Summary
holding that blocked-billing entries supported the reasonableness of hours expended where attorneys had logged their hours daily to the tenth of an hour and described the nature of their activities
Summary of this case from Garcia v. Resurgent Capital Servs., L.P.Opinion
No. C-98-1470 MHP
January 29, 2002
MEMORANDUM AND ORDER
Plaintiff Kenneth Oberfelder moves the court for attorneys' fees pursuant to 42 U.S.C. § 1988 after a successful jury trial against defendant. Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.
BACKGROUND
Plaintiff Kenneth Oberfelder filed this action pursuant to 42 U.S.C. § 1983 against the Sonoma County Sheriff ("Sheriff"), Deputy Sheriff ("Deputy") and Sheriff's Department ("Department"). Plaintiff alleged that defendants used excessive force when Deputy Christian Bertoli shot him in the back during plaintiff's arrest. On or about July 15, 1998, plaintiff, who was incarcerated, wrote a letter to this court advising that he had been unable to retain counsel to represent him and that he was unable to properly represent himself. See Levy Dec., Exh. A. This court arranged through the District's pro bono counsel program for an attorney to be appointed. The program requested that the law firm of Crosby, Heafy, Roach and May represent Oberfelder in this action and that firm was appointed pursuant to 28 U.S.C. § 1915 (e). At trial, a jury awarded damages to plaintiff against the Deputy Sheriff in the amount of $100,000. Now before this court is plaintiff's motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
LEGAL STANDARD
A district court has discretion to award a reasonable attorneys' fees to a prevailing party in a civil rights action under the Civil Rights Attorneys' Fees Awards Act of 1976. 42 U.S.C. § 1988(b). In the absence of special circumstances, a prevailing party should recover reasonable attorneys' fees. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (citing Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). The purpose of section 1988 is to ensure that private parties are able to secure effective counsel to protect rights guaranteed by federal law. See Riverside v. Rivera, 477 U.S. 561, 576 (1986).
Generally, if a court determines that a prevailing party should be awarded attorneys' fees under section 1988, it must next determine what fees are reasonable by calculating the "lodestar." Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987). The lodestar is found "by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate." E.g., Chalmers, 796 F.2d at 1210; Schwartz v. Health Human Serv., 73 F.3d 895, 901 (9th Cir. 1995); Keith v. Volpe, 833 F.2d 850, 859 (9th Cir. 1987). There is a strong presumption that the lodestar figure represents a reasonable fee. Jordan, 815 F.2d at 1262.
In calculating the lodestar, the court must determine both a reasonable number of hours and a reasonable hourly rate for each attorney.Chalmers, 796 F.2d at 1210. When reviewing the number of hours, the applicant must justify her claim of hours worked by submitting detailed time records. Id. at 1209. The court may make down adjustments if it believes the documentation to be inadequate, if the hours were duplicative, or if the hours were either excessive or unnecessary. Id. at 1210.
In determining a reasonable hourly rate, the court must consider several factors including the experience, skill and reputation of the applicant and the prevailing rate in the community for similar work performed by attorneys of comparable skill, experience and reputation.Id. at 1210-11. The relevant community for purposes of determining the prevailing market rates is generally the forum in which the district court sits. See Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).
In the civil rights context, the reasonableness of a fee application is determined by a streamlined inquiry. See Farrar v. Hobby, 506 U.S. 103, 114 (1992). In determining a reasonable fee award to a civil rights plaintiff, the court must give greatest weight to the relationship between the amount of damages sought by plaintiff and the amount awarded to plaintiff. See id.
Ninth Circuit case law in the area of attorneys' fees largely illustrates the cumbersome application of a twelve-factor framework used to determine a reasonable fee. See Kerr v. Screen Extras Guild Inc., 526 F.2d 67, 70 (9th Cir. 1975). The central inquiry in determining reasonable attorney's fees in civil rights claims is now an examination of plaintiffs prospects of success as compared to plaintiffs actual recovery. Farrar v. Hobby, 506 U.S. 103, 114 (1992).
DISCUSSION
Plaintiff requests $638,109.50 in attorneys' fees incurred during the three-year duration of this case as well as costs and expenses totaling $62,305.78. Plaintiff requests that the court apply a 1.5 multipher to the lodestar amount for a total fee award of $957,164.25.
Plaintiffs counsel requests total attorneys' fees in the amount of $638,109.50. Pl's Mem. at 11:10. However, the billing invoice lists total fees of $662,287.00. Levy Dec., Exh. B at 133. The court will assume the fee request is for $638,109.50, as that is the amount referred to by defendants in opposing the fee request. Def.'s Mem. at 1.
The multiplier applies only to the requested fees and not to costs.
The court has presided over this case from its inception three years ago. During that time the court has had the opportunity to evaluate first-hand the work of plaintiffs counsel during courtroom hearings and through briefing and memoranda. Throughout the course of this litigation, plaintiffs counsel have been well prepared, thorough and as dedicated to their client as one would expect of a lawyer to their long-term paying clients. Additionally, counsel's written and oral advocacy has been of high quality. With these observations in mind, the court will first evaluate plaintiffs success and then address the factors relevant to determining the fee award in this case.
I. Plaintiff's Success
The Civil Rights Attorneys' Fees Awards Act of 1976 provides that only "prevailing parties" may be awarded attorneys' fees. 42 U.S.C. § 1988(b). To qualify as a prevailing party, a plaintiff must obtain some relief on the merits of his claim that materially alters the legal relationship of the parties. Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). On October 15, 2000, this court entered judgment against defendant Christian Bertoli and in favor of plaintiff Kenneth Oberfelder, in accordance with the jury verdict. Judgment was entered in the amount of $100,000. Thus plaintiff is a prevailing party in a section 1983 action and the court may award, in its discretion, reasonable attorneys' fees. 42 U.S.C. § 1988.
II. Fees Requested
A. Documentation of Reasonable Hours
In support of the fee request, counsel submitted a 152-page billing invoice that chronologically sets forth the time spent by each individual and the nature of the work performed on a daily basis. Levy Dec., Exh. B. The party seeking an award of fees must make an adequate showing of the hours worked and rates claimed. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Time records should be comparable to those that a private attorney would present a client to substantiate a fee. Evers v. County of Custer, 745 F.2d 1196, 1205 (9th Cir. 1984).
Defendant first argues that the fee request should be reduced because the billing statement attached to the fee request does not constitute a contemporaneous record. The failure to present a contemporaneous record is not a basis for denying an award in its entirety, but it may be reason to reduce the fee award. See Fischer v. S.J.B.-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000). At the same time, there is no requirement that a district court must examine contemporaneous time records in every case in which attorneys' fees are sought. Id. As a regular billing practice, plaintiffs counsel requires timekeepers to maintain daily records of hours and electronically input hours every two weeks. See Levy Supp. Dec. ¶ 6. Monthly billing invoices are then generated from the stored entries. Id. The court finds this procedure is sufficient to constitute contemporaneous records. Furthermore, the showing of hours as provided on counsel's billing invoice is adequately detailed and reflective of the number of hours worked to comprise an adequate basis for determining the lodestar.
Second, defendant complains that the billing statement contains multiple time entries listed as one block of time, or, "blocked billing." The charge of blocked billing does not undermine the compensability of time reasonably expended where the billing statement meets the basic requirement of listing the hours and identifying the general subject matter of time expenditures. See Fischer, 214 F.3d at 1121. Timekeepers here logged their hours separately, to the tenth of an hour, on a daily basis and described the nature of their activities to support the hours worked and the rates claimed. See generally Levy Dec., Exh. B. Thus the court finds that the "blocked billing" charge is without merit and that plaintiffs documentation is adequate.
B. Fee Request
Plaintiff seeks fees in the following amounts:Summer Associates Hours x Rate Totals Research Librarian Medical Analyst Associate Attorneys Director Attorneys Legal Assistant Fees Other Professional Services
An Nguyen 35.9 hrs $140/hr $ 5,026.00 Garrett Dillon 38.9 hrs $140/hr $ 5,446.00 Jennifer Rotman 44.8 hrs $140/hr $ 6,272.00 Dan Cunningham .5 hrs @ $160/hr $ 80.00 Mary Cheng 0.8 hrs @ $170/hr $ 136.00 Brian W. Franklin 120 hrs $190/hr $ 22,800.00 Brad DeJean 156.1 hrs $250/hr $ 39,025.00 Michael J. George 7.4 hrs $225/hr $ 1,665.00 Todd C. Toral 207 hrs $230/hr $ 47,610.00 Kama B. Pierce 35.5 hrs $200/hr $ 7,100.00 Cassandra C. Pulskamp 103.4 hrs $200/hr $ 20,880.00 Jared B. Gardner 474.6 hrs $200/hr $ 94,920.00 Jo S. Levy 1025.1 hrs $295/hr $302,404.50 Howard A. Janssen 4.1 hrs $400/hr $ 1,640.00 Ricky Vu 29.5 hrs $110/hr $ 3,245.00 Sharon Pickett 836.2 hrs $110/hr $ 62,715.50 Eric Johnson 171 hrs $110/hr $ 18,810.00 John Cervantez 2 hrs @ $80/hr $ 160.00 $638,109.50 In determining the reasonableness of the fee request, the court will consider the ability of counsel, the amount involved, customary charges for similar services, counsels' reputation and most importantly, the results counsel obtained in this matter. See Farrar v. Hobby, 506 U.S. 103, 114 (1992).1. Amount Involved and Results Obtained
The court first notes that this was not an easy case. At the time of the incident involved, plaintiffs was a fugitive with a criminal record. His counsel had to convince ajury that despite this and the fact that there were legitimate grounds for his apprehension, plaintiff had enforceable civil rights including the right to be free of the use of excessive force. Counsel did not have a sympathetic plaintiff. Nonetheless, plaintiff's counsel ably and successfully shouldered the burden. Counsels' strong trial presentation resulted in a jury award of $100,000 in favor of Oberfelder. The inability of the parties to reach a settlement might have discouraged less tenacious counsel from bringing this case to trial. Further evidence of the vigorous efforts of his advocates is that plaintiff was awarded $70,000.00 in excess of his actual medical costs. The results demonstrate that counsel performed high quality legal representation in the face of many adverse factors and the very vigorous advocacy of opposing counsel.
Defendants contend that plaintiffs billing for $638,109.50 is excessive in light of the $100,000 awarded by the jury. There is no requirement of proportionality of fees sought to verdict though the court in its discretion may consider plaintiffs success in determining the reasonableness of fees. See Farrar, 506 U.S. 103, 114 (1992); see also Riverside v. Rivera, 477 U.S. 561, 576 (1986) (affirming a $245,000 fee award in a case where plaintiff recovered $33,000); Morales v. City of San Rafael, 96 F.3d 359, 364 (1996). A rule of proportionality that would limit fee awards under section 1988 to a proportion of the damages recovered in the underlying suit is inconsistent with the flexible approach to lodestar calculations that takes into account all considerations relevant to the reasonableness of the time spent. See Cunningham v. County of Los Angeles, 879 F.2d 481, 486 (9th Cir. 1988). Given the dearth of similar successfully-litigated cases, plaintiff received excellent results from counsel's work.
2. Customary Fees and Counsels' Experience and Reputation
In granting fee awards, the Ninth Circuit uses current billing rates to compensate for the delay in receiving payment. See Davis v. City and County of San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992); Bouman v. Block, 940 F.2d 1222, 1235 (9th Cir. 1991). In determining a fee award, courts have relied on affidavits declaring that the fees sought by counsel were well within the bounds of "prevailing market rates" that form the basis of the proper fee award. See, e.g., Blum v. Stenson, 465 U.S. at 898 (1984); Keith v. Volpe, 643 F. Supp. 37 (C.D. Cal. 1980). Fee applicants sustain their burden of proof by submitting sufficient evidence that requested rates are comparable to the current market rates. See United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403 (9th Cir. 1990). Alternatively, in evaluating the requested hourly rate, a district court may rely on its own knowledge of comparable rates charged by other lawyers in the district. Miele v. New York State Teamsters Conference Pension Ret. Fund, 831 F.2d 407 (2d Cir. 1987).
a. Partner Rates
Plaintiff requests hourly fees of $400.00 and $295.00 for Howard Janssen and Jo Levy respectively. Given his thirty years of legal experience, Mr. Janssen's $400 hourly rate is consistent with attorneys of his experience and reasonable for the quality of representation he provided. See Pearl Dec. ¶ 9(a) (attorneys offering comparable services, with thirty or more years of experience charge an hourly rate of anywhere between $365.00-560.00); see also Blum v. Stenson, 465 U.S. at 899 (fee award at premium rates is reasonable where the quality of service provided by counsel matched the value requested). Ms. Levy's requested rate is also reasonable. Although section 1983 is not her area of specialty, Ms. Levy is a litigator with thirteen years of experience including civil rights litigation. That the requested rates here are comparable to rates of attorneys in large San Francisco law firms is consistent with the court's own knowledge and twenty plus years of experience. See Rosenfeld v. Southern Pac. Co., 519 F.2d 527, 530 (9th Cir. 1975). The court accepts the requested billing rates for Mr. Janssen and Ms. Levy as within the prevailing market rate.
b. Associate Rates
Plaintiff requests $190.00-250.00 hourly rates for junior associates. With the fee application, counsel submits the Declaration of Richard Pearl to attest that their rates are within the ambit of today's market for high-quality private representation. Pearl Dec. ¶ 9(a). Given that the rates are reasonable figures that comport with the current charges for comparable services in San Francisco, the court grants the requested rates.
Defendants allege that plaintiffs counsel are inexperienced in civil rights issues and should charge a lower hourly rate to reflect so. Defendants seek to reduce the hourly rates for associates to the range of $145.00-160.00. In support, defendants submit a graph prepared in 1988 by the National Survey Center as evidence of lower billing rates charged by similar firms in San Francisco. Schratz Dec., Exh. J. The court discounts the weight of this material because it is over twelve years old and does not reflect prevailing market rates particularly as affected by the significant salary increases experienced in the `90s. Furthermore, the survey does not indicate that the salary information represents services comparable to those provided by counsel for plaintiff. Id.
c. Rates for Non-Bar Members
Plaintiff requests an hourly rate for first-year associates Kama Pierce, Cassandra Pulskamp and Jared Gardner of $200.00. Defendants claim that these rates are inflated because the associates billed at current rates without regard to their bar status at the time the services were rendered. In fact, during the pre-admission period, Pierce, Pulskamp and Gardner billed 77.4 hours of work at the associates' hourly rate of $200.00. See Senneff Dec. ¶ 15(e); Schratz Dec. ¶ 15; Schratz Dec., Exh. C; Levy Dec., Exh. D.
Pierce was admitted to the Bar on Nov. 22, 1999, Pulskamp on Dec. 15, 1999 and Gardner on Dec. 6, 1999.
It is common practice for law firms to employ law school graduates as associates before they have received bar membership. Such associates cannot appear in court or argue a motion without holding a bar number. Billing rates should reflect not only experience, but bar membership. In setting fees, courts regularly award higher rates to bar members and lesser rates to non-bar members. See Missouri v. Jenkins, 491 U.S. 274, 285 (1989); Ilick v. Miller, 68 F. Supp.2d 1169, 1179 (9th Cir. 1999). Accordingly, hourly rates for those awaiting bar membership should be set lower than attorneys, but higher than law students. The fees for the 77.4 hours of pre-admission work will be set at $170.00 per hour and the 535.1 hours of post-admission work will be billed at the requested hourly rate of $200.00. Thus the fee award is reduced by $2,582.00.
d. Rates for Paralegal Work
Plaintiff requests hourly rates for legal assistants ranging from $75.00-$110.00. Plaintiff bills an hourly rate of $75.00 for legal assistant Pickett, who did the bulk of the assistant work on this case. Levy Dec., Exh. B. Fees for non-bar members such as paralegals, law students and summer associates can be included in a fee request as long as they are billed at a lower rate and reasonably necessary to the litigation of a prevailing claim. See Louisiana v. Mississippi, 466 U.S. 921 (1984) (work performed by law students employed as summer law clerks is compensable on a per hour basis under Section 1998); Keith v. Volpe, 501 F. Supp. 403, 413-14 (C.D. Cal. 1980) (reasonable rates granted for clerks and paralegals who performed necessary services);Davis v. City County of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) (fee request granted that included billing for time paralegal spent traveling and filing pleadings).
Counsel's delegation of work to paralegals, demonstrates a form of billing judgment. Legal assistants prepared materials including binders and exhibits for use in trial and communicated with court personnel regarding organization of evidence. See Levy Supp. Dec. ¶¶ 17, 22. Two of the legal assistants have over a decade of legal experience each. See Johnson Dec. ¶ 2; Pickett Dec. ¶ 2. The expertise possessed by the paralegal staff justifies the rates charged. The court finds the requested rates reasonable.
e. Rates for Summer Associates
Plaintiff requests fees for three summer associates at an hourly rate of $140.00. Fee awards may include compensation for services performed by non-bar employees, including law students working part-time. See Missouri v. Jenkins, 491 U.S. 274, 286 (1989). Fees should be comparable to local market rates for those categories of work. Id. at 287.
Defendants complain that an hourly rate of $140.00 for summer associates is excessive. Defendants suggest a $90 hourly rate, or alternatively recommend disallowance by a third. The 119.6 hours billed by summer associates should be charged according to the current rates for summer associates in San Francisco. Fee requests need not be within a given range to be reasonable. See Blum v. Stenson, 465 U.S. 886, 892-6 (1984) (fee requests granted for rates at the upper end of the market where the fee fully represented the quality of litigation). The requested rate appears towards the high end, but not unreasonably so given the amount of preparation required and the obviously effective and well-organized presentation. Thus the requested hourly rate of $140.00 for summer associates is granted for a total of $16,744.
Having found all of the requested rates to be reasonable, the court now considers the number of hours reasonably expended by plaintiffs counsel.
III. Number of Hours Reasonably Expended
Plaintiff requests compensation for 215.8 hours of attorney time, 1036.7 hours of legal assistant time, and 119.3 hours of summer associate time. The hours request should reflect all time reasonably expended in the litigation. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974) ("The trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities"); United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir. 1990) (remand of fee award compensating only 1,500 hours where request was for 3,656 and supported by documentation). The court will not second-guess the professional judgment of counsel in allocating work among its staff. See Ilick v. Miller, 68 F. Supp.2d 1169, 1179 (9th Cir. 1999).
A. Duplicative Work
In opposing the number of hours requested, defendants cite instances of multiple billing that occurred when more than one attorney billed for the same appearance, deposition or conference on the same day. It is true that courts have disallowed multiple billing where an attorney's presence is redundant. See In re Fine Paper Antitrust Litigation, 751 F.2d 562, 597 (1984). However, the attendance of more than two attorneys is not per se duplicative. Duplicative hours are those where the presence of more than one attorney does not provide benefit to the client. See id. at 597 (fee award should be reduced where request was for 818 hours of lawyer time and 815 hours of paralegal time attending industrial analysis committee meetings).
The deposition testimony of key witnesses are the building blocks of trial strategy. Counsel attending a deposition can better assess the quality of a witness more effectively than reading from a transcript. In fact, two attorneys for defendant also appeared at depositions as well as hearings before this court. The court finds that the presence of two attorneys for plaintiff at four out of twenty four depositions is not unreasonable nor atypical. Defendants' objection to the appearance of two attorneys for plaintiff at a case management conference is also rejected. The court uses these conferences for more than the mere formality of setting dates; issues are discussed, the case shaped for pretrial and trial and concessions and agreements are made. Attorneys empowered to make decisions on behalf of their client or those with substantive contributions are needed at case management conferences. Additionally, in objecting to the presence of two attorneys for plaintiff at a settlement conference, defendant overlooks the fact that a team approach to solving the issues is useful during settlement conferences which test counsel's ingenuity and negotiating skills.
Defendants also claim that three attorneys billed for duplicative efforts at a two-day site inspection during the investigation of the case. In order to successfully litigate this case, counsel needed to make a careful reexamination of every fact contained in the official report made after the incident giving rise to this action. The investigation completed shortly after the incident concluded that there was no excessive force, whereas plaintiffs complaint stated exactly the opposite. Plaintiffs counsel was required to conduct an independent investigation to uncover evidence that supported their claims and the site inspection served this end. The court finds nothing improper or superfluous regarding the multiple attorney appearances pointed out by defendant.
B. Excessive Hours
1. Vagueness
The parties agree that 49.1 billed by legal assistant Pickett for work described as "Review and analysis of newly received case materials and update file the same" is unreasonably vague. Schratz Dec. ¶ 15(c). Accordingly, the total fee award is reduced by $3,682.50.
Defendants charge that vague entries are found "throughout" the billing statement. Since defendants do not present an item-by-item challenge, this court will consider only their specific objections. Defendants challenge the following billing entries as unreasonably vague:
(a) Attorney CCP billed 1.2 hours and $240 fees on 11/3/99: "Review file for medical records already sent."
(b) Attorney CCP billed 2.1 hours and $420 fees on 11/4/99: "Review file for information requested by expert."
(c) Summer Associate AN billed .4 hour and $56 fees on 6/1/00: "Read over background documents concerning matter to be researched."
(d) Attorney BD billed .3 hour on 3/26/99 and .2 hour on 3/26/99, for a total of $125 in fees, with identical entries: "Analyze pending issues in case."
Schratz Dec. ¶ 15(c). These entries are vague because timekeepers failed to indicate the reason for the review, the persons involved and without waiving privilege, some general description of the subject. Thus the total fee award is reduced by $840.00.
2. Clerical Work as Fees or Costs
Plaintiff requests 1036.7 hours in legal assistant fees for a total of $16,744. Defendant alleges that several billing entries indicate entirely non-billable, clerical activity both by paralegals and attorneys. Some courts hold that clerical work is part of an attorney's overhead subsumed within the hourly rate and should not be requested separately. See Volpe v. City of Hawthorne, 644 F. Supp. 1312, 1316 (CD. Cal. 1986) (reducing the total claimed time in order that the fee request reflect "billing judgment"). The court recognizes the general rule that hours not properly billed to one's client also are not properly billed to one's adversary.See Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983). Work performed by non-bar members may be considered billable where the work product of an attorney relies on those services provided by clerks and paralegals. See Missouri v. Jenkins, 491 U.S. 274, 286 (1989). Reasonable attorneys' fees do not compensate only work performed personally by members of the bar.See id. at 286 (holding that clerk and paralegal services should be billed at market rates rather than at a rate corresponding to their salaries, benefits and overhead).
Defendant does not point to specific entries that are entirely clerical and non-billable. Rather than objecting to particular entries on plaintiffs billing statement, defendant using a computer generated report, analyzes plaintiffs billing statement and objects to whole categories of work such as "paralegal document handling," "prepare witness files," and "investigation/interview." Schratz Dec. at 16:11-23. These categories do not address the billing activity of the individual timekeepers, but aggregate like entries. Defendant alleges $13,096.00 of billing refers to "organizational tasks, clerical document handling, computer related activities, clerical work, indexing activity, Bates stamp documents, messenger related activity, cite check cases, and excessive time apparently billed." Schratz Dec. at 15:21-26.
In reviewing these objections the court can find no billing entry cited by defendants that should be considered a cost rather than an hourly fee. The only concrete example that defendants point to in support of the mis-billing allegation is legal assistant Pickett's billing entries referring to updating files, which plaintiffs counsel subtracted from the fee request. Pl.'s Reply at 10. The court is satisfied that the billing statement reflects the allocation of personnel in an efficient and effective manner.
3. Inordinate Hours
Time requests significantly in excess of the norm are subject to higher scrutiny by the court determining their reasonableness. See Ramos v. Lamm, 713 F.2d 546, 533 (10th Cir. 1983). Defendant notes that on April 26, 2001, paralegals Pickett and Johnson billed eleven hours and four hours and attorneys Levy and Gardner billed twenty and twenty-one hours, respectively. On April 23, 2001, paralegals Johnson and Pickett billed seventeen and fifteen hours and attorneys Levy and Gardner billed twelve and fourteen hours respectively. Ms. Levy attributes the high number of hours billed on April 26, 2001 to an unexpected personnel shortage that required others to suddenly work long hours. Defendant questions such claimed hours as significantly in excess of the norm, and thus unreasonable.
In light of the triable issue raised in this case, it is not hard to imagine that preparation of a sophisticated trial presentation is necessary. How this court could determine some different number of hours which might "reasonably" have been spent on these matters is equally difficult to imagine, as is how the product of any such effort would produce a more "reasonable" fee.
On the other hand, defendants should not be required to pay for the inefficiency created by the personnel problem experienced by plaintiffs counsel on April 26, 2001. Thus the number of hours worked by paralegals Pickett and Johnson will be reduced by five each and Levy and Gardner by seven each. Thus the court reduces the fee award by $3,943.00.
C. Hours Properly Billed At a Lower Rate
In addition to challenging Levy's rate, defendants argue that Levy should not be permitted to bill a premium rate for merely routine work that could have been completed by less costly personnel. Defendants specifically object to the following entries by Levy:
(a) 1.8 hours and $351 fees on 3/29/99: "Prepare dismissal of Petaluma defendants (.4) and attachment for subpoena to Petaluma Police Department (1.4)."
(b) 1.2 hours and $354 fees on 4/13/99: "Prepare correspondence to Mr. Christianson re depositions; prepare depositions; prepare deposition subpoenas; prepare subpoena of records from Department of Justice; telephone conference with Department of Justice me criminologist's reports."
(c) .2 hour and $59 fees on 4/14/99: "Prepare deposition subpoenas and notices."
(d) .2 hour and $59 fees 5/17/99: "Attend to scheduling deposition of Deputy Neiss."
Schratz Dec. at 10:2-18. That on occasion Levy attended to simple matters does make the billing per se unreasonable. The court recognizes that even some day-to-day work ordinarily handled by associates occasionally requires the attention of senior attorneys. The fact that the challenged billing entries are de minimis compared to the total request demonstrates that such activity is the exception rather than the norm and likely reduced that time that might have been expended by someone less experienced. The court finds the fee requests reasonable.
IV. Enhancement of Lodestar Amount
Plaintiff has requested a multipher of 1.5 to be applied to the lodestar. The lodestar figure presumably includes a consideration of all the factors constituting a reasonable attorneys' fee and only unusual circumstances justify the enhancement of the fee by a multipher. See City of Burlington v. Dague, 505 U.S. 557, 563 (1992) (fee award in a claim pursuant to environmental protection laws could not be enhanced to compensate for the risk of a contingent fee agreement). Fee-shifting statutes do not warrant an increased fee award merely because prevailing party's counsel incurred the risk of non-payment. Id.
Consistent with Dague, the Ninth Circuit has held that an increase of a fee award is appropriate in limited circumstances, on the basis of factors not fully reflected in the basic fee. Guam Soc'y of Obstetricians Gynecologists v. Ada, 100 F.3d 691 (9th Cir. 1996). The Guam court faced an unusual set of circumstances because the remoteness of the forum limited plaintiffs opportunity to obtain local counsel. Furthermore, counsel in Guam faced a unique risk of ostracization and threats to personal safety upon agreeing to represent plaintiffs viewpoint relating to the controversial topic of abortion. Thus, the court approved an increase of the lodestar by a 2.0 multipher.
Defendants claim that no multiplier should apply because the lodestar amount is presumed to be the reasonable rate and this case contains no exceptional circumstances that justify an upward adjustment to the lodestar. While noting the distinctions between Guam and the present case, the court believes that several distinct factors are uncompensated by plaintiffs hourly rate and that use of a multiplier is justified.
Plaintiff originally filed his civil rights lawsuit in propria persona in the Superior Court of Sonorna County. This court requested representation from the federal pro bono program pursuant to 28 U.S.C. § 1915(e). The program then requested the law firm of Crosby, Heafy, Roach and May to undertake representation in this case. Legal service providers voluntarily participate in this project in order to meet the needs of plaintiffs without resources to obtain representation. The participation of high quality law firms, particularly in taking on these difficult cases, improves the accessibility of the judicial system. Although plaintiffs claims were not meritless, he could not have pressed his cause effectively without dedicated counsel.
Several factors render this case undesirable or unmanageable for potential counsel. Civil rights cases involve more risk than the contingency of recovery because their enforcement often challenges established policy and practice and upholds individual rights in the face of law enforcement activity. This was such a case. Counsel represented an unsympathetic plaintiff, who was a fugitive attempting to flee and who later pled guilty to yet other drug charges. As a result of that conviction, plaintiff was incarcerated, further straining communications between potential counsel and client. The potential for a large damage award from an empathetic jury was diminished by the fact that plaintiff incurred a relatively small amount in medical costs as a result of his injuries. The difficult factual question regarding defendant's "reasonable belief' defense required counsel to retrace events that happened very quickly, challenge the actions and judgment of a law enforcement official and defend the constitutional rights of a convicted drug dealer. In order to try this case effectively, counsel was required to independently undertake a time-consuming and expensive investigation even though there was no guarantee of reimbursement for those services. Counsel was also hindered by plaintiffs incarceration which further delay his trial. As a consequence of these factors, counsel is entitled to a fee enhancement for a three-year case that concluded with a jury verdict for their client.
The length and difficulty of the case, together with the absence of any fee-paying client, would have virtually precluded most private attorneys from undertaking the time-consuming prosecution of this matter. To many in the legal profession, plaintiffs unfortunate circumstances overshadow his complaint of constitutional rights violations. Even with the fee-shifting provisions of section 1988, had it not been for plaintiff counsel's dedication and fortitude, more likely than not, Oberfelder would have gone unrepresented. The court grants plaintiff's request of a 1.5 multiplier.
VI. Costs
Plaintiffs counsel also seeks reimbursement of $11,393.36 for out-of-pocket expenses and a bill of costs for $50,912.42. Under section 1988, a party may recover, as part of the award of attorneys' fees, those out-of-pocket expenses normally charged to a fee-paying client. See Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216 n. 7 (9th Cir. 1986). Defendant objects to the $25,727.31 contained within plaintiffs Bill of Costs for services rendered by The Focal Point, a graphics art company that prepared plaintiff's trial exhibits. Without evidence that similar services could have been provided at a lower cost, or that the cost of the services was unreasonable for the preparation of the exhibits, the court finds that the charge for services is properly included in a fee award and that the fees and hours are reasonable under the circumstances of this case. The expenses listed on the Bill of Costs were reasonably spent, were necessary to the effective representation of plaintiff's interests and are authorized for inclusion in an award of attorneys' fees.
V. Fees for this Motion and Motion for New Trial
Plaintiff requests hourly rates of $225.00 for Mr. George, $340.00 for Ms. Levi and $110.00 for legal assistant services expended in the preparation of the present motion for attorneys' fees. Attorneys' fees and costs spent in preparation of a petition seeking fees pursuant to section 1988 are compensable. See Anderson v. Director, Office Workers' Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996); In re Nucorp Energy, Inc., 764 F.2d 655, 661 (9th Cir. 1985).
Defendants claim that the hourly rate of $340.00 for Ms. Levi is excessive and beyond the $295.00 rate otherwise claimed. The increase in Ms. Levi's rate reflects the current cost of her services as recently set by her firm and is comparable with rates charged by other attorneys of similar skill, background and experience. This court awards $19,261.00 in fees expended in the preparation of the fees-on-fees motion.
Plaintiff requests fees in the amount of $24,234.00 and $7,764.04 in costs associated with defendants' motion for new trial. On October 9, 2001 this court denied defendants' motion for new trial. Thus the court grants plaintiffs fee request.
CONCLUSION
For the foregoing reasons, it is hereby ordered that plaintiff is awarded $940,593.00 in attorneys' fees and $62,305.78 in costs. Defendants are ordered to pay $24,234.00 in fees and $7,764.04 in costs for the motion for new trial. In addition, defendants are to pay to plaintiff $19,261.00 for fees and costs associated with this motion. In total, defendants are ordered to pay $1,053,949.82 in total fees and costs. Defendants are to pay plaintiff the above amounts within sixty (60) days of this order.