Hall v. Lowder Realty Co., Inc., CIV.A. 97-T-1382-N.

263 F.Supp.2d 1352

P.R. HALL, Plaintiff, v. LOWDER REALTY CO., INC., et al., Defendants.

No. CIV.A. 97-T-1382-N.

United States District Court, M.D. Alabama, Northern Division.

June 3, 2003.

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Elaine R. Jones, Norman J. Chachkin, NAACP Legal Defense Fund, New York, NY, Leslie Proll, NAACP Legal Defense & Education Fund, Inc., Washington, DC, Joe R. Whatley, Jr., Whatley Drake, L.L.C, Birmingham, AL, Charles H. Volz, III, Volz & Williams PC, Montgomery, AL, for P.R. Hall, plaintiff.

Frances Heidt, Fern Singer, Marion F. Walker, Berkowitz Lefkovits Isom & Kushner, Gail Crummie Washington, Birmingham, AL, for Lowder Realty Co., Inc., Lowder New Homes, Inc., Lowder New Homes Sales, Inc., The Colonial Company, James K. Lowder, Jerry Wills, Fraser United States of America ex rel. Ronald L. Sparkman, John Dorough, Jr., Barbara Bonds, Warren Stafford, defendants.

Colonial Bank, c/o Registered Agent, William A. McCrary, Montgomery, AL, pro se.

ORDER

MYRON H. THOMPSON, District Judge.

Plaintiff P.R. Hall, an African-American real-estate agent, brought this lawsuit asserting that her former employer engaged in racially discriminatory-referral practices terminated her employment for opposing discrimination and because of her race; and threatened to terminate her real-estate license for opposing discrimination and because of her race. She named as defendants Lowder Realty Company, Inc., Lowder New Homes, Inc., Lowder New Homes Sales, Inc., Colonial Company, Coldwell Banker Residential Associates, Inc., Coldwell Banker Real Estate Corporation, James K. Lowder, Jerry Wills, Fraser Sparkman, John Dorough, Jr., Barbara Bonds, and Warren Stafford. Hall brought her claims under the Fair Housing Act of 1968 (42 U.S.C.A. §§ 3601 through 3631 (specifically § 3604, subsections (a) through (c), §§ 3605, 3606, and 3617)) (hereinafter referred to as the "FHA") and the Civil Rights Act of 1866 (42 U.S.C.A. § 1981) (hereinafter referred to as "§ 1981"), seeking declaratory and injunctive relief and compensatory and punitive damages. This cause is now before the court on Hall's motions for attorneys' fees and expenses pursuant to 42 U.S.C.A. §§ 1988 and 3613(c)(2); she seeks to recover $ 322,533.78 in fees and expenses from Lowder Realty, the only defendant against which she recovered on the merits.

I.

In federal civil-rights litigation, "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." 42 U.S.C.A. § 1988(b); see also 42 U.S.C.A. § 3613(c)(2) (allowing court to award attorneys' fee in civil action alleging discriminatory housing practice); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (statutory fee-shifting provisions from different statutes have been interpreted consistently). The $ 322,533.78 which Hall seeks in fees and expenses can be broken down as follows:

ATTORNEYS            HOURS          RATES       SUBTOTALS
WHATLEY DRAKE, L.L.C
Joe Whatley          83.0            $ 400      $ 33,200.00
Richard
Frankowski            0.4              200            80.00
Clerk support         4.3               75           322.50
Paralegal support     0.3              105            31.50

NCAAP LEGAL DEFENSE FUND

Leslie Proll        743.4              300        223,020.00
Reed Colfax          96.7              200         19,340.00
Paralegal support
(Addisu
Demissie)           138.4              105         14,532.00
SUBTOTAL                                        $ 290.526.00
Expenses                                           32,007.78
TOTAL                                           $ 322,533.781

Whether Hall is entitled to recover all or part of her fee-and-expense request turns on whether she is a "prevailing party" within the meaning of § 1988 and § 3613(c)(2). In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (citation omitted), the Supreme Court held that, under § 1988, a plaintiff may be considered a prevailing party if the plaintiff succeeds on "any significant issue in the litigation which achieves some of the benefit the part[y] sought in bringing suit." As the Supreme Court explained in Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 790-91, 109 S.Ct. 1486, 1492-93, 103 L.Ed.2d 866 (1989), awards of attorneys' fees and expenses are not dependent on the plaintiff succeeding on "all" of her claims or even on achieving success on the "central" issue in the litigation. All the significant-relief standard requires is that the plaintiff receive at least some relief on the merits of her claim. Once this requirement is met, the plaintiff has, in general, crossed the threshold to a fee-and-expense award of some kind. See id. at 792, 109 S.Ct. at 1493.

Hall was the prevailing party under § 1988 and § 3613(c)(2) when the jury awarded her $ 72,000 in compensatory damages and $ 28,000 in punitive damages on her discriminatory-referral claim against Lowder Realty. As such, she is entitled to be reimbursed for reasonable fees and expenses. The critical question, however, is whether Hall is entitled to the entire $ 322,533.78 she seeks in fees and expenses.

II.

The starting point in setting any fee award for an attorney is determining the "lodestar" figure—that is, the product of the number of hours reasonably expended to prosecute the lawsuit and the reasonable hourly rate for work performed by similarly situated attorneys in the community. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The fee applicant bears the burden of "establishing entitlement and documenting the appropriate hours and hourly rates." Id. at 1303. This burden includes supplying the court with specific and detailed evidence from which it can determine the reasonable hourly rate, maintaining records to show the time spent on the different claims, and setting out with sufficient particularity the general subject matter of the time expenditures so that the district court can assess the time claimed for each activity. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). "A wellprepared fee petition also would include a summary, grouping time entries by the nature of the activity or state of the case." Id. (citation omitted).

A fee applicant should also exercise "billing judgment," id. at 428 (quoting Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939-40), that is, the applicant should "exclude from his fee applications `excessive, redundant, or otherwise unnecessary [hours],' which are hours `that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation, or experience of counsel.'" Id. (citation omitted). "Those opposing fee applications have obligations, too. In order for [district] courts to carry out their duties in this area, `objections and proof from fee opponents' concerning hours that should be excluded must be specific and `reasonably precise.'" Id. (citation omitted).

After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565-66, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986).

In making the above determinations, the court is guided by the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).² See also Blanchard v Bergeron, 489 U.S. 87, 91-92, 109 S.Ct. 939, 943-44, 103 L.Ed.2d 67 (1989). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or 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.

A. Reasonable Hours

Hall's attorneys seek compensation for 1,066.5 hours, including the time spent by paralegals and clerks and time spent preparing the fee-and-expense petition. Johnson v. Mississippi 606 F.2d 635, 638 (5th Cir.1979) (compensation for time expended in the pursuit of attorneys' fees is proper). The court considers three Johnson factors—the time and labor required, the novelty and difficulty of the case, and the amount involved and the result obtained—in assessing the reasonableness of the hours claimed by Hall's counsel. Or, to put it more succinctly, the court must balance the amount of effort against Hall's overall success.

While Hall brought this lawsuit under multiple FHA code sections and § 1981 and against 12 defendants, she essentially raised three claims: that her former employer (1) engaged in racially discriminatory-referral practices; (2) terminated her employment for opposing discrimination and because of her race; and (3) threatened to terminate her real-estate license for opposing discrimination and because of her race.

The Amount Involved and the Result Obtained: Looking at Hall's claims in this fashion, it is clear that Hall prevailed on only one claim and against only one defendant: her discriminatory-referral claim against Lowder Realty. First, prior to trial, Hall stipulated to a dismissal of all claims against Coldwell Banker Residential Associates, Inc. and Coldwell Banker Real Estate Corporation. Second, the court granted summary judgment for the defendants on all but Hall's racially-discriminatory-referral-practices claim and her...