UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. 0CV-LAB (CAB) vs. Plaintiff, ORDER GRANTING IN PART MOTION FOR ATTORNEY S FEES $, IN U.S. CURRENCY, Defendants. 0 In is forfeiture case, Claimant Robert Moser successfully obtained return of e Defendant currency, and moved pursuant to e Civil Asset Forfeiture Reform Act of 000 (CAFRA) for attorney s fees of over $0,000. The government filed an opposition, arguing at if fees are awarded, ey should be reduced. Moser also requested costs, but ose have already been taxed. What is at issue here is a fee award only. The parties are familiar wi e procedural history, which is not repeated here except as necessary in e course of discussion. There is no real dispute here at Moser substantially prevailed and is eligible for a fee award under CAFRA. The focus of e briefing is on e amount of e award. Moser, as e party seeking a fee award, bears e burden of showing he is entitled to it and what it should be. See Harris v. Maricopa County Superior Court, F.d, ( Cir CV

2 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 0) (in cases involving attorney s fees generally, e burden falls solely on e claimant). See also Blum v. Stenson, U.S., n. () (burden on claimant to show what reasonable hourly rate was). The government seeks to limit e award to e fees actually provided for under e retainer agreement, while Moser argues e lodestar approach should be used, which would likely result in a higher award. The government cites United States v. $,.00 in U.S. Currency, F.d, ( Cir. 0) for e principle at e fee agreement can be considered when determining a reasonable fee in CAFRA cases. Moser does not dispute is, but rightly points out at e payment provided in e fee agreement is not a cap. Id. at. Moser is also correct at e lodestar meod is to be used. See id. at. The statutory language, providing for an award of fees incurred by e claimant does not limit e award to actual fees. See Blanchard v. Bergeron, U.S., 0 () (when using lodestar meod, fee award was not limited to contingent-free agreement between attorney and client). Using e lodestar meod, e Court first makes an initial estimate of reasonable fees by multiplying e number of hours reasonably expended on e litigation by a reasonable hourly rate. Blanchard, U.S. at (citing Hensley v. Eckerhart, U.S. (); Blum v. Stenson, U.S., ()). The initial estimate may en be adjusted based on oer factors, known as Johnson factors after Johnson v. Georgia Highway Express, F.d ( Cir. ). See Blanchard, U.S. at ; see also id. at (discussing Congress reliance on Johnson factors). Those factors are: () e time and labor required; () e novelty and difficulty of e questions; () e skill requisite to perform e legal service properly; () e preclusion of oer employment by e attorney due to acceptance of e case; () e customary fee; () wheer e fee is fixed or contingent; () time limitations imposed by e client or e circumstances; () e amount involved and e results obtained; () e experience, reputation, and ability of e attorneys; (0) e undesirability of e case; () e nature and leng of e professional relationship wi e client; and () awards in similar cases. Johnson, F.d at. (These are also known as Kerr factors, after Kerr v. Screen Extras Guild, Inc., F.d ( Cir. ).) Reasonable fees are adequate to attract - - 0CV

3 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 competent counsel, but do not produce windfalls to attorneys. Blanchard, U.S. at n. (citing legislative history). Reasonable Hourly Rate Moser s briefing focuses a great deal on e hourly rate. He argues at e relevant comparison is to federal practitioners possessing high levels of skill and experience in e greater San Diego legal communities. While Moser s counsel, Richard Barnett, cites evidence he is very experienced and has been identified as an expert in forfeiture law, e question is really what level of skill, training, and experience was required in is case. See Blum, U.S. at n. (reasonable rate should be in line wi ose prevailing in e community for similar services by lawyers of reasonably comparable skill, experience and reputation ) (emphasis added). Moser cites evidence at similarly experienced counsel in civil forfeiture cases in is District customarily bill from $00 to $00 per hour. (Fee Mot. at :.) The evidence, however, suggests is is e customary rate of litigators in various types of cases, not just civil forfeitures. In oer words, e customary fees represent an average for all types of litigation work. Some areas (e.g., patent or securities) obviously command higher fees an oers (e.g., criminal defense in drug cases). It is erefore not a particularly accurate representation of what e going rate is in is market for is type of work. While is was a civil forfeiture case, e central issue was e legality of a search and seizure. The heart of is case was a motion to suppress. In is respect, e legal skills required are more similar to ose of a criminal defense attorney. The law governing forfeitures did come into play, but e focus here was on criminal procedure much more an forfeiture law. After e initial client interview, is would have been obvious to Barnett or any oer attorney practicing in is field. Defense attorneys customary rates in is District are not as high as e rates Moser urges are e norm in forfeiture cases. For example, CJA panel members are required to be experienced and well-trained, yet e CJA hourly rate for appointed counsel in non-capital cases in is District is $ CV

4 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 It is also wor remembering at much of e work in a case like is is fairly routine, and e degree of expertise required for ose tasks is much lower. Typically, lawyers who work in firms delegate is work to junior associates or paralegals, who bill at lower rates. Some work is delegated to staff who do not bill at all, and eir cost is reflected in e attorneys billing rates. Many of e lawyers whose declarations Moser relies on fall into is category; while ey emselves might charge rates of $00 to $00 per hour, ey would as a matter of course delegate work so at bills are reasonable. For example, Barnett not only interviewed Moser, made appearances before e magistrate, communicated wi opposing counsel, and directed litigation strategy, all typically carried out by more experienced counsel; but he also compiled exhibits, drafted responses to interrogatories, and researched and drafted whole pleadings, tasks typically carried out for e most part by more junior staff. If Barnett had delegated work as is typical in larger law offices and firms, his requested rate of $00 per hour might be reasonable. Had he done so, he would also have submitted billings from attorneys or paralegals wi lower billing rates, and e average hourly billing rate for e entire case would have been quite a bit less an $00. A case Moser himself cites illustrates is point. In United States v., Mastercases of Cigarettes, F. Supp. d 0, 0 (C.D.Cal., 00), vacated on oer grounds, F.d ( Cir. 00), e court held at e requested $00 hourly rate was reasonable. That decision, however, found e $00 rate was reasonable for lead counsel and co-counsel only; e two associates were billed at $ per hour. Compare Gold v. NCO Financial Systems, Inc., 00 WL at * * (S.D.Cal., Aug., 00) (determining reasonable fees for attorneys and a paralegal). A very experienced civil forfeiture attorney would be expected to be familiar wi basic elements to be included in pleadings such as a notice of claim, a motion to suppress, an opposition to a motion to dismiss or strike, and a fee motion. Experienced practitioners typically keep exemplars of pleadings drafted in earlier cases, and update em or make changes as needed. Associates are tasked wi drafting, basic research, and proofing of motions, and e more senior attorney drawing on his expertise identifies legal eories, directs e associate, reviews drafts, and approves e final draft. Where is meod is used, e senior attorney s hours are reduced but a higher hourly rate is justified CV

5 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 While delegation of less-expert tasks is not required in e practice of law, an attorney who does all levels of work e demanding and sophisticated as well as e basic and routine would typically bill at a lower hourly rate an one who does only e most difficult work. This avoids top-heavy billing at e market will not support. See Bridgeport Music, Inc. v. WB Music Corp., 0 F.d, ( Cir. 00) (approving district court s reduction of lodestar amount to account for top-heavy billing ). Because Barnett did all e legal work here, a reasonable rate is lower. What at rate should be is less certain. The government s brief does not address e question of what a reasonable rate for Barnett would be. Barnett does not identify any case, wheer a forfeiture case or any oer kind, approving any hourly rate for him, and e Court s own search of caselaw revealed none. Bearing in mind Barnett s discussion of his extensive work in forfeiture cases, e absence of any record of a fee award for his work is somewhat surprising. He doesn t say what his own customary rate is, but his fee agreement wi Moser shows he was willing to litigate is case for / of e total Moser recovered, meaning he could not reasonably expect to collect more an about $00 in fees from his client. Even assuming (as discussed below) Barnett expected e case to be resolved more quickly and e large number of hours he devoted to e case was justified by e government s overlitigation of e issues, he would have had to resolve is case in under hours (instead of e more an 00 hours it actually took) to earn a $00 hourly fee. Obviously ere is some reasonable rate, but in is case it is not $00 per hour, nor has Moser given a plausible basis for calculating an alternative rate. The Court, based on its knowledge of e legal market as well as e evidence, will erefore determine what e reasonable rate is. See Ingram v. Oroudjian, F.d, ( Cir. 0) (approving district court s reliance, in part, on its own knowledge and experience of legal market to The affidavit of Eric Honig, attached as Exhibit D to e motion, explains at e community of civil forfeiture practitioners assisting private claimants in Souern California is very small. Honig himself says he was e first attorney in e country to obtain a fee award in a similar case CV

6 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 determine reasonable rate). Because it was Moser s burden to show what e reasonable rate was, e Court will be conservative in its determination. Moser s motion relies in part on e declaration of Eric Honig. Honig s declaration points out at in 00, he obtained a fee award at an enhanced rate of $00 per hour in e Central District of California. (Motion, Ex. D,.) While is was seven to nine years before Barnett performed his work and rates have increased since en, it is also true at rates are generally higher in e Central District an in is District. It also bears mention at in at case Honig submitted evidence at e prevailing rates were $0 to $00 per hour yet Honig s hourly rate was $00, and at of his co-counsel was $. This, en, can serve as a reference point for a reasonable rate in is District. Honig also cites cases in which he was awarded fees at a much higher rate, but ese were more complex cases, requiring more expertise in civil forfeiture procedure an is case. The Court erefore determines at, while Barnett might command a higher rate in oer cases, a reasonable hourly rate in is case was no more an $00. Hours Reasonably Expended The motion documents over 00 hours of work on e claim in is case, which is surprisingly high. In its order granting Moser s claim, e Court noted at is was really a raer straightforward case, and held at e constitutional violations requiring suppression were obvious. Barnett, upon learning e facts, might well have assumed e government would settle quickly and on terms very favorable to his client. The claim was not settled however. The government, for reasons at are not clear, obstinately opposed e claim. The government, not satisfied wi merely opposing his claim, filed a motion to strike it. The basis for at motion was e specious suggestion at ere Barnett s billings run from August 0, 00 to April, 0. He requests e $00 hourly rate for e entire period. The Court is also permitted to consider awards in oer cases as one of e Johnson factors CV

7 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 wasn t sufficient evidence e $,000 seized in Moser s home belonged to him. The government continued to oppose Moser at every turn, and Moser responded in kind. In oer words, after e case began, e government s unnecessarily aggressive posture forced Moser to choose wheer to expend effort to continue litigating or cut his losses and forfeit e $,000. While e government s obstinacy and aggressive litigation may have required Barnett to undertake tasks at would oerwise have been unnecessary, ere is no reason why Barnett should have spent so much time on ose tasks. In oer words, it appears Barnett gave e government s litigation work more respect an it deserved. Seasoned attorneys skilled in e management of cases are expected to be able to gauge e appropriate level of response to opposing counsel s maneuvers. They are expected to recognize and succinctly point out weak arguments, raer an expending effort disproportionate to e arguments persuasive power. Raer an responding in kind and point-by-point to lengy briefs, experienced counsel should know when a more measured response is appropriate. In oer words, experienced counsel are expected to make reasonable independent judgments about how to litigate e case, raer an allowing opposing counsel to set e agenda and dictate eir use of resources. This is easier said an done, of course, and even experienced counsel miscalculate sometimes, but e standard here is reasonableness. The Court has reviewed Barnett s billing entries. To his credit, on some occasions, he cuts his hours, a common practice to account for work done in good fai at later proves to have been unnecessary. The billing entries, however, also include numerous items at suggest e time spent and billed was unnecessarily high for an attorney experienced in civil forfeitures and criminal procedure; too much time was billed for matters at are familiar to all experienced federal litigators. For example, e government s opposition to Moser s motion for summary judgment was mostly directed at marshaling e evidence. Then two It isn t clear why e government brought is motion, but e only required response was to show at e money was Moser s and not someone else s. Moser s opposition did at in just a few pages, but en went on to debate at leng e government s brief over e adequacy of Moser s objections to numerous special interrogatories. In all, e body of e opposition ran 0 pages, and an additional pages of exhibits were attached CV

8 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 pages was spent attempting to show Moser hadn t met e well-known standards for summary judgment. The standards e government cites are well-known and in no way novel or complex. Barnett s billing entries on September and, 0 show he spent. hours drafting a reply brief to e opposition, and also researching Fed. R. Civ. P.. Here, a succinct reply brief showing at e government s evidence was inadmissible would have been sufficient, and it is unclear why research on e Rule standards was required. To cite a second example, Barnett s attorney s fees motion was lengy and supported by several declarations, and he also filed a ten-page reply to e government s opposition. But, as discussed above, his briefing omitted some key points, touched on oers only in passing, and expended effort on favorable but less an apt comparisons. This is not to say Barnett in any way acted improperly by conducting extra research, confirming his understanding of basic legal principles, or familiarizing himself wi tangential aspects of e case. Succinct briefing is preferred. See, e.g., Gillespie v. Astrue, 0 WL 0, slip op. at * (E.D.Tenn., Jan., 0) ( Plaintiff's counsel, in e manner which is always appreciated by is Court, makes a succinct argument. ) That is not to say attorneys err by devoting more time and words to briefing, particularly where e likely ruling on particular points is in doubt, and e Court is aware at cases look simpler in hindsight. But here, it should have been clear even ex ante at not all e billed work was reasonably necessary to prosecute Moser s claim. Because e billing entries are generalized by task, e Court cannot say wi any certainty how much of each day s work was reasonably necessary. The Court erefore relies on its own experience, see Ingram, F.d at, and estimates at no more an 0 hours were reasonably expended on e work. Lodestar Based on e Court s determinations of a reasonable hourly rate and hours reasonably expended, e Court calculates e lodestar figure at $,000. This figure is necessarily somewhat crudely determined, because of Moser s failure to carry his burden as fully as he should have. But it does not matter much in is case if it is somewhat inaccurate, because e Court will adjust it downward after considering e Johnson factors CV

9 Case :0-cv-0-LAB-KSC Document Filed 0// Page of 0 0 Johnson Factors and Adjustments The lodestar figure is presumptively reasonable, Jordan v. Multnomah County, F.d, ( Cir. ), and courts do not frequently adjust it after it is calculated. Harris v. Marhoefer, F.d, ( Cir. ). Some of e Johnson (or Kerr) factors are subsumed wiin e lodestar calculation, and are erefore not used to adjust e lodestar figure after it is calculated. Morales v. City of San Rafael, F.d, ( Cir. ). Of ose at are not subsumed wiin e lodestar figure, only e relevant ones need to be considered. McGra v. County of Nevada, F.d, ( Cir. ) (district court should take into account Kerr factors it finds to be relevant). The Court has already considered e time and labor required; e novelty and difficulty of e questions; e required skill level; and Barnett s experience, reputation, and abilities. There have been relatively few fee awards under CAFRA, and neier party has pointed to a case similar to is one where a fee award was made. The remaining relevant factors are e customary fee, wheer e fee is fixed or contingent, e amount involved, and e undesirability of e case. These all boil down to a limited set of facts, namely at Barnett knew Moser could not recover more an $,000, and he agreed in a contingent fee agreement to accept / of e total recovery as his fee. Civil forfeiture cases involve a variety of types of property and a wide range of property values. Wiin is range, a claim for $,000 is not as lucrative as some, but a contingency fee agreement would be enough to attract competent counsel. See Blanchard, U.S. at n.. It is not such an undesirable case at a higher fee award is merited in order to encourage attorneys to undertake e representation. The Court finds very significant e fact at Barnett was willing to undertake e representation for no more an $,. plus costs. He might have expected it to settle quickly, based on e streng of Moser s suppression argument. But ere was no assurance of at. He might also have hoped for an award of fees under CAFRA. But he would have been aware at fee awards are not common, and also at ey are not intended to produce a bounty for attorneys. See Blanchard, U.S. at n.. The logical - - 0CV

10 Case :0-cv-0-LAB-KSC Document Filed 0// Page 0 of 0 0 and reasonable inference here is at Barnett and Moser agreed to a fee of no more an about $00. It is also significant at is was a contingent fee agreement. The fraction of e recovery at goes to e attorney under such agreements typically compensates e attorney not only for work done in cases where his client prevails, but also covers e attorney s losses in cases where e client recovers little or noing. In oer words, it is adjusted upwards to account for risk. The $, figure can be presumed to be higher an what Barnett would charge if ere were no risk, i.e., if Moser had guaranteed payment regardless of e outcome. While e Court recognizes at is figure is not a cap on e award, it is nevereless relevant. See $,.00 in U.S. Currency, F.d at (court may consider fee agreement when determining reasonable fee award). Bearing in mind e relevant Johnson factors, e Court determines at a fee award of $,000 is excessive, but an award of $,000 is reasonable. To Whom Is e Award Made? Moser s motion argues e fee award should be made directly to Barnett, while e government argues any award should be made to Moser. It is unclear why e parties are disputing is at all, much less why it should have been e subject of substantial argument. CAFRA fee awards ordinarily are made to e claimant. $,.00 in U.S. Currency, F.d at (citing Astrue v. Ratliff, 0 S.Ct. (00)). But ey may, as here, be contractually assigned to e claimant s counsel. Id., F.d at (citing Gilbrook v. City of Westminster, F.d, ( Cir. ) ( In e absence of a contractual assignment to counsel, requires at attorney fee awards be made directly to e prevailing party. )) Because Moser assigned any fee award to Barnett, e award should be made to Barnett CV

11 Case :0-cv-0-LAB-KSC Document Filed 0// Page of Conclusion and Order For e reasons discussed above, e Court finds Richard Barnett, Esq. is e assignee of Claimant Moser, e prevailing party. The Court AWARDS Barnett, Esq., attorney s fees under CAFRA, in e amount of $,000. IT IS SO ORDERED. DATED: February, 0 HONORABLE LARRY ALAN BURNS United States District Judge CV