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Tramp v. Associated Underwriters, Inc.

United States District Court, D. Nebraska

October 16, 2015




This matter is before the Court on the Plaintiff’s Motion for Attorney’s Fees and Costs (Filing No. 142). Plaintiff Marjorie Tramp (“Tramp”) has submitted an Index of Evidence (Filing No. 144) and Supplemental Index (Filing No. 150) in support of the Motion, seeking attorney’s fees in the amount of $151, 688.00 and costs in the amount of $6, 772.12, for an award of fees and costs in the sum of $158, 460.12.

Defendant Associated Underwriters, Inc., (“Associated Underwriters”) does not dispute that Tramp is entitled to an award of attorney’s fees and costs as a prevailing party under the Age Discrimination in Employment Act (“ADEA”) (29 U.S.C. § 626, et seq.). Nor does Associated Underwriters dispute that the hourly rates charged by Tramp’s lawyers, paralegals, and law clerks are reasonable. Associated Underwriters does suggest that the amount requested by Tramp should be reduced due to (1) overbilling or duplication, (2) charges for administrative or clerical work, (3) inadequate record-keeping, (4) billing for work done with respect to claims on which Tramp did not prevail, and (5) claims for costs that are improper or duplicative.


Tramp’s employment with Associated Underwriters was terminated on February 3, 2009. She filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination based on age and disability, and received a right-to- sue letter from the EEOC on July 28, 2011. She then engaged John Weis as her legal counsel, and he represented her throughout these proceedings. Her Complaint (Filing No. 1) alleged harassment, retaliation, and termination based on age, race, disability, and sex, in violation of Title VII of the Civil Rights Act (42 U.S.C. § 2000e-5), the Americans with Disabilities Act, 42 U.S.C. §§ 12102. (“ADA”), 42 U.S.C. § 1981, and the ADEA.

During the discovery phase of litigation, Tramp abandoned her Title VII claims based on sex and race discrimination. Associated Underwriters moved for summary judgment on the remaining ADA and ADEA claims on March 15, 2013. In Plaintiff’s brief in opposition to Associated Underwriters’ motion for summary judgment (Filing No. 53), Tramp’s attorney failed to follow this Court’s local rule NECivR 56.1(b)(1), and did not respond to Associated Underwriters’ separately numbered material facts. Accordingly, those facts were deemed admitted, and the Court granted summary judgment for Associated Underwriters on Tramp’s ADA and ADEA claims. Tramp appealed to the U.S. Court of Appeals for the Eighth Circuit, which affirmed the summary judgment with respect to the ADA claim, but reversed and remanded on the ADEA claim, exercising “lenity” in its consideration of Tramp’s statement of facts despite her attorney’s failure to follow the local rule. Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 798-800 (8th Cir. 2014).

A jury trial began on June 16, 2015, and continued to June 19, 2015, when the jury reached a verdict in favor of Associated Underwriters on Tramp’s ADEA discrimination claim, but in Tramp’s favor on her ADEA retaliation claim in the amount of $128, 680.78, and determined that Associated Underwriters’ conduct was willful. (Filing No. 130).


“The 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, ” although a district court has discretion to adjust the fee to account for other considerations, such as the nature of the results obtained. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”

Miller v. Dugan, 764 F.3d 826, 830-31 (8th Cir. 2014) (internal citations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 & 437 (1983)).

“[T]he prevailing market rates in the relevant community” serve as the district court’s guide in determining what is a “reasonable” hourly rate. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). “[A] reasonable hourly rate is the prevailing market rate, that is, ‘the ordinary rate for similar work in the community where the case has been litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002) (quoting Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001)). In civil rights cases, “a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Perdue, 559 U.S. at 552. “[W]hen fixing hourly rates, courts may draw on their own experience and knowledge of prevailing market rates.” Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005).

Courts may reduce attorney hours and fees for duplication or inefficiency where more than one attorney is used. A.J. by L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995). “Time spent by two attorneys on the same general task is not, however, per se duplicative” and "[c]areful preparation often requires collaboration and rehearsal.” Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998).

“In all events, ‘hours that are excessive, redundant, or otherwise unnecessary’ must be excluded.” El-Tabech v. Clarke, 616 F.3d 834, 842 (8th Cir. 2010) (quoting Hensley, 461 U.S. at 434).

“[R]easonable out-of-pocket expenses of the kind normally charged to clients by attorneys” are included in a reasonable attorneys’ fee award. Pinkham v. ...

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