UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ DL, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-1437 (RCL) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION
Now before the Court is plaintiffs’ motion [110] for attorneys’ fees and expenses. Upon
consideration of the motion, the opposition, the reply, the entire record herein, and applicable
law, the motion will be GRANTED in part and DENIED in part for the reasons set forth below.
I. BACKGROUND
This case is a class action on behalf of disabled pre-school children in Washington, D.C.
The plaintiffs allege that defendants have failed to identify, locate, evaluate, and offer special
education and related services in violation of 42 U.S.C. § 1983, the Individuals with Disabilities
and Education Act.
On December 28, 2005, plaintiffs served defendants with plaintiffs’ first set of requests
for production of documents. After the defendants objected to numerous production requests, the
plaintiffs filed a motion to compel. Following the Court’s class certification of the plaintiffs’
action, the Court denied the motion to compel without prejudice and ordered the parties to
consider the impact of the decision on class certification and meet and confer, in person, through
1 counsel, to seek and resolve any remaining differences. (Docket No. [59].) Following further
requests for the production of documents and the plaintiffs’ numerous unsuccessful attempts to
get the defendants to comply with their discovery obligations, the plaintiffs filed a second motion
to compel.
On June 27, 2008, the Court granted in part and denied in part1 plaintiffs’ motion to
compel plaintiffs’ first, second, and third requests for production of documents and plaintiffs’
first set of interrogatories and directed plaintiffs to file a request for an amount of reasonable
attorneys’ fees and expenses incurred in filing plaintiffs’ motion. (Docket [108] at 5.) The
Court found that the District’s objections to discovery requests were “almost exclusively
unfounded,” that its objections were not “substantially justified,” and that the District had
displayed a pattern of “tardy and piecemeal disclosure.” (Mem. Op. [107] at 15, 19.) The Court
also found that Federal Rule of Civil Procedure 37(a)(5)(A) mandates that the plaintiffs be
awarded reasonable attorneys fees and costs in this case. (See id. at 18.)
The plaintiffs’ fee request is currently before the Court. Plaintiffs request $287,146.17 in
fees and expenses for their counsel’s work and expenses negotiating discovery, researching and
drafting the two motions to compel, and preparing this fee petition. After reviewing the briefs,
the time records, and the District’s objections, the Court finds that a total fees and expenses
award of $114,319.42 is appropriate and reasonable in this case.
1 The Court “substantially grant[ed] plaintiffs motion in its entirety.” (Docket [107] at 19.) The Court agreed that the defendants had to comply with every aspect of the plaintiffs’ discovery requests with two exceptions: (1) the Court held that the District did not have to do an individualized search of lead abatement data, it only had to do a search for aggregate data (Id. at 11–12); and (2) the Court held that discovery is not an appropriate time to obtain an opponents’ witness list, as plaintiffs had requested. (Id. at 17.)
2 II. ANALYSIS
A. Applicable Law
Federal Rule of Civil Procedure 37(a)(5) states that if a motion to compel “is granted—or
if the disclosure or requested discovery is provided after the motion was filed—the court must,
after giving an opportunity to be heard, require the party or deponent whose conduct necessitated
the motion . . . to pay the movant’s reasonable expenses in making the motion, including
attorney’s fees.” “Under Rule 37, the district court has broad discretion to impose sanctions for
discovery violations” and to determine what sanctions to impose. Bonds v. District of Columbia,
93 F.3d 801, 807 (D.C. Cir. 1996). The purpose of the rule is “not merely to penalize those
whose conduct may be deemed to warrant such a sanction, but to deter those who might be
tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976). Accordingly, awarding attorneys’ fees to the
plaintiffs in this case is not only warranted, but required by the language of Rule 37(a)(5).2
The initial estimate for attorneys’ fees is calculated by “multiplying the number of hours
reasonably expended on the litigation times a reasonable hourly rate.”3 Blum v. Stenson, 465
U.S. 886, 888 (1984). A strong presumption exists that the product of these two variables—the
“lodestar figure”—represents a reasonable fee. Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 478 U.S. 546, 565 (1986).
2 Defendants did not dispute plaintiffs’ statement that the attorneys’ fees statutory cap in the Individuals with Disabilities Education Act does not apply in the Rule 37 context. 3 This Court has previously observed that “[a]lthough this [lodestar] idea is simple in theory,” its focus on the billable hour “creates the loathsome task of wading through pages of time entries to determine compensation.” United States, ex rel. Miller v. Bill Harbert Intern. Const., Inc., 2009 WL 481644 at *2, n.9 (D.D.C. February 26, 2009).
3 B. Reasonable Rate
The Court first must determine the rates that will apply to plaintiffs’ hours. Plaintiffs and
defendants agree that an “updated Laffey matrix” should supply the rates that will apply to the
attorneys’ hours. See Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983). The parties
disagree as to which version of the Laffey matrix should apply, however. “While use of the
Laffey Matrix has been upheld by our Circuit since 1988, there are two different versions of it
used as proof of the prevailing market rates in federal court litigation in the District of
Columbia.” Smith v. District of Columbia, 466 F. Supp. 2d 151, 155 (Kessler, J.) (D.D.C. 2006).
The version of the matrix advocated by the plaintiffs is updated by using “the legal services
component of the CPI [Consumer Price Index] rather than the general CPI.” Id. at 156. The
matrix advocated by the defendants is maintained by the Civil Division of the United States
Attorney’s Office and “calculates the matrix rate for each year by adding the change in the
overall cost of living, as reflected in the United States Consumer Price Index for the Washington,
D.C. area for the prior year.” Id. In other words, the updated Laffey matrix based on the legal
services index has the advantage of being specifically targeted at legal services, while the USAO
index has the advantage of being specifically targeted at the Washington, D.C. area. And, of
course, the Laffey matrix advocated by the plaintiffs results in higher rates.
Although the Circuit has not expressed a preference regarding the matrix that should be
used, a survey of the district court cases in this Circuit demonstrates that because the
fundamental attorneys’ fees question is whether or not a fee award is “reasonable,” the Court can
4 use its discretion in applying the matrix that results in the most reasonable award.4 For example,
one member of this Court has applied the updated Laffey matrix based on the legal services
index, stating that it is “more accurate” because it is “based on increases/decreases in legal
services rather than increase/decreases in the entire CPI which includes price changes for many
different goods and services.” Smith v. District of Columbia, 466 F. Supp. 2d at 156. This Court,
however, recently held that the legal services matrix reflects national inflation trends, while the
USAO matrix accounts for price inflation within the local community, a crucial distinction
because the Court of Appeals and the Supreme Court have both emphasized that the lodestar
should focus on the relevant community. Miller v. Holzmann, 575 F. Supp. 2d 2, 17 (D.D.C.
2008) (Lamberth, J.) (citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984); Covington v.
District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995)).
Other judges, while acknowledging that applying the legal services Laffey index is
discretionary, have also not applied the legal services index matrix for various reasons. For
example, the Court in Muldrow v. Re-Direct, Inc., declined to award Laffey rates based on the
legal services index despite the attorneys’ exceptional skill, experience, and reputation because
the work was done in a “relatively straightforward negligence suit.” 397 F. Supp. 2d 1, 4
(D.D.C. 2005) (Huvelle, J.). Similarly, in American Lands Alliance v. Norton, the Court stated
that “heightened complexity” was required to depart from the standard Laffey matrix. 525 F.
Supp. 2d 135, 149 (D.D.C. 2007) (Walton, J.) That Court declined to depart from the standard
4 Indeed, the Circuit itself has suggested that the trial court should have discretion in determining the appropriate rates. See Covington v. District of Columbia, 57 F.3d 1101,1109 (D.C. Cir. 1995) (“Plaintiffs may point to such evidence as an updated version of the Laffey matrix or the U.S. Attorney’s matrix, or their own survey of prevailing rates in the community.”).
5 matrix despite work that included a review of the administrative record, drafting a complaint, and
drafting a motion for summary judgment in an Endangered Species Act case, which the Court
stated was “no small feat.” Id.
In this case, the Court also declines to depart from the standard (USAO) Laffey matrix.5
In addition to the fact that the USAO matrix is more in line with precedent because it is based on
the local community, see supra, the work to be compensated in this case was not particularly
complex. Counsel’s tasks included drafting discovery motions to compel, negotiating with the
District in a discovery dispute, and drafting a fee petition. Although the attorneys for plaintiffs
have deftly performed their tasks, a discovery dispute is not the type of complex work that gives
rise to use of the enhanced Laffey matrix. Much like the attorneys in American Lands Alliance,
plaintiffs’ attorneys in this case have not justified the use of the enhanced Laffey matrix by
showing the nature and complexity of the work; they simply argue that the enhanced matrix is
more accurate. Id. at 150. However, the case law in this Circuit is not so conclusive, and, in
fact, in the typical case the standard Laffey matrix has garnered approval. See id. at 149
(cataloguing cases that have approved the standard Laffey matrix).
C. Reasonable Hours
After determining that the USAO matrix should supply the relevant rates, the Court must
determine whether or not the requested hours are reasonable. A fee petitioner must submit
5 The USAO matrix rates (often used when attorneys do not have established billing rates) are as follows: $465 an hour for an attorney with 20 or more years of experience, $410 for 11–19 years, $330 for 8–10 years, $270 for 4–7 years, and $225 for 1–3 years. (Pl.’s Ex. 13, Docket [135–4].) Accordingly, Terris, Pravlik & Millian LLP attorneys Bruce Terris, Kathleen Millian, and Carolyn Smith Pravlik received compensation at $465 an hour, S. Shina Majeed at $330 an hour, Alexander Karam and Janice Gorin at $270 an hour, and Emily Benfer at $225 an hour. Margaret Kohn and Jeffrey Gutman received compensation at $465 an hour.
6 documentation supporting its fee request, and the documentation must be sufficiently detailed to
permit the Court to make a determination of whether the claimed hours are justified. Nat’l Ass’n
of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982). The district court
can exercise discretion in reducing the fee award by specific amounts in response to specific
objections. Donnell v. United States, 682 F.2d 240, 250 (D.C. Cir. 1982). The Court can also
reduce fees “by a reasonable amount without providing an item-by-item accounting.” Role
Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004). In this case, the
plaintiffs have provided substantial time records, and have also included purported justifications
for the high fees in this case. Indeed, one reason the fees were so high in this case was because
of the District’s obstinance and “tardy and piecemeal” production. For example, on the eve of
the plaintiffs’ deadline to file the second motion to compel, the defendants produced over 600
pages of responsive documents. Due to the late production, the plaintiffs were forced to seek an
extension of time and “make substantial edits to a brief that was otherwise ready for filing on the
deadline.” (Pl.’s Mot. [110] at 3.) In addition, much of the “negotiation fees” billed by the
plaintiffs were for hours spent writing letters to the District urging them to comply with their
discovery requirements; many of these letters received no response. (See Pl.’s Mot [110] at 3.)
Nevertheless, even taking into account the District’s conduct, and even taking into account the
plaintiffs’ voluntary reduction of of $40,713.056, the plaintiffs’ fee request is excessive for the
amount of work produced and the nature of the dispute and also includes numerous categories of
non-compensable time.
1. Non-Compensable Time
6 ( See docket [110-3], Terris Aff. ¶ 9.)
7 First, the District argues that the plaintiffs should only be compensated for its work on the
second motion to compel, not for its work on the first motion to compel, which was dismissed
without prejudice. This argument has merit, under the explicit language of Rule 37(a)(5), which
only awards fees if the motion to compel is granted or if the disclosure or requested discovery is
provided after the motion to compel is filed. The Rule also requires that in the event fees are
awarded the Court make a determination that the opposing party’s nondisclosure was not
substantially justified.
With regard to the plaintiffs’ first motion to compel, it was denied without prejudice.
Much of the District’s refusal to turn over class documents in response to the first motion to
compel was also, if not correct, at least substantially justified because the Court had not yet
certified the case as a class action. Accordingly, much of the plaintiffs’ fees with regard to the
first motion to compel are not recoverable.
Nevertheless, some of the research and writing regarding plaintiffs’ first motion to
compel was still relevant and used in plaintiffs’ second motion to compel. The District
acknowledges that “it very well might be that some of the time plaintiffs’ spent on [the first]
motion may have supported the motion that they were ultimately successful on . . . .” (Defs.’
Opp’n 4.) However, the District asserts that there is no way to determine how much work was
relevant and therefore fees for all work on the first motion to compel should be denied. In
contrast to the District’s claim, the Court can estimate how much work on the first motion was
relevant to the second motion by doing a side-by-side comparison, with the help of the plaintiffs’
attorney declaration. (See Pl.’s Reply [135-3] at 6–9.) From the Court’s review, it appears that
approximately 25% of the plaintiffs’ initial motion to compel and reply to the first motion to
8 compel was relevant to the second motion to compel.7 This work was used to help draft the
second motion to compel, and the plaintiffs should not be denied this compensation merely
because they performed the work at an earlier time. Accordingly, plaintiffs will be awarded 25%
of their fees for researching and drafting the first motion to compel.
The reduction for time spent on the first motion to compel also applies to time spent
negotiating document production. The District states that it “does not assert that effort spent
attempting to resolve discovery matters without resort should not be recoverable here.” (Defs.’
Opp’n at 3–4.) The Court will therefore award fees for plaintiffs’ attempts to resolve the
discovery disputes. See also Whatley v. District of Columbia, 224 F. Supp. 2d 62, 65 (D.D.C.
2002) (granting fees incurred in good faith negotiations that were aimed at avoiding getting the
Court involved in a discovery dispute). However, as with the work on the actual motions, the
District points out that the plaintiffs should not be compensated for the bulk of their work
negotiating the first motion to compel. The Court agrees and therefore will reduce plaintiffs’
total negotiating fees by 30%.8
7 Approximately 8 out of 24 pages were dedicated to the fact that plaintiffs are entitled to discovery of documents pre-dating 2003 an issue that the plaintiffs ultimately prevailed on. In addition, in the reply brief, 5 out of 22 pages were directly relevant to the pre-2003 document issue, while the plaintiffs also included other details of the defendants’ discovery missteps that were later relevant in the second motion to compel. (See docket entries [41] and [50].) Plaintiffs acknowledge that the “much longer section [of their first motion to compel] regarding class certification issues was largely irrelevant” following the Court’s denial of the first motion. (Docket [135-3], Supp. Aff. of Terris at ¶ 17(a).) 8 The plaintiffs spent approximately 61 of the 101 negotiation hours on the second motion to compel. (Pl.’s Reply at 15–16.) This would equate to a 40% reduction, but the Court awards plaintiffs an additional 10% to reflect a portion of the time spent negotiating issues with regard to the first motion to compel in which the District’s position was not substantially justified and that the plaintiffs later had to renew the issue in a second motion to compel. (See supra at 8) (approximately 25% of the work on the first motion to compel was relevant to the second motion
9 Finally, the Court must subtract the fees for time spent on issues on which the plaintiffs
did not ultimately prevail. See INS v. Jean, 496 U.S. 154, 163 n.10 (1990) (“[F]ees for fee
litigation should be excluded to the extent that the applicant ultimately fails to prevail in such
litigation.”). With regard to the motions to compel, the Court ultimately concluded that the
plaintiffs essentially fully prevailed. However, with regard to the fee petition, the plaintiffs did
not prevail on substantial portions of their fee petition. Plaintiffs’ fee request for time spent on
the fee petition is $69,460.95. (See Pl.’s Reply [135-11] at 1.) However, the Court rejected the
plaintiffs’ request to use the Laffey matrix based on legal services index.9 The plaintiffs also did
not prevail on their argument that they were entitled to the full fees billed while drafting the
initial motion to compel and negotiating the issues surrounding the initial motion to compel.
Additionally, the Court partially agreed with the defendants that the plaintiffs’ time entries are
vague. See infra. Finally, the Court finds that 240.710 hours generating $70,000 in fees merely to
create a discovery dispute fee petition is per se unreasonable.11 See, e.g., Fabi Constr. Co. v.
Sec’y of Labor, 541 F.3d 407, 414 (D.C. Cir. 2008) (reducing 236.8 hours of attorney time on fee
to compel). 9 From the Court’s review of the briefs and supporting materials, the plaintiffs spent approximately 33% of their fee petition hours arguing for the updated Laffey matrix that was rejected by the Court. 10 See Docket [135-16] at 6; Docket [135-17] at 2–3. The plaintiffs spent 63.31 hours on the initial brief prior to July 18, 2008. They then spent an additional 54.41 hours on the initial brief after July 18, as well as 5.78 hours reading the opposition and 117.22 hours working on the reply. 11 Reviewing the time entries relating to the fee petition also demonstrate excessive research. For example, on 8/25/08, 8/26/08, and 8/27/08, ARK billed approximately 15.5 hours to researching Laffey rates, block billing, and adequate descriptions. The Court finds this amount of research unreasonable in light of the relatively simple nature of fee petition law in this Circuit.
10 application by 50% because nearly six 40-hour weeks of attorney time is unreasonable);
American Wrecking Corp. v. Sec’y of Labor, 364 F.3d 321, 331 (D.C. Cir. 2004) (stating that 118
hours spent compiling the fee application was excessive and reducing fees by 50%).
Accordingly, to account for the fact that the plaintiffs did not prevail on the majority of their
arguments and billed excessively for their work on the fee petition, the Court will reduce the
requested $69,460.95 for preparing the fee petition by 75%.
2. Across-the-Board Reductions
After the Court has subtracted out non-compensable time, the Court can conduct further
across-the-board percentage reductions as appropriate when a large number of entries suffer from
one or more deficiencies. Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C. Cir.
2004). Defendants state that the first defect in plaintiffs’ time entries is the use of block billing,
which makes “it impossible for the court to meet its responsibility of determining with a high
degree of certainty that the hours billed were reasonable.” Role Models v. Brownlee, 353 F. 3d
962, 970 (D.C. Cir. 2004). Block billing is most egregious when the fee petitioner has only
prevailed on a portion of their claims; block billing makes it impossible for the Court to separate
out the constituent tasks and decide how much to award the petitioner. Here, the plaintiffs
prevailed on substantially all of their arguments regarding the second motion to compel.
Accordingly, block billing is not a serious problem with regard to plaintiffs’ initial billing records
that do show some minor instances of block billing.12 As for the fee petition billing hours, for
which block billing would present a significant problem, plaintiffs apportioned the amount of
12 See Docket [110-8]. Additionally, the instances of block billing do not appear nearly as egregious as those that have been chastised previously by this Court.
11 time they spent on each task, making it easy for the Court to review their records.13 The Court
will not make an across-the-board reduction for block billing.
Defendants also object that the billing entries suffer from inadequate detail. (Defs.’
Opp’n 7.) Defendants object to entries such as 26.88 hours billed to “research and draft motion
to compel”; “draft motion to compel”; and “edit motion to compel.” (Id.) The plaintiffs respond
that these time entries are sufficiently detailed to permit recovery. Indeed, there is some support
for the plaintiffs position, as “there is certainly no need for [an attorney] to itemize every case she
looked up or every paragraph she labored over. Trial courts must recognize how lawyers work
and how they notate their time.” Smith v. District of Columbia, 466 F. Supp. 2d 151, 158
(D.D.C. 2006) (Kessler, J.). However, as that opinion recognizes, “the ultimate inquiry is
whether the total time claimed is reasonable.” Id. Accordingly, when a Court is “outraged by a
fee petition that [is], by any standard, extraordinarily high,” it can scrutinize the fee petitioner’s
time records with a more demanding eye. See id.
For that reason, in Role Models America, Inc. v. Brownlee, the D.C. Circuit reduced a
request of approximately $345,000 in fees and expenses to $83,236. 353 F. 3d at 968, 975. In
that opinion, the Court stated that in light of such a high request for a limited amount of work
produced on a relatively run-of-the-mill matter, entries such as “research and writing for
appellate brief” were insufficient for lack of adequate detail. See id. at 972.
This case possesses many of the same characteristics as Role Models. The motion to
compel arose out of a “garden-variety” discovery dispute. See id. at 969. No legal issues
13 See e.g., Docket [135-13] at 7, ARK, 8/28/2008, “Revise motion for extension and file via ECF (20 min); confer with CSP re adequacy of time records issue (14 min); conduct legal research re market rates (1 hr 5 min)”.
12 presented in the discovery dispute were particularly novel or complex. It is unclear to the Court
how discovery negotiations, a motion to compel, and a fee petition presenting the claim for those
attorneys’ fees could have resulted in over $200,000 in fees. In other words, the Court finds the
amount of the fee request unreasonable on its face and, like the Court in Role Models, is not
convinced otherwise by generic descriptions such as “draft reply brief.”14 Accordingly, the Court
will further reduce the plaintiffs’ lodestar by 10% for vague time entries. See also Miller v.
Holzmann, 575 F. Supp. 2d 2, 36 (D.D.C. 2008) (reducing lodestar by 10% for vague time
entries).
D. Summary of Fees and Fee Reductions
Plaintiffs requested $287,146.17 in fees and expenses for their counsel’s work. The
Court found that this request was subject to numerous reductions. First, the Court determined
that the USAO Laffey matrix would supply the relevant rates because the work involved was not
complex enough to warrant the enhanced Laffey matrix advocated by the plaintiffs. Next, the
Court found that plaintiffs were only entitled to a small portion of the work on their first motion
to compel because that motion was made before class certification and was denied without
prejudice. Therefore, the Court will only award 25% of the fees requested relating to the first
motion to compel. With regard to the negotiation fees, the Court has awarded 70% of the
requested amount, taking into account that the negotiation fees with regard to the first motion to
compel should largely not be compensable. Finally, the Court reduced the fee petition fees by
75% to reflect the excessiveness of the time charged and the issues upon which the plaintiffs did
not ultimately prevail. After subtracting out the issues that are not compensable, the Court
14 See Docket [135-13] at 7–8.
13 scrutinized all other fees and expenses.15 The Court found that a 10% reduction was warranted
for vague time descriptions. Following all applicable reductions, the plaintiffs’ total award for
fees and expenses is $114,319.42. (See Appendix 1.) The Court finds that in light of the
attorneys’ skill and experience, and the nature of the work involved, that this amount is
reasonable.
III. CONCLUSION
Upon consideration of the plaintiffs’ motion [110] for attorneys’ fees and expenses, the
opposition, and the reply, applicable law, and the entire record herein, the motion will be
GRANTED in part and DENIED in part. Plaintiffs will be awarded a total of $114,319.42.
A separate order shall issue this date.
SO ORDERED.
Signed by Chief Judge Royce C. Lamberth on March 11, 2009.
15 The District did not object to plaintiffs’ expenses and they were not reduced.
14 Summary of Fees and Expenses7
Fees Using USAO Rates Terris, Pravlik & Millian, LLP Negotiation re Motions to Compel $28,804.85 30% reduction to all negotiation work1 ($8,641.45) Work on First Motion to Compel $41,812.78 75% Reduction for work on First Motion to Compel2 ($31,359.59) Work on Second Motion to Compel $106,760.10 Plaintiffs' voluntary reduction to Second Motion to Compel work ($31,817.52) Fees work $69,460.95 75% reduction to all fees work3 ($52,095.71) Margaret A. Kohn First Motion to Compel $279.00 75% reduction to all work on First Motion to Compel4 ($209.25) First and Second Motion to Jeffrey S. Gutman Compel $1,534.50 65%5 reduction to all work ($997.26)
Subtotal Fees $123,531.40 10% global reduction6 ($12,353.14)
Total Fees $111,178.26
Total Expenses $3,141.16
Total Award: $114,319.42
1 (Mem. Op. at 9.) 2 (Mem. Op. at 8.) 3 (Mem. Op. at 10.) 4 (Mem. Op. at 8.) 5 This figure estimates the appropriate reduction for Gutman’s work on the First Motion to Compel. 6 (Mem. Op. at 12.) 7 Requested figures were taken from Docket [135-11].