Opinion
Civil Action No. 98-2397-KHV
February 25, 2000
MEMORANDUM AND ORDER
On August 30, 1999, the Court struck as unconstitutional the sign ordinance of the City of Merriam, Kansas. See Memorandum And Order (Doc. #28). This matter is before the Court on Plaintiff's Motion For Attorney's Fees (Doc. #34) filed September 10, 1999. For reasons set forth below, the Court sustains the motion in part and awards plaintiff $17,511.50 in attorneys' fees and $335.35 in expenses.
I. Authority To Award Attorneys' Fees
Section 1988 provides that the Court in its discretion may allow the prevailing party to recover attorneys' fees in any action or proceeding to enforce 42 U.S.C. § 1981, 1981a, 1982, 1983, 1985, 1986, Title IX, Title VI, the Religious Freedom Restoration Act or the Violence Against Women Act. See 42 U.S.C. § 1988. Defendant argues that the Court does not have authority to award attorneys' fees under Section 1988 except to prevailing parties who specifically plead one of the statutes listed in Section 1988. The Court disagrees. Section 1988 "is concerned with the substance of a prevailing party's action, rather than the form in which it is presented." Americans United For Separation of Church and State v. School Dist. of Grand Rapids, 835 F.2d 627, 631 (6th Cir. 1987). "Mere failure to plead section 1983 `is not fatal to a claim for attorney's fees if the pleadings and evidence do present a substantial . . . claim for which § 1983 provides a remedy.'" Haley v. Pataki, 106 F.3d 478, 481 (2d Cir. 1997) (quoting Americans United, 835 F.2d at 631); see Consolidated Freightways Corp. v. Kassel, 730 F.2d 1139, 1142 (8th Cir.) ("If § 1983 would have been an appropriate basis for relief, then [plaintiff] is entitled to attorney's fees under § 1988 even though relief was actually awarded on another ground."), cert. denied, 469 U.S. 834 (1984); see also Maher v. Gagne, 448 U.S. 122, 129 n. 11 (1980) (Section 1988 intended to apply "in any action for which § 1983 provides a remedy"). Defendant does not contest plaintiff's argument that it has presented a substantial claim for which Section 1983 provides a remedy. Accordingly, the Court has authority to award fees in this case.
In a recent case, the City of Lenexa, Kansas argued that Outdoor Systems was not entitled to attorneys' fees because it did not specifically plead Section 1983. Outdoor Systems did not respond to that argument, nor did it explain how the action fell within the scope of Section 1983. The Court rejected its request for attorneys' fees, based on that argument and several alternative grounds. See Outdoor Sys., Inc. v. City of Lenexa, Kan., No. 98-2534-KHV, 1999 WL 1063045 (D.Kan. Nov. 10, 1999). To the extent that the City of Lenexa case may be read to imply that to recover attorneys' fees, plaintiff must expressly plead a statute listed in Section 1988, the Court declines to follow that reasoning.
II. Outdoor Systems As Prevailing Party
Plaintiff has established that it is a "prevailing party" under 28 U.S.C. § 1988. "[P]laintiffs may be considered `prevailing parties' for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The Tenth Circuit recently explained the framework to determine if a plaintiff has achieved sufficient success to recover attorneys' fees. See Brandau v. State of Kan., 168 F.3d 1179, 1181 (10th Cir.) (citing Farrar v. Hobby, 506 U.S. 103, 121-22 (1992) (O'Connor, J., concurring)), cert. denied, 119 S.Ct. 1808 (1999). This framework includes analysis of three factors: (1) the difference between the judgment recovered and the judgment sought; (2) "the significance of the legal issue on which the plaintiff prevailed;" and (3) "the public purpose served" by the litigation. Brandau, 168 F.3d at 1181 (quoting Farrar, 506 U.S. at 122 (O'Connor, J., concurring)); see Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997).
The first and most critical factor in determining the reasonableness of a fee award is the degree of success obtained. See Phelps, 120 F.3d at 1132 (citing Farrar, 506 U.S. at 114). Outdoor Systems alleged that the Merriam city ordinance was unconstitutional because (1) it favored commercial speech over noncommercial speech, (2) it impermissibly distinguished between types of noncommercial speech based on content, (3) it allowed the Community Development Committee, the City Zoning Administrator, and other city officials to remove signs in the exercise of unfettered discretion, and (4) it constituted an unconstitutional taking of property without due process. Except for the takings claim, plaintiff prevailed on each challenge. In addition, the Court struck the entire Merriam sign ordinance. The Court overruled plaintiff's request, however, that defendant be enjoined from denying plaintiff's applications for 13 specific signs. See Transcript of Hearing [on October 12, 1999] (Doc. #61) filed November 12, 1999 at 6-7, 12-13. Plaintiff nevertheless prevailed on nearly every issue raised in its complaint.
Next, the Court evaluates the significance of the legal issues on which plaintiff prevailed. See Brandau, 168 F.3d at 1181. Plaintiff prevailed on several constitutional challenges to the sign ordinance. The First Amendment rights implicated in this case certainly involve significant legal issues.
Finally, the Court considers the public purpose served by plaintiff's success. See Phelps, 120 F.3d at 1132 (citing Farrar, 506 U.S. at 121-22) (O'Connor, J., concurring)). This factor examines whether the judgment deters future lawless conduct as opposed to merely "occupying the time and energy of counsel, court, and client." Phelps, 120 F.3d at 1132 (quoting Farrar, 506 U.S. at 121-22 (O'Connor, J., concurring)). Plaintiff successfully challenged the various restrictions on speech contained in the ordinance — "an action which itself indicates a significant public interest in this case and the statute in question." Phelps, 120 F.3d at 1133. Moreover, defendant amended its ordinance shortly after the Court's Memorandum and Order (Doc. #28) filed August 30, 1999.
Based upon the above factors, the Court concludes that plaintiff is a prevailing party and that as a result, it is entitled to attorneys' fees and expenses.
III. Fee Calculation
"To determine a reasonable attorneys fee, the district court must arrive at a `lodestar' figure by multiplying the hours plaintiff's counsel reasonably spent on the litigation by a reasonable hourly rate." Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995). The "lodestar" figure is then subject to upward or downward adjustment. "[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1249-50 (10th Cir. 1998) (citations omitted).
A. Reasonable Hours
The first step in calculating the lodestar is to determine the number of hours counsel for plaintiff reasonably expended on the litigation. Case, 157 F.3d at 1249. "[T]he burden is on the prevailing party to show that the hours claimed are reasonable." Deters v. Equifax Credit Info. Servs., No. 96-2212-JWL, 1998 WL 12119, at *3 (D.Kan. Jan. 6, 1998) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)). Attorneys normally do not bill all hours expended in litigation to a client, and "an applicant should exercise `billing judgment' with respect to a claim of the number of hours worked." Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1202 (10th Cir. 1998) (quoting Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996)). To show billing judgment, "[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary . . . [and the] district court has a corresponding obligation to exclude hours not `reasonably expended' from the calculation." Id.
Defendant first asserts that many of the submitted hours are duplicative because plaintiff chose to be represented by two law firms with lead counsel in Atlanta and local counsel in Kansas City. The Court disagrees. Plaintiff's decision to hire lead counsel in Atlanta was reasonable in light of counsel's experience in similar cases. Several documents were reviewed by local counsel, forwarded to lead counsel, and then reviewed again by lead counsel. Moreover, several of the telephone conferences between counsel in Atlanta and Kansas City appear to represent discussions on the status of the case. The duplication revealed, however, is not excessive; it merely reflects discussions between two attorneys representing the same party. Moreover, it appears that plaintiff necessarily incurred such time in its efforts to comply with D. Kan. Rule 83.5.4(c). The fact that one attorney was in Atlanta and the other in Kansas City does not appear to have inflated the time spent by either attorney. The Court declines to reduce plaintiff's fees on this basis.
Second, defendant objects to time counsel spent for public relations, unneeded research, generic "litigation" work and unrelated matters. Plaintiff has offered no explanation for these items. The Court finds that the time spent on these matters should be excluded because plaintiff has failed to show that the time contributed to its case. See Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 619 (9th Cir. 1993). Accordingly, the Court will reduce the time counsel spent by 6.5 hours (1.2 for Leimer (law clerk)), 1.4 for Johnson (law clerk), .3 for Edward R. Spalty, .8 for David H. Flint, and 2.8 for Mark W. Forsling). In addition, the Court will reduce the time Forsling spent drafting a motion for attorneys' fees on August 13, 1999 (1.1 hrs.), two weeks before the Court had ruled on the summary judgment motions. The entry apparently refers to briefing related to plaintiff's motion for attorneys fees filed on August 6, 1999 in the case of Outdoor Sys. v. City of Lenexa, Kan., No. 98-2534-KHV.
Third, defendant maintains that the fees incurred by plaintiff were not reasonable because Forsling, a partner and attorney since 1980, spent the most time on plaintiff's briefs. Based on his prior experience with the issues involved in this case, however, Forsling was able to prepare the summary judgment briefing in a limited number of hours. The amount of time likely would have been significantly higher if he had utilized associates to draft the briefs. The Court finds that counsel's primary use of partners to handle the briefing was reasonable in this particular case.
Fourth, defendant argues that plaintiff should not be awarded the fees which it incurred in filing post-judgment motions that were abandoned and unnecessary. The Court agrees. The motions did not achieve any positive result for plaintiff. In fact, after expending significant judicial resources considering the motions, the Court announced that it intended to modify its previous order and judgment, in large part, in favor of defendant. Thus the result of the motions, even if plaintiff had pursued them, likely would have been unfavorable to plaintiff. Accordingly, the Court declines to award plaintiff any fees or expenses related to these motions.
On October 4, 1999, the Court stayed enforcement of its Memorandum and Order (Doc. #28) and Judgment (Doc. #29), both filed August 30, 1999, pending its ruling on plaintiff's post-judgment motions and defendant's motion to stay. See Order (Doc. #48) filed October 4, 1999. At a hearing on October 12, 1999, the Court announced that it intended to modify its previous ruling and strike only the following provisions of the Merriam Sign Ordinance: Sections 6-103(B)(2), 6-103(F)(1), 6-104(H), 6-104(I), 6-104(N), 6-105, 6-107(A), 6-201(A), 6-202(A) and 6-203(A). See Transcript Of Hearing (Doc. #61) filed November 12, 1999 at 21-22. The Court also announced that it intended to modify its ruling so that the City of Merriam was enjoined from enforcing Sections 6-103(A)-(F)(1), (H), 6-104(H), 6-104(I), 6-104(N), 6-105, 6-106(B), 6-107(A), 6-201(A), 6-202(A), 6-203(A), and Section 6-201(D) to prohibit signs less than 32 square feet. See id. Plaintiff, apparently unsatisfied with the Court's proposed ruling, withdrew its motions on the day its subsequent briefing was due. Although the Court has never lifted the stay of the enforcement of the Memorandum and Order or Judgment, defendant has pursued its appeal.
Plaintiff has also included appeal-related fees in its request. Plaintiff must first apply to the Tenth Circuit for such fees. See Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993). If the Tenth Circuit "decides that it is appropriate to award such fees, [it] may then remand to the district court to determine an award of reasonable fees." Id. This Court does not have jurisdiction to consider plaintiff's request for appeal-related fees and expenses at this time. See Baty v. Williamette Indus., Inc., No. 96-2181-GTV, 1999 WL 459345, at *2 (D.Kan. June 30, 1999).
Plaintiff is entitled, however, to fees for several other post-judgment matters. First, plaintiff responded to defendant's motion to stay enforcement of the judgment. Plaintiff's opposition to defendant's motion for a stay was six pages and raised relatively straightforward issues. Plaintiff also filed a four-page affidavit in support of its opposition brief. See Affidavit of Randy Jackson (Doc. #43) filed September 21, 1999. The Court finds that the time spent by counsel on the opposition brief and affidavit was reasonable (Forsling 2.0, Spalty 1.1, Scott 3.9), and that counsel is entitled to a portion of its time preparing for and attending oral argument on the same issue (Flint 3.0, Spalty 1.0). See supra note 4. Plaintiff is also entitled to the time which its counsel spent preparing the fee motion, affidavits and brief. The Court finds that the time spent on this matter by counsel and the paralegal was reasonable (Forsling 1.7, Spalty 2.2, Graham 9.5, Jelinek 3.0). See id. Finally, plaintiff is entitled to time which counsel spent reviewing the Court's Memorandum and Order (Doc. #28) filed August 30, 1999 and preparing a strategy for responding to defendant's motion to stay. The time spent by counsel on this matter also was reasonable (Flint 1.5, Forsling 2.0, Spalty 1.2). See supra note 4.
Based on the billing statements submitted by plaintiff, the Court has attempted to ascertain the precise amount of time spent by each individual for specific tasks. To the extent that the Court's calculations underestimate the actual time spent by these individuals, the Court finds that the additional time is not recoverable because counsel failed to provide contemporaneous documentation and additional time for the tasks is not reasonable.
The Court notes that the term "reasonable" in the hourly rate context is somewhat of a misnomer. The term "seems to imply that, by definition, any other rate actually charged to a client is somehow unreasonable or unfair. That, of course, is not the case. The factors that go into the setting of rates by attorneys are likely to differ based on numerous considerations, and private parties are certainly entitled to strike whatever bargain on rates that proves mutually agreeable." Medlock v. Ortho Biotech, Inc., No. 94-2317-JWL, 1997 WL 51216, at *2 n. 3 (D.Kan. Jan. 14, 1997), aff'd, 164 F.3d 545 (10th Cir.), cert. denied, 120 S.Ct. 48 (1999). Thus the Court's adoption of a "reasonable hourly rate" below that suggested by counsel is not a criticism of the billing rates of counsel.
In setting the hourly rate, "the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees." Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). A reasonable hourly rate comports with rates "prevailing in the community for similar services for lawyers of reasonably competent skill, experience, and reputation." Blum, 456 U.S. at 896 n. 11. "A district judge may turn to her own knowledge of prevailing market rates as well as other indicia of a reasonable market rate." Metz v. Merrill Lynch, Pierce, Fenner Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (citation omitted).
Schreeder, Wheeler Flint, LLP represented plaintiff as lead counsel. David H. Flint of the firm has represented outdoor advertisers in First Amendment and regulatory matters since he graduated from law school in 1971. Mark W. Forsling is a 1980 graduate and has represented outdoor advertisers in First Amendment and regulatory matters for 15 years. Jason W. Graham is a 1997 graduate. Armstrong, Teasdale LLP represented plaintiff as local counsel. Edward R. Spalty of the firm graduated from law school in 1973 and has practiced in federal and state courts in Kansas since 1975. In addition, Scott, King, Fulghum, Leimer and Twellman of the firm worked on the case.
Plaintiff seeks the following hourly rates:
Flint $300 Forsling $240 (1999), $230 (1998) Graham $130 Spalty $265 (1999), $250 (1998) Scott $175 King $160
Plaintiff also proposes hourly rates for Fulghum ($210), Leimer ($185), Twellman ($175) and Wheat ($110). Based on the Court's ruling that none of the time spent by these attorneys is recoverable, it need not decide a reasonable rate for these attorneys.
To determine a reasonable rate, the Court focuses on the rates of "lawyers of comparable skill and experience." Ellis, 163 F.3d at 1204 (citations omitted). Plaintiff's counsel provided no evidence to show that attorneys with similar experience and skill receive comparable fees to those that plaintiff proposes. After considering the skill, experience and reputation of counsel and the undersigned's own knowledge of the prevailing market rates, the Court finds that the following hourly rates are reasonable: Flint ($165), Forsling ($155), Graham ($120), Spalty ($155), Scott ($120), King ($120), law clerks ($70) and paralegals ($70). See Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 1999 WL 1292912, at *5 (D.Kan. Dec. 30, 1999) (prevailing rate in relevant community appears to be $155 per hour for lead counsel and $120 per hour for other attorneys); Glover v. Heart of Am. Mgmt. Co., No. 98-2125-KHV, 1999 WL 450895, at *8-9 (D.Kan. May 5, 1999) ($120 per hour for attorney with three years experience; $90 per hour for attorney with two years experience; $60 per hour for paralegal); Cadena v. Pacesetter Corp., No. 97-2659-KHV, 1999 WL 450891, at *5 (D.Kan. Apr. 28, 1999) ($155 per hour for lead counsel with eight years relevant experience; $120 per hour for attorneys with six and seven years experience; $58 per hour for paralegal); Hampton v. Dillard Dep't Stores, Inc., 1998 WL 724045, at *2 (D.Kan. Sept. 24, 1998) ($55 per hour for law clerk and $65 per hour for paralegal).
C. Lodestar Calculation
Based on the numbers stated above, the Court calculates the lodestar as follows:
Attorney Hrs. Requested Hrs. Awarded Hourly Rate Total
Flint 27.5 5.5 $165.00 $907.50 Forsling 88.5 53.4 $155.00 $8,277.00 Graham 19.5 10.5 $120.00 $1,260.00 Wheat .2 0 $ — $0.00 Spalty 56.1 36.8 $155.00 $5,704.00 Scott 14.4 6.7 $120.00 $804.00 Fulghum 18.7 0 $ — $0.00 Twellman 4.0 0 $ — $0.00 King 1.1 1.1 $120.00 $132.00 Leimer (attorney) 17.7 0 $ — $0.00 Leimer (law clerk) 2.3 1.1 $70.00 $77.00 Johnson (law clerk) 1.4 0 $ — $0.00 Jackson (paralegal) 2.0 2.0 $70.00 $140.00 Jelinek (paralegal) 5.0 3.0 $70.00 $210.00
$17,511.50
D. Adjustment Of Lodestar
Plaintiff asks the Court to adjust the lodestar upward based on extraordinary success. Although upward adjustment is permissible, the Supreme Court has explained that many factors that previously arguably supported an enhancement, such as the novelty and complexity of issues, the special skill and experience of counsel, and the quality of representation and results obtained, are "presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award." Blum v. Stenson, 465 U.S. 886, 898-900 (1984). Upward adjustments are permissible only in rare and exceptional cases. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).
The Court rejects plaintiff's request for an upward adjustment. The issues in this case were not so complex as to justify an enhancement, and the Court has considered the experience and expertise of counsel in determining their hourly rates. Cf. Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997) (enhancing hourly rate based on complexity of issues and attorney's experience and expertise in field). Moreover, plaintiff did not achieve its desired result — an injunction which prohibited defendant from denying plaintiff's applications for 13 specific signs. The Court concludes that no enhancement of the lodestar is warranted.
IV. Expenses
In addition to attorneys' fees, the prevailing party is entitled to recover reasonable expenses that are usually itemized and billed separately, as long as the expenses are reasonable. See Sussman v. Patterson, 108 F.3d 1206, 1213 (10th Cir. 1997).
Plaintiff seeks to recover $20.03 in long-distance calls, $55.47 for faxes, $142.45 for shipping costs, and $31.40 for overnight delivery expenses incurred by counsel before the Court entered judgment in August 1999. Defendant claims that plaintiff incurred these expenses only because it chose to be represented by two law firms with one in Atlanta and one in Kansas City. As explained above, plaintiff's choice to retain lead counsel from Atlanta was reasonable. The Court also finds that the long distance, fax, shipping and overnight delivery expenses incurred by counsel were reasonable and awards $249.35.
As explained above, the Court has excluded most of the time spent by counsel for post-judgment matters. Accordingly, the Court will not award any post-judgment expenses incurred by counsel.
Plaintiff seeks $86.00 for messenger services. Defendant has not raised any specific objection to this expense. The Court finds that the expense is reasonable and awards $86.00.
Finally, plaintiff seeks $453.38 for copies and $170.00 for filing fees. These expenses are considered "costs" which are taxed by the clerk against the losing party. See 28 U.S.C. § 1920. Pursuant to Rule 54(d)(1), costs other than attorneys' fees are allowed as a matter of course to the prevailing party unless the Court directs otherwise. D. Kan. Rule 54.1(a) provides that the party entitled to recover costs shall file a bill of costs with the clerk within 30 days after the time for appeal has expired or receipt by the clerk of an order terminating the action on appeal. The instant action currently is on appeal and plaintiff has not yet filed its bill of costs with the clerk. If plaintiff prevails on appeal, it may file a bill of costs with the clerk for its copying and filing fee costs.
IT IS THEREFORE ORDERED that Plaintiff's Motion For Attorney's Fees (Doc. #34) filed September 10, 1999, be and hereby is SUSTAINED in part and OVERRULED in part. The Court awards plaintiff $17,511.50 in attorneys' fees and $335.35 in expenses.