De-Occupy Honolulu et al v. City and County of Honolulu et al
ORDER ADOPTING (1) FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND NON-TAXABLE EXPENSES; ORDER DIRECTING SUBMISSION OF TIMESHEETS, DOC. NO. 221; AND (2) SUPPLEMENTAL FINDINGS AND RECO MMENDATION REGARDING AMOUNT OF FEE AWARD, DOC. NO. 226 re 205 , 221 , 226 - Signed by JUDGE J. MICHAEL SEABRIGHT on 3/9/2015. "In sum, the court OVERRULES the parties' objections and ADOPTS the (1) Findings an d Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Attorneys' Fees and Non-taxable Expenses; Order Directing Resubmission of Timesheets, Doc. No. 221; and (2) Supplemental Findings and Recommendation Regarding Amount of Fee Award, Doc. No. 226. Plaintiffs are awarded $594.33 in costs, and a total of $79,093.45 ($72,176.18 + $6,917.27) in fees." (emt, )CERTIFICATE OF SERVICEParticipants regis tered 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
DE-OCCUPY HONOLULU; ET AL.;
CITY AND COUNTY OF
HONOLULU; ET AL.,
CIVIL NO. 12-00668 JMS-KSC
ORDER ADOPTING (1) FINDINGS
AND RECOMMENDATION TO
GRANT IN PART AND DENY IN
PART PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES AND NONTAXABLE EXPENSES; ORDER
DIRECTING RESUBMISSION OF
TIMESHEETS, DOC. NO. 221; AND
(2) SUPPLEMENTAL FINDINGS
REGARDING AMOUNT OF FEE
AWARD, DOC. NO. 226
ORDER ADOPTING (1) FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES AND NON-TAXABLE EXPENSES; ORDER
DIRECTING RESUBMISSION OF TIMESHEETS, DOC. NO. 221; AND
(2) SUPPLEMENTAL FINDINGS AND RECOMMENDATION
REGARDING AMOUNT OF FEE AWARD, DOC. NO. 226
This is the third action over the last year-and-a-half in which this
court is tasked with determining reasonable fees for attorneys Richard Holcomb
and Brian Brazier in civil rights litigation against the City and County of Honolulu
(the “City”). The court has already addressed in these previous cases several
issues directly bearing on this case, including the legal framework for determining
prevailing party status, Holcomb’s and Brazier’s reasonable hourly rate, and the
appropriateness of reductions to the hours requested to reach a reasonable fee
Both parties largely ignore these previous determinations in objecting
to Magistrate Judge Kevin S.C. Chang’s recommendation that Plaintiffs be
afforded prevailing party status and that the requested fees of $220,101.22 be
reduced to $72,176.18. See Doc. No. 221, Oct. 31, 2014 Findings and
Recommendation to Grant in Part and Deny in Part Plaintiffs’ Motion for
Attorneys’ Fees and Non-Taxable Expenses; Order Directing Resubmission of
Timesheets (“F&R”); Doc. No. 226, Feb. 3, 2015 Supplemental Findings and
Recommendation Regarding Amount of Fee Award (“Supplemental F&R”).
Based upon a de novo review, the court finds that Plaintiffs are the prevailing
parties and that Plaintiffs are entitled to attorneys’ fees in the amount of
$72,176.18 as determined by Magistrate Judge Chang, plus additional fees for
their time on the Objections.
Plaintiffs De-Occupy Honolulu, Catherine Russell, Christopher
Smith, Andrew Smith, Madori Rumpungworn, and Dominic James (“Plaintiffs”)
were part of the “Occupy” movement that took place throughout various cities. At
the time of this action, Plaintiffs had maintained a constant presence at Honolulu’s
Thomas Square for over a year, where they erected tents, signs, and other artwork.
Defendants the City and Westley Chun, Trish Morikawa, Larry Santos, and Ken
Shimizu (collectively, “Defendants”) conducted, participated in, and/or oversaw
several impoundments of Plaintiffs’ property at Thomas Square. These
impoundments were conducted pursuant to Chapter 29, Articles 18 and 19 of the
Revised Ordinances of Honolulu (“ROH”) (“Articles 18 and 19”), which outline
that the City may seize personal property left on public property after providing
twenty-four hours notice.
On December 12, 2012, Plaintiffs filed this action, asserting that
Articles 18 and 19 violate the First, Fourth, Fifth, and Fourteenth Amendments
and the Hawaii Constitution both facially and as applied to Plaintiffs, and
asserting related state laws. Doc. No. 1. The Complaint alleged several instances
in which Defendants seized property without providing the required twenty-four
hours notice, destroyed property without impounding it, and/or provided no
opportunity for a post-deprivation hearing. Plaintiffs sought injunctive and
declaratory relief, and monetary damages.
Plaintiffs’ Motion for Temporary Restraining Order, Motion for
Sanctions, and First Motion for Preliminary Injunctive Relief
Along with their December 12, 2012 Complaint, Plaintiffs filed
Motions for Temporary Restraining Order (“TRO Motion”) and for Preliminary
Injunction (“PI Motion”). Doc. Nos. 4, 5. On December 17, 2012, the court held
a status conference regarding these Motions in which the parties agreed to enter a
stipulation pending briefing and hearing on the PI Motion, which would obviate
the need to proceed on the TRO Motion. Doc. No. 15. The court also questioned
the basis of Plaintiffs’ PI Motion, given that the success-on-the-merits argument
did not make a clear facial attack on Article 19, despite counsels’ assertions that
they were proceeding on both a facial and as-applied challenge. Although the
court gave Plaintiffs the opportunity to file a new PI Motion, see Doc. No. 17
(granting Plaintiffs the opportunity to file a new PI Motion “to incorporate
additional arguments”), Plaintiffs declined to do so.
On December 19, 2012, the parties entered into a “Stipulation Re:
Motion for Temporary Restraining Order” (“Stipulation”), agreeing that pending a
hearing on the PI Motion, Defendants would comply with Article 19 and take
other safeguards when impounding and holding items taken from Thomas Square.
Doc. No. 18. The Stipulation required, among other things, that impounded
property be placed in numbered bins, that the notice left at the place of
impoundment describe the property and identify the bin number in which the
property was stored, and that impounded property be returned “immediately” when
a person produces the impoundment notification and attests to ownership of the
property. The parties further agreed that Plaintiffs could file a Motion for
Enforcement of the Stipulation if they believed that Defendant breached the
On December 20, 2012, one day after the Stipulation, Defendants
impounded property at Thomas Square, which resulted in Plaintiffs filing a
December 21, 2012 Motion for Sanctions asserting six different breaches of the
Stipulation. Doc. No. 19. One of the breaches alleged was that Defendants failed
to record the bin number on a notice of impoundment, and Plaintiffs attached as an
exhibit a photocopy of a crumpled and/or ripped notice without a bin number. See
Doc. No. 19-1. After Defendants produced a copy of the notice with the bin
number written on the top left-hand corner, see Doc. No. 30-28, Plaintiffs accused
Defendants of fabricating evidence. See Doc. No. 33, at 10 (“[I]f anyone is guilty
of ‘fabricating evidence,’ it is the City.”). It was not until the court directed the
parties to make available for inspection the original notice that Holcomb admitted
that the notice included the bin number, provided a flimsy excuse for his
oversight, and withdrew his objection to the lack of a bin notice. See Doc. No. 88,
After holding an evidentiary hearing, the court issued a January 24,
2013 Order determining that Plaintiffs carried their burden as to only one alleged
violation -- that the City refused to return impounded property “immediately.”
Doc. No. 48. The court’s January 24, 2013 Order provided:
As to Plaintiffs’ complaint that the City breached the
Stipulation by refusing to return impounded property
“immediately,” although the court finds that the term
“immediately” may be ambiguous in some
circumstances, the court is able to conclude that the City
did not comply with this provision. Accordingly, the
City and Plaintiffs shall meet and confer to work out a
reasonable procedure by which the City will process
requests for appointments to repossess impounded
property to owners. Further, the City must train its
personnel in the implementation of such a procedure
given the apparent lack of knowledge of the terms of the
Stipulation regarding the return of the seized property.
The parties shall provide the court with a status letter by
January 28, 2013 regarding the negotiations on this
point. Thus, the court GRANTS the Motion on this
Id. at 3-4.1 As a result of this meet-and-confer process, the City adopted a policy
in which it (1) set up a dedicated telephone number for all Article 19 related phone
Plaintiffs sought reconsideration of the January 24, 2013 Order, seeking to present
evidence they failed to present at the evidentiary hearing. Doc. No. 51. The court denied this
Motion given that none of this evidence was newly discovered. Doc. No. 52.
calls, which would be answered by a live person during regular business hours and
which would take recorded voice mail messages after regular hours; and (2) would
allow repossession of impounded personal property within one business day after
contacting the City, or within two days if contact was made after 2:30 p.m. Doc.
Plaintiffs’ Superseding PI Motion and Defendants’ Motion to
Focusing back on the PI Motion, Plaintiffs asserted during a February
5, 2013 status conference that their Motion argued likelihood of success on the
merits based on both a facial and as-applied challenge to Article 19. Because
Plaintiffs’ PI Motion did not articulate clearly a facial challenge (as to the court
had previously informed Plaintiffs), the court directed Plaintiffs to file a new
Motion for Preliminary Injunction to make such argument. Doc. No. 72, Feb. 5,
2013 Status Conf. Tr. at 12 (the court explaining that supplemental briefing was
necessary because “given how little was in your initial filing, I just didn’t know if
it was fair to the city because they maybe didn’t know quite how to respond at this
point in time”).
On February 8, 2013, Plaintiffs filed a “Superseding Motion” for PI,
which argued that Article 19 is facially unconstitutional, and simply incorporated
by reference Plaintiffs’ previous arguments in their original PI Motion. Doc. No.
56. Defendants also filed a Motion to Dismiss, to be heard on the same day as the
PI Motion. Doc. No. 57.
After both Motions were fully briefed, Plaintiffs filed an Amended
Complaint, which not only added additional allegations occurring after the filing
of the Complaint, but also clarified allegations in the Complaint and added new
parties and claims. Doc. No. 67; see also Doc. No. 71 (Plaintiffs’ statement
explaining differences in pleadings). In light of the Amended Complaint’s new
allegations, the court vacated the pending Motions. The court explained that
going forward with the hearing on only the PI Motion would result in piecemeal
litigation. Further, both Plaintiffs’ Amended Complaint and Superseding PI
Motion improperly incorporated by reference matters in the original Complaint
and Plaintiffs’ other filings, which resulted in a mess of claims, evidence, and
arguments distributed throughout the docket through which the court would not
hunt to determine the scope and basis of Plaintiffs’ arguments and claims. See
Doc. No. 73; Doc. No. 87, Mar. 8, 2013 Tr. at 5-6. The court therefore granted
Plaintiffs leave to file a Second Amended Complaint that did not improperly
incorporate by reference documents and facts in previous filings, and set deadlines
for the parties to file a Motion to Dismiss and PI Motion.
Plaintiffs’ Second Amended Complaint and Related Motions Leading to
Plaintiffs’ Third Amended Complaint
Plaintiffs filed their Second Amended Complaint on March 18, 2013,
Doc. No. 80, and the parties filed their respective Motions to Dismiss and for PI
on April 1, 2013. Doc. Nos. 84, 85. At a May 10, 2013 status conference, the
parties agreed to work together on a stipulation for preliminary injunction
addressing Plaintiffs’ as-applied challenge to Article 19, such that the hearing on
the Motions would focus only on the facial challenge. Doc. No. 119. On May 21,
2014, the court granted in part and denied in part Defendants’ Motion to Dismiss,
Doc. No. 125, and denied Plaintiffs’ PI Motion. Doc. No. 126.
On June 6, 2013, the parties entered into a Stipulation addressing
Plaintiffs’ as-applied challenge to Article 19, which essentially extended the
earlier Stipulation regarding procedures for repossession of stored property until
trial (“Second Stipulation”). Doc. No. 134. The Second Stipulation recited that
(1) Defendants stated that they were not admitting liability and that the Second
Stipulation did not materially change the City’s practices and procedures; (2) the
parties agreed that the Second Stipulation was not a determination on the merits of
the PI Motion; and (3) the court was not making any finding or ruling as to
“prevailing party” status.
Plaintiffs’ Motion for Order to Show Cause; the Parties’ Motions for
On July 24, 2013, Plaintiffs filed their Third Amended Complaint.
Doc. No. 137.
On August 23, 2013, Plaintiffs filed a Second Motion for Order to
Show Cause Why Defendants Should Not be Held in Contempt in light of several
recent impoundments of property at Thomas Park, allegedly in violation of the
Second Stipulation. Doc. No. 150. On August 27, 2013, the court issued an Order
requiring Plaintiffs to further explain the factual basis of their Motion given that
the Second Stipulation applied only to impoundments pursuant to Article 19, and
the impoundments that were the subject of Plaintiffs’ Motion were pursuant to a
new ordinance allowing summary removal of property from public sidewalks.
Doc. No. 151. In response, Plaintiffs withdrew their Motion for Contempt. Doc.
On November 26, 2013, the court approved a stipulation to dismiss
Plaintiff Smith and Defendant Santos with prejudice. Doc. No. 167.
On April 16, 2014, the parties filed Motions for Summary Judgment.
Doc. No. 173, 174. On May 12, 2014, the court struck Plaintiffs’ Motion for
Summary Judgment due to several “glaring problems” with Plaintiffs’ evidence,
including: (1) lack of authentication of any exhibits; (2) “haphazard” presentation
of exhibits, including submitting exhibits not referred to in the Motion;
(3) submitting seven hours of videos with few citations to particular time points;
and (4) submitting a Concise Statement which read more like a factual background
in a brief than a Concise Statement.
Settlement and Motion for Attorneys’ Fees
The parties’ Motions for Summary Judgment did not go forward.
Instead, on May 30, 2014, Magistrate Judge Chang held a settlement on the record
and provided deadlines of June 30, 2014 for the dismissal and July 14, 2014 for
the motion for attorneys’ fees. Doc. No. 196. The parties’ Settlement Agreement,
which required the payment of $1,000 to Plaintiffs, recites that it should not be
construed as any admission and/or inference of fault or wrongdoing by
Defendants, and also provides:
the United States District Court for the District of Hawaii
and/or the United States Court of Appeals for the Ninth
Circuit may consider the fact of settlement, settlement
negotiations, payment and/or receipt of consideration
and other terms of this Agreement to determine
“prevailing party” status for purposes of Paragraph 8
Attorneys’ Fees. [Plaintiffs] and [Defendants]
acknowledge and agree that Plaintiffs may seek
attorneys’ fees and costs pursuant to applicable law and
rules governing the seeking of attorney’s fees and costs.
Pursuant to the rules and applicable law, the City may
dispute both the entitlement to and amount of fees and
costs requested. The court will decide the entitlement to
and amount of fees awarded if any. Either party retains
the right to object to and/or appeal such awards pursuant
to applicable law.
Doc. No. 202-1, ¶¶ 7-8.
Despite the July 14, 2014 deadline to seek attorneys’ fees, Plaintiffs
filed their Motion for Attorneys’ Fees on August 11, 2014. Doc. No. 205. After
Magistrate Judge Chang issued an Order to Show Cause why the Motion for
Attorneys’ Fees should not be denied as untimely, Doc. No. 206, and the parties
proceeded with their briefing on the Motion for Attorneys’ Fees, Doc. Nos. 216,
220, the court deemed the Motion timely. Doc. No. 219.
Magistrate Judge Chang issued his F&R on October 31, 2014, finding
that Plaintiffs are the prevailing parties and entitled to $594.33 in costs, that
Holcomb’s reasonable hourly rate was $200 (not the $355 requested), and that
Brazier’s reasonable hourly rate was $185 (not the $250 requested). The F&R
further directed Plaintiffs to resubmit their time-sheets because they included
numerous non-compensable entries (i.e., clerical work, insufficient descriptions,
block billing, duplicative work, excessiveness, and quarter-hour billing). After
receiving supplemental briefing, Magistrate Judge Chang determined that
Plaintiffs were entitled to $72,176.18 in attorneys’ fees.
On February 17, 2015, the parties filed their Objections, Doc. Nos.
227, 228, and Responses were filed on March 3, 2014. Doc. Nos. 229, 230.
Pursuant to Local Rule 7.2(d), the court determines this matter without a hearing.
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations
de novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d
614, 618 (9th Cir. 1989).
The F&R determined that (1) Plaintiffs are the prevailing party for
purposes of attorneys’ fees; (2) a reasonable hourly rate for Holcomb is $200, and
for Brazier is $185; (3) Plaintiffs are not entitled to their requested 25% increase
in the lodestar calculation; and (4) Plaintiffs are entitled to costs in the amount of
$594.33. Doc. No. 221. The F&R further directed Plaintiffs to resubmit their
timesheets given that the ones submitted included numerous noncompensable
entries, showing a lack of a good faith effort to exclude hours that were excessive,
redundant, unnecessary, or otherwise noncompensable. Upon resubmission of
timesheets, the Supplemental F&R determined that Plaintiffs’ hours requested
should be reduced for redundant, excessive, and clerical work, block billing, and
eighth-of-an-hour billing increments by Brazier, but that no further reductions
were necessary for limited success. Doc. No. 226. In total, the Supplemental
F&R recommends that Plaintiffs be awarded $72,176.182 in attorneys’ fees.
The Supplemental F&R calculated this amount by determining that Holcomb was
entitled to 209.3 hours x $200 hourly rate, which equals $41,860.00, and that Brazier was entitled
to 146.315 hours x $185 hourly rate, which equals $27,068.28. With 4.712% tax ($3,247.90),
the total is $72,176.18.
Both parties object to the F&R and Supplemental F&R. Defendants
challenge Plaintiffs’ entitlement to fees while Plaintiffs object to the reasonable
hourly rate, Magistrate Judge Change’s requirement that Plaintiffs resubmit their
timesheets, and the deductions for duplicative work.3 Based on a de novo review,
the court ADOPTS the F&R and Supplemental F&R, and awards additional fees to
Plaintiffs for time spent on these Objections.
The F&R determined that Plaintiffs were the prevailing party for
purposes of attorneys’ fees pursuant to 42 U.S.C. § 1988 due to the parties’
settlement in which Defendants agreed to pay Plaintiffs $1,000. Defendants
object, arguing that although Defendants paid Plaintiffs $1,000, such payment
does not confer prevailing party status on Plaintiffs because Defendants did not
admit liability and the payment was simply consideration for purposes of the
settlement and not damages. Doc. No. 227, Defs.’ Objs. at 5-6. Defendants
further argue that Plaintiffs should not receive any attorneys’ fees in light of
Plaintiffs’ counsels’ numerous missteps in litigating this action. The court
Neither party objects to Magistrate Judge Chang’s determination of costs, rejection of
Plaintiff’s request for a 25% increase to the lodestar calculation, or deductions for excessive
and/or clerical work, block billing, and eighth-of-an-hour billing increments by Brazier. The
court therefore ADOPTS these determinations.
OVERRULES these objections.
Prevailing Party Status
This court has already addressed the issue of prevailing party status
due to a settlement agreement in James v. City & County of Honolulu, 2015 WL
158895 (D. Haw. Jan. 13, 2015), and its legal analysis applies with equal force
here. As James explains, prevailing party status requires a claimant to establish
two elements -- the party “must achieve a material alteration of the legal
relationship of the parties, and that alteration must be judicially sanctioned.” Id. at
*4 (quoting P.N. v. Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1172 (9th Cir. 2007);
see also Bennett v. Yoshina, 259 F.3d 1097, 1101 (9th Cir. 2001) (quoting
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532
U.S. 598, 604 (2001)).
Relevant to James as well as to this case, the Ninth Circuit has “held
that ‘prevailing party’ status has been obtained and remains in effect when a party
has obtained an enforceable settlement agreement or consent decree.” Balla v.
Idaho, 677 F.3d 910, 917 (9th Cir. 2012). Barrios v. California Interscholastic
Federation, 277 F.3d 1128 (9th Cir. 2002), explains:
“[A] plaintiff ‘prevails’ when actual relief on the merits
of his claim materially alters the legal relationship
between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.”
[Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)]. The
Court explained that “a material alteration of the legal
relationship occurs [when] the plaintiff becomes entitled
to enforce a judgment, consent decree, or settlement
against the defendant.” In these situations, the legal
relationship is altered because the plaintiff can force the
defendant to do something he otherwise would not have
Id. at 1134 (quoting Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir.
2000)). In determining whether a settlement agreement confers a plaintiff
prevailing party status, the court applies “a three-part test, looking at: ‘(1) judicial
enforcement; (2) material alteration of the legal relationship between the parties;
and (3) actual relief on the merits of [the plaintiff’s] claims.’” La Asociacion de
Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir.
2010) (quoting Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement
Dist., 574 F.3d 1054, 1059 (9th Cir. 2009)).
Each of these three elements is met in this case. First, the settlement
agreement is judicially enforceable -- courts have found that a settlement
agreement providing that the court retains jurisdiction over the issue of attorneys’
fees is sufficient to convey “judicial imprimatur” over the settlement.4 The
See Richard S. v. Dep’t of Developmental Servs. of Cal., 317 F.3d 1080, 1088 (9th Cir.
2003) (“Through [the parties’] legally enforceable settlement agreement and the district court’s
Settlement Agreement in this action includes the same language as the settlement
agreement in James, and meets this first requirement by providing that “[t]he court
will decide the entitlement to and amount of fees awarded, if any.” Doc. No. 2021, Pls.’ Ex. 1 ¶ 8.
Second, the Settlement Agreement materially altered the legal
relationship between the parties because it required Defendants to pay Plaintiffs
$1,000 to settle this action. See Jankey v. Poop Deck, 537 F.3d 1122, 1130 (9th
Cir. 2008) (“A settlement agreement meaningfully alters the legal relationship
between parties if it allows one party to require the other party ‘to do something it
otherwise would not be required to do.’” (quoting Fischer, 214 F.3d at 1118)).
Finally, the Settlement Agreement provided Plaintiffs actual relief on
the merits of their claims -- they sought compensatory damages, and ultimately
received $1,000 in this action. See La Asociacion, 624 F.3d at 1090 (“[A] plaintiff
retention of jurisdiction [to resolve the issue of fees and costs], plaintiffs obtained a judicial
imprimatur that alters the legal relationship of the parties”) (internal quotation marks omitted);
Barrios, 277 F.3d at 1134 n.5 (finding that “the parties, in their settlement, agreed that the district
court would retain jurisdiction over the issue of attorneys’ fees, thus providing sufficient judicial
oversight to justify an award of attorneys’ fees and costs”); Justin R. ex rel. Jennifer R. v.
Matayoshi, 561 F. App’x 619, 620 (9th Cir. 2014) (finding that settlement agreement stating that
the district court shall retain jurisdiction to determine the issue of Plaintiffs’ entitlement to
reasonable attorneys’ fees and costs provided sufficient judicial imprimatur); Cf. P.N., 474 F.3d
at 1173 (finding that there was no “judicial imprimatur” of the settlement agreement at issue
where the agreement did not contemplate any judicial enforcement and the matter of attorneys’
fees and costs “was not referred to any court”).
must receive some actual relief that serves the goals of the claim in his or her
complaint.’ While some relief is required, ‘an extremely small amount of relief is
sufficient to confer prevailing party status.’” (quoting St. John’s, 574 F.3d at
In opposition, Defendants argue that the $1,000 was consideration for
the release of Plaintiffs’ claims, not compensatory damages, and Plaintiffs did not
obtain any of the other relief they sought in this action. Defendants’ argument
ignores that regardless of how they characterize their payment to Plaintiffs, the
Settlement Agreement altered the parties’ legal relationship by requiring
Defendants to pay Plaintiffs $1,000. And this payment in fact provided
compensation to Plaintiffs, which they sought in bringing this action. The court
therefore OVERRULES Defendants’ objection to the F&R’s determination that
Plaintiffs are the prevailing parties.
Plaintiffs’ Counsels’ Conduct
Defendants argue that Plaintiffs are not entitled to any fees due to the
numerous missteps they took in litigating this action including, for example,
improperly incorporating arguments and exhibits by reference in their pleadings
and briefs, which required refiling so that the court and Defendants would be able
to determine the precise scope of Plaintiffs’ arguments and claims; filing a Motion
for Sanctions based on an impoundment at Thomas Square carried out pursuant to
an ordinance not at issue in this action; and filing a Motion for Summary
Judgment, which the court struck after Plaintiffs failed to authenticate any of their
evidence. Although the court agrees that Plaintiffs’ counsels’ numerous missteps
in this action show a fundamental lack of experience and/or understanding of
federal litigation, the court rejects that this conduct warrants a complete denial of
As an initial matter, Defendants did not raise this argument before
Magistrate Judge Chang, and Defendants offer no reason why they failed to raise
such argument earlier. Under these circumstances, the court may exercise its
discretion to decline hearing such arguments for the first time. See Brown v. Roe,
279 F.3d 742, 745 (9th Cir. 2002) (providing that the court has discretion in
deciding whether to hear an argument raised for the first time in objection to a
magistrate judge’s F&R); United States v. Howell, 231 F.3d 615, 621 (9th Cir.
Further, even if the court addresses such argument, Defendants cite
no caselaw supporting their argument that the court can simply decline to award
attorneys’ fees to the prevailing party where its counsel makes several bad
litigation decisions. Rather, these missteps are best considered and taken into
account in determining counsels’ reasonable hourly rate and hours reasonably
expended in this action.
Finally, to the extent Defendants’ argument could be construed as
suggesting that counsels’ missteps are “special circumstances” rendering an award
of attorneys’ fees unjust, see Thomas v. City of Tacoma, 410 F.3d 644, 648 (9th
Cir. 2005) (“[A] prevailing plaintiff ‘should ordinarily recover an attorney’s fee
unless special circumstances would render such an award unjust.’” (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)), the facts of this action do not
qualify. “In applying the ‘special circumstances’ exception, [the court] focus[es]
on two factors: ‘(1) whether allowing attorney[s’] fees would further the purposes
of § 1988 and (2) whether the balance of equities favors or disfavors the denial of
fees.’” Id. at 648 (quoting Gilbrook v. City of Westminster, 177 F.3d 839, 878 (9th
Awarding attorneys’ fees in this action furthers the purposes of
§ 1988 given the public benefit this action provided. Specifically, although
Plaintiffs did not obtain permanent injunctive relief, the parties’ Stipulations
required Defendants to train their personnel regarding implementing Article 19,
and created a clear process for return of impounded items. These steps benefitted
the homeless population of Honolulu, a particularly vulnerable group. See, e.g.,
Lavan v. City of Los Angeles, 693 F.3d 1022, 1032 (9th Cir. 2012) (discussing that
the lack of procedure before impoundment by City of Los Angeles “is especially
troubling given the vulnerability of Skid Row’s homeless residents”). As a result,
the equities do not weigh against an award of attorneys’ fees, especially where
counsels’ missteps can be taken into account in determining a reasonable fee
In sum, the court OVERRULES Defendants’ objections to the F&R.
Plaintiffs object to Magistrate Judge Chang’s (1) determination of
counsels’ reasonable hourly rate; (2) requirement that Plaintiffs resubmit their
timesheets after sua sponte finding the initial ones deficient; and (3) deductions for
duplicative time. The court addresses each of these objections in turn.
Reasonable Hourly Rate
The F&R determined that the reasonable hourly rate for Plaintiffs’
counsel was $200 for Holcomb and $185 Brazier, as opposed to the requested
rates of $355 and $250 respectively. The F&R’s awarded rates are the same as
those awarded to Holcomb by this court in Hawaii Defense Foundation v. City &
Cnty. of Honolulu, 2014 WL 2804448, at *5 (D. Haw. June 19, 2014), and James,
2015 WL 438175, at *1. Plaintiffs object to these hourly rates, raising the same
arguments the court has rejected in Hawaii Defense Foundation -- i.e., that (1)
Hawaii attorneys should be compensated at the same rates as comparable attorneys
on the mainland by using the Laffey matrix (a grid of inflation-adjusted hourly
rates for lawyers with varying levels of experience in the Washington, D.C. area);
(2) rates in Hawaii fail to take into account inflation and the high cost of living;
(3) courts in this district place an artificial cap on hourly rates; and (4) the
importance of civil rights litigation establishes that counsel are entitled to the rates
For the same reasons explained in Hawaii Defense Foundation, the
court rejects these arguments once again. As explained in Hawaii Defense
Foundation, a reasonable hourly rate should reflect the “prevailing market rates in
the relevant community,” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th
Cir. 2013), which generally “is the forum in which the district court sits.” Prison
Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010). In determining
the reasonableness of an hourly rate, the experience, skill, and reputation of the
attorney requesting fees are taken into account. Id. at 455; see also Webb v. Ada
Cnty., 285 F.3d 829, 840 & n.6 (9th Cir. 2002). “Importantly, the fee applicant
has the burden of producing ‘satisfactory evidence’ that the rates he requests meet
these standards.” Gonzalez, 729 F.3d at 1206 (citing Dang v. Cross, 422 F.3d 800,
814 (9th Cir. 2005)); see also S.E.C. v. Gemstar-TV Guide Int’l, Inc., 401 F.3d
1031, 1056 n.8 (9th Cir. 2005) (“[I]t is ‘[t]he fee applicant [that] has the burden of
producing satisfactory evidence, in addition to the affidavits of its counsel, that the
requested rates are in line with those prevailing in the community for similar
services of lawyers of reasonably comparable skill and reputation.’” (quoting
Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987))).
As Hawaii Defense Foundation further explains, Plaintiffs’ argument
that they should be compensated according to mainland rates “do[es] not address
the applicable standard for determining a reasonable hourly rate -- i.e., they are not
evidence of the prevailing rates in the District of Hawaii.” 2014 WL 2804448, at
*3 (collecting cases rejecting Laffey matrix). Rather, the relevant inquiry is the
“reasonable hourly rate in this market, based on the hourly rate, the experience,
skill, and reputation of the attorneys requesting the fees.” Id. (emphasis omitted).
And as to the evidence Plaintiffs present regarding the prevailing rates in this
district, Hawaii Defense Foundation already rejected the bulk of it, explaining that
(1) the Pacific Business News article indicating that the City recently paid outside
counsel hourly rates between $295.00 and $495.00 for work in connection with
Honolulu’s $5.2 billion rail transit project is unhelpful where this case is not
nearly as complex, and the article fails to tie the hourly rates discussed to the
particular attorneys charging such rate or provide any information indicating the
experience, skill, and reputation of counsel; (2) the numerous cases in this district
discussing the prevailing hourly rates do not suggest an artificial cap on fees, and
just as easily suggest that attorneys seek higher rates from the court than they may
charge a paying client; and (3) Brazier’s and Holcomb’s declarations outlining
their experience do not suggest that they are entitled to rates of attorneys with
many more years experience than them.
The only new evidence not presented previously in Hawaii Defense
Foundation is the Declaration of attorney Kevin O’Grady, who asserts that
Plaintiffs’ requested hourly rates are reasonable. See Doc. No. 205-5. But cutting
against O’Grady’s assertions of familiarity with counsels’ quality of work is this
court’s own first-hand view of counsels’ experience and skill in litigating this
action. From the very start of this action and up through their motion for
attorneys’ fees, counsel made numerous mistakes which wasted both the parties’
and this court’s time. In particular, counsel (1) presented an incomplete PI Motion
which failed to articulate all of their arguments and which required refiling;
(2) filed an Amended Complaint which improperly incorporated previous
submissions by reference, and which required both parties to refile Motions that
had otherwise been fully briefed and ready for hearing; (3) filed a Motion for
Summary Judgment which the court struck for failure to authenticate evidence;
and (4) filed their Motion for Attorneys’ Fees late, requiring further motions
practice to determine whether they would be allowed to file such motion. These
are glaring mistakes which the court would not expect from even the most junior
of attorneys, and are certainly not the type of mistakes the court would expect (or
that clients would pay for) from attorneys with Holcomb’s and Brazier’s years of
experience, much less from attorneys who actually command the rates counsel
seek in this action.5 Thus, based on the court’s knowledge of this case and
counsels’ experience, the court finds the rates recommended by the F&R are
appropriate in this case. See Haw. Defense Found., 2014 WL 2804448, at *5 &
n.6 (finding helpful and citing to “the numerous cases in this district discussing the
prevailing hourly rates in this district” to determine the reasonable hourly rate for
Holcomb and Brazier).
In finding that Holcomb is entitled to a $200 hourly rate and Brazier a
Also troubling is Plaintiffs’ Motion for Sanctions in which they asserted that
Defendants had not recorded the bin number on the notice of impoundment as required by the
Stipulation. Plaintiffs based this assertion on a crumpled and/or ripped copy of the notice, and
suggested, without ever checking the original, that Defendants fabricated evidence when they
produced a copy of the notice with the bin number. See Doc. No. 33, at 10 (“[I]f anyone is guilty
of ‘fabricating evidence,’ it is the City.”). Plaintiffs withdrew this assertion after the court
required the parties to present the originals and Plaintiffs (finally) properly reviewed the evidence
to realize that the notice in fact contained the bin number. This level of carelessness is simply
not acceptable where counsel alleges misconduct by fellow attorneys.
$185 hourly rate, the court recognizes Plaintiffs’ argument that attorneys’ fees
pursuant to § 1988 are meant to encourage attorneys to bring cases challenging
constitutional violations that may otherwise not be brought. See Doc. No. 228,
Pls.’ Objs. at 26; see also City of Riverside v. Rivera, 477 U.S. 561, 576-77 (1986)
(“Congress enacted § 1988 specifically because it found that the private market for
legal services failed to provide many victims of civil rights violations with
effective access to the judicial process. Moreover, the contingent fee
arrangements that make legal services available to many victims of personal
injuries would often not encourage lawyers to accept civil rights cases, which
frequently involve substantial expenditures of time and effort but produce only
small monetary recoveries.” (citations omitted)). Reasonably compensating
counsel based on the prevailing rates for attorneys with similar experience and
skill in the district, however, fulfills this purpose, and the hourly rates awarded to
Holcomb and Brazier properly reflect their experience and skill in litigating this
action based on the prevailing rates in Hawaii.
The court therefore ADOPTS the F&R’s determination that Holcomb
is entitled to an hourly rate of $200, and that Brazier is entitled to an hourly rate of
Re-submission of Time Sheets
In the F&R, Magistrate Judge Chang declined to determine the hours
reasonably expended by Holcomb and Brazier because the timesheets submitted
included numerous non-compensable entries, which the court would not review on
its own without counsel first conducting a sufficient review and deleting those
entries which, based on Ninth Circuit law, should not be included in the request in
the first place. Doc. No. 221, F&R at 43-44. Plaintiffs object to this procedure,
arguing that Defendants have the burden of objecting to attorneys’ fees and that
this process allowed Defendants to raise objections to hours which they had not
previously raised. Doc. No. 228, Pls.’ Objs. at 26-28.
In making this objection, Plaintiffs demonstrate a grave
misunderstanding of the parties’ burdens. It is not Defendants’ burden to outline
all of the problems with Plaintiffs’ time-sheets. Rather, Plaintiffs, as the
prevailing party, have “the burden of submitting detailed time records justifying
the hours claimed to have been expended.” See In re Wash. Pub. Power Supply
Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994) (citations and quotations
omitted); see also Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (“The fee applicant
(whether a plaintiff or a defendant) must, of course, submit appropriate
documentation to meet ‘the burden of establishing entitlement to an award.’ But
trial courts need not, and indeed should not, become green-eyeshade accountants.”
(citations omitted)); Robinson v. Plourde, 717 F. Supp. 2d 1092, 1098 (D. Haw.
2010) (“[A] prevailing party seeking attorneys’ 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.”).
Further, the court has its own “independent duty to review the
submitted itemized log of hours to determine the reasonableness of hours
requested in each case.” Irwin v. Astrue, 2012 WL 707090, at *1 (D. Or. Mar. 5,
2012) (citing Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001)); Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010) (“It is essential that the judge
provide a reasonably specific explanation for all aspects of a fee determination,
including any award of an enhancement.”). Thus, even when the opposing party
does not object to a motion for attorneys’ fees, the court must independently
review the petition for reasonableness and give a “concise but clear explanation of
its reasons for the fee award.” See Cunningham v. Cnty of Los Angeles, 879 F.2d
481, 484 (9th Cir. 1988) (quoting Hensley, 461 U.S. at 437).
Plaintiffs’ original time sheets, with numerous non-compensable
entries, failed to establish the reasonableness of the hours presented, and
Magistrate Judge Chang acted well within the court’s discretion and fulfilled the
independent duty of determining the reasonableness of Plaintiffs’ fee requests by
requiring Plaintiffs to resubmit their time sheets. The court therefore
OVERRULES Plaintiffs’ Objection to the F&R requiring Plaintiffs to resubmit
their time sheets.
Deductions for Redundancy
Finally, Plaintiffs object to Magistrate Judge Chang’s reductions of
39.05 hours from Brazier’s time for redundancy. Plaintiffs argue that these
deductions are improper to the extent they lack any consideration of the
reasonableness of the time spent, and counsel should not be capped at having only
one attorney participate on any one task. See Doc. No. 228, Pls.’ Objs. at 28-30.
As the court explained in Hawaii Defense Foundation, 2014 WL
2804448, at *7, while the court recognizes that litigation often requires the
participation of multiple attorneys, see Davis v. City & Cnty. of San Francisco,
976 F.2d 1536, 1544 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d
345 (9th Cir. 1993), “overstaffing cases inefficiently is common, and district
courts are therefore encouraged to scrutinize fee petitions for duplicative billing
when multiple lawyers seek fees.” Schlacher v. Law Offices of Phillip J. Rotche &
Assocs., 574 F.3d 852, 858 (7th Cir. 2009); see also Lipsett v. Blanco, 975 F.2d
934, 938 (1st Cir. 1992) (“A trial court should ordinarily greet a claim that several
lawyers were required to perform a single set of tasks with healthy skepticism.”).
Such rule does not prevent two attorneys from working together on
certain tasks that are divisible, or conferencing together to determine strategy.
See, e.g., Garcia v. Resurgent Capital Servs., L.P., 2012 WL 3778852, at *7 (N.D.
Cal. Aug. 30, 2012) (rejecting that hours spent by multiple attorneys conducting
legal research, drafting motions, and preparing for trial was redundant because
“[i]t is not unusual for two attorneys to work together on such activities, especially
when they are working on different components of a brief or working together on
a motion”); Chabner v. United Omaha Life Ins. Co., 1999 WL 33227443 (N.D.
Cal. Oct.12, 1999) (“Common sense dictates that a single task can be broken down
over several discrete time periods and that a number of people might contribute to
one end product.”). Rather, billing is redundant where two attorneys perform a
task that could just as easily be performed by one attorney in less time than the
two attorneys billed together. Thus, as a general rule, the court does not permit
more than one attorney to bill for attending: (1) a meeting between co-counsel;
(2) a client meeting; or (3) a meeting with opposing counsel. See Seven
Signatures Gen. P’ship, 871 F. Supp. 2d at 1055 (internal citations omitted). “In
such a situation, the [c]ourt typically deducts the time spent by the lowest-billing
attorney.” Id. Further, the court permits two attorneys to bill for their appearances
at court proceedings only “when it is reasonable and necessary for a ‘second chair’
to appear with lead counsel.” Sheehan v. Centex Homes, 853 F. Supp. 2d 1031,
1044 (D. Haw. 2011).
Brazier and Holcomb worked on many of the same tasks in this case
which Magistrate Judge Chang did not reduce for redundancy because they are
amenable to division between two attorneys without improper overlap (e.g.,
drafting pleadings and motions). But Brazier and Holcomb also performed
numerous tasks together, which good billing judgment would ordinarily prevent
from being charged doubly to a paying client (or in this case, by the opposing side
due to a fee-shifting statute). These include Holcomb and Brazier both billing for
the same client meetings, preparing for and attending the same depositions, and
attending the same court conferences and hearings. Plaintiffs offer no explanation
as to why any of these events required two attorneys when one would have been
sufficient, and the court sees none either.6
And from the court’s own de novo calculations, the number of
duplicative hours between Brazier and Holcomb for these tasks exceed the 39.05
hours deducted by Magistrate Judge Chang. Given that the court would likely
In opposition, Plaintiffs complain that Defendants often had multiple attorneys attend
hearings and conferences, and that Plaintiffs should likewise should be able to as well. But, as
should be obvious, Defendants’ potential overstaffing practices are not at issue.
deduct even more hours than Magistrate Judge Chang if Defendants had made
such objection (they did not), the court OVERRULES Plaintiffs’ objection to
Magistrate Judge Chang’s deductions to Brazier’s hours for redundancy.
Attorneys’ Fees for Objections
Plaintiffs seek additional fees for the Objections, asserting that
Holcomb spent a total of 5.4 hours and Brazier spent a total of 10.8 hours on their
Objections, and that Holcomb spent a total of 23.3 hours and Brazier spent a total
of 2.2 hours on the Response to Defendants’ Objections. Although the court finds
the hours spent on Plaintiffs’ Response to Defendants’ Objections reasonable, the
court finds that the 16.2 total hours spent on Plaintiffs’ Objections is unreasonable
where Plaintiffs for the most part rehashed arguments that this court has already
rejected. To the extent Plaintiffs raised these Objections simply to maintain their
right of appeal, far fewer hours were necessary. The court therefore reduces the
counsels’ time spent on their Objections by fifty percent, finding that 2.7 hours for
Holcomb and 5.4 hours for Brazier are reasonable. Thus, in total, the court adds
an additional 26 hours for Holcomb and 7.6 hours for Brazier for work on the
instant Objections, for total additional award of $6,917.27.7
The court reaches this amount as follows: (26 hours x $200 hourly rate = $5,200) +
(7.6 hours x $185 hourly rate = $1,406) x 1.04712 for tax = $6,917.27.
In sum, the court OVERRULES the parties’ objections and ADOPTS
the (1) Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs’
Motion for Attorneys’ Fees and Non-taxable Expenses; Order Directing
Resubmission of Timesheets, Doc. No. 221; and (2) Supplemental Findings and
Recommendation Regarding Amount of Fee Award, Doc. No. 226. Plaintiffs are
awarded $594.33 in costs, and a total of $79,093.45 ($72,176.18 + $6,917.27) in
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 9, 2015.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
De-Occupy Honolulu et al. v. City & Cnty. of Honolulu, Civ. No. 12-00668 JMS-KSC, Order
Adopting (1) Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs’ Motion
for Attorneys’ Fees and Non-taxable Expenses; Order Directing Resubmission of Timesheets,
Doc. No. 221; and (2) Supplemental Findings and Recommendation Regarding Amount of Fee
Award, Doc. No. 226
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