Weekes-Walker v. Macon Cnty. Greyhound Park, Inc.

31 F.Supp.3d 1354

Judy WEEKES–WALKER, et al., Plaintiffs

v.MACON COUNTY GREYHOUND PARK, INC. a/k/a VictoryLand, Defendant.

Case No. 3:10–cv–895–MEF.

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

Signed July 16, 2014.

Patrick Ladd Wheeler Sefton, Timothy Justin Gallagher, Sasser, Sefton, & Brown, Montgomery, AL, Fred D. Gray, Jr., Stanley Fitzgerald Gray, Gray Langford Sapp McGowan Gray & Nathanson, Tuskegee, AL, Robert Earl Sasser, Sasser Sefton & Brown, Montgomery, AL, for Defendant.

OPINION AND ORDER

MARK E. FULLER, District Judge.

This cause is before the Court as a result of a hearing to determine damages for the class action Plaintiffs and to consider Plaintiffs' counsels' application for an award of attorneys' fees. Defendant Macon County Greyhound Park, Inc.'s (“MCGP”) liability for violation of the Worker Adjustment and Retraining Act of 1988 (“WARN”), 29 U.S.C. §§ 2101 et seq., has already been established. The bench trial held on May 28, 2014, was held for the limited purpose of considering Plaintiffs' statutory damages under the WARN Act and the reasonableness of Plaintiffs' attorneys' fee request. After weighing the evidence and arguments offered by the parties during the bench trial, the Court finds that the federal statute governing an award of post judgment interest should apply to Plaintiffs' award of prejudgment interest rather than the Alabama statutory rate of 6%. The Court also finds that Plaintiffs' counsel are entitled to an award of attorneys' fees as set forth herein. In support thereof, the Court makes the following findings of fact and conclusions of law:

I. FINDINGS OF FACT

1. Plaintiffs are former employees of MCGP who were laid off on January 5, 2010, February 4, 2010, and August 9, 2010. The employees laid off in January 2010 were laid off so that renovations could be completed, while the February and August employees were laid off when MCGP closed as a result of imminent raids by the Governor's Task Force on Illegal Gambling.

2. On October 22, 2010, Plaintiffs initiated this action against MCGP for failure to provide sixty days notice of their layoffs as required by the WARN Act. Plaintiffs brought the suit as a class action and sought certification with three sub-classes consisting of the January, February, and August 2010 employees. The Court granted Plaintiffs' motion for class certification on March 15, 2012, and accordingly certified the three subclasses. (Doc. # 66.)

3. Plaintiffs moved for partial summary judgment on the issue of MCGP's liability for violation of the WARN Act. On July 6, 2012, the Court granted summary judgment in Plaintiffs' favor finding that the undisputed facts established MCGP failed to provide sixty days notice for each sub-class in violation of the WARN Act. (Doc. # 113.) In its summary judgment opinion, the Court certified the question of MCGP's liability for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

4. The Eleventh Circuit affirmed the Court's grant of summary judgment in Plaintiffs' favor as to the February and August 2010 sub-classes, but reversed and remanded as to the January 2010 sub-class. Sides v. Macon Cnty. Greyhound Park, Inc., 725 F.3d 1276 (11th Cir.2013). The Eleventh Circuit held that the January 2010 layoffs would violate the WARN Act if the January layoffs were expected to last less than six months because the February 2010 closing of MCGP would have converted the January “short-term layoff” into an “employment loss” requiring sixty days notice. Sides, 725 F.3d at 1282–82. The Eleventh Circuit remanded the case back to this Court to determine whether the January 2010 layoffs were expected to last less than six months.

5. Upon remand, the parties stipulated that the length of time of the January 2010 layoffs was less than six months. (Doc. # 131.)

6. The Court subsequently modified its earlier class certification order and merged the January 2010 class into the February 2010 class. (Doc. # 145.) The class now consists of two subclasses: the February 2010 sub-class (which includes those employees laid off in January for renovations and who were subsequently affected by the February closing) and the August 2010 sub-class.

7. The parties subsequently conducted discovery relevant to the calculation of Plaintiffs' back pay, and the Court held a hearing to consider the parties' evidence.

8. The parties have submitted a spreadsheet containing the names of all class members with a proposed back pay amount for each plaintiff. The amount of back pay for each class member is calculated based on wages paid to each class member by MCGP in November 2009 and December 2009. Those months were used to calculate the employees' pay rate because MCGP was fully operational during those months, and pay records for those months more accurately reflect the full amount of Plaintiffs' pay. MCGP operated with reduced hours in much of 2010. (Doc. # 147–1.)

9. For those class members who were not employed by MCGP in November and December of 2009, the wage information used is the employee's most recent representative two months' wages preceding the employee's layoff. (Doc. # 147–1.)

10. After Plaintiffs' average regular pay rate was calculated based on the use of either the employee's November and December 2009 pay information or last representative paycheck, the pay rate was multiplied by the number of actual work days each employee would have worked in a sixty day period.

11. The total back pay award resulting from this method is $2,021,348.84. (Doc. # 147–1, at 38.)

12. Plaintiffs have also submitted a proposed back pay award that applies Alabama's statutory rate of 6% to a calculation of prejudgment interest. Applying the 6% rate of prejudgment interest to the back pay award would result in a total award of $2,512,945.61.

13. Plaintiffs have not submitted a proposed back pay award that applies MCGP's proposed prejudgment interest rate, which is the same as that used for post judgment interest under 28 U.S.C. § 1961(a). Section 1961(a) uses the one-year Treasury yield (“Treasury Rate”) to determine an award of interest. At the time of the February 4, 2010 layoffs the Treasury Rate was 0.29%. See, Federal Reserve Statistical Release, available at http://www. federalreserve.gov/releases/h15/.¹ At the time of the August 9, 2010 layoffs the Treasury Rate was 0.25%. See id.

14. Plaintiffs have not sought damages on behalf of any employees who might have incurred medical expenses as a result of their layoff in violation of the WARN Act. Plaintiffs request the Court to issue no judgment on whether any employee is entitled to medical expenses to allow potentially affected Plaintiffs to pursue medical expenses individually.

15. Plaintiffs have also applied for an award of attorneys' fees pursuant to the WARN Act. 28 U.S.C. § 2104(a)(6).

16. Plaintiffs' counsel have submitted a spreadsheet with the hours spent and hourly rates of each attorney and paralegal who worked on the case. (Doc. # 148–1, at 2–3.) Class counsel are the following firms: The Segrest Law Firm, Bailey & Glasser, LLP, Hardin & Hughes, LLP, and Robert Sims Thompson PC.

17. The affidavit submitted by Philip Dale Segrest, Sr. covers counsel for the Segrest Law Firm. Dale Segrest has forty-five years of legal experience, which includes eighteen years as an Alabama Circuit Court Judge. Dale Segrest seeks an hourly rate of $350 for 556.8 hours. Mike Segrest began at The Segrest Law Firm in 2007 as an investigator and law clerk. He was admitted to law practice on April 27, 2012 during the course of this case and has been practicing as a licensed attorney for two years. Mike Segrest was responsible for recognizing the cause of action in this case and has participated significantly in the case. (Doc. # 148–4, at 65 ¶ 5.) Mike Segrest seeks hourly rates of $150 as a law clerk for 255.4 hours, $200 as an intern for 230.6 hours, and $300 as an attorney for 430.05 hours. Teresa Huff is a paralegal at the firm and was Dale Segrest's judicial assistant for fifteen years and has been a legal assistant for twelve years. Teresa Huff seeks an hourly rate of $150 for 295.05 hours.

18. The Segrest Law Firm has submitted detailed time records that were made contemporaneously. Some of the billable time included by The Segrest Law Firm includes time spent working on the appeal of this case before the Eleventh Circuit. (See, e.g., Doc. # 148–2, at 37 et seq. )

19. Michael S. Harper, an attorney in Tallassee, Alabama, where The Segrest Law Firm is located, submitted a declaration in support of The Segrest Law Firm's requested fee award. (Doc. # 148–4, at 64–66.) Harper states that The Segrest Law Firm identified the cause of action and initiated the lawsuit in this case. Harper states that $350 an hour is not a typical rate for attorneys in Tallassee, but that this hourly rate is reasonable in this case because it is a complex class-action lawsuit and the attorneys will not receive a contingency fee but will be compensated solely by an award of statutory attorneys' fees.

20. David L. Selby, II submitted an affidavit on behalf of Bailey & Glasser, LLP. David Selby has practiced law for twenty-two years and has extensive experience in class action lawsuits. David Selby seeks an hourly rate of $350 for 374.8 hours. Bailey & Glasser also seeks fees for the work of eleven attorneys at the firm with hourly rates ranging from $250 to $350. (Doc. # 148–1, at 2–3.) An additional declaration by Selby states the amount of experience each additional Bailey & Glasser attorney has. (Doc. # 158.) Bailey & Glasser seeks fees for five paralegals at an hourly rate of $150. Bailey & Glasser also seeks fees for a summer associate at an hourly rate of $145.

21. Bailey & Glasser has submitted detailed time records for hours spent on this case. Some of the billable hours include time spent working on the appeal of this case before the Eleventh Circuit. (See, e.g., Doc. # 148–3 at 27 et seq. )

22. Christina Crow (“Crow”), an attorney who practices...