Gabriel Segovia v. Montgomery County, Tennessee ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0903n.06
Case No. 14-5492
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 08, 2014
GABRIEL SEGOVIA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
MONTGOMERY COUNTY, TENNESSEE, ) TENNESSEE
)
Defendant-Appellee. )
____________________________________/
Before: MERRITT, WHITE, and DONALD, Circuit Judges.
PER CURIAM. This case asks us to decide whether the district court abused its
discretion by reducing Plaintiff’s award of attorney’s fees and costs based on his counsel’s false
documentation of hours spent on the case. In 2013, a jury awarded Plaintiff Gabriel Segovia
back pay in an action against his government employer after it took adverse action against him
for exercising his First Amendment rights. As the prevailing party, Plaintiff moved for an award
of attorney’s fees and costs pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure
54(d)(2). After an evidentiary hearing, the district court granted the motion but reduced
Plaintiff’s request for attorney’s fees by 75% based upon admissions that his attorney had billed
far more time than actually worked and for several services not actually provided. The district
court also reduced the costs requested to an amount reflected by the documentation provided.
Case No. 14-5492
Gabriel Segovia v. Montgomery County, Tennessee
For the reasons set forth below, we hold that the district court did not abuse its discretion and
AFFIRM.
I. Factual Background
Plaintiff Gabriel Segovia originally filed this lawsuit in March 2010. Of his five separate
claims for relief, only the First Amendment retaliation claim survived to trial—all others were
dismissed at summary judgment by order entered in March 2011. In July 2013, following a two-
day trial, a jury returned a verdict in Plaintiff’s favor and awarded him $79,382.81 in back pay
only. Notably, the jury declined to award any other compensatory damages. Plaintiff
subsequently filed a “Motion for Attorney’s Fees and Costs Pursuant to 42 U.S.C. § 1988 and
FRCP 54(d)(2),” seeking recovery of $198,514.00 in attorney’s fees and $4,066.70 in costs. In
support thereof, Plaintiff submitted the affidavit of his counsel, Robert J. Martin, who asserted
that he had expended 619.6 hours of work at the rate of $350.00 per hour.
Defendant filed a response in opposition, arguing that both the hourly fee and hours
claimed were excessive. The district court set an evidentiary hearing and ordered that counsel
bring all client files to the hearing.
At the hearing the district court, after lengthy questioning, found Mr. Martin’s billing to
be highly inaccurate and grossly exaggerated. Martin admitted charging .4 or .5 hours minimum
for activities such as reviewing a one-line letter or scheduling order. According to the district
court, such entries would have taken seven minutes a word to review a one-sentence order.
This admission was thus inconsistent with Martin’s affidavit, which swore that “[t]he time
reflected on this bill is an accurate indication of time devoted to this matter.” Moreover, Martin
admitted to the court that he had billed for activities his paralegal performed.
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After receiving heavy criticism from the district court, Martin filed a supplemental
motion adjusting the itemized billing statement to reflect his “actual” time spent prosecuting the
case. Martin’s revised statement reduced the number of hours spent on “receipt and review” of
certain documents and on correspondence with his client and opposing counsel, for a total fee of
$163,699.00 and $4,066.70 in costs.
Defendant again objected to both the hours and hourly rate Martin sought and challenged
a number of Martin’s entries, including 39.3 hours preparing to file the complaint, 63.2 hours
responding to Defendant’s motion for summary judgment, and 133 hours for “Trial Preparation.”
Regarding trial preparation, Defendant argued:
Given that the testimony presented in Plaintiff’s case-in-chief consisted of
Plaintiff and three (3) witnesses for a total of less than half a day, more than three
whole weeks of “Trial Preparation” appears excessive. With regard to counsel’s
preparation for the cross-examination of defense witnesses, there were no
depositions to review given that Plaintiff did not depose one defense witness. . . .
Defendant does not intend to discount the fact that counsel is an experienced trial
attorney; instead, Defendant objects to the number of hours billed by an expert in
the field for common litigation tasks like drafting and responding to discovery
requests. An expert can justify a higher billable rate because he can complete
tasks that require substantial skill more efficiently than someone who is not an
expert in the field. . . .
Defendant submits that there should be a downward deviation . . . of at least 50%
of counsel’s requested fee.
Plaintiff’s reply to Defendant’s objections did not address any of the specific objections
listed above.
Award of Attorney’s Fees Under 42 U.S.C. § 1988
The district court awarded Plaintiff $40,318.63 in attorney’s fees—a 75% reduction of
the amount requested. Even with Martin’s revised billing statement, the district court determined
that substantial reduction was proper based upon its “personal observations of counsel during the
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course of this litigation, the prior hearing on attorneys’ fees during which counsel made
numerous admissions about the inaccuracy (to put it kindly) of his original application, [and] a
thorough review of the information and supporting documents before the Court.”
Award of Costs Under 42 U.S.C. § 1988
In support of his motion for an award of costs, Martin submitted an itemization of
expenses, including costs for legal research, filing fees, and a single deposition transcript. The
district court found that Martin provided adequate documentation for certain expenses allowable
under 42 U.S.C. § 1988, including mileage, parking, and a single photocopy receipt from a
FedEx Office. Although Martin had originally requested $4,066.70 in costs, the court found that
the documentation provided was legally insufficient to support such an amount and reduced the
award to $438.45—an amount reflected by the documentation Martin provided.
Denial of Costs Under 28 U.S.C. § 1920
The district court also declined to award any costs under 28 U.S.C. § 1920, which
provides for awards including docket fees and expenses for investigation, depositions, and
witnesses.1 The court found that Martin had failed to comply with Local Rule 54.01 for the
Middle District of Tennessee, which requires that a “Bill of Costs” with supporting
documentation be submitted to the Clerk of Court within thirty days from the entry of judgment.
Rather, Martin had filed a “Motion to Allow Bill of Costs” thirty-nine days after the entry of
judgment. Thus, the district court found this request untimely and denied an award of any costs
under this section.
1
Costs pursuant to § 1920 encompass those awarded under Federal Rule of Civil Procedure 54(d), which
provides for an award of costs, other than attorney’s fees, to prevailing parties.
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II. Standard of Review
A trial court has wide discretion in making equitable judgments regarding an award of
attorney’s fees under 42 U.S.C. § 1988. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A trial
court’s fee award is entitled to substantial deference due to its “superior understanding of the
litigation and the desirability of avoiding frequent appellate review of what essentially are factual
matters.” Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 634 (6th Cir. 2009) (citation
and internal quotation marks omitted). Accordingly, an appellate court reviews for an abuse of
discretion an award of attorney’s fees, Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291,
302 (6th Cir. 2008), and an award of costs under § 1988, Waldo v. Consumers Energy Co., 726
F.3d 802, 827 (6th Cir. 2013) (citations omitted).
III. Analysis
A. Attorney’s Fees
A party seeking an award of attorney’s fees under § 19882 has the burden of proving the
basic time/rate elements of a reasonable fee. Hensley, 461 U.S. at 437. To meet this burden, the
fee petitioner must “submit evidence supporting the hours worked and rates claimed.” Id. at 433.
The fee applicant should exercise “billing judgment” with respect to hours worked. Id. at 437.
The district court has great leeway in awarding attorney’s fees under § 1988. After the
initial lodestar calculation, a district court has discretion to adjust the award based on “relevant
2
Section 1988 provides in pertinent part:
(b) Attorney’s fees
In any action or proceeding to enforce a provision of section[] . . . 1983 . . . , the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee
as part of the costs. . .
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considerations peculiar to the subject litigation.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d
343, 349 (6th Cir. 2000) (citation omitted). As this Court has previously noted:
The district court . . . should exclude from this initial fee calculation hours that
were not “reasonably expended.” This means that “[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,” and thus “[h]ours that are not
properly billed to one’s client are not properly billed to one’s adversary pursuant
to statutory authority.”
Bitna B. ex rel. S.A. v. Gordon, 710 F.3d 608, 628 (6th Cir. 2013) (citations omitted). The
factors which a district court may consider, either in determining the basic lodestar fee and/or
making adjustments thereto, include the twelve listed in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).3
In its memorandum opinion, the district court properly calculated Martin’s requested
attorney’s fee by applying the “lodestar” method from Hensley, which also provides that
“[w]here the documentation of hours is inadequate, the district court may reduce the award
accordingly.” 461 U.S. at 433. The district court set forth the basis for the reduction of Martin’s
fee as follows:
The Court has considered the [Johnson] factors and concludes a substantial
reduction is proper in this case. Based on the Court’s personal observations of
counsel during the course of this litigation, the prior hearing on attorneys’ fees
during which counsel made numerous admissions about the inaccuracy (to put it
kindly) of his original application, a thorough review of the information and
3
These factors, which are now part of the settled law of the lodestar analysis under both United States
Supreme Court and Sixth Circuit precedent, include:
(1) [T]he 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 other 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 other 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.
Blanchard v. Bergeron, 489 U.S. 87, 91 n.5 (1989) (citation omitted); Hensley, 461 U.S. at 430 n.3, 434 n.9
(citations omitted); Reed v. Rhodes, 179 F.3d 453, 471 n.3 (6th Cir. 1999).
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supporting documents before the Court, and in conjunction with an analysis of the
aforementioned lodestar factors, the Court finds that the total number of hours for
Martin will be reduced by 75%, which results in a fee award of $40,318.63.
After reviewing the record and the district court’s opinion, we cannot say that Martin
acted responsibly when submitting his petition for attorney’s fees, nor can we say that his
requested fees were reasonable. The court articulated valid reasons for its determination that a
substantial fee reduction was warranted. We agree with the district court that an attorney with
Martin’s years of experience should not bill minimum increments of .4 hours regardless of the
actual amount of time expended. Even Martin’s “revised” billing statement contains numerous
entries that seem excessive at best, given Martin’s level of experience. The district court did not
err by substantially reducing the attorney-fee award. The district court did not rely upon clearly
erroneous factual findings, apply the law improperly, or use an erroneous legal standard.
B. Costs
There are two separate sources of authority for an award of out-of-pocket litigation
expenses. Northcross v. Bd. of Ed. of Memphis City Schs., 611 F.2d 624, 639 (6th Cir. 1979).
One is included in the concept of attorney’s fees under 42 U.S.C. § 1988, which awards costs for
“incidental and necessary expenses incurred in furnishing effective and competent
representation.” Id. (citations omitted). Other litigation costs may be awarded under 28 U.S.C.
§ 1920, including “docket fees, investigation expenses, deposition expenses, witness expenses,
and the costs of charts and maps.” Id.; see also Sullivan Cnty., Tenn. v. Home Indem. Co., 925
F.2d 152, 153 (6th Cir. 1991) (“Congress expressed an unambiguous intent in 42 U.S.C. § 1988
to award attorney’s fees ‘as part of costs’; i.e., as an additional component of the traditional costs
taxed by the court pursuant to 28 U.S.C. § 1920.”) (quoting Oates v. Oates, 866 F.2d 203, 207
(6th Cir. 1989)).
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On appeal, Plaintiff alleges that the district court abused its discretion by reducing the
award of costs under § 1988. We disagree.
1. Award of Costs Under 42 U.S.C. § 1988
An attorney’s fee under § 1988 includes those expenses that are incurred in order for the
attorney to render legal services and that would normally be charged to a fee-paying client,
including “[r]easonable photocopying, paralegal expenses, and travel and telephone costs.”
Northcross, 611 F.2d at 639. An award of costs under this section, however, does not include
those that would normally be paid to a third party. Id.
Plaintiff’s initial motion seeking an award of $4,066.70 in costs was titled “Motion for
Attorney’s Fees and Costs Pursuant to 42 U.S.C. § 1988 and Rule 54(d)(2).” The attached
itemization of costs listed expenses for legal research, filing fees, and Plaintiff’s deposition
transcript. Plaintiff did not include any documentation offering proof of these costs in his initial
motion. Rather, Plaintiff’s revised billing statement—submitted after the district court’s hearing
—included a handful of receipts totaling $115.45. Accordingly, the district court reduced the
award of costs to $438.45, the amount reflected by Martin’s belatedly-provided documentation
of photocopying, mileage, and parking expenses.
We agree with the district court that Martin’s inadequate documentation fails to provide
sufficient justification for an award of any other expense recoverable under § 1988.
2. Denial of Costs Under 28 U.S.C. § 1920
Plaintiff’s motion also sought certain costs under § 1988 that are recoverable only under
28 U.S.C. § 1920.4 Costs pursuant to § 1920 encompass those awarded under Federal Rule of
4
Section 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:
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Civil Procedure 54(d), which provides, “[u]nless a federal statute, these rules, or a court order
provides otherwise, costs––other than attorney’s fees—should be allowed to the prevailing party.
See Fed. R. Civ. P. 54(d) (emphasis added). “These include those costs incurred by a party to be
paid to a third party, not the attorney for the case, which cannot reasonably be considered to be
attorney’s fees.” Northcross, 611 F.2d at 639. Expenses “payable to a third party” include
docket fees, investigation expenses, deposition expenses, witness expenses, and the costs of
charts and maps. Id. Such costs have long been recoverable under § 1920 in the court’s
discretion. Id. However, while Rule 54(d) creates a presumption in favor of an award of such
costs, a court’s discretion to award costs is also limited by the statutory definition of costs in 28
U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, 482 U.S. 437, 441–42 (1987). As a
result, there is a presumption that those costs not expressly authorized by § 1920 are precluded.
Id. at 445.
While it is possible that certain itemized costs, including the single deposition transcript,
might ordinarily be awardable under § 1920, the district court did not abuse its discretion in
denying an award based on Martin’s failure to comply with Local Rule 54.01, which requires a
prevailing party to submit a “Bill of Costs” with supporting documentation to the Clerk of Court
within thirty days of the entry of judgment. Martin filed a “Motion to Allow Bill of Costs”
thirty-nine days after the entry of judgment.
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
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We hold that the district court did not abuse its discretion in finding that Plaintiff failed to
comply with the court’s local rules, and therefore affirm the denial of costs under 28 U.S.C.
§ 1920.
IV. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
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