Opinion
No. CV-00-976-HU
November 7, 2001
Bruce J. Brothers, Brothers Ash, Bend, Oregon; Attorney for Plaintiff.
Robert S. Wagner, David C. Lewis, Miller Wagner LLP, Portland, Oregon; Attorneys for Defendants.
OPINION ORDER
Plaintiff Pam Faubion brought this 42 U.S.C. § 1983 action against defendants City of Prineville and police officer Timothy Durheim. Plaintiff alleged that in July 1999, Durheim falsely arrested her and used excessive force against her during the arrest. As a result, she brought claims under the Fourth Amendment against Durheim as well as against the City for the City's alleged failure to properly train Durheim. Additionally, plaintiff brought supplemental state claims of assault and battery, intentional infliction of emotional distress, and negligence against both defendants.
On June 20, 2001, pursuant to Federal Rule of Civil Procedure 68, defendants made an offer of judgment to plaintiff in the amount of $25,000, plus costs and reasonable attorney's incurred to the date of the offer in an amount to be determined by the court or by mutual agreement. Plaintiff accepted the offer. Judgment in plaintiff's favor was entered on August 24, 2001.
The parties were unable to mutually agree on the attorney's fees. As a result, plaintiff now moves for an award of attorney's fees and costs. The total sought by plaintiff is $27,755.16. I grant the motion in part and deny it in part and award plaintiff $17,752.46 in attorney's fees and costs.
DISCUSSION
I. General Attorney's Fees Standards In Section 1983 Cases
Plaintiff moves for attorney's fees pursuant to 42 U.S.C. § 1988 which entitles the prevailing party to "a reasonable attorney's fee as part of the costs[.]" 42 U.S.C. § 1988(b). In determining a reasonable attorney's fee under section 1988, the "first step is to calculate a `lodestar' by multiplying the number of hours . . . the prevailing party reasonably expended on the litigation by a reasonable hourly rate." McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In calculating the lodestar amount, the district court should take into account any relevant factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Id.
The 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. McGrath, 67 F.3d at 252 n. 4.
The fee petition applicant carries the burden of showing that the claimed rates and hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984). There is a strong presumption that the lodestar figure is a reasonable fee. Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The presumptively reasonable lodestar figure may be adjusted downward or upward only on the basis of those factors not already subsumed in the lodestar calculation. Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996), amended on other grounds, 108 F.3d 981 (9th Cir. 1997). "The subsumed factors are: the novelty and complexity of the issues, the special skill and experience of counsel, the quality of the representation, the results obtained and the superior performance of counsel." D'Emanuele v. Montgomery Ward Co., 904 F.2d 1379, 1383 (9th Cir. 1990) (citations omitted).
Finally, even absent specific objections by the opposing party, the court has an independent duty to scrutinize a fee request to determine its reasonableness. Gates, 987 F.2d at 1401; see also Poole v. Textron, Inc., 192 F.R.D. 494, 508 (D.Md. 2000) (because the award must be reasonable, it is incumbent on the district court to subject the request to an independent review to "insure that the time expended . . . was not excessive to the task and [to consider] the hourly rate charged in light of fees charged in the legal community for services of like kind and quality.").
II. Reasonable Number of Hours
Plaintiff seeks compensation for 157.7 hours spent on this case. This represents the total hours spent by plaintiff's lead counsel Bruce Brothers, two other attorneys, and two paralegals. Defendants make one objection to the number of hours requested by plaintiff. I address that argument first and then will address other issues as explained below.
Defendants argue that plaintiff is not entitled to any time after June 20, 2001, when she accepted the offer of judgment which limited her right to attorney's fees to fees incurred to that date. I agree with defendants. The offer of judgment was clear and was expressly accepted, with no objection, by plaintiff. Both the offer and the acceptance were docketed in this Court on July 3, 2001. Thus, any hours expended by plaintiff's counsel after June 20, 2001, are not properly recoverable in this case. These hours will be deducted from the request.
Next, to determine the reasonableness of time expended, the documents in support of the fee petition must clearly show how plaintiff's counsel spent his or her time. To that end, this Court expects counsel to fully explain the particular task on which counsel spent time. Without such an explanation, the court is at a loss to determine the reasonableness of the task. Here, there are several entries in plaintiff's fee petition which lack a sufficient explanation and thus, are deducted from the fee request. They are:
Date Attorney Hours Task Reason Amount Disallowed Disallowed
2/23/00 Gorman 1.2 Legal Fails to 1.2 Research specify topic of research
3/1/00 Gorman 1.9 Preparation Fails to 0.9 of specify Complaint/ topic of Legal research Research
5/3/00 Brothers 1.5 Conference Fails to 1.5 with specify client topic of and conference Sandy
11/28/00 Gorman 0.8 Legal Fails to 0.8 research specify topic of research
11/30/00 Gorman 2.0 Legal Fails to 1.0 research; specify draft topic of research letter to defense attorney
12/1/00 Gorman 0.8 Legal Fails to 0.8 research specify topic
Plaintiff fails to delineate how much of the 1.9 hours spent on March 1, 2000, by Gorman was on preparing the Complaint and how much was on legal research. I conclude that without additional evidence, it is reasonable to assume that the time was evenly divided. Thus, rounding up to the nearest tenth, I award plaintiff 1.0 hours for one-half of the 1.9 hours spent by Gorman on that date and I deduct 0.9 hours for the failure to specify the nature of the research.
See footnote number two. Giving plaintiff the benefit of the doubt on this entry and assuming that the letter to defense counsel was long and related to a complex issue, I deduct one-half of the total time, or 1.0 hours, for the legal research on an unknown topic.
For the reasons explained, these hours will be deducted.
Next, it appears that plaintiff's counsel spent 16.7 hours in preparing the motion to compel that was filed on February 12, 2001. The following entries are at issue:
Date Attorney Time Task
1/9/01 Wilson 1.0 Legal research regarding federal disclosure rules; draft memo
1/11/01 Gorman 0.9 Legal research regarding procedural requirements for federal motion to compel
1/12/01 Gorman 1.5 Legal research; draft motion to compel production
1/17/01 Gorman 0.2 Conference w/B. Brothers
1/22/01 Gorman 0.8 Work on motion
1/23/01 Gorman 1.5 Legal research regarding Third Circuit decisions
1/23/01 Gorman 0.9 Work on motion
1/25/01 Gorman 1.9 Legal research regarding motion issues
1/26/01 Gorman 0.9 Further legal research on Oregon law regarding state privilege issue
1/29/01 Gorman 0.4 Conference w/T. Wilson regarding discovery issue
2/1/01 Gorman 0.8 Work on discovery motion
2/2/01 Gorman 0.9 Work on discovery motion
2/6/01 Gorman 2.0 Work on discovery motion
2/8/01 Brothers 0.5 Correspondence to Clerk enclosing motion to compel; preparation of motion to compel; finalize motion to compel
2/8/01 Gorman 2.5 Finalize discovery motion; draft affidavit
I conclude that 16.7 hours is an unreasonable amount of time to have spent on the motion and that 10 hours is the maximum allowable reasonable amount of time. I award the time first to the highest paid attorney, in this case Brothers, and then in order to the next highest paid attorney. The following above-referenced entries are allowed: the 0.5 hours spent by Brothers on February 8, 2001, and the following hours spent by Gorman: 0.9 on January 11, 2001; 1.5 on January 12, 2001; 0.2 on January 17, 2001; 0.8 on January 22, 2001; 1.5 on January 23, 2001; 0.9 on January 23, 2001; 1.9 on January 25, 2001; 0.9 on January 26, 2001; 0.4 on January 29, 2001; and 0.5 of the 0.8 on February 1, 2001. The following hours are disallowed: 1.0 by Wilson on January 9, 2001; 0.3 of the 0.8 hours by Gorman on February 1, 2001; 0.9 by Gorman on February 2, 2001; 2.0 by Gorman on February 6, 2001; and 2.5 by Gorman on February 8, 2001.
Many of these entries failed to specify the particular task at issue which, as previously discussed, is a reason for disallowance. However, a careful reading of the fee entries indicates, giving plaintiff the benefit of the doubt, that these entries were indeed part of the motion to compel. In the future, plaintiff's counsel would be better served by specifically delineating the particular task at hand. Additionally, I give plaintiff the benefit of the doubt as to a February 5, 2001 entry by Wilson for 1.2 hours. There, he simply states that he spent his time on "[l]egal research regarding federal case law." Exh. 4 to Pltf's Motion at p. 10. I assume, from the context of the surrounding entries, that Wilson's time was spent on research he and Brothers appeared to be conducting regarding oral interceptions. Again, in the future, plaintiff's counsel should be more specific in its time entries. Failure to do so may result in disallowance of the time.
Finally, it appears that plaintiff's counsel then spent approximately 8.5 hours in anticipation of argument on the motion to compel. The following entries are at issue:
Date Attorney Time Task
2/20/01 Wilson 2.5 Legal Research, case law
2/22/01 Wilson 0.3 Read federal cases
2/22/01 Gorman 1.3 Find federal cases at library
2/23/01 Wilson 0.5 Review federal cases
2/26/01 Wilson 3.5 Draft memo; shepardize cases; read federal cases
2/27/01 Wilson 0.3 Addition to memo
3/6/01 Wilson 0.1 Proofread and finalize memo
Although it is unclear from these time entries exactly what topic Wilson was working on, my recollection of the case is that after the motion to compel was filed in February, defendants initially were going to oppose the motion and it is likely that plaintiff's counsel was preparing for argument on the motion. As it turns out, the parties resolved their dispute and plaintiff formally withdrew her motion in early April. In the future, plaintiff's counsel should specify the subject of the research and the topic of any memoranda. Because defendants have no objection and because a logical assumption from the time records is that the time spent was connected to the motion to compel, it is a recoverable task on which to have spent time.
Nonetheless, I conclude that 8.5 hours is an unreasonable amount of time to have expended in preparation for argument on the motion. I conclude that a maximum of 4 hours is reasonable. Thus, I first award Gorman the 1.3 hours he expended on February 22, 2001, and then award the following hours to Wilson: 2.5 hours on February 20, 2001, and 0.2 of the 0.3 hours on February 22, 2001. As a result, I disallow the following hours recorded by Wilson: 0.1 of the 0.3 on February 22, 2001; 0.5 hours on February 23, 2001; 3.5 hours on February 26, 2001; 0.3 hours on February 27, 2001; and 0.1 hours on March 6, 2001.
I conclude that the remaining requested hours were reasonably expended. Although the hours are more than one might see in a case which had no dispositive motions and was settled short of trial, given the nature of the case — a civil rights action against a police officer and a municipality, and given that a motion to compel was filed, plus the fact that defendants threatened to counterclaim against plaintiff for her alleged unlawful tape recording of a conversation involving the police chief, I conclude that all other hours were reasonably incurred.
III. Reasonable Hourly Rate
In determining the reasonable hourly rate, the court must look at the "prevailing market rates in the relevant community." Blum, 465 U.S. at 895. In a fee award under 42 U.S.C. § 1988, the reasonable hourly rate is properly determined by the prevailing market rate in the forum in which the district court sits. Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The court determines what a lawyer of comparable skill, experience, and reputation could command in the relevant community. Blum, 465 U.S. at 895; see also Robins v. Scholastic Book Fairs, 928 F. Supp. 1027, 1333 (D.Or. 1996) ("In setting a reasonable billing rate, the court must consider the prevailing market rates in the relevant community and determine what a lawyer of comparable skill, experience, and reputation could command in the relevant community.") (internal quotation omitted), aff'd, 116 F.3d 485 (9th Cir. 1997). The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation. Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987).
Plaintiff seeks the following hourly rates: $225/hour for Brothers, $175/hour for attorneys Larry Gorman and Todd Wilson, and $85 per hour for paralegals Julie Schechtel and Roxanne Holm.
Defendants argue that plaintiff's request is unreasonable because the total fee request, and notably the requested hourly rates, is much higher than plaintiff allegedly represented to defense counsel during settlement negotiations.
Defendants state that in August 2000, they tendered their first Rule 68 offer of judgment and, although it was rejected, plaintiff's counsel represented to defendants' counsel that his attorney's fees as of August 2000 were approximately $3,500. In the few days before the June 20, 2001 offer of judgment which was accepted, defendants' counsel states that plaintiff's counsel represented that the attorney's fees incurred to date were "ballpark $7,500." Affid. of David Lewis at ¶ 3. Then, however, after accepting the offer of judgment, plaintiff sought attorney's fees of $19,204. And now, defendants note, plaintiff seeks a higher hourly rate for each attorney and paralegal and a total request of $27,755.16. Defendants argue that plaintiff's request, at almost three and one-half times plaintiff's "ballpark" figure, is patently unreasonable.
I reject defendants' argument that simply because plaintiff represented a different "ballpark" figure during settlement discussions mandates a conclusion that the fee request, seeking substantially more fees than represented, makes the higher fee request "patently unreasonable." The reasonableness of the fee request is determined by the court according to the law as explained in this Opinion.
In determining a reasonable hourly fee, the relevant Kerr factors include the special skill and experience of counsel, the quality of the representation, and the superior performance of counsel. The contingent nature of the representation is not a factor to be considered by the court, either in setting a reasonable hourly rate, or in enhancing the fee award after calculation of the lodestar. See City of Burlington v. Dague, 505 U.S. 557 (1992) (contingency nature of a fee cannot be considered to enhance fee award after lodestar calculation); Davis v. City County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992) (contingency not properly considered when calculating hourly rate), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993).
Brothers seeks a fee award of $225 per hour. He indicates that he has practiced law for more than thirty years in California and Oregon, is AV rated by Martindale Hubbel, and has secured verdicts in excess of $2,000,000. Affid. of Bruce Brothers at ¶ 9. He is serving his second term on the Council on Court Procedures and in the past has served on the Board of Governors of the Oregon Trial Lawyers Association. Id. He has successfully litigated cases in the Oregon Supreme Court. Id.
Brothers submits the affidavit of Elden Rosenthal who states that he has handled a number of section 1983 cases and is aware of a number of cases handled by other attorneys throughout Oregon in which attorney's fees were awarded in federal court. Affid. of Elden Rosenthal at p. 1. He states that in his experience, the average fee is from $200 to $250 per hour. Id. He opines that this is a reasonable hourly fee for litigating in federal court. Id. He further states that he has known Brothers for more than ten years and is familiar with his reputation, ability, and experience, and that in his opinion, $225 is a reasonable hourly rate for Brothers to charge for a case of this kind. Id. at p. 2.
Rosenthal's affidavit is insufficient evidence of the prevailing market rate. In a 1998 case, the plaintiff submitted affidavits from two other attorneys with experience similar to the plaintiff's counsel. Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998). The two attorneys stated that $200 was a reasonable hourly rate for the services of the plaintiff's counsel. Id. The Ninth Circuit held that this evidence did not establish the prevailing market rate because the affidavits merely attested that $200 was a reasonable hourly rate for the services of plaintiff's counsel. Id.
The same situation is apparent here. As noted, Rosenthal states that in his experience, the average fee is from $200 to $250 per hour. But, he cites to no awards from this court to substantiate that statement. He also fails to indicate that he or other practitioners with the experience and reputation similar to plaintiff's counsel, charge an hourly fee in that range. Thus, stripped of its unsupported statement of an average fee, his affidavit contains nothing more than the type of evidence rejected in Widrig — a statement as to the reasonableness of plaintiff's counsel's fee, not evidence of the prevailing market rate.
Without such evidence in the record, I rely on the Oregon State Bar's 1998 Economic Survey. For attorneys with plaintiff's counsel's years of experience, the average hourly rate in the Portland metropolitan area was $181 and in Eastern Oregon where Brothers practices it was $118. Adjusting for three-percent of inflation per year would make the average Portland 1999 rate $186.43 per hour, and the average Eastern Oregon 1999 rate $121.54 per hour. For 2000, the average inflation-adjusted rates would be $192.02 per hour for Portland attorneys and $125.18 per hour for Eastern Oregon attorneys. For 2001, the average inflation-adjusted rates would be $197.78 per hour for Portland attorneys and $128.93 per hour for Eastern Oregon attorneys.
The Economic Survey does not have a separate category for Central Oregon. Having practiced in Central Oregon for more than ten years, I am well aware that the rates there are generally higher than those reported in the Economic Survey for Eastern Oregon, and are closer to those seen in the Portland area.
These are in line with what Brothers customarily charges. In his affidavit he explains that in 2000, he charged $185 per hour and in 2001, $190 per hour. He seeks a higher hourly rate in this case because his ordinary hourly rate is reserved for those cases where he has "a retainer in hand[.]" Brothers Affid. at ¶ 5.
While counsel's customary rate is not always controlling, Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir. 1987), it is an indicator of the prevailing market rate. See Ohio-Sealy Mattress Manuf. Co. v. Sealy, Inc., 776 F.2d 646, 661 (7th Cir. 1985) (when a plaintiff pays an attorney in private practice on an hourly basis, the hourly rate is clearly relevant in determining the prevailing market rate for the attorney's services.). Here, the reason attributed by Brothers to the difference between his ordinary hourly rate and the rate he seeks in this case, although phrased in terms of a lack of retainer, is more accurately described as compensation for the contingent nature of the case, a factor, as noted above, I am not allowed to consider. Furthermore, while this case required a high degree of skill to prepare and negotiate, there is no indication that it required anything different than Brothers's other cases, for which he ordinarily charges $190/hour if there is no contingency.
Based on the Economic Survey, and on the fact that no evidence in the record justifies a different prevailing market rate, I conclude that a reasonable hourly fee for Brothers is $185 per hour for hours expended in 1999, $190 per hour for hours expended in 2000, and $195 per hour for hours expended in 2001. Although these rates are slightly lower than those for Portland attorneys, they are significantly higher than those for Eastern Oregon attorneys. I conclude that the rate approximating that of Portland attorneys is warranted here when the case was filed and litigated in Portland.
Plaintiff seeks $175/hour for the other two attorneys who assisted in the case. In his affidavit, Brothers represents that Gorman has been a member of the Oregon State Bar since 1988, was a law clerk for the trial courts in Multnomah County, and has been practicing in Bend, Oregon for seven years. Brothers Affid. at ¶ 9. He also states that Gorman's practice is primarily limited to research and writing and he has successfully authored a number of appellate court briefs. Id.
There is no evidence as to what the prevailing market rates are for attorneys with similar experience or reputations. Unlike Brothers, Gorman provides no information as to what his customary rate is for other cases or for non-continency cases. The 1998 Economic Survey shows that Portland attorneys with ten to twelve years of experience averaged $145 per hour and Eastern Oregon attorneys with similar years' of experience averaged $130 per hour. The Economic Survey also shows that those with thirteen to fifteen years of experience averaged $155 per hour in Portland and $126 per hour in Eastern Oregon. Adjusting for inflation, Portland attorneys with ten to twelve years' of experience would average $149.35 per hour in 1999, $153.83 per hour in 2000, and $158.44 per hour in 2001, and Eastern Oregon attorneys with that level of experience would average $133.90 per hour in 1999, $137.91 per hour in 2000, $142.04 per hour in 2001. For those with thirteen to fifteen years of experience, the inflation-adjusted rates for Portland attorneys would be $159.65 per hour in 1999, $164.43 per hour in 2000, and $169.36 per hour in 2001. Eastern Oregon attorneys with that level of experience would average $129.78 per hour in 1999, $133.67 per hour in 2000, and $137.68 in 2001.
For the reasons explained above in connection with Brothers's hourly rate, it is reasonable to award Gorman close to the Portland rate, even though the rate for attorneys practicing in Eastern Oregon is much lower. Thus, I conclude that a reasonable hourly rate for Gorman is $155 per hour for 1999, $160 per hour for 2000, and $165 per hour for 2001.
As to Wilson, Brothers states that Wilson has been a member of the Oregon State Bar since 1997 and has been practicing law in Bend for two years. Id. He was a law clerk for a leading criminal defense attorney and practiced with a public defender office until January 2001, when he began to practice with Brothers. Id. There is no other information in the record regarding the prevailing market rate for someone with Wilson's experience and reputation. And, similar to Gorman, there is no information regarding Wilson's rate in other cases or in non-contingency cases.
The 1998 Economic Survey shows that Portland attorneys with four to six years of experience averaged $120 per hour in Portland and $109 per hour in Eastern Oregon. For those with four to six years of experience, the inflation-adjusted rates would be $131.11 per hour for Portland attorneys in 2001, and Eastern Oregon attorneys with that level of experience would average $119.09 in 2001. I conclude that a reasonable hourly rate for Wilson is $125 for 2001.
Because Wilson performed no work before 2001, it is unnecessary to recite the adjusted rates for 1999 and 2000.
Finally, plaintiff seeks $85 per hour for work performed by paralegals. Although entitled to be compensated for true paralegal work, plaintiff submits no evidence regarding the experience of the paralegals or what similarly experienced paralegals charge in either Portland or Bend. The only information on which to gauge the reasonableness of an hourly rate for a paralegal is the 1998 Economic Survey. Given that in 1998, Portland attorneys with one to three years of experience averaged $104/hour, an hourly rate of more than $70 is unreasonable. Otherwise, the differences in education and responsibility between new attorneys and paralegals would be blurred. I conclude that $65 per hour is a reasonable rate for 1999 and that $70 per hour is a reasonable rate for the paralegal time in both 2000 and 2001.
IV. Calculation of the Lodestar
Based on the deductions explained in Section II, and the reasonable hourly rates as determined in Section III, I calculate the lodestar as follows:
Atty/Paralegal Year Hours Rate Total
Brothers 1999 4.3 $185/hour $795.50
Brothers 2000 10.4 $190/hour $1,976
Brothers 2001 24.1 $195/hour $4,699.50
Gorman 1999 0.8 $155/hour $124
Gorman 2000 18.8 $160/hour $3,008
Gorman 2001 10.8 $165/hour $1,782
Wilson 2001 9.4 $125/hour $1,175
Paralegal 1999 11.1 $65/hour $721.50
Paralegal 2000 26.7 $70/hour $1,869
Paralegal 2001 3.6 $70/hour $252
Adding the totals produces a lodestar of $16,402.50.
V. Adjustments to the Lodestar
Once the lodestar is determined based on calculating the reasonable number of hours by the reasonable hourly rate, it is presumed to be a reasonable fee award. See, e.g., Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir. 2001) ("in most cases, the lodestar figure is presumptively a reasonable fee award[.]"); Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000) (lodestar figure is presumptively reasonable but may, in appropriate cases, be adjusted based on factors not subsumed in the lodestar); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (lodestar amount is presumptively the reasonable fee amount, and thus a multiplier may be used to adjust the lodestar upward or downward "only in rare and exceptional cases, supported by specific evidence on the record" and detailed findings that the lodestar amount is unreasonably low or high).
Although presumptively reasonable, the lodestar figure may be adjusted by factors not subsumed in the lodestar calculation. Gracie, 217 F.3d at 1070. The factors not subsumed are: (1) the preclusion of other employment by the attorney due to acceptance of the case: (2) time limitations imposed by the client or the circumstances; (3) the undesirability of the case; (4) the nature and length of the professional relationship with the client; and (5) awards in similar cases. See Morales, 96 F.3d at 364 n. 9 (listing subsumed factors).
Brothers indicates that he can identify no prospective clients which he turned down by reason of accepting this case. He states, however, that it is unlikely that members of the Prineville Police Department will retain him in the future and that he is "always very careful when driving through the City of Prineville." Brothers Affid. at ¶ 4. Speculation about future clientele is not a basis for adjusting the lodestar. Neither is the impact a case has on the attorney's driving habits.
Next, Brothers concedes there were no specific time limitations, but notes that the ongoing litigation was particularly stressful to his client and thus, he made every effort to move the case to conclusion as soon as possible. Because moving a case to conclusion in a timely manner is the desire of all clients and the responsibility of every lawyer in all cases, this provides no basis for adjustment of the lodestar.
Brothers indicates that the case was undesirable because plaintiff was intoxicated earlier in the evening and was involved with a disagreement with her boyfriend at the time of her arrest. Nonetheless, many section 1983 plaintiffs carry with them similar "undesirable" facts. Enhancement based on this factor should be used only for those cases in which the undesirability is more significant than seen here.
Brothers had no relationship with his client prior to his representation of her in this case. Thus, adjustment based on this factor is unwarranted.
Finally, Brothers cites to a 1996 Ninth Circuit case and a 1986 Supreme Court case in support of his argument that awards in similar cases justify an enhancement. Morales, 96 F.3d 359; City of Riverside v. Rivera, 477 U.S. 561 (1986). He does not, however, demonstrate how these cases relate to similar fee awards in this district for a case resolved with no dispositive motions, short of trial. Thus, there is no basis for an enhancement as a result of awards in similar cases based on the record submitted by plaintiff.
VI. Costs
Plaintiff seeks $1,718.66 in costs as follows: $150 for filing fee; $18.50 for "hearing fee"; $65 for service fees; $237.50 for medical records; $84.30 for photocopies; $350.20 for investigation; $788.50 for depositions; $4.84 for long distance telephone; and $19.82 for postage. Exh. 3 to Pltf's Petition. Brothers attests that the costs were actually and necessarily incurred by plaintiff. Id. Defendants make no objection to the requested costs.
Plaintiff fails to differentiate between those costs allowed under 28 U.S.C. § 1920 and those awarded as part of a section 1988 attorney's fee petition. Under 28 U.S.C. § 1920, the court may tax as costs any of the following: (1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Additionally, under section 1988, out-of-pocket expenses normally incurred by an attorney and charged to the client are recoverable costs. See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir. 1986) ("Even though not normally taxable as costs, out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client are recoverable as attorney's fees under section 1988."), amended on other grounds, 808 F.2d 1373, (9th Cir. 1987); see also Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (same).
Plaintiff filed a separate cost bill (docket #18) but asks for the identical costs, both those under section 1920 and those awardable as part of the section 1988 fees, in this fee petition. I deny the separately filed petition as moot and consider all requested costs as part of this motion.
A. Section 1920 Costs
Plaintiff's request for $150 for the filing fee, $65 for service fees, $237.50 for medical records, $84.30 in photocopies, and $788.50 in deposition expenses, fall under allowable section 1920 costs. 28 U.S.C. § 1920(1) (filing fee; service fees); 28 U.S.C. § 1920(3), (4) (medical records, photocopies); 28 U.S.C. § 1920(2) (depositions); Evanow v. M/V Neptune, 163 F.3d 1108, 1118 (9th Cir. 1998) ("Deposition costs are taxable if they are reasonably necessary for trial."); Murdock v. Stout, 54 F.3d 1437, 14444 (9th Cir. 1995) (under section 1920(3) and (4), expenses for some printing and photocopying are recoverable costs); Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 139 (8th Cir. 1987) (allowing recovery for cost of obtaining medical records).
Because defendants make no objections to these costs, I assume defendants know who was deposed and concur that the depositions were necessary for trial. While in the face of objection I would expect plaintiff to provide documentation of each expense, I need not do so here when there is no objection and the costs are not unreasonable.
B. Section 1988
Those expenses not falling within section 1920's ambit are the $18.50 hearing fee, the $350.20 investigation fee, the $4.84 long distance fee, and the $19.82 postage fee. These expenses can come under the reach of section 1988's allowable expenses if they are reasonably incurred as part of the litigation. Blum, 465 U.S. at 888 (requiring compensable section 1988 fees to have been "reasonably expended on the litigation").
Various courts have upheld similar expenses under section 1988. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (postage expenses may be recovered under § 1988); Harris, 24 F.3d at 19-20 (reasonable expenses, including postage, may be taxable under section 1988); West Virginia Univ. Hosps, Inc. v. Casey, 898 F.2d 357, 366 (3d Cir. 1990) (long distance charges allowed under section 1988); Friedrich v. City of Chicago, 888 F.2d 511, 513 (7th Cir. 1989) (investigation expenses compensable under section 1988), vacated on other grounds, 499 U.S. 933 (1991).
While plaintiff has not supported these requests with any documentation, plaintiff's counsel has attested to the fact that the expenses were necessarily incurred by plaintiff in litigating this case. Because there is no objection by defendants, I accept that representation as adequate to support an award for the long distance and postage fees. It is reasonable to assume that such charges are normally incurred in litigation.
In contrast, however, there is no explanation as to the $18.50 hearing fee. No reasonable assumption can be made from the nature of the case or from reading the time entries submitted by plaintiff, as to the nature of this fee. Thus, unless plaintiff can produce, within ten days of the date of this Opinion and Order, documentation as to the nature of this fee and how it is reasonably related to this litigation, it is disallowed.
Similarly, while investigation fees are not uncommon in certain litigation, I cannot assume, as I can with postage and long distance fees, that all of the investigation fees are reasonably related to the litigation. Plaintiff has ten days from the date of this Opinion and Order to produce documentation showing the investigation charges incurred and the nature of the work performed. If no production, or inadequate production, is made, the expense will be disallowed.
I award plaintiff costs of $1,349.96.
CONCLUSION
Plaintiff's motion for attorney's fees (#20) is granted in part and denied in part. Plaintiff is awarded $17,752.46 in attorney's fees and costs. Plaintiff's separately filed cost bill (#18) is denied as moot.
IT IS SO ORDERED.