Opinion
Case No. 02CV1726-BTM (WMC).
September 22, 2005
ORDER AWARDING ATTORNEY'S FEES AND EXPENSES
On March 29, 2005, the Court granted in part and denied in part the parties' cross summary judgment motions. The Court found that Defendants infringed Plaintiffs' First Amendment rights in the June 2002 open enrollment period by providing the optional insurance plans to union members only. Similarly, the Court concluded that Defendants' unlawfully coerced Plaintiffs in violation of the First Amendment in the June 2003 open enrollment period by allowing nonunion employees, who had voted against becoming part of an agency shop, to enroll in the optional dental plans if they "voluntarily" paid the agency fee (or the conscientious objector fee) that agency shop employees were required to pay. Accordingly, the Court awarded Plaintiffs Susan Brannian, David Cornacchia and Jennifer Shen each nominal damages in the amount of two dollars (one dollar for each First Amendment violation).
The Court determined that Plaintiff Leona Gulck lacked standing to seek nominal damages and therefore dismissed her claims without prejudice. Additionally, because Plaintiffs' claims for declaratory and injunctive had already been found moot, the Court denied Plaintiffs' summary judgment motion as to those claims.
The Court also briefly addressed the issue of Plaintiffs' attorney's fees and noted that such a decision was in its discretion and better adjudicated on a separate motion for attorney's fees. On April 14, 2005, Plaintiffs filed a motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988. Plaintiffs seek $187,110 in attorney's fees and $7,171.34 in expenses. Defendants oppose Plaintiffs' motion arguing that Plaintiffs are not entitled to attorney's fees at all or, in the alternative, to a lesser amount. For the reasons expressed below, the Court awards Plaintiffs $142,440 in attorney's fees and $30.75 in out-of-pocket expenses.
Plaintiffs initially sought $168,960 in attorney fees. Plaintiffs' reply brief indicates that their counsel billed $18,150 in researching and responding to both Defendants' opposition briefs. (Pls.' Reply to MEA's Opp'n at 10, n. 18.) Thus, Plaintiffs request a total of $187,110 in attorney's fees.
Plaintiffs originally requested $7039.34 in travel related and miscellaneous expenses. However, Plaintiffs, in their reply, conceded that $28 in telephone calls on a hotel bill were improperly included in their original calculation of costs. (Pls.' Reply to MEA's Opp'n at 10, n. 18.) Plaintiffs reduced their request for costs by that amount. (Id.) Plaintiffs' also subsequently added $160 for their pro hac vice admission fee that was rejected as taxable costs by the Clerk of Court. (Id.) Thus, Plaintiffs request a total of $7170.34 in expenses.
I. BACKGROUND
On August 29, 2002, Plaintiffs filed this action against the Municipal Employees Association ("MEA") and the City of San Diego (collectively "Defendants"). Plaintiffs allege that Defendants unlawfully coerced nonunion employees to join the union in violation of the First Amendment by failing to provide them eligibility for enrollment in dental and vision plans under the employer-provided Flexible Benefits Plan.
Plaintiffs, nonunion employees of the City of San Diego ("the City"), are exclusively represented for the purposes of collective bargaining by Defendant MEA. Since 1986, as a result of bargaining between the City and MEA, city employees have had access to a Flexible Benefits Plan ("the Plan") which provides each employee, regardless of union membership, with an annual lump sum allocation of pre-tax dollars ("Flex funds") to spend on various programs and insurance options. Employees are required to choose both a health insurance plan (unless eligible for a waiver) and a life insurance plan with their Flex funds. If an employee has Flex funds left over, he or she may select other options, such as adding to their 401(k) Plan, enrolling in optional insurance plans, or having the excess funds returned as a taxable cash payment. If an employee fails to complete enrollment during the open enrollment period (which occurs once annually in June), the City automatically continues the employee's health and life insurance plan choices from the prior year and cancels all other benefit options. Any remaining monies are paid as ordinary taxable income.
Employees represented by the MEA are divided into four separate bargaining units: (1) the Professional unit; (2) the Supervisory unit; (3) the Administrative and Field Service unit; and (4) the Technical unit. Plaintiffs filed this class action suit on behalf of nonunion employees assigned to the Professional unit, the Supervisory unit, and the Administrative Support and Field Service unit. The Technical unit, which voted for agency shop, imposes a mandatory agency fee and therefore offers dental and vision plans to all its members.
For the 2002-2003 fiscal year, the annual lump sum allocation was $4,725. For the 2003-2004 fiscal year it was $5,125. Most recently, for the 2004-2005 fiscal year, the lump sum allocation was $5,575. (See Pls.' Mot. for Summ. J. at 17.) This allocation is the same for all employees, union and nonunion alike.
As part of its collective bargaining agreement with the City, MEA is required to offer only health and life insurance plans to all City employees. As of July 1, 1987, MEA began offering optional dental and vision insurance as part of the Flexible Benefits Plan menu of options, but only to its union members.
For the June 2003 open enrollment, the City and MEA agreed that nonunion employees could enroll in the dental and vision insurance plans if they voluntarily paid a "fair share" agency fee that covered the cost of MEA's representational, collective bargaining and contract enforcement activities. The agency fee was less than what members paid in union dues. In addition, both union members and agency fee payers had to pay the actual insurance premiums for dental and vision plans. Nonunion employees who did not pay the agency fee remained ineligible to use their remaining Flex funds for the optional dental and vision plans.
In 2004, the City and MEA amended their collective bargaining agreement — effective until June 30, 2005 — so that for the June 2004 open enrollment period any employee in MEA's bargaining unit, regardless of whether they were a union member, an agency fee payer, or a non-union employee, could enroll in the dental and vison care plans under the Plan. On May 10, 2004, the City Council unanimously adopted this amendment, entitled Resolution Number R-299186, in closed session and then again in open session.
The signed agreement stated that "any employee in MEA's bargaining units will be eligible to enroll in the MEA sponsored Dental and Eye Care Plans offered under the Flexible Benefit Plan, whether the employee is a member of MEA, an agency fee payer, or a non-union employee." (Castleman Decl. Ex. A.)
II. DISCUSSION
In a § 1983 action, the district court, in its discretion, may award the prevailing party a reasonable attorney's fee as part of its costs. 42 U.S.C. § 1988. "[I]n order to qualify for attorney's fees under § 1988, a plaintiff must be a `prevailing party.'" Farrar v. Hobby, 506 U.S. 103, 109 (1992). A plaintiff who wins nominal damages in a § 1983 action is a prevailing party under § 1988 and therefore may be eligible for attorney's fees.See id. at 112 ("We therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988."); Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995). As the Court previously held in its March 29, 2005 Order, Plaintiff's are a "prevailing party" under § 1988 because the Court awarded them nominal damages in their § 1983 action. As such, Plaintiffs are eligible for attorney's fees, but are not automatically entitled to them. Wilcox v. City of Reno, 42 F.3d 550, 555 (9th Cir. 1994) ("[I]f a lawsuit achieves nothing other than an award of nominal damages, the prevailing party might deserve to `receive no attorney's fees at all.'") (quoting Farrar, 506 U.S. at 115) (emphasis in original); Romberg, 48 F.3d at 455. Thus, the Court must first determine if Plaintiffs are entitled to attorney's fees, and, if so, calculate the reasonable award. A. ENTITLEMENT TO ATTORNEY'S FEES
The Ninth Circuit has clearly set out the test to determine whether a plaintiff who was awarded only nominal damages is entitled to attorney's fees. See Benton v. Oregon Student Assistance Comm'n, ___ F.3d ___, 2005 WL 2036224, *4 (9th Cir. August 25, 2005); Wilcox, 42 F.3d at 555; Farrar, 506 U.S. at 115. Most recently in Benton, the Ninth Circuit confirmed that an "award of nominal damages is not enough' to justify an award of attorney's fees." 2005 WL 2036224 at *4 (quoting Wilcox, 42 F.3d at 555). To award fees after a judgment for only nominal damages, the district court "must point to some way in which the litigation succeeded, in addition to obtaining a judgment for nominal damage." Wilcox, 42 F.3d at 555 (emphasis in original).See also Benton, 2005 WL 2036224 at *4. "For example, `[i]f the lawsuit achieved other tangible results — such as sparking a change in policy or establishing a finding of fact with potential collateral estoppel effects — such results will, in combination with an enforceable judgment for a nominal sum, support an award of fees.'" Benton, 2005 WL 2036224 at *4 (quoting Wilcox, 42 F.3d at 555).
Other factors recognized by Justice O'Connor in her concurring opinion in Farrar may also serve to support an award of fees when the plaintiff receives only nominal damages. Id. See Farrar, 506 U.S. at 121 (O'Connor, J., concurring). These factors include "the significance of the legal issue on which the plaintiff claims to have prevailed" and whether the success "accomplished some public goal." Farrar, 506 U.S. at 121 (O'Connor, J., concurring). See also Benton, 2005 WL 2036224 at *4 ("We have approved consideration of these factors.") (citing Cummings v. Connell, 402 F.3d 936, 947 (9th Cir. 2005).
Under this standard, the Court finds that Plaintiffs here are entitled to attorney's fees. Clearly, Plaintiffs secured other tangible results in addition to their judgment for nominal damages. First, Plaintiffs' litigation sparked a change in the policy at issue not once but twice. When Plaintiffs initiated this action in 2002, nonunion employees could not, under any circumstances, use their remaining Flex funds to enroll in the MEA sponsored dental insurance plan. For the 2003 open enrollment period, Defendants changed the policy to allow nonunion members to enroll in the optional insurance plans if they voluntarily paid the full agency fee (even though many non-union members, like Plaintiffs, had previously voted against becoming part of an agency shop). Plaintiffs continued their litigation contending that this changed policy nonetheless violated their First Amendment rights. Plaintiffs' moved to certify their case as a class action. In response, Defendants once again amended their poicy effective for the 2004 open enrollment period. This time, Defendants amended the policy to explicitly allow all employees to use their Flex funds to enroll in the optional dental and vision plans regardless of whether they were a union member, an agency fee payer, or a nonunion employee. Thus, Plaintiffs sparked a major change in the policy that now allows all employees to enroll in the optional insurance plans — exactly the relief Plaintiffs' initially sought for themselves and all other nonunion employees.
Defendants initially argued that Buckhannon Board and Care Home, Inc., v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001) precluded the Court from looking to whether Plaintiffs' litigation sparked any change in Defendants' policy in determining if Plaintiffs are entitled to reasonable attorney's fees. However, Benton makes perfectly clear that Buckhannon does not control "the factors to be applied in determining the reasonableness of an attorney's fee award to a prevailing party." 2005 WL 2036224 at *5 ("Moreover, nothing in Buckhannon suggests that, in assessing the success of a nominal damages plaintiff for purposes of determining the reasonableness of a fee award, a district court cannot consider the factors set forth in Justice O'Connor's Farrar concurrence and our decision in Wilcox.").
Additionally, Plaintiffs' litigation has established "a finding of fact with potential collateral estoppel effects." Wilcox, 42 F.3d at 555. The precedent set by this case now makes clear that in a cafeteria-style insurance policy, unions cannot bar nonunion members access to the optional insurance plans or require the payment of an overbroad "voluntary" agency fee. Indeed, as this Court previously stated in finding Plaintiffs' request for injunctive and declaratory relief moot and denying class certification, "if Plaintiffs were to win and be awarded nominal damages, the doctrine of collateral estoppel would prevent the Defendants from obtaining inconsistent judgments in future cases." (Order dated Sept. 27, 2004.) Thus, Plaintiffs' lawsuit achieved other tangible results that in combination with the enforceable judgment for nominal damages support an award of attorney's fees. See Wilcox, 42 F.3d at 555; Benton, 2005 WL 2036224 at *4.
Cf, e.g., Romberg, 48 F.3d at 455 ("[D]espite their vague allusions to the preservation of the `sanctity of the home,' the Rombergs have failed to identify any nonmonetary successes resulting from their litigation efforts against the Sheriff's Department or individual deputies. . . . Such "tangible results" are utterly lacking in the record of this case.").
Turning to the factors identified by Justice O'Connor inFarrar, the Court finds that the legal issue in which Plaintiffs prevailed was significant and accomplished a public goal. This case dealt with nonunion members' First Amendment rights and their ability to enroll in dental and vision health care plans for themselves and their families. There was no direct controlling authority on point dealing with First Amendment rights in regard to a union's cafeteria-style benefits plan. The precedent in this case, although not binding in other cases, may serve the public interest in future cases as well. As Defendants themselves pointed out to the Court in opposing Plaintiffs' motion for summary judgment, "MEA is not the only employee organization with a provision allowing for the purchase of a dental plan or vision plan only if you are a member of an employee organization. While Plaintiffs have focused on MEA, AFSCME Local 127 has an exclusive dental plan with a membership requirement. There is no alternative City plan. Firefighters Local 145 has a dental plan open to members only in addition to the City plans." (Def. MEA's Opp'n to Pls.' Mot. for Summ. J. at 10.) This decision may have an effect on cases involving other non-MEA union members' First Amendment rights.
It is also important to note that Plaintiffs never sought any monetary damages in this action. Thus, cases like Farrar and its progeny are distinguishable insofar as the courts there reversed the attorney's fees awards where the original civil rights suit sought substantial monetary damages and, thus, "the awarding of nominal damages . . . highlight[ed] the plaintiff's failure to prove actual, compensable injury." Farrar, 506 U.S. at 114. In Farrar, for example, the plaintiffs filed a lawsuit for $17 million against six defendants. After ten years of litigation, they obtained a nominal damages judgment of one dollar against only one of the six defendants. Noting this, the Court inFarrar concluded that the litigation had "accomplished little beyond giving petitioners `the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated' in some unspecified way" and therefore denied attorney's fees. 506 U.S. at 114 (quoting Hewitt v. Helms, 482 U.S. 755, 762 (1987)) (brackets in original).
See also Romberg, 48 F.3d at 455 ("[T]he Rombergs are a perfect example of plaintiffs who `should receive no attorney's fees at all.'") (quoting Farrar, 506 U.S. at 115). InRomberg, the plaintiffs "initially sought $2 million in punitive and compensatory damages against each of the eight sheriff's deputies," but only received $1 each in nominal damages. Id.
Here, Plaintiffs never sought any monetary damages. From the outset, Plaintiffs sought only declaratory and injunctive relief and nominal damages. Plaintiffs' claims for declaratory and injunctive relief were rendered moot by Defendants' full circle change in their benefits policy effective for the 2004 open enrollment period. This policy change gave Plaintiffs exactly what they had originally sought in moving for that relief. Defendants' change in policy also served as the basis for the Court's denial of class certification because it created a conflict between the Plaintiffs, who were still seeking nominal damages as they requested in their complaint, and other non-union employees ("freeloaders") who could now enroll in the optional benefits plan without joining the union, an agency shop, or paying any additional fee. Plaintiffs' case proceeded on the merits and, on summary judgment, Plaintiffs prevailed in demonstrating a violation of their First Amendment rights in the prior 2002 and 2003 open enrollment periods. The Court therefore awarded Plaintiffs nominal damages.
In this light, the Court finds Plaintiffs' litigation in this case was highly successful. See Farrar, 506 U.S. at 114 (explaining that "the most critical factor in determining the reasonableness of a fee award is the degree of success obtained") (internal quotation marks and citation omitted). Indeed, Plaintiffs in this case received everything they sought through their litigation. Defendants amended the policy for a second time, thereby allowing Plaintiffs and all other nonunion members to freely enroll in the optional benefits plans. Plaintiffs also established that their First Amendment rights had been violated and they were therefore entitled to an award of nominal damages. The Court finds that Plaintiffs are entitled to reasonable attorney's fees.
Contra Farrar, 506 U.S. at 121 (O'Connor, J., concurring) ("If recovering one dollar from the least culpable defendant and nothing from the rest legitimately can be labeled a victory-and I doubt that it can-surely it is a hollow one. Joseph Farrar may have won a point, but the game, set, and match all went to the defendants."). As Justice O'Connor noted, Farrar only got "one seventeen millionth" of what he wanted because he received only one dollar in nominal damages when he had originally sought to recover $17 million in monetary damages.Id. The instant case poses the exact opposite situation. While Plaintiffs may have given up a point here and there, the game, set, and match no doubt went to them, not Defendants.
B. CALCULATION OF REASONABLE ATTORNEY'S FEES AWARD
"Fee awards pursuant to § 1988 must be reasonable, both as to the number of hours spent in advancing the successful claim(s) and the billing rate per hour." Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994). Calculating the lodestar figure is the starting point for determining a reasonable fee. Id. (citingGates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)). See also Dang v. Cross, ___ F.3d ___, 2005 WL 2000974, *9 (9th Cir. Aug. 22, 2005) ("To determine reasonable attorney's fees under § 1988, the district court should first determine the lodestar amount by calculating the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."); Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) ("`The lodestar determination has emerged as the predominate element of the analysis in determining a reasonable attorney's fee award.") (quoting Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987)). The lodestar figure presumptively provides the accurate measure of reasonable fees and only in rare instances should the lodestar figure be adjusted on the basis of other considerations. Id. (citations omitted).See also Dang, 2005 WL 2000974 at *9 ("The district court may then, in its discretion, adjust the lodestar amount after considering other factors that bear on the reasonableness of the fee.") (internal quotation marks and citations omitted). The Court must assess whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation.See Morales, 96 F.3d at 363-64.
The 12 factors enunciated in Kerr v. Screen Guild Extras, Inc. are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976).
1. REASONABLE HOURS EXPENDED
Plaintiffs claim that a total of 769.8 hours were reasonably expended in this case. Specifically, Plaintiffs submit that counsel Mark Buetler expended a total of 387.8 hours, John Martin expended a total of 292.2 hours, and Mark Bennett expended a total of 89.8 hours. (See Pls.' Mot. For Attorney's Fees and Costs at 15; Pls.' Reply to City of San Diego's Opp'n at 1.)
In determining reasonable hours, the moving party bears the burden of submitting detailed time records justifying the hours claimed to have been expended. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). "[T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988." Hensley, 461 U.S. at 440. See also Dang, 2005 WL 2000974 at *10 (holding that the district court erred in reducing the number of hours by ten percent without determining whether the unsuccessful claims were related to the successful claims). To determine the award of attorney's fees in a case of partial success, the Court must first consider whether the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded. See Dang, 2005 WL 2000974 at *10; Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002). If the unsuccessful and successful claims are related, then the court must further evaluate the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.See Dang, 2005 WL 2000974 at *10; Schwarz v. Sec'y of Health Human Serv., 73 F.3d 895, 902-03 (9th Cir. 1995).
Here, Plaintiffs sought declaratory and injunctive relief as well as nominal damages. Plaintiffs' claims are all related as they arise out of a common core of facts, are based on a related legal theory, and arose out of the same course of conduct. See Dang, 2005 WL 2000974 at *10 ("[C]laims are unrelated if the successful and unsuccessful claims are distinctly different both legally and factually; claims are related, however, if they involve a common core of facts or are based on related legal theories. At bottom, the focus is on whether the unsuccessful and successful claims arose out of the same course of conduct.") (internal quotation marks and citations omitted) (emphasis in original). As the Court previously found, Plaintiffs here were highly successful and achieved everything they originally sought through this litigation. Plaintiffs' claims for declaratory and injunctive relief were only rendered moot by Defendants' policy change that allowed Plaintiffs and all nonunion members to enroll in the optional benefits without paying any fee — exactly what Plaintiffs wanted in the first place. Plaintiffs "achiev[ed] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Dang, 2005 WL 2000974 at *10. Accordingly, the Court will not reduce the expended hours because Plaintiffs did not technically succeed on all their claims. See id. ("[A] plaintiff does not need to receive all the relief requested in order to show excellent results warranting the fully compensatory fee.") (citing Hensley, 461 U.S. at 435 n. 11; Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001)).
However, the Court may reduce the hours submitted where the documentation is inadequate, the case was overstaffed and the hours are duplicative, or the hours expended are deemed excessive or otherwise unnecessary. Chalmers, 796 F.2d at 1210 (citingHensley, 461 U.S. at 433-34). Here, the Court finds the travel hours billed by Plaintiffs' out-of-state counsel, Beutler and Martin, excessive and unnecessary when Plaintiffs could have, and actually did secure (and bill for) representation by local counsel. While Plaintiffs' are obviously entitled to counsel of their choosing, they can not reasonably expect the defendants to bear the added costs incurred by having counsel from outside California handle the case when there were qualified and available counsel closer to the court that could have represented plaintiffs. Indeed, Plaintiffs' local counsel in this case, Bennett, billed 89.8 hours. Moreover, Plaintiffs themselves characterize Bennett's role as local counsel as "necessary to competently represent Plaintiffs" and "not ministerial." (Pls.' Reply to MEA's Opp'n at 9.) Accordingly, the time billed by the out-of-state attorneys in this case to travel to and from San Diego shall be subtracted from the total reasonable hours expended. Reviewing the billing logs, it appears that Beutler billed 125.3 travel hours and Martin billed 47.2 travel hours. (See Beutler Decl., Ex. A; Martin Decl. Ex. A.). Subtracting those travel hours, Plaintiffs are entitled to a total of 597.3 reasonable hours expended in this case.
The Court has considered the defendants' other arguments for reductions in the number of hours expended. The Court does not sustain these arguments and finds that the other suggested reductions lack merit.
2. REASONABLE HOURLY RATE
In determining the reasonable hourly rate, the Court must consider the experience, skill, and reputation of the attorney(s) requesting fees. Chalmers, 796 F.2d at 1210. Specifically, "the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation." Id. at 1210-11 (citingBlum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). See also Dang, 2005 WL 2000974 at *11. Moreover, "[a] district court should calculate this reasonable hourly rate according to the prevailing market rates in the relevant community, which typically is the community in which the district court sits."Schwarz, 73 F.3d at 906 (internal quotation marks and citations omitted).
Plaintiffs request an hourly rate of $300 for attorneys Mark Beutler and Mark Bennett and an hourly rate of $150 for attorney John Martin. The Court finds these hourly rates reasonable in this case. Cf. Dang, 2005 WL 2000974 at *11 ("In light of the evidentiary record and the factors that bear on the reasonableness of a fee award, the district court concluded that $400 per hour, rather than the requested fee of $550 per hour, was reasonable. This determination was not an abuse of discretion.") (emphasis added). Plaintiffs have submitted detailed declarations demonstrating all three attorneys' experience and skill in First Amendment union cases. Plaintiffs have also submitted detailed declarations from comparable local San Diego attorneys which show that the $300 and $150 hourly rates are reasonable and consistent with the prevailing market rates for similar legal work in San Diego. See Blum, 465 U.S. at 896 n. 11. ("To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation."). After reviewing the declarations of Plaintiffs' counsel and the declarations of the local San Diego attorneys, the Court finds that the requested hourly rates are reasonable and may even represent the lower end of the prevailing market rates. Additionally, as the Court has explained above, this case involved complex and novel legal issues. This further supports the requested hourly rates. See Dang, 2005 WL 2000974 at *11 (approving the district court's consideration of the "novelty/difficulty of the issues" in awarding the plaintiffs an hourly rate of $400) (citing Morales, 96 F.3d at 364). As such, the Court will use an hourly rate of $300 for attorneys Beutler and Bennett and $150 for attorney Martin in calculating the loadstar figure.
(See Beutler's Decl at 1-2; Martin's Decl. at 1-2; Bennett's Decl. at 1-3.)
(See Moore's Decl. at 1-2; Golden's Decl. at 1-4.)
3. THE LOADSTAR FIGURE
Calculating the loadstar figure, the Court multiplies Beutler and Bennett's combined reasonable hours (352.3) by a reasonable hourly rate of $300, which results in a total of $105,690. Next, the Court multiplies Martin's total expended hours (245) by a reasonable hourly rate of $150, which results in a total of $36,750. Adding the two products together, the Court arrives at a sum of $142,440 for the total award of attorney's fees in this case. The Court finds this total fee award reasonable and declines to adjust the award based on the Kerr factors not already subsumed in the initial lodestar calculation. See Morales, 96 F.3d at 363 (the lodestar figure presumptively provides the accurate measure of reasonable fees and only in rare instances should the lodestar figure be adjusted on the basis of other considerations). Accordingly, the Court hereby awards Plaintiffs $142,440 in attorney's fees.
4. REASONABLE EXPENSES
Under § 1988, the prevailing party may recover as part of the award of attorney's fees those out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client. Dang, 2005 WL 2000974 at *11 (internal quotation marks and citations omitted). "Such out-of-pocket expenses are recoverable only when reasonable." Id. (citations omitted). "Thus reasonable expenses, though greater than taxable costs, may be proper" in awarding attorney's fees under § 1988. Harris, 24 F.3d at 19.
See also Harris, 24 F.3d at 19; Chalmers, 796 F.2d at 1216, n. 7 ("Even though not normally taxable as costs, out-of-pocket expenses incurred by an attorney which would normally be charged to a fee paying client are recoverable as attorney's fees under section 1988.") (citing Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 30 (D.C. Cir. 1984));Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 639-40 (6th Cir. 1979).
Plaintiffs originally requested a total of $7,039.34 for $7,008.59 in travel related expenses covering seven travel occasions and $30.75 in miscellaneous expenses for a Freedom of Information Act request for the City's vision/dental insurance policy. (Beutler's Decl. at 4.) However, Plaintiffs, in their reply, conceded that $28 in telephone calls on a hotel bill were improperly included in their original calculation of costs. (Pls.' Reply to MEA's Opp'n at 10 n. 18.) Plaintiffs reduced their expenses by that amount. (Id.) Plaintiffs' reply brief also requested an additional $160 in expenses for their counsel's pro hac vice admission fee that was rejected as taxable costs by the Clerk of Court. (Id.) Thus, Plaintiffs now request a total of $7,171.34 in expenses.
Similar to the hours actually billed for traveling, the Court finds Plaintiffs' requested expenses for traveling totaling $6,980.59 unreasonable. See Dang, 2005 WL 2000974 at *11. As indicated above, Plaintiffs retained Bennett as local counsel in this case who billed 89.8 hours. Plaintiffs characterize Bennett's role as local counsel as "necessary to competently represent Plaintiffs" and "not ministerial." (Pls.' Reply to MEA's Opp'n at 9.) Travel expense for the out-of-state attorneys in this case is unreasonable when Plaintiffs' local counsel could have made the personal appearances in San Diego without incurring the *11. As indicated above, Plaintiffs retained Bennett as local counsel in this case who billed 89.8 hours. Plaintiffs characterize Bennett's role as local counsel as "necessary to competently represent Plaintiffs" and "not ministerial." (Pls.' Reply to MEA's Opp'n at 9.) Travel expense for the out-of-state attorneys in this case is unreasonable when Plaintiffs' local counsel could have made the personal appearances in San Diego without incurring the extensive traveling expenses. Moreover, Plaintiffs' out-of-state counsel could have appeared telephonically. In any case, the Court has not reduced their hours for the time spent in the actual hearings in San Diego, only the traveling time.
(See, e.g., Order dated Sept. 27, 2005 at 15; Doc. No. 116.)
The Court finds the other expenses reasonable and of the type that are normally charged to a fee-paying client. Harris, 24 F.3d at 19 (upholding award of expenses for "service of summons and complaint, service of trial subpoenas, fee for defense expert at deposition, postage, investigator, copying costs, hotel bills, meals, messenger service and employment record reproduction" as well as the "expenses related to discovery that Harris incurred in deposing Alvarez's expert"); Dang, 2005 WL 2000974 at *11 (upholding expenses for obtaining and recording abstract of judgment even though the plaintiff failed to request this expense as part of his Bill of Cost). However, for the same reason that travel time and expense is not permitted, the Court finds that it is not reasonable to tax defendants with the cost of pro hac vice application fees. As such, subtracting the unreasonable expenses, Plaintiffs are entitled to a total of $30.75 in recoverable expenses.
III. CONCLUSION AND ORDER
The Court hereby awards Plaintiffs $142,440 in attorney's fees and $30.75 in expenses. The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.