Opinion
No. CA 97-478L.
February 17, 2000.
REPORT AND RECOMMENDATION
Plaintiffs have filed a motion for attorneys' fees, expenses, and costs. Attorneys David Cicilline and Henry Freedman seek $38,430 and $17,675 in fees respectively. The plaintiffs also request $1,468.12 in costs and expenses. The plaintiffs' total request amounts to $57,573.12. Defendant has filed an objection to plaintiffs' motion asserting that (1) plaintiffs' requested hourly rate is not reflective of the prevailing market rate in the District of Rhode Island; (2) the amount of hours expended by plaintiffs' counsel was excessive; (3) the plaintiffs included duplication of efforts in their petition for attorneys' fees; and (4) the plaintiffs seek the same hourly rate for in-court and out-of-court tasks, as well as for tasks that could have been performed by non-lawyers. The District Court has referred this matter for preliminary review, findings, and recommended disposition. See 28 U.S.C. § 636 (b)(1)(B); Local Rule 32(c). Based upon my review of the legal memoranda, oral argument, and my independent research, I recommend that the District Court grant Attorney Cicilline $21,782.25 in attorney's fees and $243.75 in costs and expenses, and Attorney Freedman $8,617.50 in attorney's fees and no costs or expenses.
42 U.S.C. § 1988 states
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [ 42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.
"The purpose of § 1988 is to ensure 'effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citing H.R. Rep. No. 94-1558, p. 1 (1976)).
Background
A. Underlying Cause of Action
In the underlying lawsuit, plaintiffs sought to have the District Court certify a class, and preliminarily and permanently enjoin the defendant from enforcing R.I. Gen. Laws § 40-5.1-8(e). That statute states:
Eligibility for cash assistance. — (e) Notwithstanding any other provision of this chapter, the amount of cash to which a family is entitled under the chapter shall be reduced by thirty percent (30%) until the family has been a resident of the state for twelve (12) consecutive months; provided, however, that no member of the family who has been resident of the state for twelve (12) consecutive months or longer shall have his or her benefit reduced under this section.
Plaintiffs argued that this statute was not authorized by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 601, et seq., and was violative of plaintiffs' equal protection rights. District Judge Torres, in the absence of then Chief Judge Lagueux, initially denied a temporary restraining order in August of 1997. Subsequently, Chief Judge Lagueux conducted a preliminary injunction hearing on September 10 and 11, 1997 covering a total of 3.5 hours of court time. In March of 1998, Chief Judge Lagueux enjoined enforcement of R.I. Gen. Laws § 40-5.1-8(e), but did not rule on plaintiffs' motion to certify a class. See Westenfelder v. Ferguson, 998 F. Supp. 146 (D.R.I. 1998).
Defendant appealed Chief Judge Lagueux's order to the First Circuit. At oral argument, the First Circuit ordered the parties to brief the impact of a similar case then pending before the United States Supreme Court within ten days of the Supreme Court's decision. When the Supreme Court's decision was filed, and upon review thereof, the defendant conceded that she would not prevail in this matter, immediately contacted counsel for plaintiffs about her plans to withdraw her appeal, and promptly filed a motion to withdraw the appeal in lieu of the additional brief. The First Circuit granted this motion.
B. Request for Attorneys' Fees
1. Attorney Cicilline
Attorney Cicilline ("Cicilline") is requesting a total of $38,430 in attorney's fees. Cicilline has submitted his own affidavit in which he states that he has practiced law in Rhode Island since 1988, that his practice consists in part of civil rights law, and that his "standard billing rate ranges between $225.00-$250.00 per hour." Cicilline Affidavit ¶ 5. He further states that $225.00 is "within the general range of rates chosen, with some lawyers charging more and others less." Id. at ¶ 6. In addition, Cicilline has provided this Court with affidavits from Attorneys Leonard O'Brien and Robert Mann. Attorney O'Brien has been an active member of the Rhode Island Bar since 1977 and his standard hourly rate is $200.00, although he states that "$225.00 per hour is fair and reasonable and within the range of rates charged by attorneys with similar experience in this community." O'Brien Affidavit ¶ 5. Attorney Mann has been an active member of the Rhode Island Bar since 1973 and has a standard hourly rate of $235.00. He believes that the prevailing hourly rate in the community is $225.00 for federal court litigation, and is fair and reasonable and within the range charged by attorneys with similar experience. See Mann Affidavit ¶¶ 5-6.
Furthermore, Cicilline has submitted a list of his activities, contacts, and communications pertaining to this matter in the District Court and the First Circuit. This list includes the date and time allotted to each activity, contact, or communication, plus a brief description thereof.
2. Attorney Freedman
Attorney Freedman ("Freedman") became involved in this matter because of his expertise in welfare law. Moreover, the Welfare Law Center, Inc. of New York, where Freedman is Executive Director, coordinated similar lawsuits throughout the country. Freedman became involved in this matter solely during the appellate phase of this litigation. Freedman is requesting a total of $17,675 in attorney's fees. Freedman has submitted his own affidavit in which he states that he has practiced law at the Welfare Law Center in New York City since 1967, that he was responsible for preparation of the brief and oral argument before the First Circuit, and that "I am billing my time at the rate of $350 an hour." Freedman Affidavit ¶ 7. Freedman has provided no other affidavit supporting this hourly rate.
In addition, Freedman has submitted a list of his activities, contacts, and communications pertaining to this matter in the First Circuit. This list includes the date and time allotted to each activity, contact, or communication, plus a brief description thereof.
C. Request for Costs and Expenses
The plaintiffs seek $1,468.12 in costs and expenses. Plaintiffs have submitted a list of costs and expenses including the following: a filing fee, travel, telephone, transcript, overnight delivery service, brief covers, tape for briefs, and Westlaw.
D. Defendant's Rebuttal
Defendant's have submitted two affidavits from Attorneys Gretchen Bath and Sandra Lanni which were filed in January 1998 in another civil rights matter then pending in this court and in support of those plaintiffs' request for fees. Attorney Bath stated in her affidavit that she had been practicing at Rhode Island Legal Services, Inc. since November 1988 and that she had "been awarded attorney's fees by this Court in § 1983 litigation at a rate of $150 per hour. This rate is consistent with the rate awarded by this Court to other attorneys in our office with similar years of experience." Bath Affidavit ¶ 3. Attorney Lanni stated that she had been practicing law for nineteen years with substantial civil rights litigation experience in the federal court and that her then "customary rate for civil litigation is $175 per hour."Lanni Affidavit ¶ 3.
Discussion
I. Attorney's Fees
A. Prevailing Party
Under 42 U.S.C. § 1988, a prevailing party is entitled to recover attorneys' fees unless "special circumstances would render such an award unjust." Pontarelli v. Stone, 781 F. Supp. 114, 119 (D.R.I. 1992), appeal dismissed, 978 F.2d 773 (1st Cir. 1992) (citations omitted). Plaintiffs are defined as prevailing when they "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) In short, "a plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 792 (1989); see also Farrar v. Hobby, 506 U.S. 103, 111-12 (1992) ("In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."). In the case at bar, the plaintiffs can demonstrate that they succeeded on a significant issue in the litigation and achieved some of the benefit they sought in bringing the suit. The District Court granted a preliminary injunction against the defendant in favor of the plaintiffs. As a result of the plaintiffs' efforts, coupled with the subsequent Supreme Court decision, the State of Rhode Island is no longer enforcing R.I. Gen. Laws § 40-5.1-8(e). Consequently, the plaintiffs constitute "prevailing parties" for purposes of calculating attorneys' fees.
B. Lodestar Approach
The Supreme Court of the United States and the First Circuit use the lodestar approach to calculate attorneys' fees. The lodestar approach multiplies the number of hours reasonably expended on the litigation times a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1190 (1st Cir. 1996);Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). The courts have deemed the lodestar fee presumptively reasonable, although it is subject to an upward or downward adjustment in certain circumstances. See Lipsett v. Blanco, 975 F.2d at 937 (citingBlum v. Stenson, 465 U.S. 886, 897 (1984)).
To calculate the reasonable hours expended, courts ascertain the time counsel actually spent on the case "and then subtract from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary." Id. (quoting Grendel's Den. Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984)). For example, "[t]he time for two or three lawyers in a courtroom or conference, when one would do, 'may obviously be discounted.'"Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986) (quoting King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir. 1977)); see also Lipsett v. Blanco, 975 F.2d at 938 ("A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism.") (citations omitted). In addition, "[c] lerical or secretarial tasks ought not to be billed at lawyer's rates, even if a lawyer performs them." Lipsett v. Blanco, 975 F.2d at 940 (citingMissouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)).
To determine the reasonable hourly rate, courts utilize the "prevailing market rates in the relevant community. . . ."Andrade v. Jamestown Housing Authority, 82 F.3d at 1190; see also Blum v. Stenson, 465 U.S. at 895 n. 11 (defining "prevailing market rates" as "those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation"); United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988) (stating that courts look to the "prevailing rates in the community for comparably qualified attorneys"). The District Court is not obligated to adopt the petitioning attorney's customary billing rate or what that attorney asserts is the prevailing rate in the community. See Andrade v. Jamestown Housing Authority, 82 F.3d at 1190. On the contrary, the District Court is "entitled to rely upon its own knowledge of attorney's fees in its surrounding area. . . ." Id. (citing Nydam v. Lennerton, 948 F.2d 808, 812-13 (1st Cir. 1991); United States v. Metropolitan Dist. Comm'n., 847 F.2d at 19).
The party requesting attorney's fees maintains the burden of providing sufficient documentation and "evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly."O'Rourke v. City of Providence, 1999 WL 1132539 (D.R.I. 1999) (quoting Hensley v. Eckerhart, 461 U.S. at 433). The documentation must constitute a "full and specific accounting of the tasks performed, the dates of the performance, and the number of hours spent on each task." Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 (1st Cir. 1991) (citations omitted). The rationale for requiring a full and specific accounting is to allow the District Court "to gage whether the task performed was warranted," and whether "the time factor allocated was appropriate or excessive." Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994)
C. Upward or Downward Departure
Calculating the lodestar equation does not terminate the inquiry into the fee award. The District Court may adjust the fee upward or downward depending on other factors, including the results obtained.See Hensley v. Eckerhart, 461 U.S. at 434. The result obtained is
particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief. In this situation two questions must be addressed. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?Id. On the other hand, to avoid double counting, "considerations concerning the quality of a prevailing counsel's representation normally are reflected in the reasonable hourly rate" and therefore, "the overall quality of performance ordinarily should not be used to adjust the lodestar" to remove "any danger of 'double counting.'" Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566 (1986). To attain an upward adjustment, the fee applicant has the burden of proving that such an adjustment is necessary. See Blum v. Stenson, 465 U.S. at 898.
D. Application
1. Reasonable Hours Expended by Attorney Cicilline
Cicilline requests compensation for a total of 170.8 hours. As mentioned earlier, this Court must first subtract any "duplicative, unproductive, excessive, or otherwise unnecessary" hours.
a. inadequate documentation
Cicilline includes in his list of activities 24.8 hours of "Hearing Prep," but fails to elaborate about what work he did to prepare for a hearing. Amazingly, Cicilline's time records state that he spent 12.3 hours on September 8 in "Hearing prep." If he did nothing else that day, this would be a Herculean effort. This effort is not only inadequately documented, but appears quite excessive as well.
In addition, Cicilline seeks compensation for 1.5 hours at a "Conference with Steve Brown regarding case," but neglects to inform the Court who Steve Brown is and why it was necessary to discuss the matter with him. Cicilline also requests fees for .50 hours to "Draft letter to Monica Westenfelder and t/c to landlord." Cicilline neglects to inform this Court how much time was devoted to the letter and how much to the telephone conference. Furthermore, this Court is at a loss as to the relevance of a telephone conference with the "landlord."
Lastly, the record discloses that Attorney Lamb of the Welfare Law Center assisted Cicilline with drafting the complaint. Cicilline, however, failed to describe Lamb's contribution as compared with Cicilline's contribution. Therefore, Cicilline's request for fees for the 4.5 hours listed to "Draft Complaint, TRO and Memo" needs to be tailored to his personal contribution to this effort as Attorney Lamb was never an attorney of record and has not requested and may not be granted fees for his legal work. In short, Cicilline has failed to provide enough information under the aforementioned specificity standard, but, as to some of these efforts, some compensation is reasonable as it is obvious to this Court that legal work was necessary and was performed. Consequently, this Court will allow 3 hours for the drafting of the complaint, motion for temporary restraining order and supporting memorandum (deducting a reasonable sum for Attorney Lamb's contribution); 12 hours for time spent in preparation for the hearing on preliminary injunction (the hearing consumed 3.5 hours over two days based on Cicilline's time records and preparation would require re-reading the various memoranda filed by the parties and perhaps the leading cases); and no time for the conference with Brown or the August 13, 1997 letter to Westenfelder and telephone conference with a landlord.
Cicilline also included descriptions such as "Brief," "Brief Prep," and "Reply brief." While these descriptions are not very helpful to this Court, it is clear that Cicilline provided plaintiffs' post-trial memorandum and a reply memorandum to the Court. The post-trial memorandum consists of 15 pages with numerous citations to case law. The reply memorandum consists of 12 pages also with numerous citations. The memoranda are well-written, thorough, and involved complex issues of constitutional law. Consequently, this Court finds the 23.2 hours Cicilline dedicated to plaintiffs' memoranda reasonable.
b. excessive
I have previously discounted some of Cicilline's time spent on "Hearing prep" for inadequate documentation and I also include that time here as excessive. I will not discount the time twice.
Also, Cicilline has included some double-counting. For example, Cicilline seeks compensation for "Preparation of list of exhibits for filing with court." Cicilline cites this activity twice on the same date, 8/19/97 (one of the entries is out of sequence), and for the same number of hours, 1.50. The appropriate number of hours is 1.50, not 3.0.
Cicilline requests fees for 7.95 hours of activity regarding this fee petition. This Court finds it excessive to make defendants compensate Cicilline at his allowed hourly rate for work done to collect attorney's fees. "[T]ime reasonably expended in connection with fee applications is itself compensable, but, since time spent in this exercise often amounts to little more than 'documenting what a lawyer did and why he or she did it,' it may fairly be compensated at a reduced rate."Brewster v. Dukakis, 3 F.3d 488, 494 (1st Cir. 1993) (citingGabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983)). InBrewster, the First Circuit allowed compensation at the rate of $80.00 per hour for this time and this Court will follow this practice.
c. duplicative
Furthermore, Cicilline seeks compensation for duplicative work during the appellate phase of this case. Attorney Freedman, in his affidavit in support of his request for fees, stated that "I was responsible for the preparation of the First Circuit Brief and the full oral argument to the First Circuit Court of Appeals." Freedman Affidavit ¶ 6. Yet, Cicilline requests attorney's fees for reviewing transcripts, case law and briefs, conducting research for the appellate brief, and attending oral argument. To allow for such compensation would permit "double-billing." An attorney as capable as Mr. Freedman, who has spent almost his entire professional career in this field of law, could easily research the necessary law, review the pertinent material, and prepare an appropriate brief. This is one of those occasions that demonstrate that two attorneys are not necessarily better than one. Consequently, this Court recommends that the District Court deny attorney's fees to Cicilline for work conducted at the appellate level, except for telephone conferences between Cicilline and Freedman which are appropriate as Cicilline conducted the hearing on preliminary injunction and Freedman was not present. This deduction totals 20.9 hours.
d. unnecessary
Cicilline also seeks compensation for time spent pursuing class certification, a total of 9.55 hours. The District Court, however, never certified a class, nor was it necessary for that Court or the First Circuit to address certification of a class. The District Court entered a preliminary injunction enjoining defendant from "enforcing R.I. Gen. Laws § 40-5.1-8(e), pending final resolution of this case on the merits. The Court need not rule on plaintiffs' request for provisional class certification at this time." Westenfelder v. Ferguson, 998 F. Supp. at 159. In essence, the plaintiffs received relief for themselves and all others similarly situated in that defendant was enjoined from enforcing the state statute as to all. While no hearing or decision was ever necessary on the class certification issue, plaintiffs, as a practical matter, received the same relief. Therefore, the District Court should grant compensation for the 9.55 hours related to class certification.
However, the District Court should deny compensation for 4.0 hours of "Research RE: Eleventh Amendment-Claim for retroactive benefits," as the plaintiffs never alleged or presented this claim to the Court. Consequently, this legal work cannot be deemed necessary to the plaintiffs' claim.
Table 1
Recommendation to the District Court of Items to Exclude from Cicilline's Fee Award Regarding Activity at the District Court
Date Activity Total Reason Time
7/6/97 Conference with Steve Brown 1.50 lack of regarding case specificity
8/13/97 Draft letter to Monica .50 lack of Westenfelder and t/c to specificity landlord
8/18/97 Draft Complaint, TRO and 1.50 lack of Memo specificity
8/19/97 Preparation of list of 1.50 duplicative exhibits for filing with court
9/8-10/97 Hearing prep 12.8 lack of specificity
3/30/98 Research RE: Eleventh 4.00 unnecessary Amendment — Claim for retroactive benefits
Total hours eliminated 21.8
Table 2
Recommendation to the District Court of Items to Exclude from Cicilline's Fee Award Regarding Activity at the First Circuit
Date Activity Total Time Reason
6/23/98 Review State's brief .50 duplicative
6/25/98 Review transcript 1.25 duplicative
7/2/98 Review supporting 3.25 duplicative record/cases
7/5/98 Research for brief 1.65 duplicative
7/6/98 Research for brief 3.00 duplicative
7/10/98 Read cases forwarded by WLC 2.50 duplicative
7/13/98 Research RE: state citations 2.25 duplicative
7/13/98 Review sections of draft of 1.25 duplicative brief and cite check
7/14/98 Review final brief 2.75 duplicative
10/6/98 Argument 2.50 duplicative
Total hours eliminated 20.9
2. Reasonable Rate for Attorney Cicilline
At the hearing on the fee petition, Attorney Cicilline stated that he is a solo practitioner in Providence, Rhode Island. He graduated cum laude from Georgetown University Law Center in 1986. After graduating from Georgetown, Cicilline spent approximately one-two years at the Public Defender Service in Washington, D.C. as a staff attorney. From 1988 to the present, Cicilline has concentrated primarily on criminal defense litigation, with some focus on civil rights litigation.
Cicilline has participated in approximately eight civil rights cases in the last three years, most of which settled before trial. In sum, 15 to 20 percent of Cicilline's practice involves civil rights litigation.
Based on this experience, Cicilline requests this Court to award fees at an hourly rate of $225 per hour. Both of the affidavits provided by Cicilline assert that $225 per hour is fair and reasonable and within the range of rates charged by attorneys in this community with similar experience. However, at least one affidavit, from an attorney with more experience at the Bar than Cicilline, lists his hourly rate at $200.00. The two affidavits provided by defendant are from counsel with similar or more extensive time at the Bar than Cicilline and, in each case, the hourly rate is considerably lower than Cicilline's requested rate.
As stated earlier, however, this Court is "entitled to rely upon its own knowledge of attorney's fees in its surrounding area in arriving at a reasonable hourly rate. . . ." Andrade v. Jamestown housing Authority, 82 F.3d at 1190 (citing Nydam v. Lennerton, 948 F.2d at 812-13). In O'Rourke v. City of Providence, 1999 WL 1132539 (D.R.I. 1999), this Court found that an appropriate range for civil rights litigation in the Providence area is $125 to $200 per hour. The District Court agreed with this conclusion. See id. at *11. The District Court also adopted this Court's finding that plaintiff O'Rourke's Attorney Andrews should receive $150 per hour given that she "is still a relatively young attorney" and that O'Rourke's Attorney DeMaria should receive $200 per hour given his substantial trial experience, including cases involving civil rights matters. Id. at *10-11.
The District Court awarded Attorney Andrews fees at a rate of $150 per hour ("partner role") for work done prior to seeking assistance of Attorney DeMaria, and awarded her fees of $100 per hour ("associate role") for non-duplicative work involving trial preparation, strategic development, and trial time. The case at bar does not present a dichotomy of Cicilline acting as a "partner" and an "associate." On the contrary, all of plaintiffs efforts at the District Court were handled by Cicilline. Moreover, this Court has found that an attorney's fee for plaintiffs' efforts at the First Circuit belong to Freedman. Therefore, no reduction from Cicilline's $175 per hour fee is warranted under the O'Rourke rationale.
This Court's knowledge of hourly rates is based upon information learned at settlement conferences, other reports and recommendations issued by this Court, and decisions of other courts. Given this framework, this Court finds that an acceptable rate for Cicilline, in line with the prevailing market rates in Providence and based upon his experience at the Bar and in civil rights matters, is $175 per hour. This rate slightly exceeds the mid-point of the appropriate range in this market and reflects the risk assumed by Cicilline in taking this matter initially. This rate is reasonable for every hour Cicilline reasonably contributed to this case except the 9.45 hours to prepare a "list of exhibits for filing with court" and the time spent in preparing this fee petition. A paralegal or secretary can engage in such activity at a lower billing rate. In this case, $80 an hour is appropriate for this task.
3. Calculation of fees for Attorney Cicilline
In summary, Cicilline requested compensation for 170.8 hours. After deducting any excessive, duplicative, unnecessary, or undocumented hours, this Court finds that Cicilline is entitled to fees for 120.15 hours at a rate of $175 per hour, and 9.45 hours at a rate of $80 per hour. Cicilline's total fee amounts to $21,782.25.
4. Reasonable Hours Expended by Attorney Freedman a. inadequate documentation
Freedman has also failed to comply with the specificity standard set forth by the First Circuit. First, Freedman asks for compensation for 0.9 hours to "Read articles" (6/26/98), 0.1 hours to "Review with law student" (6/29/98), and 1.5 hours for "Moot Court" (10/02/98). Freedman did not inform this Court what articles he read and why they were relevant. Freedman chose not to explain what he was reviewing with a law student and why. Freedman also did not explain what "Moot Court" was and how it related to this case. Second, Freedman requests a fee for 3.5 hours to "Prepare" (10/03/98) and 5.1 hours to "Prepare (on train)" (10/05/98 — two entries) omitting any specific reference to what he did to prepare. Also, the entry of 5.1 hours on 10/05/98 to "Prepare (on train)" is suspicious as it appears to be a subterfuge charge for the time spent on the train ride from New York to Boston. All of Freedman's aforementioned descriptions of his activity are insufficient. The First Circuit requires a "full and specific accounting of the tasks performed. . . ." Weinberger v. Great Northern Nekoosa Corp., 925 F.2d at 527. Consequently, this Court recommends that the District Court deny-fees for the total 11.1 hours, especially where Freedman had previously expended 8.2 hours in preparation for his oral argument before the First Circuit (9/26/98-10/01/98).
Freedman also includes descriptions such as "Draft brief" and "Revise draft brief." While these descriptions are not very helpful to the Court, Freedman has provided the Court with a copy of his appellate brief. The brief is comprehensive, well-written, and addresses complex issues of constitutional law. Consequently, this Court finds the 21.7 hours Freedman dedicated to the appellate brief to be reasonable.
b. excessive
Freedman includes excessive hours in his fee application when he requests compensation for 0.8 hours to "Re-read state brief, decision below, other papers." Freedman provides no explanation as to why he needs to "re-read" these materials after reading them two days earlier. Consequently, this Court recommends denying fees for the 0.8 hours to "re-read" a brief.
c. unproductive
Freedman also seeks compensation for unproductive time, namely 0.3 hours to "Clean up papers, file." Such time should not be compensated.
Table 3
Recommendation to the District Court of Items to Exclude from Freedman's Fee Award
Date Activity Total Time Reason
6/24/98 Re-read state brief etc. 0.8 excessive
6/26/98 Read articles 0.9 lack of specificity
6/29/98 Review with law student 0.1 lack of specificity
10/02/98 Moot Court 1.5 lack of specificity
10/03/98 Prepare 3.5 lack of specificity
10/05/98 Prepare (on train) 5.1 lack of specificity
10/06/98 Clean up papers, file 0.3 unproductive
Total hours eliminated 12.2
The total number of hours requested by Freedman was 50.5. The total number of hours this Court recommends subtracting from this request is 12.2. Consequently, the number of reasonable hours Freedman contributed to this case is 38.3.
5. Reasonable Rate for Attorney Freedman
Freedman graduated from Yale Law School in 1965. He was an associate at Greenbaum, Wolff Ernst in New York City from 1965 through 1967. Freedman then became a staff attorney at the Center on Social Welfare Policy and Law from 1967 through 1971. From 1971 to the present, Freedman has been Executive Director of the Welfare Law Center in New York City. He has published numerous articles and papers on welfare law and has argued before the First, Second, Fifth, and Sixth Circuits and the Supreme Court of the United States. He is highly competent in appellate advocacy and welfare law.
Freedman stated in his affidavit that "I am billing my time at the rate of $350 an hour" for his contributions in this case.Freedman Affidavit at ¶ 7. He further states that he has used this rate in other civil rights actions where the attorney's fees issue was settled and not litigated. Consequently, the hourly rate of $350.00 was not scrutinized by any court. He provides this Court with no support that such a fee passed muster with any court in any relevant market for someone with similar experience.
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 or reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to — for convenience — as the prevailing market rate.Blum v. Stenson, 465 U.S. at 896.
Here, Freedman has not met his burden as he has offered no support for a prevailing market rate of $350.00. There is also a question as to what community should be considered in determining the prevailing market rate. This matter originated in and the preliminary injunction was heard in Rhode Island. The matter then went before the First Circuit in Boston. Some of Freedman's legal work was accomplished in New York City and some in Boston. None occurred in Rhode Island. A review of case law suggests that in Boston, in 1997, the prevailing market rate for "a civil rights case involving significant matters of law but virtually "undisputed facts", and where the counsel was "first-rate", "capable", but "without prior experience in civil rights litigation", was $200.00 per hour. See McLaughlin v. Boston School Committee, 976 F. Supp. 53, 62 (D. Mass. 1997). In like manner, this matter involves issues of law rather than fact.
In the Eastern District of New York, in 1998, a prevailing market rate of $275.00 per hour in an employment/labor relations matter was found reasonable. See New Leadership Committee v. Davidson, 23 F. Supp.2d 301, 303-04 (E.D.N.Y. 1998).
The question of which community should be considered in determining the prevailing market rate was discussed in Luciano v. Olsten Corp., 109 F.3d 111, 115-16 (2d Cir. 1997). There, the Second Circuit stated that "[b]ecause this action was commenced and litigated in the Eastern District of New York, the district court's reliance on these rates [of the Eastern District] was proper", even though plaintiff's counsel was based in New York City, located in the Southern District of New York, where hourly rates are somewhat higher, and where much of the legal work took place. Here, Freedman's legal work occurred mostly in New York City and partially in Boston, but not in Rhode Island.
Since Freedman's in-court work occurred in Boston, and the legal work accomplished in New York City was to further the oral argument made in Boston, this Court will apply the prevailing market rate in the Boston community. To apply the prevailing market rate in Rhode Island, where none of Freedman's legal work occurred, seems unfair and unjust.
The prevailing market rate in Boston in 1997, in similar matters, was $200.00 per hour. However, all of Freedman's legal work occurred in 1998 and, unlike counsel in the McLaughlin case, Freedman was experienced in civil rights litigation. Given Freedman's experience in appellate advocacy and welfare law, this Court finds that an appropriate rate for Freedman is $225 per hour. This figure reflects the difference in one year (1997 to 1998), the substantial experience of Freedman in this field, and the high quality of Freedman's appellate brief.
6. Calculation of Fees for Attorney Freedman
In summary, this Court finds that Freedman is entitled to fees for 38.3 hours at a rate of $225.00 per hour, or $8,617.50.
7. Upward or Downward Departure
In this case, the plaintiffs attained their desired results, (i.e., Rhode Island ceased enforcement of R.I. Gen. Laws § 40-5.1-8(e)). Yet, plaintiffs also had the good fortune of the United States Supreme Court deciding a wholly separate case in a way that made defendant's position untenable. Nevertheless, Cicilline and Freedman contributed to preventing the enforcement of R.I. Gen. Laws § 40-5.1-8(e) by attaining a preliminary injunction and arguing the merits of their case in the First Circuit. Regardless, the plaintiffs did not ask for nor present any evidence supporting an upward adjustment to their fee award. Consequently, this Court recommends neither an upward nor a downward departure from the lodestar calculation.
II. Costs
A. Standard
Fed.R.Civ.P. 54(d) provides that ". . . costs . . . shall be allowed as of course to the prevailing party unless the court otherwise directs;. . . ." Pursuant to 28 U.S.C. § 1920, "[a] judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.28 U.S.C. § 1920 is significant because it "defines the term 'costs'" as used in Fed.R.Civ.P. 54(d). Crawford Fitting Co. v. J.T. Gibbons. Inc., 482 U.S. 437 (1987).
In addition, 28 U.S.C. § 1924 provides that:
[T]he party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and that the services for which fees have been charged were actually and necessarily performed.
Local Rule 25(c)(1) provides:
Costs shall be taxed as provided in Rule 54(d) of the Federal Rules of Civil Procedure. A party entitled to costs shall, within 10 days after the entry of judgment, unless time is extended under Rule 6(b) of the Federal Rules of Civil Procedure, deliver to the clerk of the court and serve on the attorneys for all adverse parties, a costs statement together with a notice of application to have the costs taxed. This statement shall include a memorandum of the costs and necessary disbursement, so specifying each item that the nature of each can be readily understood, and the statement of costs shall be verified by a person acquainted therewith.
A "bill of costs" form (AO 133) is available to the prevailing party and can be obtained from the Clerk's office. This form contains the statutory language from § 1924 and eliminates the need for a separate affidavit.
The Court may exercise discretion when awarding the prevailing party costs and reimbursement of expenses. See In re: Fidelity/Micron Securities Litigation, 167 F.3d 735, 736 (1st Cir. 1999); In re Thirteen Appeals-San Juan DuPont Plaza Hotel Fire Litigation, 56 F.3d 295, 309 (1st Cir. 1995). The Court will consider the facts and equities on a case-by-case basis. In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. 41, 46 (D.P.R. 1992). Unverified expenses and costs may be rejected out of hand. See In re: Fidelity, 167 F.3d at 738; Weinberger v. Great N. Nekoosa Corp., 925 F.2d at 527. "The Court does have discretion to allow unverified costs where it is clear from the nature of the cost that it was necessarily incurred." O'Rourke v. City of Providence, 1999 WL 1132539, *5 (D.R.I. 1999) (citingPhetosomphone v. Allison Reed Group. Inc., 984 F.2d 4, 9 (1st Cir. 1993)).
B. Application
1. Costs and Expenses for Attorney Cicilline
Cicilline seeks a total of $940.15 in costs and expenses, including a filing fee, telephone charges, transcript cost, overnight delivery service, and travel expenses of Attorney Lamb of the Welfare Law Center in order to attend the hearing on preliminary injunction.
Under 28 U.S.C. § 1920, travel expenses of attorneys are not recoverable. See Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D.Tex. 1997) (". . . the travel expenses of attorneys are not recoverable under § 1920."); Walters v. President and Fellows of Harvard College, 692 F. Supp. 1440, 1442 (D.Mass. 1988) ("Section 1920 makes no provision for the recovery of traveling, parking or miscellaneous expenses incurred by the prevailing party's attorneys." (citingCity Bank of Honolulu v. Rivera Davila, 438 F.2d 1367, 1371 (1st Cir. 1971)); Paul N. Howard Co. v. Puerto Rico Aqueduct and Sewer Authority, 110 F.R.D. 78, 83 (D.P.R. 1986) ("Traveling expenses of co-counsel should not be taxed as costs. . . .") (citations omitted). In this case, the District Court denied Attorney Lamb's pro hac vice application. The defendants should not bear the costs of Attorney Lamb's attendance at a hearing before the District Court. Consequently, this Court recommends that the District Court deny Cicilline's request for costs regarding Attorney Lamb's travel expenses in the amount of $610.24.
In addition, telephone expenses are not recoverable under § 1920. See Wolf v. Planned Property Management, 735 F. Supp. 882, 883 (N.D.Ill. 1990) ("Section 1920 does not list long-distance telephone charges as costs which the court may tax. The legal presumption is that if Congress did not list the item in § 1920, the court may not tax it.") (citations omitted); Hollenbeck v. Falstaff Brewing Corp., 605 F. Supp. 421, 439 (D.C.Mo. 1984) (". . . plaintiff's request for costs to cover long distance telephone calls, Federal Express and local delivery service, office expenses, miscellaneous and postage expenses must . . . be denied. The costs requested for these items are not 'costs' as that term is used in 28 U.S.C. § 1920, but are in fact out-of-pocket expenses."); Ezelle v. Bauer Corp., 154 F.R.D. 149, 155 (S.D.Miss. 1994) (holding that long-distance phone calls are out-of-pocket expenses not taxable as costs) (citations omitted);In re Schwinn Bicycle Co., 210 B.R. 764, 771 (Bkrtcy.N.D.Ill. 1997) (holding that § 1920 does not include telephone calls). Nor is overnight delivery service recoverable under § 1920. See Embotelladora Agral Regiomontana. S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. at 418 (holding that express delivery charges represent overhead costs, not litigation costs); In re Schwinn Bicycle Co., 210 B.R. at 771 (stating that § 1920 does not include Federal Express or courier services). Consequently, this Court recommends that the District Court deny the $33.66 in telephone expenses and $52.50 in overnight delivery expenses.
Cicilline may recover for the $150.00 filing fee and the $93.75 in transcript costs, as the transcript was necessary in prosecuting the appeal before the First Circuit. In sum, this Court recommends that Cicilline be permitted to recover $243.75 in costs and expenses.
2. Costs and Expenses for Attorney Freedman
Freedman seeks $527.97 in costs and expenses, including brief covers, tape for briefs, overnight delivery service, travel, and Westlaw. As stated earlier, an attorney's travel and overnight delivery expenses are not recoverable under 28 U.S.C. § 1920. As a result, the District Court should deny Freedman's request for $428.04 in travel and $41.37 in overnight delivery expenses. Furthermore, "Brief Covers" and "Tape for Briefs" constitute out-of-pocket expenses and are not listed items in § 1920. Therefore, the District Court should deny Freedman's request for $39.07 for these expenses.
Freedman may also not recover for the $19.49 incurred in Westlaw research. Courts are split as to whether computer research is a cost recoverable under § 1920. The majority of courts, however, hold that computer research is not listed in § 1920 and therefore may not be taxed as a cost. See Yasui v. Maui Electric Co. Ltd., 1999 WL 1269181 (D.Hawaii 1999) ("This court agrees that computer research is not a cost recoverable under section 1920); Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F. Supp. at 418 ("Research, whether conducted on a computer or in a library, is simply not a cost enumerated under section 1920."); El-Fadl v. Central Bank of Jordan, 163 F.R.D. 389, 391 (D.D.C. 1995) ("Legal research whether computer generated or manually performed by means of digests, legal texts, articles or books is still research which is more properly considered as part of an attorney's fee and not a cost. Therefore, this item will not be taxed as a cost.");Jones v. Unisys Corp., 54 F.3d 624, 633 (10th Cir. 1995) (holding computer research is not taxable under § 1920); Haroco v. American Nat'l Bank and Trust Co. of Chicago, 38 F.3d 1429. 1440 (7th Cir. 1994) (holding that computer assisted research is included as an attorney's fee but not as a cost under § 1920);cf. Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3rd Cir. 1980) (holding that computer research is recoverable in a prevailing party's bill of costs).
In fact, the District Courts within this Circuit are also split as to whether computer research is a cost recoverable under § 1920. Cf. In re San Juan Dupont Plaza Hotel Fire Litigation, 142 F.R.D. at 47 ("[t]he court finds that electronic research charges are not allowable costs. Electronic research charges are properly reflected as part of the law firm's overhead and, as such, are a factor to be included in the setting of attorneys ['] fees as opposed to ordinary costs.") (citing 6 James Wm. Moore et al., Moore's Federal Practice ¶ 54.77[8] (2d ed. 1986)); with United Nuclear Corp. v. Cannon, 564 F. Supp. 581, 591-92 (D.R.I. 1983) ("Lexis is an essential tool of a modern, efficient law office. As such, it saves lawyers' time by increasing the efficacy of legal research. Denial of reimbursement for Lexis charges in a proper case would be an open invitation to law firms to use high-priced attorney time to perform routine research tasks that can be accomplished quicker and more economically with Lexis."); Timberland Design Inc. v. Federal Deposit Ins. Corp., 745 F. Supp. 784, 790 (D. Mass. 1990) (in accord with and quoting from United Nuclear Corp. v. Cannon, 564 F. Supp at 591-92).
As computer research is not listed in § 1920, this Court recommends that the District Court follow the majority rule that computer research is not recoverable under § 1920.
Freedman is therefore, entitled to no costs or expenses.
Conclusion
For the aforementioned reasons, I recommend that the District Court grant the attorneys' fee and expense petitions as follows:
Attorneys Cicilline
• Reasonable hours x Reasonable rate = Attorney's fee.
120.15 x $175 = $21,026.25 9.45 x $80 = $ 756.00 $21,782.25.
• Costs and expenses Filing fee + transcript costs $150 + $93.75 = $243.75.
Attorney Freedman
• Reasonable hours x Reasonable rate = Attorney's fee. 38.3 x $225 = $8,617.50.
• Costs and expenses None.
Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. See Rule 32, Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to file specific objections in a timely manner constitutes a waiver of the right to review by the District Court and the right to appeal the District Court's decision. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).