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Dorr v. Woodlands Senior Living Or Brewer LLC

United States District Court, D. Maine

September 29, 2017



          John C. Nivison U.S. Magistrate Judge

         After a 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.

         The 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's motion.


         Because 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.

         The 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).

         “The 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).

         Finally, 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.”)).

         A. Lodestar Assessment

         1. Prevailing market rates

         Plaintiff 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.

         Defendant 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.

         Defendant 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.

         Defendant 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 ...

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