Roberts v. City and County of Honolulu

Filing 28

ORDER ADOPTING IN PART AND MODIFYING IN PART THE FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS re 12 , 24 , 25 - Signed by JUDGE ALAN C KAY on 6/3/2016. "For the foregoing reasons, the Court ADOPTS in part and MODIFIES in part the Findings and Recommendation to Grant in Part and Deny in Part Plaintiff's Motion for Attorneys' Fees and Costs. The Court awards Plaintiff atto rneys' fees and costs of $21,702.95." (emt, )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
___________________________________
)
ANDREW NAMIKI ROBERTS,
)
)
Plaintiff,
)
)
v.
) Civ. No. 15-00467 ACK-RLP
)
CITY AND COUNTY OF HONOLULU;
)
and JOHN DOES 1-50,
)
)
Defendants.
)
___________________________________)
ORDER ADOPTING IN PART AND MODIFYING IN PART THE FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
For the reasons set forth below, the Court ADOPTS in
part and MODIFIES in part the Findings and Recommendation to
Grant in Part and Deny in Part Plaintiff’s Motion for Attorneys’
Fees and Costs, issued by Magistrate Judge Puglisi on March 24,
2016.

ECF No. 24.
BACKGROUND
On November 6, 2015, Plaintiff Andrew Namiki Roberts

(“Plaintiff”) filed this action pursuant to 42 U.S.C. § 1983
against Defendant City and County of Honolulu (“Defendant”).
Verified Compl. for Deprivation of Civil Rights (“Complaint”),
ECF No. 1.

In his Complaint, Plaintiff alleged that Defendant

violated his Second, Fourth, and Fourteenth Amendment rights by
refusing to issue firearms permits to permanent residents such
as himself, unless these permanent residents obtained clearance
- 1 -

documents from their country of origin or consulate.

Complaint

at 1.
On November 9, 2015, Plaintiff served Defendant with a
copy of the Complaint, along with a demand letter (“November 9
Demand Letter”) indicating Plaintiff’s willingness to settle if
Defendant complied with a list of terms outlined in the letter.
Ex. C to Pl.’s Mot., ECF No. 12-10.1

The letter stated that

Plaintiff intended to file a Motion for Preliminary Injunction
and/or Permanent Injunction if his terms were not met, and that
the demand was good through the close of business on November
13, 2015.

Id. at 2.

Among the terms was a request for

$8,549.60 in attorneys’ fees and costs for time spent on the
case.

Id. at 2, 9.
Defendant failed to respond by the November 13

deadline.

Pl.’s Objs. to R. & R. Granting in Part and Den. in

Part Pl.’s Mot. for Att’ys Fees and Costs (“Objections”) at 5,
ECF No. 25.

Prior to the deadline, Plaintiff’s counsel had

attempted to contact Defendant in order to identify the Deputy
Corporation Counsel assigned to the case, but was unsuccessful.
Decl. of Richard L. Holcomb in Supp. of Mot. for Att’ys Fees
(“Holcomb Declaration”) ¶ 12, ECF No. 12-6.

On November 18,

2015, Plaintiff’s counsel received an email from Curtis Sherwood
1

The November 9 Demand Letter is stamped “Received” by
Corporation Counsel for the City and County of Honolulu on
November 9, 2015 at 11:01 a.m.
- 2 -

confirming that he had received a copy of the Complaint, but not
the November 9 Demand Letter.

Id. ¶ 13.

Plaintiff’s counsel

emailed the letter to Mr. Sherwood that day.

Id.

On November 24, 2015, Plaintiff’s counsel sent a
follow-up letter to Defendant detailing Plaintiff’s efforts to
contact Defendant about the case and again requesting a
response.

Ex. D to Pl.’s Mot., ECF No. 12-11.

The letter

further stated that Plaintiff’s demand for fees and costs had
increased to $12,000, as Defendant’s lack of response had caused
counsel to begin drafting the Motion for Preliminary Injunction
referenced in the November 9 Demand Letter.

Id. at 2.

The next

day, Mr. Sherwood contacted Plaintiff’s counsel on behalf of
Defendant, noting that “the City is generally open to settlement
discussions.”

Ex. 1 to Def.’s Opp’n at 1, ECF No. 21-2.

Mr.

Sherwood’s letter also asked Plaintiff’s counsel to be mindful
of the attorneys’ fees issue, as that could complicate any
efforts to settle.

Id. at 2.

Finally, the letter proposed that

the parties hold a discovery conference on December 4.

Id.

Following Mr. Sherwood’s November 25 letter, the
parties engaged in “meaningful negotiations.”

Objections at 20.

At the December 4 discovery meeting, the parties tentatively
agreed to settle all issues, with the exception of the amount of
attorneys’ fees.

Holcomb Declaration ¶ 18; Decl. of Counsel

(“Sherwood Declaration”) ¶ 24, ECF No. 21-1.
- 3 -

On December 18, 2015, after further negotiations,
Plaintiff’s counsel emailed Defendant a proposed settlement
agreement.

Ex. E to Pl.’s Mot., ECF No. 12-12.

The email

stated that if Plaintiff did not hear back from Defendant by
December 23, Plaintiff would file his Motion for Preliminary
Injunction on December 28.

Id.

Defendant’s counsel did not

respond until December 28, when he reiterated the City’s
willingness to settle, but noted that the City still took issue
with the amount Plaintiff had requested for attorneys’ fees.
Ex. 2 to Def.’s Opp’n, ECF No. 21-3; Holcomb Declaration ¶ 24.
Plaintiff’s counsel responded to Defendant later that day,
indicating that Plaintiff would be filing his Motion for
Preliminary Injunction that day, as well as a Motion for
Judgment on the Pleadings counsel had begun drafting the day
prior.

Ex. I to Pl.’s Mot. at 1, ECF No. 12-16.

Neither motion

was ever filed.
After the parties exchanged several more drafts of the
proposed settlement agreement, a final Settlement Agreement was
fully executed on January 21, 2016.

Holcomb Declaration ¶¶ 28-

30; Sherwood Declaration ¶ 28; General Release and Settlement
Agreement (“Settlement Agreement”), ECF No. 12-8.

The

Settlement Agreement includes substantially all of the relief
Plaintiff requested in his Complaint.
30, with Settlement Agreement at 2.
- 4 -

Compare Complaint at 29-

On February 8, the Court

entered an Order and Stipulation for Dismissal of All Claims and
Parties with Prejudice (“Stipulation for Dismissal”).
15.

ECF No.

Both the Settlement Agreement and the Stipulation for

Dismissal contemplated that the issue of attorneys’ fees and
costs would be decided by the Court.

Settlement Agreement at 4;

Stipulation for Dismissal at 2.
On February 4, 2016, Plaintiff submitted a Motion for
Attorneys’ Fees and Costs, requesting $46,447.63 in attorneys’
fees and $568.40 in costs.
(“Pl.’s Mot.”), ECF No. 12.

Mot. for Att’ys Fees and Costs
Defendant filed an Opposition to

Plaintiff’s Motion on February 19, 2016, Def.’s Am. Mem. in
Opp’n to Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 21; and Plaintiff
filed a Reply in support of its Motion on February 26, 2016,
Reply to Resp. in Opp’n to Pl.’s Mot., ECF No. 22.

On March 24,

2016, Magistrate Judge Puglisi issued his Findings and
Recommendation to Grant in Part and Deny in Part Plaintiff’s
Motion for Attorneys’ Fees and Costs (“F & R”).

ECF No. 24.

The F & R recommends that the Court award Plaintiff $13,912.04
in attorneys’ fees and $400.00 in costs.

Id. at 21.

Plaintiff filed his Objections to the F & R on April
7, 2016.

ECF No. 25.

On April 21, 2016, Defendant filed a

Response to the Objections.
Resp.”), ECF No. 26.

Def.’s Resp. to Objections (“Def.’s

Finally, Plaintiff filed a Reply in

- 5 -

support of his Objections on April 28, 2016.

Pl.’s Reply to

Def.’s Resp., ECF No. 27.
STANDARD
A district court reviews de novo those portions of a
magistrate judge’s findings and recommendation to which an
objection is made and “may accept, reject, or modify, in whole
or in part, the findings and recommendation made by the
magistrate judge.”

28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b); United States v. Rivera-Guerrero, 377 F.3d 1064, 1070
(9th Cir. 2004); L.R. 74.2.

Under a de novo standard of review,

the court “review[s] 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).
“[The] district court has discretion, but is not
required, to consider evidence presented for the first time in a
party’s objection to a magistrate judge’s recommendation.”
Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (citation
omitted).

It may also consider the record developed before the

magistrate judge.

L.R. 74.2.

The district court must arrive at

its own independent conclusions about those portions of the
magistrate judge’s report to which objections are made.

United

States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989); Benihana
of Tokyo, LLC v. Angelo, Gordon & Co., Civ. No. 15-00028 ACK- 6 -

RLP, 2015 WL 5439357, at *2 (D. Haw. Sept. 14, 2015); see also
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“The statute makes it clear that the district
judge must review the magistrate judge’s findings and
recommendations de novo if objection is made, but not otherwise)
(emphasis in original).
Objections to a magistrate judge’s recommendation are
usually treated as non-hearing motions to be decided on the
submissions.

L.R. 7.2(e).

The Court finds that a hearing in

this matter is neither necessary nor appropriate. See id.
DISCUSSION
In his Motion for Attorneys’ Fees and Costs, Plaintiff
requested a total of $46,447.63 in attorneys’ fees and $568.40
in costs.

F & R at 2.

In reducing these amounts, the

Magistrate Judge recommended a total award of $13,912.04 in
attorneys’ fees and $400.00 in costs.

Id. at 21.

The

Magistrate Judge reasoned that (1) counsel’s requested hourly
rates were not reasonable; (2) hours spent on certain documents
and tasks were excessive; (3) hours billed for tasks performed
by multiple attorneys were duplicative; and (4) certain costs
were not properly itemized and documented.

See generally F & R.

In his Objections, Plaintiff specifically objected to
the following:

(1) the Magistrate Judge’s recommendation that

attorney Richard L. Holcomb receive $200.00 per hour, and that
- 7 -

attorney Alan A. Beck receive $150.00 per hour2; (2) the
Magistrate Judge’s recommendation that Plaintiff receive no
compensation for work spent on certain unfiled documents; (3)
the Magistrate Judge’s deduction of hours spent on the Motion
for Attorneys’ Fees and Costs and Reply in support thereof; (4)
the Magistrate Judge’s deduction of hours for duplicative
billing; and (5) the Magistrate Judge’s deduction of $168.40 in
costs associated with printing fees.

Objections at 7-8.

Plaintiff did not object to the Magistrate Judge’s
recommendation that 2.7 hours be deducted from time spent by an
unnamed paralegal on clerical tasks.

See F & R at 18.

Nor did

Plaintiff object to a deduction of 0.5 hours from Mr. Holcomb’s
time for work on a retainer agreement.

See id. at 18-19.

Therefore, having reviewed these portions of the F & R for clear
error, the Court ADOPTS these recommendations.

Benihana of

Tokyo, 2015 WL 5439357, at *2.
I.

Entitlement to Attorneys’ Fees and Costs

A court, in its discretion, may award a prevailing
party reasonable attorneys’ fees as part of the costs in a suit
brought pursuant to 42 U.S.C. § 1983.

42 U.S.C. § 1988(b).

In

order to attain prevailing party status, “a plaintiff must not

2

Plaintiff mistakenly states that the Magistrate Judge reduced
Mr. Beck’s hourly rate to $185.00. Objections at 7. In fact,
the Magistrate Judge reduced Mr. Beck’s hourly rate to $150.00.
F & R at 10.
- 8 -

only achieve some material alteration of the legal relationship
of the parties, but that change must also be judicially
sanctioned.”

Shapiro v. Paradise Valley Unified Sch. Dist. No.

69, 374 F.3d 857, 865 (9th Cir. 2004) (internal quotation marks
omitted).
The Magistrate Judge found that the parties’
Settlement Agreement conferred prevailing party status on
Plaintiff.

F & R at 6.

Because neither of the parties objects,

the Court therefore ADOPTS the Magistrate Judge’s finding that
Plaintiff is a prevailing party entitled to an award of
attorneys’ fees and costs.
II.

Calculation of Attorneys’ Fees

Courts use the lodestar method in calculating an award
of reasonable attorneys’ fees in § 1983 cases.

Cunningham v.

Cty. of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

The

lodestar amount is determined by “the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.”

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

Subsumed in the lodestar calculation are the following factors:
“(1) the novelty and complexity of the issues, (2) the special
skill and experience of counsel, (3) the quality of
representation, . . . (4) the results obtained . . . and (5) the
contingent nature of the fee agreement.”

- 9 -

Morales v. City of San

Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996) (internal citations
and quotation marks omitted).
Once calculated, the lodestar amount is presumed
reasonable.

City of Burlington v. Dague, 505 U.S. 557, 562

(1992); Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th
Cir. 2000).

However, in “rare and exceptional circumstances” a

court may adjust the lodestar amount based on those factors
articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,
70 (9th Cir. 1975), that are not subsumed in the court’s initial
lodestar calculation.
96 F.3d at 363-64.

Fischer, 214 F.3d at 1119 n.4; Morales,

These factors are:

the time and labor

required for the case, the preclusion of other employment by the
attorney due to acceptance of the case, the customary fee, time
limitations imposed by the client or the circumstances, the
“undesirability” of the case, the nature and length of the
professional relationship with the client, and awards in similar
cases.

Kerr, 526 F.2d at 70.
a. Hourly Rate
Plaintiff objects to the Magistrate Judge’s

recommendation that Mr. Holcomb’s hourly rate be reduced from
$300.00 to $200.00, and that Mr. Beck’s hourly rate be reduced
from $225.00 to $150.00.

Objections at 7.

Mr. Holcomb is an

attorney with 11 years of experience, and Mr. Beck is an
attorney with 7 years of experience.
- 10 -

See Holcomb Declaration

¶ 35; Decl. of Alan Beck ¶ 3, ECF No. 12-7.

Plaintiff contends

that the declarations he submitted in support of his Motion for
Attorneys’ Fees and Costs indicate that attorneys in this
jurisdiction charge clients higher rates than that requested by
counsel for this case; that the Magistrate Judge recommended
counsel be awarded the same rate they were awarded for work done
four years ago; and that the recommended rate is not adequate to
attract counsel to civil rights cases such as the instant case.
Objections at 8-10.
In setting the reasonable hourly rate for purposes of
the lodestar calculation, courts will look to the “prevailing
market rates in the relevant community.”

Gonzalez v. City of

Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013).

“Generally, when

determining a reasonable hourly rate, the relevant community is
the forum in which the district court sits.”

Id. (quoting

Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir.
2010)).

In making its determination, a court will consider the

experience, skill, and reputation of the attorney.
06.

Id. at 1205-

“Importantly, the fee applicant has the burden of producing

‘satisfactory evidence’ that the rates he requests meet these
standards.”

Id. at 1206.

In support of his Motion for Attorneys’ Fees and
Costs, Plaintiff submitted declarations from multiple attorneys
attesting to the hourly rates they bill clients.
- 11 -

See Decl. of

Brian Brazier, ECF No. 12-2 (attorney with nine and a half years
of experience who bills clients $250.00 per hour); Decl. of
Frederick J. Arensmeyer, ECF No. 12-3 (attorney with ten years
of experience who bills clients $395.00 per hour); Decl. of
Kevin O’Grady, ECF No. 12-4 (attorney with nineteen years of
experience who bills clients $350.00 per hour); Decl. of Joseph
Rosenbaum, ECF No. 18-1 (attorney with six and a half years of
experience who bills clients $297.00 per hour).
Plaintiff asserts that these declarations show that
the rates requested for Mr. Holcomb and Mr. Beck are lower than
the rates counsel with similar years of experience charge
clients, and that the requested rates are therefore reasonable.
Objections at 8, 16.

Addressing this argument, the Magistrate

Judge noted that “the fees stated in the attorneys’ declarations
vary significantly without explanation.”

F & R at 9.

Then,

taking into consideration “the Court’s experience with
attorneys’ fees motions, the information provided by counsel,
and the Court’s knowledge of the prevailing rates in the
community,” the Magistrate Judge reduced counsel’s rates to
$200.00 for Mr. Holcomb and $150.00 for Mr. Beck.

F & R at 10.

As Defendant argued in its Opposition to the Motion
for Attorneys’ Fees and Costs, “none of the declarations attest
that the hourly rate charged to clients has been awarded by the
Court in this district.”

Def.’s Opp’n at 16.
- 12 -

Indeed, “there is

a distinction between the prevailing rates in the community,
i.e., what one might charge and collect from a client, and the
prevailing rates awarded by the Court.”

Onishi v. Redline

Recovery Servs., LLC, Civ. No. 10-00259 DAE-KSC, 2010 WL
5128723, at *2 n.1 (D. Haw. Nov. 12, 2010), adopted, Civil No.
10-00259 DAE-KSC, 2010 WL 5128720 (D. Haw. Dec. 9, 2010); see
also Au v. Funding Grp., Inc., 933 F. Supp. 2d 1264, 1275 (D.
Haw. 2013) (“To ensure consistency within this district, the
Court is guided by the hourly rates generally awarded in this
district, not the amounts charged to clients, nor rates that
appear to be outliers.”).

Additionally, the declarations fail

to indicate the amount these attorneys are actually able to
collect from paying clients.
Moreover, the Court agrees with the Magistrate Judge
that the declarations attest to rates that vary significantly.
Mr. Brazier and Mr. Arensmeyer, who have nine and a half and ten
years of experience, respectively, charge hourly rates of
$250.00 and $395.00.

Mr. O’Grady, an attorney with nineteen

years of experience, charges only $350.00 per hour.

While

Plaintiff’s point is that the requested rates for his counsel
are lower than the rates outlined in the declarations, the
variation in the declarations indicates that the Court must look
to other hourly rates typical in this district in order to gain
a better sense of what is reasonable.
- 13 -

The Court finds helpful the hourly rates awarded to
Mr. Holcomb and Mr. Beck in other civil rights cases in this
district.

In Hawaii Defense Foundation v. City and County of

Honolulu, Judge Seabright awarded Mr. Holcomb an hourly rate of
$200.00 and Mr. Beck an hourly rate of $150.00.

Civ. No. 12-

00469 JMS-RLP, 2014 WL 2804448, at *5 (D. Haw. June 19, 2014).
Later, in De-Occupy Honolulu v. City and County of Honolulu,
Judge Seabright awarded Mr. Holcomb $200.00 per hour.

Civ. No.

12-00668 JMS-KSC, 2015 WL 1013834, at *11 (D. Haw. Mar. 9,
2015).

A survey of multiple other cases indicates that the

hourly rates recommended by the Magistrate Judge are in line
with the rates typically awarded in this district.

See Haw.

Def. Found., 2014 WL 2804448, at *5 n.6 (collecting cases
“discussing the prevailing hourly rates in this district”).

The

added benefit of those cases awarding fees to Mr. Holcomb and
Mr. Beck specifically is that they incorporate this district’s
familiarity with counsel’s skill and reputation in the legal
community, which the Court must also consider in making an
award.
In addition to the attorney declarations, Plaintiff
also submitted a declaration from a local plumber with six years
of experience, who bills $189.00 per hour during normal business
hours and $250.00 per hour after hours.
Hazzard, ECF No. 12-5.

Decl. of Peyton

Somewhat facetiously, Plaintiff asserts
- 14 -

that “counsel would have been better off financially had they
abandoned the practice of law and apprenticed as a plumber.”
Objections at 18.

The Court finds this argument unavailing.

The hourly rate charged by a plumber is completely inapposite to
that charged by an attorney in this district, and the Court will
not rely on this evidence in determining an award of attorneys’
fees in a civil rights case.
Next, the Court does not find the Pacific Business
News article Plaintiff submitted to be helpful in determining a
reasonable rate for counsel in this case.

Plaintiff argues that

the article shows that the City has been willing to pay outside
counsel a range of $295.00 to $495.00 per hour, and that these
rates should guide this Court’s fee determination.
at 11.

Objections

However, this argument was recently rejected in Hawaii

Defense Foundation, where the court explained that “[t]he hourly
rates listed in this article are not tied in any way to the
particular attorneys charging such rates – there is no
information indicating the experience, skill, and reputation of
counsel.”

Haw. Def. Found., 2015 WL 2804448, at *4.

The court

in Hawaii Defense Foundation also noted that the rail transit
litigation described in the article, which was incredibly
complex, did not provide a helpful point of comparison for the
“relatively simple First Amendment” issue presented in that
case.

Id.
- 15 -

For the same reasons, the Court declines to seek
guidance from the article in this case.

As the Magistrate Judge

stated, “[T]he record indicates that, with the exception of the
issue of attorneys’ fees, this case has not been contentious and
the parties settled before Plaintiff filed any pleadings other
than the Complaint.”

F & R at 12.

Further, the Magistrate

Judge found that the issues presented by this case were not
particularly novel because they related to the enforcement of
this Court’s recent ruling in Fotoudis v. City and County of
Honolulu, 54 F. Supp. 3d 1136 (D. Haw. 2014).
agrees.

This Court

While the instant case dealt with a slightly different

issue than that presented in Fotoudis, see Objections at 17 n.7,
the fact remains that this was a relatively short-lived and
uncontested case in which Plaintiff filed only one pleading.
The Court therefore finds that the issues presented by this case
were neither novel nor complex.
Additionally, the Court is not persuaded by
Plaintiff’s submission of exhibits detailing Hawaii’s cost of
living or its submission of the Laffey matrix, a grid of
inflation-adjusted hourly rates for attorneys in the Washington,
D.C. area.

See Haw. Def. Found., 2014 WL 2804448, at *3 (citing

Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983)).
None of these exhibits attests to the relevant factors the Court
must consider in determining a reasonable hourly rate for
- 16 -

Plaintiff’s counsel, i.e., the experience, reputation, and skill
of Mr. Holcomb and Mr. Beck, in light of the prevailing market
rates in this community.

Id. (rejecting evidence regarding the

cost of living in Hawaii); Prison Legal News, 608 F.3d at 454
(“[J]ust because the Laffey matrix has been accepted in the
District of Columbia does not mean that it is a sound basis for
determining rates elsewhere, let alone in a legal market 3,000
miles away.”).
Finally, Plaintiff argues that fees in this district
are limited by a so-called “cap,” which Plaintiff asserts is
unique to civil rights cases.

Objections at 13-14 and n.6.

the Ninth Circuit states:
District judges can certainly consider the
fees awarded by other judges in the same
locality in similar cases.
But adopting a
court-wide policy – even an informal one –
of “holding the line” on fees at a certain
level goes well beyond the discretion of the
district court.
One problem with any such
policy is that it becomes difficult to
revise over time, as economic conditions
change; here the rate apparently hadn't
changed for 10 years, and even a $50
increase in the hourly rate was considered a
“big
step
.
.
.
for
the
court
generally” . . . .
The
district
court's
function is to award fees that reflect
economic conditions in the district; it is
not to “hold the line” at a particular rate,
or to resist a rate because it would be a
“big step.”
Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir.
2008).
- 17 -

As

There is no evidence that rates awarded by this
district have remained unchanged for anywhere near the past ten
years, a practice that occurred in Sacramento about which the
Ninth Circuit expressed concern in Moreno.

Id.

This district

awarded Mr. Beck an hourly rate of $150.00 as recently as 2014,
see Hawaii Defense Foundation, 2014 WL 2804448, at *5, and
awarded Mr. Holcomb an hourly rate of $200.00 just last year,
see De-Occupy Honolulu, 2015 WL 1013834, at *11.

The Court

feels such rates continue to ensure that future counsel will be
attracted to civil rights cases such as this one.
For all of the foregoing reasons, the Court finds that
the hourly rates requested for Mr. Holcomb and Mr. Beck are
unreasonable, and that the Magistrate Judge recommended
reasonable rates given counsels’ experience, skill, and
reputation, as well as the prevailing rates in the community.
The Court therefore ADOPTS the Magistrate Judge’s recommendation
that Mr. Holcomb receive an hourly rate of $200.00, and that Mr.
Beck receive an hourly rate of $150.00.
b. Unfiled Documents
Plaintiff also objects to the Magistrate Judge’s
deduction of hours spent on drafting unfiled documents,
specifically, the Motion for Preliminary Injunction, the Motion
for Judgment on the Pleadings, and the Rule 26(f)(2) Statement.
Objections at 7-8.
- 18 -

i. Motion for Preliminary Injunction
The Magistrate Judge deducted 40.3 hours from Mr. Beck
and 4.4 hours from Mr. Holcomb for time spent researching and
drafting the unfiled Motion for Preliminary Injunction.

F & R

at 15; see also Holcomb Timesheet, ECF No. 12-26 at 5; Beck
Timesheet, ECF No. 12-27 at 1.

The Magistrate Judge reasoned

that because the Motion was not filed, it was not reasonably
necessary to the case.

F & R at 13-14.

In further support of

his recommendation, the Magistrate Judge noted that Plaintiff’s
counsel set “unreasonably short deadlines” for Defendant’s
responses, began drafting the Motion before allowing Defendant
the full time to respond, and that much of the work on the
Motion took place after Defendant had offered to comply with all
of Plaintiff’s demands.

Id. at 14.

Plaintiff objects to this recommendation, contending
that it was the City’s failure to respond by the deadline
Plaintiff had set that caused Plaintiff to continue drafting the
Motion for Preliminary Injunction.

Objections at 21-22.

Further, Plaintiff asserts that he could have filed the Motion
for Preliminary Injunction contemporaneously with the Complaint,
and that he should not therefore be “punished” for delaying the
filing in order to avoid incurring additional fees.

Id. at 23.

Defendant responds that under 42 U.S.C. § 1988,
attorneys’ fees are only permissible for time “reasonably
- 19 -

expended on the litigation.”
Hensley, 461 U.S. at 432).

Def.’s Resp. at 9 (quoting

Thus, Defendant argues, fees for

work on unfiled motions should be denied because those motions
do not advance the litigation.

Id. (citing James v. City and

Cty. of Honolulu, Civ. No. 13-00397 JMS-BMK, 2014 WL 6908313, at
*12 (D. Haw. Dec. 8, 2014)).
In James, the District of Hawaii looked to the Middle
District of Florida for the proposition that “time spent on a
pleading that was never filed does not advance the case and is
not chargeable.”

James, 2014 WL 6908313, at *12 (quoting

Brother v. Int’l Beach Club Condo. Ass’n, Inc., Civ. No. 04-444
ORL-DAB, 2005 WL 1027240, at *5 (M.D. Fla. 2005)).

Although the

James court was faced with a Motion to Withdraw as Counsel,
rather than a pleading, it specifically found that time spent on
an unfiled motion of this type was not reasonably expended on
the litigation.

Id.

The court therefore declined to award

attorneys’ fees for the motion.

Id.

Brother, the case upon

which James relied, declined to award attorneys’ fees for time
spent on researching and drafting an unfiled Amended Complaint.
Brother, 2005 WL 1027240, at *5.
Here, the Motion for Preliminary Injunction served a
different function than the Motion to Withdraw as Counsel in
James or the Amended Complaint in Brother.

Not knowing whether

or not Defendant would be willing to agree to the relief
- 20 -

Plaintiff requested in his Complaint or the November 9 Demand
Letter, Plaintiff’s counsel began drafting a Motion for
Preliminary Injunction in order to obtain expedited relief for
their client in the event the parties could not reach settlement
in a timely manner.

Additionally, by setting a series of,

albeit short, deadlines by which Defendant was required to
respond, Plaintiff was able to quickly bring Defendant to the
table to start negotiating a settlement.

Plaintiff had no

obligation to wait until he was certain Defendant would be
unwilling to settle before filing the Motion, let alone starting
to draft it.

Rather, it makes sense that Plaintiff would begin

drafting the Motion earlier rather than later in order to
prepare for the possibility that Defendant might not settle, as
may have seemed likely given its initial lack of response.
The fact that Plaintiff’s counsel did not wait until
the November 13 deadline to begin drafting the Motion for
Preliminary Injunction does not change the analysis, because the
parties have cited to no legal authority stating that a party
must wait for such a self-imposed deadline to pass before
drafting or filing a motion.

The November 9 Demand Letter

states, “I intend to file a Motion for Preliminary Injunction
and/or Permanent Injunction if [Plaintiff’s] terms are not
met . . . . This demand is good through close of business on
Friday, November 13, 2015.”

Ex. C to Pl.’s Mot. at 2.
- 21 -

Thus,

while it is not clear from this language whether the November 13
deadline was solely the date by which Plaintiff required some
sort of response from Defendant, or whether November 13 was the
date after which Plaintiff would file its motion, it is
reasonable to think that Plaintiff may have intended the latter
interpretation.

In that instance, it would have been completely

reasonable for Plaintiff’s counsel to have begun drafting the
Motion prior to November 13, in order to ensure that it could be
filed as soon after the close of business on that date as
possible.
The Court agrees with the Magistrate Judge that the
deadlines set by Plaintiff were “unreasonably short.”
at 14.

See F & R

Nevertheless, Plaintiff was well within his rights to

file a Motion for Preliminary Injunction after the close of
business on November 13.

Indeed, as Plaintiff points out, he

could have filed the Motion with his Complaint.

The fact that

he chose not to do so does not render work on the Motion
unnecessary, for the reasons discussed above.
The Court does note, however, that once the parties
began settlement discussions and reached agreement on all issues
save for attorneys’ fees, drafting the Motion for Preliminary
Injunction was no longer reasonable.

On November 24, 2015,

Plaintiff’s counsel sent a letter to Defendant describing
Plaintiff’s efforts to contact Defendant about the case and
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again requesting a response.

Ex. D. to Pl.’s Mot.

In the

letter, Plaintiff’s counsel writes, “Our fees have now increased
because of the City’s failure to respond which has caused us to
draft a Motion for Preliminary Injunction.

Our demand for fees

and costs has now increased from $8000 to $12000.”

Id. at 2.

The very next day, Defendant’s counsel replied to
Plaintiff’s counsel, stating, “I would note that the City is
generally open to settlement discussions . . . . I am hopeful
that this matter can be brought to a speedy resolution and would
like to accommodate your demand to meet by agreeing to
participate in a discovery conference on December 4th, 10:00
a.m., at your office.

In the meantime, however, I would ask

that you be more conscious of the attorney’s fees issue as that
may play a significant role in whether the City is willing to
resolve this case via settlement.”
1-2.

Ex. 1 to Def.’s Opp’n at

Thus, it became clear that by November 25 Defendant was

willing to settle the underlying issues of the lawsuit, but that
the parties still needed to resolve the issue of attorneys’
fees.

The ensuing settlement negotiations and final Settlement

Agreement confirm this.
Therefore, the time counsel spent working on the
Motion for Preliminary Injunction on December 26 and 27 does not
appear to reasonably advance the case.

By that point, the

parties had agreed to settle the case and were exchanging
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proposed settlement agreements.

See Holcomb Declaration ¶¶ 18-

24; Sherwood Declaration ¶¶ 24-28.

While Plaintiff again

threatened to file his Motion for Preliminary Injunction on
December 28 if the parties were unable to reach an agreement, it
seems unlikely that the settlement agreement would have fallen
through with regards to Plaintiff’s constitutional claims at
that point, since Defendant was already willing to agree to all
of Plaintiff’s demands.

Sherwood Declaration ¶ 24.

Indeed,

despite their continuing disagreement regarding the amount of
attorneys’ fees, the parties successfully wrote up and executed
a settlement agreement, with the remaining issue of the fee
award to be determined by the Court.

Id. ¶¶ 26-28; Holcomb

Declaration ¶¶ 28-30.
For the foregoing reasons, the Court finds that hours
spent researching and drafting the unfiled Motion for
Preliminary Injunction through November 25, 2015 were reasonably
expended on the litigation.

However, the hours Mr. Beck logged

for drafting the Motion on December 26 and 27, as well as the
hours Mr. Holcomb logged on December 26 for a strategy
discussion regarding the Motion, were not reasonable, because
the parties had already agreed to settle the case by that point.
Accordingly, the Court MODIFIES the Magistrate Judge’s deduction
of all time spent drafting the Motion for Preliminary
Injunction, and credits the attorneys for their work on the
- 24 -

Motion through November 25, 20153; however, the Court deducts .2
hours from Mr. Holcomb’s time and 7.6 hours from Mr. Beck’s time
for work on the Motion that occurred after November 25.
ii. Motion for Judgment on the Pleadings
The Magistrate Judge deducted the 3.3 hours Mr.
Holcomb spent on the unfiled Motion for Judgment on the
Pleadings for substantially the same reasons as his deduction
for hours spent on the Motion for Preliminary Injunction.
at 13-15.

F & R

Plaintiff’s objections to the deduction of time for

these two motions are also substantially similar, with Plaintiff
adding that he could have filed the Motion for Judgment on the
Pleadings immediately after Defendant filed an Answer.
Objections at 23.
Plaintiff’s counsel began drafting the Motion for
Judgment on the Pleadings on December 27, 2015, and the first
time he informed Defendant of this Motion was on December 28.
Holcomb Timesheet at 5; Ex. I to Pl.’s Mot. at 1.

Since the

parties had already agreed to settle the case at this point and
the Motion for Judgment on the Pleadings did nothing to

3

In Plaintiff’s Motion for Attorneys’ Fees and Costs, Mr. Beck
voluntarily reduced the time he spent drafting and researching
the Motion for Preliminary Injunction by 15.7 hours. Beck
Timesheet at 2; Decl. of Alan Beck ¶ 9; see also Motion at 30.
Therefore, the Court will likewise deduct 15.7 hours from the
total hours spent on the Motion for Preliminary Injunction
reflected on Mr. Beck’s timesheet.
- 25 -

otherwise advance the litigation, the Court finds that the hours
spent researching and drafting this Motion were unreasonable.
Accordingly, the Court ADOPTS the Magistrate Judge’s
recommendation that the Court deduct 3.3 hours from Mr.
Holcomb’s time for work spent on the Motion for Judgment on the
Pleadings.
iii. Rule 26(f)(2) Conference Statement
Finally, Plaintiff objects to the Magistrate Judge’s
deduction of 2.5 hours for time spent on the Rule 26(f)(2)
conference statement.

Objections at 7-8.

The Magistrate Judge

noted that Mr. Beck’s timesheet contained an entry on December
4, 2015 that stated, “Drafted 26J conference statement.”
at 15; Beck Timesheet at 1.

F & R

Given that the parties met on that

date for a Rule 26(f) conference, the Magistrate Judge reasoned
that this entry appeared to describe time spent drafting a
statement to submit to the Court pursuant to Federal Rule of
Civil Procedure 26(f)(2).4

F & R at 15.

Since no such statement

was filed, the court deducted the time spent on the statement.
Because Plaintiff did not file a Rule 26(f)(2)
statement in this action, nor did any such statement advance the
instant litigation, the Court ADOPTS the Magistrate Judge’s

4

Plaintiff appears to agree that this entry did indeed refer to
a Rule 26(f)(2) statement, given his reference to the statement
as such in his Objections. Objections at 8.
- 26 -

recommendation that 2.5 hours be deducted from Mr. Beck’s time
for drafting what appears to be that statement.
c. Excessive Hours
Next, Plaintiff objects to the Magistrate Judge’s
deduction of hours spent drafting both the Motion for Attorneys’
Fees and Costs and the Reply in support thereof.
8.

Objections at

Of the 49 hours Plaintiff requested for work on the Motion,

the Magistrate Judge deducted 30 hours (11.7 from Mr. Holcomb
and 18.3 from Mr. Beck); of the 23.9 hours requested for work on
the Reply, he deducted 13 hours (4.94 hours from Mr. Holcomb and
8.06 from Mr. Beck).

F & R at 16.

The court found that time

spent on both filings was unreasonably excessive, and further
found that “nearly all the exhibits and ten pages of arguments
made in Plaintiff’s Motion [for Attorneys’ Fees and Costs] are
taken directly from a previous motion for attorneys’ fees filed
by Plaintiff’s counsel in an unrelated case.”

Id. at 16

(referencing Haw. Def. Found., Civ. No. 12-00469 JMS-RLP, ECF
No. 56).
Upon a de novo review, the Court notes that nearly
thirteen pages of Plaintiff’s Motion for Attorneys’ Fees and
Costs are taken directly from motions for attorneys’ fees filed
in unrelated cases.

See Haw. Def. Found., Civ. No. 12-00469

JMS-RLP, ECF No. 56; De-Occupy Honolulu, Civ. No. 12-00668 JMSKSC, ECF No. 205.

Similarly, many of the exhibits attached to
- 27 -

Plaintiff’s Motion are also included as exhibits to those
motions.

Interestingly, in a letter to Defendant dated December

28, 2015, Plaintiff’s counsel writes, “I concede that this
District Court has awarded me only $200 [per hour] which I
protest and will continue to do so each and every time I seek an
award . . . . As you may be aware, I have briefed these issues
extensively.”

Ex. I to Pl.’s Mot. at 2.

Thus, the Court finds it appropriate to deduct an
additional five hours from the time requested for work on the
Motion for Attorneys’ Fees and Costs (1.95 from Mr. Holcomb and
3.05 from Mr. Beck).

With regards to the Reply in support of

the Motion, the Court agrees with the Magistrate Judge that the
requested 23.9 hours is unreasonably excessive for a 15-page
Reply.

Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210

(9th Cir. 1986) (stating that the number of hours requested in a
motion for attorneys’ fees may be reduced “if the hours expended
are deemed excessive or otherwise unnecessary”).
For the foregoing reasons, the Court MODIFIES the
Magistrate Judge’s deduction of hours for work on the Motion for
Attorneys’ Fees and Costs, and deducts a total of 35 hours from
the requested 49 hours (13.65 from Mr. Holcomb and 21.35 from
Mr. Beck).

The Court ADOPTS the Magistrate Judge’s deduction of

13 hours from the requested 23.9 hours for work on the Reply in

- 28 -

support of the Motion for Attorneys’ Fees and Costs (4.94 hours
from Mr. Holcomb and 8.06 hours from Mr. Beck).
d. Duplicative Hours
Plaintiff next objects to the Magistrate Judge’s
deduction of 5.8 hours from Mr. Beck’s time for duplicative
billing.

Objections at 26-27.
“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.”

Seven Signatures Gen. P’ship v. Irongate Azrep BW

LLC, 871 F. Supp. 2d 1040, 1055 (D. Haw. 2012).

“In such a

situation, the Court typically deducts the time spent by the
lowest-billing attorney.”

Id.

Here, because Mr. Holcomb and

Mr. Beck both billed for an initial phone consultation with the
client, as well as two meetings with each other to discuss the
case, the Magistrate Judge deducted the time billed by Mr. Beck
for these activities.

F & R at 17.

Relying on Democratic Party of Washington State v.
Reed, 388 F.3d 1281 (9th Cir. 2004), Plaintiff argues that Mr.
Beck’s participation in the three meetings “was essential
because of his vast knowledge of Second Amendment litigation
which is emerging and constantly developing.”

Objections at 26.

Reed described certain scenarios where it might be appropriate
for multiple attorneys to bill their time for the same activity,
- 29 -

such as when a second attorney’s assistance is required in
arguing a case before a judge, or when a second attorney will be
arguing a case going forward and therefore needs to observe
argument before a judge in order to prepare for later
proceedings.

Id. at 1286-87.

The Court agrees with Defendant that “Mr. Beck’s
assistance is most correctly characterized as a means for Mr.
Holcomb to learn and use Mr. Beck’s knowledge, which would not
be compensated under Reed.”

See Def.’s Resp. at 12.

Indeed,

Mr. Beck’s sharing his knowledge regarding Second Amendment
litigation falls within the realm of activities that would
normally take place at a meeting between co-counsel, for which
duplicative billing is not allowed.
The Court therefore ADOPTS the Magistrate Judge’s
5.8-hour deduction from Mr. Beck’s time.
e. Costs
“It is well established that attorney’s fees under 42
U.S.C. § 1988 include reasonable out-of-pocket litigation
expenses that would normally be charged to a fee paying client,
even if the court cannot tax these expenses as ‘costs’ under 28
U.S.C. § 1920.”

Trs. of the Constr. Indus. & Laborers Health &

Welfare Tr. v. Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir.
2006).

- 30 -

In his Motion, Plaintiff requested $400.00 for the
filing fee in this case and $168.40 for printing fees.
Mot. at 29.

Pl.’s

The Magistrate Judge recommended that Plaintiff be

awarded $400.00 for the filing fee, but found that Plaintiff
failed to provide “an itemization of his expenses or
documentation supporting the requested [printing] costs.”
at 21.

F & R

Defendant contends that the Magistrate Judge was correct

in denying these costs, as the Bill of Costs submitted by
Plaintiff states, “SPECIAL NOTE:

Attach to your bill an

itemization and documentation for requested costs in all
categories.”

Def.’s Resp. at 13 (citing Ex. R to Pl.’s Mot.,

ECF No. 12-25) (emphasis added).
However, as Plaintiff points out, Mr. Holcomb’s
declaration provides an itemization of the costs that make up
the requested printing fees, including such information as the
number of printed copies and cost per page.
Holcomb Declaration ¶¶ 80-81.

Objections at 27;

This information allows the Court

to determine whether or not the requested printing costs are
reasonable.
The district’s Local Rules state, “The cost of copies
necessarily obtained for use in the case is taxable provided the
party seeking recovery submits an affidavit describing the
documents copied, the number of pages copied, the cost per page,
and the use of or intended purpose for the items copied.”
- 31 -

L.R.

54.2(f)(4).

Mr. Holcomb did just that in his declaration in

support of the Motion for Attorneys’ Fees and Costs.

Holcomb

Declaration ¶ 81.
Turning to the question of whether the requested
printing fees are reasonable, the Court notes that Mr. Holcomb’s
declaration lists three documents for which three copies were
made – presumably two as courtesy copies for the Court and one
copy for Defendant.

Id.

The number of pages listed comports

with the number of pages that comprised each of the documents
and its exhibits, where relevant.

Finally, the cost per page is

listed as $0.15, with tabs listed at $0.25 and an audio disc
listed at $1.00.

The court finds the requested printing fees

are reasonable.

See L.R. 54.2(f)(4) (“As of the effective date

of these rules, the practice of this court is to allow taxation
of copies at $.15 per page or the actual cost charged by
commercial copiers, provided such charges are reasonable.”).
The Court therefore MODIFIES the award of costs to
include the $168.40 in printing fees, for a total cost award of
$568.40.5
f. Objections to F & R
Plaintiff requests an additional 17.7 hours for Mr.
Holcomb for his time spent preparing the Objections to the F &
R.
5

Decl. of Richard Holcomb ¶¶ 3-5, ECF No. 25-1.

Defendant

$400.00 (filing fee) + $168.40 (printing fees) = $568.40.
- 32 -

argues that the Objections are meritless and that Plaintiff
should not be allowed to recover fees for time spent preparing
them.

Def.’s Resp. at 13-14.

The Court disagrees with this

characterization of the Objections.

Clearly, there was some

merit to the Objections, given this Court’s partial modification
of the award recommended by the Magistrate Judge.
However, the Court does agree with Defendant that much
of what comprises the Objections is largely duplicative of
earlier work – namely, the Motion for Attorneys’ Fees and Costs
and the Reply in support of that Motion.

In fact, of the 27

pages of Objections the Court found at least 13 pages that were
taken almost verbatim from the two earlier filings.
The Court thus finds that the amount of time spent on
the remainder of the Objections is excessive, and therefore
deducts 7.7 hours from the requested 17.7 hours, awarding Mr.
Holcomb 10 hours for his work on the Objections.
III.

Total Award

Based on the foregoing, the Court calculates the total
award of attorneys’ fees and costs as follows:

- 33 -

ATTORNEY

HOURS

RATE

TOTAL

Richard L. Holcomb, Esq.

68.916

$200.00

$13,782.00

Alan Beck, Esq.

41.097

$150.00

$6,163.50

2.88

$85.00

$238.00

Subtotal

$20,183.50

General Excise Tax (4.712%)

$951.05

Costs

$568.40

TOTAL

$21,702.95

Paralegal

CONCLUSION
For the foregoing reasons, the Court ADOPTS in part
and MODIFIES in part the Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff’s Motion for Attorneys’ Fees and
Costs.

The Court awards Plaintiff attorneys’ fees and costs of

$21,702.95.

6

(99.2 hours requested) – (3.5 hours on unfiled motions) –
(13.65 hours on Motion for Attorneys’ Fees and Costs) – (4.94
hours on Reply) – (7.7 hours on Objections) – (0.5 hours on
retainer agreement) = 68.91 hours.
7

(86.4 hours requested) – (10.1 hours on unfiled motions) –
(21.35 hours on Motion for Attorneys’ Fees and Costs) – (8.06
hours on Reply) – (5.8 hours for duplicative billing) = 41.09
hours.
Here, the “hours requested” figure incorporates Mr. Beck’s
voluntary reduction of 15.7 hours for time spent researching and
drafting the Motion for Preliminary Injunction.
8

(5.5 hours requested) – (2.7 hours on clerical tasks) = 2.8
hours.
- 34 -

IT IS SO ORDERED.
DATED:

Honolulu, Hawai’i, June 3, 2016.

________________________________
Alan C. Kay
Sr. United States District Judge

Roberts v. City and County of Honolulu, Civ. No. 15-00467 ACK-RLP, Order
Adopting in Part and Modifying in Part the Findings and Recommendation to
Grant in Part and Deny in Part Plaintiff’s Motion for Attorneys’ Fees and
Costs.

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