Professional Firefighters Association of Omaha et al v. City of Omaha et al

Filing 469

MEMORANDUM AND ORDER regarding pending motions. 1. Defendants' motion to strike or respond, Filing No. 453 , is denied. 2. Plaintiffs' and intervenors' motions to award attorney fees, Filing No. 440 and Filing No. 443 , are grante d in part and denied in part as set forth herein. Mr. Corrigan and Mr. Dowd are awarded a total of $68,992.50 ($91,990.00 x.75) in fees, and $9,937.82 in non-taxable costs. Mr. Weinberg is awarded a total of $34,880.00 ($87,2 00 x.40) in fees and $2,026.28 in non-taxable costs. 3. The joint motion to unseal the audio recording and prepare a transcript, Filing No. 467 , is granted. The audio recording of the settlement conference dated October 5, 2010, is ordered uns ealed. The transcript of the October 5, 2010, settlement conference is likewise ordered unsealed for inclusion in a transcript prepared pursuant to Rule 10 of the Federal Rules of Appellate Procedure. Ordered by Chief Judge Joseph F. Bataillon. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PROFESSIONAL FIREFIGHTERS
ASSOCIATION OF OMAHA, LOCAL
385, et al.,
Plaintiffs,
RICK BERGHOLZ, et al.,
Intervenor Plaintiffs,
v.
CITY OF OMAHA, et al.,
Defendants.

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8:10CV198

MEMORANDUM AND ORDER

This matter is before the court on two motions for attorney fees, Filing No. 440 and
Filing No. 443, and on defendants’ motion to strike the index or, in the alternative, file a
brief responding to the new evidence, Filing No. 453. This action was brought by a group
of collective bargaining agents and individual class representatives seeking temporary and
permanent injunctive relief, claiming that the passage of an ordinance by the Omaha City
Council on May 18, 2010, violated their constitutional and contractual rights and, therefore,
their civil rights pursuant to 42 U.S.C. § 1983. The court granted the motion for a
temporary injunction (Filing No. 22) on June 10, 2010. Filing No. 43. Following settlement
in this case, the defendants agree that plaintiffs are the prevailing parties, at least to some
extent. Counsel for plaintiffs and intervenors request attorney fees under 42 U.S.C.
§ 1988. The defendants contend that plaintiffs and intervenors are not entitled to attorney
fees, arguing that this is a contract case and not a constitutional action.

Motion to Strike, Filing No. 453
The court will first deal with the motion to strike the supplemental index of evidence
filed by the defendants. Defendants contend that the intervenors filed a supplemental
index without leave of court and that intervenors failed to file a supporting brief as required
by NECivR 7.0.1(a)(2))A). Intervenors argue that they filed the supplemental index in
response to defendants’ assertion that plaintiffs’ records were not detailed enough. Filing
No. 451 at 15. Intervenors contend that the response with supplemental details regarding
their fees addressed the legal and factual issues item by item raised in the defendants’
brief, as required by NECivR 7.0.1(c).
The court has carefully reviewed the record and the positions of all concerned. The
court finds that further briefing is not necessary. The court understands the issues and the
positions of the parties. Further, the court is of the opinion that the intervenors were in fact
responding to the allegations set forth by the defendants as described in NECivR. 7.0.1(c).
Accordingly, the court will deny the motion to strike.
Motions for Attorney Fees, Filing Nos. 440 and 443
A. Contract vs. civil rights allegations
Defendants first argue that plaintiffs are not entitled to make a claim for attorney
fees for a contract dispute. Defendants argue that this case is not about a civil rights
1
action but is really a contracts case, relying on Carter v. Greenhow, 114 U.S. 317 (1885);

Dennis v. Higgins, 498 U.S. 439, 457 (1991) (Kennedy, J. dissenting) (“In our only previous

1

The court notes that the United States Suprem e Court determ ined that the petition in the Carter case
prim arily alleged a contract violation for failure of the state to accept coupons for tax paym ents. The Carter
court determ ined that the right to tender coupons rather than cash was not directly secured to the plaintiff by
the United States Constitution. Carter, 114 U.S. at 322.
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case discussing a § 1983 claim brought for the violation of a supposed right secured by
Article I of the Constitution, we held that violation of the Contracts Clause does not give
rise to a § 1983 cause of action [referring to the Carter case].”). See also Crosby v. City
of Gastonia, 635 F.3d 634 (4th Cir. 2011) (adopting the Carter analysis in a case where
legislation would reduce pension benefits retroactively, and where court refused to award
attorney fees and expenses in a contract clause case). To the extent that plaintiffs are also
trying to seek nontaxable expenses under § 1988, defendants contend plaintiffs are not
entitled to them for the same reason as applies to their request for attorney fees.
Defendants also assert these same arguments as to the intervenors’ request for fees and
costs.
With regard to the contracts versus civil rights action, the plaintiffs and intervenors
argue that there is no bar unless the contracts action is the sole cause of action. See
Dennis v. Higgins, 498 U.S. at 451 (1991). In Dennis, the United States Supreme Court
stated:
In arguing that the Commerce Clause does not secure any rights, privileges,
or immunities within the meaning of §1983, the dissent relies upon Carter v.
Greenhow, 114 U.S. 317, 29 L. Ed. 202, 5 S. Ct. 928 (1885). See post, at
457-458. This Court, however, has already given that decision a narrow
reading, stating that the case “held as a matter of pleading that the
particular cause of action set up in the plaintiff’s pleading was in
contract and was not to redress deprivation of the ‘right secured to him
by that clause of the Constitution’ [the contract clause], to which he
had ‘chosen not to resort.’” Chapman v. Houston Welfare Rights
Organization, 441 U.S. 600, 613, n.29, 60 L.Ed.2d 508, 99 S. Ct. 1905
(1979); see also Hague v. Committee for Industrial Organization, 307 U.S.
496, 527, 59 S. Ct. 954, 83 L.Ed. 1423 (1939) (opinion of Stone, J.)
(emphasis added).
Higgins, 498 U.S. at 451.
The Ninth Circuit has also stated:
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The City's argument that section 1983 provides no relief for a party deprived
of its rights under the Contracts Clause is without merit. Section 1983
provides for liability against any person acting under color of law who
deprives another “of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States. 42 U.S.C. § 1983. The rights
guaranteed by section 1983 are “liberally and beneficently construed.”
Dennis v. Higgins, 498 U.S. 439, 443, 111 S. Ct. 865, 112 L. Ed.2d 969
(1991) (quoting Monell v. Department of Social Services, 436 U.S. 658, 684,
98 S. Ct. 2018, 56 L.Ed.2d 611 (1978)). The right of a party not to have
a State, or a political subdivision thereof, impair its obligations of
contract is a right secured by the first article of the United States
Constitution. A deprivation of that right may therefore give rise to a
cause of action under section 1983.
Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (emphasis
added). In City of Santa Ana the Court of Appeals found that a utility was a prevailing party
for purpose of an award of attorney fees under § 1988 of the Civil Rights Act, where the
contract rights of the utility had been impaired and an action brought pursuant to § 1983.
Likewise, the Third Circuit Court of Appeals held that a cause of action under § 1983 lies
for impairment of contract under the contract clause of the United States Constitution as
applied to states under the Fourteenth Amendment when state law attempted to take away
vested retiree health benefits for a judge. Larsen v. Senate of the Commonwealth of
Pennsylvania, 154 F.3d 82 (3d Cir. 1998).
So, argue plaintiffs and intervenors, if the complaint only dealt with the collective
bargaining agreement, attorney fees are not permitted. However, when a § 1983 action
is alleged, and constitutional violations are alleged, fees are allowed. Plaintiffs and
intervenors argue that the complaint clearly sets forth a constitutional impairment of
contract, and an unlawful taking without compensation, in violation of the Fifth and
Fourteenth Amendments. The court agrees with the plaintiffs and intervenors and finds
that Higgins applies to this case. Higgins holds that a broad construction of § 1983 is
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required when constitutional rights are alleged. Higgins, 498 U.S. 868-70. Plaintiffs clearly
filed a § 1983 action which included valid constitutional claims for wrongful taking and
claims under the contract clause of the United States Constitution through the Fourteenth
Amendment. The Higgins case points out that the Carter case is very limited in scope.
This analysis is supported by the Third Circuit in Larsen as well as the Ninth Circuit in City
of Santa Ana.
The court further notes that the Crosby case is not persuasive. The Crosby court
relied on the limited holding in Carter and determined that contract clause cases are not
subject to § 1983. This court disagrees and will follow the reasoning of Higgins, Larsen,
and City of Santa Ana, absent a directive from the Eighth Circuit to do otherwise.2
In this case, the Omaha City Council specifically passed an ordinance unilaterally
changing the plaintiffs’ benefits in significant ways. Accordingly, for the reasons stated
herein, the court finds the plaintiffs are entitled to pursue their claims for attorney fees.
B. Prevailing Party
For the record, the court notes that it has looked at each and every entry regarding
the request for attorney fees and costs submitted by both the plaintiffs and the intervenors
and has considered all objections by the defendants.
Defendants object to the request for attorney fees. Filing No. 449. Defendants
agree that the plaintiffs stopped the City of Omaha from raising premiums but argue that
they were not successful on other claims, e.g., the City of Omaha is now able to
consolidate the 34 plans into one plan. Defendants argue also that the application for fees

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This sam e analysis applies to the request for costs, as it relates to the § 1988 argum ent.
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is deficient in detail and documentation and the entries are also redundant. With regard
to this issue, counsel responded with a more detailed listing of fees, descriptions, and
time.3
Defendants also argue that this court should not award costs. The court’s Bill of
Costs Handbook, Section III, states that “if parties settle a case before or during trial, costs
will not be taxed. Counsel should include all costs in the settlement agreement.” NECivR
54.1(a). The court agrees with the defendant that costs will not be taxed under NECivR
54.1, but the court will review the requested expenses under § 1988, as the plaintiffs and
intervenors are prevailing parties.
The “prevailing party” in a § 1983 action is generally entitled to “a reasonable
attorney's fee.” See 42 U.S.C. § 1988 (2007); see 42 U.S.C. § 1988; Hensley v. Eckerhart,
461 U.S. 424, 429 (1983); Cody v. Hillard, 304 F.3d 767, 772 (8th Cir. 2002). A “prevailing
party” is one who secures a “judicially sanctioned change in the legal relationship of the
parties.” Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human
Resources, 532 U.S. 598, 605 (2001); Farrar v. Hobby, 506 U.S. 103, 111-112 (1992)
(stating that a plaintiff prevails “when actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff”). Nevertheless, compensability is limited by the degree
of a plaintiff's success in the case as a whole. Jenkins by Jenkins v. Missouri, 127 F.3d
709, 718 (8th Cir. 1997). The Eighth Circuit has noted “the degree of [a plaintiff's] success

3
A sm all num ber of plaintiffs, known as the Zalewski group, object to the requests for fees, arguing
that the intervenors filed objections to the settlem ent agreem ent, and because all of those objections did not
go in their favor, plaintiffs did not prevail on all issues. Filing No. 448. However, the Zalewski group agrees
that the am ount and tim e requested are reasonable.

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is ‘the most critical factor’ in determining a reasonable fee award.” Warnock v. Archer, 397
F.3d 1024, 1026 (8th Cir. 2005). There is “no precise rule or formula” for making fee
determinations in cases with only partial success. Hensley, 461 U.S. at 436. Where “the
court cannot separate out which hours were billed for which issues, [it] ‘may simply reduce
the award to account for the [plaintiff's] limited success.’” Warnock, 397 F.3d at 1026
(quoting Hensley, 461 U.S. at 436-37). Where the plaintiff prevails on some, but not all of
the claims he asserts, the court may consider the significance of the issues on which the
plaintiff prevailed and whether a public purpose was served or relief obtained that applied
to others besides the plaintiff. See, e.g., Murray v. City of Onawa, Iowa, 323 F.3d 616, 619
(8th Cir. 2003). Also, the prevailing party status extends to post-judgment work if it is a
“necessary adjunc[t] to the initial litigation.” Jenkins by Jenkins, 127 F.3d at 716. A district
court may award fees to a prevailing party for reasonable post-judgment monitoring. Cody,
304 F.3d 774.
The starting point in determining the amount of attorney fees is the “lodestar,” which
is calculated by multiplying the number of hours reasonably expended by reasonable
hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Emery v. Hunt, 272 F.3d
1042, 1046 (8th Cir. 2001). See also the recent case Perdue v. Kenny A., 130 S. Ct. 1662
(2010) (utilizing lodestar approach in an award under § 1988). In determining a reasonable
attorney fee, the district court should consider the factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1984), though it need not

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exhaustively address every factor.4 Id. A reasonable hourly rate is usually the ordinary
rate for similar work in the community where the case has been litigated. Id. at 272 F.3d
at 1048. In Perdue the United States Supreme Court recently stated:
First, a “reasonable” fee is a fee that is sufficient to induce a capable
attorney to undertake the representation of a meritorious civil rights case.
See Delaware Valley I, 478 U.S., at 565, 106 S. Ct. 3088 (“[I]f plaintiffs . . .
find it possible to engage a lawyer based on the statutory assurance that he
will be paid a ‘reasonable fee,’ the purpose behind the fee-shifting statute
has been satisfied”); Blum, supra, at 897, 104 S. Ct. 1541 (“[A] reasonable
attorney's fee is one that is adequate to attract competent counsel, but that
does not produce windfalls to attorneys” (ellipsis, brackets, and internal
quotation marks omitted)). Section 1988’s aim is to enforce the covered civil
rights statutes, not to provide “a form of economic relief to improve the
financial lot of attorneys.” Delaware Valley I, supra, at 565, 106 S. Ct. 3088.
Perdue, 130 S. Ct. at 1672-1673.
Plaintiffs contend that they are entitled to attorney fees because this court issued
an order approving the class action settlement in this case on January 3, 2011. Plaintiffs
contend that the fair and reasonable value for the attorney fees for John Corrigan and
Michael Dowd is $91,990.00, based upon an expenditure of 459.95 hours at $200 per
hour. Filing No. 441, Attachments 1 and 2. Plaintiffs further ask for taxable costs and
expenses in the amount of $17,346.39. Filing No. 441, Attach. 5.
The court notes that John Corrigan has been engaged in the practice of law for
thirteen years, appearing in federal and state court and representing employees in
collective bargaining disputes. He believes an hourly rate of $200 is commensurate with

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The Johnson factors are: (1) the tim e and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of em ploym ent by the
attorney due to acceptance of the case; (5) the custom ary fee; (6) whether the fee is fixed or contingent; (7)
tim e lim itations im posed by the client or the circum stances; (8) the am ount 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 sim ilar cases. Johnson, 488 F.2d
at 717-19.
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his abilities and experience. Mr. Corrigan points out that the class included over 10,000
active, retired, and dependent beneficiaries. Plaintiffs secured an injunction, conducted
extensive discovery, and drafted lengthy briefs addressing the facts and constitutional
issues, participated in meditations, and navigated all the difficult class issues. See Filing
No. 441, Attach. 1, Aff. of Corrigan. The total number of dollars requested for this work is
$44,910.00, plus costs in the amount of $10,202.61. See summary of hours expended,
Filing No. 441-1.
Michael Dowd makes similar claims. He has been engaged in the practice of law
for over twenty years, is licensed in Nebraska and Iowa, has also practiced in state and
federal courts and represented employees involved in collective bargaining issues. He is
in partnership with Mr. Corrigan and they represent the Nebraska chapter of the American
Federation of Labor and Congress of Industrial Organizations. Mr. Dowd claims he spent
235.40 hours on this case. He requests a fee of $47,080.00 and costs in the amount of
$7,143.78.5 Filing No. 441-2.
Additionally, Ed Fogarty filed an affidavit regarding the reasonableness of the $200
per hour request. Aff. of Fogarty, Filing No. 441-3. Mr. Fogarty has been involved in
litigation for approximately 42 years and has appeared in federal and state courts. Mr.
Fogarty believes that $200 per hour is a reasonable and customary charge for the work
done in this case, and he further believes the time expended is reasonable. Mr. John
Fahey, who has practiced in Omaha for forty years, is of the same opinion. Filing No. 4414, Aff. of John Fahey. Robert Broom filed an affidavit on behalf of the intervenors attesting

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Plaintiffs’ total bill of costs is set forth in Ex. E, Filing No. 441-5, and the am ount of requested costs
is $17,346.39.
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that $200 per hour was a fair and reasonable rate for Mr. Weinberg. Filing No. 452,
Attach. 2.
Intervenors argue that they too are entitled to recover attorney fees, Filing No. 443,
as they added significant value to the settlement for the class as well as the intervenorplaintiffs. Counsel for the intervenors contends that he expended 436.25 hours, for a total
of $87,200.00, and incurred $2,026.68 in expenses. See Filing No. 444-2.
The court finds that plaintiffs and intervenors are the prevailing parties in this case.
The City Council passed an ordinance which substantially impaired the health benefits of
the retiree health group. Counsel for plaintiffs established a class action case, received
injunctive relief from this court, and then negotiated a difficult settlement with the
defendants. Counsel have substantial experience in class action cases, substantial
experience working with unions and related union issues, and substantial experience in
federal and state court dealing with these issues.
The court agrees that the intervenors caused notices to be corrected, represented
their clients well, obtained relief for their clients through the settlement agreement, helped
eliminate conflicts with current employees and retirees, assisted with and caused changes
to the provisions of the settlement agreement, and assisted in many aspects of the
litigation hearings. See Filing No. 444-1. Counsel has substantial experience in class
action cases, substantial experience working with unions and related union issues, and
substantial experience in federal and state court dealing with these issues
The court likewise finds that $200 per hour is a fair and reasonable amount for all
three of the attorneys in this case. The court will review the Johnson factors to determine
the amount plaintiffs and intervenors are entitled to receive.
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Time and labor required. The court has carefully reviewed the fee exhibits. The
court agrees with the plaintiffs that they spent a substantial amount of time working on this
case. The court agrees that the intervenors were required to spend time, although
substantially less, representing the interests of their clients.
Novelty and difficulty of the questions. There is no doubt the questions in this
case were novel and difficult. The issues involved included constitutional questions,
contract questions, collective bargaining questions, plus the added difficulty of working with
the budget issues for the City of Omaha and the claims of the intervenors.
Skill to perform the legal services properly/experience, reputation and ability
of the attorney.

The court has already outlined the credentials of plaintiffs’ and

intervenors’ counsel. They demonstrated their competency which led to a favorable result
for the plaintiffs and intervenors. There is no doubt about their ability to handle these types
of cases. Further, counsel have an excellent reputation in this community. It took
significant skill to address the procedural, constitutional, contractual, and city budget
issues, not to mention the vast numbers of individuals involved in different aspects of this
lawsuit.
Preclusion of other employment due to acceptance of this case. Counsel
clearly devoted substantial time to this case, as can be seen in their summaries of time
spent. This case was fast moving and required timely court preparations, appearances,
research and significant negotiation.
Customary fee. Plaintiffs and intervenors have convinced this court that the hourly
rate of $200 is reasonable and commensurate with counsels’ experience and skill. The

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court notes that in the recent case of Planned Parenthood v. Heineman, 2011 WL
772861*4 (D. Neb. February 28, 2011) Judge Laurie Smith Camp found in § 1988 fee case
the hourly rate of between $200 and $275 was reasonable. See also Sheriff v. Midwest
Health Partners, 2009 WL 2992513 (D. Neb. September 16, 2009) (finding a rate of $200
to $300 is reasonable).
Fixed or contingent fee. It appears that the fee in this case is fixed.
The amount involved and the results obtained. Counsel for plaintiffs saved
plaintiffs from expending approximately $260,000 per month in premium costs as a result
of obtaining an injunction and precluding enforcement of the ordinance. Since July 1,
2010, according to plaintiffs, counsels’ efforts have saved the class $2,340,000 in premium
costs.

Further, plaintiffs ultimately have secured their retiree health coverage by

maintaining the same premium amounts in effect at the time of their retirement.
Undesirability of the case. Plaintiffs contend the case was not particularly
undesirable. However, the court finds this factor weighs in favor of the plaintiffs. This was
a difficult case, not only because it is somewhat novel, but because it implicated serious
budget considerations for the City of Omaha and impacted the citizens of Omaha. The
result in this case will likely be viewed by some in an unfavorable light.
Nature and length of professional relationship with the client. Counsel have
worked with these employees and groups for a number of years, and this connection did
assist with obtaining a favorable result for the plaintiffs.
Awards in similar cases. Counsel again argue that the rate of $200 is reasonable
as is the number of requested hours. The court finds that the fees requested in this case

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are similar to those in other high profile civil rights cases. See, e.g., Planned Parenthood,
2011 WL 772861 *6 (court awarded $125,913.82 in fees and non-taxable expenses of
$3,500 in case attacking unconstitutional state statute); Rosie D. ex rel. John D. v. Patrick,
2011 WL 9352 (D. Mass. 2011) (court awarded over $1,000,000 in fees and over $28,000
in costs in a case where plaintiffs obtained a favorable judgment against state officials on
behalf of class of Medicaid-eligible children); Kreidler v. Pixler, 2011 WL 39054 (W.D.
Wash. 2011) (court awarded over $2,000,000 in fees and costs of $500,000 (in case
involving the Consumer Protect Act and Criminal Profiteering Act); Moses v. New York City
Transit Authority, 2003 WL 22939122 (S.D.N.Y. 2003) (plaintiffs sued for constitutional and
collective bargaining violations, and case settled; court approved over $71,000 in attorneys’
fees).
Award of expenses. Counsel submit that the total expenses and taxable costs are
clearly reasonable and were necessary in order to prepare for trial and presentation of this
matter to the District Court, as evidenced by the Bill of Costs filed herein by the parties.
The court agrees in part and finds that the costs in the amount of $17,346.39, less the
costs for the bond interest which is discussed hereinafter, are reasonable and necessary
and shall be awarded to the plaintiffs in this case. The court also finds that the costs of the
intervenors in the amount of $2,026.68 are fair and reasonable.
This case involved several issues that the court characterizes as complex. Plaintiffs
underwent discovery and trial preparation and were required to research and respond to a
number of motions. Based on the affidavits submitted by the plaintiffs and the intervenors
and on the court’s familiarity with fees in the community, the court finds the hourly rate of
$200 per hour is reasonable. The court agrees with the defendants that plaintiffs did not win
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on all issues. The court finds the time sheets cannot be separated by issues won and issues
lost.

Accordingly, the court is of the opinion that the plaintiffs and intervenors were

successful on approximately 75% of their claims. The court will make the award, less time
not compensated, based on this 75% determination.
As for the time claimed, the court finds as follows:
John Corrigan and Michael Dowd. The court agrees in general with the defendants
that the clerical duties billed at the attorneys’ hourly rate are not permitted. However, after
reviewing the filings referred to by the defendants, the court is of the opinion that such time
is compensable and is generally not in the nature of clerical duties but, in fact, appears to
be legal time spent by Michael Dowd. See Filing No. 441-2, June 1, 29, August 2, 18 and
24. Further, the court finds that there was very little duplicity in time wherein both Mr.
Corrigan and Mr. Dowd attended conferences, board meetings, depositions and drafted the
same documents as alleged by the defendants. See Filing No. 441-2, entries dated 5/22;
5/23; 5/24; 6/5; 6/7; 6/15; 6/18; 7/28; 8/4; 8/10; 8/26; 8/27; 9/2; 9/3; 9/8; 10/27; 10/28;
11/8;11/30; 12/3. The court agrees that this case was on a fast track and required the work
of more than one attorney. The court further finds that on most of the occasions where time
was duplicated, it was warranted. Careful preparation in cases such as this one often
requires collaboration. See Planned Parenthood, 2011 W L 772861 at *2. Accordingly, the
court finds the fees requested, less 25%, are reasonable and will be awarded to counsel for
the plaintiffs.
Michael Weinberg. Based on the above findings, the court concludes that Mr.
W einberg is likewise a prevailing party in this case. Defendants argue that the award of any

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fees should be reduced because the intervenors did not play a significant role in the litigation
and did not significantly contribute to the result.
The court has already determined that the hourly amount requested, $200, is also
appropriate for Mr. W einberg given his background and experience.

The intervenors

prevailed on a number of issues. However, Mr. W einberg only represented a small number
of employees, less than ten, and the intervenors did not win on all of their issues. The court
finds that the requested amount, 436 x $200 per hour, totaling $87,200.00 , is out of sync
with the number of people represented, with the outcomes achieved for those individuals,
and in comparison to the amount claimed by plaintiffs’ two attorneys. Class counsel secured
the preliminary injunction prior to the appearance of the intervenors. Much of the work of
counsel for the intervenors did duplicate the work performed by class counsel. The court
finds, however, that the intervenors did assist with making sure all employees received
notice; did argue that class members be able to opt out after final notice, although only ten
members opted out; and the intervenors did get a concession from the city regarding
termination of coverage prior to December 31, 2017. However, counsel for the intervenors
billed almost as many hours as both class counsel combined. The court finds that is not
supported by the relative workload. Further, the intervenors did not move to intervene until
June 15, 2010, and they did not become parties to this lawsuit until June 28, 2010.
Accordingly, the court will deduct 25% of the total requested amount from the total as it did
for plaintiffs’ counsel, for issues won by the City of Omaha. Also, the court will deduct an
additional 35% of the total request (roughly one-half the amount awarded to counsel for the
plaintiffs) as duplicative and unjustified in light of the work performed relative to the plaintiffs’
counsel.

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Costs. Under § 1983, “expenses that are reasonable, necessary and customarily

billed to clients in the relevant economic market are properly compensable as a component
of a fee award.” ACLU Nebraska Foundation v. City of Plattsmouth, Neb., 199 F. Supp.2d
964, 967 (D. Neb. 2002). Defendants argue that the submission of costs is vague at best.
They further contend that the request for interest on the bond in the amount of $7,408.57
is not supported by evidence nor are any cases cited in support of this request.6
As stated herein, the court viewed all the costs submitted by the plaintiffs and the
intervenors, line by line. The court finds the costs are reasonable and should be awarded
to the prevailing parties with one exception. Plaintiffs have offered no support for their
request that this court award interest on the bond.

There is no evidence such as

statements or invoices and no evidence that this is a reasonable expense. Accordingly,
the court will make no award of interest.
Motion to Unseal
The parties have filed a joint motion to unseal the audio recording and prepare a
transcript. Filing No. 467. The court has reviewed the motion and finds it should be
granted.
THEREFORE, IT IS ORDERED:
1. Defendants’ motion to strike or respond, Filing No. 453, is denied.
2. Plaintiffs’ and intervenors’ motions to award attorney fees, Filing No. 440 and
Filing No. 443, are granted in part and denied in part as set forth herein. Mr. Corrigan and

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Plaintiffs request interest paid on bond by Professional Firefighters in the am ount of $1,628.50; for
Om aha Police Union, Local 101, in the am ount of $3,467.17; and for Om aha Civilian Em ployees Association
in the am ount of $2,312.90; for a total of $7,408.57. Filing No. 441-5, entries dated 01/01/2011.
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Mr. Dowd are awarded a total of $68,992.50 ($91,990.00 x .75) in fees, and $9,937.82 in
non-taxable costs. Mr. Weinberg is awarded a total of $34,880.00 ($87,200 x .40) in fees
and $2,026.28 in non-taxable costs.
3. The joint motion to unseal the audio recording and prepare a transcript, Filing
No. 467, is granted. The audio recording of the settlement conference dated October 5,
2010, is ordered unsealed. The transcript of the October 5, 2010, settlement conference
is likewise ordered unsealed for inclusion in a transcript prepared pursuant to Rule 10 of
the Federal Rules of Appellate Procedure.
DATED this 7th day of June, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb 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 som e other site does not affect
the opinion of the court.
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