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Ross v. University of Tulsa

United States District Court, N.D. Oklahoma

September 8, 2017

ABIGAIL ROSS, Plaintiff,
v.
UNIVERSITY OF TULSA, Defendant.

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's Motion for Attorney's Fees and Costs (Doc. 325).

         I. Factual Background

         On June 27, 2016, while the Court's grant of summary judgment to Defendant was pending on appeal, Defendant filed a Motion for Civil Contempt. Therein, Defendant argues that Plaintiff and/or Plaintiff's counsel violated the terms of protective orders when they disclosed certain evidence to the press. Defendant first learned of this disclosure upon reading a published news article containing information from materials that had been kept confidential throughout the litigation. Defendant's Motion for Civil Contempt was approximately fourteen pages in length. The first eleven pages of the motion set forth the categories of wrongfully disclosed information and included extensive quotations. The “Arguments and Authority” section, which was approximately two pages in length, contained basic principles of law and a one-paragraph application of the law. The remaining part of the motion requested relief and listed the expected hearing evidence.

         In his response to the Motion for Civil Contempt, Plaintiff's counsel, Spencer Bryan (“Bryan”), admitted to disclosing the materials to the press but contended that such disclosures were not confidential based on his reasonable interpretation of the protective order. Bryan's admission eliminated the need for evidence as to who disclosed the information. Thus, following the parties' Joint Notice of Stipulation (Doc. 319), the Court anticipated that the hearing would be limited to arguments as to the scope and meaning of the protective order. Defendant's reply brief, which was nine pages in length, did not contain significant legal analysis and was primarily devoted to reciting the terms of the protective orders and explaining why certain materials had or had not previously been made public.

         On September 28, 2016, the Court conducted a sealed hearing on the motion for contempt. Defendant called witnesses primarily to establish what confidential information, if any, had been previously disclosed or unsealed. This included testimony of Defendant's counsel, John Lackey (“Lackey”). The Court permitted this evidence, although the Court had already familiarized itself with its docket and determined whether information given to the press had or had not previously been made public. In other words, although the Court granted Defendant leeway to present this evidence, much of it was evidence of which the Court could take judicial notice.

         On November 21, 2016, the Court granted Defendant's Motion for Civil Contempt and found that Bryan committed several violations of the protective orders. The Court concluded that a compensatory sanction for civil contempt was appropriate to compensate Defendant for “actual losses” suffered as a result of Bryan's non-compliance with the protective orders. The Court found that the only actual losses suffered by Defendant were fees and costs associated with prosecuting the Motion for Civil Contempt, and the Court declined to impose other sanctions requested by Defendant. The Court described the sanction as “moderate” and contrasted Bryan's conduct with significantly more egregious conduct by an attorney who had repeatedly and more purposefully disclosed confidential information. (See Doc. 324 at 18 & n.9.) The Court anticipated that Defendant's fees incurred in conjunction with the motion would be in the range of $10, 000.00-$15, 000.00.

         In Defendant's Motion for Attorney's Fees and Costs (Doc. 325) currently pending before the Court, Defendant seeks a total of $49, 466.26. This includes time spent by two attorneys and two paralegals in conjunction with: preparation of the Motion for Civil Contempt; preparation of the reply brief in support of the Motion for Civil Contempt; preparation for and attendance at the hearing; and follow-up matters after the hearing. Defendant sought the following amounts in fees and costs:

Timekeeper

Hours

Rate

Total

John David Lackey (attorney)

158.3 hours

$200.00

$31, 660.00

Amy Nicole Bennett (“Bennett”) (attorney)

21.2

$175.00

$3, 710.00

Chandler Hope Carney (paralegal)

21.2

$150.00

$3, 180.00

Keith John Flinn (“Flinn”) (paralegal)

72

$150.00

$10, 800.00

Total:

$49, 350.00

Costs:

$116.26

Total Award Sought:

$49, 466.26

         Bryan objects to the fee request on grounds that: (1) the application includes time for matters that were not essential or necessary to prosecuting the Motion for Civil Contempt, including time spent on an overly aggressive litigation strategy aimed at leveraging the underlying litigation; (2) the application does not reflect sound billing judgment; (3) the application reflects duplication of efforts; (4) some entries are block billed; and (5) the application improperly requests fees for time spent by non-lawyers.

         II. Standard

         Defendant does not argue that the Court must award all fees, regardless of their reasonableness, because the fee award is in the form of a sanction. This argument has been rejected under extremely similar circumstances, see United States v. Attaluri, 34 F.Supp.2d 1280, 1283 (N.D. Okla. 1999), and is also rejected by this Court. Although the Court originally couched its civil contempt sanction in terms of compensating Defendant for “actual losses, ” (see Doc. 324 at 18-19), it would have been more accurate to characterize the sanction as a reasonable fee award. In other words, the Court never intended to “provide [Defendant] with a blank check, to be filled in with whatever amount [Defendant] desired.” See Attaluri, 34 F.Supp.2d at 1283. As in Attaluri, the Court did not intend its “award of attorney fees to be considered a fine, but, rather, intended for the government to pay defendants the reasonable fees incurred as a result of prosecuting the motion, in light of the fact that no other remedy was appropriate.” Id. Nor did the Court intend for the sanction to necessarily include all fees actually billed to and paid by a client. The Court instead intended to conduct a reasonableness analysis as it would in any fee-shifting case. See Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005) (explaining that “awards made under the authority of fee-shifting statutes are not intended to replicate fees which an attorney could earn through a private fee arrangement with a client, particularly if the client had agreed to an aggressive litigation strategy and the inevitably resultant higher fees”). Therefore, the Court will consider the reasonableness of the requested fees, as it would in a fee-shifting situation, even though the fee award is a sanction for civil contempt.

         Generally, the “proper procedure for determining a reasonable attorneys' fee is to arrive at a lodestar figure by multiplying the hours plaintiff's counsel reasonably spent on the litigation by a reasonable hourly rate.” Id. “The fee applicant should exercise billing judgment with respect to the number of hours worked and billed.” Id. “Billing judgment consists of winnowing hours actually expended down to hours reasonably expended.” Id. Another relevant factor is the reasonableness of the fees in light of the success obtained, which requires consideration of the overall relief obtained in relation to the number of hours reasonably expended. Id.

         III. ...


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