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Bernbeck v. Gale

United States District Court, D. Nebraska

April 8, 2015

Kent Bernbeck, Plaintiff,
John A. Gale, Nebraska Secretary of State, Defendant.


JOSEPH F. BATAILLON, Senior District Judge.

This matter is before the court on the plaintiff's motion for an award of attorney fees and expenses, pursuant to Fed.R.Civ.P. 54(d) and 42 U.S.C. §1988. Filing No. 62. This is a civil rights action, brought by a citizen of Nebraska. The plaintiff filed this lawsuit pursuant to 42 U.S.C. §1983, alleging that defendants violated his rights under the First and Fourteenth Amendments to the United States Constitution. However, the court found for the plaintiff with respect to his Fourteenth Amendment claim, finding that Neb. Const. art. III §§ 2 and 4 violated the Equal Protection and Due Process Clauses of the United States Constitution by diluting urban votes. The court ordered injunctive relief. Filing No. 61.

Plaintiff, as the prevailing party, now seeks fees in the amount of $93, 175, with an upward adjustment of 50% to $139, 762.50 and costs of $2, 373.43 for a total of $142, 135.93. In support of the motion for attorneys' fees and costs, plaintiff submits (1) an itemized and detailed time records and cost entries; (2) the qualifications of counsel; and (3) affidavits attesting to the reasonableness of the fees and costs sought by the plaintiff. Filing No. 66; Filing No. 67.

The defendant opposes the award. The defendant contends that the total amount requested by the plaintiff needs to be reduced. Defendant argues that there must be a reduction in the award to reflect plaintiff's lack of success on some of the claims. The defendant also contends that, with respect to two of the plaintiff's attorneys, Megan Mikolajczyk and Christopher Mihalo, their rates are unreasonable and should be reduced to reflect the market rate for attorneys with their levels of experience. Defendant also contends that an enhancement of the Lodestar is not warranted, and that the cost of computerized research is not separately recoverable. Filing No. 70.


A. Lack of Success on All Claims

"In any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the 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). A lawsuit which includes several related legal theories based on a common core of facts should not be viewed as a series of discrete causes of action, and compensation should not be awarded on a claim-by-claim basis. In such a case, a counsel's time is devoted to litigation as a whole and compensation should be based on all hours reasonably expended to achieve a successful result. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). A court should compensate the plaintiff for the time his attorney reasonably spent in achieving the favorable outcome, even if the plaintiff failed to prevail on every contention. Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991). When a plaintiff has prevailed on some claims but not others, the plaintiff may be compensated for the time spent on unsuccessful claims that were related to his successful claims, but not for time spent on unsuccessful claims that were distinct in all respects from his successful claims. Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001); see also Hensley, 461 U.S. at 440. Claims are related and hence deserving of compensation, if they "involve a common core of facts" or are "based on related legal theories". Id. at 435.

The plaintiff contends that the two claims under the First and Fourteenth Amendments involved a common core of facts. His claims arose from his efforts to petition municipal governments across Nebraska to express support for reform of the initiative and referendum petition process. The plaintiff's objective was to make access to the ballot easier, because his efforts had been impeded by the state's geographic distribution requirement and prohibition against paying petition circulators on a per valid signature obtained basis. The plaintiff argues that his own interest in petitioning, and his desire to do so on a state-wide basis, form the background and basis for this case. Filing No. 72.

The defendant argues that the plaintiff's first claim, challenging the validity of the per-signature payment ban, is factually unrelated to his second claim challenging the constitutionality of the signature distribution requirement in the state constitution. The defendant also contends that the court's finding for the plaintiff's second claim on the ground of equal protection and due process is not a related legal theory to his first claim, which he argued were violations of the First and Fourteenth Amendments. Filing No. 70.

The court finds that these two claims share a common core of facts and related legal theories. The plaintiff's desire to have the ability to petition municipal governments and his interest in the referendum process provide the factual background for this case, and both claims arise out of that common core of facts. Both claims also shared related legal theories. On both claims, the plaintiff argued that the laws violated his First and Fourteenth Amendment, and this court found for the plaintiff on one of those legal theories. Because both claims shared a common core of facts and were argued under similar legal theories, reduction of the plaintiff's attorneys' fee for lack of success on all claims is not warranted.

B. Reduction of Rates Based on Experience

The plaintiff seeks an award for attorney's fees in the amount of $139, 762.50, after a 50% upward adjustment on a total Lodestar of $93, 175. The plaintiff had four attorneys and two paralegals work on his case. Plaintiff seeks the following hours and rates: David Domina, 139.9 hours at a rate of $400 an hour; Megan Mikolajczyk, 100.9 hours at a rate of $300 an hour; Brian Jorde, 2.9 hours at a rate of $350 an hour; Christopher Mihalo, 6.1 hours at a rate of $300 an hour; and two paralegals, totaling 41.9 hours at a rate of $100 an hour. The defendant only contests that the rates for Megan Mikolajczyk and Christopher Mihalo are unreasonable.

When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). The court should consider factors set forth in Johnson v Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir 1974). See McDonald v Armontrout, 860 F.2d 1456, 1459 (8th Cir 1988). Johnson called for consideration of twelve factors: (1) the time and labor required; (2) the novelty and difficulty of the question; (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 attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 1459 n. 4.

To determine what would qualify as a reasonable rate in the prevailing Omaha market, the court reviewed and analyzed reported decisions from this court over the past several years involving attorney fee awards. See United States v. $104, 160.00 in U.S. Currency, No. 8:08CV463, 2009WL 3839340, at 2 (D.Neb. Nov. 17, 2009) (Bataillon, J.) ($200 hourly rate for experience Omaha attorney representing claimant in civil forfeiture action was reasonable in this locality); Sheriff v. Midwest Health Partners, P.C., No. 8:07CV475, 2009 WL 2992513, at 10 (D.Neb. Sep. 16, 2009) (Thalken, M.J.) (in Title VII action, Omaha attorneys' hourly rates of between $200 and $300 appeared consistent with hourly rates in relevant market based on evidence in record); Lohmeier v. Bancwise Real Estate Services, L.L.C., No. 8:06CV578, 2008 WL 351657, at 2 (D.Neb. Feb. 7, 2008) (Smith Camp, J.) ($200 hourly rate for Omaha attorney with more than 30 years' litigation experience reflected appropriate market rates for services provided in ADEA case); Bowen v. Allied Prop. & Cas. Ins. Co., No. 4:11CV3163, 2013 WL 942443, at *5 (D. Neb. Mar. 11, 2013) (Kopf, J.) (amounts $275, $210, and $175 were found to be reasonable rates for attorneys of varying experience, with the ...

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