ANTHONY W. ISHII, Senior District Judge.
This case involved a Second Amendment challenge to statutes that imposed a 10-day waiting period between the time of purchase and time of possession of a firearm, and a Fourteenth Amendment challenge to 18 individual exemptions to the 10-day waiting period. Following a bench trial, the Court held that the 10-day waiting period violated the Second Amendment as applied to three classes of individuals and enjoined Defendant from enforcing the 10-day waiting period with respect to the three classes of individuals, but the Court did not reach the Fourteenth Amendment question. Now before the Court is Plaintiffs' motion for attorneys' fees.
Plaintiffs argue that there is no question that they are the prevailing party and that they are entitled to fees. Plaintiffs argue that they have kept detailed time records and have not billed or "no charged" hundreds of hours in the exercise of billing judgment, including hours for research and conferences. Given the voluntary reductions in time that have already occurred, no further reduction in time is proper. Further, the novelty and complexity of the case required multiple attorneys with discrete responsibilities and expertise. Second Amendment law is rapidly developing and few attorneys practice in this area. An excellent result was obtained, and this is one of the few successful Second Amendment challenges to a firearms statute. The various attorneys who worked on this case are entitled to an hourly rate that reflects each counsel's experience, consistent with the private market rate for similarly qualified attorneys. Pursuant to the Laffey Matrix for attorneys in Washington, D.C., which is a market comparable to Los Angeles and San Francisco, the attorneys should receive between $640 per hour and $110 per hour. The total lodestar amount, given the hours expended and the applicable rates, is $305,526.21. However, as part of their reply brief and in answer to Defendant's argument that a $350 rate should apply, Plaintiffs state that they will abide by the Court's discretion in terms of a reasonable rate. Further, as part of supplemental briefing, Plaintiffs request 10 hours of work done with respect to post-trial motions, and 6.9 hours of work on the fee motion.
With respect to costs and expenses, all of the costs and expenses incurred were reasonable. All litigation costs, including copying litigation documents, are compensable. The discovery expenses were reasonable given the voluminous documents involved. All travel time meeting with clients or counsel or attend hearings are compensable. Thus, a $1,430 award is proper.
Defendant acknowledges that the Court may award attorney's fees, that Plaintiffs are the prevailing party, and that the lodestar method is the proper method for calculating fees. However, Plaintiffs' lodestar figure is inflated. The $640 rate for the three lead attorneys is unreasonable. Mr. Kilmer actually billed an hourly rate of $270 and has a customary rate of $360 per hour. Mr. Otten billed at a rate of $250 per hour. Mr. Davis billed at a rate of $250 per hour and has a customary rate of $350 per hour. The appropriate hourly rate is the rate charged by attorneys of similar experience in the Eastern District of California, Fresno Division. Reliance on rates from Los Angeles and San Francisco is inappropriate. Case law and related declarations in other cases indicates that a rate of $350 per hour for the lead attorneys is appropriate. This coincides with the customary rates charged by Messrs. Kilmer and Davis. For attorney Joyce, a reasonable rate is $255 per hour. For attorney Ruttle, a reasonable rate is $150 per hour. Finally, while $110 per hour for attorneys Quartermaine and Tamura is appropriate for work done once they became attorneys, they should only be reimbursed at a rate of $75 per hour for work done as clerks.
In terms of the nature of the work performed, this case proceeded like a typical litigation matter. Plaintiffs filed an original and an amended complaint, propounded one set of requests for production (to which about 2,000 documents were produced), took no depositions, attended four depositions, filed no discovery motions, successfully defended against a summary judgment motion, and tried a 3-day bench trial. This consideration does not justify deviating from the maximum hourly rate of $350 per hour.
In terms of novelty and difficulty, although Second Amendment law is a new area of practice, this case did not require analyzing complex statutes or fact patterns, or cogently interpreting and applying a vast body of case law. It is noteworthy that the 2008 Heller decision involved attorneys' fees at a rate of $420 per hour, based on the Laffey Matrix for Washington, D.C. The novelty of this case does not justify deviating from the $350 rate.
In terms of contingency fees, Plaintiffs' counsel did not take this case on a contingent basis. Because Plaintiffs' counsel charged fees in the traditional manner, the rate should either be discounted or not increased.
Defendant also argues that Plaintiffs have not justified the claimed hours worked. Plaintiffs have merely submitted copies of their legal bills. For a complex case, the submission of voluminous billing records without delineating a specific total for each of the categories worked will not substantiate the total hours claimed. This flaw alone justifies the denial of Plaintiffs' motion. Also, Plaintiffs should not recover fees that were incurred in the pursuit of unsuccessful claims. Although Plaintiffs prevailed on their Second Amendment challenge, they did not prevail on their Fourteenth Amendment challenge. Plaintiffs did not delineate how many hours were spent on the Fourteenth Amendment challenge. Considering that the Fourteenth Amendment challenged was a minority of the litigation time, an across the board reduction of 10% is proper.
Finally, Defendant argues that with a 10% reduction, and utilizing the appropriate rates, the grand total of attorneys' fees awarded should be $159,715.00, plus $1,430 in costs.
"42 U.S.C. § 1988(b) authorizes district courts to award the `prevailing party,' in any suit under 42 U.S.C. § 1983, a `reasonable attorney's fee.'"
The prevailing party has the burden of submitting billing records to establish that the number of hours it has requested is reasonable.
The prevailing party also has the burden of demonstrating that their requested rates are "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation."
There is no dispute that Plaintiffs are the prevailing parties and are entitled to attorneys' fees.
Plaintiffs' requested rates are based on the rates reflected in the Laffey matrix for attorneys in Washington, D.C. However, the applicable rate is the prevailing rate for comparable attorneys in the district court's forum.
Magistrate Judge McAuliffe and Magistrate Judge Seng recently examined cases that set billing rates for the Fresno Division.
Plaintiffs had three primary attorneys and seven secondary attorneys work on this case. None of the attorneys involved practice in the Fresno Division.
Attorney Victor Otten was a partner in Otten & Joyce, LLP until March 2013, but is now employed by Otten Law, PC. Mr. Otten has litigation experience and experience working with non-profit organizations, and became involved in this case in June 2013. Mr. Otten has about 20 years of experience, and charged Plaintiff Cal Guns Foundation $250 per hour. Mr. Otten was a primary attorney and one of two trial counsel. Defendant argues that the maximum hourly rate for Mr. Otten is $350. After considering Mr. Otten's experience and involvement in this case, the Court's own knowledge, and the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $375 is reasonable.
Attorney Don Kilmer is a solo practitioner who has about 18 years of experience. Mr. Kilmer billed the Second Amendment Foundation and the Cal Guns Foundation a combined hourly rate of $270 ($135 for each client), but his normal hourly rate is $360. Most of Mr. Kilmer's practice appears to be devoted to family law matters, but Mr. Kilmer was lead counsel in the Second Amendment case of Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), and has published articles on firearms policy. Mr. Kilmer was a primary attorney and one of two trial counsel in the case at bar. Defendant argues that an hourly rate of $350 is appropriate. After considering Mr. Kilmer's experience and involvement in this case, his customary fee, the Court's own knowledge, and the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $375 is reasonable.
Attorney Jason Davis has about 11 years of experience in the area of firearms related laws, including experience with civil and criminal litigation, appeals, legislative analysis, lobbying activity, regulatory compliance, and consultation. Mr. Davis established Davis & Associates in 2009, and has continued to be involved in litigating, negotiating, and supervising attorneys in matters related to the Second Amendment and firearms rights. Mr. Davis billed the Cal Guns Foundation at a rate of $250 per hour, but customarily charges clients at $350 per hour. Mr. Davis was involved in filing this case, and did research and consultation involving discovery, trial questions/strategy, and legislative history. Defendant argues that a rate of $350 per hour is appropriate. After considering Mr. Davis's experience and involvement in this case, his customary fee, his expertise, the Court's own knowledge, and the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $350 is reasonable.
Attorney Brigid Joyce has about 10 years of legal experience, and was a partner at Otten & Joyce, LLP, as well as an adjunct legal writing professor at Whittier Law School. Ms. Joyce's involvement in this case appears to have been limited to research and drafting objections and motions related to judicial notice. After considering Ms. Joyce's experience and involvement in this case, the Court's own knowledge, as well as the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $285 is reasonable.
Attorney Michael Ruttle was admitted to practice law in California in December 2012.
Attorney Jennifer Tamura was admitted to practice law in California in June 2013.
Attorney Denise Quartermaine was admitted to practice law in California in December 2013.
Justin Otten was admitted to practice law in California on January 14, 2014.
Attorney Bradley Benbrook has been practicing law in California since 1995. He founded Benbrook Law Group and customarily bills his clients at a rate of $425 per hour. Mr. Benbrook's participation in this case was limited to reviewing a consolidated opposition to Defendant's post-trial motions. After considering Mr. Benbrook's experience and involvement in this case, his customary fee, and the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $335 is reasonable.
Attorney Steven Duvernay is a member of the Benbrook Law Group, was admitted to the California bar in 2007, and customarily bills his clients at a rate of $325 per hour. Mr. Duvernay's involvement in this case was limited to consulting, researching, and drafting, Plaintiffs' consolidated opposition to two post-trial motions. After considering Mr. Duvernay's experience and involvement in this case, his customary fee, and the relatively new and developing area of Second Amendment jurisprudence, the Court finds that an hourly rate of $250 is reasonable.
Plaintiffs brought essentially two challenges — a Second Amendment challenge to the two statutory 10-day waiting periods and a Fourteenth Amendment equal protection challenge to approximately 18 categories of exemptions to the waiting 10-day period. The Court found in favor of Plaintiffs on their Second Amendment challenge, but did not reach the Fourteenth Amendment issue.
From above, the relief Plaintiffs sought for both their Second and Fourteenth Amendment claims was intended to prevent Defendant from applying that 10-day waiting period to them and others in the three as-applied categories. The claims involve a common core of facts or related legal theories in that both claims involve Defendant prohibiting Plaintiff from exercising a Second Amendment right for a period of 10 days. Thus, the Second Amendment and Fourteenth Amendment claims are related.
Assuming that Plaintiffs were unsuccessful in their Fourteenth Amendment claims, they were highly successful in the results obtained on their Second Amendment claims. Plaintiffs obtained the relief requested under both their Second and Fourteenth Amendment claims, despite no Fourteenth Amendment analysis being undertaken by the Court. The relief Plaintiffs obtained justifies full compensation.
Relying on Jadwin v. County of Kern, 767 F.Supp.2d 1069 (E.D. Cal. 2011), Defendant argues that Plaintiffs failed to delineate specific totals for each category of work performed, and that this failure justifies denying Plaintiffs' motion in its entirety. The Court disagrees. Jadwin involved attorneys who were attempting to obtain compensation for approximately 5,000 billable hours and, critically, who had violated a court order that expressly required them to provide "task and billing totals in their supplemental applications for attorneys' fees."
Plaintiffs are only required to provide a minimal level of detail that identifies the general subject matter of the time expenditures.
The Court has reviewed the billing documents submitted by Plaintiffs. Although numerous attorneys were involved at various stages of this case, Plaintiffs appear to have minimized redundant hours. Plaintiffs' counsel have "self-edited,"
Based on the submissions and arguments of the parties, the Court concludes the following: Victor Otten performed 92 hours of work; Don Kilmer performed 219 hours of work; Jason Davis performed 112.8 hours of work; Brigid Joyce performed 10.4 hours of work; Michael Ruttle performed 100.4 hours of work; Jennifer Tamura performed 4.6 hours of work; Denise Quartermaine performed 13.8 hours of work; Justin Otten performed 20.2 hours of work as a clerk and 51.4 hours as an attorney; Bradley Benbrook performed 1.9 hours of work; and Stephen Duvernay performed 9.9 hours of work.
Victor Otten performed 92.9 hours of work. At $375 per hour, Plaintiffs are entitled to an award of $34,500 for Mr. Otten's work.
Don Kilmer performed 219 hours of work. At $375 per hour, Plaintiffs are entitled to an award of $82,125 for Mr. Kilmer's work.
Jason Davis performed 112.8 hours of work. At $350 per hour, Plaintiffs are entitled to an award of $39,480 for Mr. Davis's work.
Brigid Joyce performed 10.4 hours of work. At $285 per hour, Plaintiffs are entitled to an award of $2,964 for Ms. Joyce's work.
Michael Ruttle performed 100.4 hours of work. At $175 per hour, Plaintiffs are entitled to an award of $17,570 for Mr. Ruttle's work.
Jennifer Tamura performed 4.6 hours of work. At $150 per hour, Plaintiffs are entitled to an award of $690 for Ms. Tamura's work.
Denise Quartermaine performed 13.8 hours of work. At $150 per hour, Plaintiffs are entitled to an award of $2,070 for Ms. Quartermaine's work.
Justin Otten performed 51.4 hours of work as an attorney. At $150 per hour, Plaintiffs are entitled to an award of $7,710 for Justin Otten's work as an attorney. Justin Otten performed 20.2 hours of work as a legal clerk/non-attorney. At $75 per hour, Plaintiffs are entitled to an award of $1,515 for this work.
Bradley Benbrook performed 1.9 hours of work. At $335 per hour, Plaintiffs are entitled to an award of $636.50 for Mr. Benbrook's work.
Stephen Duvernay performed 9.9 hours of work. At $250 per hour, Plaintiffs are entitled to an award of $2,475 for Mr. Duvernay's work.
Adding these figures, the total lodestar amount is: $192,073.00.
Neither Plaintiffs nor Defendant have requested or argued for any adjustment to the lodestar figure. In the absence of an argument on this point, the Court declines to adjust the lodestar figure.
Defendant states that she does not oppose awarding Plaintiffs their requested costs. In light of Defendant's non-opposition, Plaintiffs will be awarded costs of $1,434.16.
Additionally, Mr. Kilmer has declared that he incurred billable costs for hotel expenses during the trial and final argument in the amount of $572.29. Mr. Kilmer is from the San Jose area. Trial in this matter was from March 25, 2014 to March 27, 2014, and final argument was held on August 15, 2014. In other words, 4 days of hotel stays are apparent from the record. Hotel costs may be awarded as part of an award under 42 U.S.C. § 1988.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiffs' motion for attorneys' fees is GRANTED in the amount of $192,073.00; and
2. Plaintiffs' motion for costs is GRANTED in the amount of $2,006.45 ($1,434.16 + $572.29).
IT IS SO ORDERED.