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James v. Rasmussen

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

December 22, 2016

PATRICK JAMES, SR., Plaintiff,
v.
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

          JON STUART SCOLES CHIEF MAGISTRATE JUDGE

         This 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 December 12.[1] Pursuant to Local Rule 7.c, the application will be decided without oral argument.

         I. BACKGROUND

         On July 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.

         Plaintiff's 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.

         II. DISCUSSION

         The 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).[2] 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.

         Here, James' attorney avers that he expended 560.25 hours in prosecuting this claim, itemized as follows:

drafting of pleadings, motions, and briefs

112.25

legal research

64.25

investigation

51.75

interviewing

20.75

trial preparation

264.00

trial

47.25

TOTAL

560.251

See Plaintiff's Exhibits A-F (docket numbers 69-3 through 69-8).

         A party 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.

         In his 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."[3] In addition, "Plaintiff has agreed to reduce the fee request by the estimated fifty hours of time spent exclusively pursuing against Defendant Rasmussen. "[4] (In his affidavit, Mr. O'Brien states that 40 hours were spent "exclusively pursuing the claim against Rasmussen.")

         Plaintiff's 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 ...

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