New Mexico Top Organics - Ultra Health, Inc. v. Kennedy et al

Filing 85

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker granting and denying in part Plaintiff's 74 MOTION for Attorney Fees and Costs. (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
NEW MEXICO TOP ORGANICS-ULTRA HEALTH, INC.,
Plaintiff,
Case No. 1:17-cv-00599-JAP-LF
v.
LARRY KENNEDY, DAN MOURNING,
and RAINA BINGHAM, in their official capacities,
Defendants.

MEMORANDUM OPINION AND ORDER
On January 16, 2019 this Court entered a final judgment in favor of Plaintiff New Mexico
Top Organics-Ultra Health. (Doc. 73). The Judgment incorporated the Court’s Findings of Fact,
Conclusions of Law, and Order (Doc. 72), in which the Court stated that it would award reasonable
attorney fees and costs to Plaintiff as the prevailing party under 42 U.S.C. § 1988. The Court
additionally requested that Plaintiff file an itemization of attorney fees and costs by January 30,
2019. On January 30, 2019, Plaintiff filed Plaintiff’s Motion for Attorney Fees and Costs (Motion)
(Doc. 74), requesting $92, 624.00 in fees and $868.44 in costs, plus New Mexico gross receipts
taxes at 8.4375% on the fees. On March 13, 2019, Defendants Larry Kennedy, Dan Mourning, and
Raina Bingham (Defendants) filed their response to Plaintiff’s Motion. (Response) (Doc. 80).
Defendants do not challenge that Plaintiff is the prevailing party for purposes of 42 U.S.C. § 1988,
but contend that Plaintiff’s requested attorney’s fees are unreasonable “given Plaintiff’s limited
success in bringing its lawsuit.” (Doc. 80 at 2). Defendants also challenge as excessive, redundant,
or unnecessary, some of the hours Plaintiff claims its counsel expended on this case. Plaintiff has
filed a reply to Defendants’ arguments. (Reply) (Doc. 83). The Court, having considered the
parties’ briefs, exhibits, and relevant law will grant Plaintiff’s Motion in part and deny it in part.

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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 fees, a 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 Cnty., 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 under the statute, nor do Defendants
contend that an award of attorney’s fees would be unjust. Rather, Defendants challenge the
reasonableness of the requested award.
A. Attorney’s 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 then if the hours expended on each are
reasonable. Id. at 1250. “The prevailing party must make a good-faith effort to exclude from a fee
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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 addition to the parties’ briefing and relevant law, the Court has reviewed billing
statements for Plaintiff’s attorneys Mr. Brian Egolf and Ms. Kristina Caffrey, see Pl. Ex. 1,
affidavits from Mr. Egolf and Ms. Caffrey pertaining to their respective education and experience,
see Pl. Exs. 3 & 4, and affidavits from New Mexico attorneys Joleen Youngers and John Bienvenu
discussing the reasonableness of Plaintiff’s requested hourly rates, see P. Exs. 5 & 6.
The Court will grant Plaintiff’s request for attorney fees but will reduce the $92, 624.00
fee request to reflect some duplicative work charged, block billing entries, and excessive time
spent on certain matters. Moreover, though Plaintiff is the undisputed prevailing party for
purposes of 42 U.S.C. § 1988, the Court will also adjust the fee award downward slightly to reflect
that Plaintiff obtained less than the full relief requested. Summary judgment was granted in
Defendants’ favor on Plaintiff’s request for monetary damages as precluded by the Eleventh
Amendment, and the Court significantly narrowed the scope of the injunctive relief Plaintiff had
requested. 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). Nevertheless, the Court agrees with Plaintiff
that this First Amendment case serves a public purpose by affirming an important right and
encouraging attorneys to represent civil rights litigants, and the award reflects this. See Barber v.
T.D. Williamson, Inc., 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
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accomplished if the plaintiff’s victory encourages attorneys to represent civil rights litigants,
affirms an important right, and/or provokes a change in the defendant’s conduct”). The hourly
rates requested by Plaintiff’s counsel are $350 for Mr. Egolf, $275 for Ms. Caffrey, and $120 for
paralegal work. Defendants did not challenge the reasonableness of Plaintiff’s requested hourly
rates for counsel or for paralegal work, and the Court will not alter the hourly rates. The Court will
award Plaintiff’s counsel $81,000.00 in attorney fees, plus applicable gross receipts taxes.
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. Plaintiff provided a list of costs incurred by Plaintiff in this case. See Pl. Ex. 2.
Defendants do not challenge the costs, and the costs listed fall within the gambit of 28 U.S.C. §
1920 and appear to the Court to be reasonable. Accordingly, the Court will grant Plaintiff’s full
request for costs in the amount of $868.44.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Attorney Fees and Costs
(Doc. 74) is granted in part and denied in part. The Court grants Plaintiff’s full request for costs
but reduces the amount of attorney fees requested. Accordingly, the Court awards Plaintiff
$81,000.00 in attorney’s fees, plus New Mexico gross receipts tax at 8.4375%, and $868.44 in
costs.

_________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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