Thayer et al v. City of Worcester

Filing 139

District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 126 Motion for Attorney Fees. The Court awards a total sum of $519,488.97 in attorneys fees and costs. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ROBERT THAYER, SHARON BROWNSON,
and TRACY NOVICK,
Plaintiffs,
v.
CITY OF WORCESTER,
Defendant.

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CIVIL ACTION
No. 13-40057-TSH

MEMORANDUM OF DECISION AND ORDER
March 29, 2017
HILLMAN, D.J.
Background
In January of 2013, the City of Worcester (“City”) adopted two ordinances aimed at
controlling aggressive panhandling. Specifically, the City of Worcester Revised Ordinances of
2008, as amended through February 5, 2013 (“R.O.”) ch. 9, §16 (“Ordinance 9-16”) made it “ ...
unlawful for any person to beg, panhandle or solicit in an aggressive manner.” R.O. ch. 13, §
77(a)(“Ordinance 13-77,” and together with Ordinance 9-16, the “Ordinances”) prohibited
standing or walking on a traffic island or roadway except for the purpose of crossing at an
intersection or crosswalk, or entering or exiting a vehicle or “for some other lawful purpose.” On
May 31, 2013, the Plaintiffs, Robert Thayer (“Thayer”), Sharon Brownson (“Brownson”) and
Track Novick (“Novick”) brought suit against the City seeking declaratory and injunctive relief
and monetary damages. On October 24, 2013, I issued an Order denying Plaintiffs’ motion for a

preliminary injunction. See Mem. of Dec. and Order on Pl’s Mot. for Prel. Inj. (Docket No. 32).
Plaintiffs appealed the denial of their request for injunctive relief to the First Circuit, which
affirmed my Order, except as to Ordinance 9-16’s proscription on nighttime solicitation. See
Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014), vacated, Thayer v. City of Worcester,
576 U.S., 135 S.Ct. 2887 (2015). Plaintiffs then filed a petition for writ of certiorari seeking
review in the Supreme Court of the United States. On June 29, 2015, the petition for writ of
certiorari was granted, the judgement of the First Circuit was vacated and the matter remanded
for further consideration in light of Reed v. Town of Gilbert, 576 U.S. , 135 S.Ct. 2218 (2015).
On July 14, 2015, the First Circuit subsequently vacated its opinion and judgment and remanded
the matter to this Court. On November 9, 2015, I issued a Memorandum of Decision and Order
(Docket No. 120) finding in favor of the Plaintiffs on the parties’ cross-motions for summary
judgment. Judgement entered in favor the Plaintiffs on that same date. See Docket No. 122.
This Memorandum of Decision and Order addresses Plaintiffs’ Motion For Award of
Attorney’s Fees And Litigation Expenses (Docket No. 126). For the reasons set forth below, that
motion is granted, in so far as Plaintiffs shall be awarded attorneys’ fees and costs, but denied as
to the amount requested.
Discussion
Plaintiffs seek attorneys’ fees in the amount of $1,016,439.60 and total costs of $9,783.59
in connection with the underlying proceedings, and an additional $16,888.00 for preparing their
fee petition, for total attorneys’ fees and costs of $1,043,111.19. Defendant asserts that the
Plaintiffs’ fee petition should be denied is so far as the amount of fees sought is excessive,
duplicative, and punitive. More specifically. Defendant asserts that the fees and expenses
charged by Plaintiffs’ legal team are “wholly disproportionate to the billable rate in the

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Worcester area, as well as to the nature and outcome of the case, an alleged theoretical First
Amendment violation that was resolved at summary judgment.” Def’s Opp. To Pls’ Mot. For
Attorneys’ Fees And Expenses (Docket No. 135).
Legal Standard
Having prevailed on their Section 1983 claim that the Ordinances unconstitutionally
restricted their right to freedom of speech, the Plaintiffs are presumptively entitled to recover
their reasonable attorneys’ fees, “‘unless special circumstances would render such an award
unjust.’”. Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008); see also 42 U.S.C.
§1988(b)(in any Section 1983 action, court in its discretion may allow prevailing party
reasonable attorneys’ fee as part costs). What constitutes a reasonable attorneys’ fee:
typically is determined through the lodestar method, which involves multiplying
the number of hours productively spent by a reasonable hourly rate to calculate a
base figure. In fashioning the lodestar, [the] court may adjust the hours claimed to
eliminate time that was unreasonably, unnecessarily, or inefficiently devoted to
the case. Subject to principles of interconnectedness, the court may disallow time
spent in litigating failed claims. It also may adjust the lodestar itself, upwards or
downwards, based on any of several different factors, including the results
obtained and the time and labor actually required for the efficacious handling of
the matter. Reasonableness in this context is largely a matter of informed
judgment. There are, however, guideposts in the case law. For instance, a district
court may deem an expenditure of time unreasonable if the reported hours are
‘excessive, redundant, or otherwise unnecessary.’ By like token, it may discount
or disallow the total hours claimed if it determines that the time is insufficiently
documented.
Id. (internal citations and citations to quoted case omitted). After passing on the reasonability of
the time expended by the attorneys, the Court must determine the appropriateness of the rates
charged. Id.
In determining an objectively reasonable award based on the work of Plaintiffs’
attorneys, the Court has reviewed the pretrial, trial and post-trial record of this case, including the
affidavits and billing records submitted by Plaintiffs in support of their application for fees and
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costs. Considering these materials and the arguments of the parties, the Court will apply the
lodestar method, making appropriate adjustments in light of the factors outlined by the First
Circuit.
Whether the Time Spent And Fees Charged Were Appropriate
Plaintiffs’ attorneys provided able representation throughout the course of these
proceedings. Moreover, there is no question that, having received a judgement in their favor that
granted them the entirety of the relief they requested, Plaintiffs are entitled to an award of
attorneys’ fees and costs. The amount of costs and attorneys’ fees to which they are entitled,
however, is a highly disputed between the parties.
Plaintiffs’ legal team consisted of eleven attorneys nine from the Boston law firm of
Goodwin Procter LLP and two from the American Civil Liberties Union (“ACLU”).1 The
attorneys from Goodwin Procter LLP (“Goodwin attorneys”) billed at the following rates: (1)
Kevin Martin, a senior level attorney (partner)-- $640-$680 per hour; (2) Yvonne Chan, a senior
level attorney (partner)-- $488-$580 per hour; (3) Brian Burgess, a mid to senior level attorney
(senior associate)-- $408-$520 per hour; (4) Joshua Daniels—mid level attorney (senior
associate)-- $476-$508 per hour; and (5) Todd Marabella (associate), Danielle Bart (associate),
Alexandra Lu (associate), Kate MacLeman (associate), Margaret Sullivan (associate)-- $284$468 per hour. As to the attorneys for the ACLU (“ACLU attorneys”), Matthew Segal, Legal

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Plaintiffs’ request for attorneys’ fees and costs is summarized in the table below:
Reimbursement Sought
Amount
Goodwin Proctor Attorneys’ Fees (including fees
incurred filing the petition)
$984,577.60
ACLU Attorney Segal’s Fees
$31,875.00
ACLU Attorney Wunsch’s Fees
$16,875.00
Costs
$9,783.59
Total
$1,043,111.19

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Director of the American Civil Liberties Union Foundation of Massachusetts (“ACLUM”), a
senior level attorney, is requesting reimbursement of $625 per hour (“in an exercise of billing
judgment”), and Sarah Wunsch, Deputy Director ACLUM, a senior level attorney, seeks
reimbursement at the hourly rate of 750.00 per hour, which she asserts is reasonable in light of
current rates in the Boston area for attorneys with her experience.
Plaintiffs argue that the rates charged by the Goodwin and ACLU attorneys are
competitive. The Goodwin attorneys’ rates reflect the “discounted Boston, Massachusetts rates
for legal work of attorneys with similar skills, experience and reputation.” They further argue
that this case involved novel and complex legal issues and all of the attorneys’ rates reflect their
“expertise” in First Amendment cases. I disagree. While the Ordinances at issue in this case did
raise some new legal theories and arguments regarding a municipality’s right to limit aggressive
panhandling and signage/congregating on public property, in reality, the litigation simply
involved a new spin on the age old conflict between freedom of speech and a municipality’s right
to limit speech in the name of public safety. As such, the issues were not unduly novel or
complex. Additionally, while Plaintiffs assert that the rates charged are reasonable and reflect a
“discount,” I find that they are far in excess of any reasonable rate that would be charged in the
Worcester area for this type of case. Moreover, while Goodwin Procter LLP and some of the
Goodwin attorneys who worked on this case are experienced in litigating First Amendment
cases, many of them had little to no such experience—at least not enough to warrant suggesting
that their “expertise” supports the rates charged2.

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Plaintiffs’ suggest that the four other similar cases that many of these attorneys were working
contemporaneously (if not simultaneously) to this case makes them experienced First Amendment litigators. Given
the obvious disconnect inherent in this proposition, the Court finds the Plaintiffs’ position disingenuous and
unworthy of further comment.

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Accordingly, I am reducing the hourly rate charged by the attorneys to reflect the rates
which would be charged by attorneys with comparable experience in the Worcester/Central
Massachusetts. See Fryer v. A.S.A.P. Fire & Safety Corp., 750 F.Supp.2d 331, 339 (D.Mass.
2010)(to determine reasonable hourly rate, court applies prevailing rates in community taking
into account qualifications, experience and specialized competence of attorneys involved;
relevant community is that where court sits); Parker v. Town of Swansea, 310 F.Supp.2d 376,
388 (D.Mass. 2005)(noting relevant community is Boston, where court sits). The Goodwin
attorneys rates will, therefore, be reduced as follows: senior attorneys (Martin and Chan) shall
be reduced to $400.00 per hour for Martin and $350.00 per hour for Chan; Burgess, who I find to
be a mid to senior level attorney, shall be reduced to $250.00 per hour; Daniels and Marabella,
who are mid-level associates, shall be reduced to $225.00 per hour; and Bart, Lu, MacLeman
and Sullivan who are junior level associates, shall be reduced to $200.00 per hour. I am also
reducing the rates charged by the ACLU attorneys as I find that their expertise and experience
did not warrant the hourly rates charged by them as such rates are far in excess of rates charged
by attorneys of similar experience for similar cases in the Worcester area: Wunsch’s rate shall be
reduced to $375.00 per hour and Segal’s rate shall be reduced to $350.00 per hour. Accordingly,
the Court starts with the following presumptive award of attorneys’ fees: Goodwin attorneys
$572,190.00 and ACLU attorneys $24,572.50.
The next question becomes whether the amount of time which each lawyer spent on the
case was warranted. The court must calculate the number of hours reasonably expended by the
attorneys for the prevailing party, excluding those hours that are “excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933 (1983)(court
should exclude hours not reasonably expended); see also Grendel’s Den, Inc. v. Larkin, 749 F.2d

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945, 950 (1st Cir. 1984). The inquiry typically starts with the attorney’s “contemporaneous
billing records” however, “the court’s discretion is by no means shackled by those records.”
Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295-96 (1st Cir. 2001). Additionally,
the court should examine the record to see if “’counsel substantially exceeded the bounds of
reasonable effort.’” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 17 (1st Cir. 1988)
(citation to quoted case omitted). The court is also justified in disallowing or discounting
requests if the records are “too generic and, thus, insufficient as a practical matter to permit a
court to answer questions about excessiveness, redundancy, and the like.” Torres-Rivera v.
O’Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008).
To support the reasonableness of their request, Plaintiffs point out that they are not
seeking fees associated with: travel from Boston to Worcester; time spent on geomatics experts;
litigation strategy meetings; attending hearings, oral arguments, and status conferences (besides
Chan and Martin); and ministerial or administrative tasks. Additionally, Plaintiffs note they are
not charging for the help of other Goodwin Procter LLP partners in preparing for litigation.
Finally, Plaintiffs note that they are not seeking fees for time spent by Goodwin paralegals,
attorneys participating only in administrative, logistical or procedural matters, or the ACLU
paralegal. While this and other courts consider this type of “self-pruning” when determining
whether the reasonableness of attorneys’ fees, in this particular case, I am not persuaded that
Plaintiffs’ attorneys made a concerted effort to, as the saying goes, separate the wheat from the
chaff. See Rosie D. ex rel. John D. v. Patrick, 593 F.Supp.2d 325, 332 (D.Mass.2009) (noting
“self-pruning” of time that may be redundant, time spent by support staff, and time not directly
relating to the case may confirm most of the hours expended are reasonable, necessary and
neither excessive nor duplicative); Hutchinson ex rel. Julien v. Patrick, 636 F.3d 1, 15 (noting

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district court’s consideration of “self-pruning” was understandable). More specifically, the
Court is not persuaded by the fact that Goodwin Procter LLP did not charge for partners and
other attorneys that provided input in addition to the nine attorneys already working on the case.
The Court is also not impressed by Goodwin Procter LLP’s not seeking fees for geomatics
experts and other experts who were consulted but never used and for motions never filed.
Additionally, I have reviewed the Goodwin attorneys’ time sheets in detail. First, in order
to justify the use of nine attorneys, which on the surface may be perceived as overstaffing,
Plaintiffs point out that when taking cases pro bono, even attorneys from a large firm cannot be
expected to devote themselves to the case full-time. While the Court recognize this reality, I am
troubled by the manner in which the attorneys were utilized in this case. Contrary to Plaintiffs’
suggestion, substantially more hours were incurred by higher billing, more senior attorneys, with
much of the hours spent related to research and writing initial drafts-- tasks which could have
fallen to less senior attorneys. For example, a substantial amount of the over 300 hours incurred
by Ms. Chan involved researching and drafting most of the initial memoranda, pleadings and
motions. Many of these documents were then reviewed and revised by Mr. Martin, another
partner. Moreover, despite bringing on Messrs. Burgess and Daniels as experts on appeals, Ms.
Chan was tasked with drafting and reviewing many of the appellate briefs.
This case was staffed by nine attorneys of different experience and billing levels,
including partners, mid-level/senior associates and junior associates. I would have expected
much of the drafting and research to have been done by senior to lower level associates, whose
work would then be reviewed and edited by more senior attorneys. In making this observation, I
note that divvying up pro bono work will often necessarily result in more senior level attorneys
doing work normally done by more junior attorneys who, for obvious reasons, the firm may

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afford only a limited amount of time to devote to such matters. However, the resulting higher
cost of conducting the litigation should not then be shifted to the adversary in a fee award case
such as this. Instead, the rates charged by senior level attorneys doing work normally done by
lower level attorneys should be reduced accordingly. No such adjustment was made in this case.
Also troubling to the Court is that Ms. Chan, an experienced litigator, charged for over thirty
hours of preparation for the hearing on the preliminary injunction and over twenty hours
preparing for the summary judgment hearing, including hours spent on mock hearings. Mr.
Martin, also an experienced litigator, charged over thirteen hours for preparing for the summary
judgment hearing and “holding moot court.” The significant time spent in preparation and
holding mock hearings should have been among the first cuts had Plaintiffs made a serious effort
to “self-prune” their fees and costs. Finally, given the number of attorneys utilized, while the
amount of overlap and duplicative effort was kept to a minimum, it was not eliminated. For these
reasons, the Court further finds a reduction of the fees charged is warranted. Accordingly, I am
further reducing the Goodwin attorneys’ fees charged in Plaintiffs’ fee request by fifteen percent
(15%), to $486,361.50.
The ACLU attorneys assert that they significantly reduced their fee by not charging for
approximately half the work they performed. I commend the ACLU attorneys for making a
concerted effort to seek reimbursement only for those hours which were reasonably expended
and necessary. Nevertheless, reviewing the work for which they do seek reimbursement and
given their role, which as pointed out by Defendant was primarily as consultants, I find that a
further reduction is warranted. More specifically, there are a number of instances where the
ACLU attorneys’ work is duplicative of the Goodwin attorneys. Additionally, the Defendant
should not be responsible for paying for the ACLU’s contemplation of filing an amicus brief

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with the Supreme Court and consulting with others about doing the same, nor should the
Defendant be responsible for reimbursing the Plaintiffs for a 1.3 hour conference call regarding
with other ACLU affiliates regarding panhandling in Idaho and elsewhere, or drafting e-mails to
legal luminaries. As discussed more fully below, charging full rates for preparation and review of
a fee petition is unwarranted. For these reasons, I am further reducing the ACLU attorneys’ fees
charged in Plaintiffs’ fee request by five percent (5%) to $23,343.88.
Plaintiffs’ Request for Reimbursement For Preparing Fee Petition
The Plaintiffs filed a supplemental memorandum, requesting reimbursement for the time
spent preparing the motion for attorneys’ fees and costs; they seek reimbursement in the amount
of $16,888.00. The Court has spent more time than was warranted going through Plaintiffs’
petition for attorneys’ fees and costs and supporting documentation. Had the Plaintiffs spent
more time engaging in the “self-pruning” analysis referred to previously rather than attempting
to justify their excessive fee request, far less time and resources would have been expended by
them, the Defendant and the Court in analyzing their request. Moreover, in a previous case
before this Court issued before the Plaintiffs filed their motion for attorneys’ fees and costs, the
ACLU and their co-counsel (which were private counsel from firms other than Goodwin Procter
LLP) were admonished for charging more than a minimal rate for preparing a fee petition. See
Cocroft v. Smith, 148 F.Supp.3d 57, 62 (D.Mass. 2015). Despite that clear admonition, the
Goodwin attorneys and one ACLU attorney (Ms. Wunsch) charged their full rates for preparing
the fee petition.3 Under these circumstances, Plaintiffs’ request for reimbursement for the time
and expense incurred in connection with preparing the fee petition is denied in its entirety.

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ACLU attorney Segal billed his full rate for preparing the fee petition, then opted not to seek
reimbursement.

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Costs
Plaintiffs seek costs in the amount $9,783.59. I find all of Plaintiffs’ costs to be
reasonable and reimbursable and therefore, award them the entire amount requested.
The Award
This case was an important case which raised and decided important issues of public
concern. Plaintiffs prevailed on their First Amendment claim and during the course of the
litigation were well represented by experienced litigation attorneys whose ability and
commitment are unquestioned. Moreover, the Court’s decision is not meant to chastise counsel,
nor to be taken as a negative comment on counsel’s billing practice. Rather, the Court has a duty
to closely examine fee petitions “to balance the need to compensate successful counsel against
the need to burden unsuccessful defendants fairly, but no more.” Metropolitan Dist. Comm’n,
847 F.2d at 20 (emphasis added). In determining what is a “reasonable fee” in the context of a
fee shifting statute, the prevailing party must bear in mind that “a law firm’s customary schedule
of charges, though entitled to consideration, is not dispositive of the issue: a private client might
well be willing to buy a Stradavarius when a Guadagnini would plainly do, or to pay top dollar
for either when the same instrument could be purchased less expensively elsewhere. The court
must, therefore, turn a realistic eye on the proffered pricing, endeavoring to fashion rates
‘adequate to attract competent counsel but which do not produce windfalls to attorneys.’” Id., at
19 (citation to quoted case omitted). Moreover:
there is no single ‘reasonable’ fee. The term connotes a range rather than an
absolute. As [has been] said in an analogous context, borrowing Emerson’s
description of nature, reasonableness ‘is a mutable cloud, which is always and
never the same.’ Once this doctrine is accepted, common sense conduces to an
obvious conclusion: the law firm’s bill need not be swallowed whole by the
client’s litigation adversary just because it is the law firm’s bill. That the firm is,
as here, highly reputable and well regarded, does not change the equation. The
loser cannot be left at the mercy of the winner’s lawyers, bound to pay not a
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‘reasonable’ fee, but a fee on the order of what the victor—for whatever
reasons—might be willing to tolerate.
Id., at 17.
The Court believes that an award of $509,705.38 in attorneys’ fees and $9,783.59 in
costs, for a total award of $519,488.97. The Court finds that this award achieves the appropriate
balance between compensating the Plaintiffs’ counsel, while at the same time, burdening
Defendant in an amount which is fair, “but no more.”4
Conclusion
For the foregoing reasons, Plaintiffs’ Motion For Award of Attorney’s Fees And
Litigation Expenses (Docket No. 126) is granted, in part, and denied, in part. The Court awards
a total sum of $519,488.97 in attorneys’ fees and costs.
SO ORDERED.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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As support for the reasonableness of their request for over $1,000,000 in costs and fees, Plaintiffs point
out that in McCullen v. Coakley, Civ.Act. No. 08-10066-GAO, a case in which the Plaintiffs successfully struck
down a Massachusetts statute creating a fixed buffer zone around abortion clinics, it was reported in the press that
the parties had settled the plaintiffs’ claim for attorneys’ fees and costs for $1,200,000.00. A review of the docket
shows that McCullen, which was argued before the Supreme Court, involved far more extensive motion practice
than occurred in this case. The Court finds the parties settlement in Cutting v. City of Portland, Civ.Act.No. 1300359-GZS, one of the first amendment cases which Plaintiffs’ counsel was pursuing contemporaneously with this
case, to be informative. That case included an evidentiary hearing on the plaintiffs’ motion for preliminary
injunction and an appeal to the First Circuit, but did not include a petition for writ of certiorari to the Supreme Court
or motions for summary judgment. The parties settled the plaintiffs’ claim for attorneys’ fees and costs in that case
for $175,000.00. While the facts and circumstances of the McMullen and Cutting are not squarely on point with
this case, I find that the awards in those cases support the reasonableness of the amount I have awarded in this case.

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