United States District Court, N.D. Iowa, Cedar Rapids Division
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 ...