United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR ATTORNEY FEES
MARCIA
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE
THIS
MATTER comes before the Court pursuant to Mr.
Deasy's Motion for Attorney Fees (# 90),
the Defendant's (“Optimal”) response
(# 100), and Mr. Deasy's reply
(# 105).
FACTS
The
Court assumes the reader's familiarity with the
proceedings to date. In summary, Mr. Deasy alleged (#
1) a single claim that, as an employee of Optimal,
he was not paid overtime compensation as required by the Fair
Labor Standards Act (“FLSA”). Optimal asserted
counterclaims against Mr. Deasy, sounding in fraud and
negligence, arising out of allegations that Mr. Deasy engaged
in misconduct relating to patient records. The Court
ultimately dismissed (# 55, 59, 60) those
counterclaims when he modified his claim for damages relating
to the completion of the patient records. The case then
proceeded to a jury trial in November 2018. The jury found in
favor of Mr. Deasy on his FLSA claim, awarding him
approximately $23, 000 in damages. Pursuant to 29 U.S.C.
§ 260, the Court subsequently entered an order
(# 87) doubling the jury's award,
entering judgment in favor of Mr. Deasy in the amount of $46,
642.76.
Mr.
Deasy now moves (# 90) for an award of $267,
505.50 in attorney fees and $552.77 in costs pursuant to 29
U.S.C. § 216(b). In response (# 100),
Optimal argues: (i) the rates charged by Mr. Deasy for a
legal assistant are unreasonable; (ii) certain amounts of
time claimed by Mr. Deasy reflected unreasonable duplication
of attorney time; (iii) time related to defending against
Optimal's counterclaims should not be chargeable against
Optimal; (iv) the total claimed by Mr. Deasy should be
reduced by 20%; and (v) Mr. Deasy's requested costs
should be denied because he did not claim them via a Bill of
Costs. In reply, Mr. Deasy increases his demand for fees by
$13, 902.50, to account for additional attorney time
preparing the reply to the motion.
ANALYSIS
A.
Fees
29
U.S.C. § 216(b) provides that where the court enters
judgment in favor of an employee under the FLSA, that the
court shall also “allow a reasonable attorney's fee
to be paid by the defendant, and the costs of the
action.” Attorney fee claims under the FLSA are
analyzed under the familiar “lodestar” analysis,
by which the Court first determines a presumptive fee award
by multiplying the reasonable number of hours expended by
counsel and staff by a reasonable hourly rate, and then makes
adjustments to that lodestar figure in certain circumstances.
See generally Zina v. Congrove, 680 F.3d 1236, 1242
(10th Cir. 2012). The burden is on Mr. Deasy, as
the party seeking fees, to establish the reasonableness of
the hours and rates claimed. Flitton v. Primary
Residential Mortg., 614 F.3d 1173, 1176 (10th
Cir. 2010).
Turning
first to the question of reasonable hourly rates, Mr.
Deasy's counsel claims time billed by two attorneys,
Richard Barkley and Jeanine Anderson, and one law clerk, Tina
Xu. Mr. Barkley's time is billed at $350 per hour and Ms.
Anderson's is billed at $325 per hour, and Optimal lodges
no challenge against those rates. Ms. Xu, who was a law
student until May 2018 and was awaiting the bar exam
thereafter, bills her time at $150 per hour. Optimal contends
that the rate claimed for Ms. Xu is excessive and contends
that a rate of $100 per hour is the maximum reasonable rate
for a person of Ms. Xu's qualifications.
The
Court agrees with Optimal that the rates charged for
paralegal work is an appropriate comparator for the work
performed by Ms. Xu, particularly given that much of Ms.
Xu's billed work involved collecting and summarizing
documents and preparing and revising discovery responses,
rather than extensive legal research or drafting legal
briefs. Optimal cites to the Colorado Bar Association's
2017 Economics of the Practice of Law Survey for the
proposition that paralegals with 1-2 years of experience (Ms.
Xu apparently had approximately 2 years of part-time work
experience before graduating) are billed at a mean rate of
$105 per hour, a median rate of $100 per hour, and that the
75 percentile rate for such employees is $130 per hour. But
the mean or median hourly rate does not necessarily reflect
the maximum hourly rate that can be deemed
“reasonable” for such work; otherwise, some 50%
of the law firms would be billing paralegals at
“unreasonable” hourly rates. The Court finds that
the 75 percentile rate more closely reflects the boundary
between hourly rates that are “reasonable” and
those that are not. Accordingly, the Court finds that an
hourly rate of $130 per hour is the maximum reasonable hourly
rate for Ms. Xu's services. It appearing that Ms. Xu
billed a total of 180 hours of time, a reduction in her
hourly rate from $150 to $130 reduces the amount Optimal
claims by $3, 600.
Turning
to the question of reasonable hours, the Court begins with
Optimal's argument that Mr. Deasy's fee claim should
be reduced by roughly $40, 000 to reflect time that Mr. Deasy
spent addressing Optimal's state-law counterclaims;
Optimal argues that because such claims “were not
related” to Mr. Deasy's FLSA claim, and therefore
should not give rise to a fee award. Citing Jane L. v.
Bangerter, 61 F.3d 105, 1512 (10th Cir. 1995)
(noting that prevailing plaintiffs may claim time spent on
“interrelated claims” and that interrelatedness
turns on whether the claims share “a common core of
facts”). This Court previously determined that, to the
extent Mr. Deasy claimed damages arising from time he spent
“precharting” patient records, his FLSA claims
shared a common core of facts with Optimal's
counterclaims. Docket # 55 at 6-7. Accordingly, the
Court finds that time spent by Mr. Deasy's counsel
relating to Optimal's counterclaims is compensable.
The
Court also considers Optimal's abbreviated argument that,
because Mr. Deasy requested $137, 000 in damages prior to
trial, and reduced that sum to $92, 000 by the time of trial,
the jury's ultimate award of only $23, 000 in damages
reflects a limited degree of success warranting an
unspecified reduction in fees. Citing Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983). The 10th
Circuit has rejected the “mechanical approach” of
reducing fee claims simply because a plaintiff requested
substantially more in damages that he or she ultimately
recovered. Latin v. Bello Trucking, Inc., 720
Fed.Appx. 908, 911 (10th Cir. 2017) (rejecting
argument that fee award should be reduced because plaintiff
recovered only $33, 875 after requesting $291, 943 in
damages), citing Flitton, 614 F.3d at 1178
(rejecting argument that reduction was necessary where
plaintiff recovered only $354, 000 after demanding $27
million). As Latin explains, “the key question
is whether, in light of the entire litigation, plaintiffs won
substantial relief.” Id. Here, Mr. Deasy's
award of $23, 000 in damages is indeed significantly less
than what he requested from the jury, but the Court cannot
say that such a sum is insubstantial. Accordingly, the Court
declines to reduce Mr. Deasy's fee request based on his
alleged limited success.
Optimal's
last remaining argument is that Mr. Deasy's counsel's
records reflect duplicative and excessive time entries in
various respects, warranting a reduction of nearly $30, 000
in fees. The Court need not delve deeply into the specifics
of the parties' argument on particular points, such as
whether road construction made it take longer for counsel to
drive to where a deposition was being held. The Court finds
that there is some unnecessary duplication in Mr. Deasy's
counsel's billing. For example, Ms. Xu's presence, as
a third attorney for Mr. Deasy at trial, was unnecessary
given that the case was not particularly complex and could
adequately be tried by two experienced counsel. Ms. Xu's
presence at trial and at pre-trial courtroom training
accounts for roughly 22 hours of unnecessary time.
The
Court also agrees with Optimal that the billing records
reflect an unusually-large number of entries devoted to
discussions among attorneys. For example, in the
randomly-selected second half of October 2018, Mr. Barkley
billed time for e-mail or telephone conferences with Ms.
Anderson or Ms. Xu on 10 different occasions; Ms. Xu also
billed at least 10 times[1] during this same period for conferring
by e-mail or telephone with Ms. Anderson or Mr. Barkley; Ms.
Anderson billed similarly for at least 3 additional
occasions. Communication and coordination can be of benefit
to a client, particularly when each participant brings
something to the conversation that advances the legal theory
or strategy. But routine communication among counsel that is
part of law office operation or that merely conveys
information among multiple professionals working on the
matter arguably does not benefit the client. In such cases,
it is not reasonable to charge for the time of each
participant to the communication. The Court is mindful that
Mr. Deasy has represented that his counsel has already
reduced their billings by 20% to account for any unnecessary
overlap or excess, but the Court is not confident that such a
reduction adequately captures the extent of overlap. Because
there are so many billing entries that would ...