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Dean v. Gage County

United States District Court, D. Nebraska

September 6, 2016

JAMES L. DEAN, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants. LOIS P. WHITE, as Personal Representative of the Estate of Joseph White, deceased, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants. KATHLEEN A. GONZALEZ, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants. THOMAS W. WINSLOW, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants. ADA JOANN TAYLOR, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants. DEBRA SHELDEN, Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on Plaintiffs' Motion for Attorney Fees and Costs (Filing No. 565), [1] filed 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 cases.

         “Section 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).

         Thus, 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.

         James 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.)[2]

         Lois P. 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.[3]

         Deb 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.[4]

         “The 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 litigated.” Id.

         “The 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.

         Defendants 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 reasonable.

         “Defendants 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.

         1. Timekeeping Records

         “A 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” and:

(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 ...

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