IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30674

ELGIE ABNER, HARRY BROOKS, JAMES EDWARD MARTIN, STEVE

MAY, NAPOLEON PLAYER, JERRY LEE WALKER, LJ PLAYER, and WD

ODOM, JR.

Plaintiffs - Appellees

v.

THE KANSAS CITY SOUTHERN RAILWAY COMPANY

Defendant - Appellant 

Appeal from the United States District Court

for the Western District of Louisiana

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge: 

Eight plaintiffs, employees of Kansas City Southern Railway Company,

sued the railway in district court, alleging race discrimination. They amended

their complaint several times, eventually withdrawing their attempt to bring a

class action and dropping several of their claims. The first trial resulted in a

hung jury. After the second trial, a jury found for Plaintiffs and awarded

Plaintiffs punitive damages but no compensatory damages. Plaintiffs filed for

attorneys’ fees and costs to recover expenses accrued in preparation for and

during the first and second trials. The district court reduced the requested fees

and costs, finding some to be unreasonable, and awarded Plaintiffs $446,777.12

United States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-30674

1 Fed. R. Civ. P. 23. 

2 The magistrate judge assigned to address pre-trial matters grantedPlaintiffs’ request

to take seven depositions in addition to the ten originally permitted. 

2

in total. Defendant appealed, urging that Plaintiffs should not be reimbursed

for fees and costs accrued during the first trial.

I 

Plaintiffs – originally pro se – filed a complaint against Defendant on April

29, 2003, alleging a pattern and practice of discrimination in hiring and

promotion and disparate treatment-harassment. Approximately four months

later they sought to bring the case as a class action under Rule 23,1 alleging that

Defendant maintained a pattern and practice of race discrimination in violation

of 42 U.S.C. § 2000e-2(a), subjected them to a hostile work environment in

violation of Title VII, and caused intentional infliction of emotional distress

under Louisiana tortlaw. An amended complaint filed in early 2005 dropped the

class action claim and alleged that Defendant violated Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. Plaintiffs

alleged that Defendant maintained “a pattern of discrimination in employment

on the basis of race,” discriminated “against plaintiffs because oftheir race in the

terms, conditions and privileges oftheir employment” and in so doing acted with

malice and reckless disregard for their federally protected civil rights,

intentionally discriminated against Plaintiffs because oftheir race, and created,

permitted, and failed to eradicate a hostile work environment – also with malice

and reckless disregard for their civil rights. They again alleged that the hostile

work environment caused intentional infliction of emotional distress under

Louisiana law, seeking a declaratory judgment, injunctive relief, damages, and

attorneys’ fees. Prior to trial, Plaintiffs narrowed their case to a hostile work

environment claim. In the meantime, the parties prepared for trial, exchanging

initial disclosures,taking depositions,2exchanging materials through discovery,
No. 07-30674

3 Defendant requested a continuance of the June 20 trial date, which the court denied.

4 The jury was asked,

1. Do you find by a preponderance of evidence that [the individual

plaintiff] was subjected to a hostile work environment . . . ? [Yes or No]

2. [To be answered only if the jurors answered "Yes" to Question 1] Do

you find by a preponderance of evidence that KCS exercised reasonable

care to prevent and promptly correct any racially harassing behavior?

[Yes or No]

3. [To be answered only if the jurors answered "Yes" to Question 2] Do

you find by a preponderance of the evidence that [individual plaintiff]

unreasonably failed to take advantage of any preventive or corrective

opportunities offered by KCS, or to otherwise avoid harm? [Yes or No]

4. [To be answered only if the jurors answered "No" to Question 3] What

do you find to be the total amount of compensatory damages suffered by

[individual plaintiff] as a result of being subjected to a hostile working

environment by KCS? $ ________________

5. What do you find to be the total amount of punitive damages to which

[individual plaintiff] is entitled as a result of being subjected to a hostile

working environment by KCS? $ ___________________

3

listing “may-call” witnesses, moving for admission of expert witness testimony,

submitting expert reports, and filing various motions to quash, a motion to

dismiss, a motion for severance or separate trials, and motions in limine. 

The case was tried from June 20 through June 28, 2005.3 After the sixth

day of trial – at the close of Plaintiffs’ case in chief – Defendant moved for

judgment as a matter of law. Defendant also moved for judgment as a matter

of law at the close of all evidence, and Plaintiffs filed a motion for judgment as

a matter of law. All of these motions were unsuccessful. On the seventh day of

trial, June 28, the district court submitted to the jury five questions for each

Plaintiff.4 The jury deliberated for approximately four and one-half hours. The

next day, after deliberating for nearly two more hours,the jury advised the court

that it would not be able to reach a unanimous decision, and the court declared

a mistrial. 
No. 07-30674

4

A new trial was set, and the parties continued their preparatory work.

Plaintiffs filed a motion to depose a witness for trial purposes. This witness was

on Plaintiffs’ final will-call list but had been unavailable to testify at the first

trial. Defendant moved for summary judgment, which the district court denied

as untimely. Both parties filed motions in limine based on their experiences

during the firsttrial. Defendant, for example, requested the court to prohibit the

use of testimony relating to prior affiliations of a supervisor, urging, “As

demonstrated by the first trial, such evidence is not relevant to the issues . . . is

highly prejudicial, and will needlessly prolong the trial with evidence on

collateral matters.” The court denied Defendant’s motion, although shifting

ground in its ruling. Plaintiffs urged in their motion in limine that “[t]his court

ruled atthe previous pre-trial conference that defendant would not be permitted

to present exhibits including its sexual harassment and equal opportunity policy

statements. . . . Nonetheless, defendant presented documentary evidence at the

prior trial which is irrelevant to the issues in this racial harassment case.”

Plaintiffs asked that the court not admit this evidence at the second trial. 

Defendant responded that its “equal employment opportunity policy and its

sexual harassment policy were allowed during the first trial as relevant evidence

and were presented to the jury as exhibits. . . . Plaintiffs should not be allowed

to change this now.” The court granted Plaintiffs’ request to exclude evidence

of Defendant’s sexual harassment policies but denied the request to exclude the

equal employment opportunity policy. Plaintiffs also reminded that court that

it had prevented them from presenting “me too” witnesses at the first trial, yet

“defendant then argued at trial that only eight plaintiffs are in court,” thus

“implying thatthe other employees in the mechanical department do not find the

work environment hostile.” The court granted Plaintiffs’ request to preclude

Defendant from introducing evidence on the number of mechanical department

employees who had not filed suit. 
No. 07-30674

5 Abner v. Kansas City S. Ry. Co., 513 F.3d 154, 165 (5th Cir. 2008). 

6 Fed. R. Civ. P. 54(d)(2). 

7 42 U.S.C. § 1988(b). 

5

On March 27, 2006, the second trial began. On the sixth day, Defendant

orally moved for judgment as a matter of law at the close of Plaintiffs’ case, and

Plaintiffs filed a motion for judgment as a matter of law. The court denied both.

On the seventh day of trial, Plaintiffs orally moved for a directed verdict on the

affirmative defense issue, and Defendant renewed is motion for judgment as a

matter of law and orally moved for mistrial. The court denied Plaintiffs’ motion

and took Defendant’s motion for judgment as a matter of law under advisement.

On the eighth day, the court instructed the jury and deliberations began. The

jury returned a verdict in favor of Plaintiffs the following day, answering the

same questions asked during the first trial and awarding $0 in compensatory

damages and $125,000 in punitive damages to each plaintiff. Plaintiffs orally

moved for a nominal compensatory award. On April 7, 2006, the court entered

a judgment ordering Defendantto pay each plaintiff $1 in nominal damages and

$125,000 in punitive damages. After filing unsuccessful motions for mistrial,

judgment as a matter of law, and alternatively for a new trial, Defendant

appealed. This court affirmed, finding the nominal damages unnecessary.5

In the meantime, Plaintiffs moved the district courtfor attorneys’fees and

expenses under Rule 54(d)(2),6 29 U.S.C. § 794 et seq., and the Civil Rights

Attorney’s Fees Awards Act,7 which allows discretionary awards of attorney’s

fees for parties prevailing in § 1981 actions, among others. Plaintiffs described

the course of proceedings, including depositions taken, meetings for trial

preparation, attorneys’ meetings with Plaintiffs, mediation, scheduling

conferences, and other activities that occurred before each trial. Plaintiffs urged

that “[a] plaintiff seeking attorney fees . . . need merely show that (1) he is a
No. 07-30674

8 Citing Farrar v. Hobby, 506 U.S. 103, 109 (1992). 

9 Citing 42 U.S.C. § 2000e-5(k); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th

Cir 1998). 

6

prevailing party and (2) that the fee requested is reasonable. . . . A plaintiff is

considered a prevailing party for attorney’s fees purposes if he succeeds on any

significant issue in litigation that achieves some of the benefits the parties

sought in bringing suit.”8 Plaintiffs requested “attorneys’ fees in the amount of

$463,850.75 and out-of-pocket expenses in the amount of $140,978.42, for a

grand total of $604,829.17.” Defendant argued in its memorandum in opposition

to the motion that it was “excessive in light of the low degree of success achieved

by Plaintiffs, compared to the results sought and the time and expense put

forward in pursuit of those results.” Defendant maintained,

In the end, the Plaintiffs received one-fiftieth of the amount sought

in damages at trial, and they succeeded on only one of their claims

originally pursued. Further, they failed to achieve the class action

status they initially sought. Now, their attorneys are asking for

more than $600,000.00 in fees and costs, which represents more

than half of the total dollars awarded to the Plaintiffs and includes

money for time spent on losing efforts.

Defendant recognized that “Title VII permits a court, in its discretion, to

allow a reasonable attorney’s fee to a ‘prevailing party’”9 but maintained that 

there are several unreasonable aspects of Plaintiffs’ attorneys’ fee

request. . . . First, Plaintiffs seek fees and expenses for claims that

were not only unsuccessful, but voluntarily dropped shortly before

trial. Second, Plaintiffs seek a full attorneys’ fee award even though

they did not achieve the full results they sought at trial. 

Defendant requested that the court drop the hours spent by attorneys on the

claims and allegations that were “pursued but ultimately dropped” – those

unrelated to the successful hostile work environment claim. It also again urged,

“Plaintiffs should also not be permitted to recover attorneys’ fees for work done
No. 07-30674

10 Abner v. Kansas City S. Ry. Co., 2007 WL 1805782 at *1 (No. 03-0765, W.D. La. June

21, 2007). 

11 488 F.2d 714, 717-19 (5th Cir. 1974). 

12 Abner, 2007 WL 1805782 at *1 (quoting Migis v. Pearle Vision, Inc., 135 F.3d 1041,

1047 (5th Cir. 1998)).

13 Id. at *2 (citing Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir.

2006)). 

7

in connection with the first trial in this case, which was a fully unsuccessful

effort.” It requested “a reduction of at least fifty percent of the total fees and

expenses.” Further, it maintained that reductions were warranted “because of

attorney overstaffing and duplication of efforts” and because the fee and expense

request had “numerous unreasonable entries,” citing excessive time for drafting

letters, for example (two letters allegedly required three hours of work for each

letter, and another letter to an expert witness allegedly required nine hours of

work), and numerous hours spent on the unsuccessful “class action issues” and

“work done during the first unsuccessful trial.” Finally, Defendant disputed

plaintiffs’ request for a multiplier for the “novelty and complexities” of the case.

Defendant did not contest Plaintiffs’ attorneys’ hourly rate. 

The district court held that Plaintiffs were entitled to reasonable fees

under 42 U.S.C. §§ 1988 and 2000e5(k) and determined that an amount of

$446,777.12 constituted “reasonable attorneys’ fees and costs.”10 It used the

lodestar method and looked to the twelve factors in Johnson v. Ga. Highway

Express11 for upward and downward adjustment of the calculated lodestar

amount, rejecting the upward adjustment requested by Plaintiffs. It also

recognized the Supreme Court’s principle that “‘the most critical factor in

determining the reasonableness of a fee award in a civil rights suit is the degree

of success obtained’”12 and that the party requesting the award bears the burden

of showing reasonableness.13 The court concluded, 
No. 07-30674

14 The court later added a fifteen percent downward adjustment for “the hours

reasonably expended.” Id. at *4. 

15 Id. at *2, *2 n.2. 

16 Id. at *4. 

17 Id.; id. at *4 n.8. 

8

In the instant case, the plaintiffs failed to carry their burden of

proving that they exercised billing judgment. . . . In short, the

billing records contain no indication of the hours the attorneys wrote

off as redundant, unproductive, or excessive during this lengthy

litigation. Accordingly, a downward adjustment of ten percent is

warranted to accountfor billing judgment.14 [And in a footnote]: The

ten percent offset will be applied after all specific, non-compensable

or erroneous charges have been subtracted from the initial lodestar

figure.15

After calculating the lodestar – tabulating the hours spent by Plaintiffs’ four

attorneys and multiplying this time by their hourly rates – the court

investigated the reasonableness of the hours expended. It reduced the hourly

rate of one of the attorneys, removed some duplicate entries, and found that

many other entries were “permeated with ambiguities.”16 Accordingly, it

determined that it could not “judge the reasonableness of the time expended”

and concluded that a “fifteen percent reduction [of the time expended] is

warranted,” applying a fifteen percent offset “after all specific non-compensable

or erroneous charges have been subtracted from the initial lodestar figure.”17

Next, the court looked to the success obtained. The court concluded,

Because the hours billed must have been for time reasonably spent

on work in furtherance of claims on which the plaintiffs prevailed,

the plaintiffs can be awarded no fees for the time and effort

expended on the motion for injunctive and declaratory relief, as such

motion was denied. This results in a reduction of $3,625. Likewise,

the plaintiffs cannot recover fees for time expended on the research
No. 07-30674

18 Id. at *5-*6. 

19 Id. at *6. 

20 Id. at *7. 

21 Id. at *8. 

22 See id. at *7, *9. 

23 Id. at *9. 

24 Id. at *6. 

9

of class action issues. . . . Therefore, a reduction of $714.50 is

appropriate.18

The court also reduced the award by $1,500 for another bill that “likely involved

work on class action issues.”19 Finally, it addressed whether the lodestar figure

should be adjusted downward or upward based on the level of Plaintiffs’ success,

declining to make an upward adjustment and refusing to “adjust [downward] the

lodestar amount for limited success” because “[a]t the end ofthe day, the winner

is clear: the plaintiffs successfully proved a Title VII violation.”20 Moving to the

question of costs, the court disallowed a “number of requested costs” that were

either undocumented or unsubstantiated, involved uncompensable local fax costs

(normal overhead costs), or were unenumerated in 28 U.S.C. § 1920 or accepted

as costs under § 2000e-5(k).21 In total, the court subtracted $43,591.52 from

requested costs and $114,460.53 from requested fees.22 Following these

reductions, including the 10% and 15% reductions from fees for

unreasonableness, it awarded $349,930.22 in attorneys’ fees and $97,386.90 in

costs.23

In the process of calculating fees and costs , the district court specifically

addressed the issue that faces us – whether the award should include fees and

costs from the first trial. The court observed, “KCS . . . asserts that the ‘Fifth

Circuit does not authorize an award of attorney’s fees for such work . . . .’”24 The
No. 07-30674

25 Id. (citing Shott v. Rush-Presbyterian-St. Luke’s Med. Ctr., 338 F.3d 736, 739 (7th

Cir. 2003); O’Rourke v. City of Providence, 235 F.3d 713, 737 (1st Cir. 2001); Gierlinger v.

Gleason, 160 F.3d 858, 876-79 (2d Cir. 1998)). 

26 Id. at *5 (citing Hensley v. Eckerhart, 461 U.S. 424, 431 (1983)). 

27 Id. at *6 (citing Shott, 338 F.3d at 739). 

28 Id. (citing Jaffee v. Redmond, 142 F.3d 409, 414, 416 (7th Cir.1998)). 

29 Kansas City “acknowledges that some of the pretrial work done in connection with

the first trial was re-used and relied upon during the second trial. As a result, it “does not

seek to reduce Plaintiffs’ attorneys’ fee award with respect to those fees.”

10

court noted that the “First, Second, and Seventh Circuits have held that the

prevailing party in a subsequent trial may recover fees for work done for and in

a prior trial.”25 It further recognized that the Supreme Court has instructed

lower courts to focus on “‘the ultimate result’”26 and cited the Seventh Circuit’s

holding that “‘[w]hen two trials are required to achieve the ‘ultimate result,’ a

plaintiff should be compensated for both trials, so long as the time spent at both

was reasonably expended.’”27 The district court concluded that “[t]he critical

question is whether the time spent preparing for and conducting the first trial

was reasonable” and that “[w]ith the exception of the unreasonable entries

previously detailed above,” it was.28

On appeal, Defendant does not object to the hourly rates or other discrete

determinations and calculations underlying the district court’s fee and cost

award; rather, it urges that “it was an abuse of discretion to award Plaintiffs the

attorneys’ fees and costs that the first trial generated” because the Plaintiffs

were not the “prevailing parties” at the first trial and the fees from work

required during the first trial are not “reasonable,” as the first trial was a

“wholly unsuccessful effort.” It requests that the panel “reverse the fee award

representing the actual work done during the unsuccessful first trial.”29

II 
No. 07-30674

30 See, e.g., Volk v. Gonzalez, 262 F.3d 528, 534 (5th Cir. 2001) (“[W]e review the district

court’s award of attorney’s fees only for an abuse of discretion. The factual findings supporting

an award of attorney’s fees are reviewed for clear error; the conclusions of law underlying the

award are reviewed de novo.”).

31 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)

32 Id. at 433. 

33 Id. at 437.

11

We review a district court’s fee award for an abuse of discretion,30 bearing

in mind that court’s “superior understanding of the litigation”31 and of the costs

and fees reasonably incurred in that litigation. While Defendant objects to the

fees and costs from the first trial on two separate grounds – urging that they

were unreasonable and that Plaintiffs did not prevail – these inquiries are by

necessity intertwined under the unique facts of this case. A prevailing party is

a party who is successful “‘on any significant issue in litigation which achieves

some of the benefit the part[y] sought in bringing suit,”32 whereas a fee award

is unreasonable if a court has failed to adequately consider the “relationship

between the amount of the fee awarded and the results obtained.”33 The “results

obtained”factor under the reasonableness inquiry brings us back to the question

of results and to what extent Plaintiffs “prevailed.” To address Defendant’s

claim that the fees and costs were unreasonable because the “trial ultimately

proved unsuccessful,” we must consider in tandem the reasonableness ofthe fees

and costs and the level to which Plaintiffs prevailed.

Defendant concedes that“[t]his Court has not decided the issue of whether

a prevailing party in a subsequent trial may recover fees for work done in a prior

trial in which that party did not prevail” but urges that the district court’s

reliance on cases from three other circuits, which have allowed attorneys’ fee

awards for multiple trials, was “misplaced” because the cases are distinguishable
No. 07-30674

34 235 F.3d 713, 717 (1st Cir. 2001). 

35 Id. 

36 Id. at 726. 

37 Id. at 727. 

38 Id. at 727-28. 

12

and “their outcomes are directly contrary to the statutory authority of Title VII

and Section 1988.” We turn to those cases. 

In O’Rourke v. City of Providence, the First Circuit reviewed two jury

verdicts on a female firefighter’s Title VII claim for sexual harassment. After

the first trial, the jury entered a verdict for the plaintiff in the amount of

$275,000. The trial court vacated the first verdict and ordered a new trial “on

the grounds that evidence from before the charge period had been erroneously

admitted.”34 The plaintiff had argued that the evidence was admissible under

the continuing violation doctrine. After the second trial, the jury entered a

verdict for $200,000 “based on evidence over a shorter period of time.”35 The

district court denied the defendants’ motion for a new trial after the second trial,

and it awarded attorneys’ fees to the plaintiff only for the second trial. The

defendants appealed the denial of their motion for new trial, and the plaintiff

also appealed, requesting attorneys’ fees for the first trial and reinstatement of

the first verdict.36 The First Circuit reinstated the verdict from the first trial,

finding that “the district court never explicitly addressed . . . [the plaintiff’s]

invocation of the continuing violation doctrine or why it would not apply. That

omission was itself error.”37 It also found that “a reasonable jury could have

found that . . . [the plaintiff] was a victim of a continuing violation” and that the

court’s error – in vacating the first verdict on the grounds that evidence beyond

the state statute of limitations was admitted – was not harmless.38 The court

further held,
No. 07-30674

39 Id. at 737. 

40 160 F.3d 858, 862 (2d. Cir. 1998). 

41 Id. at 867. 

42 Id.

13

We also conclude that . . . [the plaintiff] is entitled to an award of

attorneys’ fees for the firsttrial, and notjustthe second trial, for the

same reasons that we reinstate the verdict from the first trial. In its

opinion regarding . . . [the plaintiff’s] motion for attorneys’ fees after

the second trial, the court denied . . . [the plaintiff’s] attorneys’ fees

for the first trial because “her counsel was responsible for the

introduction of irrelevant and highly prejudicial evidence that

resulted in a voiding of that trial result.” That conclusion was in

error.39

In this case, unlike O’Rourke, the first trial resulted in mistrial. But O’Rourke

is informative in its implication that where a party does not cause the voiding

of a trial, that party may receive fees. 

Gierlinger v. Gleason, a Second Circuit case, is more similar to the present

case but still not directly on point. In Gierlinger, a terminated police trooper

filed a § 1983 claim against a major and troop commander, alleging that she was

fired in retaliation for her sexual harassment complaints.40 There were nine

defendants at the first trial; the district court granted judgment as a matter of

law to four of them. The jury found in favor of four of the remaining five

defendants, finding only Gleason liable to the plaintiff for $340,000 in damages.

Gleason appealed, and the Second Circuit vacated the judgment and remanded,

finding that the court erred in instructing the jury.41 At the second trial, the

court sua sponte declared a mistrial after nine days, finding that “the trial had

gotten out of control.”42 The jury after the third trial found financial damages

of more than $100,000 for loss of the plaintiff’s past and future income and

awarded one dollar in damages for infliction of emotional distress. The plaintiff
No. 07-30674

43 Id. at 876. 

44 Id. at 877-78. 

45 Id. at 878. 

14

moved for attorneys’ fees and the district court granted the motion in part,

refusing to award attorneys’ fees for plaintiff’s “appeal following the first trial,

preparation for the second trial [which resulted in mistrial]” and denying in part

“the fees requested for the second trial and for motion practice and trial

preparation time between the second and third trials.”43 The plaintiff appealed,

and the Second Circuit held that the district court abused its discretion in

refusing to award attorneys’ fees for the “66.3 hours spent by . . . [plaintiff’s

attorney] in preparing for the second trial, plus 103.1 hours in conducting that

trial for two weeks prior to the district court’s sua sponte declaration of a

mistrial.”44 The Second Circuit found,

[W]e cannot agree that it was appropriate to award no fees for trial

preparation time. Despite there having been a prior trial ofthe case,

no competent attorney would embark on a retrial without some

preparation. This is especially true when there has been a lengthy

interval between the two trials. . . . We conclude that it was

unquestionably reasonable for . . . [the plaintiff’s attorney] after the

two-year hiatus, to, inter alia, review the three-week transcript of

the first trial, review files to refresh his recollection, organize his

proposed exhibits, and prepare his witnesses. . . . Second, we cannot

agree that it was appropriate to compensate . . . [the plaintiff’s

attorney] for less than all of the time reasonably spent conducting

the second trial, for the record belies the district court’s rationale

that . . .[the plaintiff’s attorney] bore significant responsibility for

the mistrial.45

Although the second trial in Gierlinger ended in mistrial, largely because of

publicity,the Second Circuit held that plaintiff should receive attorneys’ fees for

that trial. Unlike here, the plaintiff had partially succeeded during the first

trial; it was only the second that resulted in mistrial; and she again succeeded
No. 07-30674

46 338 F.3d 736, 737 (7th Cir. 2003). 

47 Id. at 738.

48 Id. 

49 Id. at 739. 

50 Id. 

51 Id. 

15

in the third. But as the Gierlinger court recognized, where a party is not at fault

for causing mistrial, an award of attorneys’ fees may be merited. 

In Shott v. Rush-Presbyterian-St. Luke’s Medical Center, a Seventh Circuit

case,the plaintiff “prevailed on a disability discrimination claim against Rush”46

under the Americans with Disabilities Act. At the first trial, the plaintiff

brought claims of retaliation under Title VII in addition to discrimination claims.

The jury found for defendant on the Title VII claims and for plaintiff on the

disability-discrimination claim; it awarded her $250,000 in compensatory

damages and $ 1 million in punitive damages.47 The district court granted the

defendant’s motion to set aside the verdict, ordering a new trial on the grounds

that the plaintiff presented her claims to the jury in a confusing and prejudicial

manner and that the verdict was against the weight of the evidence.48 The jury

returned a verdict for the plaintiff again at the second trial, awarding $60,000

in compensatory damages and no punitive damages.49 Addressing the plaintiff’s

motion for attorneys’ fees, “[t]he district court found that based on the degree of

success . . . [plaintiff] achieved in the litigation the award should be reduced by

33%.”50 The defendants appealed, arguing that the plaintiff “should not receive

attorney’s fees for the first trial because she engaged in an unreasonable trial

strategy that caused the verdict to be set aside.”51 Citing Gierlinger and

O’Rourke, the Seventh Circuit found, “Other circuits have also observed that so

long as a plaintiff's actions are not responsible for the need for a second trial,the
No. 07-30674

52 Id. at 740. 

53 Jaffee v. Redmond, 142 F.3d 409, 416 (7th Cir. 1998). 

54 Shott, 338 F.3d at 742-43.

55 235 F.3d 713, 736 (1st Cir. 2001). 

16

plaintiff may be compensated for time spent on both proceedings.”52 The Seventh

Circuit also cited its own holding in Jaffee II, which provides,

While an unreasonable argument that necessitates further

proceedings may justify denying compensation for those

proceedings, the district court in this case found that Jaffee acted

reasonably.... [A] fee award is not automatically precluded because

the second trial was ‘necessitated by’ a reasonable but unsuccessful

argument.”53

The Seventh Circuit ultimately concluded in Shott that the plaintiff should not

receive attorneys’ fees for the cost incurred during the first trial but should

receive fees for the preparation leading up to the first trial, specifically holding

that plaintiff

We simply do not think it appropriate to award a litigant attorney’s

fees for a trial that was voided by her own unreasonable strategy.

. . . We see no problem, however, with awarding fees for the work

done in preparation for that trial because it is likely that this work

benefitted the second trial as well.54

Combined with the Jaffee II holding, Shott implies that if the plaintiff’s

unreasonable behavior did not cause the first trial verdict to be vacated, a

plaintiff may receive attorneys’ fees for the expenses incurred during a trialthat

was later vacated. This is consistent with the cases we have discussed. In

O’Rourke, where the defendant made a motion for a new trial – causing the

district court to vacate the verdict – and the appellate court later reinstated the

verdict from the first trial,55 the First Circuitfound,“The question is who should

pay for the mistake, in the sense of bearing the costs of attorneys’ fees for two
No. 07-30674

56 Id. at 737. 

57 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st

Cir. 1978)). 

58 Id. at 435 (emphasis added). 

17

trials. Because the mistake was not caused by plaintiff, there is no reason to

deny fees.”56

The Supreme Court’s decision in Hensley v. Eckerhart, cited by the district

courtin awarding attorneys’fees to the plaintiffs in this case, is also informative.

In Hensley the Court held,

A plaintiff must be a “prevailing party” to recover an attorney’s fee

under § 1988. The standard for making this threshold

determination has been framed in various ways. A typical

formulation is that“plaintiffs may be considered ‘prevailing parties'

for attorney’s fees purposes if they succeed on any significant issue

in litigation which achieves some of the benefit the parties sought

in bringing suit.”57

The Court also observed,

Many civil rights cases will present only a single claim. In other

cases the plaintiff’s claims for relief will involve a common core of

facts or will be based on related legal theories. Much of counsel's

time will be devoted generally to the litigation as a whole, making

it difficult to divide the hours expended on a claim-by-claim basis.

Such a lawsuit cannot be viewed as a series of discrete claims.

Instead the district court should focus on the significance of the

overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.58

What these cases teach us is that the question of whether a party

“prevailed” and whether a fee award is “reasonable” is not one to parse too

thinly – whether by individual claim or the number of trials required to reach

a result. The “overall relief” obtained in this case was substantial: each plaintiff

received a punitive damage award of $125,000. And plaintiffs ultimately
No. 07-30674

18

“prevailed” on their claim of a hostile work environment. At the second trial, the

jury found that Defendant had subjected Plaintiffs to a hostile work environment

and had failed to “exercise . . . reasonable care to prevent and promptly correct

any racially harassing behavior,” awarding each plaintiff a large sum.

Moreover, work done during the first trial – not simply in preparation for the

first and second trials – contributed to this result. Plaintiffs’ claims in the first

and second trial arose from the same set of facts and evidence – both trials

centered around hostile work environment discrimination. And the first trial

allowed witnesses to become familiar with the case and the trial process.

Plaintiffs’ attorney explained at oral argument that at least one of Plaintiffs’

experts had rarely, if ever, before testified; he was a key witness at both trials,

and his experience testifying at the firsttrial enhanced his understanding of the

case. The first trial also drew out important evidentiary issues that were

disputed prior to the second trial, as shown by Plaintiffs’ and Defendant’s

motions in limine that referred directly to issues from the earlier trial. And

Defendant does not contend that Plaintiffs caused or contributed to the first

mistrial.

Rather than looking at each trial in isolation, itis appropriate for a district

court under Hensley to focus on the ultimate result of the case, as the trial court

did here. As the Court in Hensley instructs, 

The product of reasonable hours times a reasonable rate does not

end the inquiry. There remain other considerations that may lead

the district court to adjust the fee upward or downward, including

the important factor of the “results obtained.” This factor is

particularly crucial where a plaintiff is deemed “prevailing” even

though he succeeded on only some of his claims for relief. In this

situation two questions must be addressed. First, did the plaintiff

fail to prevail on claims that were unrelated to the claims on which

he succeeded? Second, did the plaintiff achieve a level of success

that makes the hours reasonably expended a satisfactory basis for

making a fee award? . . . . The district court may attempt to identify

specific hours that should be eliminated, or it may simply reduce the
No. 07-30674

59 Id. at 436-37. 

60 Abner, 2007 WL 1805782 at *6. 

61 Id. at *5 (internal citation omitted). 

19

award to account for the limited success. The court necessarily has

discretion in making this equitable judgment.59

Under the reasonableness inquiry – the rule of the case here – the district court

may take into account and discountfor repetitive work, as may occur when there

are two trials. It may also consider hours that it deems unnecessary or

excessive, tailoring an award to the individual circumstances of the case with

which it is most familiar. The district court carefully considered Plaintiffs’ level

of success and the hours invested to obtain that success. As part of this inquiry

it considered the reasonableness of the time spent during the first trial, stating,

“[T]hat the first trial here resulted in a mistrial is not dispositive. The critical

question is whether the time spent preparing for and conducting the first trial

was reasonable.”60 It cut out the fees it deemed unreasonable, stating, 

Because the hours billed must have been for time reasonably spent

on work in furtherance of claims on which the plaintiffs prevailed,

the plaintiffs can be awarded no fees for the time and effort

expended on the motion for injunctive and declaratory relief, as

such motion was denied. . . . Likewise, the plaintiffs cannot recover

fees for time expended on the research of class action issues.61

In so finding, the district court identified the amounts charged for the claims on

which plaintiffs did not prevail prior to the first trial and subtracted these

amounts from the lodestar figure. It also cut out other expenses it deemed

“unreasonable,” whether because the descriptions of the work performed were

too vague or the number of hours spent were too high. In other words, the

district court followed what the Supreme Court has instructed courts to do in

Hensley: it cut out the fees charged for work on unsuccessful claims and for any
No. 07-30674

62 Id. at *7. 

63 338 F.3d at 739. 

64 Hensley, 461 U.S. at 437.

65 506 U.S. 103, 106-07.

66 Id. at 112. 

67 Id. at 115. 

20

other work that it deemed unreasonable. It then looked to the “ultimate result,”

concluding that the plaintiffs merited a fee and cost award for the first trial–

with the exception of the fees deemed unreasonable by the court – looking to the

plaintiffs’ success “on their major claim of discrimination” and concluding, “At

the end of the day, the winner is clear: the plaintiffs successfully proved a Title

VII violation” – the “major thrust” ofthe litigation.62 It quoted Shott’s conclusion

that “[w]hen two trials are required to achieve the ‘ultimate result,’ a plaintiff

should be compensated for both trials, so long as the time spent at both was

‘reasonably expended.’”63 The district court provided a “concise but clear

explanation”64 for its award, carefully considering the successful and

unsuccessful portions ofthe case as well as the reasonable and unreasonable fees

claimed by Plaintiffs.

The cases cited by the Defendants urging a different result do not mandate

a reversal of the district court’s fee award. In Farrar v. Hobby, a plaintiff in a

civil rights suit won only $1 in nominal damages after requesting $17 million in

damages.65 The Court held that “a plaintiff who wins nominal damages is a

prevailing party under § 1988”66 but that “[w]hen a plaintiff recovers only

nominal damages because of his failure to prove an essential element of his

claim for monetary relief, the only reasonable fee is usually no fee at all.”67

Plaintiffs in this case each received $125,000 in punitive damages – a judgment

that was affirmed by the Fifth Circuit. This is a far cry from the nominal
No. 07-30674

68 Id. at 114 (internal quotations omitted). 

69 2004 WL 1375298 at *2 (No. Civ.A. 96-009 JJF., D. Del. June 15, 2004).

70 Id. (citing Clark v. Township of Falls, 890 F.2d 625, 626-27 (3d Cir.1989).

71 Id. at *1. 

21

damages from Farrar, where the Court found that the “litigation accomplished

little beyond giving petitioners the moral satisfaction of knowing that a federal

court concluded that[their] rights had been violated in some unspecified way.”68

In Daniels v. Hawkins, another case cited by Defendant, a Delaware

federal district court refused to award attorneys’ fees for the plaintiff’s firsttrial

because the Third Circuit had reversed the jury verdict from the first trial,

holding that the district court had committed prejudicial error.69 The court

concluded, “Based on the Third Circuit’s decision concerning the first trial the

Court concludes that Plaintiff cannot be considered the ‘prevailing party’ with

respect to either the motion in limine or the first trial.”70 Although the plaintiff

ultimately prevailed, the court declined to award fees for the trial that was

reversed for error. Of importance in Daniels is the factthatthe prejudicial error

resulted from the trial court’s admission of DNA test results proffered by the

plaintiff, who later requested fees.71 Unlike in Daniels,the firsttrial verdict was

not reversed in this case. The jury simply could not reach a verdict. The district

court did not abuse its discretion in awarding attorneys’ fees and costs for the

first trial. 

AFFIRMED.