Wheeler v. Coss et al, No. 3:2006cv00717 - Document 90 (D. Nev. 2010)
Court Description: ORDER granting in part and denying in part 78 Plaintiff's Motion for Attorney Fees. See Order for details. Signed by Magistrate Judge Robert A. McQuaid, Jr. on 6/28/2010. (Copies have been distributed pursuant to the NEF - HJ)
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Wheeler v. Coss et al Doc. 90 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 ROBERT B. WHEELER, SR., 9 Plaintiff, 10 11 vs. BRENT COSS and CITY OF RENO, 12 Defendants. _ 13 ) ) ) ) ) ) ) ) ) ) 3:06-cv-00717-RAM MEMORANDUM DECISION AND ORDER 14 Before the court is Plaintiff’s Motion for Attorneys’ Fees and Costs (Doc. #78).1 15 Defendants opposed the motion (Doc. #82), and Plaintiff replied (Doc. #85). After a 16 thorough review, the court grants the motion in part and denies the motion in part. I. BACKGROUND 17 18 On December 23, 2006, Plaintiff Robert B. Wheeler, Sr. filed a complaint alleging he 19 was falsely arrested for violating a Temporary Protective Order (TPO) that did not exist and 20 for harassment based on his estranged wife’s report that Plaintiff said he “would deal with 21 her.” (Doc. #1). Plaintiff alleges he remained incarcerated for twenty-four days based on this 22 unlawful arrest and that he lost his job and his home. (Id.) On January 4, 2008, the court 23 issued an order ruling on the parties’ cross-motions for summary judgment. (Doc.#49.) The 24 court granted summary judgment in favor of Plaintiff, concluding that Defendant Coss did 25 not have probable cause to arrest Plaintiff for violating a TPO or to arrest Plaintiff for 26 harassment. (Id.) 27 28 1 Refers to the court’s docket number. Dockets.Justia.com 1 Defendants appealed the court’s grant of summary judgment in Plaintiff’s favor (Doc. 2 #51), and the Ninth Circuit affirmed this court’s holding (Doc. #54.) Ultimately, the parties 3 entered into a settlement agreement on February 22, 2010. (Doc. #87.) In exchange for a 4 release of all of his claims in this action, Plaintiff received $50,000 from Defendants plus 5 attorney’s fees and costs to be determined by the court. (Id.) II. LEGAL STANDARD 6 7 The Civil Rights Attorney’s Fees Award Act of 1976 provides for a prevailing plaintiff’s 8 recovery of reasonable attorney’s fees in civil rights actions. See 42 U.S.C. § 1988 (“ In any 9 action or proceeding to enforce a provision of section . . . 1983 of this title, . . . the court, in 10 its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the 11 costs. . . .”). “The purpose of § 1988 is to ensure the effective access to the judicial process for 12 persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). 13 “A party need not prevail on all issues litigated, but must succeed on at least some of 14 the merits.” Cummings v. Connell, 402 F.3d 936, 946 (9th Cir. 2005). “Where a plaintiff has 15 obtained excellent results, his attorney should recover a fully compensatory fee,” and “the fee 16 award should not be reduced simply because the plaintiff failed to prevail on every contention 17 raised in the lawsuit.” City of Riverside v. Rivera, 477 U.S. 561, 569 (1986) (quoting Hensley, 18 461 U.S. at 435). “In short, a plaintiff ‘prevails’ when actual relief on the merits of [the 19 plaintiff’s] claim materially alters the legal relationship between the parties by modifying the 20 defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 21 103, 111-12 (1992). 22 Once a party has established that it is entitled to an award of attorneys’ fees, “[i]t 23 remains for the district court to determine what fee is ‘reasonable.’” Hensley v. Eckerhart, 24 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 25 1978)). Under federal law, reasonable attorneys’ fees are generally based on the traditional 26 “lodestar” calculation set forth in Hensley. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 27 (9th Cir. 2000). The court must determine a reasonable fee by multiplying “the number of 28 2 1 hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. 2 at 433. Second, the court must decide whether to adjust the lodestar amount based on an 3 evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 4 Cir. 1975), which have not been subsumed in the lodestar calculation. See Fischer, 214 F.3d 5 at 1119 (citation omitted). 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Kerr factors are: (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. Kerr, 526 F.2d at 70. Factors one through five have been subsumed in the lodestar calculation. See Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996). Further, the Ninth Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567 (1992), held that the sixth factor, whether the fee is fixed or contingent, may not be considered in the lodestar calculation. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). To calculate the lodestar figure, a party must submit “satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). There is a strong presumption that the lodestar figure represents a reasonable fee. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987). However, upon considering the relevant Kerr factors that may bear on reasonableness, the court may adjust the award from the lodestar figure. Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006). Only in rare instances should the lodestar figure be adjusted on the basis of these considerations. Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994). 27 28 3 III. DISCUSSION 1 Plaintiff requests the following lodestar amount for work he asserts is compensable 2 3 under section 1988: 4 ATTORNEY HOURS RATE LODESTAR 5 Terri Keyser-Cooper 614.80 $350 $215,180.00 6 Diane Vaillancourt 325.42 $350 $113,897.00 7 8 Total Requested Lodestar $329,077.00 9 10 (Pl.’s Mot. for Attorneys’ Fees and Costs 30 (Doc. #78).) Defendants challenge the amount 11 of Plaintiff’s request on various grounds, each of which is discussed below. However, 12 Defendants do not dispute that Plaintiff is the “prevailing party” and, thus, is entitled to some 13 amount of attorneys’ fees. 14 A. REASONABLE RATE 15 Plaintiff argues that a reasonable hourly rate for each of his attorneys is $350 per hour. 16 (Pl.’s Mot. 26.) In support of his position, Plaintiff points to an order issued in Behymer- 17 Smith v. Coral Academy of Science, 427 F.Supp. 2d 969 (D. Nev. 2006), in which this court 18 determined that $350 per hour was a reasonable rate for Ms. Keyser-Cooper and Ms. 19 Vaillancourt. (Id. Ex. 8.) Defendants do not object to Plaintiff’s requested $350 hourly fee 20 for his attorneys. 21 In determining whether an hourly rate is reasonable, the court considers the 22 experience, skill, and reputation of the attorney requesting fees. See Webb v. Ada County, 23 285 F.3d 829, 840 n.6 (9th Cir. 2002). The reasonable hourly rate should reflect the 24 prevailing market rates in the community. See id.; see also Gates v. Deukmejian, 987 F.2d 25 1392, 1405 (9th Cir. 1992) (noting that the rate awarded should reflect “the rates of attorneys 26 practicing in the forum district”). In addition to their own statements, attorneys are required 27 28 4 1 to submit additional evidence that the rates charged are reasonable. See Jordan v. 2 Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987). 3 “When a fee applicant fails to meet its burden of establishing the reasonableness of the 4 requested rates . . . the court may exercise its discretion to determine reasonable hourly rates 5 based on its experience and knowledge of prevailing rates in the community.” Bademyan v. 6 Receivable Mgmt. Servs. Corp., 2009 U.S. Dist. LEXIS 21923, at *15, 2009 WL 605789, at 7 *5 (C.D. Cal. Mar. 9, 2009). However, “[i]t is an abuse of discretion to apply market rates in 8 effect more than two years before the work was performed.” Bell v. Clackamas County, 341 9 F.3d 858, 869 (9th Cir. 2003). 10 Here, the court finds an hourly rate of $350 per hour to be reasonable for Plaintiff’s 11 attorneys. The order issued in Behymer-Smith in 2006 supports the reasonableness of the 12 requested rate for work performed by Plaintiff’s attorneys up until 2008. As discussed above, 13 a court may not rely on the market rates in effect more than two years before work was 14 performed. However, based on its experience and knowledge of the prevailing rates in the 15 District of Nevada, the court finds that $350 per hour remains a reasonable rate for work 16 performed between 2008 and the present by Plaintiff’s attorneys. 17 B. HOURS REASONABLY EXPENDED 18 Plaintiff argues that 614.80 hours expended by Ms. Keyser-Cooper and the 325.42 19 hours expended by Ms. Vaillancourt were reasonably expended. (Pl.’s Mot. 30.) Defendant 20 contends that the number of hours spent by Plaintiff’s attorneys should be reduced because 21 Plaintiff’s counsel expended an excessive amount of time: (1) drafting the complaint; (2) 22 preparing Plaintiff for his deposition; (3) preparing to take Tina Brown’s deposition; (4) 23 preparing for the deposition of Defendant Coss; (5) producing Plaintiff’s motion for partial 24 summary judgment; (6) opposing Defendants’ motion for summary judgment; and (7) 25 preparing for oral argument before the Ninth Circuit. (Defs.’ Opp’n to Attorney’s Fees and 26 Costs 5-8 (Doc. #82).) Defendants also argue that the attorneys’ fee award should be reduced 27 for the administrative or secretarial work undertaken by Plaintiff’s attorneys. (Id. at 7-8.) 28 5 1 Although district courts have discretion in determining the amount of a fee award, “it 2 remains important . . . for the district court to provide a concise but clear explanation of its 3 reasons for the fee award.” Hensley, 461 U.S. at 437 (emphasis added). The district court 4 should give at least some indication of how it arrived at the amount of compensable hours for 5 which fees were awarded to allow for meaningful appellate review. Cunningham v. County 6 of Los Angeles, 879 F.2d 481, 485 (9th Cir. 1988) (“Courts need not attempt to portray the 7 discretionary analyses that leads to their numerical conclusions as elaborate mathematical 8 equations, but they must provide sufficient insight into their exercises of discretion to enable 9 [the appellate court] to discharge our reviewing function”). 10 At the outset, “[t]he fee applicant bears the burden of documenting the appropriate 11 hours expended in litigation and must submit evidence in support of those hours worked.” 12 Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). A court must guard against 13 awarding fees and costs which are excessive and must determine which fees and costs were 14 self-imposed and avoidable. INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th 15 Cir. 1987)). A court has “discretion to ‘trim fat’ from, or otherwise reduce, the number of 16 hours claimed to have been spent on the case.” Soler v. G & U, Inc., 801 F. Supp. 1056, 1060 17 (S.D.N.Y. 1992) (citation omitted). Time expended on work deemed “excessive, redundant, 18 or otherwise unnecessary” shall not be compensated. See Gates, 987 F.2d at 1399 (quoting 19 Hensley, 461 U.S. at 433-34). However, in awarding fees under section 1988, “[b]y and large, 20 the court should defer to the winning lawyer’s professional judgment as to how much time 21 [she] was required to spend on the case; after all, [she] won, and might not have, had [she] 22 been more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). 23 1. Drafting of Complaint 24 Defendants argue that the time Plaintiff’s counsel expended in preparing the thirteen- 25 page complaint is excessive. (Defs.’ Opp’n 5-6.) According to Defendants, the court should 26 find that 5.46 hours is reasonable for drafting the complaint. (Id.) 27 28 6 1 Plaintiff contends all 16.8 hours expended in drafting the complaint were reasonably 2 necessary. (Pl.’s Reply 7-8 (Doc. #85).) Plaintiff asserts that a well-drafted complaint 3 ensures the defendant will not file a motion to dismiss and is more efficient, overall, because 4 no time is spent in amending the complaint. (Id.) Furthermore, Plaintiff points to Ms. 5 Keyser-Cooper’s success in opposing motions to dismiss – in twenty years, Ms. Keyser- 6 Cooper has never had a case dismissed via a motion to dismiss that has not been reversed at 7 the Ninth Circuit. (Id.) 8 The court finds that the 16.8 hours expended by Plaintiff’s counsel in drafting the 9 complaint were reasonably necessary. Although Defendants maintain that the hours 10 requested are excessive and evidence the inefficiency of Plaintiff’s counsel, they fail to point 11 with any specificity to the particular hours that should be deducted. Defendants offer 12 minimal rationale for reducing the number of hours expended to 5.46 hours. In part, 13 Defendants argue that Plaintiff’s voluntary dismissal of his municipal liability claim warrants 14 a reduction in hours. (Defs.’ Opp’n 5.) However, Plaintiff states that all hours related to 15 litigation of this claim have been deleted from time records and that he does not seek 16 attorneys’ fees related to this claim. (Pl.’s Reply 8 n. 9.) In sum, the court declines to reduce 17 the hours expended by Plaintiff’s counsel in drafting the complaint. 18 2. Deposition Preparation 19 Defendants take issue with the hours Plaintiff’s counsel expended in preparation for 20 Plaintiff’s deposition, Tina Brown’s deposition, and Defendant Coss’s deposition. (Defs.’ 21 Opp’n 6.) Defendants argue that Plaintiff’s counsel expended excessive time preparing for 22 all three depositions. (Id.) 23 Plaintiff’s counsel expended 20.33 hours preparing Plaintiff for his deposition. (Pl.’s 24 Reply 9.) Defendants contend that this amount of time is excessive and should be reduced 25 to 4.33 hours. (Defs.’ Opp’n 6.) According to Defendants, Plaintiff’s deposition lasted for 26 only two hours. (Id.) Plaintiff does not appear to dispute this point, but argues that extensive 27 preparatory time was necessary in order for him to competently testify. (Pl.’s Reply 9-10.) 28 7 1 The court finds that Plaintiff’s counsel expended excessive time preparing Plaintiff for his 2 deposition. Based on its litigation knowledge and in exercising its discretion, the court 3 concludes that eight hours were reasonably necessary to adequately prepare for Plaintiff’s 4 deposition. 5 Plaintiff’s counsel expended 22.5 hours preparing for Tina Brown’s three depositions. 6 (Pl.’s Reply 11.) According to Defendants, only 4.5 hours was reasonably necessary and the 7 court should reduce Plaintiff’s requested hours. (Defs.’ Opp’n 6.) Defendants assert that Ms. 8 Brown was deposed in total for approximately 4.5 hours. (Id.) Although Plaintiff does not 9 dispute Defendants’ assertion that Ms. Brown was only deposed for 4.5 hours, he argues that 10 because Ms. Brown was a difficult deponent, and three separate depositions were necessary, 11 extensive preparation was required. 12 importance of thorough preparation, but nevertheless, concludes that the time expended to 13 prepare for Ms. Brown’s depositions was excessive. Accordingly, the court finds that eight 14 hours were reasonably necessary and reduces the amount of time Plaintiff’s counsel allots for 15 preparing to depose Ms. Brown. (Pl.’s Reply 11-12.) The court understands the 16 Plaintiff’s counsel expended 7.5 hours preparing for Defendant Coss’s deposition. 17 (Pl.’s Reply 12.) Defendants argue that the court should find that only three hours were 18 reasonably necessary. 19 deposition lasted for two hours and fifteen minutes. (Id.) The court finds 7.5 hours of 20 preparation for an approximately two-hour deposition to be excessive and concludes that only 21 four hours were reasonably necessary for this task. (Defs.’ Opp’n 6.) According to Defendants, Defendant Coss’s 22 In sum, in exercising its discretion, the court reduces the number of hours requested 23 by Plaintiff for taking the deposition of Plaintiff, Tina Brown, and Defendant Coss by 30.33 24 hours. 25 3. 26 Defendants argue that Plaintiff’s counsel expended an excessive amount of time 27 preparing Plaintiff’s motion for partial summary judgment and in preparing Plaintiff’s 28 Summary Judgment Briefing 8 1 opposition to Defendants’ motion for summary judgment. (Defs.’ Opp’n 6-7.) Defendants 2 calculate the number of hours Plaintiff’s counsel spent on the summary judgment motion to 3 be 89.33. (Id.) Specifically, Defendants contend that the 89.33 hours Plaintiff’s counsel 4 spent on Plaintiff’s motion for summary judgment should be reduced to 19.33 hours. (Id.) 5 Defendants assert that the 33.45 hours Plaintiff’s counsel spent opposing Defendants’ motion 6 for summary judgment should be reduced to 5.45 hours. (Id.) 7 As to his motion for partial summary judgment, Plaintiff contends that Defendants 8 exaggerate the number of hours expended by his attorneys. (Pl.’s Reply 13.) According to 9 Plaintiff, only 46.39 hours were expended in preparing this document. (Id.) 10 After reviewing Plaintiff’s counsel’s time records, the court exercises its discretion and 11 finds that 46.39 hours is a reasonable amount of time to prepare a partial motion for 12 summary judgment. Defendants fail to provide a sufficiently specific basis to justify 13 decreasing the amount of time expended by Plaintiff’s counsel. Thus, the court declines to 14 reduce the amount of time Plaintiff requests. 15 As to his opposition to Defendants’ motion for summary judgment, Plaintiff argues 16 that Defendants similarly inflate the number of hours expended by his attorneys. (Pl.’s Reply 17 13-14.) According to Plaintiff, only 20.86 hours were expended in preparing the opposition. 18 (Id. at 14.) 19 Although Defendants claim that Plaintiff’s counsel spent excessive time preparing the 20 opposition, Defendants fail to either identify how they determined that Plaintiff’s counsel 21 expended 33.45 hours or why 5.45 hours is a reasonable amount of time to prepare an 22 opposition to summary judgment. After reviewing Plaintiff’s counsel’s time records, the court 23 finds that 20.86 hours is the actual time Plaintiff’s counsel expended on preparing the 24 opposition. Moreover, the court exercises its discretion and concludes that 20.86 hours is a 25 reasonable amount of time to prepare an opposition to summary judgment. 26 /// 27 /// 28 9 1 4. Attorneys Fees Incurred on Appeal 2 Defendants argue that the time Plaintiff’s counsel expended in preparation for oral 3 argument before the Ninth Circuit is unreasonable and excessive. (Defs.’ Opp’n 8.) In 4 Defendants’ view, the court should only award Plaintiff attorneys’ fees in the amount 5 corresponding to the time spent in preparing Plaintiff’s appellate brief. (Id.) 6 A district court is not authorized to rule on the request for appellate attorneys fees 7 unless the fee applicant has requested such fees from the circuit court. Cummings v. Connell, 8 402 F.3d 936, 948 (9th Cir. 2005). Ninth Circuit Rule 39-1.6 provides that a request for 9 attorneys fees must be filed with the circuit clerk within fourteen days from the expiration of 10 the period within which a petition for rehearing may be filed. See Circuit Rule 39-1.6, 1.8. 11 If a petition for rehearing is filed, a request for attorneys fees must be filed with the circuit 12 clerk within fourteen days after the court’s disposition of the petition. Id. The circuit rules 13 allow for the transfer of a fees-on-appeal request to the district court for consideration, but 14 “the decision to permit the district court to handle the matter rests with the court of appeals.” 15 Cummings, 402 F.3d at 948. Certain statutes allow for requests for appellate fees requests 16 to be made to the district court, but attorneys fees-on-appeal requests pursuant to § 1988 17 must be filed in the first instance in the circuit court. Compare Natural Resources Defense 18 Council, Inc. v. Winter, 543 F.3d 1152, 1163-64 (9th Cir. 2008) (holding that a fee request 19 under Equal Access to Justice Act, 28 U.S.C. § 2412, allows for the district court to properly 20 award fees for all levels of litigation), with Cummings, 402 F.3d at 948 (holding that 21 appellate fees requested pursuant to 42 U.S.C. § 1983 must be filed with the Ninth Circuit 22 clerk in the first instance). 23 Here, Plaintiff does not indicate that he made any requests for fees from the circuit 24 court or that he filed any motion to transfer consideration of attorneys’ fees on appeal. The 25 court recognizes that this may have been an oversight, and that this oversight is met with 26 harsh results; 27 Therefore, the court finds that the Plaintiff is not entitled to attorneys’ fees incurred in the 28 however, this court is without authority to award any appellate fees. 10 1 course of his appeal. Plaintiff indicates that Ms. Keyser-Cooper expended 50.1 hours on 2 appellate briefing and 66.9 hours on oral argument. (Pl.’s Mot. Ex. 1 at 16-20.) Ms. 3 Vaillancourt expended 45.3 hours on appellate briefing and .51 hours on oral argument. (Id. 4 Ex. 2 at 1-2.) The court reduces Plaintiffs’ attorneys’ fees accordingly. 5 5. Administrative or Secretarial Work 6 Defendants argue that Ms. Keyser-Cooper unreasonably seeks attorney-level 7 compensation for forty hours of administrative or secretarial work. (Defs.’ Opp’n 7-8.) 8 Defendants contend that $14,000 of excessive charges result from this time. (Id.) 9 Plaintiff concedes that the drafting of subpoenas and notices are classically paralegal 10 work and identifies 8.8 hours devoted to these tasks. (Pl.’s Reply 14.) Plaintiff voluntarily 11 reduces the amount of attorney time and requests compensation for the 8.8 hours Ms. 12 Keyser-Cooper expended at a paralegal fee of $90 per hour. (Id. at 14-15.) As to the 13 remaining time Defendants identify as administrative or secretarial work, Plaintiff contends 14 that such work is properly characterized as attorney tasks. (Id. at 14-16.) 15 In light of Plaintiff’s concession, the court reduces the amount of Plaintiff’s attorneys’ 16 fees by 8.8 hours. Additionally, the court agrees with Plaintiff that paralegal time is 17 compensable if not incorporated into attorney time already sought. See Trs. of the Constr. 18 Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1256-57 (9th 19 Cir. 2006). Plaintiff seeks compensation for the 8.8 hours of paralegal work at a rate of $90 20 per hour. The court concludes that $90 per hour is a reasonable hourly rate in this locality. 21 See SOC-SMG, Inc. v. Christian & Timbers, LLC, 2010 U.S. Dist. LEXIS 50062, at *7 (D. Nev. 22 May 20, 2010) (finding $100 per hour to be a reasonable hourly rate for a paralegal). Thus, 23 the court awards Plaintiff $792 in paralegal fees but reduces the total amount of attorney 24 time by 8.8 hours. 25 After reviewing Plaintiff’s documentation, the court finds that the remaining 32.8 26 hours are properly billed as attorney time. In response to Defendants’ argument, Plaintiff 27 asserts that the time spent by counsel reviewing the docket and case files, organizing and 28 11 1 reviewing documents, and scheduling with Defendants’ counsel required an attorney’s 2 judgment to be properly executed. (Pl.’s Reply 15-16.) According to Plaintiff, the work 3 undertaken in the 32.8 disputed hours would be inappropriate to delegate to a paralegal or 4 secretary. (Id.) The court agrees and declines Defendants’ invitation to reduce Plaintiff’s 5 attorneys’ fees on this basis. 6 C. PROPORTIONALITY OF ATTORNEYS’ FEES TO PLAINTIFF ’S RECOVERY 7 Defendants contend that Plaintiff’s requested attorneys’ fee award should be adjusted 8 downward because Plaintiff’s attorneys’ fees are grossly disproportionate to his settlement 9 amount. (Defs.’ Opp’n 4-5.) Furthermore, Defendants argue that Plaintiff only achieved 10 limited success and that Plaintiff’s success did not convey any significant public benefit 11 because he only sought monetary recovery and not injunctive relief. (Id. at 3.) Specifically, 12 Defendants assert that the court should not award more than $65,891.71 in attorneys’ fees 13 in total. (Id. at 8.) 14 Plaintiff responds that he fully achieved his goal in litigation by establishing liability 15 at summary judgment and securing a $50,000 settlement. (Pl.’s Mot. 13.) According to 16 Plaintiff, he did not seek a specific dollar amount in damages in his complaint because he did 17 not know what the value of his case would be until his attorneys evaluated his damages. (Id.) 18 Plaintiff contends that Defendants’ proportionality argument is premised on a figure used in 19 confidential settlement negotiations and not a figure that represents the amount sought in 20 the litigation. (Pl.’s Reply 2-3.) 21 “Under Hensley, the reasonableness of a fee award is determined by answering two 22 questions: ‘First, did the plaintiff fail to prevail on claims that were unrelated to the claims 23 on which he succeeded? Second, did the plaintiff achieve a level of success that makes the 24 hours reasonably expended a satisfactory basis for making a fee award?’” McCown v. City of 25 Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009) (quoting Hensley, 461 U.S. at 434). 26 /// 27 /// 28 12 1 1. 2 “A plaintiff is not eligible to receive attorney’s fees for time spent on unsuccessful 3 claims that are unrelated to a plaintiff[’]s successful § 1983 claim.” McCown, 565 F.3d at 4 1103. Here, Plaintiff’s complaint contained two claims – a false arrest claim and a municipal 5 liability claim. (Doc. #1.) Plaintiff voluntarily dismissed his municipal liability claim before 6 trial and indicates that he does not seek fees for hours related to its effort. (Pl.’s Reply 8.) 7 Thus, the court need not determine whether Plaintiff’s two claims are “unrelated” because 8 Plaintiff does not seek fees related to the municipal liability claim. 9 2. Failure to Succeed on Unrelated Claims Level of Success 10 “[A]ttorney’s fees awarded under 42 U.S.C. § 1988 must be adjusted downward where 11 the plaintiff has obtained limited success on his pleaded claims, and the result does not confer 12 a meaningful public benefit.” McCown, 565 F.3d at 1103. “Although the Supreme Court has 13 disavowed a test of strict proportionality, it also suggested that a comparison of damages 14 awarded to damages sought is required.” Id. at 1104 (citing City of Riverside v. Rivera, 477 15 U.S. 561, 576 (1986) (Powell, J., concurring)). In civil rights cases, a rule of proportionality 16 is inappropriate “ because it fails to recognize the nature of many, of not most civil rights 17 cases, in which damages may be limited by law, regardless of the importance of the civil rights 18 at issue.” Id. “For this reason, the district court must consider the excellence of the overall 19 result, not merely the amount of damages won.” Id. “[R]esults may not be measured solely 20 in terms of damages . . . [thus,] a court should consider not only the monetary results but also 21 the significant nonmonetary results [the plaintiff] achieved for himself and other members 22 of society.” Id. (quoting Morales v. City of San Rafael, 96 F.3d 359, 365 (9th Cir. 1996) 23 (second alteration in original). 24 Here, comparing the damages awarded to Plaintiff to the damages sought by Plaintiff 25 is of little guidance. In his complaint, Plaintiff sought damages “in an amount to be 26 determined a trial.” (Doc. #1.) Therefore, considering the $50,000 in damages Plaintiff 27 obtained in the settlement agreement as compared to the non-specific amount plead in the 28 13 1 complaint fails to indicate the level of Plaintiff’s success. Defendant asks the court to 2 measure Plaintiff’s success relative to a prior settlement demand of $186,000. (Defs.’ Opp’n 3 4.) In McCown, the court considered a proposed settlement agreement because “both parties 4 sought to introduce evidence of settlement discussions and negotiations, and the district 5 court considered that evidence when making its ruling on attorney’s fees.” McCown, 565 6 F.3d at 1104-05 n. 4 (emphasis added). However, the court noted that it “generally refrain[s] 7 from referencing proposed settlement agreements in light of Federal Rule of Evidence 408, 8 which seeks to protect the confidentiality of settlement negotiations. Id. In this case, 9 Defendants seek to introduce a proposed settlement agreement, but Plaintiff objects. In such 10 a situation, the court declines to compare Plaintiff’s settlement amount to a proposed 11 settlement based on Federal Rule of Evidence 408. 12 Although some might consider a $50,000 settlement a small amount, in the court’s 13 experience with cases of this type with the attendant problems associated with the Plaintiff’s 14 criminal history the $50,000 settlement in this case was an excellent result. 15 In considering the excellence of Plaintiff’s overall result, the court finds that Plaintiff’s 16 counsel provided a “meaningful public benefit.” Aside from obtaining a $50,000 settlement, 17 in this case, Plaintiff established as a matter of law that Defendant Coss violated his right to 18 be free from unconstitutional arrest. In securing this ruling, Plaintiff established a significant 19 nonmonetary result to members of society – alerting police that probable cause to arrest a 20 person does not exist: (1) based on a violation of a nonexistent TPO or (2) based on the mere 21 utterance of the words “I’ll deal with you.” The results Plaintiff obtained in this case serve the 22 public interest by vindicating the constitutional right to be free from unconstitutional arrest, 23 which sends a message to the City of Reno and its police department about the need to 24 undertake proper investigation before placing a person under arrest. The court’s ruling in 25 Plaintiff’s favor puts police officers on notice of the consequences for constitutional 26 violations. See Guy v. City of San Diego, 2010 U.S. App. LEXIS 12405, at *17-23 (9th Cir. 27 June 17, 2010) (concluding that even in the absence of a damages award beyond nominal 28 14 1 damages, a plaintiff achieved “tangible results” by establishing that officers used excessive 2 force, which logically would prompt the police department to take a closer look at the level 3 of force used by its officers). Because Plaintiff obtained excellent results and conferred a 4 meaningful public benefit, the court declines to reduce Plaintiff’s attorneys’ fees on this basis. 5 D. Plaintiff seeks $3,218.86 in costs. (Pl.’s Mot. 30.) Defendant does not object to 6 7 COSTS Plaintiff’s request. 8 Fed. R. Civ. P. 54(d)(1) provides that costs “should be allowed to the prevailing party.” 9 Courts have interpreted this rule to create a presumption in favor of the award of costs in 10 favor of the prevailing party, but reserving for the district judge the discretion to deny costs 11 in appropriate circumstances. See Miles v. California, 320 F.3d 986, 988 (9th Cir. 2003); 12 see Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). The losing party has the 13 burden to “establish a reason to deny costs.” Dawson v. City of Seattle, 435 F.3d 1054, 1070 14 (9th Cir. 2006). Based on its review of the entire fee application and costs, the court finds that all costs 15 16 were reasonably incurred. Thus, Plaintiff is entitled to $3,218.86 in costs. 17 E. 18 19 20 TOTAL LODESTAR CALCULATION In sum, the court finds that the total lodestar for Plaintiff’s attorneys’ fees is the following: ATTORNEY 21 Terri Keyser-Cooper (attorney rate) 22 Terri Keyser-Cooper (paralegal rate) 23 Diane Vaillancourt HOURS RATE 473.83 $350 $165,840.50 8.8 $90 $792.00 269.45 $350 $94,307.50 24 25 26 Total Lodestar $260,940.00 Total Costs $3,218.86 Total Award $264,158.86 27 28 15 LODESTAR 1 In reaching the total number of compensable hours for Ms. Keyser-Cooper the court reduced 2 the initial hours requested (614.80) by the following: 3 • 8.8 hours for paralegal work; 4 • 15.17 hours for deposition preparation; 5 • 117 hours for appellate briefing and oral argument. 6 In reaching the total number of compensable hours for Ms. Vaillancourt the court reduced 7 the initial hours requested (325.42) by the following: 8 • 15.16 hours for deposition preparation; 9 • 45.81 hours for appellate briefing and oral argument. 10 Plaintiff requested five hours for preparation of his reply (Pl.’s Mot. 30 n. 9.), which the court 11 concludes is a reasonable request. Thus, the court adds five hours to Ms. Vaillancourt’s total 12 hours. In total, the court awards Plaintiff $264,158.86 in attorneys’ fees and costs. The court 13 orders Defendants to pay this amount to Plaintiff by no later than thirty (30) days from the 14 date of this order. IV. CONCLUSION 15 16 17 18 IT IS HEREBY ORDERED that Plaintiffs’ Motion for Attorneys’ Fees and Costs (Doc. #78) is GRANTED in part and DENIED in part as detailed above. DATED: June 28, 2010. 19 20 21 _________________________________ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 16
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