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Roberts v. City and County of Honolulu

United States District Court, D. Hawaii

June 3, 2016



          Alan C. Kay Sr. United States District Judge

         For the 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.


         On 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.

         On 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.[1] 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.

         Defendant 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.

         On 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.

         Following 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.

         On 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.

         After 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 at 2.

         On 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 21.

         Plaintiff 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. 27.


         A 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).

         “[The] 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).

         Objections 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 id.


         In his 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.

         In his 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]; (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.

         Plaintiff 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, at *2.

         I. Entitlement to Attorneys’ Fees and Costs

         A 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).

         The 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.

         II. Calculation of Attorneys’ Fees

         Courts 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).

         Once 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.

         a. Hourly Rate

         Plaintiff 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 8-10.

         In 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.

         In 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).

         Plaintiff 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 ...

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