Powell v. Prince George's County Maryland et al.
REPORT AND RECOMMENDATIONS re 33 MOTION for Attorney Fees. Signed by Magistrate Judge Gina L Simms on 9/10/2020. (dg3s, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
James Thomas Powell,
Prince George’s County, Maryland et al.,
Civil Case No. 8:18-cv-3683-TDC
REPORT & RECOMMENDATIONS
This “Report and Recommendations” addresses the “Plaintiff’s Motion for Attorneys’
Fees,” the supplemental pleadings filed related thereto, and all memoranda in support of the same
(ECF Nos. 33, 38, 43), as well as “Bills of Costs” (ECF Nos. 34, 39) filed by Plaintiff James
Thomas Powell (“Plaintiff”).
Pursuant to 28 U.S.C. § 636, and Local Rule 301.5(b), the Honorable Theodore Chuang
referred this matter to me to issue a report and make recommendations. I have reviewed the
abovementioned pleadings and the responses from the Defendant (ECF Nos. 37, 42). I believe that
the issues have been fully briefed, and do not believe that a hearing is necessary. L.R. 105.6. As
set forth more fully below, I ultimately recommend that the Court grant the motion for attorney’s
fees and award $83,968.15 in fees and $6,662.03 in litigation costs, as set forth herein.
FACTUAL AND PROCEDURAL BACKGROUND
This litigation began less than two years ago on November 30, 2018, when Plaintiff filed a
Complaint against Defendants Prince George’s County, Maryland (hereinafter “Defendant
County”) and Detective Ernest Haylock (hereinafter “Haylock”) advancing the following civil
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rights violations: seizure without probable cause, Fourth Amendment violation, 42 U.S.C. § 1983
(Count I); malicious prosecution (Count II); seizure without probable cause, Article 26, Maryland
Declaration of Rights (Count III); abuse of process, Maryland Constitution Article 26 (Count IV);
and malicious abuse of process (Count V). Plaintiff sought compensatory and punitive damages.
(ECF No. 1).
The Complaint described malicious and retaliatory conduct that occurred between
December 2017-September 2018, which Plaintiff asserted was predominantly committed by
Haylock. (ECF No. 1). In 2015, Plaintiff was hired by a bank to manage a foreclosed property
located at 3170 Hill Park Drive in Temple Hills, Maryland. (Id. at ¶¶6-8). The prior property owner
vacated the property in January 2017. (Id. at ¶10). On December 4, 2017, Plaintiff arrived at the
property to inspect it for potential water leaks. (Id. at ¶11). Upon his arrival, he discovered that
“squatters” had entered and occupied the property.(Id.) Plaintiff called the police to report a
trespassing. (Id.) Plaintiff explained to the police that he was the property manager, and someone
was squatting in the property. (Id. at ¶12). Later that evening, the alleged squatter reported a breakin to the property and the police responded. (Id. at ¶14). The alleged squatter told the police that
she had security camera footage of the break-in that showed the Plaintiff breaking the rear window
to enter the property. (Id.) Haylock was the detective assigned to the case. (Id.) The ultimate
outcome of Haylock’s investigation was the arrest and charge of Plaintiff for burglary and
malicious destruction of property. (Id. at ¶36).
On January 29, 2019, Defendants filed an Answer to Plaintiff’s Complaint. Defendants
raised the following affirmative defenses: (1) qualified immunity; (2) expired statute of limitations
of claims; and (3) failure to state a claim upon which punitive damages could be granted. (ECF
No. 8). Between January 30, 2019, and October 3, 2019, the parties engaged in discovery, which
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included the production of documents, interrogatories, and taking ten depositions. (ECF Nos. 9,
18, 23, 25, 29). On July 11, 2019, the parties engaged in an unsuccessful mediation. Eight months
after the Complaint was filed, on August 30, 2019, the parties filed a “Post-Discovery Joint Status
Report,” in which Defendants expressed their intent to file a summary judgment motion. In
addition, the parties stated that although the first mediation was unsuccessful, they were amenable
to engaging in a second settlement conference. (ECF No. 26). On September 19, 2019, the parties
filed their “Third Motion for Extension of Time to Complete Discovery.” (ECF No. 28). On
September 25, 2020, Judge Chuang granted the parties’ motion and extended the discovery
deadline by ninety (90) days. (ECF No. 29).
On October 3, 2019, Defendants filed a “Notice of Acceptance with Offer of Judgment,”
pursuant to Fed. R. Civ. P. 68. (ECF No. 30). The following were the terms:
(1) acceptance of the offer of judgment constitutes the full satisfaction of all claims for
damages against any County employee by Plaintiff related to any alleged acts or
omissions alleged in ECF No.1;
(2) Plaintiff agrees to dismiss County employees’ names as Defendants in this case with
prejudice prior to the Clerk of Court entering judgment against Defendant County;
(3) acceptance and payment of $175,000 constitutes a release, discharge, and
relinquishment of any and all claims against Defendant County and any and all
officials, employees, agency, department, or instrumentality related in any way to them,
and those in privity with them, and including any and all insurers of said individuals or
(4) if Plaintiff declines to accept Rule 68 offer, then the offer of judgment is not and may
not be construed as an admission of liability at any subsequent proceeding in this case
or that Plaintiff has suffered any damage at any subsequent proceeding in this case;
(5) the Rule 68 offer will remain open for fourteen (14) days after service of this offer upon
Plaintiff. If this offer is not accepted in writing within fourteen (14) days, then the offer
is deemed withdrawn; and
(6) upon acceptance and payment, the Plaintiff agrees to file an order of satisfaction,
execute a release and settlement agreement, execute a dismissal with prejudice in favor
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of all beneficiaries of the Rule 68, all of their incurred costs after the date of this offer,
including any applicable attorney’s fees.
(ECF No. 30-1). Plaintiff accepted a judgment of $175,000 against Defendant Prince George’s
County, exclusive of reasonable attorneys’ fees and costs. (ECF No. 30). On October 3, 2019,
Plaintiff filed a “Dismissal of Claims Against Defendant Ernest Haylock.” (ECF No. 31). On
October 4, 2019, the Court dismissed all claims with prejudice against Haylock and entered a
judgment in favor of Plaintiff against Defendant County in the full amount. (ECF No. 32).
MOTION FOR ATTORNEY’S FEES
Under 42 U.S.C. § 1988, in any action to enforce § 1983, the court may allow a prevailing
party to recover reasonable attorney’s fees. 42 U.S.C. § 1988(b). Before deciding whether an award
of attorney's fees is appropriate, a court must determine whether the party seeking fees is a
“prevailing party,” a threshold question for which the Supreme Court has said it will accord a
“generous formulation.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A plaintiff is a prevailing
party for the purpose of an attorney’s fees award if the plaintiff succeeds “on any significant issue
in litigation which achieves some of the benefit [the party] sought in bringing suit.” Id. at 433.
To calculate the amount to be awarded in attorney’s fees, a court must determine what is
reasonable. Hensley, 461 U.S. at 433. To do so, courts engage in a three-step process. First, a court
must calculate the lodestar, “the number of reasonable hours expended times a reasonable rate.”
Randolph v. Powercomm Construction, Inc., 715 Fed. App’x 227, 230 (4th Cir. 2017) (citing
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013)). To determine reasonable hours and rates, the
Fourth Circuit has held that a court’s discretion should be guided by the factors set forth in Johnson
v. Georgia Highway Express Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). See Id. The twelve
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(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly;
(4) the preclusion of 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.
Id. (“Johnson factors”).
Per Randolph, supra, the second step requires a district court to subtract fees for hours
spent on unsuccessful claims unrelated to successful ones. 715 Fed. App’x at 230. In that regard,
if a plaintiff prevails on only some of the claims, “the number of hours may be adjusted
downward.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994).
Third, a court should award “some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff.” Randolph, 715 Fed. App’x at 230 (citing to McAfee,
738 F.3d at 88).
To determine the reasonableness of an attorney’s hourly rate, courts analyze whether the
rate sought is consistent with the rate that prevails in the community for “similar legal services by
lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S.
886, 890 n. 11 (1984). While a court may rely upon affidavits from attorneys opining on the
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reasonableness of requested rates, see, e.g., Poole ex. Rel. Elliott v. Textron, Inc., 192 F.R.D. 494,
509-10 (D. Md. 2000), it is well established that a court may rely upon its knowledge of the
Maryland market. In this district, that “market knowledge” is embedded in “United States District
Court for the District of Maryland: Local Rules, Appendix B, Rules and Guidelines for
Determining Attorneys’ Fees in Certain Cases.” (“the Guidelines”). See Gonzales v. Caron, Case
No. CBD-10-2188, 2011 WL 3886979, at *2 (D. Md. Sept. 2, 2011). The Guidelines, although not
binding, presumptively set forth ranges of reasonable hourly rates based on an attorney’s years of
experience. Gonzales, 2011 WL 3886979, at *2.
The party seeking attorney’s fees bears the burden of establishing the reasonableness of
those fees. Ledo Pizza Sys., Inc. v. Ledo Rest., Inc., Case No. DKC-06-3177, 2012 WL 4324881,
at *6 (D. Md. Sept. 18, 2012). In addition, even if the billing rate is reasonable, the party seeking
fees must “show that the number of hours for which he seeks reimbursement is reasonable and
does not include hours that are excessive, redundant, or otherwise unnecessary.” Travis v. Prime
Lending, Case No. 3:07cv00065, 2018 WL 2397330, at *4 (W.D. Va. June 12, 2008).
An attorney who submits a fee petition must demonstrate billing judgment. Thompson v.
U.S. Dept. of Housing and Urban Development, Case No. MGJ-95-309, 2001 WL 1636517 at *10
(D. Md. 2001). In other words, the petitioning attorney must exclude from “the fee petition hours
that were not reasonably necessary, excessive time entries, and redundant or duplicitous entries.”
Id. (citing to Daly v. Hill, 790 F.2d 1071, 1077 (4th Cir.1986)). In addition, the court “may reduce
the number of hours awarded if the documentation is vague or incomplete.” Costa Group, Inc. v.
Loopnet, Inc., 106 F.Supp.2d 780,788 (D.Md.2000). Therefore, the fee petition must demonstrate
hours that were reasonably expended. Id.
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A defendant who challenges the award requested “bears the burden of explaining [his or
her] objections with sufficient detail and specific reference to the plaintiff’s time records to allow
the court to evaluate those challenges without itself pouring over the time records searching for
unnecessary charges.” Nelson v. A&H Motors, Inc., Civ. No. JKS 12-2288, 2013 WL 388991 at
*3 (D. Md. Jan. 30, 2013)(citation omitted).
Plaintiff’s Request for Attorney’s Fees
A party seeking an award of attorney’s fees must establish entitlement to same by
documenting the hours expended and the corresponding hourly rates. Hensley, 461 U.S. at 437.
In this case, Plaintiff requests fees for 212.09 hours of attorney work multiplied by a rate
of $535 per hour, which equals $113,468.15. (ECF Nos. 38, 43). Plaintiff’s petition and
attachments detail 212.09 hours of work related to:
(a) Case Development - 48.12 hours- $25,744.20
(b) Pleadings – 41.17 hours-$22,025.95
(c) Paper Discovery (Interrogatories and Document Requests) – 28.35 hours-$15,167.25
(d) Depositions – 53.85 hours-$28,809.75
(e) Motions Practice – 2.40 hours-$1,284.00
(f) ADR (Mediation)- 5.25 hours-$2,808.75
(g) Fee Petition Preparation – 32.95 hours-$17,628.25 1
(ECF Nos. 38, 43).
To aid a court in determining the reasonableness of the hours billed, the Guidelines require
the Plaintiff to submit itemized time records broken down by attorney and by litigation phases. See
This number includes reimbursement for an additional 13.95 hours to respond to Defendant County’s opposition to
his fee petition. (ECF No. 43, p. 16).
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the Guidelines, ¶¶1a-1b. Plaintiff complied with the Guidelines, providing: a schedule of costs, a
spreadsheet of fees, and declarations and affidavits of counsel. (ECF Nos. 38-1 & 43-1).
In support of Plaintiff’s attorney’s fees request, he relies upon Perdue v. Kenney A. ex rel.
Winn, 559 U.S. 542 (2010), and Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,
478 U.S. 546 (1996). (See ECF No. 38, p. 9). Plaintiff maintains that the Supreme Court
disapproved of the Johnson factors because “[s]etting attorney’s fees by reference to a series of
sometimes subjective factors placed unlimited discretion in trial judges and produced disparate
results.” Therefore, Plaintiff did not refer to the factors in his fee petition. (ECF No. 38, p. 10, n.1).
In addition, Plaintiff’s counsel contends that he spent majority of his hours on case development
and authoring pleadings 2 in order to gain a thorough understanding of the facts. (ECF No. 38,
As it relates to Plaintiff counsel’s hourly rate, Plaintiff submitted three affidavits in support
of the hourly rate of $535 per hour from attorneys with comparable skill, experience, and
reputation. (ECF No. 38-1). The affidavits state that for a senior attorney, with the same amount
of experience as Plaintiff’s counsel, the hourly rate ranges between $500 - $700 per hour. Plaintiff
avers that his counsel has 41 years of experience, which includes extensive experience in handling
police misconduct and Section 1983 cases. In addition, Plaintiff has tried thirty (30) police
misconduct cases and handled several cases on appeal. Plaintiff’s counsel hourly rates in civil
litigation 3 has ranged from $475 to $550 per hour. (ECF No. 38, pp. 12-15).
Plaintiff authored the following pleadings: (1) the Complaint; (2) three motions for extension of time to complete
discovery; and the Notice of Dismissal. No substantive pleadings were filed in this case. (ECF No. 38-1, p. 14).
3 Plaintiff has appeared before the (1) U.S. District Court of Maryland, (2) D.C. Superior Court, (3) U.S. District Court
of District of Columbia, (4) Fourth Circuit of U.S. Court of Appeals, (5) Prince George’s County Circuit Court, and
(6) Maryland Court of Appeals. (ECF No. 38-1, pp. 2-8).
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Plaintiff argues that although the hourly rate exceeds the rates set forth in the Guidelines,
footnote six of the Guidelines provides that the rates provide practical guidance to lawyers and
judges; however, the market rate may differ from the Guidelines. In addition, an upward
adjustment to the applicable range may be appropriate if the market rates differ from the
Guidelines’ rates. (ECF No. 38, p. 15).
Defendant County argues that Plaintiff’s counsel’s billable hours were “excessive and
unnecessary for a straightforward [probable cause] lawsuit.” (ECF No. 42, p. 5). Defendant County
objects to the hours expended on various billing categories, namely: (a) pre-complaint
consultation; (b) document review; (c) “detailed memorandum of law” review; (d) drafting the
complaint; (e) preparing the fee petition; (f) drafting answers to interrogatories; (g) preparing for
the Haylock deposition; and (h) “digesting” the Haylock deposition. (ECF No. 42, pp. 5-9). (ECF
No. 42, pp. 5-8).
Defendant County also contends that: (a) the hourly rate requested by Plaintiff is
unreasonable, because the legal and factual issues in this case are not complex; (b) Plaintiff failed
to provide case law in support of the notion that a court has allowed an attorney’s rate to exceed
the hourly rate set forth in the Guidelines. Defendant further argues that the presumptive hourly
rate for Plaintiff’s counsel is $400 per hour. (ECF No. 42, pp. 8-9).
Defendant maintains that Plaintiff failed to exercise proper billing judgment. (ECF No. 42,
p.5). Defendant argues that 60.7 hours of hours billed are excessive, unnecessary, duplicative, and
vague. (Id.) Ultimately, Defendant asks the Court to reduce the billable hours from 198.84 4 hours.
Defendant’s suggested final fee award is $55,256 (138.14 hours multiplied by $400).
This number did not include hours requested by counsel for responding to Defendant’s opposition. See footnote 1.
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Finally, Defendant did not argue for a downward adjustment beyond the lodestar figure.
(ECF No. 42, p.3).
Plaintiff raises three arguments in his reply to Defendant’s opposition. Plaintiff first argues
that counsel’s hourly rate of $535 is consistent with the prevailing market rates. In support,
Plaintiff provided affidavits from two Baltimore attorneys, one Greenbelt attorney, and his
counsel, all of which stated that the prevailing market rate range for a senior attorney with
extensive experience in civil rights law is $500-$700. Relatedly, Plaintiff maintains that Defendant
concedes that his counsel has extensive experience. (ECF No. 43). Plaintiff contends that the hours
expended on this case were necessary, due to the complexity of the case. Plaintiff avers that the
reductions sought by Defendant County are speculative. (ECF No. 43, pp.1-16). Finally, Plaintiff
maintains that counsel is entitled compensation for replying to Defendant County’s opposition,
because Defendant County disputed counsel’s fees. (ECF No. 43, p.16).
ANALYSIS AND FINDINGS
Plaintiff is a Prevailing Party
As an initial matter, because judgment has been entered in Plaintiff’s favor, he is
indisputably a “prevailing party” entitled to attorney’s fees. Id. at 433 (Plaintiff is a prevailing
party . . . if successful “on any significant issue in litigation which achieves some of the benefit . .
. sought in bringing suit”).
Analysis of the Johnson Factors
Plaintiff contends that the Supreme Court in Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542
(2010), overruled the method set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974). (ECF No. 38, p. 10). In opposition, Defendant contends that the Supreme
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Court did not overrule Johnson in Perdue. In addition, Defendant contends that per Fernandes v.
Montgomery County, Case No. SAG-10-752, 2013 WL 6330705, at *2 (D. Md. Dec. 3, 2013),
Johnson is still applicable. (ECF No. 42, p. 2). This Court agrees with Defendant. Plaintiff’s
reliance on Perdue and Pennsylvania is misplaced, because the Supreme Court did not overrule
the Johnson factors and their applicability. Perdue, 559 U.S. at 550-52. The Fourth Circuit has
adopted the Johnson factors. See, e.g., Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir.1978).
In addition, courts within this district routinely use the Johnson factors. See, e.g., Sergeant v. Acol,
et al., Case No. PWG 15-2233, 2018 WL 276431, *9 (D. Md. Jan. 3, 2018);
Corral v. Montgomery Cnty., 91 F.Supp.3d 702, 712–13 (D. Md. 2015); see also Fernandes,
supra, at *2 (explaining that the “lodestar method [is] an alternative approach for calculating
reasonable fees”). Therefore, this Court will apply the Johnson factors.
Johnson instructs the court to “closely observe the attorney's work product, his preparation,
and general ability before the court.” 488 F.2d at 718-720. At least one district court has found an
attorney’s skills to be a heavily-weighted factor in the lodestar analysis. See Peacock v. Bank of
America Corp. 133 F.Supp. 2d 1322, 1327 (M.D. Fla. 2000) (“skill is evidenced by an attorney’s
initial case assessment, continuing negotiation, and settlement attempts, persuasiveness, and other
fundamental aspects of organization and efficiency”).
As a preliminary matter, I do not find any step-two or step-three Randolph deductions
applicable to this case because Plaintiff accepted a Rule 68 Offer of Judgment.
I have reviewed all of the pleadings and exhibits in this case. I have analyzed all of the
Johnson factors. The well-pled Complaint relates only to one plaintiff. The allegations are
relatively straight-forward. (Johnson factors 2,3).
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Less than one year has elapsed since Plaintiff’s filing of the Complaint and the Notice of
Acceptance of Rule 68 Offer (November 2018 – October 2019). No in-court proceedings occurred;
no substantive motions were filed. A review of Plaintiff’s billing records reflects that during this
period of time: the Complaint was drafted, the parties exchanged discovery; the parties conducted
depositions; some legal research was conducted, and attorney-client communications occurred.
(ECF No. 38-1, pp. 10-17). (Johnson factors 7,8). The matter was staffed with only one attorney.
(Johnson factor 9).
Defendant maintains that Plaintiff’s counsel failed to exercise billing judgment as an
experienced attorney. (ECF No. 42, p. 5). Plaintiff counters that he exercised appropriate billing
judgment because he reduced his hours reflected in the original billing by 22.45 hours. (ECF No.
43, p. 9; See also ECF No. 43-1, pp. 2-16). The majority of the time billed relates to the categories
of case development (48.12 hours); pleadings (41.17 hours); depositions (53.85 hours); and fee
petition preparation (32.95 hours). (ECF No. 38-1, pp. 10-17).
Although Plaintiff reduced his hours, I find that further reductions are warranted. Where
precision is not possible, I recommend reductions as set forth below to achieve “rough justice” by
way of reasonably estimating the fees associated with the initial action. See Christian v. MaternalFetal Med. Assocs. of Md., LLC, 459 Md. 1, 39-40(2018)(quoting Fox v. Vice, 563 U.S. 826 838
(2011))(“It is the duty of a court to accomplish ‘rough justice, not  auditing perfection’ when
determining what attorney’s fees to award under the circumstances.”).
Reasonable Hourly Rate
Plaintiff seeks an hourly attorney’s rate of $535.00. Plaintiff’s counsel was admitted to the
Maryland Bar more than 30 years ago, and, it is generally his practice to bill at rates $475 to $550
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per hour. In support of his request for an above-Guidelines 5 hourly rate, Plaintiff submitted four
affidavits: one from his counsel, two from Baltimore attorneys, James P. Ulwick, Esq. and Andrew
D. Freeman, Esq., and one from a Greenbelt attorney, Timothy F. Maloney, Esq. (See ECF No.
38-1, pp. 47-55).
Plaintiff maintains that the $535 hourly rate, though it exceeds the Guidelines’ hourly rate,
is reasonable because: (a) counsel’s high level of experience in police misconduct cases; (b) a
lower rate would discourage competent lawyers from taking on civil rights cases; and (c) the rate
is consistent with the prevailing market rate for similarly-situated attorneys. (ECF No. 38, pp. 1415 ).
Defendant County counters that $535 hourly rate is unreasonable because the legal and
factual issues in the case are not complex. Defendant relies upon Garcia v. Montgomery County,
Case No. TDC-12-3592, 2018 WL 1441189, at *8 (D.Md. 2018), to advance his argument.
Defendant County contends that the presumptive hourly rate of $400 is reasonable. (ECF No. 42,
First, there is nothing unique, complex or exceptional about this case that merits an upward
adjustment to the Guidelines’ hourly rates. Second, the submitted affidavits do not address how
this specific case was novel, protracted or complicated such that higher hourly rates are
presumptively reasonable. Finally, this Court does not believe that counsel’s customary rates are
an appropriate metric, rather, the Guidelines’ rates are “more representative of a broader range of
fees charged by practitioners appearing in federal court in Maryland.” Kreuze v. VCA Animal
Hosps., Inc., Case No. PJM 17-1169, 2019 WL 2107263, (D. Md. May 14, 2019). The rates
charged in the Guidelines are presumptively reasonable. See Gonzales, 2011 WL 3886979, at *2.
The Guidelines set forth an hourly rate range of $300-$475 for attorneys admitted in the bar for twenty (20) years or
more. See Guidelines, ¶ 3.e.
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However, as the Court previously noted, Plaintiff’s counsel was the sole timekeeper in this
case. Plaintiff’s counsel did not benefit from the assistance from an administrative assistant, a
paralegal, a law clerk, or co-counsel in this case. (ECF No. 38-1, pp. 10-17). In one respect, it is
arguably more efficient to have just one timekeeper. Based on those facts, I find that an upward
adjustment to the Guidelines’ hourly rates is appropriate because in some respects it is less
expensive to allow a senior attorney to bill above the hourly rates than to staff the case.
In sum, the hourly rates sought by Plaintiff’s counsel will be adjusted upward to $535.00
Defendant raises objections to the amount of hours Plaintiff’s counsel expended on: (a)
pre-complaint consultation; (b) document review; (c) “detailed memorandum of law” review; (d)
drafting the complaint; (e) preparing the fee petition; (f) drafting answers to interrogatories; (g)
preparing for the Haylock deposition; and (h) “digesting” the Haylock deposition. (ECF No. 42,
pp. 5-9). Ultimately, the Defendant relies on Johnson factors 1, 2, and 3 to argue that Plaintiff’s
fee petition should be reduced because the legal issue probable cause is simple and not novel,
especially for an attorney with reportedly- extensive experience in civil rights law. Plaintiff
contends that the greater number of hours in the fee petition were necessary to properly develop
the case and pleadings because a considerable amount of time was needed to thoroughly
understand the factual complexity of the case. (ECF No. 43, pp. 4 -7). For the reasons explained
below, this Court will make reductions to the overall hours sought.
Defendant argues that Plaintiff’s counsel’s billing entries related to the pre-complaint
consultation (13.25 hours) and document review with Plaintiff (5 hours) must be adjusted
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downward because the hours are excessive and vague. (ECF No. 42, pp. 5-6). Plaintiff contends
that a pre-complaint consultation was necessary because police misconduct cases must be thorough
and comprehensive. (ECF No. 43, p. 10)(citing to Police Misconduct Law and Litigation, 3rd Ed.
(2018 – 2019)). In addition, Plaintiff avers that there is a list of 24 items that must be included in
a complainant’s interview. As to the document review entry, Plaintiff maintains that he expended
a reasonable amount of time reviewing over 153 pages of relevant documents with his client during
their first substantive interview. (ECF No. 43, pp. 11-12).
Based on the time and labor necessary to investigate this case properly, the Court believes
that the facts of the case would merit Plaintiff’s counsel conducting a detailed pre-complaint
investigation. Gathering information from several third parties occurred including: the bank; Ms.
Nelson, the squatter; the previous owners of the property in question; and the contracts involved
between such parties. However, $25,744.20 in fees for case development appears excessive.
Plaintiff fails to demonstrate why an attorney with his experience would spend more than forty
hours in case development when the legal question was relatively simple: whether Detective
Haylock had probable cause to charge and arrest Plaintiff. Plaintiff expended about 19 hours in
case development prior to the filing of the Complaint.
Thus, this Court finds that hours Plaintiff’s counsel billed for case investigation or
development shall be reduced. Accordingly, I recommend an overall reduction of approximately
Plaintiff contends that he spent majority of his time “authoring pleadings.” Upon review of
the docket sheet in this case, the Court finds that there were no substantive pleadings filed. The
only substantive pleading filed was the Complaint, which Plaintiff spent about 36 hours drafting.
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This Court finds that $19,350.95 is excessive for Plaintiff’s counsel to draft and file a 53 paragraph
Complaint, given his experience.
The Court accepts that the facts in this case are peculiar; however, the facts are not
complicated to explain or understand. With Plaintiff’s counsel’s expertise, he should have been
able to more facilely draft the complaint and link the facts to the corresponding elements of the
claims. The Court finds that Plaintiff’s counsel spent about 15 hours on writing and researching
the legal claims portions of the Complaint when a vast majority of the Complaint includes factual
Although Plaintiff relies on Corral v. Montgomery Cty., supra, and Garcia v. Montgomery
County, supra, to advance his argument, this Court finds that the cases are distinguishable.(ECF
No. 43, p.13). In Garcia, the Court found that 32.4 hours was a reasonable amount of time for
drafting the complaint. Garcia, supra, at 5. In Corral, the court found that 25 hours was reasonable
to draft a complaint. Corral, supra, at 716-17. In Corral and Garcia, the complaints authored by
the attorneys were twice as long as the Complaint written in this case.
Therefore, I recommend an overall reduction of approximately $5,000.
Defendant’s argues that the billing entry related to Plaintiff preparing for Detective
Haylock’s deposition requires a downward adjustment. (ECF No. 42, p. 8). Specifically, Defendant
avers that preparation for the deposition is excessive and duplicative because Plaintiff expended
2.5 hours on reviewing the County’s production of documents that includes Detective Haylock’s
investigative file and personnel records. (ECF No. 42, p. 8).
Defendant’s argument to reduce billable hours in preparation for Detective Haylock’s
deposition is unpersuasive. When Plaintiff’s counsel was preparing for the deposition of Detective
Case 8:18-cv-03683-TDC Document 45 Filed 09/10/20 Page 17 of 20
Haylock, he was a named defendant. Detective Haylock was the officer responsible for criminal
charges being filed against Plaintiff. In addition, Haylock interacted with Plaintiff repeatedly
during the investigation of the criminal charges, met with Mrs. Nelson, and was the officer who
sought the arrest warrant for the Plaintiff. (ECF No. 38, pp. 3-5). His deposition was essential to
the development of Plaintiff’s case. I find that Defendant expended a reasonable amount of time
in preparing for Detective Haylock’s deposition.
As to the other depositions, Plaintiff’s counsel deposed the following nine witnesses:
Plaintiff, Ms. Nelson, David Call, M.D., Neil Blumberg, M.D., Officer Downey, Officer Canino,
Carlos Salvado, Taylor Acosta, and Keith Taylor. Plaintiff did not spend over seven hours on the
depositions of critical witnesses: Plaintiff, Nelson, and Haylock. In addition, the amount of time
expended for the depositions of the other witnesses, including experts, were fewer than two
In short, I find that Plaintiff’s counsel expended a reasonable number of hours for
As it relates to the preparation of the fee petition, this Court agrees with the Defendant that
the majority of the fee petition was a recitation of the facts. Upon reviewing plaintiff’s complaint
and the fee petition’s factual background, I find both pleadings are nearly identical. Plaintiff seeks
19.7 hours for fee petition preparation and 13.95 hours for responding Defendants opposition to
the motion for attorney’s fees. In total, Plaintiff expended 33.65 hours for fee preparation and a
reply, which I find to be excessive. First, there is no dispute as to counsel’s entitlement to attorney’s
fees because Defendant agreed to pay Plaintiff’s reasonable attorney’s fees and costs. Second,
Plaintiff’s factual background in the fee petition is similar to the Complaint. Finally, as to
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Plaintiff’s reply brief, the Court acknowledges that Plaintiff’s counsel is expected to reply to
Defendant’s opposition. See Sergeant, supra, at 7. However, all of the arguments raised in the fee
petition are not novel or particularly complex, and with Plaintiff’s expertise he should have been
more efficient. See Corral, supra, at 718. Therefore, I recommend an overall reduction of
Remaining Billing Categories
As to the remaining billing categories, I find that Plaintiff’s billing entries for document
review (5 hours); “detailed memorandum of law” review (5 hours); digesting Detective Haylock’s
200-page deposition (6 hours); drafting answers to interrogatories (9.95 hours) are slightly
unreasonable, given counsel’s experience. Thus, a downward adjustment of $10,000 is
In sum, I recommend the total reduction of $29,500 from the proposed total $113,468.15,
which equals $83,968.15.
On October 17, 2019, Plaintiff submitted a bill of costs seeking reimbursement for
$8,896.53 in taxable costs. (ECF No. 34). However, in his fee petition, Plaintiff seeks $10,795.26
in taxable costs. (ECF No. 38-1). Plaintiff’s statements related to costs are inconsistent. The
Statement of Costs provided in ECF No. 38, Plaintiff’s Exhibit 1B, has the following additional
entries: (1) 8/23/2019-transcript of Neil Blumberg, MD for $343.13; (2) 7/8/2019-copies of court
records from Circuit Court for $22.50; and (3) 7/17/2019-investigative work for $1533.10. To date,
Defendant County had not objected to the updated amount sought. Although Defendant County
did not object, this Court will not reward costs for items (1), (2), and (3), because Court’s
Guidelines for Bills of Costs do not allow for these items. See L.R. 109.1(b).
Case 8:18-cv-03683-TDC Document 45 Filed 09/10/20 Page 19 of 20
Defendant County objects to the costs of the video depositions of Crystal Nelson and
Detective Haylock, asserting that Plaintiff failed to demonstrate why both deposition transcripts
and videotapes of the depositions were necessary. Defendant County maintains that this Court
should deduct the costs of the videotaped deposition from Plaintiff’s allowable costs, relying on
Cherry v. Champion Int’l Corp., 186 F.3d 442 (4th Cir. 1999) and this Court’s Guidelines for Bills
of Costs to advance its arguments.(ECF No. 37, pp. 1-3).
Plaintiff replies that copies of Haylock’s and Nelson’s videotaped depositions were
necessary because Haylock and Nelson were adverse witnesses. In addition, Plaintiff maintains
that a “cold transcript of a deposition is inferior to a video-deposition because the latter can provide
important information a written transcript cannot.” Plaintiff also argues that facial expressions,
body language, and mannerisms are important when assessing a witness’ credibility. As it
specifically relates to Crystal Nelson’s videotaped deposition, Plaintiff further contends that there
was a possibility that she would be unavailable for trial due to her outstanding arrest warrant. (ECF
No. 39, pp.1-3).
Cherry is instructive. In Cherry, the prevailing party sought to recover for both the costs
of transcription and video deposition fees. Cherry, supra, at 445. The prevailing party asserted that
the videotaped deposition was “necessary to enhance its chances of effectively impeaching Cherry
at trial.” Id. at 448. The Fourth Circuit opined that the “necessity for use in the case connotes
something more than convenience or duplication to ensure alternative methods for presenting
materials at trial.” Id. (citing to Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d
278,285 (5th Cir. 1991)). Id. The Cherry court found that the prevailing party failed to show the
necessity for both transcription and video for the identified need. Id. The Cherry court allowed
only the transcription costs. Id.
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The instant case is analogous to Cherry. Plaintiff failed to reasonably identify why the both
transcription and video were necessary. The Court acknowledges that the video depositions may
be an attractive option for a jury trial; however, I do not find them necessary. The relevant portions
of a transcript can be used to impeach a witness during trial. See, e.g., FRE 612, 613. In addition,
Plaintiff fails to cite to any case law. The issues of whether presenting a transcript or a video of
the depositions to a jury would be more or less successful is related to strategy rather than
necessity. 6 Therefore, this Court recommends deducting costs for videotaped depositions of
Detective Haylock and Nelson from the proposed total ligation costs. The total of amount for the
videotaped depositions calculates to $2,234.50.
This Court finds that all other requested litigation costs are reasonable. Therefore, I
recommend that Plaintiff shall be awarded $6,662.03 ($10,795.26 - $4,133.23) for litigation costs.
In sum, I find that the requested hourly attorney rate ($535 /hour) is reasonable. I further
find that the majority of the requested number of hours are reasonable, with the adjustments set
forth above. I have multiplied the number of reasonable hours expended by the reasonable rate for
the attorney as instructed by Randolph and followed the other Randolph requirements. I find that
no other reductions were warranted. I ultimately recommend a total fee award of $83,968.15 and
litigation costs award of $6,662.03.
Dated: September 10, 2020
The Honorable Gina L. Simms
United States Magistrate Judge
Plaintiff’s counsel spent a total of six hours “digesting” Detective Haylock’s 200-page deposition transcript, which
signifies to the Court that the transcript is sufficient and valuable to Plaintiff. (See ECF No. 38-1).
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