Grisham et al v. Municipality of Anchorage et al, No. 3:2018cv00001 - Document 51 (D. Alaska 2019)
Court Description: ORDER granting in part and denying in part 44 Motion for Attorneys' Fees. Plaintiffs are awarded a total of $43,880.68, consisting of $43,300.00 in attorneys fees and $580.68 in costs. The court will leave it up to Plaintiffs and their attorneys on how to divide the award between co-counsel based on the findings herein. (GMM, CHAMBERS STAFF)
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Grisham et al v. Municipality of Anchorage et al Doc. 51 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ALASKA 6 7 8 David Grisham and Tina Watson, 9 Plaintiffs, 10 vs. 11 12 13 14 15 Municipality of Anchorage; John Rodda, in his official capacity as Anchorage Parks and Recreation Director; and John Casselman, individually, and in his official capacity as police officer for the Whittier Police Department, 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 3:18-CV-00001 JWS ORDER AND OPINION [Re: Motion at docket 44] 18 19 I. MOTION PRESENTED 20 At docket 44, with a memorandum in support at docket 45, Plaintiffs David 21 Grisham (“Grisham”) and Tina Watson (“Watson”; collectively “Plaintiffs”) filed a motion 22 for attorneys’ fees and expenses under 42 U.S.C. § 1988. They are requesting a total 23 of $79,143.18: $56,920 for time spent by attorney Nathan Kellum; $7,700 for time spent 24 by attorney Anthony Mangini; $13,942.50 for time spent by attorney Anne Helzer; and 25 $580.68 in expenses. The expenses are not taxable, but defendants have not opposed 26 an award for the expenses. The court will award $580.68 in expenses. Defendant 27 Municipality of Anchorage (the “Municipality”) opposes the amount of the requested fees 28 -1- Dockets.Justia.com 1 at docket 46. Plaintiffs reply at docket 48. Oral argument was not requested and would 2 not be of assistance to the court. 3 4 5 III. STANDARD OF REVIEW A party who prevails on a § 1983 claim is generally entitled to reasonable 6 attorneys’ fees and expenses.1 “The district court has discretion in determining what 7 fees are reasonable” but must clearly explain its reasoning for setting the fee amount.2 8 When determining what constitutes a reasonable fee award, the courts uses the 9 lodestar method. The method consists of two parts.3 First, the court must calculate the 10 lodestar figure, which is the number of hours reasonably expended on the litigation 11 multiplied by a reasonable hourly rate.4 A reasonable hourly rate is the prevailing rate in 12 the relevant community.5 The number of hours reasonably expended on litigation is 13 generally determined by the winning lawyer’s professional judgment as to how much 14 time was necessary for the case.6 However, when calculating the lodestar figure the 15 court should not include “‘excessive, redundant, or otherwise unnecessary’” hours.7 “A 16 district court can . . . impose up to a 10 percent reduction without explanation. . . . 17 However, ‘where the disparity is larger, a more specific articulation of the court’s 18 reasoning is expected.’”8 The resulting figure should “approximate[ ] the fee that the 19 20 1 21 2 22 3 23 4 24 5 25 6 26 27 28 42 U.S.C. § 1988(b); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). Chaudhry v. City of L.A., 751 F.3d 1096, 1110 (9th Cir. 2014). Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) Id. Id. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). 7 Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (quoting Hensley, 461 U.S. at 433-34). 8 Chaudhry, 751 F.3d at 1111 (quoting Moreno, 534 F.3d at 1111). -2- 1 prevailing attorney would have received if he or she had been representing a paying 2 client who was billed by the hour in a comparable case.”9 3 Second, the court determines whether to enhance or reduce the lodestar figure 4 based on the Kerr factors10 that are not already subsumed in the initial lodestar figure.11 5 This further adjustment is generally disfavored.12 6 The party requesting an award of fees bears the burden of “producing evidence 7 that their requested fees are in line with those prevailing in the community for similar 8 services by lawyers of reasonably comparable skill, experience and reputation.”13 If the 9 applicant meets this burden, then the opposing party must submit evidence disputing 10 the accuracy and reasonableness of the fee applicant’s claims.14 “If opposing counsel 11 cannot come up with specific reasons for reducing the fee request that the district court 12 finds persuasive, [the court][ should normally grant the award in full, or with no more 13 than a haircut.”15 14 15 16 17 18 19 20 21 22 23 24 25 9 Kelly, 822 F.3d at 1099 (internal quotations omitted). 10 The Kerr factors are as follows: (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. Morales v. City of San Rafael, 96 F.3d 359,363-64 n.8 (9th Cir. 1996). 11 Many of the Kerr factors are “presumably taken into account in either the reasonable hours component or the reasonable rate component of the lodestar calculation.” Id. at 364 n.9; see also Kelly, 822 F.3d at 1099. 12 Morales, 96 F.3d at 364 n.9 (additional adjustment of the lodestar figure “on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable number of hours or reasonable hourly rate at the first step, . . . is a disfavored procedure.” (emphasis added)). 26 13 27 14 28 15 Chaudry, 751 F.3d at 1110 (internal quotations omitted). Id. at 1110-11. Moreno, 534 F.3d at 1116. -3- 1 IV. DISCUSSION 2 The Municipality agrees that Plaintiffs were the prevailing party and that an 3 award of attorneys’ fees and expenses is appropriate here. The Municipality also 4 agrees with the requested hourly rates, which are supported with declarations attesting 5 to the reasonableness of these rates for this community and for this type of work. The 6 Municipality’s opposition to the requested fee award is based on its contention that the 7 224 hours Plaintiffs’ attorneys spent on the matter is unreasonable, noting that this case 8 did not proceed to summary judgment or trial. 9 A. Burden to show reasonableness 10 Plaintiffs argue that their request for an award of 224 hours of attorneys’ time is 11 reasonable in this case, citing the declaration of Walter M. Weber that was attached to 12 their request for fees.16 Mr. Weber is an attorney based in Virginia who litigates First 13 Amendment cases throughout the country. In paragraph 15 of his declaration, he 14 asserts that the time attorney Kellum and attorney Mangini spent on the matter is 15 reasonable given the facts and course of this case. Plaintiffs argue that the Municipality 16 failed to present a competing declaration or other evidence that would call into question 17 the hours spent on the matter, and therefore this court must grant the requested fees 18 without any significant reductions. 19 The court disagrees with Plaintiffs’ assessment. While the Municipality did not 20 submit a declaration to support its contention that the amount of hours Plaintiffs’ 21 attorneys spent on this case was excessive, it nonetheless sufficiently communicated to 22 the court specific reasons why it believes the request should be reduced and cited 23 numerous cases involving similar religious expression issues and litigation history where 24 attorney Kellum’s requested fees have been reduced. The cases discuss, at least in 25 part, the reasonableness of hours attorney Kellum claimed. This is sufficient support for 26 the Municipality’s position. Moreover, while declarations are useful and persuasive 27 28 16 Doc. 44-6. -4- 1 when the court is assessing what the prevailing attorney rates are for a community, they 2 are less so in the context of assessing the reasonableness of hours spent on a matter. 3 Indeed, Mr. Weber’s perfunctory statement that the time expended here is normal is not 4 persuasive enough to cause the court to discount the Municipality’s arguments. A 5 competing declaration stating the opposite would have been of little value. 6 To the extent the Municipality asks the court to wholesale slash attorney Kellum’s 7 requested fees based on the overall percentages other courts have reduced his fees, 8 the court declines to do so. As noted by the Plaintiffs, some of the reductions in those 9 cases were due to additional factors, such as hourly rates, overall success, and 10 unrelated appeal work, not just excessive hours. The court must instead look at the 11 specific time entries in this case and decide what reductions are warranted. 12 B. 13 Reasonableness of hours expended The Municipality argues that Plaintiffs’ requested fees are excessive in a few 14 areas. It believes the attorneys spent too much time on the complaint and the motion 15 for a preliminary injunction and too much time preparing for the Rule 26(f) conference. 16 It also argues that Plaintiffs’ attorneys did not efficiently use local counsel and spent too 17 much time on consultation. 18 1. Complaint and Motion for a Preliminary Injunction 19 The parties present different numbers as to how much time Plaintiffs’ attorneys 20 spent on pleadings and the preliminary injunction motion. Indeed, given the nature of 21 billing statements, it is understandable that tasks and time entries could be categorized 22 multiple ways. The court has done its own review of the billing statement and will rely 23 on its own assessment of the numbers. Time entries related to the complaint total 24 about 29.5 hours, with most of those hours billed by attorney Kellum. Time entries 25 related to the preliminary injunction motion total 37 hours. This number only includes 26 time spent researching and writing the motion itself. Again, attorney Kellum was the 27 primary attorney on this task. In addition, Plaintiffs’ attorneys spent about 15 hours 28 preparing exhibits for the motion, 11 of which were spent on drafting Grisham’s and -5- 1 Watson’s affidavits. It appears attorney Mangini did much of the work on exhibits and 2 affidavits. The hours attributed to the complaint and preliminary injunction motion 3 exclude case development activities—reviewing files, making calls, looking at maps and 4 photos, watching video—that attorney Kellum did not categorize as part of the complaint 5 or the preliminary injunction process. Pre-complaint case development by attorneys 6 Kellum and Helzer total 39 hours. Again, this is time apart from the drafting of the 7 complaint and the preliminary injunction. In total, the attorneys spent around 120.5 8 hours preparing the initial filings in this case. The court finds this amount of time 9 excessive for a variety of reasons. 10 Kellum is a seasoned and experienced First Amendment attorney. The parties 11 have cited many cases where Kellum has been the attorney for plaintiffs bringing a 12 lawsuit related to his or her attempted distribution of religious materials in public places. 13 Kellum’s complaint outline and causes of action for these types of cases are well 14 defined.17 While the court agrees with Plaintiffs’ argument that there are legal and 15 factual distinctions that make each case unique, the time entries here show excessive 16 time spent on drafting multiple documents with the same recitation of facts. The facts of 17 the case make up the bulk of the complaint (18 of the 22 pages). The facts are then 18 repeated in the two affidavits. They are repeated again in the preliminary injunction 19 motion and constitute about a third of that document. After spending around 40 hours 20 developing the case and spending around 30 hours drafting the fact-based complaint, it 21 is duplicative to claim another 11 hours drafting affidavits with the same recitation of 22 facts18 and duplicative to claim more time preparing the facts for the preliminary 23 injunction motion. Moreover, the court notes that this is not the first time Kellum has 24 worked with Grisham. He also represented Grisham in a Northern District of Texas 25 case where Grisham sued the City of Fort Worth for violating his First Amendment rights 26 27 17 28 18 See docs. 46-3 and 46-2. The time entries show that the affidavits were prepared after the complaint. -6- 1 by preventing him from handing out religious literature at a public park during a public 2 event.19 Therefore, time spent gathering information about Grisham and his religious 3 beliefs to include in the pleadings should have been minimal. Attorney Mangini’s time 4 spent on exhibits also appears excessive given that they are not attorney-created 5 exhibits. 6 Rather than parse through each specific entry and determine at what point in 7 time the attorneys’ efforts became excessive, the court will make a wholesale reduction. 8 Generously assuming that the 39 hours of pre-case development was necessary to 9 gather facts and research the legal particulars of this case, the court will make the 10 reduction to the remaining 81.5 hours spent on the initial filings in this case. The court 11 believes that preparation of the complaint and the preliminary injunction motion after 12 thorough case development should not have taken more than 25 hours total, requiring a 13 reduction of 56.5 hours from the 81.5 hours claimed on the billing statements. 14 Therefore, using attorney Kellum’s hourly rate, the court will subtract $22,600 from 15 Plaintiffs’ fee request. 16 2. Staffing 17 The court also notes that the use of local counsel was excessive. There are 18 numerous entries for correspondence between attorneys Kellum and Helzer about 19 every step of the litigation up through April of 2018 when Helzer's involvement tapered 20 off. She entered 46 hours of time spent on the case and discounted 3.1 hours, leaving 21 a total of 42.9 hours claimed for her time. Not including the hours already discounted by 22 Helzer and not including the 15.25 hours she spent on and before October 31, 2018, 23 when Kellum became counsel, Helzer spent about 27 hours consulting and 24 corresponding with Kellum and reviewing Kellum's work product. Kellum spent 25 approximately 13 hours corresponding and consulting with Helzer about matters not 26 27 28 19 Grisham v. City of Fort Worth, No. 4:15-cv-324-A, 2016 WL 8606770 (N.D. Tex. Dec. 16, 2016). -7- 1 related to tasks already accounted for in this order. The court believes that given 2 Kellum’s solid understanding of the facts of this case—demonstrated through his time 3 entries devoted to case review and development—and his First Amendment expertise 4 for which he was hired, there was no significant need by Kellum to have numerous 5 consultations with Helzer, particularly on the substance of his memorandums and 6 filings. In other words, the court concludes that a prevailing attorney would have written 7 off a portion of these consultations for a paying client. The court will reduce Helzer's 8 time for these consultations and tasks by 17 hours, which amounts to a $5,525 9 reduction. It will reduce Kellum's time from 13 hours to 5 hours for a reduction of 10 $3,200. 11 Additionally, the court identified several instances where both attorney Kellum 12 and attorney Helzer handled daily litigation management. Kellum billed about 5 hours 13 on small miscellaneous tasks related to local rules, phone calls to court staff, and 14 reviewing routine orders, which were also reviewed by Helzer. The court finds this time 15 duplicative. They are also unnecessary tasks for an attorney charging $400 per hour. 16 The court will therefore take $2,000 off the requested total to account for these 5 hours. 17 3. Rule 26(f) Conference 18 The attorneys spent about 11 hours preparing for and conducting the Rule 26(f) 19 conference. Plaintiffs argue that these charges are reasonable because preparing for a 20 conference constitutes “‘careful compliance with the attorneys’ responsibilities.’”20 They 21 note that the time spent preparing for the conference included coordinating multiple 22 schedules and preparing for possible negotiations about a settlement. Given the 23 purpose and nature of such a conference and the fact that the court provides a standard 24 form for the parties to complete in conjunction with that conference, 11 hours appears to 25 be a bloated amount of time to charge for such tasks. The court believes at least some 26 27 28 20 Doc. 48 at p. 7 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir. 2001). -8- 1 reduction is warranted but not a large one, giving some weight to the fact that attorney 2 Kellum was also preparing for potential negotiations and the Municipality did not provide 3 rebuttal evidence to show that there were no talks of settlement at the conference. The 4 court will cut 4 hours from attorney Mangini’s time, since he was the one claiming the 5 majority of time on the matter. That results in a reduction of $800. 6 4. Media-related entries 7 The court noticed that attorney Helzer billed time for media-related 8 communications and tasks. These tasks are not necessary to the litigation and are “the 9 kinds of activities that attorneys generally do at their own expense.”21 It is difficult for 10 the court to assess exactly how much time she spent on such activities because her 11 time entries are blocked by day rather than discrete tasks. The court estimates that 3.5 12 hours should be reduced for a total reduction of $1,137.50 from the requested fee 13 amount. 14 C. 15 Final Lodestar Figure Plaintiffs request a total of $79,143.18 in attorneys’ fees and costs. Adjusting for 16 the excessive and unnecessary time spent on the case, the court concludes that the 17 final lodestar figure amounts to $43,300.00. A reduction of this nature is in line with 18 other courts considering the reasonableness of fee requests by attorney Kellum.22 For 19 example, in Henderson v. Crimmins23, the court reduced Kellum's time spent on the 20 complaint and motion for preliminary injunction by 45 hours and found that the 21 reasonable amount of time spent on the case in total was around 70 hours. The court 22 also reduced Kellum's fees based on other factors, including the fact that courts 23 24 21 25 22 26 27 28 Gates v. Gomez, 60 F.3d 525, 535 (9th Cir. 1995). See Henderson v. Crimmins, 147 F. Supp. 3d 780, 787 (N.D. Iowa 2015) (listing cases where Kellum’s fee requests have been “slashed for being excessive”); Deferio v. City of Syracuse, No. 5:16-cv-361, 2018 WL 3069200, at *7 (N.D.N.Y. June 21, 2018) (listing cases where Kellum’s fees have been reduced). 23 147 F. Supp. 3d 780 (N.D. Iowa 2015). -9- 1 continue to send him the message to “[s]top submitting such wildly excessive requests 2 for attorney fees."24 In Grisham v. City of Fort Worth25, the court found that spending 3 66.5 hours on preparation of the complaint and a motion for preliminary injunction was 4 excessive and reduced the number of hours to 30.26 The court in Corral v. Montgomery 5 County27 also reduced the hours Kellum spent on the complaint and preliminary 6 injunction from 163.4 hours to 100 hours. In Gros v. New Orleans28 the court reduced 7 Kellum's hours spent on co-counsel communications by 75% and then reduced the 8 remaining number of hours by 50% describing the claimed hours as "grossly 9 excessive."29 10 11 D. Adjustments based on remaining Kerr factors The adjustments made to the lodestar amount subsume most of the Kerr factors. 12 That is, in determining what was a reasonable rate to charge and a reasonable amount 13 of time to spend on the case, the court already considered the time and labor needed, 14 the novelty of the issues, skills and experience of the attorneys, the fees and amounts 15 involved, and awards in other cases. The remaining Kerr factors, such as preclusion of 16 other employment, time limitations imposed, or desirability of the case, do not support 17 any further adjustments to the fee award. 18 19 20 21 24 22 25 23 26 24 25 Id. at 791. No. 4:15-cv-324-A, 2016 WL 8606770 (N.D. Tex. Dec. 16, 2016). Id. at *4 (“If the City of Fort Worth is willing to accept 30 hours as an appropriate number for preparation of the initial pleadings, the court likewise is accepting that number, even though the court continues to believe that anything more than 20 hours for that work would be excessive.”). 26 27 27 28 28 29 91 F. Supp. 3d 702 (D. Md. 2015). Nos. 12-2322, 12-2334, 12-2374, 2014 WL 2506464 (E.D. La. June 3, 2015). Id. at *11-12. -10- 1 V. CONCLUSION 2 Based on the foregoing, Plaintiffs’ motion for attorneys’ fees and costs is 3 GRANTED IN PART. Plaintiffs are awarded a total of $43,880.68, consisting of 4 $43,300.00 in attorneys’ fees and $580.68 in costs. The court will leave it up to 5 Plaintiffs and their attorneys on how to divide the award between co-counsel based on 6 the findings herein. 7 8 DATED this 20th day of February 2019. 9 10 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11-
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