United States District Court, D. Hawaii
ORDER ADOPTING IN PART AND MODIFYING IN PART THE
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND
C. Kay Sr. United States District Judge
reasons set forth below, the Court ADOPTS in part and
MODIFIES in part the Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff’s Motion for
Attorneys’ Fees and Costs, issued by Magistrate Judge
Puglisi on March 24, 2016. ECF No. 24.
November 6, 2015, Plaintiff Andrew Namiki Roberts
(“Plaintiff") filed this action pursuant to 42
U.S.C. § 1983 against Defendant City and County of
Honolulu (“Defendant"). Verified Compl. for
Deprivation of Civil Rights (“Complaint"), ECF No.
1. In his Complaint, Plaintiff alleged that Defendant
violated his Second, Fourth, and Fourteenth Amendment rights
by refusing to issue firearms permits to permanent residents
such as himself, unless these permanent residents obtained
clearance documents from their country of origin or
consulate. Complaint at 1.
November 9, 2015, Plaintiff served Defendant with a copy of
the Complaint, along with a demand letter (“November 9
Demand Letter") indicating Plaintiff’s willingness
to settle if Defendant complied with a list of terms outlined
in the letter. Ex. C to Pl.’s Mot., ECF No.
12-10. The letter stated that Plaintiff intended
to file a Motion for Preliminary Injunction and/or Permanent
Injunction if his terms were not met, and that the demand was
good through the close of business on November 13, 2015.
Id. at 2. Among the terms was a request for $8,
549.60 in attorneys’ fees and costs for time spent on
the case. Id. at 2, 9.
failed to respond by the November 13 deadline. Pl.’s
Objs. to R. & R. Granting in Part and Den. in Part
Pl.’s Mot. for Att’ys Fees and Costs
(“Objections") at 5, ECF No. 25. Prior to the
deadline, Plaintiff’s counsel had attempted to contact
Defendant in order to identify the Deputy Corporation Counsel
assigned to the case, but was unsuccessful. Decl. of Richard
L. Holcomb in Supp. of Mot. for Att’ys Fees
(“Holcomb Declaration") ¶ 12, ECF No. 12-6.
On November 18, 2015, Plaintiff’s counsel received an
email from Curtis Sherwood confirming that he had received a
copy of the Complaint, but not the November 9 Demand Letter.
Id. ¶ 13. Plaintiff’s counsel emailed the
letter to Mr. Sherwood that day. Id.
November 24, 2015, Plaintiff’s counsel sent a follow-up
letter to Defendant detailing Plaintiff’s efforts to
contact Defendant about the case and again requesting a
response. Ex. D to Pl.’s Mot., ECF No. 12-11. The
letter further stated that Plaintiff’s demand for fees
and costs had increased to $12, 000, as Defendant’s
lack of response had caused counsel to begin drafting the
Motion for Preliminary Injunction referenced in the November
9 Demand Letter. Id. at 2. The next day, Mr.
Sherwood contacted Plaintiff’s counsel on behalf of
Defendant, noting that “the City is generally open to
settlement discussions." Ex. 1 to Def.’s
Opp’n at 1, ECF No. 21-2. Mr. Sherwood’s letter
also asked Plaintiff’s counsel to be mindful of the
attorneys’ fees issue, as that could complicate any
efforts to settle. Id. at 2. Finally, the letter
proposed that the parties hold a discovery conference on
December 4. Id.
Mr. Sherwood’s November 25 letter, the parties engaged
in “meaningful negotiations." Objections at 20. At
the December 4 discovery meeting, the parties tentatively
agreed to settle all issues, with the exception of the amount
of attorneys’ fees. Holcomb Declaration ¶ 18;
Decl. of Counsel (“Sherwood Declaration") ¶
24, ECF No. 21-1.
December 18, 2015, after further negotiations,
Plaintiff’s counsel emailed Defendant a proposed
settlement agreement. Ex. E to Pl.’s Mot., ECF No.
12-12. The email stated that if Plaintiff did not hear back
from Defendant by December 23, Plaintiff would file his
Motion for Preliminary Injunction on December 28.
Id. Defendant’s counsel did not respond until
December 28, when he reiterated the City’s willingness
to settle, but noted that the City still took issue with the
amount Plaintiff had requested for attorneys’ fees. Ex.
2 to Def.’s Opp’n, ECF No. 21-3; Holcomb
Declaration ¶ 24. Plaintiff’s counsel responded to
Defendant later that day, indicating that Plaintiff would be
filing his Motion for Preliminary Injunction that day, as
well as a Motion for Judgment on the Pleadings counsel had
begun drafting the day prior. Ex. I to Pl.’s Mot. at 1,
ECF No. 12-16. Neither motion was ever filed.
the parties exchanged several more drafts of the proposed
settlement agreement, a final Settlement Agreement was fully
executed on January 21, 2016. Holcomb Declaration
¶¶ 28-30; Sherwood Declaration ¶ 28; General
Release and Settlement Agreement (“Settlement
Agreement"), ECF No. 12-8. The Settlement Agreement
includes substantially all of the relief Plaintiff requested
in his Complaint. Compare Complaint at 29-30,
with Settlement Agreement at 2. On February 8, the
Court entered an Order and Stipulation for Dismissal of All
Claims and Parties with Prejudice (“Stipulation for
Dismissal"). ECF No. 15. Both the Settlement Agreement
and the Stipulation for Dismissal contemplated that the issue
of attorneys’ fees and costs would be decided by the
Court. Settlement Agreement at 4; Stipulation for Dismissal
February 4, 2016, Plaintiff submitted a Motion for
Attorneys’ Fees and Costs, requesting $46, 447.63 in
attorneys’ fees and $568.40 in costs. Mot. for
Att’ys Fees and Costs (“Pl.’s Mot."),
ECF No. 12. Defendant filed an Opposition to
Plaintiff’s Motion on February 19, 2016, Def.’s
Am. Mem. in Opp’n to Pl.’s Mot.
(“Def.’s Opp’n"), ECF No. 21; and
Plaintiff filed a Reply in support of its Motion on February
26, 2016, Reply to Resp. in Opp’n to Pl.’s Mot.,
ECF No. 22. On March 24, 2016, Magistrate Judge Puglisi
issued his Findings and Recommendation to Grant in Part and
Deny in Part Plaintiff’s Motion for Attorneys’
Fees and Costs (“F & R"). ECF No. 24. The F & R
recommends that the Court award Plaintiff $13, 912.04 in
attorneys’ fees and $400.00 in costs. Id. at
filed his Objections to the F & R on April 7, 2016. ECF No.
25. On April 21, 2016, Defendant filed a Response to the
Objections. Def.’s Resp. to Objections
(“Def.’s Resp."), ECF No. 26. Finally,
Plaintiff filed a Reply in support of his Objections on April
28, 2016. Pl.’s Reply to Def.’s Resp., ECF No.
district court reviews de novo those portions of a magistrate
judge’s findings and recommendation to which an
objection is made and “may accept, reject, or modify,
in whole or in part, the findings and recommendation made by
the magistrate judge." 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b); United States v.
Rivera-Guerrero, 377 F.3d 1064, 1070 (9th Cir. 2004);
L.R. 74.2. Under a de novo standard of review, the court
“review[s] the matter anew, the same as if it had not
been heard before, and as if no decision previously had been
rendered." Freeman v. DirecTV, Inc., 457 F.3d
1001, 1004 (9th Cir. 2006).
district court has discretion, but is not required, to
consider evidence presented for the first time in a
party’s objection to a magistrate judge’s
recommendation." Akhtar v. Mesa, 698 F.3d 1202,
1208 (9th Cir. 2012) (citation omitted). It may also consider
the record developed before the magistrate judge. L.R. 74.2.
The district court must arrive at its own independent
conclusions about those portions of the magistrate
judge’s report to which objections are made. United
States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989);
Benihana of Tokyo, LLC v. Angelo, Gordon & Co., Civ.
No. 15-00028 ACK- RLP, 2015 WL 5439357, at *2 (D. Haw. Sept.
14, 2015); see also United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“The
statute makes it clear that the district judge must review
the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise)
(emphasis in original).
to a magistrate judge’s recommendation are usually
treated as non-hearing motions to be decided on the
submissions. L.R. 7.2(e). The Court finds that a hearing in
this matter is neither necessary nor appropriate. See
Motion for Attorneys’ Fees and Costs, Plaintiff
requested a total of $46, 447.63 in attorneys’ fees and
$568.40 in costs. F & R at 2. In reducing these amounts, the
Magistrate Judge recommended a total award of $13, 912.04 in
attorneys’ fees and $400.00 in costs. Id. at
21. The Magistrate Judge reasoned that (1) counsel’s
requested hourly rates were not reasonable; (2) hours spent
on certain documents and tasks were excessive; (3) hours
billed for tasks performed by multiple attorneys were
duplicative; and (4) certain costs were not properly itemized
and documented. See generally F & R.
Objections, Plaintiff specifically objected to the following:
(1) the Magistrate Judge’s recommendation that attorney
Richard L. Holcomb receive $200.00 per hour, and that
attorney Alan A. Beck receive $150.00 per hour; (2) the
Magistrate Judge’s recommendation that Plaintiff
receive no compensation for work spent on certain unfiled
documents; (3) the Magistrate Judge’s deduction of
hours spent on the Motion for Attorneys’ Fees and Costs
and Reply in support thereof; (4) the Magistrate
Judge’s deduction of hours for duplicative billing; and
(5) the Magistrate Judge’s deduction of $168.40 in
costs associated with printing fees. Objections at 7-8.
did not object to the Magistrate Judge’s recommendation
that 2.7 hours be deducted from time spent by an unnamed
paralegal on clerical tasks. See F & R at 18. Nor
did Plaintiff object to a deduction of 0.5 hours from Mr.
Holcomb’s time for work on a retainer agreement.
See id. at 18-19. Therefore, having reviewed these
portions of the F & R for clear error, the Court ADOPTS these
recommendations. Benihana of Tokyo, 2015 WL 5439357,
Entitlement to Attorneys’ Fees and Costs
court, in its discretion, may award a prevailing party
reasonable attorneys’ fees as part of the costs in a
suit brought pursuant to 42 U.S.C. § 1983. 42 U.S.C.
§ 1988(b). In order to attain prevailing party status,
“a plaintiff must not only achieve some material
alteration of the legal relationship of the parties, but that
change must also be judicially sanctioned." Shapiro
v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d
857, 865 (9th Cir. 2004) (internal quotation marks omitted).
Magistrate Judge found that the parties’ Settlement
Agreement conferred prevailing party status on Plaintiff. F &
R at 6. Because neither of the parties objects, the Court
therefore ADOPTS the Magistrate Judge’s finding that
Plaintiff is a prevailing party entitled to an award of
attorneys’ fees and costs.
Calculation of Attorneys’ Fees
use the lodestar method in calculating an award of reasonable
attorneys’ fees in § 1983 cases. Cunningham v.
Cty. of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).
The lodestar amount is determined by “the number of
hours reasonably expended on the litigation multiplied by a
reasonable hourly rate." Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). Subsumed in the lodestar
calculation are the following factors: “(1) the novelty
and complexity of the issues, (2) the special skill and
experience of counsel, (3) the quality of representation, . .
. (4) the results obtained . . . and (5) the contingent
nature of the fee agreement." Morales v. City of
San Rafael, 96 F.3d 359, 364 n.9 (9th Cir.
1996) (internal citations and quotation marks omitted).
calculated, the lodestar amount is presumed reasonable.
City of Burlington v. Dague, 505 U.S. 557, 562
(1992); Fischer v. SJB-P.D. Inc., 214 F.3d 1115,
1119 n.4 (9th Cir. 2000). However, in “rare and
exceptional circumstances" a court may adjust the
lodestar amount based on those factors articulated in
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975), that are not subsumed in the court’s
initial lodestar calculation. Fischer, 214 F.3d at
1119 n.4; Morales, 96 F.3d at 363-64. These factors
are: the time and labor required for the case, the preclusion
of other employment by the attorney due to acceptance of the
case, the customary fee, time limitations imposed by the
client or the circumstances, the “undesirability"
of the case, the nature and length of the professional
relationship with the client, and awards in similar cases.
Kerr, 526 F.2d at 70.
objects to the Magistrate Judge’s recommendation that
Mr. Holcomb’s hourly rate be reduced from $300.00 to
$200.00, and that Mr. Beck’s hourly rate be reduced
from $225.00 to $150.00. Objections at 7. Mr. Holcomb is an
attorney with 11 years of experience, and Mr. Beck is an
attorney with 7 years of experience. See Holcomb
Declaration ¶ 35; Decl. of Alan Beck ¶ 3, ECF No.
12-7. Plaintiff contends that the declarations he submitted
in support of his Motion for Attorneys’ Fees and Costs
indicate that attorneys in this jurisdiction charge clients
higher rates than that requested by counsel for this case;
that the Magistrate Judge recommended counsel be awarded the
same rate they were awarded for work done four years ago; and
that the recommended rate is not adequate to attract counsel
to civil rights cases such as the instant case. Objections at
setting the reasonable hourly rate for purposes of the
lodestar calculation, courts will look to the
“prevailing market rates in the relevant
community." Gonzalez v. City of Maywood, 729
F.3d 1196, 1205 (9th Cir. 2013). “Generally, when
determining a reasonable hourly rate, the relevant community
is the forum in which the district court sits."
Id. (quoting Prison Legal News v.
Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010)). In
making its determination, a court will consider the
experience, skill, and reputation of the attorney.
Id. at 1205-06. “Importantly, the fee
applicant has the burden of producing ‘satisfactory
evidence’ that the rates he requests meet these
standards." Id. at 1206.
support of his Motion for Attorneys’ Fees and Costs,
Plaintiff submitted declarations from multiple attorneys
attesting to the hourly rates they bill clients. See
Decl. of Brian Brazier, ECF No. 12-2 (attorney with nine and
a half years of experience who bills clients $250.00 per
hour); Decl. of Frederick J. Arensmeyer, ECF No. 12-3
(attorney with ten years of experience who bills clients
$395.00 per hour); Decl. of Kevin O’Grady, ECF No. 12-4
(attorney with nineteen years of experience who bills clients
$350.00 per hour); Decl. of Joseph Rosenbaum, ECF No. 18-1
(attorney with six and a half years of experience who bills
clients $297.00 per hour).
asserts that these declarations show that the rates requested
for Mr. Holcomb and Mr. Beck are lower than the rates counsel
with similar years of experience charge clients, and that the
requested rates are therefore reasonable. Objections at 8,
16. Addressing this argument, the Magistrate Judge noted that
“the fees stated in the attorneys’ declarations
vary significantly without explanation." F & R at 9.
Then, taking into consideration “the Court’s
experience with attorneys’ fees motions, the
information provided by counsel, and the Court’s
knowledge of ...