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Grisham v. Municipality of Anchorage

United States District Court, D. Alaska

February 20, 2019

David Grisham and Tina Watson, Plaintiffs,
v.
Municipality of Anchorage; John Rodda, in his official capacity as Anchorage Parks and Recreation Director; and John Casselman, individually, and in his official capacity as police officer for the Whittier Police Department, Defendants.

          ORDER AND OPINION [RE: MOTION AT DOCKET 44]

          JOHN W. SEDWICK SENIOR JUDGE.

         I. MOTION PRESENTED

         At docket 44, with a memorandum in support at docket 45, Plaintiffs David Grisham (“Grisham”) and Tina Watson (“Watson”; collectively “Plaintiffs”) filed a motion for attorneys' fees and expenses under 42 U.S.C. § 1988. They are requesting a total of $79, 143.18: $56, 920 for time spent by attorney Nathan Kellum; $7, 700 for time spent by attorney Anthony Mangini; $13, 942.50 for time spent by attorney Anne Helzer; and $580.68 in expenses. The expenses are not taxable, but defendants have not opposed an award for the expenses. The court will award $580.68 in expenses. Defendant Municipality of Anchorage (the “Municipality”) opposes the amount of the requested fees at docket 46. Plaintiffs reply at docket 48. Oral argument was not requested and would not be of assistance to the court.

         III. STANDARD OF REVIEW

         A party who prevails on a § 1983 claim is generally entitled to reasonable attorneys' fees and expenses.[1] “The district court has discretion in determining what fees are reasonable” but must clearly explain its reasoning for setting the fee amount.[2]When determining what constitutes a reasonable fee award, the courts uses the lodestar method. The method consists of two parts.[3] First, the court must calculate the lodestar figure, which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.[4] A reasonable hourly rate is the prevailing rate in the relevant community.[5] The number of hours reasonably expended on litigation is generally determined by the winning lawyer's professional judgment as to how much time was necessary for the case.[6] However, when calculating the lodestar figure the court should not include “‘excessive, redundant, or otherwise unnecessary'” hours.[7] “A district court can . . . impose up to a 10 percent reduction without explanation. . . . However, ‘where the disparity is larger, a more specific articulation of the court's reasoning is expected.'”[8] The resulting figure should “approximate[ ] the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.”[9]

         Second, the court determines whether to enhance or reduce the lodestar figure based on the Kerr factors[10] that are not already subsumed in the initial lodestar figure.[11]This further adjustment is generally disfavored.[12]

         The party requesting an award of fees bears the burden of “producing evidence that their requested fees are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.”[13] If the applicant meets this burden, then the opposing party must submit evidence disputing the accuracy and reasonableness of the fee applicant's claims.[14] “If opposing counsel cannot come up with specific reasons for reducing the fee request that the district court finds persuasive, [the court][ should normally grant the award in full, or with no more than a haircut.”[15]

         IV. DISCUSSION

         The Municipality agrees that Plaintiffs were the prevailing party and that an award of attorneys' fees and expenses is appropriate here. The Municipality also agrees with the requested hourly rates, which are supported with declarations attesting to the reasonableness of these rates for this community and for this type of work. The Municipality's opposition to the requested fee award is based on its contention that the 224 hours Plaintiffs' attorneys spent on the matter is unreasonable, noting that this case did not proceed to summary judgment or trial.

         A. Burden to show reasonableness

         Plaintiffs argue that their request for an award of 224 hours of attorneys' time is reasonable in this case, citing the declaration of Walter M. Weber that was attached to their request for fees.[16] Mr. Weber is an attorney based in Virginia who litigates First Amendment cases throughout the country. In paragraph 15 of his declaration, he asserts that the time attorney Kellum and attorney Mangini spent on the matter is reasonable given the facts and course of this case. Plaintiffs argue that the Municipality failed to present a competing declaration or other evidence that would call into question the hours spent on the matter, and therefore this court must grant the requested fees without any significant reductions.

         The court disagrees with Plaintiffs' assessment. While the Municipality did not submit a declaration to support its contention that the amount of hours Plaintiffs' attorneys spent on this case was excessive, it nonetheless sufficiently communicated to the court specific reasons why it believes the request should be reduced and cited numerous cases involving similar religious expression issues and litigation history where attorney Kellum's requested fees have been reduced. The cases discuss, at least in part, the reasonableness of hours attorney Kellum claimed. This is sufficient support for the Municipality's position. Moreover, while declarations are useful and persuasive when the court is assessing what the prevailing attorney rates are for a community, they are less so in the context of assessing the reasonableness of hours spent on a matter. Indeed, Mr. Weber's perfunctory statement that the time expended here is normal is not persuasive enough to cause the court to discount the Municipality's arguments. A competing declaration stating the opposite would have been of little value.

         To the extent the Municipality asks the court to wholesale slash attorney Kellum's requested fees based on the overall percentages other courts have reduced his fees, the court declines to do so. As noted by the Plaintiffs, some of the reductions in those cases were due to additional factors, such as hourly rates, overall success, and unrelated appeal work, not just excessive hours. The court must instead look at the specific time entries in this case and decide what reductions are warranted.

         B. Reasonableness of hours expended

         The Municipality argues that Plaintiffs' requested fees are excessive in a few areas. It believes the attorneys spent too much time on the complaint and the motion for a preliminary injunction and too much time preparing for the Rule 26(f) conference. It also argues that Plaintiffs' attorneys did not efficiently use local counsel and spent too much time on consultation.

         1. Complaint and Motion for a Preliminary Injunction

         The parties present different numbers as to how much time Plaintiffs' attorneys spent on pleadings and the preliminary injunction motion. Indeed, given the nature of billing statements, it is understandable that tasks and time entries could be categorized multiple ways. The court has done its own review of the billing statement and will rely on its own assessment of the numbers. Time entries related to the complaint total about 29.5 hours, with most of those hours billed by attorney Kellum. Time entries related to the preliminary injunction motion total 37 hours. This number only includes time spent researching and writing the motion itself. Again, attorney Kellum was the primary attorney on this task. In addition, Plaintiffs' attorneys spent about 15 hours preparing exhibits for the motion, 11 of which were spent on drafting Grisham's and Watson's affidavits. It appears attorney Mangini did much of the work on exhibits and affidavits. The hours attributed to the complaint and preliminary injunction motion exclude case development activities-reviewing files, making calls, looking at maps and photos, watching video-that attorney Kellum did not categorize as part of the complaint or the preliminary injunction process. Pre-complaint case development by attorneys Kellum and Helzer total 39 hours. Again, this is time apart from the drafting of the complaint and the preliminary injunction. In total, the attorneys spent around 120.5 hours preparing the initial filings in this case. The court finds this amount of time excessive for a variety of reasons.

         Kellum is a seasoned and experienced First Amendment attorney. The parties have cited many cases where Kellum has been the attorney for plaintiffs bringing a lawsuit related to his or her attempted distribution of religious materials in public places. Kellum's complaint outline and causes of action for these types of cases are well defined.[17] While the court agrees with Plaintiffs' argument that there are legal and factual distinctions that make each case unique, the time entries here show excessive time spent on drafting multiple documents with the same recitation of facts. The facts of the case make up the bulk of the complaint (18 of the 22 pages). The facts are then repeated in the two affidavits. They are repeated again in the preliminary injunction motion and constitute about a third of that document. After spending around 40 hours developing the case and spending around 30 hours drafting the fact-based complaint, it is duplicative to claim another 11 hours drafting affidavits with the same recitation of facts[18] and duplicative to claim more time preparing the facts for the preliminary injunction motion. Moreover, the court notes that this is not the first time Kellum has worked with Grisham. He also represented Grisham in a Northern District of Texas case where Grisham sued the City of Fort Worth for violating his First Amendment rights by preventing him from handing out religious literature at a public park during a public event.[19] Therefore, time spent gathering information about Grisham and his religious beliefs to include in the pleadings should have been minimal. Attorney Mangini's time spent on exhibits also appears excessive given that they are not attorney-created exhibits.

         Rather than parse through each specific entry and determine at what point in time the attorneys' efforts became excessive, the court will make a wholesale reduction. Generously assuming that the 39 hours of pre-case development was necessary to gather facts and research the legal particulars of this case, the court will make the reduction to the remaining 81.5 hours spent on the initial filings in this case. The court believes that preparation of the complaint and the preliminary injunction motion after thorough case development should not have taken more than 25 hours total, requiring a reduction of 56.5 hours from ...


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