Gragert v. Henderick et al

Filing 108

ORDER granting 71 Plaintiff's Application for Attorney Fees; granting 94 Plaintiff's Supplemental Application for Attorney Fees. Signed by Honorable Robin J. Cauthron on 8/4/14. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LOUISE GRAGERT, Administrator
of the Estate of George Louis Gragert,
a/k/a George Gragert,
Plaintiff,
vs.
ED LAKE, Director of Oklahoma
Department of Human Services; and
JOEL NICO GOMEZ, Director of
Oklahoma Health Care Authority,
Defendants.

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Case Number CIV-11-984-C

MEMORANDUM OPINION AND ORDER
Plaintiff has filed an Application for Attorneys’ Fees, as well as a Supplemental
Application for Attorneys’ Fees. The parties have exhaustively briefed the issues. At issue
in this briefing is the amount of attorneys’ fees to be awarded to Plaintiff.1
In her application for fees, Plaintiff requests fees and costs totaling $143,417.03.2 In
support of her application, Plaintiff has submitted copies of billing records submitted by her
attorneys, as well as affidavits from her attorneys outlining the nature of those expenses.

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Defendants do not contest Plaintiff’s eligibility for attorneys’ fees. Because
Plaintiff brought this action pursuant to 42 U.S.C. § 1983, her request for fees is governed
by 42 U.S.C. § 1988. Defendants’ challenge is limited to the amount of fees to be awarded.
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As the Court notes below, Plaintiff’s inclusion of costs is improper. Costs are a
separate issue from attorneys’ fees. The request for each should be separate. The Court has
attempted to determine which charges in the amount sought are attorneys’ fees and which are
costs. Where there was any question, the Court used the lower figure, as Plaintiff should
bear the burden of establishing entitlement.

Defendants object to the request, raising a number of arguments they say indicate the fee
request should be substantially reduced. The Court will consider each of Defendants’
arguments.
Plaintiff requests hourly rates from $350 to $220 for the lesser experienced attorneys.
Defendants challenge these rates, arguing they exceed what is reasonable. In support of their
challenge, Defendants have offered the affidavit of a local attorney who opines that the rates
sought by Plaintiff’s counsel are excessive. In reply, Plaintiff counters with her own
affidavit, which argues that the rates sought are reasonable and customary in the market.
The “reasonable hourly rate” to be used should be comparable to rates in the
prevailing community charged by attorneys with relatively similar skill, experience, and
reputation. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (citing Blum v.
Stinson, 465 U.S. 886, 895 n.11 (1984)). When seeking attorneys’ fees as a prevailing party,
counsel is not automatically entitled to his or her normal rate. Instead, the parties should
submit, and the Court consider, evidence of the hourly rate the attorneys would be able to
charge if working in the civil rights field. Case v. Unified Sch. Dist. No. 233, Johnson Cnty.,
Kan., 157 F.3d 1243, 1257 (10th Cir. 1998).
As noted, both parties have submitted affidavits in support of their arguments
regarding the appropriate hourly rate. The affidavit submitted by Defendants reflects a lack
of experience and appreciation for the hourly rate charged by Plaintiff’s counsel, as the
affiant has only represented individuals and government entities sued as defendants in civil
rights cases. There is a distinct difference in the rate paid by a government entity and a
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private-pay client, and, in any event, Mr. Lee’s experience does not take into account the
contingencies of plaintiff representation. The affidavit submitted by Plaintiff indicates that
the affiant practices in the fields relevant here. Defendants note in their objection that the
attorney has not appeared in a civil rights, Medicaid, or similar case in this district.
However, that issue is not dispositive on his experience. Mr. Shiles relies not only on his
own experience, but also attests to conversations with other attorneys regarding the rates
charged for work similar to that performed by Plaintiff’s counsel.

Based on those

conversations, Mr. Shiles avers the rates sought are reasonable.
In addition to the evidence presented by the parties regarding the appropriate hourly
rate for counsel practicing civil rights law in this jurisdiction, the Court will rely on its own
experience and knowledge regarding an appropriate hourly rate. See Lucero v. City of
Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987). The Court recently approved an hourly rate
of $295.00 per hour for senior counsel and $245.00 per hour for junior counsel in Layton v.
Board of County Commissioners of Oklahoma County, CIV-09-1208 (Dkt. No. 289). Given
the additional complexities of the issues in this case, the Court finds additional compensation
warranted. Further, this case is but one of several Plaintiff’s counsel has litigated before the
Court. Based on that knowledge and experience with counsel, the unique issues of first
impression, the complicated law involved, and considering the skill demonstrated by counsel
in litigating this case, the Court finds the hourly rates sought by Plaintiff’s counsel to be

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reasonable. Likewise, the hourly rate for support staff and paralegals sought by Plaintiff is
reasonable.3
Defendants challenge a number of entries they argue are duplicative. After review of
the entries and consideration of Plaintiff’s response, the Court finds the following entries are
duplicative: Entries 50, 57, 101, 116, 212, 298, 316, 317, 329, 330, 331, 332, 333, and 336.
Those entries, totaling fees in the amount of $4,745.00, will be deducted from Plaintiff’s fee
request.
Defendants challenge a number of actions taken by Plaintiff’s counsel, arguing they
were not taken to vindicate her civil rights. First, Defendants challenge the time spent for
filing Plaintiff’s Medicaid application. According to Defendants, until that application was
denied, there could be no violation of civil rights. However, as Plaintiff establishes, the
Notice of Denial in this case was issued on April 18, 2011. It was after that denial that
Plaintiff hired counsel and began the process of pursuing her claim for approval of her
husband’s Medicaid benefits. Each of the time entries from counsel and support staff for this
application were steps necessary in the process to ensure Plaintiff’s husband’s civil rights
were not violated. Defendants’ objections to this time are overruled.

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In several places in both its response and surreply, Defendants argue that certain
attorneys or paralegal staff failed to submit affidavits in support of their request for fees.
Notably, Defendants cite no legal authority requiring such affidavits, nor is the Court aware
of any such authority. Certainly, the managing partner of the firm, who submitted an
affidavit in this case, is competent to offer evidence regarding the rates charged by the junior
attorneys and support staff, as well as the hours expended. To the extent Defendants argue
otherwise, those arguments are without merit.
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Defendants also challenge two entries related to addressing an issue with Adult
Protective Services. Without regard to Plaintiff’s unsupported accusations, the Court finds
that the time spent on this issue is reasonably related to the services provided in securing
benefits and therefore is compensable as time spent vindicating civil rights.
Defendants challenge time spent by the law firm in seeking payment of fees from
Plaintiff, specifically entries 283, 284, and 286-288. The Court agrees that this time is not
properly chargeable to Defendants. Accordingly, the fee request will be reduced by $350.00.
Defendants next challenge Plaintiff’s request for fees for travel. Defendants set out
instances where Plaintiff’s counsel billed their full hourly rate for time spent traveling to
Oklahoma City for court hearings and/or to Denver for court hearings. The Court agrees that
full hourly rate compensation for all travel time is not appropriate in this case. See Smith v.
Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990). Plaintiff essentially concedes this point,
noting that certain reductions should be made, and after consideration of Plaintiff’s
arguments, the Court finds that five hours of time, or $1,750.00, should be deducted.
Defendants next challenge Plaintiff’s use of “block billing,” arguing that it was
inappropriate and impossible to distinguish the tasks performed or their reasonableness. The
Court has reviewed each entry challenged by Defendants and finds that they do not amount
to block billing. Block billing occurs when attorneys’ time records fail to document
adequately how an attorney utilized large blocks of time. Case, 157 F.3d at 1250. As
Plaintiff notes, the vast majority of the entries challenged by Defendants are for less than an
hour of time. While Defendants are correct that certainly a plaintiff cannot break tasks up
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into small increments in order to avoid block billing, what is apparent from Plaintiff’s billing
records is that the amount of time charged was appropriate for the task performed and the
description was adequate to reach that conclusion. Consequently, the challenged entries are
not block billing and are not improper.
Defendants next raise a number of issues related to purported excessive hours claimed
by Plaintiff. Defendants challenge the amount of time spent on research, some miscellaneous
areas of excess hours, and time spent on discovery or responding to Defendants’ Motion for
Summary Judgment. The Court has considered each of Defendants’ arguments and
examined the challenged time entries. The Court finds Defendants’ arguments without
support. As Plaintiff notes, a number of the issues raised by Defendants were pursued fully
for the first time in this case. Certainly, Plaintiff is entitled to adequately research the issue
and develop the law as fully as necessary to state her position. The Court notes that a number
of the arguments raised or the time challenged by Defendants would have been unnecessary
had Defendants not been insistent on raising challenges with little to no merit. Clearly, the
Court will not penalize Plaintiff for spending time responding to arguments raised by
Defendants. In short, the Court finds no instances of excessive hourly billing and finds no
need for reduction in Plaintiff’s fee request for this category.
Defendants also challenge certain entries by arguing that Plaintiff’s counsel were
doing tasks more properly done by support staff and that those tasks are not items for which
attorneys’ fees can be recovered.

After consideration of the entries challenged by

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Defendants, the Court finds that certain of them should be reduced in an amount totaling
$457.00.
Defendants challenge Plaintiff’s request for $8,518.26 in interest owed by Plaintiff
on the unpaid attorneys’ fees. Plaintiff has offered no legal authority demonstrating this
amount is recoverable from Defendants as either attorneys’ fees or costs. Consequently, the
fee request will be reduced by that amount.
Plaintiff seeks fees for work performed in the probate case of her husband. While
some of that work may have been necessary for the conclusion of this case, Plaintiff makes
no attempt to distinguish between necessary and unnecessary work. Accordingly, all time
spent on the probate case, totaling $4,128.33, will be deducted.
After considering the time entries submitted by Plaintiff, the Court finds the fee
request totals $104,746.55.4 From that amount, the above-noted deductions in the amount
of $11,430.33 result in a fee award of $93,316.22.
Finally, Defendants challenge a number of the costs sought by Plaintiff. Although the
docket shows costs were awarded but stricken (Dkt. No. 79), costs were never actually
awarded; rather, the cost hearing was stricken by agreement of the parties (id.). No further
action has been taken regarding the costs. In accordance with Fed. R. Civ. P. 54(d)(1) and
LCvR54.1, requests for costs are in the first instance decided by the Court Clerk and any

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This amount is different than the amount Plaintiff requested. The Court reduced that
amount by costs requested by Plaintiff and the interest counsel charged Plaintiff on the pastdue fee amounts. These deductions resulted in the actual amount of attorneys fees sought by
Plaintiff.
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objection to those must then be pursued in accordance with the Rules. Plaintiff should,
within five days of the date of this Order, inform the clerk that costs are again ripe for
consideration. Costs will not be considered or awarded at this time.
As set forth more fully herein, Plaintiff’s Application for Attorneys’ Fees (Dkt. No.
71) and Plaintiff’s Supplemental Application for Attorneys’ Fees (Dkt. No. 94) are
GRANTED. Plaintiff is awarded attorneys’ fees in the amount of $93,316.22.
IT IS SO ORDERED this 4th day of August, 2014.

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