American Academy of Implant Dentistry et al v. Parker et al

Filing 109

ORDER GRANTING IN PART AND DENYING IN PART 93 Motion for Attorney Fees. Signed by Judge Sam Sparks. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

'

IV

.J

I

\:
AMERICAN ACADEMY OF IMPLANT
DENTISTRY, et al.,
Plaintiffs,

CAUSE NO.:
AU-14-CA-00191-SS

-vs-

GLENN PARKER, Executive Director of
the Texas State Board of Dental Examiners,
etal.,

Defendants.

[111110 a

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Plaintiffs' Motion for Attorney's Fees [#93], Defendants' Response [#95] in

opposition, Intervenor Defendant Texas Society of Oral and Maxillofacial Surgeon (TSOMS)'s
Response [#94] in

opposition,1

and Plaintiffs' Reply [#98] in support, Plaintiffs' Supplemental

Fee Submission [#108], and Defendants' Supplemental Submission [#107]. Having reviewed the

documents, the governing law, the arguments of counsel, and the file as a whole, the Court now

enters the following opinion and orders.

Background
On March 5, 2014, Plaintiffs filed suit against Defendants challenging Texas
Administrative Code

§

108.54, which prohibits a licensed dentist from advertising as a

"specialist" in any area of dentistry not recognized as a "specialty" by the American Dental

Association. Plaintiffs alleged

§

108.54 infringed upon their First Amendment right to engage in

In subsequent filings, Plaintiffs have rescinded their fee request with respect to hours attributable to
TSOMS, thereby mooting TSOMS's objections. See Pis.' Suppi. Submission [#108] at 3.
1

1

/

truthful, non-misleading commercial speech as well as their Fourteenth Amendment due process
and equal protection rights. In its January 21, 2016 order, the Court granted summary judgment
in favor of Plaintiffs on the First Amendment claim granted summary judgment in favor of

Defendants on Plaintiffs' Fourteenth Amendment claims. Order of January 21, 2016 [#7 5] at 25.
The Fifth Circuit subsequently affirmed on appeal, holding

§

108.54 unconstitutional as applied

to Plaintiffs. Fifth Cir. J. [#85] at 16-17.

Plaintiffs move for attorney's fees pursuant to 42 U.S.C.

§

1988(b). Mot. Att'y Fees

[#93]. While Defendants do not contest Plaintiffs' right to a fee award, they argue the Court

should reduce the amount of fees claimed by Plaintiffs. Resp. Mot. Att'y Fees [#94]. Plaintiffs'

motion for attorney's fees initially requested a total fee award of $733,335. Mot. Att'y
Fees [#93] at 5. The Court subsequently held a hearing regarding attorney's fees on October 26,
2017, and in November 2017, both parties submitted revised fee proposals to Court. Pls.' Suppi.

Submission [#108]; Defs.' Suppl. Submission [#107]. Plaintiffs now claim attorney's fees of
$311,950 and nontaxable expenses of $2,701.95, as well as taxable expenses of $5,130. Pls.'
Suppl. Submission [#108] at 3-4; Bill of Costs [#106]. In turn, Defendants suggest the Court

award Plaintiffs reasonable attorney's fees of $212,170. Defs.' Suppl. Submission [#107] at

1.

Plaintiffs' pending motion for attorney's fees is now ripe for review.

Analysis
I.

Legal Standards
A.

Motion for Attorney's Fees-42 U.S.C. § 1988

Under 42 U.S.C.
§

§

1988, a "prevailing party" in an action brought under 42 U.S.C.

1983 may be awarded reasonable attorney's fees. 42 U.S.C. § 1988; see also Univ. Amusement

Co., Inc.

v.

Vance, 587 F.2d 159, 172 (5th Cir. 1978) (noting court has discretion to award fees

2

under

§

1988). To qualify as a prevailing party, the plaintiff must demonstrate (1) the plaintiff

achieved judicially-sanctioned relief; (2) the relief materially alters the legal relationship

between the parties; and (3) the relief modifies the defendant's behavior in a way that directly
benefits the plaintiff at the time the relief is entered. Petteway
Cir. 2013).

To "prevail" under

§

judgment on every claim. Jenevein
B.

v.

Henry, 738 F.3d 132, 137 (5th

1988, the party seeking fees need not procure a favorable
v.

Willing, 605 F.3d 268, 270 (5th Cir. 2010).

Calculation of Attorney's Fees

The Fifth Circuit uses a two-step process to calculate attorney's fees. Heidtman

of El Paso,

171 F.3d 1038, 1043 (5th Cir. 1999). First, a court

v.

Cnly.

calculates a "lodestar" figure "by

multiplying the number of hours reasonably expended by an appropriate hourly rate in the
community" for "similar services by lawyers of reasonably comparable skill, experience and
reputation." Id.; Blum

v.

Stenson, 465 U.S. 886, 895-96 n.h

(1984). In so doing, the court

considers whether the attorneys demonstrated proper billing judgment by "writing off

unproductive, excessive, or redundant hours." Walker

v.

US. Dep 't of Hous. & Urban Dev.,

99 F.3d 761, 769 (5th Cir. 1996). The plaintiff has the burden

of showing the reasonableness of

the hours billed and proving the exercise of billing judgment. Id. at 770.

After calculating the lodestar, the court may increase or decrease it based on the

following factors: (1) the time and labor required by the litigation; (2) the novelty and difficulty

of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of
other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount

involved and results obtained; (9) the experience, reputation, and ability of the attorney; (10) the
undesirability of the case; (11) the nature and length of the professional relationship with the

3

client; and (12) the award in similar cases. Heidtman, 171 F.3d at 1043 n.5 (citing Johnson

v.

Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)).
Where a prevailing party was only partially successful, the court must consider two
further issues: first, the relationship between the claims on which the plaintiff succeeded and
those on which he did not, and second, whether the plaintiff achieved a level of success that

makes the hours expended a satisfactory basis for a fee award. Hensley
424, 434 (1983); see also Romaguera

v.

v.

Eckerhart, 461 U.S.

Gegenheimer, 162 F.3d 893, 896 (5th Cir. 1998),

clarified on denial of reh 'g, 169 F.2d 223 (5th Cir. 1999). Specifically, in a suit where the
plaintiff presents "distinctly different claims for relief that are based on different facts and legal
theories[,j

.

.

.

work on an unsuccessful claim cannot be deemed to have been expended in

pursuit of the ultimate result achieved"; thus, no fee award for that work is permitted. Hensley,
461 U.S. at 434-3 5 (internal quotes omitted). In contrast, where the suit "involve[dJ a common

core of facts" or was "based on related legal theories," the court "should focus on the

significance of the overall relief obtained by the plaintiff in relation to the hours reasonably

expended on the litigation." Id. at 435.

II.

Application
Plaintiffs' motion for attorney's fees initially requested a total fee award of $733,335.

Mot. Att'y Fees [#93] at 5. In their response, Defendants objected to (1) the hourly rate

requested; (2) the vagueness of billing entries and/or blockbilling; (3) the rate charged for travel
time; (4) excessive hours; (5) overstaffing; (6) hours billed for clerical work, public relations
efforts, and pro hac vice admissions; (7) fees related to intervention; and (8) fees for activities

unrelated to Plaintiffs' success in the litigation. Resp. Mot. Att'y Fees [#95] at 3-16. Defendants

4

also argued Plaintiffs' award should be reduced in light of the results obtained and fee awards in

similar cases. Id. at 16-20.

Following the hearing before this Court, both parties submitted supplemental letters to
the Court revising their fee award estimates. Pls.' Suppl. Submission [#108]; Defs.' Suppi.
Submission [#107]. While Plaintiffs have not changed their requested hourly rates, they have
eliminated all hours claimed for travel and all hours attributable solely to Intervenor Defendant
TSOMS, thus disposing of Defendants' third and seventh objections, respectively. Additionally,

Plaintiffs have substantially trimmed their fee requests in response to Defendants' objections
regarding vague billing entries, expenditure of excessive hours, overstaffing, and clerical work.
Plaintiffs now suggest a fee award of $311,950, while Defendants suggest a fee award of
$212,170. Pis.' Suppl. Submission [#108] at 3-4; Defs.' Suppl. Submission [#107] at

1.

The Court's assessment of what might constitute a reasonable fee award will proceed by:
(1) determining a reasonable hourly rate for time expended; (2) reconciling the disparities

between the parties' hours estimates; and (3) addressing Defendants' argument Plaintiffs' award
should be reduced because Plaintiffs did not succeed on all of their asserted claims.
A.

Reasonable Hourly Rate

In their most recent submission to the Court, Defendants have attenuated their objections
to Plaintiffs' proposed hourly rates.

See

Defs.' Suppi. Submission [#197] at 2 n.2. Specifically,

Defendants suggest applying a blended hourly

rate2

of the $350 per hour. Id. The Court declines

to apply a blended hourly rate because Plaintiffs have submitted sufficient records to enable the

Court to determine the number of hours attributable to each attorney.

2

See

Pls.'

Suppl.

Defendants calculated this blended hourly rate by averaging the rates requested by attorneys Hicks,
Recker, and Newkirk. Defs.' Suppi. Submission [#107] at 2 n.2. The Court observes in passing this is not a weighted
average and thus obscures the fact the vast majority of hours were expended by the two attorneys with the highest
hourly rates.

Submission [#108] at 4. The Court therefore looks to the hourly rates proposed by Plaintiffs to

determine if the rates are reasonable. Plaintiffs propose an hourly rate of $400 for Renea Hicks,
$375 for Frank Recker, and $275 for Todd Newkirk. Id. at 2.
In the Western District of Texas, judges frequently look to the State Bar of Texas Hourly

Rate Report (Rate

Report)3

the relevant legal market.

in order to establish a reference point for reasonable hourly rates in

See, e.g., Swiney

v.

Texas,

No. SA-06CA-0941 FB NN, 2008 WL

2713756, at *5 (W.D. Tex. July 3, 2008). The Rate Report details hourly rates by practice area
and location. The Rate Report is not dispositive, however, and the Court notes the Rate Report's

observations are often based off of less-than-robust self-reporting by the State's lawyers. For
example, of the 11,781 active members of the Texas State Bar residing in the Austin-Round

Rock Metropolitan Statistical

Area,4

only 150 lawyers with 21 or more years of experience

reported their hourly rate. Rate Report at 12. With these considerations in mind, the Court now
turns to evaluating the rates suggested for work by Plaintiffs' attorneys.

Plaintiffs' suggested hourly rate for the work of Renea Hicks is reasonable. Mr. Hicks has
over 25 years of legal experience, and the 2015 reported median hourly rate in the Austin-Round
Rock MSA for lawyers with 21 or more years of experience ranges from $306 to $350. Rate
Report at 12; Mot. Att'y Fees [#93-2] Ex.

1

at 2. However, this is a median rate, and, as noted

above, there is good reason to avoid treating the Rate Report as a binding recommendation.

Given Mr. Hicks' substantial experience in constitutional law and appellate practice and the
State Bar of Texas Department of Research and Analysis, 2015 Hourly Fact Sheet (2015) [hereinafter,
Rate
Report],
https://www.texasbar.coAM/Template.cfm?SectionDemographicand_Economic_Trends&
Template=/CMlContentDisplay.cfm&ContentlD=341 82.
"

For the purpose of determining applicable hourly rates, the relevant legal market is generally the
community where the district court sits. McClain v. Lujkin Indus., Inc., 649 F.3d 374, 381-83 (5th Cir. 2011).
Attorneys with 21 to 25 years of experience reported a median hourly rate of $350, while attorneys with
over 25 years of experience reported a median hourly rate of $306. Id. Plaintiffs point out that in many instances it
makes little sense to award attorneys a lower hourly rate on the basis of their greater breadth of experience.

quality of his representation at trial, the Court finds a rate of $400 per hour is appropriate. See

Chacon

v.

City ofAustin, No.

A-12CA-226SS, 2015 WL 4138361, at

*6 (W.D. Tex. July 8,

2015) (taking into account relevance and extent of attorneys experience in determining

reasonable hourly rate)]; see also Shipes

v.

Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993)

(same).

Plaintiffs' suggested hourly rate of $375 for the work of Frank Recker is also reasonable.
Mr. Recker has over 25 years of legal experience. Mot. Att'y Fees [#93-2] Exhibit 2 at 1. As

noted by Plaintiffs, Mr. Reeker's background and experience are uniquely valuable in the instant

caseMr. Reeker is both a

dentist and a lawyer and focuses his practice on matters concerning

the dental profession. Id. at 1-2. In light of these considerations, an upward departure of $25 per

hour above the $350 per hour rate implied by the Rate Report is both reasonable and justified.
Finally, Plaintiffs' suggested hourly rate for the work of Todd Newkirk is also
reasonable. Mr. Newkirk has 11 to 15 years of legal experience and has previously worked as an

Assistant Attorney General in Ohio. Reply Mot. Att'y Fees [#98] at 4 n.5. According to the Rate
Report, the median rate for lawyers with 11 to 15 years of experience is $300. Rate Report at 12.

Plaintiffs have requested $25 per hour less than this amount, Pis.' Suppi. Submission [#108] at 2,
and the Court finds Plaintiffs' suggested hourly rate of $275 for Mr. Newkirk is reasonable.
B.

Reasonable Number of Hours

In their supplemental submissions to the Court, both parties estimate what might

constitute a reasonable number of hours to have expended on this litigation. For ease of
reference, the Court has charted the parties' respective hours estimates below:

7

Plaintiffs' Hours Est.

Defendants Hours Est.

Complaint

50.0

40.0

Written Discovery

106.9

100.0

Depositions

295.7

132.2

Motions

220.8

219.06

Appellate Work

124.6

115.0

Administrative

23.4

N/A

Post-Remand Work

18.2

N/A

Total

825.2

606.2

Rulemaking

Pis.' Suppi. Submission [#108] at 3-4; Defs.' Suppi. Submission [#107] at

1.

As seen above, the

parties' estimates differ by ten hours or less with respect to hours attributed to work on the
complaint, written discovery, motions, and appellate work. Keeping in mind "[t]he essential goal
in shifting fees (to either party) is to achieve rough justice, not to achieve auditing perfection,"

Fox v. Vice, 563 U.S. 826, 838 (2011), the Court proceeds to address the parties' suggestions as
to what might constitute a reasonable number of hours expended upon this litigation.
1.

Complaint, Written Discovery, Motions, and Appellate Work

The Court finds Plaintiffs' claimed hours for work on the complaint, written discovery,

motions, and appellate work to be reasonable. In doing so, the Court notes Plaintiffs have

substantially reduced their claimed hours subsequent to the hearing before this Court and in
response to Defendants objections regarding vague billing entries, block billing, clerical work.

This calculation includes hours attributed by Defendant to the June 17, 2014 hearing on Defendants'
motion for judgment on the pleadings. See Defendant's Suppi. Submission [#107] at 1.
8

Compare Mot. Att'y Fees [#93] at 5 (claiming $733,335 in attorney's fees), with Pis.' Suppl.
Submission [#108] at 3-4 (reducing claim of attorney's fees to $311,950). The Court also notes

Plaintiffs' and Defendants' estimates of what constitutes a reasonable amount of work for these
tasks have converged substantially. For example, with respect to the hours claimed for written
discovery, the parties' estimates diverge by just three percent, while with respect to expenditure

of time on motions, the parties' estimates diverge by less than one percent. The Court therefore
allows 50 hours for work on the complaint, 106.9 hours for written discovery, 220.8 hours for
motions, and 124.6 hours for appellate work. Applying the reasonable hourly rates determined
above, the Court awards $87,720 for 8.6 hours of work by Mr. Hicks, $77,663 for 32.1 hours of

work by Mr. Recker, and $20,872 for 9.3 hours of work by Mr. Newkirk, for a total of $186,255
for these tasks.
2.

Depositions

The greatest disparity in the parties' hours estimates is with respect to depositions.

Plaintiffs' claimed hours for time spent preparing and conducting depositions is more than twice
the estimate put forward by Defendants. In part, this may be because both Mr. Hicks and Mr.
Recker appear to have billed for time spent attending depositions. This Court does not allow

recovery for time spent in the role of a passive observer at depositions. See Chacon, 2015 WL
4138361, at *4 (citing Flowers

v.

Wiley, 675 F.2d 704, 705 (5th Cir. 1982)). The Court therefore

rejects 26 of Mr. Recker's claimed hours on the grounds Plaintiffs cannot recover fees for time
Mr. Recker spent as a passive observer. After subtracting this amount, Plaintiffs' remaining

estimated hours consist of 26 hours spent attending depositions and 243 hours spent preparing
for those depositions. However, as Plaintiffs correctly note, the legal posture of this case
indicated from the outset that this matter would likely be decided on summary judgment,

rendering the testimony elicited at these depositions particularly important. In this context, the
Court reduces the hours claimed for time spent preparing for depositions by one third, to 162
hours. In aggregate, the Court finds 188 hours were reasonably spent preparing for and attending

depositions and, accordingly, awards $14,660 for 36.65 hours of work by Mr. Hicks, $47,135 for
125.69 hours of work by Mr. Recker, and $5,049 for 18.36 hours of work by Mr. Newkirk,7 for a

sum of $66,844.
3.

Administrative Rulemaking

The parties also dispute whether Plaintiffs may be awarded fees for hours incurred with

respect to an administrative rulemaking process before the State Dental Board which occurred
during the pendency of this litigation. Defendants have suggested this work should be disallowed
because it is unrelated to the litigation. Resp. Mot. Att'y Fees [#95] at 16. While administrative

work unrelated to the litigation itself is not recoverable under

§

1988, administrative work is not

per se unrelated to litigation as a general matter, and fees may sometimes be recovered for
administrative work directly related to the litigation at issue. See NC. Dep 't
St. Cmty.

Council, 479 U.S. 6, 15 (1980); see also Stormans, Inc.

v.

of Transp.

v.

Crest

Selecky, 906 F. Supp. 2d

1093, 1101 (W.D. Wash. 2012) (allowing recovery for work expended with respect to

administrative process, where parties had stipulated to a stay in the litigation pending outcome of
the rulemaking). Here, Defendants have not explained why the administrative work should be

considered unrelated to the litigation, and the Court finds the hours expended by Plaintiffs'
counsel were reasonable because the ongoing rulemaking had the potential to moot the ongoing
litigation. The Court therefore awards $4,400 for 11.0 hours of work by Mr. Hicks and $4,650

for 12.4 hours of work by Mr. Recker, for a total of $9,050.
The Court calculated these amounts by applying the one-third reduction pro rata to the hours claimed by
each attorney. The Court accomplished this by multiplying each of the attorney's claimed hours for depositions by
0.67.

10

4.

Post-Remand Fees

In their supplemental submission to the Court, Plaintiffs appear to ask for post-remand
fees for the first time. Plaintiffs' counsel do not appear to have submitted timesheets or

declarations for post-remand work but aver they have exercised their billing judgment to reduce
this number by at least 60 percent. See Pls.' Suppi. Submission [#108] at 4. Given the lack of
documentation, the Court finds Plaintiffs have not met their burden of establishing entitlement to
an award for this work. See Petteway

v.

Henry, 738 F.3d 132, 137 (5th Cir. 2013). The Court

therefore declines to award attorney's fees for post-remand work.
5.

Costs

Plaintiffs have requested reimbursement for $2,701 in nontaxable expenses. This amount
represents Mr. Recker's travel costs for a Chicago deposition and Mr. Hicks's cost of travel to
oral argument before the Fifth Circuit in New Orleans as well as cost of travel to a deposition

related to TSOMS. Plaintiffs have already eliminated hours solely attributable to TSOMS as a
party, see Pis.' Suppl. Submission [#108] at 3, and the Court similarly subtracts the travel

expense attributable to the TSOMS deposition. Plaintiffs may recover the remaining $2,485.12 in

nontaxable expenses.
Plaintiffs have also submitted a bill of costs requesting the Clerk tax $5,130 as costs. Bill

of Costs [#106]. Defendants have not filed objections to the bill of costs, and it appears to the
Court the costs requested are reasonable. Accordingly the Court approves Plaintiffs' request for
$5,130 in taxable costs.
C.

Results Obtained

In awarding attorney's fees, the Court must consider "whether plaintiff failed on

alternative claims and whether the award is excessive in light of the plaintiff's overall level of

11

success."

See Romaguera,

162 F.3d at 896 ("When the plaintiff raises several claims and those

claims involve a common core of facts or related legal theories, the district court

.

.

.

should

focus on the significance of the overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation." (internal quotation marks and citation omitted)). Here,
Plaintiffs relied on a common core of facts to put forward several related constitutional bases for

the invalidation of § 108.54. In the end, only one such basis was needed in order to secure the
sought-after injunction prohibiting Defendants from enforcing Texas Administrative Code
§

108.54 against Plaintiffs. The Court finds the hours expended by Plaintiffs were reasonable in

relation to Plaintiffs' overall level of success because Plaintiffs obtained substantially all of the

relief sought in the litigation. Accordingly, the Court shall not adjust attorney's fees downward
based on the results obtained.

Conclusion
Pursuant to 42 U.S.C.

§

1988, the Court awards Plaintiffs a total of $269,764.12,

consisting of $186,255 for reasonable hours expended on the complaint, written discovery,

motions, and appellate work, $66,844 for reasonable hours expended on depositions, $9,050 for
reasonable hours expended on administrative work, $2,485.12 in nontaxable expenses, and
$5,130 in costs.

Accordingly,
IT IS ORDERED that Plaintiffs' Motion for Attorney's Fees and Nontaxable
Expenses [#93] is GRANTED iN PART and DENIED IN PART as described in this
opinion; and
IT IS FURTHER ORDERED the Court APPROVES Plaintiffs' Bill of Costs
[#1061.

12

SIGNED this the /1 day of January 2018.

SA'''

SENIOR UNITED STATES DISTRICT JUDGE

13