     Case: 11-60254     Document: 00511710602         Page: 1     Date Filed: 12/30/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        December 30, 2011

                                     No. 11-60254                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TIFFANY ALEXANDER; SANDRA HAWKINS; JACQUELINE MOORE;
STACY PROPHET,

                                                  Plaintiffs–Appellants
v.

CITY OF JACKSON MISSISSIPPI; RAYMOND MCNULTY, in his individual
and official capacities; LUTHER THOMPSON, in his individual and official
capacities; LARRY SMITH; HOWARD TAYLOR; HERMAN WATLEY,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:04-CV-614


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        This appeal concerns the district court’s award of attorneys’ fees to counsel
for the Plaintiffs–Appellants (“counsel”) for their work in obtaining a settlement
in a case involving the Plaintiffs–Appellants’ (“plaintiffs”) claims for sexual
harassment and retaliation under Title VII of the Civil Rights Act of 1964 and


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60254    Document: 00511710602      Page: 2   Date Filed: 12/30/2011



                                  No. 11-60254

42 U.S.C. § 1983. The district court awarded counsel $263,901.78 in fees and
costs out of the $1,237,812.26 that counsel sought. Plaintiffs have timely
appealed seeking review of that award.
                              I. BACKGROUND
      The underlying litigation has a long procedural history, much of which is
immaterial to this appeal. In July 2003, each of the four plaintiffs filed sexual
harassment charges with the Equal Employment Opportunity Commission. In
May 2004, the EEOC issued each of the plaintiffs a “right to sue letter,” and the
underlying litigation was commenced in August 2004. Plaintiffs sought more
than $1.2 million in damages as well as other equitable relief. After a month-
long trial in May 2007, the jury awarded plaintiffs approximately $750,000 in
damages. The district court, in May 2008, granted Defendants–Appellees’
motion for new trial based on counsel’s improper conduct and oddities with the
jury award.    A second trial was scheduled, but before it was commenced,
plaintiffs settled for $250,000 and other non-monetary relief. During the course
of the litigation and settlement, counsel billed for the time of ten attorneys from
two firms (Woodley & McGillvary of Washington, D.C. and Louis H. Watson,
P.A. of Mississippi). After settlement, a dispute remained (and is the subject of
this appeal) over the amount of attorneys’ fees that counsel was entitled to.
                       II. STANDARDS OF REVIEW
      In determining the appropriateness of awards of attorneys’ fees, district
courts engage in a two-step process laid out in Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). The first step requires the district court to “determine the
reasonable number of hours expended on the litigation and the reasonable
hourly rates for the participating lawyers.      Then, the district court must
multiply the reasonable hours by the reasonable hourly rates.” La. Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).          This first-step
determination is known as the lodestar calculation. Id. As “[d]eterminations of

                                        2
   Case: 11-60254    Document: 00511710602       Page: 3    Date Filed: 12/30/2011



                                   No. 11-60254

hours and rates are questions of fact,” we review a district court’s lodestar
calculation for clear error. Id. In the second-step, the lodestar, which is
presumptively reasonable, can be adjusted upward or downward by the district
court based on the district court’s considerations of the Johnson factors. Watkins
v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993). In Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974), we laid out twelve factors to be
considered in deciding whether the lodestar ought to be adjusted. See id. at 718.
Those factors are:

      (1) the time and labor required for the litigation; (2) the novelty and
      difficulty of the questions presented; (3) the skill required to
      perform the legal services properly; (4) the preclusion of other
      employment by the attorney by acceptance of the case; (5) the
      customary fee; (6) whether the fee is fixed or contingent; (7) time
      limitations imposed by the client or circumstances; (8) the amount
      involved and the result obtained; (9) the experience, reputation and
      ability of the attorneys; (10) the “undesirability” of the case; (11) the
      nature and length of the professional relationship with the client;
      and (12) awards in similar cases.

No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 500 (5th Cir. 2001)
(citing Johnson, 488 F.2d at 718). We review any adjustment based on the
Johnson factors for abuse of discretion. La. Power & Light, 50 F.3d at 329. “We
cannot overemphasize the concept that a district court has broad discretion in
determining the amount of a fee award. This tenet is ‘appropriate in view of the
district court’s superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are factual matters.’”
Associated Builders & Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919
F.2d 374 (5th Cir. 1990) (quoting Hensley, 461 U.S. at 437). Finally, we review
a district court’s grant of litigation costs for abuse of discretion. Gagnon v.
United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010)



                                         3
     Case: 11-60254   Document: 00511710602     Page: 4   Date Filed: 12/30/2011



                                   No. 11-60254

                               III. DISCUSSION
        Plaintiffs present five issues for review in this court: (1) whether the
district court erred in excluding the time of certain Woodley & McGillvary
attorneys as duplicative; (2) whether the district court erred in reducing the
number of hours billed by Louis H. Watson attorneys because it was not the lead
firm; (3) whether the district court erred in excluding all hours associated with
preparing for the second trial; (4) whether the district court erred in downwardly
departing due to the “results obtained” by counsel; and (5) whether the district
court erred in denying reimbursement of certain costs.
1.      Woodley & McGillvary Duplicative Exclusion
        The bulk of the work done in this litigation was done by Molly Elkin and
Ellen Eardley of Woodley & McGillvary—combined, they billed for over 2700
hours. In addition to Elkin’s and Eardley’s hours, counsel billed for eight other
Woodley & McGillvary attorneys whose fees amounted to over $288,000. “If
more than one attorney is involved, the possibility of duplication of effort along
with the proper utilization of time should be scrutinized.” Johnson, 488 F.2d at
717. Here, the district court did just that. For example, the district court
excluded most of the hours billed by Megan Mechak because she only entered an
appearance after the mistrial was declared and

        focused primarily on preparation for the second trial which never
        occurred. Her time sheets cite “Review and analyze trial transcript”
        as well as work on multiple motions in limine. Between October
        2008 and March 2009, Attorney Mechak expended, she says,
        approximately 43.3 hours working on the fee petition. The court
        allows the time spent by Attorney Mechak for work on the fee
        petition and excludes all other hours expended by her as duplicative
        and/or excessive.

Alexander v. City of Jackson, Miss., No. 3:04-CV-614, 2011 WL 1059293, at *10
(S.D. Miss. Mar. 21, 2011). We find no clear error in the district court’s


                                         4
     Case: 11-60254   Document: 00511710602     Page: 5   Date Filed: 12/30/2011



                                  No. 11-60254

reduction of the eight Woodley & McGillvary attorneys’ hours due to their
duplicative nature.
2.      Louis H. Watson Reduction
        Louis H. Watson, P.A. served as local counsel in this matter. For the two
attorneys from this firm that worked on the case, the district court found “[t]heir
law firm[] is entitled to some recompense for preparation and trial, but their law
firm was not the lead firm [so t]he court grants them their hours with a thirty
percent (30%) reduction.” Id. at *12. This is presumably because the only
participation during trial by Louis Watson and Nick Norris was the brief
cross-examination of two defense witnesses (one each). Nonetheless, each local
counsel submitted bills for sitting in trial eight hours every day of the five-week
trial. We do not find any clear error in the district court’s reduction of Watson’s
and Norris’s hours.
3.      Hours Dedicated to Preparing for the Second Trial
        Plaintiffs claim that the district court erred in denying fees associated
with preparation for the second trial. In this section of their brief, plaintiffs
attack the district court’s decision to grant a new trial, which the district court
did in part due to counsel’s improper conduct in the first trial. Id. at *2. The
district court’s grant of the motion for new trial is not before us and will not be
reviewed; so far as we are concerned, that decision is final and unimpeachable.
In its order, the district court discussed our decision in Abner v. Kansas City
Southern Railway Co., 541 F.3d 372 (5th Cir. 2008), where we held that “the
district court may award attorney’s fees and costs for a first trial even when it
ends in mistrial and a second trial is necessary.” Alexander, 2011 WL 1059293,
at *8–9.    Here, the district court found that counsel was at least partly
responsible in necessitating the second trial. Id. at *2. In Abner, we said that
the implications from our survey of our sister circuits’ cases is that “if the
plaintiff’s unreasonable behavior did not cause the first trial verdict to be

                                        5
     Case: 11-60254   Document: 00511710602     Page: 6   Date Filed: 12/30/2011



                                  No. 11-60254

vacated, a plaintiff may receive attorneys’ fees for the expenses incurred during
a trial that was later vacated.” Abner, 541 F.3d 381–82. The converse of this
implication is what the district court used in the present case: where counsel’s
conduct causes, in whole or in part, the need for the district court to conduct a
second trial, the fees and costs associated with that second trial cannot be
recouped. See Alexander, 2011 WL 1059293, at *8–9. We do not find clear error
in the district court’s extension of the principles of Abner to this case.
4.      Downward Departure Based on “Results Obtained”
        Plaintiffs further claim that the district court abused its discretion in
reducing the lodestar by sixty percent in light of results obtained. Due to the
broad discretion afforded to the district court in determining fee awards, “[w]e
. . . inspect the district court’s lodestar analysis only to determine if the court
sufficiently considered the appropriate criteria.” La. Power & Light, 50 F.3d at
329. It is clear that the district court considered each of the twelve Johnson
factors in reaching its final fee award. Alexander, 2011 WL 1059293, at *14–16.
In downwardly departing from the lodestar, the district court stated, “The
results obtained cannot be said to encompass all relief sought. Although it is not
appropriate to award fees based on a percentage of monetary damages won
through settlement, the magnitude of actual results compared to plaintiffs’
desired results bears what an award of appropriate and reasonable attorney[s’]
fees should be.” Id. at *15. The Supreme Court has indicated that the results
obtained is “‘the most critical factor’ in determining the reasonableness of a fee
award.” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at
436). We cannot say in light of the “district court’s superior understanding of the
litigation,” Hensley, 461 U.S. at 437, that the downward departure based on the
results obtained was an abuse of discretion.




                                         6
     Case: 11-60254    Document: 00511710602      Page: 7    Date Filed: 12/30/2011



                                    No. 11-60254

5.      Exclusion of Costs
        Finally, the plaintiffs challenge the exclusion of certain costs. Specifically,
the district court excluded expert witness fees, certain travel expenses,
mediation fees, photocopies, trial transcripts, overnight mail, and process server
rush fees. Alexander, 2011 WL 1059293, at *16–18. The district court excluded
the travel expenses of attorneys whose work it found duplicative. We see no
abuse of discretion in this. With respect to the mediation fees, the district court
correctly held that mediation fees “are not taxable as expenses under Title VII
and are thus excluded.” Id. at 17 (citing Mota v. Univ. of Tex., Hous. Health Sci.
Ctr., 261 F.3d 512, 530 (5th Cir. 2001)). We find no abuse of discretion in this
holding. As for copies, overnight mail, and process server rush fees, the district
court found that counsel “failed to articulate why it was necessary to expend
many thousands of dollars” on these items. Id. at 18. Where counsel has failed
to meet its burden of proving the reasonability of its costs, see Mota, 261 F.3d at
529, we find no abuse of discretion in the district court’s failure to award those
costs. With respect to both expert witness fees and trial transcripts, the district
court excluded them after careful analysis because he found neither were
“necessary” to the litigation of this case. Id. at *16–17. The district court found
that the experts were used in the first trial, which was voided due to counsel’s
misconduct, id. at *16, and that the trial transcripts from the first trial were
only needed because of the voiding of the first trial, id. at *17. We have found
no clear error in the district court’s extension of the principles of Abner to a case
where attorneys cause a trial to be voided. Similarly, we find no abuse of
discretion in the district court excluding costs that were only necessary to a trial
voided due to such misconduct.
                                IV. CONCLUSION
        For the foregoing reasons, we AFFIRM the district court’s grant of
attorneys’ fees and litigation costs in the amount of $263,901.78.

                                           7
