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Rand v. Town of Exeter

United States District Court, D. New Hampshire

September 30, 2014

Brenda L. Rand
Town of Exeter, New Hampshire; and George McAllister. Opinion No. 2014 DNH 206


LANDYA McCAFFERTY, District Judge.

Brenda Rand won jury verdicts against the Town of Exeter ("Town") and George McAllister. Before the court is Rand's petition for attorney's fees and costs from the Town, along with a supplemental motion for the attorney's fees generated since she filed her petition. The Town objects to both Rand's petition and her motion. For the reasons that follow, Rand's petition is granted in part.


Rand initially sued the Town and George McAllister in six counts, asserting claims arising from an incident in which she was assaulted by Town employee McAllister while she was working for the Town. Thereafter, she sued those two defendants, plus four more (Jay Perkins, Jennifer Perry, Donna Cisewski, and Russell Dean), also asserting claims arising from the McAllister assault. Those two cases were consolidated, and Rand filed a seven-count amended complaint in the consolidated case in which she asserted: (1) a Title VII sex-discrimination claim against the Town, Perkins, Perry, Cisewski, and Dean for hostile-work-environment sexual harassment and retaliation; (2) a state-law sex-discrimination claim against the same five defendants under the same two theories; (3) a state-law claim for assault and battery against McAllister; (4) a state-law claim for intentional infliction of emotional distress against all six defendants; (5) a state-law claim for wrongful termination against the Town; (6) a state-law claim for defamation against the Town, Perkins, Perry, Cisewski, and Dean; and (7) a state-law claim for intentional interference with contractual relations against Perkins, Perry, Cisewski, and Dean. By order dated October 2, 2013, Judge Barbadoro granted defendants' motion for summary judgment as to all claims other than: (1) Rand's retaliation claims against the Town; (2) her claims for assault and intentional infliction of emotional distress against McAllister; and (3) her claim against the Town for wrongful termination. At trial, Rand prevailed on all of those claims, and was awarded $49, 000 in damages against the Town and $20, 000 in damages against McAllister.


The parties agree that Rand is entitled to some amount of attorney's fees, pursuant to 42 U.S.C. ยง 2000e-5(k). They further agree that the court should use the "lodestar" approach to calculate the amount of the award.

In fashioning the lodestar, the first step is to calculate the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are "excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart , 461 U.S. 424, 434 (1983). The second step entails a determination of a reasonable hourly rate or rates - a determination that is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. See [Gay Officers Action League v. Puerto Rico], 247 F.3d [288, ] 295 [(1st Cir. 2001)]. The product of the hours reasonably worked times the reasonable hourly rate(s) comprises the lodestar.

Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating Emp'rs v. Ray Haluch Gravel Co. , 745 F.3d 1, 5 (1st Cir. 2014) (parallel citations omitted). The parties also agree that $200 per hour is a reasonable rate for the services provided by Rand's attorney. The sole area of disagreement concerns the number of hours that Rand's attorney reasonably expended in this case.

In her petition, Rand asks the court to award her $144, 720 in attorney's fees (based upon 723.6 hours of work) and $6, 749.50 in costs. In her supplemental motion, she seeks an additional $7, 240 in attorney's fees. In response, the Town: (1) argues that the fees Rand seeks for some of her attorney's services are excessive; (2) contends that Rand seeks fees for some services that are uncompensable because those services were for the litigation of claims that are unrelated to the Title VII claim on which she prevailed; (3) takes issue with some of the costs Rand claims; and (4) objects to her supplemental motion for fees as being untimely and as claiming excessive fees. If the court were to apply all of the exclusions and reductions that the Town proposes, Rand would receive an award for fees and costs in the neighborhood of $50, 000. The amount to which Rand is entitled lies in between the amount she seeks and the amount to which the Town says she is entitled. The court begins its analysis by sketching the law that governs the amount of time reasonably expended by an attorney and then turns to each of the four grounds on which the Town relies for reducing the amount that Rand may recover for attorney's fees and costs.

A. The Relevant Law

"The prevailing party has the burden of proving the reasonableness of the hours claimed, " Torres-Rivera v. O'Neill-Cancel , 524 F.3d 331, 340 (1st Cir. 2008) (citation omitted), and "the failure of a fee-seeker to submit reasonably explicit time records may have deleterious consequences on the amount of fees awarded, " Burke v. McDonald , 572 F.3d 51, 63 (1st Cir. 2009) (citation and internal quotations marks omitted). When determining the number of hours reasonably expended, "[t]he district court... should exclude from this initial fee calculation hours that were not reasonably expended." Hensley , 461 U.S. at 434 (citation and internal quotation marks omitted). Thus, "[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Id.

After the lodestar has been calculated, by multiplying a "reasonable [number of] hours [by] a reasonable rate[, ]... [t]here remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the results obtained." Hensley , 461 U.S. at 434 (internal quotation marks and footnote omitted). For example, "[i]n some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories, " Id . In such a situation, "even where the claims are brought against the same defendants... counsel's work on one claim will be unrelated to his work on another claim, [and] work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.'" Id. at 434-35 (quoting Davis v. County of L.A., No. 73-63-WPG , 1974 WL 180, at *3 (C.D. Cal. June 5, 1974). When that happens, "no fee may be awarded for services on the unsuccessful claim." Hensley , 461 U.S. at 435. But in cases where "the plaintiff's claims for relief... involve a common core of facts or [are] based on related legal theories, " id., such that "it [is] difficult to divide the hours expended on a claim-by-claim basis, " id., fees may be awarded for work devoted to claims other than those that expressly provide for an award of fees. See also Diaz v. Jiten Hotel Mgmt., Inc. , 741 F.3d 170, 173 (1st Cir. 2013) (affirming district court's decision to reduce lodestar "by refusing to make [defendant] pay for attorney's fees incurred by [plaintiff] in the pursuit of unsuccessful and largely independent claims"); Burke , 572 F.3d at 63 ("It is well-established that fees are appropriately excluded from the lodestar when different claims for relief are not interconnected, that is, when the claims rest on different facts and legal theories") (quoting Bogan v. City of Bos. , 489 F.3d 417, 428-29 (1st Cir. 2007)) (additional citation, punctuation, and internal quotation marks omitted). Procedurally, "[i]f the fee-seeker properly documents her claim and plausibly asserts that the time cannot be allocated between successful and unsuccessful claims, it becomes the fee-target's burden to show a basis for segregability." Burke , 572 F.3d at 63 (quoting Lipsett [v. Blanco], 975 F.3d [924, ] 941, [(1st Cir. 1992)]) (emphasis omitted).

B. Excessive, Redundant, or Unnecessary Hours

The Town identifies a substantial number of specific legal services for which, in its view, Rand's attorney has overbilled. In response, Rand correctly notes that "[a] request for attorney's fees should not result in a second major litigation, " Hensley , 461 U.S. at 437. Further, she objects to what she calls the Town's "nickel-and-dime approach to her fee petition, " Pl.'s Reply Mem. (doc. no. 68) 1, and its "scattershot objection, " id. However, Hensley also teaches that "[t]he amount of the fee... must be determined on the facts of each case, " 461 U.S. at 429, and points out that "[t]he party seeking an award of fees should submit evidence supporting the hours worked, " id. at 433. Moreover, the First Circuit has explained that "it is the court's prerogative (indeed, its duty) to winnow out excessive hours, time spent tilting at windmills, and the like." Gay Officers, 247 F.3d at 296 (citing Coutin v. Young & Rubicam P.R., Inc. , 124 F.3d 331, 337 (1st Cir. 1997)). Accordingly, the court turns to an item-by-item consideration of those components of the fee request that the Town considers to be excessive, redundant, or unnecessary.

Trial Preparation. Rand seeks fees for 153 hours of trial preparation. The Town seeks a reduction to 51 hours. It argues that: (1) Rand's trial preparation time included tasks that were unnecessary, such as preparing jury instructions and blowing up exhibits that were not used; and (2) the amount of time billed, overall, was excessive and/or unreasonable given the limited number of witnesses and the lack of preparation demonstrated by Rand's attorney's examination of those witnesses. Rand does not address this objection in her reply.

The time Rand's attorney spent on jury instructions was not unnecessary, but it was excessive. The fact that the court ultimately drafts the instructions it gives a jury does not mean that counsel should refrain from submitting proposed instructions. Moreover, Rand's attorney's request for jury instructions generally complied with LR 16.2(b)(1). But, given the relatively small number of claims in the case, the ready availability of model instructions on those relatively commonplace claims, the 34.4 hours Rand claims for drafting proposed jury instructions is excessive. The Town is entitled to a reduction of 20 hours for this task.

With regard to the enlarged exhibits, Rand's generally well-detailed billing records mix this task in with other tasks in a way that makes it impossible to discern exactly how much time was devoted to it. However, those records strongly suggest that the amount of time was minimal, and even though most of the blow-ups were not used, the court shall not penalize Rand for some slight amount of overpreparation. Cf. Eli Lilly & Co. v. Zenith Goldline Pharms., Inc. , 264 F.Supp.2d 753, 773 (S.D. Ind. 2003) (explaining that standby witnesses "are an ordinary part of litigation"). The Town is entitled to no reduction for the attorney's fees associated with preparing blow-ups for trial.

Finally, the court is not persuaded by the Town's argument for an overall two-thirds reduction of trial-preparation time. 133 hours of preparation time for a seven-day trial falls within the realm of the presumptively reasonable, and Rand's attorney's time slips amply describe tasks that ...

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