Parker v . Nashua CV-91-407-SD 05/30/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sharon L . Parker
v. Civil N o . 91-407-SD
City of Nashua, N H , et a l .
O R D E R
Before the court is plaintiff's motion seeking an additional
award of attorneys' fees, costs, and interest. Document 110. 1
The motion is grounded on legal services rendered in connection
with plaintiff's successful appeal. See Parker v . City of
Nashua, N H , 76 F.3d 9 (1st Cir. 1996). Defendant Francis Sheehan
objects. Document 114.
At outset, the court notes the nearly impossible task
imposed on a trial judge, deprived of the opportunity to read
appellate briefs, hear appellate argument, or participate in
appellate settlement conferences, to assess fees for services
rendered in connection with a successful appeal. As the task is
so assigned, the court proceeds as best it may under the
circumstances.
1 Plaintiff has also moved for expedited consideration of the motion. Document 117. That motion is mooted by the issuance of this order. 1. Attorneys' Fees There can be no dispute that plaintiff is a prevailing party in this litigation. Hensley v . Eckerhardt, 461 U.S. 4 2 4 , 433 (1983). Defendant argues, however, that plaintiff met with limited success, having failed in her cross-appeal, and that a reduction of fees is thus in order. Corder v . Brown, 25 F.3d 833, 840-41 (9th Cir. 1994). Defendant also suggests that many of the listed services for which fees are charged were
duplicative or unnecessary. Lipsett v . Blanco, 975 F.2d 9 3 4 , 938 (1st Cir. 1992).
Review of the itemization of fees, which covers the period between March 2 3 , 1994, and February 1 0 , 1996, demonstrates that at least four attorneys worked at different times on the appeal.2 Moreover, some of the fees sought include time spent in conferences between and among such attorneys. Charges are also made for the travel of more than one attorney to appellate settlement conferences and to the court for oral argument. Furthermore, much of the time spent in research and motion practice i s , the court finds, excessive. The court has made deductions accordingly, resulting in reduction of the charges
2 Although the itemization of claimed charges includes .5 hours for Attorney Eugene Quinn, the court has not been advised of his claimed hourly rate. Accordingly, these charges have been excluded from the computation hereinafter made.
2 claimed to the following allowable awards: Atty Murphy 61.4 hrs @ $150/hr $ 9,210.003 Atty Keefe 7.55 hrs @ $150/hr 1,132.504 Atty Johnston 80.95 hrs @ $ 90/hr 7,285.505
TOTAL $17,628.00.
3 The court deducts from the claimed hours of Attorney Murphy .1 hours on 4/15/94; .1 hours on 5/1/94; .15 hours on 5/4/94; .4 hours on 5/5/94; .2 hours on 5/17/94; 2 hours on 5/24/94; .25 hours on 6/27/94; 1 hour on 6/30/94; .1 hours on 7/11/94; .75 hours on 7/18/94; 3 hours on 8/9/94; .5 hours on 1/17/95; .25 hours on 3/30/95; .75 hours on 3/31/95; .1 hours on 4/24/95; .5 hours on 4/30/95; 1.5 hours on 5/1/95; 2 hours on 5/23/95; 1.4 hours on 5/24/95; 3.9 hours on 5/25/95; 1.2 hours on 5/26/95; .15 hours on 6/12/95; .45 hours on 7/17/95; .2 hours on 8/16/95; .4 hours on 8/17/95; .5 hours on 8/30/95; .2 hours on 9/6/95; .75 hours on 9/8/95; l.75 hours on 9/11/95; 2.65 hours on 9/12/95; .4 hours on 10/3/95; .2 hours on 10/5/95; .75 hours on 10/11/95; .75 hours on 11/1/95; 1 hour on 11/2/95; 1.75 hours on 11/3/95; 1.25 hours on 11/4/95; 1.75 hours on 11/5/95; 2.25 hours on 11/26/95; 1 hour on 2/7/96; and .2 hours on 2/8/96. 4 The claimed hours of Attorney Keefe are reduced by deducting .4 hours on 5/1/95; .25 hours on 5/23/95; .25 hours on 5/25/95; .1 hours on 6/12/95; 1.25 hours on 9/10/95; .6 hours on 9/12/95; and 2.25 hours on 11/6/95. 5 The deductions for the claimed hours of Attorney Johnston include .5 hours on 3/23/94; 2 hours on 3/24/94; .2 hours on 3/25/94; .35 hours on 3/28/94; .5 hours on 3/31/94; .9 hours on 4/12/94; .5 hours on 5/1/94; .2 hours on 5/4/94; .2 hours on 5/5/94; .75 hours on 3/30/95; .1 hour on 3/31/95; .5 hours on 4/28/95; 4 hours on 4/30/95; 4 hours on 5/1/95; .75 hours on 5/13/95; 3.5 hours on 5/24/95; 4 hours on 5/25/95; 4 hours on 5/26/95; 2 hours on 6/1/95; 1.5 hours on 7/20/95; 3 hours on 8/21/95; 1 hours on 8/22/95; .5 hours on 8/29/95; 2.5 hours on 8/30/95; 3 hours on 9/1/95; 3 hours on 9/3/95; 3.5 hours on 9/5/95; 2.5 hours on 9/6/95; 3.5 hours on 9/7/95; 3.5 hours on 9/8/95; 2.5 hours on 9/11/95; 4 hours on 9/12/95; .5 hours on 9/13/95; 1 hour on 10/4/95; 3 hours on 10/9/95; 1.5 hours on 2/7/96; 4 hours on 2/8/96; 4 hours on 2/9/96; and 3 hours on 2/10/96.
3 Additionally, the court awards the paralegal identified as
M.M. the claimed .8 hours at a $55 hourly rate, or $ 4 4 , and
reduces the claimed hours of paralegal J.E.S. from 2.7 to 2 hours
at the same rate, for $110. The total of the amount of attorney
fees, including paralegals, is therefore the sum of $17,782.00.
2. Costs
Plaintiff seeks costs connected with the appeal in the
amount of $1,795. The terminal period involved runs from
April 2 6 , 1994, to November 6, 1995. Defendant challenges
$174.05 of such costs, largely with respect to travel to
appellate settlement conferences.
The law is clear that when costs are computed under 42
U.S.C. § 1988, they are to include reimbursement of reasonable
and necessary attorneys' expenses, which include travel.
Palmigiano v . Garrahy, 707 F.2d 636 (1st Cir. 1983). The court
further finds that appellate settlement conferences are an
integral part of the appellate process, for which such expenses
should be reimbursed.
The court does find that the items of copying cases at
Franklin Pierce Law Center on April 2 6 , 1994, $10; travel and
copying of materials at the same place on August 2 1 , 1995,
$15.70; and the photocopies of LaFave Search and Seizure treatise
on November 2 , 1995, of $10.40 should be deducted from the total
4 of claimed costs. These items are in the possession of plaintiff's counsel, and can be utilized in other cases for other clients. Accordingly, total costs of $1,759.60 are to be awarded to plaintiff.
3. Interest
Suggesting that dichotomy as to received judgment dates is
in order, the plaintiff claims post-judgment interest at
differing rates of interest pursuant to 28 U.S.C. § 1961.6
Defendant objects, contending that only one judgment date,
February 2 , 1994, here applies. Defendant has the better of this
argument. See Friend v . Kolodzieczak, 72 F.3d 1386, 1391-92 (9th
Cir. 1995) (interest runs from the date that entitlement to fees
is secured, rather than from the date that the exact quantum of
fees is s e t ) .
On the other hand, defendant overlooks that post-judgment
interest is computed not on the amount of the verdict alone but
also on the total of verdict, attorney fees, and costs. Such
6 28 U.S.C. § 1961
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Parker v . Nashua CV-91-407-SD 05/30/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sharon L . Parker
v. Civil N o . 91-407-SD
City of Nashua, N H , et a l .
O R D E R
Before the court is plaintiff's motion seeking an additional
award of attorneys' fees, costs, and interest. Document 110. 1
The motion is grounded on legal services rendered in connection
with plaintiff's successful appeal. See Parker v . City of
Nashua, N H , 76 F.3d 9 (1st Cir. 1996). Defendant Francis Sheehan
objects. Document 114.
At outset, the court notes the nearly impossible task
imposed on a trial judge, deprived of the opportunity to read
appellate briefs, hear appellate argument, or participate in
appellate settlement conferences, to assess fees for services
rendered in connection with a successful appeal. As the task is
so assigned, the court proceeds as best it may under the
circumstances.
1 Plaintiff has also moved for expedited consideration of the motion. Document 117. That motion is mooted by the issuance of this order. 1. Attorneys' Fees There can be no dispute that plaintiff is a prevailing party in this litigation. Hensley v . Eckerhardt, 461 U.S. 4 2 4 , 433 (1983). Defendant argues, however, that plaintiff met with limited success, having failed in her cross-appeal, and that a reduction of fees is thus in order. Corder v . Brown, 25 F.3d 833, 840-41 (9th Cir. 1994). Defendant also suggests that many of the listed services for which fees are charged were
duplicative or unnecessary. Lipsett v . Blanco, 975 F.2d 9 3 4 , 938 (1st Cir. 1992).
Review of the itemization of fees, which covers the period between March 2 3 , 1994, and February 1 0 , 1996, demonstrates that at least four attorneys worked at different times on the appeal.2 Moreover, some of the fees sought include time spent in conferences between and among such attorneys. Charges are also made for the travel of more than one attorney to appellate settlement conferences and to the court for oral argument. Furthermore, much of the time spent in research and motion practice i s , the court finds, excessive. The court has made deductions accordingly, resulting in reduction of the charges
2 Although the itemization of claimed charges includes .5 hours for Attorney Eugene Quinn, the court has not been advised of his claimed hourly rate. Accordingly, these charges have been excluded from the computation hereinafter made.
2 claimed to the following allowable awards: Atty Murphy 61.4 hrs @ $150/hr $ 9,210.003 Atty Keefe 7.55 hrs @ $150/hr 1,132.504 Atty Johnston 80.95 hrs @ $ 90/hr 7,285.505
TOTAL $17,628.00.
3 The court deducts from the claimed hours of Attorney Murphy .1 hours on 4/15/94; .1 hours on 5/1/94; .15 hours on 5/4/94; .4 hours on 5/5/94; .2 hours on 5/17/94; 2 hours on 5/24/94; .25 hours on 6/27/94; 1 hour on 6/30/94; .1 hours on 7/11/94; .75 hours on 7/18/94; 3 hours on 8/9/94; .5 hours on 1/17/95; .25 hours on 3/30/95; .75 hours on 3/31/95; .1 hours on 4/24/95; .5 hours on 4/30/95; 1.5 hours on 5/1/95; 2 hours on 5/23/95; 1.4 hours on 5/24/95; 3.9 hours on 5/25/95; 1.2 hours on 5/26/95; .15 hours on 6/12/95; .45 hours on 7/17/95; .2 hours on 8/16/95; .4 hours on 8/17/95; .5 hours on 8/30/95; .2 hours on 9/6/95; .75 hours on 9/8/95; l.75 hours on 9/11/95; 2.65 hours on 9/12/95; .4 hours on 10/3/95; .2 hours on 10/5/95; .75 hours on 10/11/95; .75 hours on 11/1/95; 1 hour on 11/2/95; 1.75 hours on 11/3/95; 1.25 hours on 11/4/95; 1.75 hours on 11/5/95; 2.25 hours on 11/26/95; 1 hour on 2/7/96; and .2 hours on 2/8/96. 4 The claimed hours of Attorney Keefe are reduced by deducting .4 hours on 5/1/95; .25 hours on 5/23/95; .25 hours on 5/25/95; .1 hours on 6/12/95; 1.25 hours on 9/10/95; .6 hours on 9/12/95; and 2.25 hours on 11/6/95. 5 The deductions for the claimed hours of Attorney Johnston include .5 hours on 3/23/94; 2 hours on 3/24/94; .2 hours on 3/25/94; .35 hours on 3/28/94; .5 hours on 3/31/94; .9 hours on 4/12/94; .5 hours on 5/1/94; .2 hours on 5/4/94; .2 hours on 5/5/94; .75 hours on 3/30/95; .1 hour on 3/31/95; .5 hours on 4/28/95; 4 hours on 4/30/95; 4 hours on 5/1/95; .75 hours on 5/13/95; 3.5 hours on 5/24/95; 4 hours on 5/25/95; 4 hours on 5/26/95; 2 hours on 6/1/95; 1.5 hours on 7/20/95; 3 hours on 8/21/95; 1 hours on 8/22/95; .5 hours on 8/29/95; 2.5 hours on 8/30/95; 3 hours on 9/1/95; 3 hours on 9/3/95; 3.5 hours on 9/5/95; 2.5 hours on 9/6/95; 3.5 hours on 9/7/95; 3.5 hours on 9/8/95; 2.5 hours on 9/11/95; 4 hours on 9/12/95; .5 hours on 9/13/95; 1 hour on 10/4/95; 3 hours on 10/9/95; 1.5 hours on 2/7/96; 4 hours on 2/8/96; 4 hours on 2/9/96; and 3 hours on 2/10/96.
3 Additionally, the court awards the paralegal identified as
M.M. the claimed .8 hours at a $55 hourly rate, or $ 4 4 , and
reduces the claimed hours of paralegal J.E.S. from 2.7 to 2 hours
at the same rate, for $110. The total of the amount of attorney
fees, including paralegals, is therefore the sum of $17,782.00.
2. Costs
Plaintiff seeks costs connected with the appeal in the
amount of $1,795. The terminal period involved runs from
April 2 6 , 1994, to November 6, 1995. Defendant challenges
$174.05 of such costs, largely with respect to travel to
appellate settlement conferences.
The law is clear that when costs are computed under 42
U.S.C. § 1988, they are to include reimbursement of reasonable
and necessary attorneys' expenses, which include travel.
Palmigiano v . Garrahy, 707 F.2d 636 (1st Cir. 1983). The court
further finds that appellate settlement conferences are an
integral part of the appellate process, for which such expenses
should be reimbursed.
The court does find that the items of copying cases at
Franklin Pierce Law Center on April 2 6 , 1994, $10; travel and
copying of materials at the same place on August 2 1 , 1995,
$15.70; and the photocopies of LaFave Search and Seizure treatise
on November 2 , 1995, of $10.40 should be deducted from the total
4 of claimed costs. These items are in the possession of plaintiff's counsel, and can be utilized in other cases for other clients. Accordingly, total costs of $1,759.60 are to be awarded to plaintiff.
3. Interest
Suggesting that dichotomy as to received judgment dates is
in order, the plaintiff claims post-judgment interest at
differing rates of interest pursuant to 28 U.S.C. § 1961.6
Defendant objects, contending that only one judgment date,
February 2 , 1994, here applies. Defendant has the better of this
argument. See Friend v . Kolodzieczak, 72 F.3d 1386, 1391-92 (9th
Cir. 1995) (interest runs from the date that entitlement to fees
is secured, rather than from the date that the exact quantum of
fees is s e t ) .
On the other hand, defendant overlooks that post-judgment
interest is computed not on the amount of the verdict alone but
also on the total of verdict, attorney fees, and costs. Such
6 28 U.S.C. § 1961(a) provides for the calculation of post- judgment interest "at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty- two week United States Treasury bills settled immediately prior to the date of the judgment." Subsection (b) of the statute provide that (with exceptions not here applicable) "interest shall be computed daily to the date of payment . . . and shall be compounded annually."
5 interest is computed from the date of any award of such fees and
costs. Wheeler v . John Deere Co., 986 F.2d 413, 415-16 (10th
Cir. 1993).
Computed in such fashion, the total amount due plaintiff is
to be calculated as follows. Verdict $208,000.00
Pre-judgment interest 24,757.87
TOTAL $232,757.87 Interest @ 3.67%, 2/2/94 to 2/2/95 8,542.21 TOTAL $241,300.08 Interest @ 3.67%, 2/2/95 to 2/24/95 533.77 TOTAL $241,833.85 Attorney fees 2/24/95 84,283.90 Costs 2/24/95 7,479.65 TOTAL $333,597.40 Interest @ 3.67%, 2/24/95 to 2/24/96 12,243.02 TOTAL $345,840.42 Interest @ 3.67%, 2/25/96 to 5/30/96 3,329.14 Attorney fees 5/30/96 17,782.00 Costs 5/30/96 1,759.60 TOTAL $368,711.16.
The per diem rate from May 3 0 , 1996, is to run at $36.97.
6 4. Conclusion
As of May 3 0 , 1996, plaintiff is entitled to payment of
$368,711.16, which includes attorney fees, costs, and interest
for services rendered through trial and appeal in this
litigation. From May 3 0 , 1996, to May 3 0 , 1997, the per diem interest rate is $36.97.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
May 3 0 , 1996 cc: Francis G. Murphy, Jr., Esq. Robert E . McDaniel, Esq.