In The United States District Court For The Southern District of Ohio Western Division

Transcription

1 In The United States District Court For The Southern District of Ohio Western Division American Broadcasting Companies, Inc., et al., Plaintiffs, vs. Jennifer L. Brunner, Case No. 1:04-cv-750 Judge Michael Watson Defendant. Defendant s Memorandum Contra Plaintiffs Motion For Attorneys Fees In their untimely motion for attorneys fees, the Plaintiffs have sought reimbursement at exorbitant rates which are simply not justified for attorneys practicing in the Southern District of Ohio. Rather, the Plaintiffs lawyers have sought to be compensated at New York City rates. Similarly, the rates sought by Ohio counsel are excessive when compared to standard fees for civil rights counsel in this district. In addition to charging excessive fees, many of the hours for which the Plaintiffs seek reimbursement are unnecessary or duplicative. Since the Plaintiffs lost 50% of the issues briefed to this Court, they failed to achieve a high degree of success on the issues in the case. They initially recognized their failure and filed a cross-appeal to the Sixth Circuit but now they apparently believe that their loss was a victory. Finally, many of the other costs and fees for which the Plaintiffs are seeking reimbursement simply are not eligible for reimbursement under 42 U.S.C Based upon well-established precedent, this Court should simply reject the Plaintiffs fee application. In the alternative, this Court should exercise its discretion to substantially reduce the fees sought by the Plaintiffs. 1

2 I. The Plaintiffs Fee Application is Untimely Motions for attorneys fees must be filed within fourteen days after an entry of judgment. Fed. R. Civ. P. 54(d)(2)(B). This provision was added in the 1993 amendments to the Civil Rules. The Rules Advisory Committee has noted that this provision establishes a procedure for presenting claims for attorneys fees, whether or not those fees are denominated as costs. Equal Employment Opportunity Comm n v. International Ass n of Fire Fighters, 2001 U.S. Dist. LEXIS at *3 quoting Advisory Committee Notes, Attached as Exh. A. Thus, this particular rule was intended to govern motions for attorneys fees even where the statute authorizing such fees refers to attorneys fees as costs, as opposed to characterizing attorneys fees as claims for damages. Id. As the Sixth Circuit recognized, prior to the 1993 amendment, there was no specific deadline for filing an application for attorneys fees. Multimore Sales Inc v. International Rectifier, Inc., 412 F.3d 685, 689 (6th Cir. 2005) quoting Weyant v. Okst, 198 F.3d 311, 314 (2d Cir. 1999). However, Congress specifically mandated a fourteen day period to file for attorneys fees after a court enters a final judgment. United Indust., Inc. v. Simon-Hartley, Ltd., 91 F.3d 762, (5th Cir. 1996) citing Fed. R. Civ. P. 54(d)(2) Advisory Committee Note; 10 Wright, Miller & Kane, Federal Practice & Procedure 2679 (Supp. 1996). The failure to file within the allotted [fourteen day] period serves as a waiver of its claim for attorneys fees. United Indust., 91 F.3d at 766 ; see also Horne v. City of Hamilton, 1999 U.S. App. LEXIS 8690 (6th Cir. 1999) (Attached as Exh. B). This Court issued its initial decision in which it partially granted the summary judgment motions filed by both the Defendant and the Plaintiffs on September 26, The Plaintiffs waited until October 11, 2006 to file their first fee application a full fifteen days after this 2

3 Court issued its order. Thus, pursuant to well-established Sixth Circuit precedent, the Plaintiffs fee application was late and should be rejected completely. However, even if this Court were to overlook the fact that the Plaintiffs fee application was untimely, it should be automatically rejected as unreasonably excessive. II. The Fee Request Is So Excessive That This Court Should Reject The Plaintiffs Motion For Attorneys Fees Completely. In civil rights litigation, a court may award a reasonable attorney s fee as part of the cost. 42 U.S.C (emphasis added). The Supreme Court has recognized that one method for calculating fees is to take the number of hours reasonably expended by the attorney and multiply that by the attorney s reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). However, a district court may, in its discretion, deny a request for attorneys fees in its entirety when the request, submitted pursuant to 42 U.S.C is so outrageously excessive it shocks the conscience of the court. The Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92, 96 (4th Cir. 1993) quoting Sun Publishing Co., Inc. v. Mecklenberg News, Inc., 823 F.2d 818, 819 (4th cir. 1987). The Landow case noted that fee applicants should make every effort to submit records which specifically allocate the time spent on each individual claim. In addition, the records should specifically describe the work which the fee applicant allocated to unsuccessful claims so as to assist the district court in determining the reasonableness of the fee request. Id. at 97. In our case, the Plaintiffs fee application is so outrageous as to shock the conscience and contains many fee requests that simply fail to comport with the law. As a result, the Secretary of State believes that this Court should simply reject the fee application. 3

4 A. The Plaintiffs attorneys seek to be reimbursed at their alleged New York City fees instead of the local market rates are required by Sixth Circuit precedent. Whenever a party seeks fees for an out-of-town specialist at that attorney s rate structure, a court must determine (1) whether hiring the out-of-town specialist was reasonable in the first instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation. Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995). Although the Plaintiffs have correctly recognized that this is the legal test that must be used by courts in determining whether a court should pay an out-of-town attorney s rates, they failed to point out that in the next sentence the Court noted a corollary to this rule that judges may question the reasonableness of an out-of-town attorney s billing rate if there is reason to believe that competent counsel was readily available locally at a lower charge or rate. Id. The Plaintiffs lawyers both failed to inform this Court of that very important portion of the Hadix case and also misapplied the legal standard set forth in that case. In trying to justify their excessive fees, the Plaintiffs lawyers simply allege that their experience in First Amendment litigation is unmatched by any firm in the country. 1 (R. 65, Motion for Attorneys Fees Filed October 11, 2006 at 9). In their second motion they similarly argue that their experience is unmatched by any firm in the country and that they were uniquely qualified to handle the appeal in an efficient manner. (R. 83, Second Motion for Attorneys Fees, Filed July 20, 2007 at 7). Simply having valuable experience that is unmatched by any firm in the country is not a sufficient reason under Hadix to allow out-ofmarket rates. 1 Despite the fact that this highly compensated New York law firm alleges that it was uniquely qualified to handle this matter in a most efficient manner, it apparently seeks reimbursement for 21 hours of research in First Amendment time, place, and manner restrictions. Exhibit A to Buckley Affidavit entries for October 29 and 30,

5 Hadix does not focus on the experience and qualifications of foreign attorneys. Instead, the Hadix court specifically noted that Section 1988 does not guarantee civil rights plaintiffs the best counsel in the country; it guarantees them competent counsel. 65 F.3d at 535. Simply having a national reputation for expertise in a particular type of litigation does not constitute proof that her expertise was necessary in this phase of the present litigation. Id. Hadix specifically rejected the very rationale advanced by the Plaintiffs in this case on the need for outof-town counsel. Most interestingly, however, is that not only did the Plaintiffs hire a Manhattan law firm at its New York City rates, it also hired a local law firm which advertises itself as having one of the largest and most effectively organized First Amendment, media and advertising law practices in the United States. The Firm has represented and continues to represent numerous media clients on a wide variety of communications law matters. (R. 65, Goehler Affidavit at 5). Based upon the affidavit of local counsel alone, this Court should find that it was unreasonable for the Plaintiffs to seek reimbursement at New York city rates. 2 Not only does the lead New York attorney seek payment of her inflated Manhattan rates despite the fact that her Cincinnati lead counsel claims an expertise in the exact same substantive legal area, she seeks those same over-inflated rates for every single member of her firm including 2 In addition to Mr. Goehler s affidaivit, his law firm s website claims to have one of the largest and most effective First Amendment, Media and Advertising law practices in the United States. See attached as Exhibit C. They also claim a reputation for successfully resolving First Amendment issues with a skilled team of litigators, and substantial experience in all substantive areas of Media Law. Id. Mr. Goehler s webpage also claims an expertise in various areas of media law including all aspects of First Amendment and newsroom-related matters. See attached as Exhibit D. In addition to writing extensively on various media issues, his biography page also claims that he is currently the Chair of the American Bar Association s forum on Communications Law. During , he also served as co-chair of the ABA s First Amendment and Media Litigation Committee and the Media Law Resource Center Defense Counsel Section s Advertising and Commercial Speech Committee. Id. 5

6 paralegals and a 2006 graduate. 3 They do so without any attempt whatsoever to justify any possible unique and special skills these individuals possess that were not available in the local legal market. Because of this exaggerated hourly billing sought by the Plaintiffs in contravention of clear Sixth Circuit precedent, this Court should exercise its discretion and find the fee application itself unconscionable and should automatically reject any fees requested by the Plaintiffs lawyers. In the alternative, the Court should only authorize the payment of rates customarily charged in civil rights litigation in the local market. B. The Plaintiffs have failed to produce any evidence concerning the reasonable market rate for attorneys in this district. The primary concern in attorneys fee litigation is that the fee awarded be reasonable. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999) citing Blum v. Stenson, 465 U.S. 886, 893 (1984). A reasonable fee is one which is sufficient to attract competent counsel but one that does not produce a windfall for attorneys. Id. Thus, attorneys fees in 1988 are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in the region. Id. at 472 quoting Coulter v. State of Tennessee, 805 F.2d 146, 149 (6th Cir. 1986). The market rates must not exceed the rate necessary to attract competent counsel to undertake the representation in question. Id. See also Roland v. Johnson, 1992 U.S. App. LEXIS (6th Cir. Sept. 4, 1992) (Attached as Exh. E). In this fee application, none of the lawyers have attempted to demonstrate what the fair market rate in the Southern District of Ohio is. Rather, they have simply filed affidavits which 3 They seek $368 per hour for Nicholas Boski despite the fact that he graduated from law school in The Plaintiffs have not specified what Mr. Boski s unique qualifications might be that he would be entitled to out-oftown rates, nor have they articulated a rationale as to why he should be paid $48 an hour more than Mr. Goehler despite the fact that Mr. Goehler is a partner at Frost Brown and Todd and has been practicing law since As will be demonstrated, Mr. Goehler s hourly rate itself is also excessive and should be reduced. During the September 13, 2007 hearing in this case, the Defendant intends to introduce into evidence what reasonable and appropriate hourly rates in the local market are for the various attorneys and paralegals who worked on the case. 6

7 state what their normal billing rate is. However, as the Sixth Circuit has previously cautioned, an attorney is not entitled to the same price charged by the most renowned law firms to their best clients. Since the Plaintiffs have failed their burden of proof on what a reasonable hourly rate would be necessary to attract competent counsel to handle their case, this Court should reject the Plaintiffs fee request. In the alternative, the Court should reduce the award by an appropriate amount. 4 C. The Plaintiffs attorneys have engaged in excessive and duplicative billing. When examining a claim for attorneys fees, a court should exclude hours that were not reasonably expended. Roland v. Johnson, 1992 U.S. App. LEXIS at *5 quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). In this particular case, numerous hours were duplicative and not reasonably expended. The Defendant will demonstrate specific hours and circumstances during the September 13, 2007 hearing. In addition to that, there appears to be situations in which attorneys have sought to bill prime legal rates for work that could have reasonably been done by lower level associates, paralegals or secretaries. Courts have rejected the notion that attorneys should be paid at their normal hourly rates for work that should have appropriately been delegated to lower level attorneys, paralegals, or secretaries. See, e.g., Bucceroni v. City of Philadelphia, 2006 U.S. Dist. LEXIS at *11 (E.D. Penn. Nov. 27, 2006) (Exh. F) citing Planned Parenthood of Central N.J. v. Attorney General of New Jersey, 297 F.3d 253, 266 (3d Cir. 2002). Whenever a lawyer spends time on tasks that are easily delegable to non-professional assistance, legal service rates are not applicable. We cannot condone the wasteful use of highly skilled and highly priced 4 The Defendant reserves the right to place into evidence reasonable hourly rates for the Southern District of Ohio during the September 13, 2007 hearing. 7

8 talent for matters easily delegable to non-professionals. Planned Parenthood of Central N.J., 297 F.3d at 266. Furthermore, there were several situations where the Plaintiffs simply used multiple lawyers to perform the same task. A prime example of this was at the temporary restraining hearing where both Ms. Buckley and Mr. Goehler were present. Courts have approved the practice of only allowing associate rates to be billed for a second attorney who is present in court. See, e.g., Evans v. Port Auth. Of New York & New Jersey, 273 F.3d 346, 362 (3d Cir. 2001). Thus, one of the lawyers who was present in Court for the November 1, 2004 TRO hearing should simply be billed at an associate s rate, if this Court allows that billing at all. 5 The Defendant reserves the right to further expound on situations where it is apparent that legal fees should be reduced because the Plaintiffs simply overstaffed this case during the November 1, 2004 hearing. D. The Plaintiffs should not be allowed to recover for fees for miscellaneous services. The Plaintiffs have sought reimbursement for meals, PACER, electronic research services, secretarial support, copying, air freight, color printing, transportation, fax machines, postage, telephone charges, travel, exhibit tabs, and bindings. This Court should reject those charges. Courts have recognizes that clerical and secretarial services are part of overhead and are not generally charged to clients. Marisol A. v. Giuliani, 111 F Supp. 2d 381, 390 (S.D. N.Y. 2000) citing Williams v. New York City Hous. Auth., 975 F. Supp. 317, 324 (S.D. N.Y. 1997). Likewise, computer research is merely a substitute for an attorney s time that is compensable 5 In light of the claims of both Ms. Buckley and Mr. Goehler, it appears that either one of those lawyers is sufficiently capable of handling a short TRO hearing on a case well within their expertise without additional legal support. 8

9 under an application for attorneys fees and is not a separately taxable cost. Id. at 402 citing United States ex rel. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir. 1996). Generally, courts only allow recovery for out-of-pocket expenses that can be normally charged to a fee-paying client. Northcross v. Board of Educ., 611 F.2d 624, 639 (6th Cir. 1979). The Plaintiffs cannot seriously maintain that it is customary in the Southern District of Ohio to charge fee paying clients for late night meals yet they are seeking reimbursement for dinners because their lawyers had to work late. Likewise, the Plaintiffs cannot expect the State of Ohio to pay for their PACER access since that system provides free access when an item is filed, nor should they expect a fee paying client to pay for their binders, tabs, or other miscellaneous business overhead expenses. Likewise, since the Plaintiffs lawyers do not detail the number of types of copies made, the reasons for air freight, fax transmissions, color printing, transportation, telephone charges, postage, or travel, it is impossible to determine whether the charges were either reasonable or necessary. The same is true for copying expenses. While some copying expense might be reasonable, the Plaintiffs simply demand thousands of dollars without specifying the unit cost, the number of copies made, or the items that were copied. E. The Plaintiffs attorneys have allocated far more time than reasonably necessary in compiling their attorneys fees application. Absent unusual circumstances, preparing and litigating attorneys fees should not exceed 3% of the hours in the main case in non-trial cases and 5% in cases that result in a trial. Coulter v. State of Tennessee, 805 F.2d 146, 151 (6th Cir. 1986). In their initial fee application, Cahill, Gordon & Reindel claims an inflated hours of work. Based upon the Coulter case, they would be eligible for only 18.4 hours in order to brief and prepare their fee application, yet they 9

10 sought 67 hours. 6 Likewise, that firm sought an additional hours for work on their appellate brief but another 22 hours for fee work. The 3% rule would limit this to a maximum of 5 hours. Likewise, Frost Todd & Brown spent 30 hours on appellate work. They would also be limited to 1 hour for their fee application instead of the 10.2 hours they are seeking. III. If the Court Awards The Plaintiffs Legal Fees, They Should Be Reduced Because Of The Plaintiffs Limited Success. In situations where a plaintiff achieves only partial or limited success, their lawyers would receive a windfall if a court were merely to take the number of hours expanded on litigation and multiple it by a reasonable hourly rate. Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999) citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). This is true even in situations where the claims are interrelated, nonfrivolous, and raised in good faith. Id. Although the Plaintiffs have alleged that they achieved excellent results and a complete victory, their actions undercut their claims. This Court granted the Defendant s motion for summary judgment and denied the Plaintiffs motion for summary judgment with respect to Count Two of the Plaintiffs complaint. Count Two sought a declaration that the Secretary s new directive was unconstitutional and sought a permanent injunction against its enforcement. R. 44 Complaint at In addition, the Plaintiffs sought an emergency order that the Defendant did not comply with this Court s prior orders. On October 27, 2006, this Court denied the Plaintiffs motion. On November 8, 2006, the Plaintiffs filed a cross appeal to the Sixth Circuit in which they appealed both this Court s decision denying them summary judgment on Count Two of their Second Amended Complaint and also this Court s decision on October 27 denying their motion for emergency 6 Once the Court reduces the fees from the original litigation, the fees for preparing attorneys fees would also be lower. 10

11 relief. (R. 75). The Plaintiffs cannot maintain that they achieved 100% success if they found these issues upon which to file cross appeals. As the Sixth Circuit has previously stated, [t]he appellants themselves realized that they did not achieve complete success, evidenced by their appeal challenging the rulings on the substantive provisions of the ordinance. Kentucky Restaurant Concepts, Inc. v. City of Louisville, 2004 U.S. App. LEXIS 25026, *18 (6th Cir. December 1, 2004) (Attached as Exh. G). Because the Plaintiffs have lost on these multiple issues and appealed those loses to the Sixth Circuit, this Court should reduce any fee award by at least 50%. See, e.g., American Charities for Reasonable Fundraising Regulation, Inc v. Pinellas County, 278 F. Supp. 2d (M.D. Fla. 2003) (finding that their constitutional arguments were not predicated upon some substantial body of facts that needed to be developed for the case as a whole. These circumstances do not support the contention that this case involved a common core of facts that rendered the due process argument interrelated with the Commerce Clause and First Amendment arguments. ). 11

12 Conclusion For the foregoing reasons, this Court should reject the Plaintiffs motions for attorneys fees. In the alternative, it should substantially reduce both the hourly rate for all lawyers, the hours claimed, and further reduce the award by at least 50% due to the Plaintiffs limited success. Respectfully submitted, Marc Dann Attorney General /s Damian W. Sikora Richard N. Coglianese ( ) Damian W. Sikora ( ) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16 th Floor Columbus, Ohio Certificate of Service This is to certify a copy of the foregoing was served upon all counsel of record by means of the Court s electronic filing system on this 13 th day of August, /s Damian W. Sikora 12