Plaintiff Frevach Land Company brings this 42 U.S.C. § 1983 action against Multnomah County's Department of Environmental Services, Land Use Planning Division ("the County"), the County's Planning Director Kathy Busse, and the County's Land Use Code Enforcement Planner Lisa Estrin. Although the parties have settled the merits of the dispute, they reserved the issue of attorney's fees and costs for the court. As a result, plaintiff initially moved for an award of attorney's fees in the amount of $263,999, and an award of costs in the amount of $34,781.87. In response, defendants maintained that a reasonable fee award is $68,776 and a reasonable award of costs is $215.

In an Interim Order issued June 21, 2001, I ruled that certain claimed hours and costs would be disallowed. I also required plaintiff to submit a revised petition, omitting all of the disallowed hours and costs. At that time, I expressed no reasoning to support my conclusions, but indicated that the reasoning would follow in a full Opinion which would also rule on all outstanding fee petition issues. This Opinion and Order contains that reasoning and fully resolves the attorney fee petition.

In response to the Interim Order, plaintiff submits an Amended Motion for Attorney's Fees seeking $159,966.50 in attorney's fees and $6,646.62 in costs. Plaintiff also seeks reconsideration of the conclusions in the Interim Order. I have now reconsidered all prior rulings. For the reasons explained below, I grant plaintiff's motion for attorney's fees and amended motion for attorney's fees in part and deny the motions in part.

I. General Fee Award Standards

In determining a reasonable attorney's fee under section 1988, the district court first calculates the lodestar by multiplying the number of hours it finds the prevailing party reasonably expended on the litigation by a reasonable hourly rate. McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). In calculating the lodestar amount, the district court should take into account any relevant factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), that it finds to be relevant. McGrath, 67 F.3d at 252. There is a strong presumption that the lodestar figure is a reasonable fee. Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

The 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) time limitations imposed by the client or the circumstances; (7) the amount involved and the results obtained; (8) the experience, reputation, and ability of the attorneys; (9) the "undesirability" of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 n. 2 (9th Cir. 2000). Additionally, "[t]he contingency nature of a fee cannot be considered as a factor bearing on the amount of attorney's fees." Id.

The presumptively reasonable lodestar figure may be adjusted downward or upward only on the basis of those factors not already subsumed in the lodestar calculation. Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996), amended on other grounds, 108 F.3d 981 (9th Cir. 1997). "The subsumed factors are: the novelty and complexity of the issues, the special skill and experience of counsel, the quality of the representation, the results obtained and the superior performance of counsel." D'Emanuele v. Montgomery Ward Co., 904 F.2d 1379, 1383 (9th Cir. 1990) (citations omitted); see also Van Gerwen, 214 F.3d at 1045 n. 2 (noting that the novelty or complexity of the issues, the quality of the representation, and the results obtained are ordinarily subsumed in the lodestar).

A district court possesses "considerable discretion" in determining the reasonableness of a fee award. See Webb v. Ada County, 195 F.3d 524, 526 (9th Cir. 1999). Even absent specific objections by the opposing party, the court has an independent duty to scrutinize a fee request to determine its reasonableness. Gates, 987 F.2d at 1401; see also Poole v. Textron, Inc., 192 F.R.D. 494, 508 (D.Md. 2000) (because the award must be reasonable, it is incumbent on the district court to subject the request to an independent review to "insure that the time expended . . . was not excessive to the task and [to consider] the hourly rate charged in light of fees charged in the legal community for services of like kind and quality.").

I. Reasonable Number of Hours

Plaintiff's original attorney's fee petition contains 109 pages of billing entries, plus another five and one-half pages of time entries in a supplemental affidavit seeking fees incurred during the implementation of the settlement agreement and in preparation of the fee petition. Defendants raise several objections and I have given plaintiff's submissions an independent review.

It is the fee claimant's burden to demonstrate that the number of hours spent was "reasonably necessary" to the litigation and that counsel made "a good faith effort to exclude from [the] fee request hours that are excessive, redundant, or otherwise unnecessary[.]" Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see also McGrath, 67 F.3d 248, 252 (9th Cir. 1995) (lodestar includes the number of hours the prevailing party reasonably expended on the litigation); Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) ("[p]laintiffs bear the burden of showing the time spent and that it was reasonably necessary to the successful prosecution of their claims); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986) (district court determines numbers of hours reasonably expended in furtherance of the successful aspects of a litigation). Reasonable hours include only those for successful or closely related claims. Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994).

It does not appear that plaintiff's counsel did this. See, for example, discussion of secretarial tasks at pp. 54-77; unidentified tasks at pp. 80-82; and land use tasks at pp. 78-79.

Additionally, "[i]t is not sufficient for prevailing counsel to opine that all of the time claimed was usefully spent, and the district court should not uncritically accept counsel's representations concerning the time expended." Jordan v. Multnomah County, 815 F.2d 1258, 1263 n. 8 (9th Cir. 1987). Before addressing the specific objections, I note that given the general lack of specificity in the billing statements such as block billing, failure to itemize, failure to identify the employee, and similar problems, it was extremely difficult to perform the appropriate and required independent analysis required by the Ninth Circuit. I have given plaintiff the benefit of the doubt where it appeared that some appropriate task was performed. Nonetheless, given the variety of problems, it was very difficult to discern the precise number of tasks performed and the time spent on each task. As a result, despite the most thorough attention being paid to each entry and each objection, some inconsistencies on what is allowed and what is disallowed may result. In anticipation of such criticism, I say only that what is written here is the result of the most complete review possible given the information provided.

A. O'Donnell Ramis Hours Prior to Filing Complaint

This action originated when plaintiff's lead counsel, Kelly Clark, was employed at O'Donnell Ramis Crew Corrigan Bachrach (ORCCB). The Complaint was filed August 12, 1999, in state court and removed to this court in September 1999. Defendants argue that the time sheets submitted for hours spent by ORCCB reveal work performed before the filing of the lawsuit, from November 3, 1997, to August 12, 1999, which was related to ongoing land use matters involving plaintiff and other governmental entities and thus are not hours reasonably related to the prosecution of this suit.

Plaintiff argues that the time is compensable because there was overlap between some of the issues which arose during the pre-Complaint period, and in the actual litigation. Plaintiff argues that the time it spent researching certain issues in the pre-litigation phase saved hours of time after the case was filed.

The Ninth Circuit has recognized that pre-litigation fees can be compensable. See, e.g., GG Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893 (9th Cir. 1998), rev'd on other grounds, 526 U.S. 1061 (1999). There, the court affirmed the district court's fee award for time spent in a prior lawsuit. Id. at 907-08. The court noted that its prior cases showed that pursuit of administrative proceedings before filing a civil suit could be awarded if it was a condition precedent to the plaintiff's entry to federal court or a part of a continuing federal court action. Id. at 908. The court cited other circuit court decisions addressing similar fee issues in non-administrative contexts. Id. The court concluded that the time spent by the plaintiff in the prior lawsuit was compensable because the plaintiff made a showing that the work done in the prior lawsuit was directly related to the present action. Id.

The court noted that the plaintiff's counsel stated that the legal research and analysis performed in the prior suit were necessary for the instant action and saved him from expending more time on the instant lawsuit. Id.

I agree with plaintiff that any time spent on Stop Work Order #2 (SWO2) and thereafter, appears related to the issues addressed in the present litigation and should be compensable here. Time spent prior to the issuance of SWO2 is not compensable because there is an insufficient connection between the pre-litigation matters before that date and the issues addressed in the litigation. Thus, I disallow all ORCCB hours before March 12, 1998.

B. Hours for Which Person Performing Work Unidentified

After December 31, 1998, Clark and one of the partners at ORCCB split from ORCCB and formed their own firm, O'Donnell and Clark. The remaining attorneys at ORCCB became Ramis Crew Corrigan Bachrach (RCCB). Several of the billing statements from both ORCCB and RCCB fail to identify the partner or employee who actually performed the task. For example, on March 2, 1999, someone at RCCB spent four hours researching various issues related to a grading and erosion control permit. Pltf's Exh. A at p. 91. The person performing the work is not identified with the entry. Id. While several persons who performed work during that billing cycle are listed at the bottom of the billing statement, only the cumulative time for that person's work during the billing cycle is listed and it is not helpful in identifying who performed which tasks. Because, as explained below, I reject many of the hourly rates requested by plaintiff, I must be able to determine who performed what task so that I may determine the number of hours for that person at what I find to be a reasonable hourly rate. Further, how long a task reasonably takes sometimes depends on the experience of the attorney performing it. What an experienced attorney can accomplish in an hour of research may take a less experienced attorney four hours to accomplish. Thus, the following hours claimed are disallowed because they fail to identify who performed the task:

Previously disallowed hours are not listed here.

FIRM DATE HOURS ORCCB 3/12/98 0.8 ORCCB 3/17/98 4.7 ORCCB 3/18/98 1.4 ORCCB 3/19/98 3.7 ORCCB 3/24/98 2.7 ORCCB 3/30/98 2.4 ORCCB 3/31/98 0.5 ORCCB 4/2/98 0.4 ORCCB 4/7/98 0.4 ORCCB 4/13/98 0.2 ORCCB 4/14/98 3.8 ORCCB 4/15/98 0.8 ORCCB 4/21/98 0.8 ORCCB 4/22/98 0.8 ORCCB 4/23/98 2.9 ORCCB 4/24/98 0.5 ORCCB 4/29/98 1.9 ORCCB 4/30/98 1.1 ORCCB 5/3/98 0.4 ORCCB 5/4/98 7.2 ORCCB 5/5/98 6.9 ORCCB 5/6/98 4.2 ORCCB 5/7/98 1.2 ORCCB 5/8/98 3.4 ORCCB 5/11/98 3.0 ORCCB 5/12/98 0.6 ORCCB 5/13/98 1.8 ORCCB 5/18/98 0.9 ORCCB 6/2/98 0.3 ORCCB 6/5/98 1.3 ORCCB 6/12/98 1.9 ORCCB 6/16/98 0.2 ORCCB 6/17/98 0.8 ORCCB 6/18/98 0.3 ORCCB 6/21/98 0.8 ORCCB 6/24/98 1.0 ORCCB 7/22/98 0.8 ORCCB 8/13/98 0.3 ORCCB 8/24/98 0.7 ORCCB 8/26/98 1.1 ORCCB 8/27/98 2.1 ORCCB 8/28/98 0.9 ORCCB 9/17/98 2.2 ORCCB 9/24/98 1.1 ORCCB 9/25/98 0.7 ORCCB 10/30/98 1.1 ORCCB 12/3/98 0.2 ORCCB 12/4/98 0.5 ORCCB 12/8/98 9.2 ORCCB 12/23/98 6.7 ORCCB 12/25/98 6.3 ORCCB 12/27/98 3.7 ORCCB 12/29/98 8.8 ORCCB 12/30/98 5.3 RCCB 2/5/99 2.2 RCCB 2/24/99 0.2 RCCB 3/2/99 4.0 RCCB 3/10/99 1.9 RCCB 3/11/99 1.8 RCCB 3/12/99 0.3 RCCB 3/18/99 1.1 RCCB 3/22/99 0.7 RCCB 4/1/99 0.5 RCCB 5/10/99 0.2 RCCB 5/12/99 1.2 RCCB 5/13/99 0.5 RCCB 5/18/99 2.4 RCCB 5/19/99 1.2 RCCB 5/21/99 3.4 RCCB 5/24/99 0.3 RCCB 6/1/99 0.2 RCCB 6/21/99 1.0 RCCB 6/22/99 0.5 RCCB 6/21/99 5.0 RCCB 7/5/99 4.7 RCCB 7/6/99 8.0

C. RCCB Hours After August 19, 1999

Defendants argue that plaintiff fails to demonstrate why work performed by RCCB after the filing of the Complaint on August 19, 1999, was reasonably necessary or how the attorneys at RCCB provided a unique contribution in addition to the work being performed by Clark and others at O'Donnell and Clark. Defendants contend that all hours related to RCCB after the filing of the Complaint are insufficiently documented, excessive, or duplicative and should be disallowed. I agree with defendants that plaintiff fails to explain why attorneys at RCCB continued to work on the case after Clark, the primary litigation attorney, no longer worked there and filed the Complaint on August 19, 1999. Therefore, I disallow all RCCB hours after August 19, 1999.

D. Hours Spent on the Writ of Review

Attorney's fees were pleaded only for the 1983 claims as that is all that is recoverable under section 1988. Defendants properly note that there is no attorney's fee provision for prevailing on a petition for writ of review. Thus, defendants argue that all time billed for work on the writ of review is not compensable.

Plaintiff argues that it is entitled to fees for all the time spent on the writ of review. Plaintiff notes that the writ was granted and then Stop Work Order #3 (SWO3) was invalidated. Plaintiff argues that it should be compensated for the time spent on the writ of review because the issues between the writ and the section 1983 claims were "interwoven to a remarkable degree." Pltf's Memo. at p. 14. Plaintiff explains:

The same issues decided by the Court relative to the Writ of Review formed the basis of Fred's § 1983 claims. That is, this Court held (in its Summary Judgment Opinion) that the actions of the County were unconstitutional. It were [sic] these issues, decided by the Court in Fred's favor, which were the same issues raised in Fred's fifth claim for relief. The research was similar. The analysis — including the Court's reasoning — was too. The violation of Fred's constitutional rights, which invalidated SWO3 under the writ, should be included in Fred's petition because of this overlap.

Id. at p. 15.

In this action, plaintiff brought five claims as follows: (1) petition for writ of review regarding SWO3. In the petition for the writ, plaintiff raised five separate arguments as to why SWO3 was invalid: (a) the County exceeded its jurisdiction; (b) the County failed to follow the procedure applicable to the matter before it; (c) the County made a finding or order not supported by substantial evidence in the whole record; (d) the County improperly construed the applicable law; and (3) SWO3 violated the due process clause;

(2) declaratory relief claim regarding the permit conditions of the grading and erosion control permit ("the GEC permit"); (3) injunctive relief claim regarding the GEC permit conditions;

(4) intentional interference with contractual relations or prospective business advantage; and

(5) the section 1983 claim which was brought as five separate counts: (a) count one as to stop work order #1 (SWO1); (b) count two as to SWO2; (c) count three was a due process challenge to all of the stop work orders; (d) count four was a takings challenge to all of the stop work orders; and (e) count five raised equal protection and first amendment challenges to all of the stop work orders. As can be seen, one of the counts of the section 1983 claim, the due process challenge, paralleled one of the arguments raised in the petition for writ of review. Otherwise, none the arguments made in support of the petition for writ of review overlapped with the section 1983 claim, the only claim for which fees are allowable.

While plaintiff prevailed on its petition for writ of review, it should not receive fees for time spent on that petition because there is no fee-shifting provision for success on such a claim. Additionally, the issues presented in the writ of review as a whole were not "interwoven to a remarkable degree" with the issues raised in the section 1983 claim. However, because one of the five arguments made in support of the writ of review, the due process claim, related directly to one of the five counts of the section 1983 claim, on which plaintiff did prevail, it is reasonable to award plaintiff some time for the time spent on the petition for writ of review. Thus, one-fifth of the time spent on the writ of review is compensable, but the rest is disallowed.

I calculated the one-fifth allowable hours by first, eliminating all hours which are disallowed for any of the reasons outlined in this Opinion. Next, I reviewed all the remaining entries to determine the total amount of time spent on the writ of review. As explained later in this Opinion, plaintiff's counsel's failure to sufficiently delineate certain tasks makes my review very difficult. As explained there, entries of three hours or more are susceptible to being disallowed as a "block billing" problem. Any entry disallowed because of a block billing problem was not counted as part of the total of hours spent on the petition for writ of review. Nonetheless, even entries of less than three hours had multiple tasks recited in the description but then only one total hour figure given for all of the work performed.

For the purposes of attempting to add the total number of hours spent on the petition for writ of review, I have taken the entries not otherwise disallowed and, if the description shows that the attorney or paralegal spent time on tasks unrelated to the petition for writ of review, I have divided the total number of tasks by the total number of hours to produce a figure representing the time per task. I have allotted time per task to the petition for writ of review. Then, I added all time spent on the writ of review. I next took twenty-percent of that figure to reach the allowable time for the petition for writ of review. This process has resulted in 2.64 hours being awarded for the time spent on the petition for writ of review.

I then compensated plaintiff for the 2.64 hours at Clark's hourly rate. He is the highest paid attorney who performed work on the petition for writ of review and he worked more than 2.64 hours on the petition. I compensate him at the 1999 hourly rate because that is when he performed most of the work on the petition.

E. Hours Spent on the Preliminary Injunction

Defendants argue that time spent on the motion for preliminary injunction is not compensable. Defendants contend that because the preliminary injunction motion was denied in its entirety, plaintiff should not be awarded fees for time spent on the motion, or alternatively, because fees are not allowed for any of the three claims upon which the preliminary injunction was made, fees should be disallowed. I disagree.

Fees generally are not awarded for unsuccessful claims. O'Neal v. City of Seattle, 66 F.3d 1064, 1068 (9th Cir. 1995). However, it may be appropriate to award fees even for time spent on an unsuccessful motion, if the plaintiff is later successful on a claim addressed in the motion.

In O'Neal, the plaintiff prevailed on her claim, but lost on a motion for class certification. The district court awarded fees for time spent on the motion and the defendant objected. The court explained that

[t]he class certification motion was not unrelated to O'Neal's claims. She sought to certify the class to prevent the city from refusing water service again in similar situations. The class was denied for lack of numerosity. The motion itself was not a separate claim, but rather a method of pursuing her ultimately successful claims. We conclude that the district court did not abuse its discretion in awarding attorney fees for the class certification motion.

Id. at 1068 (emphasis added).

Two other Ninth Circuit cases may shed some light on this issue. First, in Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991), the plaintiff won a jury verdict and then was awarded attorney's fees by the district court. The Ninth Circuit affirmed on the merits and then awarded additional fees for the appeal. Id. at 1051. The defendants filed a petition for certiorari. Id. The Supreme Court granted the petition and vacated the Ninth Circuit decision in light of a new intervening Supreme Court case. Id. On remand from the Supreme Court, the Ninth Circuit determined that the intervening case was inapposite and again affirmed the district court. Id. The defendant again filed a petition for writ of certiorari which was denied. Id.

The plaintiff filed for fees for time spent opposing both petitions for certiorari. Id. at 1051-52. The district court denied fees for the opposition to the first petition, reasoning that the plaintiff's opposition was unsuccessful. Id. at 1052. The plaintiff appealed. On appeal, the Ninth Circuit remarked that just as Hensley holds that fees may be awarded for related, but unsuccessful claims based on the theory that the work on such claims contributes to the success of other claims and the ultimate victory in the suit, it was proper to analogize from Hensley's discussion of different claims to the different stages of litigation at issue here. Just as time spent on losing claims can contribute to the success of other claims, time spent on a losing stage of litigation contributes to success because it constitutes a step toward victory. Id. Thus, the court held that "a plaintiff who is unsuccessful at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney's fees even for the unsuccessful stage." Id. at 1053.

Next, in Cabrales, the court cited an earlier case in which the plaintiff lost on summary judgment in the district court, but then prevailed on appeal. Id. at 1052-53 (citing NAACP v. City of Richmond, 743 F.2d 1346, 1349 (9th Cir. 1984)). The NAACP court held that the plaintiff was entitled to attorney's fees not only for the appeal, but for the proceedings in the trial court where it had lost. NAACP, 743 F.2d at 1358-59. Commenting on the NAACP case, the Cabrales court stated:

The rationale is clear: If a plaintiff ultimately wins on a particular claim, she is entitled to all attorney's fees reasonably expended in pursuing that claim — even though she may have suffered some adverse rulings. Here, although the Supreme Court vacated our judgment, the Court's order was simply a temporary setback on the way to a complete victory for plaintiff.

Id. at 1053; see also Air Transport Ass'n of Canada v. Federal Aviation Admin., 156 F.3d 1329, 1335 (D.C. Cir. 1998) (attorney's fees allowed for an unsuccessful motion for stay pending appeal when the work performed on the "likelihood of success" issue later contributed to the ultimate result obtained in the litigation). National Trust for Historic Pres. v. Corps of Engineers, 570 F. Supp. 465, 470 (S.D.Ohio 1983) (allowing fees for time spent on a never-filed motion for preliminary injunction when the time expended was on an ultimately successful claim; noting that the time was not unproductive).

To the extent defendants argue that none of the time spent on the preliminary injunction motion should be allowed because it was unsuccessful, that alone is not a basis for disallowing the fees. Rather, the question is whether the plaintiff ultimately won on a claim at issue in the motion, or, as stated in Cabrales, was the motion a necessary step to the ultimate victory.

Here, the preliminary injunction motion was brought as to three claims. Plaintiff was ultimately successful as to only one — the petition for writ of review. As described above, there is no fee provision for the writ of review claim. And as described above, only one of the five arguments made in support of the petition for writ of review overlapped with the section 1983 claim for which fees are allowed. Thus, while Plaintiff is not barred from seeking fees for the preliminary injunction motion simply because it was unsuccessful on that motion, its recovery of time spent on the motion should be limited because only a portion of its ultimate victory was on a claim on which fees are allowed.

Plaintiff argues that time spent on the preliminary injunction motion regarding its second and third claims for relief (the claims for declaratory and injunctive relief related to the GEC permit conditions) is compensable because, like parts of the section 1983 claim, they involved constitutional issues as to the seasonal restriction and the dredged materials deposit (DMD) site restriction, as well as the issuance of stop work orders. Plaintiff represents that all three claims at issue in the preliminary injunction motion alleged violations of substantive and procedural due process and unconstitutional regulatory takings.

While the challenges to the seasonal and DMD restrictions in the GEC permit were based on some of the same legal theories as raised in the section 1983 claims (equal protection, substantive and procedural due process, and takings), the focus of those arguments was on the GEC permit, not on any of the stop work orders. No challenges to the GEC permit were made in the section 1983 claim and no challenges to the stop work orders were made in claims two and three concerning the GEC permit.

"Claims are related where they involve a common core of facts or are based on related legal theories." O'Neal, 66 F.3d at 1069 (internal quotation omitted). "The test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury upon which the relief granted is premised." Id. (internal quotation omitted).

Here, while the second and third claims may have raised some of the same legal theories as seen in the section 1983 claims, the relief sought on the second and third claims was intended to remedy two specific conditions of the GEC permit, not the stop work orders. Even if plaintiff had prevailed on the challenges to the GEC permit, that decision would not have affected the section 1983 claim challenging SWO3 because SWO3 was not based on violations of the challenged GEC permit conditions. Thus, I conclude that the second and third claims for relief were unrelated to the section 1983 claim on which plaintiff prevailed and on which fees are allowed.

In sum, although plaintiff did not prevail on its motion for preliminary injunction, that alone is an insufficient basis upon which to deny fees. Plaintiff may recover fees for time spent on unsuccessful motions if it later prevailed on a particular claim. Here, the only "claim" at issue in the preliminary injunction motion on which plaintiff later prevailed was the petition for writ of review. Time spent on an unsuccessful claim is not compensable unless the claim is related to a successful claim. Because the second and third claims for relief are not related to the section 1983 claim on which plaintiff prevailed, plaintiff may recover for time spent on the preliminary injunction motion only to the extent that the time was spent on the petition for writ of review.

Although fees are not allowed for the petition for writ of review itself, it is reasonable, as stated above, to award plaintiff for a percentage of the time spent on the writ of review given that the due process argument raised there paralleled the due process argument made in the successful section 1983 claim. Accordingly, for the reasons articulated above in relation to the writ of review "claim," I apply the same percentage of recoverable fees here as in regard to the time spent on the petition for writ of review. That is, plaintiff may recover one-fifth of the hours expended on the preliminary injunction.

In calculating the total allowable hours, I followed the same procedure here as I did for the petition for writ of review. Additionally, I award the total allowable 22.18 hours spent on the motion for preliminary injunction, at Clark's hourly rate because he was the highest paid attorney to have performed work on the motion, and he worked more than 22.18 hours on the motion. I compensate him at his 2000 hourly rate because that is when he performed the bulk of his work on the motion.

F. Block Billing

Plaintiff's fee petition is replete with a problem that is, unfortunately, seen in many fee petitions submitted to the court. Like many other practitioners, plaintiff's counsel often billed a total number of hours for a day when more than one task, often many tasks, were performed, without specifying what portion of time was spent on each task. I refer to this practice, as other courts have, as "block billing." See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554 n. 15 (10th Cir. 1996) (term "block billing" refers to "the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."). The problem it creates is that the court cannot assess the reasonable number of hours spent on a given task when the time spent on the task is not segregated from time spent on other tasks.

For example, in researching for and drafting the motion for the preliminary injunction, attorney Gillion Ellis spent 0.4 hours on December 19, 1999, 3.3 hours on December 20, 1999, 2.4 hours on December 21, 1999, and 3.6 hours on December 22, 1999. Pltf's Exh. A at p. 25. Clark spent 0.2 hours on December 17, 1999, 0.5 hours on December 20, 1999, 0.4 hours on December 22, 1999, 0.3 hours on December 28, 1999, and 1.0 hours on December 29, 1999. Id. at pp. 25-26. Day spent 3.8 hours on the preliminary injunction on December 29, 1999. Id. at p. 25. Because these were the only tasks delineated in the particular billing entry, I can easily add the number of hours to determine the total time spent on the motion, a prerequisite to determining if that amount of time was reasonable.

However, in addition to those entries, the billing statement shows that on January 3, 2000, Day spent some portion of 3.8 hours on the preliminary injunction, on December 30, 1999, he spent some portion of 5.0 hours on the matter, on December 29, 1999, he spent some portion of 5.3 hours, on September 28, 1999, he spent some portion of 4.5 hours, and on September 8, 1999, he spent some portion of 3.5 hours. Id. at pp. 17, 25, 26. In addition, on November 2, 1999, Clark spent some portion of 3.0 hours on the preliminary injunction motion. Id. at p. 20.

Because the attorneys lumped several separate tasks together in one billing, I cannot discern how much of that time was spent on the preliminary injunction motion and thus, cannot determine whether the total time spent on the motion was reasonable or unreasonable. This same problem occurs with other tasks such as responding to the motions for summary judgment and to dismiss, drafting witness lists, and drafting jury instructions.

Another problem this creates is seen with the second amended complaint. As discussed below, I conclude that any time spent on the second amended complaint is not compensable. Yet, because of the block billing problem, it is not possible to total the hours that were devoted to this particular task. For example, on December 20, 2000, Day billed 4.7 hours for the following tasks: draft letter to Duffy regarding amended complaint, draft public records request, finish memorandum of supplemental authorities. Id. at p. 53. Here, any of these entries could have taken a small or a large portion of the 4.7 hours. There is no indication of how much time was spent on the letter regarding the amended complaint. When any of the tasks could have taken very little time, or most of the 4.7 hours, it would be completely arbitrary for me to ascribe a certain portion of the time to the letter to Duffy regarding the amended complaint as opposed to the other tasks. This problem occurs with other disallowed categories as well.

Other courts have encountered the problem. See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) ("[A] district court may discount requested attorney hours if the attorney fails to keep `meticulous, contemporaneous records' that reveal `all hours for which compensation is requested and how those hours were allotted to specific tasks.") (internal quotation omitted); Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (affirming district court's reduction of fee award by thirty-five percent because of attorney's failure to adequately document how large blocks of time were utilized); Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983) ("if [prevailing parties] intend to seek attorney's fees . . . [their attorneys] must keep meticulous, contemporaneous time records to present to the court upon request. These records must reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks — for example, how many hours were spent researching, how many interviewing the client, how many drafting the complaint, and so on."); Reyes v. Nations Title Agency of Ill., Inc., 2001 WL 687451, at *1 (N.D.Ill. June 19, 2001) (refusing to award fees for all entries billed as "block time"); Webner v. Titan Distr., Inc., 101 F. Supp.2d 1215, 1231 (N.D.Iowa 2000) (noting propriety of reductions for block billing); In re Chicago Lutheran Hosp. Ass'n, 89 B.R. 719, 735 (Bankr. N.D. Ill. 1988) (denying payment for all block-billed entries); but see Cadena v. The Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000) (noting that Ramos did not establish a per se rule against block billing; awarding fees when attorney submitted time records which sufficiently allowed the court to determine the time the attorney allotted to a specific task).

I note that in this case, plaintiff was unable to eradicate the problem with additional filings when given an opportunity to do so. At oral argument, I inquired if plaintiff had any additional time records, diaries, calendars, or similar records, which would show how much time was devoted to a particular task. Plaintiff was unable to provide further itemization from existing records.

Plaintiff argues that eliminating the entire "block billed" entry is an abuse of discretion and contrary to Ninth Circuit law. Plaintiff contends that while inadequate documentation of hours may be used to reduce the number of hours a court determines is reasonable, the court may not rely solely on inadequate documentation to adjust the lodestar calculation. See Cunningham v. County of Los Angeles, 879 F.2d 481, 484, 487 (9th Cir. 1988) (in determining reasonable number of hours, court may consider hours inadequately documented as one of Kerr factors; court may not later adjust the lodestar for poor documentation).

Plaintiff misapprehends the "adjustment" here. I do not rely on the block billing problem to adjust the lodestar because, at this point, I have not performed the lodestar calculation of multiplying the reasonable number of hours by a reasonable hourly rate. I deduct the block billing entries as part of assessing the reasonable number of hours, which is in accordance with Cunningham and similar cases. While some district courts have dealt with the block billing problem in other ways, such as adjusting the lodestar after computing the reasonable number of hours and the reasonable hourly rate, or by parsing through each block billed entry in an effort to ascribe time to each task, with a fee petition supported by more than two hundred pages of briefing and exhibits (including more than one hundred pages of billing entries), I conclude that it is appropriate to exercise my discretion by eliminating the entire block billed entry as other courts noted above have done.

Plaintiff also argues that requiring such specific delineation of time will result in more general timekeeping entries rather than more specific timekeeping entries because plaintiff is rewarded for large blocks of time that do not distinguish among tasks. Again, plaintiff's argument is unavailing. If an attorney or clerk spends all of his or her time on one task, that is the only task that should be recited in the billing entry. If work is performed on more than one task, all tasks should be recited and the amount of time for each task should be designated in the billing entry with, perhaps, the total amount for the day listed separately.

Because attorneys should be accurately recording their time, the requirement that the time spent on each task be recorded will not be a disincentive to continued accurate time recording. In fact, in this case, there are at least two time entries by Clark in which he did exactly what is required. On December 26, 2000, Clark worked a total of 7.0 hours on several tasks. Pltf's Exh. A at p. 53. In the description of his time, however, he broke down the 7.0 hours by task. Id. Thus, for the time spent studying my opinion and planning a responsive memorandum, he indicated that he spent 2.3 hours. Id. For analyzing issues remaining for trial, he spent 0.6 hours. Id.; see also id. at p. 56 (January 6, 2001 entry by Clark). If all of plaintiff's billings were performed in this fashion, there would be no block billing problem.

Recognizing the rationale of Cadena, I will not eliminate all block billed time. Where the blocks are small enough, or the task described so as to allow me to reasonably appreciate the time spent on each task, I will do so. I also have tried to read the entries with an eye toward finding delineated tasks sufficiently related to each other to allow them to be seen as one task. Having examined these billing entries multiple times, I conclude that block billing entries of three or more hours and containing four or more tasks, prevent me from assessing the reasonable number of hours spent on a given task. Similarly, any block billing entry of three or more hours, which contains two or more tasks, if one of them could have taken anywhere from a small to a substantial amount of time, also prevents me from determining the reasonableness of the time spent.

The same "failure to segregate" problem is seen in entries of less than three hours as well. As seen below, I do apportion a part of each entry to each task in the "under three hours" entries by dividing the number of tasks by the total number of hours, and then rounding up or down to the nearest tenth. In contrast to those entries of three hours or more, I do not consider this practice arbitrary when applied to the smaller blocks of time because it is reasonable to assume with the smaller blocks, that the tasks are more likely to be equally time consuming. Furthermore, even if I were in error, the effect of the error would be de minimis with the smaller time blocks as opposed to the larger blocks of time at issue in this section.

The table below contains all potentially disallowable "block billed" hours. As can be seen, however, not all of these entries are disallowed. The reasoning is explained in the table. Furthermore, although some previously disallowed hours could also be disallowed because of a block billing problem, for efficiency reasons, any previously disallowed hours are not included here. Similarly, several of the "block billed" entries could also be deducted from the reasonable hours spent because they run afoul of another problem, such as the time spent being clerical time. Again for efficiency reasons, I will not discuss the other objections if the time is disallowed here. The following hours are allowed or disallowed for the reasons explained:

DATE ATTY TASKS HOURS ALLOWED OR DISALLOWED 6/30/99 Clark Conf w/D.C. re SO and appeal; prep of 3.5 Allowed — single next strategy and t/c w/client; t/c's task client 7/6/99 Chandler Draft appeal to county; travel to and 6.2 Disallowed — block from county; review file materials; billing legal research on issues related to appeal 7/26/99 Day T/c w/client; draft writ of review; 5.9 Disallowed — block discuss w/Clark re: county's actions billing and our strategy 7/27/99 Day T/c w/client; send letter to Division 3.0 Disallowed — block of State Lands re: dredge permit; meet billing w/Clark and Chandler to discuss litigation strategy ag county and new `tree' issue; research issue of whether the writ of review will stay the enforcement of the Stop Work Order 7/28/99 Day T/c w/client; research jurisdiction 3.8 Disallowed — block over the DMD site; discuss w/Clark re: billing litigation strategy; work w/Division of State Lands to get temp dredge permit for client 7/29/99 Clark Conf w/D.C. and draft petition for writ 3.5 Allowed — single of review; multiple p/c's w/coun task counsel; draft petition for writ of review; work out stip w/county counsel 8/11/99 Day Discuss w/Clark re: litigation 3.1 Disallowed — block strategy; finish drafting complaint billing 9/8/99 Day Discuss w/Clark re: amending complaint 3.5 Allowed — single and filing preliminary injunction; task draft injunction and amended complaint 9/28/99 Day Research case file and prepare strategy 4.5 Disallowed — block w/Clark and Chandler; tel meeting billing w/client; draft amended complaint and motion for injunctive relief 11/2/99 Clark Conf w/law clerk on prelim injunction; 3.0 Disallowed — block prep for R16 conf; att R16 conf; f/u billing w/Chandler 11/9/99 Clark Review discovery status; prep and argue 4.0 Disallowed — block R12 motions; t/c to Litwak; memo to billing Frevach Board of Directors; further review of history b/t County and client 11/10/99 Clark Cont review and annotation of history 4.3 Disallowed — block w/County, analyzing Qs of waiver billing estoppel; edit budget letter; outline letter to Litwak re: renewed threat of fines; conf w/law clerk re research project 12/10/99 Day Discuss w/Clark re strategy of 3.7 Disallowed — block challenge; research OARs, statutes, and billing county code and draft memo outlining authority and standards for county's recommendation to the Oregon Liquor Control Commission (OLCC); contact client re status of case; draft confirming letter to county board re hearing procedures 12/20/99 Ellis Review pleadings; research law re 3.3 Disallowed — block preliminary injunction requirements; billing draft memo re same; analyze [unreadable] 12/29/99 Day Draft prelim injunc motion and support 5.3 Disallowed — block memo; [at least two other tasks listed billing but portions unreadable] 12/30/99 Day Draft prelim injunc motion; fax drafts 5.0 Disallowed — block to client and Chandler; contact billing McCaulley to [unreadable] and other [unreadable] computer research 1/3/00 Day Draft and make final edits to pre 3.8 Disallowed — block injunction motion; assemble exhibits; billing discuss litigation strategy w/Clark 1/10/00 Day Draft orders, requests for prod and 3.1 Disallowed — block request for admiss; strategy and status billing conf w/Clark 1/26/00 Day Strategy and status conf w/ Clark; 6.2 Disallowed — block assist Clark in prep for depo; continue billing research Qs of application of statute of limitations and respondeat superior; calculate number of days county's action has kept client out of business 2/2/00 Day Begin draft of reply brief to county's 4.8 Disallowed — block response; discuss w/Clark re brief; billing drive to county land use planning offices and get staff reports and other pertinent legislative history; discuss implications of staff reports and other docs w/Clark 2/3/00 Clark Review transcripts of Muir and Busse; 6.5 Allowed — giving t/c's re continued depos; conf plaintiff the w/McCaulley and Sprando re depositions; benefit of the doubt, attend depos of McCaulley and Sprando the review of the transcripts, the telephone calls, and the conference appear related to the preparation for and attendance at the depositions of McCaulley and Sprando so single task 2/4/00 Clark Conf w/McCaulley and Sprando re photos; 3.7 Disallowed — block w/RAD re reply memo; conf w/Ellis re billing research project on meaning of Del Monte Dunes and Dolan decisions and jury instructions for these facts 2/7/00 Clark Work on reply brief; conf w/LA re 4.5 Disallowed — block document production billing 2/7/00 Day Complete reply brief; put together 5.0 Allowed — single exhibits, transcripts; discuss reply task brief w/Clark 2/8/00 Heintz Review McCaulley's files; index and 4.4 Allowed — single analyze documents task 2/10/00 Heintz Research Washington County codes; index 4.0 Allowed — single McCaulley info; t/c to Clackamas County task for codes 2/11/00 Heintz T/c to Clack County re codes; org docs 3.8 Allowed — single into folders; revise index; org task remaining docs 2/14/00 Day Draft stip letter to Duffy; prep for 4.1 Disallowed — block prelim injunc hearing billing 2/15/00 Clark Prep for and continue McCaulley depo; 5.0 Disallowed — block prep Sprando for depo billing 2/19/00 Day Drive to county and pickup copies of 6.0 Disallowed — block photos; drive to Vancouver and pickup billing photo of subject property; contact client, McCaulley re Sunday meeting time; status and strategy conf w/Clark 2/19/00 Day Research claims under Art I, section 20 4.5 Disallowed — block of Oregon Constitution and equal billing protection claims; status and strategy con w/Clark re depos and upcoming prelim injunc hearing 2/21/00 Day Contact McCaulley, Sprando, and 3.3 Disallowed — block Chandler; complete stip exh list billing exh binder for Judge Hubel 2/28/00 Clark Conclusion of Sprando and McCaulley 8.5 Allowed — single depos; conf w/ Greg and Sprando; revise task memorandum 2/29/00 Clark Prep for hearing; edit memo; draw 6.5 Allowed — single exhibits; conf w/clerk and t/c's task w/Chandler, Sprando, and Black; re-edit memo; outline xe of D's witnesses and direct exam of ours; outline opening and closing comments 2/29/00 Kleve Revise supp'l memo in support of prelim 3.8 Allowed — injunc; assemble and mark all exhs; t/c reasonable to w/client re Chandler assume telephone call with client was no more than 0.2 hours; then view remaining two tasks as single task so time reasonable with no block billing problem 2/29/00 Heintz Order supplies for exh notebooks; go to 6.0 Disallowed — Office Depot to pick up supplies; sort although all tasks through all exhibits to locate specific appear clerical, exhibits to be used in prelim injunc giving plaintiff hearing; place ex stickers on exhs; the benefit of the make four photocopies of each exh; doubt it is separate, three hole punch; organize possible to treat exhibits into five separate notebooks; all but the first create exh index; create labels for exh two tasks as notebooks non-clerical; but, cannot reasonably determine the amount of time spent on first two tasks so all is disallowed as a block billing problem 2/29/00 Heintz Receive instructions from atty re 3.2 Disallowed — block photocopies of photo exhs; call Pacific billing Legal Copy to place order; explain order to sales rep upon pickup; go through notebook of exhs to determine which exhs not sent to Duffy in request for stipulation; draft letter to Duffy re stipulation of three add'l exhs; fax letter to Duffy w/photocopies of three exhs; proofread motion for memo and memo 3/1/00 Chandler Prepare for federal court hearing; meet 3.5 Allowed — single w/Clark task 3/1/00 Clark Prep for Motion for prelim injunction 8.5 Allowed — — reply to unauthorized brief; prep reasonable to treat witnesses; finalize exhs as two topics and reasonable to assume that each took one-half of the 8.5 hours 3/1/00 Kleve Prepare letter to court re objections 3.2 Disallowed — block to Duffy's reply-reply; assemble and billing expedite; prep letter to Duffy re submission of her reply-reply; assemble and expedite; finalize supp'l memo in support of prelim injunc; t/c w/Judge Hubel's chambers re letter to Judge Hubel; copy and assemble supp'l memo in support of prelim injunc and prep for filing; hearing prep 3/6/00 Day Status and strategy conf w/Clark re 6.3 Disallowed — block prelim injunc hearing; research billing county's arguments; draft reply to county's arguments 3/8/00 Day Status and strategy conf w/Clark re 6.7 Disallowed — block response to county's sur-reply brief; billing research jurisdiction, irreparable harm, and right to be notified of appeal rights 3/8/00 Kleve T/c w/court re proposed witnesses; 3.5 Disallowed — block revise response to prehearing brief billing 3/10/00 Day Status and strategy conf w/ Clark; 3.5 Disallowed — block review and edit response to county's billing sur-reply brief; contact McCaulley re retaliation claim; research retaliation claim elements 3/13/00 Day Research retaliation claim elements; 5.8 Disallowed — block status and strategy conf w/Clark; phone billing conversations w/McCaulley re events prior to 1997 Stop Work Order; phone conversations w/client re possible issues of retaliation 3/16/00 Heintz Copy documents; bate stamp and catalog 4.5 Disallowed — block docs; prepare labels; complete index billing 3/17/00 Day Conversation w/client re retaliation 3.4 Disallowed — block claim; conversation w/McCaulley re billing retaliation claim; research elements of a retaliation claim 3/21/00 Day Complete subpoena to Division of State 3.5 Disallowed — block Lands and mailed off to County to billing satisfy notice requirements; review County's amended answer for defects; research whether county is entitled to attorney fees; check to make sure county complied w/Federal Rules of Civil Procedure 3/24/00 Day Review writ of review process; begin 6.0 Disallowed — block drafting writs of review; research billing county's defenses; draft request for production; research elements of retaliation claim 4/3/00 Ellis Research and analyze law re takings and 6.4 Allowed — single other constitutional claims; conf task w/Clark re initial analysis of claims 4/13/00 Ellis Read cases and analyze legal theories; 6.6 Allowed — single conf w/Clark re same task 4/14/00 Day Continue assembling timeline of 5.9 Allowed — based on county's actions in retaliation to the nature of the client's activities; draft and complete tasks in this requests for production from county entry, it is reasonable to assume that each took one-half of the billed time 4/17/00 Day Complete request for production and 5.6 Disallowed — block timeline research; begin drafting writ billing of review service papers and research proper procedure pursuant to case law 4/19/00 Day Read prelim injunc opinion and check 8.0 Disallowed — block whether or not court correctly stated billing the rules on statutes of limitations and 1983 actions; research case law on fraudulent concealment and 1983 actions; go to county offices and federal courthouse to get documents needed for service of writ of review 4/25/00 Day Research govt estoppel and fraudulent 4.5 Disallowed — block concealment; discuss case w/Eric billing Winters so he can take over on my leave; begin draft of memo on concealment and estoppel 4/25/00 Kleve T/c w/ Ferrari re DOJ subpoenaed docs 2.3 Disallowed — cost and depos; notes re same; t/c although this entry w/Ramis and client re May 1 meetings; is less than the receive instructions fr atty; t/c w/ 3.0 hour threshold Ferrari re 4/28/00 depos; draft letter I have used for to Duffy re postponement of 4/28 depos; evaluating block assemble and expedite; t/c w/court billing entries, reporter re same; t/c w/ DOJ and Duffy the number of tasks re rescheduled D.L. depos; notes re listed in this same; revise First Amended Complaint entry makes it impossible for me to reasonably assess the amount of time spent per task 4/26/00 Day Meeting w/client; research writ of 6.0 Disallowed — block review status to make sure we are on billing track w/everything; complete memo on govt estoppel and fraudulent concealment 5/1/00 Clark Conf w/Tim and clients re strategy; 3.0 Disallowed — block board meeting on case and continency or billing not 5/8/00 Clark Prep of action plan, prep for depos of 3.4 Disallowed — block Estrin billing 5/18/00 Roggendorf Organized and updated 1983 manuals; 6.3 Disallowed — block corporate emotional damages billing 5/26/00 Roggendorf Further research on 1983; research into 5.3 Allowed — single property right as civil rights under task 1983; research into corporation's standing; drafting and editing of memo to atty; research associational standing and association law 5/29/00 Roggendorf Research; located materials on 8.0 Disallowed — block corporate claims for others; conf w/law billing clerk; research and begin drafting 6/1/00 Clark Prep for attend depos of D.L. witnesses 7.5 Disallowed — block on 5/31; research re cost of subpoena billing 6/8/00 Roggendorf Draft and edit memo addendum for 1983 5.1 Allowed — single third party standing memo; reconcile task cases and analyze chances of success for assertion Sprando's emotional damages; copy cases and compile memo and cases for atty 6/12/00 Paxton Conf w/ atty re fax from assistant atty 3.75 Disallowed — block general; rec'd instructions from atty billing re review of case law referred by Ferrari and wrote legal memo on interpretation of case law referred to 7/7/00 Clark Prep for and att at D.C. depo; letter 4.0 Disallowed — block requesting hearing; debrief w/Sprando billing 8/2/00 Roggendorf Research subpoena and atty fees therein 4.1 Disallowed — block under FRCP; drafted motion to quash billing 8/4/00 Roggendorf Retyped motion to quash; researched 4.2 Disallowed — block atty fees under FRCP; entered revisions billing to motion to quash; organized exhs 8/7/00 Day Draft letter to Duffy asking for an 4.1 Disallowed — block extension; review county's motion for billing summary judgment and motion to dismiss and outline defenses 8/8/00 Roggendorf Prepared exhs; edited motion to quash; 3.1 disallowed — block drafted affid of Clark; copied filing; billing mailed pleadings to court, opposing counsel; filed motion 8/9/00 Day Meet w/client re county's request for 3.0 Disallowed — block production; draft motion to extension billing of time and affid 8/14/00 Day Prepare docs in response to county's 5.0 Disallowed — block RFP. Draft letter to Judge Hubel re billing motions for extension; review docs to make sure there is no privileged info; deliver docs to the county 8/15/00 Day Review county's motions; draft reply to 5.7 Allowed — single county's motion and confer w/Clark re task county's weak points 8/19/00 Day Draft response to county's summary 7.0 Allowed — single judgment motion; make edits to response task to county's motion to dismiss 8/19/00 Kleve Prepare letter to Leverton re expert 3.0 Disallowed — block testimony; prepare letter to Duffy re billing Sauvie Island Bridge discovery issues; receive instructions fr atty re P. Johnson; prep affid of McCaulley; prep Sprando affid 8/20/00 Day Draft response to county's motion for 6.0 Allowed — single summary judgment; edit reply to task county's motion to dismiss 8/20/00 Kleve Revise McCaulley affid; revise Sprando 3.5 Allowed — view as affid; prep Chandler affid; prep all related to questions of fact statement; prep memo motion for summary in opposition to motion for partial judgment and thus, summary judgment single task 8/21/00 Clark Week of 8/14-weekend of 8/20: review 17.0 Disallowed — block D's summary judgment motion; review billing affids; exhs; review motion to dismiss writ; analyze all of the above; review all depo transcripts; commence edits to response drafts of all; dictate affids and intro to memo; revisions; meet w/JM and CS re affids; further edits; further analysis of cases, including Del Monte Dunes; re-edits of memo and memo on motion to dismiss; dictate fact section; final edits 8/21/00 Day Complete response to motion to dismiss 9.0 Disallowed — block and motion for summary judgment. billing Compile affids and exhs to be filed w/motions; file response at the courthouse 8/21/00 Kleve Revise Chandler affid; revise Sprando 8.0 Disallowed — block affid; revise McCaulley affid; revise billing response to motion for summary judgment; assemble and expedite letter to Leverton re expert testimony; assemble and expedite letter to Duffy re Sauvie Island Bridge excavation; finalize all pleadings and affids; photocopy all docs and prepare for filing 8/23/00 Day Meeting w/ client re permits for 3.5 Allowed — single expansion; review county code re task permits to determine what client will need for the applications 9/6/00 Day Draft second amended complaint and 3.0 Disallowed — block letter to county counsel re proposed billing amendments; research jurisdiction of the Burlington Water District 9/11/00 Day Draft memo re county's latest claim 4.5 Disallowed — block that Fred's can't apply for permits b/c billing they are in violation of the county code; contact neighbors of Fred's re proposed meeting w/county; draft and revise second amended complaint to add claims ag county for denial of various permits 9/26/00 Day Research new Ninth Circuit caselaw re 3.3 Disallowed — block 1983 claims and takings claims; meet billing w/client re motion to compel; review docs already produced to see if we have already complied w/county's requests 10/2/00 Day Draft letters to Duffy re amending 3.6 Disallowed — block complaint; research whether or not the billing amount the county seeks for public records request is reasonable; meet with Jan Hamer re: Weilert property 10/11/00 Day Conversation w/client; draft motion to 6.3 Disallowed — block amend; cull through client records for billing appraisals; research Cayettano case for memo of supp'l authorities 10/20/00 Day Review pltf and county's production; 3.4 Allowed — single draft public records request task 10/25/00 Day Review county's public records request 8.3 Disallowed — block production; draft motion and memo to billing supp'l record; contact county counsel re extension of time to October 31st on GEC permit 10/26/00 Day Draft and complete motion to supp'l 7.6 Disallowed — block record; prep exhs and affids; contact billing client re county's response to request for extension fo time; draft response to county's letter 11/6/00 Day Draft letters to Duffy re motions to 5.9 Disallowed — block supp'l records and for supp'l billing authorities; status and strategy conf w/Clark; draft certificate of conference and certificate of service 11/7/00 Day Status and strategy conf w/Clark; 7.3 Disallowed — block discuss upcoming strategy for summary billing judgment motion, as well as strategy for other pending motions before the court; draft letters to Duffy re contact w/represented client and motion to supplement authorities; begin drafting reply to county's response to our motion to amend 11/27/00 Clark 11/16-17-18: prep for and att at 17 Disallowed — block motion for summary judgment, motion to billing supp'l record, motion to dismiss writ, and motion to amend 11/28/00 Day Draft response to DOJ's motion; contact 3.8 Disallowed — block client re hearing at the Burlington billing Water District; status and strategy conf w/ Clark re Burlington Water District 11/29/00 Day Complete response to DOJ's motion for 3.6 Allowed — single third party relief; complete affid of task Clark and Day 12/20/00 Day Draft letter to Duffy re amended 4.7 Disallowed — block complaint; draft public records billing request; finish memo of supp'l authorities 12/21/00 Day Pick up court opinion and review; 6.3 Disallowed — block status and strategy conf w/ Clark to billing discuss remaining claims and trial strategy; contact opposing counsel re outstanding motion to extend time 12/26/00 Lowe Rec'd instructions from atty re 3.7 Allowed — single analysis of Oregon law on statutes of task limitations and punitive damages in civil rights actions; analysis of the Or APA for purposes of analogizing to the GEC permit process; analysis of statutes of limitations and case law 12/27/00 Day Status and strategy discussion w/Clark 7.5 Disallowed — block re Judge Hubel's order and supp'l billing filing; draft supp'l filing; draft letter to Duffy asking her to file county's answer to our amended complaint; draft complaint against county based on Woodwind Village case 12/28/00 Day Send update to Chandler re court's 5.1 Disallowed — block decision on the county's summary billing judgment and get name from Chandler of expert on erosion and soils; draft supp'l reply to sua sponte order 1/2/01 Day Status and strategy conf w/Clark; 4.0 Allowed — single meeting w/Lowe and Clark re punitive task damages; meeting w/Ramis and Clark re testimony of Ramis; contact appraiser to discuss info needed to evaluate value lost by Fred's as a result of county's actions; t/c w/client 1/3/01 Day Complete memo in opp to sua sponte 7.5 Disallowed — block motion; contact opposing counsel re billing motion to reconsider; contact soils expert re expert witness testimony; draft pretrial order 1/4/01 Lowe Draft memo of law re admissibility of 4.9 Allowed — single subsequent acts to prove punitive task damages; rec'd instructions fr atty re drafting of trial memo; compilation of documents to review in prep of trial memo 1/4/01 Day Draft pretrial order; go out to Fred's 7.3 Allowed — the first and supervise site visit with soils and third entries expert; review jury trial management are reasonably order viewed as one task, making the entry contain two tasks; based on the nature of the tasks, it is reasonable to assume that each task took one-half of the billed time 1/5/01 Day Draft and complete pretrial order; 7.7 Disallowed — block status and strategy conf w/Clark re billing jury trial management order; contact appraiser re status of report; contact soils expert re status of report and revisions of draft 1/6/01 Day Status and strategy discussion w/Clark; 5.8 Disallowed — block discuss exhibits and witness list; billing compile exhs and begin drafting witness list 1/6/01 Weber Prep of trial exhibits; organize trial 5.1 Disallowed — block notebooks; prep trial exh list; prep of billing exh notebooks 1/8/01 Clark Final review and analysis of exh list 3.0 Allowed — although and exhs; semifinal review of witness viewed as three list and narratives; review of Duffy separate tasks, motions based on the nature of the tasks in this entry, it is reasonable to assume that each took one-third of the billed time 1/8/01 Day Draft witness list; draft expert 8.5 Allowed — view as witness summaries; contact witnesses re single task of their testimony and availability; witness preparation contact client re other witnesses; status and strategy conf w/Clark; review proposed exhs and complete exh list 1/8/01 Weber Receive instructions fr atty; prep exh 8.5 Disallowed — block list; assemble exh notebooks for trial; billing assist atty w/trial prep 1/9/01 Day Prep witness list, expert summaries, 9.5 Allowed — and exh lists and submission; meet with reasonable to view client re case status and discuss other as two tasks; based possible witnesses on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 1/9/01 Weber Receive instructions fr atty; assist 7.9 Disallowed — block atty w/prep of trial exh notebooks; billing assemble and expedite 1/10/01 Day Meet w/Lowe re second wave of pretrial 6.1 Disallowed — block docs; draft letter to Army Corps of billing Engineers re testimony of Jerry Black; review county's exh submissions and witness statements; research motion to enter judgment filed by county 1/11/01 Day Draft pretrial order; review county's 8.2 Disallowed — block exh lists and witness narratives; billing contact opposing re expert witness statements 1/12/01 Day Draft pretrial order; draft jury 6.8 Allowed — instructions; contact opposing counsel reasonably viewed re proposed order as two tasks; based on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 1/15/01 Day Complete list of objections to deft's 8.2 Allowed — exh list; draft proposed jury reasonably viewed instructions; status and strategy conf as two tasks; based w/Clark on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 1/16/01 Day Draft motion in limine; draft verdict 7.8 Disallowed — block form; draft voir dire questions billing 1/17/01 Day Draft motions in limine; draft verdict 6.9 Disallowed — block form; draft proposed jury instructions; billing draft proposed voir dire questions; contact opp counsel re extension of time re jury instructions; discuss w/opp counsel settlement and atty fees 1/18/01 Day Review county's proposed jury 5.4 Allowed — single instructions; amend jury instructions task and contact county counsel to discuss court order 1/19/01 Day Contact opposing counsel and discuss 5.8 Allowed — single proposed jury instructions; review and task revise jury instructions per our agreement; contact court for extension of time to file jury instructions 1/20/01 Day Draft jury instructions per our 4.3 Disallowed — block agreement w/county; contact client re billing county's most recent record request 1/22/01 Day Complete proposed jury instructions; 5.4 Allowed — single contact opp counsel to see if we can task reach some agreement on the instructions per the court's order 1/23/01 Day Draft third wave of pretrial documents 7.4 Allowed — single — rebuttal expert stmts, potential task witness list and response to D's motions in limine 1/24/01 Day Draft response to D's motions in 5.7 Disallowed — block limine; contact Barton Delacy re billing appraisal; review county's new exhs 1/25/01 Day Meeting w/client; status and strategy 3.8 Disallowed — block discussion w/Clark; draft letter to opp billing counsel re GEC permit conditions; contact Leverton re Fred's neighbor's expansion plan 1/26/01 Clark Analysis of county's pretrial 6.0 Allowed — pleadings; review of depos of Estrin reasonably viewed and Busse (weekend trip to Seattle) as two tasks; based on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 1/26/01 Day Review county's filings to make sure 3.9 Allowed — our letter to court is accurate; draft reasonably viewed letters to opposing counsel re permit as two tasks; based applications and takings claims on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 1/27/01 Day Status and strategy conf w/Clark; trial 5.9 Disallowed — block conf w/ Judge Hubel; meet w/opp counsel billing re settlement; prepare final draft of second complaint ag county 1/29/91 Clark Prep for and att at conf w/Judge Hubel; 5.0 Disallowed — block f/u work on correspondence w/Duffy and billing review of witness list and exhs; f/u w/Duffy to discuss all matters and settlement; settlement letter to Duffy; analyze Duffy's late argument on state constitutional law 1/30/01 Clark Review all new county exhs; letters to 4.0 Disallowed — block Duffy re settlement; review new motion billing to dismiss 1/30/01 Day Research state takings law and whether 6.7 Disallowed — block or not we must file state takings billing claim; review county's filings and exhs; status and strategy conf w/Clark; research whether or not we are entitled to atty fees 1/31/01 Clark T/c to Duffy; letter in confirmation; 5.5 Disallowed — block complete review of late exhs; review billing OSB ethics op on use of privileged docs; analysis of response to motion to dismiss; prep for and att at perpetuation dep; edit first draft of our response to motion to dismiss 1/31/01 Day Review county's motion to dismiss and 8.6 Disallowed — block motion for entry of judgment on the billing pleading; research whether or not futility exception applies; draft response to motions, and draft motion for sanctions to recover atty fees paid by our client to defend county's meritless motions; draft second amended complaint 2/1/01 Clark Trial prep — work on demonstrative 7.0 Allowed — exhs; opening statement themes; review of reasonably viewed objections to new exhs — prep and conf as two tasks; based w/Duffy; settlement conf w/ Duffy and on the nature of county litigation manager the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 2/1/01 Day Draft amended complaint; draft response 8.6 Disallowed — block to county's motion for judgment on the billing pleadings and motion to dismiss; draft motion for sanctions; attend settlement conf w/county 2/2/01 Day Settlement conf w/ county; strategy and 7.3 Allowed — single discussion w/ Clark and Sprando; task research offers of judgment to make sure county missed deadline; research section 1988 atty fees caselaw in Ninth Circuit 2/2/00 Clark Prep for and att at second settlement 6.5 Disallowed — block session; letter to Judge re f/u billing questions; letter to Judge re settlement; analyze county's memo on Daubert and analyze lateness and insufficiency of county's offer of judgment 2/4/01 Clark Further research on 1988 fees; conf 3.5 Allowed — w/associate re same; letter to Itkin reasonably viewed and Duffy on settlement; work on as two tasks opening statement (attorney fees and settlement); based on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 2/4/01 Clark Outline of proof elements and evidence 3.8 Allowed — single chart w/associate; create timeline; task work on linking exhs w/witnesses 2/4/01 Day Research Ninth Circuit caselaw on atty 6.9 Disallowed — block fees; develop case timeline and proof billing chart w/Clark; trial prep; draft letters to Duffy 2/5/01 Day Draft motions for sanctions; status and 8.5 Disallowed — block strategy conf w/Clark; draft letter to billing opp counsel re seasonal restrictions; build timeline for settlement conf 2/6/01 Clark Prep for and att at pre-pretrial conf; 10.0 Allowed — prep for and att at settlement conf w/ reasonably viewed Judge King; closure discussion w/client as two tasks (final trial prep and settlement); based on the nature of the tasks in this entry, it is reasonable to assume that each took one-half of the billed time 2/6/01 Day Status and strategy conf w/Clark; 10.0 Allowed — single meeting w/client; attend pre-pretrial task conf; settlement proceedings w/county 2/7/01 Day Implementation of settlement — conf 4.1 Disallowed — block w/client and develop plan of action to billing move forward on expansion; review county code and GEC 47-99 application; draft letter to opp counsel re contact of county employees 2/8/01 Day Settlement implementation — review 4.3 Disallowed — block GEC Permit 47-99 and county GEC code, billing community service code; contact Muir re development plans and permits required to implement those plans; t/c w/ Tokos re development plans and required permits 2/12/01 Day Implementation of settlement — order 3.4 Disallowed — block transcript from court rptr; review FRCP billing 54 to set timeline for submitting fee petition; contact client re documents needed to complete GEC permit application; review GEC permit 20-97 and county's surveyor records re alleged overfill; contact Muir re alleged overfill and clarification of county's position on the matter 3/5/01 Day Settlement implementation — draft 5.2 Disallowed — block letter to Muir re alleged overfill of billing parking area; research fee petition requirements; contact Kathleen O'Donnell re outstanding bills and 1999 bills to client; place call to engineer to find out status of info requested by county; contact Joe Don Willis re testimony re fee petition 3/7/01 Day Settlement implementation — meeting 4.8 Disallowed — block w/Muir and Tokos re status of permit billing apps and discuss allowing client to do maintenance work on her property; contact client re outcome of meeting; draft confirming letter to Muir and Tokos; draft letter to county counsel re status of fee petition 3/8/01 Day Settlement implementation — prepare 4.5 Disallowed — block fee petition; complete letter to county billing confirming yesterday's discussions and agreement 3/12/01 Day Settlement implementation — prepare 6.5 Disallowed — block fee petition; contact county re remedial billing GEC app; contact client re same 3/13/01 Day Settlement implementation — 6.5 Allowed — single complete fee petition; draft memo of law; task meet w/Willis re fee petition and affid; contact Spencer Neal re affid in support of fee petition; contact county re site visit 3/15/01 Weber Assemble docs re fee petition; assemble 3.2 Allowed — single and expedite to Neal; prep affid of task Clark; retrieve docket from court; prep affid of Hinkle; expedite affid and docket to Neal, Willis, and Hinkle 3/19/01 Day Settlement implementation — complete 8.0 Allowed — single fee petition; draft affids for task O'Donnell and Sprando; deliver petition to court and to opp counsel; file petition 3/19/01 Weber Prepare affid of C. Sprando; prepare 7.0 Allowed — single affid of M. O'Donnell; prepare affid of task of preparing K. Clark; review records for letter to fee petition S. Duffy re settlement; arrange for delivery of affid from C. Hinkle; meet w/client re affid; prepare court documents re fee petition; assemble fee petition; deliver documents to courthouse and to opposing counsel 3/21/01 Day Settlement implementation — meet 7.0 Disallowed — block w/client and engineer in prep for billing meeting w/county and D.L.; meet w/county and D.L.; draft letter to county re amending the current GEC app 3/27/01 Day Settlement implementation — meeting 4.0 Disallowed — block w/Phil Quarterman re outstanding issues billing county has re wetlands concerns; contact county re permits; status and conf w/client G. Secretarial v. Professional Tasks

The billing entries show many secretarial-type tasks, such as proofreading documents, indexing documents, and assembling documents. While deposing Clark on issues related to this fee petition, defendants learned that there are no legal secretaries in Clark's firm. Rather, there is a receptionist who does simple tasks like collating, and all other support staff are called legal assistants or paralegals whose time is billed to clients.

Defendants argue that they should not have to pay $80-150 per hour for a professional to, for example, pick up and deliver documents that could be delivered more economically by a secretary or even a delivery service or the post office. I agree with defendants.

Costs associated with clerical tasks are typically considered overhead expenses reflected in the hourly billing rate, and are not properly reimburseable in a section 1988 fee award. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989) ("purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate, regardless of who performs them. . . .' [The] dollar value [of such non-legal work] is not enhanced just because a lawyer does it.'"); In re North, 59 F.3d 184, 195 (D.C. Cir. 1995) (cost of support staff properly allocable to overhead); Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982) (paralegal costs may be recovered "only to the extent that the paralegal performs work traditionally done by an attorney"); Gough v. Apfel, 133 F. Supp.2d 878 (W.D.Va. 2001) ("Purely clerical activities, regardless of who performs them, are considered overhead and are not compensable as [Equal Access to Justice Act] attorney fees"); Wermelinger v. Connecticut General Life Ins. Co., No. Civ. A. 3:97-CV-1100D, 1998 WL 401607, at *2 (N.D.Tex. July 15, 1998) (clerical or secretarial costs are part of an attorney's office overhead and are reflected in billing rate).

Plaintiff has not shown that the prevailing practice in this community is otherwise. The firm's decision to eliminate secretaries is within its prerogative. However, it is another decision entirely to bill a client, or to seek fees under a fee-shifting statute, for purely secretarial tasks. Thus, I deduct all time which is primarily secretarial or clerical in nature, regardless of who billed it. See Harris v. L L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) (approving district court's elimination of hours spent on secretarial tasks from its lodestar calculation); Barrilleaux v. Thayer Lodging Group, Inc., No. Civ. A. 97-3252, 1999 WL 397958, at *2 (E.D.La. June 11, 1999) (reducing attorney time to reflect deductions for clerical tasks); Wermelinger, 1998 WL 401607, at *2 (reducing lodestar by three hours for time spent on clerical tasks); Corman v. Lifecare Acquisitions Corp., No. Civ. A. 3:96-CV-0755D; 1998 WL 185517, at *2 (N.D.Tex. Apr. 10, 1998) (where paralegal rates charged for performance of clerical work, court reduced number of awardable paralegal hours); Inks v. Healthcare Distrib. of Ind., Inc., 901 F. Supp. 1403, 1415-16 (N.D.Ind. 1995) (defendant should not be charged with tasks that could be handled by clerical staff).

The following hours are deducted from the lodestar calculation:

Hours previously disallowed are not listed here.

After reviewing the billing entries from O'Donnell and Clark, it is clear that staff's use of the word "expedite" refers to transmission of documents, presumably by mail or fax. Thus, entries solely devoted to "expediting" are disallowed. Some of Kleve's entries show work on multiple tasks. While some have already been disallowed because of block billing, many of them are for under three hours and thus, have not run afoul of the guidelines I used for evaluating the block billing problem. Nonetheless, the entries for under three hours still suffer from a "failure to segregate problem" which complicates my review task.
Several of Kleve's entries show a paralegal task, followed by "finalizing" and "expediting." E.g., Pltf's Exh. A at p. 10 (July 6, 1999 entry by Kleve showing work preparing various letters then "[f]inalize all letters, assemble enclosures and expedite to all."). Although the finalizing and expediting is probably more akin to a clerical than a paralegal task, when Kleve has performed this task as to a letter or a few letters, I give plaintiff the benefit of the doubt and assume that the time spent finalizing and expediting is de minimis and therefore, not disallowed. However, when Kleve performs this task as to a more substantial motion or memorandum, the assumption of de minimis time evaporates. With regard to those entries, I will divide the total amount of time by the number of discrete tasks performed, ascribe the resulting figure to each task and then disallow the time spent on the secretarial task. I do not consider this to be arbitrary with entries under three hours.

Any calculation involving apportionment of time is performed by dividing the total number of tasks in the billing entry by the total billed time and then rounding that figure up or down to the nearest tenth.

The paralegal here is identified by the initials "JAJ." Pltf's Exh. A at p. 22. At the end of that month's billing statement, where the full names of the employees are listed, it shows this employee as "Jeanie A. [unreadable] ($80/hr Paralegal)." Id. at p. 23. However, she is later identified as Jeanie A. Jennings. Id. at p. 66.

Kleve lists 7.8 hours total for this entry. However, in the description of tasks, he lists 3.5 hours for preparing a draft of a reply brief and then 1.0 hours for revising a memo. That leaves 3.3 hours for the remaining seven tasks for which he does not segregate his time.

On occasion, the billing entries show a paralegal, or a paralegal/secretary in Weber's case, performing a task such as preparing a letter or an affidavit, when other billing entries for the same day or the previous day indicate that an attorney actually drafted that same letter or affidavit. In such cases, the only reasonable assumption is that the support staff did no more than type the letter and get it in the mail. Such a task is not compensable because it is clerical. In this entry, for example, it appears that Day prepared the letter and billed for his preparation time, meaning Weber's duties regarding the letter were clerical.

See footnote 10. Here, it appears that Clark already billed for time spent on a letter to the court regarding revised timelines on December 22, 2000.

Here, the first and third tasks are clerical in nature. The second task does not appear clerical because there is no attorney who apparently drafted the letters and Weber should be compensated for the time actually drafting letters. However, 2.2 hours divided by 3 tasks results in 0.7 hours per task which is an unreasonable amount of time for a cover letter to the court. In accordance with Weber's December 6, 2000 billing entry in which she billed 0.4 hours for preparing a letter to the court, I award her 0.4 hours here for the similar task.

See footnote 10. Here, Day billed for time drafting jury instructions on January 17, 18, and 19, 2001.

See footnotes 10 and 12.

See footnote 10. Here, Kleve billed for time preparing a letter to the court.

See footnote 10. Here, Clark billed for time drafting a settlement letter to Duffy.

This entry appears twice. It first appears on page 66 of plaintiff's Exhibit A, attached to plaintiff's original motion filed March 19, 2001. It also appears on page 2 of plaintiff's Exhibit A, attached to plaintiff's supplemental affidavit of Ross Day, filed April 6, 2001.

See footnote 10. Here, Day billed for preparing a letter to county counsel on February 28, 2001. O'Donnell also billed for drafting a letter on that date.

See footnote 10. Day billed for drafting letter to Muir on March 5, 2001.

See footnote 10. Day billed for drafting letter to County counsel on March 7, 2001.

See footnote 10. Day billed for drafting letter to Muir and Tokos on March 7, 2001.

See footnote 10. Day billed for time spent on fee petition on March 12 and 12, 2001. Kleve also billed for time spent on fee petition on March 13, 2001.

See footnote 10. Day billed for time spent on fee petition, including time delivering the fee petition to the County, on March 16, 2001.

See footnote 10. Day billed for time for preparing Sprando and O'Donnell affidavits on March 19, 2001. Clark billed for time for preparing his affidavit on March 19, 2001. Other tasks are clerical.

DATE EMPLOYEE TASK HOURS 1/22/99 Kleve Fax draft memo re atty's research and opinions 0.2 to client 5/18/99 Kleve Expedite stop work order and notice in 0.2 support of stop work order to Chandler 7/7/99 Fearing Obtain add'l color photographs fr Kinko's; 1.5 photocopy docs and send to Sprando and McCaulley; photocopy to file; put all docs in new enforcement file 8/12/99 Kleve Photocopy and prepare complaint for filing; 0.5 of the 1.0 expedite copies to client; draft summonses to request; the all defts; draft certificate of accepted first two of four service tasks are clerical 9/24/99 Maiden T/c fr Sprando; coordinate info w/atty 0.2 10/1/99 Kleve Transcribe message from Litwak 0.3 10/12/99 Kleve Draft filing letter to federal court; assemble 0.8 court required copies and expedite; review order from court re: scheduling and docket all pertinent dates 10/13/99 Maiden T/c to Sprando to attempt to schedule status 0.2 conf 10/22/99 Mapolski Photocopy, collate tax forms for 1989-98 1.2 10/25/99 Mapolski Photocopy, collate tax returns and receipts, 1.3 photocopy corporate records 10/26/99 Kleve Draft letter to Litwak re: documents 0.4 of the 1.3 responsive to RFP; assemble all documents and request; 1.3 hours expedite; organize, assemble and index trial for 3 tasks equals notebook re: pltf's production 0.4 per task with the middle task being clerical 11/1/99 Kleve T/c w/client re status of boxed discovery; 0.5 of the 1.6 organize, assemble and index trial notebooks; request; 1.6 hours prep assistance re 11/2/99 R16 conference for 3 tasks equals 0.5 per task with the third task being clerical 11/10/99 Mapolski Create document notebook 0.6 11/11/99 Mapolski Duplicate file documents; create file notebook 1.1 11/19/99 Jennings Receive instructions fr atty; prep letter to 0.9 attys Litwak and Duffy confirming settlement discussions; revise same and fax to attys Litwak and Duffy and to client 11/22/99 Maiden Receive instructions fr atty; t/c to 0.4 [unreadable] Frederick and Sprando to scheduling [unreadable] Board of Directors of the Corporation 11/24/99 Maiden T/c Sprando to confirm board meeting 0.2 12/15/99 Kleve Assemble [unreadable] materials to Chandler 0.3 [unreadable] hearing 1/4/00 Kleve Draft filing letter to US District Court re 0.6 motion for prelim injunc; photocopy all motion for prelim injunc materials; assemble and expedite to all parties 1/11/00 Kleve T/c w/ court clerk re scheduling of motion for 1.1 prelim injunc; receive instructions fr atty; notes re same; assemble RFP and request for admissions; assemble and expedite pleadings; docket response due dates; make court reporter arrangements for 1/27/00 depos 1/12/00 Kleve Draft consent to jurisdiction by a United 0.4 of the 0.8 States Magistrate; assemble and expedite; request; 0.8 hours organize and update trial notebooks for 2 tasks is 0.4 per task; first task is clerical 1/18/00 Kleve T/c w/McCaulley and client re deposition 0.5 scheduling; t/c w/ Duffy re Sprando and McCaulley depos; notes re same 1/19/00 Kleve Assemble and expedite pltf's first set of 0.3 interrogatories; docket due date deadline 1/25/00 Kleve T/c w/ McCaulley re meeting concerning depos 0.2 of county personnel 1/26/00 Kleve Draft letter to Duffy re schedule of deponents 0.6 of the 0.7 for 1/27/00 depos; assemble and expedite; depo request; 0.7 hours prep; t/c w/ Duffy re confirmation of depos for 4 tasks equals time and place 0.2 per task with the first, second, and fourth tasks being clerical 1/27/00 Kleve Depo prep; t/c w/ Duffy re confirmation of 0.9 of the 1.2 depo time; review briefing and hearing hours; 1.2 hours schedule fr court; docket same for 4 tasks equals 0.3 per task; second, third, and fourth tasks are clerical 1/28/00 Kleve T/c w/ court reporter re original exhs; 0.5 of the 1.4 assemble and copy 1/27/00 depos and forward to request; 1.4 hours court reporter; assemble trial notebook of for 3 tasks equals 1/27/00 depo exhibits 0.5 per task; second task is clerical 1/31/00 Kleve T/c w/ McCaulley re depos and depo scheduling; 0.6 of the 0.9 t/c w/ Duffy re 2/4/00 continued depos; t/c w/ request; 0.9 hours court reporter re 2/4/00 depo arrangements; for 4 tasks equals complete organization and assembly of depo 0.2 per task; exhs trial notebook first, second, and third tasks are clerical 2/2/00 Kleve T/c w/ Duffy re 2/4/00 depo rescheduling; 0.6 notes re same; draft letter to Duffy re continuing w/ 2/4/00 depos; assemble and expedite 2/3/00 Kleve T/c w/ Duffy re Busse and Estrin depos; J 0.4 of the 0.8 McCaulley depo prep request; 0.8 hours with 2 tasks equals 0.4 per task; first task clerical 2/7/00 Kleve Revise memorandum; draft affid re depo 2.0 of the 3.3 transcripts; draft certif of service; finalize request; 3.3 hours memo; draft filing letter to court; assemble with 7 tasks is and mark all exhs; photocopy and assemble all 0.5 per task; for mailing first, second, and fourth tasks are non-clerical 2/8/00 Kleve Organize, assemble and index trial notebook re 0.6 Busse and Muir 2/9/00 Heintz Index McCaulley's files 4.1 2/14/00 Heintz Work on index for McCaulley's files 0.5 2/14/00 Kleve T/c to Duffy and court reporter re changes in 0.4 2/15/00 depo schedule; notes re same; t/c w/ McCaulley re deposition 2/15/00 Heintz Receive instructions re photos, filing, 2.0 documents; file McCaulley depo; arrange for copying of photos for RFP 2/16/00 Heintz Copy docs; bate stamp and catalog docs; prep 4.5 labels; complete index 2/24/00 Jennings Travel to and from TIS for enlargements of 0.5 photograph and plot plan exhs 3/1/00 Jennings T/c to TIS re exh enlargement; receipt and 0.1 delivery of same 3/10/00 Kleve Assembly of exhs to resp to prehearing brief; 2.0 of the 2.4 t/c w/ Duffy re depo scheduling; draft letter request; 2.4 hours to court re filing of response; finalize with 5 tasks is response; assemble and expedite 0.5 per task; fourth task non-clerical 3/14/00 Heintz Work on index for McCaulley's files 0.5 3/15/00 Heintz Receive instructions re photos, filing, 2.0 documents; file McCaulley depo; arrange for copying of photos for RFP 3/17/00 Kleve T/c w/ DOJ and Duffy re: S. Purchase and crew 0.3 of the 0.8 depos; notes re same; review court order request; 0.8 extending case deadlines and docket same hours with 3 tasks is 0.3 per task. Last task is clerical 3/21/00 Kleve Organize, assembly and indexing of trial 0.2 of the 2.1 notebooks; t/c w/G. Howard re meeting request; I assume scheduling the phone call was only 0.2 hours and I deduct that amount as clerical 3/22/00 Kleve Trial notebook org; prep pleadings notebook 1.8 index 3/29/00 Kleve Transcribe message fr Duffy re filing of 0.3 amended answer 4/17/00 Kleve T/c w/ court re status of motions; notes re 1.3 of 1.9 same; prepare amended complaint (adding request; 1.9 hours allegation of violations of civil rights) with 3 tasks is 0.6 per task; only last task is non-clerical 4/18/00 Kleve Assemble and expedite Judge's opinion and 0.4 order re preliminary injunction to client and Chandler; conf w/atty re certified copies of writ 4/21/00 Kleve Finalize letter to Duffy re request for list 0.5 of any outstanding conditions; t/c w/ DOJ re status of records duplication 4/21/00 Kleve T/c w/production company re copying docs 0.9 responsive to DOJ subpoena; conference w/atty re same; t/c w/ Ramis's office re land use meeting; t/c w/ client re land use meeting and board meeting; t/c w/ client re dirt 4/24/00 Kleve Receive instructions fr atty; t/c w/ DOJ re 0.9 of the 1.3 responsive docs; t/c w/ Ramis re meeting; request; 1.3 revise First Amended Complaint hours for 4 tasks is 0.3 per task; only last task is non-clerical 4/28/00 Kleve T/c w/ DOJ and Duffy re rescheduled D.L. 0.8 depos; draft confirmation letter re depos; assemble and expedite; docket depos and make court reporter arrangements 5/4/00 Kleve Assemble and expedite letter from Duffy re 0.2 remaining violations to client and Ramis 5/11/00 Kleve Transcribe message fr Judge Hubel's office re 0.4 order on SWO3; t/c w/ client re same 5/15/00 Kleve Review court's notice on extension of all 0.3 case-related deadlines; docket all new deadlines on all calendars; t/c w/ court re conference call on pltf's First Amended Complaint 5/18/00 Kleve Assemble trial notebooks re Muir and Estrin 0.7 depo transcripts; finalize fee letter to clients and expedite 5/19/00 Kleve Prepare letter to Ferrari re invoice for time 0.4 and docs responsive to subpoena; assemble and expedite letter 5/22/00 Kleve Trial notebook assembly re Busse depo 0.6 of the 0.8 transcript, Vol II; prep letter to Judge Hubel request; 0.8 hours re briefing schedule on writ of review; for 3 tasks is 0.3 assemble and expedite letter per task; first and third tasks are clerical 5/25/00 Kleve T/c w/client re case status Qs; notes re same; 0.5 review letter fr Duffy re scheduling dates on writ of review and docket same 5/30/00 Mapolski Confirm depos w/Duffy 0.2 5/31/00 Kleve Depo prep assistance; t/c to Duffy and Ferarri 0.2 of the 0.4 re confirmation of depos request; 0.4 hours for 2 tasks is 0.2 per task; second task is clerical 5/31/00 Kleve Draft letter to Duffy re writ of review 0.3 briefing schedule; assemble and expedite 6/21/00 Kleve Comprehensive file org and assembly 1.5 6/30/00 Kleve Draft letter to Judge Hubel re brief on writ 0.4 of review; assemble and expedite 7/17/00 Kleve Draft letter to client re Schwabe bill; 0.3 assemble enclosures and expedite 7/18/00 Kleve T/c w/ Delacy, Chandler, and client re meeting 0.4 scheduling 7/24/00 Kleve Revise response to request for production and 1.0 of the 2.0 prepare for service; trial notebook request; 2.0 hours organization and assembly for 2 tasks is 1.0 per task; first task is clerical 7/25/00 Roggendorf Compiled and copied pleading and Multnomah 1.6 County ordinance for Chandler; drove material to Vancouver 8/1/00 Kleve Chandler depo notebook assembly 0.3 8/4/00 Kleve T/c w/court re response to summary judgment 0.3 due date; notes re same 8/6/00 Kleve File organization and trial notebook 0.5 assembly 8/14/00 Roggendorf Copied discovery docs for RFP; organized 0.9 docs 8/22/00 Kleve File organization; assemble trial notebook re 2.0 all summary judgment materials; assemble Chandler affid; draft filing letter to court re Chandler affid and expedite all to all parties; t/c w/ Johnson re meeting to discuss factual testimony; draft memorandum of t/c 8/23/00 Kleve File organization return originals to file fr 1.2 motion in opp to summary judgment; t/c w/ Leverton 8/24/00 Kleve T/c w/ Duffy re memo in opp to partial 1.8 summary judgment; conf w/ Clark re same; assemble and make delivery arrangements to re-serve Duffy w/docs; file organization, assembly and indexing; review docket notice fr court and docket new extension dates 8/28/00 Kleve Draft instructions fr Clark to law clerk re 0.7 prep of reply to motion to quash; t/c w/ Johnson and Leverton re meeting scheduling; notes re same 8/29/00 Kleve T/c fr Hubel's office re setover of summary 0.2 judgment hearing; notes re same 8/31/00 Kleve T/c w/Duffy's office re setover of summary 0.2 judgment hearing 9/8/00 Kleve Transcribe message fr client re new Metro work 1.0 at Sauvie's Island Bridge; t/c w/client re photographs of Metro's work; research to confirm pretrial order lodging date; t/c w/Duffy re rescheduling of summary judgment motion hearing 9/11/00 Kleve Prepare letter to Roberts re Burlington Water 0.4 of the 0.7 District claim; assemble and expedite; t/c request; 0.7 hours w/Hubel's office re rescheduling of summary for 4 tasks is 0.2 judgment hearing; notes re same per task; last two tasks are clerical 9/19/00 Kleve T/c w/ Duffy and client re meeting 0.3 9/22/00 Kleve Review scheduling notice fr court; docket and 0.5 calendar all response due date, pretrial and trial dates 9/25/00 Kleve T/c w/court re hearing date; change and docket 0.4 same 10/4/00 Weber Organize maps responsive to deft's RFP; send 1.3 out for copies, assemble and expedite to S. Duffy 10/10/00 Kleve T/c w/ court re status of pltf's production 0.3 and defts' motion to compel 10/11/00 Weber Arrange for photocopies to be made for opp 0.2 counsel 10/19/00 Weber Organize and file docs 0.6 10/23/00 Weber Assemble and expedite letters to Duffy 0.5 10/26/00 Kleve Notarize all affids re supp'l motion; conf w/ 0.4 legal assistant re federal court filings 10/26/00 Weber Assemble and label exhs included in motion to 1.0 court; assemble and expedite to all parties 10/27/00 Kleve Revise letter to Duffy re four foot overfill; 0.4 of the 0.7 assemble and expedite; file/trial notebook request; 0.7 hours organization with 3 tasks is 0.2 per task; first two tasks are clerical 10/31/00 Weber Organize and assemble docs for notebooks; 1.1 of the 2.2 review court docs and docket all pertinent request; 2.2 hours dates with 2 tasks is 1.1 per task; second task is clerical 11/10/00 Weber Arrange for photocopies of Multnomah County 0.3 Code to be processed 11/16/00 Weber Review docs fr court; docket all pertinent 0.3 dates 11/20/00 Weber Review court docs; docket all pertinent dates; 1.1 receive instructions fr atty; contact OIA re info on Measure 7; draft letter to client re invoice; assemble and expedite; assemble and expedite letter to Roberts 11/29/00 Weber Research client files for copy of appraisal; 1.2 of the 1.5 prep letter to court re motion; assemble and request; 1.5 hours expedite motion to court; draft letter to with 5 tasks is Duffy re docs responsive to 2nd RFP; assemble 0.3 per task; and expedite same fourth task is non-clerical 11/30/00 Weber Assemble and expedite letter to Roberts 0.3 12/1/00 Weber Transcribe tape re board meeting Nov. 30, 2000 0.6 12/7/00 Weber Prepare letter to witnesses; assemble and 0.8 expedite letter to Duffy re GEC permit 12/12/00 Kleve T/c w/ Hadly of Duffy's office re request for 0.3 copy of 7/6/00 letter to Duffy; assemble and expedite 12/15/00 Kleve Prep letter to Duffy re Leverton; assemble and 0.8 expedite; t/c w/Ramis re trial prep meeting; calendar same; t/c w/court re status of order on extension for disclosure of experts 12/19/00 Kleve T/c w/ Duffy re status of discovery extension 0.2 12/20/00 Weber Travel to county office to retrieve docs 0.7 12/22/00 Weber Receive instructions fr atty; prepare letter 0.8 to K. Bartholomew; assemble and expedite 12/26/00 Kleve Receive instructions fr atty re new filing 0.2 deadlines 12/27/00 Weber Docket dates re trial; receive instructions fr 0.7 atty; assemble and expedite letter to Duffy 1/2/01 Weber Review docs rec'd fro court; docket all 0.4 pertinent dates 1/3/01 Kleve Make service arrangements re sua sponte 0.2 summary judgment docs 1/3/01 Weber Research docs rec'd fr court; assemble and 1.9 expedite docs to court; receive instructions fr atty; t/c to Duffy's office re trial management order; assemble photographs to be photo copied; prepare photo copies 1/4/01 Kleve Conf w/ atty and legal assistant re assembly 0.4 and prep of trial exhs 1/4/01 Weber Prepare photocopies for meeting w/ expert 1.7 witness; review notice rec'd fr court re trial prep; consult w/attys re trial exh prep 1/5/01 Kleve Research re federal court practice and trial 2.4 exhs; conf w/legal asst re trial exhs; prep trial exh labels; draft letter to Duffy re proposed pretrial order; assemble and expedite; make delivery arrangements re proposed pretrial order; trial prep meeting a atty 1/9/01 Kleve Assist w/assemble and expediting trial exhs 0.8 and expert witness pleadings 1/10/01 Kleve Conf w/ legal asst and atty re filing of trial 0.3 exhs w/court 1/10/01 Weber Assist atty w/ prep of letter to Howard and 1.6 of the 1.8 Hedrick re testimony; assemble and expedite; request; 1.8 hours prep letter to court re response due; assemble for 5 tasks is 0.4 and expedite docs to court; prepare trial per task; first notebooks four tasks are clerical 1/11/01 Kleve T/c w/ court re trial exhs; conf w/ legal asst 0.8 re same; receive instructions fr atty; t/c w/ Duffy re scheduling conf to discuss issues re proposed pretrial order; draft letter to Duffy re same; assemble and expedite 1/11/01 Weber Prepare letter to Hlebechak; assemble and 1.6 of the 2.2 expedite; prep of trial exhs; file request; 2.2 hours organization, prep certificate of service for for 5 tasks is 0.4 ct docs; assemble and expedite per task; first, second, fourth, and fifth tasks are clerical 1/12/01 Weber Consult w/ atty re depos; assist atty w/ prep 2.5 and delivery of pretrial order; prep letters to court re pretrial order and motion for continuance 1/15/01 Weber Prep affid of Clark; expedite to Duffy's 1.0 office; conf w/ atty re trial prep 1/16/01 Weber Prep letter to court; assemble and expedite 0.7 doc to court 1/17/01 Weber Assist atty w/trial prep; prep letters to 1.8 of the 2.2 court re filings; assemble and deliver to request courthouse 1/19/01 Weber Assist atty w/prep of jury instructions to be 1.0 filed in court 1/22/01 Weber Assist atty w/prep of jury instructions; 1.5 assemble and expedite 1/24/01 Weber Prepare letter to court re filing of docs; 0.7 assemble and expedite same 1/25/01 Kleve Assemble, mark, and photocopy exhs to letter 1.0 to Judge Hubel; assemble and expedite; make service arrangements; t/c w/court re possible hearing to discuss recent disputes; notes re same 1/25/01 Weber Prep US District Court subpoenas 1.5 1/25/01 Weber Assemble and expedite letter to Duffy re 0.5 permit application 1/29/01 Kleve Prep letter to Duffy re sanctions and 1.2 settlement; assemble and expedite 1/30/01 Weber T/c to Rose City re delivery of docs to opp 0.3 counsel 1/31/01 Weber Receive instructions fr atty; t/c to Judge's 0.7 office re AV equipment available for trial 2/1/01 Kleve File organization; receive instructions fr 1.3 of the 1.8 atty; redraft pltf's proposed verdict form; request; 1.8 hours prep and format verdict form disk for filing with 7 tasks is — w/court; make service arrangements; prep 0.25 per task; letter to Judge Hubel re status of outstanding third and sixth issues; assemble and expedite tasks not clerical 2/1/01 Weber Receive instructions fr atty; assemble and 1.1; allow 0.4 for expedite docs to Chandler; prep letters to preparing letter court; assemble and expedite docs to court and to court (see opposing Weber entry for January 17, 2001); rest is clerical 2/2/01 Kleve Prep letter to Judge Hubel re request for his 0.7; it appears assistance re settlement discussions; assemble Clark prepared the and expedite letter and billed for his preparation time 2/5/01 Weber Assist atty w/ trial prep; prep of subpoenas; 1.6 of the 2.5 t/c to witnesses request; 2.5 hours for 3 tasks is 0.8 per task; first two tasks are clerical 2/7/01 Kleve Receive instructions fr atty; conf w/legal 0.4 of the 0.8 asst re call down of all witnesses; t/c request; first two w/witnesses re settlement tasks are viewed as single task; 0.8 hours for 2 tasks is 0.4 per task; last task is non-clerical 2/13/01 Weber Prepare, assemble, and expedite letter to 0.5 Ferrari re outstanding fees 2/14/01 Kleve T/c w/ Judge Hubel's office re telephone 0.4 conference 2/14/01 Weber Assist atty w/prep of settlement doc; assemble 1.6 and expedite to Itkin 2/15/01 Kleve T/c w/ court re renewed change by Judge Hubel 0.2 of time for conference 2/19/01 Weber Receive instructions fr atty; prepare letter 1.1 to Duffy re settlement agreement; assemble and expedite to all parties 2/21/01 Kleve T/c w/court re disposition of trial exhs not 0.2 used 2/22/01 Weber Review doc rec'd fr court; docket all 0.3 pertinent dates 2/23/01 Kleve Make arrangements to pick up exhs fr 0.2 courthouse 2/23/01 Weber Assemble and expedite letter to Tokos; assist 0.8 atty w/preparation of docs 2/26/01 Weber Receive instructions fr atty; review file and 1.8 prepare docs to forward to atty Willis for review; arrange deliver of docs 2/28/01 Weber Prepare letters to Duffy and Tokos re 1.2 settlement; make revisions 3/1/01 Weber Receive instructions fr atty; prepare letter 0.8; reasonable to to Willis re expert testimony; assemble docs view first two re letter; assemble and expedite letter to tasks as one task; Duffy re settlement 1.2 hours for 3 tasks is 0.4 per task; second task of assembling docs is clerical; last task is not compensable because Day billed for preparing letter to County (see footnote 10) 3/2/01 Weber Assemble and expedite letters and docs to 0.5 Tokos 3/5/01 Weber Prepare letter to Muir re settlement 1.1 implementation; assemble and expedite to all parties w/attachments 3/6/01 Weber Expedite letter to Lowe 0.2 3/7/01 Weber Prepare letter to Duffy re atty fee petition; 0.6 assemble and expedite to all parties 3/8/01 Weber Prep letter to Muir and Tokos re settlement 1.0 implementation 3/9/01 Weber Update trial notebooks and file organization 1.6; also — unclear why time being billed for updating trial notebook when settlement achieved previous month 3/12/01 Weber Receive instructions fr atty; organization of 0.7 trial notebooks 3/13/01 Weber Assist atty w/prep of fee petition 3.3 3/15/01 Weber Assemble docs re fee petition; assemble and 3.2 expedite to Neal; preparation of affid of Clark; retrieve docket from court; prepare affid of Hinkle; expedite affid and docket to Neal, Willis, and Hinkle 3/16/01 Weber Prep docs for atty re fee petition; prep 1.6 letter to Duffy re fee petition; deliver fee petition docs to Duffy; retrieve affid fr Neal 3/19/01 Weber Prep affid of Sprando; prep affid of 7.0 O'Donnell; prep affid of Clark; review records for letter to Duffy re settlement; arrange for delivery of affid from Hinkle; meet w/ client re affid; prepare court docs re fee petition; assemble fee petition; deliver docs to courthouse and opp counsel 3/20/01 Weber Arrange for delivery of docs to Neal; prep 0.9 letter to Duffy re extension for response to fee petition; assemble and expedite 3/21/01 Weber Assist atty w/prep of notes fr meeting 0.4 w/county officials 3/22/01 Weber Prep letter to Duffy re permits; assemble and 1.0 expedite; assemble and expedite letter to Tokos re meeting 3/23/01 Weber Review docs received fr opposing; docket 0.4 response due dates 3/26/01 Weber Receive instructions fr atty; t/c to Judge 0.8 Hubel re settlement conf; prep letter to Judge Hubel re same 3/27/01 Kleve T/c w/ US District Court Clerk re 4/3/01 0.3 hearings; conf w/atty re same 3/27/01 Weber Prep dos for court re settlement agreement; 0.8 assemble and expedite 3/28/01 Kleve Receive instructions fr atty; t/c w/ court re 0.3 combining all motion to be heard 4/2/01 3/28/01 Weber Assemble and expedite docs to courthouse 0.4 H. Land Use, Building, or DSL Permits

Plaintiffs seek compensation for time spent on various land use, building, or Division of State Land permits. I disallow such time because it was not reasonably expended in pursuit of this litigation. Thus, the following entries are disallowed:

Hours previously disallowed are not listed here.

DATE ATTORNEY TASK HOURS 2/10/99 Clark Conference w/McCaulley re 0.8 SAL lease and Multnomah County 6/21/99 Kleve Prepare letter to D.L. re: 0.8 representation and status request of applications and permits; prepare letter to Environmental Services re representation and stop work order; expedite all letters 7/6/99 Kleve Prepare letter to county 0.3 of counsel re: response date the 1.2 for stop work appeal; request; prepare letter to Warner re 1.2 temporary license and hours dredging permit; letter to for 4 Estrin re request for tasks is response to 6/21/99 letter; 0.3 per finalize all letters; task; assemble enclosures and second expedite to all task is land use 8/13/99 Clark Review of new matter re 0.5 dumping on upper lot; t/c to client re same 9/1/99 Clark Tel call to D.L. re: removal 0.2 of structures 9/3/99 Clark Review D.L. letter and t/c 0.3 to Chandler 9/3/99 Kleve T/c w/Chandler re: D.L. 0.2 Letter 9/7/99 Clark T/c to Sprando re: D.L. 0.5 letter and to McCaulley 9/8/99 O'Donnell Review D.L. permit denial 0.3 10/27/99 Clark Conf w/law clerk on the DSL 0.2 11/11/99 Clark Conf w/law clerk 0.3 [unreadable] Cascade rulings from Court of Appeals yesterday; t/c to OA re fines pending mtg on Tuesday 2/9/00 Day T/c w/ client re tenant's 0.3 permit application w/ county 8/2/00 Clark YTC Chandler on LUBA matter 0.4; and docket summary judgment first response task is a land use matter and second task is clerical 8/3/00 Chandler Review and analyze motion to 2.1 dismiss LUBA appeal 8/9/00 Chandler Review county brief 2.2 8/16/00 Chandler Draft response to motion to 5.0 dismiss LUBA case 8/16/00 Stamp Call from Chandler; research 0.6 cases for Chandler; instructions to legal asst re sending docs to Chandler in Vancouver 8/24/00 Day Draft letter to Duffy re 2.0 permit apps and county's erroneous belief client still in viol of county code 8/30/00 Chandler Draft motion to strike 3.5 county reply brief 8/31/00 Chandler Draft motion to strike 2.0 county reply brief I. Oregon Liquor Control Commission Permit Renewal

Plaintiff seeks compensation for time spent on its renewal of its liquor license. I disallow this time because it was not reasonably expended in pursuit of this litigation. Thus, I disallow the following hours:

Hours previously disallowed are not listed here.

DATE ATTORNEY TASK HOURS 11/30/99 Day T/c w/client re liquor 0.3 license 12/1/99 Clark T/c to Sprando and county re 0.4 liquor license 12/2/99 Clark Conf w/Sprando re: OLCC 0.2 license 12/13/99 Kleve Receive instructions fr atty; 2.4; all organize, assemble and tasks [unreadable] notebooks re appear research [unreadable] related correspondence; prepare to OLCC letter to Duffy re: OLCC so all license renewal time recommendation; research re: deducted addresses and fax numbers for OLCC letter; finalize and expedite letter 12/23/99 Day Conversation [unreadable] re 0.3 county's letter to the OLCC J. Tasks Not Fully Identified

Occasionally, plaintiff's billing entries fail to fully identify the subject of the work performed. Since it is plaintiff's burden to demonstrate that the compensation it seeks was for hours reasonably related to the litigation, such failure results in the disallowance of any hours for which the task is unclear. Thus, I disallow the following hours:

Hours previously disallowed are not listed here.

This entry appears twice.

DATE ATTORNEY TASK HOURS 1/13/99 Kleve Revise memorandum re 2.5 research on questions presented 6/1/99 Clark Two telephone conferences 0.2 w/client 7/2/99 O'Donnell Factual and legal analysis 0.4 9/2/99 Clark T/c to client 0.2 9/28/99 Clark Conf w/ Sprando, McCaulley, 1.5 Chandler, and Day 11/5/99 Clark T/c to Seth Tane, Chandler, 1.5 and Sprando; conf w/ Sprando and Greg 11/19/99 Clark T/c to Chandler and Sprando; 1.0 letter to county 2/7/00 Heintz Receive instructions fr atty 0.3 2/14/00 Clark Conf w/ law clerk 0.5 2/28/00 Winters Conf w/ Clark, Day 1.2 4/3/00 Clark Conf GCE; follow up w/Day 1.5 4/5/00 Day T/c w/ client 0.5 4/14/00 Kellington Meet w/ Clark to go over 1.7 case issue; conf w/ Chandler re same 4/20/00 Clark Conf w/ client and t/c w/ 2.0 DOJ 4/28/00 Clark Conf Gillion Ellis 0.8 5/4/00 Day Draft letter to Duffy; 1.5 conversation w/client 5/12/00 Winters Conf w/Clark; conf call w/ 1.3 Clark and Sprando; contact w/Sprando 5/18/00 Clark T/c to Sprando 0.2 5/22/00 Roggendorf Piercing corp val/alter ego 2.0 5/22/00 Roggendorf Drafting 3.0 6/13/00 Paxton [Entry is blank] 1.5 7/19/00 Kleve T/c w/ Delacy 0.2 7/25/00 Roggendorf Receive instructions fr atty 0.2 8/3/00 Roggendorf Receive instructions fr atty 0.1 9/26/00 Clark MTC 0.5 11/20/00 Day [Entry is blank] 7.9 12/11/00 Mapolski Receive atty instruction; 0.3 assist in prep of correspondence 12/11/00 Bowlby Receive instructions fr 0.5 atty; prepare letters 2/28/01 O'Donnell Outline, draft and dictate 0.8 letter; instructions to legal asst K. Response to Court's Sua Sponte Motion Regarding GEC Permit Claims

In the December 21, 2000 Opinion resolving the outstanding summary judgment motions and defendants' motion to dismiss, I indicated that I would grant summary judgment to defendants, sua sponte, on plaintiff's second and third claims for relief — the declaratory and injunctive relief claims regarding the GEC permit conditions ("the GEC claims"). I gave the parties the opportunity to brief the intended summary judgment on those claims and plaintiff now seeks attorney's fees for the time it spent on this task.

I disallow plaintiff's time spent on its response to the proposed sua sponte summary judgment. First, neither of the claims were brought under section 1983 and thus, section 1988 attorney's fees are not properly awardable for time spent on those claims. Second, neither of those claims were sufficiently related to the meritorious section 1983 claims, making any award of fees for time spent on them inappropriate. Thus, I disallow the following hours:

Hours previously disallowed are not listed here.

DATE ATTY TASK HOURS 12/29/00 Day Draft supp'l memo in opp to 2.6 court's sua sponte motion 12/30/00 Clark Work on sua sponte sj memo 1.5 1/3/01 Clark Conf w/ Day re exhibits 0.5 of list; review and edit memo the 2.0 on sua sponte summary request; judgment; Cv w/soils expert; 2.0 continue work on first wave hours of trial docs for 4 tasks is 0.5 per task; second task is disallowed L. Second Amended Complaint

On October 16, 2000, plaintiff moved to file a Second Amended Complaint which added counts to its GEC claims. The new counts were based on allegations that the County had refused to process permits for plaintiff regardless of whether the permit sought was related to an outstanding land use code violation. Plaintiff argued that the County's actions violated plaintiff's substantive due process rights. As part of the December 21, 2001 Opinion, I denied the motion to amend.

For the reasons previously explained, awarding fees for time spent on the GEC claims is inappropriate. Accordingly, any time spent on the motion to amend those claims is also inappropriate, especially when the proposed amendments are not related to the successful section 1983 claims. Thus, I disallow the following hours:

Hours previously disallowed are not listed here.

DATE ATTORNEY TASK HOURS 10/12/00 Day Complete motion to amend complaint; draft 0.8 of the 2.5 memo of supp authorities; conversation w/ request; 2.5 hours for client 3 tasks is 0.8 per task; first task is disallowed 10/13/00 Day Complete motion to amend complaint 1.2 10/13/00 Weber Research and resolve dispute re bill fr 1.0; without further Gross; draft letter re Johnson invoice; information, first two assemble and expedite; draft letter to tasks appear to bear court re motion to amend complaint; no relation to the assemble and expedite to all parties litigation; last three tasks relate to second amended complaint and are clerical 11/6/00 Clark Work on reply on motion to amend; work on 1.0 of the 2.0 reopening the record; conf w/Day re request; 2.0 hours for Willowbrook and applicability; t/c to 4 tasks is 0.5 per Duffy task; first and second tasks are disallowed as related to second amended complaint 11/7/00 Kleve Conf w/ Clark re reply to motion for 0.3 leave to file 2nd Amended Complaint; docket same 11/7/00 Weber Prepare Clark affid re motion to file 0.7 amended complaint 11/9/00 Day Draft reply to county's response to our 7.1 motion to amend 11/10/00 Day Make final edits and revisions to reply 2.3 to county's response to our motion M. Division of State Lands Discovery Request

During discovery, plaintiff served the Division of State Lands (a non-party hereinafter referred to as "DSL"), with a subpoena seeking documents related to marine consultant Jay McCaulley. Because the requested documents were likely to be quite voluminous, Assistant Attorney General Charles Ferrari and plaintiff's counsel attempted to negotiate a reasonable method of production. Due to a miscommunication between the parties, the DSL proceeded with copying the documents responsive to the request, even though negotiations for limiting the production were in progress. The DSL incurred costs of over $5,000. Plaintiff refused to pay. This resulted in the DSL filing a motion in this court seeking an order requiring plaintiff to pay the cost of production. Plaintiff and the DSL ended up resolving the dispute.

Now, however, plaintiff seeks compensation from defendants for the time spent on the subpoena and on its payment dispute with the DSL. While the initial drafting of the subpoena may have been related to the litigation, the resulting time spent reviewing the records and litigating the cost of production was caused by plaintiff's overbroad document request. As a result, such time was not reasonably spent in furtherance of this litigation and thus, it is disallowed. Accordingly, I disallow the following hours:

Hours previously disallowed are not listed here.

DATE ATTORNEY TASK HOURS 4/19/00 Kleve Docket due date re 3rd RFP; t/c w/ Ferrari 0.3 of the 1.5 of the DOJ re subpoena; t/c w/ court re request; 1.5 hours certified copies of writ of review; notes for 5 tasks is 0.3 re same; prepare writs of review for per task; second task service upon 13 parties is disallowed 4/27/00 Day Go to Department of Justice and review the 7.0 records the DSL has on our client, Cherie Sprando and Jay McCaulley 6/7/00 Paxton Prepared legal memo re the issue of what a 1.25 non-party gets to charge for a subpoena of docs under the Federal Rules of Civil Procedure 6/8/00 Clark Work on cost issue for DSL subpoena; t/c 0.3 of the 0.5 to Tim Ramis request; 0.5 hours for 2 tasks is 0.3 per task; first task is disallowed 6/8/00 Paxton Prepared first draft of letter to 1.25 assistant atty general re copying costs; conf w/ atty re letter 6/9/00 Paxton Redrafted letter for assistant atty 1.0 general per attys revisions 6/13/00 Paxton Reviewed second letter from asst atty 1.5 general referring to other case law; prepared letter in response and researched case law 6/14/00 Paxton Redraft letter; conf w/ atty; sent letter 0.5 to Ferrari 10/30/00 Day Draft response letter to Charles Ferrari 1.0 of the 1.9 re reimbursement for production of DSL request; 1.9 hours docs; review response fr county re raising for 2 tasks is 1.0 of main parking lot per task; first task is disallowed 11/10/00 Kleve Draft letter to C. Ferrari re receipt of 0.3 his 11/9/00 letter; assemble and expedite to all parties 11/27/00 Day Review, research, and draft response to 3.5 DOJ's motion for reimbursement 11/28/00 Clark Review response to DSL motion for third 0.5 party relief 11/28/00 Kleve Receive instructions fr atty re affid in 0.8 response to C. Ferrari motion; research re same; begin draft work on affid of R. Kleve 11/29/00 Clark Work on response to state's request for 1.0 $$$ 11/29/00 Kleve Draft affid of R. Kleve; revise and 1.3 finalize all pleadings in response to motion of Charles Ferrari N. Miscellaneous

The following hours are disallowed for the stated reasons:

DATE ATTORNEY TASK HOURS REASON 10/5/98 Maiden Receipt of 1998 0.4 Unrelated to annual report litigation from the state of Oregon; preparation of renewal; paralegal services re same 9/29/99 Day Draft letter to 0.5 of Unrelated to Jeff Litwak re the 1.0 litigation scheduled 9/30 request; site visit; t/c 1.0 w/client re hours Willamette Week for 2 article tasks is 0.5 per task; second task is disallowed 6/01/99 Clark Two t/c w/client 0.2 Duplicate of previous entry 2/13/01 Day Settlement 2.7 Duplicate of implementation — previous review county entry code and GEC permits in prep for meeting w/county 2/13/01 Day Settlement 2.7 Duplicate of implementation — previous review county entry code and GEC permits in prep for meeting w/county 2/13/01 Day Settlement 2.7 Duplicate of implementation — previous review county entry code and GEC permits in prep for meeting w/county O. Anticipated Staff Time for Fee Petition Defense

In the Supplemental Affidavit of Ross Day Regarding Fees Incurred During Implementation of Settlement Agreement and Preparation of Fee Petition, plaintiff seeks compensation for 100 hours of "Anticipated Staff Time" to be incurred in defense of the fee petition, at an averaged rate of $120 per hour.

While plaintiff certainly is entitled to fees for time spent on the fee petition, McGrath, 67 F.3d at 253, it must request fees for time actually incurred, not what it anticipates may occur in the future. To that end, plaintiffs seeking fees for anticipated, but not yet incurred time spent in defense of a fee petition usually file a supplemental fee petition seeking compensation for any hours incurred in defense of the fee petition following plaintiff's previous submission. Such supplemental fee petitions do not frequently occur in this court because the local rules of this district prohibit plaintiffs from filing a reply brief in support of a fee petition and ordinarily, oral argument is not held. L.R. 54.4.

However, it has occurred here because of my initial concerns which prompted me to hold oral argument and to give both parties the opportunity to submit written responses. If, however, plaintiff has any post-petition hours it has since spent in defense of the fee petition, and which are consistent with the rulings made herein, plaintiff may file a supplemental petition.

P. Settlement Implementation

Plaintiff seeks compensation for hours spent implementing the settlement agreement. I conclude that time spent implementing the settlement agreement is reasonably expended on the litigation and is compensable, provided it does not run afoul of the other disallowed categories. See Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993) (time spent monitoring compliance with orders regarding prison conditions); Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992) (time spent defending settlement from class challenges compensable); Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987) (approving of fees incurred post-judgment for time spent monitoring compliance with a consent decree).

In Stewart, the court noted that section 1988 allows attorney's fees for certain post-judgment proceedings. Stewart, 987 F.2d at 1452. The court explained that "[c]ompensable work on post-judgment proceedings must be `useful' and of a type `ordinarily necessary' to secure the litigation's final result." Id. (quoting Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 561 (1986)).

Stewart concerned an award of attorney's fees for time spent monitoring prison conditions for compliance with the court's orders in earlier litigation. Grant allowed attorney's fees for time spent defending a putative settlement from challenges from the plaintiff class. Keith allowed post-judgment fees for time spent monitoring compliance with a consent decree. Although the nature of the time spent here is not identical to any of the situations in those three cases, it is analogous in that the settlement achieved here was not simply monetary. Rather, it required the County to commit to certain actions. The time spent by plaintiff "monitoring" the County's actions in adhering to the settlement terms should be compensable under the rationale expressed in Stewart and the other cited cases.

Q. Hinkle and Willis Fees

In a supplemental affidavit, plaintiff seeks compensation for 1.0 hour by attorney Donald Joe Willis and 2.3 hours by attorney Charlie Hinkle. Plaintiff consulted with both of these attorneys in preparing the fee petition and Hinkle submitted an affidavit in support of the petition. As Willis never submitted an affidavit, I cannot conclude that his services were reasonably necessary. The requested 1.0 hour for his time is disallowed. The time sought by Hinkle is reasonable. Hinkle's hourly rate is discussed below.

III. Reasonable Hourly Rates

A. Standards for Determining Reasonable Hourly Rate

In determining the reasonable hourly rate, the court must look at the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). In a few award under section 1988, the reasonable hourly rate is properly determined by the prevailing market rate in the forum in which the district court sits. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The court determines what a lawyer of comparable skill, experience, and reputation could command in the relevant community. Blum, 465 U.S. at 895 n. 11; see also Robins v. Scholastic Book Fairs, 928 F. Supp. 1027, 1333 (D.Or. 1996) ("In setting a reasonable billing rate, the court must consider the `prevailing market rates in the relevant community' and determine what a lawyer of comparable skill, experience, and reputation could command in the relevant community."). The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation. Jordan, 815 F.2d at 1263.

B. Requested Rates

Plaintiff requests the following hourly rates:

ATTY/PARALEGAL/CLERK YEAR HOURLY RATE

O'Donnell — 1998 $165 Attorney

O'Donnell — 1999-2001 $225 Attorney

Clark — 1998 $165 Attorney

Clark — 1999-2001 $225 Attorney

Chandler — 1998 $165 Attorney

Chandler — 2000 $200 Attorney

Kellington — 2000 $250 Attorney

Ramis — 2000-2001 $165 Attorney

Day — Law 1998-2000 $80 Clerk

Day — 2000-2001 $125 Associate Attorney

Ellis/Dumas — 1999-2000 $150 Attorney

Winters — 2000 $125 Associate Attorney

Stamp — 1999 $125 Attorney

Stamp — 2000 $140 Attorney

Lowe — Law 1999 $60 Clerk

Lowe — Law 2000 $80 Clerk

Lowe — 2000-2001 $125 Associate Attorney

Krawczuk/ 1999 $95 Roach — Associate Attorney

Krawczuk/ 2000-2001 $125 Roach — Associate Attorney

Roggendorf — 2000 $80 Law Clerk

Paxton — Law 2000 $80 Clerk

Kleve — 1999 $65 Paralegal

Kleve — 2000-2001 $80 Paralegal

Weber — 2000-2001 $60 Secretary

Heintz — Law 2000 $60 Clerk

Fearing — 1998-1999 $60 Paralegal

Beisley — 1998, 2000 $60 Paralegal

Beisley — 2001 $70 Paralegal

Hinkle — 2001 $305 attorney

Exhibit A to Clark's Affidavit identifies Weber as a paralegal. Pltf's Exh. A to Clark Affid. at p. 1. The actual billing statement identifies her as a secretary. Id. at p. 66. The title is not determinative of whether the hours billed are awarded. Rather, as previously explained, I do not award time spent for purely secretarial types but will award time for paralegal-type tasks.

Exhibit A to Clark's Affidavit identifies Heintz as a paralegal. Pltf's Exh. A to Clark's Affid. at p. 1. The actual billing statement identifies her as a law clerk. Id. at p. 66. The discrepancy is immaterial because, as noted above, the time is awarded depending on the task performed.

Defendants specifically challenge the rates of $225 for O'Donnell, $225 for Clark, $200 for Chandler, $250 for Kellington, $80 for Day as a law clerk, and $125 for Day as an associate, as too high. I have considered defendants' arguments and have independently reviewed all of the requested rates for reasonableness and conclude that while some rates are reasonable given the prevailing market rates in Portland, others are excessive.

C. Discussion

1. O'Donnell

From plaintiff's submissions, it is apparent that O'Donnell was a partner at O'Donnell, Ramis, Crew, Corrigan, and Bachrach when Clark worked there. His Oregon State Bar number is 68119. Presumably, given his bar number, O'Donnell has been practicing law for thirty years as of 1998, but there is no evidence in the record to verify that assumption. Clark describes the ORCCB firm as the "preeminent land use, local government, and administrative law firm in the region[.]" Clark Affid. at ¶ 7. Plaintiff provides no other information about O'Donnell's background and experience.

O'Donnell's hourly rate while at ORCCB in 1998 was $165 per hour. Defendants do not object to that fee. I conclude it is reasonable. According to the Oregon State Bar 1998 Economic Survey ("1998 Economic Survey"), the average Portland area billing rate in 1998 for attorneys with 21-30 years of experience was $178/hour and for those with over 30 years experience was $181/hour. O'Donnell's 1998 rate falls below that average.

In January 1999, O'Donnell and Clark left ORCCB to form O'Donnell and Clark. O'Donnell's fee went up to $225/hour at that point. Defendants object to that hourly rate. Plaintiff submits the affidavits of local attorneys Spencer Neal and Charlie Hinkle in support of the requested hourly rates. Neal states that he charges his hourly clients $225/hour and is aware that attorneys who have skills, experience, and a reputation comparable to his and who litigate complex cases in federal court on behalf of claimants, charge fees that range from $225 to $275 per hour. Neal Affid. at ¶¶ 15, 16. He also states that in his opinion, Clark's rate of $225 is reasonable for an attorney with Clark's skill, experience, and reputation who is litigating a case with numerous complex issues of fact and law such as this case. Id. at ¶ 18.

In many of their objections, seen in both their opposition to the original fee petition and in their opposition to the amended fee petition, defendants appear to suggest that since plaintiff failed to submit any evidence in support of the requested hourly rates of several attorneys and support staff, no fees are justified. I disagree. The proper remedy in such cases is for the court to determine the reasonable hourly fee based on the information it has, not reject the entire request. See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1122 (9th Cir. 2000) (proper solution for excessive hourly rate is for district court to reduce rate to "prevailing market rate," not to deny the request entirely).

Hinkle states that he charges $305/hour and that the rate charged for his work is consistent with the prevailing rates for attorneys in Portland. Hinkle Affid. at ¶ 3. He states that he is familiar with Clark and it is his opinion that Clark's rate of $225/hour is a reasonable rate for his services. Id. at ¶ 4.

Clearly, these affidavits do not speak to O'Donnell's qualifications. Even if they did, there is nothing in the record about O'Donnell's background and experience to allow me to compare Neal and Hinkle with O'Donnell to assure that they are of reasonably comparable skill and reputation and that they provide similar services. Thus, their affidavits fail to demonstrate that the requested rate of $225 for O'Donnell is consistent with the prevailing market rate in the local community.

The only evidence available to the court in this regard is the 1998 Economic Survey. Allowing for a certain amount of inflation from 1998 to the present produces a reasonable rate for O'Donnell of $185 per hour for work performed in 1999, $190 per hour for work performed in 2000, and $195 per hour for work performed in 2001.

2. Clark

Clark has been an attorney since 1983. He worked as an associate for five years at Bouneff, Chally, and Marshall which emphasized general civil litigation, personal injury, small business employment defense, family law, and administrative law. Clark Affid. at ¶ 4. He estimates that in those five years, he handled fifteen or twenty cases involving administrative issues, often with due process and constitutional questions. Id.

While there, he began to take an interest in constitutional litigation, representing a series of churches and church schools in litigation on constitutional questions, representing Seattle First National Bank on a successful constitutional challenge to the Oregon tax foreclosure statutes, and representing the David Douglas School District against a constitutional challenge from the American Civil Liberties Union on graduation prayer. Id. at ¶ 5. In 1989, he left private practice to serve in the Oregon Legislature. Id. at ¶ 6. He was a member of the House Judiciary Committee. Id.

In 1993, he returned to the private practice of law, as a sole practitioner until 1998. Id. at ¶ 7. He briefly joined the Clackamas County firm of Buckley LeChavallier, who hired Clark for his expertise in dealing with government agencies. Id. He was there only a short time when he was approached by ORCCB to join them. Id. He states that ORCCB brought Clark in specifically to expand its public sector practice. Id.

In January 1999, O'Donnell and Clark left ORCCB to form the current firm of O'Donnell and Clark. Id. at ¶ 8. Clark's practice emphasizes disputes with all levels of government, civil rights, education law, election law including ballot measures and campaign finance, and constitutional law. Id. He has been a speaker and author on constitutional topics. Id. He estimates that he has litigated against or before at least seventy-five different local, state, and federal agencies, boards, commissions, and other governmental entities. Id. The cases have included formal contested case hearings, contract and tort litigation, section 1983 constitutional claims, rulemaking proceedings, and deliberation before local or state legislative bodies. Id. The subject matter has included land use, environmental, transportation, election, education, telecommunications, church-state, free speech, the mental health and civil commitment system, agriculture, professional licensing matters, Oregon Liquor Control Commission matters, insurance matters, senior and foster care matters, housing agencies, employment department tax disputes, and numerous other areas of disputes between citizens and their governments. Id.

Clark states that he customarily charges between $175 and $225 per hour to the firm's paying clients. Id. at ¶ 10. He charges $175/hour to his commercial clients for employment defense or other defense matters, and either $200 or $225/hour to his commercial or non-commercial clients for most plaintiff cases, and most work involving public sector law. Id.

Clark submits the affidavits of Neal and Hinkle to support his request of $225/hour. Neal has been specializing in section 1983 litigation since 1982, when he first went into private practice. Id. at ¶ 4. He has successfully litigated many section 1983 actions in federal court, both at the district court and appellate levels. Id. at ¶¶ 6-10.

As indicated above, Neal states that he charges his hourly clients $225/hour and is aware that attorneys who have skills, experience, and a reputation comparable to his who litigate complex cases in federal court on behalf of claimants, charge fees that range from $225 to $275 per hour. Neal Affid. at ¶¶ 15, 16.

Neal states that he is generally familiar with the skill, reputation, and experience of Clark. Id. at ¶ 17. He states that although he has not litigated any cases with or against him in the past, he has had consultations with him about civil rights issues. Id. He has reviewed Clark's time records, the court's docket sheet, the First Amended Complaint, the Pretrial Order, the summary judgment memoranda, the summary judgment opinion, the settlement agreement, and a draft of plaintiff's motion for attorney's fees in this case. Id. He states that he has also met with Clark at length about the issues in this case. Id.

Neal also states that in his opinion, Clark's rate of $225 is reasonable for an attorney with his skill, experience, and reputation who is litigating a case with numerous complex issues of fact and law such as this case. Id. at ¶ 18. He additionally states that he has considered the amount of work involved in this case, which included motions to dismiss and for a preliminary injunction in addition to the summary judgment motions. Id. at ¶ 19. He states that the length of the docket demonstrates the amount of work that went into a vigorously litigated case. Id. He states that the time sought by the plaintiff to date is reasonable given the amount of litigation that the case required. Id.

Hinkle is a 1971 law school graduate and has been practicing since that time. Id. at ¶¶ 1, 2. Hinkle joined the predecessor to Stoel Rives in 1971 and has practiced there since, becoming a partner in 1977. Id. at ¶ 2. He specializes in constitutional law and has litigated many constitutional law cases in state and federal courts. Id. He has been the lead attorney in many cases involving section 1983 claims, in both state and federal court. Id.

Hinkle states that he charges $305/hour and that the rate charged for his work is consistent with the prevailing rates for attorneys in Portland. Hinkle Affid. at ¶ 3. He has served with Clark on the Oregon State Bar's Constitutional Law Executive Committee, has litigated against him in at least one constitutional case, and has presented with him at seminars. Id. at ¶ 4. He states that the case at bar is very complex, involving due process, equal protection, political retaliation, and regulatory takings issues. Id. He is familiar with Clark and it is his opinion that Clark's rate of $225/hour is a reasonable rate for his services in this case. Id.

Hinkle reviewed the most recent Complaint, the docket sheet, the summary judgment opinion, a transcript of the settlement agreement, and plaintiff's motion for attorney's fees. Id. at ¶ 5. He also understands that the case involved a motion for preliminary injunction, a writ of review, a motion to dismiss, motion for reconsideration of the motion to dismiss, and other motions. Id. at ¶ 6. He understands that the litigation involved the depositions of at least seven individuals which consumed at least as many business days. Id. He also understands that the settlement was achieved on the eve of trial, after all trial preparation had been completed. Id. He concludes that the hours spent by Clark were reasonable. Id. at ¶ 10.

Defendants argue that the Hinkle and Neal affidavits are insufficient to justify Clark's requested $225/hour rate. First, both Hinkle and Neal have been practicing law a substantial number of years more than Clark. Neal is a recognized section 1983 expert and limits his practice to only those cases. Clark's experience is less focused. Hinkle has been a partner at Portland's largest firm for twenty-four years and is a recognized constitutional law expert. Clark, while having litigated several cases with constitutional law claims, is not attested to as being an expert in either constitutional law or section 1983 litigation.

I agree with defendants that Neal's and Hinkle's experience, expertise, and reputation is distinguishable from Clark's. That does not make them unqualified to express an opinion on the reasonable rate for Clark, but suggests that Clark's rate would be different than theirs.

Clark certainly is an experienced litigator who did a more than able job in this case. He has twelve years less experience than Hinkle (or sixteen years less if Clark's legislative tenure is not considered actually practicing law), and six years less than Neal (or ten years less if Clark's legislative tenure is not considered actually practicing law). Additionally, while he obviously is an experienced constitutional law practitioner, he lacks the specialization of either Neal or Hinkle.

At the beginning of this case, Clark represented plaintiff on an hourly basis until sometime in the spring of 2000, just after the preliminary injunction decision was issued. Clark Affid. at ¶ 5. While with ORCCB, Clark charged plaintiff $165/hour in 1998. Pltf's Exh. A at p. 88. Clark's bills in January 1999, when he and O'Donnell started O'Donnell and Clark, show that he was charging $165/hour to plaintiff at that time. Pltf's Exh. A at p. 4. In August 1999, his fee remained $165/hour. Id. at p. 14. In 2000, his fee was $175/hour. Id. at p. 66. When a plaintiff pays an attorney in private practice on an hourly basis, the hourly rate is clearly relevant in determining the prevailing market rate for the attorney's services. Ohio-Sealy Mattress Manuf. Co. v. Sealy, Inc., 776 F.2d 646, 661 (7th Cir. 1985); see also Blum, 465 U.S. at 895 n. 11 (rates charged in private representations afford relevant comparisons).

As of 1999, Clark had been a bar member for sixteen years with twelve years of actual practice; as of 2000, he had been a bar member for seventeen years with thirteen years of actual practice; and as of 2001, he had been a bar member for eighteen years, with fourteen years of practice. The 1998 Economic Survey indicates that the average billing rate in Portland in 1998 for an attorney admitted to practice for thirteen to fifteen years was $155/hour and for attorneys admitted to practice for sixteen to twenty years was $170/hour. By specialty, the average 1998 billing rate in Portland for civil litigation on behalf of plaintiffs was $145/hour and for real estate/land use was $167/hour.

I agree with defendants that Clark's $225/hour rate for 1999-2001 is not reasonable. First, as discussed above, his qualifications are distinguishable from both Neal and Hinkle. Second, Clark himself charged his client only $175/hour in 2000. Third, the bar survey suggests that in 1998, the average hourly rate for attorneys with similar years of experience was $155 or $170 per hour, depending on whether Clark's years in the legislature are counted. Given an adjustment for inflation and in recognition of Clark's experience in litigating claims against local governments, I conclude that $175/hour for 1999, $180/hour for 2000, and $185/hour in 2001 are reasonable hourly fees.

3. Chandler

Plaintiff submits no information regarding Chandler's experience, skill, or reputation. I can glean from the record that Chandler's bar number is 90153, indicating eight years of experience in 1998, nine years in 1999, and ten years in 2000. I can also glean that he was at ORCCB and then moved to Schwabe, Williamson Wyatt.

Without any evidence, all I know is that Chandler was admitted to the practice of law in Oregon in 1990. I do not know if he practiced elsewhere before that, if he has practiced in Oregon continuously thereafter, or what his specialty is, if any.

Without any information supplied by plaintiff, there is no justification for awarding an hourly rate higher than that suggested by the 1998 Economic Survey. In 1998, the average hourly rate for Portland attorneys with seven to nine years of experience was $141, for those with ten to twelve years of experience, the average hourly rate was $145 per hour. As indicated above, real estate and land use attorneys in Portland commanded $167/hour in 1998. Based on Chandler's experience and his assumed concentration in land use issues, a reasonable hourly rate is $160/hour for 1998, $165/hour for 1999, and $170/hour for 2000.

4. Kellington

As with Chandler, plaintiff provides no information about Kellington's practice, experience, skills, or reputation. She has a 1983 bar number. Based on the undocumented assumption that she has been practicing law since that time, her requested hourly fee of $250 is well above the $170 average hourly rate in the 1998 Economic Survey for Portland attorneys with sixteen to twenty years of experience. Although she has been practicing as long as Clark, without any information as to her background, plaintiff fails to show that anything above $170/hour is a reasonable rate for work performed in 1998. Therefore, adjusting for inflation, plaintiff is awarded $182/hour for Kellington's work in 2000.

5. Day

Plaintiff objects to Day's requested rate of $80/hour for time spent as a law clerk in 1998-2000 and $125/hour for time spent after he became an associate of the O'Donnell and Clark firm sometime in 2000. Since there is no evidence in the record concerning Day's experience, education, or skill, I presume that in 1998 he was a first-year law student, in 1999 he was a second-year law student, and in 2000, he was a third-year law student who then become a first year associate after being admitted to the Oregon State Bar sometime that year. He has a 2000 bar number.

Plaintiff provides no evidence as to the prevailing market rate for law clerks or associate attorneys. The 1998 Economic Survey indicates that the average Portland hourly rate for attorneys with one to three years of experience was $104 in 1998. I conclude that it is unreasonable for a first- or second-year law student to charge only $24/hour less than practicing attorneys, some with three years experience. I also note that for Matthew Lowe, another law clerk, the hourly rate in 1999 was only $60. Thus, for 1999, I conclude that $60/hour is a reasonable hourly fee for law clerks. I conclude that $65/hour is a reasonable hourly fee for a law clerk in 2000.

As for the associate hourly rate, I note that in 1999, plaintiff billed first-year associate Dana Krawczuk/Roach at $95/hour, yet in 2000, plaintiff billed Day, also a first-year associate, at $125/hour. There is no justification for such a jump in rates. Considering the $104 hourly rate from the 1998 Economic Survey, and what plaintiff billed for Krawczuk/Roach in 1999, I conclude that $100/hour is a reasonable hourly rate for Day as a first-year associate in Portland in 2000 and $105/hour is a reasonable hourly rate for the time Day expended in 2001.

6. Ellis/Dumas

Ellis/Dumas has a 1992 bar number and apparently worked as either an associate or contract attorney with O'Donnell and Clark. Plaintiff fails to provide any information regarding her background or experience. The 1998 Economic Survey indicates that the average hourly rate for a Portland attorney with seven to nine years of experience was $141/hour in 1998. Based on that evidence, I conclude that $145/hour in 1999 and $150/hour in 2000 are reasonable hourly rates for Ellis/Dumas.

7. Winters

Winters has a 1998 bar number and was an associate attorney at O'Donnell and Clark in 2000. No other information about him is provided in the record. Thus, he presumably had two years of experience at some point in 2000. As noted above, the 1998 Economic Survey shows that in 1998, the average hourly rate for Portland attorneys with one to three years of experience is $104. Taking this and the law firm charges for Krawczuk/Roach in 1999 into account, and accounting for his two years of experience, a reasonable hourly rate for Winters in 2000 is $110/hour.

8. Stamp

Stamp has a 1997 bar number. Without information to the contrary, I presume that in 1999, he had two years of experience practicing law. Based on the 1998 Economic Survey rate of $104/hour for Portland attorneys with one to three years of experience in 1998, a reasonable hourly rate for Stamp is $110/hour for time expended in 1999 and $115/hour for time expended in 2000.

9. Lowe

In 1999 and 2000, Lowe was a law clerk. For the reasons explained above in connection with Day's hourly rates, I conclude that $60/hour is reasonable for time spent in 1999 and that $65/hour is reasonable for time spent in 2000.

In 2000 and 2001, Lowe was an associate. He has a 2000 bar number. For the reasons explained above in connection with Day's hourly rates, I conclude that $100/hour is reasonable for the time spent in 2000 and $105/hour is reasonable for any time spent in 2001.

10. Krawczuk/Roach

Krawczuk/Roach has a 1999 bar number and was an associate who performed work for O'Donnell and Clark beginning in 1999. The 1999 hourly rate of $95 is reasonable based on the 1998 Economic Survey. I conclude that $105/hour for 2000 and $110/hour for any hours worked in 2001 is reasonable based on the 1998 Economic Bar Survey and allowing for inflation and increased experience.

11. Roggendorf

Roggendorf performed work as a law clerk. There is no information in the record regarding whether she was a first, second, or third year law student while she worked for O'Donnell and Clark. For the reasons stated above in connection with Lowe's and Day's hourly rate for law clerks, I conclude that $65/hour for law clerk hours in 2000 is reasonable.

12. Paxton

Paxton performed work as a law clerk. As with Roggendorf, there is no information in the record regarding whether he was a first, second, or third year law student while he worked for O'Donnell and Clark. For the reasons stated above in connection with Lowe's and Day's hourly rate for law clerks, I conclude that $65/hour for law clerk hours in 2000 is reasonable.

13. Kleve

From reviewing the billing statement entries it appears that Kleve was the lead paralegal on this case. Again, as with every other attorney, law clerk, and paralegal other than Clark, plaintiff provides no information about the prevailing market rate for such personnel and provides no information regarding Kleve's background, skills, or experience.

The only information on which to gauge the reasonableness of an hourly rate for a paralegal is the 1998 Economic Survey. Given that in 1998, Portland attorneys with one to three years of experience averaged $104/hour, Kleve's hourly rate of $65 for 1999 is reasonable. This acknowledges the differences in education and responsibility between new attorneys and paralegals. Additionally, while $65/hour is more than the $60/hour for law clerks in 1999, the additional $5/hour reflects the particular responsibility Kleve appears to have had in this case. I also note that some experienced paralegals may provide more value to the representation of a client than law student clerks.

Without any information about Kleve or other information about prevailing rates for paralegals in the Portland community, a jump from $65 per hour in 1999 to $80 per hour in 2000 is unreasonably large. To account for inflation, a more reasonable increase would be to $70 per hour for work in 2000, and to $75 per hour for work in 2001.

14. Hinkle

Hinkle's qualifications are discussed above. Although he is a highly experienced attorney and a recognized expert in constitutional law, the only evidence in the record to support his $305 hourly rate is his own affidavit in which he states that the rate he charges is consistent with the prevailing rates for attorneys in Portland. The 1998 Economic Survey shows that the average 1998 prevailing market rate for Portland attorneys with twenty-one to thirty years of experience was $178/hour. Hinkle performed his services in this case in 2001, when he had thirty years of experience practicing law. Recognizing that Hinkle is on the upper end of the experience category covering twenty-one to thirty years, and recognizing his particular skill, I conclude that a reasonable hourly rate for Hinkle is $200 in 1998. Adjusting for inflation, the reasonable rate for his work in 2001 is $218/hour.

15. Other Employees

The rates for any other employee not specifically mentioned here, are reasonable.

IV. Calculation of the Lodestar

Several of the Kerr factors noted above should be considered in determining the reasonable number of hours: the time and labor required; the novelty and difficulty of the questions involved; and the results obtained. See Morales, 96 F.3d at 364 n. 9 (noting subsumed factors); Hensley v. Northwest Permanente, P.C. Retirement Plan Trust, No. CV-96-1166-ST, 1999 WL 1271576, at *6 (D.Or. Dec. 6, 1999) (noting subsumed factors). While the disallowed hours are not insignificant, the total number of hours awarded herein is reasonable, even when considering the three subsumed factors. Plaintiff contends that this was a very complex case and that the settlement achieved very desirable results, more than the $75,000 cash figure represents.

In contrast, defendants note that most of plaintiff's claims were disposed of by summary judgment and what remained were fairly simple disputed factual issues such as whether the emergency conditions necessary to justify SWO3 existed when SWO3 was issued.

The time and labor required was significant, perhaps more than necessary given defendants' penchant for last minute filings on the day of hearings, raising new issues. The case involved a preliminary injunction, a motion to dismiss, summary judgment motions, and at least one motion to reconsider, as well as motions to amend the complaint.

The most novel and complicated issue in this case was the jurisdictional question related to the writ of review, fees for which are largely unrecoverable. The other claims, while somewhat complex, were not novel or unique to this court. Additionally, each individual claim was relatively straightforward and the complexity of the case was largely driven by the volume of claims rather than the nature of the claims themselves.

As to the result obtained, while many of plaintiff's claims were resolved in defendants' favor on summary judgment, the results accomplished on the remaining claims via settlement were significant. Plaintiff secured a promise by the County to work on clearing all existing code violations so that plaintiff can move ahead with its expansion plans. Also, the County agreed to waive application fees for any permits. The County additionally agreed to make adjustments to the challenged GEC permit conditions, even though the GEC claims were already dismissed from the case. Finally, based on this case, the County's future issuance of stop work orders, to plaintiff or others, should, and likely will, be based on the appropriate criteria.

Given that plaintiff was seeking almost $3 million in compensatory damages and $5 million in punitive damages, I cannot conclude that the results obtained were substantial. Nonetheless, based on the non-monetary relief obtained, I conclude that plaintiff has obtained significant positive results in this case.

Other Kerr factors are subsumed into the determination of the hourly rate: the skill, experience, and reputation of counsel, and the customary fee. These factors have been discussed above in connection with the determination of reasonable rates and need no elaboration here.

The reasonable number of hours multiplied by the reasonable hourly rate produces the following figures:

Includes the 2.64 hours for time spent on the writ of review.

Includes the 22.18 hours for time spent on the preliminary injunction motion.

Without evidence to the contrary in the record, I assume Day took the Oregon State Bar entrance exam in the summer of 2000 and was admitted in mid-September 2000, conforming to the Oregon State Bar's customary practice. I assumed all hours worked until September 14, 2000, were as a law clerk, and all hours thereafter were as an associate attorney.

See footnote 38.

In plaintiff's summary chart of all persons who worked on this case, their number of hours, and their requested hourly rates, plaintiff makes no mention of Maiden, Jennings, Mapolski, Bowlby, and Diehl. From the billing entries, it appears that these employees were paralegals or were performing paralegal tasks. I have compensated them at the regularly hourly rate awarded to others performing similar tasks.

See footnote 40.

ATTORNEY/PARALEGAL/CLERK YEAR HOURS RATE/HR TOTAL AMOUNT O'Donnell 1999 5.9 $185 $1,091.50 O'Donnell 2000 3.8 $190 $722 O'Donnell 2001 4.9 $195 $955.5 Clark 1999 50.64 $175 $8,862 Clark 2000 177.38 $180 $31,928.40 Clark 2001 83.2 $185 $15,392 Chandler 1999 12.2 $165 $2,013 Chandler 2000 10.7 $170 $1,819 Kellington 2000 no $182 $0 allowable hours Ramis 2000, no $165 $0 2001 allowable hours Day — Law 1999 49.7 $60 $2,982 Clerk Day — Law 2000 137.4 $65 $8,931 Clerk Day — 2000 43.4 $100 $4,340 Associate Attorney Day — 2001 174.3 $105 $18,301.50 Associate Attorney Ellis/Dumas 1999 0.4 $145 $58 Ellis/Dumas 2000 27.5 $150 $4,125 Winters 2000 4.4 $110 $484 Stamp 1999 no $110 $0 allowable hours Stamp 2000 no $115 $0 allowable hours Lowe — Law 1999 14.6 $60 $876 Clerk Lowe — Law 2000 12.1 $65 $786.50 Clerk Lowe — 2000 17.9 $100 $1,790 Associate Attorney Lowe — 2001 53.7 $105 $5,638.50 Associate Attorney Krawzuck/ Roach 1999 2.5 $100 $250 Krawzuck/ 2000 no $105 $0 Roach allowable hours Krawzuck/ 2001 no $110 $0 Roach allowable hours Roggendorf 2000 34 $65 $2,210 Paxton 2000 4 $65 $260 Kleve 1998 1 $65 $65 Kleve 1999 31.9 $65 $2,073.50 Kleve 2000 49.1 $70 $3,437 Kleve 2001 17.2 $75 $1,290 Weber 2000 14.3 $60 $858 Weber 2001 13.6 $65 $884 Heintz 2000 15.5 $60 $930 Fearing 1998 no $60 $0 allowable hours Fearing 1999 no $60 $0 allowable hours Beisley 1998 no $60 $0 allowable hours Beisley 2000 no $60 $0 allowable hours Beisley 2001 no $65 $0 allowable hours Hinkle 2001 2.3 $218 $501.40 Maiden 1999 0.4 $60 $24 Jennings 2000 2.2 $60 $132 Mapolski 2000 1.2 $60 $72 Bowlby 2001 0.7 $65 $45.50 Diehl 2001 0.9 $65 $58.50 TOTAL $124,186.8 V. Adjustments to the Lodestar

Once the lodestar is determined based on calculating the reasonable number of hours by the reasonable hourly rate, it is presumed to be a reasonable fee award. See, e.g., Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir. 2001) ("in most cases, the lodestar figure is presumptively a reasonable fee award[.]"); Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000) (lodestar figure is presumptively reasonable but may, in appropriate cases, be adjusted based on factors not subsumed in the lodestar); Van Gerwen, 214 F.3d at 1045 (lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar upward or downward "only in rare and exceptional cases, supported by specific evidence on the record" and detailed findings that the lodestar amount is unreasonably low or high).

Although presumptively reasonable, the lodestar figure may be adjusted by factors not subsumed in the lodestar calculation. Gracie, 217 F.3d at 1070. The factors not subsumed are: (1) the preclusion of other employment by the attorney due to acceptance of the case: (2) time limitations imposed by the client or the circumstances; (3) the undesirability of the case; (4) the nature and length of the professional relationship with the client; and (5) awards in similar cases. See Morales, 96 F.3d at 364 n. 9 (listing subsumed factors).

A. Preclusion of Other Employment

In its memorandum, plaintiff states that its counsel is a partner in a small firm, initially consisting of two attorneys but now employing four attorneys. Plaintiff states that the nature and complexity of this case required significant attention by the firm's only trial attorney, and "necessarily diverted efforts and energies away from seeking and accepting new employment." Pltf's Memo. at p. 23.

Defendants note that while deposing Clark on issues related to the fee petition, defendants asked Clark to identify any work he turned away on account of this case. He responded:

I've referred work out the last couple of months because of my overall caseload. I can't tell you that it's because of this particular case, but because of the overall caseload and the feeling that I had that these other cases are getting backed up because of my trial schedule.

Defts' Exh. 7 at p. 15. The next question was "So it's the overall load?" Clark's response was "[t]he overall caseload, yeah." Id.

Based on that discussion, the evidence does not support plaintiff's assertion that this case precluded plaintiff's counsel from other employment.

B. Time Limitations Imposed by the Client

Plaintiff does not address this factor. Defendants argue that this is not a factor in this case because the case was handled in the ordinary course on the same schedule as other civil actions seeking an award of damages with contested liability. I agree with defendants.

C. Undesirability of the Case

Plaintiff does not address this factor. Defendants argue that this case is no more undesirable than other civil rights cases. In his deposition, Clark admits that this was not an undesirable case. Defts' Exh. 7 at p. 63.

D. Nature and Length of Relationship with Client

O'Donnell has a long standing professional relationship with plaintiff, having represented plaintiff for more than twelve years. Other information about the nature of the relationship is not revealed in this record.

E. Awards in Similar Cases

Plaintiff does not address this factor. Defendants argue that the hourly rates claimed by plaintiff's counsel in this case exceed those rates awarded in similar cases. Defendants cite to the 1998 Economic Survey as one source of information and argue that the most direct evidence of awards in similar cases is fee awards by judges in this district. Defendants note that plaintiff has failed to produce such evidence.

Although there may be additional cases because of some inconsistency by this court in reporting its cases, my research revealed only a few recent cases in which a judge in this district awarded more than $175 — $200/hour. In a 2000 case, Judge Frye awarded $250/hour to Tom Steenson in an employment discrimination case and the following rates to other attorneys in his office: $200/hour for his partner Michael Schumann, $175 for his partner Zan Tewksbury, and $150/hour for his associate Beth Creighton. Skou v. Pacific Int'l Pipe Enterprises, No. CV-97-477-FR, 2000 WL 748111 (D.Or. June 8, 2000).

In a 2001 case, Magistrate Judge Stewart awarded Spencer Neal $225/hour. Pollard v. City of Portland, No. CV-01-114-ST, Findings Recommendation, at pp. 3-8 (D.Or. Aug. 7, 2001) (adopted by Judge Haggerty on September 7, 2001). Without additional case citations by plaintiff, these two cases do not support a higher award for plaintiff here.

Plaintiff argues for an upward adjustment of the lodestar based on the novel and difficult legal issues, the skill of counsel, the preclusion of employment by plaintiff's counsel due to acceptance of the case, the amount involved and results obtained, the experience, reputation, and ability of counsel, and the nature and length of the professional relationship with client. As indicated above, several of these factors are already subsumed in the lodestar calculation. Any adjustment based on subsumed factors is inappropriate. Morales, 96 F.3d at 364 n. 9 (adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated is disfavored).

As to the non-subsumed factors, as demonstrated above, only the fact that O'Donnell has represented plaintiff for more than a decade possibly weighs in plaintiff's favor. The cases do not address the application of this factor. An argument can be made that an attorney's long-standing relationship with a client would actually weigh against an enhancement on the theory that the attorney would have performed the work for this client in any event. Alternatively, an argument can be made that the long-standing relationship can often result in discounted fees to the client, making an enhancement appropriate to offset for the discounted fees. Even if I consider the thirteen-year relationship as an argument for enhancement, it is insufficient, by itself, to justify an upward adjustment.

Defendants, in contrast, argue that a downward adjustment is appropriate based on what the County considers plaintiff's "limited" success. Because I have discounted time for the writ of review and the preliminary injunction, as well as the other discounts, and because I consider, as explained above, plaintiff's ultimate success to be substantial, I decline to downwardly adjust the lodestar figure. In this case, the calculation of the lodestar produces a reasonable attorney's fee.

VI. Costs

Plaintiff seeks $34,781.87 in costs related to the litigation as follows:

ITEM TOTAL COSTS

Court Filing Fees $215

Depositions $4,518

Copying Costs $1,344.29

Long Distance $112.55

Delivery Charges $645.50

Exhibit Prep $593.32

Public Records Fee $6,078.69

Expert Witness Fee $20,289.31

Computer Research $874.17

Postage $21.80

Mileage $42.16

Fax Charges $14.08

Parking $33

Under 28 U.S.C. § 1920, the court may tax as costs any of the following: (1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828.

Additionally, under section 1988, out-of-pocket expenses normally incurred by an attorney and charged to the client are recoverable costs. See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir. 1986) ("Even though not normally taxable as costs, out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client are recoverable as attorney's fees under section 1988."), amended on other grounds, 808 F.2d 1373, (9th Cir. 1987); see also Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (same). Thus, plaintiff's requested costs must be compensable costs under 28 U.S.C. § 1920 , or be out-of-pocket attorney expenses recognized as compensable under section 1988.

Although plaintiff has not yet submitted a separate cost bill for costs under section 1920, plaintiff represented at oral argument on the fee petition that it sought compensation only for the costs contained in this fee petition and would not submit a separate post-judgment cost bill.

A. Depositions

"Deposition costs are taxable if they are reasonably necessary for trial." Evanow v. M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998); see also Aflex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990) (costs of depositions and transcripts allowable because reasonably necessary to the motion for summary judgment).

In its original motion for fees, plaintiff's documentation of the deposition costs was insufficient. For example, in an exhibit in which plaintiff broke down all of its requested costs, plaintiff shows the court reporting service, the date, and the amount paid. No mention is made of name of the deponent or whether the cost was for the taking of the deposition or a transcript of testimony. See, e.g., Pltf's Exh. B at p. 1 (entry reads: "Morgan Court Reporting — 2/25/00 $50" and "Morgan Court Reporting — 2/25/00 $870"). The billing entries for O'Donnell and Clark for February 25, 2000, show no time spent in depositions on that date.

Recognizing that the cost could have accrued when the bill was paid rather than when the deposition was taken or the transcript ordered, I examined the final page of the O'Donnell and Clark billing entries where some of the costs advanced and costs incurred are detailed. There, the $50 fee to Morgan Court Reporting indicates that it was for an "appearance." Pltf's Exh. A at p. 66. The $870 fee was for an appearance and transcripts for Muir and Busse. Id. Still, plaintiff failed to submit the bill from Morgan Court Reporting in support of the costs.

Because of the lack of documentation, I indicated in the June 21, 2001 Interim Order that I would disallow all deposition costs with no supporting documentation. I granted plaintiff leave to submit additional documentation in its amended petition. Plaintiff has now done so.

Plaintiff's request for the following deposition costs is granted in part and denied in part as set out below:

REPORTING SERVICE DATE — AS DEPONENT/TRANSCRIPT AMOUNT DISPOSITION LISTED IN SOUGHT PLTF'S EXH B Morgan Court 2/2/00 "Deposition scheduled $50 Disallowed. Although Reporting for Tuesday February 15, the record does not 2000, in the offices of affirmatively Mult. County Counsel, represent who was to Portland. Reporters were be deposed that day, double booked." Pltf's it is safe to assume, Exh. E at p. 3. based on local practice, that plaintiff was to take the deposition of a defense witness and thus, that plaintiff would have arranged the court reporter. It is unreasonable to expect defendants to pay for plaintiff's double booking error. Morgan Court 2/25/00 Depositions taken of Muir $870 Allowed Reporting and Busse on 1/27/00. Bill includes fees for appearance, transcript, and delivery Bolam 3/17/00 Deposition taken of $262 Allowed Associates McCaulley on 2/3/00. Bill includes fees for transcript but not for appearance Bolam 3/20/00 Deposition taken of $231 Allowed Associates McCaulley on 2/15/00 (Vol II). Bill includes fees for transcript but not for appearance Kairi's 3/20/00 Depositions of Cherie $345.50 $74.25 is allowed. Sprando and Jay McCaulley The bill includes a (Vol II). Bill includes $253.75 transcript fees for transcripts and charge for 2/24/00 but delivery fails to identify the deponent. That charge is therefore disallowed. It also includes a $17.50 charge for a transcript of volume II of the McCaulley deposition which appears to have already been provided by Bolam Associates (see previous entry). D. Cheyne 3/20/00 Transcript of preliminary $386.25 One-fifth, or $77.25 injunction hearing is allowed in accordance with the percentage allowed for work on preliminary injunction motion Morgan Court 5/16/00 Depositions of Busse and $874.75 Allowed Reporting Estrin. Bill includes fees for appearance, transcripts, and delivery Morgan Court 5/31/00 Depositions of Purchase $722.50 Allowed Reporting and Hedrick; bill includes fees for appearance, transcripts, and delivery Morgan Court 6/12/00 Deposition of Estrin. $670.50 Allowed Reporting Bill includes fees for appearance, transcript, and delivery Kairi's 8/21/00 Deposition of Chandler. $105.50 Allowed Bill includes transcript and delivery fee In addition to these deposition costs originally requested by plaintiff, defendants indicate they are willing to pay $13 for the transcript of the settlement proceedings. Defendants submit documentation of that expense. Defts' Exh. 12 at p. 17. Plaintiff is awarded that $13 expense as well.

B. Copying

Under section 1920, copying charges are compensable if they are necessarily obtained for use in the case. Evanow, 163 F.3d at 1118. The copies need not actually have been used as evidence to justify an award of costs, they need only have been "necessarily obtained" in the context of the litigation. Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 920 F.2d 587, 588 (9th Cir. 1990 (per curiam). Copying can also be an awardable non-overhead expense under section 1988, as long as plaintiff documents that its charges pertain to matters before the awarding court. West Virginia Hosp. v. Casey, 898 F.2d 357, 366 (3d Cir. 1990).

As indicated in the June 21, 2001 Interim Order, I disallowed all copying costs for which there is no documentation demonstrating that the copying was reasonably necessary and related to the instant litigation. In this case, where the parties' disagreements included issues unrelated to the litigation such as land use or other permits, or liquor licenses, plaintiff must show that the copies related to the litigation and not the other unrelated matters. Thus, Clark's statements in his affidavit that the requested costs are routinely billed to clients because they are directly related to the work for the client, Clark Affid. at ¶ 13, and that the costs were reasonable and necessary in pursuit of his client's interests, id. at ¶ 20, are insufficient. This does not affirmatively demonstrate that the costs were incurred as part of this litigation.

In response to the Interim Order, plaintiff has provided documentation of some of its copying expenses. However, the documentation is inadequate because while it shows that plaintiff incurred the cost, it does not explain the relationship of the copying to the litigation. As a result, I disallow all but one of plaintiff's copying costs because no documentation was provided or the documentation that was provided is inadequate to show that the copying was necessarily obtained in the context of the litigation.

The one copying cost allowed is the $67.50 for color photocopies on March 17, 2000. Although the bill from the copy company gives no indication of the necessity or relationship to the litigation, the summary of costs listed at the end of the O'Donnell and Clark billing entries states that the copies were color copies of exhibits. Pltf's Exh. E at p. 21. This is a sufficient nexus to the litigation for reimbursement.

Additionally, the $266.39 incurred on November 30, 2000 is disallowed despite defendants' representation that this was for copies of the Multnomah County Code. While parts of the Multnomah County Code were relevant to the litigation, it is available for no cost over the Internet and thus, shifting the cost of such copies to defendants is unreasonable.

C. Delivery Service Charges

As with the copying charges, plaintiff provided no documentation in support of its delivery service charge in the original fee petition. In the Interim Order, I disallowed all delivery service charges for which there is no explanation of what was delivered, to whom, the corresponding charge, and how it relates to the litigation.

In response to the Interim Order, plaintiff submits no new information or documentation regarding its delivery service costs. Defendants, however, submit thirteen pages of documents regarding deliveries, most of which are invoices from Rapid Print. The invoices do not indicate the type of document served. Additionally, of all the persons upon whom a document was delivered, only one is known to this court. On April 21, 2000, something was delivered to Kathy Busse, one of the defendants in this action. Nonetheless, given the presence of land use and other non-litigation related issues being pursued by plaintiff during the pendency of this case, I cannot conclude that the delivery was necessary to this litigation. Finally, the relationship to the litigation of the delivery charges for service on the non-persons, such as Portland General Electric, is also unsupported. Thus, all requested delivery charges are disallowed for failure to document their relationship to the litigation.

D. Exhibit Costs

Plaintiff seeks $593.32 in exhibit costs. The cost chart plaintiff provided with its original motion shows the type of exhibit and the date for four of the six requested exhibit expenses. Because the nature of the exhibit is revealed and the dates on which the charge accrued were within one or two days of the preliminary injunction hearing, plaintiff has demonstrated the connection between these exhibits and the litigation. Additionally, although they were supplied for the preliminary injunction hearing, I kept the original exhibits during the pendency of the case and used them periodically. Thus, the following exhibit costs are fully recoverable: (1) hearing exhibit enlargements and mounting — 2/25/00 for $135.41; (2) color photographs — 2/25/00 for $11.39; (3) hearing exhibit indices and notebooks — 3/1/00 for $73.46; and (4) hearing exhibit enlargements and mounting — 3/1/00 for $80.59.

Plaintiff also seeks $96.30 for "exhibit indices" and $196.17 for "TIS Imaging Services." In the June 21, 2001 Interim Order, I disallowed these costs because I was unable to discern what they were for. In response, plaintiff provided no additional documentation. Defendants, however, submitted an invoice for $196.17 from TIS Imaging Services showing a paid stamp dated January 30, 2001. Defts' Exh. 15 at p. 1. Additionally, defendants show an internal O'Donnell and Clark "Check Request" form seeking payment of $135.41 to TIS for trial exhibit enlargements. This is sufficient documentation to explain the nature of the charge, when it occurred, and its connection to the litigation. It is compensable. Thus, all exhibit costs are allowed except the $96.30 for "Exhibit Indices" for which there is no documentation explaining its relationship to the litigation.

E. Public Record Fees

Plaintiff seeks $6,078.69 in public record fees. $5,644.84 of plaintiff's request is the fee sought by the State of Oregon for its response to plaintiff's subpoena seeking documents related to Cherie Sprando and Jay McCaulley. I disallowed this cost in the Interim Order.

As explained above, the amount of time spent reviewing the documents responsive to the subpoena and the time spent litigating the cost of production, were related to plaintiff's overbroad subpoena and thus, were not reasonably spent on the litigation. Similarly then, the cost of producing the documents is also not fairly chargeable to defendants. As defendants note, plaintiff ended up using fewer than twenty of the approximately 14,000 documents produced by the DSL. Additionally, there is no evidence in the record of what the state and plaintiff negotiated as the final cost or that it was ultimately charged to the client. Thus, the $5,644.84 sought for the State of Oregon public records fee, is disallowed.

The remaining public record fees were incurred by plaintiff in the fall of 2000 for public records from the County. Defendants have no objection to those fees and I conclude that they were reasonably incurred in the context of the litigation. Thus, I allow $433.85 in public record fees.

F. Computerized Legal Research

Plaintiff seeks $874 for computerized research. Courts appear split over an award of costs for computer research such as Lexis and Westlaw. Compare Arthur Kaplan Co. v. Panaria Int'l, Inc., No. 96 CIV 7973 HB, 1999 WL 253646, at *3, 51 U.S.P.Q.2d 1216 (S.D.N.Y. 1999) (disallowing requested costs for computer research because "computer research is `merely a substitute for an attorney's time that is compensable under an application for attorney's fees[;]'" allowing plaintiff to recover the expenses incurred conducting the research as part of the fee award provided that the contemporaneous time records reflect the time performing the research) (quoting United States v. Merritt Meridian Constr. Co., 95 F.3d 153, 172 (2d Cir. 1996)); with Harman v. Lyphomed, Inc., 945 F.2d 969, 976 (7th Cir. 1991) ("Computer-assisted research fees — so long as reasonably incurred — in theory reduce the number of attorney hours otherwise needed for (presumably) more time-consuming manual research and are therefore compensable."); Superior Form Bldgs., 881 F. Supp. at 1029 (because computer legal research will reduce the number of hours an attorney must dedicate to the case, those charges are compensable as costs to be included as part of an attorney's fee award). I found no Ninth Circuit cases relevant to this issue, even in the context of other fee-shifting statutes.

As indicated by the cited cases, the courts that have allowed costs for such research have done so on the premise that computerized research reduces the number of attorney hours spent on the case. Even if I were to adopt that reasoning, I award no costs for computerized legal research in this case because the number of attorney hours is already high and there is no evidence supporting a conclusion that computerized research reduced the number of attorney hours in this case. Thus, I disallow the $874 in requested computerized legal research.

G. Expert Witness Fees

Plaintiff seeks $20,289.31 in expert witness fees. While the costs are adequately documented, they are not a recoverable cost under section 1988. In 1987, the Supreme Court held that expert fees cannot be awarded to a prevailing plaintiff absent explicit Congressional authority because the general costs statutes, 28 U.S.C. § 1821 and 1920, do not allow party experts' costs to be taxed to the losing party. Crawford Fitting Company v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Four years later, the Court specifically held that expert witness fees cannot be awarded under section 1988 because it lacked explicit Congressional authority for such an award. West Virginia Univ. Hosp. v. Casey, 499 U.S. 83, 102 (1991). Thus, where Congress desires that expert fees be compensated, it must specifically provide so. Id. at 88-92.

A few months after the Casey decision, Congress amended Section 1988 to allow expert fees in certain cases. The amended text of Section 1988(c) states:

(c) Expert Fees. In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney's fee.

42 U.S.C. § 1988(c). Although section 1988(b) allows for fee awards in many types of cases, including those brought under section 1983, section 1988(c), by its terms, allows expert fees for prevailing parties in section 1981 or 1981a cases only. It does not specify recovery of expert fees in Section 1983 cases. Several courts, including the Ninth Circuit, have reached this conclusion and interpret the statute as making no provision for an award of expert witness fees in a section 1983 case. The Ninth Circuit noted that

[t]he Supreme Court . . . handed down its decision in Casey, the result of which was to render such an award of [expert] fees improper. Shortly thereafter, Congress passed, and the President signed into law, a statute which strips Casey of any force in the employment discrimination context by explicitly providing that, in actions brought pursuant to Title VII or 42 U.S.C. § 1981, expert fees may be awarded.

Davis v. City and County of San Francisco, 976 F.2d 1536, 1552 (9th Cir. 1993) (emphasis added). The court also noted that Congress amended " 42 U.S.C. § 1988 to authorize the award of expert fees in actions brought pursuant to 42 U.S.C. § 1981 and 1981A." Id. at 1550 n. 6. Other courts concur. E.g., Petties v. District of Columbia, 55 F. Supp.2d 17, 18 (D.D.C. 1999); Swans v. City of Lansing, 65 F. Supp.2d 625, 648 (W.D.Mich. 1998); Brennan v. Springfield Township, No. CIV. A. 97-5217, 1998 WL 792180, at *5 n. 12 (E.D.Pa. 1998); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F. Supp. 53, 69 (D.Mass. 1997); Cleveland Area Bd. of Realtors v. City of Euclid, 965 F. Supp. 1017, 1024-25 n. 10 (N.D.Ohio. 1997); Johnson v. Mortham, 950 F. Supp. 1117, 1127 (N.D.Fla. 1996); Baird v. Consolidated City of Indianapolis, 830 F. Supp. 1183, 1188 (S.D.Ind. 1993); United States v. City of Buffalo, 770 F. Supp. 108, 117 (W.D.N.Y. 1991); Rivera v. Dyett, 762 F. Supp. 1109, 1118 (S.D.N.Y. 1991).

Accordingly, I disallow plaintiff's requested expert witness fees of $20,289.31 because plaintiff's claim was brought under section 1983 and not under section 1981 or 1981A.

H. Other Costs

Plaintiff seeks $112.55 in long distance charges, $41.16 in mileage expenses, $21.80 in postage, $14.08 in fax charges, and $33 in parking expenses. In the Interim Order, I disallowed all of these charges for which there was no supporting documentation demonstrating the relationship between the charge and the litigation.

Plaintiff has failed to submit any documentation in response to the Interim Order regarding these costs. Based on the record, I cannot tell how much per mile plaintiff charges its client, or whether the trip producing the mileage expense was related to the litigation. For example, in one of the requested mileage charges, plaintiff seeks $19.22 for mileage for July 13, 1999. Pltf's Exh. B at p. 4. From examining the billing statements, I assume that this mileage expense was incurred by paralegal Jacklyn Fearing on July 6, 1999, when she traveled to Gresham to hand deliver documents to Busse. See Pltf's Exh. A at p. 94. According to the driving directions provided by Yahoo.com, the distance between plaintiff's counsel's office and the Multnomah County Land Use Department at which Busse works, is 16.9 miles, or 33.8 miles round trip. Charging $19.22 for 33.8 miles equals $0.56 per mile, well above the 2000 Internal Revenue Service allowable mileage rate of $0.32.5 per mile. Thus, based on the one mileage entry for which I can perhaps trace the number of miles, the requested rate is unreasonable. Furthermore, without any statement of what was delivered, I cannot conclude that plaintiff has demonstrated that the expense was related to the litigation.

Similar problems are seen with the postage, long distance, fax, and parking charges. Without any documentation by plaintiff showing that these charges were reasonably incurred in the context of the matters pending before this court, I cannot conclude that plaintiff has demonstrated that the expenses were related to the litigation. Thus, I disallow the requested costs for postage, long distance, mileage, fax charges, and parking expenses.

CONCLUSION

Plaintiff's motion for attorney's fees (#176), and amended motion for attorney's fees (#208) are granted in part and denied in part. Plaintiff is awarded $124,186.80 in attorney's fees and $5,114.12 in costs.

IT IS SO ORDERED.

Frevach Land Company v. Multnomah County

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Frevach Land Company v. Multnomah County

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Frevach Land Company v. Multnomah County

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Frevach Land Company v. Multnomah County

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