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Edward P. Lentz v. the City of Cleveland

November 7, 2011

EDWARD P. LENTZ,
PLAINTIFF
v.
THE CITY OF CLEVELAND, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Solomon Oliver, Jr.

ORDER

Currently before the court are Plaintiff's April 27, 2010 Motion for Attorney Fees and Costs (ECF No. 219), and August 26, 2011 Renewed Motion for Interim Attorney Fees (ECF No. 241). Plaintiff's latter Motion seeks an immediate interim award of that portion of their fees that they claim is not in dispute based on the parties' filings with respect to the April 27, 2010 Motion. For the following reasons, the court grants in part Plaintiff's April 27, 2010 Motion (ECF No. 219), and denies as moot the August 26, 2011 Motion (ECF No. 241).

I. BACKGROUND

On January 26, 2007, a jury returned a verdict in Plaintiff's favor for damages for claims of racial discrimination and retaliation brought under both Ohio and federal statutes, namely under Ohio R.C. § 4112, 42 U.S.C. §§ 1981 and 1983, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Verdict Form, ECF No. 166.) The amount of the verdict was $800,000.00. (Id.) Subsequent to the jury trial and verdict, Plaintiff filed a Motion for Attorney's Fees and Costs but this Motion was termed by the court "subject to reassertion after either Defendants' time to file a notice of appeal passes or, if an appeal is taken, after resolution of the appeal, whichever occurs sooner." (Sept. 21, 2007 Op. and Order, ECF No. 195.) Defendants appealed to the Sixth Circuit, and Plaintiff cross-appealed the denial of pre-judgment interest. On June 4, 2009, the Sixth Circuit denied Plaintiff's cross-appeal and affirmed the district court's judgment, but remanded for the district court to calculate an appropriate remittitur of the judgment or otherwise retry the issue of damages. Lentz v. City of Cleveland, 333 Fed. App'x 42, 51 (6th Cir. 2009). On March 5, 2010, Judge O'Malley held that Plaintiff's judgment should be remitted to $292,632.68 and ordered that Plaintiff either accept this remittitur or seek retrial on damages within 10 days. (Mar. 5, 2010 Op. and Order, ECF No. 209.) On March 15, 2010, Plaintiff accepted the Court's remittitur (Notice of Acceptance, ECF No. 210), and on March 16, 2010, the Court entered a judgment for Plaintiff in the amount of $292,632.68. (J. Entry, ECF No. 211.) Defendants filed their Notice of Appeal to the Sixth Circuit on April 15, 2010 and intend to appeal the determination of damages on remand. (Notice of Appeal, ECF No. 215.)

On April 27, 2010, Plaintiff filed a Renewed Motion for Award of Attorney Fees and Costs. (ECF No. 219.) In support of his Motion, Plaintiff attached affidavits from the attorneys who worked on his case: Edward G. Kramer (ECF No. 219-4); David G. Oakley (ECF No. 219-5); and Karen Walsh (ECF No. 219-6). Plaintiff further attached the affidavits of attorneys Patrick McLaughlin (ECF No. 219-7); Diane Citrino (ECF No. 219-8); Franklin J. Hickman (ECF No. 219-9); Bruce Elfvin (ECF No. 219-10); Thomas Corrigan (ECF No. 219-11); Professor Stephen Gard (ECF No. 219-12); and Jack P. Caolo (ECF No. 219-13) to establish the fair market value of civil rights attorneys in the Cleveland Area.

Defendants filed an Opposition to Plaintiff's Motion (ECF No. 229) on July 30, 2010, along with the affidavit of former Judge Peggy Foley Jones (ECF No. 229-2), rebutting Plaintiff's position regarding fair market value of civil rights attorneys in the Cleveland Area. Additionally, Defendants filed itemized objections to Kramer's record of billable hours (ECF No. 229-3), and to Oakley's record. (ECF No. 229-4.)

Plaintiff submitted a Reply (ECF No. 232) on August 18, 2010, supported by updated affidavits from Edward G. Kramer (ECF No. 232-1), David G. Oakley (ECF No. 232-2) and Karen Walsh (ECF No. 232-3), responding to points raised in Defendants' Opposition. Further, Plaintiff attached a new affidavit from Attorney Mary Dryovage averring that, based on her experience and knowledge, the circumstances of Plaintiff's case warrants a multiplier to enhance the fee award for Plaintiff's counsel. (ECF No. 232-4.) On September 30, 2011, the court denied Defendants' Motion to Strike the Dryovage Affidavit as well as Kramer's updated affidavit. (Sept. 30, 2011 Order, ECF No. 245.)

On August 26, 2011, Plaintiff filed a Renewed Motion for Interim Fees seeking an immediate award of the fee amount Plaintiff claims is not in dispute based on the parties' filings with respect to the original Motion. (ECF No. 241.) Defendants filed their Response to this Motion on October 13, 2011 (ECF No. 247), and Plaintiff filed his Reply on October 14, 2011. (ECF No. 248.)

II. LAW AND ANALYSIS

A. Legal Standards

The default rule in our judicial system is that each party bears his own attorney's fees and expenses. Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662, 1671 (2010). Through 42 U.S.C. § 1988(b), however, Congress provided that in certain civil rights cases, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." A party is a "prevailing party" within the meaning of the statute if they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

In calculating a reasonable fee, the court follows the "lodestar" approach, which "produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case." Perdue, 130 S.Ct.at 1672 (emphasis in original). Under this approach, the court multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate. Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005). The party seeking attorney's fees "bears the burden of proof on the number of hours expended and the rates claimed." Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999). In determining the hourly rate, the court "looks to 'the prevailing market rates in the relevant community.'" Perdue, 130 S.Ct. at 1672. The Sixth Circuit has stated that the "hourly rates for fee awards should not exceed the market rates necessary to encourage competent lawyers to undertake the representation in question." Coulter v. State of Tenn., 805 F.2d 146, 149 (6th Cir. 1986).

Where fee documentation is voluminous and certain hours are disputed, the court has discretion to utilize across-the-board reduction by a certain percentage, rather than line-by-line reductions. Disabled Patriots of Am., Inc. v. Reserve Hotel, Ltd., 659 F. Supp. 2d 877, 885 (N.D. Ohio 2009). See also Auto Alliance Intern., Inc. v. U.S. Customs Service, 155 Fed. App'x 226, 228 (6th Cir. 2005) (recognizing propriety of "an across the board reduction based on excessive or duplicative hours").

Lastly, the Sixth Circuit has stated that "multipliers, or fee enhancements to the Lodestar calculation, are permissible in some cases of 'exceptional success.'" Barnes v. City of Cincinnati, 401 F.3d 729, 745 (6th Cir. 2005) (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). Recently, in Perdue, the Supreme Court stated that an enhancement may be appropriate only in "those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee." 130 S.Ct. At 1673.

B. Attorney's Fees for Kramer

1. Hours of Work Performed

Plaintiff seeks attorney's fees for 541.8*fn1 hours of work performed by counsel Edward G. Kramer. (Pl.'s Reply Br. 29, ECF No. 232.) Based upon their objections to Kramer's time records, Defendants argue that fees should only be awarded for 391.41 hours of work performed by Kramer. Defendants' largest objection is to 189 hours which they argue Plaintiff billed by "lumping tasks together" on a daily basis rather than by itemizing specific tasks. (Defs.' Br. in Opp'n 19, ECF No. 229.) Based on the large number of objections related to lumping, Defendants request that this court utilize its discretion in reducing these 189 hours by 30%, for a total reduction of 56.7 hours. (Id.)

The party seeking a fee award bears the burden of proving that the number of hours performed was reasonable. Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999) Courts in this circuit have reduced the lodestar where billing records "itemize time on a daily basis, rather than by task, mak[ing] it impossible to determine the amount of time spent on each task." Cleveland Area Bd. of Realtors v. City of Euclid, 965 F. Supp. 1017, 1021 (N.D. Ohio 1997); see also Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 553 (6th Cir. 2008). As the court explained in City of Euclid, the lumping of hours may cause a court to be "unable to determine the reasonableness of many of the hours expended." Id.

In this case, the court has reviewed the Defendants' table of objections as well as Kramer's Affidavit and Time Record. (ECF No. 219-4.) While Kramer's time record includes multiple entries in which several tasks were lumped together, the most notable instances of lumping were in the days preceding and including trial. This is not surprising, as an attorney must often perform a wide range of tasks in the final few days of preparation. For instance, on 1/15/07, Kramer reported 13.8 hours of work performed for: review opening statement and make [c]omments, [c]onference w/DGO and EL [,] [r]evise questions for EL and Steinberg[,] [r]review Dr. Tosi expert report, prepare Cross-x questions for Tosi to discuss with Steinberg [,] [r]review complaint and trial notebook, preparing [f]or trial, read summary judgment order, read "jury works" book and make notes on juror types to select, work on voire dire, work on using trial exhibits and blow ups, review DVD [o]n newscasts.

Such entries make it impossible for the court to determine the reasonableness of the time spent on any individual task, though the total number of hours billed for this particular date may appear reasonable in light of the fact that much time goes into trial preparation. Accordingly, the court declines to reduce the lodestar by 56.7 hours, which represents just over 10% of the overall request for 541.8 hours, and will only apply a 5% across-the-board reduction for multiple instances of lumping tasks.

Defendants next object to 19.89 hours which involve Plaintiff's claim for pre-judgment interest (Defs.' Br. in Opp'n 13.) Plaintiff's claim for prejudgment interest has twice been denied, and thus Defendants argue that he should not be entitled for attorney's fees for hours spent in pursuit of this claim. The court agrees with Defendants that Plaintiff should not be awarded fees for these hours. However, since some of the objected-to entries include work performed on the issue of post-judgment interest, which Plaintiff has been granted, the court will simply apply an across-the-board 3% reduction to the lodestar. Hensley, 461 U.S. at 436--37 (holding that where hours were expended in pursuit of unsuccessful claims "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success").

Defendants next object to 19.2 hours relating to entries they describe as "vague" and to 4.2 hours of work performed for tasks they describe as being "clerical" in nature. Most of these objections relate to communications with Plaintiff, and internal communications between Kramer and co-counsel. In response, Plaintiff cites to the Code of Professional Responsibility, which "requires an attorney to keep the client informed of the status of the litigation. The important question is whether these calls were excessively long." (Pl.'s Reply Br. 8--9.) While Plaintiff is correct that it is good practice to keep a client apprised of the status of the litigation, there is a potential for inefficiencies relating to client and internal communications in a case involving three separate attorneys with varying levels of experience. Disabled Patriots of Am., Inc., 659 F. Supp. 2d at 897. As the court in Disabled Patriots noted, under such circumstances, "it is incumbent upon the Plaintiffs' counsel to actively seek to avoid unnecessary costs that will, in all likelihood, eventually be charged to the Defendants." Id. The court added that "many of these communications could have been relegated to the least experienced attorney, a paralegal, or a non-billing employee."

Id. Based on its review of the time records, it appears that Kramer, who is requesting the highest hourly rate, was the primary point of contact for Plaintiff. For example, Kramer bills a number of entries involving telephone calls with Plaintiff to set up, confirm, or cancel meetings. While none of these calls appear to be unreasonably long, they nevertheless add up. Consequently, the court will apply an across-the-board reduction of 2% to the lodestar for inefficiencies relating to internal communications and communications with Plaintiff. With respect to tasks Defendants claim are "clerical," the court finds that several of the objected to entries are not clerical in nature, including the drafting of a fee agreement, and others have been accounted for in the 2% reduction relating to inefficiencies in client communications.

Finally, in his Reply to Defendants' Opposition, Plaintiff requests compensation for an additional 34 hours of work performed in responding to Defendants' Opposition in addition to hours previously billed for work relating to Plaintiff's Motion for Fees. (Pl.'s Reply, Second Kramer Aff., ECF No. 232-1, Ex. E.) However, "the Sixth Circuit follows the 'three percent rule' in determining whether the requested hours associated with litigating the amount of attorney's fees are reasonable." Disabled Patriots of Am., Inc.,659 F. Supp. 2d at 891(citing Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 620 (6th Cir.2007)). Under this rule, "the hours associated with preparing the motion requesting them should not exceed three percent of the total compensable hours." Id. In this case, Plaintiff has exceeded this three percent (3%) threshold. While Defendants have not raised any specific objections in relation to hours billed for fees, the court nevertheless undertakes its own review of the time records and has the inherent authority to determine the reasonableness of a fee award. In addition to the 34 hours of work billed by Kramer in Plaintiff's Reply, Kramer has, by this court's count, billed approximately 111.8 hours relating to the request for fees. This amounts to a total of 145.8 hours, which would represent approximately 10% of the hours billed by Kramer, Oakley, and Walsh combined. This is unreasonable, and indeed, a review of Kramer's records reveals a number of inefficiencies, including duplicative work resulting from Plaintiff's premature filing of a Motion for Attorney's Fees and Costs. Thus, the court will apply an across-the-board reduction of 7% to Kramer's billable hours.

In sum, the court finds that Kramer's lodestar should be reduced by 17%, for a total reduction of 92.1 hours. Thus, Plaintiff is entitled to a fee award for 449.7 of hours of work performed by Kramer.

2. The Hourly Rate

Having calculated the lodestar, the court must next determine the hourly rate for Kramer based on the evidence put forth by the parties regarding the prevailing market rate for civil rights attorneys in the Greater Cleveland area. Kramer is a 1975 graduate of Case Western Reserve University School of Law, who since 1979 has been a shareholder of Kramer & Associates, L.P.A., a two-person law firm, where he has developed experience in employment and civil rights matters. (Kramer Resume, ECF No. 219-4.) Since 1975, Kramer has also been Director and Chief Counsel for The Housing Advocates, Inc., a public-interest law firm specializing in fair-housing matters. (Id.) Kramer has been an Adjunct Professor of Law at Cleveland-Marshall College of Law since 1991, and has published a number of articles. (Id.) In support of his Motion, Plaintiff filed affidavits from various attorneys and one law professor attesting to prevailing rates for civil rights attorneys in the Greater Cleveland area and the background and experience of counsel in this case. Plaintiff's experts averred as follows:

* Patrick M. McLaughlin, who "has served as trial and litigation counsel in civil and criminal cases since 1978 " and "[a]s a partner in McLaughlin & McCaffrey, LLP, [is] familiar generally with the fees and rates charged by lawyers in civil litigation, including civil rights and complex litigation, in the Greater Cleveland area." (McLaughlin Aff ΒΆ 6, ECF No. 219-7.) In McLaughlin's professional opinion, an "hourly rate in the range of $425.00 to $450.00 for professional services performed from 2003 through March, 2007" is reasonable in the Greater Cleveland area for an attorney ...


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