Doe v. Nebraska State Patrol et al

Filing 227

MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiffs' motion for attorneys' fees and expenses (filing 527 ) is granted in part and denied in part, as follows: Pursuant to 42 U.S.C. § 1988, the plaintiffs are hereby awarded total attorney s' fees against the defendants in the amount of $292,564.88. In all other respects, the plaintiffs' application is denied without prejudice to the plaintiffs' ability to seek taxation of costs pursuant to Fed. R. Civ. P. 54(d)(1 ) and 28 U.S.C. § 1920. Plaintiffs' motion for hearing regarding attorneys' fees and expenses (filing 533 ) is denied. Judgment shall be entered by separate document. Member Cases: 8:09-cv-00456-RGK-CRZ, 4:09-cv-03266-RGK-CRZ, 4:10-cv-03005-RGK-CRZOrdered by Senior Judge Richard G. Kopf. (TCL )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN DOE, et al.,

)
)
Plaintiffs,
)
vs.
)
)
STATE OF NEBRASKA, et al.,
)
)
Defendants.
)
______________________________ )
)
JOHN DOE,
)
)
Plaintiff,
)
)
vs.
)
)
NEBRASKA STATE PATROL,
)
et al.,
)
)
Defendants.
)
______________________________ )
)
JOHN DOE,
)
)
Plaintiff,
)
)
vs.
)
)
STATE OF NEBRASKA, et al.,
)
)
Defendants.
)
______________________________ )

8:09CV456

MEMORANDUM
AND ORDER

4:10CV3266

4:10CV3005

This matter is before the court on the plaintiffs’ motion for attorneys’ fees and
expenses (filing 527) pursuant to 42 U.S.C. § 1988, which authorizes district courts

to award reasonable attorneys’ fees to prevailing parties in civil rights litigation.
Plaintiffs request an award of $751,947.67 in attorneys’ fees related to the merits
litigation, $13,111.88 for preparation of the application for attorneys’ fees, and
$26,182.56 in costs. (Filing 527.) The defendants argue that the amount requested
is unreasonable and should be substantially reduced. (Filing 530, Defs.’ Br. Opp’n
Pls.’ Mot. Attorneys Fees & Expenses.) For the reasons explained below, I will grant
the application in part and deny it in part.
I. BACKGROUND
This litigation began in 2009 in both this court and various state courts. Based
on a broad array of constitutional grounds, several convicted sex offenders, their
family members, and others who were associated with them filed for injunctive and
declaratory relief from several amendments to Nebraska’s Sex Offender Registration
Act (“Act”) that were to become effective on January 1, 2010. The nearly 200
defendants included the State of Nebraska, the Nebraska Attorney General, the
Nebraska State Patrol, the Superintendent of the State Patrol, local prosecutors, and
various law enforcement officers.
The state cases were eventually removed to this court and consolidated into one
lawsuit. In this court, the case involved proceedings on preliminary injunctive relief,
Doe v. Nebraska, 2009 WL 5184328 (D. Neb. Dec. 30, 2009), motions for
certification of state law questions, Doe v. Nebraska, 2010 WL 1568445 (D. Neb. Apr.
15, 2010), cross motions for summary judgment, Doe v. Nebraska, 734 F. Supp. 2d
882 (D. Neb. 2010), discovery disputes, Doe v. Nebraska, 788 F. Supp. 2d 975 (D.
Neb. 2011); Doe v. Nebraska, 2011 WL 2413359 (D. Neb. June 15, 2011), a bench
trial, Doe v. Nebraska, ___ F. Supp. 2d ___, 2012 WL 4923131 (D. Neb. Oct. 17,
2012), and the pending application for attorneys’ fees.
The plaintiffs asserted several constitutional challenges to the legislation,
including claims of double jeopardy, cruel and unusual punishment, equal protection,
2

special legislation, separation of powers, and claims under the First Amendment, Due
Process Clause, Ex Post Facto Clause, Fourth Amendment, and Contracts Clause.
The plaintiffs successfully obtained a preliminary injunction as to certain provisions
of the amended Act. Doe v. Nebraska, 2009 WL 5184328 (D. Neb. Dec. 30, 2009).
At the summary judgment stage, the plaintiffs did not prevail on several of their
claims, but four of those claims went to trial—claims under the First Amendment, the
Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment. Doe v.
Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010). Plaintiffs prevailed on the claims that
went to trial, as summarized in the opinion issued following the bench trial:
Save for Doe 24’s “as-applied” challenge to § 29-4006(2), Neb. Rev.
Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 are
unconstitutional, both facially and as applied to some of the plaintiffs.
As indicated in my decision on the motions for summary judgment, Neb.
Rev. Stat. § 29-4006(2) is unconstitutional under the Fourth Amendment
as to those plaintiffs who were previously convicted of sex crimes, but
who were not on probation, parole, or court-monitored supervision on or
after January 1, 2010. Neb. Rev. Stat. §§ 29-4006(1)(k) and (s) and 28322.05 are unconstitutional under the First Amendment. Neb. Rev. Stat.
§ 28-322.05 is unconstitutional under the Due Process Clause. Neb.
Rev. Stat. §§ 29–4006(1)(k) and (s), 29–4006(2), and 28-322.05 are
unconstitutional under the Ex Post Facto Clause.
Doe v. Nebraska, ___ F. Supp. 2d ___, 2012 WL 4923131, at *37 (D. Neb. Oct. 17,
2012) (footnote omitted). As to Doe 24’s “as-applied” Fourth Amendment challenge
referenced in the quoted paragraph above, I decided that Doe 24’s challenge to Neb.
Rev. Stat. § 29-4006(2) was not ripe. Id.
Thus far, the lead Doe case has resulted in 534 filings and the preparation of at
least 15 briefs by Plaintiffs’ counsel, in addition to numerous motions, indices of
evidence, and discovery documents. As stated by Plaintiffs’ counsel, “the sheer
logistics of managing approximately fifty (50) Doe clients and filing against over two

3

hundred (200) Defendants required a great deal of time.” (Filing 528 at CM/ECF p.
17.)
II. DISCUSSION
In U & I Sanitation v. City of Columbus, 112 F. Supp. 2d 902, 903-04 (D. Neb.
2000), I summarized what I consider to be the applicable law in this circuit regarding
an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. “When an application for
attorney fees is made, the ‘lodestar’ method is used to decide whether it should be
granted, and, if so, how much should be awarded.” U & I Sanitation, 112 F. Supp. 2d
at 903.

This involves (1) deciding whether an award of fees is justified; (2)

determining what fees and expenses are typically charged in the relevant market; and
(3) calculating the “lodestar,” which is the number of hours reasonably expended
multiplied by the applicable hourly market rate for the relevant legal services, with (i)
deductions for excessive, redundant, or otherwise unnecessary work and insufficient
documentation, (ii) enhancements only when the lodestar method will not ensure
competent counsel in future similar cases, and (iii) reductions for partial success
(failure to win on all claims when claims and relief are separate) or incomplete success
(failure to win on all claims when claims and relief are intertwined because it was
necessary to prosecute all related claims to prevail on one). U & I Sanitation, 112 F.
Supp. 2d at 903-04.
Plaintiffs request $751,947.67 in attorneys’ fees for 1,702.4 hours of work
performed by lawyers, paralegals, and law clerks at hourly rates ranging from $85.00
for paralegals and law clerks to $300.00 for senior counsel. (Filing 529-2; Appendix
A to this Memorandum & Order.) The total amount of fees requested incorporates a
15% reduction of hours worked (from 2,002.5 to 1,702.4) “to account for duplication
of effort and the partial and incomplete success of the Plaintiffs’ claims” and a
multiplier of 2.25 to account for “the unusual circumstances of this case and to ensure
adequate and competent counsel will be attracted to similar cases in the future.”
(Filing 529-3 at CM/ECF p. 4 ¶ 29; Filing 528 at CM/ECF p. 21.) In addition to the
4

$751,947.67 in attorneys’ fees for the merits litigation, Plaintiffs request $26,182.56
in costs and $13,111.88 for preparation of the attorneys’ fee application. (Filing 5292; Appendix A to this Memorandum & Order.)
The defendants argue that (1) five of Plaintiffs’ counsel have claimed excessive
hourly rates; (2) a 15% reduction is warranted for partial and incomplete success and
insufficient detail in billing entries; (3) reductions are warranted for duplicity in
billing (98 hours), clerical work (181.40 hours), and unnecessary work involved in
“forum shopping” (83.90 hours); (4) the plaintiffs are not entitled to any enhancement;
(5) the hours claimed for preparation of the attorneys’ fee application should be
reduced due to vague and unspecific billing entries; and (6) Plaintiffs’ $26,182.56 in
requested costs cannot be recovered due to counsels’ failure to file a verified bill of
costs pursuant to this court’s local rules and, in any case, expert witness fees may not
be recovered under 42 U.S.C. § 1988. Applying these reductions, the defendants
propose an award of attorneys’ fees for the merits litigation in the amount of
$228,987.88; $7,840.56 in costs; and $11,379.38 for preparation of the attorneys’ fee
application. (Appendix B to this Memorandum & Order.)
A.

Fees for Merits Litigation

Defendants do not argue that Plaintiffs are not a prevailing party or that they are
not entitled to any attorneys’ fees; rather, the amount of fees is the issue.
1.

Hourly Rates

The defendants claim that five of Plaintiffs’ counsel have claimed excessive
hourly rates: Stuart Dornan ($300), Tom Monaghan ($300), Jason Troia ($225), Josh
Weir ($225), and Rodney Dahlquist ($200). (Filing 530 at CM/ECF pp. 22-25.) I
disagree.

5

“As a general rule, a reasonable hourly rate is the prevailing market rate, that
is, ‘the ordinary rate for similar work in the community where the case has been
litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828-29 (8th Cir. 2002) (quoting
Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir.2001)). See also Farmers Co-op Co. v.
Senske & Son Transfer Co., 572 F.3d 492, 500 (8 th Cir. 2009) (“relevant community”
for determining hourly rates is place where case was tried). “In determining whether
a fee is reasonable, the special skill and experience of counsel should be reflected in
the reasonableness of the hourly rates,” Hendrickson v. Branstad, 934 F.2d 158, 164
(8 th Cir. 1991) (internal quotation & citation omitted), and “district courts may rely on
their own experience and knowledge of prevailing market rates.” Hanig v. Lee, 415
F.3d 822, 825 (8 th Cir. 2005).
The plaintiffs have filed declarations (Filing 529-3) outlining their counsels’
legal education, training, background, and experience—both generally and in civil
rights litigation. Attorney Stuart Dornan 1 of Dornan, Lustgarten & Troia PC LLO
graduated from law school in 1983; served as a Special Agent with the FBI for three
years where he investigated and prosecuted crimes involving sexual assault; served
as Douglas County Attorney and as a hearing examiner with the Nebraska Equal
Opportunity Commission; is on the Board of Directors of the Nebraska Criminal
Defense Attorneys’ Association and serves on the Federal Practice Committee for the
District of Nebraska; has an AV rating with Martindale-Hubbell; has been named a
Great Plains Super Lawyer and a Top 100 Trial Lawyer by the National Trial Lawyers

1

For purposes of brevity, I discuss the background of only those attorneys
singled out by Defendants as having excessive hourly rates. The defendants’ main
argument regarding the alleged inflated nature of these attorneys’ hourly rates is based
on fee requests filed in cases from other courts, such as Douglas County Court, Sarpy
County Court, and Douglas County District Court. (Filing 531-8; Filing 531-9; Filing
531-10.) Suffice it to state that there is no evidence that any of these cases was
remotely similar in complexity, size, and nature of the Doe cases under consideration
here.
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Association; and is the president-elect of the Omaha Bar Association and a fellow
with the Nebraska Bar Association. (Filing 529-3 at CM/ECF p. 2.)
Attorney Tom Monaghan graduated from law school in 1972, was the United
States Attorney for the State of Nebraska from 1993 to 2001, and was the Director of
the Department of Justice with the United Nations in Kosovo from 2004 to 2006.
Over the last 40 years, he has appeared regularly in the United States District Courts
representing both plaintiffs and defendants in a variety of complex criminal and civil
cases. (Filing 529-3 at p. 7.)
Attorney Jason Troia graduated from law school in 1999, became a partner with
Dornan, Lustgarten & Troia PC LLO in 2008, and has appeared regularly in the
United States District Court for the District of Nebraska over the past 13 years,
litigating a “plethora of constitutional issues in criminal cases.” (Filing 529-3 at
CM/ECF p. 14.) Josh Weir graduated from law school with honors in 2006 and was
involved in complex immigration and habeas litigation at two law firms before he
joined the Dornan, Lustgarten law firm, where he became partner in 2010. (Filing
529-3 at CM/ECF p. 17.) Rodney Dahlquist has engaged in a “broad general civil
litigation practice” since his graduation from law school with honors in 2008, and he
is an associate attorney with Dornan, Lustgarten & Troia, PC LLO. (Filing 529-3 at
CM/ECF p. 20.)
The plaintiffs have also filed the declarations of Amy A. Miller, Legal Director
of ACLU Nebraska, and Thomas M. White, a Nebraska attorney who has been
practicing law for almost 30 years. Miller has practiced constitutional law exclusively
since 1999, has been responsible for handling a “number of cases of first impression
regarding constitutional violations in state court, federal court and before
administrative bodies,” and has made presentations on federal civil rights law at
several national conventions and for the Nebraska Bar. She is familiar with the level
of experience and expertise of Plaintiffs’ counsel and with the typical hourly rates
charged in the Omaha, Nebraska, market for representation in civil rights cases: “[I]t
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is customary in the Omaha market for partners to charge fee-paying clients $300.00
per hour, and for associates to charge between $150.00 and $200.00 per hour. . . . It
is also customary to charge clients for paralegal/law clerk time expended, as well as
costs and advances incurred by a law firm.” (Filing 529-5 at CM/ECF p. 2.)
Thomas White, who has “developed some expertise in the area of civil rights”
by handling several federal discrimination and civil rights matters in his nearly three
decades of practice, states “it is customary in the Omaha market for partners to charge
fee-paying clients $300.00 per hour, and for associates to charge $200.00. Further,
it is customary to charge clients for paralegal/law clerk time expended on a case.”
(Filing 529-5 at CM/ECF p. 4 ¶ 6.) White believes that the hourly rates charged by
attorneys Rodney Dahlquist ($200), Stuart Dornan ($300), Tom Monaghan ($300),
Jason Troia ($225), and Josh Weir ($225) “are fair and reasonable and represent
market rates for this area for the services of attorneys and their staff given the level
of expertise, skill and experience” of these individuals and their firm. (Id. ¶¶ 4-7.)
I conclude that each of these attorneys’ hourly rates are reasonable in light of
their experience; the prevailing market rates in Lincoln and Omaha, Nebraska; and the
complexity and size of the Doe cases. See, e.g., Riley v. Sun Life & Health Ins. Co.,
No. 8:09CV303, 2012 WL 182245, at *7 (D. Neb. Jan. 20, 2012) (Smith Camp, C.J.)
(average hourly rates of $345, $290, $212, and $185 for plaintiff’s attorneys in ERISA
case were reasonable for the Omaha, Nebraska, market in comparable cases); ElTabech v. Clarke, No. 4:04CV3231. 2011 WL 1979847 at *3 (D. Neb. May 20, 2011)
(Bataillon, C.J.) (“Charges greatly in excess of $128.00 [PLRA hourly rate cap] are
reasonable for civil rights cases in this legal market.”); Kellogg v. Nike, Inc., No.
8:07CV70, 2010 WL 323994 (D. Neb. Jan. 20, 2010) (Bataillon, C.J.) (hourly attorney
billing rates of $175 to $335 were reasonable in complex patent case in Omaha,
Nebraska, market); Sheriff v. Midwest Health Partners, P.C., No. 8:07CV475, 2009
WL 2992513, at *10 (D. Neb. Sep. 16, 2009) (Thalken, M.J.) (in Title VII action,
Omaha attorneys’ hourly rates of between $200 and $300 appeared consistent with
hourly rates in the relevant market based on evidence in the record); Chief Automotive
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Systems, Inc. v. Asterino, Nos. 4:97CV3017 & 8:07CV58, 2008 WL 151271, at *4 (D.
Neb. Jan. 11, 2008) (Kopf, J.) (awarding attorneys’ fees as part of civil contempt
sanctions and finding that hourly rates of $115 to $295 were within range lawyers
practicing in this court charge for work of similar complexity); Developmental
Services of Nebraska, Inc. v. City of Lincoln, No. 4:04CV3272, 2007 WL 1959244,
at *1 (D. Neb. July 2, 2007) (Kopf, J.) (awarding $250,000 in attorneys’ fees in Fair
Housing Act case after reducing hourly rates to between $125 and $300 to bring in
line with relevant market for lawyers of comparable skill and experience).
2.

Reduction for Partial/Incomplete Success & Lack of Detail

Defendants next argue that a 15% reduction is warranted for partial and
incomplete success and insufficient detail in billing entries. (Filing 530 at CM/ECF
p. 21.) Plaintiffs’ counsel agree, and they have filed declarations stating that they
have applied a 15% reduction in hours spent on this case “to account for duplication
of effort and the partial and incomplete success of the Plaintiffs’ claims.” (Filing 5293 at CM/ECF p. 4 ¶ 29; Filing 529-3 at CM/ECF p. 7 ¶ 12; Filing 529-3 at CM/ECF
p. 11 ¶ 19; Filing 529-3 at CM/ECF p. 14 ¶ 13; Filing 529-3 at CM/ECF p. 18 ¶ 15;
Filing 529-3 at CM/ECF p. 22 ¶ 20; Filing 529-3 at CM/ECF p. 25 ¶ 13.) Therefore,
I shall apply a 15% reduction in hours spent on this litigation.
3.

Reductions for Duplicity, Clerical & Unnecessary Work

In calculating the hours reasonably expended by Plaintiffs’ counsel in this
litigation, I must review the records submitted by counsel, verify the accuracy of the
records, and deduct excessive, redundant, and otherwise unnecessary work. U & I
Sanitation, 112 F. Supp. 2d at 904. The defendants correctly maintain that reductions
are warranted in this case for duplicity in billing (98 hours), clerical work (181.40
hours), and unnecessary work for “forum shopping” (83.90 hours).

9

“A court may reduce attorney hours, and consequently fees, for inefficiency or
duplication of services in cases where more than one attorney is used.” A.J. by L.B.
v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995). A reduction of the lodestar for duplicative
billing is justified here. The customary practice in the Omaha, Nebraska, legal market
is that “bills reflecting conferences in which sometimes as many as 6 or 7 attorneys
and/or paralegals have attended an intra office conference . . . is unusual and most
likely excessive.” (Filing 531-1, Aff. Mark C. Laughlin at CM/ECF p. 3.) Some of
the evidence submitted by Plaintiffs indicates billing practices contrary to this local
custom.
For example, on February 15, 2010, four attorneys (Dornan, Monaghan, Troia,
and Dahlquist) participated in a pretrial strategy meeting, and each of them billed for
their time.

Additional strategy meetings, resulting in each of the participating

attorneys billing separately for their time, were held on September 29, 2010, January
25, 2012, and June 20, 2012. (Filing 529-1 at CM/ECF pp. 25, 44, 50.) As compiled
in a specific and detailed fashion by Defendants (and not disputed by Plaintiffs),
additional instances of duplicative billing total 126.9 hours. (Filing 531-3; Filing 532,
Pls.’ Reply Br. Opp’n Mot. Attys’ Fees & Expenses.) Therefore, the hours of time for
which Plaintiffs may seek a fee award must be reduced by 98 hours, reflecting an
award for only one attorney where multiple attorneys performed the same task.
Plaintiffs’ request for fees also includes 181.40 hours of clerical duties such as
filing documents, mailing summons, and tabbing and organizing client files. (Filing
531-5; Filing 529-1.) 2 However, “[i]n calculating attorneys’ fees, ‘purely clerical or
secretarial tasks should not be billed at a paralegal rate, regardless of who performs
them.’” Murray v. Collections Acquisitions, LLC, No. 8:11CV301, 2012 WL
2577211, at *2 (D. Neb. July 3, 2012) (quoting Missouri v. Jenkins by Agyei, 491 U.S.
274, 288 (1989)). The defendants have filed evidence establishing that the customary
2

Again, Plaintiffs do not object to Defendants’ compilation of such time.
(Filing 532, Pls.’ Reply Br. Opp’n Mot. Attys’ Fees & Expenses.)
10

practice in the Omaha, Nebraska, market is that “secretarial tasks, including but not
limited to mailing of summons, updating files, filing documents in files, faxing
documents . . . would generally not be billed to a client but would usually be
considered part of a firm’s overhead.” (Filing 531-1, Aff. Mark C. Laughlin ¶ 8.)
Emery v. Hunt, 272 F.3d 1042, 1048 (8 th Cir. 2001) (“Plaintiffs are not entitled to
reimbursement for expenses that are part of normal office overhead in the
community.”) Accordingly, the lodestar shall be reduced by 181.4 hours to account
for the plaintiffs’ request for reimbursement for purely secretarial or clerical tasks.
Finally, the amount of hours included in Plaintiffs’ attorneys’ fee request shall
be further reduced by 83.9 hours to account for time spent litigating this case in
various state courts. (Filing 531-6 (chart noting billing entries for work in Sarpy,
Douglas, and Lancaster County District Courts and activity related to removal and
“parallel State & Federal actions”); Filing 529-1; Filing 532, Pls.’ Reply Br. Opp’n
Mot. Attys’ Fees & Expenses (not responding or objecting to Defendants’ reduction
argument for “forum shopping”); Filing 100 (order requesting Nebraska state courts
to refrain from issuing orders enjoining Nebraska Sex Offender Registration Act,
noting that federal court was first to acquire jurisdiction of claims raised in Doe cases
and “the possibility of conflicting injunctions serves no one’s interests”).)
4.

Enhancement

The plaintiffs argue that they are entitled to enhancement of the lodestar by at
least 2.25 due to the “unusual circumstances” of this case, to ensure that competent
counsel are attracted to similar cases in the future, because the plaintiffs’ attorneys
“have been precluded from other cases and employment due to acceptance of this
case,” the “unpopular” and undesirable nature of this case, the risk of losing on the
merits and fighting an “uphill battle” because “[s]ex offender registration laws have
by and large been upheld throughout their existence,” and the delay and extra expense
caused by the defendants’ litigation tactics. (Filing 528 at CM/ECF pp. 21-35.) The

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defendants assert that the plaintiffs are not entitled to any enhancement whatsoever.
“[E]nhancement is reserved for ‘rare’ and ‘exceptional’ cases, and must be
supported by specific evidence in the record and detailed findings by the lower court.
The applicant bears the burden of demonstrating that the lodestar amount must be
enhanced to constitute a reasonable fee.” Hendrickson v. Branstad, 934 F.2d 158, 162
(8 th Cir. 1991) (citations omitted). “It is only appropriate to enhance the lodestar when
that method will not ensure competent counsel in future cases of a similar nature.” U
& I Sanitation, 112 F. Supp. 2d at 904. The undesirability of a case, difficulty of
questions presented, time and labor required, and length of professional relationship
between attorneys and their clients cannot serve as bases for enhancing an attorneys’
fee award because these factors “are already reflected in the initial determination of
the reasonable hourly rate and number of compensable hours.” Gilbert v. City of Little
Rock, 867 F.2d 1063, 1067 (8 th Cir. 1989) (affirming 10% fee enhancement only “to
reflect enhancement solely for the risk of loss due to the contingent nature of the
fee”).3
The plaintiffs discuss several reasons for applying a fee enhancement, but their
main argument focuses on the undesirability of this case, the near “leper” status of the
plaintiffs, and the economic effect of this undesirability on counsels’ professional
lives. (Filing 528 at CM/ECF pp. 26-31 & 34-35.) Although I personally would like
to award an enhancement for this very reason, there is insufficient precedent in the
Eighth Circuit to do so, especially when the Eighth Circuit Court of Appeals has
specifically stated that “the undesirability of this case . . . cannot serve as [a basis] for
enhancing an award of attorney’s fees.” Gilbert, 867 F.2d at 1067.
Therefore, I decline to award an enhancement or multiplier in this case.

3

It is not clear that this case was a contingency-fee case.
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B.

Fees for Preparation of Attorneys’ Fee Application

Plaintiffs are entitled to recover fees for time spent preparing an attorneys’ fee
application. El-Tabech v. Clarke, 616 F.3d 834, 843-44 (8 th Cir. 2010) . However, the
defendants contend that the hours claimed for preparation of the attorneys’ fee
application should be reduced due to vague and unspecific billing entries. See
NECivR 54.4 (Fee Application Guidelines). I conclude that the Plaintiffs’ selfimposed 25% reduction in hours expended on the attorneys’ fee application is
sufficient to account for any lack of specificity. (Filing 529-2 at CM/ECF p. 2.)
Therefore, Plaintiffs’ request for $13,111.88 in attorneys’ fees for preparation of the
application for such fees is reasonable.
C.

Costs & Expenses

The defendants argue that Plaintiffs’ $26,182.56 in requested costs cannot be
recovered due to their failure to file a verified bill of costs pursuant to this court’s
local rules and, in any case, expert witness fees may not be recovered under 42 U.S.C.
§ 1988. Defendants are correct.
Section 1988(c) provides: “In awarding an attorney’s fee under subsection (b)
of this section in any action or proceeding to enforce a provision of section 1981 or
1981a of this title, the court, in its discretion, may include expert fees as part of the
attorney’s fee.” The plain language of section 1988(c) demonstrates that the expertfee provision applies only to actions brought under 42 U.S.C. §§ 1981 or 1981a.
Because this action was not brought under those sections, Plaintiffs are not entitled
to an expert witness fee as part of their attorneys’ fee award. Wedemeier v. City of
Baldwin, 931 F.2d 24, 26-27 (8 th Cir. 1991) (affirming district court’s refusal to award
expert witness fees as part of reasonable attorneys’ fee under 42 U.S.C. § 1988, stating
that “[t]he Supreme Court’s contrary holding in West Virginia University Hospitals,
Inc. v. Casey, 499 U.S. 83, 111 S. Ct. 1138, 1148, 113 L. Ed. 2d 68 (1991), forecloses

13

this argument”).4 See also Jenkins by Jenkins v. State of Missouri, 158 F.3d 980, 983
(8 th Cir. 1998) (Casey held that expert witness fees could not be shifted to losing party
under § 1988; “Congress amended § 1988 after Casey to authorize the award of expert
fees in cases brought under 42 U.S.C. §§ 1981 and 1981a, Pub. L. No. 102-166, §
113(a)(2), 105 Stat. 1071, 1079 (1991), but that amendment does not affect this
section 1983 case”); Hirsch v. Lecuona, No. 8:06CV13, 2008 WL 4457690, at *2 (D.
Neb. Sept. 26, 2008) (Bataillon, C.J.) (declining to award expert witness fees as part
of attorneys’ fee award in § 1983 case because 42 U.S.C. § 1988 limits recovery of
expert witness fees to actions to enforce 42 U.S.C. §§ 1981 or 1981a “and does not
include action under § 1983 for vindication of Constitutional rights”); 2 State & Local
Gov’t Civil Rights Liability § 2:38 (2d ed. Nov. 2012), available at STLOCCIVIL §
2:38 (Westlaw) (footnotes omitted) (“[E]xpert witness fees cannot be awarded under
Section 1988, as part of a ‘reasonable attorney’s fee. Such fees are controlled by the
federal statutory limits on taxing costs.’”).
As part of their request for costs, Plaintiffs have included $16,260 for the
services of its expert witness, Professor David Post. (Filing 529-4 at CM/ECF p. 28;
Filing 529-1 at CM/ECF p. 57.) Based on the above authorities, this amount cannot
be awarded as part of an attorneys’ fee award. However, some of Post’s expenses
may be properly taxed as costs by the Clerk of Court pursuant to Fed. R. Civ. P.
54(d)(1) (pertaining to costs other than attorneys’ fees).5
4

Casey held that Ҥ 1988 conveys no authority to shift expert fees. When
experts appear at trial, they are of course eligible for the fee provided by § 1920 and
§ 1821.” After Casey, Congress amended section 1988 to add section 1988(c) to
allow courts to award expert witness fees in actions or proceedings to enforce sections
1981 or 1981a. 42 U.S.C. § 1988(c). The amendment did not include claims made
under section 1983.
5

The Clerk of Court should note that Professor Post is not a court-appointed
expert under 28 U.S.C. § 1920(6). See Nebraska Civil Rule 54.1 (Taxation of Costs)
(Dec. 1, 2012); United States District Court for the District of Nebraska, Bill of Costs
Handbook, available at http://www.ned.uscourts.gov/forms.
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As to the remaining $9,922.56 in requested costs, “[a]n attorney fee that
includes as a component some of the expenses of the attorney is authorized under the
lodestar method, but only to the extent that such expenses would normally be paid by
fee-paying clients as a part of an attorney fee in the relevant market.” Sirois v.
Superior Pub. Co., Inc., No. 4:04CV3064, 2005 WL 1459388, at *2 (D. Neb. June 20,
2005) (Kopf, J.). The only evidence submitted to establish that Plaintiffs’ costs are
normally paid by fee-paying clients is the blanket statement by ACLU Legal Director
Amy Miller that “[i]t is . . . customary to charge clients for . . . costs and advances
incurred by a law firm, in connection with a lawsuit.” (Filing 529-5 at CM/ECF p. 2
¶ 13.) In the absence of more specificity, I cannot conclude that each of Plaintiffs’
claimed costs are of the type normally paid by fee-paying clients in this market.
Therefore, Plaintiffs’ remaining costs shall not be awarded as part of Plaintiffs’
reasonable attorney fee. However, these costs may be taxable by the Clerk of Court
pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920 upon the filing of a proper
bill of costs.6
III. LODESTAR CALCULATION
As reflected in Appendix C to this Memorandum and Order, Plaintiffs are
entitled to $279,453 in attorneys’ fees for 1,342.6 net hours expended on the merits
litigation and $13,111.88 in fees for preparation of the application for attorneys’ fees.
Plaintiffs are not entitled to costs as part of their attorneys’ fee award.
Accordingly,

6

The Clerk of Court shall not award costs for the $164.00 in filing fees in the
district courts of Douglas and Sarpy counties for the same reason that I declined to
award fees for time spent in such state litigation. (Filing 529-1 at CM/ECF pp. 56-57
(listing $82.00 in filing fees for Douglas and Sarpy County District Courts).)
15

IT IS ORDERED:
1.

Plaintiffs’ motion for attorneys’ fees and expenses (filing 527) is granted

in part and denied in part, as follows: Pursuant to 42 U.S.C. § 1988, the plaintiffs are
hereby awarded total attorneys’ fees against the defendants in the amount of
$292,564.88. In all other respects, the plaintiffs’ application is denied without
prejudice to the plaintiffs’ ability to seek taxation of costs pursuant to Fed. R. Civ. P.
54(d)(1) and 28 U.S.C. § 1920;
2.

Plaintiffs’ motion for hearing regarding attorneys’ fees and expenses

(filing 533) is denied;
3.

Judgment shall be entered by separate document.

DATED this 21 st day of December, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
16

APPENDIX A
Plaintiffs’ Requested Attorney Fee and Cost Calculation (Merits Litigation)
Attorney

Total hours
expended

(Reduction)

Requested
hours billed

Requested
hourly rate

(Total hours)
(Requested
rate)

(Less
reduction)

Requested
Lodestar

Minimum
multiplier

Enhanced fee

Stuart Dornan

268.9

40.3

228.6

$300.00

$80,670.00

$12,090.00

$68,580.00

2.25

$154,305.00

Tom Monaghan

75.0

11.2

63.8

$300.00

$22,500.00

$3,360.00

$19,140.00

2.25

$43,065.00

Christine
Lustgarten

18.7

2.8

15.9

$200.00

$3,740.00

$560.00

$3,180.00

2.25

$7,155.00

Jason Troia

44.3

6.6

37.7

$225.00

$9,963.00

$1,485.00

$8,478.00

2.25

$19,075.50

Josh Weir

89.7

13.5

76.2

$225.00

$20,182.50

$3,037.50

$17,145.00

2.25

$38,576.25

Rodney
Dahlquist

1038.8

155.8

883.0

$200.00

$207,760.00

$31,160.00

$176,600.00

2.25

$397,350.00

Ross Pesek

4.3

0.6

3.7

$150.00

$645.00

$90.00

$555.00

2.25

$1,248.75

Blake Richards

128.2

19.2

109.00

$150.00

$19,222.50

$2,880.00

$16,342.50

2.25

$36,770.63

Paralegal/
law clerk

334.7

50.2

284.5

$85.00

$28,445.25

$4,266.79

$24,178.46

2.25

$54,401.54

Totals

2002.5

$391,373.25

($58,705.99)

$332,667.26

1,702.4

Total Attorney Fee Requested

$751,947.67

Total Requested Costs and Advances

$26,182.56

Total Requested Award

$778,130.23

APPENDIX A (cont’d)
Plaintiffs’ Requested Attorney Fee and Cost Calculation (Fee Application)
Attorney

Total hours
expended

(25% self-im posed
reduction)

Requested hours
billed

Requested hourly
rate

Requested fee

Stuart Dornan

18.3

4.6

13.7

$300.00

$4,117.50

Christine Lustgarten

10.0

2.5

7.5

$200.00

$1,500.00

Rodney Dahlquist

25.0

6.3

18.8

$200.00

$3,750.00

Thom as Monaghan

2.9

0.7

2.2

$300.00

$652.50

Paralegal/ law clerk

48.5

12.1

36.4

$85.00

$3,091.88

Total Requested Award

$13,111.88

APPENDIX B
Defendants’ Proposed Attorney Fee
Attorney

Total
hours
expended

Duplicative
reduction

Clerical
reduction

Forum
shopping
reduction

Subtotal
hours
after
reductions

Partial,
incomplete,
vague
reduction

Lodestar
hours

Lodestar
hourly
rate

Total
Lodestar

M ultiplier

Total fees

SJD

268.9

0.0

(1.0)

(8.3)

259.6

15%

220.7

$250

$55,165.00

0

$55,165.00

TJM

75.0

(21.1)

0.0

(2.0)

51.9

15%

44.1

$250

$11,028.75

0

$11,028.75

CAL

19.4

(18.9)

(0.5)

0.0

0.0

15%

0.0

$200

$0.00

0

$0.00

JET

44.3

(11.5)

0.0

0.0

32.8

15%

27.9

$200

$5,576.00

0

$5,576.00

JWW

89.7

(13.9)

0.0

(32.0)

43.8

15%

37.2

$150

$5,584.50

0

$5,584.50

RCD

1038.8

(22.8)

(2.0)

(39.1)

974.9

15%

828.7

$150

$124,299.75

0

$124,299.75

RRP

4.3

0.0

0.0

0.0

4.3

15%

3.7

$150

$548.25

0

$548.25

BTR

128.2

0.0

0.0

0.0

128.2

15%

109.0

$150

$16,345.50

0

$16,345.50

PLC

334.7

(9.8)

(177.9)

(2.5)

144.5

15%

122.8

$85

$10,440.13

0

$10,440.13

Totals

2003.3

(98.0)

(181.4)

(83.9)

1640.0

1394.0

$228,987.88

$228.987.88

APPENDIX B (cont’d)
Defendants’ Proposed Fees on Fees
Attorney

Total hours
expended

Excessive fees on
fees reduction

Total hours

Hourly rate

Total fees on fees

SJD

18.3

25%

13.7

$250

$3,431.25

TJM

2.9

25%

2.2

$250

$543.75

CAL

10.0

25%

7.5

$200

$1,500.00

RCD

25.0

25%

18.8

$150

$2,812.50

PLC

48.5

25%

36.4

$85

$3,091.88

Totals

104.7

41.9

$11,379.38

Defendants’ Proposed Costs
Total requested costs

Expert witness reduction

Forum shopping reduction

Excessive sum m ons
reduction

Total costs

$26,182.56

($16,260.00)

($82.00)

($2,000.00)

$7,840.56

Defendants’ Total Proposed Award
Total fees

$228,987.88

Total fees on fees

$11,379.38

Total costs

$7,840.56

Total award

$248,207.81

APPENDIX C
Court’s Calculation of Attorneys’ Fees for Merits Litigation

Attorney

Total hours
expended

15% reduction

Subtotal of
hours
expended

D uplicative
reduction

C lerical
reduction

Forum -shopping
reduction

N et hours
expended

H ourly rate

Total lodestar

SJD

268.9

40.3

228.6

0

(1.0)

(8.3)

219.3

$300

$65,790

TJM

75.0

11.2

63.8

(21.1)

0

(2.0)

40.7

$300

$12,210

CAL

18.7

2.8

15.9

(18.9)

(0.5)

0

0

$200

0

JET

44.3

6.6

37.7

(11.5)

0

0

26.2

$225

$5,895

JWW

89.7

13.5

76.2

(13.9)

0

(32.0)

30.3

$225

$6,817.50

RCD

1038.8

155.8

883.0

(22.8)

(2.0)

(39.1)

819.1

$200

$163,820

RRP

4.3

0.6

3.7

0

0

0

3.7

$150

$555

BTR

128.2

19.2

109.0

0

0

0

109.0

$150

$16,350

P/LC

334.7

50.2

284.5

(9.8)

(177.9)

(2.5)

94.3

$85

$8,015.50

Totals

2002.5

1702.4

(98.0)

(181.4)

(83.9)

1342.6

$279,453

APPENDIX C (cont’d)
Court’s Calculation of Attorneys’ Fees for Preparation of Fee Application
Attorney

Total hours
expended

(25% self-im posed
reduction)

Requested hours
billed

Requested hourly
rate

Requested fee

SJD

18.3

4.6

13.7

$300.00

$4,117.50

CAL

10.0

2.5

7.5

$200.00

$1,500.00

RCD

25.0

6.3

18.8

$200.00

$3,750.00

TJM

2.9

0.7

2.2

$300.00

$652.50

P/LC

48.5

12.1

36.4

$85.00

$3,091.88

Total Award for Fee Application

$13,111.88

TOTAL AWARD
Total fees for m erits litigation

$279,453

Total fees for preparation of fee application

$13,111.88

Total costs

$0

Total award

$292,564.88