United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
August 7, 2017, the Honorable C. Clifford Shirley, United
States Magistrate Judge, filed a 20-page Report and
Recommendation [R. 97], in which he recommended that
Pittington's motion for attorney fees and litigation
expenses [R. 78] be granted in part and denied in part.
Specifically, the magistrate judge recommended that
Pittington's motion for attorney fees be reduced to $98,
526.67, and his motion for litigation expenses be reduced to
matter is before the Court for consideration of
Pittington's objections [R. 98] to the Report and
Recommendation. As required by 28 U.S.C. § 36(b)(1) and
Rule 72(b), Fed.R.Civ.P., the Court has now undertaken a
de novo review of those portions of the Report and
Recommendation to which Pittington objects. For the reasons
that follow, the Court finds Pittington's objections
without merit and the objections will be overruled.
sued his former employer, defendant Great Smoky Mountain
Lumberjack Feud, alleging violations of the Americans with
Disabilities Act (ADA), Title VII, and the Tennessee Human
Rights Act (THRA). Pittington sought back pay, front pay,
compensatory damages, non-pecuniary damages, punitive
damages, and post-judgment interest, not to exceed $225, 000.
The case proceeded to trial before a jury. The court granted
defendant's motion to dismiss the ADA claims. The jury
returned a verdict in plaintiff's favor on the Title VII
and THRA claims and awarded Pittington $10, 000 in back pay
damages, but no other damages. Following trial, Pittington
filed a motion to amend the judgment or for a new trial on
the issue of damages. The court granted the motion in part to
allow prejudgment interest, but denied Pittington's
request for a new trial on damages.
moves for an award of $163, 443.00 in attorney fees and
litigation costs of $12, 051.28. As stated above, the
magistrate judge recommended cutting the attorney fee award
to $98, 526.67, and the litigation costs award to $3, 330.10.
Pittington does not object to the magistrate judge's $11,
843.50 reduction of the attorney fee amount related to the
proration of time spend on his wife's lawsuit nor the
reduction of expenses. Pittington only objects to the
magistrate judge's 35% reduction of the attorney fee
award attributable to the “limited success” at
trial. Pittington argues that this reduction is not warranted
given his successful jury verdict. He also argues that the
reduction is not warranted if he prevails on his appeal to
the Sixth Circuit of the court's order denying his motion
for a new trial on the issue of damages.
noted by the magistrate judge, the reasonableness of the
hours expended and the rate charged therefore is determined
by considering twelve factors: (1) time and labor required;
(2) the novelty and difficulty of the questions presented;
(3) the skill needed to perform the legal service properly;
(4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether
the fee is fixed or contingent; (7) time and limitations
imposed by the client or the circumstances; (8) the amount
involved and the results 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.” Isabel v.
City of Memphis, 404 F.3d 404, 415 (6th Cir.
2005). The most critical factor in determining the
reasonableness of a fee award is the degree of success
magistrate found that, although Pittington succeeded on this
Title VII and THRA claims, he was only awarded back pay in
the total amount of $10, 000.00. The jury did not award
Pittington any front pay, compensatory damages, non-pecuniary
damages, or punitive damages. In addition, the court directed
a verdict in favor of defendant on his ADA claim. Based on
these results, the magistrate judge found that Pittington was
not entitled to the full amount of attorney fees requested.
The court agrees.
law is clear that a plaintiff's degree of success is a
factor to be considered in determining a fee award.
Id. at 415-16. Pittington's argument ignores the
fact that he was awarded only one-fourth of the back pay he
claimed. The jury failed to award him any front pay,
compensatory damages, or punitive damages. In ruling on
Pittington's motion for new trial on the issue of
damages, the court found it was not unreasonable to assume
the jury took the lack of specific evidence and
Pittington's extended periods of unemployment into
consideration in determining the amount of back pay awarded.
In light of the jury's verdict, the court agrees with the
magistrate judge that to award the full amount requested
(approximately sixteen times the damages awarded) would be
excessive considering Pittington's limited success on the
merits of his claim.
court will not entertain the parties' arguments relating
to settlement offers and negotiations. A plaintiff's
settlement strategy or settlement offers are not identified
as one of the twelve factors to be considered in the
determination of a reasonable fee award. See Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983).
Pittington's appeal of the court's order affirming
the jury award of damages has no bearing on the determination
of fees. The factors considered by the court in making a fee
determination do not include the possibility of a successful
appeal by a plaintiff resulting in an increased damage award.
Isabel, 404 F.3d at 416. Pittington has cited no
authority allowing the court to award fees based on what
might happen in the appellate court. Lastly, the court found
Pittington's arguments for an increased damages award to
be without merit.
careful review of the record, the Court is in complete
agreement with the magistrate judge's recommendation that
Pittington's motion for attorney fees and litigation
expenses be reduced. Accordingly, the court ACCEPTS
IN WHOLE the Report and Recommendation under 28
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). It is
ORDERED, for the reasons stated in the
Report and Recommendation, which the court adopts and
incorporates into its ruling, that Pittington's
objections to the R&R [R. 98] are
OVERRULED; his motion for attorney fees and
expenses [R. 78] is GRANTED ...