Smith v. City of Boston

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) BRUCE SMITH, PAUL JOSEPH, JOHN M. ) JOHNSON, ROBERT TINKER, MARTIN ) JOSEPH, KIM GADDY, BRIAN KEITH ) LATSON, LEIGHTON FACEY, KENNETH ) SOUSA, WILLIAM WOODLEY, MARWAN ) MOSS, and LATEISHA ADAMS, ) ) Plaintiffs, ) ) CIVIL ACTION v. ) NO. 12-10291-WGY ) CITY OF BOSTON, ) ) Defendant. ) )

YOUNG, D.J. October 26, 2020 MEMORANDUM & ORDER I. INTRODUCTION This is a disparate impact civil rights case. After lengthy, complex, and extensive proceedings before the district court and First Circuit, this Court ruled in favor of the police-officer plaintiffs (the “Officers”) against the City of Boston (“Boston”) on their Title VII disparate impact claim arising from the 2008 lieutenants’ promotional exam, and awarded them damages in the form of back pay and interest totaling $484,865. ECF No. 308; see also Smith v. City of Boston (Smith I), 144 F. Supp. 3d 177 (D. Mass. 2015); Smith v. City of Boston (Smith II), 267 F. Supp. 3d 325 (D. Mass. 2017). Pursuant to Title VII of the Civil Rights Act and Chapter 151B of Massachusetts General laws, the Officers requested the award of attorney’s fees in the amount of $1,689,985 and costs in the amount of $665,359, for a total request of $2,355,344.1 Pls.’

Pet. Att’ys Fees & Costs (“Pls.’ Pet.”) 1, 5, 26, ECF No. 309. The Court here rules that the Officers are entitled to attorneys’ fees in the amount of $607,272.80, and costs in the amount of $346,372.00. A. Procedural History This case commenced in February 2012. ECF No. 1. The parties litigated the partial dismissal of the complaint, the issue of certificating a class, as well the cross-motions for summary judgement. ECF Nos. 28, 67, 70, 89, 94, 120, 255, 264. The Court bifurcated the case into liability and damages phases. ECF No. 98. From a trial that lasted nine days, ECF Nos. 146-57, this Court ruled in 2015 in Smith I that Boston’s 2008 lieutenants’

1 The Officers calculate this total as $2,354,525, but this Court had conducted its own independent calculations, which include using a figure for costs incurred of $663,153. Pl.’s Mot. 4-5. The Officers’ attorneys in their Reply additionally subtracted 6.2 hours from their original request, as this was work done by attorneys other than the four staffed to this case. Pls.’ Pet. 26; Reply Supp. Pls.’ Pet. Att’ys Fees (“Pls.’ Reply”) 9, ECF No. 321. This Court is not awarding the Officers’ requested fee, so calculating the effect of these modifications would be merely academic. exam had a disparate impact on minority candidates and lacked job-relatedness, in violation of Title VII of the Civil Rights Act and its Massachusetts analogue, Chapter 151B. ECF No. 199. Soon after, the First Circuit in Lopez v. City of Lawrence, affirmed Judge O’Toole’s rejection of a similar claim by

plaintiffs challenging Boston’s 2008 sergeants’ promotional exam. 823 F.3d 102 (1st Cir. 2016), cert. denied, 137 S. Ct. 1088 (2017). The First Circuit then declined to review Boston’s interlocutory appeal in the present case, suggesting this Court analyze the Officers’ claims in light of the Lopez decision. Smith II, 267 F. Supp. 3d at 328 (quoting ECF No. 229); see also ECF Nos. 225, 235, 236, 241, 242, 245, 247, 250. This Court did so and reaffirmed its Smith I decision on July 26, 2017. ECF No. 245. Afterwards, this Court held a three-day trial in order to determine the damages suffered by the Officers as a consequence of being delayed or denied promotions based on the

discriminatory exam. ECF Nos. 296-98. This Court entered judgement granting back pay and interest to the Officers. ECF Nos. 306, 308. The Officers, thereafter, filed their motion for attorneys’ fees and costs, that the parties have fully briefed. Pls.’ Pet.; Opp’n Pls.’ Pet. Att’ys Fees & Costs (“Def.’s Opp’n”), ECF No. 317. B. Lodestar Method for Calculating Attorney’s Fees Courts in the First Circuit follow the lodestar method to calculate reasonable attorneys’ fees and award them to prevailing parties in litigation. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994). According to this method, the court multiples “the number of hours

productively spent by a reasonable hourly rate to calculate a base figure.” Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Officers bear the burden to demonstrate that the requested number of hours expended by the attorneys are reasonable, and the court must exclude those hours that are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Afterwards, the Court must determine the hourly fee which must equate to the “prevailing rates in the community” for lawyers of like “qualifications, experience, and specialized competence.” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001).

II. ANALYSIS The parties do not dispute that the Officers prevailed in this litigation. Pursuant to Title VII of the Civil Rights Act and Massachusetts General Laws Chapter 151B, the Court in its discretion awards “reasonable attorney’s fee (including expert fees)” and reasonable costs to the prevailing party. 42 U.S.C. § 2000e-5(k); Mass. Gen. Laws. ch. 151B, § 9; Fontanillas-Lopez v. Morell Bauza Cartagena & Dapena, LLC, 832 F.3d 50, 59 (1st Cir. 2016). Boston is requesting a significant reduction of the Officers’ claim for attorneys’ fees and costs. Def.’s Opp’n 1.

In particular, Boston asserts that the Officers are not entitled to any fees and costs associated with the litigation of the Lopez case, id. at 4, that fees should be reduced for unsuccessfully litigated issues such as the 2005 exam and the class action certification attempts, id. at 8-12, and that the Officers did not cause Boston to decide to move away from the multiple choice exam in 2014, id. at 13. Additionally, Boston asserts that the Officers’ attorneys engaged in improper block billing or billing with vague, generic entries that are not decipherable, id. at 15-17, failed to provide contemporaneous records, id. at 17-18, overstaffed the damages trial, id. at 19- 20, and that the rates charged do not reflect the prevalent

attorneys’ fees for the different points in time of a lengthy matter that began back in 2012, id. at 21-22. The Officers’ attorneys assert that the Lopez litigation was a necessary predicate for this litigation and that all hours and fees are reasonable and supported by the record. See generally Pls.’ Reply. A. Fees and Costs Associated with the Lopez Litigation The Officers requested an award of fees and costs from the Lopez case totaling $977,951. Pls.’ Pet. 5. Their reasoning is that “the entire transcript and exhibits were introduced by agreement of both parties . . . and both parties and the court relied on much of that trial record in this case.” Id. at 4-5.

Title VII of the Civil Rights Act and Chapter 151B of Massachusetts General Laws authorize recovery of attorney’s fees and costs only to the prevailing party. McDonough v. City of Quincy, 353 F. Supp. 2d 179, 183 (D. Mass. 2005). There is no doubt that Lopez rejected a similar claim challenging Boston’s 2008 sergeants’ promotional exam, so the defendants -- not the plaintiffs -- were the prevailing parties.2 Lopez, 823 F.3d at 122 (affirming “the district court’s order finding that the

2 Boston also asserts that it is improper to recover any money from the litigation in Lopez, since such proceedings were not necessary to the outcome of this case. Def.’s Opp’n 8. Boston’s argument is meritorious. Any reliance of this Court on the Lopez record was not “necessary to advance the civil rights litigation.” Webb v. County Bd. of Educ., 471 U.S. 234, 243 (1985). Only fees incurred in ancillary proceedings “necessary” to a related action are recoverable. Bogan v. City of Boston, 489 F.3d 417, 427 (1st Cir. 2007). Although the Officers attempted to identify those portions from the Lopez record to which this Court referred in its order, such attempt shows merely that the Lopez record -- in the words of the Officers -- “helped form the basis of this Court’s rulings in Plaintiff’s favor,” Pls.’ Pet. 22, but this was because there was “some factual overlap” between the two cases, Smith I, 144 F. Supp. at 185, not because such information was necessary to this Court’s determinations. exams Boston used in 2005 and 2008 did not violate Title VII” and also affirming “the entry of judgment in favor of all defendants.”). This Court shares the Sixth Circuit’s concern about the “idea of ever permitting plaintiffs’ counsel to receive fees for work performed in a completely separate case.

Doing so could lead to all sorts of oddities, as illustrated by this case where counsel would be permitted to recover fees for thousands of hours of time spent litigating a case they lost.” Binta B. v. Gordon, 710 F.3d 608, 631 (6th Cir. 2013) (emphasis in original). All attorney’s fees and costs associated with the Lopez litigation are, therefore, disallowed. B. Lodestar Approach The Officers consider the 1,880.9 hours spent in litigating two trials (liability and damages stages) and a remand from the First Circuit (to consider its decision in the Lopez case) to be reasonable. Pls.’ Pet. 8. It is without doubt that this case was properly and vigorously litigated by the parties, but this

Court must adjust the requested number of hours to account for limited success in certain claims, as well as for the improper billing methods. Hensley, 461 U.S. at 434. 1. Reduction for Limited Success The courts may discount for work performed in service of unsuccessful plaintiffs or claims when they diverged from the successful core facts and theory. Cf. System Mgmt., Inc. v. Loiselle, 154 F. Supp. 2d 195, 209-10 (D. Mass. 2001); Dixon v. International Bhd. of Police Officers, 434 F. Supp. 2d 73, 83-84 (D. Mass. 2006). The complaint challenging the 2005 and 2008 lieutenants’

exams included Joseph Tinker and John Johnson among the plaintiffs. Compl. ¶¶ 1, 5-6, 13, 19, ECF No. 1. The Officers did not prevail on their claims. ECF No. 28. This Court, therefore, reduces by 20% the time logged by each attorney up until July 24, 2013. Id. Likewise, this Court reduces the time logged by 20% for unsuccessful claims from that date to December 16, 2014, when this Court ruled that there were no legitimate claims as to the 2005 exam. See ECF No. 150. The Officers also attempted to certify a class on October 18, 2013 which was denied on March 25, 2014; they later renewed their motion to certify the class on May 22, 2019 which was again denied on June 13, 2019. See ECF Nos. 47, 70, 255, 264. This Court reduces,

by 10%, the time logged prior to the first denial (using the July 25, 2013 date as an approximate start), and by 10% between the denial of claims on December 16, 2014 and the second class certification denial.3 Table 1 describes each of these

3 Although the Officers’ attorneys indicate that they only spent 92.9 hours in tasks related to class certification, the manner in which they logged their hours (“call,” “email,” “prepare for hearing”) does not allow this Court completely to reductions. The final total is the sum of the highlighted rows, consisting of the hours logged for each period of time after applying any reductions. Table 1 Attorney Attorney Attorney Attorney Harold Stephen Benjamin Zach Rubin5 Lichten Churchill4 Weber Total Hours 662.96 224.4 780.67 195.7 Logged Time logged up to July 14.8 0 12.7 0 24, 2013 After 20% reduction for 11.84 0 10.16 0 dismissed plaintiffs Time logged between July 25, 2013 and 26.7 7.6 79.2 0 March 25, 2014

discern that no other time was spent on issues related to class certification. See Pls.’ Reply 10 n.10; Pls.’ Pet., Ex. B, Aff. Stephen Churchill (“Churchill Aff.”), ECF No. 309-2. The Court, therefore, applies a 10% global reduction.

4 Aff. Churchill 35-37.

5 Attorney Zach Rubin’s logged hours start on May 24, 2019 and therefore is only affected by the renewed class certification reduction. Pls.’ Pet., Ex. A, Aff. Harold Lichten (“Lichten Aff.”) 12-18, ECF No. 309-2.

6 Lichten Aff. ¶ 17, 17 n. 2.

7 According to the Lichten Affidavit, Attorney Weber logged 716.6 hours from May 2013 until January 2018, then he logged 60.02 from April 2019 to the present. See Lichten Aff. ¶ 7. This Court reexamined the provided numbers and found that he should in fact be credited for 64.02 hours from April 2019 to the present. Id. at 46. After 30% reduction for unsuccessful claim and 18.69 5.32 55.44 0 first denial of class certification Time logged between March 26, 2014 and 129.7 93.2 219.4 0 December 16, 2014 After Remaining 20% reduction for 103.76 74.56 175.52 0 unsuccessful claim Time Logged between December 17, 354.78 96.3 414.24 33.15 2014 and June 13, 2019 After 10% reduction for second failed 319.23 86.67 372.81 29.84 attempt at class certification Time logged 0 27.3 55.08 162.55 from June 14

8 Attorney Lichten logged 388.9 hours from February 6, 2012 until May 28, 2015. Lichton Aff. ¶ 17 n. 2. Lichten “stopped keeping contemporaneous logs of [his] time toward the middle of 2015,” and estimated, therefore, that from May 28, 2015 to the present he spent 274 hours working on this litigation. Id. This Court reduces by 50% that estimated amount of time for lack of contemporaneous billing. Davignon v. Clemmey, 176 F. Supp. 2d 77, 96 (D. Mass. 2001). This hour calculation of 354.7 is, therefore, the sum of the 217.7 documented hours between December 16, 2014 and May 28, 2015, and the 137 hours (half of the estimated 274 hours) for the remainder of the time period. Additionally, as the records do not indicate which hours were worked before and after June 2019, the 10% reduction is applied to all of these hours. 2019 to present Total (total reduced time 453.52 193.85 669.0 192.39 + time logged to the present)

2. Unreasonable Hours The burden of proof regarding the reasonableness of the fees requested relies on the movant party. Hensley, 461 U.S. at 434. The court may reduce the number of hours billed if the hours are inadequately documented. Conservation Law Found., Inc. v. Patrick, 767 F. Supp. 2d 244, 251 (D. Mass. 2011). “[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, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984). When a firm uses a billing method that does not itemize the time expended on specific tasks, instead of deciphering the billed tasks, the court can apply a global reduction of the overall time billed for each attorney. See Conservation Law Found., Inc., 767 F. Supp. 2d at 253; See also Walsh v. Boston Univ., 661 F. Supp. 2d 91, 106 (D. Mass. 2009) (Bowler, M.J.) (“a court ‘may either discount or disallow’ hours where time records are ‘too generic and, thus, insufficient as a practical matter to permit a court to answer questions about excessiveness, redundancy and the like’” (internal quotations omitted)). The attorneys for the Officers logged some entries “without explaining the nature or subject matter of the task,” id., and instead, referred to very generic tasks such as “email to [. .

.],” “work on brief,” “research,” or “call with [. . .].” See generally Lichten Aff. 12-105; Churchill Aff. 35-42. Unlike the Volkswagen & Audi Warranty Extension Litigation decision that the Officers’ attorneys cite, here the block-billing was not infrequent or relatively minor. Pls.’ Reply 13 (citing 89 F. Supp. 3d 155, 176 (D. Mass. 2015)). A more precise description of the topic researched or discussed, or a reference as to what documents were being reviewed would allow a court to determine whether the time spent during the litigation was reasonable. Because the type of time records submitted are “insufficient” to allow this Court to determine whether they are reasonable, this Court will apply a 20% global reduction of the

overall time billed for each attorney. See Walsh, 661 F. Supp. 2d at 106; Conservation Law Found., Inc., 767 F. Supp. 2d at 253. This Court is content that these reductions will also account for any overstaffing of the litigation team at the damages trial. From the already reduced hours, this Court applies a 20% global reduction, as detailed on Table 2 below: Table 2 Attorney Attorney Attorney Attorney Harold Stephen Benjamin Zach Rubin Lichten Churchill Weber Reduced hours (from 453.52 193.85 669.0 192.39 Table 1) After 20% reduction 362.816 155.08 535.2 153.912 for insufficient records

3. Reasonable Fees After determining the number of hours reasonably expended, the following step in calculating the lodestar requires the court to determine a reasonable hourly rate which is “benchmarked to the ‘prevailing rates in the community’ for lawyers of like ‘qualifications, experience, and specialized competence.’” Shea v. Porter, Civ. A. No. 08-12148, 2015 U.S. Dist. LEXIS 141134, at *14 (D. Mass. Oct. 16, 2015) (Saylor, J.) (quoting Gay Officers League, 247 F.3d at 295); Grendel’s Den, 749 F.2d at 955 (“‘Reasonable fees’ under [Section] 1988 are to be calculated according to the prevailing market rates in the relevant community.”). This case developed in Boston, and the Officers’ attorneys presented evidence that allows this Court to find that although the requested fees were not “unduly high” they must be adjusted so that they “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). It is difficult to heavily rely –- as Boston does in its brief, see Def.’s Opp’n 22 -- on what other courts have awarded. Cf. Riley v. Massachusetts Dep’t of State Police, Civ. A. No. 15-14137, 2019 U.S. Dist. LEXIS 174182, at *4 (D. Mass.

Oct. 8, 2019) (Casper, J.). Although such information is illustrative, it does not account for the facts that rates are intrinsically related to the complexities of each case, and the factual support other courts used to reach the awarded fee. Id. This Court has analyzed the precedent and affidavits provided by the parties,9 and finds that the following hourly rate award is reasonable: Table 3 Attorney Attorney Attorney Attorney Harold Stephen Benjamin Zach Rubin Lichten Churchill Weber Initial fee $700 $600 $450 $350 requested Fee $700 $600 $400 $300 awarded10

9 The Officers’ attorneys cite to one non-class action First Circuit decision -- Riley -- which awarded a maximum of $600 per hour for an attorney of similar skills to Lichten and Churchill. Pls.’ Pet. 15.

10 See Rhode Island Med. Soc’y v. Whitehouse, 323 F. Supp. 2d 283, 292 (D.R.I. 2004) (“In ascertaining the rates to be awarded, the district court need not rely on information supplied by the parties, and remains free to utilize its own knowledge of attorneys’ fees in the relevant area.”) This Court rules that Boston’s argument regarding differentiated fee from work done before 2016 is meritless. See Def.’s Opp’n 22. [C]ompensation received several years after the services were rendered -- as it frequently is in complex civil rights litigation -- is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment -- whether by the application of current rather than historic hourly rates or otherwise -- is within the contemplation of the statute. Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989). Awarding the current rate will account for inflation and the Officers attorneys’ entitlement to their fees contingent on their success. Ferraro v. Kelley, Civ. A. No. 08-11065, 2011 U.S. Dist. LEXIS 81443, at *19 (D. Mass. Feb. 8, 2011) (Woodlock, J.) (recognizing that billing rates increase as time passes as a result of inflation and individual experience) Per the above determinations, the Officers’ attorneys are entitled to recover attorneys’ fees in the amount of $607,272.80. Table 4 below details this finding per attorney: Table 4 Attorney Attorney Attorney Attorney Harold Stephen Benjamin Zach Rubin Lichten Churchill Weber Recognized 362.816 155.08 535.2 153.912 Hours Hourly Fee $700 $600 $400 $300 Award Total $253,971.20 $93,048.00 $214,080 $46,173.60 C. Costs Expenses that attorneys customarily bill to their clients are recoverable by a successful civil rights plaintiff. See Fed. R. Civ. P. 54(d)(1); Poy v. Boutselis, 352 F.3d 479, 490 (1st Cir. 2003); Wilcox v. Stratton Lumber, 921 F. Supp. 837,

850 (D. Me. 1996) (noting that costs are “out-of-pocket expenses of the type an attorney would normally pass on to a client.”). These expenses include litigation costs (court costs, deposition fees, copying), as well as expert witnesses fees. 42 U.S.C. § 2000e-5(k). The requirement of detailed tasks performed, dates and number of hours spent on each task applies, as well, to expert witnesses. Id. In determining what expenses should be awarded, a court must apply a test of reasonableness and necessity. It is well-established in awarding fees in a civil rights case that certain out-of-pocket costs incurred by the plaintiffs’ attorneys, including transportation, lodging, parking, food and telephone expenses can be reimbursed as reasonable and necessary costs and expenses. Rhode Island Med. Soc’y, 323 F. Supp. 2d at 317 (internal quotation marks removed) (quoting In re Boston & Maine Corp. v. Moore, 776 F.2d 2, 11 (1st Cir. 1985)). As explained above, this Court does not award the requested costs of $316,781 in expert fees related to the Lopez litigation. See supra II.C. Boston does not dispute the requested $346,372 in costs related to this litigation, and this Court finds these costs to be reasonable and well supported by the record. III. CONCLUSION Attorneys’ fees and costs, ECF No. 309, are GRANTED in the

amount of $953,644.80 as detailed herein.

SO ORDERED. /s/ William G. Young WILLIAM G. YOUNG DISTRICT JUDGE