Miller v. Dugan et al

Filing 45

ORDER granting in part and denying in part 39 Motion for Attorney Fees, in favor of John Edward Miller against City of Barling, Jerrod Wayne Scott and Kevin R. Dugan. Signed by Honorable P. K. Holmes, III on June 26, 2013. (jas)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
JOHN EDWARD MILLER
v.

PLAINTIFF
Case No. 2:11-CV-02129

KEVIN R. DUGAN; JERROD WAYNE
SCOTT; and CITY OF BARLING

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiff John Edward Miller’s Motion for Assessment of
Attorney’s Fees, Expenses, and “Upward Adjustment” of Fees and Brief in Support Thereof (Doc.
39), Defendants’ Response (Doc. 41), Plaintiff’s Reply (Doc.42), and Defendants’ Sur-Reply (Doc.
43).1 For the reasons set forth below, Plaintiff’s Motion for Assessment of Attorney’s Fees,
Expenses, and “Upward Adjustment” of Fees is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff brought this action under 42 U.S.C. § 1983 of the Federal Civil Rights Act, alleging
Defendants violated his rights under the First and Fourth Amendments to the Constitution and
asserting various state law tort claims. On December 17, 2012, Plaintiff filed a Notice of
Acceptance of Defendants’ Offer of Judgment (Doc. 37). Accordingly, the Clerk entered Judgment
(Doc. 38) in favor of Plaintiff and against Defendants jointly in the amount of $40,000, plus costs
and attorney’s fees. Plaintiff then moved for an assessment of attorney’s fees and costs recoverable
under 42 U.S.C. § 1988 and 28 U.S.C. § 1920.

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The Court has reviewed and considered Plaintiff’s Reply and Defendants’ Sur-Reply, even
though both documents were filed without leave of Court, in violation of Local Rule 7.2.
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II. DISCUSSION
Plaintiff seeks a total of $2,819.80 in costs, $55,360.00 in attorney’s fees, and an upward
adjustment of attorney’s fees in the amount of $27,675.00. In addition, Plaintiff requests $6,000.00
in prejudgment interest on the damage award and postjudgment interest on the judgment to accrue
at a rate of 10%. In support of his Motion, Plaintiff submitted an itemized list of hours billed to this
case by his attorney, Stephen J. Capron (“Capron”); an itemized list of costs and expenses; the sworn
declaration of Capron; and a separate Bill of Costs (Doc. 40). The Judgment explicitly provides that
Plaintiff is entitled to recover reasonable attorney’s fees and costs. The issue here is whether the
amounts claimed by Plaintiff are reasonable. With regard to attorney’s fees, Defendants object to
the reasonableness of the number of hours expended and the upward adjustment. Defendants also
object to the award of prejudgment interest and the amount of costs.
A. Costs
Under 28 U.S.C. § 1920, a court may tax certain litigation fees as costs. Pursuant to that
statute, the Court awards the following:
Description
Filing fee
McLeroy Investigations: service of three summons
Video tape recording of Defendants’ depositions
Deposition transcripts of three of Defendants’ depositions
Deposition transcript of Plaintiff

Amount
$350.00
$150.00
$500.00
$968.80
$147.00
Total: $2,115.80

Authority
§ 1920(1)
§ 1920(1)
§ 1920(2)
§ 1920(2)
§ 1920(2)

Plaintiff’s Bill of Costs provides that the costs of this litigation total $2,115.80; however, a
separate itemized list entitled “Costs and Expenses” (Doc. 40-1) requests an additional $704.00 for
Capron’s travel expenses. The Court declines to award travel expenses incurred by Capron in
litigating this case. Such expenses generally are not recoverable under § 1920, and Plaintiff has

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presented no binding or persuasive authority compelling this Court to award such costs. See Hiegel
v. Hill, 771 F.2d 358, 360 (8th Cir. 1990) (vacating an award of costs in a § 1983 case and noting
that an attorney’s travel expenses, which are costs above those authorized by § 1920, “should be
awarded only sparingly”). The Court addresses Plaintiff’s argument that he should be allowed to
recover Capron’s travel expenses as part of the attorney’s fee award under § 1988 below.
Accordingly, Plaintiff’s total cost award, excluding attorney’s fees, is $2,115.80.
B. Attorney’s Fees
In an action to enforce a provision of § 1983, “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. The starting
point for awarding attorney’s fees under § 1988 is the time-based lodestar determination, which is
calculated by multiplying the number of hours reasonably expended by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
The lodestar calculation “provides an objective basis on which to make an initial estimate of the
value of the lawyer’s services.” Hensley, 416 U.S. at 433. There is a strong presumption that the
lodestar method yields a “reasonable” fee. Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673
(2010).
1. Hourly Rate
Plaintiff bases his claim for attorney’s fees on Capron’s hourly rate of $300.00. “As a
general rule, a reasonable hourly rate is the prevailing market rate, that is, ‘the ordinary rate for
similar work in the community where the case has been litigated.’” Moysis v. DTG Datanet, 278
F.3d 819, 828–29 (8th Cir. 2002) (quoting Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001)).
Plaintiff submitted a declaration from Capron in which he describes his educational background and

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prior experience, and avers that $300.00 per hour is his standard hourly rate for civil litigation.
Capron also claims his rate is reasonable for attorneys with similar qualifications. However,
Plaintiff did not provide any information regarding the prevailing market rate in this community.
Considering the foregoing in light of the Court’s experience with civil rights litigation and
familiarity with the prevailing market rate in the Fort Smith, Arkansas community, the Court
concludes that Capron’s requested rate is not reasonable. The Court finds that the requested hourly
rate is above the prevailing market rate, and a reasonable hourly rate for Capron is $250.00 per hour.
2. Hours Expended
Plaintiff contends that he is entitled to recover fees for 185.5 hours2 of time expended by his
attorney in litigating this matter. In their opposition, Defendants argue that the time spent on certain
tasks is excessive3 for a relatively simple case that settled well in advance of the trial date and
involved deposing only the four parties. Defendants also assert that Plaintiff is not entitled to an
award of attorney’s fees for time spent on Plaintiff’s participation in a separate legal case, dealing
with certain discovery disputes, and preparing the fee petition.
A district court has discretion to determine the number of hours to be awarded to a prevailing
party under § 1988. Gilbert v. City of Little Rock, Ark., 867 F.2d 1063, 1066 (8th Cir. 1989). In
exercising this discretion, the court “should weigh the hours claimed against [the court’s] own
knowledge, experience, and expertise of the time required to complete similar activities.” Id.

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This is the current total based on the entire record in this case. At the time of Plaintiff’s
initial request, he submitted a total of 184.5 hours. Plaintiff subsequently conceded an error in the
original calculation—a duplicate entry of 2.7 hours—but at the same time, asserted entitlement to
3.7 additional hours of compensation for reviewing Defendants’ Response and drafting a Reply.
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Defendants also objected to certain hours as duplicative; however, Plaintiff conceded that
those hours were a duplicate entry.
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(quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974)). Prevailing
parties are not entitled to recover for hours claimed that were not “reasonably expended.” Hollowell
v. Gravett, 723 F. Supp. 107, 108 (E.D. Ark. 1989) (quoting Hensley, 461 U.S. at 433). The Court
has thoroughly reviewed the invoice submitted by Plaintiff and other requested fees, and addresses
each of Defendants’ arguments below.
Defendants contend that the amount of time spent researching factual issues, interviewing
witnesses, and reviewing medical records is excessive. The Court disagrees. These tasks are not
“trivial” as Defendants suggest; rather, they are essential components of pretrial preparation. The
number of hours requested for these activities is reasonable under the circumstances. Likewise, the
Court finds that 8.5 hours for researching state tort claims and federal claims, 2.5 hours for
reviewing discovery responses, and 3.5 hours for researching a First Amendment claim do not
constitute “excessive hours spent on trivial legal tasks” and are otherwise reasonable.
Defendants maintain that Plaintiff should not receive a fee award for Capron’s time driving
to interviews, depositions, and hearings. Plaintiff argues that to the extent Capron’s travel expenses
are not recoverable as costs, he should be entitled to recover them as fees under § 1988. In addition
to the $704.00 of travel expenses requested as costs, Plaintiff’s invoice seeks $6,000 of fees for 20.0
hours of driving time. A court may reduce fees for an attorney’s travel time if full compensation
would be unreasonable under the circumstances of the case. McDonald v. Armontrout, 860 F.2d
1456, 1463 (8th Cir. 1988). Review of the billing records indicates that Plaintiff’s attorney traveled
to and from Fort Smith, Arkansas, four times during the litigation: once to interview witnesses, once
to attend three depositions and a hearing, once for Plaintiff’s deposition, and once for another
hearing and to meet with Plaintiff. The Court declines to find that the hours spent traveling for this

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case are excessive; however, the Court does find that the rate charged for this time is unreasonably
high. The Court concludes that full compensation of travel time would be unreasonable based on
the circumstances present here and will reduce the billing rate for travel time to fifty percent. See
McDonald, 860 F.2d at 1463 (affirming district court’s fifty percent reduction of the attorney’s
hourly rate for travel time). The Court again declines to award Plaintiff $704.00 in travel expenses.
Accordingly, Plaintiff will receive compensation for 20 hours of travel time at a rate of $125.00 per
hour, for a total of $2,500.00.
Defendants challenge Plaintiff’s request for fees for time expended on various discovery
disputes. According to Defendants, the disputes were necessitated by Plaintiff’s refusal to provide
discovery and were resolved in favor of Defendants. As a threshold matter, the Court notes that the
parties’ repeated failure to settle their discovery issues needlessly consumed this Court’s time and
the time of Chief U.S. Magistrate Judge Marschewski’s court. The Court analyzed the hours spent
by Plaintiff’s attorney on discovery matters, and will adjust the request as described below.
Plaintiff requests fees for time spent on researching, drafting, and discussing a Motion to
Compel Attendance at Depositions (Doc. 13), which was denied (Doc. 17). The Court views
Plaintiff’s Motion to Compel as ill-advised and unnecessary. The Court cannot find that it was
reasonable for Plaintiff’s attorney to expend time and resources in filing that Motion, and so
discounts the 3.3 hours spent on preparation and filing thereof, and the 0.2 hours spent reviewing
this Court’s Order.
The next discovery matter at issue is Plaintiff’s response to discovery propounded by
Defendants. Defendants challenge Plaintiff’s preparation of discovery responses on the ground that
Judge Marschewski entered an Order Compelling Discovery (Doc. 24) in which he granted in part

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Defendants’ first Motion to Compel incomplete responses (Doc. 15). The Court finds 4.0 hours
spent reviewing the file and responding to Defendants’ Motion to Compel (Doc. 15) to be excessive,
and will award fees for 2.0 hours of this time. Upon review of Plaintiff’s responses and in light of
the Court’s Order Compelling Discovery, the Court finds 3.9 hours for drafting Plaintiff’s responses
to discovery requests to be excessive. While Plaintiff avers that “this discovery was carefully
crafted to address all of the details necessary,” the Court believes that the Order to compel
supplemental answers and Plaintiff’s later need to provide corrected information4 establish
otherwise. The Court will therefore reduce this time to 1.95 hours, and reduces 1.9 hours spent
drafting supplemental discovery responses to 0.95 hours. The Court notes that prior to compelling
discovery, Judge Marschewski entered an Order directing the parties to confer in an attempt to get
the parties to settle their discovery disputes without further action by the Court. Between the date
of Judge Marschewski’s Order to confer and the subsequent hearing on Defendants’ first Motion to
Compel, Plaintiff’s attorney spent 5.8 additional hours of time on the same discovery issues. The
Court finds this amount of time excessive under the circumstances and declines to award fees for
these hours.
In their last challenge to time spent on discovery disputes, Defendants maintain that Plaintiff
should not recover for 4.3 hours spent researching and drafting a response to Defendants’ second
Motion to Compel (Doc. 31) because Judge Marschewski entered an Order favorable to Defendants
after a hearing on the motion. The Court reduces this time to 2.15 hours, and reduces the 2.0 hours
billed for attending the hearing to 1.0 hour, as the motion was resolved in large part in favor of

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Plaintiff had to provide corrected name and address information for several persons listed
as potential witnesses. Due to Plaintiff providing incorrect address information, it appears
Defendants were unable to obtain medical records from several medical care providers.
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Defendants. In addition, the Court discounts the 0.1 hours attributed to drafting an email about
“persistent failure to verify discovery responses,” as the record indicates that Defendants provided
verification within a reasonable time of the request, and Plaintiff also initially failed to verify his
discovery responses. See Doc. 13-4 (email communication from Plaintiff’s attorney to Defendants’
attorney dated April 10, 2012, stating “I was surprised to look back and see that we, too, had
neglected the verification”).
Plaintiff requests fees for 4.3 hours for research on fees, costs, and expenses under § 1988,
1.4 hours for drafting the instant Motion for fees, and 3.7 hours for reviewing Defendants’ Response
and preparing a reply. The Court finds these hours to be excessive under the circumstances. The
hourly rate requested by Plaintiff’s attorney is based in part on his “great deal of experience working
on Civil Rights Act cases.” (Doc. 40-2). A lawyer with such extensive experience is presumed to
be familiar with the basics of the applicable laws and should not recover for excessive hours spent
researching those laws. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983) (“A fee
applicant cannot demand a high hourly rate—which is based on his or her experience, reputation,
and a presumed familiarity with the applicable law—and then run up an inordinate amount of time
researching that same law.”). In addition, Plaintiff’s Motion fails to cite any authority from the
appropriate circuit court or any district courts within the Eighth Circuit. Therefore, the Court
declines to award 4.3 hours of time for researching the fee application, and will reduce the number
of hours for drafting the Motion to 0.70 hours and the hours for filing the Reply to 1.85 hours.
Next, the Court declines to award 0.6 hours for time spent reviewing the Local Rules of this
Court. While this time is not challenged by Defendants, the Court notes that Plaintiff failed to abide
by several of these Local Rules. Many of the discovery disputes and much of the time spent

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supplementing discovery responses could have been avoided if Plaintiff had complied with Local
Rule 33.1(b), which requires the ground or grounds for objecting to an interrogatory or request for
production to be stated with particularity. Also, Plaintiff filed a Reply (Doc. 42) without seeking
leave of Court. See Local Rule 7.2(b) (indicating that the only reply that may be filed without leave
of Court is a reply to a response to a motion for summary judgment).
Finally, the Court finds the time spent by Plaintiff’s attorney assisting in another attorney’s
presentation of Plaintiff as a witness in a purportedly related case (the “Kirby case”) to be excessive
or otherwise unnecessary to Plaintiff’s case. Plaintiff has failed to present any evidence that the
testimony from the Kirby case was actually used in the case at bar or that any other work regarding
the Kirby case contributed to obtaining the end result here, and instead relies on conclusory
assertions in his Response. Cf. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995
F.2d 414, 420 (3d Cir. 1993) (holding that a court may award fees earned in a separate litigation
where plaintiff can prove that the fees “resulted in work product that was actually utilized in the
instant litigation, that the time spent on other litigation was ‘inextricably linked’ to the issues raised
in the present litigation, and that plaintiff has not previously been compensated for those fees”).
Accordingly, the Court declines to award fees for 7.3 hours of time spent on matters regarding the
Kirby case.
In sum, Plaintiff requested fees for 185.5 hours of his attorney’s time. Defendants contested
much of this time, and contend that Plaintiff should be awarded fees for a maximum of 85–100
hours. Incorporating the adjustments described above, the Court will award attorney’s fees for 133.3
hours of time at a rate of $250.00 per hour and 20.0 hours of travel time at a rate of $125.00 per
hour, for a total of $35,875.00.

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3. “Upward Adjustment”
Upward adjustments to an award of attorney’s fees should only be made in rare and
exceptional cases, and only where the movant has provided specific evidence in support. Blum v.
Stenson, 465 U.S. 886, 898–902 (1984). Factors already reflected in the initial determination of fees
under the lodestar method cannot serve as independent bases for increasing the basic fee award.
Gilbert, 867 F.2d at 1067. Here, Plaintiff maintains that an upward adjustment of 50% is
appropriate because of the “highly undesirable nature of this type of case” and because the case
“accomplished a substantial public benefit.” The Court finds that this is not a rare and exceptional
case that merits an upward adjustment of attorney’s fees. Plaintiff has failed to demonstrate either
exceptional service performed or that a result of an exceptional nature was obtained. The
“undesirable nature” of the case is accounted for in Plaintiff’s counsel’s hourly rate, and the Court
fails to see how a private settlement involving one plaintiff achieved the public benefit claimed by
Plaintiff. Moreover, Plaintiff has not provided the Court with any specific evidence of his general
assertion that an upward adjustment is warranted here.
C. Prejudgment and Postjudgment Interest
“Interest shall be allowed on any money judgment in a civil case recovered in a district
court.” 28 U.S.C. § 1961(a). Therefore, the Court will award postjudgment interest on the full
amount of damages from the date of judgment, to accrue at a rate of .15%.
Plaintiff maintains that prejudgment interest should be awarded by statute5 at a rate of 10%
on the damage award. Defendants object to the award of prejudgment interest on the offer of
judgment on the ground that the offer was not a liquidated sum until it was extended, and

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Plaintiff does not specify a specific statutory provision.
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prejudgment interest is normally only awarded on liquidated sums that are established at the
inception of a lawsuit.

Section 1983 does not expressly provide for an award of prejudgment

interest. A district court has discretion to award prejudgment interest. E.E.O.C. v. Rath Packing
Co., 787 F.2d 318, 334 (8th Cir. 1986). The Court finds that prejudgment interest is not needed to
fully compensate Plaintiff, nor is it justified by considerations of fairness or the remedial purposes
of §§ 1983 and 1988.
III. CONCLUSION
For the reasons set forth above, IT IS ORDERED that Plaintiff’s Motion for Attorney’s Fees
and Costs (Doc. 39) is GRANTED IN PART, and Plaintiff is awarded attorney’s fees in the amount
of $35,875.00 and costs in the amount of $2,115.80. Plaintiff’s Motion (Doc. 39) is DENIED to the
extent it seeks an upward adjustment of attorney’s fees and to the extent it seeks an award of costs
and fees in an amount other than $35,875.00 in fees and $2,115.80 in costs.
IT IS FURTHER ORDERED that postjudgment interest is to accrue on the judgment at a rate
of .15%.
IT IS SO ORDERED this 26th day of June, 2013.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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