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Heard v. Dist. of Columbia

September 5, 2006

JOSEPH S. HEARD, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently before the Court is Plaintiff Joseph S. Heard's Motion for Attorney's Fees and Costs Pursuant to Federal Rule of Civil Procedure 54(d) against Defendant District of Columbia (hereinafter, "the District"). Following the August 4, 2005 Consent Judgment of $1.1 million, plus reasonable costs, including reasonable attorney's fees, entered by this Court against the District,*fn1 Plaintiff now seeks an award of $962,097.00 in attorney's fees for his current counsel, Goodwin Procter LLP; $61,200.00 for his former counsel, W. Thomas Stovall II; $80,400.00 for his former counsel, Othello G. Jones, Jr.; and $71,013.36 in costs. See Pl.'s Mot. for Attn'y's Fees at 7. The District has entered a partial opposition to this request, contending that Plaintiff's fee request is excessive and rife with internal problems. According to the District, Plaintiff's former counsel are entitled to no attorney's fees, and his present counsel are entitled to -- at best -- $440,000. See D.C.'s Opp'n at 26.

Upon the completion of the relevant briefing, the Court referred Plaintiff's Motion for Attorney's Fees to Magistrate Judge Alan Kay for a Report and Recommendation pursuant to Federal Rule of Civil Procedure 72(b), 28 U.S.C. § 636(b)(1)(B), and Local Rule of Civil Procedure 72.3(a). On June 16, 2006, Magistrate Judge Kay issued his Report and Recommendation, which concluded that (1) Plaintiff was entitled to the entire $71,013.36 in costs; but that (2) Goodwin Procter LLP was entitled to only $577,258.20 in attorney's fees; (3) Stovall was entitled to only $15,300.00 in attorney's fees; and (4) Jones was entitled to only $20,100.00 in attorney's fees. Plaintiff has filed an Objection to Magistrate Judge Kay's Report and Recommendation on Plaintiff's Fee Petition, to which the District has submitted an Opposition, and Plaintiff has entered a Reply.*fn2 Upon a searching examination of all pertinent filings, the attached exhibits, the relevant case law, and the entire record herein, the Court -- pursuant to its considerable discretion and studied reflection -- shall (1) adopt Magistrate Judge Kay's recommendations with respect to both costs and the awards granted Plaintiff's former counsel, Stovall and Jones; and (2) adopt-in-part Magistrate Judge Kay's recommendations with respect to Goodwin Procter. Instead, the Court concludes that attorney's fees in the amount of $889,267.30 for Goodwin Procter against the District is both reasonable and appropriate.

I. BACKGROUND

On November 15, 1998, Plaintiff Joseph S. Heard -- "a deaf man who has no verbal skills" and who "is unable to communicate effectively through reading, writing, or lip-reading," Second Am. Compl. ¶¶ 5, 36 -- was arrested and charged with unlawful entry of a George Washington University building in case M-16624-98. Id. ¶ 37. On June 7, 1999, Plaintiff was committed to St. Elizabeth's Hospital because of concerns over his mental competency. However, on October 13, 1999, Judge John Campbell of the District of Columbia Superior Court ordered M-16624-98 dismissed and directed that Plaintiff be released from custody. Id. ¶ 38. Sometime after his court appearance on October 13, 1999, as was the practice, Plaintiff was transported to the D.C. Jail, a facility operated by the District, accompanied by no paperwork other than the release order signed by Judge Campbell. Id. ¶ 39.

However, rather than release Plaintiff, employees of the D.C. Jail held him in order to determine whether, in addition to the dismissed charges in M-16624-98, he had any pending charges that would require his preventive detention. Id. ¶ 41. On October 14, 1999, a D.C. jail clerk confirmed that Plaintiff had no charges currently pending against him, which she noted in his file. Id. ¶ 42. Unfortunately, this finding did not lead to Plaintiff's release, as no employee followed up to make sure that Plaintiff's release was effectuated. Id. ¶ 43. For the next 669 days, a period of approximately 22 months, Plaintiff was unlawfully held at the D.C. Jail and subjected to a variety of medical testing and treatment without his informed consent. Id. ¶ 44. Plaintiff's dire situation was exacerbated by the D.C. Department of Corrections' dysfunctional record-keeping system, policy flaws, and missed -- or ignored -- chances to correct the error, as well as his own inability to communicate, which was a result of his disabilities and second-grade level reading ability and the District's failure to provide him with a certified sign language interpreter. Id. ¶ 49.

Finally, in July 2001, the mistake behind Plaintiff's detention was uncovered when inmates in his mental health unit were scheduled to be transferred to other facilities and his name was not on the list. On August 12, 2001, Plaintiff was finally released from his solitary cell in the D.C. Jail. After obtaining representation, Plaintiff brought this suit on February 15, 2002. See generally Compl. However, due to certain deficiencies in Plaintiff's constitutional claims as pleaded, apparent concessions made by Plaintiff's counsel, the subsuming effect of a Section 1983 action, and the applicable statute of limitations, the Court was forced to dismiss 8 out of the original 11 counts contained within Plaintiff's Complaint. See Heard v. Dist. of Columbia, Civ. A. No. 02-296 (D.D.C. Sept. 29, 2003) (dismissing counts I-IV, V, VII-XI of the Complaint, as well as Defendant D.C. Department of Corrections). Following the dismissal of a majority of Plaintiff's Complaint, Plaintiff's original counsel in this litigation -- W. Thomas Stovall, II, and Othello G. Jones, Jr. -- stepped aside and John Moustakas, Michele Roberts, and Adam Chud of Shea & Gardner LLP (now Goodwin Procter LLP) entered an appearance on behalf of Plaintiff in December 2003. Paul Friedman of Shea & Gardner also entered an appearance in this matter on behalf of Plaintiff on July 30, 2004.

Plaintiff's new counsel were able to reconceptualize his civil rights claims, leading to a Second Amended Complaint wherein Plaintiff asserted violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("ADA"); and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. ("Rehabilitation Act"). Following the August 2004 filing of Plaintiff's Second Amended Complaint and the commencement of the discovery phase of this litigation, both the District and Plaintiff's new counsel engaged in a nearly year-long legal campaign that can best be described by the phrase "scorched earth." A highly contested series of motions was filed over issues including, inter alia:

* Is Plaintiff mentally competent? Is Plaintiff in need of the appointment of a guardian ad litem? If Plaintiff is not competent, how could Plaintiff verify his responses to the District's interrogatories?

* Are Plaintiff's responses to the District's interrogatories and requests for documents sufficient, or should further information be compelled?

* Is the District required to provide the Plaintiff with documents relating to the changes made to the District's policies and practices following Plaintiff's release from illegal detention? Should the District be required to provide the names of inmates it knows were over-detained or released early over the past 25 years? Should the District be required to provide information relating to the sanctioning or disciplining of Department of Correction employees for any over-detentions or early releases? Should the District be required to provide information relating to the sanctioning or disciplining of D.C. Jail employees for actions with respect to health, safety, and food services at the D.C. Jail? Should the District be compelled to provide information identifying persons who participated in and were briefed about the investigation of Plaintiff's incarceration? Should the District be forced to provide information relating to any audit or investigation into the status of its inmate file system conducted over the last 25 years?

* Can the District renege on its informal Tolling Agreement with Plaintiff, which would have allowed the Plaintiff additional time within the relevant statute of limitations period to investigate and name the "John Doe" Defendants listed in his Second Amended Complaint?

* Should discovery be temporarily stayed to facilitate settlement discussions? If so, for how long should the stay be in effect? Once in effect, should the temporary discovery stay be lifted?

* Should Plaintiff's deposition subpoena directed to the Mayor of the District of Columbia be quashed and a protective order granted? Should the Mayor be compelled to accept service of Plaintiff's Opposition to such a motion?

* Should Plaintiff's claims for injunctive and declaratory relief be dismissed due to a lack of jurisdiction?

* Should mediation be continued or abandoned? Should discovery once again be stayed for mediation?

* Should any award to Plaintiff be "set-off" for the alleged "value" of the services Plaintiff received at the D.C. Jail during his incarceration?

* Should default judgment be entered against certain defendants?

In addition to motions surrounding these issues, the parties were simply unable to agree to the simplest extension of time, with every motion that sought to extend the time to file any document bitterly contested by the non-moving party. Along with the flurry of motions exchanged between the parties, discovery also commenced in full during this period, as Plaintiff took 11 depositions and made preparations for many more, including Federal Rule of Civil Procedure 30(b)(6) witnesses, Mayor Williams, Deputy Mayor Kellums, and several Records Office and Jail employees.

Finally, after numerous mediation sessions, which involved yeoman's work by Magistrate Judge Kay and the critical presence of Plaintiff's guardian ad litem Jonathan L. Stern, Plaintiff and the District were able reach the broad contours of a settlement by February 2005. However, due to much vacillation on the part of the District and continued negotiation around the details, the parties were unable to fully stipulate to a consent judgment until June 16, 2005. Following the settlement in principle of Plaintiff's action against the District, and his contemporaneous agreement with the District's co-defendant CCHPS, counsel for Plaintiff then engaged in highly innovative legal work on behalf of Plaintiff. Realizing (1) the need to protect and maintain the substantial financial award due Plaintiff, and (2) the real need to ensure that Plaintiff would receive adequate care in the future so that he could maximize his abilities and minimize the impact of his disabilities upon his lifestyle, Plaintiff's counsel consulted with a series of special needs trust attorneys, investment advisors, and potential trustees and/or guardians. As a result of this investigation, Plaintiff's counsel were able to propose to the Court a Special Needs Trust for Plaintiff that would both guard and protect his award and ensure proper care for Plaintiff.

On August 4, 2005, the Court held an extended hearing during which it approved Plaintiff's Consent Judgment against the District of Columbia for $1.1 million, plus reasonable costs, including reasonable attorney's fees, as well as Plaintiff's separate settlement with CCHPS. After a series of further discussions, the Court on September 26, 2005 approved the Special Needs Trust set up by Plaintiff's counsel on his behalf. However, given that Plaintiff and the District were unable to resolve the extent of the "reasonable attorney's fees" owed Plaintiff, despite much negotiation and exchange of documents around this issue, Plaintiff filed a Motion for Attorney's Fees and Costs Pursuant to Federal Rule of Civil Procedure 54(d) on August 4, 2005. Following the completion of briefing on this motion, which was extended upon request by the District, the Court referred the motion to Magistrate Judge Kay for a Report and Recommendation pursuant to Federal Rule of Civil Procedure 72(b), 28 U.S.C. § 636(b)(1)(B), and Local Rule of Civil Procedure 72.3(a). On June 16, 2006, Magistrate Judge Kay issued his Report and Recommendation, which concluded that Plaintiff's request should be granted-in-part and denied-in-part. According to Magistrate Judge Kay's studied evaluation, (1) Plaintiff was entitled to the entire $71,013.36 in costs; but that (2) Goodwin Procter LLP was entitled to only $577,258.20 in attorney's fees; (3) Stovall was entitled to only $15,300.00 in attorney's fees; and (4) Jones was entitled to only $20,100.00 in attorney's fees. Following the issuance of the Report and Recommendation, Plaintiff filed an Objection to Magistrate Judge Kay's Report and Recommendation on Plaintiff's Fee Petition, to which the District submitted an Opposition, and Plaintiff entered a Reply.

II. LEGAL STANDARDS

A. Reviewing a Magistrate Judge's Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(B), a United States District Court is authorized to refer certain motions -- such as motions for attorney's fees -- to a magistrate judge for proposed findings of fact and recommendations for the disposition. The Court reviews the Magistrate Judge's report and recommendation de novo, where a party has raised objections. See Fed. R. Civ. P. 54(d)(2)(D); Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). When a district court assigns a motion to a Magistrate Judge and the Magistrate issues a report, a party dissatisfied with the report has a well-delineated obligation.

A party objecting to the recommended disposition of the matter shall promptly arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate judge deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Fed. R. Civ. P. 72(b). "This rule does not permit a litigant to present new initiatives to the district judge." Aikens v. Shalala, 956 F. Supp. 14, 19 (D.D.C. 1997) (citing Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)). Moreover, failure to file timely objections to either the legal or factual aspects of a Magistrate Judge's recommendations waives the opportunity to challenge the district court's adoption of those recommendations. See Thomas v. Arn, 474 U.S. 140, 150-151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("It does not appear that Congress intended to require the district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."); Aikens, 956 F. Supp. at 20 n.7 ("A majority of the circuits have a longstanding rule that the failure of a party to object to either the factual or legal aspects of a Magistrate Judge's recommendations waives the opportunity to challenge the district court's adoption of those recommendations.") (citing cases); LCvR 72.3(b).

B. Evaluation of Attorney's Fees Petitions

The Civil Rights Attorney's Fee Awards Act of 1976 provides, inter alia:

In any action or proceeding to enforce a provision of section 1981, 1982, 1983, 1985, and 1986 of this title . . . a court in its discretion may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . .

42 U.S.C. § 1988. The ADA and Rehabilitation Act provide for a similar recovery of attorney's fees for prevailing parties. See 42 U.S.C. § 12205 ("In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.") (ADA); 29 U.S.C. § 794a(b) ("In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.") (Rehabilitation Act).

Accordingly, under each of the relevant statutes, a plaintiff must meet the definition of a "prevailing party" to garner attorney's fees. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curium). "[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Once a party is deemed to have "prevailed," the court must then determine whether the fees sought are reasonable by calculating "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate" -- the so-called "lodestar" fee. Hensley, 461 U.S. at 433, 103 S.Ct. 1933; Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). A reasonable fee is one that is "adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys." Blum, 465 U.S. at 894, 104 S.Ct. 1541 (quoting S. Rep. No. 94-1011, at 6 (1976); H.R. Rep. No. 94-1558, at 8 (1976)). After calculating the lodestar figure, in some cases the court -- in its discretion -- may adjust the fee upward or downward based on other considerations, especially the degree of success that the plaintiff had in prevailing on his or her claim. Farrar, 506 U.S. at 114-15, 113 S.Ct. 566.

On the issue of reasonableness, the plaintiff must submit supporting documentation with the motion for attorney's fees, "providing sufficient detail so that the Court can determine 'with a high degree of certainty' that the hours billed were actually and reasonably expended, that the hourly rate charged was reasonable, and that the matter was appropriately staffed to do the work required efficiently and without duplicative billing." Watkins v. Vance, 328 F. Supp. 2d 23, 26 (D.D.C. 2004) (quoting In re Olson, 884 F.2d 1415, 1428-29 (D.C. Cir. 1989) (emphasis in original)). "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. 1933. At a minimum, the plaintiff must provide some information about the attorneys' billing practices and hourly rate, the attorneys' skill and experience (including the number of years that counsel has practiced law), the nature of counsel's practice as it relates to this kind of litigation, and the prevailing market rates in the relevant community. Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

In this undertaking, counsel for the prevailing plaintiff must demonstrate that they have exercised "billing judgment." As the Supreme Court has emphasized,

The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. In the private sector, "billing judgment" is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority.

Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (internal citations and quotation marks omitted) ...


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