Newman v. Payette, The City of et al
Filing
53
MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED: 1) Plaintiffs Motion for Attorneys Fees and Costs (Dkt. 44 ) is GRANTED IN PART AND DENIED IN PART. 2) The Clerk is directed to tax costs (Dkt. 51 ) in the amount of $420.00. Signed by Judge Candy W. Dale. (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
MONICA NEWMAN, individually
and on behalf of all similarly
situated; MATTHEW KEITH
DOUGLAS, individually and on
behalf of all similarly situated; and
RUBY JUDINE MALMAN,
individually and on behalf of all
similarly situated,
Case No. 1:15-cv-00145-CWD
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
CITY OF PAYETTE, an Idaho
municipal corporation; CITY OF
FRUITLAND, an Idaho municipal
corporation,
Defendants.
INTRODUCTION
Before the Court is Plaintiffs’ motion for an award of attorney fees pursuant to 42
U.S.C. § 1988, Plaintiffs’ bill of costs, and Defendants’ opposition to the same. Plaintiffs
seek a total of $17,523.75 in attorney fees, which includes time spent drafting the reply
brief. (Dkt. 50.) Plaintiffs seek also an award of costs in the amount of $1,341.90. (Dkt.
MEMORANDUM DECISION AND ORDER - 1
43, 51.) Of these costs, $921.90 are discretionary costs, while $420.00 are claimed
pursuant to 28 U.S.C. § 1920 and enumerated on the Plaintiffs’ bill of costs. The parties
have fully briefed the motion and the matter is ripe for the Court’s consideration.
Having fully reviewed the record herein, the Court finds the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest
of avoiding delay, and because the Court conclusively finds the decisional process would
not be significantly aided by oral argument, the motion will be decided on the record
before the Court. Dist. Idaho L. Rule 7.1. For the reasons explained, the Court will grant
the motion in part.
BACKGROUND
Plaintiffs are dog owners who sought retrospective and prospective injunctive
relief, on behalf of themselves and all those similarly situated, against the cities of
Fruitland and Payette from enforcement of the cities’ respective pit bull ordinances. The
Court permitted a preliminary motion for partial summary judgment limited to the due
process claims asserted in Sections X and XIII of the Second Amended Complaint. The
Court determined Plaintiff Douglas was the only plaintiff with standing to pursue his
claims against the City of Payette, because his dog, Ratchet, was subject to seizure by
animal control officers employed by the City of Payette pursuant to the Payette pit bull
ordinance.
The Court concluded the Payette pit bull ordinance, specifically PMC
§§ 6.08.102(C), (D), and (E) requiring seizure or destruction of dogs found to be pit bulls,
violates procedural due process rights. The Court granted Douglas’s motion for partial
MEMORANDUM DECISION AND ORDER - 2
summary judgment with respect to his procedural due process claims in Section X of the
Second Amended Complaint. Douglas’s claims for prospective relief against the city of
Payette under Section X and Sections VIII and IX remained for further litigation, because
he wanted to bring Ratchet home, and there did not appear to be any provision for
Douglas to obtain a dog license for Ratchet under Payette’s dog licensing ordinance.
The Court found lack of standing was fatal to Douglas’s, Malman’s, and
Newman’s claims against the City of Fruitland contained in Sections XI, XII, XIII of the
Second Amended Complaint, and the claims asserted by Malman and Newman against
the City of Payette in Sections VIII, IX, X of the Second Amended Complaint.
The parties sought the assistance of a mediator for the remaining claims against
the City of Payette, which mediation was unsuccessful. Upon moving outside the city
limits of Payette, Douglas lacked standing to pursue his remaining claims and the Court
consequently granted the parties’ stipulation to dismiss. Plaintiffs reserved their right to
file a motion for attorney fees and costs. (Dkt. 41.)
DISCUSSION
1.
Standard for Awarding Fees
Under 42 U.S.C. § 1988, the Court may, in its discretion, grant reasonable attorney
fees as part of the costs to the prevailing party. 42 U.S.C. § 1988(b). The lodestar formula
should be used to determine a reasonable figure for an award of attorney fees. A plaintiff
is considered a prevailing party if it succeeds on any significant issue in litigation that
gives some benefit that the plaintiff sought in bringing the suit. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). To satisfy this requirement, the suit must have produced a material
MEMORANDUM DECISION AND ORDER - 3
alteration of the legal relationship between the parties. Buckhannon Bd. & Care Home,
Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S. 598, 604 (2001). This
alteration may be the result of an enforceable judgment or comparable relief through a
consent decree. Farrar v. Hobby, 506 U.S. 103, 111, (1992). But, the degree of a
plaintiff's success does not affect the eligibility for an award of fees. Texas State
Teachers Ass'n, 489 U.S. 782, 790 (1989).
Once the Court has determined that attorney fees are warranted in a given case, the
Court must then assess whether the amount of fees requested is reasonable. A lodestar
figure is calculated by “multiplying the hours spent on a case by a reasonable hourly rate
of compensation for each attorney involved.” Pennsylvania v. Del. Valley Citizens'
Council for Clean Air, 478 U.S. 546, 563 (1986). The first step the Court must take is to
“determine the presumptive lodestar figure by multiplying the number of hours
reasonably expended on the litigation by the reasonable hourly rate.” Gracie v. Gracie,
217 F.3d 1060, 1070 (9th Cir. 2000) (internal quotation marks and citation omitted). “In
setting a reasonable attorney's fee, the district court should make specific findings as to
the rate and hours it has determined to be reasonable.” Gracie, 217 F.3d at 1070 (quoting
Frank Music Corp. v. Metro–Goldwyn Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989)).
Next, the Court should, where appropriate, “adjust the ‘presumptively reasonable’
lodestar figure based upon the factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d
MEMORANDUM DECISION AND ORDER - 4
67, 69–70 (9th Cir. 1975), 1 that have not been subsumed in the lodestar calculation.” Id.
(internal citation and quotation marks omitted). “A ‘strong presumption’ exists that the
lodestar figure represents a ‘reasonable’ fee, and upward adjustments of the lodestar are
proper only in ‘rare’ and ‘exceptional’ cases.” Jordan v. Multnomah County, 815 F.2d
1258, 1262 (9th Cir. 1987) (quoting Delaware Valley, 478 U.S. at 565).
The controlling test for determining a reasonable hourly rate requires the rate to be
“in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886,
896 n. 11 (1984); Welch v. Metro. Life Ins Co., 480 F.3d 942, 946 (9th Cir. 2007).
“[N]ormally the relevant legal community for determining the prevailing market rates for
attorneys’ fees is the community in which the forum is situated.” Gates v. Deukmejian,
987 F.2d 1392, 1405 (9th Cir. 1993). The relevant community in this case is Boise,
Idaho. LaPeter v. Canada Life Ins. Co. of Am., 2009 WL 1313336 at *2 (D. Idaho May
11, 2009).
2.
Prevailing Party
The Court concludes the parties’ stipulation to dismiss this action once Douglas
moved from the City of Payette does not eviscerate Douglas’s prevailing party status.
Douglas achieved success on the merits of his procedural due process claim asserted in
Section X of the Second Amended Complaint. The Court held Payette Municipal Code
1
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 relationship with the client, and (12) awards in similar cases.
MEMORANDUM DECISION AND ORDER - 5
§§ 6.08.102(C), (D), and (E) were unconstitutional. The Court’s holding constitutes
success on the merits of one of Douglas’s claims and, despite there being no final
judgment entered, the benefit Douglas received related to his civil rights claim. See
Jensen v. City of San Jose, 806 F.2d 899, 901 (9th Cir. 1986) (noting that the appellate
court has upheld the award of attorney fees under Section 1988 when a plaintiff prevailed
on one or more civil rights claims).
Douglas’s inability to obtain a final judgment because his standing was subject to
challenge when he moved outside the city limits is a procedural infirmity that does not
eliminate his prevailing party status. See Mantolete v. Bolger, 791 F.2d 784 (9th
Cir.1986) (awarding fees on appeal where remand to district court did not decide merits
of plaintiff's case but did benefit plaintiff and other handicapped persons by imposing
stricter standards for determining qualifications of handicapped job applicants);
Fitzharris v. Wolff, 702 F.2d 836 (9th Cir.1983) (upholding trial court’s award of fees
where plaintiff’s suit won an order preventing his transfer to a state prison even though
the case was ultimately mooted by plaintiff’s parole). Douglas’s success on the merits of
his Due Process challenge to Payette’s pit bull ordinance is not erased by Payette’s
“success” at having the case dismissed. See Hanrahan v. Hampton, 446 U.S. 754, 759
(1980) (procedural or evidentiary rulings are not matters on which a party could “prevail”
for purposes of shifting fees under section 1988). Payette’s pit bull ordinance remains
unconstitutional as a result of the Court’s decision.
MEMORANDUM DECISION AND ORDER - 6
3.
Reasonableness of the Fee
Plaintiffs contend they obtained excellent results, and argue entitlement to the full
fee request plus an enhancement over and above the $17,523.75 in fees sought for
pursuing the matter. Plaintiffs argue this Court’s recent fee awards in Latta v. Otter, 2015
WL 4623817 (D. Idaho Aug. 3, 2015), and Community House, Inc. v. City of Boise, et.
al., 2014 WL 1247758 (D. Idaho March 25, 2014), support his $375 hourly rate. In Latta
and Community House, this Court found lead counsel’s hourly rate of $400 per hour
reasonable.
Defendants assert several arguments for reducing the fee award. First, Defendants
argue fees cannot be awarded against the City of Fruitland because all claims against
Fruitland were dismissed. Second, Payette argues fees should be segregated, or reduced,
because it should not be responsible for any fees attributable to Plaintiffs’ pursuit of the
matter against Fruitland. Third, Payette argues that, because Plaintiffs’ counsel agreed to
a reduced fee of $150 per hour billed to his clients, the hourly rate claimed of $375 per
hour is excessive. And finally, Payette argues Plaintiffs achieved only limited success.
Payette does not contest the reasonableness of the number of hours spent.
Comparing this case with both Latta and Community House provides a striking
comparison. In both of those cases, the plaintiffs were individuals pursuing vindication of
controversial claims to basic human rights, such as the right to marry for gay and lesbian
couples, and the right of the vulnerable population of homeless persons to be free from
discrimination under the Fair Housing Act. In Community House, the Court commented
on the complexity, length, and breadth of the case, as well as the undesirability of the
MEMORANDUM DECISION AND ORDER - 7
matter given the contingent nature of the case. In Latta, the Court again echoed those
sentiments with regard to the complexity and demanding nature of the litigation. In
neither case did the plaintiffs ask for a fee enhancement, nor did the Court award one.
While certainly not wanting to diminish Plaintiffs’ counsel’s experience, expertise,
and skill in the area of animal rights, the facts of this case do not merit a rate of $375 per
hour, or a fee enhancement. Douglas had his dog taken, and two of the three named
plaintiffs lacked standing to pursue any claims. Although it is heartbreaking to lose a pet,
this is not a case commensurate with the impact upon the plaintiffs in Latta and
Community House as a result of the civil rights violations which occurred there. Although
the area of animal rights is specialized, this case did not require the skills of a highly
competent attorney, as there were examples of similar pit bull ordinances elsewhere that
had been challenged upon the same grounds as here. Nonetheless, the Court recognizes
that not many attorneys would agree to prosecute a case such as this one.
Although the public interest was served here, the Court does not believe the
engagement of a lawyer in this case, no matter how skilled or experienced, commands the
same hourly rate as the attorneys commanded in Latta and Community House. In the
Court’s view, there was nothing involved in the facts or law of this case to allow a lawyer
to bring superior skill or experience to bear to justify a higher hourly rate, either through
more efficient use of time or by more sophisticated understanding or development of
issues. Gillen v. Gates, 847 F.Supp.1475, 1480 (C.D. Cal. 1994) (declining to award the
same hourly rate in a less complex civil rights case as those awarded in a high profile
Fourth Amendment matter resulting in fatalities). The Court is mindful of the rates
MEMORANDUM DECISION AND ORDER - 8
charged by the junior associates in Latta and Community House, who could have handled
this matter. There, the Court found hourly rates of $275 appropriate for counsel with 15
years’ experience, and the Court will apply that rate here.
As for Defendants’ argument that the fee agreement with Plaintiffs dictates the
hourly rate, the Court rejects that premise. Hensley dictates a reasonable fee, not a
contractually agreed to fee. Furthermore, the Court in Hardenbrook v. United Parcel
Service Co., 2014 WL 524048 * 8 (D. Idaho Feb. 7, 2014), found the lodestar factors
justified a fee that was more than the contractual amount based upon the clients’
contingent fee agreement. Accordingly the Court is not bound by the contractually agreed
to rate of $150 per hour.
At the rate of $275 per hour, counsel’s fee request is reduced to $15,633.75 for the
56.85 hours expended. The final question becomes whether further reduction for limited
success is warranted given the claims against Fruitland were dismissed for Plaintiffs’ lack
of standing. Although the Court concluded above that Douglas prevailed, that
determination says “little about whether the expenditure of counsel’s time was reasonable
in relation to the success achieved.” Gates v. Deukmejian, 987 F.2d 1392, 1403 (9th Cir.
1992). Here, Plaintiffs sued both Fruitland and Payette, and succeeded only regarding
Douglas’s claims against Payette. The claims on which Douglas ultimately prevailed
against Payette are based upon a similar statutory scheme as that enacted in Fruitland,
and upon the Court’s review of the fee petition, it cannot parse out the time spent
specifically on the claims against Fruitland versus Payette. However, the Court finds
further reduction in the fees is warranted in this case even though the claims are similar.
MEMORANDUM DECISION AND ORDER - 9
Plaintiffs’ counsel, given his expertise and experience in this area, should have
recognized the obvious standing issue. The Court, in the exercise of its discretion, will
reduce the $15,633.75 in attorney fees by 20% ($3,126.75) to account for the unnecessary
time spent on the issue of standing with respect to the claims against Fruitland. Further,
Fruitland is not responsible to pay any portion of the fee award.
Finally, although the Court concludes Plaintiffs’ counsel proceeded without a full
understanding or assessment of each of Plaintiffs’ standing, the Court is not convinced
the claims were frivolous for the purpose of awarding fees under Section 1988. Given the
similarities between the two municipal codes applicable to pit bulls, the Court’s holding
that Payette Municipal Code §§ 6.08.102(C), (D), and (E) are unconstitutional applies
equally to invalidate any similar provisions in Fruitland’s city code. The Court will
therefore not reduce the fee further, and will award $12,507.00 in attorney fees.
4.
Costs
Plaintiffs filed a bill of costs requesting the $400.00 filing fee and $20 docket fee
allowed pursuant to 28 U.S.C. §§ 1920(1), 1920(5), and 1923. Because Plaintiff Douglas
prevailed, the Clerk is directed to tax costs in the amount of $420.00.
Plaintiffs claimed also discretionary costs for two airline flights to Boise—for the
summary judgment hearing and for the mediation session; the mediation fee; and parking
charges. These costs total $921.90. Payette argues airline fees are not compensable costs
allowed by Dist. Idaho L. Rule 54. Plaintiffs’ request for discretionary costs seeks
reimbursement for items beyond those allowed by 28 U.S.C. § 1920. But, under Section
1988, the prevailing party “may recover as part of the award of attorney’s fees those outMEMORANDUM DECISION AND ORDER - 10
of-pocket expenses that ‘would normally be charged to a fee paying client.’” Dang v.
Cross, 422 F.3d 800, 814 (9th Cir. 2005) (quoting Harris v. Marhoefer, 24 F.3d 16, 19
(9th Cir. 1994)). Such out-of-pocket expenses are recoverable when reasonable. Id.
Payette does not contend that the other costs are not ones that would normally be
charged to a fee-paying client, only that they are not taxable under Rule 54, which
enumerates those costs taxable under 28 U.S.C. § 1920. Airline travel, parking fees, and
the cost of a mediator are, in the Court’s experience, normally charged to a fee-paying
client. Counsel did not incur any unnecessary charges, such as a hotel stay. The Court
therefore finds the discretionary costs claimed of $921.90 are both reasonable and
recoverable.
CONCLUSION
For the reasons stated, the Court concludes Plaintiff Douglas is a prevailing party
against the city of Payette, and entitled to reasonable attorney fees in the amount of
$12,507.00, and discretionary costs in the amount of $921.90. The Clerk is directed to
separately tax costs for the filing fee and docket fees of $420.00.
MEMORANDUM DECISION AND ORDER - 11
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Plaintiffs’ Motion for Attorney’s Fees and Costs (Dkt. 44) is GRANTED
IN PART AND DENIED IN PART.
2)
The Clerk is directed to tax costs (Dkt. 51) in the amount of $420.00.
DATED: April 21, 2016
_________________________
Honorable Candy W. Dale
United States Magistrate Judge
MEMORANDUM DECISION AND ORDER - 12
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