1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-00518-DJC-KJN 12 Plaintiff, 13 v. ORDER
14 LAYTON JOHNSON, et al.,
15 Defendants. 16
17 Presently pending are Plaintiff Anthony Penton’s Motions for Attorney’s Fees 18 and Costs based on Plaintiff’s success in obtaining a judgment a trial. (ECF Nos. 378, 19 401.) Plaintiff initially filed a Motion for Attorney’s Fees and Costs on October 20, 20 2023, (ECF No. 378) but following further post-trial litigation, filed a “Supplemental” 21 Motion (Mot. at (ECF No. 401)) which substantially altered Plaintiff’s requested fees 22 and costs. 23 As the parties briefing is directed to the more recent of the two motions, that is 24 the relevant motion for fees and costs before the Court. The original motion is denied 25 as moot. For the reasons stated below, the Court grants in part and denies in part 26 Plaintiff’s Motion. 27 //// 28 //// 1 I. Defendant Layton Johnson’s Pending Appeal 2 A little over a week after Plaintiff filed the Present Motion for Attorney’s Fees, 3 Defendant Johnson filed a notice of appeal. (See ECF No. 402.) As this notice of 4 appeal was filed after the present motion, the Court is not divested of jurisdiction 5 simply because of the pending appeal. See League of Women Voters of California v. 6 F.C.C., 751 F.2d 986, 990 (9th Cir. 1985). The Court has the discretion to rule on the 7 motion for attorney’s fees, defer its ruling, or dismiss the motion without prejudice. 8 See Fed. R. Civ. P. 58 advisory committee notes 1993 amendment. 9 The Court will rule on the Motion for Attorney’s Fees. 10 II. Request for Attorney’s Fees 11 The prevailing party on a claim brought under 42 U.S.C. § 1983 “is entitled to 12 reasonable attorneys' fees unless special circumstances would render such an award 13 unjust.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014). 14 However, “[t]he district court has discretion in determining what fees are ‘reasonable.’” 15 Id. The lodestar method is typically used in determining reasonable attorney’s fees. 16 Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996). 17 In total, Plaintiff’s Motion requests $947,747,00 in attorney’s fees with a 2.0 18 multiplier applied. The requested fees are broken into separate categories for (1) 19 obtaining a monetary judgment, (2) successfully reopening Plaintiff’s habeas petition, 20 and (3) defending the jury’s verdict against Rule 50 and 59 motions. These shall be 21 assessed separately. 22 A. Monetary Judgment Award 23 For obtaining a monetary judgment at trial, Plaintiff requests $712,500.00 in 24 attorney’s fees. Fees for violation of Section 1983 are capped by the PLRA to 150% of 25 the jury’s award. 42 U.S.C. § 1997e(d)(2). Based on Plaintiff’s counsel’s claim that they 26 worked 5,092.25 hours on the case at the adjusted Criminal Justice Act (“CJA”) rates, 27 Plaintiff’s calculation of attorney’s fees totals $982,903.13. However, Section 28 1997e(d)(2) mandates that the fees be capped at $712,500.00 (150% of the 1 $475,000.00 monetary judgment awarded by the jury). Defendant makes several 2 arguments that further reductions which would bring the total fees below this cap are 3 warranted. 4 1. Reduction for Partial Success 5 The Court will impose a reduction in the hours worked based on the fact that 6 Plaintiff only had success as to a single Defendant. Defendant argues that a 7 discretionary reduction in the calculation of hours worked should be imposed as 8 Plaintiff only obtained partial success as Plaintiff prevailed against a single defendant 9 despite originally suing several defendants. A discretionary reduction on this basis is 10 appropriate. See Webb v. Sloan, 330 F.3d 1158, 1168–70 (9th Cir. 2003). While the 11 Court understands that Plaintiff’s Counsel took efforts to remove hours that were 12 incurred specifically for other defendants who were ultimately dismissed, this does not 13 account for the many hours billed in a mixed or joint fashion. Accordingly, the Court 14 will apply a 20% reduction from the $982,903.13 total amount of fees claimed.1 15 2. Billing Practices 16 Defendant argues that the form of Plaintiff’s Counsel’s billing warrants a 17 reduction as Plaintiff’s Counsel utilizes quarter-hour increments, block-billing, and 18 vague entries. The Court is unpersuaded by this argument. Defendant mostly 19 provides broad argument and citations about the inadequacies with quarter-hour 20 billing and block billing. It may be correct that these billing practices are imprecise 21 and can present issues for assessing reasonable attorney’s fees, but this is not a 22 sufficient basis to impose a substantial reduction in attorney’s fees. Defendant 23 disputes some entries, but many arguments raised do not appear to provide a 24 legitimate basis for objection. For example, Defendant complains that Plaintiff’s 25
26 1 Courts generally impose a partial success reduction by reducing the hours worked. See Webb, 330 F.3d at 1168–70. As Plaintiff voluntarily applied different rates related to the CJA rate in place at the 27 time the hours were incurred, the Court cannot simply reduce the total hours worked. Instead, the Court will simply apply a 20% reduction to total fees for obtaining the monetary judgment. This 28 distinction makes no difference in the ultimate calculation of attorney’s fees. 1 Counsel billed “multiple hours” by “multiple attorneys” preparing for oral argument 2 before the Ninth Circuit “even though one attorney argued.” (Opp’n (ECF No. 404) at 3 6.) Such arguments seem without merit; it is entirely natural to have multiple attorneys 4 involved in preparation for appellate argument. The documentation provided by 5 Defendant in which specific entries are highlighted as duplicative, vague, or involving 6 “internal communication” are similarly unpersuasive. (ECF No. 404-1 at 2.) 7 Notably, Plaintiff’s Counsel has also represented that they made substantial cuts 8 to their hours calculation including removing fees billed by some associates. This also 9 includes not billing for any time for Attorney Harrison Frahn in 2023, including for trial 10 preparation or trial itself — events that typically involve significant expenditures of 11 time. Even if the hours worked were inflated (which the Court does not conclude to 12 be the case), these voluntary reductions should more than offset those allegedly 13 inflated hours. 14 Defendant also makes a passing complaint that the billing includes “billing for 15 clerical work[,]” though Defendant does not specify in the Opposition or declaration 16 attached what clerical work was improperly included. The Court notes that what is 17 considered “clerical” is typically construed narrowly as the line between secretarial 18 work and clerical work can be gray. See Mitchell v. Chavez, No. 1:13–cv–01324–DAD– 19 EPG, 2018 WL 3218364, at *12 (E.D. Cal. June 29, 2018). From a review of the billing 20 records provided by Plaintiff’s Counsel, it is not clearly apparent that any of the billed 21 hours are for purely clerical work. Thus, any objection on this ground is denied. 22 3. CJA Rate 23 The hourly rate for fees is capped at 150% of the maximum authorized hourly 24 rate for court appointed counsel under the CJA. 42 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-00518-DJC-KJN 12 Plaintiff, 13 v. ORDER
14 LAYTON JOHNSON, et al.,
15 Defendants. 16
17 Presently pending are Plaintiff Anthony Penton’s Motions for Attorney’s Fees 18 and Costs based on Plaintiff’s success in obtaining a judgment a trial. (ECF Nos. 378, 19 401.) Plaintiff initially filed a Motion for Attorney’s Fees and Costs on October 20, 20 2023, (ECF No. 378) but following further post-trial litigation, filed a “Supplemental” 21 Motion (Mot. at (ECF No. 401)) which substantially altered Plaintiff’s requested fees 22 and costs. 23 As the parties briefing is directed to the more recent of the two motions, that is 24 the relevant motion for fees and costs before the Court. The original motion is denied 25 as moot. For the reasons stated below, the Court grants in part and denies in part 26 Plaintiff’s Motion. 27 //// 28 //// 1 I. Defendant Layton Johnson’s Pending Appeal 2 A little over a week after Plaintiff filed the Present Motion for Attorney’s Fees, 3 Defendant Johnson filed a notice of appeal. (See ECF No. 402.) As this notice of 4 appeal was filed after the present motion, the Court is not divested of jurisdiction 5 simply because of the pending appeal. See League of Women Voters of California v. 6 F.C.C., 751 F.2d 986, 990 (9th Cir. 1985). The Court has the discretion to rule on the 7 motion for attorney’s fees, defer its ruling, or dismiss the motion without prejudice. 8 See Fed. R. Civ. P. 58 advisory committee notes 1993 amendment. 9 The Court will rule on the Motion for Attorney’s Fees. 10 II. Request for Attorney’s Fees 11 The prevailing party on a claim brought under 42 U.S.C. § 1983 “is entitled to 12 reasonable attorneys' fees unless special circumstances would render such an award 13 unjust.” Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1110 (9th Cir. 2014). 14 However, “[t]he district court has discretion in determining what fees are ‘reasonable.’” 15 Id. The lodestar method is typically used in determining reasonable attorney’s fees. 16 Morales v. City of San Rafael, 96 F.3d 359, 363–64 (9th Cir. 1996). 17 In total, Plaintiff’s Motion requests $947,747,00 in attorney’s fees with a 2.0 18 multiplier applied. The requested fees are broken into separate categories for (1) 19 obtaining a monetary judgment, (2) successfully reopening Plaintiff’s habeas petition, 20 and (3) defending the jury’s verdict against Rule 50 and 59 motions. These shall be 21 assessed separately. 22 A. Monetary Judgment Award 23 For obtaining a monetary judgment at trial, Plaintiff requests $712,500.00 in 24 attorney’s fees. Fees for violation of Section 1983 are capped by the PLRA to 150% of 25 the jury’s award. 42 U.S.C. § 1997e(d)(2). Based on Plaintiff’s counsel’s claim that they 26 worked 5,092.25 hours on the case at the adjusted Criminal Justice Act (“CJA”) rates, 27 Plaintiff’s calculation of attorney’s fees totals $982,903.13. However, Section 28 1997e(d)(2) mandates that the fees be capped at $712,500.00 (150% of the 1 $475,000.00 monetary judgment awarded by the jury). Defendant makes several 2 arguments that further reductions which would bring the total fees below this cap are 3 warranted. 4 1. Reduction for Partial Success 5 The Court will impose a reduction in the hours worked based on the fact that 6 Plaintiff only had success as to a single Defendant. Defendant argues that a 7 discretionary reduction in the calculation of hours worked should be imposed as 8 Plaintiff only obtained partial success as Plaintiff prevailed against a single defendant 9 despite originally suing several defendants. A discretionary reduction on this basis is 10 appropriate. See Webb v. Sloan, 330 F.3d 1158, 1168–70 (9th Cir. 2003). While the 11 Court understands that Plaintiff’s Counsel took efforts to remove hours that were 12 incurred specifically for other defendants who were ultimately dismissed, this does not 13 account for the many hours billed in a mixed or joint fashion. Accordingly, the Court 14 will apply a 20% reduction from the $982,903.13 total amount of fees claimed.1 15 2. Billing Practices 16 Defendant argues that the form of Plaintiff’s Counsel’s billing warrants a 17 reduction as Plaintiff’s Counsel utilizes quarter-hour increments, block-billing, and 18 vague entries. The Court is unpersuaded by this argument. Defendant mostly 19 provides broad argument and citations about the inadequacies with quarter-hour 20 billing and block billing. It may be correct that these billing practices are imprecise 21 and can present issues for assessing reasonable attorney’s fees, but this is not a 22 sufficient basis to impose a substantial reduction in attorney’s fees. Defendant 23 disputes some entries, but many arguments raised do not appear to provide a 24 legitimate basis for objection. For example, Defendant complains that Plaintiff’s 25
26 1 Courts generally impose a partial success reduction by reducing the hours worked. See Webb, 330 F.3d at 1168–70. As Plaintiff voluntarily applied different rates related to the CJA rate in place at the 27 time the hours were incurred, the Court cannot simply reduce the total hours worked. Instead, the Court will simply apply a 20% reduction to total fees for obtaining the monetary judgment. This 28 distinction makes no difference in the ultimate calculation of attorney’s fees. 1 Counsel billed “multiple hours” by “multiple attorneys” preparing for oral argument 2 before the Ninth Circuit “even though one attorney argued.” (Opp’n (ECF No. 404) at 3 6.) Such arguments seem without merit; it is entirely natural to have multiple attorneys 4 involved in preparation for appellate argument. The documentation provided by 5 Defendant in which specific entries are highlighted as duplicative, vague, or involving 6 “internal communication” are similarly unpersuasive. (ECF No. 404-1 at 2.) 7 Notably, Plaintiff’s Counsel has also represented that they made substantial cuts 8 to their hours calculation including removing fees billed by some associates. This also 9 includes not billing for any time for Attorney Harrison Frahn in 2023, including for trial 10 preparation or trial itself — events that typically involve significant expenditures of 11 time. Even if the hours worked were inflated (which the Court does not conclude to 12 be the case), these voluntary reductions should more than offset those allegedly 13 inflated hours. 14 Defendant also makes a passing complaint that the billing includes “billing for 15 clerical work[,]” though Defendant does not specify in the Opposition or declaration 16 attached what clerical work was improperly included. The Court notes that what is 17 considered “clerical” is typically construed narrowly as the line between secretarial 18 work and clerical work can be gray. See Mitchell v. Chavez, No. 1:13–cv–01324–DAD– 19 EPG, 2018 WL 3218364, at *12 (E.D. Cal. June 29, 2018). From a review of the billing 20 records provided by Plaintiff’s Counsel, it is not clearly apparent that any of the billed 21 hours are for purely clerical work. Thus, any objection on this ground is denied. 22 3. CJA Rate 23 The hourly rate for fees is capped at 150% of the maximum authorized hourly 24 rate for court appointed counsel under the CJA. 42 U.S.C. § 1997e(d)(3). The CJA 25 rate is set by the Judicial Conference as required by 18 U.S.C. § 3006A. These are the 26 rates over the course of Plaintiff’s counsel’s representation: 27 //// 28 //// 1 Relevant Period CJA Rate 150% CJA Rate 2 01/01/2024 to present $172.00 $258.00 3 01/01/2023 through 12/31/2023 $164.00 $246.00 4 01/01/2022 through 12/31/2022 $158.00 $237.00 5 01/01/2021 through 12/31/2021 $155.00 $232.50 6 01/01/2020 through 12/31/2020 $152.00 $228.00 7 02/15/2019 through 12/31/2019 $148.00 $222.00 8 03/23/2018 through 02/14/2019 $140.00 $210.00 9 05/05/2017 through 03/22/2018 $132.00 $198.00 10 01/01/2016 through 05/04/2017 $129.00 $193.50 11
12 Importantly, these numbers, when multiplied by 150%, represents a cap on the 13 hourly rate. Courts consider what is an appropriate hourly rate separately. See e.g., 14 Mitchell, 2018 WL 3218364, at *5. As reasonable attorney’s fees in this district fully 15 exceed this cap — even when accounting for lesser experience — the cap amount is 16 typically what is used to calculate the lodestar amount. See Id. at *6. 17 Plaintiff correctly notes that attorney’s fees, as well as the cap, are calculated 18 based on the time at which they are sought, not when the fees were incurred. See Id. 19 (collecting cases). Nevertheless, Plaintiff has voluntarily chosen to calculate rates 20 based on when they occurred instead, despite being able to reasonably request the 21 higher, present rate under the law. The rates applied by Plaintiff are thus reasonable. 22 The Court does note that Plaintiff’s Counsel has billed hours for work 23 performed by paralegals. Plaintiff can request fees for paralegal work subject to the 24 same 150% CJA cap under the PLRA. Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 25 (1989); Perez v. Cate, 632 F.3d 553, 554 (9th Cir. 2011). However, as noted above, 26 there is an important distinction between the cap and a reasonable rate. Courts in this 27 district have regularly awarded $125 per hour as a reasonable rate for paralegal work. 28 Rosenof v. Kijakazi, No. 2:20-cv-01491-CKD, 2022 WL 2442235, at *3 (E.D. Cal. July 5, 1 2022) (collecting cases). The records provided by Plaintiff show billing for 468.5 2 paralegal hours for which the $125 per hour rate will be applied, totaling $58,562.50 3 in fees. 4 Finally, review of the provided records also shows what appears to be billing for 5 non-attorney or paralegal staff totaling 121.75 hours. The Court will consider these 6 staff members to perform the role of legal assistants. Courts in this district generally 7 consider a rate of $100 per hours to be reasonable for legal assistants, which the 8 Court will apply here. See Hoirup v. Pro. Eng. In California Gov., No. 02-cv-662-GEB- 9 PAN, 2006 WL 2791158, at *5 (E.D. Cal. Sept. 27, 2006) (“the prevailing hourly rate for 10 legal assistants is $110”); see also McAfee v. Metro. Life Ins., 625 F. Supp. 2d 956, 975 11 (E.D. Cal. 2008) (finding a $110 rate for legal assistants to be reasonable). This results 12 in a total fee of $12,175.00 for hours worked by legal assistants. 13 4. Totaling Monetary Judgment Award Fees 14 After the reductions of the paralegal and legal assistant hours, the Court 15 applies the rates proposed by Plaintiff for the attorney work performed.2 The Court 16 will then apply the 20% reduction for partial success. This results in the following 17 calculation of fees accrued in connection with obtaining monetary judgment award:
18 19 Fees for Attorneys $ 849,524.98 20 Fees for Paralegals $ 58,562.50 21 Fees for Legal Assistants + $ 12,175.00 22 Total Before Reduction $ 920,262.48 23 20% Partial Success Reduction — $ 184.052.50 24 Total After Reduction $ 736,209.98
25 26 ////
27 2 As noted, this amount is less than the amount that could be sought as the cap is typically calculated based on the time it is sought. Mitchell, 2018 WL 3218364, at *6. 28 1 As this total amount ($736,209.98) exceeds Section 1997e(d)(2) cap of 2 $712,500.00, the Court will instead only award $712,500.00 in attorney’s fees accrued 3 in connection with obtaining the monetary judgment award. 4 5. Portion of Judgment to Satisfy Attorney’s Fees 5 The PLRA requires that the Court apply 25% of Plaintiff’s judgment be applied 6 to satisfy the awarded attorney’s fees. Murphy v. Smith, 583 U.S. 220, 228 (2018). As 7 such, 25% of Plaintiff’s judgment shall go to pay the required award. 8 6. Non-Monetary Relief for Habeas Proceedings 9 Plaintiff seeks attorney’s fees related to the successful re-opening of his habeas 10 petition, arguing that this is “non-monetary relief” for which he is entitled attorney’s 11 fees. (Mot. at 11–13.) Plaintiff does not cite any authority that directly supports that 12 such fees are warranted based on the reopening of another, separate case. Plaintiff 13 argues that the habeas court relied on the Ninth Circuit’s decision in this case in 14 reopen the habeas proceedings and analogizes this to Dannenberg v. Valadez, 338 15 F.3d 1070 (9th Cir. 2003), where a prisoner plaintiff was entitled to fees for obtaining 16 non-monetary relief after he successfully got a report expunged from his prison 17 records. Dannenberg is meaningfully different from the present case as there, the 18 records were expunged as the result of an injunction issued by the same district court 19 in which the plaintiff subsequently sought attorney’s fees. Id. at 1072. Here, while 20 Plaintiff may have ultimately been successful in reopening the habeas action based in 21 part on the Ninth Circuit’s ruling, that was not a result expressly ordered by this court 22 or the Ninth Circuit, nor was it relief granted by the same. Accordingly, Plaintiff’s 23 request for attorney’s fees based on the re-opening of the habeas proceedings is 24 denied. 25 7. Defense of Verdict 26 Plaintiff is entitled to attorney’s fees for successfully defending the verdict 27 against Defendant’s post-judgment motions. The parties disagree, however, as to 28 whether these fees are capped by Section 1997e(d). 1 Plaintiff argues that the Subsection (d)(2) cap (which caps damages relative to 2 the judgment amount) does not apply and cites Dannenberg and Woods v. Carey, 722 3 F.3d 1177 (9th Cir. 2013) for the proposition that such fees are separate from those 4 awarded as part of a monetary judgment within the meaning of Section 1997e(d)(2). 5 Plaintiff specifically quotes Woods as stating “[Section] (d)(2), applies to the limited 6 circumstance of attorney's fees awarded in conjunction with securing ‘a monetary 7 judgment,’ not to fees for services performed in the court of appeals.” Id. at 1182. 8 Plaintiff’s interpretation that this cap does not apply to fees accrued in 9 defending the verdict is correct. Woods clearly granted uncapped fees for defending 10 a verdict that was exclusively monetary. Id. Thus, Plaintiff’s requested fees in defense 11 of the verdict are not subject to Section 1997e(d)(2)’s cap. 12 With that said, the rate cap under Subsection (d)(3) does still apply. In finding 13 that the Subsection (d)(2) cap did not apply, the Woods court relied closely on the 14 language of that subsection which specifically states that it applies “[w]henever a 15 monetary judgment is awarded . . . .” 42 U.S.C. § 1997e(d)(2); see Woods, 722 F.3d at 16 1181–82. By contrast, Subsection (d)(3) has no such limiting language. Plaintiff argues 17 that the Court should find that the Subsection (d)(3) should not apply as its language 18 makes it a limitation on fees awarded “in an action” and that the “action” in this case 19 ended when final judgment was entered.3 (Reply (ECF No. 406) at 4–5.) Plaintiff does 20 not cite any authority in support of this idea and the Court is not persuaded that this 21 language is intended to uncap the rate for post-judgment damages. 22 Accordingly, the Court will apply the same CJA capped rate utilized above to 23 fees accrued defending the verdict, though it will not include it in the cap related to 24 the monetary judgment. The documentation provided by Plaintiff indicates 130.75 25 hours were accrued by attorneys, 2.75 by paralegals, and 1.25 by staff (again 26 //// 27 3 At oral argument, Plaintiff’s counsel seemed to concede that the rate cap still applied, but this issue 28 was contested in the briefing. 1 considered to be legal assistants). The Court applies the present CJA rate for 2 attorneys and the rates identified above for paralegals and legal assistants.
3 Attorneys 130.75 hours $258/hour $ 33,733.50 4 Paralegals 2.75 hours $125/hour $ 343.75 5 Legal Assistants 1.25 hours $100/hour $ 125.00 6 Total $ 34,202.25 7
8 As discussed, this $34,202.25 amount is not counted toward the cap for fees in 9 obtaining a monetary judgment award under Section 1997e(d)(2). 10 8. Multiplier 11 In light of the above, the Court has granted fees for obtaining a monetary 12 judgment at the capped amount of $712,500.00 and $34,202.25 for fees not capped 13 by Section 1997e(d)(2). Plaintiff seeks a 2.0 multiplier fee enhancement of the 14 attorney’s fees. 15 As an initial matter, Defendant correctly notes that a multiplier cannot bring 16 any attorney’s fees subject to the Section 1997e(d)(2) over that cap amount. In Kelly v. 17 Wenger, 822 F.3d 1085 (9th Cir. 2016), the Ninth Circuit examined whether fee 18 enhancements were permitted by the PLRA. There the court found that the PLRA 19 “limits the hours and the hourly rate used in calculating the lodestar figure” but did 20 not “cap the total amount of attorney's fees awards in cases seeking declaratory and 21 injunctive relief . . . .” Id. at 1101 (emphasis added). In doing so, it noted the 22 difference between the express limitation on attorney’s fee awards in Subsection 23 (d)(2), concerning monetary judgment awards, and the lack of any such limitation in 24 Subsection (d)(3). Id. Parsons v. Ryan, which Plaintiff cites as supporting that 25 multipliers can be used to request attorney’s fees exceeding the Subsection (d)(2) cap, 26 relies on Kelly in stating that “[t]he PLRA . . . authorizes multipliers to the base hourly 27 rate above the cap set by 42 U.S.C. § 1997e(d)(1).” 949 F.3d 443, 466 (9th Cir. 2020). 28 Both Kelly and Parsons are consistent that multipliers can be applied to increase the 1 lodestar amount. Neither of these decisions supports neutralizing the hard cap on 2 awards for obtaining monetary judgments imposed by 42 U.S.C. § 1997e(d)(2) by 3 applying a multiplier. 4 In determining whether an enhancement is warranted, courts considered the 5 Kerr factors which are: 6 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to 7 perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of 8 the case, (5) the customary fee, (6) whether the fee is fixed 9 or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results 10 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the 11 nature and length of the professional relationship with the 12 client, and (12) awards in similar cases. 13 Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996). Other factors are 14 considered subsumed within the lodestar calculation including: “(1) the novelty and 15 complexity of the issues, (2) the special skill and experience of counsel, (3) the quality 16 of representation, . . . (4) the results obtained,” Id. at 364 n.9 (citations omitted). 17 Plaintiff has not established that a multiplier is warranted in this instance. A fee 18 enhancement is only applied when an applicant produces “’specific evidence’ 19 supporting the award” as being necessary to provide fair and reasonable 20 compensation. See Perdue v. Kenny, 559 U.S. 542, 553 (2010). While Plaintiff’s 21 success at obtaining a jury verdict in his favor after having his complaint previously 22 dismissed is impressive, the results obtained are subsumed within the lodestar 23 calculation. See Morales, 96 F.3d at 364 n.9. Plaintiff argues that “without a multiplier, 24 attorney’s like those at Simpson Thacher would not be incentivized to represent 25 community members who are most vulnerable like Penton, who make present as 26 unsympathetic despite having meritorious claims.” (Mot. at 16–17.) However, even 27 without the multiplier, the fee award is substantial and Plaintiff has failed to present 28 //// 1 specific evidence that shows that not applying a multiplier would disincentivize law 2 firms from representing prisoners.4 3 Accordingly, Plaintiff’s request for the application of a fee enhancement will be 4 denied. Plaintiff will be awarded $712,500.00 in attorney’s fees for obtaining a 5 monetary judgment (with 25% of Plaintiff’s judgment applied to that amount) and 6 $34,202.25 in attorney’s fees accrued defending that verdict. 7 III. Costs 8 Plaintiff is also entitled to reasonable costs besides attorney’s fees. 42 U.S.C. 9 § 1988(d). Plaintiff has requested a total of $238,120.69 in costs be taxed. (Mot. at 10 19.) Defendant objects to several items included within these costs. 11 Despite Plaintiff’s arguments to the contrary, Plaintiff is not entitled to costs for 12 expert fees. The Court’s ability to award expert fees under 42 U.S.C. § 1988(c) does 13 not extend to cases brought under 42 U.S.C. § 1983. Doe v. Keala, 361 F. Supp. 2d 14 1171, 1190–91 (D. Haw. 2005); Ruff v. County of Kings, 700 F. Supp. 2d 1225, 1243 15 (E.D. Cal. 2010). Thus, Plaintiff’s request for $26,118.00 is “Expert Expenses” will not 16 be granted. 17 Defendant raises other complaints about the costs billed but each of these is 18 unpersuasive. Defendant “urges the court to reduce [trial presentation services] by 19 half” on the grounds that the invoices do not provide sufficient detail and include 20 duplicative work. (Opp’n at 10.) However, on review of the records submitted by the 21 Plaintiff (ECF No. 401-9 at 32–39), the requested costs for trial presentation services 22 appear well documented and non-duplicative. Defendant also argues that the 23 lodging costs submitted “includes an extra five nights that were not required and not 24 reasonable” but appears to not account for the last minute Ninth Circuit oral argument 25 on Defendant’s motion to stay trial proceedings pending the interlocutory appeal filed 26
27 4 Though it does not weigh in the Court’s determination, the Court notes that due to the limitation of 42 U.S.C. § 1997e(d)(2), it is not clear that the relatively small amount of extra fees awarded by a multiplier 28 would actually serve the purpose of incentivizing representation for prisoners anyway. 1 by Defendant and the Final Status Conference the week before trial. The requested 2 cost is thus reasonable. 3 Defendant also passingly mentions that “Plaintiff provides no authority for the 4 proposition that Defendant must reimburse for the Plaintiff’s travel.” (Opp’n at 11.) 5 Defendant provides no authority that such reimbursement would be improper but a 6 review of relevant case law shows that such out-of-pocket costs are inappropriate 7 when sought as costs but can be considered part of attorney’s fees. See Victory 8 Processing, LLC v. Knudsen, No. 17-cv-0027-H-CCL, 2021 WL 587905, at *7 (D. Mont. 9 Feb. 16, 2021); see also Banta v. City of Merrill, No. 06-cv-3003-CL, 2007 WL 3543445, 10 at *5 n.2 (D. Or. Nov. 14, 2007). However, as the Plaintiff’s attorney’s fees are already 11 capped for fees incurred in obtaining the monetary judgment, the Court will simply 12 deduct $494.74 in flight costs for Plaintiff and $1,503.89 in hotel costs for Plaintiff from 13 the requested costs. 14 Finally, Defendant objects that the $59,211.34 Plaintiff requests for fees 15 accrued for legal research. While these fees appear to have reasonable records 16 associated with them (ECF No. 401-9 81–84), they appear to well exceed what is 17 normally requested in other cases. See e.g., Dowd v. City of Los Angeles, 28 F. Supp. 18 3d 1019, 1068 (C.D. Cal. 2014) (approving $2,485.76 in recoverable costs for parking 19 fees, messenger fees, copying charges, transcript fees, shipping costs and Westlaw 20 legal research costs); Zeigler v. County of San Luis Obispo, No. 17-cv-9295-MWF- 21 AFMx, 2023 WL 3432238, at *18 (C.D. Cal. Mar. 1, 2023) (awarding $429.50 in legal 22 research costs); Smith Roofing and Siding, L.L.C. v. Smith, 2024 WL 1308983, at *11 23 (D. Idaho Mar. 26, 2024) (approving costs of $622.00 “for fees related to filing, service, 24 and legal research[]”). Accordingly, the Court will reduce these costs to $10,000.00. 25 Given, the above, the Court approves $160,792.72 in taxed costs. 26 //// 27 //// 28 //// 1 IV. Conclusion 2 In accordance with the above, IT |S HEREBY ORDERED that: 3 1. Plaintiff's Supplemental Motion for Attorney's Fees (ECF No. 401) is 4 GRANTED IN PART and DENIED IN PART, as described above; 5 2. Plaintiff's Motion for Attorney's Fees (ECF No. 378) is DENIED AS MOOT; 6 and 7 3. Plaintiff is awarded $712,500.00 in attorney's fees for obtaining a 8 monetary judgment (with 25% of Plaintiff's judgment to be applied to 9 those fees), $34,202.25 attorney’s fees for defending the judgment, and 10 $160,792.72 in costs. 11 12 IT IS SO ORDERED. 13 | Dated: _November 12, 2024 “Daniel J CoD tto— Hon. Daniel alabretta 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 penton’ 1cv00518.attorneys_fees 23 24 25 26 27 28 13