Smith v. Chandler, City of et al

Filing 68

ORDER granting 59 Motion for Attorneys' Fees and Non-Taxable Costs and awarding defendants $125,466.50 in fees and $34,891.75 in non-taxable costs. See order for details. Signed by Senior Judge Frederick J Martone on 11/25/2014.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brandon Smith,
Plaintiff,

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vs.

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City of Chandler, et al.,
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Defendants.
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No. CV-12-2391-PHX-FJM
ORDER

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Before the court is defendants’ motion for attorney’s fees and non-taxable costs (doc.

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59), defendants’ memorandum in support (doc. 60) and supplements to the motion (docs. 65,

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67), plaintiff’s response (doc. 61), and defendants’ reply (doc. 66).

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On April 16, 2014, we granted defendants’ motion for summary judgment on

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plaintiff’s Fourth Amendment claim under 42 U.S.C. § 1983 for excessive use of force and

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state law claim for negligence (doc. 55). Plaintiff has appealed that decision.

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As the prevailing parties, defendants now contend that they are entitled to attorney’s

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fees and costs on the state law negligence claim pursuant to A.R.S. § 13-420. Defendants

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seek $125,466.50 in fees and $57,349.25 in non-taxable costs. Notably, defendants do not

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seek fees on their Fourth Amendment claim under 42 U.S.C. § 1988.

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A.
We first deny plaintiff’s request that we take the motion for attorney’s fees under

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advisement pending the Ninth Circuit’s ruling on plaintiff’s appeal. There is no basis to

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delay a ruling on this motion. Plaintiff can appeal an award of fees, then move to consolidate

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the appeals before the Ninth Circuit. Moreover, the Federal Rules of Civil Procedure allow

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a party to obtain a stay on execution of a judgment, including a fee award, by posting a

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supersedeas bond. Fed. R. Civ. P. 62(d). Having failed to set forth a reason to delay a

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decision, plaintiff’s request to take the motion under advisement is denied.

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B.

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Plaintiff filed two claims based on the same conduct by Officer Smith—the firing of

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two beanbag rounds at plaintiff’s leg. Plaintiff asserted a Fourth Amendment claim for

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excessive force under 42 U.S.C. § 1983, and a state law claim for negligence. Defendants

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prevailed on both the federal and state law claims. Arizona law provides that a court “shall”

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award reasonable attorney’s fees and costs incurred by a defendant who prevails “in the

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defense of any civil action based on conduct otherwise justified pursuant to this

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[Justification] chapter.” A.R.S. § 13-420.

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We have already concluded that Officer Smith’s use of non-deadly force, in the form

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of two beanbag shots to Brandon’s leg, to subdue and disarm Brandon before he injured

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himself or others, was reasonable and justified. (Order on MSJ at 7-8 (doc. 55) (citing

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A.R.S. § 13-409 (use of force by law enforcement to effect an arrest or detention, or prevent

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escape) and § 13-403(4) (use of force to prevent suicide or injury to one’s self)). Because

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defendants’ conduct was justified under Arizona’s Justification statute, defendants are

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entitled to reimbursement of their reasonable attorney’s fees and costs associated with

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plaintiff’s negligence claim. See A.R.S. § 13-420.

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Plaintiff presents several arguments against an award of fees. He first contends that

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defendants’ conduct was not justified under § 13-409 because the force was not used to effect

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an arrest or detention. Although there was no arrest during the short time that the officers

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were on the scene, it is clear that Brandon was “detained” for investigatory purposes at the

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moment the beanbag gun was fired. The officers were responding to a 911 call placed by

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Brandon’s father and stepmother because of their concern that Brandon, armed with a knife,
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was a threat to himself or others. In responding to the 911 call, the officers were authorized

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to briefly detain Brandon in order to investigate the circumstances for the call. Therefore,

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Officer Smith’s conduct fits within A.R.S. § 13-409.

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Plaintiff also argues that awarding attorney’s fees to the defendant officer and city

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under A.R.S. § 13-420 would conflict with A.R.S. § 12-348, which plaintiff believes

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demonstrates a legislative intent to deny government entities fee awards in civil actions. We

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disagree that § 12-348 has any application in this case.

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Section 12-348 provides attorney’s fee awards to a prevailing party, other than a state,

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city, town or county, under specifically described circumstances, none of which applies in

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this case. Although the Arizona legislature chose to deny fee awards to government entities

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under the circumstances described in § 12-348, it did not impose the same limitation in § 13-

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420. Instead, § 13-420 broadly grants reasonable attorney’s fees and costs to “a party that

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prevails” in the defense of any civil action based on conduct (including conduct of law

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enforcement officers) that is “justified” under A.R.S. §§ 13-401–13-421.

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Finally, plaintiff argues that § 13-420 must not be applied in this case because of the

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doctrine of conflict preemption. Plaintiff contends that awarding fees to a prevailing

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government defendant under § 13-420 conflicts with 42 U.S.C. § 1988, which allows

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attorney’s fees to a prevailing government defendant in a federal civil rights action only

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when the court finds that the plaintiff’s claims were “frivolous, unreasonable, or without

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foundation.” Hughes v. Rowe, 449 U.S. 5, 14, 101 S. Ct. 173, 178 (1980). No such showing

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is required to award fees to a prevailing defendant under § 13-420.

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“Conflict preemption is found where compliance with both federal and state

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regulations is a physical impossibility, or where state law stands as an obstacle to the

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accomplishment and execution of the full purposes and objectives of Congress.” Bernhardt

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v. Los Angeles Cnty., 339 F.3d 920, 929 (9th Cir. 2003) (citation omitted). In other words,

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a “hostile state rule is preempted to the extent it actually interferes with the ‘methods by

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which the federal statute was designed to reach [its] goal.’” Ting v. AT&T, 319 F.3d 1126,

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1137 (9th Cir. 2003),(quoting Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S. Ct. 805,
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813 (1987)). Plaintiff argues that because the same conduct by Officer Smith forms the basis

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of both the federal civil rights claim and the state law negligence claim, application of § 13-

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420 would pose an obstacle to “the full purposes and objectives of Congress as exemplified

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in § 1988.” Response at 5. We disagree.

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Section 1988 was enacted to “attract competent counsel to represent citizens deprived

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of their civil rights,” Evans v. Jeff D., 475 U.S. 717, 731, 106 S. Ct. 1531, 1539 (1986), and

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to “encourage compliance with and enforcement of the [federal] civil rights laws,” Dennis

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v. Chang, 611 F.2d 1302, 1306 (9th Cir. 1980). Accordingly, section 1988 limits the

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circumstances under which fees may be awarded to a prevailing government defendant in a

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federal civil rights case. In contrast, A.R.S. § 13-420 applies to plaintiff’s state law

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negligence claim only. This creates no obstacle to the policies promoting the enforcement

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of federal civil rights laws. Although A.R.S. § 13-420 may cause plaintiff’s counsel to

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consider the ramifications of filing a state law negligence claim in addition to a 42 U.S.C.

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§ 1983 claim, conflict preemption does not preclude application of A.R.S. § 13-420 in this

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case.
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Plaintiff does not challenge the amount of the fees or costs requested, nor does he

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suggest that the hours incurred developing the negligence claim are separable from those

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incurred on the § 1983 claim. Our own review demonstrates that the fees requested are

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reasonable. Defense counsels’ hourly rates of between $150 to $200 are reasonable in the

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Phoenix metropolitan area. Plaintiff does not challenge the claimed number of hours

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expended in defense of this action, and our own review indicates that the hours were

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reasonably incurred.

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Certain claimed non-taxable costs, however, do not meet the reasonableness test.

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Defendants hired two experts residing in California, one at a rate of $200 an hour, and the

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other at a rate of $650 an hour. Although defendants are free to hire any expert of their

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choosing, including an out of town expert at an exorbitant rate, these choices are unlikely to

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pass the reasonableness test in a fee shifting analysis.
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Almost $40,000 of the $57,000 claimed in non-taxable costs consist of payments made

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to Mace Beckson, M.D. at a rate of $650 an hour for a total of 61.25 hours. This is excessive

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by any standard. Instead, a reasonable rate for a medical expert in Phoenix, Arizona is $300

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an hour. Accordingly the expert fees allowed for Dr. Beckson are reduced by $21,437.50.

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We also note issues with the travel charges related to defendants’ expert witnesses.

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Defendants’ second expert, Ron McCarthy, charged $1,020 in mileage and time to drive from

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California to Arizona for a 3-hour meeting with defense counsel. These charges are

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excessive considering that a one hour flight from California to Arizona costs about $200.00.

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Defendants are entitled to only reasonable costs. Accordingly, we reduce these claimed fees

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by $820.00.

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Finally, defense counsel claims costs of a trip to California from Arizona to attend the

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depositions of both defense experts. Although the depositions took place on two consecutive

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days, counsel billed for a 4-day car rental and for change fees on her return flight on Sunday.

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Fees related to personal travel are not reasonably included in a motion for attorney’s fees and

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costs. Accordingly, the travel fees requested are reduced by another $200.00.

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Therefore, we reduce defendants’ requested costs by a total of $22,457.50, for a final
award of non-taxable costs in the amount of $34,891.75.

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D.

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IT IS ORDERED GRANTING defendants’ motion for an award of attorney’s fees

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and costs (doc. 59) and awarding defendants $125,466.50 in fees and $34,891.75 in non-

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taxable costs.

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DATED this 25th day of November, 2014.

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