United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S AMENDED MOTION TO ASSESS COSTS INCLUDING REASONABLE ATTORNEY’S FEES
Judith Gail Dein United States Magistrate Judge
This suit, filed on May 30, 2013, arises out of the September 2012 termination of the plaintiff, Jennifer Meagher (“Meagher”), from her employment as a tenured teacher at Andover High School (“AHS”) in Andover, Massachusetts. It has never been disputed that the termination was based on Meagher having sent an email to approximately 60 of her colleagues urging them to vote against certain reports required as part of the school’s accreditation application. Meagher saw this as an opportunity to advance the teachers’ union’s collective bargaining goals, while the school characterized it as unlawfully encouraging a work stoppage. Meagher asserted claims against the Andover School Committee (the “ASC” or “Committee”), the Andover School Department and the Superintendent of the Andover Public Schools, Marinel McGrath (“McGrath”), for violations of her rights under 42 U.S.C. § 1983 (“Section 1983”) and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H and 11I (“MCRA”).
On July 2, 2013, while this suit was pending, the Commonwealth Employment Relations Board (“CERB” or “Board”) issued its decision in connection with an unfair labor practices charge filed by the union, finding Meagher’s termination was in response to protected concerted activity and that her employer had discriminated against her based on her union activity in violation of Massachusetts law. The School Committee was ordered to reinstate Meagher to her teaching position at AHS and to compensate Meagher for all losses she had suffered, if any, as a result of the unlawful action. No appeal was taken.
Meagher continued to pursue her claims against the defendants in this action. The fundamental issue raised by this case was the application of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and whether Meagher’s email was entitled to protection under the First Amendment as a statement made as a citizen on a matter of public concern. Although this case presented a limited legal issue, and the facts were basically known to the parties through the unfair labor practices proceeding, the parties were unable to effectuate a streamlined presentation of the case for resolution. Instead, an extensive motion practice followed, with each side blaming the other for the need for court involvement. Eventually, the parties filed cross-motions for summary judgment as to liability only. In a decision dated March 31, 2015, this court concluded that Meagher had been unlawfully dismissed from her employment in retaliation for protected speech, but that McGrath was immune from liability under the doctrine of qualified immunity. This court further held that the plaintiff had failed to establish a triable issue with respect to her claims under the MCRA.
A trial was scheduled on the issue of damages. Before trial, the parties settled Meagher’s claim for $100, 000.00, leaving to the court the issue of reasonable attorneys’ fees and costs. Consequently, the matter is presently before this court on “Plaintiffs’ Amended Motion to Assess Costs Including Reasonable Attorney’s Fees.” (Docket No. 175-5). By this motion, the plaintiff’s counsel is seeking $488, 660.80 in fees, and $16, 237.79 in costs, for a total amount of $504, 898.59. This calculation is based in part on an hourly rate for lead counsel, Mark Stern, of $800 per hour for approximately half of his work, and $400 per hour for work that Mr. Stern completed, but which could have been done by attorneys with lesser experience. It also seeks compensation for close to 1, 000 hours of attorneys’ time.
In this court’s view, the $800 hourly rate charged is excessive, as is the number of hours spent on this litigation. For the reasons detailed herein, this court awards plaintiff $167, 454.18 in fees, and $16, 237.79 in costs, for a total of $183, 691.97.
II. STANDARD FOR AWARDING FEES
In accordance with the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, a “prevailing party” in a civil rights action “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (internal quotation marks and citation omitted). Reasonable costs also are recoverable under § 1988. Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983). It is well-recognized that
Congress's overarching purposes in enacting § 1988 ... were “to ensure ‘effective access to the judicial process' for persons with civil rights grievances, ” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting H.R.Rep. No. 94-1558, at 1 (1976)), and to “encourag[e] the enforcement of federal law through lawsuits filed by private persons, ” Missouri v. Jenkins by Agyei, 491 U.S. 274, 283 n.6, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (internal quotation marks omitted). The award of attorney's fees serves this purpose because it corrects a defect Congress identified in the market: “[T]he private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process” because “[t]hese victims ordinarily cannot afford to purchase legal services at the rates set out by the private market” and because the amount of damages in most civil rights suits is ordinarily too low to otherwise cover the cost of a lawyer. City of Riverside v. Rivera, 477 U.S. 561, 576-77, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986).
Diffenderfer v. Gomez-Colon, 587 F.3d 445, 455 (1st Cir. 2009).
As the First Circuit recently confirmed, “[t]he lodestar approach is the method of choice for calculating fee awards.” Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015). As the court explained further:
Under this lodestar approach, a district court first “calculate[s] the number of hours reasonably expended by the attorneys for the prevailing party, excluding those hours that are ‘excessive, redundant, or otherwise unnecessary.’” Cent. Pension Fund of the Int'l Union of Operating Eng'rs & Participating Emp'rs v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir.2014) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The court then determines “a reasonable hourly rate or rates - a determination that is often bench-marked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence.” Id. Multiplying the results of these two inquiries yields the lodestar amount. The court may then adjust the potential award based on factors not captured in the lodestar calculation. See Hensley, 461 U.S. at 434 & n.9, 103 S.Ct. 1933; [Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997)].
Id. In the instant case, there is a dispute both as to the reasonable hourly rates and the number of hours reasonably expended. Each will be addressed below.
III. CALCULATION OF REASONABLE HOURLY RATES
As detailed more fully below, this court must “find the prevailing hourly rate in Boston for attorneys of comparable skill, experience, and reputation[.]” Martino v. Mass. Bay Transp. Auth., 230 F.Supp.2d 195, 205 (D. Mass. 2002). The burden for establishing that rate is on the fee applicant, who is expected to support the request for an hourly rate with the attorney’s own affidavit as well as with other supporting evidence. See Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 1547 n.11, 79 L.Ed.2d 891 (1984). Here, Mr. Stern has submitted his own affidavit, affidavits from other attorneys, as well as citations to cases and publications he believes are instructive.
A. Statement of Relevant Facts
Counsels’ Background and Experience
Attorney Stern is a graduate of Brown University (1966) and Harvard Law School (1969). Stern Aff. (Docket No. 169-2) ¶ 2. He graduated cum laude and with honors from both institutions, and has been a member of the Bar since 1970. Id. His practice has focused on employment law and civil rights cases, and he has handled a number of noteworthy cases. Id. ¶¶ 3, 5. Mr. Stern is an active member of the Bar, serving on a number of committees and Boards of public interest groups. Id. ¶¶ 7-9. He has taught litigation skills for the New England School of Law, the Advocacy Training Institute, the Massachusetts Chapter of the National Lawyers Guild, and the Suffolk Law School Community Education Project, and has made a number of presentations to organizations and law schools. Id. ¶ 6.
While handling the instant litigation, Mr. Stern was in solo private practice. For most of the relevant time, he had one associate, and at times a paralegal assistant and/or law student intern. Id. ¶ 4. Mr. Stern has submitted eight affidavits from attorneys attesting to his “reputation, both nationally and locally, in the legal community, for [his] work on behalf of working people in the areas of labor and union rights and civil rights, and/or [his] skills and knowledge.” Id. ¶ 11. This court does not doubt his commitment to his clients, their causes, and to the practice of law.
Mr. Stern has applied for a rate of $800 per hour for approximately half of his work. Id. ¶ 59. He also has applied for a rate of $400 per hour for work that he performed but which “could have been done by an attorney less experienced than myself, but more experienced than my first-year associate.” Id. ¶ 64. Mr. Stern seeks the rate of $200 per hour for Attorney Alice Lee, who worked in his office “while a second and third year law student at New England Law Boston, and subsequently as a graduate from law school and member of the bar.” Id. ¶ 66. Finally, he uses the rate of $80 per hour for the paralegal services he and Ms. Lee performed, as well as paralegal work done by Laura Rixham and Erica Ring. Id. ¶¶ 69-72.
Plaintiff’s Evidence of Comparable Hourly Rates
It is Mr. Stern’s contention that he is entitled to be compensated at the rate of senior partners in large law firms doing “difficult and/or complex litigation, such as antitrust cases.” See Pl. Mem. for Fees (Docket No 169-1) at 11 (citing Blum, 465 U.S. at 893, 104 S.Ct. at 1546 (“It is intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases . . . .”)). In support of his requested hourly rate, Mr. Stern has filed an affidavit, in which he attests as follows:
The 2013 National Law Journal Billing Survey shows that the rate I seek ($800 per hour for less than half of my time) falls below the average ($835 per hour) of the billing rates for senior partners in the following surveyed Boston firms in 2013 (two years ago):
A. Nutter McClennan & Fish: $715;
B. Edwards Wildman Palmer: $765; and
C. Foley Hoag: $775
D. Nixon Peabody: $850;
E. Bingham McCutchen: $1, 080
Stern Aff. ¶ 62. Mr. Stern also points to a decision by Judge Gertner awarding $650 per hour to a lead counsel in a wage and hour class action case, which was settled after conditional class certification was granted. Id. ¶ 63 (citing Davis v. Footbridge Eng’g Servs., LLC, Civil Action No. 09-11133-NG). According to Mr. Stern, this counsel had similar credentials to his, and did similar types of work. Id.
In support of his hourly rate, Mr. Stern also submitted the Affidavit of Thomas G. Shapiro, a partner in Shapiro Haber & Urmy LLP, and a classmate of Mr. Stern. Shapiro Aff. (Docket No. 169-12) ¶¶ 1-3. Mr. Shapiro’s firm represents plaintiffs in class actions. Id. ¶ 1. The hourly rate for senior partners in his firm is $850 per hour, rates for junior partners and associates range from $300 to $750 per hour, and the paralegal rate is $210 per hour. Id. ¶ 8. Mr. Shapiro cites to the approval of his rate by Judge Young in a multi-district class action lawsuit alleging defectively designed engines in certain Audi and Volkswagen automobiles. Id. ¶ 9 (citing In Re: Volkswagen & Audi Warranty Extension Litig., Civil Action No. 07-md-01790-WGY (Memorandum and Order dated 2/10/15 (Docket No. 430)). The rate does not appear to have been challenged in that multi-million dollar litigation, where Shapiro, Haber & Urmy was awarded $153, 759.42 for its work, out of more than $16 million in fees. (See C.A. No. 07-md-01790-WGY, Docket No. 430 at 64-65, 85-86).
Mr. Stern has also submitted the Affidavit of Barry C. Klickstein, a graduate of the University of Pennsylvania Law School who has been a member of the Massachusetts Bar since 1975. Klickstein Aff. (Docket No. 169-8) ¶ 2. He is a partner in the law firm of Day Pitney LLP in Boston, Massachusetts, and describes his practice as being “limited to civil litigation.” Id. ¶ 1. He has not provided any further details. According to Mr. Klickstein, “[t]he hourly rate for senior trial partners in my firm ranges from $615 to $770 per hour. Rates for other partners and associates range from $335-$600. Our paralegal rate ranges from $200-$310 per hour.” Id. ¶ 5.
While Mr. Stern submitted additional affidavits from counsel attesting to the significance of the issues raised in cases such as the instant one, and their opinion as to the high quality of Mr. Stern’s work, these affidavits do not contain any information about the hourly rates charged. In particular, this court notes that Mr. Stern submitted the affidavit of Attorney Judith E. Somberg who has been practicing law since 1977, and is a solo practitioner in Cambridge representing, among others, individuals in employment and housing discrimination cases. Ms. Somberg has also served as co-counsel with Mr. Stern on various matters. Somberg Aff. (Docket No. 169-13) ...