United States District Court, N.D. Iowa, Cedar Rapids Division
December 22, 2016
PATRICK JAMES, SR., Plaintiff,
GRANT RASMUSSEN, individually and as a Police Officer for the City of Cedar Rapids, Iowa; and BRUCE PAYNE, individually and as a Police Officer for the City of Cedar Rapids, Iowa, Defendants.
ORDER FOR ATTORNEY FEES
STUART SCOLES CHIEF MAGISTRATE JUDGE
matter comes before the Court on the Application for
Attorney's Fees and Expenses (docket number 69-1) filed
by the Plaintiff on November 17, 2016, the Resistance (docket
number 71) filed by Defendant Bruce Payne on December 5, and
the Reply (docket number 72) filed by the Plaintiff on
Pursuant to Local Rule 7.c, the application will be decided
without oral argument.
16, 2015, Plaintiff Patrick James, Sr. sued the City of Cedar
Rapids, Grant Rasmussen, and Bruce Payne pursuant to 42
U.S.C. § 1983, claiming wrongful arrest and the use of
excessive force. The City of Cedar Rapids was dismissed on
summary judgment. Following a trial, the jury found in favor
of Rasmussen on both claims and against Payne on both claims.
The jury awarded damages totaling $30, 000.
counsel now seeks an award of attorney fees and expenses
pursuant to 42 U.S.C. § 1988(b). Defendants concede that
James was the prevailing party in his claims against Payne
and is entitled to recover reasonable attorney fees. Payne
argues, however, that the fees and expenses claimed by James
($207, 929.52) are excessive. In his resistance, Payne
suggests James should recover for 258.46 hours at a
reasonable hourly rate.
methodology to be employed in awarding attorney fees in a
fee-shifting case such as this was described by the United
States Supreme Court in Hensley v. Eckerhart, 461
U.S. 424 (1983). As later explained in Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478
U.S. 546, 564 (1986), the Court in Hensley
"adopted a hybrid approach that shared elements of both
Johnson and the lodestar method of
calculation." The "starting point" for
determining a reasonable fee is "the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate." Hensley, 461 U.S. at
433. "The resulting product is presumed to be
the reasonable fee." Blum v. Stenson, 465 U.S.
886, 897 (1984). See also Delaware Valley, 478 U.S.
at 564. That does not, however, "end the inquiry."
The Court may then adjust the fee upward or downward
depending on a variety of factors, including those identified
in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974). Hensley, 461 U.S. at 434-35. As
the Court noted in Delaware Valley, however,
"many of these factors usually are subsumed within the
initial calculation of hours reasonably expended at a
reasonable hourly rate." 478 U.S. at 564.
James' attorney avers that he expended 560.25 hours in
prosecuting this claim, itemized as follows:
drafting of pleadings, motions, and briefs
See Plaintiff's Exhibits A-F (docket numbers
69-3 through 69-8).
is not entitled to recover attorney fees on a
"distinctly different claim" in which he was
unsuccessful. Hensley, 461 U.S. at 434. However,
those claims "are unlikely to arise with great
frequency." Id. at 435. More often, a
"plaintiff's claims for relief will involve a common
core of facts or will be based on related legal theories.
Much of counsel's time will be devoted generally to the
litigation as a whole, making it difficult to divide the
hours expended on a claim-by-claim basis." That is,
those hours expended by James' attorney which are devoted
to the "litigation as a whole" are compensable,
even though the claims against the City of Cedar Rapids and
Rasmussen were unsuccessful. In other words, only time spent
exclusively on the claims against the City and
Rasmussen are not compensable.
application for fees, James concedes that "the estimated
ten hours he spent exclusively litigating the Monell claim
against the City of Cedar Rapids should be excluded from the
fee award." In addition, "Plaintiff has agreed to
reduce the fee request by the estimated fifty hours of time
spent exclusively pursuing against Defendant Rasmussen.
his affidavit, Mr. O'Brien states that 40 hours were
spent "exclusively pursuing the claim against
counsel works exclusively on a contingent fee basis.
Accordingly, he does not keep his time using a conventional
method. The methodology employed by Plaintiff's counsel
is described in the reply brief as follows:
Because Plaintiffs counsel does no hourly work he does not
have an expensive time and billing software system. Instead,
Plaintiffs counsel electronically saves documentation of work
performed in separate folders, along with the amount of time
it took to complete the task, but does not fill out the
detail of the work performed until later, if necessary. A
review of the documentation makes it easy to later identify
the detail of the work performed. This is contemporaneous
Reply Brief (docket number 72) at 3-4. I believe this is an
unreliable way to accurately record the time expended.
"[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hour rates . . . and should maintain billing
time records in a manner that will enable a reviewing court
to identify distinct claims." Hensley, 461 U.S.
reviewing the itemizations submitted by James in support of
the application for attorney fees, I believe the number of
hours expended was excessive. Plaintiff concedes the hours
expended by his attorney are "considerably more than
typical, " but attributes that to Defendants'
aggressive litigation strategy. The facts in this case were
not complicated. James' claims were based on a single
incident which lasted only a few minutes. Certainly
additional investigation was required regarding the
background of the two officers involved, policies of the
Cedar Rapids Police Department, and the nature and extent of
James* injury, but it cannot be said that this case was
factually complex. Similarly, I do not believe the legal
issues raised in this case were particularly unique or
difficult. The law regarding wrongful arrest and the use of
excessive force is fairly well established.
many of the time entries are cryptic, thereby making it
difficult to determine if they were reasonably necessary, or
are otherwise nonsensical. For example, on January 20, 2016,
Plaintiff's counsel expended 6.5 hours to, among other
things, "prepare rules of the road questions and reptile
questions." See Exhibit N (docket number 69-16)
at 2. The time identified for many other entries, which was
kept in quarter-hour increments, also appears excessive.
to the documentation submitted in support of the application
for attorney fees, James' attorney expended 560.25 hours
in prosecuting this action. James concedes, however, that
approximately 60 hours were spent exclusively on his
unsuccessful claims against the City of Cedar Rapids and
Rasmussen. Accordingly, James asserts his attorney should be
compensated for 500.25 hours. As set forth above, I believe
the time spent on this relatively straightforward case is
excessive, and a 30% reduction is appropriate. After that
reduction, I find that 350.18 hours are compensable.
the Court must determine a reasonable hourly rate.
"[D]etermining an appropriate "market rate' for
the services of a lawyer is inherently difficult."
Blum, 465 U.S. at 495, fn. 11. "Where an
attorney requesting fees has well-defined billing rates,
those rates can be used to help calculate a reasonable rate
for a fee award." McDonald v. Armontrout, 860
F.2d 1456, 1459 (8th Cir. 1988). In his amended affidavit,
however, Mr. O'Brien states that he does not have a
standard hourly fee "since all my cases, including this
one, are handled on a contingency basis." Rather, Plaintiff
submitted the affidavits of prominent Plaintiff's
attorneys giving their opinions on an appropriate hourly
rate. According to mose attorneys, an appropriate rate is
between $350 and $450 per hour. In response, Defendant
submitted the affidavits of experienced defense counsel
regarding their opinions on an appropriate hourly rate. Those
amounts range from S150 to S225 per hour.
attorney is an experienced and well-respeeted trial lawyer.
Mr. O'Brien has a particular specialty in civil rights
actions, including claims against law enforcement
After considering the affidavits submitted by counsel, and
with the Court's own knowledge regarding the market for
legal services in this area, I believe reasonable
compensation is at the rare of $300 per hour. Accordingly,
the Court finds the lodestar attorney fee in this case is
considered whether any adjustment upward or downward from the
lodestar is appropriate in this case. I have specifically
considered the 12 Johnson factors. Most of the
factors identified in Johnson were considered by me
in determining the appropriate lodestar. I find that no
adjustment is required.
summary, I conclude Plaintiff is entitled to attorney fees in
the amount of $105, 054. Plaintiff's costs have
previously been taxed by the Clerk of Court. See
docket number 74.
THEREFORE ORDERED that Plaintiff's Application for
Attorney fees (docket number 69-1) is GRANTED as follows:
Judgment will enter in favor of Plaintiff Patrick James, Sr.
and against Defendant Bruce Payne for attorney fees in the
amount of One Hundred Five Thousand Fifty-Four Dollars ($105,
Court notes parenthetically that the Application for
Attorney's Fees was filed with Plaintiffs Bill of Costs.
Pursuant to Local Rule 54, the Bill of Costs was addressed by
the Clerk of Court. See docket number 74.
12 factors are: (1) the time and labor require; (2) the
novelty and difficulty of the questions; (3) the skill
requisite to perform the legal service properly; (4) die
preclusion of employment by the attorney due to acceptance of
the case; (5) the customary fee; (6) whether the fee is fixed
or contingent; (7) time limitations imposed by the client or
the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) die 'undesirability' of the case;
(11) the nature and length of the professional relationship
with die client; and (12) awards in similar cases. 488 F.2d
James' Brief (docket number 69-2) at 8.
Amended Affidavit of David A. O'Brien (docket number
69-11) at 2, ¶ 7.
noted by Defendants, Mr. O'Brien's substantial
experience in tliis area cuts against Plaintiff s argument
that an extraordinary number of hours were required to
prosecute the action.