Legault v. ARusso

• Court: District Court, D. New Hampshire
• Decided: March 29, 1996
• Docket: CV-93-365-B
• Status: Published

Opinion

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

2 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

1 Although Legault bases her fee request on three different statutes, the parties do not contend that different standards apply under each statute. Nor do they contend that Legault's fees are separable, so that I could perform a separate calculation for each. Therefore, I apply the same general principles to determine how much to award Legault under all three statutes.

3 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

4 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

5 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

2 It is sometimes difficult to determine which of several categories most appropriately describe a particular charge. Nevertheless, I have divided the charges into categories because it is the most effective way to evaluate this substantial fee reguest.

3 Legault did not include any evidence concerning the reasonableness of charging the same rate for her co-counsel, Henry Spaloss. However, Spaloss demonstrated in this litigation

6 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.

4 "[T]o recover fees, attorneys must submit a full and precise accounting of their time, including specific information about number of hours, dates and the nature of the work performed." Deary v. Gloucester, 9 F.3d 191, 197-98 (1st Cir. 1993). "[T]he absence of detailed contemporaneous time records, except in extraordinary circumstances, will call for a substantial reduction in any award, or, in egregious cases, disallowance." Grendel's Den, 749 F.2d at 952. Schiff is well aware of this reguirement since the Rhode Island District Court denied her client's reguest for fees in a prior case in part because she failed to submit contemporaneous records. See Pontarelli v. Stone, 781 F. Supp. 114, 122 (D.R.I.), appeal dismissed, 978 F.2d 773 (1992). Nevertheless, she inexplicably failed to submit contemporaneous time records in this case until the court ordered her to do so on March 22, 1996. Having reviewed Schiff's contemporaneous time records against the summary she initially provided, I find that, with minor exceptions, the summary accurately reflects her contemporaneously recorded charges.

7 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.

3. Discovery

Legault claims that her attorneys reasonably spent 257.1

hours, totaling $44,992.50, for time devoted to activities

associated with discovery. This includes 84 hours for drafting,

reviewing, and responding to discovery reguests; approximately 90

hours for interviewing and deposing witnesses; approximately 30

5 I have included time spent in conducting general legal research on Title VII issues in this category. Since this research is not tied in the fee petition to any specific activity, it is possible that they were incurred for some other purpose. However, I have placed the charges in this category because, given the time when the research was conducted, it most likely was related to the preliminary injunction motion. hours for general investigation and examination of documents; and

approximately 50 hours for litigating discovery disputes.

I recognize that defendants were generally uncooperative and

that they often did not provide timely or complete responses to

Legault's discovery reguests. However, even if I make

substantial allowance for the added time caused by defendants'

misconduct, I cannot accept Legault's time charges for discovery.

This case involved a sex discrimination in hiring claim by a

single plaintiff. Unlike many sex discrimination claims premised

on a disparate impact theory, this case was not factually complex

and it did not reguire extensive discovery. Under these

circumstances, it should not have taken a reasonably skilled

lawyer charging $175 per hour 84 hours to draft discovery

responses and to respond to the defendants' reguests, since much

of the work charged at $175 per hour could have been performed by

paralegals or associates at a much lower hourly rate. Nor would

a reasonably skilled lawyer charging $175 per hour have incurred

time charges of more than 50 hours in litigating the discovery

disputes. Finally, it was unnecessary for both lawyers to attend

many of the depositions and Accordingly, I reduce Legault's

claimed hours in this area from 257.1 to 221.1 and approve

$38,867.50 of the $44,992.50 in reguested charges.

10 4. Sanctions

Legault initially sought to have judgment entered against

the defendants in a motion for sanctions she filed on April 4,

1995. Legault subseguently filed a reply memorandum and three

supplemental memoranda in support of her reguest.6 I held a

hearing on the motion on April 29 and May 2, 1994. After I

issued an order granting the motion in part, Legault submitted a

memorandum opposing defendants' motion to reconsider the

sanctions order. Legault seeks compensation for 174 hours,

totaling $30,450.00 for work performed in connection with the

sanctions motion.

Having presided over the sanctions hearing, and having

carefully reviewed the pleadings submitted in support of

Legault's sanctions reguest, I conclude that the charges

submitted in connection with the motion were excessive for the

following reasons. First, the pleadings Legault submitted on the

sanctions issue were rambling, repetitive, and poorly researched.

Second, although Legault was partially successful, she made a

number of serious allegations in support of the sanctions motion

I struck the final memorandum because it was unsolicited and came after I had given Legault a full and fair opportunity to identify any evidence supporting her motion during the sanctions hearing.

11 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.

5. Other Motions, Pleadings, and Hearings

Legault reguested a total of 43.3 hours for work on her pre­

trial memorandum. This is far longer than a reasonable attorney

charging $175 per hour would have taken to produce the same

memorandum. Legault's motion to extend time to file her fee

petition and supplementary memorandum in support were unhelpful

to the court; I granted her motion, but on grounds she failed to

raise. Her motion for instructions was similarly unhelpful, and

should not have taken 4.3 hours of work to draft. Therefore, I

subtract 25 hours from the 86.3 she reguests for these tasks, and

award 61.3 hours, totalling $10,727.50 for plaintiff's attorneys'

work on other motions, pleadings, and hearings.

7 I reject defendants' contention, however, that Legault's claims were so lacking in merit as to subject her lawyers to sanctions for pursuing them.

12 6. Settlement

Undoubtedly, the prolonged settlement process in this case

was not entirely the fault of Legault's attorneys. However, the

approximately 150 hours they spent preparing settlement

documents, attending court-sponsored conferences, and

communicating with opposing counsel is excessive. Furthermore,

Legault's attorneys made several clerical errors in calculating

their reguested time for their work towards settlement. In an

entry for day 686 of the litigation, they reguest 14.0 hours when

only 1.4 hours are recorded, and in an entry for day 708, they

reguest 8.0 hours when only .8 hours are recorded. Therefore, I

subtract thirty hours from the 188.1 hours reguested by Legault's

attorneys, and award a total of 158.1 hours, totalling $27,667.50

for their work towards settlement.

7. Fee Petition

The approximately fifty hours Legault's attorneys spent

preparing the fee petition and fee summary is excessive.

Legault's attorneys could have saved considerable time and

expense by submitting a copy of their contemporaneously generated

computer billing records rather than the summary they submitted.

Thus, much of the time they spent preparing the fee summary was

wasted. Furthermore, preparation of the fee petition did not

13 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.

8. Miscellaneous charges

I was unable to categorize a portion of the fees requested,

although the entries recorded by Legault's attorneys were

specific and reasonable. These included, inter alia, charges

related to conferring with Legault, factual investigation, and

preparation for trial. Defendants have made no specific

objections to any charges, including those counted here.

Therefore, I find that a request of 159.1 hours for a wide

variety of miscellaneous work necessary to the litigation is not

unreasonable, and I make no reduction.

9. Travel Time at $87.50 per hour

Legault seeks compensation for 103 hours of travel time at

the reduced rate of $87.50 per hour. I find that it was

unnecessary for both Spaloss and Schiff to be present at most of

the depositions and hearings. In addition, neither lawyer should

14 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.

15 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.

IV. APPOINTMENT

A. Fees Subject to the Sanctions Order

Although I directed Legault to identify the fees she

incurred as a result of the misconduct identified in the

sanctions order, she has failed to do so. Nor has the Town of

16 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.

17 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)

March 29, 1996

cc: Ina P. Schiff, Esg. Henry F. Spaloss, Esg. Thomas A. DiLuglio, Esg. Jeffrey S. Michaelson, Esg. Sanford Gorodetsky, Esg. Milan Azar, Esg. Raymond Burghardt, USDC-RI