BRUCE M. SELYA, Circuit Judge, GEORGE Z. SINGAL, District Judge, and D. BROCK HORNBY, District Judge.
Before the Court is Plaintiffs' Motion for Award of Attorney Fees and Costs (Docket # 49). As explained herein, the three judge panel GRANTS IN PART and DENIES IN PART the Motion.
42 U.S.C. § 1988 allows the Court to award "a reasonable attorney's fee as part of the costs" to "any prevailing party" in a case involving the vindication of civil rights, which necessarily includes this case in which Plaintiffs prevailed on their claim that the apportionment of Maine's congressional districts was unconstitutional.
As the Supreme Court recently (and unanimously) reiterated in Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011):
Id. at 2214 (quoting and citing Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) (internal citations omitted).
The calculus of what award the Court will approve initially requires a determination of the appropriate "lodestar," which is "the product of the number of hours appropriately worked times a reasonable hourly rate or rates." Hutchinson v. Patrick,
The Court need not repeat the facts of this case, which are detailed for interested readers in the panel's June 21, 2011 Memorandum and Order (Docket # 33). See Desena v. Maine, 793 F.Supp.2d 456, 457-59 (D.Me.2011). Following the issuance of that order, Defendants completed the required redistricting through an expedited legislative process, which concluded with the Governor signing L.D. 1590 on September 28, 2011. See Act to Reapportion the Congressional Districts, P.L. 2011, ch. 466 (emergency, effective Sept. 28, 2011). The Court then proceeded to enter judgment in favor of Plaintiffs on November 1, 2011 without ordering any further relief.
Via the pending motion for attorney's fees and costs, Plaintiffs seek an award in excess of $150,000.
Before turning to the necessary examination of the hours and rates of each member of Plaintiffs' litigation team, the Court initially addresses the objection that the overall staffing was excessive. As Defendants note, one local attorney, Attorney Woodcock, entered an appearance for Plaintiffs in this matter. As is clear on the current submission, Attorney Woodcock's work received support from a paralegal at his firm as well as significant support from the firm of Baker & Hostetler LLP ("Baker Hostetler"). The mere fact that the four attorneys from Baker Hostetler were not listed as attorneys of record does not prevent the Court from awarding fees for their work in this case. Nonetheless, the State Defendants argue that five attorneys,
In responding to the fee request, the State Defendants press the Court to deny entirely the portion of the fee request attributed to Clark Bensen of Polidata LLC. Mr. Bensen is an "attorney by training and a data analyst by practice." (Ex. D to Reply (Docket # 58-4) at Page ID 483.) The Bensen invoice attached to the initial motion indicates that Mr. Bensen billed a total of 20.75 hours at a rate of $300 an hour for a total requested sum of $6,225.00. (See Ex. 2A to Woodcock Decl. (Docket # 49-1) at Page ID 355.) Mr. Bensen's detailed billing record indicates that he began billing time to this matter on March 16, 2011 with a final entry on July 11, 2011. Austere descriptions account for these hours as "review," "conf. call," or "phone calls." (See id. at Page ID 356-57.)
On the record presented, the Court concludes that Mr. Bensen's expertise in analyzing population data and drawing maps was not necessary for this litigation and, therefore, was unproductively spent in connection with this case. Plaintiffs' Reply indicates that Bensen's work was done in anticipation of assisting the Court with re-drawing the lines of Maine's congressional districts. However, most of Bensen's work was done well in advance of the Court's July 7, 2011, 2011 WL 2669202, Procedural Order, which notified the parties of the possibility that they might be required to produce a redistricting plan on an expedited schedule. If the Court had ultimately required the submission of such a plan, it might well consider Mr. Bensen's work reasonable and productive. However, on the current record, the minimal explanations provided in the submitted invoices and Plaintiffs' briefs do not support the amounts claimed for Mr. Bensen.
As detailed in his affidavit, Attorney Woodcock is a partner at the firm of Eaton Peabody and served as lead counsel in this matter. All told, he has submitted invoices indicating he has billed 133.1 hours
Attorney Woodcock has approximately 35 years of experience practicing law in Maine as a member of the bar of this Court. He has billed his work in this case at an hourly rate of $295. The State Defendants have not objected to this rate and it appears within the approved range of prevailing market rates charged by comparably credentialed Maine counsel.
The Court next turns its attention to the hours reasonably expended by Mr. Woodcock at his claimed hourly rate. With respect to Attorney Woodcock's hours, State Defendants specifically ask that the Court exclude the following categories of time: (1) time spent talking to the media, (2) time spent attending two meetings of the Maine Reapportionment Commission, (3) time spent dealing with Mr. Bensen, and (4) time spent dealing with other unidentified persons and unrelated matters. State Defendants also seek to have Mr. Woodcock paid at a lower rate for: (1) any non-core work, which they describe as including "less demanding tasks, such as letter writing and phone calls" (State Defs. Response at 17), and (2) time spent preparing this pending motion for fees. The Court considers each of these objections in turn.
First, with respect to time spent talking to the media, State Defendants' objection is well taken. "Reported federal cases are unanimous in denying awards of attorneys' fees for media-related time...." See Parker v. Town of Swansea, 310 F.Supp.2d 376, 393 (D.Mass.2004) (quoting McLaughlin v. Boston School Committee, 976 F.Supp. 53, 72 (D.Mass. 1997)). State Defendants assert that Attorney Woodcock's contemporaneous billing records established 3.3 hours of time devoted exclusively to media and an additional 3.8 hours where it appears part of the time was expended on media. Having reviewed the entries cited by State Defendants, the Court will deduct the 3.3 hours listed as time spent exclusively on media and 1.4 hours of the time where the entries indicate time was partially spent on media. As a result, a total of 4.7 hours will be deducted as media-related time.
Second, State Defendants also ask that the Court exclude time and disbursements for Attorney Woodcock to attend two meetings of the Reapportionment Commission. In the Court's view, this time was reasonably expended. Attending these meetings allowed Attorney Woodcock to respond (or forego responding) to the many status reports filed by State Defendants and to confirm that reapportionment was proceeding, thereby foregoing additional preparation for further proceedings in this case. The Court will allow the time attributed to attending these two meetings. However, the Court will not allow Attorney Woodcock to recover his travel time at the full $295 rate. Nothing in the record supports such a practice. In the absence of such support, the Court notes that the common past practice is for an award to reflect an attorney's travel time at half of his hourly rate. See, e.g., Diaz v. Jiten Hotel Mgmt, Inc., 822 F.Supp.2d 74, 79 (D.Mass.2011) (noting that in the absence of documentation an attorney is simultaneously working and traveling, courts in the First Circuit "reduce the award for [travel] hours by fifty percent"); see also Perdue v. Kenny A., ___ U.S. ___, 130 S.Ct. 1662, 1670, 176
Third, in accordance with the Court's exclusion of fees related to Mr. Bensen, the Court will also exclude a total of 2.5 hours of time attributed to working with Mr. Bensen.
Fourth, Plaintiffs have responded to State Defendants' concerns regarding unidentified persons by explaining the role Darcie Johnson played in the case. (See Pls. Reply at 10.) As a result of that explanation, the Court will allow time attributed to discussions with Ms. Johnson. Plaintiffs have not sufficiently explained the role played by the other individuals to whom State Defendants object. As a result, the Court will deduct 1.3 hours of time attributable to Attorney Woodcock's time spent in contact with these individuals who have no apparent role in this litigation.
The Court notes that the State Defendants also objected to 0.2 hours that Attorney Woodcock billed in connection with review of a separate lawsuit. In Reply, Plaintiffs have agreed that this time entry should be excluded from any fee award in this case and the Court has deducted this time accordingly.
With respect to State Defendants' request that Attorney Woodcock be compensated at a lower rate for non-core work, the Court has already lowered the rate for travel. Having reviewed the billing records in detail, the Court believes that the only other non-core work that warrants a reduction in hourly rate is the time spent preparing the fee motion. While State Defendants did not list any hours from Attorney Woodcock's record in their response, Attorney Woodcock submitted supplemental bills with the Plaintiffs' Reply which cover the time period from November 1, 2011 through March 5, 2012. (See Ex. B to Pls. Reply (Docket # 58-2).) Upon review of those records, it appears that Attorney Woodcock has billed approximately 12 hours to the preparation and filing of the pending motion. The Court will deduct half of that time (6 hours) and thereby allow fees for Attorney Woodcock's time related to this fee motion at the hourly rate of $147.50.
As a result of all of the above deductions, the Court is left with a finding that Attorney Woodcock reasonably expended 110.65 hours on this matter. At an hourly rate of $295, the lodestar for Attorney Woodcock's work amounts to $32,641.75.
Ms. Wilber's paralegal work in this case is charged at a rate of $95.00 an hour.
As detailed in his declaration, Attorney E. Mark Bradeen is Of Counsel at the firm of Baker & Hostetler LLP. Attorney Bradeen has over thirty years of legal experience, including extensive experience in the specialized field of election law. He and his firm have actively participated in redistricting litigation through more than three apportionment cycles. Attorney Bradeen personally served as lead counsel for redistricting litigation in five states during the 2000 decennial period.
All told, Attorney Bradeen has submitted invoices indicating he has billed 41.25 hours at a claimed hourly rate of $595 an hour. State Defendants ask that the rate be lowered to $295 an hour, the local prevailing rate charged by Attorney Woodcock. Plaintiffs predictably respond that the nature of this case required an out-of-state specialist, a label clearly applicable to Attorney Bradeen, and that such specialists are entitled to recover at the prevailing rate of the local area where they practice. See Williams v. Poulos, Nos. 94-2057 & 94-2058, 1995 WL 281451 at *4 (1st Cir. May 12, 1995) ("[O]ut-of-town rates may be applied if the complexities of a particular case require the particular expertise of non-local counsel.") (emphasis in original); Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.1983).
Even assuming the need for a D.C.-based specialist in redistricting litigation, the Court concludes that Plaintiffs have not met their burden of proving that $595 is the prevailing rate for such representation in Washington D.C. Plaintiffs' sole support for Bradeen's claimed hourly rate is a statement in his own declaration indicating that the rate is "well within the range of the prevailing market rates [for Washington D.C.] charged by attorneys of comparable experience." (Bradeen Decl. (Docket # 49-2) ¶ 15.) Attorney Bradeen does not indicate that he has been awarded this rate in any other fee-shifting case. In fact, Plaintiffs have not cited any civil rights case awarding this rate to any attorney and the Court's own initial research has found none. Rather, the Court's own research indicates that the "Laffey Matrix" is generally used to determine prevailing rates within the D.C. Circuit. See Covington v. District of Columbia, 57 F.3d 1101, 1108-09 (D.C.Cir.1995); Flores v. District of Columbia, ___ F.Supp.2d ___, ___ n. 3, Civil No. 11-166(AK), 2012 WL 1434964 at *3 n. 3 (D.D.C. April 26, 2012) (explaining the Laffey Matrix and its use). Under the Laffey Matrix, the Court takes judicial notice of the fact that Attorney Bradeen would have been entitled to receive a maximum prevailing rate of $475 when this case began.
State Defendants specifically ask that the Court deduct the following categories of time from Attorney Bradeen's hours: (1) time spent talking to the media, (2) time spent dealing with Mr. Bensen and (3) time spent dealing with other unidentified persons and unrelated matters. As the Court has already indicated, the Court believes all three of these objections are well-founded. As a result, the Court will deduct (1) 0.75 hours billed on 4/28/11 as media-related time, (2) 8.5 hours of time spent dealing with Mr. Bensen,
After these deductions, the Court finds that Attorney Bradeen reasonably expended 28.5 hours on this matter for which he should be compensated at a rate of $475 resulting in a total fee of $13,537.50.
In addition to Attorney Bradeen, Plaintiffs seek fees for work by three Baker Hostetler associates in connection with this case. Attorney Walwrath, a 2007 law school graduate, has submitted records for 94.25 hours of work at a claimed hourly rate of $420 an hour. Attorney Hangawatte, a 2008 law school graduate, has submitted records for 87.5 hours at a claimed hourly rate of $360 an hour.
Defendants ask that the rate for all of these associates be lowered to $175 an hour, which Defendants argue is the prevailing rate in Maine for a comparably credentialed attorney. The Court agrees. See Nkihtaqmikon v. Bureau of Indian Affairs, 723 F.Supp.2d 272, 284 (D.Me. 2010) (allowing an hourly rate of $175 for an associate with four years of experience). Plaintiffs argue that the Baker Hostetler associates staffed on this matter are specialists who should be permitted to bill their standard out-of-state rates for their work on this case. As already discussed, a court will approve an out-of-state rate that is higher than the local prevailing rate if the attorney requesting that rate has particular expertise that is not readily available
Having determined that these three attorneys may only be compensated at a lower billing rate, the Court turns to an examination of the number of hours billed. All told, these three associates have billed 196.25 hours. In the Court's judgment, the number of hours is excessive. Closer examination reveals that 41.5 of those hours were spent preparing the submissions in connection with this fee request.
Ultimately, the Court concludes that the lodestar yields a presumptively reasonably fee of $67,685.85. The Court finds no circumstances that warrant any discretionary adjustment of this figure upward or downward. Likewise, the Court finds no basis for awarding interest.
In addition to the requested fee, Eaton Peabody's submitted invoices show disbursements
Having determined the amount of fees and costs that Plaintiffs are entitled to recover, there remains the question of whether the Court can or should require the Maine Democratic Party, as the Intervenor, to pay some portion of the fee award in this case. At the outset, the Court is mindful of the Supreme Court's admonition: "A request for attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987) (similarly quoting Hensley).
In their initial Motion, Plaintiffs did not explicitly seek an award from the Maine Democratic Party.
While this is not an issue on which there is any clear First Circuit precedent, the Ninth Circuit has clearly held that an intervening defendant should be held liable for a § 1988 fee award "`only where the intervenors' action was frivolous, unreasonable, or without foundation.'" Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1288 (9th Cir.2004) (quoting Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 761, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989)). On the record presented, and given the minimal effort expended by all parties on briefing this particular issue, the Court declines to make a finding that the positions taken by the Democratic Party were unreasonable or frivolous. In this case, neither side objected to the intervention of the Maine Democratic Party although it was readily apparent at that time that the addition of another party would add to the costs of the litigation. Ultimately, given the unique expedited scheduling required by the election calendar, the Intervenor's participation was helpful to the Court and contributed to the timely entry of judgment in this case. Under these circumstances, the Court will not require the Intervenor to pay any portion of the fee award.
For the reasons just explained, the Court GRANTS IN PART Plaintiffs' Motion for Award of Attorney Fees and Costs and AWARDS fees totaling $67,685.85 and additional costs totaling $2,713.22 to be paid by the State Defendants. State Defendants
