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Zimmerman v. University of Utah

United States District Court, D. Utah

April 25, 2019




         Before the court are three motions filed after the court entered judgment on a jury verdict in favor of plaintiff Judith Pinborough Zimmerman, Ph.D. (ECF No. 245). Dr. Zimmerman brings a motion for attorney's fees (ECF No. 247) and a motion to amend the judgment to include prejudgment interest (ECF No. 250). Defendant University of Utah brings a motion for review of the Clerk's taxation of costs. (ECF No. 257). For the reasons below, Dr. Zimmerman's motion for attorney's fees is granted in part and denied in part, while her motion to amend the judgment is denied. The University's motion is denied.

         I. BACKGROUND

         Dr. Zimmerman initiated this lawsuit in December of 2013, asserting three causes of action under 42 U.S.C. § 1983 and five state law causes of action, all of which emanated from Dr. Zimmerman's employment with, and subsequent termination by, the University of Utah.[1]

         After the parties litigated multiple successive dispositive motions, [2] as well as certified questions before the Utah Supreme Court, the two remaining causes of action-one against the University and one against an individual defendant-were tried to a jury on August 20, 2018. On August 29, 2018, the jury returned a verdict against the University of Utah on Dr. Zimmerman's whistleblower claim brought under the Utah Protection of Public Employees Act (the “UPPEA”). Having found the University liable, the jury awarded Dr. Zimmerman $119, 640 in compensatory damages in the form of lost wages. These timely post-trial motions followed.

         II. ANALYSIS

         A. Dr. Zimmerman's Motion for Attorney's Fees

         Under the UPPEA, “[a] court shall award the complainant all or a portion of the costs of litigation, which are defined to include reasonable attorney fees and witness fees, if the court determines that the complainant prevails.” Utah Code § 67-21-5(2). When, as here, a state statute ties the award of attorney's fees to the outcome of litigation, federal courts apply state law to resolve a fee request brought thereunder. See Xlear v. Focus Nutrition, LLC, 893 F.3d 1227, 1239 (10th Cir. 2018) (“Because a provision of the [state statute] awards attorneys' fees to the prevailing party-an outcome-based reason for awarding fees that is part and parcel of the state law cause of action-the [state statute] fee award statute is substantive, and state law controls the ability to award . . . fees . . . .”).

         By the terms of the statute, before awarding any fees the court must make a threshold finding that the complainant, Dr. Zimmerman, has prevailed. The Utah Supreme Court prescribes a number of factors to guide the prevailing party inquiry while directing trial courts not to “ignor[e] common sense when deciding which party prevailed.” See Neff v. Neff, 247 P.3d 380, 388-89 (Utah 2011) (alteration in original). “These factors include the language of the contract or statute that forms the basis for the attorney fees award, the number of claims brought by the parties, the importance of each of the claims relative to the entire litigation, and the amounts awarded on each claim.” Id. at 388.

         Throughout the course of this protracted and complex litigation, the court has consistently perceived that the UPPEA claim-the first cause of action in each complaint-was of foremost importance. Though the other claims asserted by the three complaints were colorable, the UPPEA claim-which proscribes state-sanctioned retaliation for whistleblowing activities-best fit Dr. Zimmerman's factual allegations. The jury agreed, finding that Dr. Zimmerman proved the elements of that claim while rejecting the University's highly favorable justification defense (i.e., the University could have defeated Dr. Zimmerman's winning UPPEA claim if it could establish, by the lesser “substantial evidence” standard, that the adverse action taken against Dr. Zimmerman was justified by reasons not related to her whistleblowing). The jury further found that Dr. Zimmerman had met her burden to prove both the fact of damages and the amount of damages flowing from the UPPEA claim, awarding her $119, 640 in lost wages. Thus, the court finds that Dr. Zimmerman prevailed on her UPPEA claim.

         Next, the court must determine whether the fees sought are reasonable. In making this determination, a trial court must consider (1) what legal work was actually performed; (2) how much of the work performed was reasonably necessary to adequately prosecute the matter; (3) whether the attorney's billing rate is consistent with the rates customarily charged in the locality for similar services; and (4) whether there are circumstances which require consideration of additional factors, including those listed in the Code of Professional Responsibility. Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988). Other factors that may be considered included “the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, . . . the amount involved in the case[3]and the results attained, and the expertise and experience of the attorneys involved.” Id. at 989 (quoting Cabrera v. Cottrell, 694 P.2d 622, 625 (Utah 1983)).

         1. What Legal Work was Actually Performed

         The parties' primary dispute falls under this prong. The University points out that Dr. Zimmerman seeks a wholesale award of $266, 421.50 without allocating the time spent by her attorneys to successful and unsuccessful claims, urging the court to deny fees entirely for this failure to allocate. Dr. Zimmerman responds that she is entitled to all her fees because each cause of action flowed from the same events. Neither position is correct.

         The court finds that Dr. Zimmerman's fee affidavit is sufficiently detailed to remove it from the “wholesale” fee requests that courts have rightly denied. Specifically, the billing entries contain enough information to identify those entries that may form no part of the fee award and those that report work performed in connection with successful and unsuccessful claims.

         The University submitted exhibits identifying billing entries that clearly relate to claims on which Dr. Zimmerman did not prevail. These entries largely report legal research and other tasks related to Dr. Zimmerman's unsuccessful federal claims and/or her state constitutional claims.[4] The court agrees that these entries must be deducted from the award of attorney's fees, and will accordingly deduct $25, 534.50 from the amount sought. See ECF No. 251 at Exs. A, B, and C.

         After removing those entries that clearly correspond to claims for which attorney's fees are not available, $240, 887 remains. But this number, undoubtedly, contains fees incurred in connection with losing claims for which the court must account in order to avoid a windfall to Dr. Zimmerman or her counsel.

         For example, Dr. Zimmerman incurred fees in connection with this court's certification of three questions to the Utah Supreme Court. Two of those three questions related to Dr. Zimmerman's claim alleging violations of the First Amendment to the Utah Constitution-a claim on which she did not prevail-while the third question related to her UPPEA claim, on which she did prevail. Dr. Zimmerman's counsel reports roughly 25 hours spent drafting a brief to the Utah Supreme Court in connection with those certified questions. While counsel was under no duty to note precisely the amount of time spent drafting and editing portions of the brief pertaining to compensable claims and the amount of time spent on other portions, it would nevertheless be inequitable to award attorney's fees for all the hours expended in these and other like circumstances.

         On the other hand, the number of causes of action brought by Dr. Zimmerman-thirteen over the course of the litigation-belies the fact that each of those causes of action emanated from substantially the same conduct and course of events. As a result, the work related to propounding and responding to requests for production of documents and interrogatories, as well as conducting and defending depositions, would have been largely similar even if she had asserted many fewer causes of action. Aside from the myriad discovery entries in Dr. Zimmerman's counsel's affidavit, a significant proportion of the billing entries relate to general litigation management (e.g., communicating with opposing counsel and Dr. Zimmerman regarding various logistical matters). The vast majority of these entries would persist in a hypothetical case in which Dr. Zimmerman ...

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