Fox v. Pittsburg State University
Fox v. Pittsburg State University
Opinion of the Court
MEMORANDUM AND ORDER
This employment discrimination action was tried to a jury, which found in favor of Plaintiff Martha Fox on her claims of hostile work environment sexual harassment under Title VII and Title IX against Defendant Pittsburg State University (“PSU”). This matter comes before the Court on Plaintiffs Motion to Alter Judgment for Attorneys’ Fees and Costs (Doc. 211). In conjunction with Plaintiffs fee application, the Court also considers Defendant’s Motion to Strike Plaintiffs Reply Brief in Support of Attorneys’ Fees and Costs (Doc. 243). The motions are fully briefed, and the Court is prepared to rule. As explained more fully below, Plaintiffs motion for attorneys’ fees and costs is granted in part and denied in part. Der fendant’s motion to strike the reply brief is denied.
I. Background
A complete factual background of this case has been recounted in detail in both the summary judgment Order and in the Court’s Order ruling on the merits-based post trial motions.
In February .2014, Plaintiff complained to Cindy Johnson, the Director of Equal Opportunity and Affirmative Action, about the ongoing sexual harassment. Plaintiff alleged Defendant failed to properly investigate the complaints because Johnson refused to interview .ydtnesses. Plaintiff contended she was told that the claim was not investigated because Johnson feared it would start a “firestorm.” Plaintiff alleged she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff alleged she suffered emotional distress damages as a result of the sexual harassment endured. Plaintiffs Complaint alleged hostile work environment sexual harassment in violation of Title VII and Title IX and retaliation in violation of Title VII and Title IX-
Consistent with its incredibly abusive briefing tactics, Defendant filed two response briefs to Plaintiffs one motion for attorneys’ fees and costs — one response to the request for attorneys’ fees
II. Discussion
A. Motion to Strike Reply
Defendant argues Plaintiff’s reply brief to the motion for attorneys’ fees and costs should be stricken under Federal Rule of Civil Procedure Rule 12(f). Specifically, Defendant requests the Court strike the nine exhibits .filed with the reply and new arguments made in the reply. Rule 12(f) .provides “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Plaintiffs reply is not a “pleading” that the Court may strike under Rule 12(f).
In any event, Defendant does not identify .and the Court cannot find new arguments in the reply. Merely stating Plaintiff raised new. arguments is insufficient and not well taken by the Court. As to the nine exhibits attached to the reply, the Court finds these are all responsive to arguments raised in Defendant’s response.
Further, even assuming Plaintiffs reply raised new arguments, the. Court also concludes a motion to strike is not the proper procedure here. When a reply raises a new argument, “the proper course of action for the nonmoving party to respond to such arguments is to seek leave to file a surreply.”
Plaintiff requests $278,808 in attorneys’ fees for counsel Matthew O’Laughlin and Amy Maloney and legal assistant Robin Henshaw. In Title VII and Title IX cases, a district court, “in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.”
1. Duty to Meet and Confer
Under District' of Kansas Local Rule 54.2(a), a party who moves for statutory attorney’s fees pursuant to Fed. R. Civ. P. 54(d)(2) must initiate consultation with the other party. Where the parties cannot come to agreement, the moving party must file a statement of consultation, which includes the date of consultation, the names of those who participated, and the results achieved.
2. Prevailing Party
Defendant contends' Plaintiff is not the prevailing party for purposes of attorneys’ "fees because Plaintiff had her two retaliation claims dismissed at summary judgment. Thus, Defendant infers that Plaintiff is not the prevailing party for 50% of her claims. A prevailing party is one that succeeds “on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.”
Although Plaintiff was unsuccessful on her retaliation claims, Plaintiff is still the prevailing party for purposes of awarding attorneys’ fees. To the extent Defendant argues Plaintiffs hours should be reduced, this Court concludes Plaintiffs successful , sexual harassment claims and her unsuccessful retaliation claims came from a common core of facts with related legal theories. Evidence presented in support of-the sexual harassment claims was often also relevant to the claims of retaliar tion. As such, compensation should not be awarded on a claim-by-claim- basis.. Instead, the Court concentrates on the significance of the overall relief, which was a $230,000 verdict in Plaintiffs favor. This was substantial relief despite Plaintiff not requesting an exact figure for damages in the Complaint. Although Plaintiffs counsel does not need to reduce hours to reflect the dismissed retaliation claims, the Court is satisfied Plaintiffs counsel has self-reduced time working on the retaliations claim,
3. Reasonable Attorneys’ Fees
Plaintiff requests fees for approximately 798.8 hours of work by two attorneys and tpne legal assistant, for a total request of $278,808 in attorneys’ fees. Once a party has established its entitlement to fees as a prevailing party, the Court must determine what fee is reasonable.
Once the court determines the lodestar, it must then determine whether any upward or downward adjustments should be made to the lodestar “to account for the particularities of the suit and its outcome.”
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required; (4) preclusion of other employment; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney’s; (10) the undesirability of the case; (11) the nature and relationship of the professional relationship with the client; and (12) awards in similar cases.38
It is rare that all factors are met.
a. Reasonable Hours
After litigating this case since 2014, Plaintiff submitted time records showing her counsel and the legal assistant spent 798.8 hours working on this matter. Mr. O’Laughlin was the primary attorney in the matter, and he submitted records showing 593.5 hours spent from March 2014 to January 2017.
i. Objections
Defendant’s objections to the hours expended by Plaintiffs timekeepers fall into ten categories: (1) vague, sloppy, imprecise time entries, (2) clerical work, (3) du-plicative work, (4) background research, (5) travel time, (6) block billing, (7) motion to compel, (8) failure to exclude work on the retaliation claim, (9) trial .preparation and attendance and (10) excessive hours. The Court will address each category of objections before analyzing the reasonableness of the hours expended.
Vague, Sloppy, Imprecise Time Entries. Defendant argues a number- of Mr. O’Laughlin and Ms. Maloney’s time entries are impermissibly vague. Plaintiffs burden in an application for attorneys’ fees is to “prove and establish the reasonableness of each -dollar, each hour, above zero.”
Clerical Work. “Purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”
As to Mr. O’Laughlin and Ms. Ma-loney’s time that is alleged to be “clerical,” the Court finds these arguments to be without merit, It is not clerical to read this Court’s Order regarding a motion to compel to determine what evidence must be produced. It' is not' clerical to listen and nóte audio exhibits in preparation for trial, It is not clerical to summarize deposition testimony of a witness for purposes of trial if the attorney is‘examining the witness,
As to Ms. Henshaw’s hours, many appear to be purely clerical or secretarial tasks that must b¿ deducted. In preparing the exhibits, Ms. Henshaw listed 13.5 hours of collecting, scanning, and labeling. Ms. Henshaw also prepared exhibit notebooks for 11.0 hours.
Duplicative Work. Defendant requests that Ms. Maloney’s fee request be denied in toto as duplicative of Mr. O’Laughlin. The Tenth Circuit has cautioned that in determining the reasonableness of hours, it should look for the potential duplication of services.
Ms. Maloney’s work on this'matter can be put into two categories — (1) reviewing and editing and (2) conducting the trial as co-counsel. As to the first category-reviewing and editing — Ms. Ma-loney spent .4 hours editing the Complaint, .2 editing discovery, .3 editing the proposed pretrial, order, .8 hours editing the. response to the first motion to compel, .4 hours editing the response to the second motion to compel, .9 hours editing the motion to exclude the expert witness, .4 hours editing the reply to the motion to exclude, and. 1.8 hours analyzing and editing the response to summary judgment. The Court does not find these hours dupli-cative of Mr. O’Laughlin’s work. As most attorneys know, the drafting process and editing process for legal writing are different. These hours would be properly billed to a client. Therefore, to the extent Defendant objects to Ms. Maloney’s editing, the Court overrules this objection and determines no reduction is necessary.
As to the second category — conducting the trial as co-counsel — Ms. Malo-ney spent time working on voir dire, preparing for cross examination of witnesses who were not deposed, preparing for direct examination of Rick Fox, Sandra Brown, and Blake Cameron, preparing for cross examination of Sue Anne Barnes, Michelle Sexton, Terri Centers, Kay Lynn Jiles, Claude Reno, and Joanne Britz, and preparing for closing arguments. These
Further, Ms. Maloney billed for the entirety of her time at trial, even when Mr. O’Laughlin was examining witnesses or presenting argument. There is no law that Ms. Maloney should not bill for time spent at the courthouse when Mr. O’Laughlin was conducting the trial. The Court notes Ms. Willoughby accompanied Ms. Casement at trial. While Defendant contends it would not have billed for Ms. Casement and Ms. Willoughby, this is a mere conjecture and not permissible argument. Ms. Maloney did not duplicate Mr. O’Laughlin’s work at trial. Both counsel were active participants in the trial, including both examining witnesses, both lodging objections, and both speaking at closing argument. It is not uncommon for an attorney to have several other attorneys at trial to take notes, listen closely to witness testimony, and help with exhibits. For this case, where Defendant listed 20 witnesses, the Court cannot fault Plaintiff for employing two counsel for trial to distribute the work. There is nothing duplicative about Ms. Maloney’s presence at trial, and she was not merely meant for “convenience” as Defendant suggests. The Court overrules Defendant’s objection that Ms. Maloney’s fee request should be denied in toto.
Background Research. Time spent reading background material designed to familiarize an attorney with an area of law is presumptively unreasonable.
Travel Time. Defendant argues counsel’s travel time is not compensable.
Block Billing. “Block billing” is the practice of lumping multiple tasks into a single entry of time such that the billing entry does not delineate how hours were allotted to specific tasks.
Motion to Compel. Defendant argues 'Plaintiff cannot recover attorneys’ fees for the time spent on' a discovery matter in which she was compelled to produce a document. Defendant points the Court to no authority for the proposition that time spent on unsuccessful motions are not recoverable. In Garcia v. Tyson Foods, Inc., the Court, considered whether to deduct hours for the time the plaintiffs counsel spent drafting unsuccessful motions to compel.
Failure to Exclude Hours Related to Retaliation Claim. As the Court stated above in connection with the prevailing party analysis, the Court is satisfied that Plaintiffs counsel reduced hours related to the previously dismissed retaliation claims although they were not required to. Based on the time records, hours were reasonably reduced in connection with preparing the Complaint and summary judgment briefs to reflect time presumably spent researching, drafting, and analyzing retaliation. Thus, the Court overrules this objection.
Trial Preparation and Attendance. Defendant makes three objections to the hours Plaintiffs counsel spent preparing for trial with no citation to authority. First, Defendant argues Plaintiffs counsel prepared a cast, of characters, master time-line, and case timeline that were not used as demonstratives at trial. Second, Defendant argues Plaintiff prepared for witnesses that were not present at trial. Third, Defendant argues Plaintiffs counsel should not recover for time spent at trial where only one attorney was questioning or arguing, or for time spent, waiting for the verdict. The Court finds them without merit.
First, the cast of characters, master timeline, and big picture timeline are properly billed as trial preparation. There is no indication that these materials were ever intended as demonstrative exhibits. It is reasonable to assume that Mr. O’Laugh-lin and Ms. Maloney used these for personal reasons during trial as there was a long list of witnesses, events, and dates. It is entirely reasonable to bill a client for work product prepared in preparation for trial, so it is properly billed here.
Second, Defendant objects to Ms. Maloney preparing to cross examine Terri Centers, Claude Reno, and James Cook and Mr. O’Laughlin preparing to cross examine Terri Centers, Claude Reno, Jack Freeman, and Rob Hunt, none of whom testified at trial. However, these witnesses were all listed on the witness list,
Third, Defendant objects to Ms. Maloney and Mr. O’Laughlin submitting time for attending trial each day be
Excessive Hours. Defendant objects to excessive hours spent on three specific categories of tasks — (1) summary judgment, (2) discovery responses, and (3) drafting the opening statement and closing argument. First, the hours spent on summary judgment were reasonable in light of -its brevity. Defendant objects to the approximately 17.4 hours Plaintiffs counsel spent working on responding to the statements of fact in the summary judgment motion. The Court finds these hours entirely reasonable given the volume of Defendant’s statements of fact, and the need to respond to each fact. Plaintiff also presented 123 of her own statements of fact. The Court determines no reduction is necessary. Second, the 13.2 hours spent responding to, finalizing with the client, and producing discovery are entirely reasonable. While Defendant argues that Plaintiff submitted “canned” objections and answers to discovery, there is still a significant amount of time .spent determining how to answer interrogatories, determining what documents Plaintiff possesses that may be responsive to discovery requests, and crafting a thorough response. The Court further finds this amount of time reasonable because of the volume- of discovery. Third, the 5.5 hours ■ Mr. O’Laughlin spent' drafting the opening statement and closing argument was not unreasonable. The.opening statement and closing argument were not “canned” as Defendant suggests. The time spent preparing was reasonable. The Court overrules this objection. . . . -
ii. Reasonable Hours Standard
Beyond Defendant’s objections, the Court still.must consider the amount of hours reasonably expended by Plaintiffs counsel. In order for the applicant to satisfy its burden of proving the number of hours reasonably spent on the litigation, the party must submit “meticulous, contemporaneous time récords that reveal all hours for which compensation is requested and how those hours were allotted to specific tasks.”
Once the court has adequate time records before it, it must determine wheth
After examining the specific tasks and whether they are properly chargeable, the court should look at the hours expended on each task.
Detailed Records Kept. As the Court explained above, it is satisfied that the time records in this matter were meticulous and contemporaneously kept as opposed to sloppy and imprecise. Ms. Ma-loney and Mr. O’Laughlin submitted thorough time records detailing each task completed.
Hours Properly Chargeable. Plaintiffs counsel has exercised a large amount of billing judgment. Defendant’s counsel appended a visual aid to this motion showing Plaintiffs counsel had reduced nearly 10 percent of their total hours.
Hours Reasonably Expended. The Court finds the hours spent were reasonable when viewed in the context of Defendant’s litigation tactics. The Tenth Circuit has long accepted the proposition that one of the factors useful in evaluating the reasonableness of the number of attorney’s hours in a fee request is “the responses
When viewing the specific tasks, Plaintiff’s counsel’s hours were reasonable. Plaintiffs counsel spent 58.5 hours to prepare for and take eight depositions, including the deposition -of expert Dr. Anderson.
b. Reasonable Hourly Rate
The Court finds that the hourly rates in this matter must be reduced to be reasonable. For Mr. O’Laughlin, Plaintiff requests an hourly rate of $350 for 2014,- $ 350 for 2015, $375 for 2016, and $375 for 2017. For Ms. Maloney, Plaintiff requests an hourly rate of-$360 for 2014, $375 for 2015, and: $400 for 2016. Plaintiff also requests an hourly rate of $65 for Ms. Hen-shaw.
In setting the hourly rate, “the court should establish, from the information provided to it and from it.s own analysis of the level of performance and skill of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits, calculated as of the time the court awards
i. Relevant Market
As a threshold matter, the Court must address the relevant market. Defendant argues the relevant market is Kansas City, Kansas, not Missouri. Defendant then infers Plaintiff’s submissions of evidence of rates in Kansas City, Missouri are in error and should be disregarded. The relevant market is the place where the litigation occurs.
ii. Plaintiffs Evidence of Reasonable Hourly Rate
The Court has before it substantial evidence from Plaintiff that her counsels’
. Ms.- Maloney has practiced law for approximately seventeen years. She is admitted to practice in Kansas and Missouri. She has dedicated 95% of her practice to employment litigation. She clerked for United States District Court Judge Fernando J. Gaitan of the United States District Court for the Western District of Missouri. She began her career at Shook, Hardy & Bacon where she conducted numerous investigations of employment discrimination claims and counseled management on employment compliance issues. She served as a member of the Eighth Circuit Committee on Model Civil Jury
Plaintiff offers Ms. Henshaw’s rate at $65 per hour. Plaintiff submits no information on the skills and experience of Ms. Henshaw. Plaintiff submits no information submitted regarding the rate of a legal assistant with comparable skill and experience in the market. Defendant submitted an affidavit of a practicing attorney that Kansas rates for paralegal work is between $35 to $95, so this is a mid-range rate.
Beyond her counsels’ own affidavits, Plaintiff submits the affidavit of Richard Ralston as to the customary rates in Kansas City.
Plaintiff cites a number of recent employment cases in the district with similar or higher hourly rates. In 2012 in Garcia v. Tyson Foods, Inc., the district court approved hourly rates in a Fair Labor Standards Act (“FLSA”) case for attorneys ranging from $600 per hour, $400 per
iii. Defendant’s Evidence of Reasonable Hourly Rate
Defendant offers contrary evidence regarding the reasonable hourly rate for Mr. O’Laughlin and Ms. Maloney. Defendant first offers the affidavit of its counsel, Ms. Casement.
The Court does not find Ms. Casement’s affidavit persuasive for several' reasons. First, Ms. Casement is practicing in Topeka, Kansas, which typically has different rates than Kansas City.
Defendant offers the affidavit of David Cooper and Todd Thompson to- contradict the affidavit of Mr. Ralston. David Cooper is a partner at Fisher, Patterson, Sayler, & Smith, LLP in Topeka, Kansas. He was admitted to practice in Kansas in 1994. Mr. Cooper has focused his practice on civil defense litigation, including employment law. He has practiced extensively in the United States District Court for the District of'Kansas, including'appearing in 172 federal court cases. He admits that he is retained by liability insurers to defend the insured and governmental entities; so he historically commands a lower rate because of the certainty of payment and the volume of work. He attests that in 2014, 2015, and the first quarter of 2016, he charged an hourly rate of $225, and for the remainder of 2016, he charged an hourly rate of $250. Todd Thompson is a senior attorney at Thompson, Ramsdell, Qualseth & Warner in Lawrence, Kansas. He was admitted to' practice in Kansas more than thirty years ago. Mr. Thompson’s practice has been focused on civil litigation services. Mr. Thompson attests that the prevailing rate in “Topeka and northeast Kansas” is $190-$270 for 15 to 25 years experience.
The Court does not find Mr. Cooper or Mr. Thompson’s affidavits probative for several'reasons. First, Mr. Cooper attests to his rates in Topeka, Kansas, and Mr. •Thompson attests to his rates in Lawrence and “northeast Kansas.” These rates are different than the relevant market, which is Kansas City. While Mr. Thompson states the rates relate to “northeast Kansas” and Kansas City is in northeast Kansas, it is unclear that Mr. Thompson is referring to Kansas City, Kansas and Kansas City, Missouri. Second, Mr. Cooper and Mr. Thompson do not state that they specialize in employment litigation, as Ms. Maloney and Mr. O’Laughlin have attested. Rather, they refer to rates in civil litigation generally. Third, Mr. Cooper’s 'affidavit states that his rates are lower because he is hired by insurers. His rate is not reflective of Ms. Maloney and Mr. O’Laughlin because they took this matter on contingency with no guarantee of payment. Thus, the Court is not persuaded these affidavits reflect the prevailing rate of attorneys with comparable skill and experience in Kansas City as of 2017. The Court finds these affidavits reflect lower rates than what would be reasonable for Ms. Maloney and Mr. O’Laughlin in the Kansas City market.
Defendant also appended the 2012 Kansas Bar Association (“KBA”) survey.
Defendant cited a number of contrary cases regarding hourly rates in Kansas City for Title VII litigation.
iv. Contingent Nature of Fee
The parties dispute the effect of the contingency fee arrangement on the attorneys’ fee award. Defendant argues Plaintiff may only request attorneys’ fees in the amount of the contingency agreement.
Instead of acting as a limit to a fee award, this Court considers the rate claimed by Plaintiffs counsel in the context of the financial-risk Plaintiffs counsel took in prosecuting the case, including delayed payment and the contingency fee agreement.
v. Quality of Representation
Given the contentious nature of this litigation, the Court notes the outstanding quality of Plaintiffs counsel. Plaintiffs counsel was often bombarded with what this Court considers discourteous, unprofessional, and litigious behavior. Plaintiffs counsel acted professionally throughout this litigation despite the behavior of opposing counsel. Further, Plaintiffs counsel impressed this Court at trial. Based on the Court’s experience with counsel, the Court finds the requested rates all the more reasonable.
vi. Conclusion
In conclusion, the Court finds Ms. Ma-loney and Mr. O’Laughlin’s rates to be reasonable in comparison with attorneys of similar skills and experience in the Kansas City metropolitan market. Both Ms. Maloney and Mr. O’Laughlin are experienced and specialized attorneys in employment litigation. They both attest that the rates requested are those customarily charged. As both a former judge and current attorney and mediator in the Kansas
c. Lodestar Calculation
The following is the proper lodestar calculation, which results in a figure of $271,-114.00.
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d. Adjustment to Lodestar
As explained below, the Court finds no adjustment to the lodestar is warranted because the factors either are. subsumed by the lodestar calculation or are neutral.
i. Time and Labor Required
•This issue was adequately addressed through the lodestar calculation.
ii. Novelty And Difficulty of Questions Presented
The Court finds this was a straightforward case of employment discrimination under Title VII and Title IX. There was, however, a novel issue of law relating to the applicability of both Title VII and Title IX in this matter. The skill level and experience necessary to take on this matter is properly accounted for in the hourly rates requested. This factor is neutral.
iii. Skills Requisite to Perform the Legal Service Properly
Plaintiffs counsel regularly litigate employment discrimination cases. Plaintiffs counsel is knowledgeable about employment discrimination cases, and counsel submitted thorough and extensive briefing addressing the factual and legal issues involved in this hybrid Title IX and Title VII case. The approved hourly rate in the lodestar analysis reflects expertise. This factor is neutral.
iv. Preclusion of Other Employment
Plaintiff concedes this factor is not applicable. Defendant does not address this factor.
v. Customary Fee
This issue was adequately addressed through the lodestar calculation.
This issue was adequately, addressed through the lodestar calculation.
vii. Time Limitations Imposed
Plaintiff concedes this factor is not applicable. Defendant does not address this factor.
viii.. Amount Involved and Results Obtained
This issue was adequately addressed through the lodestar calculation.
ixi Experience, Reputation, and Ability of the Attorneys
As already discussed above, Plaintiffs counsel Ms. Maloney and Mr. O’Laughlin are highly experienced in employment litigation matters. This experience and skill is reflected in the reasonable hourly, rates in the Court’s lodestar analysis. This factor is neutral.
x.Undesirability of the Case
Plaintiff argues this- case was undesirable becáuse of the damages limitations imposed. Plaintiff presented evidence of only emotional distress without physical" injury. Defendant is a state entity, so punitive damages were not available. However, Plaintiff received a $230,000' jury verdict despite these limitations, The Court finds although the damages were limitéd, this factor is neutral,
xi. Nature and Length of Professional Relationship with the Client
Plaintiffs counsel present no evidence of a pre-existing attorney-client relationship with Plaintiff. The meaning of this factor, however, and its effect on the calculation of a reasonable attorneys! fee is unclear, and the courts applying this factor typically state that this particular standard is irrelevant or immaterial,
xii. Awards in Similar Cases
The parties do not cite nor could the Court find recent Title VH or Title IX employment discrimination cases granting attorneys’ fees where the case went to trial. However, the Court has outlined above a number of cases put forth by the parties establishing hourly rates. Further, the Court found a number of cases with somewhat similar hourly rates,
C. Nontaxable Costs (Expenses)
Plaintiff also requests. $7,853.72 in taxable and nontaxable costs (expenses) relating to depositions, witness fees, expert witness fees, copies, service fees, and her filing fee. The Court will not address the taxable costs (copies, service fees, witness fees, deposition fees, and filing fee), but it will address the nontaxable costs (expert witness fees). Under Federal Rule of Civil Procedure 54(d)(2)(A), a claim for nontaxable expenses must be made in a motion for attorneys’ fees. As the Tenth Circuit,has reiterated, expenses incurred in representing a client-in civil rights and analogous eases should be included in the attorneys’ fee award if such expenses are reasonable and “usually billed in addition to the attorney’s hourly rate.”
Plaintiff seeks reimbursement of the retainer Defendant’s . expert Dr. Anderson required before being deposed, which was $1,500.
The Court does not address any of the taxable costs sought at this time. Pursuant to 28 U.S.C. § 1920, the Clerk may tax the following costs: fees of the clerk, fees for service of summons and subpoena, fees for printed or electronic transcripts for use in the case, fees and disbursement for printing, fees for witnesses, fees for copies, docket fees, costs as shown on the mandate of the Court of Appeals, compensation of court-appointed experts, and compensation of court-appointed experts.
D. Total Award
The Court has considered the lodestar calculation and the factors for adjustment of the lodestar based on the extensive submissions by both parties. The Court
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Martha Fox’s Motion to Alter Judgment for Attorneys’ Fees and Cost (Doc. 211) is granted in part and denied in part for a total award of $272,614.00. The Clerk is. directed to file a Second Amended Judgment to reflect this award.'
IT IS FURTHER ORDERED that Defendant PSU’s Motion to Strike the Reply to the Motion to Alter Judgment for Attorneys’ Fees and Cost (Doc. 243) is denied.
IT IS SO ORDERED.
. Docs. 127, 250.
. Doc. 1.
. Docs. 66, 74.
. Docs. 80, 92.
. Docs. 104, 106.
. Docs. Ill, 112.
. Doc. 127.
. Docs. 129, 140.
. Docs. 143, 150.
. Docs. 135, 137.
. Docs. 207, 209 (submitting fifty pages of briefing on the motion without the response or reply, including a jurisdictional argument raised for the first time in post-trial motions).
. Doc. 214 (submitting thirty pages of briefing on the motion without the response or reply).
. Doc. 230.
. Doc. 232.
. Doc. 243.
. See, e.g., Doc. 230 at 23 (categorizing Ms. Maloney’s presence at trial as merely for "convenience” despite the fact that she conducted witness examination and closing arguments); Doc. 230 at 15 (implying Mr. O’Laughlin should only be credited with five years of experience because he was admitted to the Kansas bar in 2010 despite having been admitted in Missouri for nearly 14 years); Doc. 230 at 21 (“Plaintiff's counsel seeks to recover time spent driving his Mercedes.”); Doc. 230-7 ("Plaintiff’s open and closing seemed very much stock ... Why did this take Matt O’Laughlin, a professed expert, so much time?”).
. See, e.g., Fed. R. Civ. P. 1 (“[The Federal Rules of Civil Procedure] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”).
. Fed. R. Civ. P. 7(a) (listing documents considered pleadings).
. Doc. 242-2 (revised time records to reflect time spent in 2017 in moving for attorney’s fees and expenses); Doc. 242-3 (emails from Mr. O’Laughlin to Ms-. Casement to respond to argument that emailing opposing counsel is not a clerical task); Doc. 242-4 (attaching declaration of Todd Thompson in á 2006 case to respond to argument regarding Defendant's use of his affidavit in this matter); Doc.242-5 (attaching declaration of Michael Downey regarding customary rate in another district court case); Doc. 242-6 (attaching Form A0133 and costs); Doc. 242-7 (affidavit of Mr. O’Laughliri regarding costs); Doc. 242-8 (email exchange from Mr. O’Laughlin to Ms. Casement regarding Cindy Johnson’s testimony and subpoena in response to Defendant’s argument that it was unreasonable to submit costs for her subpoena).
. N. Ala. Fabricating Co. v. Bedeschi Mid-West Conveyor Co., No. 16-2740, 2017 WL 1836973, at *6 (D. Kan. May 8, 2017) (citing Sheldon v. Khanal, No. 07-2112, 2008 WL 474262, at *4 (D. Kan. Feb. 19, 2008)).
. 42 U.S.C. § 2000e-5(k) (establishing attorneys' fees under Title VII); 42 U.S.C. § 1988(b) (establishing attorneys’ fees under Title IX).
. Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1177 (10th Cir. 2010) (citing Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998)).
. D. Kan. Rule 54.2(d).
. Doc.212-1.
. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (citation omitted).
. See Flitton, 614 F.3d at 1177 (citation omitted).
.- Id.
. Id. (citing Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995)).
. Id. (citing Hensley, 461 U.S. at 440, 103 S.Ct. 1933; Robinson v. City of Edmond, 160 F.3d 1275, 1283 (10th Cir. 1998) (“Litigants should be given the breathing room to raise alternative legal grounds without fear that merely raising an alternative theory will threaten the attorney's subsequent compensation. Instead, a court.should focus on ‘the significance of the overall relief that the prevailing party has won: 'The result is what matters.’ “)).
.- Id. (citing Jane L., 61 F.3d at 1512) (concluding the plaintiff’s successful retaliation claim and her discrimination claim were related for. purposes of attorney's fees); see also Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1418-19 (10th Cir. 1997) (concluding the plaintiff's unsuccessful state-law claims were related to the successful Title VII hostile work environment claim); Wirtz v. Kan. Farm Bureau Servs., 355 F.Supp.2d 1190, 1204-05 (D. Kan, 2005) (consider the plaintiff’s unsuccessful retaliation and harassment claims as related to successful reverse gender discrimination claim).
. Defendant requests the fee award be reduced by 50% because Plaintiff lost 50% of her claims. This logic is not sound given that the retaliation' fclaims- were largely intertwined with the sexual harassment claims, and the retaliation claims were dismissed at summary judgment long before many of the attorneys’ fees were incurred. Further, the Court reviewed the time records and counsel self-adjusted time spent on.the Complaint and summary judgment to exclude time working on the retaliation claims. See, e.g., Doc. 242-2 at 1 (reducin'g time for drafting the Complaint, which contained the retaliation claim, from 2.3 to 1.1 and 1.9 to .9); Id. at 8 (reducing time researching and analyzing summary judgment from 5,7 to 4.7); Id, at 10 (striking time spent working on retaliation section of summary judgment response and reducing time spent editing summary judgment from 6.3 to 3.3). While this is not necessary, the Court finds it an exercise of reasonable billing ' judgment.
. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998).
. Anchando v. Anderson, Crenshaw & Assocs., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
. Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998)
. United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000).
. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
. Zima v. Congrove, 680 F.3d 1236, 1242 (10th Cir. 2012) (citation omitted).
. 488 F.2d 714, 717-19 (5th Cir. 1974). The Tenth Circuit has approved these factors for determining reasonableness. Brown v. Phillips Petro. Co., 838 F.2d 451 (10th Cir. 1988).
. Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 853 (10th Cir. 1993).
. Mathiason v. Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269, 1281 (D. Kan. 2016) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 n.9, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
. Anchondo v. Anderson, Crenshaw & Assocs., LLC, 616 F.3d 1098, 1103 (10th Cir. 2010) (citing Perdue v. Kenny A ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010)).
. Doc. 242-2.
. Doc.212-3.
. Doc. 212-7.
. Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1178 (10th Cir. 2010) (citation and internal quotation omitted).
. Hensley v. Eckerhart, 461 U.S. 424, 437 n.12, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
. See Crumpacker v. Kan. Dep’t of Human Res., 474 F.3d 747, 757 (10th Cir. 2007) ( “The law does not require the district court to reduce its fee award where it finds no difficulty in evaluating the propriety of an attorney’s billing.”).
. Doc. 135. To the extent Defendant objects to Ms. Maloney's work on the exhibit list as clerical, this is not correct as an attorney had to choose the exhibits for trial. The legal assistant then undoubtedly sorted and created the excel sheet that was submitted to the Court.
.-Defendant cites Case v. Unified School District No. 233 for the proposition that this time entry is similar to a disallowed time entry in the case. 157 F.3d 1243, 1252 (10th Cir. 1998). In Case, the court did not allow billing for an entry labeled “conference” because it was not specific. Id.The entries in this case referring to the analysis of depositions of individual witnesses is nothing like the word "conference.” Thus, the Court finds this case easily distinguishable.
. Univ. of Kan. v. Sinks, No. 06-2341, 2009 WL 3191707, at *8 (D. Kan. Sept. 28, 2009) (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).
. Hayes v. I.C. Sys., Inc., No. 14-2513-JTM, 2015 WL 506192, at *4 '(D. Kan. Feb. 6, 2015).
. Sinks, 2009 WL 3191707, at *8.
. Jenkins, 491 U.S. at 288 n.10, 109 S.Ct. 2463.
. See Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F.Supp.2d 1190, 1199 (D. Kan. 2005) ("Who summarizes depositions appears to be a matter of legal strategy, which the court will not second-guess at this stage,”), Defendant argues it had a college student summarize deposition testimony. While this may be a cost-containment measure for Defendant, it.is also likely that it took Mr. O’Laughlin and Ms, Maloney substantially less time to complete summarizing deposition testimony. Mr. O’Laughlin and Ms. Maloney both have significant legal training, and they can likely discern the passages in deposition testimony as necessary proof for trial.
,Plaintiff appended to her reply many of the objected-to emails, Doc. 242-3. The content of the emails appeared to be matters that could ■ only be taken care of by an attorney as .many required legal analysis. The Court is further persuaded these are not "clerical” tasks for legal assistant because they were sent and replied to by Ms. Casement, not a legal assistant.
. Motions for extension of time and motions for leave to file under seal are both documents the attorney signs and files with the Court. D. Kan. Rule 5,4.6, 6.1.
. Ms. Maloney and Mr. O'Laughlin also ' billed time for preparing the exhibits, so the Court presumes Ms. Henshaw was copying, printing, organizing, and binding the exhibits. These are clerical or Secretarial tasks.
. Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998) (quoting Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)).
. Id.
. Id.
. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1258 (10th Cir. 2005) (citation omitted).
. Id. (citing Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1202-05 (10th Cir. 1986) (finding it is appropriate to reduce the hours expended due to the inexperience of an attorney which has led to overbilling)).
. Case, 157 F.3d at 1253.
. Ross v. Rothstein, No. 13-2101, 2016 WL 274878, at *8 (D. Kan. Jan. 22, 2016) (concluding research related to substantive disputed issues was recoverable).
. Defendant cited Thames v. Evanston Insurance Co. for the proposition that travel time is not compensable. However, this is an incorrect recitation of that court's ruling. 665 Fed.Appx. 716, 721-22 (10th Cir. 2016). Rather, Thames states the court may reduce hours
. Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F.Supp.2d 1190, 1199 (D. Kan. 2005).
. Barbosa v. Nat'l Beef Packing Co., No. 12-2311, 2015 WL 4920292, at (9 (D. Kan. Aug. 18, 2015) (citing Aquilino v. Univ. of Kan., 109 F.Supp.2d 1319, 1326 (D. Kan. 2000)).
. Defendant attached a Google map showing that the route from Mr. O'Laughlin and Ms, Maloney’s office to the Court takes ten minutes by car. Doc. 230-10, Defendant suggests that the 30 minutes billed roundtrip was unreasonable. However, the Court finds that Mr. O’Laughlin and Ms. Maloney were likely driving during peak hours (i.e. 8 a.m. and 5 p.m.), so it was reasonable that it took 15 minutes each .way. The reduction from ,5 to .2 is proper, and it is not unreasonable. ‘
. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1214-15 (10th Cir. 2000).
. See Barbosa v. Nat’l Beef Packing Co., No. 12-2311, 2015 WL 4920292, at *9 (D. Kan. Aug. 18, 2015).
. No. 06-2198, 2012 WL 5985561, at *7 (D. Kan. Nov. 29, 2012).
. Id.; see also Ross v. Rothstein, No. 13-2101, 2016 WL 274878, at *11 (D, Kan. Jan. 22, 2016) (declining to reduce hours based on an unsuccessful motion to compel and motion for a protective order where the party had a
. Docs. 80, 92.
.. Doc. 137.
. Doc. 179 .(subpoena for Claude Reno).
. Defendant argues Ms. Casement told Plaintiffs counsel at the end of each trial day what witnesses it intended to call the n^xt day. Expecting counsel to wait until the night before each witness’s testimony to prepare is unreasonable. This is especially so. where counsel had not deposed many of the witnesses at issue.
. Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000) (quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983)),
. Case v. Unified Sch. Dist. No. 233 Johnson, Cty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998) (citing Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995)).
. Id. at 1250.
. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005).
. Case, 157 F.3d at 1250.
. Id.
. Id. (quoting Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983)).
. Id.
. Id. (citing Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1202-03 (10th Cir. 1986)).
. Doc. 212-3; Doc. 242-2.
. Doc.212-7.
.Doc.230-11.
. Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998) (citing Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983)).
. City of Riverside v. Rivera, 477 U.S. 561, 580 n.11, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (citing Copeland v. Marshall, 641 F.2d 880, 904 (1980)).
. The Court is further' persuaded that the hours are reasonable because of the Court's own substantial time spent preparing orders in this matter. For example, the Court issued a nearly 70-page order on the substantive •post-trial motions. Thus, drawing on the Court’s own experience, the Court finds the hours all the more reasonable.
.Defendant objects to Plaintiff taking depositions of Sandra Brown and Blake Cameron because they were “friendly” witnesses. However, Plaintiff explained these depositions were necessary to respond to summary judgment. There was little time spent on the two depositions as well. The Court finds it reasonable that Plaintiff’s counsel would háve billed Plaintiff for time expended on these depositions.
. Sussman v. Patterson, 108 F.3d 1206, 1211 (10th Cir. 1997) (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983)).
. Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
. Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998).
. Id. at 1203,
. Id.; see also Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1255 (10th Cir. 1998); Ramos, 713 F.2d at 555.
. See Case, 157 F.3d at 1257; Ramos, 713 F.2d at 555.
. Lippaldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006) (citing Case, 157 F.3d at 1257).
. Erickson v. City of Topeka, Kan., 239 F.Supp.2d 1202, 1209 (D. Kan. 2002),
. For a point of reference, the United States District Court for the Western District ■ of Missouri Kansas City division is three miles from the United States District Court for the District of Kansas. It is seven minutes by car on the fastest route.
. As Defendant so aptly cites, Kansas Supreme Court Rule 1.5(a) requires that a lawyer's fee be reasonable. It would undoubtedly be unreasonable for a practitioner in the Kansas City metropolitan area to charge a client one rate for litigation in Kansas City, Missouri and another lower rate for litigation a couple of miles away in Kansas City, Kansas.
. Acord Seamands v. Sears Holding Corp., No. 09-2054, 2011 WL 884391, at *13 n.14 (D, Kan. Mar. 11, 2011).
. Defendant cited numerous cases that were tried in Topeka, Kansas and Wichita, Kansas with lower hourly rates. Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F.Supp.2d
. Doc. 212-4 (affidavit-of Mr. O’Laughlin); Doc. 212-5 (affidavit of Ms. Maloney).
. Defendant makes an argument that Mr. O’Laughlin’s experience as an attorney should run from the time he was admitted to Kansas, which is 2010, Doc. 230 at 14 n.4. Defendant concludes Mr. ■ O’Laughlin only has seven years of experience practicing in Kansas. The Court finds this argument frivolous, Mr, O’Laughlin has been a practicing attorney in Missouri since' 2002. There is no reason to cut his experience as an attorney by seven years when calculating attorneys’ fees because he was not admitted to practice in Kansas until 2010. Further, Title VII and Title IX are federal laws, and they do not require knowledge of Kansas-specific cases.
. Doc.230-5.
. See, e.g., Koehler v. Freightquote.com, Inc., No. 12-2505, 2016 WL 3743098, at *5 (D. Kan. July 13, 2016) (approving a reasonable rate of $125 for the legal assistant’s time recorded); Barbosa v. Nat'l Beef Packing Co., No. 12-2311, 2015 WL 4920292, at *10 (D. Kan. Aug. 18, 2015) (approving a reasonable rate of $75 for paralegal time).
. Doc.212-6.
.Defendant argues that Mr. Ralston may only attest to Missouri rates since he is licensed and practices in Kansas City, Missouri, so he may not testify to the rates in Kansas. This argument is without merit for three reasons. First, the Court has found the relevant market is the Kansas City metropolitan area, including Missouri and Kansas. Second, Mr. Ralston is familiar with both Missouri and Kansas rates as a practitioner and judge in the Kansas City metropolitan area. Third, he attested that the rates were reasonable for Kansas City, Kansas. Doc. 212-6 at 3.
. No. 06-2198, 2012 WL 5985561, at *3-4 (D. Kan. Nov. 29, 2012).
.- Id.
. No. 12-2505, 2016 WL 3743098, at *5 (D. Kan. July 13, 2016).
. Id.
. No. 12-2311, 2015 WL 4920292, at *10 (D. Kan. Aug. 18, 2015).
. Id.
. Doc.230-2.
. See Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F.Supp.2d 1190, 1203 (D. Kan. 2005) (citing defense counsel's hourly rate).
. Kan. Penn Garning, LLC v. HV Props. of Kan., LLC, 790 F.Supp.2d 1307, 1319 (D. Kan. 2011) ("The court is well aware that over the years Topeka has consistently lagged behind Kansas City and Wichita in hourly rates.”); Erickson v. City of Topeka, Kan., 239 F.Supp.2d 1202, 1209 (D. Kan. 2002) ("Any assumption that the rates of attorneys in the Topeka, Kansas legal community are substantially similar to those in the Kansas City, Missouri area is unfounded.”).
. Sussman v. Patterspn, 108 F.3d 1206, 1212 (10th Cir. 1997) (pointing out that "Although the rate charged by the losing counsel may be relevant in determining a reasonable hourly rate, we have discounted that information where .. the opposing counsel represents a governmental entity.”).
. Doc. 230-3. It is worth noting that these rates were calculated in 2012 and five years has passed, so the rates are undoubtedly higher given the passage of time.
. Aquilino v. Univ. of Kan., 109 F.Supp.2d 1319, 1325 (D. Kan. 2000); Lintz v. Am. Gen. Fin., Inc., 87 F.Supp.2d 1161, 1171 (D. Kan. 2000); Wilder-Davis v. Bd. of Cty. Comm’rs of Johnson Cty., Kan., No. 98-2363, 2000 WL 1466691, at *5 (D. Kan. Aug. 8, 2000); Lappin v. Gwartney, No. 99-2292, 2000 WL 1532765, at *11 (D. Kan. Sept. 18, 2000),
. Aquilino, 109 F.Supp.2d at 1325 (counsel had twenty years of experience with only 10 years' in "civil rights" litigation); Lintz, 87 F.Supp.2d at 1171 (counsel had seventeen years of trial experience, but he did not demonstrate experience or expertise in employment discrimination or analogous litigation); Lappin, 2000 WL 1532765, at *11 (defendants did not object to the rates, so there was. no analysis of experience of the attorney). t
. In 2010 in Bell v. Turner Recreation Commission, the district court approved an hourly rate of $250 in an employment discrimination case for an attorney with thirty years of experience. No. 09-2097, 2010 WL 126189, at *7 (D. Kan. Jan. 8, 2010). In 2015 in Moore v. Amsted Rail Co., the district court approved an hourly rate of $295 in a Family and Medical Leave Act ("FMLA") retaliation and interference case for a senior associate and partner. No. 14-2409, 2015 WL 866958, at *4 (D. Kan. Mar. 2, 2015.). These more recent cases demonstrate that the rate is significantly higher than the $155 — $165 rate Defendant suggest. ' ■
. See Doc, 230 at 12 (hypothesizing that Plaintiff's agreement with counsel was for 40% of the verdict, so attorneys' fees should be 'capped at $92,000). Defendant argues Plaintiff is required to produce the contingency- agreement for purposes of this motion as it is "customary.” See Erickson v. City of Topeka, Kan., 239 F.Supp.2d 1202, 1207 (D. Kari. 2002) ("[P]laintiff’s counsel has represented 'that a written fee agreement exists, but curiously has failed to provide a copy of that fee agreement to the court, as is customary in fee applications.”). There is no' law requiring Plaintiff to produce such an agreement. The Court is satisfied that Plaintiff and Plaintiff’s counsel had a contingency fee arrangement as both Mr; O'Laughlin and Ms. Maloney provided that information in their affidavits.
. Blanchard v. Bergeron, 489 U.S. 87, 94, 96, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (“We have never suggested that a- different approach is to be followed in cases where the prevailing party and his (or her) attorney have executed a contingent-fee agreement”).
. See also Venegas v. Mitchell, 495 U.S., 82, 87, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990) (directing courts to use the lodestar method to calculate statutory fees even when the attorney does not bill by the hour).
. Garcia v. Tyson Foods, Inc., No. 06-2198, 2012 WL 5985561, at *3-4 (D. Kan. Nov. 29, 2012).
. City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). Defendant cites Pennsylvania v. Delaware Valley Citizens’ Counsel for Clean Air for the proposition that the court may not consider contingency fee arrangements. 483 U.S. 711, 724, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). However, this is not a proper recitation of the law. Rather, Delaware Valley states that the lodestar is presumed to be reasonable, and enhancement for risk of nonpayment should be reserved for exceptional cases where need and justification for such enhancement are readily apparent and supported by evidence in the record. Id. at 729-31, 107 S.Ct. 3078.
. Dague, 505 U.S. at 562, 112 S.Ct. 2638.
. See id.; see also Garcia, 2012 WL 5985561, at *3-4.
. Dague, 505 U.S. at 563, 112 S.Ct. 2638.
. See, e,g., Barbosa v. Nat’l Beef Packing Co., No. 12-2311, 2015 WL 4920292, at *12 (D. Kan. Aug. 18, 2015).
. Hoffman v. Poulsen Pizza LLC, No. 15-2640, 2017 WL 25386, at *7 (D. Kan. Jan. 3, 2017) (Judge Crabtree approved hourly rates of $600, $400, and $ 450 in an FLSA case); Mathiason v. Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269, 1280-81 (D. Kan, 2016) (Judge fungstrum awarding $325 for lead counsel, $350 for a firm partner, $200 for an associate, and $125 for a paralegal in a disability discrimination case); Ross v. Rothstein, No. 13-2101, 2016 WL 274878, at *8 (D. Kan. Jan. 22, 2016) (Judge Crabtree approving rates of $400, $315, $270, $200 for attorneys); Barbosa v. Nat’l Beef Packing Co., LLC, No. 12-2311-KHV, 2015 WL 4920292, at *10 (D, Kan. Aug, 18, 2015) (Judge "Vratil finding hourly rates of $325 to.$42.5 for experienced attorneys, $180 for attorneys with little to no experience, and $75 for paralegals reasonable in 2015 Kansas City FLSA case); Moore v. Amsted Rail Co., No. 14-2409, 2015 WL 866958, at *4 (D. Kan. Mari 2, 2015) (Judge Melgren approving an hourly rate of $295 in a FMLA retaliation and interference ' case for a senior associate and partner in Kansas City); Mr. Elec. Corp. v. Khalil, No. 06-2414-CM, 2013 WL 5651398, at *6 (D, Kan. Oct. 16, 201,3) (Judge Murguia approving a $305 per hour rate for ah' totbllectual property attorney who was a fifth year associate at -the beginning of the case but, during the seven-year history of the litigation, progressed to Counsel); Kan. Penn Garning, LLC v. HV Props. of Kan., LLC, 790 F.Supp.2d
. Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1257 (10th Cir. 1998) (citing Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983)).
. - Id.
. Doc. 242-6; 242-9.
. 42 U.S.C. § 2000e-5k (“[T]he court, in its discretion, may allow the prevailing party[ ] a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.”(emphasis added)); 42 U.S.C. § 1988 (“In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney's fee.’’).
. Defendant suggested that Dr. Anderson’s fee should be limited to the $40 per day witness fee, without citation to statute. The Court presumes Defendant is referring to 28 U.S.C. § 1821 for such a limitation, which states:
A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
However, compensation of an expert witness is governed by the Federal Rules of Civil Procedure. Under the Rules, a party may depose any person who has been identified as an expert witness, and those experts shall "unless manifest injustice would result,” be compensated by the party seeking discovery at a "reasonable fee for time spent in responding to the discovery.” Fed, R. Civ. P. 26(b)(4)(A); 26(b)(4)(E).
. Plaintiff requests that this Court consider the "substance” of the request over the form. She cites case law where the Court allowed both taxable and nontaxable cost to be considered in the attorney’s fee award despite a pending appeal. Wirtz v. Kan. Farm Bureau Servs., 355 F.Supp.2d 1190, 1206 (D. Kan. 2005). This Court declines to take this approach because it does not follow the local rules and it is the Clerk who should consider the taxable costs in the first instance. Plaintiff appended a Form AO 133 filed with the clerk on January 10, 2017. Doc. 242-6. Plaintiff is directed to re-file these taxable costs in compliance with D. Kan. Local Rule 54.1.
. D. Kim. Rule 54.1(a)(1).
. Id. at 54.1(b)(1).
. Id. at 54.1(b)(3).
Reference
- Full Case Name
- Martha FOX v. PITTSBURG STATE UNIVERSITY
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- 33 cases
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- Published