Elder v. National Conference of Bar Examiners et al, No. 3:2011cv00199 - Document 99 (N.D. Cal. 2011)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEYS FEES AND GRANTING DEFENDANT'S MOTION TO DISMISS (SI, COURT STAFF) (Filed on 9/12/2011)
Download PDF
<![CDATA[
Elder v. National Conference of Bar Examiners et al Doc. 99 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TIMOTHY ELDER, 9 United States District Court For the Northern District of California 10 11 12 13 No. C 11-00199 SI Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS FEES AND GRANTING DEFENDANT’S MOTION TO DISMISS v. NATIONAL CONFERENCE OF BAR EXAMINERS, et al., Defendants. / 14 Currently before the Court is plaintiff’s motion for an award of attorneys fees and costs and 15 defendant National Conference of Bar Examiner’s (“NCBE”) motion to dismiss. Having reviewed the 16 papers submitted and arguments made, the Court GRANTS plaintiff’s motion for attorneys fees and 17 costs and GRANTS NCBE’s motion to dismiss. 18 19 BACKGROUND 20 The background of this case was discussed extensively in the Court’s February 16, 2011 Order 21 granting plaintiff’s request for a preliminary injunction. See Docket No. 52. Since that time, Mr. Elder 22 took the California Bar exam, with the accommodations required by this Court’s preliminary injunction, 23 and passed. Currently before the Court is plaintiff’s motion for attorney fees and costs as well as 24 NCBE’s motion to dismiss the case and dissolve the bond posted by Mr. Elder following this Court’s 25 preliminary injunction order. 26 27 28 Dockets.Justia.com 1 2 DISCUSSION I. Plaintiff’s Motion for Attorneys Fees and Costs 3 Plaintiff seeks an award of approximately $250,000 in attorneys fees and costs from defendant 4 NCBE as a prevailing party under the American with Disabilities Act (“ADA,” 42 U.S.C. § 12205) and 5 the California Unruh Civil Rights Act (“Unruh,” Cal. Code Civ. Proc. § 52(a)). 6 A. 8 NCBE first argues that plaintiff is not entitled to attorneys fees in this case as there was not a 9 “material alteration of the legal relationship” between the parties as required by Buckhannon Bd. & Care 10 United States District Court For the Northern District of California 7 Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001). This is incorrect. The 11 Court’s denial of NCBE’s motion to dismiss and its granting of Elder’s motion for a preliminary 12 injunction, materially altered the legal relationship between the parties and Elder secured all of the relief 13 he sought in his complaint. See Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (“A 14 preliminary injunction issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy 15 Buckhannon.”). Entitlement to Attorneys Fees 16 NCBE also asserts that Elder cannot be considered a “prevailing party” because he did not 17 achieve a ruling on the merits. NCBE Oppo. at 2. NCBE, however, ignores apposite Ninth Circuit case 18 law which holds that a plaintiff who succeeds on a preliminary injunction motion – as Elder did here 19 – is entitled to statutory attorneys fees as a prevailing party even where a plaintiff’s case is eventually 20 dismissed as moot and there is no final determination on the merits. See, e.g., Watson, 300 F.3d at 1096. 21 Finally, NCBE argues that awarding attorneys fees in this case would be unjust because NCBE 22 was not allowed to develop a complete evidentiary record and proceed to a judgment on the merits. 23 However, NCBE chose not to appeal this Court’s preliminary injunction order and now, NCBE has 24 chosen to move to dismiss this case as moot. NCBE could have sought to have this case decided on the 25 merits by arguing that even though Elder received all of the relief he sought, the case falls within the 26 capable of repetition yet evading review exception to mootness. As NCBE’s own decisions led to this 27 point, the Court rejects NCBE’s argument that attorneys fees and costs should not be awarded because 28 of the posture of the case and the state of the record. 2 1 2 The Court finds that Elder is a prevailing party under the ADA and is entitled to statutory attorneys fees and costs thereunder.1 3 B. 5 Generally, a district court begins its calculation of fees by multiplying the number of hours 6 reasonably spent on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 436, 7 433 (1983). The resulting number is frequently called the “lodestar” amount. City of Riverside v. 8 Rivera, 477 U.S. 561, 568 (1986). In determining the appropriate number of hours to be included in a 9 lodestar calculation, the district court should exclude hours “that are excessive, redundant, or otherwise 10 United States District Court For the Northern District of California 4 unnecessary.” Hensley, 461 U.S. at 434. The party seeking the award should provide documentary 11 evidence to the court concerning the number of hours spent, and how it determined the hourly rates 12 requested. Id. at 433. Reasonable Lodestar 13 14 I. Reasonable Hours 15 NCBE argues, assuming Elder is entitled to some attorneys fees, the number of hours plaintiff 16 seeks to be compensated for is excessive and unreasonable and this Court should award fees based on 17 a reduced number of compensable hours. 18 19 (a) 20 21 22 23 24 25 26 27 28 Time Spent on the Complaint, Preliminary Injunction, and NCBE’s Motion to Dismiss NCBE first argues that this case was substantially similar to Elder’s prior case in the District Court of Maryland. NCBE asserts that redlines comparing the complaints in the two cases, as well as the declarations submitted in support of the motions for preliminary injunction and oppositions to NCBE’s motions to dismiss, show substantial overlap and that Elder needed to make only minor modifications and additions to the documents filed in this Court. NCBE Oppo. at 6-10. The Court finds 1 Having prevailed under the ADA, plaintiff is also considered a prevailing party under the Unruh Act. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. 2004). As a prevailing party entitled to attorneys fees and costs under the ADA, the Court need not separately address entitlement to the same under the Unruh Act. 3 1 that given plaintiff’s need to update the complaint with facts regarding Elder’s experiences during the 2 Maryland bar exam as well as adding the Unruh Act claim to the complaint, counsels’ additional work 3 on the complaint in this case was necessary and reasonable. However, the Court finds that the 4 declarations submitted in both cases show overlap, and although they needed some work to incorporate 5 facts and opinions about Elder’s experience in Maryland, some of the work on the declarations was 6 excessive. As a result, reviewing the hours spent on updating declarations, the Court will reduce the 7 lodestar requested from 7.8 hours to 5.8 hours. With respect to the oppositions to NCBE’s motions to dismiss, the Court finds there is not 9 significant overlap given Elder’s need to address Ninth Circuit case law, significantly update the 10 United States District Court For the Northern District of California 8 pleading with new background facts and evidence subject to judicial notice, and address new 11 arguments. The Court finds, therefore, that the hours spent by counsel on that motion in this case were 12 reasonable.2 13 NCBE also requests a reduction of hours in light of the fact that the time records submitted by 14 Elder demonstrate an unnecessary duplication of effort among the seven attorneys who worked on the 15 matters at three firms. Id., at 11-2. NCBE challenges 27.2 hours spent by co-counsel on conference 16 calls, 14.6 hours spent on teleconferences and 2.3 hours in meetings with co-counsel. NCBE Oppo. at 17 12. NCBE does not identify why it believes these hours were unnecessary. Given the time frame Elder 18 faced – between receiving final word from NCBE that his accommodations would not be provided and 19 having to prepare and file suit and motions so that his preliminary injunction motion could be heard 20 sufficiently in advance of the February bar exam – plaintiff’s counsel needed to coordinate and plan 21 intensively during a relatively short period of time. The Court does not find that these hours for co- 22 counsel coordination are unreasonable. 23 NCBE also challenges the time spent by the three senior attorneys on this case, arguing that 24 hours by Lawrence Paradis and Scott LaBarre should not be allowed because these attorneys were 25 2 26 27 28 NCBE also challenges 7.1 hours it claims Karla Gilbride block billed working on the declarations. However, a review of the challenged time entries shows that Gilbride also worked on other significant matters during that time, including drafting the preliminary injunction motion. While the Court discourages the use of block billing for different tasks, because it makes review of fee motions more difficult, the Court sees nothing unreasonable about the total amount of time Ms. Gilbride spent on all of the tasks identified. See Paradis Decl., Ex. B, Gilbride 1/9/11 and 1/11/11 entries. 4 1 merely reviewing documents and pleadings others had drafted. Oppo. at 12-13. NCBE points to entries 2 on time records where these senior attorneys reviewed others’ work and contends that all of those 85.6 3 hours should not be allowed. See Logan Decl., ¶¶ 17-18. NCBE however, fails to demonstrate that 4 these “review” hours by senior attorneys – who are very experienced in ADA litigation – were not 5 necessary in this complex and arguably precedent-setting case. The Court does not find the “review” 6 hours excessive or otherwise unreasonable. Similarly, NCBE asserts that Mr. LaBarre’s time spent coming to San Francisco for the 8 preliminary injunction hearing – where he did not argue – was unnecessary and should be stricken. 9 NCBE Oppo. at 14. Mr. LaBarre’s time records demonstrate that although he did not argue at the oral 10 United States District Court For the Northern District of California 7 argument, he spent significant time preparing and moot courting Daniel Goldstein, who argued the 11 motion. The Court finds that Mr. Barre’s participation was not insignificant and notes that he did not 12 charge for the 1.5 hours actually spent attending the oral argument. 13 14 (b) Time Spent Opposing the State Bar’s Motion for Interpleader Relief 15 Plaintiff also seeks compensation from NCBE for time spent opposing the State Bar’s motion 16 for interpleader relief. NCBE did not join or support the State Bar’s motion for interpleader relief, and 17 so argues that it should not be forced to pay for time related to that motion. However, the State Bar’s 18 position throughout this case was that but for NCBE’s refusal to provide the accommodations Elder 19 sought, the State Bar would have complied with Elder’s request. The State Bar was only a party to this 20 case because of NCBE’s position and because plaintiff reasonably needed all entities necessary to afford 21 him the remedy he sought (and received) to be parties in this case. As a result, the Court does not find 22 that awarding fees to plaintiff for work spent opposing the State Bar’s motion for interpleader relief 23 would be unwarranted. 24 25 (c) Time Opposing Motion to Dismiss 26 NCBE also opposes awarding plaintiff fees on any time plaintiff spent opposing NCBE’s current 27 motion to dismiss. The Court recognizes that plaintiff was concerned about this Court retaining 28 jurisdiction to award attorneys fees, but notes that in plaintiff’s opposition to the pending motion to 5 1 dismiss, plaintiff cites persuasive authority recognizing that a district court has ancillary jurisdiction to 2 rule on a motion for statutory attorneys fees even where the underlying case has been dismissed as moot. 3 Plaintiff Oppo. at 4-7. NCBE does not and did not contest the Court’s jurisdiction to determine fees. 4 NCBE Reply at 1. 5 A more efficient course in this case would have been for the parties to stipulate to dismissal and 6 agree on a schedule for the Court’s determination of plaintiff’s attorneys fees motion. In these 7 circumstances, the Court finds that awarding attorneys fees to plaintiff for opposing NCBE’s pending 8 motion to dismiss is not justified. 9 United States District Court For the Northern District of California 10 (d) Time on “non-compensable” tasks 11 NCBE argues that plaintiff should not recover for law clerk, paralegal and attorney time spent 12 on clerical tasks, e.g., preparing pro hac vice applications and preparing case binders, that should have 13 been handled by a secretary or not billed. NCBE Oppo. at 16-17. The Court has reviewed the time 14 entries challenged by NCBE and finds that many of them do not fall into the “clerical” description 15 NCBE attempts to impose on them. See, e.g., Docket No. 72-2 at pg. 23 (NCBE categorizes an email 16 exchange between attorneys, billed by an attorney, as a clerical or otherwise “not typically billed” task). 17 Moreover, this Court agrees with other Judges in this district who have concluded that, at least in this 18 relevant legal market, “tasks such as filing documents on ECF, revising and preparing documents 19 referred to in the time records as ‘filings,’ and organizing certain files in anticipation of preparing a 20 motion are not clerical tasks.” Californians for Disability Rights v. Cal. DOT, 2010 U.S. Dist. LEXIS 21 141030 (N.D. Cal. Dec. 13, 2010) (Report and Recommendation of MEJ, adopted by 2/2/2011 Order, 22 Case No. 06-5125 SBA, Docket No. 529). 23 Finally, NCBE argues that other “unnecessary” work should not be compensated, including case 24 management work and hours that were billed after Elder won the preliminary injunction motion. See 25 Oppo. at 15. However, this Court finds that the hours incurred by plaintiff’s counsel for case 26 management issues and stipulations between the parties is compensable. This time was made necessary 27 until the point it became clear that NCBE was not going to pursue this litigation and was going to seek 28 to dismiss it. Up until that point, plaintiff had no choice but to vigorously advocate and make sure his 6 1 legal team complied with the Court’s case management duties and other case requirements.3 2 3 ii. Reasonable Hourly Rates NCBE also challenges the reasonableness of each rate charged by an attorney or paralegal for 5 plaintiff. NCBE does not, however, introduce any declarations or other evidence to suggest that the 6 rates sought by plaintiff are unreasonable. Nor does NCBE disclose the hourly rate its attorneys, 7 paralegals and law clerks charged NCBE for their comparable work in this case. Instead, NCBE asserts 8 that plaintiff’s fees should be limited to those fees approved by the District Court in Blackwell v. Foley, 9 724 F. Supp. 2d 1068 (N.D. Cal. 2010). This Court first notes that Blackwell, a case against a restaurant 10 United States District Court For the Northern District of California 4 for failure to comply with the ADA, did not – as this case did – set any new precedent or cause the 11 defendant to change a policy which impacts potentially hundreds of individuals each year across 12 California. The Court also recognizes that the declarations submitted in support of the rates sought in 13 Blackwell found that the “rates requested were below market rates for attorneys with equal experience.” 14 Id., at 1079. 15 Plaintiff has submitted declarations detailing plaintiff counsels’ extensive backgrounds in civil 16 right litigation, and their handling high profile and precedent setting cases. Given the background of 17 the plaintiff’s attorneys in this case, therefore, “[t]o determine the reasonableness of a rate, the court 18 must look to the market rate for highly qualified civil rights attorneys.” Californians for Disability 19 Rights v. Cal. DOT, 2010 U.S. Dist. LEXIS 141030, *38 (N.D. Cal. Dec. 13, 2010) (Caltrans). Plaintiff 20 has relied, in support of the requested hourly rates, on declarations submitted in support of a fee motion 21 in a different case, a complex class action that was litigated from 2006 through 2010. Caltrans, 2010 22 U.S. Dist. LEXIS 141030. The rates requested here are either identical to or slightly lower than the rates 23 recommended by Judge James and adopted by Judge Armstrong in that case. Id., at *39.4 24 NCBE argues the rates approved in Caltrans are not justified here because of differences 25 3 26 27 28 The Court notes that DRA made a 5% reduction in its fee request in an exercise of billing judgment for both their merits and fees work. See, e.g., Paradis Decl., Ex. K. 4 The hourly rates requested here are: Laurence Paradis (‘85) $730; Anna Levine (‘03) $535; Karla Gilbride (‘07) $350; Raziya Brumfield (law clerk) $175; Daniel F. Goldstein (‘73) $760; Laura Abelson (‘09) $280; Trevor Coe (‘10) $270; senior paralegal $245; and Scott LaBarre (‘93) $640. 7 1 between the nature of the cases. Caltrans was a complex class action which was litigated over a number 2 of years and which secured significant benefits for hundreds of thousands of individuals across the state. 3 Id., at *5. NCBE points out that this case was brought on behalf of one individual and was resolved in 4 a very short time. Plaintiff, however, submits evidence that following this Court’s preliminary 5 injunction order NCBE is now offering accommodations, similar to the ones the Court ordered NCBE 6 to provide Elder, to other individuals with disabilities. See Paradis Reply Decl., ¶¶-7 6; LaBarre Reply 7 Decl., ¶ 3, Ex. B. Plaintiff’s counsel also argue that their unique qualifications and high levels of 8 experience were necessary to overcome NCBE’s ongoing refusal to recognize and apply the “best 9 ensure” standard which the Ninth Circuit applied in Enyart v. Nat’l Conf. of Bar Examiners, Inc., Inc., United States District Court For the Northern District of California 10 630 F.3d 1153 (9th Cir. 2011). See Plaintiff’s Reply at 13-14. 11 The Court finds the evidence submitted by plaintiff in this case, as well as the thorough analysis 12 and adoption of similar rates in the Caltrans case, convincing. NCBE has not supported its attack on 13 the rates sought by plaintiff with any evidence. As such, the Court finds. adopts and approves the rates 14 proposed by plaintiff as reasonable. 15 16 II. NCBE’s Motion to Dissolve the Bond and Dismiss 17 NCBE moves to dissolve the bond Elder was required to post following the Court’s preliminary 18 injunction and dismiss the case, as the issues between the parties are moot because Elder was provided 19 his requested accommodations and he passed the California Bar examination. Plaintiff opposes the 20 motion on three grounds. First, Elder argues that the case should not be dismissed until the Court rules 21 on his motion for attorneys fees. That motion, however, has been decided. Elder’s second argument 22 is that the complaint in this case raises claims that are “capable of repetition but evading review” such 23 that this Court has continuing jurisdiction. Specifically, plaintiff speculates that if he is unable to secure 24 a job in California, he may look for employment in another state, then he may need to take another 25 state’s Bar Exam, and then would need accommodations that NCBE might deny. Opposition to Motion 26 to Dismiss (“MTD”) at 7-9. 27 Plaintiff’s argument is not only based wholly on speculation as to what might happen, it is also 28 without any support. In this case the complaint asserts claims against NCBE as well as against the State 8 1 Bar of California (as to which the case has been stayed) related to NCBE’s denial of Elder’s request to 2 take the California MBE with specific accommodations. See, e.g., Complaint ¶¶ 1-2, 4-6. Elder’s 3 current complaint does not involve any accommodations NCBE might or might not offer in other states 4 through other state bar licensing bodies; such claims would fall outside of the scope of the complaint 5 before this Court. 6 Plaintiff’s final argument, that the case cannot be dismissed because Elder’s $5,000 bond is still 7 in place, is likewise without merit. The bond was put in place to cover the $5,000 in costs NCBE 8 estimated it would incur in providing the required accommodations for Elder in case NCBE eventually 9 prevailed on the merits. As such, the bond protects NCBE’s interests. NCBE has waived and United States District Court For the Northern District of California 10 disclaimed any interest in the bond. Motion to Dismiss at 6:22-23. 11 The Court finds that the issues between the parties are moot. Plaintiff has received all of the 12 relief he sought in his complaint. Therefore, the bond should be dissolved and the case DISMISSED. 13 14 III. Amount of Attorneys Fees and Costs Awarded 15 During the July 29, 20011 hearing, the Court indicated to counsel that it was inclined to reduce 16 the hours plaintiff sought for work on the declarations by two hours and not award fees for the time 17 plaintiff spent opposing NCBE’s second motion to dismiss. The Court also agreed to hold its formal 18 ruling for two weeks, so that the parties could discuss settling the attorneys fees and costs issue. 19 On August 12, 2011, plaintiff submitted a revised declaration in support of his motion for 20 attorneys fees. In that declaration plaintiff’s counsel indicated that they had not heard back from NCBE 21 in response to their proposal for settling the attorneys fees and costs issue. Docket No. 95, Paradis 22 Decl., ¶ 4. Plaintiff also provided revised and updated time records and a summary listing the hours 23 worked and fees and costs sought. Based on the revised and updated time records, plaintiff seeks a final 24 award in the amount of $224,979.05 in fees and $8,970.43 in costs. The revised request includes a 25 deduction of $19,012.42, taking into account the Court’s intent to reduce by two hours the time spent 26 27 28 9 on declarations and not award fees for opposing NCBE’s motion to dismiss. Id., and exhibits thereto.5 2 The revised request also includes $5,350 in fees that plaintiff “estimates” counsel spent to prepare for 3 and attend the July 29, 2011 hearing. See id., ¶¶ 13, 15. This estimated amount does not include time 4 spent preparing for attending the hearing to argue against NCBE’s motion to dismiss. Id., Ex. K at n1. 5 NCBE filed an opposition/response to plaintiff’s revised submissions. Docket No. 96. NCBE 6 re-raises its arguments regarding duplication of effort and objecting to compensating plaintiff for time 7 spent opposing the State Bar’s motion for interpleader relief. For the reasons discussed above, those 8 arguments are rejected. NCBE, however, points out two errors in plaintiff’s revised submissions. First, 9 NCBE points out that there are duplicative time entries for Anna Levine on 7/13/2011 claiming 6.80 10 United States District Court For the Northern District of California 1 hours for work on the reply in support of fees twice. See Terlouw Decl., Ex. A (7/13/2011 time entries 11 seeking $3,638.00 twice). NCBE also points out the amount of fees sought for work between June 1, 12 2011 and July 13, 2011 by the Brown, Goldstein & Levy firm is $1,079 and not $1,709 included in 13 plaintiff’s summary table. See Paradis Decl., Ex. K. [Docket No. 95-11]. The Court, therefore, will 14 reduce the amount of fees awarded by $4,268 to correct those errors. 15 Moreover, the Court finds that plaintiff has not adequately supported his request for $5,350 in 16 “estimated” fees – as opposed to actual fees – for time spent preparing for and attending the hearing to 17 argue in support for its motion for attorneys fees. All of that time was incurred on or before July 29, 18 2011, and actual time records should have been incorporated into the Paradis declaration submitted on 19 August 12, 2011. As such, the Court finds that portion of the request is not supported by adequate 20 documentation and will not award fees incurred by plaintiff’s counsel after July 14, 2011. 21 As such, the Court will award plaintiff $215,361.05 in attorney fees and $8,970.43 in costs. 22 23 24 25 /// 26 27 5 28 NCBE contends that the amount of the deduction is actually $18,857.80. See NCBE Oppo. to Plaintiff’s Revised Fee and Cost Records at 1 & n.1. Docket No. 96. 10 1 CONCLUSION 2 For the foregoing reasons and for good cause shown, the Court hereby GRANTS plaintiff’s 3 motion for attorneys fees and costs in the amount of $224,331.48. The Court also GRANTS NCBE’s 4 motion to dissolve the bond and dismiss this case. 5 6 IT IS SO ORDERED. 7 8 Dated: September 12, 2011 SUSAN ILLSTON United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
