1

This amount includes $2,010 for litigating the fee

application before the magistrate judge.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STANLEY SHEPHERD, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1442-D

VS. §

 §

DALLAS COUNTY, TEXAS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

Following a jury verdict and the entry of an amended judgment

in favor of plaintiff Stanley Shepherd (“Shepherd”), Shepherd

applied for an award of attorney’s fees and reimbursement of costs.

The court referred the application to United States Magistrate

Judge Paul D. Stickney for recommendation. On January 22, 2009

Judge Stickney filed his findings, conclusions, and recommendation,

setting out in a detailed, 34-page opinion (plus exhibits) his

reasons for recommending an award of $280,761.50 in attorney’s

fees,1

 $871.32 in allowable out-of-pocket litigation expenses, and

$6,253.96 in costs taxed by the Clerk of Court. Defendant Dallas

County, Texas (“Dallas County”) objects to the recommendation on

three principal grounds. Following de novo review, the court

adopts in substantial part Judge Stickney’s findings, conclusions,

and recommendation and awards Shepherd the sum of $255,871.50 in

attorney’s fees, $871.32 in allowable out-of-pocket litigation

 

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expenses, and $6,253.96 in costs taxed by the Clerk of Court.

I

Dallas County objects to the magistrate judge’s findings,

conclusions, and recommendation on three primary grounds. The

court addresses each in turn.

A

First, Dallas County objects to the magistrate judge’s finding

that the attorney’s fees award should not be reduced even though

Shepherd was unsuccessful on his episodic acts or omissions theory

of recovery. Dallas County contends that Shepherd asserted two

separate claims in this action: (1) that an episodic act or

omission resulted in the denial of medical care, and (2) that the

conditions of confinement resulted in the denial of medical care.

It argues that, because the court granted summary judgment in its

favor on the episodic acts or omissions theory, Shepherd should not

be able to recover attorney’s fees for the hours expended on this

theory, and that the fee award should be reduced accordingly.

As Judge Stickney recognized, the Supreme Court’s opinion in

Hensley v. Eckerhart, 461 U.S. 424 (1983), specifies the proper

framework for analyzing a reasonable fee award when a “prevailing

plaintiff” does not prevail on every contention made in the

lawsuit. Instead of automatically reducing the award, a court

“should focus on the significance of the overall relief obtained by

the plaintiff in relation to the hours reasonably expended on the

 

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litigation.” Id. at 435. “Litigants in good faith may raise

alternative legal grounds for a desired outcome, and the court’s

rejection of or failure to reach certain grounds is not a

sufficient reason for reducing a fee. The result is what matters.”

Id. 

After considering the outcome and facts of the present case,

the magistrate judge found that the attorney’s fees award should

include all the hours reasonably expended on the litigation as a

whole. Following de novo review, the court agrees. In light of

the substantial jury verdict in Shepherd’s favor, the common core

of facts and overlapping nature of the two theories of recovery,

and the hours reasonably expended in the litigation, the court

concludes that Shepherd’s attorney’s fees award should not be

reduced simply because he did not prevail on one of two theories of

recovery, particularly given the overlapping nature of the two

claims. Accordingly, the court overrules Dallas County’s first

objection.

B

Second, Dallas County objects to the magistrate judge’s

findings concerning its complaints of “block billing” by Shepherd’s

attorneys. “‘[B]lock billing refers to the time-keeping method by

which each lawyer and legal assistant enters the total daily time

spent working on a case, rather than itemizing the time expended on

specific tasks.’” Barrow v. Greenville Indep. Sch. Dist., 2005

 

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U.S. Dist. LEXIS 34557, at *10 (N.D. Tex. Dec. 20, 2005)

(Fitzwater, J.) (quoting Robinson v. City of Edmond, 160 F.3d 1275,

1284 n.9 (10th Cir. 1998)), aff’d, 2007 WL 3085028 (5th Cir. Oct.

23, 2007) (unpublished opinion), cert. denied, ___ U.S. ___, 128

S.Ct. 2475 (2008). 

Dallas County’s objection appears to have two components. It

first asserts that Shepherd’s attorneys’ practice of “block

billing” renders it impossible to distinguish which hours were

spent on which theory of recovery. In light of the court’s (and

the magistrate judge’s) conclusion that the reasonable attorney’s

fees need not be reduced to account for work related to the

episodic acts or omissions theory of recovery, this ground for the

objection lacks force.

Dallas County asserts, second, that the “block billing” by

Shepherd’s attorneys generally precludes a determination of what

hours were necessary, reasonable, and not redundant. Judge

Stickney thoroughly considered this contention in his

recommendation, however, and he carefully analyzed the specific

entries to which Dallas County objected. He found that most of the

entries were adequate to determine that the hours were reasonable

and compensable, but he recommended specific reductions for the

entries that were inadequate or that appeared to be redundant.

Following de novo review of the record, objections, and the

magistrate judge’s recommendation, the court adopts the magistrate

 

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2The magistrate judge did find that 12.4 hours spent on the

response were excessive; Dallas County objects to the finding that

the remaining 214.1 hours were not excessive.

3Percentage reductions are appropriate when attorneys

impermissibly engage in block billing or fail to exercise billing

judgment. See Barrow, 2005 U.S. Dist. LEXIS 34557, at *17 (“[M]ost

courts reviewing block-billed time entries have performed a

percentage reduction either in the number of hours or in the

lodestar figure.” (citing Paris v. Dallas Airmotive, Inc., 2004 WL

2100227, at *9-*11 (N.D. Tex. Sept. 21, 2004) (Lindsay, J.))), and

*38 (“The proper remedy when there is no evidence of billing

judgment is to reduce the hours awarded by a percentage intended to

substitute for the exercise of billing judgment.” (quoting Walker

v. U.S. Dep’t of Housing & Urban Dev., 99 F.3d 761, 770 (5th Cir.

1996))). For analogous reasons, they are appropriate when a court

reduces excessive time spent on particular legal services. See,

e.g., White v. Imperial Adjustment Corp., 2005 WL 1578810, at *15

(E.D. La. June 28, 2005) (reducing by 25% fees requested for

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judge’s findings, conclusions, and recommendations concerning

“block billing,” and it overrules Dallas County’s objection.

C

Third, Dallas County objects to the magistrate judge’s finding

that most of the hours that Shepherd’s attorneys expended preparing

the response to Dallas County’s summary judgment motion were not

excessive.2

 The magistrate judge found that 214.1 of the hours

that Shepherd’s attorneys spent preparing the summary judgment

response were reasonable. Of these hours, 46.4 were billed by Don

A. Tittle, Esquire (“Tittle”), and 167.7 were billed by Debbie

Branscum, Esquire (“Branscum”). Following de novo review, the

court sustains Dallas County’s objection to the extent that the

court reduces by 40% the hours claimed for preparing the summary

judgment response.3

 

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excessive time spent on drafting, preparation, and legal research).

4

For one thing, it was necessary for Shepherd to apply Palo to

the facts of his own case, which he did with care in his response

brief. Shepherd could not simply cite Palo with the assurance that

the court would rule in his favor.

5

At one point in his recommendation, the magistrate judge

cites Tittle’s experience as a civil rights lawyer and Branscum’s

specialization in legal research and writing as support for the

fees requested regarding the summary judgment response brief. Rec.

19. But this reasoning also supports reducing the hours claimed

because experienced attorneys should be expected to work more

efficiently. This is one reason why they can command a higher

hourly rate.

6It is commonly understood that to bill eight hours in one

day, an attorney must usually work more than eight hours.

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Although the court does not agree with Dallas County’s

contention that Shepherd’s response essentially only needed to

echo, and in fact did little more than echo, the court’s earlier

decision in Palo v. Dallas County, 2007 WL 2140590 (N.D. Tex. July

26, 2007) (Fitzwater, J.) (a similar lawsuit brought against Dallas

County),4 it does find that a claim for 214.1 hours is excessive in

relation to what was reasonably necessary to prepare the summary

judgment response brief.5 This amount equals more than five 40-

hour weeks (almost 27 eight-hour days).6 The court has reviewed

the September 5, 2007 summary judgment response brief, the

magistrate judge’s recommendation, and the parties’ arguments, and

it holds that a brief of this quality and content could have been

researched, written, and edited in no more than three weeks of

total work, i.e., about three-fifths of the time for which

 

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7

This amount is calculated as follows: Robert L. Chaiken,

Esquire: 68.7 hours at $350/hour = $24,045.00; Greg A. Gober,

Esquire: 63.3 hours at $200/hour = $12,660.00; Tittle: 472.05 hours

at $350/hour = $165,217.50; and Branscum: 167.93 hours at $300/hour

= $50,379.00. The fees for these four attorneys total $252,301.50.

The sum of $2,010——reflecting fees for litigating the fee

application before the magistrate judge——is then added to this

total, for a grand total of $254,311.50.

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compensation is sought. Accordingly, this amount of time should be

reduced by 40% so that 60% of the time is allowed. Thus the total

number of compensable hours (rounded) for work on the summary

judgment response is 28 hours for Tittle and 101 hours for

Branscum. This reduces Tittle’s fees by $6,440 (18.4 hours x $350

= $6,440) and reduces Branscum’s fees by $20,010 (66.7 hours x $300

= $20,010). The court sustains Dallas County’s objection to the

magistrate judge’s recommendation as to this reduction, but it

overrules its objections in all other respects.

II

With the exception of the reduction in compensable hours for

work spent on the summary judgment response, the court adopts the

findings, conclusions, and recommendation of the magistrate judge.

Accordingly, the court holds that Shepherd is entitled to

$254,311.50 in attorney’s fees,7 plus $1,560 in additional

attorney’s fees for responding to Dallas County’s objections to the

magistrate judge’s recommendation (see infra § III), and $871.32 in

allowable out-of-pocket litigation expenses and $6,253.96 in costs

taxed by the Clerk of Court. 

 

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III 

Shepherd also seeks additional attorney’s fees of $1,560 (5.2

hours x $300 per hour) for time spent preparing his response to

Dallas County’s objections to the magistrate judge’s

recommendation. “An award of reasonable attorneys’ fees may

include compensation for work performed in preparing and presenting

the fee application.” Case v. Unified Sch. Dist. No. 233, Johnson

County, Kan., 157 F.3d 1243, 1254 (10th Cir. 1998) (internal

quotation marks omitted) (quoting Mares v. Credit Bureau of Raton,

801 F.2d 1197, 1205 (10th Cir. 1986)). The court finds and

concludes that this time expenditure and hourly rate are reasonable

for preparing the response brief. Accordingly, the court awards

Shepherd the additional sum of $1,560 in fees for opposing Dallas

County’s objections.

* * *

Shepherd is awarded from Dallas County $255,871.50 (i.e.,

$254,311.50 + $1,560) in attorney’s fees, $871.32 in allowable outof-pocket litigation expenses, and $6,253.96 in costs taxed by the

Clerk of Court.

SO ORDERED.

April 10, 2009.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

 

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