Tenorio v. San Miguel County Detention Center et al

Filing 380

ORDER by Magistrate Judge Laura Fashing granting in part and denying in part 363 Motion for Attorney Fees and 365 Supplement to Motion for Attorney Fees. (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ESTRELLA TENORIO,
Plaintiff,
v.

1:15-cv-00349-LF-JHR

SAN MIGUEL COUNTY DETENTION CENTER,
BOARD OF COMMISSIONERS OF
SAN MIGUEL COUNTY, WARDEN PATRICK
SNEDEKER, in his individual and official capacities,
ANTONIO PADILLA, ELFIGO SANDOVAL,
JOEY ROMERO, and MATTHEW BORREGO,
in their individual capacities,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES
THIS MATTER comes before the Court on Plaintiff’s Motion for an Award of
Attorneys’ Fees, Costs, and Expenses, filed December 19, 2018. Doc. 363. This matter also
comes before the Court on Plaintiff’s Supplement to Motion for an Award of Attorneys’ Fees,
Costs, and Expenses, filed on December 20, 2018. Doc. 365. Defendants filed their response
in opposition to plaintiff’s motion on February 20, 2019. Doc. 371. Plaintiff filed her reply
on March 6, 2019. Doc. 372. Plaintiff filed a supplement to her reply on March 7, 2019.
Doc. 373. The Court held a hearing on the motion on May 30, 2019. Doc. 377. Having read
the parties’ briefing and heard the argument of counsel, and for the reasons stated below and at
the hearing, the Court finds that the motion is well taken in part and will GRANT it in part and
DENY it in part.
I.

Background Facts and Procedural Posture
This case arises out of an incident that took place in the San Miguel County Detention

Center on May 12, 2013. Plaintiff Estrella Tenorio alleged that detention officer defendants

Elfigo Sandoval, Joey Romero, and Matthew Borrego violated her Fourth Amendment rights by
unlawfully seizing her and using excessive force against her. Ms. Tenorio further alleged that
this constitutional violation resulted from the official policy or custom of the defendant Board of
County Commissioners of San Miguel County (the “County”). In her First Amended
Complaint, Ms. Tenorio brought seven causes of action against defendants. Doc. 128. The
Court dismissed some of Ms. Tenorio’s claims, see Docs. 156, 250, 264, and Ms. Tenorio settled
her claims against defendants Health Care Partners Foundation, Inc. (“HCP”), and Rita Torres
before trial. Doc. 229, 258.
This case went to trial on civil rights and intentional tort claims against individual
officers Elfigo Sandoval, Joey Romero, Matthew Borrego, and a municipal liability claim against
the County. See Doc. 347. The jury found in favor of Ms. Tenorio on all claims that went to
the jury1 and awarded her a total of $150,000.00 in compensatory and punitive damages. Doc.
334. On September 30, 2018, this Court entered a final judgment in favor of Ms. Tenorio.
Doc. 346. As the prevailing party, Ms. Tenorio seeks attorneys’ fees and costs from the County
pursuant to 42 U.S.C. § 1988. Specifically, Ms. Tenorio requests a total of $600,841.47 in
attorneys’ fees (see Docs. 363-4 at 180, 365, 365-1, 373-1 at 6),2 a total of $20,980.10 in costs

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The Court granted some of the defendants’ motions under FED. R. CIV. P. 50 before the case
was submitted to the jury. See Doc. 347 at 9.
2

The parties often combine attorneys’ fees with costs in their filings. I, however, will separate
fees and costs for the purposes of this order. Ms. Tenorio requested $575,845.97 in attorneys’
fees in her original motion. Doc. 363-4 at 180. In her supplemental motion, she requested an
additional $13,582.50 in fees. Docs. 365 at 2, 365-1 at 2. In the supplement to her reply, she
requested an additional $11,413.00 in fees. Doc. 373-1 at 6. Thus, the total attorney’s fees
requested, excluding costs, is $600,841.47.
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(see Docs. 363 at 23, 373 at 2, 373-1 at 7),3 plus 7.875% in gross receipts taxes4 on both the
attorneys’ fees and costs in the amount of $48,968.45 (Doc. 373 at 2), for a grand total of
$670,790.02 (Doc. 373 at 2).
II.

Discussion
Section 1988 provides that, in certain civil rights actions, including those brought under

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). In
addition to attorney’s fees, the prevailing party in a civil rights action is normally entitled to
costs under 28 U.S.C. § 1920. Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d
1243, 1249 (10th Cir. 1998). “A plaintiff who succeed[ed] on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing the suit is a prevailing party.”
Id. (internal quotation marks and citation omitted) (alteration in original). “[A] prevailing
plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render
such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation
marks and citation omitted). Defendants do not dispute that plaintiff was a prevailing party on
the claims that went to the jury, nor do defendants contend that an award of attorneys’ fees
would be unjust. Rather, defendants challenge the reasonableness of the requested award.

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Ms. Tenorio originally requested $21,031.55 in costs. Doc. 363 at 23. She requested an
additional $221.77 in costs in the supplement to her reply, but she also reduced her cost request
by $273.22 for a mistake she had made in her original cost request. See Docs. 373 at 2, 373-1 at
7. Thus, the total costs she requests are $20,980.10.
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Defendants do not contest the award of gross receipts taxes on the award of attorney’s fees and
costs, which routinely are permitted. See Olivo v. Crawford Chevrolet Inc., 526 F. App’x 852,
856 (10th Cir. 2013) (unpublished) (“The New Mexico Gross Receipts Tax is required by state
law and may be included as part of plaintiffs’ attorney’s fee award.”).
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A. Attorneys’ Fees
“To determine the reasonableness of a fee request, a court must begin by calculating the
so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption that this
lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). “The lodestar calculation is the product of the number of attorney hours
‘reasonably expended’ and a ‘reasonable hourly rate.’” Id. Counsel for the party claiming the
fees has the burden of establishing entitlement to an award and documenting the appropriate
hours expended and hourly rates. Case, 157 F.3d at 1249−50. The Court must examine the
records to determine whether specific tasks are properly chargeable and whether the hours
expended on each chargeable task are reasonable. Id. at 1250. “The prevailing party must
make a good-faith effort to exclude from a fee request, hours that are excessive, redundant, or
otherwise unnecessary.” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (internal
quotation marks and citation omitted). Moreover, the hourly rates requested by counsel must
reflect the prevailing market rates in the community. Id. Finally, certain factors may cause
the court to adjust a fee upward or downward, “including the important factor of the ‘results
obtained.’” Hensley, 461 U.S. at 434.
In her motion, plaintiff requests attorney’s fees in the amount of $575,845.97. Doc.
363-4 at 180. Plaintiff’s supplemental motion requests an additional $13,582.50 for “time and
costs related to time spent on research, preparation, drafting and finalizing the motion for
attorneys’ fees.” Doc. 365 at 2. Plaintiff’s supplement to her reply requests fees in the
amount of $11,413.00 for “time spent working on items since the filing of the Motion.” Docs.
373 at 1, 373-1 at 6. Defendants do not contest the hourly rates claimed by plaintiff’s counsel.
Doc. 371 at 6. Instead, defendants contend that plaintiff’s request for fees for the number of
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hours worked are excessive and should be reduced by 40%. Id. The Court agrees with
defendants that plaintiff’s attorneys’ fees should be reduced, but not to the extent requested by
defendants.
The Court will reduce plaintiffs requested fees for several reasons. First, the limited
success obtained by plaintiff warrants a reduction in attorney’s fees. See Barber v. T.D.
Williamson, Inc., 254 F.3d 1223, 1230−31 (10th Cir. 2001) (analyzing the difference between the
relief a plaintiff sought and the relief a plaintiff recovered in determining the reasonableness of
attorney’s fees). In this case, there was a substantial difference between the amount sought and
the amount of the judgment. As defendants point out. plaintiff recovered less than 4% of what
she sought at trial, and 13% of her lowest settlement demand prior to trial. Doc. 371 at 7.
Further, only a portion of the claims asserted by plaintiff in her amended complaint
merited presentation to the jury. Plaintiff asserted seven claims in her amended complaint.
Doc. 128. Of those seven claims, only her Fourth Amendment claims, and her intentional tort
claims against the three individual detention officers went to the jury. Plaintiff’s claims against
defendants HCP and Rita Torres were settled (Doc. 229), and plaintiff’s other claims were
dismissed. See Docs. 250, 264. Attorney time and fees that were expended on claims solely
related to defendants HCP and Rita Torres should not be assessed against the County.
Moreover, although many of plaintiff’s claims were intertwined, plaintiff was not the prevailing
party with regard to the claims that were dismissed by the Court. Nevertheless, plaintiff’s
Fourth Amendment case served a public purpose by affirming an important right and
encouraging attorneys to represent civil rights litigants, and the fee award reflects this. See
Barber, 254 F.3d at 1231 (viewing the public purpose served by a civil rights plaintiff in broad
terms and recognizing that courts have concluded “that a public goal is accomplished if the
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plaintiff’s victory encourages attorneys to represent civil rights litigants and affirms an important
right, and/or provokes a change in the defendant’s conduct”).
A court may, in its discretion, reduce the lodestar amount of attorney’s fees if it
determines the number of hours claimed are duplicative, unproductive, excessive, or otherwise
unnecessary. Case, 157 F.3d at 1250. Because identifying hours reasonably expended by
reviewing each billing entry would be practically impossible in this case—plaintiff’s counsel
submitted 180 pages of billing records (Doc. 363-4)—the court will make a general reduction of
the hours claimed. “[A] general reduction of hours claimed in order to achieve what the court
determines to be a reasonable number is not an erroneous method, so long as there is sufficient
reason for its use.” Case, 157 F.3d at 1250.
Recognizing that at least a portion of the attorney’s fees claimed may be excessive or
duplicative, plaintiff has reduced her requested award from the lodestar amount by 10%. For
the reasons stated above and at the hearing, the Court will further reduce the total amount of
hours requested by 25%. Accordingly, the Court will award plaintiff $450,631.10 for
attorneys’ fees.
B. Costs
For items not reimbursable as attorney’s fees under 42 U.S.C. § 1988, the general costs
statute, 28 U.S.C. §1920, is controlling. Section 1920 allows certain costs, including fees of the
clerk, fees for recorded transcripts necessarily obtained for use in the case, fees for witnesses,
compensation for court appointed experts and interpreters, docket fees, and fees to cover the
costs of making copies of any materials where the copies are necessarily obtained for use in the
case. 28 U.S.C. § 1920. This district’s local rules provide a similar list of items that are
taxable costs, including transcripts, deposition costs, witness costs, expert witness fees,
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interpreter and translator fees, copies of papers, and costs for maps, charts, models, photographs,
summaries, computations and statistical summaries. D.N.M.LR-Civ. 54.2(a)–(f). Defendants
only challenge certain costs requested by plaintiff, and the Court will address each contested cost
individually.
1. Computer-Assisted Research
Defendants challenge plaintiff’s request for computer-assisted legal research because
plaintiff’s counsel does not specify what the legal research consisted of or what was researched.
Doc. 371 at 16. Nevertheless, defendants acknowledge that plaintiff discounted the subtotal in
legal research costs by 50%. Id. (citing Doc. 363 at 2).5 The Court agrees that 50% is a
reasonable discount and will award plaintiff 50% of her costs for computer-assisted legal
research. See Case, 157 F.3d at 1258 (affirming award of one half of electronic research
expenses when court was unable to separate research related to prevailing claims from other
research).
2. Travel Charges for Deposition in Phoenix
Defendants challenge travel costs to attend the deposition of defendant Elfigo Sandoval
in Phoenix for both plaintiff and two of her attorneys. Doc. 371 at 17. I will discount the
travel expenses to the extent plaintiff is charging for two attorneys and herself. I find that one
attorney traveling to attend the deposition is reasonable and necessary.
Plaintiff and two of her attorneys, Ms. Nichols and Ms. Manierre, traveled to attend
defendant Sandoval’s deposition in Phoenix, Arizona. The deposition lasted about three hours,

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Defendants pointed out that plaintiff had neglected to include three charges for computer-aided
research in the amount that was reduced by 50%. Doc. 371 at 16 n.1. Plaintiff corrected this
mistake and reduced her overall cost request by $273.22. See Docs. 372 at 12 n.2, 373 at 2.
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was video-taped, and only Ms. Nichols asked questions during the deposition. Ms. Nichols
explained at the hearing that Ms. Manierre was present so that she also could assess the witness’s
answers and demeanor while he testified. The deposition, however, was video-taped. Ms.
Manierre could have observed the witness’s testimony on the video. I find that Ms. Manierre’s
presence at the deposition was unnecessary and will not tax costs for her travel expenses.
Similarly, Ms. Tenorio’s presence was not necessary. Although she traveled to Phoenix for the
deposition, Ms. Tenorio only attended a portion of the deposition, demonstrating that her
presence was not necessary. Ms. Tenorio also could have watched the deposition on the video
tape. If both Ms. Manierre and Ms. Tenorio needed to participate in Mr. Sandoval’s deposition
in real time, they could have attended telephonically. Instead, they chose to travel to Phoenix to
attend in person. Defendants should not be charged for this decision. Travel expenses for
both Ms. Manierre and Ms. Tenorio will not be allowed. Accordingly, I will reduce plaintiff’s
cost bill by $1,373.96 to account for Ms. Manierre and Ms. Tenorio’s travel costs to Phoenix.6
3. Mock Trial
Defendants challenge plaintiff’s cost for a mock trial. Doc. 371 at 18. Ms. Nichols
explained at the hearing that she used the mock trial to test plaintiff’s themes and issues, as well
as to prepare plaintiff for what to expect at trial. I find that staging a mock trial as practice for
the actual trial is unnecessary and excessive. I will reduce plaintiff’s cost bill by $1,421.18 for
the cost of the mock trial.

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Because the cost bill did not designate what travel costs were attributable to whom, I added up
all the costs that appeared to be related to the travel to Phoenix (see Doc. 363-13 at 5−6), which
resulted in $2,060.95 total travel costs. I deducted two-thirds of this amount to account for Ms.
Manierre and Ms. Tenorio’s travel costs.
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4. Lodging for Plaintiff’s Father and Trial Clothing
Defendants challenge plaintiff’s cost for lodging for her father and trial clothing. Doc.
371 at 18. That cost has been redlined by plaintiff’s counsel and is a cost plaintiff does not
include in her cost bill. Similarly, the cost for trial clothing has been redlined and is not
included in the total costs requested by plaintiff. The Court will not include the lodging for
plaintiff’s father or the cost of trial clothing in its award of costs.
5. Mileage Fees
Defendants challenge plaintiff’s request for mileage fees for plaintiff’s family members.
Three of plaintiff’s family members—her father and two brothers—testified at trial.
Defendants argue that they all live in the same place and, therefore, only one mileage fee should
be allowed. I disagree. Because they were trial witnesses, all three are entitled to a witness
fee and mileage from their home in Las Vegas, New Mexico. As plaintiff pointed out at the
hearing, they were not required to car pool simply because they live in the same city. The
Court will not reduce the cost of the mileage for plaintiff’s father and brothers.
6. Jessica Berenson’s Fees During the Week of Trial
The defendants do not challenge plaintiff’s charge for $1,000.00 for Jessica Berenson’s
services, but do challenge an additional $400.00 in fees paid during the week of trial. Doc. 371
at 20. Plaintiff explained that the additional $400.00 was a billing error on Ms. Berenson’s part.
Doc. 372 at 13–14. The defendants accepted that explanation at the hearing, as does the Court.
The Court will allow the additional $400.00 payment to Ms. Berenson to be taxed as costs.
7. Other Costs
Other categories of costs challenged by defendants, including Federal Express Shipping,
charges listed for Richard Martinez, and a hotel stay for L. Delgado (Doc. 371 at 19), have all
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been redlined by plaintiff and are no longer contested issues.
After subtracting the travel costs ($1,373.96) and mock trial fees ($1,428.18) not allowed
by the Court from the total amount of costs claimed ($20,980.10), the Court will award costs in
the amount of $18,177.96.
IT IS THEREFORE ORDERED that plaintiff Estrella Tenorio’s Motion for an Award of
Attorneys’ Fees, Costs, and Expenses (Doc. 363) is GRANTED in part and DENIED in part as
follows: The Court awards plaintiff a total of $450,631.10 in attorneys’ fees, and $18,177.96 in
costs, for a subtotal of $468,809.06. The Court also awards gross receipts taxes of $36,918.71
at the rate of 7.875%, for a grand total award of $505,727.77 in attorneys’ fees and costs.
________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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