Black v. Correa et al

Filing 298

REPORT OF SPECIAL MASTER ON PLAINTIFF'S 272 MOTION FOR ATTORNEY FEESAND DEFENDANTS OBJECTIONS TO PLAINTIFF'S 281 MOTION FOR COSTS. Signed by Magistrate JUDGE LESLIE E KOBAYASHI on January 29, 2010. (bbb, )CERTI FICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. (Order adopting sent to [e-mail] on 01/29/2010

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) Plaintiff, ) ) vs. ) ) CITY AND COUNTY OF HONOLULU, ) ) Defendant. ) _____________________________ ) SHARON BLACK, CIVIL NO. 07-00299 DAE-LEK

REPORT OF SPECIAL MASTER ON PLAINTIFF'S MOTION FOR ATTORNEY FEES AND DEFENDANT'S OBJECTIONS TO PLAINTIFF'S MOTION FOR COSTS Before the Court, pursuant to a designation by United States District Judge David Alan Ezra, are Plaintiff Sharon Black's ("Plaintiff") Motion for Attorney Fees ("Motion"), filed on October 30, 2009, as amended by Plaintiff's supplement ("Supplement") filed on November 23, 2009, and Defendant City and County of Honolulu's ("the City") Objections and Memorandum in Opposition to Plaintiff's Motion for Costs ("Objections"), filed December 22, 2009. December 15, 2009. Plaintiff filed her Motion for Costs on This Court construes Plaintiff's Motion for Plaintiff requests an award of

Costs as her Bill of Costs.

$312,630.00 in attorneys' fees, $14,731.13 in general excise tax, and $8,395.00 in non-taxable costs.1 In the Bill of Costs, The City filed

Plaintiff requests $13,342.10 in taxable costs.
1

The Supplement amends the Motion's original request of $319,883.00 in attorneys' fees and $23,492.00 in non-taxable costs.

its memorandum in opposition to the Motion on December 4, 2009, and Plaintiff filed her reply on December 19, 2009. The Court

finds these matters suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`I ("Local Rules"). After reviewing the parties' submissions and the

relevant case law, the Court FINDS AND RECOMMENDS that Plaintiff's Motion be GRANTED IN PART AND DENIED IN PART, and that the City's Objections to Plaintiff's Bill of Costs be GRANTED IN PART AND DENIED IN PART. The Court RECOMMENDS that

the district judge GRANT Plaintiff $92,827.71 in attorneys' fees and DENY Plaintiff's request for non-taxable costs. The Court

also RECOMMENDS that the district judge tax $7,159.32 in costs against the City and in favor of the City and DENY the remainder of Plaintiff's requested costs WITHOUT PREJUDICE. BACKGROUND On June 1, 2007, Plaintiff filed her Complaint against Defendants Boisse Correa, City and County of Honolulu-Honolulu Police Department ("HPD"), Glen Kajiyama, Stephen Watarai, Kevin Lima, Carlton Nishimura, Owen Harada, William Axt, City and County of Honolulu-Medical Examiners Office ("MEO"), Kanthi De Alwis, William W. Goodhue, Gayle Suzuki, Alicia Kamahele, City and County of Honolulu-Human Resources Department ("HRD"), Denise Tsukayama, Institute for Human Services ("IHS"), Lynn Maunakea, 2

City and County of Honolulu-Prosecuting Attorney Department ("PAD"), Chris Van Marter, Hawaii Government Employees Association ("HGEA"), Lee Matsui, and Mufi Hannemann, Mayor of the City and County of Honolulu. Plaintiff was hired by HPD in 1992 as a project coordinator. issues. Her duties included researching mental health Plaintiff filed a sexual

Plaintiff is a member of HGEA.

harassment lawsuit in August 1997.

Defendant Correa, the HPD

Chief of Police, was one of the defendants in the sexual harassment action. The action was settled in November 2001. The

settlement agreement provided for a $612,500.00 cash payment to Plaintiff. The agreement included various obligations which

expired in November 2004 and various other continuing obligations. In the instant action, Plaintiff alleges that HPD

began a "program of harassment" against her in October 2004 in retaliation for filing the sexual harassment action. On or about May 2005, Defendant Harada gave Plaintiff an assignment to investigate the wait time for HPD officers at Queens Hospital. During this assignment, Plaintiff became

concerned about the number of suicidal people who, after being escorted to Queens Hospital by HPD officers, committed suicide shortly after being released from Queens Hospital. Plaintiff,

who had previously conducted authorized research at the MEO, called and asked for permission to conduct research about the 3

suicides.

Defendants De Alwis and Kamahele asked Plaintiff to Defendant De Alwis wrote back to

put her request in an e-mail.

Plaintiff, giving her permission to conduct research and providing her with extensive confidential information about the suicides. e-mail. The e-mail was sent to both Plaintiff's work and home

Plaintiff conducted research at MEO from June 2005

through August 2005, with the assistance, and in full view of, various MEO staff. Plaintiff alleged that none of the MEO staff

informed her of any security procedures. On August 4, 2005, Defendant Kamahele accused Plaintiff of unauthorized printing. documents the next day. Plaintiff returned the printed

Defendant De Alwis subsequently made an

oral complaint to Defendant Kajiyama about Plaintiff's printing of documents. The complaint led to an administrative

investigation and criminal charges of unauthorized computer access and theft in the fourth degree for unauthorized copying. Plaintiff was tried and acquitted of both charges. Plaintiff

alleged that the charges were based on fraudulent statements by HPD and MEO personnel and were caused by negligent supervision within HPD and the negligent information security policies of MEO. The Complaint alleged the following claims: negligence against the MEO and MEO agents regarding the maintenance of confidential information ("Count 1"); negligent supervision 4

against the HPD and HPD agents ("Count 2"); negligent hiring, training, and supervision against HPD, HPD agents, and Mayor Hannemann ("Count 3"); negligent hiring, training, and supervision against MEO and MEO agents ("Count 4"); breach of contract against HGEA and Defendant Matsui for failure to investigate and represent Plaintiff in the incidents at issue in this case ("Count 5"); negligent infliction of emotional distress ("NIED") against HPD, MEO, HGEA, Mayor Hannemann, and their agents ("Count 6"); defamation against Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, and Van Marter ("Count 7"); conspiracy against Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, Van Marter, HRD, and Tsukayama ("Count 8"); interference with business relationship against Defendants IHS, Maunakea, HPD, and HPD agents ("Count 9");2 retaliatory breach of employment contract against HPD and HPD agents ("Count 10"); retaliatory breach of the 2001 settlement agreement against Defendants HPD, Correa,

Plaintiff alleged that HPD and its agents knew that she was involved with feeding the homeless on her personal time and that HPD agents reported derogatory information about her to IHS. IHS, through Defendant Maunakea, the director of IHS, revoked her authorization to use the IHS cooking facilities. Plaintiff alleged that Defendant Maunakea knew or should have known the accusations HPD informed her of were false, pretextual, and retaliatory. Plaintiff also alleged that Defendant Maunakea treated her more harshly than other persons who used the IHS cooking facilities. 5

2

Kajiyama; Watarai; Lima; Nishimura, Harada, Axt, HRD, and Tsukayama ("Count 11");3 sexual harassment against HPD and agents of HPD ("Count 12"); retaliation against Defendants HPD, Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, and Axt ("Count 13"); a 42 U.S.C. § 1983 claim for violation of her First Amendment right to petition the government against HRD and Tsukayama ("Count 14"); a § 1983 claim for violation of her First Amendment and Fourteenth Amendment right to file a lawsuit against Defendants HPD, Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, and Axt ("Count 15"); a § 1983 claim for violation of her First Amendment right to association against Defendants MEO, De Alwis, Goodhue, Suzuki, and Kamahele ("Count 16"); § 1983 claims for violations of her Fourth Amendment right to be free from arrest and from prosecution without probable cause, and violations of her equal protection rights against Defendants HPD, Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, and Van Marter ("Count 17", "Count 18", and "Count 19"); intentional infliction of emotional distress ("IIED") against all defendants ("Count 20"); a claim for punitive damages against all defendants ("Count 21"); and a claim for injunctive relief against Defendants Hannemann, HPD,

Plaintiff alleged that the 2001 settlement agreement required HPD to correct and prevent harassment. Defendant Tsukayama, as the representative of HRD, was responsible for investigating any breaches of these duties. 6

3

MEO, and PAD ("Count 22").

Plaintiff sought: back wages and

benefits; reinstatement, "instatement", promotion, or front pay in lieu of job changes; general damages; compensatory damages; exemplary/punitive damages; attorney's fees and costs; injunctive relief; declarative relief; and any other appropriate relief. Defendants HPD, MEO, HRD, Tsukayama, PAD, and Mayor Hannemann ("City Defendants") filed a motion to dismiss on July 11, 2007, and Defendants De Alwis, Goodhue, Suzuki, and Kamahele ("Joinder Parties") filed a substantive joinder thereto on July 18, 2007. Defendants HGEA and Matsui ("HGEA Defendants")

filed a motion to dismiss on July 23, 2007, and Defendants Correa, Kajiyama, and Nishimura ("Correa Defendants") filed a motion to dismiss on July 25, 2007. On September 20, 2007, the

district judge issued an order granting the HGEA Defendants' motion and granting in part and denying in part the City Defendants' motion and the Correa Defendants' motion.4 Thus, the

HGEA Defendants and Mayor Hannemann were dismissed from the action;5 Counts 6, 8, 9, 10, 12, 14, 17, 18, and a portion of 13 were dismissed, and Counts 11, 14, 15, 19, and 21 were stricken as redundant. On October 31, 2007, the parties stipulated to dismiss
4

2007.
5

The district judge issued an amended order on October 30,

The parties also stipulated to dismiss all claims against the HGEA Defendants with prejudice on October 31, 2007. 7

all claims against Defendants IHS and Maunakea with prejudice. On November 9, 2007, pursuant to stipulation, Plaintiff filed her First Amended Complaint.6 The First Amended Complaint

replaced HPD, MEO, HRD, and PAD with the City, and added Defendant Wayne Hashiro, in his official capacity, for purposes of injunctive relief. The First Amended Complaint alleged the

following claims: negligence against Defendants the City, De Alwis, Goodhue, Suzuki, and Kamahele for MEO's information security policy ("Count 1"); negligent acts during supervision against Defendants the City, Lima, Nishimura, Harada, and Axt ("Count 2"); negligent hiring, training, and supervision against Defendants the City and Hashiro ("Count 3"); NIED against Defendants Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, and Kamahele ("Count 4"); defamation against Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, and Van Marter ("Count 5"); conspiracy against Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, Van Marter, and Tsukayama ("Count 6"); retaliation in violation of various laws, including Hawai`I Revised Statutes § 378-62 and Title VII, against Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, and Axt ("Count 7"); a § 1983 claim for

On November 10, 2007, Plaintiff filed an Errata to the First Amended Complaint to correct or clarify various matters. 8

6

violation of her First Amendment right to association against Defendants MEO, De Alwis, Goodhue, Suzuki, and Kamahele ("Count 8"); a § 1983 claim/malicious prosecution claim for violation of her right to be free from prosecution without probable cause ("Count 9"); IIED against all defendants ("Count 10"); a request for injunctive relief ("Count 11"). On November 19, 2007, Defendants Correa, Kajiyama, Watarai, Lima, Nishimura, Harada, Axt, De Alwis, Goodhue, Suzuki, Kamahele, Tsukayama, Van Marter, and Hashiro filed a Motion to Dismiss Pursuant to Rule 12(b)(6); or Alternatively, Motion for More Definite Statement Pursuant to Rule 12(e); or, Alternatively, Motion to Strike Pleadings Pursuant to Rule 12(f). On January 22, 2008, the district judge issued an order granting the motion in part and denying it in part. The district judge

dismissed the portions of Count 7 alleging violations of 42 U.S.C. §§ 1981, 1985, and 1986; and the portion of Count 8 alleging a claim against the City. The district judge also noted

that Plaintiff agreed to delete Count 11. On August 18, 2008, the district judge issued his Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment ("Summary Judgment Order"). The district judge

granted summary judgment in favor of all defendants as to Counts 4, 6, and 8. The district judge granted summary judgment in

favor of Defendants Axt and Suzuki as to all claims against them 9

because Plaintiff conceded that she did not have any evidence against them. The district judge also granted summary judgment

in favor of: Defendant Van Marter as to all claims against him; Defendants Lima, Watarai, Nishimura, and Harada as to Plaintiff's § 378-62 claim; and Defendants De Alwis, Goodhue, Kamahele, Tsukayama, Hashiro, Harada, the MEO, and Lima as to Plaintiff's IIED claim. On October 31, 2008, Defendants filed a Motion to Dismiss for Lack of Jurisdiction. On February 2, 2009, the

district judge issued and order granting the motion in part and denying it in part without prejudice. The district judge

dismissed Plaintiff's negligence based claims (Counts 1, 2, and 3), the portion of Count 7 alleging § 1983 constitutional claims, and Count 10, Plaintiff's IIED claim. The motion was denied

without prejudice as to Count 5 - Plaintiff's defamation claim, Count 9 - Plaintiff's malicious prosecution claim, and the portions of Count 7 alleging retaliation in violation of § 378-62 and Title VII. Defendants filed another motion for summary judgment on April 3, 2009. On June 22, 2009, the district judge issued an The

order granting the motion in part and denying it in part.

district judge granted summary judgment in favor of Defendants as to Count 5 and the portion of Count 7 alleging retaliation in violation of § 378-62. The district judge also granted summary 10

judgment in favor of Defendants Kamahele, Goodhue, De Alwis, Watarai, Lima, Nishimura, and Harada as to Count 9. The district

judge denied summary judgment as to Count 9 against Defendants Correa and Kajiyama and as to the portion of Count 7 alleging retaliation in violation of Title VII against the City. A jury trial began on October 6, 2009. On October 9,

2009, the district judge granted the defense's oral motions to dismiss Defendants Correa and Kajiyama and denied the City's motion to dismiss the Title VII claim. Thus, only Plaintiff's On October 16, 2009,

Title VII claim was submitted to the jury.

the jury returned a verdict in favor of Plaintiff and awarded Plaintiff $150,000.00 in emotional damages. Final judgment was

entered on October 27, 2009 in favor of Plaintiff and against the City with respect to her Title VII retaliation claim and in favor of Defendants as to all other counts. On October 26, 2009, the City filed a Renewed Rule 50(b) Motion for Judgment as a Matter of Law and/or in the Alternative Rule 59 Motion for New Trial ("Rule 59 Motion"). The

district judge denied the motion in a November 25, 2009 order. In the instant Motion, Plaintiff argues that she is the prevailing party pursuant to 42 U.S.C. § 2000e-5(k) and seeks $319,883.00 in attorney's fees and $23,493.00 in non-taxable costs. hour. The requested fees represent 1,163.21 hours at $275 per Plaintiff contends that the requested hourly rate and the 11

number of hours expended are reasonable because the action was difficult to litigate due to the lack of direct evidence, the prominent positions some of the defendants have in the community, and the communication difficulties between Plaintiff and her counsel, Mark Beatty, Esq. Further, although Mr. Beatty has only

been practicing law since 2004, he has significant other experiences that contributed to the case. Plaintiff argues that

her jury verdict on the Title VII claim against the City essentially proved the claims of defamation, conspiracy, and retaliation which she alleged against the other defendants. Plaintiff also argues that a higher award of attorney's fees is warranted because her action achieved a meaningful public benefit. As to the request for non-taxable costs, Plaintiff

argues that Mr. Beatty is entitled to $8,395.00 that he incurred to attend two conferences during which he consulted with experienced attorneys about Plaintiff's case. He also requests

$15,098.00 in general excise taxes on his attorney's fees as a non-taxable expenses. In her Supplement, Plaintiff clarifies that Mr. Beatty received his law degree in June 2004,7 he worked as an intern at the River of Life legal clinic from August 2001 to June 2003 and

The Supplement states June 2006, but this is apparently a typographical error because the Hawaii State Bar Association website states that Mr. Beatty was admitted to the bar in June 2004. 12

7

he filed a federal action as a pro se litigant in May 2001.

The

case was decided on summary judgment and appealed to the Ninth Circuit. Plaintiff asks the Court to consider Mr. Beatty's legal Plaintiff

experience before he was admitted to the Hawai`I bar.

argues that $175 per hour is a reasonable hourly rate for Mr. Beatty, and there are other reasons which warrant increasing the rate further. Plaintiff points to the two conferences which

Mr. Beatty attended and states that experienced experts helped him come up with a trial strategy during the conference sessions. This was the trial strategy Mr. Beatty used at trial. Plaintiff

also argues that Mr. Beatty is entitled to a higher rate because he took the case on a contingency basis, which has inherent risks. Plaintiff also supplements the attorney's fee request in the Motion to include work done by Bruce Sherman, Esq. Plaintiff also amends her request to seek a total of 1,124.71 hours for Mr. Beatty. Mr. Beatty deducted various hours for work

done on the claims against the HGEA Defendants and for hours which he could not provide supporting information. also added time spent on post-trial motions. amended request is as follows: Attorney Fees for Mark Beatty
8

Mr. Beatty

Thus, Plaintiff's

$309,897.508

The Court notes that there was a mathematical error in Mr. Beatty's calculation of his total hours. The Court has corrected (continued...) 13

GE taxes for Mark Beatty Attorney Fees for Bruce Sherman GE taxes for Bruce Sherman Non taxable Expenses for Mark Beatty Total

$ 14,602.37 $ 2,732.50 $ 128.76 $ 8,395.00 $335,756.13

[Supplement at 10; Exh. 10 to Decl. of Mark Beatty ("Beatty Suppl. Decl.").] In its memorandum in opposition to the Motion, the City argues that the Court should consider awarding no attorney's fees to Plaintiff because her fee request "is grossly inflated and filed in bad faith." [Mem. in Opp. at 2.] The City argues that

the claim which Plaintiff prevailed on was only a small portion of her case. The original Complaint named twenty-two defendants, Further,

alleged twenty counts, and was ninety-one pages long.

her claims against the HGEA Defendants and IHS and Maunakea ("IHS Defendants") were wholly distinct from her claims against the other defendants. Plaintiff agreed to dismiss the claims against

the HGEA Defendants and the IHS Defendants with prejudice. Plaintiff's First Amended Complaint, as amended by her errata, alleged ten claims. Only two claims went to trial, the Title VII

retaliation claim against the City, and the malicious prosecution claim against Defendants Correa and Kajiyama. prevailed on her claim against the City. Plaintiff only

The City argues that

Plaintiff inflated the fees incurred in this case by overly

(...continued) the error and adjusted Plaintiff's request accordingly. 14

8

complicating the claims alleged. The City also contends that Mr. Beatty unnecessarily prolonged the case with unrealistic settlement demands. repeatedly alleged that the case was worth millions. He

At trial,

he requested general damages between $200,000.00 and $300,000.00. The jury only awarded $150,000.00. Further, the City argues that

the significant problems between Plaintiff and Mr. Beatty unnecessarily increased the fees in this case. The City argues that the following specific time entries should be excluded in their entirety: 98.0 hours attending seminars; 31.5 hours attributable to the conflict between Plaintiff and Mr. Beatty; 15.0 hours trying to obtain a restraining order to stop Plaintiff's criminal trial; 42.0 hours spent attending her criminal trial; 34.5 hours representing Plaintiff before the HPD Administrative Review Board; 17.0 hours on an unsuccessful motion for reconsideration; and 7.5 hours or more spent waiting for the jury to return the verdict. The City

further argues that the time for the following tasks is excessive and should be reduced: 7.2 hours writing the attorney-client agreement; 136.5 hours drafting the Complaint and First Amended Complaint; 27.0 hours preparing a settlement brochure; 35.0 hours relating to the opposition to the motion to dismiss filed January 4, 2008; 103.0 hours relating to the opposition to the motion for summary judgment filed July 24, 2008; 9.0 hours 15

relating to a status conference on default judgment; 12.0 hours preparing settlement conference statements; 103.0 hours preparing and taking ten depositions; 8.0 hours preparing Plaintiff's pretrial statement; 16.0 hours compiling trial exhibits; 3.0 hours writing subpoenas for trial witnesses; 19.0 hours billed per trial day; and 61.5 hours relating to the instant Motion. The City argues that the Court should also reduce Mr. Beatty's time because he did not provide adequate documentation and because he had to perform all of the tasks that a secretary or paralegal would normally perform because he does not have an office staff. The City also argues that the Court

must reduce Mr. Beatty's time for work done on unrelated, unsuccessful claims. Further, the City asserts that the Plaintiff provides no

requested hourly rate is unreasonable.

support for Mr. Beatty's rate, and he advertises that his hourly rate for litigation representing plaintiffs in similar cases is $100 per hour. Plaintiff has not submitted any evidence of the The attorneys

prevailing market rate for comparable attorneys.

Plaintiff refers to have more skill and experience than Mr. Beatty has. The City also notes that, although Mr. Beatty

was admitted to the bar in June 2004, according to his resume, he apparently did not begin practicing law until 2006. Thus, when

he took Plaintiff's case, he had no real legal experience. If the Court is inclined to find that attorney's fees 16

are warranted, the City argues that Plaintiff is entitled to no more than 400 hours at $100 per hour, for a total of $40,000.00. [Mem. in Opp. at 2.] Plaintiff is not entitled to any upward

adjustment because the case should have been a simple Title VII retaliation case, there was no public benefit, the quality of Mr. Beatty's work was not exceptional, and the case did not preclude Mr. Beatty from doing other work. Finally, the City

argues that Plaintiff is not entitled to recover the costs of Mr. Beatty's general education at seminars. In her reply, Plaintiff states that Mr. Beatty excluded time spent on the claims against the HGEA Defendants, the IHS Defendants, and Mayor Hannemann. She reiterates that all other

claims were subsumed in the Title VII claim, which she obtained significant relief on. Thus, Mr. Beatty's fees should not be Plaintiff also argues that the City

reduced for limited success.

has unclean hands because it never made a good faith settlement offer. Plaintiff contends that the disputes she had with

Mr. Beatty were prompted by the emotional distress which the City caused and that conflicts with clients under emotional distress are part of their representation. Plaintiff argues that all of

the specific entries challenged by the City are compensable and that Mr. Beatty's documentation is adequate. Finally, Plaintiff

concedes that Mr. Beatty advertises a $100 per hour rate, but this is only an entry-level rate for new customers and it is 17

inapplicable in this case.9 Bill of Costs In her Bill of Costs, Plaintiff seeks $13,342.10 in taxable costs and states that her request was timely filed within thirty days of the district judge's order on the Rule 59 Motion, as required by Local Rule 54.2. Plaintiff argues that all of the

ten witnesses who she deposed played some part in the trial and Defendants listed all ten as potential trial witnesses, which Plaintiff argues is an admission that they had relevant information. As for her copying costs, Plaintiff states that

counsel made three copies of motion documents, two courtesy copies for the court and one copy for himself. For the

Complaint, Plaintiff included three filed copies and the copies used to serve Defendants. In its Objections, the City argues that Plaintiff waived the taxation of costs because her Bill of Costs was untimely. The district judge denied the Rule 59 Motion on According to the current Local Rules, which

November 25, 2009.

took effect on December 1, 2009 and apply to all actions pending on that date, a party has fourteen days from an order denying a Rule 59 motion to serve a bill of costs. Plaintiff's Bill of

Plaintiff's reply requests the same award sought in the Motion, not the adjusted award sought in the Supplement. This Court, however, will hold Plaintiff to the concessions she made in the Supplement. 18

9

Costs was therefore due on December 9, 2009, but she did not file it until December 15, 2009. The City, however, acknowledges that

the district court may apply the previous version of the Local Rules when justice requires. The City also objects because the Bill of Costs does not contain a verification that the costs were necessarily incurred in this case. As to Plaintiff's specific requests, the

City objects to the request for videotaped depositions because there was no indication that any of the witnesses would be unavailable for trial. According to the City, Mr. Beatty

informed defense counsel that the reason for the videotaped depositions was so that Plaintiff, who chose not to attend the depositions, could watch them. The City argues that the costs of

videotaping depositions for a client's convenience is not taxable. The City also argues that the costs of Goodhue's,

Tsukayama's, and Axt's depositions should be disallowed in their entirety because they did not testify at trial and the Bill of Costs does not establish that those deposition transcripts are taxable. The City states that the only reason it included those

witnesses on its witness list was because Plaintiff included them in his pretrial statement. The City contends that the inclusion

was not an admission that those witnesses had relevant information for trial. The City also objects to the additional

cost of condensed and electronic deposition transcripts. 19

The City argues that the $150 cost for autopsy reports and the costs to serve the Complaint on all of the individual defendants were not necessarily incurred. Finally, the City

contends that Plaintiff's copying costs were not necessarily incurred because documents were longer than they needed to be. For example, Plaintiff had 1,337 pages of trial exhibits, but only admitted 70 pages at trial. DISCUSSION I. Entitlement to Attorneys' Fees The jury found in favor of Plaintiff on her Title VII retaliation claim against the City and awarded her $150,000.00 in damages. Title VII provides that, "[i]n any action or proceeding

under this subchapter the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee (including expert fees) as part of the costs[.]" 42 U.S.C. § 2000e-5(k).

Plaintiff is clearly the prevailing party as to her Title VII claim because the judgment based on the jury verdict constitutes a "judicially sanctioned change in the legal relationship of the parties." See Buckhannon Bd. & Care Home, Inc. v. W. Vir. Dep't Plaintiff is

of Health & Human Res., 532 U.S. 598, 605 (2001).

therefore eligible for an award of attorneys' fees pursuant to § 2000e-5(k). The City argues that Plaintiff should not receive any award because her request is grossly inflated, indicating bad 20

faith. cases.

Attorneys' fee awards are not mandatory in Title VII See § 2000e-5(k) (stating that the court "may allow the

prevailing party . . . a reasonable attorney's fee" (emphasis added)). This Court agrees with the City that Mr. Beatty's

requested hourly rate and number of hours expended are not reasonable. See Section II.A. and B. infra. The Court, however,

does not find the requested award to be so grossly exaggerated as to indicate bad faith. The Court therefore FINDS that Plaintiff

is entitled to an award of attorneys' fees pursuant to § 2000e5(k). The Court, however, notes that Plaintiff is not the prevailing party as to any of the defendants besides the City, nor is she the prevailing party as to any of the other claims against the City. Plaintiff did not achieve a judicially Final

sanctioned change in any other legal relationship.

judgment was entered in Defendants' favor as to all claims except the Title VII claim against the City. See Local Rule LR54.2(a)

("The party entitled to costs shall be the prevailing party in whose favor judgment is entered[.]"). The Court will address

whether Plaintiff's requested award must be reduced to account for her limited success infra Section II.C. II. Calculation of Attorneys' Fees Courts calculate attorneys' fee awards in Title VII cases based on the traditional "lodestar" calculation set forth 21

in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

See, e.g.,

Bjornson v. Dave Smith Motors/Frontier Leasing & Sales, 578 F. Supp. 2d 1269, 1285 (D. Idaho 2008). The court must determine a

reasonable fee by multiplying "the number of hours reasonably expended on the litigation" by "a reasonable hourly rate." Hensley, 461 U.S. at 433. Second, the court must decide whether

to adjust the lodestar amount based on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been subsumed in the lodestar calculation. See Fischer v. SJB-P.D. Inc., 214 F.3d

1115, 1119 (9th Cir. 2000) (citation omitted). The factors the Ninth Circuit articulated in Kerr are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70. Factors one through five have been See Morales v. City of San Further, the Ninth

subsumed in the lodestar calculation.

Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).

Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567 (1992), held that the sixth factor, whether the fee is fixed or 22

contingent may not be considered in the lodestar calculation. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). Once calculated, the "lodestar" is See Pennsylvania v. Delaware Valley

presumptively reasonable.

Citizens' Council for Clean Air, 483 U.S. 711, 728 (1987); see also Fischer, 214 F.3d at 1119 n.4 (stating that the lodestar figure should only be adjusted in rare and exceptional cases). Plaintiff requests the following lodestar amount for work counsel performed on this case: ATTORNEY Mark Beatty Bruce Sherman Bruce Sherman HOURS 1126.9 21.7 4.5 RATE $275 $100 $12510 Subtotal State Excise Tax of 4.712% TOTAL REQUESTED LODESTAR LODESTAR $309,897.50 $ $ 2,170.00 562.50

$312,630.00 $ 14,731.13 $327,361.13 Mr. Beatty

[Supplement at 10, Exhs. 8-10 to Beatty Suppl. Decl.] was admitted to the Hawai`I bar in 2004.

Mr. Sherman was

admitted to the Hawai`I bar in 1993, the California bar in 1990, and the Alaska bar in 1980.
10

[Exh. 7 to Beatty Suppl. Decl.

Plaintiff states that the work agreement between Mr. Beatty and Mr. Sherman provided that Mr. Sherman's $125 hourly rate for this case would be reduced to $100 when there was more than ten hours of work on a particular subject. [Supplement at 3.] 23

(Bruce Sherman resume).] A. Reasonable Hourly Rate In determining whether an hourly rate is reasonable, the Court considers the experience, skill, and reputation of the attorney requesting fees. 840 & n.6 (9th Cir. 2002). See Webb v. Ada County, 285 F.3d 829, The reasonable hourly rate should See id.;

reflect the prevailing market rates in the community.

see also Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as amended on denial of reh'g, (1993) (noting that the rate awarded should reflect "the rates of attorneys practicing in the forum district"). In addition to their own statements, attorneys are required to submit additional evidence that the rate charged is reasonable. See Jordan v. Multnomah County, 815 F.2d 1258, 1263 Plaintiff submitted a 2006 list published by

(9th Cir. 1987).

the Pacific Business News of twenty-five Hawai`I law firms, most of which provided the range of hourly rates charged by their partners and associates. ("Beatty Motion Decl.").] [Motion, Exh. 2 to Decl. of Mark Beatty Plaintiff also submitted a declaration The Court,

from Venetia Carpenter-Asui, Esq., with her reply.

however, notes that Plaintiff could have, and should have, submitted Ms. Carpenter-Asui's declaration with the Motion. This

Court generally will not consider new evidence raised in a reply. Even if the Court considered Ms. Carpenter-Asui's declaration, it 24

would not alter this Court's finding regarding Mr. Beatty's reasonable hourly rate. This Court is familiar with the prevailing rates in the community for similar services performed by attorneys of comparable experience, skill, and reputation. The Court is also

familiar with the rates awarded to attorneys in other cases. Mr. Beatty was admitted to the Hawai`I bar in 2004. This Court

finds that Mr. Beatty's experiences in the legal field prior to his admission to the bar and his other professional experience, such as his military or linguistics background, are not relevant to the reasonable hourly rate for his legal services in this case. Mr. Beatty admits that he had been licensed to practice

law for less than three years when he took the instant case. This Court has awarded other attorneys with approximately the same number of years in practice $130 to $150 per hour. See,

e.g., Sakaria v. FMS Inv. Corp., CV 08-00330 SOM-LEK, Report of Special Master on Plaintiff's Motion for Attorneys' Fees and Costs, filed 5/12/09 (dkt. no. 22) at 6-7 (reasonable rate for attorney admitted in 2004 was $150, although attorney requested $175);11 Horizon Lines, LLC. v. Kamuela Dairy Inc., et al., CV NO 08-00039 JMS-LEK, Amendment to Findings and Recommendations for Entry of Default Judgment, Filed June 16, 2008, filed 9/3/08 A stipulation to dismiss the case was filed on May 13, 2009. Thus, the district judge did not issue a ruling on this Court's Report of Special Master in Sakaria. 25
11

(dkt. no. 21) (attorney admitted in 2006 requested $160 per hour and was awarded $140 per hour, and attorney admitted in 2007 requested $145 and $150 per hour and was awarded $130 per hour);12 Won, et al. v. England, et al., CV 07-00606 JMS-LEK, Report of Special Master On Defendant's Motion for Attorney's Fees and Costs, filed 7/15/08 (dkt. no. 84), at 7-8 (attorney admitted in 2006 requested $155 per hour and was awarded $130 per hour).13 Based on this Court's knowledge of the prevailing market rates in the community for similar work by attorneys of comparable skill, experience, and reputation, and based on this Court's rulings in prior cases, this Court finds that Mr. Beatty's requested hourly rate of $275 is unreasonable. This

Court FINDS that a reasonable hourly rate for Mr. Beatty's work in this case is $140. The Court finds that the requested hourly

rates of $100 and $125 for Mr. Sherman are manifestly reasonable. B. Hours Reasonably Expended Beyond establishing a reasonable hourly rate, a party seeking attorney's fees bears the burden of proving that the fees and costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained.
12

See Tirona

The district judge adopted this Court's Amended Findings and Recommendation in Horizon Lines on September 29, 2008. The district judge adopted this Court's Report of Special Master in Won on August 18, 2008. 26
13

v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted). A court must guard against awarding

fees and costs which are excessive, and must determine which fees and costs were self-imposed and avoidable. See id. at 637

(citing INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir. 1987)). A court has "discretion to `trim fat' from, or

otherwise reduce, the number of hours claimed to have been spent on the case." Soler v. G & U, Inc., 801 F. Supp. 1056, 1060 Time expended on work deemed

(S.D.N.Y. 1992) (citation omitted).

"excessive, redundant, or otherwise unnecessary" shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, 461

U.S. at 433-34). 1. Case Development a. Work Prior to Filing of Complaint

First, this Court notes that Mr. Beatty requests attorneys' fees for work beginning January 28, 2006. The

Complaint in this case was not filed until June 1, 2007. Mr. Beatty spent a total of 98.7 hours on case development and background investigation before the filing of the Complaint. This included sitting in on Plaintiff's criminal trial all day for six days. While some time for case development and

investigation is necessary before filing a complaint, 98.7 hours is excessive, and some of Mr. Beatty's entries would not be compensable even if his time was not excessive. 27 Specifically,

Mr. Beatty's representation of Plaintiff in connection with the administrative complaint against her was not necessary to the prosecution of the instant case. While the administrative action

was relevant to the instant case and some review of the administrative case would be reasonable, Mr. Beatty could have successfully represented Plaintiff in the instant case without representing Plaintiff in the administrative proceedings. Mr. Beatty's work on his Client Agreement with Plaintiff also is not compensable. While it was certainly necessary to Mr.

Beatty's and Plaintiff's professional relationship, it did not contribute the litigation of Plaintiff's claims. For purposes of

a judicial award of attorney's fees, work on a client agreement should be subsumed in the attorney's overhead. Further, the descriptions of Mr. Beatty's communications with Plaintiff are insufficient. See Local Rule

LR54.3(d)(2) ("time entries for telephone conferences must include an identification of all participants and the reason for the call"). For example, several entries state only [Exh. 10 to Beatty Suppl.

"consultation and email with SB". Decl. at 1.]

Those entries are excluded because there is

insufficient information for this Court to determine whether the amount of time spent was reasonable.14 In most cases, this Court will allow the moving party to submit supplemental documentation in support of inadequately (continued...) 28
14

In light of the foregoing, this Court finds that 20.0 hours is a reasonable amount of time for case development and background investigation prior to the filing of the Complaint. This Court will therefore deduct 78.7 hours from Mr. Beatty's time. b. Work During Litigation

Mr. Beatty also spent 164.7 hours on case development and investigation after filing the Complaint. This includes 98.0 Even

hours preparing for and attending two litigation seminars. though Mr. Beatty may have had the opportunity to discuss

Plaintiff's case with other participants at these seminars, the seminars are essentially professional development or general education for Mr. Beatty and are not compensable in this case. See, e.g., United States ex rel. Averback v. Pastor Med. Assocs., P.C., 224 F. Supp. 2d 342, 353 (D. Mass. 2002); In re "Agent Orange" Prod. Liab. Litig., 611 F. Supp. 1296, 1322 (E.D.N.Y. 1985), aff'd in part and rev'd in part on other grounds, 818 F.2d 226 (2d Cir. 1987). This Court will therefore deduct 98.0 hours

from Mr. Beatty's time. Mr. Beatty claims 10.0 hours associated with

(...continued) described items. The Court will not grant Plaintiff leave to submit supplemental documentation in support of Mr. Beatty's inadequately described time entries because this Court finds that his requested time is excessive, even without the inadequately described entries. 29

14

Plaintiff's appearance before the Administrative Review Board ("ARB"). For the reasons stated supra Section II.B.1.a., only

some review of the ARB proceedings was necessary for the instant case. This Court will therefore deduct 7.0 hours from

Mr. Beatty's time. Mr. Beatty claims 11.0 hours relating to the complaint that Plaintiff filed against him with the Office of Disciplinary Counsel and preparing a restraining order. These matters are

attributable to the problems between Plaintiff and Mr. Beatty. They are not related to the litigation of Plaintiff's claims and are therefore not compensable. hours from Mr. Beatty's time. The Court will also deduct 7.7 from Mr. Beatty's time for inadequately described communications with Plaintiff and opposing counsel. These deductions to Mr. Beatty's case development and investigation after the filing of the Complaint total 123.7 hours, leaving 41.0 hours. This Court has reviewed all of the This Court will deduct the 11.0

remaining time entries and finds that 41.0 hours is excessive. This Court will therefore deduct an additional 10.0 hours from Mr. Beatty's time. 2. Pleadings

Mr. Beatty spent 134.5 hours on pleadings, almost exclusively on the original Complaint. 30 First, the Court notes

that clerical or ministerial costs are part of an attorney's overhead and are reflected in the charged hourly rate. See,

e.g., Sheffer v. Experian Info. Solutions, Inc., 290 F. Supp. 2d 538, 549 (E.D. Pa. 2003). Mr. Beatty billed time for printing

the Complaint, driving to the courthouse to check for form, turning the Complaint in at a copying center, and filing the Complaint. These tasks are clerical or ministerial and are not This Court will therefore deduct 4.0 hours from

compensable.

Mr. Beatty's time. Further, even though the Complaint was lengthy and involved a large number of defendants and claims, the time Mr. Beatty spent on the Complaint was excessive. This Court

finds that 50.0 hours is a reasonable amount of time for the Complaint and First Amended Complaint. The Court will therefore

deduct an additional 80.5 hours from Mr. Beatty's time. 3. Discovery Of

Mr. Beatty claims 29.2 hours for written discovery. that time, 10.7 hours should have been attributable to case development and investigation instead of discovery. This Court

has already determined Mr. Beatty's case development and investigation time to be unreasonable. The Court therefore finds

that the 10.7 hours which counsel mis-categorized as discovery work is not compensable, and this Court will deduct those hours from Mr. Beatty's time. The Court finds that the remaining 18.5 31

hours spent on written discovery was reasonable. Mr. Beatty claims 114.8 hours for depositions and a discovery dispute. First, the Court will deduct 0.6 hours from

Mr. Beatty's time for the filing of notices of depositions. Filing is a non-compensable clerical task. The Court will also

deduct 1.0 hour for the entry stating "discuss Nishimura depo". [Exh. 10 to Beatty Suppl. Decl. at 4.] This entry is

insufficient because it does not state who Mr. Beatty discussed the deposition with. The City submitted a chart comparing the length of each deposition that Mr. Beatty took with the amount of time he spent attending and preparing for them. of Counsel.] [Mem. in Opp., Exh. A to Decl.

Mr. Beatty billed 103.0 hours for the ten

depositions he took, but these depositions only lasted a total of 23.5 hours. Thus, 79.5 hours is attributable to preparation.

The Court finds this to be excessive and will therefore deduct 39.5 hours from Mr. Beatty's time. 4. Motions Practice

Mr. Beatty spent 226.5 hours on motions practice.15 First, Mr. Beatty claims 15.5 hours for work done prior to the filing of the Complaint, which should have been categorized as case development and investigation.
15

Most of this time was spent

The Court notes that the actual total was higher, but Mr. Beatty deducted 63.0 hours for work attributable to claims against the HGEA Defendants. 32

working a motion to obtain a restraining order to stop Plaintiff's criminal trial. For the reasons stated, supra

Section II.B.1.a., work on the Client Agreement is not compensable and Mr. Beatty's representation of Plaintiff in proceedings other than the instant case was not necessary to the litigation of her claims. While some review of the motion for a

restraining order may have been relevant to the instant case, this Court has already found that Mr. Beatty's time for case development and investigation was excessive. Thus, even if

counsel had properly characterized this time as case development, the Court would still find that the 15.5 hours is not compensable. This Court will therefore deduct the 15.5 hours

from Mr. Beatty's time. The Court will also deduct the 2.0 hours Mr. Beatty spent printing and collating the "MSJ and CSF answer" and the 6.0 hours Mr. Beatty spent sending the motions in limine to Mr. Sherman because these are clerical tasks. Mr. Beatty spent 9.5 hours on work relating to his motion to withdraw as Plaintiff's counsel. This arose from the

problems between Plaintiff and Mr. Beatty and was not necessary to the litigation of Plaintiff's claims. The Court will

therefore deduct the 9.5 hours from Mr. Beatty's time. Mr. Beatty also has two entries for "email to BS, SB" and another entry for "write and call Sherman". 33 These entries

are insufficient because Mr. Beatty did not state the subject of these communications. This Court will therefore deduct 2.0 hours

from Mr. Beatty's time. After these specific deductions, there are 191.5 hours remaining. Although there was extensive motions practice in this

case, the Court finds that this is an excessive amount of time. This Court will therefore deduct an additional 50.0 hours from Mr. Beatty's time. 5. Court Proceedings

Mr. Beatty claims 24.5 hours for the preparation for and participation in two settlement conferences, the preparation of Plaintiff's Pretrial Statement, and his attendance at the October 7, 2008 pretrial conference. The Court notes that the

pretrial conference was scheduled for 9:00 a.m., started at 9:07 a.m., and took five minutes. hours for the conference. Mr. Beatty, however, claimed 1.5

If he included his travel time to and This Court The

from the courthouse, such time is not compensable.

will therefore deduct 1.0 hour for the pretrial conference. Court finds that the remainder of Mr. Beatty's time is reasonable. 6. Trial

Mr. Beatty claims 258.5 hours for trial preparation. First, this Court notes that Mr. Beatty billed 7.5 hours on October 16, 2009, and a portion of his 13.0 hours on October 15, 34

2009, waiting for the jury to return its verdict.

Mr. Beatty

argues that this time is compensable because the district judge required him to be within fifteen minutes from the courthouse. This prevented him from returning to his office to do other work. This is unreasonable. Mr. Beatty could have made other

arrangements, such as bringing other work from his office with him or going to the district court or Hawai`I Supreme Court law library, on those days. This Court will therefore deduct 4.0

hours for October 15 and the 7.5 hours on October 16 from Mr. Beatty's time. This leaves 247.0 attributable to trial preparation and the trial itself. While this Court acknowledges the tremendous

amount of work involved in a trial, 247.0 hours is excessive. This Court will therefore deduct 47.0 hours from Mr. Beatty's time. 7. Post-Trial Motions

Mr. Beatty claims a total of 75.5 hours for post-trial motions. This includes 52.0 hours for documents relating to the The Court finds the 52.0 hours to be excessive The remaining

instant Motion.

and will reduce Mr. Beatty's time by 20.0 hours.

time, which Mr. Beatty spent on the City's Rule 59 Motion and Plaintiff's Bill of Costs is reasonable. 8. Summary of Mr. Beatty's Hours

The Court FINDS that 513.2 hours of Mr. Beatty's time 35

is not compensable, but the remainder of Mr. Beatty's time, 613.7 hours, was reasonable for this case. 9. Bruce Sherman's Time

Mr. Sherman spent 21.7 hours doing various tasks to assist Mr. Beatty with motions practice during July 2008, and 4.5 hours on motions in limine on October 31 and November 3, 2008. The Court FINDS that Mr. Sherman's time is manifestly reasonable. This, however, is not the end of the Court's inquiry. The Court must also determine whether a reduction to the lodestar amount is appropriate in light of Plaintiff's limited success in the action. C. Reduction for Limited Success Where a plaintiff achieves only partial or limited success, "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." 461 U.S. 424, 436-37 (1983). Hensley v. Eckerhart,

Based on Hensley, the Ninth Circuit

has adopted a two-part analysis to address attorneys' fees in cases where the plaintiff prevails on some claims but not others. First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff's successful claims. If unrelated, the final fee award may not include time expended on the unsuccessful claims. If the unsuccessful and successful claims are related, then the court must apply the second part of the analysis, in which the court evaluates the "significance of the overall relief obtained by the plaintiff in relation to the hours reasonably 36

expended on the litigation." If the plaintiff obtained "excellent results," full compensation may be appropriate, but if only "partial or limited success" was obtained, full compensation may be excessive. Such decisions are within the district court's discretion. Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 901-02 (9th Cir. 1995) (quoting Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986) (quoting Hensley, 461 U.S. at 435, 103 S. Ct. at 1940)); see also McCown v. City of Fontana, 565 F.3d 1097, 1103-05 (9th Cir. 2009). Title VII cases. Courts apply this analysis in

See, e.g., Odima v. Westin Tucson Hotel, 53

F.3d 1484, 1499 (9th Cir. 1995). 1. Related Claims

Unrelated claims are "distinctly different claims for relief that are based on different facts and legal theories", whereas related claims "involve a common core of facts or [are] based on related legal theories." Hensley, 461 U.S. at 434-35.

In the instant case, the majority of Plaintiff's claims arise from her employment with HPD and the retaliation she suffered because of her sexual harassment action. Only Plaintiff's claims

against the HGEA Defendants and the IHS Defendants were wholly distinct. Mr. Beatty has already deducted his time which is

attributable to the claims against the HGEA Defendants, and it does not appear that he billed any work specifically attributable to the claims against the IHS Defendants. This Court therefore

finds that the claims at issue in the instant Motion are related. 37

2.

Significance of Overall Relief

The jury found in Plaintiff's favor on her Title VII claim against the City and awarded her $150,000.00 in damages. This is certainly a significant victory, but when compared to the number of claims Plaintiff originally alleged and the value of those claims that her counsel asserted on her behalf during settlement negotiations, her success must be deemed partial at best. Where a plaintiff achieves only partial success "full Schwarz, 73 F.3d at 902 This Court has already

compensation may be excessive."

(emphasis added) (citation omitted).

applied substantial reductions to Mr. Beatty's requested hourly rate and his hours. This Court therefore finds, in the exercise

of its sound discretion, that a further reduction for partial success is not necessary. D. Block Billing The Court notes that Mr. Beatty's daily time entries are block billed. "The term `block billing' refers to the

time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Robinson v. City

of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (citations and quotation marks omitted). The Court cautions Mr. Beatty

that, if he submits requests for attorneys' fees in other cases, he should not submit time records employing block billing. 38 If he

does, this Court may impose a percentage reduction of all entries to account for the fact that block billing prevents the Court from reviewing the reasonableness of the amount of time spent on each task. E. Total Lodestar Award Based on the foregoing, this Court FINDS that Plaintiff has established the appropriateness of an award of attorney's fees as follows: ATTORNEY Mark Beatty Bruce Sherman Bruce Sherman HOURS 613.7 21.7 4.5 RATE $140 $100 $125 Subtotal State Excise Tax of 4.712% TOTAL LODESTAR LODESTAR $85,918.00 $ 2,170.00 $ 562.50

$88,650.50 $ 4,177.21 $92,827.71

The Court declines to adjust the award based on the remaining Kerr factors. For all the voluminous pleadings and numerous

parties, the instant case was essentially a retaliation case, which could have been far less complicated than it was. Further,

while the case was time consuming, it did not preclude counsel from handling other cases. Finally, while the ruling was

certainly important to Plaintiff, and the general issue of discrimination in the workplace is of public importance, the instant case did not result in any public change. 39 This Court

therefore finds that no adjustment to the lodestar amount is warranted. III. Entitlement to Non-taxable Costs As the prevailing party, Plaintiff is entitled to her reasonable expenses pursuant to 42 U.S.C. § 2000e-5(k). The only

expenses that Plaintiff seeks are Mr. Beatty's expenses for the two litigation seminars he attended. For the reasons stated

supra in Section II.B.1.b., the expenses for those seminars are not compensable in this case. This Court therefore RECOMMENDS

that the district judge DENY Plaintiff's Motion with respect to her request for non-taxable costs. IV. Taxable Costs Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that, "[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party." P. 54(d)(1). Fed. R. Civ.

A district court may exercise discretion in

allowing or disallowing reimbursement of the costs of litigation, but it may not tax costs beyond those enumerated in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 441-42 (1987), superseded on other grounds, 42 U.S.C. § 1988(c). "Courts, however, are free to construe the meaning and scope of the items enumerated as taxable costs in § 1920." 40

Frederick v. City of Portland, 162 F.R.D. 139, 142 (D. Or. 1995) (citing Alflex Corp. v. Underwriters Lab., Inc., 914 F.2d 175, 177 (9th Cir. 1990) (per curiam)). following costs: (1) (2) (3) (4) Fees of the clerk and marshal; Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; Fees and disbursements for printing and witnesses; Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; Docket fees under section 1923 of this title; Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. Section 1920 enumerates the

(5) (6)

28 U.S.C. § 1920. Plaintiff's Bill of Costs seeks $13,342.10 in taxable costs consisting of the following: Fees Fees Fees Fees for service of summonses and subpoenas of the court reporter for exemplification and copies of the Clerk TOTAL $ 1,316.05 $10,155.30 $ 1,490.25 $ 380.50 $13,342.1016

[Mem. in Supp. of Bill of Costs at 2-5.] A. Timeliness of Bill of Costs The City's first objection is that Plaintiff waived any

There were some errors in the calculation of Plaintiff's service costs. This Court has adjusted Plaintiff's request accordingly. 41

16

right to taxable costs because she did not file her Bill of Costs within fourteen days of the district judge's denial of the City's Rule 59 Motion, as required by the current version of Local Rule 54.2(b). The district judge filed the order denying the City's Plaintiff filed her Bill of

Rule 59 Motion on November 25, 2009. Costs on December 15, 2009.

She asserts that she timely filed it [Bill of Costs at

within "the 30 day time limit of LR 54.2(b)". 1.]

The current version of Local Rule 54.2(b), which took effect on December 1, 2009, states, in pertinent part: Unless otherwise ordered by the court, a Bill of Costs shall be filed and served within fourteen (14) days of the entry of judgment, the entry of an order denying a motion filed under Fed. R. Civ. P. 50(b), 52(b), or 59 . . . . Non-compliance with this time limit shall be deemed a waiver of costs. The version of Local Rule 54.2(b) effective until November 30, 2009 contained a thirty-day filing period. Local Rule 1.2 states

that the current version of the rules "govern all actions and proceedings pending on or commenced after December 1, 2009. When

justice requires, a judge may order that an action or proceeding pending before the court prior to that date be governed by the prior practice of the court." Pursuant to Local Rule 1.2, the current version of Local Rule 54.2(b) applies in this case. Plaintiff should have

filed her Bill of Costs within fourteen days after the district 42

judge denied the City's Rule 59 Motion.

It is not clear whether

Plaintiff was aware of the amendment to Local Rule 54.2(b) because she did not address it in her Bill of Costs. Although

ignorance of the law is not a defense, this Court notes that a reasonable argument can be made for the application of the prior version of Local Rule 54.2(b). The district judge denied the

City's Rule 59 Motion on November 25, 2009, when the prior version of Local Rule 54.2(b) was in effect, and that order arguably triggered the thirty-day filing period. Further, the

City has not alleged that it was prejudiced by Plaintiff's failure to file the Bill of Costs within the fourteen-day period. This Court therefore FINDS that justice requires the application of the thirty-day filing period in the version of Local Rule 54.2 effective until November 30, 2009. The Court RECOMMENDS that the

district judge DENY the City's Objections as to the timeliness of the Bill of Costs. B. Verification A bill of costs "must be supported by a memorandum setting forth the grounds and authorities supporting the request and an affidavit that the costs claimed are correctly stated, were necessarily incurred, and are allowable by law." LR54.2(c). Local Rule

The City objects to Plaintiff's Bill of Costs on the

grounds that Plaintiff's counsel did not include proper verification that the requested costs were necessarily incurred. 43

Mr. Beatty states that he attempted to exclude Plaintiff's "costs related to defendants unrelated to the final trial." [Mem. in Supp. of Bill of Costs, Decl. of Mark Beatty Thus, he asserts that the claimed As to his service and subpoena

("Beatty BOC Decl.") at ¶ 3.]

costs were related to the trial.

costs, Mr. Beatty acknowledges that most of the individual defendants, in their individual capacities, were dismissed before trial. Mr. Beatty, however, asserts that each of these

defendants, in their official capacities, "was useful in securing the final judgment." [Id. at ¶ 5.] As to the costs associated

with the ten depositions that Plaintiff took and the City's deposition of Plaintiff, Mr. Beatty states that many of the deponents were called as Plaintiff's witnesses at trial and the other deponents were listed as potential defense witnesses. He

asserts that the depositions of potential defense witnesses were necessary to prepare for possible cross-examination. 6.] [Id. at ¶

As to Plaintiff's copying costs, Mr. Beatty states that the

copies were for the two required courtesy copies for the court and one copy for his use. [Id. at ¶ 7.] Finally, Mr. Beatty

asserts that filing the Complaint and obtaining the jury cards "were needed as essential elements of the litigation process." [Id. at ¶ 8.] Although at times inartfully stated, Mr. Beatty's declaration provided the required verification that the costs 44

requested in the Bill of Costs were necessarily incurred in the case. This Court therefore RECOMMENDS that the district judge

DENY the City's Objections as to the lack of verification. C. Partial Success As stated supra in Section I., Plaintiff is the prevailing party as to her Title VII claim against the City, but she is not the prevailing party as to any of the defendants besides the City, nor is she the prevailing party as to any of the other claims against the City besides the Title VII claim. The Court, however, finds that it is not necessary to apportion Plaintiff's request for taxable costs among these claims because there is no rule requiring courts to apportion taxable costs based on the relative success of the parties. See Kemin Foods,

L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1348 (Fed. Cir. 2006). "In fact, apportioning costs

according to the relative success of parties is appropriate only under limited circumstances, such as when the costs incurred are greatly disproportionate to the relief obtained." Id. (citing 10

James Wm. Moore et al., Moore's Federal Practice § 54.101[1][b] (3d ed. 2006)). Further, Mr. Beatty attempted to exclude costs

associated with defendants and claims which were unrelated to the claims which went to trial. Where possible this Court will

exclude requested costs that are attributable to claims that Plaintiff did not prevail on. 45

D.

Fees for Service of Summonses and Subpoenas "Fees for the service of process and service of

subpoenas by someone other than the marshal are allowable, to the extent they are reasonably required and actually incurred." Local Rule LR54.2(f)(1); see also § 1920(1). Plaintiff seeks a

total of $1,316.05 in fees for the service of the Complaint and summonses and the service of subpoenas. consists of the following: Service of subpoenas on Alicia Kamahele, William Goodhue, Chris Van Marter, Kanthi De Alwis, Glen Kajiyama (plus $6.05 mileage charge), Carlton Nishimura, Kevin Lima, Owen Harada, Boisse Correa, and Paul Putzulu17 Subpoenas to Nishimura, Correa, Lima, Kajiyama, Kamahele, De Alwis, Goodhue, Harada, Van Marter and Paul Putzulu ($50.00 each) Service of Complaint and Summons and filing of the return of service for Kajiyama, Nishimura, and Correa18 Service of Complaint and Summons and filing of the return of service for Van Marter (includes mileage for three attempts) Service of Complaint and Summons and filing of the return of service for Harada (includes mileage for two attempts) Service of Complaint and Summons and filing of
17

Plaintiff's request

$

256.05

$ $ $ $ $

500.00 90.00 45.00 40.00 130.00

The fee for the service of each subpoena was $25.00. [Exh. 13 to Beatty BOC Decl.] Based upon the dates given in the invoice, these appear to be for trial. The service fee was $25.00 each and the fee for filing the return of service was $5.00 each. The invoice includes service on Maunakea and IHS, but Plaintiff does not seek taxation of those costs. [Exh. 14 to Beatty BOC Decl.; Mem. in Supp. of Bill of Costs at 2.] The Bill of Costs states that Plaintiff seeks $115.00 for the service to Kajiyama, Correa, and Nishimura, but the invoice indicates that only $90.00 is attributable to those people. 46
18

the ret