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Prescott v. Rumford Hospital

United States District Court, D. Maine

June 17, 2016




         A trial was held in this case beginning on October 26, 2015, on Catherine Prescott's claims for unlawful discrimination, failure to accommodate, and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; the Maine Human Rights Act ("MHRA"), 5 M.R.S. § 4551 et seq.; and the Rehabilitation Act, 29 U.S.C. § 701 et seq. ECF No. 1. On October 29, the jury returned a verdict in Prescott's favor on all counts and awarded her $34, 285.00 in back pay and $1, 400.00 in compensatory damages. ECF No. 123.

         Prescott now seeks an award of attorney's fees in the amount of $154, 173.00, ECF No. 149, and costs in the amount of $2, 787.95, ECF No. 150. Rumford Hospital opposes both awards. ECF No. 151. For the reasons discussed below, Prescott's Motion for Award of Attorney's Fees is granted in part and her Bill of Costs is granted.


         The starting point in setting an attorney's fee award is determining the lodestar figure-that is, the number of hours reasonably expended to prosecute the lawsuit multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). The fee applicant bears the burden of producing materials that support the request, which should include "counsel's contemporaneous time and billing records, suitably detailed, and information [about] the law firm's standard billing rates." Hutchinson ex. rel. Julien v. Patrick, 636 F.3d 1, 13 (1st Cir. 2011) (citations omitted). The party opposing the fee award may submit countervailing evidence. Id. (citing Foley v. City of Lowell, 948 F.2d 10, 20-21 (1st Cir. 1991)). The court "will then calculate the time counsel spent on the case, subtract duplicative, unproductive, or excessive hours, and apply prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved."). Id. (quoting Gay Officers Action League, 247 F.3d at 295) (internal quotation marks omitted).

         After calculating the lodestar fee, "the trial court has the discretion to adjust the lodestar itself upwards or downwards based on several different factors, including the results obtained, and the time and labor required for the efficacious handling of the matter." De Jesús Nazario v. Morris-Rodríguez, 554 F.3d 196, 207 (1st Cir. 2009) (citing Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008)); see also, Hensley, 461 U.S. at 436-37.


         A. Hourly Rate

         Plaintiff's counsel are Chad Hansen and Peter Thompson, both members of the Maine Employee Rights Group, a law firm in Portland, Maine. They have represented Prescott in this case since February 2013. Attorney Hansen has twelve years of experience representing employees in employment discrimination cases, and his hourly rate throughout the case was $300. ECF No. 149 at 9; ECF No. 149-1 at 1. Attorney Thompson has twenty-two years of experience representing employees in employment discrimination cases, and his hourly rate throughout the case was $350 per hour. ECF No. 149 at 9; ECF No. 149-6 at 1. The reasonableness of Attorney Hansen's and Attorney Thompson's hourly rates is supported by the affidavits of Maria Fox, an attorney in the Portland, Maine, law firm Mittel Asen, LLC (ECF No. 149-3); John Gause, a partner in the Bangor, Maine, law firm Eastern Maine Law (ECF No. 149-4); and Jeffrey Neil Young, a partner in the Augusta, Maine, law firm Johnson, Webbert, & Young (ECF No. 149-5).

         Rumford Hospital objects to Hansen's and Thompson's hourly rates for two reasons. First, relying upon Sullivan v. City of Augusta, 625 F.Supp.2d 28, 43 (D. Me. 2009), the Hospital argues that Prescott provided insufficient evidence to substantiate that Hansen's and Thompson's $300 and $350 rates, respectively, were actually in effect over the entire course of the litigation, when the work was performed. ECF No. 151 at 7. Yet Prescott has submitted precisely such evidence in the form of Hansen's and Thompson's contemporaneous time records, which reflect that Hansen billed at an hourly rate of $300 when he began work on the case in February 2013 and that Thompson billed at an hourly rate of $350 when he began working on the case in March 2014. See ECF No. 149-2 at 1, 5.

         Second, Rumford Hospital argues that Hansen's and Thompson's rates are higher than what Maine-based counsel typically charge to individual plaintiffs on an hourly basis. ECF No. 151 at 8. The sole citation in support of this argument is the affidavit of Michael Poulin, one of Rumford Hospital's attorneys and a partner in the Auburn, Maine, law firm Skelton, Taintor & Abbott. Id. at 8 (citing ECF No. 151-1). In his affidavit, Attorney Poulin states that his hourly rate in this litigation ranged from $265 to $275; that the hourly rate of defense counsel Rebecca Webber, also a partner at Skelton, Taintor & Abbott, ranged from $240 to $250; and that the hourly rate of defense counsel Amy Dieterich, an associate at the same firm, was $210. ECF No. 151-1 at 1-2.

         Although relevant, I am not persuaded that, hourly rates charged by the Hospital's attorneys should control the rate of compensation used to determine the plaintiff's attorney's fees. Attorney Poulin's affidavit does not address what Maine-based counsel typically charge to employee-plaintiffs, as opposed to institutional employer defendants such as Rumford Hospital. The Poulin affidavit also does not explain the extent to which the hourly rate charged to Rumford Hospital may reflect by an ongoing professional relationship between his law firm and the Hospital.

         This court has concluded in the recent past that a $300 hourly rate for experienced, Maine-based counsel such as Attorney Hansen is reasonable, and I conclude that $300 per hour is reasonable and appropriate in this case. IMS Health Corp. v. Schneider, 901 F.Supp.2d 172, 195 (D. Me. 2012). I also conclude that a higher hourly rate of $350 for Attorney Thompson is reasonable, given his greater experience litigating employment law cases.

         Prescott also seeks to collect attorney's fees for the Maine Employee Rights Group's associate attorney, Allison Gray, whose hourly rate is $175; its investigator, Barbara Lelli, whose hourly rate is $165 per hour; and its paralegal, Patricia Rutherford, whose hourly rate is $125. ECF No. 149 at 10. Rumford Hospital does not object to Attorney Gray's rate. See ECF No. 151. It does, however, argue that Rutherford's rate is "substantially in excess of what Maine law firms charge their clients for paralegal services[, ]" relying again on Attorney Poulin's affidavit for support. ECF No. 151 at 8 (citing ECF No. 151-1 at 2). The Hospital also objects to Lelli's rate, arguing that the work she performed, as described in the time entries for her work, was more in the nature of paralegal work. Id. at 8-9 (citing ECF No. 149-2 at 6, 10, 13, 14, 15, 18, 20).

         This court has accepted paralegal rates ranging from $90 to $112 as the prevailing market rate for experienced paralegals in specialized fields such as intellectual property. Pearson v. Astrue, 2012 WL 837243, at *1 (D. Me. Mar. 12, 2012) (discussing prior cases accepting prevailing market rates for paralegals in copyright and patent/trademark cases). Although Rutherford's affidavit states that she has 22 years of experience focused on employment law, ECF No. 149-8, Prescott offered no record evidence suggesting that the market rate for paralegal services in employment cases is equivalent to that for intellectual property law, see ECF No. 149. Even if she had offered such evidence, $125 is more than the upper range previously identified by this court. See Pearson, 2012 WL 837243, at *1. I conclude, therefore, that a downward adjustment in Rutherford's hourly rate is warranted. In Desena v. Lepage, 847 F.Supp.2d 207, 213-14 (D. Me. 2012), a three-judge panel of this court accepted a $95 hourly rate for paralegal work and also made note of a "$100 prevailing rate for experienced specialized paralegals[.]" Based upon this relatively recent precedent, I set Rutherford's hourly rate at $105, which is the specialized paralegal rate identified in Desena, adjusted for inflation. See (reflecting that $100 in 2012 is worth $104.21 in 2016) (lasted visited on June 9, 2016). This results in a reduction of $260 from Prescott's fee award.

         I also conclude that Lelli's work as described in plaintiff's counsel's contemporaneous time records resembles paralegal work more so than any specialized work falling under the rubric of "investigator." Prescott has submitted no evidence which explains how Lelli's work in this case was more specialized and therefore compensable at a higher rate than paralegal work. Therefore, I also set Lelli's hourly rate at $105. This results in a reduction of $1, 949.50 from Prescott's fee award.

         B. ...

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