The opinion of the court was delivered by: Hon. Sean F. Cox United States District Judge
On December 23, 2005, the Equal Employment Opportunity Commission ("EEOC") filed complaints as an intervening plaintiff in two cases that were consolidated for pretrial purposes: Mirna E. Serrano, et al. v. Cintas Corp. (Case No. 04-40132); and Blanca Nelly Avalos, et al. v. Cintas Corp. (Case No. 06-12311), alleging that Defendant Cintas Corporation ("Cintas") engaged in discriminatory hiring practices against female applicants in violation of 42 U.S.C. § 2000e-5, also known as a "Section 706" action.*fn1 On September 20, 2010, this Court dismissed with prejudice all of the EEOC's claims against Cintas (Doc. No. 936). The Court also dismissed with prejudice all 13 of the EEOC's individual claims against Cintas (Doc. Nos. 923-935). The matters currently before the Court are: (1) Defendant Cintas's Motion for Attorneys' Fees and Costs (Doc. No. 943); (2) Individual Plaintiffs' Objection To, And Motion To Review, Bill Of Costs; and (3) Defendant Cintas Corporation's Objections To Taxed Bill of Costs. The parties have fully briefed the issues and the Court heard oral argument on June 1, 2011. For the reasons that follow the Court shall:
1) Grant in part and deny in part Cintas' Motion for Attorney Fees and Costs;
2) Rule that the Taxed Bill of Costs shall not be taxed to the individual Plaintiffs and shall be taxed only to the EEOC; and
3) Reject Cintas' objections to the Taxed Bill of Costs as untimely.
The long and complex history of this litigation has been summarized by this Court in a number of previous Orders. Only the facts relevant to the instant objections and motions are discussed below.
Plaintiffs in the Seranno action filed their original charge of discrimination with the EEOC on or about April 7, 2000 -- over a decade ago. (See Seranno Complaint, Doc. No. 1). On July 3, 2002, two years later, the EEOC issued a determination that reasonable cause existed to believe Cintas had engaged in discriminatory hiring practices against a "class" of female applicants in hiring for Service Sales Representative ("SSR") positions. (See Doc. No. 1, Ex. A). Despite this determination, the EEOC's determination letter did not identify any applicants against whom Cintas allegedly discriminated. (See Doc. No. 3, ¶17).
In May of 2004, four years after the original charge was filed, the EEOC formally declined to issue a right to sue letter. The Seranno individual plaintiffs then filed this action on May 10, 2004. (See Doc. No. 1).
The EEOC intervened in the Seranno and Avalos matters on December 23, 2005 (See Doc. No. 98). The EEOC's first complaint alleged claims under §§ 705 and 706. Throughout the course of discovery, Cintas produced over 80,000 pages of additional documents in response to the EEOC's discovery requests.
On March 31, 2009, the Court denied class certification (see Doc. No. 627), and on June 19, 2009, the Sixth Circuit denied the individual Plaintiffs' request for an interlocutory appeal on the Court's denial of class certification.
On February 9, 2010, the Court issued its Opinion & Order granting Cintas' motion for judgment on the pleadings. (See Doc. No. 723). In that order, the Court held that the EEOC was precluded from utilizing the Teamsters framework for its cause of action against Cintas, brought solely under § 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, because the EEOC had never pleaded a claim which would entitle them to utilize the Teamsters framework.
On September 20, 2010, this Court dismissed with prejudice all of the EEOC's claims against Cintas for failure to exhaust administrative remedies (S.J. Order, Doc. No. 936). The Court also dismissed with prejudice all 13 of the EEOC's individual claims against Cintas, based upon the merits of those claims (Doc. Nos. 923-935).
On October 18, 2010, Cintas filed a "Bill of Costs" (Bill of Costs, Doc. No. 942), seeking recovery of $119,216.33 in costs incurred in this action. This amount consists of $117,564.47 in court reporter fees, $801.86 in witness fees, and $840.00 in service fees. Id. That same day, Cintas filed a Motion for Attorneys' Fees and Costs (Fee Mtn., Doc. No. 943), seeking to recover $4,595,432.89 in attorneys' fees and an additional $1,097,918.37 in expenses.
On October 21, 2010, the Clerk of the Court entered a Taxed Bill of Costs, (Taxed Costs, Doc. No. 948) in which the Clerk taxed costs in the amount of $18,295.30.
On October 28, 2010, the individual Plaintiffs filed objections to the Clerk's Taxed Bill of Costs (Plfs. Cost Obj., Doc. No. 960). On October 29, 2010, one day after the October 28, 2010 deadline, Cintas also filed objections to the Clerk's "Taxed Bill of Costs" (Cost Obj., Doc. No. 961).
The EEOC filed their response to Cintas' motion for fees on November 3, 2010 (Fee Resp., Doc. No. 964). On November 23, 2010, the EEOC filed a Response in Opposition to Cintas's Objection to Taxed Bill of Costs (Cost Resp., Doc. No. 1068). Cintas filed a reply brief in support of its objections to the Taxed Bill of Costs on November 30, 2010 (Costs Reply, Doc. No. 1069).
On June 2, 2011, one day after the hearing on these matters, the Court issued an order (Doc. No. 1075) requiring Cintas to file a supplemental brief stating why this Court should apply the FED. R. CIV. P. 6(d) three-day extension to its objections to the Clerk's Taxed Bill of Cost. The Court also permitted the EEOC to file a supplemental brief on this issue. Both parties filed supplemental briefs on June 9, 2010. (Doc Nos. 1076, 1067).
Federal Rule of Civil Procedure 54(d) provides, "Unless a federal statute, these rules, or a court order provides otherwise, costs -- other than attorney's fees -- should be allowed to the prevailing party." Moreover, 28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920. "(A)bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and §1920." Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 467, 445 (1987). The party objecting to the Taxed Bill of Costs has the burden of showing that the taxed costs were improper. BDT Products, Inc.v. Lexmark Intern, Inc., 495 F.3d 415, 420 (6th Cir. 2005).
With respect to the recovery of attorneys' fees, Section 706(k) of Title VII of the Civil Rights Act of 1964 provides:
In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
42 U.S.C. § 2000e-5(k). "(A) plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. V. EEOC, 434 U.S. 412, 422. Moreover, "[I]f a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense." Id.
I. Cintas Shall Recover A Significant Portion Of Its Attorneys' Fees And Costs.
As stated above, this Court granted Cintas' motions for summary judgment against all individual Plaintiffs and also against the EEOC as an intervening Plaintiff. In its September 20, 2010 Opinion & Order, the Court relied on EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa 2009) and adopted its central holding. (S.J. Order at 15). The Court also held that "the EEOC's failure to engage in the required 'integrated, multistep enforcement procedure' mandated by Title VII before filing Section 706 action, is fatal to the EEOC's claims on their behalf in this lawsuit." Id. Cintas now seeks attorneys' fees and costs, pursuant to Section 706(k), alleging that the EEOC's conduct throughout the litigation, including its failure to investigate and attempt to conciliate, was unreasonable and groundless.(Fee Mtn. at 1.)
The Court agrees that an award of attorney fees and costs pursuant to § 42 U.S.C. § 2000e-5(k) is warranted in this case. The EEOC's failure to engage in the required enforcement procedure mandated by Title VII, prior to filing a § 706 action, constitutes unreasonable conduct under Christiansburg. As Cintas stated in its brief, the Court in CRST came to a similar conclusion, holding that "an award of attorney's fees is appropriate because the EEOC's actions in pursuing this lawsuit were unreasonable, contrary to the procedure outlined by Title VII and imposed an unnecessary burden upon CRST and the court." EEOC v. CRST Van Expedited, Inc., 2010 WL 520564 at *9 (N.D. Iowa).
In its September 20, 2010 Opinion & Order, the Court found the following:
* The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
* The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
* The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the "class" until after the EEOC filed its initial complaint.
* The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action.
In addition to these shortcomings by the EEOC, the EEOC engaged in other egregious and unreasonable conduct. During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC's failure to properly respond to Cintas' discovery requests. Cintas succeeded on all of these motions, and the EEOC's conduct served only to prolong this decade-long litigation. For example, after this Court denied the EEOC's request to proceed on a claim for pattern or practice discrimination under §705, the EEOC refused to produce information regarding the identities of each individual who agreed to participate as a plaintiff in this action. The EEOC even refused to reveal to Cintas the identities of the women to whom it sent questionnaires regarding their potential participation as a plaintiff in this action. This information was clearly within the scope of discovery. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, "There appears to be no purpose for [the EEOC's] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas." (Doc. No. 583).*fn2
Following Magistrate Judge Scheer's order, it was apparent that after almost 10 years from the date that this case began, the EEOC had not yet identified any of the individual plaintiffs on whose behalf it sought to pursue a § 706 claim. Finally, after the EEOC initially identified approximately 40 individual plaintiffs, only seven of these individuals whom Cintas deposed were identified as part of these 40 potential claimants. Later, it was revealed that a number of these seven individuals testified that they did not believe they had claims against Cintas or testified that they did not intend to advance claims against Cintas at all. (Doc. No. 808). The Court agrees with Cintas when it states that the EEOC engaged in a "reckless 'sue first, ask questions later' strategy." (Fee Mtn. at 2).
In response, the EEOC makes a number allegations regarding the merits of its claims and states that Cintas had a full opportunity to conciliate. The EEOC argues that it "had a reasonable basis to intervene in this case and prosecute Cintas Corporation for sex discrimination," and that the evidence gathered by the EEOC during discovery showed that Cintas discriminated against women by failing to hire them. (Fee Resp. at 2.).
The Court, however, did not dismiss the EEOC's § 706 claims because they were without merit, but rather, dismissed its claims because of their failure to investigate, issue reasonable cause determinations, or conciliate the claims of the individual Plaintiffs. The Court already addressed the EEOC's merit-based contentions in its September 20, 2010 Opinion & Order, and therefore it unnecessary to discuss them here.
This Court agrees with the court in CRST when it stated, "An award of fees is necessary to guarantee that Title VII's procedures are observed in a manner that maximizes the potential for ending discriminatory practices without litigation in federal court." CRST at *9.
As a result, Cintas seeks to recover $4,595,432.89 in attorneys' fees, and an additional $1,097,918.37 in expenses. Cintas summarizes its request as:
* 33.33% for fees and costs incurred between November 2005 and March 2009 (totaling $2,579,909.44);
* 100% for fees and costs incurred exclusively in defense of the EEOC's claims from April 2009 to the present (totaling $3,013,952.53)
* 66.66% for fees incurred in defense of both the EEOC's and the individual Plaintiffs' claims between April 2009 to the present (totaling $99,489.29);
* 0% for fees incurred exclusively in defense of the individual Plaintiffs' claims between ...