United States District Court, D. New Hampshire
ORDER No. 2014 DNH 262.
LANDYA McCAFFERTY, District Judge.
George Wilson won a jury verdict against Port City Air, Inc. ("Port City") on claims for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New Hampshire's Law Against Discrimination, N.H. Rev. Stat. Ann. ("RSA") § 354-A. Before the court are Wilson's motions for: (1) either additur or a new trial on damages; and (2) attorneys' fees and costs. Port City objects to Wilson's first motion in its entirety and also objects to the amount of fees and costs Wilson seeks. The court heard oral argument on Wilson's motions on December 1, 2014. For the reasons that follow, Wilson's motion for additur or a new trial is denied, and his motion for attorneys' fees is granted in part.
Wilson initially sued four defendants in 20 counts. Against Port City, he asserted: (1) three claims for racial discrimination and two claims for retaliation under RSA 354-A; (2) three claims for racial discrimination and two claims for retaliation under Title VII; and (3) a state common-law claim for wrongful discharge. He also asserted nine claims against Port City employees Robert Jesurum, Ned Denney, and Adam Clark, but those claims were all dismissed before trial. At trial, Wilson prevailed on identical state and federal retaliation claims that "Port City suspended and/or discharged [him] in retaliation for filing a complaint with the New Hampshire Commission for Human Rights [HRC], " Verdict Form (doc. no. 99) 1, but Port City prevailed on all of Wilson's other claims, including his claim for wrongful discharge, see id. at 2. The jury awarded Wilson $15, 000 in compensatory damages for pain, suffering, and mental anguish resulting from his retaliatory suspension.
Wilson argues that the court committed legal error by: (1) excluding evidence of lost wages; (2) barring him from arguing lost wages to the jury; and (3) failing to instruct the jury on lost wages. For that reason, he asks the court to award him $21, 956 in lost wages, under the theory of additur, or to schedule a new trial on damages.
The problem with Wilson's request is that he did not prevail on any claim for which he could have recovered lost wages. He prevailed on a claim that he was suspended in retaliation for filing a charge with the HRC, and it was undisputed that he was suspended, with pay, until he was discharged. Because Wilson's suspension resulted in no loss of pay, he could not recover lost wages as a remedy for a retaliation claim based upon his suspension. Such a remedy might be appropriate for a retaliation claim based upon termination. But, because Port City prevailed on Wilson's wrongful-termination claim, it is clear that the jury did not find that his discharge was retaliatory. See Porter v. City of Manchester , 151 N.H. 30, 38 (2004) (explaining that to prove wrongful termination, "the plaintiff must show that the defendant was motivated by bad faith, malice, or retaliation in terminating the plaintiff's employment") (quoting Cloutier v. Great Atl. & P. Tea Co. , 121 N.H. 915, 921 (1981)) (emphasis added). Thus, regardless of whether the court was correct in determining that Wilson failed to produce sufficient evidence to permit a reasonable jury to make a non-speculative award of lost wages, his motion for additur or a new trial on damages, document no. 102, must be denied.
III. Attorneys' Fees
The parties agree that Wilson is entitled to some amount of attorneys' fees, pursuant to 42 U.S.C. § 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). Port City does not contest the hourly rates Wilson's attorneys have used to calculate the lodestar. Rather, the parties' disagreement concerns Port City's arguments that the court should: (1) exclude from the lodestar all of the fees and costs generated by two categories of legal work and a portion of the fees generated by a third category of work; (2) deduct fees associated with Wilson's claims against Robert Jesurum, Edward Denney, and Adam Clark; and (3) adjust the lodestar downward.
In his motion, Wilson asks the court to award him $201, 884.70 in attorney's fees and $4, 339.89 in costs. If the court were to apply all of the exclusions, deductions, and adjustments that Port City proposes, Wilson would receive an award for fees and costs in the neighborhood of just over $20, 000. The amount to which Wilson is entitled lies between the amount he seeks and the amount to which Port City says he is entitled. The court begins its analysis by sketching the relevant law and then turns to Port City's proposed lodestar exclusions, deductions, and adjustments.
A. The Relevant Law
The court begins with general principles. Congress has enacted fee-shifting statutes in a number of areas "in order to ensure that federal rights are adequately enforced." Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 550 (2010). More specifically, federal fee-shifting statutes encourage plaintiffs of limited means to bring claims that, if successful, would vindicate rights of importance to the public at large but would not necessarily result in an award of damages that is adequate to attract counsel in the private market for legal services. See City of Riverside v. Rivera , 477 U.S. 561, 576-81 (1986); c.f. Diaz v. Jiten Hotel Mgmt., Inc. , 741 F.3d 170, 178 (1st Cir. 2013) (discussing purpose of Massachusetts fee-shifting statute, which is largely similar to Title VII fee-shifting provision). To the end of ensuring that such claims are litigated, the "reasonable fee" referred to in most federal feeshifting statutes "is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious... case, " Perdue , 559 U.S. at 552 (citations omitted) but not so large that it produces a windfall for the attorney, see id.
Turning to the mechanics of requesting an award of fees, "[t]he 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). Consequently, "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." Hensley , 461 U.S. at 434 (internal quotation marks and footnote omitted). Those factors include:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. [Johnson v. Ga. Highway Express, Inc., ] 488 F.2d [714, ] 717-719 [(5th Cir. 1974)].
Hensley , 461 U.S. at 430 n.3. However, "many of [the so-called Hensley] factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Id. at 434 n.9 (citing Copeland v. Marshall , 641 F.2d 880, 890 (D.C. Cir. 1980)).
"[T]he results obtained' in litigation are a preeminent consideration in the fee-adjustment process.'" Diaz , 741 F.3d at 178 (quoting Joyce v. Town of Dennis , 720 F.3d 12, 27 (1st Cir. 2013)); see also Hensley , 461 U.S. at 434 (explaining that the "results obtained" factor "is particularly crucial where a plaintiff is deemed prevailing' even though he succeeded on only some of his claims for relief"). The term "results obtained" covers a good bit of ground:
It can refer to a plaintiff's success claim by claim, or to the relief actually achieved, or to the societal importance of the right which has been vindicated, or to all of these measures in combination. We think that the last meaning is the best choice, and that, as a consequence, all three types of "results" potentially bear upon the amount of an ensuing fee award.
Joyce , 720 F.3d at 27 (quoting Coutin v. Young & Rubicam P.R., Inc. , 124 F.3d 331, 338 (1st Cir. 1997)); see also Burke , 572 F.3d at 65 n.11 ("After computing the lodestar, the district court would have been within its discretion to consider an adjustment - upward or downward - based on the results obtained by taking into account Burke's claim-by-claim success, the relief obtained, and the societal importance of the right vindicated.").
With regard to the first aspect of results obtained, claimby-claim success, there are cases in which "a plaintiff... present[s] in one lawsuit distinctly different claims for relief that are based on different facts and legal theories." Hensley , 461 U.S. at 434. 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; see also Diaz , 741 F.3d at 173 (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).
But in cases where "the plaintiff's claims for relief... involve a common core of facts or [are] based on related legal theories, " Hensley , 461 U.S. at 435, 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 issues on which the plaintiff did not prevail, see id. 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.2d [934, ] 941, [(1st Cir. 1992)]) (emphasis omitted).
With regard to the second aspect of results obtained, often referred to as "proportionality, " it is well established that a court must "consider the relationship between the extent of success and the amount of the fee award, " Hensley , 461 U.S. at 438, and may adjust a lodestar downward if the two are disproportionate, see Central Pension , 745 F.3d at 6. Such an adjustment may be warranted under several circumstances, including a request for fees that dwarfs a plaintiff's recovery, see id. at 7, or an award of damages that is dwarfed by the amount of damages the plaintiff sought to recover, see id. ...