Grisham et al v. Municipality of Anchorage et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
David Grisham and Tina Watson, )
)
) 3:18-CV-00001 JWS
Plaintiffs, )
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 44]
Municipality of Anchorage; John )
Rodda, in his official capacity as )
Anchorage Parks and Recreation )
Director; and John Casselman, )
individually, and in his official )
capacity as police officer for the )
Whittier Police Department, )
)
)
Defendants. )
)
I. MOTION PRESENTED
At docket 44, with a memorandum in support at docket 45, Plaintiffs David
Grisham (“Grisham”) and Tina Watson (“Watson”; collectively “Plaintiffs”) filed a motion
for attorneys’ fees and expenses under 42 U.S.C. § 1988. They are requesting a total
of $79,143.18: $56,920 for time spent by attorney Nathan Kellum; $7,700 for time spent
by attorney Anthony Mangini; $13,942.50 for time spent by attorney Anne Helzer; and
$580.68 in expenses. The expenses are not taxable, but defendants have not opposed
an award for the expenses. The court will award $580.68 in expenses. Defendant
Municipality of Anchorage (the “Municipality”) opposes the amount of the requested fees
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at docket 46. Plaintiffs reply at docket 48. Oral argument was not requested and would
not be of assistance to the court.
III. STANDARD OF REVIEW
A party who prevails on a § 1983 claim is generally entitled to reasonable
attorneys’ fees and expenses.1 “The district court has discretion in determining what
fees are reasonable” but must clearly explain its reasoning for setting the fee amount.2
When determining what constitutes a reasonable fee award, the courts uses the
lodestar method. The method consists of two parts.3 First, the court must calculate the
lodestar figure, which is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.4 A reasonable hourly rate is the prevailing rate in
the relevant community.5 The number of hours reasonably expended on litigation is
generally determined by the winning lawyer’s professional judgment as to how much
time was necessary for the case.6 However, when calculating the lodestar figure the
court should not include “‘excessive, redundant, or otherwise unnecessary’” hours.7 “A
district court can . . . impose up to a 10 percent reduction without explanation. . . .
However, ‘where the disparity is larger, a more specific articulation of the court’s
reasoning is expected.’”8 The resulting figure should “approximate[ ] the fee that the
142 U.S.C. § 1988(b); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
2Chaudhry v. City of L.A., 751 F.3d 1096, 1110 (9th Cir. 2014).
3Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016)
4Id.
5Id.
6Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).
7Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (quoting Hensley, 461 U.S.
at 433-34).
8Chaudhry, 751 F.3d at 1111 (quoting Moreno, 534 F.3d at 1111).
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prevailing attorney would have received if he or she had been representing a paying
client who was billed by the hour in a comparable case.”9
Second, the court determines whether to enhance or reduce the lodestar figure
based on the Kerr factors10 that are not already subsumed in the initial lodestar figure.11
This further adjustment is generally disfavored.12
The party requesting an award of fees bears the burden of “producing evidence
that their requested fees are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience and reputation.”13 If the
applicant meets this burden, then the opposing party must submit evidence disputing
the accuracy and reasonableness of the fee applicant’s claims.14 “If opposing counsel
cannot come up with specific reasons for reducing the fee request that the district court
finds persuasive, [the court][ should normally grant the award in full, or with no more
than a haircut.”15
9Kelly, 822 F.3d at 1099 (internal quotations omitted).
10The Kerr factors are as follows: (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. Morales v. City of San Rafael, 96 F.3d 359,363-64 n.8 (9th Cir. 1996).
11Many of the Kerr factors are “presumably taken into account in either the reasonable
hours component or the reasonable rate component of the lodestar calculation.” Id. at 364 n.9;
see also Kelly, 822 F.3d at 1099.
12Morales, 96 F.3d at 364 n.9 (additional adjustment of the lodestar figure “on the basis
of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting
the reasonable number of hours or reasonable hourly rate at the first step, . . . is a disfavored
procedure.” (emphasis added)).
13Chaudry, 751 F.3d at 1110 (internal quotations omitted).
14Id. at 1110-11.
15Moreno, 534 F.3d at 1116.
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IV. DISCUSSION
The Municipality agrees that Plaintiffs were the prevailing party and that an
award of attorneys’ fees and expenses is appropriate here. The Municipality also
agrees with the requested hourly rates, which are supported with declarations attesting
to the reasonableness of these rates for this community and for this type of work. The
Municipality’s opposition to the requested fee award is based on its contention that the
224 hours Plaintiffs’ attorneys spent on the matter is unreasonable, noting that this case
did not proceed to summary judgment or trial.
A. Burden to show reasonableness
Plaintiffs argue that their request for an award of 224 hours of attorneys’ time is
reasonable in this case, citing the declaration of Walter M. Weber that was attached to
their request for fees.16 Mr. Weber is an attorney based in Virginia who litigates First
Amendment cases throughout the country. In paragraph 15 of his declaration, he
asserts that the time attorney Kellum and attorney Mangini spent on the matter is
reasonable given the facts and course of this case. Plaintiffs argue that the Municipality
failed to present a competing declaration or other evidence that would call into question
the hours spent on the matter, and therefore this court must grant the requested fees
without any significant reductions.
The court disagrees with Plaintiffs’ assessment. While the Municipality did not
submit a declaration to support its contention that the amount of hours Plaintiffs’
attorneys spent on this case was excessive, it nonetheless sufficiently communicated to
the court specific reasons why it believes the request should be reduced and cited
numerous cases involving similar religious expression issues and litigation history where
attorney Kellum’s requested fees have been reduced. The cases discuss, at least in
part, the reasonableness of hours attorney Kellum claimed. This is sufficient support for
the Municipality’s position. Moreover, while declarations are useful and persuasive
16Doc. 44-6.
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when the court is assessing what the prevailing attorney rates are for a community, they
are less so in the context of assessing the reasonableness of hours spent on a matter.
Indeed, Mr. Weber’s perfunctory statement that the time expended here is normal is not
persuasive enough to cause the court to discount the Municipality’s arguments. A
competing declaration stating the opposite would have been of little value.
To the extent the Municipality asks the court to wholesale slash attorney Kellum’s
requested fees based on the overall percentages other courts have reduced his fees,
the court declines to do so. As noted by the Plaintiffs, some of the reductions in those
cases were due to additional factors, such as hourly rates, overall success, and
unrelated appeal work, not just excessive hours. The court must instead look at the
specific time entries in this case and decide what reductions are warranted.
B. Reasonableness of hours expended
The Municipality argues that Plaintiffs’ requested fees are excessive in a few
areas. It believes the attorneys spent too much time on the complaint and the motion
for a preliminary injunction and too much time preparing for the Rule 26(f) conference.
It also argues that Plaintiffs’ attorneys did not efficiently use local counsel and spent too
much time on consultation.
1. Complaint and Motion for a Preliminary Injunction
The parties present different numbers as to how much time Plaintiffs’ attorneys
spent on pleadings and the preliminary injunction motion. Indeed, given the nature of
billing statements, it is understandable that tasks and time entries could be categorized
multiple ways. The court has done its own review of the billing statement and will rely
on its own assessment of the numbers. Time entries related to the complaint total
about 29.5 hours, with most of those hours billed by attorney Kellum. Time entries
related to the preliminary injunction motion total 37 hours. This number only includes
time spent researching and writing the motion itself. Again, attorney Kellum was the
primary attorney on this task. In addition, Plaintiffs’ attorneys spent about 15 hours
preparing exhibits for the motion, 11 of which were spent on drafting Grisham’s and
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Watson’s affidavits. It appears attorney Mangini did much of the work on exhibits and
affidavits. The hours attributed to the complaint and preliminary injunction motion
exclude case development activities—reviewing files, making calls, looking at maps and
photos, watching video—that attorney Kellum did not categorize as part of the complaint
or the preliminary injunction process. Pre-complaint case development by attorneys
Kellum and Helzer total 39 hours. Again, this is time apart from the drafting of the
complaint and the preliminary injunction. In total, the attorneys spent around 120.5
hours preparing the initial filings in this case. The court finds this amount of time
excessive for a variety of reasons.
Kellum is a seasoned and experienced First Amendment attorney. The parties
have cited many cases where Kellum has been the attorney for plaintiffs bringing a
lawsuit related to his or her attempted distribution of religious materials in public places.
Kellum’s complaint outline and causes of action for these types of cases are well
defined.17 While the court agrees with Plaintiffs’ argument that there are legal and
factual distinctions that make each case unique, the time entries here show excessive
time spent on drafting multiple documents with the same recitation of facts. The facts of
the case make up the bulk of the complaint (18 of the 22 pages). The facts are then
repeated in the two affidavits. They are repeated again in the preliminary injunction
motion and constitute about a third of that document. After spending around 40 hours
developing the case and spending around 30 hours drafting the fact-based complaint, it
is duplicative to claim another 11 hours drafting affidavits with the same recitation of
facts18 and duplicative to claim more time preparing the facts for the preliminary
injunction motion. Moreover, the court notes that this is not the first time Kellum has
worked with Grisham. He also represented Grisham in a Northern District of Texas
case where Grisham sued the City of Fort Worth for violating his First Amendment rights
17See docs. 46-3 and 46-2.
18The time entries show that the affidavits were prepared after the complaint.
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by preventing him from handing out religious literature at a public park during a public
event.19 Therefore, time spent gathering information about Grisham and his religious
beliefs to include in the pleadings should have been minimal. Attorney Mangini’s time
spent on exhibits also appears excessive given that they are not attorney-created
exhibits.
Rather than parse through each specific entry and determine at what point in
time the attorneys’ efforts became excessive, the court will make a wholesale reduction.
Generously assuming that the 39 hours of pre-case development was necessary to
gather facts and research the legal particulars of this case, the court will make the
reduction to the remaining 81.5 hours spent on the initial filings in this case. The court
believes that preparation of the complaint and the preliminary injunction motion after
thorough case development should not have taken more than 25 hours total, requiring a
reduction of 56.5 hours from the 81.5 hours claimed on the billing statements.
Therefore, using attorney Kellum’s hourly rate, the court will subtract $22,600 from
Plaintiffs’ fee request.
2. Staffing
The court also notes that the use of local counsel was excessive. There are
numerous entries for correspondence between attorneys Kellum and Helzer about
every step of the litigation up through April of 2018 when Helzer's involvement tapered
off. She entered 46 hours of time spent on the case and discounted 3.1 hours, leaving
a total of 42.9 hours claimed for her time. Not including the hours already discounted by
Helzer and not including the 15.25 hours she spent on and before October 31, 2018,
when Kellum became counsel, Helzer spent about 27 hours consulting and
corresponding with Kellum and reviewing Kellum's work product. Kellum spent
approximately 13 hours corresponding and consulting with Helzer about matters not
19Grisham v. City of Fort Worth, No. 4:15-cv-324-A, 2016 WL 8606770 (N.D. Tex.
Dec. 16, 2016).
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related to tasks already accounted for in this order. The court believes that given
Kellum’s solid understanding of the facts of this case—demonstrated through his time
entries devoted to case review and development—and his First Amendment expertise
for which he was hired, there was no significant need by Kellum to have numerous
consultations with Helzer, particularly on the substance of his memorandums and
filings. In other words, the court concludes that a prevailing attorney would have written
off a portion of these consultations for a paying client. The court will reduce Helzer's
time for these consultations and tasks by 17 hours, which amounts to a $5,525
reduction. It will reduce Kellum's time from 13 hours to 5 hours for a reduction of
$3,200.
Additionally, the court identified several instances where both attorney Kellum
and attorney Helzer handled daily litigation management. Kellum billed about 5 hours
on small miscellaneous tasks related to local rules, phone calls to court staff, and
reviewing routine orders, which were also reviewed by Helzer. The court finds this time
duplicative. They are also unnecessary tasks for an attorney charging $400 per hour.
The court will therefore take $2,000 off the requested total to account for these 5 hours.
3. Rule 26(f) Conference
The attorneys spent about 11 hours preparing for and conducting the Rule 26(f)
conference. Plaintiffs argue that these charges are reasonable because preparing for a
conference constitutes “‘careful compliance with the attorneys’ responsibilities.’”20 They
note that the time spent preparing for the conference included coordinating multiple
schedules and preparing for possible negotiations about a settlement. Given the
purpose and nature of such a conference and the fact that the court provides a standard
form for the parties to complete in conjunction with that conference, 11 hours appears to
be a bloated amount of time to charge for such tasks. The court believes at least some
20Doc. 48 at p. 7 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th Cir.
2001).
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reduction is warranted but not a large one, giving some weight to the fact that attorney
Kellum was also preparing for potential negotiations and the Municipality did not provide
rebuttal evidence to show that there were no talks of settlement at the conference. The
court will cut 4 hours from attorney Mangini’s time, since he was the one claiming the
majority of time on the matter. That results in a reduction of $800.
4. Media-related entries
The court noticed that attorney Helzer billed time for media-related
communications and tasks. These tasks are not necessary to the litigation and are “the
kinds of activities that attorneys generally do at their own expense.”21 It is difficult for
the court to assess exactly how much time she spent on such activities because her
time entries are blocked by day rather than discrete tasks. The court estimates that 3.5
hours should be reduced for a total reduction of $1,137.50 from the requested fee
amount.
C. Final Lodestar Figure
Plaintiffs request a total of $79,143.18 in attorneys’ fees and costs. Adjusting for
the excessive and unnecessary time spent on the case, the court concludes that the
final lodestar figure amounts to $43,300.00. A reduction of this nature is in line with
other courts considering the reasonableness of fee requests by attorney Kellum.22 For
example, in Henderson v. Crimmins23, the court reduced Kellum's time spent on the
complaint and motion for preliminary injunction by 45 hours and found that the
reasonable amount of time spent on the case in total was around 70 hours. The court
also reduced Kellum's fees based on other factors, including the fact that courts
21Gates v. Gomez, 60 F.3d 525, 535 (9th Cir. 1995).
22See Henderson v. Crimmins, 147 F. Supp. 3d 780, 787 (N.D. Iowa 2015) (listing cases
where Kellum’s fee requests have been “slashed for being excessive”); Deferio v. City of
Syracuse, No. 5:16-cv-361, 2018 WL 3069200, at *7 (N.D.N.Y. June 21, 2018) (listing cases
where Kellum’s fees have been reduced).
23147 F. Supp. 3d 780 (N.D. Iowa 2015).
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continue to send him the message to “[s]top submitting such wildly excessive requests
for attorney fees."24 In Grisham v. City of Fort Worth25, the court found that spending
66.5 hours on preparation of the complaint and a motion for preliminary injunction was
excessive and reduced the number of hours to 30.26 The court in Corral v. Montgomery
County27 also reduced the hours Kellum spent on the complaint and preliminary
injunction from 163.4 hours to 100 hours. In Gros v. New Orleans28 the court reduced
Kellum's hours spent on co-counsel communications by 75% and then reduced the
remaining number of hours by 50% describing the claimed hours as "grossly
excessive."29
D. Adjustments based on remaining Kerr factors
The adjustments made to the lodestar amount subsume most of the Kerr factors.
That is, in determining what was a reasonable rate to charge and a reasonable amount
of time to spend on the case, the court already considered the time and labor needed,
the novelty of the issues, skills and experience of the attorneys, the fees and amounts
involved, and awards in other cases. The remaining Kerr factors, such as preclusion of
other employment, time limitations imposed, or desirability of the case, do not support
any further adjustments to the fee award.
24Id. at 791.
25No. 4:15-cv-324-A, 2016 WL 8606770 (N.D. Tex. Dec. 16, 2016).
26Id. at *4 (“If the City of Fort Worth is willing to accept 30 hours as an appropriate
number for preparation of the initial pleadings, the court likewise is accepting that number, even
though the court continues to believe that anything more than 20 hours for that work would be
excessive.”).
2791 F. Supp. 3d 702 (D. Md. 2015).
28Nos. 12-2322, 12-2334, 12-2374, 2014 WL 2506464 (E.D. La. June 3, 2015).
29Id. at *11-12.
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V. CONCLUSION
Based on the foregoing, Plaintiffs’ motion for attorneys’ fees and costs is
GRANTED IN PART. Plaintiffs are awarded a total of $43,880.68, consisting of
$43,300.00 in attorneys’ fees and $580.68 in costs. The court will leave it up to
Plaintiffs and their attorneys on how to divide the award between co-counsel based on
the findings herein.
DATED this 20th day of February 2019.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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