Mercer v. Duke University

301 F.Supp.2d 454

Heather Sue MERCER, Plaintiff, v. DUKE UNIVERSITY, Defendant.

No. 1:97 CV 00959.

United States District Court, M.D. North Carolina.

January 22, 2004.

Martha Melinda Lawrence, Burton Craige, Patterson, Harkavy & Lawrence, Raleigh, NC, for plaintiff.

John M. Simpson, Michelle C. Pardo, Caroline M. Mew, Fulbright & Jaworski, L.L.P., Washington, DC, for defendant.

MEMORANDUM OPINION

BEATY, District Judge.

Currently before the Court is Plaintiff's Amended Motion for Award of Attorney's Fees [Document # 132], pursuant to which Plaintiff seeks to have the Court award attorney's fees. For the reasons stated below, Plaintiff's Amended Motion for Award of Attorney's Fees is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

In October 2000, this Court held a bifurcated jury trial on Plaintiff Heather Sue Mercer's ("Plaintiff" or "Mercer") claims of gender discrimination against Duke University ("Defendant" or "Duke") brought pursuant to Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681-1688.¹ Based upon the evidence presented at trial, the jury concluded that Coach Fred Goldsmith ("Goldsmith"), head coach of the Duke football team, had discriminated against Mercer on the basis of her gender and that Duke was liable for such discrimination under Title IX.² In a separate deliberation solely on the issue of damages, the jury awarded Mercer $1 in compensatory damages and $2,000,000 in punitive damages. Subsequently, Mercer filed a Motion for Attorney's Fees [Document # 118], which this Court considered in conjunction with Duke's Motion for Judgment as a Matter of Law, and its Alternative Motion for a New Trial and/or a Remittitur.

On March 12, 2001, this Court denied Duke's Motion for Judgment as a Matter of Law, and its Alternative Motion for a New Trial and/or a Remittitur, based upon the evidence that was presented to the jury during the trial. Specifically, the Court relied upon the following information to support the jury verdict rendered in favor of Mercer:

(1) Goldsmith made gender-biased comments towards Mercer; (2) Goldsmith treated Mercer differently with respect to her membership on the football team because she was a woman, particularly in light of the fact that he would not permit her to play on the scout team, would not permit her to stand on the sidelines during the home games with her teammates, would not issue her pads or a uniform, and created an inactive status solely for her; (3) [Duke University] President [Nan] Keohane and Athletic Director [Tom] Butters had actual knowledge of Mercer's treatment while on the football team and of the fact that she was alleging discrimination based upon her gender; (4) Keohane and Butters failed to respond to or to investigate Mercer's allegation in a timely or reasonable manner aimed at uncovering and remedying any discriminatory conduct; and (5) Goldsmith's conduct towards Mercer was discriminatory and was based upon her gender in violation of Title IX.

Mercer v. Duke Univ., 181 F.Supp.2d 525, 547-48 (M.D.N.C.2001), vacated in part and remanded per curiam, 50 Fed. Appx. 643 (4th Cir.2002). The Court concluded that "the weight of the evidence supports the jury's verdict that the actions taken against [Mercer] were motivated because of her gender and that [Duke's] officials were actually aware of and deliberately indifferent to [Mercer's] claim that Goldsmith was discriminating against her because of her gender." Id. at 548. As a result of Duke's deliberate indifference, the Court upheld the jury's punitive damages award, id. at 548-49, 552, which the Court had previously determined was available as a remedy available under Title IX. Id. at 544-45.

In its March 12, 2001 opinion, this Court also awarded Mercer, as the prevailing party, attorney's fees pursuant to 42 U.S.C. § 1988(b).³ To determine the appropriate amount of attorney's fees, the Court calculated the lodestar amount, which is determined by multiplying the number of hours reasonably expended by a reasonable rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174-75 (4th Cir.1994). To determine the reasonable rate and the reasonable number of hours in order to calculate the lodestar amount, the Court relied upon the twelve Johnson factors: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the level of 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; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputations, 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. See Rum Creek Coal Sales, 31 F.3d at 175 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)). Because Mercer presented her fee request based on the Johnson factors and, after review, Duke stipulated to the Court that the time and expenses submitted by Mercer's attorneys were reasonable, the Court granted Mercer's Motion for Attorney's Fees in the amount of $340,939.50 for fees, and in the amount of $47,860.33 for costs, for a total award of $388,799.83. Mercer, 181 F.Supp.2d at 553-54.

Duke appealed the award of punitive damages and attorney's fees and costs, but not the jury's finding of liability, to the United States Court of Appeals for the Fourth Circuit. On appeal, the Fourth Circuit vacated both the award of punitive damages and the award of attorney's fees and costs and remanded the case to this Court for reconsideration of the issue of attorney's fees and costs. Mercer v. Duke Univ., 50 Fed. Appx. 643, 645-46 (4th Cir.2002) (per curiam). Specifically, the Fourth Circuit found that punitive damages are not an available remedy under Title IX by relying upon the Supreme Court's decision in Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). See Mercer, 50 Fed. Appx. at 644 (citing Barnes ). In Barnes, the Supreme Court held that punitive damages are not available for private actions brought under Title VI of the Civil Rights Act of 1964 ("Title VI"). Barnes, 536 U.S. at 189, 122 S.Ct. at 2103. Because Title IX is modeled after Title VI and is interpreted and applied in the same manner as Title VI, the Fourth Circuit concluded that punitive damages were not available to Mercer under Title IX. Mercer, 50 Fed. Appx. at 644.

On appeal, after vacating the punitive damages award, the Fourth Circuit noted that Mercer was left with only one dollar in compensatory damages. Id. at 645. Duke argued that, under Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), Mercer's nominal-damages award standing alone was insufficient to support an award of attorney's fees and therefore requested the Fourth Circuit to vacate the fee award in its entirety. See Mercer, 50 Fed. Appx. at 645-46. While the Fourth Circuit ultimately did vacate Mercer's fee award, it disagreed with the notion that attorney's fees are never appropriate when a plaintiff only recovers a nominal-damages award. See id. at 646 (citing Clark v. Sims, 28 F.3d 420, 425 (4th Cir.1994)) (stating that "[the Fourth Circuit] ha[s] never interpreted Farrar as automatically precluding attorney's fee awards in all nominal-damage cases"). Accordingly, the Fourth Circuit held that whether Mercer should still receive an award of attorney's fees should be decided in the first instance by this Court. Id. In deciding to remand the question of attorney's fees to this Court, the Fourth Circuit first noted that "`[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.'" Id. (alteration in original) (quoting Farrar, 506 U.S. at 115, 113 S.Ct. at 575 (citation omitted)). Nevertheless, the Fourth Circuit reiterated that Farrar does not automatically preclude attorney's-fee awards in all nominal-damages cases. Id. The Fourth Circuit further noted that "Mercer's claim against Duke was the first of its kind, and the jury's conclusion that Duke violated Title IX may serve as guidance for other schools facing similar issues." Id. The Fourth Circuit also offered Justice O'Connor's concurrence in Farrar, which explains that "the success of a plaintiff who recovers only nominal damages `might be considered material if it also accomplished some public goal other than occupying the time and energy of counsel, court, and client.'" Id. (quoting Farrar, 506 U.S. at 121-22, 113 S.Ct. at 578 (O'Connor, J., concurring)). With the above guidance, the Fourth Circuit vacated the award of attorney's fees and remanded the matter to this Court "for reconsideration, in light of Mercer's now limited success at trial, of the amount of attorney's fees, if any, that should be awarded ...." Id.

On January 21, 2003, Mercer filed an Amended Motion for Award of Attorney's Fees requesting an award of $437,622.97.⁴ Notably, Mercer's attorneys adjusted the amount of attorney's fees previously requested by (1) reducing the previously stipulated fees by 3%, which Mercer contends reflects the percentage of time her attorneys spent at trial on damages ($340,939.50 x .97 = $330,711.31); (2) increasing the hourly rate for Mercer's attorneys from $195 to $250, a 28% increase, in accordance with an agreement made with Duke on January 7, 2003 ($330,711.31 x 1.28 = $423,310.47); and (3) adding 57.25 hours for the time Mercer's attorneys spent on the issue of fees in relation to their current Motion (57.25 hours x $250/hour = $14,312.50 + $423,310.47 = $437,622.97). The Court held a hearing on Mercer's ...