Prison Legal News v. Schwarzenegger, Attorney Fee Order, California DOC Censorship 2008
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Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 1 of 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 PRISON LEGAL NEWS, 12 13 14 No. C 07-02058 CW Plaintiff, ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR RECOVERY OF FEES AND ESTABLISHMENT OF A SEMI-ANNUAL FEE PROCESS v. ARNOLD SCHWARZENEGGER, et al., 15 Defendants. 16 / 17 Plaintiff Prison Legal News has filed a motion for recovery of 18 reasonable attorneys' fees and establishment of a semi-annual fees 19 process. Defendants oppose the motion. The motion was decided on 20 the papers. Having considered all of the papers filed by the 21 parties, the Court grants Plaintiff's motion in part and denies it 22 in part. 23 BACKGROUND 24 Plaintiff Prison Legal News (PLN) is an organization that 25 alleged that the California Department of Corrections and 26 Rehabilitation (CDCR) illegally censored its publications. In 27 January, 2006, the parties entered into an agreement to negotiate 28 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 2 of 20 1 in order to settle Plaintiff's claims and to avoid litigation. 2 agreement to negotiate provided that Plaintiff "shall be the 3 prevailing party for purposes of reasonable attorneys' fees, costs 4 and expenses pursuant to 42 U.S.C. § 1988 and other relevant fee 5 shifting statutes." 6 The Rosen Decl., Ex. 8 at Appx. A ¶ 8. In December, 2006, the parties entered into a settlement 7 agreement. 8 pay to PLN's counsel reasonable attorneys' fees, costs and expenses 9 until the time that this Settlement Agreement is signed by the The settlement agreement provides that "CDCR agrees to United States District Court For the Northern District of California 10 parties. . . ." 11 provides that 12 13 14 15 16 17 Id. at Ex. 8 ¶ 7. The settlement agreement also PLN and its attorneys expressly reserve their rights to pursue claims for attorneys' fees, costs and expenses for work performed after the time the Settlement Agreement is signed by all parties, including for work spent on substantive issues related to this Agreement and/or work spent securing their fees for fees and collecting any and all fees and expenses that are due to them. The CDCR expressly reserves its right to oppose any such claim. The Parties agree that all issues pertaining to any such attorneys' fees, costs and expenses are unresolved and therefore are subject to Paragraphs 9-10 of this Agreement 18 Id. at ¶ 7(b). Paragraph nine provides that the parties will 19 request that the Court "dismiss the complaint, but retain 20 jurisdiction to enforce the Settlement Agreement, including without 21 limitation, disputes over Defendant's compliance with the terms of 22 this Agreement and the amounts of the attorneys' fees, costs and 23 expenses to be paid to Plaintiff's attorneys." Id. at ¶ 9. 24 Paragraph ten provides that the parties will submit to jurisdiction 25 in this District for purposes of enforcing the settlement 26 agreement. 27 28 2 Case 4:07-cv-02058-CW 1 Document 35 Filed 04/10/2008 Page 3 of 20 The settlement agreement also provides that within 150 days of 2 its execution, Plaintiff would file a complaint in this district 3 alleging the claims resolved by the settlement agreement and that 4 the claims would be immediately dismissed, with the Court retaining 5 jurisdiction to resolve any disputes over compliance or attorneys' 6 fees. Id. at ¶ 8. 7 2007. On August 22, 2007, the parties filed a stipulation and 8 request for dismissal of the case without prejudice.1 9 Plaintiff filed this complaint on April 12, Between December 12, 2006 and September 5, 2007, the parties United States District Court For the Northern District of California 10 attempted to resolve their disputes regarding fees and costs. 11 parties were able to agree to the amount to which Plaintiff was 12 entitled for work done before December 12, 2006, when the 13 settlement agreement was executed. 14 for work performed by its attorneys after December 12, 2006 and for 15 establishment of a semi-annual fees process. 16 17 18 The Now Plaintiff moves for fees DISCUSSION I. Entitlement to Fees Under 42 U.S.C. § 1988, "the court, in its discretion, may 19 allow the prevailing party, other than the United States, a 20 reasonable attorney's fee as part of the costs." 21 plaintiffs are normally entitled to fees unless special 22 circumstances render an award unjust." 23 Sound Power & Light Co., 875 F.2d 695, 696 (9th Cir. 1989). "Prevailing Muckleshoot Tribe v. Puget 24 1 27 The parties originally asked the Court not to close this case upon its dismissal. At a November 27, 2007 case management conference, the parties agreed that this case should be closed upon resolution of this motion for attorneys' fees subject to retention of jurisdiction for enforcement. In a concurrently filed order, the Court now closes the case. 28 3 25 26 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 4 of 20 1 Defendants argue that, although the settlement agreement states 2 that Plaintiff is the prevailing party for purposes of setting 3 reasonable attorneys' fees and costs until the date the settlement 4 agreement was signed by the parties, the plain language of the 5 agreement "does not declare that Plaintiff is the prevailing party 6 on work performed after that date." 7 Defendants argue, Plaintiff is not entitled to fees under § 1988 8 for any work done after the date the settlement agreement was 9 signed. Opposition at 4. Therefore, Plaintiffs counter that they may recover these fees United States District Court For the Northern District of California 10 because they have not explicitly waived the right to collect fees 11 for activities performed to ensure and enforce compliance with the 12 settlement agreement. 13 In Muckleshoot Tribe, the Ninth Circuit held that "a waiver of 14 attorneys' fees may be established by clear language in the 15 release" or, in some circumstances, "where the language in the 16 release is unclear or ambiguous, [by] the intent of the parties 17 that the attorneys' fees be waived." 18 explicit or implicit waiver, a prevailing plaintiff will normally 19 be entitled to recover fees. 20 Id. at 698. Absent such an Id. at 696. Defendants argue that Plaintiff's reservation of its right to 21 seek fees for work performed after the agreement was signed and 22 Defendants' reservation of their right to oppose such a request 23 constitutes a fee waiver. 24 authority for such a reading of a reservation of rights. 25 Plaintiff points out, such a reservation of rights clearly 26 establishes that it does not waive its right to fees for work 27 performed after the settlement agreement was signed. 28 However, Defendants do not cite any 4 As Case 4:07-cv-02058-CW 1 Document 35 Filed 04/10/2008 Page 5 of 20 Defendants next argue that Plaintiff is not a prevailing party 2 "automatically" entitled to fees for work performed after the 3 settlement agreement was signed and, for purposes of work performed 4 after the agreement was signed, "Plaintiff is entitled to 5 prevailing party status only after succeeding on a motion to 6 enforce a material violation of the Settlement Agreement based upon 7 proving a constitutional violation." 8 Plaintiff does not argue that it is "automatically" entitled to 9 fees. Opposition at 6. However, Rather, Plaintiff has filed a motion arguing that it is the United States District Court For the Northern District of California 10 prevailing party for purposes of the work performed after the 11 settlement agreement was signed and that the amount requested is 12 reasonable. 13 Defendants' only argument that Plaintiff is not the prevailing 14 party for purposes of work performed after the settlement agreement 15 was signed is that the agreement "required both parties to 16 undertake work after the date of settlement, specifically the 17 filing of a complaint and a dismissal." 18 Moreover, Defendants argue, "No significant amount of work was 19 necessary to accomplish this task." 20 and do argue that the amount of fees requested by Plaintiff is 21 unreasonable, the minimal nature of the work is not a sufficient 22 basis on which to deny fees altogether. 23 notes, much of the work it performed after signing the settlement 24 agreement was anticipated by the agreement and necessary to 25 effectuate its terms. 26 entitled to attorneys' fees for work performed after the settlement 27 agreement was signed and turns to the reasonableness of the fees 28 Id. Opposition at 6. Although Defendants can Further, as Plaintiff Therefore, the Court finds that Plaintiff is 5 Case 4:07-cv-02058-CW 1 II. Filed 04/10/2008 Page 6 of 20 requested. 2 Document 35 Reasonableness of Fees 3 In the Ninth Circuit, reasonable attorneys’ fees are 4 determined by first calculating the “lodestar.” 5 Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987). 6 ‘lodestar’ is calculated by multiplying the number of hours the 7 prevailing party reasonably expended on the litigation by a 8 reasonable hourly rate.” 9 359, 363 (9th Cir. 1996). Jordan v. “The Morales v. City of San Rafael, 96 F.3d There is a strong presumption that the United States District Court For the Northern District of California 10 lodestar figure represents a reasonable fee. 11 1262. 12 figure upon consideration of additional factors that may bear upon 13 reasonableness. 14 (9th Cir. 1975). 15 labor required, (2) the novelty and difficulty of the questions 16 involved, (3) the skill requisite to perform the legal service 17 properly, (4) the preclusion of other employment by the attorney 18 due to acceptance of the case, (5) the customary fee, (6) whether 19 the fee is fixed or contingent, (7) time limitations imposed by the 20 client or the circumstances, (8) the amount involved and the 21 results obtained, (9) the experience, reputation, and ability of 22 the attorneys, (10) the "undesirability" of the case, (11) the 23 nature and length of the professional relationship with the client, 24 and (12) awards in similar cases. Jordan, 815 F.2d at However, the court may adjust the award from the lodestar Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 The twelve Kerr factors are (1) the time and Id. 25 The Supreme Court has recognized that, while it is appropriate 26 for the district court to exercise its discretion in determining an 27 award of attorneys’ fees, it remains important for the court to 28 6 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 7 of 20 1 provide “a concise but clear explanation of its reasons for the fee 2 award.” 3 Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985) (in computing an award, 4 the district court should provide a “detailed account of how it 5 arrives at appropriate figures for ‘the number of hours reasonably 6 expended’ and ‘a reasonable hourly rate’”) (quoting Blum, 465 U.S. 7 at 898). 8 9 Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Hall v. Plaintiff requests a total of $138,781.29 in fees and costs for work on the case between December 12, 2006, the date the United States District Court For the Northern District of California 10 settlement agreement was signed, and August 31, 2007. 11 represents $95,306.50 in attorneys' fees and $1,376.41 in expenses 12 for time spent on the underlying litigation and $42,098.38 in 13 attorneys' fees and expenses incurred in relation to the instant 14 attorneys' fees claim. 15 is unreasonable on several grounds.2 This amount Defendants argue that the amount requested 16 A. 17 Defendants first argue that Plaintiff improperly included fees Non-Litigation Activities 18 for 10.65 hours spent on "activities unrelated to litigation" such 19 as drafting press releases and responding to media inquiries. 20 Ninth Circuit has held, "Where the giving of press conferences and The 21 2 27 Defendants include a general argument that 99.60 hours of work billed by Plaintiff's attorneys is not sufficiently detailed because they utilized "block billing," that is, they billed as a lump sum across two or more discrete tasks so that someone reviewing the record cannot ascertain how much time was charged to complete a specific task. However, Defendants state that "those entries have not been questioned here solely on the basis of the billing method." A review of the challenged entries reveals that they are sufficiently specific to determine how much time was charged to complete a specific task. Therefore, the Court will not reduce compensation for the hours based on Defendants' claim that the time entries are block-billed. 28 7 22 23 24 25 26 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 8 of 20 1 performance of other lobbying and public relations work is directly 2 and intimately related to the successful representation of a 3 client, private attorneys do such work and bill their clients. 4 Prevailing civil rights plaintiffs may do the same." 5 of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), reh'g denied 6 and opinion vacated in non-relevant part, 984 F.2d 345 (1993). 7 Davis v. City Plaintiff's counsel asserts that the press releases and 8 interviews with members of the press were necessary to the success 9 of this litigation. As Plaintiff argues, absent such press United States District Court For the Northern District of California 10 coverage, the inmates who subscribe to its publication "would be 11 unlikely to learn of the terms of the Agreement, which include a 12 subscription to Prison Legal News for every CDCR institution's 13 libraries." 14 Plaintiff's goal of improving prisoner access to its publication. 15 The Court will not reduce Plaintiff's attorneys' compensable hours 16 on this basis. Reply at 11. This knowledge was crucial to 17 B. 18 Defendants next challenge $11,628.12 in fees based on 52.32 Administrative and Clerical Activities 19 hours of work performed by attorneys and paralegals that they 20 allege is administrative or secretarial. 21 held that "purely clerical or secretarial tasks should not be 22 billed at a paralegal rate, regardless of who preforms them." 23 Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). 24 expert John Trunko identifies tasks including "updating and 25 organizing files, calendaring, supervising support staff, filing 26 and reviewing their billing statements" that Defendants assert they 27 should not be required to pay. 28 The Supreme Court has Defendants' Without citation, Trunko concludes, 8 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 9 of 20 1 "Administrative and clerical activities are considered to be part 2 of a law firm's overhead and, as such, included within the law 3 firm's hourly rates for professional services. 4 not properly chargeable to a client or recoverable in litigation." 5 Trunko Decl. ¶ 11. They are generally 6 However, the Ninth Circuit has held that: 7 If the attorney’s hourly rate already incorporates the cost of work performed by non-attorneys, then courts should not compensate for these costs as an additional reasonable attorney’s fee. The key . . . is the billing custom in the relevant market. Thus, fees for work performed by non-attorneys such as paralegals may be billed separately, at market rates, if this is the prevailing practice in a given community. Indeed, even purely clerical or secretarial work is compensable if it is customary to bill such work separately, though such tasks should not be billed at the paralegal rate, regardless of who performs them. . . . [T]he district court may properly insist that the [moving party] show that it is the custom in the relevant community to bill separately for work performed by the non-attorneys at issue . . . . 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 Trustees of Constr. Indus. and Laborers Health and Welfare Trust v. 16 Redland, 460 F.3d 1253, 1257 (9th Cir. 2006) (internal quotation 17 marks and citations omitted). 18 Lead counsel for Plaintiffs, a partner at the firm, declares 19 that the challenged tasks "are all tasks that would be billed by 20 me, my firm and San Francisco Bay Area attorneys to clients who are 21 billed and who pay bills on a current basis." Rosen Decl. ¶ 17. 22 However, Plaintiffs simply argue that "[m]any of the tasks" 23 challenged as clerical "are in fact crucial tasks that require 24 attorney or paralegal attention." Reply at 11. As examples, 25 Plaintiffs note that Defendants challenge fees for calendaring and 26 reviewing billing statements. 27 28 9 Case 4:07-cv-02058-CW 1 Document 35 Filed 04/10/2008 Page 10 of 20 The challenged tasks were performed by one partner, three 2 associates and two paralegals. 3 reviewing the challenged billing items, the Court finds that the 4 following items are clerical tasks that cannot be billed at a 5 paralegal or attorney rate: 6 See Trunko Decl., Ex. G. Date Name Task Hours Billed Hourly Rate Amount Billed 12/12/06 K. Le Create index for settlement agreement binder .20 $170 $34 3/8/07 K. Le File case emails .20 $170 $34 3/8/07 K. Le File correspondence and memos .20 $170 $34 3/13/07 K. Le File memos and correspondence .20 $170 $34 3/19/07 M. Wilkinson File relevant pages from AW email re: CA regulatory notice registry .30 $160 $48 4/19/07 K. Walczak Update case calendar w/new dates .30 $295 $88.50 4/23/07 M. Wilkinson Copy file and courtesy copies of proof of service, proof of service cover letter and prep for Fed Ex .90 $160 $144 6/6/07 A. Whelan Conf w/ support staff re processing same and emails to/from client re same .15 $340 $51 7 8 9 10 United States District Court For the Northern District of California After 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Case 4:07-cv-02058-CW 1 Document 35 Filed 04/10/2008 Page 11 of 20 6/7/07 M. Wilkinson 2 letters re: notice of lawsuit and waiver of service of summons, gather enclosures, make copies, scan, file, mail, and circulate 2.7 $160 $432 6/25/07 M. Wilkinson Print and gather docs for KMW re filing deadlines and ADR .40 $160 $64 10 7/31/07 S. Rosen Filing .10 $700 $70 11 7/31/07 M. Wilkinson Scan and circulate letter re RPMG hearing transcript .10 $160 $16 8/22/07 K. Walczak Supervise arranging for messenger for courtesy copies of stipulated dismissal, settlement agreement, proposed order to court .20 $295 $59 2 3 4 5 6 7 8 United States District Court For the Northern District of California 9 12 13 14 15 16 17 18 19 TOTAL $1,108.50 20 Therefore, the Court reduces Plaintiff's requested fees by 21 22 $1,108.50. 23 C. Vague Billing Entries 24 Defendants next challenge $14,241.25 in fees based on 20.88 25 hours of entries they argue are "non-descriptive." Opposition at 26 11. 27 by Sanford Rosen for email or conferencing that do not indicate the 28 11 Almost all of the entries challenged on this basis are entries Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 12 of 20 1 subject of such communications or do not indicate the other party 2 or parties involved in the communications. 3 note, many of those entries "are readily understood when viewed in 4 the context of the surrounding entries." 5 example, it is clear that the January 4, 2007 entry for "email 6 to/from AW" was about a letter regarding settlement payment when 7 read in the context of a billing entry by Amy Whelan for "ltr from 8 M. Jorgenson re settlement payment; email to SJR re same" made on 9 the same date. Rosen Decl., Ex. 9 at 2. However, as Plaintiffs Reply at 12. For Moreover, it is not United States District Court For the Northern District of California 10 unreasonable to expect that the partner supervising the case would 11 have multiple entries for conferencing and emailing with the 12 associates working with him. 13 Plaintiff's attorneys' compensable hours on this basis. The Court will not reduce the 14 D. 15 Defendants next challenge $414 of fees based on 1.35 hours of Multiple Attendance and Excessive Internal Conferencing 16 conferences and meetings where multiple attorneys were in 17 attendance and $8,125.22 of fees based on 27.06 hours of intra- 18 office conferencing. 19 denying these fees in their opposition and simply cite their expert 20 Trunko's declaration in support of their request. 21 Defendants do not provide any legal basis for Defendants' request for a reduction for multiple attendance is 22 based on two telephone conferences, one which was attended by a 23 partner and two associates of Plaintiffs' attorneys' firm and 24 another which was attended by two associates.3 Defendants do not 25 3 27 Defendants mistakenly argue that four attorneys billed for one of these calls; however only three attorneys are included in Trunko's "multiple attendance" analysis. Trunko Decl., Ex. I. It appears that Trunko mistakenly included an entry for a conversation 28 12 26 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 13 of 20 1 provide any basis for a finding that having more than one 2 Plaintiff's attorney present at these conferences with counsel for 3 Defendants was unreasonable. 4 reduce Plaintiff's attorneys' compensable hours on this basis. 5 Accordingly, the Court will not Defendants cite only Trunko's declaration in support of their 6 argument that Plaintiff's requested fees should be reduced for 7 excessive internal conferencing. 8 "Frequent conferencing among attorneys has often been criticized by 9 the courts and may indicate excessive staffing or billing for Without citation, Trunko argues, United States District Court For the Northern District of California 10 communications of an administrative nature." 11 Trunko next states that over twenty-one percent of Plaintiff's 12 requested fees are based on billing for intra-office conferencing, 13 a figure Trunko describes as "significant." 14 concludes that the "amount of such conferencing was undoubtedly 15 increased as a result of the involvement of multiple attorneys in 16 the case" before he recommends resolving the issue by arbitrarily 17 challenging "the fees billed by the multiple biller(s) for the 18 conference other than the participant in the conference with the 19 highest total fees for the conference." 20 Defendants provide any explanation for this methodology. 21 as another court stated in rejecting a challenge to fees based on 22 the identical methodology, "A conference with only one participant 23 is no longer a conference. 24 defendant's] view would be to hold that all conferencing by Id. Trunko Decl. ¶ 14. Id. He therefore Neither Trunko nor Moreover, The upshot of accepting [the 25 26 27 between Amy Whelan and "M. Jorgenson" as an example of a conference with multiple attendance even though Whelan was the only Plaintiff's attorney who participated or billed. See Id. at 2. 28 13 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 14 of 20 1 Plaintiff's attorneys was excessive and duplicative." 2 Daimler Chrysler Corp., 520 F. Supp. 2d 589, 605 (D.N.J. 2007). 3 However, Defendants have provided no evidence or argument that any 4 conference was excessive or duplicative. 5 not reduce Plaintiff's attorneys' compensable hours on this basis. Chin v. Therefore, the Court will 6 E. 7 Defendants next argue that they should not be required to pay Research Presumed Familiar 8 for attorney time spent researching issues that Trunko opines 9 "would be presumed to be familiar to experienced counsel." Trunko United States District Court For the Northern District of California 10 Decl. ¶ 15. 11 this determination. 12 entries are based on time spent researching local procedural rules. 13 See Trunko Decl., Ex. K. 14 subject to change and failure to comply with them can result in 15 prejudice to an attorney's clients. 16 Plaintiff's attorneys' compensable hours on this basis. Neither Trunko nor Defendants provide any basis for It appears that almost all of the challenged As Plaintiffs note, such rules are The Court will not reduce 17 F. 18 Defendants next argue, "Of the hours claimed by Plaintiff's Other Duplicative and Potentially Excessive Time 19 counsel for work performed since December 12, 2006[,] 315.27 hours 20 and $103,172.67 were spent on duplicative and excessive 21 timekeeping." 22 Defendants cite only Trunko's declaration in support of this 23 argument. 24 Plaintiff's counsel has billed for 35.43 hours of researching, 25 drafting, reviewing and editing the complaint prior to settlement 26 and that counsel spent additional time on the complaint after the 27 settlement agreement was executed. 28 Opposition at 12. As with their other arguments, Defendants cite as an example of excessive billing that 14 However, Plaintiff notes that Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 15 of 20 1 "the Complaint itself was a negotiated document, requiring back and 2 forth interaction with Defendants and their attorneys." 3 Reply Decl. ¶ 21. 4 complaint includes entries for communications with Defendants and 5 later revisions. 6 that thirty percent of Plaintiff's fee request is based on fees for 7 this fee request. 8 believe that the 125.60 hours spent on this fee request is 9 unreasonable. United States District Court For the Northern District of California 10 Rosen Indeed the challenged time spent on the See Trunko Decl., Ex. L-1. Defendants also note However, Defendants do not indicate why they Defendants next argue that a twenty-five percent reduction in 11 fees is appropriate based on Trunko's conclusion that Plaintiff's 12 attorneys have submitted fees for excessive and redundant tasks. 13 The only factual basis for this argument is Trunko's statement that 14 "[i]n some cases, the time billed for various projects appears 15 potentially excessive." 16 attorneys have already reviewed their billing records and made 17 discrete billing reductions of $14,177.50. 18 reduce Plaintiff's attorneys' compensable hours further than 19 counsel already has. Trunko Decl. ¶ 16. Moreover, Plaintiff's The Court will not 20 G. 21 Defendants next challenge $951.70 of Plaintiff's request for Expenses 22 $1,492.79 in expenses related to litigation. 23 for this challenge is citation to Trunko's conclusion that the 24 expenses claimed are questionable because he believes they are not 25 adequately documented or they are general firm overhead that would 26 not normally be charged to a client. 27 particular, Defendants argue that Plaintiff's charge for $464.69 28 15 Again, the only basis See Trunko Decl. ¶ 17. In Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 16 of 20 1 for online and Westlaw research should be accompanied by further 2 documentation. 3 accrued by a law firm in the course of running a business. 4 However, Plaintiff submits a declaration indicating that both the 5 level of detail of the billing and the request for compensation for 6 such research are consistent with the firm's practice for its 7 paying clients and in its fee applications. 8 ¶ 26. 9 documented and reasonable. United States District Court For the Northern District of California 10 Moreover, he argues, such charges are normally See Rosen Reply Decl. The Court finds that these expenses are adequately Defendants next challenge Plaintiff's claim for $0.20 per page 11 for photocopying. 12 counsel routinely charges $0.25 per page to its paying clients and 13 that these Defendants routinely pay them $0.20 per page in other 14 cases. 15 photocopying. However, Plaintiff provides evidence that The Court will not reduce the amount charged for 16 Finally, Defendants argue that Plaintiff's travel expenses 17 should be reduced because counsel failed to provide receipts or 18 documentation relating to travel on May 11, 2007. 19 items are for $8.00 in tolls and $15.79 and $7.50 in gas for travel 20 to a public hearing on May 11, 2007. 21 Plaintiff provides evidence that this is the level of detail 22 included in counsel's bills to paying clients and in other fee 23 requests. 24 to support Plaintiff's request. 25 compensation sought for expenses. The challenged Trunko Decl., Ex. N. The Court finds that this level of detail is sufficient The Court will not reduce the 26 H. Hourly Rate 27 Determining a reasonable hourly rate is a critical inquiry. 28 16 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 17 of 20 1 Jordan, 815 F.2d at 1262 (citing Blum v. Stenson, 465 U.S. 886, 895 2 n.11 (1984)). 3 court may take into account: (1) the novelty and complexity of the 4 issues; (2) the special skill and experience of counsel; (3) the 5 quality of representation; and (4) the results obtained. 6 Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir. 7 1988). 8 calculation, and should not serve as independent bases for 9 adjusting fee awards. In establishing the reasonable hourly rate, the See These factors are subsumed in the initial lodestar Morales, 96 F.3d at 363-64. The reasonable United States District Court For the Northern District of California 10 rate inquiry should also be informed by reference to the prevailing 11 market rates in the forum district. 12 1392, 1405 (9th Cir. 1992). Gates v. Deukmejian, 987 F.2d 13 Plaintiff seeks an hourly rate of $700 for Sanford Jay Rosen, 14 a 1962 law school graduate and the lead attorney on its case, $340 15 for Amy Whelan, a 2001 law school graduate, $325 for Meghan Lang, a 16 2002 law school graduate, $295 for Kenneth Walczak, a 2003 law 17 school graduate, and between $160 and $170 for paralegals and law 18 student interns. 19 exorbitant and go on to note that the hourly rates requested exceed 20 the average rates charged by law firms in California, $353 for 21 partners and $252 for associates. 22 rates claimed by Plaintiff's counsel far exceed the rates allowed 23 by the Prison Litigation Reform Act (PRLA). 24 not, and indeed cannot, argue that this case is governed by the 25 PRLA. Defendants argue generally that these rates are Defendants further note that the However, Defendants do 26 The only specific argument that Defendants make is that 27 Plaintiff has not provided sufficient evidence to establish that 28 17 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 18 of 20 1 Mr. Rosen's claimed hourly rate of $700 is the prevailing market 2 rate. 3 one other Bay Area law firm bills its managing partner at $700 per 4 hour but name two firms that do so--Altshuler Berzon LLP and Cooley 5 Godward. 6 at least eight law firms that billed over $700 an hour in recent 7 years. 8 9 Defendants argue that Plaintiff only provides evidence that Opposition at 14-15. In fact, Plaintiff's expert cites See, e.g., Pearl Decl. at 8, 10, 11, 13-15. Defendants also argue that Plaintiff's attorneys' claimed rates should be reduced because the case "did not involve complex United States District Court For the Northern District of California 10 legal issues" and involves "issues which Plaintiff has been 11 litigating all over the United States for the past several years.4 12 Opposition at 14. 13 level of skill and significant work were required to reach a 14 settlement in this case. 15 rates claimed by Plaintiff's attorneys. However, Plaintiff provides evidence that a high The Court will not reduce the hourly 16 I. 17 Plaintiff argues that it is entitled to interest on these fees Interest 18 and costs dating back at least to September 12, 2007, the date by 19 which Defendants received notice of the amount of fees and costs 20 claimed by Plaintiff, if not to the date of the Settlement 21 Agreement, the date Plaintiff argues that it "secured its 22 entitlement to a general award of civil rights attorney's fees." 23 Motion at 11. Indeed, the Ninth Circuit has held, "Interest [on 24 25 4 27 Defendants also argue that the fact that this case was resolved without prolonged litigation warrants a reduction in the hourly rate. While the extent of litigation activities goes to the number of hours spent on the case, it does not go to the complexity of the issues themselves. 28 18 26 Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 19 of 20 1 attorneys' fees] runs from the date that entitlement to fees is 2 secured, rather than from the date that the exact quantity of fees 3 is set." 4 1995), cert. denied, 516 U.S. 1146 (1996). 5 respond to this argument. 6 did not state that Plaintiff would be entitled to attorneys' fees 7 for work performed after the agreement was signed; it only 8 recognized that Plaintiff might file a motion for fees for such 9 work. Friend v. Kolodzieczak, 72 F.3d 1386, 1391-92 (9th Cir. Defendants do not Nonetheless, the settlement agreement The Court finds that Plaintiff is only entitled to interest United States District Court For the Northern District of California 10 accruing subsequent to the date of this order. 11 II. 12 Establishment of Semi-Annual Fees Process Plaintiff next argues that the Court should establish a semi- 13 annual process to protect its right to future fee awards. 14 Plaintiff argues that such a process is necessary because "[m]any 15 of the benchmarks set by the Settlement Agreement have not yet been 16 met." 17 Settlement Agreement specifically contemplates that PLN will take a 18 prominent role in ensuring full compliance with the terms of the 19 Agreement." 20 Motion at 11. Further, Plaintiff argues that "the Id. However, as Defendants note, the Settlement Agreement does not 21 specifically establish a right to ongoing monitoring of the 22 implementation of the agreement's terms. 23 Defendants will provide Plaintiff with specific documents and that 24 Plaintiff may file motions to enforce the agreement if it can prove 25 a constitutional violation. 26 compliance work in this matter will be far less extensive than" in 27 other cases with regular fees procedures. 28 It only provides that Moreover, Plaintiff "anticipates that 19 Motion at 12. The Court Case 4:07-cv-02058-CW Document 35 Filed 04/10/2008 Page 20 of 20 1 is not convinced that a regular fees process is necessary or 2 appropriate at this time. 3 Plaintiff from filing further motions for attorneys' fees. 4 5 Of course, this does not preclude CONCLUSION For the foregoing reasons, Plaintiff's motion for attorneys' 6 fees is GRANTED in part and DENIED in part (Docket No. 23). 7 Court awards Plaintiff $137,672.79 in fees and expenses, to be paid 8 forthwith by Defendants. 9 The IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 Dated: 4/10/08 12 CLAUDIA WILKEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20