Bruce S. Jenkins, United States Senior District Judge
INTRODUCTION
At its most basic, this case at this point is about what should be paid to counsel for work done and costs incurred to vindicate Plaintiff Robert Stoedters (Plaintiff) constitutional right to be free from unlawful seizure. Inherent in that vindication are the ancillary benefits of stressing the importance of that right, educating law enforcement personnel as to proper procedures implicating that right, and clarifying the understanding of those who instruct law officers as to what is required to conform with the Fourth Amendment.
Plaintiff prevailed three times during trial and post-trial proceedings, namely in an early opinion of the court, in the courts granting of Plaintiffs motion for a directed verdict, and in the courts post-trial determination that Plaintiff was entitled to nominal damages as a matter of law because his Fourth Amendment rights were violated.
Plaintiff prevailed a fourth time by the affirmation of the Court of Appeals for the Tenth Circuit.
In consideration of Plaintiffs application for attorneys fees and costs, the court held evidentiary hearings on December 7, 2017 and January 22, 2018 and closing arguments on January 31, 2018. Diana Huntsman appeared on behalf of Plaintiff, and Andrew Morse and R. Scott Young appeared on behalf of Defendants Kenneth Gates and Kenyon Madsen (Defendants). As indicated in the briefing and as clarified at the hearings, Plaintiff seeks a total of $582,902.50 in attorneys fees and costs;
• $321,550.95 in attorneys fees incurred through trial;
• $94,301.25 in attorneys fees incurred in post-trial motions;
• $156,557.50 in attorneys fees incurred at the appellate court level; and • $10,492.80 in costs incurred at the district court and appellate court level.
Having considered the parties briefs, the evidence presented, the arguments of counsel, and the relevant law, the court hereby GRANTS IN PART Plaintiffs applications for attorneys fees and costs. As further discussed below, Plaintiff is entitled to reasonable attorneys fees and costs incurred throughout the case, but the amount of such fees is subject to adjustments. The court finds that the total amount of reasonable attorneys fees and costs awardable to Plaintiff is $260,552.57.
PROCEDURAL HISTORY
• February 23, 2012: Plaintiff filed a complaint against Salt Lake County, Riverton City, Unified Police Department, and Officers Kenneth Gates, Kenyon Madsen, Gregg Shaver, and Brooks Green alleging seven causes of action: (1) violation of the Fourth Amendment by the officers for unreasonable search and seizure and excessive force, (2) violation of the Fourth Amendment by Salt Lake County and Riverton City for failure to train and/or supervise and for deficient policies, (3) violations of Utah Constitution Article I, Sections 1, 7, 9, and 14, (4) negligence by Salt Lake County, Riverton City, and Unified Police Department, (5) negligence by Officers Gates, Madsen, Shaver, and Green, (6) battery, and (7) assault. Plaintiff asked for compensatory and punitive damages for these claims.
• February 7, 2014: Defendants Salt Lake County, Brooks Green, and Gregg Shaver were dismissed.
• March 18, 2014: Defendant Riverton City was dismissed. Plaintiffs claims for negligence, battery, and assault were dismissed.
• August 6, 2014: The court issued a decision (the August 2014 Memorandum Opinion) denying the parties summary judgment motions. The August 2014 Memorandum Opinion determined that, upon arriving at the scene of events, Officers Gates and Madsen did not have reasonable suspicion that an armed robbery or similar armed crime was afoot. Thus, a future jury determination on whether reasonable suspicion or probable cause existed to support Defendants actions would be limited in scope to the time period following the officers approach and initial orders.
• January 5, 2015: During final pretrial conference, Defendant Unified Police Department was dismissed.
• January 7, 2015: The parties submitted a revised stipulated pretrial order, wherein Plaintiff no longer asserted claims for violation of the Utah Constitution. The parties also each separately provided the court with proposed jury instructions. Plaintiffs proposed instructions did not include an instruction on nominal damages. Defendants proposed instructions did include an instruction on nominal damages.
• January 12-16, 2015: The court held a jury trial on the cases sole remaining claim.
• After the parties rested, both Plaintiff and Defendants moved for directed verdict. The court granted Plaintiffs motion, finding the manner in which Officers Gates and Madsen conducted their investigation violated the Fourth Amendment. Having so determined, the court found there were two remaining questions for the jury to answer: did the actions of Officers Gates and Madsen in violation of the Fourth Amendment cause damage to Plaintiff, and, if so, how much?
• Thereafter, the court provided the parties with a package of proposed jury instructions, which did not include an instruction on nominal damages. The parties were given an opportunity to read through the packet and voice concerns at a jury instruction conference.
• At the jury instruction conference, Defendants requested that their proposed nominal damages instruction be added to the final instruction packet presented to the jury. The court denied Defendants request and indicated it would not give an instruction on nominal damages. Thereafter, in response to the courts inquiry as to whether Plaintiff had anything additional to raise, counsel for Plaintiff stated, No, Your Honor. We have nothing to add.
• After the jury instruction packet and special verdict form were accepted and agreed to, the parties made closing arguments, the court instructed the jury, and the jury retired for deliberations.
• The special verdict form asked the jury two questions: (i) did Plaintiff suffer damages as a result of the constitutional violations; and (ii) if so, how much will fairly compensate Plaintiff for such damages?
• After deliberations, the jury returned a verdict finding that Plaintiff suffered no damages as a result of the constitutional violations.
• January 30, 2015: The Clerk of Court entered judgment in favor of Defendants.
• February 13, 2015: Plaintiff filed his original motion for attorneys fees.
• February 27, 2015: Defendants filed a notice of appeal.
• February 27, 2015: Plaintiff filed a Motion for Judgment as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59. In that motion, Plaintiff argued as follows:
The Court should grant Mr. Stoedter an award of damages under Rule 50(b). When the Court granted Mr. Stoedter a directed verdict as it relates to the 4th Amendment, it held that Mr. Stoedters Constitutional rights had been violated. That violation alone should give Plaintiff a claim for damages. In addition, the Court heard evidence from two physicians that the Plaintiff was in fact injured, from his encounter with the Defendant police officers, and as such, is entitled to damages.
As such, it is within the Courts power and discretion to award Mr. Stoedter damages as a result of his injuries. Or, in the alternative, the Court could order a new trial on the issue of damages alone, since the Court directed verdict on the issue of liability.
• June 17, 2015: The court issued a Memorandum Opinion and Order (the June 2015 Memorandum Opinion) partially granting Plaintiffs Motion for Judgment as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59. In the June 2015 Memorandum Opinion, the court denied Plaintiffs request for compensatory damages, but the court granted Plaintiffs request for nominal damages, stating that judgment should be amended in favor of Plaintiff in the amount of $1.
• June 18, 2015: The Clerk of Court entered amended judgment in favor of Plaintiff.
• September 13, 2017: The Tenth Circuit issued its Mandate, affirming this courts determination that the Defendants unreasonably seized Plaintiff in violation of the Fourth Amendment and that nominal damages were warranted.
• October 4, 2017: Plaintiff filed his Supplemental Motion for Attorney Fees.
• October 10, 2017: In response to briefing Plaintiff filed at the appellate court level related to appellate level fees and costs-as well as the resulting dispute as to the timeliness of such briefing-the Tenth Circuit issued a decision denying Plaintiffs bill of costs as untimely but directing the Cleric of the Tenth Circuit to accept as filed Plaintiffs proposed motion for appellate attorney fees.
• October 30, 2017: The Tenth Circuit granted Plaintiffs motion for appellate attorney fees and remanded to this court for a determination of the amount of appellate attorneys fees that were reasonably and necessarily incurred.
• December 7, 2017: The court held an evidentiary hearing on Plaintiffs applications for district level and appellate level attorneys fees and costs.
• January 22, 2018: The court held a continued evidentiary hearing on Plaintiffs applications for district level and appellate level attorneys fees and costs.
• January 31, 2018: The court heard closing argument from the parties on Plaintiffs applications for district level and appellate level attorneys fees and costs. At the close of argument, the court reserved on the matter.
LEGAL FRAMEWORK
Plaintiff seeks attorneys fees pursuant to 42 U.S.C. § 1988(b), which states in relevant part that [i]n any action or proceeding to enforce a provision of sections ... 1983 ... of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneys fee as part of the costs ....
The general rule under § 1988 is that the prevailing party should ordinarily recover an attorneys fee unless special circumstances would render such an award unjust. In enacting § 1988, Congress pointed out that [a]ll of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain. In view of this clearly expressed congressional intent, [the Tenth Circuit] has recognized that the district courts discretion to deny fees to a prevailing party is quite narrow.
According to the Tenth Circuit, [t]he first question in determining whether a party is entitled to attorneys fees under § 1988 is whether he or she qualifies as a prevailing party. In the June 2015 Memorandum Opinion, the court already determined as a matter of law that the violation of Plaintiffs Fourth Amendment rights entitled Plaintiff to nominal damages and that such damages made Plaintiff the prevailing party. Thus, Plaintiff satisfies the first question regarding attorneys fees.
The second question in the attorneys fees inquiry is to determine what amount of reasonable attorneys fees should be awarded to the prevailing party. A court will generally determine what fee is reasonable by first calculating the lodestar-the total number of hours reasonably expended multiplied by a reasonable hourly rate-and then adjust the lodestar upward or downward to account for the particularities of the suit and its outcome. For cases that result in a merely technical or de minimus [sic] award, however, a court may lawfully award low fees or no fees without calculating a lodestar. Consequently, [i]n some circumstances, even a plaintiff who formally prevails under § 1988 should receive no attorneys fees at all.
In determining whether an award is a merely technical or de minimis award, such that no attorneys fees should be awarded, the Tenth Circuit looks to Justice OConnors concurring opinion in Farrar v. Hobby , 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). There, Justice OConnor noted that not all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make. Instead, Justice OConnors concurrence distills various principles from the Courts § 1988 case law into a three-part test to determine whether a prevailing party achieved enough success to be entitled to an award of attorneys fees. The relevant indicia of success in such cases are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose of the litigation.
Thus, under Farrar and Tenth Circuit precedent, although a party may recover no actual damages, insofar as his recovery was not merely technical or de minimis, he should still receive an appropriate, reasonable amount of attorneys fees.
DISCUSSION
There are essentially two issues before the court: (i) is Plaintiff entitled to an award of his attorneys fees and costs incurred throughout this litigation, and, if so, (ii) what is the appropriate amount of such award? Each issue will be addressed in turn.
A. Is Plaintiff Entitled to an Award of His Attorneys Fees and Costs?
The parties segregate this case into three separate stages of litigation-trial, post-trial motions, and appeal. The court will consider whether Plaintiff is entitled to attorneys fees and costs for each stage of litigation.
i. The Case Through Trial
Plaintiff first seeks recovery of attorneys fees and costs incurred through trial. In opposition, Defendants contend Plaintiff achieved merely a technical or de minimis victory and is entitled to zero or minimal fees.
As noted above, the court previously determined that Plaintiffs Fourth Amendment rights were violated, that Plaintiff was entitled to nominal damages, and that Plaintiff therefore was the prevailing party in the action before this court. Thus, in analyzing whether Plaintiff should recover attorneys fees incurred through trial, the court must next consider whether the victory Plaintiff achieved is sufficient to justify awarding fees under 42 U.S.C. § 1988(b). Applying Justice OConnors three-part Farrar test, the court finds awarding attorneys fee incurred through trial is warranted.
The first Farrar factor looks to the difference between the judgment recovered and the judgment sought. In the present case, Plaintiff acknowledges that he requested $450,000 in damages during trial but that he recovered only $1, While Plaintiffs nominal damages are a limited recovery compared to what he sought, such discrepancy is substantially less than the discrepancy in Farrar, wherein the plaintiff sought $17 million in compensatory damages but received only $1.
The second Farrar factor-the significance of the legal issue on which the plaintiff prevailed-weighs heavily in Plaintiffs favor. This factor goes beyond the actual relief awarded to examine the extent to which the plaintiffs succeeded on their theory of liability. Plaintiff proved that his Fourth Amendment rights had been violated as a matter of law. This is a significant victory achieved through trial.
The third Farrar factor-the public purpose of the litigation-also weighs in Plaintiffs favor. This litigation served several public purposes. As an initial matter, it emphasizes that officers must have reasonable suspicion or probable cause before seizing an individual, even when responding to a general report that a man has a gun. Defendants argued repeatedly throughout this litigation that seizing Plaintiff-approaching Plaintiff with guns drawn and ordering him to put his hands up and step off the porch-was how officers were trained to handle man with a gun investigations. As the Defendants acknowledge, this courts ailing and the Tenth Circuits affirmation that Defendants actions violated Plaintiffs clearly established Fourth Amendment rights will force police agencies to reevaluate officer training. Indeed, they should. And such will benefit not only average citizens, whose Fourth Amendment rights are protected in the future from constitutionally deficient actions, but also other police officers, who are now more likely to be properly trained and thus face a lower risk of liability. Further, this litigation served the public purpose of fortifying the fact that, in the Tenth Circuit at least, nominal damages are mandatory upon a finding of a constitutional violation under 42 U.S.C. § 1983. This clarity regarding nominal damages is important for future parties, as nominal damages affect the entry of a final judgment and a plaintiffs ability to vindicate his or her constitutional rights.
Tenth Circuit precedent supports this courts conclusion that, under the Farrar three-part test, Plaintiff achieved more than a technical or de minimis victory and should receive reasonable attorneys fees.
For example, in Koopman v. Water Dist. No. 1 of Johnson Cty., Kan. , 41 F.3d 1417 (10th Cir. 1994), the plaintiff had brought a due process claim after he was discharged from his job. The lower court had ruled as a matter of law that the plaintiff had been denied both pretermination and post-termination hearings, but the jury awarded him only $1. The Tenth Circuit affirmed the lower courts judgment on the merits, but it reversed and remanded the lower courts decision of not awarding the plaintiff attorneys fees. The Tenth Circuit found as follows:
Unlike the litigation in Farrar, this litigation has not been protracted nor are the claims for damages extravagant and, as Koopman claims, his victory sends an important message to the District. As a result of this case, the District is on notice that it must provide its employees with constitutionally adequate pretermination and post-termination hearings. This is a significant victory. Although it is true Koopman received only a nominal award, the present and future employees of the District benefit by having their rights affirmed.
It does not appear to us this is the kind of case Farrar was intended to discourage attorneys from taking. It is true Koopman was not successful in proving he was damaged, but we do not believe he and his attorney should bear the entire cost of battling the Districts unconstitutional practices. Deterring meritorious lawsuits on constitutional issues because they offer a small likelihood of a significant money judgment presents as grave a danger to our legal system as frivolous litigation. In the past, we have attempted to balance these concerns in cases where nominal damages were awarded but which involved the vindication of a constitutional right of significance extending beyond the plaintiff by reducing rather than denying the award of attorneys fees.
It is indisputable that Koopman did not prove actual damages and so under Farrar is not entitled to Ml reimbursement for attorneys fees and costs. Nonetheless, his lawsuit was successful in important ways. We remand the issue of the appropriate amount of attorneys fees and costs to the district court.
Relevant to the present case, the Tenth Circuit in Koopman determined that the plaintiffs minimal $1 recovery under the first Farrar factor did not bar plaintiff from receiving attorneys fees and costs. Instead, looking to the second and third Farrar factors-i.e., the plaintiffs vindication of his due process rights and the benefit this provided to fellow employees in notifying the employer that it must provide adequate pre-termination and post-termination hearings-the Tenth Circuit found that an appropriate amount of attorneys fees and costs should be awarded.
Similarly, in Branclau v. State of Kansas , 168 F.3d 1179 (10th Cir. 1999), the Tenth Circuit found an award of attorneys fees to be appropriate, despite the plaintiffs limited monetary recovery. In Brandau , the plaintiff sued her former state employer on a number of claims, but she only prevailed on her claim for hostile work environment. The jury awarded her nominal damages of $1. Applying the Farrar three-part test, the Tenth Circuit upheld the district courts decision to award the plaintiff attorneys fees:
In this case, the district court applied precisely the analysis we adopted in Phelps. Analyzing the degree of success obtained, the first factor under Farrar , the court found that, despite Plaintiffs limited monetary recovery, her victory was not merely technical or de minimis; instead, the jurys verdict vindicated the violation of her civil rights. The court determined that the difference between the judgment recovered and the recovery sought was significantly distinct from the corresponding difference in Farrar: Plaintiffs claims for damages were not extravagant-she sought only back pay for twenty-one months and $50,000 in non-economic damages-while Mr. Farrar sought damages of $17 million.
The court also relied on the fact that, unlike Mr. Farrars litigation which was drawn out over ten years and two appeals, Plaintiffs litigation was not protracted. Citing this courts decision in Koopman v. Water District No. 1 , 41 F.3d 1417, 1421 (10th Cir.1994), the court determined that Plaintiffs nominal damage award did not preclude an award of fees.
With respect to the second Farrar factor, the significance of the legal issue on which the plaintiff prevailed, the district court determined that Plaintiff succeeded on her primary claim, sexual harassment. Therefore, although she lost her retaliation and constructive discharge claims, Plaintiff succeeded on a significant issue in litigation which achieves some of the benefit [she] sought in bringing suit.
Finally, in examining the third factor, the public purpose served by the plaintiffs success, the district court weighed whether the judgment deters future lawless conduct as opposed to merely occupying the time and energy of counsel, court, and client. The court found that Plaintiff presented evidence that supervisory personnel in [her] department had little training in how to investigate sexual harassment charges, and ... that, in this case, the departments policy on sexual harassment was not followed. Thus, the court found that, [a]s a result of this case, defendant is on notice that it must educate its employees about sexual harassment in the workplace and must promptly investigate any such claims, and the present and future employees of both the Wyandotte County Adult Probation Division, and of the State, benefit by having their rights affirmed. In short, the court found that while Plaintiffs litigation did not achieve significant monetary benefits, it served a larger public purpose. Although Defendant disputes whether such a benefit in fact occurred and argues that any benefit achieved is speculative, the [d]istrict [c]ourt was free, within the bounds of the clearly erroneous standard, to find that the lawsuit did benefit the employees of Kansas and Wyandotte County.
We conclude that the district court appropriately evaluated the reasonableness of a fee award to Plaintiff in light of controlling case law. We also hold that the court did not abuse its discretion in awarding to Plaintiff $41,598.13 in fees and expenses.
As with Koopman and Brandau , application of the three-part Farrar test warrants a finding in the present case that Plaintiff is entitled to a reasonable amount of attorneys fees and costs. Plaintiff did not achieve merely a technical or de minimis victory: although Plaintiff recovered only limited monetary damages, he successfully vindicated his Fourth Amendment rights and provided a meaningful public benefit to Utah citizens and police officers.
Thus, the court finds Plaintiff is entitled to reasonable attorneys fees and costs incurred through trial.
ii. Post-Trial Motions
Second, Plaintiff seeks attorneys fees incurred in post-trial motions. In this segment of litigation, Plaintiff largely prevailed. Although the court partially denied Plaintiffs post-trial motion, in that the court denied Plaintiffs request for compensatory damages and a new trial, the court granted the motion on two major issues. First, the court granted Plaintiffs request for nominal damages. Second, the court granted Plaintiffs request to amend judgment to make Plaintiff the prevailing party.
Thus, the court finds Plaintiff is entitled to reasonable post-trial attorneys fees.
iii. Appeal Before Tenth Circuit
As to the third and final segment of litigation, the Tenth Circuit has already spoken on the issue of appellate level attorneys fees: the Tenth Circuit ruled that Plaintiff is entitled to attorneys fees and remanded the question to this court to determine the amount of appellate attorneys fees that were reasonably and necessarily incurred.
Thus, pursuant to the Tenth Circuits order, Plaintiff is entitled to reasonable appellate level attorneys fees.
B. What are the Appropriate Amounts of Attorneys Fees and Costs?
Having determined that Plaintiff is entitled to reasonable attorneys fees and costs incurred throughout litigation, the court must next determine what amount should be awarded.
Plaintiff provided evidence that he incurred $444,237.00 in attorneys fees through trial-which Plaintiffs counsel voluntarily reduced by 40%, for a net amount of $266,542.20-as well as $67,026.25 in attorneys fees in post-trial motions and $113,493.75 in attorneys fees on appeal. Additionally, Plaintiff provided evidence that he incurred costs through trial in the amount of $9,370.44, as well as additional expenses on appeal in the amount of $1,122.36.
Addressing first the costs and expenses incurred through trial and on appeal, the court finds such amounts to be reasonable. The court awards Plaintiff $9,370.44 for costs through trial under 28 U.S.C. § 1920 and 42 U.S.C. § 1988 and $1,122.36 for expenses on appeal under 42 U.S.C. § 1988, for a total amount of $10,492.80.
Addressing next Plaintiffs attorneys fees, the question as to what amount is appropriately awarded to Plaintiff requires the court to assess (i) whether the fees awarded should be reduced for issues such as Plaintiffs counsels lack of civil rights experience, inadequate time entries, and improper billing; (ii) whether the fees awarded should be enhanced because Plaintiffs counsel took the case on a contingency basis; (iii) whether the fees awarded should be enhanced to reflect the current billing rates of Plaintiffs counsel rather than the rates Plaintiff agreed to pay at the start of this action; and (iv)
whether the fees awarded should be reduced to reflect the degree of success Plaintiff achieved in this action. The court will address each matter in turn.
i. Reductions for Inexperience, Inadequate Time Entries, and Improper Billing
Defendants argue that, even if the court awards Plaintiff attorneys fees, such fees should be significantly reduced. Defendants contend the fees should be reduced to account for Plaintiffs counsels inexperience in civil rights matters; imprecise, excessive, duplicative, and unreliable time entries; and improper billing.
As to Plaintiffs attorneys fees incurred through trial and post-trial motions, the court finds that the reductions Plaintiffs counsel has already voluntarily applied are sufficient to address the concerns raised by Defendants. The evidence indicates that Plaintiffs counsel discounted her attorneys fees incurred through trial by 40%-i.e., by $177,695-which translates to a discount of nearly one-third of all attorneys fees sought throughout the entire case. This 40% discount is in addition to the discount Plaintiffs counsel also applied to her fee rate when she took Plaintiffs case: although her billing rate had been $275 per hour, she dropped that rate to $225 per hour due to her lack of experience in dealing with cases involving civil rights matters. The court finds that no additional reductions are required for Plaintiffs attorneys fees incurred through trial and post-trial motions.
As to Plaintiffs attorneys fees incurred on appeal, the court generally finds them to be reasonable. The exception pertains to the attorneys fees generated in drafting Plaintiffs appellate brief. Plaintiffs counsel spent approximately 120 hours-approximately $23,750 in fees-in drafting Plaintiffs original 120-page appellee brief. This original brief did not comply with the applicable rules governing the length of appellee briefs, and thus it was rejected by the Tenth Circuit. Thereafter, Plaintiff filed a new 60-page appellee brief that was accepted by the Tenth Circuit.
The court finds that Plaintiff should not receive attorneys fees for a work product that was non-compliant and consequently not accepted as an appellee brief. Thus, Plaintiff is not entitled to the $23,750 fees incurred in what ended up being an extracurricular activity.
The court finds that no additional reductions are required and that Plaintiff is entitled to the remainder of attorneys fees incurred on appeal.
ii. Contingency Enhancement
Plaintiff asks the court to consider enhancing Plaintiffs fee awards because Plaintiffs counsel took the case on a contingency basis.
The Tenth Circuit instructs that a contingency enhancement should be viewed with caution and only awarded in exceptional cases. The Tenth Circuit describes an exceptional case to be one where prior to the litigation, the attorney for the prevailing party was confronted with a real risk of not prevailing. The court analyzes the risk of not prevailing by (i) considering the law in effect at the time the suit was filed and the extent to which the law was unsettled, and (ii) considering the extent to which the outcome of the case depended on resolution of disputed material facts. Once a real risk of not prevailing has been demonstrated, the party seeking to enhance the lodestar must also come forward with evidence that, absent an enhancement, the plaintiff would have faced substantial difficulties in finding counsel in the local or other relevant market.
The present case does not appear to warrant a contingency enhancement. The court did not find the law surrounding Plaintiffs Fourth Amendment claims to be unsettled. Indeed, it was the established nature of the law that led the court to deny the Defendants claims for qualified immunity. Additionally, while Plaintiff submitted evidence suggesting that Robert J. DeBrys law office-a personal injury firm-was disinterested in his case because it was not likely to make the firm enough money, Plaintiff did not submit sufficient evidence that he had difficulty or would have had difficulty securing a civil rights attorney absent the prospect of a contingency enhancement.
As such, the court declines to apply a contingency enhancement to Plaintiffs attorneys fees.
iii. Current Billing Rate Enhancement
Plaintiff asks the court to enhance the attorneys fees awarded by calculating such fees using Plaintiffs counsels current billing rate of $350 per hour, rather than the $225 rate Plaintiffs counsel charged throughout the case.
The Tenth Circuit has instructed that [t]he hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed.
[T]he court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees.
The court finds that the evidence does not sufficiently support a rate adjustment beyond the $225 rate Plaintiffs counsel agreed to charge at the onset of the case. Although Plaintiffs counsel submitted an affidavit stating that her current rate is $350, Plaintiffs counsel did not otherwise provide evidence that she had actually submitted bills to clients or received payment of fees at a rate of $350 per hour. Instead, the court finds that the amount of $225 is an appropriate hourly rate and is consistent with the courts own analysis of the efforts of counsel in this case.
iv. Reductions for Degree of Success
In determining the appropriate amount to award Plaintiff, the court is mindful of the Supreme Courts instruction in Farrar that the degree of success obtained is the most critical factor in considering the reasonableness of attorneys fees.
As Plaintiff acknowledges, where the success achieved is minimal, a reduction in attorneys fees is warranted. In Koopman , after the Tenth Circuit remanded the case, the district court reduced the calculated fees by 60% for lack of success, awarding $15,351.56 in attorneys fees. Similarly, in Bell v. Board of County Comrs of Jefferson County , the Tenth Circuit affirmed a district courts reduction of the lodestar by 90% (from $168,888 to $16,888) based on the plaintiffs lack of success:
Consistent with the Supreme Courts admonition that the degree of success is the most critical consideration in determining the reasonableness of a fee, the district court rightly emphasized the minimal success of the suit. Two of the claims failed outright, and the third did not secure any compensatory or equitable relief. The gross discrepancy between Bells extravagant and overreaching request for $1.4 million and the jurys minimal award is particularly telling. The courts assessment of the other factors, previously discussed in response to particularized objections raised by Bell, lend additional support for its determination. As such we do not find sufficient grounds to disturb the district courts determination of an appropriate fee award in this case.
In considering the present case, where Plaintiff recovered only $1 in nominal damages, a significant lodestar reduction based on the degree of monetary success is appropriate. As such, the court reduces the $266,542.20 of attorneys fees incurred through trial by 65% for lack of success, leaving a total of $93,289.77 in attorneys fees incurred through trial available to Plaintiff.
As previously discussed, in contrast to the case through trial, Plaintiff largely prevailed at both the post-trial and appellate stages of litigation. The court finds that no success-related downward adjustment for attorneys fees incurred at these stages is warranted.
CONCLUSION
For the reasons discussed above, the court hereby GRANTS IN PART Plaintiffs application for attorneys fees and costs.
The court finds the appropriate amount of reasonable attorneys fees and costs to be awarded to Plaintiff is $260,552.57 in total:
• $93,289.77 in attorneys fees incurred through trial;
• $67,026.25 in attorneys fees incurred in post-trial motions;
• $89,743.75 in attorneys fees incurred at the appellate court level; and
• $10,492.80 in costs and expenses incurred through trial and appeal.
IT IS SO ORDERED.
Attachment --------
See August 6, 2014 Memorandum Opinion and Order (hereinafter the August 2014 Memorandum Opinion) (CM/ECF No. 122).
See Jan. 15, 2015 Hrg Tr., (CM/ECF No. 225) at 682:1-8, 694:7-695:5; Jan. 16, 2015 Hrg Tr., (CM/ECF No. 222) at 711:6-10.
See June 17, 2015 Memorandum Opinion and Order (hereinafter the June 2015 Memorandum Opinion) (CM/ECF No. 247) at 19.
See Aug. 3, 2017 Tenth Circuit Order and Judgment (CM/ECF No. 279).
The court attaches its own Exhibit A at the end of this Memorandum Opinion, which provides a break-down of the courts calculation of attorneys fees and costs.
The courts August 2014 Memorandum Opinion denying the parties summary judgment motions provides a more extensive discussion of the underlying facts in the case and the absence of reasonable suspicion or probable cause justifying Defendants seizure of Plaintiff. See August 2014 Memorandum Opinion (CM/ECF No. 122).
See First Am. Compl. (CM/ECF No. 2-1).
See Order (CM/ECF No. 76).
See Order (CM/ECF No. 95).
See Order (CM/ECF No. 96).
See August 2014 Memorandum Opinion (CM/ECF No. 122) at 1, 18.
See Minute Entry (CM/ECF No. 145).
See Third Stipulated Proposed Pretrial Order (CM/ECF No. 259-1).
See Pl.s First Am. Proposed Jury Instructions (CM/ECF No. 148). Note: Plaintiffs original set of proposed jury instructions (CM/ECF No. 66), provided on February 2, 2014, similarly did not provide an instruction on nominal damages.
See Defs. Proposed Jury Instructions (CM/ECF No. 147) at 37 of 52.
See Jan. 15, 2015 Hrg Tr., (CM/ECF No. 225) at 682:1-8, 694:7-695:5.
See Jan. 16, 2015 Hrg Tr., (CM/ECF No. 222) at 711:6-10.
See id. at 716:10-13.
See id. at 716:14-717:11.
See id. at 727:5-11.
See id. at 727:12-15.
See id. at 728:7-9.
See Minute Entry (CM/ECF No. 163).
See Special Verdict Form (CM/ECF No. 168).
See id.
See Judgment (CM/ECF No. 173).
See Pl.s Mot. for Attorneys Fees (CM/ECF No. 177).
See Defs. Notice of Appeal (CM/ECF No. 186).
See Pl.s Mot. for J. as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59 (CM/ECF No. 188).
See id. at 3.
See June 2015 Memorandum Opinion (CM/ECF No. 247).
See id. at 3, 38.
See Amended Judgment (CM/ECF No. 251).
See Aug. 3, 2017 Tenth Circuit Order and Judgment (CM/ECF No. 279).
See Suppl. Mot. and Mem. in Re: Pl.s Pending Mot. for Attorneys Fees (CM/ECF No. 280).
See Oct. 10, 2017 Tenth Circuit Order (CM/ECF No. 286).
See Oct. 30, 2017 Tenth Circuit Order (CM/ECF No. 288).
See Minute Entry (CM/ECF No. 298).
See Minute Entry (CM/ECF No. 308).
See Minute Entry (CM/ECF No. 309).
Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997) (quoting Blanchard v. Bergeron , 489 U.S. 87, 89 n.1, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) ).
Id. (quoting S.Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976) ).
Id. (quoting Wilson v. Stocker , 819 F.2d 943, 951 (10th Cir. 1987) ).
Id. at 1130.
See June 2015 Memorandum Opinion, (CM/ECF No. 247) at 38.
Phelps , 120 F.3d at 1130 (quoting 42 U.S.C. § 1988(b) ).
Id. at 1131 (citing Hensley v. Eckerhart , 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ).
Id. (quoting Farrar v. Hobby , 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ).
Id. (quoting Farrar v. Hobby , 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ).
Farrar v. Hobby , 506 U.S. 103, 121, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (emphasis in original).
See Phelps , 120 F.3d at 1131 (quoting Farrar , 506 U.S. at 121-22, 113 S.Ct. 566 ).
See id. at 1133 (Based upon our analysis of the Farrar factors, we hold that each of these factors weighs in favor of a determination that while the plaintiffs success in this case may have been limited, it was not merely technical or de minimus [sic]. Accordingly, we hold that the district court abused its discretion in not undertaking an analysis to determine what amount of attorneys fees would be reasonable in light of the plaintiffs success in challenging the Kansas Funeral Picketing Act. We therefore remand this case to the district court for a determination of the reasonable amount of attorneys fees.); Koopman v. Water Dist. No. 1 of Johnson Cty., Kan. , 41 F.3d 1417, 1421 (10th Cir. 1994) (It is indisputable that Koopman did not prove actual damages and so under Farrar is not entitled to full reimbursement for attorneys fees and costs. Nonetheless, his lawsuit was successful in important ways. We remand the issue of the appropriate amount of attorneys fees and costs to the district court).
See Defs. Mem. in Oppn to Pl.s Suppl. Mot. for Attorneys Fees, filed Nov. 1, 2017 (CM/ECF No. 289) at 3-5.
See June 2015 Memorandum Opinion (CM/ECF No. 247) at 38.
See Pl.s Mot. and Mem. for Appellate Attorney Fees (CM/ECF No. 293-1) at 116 of 273.
See Farrar , 506 U.S. at 114, 113 S.Ct. 566.
Phelps , 120 F.3d at 1132 (citation omitted).
The court notes that the emphatic citizen who made the 911 call and reported the incident was far more descriptive than simply man with a gun. See Dispatch Transcript, (CM/ECF No.103-3) at 2:5-8; Dispatch Transcript, (CM/ECF No. 103-6) at 2:12-4:11.
See, e.g., February 11, 2014 Hrg Tr. (CM/ECF No. 89) at 239:9-10 (And the police are trained to get control of these folks before discussing why they are there.); June 20, 2014 Hrg Tr. at 48:21-49:3 (And their reasonable training, the protocol that makes a lot of sense, is that you need to protect yourself when youre doing any of these investigations with regard to a man with a gun call. And the way to do that is to have your gun out at a low ready, and if you confront anybody, if you see anybody who is there, and these two men, one of them match the description, then you have to get control of them.); January 12, 2015 Hrg Tr. (CM/ECF No. 239) at 27:9-28:3 (Officers are trained to approach man with a shotgun calls with their sidearms in their hands.... So handguns are in the officers hands per their training.... Officers are trained that when they go to a man with a gun call, especially a man with a shotgun call, that the first thing they need to do is get control of the scene so that they can safely investigate what is going on. Without control no one is safe. Control means that the subjects that you meet are obeying your lawful commands to do what you think they need to do so that the officers can guarantee that they are going to be safe when theyre investigating.; January 14, 2015 Hrg Tr. (CM/ECF No. 221) at 358:17-18 (They are trained to get control, first, so they can have a conversation.).
See Petition for Rehearing and Rehearing En Banc , (CM/ECF No. 280-1) at 8 of 21.
See Aug. 3, 2017 Tenth Circuit Order and Judgment (CM/ECF No. 279) at 18 (Thus, we agree with the district court that, under Searles , nominal damages are mandatory upon a finding of a constitutional violation.).
See Koopman v. Water Dist. No. 1 of Johnson Cty., Kan. , 41 F.3d 1417, 1418 (10th Cir. 1994).
See id.
See id.
See id. at 1421 (internal citations and footnote omitted).
See Brandau v. State of Kansas , 168 F.3d 1179, 1180-81 (10th Cir. 1999).
See id. at 1181.
Id. at 1182-83 (internal citations and footnotes omitted).
Pl.s Mot. for J. as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59, filed Feb. 27, 2015 (CM/ECF No. 188).
See June 2015 Memorandum Opinion (CM/ECF No. 247).
See Oct. 30, 2017 Tenth Circuit Order (CM/ECF No. 288).
The court notes that these appellate level fees include the appellate costs Plaintiff seeks under 42 U.S.C. § 1988. As the Tenth Circuit has instructed, [i]tems that are normally itemized and billed in addition to the hourly rates should be included in fee allowances in civil rights cases if reasonable in amount. See Ramos v. Lamm , 713 F.2d 546, 559 (10th Cir. 1983), overruled on other grounds, Pennsylvania v. Del. Valley Citizens Council for Clean Air , 483 U.S. 711, 725, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987).
See Aff. Of Attorneys Fees, (CM/ECF No. 177-1); Corrected Suppl. Decl. of Pl.s Counsel Regarding Post-Trial Attorneys Fees, (CM/ECF No. 283); Pl.s Evidentiary Hrg Exhibits 3, 4, 5, 6, 7, 8, 9.
See Pl.s Evidentiary Hrg Exhibits 12, 13, 14, 15, 16, 17.
See, e.g., Defs. Mem. in Oppn to Pl.s Suppl. Mot. for Attorneys Fees (CM/ECF No. 289) at 6.
See id. at 6-9.
See, e.g., Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 95:11-97:3; Pl.s Evidentiary Hrg Ex. 3 at 4-5; Pl.s Evidentiary Hrg Ex. 4; Pl.s Evidentiary Hrg Ex. 5.
See Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 87:4-10. The court notes that, beyond generally arguing that Plaintiffs counsels billing rate should be discounted for lack of civil rights experience, Defendants do not contend that $225 is an unreasonable billing rate. Indeed, Defendants expert witness testified that he believed a $225 per hour billing rate is reasonable. See Jan. 22, 2018 Evidentiary Hrg Tr. (CM/ECF No. 312) at 8:20-22.
See, e.g., Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 35:14-38:25, 38:5-40:17, 41:7-11; Jan. 22, 2018 Evidentiary Hrg Tr. (CM/ECF No. 312) at 18:6-22, 38:12-41:22; Pl.s Evidentiary Hrg Ex. 20.
See Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 27:8-28:15, 39:2-40:17, 41:7-11; Jan. 22, 2018 Evidentiary Hrg Tr. (CM/ECF No. 312) at 43:10-46:25.
See Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 112:3-113:21.
See Suppl. Mot. and Mem. in Re: Pls Pending Mot. for Attorneys Fees, filed Oct. 4, 2017 (CM/ECF No. 280) at 10-13.
See Homeward Bound, Inc. v. Hissom Memorial Center , 963 F.2d 1352, 1360 (10th Cir. 1992) (quoting Pennsylvania v. Delaware Valley Citizens Council for Clean Air , 483 U.S. 711, 728, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) ).
See id. (citing Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. at 729-30, 107 S.Ct. 3078 ).
See id.
Id. (quoting Pennsylvania v. Delaware Valley Citizens Council for Clean Air , 483 U.S. at 731, 107 S.Ct. 3078 ).
See Aff. of Robert Stoedter (CM/ECF No, 280-2).
See Suppl. Mot. and Mem. in re: Pl.s Pending Mot. for Attorneys Fees (CM/ECF No. 280) at 8-10.
Ramos v. Lamm , 713 F.2d 546, 555 (10th Cir. 1983), overruled on other grounds, Pennsylvania v. Del. Valley Citizens Council for Clean Air , 483 U.S. 711, 725, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) ; see also Sussman v. Patterson , 108 F.3d 1206, 1211-12 (10th Cir. 1997) (quoting Ramos v. Lamm ).
Ramos v. Lamm , 713 F.2d 546, 555 (10th Cir. 1983), overruled on other grounds, Pennsylvania v. Del. Valley Citizens Council for Clean Air , 483 U.S. 711, 725, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987).
See Pl.s Evidentiary Hrg Ex. 3 at 7.
See Dec. 7, 2017 Evidentiary Hrg Tr. (CM/ECF No. 303) at 106:20-107:10.
See Farrar v. Hobby , 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).
See Reply to Defs. Mem. in Oppn to Pl.s Suppl. Mot. for Attorneys Fees, filed Nov. 15, 2017 (CM/ECF No. 292) at 4 (Defendants assert that because Mr. Stoedter did not prove actual damages, he is not entitled to full reimbursement for fees and costs. This is true. The amount of total fees should be discounted as this Court finds equitable.).
See Koopman v. Water Dist. No. 1 of Johnson Cty., Kan. , 1995 WL 646786, at *5 (D. Kan. Oct. 20, 1995).
See Bell v. Bel. of Cty Comrs of Jefferson Cty , 2005 WL 361510, at *4 (D. Kan. Feb. 15, 2005).
See Bell v. Bd. of Cty. Commrs of Jefferson Cty., 451 F.3d 1097, 1104-05 (10th Cir. 2006) (internal citation omitted).
Success is by no means measured exclusively monetarily. The vindication, the upholding of a citizens Fourth Amendment rights is no minor victory.
The court notes that the Tenth Circuits order remanding the issue of appellate attorneys fees to this court instructed the court to determine the amount of appellate attorneys fees that were reasonably and necessarily incurred. See Oct. 30, 2017 Tenth Circuit Order (CM/ECF No. 288) at 2. In determining the appropriate amount of appellate attorneys fees to award, the Tenth Circuit did not instruct the court to make any downward adjustments as a result of Plaintiffs limited trial-level success.
The court also hereby strikes as moot Defendants Motion to Strike Declaration of Robert B. Sykes (CM/ECF No. 294), as Defendants have since had an opportunity to cross-examine Mr. Sykes and produce their own expert witness.