Gomez v. Hardie et al

Filing 44

Opinion and Order Granting in Part and Denying in Part Motion for Reimbursement of Out of Pocket Expenses (Pro Bono) 43 . Signed on 9/23/13 by Magistrate Judge Janice M. Stewart. (jlr)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
JORGE R. BLACKMORE GOMEZ,
Plaintiff,
3:13-cv-00161-ST
v.
OPINION AND ORDER
MARK H. HARDIE, et al,
Defendants.
STEWART, Magistrate Judge:
This Court appointed Jon W. Monson as pro bono counsel for plaintiff, Jorge Gomez, for
the limited purpose of filing an Amended Complaint. Now that the Amended Complaint has
been filed, Mr. Monson has filed a Motion for Reimbursement of Out-of-Pocket Expenses in the
sum of $1,095.75. That sum includes $171.80 for copying costs and $922.89 for “other” costs
which consist of $1.06 for postage and $922.89 for computer legal research. The motion is
submitted pursuant to the Pro Bono Program Procedures which provide in relevant part as
follows:
If an appointed attorney/law firm accepts representation and incurs costs
that are not recoverable from the opposing party (e.g., copy costs,
transcript costs, travel expenses, telephone charges, etc.), a Motion for
Reimbursement of Out-of-Pocket Expenses may be filed. The maximum
amount for reimbursement of out-of-pocket expenses is $3,000.00 per
case. When an Order Granting Motion for Out-of-Pocket expenses is issued,
a copy is sent to the Attorney Admissions Fund group for reimbursement.

1 – OPINION AND ORDER

By accepting an appointment from the Court to represent an indigent litigant, pro bono
counsel expects that, win or lose, he or she will provide legal representation at no charge to that
litigant and the Court. However, if the litigant becomes the prevailing party, then pro bono
counsel may obtain reimbursement from the opposing party for time incurred through an
attorney fee award under a fee-shifting statute, such as 42 USC § 1988, and for taxable costs
under 28 USC § 1920. Otherwise, pro bono counsel accepts the financial burden of representing
the litigant, regardless of the outcome.
This Court has recognized that the financial burden to pro bono counsel may deter
many lawyers from accepting an appointment by the Court, especially for sole
practitioners or small firms. Therefore, as an inducement to participate in the Pro Bono
Program, the Court has authorized reimbursement to pro bono counsel for out-of-pocket
expenses in some situations. Such expenses include: (1) those incurred to investigate the
claims and defenses in order to determine if representation can be accepted;1 and
(2) those which are never recoverable from the opposing party even when the client is the
prevailing party, such as expert witness fees.
What out-of-pocket expenses should be reimbursed to pro bono counsel becomes
complicated when, as here, the appointment is not an All Purpose Appointment, but is a
Specific Purpose Appointment. In that event, no opportunity exists for pro bono counsel
to recover taxable costs should the client become the prevailing party. On the other hand,
the costs incurred by pro bono counsel should be fewer for a Specific Purpose
Appointment, thus reducing the need for reimbursement by the Court. When the Pro

1

According to the initial Pro Bono Program Procedures, the Court appointed pro bono counsel to investigate the
claims and/or defenses and then either accept or reject representation. The procedures were later revised and now
allow either an All Purpose Appointment or a Specific Purpose Appointment for such purposes as conducting a
review and investigating claims and/or defenses, filing an amended pleading, or mediation.

2 – OPINION AND ORDER

Bono Program Procedures were revised to allow a Specific Purpose Appointment, such
as filing an amended complaint, it did not address any commensurate change that might
be required in defining what costs may be reimbursable for such an appointment.
The issue is further complicated for the cost of computer legal research which is
not taxable under 28 USC § 1920, but may properly be part of an attorney fee award.
Certain out-of-pocket expenses that cannot be taxed as costs under 28 USC § 1920 are
nonetheless compensable under certain fee-shifting statutes awarding attorney fees to a
prevailing party “since they are typically charged to paying clients by private attorneys.”
Davis v. City of San Francisco, 976 F3d 1536, 1556 (9th Cir 1992). Such expenses
include computer legal research “if separate billing for such expenses is ‘the prevailing
practice in the local community.’” Trustees of Const. Indus. & Laborers Health &
Welfare Trust v. Redland Ins. Co., 460 F3d 1253, 1258-59 (9th Cir 2006) (citation
omitted). Thus, if pro bono counsel had been appointed to represent Gomez for All
Purposes and should Gomez ultimately prevail, then his pro bono counsel could recover
the cost of computer legal research from the opposing party, assuming that the prevailing
practice in Portland is to separately bill such expenses to clients, and not be entitled to
reimbursement from the Court.
Mr. Jonson has provided no evidence that it is the prevailing practice in the
Portland legal community to bill computer legal research to clients separately from
hourly rates. Many firms pay a flat monthly rate for these services as part of the
overhead in lieu of charging clients separately on a “per search basis.” However, even if
the prevailing practice in the Portland legal community is to bill computer legal research
costs to clients and not include them in the firm’s general overhead, this Court is not

3 – OPINION AND ORDER

persuaded that they should be included in the out-of-pocket expenses which are
reimbursable to pro bono counsel.
One premise for awarding costs for computer legal research as part of an attorney fee
award is that it “reduces the number of attorney hours spent on the case.” Frevach Land Co. v.
Multnomah County, 2001 WL 34039133, at *34 (D Or Dec. 18, 2001) (citations omitted).
Without the benefit of computer legal research, Mr. Jonson would have been required to spend
more hours free of charge to assist Gomez in filing an Amended Complaint. To reimburse him
for the cost of computer legal research is essentially equivalent to paying him attorney fees.
The Pro Bono Program Procedures are admittedly vague with respect to what out-ofpocket expenses may be reimbursed to pro bono counsel, especially for a Specific Purpose
Appointment. However, the Court retains full and complete discretion in this area. Despite its
great appreciation for the work of Mr. Monson as pro bono counsel, allowing reimbursement for
the cost of computer legal research, which often can be quite high, is a door that this Court is
reluctant to open with its limited resources. Therefore, as a matter of policy, the cost of
computer legal research must be borne by pro bono counsel and not reimbursed by the Court.
However, the copying and postage costs incurred for the specific purpose of filing an Amended
Complaint do constitute out-of-pocket expenses which the Court will reimburse.
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4 – OPINION AND ORDER

ORDER
For the reasons stated, the Motion for Reimbursement of Out-of-Pocket Expenses (docket
#43) is GRANTED in part and DENIED in part. Plaintiff’s former pro bono counsel is entitled
to reimbursement for his expenses in the sum of $172.86 (copying costs of $171.80 and postage
of $1.06).
DATED September 23, 2013.
s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

5 – OPINION AND ORDER