McCormack v. Hiedeman

Filing 102

MEMORANDUM DECISION AND ORDER granting in part and denying in part 93 Motion for Attorney Fees. The Motion is GRANTED as Plaintiffs are awarded $376, 208.00 in attorneys fees. The Motion is DENIED to the extent it seeks additional sums. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JENNIE LINN MCCORMACK, on
behalf of herself and all others similarly
situated, and in the interests of the
general public,

Case No. 4:11-cv-00433-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,

and
RICHARD HEARN, M.D., on behalf of
himself and his patients seeking medical
abortions for health reasons prior to fetal
viability,

Plaintiff-in-Intervention

v.
STEPHEN F. HERZOG, Bannock
County Prosecuting Attorney,
Defendant.

INTRODUCTION
Before the Court is Jennie McCormack’s and Richard Hearn’s Motion for
Attorneys’ Fees pursuant to 42 U.S.C. § 1988. The matters are fully briefed and the Court
is familiar with the record. For the following reasons the Court will grant the motion in

MEMORANDUM DECISION AND ORDER - 1

part, and deny it in part. More specifically the Court will award $376,208.00, rather than
the $407,220.50 Plaintiffs requested in this motion.
BACKGROUND
On May 2, 2013, the Court entered final judgment in favor of Plaintiffs,
McCormack and Hearn. Final Judgment and Permanent Injunction, Dkt. 87. The Court
declared Idaho Code § 18-606, in conjunction with § 18-608(1) or § 18-608(2); and § 18505, in conjunction with § 18-507 or § 18-508, as facially unconstitutional. Id. The court
also permanently enjoined Herzog or any other Bannock County Prosecuting Attorneys
from enforcing or initiating prosecuting under these unconstitutional statutory provisions.
Id. Plaintiffs then filed this motion asking for an attorneys’ fees award under 42 U.S.C. §
1988(b). Pl.’s Br., Dkt. 93.
LEGAL STANDARD
Under the traditional American rule every party bears its own cost of litigation.
However, an exception is created in § 1988 “to ensure effective access to the judicial
process for persons with civil rights grievances.” Hensley v. Eckhart, 461 U.S. 424, 429,
103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). That statute provides for attorney fees in “any
action or proceeding to enforce a provision of [section 1983].” 42 U.S.C. § 1988(b).
Under the statute “a prevailing plaintiff should ordinarily recover an attorney's fee unless
special circumstances would render such an award unjust. Mendez v. County of San
Bernardino, 540 F.3d 1109, 1124 (9th Cir. 2008). Awarding attorney fees in these cases

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is “the rule rather than the exception.” American Broadcasting Companies, Inc. v. Miller,
550 F.3d 786, 787 (9th Cir. 2008).
Having decided that plaintiffs are entitled to a fee award under § 1988(b), the
Court must assess the amount of fees to award. This determination is done through a twostep “hybrid approach.” Lyttle v. Carl, 382 F.3d 978, 988 (9th Cir. 2004). First, the Court
must calculate the “lodestar figure” by multiplying the number of hours reasonably spent
on the litigation by a reasonable hourly rate. See, e.g., Fischer v. SJB–P.D. Inc., 214 F.3d
1115, 1119 (9th Cir. 2000). Second, the Court must decide whether to enhance or reduce
the lodestar figure based on several factors—known as the Kerr factors—to the extent
those factors are not already subsumed in the initial lodestar calculation. Id. The relevant
Kerr factors are: (1) time limitations imposed by the client or the circumstances; (2) the
amount involved and the results obtained, (3) the experience, reputation, and ability of
the attorneys, (4) the “undesirability” of the case, (5) the nature and length of the
professional relationship with the client, and (6) awards in similar cases. See Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).

ANALYSIS
Herzog concedes that McCormack is the prevailing party under § 1988. Def.’s
Resp. Br.¶ 7, Dkt. 95. Herzog also agrees that no special circumstances exist in this case,
and concedes that the court should grant attorneys’ fees. Id. Therefore, the Court must (1)
determine the reasonable amount of attorney’s fees and expenses using a lodestar

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calculation and (2) determine whether exceptional circumstances warrant modifying the
lodestar amount.
1. Lodestar Amount
The defendant raises concerns regarding both steps of the lodestar calculation –
the number of hours billed and the overall reasonableness of the amount claimed.
A. Reasonable Billing Hours
A Court must determine if the hours billed were “excessive, redundant, or
otherwise unnecessary.” Hensley, 461 U.S. at 434. However, courts are tasked to consider
the reasonableness of the documented hours without resort to blanket measures such as
“an across-the-board reduction or rejection of all hours.” Mendez, 540 F.3d at 1129.
The defendant does not claim that the overall hours claimed by Plaintiffs are
unreasonable. Instead, the defendant alleges that individual billing items do not fall
within the reasonable attorneys’ fees under § 1988. The defendant claims that it is
unreasonable for the attorneys to include in their fees (1) the hours billed for tasks
completed for the state court criminal proceedings; (2) the hours billed for preparing a
motion for continuance; and (3) the hours billed for non-compensable tasks. Def.’s Resp.
¶¶ 7, 9-10, Dkt. 95.
Plaintiffs contend that the criminal proceedings were a “condition precedent” to
the § 1983 constitutional rights claim. Pl.’s Reply Br. ¶¶ 5-8, Dkt. 93-1. Because of this,
Plaintiffs have requested attorneys’ fees for the criminal proceedings. Id. In contrast, the
defendant states that the attorney fees associated with McCormack’s representation in the

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state court criminal proceeding should be denied because the criminal proceeding is
completely separate, or “ancillary,” to the § 1983 claim. Def.’s Resp. ¶ 7, Dkt. 95.
Therefore, the defendant argues that the 29.5 hours billed by Attorney Hearn and 36.6
hours billed by Attorney Ingelstrom in the Detailed Transaction List for preparation and
litigation of the criminal proceedings should be removed from the recoverable attorneys’
fees. Id.
Under the plain language of the statute, a party may recovery attorney’s fees “[i]n
any action or proceeding to enforce a provision of section…1983.” 42 U.S.C. § 1988(b).
It is clear from the record that the criminal proceedings were not related to an action to
enforce a provision of § 1983, rather they were meant to defend McCormack from
criminal charges filed against her under Idaho statutory law.
Section 1983 is an independent means for relief for any unconstitutional
deprivation of individual rights, and a plaintiff may go directly to a court and assert a
claim under the provision. 42 U.S.C. Sect 1983; Webb v. Board of Education, 471 U.S.
234, 241 (1985). Because a § 1983 claim can be brought at any time, there is no
condition precedent to filing a claim. See Webb, 471 U.S. at 241. Because the criminal
proceedings were ancillary, and not a condition precedent, Plaintiffs cannot recover
attorneys’ fees for work done on the criminal proceedings. Therefore, the 29.5 hours
billed to Hearn and the 36.6 hours billed to Ingelstrom for the criminal proceedings will
not be recovered as attorneys’ fees under § 1988. Detailed Transaction List ¶¶ 1, 8-9,
Dkt. 93-2.

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Additionally, Plaintiffs claim 16.5 hours billed between February 20 and February
23 for Hearn’s research and preparation of a motion for continuance. Detailed
Transaction List ¶ 13, Dkt. 93-2. As the defendant correctly points out, Plaintiffs’
attorneys never filed a motion for continuance. Def.’s Resp. ¶ 10, Dkt. 95. However,
Plaintiffs in their reply brief clarifies the hours relating to the motion for continuance
were incorrectly labeled. Pl.’s Reply ¶ 2, Dkt. 98. The plaintiff asserts that the 16.5 hours
were actually spent in preparation of a motion to intervene. Id. Because Plaintiffs filed a
motion to intervene on February 23, 2012, and the billing statement shows no other hours
billed for the motion to intervene, the Court will calculate the 16.5 hours into the fees
Plaintiffs can recover. Motion to Intervene, Dkt. 45; Detailed Transaction List ¶ 13, Dkt.
93-2.
Finally, the defendant claims that the billed attorney hours should be reduced for
generally non-compensable services. Def.’s Resp. ¶¶ 9-10, Dkt. 95. The defendant claims
that (1) Hill’s hours billed should be reduced by 19.7 for time attributed to
clerical/administrative duties, and (2) Hearn’s hours billed should be reduced by five
hours for time attributed to press contacts. Id. Notably, the plaintiff did not respond to
these claims in the reply brief.
The Supreme Court has excluded the recovery of clerical and administrative tasks
performed by both paralegals and attorneys. See Missouri v. Jenkins, 491 U.S. 274, 28889 (1989); see also Presault v. U.S., 52 fed. Cl. 667, 681(2002). Because the plaintiff has
failed to show that the 16.5 hours Hill billed are not clerical or administrative, the Court

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will not allow recovery for these hours. Plaintiffs calculated Hill’s billable hours as 26.9,
which will be reduced by 16.5. Therefore, Plaintiffs will recover 7.2 total billable hours
for Hill.
Although the defendant argues that press contact fees are not recoverable, District
Courts within the Ninth Circuit have allowed the recovery of fees for press conferences.
See U.S. v. City and County of San Francisco, 748 F. Supp. 1416, 1423 (N.D. Cal. 1990)
(the Court allowed recovery for press conferences meant to advise class member of
events); See also Pollar v. Judson Steel Corp., 1985 WL 312, at *2 (N.D. Cal. May 21,
1985) (the Court found that plaintiffs can recover for the preparation for press
conferences to publicize litigation to class members).
In these prior district court cases, press conference fees were only recoverable
when used to notify potential class members. Id. In this case Plaintiffs’ Motion to Certify
Class was denied, meaning there was no reason to hold a press conference to provide
notice to potential class members. Order, Dkt. 43. Additionally, the Detailed Transaction
List does not state with particularity the reason for the press contacts. Because the
plaintiff failed to respond to the defendant’s arguments for the hours billed for press
contacts, and there is no additional evidence that Plaintiffs would be able to recover, the
Court will reduce Hearn’s compensable hours by five.
B. Reasonable Per Hour Billing Rate
To determine a reasonable hourly rate, the district court looks to hourly rates
prevailing in the relevant legal community. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th

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Cir.2011) (per curiam). The “relevant legal community” is generally the forum in which
the district court sits. Mendenhall v. NTSB, 213 F.3d 464, 471 (9th Cir.2000). The
reasonable rate is measured against the objective scale of “similar services by lawyers of
reasonably comparable skill, experience, and reputation.” Stevedoring Services of Am.,
Inc. v. Dir., Office of Workers Comp. Programs, 445 F. App'x 912, 913 (9th Cir.2011)
(citation omitted).
The parties and the Court agree that the relevant community is Pocatello, where
the original complaint was filed and prosecuted. Of the eight attorneys and assistants used
in this case, the Defendant only alleges that Hearn’s billing rate is not reasonable.
In support of the $350 per hour billing rate used to calculate Hearn’s total fees,
Plaintiffs submitted two affidavits from attorneys licensed to practice in the Pocatello
area. Gary Cooper, a practitioner for thirty eight years, concluded that the reasonable
hourly rates for partners in Southeast Idaho “for cases of similar complexity” would be
between $300 and $350 per hour. Cooper Aff. ¶ 3, Dkt. 93-3. Michael Gaffeny, who has
practiced law in Idaho for more than twenty seven years, also concluded that the hourly
rate would be between $300 and $350. Gaffeny Aff. ¶ 4, Dkt. 93-4.
Although the Defendant makes an argument as to the experience of the other two
partners—both of whom received $300 per hour—the Defendant has not made an
argument that attorneys who work in cases with similar complexity would not receive an
amount between $300 and $350 per hour. The Defendant is merely arguing that Hearn
should receive a billing rate at the low end of the reasonable billing hours range for the

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Pocatello area to match the rate billed for the other two partners working on the case.
Def.’s Resp. ¶¶ 8-9, Dkt. 95.
In contrast to the other two partners, Hearn was the lead attorney on the case, and
logged over four times as many hours as the other two partners combined. Detailed
Transactions List, Dkt. 93-2. Because Hearn dealt with more of the complexities of the
case, the court finds that an award of $350 per hour is reasonable under these
circumstances.
Plaintiffs correctly demonstrated that Hearn’s hourly rate was incorrectly
calculated at $195 per hour from February 4, 2013, to May 15, 2013. Detailed
Transaction List ¶¶ 17-18, Dkt. 93-2. Accordingly, the 32.6 hours Hearn incorrectly
billed at $195 per hour will be billed at $350 per hour.
C. Lodestar Calculations
Based on the previous analysis the Court has included in the graph below the total
amount recoverable by each attorney and assistant involved in preparing Plaintiffs’ case.
ATTORNEY or
ASSISTANT
John B. Ingelstrom

HOURLY RATE

TOTAL FEES

$ 300

NUMBER OF
HOURS
163.2

Brett R. Cahoon

$ 200

7.2

$1,440.00

Scott J. Smith

$ 300

31.4

$9,420.00

Jonathan M. Volyn

$ 250

85.9

$21,475.00

Ferrell Ryan

$ 200

14.8

$2,960.00

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$48,960.00

Bonnie K. Hill

$ 90

7.2

$648.00

Richard A. Hearn

$ 350

800.3

$280,105.00

Jack Van
Valkenburg
TOTAL

$ 250

44.8

$11,200.00
$376, 208.00

2. Exceptional Circumstances- the Kerr Factors
“The lodestar amount is presumptively the reasonable fee amount, and thus a
multiplier may be used to adjust the lodestar amount upward or downward only in ‘rare’
and ‘exceptional’ cases.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045
(9th Cir.2000). An adjustment to the lodestar amount must be supported by both
‘specific evidence’ on the record and detailed findings. Id. This is not a rare or
exceptional case where the lodestar amount is unreasonably low or high based on an
evaluation of the length and requirements of the proceedings. The Court will therefore
award Plaintiffs' counsel the sum of $376,208.00 in attorneys' fees under 42 U.S.C. §
1988(b).
ORDER
IT IS ORDERED:
Plaintiffs’ Motion for Attorneys’ Fees (Dkt. 93) is GRANTED in part and
DENIED in part. The Motion is GRANTED as Plaintiffs are awarded $376, 208.00 in
attorneys’ fees. The Motion is DENIED to the extent it seeks additional sums.

MEMORANDUM DECISION AND ORDER - 10

DATED: August 16, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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