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Sipe v. Project Execution and Control Consulting, LLC

United States District Court, D. Maryland, Southern Division

March 10, 2016



Charles B. Day United States Magistrate Judge

Before this Court is Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Attorneys’ Fees and Costs (ECF No. 228) (the “Motion”). The Court has reviewed the Motion, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court GRANTS in part and DENIES in part the Motion.

I. Factual Background

Plaintiff Michelle Papanicolas Sipe (“Plaintiff”) filed a complaint (ECF No. 4) and an amended complaint (ECF No. 32) in this case against Defendants Barrington Cromuel and his company Project Execution and Control Consulting, LLC (“PEAC”), alleging unlawful sexual harassment and retaliatory discharge. Amended Compl. 14-15. Plaintiff originally filed her complaint in the Circuit Court for Prince George’s County, and Defendant Cromuel removed the case to this Court. Id. at 14.

Defendant Cromuel is the president and founder of PEAC. Id. at 2. In 2009, Plaintiff was hired by Defendant Cromuel to work at PEAC. Id. at 2. Plaintiff alleges that during the course of her employment, she was repeatedly sexually harassed by Defendant Cromuel. Id. In April 2010, after Plaintiff reported Defendant Cromuel’s alleged sexual harassment to a human resources representative, Defendants terminated Plaintiff from her job. Id. at 3.

On November 2, 2015, on the eve of trial before this Court, the parties entered into a dismissal of all claims, except for the right of any party to file a petition for attorney’s fees and costs. See ECF Nos. 221, 223. The parties also agreed that “for purposes of this fee petition, Plaintiff has met the requirements for fee shifting and costs under the applicable laws.” Pl.’s Mot. 4.

II. In the Motion, Plaintiff claims that under the Friolo factors, she is entitled to $351, 731.50 in attorney’s fees and $6, 734.53 in costs.

Plaintiff is seeking attorney’s fees and costs as the prevailing party and is relying on the Maryland Code, State Gov’t §20-1202(d), and the Prince George’s County Code. Pl.’s Mot. 30. Plaintiff first argues that she is entitled to all the fees and costs incurred, that no “special circumstances” caution against an award of fees and costs, and that Defendants’ “unabated, uncooperative, obstructionist, and exceedingly imprudent litigious behavior” justify a complete award. Id. at 31. Second, Plaintiff argues that the Court should not apply the hourly rates found in Appendix B of the Court’s Local Rules which are lower than what Plaintiff’s counsel charged in this case. Id. at 32. In support thereof, Plaintiff cites a case from Montgomery County Circuit Court, Balderrama v. Lockheed Martin, Inc., 2015 WL 3874239 (Md. Cir. Ct. June 12, 2015), and argues that the Court is not bound by Appendix B since it has jurisdiction based on diversity of citizenship. Id. at 32-33. Third, Plaintiff contends that the Court should apply the lodestar method and Friolo factors to assess the reasonableness of the fees and costs requested. Id. at 33.

III. Defendants claim that Plaintiff’s motion for fees and costs should be denied or reduced to a figure that is fair and reasonable.

Defendants argue that the Motion should be denied for excessive billing practices. Def.’s Opp. 2. Specifically, Defendants point out that as of August 31, 2015, Plaintiff’s total fees and costs, since the case was initiated in 2010, amounted to $178, 562.42, and when the Motion was filed in November 2015, two and a half months later, Plaintiff’s total bill (including legal fees and costs) was $358, 466.03. Id. Defendants argue that Plaintiff’s counsel billed for frivolous pleadings such as the motion for default and sanctions, filed on June 30, 2014, and that there are several instances of block billing where it is impossible to know what was done hour-by-hour. Id. at 5. Additionally, Defendants contend that the Motion should be denied because Plaintiff’s counsel engaged in conduct resulting in excessive filings without consideration for economy. Id. at 5-10. Finally, Defendants claim that the Motion should be denied because Defendants have been under financial duress for the past three years. Id. at 10-11.

IV. Plaintiff replies that Defendants’ opposition is meritless and that as of December 30, 2015, her counsel has incurred an additional $6, 385.72 in attorney’s fees and $897.40 in costs.

In response to Defendants’ arguments, Plaintiff first replies that the Court should disregard Defendants’ statements because they represent a “willful and wanton breach” of the parties’ agreement. Pl.’s Reply 2. Plaintiff explains that Defendants breached the agreement by disclosing the amount of the confidential settlement. Id. at 3. Second, Plaintiff contends that Defendants failed to rebut any of Plaintiff’s substantive factual and legal arguments. Id.

Plaintiff claims that Defendants simply offered “bald, conclusory assertions” such as “[Plaintiff] engaged in ‘excessive billing practices . . . and excessive filings.’” Id. Plaintiff argues that these conclusory assertions are not supported by expert opinions and therefore the Court should not give them any weight. Id. Third, Plaintiff replies that her counsel’s litigation of this case was proper and reasonable given Defendants’ “uncooperative” and “obstructionist” conduct throughout the course of the proceedings. Id. at 4. Plaintiff finally states that as a result of the Reply her counsel had to file in response to Defendants’ opposition, she has incurred an additional $6, 385.72 in attorney’s fees and $897.40 in costs.

V. Plaintiff’s Line Amending Plaintiff’s Motion for Attorneys Fees and Costs

On February 2, 2016, Plaintiff filed a Line Amending Plaintiff’s Motion for Attorney’s Fees and Costs (ECF No. 245) as a result of the Court’s order issued on January 28, 2016. In this filing, Plaintiff states that she is seeking $357, 092.00 in attorney’s fees and $7, 759.75 in costs.

VI. Legal Standard

As Plaintiff states and Defendants do not dispute, the substantive law of Maryland applies in this case. See Culbertson v. Jno. McCall Coal co., Inc., 495 F.2d 1403, 1406 (4th Cir. 1974) (“In an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court . . . state law denying the right to attorney’s fees or giving a right thereto . . . should be followed.”) Maryland courts normally adhere to the American rule which provides that a prevailing party in a lawsuit may not ordinarily recover attorney’s fees. See Garcia v. Foulger Pratt Dev., Inc., 155 Md.App. 634, 660 (2003). However, this rule does not prevail when there is a statute, rule or contract that expressly allows the prevailing party to recover attorney’s fees. Id. In this case, the American rule does not apply because Plaintiff is seeking attorney’s fees and costs under the Maryland Code, State Gov’t §20-1202(d), and Rule 54(d) of the Federal Rules of Civil Procedure. Pl.’s Mot. 1, 30. Maryland Code, State Gov’t §20-1202(d) provides that “[i]n a civil action under this section, the court may award the prevailing party reasonable attorney’s fees, expert witness fees, and costs.” Rule 54(d) of the Federal Rules of Civil Procedure provides that “[a] claim for attorney’s fees . . . must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Fed.R.Civ.P. 54(d)(2)(A).

To determine the reasonableness of the attorney’s fees requested under a fee-shifting statute, Maryland courts apply the lodestar approach. Friolo v. Frankel, 373 Md. 501, 504-05 (2003). This approach multiplies the reasonable number of hours spent by the attorney by a reasonable hourly rate. Id. at 519. However, as pointed out in Friolo, this is not the end of the inquiry. Id. at 505. The Court must also determine whether to make adjustments to the amount of the fee requested. Id. To determine the reasonableness of the fees requested and whether any adjustments are warranted, the Court considers the twelve factors[1] first articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974):

(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal ...

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