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Harvey v. Mohammed

United States District Court, District Circuit

June 26, 2013

DAVID HARVEY, et al., Plaintiffs,
v.
MOHAMMED, et al., Defendants.

MEMORANDUM OPINION

Signed by Royce C. Lamberth, Chief Judge.

Plaintiff David Harvey, Personal Representative for the Estate of Curtis Suggs, moves [276] for attorneys’ fees and costs from defendant the District of Columbia pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d)(2). Plaintiff initially requested $1, 675, 946.55, plus interest to be calculated as of the time of the award.[1] The District of Columbia Opposes [282] the motion and argues that plaintiff should be awarded “no more than” $890, 312.55 in attorneys’ fees and costs.

The District has also moved [281] for limited discovery to obtain time entries plaintiff’s counsel excised from their billing records, information regarding the fee arrangement between plaintiff and counsel with respect to settling defendants, and time records from counsel in their original electronic format, apparently to facilitate searching and analyzing the records for purposes of responding to the motion for attorneys’ fees.

The Court will award $1, 118, 976.30 in attorney’s fees and costs. The Court denies the District’s request for discovery given that the information sought is no longer relevant.

I. BACKGROUND

The facts of this case are described in greater detail in earlier memorandum opinions. See Harvey v. Mohammed, 2013 WL 1749899 (D.D.C. 2013); Harvey v. Mohammed, 841 F.Supp.2d 164 (D.D.C. 2012). This Court granted partial summary judgment for plaintiff in January 2012, holding for him on his § 1983 claim against the District, and his negligence claims against the District and two other defendants. Harvey, 841 F.Supp.2d at 174–80, 186–92. The Court later held for plaintiff with respect to his claim under D.C. Code § 7-1305.14. Pretrial Order 13, ECF No. 196. Defendants Symbral and the Mohammeds (“the Symbral defendants”) settled before trial, Order, ECF No. 221, and the case against another defendant was dismissed for failure to prosecute, Pretrial Order 17.

After a jury trial on damages, judgment in the amount of $2, 650, 000 was entered against the District of Columbia. The Court denied a subsequent motion for new trial or remittitur, Harvey, 2013 WL 1749899, and plaintiff moved for an award of attorneys’ fees and costs. Pl.’s Mot. Att’y Fees, Expert Fees, Expenses and Costs, ECF No. 276 [hereinafter Pl.’s Mot.].

The District of Columbia thereafter appealed the Court’s Judgment and the denial of its motion for new trial; plaintiff cross-appealed. Notice of Appeal, May 20, 2013, ECF No. 296; Notice of Cross Appeal, June 3, 2013, ECF No. 298. These appeals are pending in the D.C. Circuit. However, in the interest of justice, the fee issues should be considered at this time, rather than held in abeyance pending the outcome of the appeal. See LCvR 54.2.

II. LEGAL STANDARD

A fee applicant “bears the burden of establishing entitlement to [a fee] award, documenting the appropriate hours, and justifying the reasonableness of the rates.” Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).

Section 1988 of Title 42 provides that, in an action to enforce a provision of 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C. § 1988(b). “[T]he prevailing party ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).

“‘[P]laintiffs may be considered prevailing parties . . . if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’” Hensley, 461 U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 1978)); see also Id . at 433 n.8 (citing Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981) (“[T]he proper focus is whether the plaintiff has been successful on the central issue as exhibited by the fact that he has acquired the primary relief sought.”)). “This is a generous formulation that brings the plaintiff only across the statutory threshold. It remains for the district court to determine what fee is ‘reasonable.’” Id. at 433.

Without defining the term, § 1988 provides that a court may award a “reasonable attorney’s fee.” In general, “a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Perdue v. Kenny A., 130 S.Ct. 1662, 1672 (2010); see also Blum, 465 U.S. at 897 (quoting the Senate Report and explaining that “‘a reasonable attorney’s fee’ is one that is ‘adequate to attract competent counsel, but . . . [that does] not produce windfalls to attorneys.’”).

The “lodestar approach” has become the dominant method used by federal courts in calculating “reasonable” fees. Perdue, 130 S.Ct. at 1672. Under that approach, the attorney’s fee is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Blanchard, 489 U.S. at 94.

To determine reasonable hourly rates, it is customary in this District to apply the Laffey Matrix developed in Laffey v. Northwest Airlines, 572 F.Supp. 354 (D.D.C. 1983), aff’d in part and rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). Smith v. Dist. of Columbia, 466 F.Supp.2d 151, 155–56 (D.D.C. 2006). Federal courts need not automatically award Laffey rates, but can use their discretion to determine whether such rates are warranted. Fisher v. Friendship Pub. Charter Sch., 880 F.Supp.2d 149, 154 (D.D.C. 2012).[2]

The number of hours claimed by a prevailing party must also be reasonable. A district court may exercise discretion to reduce a fee award by particular amounts “in response to specific objections, ” DL v. Dist. of Columbia, 256 F.R.D. 239, 243 (D.D.C. 2009) (citing Donnell v. United States, 682 F.2d 240, 250 (D.C. Cir. 1982)), or “‘by a reasonable amount without providing an item-by-item accounting.’” Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004).

As discussed in more detail below, a reasonable attorney’s fee may also include certain other expenses. For example, in this Circuit, work performed by paralegals and law clerks is compensable. Sexcius v. Dist. of Columbia, 839 F.Supp. 919, 926 (D.D.C. 1993) (citing Missouri v. Jenkins by Agyei, 491 U.S. 274, 287 (1989)), as well as certain other expenses. This is discussed in more detail below. Finally, § 1988 also allows for the recoupment of “costs” which are likewise described in greater detail below.

When claims for attorney’s fees are brought against the government, courts should exercise “special caution” in scrutinizing the fee petition. This is “because of the incentive which the [agency’s] ‘deep pocket’ offers to attorneys to inflate their billing charges and to claim far more as reimbursement [than] would be sought or could reasonably be recovered from most private parties.” Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co., 743 F.2d 932, 941 (D.C. Cir. 1984) (internal citation omitted); see also Ctr. for Biological Diversity v. Norton, 2005 WL 6127286, at *1 (D.D.C. 2005) (“Courts must review fee applications carefully to ensure that taxpayers only reimburse prevailing parties for reasonable fees and expenses that contributed to the results achieved . . . .”). However, the D.C. Circuit has also noted, in the context of the Title VII attorney’s fee provision, that although “the government has a ‘deep pocket’ and . . . any fee request should be examined with care, . . . fees should be neither lower, nor calculated differently, when the losing defendant is the government.” Copeland v. Marshall, 641 F.2d 880, 896 (D.C. Cir. 1980) (en banc).

III. ANALYSIS

A. Plaintiff is a Prevailing Party

Plaintiff argues that he is a “prevailing party” under 42 U.S.C. § 1988. Pl.’s Mem. P. & A. in Support of Mot. Att’y Fees, Expert Fees, Expenses and Costs, ECF No. 276 [hereinafter Pl.’s Mem.]. The District does not challenge this contention and thus concedes the issue. Moreover, plaintiff appears to meet the statutory requirement given that the Court granted summary judgment for plaintiff on his § 1983 claim.

B. Laffey Rates May Be Used as Reasonable Hourly Rates

Plaintiff claims compensation for the time spent by at least three attorneys, lead counsel Harvey Williams, co-counsel Jeffrey P. Matthews, and associate attorney Gunella Lilly, as well as four paralegals.[3] He seeks application of the Laffey rates, as updated in the USAO Matrix. See Pl.’s Mem. 9; see also http://www.justice.gov/usao/dc/divisions/civilLaffeyMatrix2003-2013.pdf. To account for a delay in payment, he also seeks application of the current Laffey rates for all time expended, including time expended in the early 2000s.

The District does not contest the application of the Laffey rates and therefore has conceded that they apply. The District also does not appear to contest the application of current rates to account for the delay in payment. The Supreme Court has expressly stated that “an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of” § 1988. Jenkins, 491 U.S. at 284. Thus, the Court will utilize current Laffey rates in the calculation of an appropriate fee.

1. Attorney Harvey Williams’s Rates

Mr. Williams began to devote compensable time to this case in mid-2000, when he met with David Harvey regarding the possibility of filing suit. At that time, Mr. Williams had approximately seventeen years of post-law school experience. See Williams Decl. 7 (stating that Mr. Williams graduated from law school in 1980, received a Masters in Law and Taxation in 1981, but began his post-law school legal experience in 1983); see also Pl.’s Mot., Ex. A-1 (Attorney Time), at 2 (listing the first compensable time entry as June 16, 2000). For 2012 to 2013, the Laffey matrix suggests $445 per hour as an appropriate rate for attorneys with eleven to nineteen years of experience. Mr. Williams devoted approximately 104.45 hours during the years 2000, 2001 and 2002 when he had less than 20 years of experience and will be compensated at $445 per hour for that time. As a result, his compensation will be reduced by $6267 to account for this difference in the hourly rate. From 2003 onward, Mr. Williams had over 20 years experience and will be compensated at $505 per hour.

2. Attorney Jeffrey P. Matthews’s Rates

Mr. Matthews was brought into this matter in early 2012. Pl.’s Mot., Ex. B (Decl. of Jeffrey P. Matthews), at 2 [hereinafter Matthews Decl.]. He graduated from law school in 1982 and thus had over twenty years of post-law school experience at all times during the case. Id. at 1. The appropriate Laffey rate for Mr. Matthews’s work is $505 per hour.

3. Attorney Gunella Lilly’s Rates

Associate attorney Gunella Lilly completed work between July 2010 and March 2012. Pl.’s Mot., Ex. A-2 (Lilly Attorney Time), at 1. She had between zero and three years experience when completing these tasks. Pl.’s Mot., Ex. A, Decl. of Harvey S. Williams, at 8 (noting that Lilly graduated from law school in 2009). The appropriate Laffey rate for Lilly’s work is thus $245 per hour.

4. Paralegals’ Rates

Three to four paralegals were used throughout this litigation: Luca T. Romano, Melanie LaMotta, Kelly Padgett, and Ben Turner. Williams Decl. 9. The appropriate Laffey rate for paralegals is $145.

The rates for each attorney and the paralegals are thus:

Years Experience

Laffey Rate

Attorney Harvey Williams

17–19 (2000–2002)

$445

20 (2003–Present) $505

Attorney Jeffrey Matthews

20

$505

Attorney Gunella Lilly

0–4

$245

Paralegals (Luca T. Romano, Melanie LaMotta, Kelly Padgett, Ben Turner)

N/A

$145

The Court now turns to particular concerns the District raises about plaintiff’s fee request.

C. Specific Objections to Time Expended

The District raises a number of specific objections to the time expended by counsel. These fall into several categories. First, the District argues that certain tasks are not compensable at all, either under § 1988 or because of the nature of this case and the rates and time requested. This category includes time spent establishing the estate of Mr. Suggs; time engaging in public relations activities; and time allegedly devoted “solely” to claims against the Symbral defendants. Next, the District complains that the time and/or hourly rates sought for certain tasks are excessive. This category includes: time plaintiff’s lead counsel spent acquiring expertise subsumed in his maximum hourly Laffey rate; time devoted to the claims against both the District and the Symbral defendants; travel time; mediation preparation time; time devoted to a mock trial or focus group; and time researching related litigation and municipal liability. Finally, the District lodges miscellaneous objections. These include: that many time entries are inadequately detailed; that plaintiff is not entitled to interest on the fee award; that expert fees are not compensable; and that the remainder of plaintiff’s costs and expenses are unsupported by any documentation.

The Court addresses these objections below in the order raised by the District.

Before turning to those objections however, the Court notes that, given that the District was able to scan and electronically search plaintiff’s time records, the District’s discovery request for an electronic version of the hours is now moot. Additionally, the Court rejects the District’s suggestion that discovery of the amount of attorney’s fees paid by Symbral as part of a settlement “would provide highly probative information regarding what Plaintiff and counsel consider reasonable fees in this case.” Def.’s Mot. Conduct Limited Disc. 7, ECF No. 281. The Court determines what is reasonable under § 1988 and need not consider what amount plaintiff considered reasonable as part of a settlement.

1.Time Spent on the Estate of Mr. Suggs

This case fundamentally dealt with the precipitous decline in health and ultimate death of Curtis Suggs, a severely disabled man committed to the custody of the District of Columbia. See Harvey, 841 F.Supp.2d at 170–73. Plaintiff seeks reimbursement for time spent establishing the estate of Mr. Suggs.

The District argues that this time is not compensable because § 1988 only provides for attorney’s fees in a civil rights action. Def.’s Opp’n 11. The District cites Webb v. County Board of Education, in which the Supreme Court affirmed a denial of fees for time spent pursuing optional administrative remedies challenging the termination of employment of a public school teacher. 471 U.S. 234 (1985). These remedies were not required to be exhausted prior to pursuit of the § 1983 claim and the Court noted that the proceedings were “simply . . . not any part of the proceedings to enforce §1983 . . . .” Id. at 241. By contrast, attorney’s fees under a similar statute were allowed for pursuit of an administrative remedy required by statute to be exhausted before commencement of the federal action. See Id . at 240 (discussing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)).

Here, plaintiff argues that time spent establishing the estate of Mr. Suggs is recoverable because the § 1983 survival claim could not be filed until the estate was established. “[E]stablishment of the estate was the necessary predicate of filing and litigating the § 1983 claim, ” plaintiff avers, thus “the time counsel spent establishing the estate was time ‘reasonably expended on the litigation.’” Pl.’s Reply (quoting Hensley, 461 U.S. at 433).

The Court agrees with plaintiff. After Mr. Suggs’s death, any § 1983 cause of action which had accrued to him survived in favor of his legal representative, namely, his estate.[4] The costs of establishing that estate were necessary to the pursuit of the § 1983 action and were thus “reasonably expended on the litigation.” The Court will award attorneys’ fees for the establishment of the estate. However, as with all other tasks, work on the estate done by Mr. Williams prior to 2003 will be compensated at $445 per hour rather than $505 per hour. 2.Time Spent Acquiring Expertise The District argues that plaintiff should not be compensated for $17, 397.25 in attorneys’ fees for 34.45 hours spent consulting with other attorneys and various experts. Def.’s Opp’n 12.

Specifically, the District argues that this would compensate plaintiff for time his counsel spent acquiring expertise that is “subsumed in his maximum hourly Laffey rate.” Id. In the alternative, the District argues that the time spent “acquiring legal and other expertise necessary” to litigate this case should be compensated at an hourly rate significantly reduced from the maximum Laffey rate.” Id. The 34.45 hours identified by the District include nearly eleven hours spent talking with other attorneys who took part in the Evans class litigation, [5] about six hours talking with a physician regarding medical records and an autopsy, five hours on legal research related to § 1983 actions and other issues, and several hours on probate matters.

The District cites Heller v. District of Columbia for the proposition that plaintiff’s counsel should not be compensated at maximum Laffey rates “for time spent developing [his] expertise.” Id. at 12–13 (citing Heller, 832 F.Supp.2d 32, 61 (D.D.C. 2011)). Plaintiff responds that Heller dealt with legal fees that an attorney paid to outside counsel and claimed as an expense. Here, ...


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