United States District Court, D. Arizona
Amie M. Gressett, Plaintiff,
Central Arizona Water Conservation District, Defendant.
JAMES A. TEILBRORG SENIOR UNITED STATES DISTRICT JUDGE
Pending before the Court are Plaintiff Amie Gressett’s Motion for Attorneys’ Fees and Related Non-Taxable Expenses, (Doc. 185), and Defendant Central Arizona Water Conservation District’s Motion for Leave to Supplement its Response, (Doc. 204). The Court now rules on the motions.
Ms. Gressett seeks an award of $702, 465 in attorneys’ fees, as well as an additional $51, 542.45 in non-taxable expenses (Doc. 186 at 8). The parties do not dispute that (a) the fee award is governed by 29 U.S.C. § 2617(a)(3), (b) Ms. Gressett was successful on the merits of her action, and (c) Ms. Gressett is entitled to reasonable attorneys’ fees. (Doc. 194 at 2; Doc. 202 at 1-2). Rather, the parties dispute the amount of attorneys’ fees the Court should award to Ms. Gressett. (Doc. 186; Doc. 194; Doc. 202). Central Arizona Water Conservation District (“CAP”) argues that the Court should reduce the fee award by at least $309, 121 for several reasons (Doc. 194 at 18), each of which is discussed below. Additionally, CAP argues that the Court should not award more than $16, 656.25 in non-taxable expenses, also addressed below. (Doc. 194 at 18).
Assuming familiarity with the factual and procedural history of this action, the Court will recount only those aspects of this litigation that are relevant to the pending issue of attorneys’ fees and costs. See Gressett v. Cent. Ariz. Water Conservation Dist., 2015 WL 1505774 (D. Ariz. Mar. 31, 2015); Gressett v. Cent. Ariz. Water Conservation Dist., 2014 WL 4053404 (D. Ariz. Aug. 14, 2014). Ms. Gressett brought a Family and Medical Leave Act (“FMLA”) claim against CAP in January 2012. (Doc. 1). In March 2015, the jury awarded Ms. Gressett $140, 000 in compensatory damages. (Doc. 174). The Court awarded Ms. Gressett an additional $140, 000 in liquidated damages and $80, 360.50 in front pay, (Doc. 177), and entered judgment in her favor, (Doc. 178).
II. Ms. Gressett’s Motion for Attorneys’ Fees and Related Non-Taxable Expenses
Ms. Gressett requests a total award of $754, 007.45 in attorney fees and expenses. (Doc. 186 at 8). CAP argues that the Court should reduce Ms. Gressett’s award on several different grounds, which the Court now addresses.
A. Contingent Fee Agreement
CAP argues that Ms. Gressett’s fee agreement constitutes an impermissible enhancement of a fee award. (Doc. 194 at 4). This argument, however, appears to be the result of a misunderstanding of both the fee agreement and Ms. Gressett’s claim for fees. CAP incorrectly claims that the fee agreement entitles Ms. Gressett’s counsel to 40% of the total recovery, as well as to any fees that may be awarded by the Court. (Doc. 194 at 3). Rather, the agreement allows Ms. Gressett’s counsel to take either 40% of the total recovery or the fees awarded by the Court, whichever is greater. (Doc 186-1 at 7).
CAP correctly notes that increasing a fee award for a contingency fee is generally an impermissible enhancement. (Doc. 194 at 4). However, Ms. Gressett is not seeking a contingency enhancement to the lodestar calculation. Therefore, the Court will not reduce Ms. Gressett’s fees on that basis.
B. Reasonableness of Attorneys’ Fees
The FMLA requires that the Court “allow a reasonable attorney’s fee.” 29 U.S.C. § 2617(a)(3). CAP raises several objections to the reasonableness of Ms. Gressett’s requested fees.
1. Attorneys’ Fees Incurred by Ms. Gressett Prior to Filing a Notice of Appearance and by Prior Counsel
Ms. Gressett claims entitlement to fees incurred as early as February 2010, when her first attorney sent CAP a demand letter. (Doc. 186 at 8). CAP cites Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir. 1999), to support the proposition that “pre-suit fees may be awarded . . . only for ‘discrete’ work ‘that was both useful and of a type ordinarily necessary to advance the . . . litigation to the stage it reached.’” Schneider, 187 F.3d at 33 (citations omitted) (ruling on 42 U.S.C. § 1988); (Doc. 194 at 13). The Court finds the fees incurred by Ms. Gressett’s current counsel prior to filing a notice of appearance were reasonable and necessary to advance the litigation. The Court will award those fees. However, as the fees associated with Ms. Gressett’s various prior attorneys were not included in the electronic spreadsheet as the Court ordered, the Court declines to permit those fees. Therefore, the Court will reduce the award of fees by $3, 850.
2. Attorneys’ Fees for Settlement Efforts
CAP objects to Ms. Gressett’s counsel billing 108.7 hours and $32, 570 in total mediation fees to prepare for and attend the two unsuccessful mediations, claiming that the amount of fees is unreasonable and that Ms. Gressett should bear her own fees because her unreasonable settlement positions are to blame for the failure of the mediation process. (Doc. 194 at 5-7).
As a preliminary matter, the Court finds that the plain language of § 2617(a)(3), which requires the Court “allow a reasonable attorney’s fee” to permit the recovery of reasonable attorneys’ fees associated with mediation efforts. 29 U.S.C. § 2617(a)(3). Consequently, the Court will examine the reasonableness of Ms. Gressett’s claimed hours and fees for mediation with an eye towards their connection to resolving her claim.
CAP argues the amount of fees claimed is unreasonable and Ms. Gressett’s unreasonable settlement positions are to blame for the failure of the mediation process. (Doc. 194 at 5-7). These two closely related contentions encapsulate the argument that Ms. Gressett’s counsel’s time, billed as related to mediation, was not reasonably utilized to advance the resolution of Ms. Gressett’s claim and therefore is not recoverable. When deciding the reasonable number of hours expended, a court may consider: “(1) the novelty and complexity of the issues[;] (2) the special skill and experience of counsel [;] (3) the quality of representation[;] and (4) the results ...