Lawrence J. O'Neill

ORDER ON MOTION FOR RELIEF

FROM JUDGMENT

(Doc. 135)

INTRODUCTION

After a jury trial in this matter, Plaintiff Isaac Miller ("Plaintiff") moved this Court for an award of attorney's fees and costs pursuant to 42 U.S.C. § 1988(b). On February 18, 2014, this Court granted in part Plaintiff's motion. Before the Court is Plaintiff's motion for reconsideration of this Court's award of attorney's fees and costs to Plaintiff pursuant to Fed. R. Civ. P 59(e) and 60(b). For the reasons discussed below, the Court DENIES Plaintiff's motion as to the billing records of Kevin Little and ORDERS Plaintiff's counsel to submit a written verification as to the billing records of Alex Chechelnick and Lorena Garcia.

BACKGROUND

On January 29, 2012, Plaintiff brought this action for civil rights violations and expungement of his arrest record against Defendants Officer Steven John Schmitz ("Schmitz"), Ronald Silva ("Silva") and the City of Hanford ("the City") based on Plaintiff's arrest and prosecution following an altercation that occurred on February 17, 2010.

Plaintiff and Defendants Schmitz and the City (collectively, "Defendants") participated in a jury trial on Plaintiff's claims for malicious prosecution and expungement of Plaintiff's arrest record. On November 27, 2013, the jury returned a favorable verdict for Plaintiff as to both claims and awarded Plaintiff $500,000.00 in damages.

On December 30, 2013, Plaintiff filed a motion for attorney's fees and costs pursuant to 42 U.S.C. 1988(b). On February 18, 2014, this Court granted in part Plaintiff's motion. Plaintiff filed the instant motion for reconsideration of this Court's award of fees and costs on February 24, 2014. Defendants filed an opposition on March 13, 2014, and Plaintiff filed a reply on March 20, 2014.

DISCUSSION

A. Legal Standard

Plaintiff moves this Court to reconsider its February 18, 2014 award of attorney's fees and costs pursuant to Fed. R. Civ. P. 59(e) and 60(b).

A court may grant a motion for relief from a final judgment where "1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; or 4) there is an intervening change in controlling law." Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (internal citations, quotations, emphasis omitted). See also, Sch. Dist. No. IJ, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) ("Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.") (internal citation omitted).

A district court may reconsider and reverse a previous decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of controlling law. Abada v. Charles Schwab & Co., Inc., 127 F.Supp.2d 1101, 1102 (S.D. Cal. 2000). Nevertheless, a court should generally leave a previous decision undisturbed absent a showing of clear error or manifest injustice. Id. Reconsideration is not a mechanism for parties to make new arguments that could reasonably have been raised in their original briefs. See, Kona Enters. v. Estate of Bishop, 229 F.3d 887, 890 (9th Cir. 2000). Nor is it a mechanism for the parties "to ask the court to rethink what the court has already thought through—rightly or wrongly." United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998). "To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

B. Analysis

Plaintiff makes three main arguments in support of his motion. First, he argues that defense counsel's total number of hours expended on this case constitutes "newly discovered evidence" such that the Court's fee award should be reconsidered. Second, he argues that the Court committed errors of law in reducing Alex Chechelnik and Lorena Garcia's hours in conjunction with those of lead counsel Kevin Little, in declining to award attorney's fees for preparing a bill of costs, and in the analysis resulting in this Court's reduction of Little's hours. Finally, Plaintiff argues that the reduction of fees is prejudicial to solo practitioners.

1. Defense Counsel's Hours

Plaintiff submits evidence that defense counsel recorded 1,189.40 total hours of work on this case and argues that this proves Plaintiff's counsel's submitted total hours of 1,373.96 are reasonable. The Ninth Circuit has made clear that, "[a]lthough opposing counsel's billing records may be relevant to determining whether the prevailing party spent a reasonable number of hours on the case, those records are not dispositive." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (citing Democratic Party of Wash. v. Reed, 388 F.3d 1281, 1287 (9th Cir.2004)). "Therefore, the district court has the discretion not to rely on them." Id. (citing Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir. 2001)).

Here, the submitted evidence as to defense counsel's hours has limited relevance to determining the reasonableness of Plaintiff's counsel's hours. First, the submitted evidence only shows the total number of hours recorded by seven individuals and their combined total of 1,189.40 hours. There is no indication of what activities defense counsel performed in accumulating those hours or the distribution of those hours over time. Further, defense counsel's records indicate that the bulk of the hours recorded are split fairly evenly between one experienced senior attorney and one junior attorney with fewer than two years of experience at the time this case began. Whereas the senior defense attorney recorded 589.30 hours of work on this case, the senior attorney for Plaintiff submitted records of 1,149.71 hours of work on this case. For these reasons, Plaintiff's argument that defense counsel's billing records constitute "new evidence" such that this Court's prior judgment must be reconsidered is unpersuasive.

2. Claimed Errors

i. Bill of Costs

This Court declined to award attorney's fees for the preparation of a bill of costs because the activity was clerical in nature and did not involve the practice of law. Plaintiff argues that preparing a bill of costs requires applying law, such as Fed. R. Civ. P. 54(d), to facts and is therefore a "quintessential legal task." (Doc. 166 p. 8). However, as relevant to a bill of costs, Rule 54(d) requires a motion for attorney's fees to "state the amount sought or provide a fair estimate of it." Therefore, applying Rule 54(d) to the facts involves the "gathering of receipts and totaling their sum," which, as Plaintiff recognizes, is a non-recoverable clerical task. Id. Plaintiff further argues that "[a] bill of costs has to be verified by an attorney, so it obviously is not a merely clerical endeavor." (Doc. 166 p. 8). This argument is likewise unpersuasive. For example, attorneys regularly verify expense reports for incidental expenses incurred while working on a case. Preparing an expense report also involves the clerical task of "gathering of receipts and totaling their sum," which, again, is not recoverable as attorney's fees. Id. Accordingly, Plaintiff fails to show that this Court's declination to award attorney's fees for preparing a bill of costs constitutes "clear error or manifest injustice." Abada, 127 F.Supp.2d at 1102.

ii. Reduction to Plaintiff's Lead Counsel's Hours

Plaintiff argues that the Court made a manifest error in reducing the hours of lead counsel Kevin Little. When assessing a heavy billing record, "the district court has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure as a practical means of trimming the fat from a fee application." Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (internal quotation omitted). "[W]hen a district court decides that a percentage cut (to either the lodestar or the number of hours) is warranted, it must 'set forth a concise but clear explanation of its reasons for choosing a given percentage reduction.'" Gonzalez, 729 F.3d at 1203 (citing Gates, 987 F.2d at 1400). In assessing Little's recorded hours, this Court considered attorney's fees claimed and awarded by federal courts in similar cases that proceeded to trial, Little's impracticable billing during the trial, the fact that this case involved only typical civil rights claims rather than any novel, complex, or particularly difficult legal issues, the lack of complex or protracted motions work, and Little's twenty-plus years of experience in civil rights litigation.

Plaintiff argues that the cases this Court considered are different from the instant case in some way and are therefore "rather unhelpful." (Doc. 166 p. 10-12). Instead, Plaintiff argues that this Court should consider an assortment of mostly unpublished cases where the prevailing party's counsel recorded more than 1,000 hours of work. Id. Plaintiff fails to demonstrate that the Court "committed clear error." ACandS, Inc., 5 F.3d at 1263.

Plaintiff also takes issue with this Court's assessment of Little's billing during the trial. The Court noted that Little twice billed over 24 hours for one day of work, billed over 70 hours in a three-day period, and also billed over 22 hours each day for several other days during trial. See, Alvarado v. FedEx Corp., C 04-0098 SI, 2011 WL 4708133 at * 17 (N.D. Cal. Sept. 30, 2011) (imposing a 40% across-the-board reduction due to inflation of hours, including "repeated billing for excessively long days of 18 hours or more, including one entry for 22.85 hours in a single day and one entry for 23.85 hours in a single day"). After the Court pointed this out in the February 18, 2014 Order, Plaintiff's counsel continues to defend his billing and insists that the Court erred in deeming such billing excessive. "Counsel for the prevailing party is expected to exercise good billing judgment by making a good faith effort to exclude hours that are excessive, redundant, or otherwise unnecessary." Cortes v. Metro. Life Ins. Co., 380 F. Supp. 2d 1125, 1132 (C.D. Cal. 2005) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Such billing by Little "indicates a gross lack of billing judgment," and Plaintiff's counsel's subsequent conduct suggests not only failure but also refusal to fulfill counsel's duty. Metro Data Sys., Inc. v. Durango Sys., Inc., 597 F. Supp. 244, 247 (D. Ariz. 1984).

Plaintiff further argues that the Court improperly considered Little's extensive experience in civil rights litigation in conjunction with this case involving only typical civil rights claims without any novel, complex, or difficult legal issues in assessing the reasonableness of Little's recorded hours. Plaintiff provides no authorities for this argument. Further, Plaintiff apparently agrees that this case in fact did involve only typical civil rights claims without any novel, complex, or difficult legal issues.

A motion for reconsideration is not a mechanism for the parties "to ask the court to rethink what the court has already thought through—rightly or wrongly." Rezzonico, 32 F.Supp.2d at 1116. "To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Westlands Water Dist., 134 F.Supp.2d at 1131. Plaintiff has failed to do so with respect to this Court's assessment of Little's recorded hours.

iii. Chechelnik and Garcia's Hours

Chechelnik had been admitted to the bar for nine months when this case began, and Garcia is a legal assistant, while Little is an experienced attorney with his own practice. This Court perceived Chechelnik and Garcia as working under Little's supervision on this case. To the extent that that is inaccurate, or that Chechelnik and Garcia recorded and submitted their hours worked in this case without supervision or approval from Little, the Court agrees that Chechelnick and Garcia's hours should be assessed separately from those of Plaintiff's lead counsel for reasonableness.

3. Prejudice to Civil Rights and/or Solo Practitioners

Plaintiff argues that this Court's award of attorney's fees and costs is prejudicial and "relegates plaintiffs' civil rights counsel to the status of second class citizens of the legal community[.]" (Doc. 166 p. 15). Plaintiff fails to show how this Court's award of $201,871.36 to two solo practitioners with "no employees or support staff" as overhead costs is prejudicial or discourages capable counsel from taking on civil rights cases. Id. Plaintiff's counsel's disappointment in the award is insufficient to render it prejudicial, manifestly unjust, or clearly erroneous. Turner, 338 F.3d at 1063. Rather, this Court's assessment of Plaintiff's counsel's billing hours reinforces the Supreme Court's admonition that "[c]ounsel for the prevailing party is expected to exercise good billing judgment by making a good faith effort to exclude hours that are excessive, redundant, or otherwise unnecessary." Cortes, 380 F. Supp. 2d at 1132 (citing Hensley, 461 U.S. at 434).

CONCLUSION AND ORDER

For the reasons discussed above, the Court

1. DENIES Plaintiff Isaac Miller's motion for relief from judgment as to the February 18, 2014 award of attorney's fees and costs as to Plaintiff's lead counsel Kevin Little; and
2. ORDERS Plaintiff's counsel to file no later than May 2, 2014 a written verification that Alex Chechelnick and Lorena Garcia submitted their billing records in this case without supervision or approval from Kevin Little. If Plaintiff's counsel fails to file such verification in accordance with this Court's order, this Court DENIES in its entirety Plaintiff's motion for relief from judgment as to the February 18, 2014 award.

Lawrence J. O'Neill

UNITED STATES DISTRICT JUDGE