Bown v. Reinke et al

Filing 114

MEMORANDUM DECISION AND ORDER AWARDING ATTORNEY FEES AND COSTS - NOW THEREFORE IT IS HEREBY ORDERED, that the motion for attorney fees and costs (docket no. 96 ) is GRANTED, and that plaintiff be awarded costs andattorney fees from defendants as fol lows: Attorney fees of $39,611.20, paralegal fees of $1,261.00, costs of $2,627.40, for a total award of $43,499.60. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WILLIAM A. BOWN,
Plaintiff,

Case No. 1:12-cv-262-BLW

vs.
BRENT D. REINKE; RONA SIEGERT;
RANDY E. BLADES; JIMMIE H.
CROSBY; DANIEL METTIE; BECKY A.
BLAKE; RONALD D. PIXLER;
TIMOTHY J. RICHARDSON; CORIZON,
INC., fka CORRECTIONAL MEDICAL
SERVICES, INC., a Missouri corporation;
KAREN B. BARRETT, PA; APRIL
DAWSON, MD; CASSIE RICHINS, LPN;
and JOHN and JANE DOES 1-10,

MEMORANDUM DECISION
AND ORDER AWARDING
ATTORNEY FEES AND COSTS

Defendants.

INTRODUCTION
The Court has before it a motion for attorney fees. The motion is fully briefed and
at issue. For the reasons explained below, the Court will grant the motion and award
plaintiffs the sum of $43,499.60 representing their attorney fees and costs.
BACKGROUND
Plaintiff Bown, an inmate at the Idaho Maximum Security Institution, filed this
lawsuit against the provider of medical services at the jail, and various jail officials, for
delays in treating his heart ailment. In an earlier filed decision, the Court described
numerous instances of discovery abuse by defense counsel Phillip Collaer and Blake Hill
Memorandum Decision & Order – page 1

that ultimately forced Bown to file a motion to compel. See Memorandum Decision (Dkt.
No. 95). The Court held that the misconduct was so widespread and serious that it
required an award of attorney fees and costs. Id. at p. 16. The misconduct resulted in
substantial wasted time and effort by Bown’s counsel and by this Court. Id. The Court
directed counsel to file a petition for fees and costs. That petition has now been filed and
the matter has been fully briefed by both sides.
LEGAL STANDARD
In the Ninth Circuit, the proper method for determining a reasonable attorney fee
is to use the “lodestar method.” Haeger v. Goodyear Tire and Rubber Co., 813 F.3d
1233, 1249 (9th Cir. 2016). First, the trial court calculates attorney fees by multiplying
the number of hours reasonably spent by counsel by a reasonable hourly rate. Cotton v.
City of Eureka, Cal., 889 F. Supp. 2d 1154, 1165 (N.D. Cal. 2012). In setting the rate,
the district court also should consider the factors set forth in Kerr v. Screen Extras Guild,
Inc., 526 F.2d 67, 69–70 (9th Cir. 1975). The Kerr factors are: (1) the time and labor
required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of other employment by the
attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed
or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of
the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relation-ship with the client; and (12) awards in similar cases.
ANALYSIS
Memorandum Decision & Order – page 2

Bown seeks to recover the attorney fees incurred for three attorneys and a
paralegal. Attorneys John Robinson and Timothy Miller each worked about 40 hours (at
a rate of $350 an hour) to unravel the misconduct of defense counsel in discovery, while
Elisa Massoth worked about 44 hours (at a rate of $275 an hour) on this same task.
Defendants argue first that the hours submitted are too high. They allege that
many of the hours submitted do not relate strictly to the motion to compel. The Court
awarded “fees and costs incurred by Bown in preparing and filing the motion to compel.”
Id. (emphasis added). To prepare for filing that motion, Bown’s counsel made numerous
unsuccessful attempts to resolve the discovery issues, as recounted in the Court’s earlier
decision, and as required by the Court’s Local Rules. Id. at pp. 8-16. Those efforts were
rebuffed by defense counsel, and that conduct was part of the reason the Court awarded
the fees and costs. Id. That time is legitimately included in Bown’s fee petition.
Moreover, in preparing to file the motion, Bown’s counsel was forced to engage in
wasteful acts like reviewing bankers’ boxes of hard copy documents – and making many
hard copies of documents – all based on defense counsels’ false representations that no
digital copies existed. Bown’s counsel also wasted time in depositions because defense
counsel failed to turn over discoverable material.
All of the time submitted by Bown’s counsel was directly related to the motion to
compel and is compensable under the Court’s earlier decision. The Court therefore
rejects defendants’ argument that the time charges are improperly overbroad. The
defendants also object to time charges they describe as redundant, but defense counsels’
misconduct was so serious that it legitimately required the efforts of three attorneys and a
Memorandum Decision & Order – page 3

paralegal to counteract – it was necessity, not redundancy, that led to the time charges at
issue here.
Although the Court is awarding fees under Rule 37, the Ninth Circuit has
nevertheless held that because the sanctions were related to an inmate’s § 1983 action,
the fee award is limited by the Prison Litigation Reform Act (PLRA). Webb v. Ada
County, 285 F.3d 829 (9th Cir. 2002) (affirming application of PLRA cap on attorney fee
award for contempt and discovery sanctions in prisoner’s § 1983 case). The PLRA puts a
cap on the hourly rates of 150% of the hourly rate established for payment of courtappointed counsel. See 42 U.S.C. § 1997e(b)(3). The rate for court-appointed attorneys
is currently $127.00 per hour, as agreed by both sides here. Thus, the applicable PLRA
rate would be $190.50 per hour.
Using that hourly rate, an award of attorney fees in this case of $23,926.80 would
be consistent with the PLRA.
Multiplier
Bown asks the Court to use a “multiplier” that would calculate fees based on the
full market rates for their fees. This would add about $16,000 to the attorney fee award,
bringing it roughly to $39,000.
A fee applicant bears the burden of proving that a fee enhancement is necessary,
and must produce “specific evidence” supporting the award. Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 553 (2010). In adjusting an award, however, the district court must
focus on the Kerr factors “that are not already subsumed in the initial lodestar
calculation.” Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir.1996) opinion
Memorandum Decision & Order – page 4

amended on denial of reh'g, 108 F.3d 981 (9th Cir.1997). Factors one through four and
six are considered subsumed in the lodestar calculation. Id. at 364 n. 9. Those Kerr
factors determined not subsumed in the lodestar calculation therefore include:
(5) the customary fee, . . . (7) time limitations imposed by the client or
the circumstances, (8) the amount involved and the results obtained, (9)
the experience, reputation, and ability of the attorneys, (10) the
“undesirability” of the case, (11) the nature and length of the professional
relationship with the client, and (12) awards in similar cases.
Id.; Kerr, 526 F.2d at 70. “Where a fee award is multiplied upward to account for factors
not subsumed in the lodestar calculation, it is still ‘based on’ the initial lodestar fee rate;
the fee is increased from that base point to ensure reasonable compensation of counsel in
those very narrow circumstances when the lodestar undervalues counsel.” Kelly v.
Wengler, 7 F.Supp3d 1069, 1083 (D.Id. 2014).
In this case, the PLRA rates significantly undervalue the work of Bown’s counsel.
The PLRA rates are far below market rates in this region for this type of work based on
the Court’s long experience in evaluating fee petitions. That provides a strong incentive
for discovery abuses because any eventual fee award will simply be a “cost of doing
business” that can easily be absorbed. Moreover, as the Court pointed out in its decision,
the conduct of defense counsel wasted not only the time and efforts of Bown’s counsel
but also that of the Court.
Of course, not every sanction demands the application of a multiplier. The Webb
case is an example where attorney fees awarded as a discovery abuse sanction were
limited by the PLRA. But the conduct here – described at length in the Court’s earlier
decision – was egregious enough to warrant a multiplier.
Memorandum Decision & Order – page 5

The Court therefore finds that the PLRA hourly rate significantly undervalues the
time of Bown’s counsel. Accordingly, a multiplier must be applied to bring those hourly
rates more in line with fair market rates. The table below demonstrates how that can be
accomplished:

Attorney

Hours

PLRA Rate

Multiplier

40.9

Market
Rate
$350/hr

John
Robinson
Timothy
Miller
Elisa
Massoth
Total
Attorney
Fee Award
with
Multiplier

1.8

Multiplier
Rate
$342/hr

Total
Award
$13,987.80

$190.50/hr

40.7

$350/hr

$190.50/hr

1.8

$342/hr

$13,919.40

44

$275/hr

$190.50/hr

1.4

$266/hr

$11,704.00
$39,611.20

Paralegal Rate
The Court agrees with defendants that the $100 per hour rate for paralegal services
is too high and that the appropriate rate would be $65 per hour. That brings the award for
paralegal services down to $1,261.00.
Costs
The Court rejects defendants’ objections to the cost bill, and will award costs in
the sum of $2,627.40. This includes the corrected amount for air travel submitted by
Timothy Miller. See Miller Declaration (Dkt. No. 99-1).
Conclusion
The Court will therefore award attorney fees of $39,611.20, paralegal fees of
$1,261.00, and costs in the sum of $2,627.40. The total award is therefore $43,499.60.
Memorandum Decision & Order – page 6

ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for attorney
fees and costs (docket no. 96) is GRANTED, and that plaintiff be awarded costs and
attorney fees from defendants as follows: Attorney fees of $39,611.20, paralegal fees of
$1,261.00, costs of $2,627.40, for a total award of $43,499.60.

DATED: May 19, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 7