Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 1 of 6

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1 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Jornaleros de Las Palmas, Plaintiff, Civil Action No. 4:11-cv v. City of League City, Texas; Michael W. Kramm, Chief of Police of League City, in his Official Capacity Defendants. PLAINTIFF S MOTION FOR AWARD OF ATTORNEYS FEES AND COSTS Plaintiff hereby files this Motion for Award of Attorneys Fees and Costs as prevailing parties pursuant to 42 U.S.C. 1988, Fed. R. Civ. P. 54(d), and this Court s Finding of Fact and Conclusions of Law dated May 17, (Dkt. 196) For the reasons set forth below, Plaintiff respectfully submits its reasonable and necessary attorneys fees and costs, which are appropriate in this case. ARGUMENT This case was tried to the Court from September 24 through September 28, On May 17, 2013, the Court entered its findings of fact and conclusions of law based on the evidence presented at trial and applicable law. (Dkt. 196) The Court ordered that judgment be issued in favor of Plaintiff on its claims that Texas Transportation Code (a) is unconstitutional on its face and as applied, and for First Amendment retaliation. (Dkt. 196 at 33-1

2 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 2 of 6 34) The Court indicated that it will enter Final Judgment granting declaratory and permanent injunctive relief consistent with its findings. (Dkt. 196 at 34) Accordingly, the Court concluded that [P]laintiff is entitled to an award of its reasonable attorneys fees and costs in prosecuting those claims (Dkt. 196 at 33, citing 42 U.S.C. 1988) and ordered Plaintiff to submit its declaration of reasonable attorneys fees and expenses. (Dkt. 196 at 34) I. Plaintiff s Requested Attorneys Fees are Reasonable. Under 42 U.S.C. 1988, Plaintiff is entitled to reasonable and necessary legal fees for time expended on this case, as well as for time expended in the preparation of its fee application. See Johnson v. Georgia Highway Express, 488 F.2d 714, 717 (5th Cir. 1974). As further described in Plaintiff s detailed declaration, Plaintiff s fee request is based on the lodestar method, or the number of hours reasonably expended on the litigation times a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 888 (1984); see also Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). After the lodestar has been calculated, the district court must then address its reasonableness as a whole. See Longden v. Sunderman, 979 F.2d 1095, 1099 (5th Cir. 1992). 1 The trial court makes this assessment by applying the factors articulated in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). 2 District courts are required also to assess 1 After addressing the reasonableness of the fee request as a whole, the Court may also adjust the fee upward or downward, but Plaintiff does not request an enhancement here, and in fact, proposes a 5% reduction in the exercise of billing judgment. Exh. A at The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to perform the legal service; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; 2

3 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 3 of 6 whether particular hours claimed by parties seeking fee awards are reasonable. See Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990) (citation omitted). As Plaintiff excluded hours that are excessive, redundant, or otherwise unnecessary, Id.; see Exhs. A, A-2, Plaintiff s counsel has demonstrated that its request is consistent with the Johnson factors and requests only the hours for legal work expended in those claims that were successful. See Exhs. A, A-2. The work performed in this case, reflected by approximately 196 documents in the Court s docket, included but is not limited to the following: developing the claims and strategy for prosecuting the case; meeting with individuals affected by the policy; analyzing the policy and determining how it functioned as a municipal policy; drafting a complaint; conducting substantial legal research of cases, federal statutes and federal regulations and other lawsuits challenging local anti-solicitation statutes and policies; conducting depositions and discovery; preparing motions and responding to and replying in support of motions, including cross-motions for summary judgment; arguing evidentiary objections and standing; maintaining client communications; and pretrial and trial preparation. See Exh. A-1. In addition to deducting significant hours for travel, court appearances, and tasks that may appear duplicative, Plaintiff s counsel also reduced their hourly rate for necessary travel to seventy-five percent (75%). See Exh. A at 11. Finally, the hourly fee requested by Plaintiff s counsel is also reasonable. Hourly rates for attorneys fees must be reasonable within the relevant market, which in this case is Houston, Texas, where the case was heard. See Blum, 465 U.S. at The attorneys fees awarded to (10) the undesirability of the case; (11) the nature and the length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d at ; see Singer v. City of Waco, Texas, 324 F.3d 813, 829 (5th Cir. 2003). 3

4 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 4 of 6 a prevailing party must also be appropriately based on community standards for attorneys of similar experience in similar cases. Sims v. Jefferson Down Racing Ass n, 778 F.2d 1068, 1084 (5th Cir. 1985). Courts may also consider the skill required to perform the legal service, as well as the experience, reputation and ability of the attorneys. See Johnson, 488 F.2d at (factors 3 and 9). The experience, reputation and ability of the attorneys who worked on this case warrant the requested hourly rates. See Exhs. A, A-1; see also Johnson, 488 F.2d at 719 ( An attorney specializing in civil rights cases may enjoy a higher rate for his expertise than others, providing his ability corresponds with his experience... If a young attorney demonstrates the skill and ability, he should not be penalized for only recently being admitted to the bar. ). Accordingly, Plaintiff seeks an award of fees in the amount of $450, See Exh. A at 13. II. Plaintiff s Requested Costs are Reasonable. In addition to an award of attorneys fees, Plaintiff is entitled to an award of costs under Fed. R. Civ. P. 54(d)(1). An attorney s reasonable out-of-pocket expenses, which are ordinarily charged to fee paying clients may be recovered under 42 U.S.C See W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 87 n.3 (1991). The Fifth Circuit strongly presumes that courts will award costs to the prevailing party. See Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992) (citation omitted). Reasonable costs include costs for travel, depositions, copying and overnight delivery. See Associated Builders & Contractors of La., Inc. v. The Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990) ( All reasonable out-of-pocket expenses, including charges for expert costs, shipping of documents, court reporters costs, photocopying, paralegal assistance, travel, and telephone, are plainly recoverable in section 1988 fee awards because they are part of the costs normally charged to a fee-paying client. ). 4

5 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 5 of 6 Accordingly, and based on its declaration, Plaintiff seeks an award of costs in the amount of $52, See Exhs. A, A-3. CONCLUSION In summary, the amount of reasonable and necessary attorneys fees being requested by counsel for Plaintiff is $450, The amount of reasonable costs sought by counsel for Plaintiff is $52, Therefore, in total, Plaintiff seeks $503, in attorneys fees and costs. Plaintiff respectfully prays that this Court grant this motion and award the requested fees and costs. Dated: May 31, 2013 Respectfully Submitted, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND S/Marisa Bono Marisa Bono State Bar No David G. Hinojosa State Bar No Karolina Lyznik State Bar No Broadway, Suite 300 San Antonio, TX Tel: (210) Fax: (210)

6 Case 4:11-cv Document 198 Filed in TXSD on 05/31/13 Page 6 of 6 CERTIFICATE OF SERVICE I certify that on the 31st day of June, 2013, I electronically filed a copy of this Motion with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorneys of record in this case. S/Marisa Bono Marisa Bono 6