Opinion
6:20-cv-01265-MK
07-20-2021
HASHEEM BOUDJERADA; KELSIE LEITH-BOWDEN; DAMON COCHRAN-SALINAS; ERIN GRADY; TYLER HENDRY; and and KIRTIS RANESBOTTOM, Plaintiffs, v. CITY OF EUGENE, a municipal corporation; SARAH MEDARY; SAMUEL STOTTS; BO RANKIN; and DOES 1-20, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff Kelsie Leith-Bowden's motion for attorney fees and expenses in the amount of $67, 676.22 pursuant to 42 U.S.C. § 1988. See Pl. Bowden's Mot. Atty Fees and Expenses 1, ECF No. 31 (“Pl.'s Mot.”). Defendant City of Eugene (“the City”) agrees that Leith-Bowden is entitled to recover attorney fees, however, they urge the Court to award “no more than $10, 692.12 for 27.41 hours of work and $400 in costs.” Def's. Resp. and Obj. to Pl. Bowden's Mot. Atty Fees and Expenses 2, ECF No. 40 (“Def.'s. Opp'n”). For the reasons set forth below, the Court should GRANT Leith-Bowden's motion IN PART and award an amount of $58, 741.05 in attorney fees and $400 in costs.
BACKGROUND
In the wake of the tragic killings of Breonna Taylor and George Floyd in the summer of 2020, individuals flooded town squares and public streets across the United States in support of Black lives and in protest of systemic racism in American policing. Eugene, Oregon was also a locus for these calls for reform. According to the complaint, on May 31, 2020, at approximately 8:20 p.m., unidentified Doe Defendants fired chemical and impact munitions at unarmed, nonviolent protestors that included Plaintiff Leith-Bowden near the intersection of Olive Street and West 10th Avenue. Compl. ¶ 41-42.
The Court notes that Plaintiffs filed an amended complaint shortly after the City's offer of judgment was accepted by Leith-Bowden. See ECF No. 19 (offer of judgment); ECF No. 29 (amended complaint). All references to specific paragraphs within this Findings and Recommendation (“F&R”) refer to the original complaint (ECF No. 1) as that was the operative complaint when Leith-Bowden accepted the City's offer of judgment.
After a Doe Defendant announced, “Stay out of the roadway or gas will be used, ” Plaintiff Leith-Bowden was struck with impact munitions, resulting in injuries to her midsection:
(Image Omitted)
Compl. ¶ 43. While attempting to leave the scene, Doe Defendants continued to fire chemical and impact munitions, which struck Leith-Bowden in the back of her leg:
(Image Omitted)
Compl. ¶ 44. Despite the less-than-lethal use of force, Leith-Bowden was never placed under arrest and, as a result from the injuries, was ultimately terminated from one of her jobs and had her hours reduced at another. Id. at ¶ 45. Leith-Bowden, along with seven other Plaintiffs, filed a civil complaint in this Court stemming from the events surrounding the protests. ECF No. 1.
In January 2021, Leith-Bowden accepted the City of Eugene's Offer of Judgment in which the City agreed to pay Leith-Bowden $61, 000.01, plus costs and reasonable attorney fees contingent upon dismissing her claims with prejudice. ECF No. 19. Leith-Bowden moved for attorney fees approximately two months later. ECF No. 31.
Leith-Bowden initially sought to recover fees for: attorney Lauren Regan in the amount of $19, 221.42 for 46.32 hours billed; attorney Marianne Dugan in the amount of $31, 174.80 for 75.12 hours billed; attorney Cooper Brinson in the amount of $14, 080.00 for 64 hours billed; legal assistant fees in the amount of $2, 800 for 16 hours billed; and $400 in litigation expenses. See Regan Decl. ¶¶ 11, 15 (requesting reimbursement for 46.32 attorney hours at $415/hour), ECF No. 32; Dugan Decl. ¶ 12 (requesting reimbursement for 75.12 attorney hours at $415/hour), ECF No. 33; Brinson Decl. ¶¶ 9-10 (requesting reimbursement for 64 attorney hours at $220/hour), ECF No. 36; Regan Decl. Ex. D, (requesting reimbursement for 16 legal assistant hours at $175/ hour), ECF No. 32-4; Regan Decl. ¶ 20 (requesting reimbursement of $400 filing fee), ECF No. 32. In her reply to the City's objections to her fee request, Leith-Bowden concedes that some of the hours for which she initially sought are not compensable. Pl.'s Reply in Support Pet. Atty Fees 2, ECF No. 45 (“Pl.'s Reply”).
STANDARD
The Supreme Court has explained that “the lodestar approach” is “the guiding light” when determining a reasonable fee under federal fee-shifting statutes. Perdue v. Kenny A., 559 U.S. 542, 551 (2010). Under the lodestar method, the court first determines the appropriate hourly rate for the work performed and then multiplies that amount by the number of hours properly expended in doing the work. Id. Although “in extraordinary circumstances” the amount produced by the lodestar calculation may be increased, “there is a strong presumption that the lodestar is sufficient.” Id. at 556.
The party seeking an award of fees bears “the burden of documenting the appropriate hours expended in the litigation, and [is] required to submit evidence in support of those hours worked.” United Steelworkers of Am. v. Ret. Income Plan for Hourly-rated Emps. of Asarco, Inc., 512 F.3d 555, 565 (9th Cir. 2008) (quotations omitted). When “determining the appropriate number of hours to be included in a lodestar calculation, the district court should exclude hours ‘that are excessive, redundant, or otherwise unnecessary.'” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
To determine the lodestar amount the court may consider the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) any time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997, 1007 n.7 (9th Cir. 2002) (quotation omitted). A rote recitation of the relevant factors is unnecessary as long as the court adequately explains the basis for its award of attorney fees. McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th Cir. 1995).
A “strong presumption” exists that the lodestar figure represents a “reasonable fee, ” and it should therefore only be enhanced or reduced in “rare and exceptional cases.” Pennsylvania v. Del Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). In determining the reasonableness of fees, the court is not required to respond to each specific objection. Gates v. Deukmajian, 987 F.2d 1392, 1400 (9th Cir. 1992). Rather, all that is required is a “concise but clear” explanation of reasons for the fee award. Id. Finally, the Court begins its inquiry with the acknowledgment that “a court's discretion to deny fees under § 1988 is very narrow and that fee awards should be the rule rather than the exception.” Herrington v. Cty. of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989)
DISCUSSION
I. Reasonableness of Hourly Rate
Courts apply prevailing market rates for purposes of § 1988 fee determinations. Blum v. Stenson, 465 U.S. 886, 895, n.11 (1984). Prevailing market rates are those that the local legal market would pay for a case of this nature to a lawyer of comparable skill, experience, and reputation to a plaintiff's counsel of record. Id. at 897. “This District considers the most recent Oregon State Bar Economic Survey . . . as its ‘initial benchmark' in determining whether hourly billing rates are reasonable.” State Farm Fire & Cas. Co. v. Sellers, No. 3:18-cv-00517-JR, 2018 WL 5793850, at *2 (D. Or. Nov. 5, 2018) (citation omitted). “If the rate requested exceeds the average rate reported in the OSB Survey, the burden is on the prevailing party to justify that higher rate.” Id. (citation omitted).
The City does not dispute the reasonableness of hourly rates for attorneys Regan and Brinson, who seek rates of $415/hour and $220/hour respectively. Accordingly, the Court should find those rates reasonable. The City does, however, assert that Ms. Dugan's hourly rate should be reduced to $356.27 rather than the $415 rate at which she billed. However, other than citing another district court decision that found Ms. Dugan was entitled to a different rate, the City makes no meaningful argument as to why Ms. Dugan should not receive the same $415/hour rate of Ms. Regan-who has four fewer years of practice experience. Def.'s Resp. and Obj. to Pl.'s Mot. Atty Fees 6-7, ECF No. 40 (“Def.'s Obj”) (citing Wilkens v. Edwards, No. 6:14-cv-00907-MC, 2016 WL 1271663, at *2 (D. Or. Mar. 29, 2016)). As such, the Court should find attorney Dugan's requested hourly rate of $415/hour reasonable.
The Court should additionally find that the paralegal rate of $175 in this case is reasonable. See G&G Closed Cir. Events, LLC v. Rojas, No. 6:20-cv-01603-JR, 2021 WL 1342742, at *1 (D. Or. Apr. 9, 2021) (finding “paralegal rate of $175 per hour” reasonable because it did “not exceed the average rate for first-year associates”); see also Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989) (“Clearly, a ‘reasonable attorney's fee' cannot have been meant to compensate only work performed personally by members of the bar.”)
II. Reasonableness of Hours Expended
The parties vehemently dispute the reasonable number of hours Plaintiffs' attorneys billed in this case. After the concessions outlined in her reply, Leith-Bowden asserts that she is entitled to recover 179.87 hours:
Timekeeper
Leith-Bowden's Proposed Hours
Lauren Regan
35.29
Marianne Dugan
64.58
Cooper Brinson
64
Angelica Munoz
16
Total
179.87
Regan Decl. Ex. B, ECF No. 32-2; Regan Decl. Ex. D, ECF No. 32-4; Dugan Decl. Ex. B, ECF No. 33-2; Brinson Decl. ¶ 10, ECF No. 36. The City, by contrast, asserts that Leith-Bowden is entitled to no more than 27.41 hours:
Timekeeper
City's Proposed Hours
Lauren Regan
15.78
Marianne Dugan
11.63
Cooper Brinson
0
Angelica Munoz
0
Total
27.41
Def.'s Obj. 6, ECF No. 40.
The City first argues Leith-Bowden's hours should be reduced because her time entries are not sufficiently detailed. Def.'s Obj. 6-7. Although not a model of clarity, the attorney time entries sufficiently identify the corresponding task such that the Court is able to appropriately review the time billed. Accordingly, the Court declines to reduce the awards on that basis.
The City next asserts a reduction in hours is warranted because the requests “conflates hours incurred on unsuccessful claims for a successful plaintiff and hours incurred on behalf of separate unsuccessful clients.” Def.'s Obj. 7. The City proposes that, because Leith-Bowden is only one of seven named plaintiffs in the original complaint, the Court should reduce the award by that fraction-i.e., award Leith-Bowden 1/7th of her requested hours. The Court finds such an imprecise reduction inappropriate given that the initial complaint sought to impose municipality liability for excessive use of force based in part on events that included injuries sustained by Leith-Bowden. In other words, at least some of Leith-Bowden's claims were interwoven with other Plaintiffs in this lawsuit making the City's proposed reduction inappropriate. See Compl. ¶¶ 106-16, 135-40, ECF No. 1; Hensley, 461 U.S. at 438 (“Given the interrelated nature of the facts and legal theories in this case, the District Court did not err in refusing to apportion the fee award mechanically on the basis of respondents' success or failure on particular issues.”).
The Court notes, however, that it will hold Plaintiffs' counsel to their representation that they will not object to “the court reduc[ing] any future fee award in this lawsuit by the amount award[ed] to Ms. Bowden for her claims in this case.” Pl.'s Reply 2, ECF No. 45.
Finally, the City asserts that the declarations submitted by Leith-Bowden's experts “failed to explain their opinions” and “were inconsistent with prior sworn declarations submitted to this Court.” Def.'s Obj. 7. The Court is unpersuaded for at least two reasons. First, the Court finds that the expert opinions submitted on behalf of Leith-Bowden are thorough, cogent explanations of the fees requested in this case. Second, beyond citing the City's own expert who disagreed with Leith-Bowden's experts' conclusions, the City has not articulated what about any purported inconsistency relates to specific lodestar factors that would justify the dramatic reduction they seek in this case. As such, the Court declines to reduce Leith-Bowden's hours on this basis.
At oral argument, the City raised new contentions as to why the number of hours billed in this case should be reduced. As a threshold matter, the Court need not consider arguments raised for the first time at oral argument. See Makaeff v. Trump Univ., LLC, 2014 WL 2743244, at *4 n.2 (S.D. Cal. June 17, 2014) (“the Court need not consider issues raised for the first time during oral argument”). The Court, however, briefly addresses why, even if the Court were to consider those new arguments, reducing the award in this case is not justified.
The City's argument that the award here should be reduced in light of Houston v. City of Eugene, 6:20-cv-01180-AA, fails because the amount paid by the City in that case was a lump sum payment, which forecloses any attempt at disaggregating the amount paid in attorney fees. To the extent the City argues Plaintiffs' staffing decisions resulted in duplicitous work, the Ninth Circuit has explained that, a “district court may not set the fee based on speculation as to how other firms would have staffed the case” and that court's must keep “in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees.” Moreno, 534 F.3d at 1112-14.
The City's assertion that the detail of the complaint was unreasonable given federal notice pleading standards lacks merit for several reasons. First, the Court declines to speculate what level of detail would have been sufficient to attain an offer of judgment similar to the one proffered by the City in this case. Second, given the frequency with which the defendants in federal court move to dismiss complaints for failure to state a claim, plaintiffs have no choice but to come “loaded for bear” when filing civil rights cases.
Finally, the Court notes that this lawsuit is the quintessential type of case Congress sought to incentivize when it passed the fee shifting statutes:
Congress thus recognized that private enforcement of civil rights legislation relies on the availability of fee awards: “If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.”Moreno, 534 F.3d at 1111 (quoting S.Rep. No. 94-1011, at 2 (1976), as reprinted in 1976 U.S.C.C.A.N. 5908, 5910) (brackets omitted)); see also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (“If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.”).
Here, based on the time, labor, and skill, the contingent nature of the fees at issue, as well as the experience and reputation of Plaintiff's counsel and the results obtained, the Court should find that counsel are entitled to recover their requested fees less the amount they concede is not compensable. Accordingly, the Court should conclude that Attorneys Regan and Dugan may recover fees at the rate of $415/hour for 35.29 and 65.58 hours respectively; Attorney Brinson may recover fees at the rate of $220/hour for 64 hours; and that Ms. Munoz may recover fees at the rate of $175/hour for 16 hours. Accordingly, Leith-Bowden is entitled to an award of attorney fees in the amount of $58, 741.05.
($415 x 35.29 = $14, 645.35) + ($415 x 65.58 = $27, 215.70) + ($220 x 64 = $14, 080) + ($175 x 16 = $2, 800) = $58, 741.05.
III. Costs
Leith-Bowden seeks to recover $400 in costs, which reflects the amount of the filing fee in this case. Federal Rule of Civil Procedure 54(d)(1) provides: “Unless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” Rule 54(d) creates a presumption in favor of awarding costs to a prevailing party-i.e., “the losing party must show why costs should not be awarded” in any particular case. Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). Title 28 section 1920 of the United States Code allows a federal court to tax specific items as costs against a losing party pursuant to Federal Rule of Civil Procedure 54(d)(1). Section 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation for court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
The court must limit an award of costs to those defined in 28 U.S.C. § 1920 unless otherwise provided for by statute. Grove v. Wells Fargo Fin. Ca., Inc., 606 F.3d 577, 579-80 (9th Cir. 2010).
Here, the filing fee is plainly compensable under the terms of the statute. As such, Leith- Bowden is entitled to $400 in costs.
RECOMMENDATION
For the reasons explained above, the Court should GRANT IN PART Leith-Bowden's motion for attorney fees and costs (ECF No. 31) and award an amount of $58, 741.05 in attorney fees and $400 in costs.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).