United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
John Millard Hurd filed this action against Cardinal
Logistics Management Corporation (Cardinal) asserting two
counts under the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101, et seq., and the ADA
Amendments Act of 2008 (ADAA). On September 25, 2018, the
court granted summary judgment to Hurd on his claim under 42
U.S.C. § 12112(d) and to Cardinal on Hurd's claim
under 42 U.S.C. § 12112(a). (Dkt. No. 62.) The parties
later reached a settlement on the issue of damages but filed
a joint stipulation of dismissal with prejudice that
preserved jurisdiction in this court to decide the
parties' motions for attorney's fees. (Dkt. No. 98.)
Both parties filed motions for attorney's fees and costs.
(Dkt. Nos. 92, 94, 102.) Those motions are fully briefed, and
the court dispensed with oral argument. For the reasons set
forth below, the court will grant in part and deny in part
Hurd's motion and will deny Cardinal's motion.
has a medical history of complex partial epilepsy but
nonetheless became a commercial driver for Plygem Industries,
Inc. (Plygem). In August 2015, after Cardinal acquired
Plygem, Hurd applied to be a commercial driver with Cardinal.
Cardinal required Hurd to submit to physical
examinations-although he was already medically certified to
drive as required by the Department of Transportation
(DOT)-and refused to hire him unless it received a new
medical certificate. Among other things, the examination
revealed that Hurd took Dilantin for an unspecified
condition. Hurd's treating neurologist completed a
medical clearance form disclosing that Hurd suffers from
complex partial epilepsy but could safely operate a
commercial motor vehicle. Based on this diagnosis, Cardinal
refused to hire Hurd.
filed a charge of disability discrimination with the EEOC in
2016 and later filed this two-count action. In count one,
Hurd asserted that Cardinal knowingly discriminated against
him on the basis of his disability by subjecting him to
prohibited medical examinations and refusing to retain or
hire him despite his qualifications and jobs available within
the company. Count two asserted that even if Hurd did not
have an actual disability, Cardinal refused to hire Hurd
because of his record of partial epilepsy and its perception
that he was disabled by the impairment, even though it knew
he possessed the requisite qualifications. Hurd sought a
total of $1, 000, 000.00 in damages: $500, 000.00 in
compensatory and consequential damages, $200, 000.00 in front
pay and benefits (or, in the alternative, an order compelling
Cardinal to hire Hurd), and $300, 000.00 in punitive damages.
the course of litigation, the parties filed and responded to
several motions, the most significant of which were a motion
for judgment on the pleadings and cross-motions for summary
judgment. They also engaged in discovery culminating in
several motions in limine and submitted proposed jury
instructions. The court ultimately granted summary judgment
to Cardinal on one count and to Hurd on the other. A jury
trial was scheduled to resolve the issue of damages, but Hurd
agreed to accept a lump-sum payment of $45, 000.00 from
Cardinal to settle his claims.
now seeks an award of attorney's fees and costs against
Cardinal pursuant to 42 U.S.C. §§ 12117(a) and
2000e-5(k) for the period of June 25, 2017, through June 3,
Nos. 92, 102.) Cardinal also filed a motion for
attorney's fees and costs against Hurd pursuant to 42
U.S.C. § 12205 and Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421 (1978).
the ADA, “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's
fee.” 42 U.S.C. §§ 12117(a), 2000e-5(k). The
parties agree here that plaintiff is a prevailing party.
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(explaining that a party is a prevailing party if it
“succeed[s] on any significant issue in litigation
which achieves some of the benefit [plaintiff] sought in
order to determine the proper amount of a fee award, the
court first calculates the lodestar figure by multiplying the
number of reasonable hours expended by a reasonable billing
rate. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir.
2013), as amended (Jan. 23, 2014). In doing so, the
court may also adjust the figure based on the so-called
Johnson factors, first set forth by the Fifth
Circuit in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir.1974), and adopted by the
Fourth Circuit in Barber v. Kimbrell's Inc., 577
F.2d 216, 226 n.28 (4th Cir. 1978). McAfee, 738 F.3d at 89-90
(explaining the interplay of the lodestar amount and the
Johnson factors). "But trial courts need not,
and indeed should not, become green-eyeshade accountants. The
essential goal in shifting fees (to either party) is to do
rough justice, not to achieve auditing perfection."
Fox v. Vice, 563 U.S. 826, 838 (2011). Thus, when
reviewing a motion for attorney's fees, "courts have
broad discretion to modify the lodestar to more accurately
reflect the extent of a litigant's success." Lux
v. Judd, 868 F.Supp.2d 519, 533 (E.D. Va. 2012).
determining the appropriate lodestar amount, the court should
subtract hours spent in the litigation of unsuccessful claims
"unrelated to successful ones." McAfee,
738 F.3d at 89-90 (quoting Robinson v. Equifax Info.
Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)). Then,
the court should award some percentage of the remaining
amount, depending on the degree of success enjoyed by the
prevailing party. Id.; see also Sergeant v. Acol,
No. 15-cv-2233, 2018 WL 276431, at *8-9 (D. Md. Jan. 3,
Hurd's Motion for Fees and Costs
seeks an attorney's fee award based on the following
hourly rates and time expended on his case:
Paul G. Beers, Esq. (Member)
Emma M. Kozlowski, Esq. (Associate)
Christopher E. Collins, Esq. (Associate)
Terry G. McConaughy (Legal Assistant)
to his motion are billing records supporting these totals,
declarations from the attorneys seeking compensation
regarding their experience, their hourly rates, and the time
expended on this case, and a declaration from an attorney in
the same market and community stating that the above rates
are equal to or below fair market value based on the
timekeepers' qualifications. (Dkt. Nos. 92-1, 92-5.) Hurd
also seeks reimbursement of costs in the amount of $5,
12, 2019, Hurd filed a supplement to his motion for an award
of reasonable attorney's fees and costs, seeking the
following amounts in compensation for the period of May 1,
2019, through June 3, 2019:
Paul G. Beers, Esq. (Member)
Christopher E. Collins, Esq. (Associate)
does not specify an amount of costs in his supplement but has
increased the total costs requested by $864.30.
total, Hurd requests $188, 095.00 in fees and $6, 388.94 in
costs and expenses.
an hourly rate is reasonable is generally determined by
reference to 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). The prevailing rate "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)).
stated above, Hurd's attorneys submitted declarations
swearing that the rates requested in this case reflect their
typical hourly rates. Hurd has further supported his motion
with a declaration from Terry Grimes, Esq., an employment
attorney practicing in the Western District of Virginia, who
opined that based on the attorneys' qualifications, the
requested rates are equal to or less than the fair market
value of their services for a case of this nature and level
of difficulty. Additionally, Hurd cites to a number of
cases from this district in which partners and associates
with similar experience as Mr. Beers and Ms. Kozlowski have
been paid $350.00 per hour and $225.00 per hour,
respectively, for their work on employment-law cases. See
Brown v. Mountainview Cutters, LLC, 222 F.Supp.3d 504
(W.D. Va. 2016); Supinger v. Commonwealth of Va.,
No. 6:15-cv-00017, 2019 WL 1461071 (W.D. Va. 2019). Similar
rates are common in other types of cases as well. See,
e.g., Scott v. Clarke, No. 3:12-CV-00036, 2014
WL 1463755, at *6 (W.D. Va. Apr. 15, 2014) (granting fees of
$400.00 and $230.00 per hour); Naill v. Lincoln Mort.,
LLC, No. 3:09CV00039, 2010 WL 2292133 (W.D. Va. June 7,
2010) (applying a rate of $375.00 per hour).
argues that Hurd has failed to meet his burden to establish
that the rates requested are reasonable in this market. It
asserts that the rates requested for Mr. Beers and Ms.
Kozlowski are excessive. In support of its argument, Cardinal
notes that its own counsel billed at a rate of only $275.00.
It supports this rate by citing to a declaration by Susan C.
North, Esq.-its own attorney-which is further supported by
John Bredehoft, Esq., another attorney from the Norfolk,
Virginia, area. It further cites to Lusk v. Virginia
Panel Corp., 96 F.Supp.3d 573 (W.D. Va. 2015), in
arguing that more reasonable rates for Mr. Beers and Ms.
Kozlowski would be $275.00-300.00 and $150.00, respectively.
court disagrees and finds the rates requested to be
reasonable. Cardinal relies on declarations of attorneys
based in other communities whereas Hurd cites to declarations
of local attorneys with more extensive knowledge of billing
rates in this community. More importantly, this court has
recently awarded fees at the requested rates to attorneys
with similar experience and qualifications as Mr. Beers and
further argues that the rate of $125.00 per hour for a legal
assistant is unsupported by any documentation of Ms.
McConaughy's qualifications. However, the rate of $125.00
per hour is supported by the cases cited in both parties'
memoranda. Specifically, in both Supinger and
Lusk the moving parties requested, and the court
applied, rates of $125.00 per hour for paralegal or legal
assistant services. See Supinger, 2019 WL 1450530,
at *3 n.7 (noting that no party objected to the rate of
$125.00 for paralegals); Lusk, 96 F.Supp.3d at 584
n.3 (using the rate of $125.00 to determine the proper award
of fees for paralegals). ...