Professional Documents
Culture Documents
No. 07-1777
COUNSEL
ARGUED: Stephen Barret Stern, ROSS, DIXON & BELL,
L.L.P., Washington, D.C., for Appellant. Elaine C. Bredehoft,
CHARLSON, BREDEHOFT & COHEN, P.C., Reston, Virginia, for Appellee. ON BRIEF: Prashant K. Khetan, Jonathan Cohen, ROSS, DIXON & BELL, L.L.P., Washington,
D.C., for Appellant. Carla D. Brown, Brittany J. Sakata,
CHARLSON, BREDEHOFT & COHEN, P.C., Reston, Virginia, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
In this appeal, the Mills Corporation (Defendant or Mills)
challenges, on several grounds, the district courts entry of a
judgment awarding its former employee Kenneth Grissom
(Plaintiff) $325,484.08 in attorneys fees and costs (the Fee
Award). The Fee Award followed Plaintiffs acceptance of
Defendants $130,000.00 offer of judgment made pursuant to
Federal Rule of Civil Procedure 68 (Rule 68). For reasons that
follow, we vacate the Fee Award and remand for further proceedings consistent with this opinion.
I.
Defendant, a publicly traded corporation in the business of
developing large commercial real estate projects such as shopping malls, employed Plaintiff as a vice president and project
manager from January 2000 until it discharged him on August
16, 2005, on the asserted ground of poor job performance. At
the time of his discharge, Plaintiff was the project manager
for a redevelopment/expansion project of a retail mall called
the Shops at Riverside Square, in Hackensack, New Jersey
(the Riverside Project). Plaintiff not only disputed Defendants assertion of poor job performance, but he also claimed
that Defendant illegally discharged him in retaliation for
engaging in whistleblower activity protected by the SarbanesOxley Act of 2002 (SOX), 18 U.S.C. 1514A.
In relevant part, 1514A provides "whistleblower protection" for employees of publicly traded companies who are
"discharge[d], . . . harass[ed], or in any other manner discriminate[d] against . . . in the terms and conditions of employment
because of any lawful act done by the employee":
(1) to provide information . . . which the employee
reasonably believes constitutes a violation of . . . any
rule or regulation of the Securities and Exchange
Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to . . .
***
(C) a person with supervisory authority
over the employee (or such other person
working for the employer who has the
authority to investigate, discover, or terminate misconduct); . . . .
Id. 1514A(a)(1)(C).
On August 18, 2006, Plaintiff filed the present civil action
against Defendant, alleging four claims. After voluntarily dismissing one such claim, Plaintiff filed an amended complaint
alleging the following three claims: (1) common law breach
of contract; (2) common law defamation per se; and (3) violation of SOXs whistleblower provision.1 In his breach of contract claim, Plaintiff alleged that Defendant failed to pay him
certain promised bonuses. In his defamation per se claim,
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III.
Defendant next argues that the district court erred in awarding Plaintiff attorneys fees and costs accrued after May 11,
2007, the date of its Rule 68 Offer of Judgment. In support,
Defendant directs our attention to the express language of
Rule 68: "More than 10 days before the trial begins, a party
defending against a claim may serve on an opposing party an
offer to allow judgment on specified terms, with the costs then
accrued." Fed. R. Civ. P. 68 (emphasis added).6
Plaintiff responds that he is entitled to attorneys fees and
costs beyond May 11, 2007, despite the just underlined language of Rule 68, because the language in Defendants Rule
68 Offer of Judgment "contemplates the payment of fees and
costs after the date of the Offer." (Plaintiffs Br. at 45). In
support, Plaintiff points to the following language in Defendants Rule 68 Offer of Judgment:
This Offer of Judgment does not cover any attorneys fees and costs Grissom has incurred. Rather,
the issue of attorneys fees and costs shall be
resolved in a separate proceeding through a petition
to the Court, where the Court shall determine the
extent to which Grissom and/or his attorney are entitled to fees and costs, if any.
(J.A. 72).
We agree with Defendant that the district court erred in
awarding Plaintiff attorneys fees and costs accrued after May
6
Notably, Defendant did not dispute below and does not dispute in its
opening appellate brief that Rule 68s use of the term "costs," in the context of the present case, includes attorneys fees. Accordingly, we assume
arguendo, for purposes of addressing Defendants argument on this issue,
that Rule 68s use of the term "costs," in the context of this case, includes
attorneys fees.
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15
Years
Experience
Hourly Rate
18-19
$400.00
6-7
$350.00
5-6
$350.00
2-3
$325.00
$300.00
$250.00-275.00
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TABLE 2
Years Experience
Hourly Rate
20+
$380.00
11-19
$335.00
8-10
$270.00
4-7
$220.00
1-3
$180.00
In making its loadstar calculations, the district court
applied, without reduction, the hourly rates requested by
Plaintiff. According to Defendant in its Opening Appellate
Brief, Lead Counsel Elaine Bredehoft and Partner Cohen
should charge no more than $300.00 per hour; Associates
Brown and Wickwire no more than $250.00 per hour; Associates Goswami and Harper no more than $200.00 per hour;
and Associate Sakata no more than $180.00 per hour.
Keeping in mind our extremely deferential standard of
review in this area, we hold the district court abused its discretion in basing the Fee Award on the hourly rates requested
by Plaintiff, without reduction. Plaintiffs prevailing-hourlyrate evidence is inadequate to support the award. Critically,
beyond the affidavit of Lead Counsel Elaine Bredehoft, Plaintiff offered no specific evidence that the hourly rates sought
for his attorneys coincided with the then prevailing market
rates of attorneys in the Eastern District of Virginia of similar
skill and for similar work, which our case law required him
to do. Plyler, 902 F.2d at 277 ("In addition to the attorneys
own affidavits, the fee applicant must produce satisfactory
specific evidence of the prevailing market rates in the relevant
community for the type of work for which he seeks an
award.") (internal quotation marks omitted).
The cases to which Plaintiff points as examples of similar
fee awards in like cases are insufficient to carry Plaintiffs
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TABLE 3
Name
Partner Elaine Bredehoft
Partner Peter Cohen
Associate S. Christian Wickwire
Associate Carla Brown
Associate Anjuma Goswami
Associate Jennifer Harper
Associate Brittany Sakata
Hourly Rate
$380.00
$335.00
$250.00
$250.00
$200.00
$200.00
$180.00
See Depaoli v. Vacation Sales Assocs., 489 F.3d 615 (4th Cir.
2007) (reducing attorneys hourly rate from $305.00 and
$325.00 per hour sought by plaintiff to $225.00 per hour
because plaintiff produced no evidence of prevailing market
rate of $305.00 and $325.00 per hour; the only relevant evidence in the case showed that plaintiffs attorney regularly
charged plaintiff $225.00 per hour). Accordingly, we instruct
the district court on remand to recalculate the Fee Award
using the hourly rates we just set forth in Table 3, supra.
We now turn to Defendants argument pertaining to the
number of hours expended by Plaintiffs attorneys. Defendant
contends that this was a relatively simple case that was overstaffed and overworked by Plaintiffs attorneys, who sought
compensation for more than 1,000 hours of attorney time and
more than 250 hours of paralegal time. By way of example of
the unreasonableness of the hours billed, Defendant points to
the more than 100 hours billed for drafting various discovery
motions. As Defendant notes, however, the billing records
indicate that counsel for Plaintiff began billing for the preparation of a motion to compel three months before discovery
had even begun, and the records further show that counsel
began billing for another motion the day after the relevant discovery request was served. Defendant argues, inter alia, that
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reconsider the reasonableness of the hours sought and specifically and expressly address Defendants argument regarding
Plaintiffs discovery motions; and (5) not take into account
any notion that the deadlines posed by the district court
required Plaintiffs counsel to work at a faster pace than otherwise required in the Eastern District of Virginia.
VACATED AND REMANDED