United States District Court, D. Alaska
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 ...