request be reduced by 5.5 hours of Mr. Greenberg's time and 34.96 hours for Mr. Schreiber's time.
In general, time spent researching, drafting, and preparing unsuccessful motions is not compensable. See Castle, 872 F. Supp. 1062 at 1067. However, Plaintiff's Motion to Compel, although ultimately unsuccessful, was very significant to her case. The privilege issues raised were neither clear nor well settled. See id. It was precisely because Plaintiff had fought so hard pre-trial to obtain the Diversity Report and Defendants had fought so hard, and successfully, to hide it, that the Court did not, at trial, allow Defendants to introduce it. In that sense, Plaintiff's counsel was fully effective in protecting their client's interest. Thus, even though the Motion to Compel was unsuccessful per se, it was a motion which had to be litigated by plaintiff. Thus, Plaintiff is entitled to recover 34.96 hours of Mr. Schreiber's time to brief her Motion to Compel and Defendant's Cross-Motion for Protective Order.
Defendants also challenge hours expended on a Motion to Compel drafted by Mr. Greenberg in April 1996, but apparently not filed. Plaintiff has made no showing with respect to why that motion was not filed. Thus, the motion cannot be deemed to be "successful". Thus, the Court will strike 5.5 hours of Mr. Greenberg's time from Plaintiff's fee request.
Finally, Defendants request that all time spent preparing the Amended Complaint and the corresponding Motion for Leave to File an Amended Complaint be excluded from Plaintiff's request. They argue that those hours "should not have been spent at all", Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 881 (D.C. Cir. 1980), because Plaintiff should have filed her D.C. Human Rights Act claims when she filed her initial complaint. The Court does not agree and has ruled against Defendants on this issue on at least three prior occasions.
Plaintiffs in employment discrimination actions must often exhaust their administrative remedies before they are eligible to file a lawsuit asserting their claims. Those administrative processes may differ, as here, for various types of discrimination claims. Thus, it is not unreasonable for Plaintiff to have asserted her Title VII claims before she became eligible to assert her claims under the D.C. Human Rights Act. Defendants' request to reduce attorney time related to the filing of an Amended Complaint is denied.
Plaintiff's request for attorneys' fees for pre-trial motions will be reduced by 5.5 hours of Mr. Greenberg's time spent on the unfiled Motion to Compel.
4. Pretrial Statement
Plaintiff seeks reimbursement for 54 hours of Mr. Schreiber's time in preparing the Joint Pretrial Statement and 4.67 hours for time reviewing Defendants' Joint Pretrial Statement. Defendants contend that Plaintiff's request for attorneys' fees in connection with preparation of the pretrial statement is excessive and unreasonable and should be reduced by 31.67 hours of Mr. Schreiber's time.
This Court's standard scheduling order was entered in this case on October 24, 1995. That order directed the parties to file a Joint Pretrial Statement and included the prescribed form to be followed. See Order of Oct. 24, 1995, P 7 & App. A. The parties apparently experienced communication and scheduling difficulties in the preparation of the Joint Pretrial Statement, in no small part because they were briefing a Motion for Summary Judgment during the same time frame. See Defs.' August 5, 1996, Consent Motion for Enlargement of Time and exhibits thereto. In their Consent Motion, Defendants document the difficulties that they encountered in preparing the Joint Pretrial Statement.
The extreme acrimony between counsel surrounding the routine, albeit important, task of preparing a joint pretrial statement was one more example of the wasteful, inefficient manner in which all counsel litigated this case and the pettiness, hostility, and inability to cooperate on the most minor matters which came to dominate their professional relationships. By the time of the Pretrial Conference, relations had deteriorated so badly that it had become impossible to sort out who was precisely responsible for the particular failure to work together on any particular phase of the case.
Reviewing the entire docket, and having read all the pleadings in this case, the Court concludes that it was unreasonable for Plaintiff to put in 58.67 hours preparing a Pretrial Statement and those hours will be reduced by 50%. Thus, Plaintiff's request will be reduced by a total of 29.3 hours of Mr. Schreiber's time.
5. Attorneys' Fees Motion
Plaintiff seeks attorneys' fees for 18 hours associated with preparing the fee request. Defendants contend that Plaintiff has improperly supported her motion and request that the compensable hours be reduced by one-third. As previously noted, Plaintiff's request is sufficiently detailed for the Court to determine the reasonableness of the number of hours spent on given litigation tasks. Thus, Defendants' contention is without merit and their request will be denied.
6. Common Law Tort Claims
Defendants argue that Plaintiff's request must be reduced substantially because she did not prevail on her claims for negligent supervision, negligent infliction of emotional distress, and intentional infliction of emotional distress.
Both the Supreme Court and our Court of Appeals have addressed, dispositively, this issue. Hensley v. Eckerhart, 461 U.S. 424, 432, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Goos v. National Ass'n of Realtors, 314 U.S. App. D.C. 329, 68 F.3d 1380 (D.C. Cir. 1995).
The Supreme Court in Hensley addressed the problem of awarding attorneys' fees to a plaintiff who is deemed to have prevailed even though she succeeded on only some of her claims for relief. The Court recognized that "in some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories" and that "in other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories". 461 U.S. at 434. Under the second scenario,
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.
Where a plaintiff has obtained excellent results his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation . . . In these circumstances, the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.