Abdullah v. Saint Louis, County of, Missouri et al

Filing 79

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for a bill of costs [# 68 ] is GRANTED and the Clerk of the Court shall tax costs in the amount of $900. IT IS FURTHER ORDERED that plaintiffs' mot ion for attorneys' fees [# 69 ] is GRANTED IN PART and defendants are jointly and severally liable for plaintiffs' attorneys' fees and expenses in the amount of $152,867.34. IT IS FURTHER ORDERED that plaintiffs' motion for leave to supplement [# 78 ] is DENIED as moot. Signed by District Judge Catherine D. Perry on 9/24/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MUSTAFA ABDULLAH, et al.,

)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF ST. LOUIS, MISSOURI, )
et al.,
)
)
)
Defendants.
)

Case No. 4:14 CV 1436 CDP

MEMORANDUM AND ORDER
On December 22, 2014, upon joint motion of the plaintiffs and of defendants
Ronald K. Replogle and County of St. Louis, Missouri, I entered an order
permanently enjoining defendants from enforcing a “keep-moving” rule against
any person peaceably assembling on the public sidewalks in Ferguson, Missouri.
Pursuant to the stipulated order, the parties agreed that this court would retain
jurisdiction to adjudicate any claims for recovery of attorneys’ fees and costs.
Plaintiffs have now filed a bill of costs and a motion for attorneys’ fees in
accordance with Rule 54, Fed. R. Civ. P., and 42 U.S.C. § 1988. The plaintiffs
seek taxable costs of $900 and attorneys’ fees and expenses of $380,786.59.
Defendants do not object to plaintiffs’ costs but challenge the reasonableness of
counsels’ hourly rate and the total number of hours worked. In particular,

defendants argue that this case could and should have been staffed by local
attorneys charging local rates, but instead it was staffed with five attorneys from
Los Angeles, California, where market rates are substantially higher than those in
St. Louis. Defendants argue that plaintiffs inappropriately staffed the case with a
total of six attorneys when it could successfully have been handled by fewer
attorneys. After examining the record and evidence submitted by plaintiffs, I find
that plaintiffs’ non-local counsel’s rates and hours billed are excessive and I will
reduce plaintiffs’ award accordingly. Therefore, I conclude plaintiffs are entitled
to costs in the amount of $900 and attorney’s fees and expenses in the amount of
$152,867.34.
Bill of Costs
Under Rule 54(d), “costs—other than attorney’s fees—should be allowed to
the prevailing party.” The specific costs that are recoverable are listed in 29
U.S.C. § 1920. Plaintiffs have submitted a bill of costs in the amount of $900,
claiming costs only for fees of the clerk—specifically, their filing fee and pro hac
vice fees for five attorneys. Fees of the clerk are among the recoverable fees listed
in § 1920, and defendants have not challenged these costs, therefore, plaintiffs are
entitled to recover the full amount listed in their bill of costs.

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Attorneys’ Fees and Expenses
Plaintiffs have asked for attorneys’ fees in the amount of $362,964 and
expenses of $18,822.59. Plaintiffs’ six attorneys included one lawyer from the
American Civil Liberties Union of Missouri Foundation, and one junior partner
and four associates from the firm Munger, Tolles, & Olson LLP, a firm with
offices in Los Angeles and San Francisco. Also included in the fees calculation are
hours worked by an Automated Litigation Support Specialist and a paralegal, both
from the Munger firm.
As the prevailing parties in a civil rights action, plaintiffs are entitled to
“reasonable” attorneys’ fees under 42 U.S.C. § 1988(b). In order to determine the
amount of a reasonable fee, I should employ the “lodestar method” where the
starting point “is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Fires v. Heber Springs Sch. Dist., 565 F. App'x 573, 575 (8th Cir. 2014).
Once I have determined that amount, I should consider a number of other factors to
determine whether the fee should be adjusted upward or downward.1 Hensley, 461
U.S. at 434; see also City of Riverside v. Rivera, 477 U.S. 561, 568 n.3 (1986).

1

These factors are: (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 attorney's preclusion of other employment due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the 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). Johnson v. Ga. Highway Express, Inc., 488 F.2d 714,

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The chart below is a breakdown of plaintiffs’ lodestar calculation for their
attorneys’ fees:
Hours
G. Davis-Denny
(Munger junior partner)
N. Rehn
(associate)
T. Clancy
(associate)
V. Degtyareva
(associate)
K. Trujillo-Jameson
(associate)
S. Bales
(Automated Litigation
Support Specialist)
J. Driver-Moore
(paralegal)
A. Rothert
(ACLU attorney)
TOTAL:

Rate

Total

130.6

$695

$90,767

65.2

$595

$38,794

209.4

$490

$102,606

121.4

$490

$59,486

65.8

$490

$32,242

54.8

$355

$19,454

43

$260

$11,180

24.1

$350

$8,435

714.3

$362,964

Plaintiffs’ expenses consist of charges for transcription of the preliminary
injunction hearing and the temporary restraining order hearing, a private process
server, copies, attorney and staff travel and lodging, attorney and staff internet use,
fact witness travel and lodging and expert witness fees and expenses.

717–19 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90, 109 S.Ct. 939, 103
L.Ed.2d 67 (1989).

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ACLU Fees
Defendant Replogle’s primary objection to ACLU attorney Rothert’s fee is
that his hourly rate is high. Replogle points out that in Snider v. City of Cape
Girardeau, 752 F.3d 1149 (8th Cir. 2014), the Eighth Circuit approved an attorney
award for Rothert that was calculated using an hourly rate of $300. The complaint
in Snider was filed with the district court in 2010, and the bulk of the work for
which plaintiff sought attorneys’ fees was done from 2010 to 2012. The instant
case was filed and litigated in late 2014. It is predictable and not at all
unreasonable that Rothert’s rates would increase over the course of three years.
Rothert’s current rate is within the range of prevailing market rates for an
experienced civil rights attorney, and he has recently been awarded fees based on
an even higher hourly rate. See Survivors Network of Those Abused by Priests,
Inc. v. Joyce, No. 4:12cv1501-ERW, 2015 WL 4042143, at *1 (E.D. Mo. July 1,
2015); Kennard v. Kleindienst, No. 2:14cv4017-BCW (W.D. Mo.); see also Hanig
v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (in determining reasonable hourly rates,
district courts may rely on their own experience and knowledge of prevailing
market rates).
Defendant County’s only objection to Rothert’s fees is to the one hour billed
by Rothert for the TRO hearing. However, the County fails to explain the basis for
its objection or provide legal support for not awarding fees for that hour. The
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number of hours expended by Rothert was highly reasonable, particularly
considering that he performed the initial evaluation of the case, and filed a
complaint, a temporary restraining order, and a supporting memorandum under a
pressing time frame. Accordingly, based on the record before me, I conclude
Rothert’s fees and hourly rate are reasonable, and his fees will be awarded to the
full extent requested.
Munger Firm’s Fees
Defendants object to the Munger firm’s fees on two grounds. First, they
assert the attorneys’ hourly rates are unreasonable because St. Louis hourly rates
should apply. Next, they argue that staffing the case with five attorneys was
unnecessary and resulted in the billing of excessive and redundant hours,
particularly with regard to the presence of four attorneys and one litigation support
specialist at the preliminary injunction hearing.
As for Munger’s staffing of the case, although I acknowledge that large
firms typically staff cases with multiple attorneys, I conclude that staffing here was
excessive for the demands of the case. This was not a factually complicated
matter—there were no depositions, and little to no document discovery. In terms
of factual complexity, this case was similar to many routine civil cases—it required
examination of one expert and a handful of fact witnesses, testifying about what
they observed on the streets of Ferguson; and it required cross examination of four
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defense witnesses on policy matters. Because of the time frame and the need for
quick action given the ongoing demonstrations, using multiple attorneys and
expending significant hours when the case first came in to the firm is somewhat
understandable. Munger was required initially to comprehend the case and draft
preliminary injunction documents on a very constricted timeline. However, the
attorneys had four weeks between the time their preliminary injunction motion was
filed and the motion hearing, and two weeks between the time defendants’
opposition briefs were filed and the hearing. This is a typical timeline for a
preliminary injunction motion, and given the relative demands of the case already
discussed, it was not abnormally burdensome. However, in the time period
between filing the preliminary injunction motion and the date of the hearing,
Munger spent at least 340 hours working on the case, which is 42 eight-hour days.
It spent this amount of time despite the fact that five of the seven witnesses who
testified for plaintiffs at the hearing submitted affidavits in support of the motion
for preliminary injunction, indicating their knowledge and testimony were worked
up even before the motion was filed.
Although plaintiffs argue that in preparing for the hearing, redundancies
were avoided by assigning each attorney his or her own witnesses to handle, I
believe that the additional attorneys added inefficiency to the process. Even if the
five attorneys’ assignments never overlapped, Munger attorneys were still required
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to synthesize the work of five people (instead of two) for a cohesive presentation at
the hearing.
Additionally, as Davis-Denny acknowledged in his affidavit, the attorneys
reviewed one another’s work. Although I agree that this is typically a helpful
practice, it seems clear that here, some of the redundancy in reviewing could have
been avoided. For instance, in four separate time entries, attorney Degtyareva
drafted, Davis-Denny reviewed, and Degtyareva revised and later finalized a twopage motion to sequester witnesses.2
Plaintiffs argue that the hours spent on the case were mandated in part by
defendants’ shifting story as to the keep-moving rule. However, so long as
plaintiffs’ own witnesses’ accounts did not change, it is difficult to understand how
the defendants’ fluctuating narrative created significantly more work for plaintiffs’
attorneys.
Finally, I find that charging fees for four attorneys and one litigation
specialist to travel to3 and attend an eight-hour hearing that could have been
handled by two attorneys is excessive.

2

In reality, all that would have been required to sequester witnesses was for one attorney to stand
up in court at the beginning of the hearing and invoke Federal Rule of Evidence 615.
3

Degtyareva appears to have not billed for her travel time, and Davis-Denny wrote off some of
his travel time.

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In light of all of the above, I conclude that despite the success of their case,
the number of hours billed by the Munger firm was excessive. Ultimately, I
believe two attorneys could have handled the matter; therefore, I will award the
hours billed by Davis-Denny and Clancy (the associate who billed the highest
number of hours), but the hours of all other attorneys are excluded. I will reduce
the hours of the litigation specialist, Bales, to sixteen. This accounts for reasonable
time spent on preparing for and attending the hearing. I will also reduce the hours
of the paralegal, Driver-Moore, to eight, which accounts for reasonable time spent
on preparing exhibits.
As to Munger’s hourly rates, I conclude that they should be reduced to more
closely reflect rates typical of the St. Louis market. Generally, a reasonable hourly
rate means “the ordinary rate for similar work in the community where the case has
been litigated.” Snider, 752 F.3d at 1159 (citing Little Rock Sch. Dist. v. Arkansas,
674 F.3d 990, 995 (8th Cir. 2012)). Where a plaintiff does not use local counsel,
the district court may award fees based on a non-local hourly rate if the plaintiff
shows that despite diligent, good faith efforts, he was unable to find local counsel
willing and able to take the case. 752 F.3d at 1159.
Plaintiffs argue that Rothert made diligent, good faith efforts to find local
counsel to take this case, but his efforts failed. Rothert’s affidavit states that when
he realized the ACLU, with its already demanding case load, could not handle this
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case, he spoke with various mid- to large- sized firms about taking on this and
other Ferguson-related matters. None of the firms were willing to do so because of
the controversial nature of the cases and conflicts of interest in being adverse to the
State of Missouri.4 His affidavit makes it clear that he limited his search to mid- to
large- sized firms because he believed they would be the only ones with sufficient
resources to handle the exigencies of this case. His affidavit does not indicate how
many firms he spoke with.
Assuming Rothert’s search for a mid- to large-sized local firm was diligent, I
conclude that his efforts still fell short because I am unconvinced that a smaller
local firm, or a combination of smaller local firms, would not have been willing
and able to take this case. The events in Ferguson were highly publicized, and at
the time this case was filed, there was evident public sympathy, locally and
nationally, for the peaceful protestors, whose rights the plaintiffs in this case
sought to protect. See, e.g., Ray Downs, Police in Ferguson Fire Tear Gas on
Protestors Standing in Their Own Backyard, Riverfront Times, August 12, 2014,
http://www.riverfronttimes.com/newsblog/2014/08/12/police-in-ferguson-fire-teargas-on-protesters-standing-in-their-own-backyard; Daniel Hill, Peaceful Crowd of
Protesters Dispersed by Heavily Militarized Police Force in Ferguson, Riverfront

4

Rothert’s affidavit also mentions that in 2014, he attempted but was unable to find any large or
mid-sized Missouri firms willing to take cases challenging Missouri’s same sex marriage laws,
also because of conflicts of interest in being adverse to the State. This is irrelevant.

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Times, August 13, 2014, http://www.riverfronttimes.com/newsblog/2014/08/13/
peaceful-crowd-of-protesters-dispersed-by-heavily-militarized-police-force-inferguson; Unbelievable Ferguson Police: Our View, USA Today, August 19, 2014,
http://www.usatoday.com/story/opinion-/2014/08/14/michael-brown-shootingferguson-missouri-police-editorials-debates/14086807/; Ferguson Police Fumbled
Protests, Washington Post, August 14, 2014, https://www.washingtonpost.com
/opinions/ferguson-police-fumbled-protests/2014/08/14/637aea3a-23f3-11e4-86ca6f03cbd15c1a_story.html. I believe that there were competent, capable lawyers in
St. Louis that would have been willing, if not eager, to take on a case under these
circumstances.
Furthermore, the demands of this case were not so great that a small local
firm or a combination of two or more small local firms could not have handled it.
Although the timelines were tight, the facts were neither complicated nor dense,
and a smaller firm with even minimum §1983 experience would have had little
difficulty getting a handle on the legal issues. I also find it impossible to believe
that smaller firms do not have the resources to prepare for and handle what was
essentially a one-day trial with a month-long lead time. Small local firms handle
such trials regularly.
Clearly, the Munger lawyers moved quickly and worked hard on this matter
under difficult, stressful circumstances. They did an excellent job litigating the
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case, and I am grateful for their help. But I also note that their compensation here
goes beyond the monetary: multiple of Munger’s young lawyers were able to work
on a high profile, constitutional law case. They gained rare, trial-like experience
on a condensed timeline in federal court. I suspect these are among the reasons
Munger reached out to the ACLU in the first place when it offered to take on a
Ferguson-related case.
Given the obvious exigencies of this case, I recognize that an exhaustive
search of St. Louis law firms was impossible, but I believe that if the ACLU had
not limited the search to mid- to large-sized firms, it would have been able to find
willing and able counsel locally. Therefore, I will reduce MTO’s rates to more
closely resemble ordinary rates for similar work in the St. Louis market. DavisDenny’s rate will be reduced to $400 per hour, and Clancy’s rate will be reduced to
$350 per hour. Bales’ and Driver-Moore’s rates will be reduced to $150 per hour,
which is on the high end of the reasonable range for paralegals in St. Louis.
As defendants have not objected to the expenses for Rothert and Munger
they will be awarded in full except that travel, lodging, and internet expenses for
Bales, Rehn, and Degtyareva will be excluded in accordance with my conclusions
above.
To summarize, I will allow Rothert the full amount of fees ($8,435) and
expenses ($1,422.70) requested. I will award the Munger firm expenses in the
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amount of $13,879.64. The Munger fees will be awarded as follows: DavisDenny in the amount of $52,240, Clancy in the amount of $73,290, Bales in the
amount of $2,400, and Driver-Moore in the amount of $1,200. The total fee and
expense award is thus $152,867.34. Additionally, taxable costs in the amount of
$900 as requested will be allowed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for a bill of costs [#68]
is GRANTED and the Clerk of the Court shall tax costs in the amount of $900.
IT IS FURTHER ORDERED that plaintiffs’ motion for attorneys’ fees
[#69] is GRANTED IN PART and defendants are jointly and severally liable for
plaintiffs’ attorneys’ fees and expenses in the amount of $152,867.34.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to
supplement [#78] is DENIED as moot.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 24th day of September, 2015.

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