Animal Legal Defense Fund et al v. Otter et al

Filing 132

MEMORANDUM DECISION AND ORDER - IT IS ORDERED THAT Plaintiffs Motion for Attorneys Fees and Costs (Dkt. 117 ), as corrected (Dkt. 118 -1), is GRANTED to the extent Plaintiffs are awarded $249,875.08 in fees, expenses, and costs. The motion is DENIED to the extent Plaintiffs request any additional amounts. 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANIMAL LEGAL DEFENSE FUND, et
al.,
Case No. 14-cv-00104-BLW
Plaintiffs,
MEMORANDUM DECISION AND
ORDER

vs.
C.L. “BUTCH” OTTER, in his official
capacity as Governor of Idaho;
LAWRENCE WASDEN, in his official
capacity as Attorney General of Idaho;
Defendants.

INTRODUCTION
Before the Court is Plaintiffs’ Motion for Attorneys’ Fees and Costs (Dkt. 117).
The motion is fully briefed and at issue. Plaintiffs seek attorneys’ fees of $255,398.38 1
and $3,919.62 in expenses. Defendants contend that the fee award should not exceed
$182,352.43, and the expense award should not exceed $3,519.62. The Court has
determined that oral arguments will not significantly assist the decisional process and will
therefore consider the matters without a hearing. For the reasons explained below, the
Court will award Plaintiffs a total of $249,875.08.

1

This amount includes the additional $4,025 requested in attorneys’ fees incurred in preparing the reply
brief in support of the fee motion. See Reply Br., Dkt. 131, at 10. See also Errata, Dkt. 118, and
Corrected Motion for Attorneys’ Fees and Costs, Dkt. 118-1 (correcting typographical errors).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
In 2012, Mercy for Animals, a Los Angeles-based animal rights’ group, released a
video of workers abusing cows at the Bettencourt Dairies’ Dry Creek Dairy in Hansen,
Idaho. Mercy for Animals secretly captured the abuse while conducting an undercover
investigation of the dairy. Naerebout Aff. ¶ 7, Dkt. 16-2. In response to the video, the
Idaho Dairymen’s Association wrote and sponsored Idaho Code § 18-7042, which was
passed by the Idaho Legislature and signed by Governor Otter on February 28, 2014.
Section 18-7042 created a new crime, “interference with agricultural production.” In
essence, it criminalized undercover investigations and videography at agricultural
production facilities.
The Animal Legal Defense Fund, along with other organizations and individuals
(collectively “ALDF”) challenged Section 18-7042 as unconstitutional for infringing
upon freedom of speech, freedom of the press, and the Equal Protection Clause. Further,
ALDF claimed that the statute was preempted by a number of federal laws.
In September 2014, the Court denied the State’s motion to dismiss the claims
involving misrepresentation and the audiovisual recording provisions of Section 18-7042,
but granted the State’s motion to dismiss the challenge to the “physical damage or
injury” provision of the statute. (Dkt. 68). Later, the Court granted summary judgment
in Plaintiffs’ favor on the First Amendment and Equal Protection Clause claims. (Dkt.
74-1). The Court applied strict scrutiny to the misrepresentation and audiovisual
provisions of the statute and found that certain provisions of Section 18-7042 violate the
First Amendment right of free speech. (Dkt. 101). The Court further concluded that the
MEMORANDUM DECISION AND ORDER - 2

statute violates the Equal Protection Clause, and entered a final judgment permanently
enjoining defendants from enforcing Section 18-7042(1)(a) through (d). (Dkt. 116).
ANALYSIS
1.

Plaintiffs’ Entitlement to Fees
Prevailing parties in federal civil rights claims may be awarded reasonable

attorneys’ fees under 42 U.S.C. § 1988(b). A party prevails if it succeeds “on any
significant issue in litigation which achieves some of the benefit the part[y] sought in
bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In a “prevailing party”
analysis, the touchstone is whether there was a “material alteration of the legal
relationship of the parties.” Texas State Teachers Assn. v. Garland Independent School
Dist., 489 U.S. 782, 792–93 (1989). The legal relationship between the parties is altered
when a party obtains an enforceable judgment or achieves “comparable relief through a
consent decree or settlement.” Farrar v. Hobby, 506 U.S. 103, 111 (1992).
Plaintiffs prevailed here. As noted above, the Court found that Sections 187041(1)(a) through (d) were unconstitutional and enjoined the defendants from enforcing
them. Further, the Court is not persuaded by Defendants’ argument to exclude fees
related to work done on the preemption claim. While Defendants are correct that fee
awards should not be granted for work performed on claims unrelated to the grant of
relief, the “test is whether relief sought on the unsuccessful claim is intended to remedy a
course of conduct entirely distinct and separate from the course of conduct that gave rise
to the injury on which the relief granted is premised.” Thorne v. City of El Segundo, 802
F.2d 1131, 1441 (9th Cir. 1986).
MEMORANDUM DECISION AND ORDER - 3

Here, the preemption claim did not fail, but was mooted when Plaintiffs were
granted an injunction based on their First and Fourteenth Amendment claims. See Dkt.
116. Additionally, the preemption claim sought to remedy the same course of conduct as
the First and Fourteenth Amendment claims, via the same remedy—injunctive relief to
prevent the defendant from enforcing the statute. Therefore, Plaintiffs are entitled to fees
for work done on both the successful claims and the mooted claims.
2.

Reasonableness of Claimed Fees
After establishing that a plaintiff is entitled to attorneys’ fees, the Court must

calculate a reasonable fee award. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Generally, the “lodestar figure,” which multiplies the number of hours reasonably
expended on the litigation by a reasonable hourly rate, determines the amount of the
award. Id. “There is a strong presumption that the lodestar figure represents a reasonable
fee. Only in rare instances should the lodestar figure be adjusted on the basis of other
considerations.” Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996).
However, the Court may adjust the lodestar figure based upon the factors set forth
in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425. U.S.
951 (1976), 2 that have not been subsumed in the lodestar calculation. Morales, 96 F.3d at
363-64. Additionally, in civil rights litigation, “the degree of the plaintiff's overall
2

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, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations
imposed by the client or 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 processional relationship with the client, and (12) awards in similar cases. Kerr, 526
F.2d at 70. Factors one through five are subsumed in the lodestar calculation. See Morales v. City of San
Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).

MEMORANDUM DECISION AND ORDER - 4

success goes to the reasonableness” of a fee award.” Farrar v. Hobby, 506 U.S. 103
(1992) (citing Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S.
782, 793 (1989). Here, ALDF is seeking compensation for 980.04 hours billed at various
rates to produce a lodestar figure of $279,303.75. Pl. Brief (Dkt. 118-2) at 12. In
exercising billing judgment, however, ALDF made an across-the-board, 10% reduction,
reducing the claimed hours to 980.04 and the lodestar figure to $251,373.38. Id. at 13;
Strugar Decl. (Dkt. 117-2) ¶ 14.
A.

Hourly Rate

To determine whether an hourly rate is reasonable, the district court looks to
hourly rates prevailing in the relevant legal community for similar work performed by
attorneys of comparable skill, experience, and reputation. Ingram v. Oroudjian, 647 F.3d
925, 928 (9th Cir. 2011) (per curiam). Here, ALDF claims rates between $175 and $400.
Defendants have not objected to the rates charged, and ALDF has adequately supported
its rates. The rates claimed are therefore reasonable.
B.

Hours Reasonably Expended

Under § 1988, prevailing parties may only be compensated for those hours of
work that were “reasonably expended” on the litigation. See Hensley v. Eckerhart, 461
U.S. 424, 434 (1983). The moving party bears the burden of establishing the hours
claimed and must carry this burden by submitting adequate documentation of those
hours. Id. at 437. Claimed hours “may be reduced by the court where documentation of
the hours is inadequate, if the case was overstaffed and hours are duplicated, [or] if the

MEMORANDUM DECISION AND ORDER - 5

hours expended are deemed excessive or otherwise unnecessary.” Chalmers v. City of Los
Angeles, 796 F.2d 1205, 2010 (9th Cir. 1986).
But the Court’s discretion to reduce claimed hours is not unbounded, nor does it
provide an opportunity for second-guessing when counsel exercises sound billing
judgment. “By and large, the court should defer to the winning lawyer’s professional
judgment as to how much time he was required to spend on the case; after all, he won,
and might not have, had he been more of a slacker.” Moreno v. City of Sacramento, 534
F.3d 1106, 1112 (9th Cir. 2008).
As noted above, Plaintiffs have submitted evidence that nine attorneys and one
paralegal billed 980.04 hours to this case (which accounts for some writeoffs), which
Attorney Strugar reduced by 10% across the board, “in an exercise of billing judgment.”
See Strugar Dec. (Dkt. 117-2) ¶¶ 14, 15.
Defendants object to the reasonableness of the hours claimed on several bases.
First, Defendants generally contend that the hours billed are “grossly excessive.”
Response Br. (Dkt. 127) at 2. Second, Defendants object to time spent on specific
components of the litigation – such as preparing the complaint, preparing or defending
dispositive motions, and preparing for and engaging in oral argument. Response Br., Dkt.
127, at 9-17. The basic thrust of these more specific arguments is that Plaintiffs’ counsel
spent too much time on these tasks, or duplicated effort.
The Court has reviewed the billing records, the associated declarations, and the
arguments advanced in the briefs. After having done so, the Court is simply not
persuaded that it should further reduce the attorney billings that have been submitted. As
MEMORANDUM DECISION AND ORDER - 6

noted above, courts typically defer to the winning lawyer’s professional judgment as to
how much time was required. Further, the Court is not persuaded that this case was overlawyered in terms of the number of attorneys assigned to the case. As the Ninth Circuit
has observed, “participation of more than one attorney does not necessarily amount to
unnecessary duplication of effort.” Democratic Party of Wash. v. Reed, 388 F.3d 1281,
1286 (9th Cir. 2004). Rather, the salient question is not whether an attorney is “essential”
to a task, but whether the hours expended by additional attorneys are reasonable
considering the specific facts of the case. See id. at 1286-87. In this case, the Court
concludes that the number of attorneys assigned to the case, as well as the hours billed,
were reasonable considering the novelty of the legal issues and the magnitude of the
hearings in this case.
In addition to objections to work performed by the attorneys, Defendant contends
that work performed by paralegal Starr Shepard was actually clerical work, and must
therefore be excluded. On this point, Defendants have the better argument. In fact, it
does appear that the time Ms. Shepard billed to this case was dedicated to clerical work.
Specifically, Defendants point to time billed for tasks such as printing emails and forms,
attending a press conference, copying, processing documents, filing documents, printing,
entering expense information, filling out reimbursement requests, and so on. See Ex. 7 to
Smith Dec. (Dkt. 127-8). The Court will therefore eliminate Ms. Shepard’s time and
associated fees ($5,523.30, after the 10% across-the-board reduction) from the fee award.
Thus, the $255,398.38 requested by plaintiff will be reduced to $249,875.08.

MEMORANDUM DECISION AND ORDER - 7

Finally, Defendant contends that the $400 filing fee in this case is not properly
recoverable under § 1988, but is instead a “cost” under 28 U.S.C. § 1920. Although
Defendants does not elaborate on this argument, it appears that it is objecting to the fact
that Plaintiff did not file a separate bill of costs, as opposed to requesting the $400 within
the fee motion. In this case, the Court will allow the $400 filing fee because: (1) the
amount is relatively minimal and comprises a single line item; (2) Plaintiffs requested the
$400 filing fee within the time frame for filing a bill of costs; (3) the fee motion was
partly based on 28 U.S.C. § 1920; and (4) Defendants do not object, substantively, to
Plaintiffs’ recovery of the $400 filing fee.
ORDER
IT IS ORDERED THAT Plaintiffs’ Motion for Attorneys’ Fees and Costs (Dkt.
117), as corrected (Dkt. 118-1), is GRANTED to the extent Plaintiffs are awarded
$249,875.08 in fees, expenses, and costs. The motion is DENIED to the extent Plaintiffs
request any additional amounts.

DATED: May 18, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 8