Whitcomb v. Dartmouth CV-92-503-B 05/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Catherine R. Whitcomb
v. C .A . No. 92-503-B
Trustees of Dartmouth College
O R D E R
Catherine Whitcomb was awarded $60,000 after obtaining
favorable jury verdicts against Dartmouth College on her Title
VII retaliation claim and an overlapping state law wrongful
discharge claim. She now seeks to recover an additional
$93,652.50 in attorney's fees and $3,905.74 in costs as a
prevailing party in that litigation.
DISCUSSION
As the prevailing party, Whitcomb is entitled to recover
reasonable attorneys' fees and costs associated with the
successful prosecution of her Title VII claim. 42 U.S.C.A. §
2000e-5(k). The beginning point in calculating a fee award is t
determine the "lodestar" amount--the reasonable number of hours
spent working on the case multiplied by a reasonable hourly rate
Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 6 (1st Cir. 1993). The reasonableness of both the requested hours and
the hourly billing rate are subject to careful scrutiny by the
court. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st
Cir. 1984). The number of hours and the billing rate may be
adjusted in the discretion of the court to reflect a more
reasonable approximation of time spent or the market rate for
attorneys of like experience. Deary v. City of Gloucester, 9
F.3d 191, 197-98 (1st Cir. 1993). Once the lodestar amount is
calculated, it is presumed to be a reasonable fee, although the
court may further adjust the amount to reflect particular
circumstances such as the degree of success of the prevailing
party. Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992);
Pearson v. Fair, 980 F.2d 37, 46 (1st Cir. 1992). The party
seeking an award, the plaintiff here, bears the burden of
documenting the appropriate number of hours and billing rates.
Phetosomphone, 984 F.2d at 6.
In the present case, Dartmouth does not dispute Whitcomb's
right to recover attorneys' fees, nor does it challenge the
billing rates charged by Whitcomb's attorneys.1 However, it
1 Whitcomb was represented by the law firm of Clauson & Smith of Hanover, New Hampshire. Attorneys, K. William Clauson, Bradford T. Atwood, and Kathleen London, and paralegals, Roberta
2 argues that certain items in her request should be disallowed and
that the adjusted fee request should be reduced by an additional
fifty (50) percent. Iaddress these contentions in turn.
A. Reasonableness ofHours Claimed
Dartmouth objects to Whitcomb's application for attorneys'
fees on the groundsthat some of the fees for particular work
either are not recoverable or were not reasonable. In
particular, Dartmouth objects to fees for the following
activities: (1) time spent preparing billing records and the fee
application; (2) legal work for plaintiff that was unrelated to
the litigation; (3) time spent on an unsuccessful effort to
present expert witnesses and to obtain late discovery; (4) time
spent pursuing legally unavailable remedies; and (5) unnecessary
time spent by an investigator.
1. Time spent preparing bills and the fee application.
Dartmouth initially argued that Whitcomb was not entitled to
any fees incurred by her attorneys in preparing the fee
DeMasellis, Carol Sloboda, and Jonathan E. Putnam, spent time on Whitcomb's case. I find that their claimed billing rates are generally reasonable. In some instances, however, I find that the work described did not warrant a full fee, as is more fully explained in the next section.
3 application. In response, Whitcomb pointed to authority allowing
a prevailing party to recover such fees but candidly acknowledged
that time spent in preparing a fee application "may fairly be
compensated at a reduced rate." Brewster v. Dukakis, 3 F.3d 488,
494 (1st Cir. 1993). She then submitted a supplemental
application for attorneys' fees incurred since October 11, 1994.
Dartmouth objected to the supplemental application on the
additional ground that it sought 16.5 hours in compensation for
work performed in overcoming defendant's argument that the fee
application should be denied because it was filed after the time
allowed by the Federal Rules of Civil Procedure.
a. Time spent preparing fee application.
Whitcomb is entitled to recover attorneys' fees for time
spent on fee-related work. Brewster, 3 F.3d at 494. When the
work involved is merely documenting who did what work, however,
compensation may be awarded at a reduced rate. Id. After a
careful review of the time records, I determine that the
following entries involved work by an attorney to document
billing information that I will compensate at a reduced rate:
(1) 10/05/94, Bradford Atwood, "Review timesheets and expense
invoices, preparation of Bill of Costs;" (2) 10/06/94, Bradford
Atwood, "Preparation of Attorney Fee Application"; (3) 10/07/94,
4 Bradford Atwood, "Preparation of Application for Attorney Fees
and Supporting Documentation; preparation of Bill of Costs."2
In the first entry, 10/05/94, Atwood also spent time doing
legal research related to the fee application. The 10/05/94
entry charges for 3.50 hours billed at $90.00 per hour. Although
Whitcomb would be entitled to the full hourly rate for the legal
research component of the entry, she has not specified how much
of the 3.50 hours was devoted to legal research. Similarly, the
second entry, 10/06/94, indicates that Atwood spent part of the
time in a telephone call concerning the case. However, he did
not identify the portion of the entry that was attributable to
the telephone call. Conseguently, I reduce the applicable
billing rate for the entire time allocated to each of those
entries. See, e.g., Tennessee Gas Pipeline Co. v. 104 Acres of
Land, 32 F.3d 632, 634 (1st Cir. 1994); Domegan v. Ponte, 972
F.2d 401, 425 (1st Cir. 1992) (vacated on other grounds and
remanded, 113 S.Ct. 1378 (1993)); Phetosomphone, 984 F.2d at 6;
Woitkowski v. Cade, 725 F.2d 127, 130 (1st Cir. 1984) .
2 Of the remaining entries, two were for paralegal time spent in preparing bills and one, preparation of Catherine Whitcomb's affidavit on 7/21/94, was not apparently related to the preparation of the fee application. I find those entries were properly included in the fee application.
5 I find that a reasonable rate for documenting work to review
time and billing records is $45.00 per hour as charged by the
paralegal in preparing the final bill. Therefore, the allowable
amount for the 10/05/94 entry is $157.50; for the 10/06/94 entry
is $101.25; and for the 10/07/94 entry is $123.75. The reduction
in the billing rate for those three entries reguires that the
total amount of reguested fees be reduced by $382.50.
b. Time spent preventing dismissal of application.
Dartmouth also challenges a portion of the time claimed by
Whitcomb in her supplemental fee application on the grounds that
the time spent preventing dismissal of the initial application
was due to the attorneys' untimely filing. Disallowance of
unnecessary fees is within the discretion of the court. See
Grendel's Den, 749 F.2d at 950. I agree that fees charged by the
attorneys to save the fee application would not have been
necessary had Whitcomb's attorneys complied with the time
limitation specified in the applicable rule. After reviewing the
billing entries in the supplemental application, I find that the
entries beginning with the first entry for 10/20/94, "Review
Dartmouth's Objection to Attorney Fees Application," through the
entry for 11/27/94, "Filing work on Attorneys fees. Supplemental
6 Memorandum and Enlargement of Time," are related at least in part
to defending the untimeliness of the application and therefore
the total of those entries, $1427.50, is denied and is deducted
from the total reguest.
2. Legal work unrelated to litigation.
Dartmouth argues that time Whitcomb's attorneys spent
demanding payment from plaintiff, helping her obtain unemployment
compensation, and inguiring about her insurance records are not
compensable as attorneys' fees in this case. Whitcomb agrees
that the time listed for demands for payment totalling $135.00
should be disallowed. She contends, however, that the work
related to unemployment benefits and insurance was part of the
litigation.
I agree with both parties that the time billed for demands
for payment should be disallowed. I also agree with Dartmouth
that the time spent by the attorneys discussing and researching
plaintiff's eligibility for unemployment compensation benefits,
entries for 05/08/92 and 06/09/92, were not necessary to the
litigation even though the need for benefits may have been the
result of Whitcomb's employment dispute with Dartmouth. I find
that the attorney's telephone discussion with Whitcomb on
11/22/93, however, was occasioned by Dartmouth's reguest for
7 insurance information, as Whitcomb explains. Therefore, the
entry for $22.50 is related to the litigation and is properly
part of the award. A total of $450.00 is denied as work
unrelated to the litigation.
3. Fees relating to plaintiff's efforts to present an expert witness and to obtain late discovery.
Both parties agree that fees billed for work to find and
present expert witnesses and to obtain further discovery after
the applicable deadlines should not be included in the award.
They differ as to which fees fall within the excluded categories.
Whitcomb no longer reguests fees for certain entries related to
expert witnesses, totalling $248.75, and other entries for work
on discovery, totalling $855.00, and those amounts are deducted
from the total reguest. I consider the parties' remaining
arguments as to fees pertaining to the expert witnesses and late
discovery as follows.
a. Expert witnesses.
Whitcomb engaged in an unsuccessful effort to present
various expert witnesses after the extended deadline for
disclosing experts had passed. Dartmouth lists billing entries
totalling $5,925.00 of fees for time it alleges was spent on the
untimely effort to procure expert testimony. In response. Whitcomb notes that two listed entries involved work with
Dartmouth's Affirmative Action Officer, not Whitcomb's expert,
and to obtain information requested by Dartmouth. I agree that
the entries for 09/22/93 and 10/07/93, which involved Dr. Alvin
Richard, should be allowed. I also agree that the fee entered on
11/12/93 regarding obtaining information for both an expert and
Dartmouth's counsel should be allowed.
The remaining entries contested by Dartmouth involve work
with Judith Schultz, an expert on educational employment issues.
Whitcomb argues that most of the time spent with Schultz, who was
belatedly and unsuccessfully offered as an expert by Whitcomb,
was used to develop the damages aspect of her case. A review of
the billing records shows that many of the entries involving
Schultz explicitly involved discovery and designated Schultz as
an expert witness. Although it is likely that at least some of
the entries involving work with Schultz were necessary to the
litigation, Whitcomb has neither pointed to designations in the
billing entries themselves nor provided additional explanations
for specific entries to separate the time used to develop Schultz
as a witness from the time spent developing damages information.
Instead, Whitcomb urges me to either allow the entries in whole
because of Schultz's significant contribution to the case or to only partially discount the mixed entries. Whitcomb, however,
bears the burden of presenting and documenting the hours
appropriately spent on the litigation and undesignated mixed
entries may be denied in whole. See Tennessee Gas Pipeline, 32
F.3d at 634; Phetosomphone, 984 F.2d at 6; Woi tkowski, 72 5 F .2d
at 130. A review of the billing records reveals an entry on
05/16/94 involving Schultz that is devoted exclusively to
damages, and that amount, $127.50, is allowable. For the
remainder of the entries related to work with Schultz, I decline
to engage in speculation concerning what part of the billing
records might be allowable, and I deny all of the contested
entries less the three discussed above. As a result, the amount
listed by Dartmouth as work related to developing Schultz as an
expert witness less the allowable entries which eguals $5,510.00
will be deducted from the allowable fees,
b. Late discovery.
Whitcomb argues that four entries included in Dartmouth's
list should be allowed because they include time for answering
Dartmouth's discovery reguests. Whitcomb suggests that the entry
listed by Dartmouth for 05/15/93 should be the entry for 5/13/93
indicating a fee of $255.00, which reflects work performed in
complying with Dartmouth's discovery reguests. I accept
10 Whitcomb's explanation and allow this charge. The remaining
three entries, however, involve work on a variety of matters.
Once again, if the time spent on Dartmouth's discovery were
separated from the time spent on unproductive late discovery
attempts, I would award fees for that work. Because the work is
included in an undifferentiated entry, the fee is not allowable.
The amount to be deducted for work on late discovery is
$1,510.00.
4. Time spent pursuing legally unavailable remedies.
Dartmouth's challenge to the time spent on filing Whitcomb's
claim with the New Hampshire Human Rights Commission is denied.
5. Unnecessary time used by the paralegal/investigator.
Dartmouth argues that the time billed by John Putnam, a
paralegal and investigator for Clauson & Smith, is excessive and
unnecessary. Instead of challenging particular entries,
Dartmouth cites a few examples of contested entries and asks that
I impose a one-third reduction in Putnam's fees. Whitcomb
responds that Putnam's time for finding and interviewing
potential witnesses billed at $35.00 per hour was both essential
to the litigation and a great savings in fees.
After reviewing Putnam's billing entries, I find that some
of his time may be excessive, as Dartmouth contends. For
11 instance, I agree with Dartmouth that Putnam's time spent driving
from Hanover to the Manchester Airport to Concord and back to
pickup and return a witness, without further explanation of
discussion of the case during the ride, was unnecessary to the
litigation. Although the entry also includes a notation of a
meeting with one of the attorneys during the day, no time is
specified for that meeting. I deduct the charges for that day,
$315.00, from the total fees. As to the remaining charges,
however, the notations show that he was engaged in locating and
interviewing witnesses, writing reports, and reviewing witness
information in preparation for trial. Although Putnam spent a
great deal of time on this investigation, such work, even with
respect to witnesses who were not called at trial, was necessary
to prepare the case for trial and would otherwise have been done
by other paralegals or an attorney, all of whom billed at higher
rates. For that reason, I will allow the remainder of Putnam's
billing entries, deducting the $315.00 as previously noted.
6. The lodestar amount.
Having carefully reviewed the billing entries and considered
Dartmouth's challenges, I find that after deducting necessary
amounts explained above, the reasonable hours spent on the
litigation multiplied by the reasonable hourly rates, as
12 calculated by the parties, provides a lodestar amount of
$84,057.50.
B. Requested Fifty Percent Reduction
Dartmouth argues that the total amount of attorneys' fees
should be cut in half due to Whitcomb's relative lack of success
in the litigation, her disproportionately small recovery and her
failure to engage in meaningful settlement negotiations. I
resolve these claims as follows.
1. Degree of success.
Dartmouth notes that Whitcomb began the litigation with
four causes of action, but prevailed on only two. As a result,
Dartmouth argues, Whitcomb's attorneys spent significant amounts
of time pursuing claims on which Dartmouth ultimately prevailed.
For that reason, Dartmouth asks that the attorneys' fees be
substantially reduced.
A reduced award of attorneys' fees may be appropriate if the
plaintiff's victory is limited in comparison to the scope of the
litigation as a whole.3 Lewis v. Kendrick, 944 F.2d 949, 956
3 It may also be necessary in certain circumstances to discount an attorney's fee award under federal law for time spent in proving a successful state law claim for which there is no right to attorneys' fees. See Phetosomphone, 984 F.2d at 7.
13 (1st Cir. 1991) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434
(1983) (on rehearing). The extent of success, however, is
measured by taking a qualitative, not quantitative, view of
plaintiff's claims and result. Aubin v. Fudala, 782 F.2d 287,
290 (1st Cir. 1986). In this case, Whitcomb obtained favorable
jury verdicts on her Title VII claim for retaliation and her
state law wrongful discharge claim. Her state claim for
intentional infliction of emotional distress was dismissed before
trial and the jury found in Dartmouth's favor on Whitcomb's Title
VII discriminatory demotion claim. Nevertheless, the claims on
which Whitcomb was successful were the core of her case. In
addition, her claims were sufficiently interrelated that it is
unlikely that her attorneys spent any significant time on the
unsuccessful claims that was not necessary for the prosecution of
the successful ones. C f . Pearson, 980 F.2d at 47 (holding that
award should be reduced where plaintiff's counsel spent a
substantial number of hours on factual discovery and legal
Although in this case Whitcomb prevailed on both her Title VII retaliation claim and her state law wrongful discharge claim, it is unnecessary to attempt to separate the time spent solely on the wrongful discharge claim from the time spent on the Title VII claim because the claims overlap and Dartmouth does not argue that the fee award should be reduced for this reason. Compare Refuse & Envtl. Svs., Inc. v. Industrial Serv. of Am., Inc., 932 F .2d 37, 44-55 (1st Cir. 1991).
14 research devoted to losing issues).
Thus, I find no reason to reduce Whitcomb's award to reflect
a lack of success on the merits of her claims.
2. Proportionality.
Dartmouth also argues that Whitcomb's fee award should be
reduced substantially because she recovered only $60,000 in
damages. In evaluating Dartmouth's argument, I am mindful that
"[w]hile the amount of damages received in a civil rights suit
does not constitute a dispositive criterion, or even a ceiling on
an ensuing fee award, it is nevertheless relevant to the
calculation of a reasonable fee." Foley v. City of Lowell, 948
F.2d 10, 19 (1st Cir. 1991) (citations omitted); see also, City
of Riverside v. Rivera, 477 U.S. 561, 574 (1986) (plurality op.).
In the present case, however, I cannot say that the plaintiff
built a litigious mountain out of a legal molehill. Instead,
Whitcomb received a substantial damage award for a serious
violation of federal law. Compare Farrar v. Hobby, 113 S.Ct.
567, 578-79 (1992). Nor can I say that her lawyers expended an
unjustifiably large amount of time in prosecuting her claim.
Thus, I decline to exercise my discretion to reduce her fee award
simply because it exceeds the amount of her damage award.
15 3. Settlement efforts.
Each party accuses the other of intransigence in settlement.
Dartmouth argues that Whitcomb's million-dollar demand reguires
cutting Whitcomb's fee award in half, and Whitcomb responds that
Dartmouth's "Stalingrad defense," including its small settlement
offer, increased the time spent by Whitcomb's attorneys. Because
Whitcomb achieved a jury verdict and damage award substantially
in excess of Dartmouth's settlement offer, I find no cause to
reduce the award of attorneys' fees based on the parties'
unsuccessful settlement negotiations.
In summary, I find that the hourly billing rates and the
time billed in Whitcomb's application for attorneys' fees, as
modified in this Order, are reasonable.
C. Costs and Expenses
Whitcomb reguests a total of $3,905.74 in costs and expenses
related to the litigation. After reviewing the items listed, I
find that the reguest is reasonable and falls within the
statutory guidelines of 28 U.S.C.A. § 1920. See West Virginia
University Hosps. v. Casey, 499 U.S. 83, 103 (1991) (Stevens, J.
dissenting and explaining the broad view given to costs in
context of fee-shifting). Further, although Dartmouth reguests,
16 without explanation, that each party bear its own costs, it has
not contested either the amount or the subject matter of the
costs requested. Because costs are to be awarded to the
prevailing party as a matter of course. Federal Rule of Civil
Procedure 5 4 (d), I grant costs as requested.
CONCLUSION
For the foregoing reasons Whitcomb's application for
attorneys' fees (document 77) and the supplemental application
(document 78) are granted in part and denied in part. Whitcomb
is entitled to an award of attorneys' fees in the amount
requested less the deductions made in this Order, yielding a
total amount of $84,057.50 in attorneys' fees. In addition,
Whitcomb is awarded $3,905.74 in costs.
SO ORDERED.
Paul Barbadoro United States District Judge
May 4, 1995
cc: Bradford Atwood, Esq. Edward Shumaker, III, Esq.