United States District Court, W.D. Washington, 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
|
|
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.
...