of conference
calls amongst co-counsel, it is clear that the addition of
another set of attorneys to confer with and to edit one another’s
work product inevitably created an additional layer of
consultation and review that was entirely unnecessary.
In sum, I agree with the Magistrate Judge that the retention
of special fee counsel was not reasonably necessary and further
reduce the amount of fees Magistrate Judge Martin granted by an
additional ten percent. See Report & Recommendation at 30
(awarding “fees on fees”, with the Magistrate Judge’s reductions,
of $253,651).
For the reasons discussed above, the “fees on fees” award
granted by the Magistrate Judge will be modified as follows:
-6- “Fees on Fees” Firm Timekeeper Hours Rate Total Roney & Labinger Lynette 302.94 $210.00 $63,617.40
Labinger Jean Medieros 24.12 $75.00 $1,809.00 Subtotal $65,426.40 TPLJ Arthur Bryant 36.72 $305.00 $11,199.60 Leslie 156.06 $250.00 $39,015.00
Brueckner Subtotal $50,214.60 Steptoe & Johnson Roger Warin 5.58 $210.00 $1,171.80 Tracy Hilmer 122.13 $175.00 $21,372.75 Lindsey Lang 366.93 $200.00 $73,386.00 Susan Knupp 90.99 $75.00 $6,824.25 Christine 63.54 $75.00 $4,765.50
Zemina Karen Tucker 11.16 $75.00 $837.00 Tami Cohen 71.46 $60.00 $4,287.60 Subtotal $112,644.90 Total $228,285.90
-7- III. Discovery of Defendants’ Billing Records and Related Protective Order
Defendants also argue that the Magistrate Judge erroneously
concluded that because discovery of their billing records was
“‘reasonably necessary,’ all time spent related to the discovery
is automatically deemed reasonable.” Defs.’ O b j . to Report and
Recommendation at 1 7 . Despite the Magistrate Judge’s finding
that discovery was “reasonably necessary,” it does not
necessarily follow that the hours spent litigating discovery were
not excessive or redundant. After independently reviewing all
attorneys’ time descriptions involving discovery, however, I find
that the amount billed for discovery was not excessive. As such,
I accept the Magistrate Judge’s findings concerning fees related to discovery.2
Defendants present the identical argument for the fees the
Magistrate Judge permitted for plaintiffs’ successful opposition
to defendants’ request for a protective order. Defendants sought
2 In addition, I note that there were multiple entries in Attorney Lang’s time descriptions that were vague and prevented me from accurately calculating the amount of time she billed for discovery. The Magistrate Judge noted this problem in Attorney Lang’s time descriptions (in a different context) and reduced her fees by an additional five percent
-8- a protective order to prevent the dissemination of fee
information they were forced to produce as a result of
plaintiffs’ discovery request. Because the plaintiffs were
ultimately successful in opposing defendants’ request for a
protective order and the hours billed related to the protective
order were not excessive, plaintiffs are entitled to compensation
for the time billed opposing the protective order.
IV. Defendants’ Redundancy Argument
Defendants argue that the plaintiffs’ “[s]upplemental fee
petition. . . far exceeds the number of hours reasonably
necessary and legally compensable for work on the initial fee
petition.” Defs’ O b j . to Report & Recommendation at 2 0 .
Specifically, defendants assert that “[p]laintiffs spent an
inordinate [amount of] time reviewing Brown’s records and
exhibits and much time and effort unsuccessfully claiming a right
to compound interest on attorney[s’] fees.”3 Defs’ O b j . to Report
3 Defendants also argue that the Magistrate Judge should have reduced the fee request for time that merits counsel spent as “client” to Steptoe. Because, in section II of this Order, I discounted the fee award for conferencing and editing between merits counsel and Steptoe, I have already reduced the fee award for time merits counsel spent as “client.” I therefore decline to further reduce the award for merits counsels’ time billed as “client.”
-9- and Recommendation at 1 9 . I disagree. After reviewing the
billing records supplied to the Magistrate Judge by the parties,
I do not find the amount of time spent reviewing Brown’s records
and exhibits was excessive. In addition, I note that plaintiffs
wrote off much of the time they spent researching and writing the
compounded interest issue. For example, Steptoe Attorney Lang
wrote off time she spent researching, drafting and revising the
“interest section of the reply brief.” See Lang (1/31/00 2/02/00
and 8/13/01). As such, I decline to reduce the plaintiffs’ award
further on this basis.
CONCLUSION
After reviewing Magistrate Judge Martin’s April 1 1 , 2003
Report & Recommendation, (Doc. N o . 2 3 ) , I accept it with the
modifications noted in section II of this Memorandum and Order.
The litigation for attorneys’ fees in this case has evolved into
a “second major litigation,” Hensley v . Eckerhart, 461 U.S. 4 2 4 ,
437 (1983). Hence, this shall be the last award of attorneys’
fees in this case.
-10- SO ORDERED.
Paul Barbadoro Chief Judge
June 2 7 , 2003
cc: Raymond Marcaccio, Esq. Lynette Labinger, Esq. Arthur Bryant, Esq. Sandra Duggan, Esq. Amato DeLuca, Esq. Julius Michaelson, Esq. Beverly Ledbetter, Esq. Clerk, USDC-RI
-11-