-PAL Fullmer et al v. Brown et al, No. 2:2009cv01442 - Document 133 (D. Nev. 2012)
Court Description: ORDER Granting in part and denying in part 122 Plaintiff's Motion for Attorney Fees. IT IS FURTHER ORDERED that the parties file a Joint Status Report due by 10/15/2012. Signed by Judge Miranda M. Du on 10/1/12. (Copies have been distributed pursuant to the NEF - EDS)
Download PDF
<![CDATA[
-PAL Fullmer et al v. Brown et al Doc. 133 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 TIM D. FULLMER, et al., 10 Plaintiffs, v. 11 12 Case No. 2:09-cv-01442-MMD -PAL ORDER (Plf.’s Motion for Attorney Fees – dkt. no. 122). ANITA BROWN, et al., 13 Defendant. 14 15 16 I. SUMMARY Before the Court is Plaintiff’s Motion for Attorney Fees. (Dkt. no. 122.) The Court 17 18 has also considered Defendant’s Opposition and Plaintiff’s Reply. 19 discussed below, the Motion is granted in part and denied in part. 20 II. For reasons BACKGROUND 21 This case arises out of the alleged neglect and abuse suffered by Ti’mia, Ti’mar, 22 and Timothy Fulmer (“Fullmer Children”) while residing at Anita Brown’s home. In March 23 of 2004, Clark County removed the Fullmer children from the custody, care, and control 24 of their parents, Tim and Tanya Fullmer. 25 custody of Defendant Clark County. 26 Fullmer children in the care, custody, and control of Defendant Anita Brown. During the 27 course of the Fullmer Children’s stay with Defendant Anita Brown, the Fullmer Children 28 were allegedly neglected and abused. The Fullmer Children were placed in the Around March 2004, Clark County placed the Dockets.Justia.com 1 After more than two years of litigation, Plaintiff reached a settlement with 2 Defendants Clark County, Felicia Tucker, Amy Jaffe, and Susan Rothschild (collectively 3 “Clark County”). On December 7, 2011, this Court approved the settlement. (Dkt. no. 4 120.) 5 According to the terms of the settlement, Clark County would pay the Fullmer 6 Children $150,000 to settle their claims. The parties agreed Plaintiff’s attorney fees and 7 costs would be paid separately from the Fullmer Children’s settlement. 8 agreed that Plaintiff’s attorney fees should be awarded in a sum not less than $40,000 or 9 more than $60,000, subject to the Court’s discretion. Additionally, the parties agreed 10 The parties that documented costs up to $17,000 would be paid directly by Clark County. Plaintiff asks this Court to award attorney’s fees in the amount of $60,000 and 11 12 costs in the amount of $17,000. 13 III. DISCUSSION Attorney’s Fees 14 A. 15 Reasonable attorney’s fees are based on the “lodestar” calculation set forth in 16 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d 17 1115, 1119 (9th Cir. 2000). 18 multiplying “the number of hours reasonably expended on the litigation” by “a reasonable 19 hourly rate.” Hensley, 461 U.S. at 433. Next, the Court decides whether to adjust the 20 lodestar calculation based on an evaluation of the factors articulated in Kerr v. Screen 21 Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been subsumed in the 22 lodestar calculation. See Fischer, 214 F.3d at 1119 (citation omitted). The Court must first determine a reasonable fee by 23 The factors the Ninth Circuit set forth in Kerr are: 24 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. 25 26 27 28 2 1 Kerr, 526 F.2d at 70. Factors one through five are subsumed in the lodestar calculation. 2 See Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). Further, the 3 sixth factor, whether the fee is fixed or contingent, may not be considered in the lodestar 4 calculation. See Davis v. City & Cnty. of S.F., 976 F.2d 1536, 1549 (9th Cir. 1992), 5 vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). Once calculated, the 6 “lodestar” is presumptively reasonable. See Pennsylvania v. Delaware Valley Citizens’ 7 Council for Clean Air, 483 U.S. 711, 728 (1987). Finally, only in “rare and exceptional 8 cases” should a court adjust the lodestar figure. Van Gerwen v. Guarantee Mut. Life 9 Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal quotations omitted). See also Fischer, 10 214 F.3d at 1119 n. 4 (stating that the lodestar figure should only be adjusted in rare and 11 exceptional cases). 12 1. Reasonable Hourly Rate 13 Courts consider the experience, skill, and reputation of the attorney requesting 14 fees when determining the reasonableness of an hourly rate. Webb v. Ada County, 285 15 F.3d 829, 840 & n.6 (9th Cir. 2002). 16 prevailing market rates of attorneys practicing in the forum community for “similar 17 services by lawyers of reasonably comparable skill, experience and reputation.” See id.; 18 see also Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984). To inform and assist the 19 court in the exercise of its discretion, “[t]he party seeking an award of fees should submit 20 evidence supporting the . . . rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 21 (1983); see also Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987). A 22 rate determined through affidavits is normally deemed to be reasonable. Blum, 465 U.S. 23 895-96 n.11. A reasonable hourly rate should reflect the 24 Plaintiff requests reimbursement of attorney’s fees at $350 an hour for Attorney 25 Marjorie Hauf’s time based on her experience as a partner at Ganz & Hauf. Plaintiff 26 offers the affidavits of three Las Vegas attorneys as evidence that the following rates 27 charged are reasonable in the Las Vegas legal community: $350 for Partners, $250 for 28 Associates, $150 for Law Clerks, and $90 for support staff. Clark County does not 3 1 present any competing affidavits. Instead, Clark County argues that Hauf’s 2004 and 2 2005 rate when she was an associate, approved by the Ninth Circuit in Lytle v. Carl, 382 3 F.3d 978 (9th Cir. 2004), is still reasonable today especially when considering the 4 economic decline. The Court disagrees. 5 Based on the general increase in fees over time, Hauf’s experience and normal 6 hourly rate, and the nature of this case, an increase in Hauf’s fees is warranted. Hauf is 7 no longer an associate and has an additional seven years of experience. 8 evidenced by the extensive record, Hauf expended a significant amount of time and 9 labor during the litigation. Hauf has expertise and experience with child abuse and 10 neglect cases. The amount of time and labor required to adequately litigate this matter 11 precluded Hauf from accepting other employment. Clark County does not contest any of 12 these facts and all these facts support an increase in Hauf’s rate and fees. As is 13 Further, economic decline would affect the market rate, not an individual 14 attorney’s rate. Absent any competing evidence, the Court finds the prevailing rate in 15 the Las Vegas legal community presented by Plaintiff’s three affidavits to be reasonable. 16 Thus, an hourly rate of $350 for Hauf is reasonable. 17 2. Reasonable Hours Expended 18 In addition to evidence supporting the rates claimed, “[t]he party seeking an award 19 of fees should submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433; 20 see also Jordan, 815 F.2d at 1263. “Where the documentation of hours is inadequate, 21 the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433. “The 22 district court also should exclude from this initial fee calculation hours that were ‘not 23 reasonably expended’.” Hensley, 461 U.S. at 433-34 (citation omitted). “In other words, 24 the court has discretion to ‘trim fat’ from, or otherwise reduce, the number of hours 25 claimed to have been spent on the case.” Edwards v. Nat’l Business Factors, Inc., 897 26 F. Supp. 458, 460 (D. Nev. 1995) (quotation omitted); see also Gates v. Deukmejian, 27 987 F.2d 1392, 1399 (9th Cir. 1992). 28 /// 4 1 The parties agree that Attorney Hauf has personally spent 197.5 hours working on 2 the case. After reviewing Plaintiffs’ attached Exhibits 2 and 3, the Court agrees and 3 finds that Plaintiffs’ calculation of 197.5 hours of attorney labor is a reasonable amount 4 of time spent on this litigation. 5 The reasonable fee of $350 per hour multiplied by 197.5 hours of reasonably 6 expended time equals a lodestar of $69,125. Defendants do not argue for a downward 7 adjustment under Kerr. As the parties have agreed to a $60,000 cap on attorney’s fees 8 and the lodestar is above the cap amount, this Court need not consider the Kerr factors 9 to determine what amount, if any, the lodestar should be adjusted upward. The Court 10 grants fees in the amount of $60,000 to Plaintiff. 11 B. 12 In the Settlement Agreement, the parties agreed that Clark County would Costs 13 reimburse Plaintiff’s counsel up to $17,000 for costs. 14 Plaintiff to submit supporting documentation of the costs to Clark County. Clark County 15 agrees that most of Plaintiff’s documented costs are reasonable and reimbursable. The 16 total amount claimed is $17,177.15. Plaintiff has agreed to withdraw $876.60 worth of 17 scanning charges. 18 $16,300.55. Of this amount, the parties agree upon $9,143.33 of the reimbursable costs. 19 Clark County contends that other items, totaling $7,157.22, lack documentation or are 20 questionable. The parties have been working to come to an agreement as to the 21 disputed costs. (Dkt. no. 127, Ex.1.) Accordingly, the Court denies Plaintiff’s Motion as 22 it relates to costs pending additional information as to the progress of the parties’ 23 negotiations. 24 III. 25 26 (Dkt. no. 127, Ex.1). The costs provision requires This brings the new amount claimed to CONCLUSION IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney Fees is GRANTED in part and DENIED in part. 27 IT IS FURTHER ORDERED that the parties file a joint status report on or before 28 October 15, 2012, as to any remaining cost issues that need to be addressed. The 5 1 parties should indicate: (1) the progress or success of negotiations; (2) what costs, if 2 any, remain disputed, and (3) if disputed, what evidence or information the Court should 3 consider to support a finding for either side. 4 5 DATED THIS 1st day of October 2012. 6 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
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.
