Opinion
Civ. 21-00202 DKW-RT
08-01-2023
DONALD S. GUZMAN, Plaintiff, v. COUNTY OF MAUI, MAUI COUNTY COUNCIL, MAYOR MICHAEL VICTORINO, IN HIS OFFICIAL CAPACITY; Defendants.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, NONTAXABLE EXPENSES, AND POST JUDGMENT INTEREST
ROM A. TRADER, UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff Donald S. Guzman's (“Plaintiff”) Motion for Attorneys' Fees, Nontaxable Expenses, and Post Judgment Interest (“Fee Motion”), filed on February 10, 2023. ECF No. 142. Plaintiff and Defendants Count of Maui, Maui County Council, Mayor Michael Victorino (“Mayor Victorino”), in his official capacity, (collectively “Defendants”) have engaged in the pre-motion meet and confer as required by Rule 54.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“LR” or “Local Rules”). ECF No. 142-2. After working together on disputed issues, the parties arrived at an agreement on the lodestar figure, $119,630.84, and agree that Plaintiff should be awarded expenses in the amount of $136.42. ECF No. 140. However, the parties disagree on whether the lodestar calculation should be reduced based on the factors in Kerr v. Screen Extras Guild, Inc. factors (“Kerr factors”) that have not been subsumed in the lodestar calculation.
In its Order Directing Plaintiff to File a Supplement Addressing Deficiencies in Plaintiff's [Fee Motion], this Court noted that there was an error in the Fee Motion. Plaintiff requests $119,630.64 for work performed, but in the memorandum in support of the Fee Motion, Plaintiff requests $119,630.84. ECF No. 142 at PageID.1515 & ECF No. 142-1 at PageID.1521. Although the Court stated that it would refer to the lower amount, $119,630.64, the Court has made its calculations and determined that $119,630.84 is the correct amount Plaintiff requests in its Fee Motion.
The Court finds this matter suitable for disposition without a hearing pursuant to LR7.1(c). After careful review of the Fee Motion, supporting and opposing memoranda and supplementals, records in this case and relevant legal authority, the Court FINDS and RECOMMENDS that the Fee Motion be GRANTED IN PART and DENIED IN PART. Plaintiff should be awarded $73,924.00 in attorneys' fees, $8,682.72 for work performed in connection with bringing this Fee Motion, and $120.00 in nontaxable expenses. The Court FINDS that Plaintiff is entitled to post-judgment interest and thus, RECOMMENDS that such request be GRANTED.
BACKGROUND
Plaintiff commenced this case on April 23, 2021 alleging three claims for relief: (1) Violation of the Constitutional Right to Privacy, Actionable Pursuant to 42 U.S.C. § 1983 (“First Claim”); (2) Violation of the Constitutional Right to Due Process, Actionable Pursuant to 42 U.S.C. § 1983 (“Second Claim”); and (3) Violation of Haw. Rev. Stat. § 378-2(a)(1)(A) (“Third Claim”). These claims arise from Plaintiff's termination as the Prosecuting Attorney for the County of Maui and was brought in federal court under federal question jurisdiction. ECF No. 1 at PageID.2-6.
On July 26, 2021, approximately three months after Plaintiff filed the Complaint, Defendants filed a Motion for Summary Judgment. ECF No. 13. On October 6, 2021, the district court issued its Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment (“Summary Judgment Order”). ECF No. 26. The Summary Judgment Order granted the Motion for Summary Judgment as to counts one and three of the Complaint, but was denied as to count two. Id. On March 24, 2022, Plaintiff filed a Motion for Partial Summary Judgment on Count II of the Complaint. ECF No. 39. On June 25, 2022, the Court issued its Order Granting Plaintiff's Motion for Partial Summary Judgment, which granted Plaintiff summary judgment on the last remaining claim, count two, the procedural due process claim. ECF No. 56. The only issue remaining for trial was the calculation of damages. ECF No. 57.
Jury trial on the damages issue commenced on November 28, 2022, and a verdict was reached on December 7, 2022. ECF Nos. 112 & 128. The jury found that Plaintiff suffered damages, but that Plaintiff would have been terminated even if Plaintiff had adequate procedural due process. ECF No. 128 at PageID.1390. However, the jury awarded Plaintiff damages of $75,000.00 because it found that the lack of procedural due process caused Plaintiff mental or emotional distress. Id. at PageID.1392. Judgment was entered on December 21, 2022. ECF No. 137.
On January 31, 2023, the parties entered into and filed a Stipulation re Lodestar, Nontaxable Expenses, and Briefing re Fee Motion (“Stipulation”). ECF No. 140. The Stipulation states that the parties “stipulate and agree that the lodestar calculation in this case is $119,630.84” and that Plaintiff should be awarded $136.42 in expenses. Id. at PageID.1440. The Stipulation also states that “the only remaining dispute is whether the lodestar calculation should be reduced based on the Kerr v. Screen Extras Guild, Inc. factors that have not been subsumed in the lodestar calculation.” Id.; Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).
Shortly thereafter, Plaintiff filed the instant Fee Motion on February 10, 2023 in which Plaintiff requested the lodestar figure the parties stipulated to $119,630.84, and argued that this figure should not be reduced based on any of the Kerr factors. However, Plaintiff did not submit timekeeping records for all attorneys.
On February 15, 2023, Defendants filed its Memorandum in Opposition to Plaintiff's [Fee Motion] (“Opposition”). ECF No. 143. In the Opposition, Defendants agree that Plaintiff is indeed the prevailing party in this case and “is entitled to an award of reasonable attorney's fees[.]” ECF No. 143-1 at PageID.1591 & 1599. However, Defendants argue that Plaintiff's success was “scant” and although reductions to the lodestar are rare, the attorneys' fees awarded should “'commensurate with the extent of the [P]laintiff's success.'” Id. at 1591 & 1602 (citing McGinnis v. Kentucky Fried Chicken of California, 51 F.3d 805, 810 (9th Cir. 1994)). Defendants urge this Court to reduce the agreed upon lodestar amount by 40%. ECF No. 143-1 at 1610-1612.
On February 22, 2023, Plaintiff filed a Reply in Support of [its Fee Motion]. ECF No. 144. Plaintiff alleges that the stipulated lodestar amount should not be reduced because the two claims dismissed by the Summary Judgment Order was done early, approximately six months after the Complaint was filed. Id. at PageID.1660. Plaintiff argues that a comparison of the damages awarded versus the amount sought, and the amount of damages awarded in comparison to the attorneys' fees requested should not warrant a downward adjustment in the stipulated lodestar and that such arguments lack merit. Id. at 1662-1665. Plaintiff also argues that reductions should not be made because Plaintiff's litigation was a significant public benefit. Id. at 1665-1670. Plaintiff further argues that the jury's verdict - that Plaintiff's termination was justified - should not be a basis for a reduction. Id. at 1670.
The Court reviewed the parties' submissions but noted that the Fee Motion only submitted attorney Roman Amaguin's timekeeping. The Fee Motion failed to submit any timekeeping records for attorneys Megan Kau and Audrey Stanley. The Court “has its own ‘independent duty to review the submitted itemized log of hours to determine the reasonableness of the hours request in each case.'” HB Prods., Inc. v. Faizan, Civ. No. 19-00487 JMS-KJM, 2022 WL 2529864, at *7 (D. Haw. June 7, 2022), report and recommendation adopted, Civ. No. 19-00487 JMS-KJM, 2022 WL 2340694 (D. Haw. June 29, 2022) (citing Irwin v. Astrue, No. 3:10-CV-545-HZ, 2012 WL 707090, at *1 (D. Or. Mar. 5, 2012) (citing Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001)). The Court thus directed Plaintiff to submit a supplemental memorandum to the Fee Motion “to provide the Court with argument, evidence and timekeeping documentation in support of the parties' agreement that the hours requested and hourly rates-the lodestar amount-are reasonable.” ECF No. 145 at PageID.1683. Plaintiff also requested $4,319.37 in the Fee Motion for the preparation of the Fee Motion, $136.42 in expenses, and an award of post judgment interest. ECF No. 142-1 at PageID.1521.
On June 15, 2023, Plaintiff filed its Supplemental Memorandum in Support of Plaintiff's [Fee Motion] (“Plaintiff's Supplemental”). ECF No. 146. However, Plaintiff did not submit the timekeeping records for the stipulated lodestar amount, but submitted timesheets that included entries that the parties agreed to eliminate. ECF No. 146-4. Further, Plaintiff claimed that the hourly rate of $400.00 was reasonable for attorney Megan Kau, when in the initial Fee Motion, Plaintiff requested the hourly rate of $380.00 - the rate the parties had agreed to in the Stipulation. ECF No. 146 at PageID.1688.
On June 21, 2023, Defendants filed Memorandum in Opposition to [Plaintiff's Supplemental] (“Defendant's Supplemental”). ECF No. 147. Defendants argue that Plaintiff did not follow the Court's instructions for the supplemental and “unilaterally argued for additional fees and higher rates that what [the parties] agreed to.” Id. at 1775. The Court notes that Plaintiff's Supplemental sought fees and rates higher than those requested in the Fee Motion. Defendants argue that Plaintiff “failed to provide all of the information required for the Court to perform its review of the stipulated lodestar.” Id. at 1774. Defendants provided the Court with the final timesheet the parties agreed upon, the January 26, 2023 timesheets, attached as Exhibit H to Defendants' Supplemental. ECF No. 147-9.
The Court relies on Defendant's timekeeping records to determine the reasonableness of the stipulated lodestar amount.
DISCUSSION
I. Entitlement to Attorneys' Fees
Plaintiffs claim they are entitled to attorneys' fees under 42 U.S.C. § 1988 as the prevailing party in their 42 U.S.C. § 1983 litigation against the Defendants. ECF No. 142-1 at PageID.1526. To be considered a “prevailing party,” a party must “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Farrar v. Hobby, 506 U.S. 103, 109 (1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (citation omitted). Under § 1988:
[T]he court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . .42 U.S.C. § 1988(b). In this case, Defendant concedes that Plaintiff is the prevailing party and is entitled to an award of reasonable fees. ECF No. 143-1 at PageID.1591 & 1599. The Court agrees that Plaintiff is the prevailing party in this case and is entitled to attorneys' fees under 42 U.S.C. § 1988.
II. Reasonable Attorneys' Fees
The Court has jurisdiction over this case pursuant to federal question jurisdiction and thus reasonable attorneys' fees are based on the traditional “lodestar” calculation, which multiplies (1) the number of hours reasonably expended by (2) a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The lodestar amount may be adjusted based on an evaluation of the factors in Kerr, which have not been subsumed in the lodestar calculation:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability' of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). There is a strong presumption that the lodestar amount calculated is reasonable. See Fischer, 214 F.3d at 1119 n.4 (citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)).
The parties have agreed to a lodestar amount of $119,630.84. ECF No. 140; ECF No. 142-2 at PageID.1541. The following is a chart summarizing the amount of attorneys' fees requested in the Fee Motion:
Timekeeper
Rate
Hours
Total
Tax
Total with Tax
Megan K. Kau
$380.00
104.5
$39,710.00
$1,871.14
$41,581.14
Audrey Stanley
$250.00
103.2
$25,030.00
$1,179.41
$26,209.41
Roman Amaguin
$350.00
141.45
$49,507.50
$2,332.79
$51,840.29
Total:
$114,247.50
$119,630.84
The parties have also agreed that the only factors not subsumed in the lodestar are:
(4) the preclusion of other employment by the attorney due to acceptance of the case;
(8) the amount involved and the results obtained;
(10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.ECF No. 142-1 at PageID.1528; ECF No. 143-1 at PageID.1601 (citing Kerr, 526 F.2d at 70. The Court shall evaluate the stipulated lodestar amount to verify that the amount requested is reasonable and shall then determine whether reductions are warranted.
A. Reasonable Hourly Rate
In the Fee Motion, Plaintiff requests an hourly rate of $380.00 for attorney Megan Kau, $250.00 for attorney Audrey Stanley and $350 for attorney Roman Amaguin as summarized below. ECF No. 142-2 at PageID.1541-1542.
Id. Plaintiff claims that “[t]he parties agreed to a $150.00 rate for some entries where Ms. Stanley was performing a mixture of attorney and paralegal work[,]” but fails to indicate which portion of the hours expended are billed at the $150.00 rate. ECF No. 142-2 at PageID.1541, n.83. However, Plaintiff's Supplemental sings a different tune regarding the reasonable hourly rate for attorney Megan Kau. Plaintiff's Supplemental argues that an hourly rate of $400.00 is reasonable despite the fact that Plaintiff had stipulated to and originally requested in the Fee Motion a rate of $380.00 an hour. ECF No. 146 at PageID.1688-1689. The Court shall disregard Plaintiff's request for higher fees. Plaintiff cannot now change its request, particularly where leave to supplement was given specifically to allow Plaintiff to submit timesheets for the stipulated lodestar amount requested in the Fee Motion. As the Defendants have pointed out, the Court was well within its discretion to deny Plaintiff's Fee Motion at the outset when Plaintiff failed to provide all timekeeping documentation in its Fee Motion. See LR54.2(h).
Timekeeper
Rate
Megan K. Kau
$380.00
Audrey Stanley
$250.00
Roman Amaguin
$350.00
The Court begins its evaluation by determining the reasonable hourly rate by assessing the prevailing market rate in the relevant community for similar work performed by attorneys of comparable skill, experience, and reputation. Roberts v. City of Honolulu, 938 F.3d 1020, 1025 (9th Cir. 2019) (citing Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008); Webb v. Ada County, 285 F.3d 829, 840 (9th Cir. 2002); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986)). The relevant community is the forum in which the district court sits. Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). The relevant community in this case is the District of Hawaii.
“It is the responsibility of the attorney seeking fees to submit evidence to support the requested hourly rate.” Roberts, 938 F.3d at 1024 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (Camacho, 523 F.3d at 980). “The burden is on the fee applicant ‘to produce satisfactory evidence' of the prevailing market rates.” Sam K. ex rel. Diane C. v. Hawaii Dept. of Educ., 788 F.3d 1033, 1041 (9th Cir. 2015) (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). In addition to their own statements, attorneys are required to submit additional evidence that the rate charged is reasonable. Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987). See also Camacho, 523 F.3d at 980 (“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation”).
1. Reasonable Hourly Rate for Attorney Megan Kau
In support of the hourly rate requested, Plaintiff submitted Ms. Kau's curriculum vitae (“CV”), Ms. Kau's declaration and the declarations of three attorneys from the community. Ms. Kau states that she has been practicing law in Hawaii from 2004 and has completed 25 jury trials when she was a deputy prosecuting attorney, 19 jury trials as a criminal defense attorney and 4 civil trials. ECF No. 146-1 at PageID.1695-1696. Ms. Kau states that she charged Defendant $400 per hour and normally charges other clients an hourly rate of $350.00 to $400.00 an hour. Id. The Court considered that in their declarations: (1) attorney Lyle Hosoda states that the hourly rate of $400 for Ms. Kau is “reasonable and consistent with the market rates for other attorneys and support personnel in Hawai'i” (ECF No. 146-8 at PagelD. 1757); (2) attorney David Minkin states that the hourly rate of $350.00 an hour for Ms. Kau is reasonable (Id. at 1761); and (3) attorney James H. Wright claims that the hourly rate of $400.00 an hour for Ms. Kau is reasonable (Id. at 1764). Taking into consideration this evidence and Ms. Kau's skill, level of experience (especially with jury trials) and reputation, and given that Hawaii is the relevant community and the work performed by Ms. Kau occurred in 2022 to 2023, the Court, based on its own knowledge of the rates awarded in this district, finds that the hourly rate of $340.00 is reasonable for Ms. Kau. See Roberts, 938 F.3d at 1023; Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (the Ninth Circuit held that district court did not abuse its discretion by relying on its own knowledge and experience to determine the reasonable hourly rate for attorneys' fees).
2. Reasonable Hourly Rate for Attorney Audrey Stanley
Plaintiff also submitted Ms. Stanley's CV, Ms. Stanley's declaration and three declarations of attorneys from the community in support of the hourly rate of $250.00 for Ms. Stanley. Ms. Stanley states that she has almost fourteen years of experience in Hawaii as an attorney. ECF No. 146-2 at PageID.1701. A review of Ms. Stanley's CV shows that she has both civil and criminal litigation experience. Her last employment, prior to joining the Law Office of Megan K. Kau, LLC, was as deputy corporation counsel from 2019 through 2022. ECF No. 146-7 at PageID.1746. The Court also considered the declarations submitted by the three different attorneys who practice in this community: Attorney Lyle Hosoda claims that the hourly rate of $250.00 for work performed by Ms. Stanley is reasonable (ECF No. 146-8 at PageID.1757); attorney David Minkin claims that $250.00 per hour for Ms. Stanley is reasonable (Id. at 1761); attorney James H. Wright states that the hourly rate of $250.00 for Ms. Stanley is reasonable (Id. at 1764). The Court is well aware of the rates awarded in this district and finds that $250.00 is a reasonable hourly rate for work performed by Ms. Stanley. See Roberts, 938 F.3d at 1023; Ingram, 647 F.3d at 928.
Plaintiff also requests $150.00 per hour for work performed by Ms. Stanley where she was “performing a mixture of attorney and paralegal work.” ECF No. 142-2 at PageID.1541, n.83. As noted earlier, Plaintiff did not provide the Court with a summary of the hours expended at the $150.00 rate. Id. at 1541-1542. The Court parsed through the timekeeping entries provided by Defendants page-by-page and have determined that all timekeeping requested at the $150.00 rate are in fact clerical tasks that cannot be included in the lodestar amount. See infra Part II.B.2. Accordingly, the Court shall not evaluate whether $150.00 is a reasonable hourly rate for “paralegal work” performed by Ms. Stanley because in fact, all work performed at this rate is noncompensable.
3. Reasonable Hourly Rate for Attorney Roman Amaguin
Plaintiff's request for the hourly rate of $350.00 for work performed by attorney Roman Amaguin is supported by Mr. Amaguin's CV and declaration. Mr. Amaguin states that he has been practicing law in Hawaii for 27 years, and his CV shows that he had been a partner/director at Torkildson Katz Fonseca Hetherington & Moore from 1995 through 2006. ECF No. 146-3 at PageID.1702; ECF No. 1467 at PageID.1752. Plaintiff did not submit declarations in support of Mr.
Amaguin's fee from other attorneys as it did in support of the fees requested for Ms. Kau and Ms. Stanley. However, based on its knowledge of the prevailing rates in the community for similar services by lawyers of comparable skill, experience and reputation, the Court agrees that $350.00 per hour is reasonable for Mr. Amaguin. See Roberts, 938 F.3d at 1023; Ingram v. Oroudjian, 647 F.3d at 928.
The reasonable hourly rates awarded to Plaintiff's attorneys are as follows:
Timekeeper
Rate
Megan K. Kau
$340.00
Audrey Stanley
$250.00
Roman Amaguin
$350.00
B. Hours Reasonably Expended
The Court now turns to whether the fees requested are reasonably necessary to achieve the results obtained. Barranco v. 3D Sys. Corp., Civ. No. 13-00412 LEK-RLP, 2014 WL 12650678, at *1 (D. Haw. Sept. 3, 2014) (citing Tirona v. State Farm Mut. Auto. Ins. Co., 821 F.Supp. 632, 636 (D. Haw. 1993). The Court again notes that Plaintiff failed to submit timesheets in its Fee Motion for work performed by attorneys Megan Kau and Audrey Stanley. The Court was well within its discretion to deny attorneys' fees for Ms. Kau and Ms. Stanley but elected to allow Plaintiff to supplement its Fee Motion. LR54.2(h).
1. Block-Billing
The Court finds that there are block-billed entries in the timesheets for attorneys Megan Kau, Audrey Stalney and Roman Amagui. “The district court may reduce the amount of requested fees . . . to account for block billing . . . as long as it provides an adequate explanation for its fee calculation.” Cook Productions, LLC v. Stewart, Civ. No. 17-00034 ACK-RLP, 2017 WL 4797513 at 6 (D. Haw. Oct. 24, 2017) (citing Ryan v. Editions Ltd. West, Inc., 786 F.3d 754, 765 (9th Cir. 2015)). “District courts have the authority to reduce hours that are billed in block format because such a billing style makes it difficult for courts to ascertain how much time counsel expended on specific tasks. Robinson v. Plourde, 717 F.Supp.2d 1092, 1100 (D. Haw. 2010) (citing Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007)).
The Court finds that the following entries are block billed and suggested a reduction of 10% from each entry:
Timekeeper
Date
Hours Requested
Hours Deducted
Description
Megan K. Kau
11/3/22
1.6
0.2
Review and revise damages calculation. Review Dkt. 56. Review potential motions in limine.
11/7/22
0.5
0.1
Review AS emails re damages case law. Email client re damages. Revise jury instructions.
11/22/22
2.4
0.2
Review and revise supplement memo supporting MIL 1 (v5) Review VIWP plan.
11/27/22
0.7
0.1
Finalize examinations: Guzman, Molina, Nubla. Review and revise stipulation (v1).
11/28/22
1.4
0.1
Review and revise Examinations: Guzman; Molina; Sugimura/Hokama/King. Review client's 11/24/22 emails [redaction]
12/1/22
0.9
0.1
Review and revise examinations: Baz, Martin. Review court's verdict and instructions.
12/4/22
2.7
0.3
Trial preparation rebuttal witness examinations. Call to client re same.
Audrey Stanley
10/26/22
1.0
0.1
Trial preparation Draft motion in limine to preclude evidence GET committee hearing meeting and investigative report, and draft motion in liming [sic] to preclude evidence that Plaintiff was at will (neither drafts are done)
Roman Amaguin
12/30/20
1.0
0.1
finalize charge of discrimination, including the declaration; draft letter to eeoc
6/14/21
1.0
0.1
telcall with opposing counsel; draft waiver of service
7/28/21
5.0
0.5
review and analyze defendants' 26 page motion for summary judgment [doc. 13] and Defendants Concise Statement of Facts in Support [Doc. 14] that had 470 pages of attachments to the concise statement
2/23/22
5.0
0.5
draft and revise responses to D's discovery requests; review documents Plaintiff sent and determined [sic] which documents were responsive to discovery requests, review Plaintiffs' discovery responses and finalize 54 discovery responses, and objections
3/24/22
6.0
0.6
draft 10-page motion for partial summary judgment on Count II [Doc. 39], and Concise Statement of Facts in Support [Doc. 4] selecting citations to include in the motion and conducting further research
4/11/22
1.0
0.1
draft demand letter seeking damages from Defendants and discuss with cl
The following chart summarizes the reasonable hours after the deductions:
Timekeeper
Hours
Megan K. Kau
103.5
Audrey Stanley
103.1
Roman Amaguin
139.55
2. Clerical or Ministerial Tasks
“[C]lerical or ministerial costs are part of an attorney's overhead and are reflected in the charged hourly rate.” Nicholas M. ex rel. Laura M. v. Dep't of Educ., Hawaii, Civ. No. 09-00162 HG-LEK, 2010 WL 234862, at *5 (D. Haw. Jan. 21, 2010) (citation omitted). Preparing documents for filing, filing documents with the Court, gathering documents for a hearing and the identification and organization of exhibits are clerical and noncompensable. See I.T. ex rel. Renee T. v. Dep't of Educ., Hawaii, 18 F.Supp.3d 1047, 1062 (D. Haw. 2014), aff'd sub nom. I. T. by & through Renee & Floyd T. v. Dep't of Educ., Hawaii, 700 Fed.Appx. 596 (9th Cir. 2017) (citing Haw. Motorsports Inv., Inc. v. Clayton Group Servs., Inc., Civ. No. 09-00304 SOM-BMK, 2010 WL 4974867, at *5 (D. Haw. Dec. 1, 2010), adopted by Haw. Motorsports Inv., Inc. v. Clayton Group Servs. NC, Civ. No. 09-00304 SOM-BMK, 2010 WL 5395669 (D. Haw. Dec. 22, 2010)) (citation omitted). “[B]ates stamping and other labeling of documents” are clerical tasks. Bruser v. Bank of Hawaii as Tr., Hawaiian Tr. Co., Ltd., Civ. No. 14-00387 LEK-WRP, 2020 WL 479261, at *6 (D. Haw. Jan. 29, 2020) (citation omitted).
The Court further finds that logging information is clerical, particularly where no further explanation is provided. See Ctr. for Food Safety v. Vilsack, No. C-08-00484 JSW EDL, 2011 WL 6259894, at *1 (N.D. Cal. Nov. 15, 2011), report and recommendation adopted, No. C 08-00484 JSW, 2011 WL 6259683 (N.D. Cal. Dec. 15, 2011) (citing Davis v. City & County of San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992) (“It simply is not reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a much lower cost.”) (citation omitted). “[C]oordinating service of documents; and formatting or printing documents; reviewing court-generated notices; notifying clients of court hearings; communications with court staff; scheduling; and corresponding regarding deadlines” are all examples of clerical work. Hawaii Def. Found. v. City & Cty. of Honolulu, Civ. No. 12-00469 JMS-RLP, 2014 WL 2804445, at *8 (D. Haw. Apr. 22, 2014), report and recommendation adopted as modified, Civ. No. 12-00469 JMS, 2014 WL 2804448 (D. Haw. June 19, 2014) (citing Ko Olina Dev., LLC v. Centex Homes, Civ. No. 09-00272 DAE-LEK, 2011 WL 1235548, at *12 (D. Haw. Mar. 29, 2011)).
The Court finds that the following entries are clerical:
Timekeeper
Date
Hours Requested
Hours Deducted
Description
Audrey Stanley
10/18/22
1.9
1.9
Review discovery and contemporaneously create discovery log and case data form . . . (150/hour)
10/18/22
0.8
0.8
Review pleadings and contemporaneously create pleading log and fill in case data form . . . (150/hour)
10/19/22
0.4
0.4
Review pleadings and contemporaneously create pleading log and fill in case data form
10/20/22
2.0
2.0
Review discovery and contemporaneously create discovery log and case data form . . . (150/hour)
10/20/22
0.1
0.1
Review discovery and contemporaneously create discovery log and case data form . . . (150/hour)
10/20/22
0.8
0.8
Review pleadings and contemporaneously create pleading log and fill in case data form . . . (150/hour)
10/21/22
1.5
1.5
Review pleadings and contemporaneously create pleading log and fill in case data form
10/24/22
0.5
0.5
Review and revise case data form . . . (150/hour)
10/31/22
0.6
0.6
Review discovery and contemporaneously create discovery log and case data form . . . (150/hour)
11/4/22
0.8
0.8
Trial preparation: include bate stamps in the timeline for Megan Kau prep
11/8/23
0.6
0.6
Trial preparation: Create folders for trial preparation and select exhibits for Client preparation.
11/9/22
2.3
2.3
Trial preparation: Create witness folders and extract documents from Defendants Concise Statement of Facts [Doc. 14] for each witness for witness preparation.
12/5/22
0.4
0.4
Trial preparation Prepare exhibits 22 and 23 (testimony and documents submitted and available on the county's website)
The Court denies all clerical tasks requested. Even at a reduced rate, an attorney may not charge fees for clerical tasks performed because such tasks should be included in an attorneys' overhead costs. Nicholas M. ex rel. Laura M., 2010 WL 234862, at *5. The following chart depicts the reasonable hours after all hours spent on clerical work is deducted:
Timekeeper
Hours
Megan K. Kau
103.5
Audrey Stanley
90.4
Roman Amaguin
139.55
3. Insufficient Documentation
In order to meet its obligation to determine the reasonableness of the hours requested, the Court must review an itemized log of hours and description of work performed to make its determination. In this case, the Court directed Plaintiff to submit such a log for the hours that it requested in the Fee Motion. Plaintiff, on his own, decided to submit “evidence supporting the hours that counsel actually worked at counsel's normal rates.” ECF No. 146 at PageID.1687. Worse yet, Plaintiff did not indicate in the time log which entries were reduced and/or eliminated to arrive at the stipulated lodestar amount Plaintiff initially requested. The Court finds that this constitutes insufficient documentation as the Court is unable to determine which entries are included in the amount Plaintiff initially requested. The Court declines to sort through entries that were not included in Plaintiff's initial Fee Motion request.
This is the second instance where the Court is well within its discretion to deny Plaintiff's fee request in its entirety pursuant to LR54.2(h). The rules state that it is Plaintiff's duty to itemize the work performed and provide adequate description of the services rendered, and Plaintiff failed to meet this requirement even though given the opportunity to supplement the Fee Motion. LR54.2(f)(2). However, Defendants, respecting the Stipulation they have entered into with Plaintiff, have provided a timekeeping log that the parties previously agreed constitutes the entirety of the stipulated lodestar amount Plaintiff originally requested in the Fee Motion. ECF No. 147-9 (Exhibit “H”). “Instead, Defendants do what Plaintiff was ordered but failed to do, provide support for the stipulated lodestar.” ECF No. 147 at PageID.1784. Rather than recommending the denial of Plaintiff's fee request in its entirety, the Court shall use Defendants' Exhibit “H” to determine the reasonableness of the proffered lodestar amount.
A “[r]eduction of the hours reported is warranted where counsel has provided inadequate documentation.” Doe ex rel. Doe v. Keala, 361 F.Supp.2d 1171, 1184 (D. Haw. 2005) (citing Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)) (citations omitted). In this case, the Court finds it appropriate to reduce the amount of fees requested due to counsel's failure to provide adequate documentation of the hours being requested, failure to follow the Court's instructions regarding the supplemental and failure to comply with the Local Rules. Although the Court is justified in reducing the lodestar figure by a larger amount, the Court finds that in this case, a 10% reduction to the hours requested by attorneys Megan Kau and Audrey Stanley is appropriate. The Court shall not recommend a 10% reduction to attorney Roman Amaguin's fees because Mr. Amaguin's timekeeping documentation in the Fee Motion was adequate.
Below summarizes the 10% reduction made to attorneys Megan Kau and Audrey Stanley's timekeeping:
Timekeeper
Hours
Reduce
Total Hours
Megan K. Kau
103.5
10%
93.15
Audrey Stanley
90.4
10%
81.36
Roman Amaguin
139.55
0%
139.55
4. Results Obtained
The Court is required to consider the “results obtained” or “the extent of [Plaintiff's] success” when calculating the lodestar figure. Morales v. City of San Rafael, 96 F.3d 359, 364 (9th Cir. 1996) (citing Hensley, 461 U.S. at 436).
The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the “results obtained.” This factor is particularly crucial where a plaintiff is deemed “prevailing” even though he succeeded on only some of his claims for relief.Hensley, 461 U.S. at 434. However, the damages recovered should not be the sole indicator of Plaintiff's success. Morales, 96 F.3d at 364 (citing Riverside v. Rivera, 477 U.S. 561, 574 (1986). The Court should consider nonmonetary success such as whether the verdict established a deterrent and served a public purpose. Morales, 96 F.3d at 364.
When determining whether reduction is appropriate, the Court must “(1) consider whether the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded (“step 1”) and (2) consider whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award (“step [2]”).” Doe ex rel. Doe v. Keala, 361 F.Supp.2d 1171, 1185 (D. Haw. 2005) (citing Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir. 2003)). However, the Court should not “revisit the merits of each previously dismissed claim . . . [as a] request for attorney's fees should not result in a second major litigation.” Schwarz v. Secretary of Health & Human Svcs., 73 F.3d 895, 902 (9th Cir. 1995) (citation omitted).
Step 1 of the consideration requires the Court to determine whether the claims are related or unrelated. Defendants argue that Plaintiff's claims “arise out of a common core of facts-the events surrounding his termination-such that they are related.” ECF No. 143-1 at PageID.1604. This Court agrees. “[C]laims are related if they ‘involve a common core of facts or [are] based on related legal theories.'” Schwarz, 73 F.3d at 902 (citing Hensley, 461 U.S. at 434-35). “[C]laims are unrelated if they are ‘distinctly different claims for relief that are based on different facts and legal theories.'” Id. The Court notes that “[t]he test for relatedness of claims is not precise[.]” Id. at 903 (citing Thorne, 802 F.2d at 1141).
[T]he test is whether relief sought on the unsuccessful claim ‘is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury on which the relief granted is premised . . . [t]hus, the focus is to be on whether the unsuccessful and successful claims arose out of the same “course of conduct.”Schwarz, 73 F.3d at 903 (citations omitted). The claims are related because they arise out of the same course of conduct, which is the process/procedure leading to Plaintiff's termination. When evaluating the legal theory under which Plaintiff's claims were brought, at first blush, it may appear that Plaintiff's First and Second Claim are related, and Plaintiff's Third Claim is not. However, all three claims are based on the legal theory that Defendants engaged in unlawful conduct to terminate Plaintiff.
The Court now turns to Step 2. Because the claims are related, the Court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation . . . a plaintiff who has won substantial relief should not have [his] attorney's fee reduced simply because the district court did not adopt each contention raised.” Schwarz, 73 F.3d at 901 (citation omitted). The question before the Court is whether Plaintiff's success was substantial such that Plaintiff achieved “excellent results” where “full compensation may be appropriate.” Id. at 902. On the other hand, if Plaintiff's success is “limited,” “full compensation may be excessive.” Id.
Defendants argue that while Plaintiff “recovered less than twenty percent of what he [sought]” as damages in his settlement demand letter and opening statement at trial, the fee award does not have to be proportionate to the amount of damages. ECF No. 143-1 at PageID.1605 (citing City of Riverside v. Rivera, 477 U.S. 561, 574 (1986)). However, Defendants argue that because Plaintiff “only recovered a small fraction of the relief he repeatedly claimed he was entitled to,” this “erod[es] the significance of his success[.]” ECF No. 143-1 at PageID.1605. Plaintiff counters that his prior settlement demands are irrelevant and cases cited by the Defendants are distinguishable from this case. ECF No. 144 at PageID.1662-1664.
The Court finds Defendants' argument persuasive. In assessing whether Plaintiff's success was “excellent” or “limited,” the Court must evaluate the context in which Plaintiff prevailed. While the amount of damages Plaintiff recovered in trial in comparison to the amounts Plaintiff requested throughout litigation is disproportionately small, this is not the only consideration the Court evaluates. As Defendant argues, the Court also evaluates the fact that the attorneys' fees requested exceeds the damages awarded (ECF No. 143-1 at PageID.1606); although Plaintiff prevailed on a constitutional issue, the lack of due process, such success has little public benefit as the process only applies to “the removal of a certain departmental director in Maui County” and thus is far from being a substantial benefit to the public at large (Id. at1607-1608); and the jury found that Plaintiff's termination was justified despite the lack of due process surely affected the amount of damages (Id. at 1609-1610).
Plaintiff argues that each of these considerations-the amount of damages versus requested damages, the attorneys' fees awarded versus damages awarded, whether a substantial public benefit exists, and the fact that the jury found Plaintiff's termination was justified-should not warrant a reduction in the amount of fees requested, but fails to persuade the Court that these considerations, when viewed as a whole, do not constitute limited success. The Court finds that Plaintiff's success is limited and a reduction of the attorneys' fees requested is appropriate in this case. In light of the overwhelming number of considerations indicating that Plaintiff's success was limited and that a downward reduction is necessary, the Court finds that a 30% reduction of the requested attorneys' fees appropriately reflect the limitations to Plaintiff's success. See Doe ex rel. Doe v. Keala, 361 F.Supp.2d 1171, 1187-88 (D. Haw. 2005) (“The Court finds that a 30% reduction is appropriate to account for the modest . . . damage award and the limited public policy aspect of the judgment obtained[.]”).
The following chart reflects a 30% reduction to the hours for the “results obtained” after accounting for the reductions for block-billing, clerical entries and insufficient documentation:
Timekeeper
Hours
Reduce
Total Hours
Megan K. Kau
93.15
30%
65.2
Audrey Stanley
81.36
30%
57.0
Roman Amaguin
139.55
30%
97.7
5. Total Lodestar Amount
Using the reasonable hourly rate and the hours reasonably expended as determined by this Court, the Court finds that the following chart depicts the lodestar amount:
Timekeeper
Rate
Hours
Total
Tax
Total with Tax
Megan K. Kau
$340.00
65.2
$22,169.70
$1,044.64
$23,214.34
Audrey Stanley
$250.00
57.0
$14,238.00
$670.89
$14,908.89
Roman Amaguin
$350.00
97.7
$34,189.75
$1,611.02
$35,800.77
Total:
$70,597.45
$73,924.00
The lodestar amount should be $70,597.45. The total lodestar amount with taxes is $73,924.00.
6. Fee Request for Work Performed on the Fee Motion, Reply and Plaintiff's Supplemental
Plaintiff requests attorneys' fees in the amount of $4,319.37 for the Fee Motion (ECF No. 142-1 at PageID.1538; ECF No. 142-7 at PageID.1559); $2,581.15 for work performed in drafting the Reply (ECF No. 144 at PageID.1674; ECF No. 144-2 at PageID.1677); and $2,492.15 in attorneys' fees for Plaintiff's Supplemental (ECF No. 146 at PageID.1694; ECF No. 146-9 at PageID.1766).
The Court has carefully reviewed Plaintiff's timekeeping for the Fee Motion and finds that hours expended in the preparation of the Fee Motion are reasonable. The
Court thus recalculates the amount using the reasonable hourly rate awarded. The total attorneys' fees awarded for the Fee Motion, inclusive of GET, is $4,292.14 as shown below.
Timekeeper
Rate
Hours
Total
Tax
Total with Tax
Megan K. Kau
$340.00
1.1
$374.00
$17.62
$391.62
Audrey Stanley
$250.00
14.9
$3,725.00
$175.52
$3,900.52
Roman Amaguin
$350.00
0.0
$0.00
$0.00
$0.00
Total:
$4,099.00
$4,292.14
The Court also carefully reviewed Plaintiff's timekeeping for the Reply and finds that the hours worked are reasonable. The Court thus recalculates the total attorneys' fees using the reasonable hourly rate awarded as shown below. The total attorneys' fees awarded for the Reply, inclusive of GET, is $2,560.21.
Timekeeper
Rate
Hours
Total
Tax
Total with Tax
Megan K. Kau
$340.00
0.5
$170.00
$8.01
$178.01
Audrey Stanley
$250.00
9.1
$2,275.00
$107.20
$2,382.20
Roman Amaguin
$350.00
0.0
$0.00
$0.00
$0.00
Total:
$2,445.00
$2,560.21
The parties, however, disagree as to whether Plaintiff should be awarded attorneys' fees for preparing Plaintiff's Supplemental. Defendants argue that “reasonably competent counsel do not require an order of the court and additional briefing to provide the materials to properly support an attorney's fee motion. Plaintiff cannot collect fees only incurred because of his attorneys' failures and should receive nothing for the [Plaintiff's Supplemental].” ECF No. 147 at PageID.1788. The Court finds that while Defendants are correct that Plaintiff's attorneys should not be able to gain a windfall for their own failure, the Court notes that a 10% deduction for insufficient documentation has already been made to the lodestar amount to account for this failure. See supra Part II.B.3.
The Court shall award Plaintiff its reasonable attorneys' fees for work performed on Plaintiff's Supplemental. However, after a review of Plaintiff's timekeeping, the Court finds that there are block-billed entries and clerical tasks included within Plaintiff's request. The Court declines to award the following entries for the reasons stated previously for block-billed and clerical entries:
Timekeeper
Date
Reason
Hours Requested
Hours
Deducted
Hours
Awarded
Description
Audrey Stanley
6/6/23
BlockBilling & Clerical
1.3
0.6
0.7
Supplement to fee motion (background and hourly rates portion) and pull exhibits 1-3.
6/8/23
BlockBilling & Clerical
1.2
0.6
0.6
Supplement to fee motion v.3, drafting declarations, compiling exhibit 4, and including Yoro 7 and 8 (portions of body worn camera footage).
6/8/23
Clerical
0.5
0.5
0.0
Review discovery and contemporaneously create discovery log and [sic]
6/8/23
Clerical
0.3 Total:
0.3 2.0
0.0
12
Compile exhibit 3.
See Part II.B.1 & 2. The reasonable attorneys' fees for work performed on Plaintiff's Supplemental, inclusive of GET, is $1,830.37 as summarized below:
Timekeeper
Rate
Hours
Total
Tax
Total with Tax
Megan K. Kau
$340.00
2.2
$748.00
$35.25
$783.25
Audrey Stanley
$250.00
4.0
$1,000.00
$47.12
$1,047.12
Accordingly, the Court awards Plaintiff a total of $8,682.72, inclusive of GET, for work performed on the Fee Motion, Reply and Plaintiff's Supplemental.
7. Kerr Factors; Reductions to the Lodestar Amount
The Court has evaluated the Kerr factors to determine if any downward adjustment is needed. In the Ninth Circuit:
The factors enunciated by this court in Kerr were intended to provide district courts with guidance in making the determination of the number of hours reasonably expended on litigation and the reasonable hourly rate. Those factors were never intended to be exhaustive or exclusive. What remains important is that the district court articulate with sufficient clarity the manner in which it makes its determination of a reasonable hourly rate and the number of hours which should reasonably be compensated.Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986), opinion amended on denial of reh'g, 808 F.2d 1373 (9th Cir. 1987) (citation omitted). The Court finds that it has sufficiently articulated its calculation of the reasonable hours of work performed on this case by reducing the requested amount for block-billed entries, clerical entries, insufficient documentation, and Plaintiff's limited success. See Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (“the Supreme Court explained that, in cases where the civil rights plaintiff receives only limited or ‘technical' success, the district court can simply award ‘low fees or no fees' without reciting the Kerr factors”) (citation omitted). Accordingly, the Court need not address any reductions in the context of the Kerr factors.
III. Nontaxable Expenses
The parties have agreed in the Stipulation that Plaintiff is entitled to expenses in the amount of $136.42. ECF No. 140. Plaintiff provides receipts for parking paid. ECF No. 146-1 at PageID.1697; ECF No. 146-6 at PageID.1740-1745. The total amount of these receipts is $120.00, but there is no evidence or explanation as to the $16.42 difference between the amount of expenses requested and the receipts provided. The Court thus award Plaintiff expenses in the amount of $120.00.
IV. Post-Judgment Interest
Plaintiff seeks an award of post-judgment interest pursuant to 28 U.S.C. § 1961. ECF No. 142-1 at PageID.1527. The Court GRANTS Plaintiff's request. “The statute applies to awards of attorneys' fees and costs under §1988.” Friend v. Kolodzieczak, 72 F.3d 1386, 1391 (9th Cir. 1995) (citing Spain v. Mountanos, 690 F.2d 742, 747-48 (9th Cir. 1982)). “Interest runs from the date that entitlement to fees is secured, rather than from the date that the exact quantity of fees is set.” Id. (citations omitted).
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Plaintiff's Fee Motion. The Court RECOMMENDS that the district court GRANT Plaintiff's attorneys' fees in the amount of $73,924.00, inclusive of GET, for work performed on this case and in the amount of $8,682.72, inclusive of GET, for work performed on the Fee Motion, Reply and Plaintiff's Supplement. The Court RECOMMENDS that Plaintiff be awarded $120.00 in nontaxable expenses and FINDS that Plaintiff is entitled to post-judgment interest.
IT IS SO FOUND AND RECOMMENDED.