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Supinger v. Commonwealth

United States District Court, W.D. Virginia, Lynchburg Division

March 4, 2019

ROBERT E. LEE SUPINGER, JR., Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al., Defendants.

          REPORT AND RECOMMENDATION

          ROBERT S. BALLOU UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert E. Lee Supinger, Jr., (“Supinger”) filed this action related to grievances alleged during and after his employment with the Virginia Department of Motor Vehicles (“DMV”). Supinger initially alleged fourteen claims against multiple Defendants associated with the DMV. Supinger sought injunctive relief and reinstatement; $5, 000, 000 in compensatory damages; $5, 000, 000 in liquidated/punitive damages; $250, 000 in back pay; $1, 000, 000 in front pay; and pre-judgment interest, costs, and attorneys' fees. Dkt. 23. The district court denied qualified immunity and granted Supinger summary judgment as to the due process claims, but dismissed all other asserted claims. The Fourth Circuit affirmed the district court in an interlocutory appeal and remanded the case for damages. Thereafter, the parties reached a confidential settlement agreement following mediation to resolve all claims. There can be no doubt that this contentious case was hard-fought at every step of the litigation. Ultimately, Supinger secured a substantial settlement and is the prevailing party, thus entitling him to attorneys' fees under 42 U.S.C. § 1988.

         The district court has referred to me Supinger's motions for attorneys' fees and costs. Dkts. 211, 213. Supinger now seeks $806, 882.50 in attorney's fees and $3, 415.51 in costs, plus interest at the judgment rate. Dkt. 212. Supinger seeks additional attorney's fees in the amount of $37, 740.00 incurred from additional work since filing his original motion, for a total claim of attorneys' fees of $844, 622.50.[1] Dkt. 223. Specifically, the petition includes fees from both Supinger's original counsel and the attorneys who prosecuted the case when the original counsel developed a conflict and had to withdraw.

Attorney

Hours Billed

Additional Hours Billed for Fee Petition

Rate

Total Fees Sought

Terry N. Grimes

1596.7

78.1

$400.00

$669, 920.00

Brittany M. Haddox

377.8

11.3

$250.00

$97, 275.00

Paralegal Services

73.9

0

$125.00

$9, 237.50

Melvin E. Williams

83.4

10.5

$350.00

$32, 865.00

Micah D. Wright

59.5

0

$225.00

$13, 387.50

Paralegal Services

9.4

0

$125.00

$1, 175.00

Andrew D. Meyer

83.05

0

$250.00

$20, 762.50

TOTAL:

$844, 622.50

         Defendants DMV, Richard Holcomb, Joseph Hill, and Jeannie Thorpe (collectively, “Defendants”) partially oppose the motion for attorneys' fees and expenses and request that the Court substantially reduce any award. Dkt. 221. Having considered the record, legal arguments submitted, and applicable law, I recommend that the District Court GRANT Supinger's Motion for Attorneys' Fees (Dkt. 211), and Motion for Bill of Costs (Dkt. 213), and award $488, 962.60 in attorneys' fees and $2, 704.90 in costs, for a total award of $491, 667.50.

         I. Factual and Procedural Background [2]

         Plaintiff Robert E. Lee Supinger, Jr., was a former Assistant Special Agent in Charge at the Virginia Department of Motor Vehicles (“DMV”) Lynchburg office. Supinger was unhappy with several aspects of his workplace at the DMV, which he raised with his direct supervisors and the DMV administration. He was suspended on February 28, 2012, and terminated on April 9, 2013. Supinger filed this action on July 8, 2015, asserting fourteen claims against various defendants related to his employment with the DMV and subsequent termination, most of which the District Court dismissed for failure to state a claim or granted summary judgment for Defendants.[3] Relevant here is Supinger's claim under 42 U.S.C. § 1983 that Defendants denied him procedural due process related to his efforts to grieve the termination of his employment in violation of the Fifth and Fourteenth Amendments against four named Defendants.[4] The District Court granted summary judgment in favor of Supinger on July 20, 2016, on his procedural due process claim, finding that Supinger's due process rights were violated in connection with his termination and the subsequent grievance process. Dkt. 141. Defendants filed an interlocutory appeal, arguing that they were entitled to qualified immunity. Dkt. 150. The Fourth Circuit affirmed the judgment and remanded this action to the District Court on the question of damages. Dkt. 198. The parties thereafter resolved the damages question in mediation. Dkt. 212, 1-2. Supinger's motions for attorneys' fees and costs pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d) followed. Dkts. 211, 213. Supinger retained two sets of counsel in this case, and the fee petition accounts for all attorneys that were involved.[5]

         II. Analysis

         “In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, ” section 1988 permits “the court, in its discretion, [to] allow the prevailing party . . . reasonable attorneys' fee[s] as part of the costs.” 42 U.S.C. § 1988(b). The plaintiff bears the burden of demonstrating that the amount of fees sought is reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The parties agree here that Supinger is the prevailing party for purposes of an award of attorneys' fees and costs. See Dkt. 224.

         A. Lodestar Calculation

         The Fourth Circuit follows a three-step process to determine a reasonable attorneys' fee award. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court determines the lodestar figure, which is calculated by multiplying the reasonable number of hours expended by the reasonable hourly rate. Id. Courts evaluate the reasonableness of the hours expended and rates sought on fee petitions under the lodestar method using the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), as adopted by Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978). See Robinson v. Equifax Info. Servs., 560 F.3d 235, 243-44 (4th Cir. 2009).[6] A strong presumption exists that a properly calculated lodestar figure is reasonable. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). That presumption may be overcome only in rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. Id. Second, the court subtracts fees for hours spent on unsuccessful claims related to successful claims. McAfee, 738 F.3d at 88. Finally, the court awards a percentage of the remaining amount to the plaintiff, depending on the degree of success of the prevailing party's claims. Id.

         i. Hourly Rates

         Supinger seeks rates of $400.00 per hour for attorney Terry Grimes and $250.00 per hour for attorney Brittany Haddox.[7] Dkt. 212, at 18. The hourly rate included in an attorneys' fees request must be reasonable, which is generally determined by the prevailing market rates in the relevant legal community for the type of work for which an award is sought. McAfee, 738 F.3d at 91. The relevant community is usually that in which the district court sits. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 179 (4th Cir. 1994). Determining the prevailing rate in the relevant community “may be established through affidavits reciting the fees of counsel with similar qualifications, information concerning fee awards in similar cases, and/or specific evidence of counsel's billing practice.” Freeman v. Potter, No. 7:04cv00276, 2006 WL 2631722, at *4 (W.D. Va. Sept. 13, 2006) (citing Spell v. McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987)).

         This case was filed in the Lynchburg Division of the Western District of Virginia. Supinger states that “[f]ew employment discrimination cases are successfully prosecuted in the [W]estern [D]istrict of Virginia.” Dkt. 212, at 5. Because Supinger agrees that he prosecuted this case in the Western District of Virginia, I find the relevant market is Central and Southwest Virginia.

         Supinger supports his attorneys' rates by focusing on three Johnson factors: the skill required by his attorneys, the difficulty of the questions raised in this litigation, and (to some extent) the results obtained. In addition to claiming that few employment discrimination cases are successful in this District, Supinger further claims that an award of summary judgment, affirmed by the Fourth Circuit, is “extremely rare, ” and that the law in the area of employment law is so fluid that it changes daily and requires attorneys to constantly research appellate decisions. Dkt. 212, at 5. Supinger, however, fails to include any evidence for those contentions. I do not find that this area of the law is so complicated as to require a premium on the prevailing market rate simply because it is rapidly changing. Skilled attorneys must routinely keep themselves apprised of changes in their areas of practice as part of their ongoing duties to their clients and the courts.

         Supinger includes a number of affidavits from other employment law attorneys who are familiar with Mr. Grimes and Ms. Haddox. Those attorneys confirm the rates for Mr. Grimes and Ms. Haddox in this case. See Dkt. 212, Ex. 2. Recent fee awards in similar cases are helpful in shedding additional light on the rates. Mr. Grimes and Ms. Haddox were counsel for a plaintiff in a recent Title VII civil rights case, in which Judge Conrad found that rates of $350.00 and $225.00 for Mr. Grimes and Ms. Haddox, respectively, to be reasonable after considering their backgrounds and similar affidavits. Brown v. Mountain View Cutters, LLC, 222 F.Supp.3d 504, 513 (W.D. Va. 2016). Additionally, in a companion case to Supinger's arising from (at least partially) the same set of facts, Mr. Grimes submitting an affidavit in which he endorsed a fee of $350.00 for lead counsel and $225.00 for counsel's associate as reasonable for employment lawyers practicing in the Western District of Virginia. See Pl.'s Brief/Memorandum in Support of Motion for Attorney Fees and Costs, Wootten v. Commonwealth of Virginia, 6:14-cv-13 (W.D. Va. Jan. 13, 2017), Dkt. 243-1, at 14-18.

         After reviewing fee awards in similar cases, and taking into account employment practice in the relevant legal market, I find that an hourly rate of $350.00 for Mr. Grimes and $225.00 for Ms. Haddox is reasonable for their work performed in this case.[8]

         ii. Reasonable Hours

         Defendants argue that Supingers's attorneys' fee application should be drastically reduced due to excessiveness, vagueness in time entries, block billing, and duplication of efforts.

         1. Excessiveness, Vagueness, and Block Billing

         Defendants contend that Supinger's counsel spent excessive amounts of time preparing for matters in which they had limited roles or that did not require extensive preparation; submitted many vague time entries such that it is not possible to determine if the time spent on various tasks is reasonable; and inappropriately lumped multiple tasks into single, undivided amounts of time. As a result, Defendants contend that the Court cannot assess whether the attorneys spent an appropriate amount of time on the case and thus whether the fee request is reasonable. Supinger argues that time is compensable as long as billing statements meet the basic requirement of listing the hours and identifying the general subject matter of time expenditures. Dkt. 223, at 13. He also contends that none of the entries are vague or inaccurate, and revealing any more detail in the entries would reveal information protected by attorney-client privilege. Id. at 16. In light of these arguments and the materials before me, I recommend an overall 15% reduction for a combination of excessive billing, vague time entries, and block billing.

         “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 v. Eckerhart, 461 U.S. 424, 434 (1983). Courts have found that “[l]umping and other types of inadequate documentation are a proper basis for reducing a fee award because they prevent an accurate determination of the reasonableness of the time expended in a case.” Guidry v. Clare, 442 F.Supp.2d 282, 294 (E.D. Va. 2006). “The court's role is not to labor to dissect every individual entry to hypothesize if the different tasks in the same entry could reasonably result in the requested time.” Project Vote/Voting for Am., Inc. v. Long, 887 F.Supp.2d 704, 716 (E.D. Va. 2012). Courts reduce the fee award in such circumstances by either identifying specific hours that are not sufficiently documented or by reducing the overall fee award by a fixed percentage based on the trial court's familiarity with the case, its complexity, and the counsel involved. Id. at 716.

         There can be no doubt that this case required significant time and labor, but the records supporting Supinger's fee petition do not justify an award for the full amount he requests. First, Supinger has provided billing records that are replete with entries that appear excessive on their face because of the vagueness of the entries. For example, Ms. Haddox spent 4.4 hours “[r]eviewing filings on ECF system” (Dkt. 212-1, at 7), and 3.1 hours “[r]eading defendants' appeal opening brief” (id. at 24). Mr. Grimes also submitted entries that included, for example: 6.9 hours to “[b]egin review of Supinger file from opposing counsel” (id. at 9); 4.5 hours to “[r]eview brief filed by counsel for Wootten” (id. at 21); 8.5 hours to “review deposition exhibits” (id. at 26); and 6.3 hours for “[e]mails to and from counsel” (id. at 28). A more stark example is the collection of twenty-three entries spanning three pages for a total of 144.6 hours that Mr. Grimes billed for “review” of discovery documents, transcripts, or briefs. Id. at 32-34. Additionally, Mr. Grimes billed 34.9 hours to draft Supinger's attorneys' fee petition.[9] Id. at 38- 39. Without more detailed descriptions, it is not possible to determine whether the time spent on those and similar tasks is appropriate. Finally, for Richard Holcomb's deposition, Supinger seeks compensation for 22.7 hours of preparation (Dkt. 212-1, at 12, 17), but only 3.2 hours for the actual deposition (id. at 17). These entries give no insight as to the particular tasks performed beyond reviewing, drafting, or preparing, or the specific reasons for such time spent on these items. The apparent excessiveness in the time entries weighs in favor of reducing the amount of fees awarded.

         Vague descriptions plague Supinger's billing records. “[T]he use of excessively vague time descriptions is a generally disfavored billing practice. Such descriptions ‘inhibit the court's reasonableness view' and also ‘justify a percentage reduction in the fee award.'” Brown, 222 F.Supp.3d at 514 (citing Ashley II of Charleston, LLC v. PCS Nitrogen, Inc., No. 2:05-2782, 2015 WL 4469765, at *10 (D.S.C. July 21, 2015) (citing Local 32B-32J, Service Employees Intern. Union, AFL-CIO v. Port Authority of New York and New Jersey, 180 F.R.D. 251, 253 (S.D.N.Y. 1998) (reducing award by 20% for vague time entries, such as “preparation for trial” and “research and draft papers”))); accord Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 180 (4th Cir. 1994) (“We have frequently exhorted counsel to describe specifically the tasks performed, a practice which is especially necessary when we review an award in a case where the plaintiff has not prevailed on all the claims.”).

         The billing entries are replete with vague descriptions. For example, Mr. Grimes entered 1.3 hours for “legal research” (Dkt. 212-1, at 9), and 5.7 hours to “digest transcripts” (id. at 18). More problematic is Mr. Grimes's constant use of “prepare for deposition, ” “work on transcripts, ” “work on appeal, ” “prepare for trial, ” “legal research, ” “work on discovery, ” and “work on appellate brief.” Id. at 3, 5-6, 8-27, 32. Ms. Haddox, although not nearly as consistently as Mr. Grimes, also submitted vague time entries, including “preparation for depositions.” Id. at 16. While these sorts of entries may suffice for short-lived cases, this litigation has continued for years and amassed 235 docket entries. Furthermore, failing to specifically describe the tasks the attorneys performed requires this Court to “labor to dissect” the individual entries to see how they match up with the various claims and phases of litigation. The Fourth Circuit in Rum Creek recognized this problem and implored attorneys to carefully record their time, particularly in this type of case in which Supinger prevailed on only one of his original fourteen claims. Considering all of the above, I recommend that the regular vagueness of time entries in the billing records warrants a further reduction in the amount of fees awarded.

         Finally, Defendants argue that Supinger's counsel engaged in “block billing, ” or the practice of lumping multiple tasks into the same billing entry. Courts in the Fourth Circuit have routinely held that block billing does not provide the court with a sufficient breakdown to support an attorneys' fee request. “Inadequate documentation includes the practice of grouping, or ‘lumping,' several tasks together under a single entry, without specifying the amount of time spent on each particular task.” Guidry v. Clare, 442 F.Supp.2d 282, 294 (E.D. Va. 2006). “Lumping and other types of inadequate documentation are thus a proper basis for reducing a fee award because they prevent an accurate determination of the reasonableness of the time expended in a case.” Id. at 294.

         There are multiple block billing entries in Supinger's billing records. Mr. Grimes frequently combined multiple tasks into one billing entry. For example, Mr. Grimes billed 7.3 hours to “[p]repare for depositions of Elizabeth Jensen, John Dawson, Thomas Dash and Ronna Howard” (Dkt. 212-1, at 16); 3.9 hours to “[r]eview VRS member benefits profile, 2010 W-2 and earnings summary, 2011 W-2 and earnings summary, 2012 tax return, and work on damages calculations” (id. at 23); 6.2 hours to “[r]eview DMV's opposition to consolidation in Wootten case and work on reply memorandum and email to counsel concerning consolidation” (id. at 32); and 5.3 hours to “[r]eview order from Judge Moon in Stultz and research concerning question posed by the Court and conf[e]rence with counsel to discuss these matters” (id. at 36). While not nearly as frequently as Mr. Grimes, Ms. Haddox occasionally lumped together her billing entries. For example, she submitted one entry for 2.7 hours for “oral argument of summary judgment motions in Stultz in preparation for our upcoming motions and hearings and reviewing letter filed by defendants concerning ...


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