Prison Legal News v. Ryan et al

Filing 379

ORDER: Plaintiff's Motion for an Award of Attorneys' Fees 365 is GRANTED IN PART and DENIED IN PART. Defendants shall pay Plaintiff $2,370,881.67 in attorneys fees and expenses. IT IS FURTHER ORDERED Defendants shall pay Plaintiff $8,426.25 for costs as outlined in Plaintiff's Bill of Costs (Doc. 366 ). Signed by Senior Judge Roslyn O Silver on 3/19/2024. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Prison Legal News,
Plaintiff,

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v.

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Charles L Ryan, et al.,

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No. CV-15-02245-PHX-ROS
ORDER

Defendants.

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Pending before the Court is Plaintiff’s Motion for Attorneys’ Fees and Expenses

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(Doc. 365, “Mot.”) seeking over $2,500,000 in fees and expenses spanning the more than

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eight-year life of this case pursuant 42 U.S.C. § 1988. The Court will grant in part and

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deny in part Plaintiff’s motion and award $2,370,881.67 in attorneys’ fees and expenses

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and $8,426.25 in costs.

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BACKGROUND

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Plaintiff Prison Legal News filed this suit challenging Arizona Department of

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Corrections Order 914, under which the Defendants could prohibit inmates receiving mail

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containing “sexually explicit material.” (Doc. 1). The Court granted partial summary

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judgment for Plaintiff, (Doc. 260), and entered a permanent injunction requiring

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Defendants to amend their order and permit distribution of the censored issues, (Doc. 305).

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The Ninth Circuit concluded certain language in Defendants’ policy was unconstitutional

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and affirmed Plaintiff’s victory on one as-applied challenge and remanded another of

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Plaintiff’s as-applied challenges but otherwise reversed in part and remanded for further

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proceedings. (Doc. 341-1). Defendants then revised Order 914 and distributed two

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editions of Plaintiff’s publication, (Doc. 343), and the Court entered judgment in favor of

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Defendants after the Court concluded there was nothing left to adjudicate, (Docs. 362 and

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363). But the Court noted entering judgment in favor of Defendants “should not be

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construed as any ruling regarding Plaintiff’s success for purposes of an application for

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attorneys’ fees.” (Doc. 362).

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Plaintiff then filed a Motion for Attorneys’ Fees and Expenses (Doc. 365) requesting

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$2,255,497.65 in fees for merits work and $250,037.55 for work on the fees petition itself.

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Defendants argue this amount is excessive and requests the Court reduce the award by 70%

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to account for Plaintiff’s “limited success obtained” and further reduce the award by

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$657,423.00 for specific challenged billing entries. (Doc. 376, “Resp.” at 30).

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FEES MOTION AND LODESTAR CALCULATION

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Courts “employ the ‘lodestar’ method to determine a reasonable attorney’s fees

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award.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (citing Fischer v. SJB–P.D.

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Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). Courts calculate “the lodestar figure by

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multiplying the number of hours reasonably expended on a case by a reasonable hourly

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rate.” Id. The Court has “considerable discretion” in determining the reasonableness of

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attorney’s fees. Webb v. Ada County Idaho, 195 F.3d 524, 527 (9th Cir. 1999). After

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calculating the lodestar amount, a Court may reduce or multiply the award based on a

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variety of factors. Those factors include: (1) the time and labor required, (2) the novelty

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and difficulty of the legal questions involved, (3) the skill required to perform the legal

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service properly, (4) other employment precluded due to acceptance of the case, (5) the

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customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by

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the client or the circumstances, (8) the amount involved and the results obtained, (9) the

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experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case,

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(11) the nature and length of the professional relationship with the client, and (12) awards

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in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (“Kerr

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factors”).1 Some of these factors are normally subsumed in the lodestar calculation such

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that they need not be considered again after the lodestar is determined. See Gonzalez v.

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City of Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (identifying factors often considered

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when calculating lodestar).

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A.

Hourly Rates

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The first question is whether Plaintiff’s asserted rate is reasonable. “A reasonable

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hourly rate is ordinarily the prevailing market rate in the relevant community.” Sw. Fair

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Hous. Council v. WG Scottsdale LLC, No. 19-00180, 2022 WL 16715613 at *3 (D. Ariz.

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Nov. 4, 2022) (citing Kelly, 822 F.3d at 1099). And “the burden is on the fee applicant to

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produce satisfactory evidence—in addition to the attorney’s own affidavits—that the

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requested rates are in line with those prevailing in the community for similar services by

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lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465

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U.S. 886, 895 n.11 (1984).

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Plaintiff correctly asserts courts may apply current market rates in calculating the

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lodestar to account for the delay in payment over the eight-year lifespan of this case. Mot.

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at 8; see also Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“[A]n appropriate adjustment

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for delay in payment—whether by the application of current rather than historic hourly

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rates or otherwise—is within the contemplation of the statute.”).

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Plaintiff cannot claim its historical rates would be unreasonable because they “far exceed[]

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Phoenix market rates.” Resp. at 22. But whether Plaintiff’s claimed rates exceed Phoenix

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market rates is inapplicable to determining an adjustment to historical rates to account for

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delay. The Court finds an adjustment to 2023 market rates appropriate.

Defendants argue

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Plaintiff also asserts San Francisco rates should apply instead of Arizona rates

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because Plaintiff “was unable to secure a law firm in Arizona willing or able to take on the

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lead counsel role for this case,” as the Ninth Circuit Commissioner found for Plaintiff’s

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appellate fee award. Mot. at 8–9 (citing Case. No. 19-17449, Doc. 78 at 3–4). Plaintiff

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Local Rule 54.2 also lists factors the Court must address when determining the
reasonableness of the requested award. These factors are largely duplicative of the Kerr
factors.
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argues the Ninth Circuit’s finding constitutes the “law of the case” and is binding on this

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Court in this subsequent proceeding. Id. at 8. Defendants argue Ballard Spahr and Perkins

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Coie are “well equipped to litigate high-stakes civil rights cases.” Resp. at 22. And though

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Defendants acknowledge those firms could not “sign on as lead counsel for this particular

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case,” they argue “this does not warrant the State and its taxpayers being required to pay”

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San Francisco rates. Id. Defendants further argue the Ninth Circuit’s findings in its fee

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award are limited to the appellate context and do not apply here. Id. at 21–22. While the

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Ninth’s Circuit’s finding San Francisco rates apply might not be the “law of the case” as

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Plaintiff suggests, it is certainly persuasive where Plaintiff asserts and Defendants do not

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meaningfully challenge that no Arizona firms were able to serve as lead counsel in this

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case. The Court finds San Francisco rates are appropriate in calculating the lodestar.

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In further support of its argument its claimed fees are reasonable, Plaintiff states the

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lawyers at Rosen Bien Galvan & Grunfeld LLP (“RBGG”) have a longstanding

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relationship with Plaintiff and have “unquestionable expertise in prison and First

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Amendment law and cases, including cases specifically addressing First Amendment

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access to prisons.” Defendants do not respond specifically to these assertions.

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The Court finds that RBGG’s 2023 San Francisco rates apply, and the experience,

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reputation, and ability of Plaintiff’s counsel generally support the hourly fees requested in

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this case. Accordingly, the Court finds Plaintiff’s rate schedule above is reasonable.

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B.

Hours Expended

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Under the lodestar method, the prevailing party may recover fees for “every item of

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service which, at the time rendered, would have been undertaken by a reasonable and

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prudent lawyer to advance or protect his client’s interest.” Gary v. Carbon Cycle Ariz.

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LLC, 398 F. Supp. 3d 468, 486 (D. Ariz. 2019) (quoting Twin City Sportservice v. Charles

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O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982)). Courts may “exclude from this

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initial fee calculation hours that were not reasonably expended.” Hensley v. Eckerhart,

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461 U.S. 424, 433-34 (1983) (internal quotations removed); see also McKown v. City of

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Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (“In determining the appropriate number of

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hours to be included in a lodestar calculation, the district court should exclude hours that

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are excessive, redundant, or otherwise unnecessary.”).

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i.

Limited Success

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Defendants argue Plaintiff should not recover its requested fees because it achieved

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only limited success. Resp. at 9–12. The “extent of a plaintiff’s success is a crucial factor

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in determining the proper amount of an award of attorney’s fees.” Hensley v. Eckerhart,

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461 U.S. 424, 440 (1983). Where a plaintiff achieves only limited success, courts should

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award only fees reasonably related to the results achieved.

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congressional intent to limit awards to prevailing parties requires that these unrelated

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claims be treated as if they had been raised in separate lawsuits, and therefore no fee may

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be awarded for services on the unsuccessful claim.”). In some cases, distinguishing

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between work expended on different claims is relatively straightforward. This is not one

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of those cases. This case involves “a common core of facts” and it is “difficult to divide

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the hours expended on a claim-by-claim basis.” Id. In such cases, “the district court should

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focus on the significance of the overall relief obtained by the plaintiff in relation to the

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hours reasonably expended on the litigation.” Id.

See id. at 435 (“The

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Defendants argue Plaintiff’s limited success in this case justifies a 70% across-the-

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board reduction to Plaintiff’s requested fees. Resp. at 12. Defendants’ Response asserts

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“Plaintiff ultimately lost the main impetus behind the lawsuit: its claim that Defendants’

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publication policy was unconstitutional on its face and must be revamped.” Id. But this

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ignores that Plaintiff achieved many of its litigation goals by prevailing on one of its two

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facial First Amendment challenges and two of its four as-applied challenges, that

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Defendants permanently revised its policy, that Defendants uncensored five issues of its

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magazine, and paid Plaintiff $10,000 in damages. (See Doc. 377, “Reply” at 4–5).

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Plaintiff applied a 10% across-the-board reduction to its requested fees to account

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for any limitations on its success on top of significant discrete reductions to “remove time

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clearly identifiable as devoted to issues on which it did not prevail.” Reply at 5; see also

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Mot. at 2, 12. The Court finds these reductions, taken together, adequately account for

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Plaintiff’s limited—but still substantial—success in this matter.

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ii.

Vague and Ambiguous Billing Entries

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Defendants ask the Court to reduce Plaintiff’s fee request by at least $54,399.00 to

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account for vague and ambiguous billing entries. Resp. at 13. A party requesting fees must

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“maintain billing time records in a manner that will enable a reviewing court to identify

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distinct claims.” Hensley, 461 U.S. at 437. Local Rule 54(e)(2) permits the Court to reduce

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fee awards where time entries “fail to adequately describe the service rendered.” The Local

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Rules require parties seeking fees to “adequately describe the service rendered” by, for

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example, identifying participants and the reason for telephone conferences, identify

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specific legal issues and (if applicable) the relevant pleading or document for legal

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research, and identifying the activities associated with preparation of pleading and other

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papers. Id.

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Defendants argue a sampling of Plaintiff’s billing entries “lack sufficient specificity

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to determine what the attorney was actually working on,” and are “untethered to any

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described factual issues or even the First or Fourteenth Amendment claims alleged in the

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case.” Resp. at 13. Plaintiff’s Reply asserts its billing records “are not vague, especially

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when viewed in context with surrounding entries, and include the level of detail that

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[Plaintiff’s] attorneys provide to clients when engaging in fee for services work.” Reply

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at 9.

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The Court has reviewed the billing entries Defendants identified as vague, see Resp.

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Ex. 6, and Plaintiff’s annotated version of Defendants’ table, see Reply Ex. C. These

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billing entries provide the necessary information to determine the time worked is

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reasonable and appropriate. While many of these entries include general statements about

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the content of the work, the context of the entries provides sufficient detail. These are far

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from the bare entries the Local Rules contemplate as insufficient. Entries related to

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correspondence identify all participants and the subject matter of the correspondence and

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entries related to legal research identify the specific legal issues researched. See generally

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Resp. Ex. 6, Reply Ex. C. The Court finds reducing the fees award due to the billing

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entries’ purported vagueness or ambiguity is not appropriate.

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iii.

Block Billing

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Defendants assert they identified $167,090.00 in billing entries constituting

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inappropriate block billing and ask the Court to reduce this amount by at least 50% to 70%.

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Resp. at 14–15. Courts reducing a fees award based on improper block billing may not

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apply an across-the-board reduction to the total fee request but may apply a percentage

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reduction to block-billed hours. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th

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Cir. 2007).

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Plaintiff argues block billing “refers to a single time entry for an entire days’ tasks.”

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Reply at 8. While this is the definition the Ninth Circuit put forth in Welch, see 480 F.3d

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at 945 n.2, this is a particularly narrow view of block billing. Courts within the Ninth

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Circuit have applied a broader definition of block billing encompassing entries that contain

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multiple discrete and unrelated tasks preventing courts from distinguishing between the

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time claimed for the various tasks. See, e.g., Moshir v. Automobili Lamborghini Am. LLC,

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927 F. Supp. 2d 789, 799 (D. Ariz. 2013); Deocampo v. Potts, 2014 WL 788429, at *5

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(E.D. Cal. Feb. 25, 2014).

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The Court has reviewed the table of purported block-billed entries Defendants

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compiled and Plaintiff’s annotated version of this table providing context for the

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challenged entries. See Resp. Ex. 4, Reply Ex. B. Many of the challenged entries involve

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entries of less than one hour and in some cases as low as 0.3 hours. See id. Others involve

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plainly related tasks with reasonable time spent—e.g. “Revise & file stipulated EOT and

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PO; email opposing regarding same” for 1.1 hours; “Emails with AS re prep for call with

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HRDC re various strategy issues, conduct call, and follow up conf with AS re next steps”

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for 1.0 hour. Reply Ex. B at 6. While they include discrete tasks, these entries are not the

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sort of block billing courts are concerned about.

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But there are some entries in the sampling Defendants compiled that constitute

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improper block billing. For example, one entry for 6.0 hours includes “[d]oc review, and

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M&C, emails with Gottfried and LAE.” Reply Ex. B at 5. While, as Plaintiff’s suggest,

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these tasks may well have been related to the same topic, they are sufficiently distinct that

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the Court cannot properly assess the reasonableness of the time spent on each task,

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particularly when the total time spent comprises six hours. If, say, this attorney spent five

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hours of this billing entry on emails, while spending only one hour between document

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review and a meet and confer, the time spent on emails would be unreasonable. But the

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combined nature of this billing entry does not allow the Court to make such a

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determination. Such entries are not common in Defendants’ compilation, but they are

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present and constitute improper block billing.

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Defendants ask the Court to apply a reduction of at least 50% and up to 70% to

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Plaintiff’s block-billed time entries. Resp. at 15. The Court is unsure how Defendants

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arrived at these figures. Defendants fail to cite any cases involving such a staggering

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reduction figure, nor do the facts support it. Instead, the cases they cite involved reductions

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of no more than 30% to block-billed hours. See Lahiri v. Universal Music & Video

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Distribution Corp., 606 F.3d 1216, 1222–23 (9th Cir. 2010) (upholding 30% reduction);

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Deocampo v. Potts, 2014 WL 788429 at *5 (applying 20% reduction).

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Because most of the entries in Defendants’ compilation of purported block billing

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are permissible, the Court will apply a 10% reduction to the $167,090.00 of billing entries

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Defendants challenge to account for impermissible block billing, yielding a reduction of

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$16,709.00.

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iv.

Excessive or Duplicative Billing

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Defendants assert Plaintiff’s fee requests for preparing the complaint, responding to

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Defendants’ motion for summary judgement, and preparing the reply for Plaintiff’s motion

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for summary judgment are excessive and the Court should deny them. District courts may

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reduce requested hours that are excessive or duplicative. See Vargas v. Howell, 949 F.3d

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1188, 1199 (9th Cir. 2020).

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Defendants claim Plaintiff’s billing entries of $28,322.50 for preparing the

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complaint and $115,630.00 to draft Plaintiff’s motion for summary judgment are excessive.

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Resp. at 16. Defendants also assert RBGG’s billing $95,975.00 to respond to Defendants’

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motion for summary judgment and $42,410.00 for Plaintiff’s reply regarding its own

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motion for summary judgment should preclude an award for “fees billed by HRDC and

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Ballard Spahr for arguable duplicative work.” Id.

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Plaintiff argues the “complaint was carefully tailored to the facts” and involved

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consultations with an expert on correctional mail policies and practices, and that the

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summary judgment motion “involved complicated issues of law and fact, extensive

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oversize briefs, a record spanning thousands of pages, and later, multiple related motions

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to strike and evidentiary objections.” Reply at 8. Plaintiff also notes Defendants did not

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propose a reduction amount. Id. While this is true, it does not preclude the Court from

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reducing these fees based on independent evaluation.

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The Court finds Plaintiff’s billing related to preparing the complaint and Plaintiff’s

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motion for summary judgment to be excessive. While the Court acknowledges that

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drafting these documents likely involved significant factual and legal work, this work

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builds on itself. Taken together, $143,952.50 for preparing these filings is too high. The

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Court will apply a 20% reduction to these entries, yielding a reduction of $28,790.50.

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While the Court may have found that billing entries by HRDC and Ballard Spahr

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related to the response and reply to the cross-motions for summary judgment would be

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excessive and duplicative given the fees RBGG billed for this work, Defendants do not

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identify the amount of those fees charged by the other firms nor argue that RBGG’s billing

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was excessive in itself. Thus, the Court will not reduce the fees requested for this work.

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v.

Clerical Tasks

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Defendants assert they have identified $29,776.00 in billing entries for clerical

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tasks. Resp. at 17–21. In assessing a fees motion, courts may reduce the award for time

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spent performing clerical work. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 288 n.10

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(1989); Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); Davis v. City & Cnty. of

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San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on other grounds on

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denial of reh’g, 984 F.2d 345 (9th Cir. 1993).

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Plaintiff’s Reply argues many of the challenge time entries “describe substantive

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legal work done by attorneys, including finalizing pleadings and other litigation

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documents,” substantive conferences and emails, and legal research. Reply at 6.

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The Court has reviewed Defendants’ table of time entries comprising purportedly

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clerical work. See Resp. Ex. 2. Most of these entries reflect purely clerical tasks, e.g. 1.5

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hours for “[e]lectronically filing documents” and 0.3 hours to “[c]alendar deadline per

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court order.” Id. at 6, 12. But, as Plaintiff suggests, some of these entries involve

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substantive legal work, e.g. 1.6 hours to “[r]evise, finalize, and file joint motion for

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extension of case management deadline and associated proposed orders.” Id. at 5.

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While Defendants request the Court to eliminate entries for clerical work—a

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position which has some support in the caselaw, see Topness v. Cascadia Behav.

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Healthcare, No. 16-CV-2026, 2017 WL 8895626, at *6 (D. Or. Oct. 17, 2017)—this work

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is not necessarily unrecoverable but may not be recoverable at the high billing rate of an

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attorney or even a paralegal, see Missouri v. Jenkins, 491 U.S. at 288 n.10 (“Of course,

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purely clerical or secretarial tasks should not be billed at a paralegal rate . . . . Such non-

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legal work may command a lesser rate. Its dollar value is not enhanced just because a

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lawyer does it.”) (internal quotations omitted).

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To properly account for clerical work, but acknowledging some of the identified

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entries include substantive legal work or clerical work recoverable at a lower rate, the Court

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will reduce the purportedly clerical hours identified by Defendants by 70%, yielding a

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reduction of $20,843.20.

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vi.

Work Unrelated to the Merits

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Defendants assert they have identified $74,052.00 in billing entries reflecting work

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appearing unrelated to this litigation and $49,760.50 in entries reflecting internal

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communications that “cannot be connected to any claims for which Plaintiff ultimately

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received relief and furthermore constitute unreasonably duplicative interoffice

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communication.” Resp. at 20–21. A party seeking fees must make “a good faith effort to

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exclude from a fee request hours that are excessive, redundant or otherwise unnecessary.”

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Hensley, 461 U.S. at 434.

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Defendants take issue with $74,052.00 in billing entries including (i) “unspecified

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communications with the press or about communicating with the press;” (ii) research on

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“potential copyright claims and conferencing with the ACLU regarding PLN materials;”

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(iii) internal communications about “unspecified inmate communications or inmate

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subscriber communications;” (iv) communications about “related cases,” including

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Parsons v. Ryan, Amtel, and Romero; and (v) “activities related to building a database of

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inmate subscribers to assess subscriber numbers,” providing “litigation updates” to

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inmates, sending out “unspecified mass mailing to inmate subscribers,” apparently

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recruiting “inmate subscribership,” and performing “inmate custody checks.” Resp. at 20

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(internal quotations omitted).

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Defendants also challenge regular billing “for what appear to be internal emails or

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conferences regarding local counsel, or unspecified strategy, or next steps, status, logistics,

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case management, upcoming projects, staffing, or division of labor,” identifying entries

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totaling $49,760.50. Resp at 20–21 (internal quotations omitted).

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Plaintiff correctly asserts the purportedly “unrelated cases” are seminal related

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cases, including one later cited in the Ninth Circuit’s decision in this matter. Reply at 7.

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Plaintiff then argues time spent communicating with incarcerated subscribers about

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censorship was related to the merits—HRDC relied on these communications to learn if

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Defendants were delivering publications and ultimately amended its complaint to add new

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claims based on information obtained through this outreach. Id. Seemingly responding to

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Defendants’ claims regarding entries related to a potential copyright claim, Plaintiff argues

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Defendants acknowledge “development of theories of the case and drafting initial

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pleadings is generally compensable.” Finally, Plaintiff argues press coverage can be

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integral to identify witnesses and evidence and to advance investigations. Id. (citing Davis,

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976 F.2d at 1545 (“Where the giving of press conferences and performance of other

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lobbying and public relations work is directly and intimately related to the successful

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representation of a client, private attorneys do such work and bill their clients. Prevailing

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civil rights plaintiffs may do the same.”)).

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While the Court agrees that much of the research on related cases is sufficiently

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related to the merits of the case, Defendants otherwise present valid arguments for

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reductions to the fees request. While communications with inmates may have implications

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for the merits of the case, the legal relevance would be with the database or information

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gathered from the communications—not the time spent on the communications

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themselves.

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compensable, development of a copyright theory that Plaintiff did not bring, let alone

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successfully pursue, is not compensable. Further, Plaintiff has not articulated how press

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and media relations are so “directly and intimately related to the successful representation”

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in this case to justify recovering fees for such time. Finally, most of the $49,760.50 in

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billing entries for internal communications that Defendants challenge largely appear not

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sufficiently related to the merits and instead reflect time spent on administrative tasks.

And while Plaintiff is correct that development of case theories is

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Thus, the Court will apply a 70% reduction to both the entries totaling $74,052.00

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and the entries totaling $49,760.50 to account for work not reasonably connected to the

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merits of a claim for which Plaintiff ultimately received relief, yielding a reduction of

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$86,668.75.

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vii.

Fees Application

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Finally, Defendants further argue Plaintiff’s requested $301,017.15 in fees for

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preparing the present fees application are unreasonable and excessive. Resp. at 28–30.

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Defendants ask the Court to reduce these fees by 70%. Id. at 29–30. It is “well established

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that time spent in preparing fee applications under 42 U.S.C. § 1988 is compensable.”

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Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) (quoting Anderson v.

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Director, OWCP, 91 F.3d 1322, 1325 (9th Cir.1996)).

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Defendants’ argument focuses on comparing Plaintiff’s request to the fees Plaintiff

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sought for the entirety of the appellate process. Resp. at 29. Plaintiff sought $278,487.50

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for its appellate work (including merits and fee application work) and the Ninth Circuit

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ultimately awarded $208,865.62. Id. But this comparison is inapposite. As Plaintiff points

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out, the appellate process spanned two years and involved only one substantive brief.

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Reply at 10–11. The present fees application encompasses work spanning more than eight

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years of extensive litigation and includes the work of three law firms. Id.

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Defendants’ remaining argument for reducing the fees award for time spent

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preparing the fees application is an undeveloped and unsupported assertion that “Plaintiff’s

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billing for preparation of the fees application suffers from the same fatal flaws as does the

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request for fees for merits work”—the entries are “similarly vague and ambiguous,

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excessive, duplicative, and contain billing for clerical work,” and “should be reduced in

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proportion to the limited success achieved in this case.” Resp. at 29–30. Plaintiff responds

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detailing the work that went into preparing the fees application and the $38,501.05 in

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discrete reductions, HRDC and Ballard Spahr not claiming fees for work after May 26,

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2023, a 10% across-the-board reduction of fees work time, a 20% reduction of fees from

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June 24 to August 29, 2023, and a waiver of fees related to work to complete and file the

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Reply estimated to be at least $20,000. Reply at 11.

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The Court finds these reductions sufficient.

As Defendants will know from

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reviewing the fees application and its supporting documents, preparing these papers

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required painstaking review of nearly a decade of billing entries across multiple firms. The

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Court will not reduce the requested fees award for preparing the fees application.

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viii.

Expenses and Costs

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Defendants take issue with Plaintiff’s requested reimbursement for $18,378.80 in

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costs. Resp. at 24. Defendants argue (i) the Court should deny these costs because they

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do not comply with Local Rule 54.2(e)(3); (ii) costs of three deposition transcripts are

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duplicative; (iii) costs for legal research are not recoverable or were not reasonably

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incurred; and (iv) costs for postage, long-distance telephone calls, courier fees,

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photocopying, and travel were not established as reasonably incurred. Id. at 24–28.

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Local Rule 54.2(e)(3) provides a party seeking costs must “identify each related

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non-taxable expense with particularity,” attaching “copies of applicable invoices, receipts

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and/or disbursement instruments.” Defendants argue Plaintiff failed to comply with this

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rule by not identifying each non-taxable cost with particularity and did not “itemize or

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parse any of these costs into categories and identify the total cost incurred per category.”

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Resp. at 24. Plaintiff responds stating their “expense records are organized and provide

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the necessary detail” in that they “submitted an itemized statement of all expenses and

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attached supporting documentation (i.e., receipts) based on the expense category. Reply at

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10. The Court agrees. Plaintiff attached an itemized statement of all expenses and included

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applicable supporting documentation. See Mot. Ex. F at 247–266. Plaintiff’s expense

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request complies with Local Rule 54.2(e)(3), and it is unclear what more Defendants could

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ask Plaintiff to provide to document these expenses.

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Defendants claim Plaintiff includes the costs for three deposition transcripts in both

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its bill of costs (Doc. 366) and its expense request here and are thus duplicative. Resp. at

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25. Plaintiff explains its itemized expense report specifically omits court reporter charges

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claimed on the bill of costs. Reply at 10 (citing Doc. 365-1 at 265). Plaintiff is correct.

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The Court will not reduce Plaintiff’s requested expenses because Plaintiff’s request does

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not seek duplicative recovery of these expenses.

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Defendants argue legal research expenses are not recoverable, and even if the Court

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decides they are recoverable, the Court should deny them because Plaintiff’s invoices are

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insufficient to establish the expenses were reasonable and connected to this litigation.

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Resp. at 25–26. Defendants cite to decisions from the Seventh Circuit and district courts

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in California and Oregon to assert legal research expenses are not recoverable. Id. But

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this ignores cases from the District of Arizona holding legal research expenses are

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recoverable costs. See, e.g., Agster v. Maricopa Cnty., 486 F. Supp. 2d 1005, 1018 (D.

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Ariz. 2007) (awarding Plaintiff electronic legal research expenses under § 1988). The

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Court finds legal research expenses are recoverable. Further, Plaintiff has complied with

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Local Rule 54.2(e)(3) in presenting adequately detailed accounts of its legal research

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expenses. Legal research expense reports need not identify the legal issues researched.

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Agster, 486 F. Supp. 2d at 1018. The Court will not reduce or deny Plaintiff’s legal

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research expense request.

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Finally, Defendants argue the Court should deny costs for postage, long-distance

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telephone calls, courier fees, photocopying, and travel because Plaintiff’s submitted

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invoices do not establish the costs were reasonable. Resp. at 26–28. Plaintiff asserts its

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itemized statement of expenses and attached supporting documentation satisfy its burden

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on this issue. See Reply at 10. As the Court found above with respect to Plaintiff’s fee

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request generally, its requests for these expenses are sufficient under Local Rule 54(e)(3).

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There is one slight exception—Defendants identify an entry for $20.88 for the postage

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costs of sending “[d]iabetes books” to prisoners. Resp. at 27, (Doc. 365-4 at 187). It is

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unclear how this charge relates to this litigation and the Court will deny it, yielding a total

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reduction of Plaintiff’s non-taxable expenses of $20.88.

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ix.

Lodestar Calculation

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Accordingly, the Court will reduce the lodestar amount by $153,032.33 to account

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for improper block billing, excessive hours, clerical tasks, work not reasonably connected

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to the merits of a claim for which Plaintiff received relief, and unrecoverable expenses as

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outlined above. The Court calculates the lodestar amount to be $2,370,881.67.

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C.

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Despite a “strong assumption that the ‘lodestar’ method represents a reasonable

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fee,” Corrales-Gonzalez v. Speed Auto Wholesalers LLC, 2023 WL 3981139, at *7 (D.

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Ariz. June 13, 2023), the Court “has discretion to adjust the lodestar upward or downward”

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based on the Kerr factors not subsumed in the lodestar calculation, Stetson v. Grissom, 821

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F.3d 1157, 1166-67 (9th Cir. 2016). Courts must assess these factors and must articulate

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“with sufficient clarity the manner in which it makes its determination.” Carter v. Caleb

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Brett LLC, 757 F.3d 866, 869 (9th Cir. 2014). The above lodestar analysis subsumes

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several of these factors, including the time and labor required by counsel, skill required to

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perform the legal service properly, customary fees in similar matters, and the experience

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and reputation of counsel. Defendants do not challenge any of these lodestar factors aside

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from their general arguments against the fee award detailed above. The Court considers

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the remaining factors here and finds none justify adjusting the lodestar figure.

Lodestar Adjustment

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i.

Time Limitations

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Given the time required to litigate this matter, Plaintiff asserts that on occasion, its

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lawyers needed to delay other matters. Mot. at 15. This factor weighs in favor of awarding

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the full lodestar amount.

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ii.

Results Obtained

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The Supreme Court has instructed the “most critical factor in determining the

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reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v. Hobby, 506

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U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436). See also Rudebusch v. Arizona,

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No. 95-CV-1313, 2007 WL 2774482, at *5 (D. Ariz. Sept. 21, 2007) (quoting Hensley, 461

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U.S. at 436). If a “plaintiff has achieved only partial or limited success, the product of

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hours reasonably expended on the litigation as a whole times a reasonable hourly rate may

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be an excessive amount.” Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. at 436).

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The Court analyzed the results obtained in addressing Defendants’ assertion that the

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Court should reduce Plaintiff’s requested fees to account for Plaintiff’s limited success.

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Having found the fees request appropriately accounted for Plaintiff’s limited success, the

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Court weighs this factor in favor of awarding the full amount of the lodestar as calculated.

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iii.

Novelty and Difficulty of the Issues

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Plaintiff asserts the “legal and factual issues in this case were complex.” Mot. at 14.

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The Court agrees and finds this factor weighs in favor of awarding the full lodestar amount.

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iv.

Undesirability of the Case

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Plaintiff argues litigation on behalf of non-profit publishers focused on the rights of

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incarcerated people is “often unattractive to the bar,” and that it is unlikely another firm

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could have served as lead counsel in this case. Mot. at 16. Further, Plaintiff argues the

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contingent fee arrangement involved a considerable assumption of financial burden on the

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firms’ behalf, making it even more undesirable. The Court finds this factor weighs in favor

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of awarding the full lodestar amount.

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v.

Nature and Length of Client Relationship

Plaintiff asserts RBGG and its lawyers have extensive experience representing

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Plaintiff since 2005. Mot. at 16. The Court finds this factor weighs in favor of awarding

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the full lodestar amount.

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vi.

Awards in Similar Cases

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Plaintiff asserts its requested fees award is “consistent with other fee awards in

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similar litigation,” including other cases where courts outside San Francisco and the

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Northern District of California awarded RBGG its San Francisco rates. Mot. at 16–17.

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The Court finds this factor weighs in favor of awarding the full lodestar amount.

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vii.

Lodestar Reduction

Having considered all the Kerr factors, the Court determines no reduction to the
lodestar amount is appropriate in this case.

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D.

Conclusion

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Plaintiff requested $2,523,914.00 in fees and expenses. The Court reduced this

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amount by $153,032.33 to account for improper block billing, excessive hours, clerical

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tasks, work not reasonably connected to the merits of a claim for which Plaintiff received

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relief, and unrecoverable expenses. The Court then determined the Kerr factors do not

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justify a reduction of this amount. Thus, the Court will award Plaintiff $2,370,881.67 in

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fees and expenses.

BILL OF COSTS

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Plaintiff’s bill of costs (Doc. 366) claims $8,426.25 in taxable costs. Defendants

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filed a response (Doc. 372) arguing the Court should reduce Plaintiff’s taxable costs by

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50% to 70% to account for Plaintiff’s limited success in litigating the case. As explained

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in detail above, the Court finds Plaintiff’s requested fees and costs adequately account for

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its limited but substantial success in this matter. The Court finds no reduction to the bill

24

of costs is appropriate.

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Accordingly,

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IT IS ORDERED Plaintiff’s Motion for an Award of Attorneys’ Fees is

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GRANTED IN PART and DENIED IN PART.

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$2,370,881.67 in attorneys’ fees and expenses.

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Defendants shall pay Plaintiff

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IT IS FURTHER ORDERED Defendants shall pay Plaintiff $8,426.25 for costs

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as outlined in Plaintiff’s Bill of Costs (Doc. 366).

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Dated this 19th day of March, 2024.

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Honorable Roslyn O. Silver
Senior United States District Judge

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