Karnes v. SCI Colorado Funeral ( 1998 )


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  •                                                                                  F I L E D
    United States Court of Appeals
    Tenth Circuit
    DEC 17 1998
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    DOROTHY S. KARNES,
    Plaintiff - Appellant,
    v.
    No. 96-1480
    (District Court No. 93-Z-1150)
    SCI COLORADO FUNERAL
    (District of Colorado)
    SERVICES, INC., d/b/a T.G.
    McCARTHY FUNERAL HOME
    Defendant - Appellee.
    ORDER AND JUDGMENT*
    Before ANDERSON, KELLY, and HENRY, Circuit Judges.
    Dorothy Karnes appeals the district court’s order awarding her a lesser amount of
    attorneys’ fees and costs than she requested after prevailing on her Title VII retaliatory
    discharge claim against the defendant SCI Colorado Funeral Services, Inc. (SCI).1 We
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court generally
    disfavors the citation of orders and judgments; nevertheless, an order and judgment may
    be cited under the terms and conditions of 10th Cir. R. 36.3.
    1
    SCI has filed an appeal of the district court’s judgment after a jury verdict,
    no. 96-1478, arguing that the district court erred in instructing the jury on the burden of
    proof for Ms. Karnes’s punitive damages claims. That appeal is addressed in a separate
    conclude that the district court failed to make adequate findings regarding the reasons for
    the reduced award and therefore remand the case for further proceedings.
    I. BACKGROUND
    After a jury found in her favor on her Title VII retaliatory discharge claim and
    awarded her compensatory and punitive damages, Ms. Karnes filed a motion for
    attorneys’ fees and costs. She requested an award of $96,540.84, and SCI objected,
    arguing that the total amount awarded should be $59,175.70. Among other arguments,
    SCI contended that the award should be reduced because: (1) Ms. Karnes had not
    prevailed on all of her claims against SCI; (2) some of her attorneys had duplicated the
    work of their colleagues; (3) the supporting papers did not sufficiently describe some of
    the attorneys’ work; (4) the hourly rate for one of Ms. Karnes’s attorneys was too high;
    and (5) some of the items were not recoverable as costs under the applicable statutes.
    The district court concluded that Ms. Karnes’s fees should be reduced to the
    amount proposed by SCI. It set forth its reasons as follows:
    The Court has reviewed the motion, the briefs, and the
    itemized billing statements submitted by the parties, as well as
    the applicable case law . . . and concludes that $59,175.70 in
    attorneys’ fees should be awarded to plaintiff.
    Although there is little need to discuss every disputed
    opinion. Ms. Karnes has also filed an appeal, no. 97-1212, challenging the district court’s
    denial of her motion for post-judgment attorneys’ fees. That appeal is addressed in
    separate order and judgment.
    2
    charge on the itemized billing statement, the Court feels
    compelled to address defendant’s assertion concerning
    counsel’s hourly rate. Throughout the latter part of this
    litigation, plaintiff was represented by two attorneys: Richard
    LaFond and Charlotte Sweeney. Defendant asserts that Ms.
    Sweeney’s hourly rate of $150 is excessive in light of the
    short period of time for which she has been practicing law.
    Despite Ms. Sweeney’s contribution to her client’s victory,
    the Court is inclined to agree. There is little justification for
    new associates in Denver billing clients at such a rate.
    Defendant submits that an hourly rate of $100 is a reasonable
    rate attributable to Ms. Sweeney. The Court finds this
    manifestly fair.
    Karnes’s Supp. App. at 72.
    Ms. Karnes then filed a motion for reconsideration, which the district court denied.
    In its order on the motion to reconsider, the court explained that it had considered the
    guidelines for awarding attorneys’ fees, including “the time and labor required, the
    novelty and difficulty of the questions, the skill requisite to perform the legal service, the
    customary fee in the community, and the experience and ability of the attorneys.” 
    Id. at 80
    (District Court Order filed September 13, 1996) (citing Johnson v. Georgia Highway
    Express, Inc., 
    488 F.2d 714
    , 717-719 (5th Cir. 1974)). It then commented on the billing
    rates and the work performed by Ms. Karnes’s attorneys:
    The hourly rates charged by [Ms. Karnes’s] counsel,
    Richard C. LaFond and Charlotte Sweeney, are high for this
    community. At the time of trial, Mr. LaFond charged $200.00
    while Ms. Sweeney charged $150.00. This Court is not aware
    of any Denver-based employment law attorneys who charge
    more than $200.00 an hour. Even if Mr. LaFond’s short list
    of other attorneys who do charge around $200.00 an hour is
    considered, it is clear that Mr. LaFond is at, or near the top of
    3
    the Denver fee scale. Given his level of experience, it may be
    arguable that such a rate is reasonable. However, the Court
    cannot justify $150.00 an hour for Ms. Sween[e]y.
    Despite [Ms. Karnes’s] assertion to the contrary, much
    of the work done by the various attorneys on [her] “team” was
    duplicative. For example, the time spent by Ms. Sweeney in
    the courtroom, assisting Mr. LaFond in preparing his cross-
    examination and “assisting jury selection,” duplicates Ms.
    LaFond’s efforts. . . .
    It is not necessary that this Order document the Court’s
    analysis of every line of [Ms. Karnes’s] voluminous itemized
    billing statement. The Court has considered the guidelines in
    Johnson and is satisfied that the fees awarded were proper.
    This was not a novel or difficult legal question. The trial was
    not extended or complex. After observing [Ms. Karnes’s]
    attorneys’ work product, preparation, and ability, this Court
    finds an award of attorneys’s fees in the amount of
    $59,175.70 to be not only reasonable, but generous.
    
    Id. at 80
    -81.
    II. DISCUSSION
    On appeal, Ms. Karnes argues that the district court failed to provide a sufficient
    explanation of its reasons for reducing the requested award of attorneys’ fees and costs.
    She also argues that many of SCI’s objections to her motion for fees and costs are not
    warranted. She urges this court to reverse the district court’s decision and award her the
    fees and costs that she requests or, in the alternative, to remand the case to the district
    court for additional findings.
    A district court may award attorneys’ fees to the prevailing party in a Title VII
    action. 42 U.S.C. § 2000e-5(k); Metz v. Merrill Lynch, Pierce, Fenner & Smith, 
    39 F.3d 1482
    , 1492 (10th Cir. 1994). “Under the Title VII provision, a prevailing plaintiff
    4
    ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’” Fogerty v.
    Fantasy, Inc., 
    510 U.S. 517
    , 535 (1994) (Thomas, J., concurring) (quoting Christianburg
    Garment Co. v. EEOC, 
    434 U.S. 412
    , 417 (1978)). Generally, courts apply the same
    standards in awarding attorneys fees under § 2000e-5(k) as they do in awarding fees
    under 42 U.S.C. § 1988–the statute that authorizes an award of attorneys’ fees in a variety
    of civil rights actions. See Smith v. Northwest Fin. Acceptance, Inc., 
    129 F.3d 1408
    ,
    1418 n.7 (10th Cir. 1997). To determine a reasonable fee, the district court must arrive at
    a “lodestar” amount by multiplying the hours that the plaintiff’s counsel reasonably spent
    on the litigation by a reasonable hourly rate. Id.; Ramos v. Lamm, 
    713 F.2d 546
    , 552-
    559 (10th Cir. 1983).
    In addition to the fees and expenses allowed under § 2000e-5(k), a prevailing party
    in a civil rights action is generally entitled to recover certain costs. See Jane L. v.
    Bangerter, 
    61 F.3d 1505
    , 1517 (10th Cir. 1995) (citing Fed. R. Civ. P. 54(d) and 28
    U.S.C. § 1920)). These recoverable costs include clerk fees, court reporters’ fees,
    printing and witness fees, copying fees, and certain docket fees. 
    Id. We review
    the district court’s award of attorneys’ fees and costs for an abuse of
    discretion. See 
    Smith, 129 F.3d at 1418
    ; 
    Bangerter, 61 F.3d at 1517
    . Factual findings
    underlying the award are reviewed for clear error, 
    Bangerter, 61 F.3d at 1509
    , while
    underlying legal conclusions and statutory interpretations are considered de novo, Phelps
    v. Hamilton, 
    120 F.3d 1126
    , 1129 (10th Cir. 1997). Importantly, in spite of its discretion,
    5
    the district court must still “provide a concise but clear explanation of its reasons for the
    fee award.” Hensley v. Eckerhart, 
    461 U.S. 424
    , 437 (1983). The court’s explanations
    must “give us an adequate basis for review.” 
    Ramos, 713 F.2d at 552
    ; see also Moe v.
    Avions Marcel Dassault-Breguet Aviation, 
    727 F.2d 917
    , 936 (10th Cir. 1984) (holding
    that the district court must state its reasons in sufficient detail “so that the appellate court
    will have a basis for judging whether the trial court acted within its discretion”).
    In the instant case, the district court’s initial order awarding Ms. Karnes a reduced
    amount offers only one reason for the reduction: that Ms. Sweeney’s $150 per hour rate
    was too high. The order does not determine a lodestar amount and does not address any
    of SCI’s other arguments for a reduction of Ms. Karnes’s award. Similarly, the court’s
    order denying Ms. Karnes’s motion for reconsideration offers only one additional reason
    for the reduced award: the duplication of work by Ms. Karnes’s attorneys. The only
    duplicative work that the court’s order specifies is the time spent by Ms. Sweeney in the
    courtroom.
    We see no abuse of discretion in the district court’s reduction of the award on the
    basis of Ms. Sweeney’s hourly rate. SCI provided information indicating that its
    attorneys billed associates of comparable experience at considerably lower rates, and the
    district court was authorized to consider that information in determining a reasonable rate
    for Ms. Sweeney. See Sussman v. Patterson, 
    108 F.3d 1206
    , 1212 (10th Cir. 1997).
    Similarly, it was not an abuse of discretion for the district court to reduce the
    6
    award because some of Ms. Sweeney’s work duplicated the work of other attorneys. In
    light of the district court’s opportunity to observe the litigation first hand, we afford
    considerable deference to its assessment of the amount of time that it finds reasonable for
    attorneys to expend on various tasks. See Mares v. Credit Bureau of Raton, 
    801 F.2d 1197
    , 1205 (10th Cir. 1986); 
    Ramos, 713 F.2d at 553-555
    .
    Nevertheless, the lower hourly rate and the duplicative work of Ms. Sweeney do
    not account for the total amount of the reduction in Ms. Karnes’s award. Although SCI
    objected to the requested fees and costs on several other grounds, and although, according
    to SCI, these objections, if sustained, would justify reducing the award to the $59,175.70
    amount actually awarded to Ms. Karnes, the district court’s orders do not address any of
    these other specific objections.2
    2
    We note that neither Ms. Karnes nor SCI included SCI’s objection to Ms.
    Karnes’s motion for attorneys’ fees and costs in the appendices that they have filed in this
    appeal. However, SCI did attach a copy of the objection to its response brief. The court’s rules
    require a party that believes that additional material should be included in the record to file a
    supplemental appendix rather than an attachment to a brief. See 10th Cir. R. 30.2 .
    Nevertheless, in order to properly address the arguments raised by the parties, we supplement the
    record with SCI’s objection.
    SCI’s objection indicates that, in addition to the billing rate for Ms. Sweeney and the
    amount of time she expended at trial, SCI objected to several other items of attorneys’ fees,
    including: (1) fees for time spent by Ms. Karnes’s attorneys on various motions on which she did
    not prevail and (2) fees for time spent by various attorneys (other than Ms. Sweeney) that
    duplicated work performed by other attorneys.
    SCI also objected to the various items of costs that Ms. Karnes sought to recover,
    including: (1) the costs of a forensic evaluation performed by a Dr. Seig as well as expert witness
    fees for Dr. Seig’s trial testimony; (2) expenses incurred for the airfare of three witnesses who
    testified at trial–Mr. and Mrs. Connerly and Mr. Detlinger; (3) the $5.50 fee that Ms. Karnes
    incurred for obtaining a copy of the district court’s docket statement; and (4) fees incurred for an
    investigator who was used to locate witnesses.
    7
    SCI maintains that because the district court awarded fees and costs to Ms. Karnes
    in exactly the amount that SCI requested, we may infer that the district court simply
    adopted SCI’s response to Ms. Karnes’s motion for attorneys’ fees and costs. Because of
    the time and expense involved in remanding disputes over attorneys’ fees, see 
    Mares, 801 F.2d at 1205
    (10th Cir. 1986), this argument has some appeal. However, for several
    reasons, we are not persuaded.
    First, the district court’s orders do not expressly adopt SCI’s reasoning. Absent a
    discussion of any grounds for the fee reduction other than Ms. Sweeney’s hourly rate and
    the duplication involved in some of hours that she expended, the district court’s orders do
    not allow us to assess the soundness of the its decision. Cf. Smith v. Freeman, 
    921 F.2d 1120
    , 1124 (10th Cir. 1990) (remanding part of a claim for attorneys’ fees because the
    district court offered no rationale for its decision). Significantly, SCI has cited no
    authority establishing an exception to the district court’s obligation to explain the basis of
    its ruling.
    Moreover, we note that SCI objected to several of the items of fees and costs on
    multiple grounds and that some of these arguments appear unsupported by the applicable
    law. For example, with regard to the forensic evaluation and trial testimony of Dr. Seig,
    SCI argued that “expert witness fees are not awardable as costs.” SCI’s Objection at 6.
    In the alternative, SCI argued that Dr. Seig’s testimony was not sufficiently reliable. See
    
    id. Contrary to
    SCI’s first argument, expert witness fees may be recovered in Title VII
    8
    cases in certain circumstances. See 42 U.S.C. § 2000e-5(k) (“In any action or proceeding
    under this subchapter the court, in its discretion, may allow the prevailing party, other
    than the Commission or the United States, a reasonable attorney’s fee (including expert
    fees) as part of the costs . . . .”) (emphasis added). However, because the district court
    did not address this particular objection, we cannot determine whether it reduced Ms.
    Karnes’ award because it thought that expert witness fees could not be awarded as costs,
    because it concluded that Dr. Seig’s testimony was not reliable, or for some other reason.
    As another example, we note that SCI objected to certain deposition costs, see
    SCI’s Objection at 6, arguing that Ms. Karnes was not entitled to recover these costs
    because the clerk had not awarded them as part of the bill of costs and because they were
    “not appropriate costs under 28 U.S.C. § 1920.” 
    Id. Section 1920
    authorizes the
    prevailing party to recover the costs of taking and transcribing depositions necessary for
    the litigation. See 28 U.S.C. § 1920; Callicrate v. Farmland Indus., Inc., 
    139 F.3d 1336
    ,
    1339 (10th Cir. 1998). However, because the district court did not specifically address
    this objection, we cannot determine whether it disallowed these items of costs because it
    deferred to the clerk’s determination in the bill of costs, because it concluded that § 1920
    does not authorize the award of deposition costs, because it found that the particular
    depositions in question were not reasonably necessary for the litigation, or for some other
    reason.
    Accordingly, the district court’s orders do not provide us with an adequate basis to
    9
    review its decision. See 
    Smith, 921 F.2d at 1124
    (10th Cir. 1990) (remanding to the
    district court when the court did not explain its denial of a claim for time spent preparing
    a reply brief); 
    Moe, 727 F.2d at 936
    (stating that when it denies a motion for costs, “it is
    incumbent upon the trial court . . . to state its reasons so that the appellate court will have
    a basis for judging whether the trial court acted within its discretion”). We therefore
    conclude that this case must be remanded to the district court for further proceedings.
    III. CONCLUSION
    Although we conclude that this case must be remanded to the district court, we
    emphasize that “[t]here is no requirement . . . that district courts identify and justify each
    disallowed hour [of a fee request]. Nor is there any requirement that district courts
    announce what hours are permitted for each legal task.” 
    Mares, 801 F.2d at 1202
    .
    Nevertheless, even though we afford them a great deal of discretion in these matters, the
    district courts must still provide an explanation of the award that is sufficient to allow us
    to determine whether they have abused their discretion. Here, aside from the district
    court’s assessment of Ms. Sweeney’s hourly rate and its determination that some of the
    time that she expended at trial duplicated the work of other attorneys, we have nothing to
    review but a dollar amount. That is not sufficient.
    We therefore vacate the district court’s August 8, 1996 order awarding fees and
    costs to Ms. Karnes and remand the case to the district court for further proceedings
    10
    consistent with this order and judgment.
    Entered for the Court,
    Robert H. Henry
    United States Circuit Judge
    11