Soltesz v. Rushmore Plaza Civic Center

Filing 169

ORDER granting in part and denying in part 148 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 9/8/15. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 11-5012-JLV

KYLE SOLTESZ,
Plaintiff,

ORDER

vs.
RUSHMORE PLAZA CIVIC CENTER, a
political subdivision of the City of Rapid
City, and CITY OF RAPID CITY, a
political subdivision of the State of
South Dakota,
Defendants.
INTRODUCTION

On November 21, 2014, a jury returned a verdict in the amount of
$112,562.00 in favor of plaintiff and against defendants and a verdict in the
amount of $14,820.62 in favor of defendants and against plaintiff. (Docket
140). On November 25, 2014, a judgment was entered consistent with the
jury’s verdict.1 (Docket 142). On December 23, 2014, plaintiff timely filed a
motion for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988(b), together
with supporting affidavits and the law firm’s billing records. (Dockets 148, 150,
151, 151-1 & 161). Defendants oppose plaintiff’s motion. (Docket 157).
Because of defendants’ objections and a number of other factors, the law firm

1An

amended judgment including prejudgment interest was filed on
January 21, 2015. (Docket 159).

filed an amended billing statement.2 (Docket 161-1). For the reasons stated
below, plaintiff’s motion is granted in part and denied in part.
DISCUSSION
Plaintiff Kyle Soltesz filed a complaint against defendants alleging
violations of his constitutional rights under 42 U.S.C. ' 1983 and state law.
(Docket 1). Those claims included state claims for breach of lease, conversion,
and interference with business relationships, and two federal claims under
42 U.S.C. § 1983, identified as an unreasonable seizure claim and a due process
claim. Id. at pp. 4-6. Plaintiff also sought an award of attorneys’ fees and
costs. Id. at p. 7 ¶ 3. Following a four-day jury trial, plaintiff prevailed on all
five claims against the defendants. (Docket 140).
Plaintiff now seeks an award of his attorneys’ fees, costs and expert
witness fees pursuant to 42 U.S.C. § 1988(b) & (c). (Docket 148). Federal law
specifically directs when a plaintiff prevails on his § 1983 claim “the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part
of the costs . . . .” 42 U.S.C. § 1988(b). If a plaintiff prevails on a § 1981 or
§ 1981a claim, expert witness fees also may be assessed. 42 U.S.C. § 1988(c).
Section 1988 was enacted to provide access to the judicial process for
individuals asserting civil rights claims. Hensley v. Eckerhart, 461 U.S. 424,
2Defendants

did not seek permission to file a surreply brief in response to
plaintiff’s amended billing statement. Customarily the court will permit a party
to file a surreply when “the reply which proceeded the surreply contained new
information for which the opportunity to respond is needed.” Atuahene v.
South Dakota State University, CIV. 07-4099-KES, 2009 WL 1586952 at *8
(D.S.D. June 4, 2009) (citations omitted).
2

429 (1983) (“Congress enacted the Civil Rights Attorney’s Fees Awards Act of
1976, 42 U.S.C. § 1988, authorizing the district courts to award a reasonable
attorney’s fee to prevailing parties in civil rights litigation.”). Twelve factors are
generally considered relevant in the court’s analysis of the amount of attorneys’
fees to be awarded. Those are:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly;
(4) the preclusion of employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar
cases.
Id. at 429-30 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717-19 (5th Cir. 1974)).
“[P]laintiff’s claims for relief . . . involve a common core of facts [and were]
based on related legal theories.” Id. at 435. Because of the integration of
claims, plaintiff’s counsel’s time was focused on “the litigation as a whole,
[which] mak[es] it difficult to divide the hours expended on a claim-by-claim
basis.” Id. As a result, the court must “focus on the significance of the overall
relief obtained by the plaintiff in relation to the hours reasonably expended on
the litigation.” Id. “Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee. Normally this will encompass

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all hours reasonably expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified.” Id.
“Attorney’s fees are within the broad discretion of the district court and will
not be reversed absent an abuse of discretion.” Hanig v. Lee, 415 F.3d 822, 825
(8th Cir. 2005) (referencing Harmon v. City of Kansas City, 197 F.3d 321, 329
(8th Cir.1999)). “The starting point in determining attorney fees is the lodestar,
which is calculated by multiplying the number of hours reasonably expended by
the reasonable hourly rates.” Id. (citing Fish v. St. Cloud State University, 295
F.3d 849, 851 (8th Cir. 2002) (referencing Hensley, 461 U.S. at 433)). “When
determining reasonable hourly rates, district courts may rely on their own
experience and knowledge of prevailing market rates.” Id. (referencing Warnock
v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2004)).
Defendants oppose plaintiff’s motion for attorneys’ fees for a number of
reasons. First and foremost is their claim that defendants’ motion for judgment
as a matter of law (Docket 147) should be granted thereby defeating plaintiff’s
§ 1983 claims. (Docket 157 at p. 6). This argument fails as the court denied
defendants’ motion for judgment as a matter of law. (Docket 168). Defendants’
remaining objections to an award of attorneys’ fees under § 1988(b) will be
addressed as the court completes its analysis of the factors relevant to the
amount which should be awarded as attorneys’ fees in this case. The court will
separately focus on the factors which are pertinent to this particular case.

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Skill, Experience, Reputation, and Ability of Attorneys
Plaintiff has been represented by the Bangs, McCullen, Butler, Foye &
Simmons, L.L.P., (“Bangs McCullen”) law firm of Rapid City, South Dakota, since
this litigation was filed in February 2011. (Docket 1). The attorneys of Bangs
McCullen have an excellent reputation as trial attorneys. A number of their
senior associates hold AV ratings from Martindale-Hubbell. (Docket 151 ¶ 3(c),
(d) & (e)). The principal trial attorneys for Mr. Soltesz have wide experience in
trying civil jury cases. Id. ¶ 3(a), (b) & (f). The court consistently finds the
attorneys of Bangs McCullen well-prepared, articulate and focused when
appearing in federal court.
Time and Labor
While a number of attorneys provided legal services to Mr. Soltesz
throughout this litigation, the primary attorneys have been Rodney Schlauger,
Eric Pickar and Sarah Baron-Houy. Mr. Schlauger’s hourly rate as a senior
partner in the law firm is $250. (Docket 151 ¶ 3). Until January 2013, Mr.
Pickar’s hourly rate as an associate was $175 and since then as a junior partner
his rate was $200 per hour. Id. Ms. Baron-Houy’s hourly rate as an associate
until January 2014 was $175 and then as a junior partner was $200.3 Id.
Four paralegals who worked with the attorneys bill for their services at $75 per
3Other

members of the firm who played minor roles in this litigation are
Daniel Duffy, Jeffrey Hurd, and Greg Erlandson, all senior partners whose
hourly rates are $250 per hour. (Docket 151 ¶ 3). Associate members of the
firm involved in this litigation are Mark Marshall and Benjamin Tronnes, whose
hourly rates are $175 and $150, respectively. Id.
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hour. Id. ¶ 4. Defendants have not objected to or challenged the hourly rates
sought by Bangs McCullen.
The court previously concluded $175 per hour is an appropriate rate for an
attorney with the legal background comparable to the associates who
participated in this litigation and $250 per hour was appropriate for an attorney
with a comparable legal background as the senior partners in this case. See
Hautala v. Progressive Direct Insurance Co., CIV. 08-5003-JLV, Docket 77 at p.
1 (D.S.D. 2011); Beyer v. Medico Insurance, et al., CIV. 08-5058-JLV, Docket 65
at p. 3 (Magistrate Judge Veronica L. Duffy) (D.S.D. 2010). The rate of $200 per
hour is appropriate and reasonable in the community for attorneys with the level
of legal experience of Mr. Pickar and Ms. Baron-Houy. See also Docket 150 ¶ 3.
Based on the court’s own knowledge of the community, $75 per hour is an
appropriate and reasonable rate for the services of a paralegal.
The court finds the rates sought by Bangs McCullen are reasonable and
appropriate for this civil rights litigation. Blum v. Stenson, 465 U.S. 886, 896
n.11 (1984) (plaintiff “produce[d] satisfactory evidence . . . [ and the attorneys’]
requested rates are in line with those prevailing in the community for similar
services . . . of reasonably comparable skill, experience, and reputation.”).
The “Undesirability” of the Case
From the court’s perspective, the case had a number of “undesirable
factors” from the very beginning. First, Mr. Soltesz engaged in a physical
confrontation with one of his employees. If Mr. Soltesz was the aggressor, a jury
6

may not have been very receptive to his civil rights claims. With video footage
of part of the event, uncertainty existed regarding the jury’s assessment of Mr.
Soltesz’ conduct.
Second, Mr. Soltesz had a history of delayed payments to the Rushmore
Plaza Civic Center under his lease obligation. The manner in which he handled
lease payments created credibility problems with his claims for lost business
income or for interference with business relationships.
Third, Mr. Soltesz was arrested and was convicted in the United States
District Court at Rapid City for a drug offense after he was barred from returning
to the Civic Center.
Fourth, for a number of months Mr. Soltesz was incarcerated out-of-state
to complete the sentence for his drug offense.
Finally, Mr. Soltesz represented the classic example of an individual
battling the establishment. Mr. Soltesz was fortunate to have attorneys who
were willing to navigate these barriers and represent him at trial.
Novelty and Difficulty of the Questions
The legal issues raised by plaintiff’s complaint are unique in that
constitutional claims of unlawful seizure of property and due process violations
arising from a lease are infrequently presented to the courts in this district. Mr.
Soltesz’ claims were aggressively resisted by the defendants, were the subject of a
counterclaim, and required extensive discovery, depositions and pretrial motion
practice. The case took nearly four years to resolve by jury verdict.
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Skill Requisite to Perform the Legal Services Properly
Civil rights litigation is complex. By enacting § 1988, Congress sought to
generate legal fees which would “attract competent counsel” similar to “other
types of equally complex Federal litigation, such as antitrust cases . . . .” Blum,
465 U.S. at 893 (citations omitted).
Defendants object that Bangs McCullen seeks an award for eight attorneys
and four paralegals. (Docket 157 at p. 8). This argument is disingenuous as
the billing statements of Bangs McCullen disclose Mr. Schlauger and Mr. Pickar
initially represented Mr. Soltesz. (Docket 161-1). Mr. Schlauger’s role
diminished significantly when Ms. Baron-Houy became involved as trial counsel
with Mr. Pickar. Id. The other senior partners were involved only during the
course of trial when defendants subpoenaed Mr. Schlauger to appear as a trial
witness. These attorneys assisted with researching and briefing this difficult
issue during the course of trial. Id. at pp. 12-13. Mr. Marshall’s role was
limited exclusively to advancing plaintiff’s motion for partial summary judgment.
Id. at pp. 13-14. Mr. Tronnes was only called upon to assist a senior partner in
researching and drafting the punitive damages brief during the course of trial.
Id. at p. 14.
While four paralegals are included in the Bangs McCullen billing
statement, only one paralegal, Ms. Ronfeldt, was involved in the majority of the
trial work. Id. at pp. 46-51. The other paralegals provided only minimal
support services totalling 1.4 hours. Id. at pp. 51-52.
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Preclusion of Other Employment Due to Acceptance of the Case
The primary trial attorneys of Bangs McCullen who litigated this case
recorded 684.55 hours over the course of nearly four years.4 (Docket 161-1
at p. 51). This time commitment precluded them from participating in other
fee generating legal work.
Reasonable Hours
One of defendants’ objections to the Bangs McCullen’s billing statement is
the use of “block billing.” (Docket 157 at p. 9). “The term ‘block billing’ refers
to the time keeping method by which each lawyer and legal assistant enters the
total daily time spent working on a case, rather than itemizing the time expended
on specific tasks.” Bishop v. Pennington County, CIV. 06-5066-KES, 2009 WL
1364887 at *3 (D.S.D. May 14, 2009) (citing McDannel v. Apfel, 78 F. Supp. 2d
944, 946 n.1 (S.D. Iowa 1999) (quoting Robinson v. City of Edmond, 160 F.3d
1275, 1284 n.9 (10th Cir. 1998)). “[T]he Eighth Circuit has no requirement
against the use of block billing. . . . But the Eighth Circuit has expressed
displeasure with generalized billing that hinders the court’s ability to conduct a
meaningful review of the fee application and has authorized district courts to

4Bangs

McCullen independently “no charged” a total of 54.25 hours for
work performed in the case. (Docket 161-1 at pp. 51-52). “To claim
entitlement to the lodestar, the applicant must submit adequate documentation
of hours and should make a good faith effort to exclude from [their] fee request
hours that are excessive, redundant, or otherwise unnecessary.” Microsoft
Corp. v. Delta Computer Experts, LLC, CIV. 5:08-168-BSM, 2009 WL 348268 at
*1 (E.D. Ark. Feb. 11, 2009). Bangs McCullen performed in this obligation
appropriately.
9

apply a percentage reduction for inadequate documentation.” Id. (internal
citation and quotation marks omitted).
Defendants criticize the law firm for the use of block billing, particularly
because the same law firm was the subject of review in Bishop. (Docket 157 at
p. 10). But as the defendants acknowledge, the court in Bishop found the block
billing “sufficiently specific to communicate what work was done and its
connection to the case.” Bishop, CIV. 06-5066-KES, 2009 WL 1364887 at *4.
In conducting a review of the attorneys’ detailed billing statement, the
court completed a thorough evaluation of the entries and the activities
described. See Docket 161-1. The court is satisfied Bangs McCullen’s billing
statement provides detailed descriptions of the work performed and how the
work related to this case. Defendants’ objection on this basis is overruled.
Defendants object to the Bangs McCullen’s billing statement for time spent
by attorneys reviewing a report and recommendation issued by the magistrate
judge. (Docket 157 at p. 8). The 53-page report recommended denying
plaintiff’s motion for partial summary judgment. (Docket 46 at p. 52).
Defendants also oppose awarding fees for resisting defendants’ motion to compel
and addressing Mr. Soltesz’s state court criminal issues. (Docket 157 at p. 8).
The motion to compel ultimately was granted by the magistrate judge. (Docket
78).
In response to defendants’ argument, Bangs McCullen “no charged” all the
attorneys’ time reviewing the report and recommendation. See Dockets 161 ¶ 3
10

& 161-1 at pp. 10, 21 & 38. Only Attorney Marshall, who was delegated the
responsibility to prepare objections to the report and recommendation,
submitted billable time for his work. See Docket 161-1 at p. 13.
Bangs McCullen adjusted downward its time for responding to the
defendants’ motion to compel. (Docket 160 at pp. 5-6). The court reviewed the
submissions on the motion to compel and concludes that while the arguments of
Bangs McCullen may have been meritorious, but obviously unsuccessful, the
court should not assess those costs against defendants.
Bangs McCullen argues the time spent with Mr. Soltesz addressing state
criminal court issues was ultimately “relevant to this litigation.” (Docket 160 at
p. 6). While the state court assault charge was a material issue during the
pretrial conference, the court finds other time spent beyond the pretrial
conference should not be assessed against the defendants. Conferences with
others on those state court issues were not relevant to the issues at trial.
Based on a generalized argument, defendants assert the court should
reduce Bangs McCullen’s attorneys’ fees request “by no less than 60%.” (Docket
157 at p. 9). “A court may reduce attorney hours, and consequently fees, for
inefficiency or duplication of services in cases where more than one attorney is
used.” Bishop, CIV. 06-5066-KES, 2009 WL 1364887 at *5 (quoting A.J. ex rel.
L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir.1995)). The court is not required to
“reduce attorneys’ fees solely on the basis that multiple attorneys helped to

11

secure a prevailing party’s success.” A.J. by L.B., 56 F.3d at 864 (emphasis in
original).
Defendants’ argument that too many attorneys participated in the
behind-the-scenes work without providing the court with specific references to
the billing statement is without merit. Each day during which there were
multiple entries for more than one attorney, the billing statement clearly
describes the work being performed. This work was not duplicative of the
activities being performed by other attorneys. The court finds allocation of
tasks occurred without any significant overlap or duplication of activities.
Billing entries which reflect conferences with co-counsel or other members
of the firm to analyze trial issues and develop trial strategies are an important
component of complex litigation. Trial counsel “reasonably tapped this wealth
of legal and strategic knowledge.” Planned Parenthood Minnesota, North
Dakota, South Dakota v. Rounds, CIV. 02-4009-KES, 2006 WL 1889163 at *5
(D.S.D. July 7, 2006). “Just because [trial counsels’] time was spent conferring
with co-counsel, this does not make it per se unreasonably expended.” Id.
(referencing Glover v. Johnson, 138 F.3d 229, 254 (6th Cir. 1998) (time spent
conferring on case with co-counsel is recoverable if reasonably expended); see
also King v. Turner, No. CIV 05-388 (JRT/FLN), 2007 WL 1219308 at *2 (D.
Minn. Apr. 24, 2007) (“Plaintiff was successful in [his] claim, and [his] success
likely depends in large part on the consultation and insight from other attorneys
on how to best present this case to the jury.”).
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On November 25, 2014, Paralegal Ronfeldt billed for conducting post-trial
interviews with five jurors. (Docket 161-1 at p. 51). Ms. Baron-Houy is the
only attorney who created an entry for visiting with Ms. Ronfeldt about those
interviews. Id. at p. 43. While this activity may be important to trial attorneys
for future cases, it was not a necessary function associated with this case. The
court will deduct one hour for Ms. Ronfeldt’s time interviewing jurors and .10
hour from Ms. Baron-Houy’s time for conferring with Ms. Ronfeldt about her
findings.
The court will adjust the award of attorneys’ fees to reflect each of its
rulings for each attorney affected.
Mr. Pickar
Prior to January 1, 2013-$175/hr.
Disallowed
11/01/2012
11/17/2012
12/04/2012
12/05/2012
12/24/2012

.80
.25
.40
.15
.25
1.85

Disallowed - -1.85
Approved
61.25 hours

After January 1, 2013-$200/hr.
Disallowed
01/21/2013
03/06/2013
03/26/2013

Requested 63.10 hours

Requested 226.70 hours

.25
.20
.10
.55

Disallowed -0.55
Approved 226.15 hours

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Ms. Baron-Houy
Prior to January 1, 2014-$175/hr.
Disallowed
11/02/2012
11/08/2012
11/17/2012
12/02/2012
01/14/2013

96.35 hours

Disallowed
Approved

-7.17
89.20 hours

Requested

138.00 hours

1.20
1.00
.25
3.20
1.50
7.15

After January 1, 2014-$200/hr.
Disallowed
09/16/2014
11/25/2014

Requested

.35
.10
.45

Disallowed
Approved

-0.45
137.55 hours

Requested

110.10 hours

Ms. Ronfeldt
Disallowed
11/25/2014

1.0

Disallowed
Approved

-1.00
109.10 hours

With these adjustments, the court assesses attorney and paralegal fees as
follows:
Hourly Rate
Mr. Schlauger
Mr. Hurd
Mr. Duffy
Mr. Erlandson
Mr. Pickar
Mr. Pickar
Ms. Baron-Houy
Ms. Baron-Houy
Mr. Marshall
Mr. Tronnes

Hours

$250
$250
$250
$250
$175
$200
$175
$200
$175
$150

108.25
1.30
2.00
2.10
61.25
226.15
89.20
137.55
45.50
2.10
14

Fee
$
$
$
$
$
$
$
$
$
$

27,062.50
325.00
500.00
525.00
10,718.75
45,230.00
15,610.00
27,510.00
7,962.50
315.00

Ms.
Ms.
Ms.
Ms.

Halvorson
Zebill
Leetch
Ronfeldt

$75
$75
$75
$75

0.40
0.60
0.40
109.10

Total Attorney & Paralegal Fees

$
$
$
$

30.00
45.00
30.00
8,182.50

$ 144,046.25

Awards in Similar Cases
The court believes this award of attorneys’ fees is appropriate and in the
range of fees allowed in relationship to the degree of plaintiff’s success and the
compensatory damages awarded. See Cottier v. City of Martin, CIV.
02-5021, 2008 WL 2696917 at *7 (D.S.D. March 25, 2008) (voting rights case,
attorneys’ fees of $549,416 awarded); Jadari v. Shiba Investments, Inc., Civ.
No. 06-5012-RHB, 2008 WL 5100812 (D.S.D. Dec. 3, 2008) amended in part,
Civ. No. 06-5012-RHB, 2009 WL 464438 (D.S.D. Feb. 24, 2009) (settlement of
$235,000 and attorneys’ fees award of $237,407).
SALES TAX
SDCL §§ 10-45-4 and 10-45-4.1 require attorneys to charge sales tax.
Plaintiff requests an award of sales tax on the attorneys’ and paralegals’ fees
recovered. (Docket 160 at p. 14). In Rapid City, South Dakota, the total
sales tax is 6% (4% South Dakota state sales tax and 2% City of Rapid City
municipal sales tax). Sales tax totaling $8,642.78 is assessed against the
defendants.
NON-TAXABLE LITIGATION COSTS AND EXPENSES
Taxable costs under Fed. R. Civ. P. 54 are limited to those costs
enumerated in 28 U.S.C. § 1920. Mr. Soltesz submitted a bill of costs to the

15

Clerk of Court. (Docket 145). The Clerk of Court assessed $1,712.71 of
plaintiff’s costs pursuant to 28 U.S.C. § 1920. (Docket 166).
The court may “assess ‘litigation expenses’ that may not otherwise be
claimed under . . . § 1920 under the rubric [of] attorney fees rather than
costs.” Cottier, CIV 02-5021, 2008 WL 2696917 at *6. “Such expenses
have been described by the Eighth Circuit as ‘out-of-pocket expenses of the
kind normally charged to clients by attorneys.’ ” Id. (quoting Pinkham v.
Camex, Inc., 84 F.3d 292, 294-95 (8th Cir. 1996) (long distance, fax,
messenger and express mail charges were reasonable out-of-pocket expenses
of kind normally charged to clients by attorneys, and thus should have been
included as part of reasonable attorney fee award to prevailing party in
copyright case).
The court finds most of the expenses sought by plaintiff are
reimbursable. Those include the following: $1,099.15 for deposition
transcripts; $153.27 printing costs; and $428.60 copy costs. Compare
Dockets 145 & 166.
Congress has not authorized recovery of expert witness fees as part of
an attorney fee award except to enforce 42 U.S.C. §§ 1981 or 1981a. There is
no recovery allowance for expert witnesses in an action under § 1983 for
vindication of constitutional rights. Jenkins by Jenkins v. State of Missouri,
158 F.3d 980, 983 (8th Cir. 1998). Plaintiff recognizes this limitation and
seeks only $40 per day for the attendance of his expert witness for two days of
trial. (Docket 160 at p. 13). These witness fees were not assessed by the

16

Clerk under § 1920. (Docket 166). The court awards $80 for the expert’s
attendance at trial.
The court finds plaintiff is entitled to the assessment of $1,761.02 as
additional litigation expenses.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion (Docket 148) is granted in part and
denied in part.
IT IS FURTHER ORDERED that defendants’ objections (Docket 157) are
sustained in part and overruled in part consistent with this order.
IT IS FURTHER ORDERED that defendants shall pay plaintiff
$144,046.25 in attorneys’ and paralegal fees, sales tax of $8,642.78 and
litigation expenses of $1,761.02, for a total of $154,450.05.
A second amended judgment will be entered.
Dated September 8, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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