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Kirk v. Mississippi Department of Public Safety

United States District Court, S.D. Mississippi, Northern Division

September 27, 2018




         This cause is before the Court on Plaintiff's Motion for Attorneys' Fees and Costs. The Court, having considered the Motion, Response, attachments to the pleadings, as well as supporting and opposing authorities, finds the Motion should be granted in part, and denied in part.

         I. Background

         Ola Kirk (“Kirk”) filed the above referenced lawsuit in this Court alleging claims of employment discrimination under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e, [1]and constitutional rights violations in violation of 42 U.S.C. § 1983.[2] The case was tried to a jury, which found in Kirk's favor and awarded her damages in the amount of $46, 895.90. The Judgment was later amended to include $1.00 in nominal damages against each Albert Santa Cruz and Donnell Berry. Kirk has now moved for attorneys' fees in the amount of $269, 600.00 (674 hours billed at hourly rate of $400), and costs in the total amount of $7, 051.65. In response, Defendants do not challenge whether Kirk is entitled to recover attorneys' fees or costs, but do challenge the reasonableness of the No. of hours and hourly rate she claims.

         II. Discussion

The United States Supreme Court has found:
The most useful starting point for determining the amount of a reasonable fee is the No. of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

         Hensley v. Eckerhart, 461 U.S. 424, 432 (1983). See also Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993)(“To determine the [attorneys' fees] award amount, the court must first calculate the “lodestar” by multiplying the No. of hours reasonably spent on the litigation times a reasonable hourly billing rate.”). In addition to reducing the No. of compensable hours “[w]here the documentation of hours is inadequate”, see Hensley, 461 U.S. at 433, the Court may also exclude hours that “are excessive, redundant, or otherwise unnecessary.” Id. at 434. The Court must then “select an appropriate hourly rate based on prevailing community standards for attorneys of similar experience in similar cases.” Shipes v. Trinity Indus., 987 F.2d 311, 319 (5th Cir. 1993). “The No. of compensable hours is then multiplied by the selected hourly rate to produce the ‘lodestar' amount.” Id. The party seeking the award of attorneys' fees bears the burden to substantiate both the requested No. of hours and the hourly rate. Hensley, 461 U.S. at 437. After calculating the lodestar amount, the court must then determine whether the lodestar should be adjusted based on the factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Shipes, 987 F.2d at 320.

         In support of her request for attorneys' fees, Kirk has submitted a “Records Seeking Fees and Expenses” log (“Records Log”) that provides, inter alia, that her attorney, John Mooney (“Mooney”), had expended 674 hours working on the case, and his work was billed at an hourly rate of $400.00. See Pl.'s Mot. for Attorneys' Fees [Docket No. 144], Ex. B. The Records Log also provides a brief description of the work performed. Id.

         Defendants argue that the No. of hours claimed by Kirk's attorney should be reduced because the entries in the Records Log are vague and were block billed. “The term ‘block billing' refers to ‘the time-keeping method by which [a lawyer] enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.'” Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998). “Courts disfavor the practice of block billing because it impairs the required reasonableness evaluation. When time records are block billed, the court cannot accurately determine the No. of hours spent on any particular task, and the court is thus hindered in determining whether the hours billed are reasonable.” Barrow v. Greenville Indep. Sch. Dist., 2005 WL 6789456, at *4 (N.D. Tex., Dec. 20, 2005).

         Here, many of the entries in the Records Log have been block billed. For example, the entry for August 18, 2015, provides: “Review file regarding upcoming [Mississippi Employment Appeal Board] hearing; and review of Motion to Dismiss and Memorandum Brief of Defendant MDPS, et al; and research.” Similarly, the entry for December 30, 2015, provides: “Research and review file and promotional related issues regarding other comparators; telephone consultation with client regarding promotional matters within Agency; drafting of charge of discrimination against the Agency; and telephone conference with the office of the EEOC, Larry Turner.” Interestingly, at the time of this entry, Kirk's lawsuit had been pending in this Court for over a year, and no amendment was made to the Charge of Discrimination underlying this case. In sum, based on the numerous block-billed entries contained in the Records Log, it is impossible to ascertain what percentage, if any, of billed hours pertains to, or were necessary for, the litigation of this lawsuit.

         Generally, the problem caused by block billing is remedied by performing a percentage reduction of between 10% and 30% in the No. of hours claimed. See Barrow, 2005 WL 6789456, at *5 (and cases cited therein). Based on the extensive block billing performed by Kirk's attorney, which occurred well over a four-year period, the Court will reduce the claimed No. of hours by 25 percent.

         Next, Defendants argue that the No. of hours claimed by Kirk's attorney should be reduced because of lack of billing judgment, which refers “to the usual practice of law firms in writing off unproductive, excessive, or redundant hours.” Depriest v. Walnit Grove Corr. Auth., 2017 WL 4228751, at *4 (S.D.Miss. 2017). The complained of lack of billing judgment is predicated on the significant amount of time Kirk's attorney spent on research and generically reviewing the file, and a review of the Records Log reveals that it contains many entries listing unspecified research, and other entries indicating that research memoranda were created for the file. See Ex., Mot. for Attorneys' Fees, Ex. B (entry for July 4, 2014, providing: “Research and memorandum to the file regarding violation of the Equal Protection Clause ...”); Id. (entry for July 7, 2014, listing “research” among the other tasks performed that day). The lack of billing judgment is also predicated on Kirk's attorney having spent considerable amounts of time working on non-complex matters. See ex. Id. (entries of October 26-28, 2015, indicating that Kirk's attorney billed a total of 3.5 hours working on a three-page joint Motion to Extend the Case Management Deadlines). Based on the excessive No. of hours billed for non-complex tasks and generic research that has not been shown to have had any bearing on this case, the Court will reduce the claimed No. of hours by an additional 25 percent.

         Defendants also argue that the hours Kirk's attorney billed for the work he did while representing her before the Mississippi Employees Appeals Board (“EAB”) should be excluded because that work was not necessary for this litigation. While Kirk's attorney claims that the documents and evidence obtained through the EAB matter “greatly assisted” in the litigation of this lawsuit, he has not cited to any case law suggesting that the EAB proceeding can be considered an action or proceeding under Title VII or Section 1983 for which attorney fees may be awarded. Accordingly, the Court will strike the 80.5 hours attributable to the EAB proceeding. Additionally, having reviewed the Records Log, the Court finds there are multiple entries for tasks that should have been performed by clerical or ...

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