Lemke v. Walker
Filing
72
ORDER: Granting Motion for Attorney Fees 67 in favor of Plaintiff Lemke and against defendant Walker in the amount of $41,049.50 in attorneys' fees and $814.81 in costs. Plaintiff shall submit a proposed final judgment on o r before 9/2/2014, which shall reflect the disposition of the case against defendant United States, the default judgment against defendant Walker, and the award of attorneys' fees and costs (See formal order attached). Ordered by Judge David O. Carter. (cw)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Date: August 12, 2014
Case No. CV 11-6111-DOC
Title: SHELLEY A. LEMKE v. MARK JOHN WALKER, ET AL.
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Christy Weller
Courtroom Clerk
Not Present
Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF:
ATTORNEYS PRESENT FOR DEFENDANT:
None Present
None Present
PROCEEDINGS (IN CHAMBERS): ORDER GRANTING MOTION FOR
AWARD OF ATTORNEY FEES [67]
Before the Court is Shelley A. Lemke’s Motion for Attorney Fees Against
Defendant Walker (“Motion” or “Mot.”) (Dkt. 67). Having considered the written
submissions, the Court GRANTS the Motion.
I. BACKGROUND
The parties are familiar with the facts of this case, which was one of six that arose
from Defendant’s pattern of conduct, so the Court will not recite them in detail.
Shelley A. Lemke (“Ms. Lemke”) was convicted of perjury in May 1998, and was
eventually placed on supervised release under Defendant Mark John Walker (“Officer
Walker”) of the United States Department of Parole and Probation. FAC ¶¶ 6–7 (Dkt.
14). During this time, Ms. Lemke alleges that Officer Walker coerced her into engaging
in sexual acts with him, including intercourse. Id. ¶¶ 8–12. These acts occurred, for
example, during six home visits and one occasion when he ordered her to meet him at a
casino hotel for a “supervision meeting.” Decl. of Shelley Lemke for Default Judgment
(Dkt. 45) ¶¶ 5–8.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Case No. CV 11-6111-DOC
Date: August 12, 2014
Page 2
Officer Walker told Ms. Lemke that if she complied, he “could make some of
[her] problems go away.” Id. ¶ 6. He also threatened her that “he had the ability to cause
her problems.” FAC ¶ 10.
Even after her supervised release ended, she was too frightened to come forward
because of threats from Officer Walker and her criminal and drug history. FAC ¶ 14. In
July 2010, she found out that Office Walker had been indicted for engaging in similar
acts of sexual coercion with other supervisees. Id. ¶ 14. She then filed a claim with the
Administrative Office of the United States Courts on July 12, 2011. Decl. of John L.
Chastain ¶¶ 4–10 (Dkt. 26). Her claim was finally denied on January 18, 2012. Decl. of
John L. Chastain ¶¶ 4–10. On May 4, 2012, she brought an amended complaint naming
the United States as a party defendant. See generally FAC.
On November 13, 2012, this Court dismissed Ms. Lemke’s third claim for relief
against the United States with prejudice because the Court lacked subject matter
jurisdiction to consider it. November 13, 2012 Order (Dkt. 35). The Court reconsidered
its previous decision in light of an intervening change in the law, Wong v. Beebe, 732
F.3d 1030 (9th Cir. 2013) (en banc). See Minute Order (Dkt. 54). The Court exercised
its discretion to hold that the statute of limitations on Ms. Lemke’s claims was equitably
tolled, and decided that dismissal was inappropriate. See id. at 3–6.
The Court has also granted Ms. Lemke’s Motion for Default Judgment against
Defendant Mark John Walker. See Minute Order (Dkt. 62).
Now, Ms. Lemke moves the Court for attorneys’ fees under 42 U.S.C. § 1988
against Officer Walker. See generally Mot. As of the date of this order, Officer Walker
has not filed an opposition to the Motion. Any opposition now filed would be untimely.
A. LEGAL STANDARD
Under 42 U.S.C. § 1988, the Court may, in its discretion, grant a reasonable
attorneys’ fee as part of the costs to the prevailing party. 42 U.S.C. § 1988(b). The
lodestar formula should be used to determine a reasonable figure for an award of
attorneys’ fees. A lodestar figure is calculated by “multiplying the hours spent on a case
by a reasonable hourly rate of compensation for each attorney involved.” Pennsylvania
v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563 (1986). “A ‘strong
presumption’ exists that the lodestar figure represents a ‘reasonable’ fee, and upward
adjustments of the lodestar are proper only in ‘rare’ and ‘exceptional’ cases.” Jordan v.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Case No. CV 11-6111-DOC
Date: August 12, 2014
Page 3
Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987) (quoting Delaware Valley, 478
U.S. at 565).
A plaintiff is considered a prevailing party if it succeeds on any significant issue in
litigation that gives some benefit that plaintiff sought in bringing the suit. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). To satisfy this requirement, the suit must have
produced a material alteration of the legal relationship between the parties. Buckhannon
Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604
(2001). This alteration may be the result of an enforceable judgment or comparable relief
through a consent decree. Farrar v. Hobby, 506 U.S. 103, 111 (1992).
Once the Court has determined that attorneys’ fees are warranted in a given case,
the Court must then assess whether the amount of fees requested is reasonable. “In
setting a reasonable attorney’s fee, the district court should make specific findings as to
the rate and hours it has determined to be reasonable.” Gracie v. Gracie, 217 F.3d 1060,
1070 (9th Cir. 2000) (quoting Frank Music Corp. v. Metro-Goldwyn Mayer Inc., 886
F.2d 1545, 1557 (9th Cir. 1989)). The first step the district court must take is to
“determine the presumptive lodestar figure by multiplying the number of hours
reasonably expended on the litigation by the reasonable hourly rate.” Gracie, 217 F.3d at
1070 (internal quotation marks and citation omitted). Next, the district court should,
where appropriate, “adjust the ‘presumptively reasonable’ lodestar figure based upon the
factors listed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), that
have not been subsumed in the lodestar calculation.” Id. (internal citation and quotation
marks omitted).
II. ANALYSIS
A. Attorney’s Fees
1. Prevailing Party
Under 42 U.S.C. § 1988, the Court may, in its discretion, grant a reasonable
attorneys’ fee as part of the costs to the prevailing party. 42 U.S.C. § 1988(b). A
plaintiff is considered a prevailing party if the suit produced a material alteration of the
legal relationship between the parties. Buckhannon Bd. & Care Home, Inc. v. W.
Virginia Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001). Here, Ms. Lemke
was clearly the prevailing party, having attained a judgment against Officer Walker. See
Minute Order, June 5, 2014 (Dkt. 62).
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Case No. CV 11-6111-DOC
Date: August 12, 2014
Page 4
2. Reasonableness of Rates
Typically, reasonable attorney’s fees are guided by the lodestar method, which
multiplies the number of hours reasonably expended by a reasonable hourly rate. Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998) (citing Blum v. Stenson, 465 U.S.
886, 897 (1984)).
Reasonable billing rates are determined by the “prevailing market rates in the
relevant community[.]” Blum, 465 U.S. at 895-96; see also Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 979 (9th Cir. 2008) (“[W]hen determining a reasonable hourly rate,
the relevant community is the forum in which the district court sits.”). “The burden is on
the [fee applicant] to produce evidence that the requested rates are in line with those
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Blum, 465 U.S. at 895. “Affidavits of the plaintiffs’
attorney and other attorneys regarding prevailing fees in the community, and rate
determinations in other cases, particularly those setting a rate for the [fee applicant’s]
attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of
Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “In most cases, the
lodestar figure is presumptively a reasonable fee award.” Stonebrae, L.P. v. Toll Bros.,
No. C-08-0221, 2011 U.S. Dist. LEXIS 39832, at *19 (N.D. Cal. Apr. 7, 2011) (citing
Hensley, 461 U.S. at 430 n4).
Ms. Lemke requests the following rates for her counsel: $450/hour for Michael
Rose, $400/hour for Beth Creighton, $335/hour for Laura Fine Moro, $215/hour for Gail
Stevens, $120/hour for Carole Delogu-Clark, and $120/hour for Sydney Boling. Mot. at
12. Ms. Lemke has presented the Court with declarations that show that these rates are in
line with the prevailing market rates in the community for the type of work that the case
required. See, e.g., Decl. of John Folawn at 1–2. Having reviewed these submissions,
the Court finds that the rates charged by Ms. Lemke’s attorneys are reasonable.
3. Reasonableness of Hours Expended
“[T]he fee applicant bears the burden of documenting the appropriate hours
expended in the litigation and must submit evidence in support of those hours worked.”
Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)). A fee applicant “should make a good-faith effort to exclude .
. . hours that are excessive, redundant, or otherwise unnecessary. Hensley, 461 U.S. at
433. After the applicant has made its initial showing, the burden shifts to the non-
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Case No. CV 11-6111-DOC
Date: August 12, 2014
Page 5
applicant to show that specific time expenditures were unreasonable. Gates, 987 F.2d at
1449–51.
Plaintiff’s counsel present detailed records of the number of hours dedicated to
each task. See Decl. of Beth Creighton Ex. A. Altogether, counsel and paralegals at
Creighton & Rose spent 144.6 hours on this action, including investigations, discovery,
drafting the complaints, opposing the motion to dismiss, and drafting the motion for
default judgment. See id. at 1–14. Having reviewed these records, the Court finds that
the hours that Ms. Lemke’s attorneys expended on this action are reasonable.
4. Total Attorneys’ Fees
The following chart sets out the reasonable fees for Ms. Lemke’s counsel:
Name
Hours
Rate
Fees
Michael Rose
29.7
$450
$16,360
Beth Creighton
40.9
$400
$666.50
Laura Fine Moro
10
$335
$13,365
Gail Stevens
3.1
$215
$3,350
Carole Delogu-Clark
28.8
$120
$3,456
Sydney Boling
32.1
$120
$3,852
Altogether, Ms. Lemke’s counsel are entitled to $41,049.50 in attorneys’ fees.
B. Litigation Expenses and Costs
In addition to attorneys’ fees, Ms. Lemke seeks to recover litigation expenses and
costs. Out-of-pocket expenses and costs billed to a fee-paying client are normally
compensable under 42 U.S.C. § 1988. Chalmers v. City of Los Angeles, 796 F.2d 1205,
1216 n.7 (9th Cir. 1986).
Ms. Lemke claims $814.81 in out-of-pocket expenses. Mot. at 13. She attaches
documentation reflecting that those expenses were incurred in the normal course of
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CIVIL MINUTES – GENERAL
Case No. CV 11-6111-DOC
Date: August 12, 2014
Page 6
litigation, such as searching for and photocopying documents. See Creighton Decl. Ex.
B; id. ¶ 29. The Court finds that these litigation expenses and costs are reasonable.
Therefore, under 42 U.S.C. § 1988, Ms. Lemke is entitled to $814.81 in reimbursed
litigation expenses and costs.
III.
DISPOSITION
For the reasons explained above, the Court GRANTS the Motion for Attorneys’
Fees Against Defendant Mark John Walker. Defendant Walker is liable for a total of
$41,049.50 in attorneys’ fees and $814.81 in costs.
Plaintiff Shelley Lemke is ordered to file a proposed final judgment on or before
September 2, 2014. The final judgment should reflect the disposition of the case against
Defendant United States, the default judgment against Defendant Walker, and the award
of attorneys’ fees and costs.
The Clerk shall serve this minute order on the parties.
MINUTES FORM 11
CIVIL-GEN
Initials of Deputy Clerk
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