Allenmore Medical Investors, LLC v. City of Tacoma et al

Filing 165

ORDER granting in part and denying in part 145 Plaintiff's Motion for Attorney Fees; granting a reduced attorney fee; denying prejudgment interest; signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 ALLENMORE MEDICAL INVESTORS, LLC, CASE NO. C14-5717-RBL ORDER ON FEES 10 Plaintiff, v. 11 CITY OF TACOMA, et al. DKT. #145 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 THIS MATTER is before the Court on Plaintiff Allenmore Medical Investors’ Motion for Fees and an Award of Prejudgment Interest [Dkt. #145]. This case asked the Court to consider whether the Defendants City of Tacoma and its councilmembers discriminated against Plaintiff AMI by interfering with its efforts to develop a shopping center with Walmart as the anchor tenant. It was hard fought. Defendants prepared a motion for judgment on the pleadings and three motions for summary judgment (two considered by the Court, one of which included oral argument). After a twelve-day bench trial, the Court dismissed AMI’s claims against the individual councilmembers, who it determined had legislative immunity, but found the City liable for harming AMI. It awarded AMI $2,026,391.00—approximately 2/3 of its total compensatory damages request. 24 ORDER ON FEES - 1 AMI’s counsel, Rafel Law Group, now requests its attorney’s fees under 42 U.S.C. 1 2 § 1988(b). RLG asks the Court to enhance its total fee award beyond the amount AMI owes it 3 because RLG’s fees are lower than the market rate and it obtained “substantial success.” AMI 4 asks the Court to award it prejudgment interest. The City does not dispute the reasonableness of 5 RLG’s rates but argues the Court should reduce RLG’s total award because it was unsuccessful 6 on its claims against the councilmembers and because it billed unnecessary time. The City 7 opposes an enhancement because it disagrees this case is one of the “rare and exceptional” 8 circumstances when one might be warranted. It also argues against prejudgment interest on the 9 ground that Court awarded AMI its compensatory damages already. 10 I. DISCUSSION RLG is a small Seattle law firm practicing construction and real estate litigation. Anthony 11 12 Rafel, an attorney with 35 years of experience, is the managing partner. Paul Raskin, who has 13 practiced for 24 years, is his partner. Rafel and Raskin performed the majority of the work on 14 this case. Tyler Ellrodt worked as of counsel. He has 37 years of experience. RLG hired 15 temporarily Lynne Wilson, a contract associate with 29 years of experience. Christina Schuck, 16 who has six years of experience, and Timothy Feth, who was admitted to the bar in 2016, work 17 as the firm’s associates. Ellrodt, Wilson, and Feth each spent around 150 hours on the case. 18 Shuck spent even less. Trish Bashaw, a senior paralegal with 40 years of experience, was the 19 only paralegal assigned to the case. Only Rafel worked on it from its inception. RLG claims it spent 3,410.701 total hours pursuing AMI’s claims, and incurred 20 21 $1,051,872.50 in total attorney’s fees. It proposes this amount as the lodestar, to which it asks the 22 Court to apply a 20% enhancement. 23 24 1 Includes a one hour reduction from Bashaw’s time. See Dkt. #145 (Rafel Dec.) at 5. DKT. #145 - 2 1 Name 2 3 4 Anthony Rafel 5 6 Paul Raskin 7 Tyler Ellrodt 8 Lynne Wilson Christina Shuck 9 Timothy Feth 10 11 Trish Bashaw 12 15 2012: $360 2013: $360 2014: $375 2015: $375 2016: $375 2017: $400 2016: $350 2017: $375 2014: $350 2015: $350 2015: $285 2012: $225 2016: $175 2017: $200 2013: $160 2014: $160 2015: $160 2016: $160 2017: $160 Average Rate2 Total Hours Worked $383.03 1128.8 $432,360.50 $360.69 1002.5 $361,592.50 $350.00 137 $47,950.00 $285.00 $225.00 176.4 15.4 $50,274.00 $3,465.00 $186.71 154.8 $28,902.50 $160.00 795.8 $127,328.00 3410.7 $1,051,872.50 Totals Total with Enhancement 13 14 Hourly Rates Total Fees Charged (Proposed Lodestar) $1,262,247.00 Table 1: RLG employees’ rates and hours spent pursuing AMI’s case. A. Attorney’s Fees. 16 “The general rule in our legal system is that each party must pay its own attorney’s fees 17 and expenses…but Congress enacted 42 U.S.C. § 1988 in order to ensure that federal rights are 18 adequately enforced” by providing “that a prevailing party in certain civil rights actions may 19 recover ‘a reasonable attorney’s fee as part of the costs.’” Perdue v. Kenny A. ex rel. Winn, 559 20 U.S. 542, 550, 130 S. Ct. 1662, 1671, 176 L. Ed. 2d 494 (2010) (citing Hensley v. Eckerhart, 461 21 U.S. 424, 429, 103 S. Ct. 1933, 76 L.Ed.2d 40 (1983)). A “reasonable fee” is one that “is 22 23 24 2 The “Average Rate” reflects each individual’s total fee charged divided by his/her total hours worked through April 28, 2017. See Dkt. #145 (Rafel Dec.) at 9–10. DKT. #145 - 3 1 sufficient to induce a capable attorney to undertake the representation of a meritorious civil 2 rights case” without producing a windfall to attorneys. Id. at 552. Courts determine this number 3 using “a two-step hybrid lodestar/multiplier approach.” Welch v. Metro. Life Ins. Co., 480 F.3d 4 942, 945 (9th Cir. 2007). The Court first establishes a lodestar by multiplying a reasonable 5 hourly rate by the number of hours reasonably expended on the litigation. See id.; see also 6 Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). Second, in rare and 7 exceptional cases, the Court may adjust the lodestar upward or downward using a multiplier 8 based on facts not subsumed in the lodestar calculation. See Perdue, 559 U.S. 554–55. The party 9 seeking fees bears the burden of proof; it must submit evidence supporting the rates and hours 10 claimed. See Hensley, 461 U.S. at 433. 11 1. 12 RLG claims its rates are below market. It supports its argument with a declaration from Reasonable Rate. 13 James Savitt, a Seattle-based commercial litigator; prior attorney’s fee awards granted by the 14 Court in other cases; and descriptions of the background of most3 of the employees on the case. 15 The City does not dispute RLG’s employees’ hourly rates. 16 An hourly rate is reasonable if it falls within the range of “prevailing market rates in the 17 relevant community,” Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L.Ed.2d 891 18 (1984), given “the experience, skill, and reputation of the attorney requesting fees.” Chalmers v. 19 City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.). Courts do not determine this rate by 20 referring to the rates actually charged. See Chalmers, 796 F.2d 1205, 1210 (9th Cir. 1986). 21 Rather, the reasonable rate is based on the prevailing market rate for similar services. See Welch 22 v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (citing Carson v. Billings Police 23 24 3 RLG did not provide Wilson’s or Shuck’s education or accolades. See Dkt. #145 (Rafel Dec.) at 2–3. DKT. #145 - 4 1 Dep’t, 470 F.3d 889, 892 (9th Cir. 2006) (holding the district court properly reduced the 2 “reasonable rate” because the market rate—not the individual contract between the applicant 3 attorney and the client—“provides the standard for lodestar calculations”)). 4 Rafel and Raskin are experienced attorneys who showed great adeptness, poise, and 5 resiliency before the Court, on paper and at trial. They represented AMI well. Savitt claims their 6 rates, and their colleagues’ rates, are reasonable but lower than the market average. Rafel, 7 Raskin, and Ellrodt, each of whom has over 20 years of experience, charged between $350 and 8 $400/hour. Savitt contends $450/hour for their levels of experience, ability, and this type of case 9 is more common, although he has even seen commercial litigators’ rates exceeding $600/hour. 10 He contends RLG’s associates’ and Bashaw’s rates are also “within the norms of this community 11 for commercial litigation associates” but “at the lower end of the range.” Dkt. #157 (Savitt Dec.) 12 at 3. He does not detail what civil rights attorneys typically make per hour in Seattle, which is 13 noteworthy because the civil rights (violations of equal protection and due process) aspect of this 14 litigation justify shifting fees. 15 In the Court’s experience, RLG’s partner rates are at the lower end of the market range 16 for both real estate and civil rights litigation, but they are within range. RLG and AMI agreed 17 how much AMI would pay RLG’s employees for their services per hour. This is not the type of 18 case where unless RLG offered an indigent or destitute AMI a significant discount below its 19 normal rates, AMI’s civil rights would not have been vindicated. Rather, a skilled businessman 20 and a successful law firm reached an agreement that induced RLG to accept representation; 21 clearly the market welcomes the rates RLG charges. And while RLG’s partner’s rates are lower 22 than they could be, Rafel and Raskin performed approximately seven times the amount of work 23 as their associates. If they had charged more but had tasked their associates with researching and 24 DKT. #145 - 5 1 drafting more, RLG’s total fee request likely would mirror its present request. RLG’s partners’ 2 lower-than-they-could-be-but-still-in-the-market rates appear to represent a trade-off for the 3 partners’ heavy involvement and need to keep costs reasonable. To adjust RLG’s rates to the 4 middle or higher end of the spectrum would contravene Congress’s intent when it allowed for fee 5 shifting in civil rights cases because it would either produce a windfall to RLG or would equate 6 to a punitive damage award for AMI. RLG’s rates are reasonable as they stand. 7 2. 8 RLG claims it spent 3,410.7 hours working on AMI’s case. The City (1) argues RLG 9 Hours Reasonably Expended. should not receive compensation for time spent pursuing claims on which it lost, and so asks the 10 Court to reduce Rafel’s and Raskin’s hours by 20%. It requests a reduction of 222 hours (or 11 $84,972.72) for Rafel and 196.6 hours (or $70,854.64) for Raskin. The City (2) also argues the 12 Court should reduce RLG’s total time by 218.775 hours (or $67,089.62) to properly eliminate 13 duplicative, redundant, and unnecessary work. RLG argues all of its work was reasonable and 14 necessary—as evidenced by the fact that AMI paid it without dispute and without knowing 15 whether it would prevail—and to grant the City both of these categorical deductions would be to 16 double-count hours against RLG. 17 18 i. Time Spent on Unsuccessful Claims. The City argues the Court should not award RLG fees for the time it spent pursuing its 19 unsuccessful claims, such as the claims it brought against the individual councilmembers. It asks 20 the Court to deduct the time RLG spent opposing the dismissal of these claims. It suggests a 20% 21 reduction in Rafel’s and Raskin’s time. RLG argues that because all of AMI’s claims were based 22 on a single set of facts, and because the Court awarded AMI nearly all of its requested damages, 23 the Court should not carve out a reduction for its unsuccessful claims. 24 DKT. #145 - 6 1 When a plaintiff brings multiple claims and only prevails on some, whether his counsel 2 receives fees for pursuing the unsuccessful claims depends on the interconnectedness of his 3 claims. See Hensley, 461 U.S. at 435. If plaintiff’s claims involve “a common core of facts or 4 [are] based on related legal theories,” the Court should focus on the significance of the overall 5 relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation” 6 when awarding fees. Id. The Court should note that while a wholly compensatory fee may be 7 appropriate, “the product of hours reasonably expended on the litigation as a whole times a 8 reasonable hourly rate may [just as easily] be an excessive amount” given the partial or limited 9 success. Id. at 436. If a plaintiff instead brings “distinctly different claims for relief that are based 10 on different facts and legal theories,” the Court should not award counsel fees for his 11 unsuccessful claims because the time spent on those claims “cannot be deemed to have been 12 expended in pursuit of the ultimate result achieved.” Id. at 435. (internal quotations omitted). 13 RLG presented a unified story: The City, through its councilmembers, repeatedly 14 attempted to block AMI’s development of a shopping center housing Walmart as an anchor 15 tenant. It claimed the Defendants wrongly singled out AMI to stop or delay Walmart from 16 entering Tacoma. Especially considering the relationship between the Defendants, RGL would 17 have been remiss not to pursue claims against both. RLG’s billing records also show it devoted 18 its time to the litigation as a whole and not to discrete claims. 19 The Court awarded AMI an amount close to its stated actual damages. AMI claimed 20 $2,052,063 in damages, with a prejudgment interest of $1,190,196, for a total request of 21 $3,242,259 in compensatory damages. The Court awarded it $2,026,391—approximately 2/3 of 22 AMI’s requested amount and a substantial result. 23 24 DKT. #145 - 7 Because of the interconnectedness of AMI’s facts and claims and its near-total success, 1 2 the Court will not reduce blanketly RLG’s hours. It should be compensated wholly. 3 ii. Unnecessary Time. The City presents seven tables to the Court identifying groupings of time it argues are 4 5 duplicative, redundant, or unnecessary. It asks the Court to subtract these hours from RLG’s 6 award. 7 To calculate the number of hours to be compensated, the Court considers “whether, in 8 light of the circumstances, the time could reasonably have been billed to a private client.” 9 Moreno v. City of Sacramento, 534 F.3d 1106, 111 (9th Cir. 2008). “By and large, the Court 10 should defer to the winning lawyer’s professional judgment as to how much time he was 11 required to spend on the case; after all, he won, and might not have, had he been more of a 12 slacker,” id. at 1112; however, the Court must exclude any “excessive, redundant, or otherwise 13 unnecessary” hours. Hensley, 461 U.S. at 434. 14 First, the City argues the 77.6 hours (or $24,735.00) RLG spent responding to the City’s 15 first motion for summary judgment (Dkt. #12, City’s Mtn. for Summary Judgment on Due 16 Process) was unnecessary because the Court granted AMI a relief from its deadline. AMI argues 17 it had to respond to the City’s motion because the Court did not grant its request until after its 18 response was due. 19 The City filed its motion on November 26, 2014. AMI’s response was due December 15, 20 2014. On December 4, it asked the Court to relieve it of its deadline. This motion was noted for 21 December 12, 2014. The Court granted AMI’s motion on December 30, but by that time, AMI 22 had already filed its response, and the City had filed a reply. See Dkt. #26. 23 24 DKT. #145 - 8 1 Because the Court had not yet considered AMI’s motion for relief from its response 2 deadline, AMI had to file a response to the City’s motion. To do otherwise, would have been to 3 commit malpractice and to have forfeited a large part of AMI’s case to the City. However, AMI 4 could, and should, have taken efforts to bring its motion for relief to the Court’s attention sooner, 5 such as by calling or emailing the courthouse. AMI’s seemingly lackluster attempt to push back 6 its deadline suggests it did not need to move for relief. Although granted, this motion had little 7 practical effect, and did not serve its intent. The Court therefore subtracts the time RLG spent on 8 its motion for relief from its total hours. Rafel’s 2014 hours are reduced by 12.1 hours, and 9 Ellrodt’s 2014 hours are reduced by 0.50 hours. 10 11 12 13 14 Second, the City asks the Court to excise 7 hours (or $2,050.00) of redacted time, arguing RLG has not shown, and cannot show, the time was reasonably spent. 7/14/2014 7/15/2014 6/11/2015 9/21/2015 3/6/2016 Rafel Rafel Bashaw Wilson Rafel Prepare litigation [redacted] Further revisions to [redacted] Trip to courthouse to [redacted] [redacted]; [redacted] Review revised [redacted; relates to potential settlement approach] $562.50 $75.00 $160.00 $1,140.00 $112.50 7 15 1.5 .20 1.00 4.00 .30 $2,050.00 Table 2: City’s Table 2, Dkt. #153 (Response) at 16. 16 17 18 19 20 21 22 23 RLG argues these entries are extractions, and their reasonableness is understood when the entry is read as a whole. Reading the extracted entries in conjunction with the other descriptions of work for each date indicate the redacted time was spent working on AMI’s case. Except for a couple entries, however, the Court cannot evaluate their necessity. For example, the Court cannot infer the reasonableness of the July 14 and 15 entries. But, RLG’s September 21, 2015 entry is understood in context as “[a]dditional Westlaw research regarding standing,” and RLG’s March 6, 2016 entry was for time spent strategizing its settlement approach. Both are reasonable and necessary 24 DKT. #145 - 9 1 fee requests, and RLG should be compensated for them. Also, RLG has already excluded its June 2 11, 2015 travel time from its fee request, see Dkt. #145 (Rafel Dec.) at 5, so the Court will not 3 double-count this time against it. The Court will exclude 1.7 hours of Rafel’s time in 2014 from 4 RLG’s total hours. 5 Third, the City identifies 85.7 hours (or $23,369.50) it argues the Court should subtract 6 because they were unrelated to AMI’s successful claims. This time includes media time, time 7 RLG spent researching a motion to compel that the City argues RLG forfeited, AMI’s 8 unsuccessful § 1985 claim, and AMI’s motion to exclude the defendants’ expert, which the Court 9 denied. RLG argues the Court should not make a reduction because these hours include time 10 spent reviewing documents, preparing a motion to exclude the City’s expert that led, arguably, to 11 the City not calling that witness, and drafting a motion to compel. 12 The Court agrees RLG reasonably spent this time on the litigation, except to the extent it 13 includes time spent with the press. The time RLG spent preparing to talk to the media, and 14 talking to the media, was not spent litigating AMI’s claims. Therefore, the Court will deduct 1.3 15 hours of Rafel’s 2014 time. 16 Fourth, the City identifies five time entries (for a total of 2.7 hours) that it argues appear 17 unrelated to the case, and it asks the Court to exclude these hours. RLG argues these time entries 18 are for the work it spent pursuing a creative settlement strategy, but because Walmart was 19 disinterested, AMI did not present its settlement idea to the City. 20 21 The Court encourages parties to settle their disputes. This time spent seeking a resolution is properly included in RLG’s fee request. 22 23 24 DKT. #145 - 10 1 Fifth, the City argues the Court should reduce RLG’s hours spent responding to the 2 City’s motion for judgment on the pleadings by 25%. RLG argues a 25% reduction is arbitrary 3 and improper. 4 RLG spent 31.9 hours (or $11,432.50) responding to the City’s motion, which the Court 5 denied. The Court sees no reason to believe these hours were excessive, unreasonable, or 6 unnecessary. The Court will defer to RLG’s professional judgment that it spent the time 7 responding to the City’s motion that it needed to avoid an early dismissal of AMI’s claims and 8 no more. 9 10 11 Sixth, the City asks the Court to discount the time RLG spent responding to the City’s written discovery requests by 25%. RLG again argues a 25% reduction is arbitrary. RLG spent 35.6 hours (or $11,877.00) responding to the City’s two sets of discovery 12 requests. This time includes the hours it spent supplementing its answers. RLG was obligated to 13 respond to the City’s requests and to supplement those responses. The Court again defers to 14 RLG’s judgment that it spent no more time than was necessary, especially because this time was 15 spent away from its preparation of its own case. 16 Seventh, the City argues the time RLG spent researching attorney client privilege and 17 pursuing a motion for in camera review was excessive, and so the Court should reduce it by 18 50%. RLG argues the Court granted AMI’s motion, and the City should not be permitted to post- 19 hoc nitpick AMI’s legal strategy. 20 Privilege and its limitations played an important role in this litigation, where many 21 witnesses were employed and represented by the City. RLG necessarily spent time researching 22 the issue, strategizing, and moving the Court. The Court determined the City properly withheld 23 as privileged most of the documents AMI challenged as improperly withheld, but not all. See 24 DKT. #145 - 11 1 Dkt. #59 (Order Compelling Production) at 2. One of those documents (Ex. 228) provided 2 evidence of a meeting that the Court referenced in its Findings of Fact. The Court will not reduce 3 the time AMI spent on privilege. 4 3. 5 RLG asks the Court to increase its fee award by 20%, for a total award of $1,262,247.00. 6 It argues a multiplier is appropriate because it accepted an unpopular case (many in Tacoma did 7 not want a Walmart in the City), the odds were stacked against it (as it “was literally suing City 8 Hall” and the City’s counsel represented most of the crucial witnesses, many of whom asserted 9 privilege), and it prevailed (against skilled counsel with substantial resources). 10 Enhancement. The City argues against enhancing the lodestar under Perdue v. Kenny A. ex rel. Winn, 11 559 U.S. 542, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010). The Perdue Court concluded a district 12 court did not provide proper justification for a large enhancement of fees it awarded. Id. at 557. It 13 held that only in the “rare and exceptional circumstances” when the lodestar does not adequately 14 consider “a factor that may properly be considered in determining a reasonable fee,” may a 15 district court apply an enhancement, id. at 554, and even then, may only do so if it calculates the 16 enhancement “using a method that is reasonable, objective, and capable of being reviewed on 17 appeal.” Id. at 555. The City argues AMI has not shown this is a “rare” case warranting an 18 enhancement. It also references Perdue for its argument that AMI should be compensated at the 19 rate it requested. Citing id. at 557 n.7 (“There is nothing unfair about compensating these 20 attorneys at the very rate they request.”) (emphasis in original). 21 The lodestar figure is presumptively reasonable, Pennsylvania v. Delaware Valley 22 Citizens’ Council for Clean Air, 483 U.S. 711, 728, 107 S. Ct. 3078, 3088, 97 L. Ed. 2d 585 23 (1987), but, in rare cases, may be adjusted. See Perdue, 559 U.S. at 554–55. Courts must decide 24 DKT. #145 - 12 1 whether to enhance or to reduce the lodestar figure based on an evaluation of the Kerr factors4 2 that are not already subsumed in the initial calculation. See Fischer v. SJB-P.D. Inc., 214 F.3d 3 1115, 1119 (9th Cir. 2000). An adjustment must be supported by “specific evidence on the 4 record and detailed findings” that the lodestar figure “is unreasonably low or unreasonably high.” 5 Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). The Court should 6 calculate it “using a method that is reasonable, objective, and capable of being reviewed on 7 appeal, such as by applying a standard rate of interest to the qualifying outlays of expenses.” 8 Perdue, 559 U.S. at 555. 9 AMI’s case is not the rare exception warranting an enhancement. Rather, it is the typical 10 case where the lodestar adequately reflects what the fee award should be, based on reasonable 11 rates and hours. The factors RLG points to as justifying a multiplier—the undesirability of the 12 case, the attorneys’ abilities, and their success—are already subsumed in the lodestar calculation. 13 RLG brings no new factor to the Court’s attention. Accordingly, the Court refuses to enhance 14 RLG’s fee award. 15 B. 16 17 Prejudgment Interest. AMI asks the Court to award it prejudgment interest, to wholly compensate it, because by closing, it had suffered $2 million in losses. It asks the Court to use the state rate of 12%, 18 4 19 20 21 22 23 24 These factors are (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill required to perform the legal service properly, (4) the preclusion of other employment by the attorney due to accepting 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). See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69–70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). Many are subsumed in the lodestar calculation. See Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041, 1045– 47 (9th Cir. 2000) (discussing the factors that should be considered when deciding whether to adjust the lodestar figure). DKT. #145 - 13 1 because the federal rate is so low (1.04%), and this case involved a local controversy about the 2 misapplication of state vesting law and local land use laws (although it asks for fee shifting and 3 prejudgment interest because the case involved claims under 42 U.S.C. § 1983). Alternatively, it 4 suggests that if the Court wants to use a rate closer to the federal rate, it could use 8%. 5 The City points out that the Court has already awarded AMI compensatory damages, and 6 so argues the Court has implicitly rejected AMI’s request for prejudgment interest. It also argues 7 that under Teevin v. Wyatt, 75 Wn. App. 110, 114, 876 P.2d 944 (1994), a litigant may not obtain 8 prejudgment interest against the City. 9 Prejudgment interest compensates a plaintiff for losing the use of its money from the time 10 its claim accrued until the entry of judgment. See Schneider v. Cty. of San Diego, 285 F.3d 784, 11 789 (9th Cir. 2002) (quoting West Virginia v. United States, 479 U.S. 305, 311 n.2, 107 S. Ct. 12 702, 93 L.Ed.2d 639 (1987)). Whether a court should award it “is a matter of statutory 13 interpretation, federal common law, and, in some instances, state law.” See id. (citing Monessen 14 Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 337–38, 108 S. Ct. 1837, 100 L.Ed.2d 349 15 (1988)). 16 The City extends Teevin too far. Teevin holds that when the City of Seattle enacted an 17 ordinance obligating the City to pay judgments entered against its employees, it did not waive its 18 immunity from prejudgment interest on tort judgments. See Teevin, 75 Wash. App. at 116. It says 19 nothing about whether the City has immunity from prejudgment interest on federal equal 20 protection and due process claims. 21 The Ninth Circuit has recognized the availability of prejudgment interest in § 1983 22 actions, but has remained silent on how district courts assess its appropriateness in cases 23 involving equal protection and due process claims. See Schneider v. Cty. of San Diego, 285 F.3d 24 DKT. #145 - 14 1 784, 791 (9th Cir. 2002) (concluding the district court correctly determined prejudgment interest 2 could be awarded where county had committed an unconstitutional taking and setting forth 3 analysis). At least two district courts have reasoned that “the award of prejudgment interest in a 4 case under federal law is a matter left to the sound discretion of the trial court, and is governed 5 by considerations of 1) fairness, 2) making the plaintiff whole (i.e., compensation), and 3) 6 balancing the equities.” Murphy v. City of Elko, 976 F. Supp. 1359, 1363 (D. Nev. 1997) 7 (involving Section 1983 employee discharge claim); see also Golden State Transit v. City of Los 8 Angeles, 773 F.Supp. 204, 214 (C.D.Cal.1991) (involving Section 1983 labor claim). 9 AMI does not describe why the Court should award it prejudgment interest, only that the 10 Court “should.” AMI’s damages are not liquid. They were not determined until resolution of the 11 case at trial, where AMI received 2/3, not 3/3, of its damages request. It would be fundamentally 12 unfair to charge the City for damages it could not have predicated with certainty. AMI also 13 neglects describing how its award of $2,026,391.00 in compensatory damages failed to make it 14 whole. And unlike in an employment case, at no point was the City sitting on, and collecting 15 interest on, AMI’s $2 million. Rather, AMI lost money to the Elks (the seller of the property it 16 developed) and from Walmart. The equities therefore do not tip in AMI’s favor. The Court 17 declines to issue AMI prejudgment interest. 18 II. CONCLUSION 19 AMI’s Motion for Fees and an Award of Prejudgment Interest [Dkt. #145] is GRANTED 20 IN PART AND DENIED IN PART. RLG’s hourly rates are reasonable without an enhancement. 21 RLG’s total hours must be reduced by the time it did not work in direct pursuit of this litigation: 22 by 15.6 hours. It therefore reasonably expended 3395.1 hours on this case. The City owes 23 $1,045,913.80 in attorney’s fees. 24 DKT. #145 - 15 1 Name Average Rate 2 3 4 5 6 7 Anthony L. Rafel Paul R. Raskin Tyler B. Ellrodt Lynne Wilson Christina Schuck Timothy S. Feth Trish L. Bashaw Totals $383.03 $360.69 $350.00 $285.00 $225.00 $186.71 $160.00 Adjusted Total Hours Worked 1128.8 – 15.1 = 1113.7 1002.5 137 – 0.5 = 136.5 176.4 15.4 154.8 795.8 3395.1 Adjusted Total Fees Charged (Lodestar) $426,576.80 $361,592.50 $47,775.00 $50,274.00 $3,465.00 $28,902.50 $127,328.00 $1,045,913.80 Table 3: Lodestar Calculation from December 4, 2012 to April 28, 2017. AMI’s request for prejudgment interest is DENIED. 8 IT IS SO ORDERED. 9 Dated this 15th day of June, 2017. 10 A 11 12 Ronald B. Leighton United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 DKT. #145 - 16

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