United States District Court, D. Maine
DECISION AND ORDER ON MOTION FOR ATTORNEY
C. Nivison U.S. Magistrate Judge
three-day trial, a jury determined that in terminating
Plaintiff's employment, Defendant discriminated against
Plaintiff because of a disability, and that Defendant
interfered with Plaintiff's right to take family medical
leave. (Jury Verdict, ECF No. 102.) The jury declined to
award Plaintiff damages on the discrimination claim, but
awarded Plaintiff $15, 000 in back pay on her family medical
leave claim. Plaintiff had also alleged that in its decision
to terminate her employment, Defendant discriminated against
her due to her pregnancy and retaliated against her because
she exercised her right to take family medical leave. The
jury returned a verdict in favor of Defendant on those
claims. On Plaintiff's post-trial motion for supplemental
relief, the Court awarded nominal damages on the disability
claim, liquidated damages on the family medical leave
interference claim, and certain injunctive relief.
matter is before the Court on Plaintiff's motion for an
award of attorney fees, through which motion Plaintiff
requests a fee award of $150, 272.50 and costs in the amount
of $16, 514.16. (Plaintiff's Reply at 7, ECF No. 119.)
Defendant acknowledges that Plaintiff is entitled to an award
of attorney fees, but contends that Plaintiff should not
recover the amount requested because Plaintiff did not
prevail on all of her claims, including her claim for
non-economic compensatory damages. The Court grants in part
Plaintiff prevailed on her claims under the Family Medical
Leave Act and the Maine Family Medical Requirements, she is
entitled to recover a reasonable attorney fee and other
costs. 29 U.S.C. §2617(a)(3); 26 M.R.S. § 848(3).
Furthermore, provided she qualifies as a “prevailing
party, ” the Rehabilitation Act, 29 U.S.C. §
794a(b), and the Americans with Disabilities Act, 42 U.S.C.
§ 12205, authorize courts to award a reasonable attorney
fee, litigation expenses, and costs. 42 U.S.C. § 12205;
29 U.S.C. 794a(b). “When used in a federal fee-shifting
statute, ‘the term “prevailing party” [is]
a legal term of art.'” Hutchinson ex rel.
Julien v. Patrick, 636 F.3d 1, 8 (1st Cir. 2011)
(quoting Buckhannon Bd. & Care Home, Inc. v. W.Va.
Dep't of Health & Human Res., 532 U.S. 598, 603
(2001)). “The concepts that shape the term apply
broadly to the entire universe of federal fee-shifting
statutes.” Id. “To qualify as a
prevailing party, a litigant must show that a material
alteration of the parties' legal relationship has taken
place as a result of the litigation.” Id. By
receiving a judgment in her favor on the merits, Plaintiff
qualifies as a prevailing party. Id. at 9.
presumptively reasonable fee award is measured by the
“lodestar, ” which is computed by multiplying the
number of hours reasonably expended on the litigation by a
reasonable rate. Blum v. Stenson, 465 U.S. 886, 897
(1984). The burden is on a plaintiff to provide evidence of
the hours expended and the “prevailing rate in the
community for comparably qualified attorneys.”
United States v. Metro. Dist. Comm'n, 847 F.2d
12, 19 (1st Cir. 1988). To the extent the hours expended
appear excessive, a court may “reduce the award
accordingly.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983).
figure derived from the lodestar calculation may be adjusted
up or down to reflect [the] [p]laintiff's degree of
success in the litigation.” Chalout v. Interstate
Brands Corp., 296 F.Supp.2d 2, 4 (D. Me. 2004) (citing
Hensley, 461 U.S. at 434). For example, where a
plaintiff prevails on some but not all claims, and the lost
claims involve “distinctly different claims for relief
that are based on different facts and legal theories, ”
no fee may be awarded for time that is attributable to such
claims. Hensley, 461 U.S. at 434. See also
United States v. One Star Class Sloop Sailboat, 546 F.3d
26, 38 - 39 (1st Cir. 2008); Cushing v. McKee, 853
F.Supp.2d 163, 170 (D. Me. 2012).
the Court notes that “[t]he essential goal in shifting
fees (to either party) is to do rough justice, not to achieve
auditing perfection.” Cushing, 853 F.Supp.2d
at 170 (quoting Fox v. Vice, 563 U.S. 826, 838
(2011) (“[T]rial courts may take into account their
overall sense of a suit, and may use estimates in calculating
and allocating an attorney's time.”)).
Prevailing market rates
has requested a rate of $350 per hour for time expended by
her counsel. Counsel's affidavit reflects that counsel
began billing at the rate of $350 per hour in August 2016,
approximately 17 months after the commencement of this
matter. At the commencement of this matter, Plaintiff's
counsel billed at the rate of $300 per hour.
maintains that the Court should use the rate of $300 per hour
for counsel's time reasonably expended prior to August
2016, and $350 per hour for time reasonably expended
thereafter. Although an award measured by a current hourly
rate could be granted to account for the costs associated
with the delay in payment, Missouri v. Jenkins, 491
U.S. 274, 283 - 84 (1989), the Court is not persuaded that
payment at the current rate for all of counsel's time is
warranted in this case. Defendant's suggested approach is
reasonable insofar as it would compensate counsel at the rate
counsel billed at the time the services were rendered.
also objects to the inclusion of paralegal time in any award.
In the related area of fee awards provided under the Equal
Access to Justice Act, 28 U.S.C. § 2412, the Supreme
Court has held that a prevailing party may recover paralegal
fees at prevailing market rates. Richlin Sec. Serv. Co.
v. Chertoff, 553 U.S. 571, 590 (2008). Likewise, the
Supreme Court has authorized awards for paralegal and law
clerk fees in the context of analogous civil rights
fee-shifting awards under 42 U.S.C. § 1988.
Jenkins, 491 U.S. at 284 - 85. Similar reasoning
supports Plaintiff's request for paralegal fees in this
case. The rate of $105 per hour requested for paralegal time
in this case is reasonable.
also contends Plaintiff's request for the full rate for
counsel's time expended in case-related travel is
unreasonable. While “[t]ravel is often a necessary
incident of litigation” and “may be reimbursed in
a fee award, ” travel time “ordinarily is
calculated at an hourly rate lower than that which applies to
the attorney's substantive labors.” Hutchinson
v. Patrick, 636 F.3d 1, 29 (1st Cir. 2011). This
Court's practice is to allow recovery of fees for travel
at one-half counsel's rate. IMS Health Corp. v.
Schneider, 901 F.Supp.2d 172, 193 (D. Me. 2012);
Cushing v. McKee, 853 ...