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Martinez v. Board of County Commissioners

United States District Court, D. New Mexico

April 4, 2018

PEGGYLEE MARTINEZ, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, COUNTY OF BERNALILLO, Department of Public Works Operations and Maintenance, Defendants.

          MEMORANDUM OPINION AND ORDER

          JERRY H. RITTER, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         PROCEDURAL HISTORY

         On July 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).

         On 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. Lynch[1]pursuant 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.

         ANALYSIS

         I. Plaintiff's attorney's fees specified in the Application are reasonable.

         The 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 434.

         Defendant 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.

         Defendant 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.

         II. Plaintiff's application for fees for paralegal work will be reduced.

         Defendant 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 them.” Id.

         This 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).

         In Plaintiff's case, there are several entries that include descriptions that resemble the clerical work ...


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