United States District Court, D. Nebraska
JAMES L. DEAN, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. LOIS P. WHITE, as Personal Representative of the Estate of Joseph White, deceased, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. KATHLEEN A. GONZALEZ, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. THOMAS W. WINSLOW, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. ADA JOANN TAYLOR, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. DEBRA SHELDEN, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
matter is before the court on Plaintiffs' Motion for
Attorney Fees and Costs (Filing No. 565),
pursuant to 42 U.S.C. § 1988. Although the motion is
made jointly, the court concludes it is required to enter a
separate judgment for each Plaintiff in these consolidated
1988 makes the prevailing party eligible for a
discretionary award of attorney's fees.”
Venegas v. Mitchell, 495 U.S. 82, 87 (1990)
(emphasis in original). That is to say, the award belongs to
the client, not to his or her attorney. Section 1988
“controls what the losing defendant must pay, not what
the prevailing plaintiff must pay his lawyer.”
Id. at 90 (holding that § 1988 does not
invalidate contingent fee contracts that would require
prevailing plaintiff to pay attorney more than statutory
award against defendant).
while Plaintiffs' motion and supporting brief list dollar
amounts they contend should be awarded for work performed and
expenses incurred by six attorneys of record, it is necessary
to identify who represents whom. Because four of the
Plaintiffs are represented by the same attorneys, and no
separate timekeeping and billing records were kept, it will
also be necessary to apportion fees and expenses equally
among the four of them.
L. Dean (Case No. 4:09CV3144) is represented by Herbert J.
Friedman. “Mr. Friedman has requested an hourly rate of
$300/hour for 1739.3 hours of work by himself [i.e.,
$521, 790.00]; $195/hour for his associate Steve Sael for
228.85 hours of work since February 2016, [i.e.,
$44, 605.25], for his associate Randi Froug for 83 hours of
her work [i.e., $16, 185.00], and for his associate
Dan Friedman for 0.1 hour of his work [i.e.,
$19.50]. He also asked for $65/hour for 393.70 hours of
paralegal time [i.e., $25, 590.50], and $45/hour for
44.5 hours of law clerk time [i.e., $2, 002.50], and
$21, 755.97 [for expenses]. Mr. Friedman's total
fee/expense request is $632, 177.47.” (Filing No.
566 at CM/ECF p. 15 (record citation omitted);
Filing No. 605 at CM/ECF p. 9.)
White, as Personal Representative of the Estate of Joseph
White, Deceased (Case No. 4:09CV3145), Kathleen A. Gonzalez
(Case No. 4:09CV3146), Thomas W. Winslow (Case No.
4:09CV3147), and Ada Joann Taylor (Case No. 4:09CV3148) are
all represented by Douglas J. Stratton, Jeffry D. Patterson,
and Robert F. Bartle. “Mr. Stratton has requested an
hourly rate of $200/hour for 1007.26 hours of work
[i.e., $201, 452.00] plus expense[s of $8, 591.16],
for a total request of $210, 043.16.” (Filing No.
566 at CM/ECF p. 13.) “Mr. Patterson has
requested hourly rates of $195/hour for his work at the
inception of his involvement in this case, and $250/hour for
his work after his hourly rate increased in April 2014, for
2180 hours of work, for a total fee request of $466,
096.50.” (Filing No. 566 at CM/ECF p. 11). Mr.
Patterson has also requested expenses of $11, 000.25. (Filing
No. 567-2 at CM/ECF p. 34.) “Mr. Bartle has
requested an hourly rate of $250/hour for his 511 hours of
work on this case, for a total fee request of $127,
750.00.” (Filing No. 566 at CM/ECF p. 12.)
“He has also asked for $45/hour for time contributed by
law clerk Nathan Stratton, for a total of $5,
625[.00.]” (Filing No. 566 at CM/ECF p. 12.)
The combined total for Mr. Doug Stratton, Mr. Patterson, and
Mr. Bartle is $820, 514.91. In addition, Mr. Patterson has
since requested $23, 725.00 in fees “for responding to
defendants' motion for judgment as a matter of law or new
trial, and for responding to defendants' opposition to
plaintiffs' motion for attorney fees.” (Filing No.
609-2 at CM/ECF p. 13.) This latest request brings
the total combined total for Mr. Stratton, Mr. Patterson, and
Mr. Bartle to $844, 239.91.
Shelden (Case No. 4:11CV3099) is represented by Maren L.
Chaloupka and Matthew K. Kosmicki. “Miss Chaloupka has
requested hourly rates of $195/hour for her work at the
inception of her involvement in this case, and $250/hour for
her work after her hourly rate increased in April 2014.
Including 1, 433 hours of her work at those rates
[i.e., $320, 212.00] plus $31, 876.18 in recoverable
expense, her request is for a total of $352, 088.18.”
(Filing No. 566 at CM/ECF p. 12.) Mr. Kosmicki “has
requested an hourly rate of $180/hour for 339.55 hours of
work, for a total fee request of $73, 939.00.” (Filing
No. 566 at CM/ECF p. 14.) The combined total for Ms.
Chaloupka and Mr. Kosmicki is $426, 027.18.
starting point in determining an attorneys' fee award
under § 1988 is the lodestar, which is calculated by
multiplying the number of hours reasonably expended by
reasonable hourly rates.” Snider v. City of Cape
Girardeau, 752 F.3d 1149, 1159 (8th Cir. 2014). “A
reasonable hourly rate is usually the ordinary rate for
similar work in the community where the case has been
Defendants do not dispute that the hourly rate for the
Plaintiffs' attorneys is reasonable with the exception of
the rates charged for Attorneys Randi Froug and Steve Sael,
” as to whom Defendants contend there was insufficient
information regarding their qualifications. (Filing No.
566 at CM/ECF p. 4.) That information has since been
provided (see Filing No. 606), and the court finds
that the requested hourly rate of $195 for Ms. Froug and Mr.
Sael is reasonable.
also contend there is “a lack of information regarding
the paralegals for Mr. Friedman, Mr. Bartle, and individuals
with the initial JEC and TBL contained within Mr.
Stratton's billings.” (Filing No. 566 at CM/ECF
p. 4.) Mr. Friedman responds that the fee for paralegal
time should be reduced by $8, 863.75 to eliminate work that
was “more secretarial in nature.” (Filing No.
605 at CM/ECF p. 5.) The court considers this
reduction to be appropriate. In all other respects, however,
the court finds the information provided regarding the
paralegals is sufficient, and that their hourly rates are
argue that a reduction in the lodestar is necessary for
insufficient documentation; duplication of work; the fact
that the Plaintiffs did not succeed on all claims, and the
inclusion of unrelated Attorney's fees.” (Filing
No. 566 at CM/ECF p. 4.) Defendants also argue that
“Plaintiffs are not entitled to attorney's fees for
the appeal work.” (Filing No. 566 at CM/ECF p.
32.) Finally, Defendants argue that “taxable costs
have been included in the Motion for Attorney's Fees and
Costs and should not be awarded on the Plaintiffs' Motion
and some of the costs have been included in Bill of Costs
that have been filed.” (Filing No. 566 at CM/ECF p.
4.) These arguments will be addressed briefly below.
party applying for attorney's fees and related nontaxable
expenses must support the application with appropriate and
reliable evidence and authority, including affidavits and any
written argument. Attorneys should follow appropriate
criteria in connection with fee applications.” NECivR
54.3(b). “Where a potential fee award issue exists,
attorneys should consult the Fee Application Guidelines in
Nebraska Civil Rule 54.4.” NECivR 54.3(c). Those
guidelines provide that the fee application should
“[i]dentify with particularity the work done”
(A) For a conference, state who was present, the subjects
discussed, and how long it lasted.
(B) For research, state who did it, the subjects and issues
researched, and whether the results were incorporated into a
brief, motion, or pleading.
(C) For travel time, segregate it, state who traveled, and
the purpose and mode of travel.
(D) For filings, identify the filing and who ...