United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER RE: POST-TRIAL
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
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.
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.
the parties litigated multiple successive dispositive
motions,  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
Dr. Zimmerman's Motion for Attorney's Fees
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 . . . .”).
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.
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.
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
caseand 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)).
What Legal Work was Actually Performed
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.
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.
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. 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.
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
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.
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 ...