1

The Court did grant summary judgment with respect to the plaintiffs’ state-law

claims, (id. at 15), which the plaintiff abandoned. (Doc. 110 at 52-53).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANDRE TROTTER, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 08-0412-WS-M

 )

COLUMBIA SUSSEX CORPORATION, )

et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiff’s motion for award of attorneys’

fees, costs and expenses. (Doc. 147). The parties have submitted briefs and evidentiary

materials in support of their respective positions, (Docs. 147, 148, 152, 154), and the

motion is ripe for resolution. After carefully considering the foregoing and other relevant

material in the file, the Court concludes that the motion is due to be granted in part and

denied in part.

BACKGROUND 

The plaintiff filed a complaint against the defendants alleging that they violated 42

U.S.C. § 1981 and that defendant Columbia Sussex Corporation (“Columbia”) violated

Title II of the Civil Rights Act of 1964 and the Alabama Deceptive Trade Practices Act. 

On September 28, 2009, the Court denied the defendants’ motions for summary judgment

as to these claims. (Doc. 125).1

 The final pretrial conference was held on October 21,

with jury selection scheduled for November 3 and trial beginning November 5. (Doc. 139

at 1). On October 29, the parties notified the Court that they had settled the action,

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 1 of 25
-2-

leaving the issue of attorney’s fees for later resolution. (Doc. 142). The instant motion

followed.

DISCUSSION

All three statutes invoked by the plaintiff support an award of attorney’s fees. See

42 U.S.C. § 1988(b); id. § 2000a-3(b); Ala. Code § 8-19-10(a)(3). The parties do not

suggest that there is any meaningful difference in these provisions or their application, so

the Court indulges the same assumption.

 “There is no burden upon the district court to distill every potential argument that

could be made based upon the materials before it on summary judgment.” Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995). The Court applies the

same rule here and limits its consideration to those arguments expressly advanced and

supported by the parties. 

I. Attorney’s Fees.

“The starting point for determining the amount of a reasonable fee is the number of

hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 

Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (internal quotes omitted). 

“The product of these two figures is the lodestar and there is a strong presumption that the

lodestar is the reasonable sum the attorneys deserve.” Id. (internal quotes omitted). 

A. Reasonable Hourly Rate.

“A reasonable hourly rate is the prevailing market rate in the relevant legal

community for similar services by lawyers of reasonably comparable skills, experience,

and reputation.” Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). 

“The fee applicant bears the burden of establishing ... hourly rates.” Id. at 1303. 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 2 of 25
2

Mr. Brewster also cites a recent award to his partner based on an hourly rate of

$300 an hour. Because the award was the product only of a minor discovery dispute (so

small, the defendant did not oppose the award), and because the Magistrate Judge

explicitly stated that his award would not preclude the defendant from challenging the

hourly rate at the conclusion of the case, the Court assigns no weight to this award. 

3

Mr. Brewster’s history provides an example. He was awarded hourly rates of

$110 in 1990; $150 in 1997; $160 in 1998; $170 in 1999; $225 in 2004; and $250 in

2006. (Brewster Affidavit at 7-8).

-3-

1. Mr. Brewster. Mr. Brewster requests an hourly rate of $300. The defendants

respond that his hourly rate should be set at $250. Mr. Brewster, a specialist in civil

rights litigation, has been awarded attorney’s fees of $250 per hour four times in 2006 and

2007, and other lawyers prosecuting labor, employment and other civil rights cases in this

district (whom the defendants admit are “similarly experienced”) have been awarded fees

at the same rate at least five times between 2004 and 2009. (Brewster Affidavit at 7 &

n.2; Doc. 152 at 2-3).2

The defendants suggest vaguely that the $250 rate Mr. Brewster received in

November 2007 does not indicate a prevailing market rate, since the defendant apparently

did not contest the rate. (Doc. 152 at 3). Whatever its merits in the abstract, the argument

ignores both that Mr. Brewster has been awarded $250 an hour on at least three other

occasions and that other comparably experienced civil rights attorneys have repeatedly

been awarded the same amount. The defendants do not suggest that these awards are

subject to similar attack.

The defendants note that Mr. Brewster in November 2007 requested an hourly rate

of $250, and they conclude that he thereby admitted that this is all he should ever be paid. 

(Doc. 152 at 3-4). The implicit assumption of this argument is that a prevailing market

rate, once established, cannot rise, but the Court takes judicial notice that hourly rates do

in fact tend to rise over time.3

 By requesting $250 an hour in 2007, Mr. Brewster did not

negate a higher hourly rate in the future.

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 3 of 25
4

All were in his area of expertise, including Title VII, ERISA, FMLA, ADA,

FLSA, and Section 1983 (excessive force).

-4-

The defendants acknowledge that hourly rates in this district for civil rights

attorneys comparable to Mr. Brewster have been stuck at $250 for six years. They argue,

however, that Mr. Brewster cannot justify an increase in his hourly rate without evidence

that his skills, experience and reputation have significantly increased since he was last

awarded fees, and they assert there has been no such increase since his last award in

November 2007. (Id. at 4). Mr. Brewster, however, has continued to hone his skills and

supplement his experience in the past two years, prosecuting at least 13 other actions

(plus this one) in this district between November 2007 and October 2009.4

 The

defendants do not suggest that Mr. Brewster’s considerable reputation has been

diminished during that interval. 

The defendants’ position is that Mr. Brewster’s hourly rate should be established

based on past awards and any additional skills, experience and reputation he has gained

since. Their argument leads inexorably to the conclusion that his hourly rate should be

increased above $250. The question becomes the degree of increase.

Mr. Brewster and his declarants suggest that application of the Johnson factors

supports a $300 rate. It is true that, “[i]n determining what is a reasonable hourly rate and

what number of compensable hours is reasonable, the Court is to consider the 12 factors

enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” 

Bivins, 548 F.3d at 1350. However, most of those factors relevant to hourly rate are

already accounted for in the recent history of fee awards. The factors noted by Mr.

Brewster and his declarants which are arguably unique to this case and not captured by

past awards are the result obtained, the novelty or difficulty of the questions, and the

undesirability of the case.

The result obtained by the settlement (which will not be disclosed due a

confidentiality agreement) was significant but hardly of a magnitude that begs for an

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 4 of 25
5

Mr. Brewster notes that the settlement amount exceeds the amount his other

public accommodations and fair housing clients have recovered. (Brewster Affidavit at

17). That is a quite finite universe of comparators, and the amount of excess is not

dramatic.

6

For example, the lack of substantial damages is irrelevant because the very

purpose of an attorney’s fee statute (at least, Section 1988) is to allow counsel a

reasonable fee despite their absence. E.g., Cullens v. Georgia Department of

Transportation, 29 F.3d 1489, 1493 (11th Cir. 1994) (“The Supreme Court has rejected

proportionality of damages as a basis for a fee award,” because civil rights litigation

vindicates important civil and constitutional rights which cannot be measured strictly in

monetary terms and which the public shares the plaintiff’s interest in vindicating). 

-5-

hourly rate above $250.5 The novelty and complexity of the issues is addressed by the

number of hours reasonably expended, not by the hourly rate. Blum v. Stenson, 465 U.S.

886, 898 (1984); Johnson, 488 F.2d at 718. 

Mr. Brewster and his declarant peg the undesirability of the case to its contingent

nature (with its attendant risk of losing without compensation and with unreimbursed

expenses), the difficulty of prevailing, the unlikelihood of a large damages award, the

delay in payment even on successful cases, the reluctance of practitioners to accept cases

requiring mastery of technical legal matters or appearances in federal court, and the

unpleasant scrutiny visited by a fee application. (Brewster Affidavit at 17-18; Bagwell

Declaration at 15). Undesirability, however, has to do with the social stigma of accepting

certain kinds of cases and any resulting economic impact on counsel’s practice, Johnson,

488 F.2d at 719, something Mr. Brewster does not allege. What Mr. Brewster and his

declarant classify as aspects of undesirability are either irrelevant to the hourly rate,6

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 5 of 25
7

The ordinary means of accounting for delay in payment is to use the hourly rates

that “prevail at the completion of the case.” Kenny A. ex rel. Winn v. Perdue, 532 F.3d

1209, 1227 (11th Cir. 2008), cert. granted in part, 129 S. Ct. 1907 (2009); accord Gray ex

rel. Alexander v. Bostic, 570 F.3d 1321, 1327-28 (11th Cir. 2009). 

8

 The risk of loss inherent in contingency cases depends on the difficulty of

establishing the merits of the case, and this is “ordinarily reflected ... either in the higher

number of hours expended to overcome the difficulty, or in the higher hourly rate of the

attorney skilled and experienced enough to do so.” City of Burlington v. Dague, 505 U.S.

557, 562 (1992). Hours are discussed in Part I.B, and Mr. Brewster’s skill and experience

constitute a separate Johnson factor concerning the hourly rate. 

-6-

treated other than by adjusting the hourly rate,7 or encompassed in other Johnson factors.8

 Thus, only the skill, experience and reputation of Mr. Brewster (itself a Johnson

factor), as enhanced in recent years, can justify an hourly rate above the $250 that he and

similar attorneys have been awarded the past several years. The Court concludes that this

consideration justifies an hourly rate for Mr. Brewster of $280 as of the October 2009

conclusion of the litigation. 

2. Mr. Mackey. Mr. Mackey requests an hourly rate of $300, while the

defendants argue for a $175 rate. Mr. Mackey acknowledges that he is not an expert in

civil rights law but instead focuses on complex, paper-intensive litigation in such areas as

commercial and construction litigation, nursing home abuse, insurance cases, and

personal injury litigation. (Mackey Declaration at 1-2). He is, in Mr. Brewster’s words, a

“trial lawyer,” (Brewster Affidavit at 5), and over 2/3 of his time on this case was billed

to depositions. (Doc. 147, Exhibit 10). 

The defendants argue that, because Mr. Mackey does not specialize in civil rights

litigation, his hourly rate should be lower than Mr. Brewster’s. (Doc. 152 at 4-5). This

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 6 of 25
9

See Norman, 836 F.2d at 1301 (“A lawyer who has to educate himself generally

[as to the substantive law] may ultimately be as effective as a specialist, but he has no

right to expect to be reimbursed at the same rate as a lawyer who begins his preparation

with the finer points raised by the particular case.”); see also Duckworth v. Whisenant, 97

F.3d 1393, 1397 (11th Cir. 1996) (approving a higher hourly rate to an experienced civil

rights lawyer than to an experienced litigator with no civil rights experience); Johnson,

488 F.2d at 718 (“An attorney specializing in civil rights may enjoy a higher rate for his

expertise than others, providing his ability corresponds with his experience.”). The

plaintiff concedes that in this litigation Mr. Brewster “always had a better understanding

of the facts and its [sic] inter-relationship to the law.” (Doc. 154 at 8). 

10Mr. Mackey indicates that, in past collaborations with Mr. Brewster, they have

obtained “good recoveries for our clients and hourly fees which came in above $275.00 to

$300.00 per hour.” (Id.). It appears that Mr. Mackey is referring to payments pursuant to

continency fee agreements rather than fee awards since he also states he has not received

a fee award since 1999, (id.), and since Mr. Brewster does not claim to have ever been

awarded over $250 an hour. 

-7-

appears to be correct.9 Perhaps good arguments could be made to the contrary, but the

plaintiff has not raised them.

Unlike Mr. Brewster, Mr. Mackey does not establish a baseline prevailing rate

drawn from previous awards to him or similarly skilled and experienced lawyers. His

only identified fee award was in 1999, (Mackey Declaration at 3),10 and he identifies no

awards to other lawyers on which he relies. The Court must therefore resort to the

Johnson factors in the first instance. 

As noted, the first two factors (the time and labor required and the novelty and

difficulty of the questions) are addressed under the reasonableness of hours expended, not

the reasonableness of the hourly rate. As to the “skill requisite to perform legal service

properly,” 488 F.2d at 718, Mr. Mackey adopts the position of Mr. Brewster, who in turn

emphasizes his experience in public accommodation and fair housing cases, as well as

employment discrimination and other civil rights cases. (Brewster Affidavit at 12). This

factor, however, emphasizes the attorney’s actual performance in the case under review,

not his skill level generally, 488 F.2d at 718, and Mr. Mackey has not provided

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 7 of 25
11Declarant Bagwell speaks briefly about the billing rates of experienced lawyers

generally in “weird or complex cases,” but Johnson limits the customary fee analysis to

that charged “for similar work,” 488 F.2d at 718, and he has no evidence of charged rates

for civil rights litigation. Mr. Mackey states that he and Mr. Brewster have received fees

of $275 to $300 an hour in some of their collaborative civil rights and employment cases,

but he is evidently referring to payment pursuant to a contingent fee arrangement, in

which the hourly rate is a function of the success of the lawsuit rather than a pre-set rate. 

-8-

information from which the Court can intelligently assess this factor.

As to the “preclusion of other employment,” 488 F.2d at 718, Mr. Mackey

suggests that his work on this case prevented him from accepting other work that

typically brings in more revenue. (Mackey Declaration at 3). His time records, however,

reflect only 85.7 hours expended over the course of 17 months — an average of five

hours a month and not enough to crowd out other work. While Mr. Mackey indicates that

he did not record all of his time, there is no basis for concluding that the omitted hours are

of such magnitude as to have precluded other employment. 

Mr. Mackey’s treatment of the fifth Johnson factor — the “customary fee,” 488

F.2d at 718 — is limited to adoption of Mr. Brewster’s comments, which rely on the fee

awards addressed in Part I.A.1. (Brewster Affidavit at 13). The customary fee factor,

however, addresses fees paid by a willing client, not fees awarded by a court, which is a

separate Johnson factor. 488 F.2d at 719. The Court therefore has no evidence of a

customary fee.11

As to the sixth factor, Mr. Mackey’s fee was contingent rather than fixed. As to

the seventh, he acknowledges that time limitations “were not a factor for me.” (Mackey

Declaration at 4). As to the tenth, he relies on Mr. Brewster’s unavailing arguments as to

the undesirability of the case. As to the eleventh, he has no continuing professional

relationship with the plaintiff that might provide an incentive to cut his fee. 488 F.2d at

719. 

The eighth factor, “[t]he amount involved and the result obtained,” 488 F.2d at

718, considers both the amount of damages awarded and the litigation’s “effect on the

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 8 of 25
12The current downplaying of emotional distress damages reflects a dizzying pivot,

given that the plaintiff’s brief in opposition to summary judgment insisted that he felt “he

had been treated less than a human should be treated,” that he was “disgusted,” that he

was “extremely embarass[ed],” that he felt “demeaned,” that he “confided in his wife

about his anguish,” that he “lost sleep about it,” that he “was so distressed he woke up in

the middle of the night sitting on the side of the bed thinking about what to do,” and that

it “consumed [his] thoughts.” (Doc. 107 at 20-21). 

Moreover, the amended complaint sought punitive damages under Section 1981,

-9-

law.” Id. Given a settlement and an unremarkable summary judgment order, Mr.

Mackey does not suggest that the litigation has had any effect on the law. Instead, he

adopts Mr. Brewster’s position that the amount received was excellent, given: the

plaintiff’s minimal monetary damages; his limited emotional suffering; his pleasure that

the defendants (improperly) filed an unaccepted Rule 68 offer of judgment (thereby

making public, in conjunction with the ultimate confidential settlement, a concession of

damages due him); his satisfaction that the defendants will pay attorney’s fees (because it

will publicly teach them a lesson); his success at fending off summary judgment; and Mr.

Brewster’s lower settlements in other public accommodations and fair housing cases. 

(Brewster Affidavit at 14-17). The Court does not discern how these circumstances

support an unusually high hourly rate.

Surviving summary judgment is simply a necessary predicate to an eventual

recovery; it is not victory itself. The plaintiff’s subjective satisfaction with the result

would appear irrelevant to the objective value of the result. The public nature of the fee

award is an essentially universal aspect of success on the merits and so cannot make this

case more impressive than any other. Likewise, the filed offer of judgment is no more

public than a jury verdict; at any rate, plaintiff’s counsel cannot take credit for the

defendants’ decision to file it in violation of Rule 68. As noted previously, the degree by

which this settlement exceeds those of other cases is modest, perhaps cause for

celebration but not an elevated hourly rate. Similarly, while the settlement may be larger

than counsel expected,12 in absolute terms “the amount involved” remains limited. Nor

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 9 of 25
(Doc. 96 at 8, 11), and the plaintiff has given no indication that an award of such damages

was unrealistic.

-10-

does the plaintiff offer any authority for the implicit assumption that exceeding

expectations demonstrates an excellent “result obtained” however pedestrian the actual

amount.

The final two Johnson factors are the “experience, reputation, and ability” of the

attorney and “[a]wards in similar cases.” 488 F.2d at 718-19. Mr. Mackey’s superior

experience, reputation and skill are well set out in the plaintiff’s papers, which are in

accord with the Court’s own awareness of his ability over 25 years of practice. While Mr.

Mackey may not be an expert in civil rights litigation, neither is he a novice, having

collaborated with Mr. Brewster on over a dozen civil rights cases in this district. The

Court must also recognize that in 1999, while serving in a similar collaboration with Mr.

Brewster, Mr. Mackey received a fee award in a Title VII case in this district at an hourly

rate of $170. (Mackey Declaration at 3). The Court also notes that a local attorney with

ten years experience, in only his fifth FLSA case in this district and after a judgment

smaller than the settlement herein, was awarded a $225 hourly rate in 2004. (Brewster

Affidavit at 7 n.2).

Considering all the Johnson factors, the Court concludes that Mr. Mackey should

be compensated at an hourly rate of $250.

B. Hours Reasonably Expended.

Mr. Brewster seeks compensation for 298.8 hours, Mr. Mackey for 85.7 hours. 

(Brewster Affidavit at 20; Mackey Affidavit at 2).

“Fee applicants must exercise what the Supreme Court has termed billing

judgment. ... That means they must exclude from their fee applications excessive,

redundant, or otherwise unnecessary [hours], ... which are hours that would be

unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill,

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 10 of 25
-11-

reputation or experience of counsel.” American Civil Liberties Union v. Barnes, 168 F.3d

423, 428 (11th Cir. 1999) (citations and internal quotes omitted). That is, “a lawyer may

not be compensated for hours spent on activities for which he would not bill a client of

means who was seriously intent on vindicating similar rights ....” Norman, 836 F.2d at

1301. 

“If fee applicants do not exercise billing judgment, courts are obligated to do it for

them ....” Barnes, 168 F.3d at 428. In making this assessment, “evidence of prevailing

views among practitioners in the area on such subjects” is helpful, Norman, 836 F.2d at

1301, along with “the court’s own knowledge and experience.” Barnes, 168 F.3d at 428. 

However, it must be remembered that “the measure of reasonable hours is determined by

the profession’s judgment of the time that may be conscionably billed and not the least

time in which it might theoretically have been done.” Norman, 836 F.2d at 1301, 1306. 

Because the analysis “contemplate[s] a task-by-task examination of the hours billed,” a

fee plaintiff cannot avoid a reduction as to a particular task by arguing that the total

number of hours spent on the litigation is reasonable. Barnes, 168 F.3d at 429. 

Most of the defendants’ complaints concerning the hours expended center on the

plaintiff’s employment of two lawyers and an alleged resulting duplication of effort. 

“Redundant hours generally occur where more than one attorney represents a client.” 

Norman, 836 F.2d at 1301-02. “However, there is nothing inherently unreasonable about

a client having multiple attorneys. ... For that reason, a reduction for redundant hours is

warranted only if the attorneys are unreasonably doing the same work. An award for time

spent by two or more attorneys is proper as long as it reflects the distinct contribution of

each lawyer to the case and the customary practice of multiple-lawyer litigation.” 

Barnes, 168 F.3d at 432 (citations and internal quotes omitted). The burden to show this

rests on the fee applicant. Id. 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 11 of 25
13For the Evans and McAuthor depositions, this reduces Mr. Mackey’s hours by

5.5 (3.5 of which he concedes were billed in error). For the Hart deposition, this reduces

Mr. Brewster’s hours by 0.3. The calculation for the Hance deposition is trickier, because

the parties consolidate those hours with those for Larkin’s deposition, which was taken

the same day. Based on the deposition excerpts submitted on motion for summary

judgment, the Court concludes that Hance’s deposition consumed 1.5 hours, and Mr.

Brewster’s hours will be reduced correspondingly. (Doc. 91, Exhibit 11; Doc. 116,

Exhibits 1, 4).

-12-

1. Deposition attendance.

Both Mr. Brewster and Mr. Mackey attended 11 of the 16 depositions. The

defendants argue that only one should have attended and that 38.3 duplicative hours

should be cut. (Doc. 152 at 9-11).

The depositions at issue include those of the plaintiff; the three defendants; four

plaintiff’s witnesses; and three defense witnesses. All three declarants attest that it is

customary practice to have two lawyers attend depositions of the parties and major fact

witnesses. The plaintiff does not assert that deponents Hance, Hart, Evans and McAuthor

fit this description. (Doc. 154 at 7-9). Accordingly, the Court concludes that staffing

these depositions with two lawyers is not customary practice. Thus, the time of the

second lawyer will be eliminated.13 

The plaintiff asserts that deponents Wells, Spencer and Payne were critical

witnesses for purposes of the declarants’ statement of the customary practice. (Doc. 154

at 9). The Court can confirm from its familiarity with the case (especially from the

motions for summary judgment and motions in limine) that all three were major

witnesses, because they were eyewitnesses to the treatment of either the plaintiff, other

black customers, or white customers treated disparately. The remaining deponents were

parties and necessarily major witnesses, and the defendants’ sending of two lawyers to the

plaintiff’s deposition reinforces the declarants’ evidence as to customary practice. As to

all these deponents, the plaintiff has satisfactorily established that it is customary practice

for two lawyers to attend. 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 12 of 25
-13-

The seven remaining depositions were staffed as follows:

Defendant Columbia Taken by Brewster, Mackey in attendance

Defendant Sapp Taken by Mackey, Brewster in attendance

Defendant Larkin Taken by Mackey, Brewster in attendance

Witness Payne Taken by Mackey, Brewster in attendance

Plaintiff Defended by Brewster, Mackey in attendance

Witness Wells Defended by Mackey, Brewster in attendance

Witness Spencer Defended by Mackey, Brewster in attendance

The burden lies with the plaintiff to establish that sending both lawyers to these

depositions “reflects the distinct contribution of each lawyer to the case.” Barnes, 168

F.3d at 432. This showing must be made on a task-by-task basis and on “the record” by

“affidavits or by requesting an evidentiary hearing,” not by conclusory statements in

affidavit or by non-evidentiary assertions. Id. at 433.

Mr. Brewster states that he concentrated on factual investigation, preparing written

discovery, and researching and writing, while Mr. Mackey, who is “very effective in

conducting depositions,” contributed to developing “what strategy to undertake in

depositions and what approach and deposition questions to take.” (Brewster Affidavit at

5-6). That is, Mr. Brewster maintained command of the legal requirements for recovery,

the available evidence favorable to each side, and the needs for additional favorable and

countering evidence, while Mr. Mackey led the effort to obtain additional favorable

evidence, and to contain unfavorable evidence and contentions, at deposition. 

With this understanding of counsel’s roles, it is clear that each made a distinct

contribution to the taking and defense of the five depositions at which Mr. Mackey served

as principal counsel. Mr. Mackey, more skilled in the art of depositions, posed questions

and raised objections, with Mr. Brewster present to ensure that important lines of inquiry,

including those exposed by the depositions themselves, were explored sufficiently to

optimize the plaintiff’s chances of success. As to these five depositions, the plaintiff has

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 13 of 25
14The defendants cite a number of cases, mostly from district courts outside the

Eleventh Circuit, in which the deposition time of a second lawyer was cut. (Doc. 152 at

6-8). In none of them, however, did counsel offer evidence of a distinct contribution by

each.

15This ruling eliminates 7.0 hours for the corporate deposition and 5.3 hours for the

plaintiff’s deposition (3.0 of which he acknowledges were billed in error). 

-14-

met his burden.14

The depositions of the plaintiff and the corporate defendant stand on different

footing. Even though Mr. Mackey is the superior examiner, Mr. Brewster conducted

Columbia’s 30(b)(6) deposition and defended the plaintiff’s. There is nothing wrong with

him doing so, but it leaves open to question how Mr. Mackey’s presence reflected a

distinct contribution. The plaintiff concedes that Mr. Mackey was present for barely two

hours of his 6.7-hour deposition, which makes it even less likely that his presence

contributed uniquely to the defense of the deposition. Mr. Brewster states that he

conducted the corporate deposition (the last one taken) because he understood corporate

policies and because his recollection of the other depositions was fresh. (Brewster

Affidavit at 5). In his reply brief, the plaintiff asserts that Mr. Mackey was nevertheless

“actively involved” in the corporate deposition, (Doc. 154 at 7), but he neither explains

this involvement nor provides evidence that it occurred. Accordingly, the Court

concludes that the plaintiff has not met his burden as to these depositions, and Mr.

Mackey will not be compensated for those hours.15 

2. Deposition preparation.

The defendants seek to cut 6.8 hours of preparation time by Mr. Brewster as

redundant with preparation time by Mr. Mackey. (Doc. 152 at 11). Because Mr.

Brewster had greater command of the facts and of the governing law than Mr. Mackey,

his participation in this preparation reflected a distinct contribution, and the declarants

indicate this is a customary practice. No time will be cut on this basis.

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 14 of 25
16According to counsel, in their billing judgment they eliminated most of their

entries reflecting conferences with each other. 

17Absent authority that counsel can never charge for conversing with each other

(even though it is a ubiquitous aspect of multi-lawyer representation of defendants), the

Court cannot conclude that the de minimis amount requested is unsustainable. 

-15-

3. Counsel conferences.

Counsel billed 1.9 hours to conferences with each other.16 The defendants seek to

cut this amount in half, to 0.95 hour. (Doc. 152 at 13). They do not explain how two

lawyers can manage a case for a year and a half without ever conversing, nor do they

explain how less than one hour of such conferences could be viewed as excessive.17 No

time will be cut on this basis. 

4. Other redundant work. 

The defendants seek to cut 3.05 hours concerning discovery and witness meetings. 

(Doc. 152 at 12). They offer no argument in support, and the Court’s discussion above

adequately addresses the defendants’ request. No time will be cut on this basis.

5. Motion to compel. 

Mr. Brewster billed 13.1 hours, and Mr. Mackey 1.8 hours, in connection with the 

plaintiff’s motion to compel. The defendants argue that the Court should deny all such

fees, both because the defendants prevailed as to its primary, work product objection and

because the Magistrate Judge “did not see fit to award fees” at the time. (Doc. 152 at 15-

16). Mr. Brewster has unilaterally agreed to cut 4.85 of his hours. (Brewster Affidavit at

4 n.1; Doc. 154 at 5 n.1; id. at 12).

The defendants note that “the degree of success obtained” is a key consideration

under fee-shifting statutes. While this may be a true statement with respect to the case as

a whole, e.g., Villano v. City of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001), the

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 15 of 25
18The Court is unable to locate any indication that the plaintiff even requested such

an award, much less that the Magistrate Judge affirmatively denied any such request.

-16-

defendants offer no authority for the proposition that it applies independently to each

subsidiary motion litigated during the case, and the Court will not supply the deficiency. 

The same is true of the suggestion that fees under a fee-shifting statute must be refused if

fees under Rule 37 were not awarded.18 

The defendants also ask the Court to cut Mr. Mackey’s time as duplicative with

Mr. Brewster’s. (Doc. 152 at 13, 14 n.1). The plaintiff does not address this request. 

Given his position that Mr. Brewster was in charge of both written discovery and

research/writing and that Mr. Mackey’s focus was on depositions, that silence is

dispositive. 

In sum, Mr. Brewster’s time will be cut by 4.85 hours and Mr. Mackey’s by 1.8

hours.

6. Abandoned defendant. 

The plaintiff initially sued Marriott International, Inc. but voluntarily dismissed

this defendant. The defendants ask the Court to cut the 1.1 hours Mr. Brewster billed to

complete the dismissal. (Doc. 152 at 16). Mr. Brewster agrees to this. (Doc. 154 at 5

n.1; id. at 12).

7. Clerical/non-lawyer work.

The defendants request the Court to cut 3.1 hours of Mr. Brewster’s time, and 0.1

hour of Mr. Mackey’s time, because it consists of e-mail correspondence to and from

defense counsel and his secretary concerning depositions; preparing cover letters to

defense counsel and the client; arranging for court reporters; telefaxing documents; and

preparing deposition notices. (Doc. 152 at 16-17). 

“It is appropriate to distinguish between legal work, in the strict sense, and ...

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 16 of 25
19The entries reflect that defense counsel responded to several of the e-mails,

suggesting they were not merely clerical messages.

-17-

clerical work, ... which can often be accomplished by non-lawyers but which a lawyer

may do because he has no other help available.” Johnson, 488 F.2d at 717. Indeed,

“purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of

who performs them.” Missouri v. Jenkins ex rel. Agyei, 491 U.S. 272, 288 n.10 (1989). 

The defendants’ challenge to the e-mail correspondence and cover letters to

counsel and client fails because they have not raised a suspicion that the content of the

communications was so superficial as to amount only to clerical work.19 Likewise, the

preparation of deposition notices (which often include requests to bring specific

documents selected by counsel) does not of itself suggest a merely clerical activity. The

Court does agree that the entries for communicating with defense counsel’s secretary,

arranging for court reporters, and telefaxing documents are facially clerical. Accordingly,

Mr. Brewster’s time will be cut by 0.8 hour. 

C. Lodestar Amount. 

Mr. Brewster requested compensation for 298.8 hours, of which the Court has cut

8.55, leaving 290.25. At an hourly rate of $280, Mr. Brewster’s lodestar amount is

$81,270.

Mr. Mackey requested compensation for 85.7 hours, of which the Court has cut

19.6, leaving 66.1. At an hourly rate of $250, Mr. Mackey’s lodestar amount is $16,525.

D. Lodestar Adjustment.

As noted, there is a “strong presumption that the lodestar is the reasonable sum the

attorneys deserve.” Bivins, 548 F.3d at 1350. The plaintiff does not seek an upward

adjustment, but the defendants ask the Court to impose a 30% reduction on the lodestar

amount. (Doc. 152 at 22). 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 17 of 25
20As counsel accomplished in their exercise of billing judgment with respect to the

plaintiff’s abandoned tort claims.

-18-

The defendants argue that limited success in a lawsuit can justify a downward

adjustment. They are correct. E.g., Bivins, 548 F.3d at 1350-51 (“When the number of

compensable hours and the hourly rate are reasonable, a downward adjustment to the

lodestar is merited only if the prevailing party was partially successful in its efforts.”). 

The defendants point to several indicia of the plaintiff’s limited success, discussed below. 

First, they argue that, in addition to his three statutory claims, the plaintiff

advanced a separate “claim” for “pattern and practice,” which he “abandoned.” (Doc.

152 at 20). It is true that, when a plaintiff is unsuccessful on one of his claims for relief

and the hours expended on that claim cannot easily be segregated and disallowed,20 a

downward adjustment may be appropriate. E.g., Popham v. City of Kennesaw, 820 F.2d

1570, 1578 (11th Cir. 1987). While a pattern and practice may be advanced as a claim,

e.g, Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 965 n.18 (11th Cir. 2008), it may also

be advanced as a means of proving discriminatory intent under a separate claim. E.g.,

Cooper v. Southern Co., 390 F.3d 695, 723 (11th Cir. 2004). As is plain from its

language, the amended complaint accomplished only the latter. (Doc. 96 at 7). Nor have

the defendants explained how the parties’ settlement negated success on a pattern and

practice theory, just as they have not suggested that the settlement reflects the failure of

any of the plaintiff’s three claims. 

The defendants also assert that limited success supporting a downward adjustment

is established by comparing the relief the plaintiff received to that which he demanded. 

In particular, they note that the settlement amount is well below his early settlement

demands and that the settlement does not provide for the injunctive relief sought in the

amended complaint. (Doc. 152 at 20). A court may compare the relief requested to the

relief received in measuring the degree of the plaintiff’s success. Popham, 820 F.2d at

1580-81. In Popham, however, the plaintiff was awarded only 1.5% of his demand, while

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 18 of 25
21It is worth noting that the settlement amount is many times larger than the

defendants’ highest pre-litigation settlement offer. Thus, most of the settlement amount

must be attributed directly to the litigation effort and not to any pre-existing disposition of

the defendants to pay a significant amount.

-19-

here the plaintiff received between 20% and 25% of his highest, net-of-fee demand (and

approximately 30% to 55% of his earlier demands). The defendants have offered no

authority for the proposition that such a respectable ratio supports a downward

adjustment.21 

As to the plaintiff’s failure to receive an injunction, “a plaintiff who failed to

recover damages but obtained injunctive relief, or vice versa, may recover a fee based on

all hours reasonably expended if the relief obtained justified that expenditure of attorney

time.” Hensley v. Eckerhart, 461 U.S. 424, 435 n.11 (1983). The mere fact that the

amount of fees exceeds the amount recovered does not suffice to warrant a downward

adjustment under this inquiry, because “[t]he Supreme Court has rejected proportionality

of damages as a basis for a fee award.” Cullens v. Georgia Department of

Transportation, 29 F.3d 1489, 1493 (11th Cir. 1994) (describing City of Riverside v.

Rivera, 477 U.S. 561 (1986) (plurality) (upholding a fee award exceeding $245,000 on a

recovery of $33,350); see also Williams v. Roberts, 904 F.2d 634, 636, 640 (11th Cir.

1990) (in light of Rivera, the trial court did not abuse its discretion by not making a

downward adjustment when attorney’s fees were almost three times the damages

awarded). At any rate, the defendants have not invoked this portion of Hensley, and the

Court will not construct arguments on their behalf.

Apart from their “limited success” argument, the defendants argue a downward

adjustment should be imposed because the plaintiff unreasonably expended time trying to

prove up a pattern of discrimination by the defendants against black employees as well as

customers. (Doc. 152 at 21-22). They cite no authority for the proposition that a

downward adjustment can be based on such considerations and, as noted above, “a

downward adjustment to the lodestar is merited only if the prevailing party was partially

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 19 of 25
22The defendants insist these hours were not reasonably expended, (Doc. 152 at

21), but they did not attempt to exclude them in Part I.B on that basis. Nor is it clear that

the plaintiff’s pursuit of such matters was unreasonable. The defendants’ motion in

limine concerning such evidence was still pending when the action settled, so the Court

never resolved that or any related issue. Moreover, the very fact this evidence existed and

was potentially subject to use at trial may, for aught that appears, have played a salutary

role in the defendants’ ultimate willingness to settle.

23Nor is it clear how the plaintiff’s monetary success failed to serve the public

interest, since “[t]he damages a plaintiff recovers contributes significantly to the

deterrence of civil rights violations in the future.” Rivera, 477 U.S. at 575.

-20-

successful in its efforts.” Bivins, 548 F.3d at 1350-51 (emphasis added); see also

Hensley, 461 U.S. 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.”).22 

Finally, the defendants argue that a downward adjustment should be imposed

because the case did not create new law and did not serve the public interest. (Doc. 152

at 22). These considerations, however — as the defendants’ own authority makes plain

— are relevant only in determining whether a plaintiff receiving merely nominal damages

nevertheless accomplished something that would make an award of attorney’s fees

appropriate. Farrar v. Hobby, 506 U.S. 103, 122 (1992) (O’Connor, J., concurring). 

They are inapplicable here.23

In sum, the Court hews to the “strong presumption” that the lodestar represents the

appropriate award and declines to adjust that amount either upward or downward.

II. Expenses.

The defendants challenge four categories of expenses requested by counsel. (Doc.

152 at 23). They concede that all other items, totaling $6,288.57, should be awarded. 

(Id.). The burden is on requesting counsel “to [s]ubmit a request for expenses in a form

that demonstrates his entitlement to them.” Loranger v. Stierheim, 10 F.3d 776, 784 (11th

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 20 of 25
-21-

Cir. 1994). 

A. Subpoena Service Fee.

The defendants object that the expense of serving trial subpoenas was incurred

after the October 23 deadline recognized in the settlement agreement, that the plaintiff

provides no supporting invoice or other evidence of the expense, and that he has not

established the reasonableness of the charges. (Doc. 152 at 23-24). Because the plaintiff

does not satisfactorily respond, (Doc. 154 at 19), this $110.00 expense will not be

awarded. 

B. Private Investigator Expenses. 

Mr. Brewster paid a private investigator $2,337.19 for locating and interviewing

witnesses. The defendants do not deny that such services were needed but instead argue

they are not compensable and that the rates charged are unreasonable. (Doc. 152 at 24-

25). 

“Clearly, a ‘reasonable attorney’s fee’ [under Section 1988] cannot have been

meant to compensate only work performed personally by members of the bar. Rather, the

term must take into account the work not only of attorneys, but also of secretaries,

messengers, librarians, janitors, and others whose labor contributes to the work product

for which an attorney bills her client; and it must also take account of other expenses and

profit.” Jenkins, 491 U.S. at 285. Thus, the work of paralegals is compensable as part of

attorney’s fees. Id. More broadly, “[t]he authority granted in section 1988 to award a

reasonable attorney’s fee include[s] the authority to award those reasonable out-of-pocket

expenses incurred by the attorney which are normally charged to a fee-paying client, in

the course of providing legal services.” Northcross v. Board of Education, 611 F.2d 624,

639 (6th Cir. 1979). 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 21 of 25
24E.g., Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2nd

Cir. 1987) (ADEA); Planned Parenthood v. Attorney General, 297 F.3d 253, 267 (3rd Cir.

2002) (Section 1988) Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (Section 1988);

Associated Builders & Contractors v. Orleans Parish School Board, 919 F.2d 374, 380

(5th Cir. 1990) (Section 1988); Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir.

1996) (copyright); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir.

1986) (Section 1988); see also West Virginia University Hospitals, Inc. v. Casey, 499

U.S. 83, 87 n.3 (1991) (quoting Northcross). 

-22-

Most circuits have adopted the Northcross standard,24 and none is known to have

rejected it. The Eleventh Circuit has made a similar pronouncement but has identified the

recovery as one of costs rather than attorney’s fees. “We hold that, with the exception of

routine office overhead normally absorbed by the practicing attorney, all reasonable

expenses incurred in case preparation, during the course of litigation, or as an aspect of

settlement of the case may be taxed as costs under section 1988.” Dowdell v. City of

Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983); accord Barnes, 168 F.3d at 438-39. 

Following Dowdell, the Supreme Court ruled that the term “costs” in Section 1988

is no broader than it is in Section 1920. West Virginia University Hospitals, Inc. v.

Casey, 499 U.S. 83, 87 n.3 (1991). While the Supreme Court appears to have precluded

an award of reasonable expenses as part of costs, Dowdell’s forceful defense of allowing

civil rights attorneys their reasonable expenses, 698 F.2d at 1188-92, leaves no doubt that

the Eleventh Circuit would approve the awarding of reasonable expenses as part of

attorney’s fees. Indeed, it is doubtful that Jenkins would allow a contrary result. 

Work properly performed by paralegals and compensated as part of a Section 1988

fee award includes “locating and interviewing witnesses.” Jenkins, 491 U.S. at 288 n.10. 

When the same work is performed by a private investigator, the reasonable cost thereof is

recoverable as part of the attorney’s fee award pursuant to the Northcross formulation. 

Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994) (Section 1988). The district court

cases on which the defendants rely either were decided under Section 1920 or ignored the

lines of authority discussed above. 

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 22 of 25
25The defendants note the investigator’s mileage rate and several additional charges

but do not articulate challenges to them. (Doc. 152 at 24). The Court therefore leaves

these elements intact.

-23-

The investigator charged $55 an hour for his time in 2007 and $65 an hour

thereafter. The defendants fault Mr. Brewster for not providing evidence of the market

rate for private investigators or of this investigator’s skills, education, experience and

reputation. The defendants offer no authority for the latter proposition which, if accepted,

would similarly require affirmative evidence of the qualifications of individual paralegals

and even court reporters. As for hourly rates, judges in this district have repeatedly

approved paralegal rates of $75 an hour. See Adams v. Austal, U.S.A., L.L.C., 2009 WL

3261955 at *2 (S.D. Ala. 2009) (collecting cases). As the investigator was performing

work that a paralegal (or even attorney) may properly perform, the Court concludes that

the hourly rate is reasonable.25

C. Computerized Legal Research.

The defendants argue that the cost of such research cannot be awarded and that the

cost has not been adequately substantiated or justified. (Doc. 152 at 25-27).

The Eleventh Circuit has concluded that the costs of computerized legal research

may be recovered under Section 1988 as a reasonable expense under the Dowdell test. 

Johnson v. University College, 706 F.2d 1205, 1209 (11th Cir. 1983); see also Terry

Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1540 (11th Cir. 1986) (citing Johnson

for the proposition that “reasonable costs of computerized research may be recoverable”). 

While the appellate court has subsequently denied recovery for such expenses in a civil

rights case, Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996), it did so

without citation to Dowdell, Johnson or Terry Properties but only to Section 1920, which

does not govern the award of expenses under Section 1988. Nor may a later panel

overrule a prior panel’s decision. E.g., United States v. Kaley, 579 F.3d 1246, 1255 (11th

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 23 of 25
-24-

Cir. 2009) (identifying exceptions).

Johnson and Terry Properties are in accord with the majority view. See Trustees

v. Redland Insurance Co., 460 F.3d 1253, 1258-59 (9th Cir. 2006) (identifying the First,

Second, Ninth, Tenth and D.C. Circuits as allowing recovery of computerized legal

research costs as part of an attorney’s fee award); cf. Haroco, Inc. v. American National

Bank & Trust Co., 38 F.3d 1429, 1440-41 (7th Cir. 1994) (costs of computerized research

are part of attorney’s fees and thus cannot be recovered under Section 1920). The

defendants’ cases, (Doc. 152 at 26-27), were decided under Section 1920 and/or did not

apply the Dowdell standard. The only one of the defendants’ cases that did so expressly

agreed that computerized legal research costs are recoverable as part of an attorney’s fee

award under Section 1988. 

The defendants complain that counsel did not submit “supporting invoices or other

evidence to support these bare-bones line items” and did not show “how the ostensible

electronic research related to the claims he did not abandon or to discovery issues on

which he prevailed.” (Doc. 152 at 15-16). Counsel do not respond to these objections. 

Accordingly, this $549.18 expense will not be awarded.

D. Copying and Postage.

The defendants argue that such expenses are not recoverable and that counsel have

not shown them to be recoverable in this case on a number of grounds. (Doc. 152 at 27-

28).

The Eleventh Circuit has upheld awards under Section 1988 for both postal

expenses, Dowdell, 698 F.2d at 1192, and copying. Kenny A. ex rel. Winn v. Perdue, 532

F.3d 1209, 1219 (11th Cir. 2008), cert. granted in part, 129 S. Ct. 1907 (2009); accord

NAACP v. City of Evergreen, 812 F.3d 1332, 1337 (11th Cir. 1987) (“Under this

[Dowdell] standard, copying costs normally should be included.”). Of the defendants’

two district court cases, one did not involve Section 1988 or address the Dowdell

Case 1:08-cv-00412-WS-M Document 157 Filed 01/29/10 Page 24 of 25
-25-

standard, and the other expressly agreed that Dowdell provides for the recovery of

postage and photocopying.

The defendants complain that counsel provided only an unexplained line item,

silent as to the number of copies or the per-page cost, the number and cost of mailings, or

the reasonableness of any of these charges. In his reply brief, the plaintiff belatedly and

incompletely addresses these deficiencies. (Doc. 154 at 22). Accordingly, this $564.73

expense will not be awarded. 

CONCLUSION

 The analysis above, while the fruit of the Court’s conscientious effort to address

the limited presentation of the parties, should not be understood as a definitive treatment

of attorney’s fees and expenses under Section 1988 or similar statutes. Based on the

argument and authority presented, and except as set forth above, the plaintiff’s motion for

award of attorneys’ fees, costs and expenses is granted. Mr. Brewster is awarded

attorney’s fees in the amount of $81,270 and expenses in the amount of $6,159.24. Mr.

Mackey is awarded attorney’s fees in the amount of $16,525 and expenses in the amount

of $2,506.52. 

DONE and ORDERED this 29th day of January, 2010.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

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