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Gay v. Saline County

October 20, 2006

TRACY GAY, ET AL. PLAINTIFFS
v.
SALINE COUNTY DEFENDANT



ORDER

Now before the court are Plaintiffs' Application for Attorney's Fees, Costs and Liquidated Damages (DE #129), Plaintiffs' First Supplement to Application for Attorney's Fees, Costs and Liquidated Damages (DE #144),*fn1 and Plaintiffs' Second Supplement to Application for Attorneys' Fees (DE #152). The Fair Labor Standards Act (FLSA) requires employers to pay reasonable attorney's fees to employees who are prevailing parties under the Act. 29 U.S.C. § 216(b). In five separate documents (DE #'s 130, 144, 150, 151 & 152),*fn2 Plaintiffs' counsel have requested the following compensation:

Mr. Holleman-- 1222 hours at $225.00 per hour;

Mr. Hurst--- 662.7 hours at $250.00 per hour; associate counsel-- 21.25 hours at $150.00 per hour; one paralegal-- 448.65 hours at $85.00 per hour; two paralegals-- 5.70 hours at $50.00 per hour two legal assistants-- 2.35 hours at $35.00 per hour. Counsel have also requested costs in the amount of $10,558.78.

Defendant does not oppose an award of reasonable fees and costs in this case if Plaintiffs "ultimately prevail," and it does not oppose the hours and rates requested for work performed by Mr. Holleman's associates and employees, the requested $10,558.78 in costs or Mr. Holleman's requested hourly rate of $225.00 per hour. Defendant does, however, oppose Mr. Hurst's request for compensation at a rate of $250.00 per hour, and it requests the court to reduce his rate to $225.00 per hour. In addition, Defendant requests the court to reduce the rate for twelve of the hours requested by Mr. Hurst because that work was performed by his associates, who should be compensated at the rate of $150.00 per hour, the rate requested by Mr. Holleman for his associates. Finally, Defendant contends counsel should not be compensated for all of the hours submitted because of various inadequacies in their record keeping, including the failure to keep contemporaneous records, which resulted in vague, oversimplified and unreliable entries, duplication of effort and over-billing for apparently routine activities. Defendant also contends Mr. Holleman should not be compensated for 8.75 hours spent communicating with the media, and Mr. Hurst should not be compensated for 12.6 hours submitted as "mock case."

I.

The parties agree the court must consider the issue of attorneys' fees under the standards set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983). Under Hensley, a court must first compute a lodestar amount by multiplying "the number of hours reasonably expended on the litigation" by a "reasonable hourly rate." Id. at 433.

A reasonable hourly rate is "calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886 (1984). The court finds no justification for awarding a higher hourly rate to Mr. Hurst, and I will reduce his rate to $225.00 per hour. In addition, associates will be compensated at the rate of $150.00 per hour; all paralegals will be compensated at the rate of $65.00*fn3 per hour and legal assistants will be compensated at the rate of $35.00 per hour.

II.

In order for a court to calculate the number of hours reasonably expended in a given case, the party seeking the fees must submit adequate documentation supporting the number of hours claimed. The court may deduct hours from this initial number if counsel's documentation is inadequate. Hensley v. Eckerhart, 461 U.S. at 433. In addition, counsel should not request compensation for hours "that are excessive, redundant, or otherwise unnecessary," and the court "should exclude from this initial fee calculation hours that were not 'reasonably expended.'" Id. at 434. "The fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates," and the applicant "should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Id. at 437. The records need not contain "great detail" of how each minute is spent, but should at least identify the general subject matter on which the time was expended and assist the court in determining how much time was spent on particular claims. Id., n.12.

The United States Supreme Court found in Hensley v. Eckerhart, 461 U.S. at 434 n.9, that, in making this initial calculation, a court may also consider the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Those factors are as follows:

(1) the 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 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 the 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.

Id., at 430 n. 3.

Plaintiffs' counsel contend they kept meticulous, contemporaneous time records. Defendant's counsel contends neither counsel for Plaintiffs kept contemporaneous records, and that Mr. Holleman submitted a claim for 6.75 hours for three depositions he did not attend and Mr. Hurst submitted a claim for 6.5 hours for the same depositions. Plaintiffs have submitted copies of the front pages of the transcripts of the depositions in question, which reflect that Mr. Holleman and Mr. Hurst were in attendance at all three depositions (DE # 142, Exhibit 2). Defendant has not responded regarding these documents. Defendant's allegations are not a sufficient basis for a finding that Plaintiffs' counsel did not keep contemporaneous records. In any event, the Eighth Circuit has rejected a per se rule that the lack of contemporaneous records requires the denial or reduction of fee awards, and has held that reconstructed records are acceptable as long as they satisfactorily document the time claimed by counsel. Kline v. City of Kansas City, Mo., Fire Dept., 245 F.3d 707, 708-09 (8th Cir. 2001).

I find the records of both of Plaintiffs' counsel contain many hours of block billing and nonspecific time entries that prevent the court from determining whether the time claimed was reasonably spent, and ...


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