Ostling et al v. City of Bainbridge Island et al
Filing
181
ORDER granting 155 Plaintiffs' Motion for Attorney Fees in the amounts as set forth in this Order. Signed by Judge Ronald B. Leighton.(DN)
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HONORABLE RONALD B. LEIGHTON
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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WILLIAM OSTLING, individually and as
Personal Representative of the Estate of
DOUGLAS OSTLING, deceased; JOYCE
OSTLING; and TAMARA OSTLING,
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ORDER RE: ATTORNEYS’ FEES
AND COSTS
Plaintiffs,
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CASE NO. 3:11-cv-05219-RBL
v.
CITY OF BAINBRIDGE ISLAND, a
political subdivision of the State of
Washington; JON FEHLMAN; and JEFF
BENKERT,
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Defendants.
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I.
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INTRODUCTION
THIS MATTER is before the Court on Plaintiffs’ Motion for Attorneys’ Fees and Costs
19 [Dkt. #155]. The case arises out of the death of Douglas Ostling, a mentally ill man who was
20 shot in his home by Bainbridge Island police officers. A jury awarded Plaintiffs one million
21 dollars in damages on a failure-to-train claim and a claim of deprivation of familial
22 companionship. The jury rejected Plaintiffs’ unlawful search, excessive force, and failure-to-aid
23 claims.
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ORDER RE: ATTORNEYS’ FEES AND COSTS - 1
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The parties dispute the amount of the attorneys’ fees and costs. Plaintiffs request fees at
2 their hourly rate plus a 1.5 multiplier based on the novelty of the failure-to-train claim, for a total
3 award of $688,535.83. Defendants argue that fees are not warranted, or alternatively, that fees
4 should be reduced by one half, for a total of $137,653.90, because Plaintiffs prevailed on only
5 one of their four claims. For the reasons set forth below, the Court awards Plaintiffs’ fees and
6 costs in the amount of $392,401.84.
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II.
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A. Plaintiffs are a Prevailing Party
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Absent unusual circumstances, the Court shall award reasonable attorneys’ fees and costs
DISCUSSION
10 under 42 U.S.C. § 1988 to prevailing parties in civil rights cases. Plaintiffs are “prevailing
11 parties” for attorneys’ fees purposes if they “succeed on any significant issue in litigation which
12 achieves some of the benefit the parties sought in bringing suit.” Farrar v. Hobby, 506 U.S. 103,
13 109 (1992) (citations omitted).
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The jury awarded Plaintiffs a one million dollar verdict on their failure-to-train claim. In
15 light of the Court’s denial of Defendants’ Motion for Judgment as a Matter of Law [Dkt. #148]
16 and Defendants’ Motion for a New Trial [Dkt. #151], Plaintiffs’ one million dollar verdict is
17 certainly a success on a significant issue. Plaintiffs are a prevailing party and shall be awarded
18 reasonable fees. The issue is what fees are reasonable.
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B. Reasonable Fees
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The first step in determining reasonable fees is to calculate the lodestar figure, by taking
21 the number of hours reasonably expended on the litigation and multiplying it by the appropriate
22 hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court should exclude
23 overstaffed, redundant, or unnecessary time. Id. at 434. The Court must also consider the extent
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ORDER RE: ATTORNEYS’ FEES AND COSTS - 2
1 of Plaintiffs’ success, as that is a “crucial factor” in determining an appropriate award. Id. at
2 440.
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After determining the lodestar figure, the Court should then determine whether to adjust
4 the lodestar figure up or down based on any Kerr factors that have not been subsumed in the
5 lodestar calculation.1 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975) cert.
6 denied, 425 U.S. 951 (1976).
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1. Reasonable Hourly Rate
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In determining hourly rates, the Court must look to the “prevailing market rates in the
9 relevant community.” Bell v. Clackamas County, 341 F.3d 858, 868 (9th Cir. 2003). The rates
10 of comparable attorneys in the forum district are usually used. See Gates v. Deukmejian, 987
11 F.2d 1392, 1405 (9th Cir. 1992). In making its calculation, the Court should also consider the
12 experience, skill, and reputation of the attorney requesting fees. Schwarz v. Sec’y of Health &
13 Human Servs., 73 F.3d 895, 906 (9th Cir. 1995). The Court is allowed to rely on its own
14 knowledge and familiarity with the legal market in setting a reasonable hourly rate. Ingram v.
15 Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).
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Plaintiffs propose rates for associates at $325 and $350, and for a partner at $550, based
17 on a survey for attorneys in the greater Seattle area, specifically at law firms Perkins Coie and
18 Lane Powell. Defendants respond that the rates are not comparable because Perkins Coie and
19 Lane Powell are large, international law firms, not plaintiff-side, contingency-based tort firms.
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The twelve Kerr factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other 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. Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). These considerations are consistent with
Washington Rule of Professional Conduct 1.5.
ORDER RE: ATTORNEYS’ FEES AND COSTS - 3
1 Even though those firms have a significant litigation practice, the similarities with Plaintiffs’
2 firm are limited. That said, Defendants do not propose a more appropriate rate. Instead,
3 Defendants suggest the discrepancies should affect the proposed multiplier.
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The Court will leave the rate as suggested by Plaintiffs ($325 for first chair associate
5 Nathan Roberts; $350 for second chair associate Julie Kays; $550 for consultant partner John
6 Connelly; and $125 for litigation paralegal Pamela Wells). The Court notes that it allowed
7 similar rates in a prior case involving local contingency-fee attorneys. Cornhusker v. Kachman,
8 No. 2:09-cv-00273-RBL, 2009 WL 2853119, at *4 (W.D. Wash. Sept. 1, 2009) (rates between
9 $350-$450). See also Ryan v. Dreyfus, 2010 WL 1692057, at *5 (W.D. Wash. Apr. 26, 2010)
10 ($350 rate for civil rights plaintiffs’ attorney). The proposed rates are reasonable.
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2. Reasonable Number of Hours
Defendants argue that Plaintiffs’ fee request is unreasonable because Plaintiffs lost on a
13 majority of their claims, and because many hours are redundant or unnecessary. Plaintiffs argue
14 their request is reasonable because they billed half the hours of Defense counsel and prevailed on
15 the significant failure-to-train claim.
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“By and large, the court should defer to the winning lawyer’s professional judgment as
17 to how much time he was required to spend on the case; after all, he won, and might not have,
18 had he been more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir.
19 2008). In determining the reasonable number of hours, the Court may exclude those hours that
20 are excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434
21 (1983); Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007).
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a. Claim by Claim
Defendants argue that hours billed for successful claims should be separated from hours
24 billed for unsuccessful claims. When the claims arise from a “common core of facts,” however,
ORDER RE: ATTORNEYS’ FEES AND COSTS - 4
1 the Court will not evaluate the hours spent on each claim, as “[m]uch of counsel’s time will be
2 devoted generally to the litigation as a whole, making it difficult to divide the hours expended on
3 a claim-by-claim basis.” Hensley, 461 U.S. at 435. Plaintiffs’ claims all arise from the same set
4 of facts—the shooting and death of Douglas Ostling. Thus, the Court will not parse hours claim
5 by claim.
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b. Non-Contemporaneous Billing; Fees on Fees; Paralegal Fees
Defendants argue that the Court should exercise its discretion and deny fees because
8 Plaintiffs’ counsel did not maintain contemporaneous billing. But, as Defendants note,
9 contemporaneous billing is not mandatory in the Ninth Circuit. In preparing the fee request,
10 Plaintiffs’ counsel reviewed their notes and correspondence. The Court declines to deny fees on
11 those grounds.
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Defendants also argue that the hours Plaintiffs spent working on their fee request should
13 be denied. As Plaintiffs note, however, “[w]ork performed on a motion for fees under § 1988(b)
14 is compensable.” McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir. 1995). The hours
15 billed working on the fee request is minimal and is awarded.
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Finally, the Court awards fees for paralegal Pamela Wells. Missouri v. Jenkins by Agyei,
17 491 U.S. 274, 288 (1989) (approving award of paralegal fees).
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c. Multiple Attorneys
Defendants’ main contention is that Plaintiffs’ counsel requests hours where multiple
20 attorneys were not necessary, specifically at depositions and through the participation of a senior
21 partner. Plaintiffs respond that the hours reflect the teamwork needed to pursue this case.
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Multiple Plaintiffs’ attorneys were present at most stages of this litigation. Because Mr.
23 Roberts is billing at the rate of an experienced associate (a rate earned through good, first-chair
24 quality work), the Court strikes the supporting attorneys’ hours at depositions, as well as the
ORDER RE: ATTORNEYS’ FEES AND COSTS - 5
1 senior partner’s hours observing trial. This teamwork appears to be redundant and supervisory in
2 nature, and would not normally be billed to a fee paying client. The Court approves the other
3 hours billed by multiple attorneys, including time reviewing briefing, developing strategy, and
4 preparing the case for trial.
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The Court eliminates the following fees:
DATE
ATTORNEY
12/20/2011 JAK
HOURS
7.0
12/21/2011 JAK
4.0
1/2/2012
3.5
7
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JAK
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6.0
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1/17/2012
JAK
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4.5
1.75
1.0
1.0
1.75
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DESCRIPTION
Prepare for and attend Deposition of
Bill Ostling
Prepare for and attend Deposition of
Bill Ostling
Attend deposition of Officer
Benkert
Prepare for and attend deposition of
Officer Portrey
Attend deposition of Chief Fehlman
Prepare for and attend deposition of
Carla Sias
Attend deposition of Ben Sias
Attend deposition of Chris Jensen
Prepare for and attend deposition of
Officer Berg
Attend deposition of Ellis Amdur
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1/18/2012
JAK
3.5
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1/19/2012
JAK
4.0
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1/19/2012
JAK
2.0
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1/23/2012
JAK
3.0
Prepare for and attend deposition of
defense expert Bragg
Attend deposition of defense expert
Fountain
Attend deposition of Van Blaricom
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1/24/2012
JAK
3.5
Attend deposition of Dr. Cummins
1/31/2012
JAK
12.0
TOTAL
JAK
Travel to and attend depositions of
Drs. Izenberg and Nelson
HOURS DEDUCTED: 58.5
1/2/2012
JRC
7.5
1/16/2012
JRC
4.5
1/17/2012
JRC
4.5
5/14/2012
JRC
3.0
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ORDER RE: ATTORNEYS’ FEES AND COSTS - 6
Attend Depositions of Officer
Portrey and Defendant Benkert
Meeting w/ NPR; Deposition
Preparation
Deposition of Defendant Chief
Fehlman
Observe opening statement,
feedback to NPR
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5/15/2012
JRC
3.5
2
5/30/2012
JRC
1.5
3
6/1/2012
JRC
1.5
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TOTAL
JRC
HOURS DEDUCTED: 26
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Observe trial witnesses; trial
strategy conference
Observe first portion of NPR
Closing
Courthouse for Jury Verdict
The lodestar amount for the work performed by Plaintiffs’ attorneys is $363,422.50,
6 calculated by multiplying each attorney’s total hours by the hourly rate:
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Individual
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Rate
Lodestar (pre-multiplier)
Nathan P. Roberts
Hours
Hours
Requested Granted
668.1
668.1
$325
$217,132.50
Julie A. Kays
293.5
235
$350
$82,250
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John R. Connelly, Jr.
79.8
53.8
$550
$29,590
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Pamela S. Wells
275.6
275.6
$125
$34,450.00
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TOTAL
$363,422.50
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d. Further Adjustment is Not Warranted
The final step in fee assessment is evaluating whether to enhance or reduce the
16 presumptively reasonable lodestar figure based on the Court’s evaluation of those Kerr factors
17 not subsumed in the lodestar calculation. Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir.
18 2006). Plaintiffs argue for a 1.5 multiplier largely based on the novelty of the failure-to-train
19 claim and the risk involved in pursuing it. Defendants argue for a one half reduction based on
20 Plaintiffs’ failure to establish a majority of their claims.
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In evaluating the factors, the Court notes that there is some novelty in pursuing a claim
22 for failure-to-train officers about mental illness. And Plaintiffs’ counsel, although relatively
23 inexperienced, performed skillfully at trial. Still, Plaintiffs’ counsel quickly accepted this case,
24 suggesting that it was a desirable one.
ORDER RE: ATTORNEYS’ FEES AND COSTS - 7
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The most dispositive factors are the results obtained and the time and labor required.
2 Plaintiffs lost three of the four claims they pursued, including the use of force claim, which
3 played a large role at trial and in case preparation. But, Plaintiffs’ counsel billed less than half
4 the hours of the Defense team. Pl.’s Reply, Dkt. #172 at 1. These two significant factors
5 counterbalance each other.
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The original lodestar amount provides an appropriate award. It provides a balance
7 between encouraging attorneys to take civil rights cases and preventing inappropriate windfalls.
8 After evaluating the Kerr factors, no adjustment to the original lodestar is warranted.
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C. Reasonable Costs
Defendants also argue that “[t]he Court should exclude parking, lodging, meals, trial
11 consulting, postage, telephone, travel, and transportation expenses because they constitute
12 overhead and are not generally taxable.” Def.’s Fee Opp., Dkt. #167 at 12. Plaintiffs argue that
13 the costs are recoverable as expenses normally charged to a fee paying client. In the Ninth
14 Circuit, “[i]t is well established that attorney's fees under 42 U.S.C. § 1988 include reasonable
15 out-of-pocket litigation expenses that would normally be charged to a fee paying client, even if
16 the court cannot tax these expenses as ‘costs’ under 28 U.S.C. § 1920.” Trustees of Const. Indus.
17 & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253, 1257 (9th Cir. 2006).
18 Thus, expenses recoverable under § 1988 may be greater than taxable costs.
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Plaintiffs’ expenses for meals, shipping, postage, parking, and travel are recoverable, as
20 they are generally charged to fee paying clients. Plaintiffs’ costs associated with deposing
21 Defendants’ experts are also recoverable. See Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th Cir.
22 1994) (affirming award of expenses for defense expert’s fee at deposition, postage, copying
23 costs, hotel bills, meals, messenger service, and employment record reproduction). Plaintiffs
24 were charged $3,100 by defense experts, and are awarded that amount.
ORDER RE: ATTORNEYS’ FEES AND COSTS - 8
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Precedent is less clear regarding costs for a party’s own experts. The Court joins other
2 district courts in this circuit and denies Plaintiffs’ request to recoup fees paid to its own experts.
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In West Virginia Univ. Hosp. Inc. v. Casey, 499 U.S. 83, 102, 111 S.Ct. 1138, 113
L.Ed.2d 68 (1991), the Supreme Court concluded that 42 U.S.C. § 1988 conveys
no authority to shift expert fees in civil rights cases to the losing party. . . . After
Casey, Congress amended § 1988 to specifically provide for the recovery of
expert fees in cases brought to enforce a provision of 42 U.S.C. § 1981 or 1981a.
Congress could have amended § 1988 to allow for expert fees in all cases covered
by § 1988(b), but did not. The Casey decision therefore stands with regard to §
1983 cases. . . . Because Plaintiffs pursued § 1983 claims, they cannot shift the
burden of their experts' fees to Defendants.
8 Agster v. Maricopa County, 486 F. Supp. 2d 1005, 1019 (D. Ariz. 2007) (internal citations
9 omitted); see also Ruff v. County of Kings, 700 F. Supp. 2d 1225, 1243 (E.D. Cal. 2010).
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The Court reduces Plaintiffs’ cost request by $61,671.66 for non-compensable expert
11 fees. The Court also reduces costs by $588.58 for non-compensable overhead expenses.
12 Plaintiffs’ other expenses, totaling $25,879.34, are approved. In total, the Court awards
13 Plaintiffs $28,979.34 in costs.
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III.
CONCLUSION
The Court awards Plaintiffs $363,422.50 in fees and $28,979.34 in costs, for a total
16 award of $392,401.84. The clerk shall prepare a judgment in this amount.
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IT IS SO ORDERED.
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Dated this 11th day of October, 2012.
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A
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Ronald B. Leighton
United States District Judge
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ORDER RE: ATTORNEYS’ FEES AND COSTS - 9
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