United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on plaintiffs Motion for
Attorneys' Fees. Doc. 22. After holding an evidentiary
hearing on October 17, 2017, the court granted plaintiff
Marjorie Townley's Motions for Default Judgment against
defendants The Servicemaster Company, LLC
("Servicemaster") and Terminix d/b/a Schendel Pest
Services because neither defendant had filed an Answer after
plaintiff served them with the summons and Complaint. Doc.
20. And, on October 25, 2017, the court entered a default
judgment against defendants in the amount of $29, 261.68 for
back pay damages, $86, 400 for front pay damages, $50, 000
for emotional distress damages, and $100, 000 for punitive
damages. Doc. 21. The court also ordered plaintiff to submit
any motion for attorney's fees and costs consistent with
Fed.R.Civ.P. 54(d) and our local rule, D. Kan. Rule 54.2,
within 14 days of the date of its October 25, 2017 Order.
with the court's Order, plaintiff has filed a Motion for
Attorneys' Fees. Doc. 22. Plaintiff's motion
acknowledges that our local rule requires a party seeking
attorneys' fees to meet and confer with the opposing
party about the fee request. See D. Kan. Rule
54.2(a) ("A party who moves for statutory attorney's
fees pursuant to Fed.R.Civ.P. 54(d)(2) must promptly initiate
consultation with the other party or parties."); see
also D. Kan. Rule 54.2(c) (explaining that when the
parties are unable to agree on a fee award, "the moving
party must file the following within 30 days of filing the
motion: (1) a statement that, after consultation in
accordance with this rule, the parties have been unable to
reach an agreement with regard to the fee award; and (2) a
memorandum setting forth the factual basis for each criterion
that the court is asked to consider in making an
award."). But, plaintiff asks the court to excuse her
from this requirement because defendants have defaulted and
there is no other party for plaintiff to consult with about
her fee application.
court finds good reason to excuse plaintiff from Rule
54.2's meet and confer requirement here. Our court has
required compliance with the requirement in at least one
other default judgment case, but that case involved a
corporation who had appeared previously through counsel and
then defaulted. See Albert v. Wesley Hosp. Health
Serv., No. 00-2067-KHV, 2001 WL 777072, at *1 (D. Kan.
July 3, 2001). Here, neither defendant has appeared in this
lawsuit in person or by representative. Plaintiff thus has no
party to contact to initiate the meet and confer process. The
court thus excuses plaintiff from this requirement here.
Motion for Attorneys' Fees seeks $28, 937.50 in legal
fees under Title VII. Title VII allows a prevailing party to
recover "reasonable attorney's fee (including expert
fees) as part of the costs." 42 U.S.C. §
2000e-5(k). To secure an attorney fee award under Title VII,
'"a claimant must prove two elements: (1) that the
claimant was the 'prevailing party' in the
proceeding; and (2) that the claimant's fee request is
'reasonable.'" Flitton v. Primary
ResidentialMortg., Inc., 614 F.3d 1173, 1176 (10th Cir.
2010) (quoting Robinson v. City of Edmond, 160 F.3d
1275, 1280 (10th Cir. 1998)). Plaintiff satisfies both
plaintiff is the prevailing party because the court has
entered default judgment in her favor on both of her Title
VII claims. See Doc. 20; see also Fox v.
Pittsburgh State Univ., ___ F.Supp.3d___, 2017 WL
2735475, at *3 (D. Kan. June 26, 2017) ("A prevailing
party is one that succeeds 'on any significant issue in
litigation which achieves some of the benefit the part[y]
sought in bringing suit.'" (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983))).
the court concludes that plaintiffs attorney fee request is a
reasonable one. The Tenth Circuit has instructed that
"[t]he most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate." Flitton, 614 F.3d at 1176 (first citing
Hensley, 461 U.S. at 433; then quoting
Robinson, 160 F.3d at 1281 ("[A] court must
begin by calculating the so-called 'lodestar amount'
of a fee, . . . [which] is the product of the number of
attorney hours 'reasonably expended' and a
'reasonable hourly rate.'")). The party
requesting attorney fees bears the burden to prove the amount
of hours spent on the case and the appropriate hourly rates.
United Phosphorus, Ltd. v. Midland Fumigant, Inc.,
205 F.3d 1219, 1233 (10th Cir. 2000). Once an applicant
satisfies this burden, the court presumes that the lodestar
figure is a reasonable fee. Robinson, 160 F.3dat
determining the lodestar, the court may adjust that figure
upward or downward '"to account for the
particularities of the suit and its outcome.'"
Fox, 2017 WL 2735475, at *3 (quoting Zinna v.
Congrove, 680 F.3d 1236, 1242 (10th Cir. 2012)). This
approach requires consideration of the factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), abrogated on other grounds by
Blanchard v. Bergeron, 489 U.S. 87 (1989). Those factors
are: (1) time and labor required; (2) novelty and difficulty
of the questions presented in the case; (3) skill requisite
to perform the legal service properly; (4) preclusion of
other employment by the attorneys due to acceptance of the
case; (5) customary fee; (6) whether the fee is fixed or
contingent; (7) any time limitations imposed by the client or
circumstances; (8) amount involved and results obtained; (9)
experience, reputation, and ability of the attorneys; (10)
undesirability of the case; (11) nature and length of the
professional relationship with the client; and (12) awards in
similar cases. Id. at 717-19.
the court may consider each of these factors, it need not
consider those factors '"subsumed within the initial
calculation of hours reasonably expended at a reasonable
hourly rate.'" Fox, 2017 WL 2735475, at *5
(quoting Mathiason v. Aquinas Home Health Care,
Inc., 187 F.Supp.3d 1269, 1281 (D. Kan. 2016)). This is
so because "[t]he lodestar calculation is meant to be
the primary consideration when awarding fees rather than the
Johnson factors." Id. (citing
Anchondo v. Anderson, Crenshaw & Assocs., LLC,
616 F.3d 1098, 1103 (10th Cir. 2010)).
support her fee request, plaintiff has submitted her
counsel's billing records along with affidavits attesting
to the reasonableness of the time counsel devoted to
plaintiff's lawsuit and providing information about
counsel's experience, reputation, and ability. Anne
Schiavone, an attorney with 18 years' experience
representing plaintiffs in personal injury and employment
related matters, billed 30 hours of time to the litigation at
an hourly rate of $450 for a total amount of $13, 500.
Kathleen Mannion, an attorney with six years' experience
litigating employment discrimination matters, billed 47.5
hours to the litigation at an hourly rate of $325 for a total
amount of $15, 437.50. Together, Ms. Schiavone and Ms.
Mannion's fees total plaintiff's requested award of
reviewing the billing records, the court finds that the hours
recorded are reasonable. Each specific task recorded is a
proper charge for this Title VII matter, and the time spent
on each task is reasonable. The court also finds that the
hourly rates, though on the high end of the approvable range,
are reasonable in light of other, similar hourly rates
approved by our court in employment cases involving counsel
with similar experience. See, e.g., Barbosa v. Nat'l
Beef Packing Co., LLC, No. 12-2311-KHV, 2015 WL 4920292,
at *10 (D. Kan. Aug. 18, 2015) (Judge Vratil found hourly
rates ranging from $180 to $425 reasonable, depending on each
attorney's level of experience, in an FLSA case);
Seamands v. Sears Holding Corp., No. 09-2054-JWL,
2011 WL 884391, at *14-16 (D. Kan. Mar. 11, 2011) (Judge
Lungstrum found the following hourly rates reasonable in a
class action lawsuit for unpaid sales incentive compensation:
$400 per hour for a lawyer with more than 30 years'
experience, $290 per hour for lawyers with more than 20
years' experience, $270 for a partner with 11 years'
experience, and $175 for associates with "lesser
court thus concludes that plaintiff has supported her fee
request adequately with the submitted billing records and
affidavits. The court also has considered the
Johnson factors discussed above. It finds that the
majority of those factors are neutral ones. None of the
Johnson factors present any reason for the court to
adjust the lodestar upward or downward. The court thus finds
that the requested fee award is a reasonable one.
Accordingly, the court grants plaintiff's Motion for
Attorneys' Fees and awards plaintiff $28, 937.50 in
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's Motion for Attorneys' Fees (Doc. 22) is
granted. The court awards $28, 937.50 to plaintiff in