Felders et al v. Bairett

Filing 437

MEMORANDUM DECISION AND ORDER re: ATTORNEYS FEES AND COSTS-granting 361 Motion for Attorney Fees; taking under advisement/referred to Clerk for resolution 361 Motion ; granting 413 Motion for Attorney Fees; Motions terminated : 361 Plaintiff's MOTION for Attorney Fees and Memorandum in Support Plaintiff's MOTION Enhanced Fees and Costs and Memorandum in Support filed by Sherida Felders, Delarryon Hansend, Elijah Madyun, 413 Plaint iff's MOTION for Attorney Fees and Memorandum in Support of Additional Fees filed by Sherida Felders, Delarryon Hansend, Elijah Madyun. Plaintiffs are awarded $397,462.50 as attorney fees. Plaintiffs are awarded $34,133 for expenses incurred by paralegals and clerks. Plaintiffs Motion to award costs 361 and Bill of Costs 359 are referred to the Clerk for resolution. See Order for additional details. Signed by Judge Clark Waddoups on 1/25/17. (jmr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

SHERIDA FELDERS, et al.,

MEMORANDUM DECISION
AND ORDER re ATTORNEYS
FEES AND COSTS

Plaintiffs,
vs.

Case No. 2:08-cv-993 CW
BRIAN BAIRETT, et al.,
Judge Clark Waddoups
Defendants.

INTRODUCTION
This matter is before the court on Plaintiffs’ Motion for Attorney Fees (Dkt. Nos. 361
and 413). The court has carefully reviewed the motions and supporting evidence, the opposition
memoranda and evidence, and considered the oral argument of counsel and supplemental
filings. The court previously ruled that the Plaintiffs are the prevailing parties with respect to
Defendant Bairett, but not with respect to Defendant Malcom, and rejected Defendant Bairett’s
Motion to Strike the Motion for Attorney Fees on the basis of an alleged Offer of Judgment.
(Dkt. No. 403).
In a federal civil rights action, “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). Section 1988
provides for attorney fees to be awarded to the prevailing plaintiffs in an action brought under
42 U.S.C. §1983. The purpose of the statute is to encourage competent counsel to pursue civil
rights cases to vindicate the rights of parties whose constitutional rights have been violated, but
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who would otherwise likely lack the financial means to protect those rights and seek an
appropriate remedy for the violation. See City of Riverside v. Rivera, 477 U.S. 561, 574–75
(1986). In considering a request for such an award, the court must determine what is a
reasonable fee generally by beginning with a “lodestar” figure based on multiplying the hours
counsel reasonably spent on the litigation times a reasonable hourly rate. Jane L. v. Baangerter,
61 F.3d 1505, 1509 (10th Cir. 1995). Both of these factors are to be judged by the complexity
of the issues raised and the experience of counsel involved. See Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). The request for attorney fees must be supported by detail specifying the dates,
tasks accomplished, and the time spent on the various tasks. Jane L., 61 F.3d at 1510. The same
support is required for fees and costs claimed for secretarial and paralegal assistance. Missouri
v. Jenkins by Agyei, 491 U.S. 274, 285 (1989).
Once the court determines the lodestar amount, the court may in its discretion adjust the
fee to be awarded by taking into account the result achieved, the complexity of the litigation,
the time required to bring the litigation to conclusion and other factors such as unnecessary
duplication of effort, delay, and the importance of the rights being protected. Hensley, 461 U.S.
at 434–36. In this case, Defendant Bairett does not contest that attorney fees may be awarded in
a civil rights case, but does object to the amount of fees being requested, arguing that they are
excessive and unreasonable under the facts of this case. 1
The Lodestar Amount
In this case Plaintiffs’ counsel incurred a total of 1,431 hours in attorney time from the
commencement of the case through September 28, 2016. At the hourly rates in effect at the

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Defendant Bairett’s objections that the Plaintiffs were not prevailing parties and their request for those fees
should be denied and reduced because Bairett made an Offer of Judgment have been previously rejected by the
court. (Dkt. No. 403).

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time the services were provided, the amount of attorney fees was $480,570 before any
reduction or adjustments. (Dkt. No. 435, Schedule 1). The fee amount is supported by detailed
billing records and sworn statements (declarations or affidavits) from the counsel providing the
service. (Dkt. Nos. 361, 435). Plaintiffs further request that the lodestar amount of $480,570 be
enhanced by $22,577 to a total, prior to adjustment, of $503,147 to account for the increase in
billing rates by Plaintiffs’ attorneys from the time the services were provided to the time the
fees are now being requested. (Dkt. No. 435, Schedules 1 and 2).
Defendant Bairett’s Objections and the Court’s Adjustment to the Fees
The amount of itemized lodestar fees included time spent in pursuing claims against
both Defendants Bairett and Malcom. As noted, the court found that Plaintiffs were not the
prevailing parties against Defendant Malcom and denied any request for attorney fees against
him. Defendant Bairett submitted an opposition to the request for attorney fees, including a
detailed and careful analysis in a spreadsheet format classifying fees for attorney time as (1)
reasonable, (2) not compensable because they apply only to Defendant Malcom, (3) not
compensable because they were incurred for public relations or unrelated and unsuccessful
claims, and (4) not compensable because they are not adequately supported in the billing
records (“block billing”). Based on this analysis, Defendant Bairett argues that the allowable
attorney fees should not exceed $131,372.50. (Dkt. No. 406 and attached exhibits). Defendant
Bairett objects to the amount of attorney fees requested principally on grounds that (1) the
lodestar amount includes fees that were unnecessarily incurred, (2) fees incurred in pursuing
claims against Defendant Malcom should be excluded, (3) fees related to public relations
should not be allowed, and (4) the fees allowed should be reduced to reflect the result and
failure of Plaintiffs to accept offers to settle the case.
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The court heard argument on Plaintiffs’ motion for attorney fees and Defendant
Bairett’s objections and at the conclusion of the hearing requested counsel to provide additional
information, including additional detail on the time spent pursuing claims against Defendant
Malcom. (Dkt. No. 434). In response, Plaintiff provided an additional Affidavit of Robert B.
Sykes Regarding Allocation of Attorney Time to Malcom. (Dkt. No. 435). In that Affidavit,
Mr. Sykes responded to the following issues and requests raised by the court during the oral
argument:
a. Divide out and show from all the submissions time essentially dedicated to
motions for summary judgment regarding Malcom, as opposed to the other Defendant,
Bairett.
b. Divide out and show time relating to defending the Malcom appeal to the
Tenth Circuit.
c. Provide the court some kind of a spreadsheet whereby the court would move
time around if it wished to do so, since the court informed counsel that no time would
be awarded for matters directly relating to prosecuting the case against Malcom.
However, the court also noted that this does not require counsel to split out time for
general case and trial preparation. Only the time exclusively and directly dedicated to
proving or defending the case against Malcom was to be separated out.
d. Provide further explanation for the 3% deduction that counsel deducted for
duplications.
Id. (emphases omitted).
Mr. Sykes testified that in response to these requests, he and his staff most familiar with
work done to prosecute the case identified the time spent responding to motions for summary
judgment directed solely at Defendant Malcom and responding to his appeal to the Tenth
Circuit, time spent exclusively for the case against Defendant Bairett, and time spent directed at
issues argued by Defendant Bairett as not necessary to pursue the claims. In addition, Mr.
Sykes testified that they carefully reviewed all of the time to determine if the requested fees
were correct and to eliminate duplication. Mr. Sykes further testified that upon review of the
time Defendant Bairett claimed should be disallowed, because it was devoted to pursuing the
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claim against Defendant Malcom, he deducted those amounts and added significant additional
time to the reduction. Finally, Mr. Sykes reduced the time claimed by an additional three
percent and explained this was to address duplication and inefficiencies that are unavoidable in
such a representation, such as discussing the case in firm meetings. Defendant Bairett has not
filed an objection or further response to the Affidavit Mr. Sykes submitted.
Upon review of the supporting information and arguments of counsel, the court makes
the following findings:
1.

The request for attorney fess is properly supported by detailed billing records

and supporting affidavits and declarations. The hourly rates claimed are consistent with fees
charged by attorneys with similar skill, education, and experience. The billing rates claimed are
supported by the affidavits and declarations of other attorneys who are experienced and
practice in this area of law. (Declaration of Kathryn Collard, Dkt. No. 371; Affidavit of Ross C.
Anderson, Dkt. No. 372; Declaration of James W. McConkie II, Dkt. No. 378; Declaration of
Karra J. Porter, Dkt. No. 379).
2.

Plaintiff should recover enhanced fees to account for the length of time required

to bring the ligation to a resolution. The complaint in this case was filed December 29, 2008,
more than eight years prior to the award of attorney fees. Prior to the case being brought to
trial, defendants filed numerous motions that required significant briefing and argument. These
motions included a motion to dismiss (Dkt. No. 6), a motion to extend time to complete
discovery (Dkt. No. 47), a motion for summary judgment Defendant Bairett (Dkt. No. 79), a
motion for summary judgment filed by Defendant Malcom (Dkt. No. 113), an interlocutory
appeal filed by Defendant Malcom resulting in a stay of the case pending resolution of the
appeal (Dkt. Nos. 166 and 174), and numerous other motions related to discovery and
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corresponding issues. Because of the appeal, the case was stayed for almost seventeen months
from March 29, 2013 until August 20, 2014. Plaintiffs prevailed on the appeal, and the case
was remanded for trial. Following the appeal, additional discovery and pretrial issues were
required to prepare for trial, which proceeded on March 24, 2015 through March 27, 2015.
Additional motions were filed post-trial. The court makes no finding that any of the motions
were pursued by Defendants or Plaintiffs for purposes of delay or otherwise not brought in
good faith, only that delay was incurred to address and bring to resolution the Plaintiffs’ claims
and defenses asserted. The court finds that because Plaintiffs’ counsel incurred substantial time
during the period of delay that could have been spent pursuing other matters and the hourly rate
normally charged by Plaintiffs’ counsel has increased, an enhanced fee is appropriate and the
amount of $22,577 is reasonable to reflect what the hourly rate would be if the time were billed
at current rates. This approach, as argued by Plaintiffs, avoids the need for a present value
calculation to adjust for the delay in collecting for time spent over the eight year period. The
court also finds that the enhancement is reasonable to provide an incentive for counsel to accept
cases of constitutional and social importance that may result in protracted and heavily litigated
proceedings. Absent the willingness of counsel to accept the risk of undertaking such litigation,
Plaintiffs would not have been able to pursue claims to protect their constitutional rights and
abuses of their constitutional rights would likely have gone unchecked. City of Riverside v.
Rivera, 477 U.S. 561, 574 (1986). See Declaration of Kathryn Collard, Dkt. No. 371; Affidavit
of Ross C. Anderson, Dkt. No. 372; Declaration of James W. McConkie II, Dkt.No. 378;
Declaration of Karra J. Porter, Dkt. No. 379. The Tenth Circuit recognized the importance of
this social good in Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998):
It goes without saying that if a court’s compensation is not adequate to match what
the market will bear for a lawyer's services, then competent lawyers will go
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elsewhere to offer their services. Such a result would do irreparable damage to our
system of private enforcement of federal civil rights.

The requested enhancement in this case serves that purpose. Absent the willingness of
Plaintiffs’ lawyers to undertake the representation, the constitutional rights the jury found were
violated by Defendant Bairett would have not been addressed.
3.

The court finds that the enhanced lodestar total of $503,147 should be reduced

by the following amounts to reflect fees properly incurred as reasonable and necessary:
a.

$60,292.50 for time spent making or responding to motions for summary

judgment and other motions directed solely at Defendant Malcom or responding to Malcom’s
appeal to the Tenth Circuit. This amount is supported by Plaintiffs’ exclusion of time spent
solely on Malcom matters as identified by Defendant Bairett and accepted by Plaintiffs as a
reasonable adjustment. (Dkt. No. 435 ¶ 8.a.). Although there is a logical argument that the
claims against Defendant Malcom were necessary to prevail on the claims against Defendant
Bairett, the jury rejected those claims. As discussed below, the court has allowed a portion of
fees for time spent pursuing the claims against both defendants as reasonable and necessary.
The court rejects, however, the argument that time spent pursuing motions and appeals directed
solely at Defendant Malcom would have been incurred absent his being joined as a defendant.
b.

$6,033 representing 50% of the time spent pursuing issues that applied equally

to both defendants. This amount is supported by an estimate dividing time entries between
Defendants Bairett and Malcom. (Dkt. No. 435 ¶ 8.d.). The court finds this is a reasonable
allocation of the time spent and recognizes that the facts and legal issues involving the actions
of Defendant Malcom would have needed to be explored even if he were not named as a
defendant. The estimate of a 50% reduction is a reasonable reduction to address the additional
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work required because both defendants were named.
c.

$4,000 for time spent addressing a claim of racial profiling, which Plaintiffs

acknowledge may be properly excluded from an award of attorney fees. This amount is
supported by the estimate Plaintiffs’ counsel provided. (Dkt. No. 435, Schedule 2).
d.

$1,500 for time spent that Plaintiffs concede was directed toward public

relations and properly excludable. This amount is supported by the estimate Plaintiffs’ counsel
provided. (Dkt. No. 435, Schedule 2).
e.

$12,940 ($431,321.50 X 3%) to address necessary duplication and inefficiencies

inherent in a case of this complexity and involving several attorneys who must coordinate time
and efforts. Plaintiffs’ counsel acknowledge that it is their practice to allow clients such a
reduction as a matter of discretion to account for such inefficiencies. This amount is supported
by the estimate Plaintiffs’ counsel provided. (Dkt. No. 435, ¶ 13). The court finds that it is
reasonable to reduce the lodestar amount by three percent to address duplication and reflect
counsel’s customary billing practices.
f.

$20,919 ($418,381 X 5%) to address the result achieved, a $15,000 damage

award, and the fact that Defendant Bairett presented settlement offers under which the case
may have been resolved for an amount greater than the amount the jury awarded. The court
also recognizes that Plaintiffs made several settlement offers in various amounts that were not
favorably considered by Defendant Bairett. The court limits the reduction to five percent in
recognition that although the dollar amount of the damage award was significantly less than the
amount Plaintiffs seek in attorney fees, the constitutional issue protected by the suit is
important to protecting society and alerting law enforcement of the requirement that it comply
with the Fourth Amendment.
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After the above adjustments to the lodestar amount, the court awards $397,462.50 as an
attorney fee to Plaintiffs’ counsel.
Paralegal and Clerk Expenses
Plaintiffs request $52,492 as an award for expenses incurred for paralegal and clerk
expenses. (Dkt. No. 435, Schedule 2). The Supreme Court has recognized that section 1988’s
provision for a “reasonable attorney’s fee” is not limited to admitted members of the bar.
Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989). The award may include time incurred
by “secretaries, messengers, librarians, janitors, and others whose labor contributes to the work
product for which an attorney bills her client.” Id. The Court specifically referenced the work
done by paralegals and stated that such work should be awarded at the “same level of
compensation that would be available from the market.” Id. at 286. Plaintiffs have supported
their request for paralegal and clerk expenses at the same level of detail as they provided to
support the time spent by attorneys. The court finds that the requested expenses are supported
by reasonably detailed billing records and affidavits. (Dkt. No. 361, Exs 1, 2, and 5).
Defendant Bairett objects to the expenses requested for paralegal and clerk time,
identifying time he contends was spent on the claims against Defendant Malcom and time spent
on public relations and work on unsuccessful claims that should be excluded. (Dkt.No. 406).
The amount Defendant Bairett identifies as relating to time spent on the Malcom claims totals
$14,399. The court has reviewed the time entries and finds that the time was spent on the
Malcom claims and should properly be excluded from any award. The court has also reviewed
the time entries for time Defendant Bairett contends was spent on public relations or
unsuccessful claims. That amount totals $7,920. The time entries support that most of the
paralegal time spent in this category appears to relate to claims against both defendants.
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Accordingly, for the same reasons explained in discussion the similar reduction in attorney
fees, the court finds that 50% of that amount should be excluded. After excluding the amounts
as described, the amount claimed for paralegal and clerk expenses is $34,133. The court finds
that the amount requested for paralegal and clerk expenses, as reduced, is reasonable and that
the expenses were reasonably incurred and necessary to the representation of the Plaintiffs and
the successful resolution of those claims against Defendant Bairett. The court awards $34,133
for paralegal and clerk expenses.
Request to Tax Costs
Plaintiffs include in their motion for attorney fees a request that the court also award
costs for necessary litigation expenses in the amount of $6,253.88 under 42 U.S.C. § 1982, 28
U.S.C. §1920 and the Equal Access to Justice Act, 28 U.S.C. §2412(2). (Dkt. No. 361, p. 20).
Plaintiffs previously filed a Bill of Costs requesting the same amount. (Dkt. No. 359). Pursuant
to Rule of Civil Procedure 54, the Clerk of the Court may tax costs on fourteen days notice.
The Bill of Costs is referred to the Clerk for resolution pursuant to Rule 54.
CONCLUSION
For the reasons stated above:
1.

Plaintiffs Motions for Attorney Fees (Dkt. Nos. 361 and 413) are GRANTED,

and Plaintiffs are awarded $397,462.50 as attorney fees.
2.

Plaintiffs Motions for an award for paralegal and clerk expense (Dkt. Nos. 361

and 413) are GRANTED, and Plaintiffs are awarded $34,133 for expenses incurred by
paralegals and clerks.
3.

Plaintiffs Motion to award costs (Dkt. No. 361) and Bill of Costs (Dkt. No. 359)

are referred to the Clerk for resolution.
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DATED this 25th day of January 2017.
BY THE COURT:

________________________________________
Clark Waddoups
United States District Judge

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