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Laney v. Getty

United States District Court, E.D. Kentucky, Central Division, Lexington

October 14, 2014

E. SCOTT LANEY, Plaintiff,
v.
RICHARD A. GETTY, et al., Defendants.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

Previously, the Court granted summary judgment in favor of Defendants Richard Getty, Albert Borne, Stoner Mill Farm LLC, The Getty Law Group PLLC, and Borne Investigations, Inc., concerning Plaintiff E. Scott Laney's wrongful termination claim under 29 U.S.C. § 2002(3). [Record No. 106] The Court subsequently granted summary judgment in favor of Laney on his remaining 29 U.S.C. § 2002(1) claim and denied the defendants' request for costs and attorneys' fees. [Record No. 117] Laney was awarded nominal damages of $1.00. [Record No. 118] The matter is currently pending for consideration of the plaintiff's motion for attorneys' fees and costs under the Employee Polygraph Protection Act, 29 U.S.C. § 2001 et seq. ("EPPA"). [Record No. 122] The defendants oppose the motion. [Record No. 125] Having further reviewed this matter, the plaintiff will be awarded $54, 266.58 in attorneys' fees and $5, 079.50 in costs.[1]

The defendants continue to argue against an award of any attorneys' fees. [Record No. 125] The Court has considered this argument [Record No. 117] and reconsidered it at the defendants' request [Record No. 126] and declines to address it further. Title 29 of the United States Code, § 2005(c)(3), provides that "[t]he court, in its discretion, may allow the prevailing party (other than the United States) reasonable costs, including attorney's fees." The Court entered judgment against the defendants in favor of Laney on his § 2002(1) claim. [Record No. 117] Therefore, Laney is a prevailing party. Hensley v. Eckerhart, 461 U.S. 424, 425 (1983) (a plaintiff may be considered a prevailing party if he succeeds on any significant issue in litigation which achieves some of the benefit the party sought). The Supreme Court has held that a prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. at 429 (internal quotation marks omitted). Further, the Sixth Circuit has indicated that, absent special circumstances, a district court does not have discretion and must award attorneys' fees.[2] Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. Of Educ., 360 F.3d 604, 611 (6th Cir. 2004).

I. Timing of the Motion

As a threshold matter, the defendants contend that the plaintiff's motion is premature because the Court's June 23, 2014 Judgment is not final. [Record No. 125] According to the defendants, the motion to alter or amend under Federal Rule of Civil Procedure 59 tolled the deadline for filing an appeal and destroyed the finality of the Court's Judgment. The defendants rely on Local Rule 54.4. However, the rule states, in relevant part, that a motion for attorneys' fees "must be filed no later than thirty (30) days after entry of judgment." LR 54.4. As the plaintiff correctly argues, this language does not preclude a motion for attorneys' fees earlier than thirty days after the entry of final judgment. Although the Sixth Circuit has found that a timely-filed Rule 59 motion destroys the finality of judgment and extends the deadline for filing motions for attorneys' fees, it has not suggested that the filing of a motion for fees before the deadline is premature. Miltimore Sales v. Int'l Rectified, Inc., 412 F.3d 685 (6th Cir. 2005). Regardless, the Court has already denied the motion to alter, amend, or vacate, rendering this argument moot. [Record No. 126] In short, the defendant's argument that the motion is premature is without merit.

II. Lodestar Amount

Given the scarcity of case law under the EPPA, it is not surprising that the Court must look outside of cases interpreting the act to properly frame the plaintiff's motion. Cases involving attorneys' fees in employment discrimination contexts are particularly instructive. Courts within the Sixth Circuit calculate attorney fees in employment discrimination cases using the "lodestar" method. Imwalle v. Reliance Med. Prods., 515 F.3d 531, 552 (6th Cir. 2008) (citing Hensley, 461 U.S. at 433) (applying the lodestar method in the Age Discrimination in Employment Act, 29 U.S.C.S. § 623(d) and Title VII, 42 U.S.C. § 2000e-3(a), context).

The Court's primary concern in awarding attorney's fees is the reasonableness of the fee. A reasonable fee is that which "adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers." Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). In determining the amount of an attorneys' fee award, courts begin by calculating the fee applicant's "lodestar, " which is the "proven number of hours reasonably expended on the case by an attorney, multiplied by a reasonable hourly rate." Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005) (citing Hensley, 461 U.S. at 435). As discussed below, the reasonable hourly rate is $300.00 for Michael Cox and $180.00 for David Cox. Michael Cox reasonably expended 289.7 hours, while David Cox reasonably expended 5.0 hours. Thus, the lodestar amount of attorneys' fees is $87, 810.00.[3]

A. Reasonable Hourly Rate

Laney seeks compensation based on his attorneys' hourly rate. [Record No. 122] The first step in determining a reasonable rate is to look at the "prevailing market rate in the relevant community." Adcock-Ladd, 227 F.3d at 350. This is defined as the rate which "lawyers of comparable skill and experience can reasonably expect to command within the venue of the court record." Id. Under this standard, the Court looks at the prevailing hourly rates for practitioners in the Eastern District of Kentucky.

The requested hourly rates reflect counsels' respective training, background, experience, and skill. Michael J. Cox, lead counsel for the plaintiff, has over 25 years of experience, concentrated in trial and litigation with extensive experience in employment cases. Michael Cox handled the vast majority of the billable hours in the case and brought significant experience and ability to bear on the case. He bills his clients at $300.00 an hour. [Record No. 113-1] David Brent Cox, assistant counsel, has practiced for over five years. He bills at $200.00 an hour. [ Id. ] The plaintiff's counsel has submitted affidavits and case law touting the reasonableness of these hourly rates for attorneys of comparable experience in the community. [ Id. ] Further, the defendants have not produced evidence to suggest that these rates are unreasonable.

However, district courts are not required to adopt the attorneys' fee rates charged by the highest paid attorneys in town to their most lucrative clients. See Maxwell's Pic-Pac, Inc. v. Dehner, 2013 U.S. Dist. LEXIS 34596, at *13 (W.D. Ky. Mar. 13, 2013). The rates requested in this case operate simply as a starting point from which the Court determines the appropriate market rate for attorneys with sufficient competence and experience to pursue their client's goals. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007). To this end, the Court reviews recent attorneys' fees cases. The Court has accepted rates of $300.00 and $150.00 for partner- and associate-level experience, respectively. Am. Canoe Ass'n v. City of Louisa, 683 F.Supp.2d 480, 488 (E.D. Ky. 2010). See also ACLU of Ky. v. McCreary Cnty., 2009 U.S. Dist. LEXIS 22206, at *4 (E.D. Ky. Mar. 13, 2009) ($300.00 hourly rate for experienced attorney in Kentucky and $180.00 was reasonable for an associate in Kentucky in 2009).

Based on the foregoing, the requested $300.00 is a reasonable hourly rate for an experienced attorney such as Michael Cox. However, the Court concludes that $200.00 is an unreasonable hourly rate for an attorney in Kentucky with only five years of experience. As a result, David Cox's hourly rate will be reduced to $180.00 per ...


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