Bernbeck v. Gale et al

Filing 73

MEMORANDUM AND ORDER that plaintiff's Motion for Attorney Fees 62 is granted in part and denied in part as follows: The Court awards plaintiff $87,915.00 in attorneys' fees and $561.54 in costs. In all other respects the motion is denied. A separate judgment will be entered in accordance with this memorandum and order. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
Kent Bernbeck,
Plaintiff,

8:13CV228

v.
MEMORANDUM AND ORDER
John A. Gale, Nebraska Secretary of State,
Defendant.

This matter is before the court on the plaintiff’s motion for an award of attorney
fees and expenses, pursuant to Fed. R. Civ. P. 54(d) and 42 U.S.C. §1988. Filing No.
62. This is a civil rights action, brought by a citizen of Nebraska. The plaintiff filed this
lawsuit pursuant to 42 U.S.C. §1983, alleging that defendants violated his rights under
the First and Fourteenth Amendments to the United States Constitution. However, the
court found for the plaintiff with respect to his Fourteenth Amendment claim, finding that
Neb. Const. art. III §§ 2 and 4 violated the Equal Protection and Due Process Clauses
of the United States Constitution by diluting urban votes. The court ordered injunctive
relief. Filing No. 61.
Plaintiff, as the prevailing party, now seeks fees in the amount of $93,175, with
an upward adjustment of 50% to $139,762.50 and costs of $2,373.43 for a total of
$142,135.93. In support of the motion for attorneys’ fees and costs, plaintiff submits (1)
an itemized and detailed time records and cost entries; (2) the qualifications of counsel;
and (3) affidavits attesting to the reasonableness of the fees and costs sought by the
plaintiff. Filing No. 66; Filing No. 67.

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The defendant opposes the award.

The defendant contends that the total

amount requested by the plaintiff needs to be reduced. Defendant argues that there
must be a reduction in the award to reflect plaintiff’s lack of success on some of the
claims. The defendant also contends that, with respect to two of the plaintiff’s attorneys,
Megan Mikolajczyk and Christopher Mihalo, their rates are unreasonable and should be
reduced to reflect the market rate for attorneys with their levels of experience.
Defendant also contends that an enhancement of the Lodestar is not warranted, and
that the cost of computerized research is not separately recoverable. Filing No. 70.
DISCUSSION
A. Lack of Success on All Claims
“In any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the
court in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). A lawsuit which
includes several related legal theories based on a common core of facts should not be
viewed as a series of discrete causes of action, and compensation should not be
awarded on a claim-by-claim basis. In such a case, a counsel’s time is devoted to
litigation as a whole and compensation should be based on all hours reasonably
expended to achieve a successful result. Hensley v. Eckerhart, 461 U.S. 424, 435
(1983). A court should compensate the plaintiff for the time his attorney reasonably
spent in achieving the favorable outcome, even if the plaintiff failed to prevail on every
contention. Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991). When a
plaintiff has prevailed on some claims but not others, the plaintiff may be compensated
for the time spent on unsuccessful claims that were related to his successful claims, but

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not for time spent on unsuccessful claims that were distinct in all respects from his
successful claims.

Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001); see also

Hensley, 461 U.S. at 440. Claims are related and hence deserving of compensation, if
they “involve a common core of facts” or are “based on related legal theories”. Id. at
435.
The plaintiff contends that the two claims under the First and Fourteenth
Amendments involved a common core of facts. His claims arose from his efforts to
petition municipal governments across Nebraska to express support for reform of the
initiative and referendum petition process. The plaintiff’s objective was to make access
to the ballot easier, because his efforts had been impeded by the state’s geographic
distribution requirement and prohibition against paying petition circulators on a per valid
signature obtained basis. The plaintiff argues that his own interest in petitioning, and
his desire to do so on a state-wide basis, form the background and basis for this case.
Filing No. 72.
The defendant argues that the plaintiff’s first claim, challenging the validity of the
per-signature payment ban, is factually unrelated to his second claim challenging the
constitutionality of the signature distribution requirement in the state constitution. The
defendant also contends that the court’s finding for the plaintiff’s second claim on the
ground of equal protection and due process is not a related legal theory to his first
claim, which he argued were violations of the First and Fourteenth Amendments. Filing
No. 70.
The court finds that these two claims share a common core of facts and related
legal theories. The plaintiff’s desire to have the ability to petition municipal governments

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and his interest in the referendum process provide the factual background for this case,
and both claims arise out of that common core of facts. Both claims also shared related
legal theories. On both claims, the plaintiff argued that the laws violated his First and
Fourteenth Amendment, and this court found for the plaintiff on one of those legal
theories. Because both claims shared a common core of facts and were argued under
similar legal theories, reduction of the plaintiff’s attorneys’ fee for lack of success on all
claims is not warranted.
B. Reduction of Rates Based on Experience
The plaintiff seeks an award for attorney’s fees in the amount of $139,762.50,
after a 50% upward adjustment on a total Lodestar of $93,175. The plaintiff had four
attorneys and two paralegals work on his case. Plaintiff seeks the following hours and
rates: David Domina, 139.9 hours at a rate of $400 an hour; Megan Mikolajczyk, 100.9
hours at a rate of $300 an hour; Brian Jorde, 2.9 hours at a rate of $350 an hour;
Christopher Mihalo, 6.1 hours at a rate of $300 an hour; and two paralegals, totaling
41.9 hours at a rate of $100 an hour. The defendant only contests that the rates for
Megan Mikolajczyk and Christopher Mihalo are unreasonable.
When determining reasonable hourly rates, district courts may rely on their own
experience and knowledge of prevailing market rates. Hanig v. Lee, 415 F.3d 822, 825
(8th Cir. 2005).

The court should consider factors set forth in Johnson v Georgia

Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir 1974).

See McDonald v

Armontrout, 860 F.2d 1456, 1459 (8th Cir 1988). Johnson called for consideration of
twelve factors: (1) the time and labor required; (2) the novelty and difficulty of the
question; (3) the skill requisite to perform the legal service properly; ( 4) the preclusion

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of other employment by the attorney due to acceptance of the case; ( 5) the customary
fee; ( 6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the Circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorney; (10) the "undesirability" of the case;
(11) the nature and length of the professional relationship with the client; and (12)
awards in similar cases. Id. at 1459 n. 4.
To determine what would qualify as a reasonable rate in the prevailing Omaha
market, the court reviewed and analyzed reported decisions from this court over the
past several years involving attorney fee awards. See United States v. $104,160.00 in
U.S. Currency, No. 8:08CV463, 2009WL 3839340, at 2 (D.Neb. Nov. 17, 2009)
(Bataillon, J.) ($200 hourly rate for experience Omaha attorney representing claimant in
civil forfeiture action was reasonable in this locality); 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 relevant market based on evidence in record); Lohmeier
v. Bancwise Real Estate Services, L.L.C., No. 8:06CV578, 2008 WL 351657, at 2
(D.Neb. Feb. 7, 2008) (Smith Camp, J.) ($200 hourly rate for Omaha attorney with more
than 30 years’ litigation experience reflected appropriate market rates for services
provided in ADEA case); Bowen v. Allied Prop. & Cas. Ins. Co., No. 4:11CV3163, 2013
WL 942443, at *5 (D. Neb. Mar. 11, 2013) (Kopf, J.) (amounts $275, $210, and $175
were found to be reasonable rates for attorneys of varying experience, with the
associates receiving less); Johnson v. United of Omaha Life Ins. Co., No. 8:11CV296,
2013 WL 3400095 (D. Neb. July 5, 2013) (Thalken, J.) (rates of $340 and $350 an hour

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are reasonable for attorneys with 30 years of experience or specialized expertise, and
also noted that $80 an hour is a reasonable paralegal rate).
With respect to Megan Mikolajczyk and Christopher Mihalo, both of whom have
fewer than five years of experience, the court finds a rate of $250 an hour is a
reasonable rate for attorneys with that level of experience in this community. The Court
further finds that the number of hours claimed is reasonable, given the time and
complexity of the case.

See Filing No. 67, declaration of Megan Mikolajcyzk.

Accordingly, the court will award fees in the amount of $250 per hour for Megan
Mikolajczyk and for Christopher Mihalo.
The defendant did not argue that $400 an hour was an unreasonable rate for
lead counsel David Domina, based on his level of experience and expertise. The Court
notes that Mr. Domina has practiced in excess of 40 years and tried more than 350 jury
cases. See Filing No. 66, at ¶ 17; and attached Ex. 1 (resume). Nor did the defendant
argue that $350 an hour was an unreasonable rate for Brian Jorde. The Nebraska
federal courts, as set forth above, have found that similar rates are reasonable for
attorneys with this level of experience and specialty.

Based on its familiarity with

attorney fees in this community, the court finds that the rate of $400 an hour for 139.9
hours for David Domina, and a rate of $350 an hour for 2.9 hours for Brian Jorde are
reasonable rates for attorneys of their level of experience and will award those hourly
amounts.
The Court further finds that the number of hours claimed by all four of these
attorneys is reasonable. The plaintiff was successful in this case; this subject matter is
important to the citizens of Nebraska; the plaintiff’s counsel were efficient in pursuing

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this action; it takes a high level of skill to pursue these constitutional cases, with an
experienced and reputable attorney; the attorneys did not retain an up front fee, and
thus took a risk on this litigation, which for some attorneys is considered an undesirable
case. Thus, the court will award fees in the amount of $55,960 for Domina and $1,015
for Jorde. The court will award fees in the amount of $250 per hour for 100.9 hours for
Megan Mikolajczyk and 6.1 hours for Christopher Mihalo, resulting in an award of
$25,225 for Mikolajczyk and $1,525 for Mihalo.
The court also finds that $100 an hour is a reasonable rate for paraprofessionals,
based on its familiarity with their fees in this community, resulting in an award of $4,190
for 41.9 hours. Consequently, the court finds the total Lodestar is $87,915.00.
C. Enhancement of the Lodestar
A reasonable fee is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case, but does not produce a
windfall to attorneys. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). 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 a reasonable
hourly rate.

Hensley, 461 U.S. at 433.

Enhancement is reserved for rare and

exceptional cases, and must be supported by specific evidence in the record and
detailed findings by the lower court. Hendrickson, 934 F.2d at 162 (see Pennsylvania v.
Delaware Valley Citizens’ Counsel for Clean Air, 478 U.S. 546, 556 (1986)).

An

enhancement must be based on evidence that enhancement was necessary to provide
fair and reasonable compensation, and a fee application seeking an enhancement must
produce specific evidence that supports the award. Perdue, 559 U.S. at 553. The

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number of persons benefited is not a consideration in calculating fees under §1988.
Hendrickson, 934 F.2d at 163 (quoting Blum v. Stenson, 465 U.S. 886 (1984)).
A reasonable hourly rate is usually the ordinary rate for similar work in the
community where the case has been litigated.

Emery, 272 F.3d at 1048. (1) The

undesirability of this case, (2) the difficulty of the question presented, (3) the time and
labor required, (4) the length of the professional relationship with appellant cannot serve
as basis for enhancing an award of attorney’s fees because they are already reflected in
the initial determination of the reasonable hourly rate and number of compensable
hours. Gilbert v. City of Little Rock, Ark., 867 F.2d 1063, 1067 (8th Cir. 1989). Courts
have also held that the quality of an attorney’s performance generally should not be
used to adjust the Lodestar, “because considerations concerning the quality of a
prevailing party’s counsel’s representation normally are reflected in the reasonable
hourly rate.” Pennsylvania, 478 U.S. at 566.
The plaintiff contends that an enhancement of the Lodestar is appropriate in this
case, for which they cite a number of reasons: the change in Nebraska state law,
achieving one of the plaintiff’s objectives, the expeditious manner in which this case was
handled, and the lack of assurance of compensation. Filing No. 72. The plaintiff also
states that he did not know of another law firm that was willing to handle the case.
Filing No. 65. However, he also states that this law firm has represented him before in
litigation involving election laws, and he makes no mention of looking for another firm to
represent him in this matter.
Enhancement of the Lodestar is to be reserved for rare and exceptional cases
where it would be necessary to fairly and reasonably compensate the attorneys, upon a

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showing of specific evidence that would support that award. In this instance, the
reasons that have been provided are not the type that justify enhancement.

The

undesirability of the case, the relationship between the attorney and client, the
experience and ability of the attorney, and the contingent nature of the attorney’s
representation are factors that should be reflected in the attorney’s reasonable rate—
not through an enhancement of the Lodestar. Thus, the Court finds the final award for
attorneys’ fees is $87,915.00 is both reasonable and appropriate in this case.
D. Costs
The plaintiff is also seeking the cost of their expenses incurred during this case
totaling $2,373.43, including their computerized-research costs of $1,811.89.

The

defendant contests the costs only associated with computerized-based research. A
prevailing party may recover, as part of the attorney fee award, the reasonable out-ofpocket expenses incurred by that party’s attorney if the expenses are the type that are
normally charged by attorneys to their clients. West v. Nabors Drilling USA, Inc., 330
F.3d 379, 395-96.

However, “the law of this circuit is that computer-based legal

research must be factored into the attorney’s hourly rate.” Standley v. Chilhowee R-IV
School Dist., 5 F.3d 319 (1993).1 Therefore, the costs of computerized-research cannot

1

The Court notes that other Circuits permit both an award of the attorney’s hourly rate as well as the cost
for computer-based legal research. However, while the Eighth Circuit has permitted the cost of computer
legal research in negotiated settlement cases, see UnitedHealth Group Inc. Shareholder Derivative
th
Litigation, 631 F.3d 913, 918 (8 Cir. 2011), the Eighth Circuit has not extended this cost to general fee
shifting cases, although the dicta in this case leads this Court to believe the Eighth Circuit might consider
such a change. See id. at 918-19. The Eighth Circuit Court stated:
Even if we were to reach the merits of Scheeringa's claim, we would affirm the district court's
reimbursement of online-research expenses. Awards of fees and expenses are committed to the
sound discretion of the district court. Petrovic, 200 F.3d at 1145. Scheeringa has not established
that the district court abused its discretion by reimbursing derivative counsel for online-research
costs.

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Scheeringa argues that the district court abused its discretion because, under Eighth Circuit
precedent, online-research expenses are not reimbursable as a matter of law. In support of this
argument, he cites Standley v. Chilhowee R–IV School District, 5 F.3d 319 (8th Cir.1993) and
Leftwich v. Harris–Stowe State College, 702 F.2d 686 (8th Cir.1983). However, Scheeringa
overstates the reach of those cases. Standley and Leftwich both involved the reimbursement of
costs under fee-shifting statutes. Districts courts in this circuit have found these cases do not
control where, as here, expenses are being reimbursed pursuant to a negotiated settlement. See,
e.g., Yarrington v. Solvay Pharm., Inc., 697 F.Supp.2d 1057, 1067 (D.Minn.2010). We agree.
Id. at 918. The Eighth Circuit then stated:
The district court did not abuse its discretion in reimbursing derivative counsel for online-research
costs in this case. The Supreme Court has noted that reasonable attorneys fees include litigation
expenses when it is “the prevailing practice in a given community” for lawyers to bill those costs
separately from their hourly rates. Missouri v. Jenkins, 491 U.S. 274, 287, 109 S.Ct. 2463, 105
L.Ed.2d 229 (1989). This is how online research typically works in practice. InvesSys, Inc. v.
McGraw–Hill Cos., Ltd., 369 F.3d 16, 23 (1st Cir.2004) (“As configured by the provider, computeraided research is often a variable cost in an individual case—that is, the cost varies (from zero
upward) depending on the amount of Westlaw or Lexis service used in the case.”). The prevailing
view among other circuits is to permit awards to reimburse counsel for the reasonable costs of
online legal research. Id.; Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany,
369 F.3d 91, 98 (2d Cir.2004); In re Continental Illinois Sec. Litig., 962 F.2d 566, 570 (7th
Cir.1992). The district court did not abuse its discretion by doing so here.
Further, contrary to concerns raised by Scheeringa, this will not result in unfair double billing.
Electronic research services “presumably save money by making legal research more efficient.”
Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C.Cir.2004). The cost of online
research is normally matched with a reduction in the amount of time an attorney researches.
Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440–41 (7th
Cir.1994). “[I]f reimbursement at market rates is disallowed, the effect will be to induce lawyers to
substitute their own, more expensive time for that of ... the computer.” In re Continental Illinois
Sec. Litig., 962 F.2d at 570.
Because Standley and Leftwich do not control, and because it is reasonable to reimburse
derivative counsel for online-research services, the district court did not abuse its discretion by
reimbursing derivative counsel for online-research expenses.
Id. at 819. See also, Trustees of the Construction Industry and Laborers Health and Welfare Trust v.
th
Redland Insurance Company, 460 F.3d 1253, 1258 (9 Cir. 2006) (noting there is a split among the
circuits concerning whether expenses for computer based legal research can be compensated as
reasonable attorney’s fees. Id. at 1259-60. The Court noted:
We note that there is a circuit split concerning whether expenses for computer-based legal
research are compensable as “reasonable attorney's fees.” The Eighth Circuit has held that
“computer-based legal research must be factored into the attorneys' hourly rate, hence the cost of
the computer time may not be added to the fee award.” Standley v. Chilhowee R–IV Sch. Dist., 5
F.3d 319, 325 (8th Cir.1993). No other circuit has endorsed this view, and many have expressly
held that computerized research costs can, in appropriate circumstances, be recovered in
addition to the hourly rates of attorneys. See, e.g., Arbor Hill Concerned Citizens Neighborhood
Ass'n v. County of Albany, 369 F.3d 91, 98 (2d Cir.2004) (“If [the firm] normally bills its paying
clients for the cost of online research services, that expense should be included in the fee
award.”); Invessys, Inc. v. McGraw–Hill Cos., 369 F.3d 16, 22 (1st Cir.2004) (“[C]omputerassisted research should be ... reimbursed under attorney's fee statutes ... so long as the
research cost is in fact paid by the firm to a third-party provider and is customarily charged by the
firm to its clients as a separate disbursement.”); Case v. Unified Sch. Dist. No. 233, 157 F.3d

10

be included in that total, because these are not the type of costs that are normally
charged to the client. Instead, these costs are the type that should be reflected in an
attorney’s hourly rate. The Court will not award costs for computerized legal research.
Thus, the final award of costs is $561.54.
In conclusion, the Court awards attorneys’ fees in the amount of $87,915.00 and
costs in the amount of $561.54.

THEREFORE, IT IS ORDERED that:
1. The plaintiff’s motion for attorneys’ fees, Filing No. 62, is granted in part and
denied in part as follows:
a. The Court awards plaintiff $87,915.00 in attorneys’ fees and $561.54 in costs.
b. In all other respects the motion is denied.
2. A separate judgment will be entered in accordance with this memorandum
and order.
Dated this 8th day of April, 2015
BY THE COURT:
_s/ Joseph F. Bataillon_________
Senior United States District Judge
1243, 1257–58 (10th Cir.1998) (“Reasonable expenses incurred in representing a client in a civil
rights case [such as Westlaw charges] should be included in the attorney's fee award if such
expenses are usually billed in addition to the attorney's hourly rate.”); see also Role Models Am.,
Inc. v. Brownlee, 353 F.3d 962, 975 (D.C.Cir.2004).
We believe that the growing circuit consensus reflects the Supreme Court's treatment of litigation
expenses under attorney's fee statutes. Neither tradition nor statutory usage distinguishes
computer-based legal research costs from attorney's fees. Cf. W. Va. Univ. Hosps., 499 U.S. at
99–100, 111 S.Ct. 1138. We therefore hold that reasonable charges for computerized research
may be recovered as “attorney's fees” under § 1132(g)(2)(D) if separate billing for such expenses
is “the prevailing practice in the local community.” Jenkins, 491 U.S. at 287, 109 S.Ct. 2463 n. 9.
Id. at 1258-59.

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