Allenmore Medical Investors, LLC v. City of Tacoma

          ORDER ON FEES DKT. #145

          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on Plaintiff Allenmore Medical Investors' Motion for Fees and an Award of Prejudgment Interest [Dkt. #145]. This case asked the Court to consider whether the Defendants City of Tacoma and its councilmembers discriminated against Plaintiff AMI by interfering with its efforts to develop a shopping center with Walmart as the anchor tenant. It was hard fought. Defendants prepared a motion for judgment on the pleadings and three motions for summary judgment (two considered by the Court, one of which included oral argument). After a twelve-day bench trial, the Court dismissed AMI's claims against the individual councilmembers, who it determined had legislative immunity, but found the City liable for harming AMI. It awarded AMI $2, 026, 391.00-approximately 2/3 of its total compensatory damages request.

         AMI's counsel, Rafel Law Group, now requests its attorney's fees under 42 U.S.C. § 1988(b). RLG asks the Court to enhance its total fee award beyond the amount AMI owes it because RLG's fees are lower than the market rate and it obtained “substantial success.” AMI asks the Court to award it prejudgment interest. The City does not dispute the reasonableness of RLG's rates but argues the Court should reduce RLG's total award because it was unsuccessful on its claims against the councilmembers and because it billed unnecessary time. The City opposes an enhancement because it disagrees this case is one of the “rare and exceptional” circumstances when one might be warranted. It also argues against prejudgment interest on the ground that Court awarded AMI its compensatory damages already.

         I. DISCUSSION

         RLG is a small Seattle law firm practicing construction and real estate litigation. Anthony Rafel, an attorney with 35 years of experience, is the managing partner. Paul Raskin, who has practiced for 24 years, is his partner. Rafel and Raskin performed the majority of the work on this case. Tyler Ellrodt worked as of counsel. He has 37 years of experience. RLG hired temporarily Lynne Wilson, a contract associate with 29 years of experience. Christina Schuck, who has six years of experience, and Timothy Feth, who was admitted to the bar in 2016, work as the firm's associates. Ellrodt, Wilson, and Feth each spent around 150 hours on the case. Shuck spent even less. Trish Bashaw, a senior paralegal with 40 years of experience, was the only paralegal assigned to the case. Only Rafel worked on it from its inception.

         RLG claims it spent 3, 410.70^[1] total hours pursuing AMI's claims, and incurred $1, 051, 872.50 in total attorney's fees. It proposes this amount as the lodestar, to which it asks the Court to apply a 20% enhancement.

Name	Hourly Rates	Average Rate[2]	Total Hours Worked	Total Fees Charged (Proposed Lodestar)
Anthony Rafel	2012: $360 2013: $360 2014: $375 2015: $375 2016: $375 2017: $400	$383.03	1128.8	$432, 360.50
Paul Raskin	2016: $350 2017: $375	$360.69	1002.5	$361, 592.50
Tyler Ellrodt	2014: $350 2015: $350	$350.00	137	$47, 950.00
Lynne Wilson	2015: $285	$285.00	176.4	$50, 274.00
Christina Shuck	2012: $225	$225.00	15.4	$3, 465.00
Timothy Feth	2016: $175 2017: $200	$186.71	154.8	$28, 902.50
Trish Bashaw	2013: $160 2014: $160 2015: $160 2016: $160 2017: $160	$160.00	795.8	$127, 328.00
Totals			3410.7	$1, 051, 872.50
Total with Enhancement				$1, 262, 247.00

         A. Attorney's Fees.

         “The general rule in our legal system is that each party must pay its own attorney's fees and expenses…but Congress enacted 42 U.S.C. § 1988 in order to ensure that federal rights are adequately enforced” by providing “that a prevailing party in certain civil rights actions may recover ‘a reasonable attorney's fee as part of the costs.'” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 1671, 176 L.Ed.2d 494 (2010) (citing Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). A “reasonable fee” is one that “is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case” without producing a windfall to attorneys. Id. at 552. Courts determine this number using “a two-step hybrid lodestar/multiplier approach.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 (9th Cir. 2007). The Court first establishes a lodestar by multiplying a reasonable hourly rate by the number of hours reasonably expended on the litigation. See id.; see also Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). Second, in rare and exceptional cases, the Court may adjust the lodestar upward or downward using a multiplier based on facts not subsumed in the lodestar calculation. See Perdue, 559 U.S. 554-55. The party seeking fees bears the burden of proof; it must submit evidence supporting the rates and hours claimed. See Hensley, 461 U.S. at 433.

         1. Reasonable Rate.

         RLG claims its rates are below market. It supports its argument with a declaration from James Savitt, a Seattle-based commercial litigator; prior attorney's fee awards granted by the Court in other cases; and descriptions of the background of most^[3] of the employees on the case. The City does not dispute RLG's employees' hourly rates.

         An hourly rate is reasonable if it falls within the range of “prevailing market rates in the relevant community, ” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), given “the experience, skill, and reputation of the attorney requesting fees.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.). Courts do not determine this rate by referring to the rates actually charged. See Chalmers, 796 F.2d 1205, 1210 (9th Cir. 1986). Rather, the reasonable rate is based on the prevailing market rate for similar services. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (citing Carson v. Billings Police Dep't, 470 F.3d 889, 892 (9th Cir. 2006) (holding the district court properly reduced the “reasonable rate” because the market rate-not the individual contract between the applicant attorney and the client-“provides the standard for lodestar calculations”)).

         Rafel and Raskin are experienced attorneys who showed great adeptness, poise, and resiliency before the Court, on paper and at trial. They represented AMI well. Savitt claims their rates, and their colleagues' rates, are reasonable but lower than the market average. Rafel, Raskin, and Ellrodt, each of whom has over 20 years of experience, charged between $350 and $400/hour. Savitt contends $450/hour for their levels of experience, ability, and this type of case is more common, although he has even seen commercial litigators' rates exceeding $600/hour. He contends RLG's associates' and Bashaw's rates are also “within the norms of this community for commercial litigation associates” but “at the lower end of the range.” Dkt. #157 (Savitt Dec.) at 3. He does not detail what civil rights attorneys typically make per hour in Seattle, which is noteworthy because the civil rights (violations of equal protection and due process) aspect of this litigation justify shifting fees.

         In the Court's experience, RLG's partner rates are at the lower end of the market range for both real estate and civil rights litigation, but they are within range. RLG and AMI agreed how much AMI would pay RLG's employees for their services per hour. This is not the type of case where unless RLG offered an indigent or destitute AMI a significant discount below its normal rates, AMI's civil rights would not have been vindicated. Rather, a skilled businessman and a successful law firm reached an agreement that induced RLG to accept representation; clearly the market welcomes the rates RLG charges. And while RLG's partner's rates are lower than they could be, Rafel and Raskin performed approximately seven times the amount of work as their associates. If they had charged more but had tasked their associates with researching and drafting more, RLG's total fee request likely would mirror its present request. RLG's partners' lower-than-they-could-be-but-still-in-the-market rates appear to represent a trade-off for the partners' heavy involvement and need to keep costs reasonable. To adjust RLG's rates to the middle or higher end of the spectrum would contravene Congress's intent when it allowed for fee shifting in civil rights cases because it would either produce a windfall to RLG or would equate to a punitive damage award for AMI. RLG's rates are reasonable as they stand.

         2. Hours Reasonably Expended.

         RLG claims it spent 3, 410.7 hours working on AMI's case. The City (1) argues RLG should not receive compensation for time spent pursuing claims on which it lost, and so asks the Court to reduce Rafel's and Raskin's hours by 20%. It requests a reduction of 222 hours (or $84, 972.72) for Rafel and 196.6 hours (or $70, 854.64) for Raskin. The City (2) also argues the Court should reduce RLG's total time by 218.775 hours (or $67, 089.62) to properly eliminate duplicative, redundant, and unnecessary work. RLG argues all of its work was reasonable and necessary-as evidenced by the fact that AMI paid it without dispute and without knowing whether it would prevail-and to grant the City both of these categorical deductions would be to double-count hours against RLG.

         i. Time Spent on Unsuccessful Claims.

         The City argues the Court should not award RLG fees for the time it spent pursuing its unsuccessful claims, such as the claims it brought against the individual councilmembers. It asks the Court to deduct the time RLG spent opposing the dismissal of these claims. It suggests a 20% reduction in Rafel's and Raskin's time. RLG argues that because all of AMI's claims were based on a single set of facts, and because the Court awarded AMI nearly all of its requested damages, the Court should not carve out a reduction for its unsuccessful claims.

         When a plaintiff brings multiple claims and only prevails on some, whether his counsel receives fees for pursuing the unsuccessful claims depends on the interconnectedness of his claims. See Hensley, 461 U.S. at 435. If plaintiff's claims involve “a common core of facts or [are] based on related legal theories, ” the Court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation” when awarding fees. Id. The Court should note that while a wholly compensatory fee may be appropriate, “the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may [just as easily] be an excessive amount” given the partial or limited success. Id. at 436. If a plaintiff instead brings “distinctly different claims for relief that are based on different facts and legal theories, ” the Court should not award counsel fees for his unsuccessful claims because the time spent on those claims “cannot be deemed to have been expended in pursuit of the ultimate result achieved.” Id. at 435. (internal quotations omitted).

         RLG presented a unified story: The City, through its councilmembers, repeatedly attempted to block AMI's development of a shopping center housing Walmart as an anchor tenant. It claimed the Defendants wrongly singled out AMI to stop or delay Walmart from entering Tacoma. Especially considering the relationship between the Defendants, RGL would have been remiss not to pursue claims against both. ...