White v. McKinley et al

Filing 418

ORDER by Judge Nanette Laughrey. ORDERED that White's Motion for an Award of Fees and Costs 399 is GRANTED in part and DENIED in part as noted in the body of this Order.(Smith, Fran)

I N THE UNITED STATES DISTRICT COURT FOR THE W E S T E R N DISTRICT OF MISSOURI W E S T E R N DIVISION T H E O D O R E W. WHITE, P l a in tif f , v. R IC H A R D McKINLEY, et al, D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) )

C as e No. 05-0203-CV-W-NKL

ORDER Before the Court is Plaintiff Theodore W. White's ("White") Motion for an Award o f Fees and Costs [Doc. # 399]. For the following reasons, the Court grants the motion in p a rt and denies it in part. I. B a c k gro u n d W h ite brought this lawsuit under 42 U.S.C. § 1983 against Defendants Richard M c K in le y ("McKinley"), Tina McKinley ("Tina"), the City of Lee's Summit ("Lee's S u m m it" ), and Lee's Summit Police Chief Kenneth Conlee ("Conlee"). White alleged that the Defendants deprived him of a fair criminal trial. The details of White's allegations are s e t forth in the Court's order on McKinley's alternative motions for judgment as a matter of la w , new trial, and amended judgment.

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Defendants Lee's Summit and Conlee were dismissed with prejudice from the case in September 2006. As part of the settlement, Lee's Summit agreed to indemnify any ju d g m e n t against McKinley. In August 2008, after a two-week trial on White's § 1983 c la im s , the jury returned a verdict in favor of White, awarding him $14 million in damages, $ 1 million against McKinley in punitive damages, and $1 million in punitive damages against T in a . White brings his motion for attorney fees and costs on the basis that he qualifies as a § 1983 prevailing party entitled to reimbursement under 42 U.S.C. § 1988. Attorneys from tw o law firms represented White: Loevy & Loevy in Chicago and the McCallister Law Firm in Kansas City. White states that the McCallister Law Firm handled the early stages of litig a tio n and, after it brought Loevy & Loevy in to assist, the two firms generally split the w o rk relatively evenly. The following chart shows the claimed numbers of hours and billable ra te for each attorney:

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F irm L o e v y & Loevy

A tto rn e y M ic h a el Kanovitz A rth u r Loevy J o n a th a n Loevy F irm Total:

H o u rs 1 ,2 3 9 .2 5 1 4 6 .5 8 4 .7 5 1 ,4 0 0 1 ,2 0 6 .5 0 3 3 4 .7 5 6 2 0 .5 0 1 ,1 6 5 .7 5 2 ,1 0 0 3 ,5 0 0

R a te $ 3 9 5 .0 0 $ 4 7 0 .0 0 $ 3 9 5 .0 0

T o ta l $ 4 8 9 ,5 0 3 .7 5 $ 6 8 ,8 5 5 .0 0 $ 3 3 ,4 7 6 .2 5 $ 5 9 1 ,8 3 5 .0 0

M c C a llis te r Law F i rm

B ria n McCallister C yn th ia Short C h ris to p h e r L a w le r P a r a le g a ls F irm Total:

$ 4 0 0 .0 0 $ 4 0 0 .0 0 $ 2 5 0 .0 0 $ 6 0 .0 0

$ 4 8 2 ,6 0 0 .0 0 $ 1 3 3 ,9 0 0 .0 0 $ 1 5 5 ,1 2 5 .0 0 $ 6 9 ,9 4 5 .0 0 $ 8 4 1 ,5 7 0 .0 0 $ 1 ,4 3 3 ,4 0 5 .0 0

G ra n d Total

W h ite seeks reimbursement for $170,733.86 in taxable expenses and other costs. White s u p p o rts his motion with the following evidence: billing records; affidavits of his own a tto rn e ys concerning their qualifications, experience, and billing rates; affidavits of other a tto rn e ys ; case law; and detailed billing records and expense receipts. McKinley was the o n ly responding defendant. II. D is c u s s io n A. P u r p o s e of Fee Awards

M c K in le y does not dispute White's status as a prevailing party entitled to an award of re a so n a b le attorney fees and costs under 42 U.S.C. § 1988. The Eighth Circuit has explained th e reasons behind § 1988's provision for fee and costs awards:

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C o n g re ss intended that "[i]n computing the fee, counsel for prevailing parties s h o u ld be paid, as is traditional for attorneys compensated by a fee-paying client, `for a ll time reasonably expended on a matter.' " S.Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913. The primary purpose of this f o rm u la tio n is to promote diffuse private enforcement of civil rights law by allowing th e citizenry to monitor rights violations at their source, while imposing the costs of rig h ts violations on the violators. See Id. A plaintiff bringing a civil rights action " d o e s so not for himself alone but also as a `private attorney general,' vindicating a p o licy that Congress considered of the highest priority. If successful plaintiffs were ro u tin e ly forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest...." Newman v. Piggie Park Enterprises, Inc., 3 9 0 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). In order for such a policy to be effective, Congress felt it appropriate to shift t h e true full cost of enforcement to the guilty parties to eliminate any obstacle to e n f o rc e m e n t. "It is intended that the amount of fees awarded under [§ 1988] be g o v e rn e d by the same standards which prevail in other types of equally complex F e d e r a l litigation, such as antitrust cases...." S.Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5913. F e e awards must be structured so that attorneys of quality and experience with o th e r profitable demands upon their time will not need to sacrifice income available i n alternative enterprises in order to effect a public policy intended to protect all c itiz e n s. In other words, "the market rate of legal time is the opportunity cost of that tim e , the income foregone by representing this plaintiff." Gusman v. Unisys Corp., 9 8 6 F.2d 1146, 1149 (7th Cir.1993) (quoting Barrow v. Falck, 977 F.2d 1100, 1105 (7 th Cir.1992)). Any other rule would relegate civil rights enforcement (and the law th a t results) to those lawyers with below-market billing rates. The rates for these la w ye rs are usually below market for a reason. A refusal to pay for experience and e x p e rtis e will exact a cost in the form of inexperience and, perhaps, incompetence. C a s e y v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993). With these purposes in m in d , the Court considers White's motion. B. L o d e sta r

T h e starting point for determining a reasonable attorney fee is the "lodestar" c a lc u la tio n : that 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); Hanig v. Lee, 415 4

F .3 d 822, 825 (8th Cir. 2005). The party seeking the award should submit documentation su p p o rting the requested amount, making a good faith effort to exclude hours that are e x c e s s iv e , redundant or otherwise unnecessary. Hensley, 461 U.S. at 434; see also Philipp v . ANR Freight System, Inc., 61 F.3d 669, 675 (8th Cir. 1995) (reducing fee because of in a d e q u ate documentation). In other words, counsel must exercise "billing judgment" and b e mindful that "hours that are not properly billed to one's client also are not billed to one's a d v e rs a ry pursuant to statutory authority." Hensley, 461 U.S. at 434 (citation omitted). T o determine the lodestar amount, courts may consider: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the s k ill requisite to perform the legal service properly; (4) the preclusion of employment b y the attorney due to acceptance of the case; (5) the customary fee; (6) whether the f e e is fixed or contingent; (7) time limitations imposed by the client or the c irc u m s ta n c es ; (8) the amount involved and the results obtained; (9) the experience, re p u ta tio n , and ability of the attorneys; (10) the "undesirability" of the case; (11) the n a tu re and length of the professional relationship with the client; and (12) awards in s im ila r cases. United HealthCare Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 575 n.9 (8th Cir. 1 9 9 6 ) (citing Hensley, 461 U.S. at 434 n.3). Courts may exclude from lodestar calculations h o u rs not reasonably spent on litigation. Keslar v. Bartu, 201 F.3d 1016, 1018 (8th Cir. 2 0 0 0 ) (affirming district court reduction of fee award based on an unreasonable number of b ille d hours where the district court referred to defendant's brief rather than detail the basis f o r its reduction). There is a strong presumption that the lodestar calculation represents a re a s o n a b le fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992).

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1.

A m o u n t Involved and Results Obtained

" T h e most critical factor in assessing fees is the degree of success obtained." Fish v. S t. Cloud State Univ., 295 F.3d 849, 853 (8th Cir. 2002) (citing Hensley, 461 U.S. at 434). B y any measure, the $16 million judgment in this case is substantially favorable. Though p erc en tage is not a separate consideration in lodestar calculations, the fees requested here are les s than nine percent of the judgment, substantially below what a contingent fee would n o rm ally be. Fees in civil rights cases sometimes outweigh judgments entirely. Moreover, W h ite's attorneys secured an agreement from Lee's Summit to indemnify McKinley in full ­ an agreement which may render enforceable an otherwise uncollectible judgment. The re s u lts obtained weigh strongly in favor of granting White's motion. 2. T im e /L a b o r Required

M c K in le y takes issue with the number of attorneys representing White and the number o f hours claimed by them. As to the number of attorneys, McKinley argues that White is not e n t itle d to reimbursement for the services of each of his several attorneys' services, e m p h a s iz in g that McKinley himself was represented by two attorneys and one paralegal. As to the hours of those attorneys, McKinley cites only to his own billing records for his a r g u m e n t that White's attorneys' hours are excessive. White's attorneys expended a little m o r e than twice the 1,600 hours spent by McKinley's attorneys. C o u rts may reduce attorney hours for inefficiency and duplication of services in cases w h e re more than one attorney is used. A.J. ex rel. L.B. v. Kierst, 56 F.3d 849, 865 (8th Cir.

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1 9 9 5 ). However, the "use of more than one attorney in multiple party litigation has been r e c o g n iz e d by . . . [the Eighth Circuit] as both desirable and common." Id. Also, the number o f hours worked by opposing counsel "is not an immutable yardstick of reasonableness." S h a w v. AAA Eng'g & Drafting, 213 F.3d 538, 542-43 (10th Cir. 2000) (finding no abuse of d is c re tio n in the district court's approval of plaintiff's counsel's hours, despite plaintiff's c o u n se l having spent nearly twice as many hours prosecuting as defense counsel did d ef en d ing the case). T h e re are several reasons why the number of White's attorneys and their hours need n o t match those of McKinley's attorneys. It appears from the billing records in this case that W h ite had six attorneys representing him. More than seven different law firms and over tw e n ty attorneys represented various Defendants during this litigation, nine from McKinley's c u rre n t counsel's firm. Because McKinley successfully objected to White's motion to have th e teams of lawyers representing other Defendants produce their billing records, these n u m b e r s do not include attorneys from other firms who may not have filed appearances. T h u s , Defendants - and McKinley alone - had more lawyers than White. More specifically, McKinley complains of the approximately six lawyers and one p a ra le g a l White's team devoted to the trial. This number was not unreasonable given the v o lu m e of evidence and complexities of the case. It was acceptable for attorneys on White's tria l team to observe the trial where they were obviously assigned with researching legal is s u e s and examining witnesses whose testimony overlapped with others on the stand.

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In d e e d , there were times during the trial when it was apparent that McKinley's trial team q u ite frankly could have used additional help. White's trial team was not unreasonably large. A s for hours, unlike White's counsel, McKinley's lawyers were able to economize on b illin g through coordinating their efforts with other defense counsel. McKinley's billing re c o rd s indicate that his counsel frequently split discovery and briefing tasks with the teams o f attorneys representing other Defendants during pretrial litigation. White cites to portions o f McKinley's counsel's billing records, indicating multiple consultations and meetings with o th e r Defendants' counsel. Also, the total defense hours may well have been greater than those of White. Though th e available records show that White's attorney's expended twice the hours of McKinley's a lo n e , White was fighting four teams of attorneys representing various Defendants. A lth o u g h the records of attorneys representing Defendants other than McKinley are not part o f the record, their cumulative hours may be more than the hours spent by White alone. In addition, White bore the burden of proof in this case. It is reasonable that his c o u n se l's hours would exceed those of McKinley. The degree of success in this case supports a finding that the number of hours spent was reasonable: White's attorney's diligence in o rg a n iz in g , researching, conducting discovery, negotiating, briefing, arguing and presenting e v id e n c e in this case lead to a significant verdict in favor of White. a. P a r tic u la r Billing Issues

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M c K in le y argues that certain hours should be cut from White's fee award. With no s u p p o rtin g evidence or citation and only limited argument, he randomly suggests slashing the h o u rs billed by various White attorneys for certain tasks. The Court has considered M c K in le y's arguments and summarily addresses those that bear noting. While the Court does n o t doubt that White's attorneys worked the hours charged, certain hours have been cut b e c au s e the Court cannot find that they would reasonably have been charged to a fee-paying c lien t: M r. Kanovitz's Hours of Trial Preparation Before and During Trial: It was not u n re a so n a b le for Mr. Kanovitz to spend six weeks preparing for this particular trial. Billing approximately nine hours per day before trial and fourteen hours p e r day during trial was not unreasonable for an attorney with Mr. Kanovitz's le v e l of responsibility. His preparation was apparent during trial. M r. Kanovitz's Hours Regarding Juror Questionnaires: The time entries on S e p te m b e r 8 and 18 reflect an excessive number of hours devoted to issues re la te d to researching the questionnaires ­ over nine. The time awarded for th o se dates will be cut by three hours total. H o u r s on McKinley's, Tina's, Conlee's, and White's Daughter's Depositions: T h e use of two (or more) attorneys was appropriate on these depositions. Each w itn e ss (and/or Defendant) was critical and had changed their stories over the c o u rs e of this case and White's criminal case. M r. McCallister's Hours in Drafting the Complaint: The time entries for this ta s k show an excessive number of hours ­ over one-hundred. The time a w a rd e d for the task will be cut by eighteen hours total. M r. McCallister's Hours in Preparing Discovery Requests: The time entries f o r this task show an excessive number of hours ­ approximately thirty-five. T h e time awarded for the task will be cut by five hours total. M r. McCallister's Hours in Preparing Witnesses: The time entries for p re p a rin g witnesses cannot be found unreasonable. Different witnesses may n e e d more preparation time and it cannot be determined in advance how c ritic a l their testimony will be to a case. M r. McCallister's Hours Regarding October 26, 2005 Mediation: The time e n trie s for this task are not unreasonable.

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M r. McCallister's and Mr. Lawler's Hours Reviewing Documents: The time e n trie s for reviewing the massive amount of documents in this case are not u n r e a so n a b le . M r. McCallister's and Mr. Lawler's Hours Traveling to Chicago: The time e n trie s for one trip to Chicago are reasonable. M r . McCallister's and Mr. Lawler's Hours on Dr. Esplin's deposition: The use o f two attorneys was appropriate for this expert witness. M r. Lawler's Miscellaneous Hours: It appears there is a duplicate entry for Mr. L a w ler 's time on May 21, 2008; the second 2.5 hour entry will be cut. His e n tries for August 30, 31, and September 3 do not relate to legal work and will b e cut. L e g a l Research: White's attorney's strategic choices concerning legal research c a n n o t be found to be unreasonable. H o u rs on Sanctions Motions: The motion is not frivolous. The time entries f o r this task are not unreasonable. L e g a l Assistant's Time in Preparing Documents: The time entries for this task a re not unreasonable. L e g a l Assistant's Time in Preparing Trial Exhibits/Trial Notebooks: The time e n trie s for this task show an excessive number of hours ­ over 375 and 175, r e sp e c t iv e l y. The time awarded for the task will be cut by 125 and 50 hours, re s p e c tiv e ly.

The Court itself has spent hundreds of hours on this case. Other than as noted above, the C o u rt does not find unreasonable the number of hours expended by White's attorneys. 2. E x p e r ie n c e , Reputation, and Ability of the Attorneys

W h ite 's attorneys have significant experience, positive reputations, and ­ as d e m o n s tra te d throughout this litigation ­ ability. Each of White's attorneys has submitted an a f f i d a v i t concerning his or her experience. A cursory review of national legal research d a ta b a se s demonstrates that White's Loevy & Loevy attorneys in particular have had e x te n siv e civil rights trial experience and success. White's filings and the attorneys' trial w o rk were of high quality by any measure; they demonstrated skill in organizing their case,

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m a k in g legal arguments, and presenting evidence. The experience, reputation, and ability o f White's attorneys weigh significantly in favor of granting his motion. 3. " U n d e s ir a b ilit y " of the Case, Novelty/Difficulty of the Questions, S k i ll Required, and Awards in Similar Cases

G iv e n the accusations of child molestation, this was not an easy case and many la w ye rs would have turned it down. Significantly, much of the evidence favoring White was c ir c u m s ta n tia l. The legal issues in this case were complex, the facts were many and dramatically co m p lica te d for a civil rights case. The case took two weeks to try even after the Court e lim in a te d large, inadmissible portions of the evidence. Further, White was faced with the f a ct that the prosecutors had known about some of the evidence White claimed McKinley s u p p r e ss e d . In addition, the trial originally scheduled was delayed at the last minute because o f a futile appeal on the qualified immunity issue. Applying constitutional law so as to p r e v a il in this case required a level of skill and experience not possessed by most lawyers. A s in many civil rights cases, there was a very real risk of no judgment. M o re o v e r, even if the attorneys could secure a judgment in favor of White, there was a very real risk that it would be unenforceable. There was relatively little available insurance c o v e ra g e , with various Defendants' insurers claiming limited or no coverage. White's counsel took on the case despite these challenges. They took over thirty d e p o sitio n s , examined thousands of pages of documents, and prevailed in pretrial motion p ra c tic e as well as on interlocutory appeal just to get the case to the trial in which they 11

p re v a ile d . Through this work and negotiation, they made the judgment more enforceable by m e a n s of settlement with Lee's Summit and Conlee. The "undesirability" of White's case, th e difficulties attendant to White's claims, the awards in similar cases, and the skill required to establish them weigh in favor of granting his motion. 4. O p p o rtu n ity Costs

T h e number of hours devoted by White's attorneys to his case represents forgone o p p o rtu n ity costs. Neither firm is large. Though White does not name specific work his la w ye rs turned down as a result of his case, the hours spent no doubt could have been d e v o te d to at least some other work. McKinley argues that the opportunity costs to both law firms should not be considered w h ere , in post-trial motions, White requested deadline extensions on the basis that Mr. K a n o v itz was the lead researcher and draftsman and was occupied with other matters. All c a se s have lead attorneys; having one lead attorney on a case does not negate the opportunity c o sts paid by all attorneys who forego other pursuits in favor of civil rights litigation. The o p p o rtu n ity costs incurred by White's attorneys weigh in favor of granting his motion. 5. P r e v a ilin g Market Rates

W h ite submits various evidence in support of the hourly rates he suggests in his m o tio n . This includes an affidavit from Patrick Stueve, a Kansas City litigation attorney, a f f irm in g the reasonableness of the rates charged by White's Kansas City attorneys. White a ls o submits evidence that several courts have approved Loevy & Loevy's fee petitions

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a lm o s t in their entirety in the past. He cites to cases approving rates similar to those he s u g g e sts for Mr. Kanovitz, Jon Loevy, and Mr. Arthur Loevy personally. He submits an af fid av it indicating that recent Chicago billing rates at large firms range from $440 (for a 1 9 9 9 graduate) to $685 an hour (for a 1964 graduate). He submits a Missouri Lawyers W e e k ly article detailing local Kansas City billing rates. White cites to various cases a p p ro v in g rates higher than those he suggests in his motion for both his Chicago and Kansas C ity lawyers. Finally, White cites to the "Laffey Matrix" ­ a chart created by the United States A tto rn e y's Office for the District of Columbia. White cites to the several courts throughout th e nation which have relied on the matrix as a guideline for reasonable rates. Even adjusting f o r locality, the matrix would dictate a rate of $426 per hour for Mr. Kanovitz and Jon Loevy (w h o are seeking $395 per hour), $484 per hour for Mr. Arthur Loevy (who is seeking $450 p e r hour), $451 per hour for Mr. McCallister and Ms. Short (who are seeking $400 per h o u r),$ 2 6 1 per hour for Mr. Lawler (who is seeking $250 per hour), and $130 per hour for p a ra leg a ls (who are seeking $60 per hour). The rates suggested in White's motion fall c o m f o r ta b ly within those suggested by his supporting evidence. N o n e th e les s, McKinley takes issue with the hourly rates White suggests. First, M c K in le y argues that White's Chicago lawyers should not be paid Chicago rates. He states th a t the appropriate rate is that within the community, which, in this case, is Kansas City. A p p a re n tly, based on McKinley's attorney's "recollection," McKinley suggests that $250 is

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th e maximum hourly rate for civil rights litigation in the Kansas City area. Without e v id e n tia ry support, McKinley suggests the following allowable hourly rates for White's a tto rn e ys: $275 for Mr. Kanovitz; $250 for Mr. McCallister, Arthur Loevy, and Ms. Short; a n d $150 for Mr. Lawler. He does not suggest a rate for Jon Loevy. " A s a general rule, a reasonable hourly rate is the prevailing market rate, that is, the o r d in a r y rate for similar work in the community where the case has been litigated." Moysis v . DTG Datanet, 278 F.3d 819, 828,-829 (8th Cir. 2002) (citation omitted). However, there a re times when limiting appropriate rates to those of the community where a case has been litig a te d may not be appropriate. In Case v. City of Cabool, 12 F.3d 799 (8th Cir. 1993), the E ig h th Circuit explained: T o limit rates to those prevailing in a local community might have the effect of lim itin g civil rights enforcement to those communities where the rates are sufficient to attract experienced counsel. Civil rights would be more meaningful, then, in those co m m u n ities (large cities) where experienced attorneys can command their customary f e e s . This result would be in direct contravention of the purpose of diffuse e n f o rc e m e n t through the `private attorneys general' concept. Id . at 805. In addition, the Eighth Circuit has affirmed approval of higher hourly rates based o n the specialized skill of counsel. See Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1 9 9 1 ) (affirming rate based on that of comparable nationally-prominent federal civil rights co u n sel, rather than Iowa counsel, because of attorney's status as recognized national expert i n area of civil rights law). Given the extraordinary nature of White's case ­ faced with u n s ym p a th e tic clients, difficult facts, and the conspiratorial nature of the alleged C o n stitu tio n a l violations ­ it was not unreasonable for White's Kansas City attorneys to call 14

in support from attorneys in Chicago with a specialization in difficult civil rights cases. Very f e w attorneys could have undertaken such a complex case, and McKinley offers no evidence o f comparably successful and experienced firms or attorneys within the Kansas City market. A s such, an award based on Chicago rates is appropriate. A s evidenced by the exhibits to White's motion, his Chicago attorneys' rates are re a s o n a b le for Chicago. While it would not necessarily be appropriate to award Loevy & L o e v y attorneys fees identical to those charged by large Chicago firms, their suggested rates f a ll well-below large-firm rates. At the same time, their work ­ in conjunction with that of th e McCallister Law Firm ­ reflected a skill, tenacity, and marshaling of resources c o m p a ra b le to that which would have been provided by a high quality large firm. R e g a rd le ss of whether Chicago or Kansas City rates should apply, White has d e m o n s tra te d that the suggested hourly rates for all of his attorneys are reasonable. In other m a rk e ts smaller than Chicago, courts have approved rates higher than those requested by W h ite 's Chicago - and Kansas City - attorneys for counsel with civil rights expertise. See, e .g ., Republican Party of Minn v. White, 456 F.3d 912 (8th Cir. 2006) (approving, in M in n e s o ta case, rate of $425 per hour). "Once an attorney provides evidence of his billing rate, the burden is upon the d e f e n d a n t to present evidence establishing a good reason why a lower rate is essential. . . . A defendant's failure to do so is essentially a concession that the attorney's billing rate is r e a so n a b l e ." People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 90 F.3d 1307,

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1 3 1 3 (7th Cir. 1996) (citation omitted) (finding abuse of discretion in discounting hourly rate w h e re the attorney seeking a fee award had produced sample of other billing, evidence of fee a w a rd s in similar cases, and billing rates of other attorneys at the same firm). White's p ro p o s e d hourly rates are reasonable. 6. F ix e d vs. Contingent Fee

W h ite 's attorneys worked on a contingent basis. Given the case, this meant a very real ris k of earning zero dollars per hour.1 Without arguing for a separate enhancement above the lo d e sta r calculation, White argues that the contingent nature of his fees justifies an hourly ra te toward the higher end of the reasonable spectrum. McKinley does not respond to W h ite's argument in this regard. Though the hourly rates suggested in White's motion are rea so n ab le regardless of whether they were fixed or contingent, their contingent nature w e ig h s in favor of granting his motion. See Blanchard v. Bergeron, 489 U.S. 87, 91 (1989) (f in d in g that contingent fee arrangement did not set ceiling on § 1988 recoverable fees; "The . . . contingency-fee factor is simply that, a factor. The presence of a pre-existing fee ag ree m en t may aid in determining reasonableness."). 7. N a tu r e and Length of Relationship with Client

As evidence of the risks associated with such cases, Jon Loevy submitted an affidavit discussing other cases in which Loevy & Loevy spent hundreds of thousands of dollars and thousands of hours on losing efforts. See also Manning v. United States, 546 F.3d 430, 438 (7th Cir. 2008) (affirming district court's vacating of $6.5 million jury verdict for Loevy & Loevy client). 16

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W h ile the parties do not separately address this factor, at least one White attorney had a longstanding relationship with him. Ms. Short participated in White's criminal defense te a m , and was intimately familiar with the case. Her experience with the facts of this case n o doubt brought invaluable benefit to his pursuit of this case. At least as to her fees, this f a cto r weighs in favor of granting White's motion. B. A p p o rtio n in g Fees/Costs Among Defendants

M c K in ley argues that fees must be apportioned among the various Defendants to this m a tter. He asserts that Defendants Lee's Summit and Conlee were dismissed from this suit w ith prejudice, with White to assume the fees and costs of the action against them. M c K in le y notes that Tina was his co-defendant at trial. McKinley argues that White has not a n d cannot accurately apportion fees between the Defendants by evaluating individual s e rv ic e s. McKinley claims that he should be charged with one-fourth of the reasonable fees a ss o c ia te d with this case before the September 12, 2006 settlement with Lee's Summit and C o n le e , and one-half of the reasonable fees associated with this case from that date through th e rendering of the jury verdict. McKinley makes this argument without citation. W h e r e a plaintiff's claims center on a common core of facts, counsel's time will be d e v o te d generally to the litigation as a whole, making it difficult to divide hours on a claimb y-c la im basis. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). When determining fee a w a r d s in such cases, courts must focus on the "overall relief obtained by the plaintiff in re la tio n to the hours reasonably expended on the litigation" as opposed to considering the

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c la im s discretely. Id. See also Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 497 (8 th Cir. 2002) (finding that district court abused its discretion in apportioning costs among lo s in g plaintiffs in antitrust matter where apportionment was based on erroneous theory) (c itin g Walker v. United States Dep't of Hous. & Urban Dev., 99 F.3d 761, 773 (5th Cir. 1 9 9 6 ) (finding joint and several liability for attorney fees was appropriate where parties had a joint legal team and shared witnesses and there was a single, indivisible injury)). In civil rig h ts actions, "it is frequently appropriate to hold all defendants jointly and severally liable f o r attorneys' fees in cases in which two or more defendants actively participated in a c o n s titu t io n a l violation." Turner v. District of Columbia Bd. of Elections & Ethics, 354 F.3d 8 9 0 , 897-98 (D.C. Cir. 2004) (internal punctuation omitted) (citing Herbst v. Ryan, 90 F.3d 1 3 0 0 , 1305 (7th Cir. 1996)). "Section 1988 does not permit a court to inquire into

d e f en d a n ts ' comparative fault where to do so obstructs Congress' purpose of compensating s u c c e s s f u l private attorneys general." Id. at 898 (citation omitted). However, where portions of a suit are not fairly attributable to other parties, courts m a y apportion fees and expenses to the party who caused them. Id. at 899. Courts doing so d o not allocate hours on the per capita basis suggested by McKinley. Instead, they seek to a p p o rtio n time based on severable claims. See Hendrickson v. Branstad, 934 F.2d 158 (8th C ir. 1991) (approving reduction of fee award against remaining defendants by ten percent w h e re those defendants were added two years after the case commenced); Jenkins by Agyei v . State of Mo., 838 F.2d 260, 264-65 (8th Cir. 1988) (affirming fifteen percent reduction in

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f e e award where the plaintiff prevailed as to some but not all of the defendants, based on H e n sle y 's "degree of success" factor). When apportioning fees, the degree of culpability of d ef en d an ts as well as time plaintiffs are forced to litigate against respective defendants are a p p ro p ria te considerations in determining allocation of fee awards. Id. This case focused on McKinley and his actions. McKinley argues that time relating to Lee's Summit and Conlee in particular should not be charged to McKinley. However, th o s e Defendants were charged with condoning or covering up McKinley's misconduct and c la im s against them were intimately tied to claims against McKinley. White's pursuit of L e e 's Summit and Conlee ultimately resulted in their agreement to indemnify a judgment a g a in s t McKinley. See generally Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331 (1st Cir. 2 0 0 8 ) (affirming fee award for efforts to collect civil rights judgment). The work pertaining to Lee's Summit and Conlee cannot be severed. McKinley is not entitled to the per capita r e d u c tio n in fee responsibility he claims. C. E x p e n s es

W h i te requests reimbursement for $170,733.86 of taxable expenses and other costs. W ith o u t explanation, but apparently relying on his per capita apportionment theory, M c K in le y requests that the amount attributable to him be reduced to $71,234.48. For the r e a so n s stated above, the Court declines to reduce the cost award as McKinley suggests. H o w e v e r, there is one problem with White's expense request, though the parties do n o t discuss the issue in their briefing. White's expense exhibits include invoices which

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a p p a re n tly charge for computer assisted legal research. Though the rule is controversial, in th e Eighth Circuit, such charges are a component of attorney fees and are not taxable in a d d itio n to a fee award. Standley v. Chilhowee R-IV School Dist., 5 F.3d 319 (8th Cir. 1993); S u n Media Sys., Inc. v. KDSM, LLC, -- F. Supp. 2d --, No. 4:06-cv-106, 2008 WL 4969159 ( S . D. Iowa Nov. 24, 2008) (recognizing disagreement by district courts). As White's request is supported with documentary evidence and for the reasons discussed above, and with the e x c ep tio n of the computer assisted legal research charges, White may recover the expenses a n d other costs requested. II. C o n c lu s io n A c c o rd in g ly, it is hereby ORDERED that White's Motion for an Award of Fees and C o sts [Doc. # 399] is GRANTED in part and DENIED in part as noted in the body of this O rde r.

s / Nanette K. Laughrey NANETTE K. LAUGHREY U n ite d States District Judge D a te d : March 26, 2009 K an sas City, Missouri

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