Opinion
CV-19-00180-TUC-RM
11-04-2022
Southwest Fair Housing Council, Plaintiff, v. WG Scottsdale LLC, Defendant.
ORDER
Honorable Rosemary Marquez United States District Judge
Pending before the Court is Plaintiff's Motion for Attorneys' Fees (Docs. 127, 128) and Errata (Doc. 130) and Bill of Costs (Doc. 126). Also pending is Defendant's Motion Re: Bill of Costs. (Doc. 137.) Defendant responded in opposition to the Motion for Attorneys' Fees (Doc. 136) and Plaintiff replied (Doc. 151). Plaintiff responded to the Motion Re: Bill of Costs (Doc. 141). The Court directed Plaintiff to file a final accounting of its attorneys' fees, costs, and expenses, which Plaintiff filed on October 3, 2022. (Doc. 163.)
I. Background
On March 16, 2022, following a three-day jury trial, the jury returned a unanimous verdict for Plaintiff Southwest Fair Housing Council. The jury found that Defendant WG Scottsdale LLC d/b/a Atria Sierra Pointe violated Title III of the Americans with Disabilities Act (“ADA”), the Federal Fair Housing Act (“FHA”), and the Arizona Fair Housing Act (“AZFHA”) and awarded nominal damages as well as $100,000 in punitive damages. (Doc. 120.) The Court denied Defendant's post-trial Motion for Judgment as a Matter of Law or, Alternatively, a New Trial (Doc. 152) and granted Plaintiff's post-trial Motion for Permanent Injunction (Doc. 154).
II. Attorneys' Fees
a. Motion for Attorneys' Fees
Plaintiff seeks to recover $370,722.04 in reasonable attorneys' fees. (Docs. 127, 130, 151, 163.) Plaintiff seeks fees for work performed by attorneys and legal support staff with Richards & Moskowitz PLC, Baskin Richards PLC, and Eisenberg & Baum, LLP. (Id. at 5.) Plaintiff's Reply adjusts its initial figures slightly downward in response to Defendant's objections that its records improperly included time billed for purely clerical work and that it improperly billed for certain expenses, including legal research and alcohol. (Doc. 151 at 17; see also Exhs. 2 and 3.)
Plaintiff initially sought $372,118.50 in attorneys' fees (Doc. 127), then filed an Errata reducing that amount to $371,942.04 (Doc. 130). Plaintiff's Reply reduces the figure further to $370,722.04. (Doc. 151.) Plaintiff's final accounting affirms the $370,722.04 figure. (Doc. 163.)
Plaintiff clarifies that Richards & Moskowitz PLC was formerly known as Baskin Richards PLC. (Doc. 127 at 7; see also Doc. 158-3.) For ease of reference the Court will refer to the firms and their billing records simply as Richards & Moskowitz PLC hereinafter. (See also Doc. 128-2 at 3.)
Eisenberg & Baum, LLP is based in New York City, NY. (See Doc. 163-1.)
Plaintiff argues that, based on the factors set forth in Hensley v. Eckhart, 461 U.S. 424, 429 (1976), it is entitled to the requested award. (Doc. 127 at 5-13.) Specifically, Plaintiff argues its entitlement based on (1) the monetary and nonmonetary results obtained through this litigation, including its successful advocacy on behalf of deaf individuals who face persistent discrimination; (2) the customary fees awarded in similar cases and for attorneys with similar expertise and experience; (3) the time and labor expended in litigating this matter; (4) the skills and experience of counsel; (5) the preclusion of other employment; (6) the risk of accepting the case on a contingent fee; (7) the firms' relationship with the client; and (8) the time expended over four years of litigation. (Id.)
Plaintiff provides affidavits and exhibits in support of its Motion, including a declaration by Andrew Rozynski, a partner at Eisenberg & Baum, LLP and co-director of the firm's Law Center for the Deaf and Hard of Hearing. (Doc. 128.) Mr. Rozynski's declaration states that he has been practicing law for approximately ten years and has overseen this case on behalf of Eisenberg & Baum, LLP since 2018. (Doc. 128-1.) His current practice concentrates on civil rights litigation on behalf of deaf individuals. (Id.) Mr. Rozynski's billable hourly rate for this matter is $550 per hour, based on his experience and expertise in litigating deaf discrimination lawsuits, his reputation in the legal community, the legal and procedural demands of the case, and a recent fee award at a rate of $525 per hour. (Id.) Mr. Rozynski further avers that the case placed significant demands on his billable hours as well as those of other partners and associates who worked on this matter, including Eric Baum, Esq., Reyna N. Lubin, Esq., David John Hommel, Esq., and Andrew M. Clark, Esq., in addition to multiple paralegals and a law clerk. (Id.) This matter was undertaken on a contingency basis. (Id. at 5.)
The declaration also states that he has overseen this lawsuit since 2015; however, the case was filed in 2018.
Mr. Baum is a partner at Eisenberg & Baum, LLP and has been practicing law for twenty years with an emphasis on discrimination law. (Id. at 7.) He was recently awarded a fee at an hourly rate of $650 per hour and seeks that rate here. (Id. at 8.) Ms. Lubin is a senior associate attorney and has been practicing law since 2016. (Id.) She seeks an hourly rate of $450, which Mr. Rozynski avers is within the range of reasonable compensation for attorneys with similar experience and knowledge in New York City and is reasonable considering the demands of this case. (Id.) Ms. Lubin recently received a fee award at an hourly rate of $425 per hour. (Id.) Mr. Hommel is a senior associate attorney and has been practicing law since 2014. (Id. at 9.) He seeks an hourly rate of $450, which Mr. Rozynski avers is within the range of reasonable compensation for attorneys with similar experience and knowledge in New York City and is reasonable considering the demands of this case. (Id.) Mr. Clark is an associate attorney and has been practicing law since 2018. (Id. at 10.) He seeks an hourly rate of $350, which Mr. Rozynski avers is reasonable. (Id.) The three non-attorney staff members, Mr. Wakefield, Mr. Vu, and Mr. McDonough, each seek an hourly rate of $150, which Mr. Rozynski avers is within a reasonable range for paralegals and law clerks with similar experience. (Id. at 11.)
Mr. Rozynski avers that he has “thoroughly reviewed the statement of our time and expenses” and has made a “diligent and good faith effort to remove any hours that are excessive, redundant, or otherwise unnecessary.” (Id.) Mr. Rozynski does not indicate that the rates charged are within the range of reasonable compensation for legal professionals in the Arizona market; his declaration refers to a National Law Journal article from 2014 stating that the average national billing rate for partners was, at that time, $604 per hour, and the average rate for associates was $370 per hour. (Id. at 6.) The declaration also cites Arnhoelter v. Kaus, No. CV-20-00403-PHX-JAT, 2020 WL 4673160, at *4 (D. Ariz. Aug. 12, 2020) for the proposition that federal courts in the District of Arizona, and specifically Maricopa County, have found prevailing hourly rates to range between $300 and $750. (Id. at 8.)
Plaintiff also provides a declaration by William A. Richards, a partner at Richards & Moskowitz PLC, which served as local counsel in this matter. (Id. at 11.) William A. Richards, a partner at Richards & Moskowitz PLC, served as lead counsel for the jury trial. (Doc. 128-2 at 3.) Richards & Moskowitz PLC represented Plaintiff under a contingent fee agreement. (Id.) Mr. Richards is an Arizona attorney with thirty years of civil litigation experience in a broad range of subject areas and bills at a rate of $425 per hour. (Id. at 4.) Mr. Silverman is a senior attorney with several years of civil litigation experience and bills at a rate of $350 per hour. (Id. at 5.) Ms. Stuart is an associate attorney who has been practicing for approximately four years and bills at a rate of $275 per hour. (Id. at 5.) Mr. Ritchey is an associate attorney who has been practicing for approximately four years and bills at a rate of $275 per hour. (Id.) Mr. Miller is a former associate attorney with approximately six years of experience and bills at a rate of $225 per hour. (Id. at 6.) Mr. Wood is a former criminal attorney who was deeply involved in the firm's civil rights practice and bills at a rate of $300 per hour. (Id.) Mr. Esakoff was a law clerk who was sworn in to practice in the District Court of Arizona in 2022; the firm billed his time prior to his swearing-in at the law clerk rate of $125 per hour and his time thereafter at the associate attorney rate of $225 per hour. (Id.) The firm also utilized the services of experienced paralegals as well as a third-year law student and bills their services at the rate of $125 per hour. (Id. at 7.) Mr. Richards avers that these hourly rates are within the range of fees charged by attorneys, law clerks, and paralegals in the Phoenix market with similar experience and qualifications. (Id. at 8.) Mr. Richards further avers that the firm attempts to eliminate unnecessary, duplicative and excessive time in its billing. (Id.) Mr. Richards further avers that although some of the time billed in this matter overlaps with work performed in two other cases with Atria facilities as Defendants, Case No. 4:19-cv-00178-TUC-RM (WG Chandler Villas SH, LLC) and Case No. 4:19-cv-00179-TUC-RM (WG Campana del Rio SH, LLC), the cases are inextricably intertwined such that “no specific division of the labor amongst the different cases is either possible or justified.” (Id. at 9-10.)
The declaration does not specify Mr. Silverman's exact years of experience.
Defendant responded in opposition to the Motion. (Doc. 136.) First, Defendant argues the Motion should be denied because the affidavits and exhibits were untimely filed one day late, and the accompanying Notice of Errata was untimely filed two days late. (Id. at 6.) Next, Defendant argues the Motion should be denied because Plaintiff failed to comply with the requirement pursuant to LRCiv 54(d)(1) that a party consult with opposing counsel to resolve disputed issues related to attorneys' fees. (Id.) Related to the merits of Plaintiff's Motion, Defendant argues that (1) the requested attorneys' fees are excessive in light of Plaintiff's limited success at trial and the lack of evidence that Defendant ever discriminated against deaf individuals outside of this case; (2) Plaintiff's hourly rates are excessive and unreasonable because they are based on New York rates and not prevailing Arizona rates; (3) Plaintiff overstates the time and labor expended in this matter; (4) the vagueness of some of Plaintiff's entries warrants a corresponding fee reduction; (5) Plaintiff seeks fees related to cases previously severed from this case and to claims that were dismissed from this action, which should be denied; and (6) fees for duplicative entries and entries for clerical or administrative tasks should be denied. (Id. at 5-15.)
Defendant's Errata includes a correct and complete version of Exhibit D. (Doc. 138.)
In reply, Plaintiff argues that the Court should exercise its inherent discretion to permit its untimely filing of the affidavits and exhibits in support of its Motion, which was filed approximately one hour after the end of the day of the deadline. (Doc. 151 at 3.) Plaintiff argues that this minor delay did not prejudice Defendant and that Defendant has cited no case where a Court precluded review of an application for attorneys' fees that was filed one hour late. (Id. at 3-4.) Plaintiff further argues that its counsel's rates are reasonable considering the prevailing rates in Arizona, that its entries are sufficiently detailed to comply with LRCiv 54.2, and that federal courts do allow for recovery of fees for work performed on related cases or claims. (Id. at 5-8.) Plaintiff argues that it has already reduced its fees for the work performed on the severed cases, and that it should receive fees for work related to the Affordable Care Act and Rehabilitation Act claims that were dismissed prior to trial. (Id. at 10-11.) Plaintiff argues that it should also receive fees for work it performed in other cases that was “inextricably linked” to this case. (Id. at 8-10, 12-13.) Plaintiff further disputes that it entered duplicative billing. (Id. at 14.) Plaintiff argues that some of the entries which Defendant has objected to as non-billable clerical work are actually non-clerical compensable work but nonetheless revises some of the time entries to which Defendant objects, and attaches the revised entries as Exhibit 3. (Id. at 17; see also id. at Exh. 3.) Thus, Plaintiff's Reply reduces the total amount of attorneys' fees sought to $370,722.04.
Exhibit 2 to the Reply sets forth a comparison between Plaintiff's attorneys' fee applications with a sample of non-requested attorneys' fees. (Doc. 151 at 10.)
b. Applicable Law
The ADA, FHA, and AZFHA each permit a prevailing plaintiff to recover attorneys' fees and costs. 42 U.S.C. § 12205, 42 U.S.C. § 3613(c)(2), A.R.S. § 41-1491.33(2), (3). In civil rights cases such as this one, “a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal citation and quotation omitted).
The factors listed in Local Rule of Civil Procedure 54.2's provisions guide the Court in determining whether the requested attorneys' fees are reasonable. See Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986); LRCiv 54.2(c)(3). “[C]ourts employ the ‘lodestar' method to determine a reasonable attorney's fees award,” which is a two-step process. Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (citing Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). “[A] court [first] calculates the lodestar figure by multiplying the number of hours reasonably expended on a case by a reasonable hourly rate.” Id. “A reasonable hourly rate is ordinarily the prevailing market rate in the relevant community.” Id. (internal citation omitted). “The lodestar figure ‘roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case' [] and is therefore a presumptively reasonable fee.” Id. (citing Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013)). “[T]he court [then] determines whether to modify the lodestar figure, upward or downward, based on factors not subsumed in the lodestar figure.” Id. (internal citations omitted).
In determining what constitutes a reasonable hourly rate, the Court looks to the prevailing market rates in the relevant community “for similar work performed by attorneys of comparable skill, experience, and reputation.” Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995) (internal citation omitted). “[T]he general rule is that the rates of attorneys practicing in the forum district . . . are used.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992) (internal citation omitted). Plaintiff bears the burden of producing “satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (internal citation omitted). “[Affidavits of the plaintiffs' attorneys and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, are satisfactory evidence of the prevailing market rate.” Id. (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.1990)). “Parties seeking fees may ‘establish the appropriate rate for lodestar purposes' by submitting ‘declarations stating that the rate' sought is ‘the prevailing market rate in the relevant community,' which is the forum where the district court sits.” Arnhoelter v. Kaus, No. CV-20-00403-PHX-JAT, 2020 WL 4673160, at *4 (D. Ariz. Aug. 12, 2020) (citing Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir. 1991)). “Additionally, evidence that counsel has charged his usual rate for the type of work done is proof that the rate is reasonable.” Id. (internal citation omitted).
“Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Hensley, 461 U.S. at 433-34. The district court should exclude from the fee calculation “hours that were not reasonably expended.” Id. (internal citation omitted.) Counsel for the prevailing party should exclude hours that are “excessive, redundant, or otherwise unnecessary,” and “billing judgment is an important component in fee setting.” Id.
In the second part of the analysis, in determining whether the lodestar figure should be adjusted upward or downward, the Court considers the following:
(1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other 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) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Carter v. Caleb Brett LLC, 757 F.3d 866, 869 (9th Cir. 2014) (internal citations omitted); LRCiv 54.2(c)(3) (listing factors bearing on reasonableness of attorneys' fee award). A mere statement that the Court has considered the foregoing factors is insufficient; the Court must “articulate with sufficient clarity the manner in which it makes its determination.” Carter, 757 F.3d at 869 (citation and internal quotation marks omitted).
LRCiv 54.2(c) requires that a motion for award of attorneys' fees be supported by a memorandum of points and authorities that discusses the party's eligibility and entitlement to the award and the reasonableness of the amount sought, based on the listed factors. LRCiv 54.2(e)(2) provides that “the party seeking an award of fees must adequately describe the services rendered so that the reasonableness of the charge can be evaluated.” Information that must be included is “(A) The date on which the service was performed; (B) The time devoted to each individual unrelated task performed on such day; (C) A description of the service provided; and (D) The identity of the attorney, paralegal, or other person performing such service.” LRCiv 54.2(e)(1). That rule further provides that services rendered must be adequately described to facilitate the evaluation of the reasonableness of the charge. LRCiv 54.2(e)(2). The Rule provides examples of sufficient service descriptions, including (1) telephone calls “must identify all participants and the reason for the call”; (2) legal research must “identify the specific legal issue researched and, if appropriate . . . the pleading or document”; and (3) preparation of pleadings and documents must identify the document and “the activities associated with its preparation.” LRCiv 54.2(e)(2).
Courts have allowed the recovery of fees for work done on other cases that is inextricably intertwined with the instant case. “[I]f the plaintiff can prove that the fees and expenses incurred in the other litigation resulted in work product that was actually utilized in the instant litigation, that the time spent on other litigation was ‘inextricably linked' to the issues raised in the present litigation, and that plaintiff has not previously been compensated for those fees and expenses, then the district court may include those fees and expenses in its fee award.” Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3d Cir. 1993); see also Bender v. Newell Window Furnishings, Inc., 560 Fed.Appx. 469, 474 (6th Cir. 2014).
c. Analysis
As an initial matter, the Court declines to preclude Plaintiff's Motion as untimely. The Court has inherent discretion as to the application of its Local Rules. See Hamilton v. Exec. Process, LLC, 828 Fed.Appx. 415 (9th Cir. 2020) (reviewing for abuse of discretion a district court's application of local rules); see also Guam Sasaki Corp. v. Diana's, Inc., 881 F.2d 713, 718 (9th Cir. 1989) (sensible treatment of minor rule transgressions is to overlook them); Gary v. Carbon Cycle Ariz. LLC, 398 F.Supp.3d 468, 484-85 (D. Ariz. 2019) (overlooking technical errors due to lack of prejudice). Because the Court finds that Plaintiff's one-hour delay in filing its supporting documentation was de minimis and did not prejudice Defendant, it declines to preclude Plaintiff's Motion on that basis. Likewise, given the procedural history and trial resolution of this matter, the Court declines to preclude the Motion based on Defendant's averment that Plaintiff failed to adequately consult with it prior to filing the Motion pursuant to LRCiv 54(d)(1).
i. Hourly Rates
Next, the Court considers the number of hours reasonably expended multiplied by a reasonable hourly rate in order to calculate the lodestar. First, having considered the rates sought by the attorneys at Richards & Moskowitz PLC, the Court finds those rates reasonable and in line with the prevailing market rates in the District of Arizona. The requested rates are supported by an appropriate declaration that states the attorneys', paralegals', and law clerks' usual rates for the type of work performed and their consistency with market rates in Arizona. Accordingly, the Court finds that the following hourly rates are reasonable for the attorneys, paralegals, and law clerks at Richards & Moskowitz, PLC: $425 per hour for Mr. Richards, $350 per hour for Mr. Silverman, $275 per hour for Ms. Stuart, $275 for Mr. Ritchey, $225 for Mr. Miller, $300 for Mr. Wood, and $125 for paralegals and law clerks.
However, the rates sought by the attorneys at Eisenberg & Baum, LLP are not in line with the prevailing market rates in the District of Arizona. Although Mr. Rozynski's declaration avers that the rates sought by the attorneys at his firm are reasonable, have been awarded in previous cases, and are in line with the prevailing market rates in New York City where the firm is based, the declaration does not aver or provide evidence that the fees are in line with the prevailing market rates in the District of Arizona. Therefore, Plaintiff has not met its burden of providing satisfactory evidence to support the requested fees, and the Court will reduce the fees to align with the prevailing market rates in the District of Arizona as set forth in the declaration of Mr. Richards. The Court finds that the following hourly rates are reasonable for the attorneys, paralegals, and law clerks at Eisenberg & Baum, LLP: $350 per hour for Mr. Rozynski, $425 per hour for Mr. Baum, $275 per hour for Ms. Lubin, $275 per hour for Mr. Hommel, $225 per hour for Mr. Clark, $225 per hour for Mr. Wakefield, and $125 per hour for paralegals and law clerks.
ii. Hours Reasonably Expended
Next, the Court considers the hours reasonably expended in this matter. As an initial matter, the Court will permit recovery of fees for work done on the related cases with Atria Defendants, Case No. 4:19-cv-00178-TUC-RM (WG Chandler Villas SH, LLC) and Case No. 4:19-cv-00179-TUC-RM (WG Campana del Rio SH, LLC). Plaintiff avers that its attorneys, law clerks, and paralegals performed work that benefitted all three cases directly and that cannot be reasonably divided among the cases, including (1) preparing for a settlement conference that addressed all three cases; (2) legal research on issues pertinent to all three cases; and (3) preparation for examination and crossexamination of witnesses and experts who testified both in the trial for this matter and the previous trial held in February 2022 in Case No. 4:19-0179-TUC-RM, which Plaintiff avers allowed their attorneys to more efficiently prepare for the trial in this case. (Doc. 128-2.) Thus, Plaintiff's affidavits and billing records in this matter demonstrate that (1) the work product produced as a result of work done in the other cases was used in this case; (2) the time spent on all three cases was inextricably intertwined; and (3) Plaintiff has not previously been compensated for the fees incurred in the other cases. (Id.)
A. Richards & Moskowitz, PLC
Richards & Moskowitz, PLC provides two invoices reflecting the rates, hours expended, amounts billed, individuals who performed the work, and the purpose of each billing entry. (Doc. 163-1 at 7-37.) The first invoice reflects a total of $40,577.04 billed between November 2017 and July 2020. (Id. at 7-15.) Each item includes the date the work was performed, the timekeeper and his or her hourly rate, the number of hours and amount billed for each item, and a description of the work performed. The second invoice reflects a total of $111,892.50 billed between September 2020 and May 2022. Each item includes the date the work was performed, the timekeeper and his or her hourly rate, the number of hours and amount billed for each item, and a description of the work performed. (Id. at 17-37.) The total amount billed by Richards & Moskowitz, PLC is $152,469.54.
Having considered these invoices, the Court finds that they comply with the requirements of LRCiv 54.2(e) and include sufficiently detailed descriptions of each billed item to allow the Court to determine its reasonableness. The Court further finds, upon applying the second part of the lodestar analysis, that the hours expended are reasonable and that fees need not be adjusted upward or downward. The invoiced tasks and amounts are reasonable in light of the time and labor required for this case, which involved a three-day jury trial and post-trial briefing. Although the legal questions were not especially difficult, the facts of the case were novel and required legal skill. Plaintiff's attorneys clearly forewent other work by dedicating time to this case, which was performed on a contingency basis. The reputations and abilities of the attorneys involved, as well as the favorable outcome of a $100,000 damages award for Plaintiff, further warrant granting the attorneys' fees that Plaintiff requests. Accordingly, the Court will award the fees requested by Richards & Moskowitz PLC and Baskin Richards PLC in the amount of $152,469.54.
B. Eisenberg & Baum, LLP
Eisenberg & Baum, LLP provides an invoice documenting work performed on this case between April 2018 and May 2022. (Doc. 128-1 at 15-39.) The invoice reflects a total amount of $219,472.50 billed during that time period and each item includes the date the work was performed, the individual who performed the work, a description of the work, and the amount of time spent. (Id.) The invoice also includes a summary of each individual's hourly rate and number of hours expended. (Id. at 42.) Notably, Eisenberg & Baum's time records and summary include records of work performed by individuals who were not mentioned in Mr. Rozynski's declaration. (Id.) Accordingly, the Court will deduct these billed hours from Eisenberg & Baum's claimed fees, as they are not supported by any affidavit, declaration, or other evidence. Applying the hourly rates discussed supra for the remaining individuals, including applying a half-time rate to Mr. Baum's and Ms. Lubin's travel time, results in a total amount billed of $134,388.75.
According to the timekeeper summary, these individuals are Juyoun Han and William Juhn. (Doc. 128-1 at 42.) The timekeeper summary also includes time records for Anna Perlstein, Dina Valmon, Greg Acampora, and Kristen Harris, none of whom are individually mentioned in Mr. Rozynski's declaration. However, it appears from the records that these individuals are paralegals and/or law clerks and accordingly the Court will award their time billed, which appears reasonable, at the rate of $125 per hour.
Defendant's response raises questions regarding the discrepancies in billed rates for attorneys Lubin, Baum, and Wakefield. However, Plaintiff addressed these discrepancies, explaining that Lubin and Baum billed travel at half-rate and that Wakefield transitioned from a law clerk to an attorney during these proceedings.
The hourly breakdown for each individual is as follows: Clark: 10.9 hours at $225 per hour; Perlstein: 3.5 hours at $125 per hour; Wakefield: 1.9 hours at $225 per hour and 1.1 hours at $125 per hour; Hommel: 47.4 hours at $275 per hour; Baum: 13 hours at $425 per hour and 4 hours at $212.50 per hour; Lubin: 233.4 hours at $275 per hour and 14.5 hours at $137.50 per hour; Rozysnki: 125.7 hours at $350 per hour; McDonough: 2.3 hours at $125 per hour; Valmon: 3 hours at $125 per hour; Acampora: 3.9 hours at $125 per hour; Harris: 1.6 hours at $125 per hour.
Having considered the invoice, the Court finds that some of the time entries are so vague such that their reasonableness cannot be evaluated and, in addition to the above reductions, will remove the following time entries from the invoice for failure to comply with the descriptive requirements of LRCiv 54.2(e):
The Court lists herein the time values that are being removed. These values do not necessarily correspond to the recorded values.
4/13/2018: Correspondence with client - AR - 0.20
4/14/2018: Draft complaint - AR - 1.0
4/15/2018: Draft complaint - AR - 0.2
4/16/2018: Draft complaint - AR - 0.6
4/16/2018: Correspondence with client - AR - 0.20
4/18/2018: Correspondence with client - AR - 0.30
4/19/2018: Correspondence with client - AR - 0.40
4/20/2018: Correspondence with client - AR - 0.30
4/23/2018: Correspondence with client - AR - 0.20
7/11/2018: Correspondence - AR - 0.40
8/13/2018: Call with local counsel - AR - 0.30
8/31/2018: Correspondence with opposing counsel - AR - 0.10
9/27/2018: Review correspondence - AR - 0.10
10/1/2018: Phone call with client - AR - 0.10
10/9/2018: Correspondence with opposing counsel - AR - 0.10
10/16/2018: Correspondence with opposing counsel - AR - 0.10
10/23/2018: Plan and prepare to draft opposition brief - DJH - 0.95
10/24/2018: Consider arguments for opposition brief - DJH - 0.75
10/26/2018: Revise opposition brief - DJH - 2.45
10/31/2018: Call with David H - AR - 0.40
6/20/2019: Correspondence with opposing counsel - AR - 0.10
6/21/2019: Call with opposing counsel - AR - 0.20
9/18/2019: Correspondence with opposing counsel - AR - 0.10
9/19/2019: Correspondence with opposing counsel - AR - 0.10
10/14/2019: Review correspondence from opp. Counsel - AR - 0.10
10/14/2019: Review draft stipulation - AR - 0.10
10/17/2019: Draft/edit discovery requests - AR - 0.25
10/23/2019: Edit discovery requests - AR - 0.1
11/1/2019: Review stipulation - AR - 0.1
11/6/2019: Review order granting stipulation - AR - 0.1
11/10/2019: Call with client - AR - 1.4
11/11/2019: Correspondence with opposing counsel - AR - 0.10
11/12/2019: Review discovery responses - AR - 1.05
11/12/2019: Call with client - AR - 1.1
11/15/2019: Review/analyze/take notes expert disclosure - AR - 1.05
11/21/2019: Review and edit discovery responses - AR - 0.2
12/4/2019: Call with client - AR - 0.8
12/20/2019: Preparation of witness outlines - AR - 1.05
1/2/2020: Review motion for extension of time - AR - 0.1
1/6/2020: Review document production and analyze/comment - AR - 0.8
1/6/2020: Deposition witness outlines - AR - 0.6
1/20/2020: Deposition witness preparation - AR - 1.6
1/30/2020: Deposition preparation - AR - 0.75
2/6/2020: Deposition preparation - AR - 0.6
2/10/2020: Deposition preparation - AR - 0.6
5/27/2020: Begin drafting summary judgment motion - RL - 1.75
5/28/2020: Begin drafting statement of facts section - RL - 2.0
6/1/2020: Continue drafting and editing summary judgment motion - RL - 2.5
6/2/2020: Research to motion - RL - 1.0
6/3/2020: Motion writing - RL - 1.0
6/4/2020: Motion writing and research - RL - 1.5
6/5/2020: Motion writing, edits, research - RL - 2.0
6/7/2020: Draft/edit motion for summary judgment - AR - 1.8
6/7/2020: Research on MSJ - AR - 1.05
6/8/2020: Motion writing and finalization of facts section - RL - 2.0
6/8/2020: Draft/edit motion for summary judgment - AR - 0.65
6/9/2020: Draft/edit motion for summary judgment - AR - 0.3
6/10/2020: Draft/edit motion for summary judgment - AR - 1.25
6/11/2020: Edited brief and sent for filing - RL - 2.5
6/11/2020: Draft/edit motion for summary judgment - AR - 1.35
7/6/2020: Continued drafting summary judgment opposition motion and incorporating edits from team - RL - 3.0
7/7/2020: Continued drafting summary judgment opposition - RL - 2.5
7/8/2020: Edits to statement of facts and motion - RL - 1.5
7/9/2020: Research and edits to Motion - RL - 1.5
7/9/2020: Draft/edit respond to motion for summary judgment - AR - 1.75
7/10/2020: Research and edits to Motion - RL - 1.0
7/10/2020: Draft/edit response to motion for summary judgment - AR - 1.2
7/11/2020: Draft/edit response to motion for summary judgment - AR - 1.4
7/12/2020: Draft/edit response to motion for summary judgment - AR - 0.95
7/13/2020: Edited brief and send for filing - RL - 2.0
7/13/2020: Draft/edit response to motion for summary judgment - AR - 1.55
7/23/2020: Motion research - RL - 1.0
7/24/2020: Motion drafting - RL - 1.0
7/25/2020: Motion drafting and incorporating edits - RL - 1.5
7/27/2020: Draft/edit reply to motion for summary judgment - AR - 1.7
7/28/2020: Edited reply and sent for filing - RL - 1.5
7/28/2020: Draft/edit reply to motion for summary judgment - AR - 0.45
9/8/2020: Correspondence with opposing counsel - AR - 0.10
4/26/2021: Drafted Daubert motion - RL - 1.5
4/26/2021: Research/draft Daubert motion - AR - 1.25
4/27/2021: Draft/edit Daubert motion - AMC - 1.35
4/27/2021: Edits and finalization of Daubert motion - RL - 1.5
5/10/2021: MIL/Daubert research and draft - RL - 1.0
5/11/2021: Preparing MIL/Daubert motions - RL - 1.25
7/22/2021: Review settlement letter - AR - 0.20
6/22/2021: Correspondence with opposing counsel - AR - 0.20
7/13/2021: Call with client - AR - 0.5
11/4/2021: Call with client - AR - 0.5
12/17/2021: Correspondence with client - AR - 0.2
1/12/2022: Strategy call - AR - 0.3
1/12/2022: Strategy call, p-trial pleading - RL - 0.3
5/11/2022: Drafted trial brief for filing - RL - 1.0
5/11/2022: Trial strategy with trial team - RL - 0.5
5/12/2022: Final edits to trial brief and filing - RL - 0.5
5/12/2022: Trial strategy with trial team - RL - 1.0
5/12/2022: Trial strategy - AR - 0.65
5/24/2022: Drafting and editing motion for attorneys' fees - RL - 2.0
5/24/2022: Drafting motion for permanent injunction - RL - 1.0
5/25/2022: Drafting motion for attorneys' fees and costs - RL - 1.5
5/25/2022: Drafting motion for permanent injunction - RL - 1.0
5/26/2022: Drafting motion for attorneys' fees and costs and adding team's edits -RL - 2.0
5/26/2022: Drafting of motion for permanent injunction - RL - 1.5
5/27/2022: Drafting motion for attorneys' fees and costs - RL - 1.5
5/27/2022: Drafting motion for permanent injunction - RL - 2.0
5/28/2022: Motion for attorneys' fees - AR - 2.3
5/28/2022: Motion for injunction - AR - 0.95
5/29/2022: Motion for attorneys' fees - AR - 1.0
5/29/2022: Motion for injunction - AR 1.35
5/30/2022: Motion for attorneys' fees - AR - 0.7
5/30/2022: Motion for injunction - AR - 1.75
5/31/2022: Drafting and editing motion for attorneys' fees - RL - 2.5
5/31/2022: Drafting and editing motion for permanent injunction - RL - 2.0
5/31/2022: Research/edits to motion for injunctive relief - AR - 2.05
5/31/2022: Research/edits to motion for attorneys' fees - AR - 1.2
5/31/2022: Edit/revise motion for injunction - AMC - 0.65
5/31/2022: Edit/revise motion for attorneys' fees and costs - AMC - 0.6
5/31/2022: Edit/revise motion for attorneys' fees and costs - AMC - 1.15
Andrew Rozynski.
Many of Eisenberg & Baum's time entries for preparation of legal documents fail to describe at all the activities associated with preparing the document. For example, this and the next two entries state “Draft complaint,” but do not describe which activities associated with drafting the complaint were performed. Due to the lack of detailed description of the work performed, the Court will reduce this and all similar time entries by 50 percent.
David John Hommel.
The Court reduces several of DJH's time entries by 50 percent due to vagueness.
Reyna Lubin.
This time entry is for three hours of work. The Court reduces it by 50 percent to account for the lack of description of the “research.” (Doc. 128-1 at 26.)
Andrew M. Clark.
This entry is duplicative of an entry on 7/14/2021.
Accordingly, based on the above reductions, Mr. Rozynksi's billed time is reduced by 48.65 hours to 77.05 hours, Ms. Lubin's billed time is reduced by 59.65 hours to 173.75 hours, Mr. Hommel's billed time is reduced by 4.15 hours to 43.25 hours, and Mr. Clark's billed time is reduced by 3.75 hours to 7.15 hours. These reductions result in a total fee award of $98,972.50.
Upon applying the second part of the lodestar analysis, the Court finds that the amount of hours expended are reasonable and the final fee amount of $98,972.50 need not be adjusted. The invoiced tasks and amounts are reasonable considering the time and labor required to resolve this case, which included a three-day jury trial, travel to Arizona from New York, and post-trial briefing. Although the legal questions were not especially difficult, the facts of the case were novel and required legal skill. Plaintiff's attorneys clearly forewent other work by dedicating time to this case, which was performed on a contingency basis. The reputations and abilities of the attorneys involved, as well as the favorable outcome of a $100,000 damages award for Plaintiff, further warrant granting the requested attorneys' fees. Accordingly, the Court will award the fees requested by Eisenberg & Baum, LLP in the amount of $98,972.50.
For both firms, the Court places particular emphasis on (1) the significant amount of time Plaintiff's attorneys dedicated to litigating this case through a jury trial disposition; (2) the contingency nature of their representation; (3) their success at trial; and (4) their substantial experience litigating discrimination-related cases. These four factors strongly support granting the requested attorneys' fees as discussed herein.
III. Bill of Costs
Plaintiff seeks costs pursuant to Fed.R.Civ.P. 54(d), as defined by 28 U.S.C. § 1920. (Doc. 127 at 13-16.) Rule 54(d) and 28 U.S.C. § 1920 provides that a prevailing party may recover costs for:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.28 U.S.C. § 1920.
LRCiv 54.1(e) provides the following regarding taxable costs, in relevant part:
(1) Clerk's Fees and Service Fees. Clerk's fees (see 28 U.S.C. § 1920), and service fees, including private process servers' fees, are taxable. Fees for admission pro hac vice are not taxable.
(2) Fees Incident to Transcripts - Trial Transcripts. The cost of the originals of transcripts of trials or matters prior or subsequent to trial, is taxable at the rate authorized by the judicial conference when either requested by the Court, or prepared pursuant to stipulation. Mere acceptance by the Court of a copy does not constitute a request. Copies of transcripts for counsel's own use are not taxable in the absence of a special order of the Court.
(3) Deposition Costs. The reporter's charge for an original and copy of a stenographic transcript of a deposition is taxable if it was necessarily obtained for use in the case whether or not the deposition was actually
received into evidence or was taken solely for discovery purposes. The cost of obtaining a copy of a stenographic transcript of a deposition by parties in the case other than the one taking the deposition is also taxable on the same basis. The reasonable expenses of the deposition reporter and a notary presiding at the taking of the depositions are taxable, including travel and subsistence. Counsel fees and other expenses incurred in arranging for and attending a deposition are not taxable. Fees for the witness at the taking of a deposition are taxable at the same rate as for attendance at trial. The witness need not be under subpoena. A reasonable fee for a necessary interpreter at the taking of a deposition is taxable. Costs associated with a video recording are not taxable.
(5) Exemplification and Copies of Papers. The reasonable cost of copies of papers necessarily obtained from third-party records custodians is taxable. The reasonable cost of documentary exhibits admitted into evidence at hearing or trial is also taxable, including the provision of additional copies for the Court and opposing parties. The cost of copies submitted in lieu of originals because of the convenience of offering counsel or client are not taxable. All other copy costs are not taxable except by prior order of the Court.
Plaintiff filed a Bill of Costs that documents its costs for (1) clerk's fees and service fees, which includes the complaint filing fee and service costs, in the amount of $73.33; (2) trial transcripts of the testimony of Michael Mejia, Jennifer Johnson, Abby Figueroa, in the amount of $635.35, as well as John Young and Ricky Hardwick in the amount of $277.20, all of which Plaintiff identifies as related to case no. 19-cv-179, Southwest Fair Housing Counsel v. WG Campana del Rio; (3) deposition transcripts of Cindy Backes ($340.25), Tracy Colburn ($353.25), Gwen Westhafer ($264.40), Erica Hardwick ($499.75), Jay Young ($424.45), Maggie Johnson ($383.55), Michael Mejia ($1,039.65), and Nermana Pehlic ($380.55); and (4) copies of exhibits admitted into evidence ($395.46). (Doc. 126.)
Defendant filed a Motion in Opposition to Plaintiff's Application for Taxable Costs. (Doc. 137.) In opposition, Defendant argues that Plaintiff's requested costs should be reduced because, pursuant to Local Rule 54.1(e)(2), fees incident to trial transcripts are taxable only when requested by the Court or prepared pursuant to stipulation, and acceptance by the Court of transcripts does not constitute a request. (Id.) Defendant argues that the Court did not request or enter a special order regarding the trial transcripts of the testimony of Michael Mejia, Jennifer Johnson, Abby Figueroa, John Young, and Ricky Hardwick, and therefore those costs, in the amount of $912.55, are not taxable. (Id.)
Defendant further argues that Plaintiff's requested costs for deposition transcripts should be reduced because, pursuant to Local Rule 54.1(e)(3), the charge for obtaining a deposition transcript is taxable if the transcript “was necessarily obtained for use in the case.” (Id.) Defendant argues that, of the witnesses listed above, only Young, Hardwick, and Mejia testified in the instant case, and thus the costs for the remaining transcripts should be excluded in full. Defendant further argues that the costs for the deposition transcripts of those three witnesses be reduced to one-third of the requested costs, since those depositions were “inextricably tied up” in 19-cv-178, Southwest Fair Housing Council v. WG Chandler Villas, and 19-cv-179, Southwest Fair Housing Council v. WG Campana del Rio. (Id.)
Trial in 19-cv-178 is set to begin October 25, 2022. Trial in 19-cv-179 concluded on February 18, 2022 with a jury verdict in favor of Defendant.
Lastly, Defendant argues that Plaintiff's requested costs for obtaining copies of papers obtained from third-party records custodians and documentary exhibits, in the amount of $395.46, should be denied because, although Plaintiff provides an invoice from two weeks prior to trial for said copies (Doc. 126-2 at 21-22), it provides no evidence to indicate that those documents were submitted into evidence. (Id.)
Plaintiff responded to the Motion. (Doc. 141.) In response to Defendant's arguments regarding the costs associated with trial transcripts, Plaintiff concedes that the applicable Local Rule supports Defendant's position and therefore revokes its request for $912.55 for costs associated with trial transcripts. (Id. at 2.)
In response to Defendant's arguments regarding the costs associated with deposition transcripts, Plaintiff contends that the applicable Local Rule, as well as case law, supports concluding that (1) deposition costs that relate to other claims or cases are recoverable if they were relied upon in the instant case and (2) deposition costs are recoverable regardless of whether the depositions were introduced into evidence. (Id. at 3-4.) Specifically, Plaintiff contends that all the depositions for which it requests reimbursement of costs were “fully relevant and applicable” in this case, regardless of the other two lawsuits against Atria defendants. (Id.) Plaintiff further contends that the fact that it did not call all witnesses to testify or enter the depositions into evidence is irrelevant in determining the depositions' usefulness. (Id.) Because Plaintiff relied upon these depositions, including those it did not introduce into evidence and those of witnesses who did not testify, the Court agrees with Plaintiff that its deposition costs are fully taxable.
In response to Defendant's arguments regarding the costs for obtaining copies of documents to be used at trial, Plaintiff avers that the invoice it provided showing copying charges in the amount of $395.46 reflects the costs of copying the documents that it anticipated to use as trial exhibits. (Id. at 5.) To address Defendant's objection, Plaintiff provides a chart summarizing the copies of exhibits it actually used at trial, thereby reducing the amount it requests for copies to $300.59. (Id. at 6.)
Having reviewed the parties' arguments and Plaintiff's invoices and records, the Court will award Plaintiff the following costs for a total amount of $4,059.77: (1) $73.33 for clerk's fees and service fees; (2) $3,685.85 for deposition transcripts; and (3) $300.59 for copies of trial exhibits.
IV. Fees and Expenses
Plaintiff requests reimbursement of certain fees and expenses it accrued in litigating this case. In its initial Motion for Fees, Costs, and Expenses, Plaintiff requested a total amount of $14,140.25 for travel expenses, expert witnesses, and computerized legal research. (Doc. 127 at 13-16.) In response, Defendant objected to several of Plaintiff's requested expenses, including computerized legal research and unnecessary travel expenses. (Doc. 136 at 16-17.) In reply, Plaintiff reduced its requested expenses incurred for alcohol ($76.63) and computerized legal research ($1,709.98) for a total of $12,353.64. (Doc. 151 at 17.) Plaintiff's report of amended additional expenses reflects this amended total of $12,353.64 (Doc. 163-1 at 39.) These expenses are supported by receipts reflecting the costs for the expert witness and for trial, lodging, and food associated with trial. (Doc. 163-1 at 40-71.)
LRCiv 54.2(e) provides that a party shall “identify each related non-taxable expense with particularity” and “should attach copies of applicable invoices, receipts and/or disbursement instruments.” The Rule further provides that a “[f]ailure to itemize and verify costs” may result in their denial.
Having reviewed Plaintiff's reported expenses, the Court will award expenses as requested, except for Mr. Baum's flight from New York to Phoenix on February 8, 2020. Plaintiffs have not explained why that flight cost $1,225.80, while all other flights were between approximately $150.00 and $300.00. The Court will reduce the cost of Mr. Baum's February 8, 2020 flight to $250.00 to align with the costs of the remainder of the flights. This results in expenses in the amount of $11,331.47.
V. Motion to Stay
Defendant filed a Motion to Stay entry of judgment pending resolution of the Motions for Attorneys' Fees, Costs, and Expenses. (Doc. 158.) As this Order resolves the Motion underlying the Motion to Stay, the Motion to Stay will be denied as moot.
Accordingly, IT IS ORDERED that Plaintiff's Motion for Attorneys Fees (Doc. 127) is granted in part and denied in part as follows:
(1) Attorneys' fees in the amount of $152,469.54 are awarded to Richards & Moskowitz PLC and Baskin Richards PLC.
(2) Attorneys' fees in the amount of $98,972.50 are awarded to Eisenberg & Baum, LLP.
IT IS FURTHER ORDERED that Defendant's Motion Re: Bill of Costs (Doc. 137) is granted in part and denied in part. Costs are awarded to Plaintiff in the amount of $4,059.77.
IT IS FURTHER ORDERED that expenses are awarded to Plaintiff in the amount of $11,331.47.
IT IS FURTHER ORDERED that Defendant's Motion to Stay (Doc. 158) is denied as moot.