United States District Court, D. New Mexico
December 28, 2016
JUANITA GARCIA, Plaintiff,
THE CITY OF FARMINGTON, Defendant.
MEMORANDUM OPINION AND ORDER
August 22, 2016, Plaintiff Juanita Garcia filed a Motion for
Costs and Application for Attorney's Fees and Expenses
(ECF No. 173). The Court, having considered the motion,
briefs, evidence, applicable law, and otherwise being fully
advised, concludes that the motion should be granted in part
and denied in part. The Court will enter an award of
attorney's fees, expenses, and costs, but will reduce the
requested amount, as described herein.
9, 2013, Plaintiff filed a First Amended Complaint with six
causes of action. First Am. Compl., ECF No. 35. On March 13,
2015, the Court granted Defendant summary judgment on
Plaintiff's retaliation claims (Counts III and IV) and
prima facie tort (Count V). Mem. Op. and Order, ECF No. 88.
The Court held a five-day bench trial on February 22-26,
2016, on Plaintiff's three remaining claims. After trial,
the Court entered Findings of Fact and Conclusions of Law, in
which the Court found for Plaintiff and against Defendant on
Ms. Garcia's hostile work environment claim (Count II)
and awarded her $20, 000.00 in compensatory damages. Findings
of Fact and Conclusions of Law 33-39, ECF No. 169. The Court
also concluded, “Ms. Garcia is entitled to her
reasonable attorney's fees and costs on her Title VII
hostile work environment claim. See 42 U.S.C. §
2000e-5(k).” Id. at 39. The Court, however,
found for Defendant and against Plaintiff on Ms. Garcia's
claims for failure to promote (Count I), breach of the
settlement agreement (Count VI). Id. 29-33, 39-41.
court may award a prevailing party in a Title VII proceeding
“a reasonable attorney's fee (including expert
fees) as part of the costs.” 42 U.S.C. §
2000e-5(k). Determining a reasonable award of attorney's
fees is a two-step process: first, the court must determine
whether an applicant is a prevailing party entitled to
reimbursement of her fees; and second, the court must
determine what fee is reasonable. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). “[A]
plaintiff ‘prevails' ‘when actual relief on
the merits of his claim materially alters the legal
relationship between the parties by modifying the
defendant's behavior in a way that directly benefits the
plaintiff.'” Browder v. City of Moab, 427
F.3d 717, 722 (10th Cir. 2005) (quoting Farrar v.
Hobby, 506 U.S. 103, 109 (1992)). This Court already
determined that Plaintiff prevailed on her hostile work
environment claim and is entitled to a reasonable fee award.
order to arrive at a reasonable fee, courts generally use the
“lodestar amount, ” which is the “product
of the number of attorney hours ‘reasonably
expended' and a ‘reasonable hourly
rate.'” Robinson v. City of Edmond, 160
F.3d 1275, 1281 (10th Cir. 1998) (quoting Hensley,
461 U.S. at 433). The fee applicant has the burden of showing
entitlement to the award and documenting the appropriate
hours expended and hourly rates. Case v. Unified Sch.
Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998). The
district court may reduce the award where the documentation
of hours is inadequate. Hensley, 461 U.S. at 433.
Records must reveal all hours for which the attorney seeks
compensation and how the attorney allotted those hours to
specific tasks. Robinson, 160 F.3d at 1281. A court
may reduce the lodestar calculation where the prevailing part
achieved only partial success. See Hensley, 461 U.S.
at 435-37. “The district court may attempt to identify
specific hours that should be eliminated, or it may simply
reduce the award to account for the limited success.”
Id. at 436-37.
Hours Reasonably Expended by Plaintiff's Counsel
contends that Plaintiff did not differentiate in her
attorney's fees request which hours counsel spent on the
successful hostile work environment claim, as opposed to the
unsuccessful claims. Defendant urges the Court to deny
Plaintiff fees entirely. Despite that the Attorney Time
Records and Expenses are not as detailed regarding certain
line items as desired by the Court, in general they are
sufficient, when considered with the other evidence, to
determine that a significant portion of counsel's time
was reasonably expended in litigation of the hostile work
the Court finds that a percentage reduction of hours is fair
and reasonable in this case in light of Plaintiff's
failure to prevail on the failure to promote and breach of
settlement agreement claims, claims this Court found to be
without merit. Much of the evidentiary support for the
unsuccessful claims was distinct from the hostile work
environment claim, making them largely unrelated.
Plaintiffs' billing records, however, are not so detailed
to enable the Court to carve out with specificity work that
was only pertinent to the failure-to-promote and breach of
contract claims. The Court thus will use its discretion to
use a percentage reduction to account for Plaintiff's
limited success on the merits. See Browder, 427 F.3d
at 723 (explaining that court should only award prevailing
plaintiff attorney's fees for time spent prosecuting
successful claim and those related to it).
only met with success with one out of five initial claims,
and the result was not one of complete vindication for
Plaintiff. Nevertheless, the thrust of this case was the
hostile work environment claim and that claim was the more
significant issue in the case. For example, in
Plaintiff's Revised Proposed Findings of Fact and
Conclusions of Law (ECF No. 165), approximately 2/3 of
document relates to the hostile work environment claim, while
1/3 relates to the unsuccessful claims. The majority of
witnesses had testimony to offer on the hostile work
environment claim. The Court finds that this general pattern
bore out at trial and litigation as a whole. Moreover,
reviewing the time records, a sizeable portion of
counsel's time was devoted generally to litigation as a
whole. Accordingly, the Court finds that Plaintiff should
recover 67% of the total attorney's and paralegal fees to
account for her significant, yet limited success on the
the Court's deduction will account for Mr. Mozes's
own reduction, the Court finds that reasonable hours for Mr.
Mozes expended in litigating the hostile work environment
claim amounted to 378.82 hours (565.4 hours x 0.67). This
result is a reasonable, commensurate fee in light of the
relative success obtained.
Reasonable Hourly Rate
should establish an hourly rate award based on what the
evidence shows the market commands for lawyers of comparable
skill and experience practicing in the area of civil rights
or analogous litigation. See Case, 157 F.3d at
1255-56. Mr. Mozes seeks $325 per hour, although he
acknowledges that his standard hour fee rate is $300, but he
has considered raising that rate. Aff. of Michael Mozes
¶ 17, ECF No. 173-3. Mr. Mozes has been a practicing
attorney for over 20 years with considerable experience in
civil rights work. See Id. ¶¶ 5-9. He has
attached the Affidavit of Charles Archuleta, an experienced
civil rights attorney in the New Mexico legal community, who
avers that a $325 hourly rate is a fair and reasonable fee
for the services rendered by attorneys like Mr. Mozes in
Albuquerque. See Aff. of Charles Archuleta,
¶¶ 1-4, 9, ECF No. 173-6. The Court finds, based on
the evidence, that an hourly rate of $300, the amount Mr.
Mozes has been charging his clients, is reasonable for an
attorney with similar experience and skill in this market
area. See Case, 157 F.3d at 1257 (explaining reasons
why plaintiff's counsel in civil rights may be paid more
than counsel representing governmental entity); Calderon
v. Herrera et al., No. Civ. 2011-0482 WJ/GBW, at 2
(D.N.M. June 20, 2012) (awarding $300 hourly rate for
experienced attorney); Anchondo v. Anderson, Crenshaw,
& Associates, LLC, No. Civ. 08-0202 RB/WPL, at 3
(D.N.M. Oct. 19, 2010) (same).
Total Attorney's Fees
Court finds that the amount for attorney's fees is $133,
646.00 (378.82 hours x $300). Using the 7.3125 current GRT
for Albuquerque, as Mr. Mozes has done without objection, the
tax amounts to $9, 772.86. The total attorney's fee award
is thus $143, 418.86 for Mr. Mozes's work on the hostile
work environment claim.
Court will likewise adjust downward the paralegal hours,
awarding 67% of the requested hours (164 hours x 0.67 =
109.88 hours). See Aff. of Norma L. Mozes, ECF No.
173-5. The Court finds that the requested $85 hourly fee for
Norma Mozes's paralegal work is reasonable in the local
market area. See id.; Aff. of Michael Mozes ¶
19, ECF No. 173-3. Consequently, the Court will award $9,
339.80 in expenses for paralegal fees, plus GRT of $682.97,
for a total amount of $10, 022.77.
Costs and Other Expenses
Rule of Civil Procedure 54(d)(1) provides that a prevailing
party should be awarded costs. Fed.R.Civ.P. 54(d)(1). Rule 54
“makes the award of costs presumptive.”
Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190,
1204 (10th Cir. 2000). Under Section 1920 of Title 28 of the
United States Code, a court may tax costs on the fees of the
clerk, transcripts necessarily obtained for use in the case,
fees and disbursements for printing and witnesses, copy fees
where copies were necessarily obtained for use in the case,
and docket fees. 28 U.S.C. § 1920; Mitchell,
218 F.3d at 1204 (stating that § 1920 authorizes
recovery of costs for all depositions reasonably necessary to
litigation of the case). Where the prevailing party has only
been partially successful, a district court may exercise its
discretion under Rule 54(d)(1) and elect to apportion costs
among the parties or to reduce the size of the prevailing
party's award to reflect the partial success. See
Barber v. T.D. Williams, Inc., 254 F.3d 1223, 1234-35
(10th Cir. 2001).
expenses incurred in representing a client in a civil rights
case should be included in the attorney's fee award if
such expenses are usually billed in addition to the
attorney's hourly rate.” Case, 157 F.3d at
1257-58. Out-of-pocket expenses, such as travel, that are
incidental and necessary expenses incurred in providing
effective representation are authorized by 42 U.S.C. §
1988. Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir.
2000). The fee applicant must show that the requested
expenses are usually billed separately to a private client in
the market area and not normally absorbed as part of law firm
overhead. See Id. at 1297-98. Costs incurred by
third parties who are not attorneys in the case, such as
interpreters and stenographers, are governed by Section 1920.
Mozes avers that that all the costs and expenses set forth in
his cost bill and his time records and expenses were billed
out to his client and are the sort of expenses billed out to
all clients he represents. Aff. of Michael Mozes ¶ 20,
ECF No. 173-3. The Court has reviewed the cost bill and finds
that it contains both costs requested under Section 1920 and
expenses requested as those usually billed in addition to the
attorney's hourly rate. Despite Defendant's argument
that Plaintiff should have separately itemized costs and
expenses and her failure to do so should be fatal to her
recovery, the Court will consider the evidence. See Bee
v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990)
(“Although Bee listed [travel and accommodation]
expenses as costs rather than attorney's fees, his
categorization of the items is not dispositive of their
recoverability.”). The Court will now turn to the
specific objections made by Defendant.
argues that Plaintiff has not met her burden of showing the
$1, 840.70 copy fees were reasonable and necessary. This case
involved a large number of documents, and the Court's
review of the itemized costs bill indicates that the copies
requested at $0.20 per page were for necessary and reasonable
litigation expenses, for example, copies of the complaint,
answer, initial disclosures, motions, briefs, and exhibits.
The Court will award Plaintiff the costs and expenses of the
copies requested. See Case, 157 F.3d at 1259
(“We do not require that a civil rights attorney
justify each copy he or she makes, and we do not think that
the burden to justify copies is a high one.”).
legal research may not be a taxable cost under Section 1920,
legal research is a permitted expense and is normally
separately billed to a client. The Court will allow Plaintiff
to recover the reasonable amount of $690 in legal research
costs she requests. Case, 157 F.3d at 1257-58
(awarding legal research charges if they are reasonable,
itemized, and billed in addition to the hourly rate).
seeks $10 for faxes, which although not taxable costs, may be
permitted expenses to separately bill a client. See
Case, 157 F.3d at 1257-58 (awarding fax charges if they
are reasonable, itemized, and billed in addition to the
hourly rate). The costs account for two faxes, one from the
client and one to the magistrate judge assigned to the case,
each billed for $5.00. Plaintiff has not shown, however, the
cost per page or why the faxes were necessary for the
litigation, so the Court will deduct the fax expenses from
the cost bill.
expenses are out-of-pocket expenses not absorbed as part of
firm overhead and would normally be billed to a private
client in this area. The Court will award Plaintiff the costs
of counsel's mileage to and from and lodging in
Farmington for depositions, because the amounts were
reasonable and necessary for litigation purposes. Cf.
Bee, 910 F.2d at 690 (explaining that attorney travel
costs are type that might be included in attorney's bill
to private client). The Court, however, will not award
$240.00 for “4 per diems” on 9/23-26/13, because
Plaintiff did not show that these expenses were reasonable,
necessary, and items normally billed to a private client.
Similarly, the Court will exclude $60.00 for per diem
incurred and billed on November 4, 2013, for a total of
$300.00 excluded from the total expense calculation.
argues that the total of $4, 896.17 for deposition
transcripts and other expenses invoiced by the court reporter
who traveled to Farmington to transcribe depositions,
including the court reporter's mileage and hotel fees,
are not recoverable because Plaintiff did not provide
evidence that all those transcripts were relied upon by the
Court or used at trial. Additionally, Defendant contends
that, if the Court considers the unsupported request, the
Court should only allow recoverable costs for the depositions
of Ms. Garcia, Richard Miller, Bryson Ahkeah, and Donna
Brooks, which the Court either cited in its Memorandum
Opinion and Order on Defendant's Motion for Summary
Judgment, or were introduced at trial.
determining whether deposition costs were necessarily
obtained for use in the case, a court should authorize the
recovery of costs for all depositions reasonably necessary to
the litigation of the case based on the facts known to
the parties at the time the expenses were incurred.
See Mitchell, 218 F.3d at 1204-05. The Court finds
that the depositions taken were reasonable and necessary to
litigate the case based on the facts at the time. See
id.; In re Williams Securities Litigation-WCG
Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009)
(explaining that materials or services reasonably necessary
for use in case, even if they are not ultimately used to
dispose matter, may be recoverable as costs); D.N.M.L.R.Civ.
54.2(b)(2)(C) (explaining that deposition is reasonably
necessary to litigation when Court so determines).
costs associated with the taking of depositions, however, are
recoverable, because the statute covers costs for
“printed or electronically recorded transcripts.”
Cf. Harvey, 951 F.Supp.2d at 72 (“The statute
provides for costs for ‘printed or electronically
recorded transcripts, ' it does not provide for
all costs associated with the taking of depositions.”).
Plaintiff has not asserted that the court reporter's
mileage and hotel costs are covered by Section 1920. Nor has
Plaintiff provided specific evidence or argument that such
costs are the type of expenses generally billed by attorneys
separately to their clients, and thus, recoverable under
Section 1988. Accordingly, because Plaintiff failed to meet
her burden, the Court will exclude the costs of the court
reporter's mileage and hotel, as well as the sales tax
charged for those amounts, for a total reduction from the
total deposition costs of $632.59 ($90 mileage $501.21
hotel $41.38 7% sales tax). See Pl.'s Cost
Bill, ECF No. 173-1 at 8 of 20.
objects to $19.80 for a copy of the transcript of the
Court's October 13, 2015 status conference. Costs of
transcripts of a court proceeding is taxable as a cost when
requested by a party and authorized by the Court before
transcription. D.N.M.L.R.Civ. 54.2(a). The Court did not
pre-authorize the transcription, so the cost is not taxable
under Section 1920. Moreover, the status conference concerned
consolidation. Plaintiff has not shown that the expense for
this transcript was necessarily incurred in the litigation.
See Clerk's Minutes, ECF No. 97. The Court will
therefore reduce Plaintiff's Cost Bill by an additional
argues that fees for Emeric Blair, Karen Reyes, Bryan
Johnson, and Shannon Fitzgerald should not be awarded.
Defendant argues that Emeric Blair and Karen Reyes were
friends of Ms. Garcia's and need not have been
subpoenaed, but there is no evidence presented that they
would have shown up at trial absent a subpoena. With respect
to Mr. Johnson and Mr. Fitzgerald, Defendant asserts that
they were called exclusively to testify concerning the
failure to promote and breach of contract claims. As to Mr.
Fitzgerald, the Court finds that he offered testimony
relevant to Ms. Garcia's hostile work environment claim,
in addition to her other claims. See Trial Tr.
26:9-29:2, 33:12-41:23. Plaintiff did not refute that Mr.
Johnson testified at trial to matters only regarding her
promotion and breach of contract claims. See
Pl.'s Reply 9, ECF No. 176. Although at the time
Plaintiff took Mr. Johnson's deposition, there was reason
to believe he might have testimony as to all the claims, by
the time of trial, Plaintiff only offered testimony by Mr.
Johnson related to the failure to promote claim. The Court
will therefore deny Plaintiff fees for Mr. Johnson. The Court
will therefore reduce the cost bill by $290.00.
additionally argues that the witness fee amount is excessive.
Witness fees are recoverable under Section 1920, but limited
by 28 U.S.C. § 1821 to $40 per day plus mileage.
See 28 U.S.C. § 1821; Fed.R.Civ.P. 45(b)(1);
Harvey v. Mohammed, 951 F.Supp.2d 47, 67-68 (D.D.C.
2013). Defendant objects to the witness fee of $290.00 billed
for each of the five witnesses because Plaintiff has not
demonstrated why each is entitled to $250.00 for mileage.
Defendant notes that, even if Plaintiff used Farmington
generally, rather than the witnesses' specific
residences, the mileage from Farmington to the courthouse is
only $209.64. Because Defendant acknowledges that witness
mileage is recoverable by statute and appears to acknowledge
that the witnesses are from the Farmington area, this Court
will use $209.64 for the mileage for each witness and allow a
fee of $249.64 for each witness. The Court will therefore
further reduce the cost bill by $161.44 (4 witnesses x
($290.00 - $249.64)).
total deducted from witness fees will be $451.44 ($290.00
Mileage to and from Farmington - Subpoenas
contends that the request billed on February 10, 2016 for
“Mileage to and from Farmington - Subpoenas to Blair,
Reyes, Brooks, Baca and Ahkeah” does not explain who
incurred the mileage or why. Plaintiff did not respond to
this particular argument. The Court will reduce the cost bill
Parking and mileage
requests parking and mileage for a court status conference on
March 26, 2015 ($11.00); a court hearing on October 13, 2015
($11.00); and mileage and parking for four days during trial
($44.00). Pl.'s Cost Bill, ECF No. 173-1 at 4 of 20.
These costs are not covered by Section 1920, and the Court is
not convinced that these are the sort of reasonable and
necessary expenses usually billed to clients when hearings
and trial are in the same city as counsel's office.
Cf. Harvey, 951 F.Supp.2d at 73 (excluding mileage
and parking fees). The Court will therefore reduce the cost
bill by $66.00.
Witness lodging and meals
objects to $1, 017.40 for “Trial Witnesses'
lodging, ” $226.22 for “Trial Witnesses'
mil[e]age, ” and $185.69 for “Trial
Witnesses' Meals.” Plaintiff did not specifically
address this argument and thus has not met her burden of
showing that lodging and meal costs for witnesses are
recoverable as expenses usually charged separately in the
area by attorneys. Neither is this Court convinced that such
costs are covered by Section 1920, and thus will be excluded.
See Harvey, 951 F.Supp.2d at 71 (“Lodging
costs for the parties, witnesses, and consultants are neither
the sort of expense typically included in attorney's
fees, nor do they fall under the definition of
‘costs.'”). The Court will reduce the cost
bill by an additional $1, 429.31.
also objects to expenses for “Trial Folder-Pleadings
file” ($12.00), “116 Bates Stamp-Discovery”
($12.60); “Doc. 42 Def. First Set of Supp. Answers
($3.45); “10 Trial Folders ($50.00); and “5 1-200
Tabs for Trial Folders” ($160.00). The Court will not
strike the $3.45 cost, as it appears to cover copies that are
reasonably and necessarily incurred in the litigation. The
Court will, however, not permit the remaining fees because
they are not covered by Section 1920 and Plaintiff has not
shown that those are the types of expenses ordinarily
separately billed to a private client rather than being
subsumed in overhead costs. The Court will therefore reduce
the expenses award by $234.60.
Final Calculation of Attorney's Fees and Costs
1. Attorney's Fees = $143, 418.86
2. Paralegal Fees = $10, 022.77
3. Costs and Expenses = $10, 222.17 ($13, 572.13 total -
$10.00 faxes -$300.00 per diem - $632.59 deposition costs -
$19.80 court transcripts - $451.44 witness fees -$206.22
Mileage to and from Farmington - Subpoenas - $66.00 parking
and mileage - $1, 429.31 witness lodging and meals - $234.60
4. Total Award = $163, 663.80
requests post-judgment interest on the fee award. Defendant
has not contested this request. The Court will therefore
award post-judgment interest on the attorney fee and cost
award. See Wheeler v. John Deere Co., 986 F.2d 413,
415 (10th Cir. 1993) (holding that 28 U.S.C. § 1961
mandates interest on award of attorney's fees and costs).
THEREFORE ORDERED that Plaintiff's Motion for Costs and
Application for Attorney's Fees and Expenses (ECF No.
173) is GRANTED in part and DENIED in part as follows:
Court GRANTS the motion for an award of attorney's fees,
expenses, and costs, but DENIES the full amount requested.
Court awards Plaintiff $163, 663.80 in total fees and costs,
as well as post-judgment interest.
 The provision for attorney fees in 42
U.S.C. § 1988 was patterned upon the attorney's fees
provisions in Title II and VII of the Civil Rights Act of
1964, and thus, the same standards apply to all cases in
which Congress has authorized an award of fees to a
“prevailing party.” Hensley, 461 U.S. at