While I do not make it a practice to sue the police, officers do make mistakes and sometimes abuse the law. When they do, they should be held accountable. Similarly, when lawyers make mistakes or abuse the law, they should be held accountable as well. Just like bad police officers, it only takes one to reflect poorly on the entire profession. These DOJ lawyers have finally been called out for their unprofessional conduct. Their employer should take note of this decision and hold them accountable. This behavior reflects poorly on our entire profession.
Here is the opinion:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JUSTIN MICHAEL WILKENS,
ROBERT WAYNE EDWARDS, in his
individual capacity; THE STATE OF
Case No. 6:14-cv-00907-MC
OPINION AND ORDER
Plaintiff Justin Wilkens seeks attorney fees in the amount of $343,717.36 following a jury trial and award totaling $181,169.62. The jury awarded Plaintiff$19,749.05 in economic damages, $100,000.00 in noneconomic damages, and $50,000.00 in punitive damages based on an excessive force claim brought under 42 U.S.C. §1983. ECF No. 135. The jury also awarded Plaintiff $11,420.57 based on a negligence claim against Defendant State of Oregon. Id.
Defendants concede that Plaintiff is the prevailing party, but dispute the amount that should be awarded.1 As the prevailing party, Plaintiff may properly recover reasonable costs and fees pursuant to 42 U.S.C. § 1988(b). For the reasons below, the court GRANTS Plaintiffs fee petition, ECF No. 135, in PART, and awards Plaintiff the reduced amount of $318,689.48 in attorney fees and the reduced amount of $17,141.39 for his costs.
The Ninth Circuit applies the “lodestar” method for calculating attorney fees. Fischer v.SJB-P. D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933 (1983). The court then decides whether to enhance or reduce the lodestar figure by evaluating a set of factors. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). A “strong presumption” exists that the lodestar figure represents a “reasonable fee,” and it should therefore only be enhanced or reduced in “rare and exceptional cases.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).
1 Confoundingly, Defendants dispute that Plaintiff prevailed on his negligence claim against Defendant State ofOregon, stating that “only one of two defendants was included on the verdict form, presumably meaning the State ofOregon was dismissed from the case.” Def:’s Response, 2, ECF No. 143. As Plaintiff properly points out, “the Stateof Oregon was only removed as a named defendant on the verdict form in order to alleviate potential confusion withthe jury deliberations.” Pl.’s Reply, 3, ECF No. 149. The court discussed this matter with both parties prior toinstructions and defense counsel agreed that the State of Oregon would be removed from the verdict form eventhough any judgment on Wilken’s negligence would be a judgement against the State Defendant. Plaintiff is theprevailing party on both his excessive force claim and his negligence claim, see ECF No. 130, despite Defendants’deliberate misinterpretation of the verdict form.
I. Motion for Attorney Fees
The parties’ briefs surrounding Plaintiffs petition for attorney fees raise a host of issues and minor disputes. In determining the reasonableness of fees, the court is not required to respond to each specific objection. Gates v. Deukmajian, 987 F.2d 1392, 1400 (9th Cir. 1992).Rather, all that is required is a “concise but clear” explanation of reasons for the fee award. Id.
A. Reasonable Hourly Rates
Courts apply prevailing market rates for purposes of§ 1988 fee determinations. Blum v.Stenson, 465 U.S. 886, 895, n.11, 104 S. Ct. 1541 (1984). Prevailing market rates are those that the local legal market would pay for a case of this nature to a lawyer of comparable skill,experience, and reputation to a plaintiffs counsel of record. Id. at 897. Accordingly, courts in this District have determined that they will use the Oregon State Bar 2012 Economic Survey as their initial benchmark when reviewing fee petitions.2 Exceptional circumstances may be taken into account for an enhancement of the lodestar figure, including when the prevailing rate does not account for the true market value of an attorney or when litigation includes extraordinary expenses or is exceptionally protracted. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1674-75, 176 L. Ed. 2d 494 (2010).
Eugene, Oregon attorneys Lauren Regan and Marianne Dugan both seek an hourly rate of$375. Ms. Regan and Ms. Dugan fall in the “16-20 Years” and “21-30 Years” experience rangeof the Economic Survey’s billing analysis, respectively. ECF Nos. 137, 139. Eugene, Oregon attorney Cooper Brinson seeks an hourly rate of $195. Mr. Brinson falls in the “0-3 Years”experience range. ECF No. 138.
2 The economic survey is available at https://www.osbar.org/ _ docs/resources/Econsurveys/12EconomicSurvey.pdf.I note that Plaintiffs counsel point to a 2008 survey that is specific to the Civil Rights Section of the Oregon StateBar, but I do not apply that survey due to the fact that this District has opted to apply the 2012 Economic Survey, see https://www.ord.uscomis.gov/index.php/court-info/court-policies/fee-petitions. Further, I note that the 2008 survey’s 20.3% response rate (55 persons of 271), wide range of hourly rates, and lack of geographical indicators render it unreliable for the purposes of the prevailing market rate inquiry. See ECF No. 137-3
Defendants object and assert that hourly rates for all three attorneys exceed reasonable rates for counsel in the Lower Willamette Valley area of the Economic Survey. According to the Economic Survey, the median hourly billing rate for plaintiff-side civil litigation attorneys in private practice in the area is $225, while the 25th percentile is $175 and the 75th percentile is$275. The prevailing market rates for Plaintiff’s attorneys based on their years of experience are:
|25th Percentile||Median||75th Percentile/td>||95th Percentile|
Plaintiff’s attorneys cite a number of reasons for their requested hourly rates, including the difficulty of this case, the specialization required, and their expertise in the subject matter of this litigation. I have considered all of Plaintiff’s assertions in support of and Defendants’ objections to the requests for increased hourly rates. After careful consideration, I apply the 95th percentile hourly rate found by the Oregon State Bar 2012 Economic Survey for Ms. Dugan and Mr. Brinson. I adjust these rates for inflation to an hourly rate of$325.71 for Ms. Dugan and$178.12 for Mr. Brinson. 3
With regard to Ms. Regan, the lead counsel in this case, the prevailing market rates do not adequately address her level of experience, her reputation in the state as a civil rights attorney, the risks associated with civil rights litigation, the lack of adequately trained and available attorneys in the Eugene area willing to take on this work, and the unique difficulties presented in the litigation of this case. I find her requested hourly rate to be reasonable after considering all of these factors.
3 This adjustment was performed using the Bureau of Labor Statistics Consumer Price Index (“CPI”) Inflation Calculator, available at http://www.bls.gov/data/inflation_calculator.htm. That calculator uses the average CPI for a given calendar year using the latest monthly index value to represents changes in prices of all goods and services purchased for consumption by urban households.
II. Bill of Costs
Plaintiffs Bill of Costs itemizes $16,496.36 in general trial expenses and expert fees and$4,805.00 in fee declarant expenses, for a total of $21,201.36.
Defendants object to (1) $80 witness fees for the Lane County Sheriffs Department for alack of explanation; (2) $10 ambulance account report for a lack of documentation; (3) $21.49 for trial materials from an office supply store for a lack of documentation and asserting that office supplies should be considered overhead; (4) $2,090.00 for Exam Works testimony costs for a lack of documentation, (5) $37.50 for Pacer research, asserting that this should be considered overhead; (6) expert fees, generally, assetiing that§ 1988 does not allow an award of expert witness fees on § 1983 claims; (7) $2,500.00 for “trial testimony fees” for Dr. Boespflug because he did not testify at trial; (8) $3,000.00 for “trial testimony fees” for Dr. Sheerin because he was not designated as an expert and for lack of documentation; (9) $800.00 and $347.47 for”expert witness fees” for Gary Monteleone and Bill Cole, respectively, for lack of documentation; (10) two separate fees of$1,675.00 and $1,237.50 in expert fees for Dr.Robertson for lack of documentation; and, finally, (11) $1,575.00 and $3,230.00 for “fee declarant/expert fees” for Ms. Middleton and Ms. Creighton, respectively, asserting that such fees are not recoverable.
A. General Objections
Upon careful consideration of Defendants’ objections and Plaintiffs cited reasons for seeking the relevant fees, I dismiss Defendants’ objections (1)-(5), (7), and (8). See Pl.’s Reply,3, ECF No. 149; see also id. at 4, n.1 (explaining the fee bases for Drs. Boespflug and Sheerin).B. Expert Fees Regarding Defendants’ expe1i witness fee objections (6), (9), and (10), I turn back to Quesnoy v. Oregon, which considered a petition seeking expert fees following a plaintiffs successful § 1983 claim. The relevant holding in Quesnoy reads:
In 1991, the Supreme Court held that§ 1988 does not authorize the shifting of expert witness fees to the losing party. West Virginia Univ.Hosp., Inc. v. Casey, 499 U.S. 83 (1991). After Casey, Congress amended§ 1988 to allow the court, “in its discretion,” to award expert witness fees “in any action or proceeding to enforce a provision of section 1981 or 1981a of this title.” 42 U.S.C. § 1988(c). This amendment does not include claims brought under§ 1983. Ashker v. Sayer, No. 05-03759CV, 2011 WL 825713, at *4 (N.D. Cal. Mar. 7, 2011); Rtif.fv. County ofKings, 700 F. Supp. 2d 1225, 1243 (E.D. Cal. 2010); Agster v. Maricopa County, 486 F. Supp. 2d 1005, 1019 (D. Ariz. 2007). Thus,§ 1988 does not allow an award of expert witness fees to plaintiff for prevailing … onher § 1983 claim.
2012 WL 1155832, at *10 (citations updated). I agree with this analysis and the findings of the various courts that have recognized the effect of Casey and the subsequent amendment to§ 1988. I find that expert fees are not available to a prevailing plaintiff fora § 1983 claim, and I accordingly reduce Plaintiffs Bill of Costs by those amounts a tissue in Defendants’ objections (9) and (10), which total $4,059.97.
C. Fee Declarant Fees
Finally, I dismiss Defendants’ objection (11) to the fees sought for the assistance of Ms. Middleton and Ms. Creighton. The Ninth Circuit has held that counsel may”solicit the assistance of other lawyers in working on a case, however, and the time spent by all lawyers on a litigation can be billed so long as the hours claimed are not duplicative.” Davis v. City and Cty. of San Francisco, 976 F.2d 1536, 1544 (9th Cir.1992). Nothing in the record before me indicates that the work of Ms. Creighton or Ms.Middleton was duplicative of Plaintiffs trial counsel.
Upon careful consideration of the record, I find that Ms. Middleton and Ms.Creighton acted as fee counsel, and that “time spent by counsel in establishing the right to a fee award is compensable,” and such compensability extends to situations in which a plaintiff hires “an additional lawyer to act as fee counsel.” Davis, 976 F.2d at 1544.
Based on the above, Plaintiffs Bill of Costs is reduced to $17,141.39.
For the reasons stated above, Plaintiff’s Motion for Attorney Fees, ECF No. 135, is GRANTED in the reduced amount of $318,689.48, and Plaintiff’s Bill of Costs, ECF No. 135, is GRANTED in the reduced amount of$17,141.39.
IT IS SO ORDERED.
Dated this day of March, 2016.
Michael McShane United States District Judge