Whitcomb v. Dartmouth CV-92-503-B 05/04/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Catherine R. Whitcomb

v. C .A . No. 92-503-B

Trustees of Dartmouth College

O R D E R

Catherine Whitcomb was awarded $60,000 after obtaining

favorable jury verdicts against Dartmouth College on her Title

VII retaliation claim and an overlapping state law wrongful

discharge claim. She now seeks to recover an additional

$93,652.50 in attorney's fees and $3,905.74 in costs as a

prevailing party in that litigation.

DISCUSSION

As the prevailing party, Whitcomb is entitled to recover

reasonable attorneys' fees and costs associated with the

successful prosecution of her Title VII claim. 42 U.S.C.A. §

2000e-5(k). The beginning point in calculating a fee award is t

determine the "lodestar" amount--the reasonable number of hours

spent working on the case multiplied by a reasonable hourly rate

Phetosomphone v. Allison Reed Group, Inc.,

(1st Cir. 1993). The reasonableness of both the requested hours and

the hourly billing rate are subject to careful scrutiny by the

court. Grendel's Den, Inc. v. Larkin,

(1st

Cir. 1984). The number of hours and the billing rate may be

adjusted in the discretion of the court to reflect a more

reasonable approximation of time spent or the market rate for

attorneys of like experience. Deary v. City of Gloucester,

(1st Cir. 1993). Once the lodestar amount is

calculated, it is presumed to be a reasonable fee, although the

court may further adjust the amount to reflect particular

circumstances such as the degree of success of the prevailing

party. Lipsett v. Blanco,

(1st Cir. 1992);

Pearson v. Fair,

(1st Cir. 1992). The party

seeking an award, the plaintiff here, bears the burden of

documenting the appropriate number of hours and billing rates.

Phetosomphone,

.

In the present case, Dartmouth does not dispute Whitcomb's

right to recover attorneys' fees, nor does it challenge the

billing rates charged by Whitcomb's attorneys.1 However, it

1 Whitcomb was represented by the law firm of Clauson & Smith of Hanover, New Hampshire. Attorneys, K. William Clauson, Bradford T. Atwood, and Kathleen London, and paralegals, Roberta

2 argues that certain items in her request should be disallowed and

that the adjusted fee request should be reduced by an additional

fifty (50) percent. Iaddress these contentions in turn.

A. Reasonableness ofHours Claimed

Dartmouth objects to Whitcomb's application for attorneys'

fees on the groundsthat some of the fees for particular work

either are not recoverable or were not reasonable. In

particular, Dartmouth objects to fees for the following

activities: (1) time spent preparing billing records and the fee

application; (2) legal work for plaintiff that was unrelated to

the litigation; (3) time spent on an unsuccessful effort to

present expert witnesses and to obtain late discovery; (4) time

spent pursuing legally unavailable remedies; and (5) unnecessary

time spent by an investigator.

1. Time spent preparing bills and the fee application.

Dartmouth initially argued that Whitcomb was not entitled to

any fees incurred by her attorneys in preparing the fee

DeMasellis, Carol Sloboda, and Jonathan E. Putnam, spent time on Whitcomb's case. I find that their claimed billing rates are generally reasonable. In some instances, however, I find that the work described did not warrant a full fee, as is more fully explained in the next section.

3 application. In response, Whitcomb pointed to authority allowing

a prevailing party to recover such fees but candidly acknowledged

that time spent in preparing a fee application "may fairly be

compensated at a reduced rate." Brewster v. Dukakis,

(1st Cir. 1993). She then submitted a supplemental

application for attorneys' fees incurred since October 11, 1994.

Dartmouth objected to the supplemental application on the

additional ground that it sought 16.5 hours in compensation for

work performed in overcoming defendant's argument that the fee

application should be denied because it was filed after the time

allowed by the Federal Rules of Civil Procedure.

a. Time spent preparing fee application.

Whitcomb is entitled to recover attorneys' fees for time

spent on fee-related work. Brewster,

. When the

work involved is merely documenting who did what work, however,

compensation may be awarded at a reduced rate.

After a

careful review of the time records, I determine that the

following entries involved work by an attorney to document

billing information that I will compensate at a reduced rate:

(1) 10/05/94, Bradford Atwood, "Review timesheets and expense

invoices, preparation of Bill of Costs;" (2) 10/06/94, Bradford

Atwood, "Preparation of Attorney Fee Application"; (3) 10/07/94,

4 Bradford Atwood, "Preparation of Application for Attorney Fees

and Supporting Documentation; preparation of Bill of Costs."2

In the first entry, 10/05/94, Atwood also spent time doing

legal research related to the fee application. The 10/05/94

entry charges for 3.50 hours billed at $90.00 per hour. Although

Whitcomb would be entitled to the full hourly rate for the legal

research component of the entry, she has not specified how much

of the 3.50 hours was devoted to legal research. Similarly, the

second entry, 10/06/94, indicates that Atwood spent part of the

time in a telephone call concerning the case. However, he did

not identify the portion of the entry that was attributable to

the telephone call. Conseguently, I reduce the applicable

billing rate for the entire time allocated to each of those

entries. See, e.g., Tennessee Gas Pipeline Co. v. 104 Acres of

Land,

, 634 (1st Cir. 1994); Domegan v. Ponte,

(1st Cir. 1992) (vacated on other grounds and

remanded,

(1993)); Phetosomphone,

;

Woitkowski v. Cade,

(1st Cir. 1984) .

2 Of the remaining entries, two were for paralegal time spent in preparing bills and one, preparation of Catherine Whitcomb's affidavit on 7/21/94, was not apparently related to the preparation of the fee application. I find those entries were properly included in the fee application.

5 I find that a reasonable rate for documenting work to review

time and billing records is $45.00 per hour as charged by the

paralegal in preparing the final bill. Therefore, the allowable

amount for the 10/05/94 entry is $157.50; for the 10/06/94 entry

is $101.25; and for the 10/07/94 entry is $123.75. The reduction

in the billing rate for those three entries reguires that the

total amount of reguested fees be reduced by $382.50.

b. Time spent preventing dismissal of application.

Dartmouth also challenges a portion of the time claimed by

Whitcomb in her supplemental fee application on the grounds that

the time spent preventing dismissal of the initial application

was due to the attorneys' untimely filing. Disallowance of

unnecessary fees is within the discretion of the court. See

Grendel's Den,

. I agree that fees charged by the

attorneys to save the fee application would not have been

necessary had Whitcomb's attorneys complied with the time

limitation specified in the applicable rule. After reviewing the

billing entries in the supplemental application, I find that the

entries beginning with the first entry for 10/20/94, "Review

Dartmouth's Objection to Attorney Fees Application," through the

entry for 11/27/94, "Filing work on Attorneys fees. Supplemental

6 Memorandum and Enlargement of Time," are related at least in part

to defending the untimeliness of the application and therefore

the total of those entries, $1427.50, is denied and is deducted

from the total reguest.

2. Legal work unrelated to litigation.

Dartmouth argues that time Whitcomb's attorneys spent

demanding payment from plaintiff, helping her obtain unemployment

compensation, and inguiring about her insurance records are not

compensable as attorneys' fees in this case. Whitcomb agrees

that the time listed for demands for payment totalling $135.00

should be disallowed. She contends, however, that the work

related to unemployment benefits and insurance was part of the

litigation.

I agree with both parties that the time billed for demands

for payment should be disallowed. I also agree with Dartmouth

that the time spent by the attorneys discussing and researching

plaintiff's eligibility for unemployment compensation benefits,

entries for 05/08/92 and 06/09/92, were not necessary to the

litigation even though the need for benefits may have been the

result of Whitcomb's employment dispute with Dartmouth. I find

that the attorney's telephone discussion with Whitcomb on

11/22/93, however, was occasioned by Dartmouth's reguest for

7 insurance information, as Whitcomb explains. Therefore, the

entry for $22.50 is related to the litigation and is properly

part of the award. A total of $450.00 is denied as work

unrelated to the litigation.

3. Fees relating to plaintiff's efforts to present an expert witness and to obtain late discovery.

Both parties agree that fees billed for work to find and

present expert witnesses and to obtain further discovery after

the applicable deadlines should not be included in the award.

They differ as to which fees fall within the excluded categories.

Whitcomb no longer reguests fees for certain entries related to

expert witnesses, totalling $248.75, and other entries for work

on discovery, totalling $855.00, and those amounts are deducted

from the total reguest. I consider the parties' remaining

arguments as to fees pertaining to the expert witnesses and late

discovery as follows.

a. Expert witnesses.

Whitcomb engaged in an unsuccessful effort to present

various expert witnesses after the extended deadline for

disclosing experts had passed. Dartmouth lists billing entries

totalling $5,925.00 of fees for time it alleges was spent on the

untimely effort to procure expert testimony. In response. Whitcomb notes that two listed entries involved work with

Dartmouth's Affirmative Action Officer, not Whitcomb's expert,

and to obtain information requested by Dartmouth. I agree that

the entries for 09/22/93 and 10/07/93, which involved Dr. Alvin

Richard, should be allowed. I also agree that the fee entered on

11/12/93 regarding obtaining information for both an expert and

Dartmouth's counsel should be allowed.

The remaining entries contested by Dartmouth involve work

with Judith Schultz, an expert on educational employment issues.

Whitcomb argues that most of the time spent with Schultz, who was

belatedly and unsuccessfully offered as an expert by Whitcomb,

was used to develop the damages aspect of her case. A review of

the billing records shows that many of the entries involving

Schultz explicitly involved discovery and designated Schultz as

an expert witness. Although it is likely that at least some of

the entries involving work with Schultz were necessary to the

litigation, Whitcomb has neither pointed to designations in the

billing entries themselves nor provided additional explanations

for specific entries to separate the time used to develop Schultz

as a witness from the time spent developing damages information.

Instead, Whitcomb urges me to either allow the entries in whole

because of Schultz's significant contribution to the case or to only partially discount the mixed entries. Whitcomb, however,

bears the burden of presenting and documenting the hours

appropriately spent on the litigation and undesignated mixed

entries may be denied in whole. See Tennessee Gas Pipeline, 32

F.3d at 634; Phetosomphone,

; Woi tkowski, 72 5 F .2d

at 130. A review of the billing records reveals an entry on

05/16/94 involving Schultz that is devoted exclusively to

damages, and that amount, $127.50, is allowable. For the

remainder of the entries related to work with Schultz, I decline

to engage in speculation concerning what part of the billing

records might be allowable, and I deny all of the contested

entries less the three discussed above. As a result, the amount

listed by Dartmouth as work related to developing Schultz as an

expert witness less the allowable entries which eguals $5,510.00

will be deducted from the allowable fees,

b. Late discovery.

Whitcomb argues that four entries included in Dartmouth's

list should be allowed because they include time for answering

Dartmouth's discovery reguests. Whitcomb suggests that the entry

listed by Dartmouth for 05/15/93 should be the entry for 5/13/93

indicating a fee of $255.00, which reflects work performed in

complying with Dartmouth's discovery reguests. I accept

10 Whitcomb's explanation and allow this charge. The remaining

three entries, however, involve work on a variety of matters.

Once again, if the time spent on Dartmouth's discovery were

separated from the time spent on unproductive late discovery

attempts, I would award fees for that work. Because the work is

included in an undifferentiated entry, the fee is not allowable.

The amount to be deducted for work on late discovery is

$1,510.00.

4. Time spent pursuing legally unavailable remedies.

Dartmouth's challenge to the time spent on filing Whitcomb's

claim with the New Hampshire Human Rights Commission is denied.

5. Unnecessary time used by the paralegal/investigator.

Dartmouth argues that the time billed by John Putnam, a

paralegal and investigator for Clauson & Smith, is excessive and

unnecessary. Instead of challenging particular entries,

Dartmouth cites a few examples of contested entries and asks that

I impose a one-third reduction in Putnam's fees. Whitcomb

responds that Putnam's time for finding and interviewing

potential witnesses billed at $35.00 per hour was both essential

to the litigation and a great savings in fees.

After reviewing Putnam's billing entries, I find that some

of his time may be excessive, as Dartmouth contends. For

11 instance, I agree with Dartmouth that Putnam's time spent driving

from Hanover to the Manchester Airport to Concord and back to

pickup and return a witness, without further explanation of

discussion of the case during the ride, was unnecessary to the

litigation. Although the entry also includes a notation of a

meeting with one of the attorneys during the day, no time is

specified for that meeting. I deduct the charges for that day,

$315.00, from the total fees. As to the remaining charges,

however, the notations show that he was engaged in locating and

interviewing witnesses, writing reports, and reviewing witness

information in preparation for trial. Although Putnam spent a

great deal of time on this investigation, such work, even with

respect to witnesses who were not called at trial, was necessary

to prepare the case for trial and would otherwise have been done

by other paralegals or an attorney, all of whom billed at higher

rates. For that reason, I will allow the remainder of Putnam's

billing entries, deducting the $315.00 as previously noted.

6. The lodestar amount.

Having carefully reviewed the billing entries and considered

Dartmouth's challenges, I find that after deducting necessary

amounts explained above, the reasonable hours spent on the

litigation multiplied by the reasonable hourly rates, as

12 calculated by the parties, provides a lodestar amount of

$84,057.50.

B. Requested Fifty Percent Reduction

Dartmouth argues that the total amount of attorneys' fees

should be cut in half due to Whitcomb's relative lack of success

in the litigation, her disproportionately small recovery and her

failure to engage in meaningful settlement negotiations. I

resolve these claims as follows.

1. Degree of success.

Dartmouth notes that Whitcomb began the litigation with

four causes of action, but prevailed on only two. As a result,

Dartmouth argues, Whitcomb's attorneys spent significant amounts

of time pursuing claims on which Dartmouth ultimately prevailed.

For that reason, Dartmouth asks that the attorneys' fees be

substantially reduced.

A reduced award of attorneys' fees may be appropriate if the

plaintiff's victory is limited in comparison to the scope of the

litigation as a whole.3 Lewis v. Kendrick,

, 956

3 It may also be necessary in certain circumstances to discount an attorney's fee award under federal law for time spent in proving a successful state law claim for which there is no right to attorneys' fees. See Phetosomphone,

.

13 (1st Cir. 1991) (quoting Hensley v. Eckerhart,

(1983) (on rehearing). The extent of success, however, is

measured by taking a qualitative, not quantitative, view of

plaintiff's claims and result. Aubin v. Fudala,

(1st Cir. 1986). In this case, Whitcomb obtained favorable

jury verdicts on her Title VII claim for retaliation and her

state law wrongful discharge claim. Her state claim for

intentional infliction of emotional distress was dismissed before

trial and the jury found in Dartmouth's favor on Whitcomb's Title

VII discriminatory demotion claim. Nevertheless, the claims on

which Whitcomb was successful were the core of her case. In

addition, her claims were sufficiently interrelated that it is

unlikely that her attorneys spent any significant time on the

unsuccessful claims that was not necessary for the prosecution of

the successful ones. C f . Pearson,

(holding that

award should be reduced where plaintiff's counsel spent a

substantial number of hours on factual discovery and legal

Although in this case Whitcomb prevailed on both her Title VII retaliation claim and her state law wrongful discharge claim, it is unnecessary to attempt to separate the time spent solely on the wrongful discharge claim from the time spent on the Title VII claim because the claims overlap and Dartmouth does not argue that the fee award should be reduced for this reason. Compare Refuse & Envtl. Svs., Inc. v. Industrial Serv. of Am., Inc., 932 F .2d 37, 44-55 (1st Cir. 1991).

14 research devoted to losing issues).

Thus, I find no reason to reduce Whitcomb's award to reflect

a lack of success on the merits of her claims.

2. Proportionality.

Dartmouth also argues that Whitcomb's fee award should be

reduced substantially because she recovered only $60,000 in

damages. In evaluating Dartmouth's argument, I am mindful that

"[w]hile the amount of damages received in a civil rights suit

does not constitute a dispositive criterion, or even a ceiling on

an ensuing fee award, it is nevertheless relevant to the

calculation of a reasonable fee." Foley v. City of Lowell,

(1st Cir. 1991) (citations omitted); see also, City

of Riverside v. Rivera,

(1986) (plurality op.).

In the present case, however, I cannot say that the plaintiff

built a litigious mountain out of a legal molehill. Instead,

Whitcomb received a substantial damage award for a serious

violation of federal law. Compare Farrar v. Hobby,

, 578-79 (1992). Nor can I say that her lawyers expended an

unjustifiably large amount of time in prosecuting her claim.

Thus, I decline to exercise my discretion to reduce her fee award

simply because it exceeds the amount of her damage award.

15 3. Settlement efforts.

Each party accuses the other of intransigence in settlement.

Dartmouth argues that Whitcomb's million-dollar demand reguires

cutting Whitcomb's fee award in half, and Whitcomb responds that

Dartmouth's "Stalingrad defense," including its small settlement

offer, increased the time spent by Whitcomb's attorneys. Because

Whitcomb achieved a jury verdict and damage award substantially

in excess of Dartmouth's settlement offer, I find no cause to

reduce the award of attorneys' fees based on the parties'

unsuccessful settlement negotiations.

In summary, I find that the hourly billing rates and the

time billed in Whitcomb's application for attorneys' fees, as

modified in this Order, are reasonable.

C. Costs and Expenses

Whitcomb reguests a total of $3,905.74 in costs and expenses

related to the litigation. After reviewing the items listed, I

find that the reguest is reasonable and falls within the

statutory guidelines of

. See West Virginia

University Hosps. v. Casey,

(1991) (Stevens, J.

dissenting and explaining the broad view given to costs in

context of fee-shifting). Further, although Dartmouth reguests,

16 without explanation, that each party bear its own costs, it has

not contested either the amount or the subject matter of the

costs requested. Because costs are to be awarded to the

prevailing party as a matter of course. Federal Rule of Civil

Procedure 5 4 (d), I grant costs as requested.

CONCLUSION

For the foregoing reasons Whitcomb's application for

attorneys' fees (document 77) and the supplemental application

(document 78) are granted in part and denied in part. Whitcomb

is entitled to an award of attorneys' fees in the amount

requested less the deductions made in this Order, yielding a

total amount of $84,057.50 in attorneys' fees. In addition,

Whitcomb is awarded $3,905.74 in costs.

SO ORDERED.

Paul Barbadoro United States District Judge

May 4, 1995

cc: Bradford Atwood, Esq. Edward Shumaker, III, Esq.

17