Plumb v. Salt Lake County et al
MEMORANDUM DECISION AND ORDER AWARDING ATTORNEY FEES-granting 139 Motion for Attorney Fees and 176 . Plaintiffs are awarded $311,681.86 as attorney fees. Plaintiffs' motion for reimbursement of expert appraisal and engineering fees and expenses is GRANTED, and Plaintiffs are awarded $30,547.61 for such expenses. Plaintiffs Motion to award additional costs 176 is referred to the Clerk for resolution. Signed by Judge Clark Waddoups on 2/13/17. (jmr)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
JACK SAMUEL PLUMB and JENNIFER
AND ORDER AWARDING
SALT LAKE COUNTY and SKYVIEW
EXCAVATION & GRADING, INC.,
Case No. 2:13-cv-1113 CW
Judge Clark Waddoups
Before the court is the motion of Plaintiffs Jack and Jennifer Plumb for an Award of
Attorney Fees and Other Litigation Expenses. (Dkt. No. 139.) The motion is supported by the
Declaration of Brandon J. Mark with attached exhibits (Dkt. No. 139-1) and the Supplemental
Declaration of Brandon J. Mark, also with attached exhibits (Dkt. No. 176). Judgment has been
entered in Plaintiffs’ favor (Dkt. No. 144), and the court previously ruled that Plaintiffs are
entitled to attorney fees for their inverse condemnation claims and for other costs specified in
42 U.S.C. § 4654(c). (Dkt. No. 132.) The issue now before the court is the reasonableness of the
amount of attorney fees requested. Defendant Salt Lake County opposes the motion, arguing that
the requested amount should be significantly reduced. (Dkt. No. 148.)
Plaintiffs initially requested attorney fees of $289,599.50, expert fees of $30,547.61, and
costs and expenses of $7,699.76, for a total of $327,846.87. (Dkt. No. 139.) After the post-trial
motions, Plaintiffs supplemented their motion to request an additional $31,722.00 in attorney
fees and $5,879.17 for additional and untaxed costs, for a total of $365,448.04. (Dkt. No. 176.)
Plaintiffs’ Original Request for Attorney Fees
The beginning point in determining the reasonableness of a request for attorney fees is
the lodestar amount, calculated by multiplying the hours spent times a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This same methodology has been recognized as
appropriate to determine the fees to be awarded under the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654 (the “Acquisition Act”). Hash
v. United States, No. 1:99-cv-00324-MHW, 2012 WL 1252624, at *3 (D. Idaho April 14, 2012).
The lodestar amount must be supported by detail specifying the dates, tasks accomplished, and
the time spent on the various tasks. Id. The descriptions must be sufficiently detailed to allow the
court to determine that the task was reasonably related and necessary to pursue the claim. Id. The
court finds that the lodestar amount in this case is supported by sufficient detail to allow the
court to determine the reasonableness of the request. The court also finds that the hourly rates
used to calculate the lodestar amount are consistent with fees regularly charged by attorneys with
the experience and expertise of Plaintiffs’ lawyers.
There is a presumption that the lodestar amount is a reasonable fee, and the court should
deviate only in “‘exceptional’ cases.” Id. (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552 (2010)). The court should not “mechanically adjust the lodestar figure downward based
on the amount involved and the results obtained.” Bywaters v. United States, 684 F.3d 1295,
1296 (Fed. Cir. 2012) (citation, quotation marks, and brackets omitted). Moreover, because the
Acquisition Act is intended “to permit people with small takings claims to vindicate their rights
with the assistance of competent counsel,” the reasonableness of the fee is not driven necessarily
by the amount of the recovery. Id. (citation and quotation marks omitted). The Act’s purpose is
the vindication of “constitutionally protected property rights.” Id. (citation and quotation marks
omitted). The court should also consider that the plaintiff in such an action was forced to litigate
with the government entity and any unreasonableness of the government entity’s actions in
refusing to offer reasonable compensation for the property taken. Pete v. United States, 569 F.2d
565, 568 (Ct. Cl. 1978). The court may also weigh the nature of the opposition and defenses
offered by the government entity in determining the fees reasonably incurred. Indeed, the fact
that the fees incurred exceed the amount recovered is not a basis for reducing the fees if the court
finds they have been reasonably necessary to respond to the government entity’s litigation
approach to resisting fair compensation. See, e.g., Swisher v. United States, No. 98-1352-CM,
2003 WL 2006818 (D. Kan. March 3, 2003).
Nevertheless, the court is required to carefully evaluate the reasonableness of the fee
requested and appropriately adjust it to account for the results obtained and the necessity of the
time spent. In Hensley, the Supreme Court gave the following guidance:
There is no precise rule or formula for making these determinations. The district
court may attempt to identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success. The court necessarily
has discretion in making this equitable judgment. This discretion, however, must
be exercised in light of the considerations we have identified.
461 U.S. at 436–37. These considerations include the skill and experience of the lawyers and
whether there has been a good-faith effort to exclude hours that are excessive, redundant, or
otherwise unnecessary. Id. at 434. The court should also consider whether the billing attorneys
have exercised “billing judgment.” Id. The court may also adjust the fee upward or downward
based on the “result obtained,” while recognizing that this consideration includes whether the
plaintiff achieved excellent results and the type of relief obtained. Id. A fee should not
mechanically be reduced simply because a plaintiff did not prevail on all of the relief requested.
Id. at 434–35.
Salt Lake County raises the following seven objections to the amount of fees requested.
First, the County argues, relying on Emeny v. United States, 526 F.2d 1121, 1123 (Ct. Cl. 1975),
that the Acquisition Act “does not allow the prevailing party in an inverse condemnation [action]
to recover expenses incurred prior to the filing of the lawsuit.” (Dkt. No. 148, p. 4.) The County
argues that Plaintiffs began incurring fees in March 2013 but that the first time entry mentioning
the drafting of complaint was October 25, 2013. (Dkt. No. 148, p. 5.) Thus, it contends that the
fee request should be reduced by 18.3 hours for time billed during this interim period. (Dkt. No.
148, p. 5.) The County does not assign a dollar value to the reduction it seeks.
In Emeny, the court affirmed the trial court’s award to the plaintiffs of damages in the
amount of $221,880 for the taking of gas storage rights and incidental rights in the surface of
plaintiffs’ land and of $341,346.60 as litigation expenses. Id. at 1126. The Government opposed
the award as excessive. See id. at 1124. The requested expenses included pre-litigation expenses
and litigation expenses. Id. at 1123–25. The court rejected the request for pre-litigation expenses
as not being allowed by the Acquisition Act. Id. at 1124. In explaining its ruling, the court noted
that § 4654(c) only allows for “‘reasonable’ expenses that are ‘actually incurred because of’ a
proceeding” brought for the taking of property. Id. The court described the time spent on “prelitigation” as efforts “to ascertain the nature and extent of their property right in the gas storage
capacity of the Bush Dome, and . . . to obtain a recognition of such right from the Government
through negotiations.” Id. Such efforts were not expended because of the litigation, but to clarify
the nature of the property rights. See id. The court concluded that it was precluded by the
language of § 4654(c) from awarding expenses before plaintiffs decided to file suit and declined
to award the amount incurred pre-litigation. Id.
The Emeny court did, however, allow the time incurred to pursue the litigation once the
plaintiffs decided to file suit, but it reduced the requested amount because of plaintiffs’ strategy
of hiring several law firms to be assured they presented a strong legal position. Id. at 1125–26.
The court noted that plaintiffs had engaged “duplicate sets of lawyers” to bring and review the
claims asserted and that, while this may have been “objectively reasonable” from plaintiffs point
of view, the Government should not bear that expense. Id. at 1124, 1126. The court eliminated
the fees requested for time spent reviewing the principal attorneys’ work, awarding 91% of the
total expense requested. Id. at 1126. The award included $69,240.15 for time the plaintiffs spent
establishing their right to recover litigation expenses. Id. at 1127. The court rejected the
argument that the requested fees should be further reduced because they exceeded the amount
awarded as damages. See id. at 1126.
Here, the County argues that under the Emeny precedent any time spent prior to
Plaintiffs’ drafting of the complaint should be excluded. (Dkt. No. 148, pp. 4–5.) The argument
does not prevail. First, it is clear from a review of the time entries that the work during the period
from March 2013 through October 2013 was incurred because of the proceeding. The entries
show counsel met with their clients, investigated the facts, complied with pre-filing notice
requirements, and engaged in research necessary to advance the litigation. There was no issue as
to the Plaintiffs’ ownership of the land or the nature of their title. Second, there is no duplication
of effort between multiple law firms to review and test the soundness of Plaintiffs’ legal theories.
The Emeny precedent and analysis are not applicable to this case.
Second, the County next objects that the requested fee should be reduced for work on
claims brought against Skyview Construction. (Dkt. No. 148, pp. 5–9.) It argues that these were
wholly separate claims and were not incurred because of the condemnation proceeding. (Dkt.
No. 148, p. 5.) It further argues that the claims against Skyview were dismissed with prejudice,
with each party to bear its own attorney fees and costs. (Dkt. No. 148, p. 6.) The County
identifies a total of 10.5 hours as examples of the difficulty of determining which time should be
allocated to the Skyview claims. (Dkt. No. 148, pp. 7–9.) The County suggests that the resolution
of this difficulty is to reduce by 50% all of the fees incurred prior to Skyview’s dismissal. (Dkt.
No. 148, p. 9.) The court also rejects this objection. The principal weakness of the argument is
that the County completed the taking of Plaintiffs’ property through Skyview’s actions, which
the County directed and approved. Thus, Plaintiffs were required to investigate, conduct
discovery, and pursue the claims against Skyview in order to prevail on their claims against the
County. Moreover, Plaintiffs succeeded in proving that Skyview’s conduct resulted in a taking of
their property, as well as proving their claims against Skyview, which claims were settled only
after a jury verdict in favor of Plaintiffs. Additionally, a review of the 10.5 hours the County
argues as an “example” of time not awardable supports that the time would have been incurred
even if no claims had been brought against Skyview. For instance, time was spent conducting
discovery against Skyview and reviewing Skyview documents, all essential to pursuing the claim
against the County.
Third, the County objects that Plaintiffs have not met their burden of proving that the
requested fees are reasonable. (Dkt. No. 148, pp. 9–11.) It argues that the number of hours spent
is not “proportional” to the complexity and novelty of the issues raised, was duplicative, and
included time for “general legal research” that should not be allowed. (Dkt. No. 148, pp. 10–11.)
The County provides no citation to billing entries it believes are duplicative and suggests no
amount that it claims would adjust the requested fees to be appropriately proportional. The court
rejects the arguments. Where the objecting party fails to identify problematic billing entries, it is
not the role of the court to review the records and do the work the objecting party has failed to
do. More importantly, the court has reviewed the billing records and finds that the time was
appropriately incurred and consistent with the work necessary to assert the claims and respond
the defenses raised by the County.
Fourth, the County argues the requested fees should be reduced because Plaintiffs’
counsel has not exercised “billing judgment.” (Dkt. No. 148, pp. 11–12.) The County relies upon
Case v. Unified School District No. 233, Johnson County, Kansas, 157 F.3d 1243, 1250 (10th
Cir. 1998), in which the Court defined “billing judgment” as the “winnowing” of hours down to
the hours that “an attorney would not properly bill to his or her client.” The County does not
suggest any amount by which it claims the requested fees should be reduced, but it does argue
that Plaintiffs’ counsel must not have exercised billing judgment because they included almost
50 hours for legal research performed by law clerks and over 100 hours spent on administrative
tasks and “inter-office communications.” (Dkt. No. 148, pp. 11–12.) Plaintiffs respond that
counsel has in fact exercised billing judgment by removing all time for work done exclusively on
the Skyview trespass or negligence claims. (Dkt. No. 150, p. 5.) They respond further that the
fees requested were in fact billed to the Plaintiffs and the time spent by law clerks and paralegals
was appropriately adjusted and that the time actually billed was needed to respond to the
County’s motions. (Dkt. No. 150, pp. 5–6.) In the absence of the County identifying any specific
entries it contends were unreasonably incurred, the court is left with the task of determining
whether the time entries appear on their face to be reasonable and properly related to the claims
made. That review confirms that the Plaintiffs’ counsel reasonably assigned work to law clerks
and paralegals to have the work completed at their lower billing rates and that the work was
consistent with the briefing and other responses necessary to advance the claims and respond to
the County’s motions and other defenses.
Fifth, the County again objects that the requested fee should be reduced because several
lawyers worked on the case and duplicated effort. (Dkt. No. 148, p. 12.) It argues that more than
a dozen attorneys worked on the case and at least five attorneys billed more than 200 hours each.
(Dkt. No. 148, pp. 12–13.) The County relies upon Cloverport Sand & Gravel, Inc. v. United
States, 10 Cl. Ct. 121, 125 (1986), for the proposition that the court should consider whether
there has been duplication and review “with particular care” the number of lawyers involved in
various court proceedings. (Dkt. No. 148, pp. 12–13.) The Plaintiffs respond that only two
attorneys worked on the case at any one time, except for a brief time early on when a junior
attorney reviewed documents. (Dkt. No. 150, p. 7.) They also respond that the Tenth Circuit has
recognized that “intra-office” conferencing is compensable, citing Anchondo v. Anderson,
Crenshaw & Associates, L.L.C., 616 F.3d 1098, 1105 (10th Cir. 2010). The court has reviewed
the time spent and the number of attorneys assigned to work on the various tasks. From the
billing entries it appears that the assignments were appropriate and the work reasonably related
to the claims and defenses. The court also notes that intra-office communications are necessary
to coordinate the work and are often strategic and that conceptual discussions about the theory of
the case, the evaluation of the strength of the evidence, and additional discovery and research
necessary to advance the claims may be the most effective and valuable time spent on behalf of
the client. Such conferences provide the client with the benefit of the experience and wisdom of
the more senior attorneys while the day-to-day work is completed by more junior attorneys at a
lower billing rate. The court should recognize and not penalize the attorneys for such
coordination and conferences.
While recognizing the value of such work, the court must also observe that sometimes
additional attorneys are asked to work on a case primarily for the convenience of the law firm.
This is not to suggest such action is improper, but simply in recognition that a new attorney may
be asked to complete an assignment when the attorneys regularly working on a case are not
available. This may be necessary to meet filing deadlines or other demands of the practice. While
not improper, such assignments do require some duplication in explaining to the new lawyer
relevant background and prior history of the case and the issues to be addressed. Where such
duplication is primarily for the benefit of the law firm, it is appropriate to discount the fees by
some reasonable amount. There is, of course, no precise formula or mathematical calculation to
address such an adjustment, and the court must rely upon its own experience, familiarity with the
facts and complexity of the case, and review of the time entries submitted in support. Based on
these factors, the court has determined that the fees requested by the Plaintiffs should be reduced
by 3% of the total requested fee, including the supplemental request, to account for this type of
duplication. This reduction is $9,639.65.
Sixth, the County objects additionally that the requested fee should be reduced for time
spent on basic legal research. (Dkt. No. 148, p. 15.) It relies upon Bell v. Turner Recreation
Commission, No. 09-2097-JWL, 2010 WL 126189 (D. Kan. Jan. 8, 2010), in which race
discrimination and retaliation were alleged. The Court reduced the number of hours allowed,
citing Case, in which the Tenth Circuit questioned the need for “preliminary research” on the
retaliation claim. Id. at *10. Here, the County questions the need for 47.9 hours billed for
research by two law clerks. It also questions 8.1 hours spent by a more senior attorney for
“[r]esearch and review of information for drafting motion to exclude expert testimony.” (Dkt.
No. 148, pp. 15–16.) The Plaintiffs respond that the time spent for research was just prior to trial
and was necessary to prepare jury instructions and the special verdict form and to respond to the
County’s motion for directed verdict. (Dkt. No. 150, p. 8.) They also explain that the 8.1 hours
spent by a senior attorney was not background research, but was spent both to research and draft
the motion, which required reviewing the expert report and deposition transcripts, as well as the
relevant legal authorities. (Dkt. No. 150, p. 8.)
The County’s objection is not well taken. First, the research was done at a critical time in
the preparation of the case. In the court’s experience, if there is a criticism to be directed at
attorneys for inadequate trial preparation, it is that they spend too little time researching and
drafting jury instructions. The care spent by attorneys to understand existing precedent,
conceptualize their legal theory in the context of the facts the evidence will support, and prepare
well-crafted jury instructions and special verdict forms is of great value to the client and to the
court. Counsel should be rewarded for such care, not penalized. Moreover, the time spent is
consistent with the time required based on the court’s own experience in practice and in the time
spent by the court and its staff to address these same issues in this case. In today’s world, given
the complexity and breadth of civil causes of action most practicing attorneys are required to
address, it is naïve to suggest an attorney should be able to bring an action as complex as this
action without researching the current state of the legal authorities and their application to the
facts of the case at hand.
Finally, the County objects that the requested fee is not proportional to the complexity of
the issues litigated and should be “drastically” reduced. (Dkt. No. 148, p. 16.) The County relies
upon the cases of Mares v. Credit Bureau of Ratan, 801 F.2d 1197 (10th Cir. 1986), and Ramos
v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983), in which the Court reduced the hours allowed
because the attorneys billed hours in excess of the national averages of hours billed each day.
(Dkt. No. 148, pp. 16–17.) The County characterizes this case as a “relatively uncomplicated
inverse condemnation claim” and says it should not have required the number of hours billed
given the amount of discovery taken and the days spent in trial. (Dkt. No. 148, pp. 16–17.) The
Plaintiffs respond that the inverse condemnation claim was not simple and was the most
contested legal issue in the trial. (Dkt. No. 150, pp. 8–10.) They further argue that the County
caused the Plaintiffs to incur the time and should not be heard to complain where the County
“tenaciously” litigated the claim. (Citing Case, 157 F.3d at 1253–54.) Plaintiffs further argue that
the result achieved significantly exceeded the amount offered by the County at mediation just
prior to trial. The court observes that at all times the County had two attorneys from the District
Attorneys Office actively involved in the case and, soon after the case was filed, added an
attorney from a private law firm. All three counsel generally appeared on all documents filed on
behalf of the County. All three counsel appeared at the major hearings, and all three counsel
appeared for the County at trial. The County obviously viewed the issues sufficiently important
and complex to require the representation by all three attorneys. Based on it having resolved the
pre-trial motions and dealing with the issues presented at trial, the court finds hours expended by
Plaintiffs’ counsel were reasonable given the complexity and importance of the issues to the
Plaintiffs. The County’s objection is overruled.
Plaintiffs’ Supplemental Request for Fees
Plaintiffs’ original motion requested fees for time incurred through June 8, 2016. (Dkt.
No. 139.) Following the entry of the Clerk’s Judgment on June 27, 2016, the County filed
motions for Judgment as a Matter of Law and for New Trial. (Dkt. Nos. 151 and 152.) The Court
denied both motions on December 22, 2016. (Dkt. No. 173.) On December 30, 2016, Plaintiffs
filed their supplemental declaration seeking additional fees for the time required to respond to
the post-trial motions. (Dkt. No. 176.) In the Supplemental Declaration, Plaintiffs summarize all
of the time incurred from the inception of the case and the amount of fees Plaintiffs assert should
be award. Plaintiffs did not separately summarize the fees incurred to respond to the post-trial
motions. By comparing the prior submissions, the court has calculated the additional time to be
96.4 hours of senior attorney time and 2.2 hours of paralegal time. (Dkt. NO. 176-1.) The
additional fees requested for this time is $31,722. Plaintiffs provided detailed billing records to
support the additional fees requested. The County submitted a Supplemental Memorandum in
response. (Dkt. No. 177.) The County objects that the additional fees requested are excessive, but
other than the request for additional costs, which will be addressed hereafter, argues only that it
was not necessary for two attorneys to appear at all hearings. (Dkt. No. 177, p. 2.) The court has
reviewed the detailed time entries and finds that the additional time spent was reasonable and
necessary to address the issues the County’s post-trial motions raised. It is appropriate and
customary for both trial attorneys to appear at hearings raising the type of substantive issues
raised in the post-trial motions. If the County had prevailed on the relief it was seeking, it would
have resulted in the jury verdict being vacated and the damage award denied or reduced. It was
in the Plaintiffs’ interest for both counsel to be at the hearing to respond to the court’s questions
and advance arguments based on their experience and knowledge of the proceedings. The
requested additional fees are not inconsistent with the amount of time and effort required to
respond to the arguments made. By comparison, in Emeny the Court approved $69,240.15 in
additional fees to support the plaintiffs’ right to recover litigation expenses on a fee request
comparable to the request here. 526 F.2d at 1127. The court rejects the County’s objection.
Award of Attorney Fees
Having reviewed the original request for attorney fees, the supplemental request for
attorney fees, the supporting evidence, and detailed billing records and having considered the
County’s objections and arguments, the court finds that with the adjustment discussed above the
requested fees were reasonable and necessary because of the inverse condemnation proceeding.
The court awards attorney fees in the amount of $311,681.86 ($321,321.50 less 3%).
Request for Expert Fees
Plaintiffs request $30,547.61 for expert fees. (Dkt. No. 139.) The request is supported by
invoices for appraisal services and testimony from Troy Lunt of Integra Realty Resources,
invoices from GSH Geotechnical, Inc. for geotechnical evaluation, and an invoice from ESI
Engineering, Inc. for professional engineering services. (Dkt. No. 139-1, Ex. B.) The invoices
and the declaration support that the services were incurred in connection with and because of the
inverse condemnation claim against the County. Section 4654(c) of the Acquisition Act
expressly provides that the court may reimburse a prevailing plaintiff “reasonable costs,
disbursements, and expenses, including . . . appraisal, and engineering fees, actually incurred
because of such proceedings.” Rose Acre Farms, Inc. v. United States, 55 Fed. Cl. 643, 670
(2003) (citation and quotation marks omitted). The County in its opposition to the motion for
fees and expenses does not raise any objection to awarding the expert fees or to the amount
requested. (See Dkt. Nos. 148 and 177.) The court finds that the expert fees requested were
reasonably necessary to pursuing the claim against the County and are reasonable in amount
based on the arguments and evidence presented. The court awards $30,547.61 as expert appraiser
and engineering fees.
Review of Objections to the Bill of Cost
Plaintiffs timely submitted a Bill of Costs for a total of $7,467.60 on June 27, 2016. (Dkt.
No. 145.) The County did not file a response. On August 1, 2016, the Clerk of the Court taxed
costs of $5,725.40, disallowing $1,742.20 for copying costs the Clerk determined were not
adequately supported as necessary to the case. (Dkt. No. 153.) In the Supplemental Declaration,
Plaintiffs request an additional $4,136.97 for costs following the Clerk’s award of costs and
object that the Clerk should have allowed the costs denied on its original Bill of Costs. (Dkt. No.
176.) The County objects to the additional costs requested and responds to the arguments that the
Clerk should have allowed the untaxed costs. (Dkt. No. 177.)
Pursuant to Rule of Civil Procedure 54, the Clerk of the Court may tax costs on fourteen
days’ notice. Because the Clerk has not determined whether to allow the additional costs
requested, the court defers ruling on the request until after the Clerk makes the initial
determination. In addition, any objection to the costs denied by the Clerk should be raised as a
request for review of the Clerk’s taxation of costs. Therefore, the court defers ruling on any
objections until the Clerk makes a determination of all of the costs requested. The request for
additional costs is referred to the Clerk for resolution pursuant to Rule 54.
For the reasons stated above:
Plaintiffs’ Motions for Attorney Fees (Dkt. Nos. 139 and 176) are GRANTED,
and Plaintiffs are awarded $311,681.86 as attorney fees.
Plaintiffs’ motion for reimbursement of expert appraisal and engineering fees and
expenses is GRANTED, and Plaintiffs are awarded $30,547.61 for such expenses.
Plaintiffs Motion to award additional costs (Dkt. No. 176) is referred to the Clerk
DATED this 13th day of February, 2017.
BY THE COURT:
United States District Judge
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