Black v. Correa et al

Filing 348

FINDINGS AND RECOMMENDATION THAT INTERVENOR' MOTION FOR ATTORNEY'S FEES AND COSTS BE GRANTED IN PART AND DENIED IN PART re 341 filed by Mark Stanton Beatty. Signed by Judge BARRY M. KURREN on 07/30/2013. (eps)CERTIFICATE 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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SHARON BLACK,

)
)
Plaintiff,
)
)
vs.
)
)
CITY AND COUNTY OF
)
HONOLULU, HONOLULU
)
POLICE DEPARTMENT, et al.
)
)
Defendants.
)
)
_____________________________ )

CV. NO. 07-00299 DAE-BMK
FINDINGS AND
RECOMMENDATION THAT
INTERVENOR’S MOTION FOR
ATTORNEY’S FEES AND COSTS
BE GRANTED IN PART AND
DENIED IN PART

FINDINGS AND RECOMMENDATION THAT
INTERVENOR’S MOTION FOR ATTORNEY’S FEES
AND COSTS BE GRANTED IN PART AND DENIED IN PART
Before the Court is Intervenor Mark S. Beatty’s (“Beatty”) Motion for
Attorney’s fees and Costs (Doc. # 341.) After careful consideration of the motion
and the supporting and opposing memoranda, the Court FINDS and
RECOMMENDS that this motion be GRANTED IN PART and DENIED IN
PART.1 Specifically, the Court concludes that: 1) Beatty is entitled to attorneys’
fees under 42 U.S.C. § 2000e-5(k); 2) a reasonable hourly rate for Beatty is $140;

1

Pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawaii (“Local Rules”), the Court elects to decide this matter
without a hearing.

3) some of Beatty’s time entries are improper because they are too vague, claim
time for clerical work, or claim time for non-compensable activities; and 4) a fortypercent reduction in Beatty’s time is appropriate due to Beatty’s unsuccessful
motions on appeal and the relative simplicity of the issues on appeal. The Court
awards Beatty $24,480 in attorney’s fees and costs.
BACKGROUND
The full background of this case is summarized in the Report of
Special Master on Plaintiff’s Motion for Attorney Fees (Doc. # 298) and the Ninth
Circuit’s memorandum opinion affirming this Court’s judgment and award of
attorney’s fees (Doc. # 336.) Plaintiff Sharon Black (“Plaintiff”) filed an amended
complaint in part alleging employment discrimination against the City and County
of Honolulu (“the City”). (Doc. # 298 at 11.) This claim was submitted to the
jury, and the jury returned a verdict in Plaintiff’s favor. Final judgment was
entered in favor of Plaintiff and against the City with respect to Plaintiff’s Title VII
retaliation claim on October 27, 2009.
Plaintiff filed a motion for attorney’s fees and costs, which was
subsequently granted in part. (Docs. ## 272, 298.) The City appealed the
judgment, and Plaintiff filed a notice of cross appeal. (Docs. ## 286, 291.)
During the trial proceedings, Beatty represented Plaintiff. Early in the
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appeal, Beatty filed a motion to withdraw, which was granted. (Ninth Circuit
Appeal No. 09-17874 [“Ninth Circuit Doc.”], Doc. # 21.) Beatty also filed a
motion to intervene in the appeal, which was granted. (Id.) On May 15, 2012, the
City filed a notice of death of Plaintiff Sharon Black, and no personal
representative came forward to represent her in this matter. (Doc. # 336 at 4 n.1.)
The case proceeded to oral argument, and Beatty and the City’s attorneys attended
oral argument. The Ninth Circuit issued its Memorandum Opinion affirming the
District Court’s Judgment in all respects. (Doc. # 336.) The Ninth Circuit also
rejected Beatty’s argument that the district court abused its discretion by denying
fees for attending litigation seminars, denying time spent because of his fractured
relationship with Plaintiff, and failing to apply a premium lodestar. (Mem. Op. at
7-8.) The cross-appeal was dismissed due to Plaintiff’s death.
Beatty filed this motion for attorney’s fees and costs in the Ninth
Circuit, seeking $50,837.50 for work done on appeal. (Doc. # 341.) The Ninth
Circuit transferred the motion for fees to this Court. (Ninth Cir. Doc. # 133.)
DISCUSSION
The City objects to Beatty’s motion for attorney’s fees on the grounds
that: 1) Beatty is not entitled to attorney’s fees as an intervenor; 2) Beatty is not
entitled to an hourly rate above $140; 3) Beatty had limited success because his
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arguments on appeal were summarily denied; and 4) Beatty is not entitled to fees
for clerical work. (Doc. # 346.)2 As discussed below, the Court awards Beatty
$24,480 in attorney’s fees and costs.
A.

Beatty Is Entitled To Attorney’s Fees Under Title VII.
Title VII provides that in “any action or proceeding under this

subchapter the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee . . . as part of the costs[.]” 42 U.S.C. § 2000e-5(k).
Although Beatty prevailed in defending the District Court’s judgment, the City
asserts that he is not entitled to fees because he is an intervenor rather than the
Plaintiff. (Doc. # 346 at 5.) The City’s reliance on Soliman v. Ebasco Servs. Inc.
is not persuasive. 822 F.2d 320, 322 (2d Cir. 1987). In that case, an attorney
appealed from a fee award without his client’s consent. In dismissing the appeal,
the Court observed that the term “prevailing party” in Title VII refers to a
plaintiff’s entitlement to fees, and that “independent of his client, an attorney has

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The City also argues that Beatty’s motion attempts to apply a new rate to the
district court’s prior determination on fees. (Doc. # 346 at 2.) After reviewing Beatty’s motion,
the Court concludes that Beatty is seeking fees for work done during the appeal.
Beatty argues that the City’s opposition is untimely and should be stricken because it was
filed one day late. (Doc. # 347 at 1-2.) Because the opposition was only filed one day late and
Beatty has not shown he was prejudiced by the City’s late filing, the Court declines to strike the
City’s opposition. See Young v. County of Hawaii, Civ. No. 11-00580 ACK-RLP, 2012 WL
2366016, at *5 (D. Haw. June 19, 2012) (affirming Magistrate Judge’s decision to consider
opposition where it was filed only one day late and Defendant did not demonstrate prejudice).
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no personal right to an award of statutory attorney’s fees under 42 U.S.C. §
2000e-5(k).” Id. Soliman is distinguishable because Beatty has not appealed
without his client’s consent, and was allowed to intervene in the appeal by the
Ninth Circuit. Furthermore, the City concedes that “[p]revailing intervenors can be
entitled to attorney fees where . . . they contribute substantially to the outcome of
the case.” Doc. # 346 at 6 (quoting Bresgal v. Brock, 637 F. Supp. 278, 279 (D.
Or. 1985)). The City argues that Beatty did not contribute substantially to the
outcome of the case, but Beatty essentially defended the jury verdict for Black.
Beatty prepared briefs in opposition to the City’s appeal and argued the case at oral
argument. (Ninth Circuit Doc. # 39.) The Court finds that Beatty is entitled to
attorney’s fees because he substantially contributed to a positive outcome in the
case.
To determine whether a fee award is reasonable, the Court must
scrutinize the reasonableness of “(a) the number of hours expended and (b) the
hourly fee claimed.” Long v. I.R.S., 932 F.2d 1309, 1313-14 (9th Cir. 1991). If
those two figures are reasonable, then “there is a ‘strong presumption’ that their
product, the lodestar figure, represents a reasonable award.” Id. “The court may
authorize an upward or downward adjustment from the lodestar figure if certain
factors relating to the nature and difficulty of the case overcome this strong
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presumption and indicate that such an adjustment is necessary.”3 Id.
B.

A Reasonable Hourly Rate For Beatty Is $140.
In “determining a reasonable hourly rate, the district court should be

guided by the rate prevailing in the community for similar work performed by
attorneys of comparable skill, experience, and reputation.” Webb v. Ada County,
285 F.3d 829, 840 (9th Cir. 2002) (quoting Chalmers v. City of L.A., 796 F.2d
1205, 1210-11 (9th Cir.1986)).
Beatty asserts that he is entitled to an hourly rate of $175. The Court
concludes that $140 is a reasonable hourly rate for Beatty. This Court previously
awarded Beatty an hourly rate of $140 for the trial work in this case, and Beatty
has not shown that he is entitled to a higher hourly rate for the work done on
appeal, which commenced shortly after the Court’s prior fee award. (Doc. # 298 at

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The Ninth Circuit has adopted the following factors to guide the Court’s
evaluation of a fee award:
(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 v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).
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26.) Based on the Court’s knowledge of the prevailing rates in this community, the
Court concludes that $140 is still a reasonable hourly rate for Beatty.4
C.

The Court Imposes a Forty-Percent Reduction On Beatty’s Billing
Entries.
The Court finds that a substantial reduction of Beatty’s fees is

warranted. The City argues that the Court should reduce fees for some of the
communications between Beatty and Plaintiff. The Court agrees. Beatty is not
entitled to fees for his fractured relationship with Plaintiff. One of the entries
includes time for research into death threats Beatty believed Black sent him. (Doc.
# 341, Ex. E at 2.) Beatty also claims time for renegotiating and explaining
Plaintiff’s contract. (Id.) If these entries refer to the fee contract between Plaintiff
and Beatty, they inappropriate because they did not advance Plaintiff’s case; if they
refer to another contract, they are too vague to allow the Court to gauge their
reasonableness. Another entry is “research emailfinding.com, spokeo, public
records online, on Dinglemeister, no person found, thus indication that alias.” (Id.
at 2-3.) The Court finds that this entry is inappropriate because it does not allow

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The City argues that Beatty is not entitled to an increased hourly rate because of
the low quality of his work, but it is unnecessary to address this issue because the Court finds
that the previously awarded hourly rate of $140 is reasonable.
Beatty also argues that he is entitled to a higher rate under the factors announced in Kerr
v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), but as discussed above, the Court
declines to award Beatty a higher rate.
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the Court to gauge its reasonableness. Therefore, the Court deducts 5.75 hours
from Beatty’s requested fees.
The City argues that Beatty wrongly claims time for pro forma work.
(Doc. # 346 at 11.) Beatty claims time for his staff’s printing, tabbing, collating,
and mailing various documents. (Doc. # 341 at 2.) These tasks are not
compensable because they “are part of an attorney’s overhead and are reflected in
the charged hourly rate.” Dep’t of Educ., State of Hawaii v. C.B. ex rel. Donna B.,
Civ. No. 11-00576 SOM-RLP, 2012 WL 7475406, at *10 (D. Haw. Sept. 28,
2012). The Court declines to award time for these entries.
Based on the above, the Court has reduced Beatty’s requested hours to
284.75. The Court further imposes a percentage reduction because of the Ninth
Circuit’s denial of many of Beatty’s motions and the unreasonable amount of time
spent briefing the appeal. For instance, the Ninth Circuit denied Beatty’s motion to
dismiss, his motion for sanctions, and his motion to strike the City’s opening brief.
(Ninth Circuit Docs. ## 25, 34, 37.) The Ninth Circuit also rejected Beatty’s
argument that the District Court improperly calculated his fee award. (Doc. # 336
at 7-8; Ninth Circuit Doc. # 39 at 44-50.) In short, the Court finds that a sizeable
portion of Beatty’s efforts on appeal were unsuccessful, and Beatty is not entitled
to fees for his unsuccessful efforts. See Morgan v. Chicago Title Ins. Co., Civ. No.
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00-00145 BMK, 2008 WL 763759 at *8 (D. Haw. Mar. 20, 2008) (imposing
percentage reduction in light of partial success); C.B. ex rel. Donna B., 2012 WL
7475406, at *12 (“Courts within the Ninth Circuit, including this district, regularly
reduce fee awards in IDEA cases by an across-the-board percentage due to a
party’s limited degree of success.”).
The City also argues that Beatty’s 136 hours for brief writing and 26
hours for preparing oral argument are unreasonable. The Court agrees, because the
appeal of the jury’s verdict and fees issues on appeal were not exceedingly
complex, and 136 hours for brief writing is excessive.
Beatty’s billing entries are not specific enough to allow the Court to
deduct exact amounts of time for his unsuccessful efforts. The City also does not
provide a suggested line-by-line deduction of Beatty’s billing entries for the
deficiencies noted above. Therefore, the Court deems it appropriate to perform an
across the board percentage reduction. After reviewing the record, the Court
concludes that a forty-percent reduction of Beatty’s time is warranted in light of
the numerous unsuccessful motions he filed and the relative simplicity of the issues
on appeal. See Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994) (affirming a
general 50% reduction in the lodestar amount for lack of success).
Based on the foregoing, the Court calculates the adjusted lodestar as
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follows:
Attorney

Reasonable Hours (including
reduction)

* Reasonable Rate =

Adjusted
Lodestar

Mark Beatty

170.85

$140

$23,919

Beatty also sought costs of $561, to which the City did not object.
Therefore, the Court awards Beatty a total of $24,480 in attorney’s fees and costs.
CONCLUSION
For the foregoing reasons, the Court FINDS and RECOMMENDS
that Beatty’s Motion for Attorneys’ Fees and Costs be GRANTED IN PART and
DENIED IN PART.
DATED: Honolulu, Hawaii, July 30, 2013.
IT IS SO FOUND AND RECOMMENDED.

/s/ Barry M. Kurren
United States Magistrate Judge

Black v. City and County of Honolulu, Honolulu Police Dept.; Civ. No. 07-00299 DAE-BMK;
FINDINGS AND RECOMMENDATION THAT INTERVENOR’S MOTION FOR
ATTORNEY’S FEES AND COSTS BE GRANTED IN PART AND DENIED IN PART
10