United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. RITTER, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiff's Motion for
Costs and Application for Attorney's Fees and Expenses
(Doc. 50) (the “Motion”). The Court has reviewed
the Motion, the exhibits attached to Plaintiff's Motion,
Defendant's Objections to Plaintiff's Motion for
Costs and Application for Attorney's Fees and Expenses
(Doc. 51) and the exhibits attached thereto, and
Plaintiff's Reply to Defendant's Objections to
Plaintiff's Motion for Costs and Application for
Attorney's Fees and Expenses (Doc. 52). Having thoroughly
reviewed the parties' submissions, attachments, and the
relevant law, the Court 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.
27, 2015, Plaintiff filed her Complaint in this case for
gender discrimination, hostile work environment, and
retaliation under Title VII, violations of the Fourteenth
Amendment's guarantee of equal protection under 42 U.S.C.
§ 1983, violations of the New Mexico Whistleblowers'
Protection Act, and violations of the Fair Labor Standards
Act. (Doc. 1). The named Defendants filed their Answer to the
Complaint on September 23, 2015, and made a jury demand.
(Doc. 8; Doc. 9). A scheduling order was entered in the case
on November 30, 2015. (Doc. 15). Between November 2015 and
October 2016, the parties engaged in discovery, and a
settlement conference was set and reset three times.
See Docs. 17, 18-20, 22-23, 26, 28-29, 31, 32-33,
36, 43, 46. No. motions were filed throughout the case. On
November 9, 2016, Plaintiff filed her Notice of Acceptance of
Offer of Judgment. (Doc. 47). The Offer of Judgment provided
that Defendant Board of County Commissioners of the County of
Bernalillo would “take judgment against it in the
amount of Ten Thousand and One Dollars ($10, 001.00), plus
Plaintiff's reasonable and allowable costs and
attorneys' fees accrued to the date of [the] Offer of
Judgment, to be determined by the Court.” (Doc. 47-1 at
1). The individual defendants were dismissed by stipulation,
and on January 23, 2017, District Judge Martha Vazquez
entered judgment as specified in the Offer of Judgment. (Doc.
48; Doc. 49).
January 26, 2017, Plaintiff filed her Motion for Costs and
Application for Attorney's Fees and Expenses. (Doc. 50).
This Motion was referred to Magistrate Judge William P.
Lynchpursuant to 28 U.S.C. Sections 636(b)(1)(A)
and Rule 72(a) of the Federal Rules of Civil Procedure. (Doc.
54). In her motion, Plaintiff sought $33, 540.00 in
attorney's fees, $2, 074.00 in paralegal fees, and $2,
376.76 in costs or expenses. (Doc. 50-1 at 2; Doc. 50-2 at
4). For costs, Plaintiff included $1, 730.09 for “Paul
Baca Reporters - Pacheco, Raught, Mitchell, Marquez and
Martinez Depositions” and 256 photocopies at $0.20 per
page for those deposition exhibits (Doc. 50-1 at 1).
Defendant Board of County Commissioners filed its Objections
to Plaintiff's Motion for Costs and Application for
Attorney's Fees and Expenses on February 10, 2017. (Doc.
51). Defendant Board of County Commissioners of the County of
Bernalillo (“Defendant”) objected to the
inclusion of the cost of the deposition transcripts per
D.N.M. LR-CIV 54.2(b) and Plaintiff's rate of $0.20 per
page for photocopies as well as the number of photocopies
that were made for the deposition exhibits. (Doc. 51 at 1-2).
Defendant also objected to Plaintiff's entries for
paralegal work that it deemed “clerical” and to
certain time entries for attorney's work it deemed
excessively long. (Doc. 51 at 2-3). Plaintiff filed her reply
on February 15, 2017. (Doc. 52). Plaintiff argued that the
deposition transcripts were “reasonably necessary to
the litigation” per D.N.M. LR-CIV 54.2(b)(2)(C). (Doc.
52 at 2). She did not address Defendant's arguments
regarding her photocopy rate. Plaintiff also countered that
the paralegal and attorney's fees were not clerical and
not excessive. Id. at 2-3.
Plaintiff's attorney's fees specified in the
Application are reasonable.
parties here, as part of the Offer of Judgment, have
stipulated to an award of Plaintiff's reasonable
attorney's fees. (Doc. 47-1). Therefore, the Court need
only determine whether the amount of attorney's fees
provided for in Plaintiff's application for
attorney's fees are reasonable. To determine whether an
attorney's fee is reasonable, courts generally use the
“lodestar rate, ” 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 v. Eckerhart, 461 U.S. 424, 433
(1983) and Phelps v. Hamilton, 120 F.3d 1126, 1131
(10th Cir. 1997)). The calculation allows the court to have
an objective basis to estimate the value of an attorney's
services. Hensley, 461 U.S. at 433. The party
seeking an attorney's fee award should submit evidence
documenting the hours the attorney expended on her case and
her hourly rate. Id. The Court may then adjust the
lodestar amount according to the particularities of the case
and its outcome, and the adequacy of the fee applicant's
records. Phelps v. Hamilton, 120 F.3d at 1131;
see also, Hensley, 461 U.S. at 433
(“Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.”).
Records must detail all hours for which the attorney seeks
compensation and explain how the attorney allotted those
hours to specific tasks. Robinson, 160 F.3d at 1281.
“Counsel for the prevailing party should make a good
faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise
unnecessary….” Hensley, 461 U.S. at
does not dispute Plaintiff's requested reasonable hourly
rate of $300 per hour. (Doc. 51). In addition, Plaintiff has
submitted two affidavits in support of her application from
other experienced civil rights defense attorneys who attest
that $325.00 per hour is a reasonable rate for a complex
civil rights case. (Doc. 50-3 at 2; Doc. 50-4 at 2).
Therefore the Court will adopt Plaintiff's hourly rate of
$300 per hour as reasonable.
argues that Plaintiff's entries for reviewing and
summarizing depositions is excessive. (Doc. 51 at 4).
Specifically, Defendant calculates that the amount of time to
take all of the depositions in this case totaled 12 hours,
but disapproves of Plaintiff's counsel's expenditure
of 10 hours to review and summarize those depositions, along
with 6.3 hours Plaintiff's counsel spent in part
reviewing depositions in preparation for drafting a
settlement letter. Id. From Plaintiff's records,
it appears that Plaintiff's counsel spent 3.2 hours
reviewing and summarizing his client's deposition and 6.8
hours summarizing the remaining four depositions. (Doc. 50-2
at 4). Plaintiff explains that counsel makes “copious
notes of actual and emergent legal issues researches relevant
case law on those legal issues, and culls out supplemental
facts to be used in responding to a motion for summary
judgment” when reviewing and summarizing depositions.
(Doc. 52 at 2). While Plaintiff's counsel could have been
more specific in this time entry to include the additional
tasks he claims to encompass summarizing deposition
transcripts, ten hours to complete these tasks does not
appear to be excessive. This objection being the only one
raised by Defendant as to the reasonableness of
Plaintiff's attorney's fees, the parties having
agreed to reasonable attorney's fees themselves rather
than by any fee-shifting scheme, and the Court seeing no
other issues with Plaintiff's counsel's records for
her attorney's fees, Plaintiff's application for
attorney's fees in the amount of $33, 540.00 is granted.
Plaintiff's application for fees for paralegal work
will be reduced.
argues that Plaintiff's paralegal fees are excessive,
because certain itemized entries are considered secretarial
or clerical. (Doc. 51 at 2-3). The Supreme Court has noted
that an award of attorney's fees at a lower rate is
allowable for tasks performed by a paralegal that might have
otherwise been performed by an attorney, such as
“factual investigation, including locating and
interviewing witnesses; assistance with depositions,
interrogatories, and document production; compilation of
statistical and financial data; checking legal citations; and
drafting correspondence.” Missouri v. Jenkins by
Agyei, 491 U.S. 274, 288 n. 10 (1989). However,
“purely clerical or secretarial tasks should not be
billed at a paralegal rate, regardless of who performs
court as well as other district courts within the Tenth
Circuit have found that tasks performed by paralegals such as
“filing, organizing files, making copies, printing,
ordering file folders, organizing boxes, updating files with
correspondence and pleadings, and preparing files for
storage” are not recoverable. Hayes v. I.C. Sys.,
Inc., No. 2:14-CV-2513-JTM-KGG, 2015 WL 506192, at *4
(D. Kan. Feb. 6, 2015); see also, Gen. Protecht
Grp., Inc. v. Leviton Mfg. Co., 122 F.Supp.3d 1114, 1149
(D.N.M. 2015) (Browning, J.) (noting in dicta that tasks such
as printing court documents or distributing documents around
an office are clerical in nature); In re Potter, No.
7-05-14071 MS, 2007 WL 1672142, at *5 (Bankr. D.N.M. June 4,
2007) (finding, for example, that that reviewing pleadings,
conferencing with a paralegal, and scanning documents were
clerical or secretarial tasks and not recoverable);
Erickson v. City of Topeka, Kansas, 239 F.Supp.2d
1202, 1208 (D. Kan. 2002) (finding that the task of
“reviewing and organizing latest correspondence or
pleadings” is not recoverable).
Plaintiff's case, there are several entries that include
descriptions that resemble the clerical work ...