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RICHARD L HOLCOMB (HI Bar No. 9177)
BRIAN BRAZIER (HI Bar No. 9343) (Of Counsel)
Holcomb Law, A Limited Liability Law Corporation
1136 Union Mall, Suite 808
Honolulu, HI 96813
Telephone: (808) 545-4040
Facsimile: (808) 356-1954
Email: rholcomblaw@live.com
ALAN BECK (HI Bar No. 9145)
Attorney at Law
4780 Governor Drive
San Diego, California 92122
Telephone: (619) 971-0414
Email: ngord2000@yahoo.com
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Hawaii Defense Foundation,
Christopher Baker,
and Derek Scammon
Plaintiffs,
vs.
City and County of Honolulu;
Andrew Lum, in his personal and
official capacity;
John Does 1-10 in their personal and
official capacities.
Defendants.
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CASE NO. CV 12-00469JMS-RLP
PLAINTIFFS OBJECTIONS TO THE FINDINGS AND RECOMMENDATION
TO GRANT IN PART AND DENY IN
PART PLAINTIFFS MOTION FOR ATTORNEYS FEES [Doc. 64]; DECLARATION OF RICHARD L.
HOLCOMB; EXHIBITS ONE
THROUGH THREE; CERTIFICATE
OF SERVICE
HEARING:
Date: ________________________
Time: ________________________
Judge: Honorable J. Michael Seabright
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TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Calculation of the Reasonable Hourly Rate . . . . . . . . . 2
B. 25% Meat-Axe Reduction . . . . . . . . . . . . . . . . . . . . . . . 23
C. Task-based limitations . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D. Duplicative Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
TABLE OF AUTHORITIES
Reported Cases:
Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997) . . . . . . . . . . . . . . . . . 21
Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) . . . . . . . . . . . . 15
Bell v. Clackamas Cnty., 341 F.3d 858 (9th Cir. 2003) . . . . . . . . . . . 14
Blum v. Stenson, 465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008) . . . . 4, 12, 22,
28
Casey v. City of Cabool, Missouri, 12 F.3d 799 (8th Cir. 1993) . . . . . 21
Christensen v. Stevedoring Servs. of Am.,
557 F.3d 1049 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 18,
19
Costa v. Comm'r of Soc. Sec. Admin.,
690 F.3d 1132 (9th Cir.2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) . . . . . . . . . . . . . . 13
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Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992) . . . . . . . . . . . . . 4, 12, 14,
20, 28
HonoluluTraffic.com, et. al. v. Federal Transit Admin., et. al.,
742 F.3d 1222 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
In re Smith, 586 F.3d 1169 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 20, 23
Johnson v. Georgia Highway Exp, Inc.,
488 F.2d 714 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Missouri v. Jenkins by Agvei, 491 U.S. 274 (1989) . . . . . . . . . . . . . . . 22
Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996) . . . . . . . . 13
Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) . . . . . . 6, 15, 19,
23, 24, 26,
27
Prison Legal News v. Schwarznegger,
608 F.3d 446 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 13
Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001) . . . . . . . . . . . . . . . . 20, 23
Student Pub. Interest Research Group of N.J.
v. AT &T Bell Labs., 842 F.2d 1436 (3d Cir. 1988) . . . . . . . . . . . . . . 18
Van Skike v. Dir., Office of Workers Comp. Programs, 557 F.3d 1041 (9
th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Unreported Cases:
Aloha Airlines, Inc. v. Mesa Air Grp., Inc.,
07-00007 DAEKSC, 2007 WL 2320672
(D. Haw. Aug. 10, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Deocampo v. Potts, CIV. 2:06-1283 WBS,
2014 WL 788429 (E.D. Cal. Feb. 25, 2014) . . . . . . . . . . . . . . . . . . . 28-29
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Harris v. Trash Man, LLC,
CIV. 12-00169 HG-KSC,
2013 WL 1932715 (D. Haw. Apr. 16, 2013) . . . . . . . . . . . . . . . . . . . 2, 4, 17
Hohlbein v. Utah Land Res., LLC,
467 F. Appx 715 (9th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Jo.R. ex rel. C.R. v. Garden Grove Unified Sch. Dist.,
12-5446, 2013 wl 6654048 (9th Cir. Dec. 18, 2013) . . . . . . . . . . . . . . 19
Ko Olina Dev., LLC v. Centex Homes,
CIV. 09-00272DAE-LEK,
2010 WL 447451 (D. Haw. Feb. 9, 2010) . . . . . . . . . . . . . . . . . . . . . 11
Mancini v. Dan P. Plute, Inc., 358 F. App'x 886 (9th Cir. 2009) . . . . 18
Marquez v. Harper Sch. Dist. No. 66,
546 F. Appx 659 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 26
Olson v. Lui, CIV. 10-00691 ACK,
2012 WL 3686682 (D. Haw. Aug. 27, 2012) (attached) . . . . . . . . . . . 16-17
Statutes and other authority
Pub. L. No. 101-194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Executive Order No. 13655 (Dec. 23, 2013) . . . . . . . . . . . . . . . . . . . . . 15
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PLAINTIFFS OBJECTIONS TO THE FINDINGS AND RECOMMENDATION
TO GRANT IN PART AND DENY IN PART
PLAINTIFFS MOTION FOR ATTORNEYS FEES [Doc. 64]
COME NOW Plaintiffs Hawaii Defense Foundation, Christopher Baker, and
Derek Scammon, by and through the undersigned counsel, and pursuant to U.S.C.
636(b)(1),1 Rules 54(d)(2)(D) (treating motions for attorneys fees as pretrial
matters) and 72(b)(2) of the Federal Rules of Civil Procedure, and Rules 54.3(h)
(referring to Fed.R.Civ.P., Rule 54(d)), and 74.2 or 74.3 of the Local Rules of this
Court, and object to the Findings and Recommendation to Grant in Part and Deny
in Part Plaintiffs Motion for Attorneys Fees entered April 22, 2014 as Document
64 (hereinafter referred to as Recommendation). Plaintiffs request de novo
review as required by Rule 72(b)(3) of the Federal Rules of Civil Procedure and/or
Local Rule 74.2, that the Recommendation be modified pursuant to the following
objections, and compensation for. Moreover, should this Court choose to receive
further evidence, see Fed.R.Civ.P., Rule 72(b)(3) and/or Local Rule 74.2, Plaintiff
requests a hearing and that the Court provide guidance as to the nature of the
further evidence that would assist the Court in making its determination.
1 Counsel notes that footnote 1 of the Magistrates Report and Recommendation
cites 28 U.S.C. 636(b)(1)(B). However, the applicable provision appears after
subsection (b)(1)(C) and is not subdivided further than (b)(1).
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I. INTRODUCTION
Plaintiffs object to the magistrates: hourly rate imposed for Attorneys
Holcomb, Brazier and Beck, [Doc. 64, pp. 9-16]; the 25% meat axe reduction for
billing quarter-hour increments, [Doc. 64, pp. 22-23]; the magistrates task-based
billing limitation, [Doc. 64, p. 18]; and, the reduction for duplicative time, [Doc.
64, p. 20]; and,. Although the last two reductions are somewhat nominal, these
remaining reductions primarily account for the vast reduction in the requested total
award of $64,690.29 to $21,071.50, a 67.43% reduction which is not reasonable or
fair and does not encourage competent counsel to accept these types of cases in
Honolulu.
A. Calculation of the Reasonable Hourly Rate
Plaintiffs requested fees relying on the Laffey Matrix as evidence of a
baseline standard that would reflect the true market value of legal services. [Doc.
56-1, p. 31] In support of this request, Plaintiffs presented an extensive survey of
this Courts prior awards for years, beginning with Harris v. Trashman, LLC, Civ.
12-00169 HG-KSC, 2013 WL 1932715 (D. Haw. Apr. 16, 2013)2 where the
Magistrate correctly stated that [n]ot only are Hawaiis prevailing market rates
considerably lower than those in California but the rates awarded in this district
are lower still. [Doc. 56-1, pp. 13-24] (emphasis added).
2 Unless otherwise specified, unreported cases were attached as an appendix to the
Motion, Docs. 56-13 56-55.
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From this extensive analysis, Plaintiffs observed: this Court notoriously
awards fees far below any reasonable rate on the mainland and/or Hawaii, [Doc.
56-1, pp. 13-15]; these reductions amount to a judicially imposed de facto ceiling
on attorneys fees, [Doc. 56-1, pp. 21]; that empirical data presented by a number
of attorneys (including numerous declarations, publications of big firm rates in
the Pacific Business News, and Plaintiffs submission showing that the City pays
its independent counsel rates in line with Plaintiffs request [Doc. 58]) are
universally rejected in favor of the Courts knowledge of prevailing rates, [Doc.
56-1, pp. 21-23, 30]; and that these extraordinarily low rates have not consistently
increased despite inflation or any other market considerations. [Doc. 56-1, pp. 23-
24, 31]
Plaintiffs concluded that the extraordinarily low but persistently awarded
rates are particularly troubling in Honolulu where the cost of living is surpassed
only by Manhattan,3 and that the purpose of 42 U.S.C. 1988 is not promoted by
the imposition of these rates. [Doc. 56-1, pp. 24-28] Had this Districts awarded
rates continued to increase for the past 8-10 years, the rates would have risen
3 The cost of actually living in Honolulu is likely inflated beyond what is reflected
in the Cost of Living formula. See Collective Exhibit One, Civil Beat Price of Paradise series.
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consistent with the Laffey Matrix.4 [Doc. 56-1, pp. 31-32] Plaintiffs also observed
that this was an extremely novel case, counsel assumed an inordinate risk in the
expense and complexity of litigation when taking the case, and that Plaintiffs and
counsel were subjected to public ridicule by bringing this case.5
Defendants responded by summarily reviewing Attorneys Holcomb, Brazier,
and Becks qualifications and arbitrarily determining that $180, $175, and $125
were reasonable hourly rates for each, respectively. [Doc. 62, pp. 9-11] Citing
Harris v. Trash Man, LLC, supra., Defendants argued that this Court had rejected
Plaintiffs arguments. [Doc. 62, p. 11] Defendants also argued that Plaintiffs had
presented no evidence of the rates,6 and that this Courts familiar[ity] with the
prevailing rates warranted the rates proposed by Defendants. [Doc. 62, pp. 11-13]
4 Notably, each of Plaintiffs attorneys was awarded far less than each would have
expected had they had comparable experience in 2004 and 2005.
5 Despite these factors, Plaintiffs did not and are not requesting a lodestar
multiplier.
6 Defendants completely ignored the various Declarations and Pacific Business
News articles presented in the prior cases cited in and attached to Plaintiffs brief. These past decisions discussing the evidence presented in those motions for fees
and the rates awarded are proper evidence. Gates v. Deukmejian, 987 F.2d 1392,
1397-98 (9th Cir. 1992). Defendants also understandably completely ignored
Plaintiffs evidence showing that the City pays its own independent counsel rates consistent with what Plaintiffs requested, [Doc. 58] and did not assert that rail
litigation was more complex than the instant litigation. Plaintiffs presume this was deliberate as the City will not want to pay opposing counsel in rail cases any
higher rates based on a lodestar multiplier.
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The magistrate determined that Attorneys Holcomb, Brazier, and Beck
should be awarded $185, $175 and $150, respectively. [Doc. 64, p. 16] The
magistrate stated that Plaintiffs was an assert[ion] that Laffey matrix rates should
be applied for all counsel.7 Based on his aware[ness] of previous awards, the
magistrate found that Plaintiffs analysis only confirmed that this Court
consistently applies the correct standard and that this Court had never awarded
rates as high as those requested by Plaintiffs. [Doc. 64, p. 11]
The Recommendation ignores each of Plaintiffs arguments derived from the
analysis of prior awards. [Doc. 64, pp. 11-12] Plaintiffs arguments should have
been considered and the magistrate should have articulated his reliance on or
rejection of the facts presented by Plaintiffs in support of those arguments. See
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). Moreover,
the past requests, Declarations, and evidence from those opinions (which included
7 While it is true that Plaintiffs requested the rates listed on the Laffey matrix,
Plaintiffs did not advocate blind adherence to the Laffey matrix. Instead, it was
offered as evidence of a fair market rate. [Doc. 56-1, pp. 31-32] Moreover, it is
true that the Ninth Circuit questioned whether Washington D.C. rates should apply in other districts. [Doc. 64, p. 10] However, in that case, it was the
government who urged adherence to the Laffey matrix plus a 9% cost of living
adjustment to account for the expense of San Francisco compared to Washington
D.C. instead of the actual San Francisco rates which were much higher. Prison
Legal News v. Schwarznegger, 608 F.3d 446, 454 (9th Cir. 2010). The Ninth
Circuit has never disparaged the use of the matrix to suggest what rate might be
necessary to promote the purpose of 42 U.S.C. 1988.
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Pacific Business News articles showing higher rates) were ignored.8 Thus, relying
solely on another of this Courts cases where this Court denied having held the
line, the magistrate attempted to distinguish this case and/or the previous cited
cases from Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) by
finding that because each attorney is assigned a different rate based on experience,
this Court does not hold the line. [Doc. 64, p. 12] Once again, the Courts
omniscience overrode all contradicting evidence.
The magistrate then specifically found that Plaintiffs reliance on Hawaiis
high cost of living as a factor in measuring hourly rates is misplaced. [Doc. 64, -.
12] Although Plaintiffs can find no remote indication from this Recommendation,
any previous awards, or Defendants arguments that the Court or the government
disagrees that any person living and conducting business in Hawaii is extremely
burdened by these extraordinary costs as well as the various imposing taxes, see
Collective Exhibit One, the magistrate suggests that because Plaintiffs are
requesting a rate that is more than the Court has previously awarded, Plaintiffs
would somehow enjoy a windfall if the requested rates were awarded. [See Doc.
64, p. 12] And, while Plaintiffs agree that counsel is not entitled to a windfall, the
8 Plaintiffs also presented compelling evidence definitively demonstrating that
even the City does not believe the awarded rates are reasonable. Again, the City
pays the least experienced associates at private Honolulu law firms $295 per hour.
[Doc. 58] This comparison was rejected as somehow completely inapt, [Doc. 64, p. 14], and is discussed below.
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Recommendation ignores the fact that the entire purpose of 42 U.S.C. 1988 is to
attract competent counsel to precisely this type of case. [See Doc. 64, p. 12]
Clearly, the cost of living is a relevant consideration.
In justifying the drastic reduction, the magistrate quotes extensively a 2009
article from Pacific Business News entitled Mainland-Hawaii Salary Gap Grows.
Plaintiffs have attached this article as Exhibit Two.
Although it cannot be gleaned from the Recommendation, the numbers in
that article do not come close to supporting the drastic reductions in Plaintiffs
attorneys fee rates. The article is now five years old. And, the article states [t]he
legal profession in Honolulu pays an average of $78,270 a year, while the national
average is $92,268, about 15 percent less, although thats a slight improvement
over 2005, when the difference was 17 percent. It is unclear whether that gap
has increased or decreased in the past five years. And, the gap is actually less than
15% as the article goes on to state Honolulu attorneys make an average of
$85,092 and on the Neighbor Islands they make even less, about $76,000,
according to the Labor Department. Thus, the first statement clearly included
non-attorney legal profession[als]. Nevertheless, had Plaintiffs attorneys been
awarded a rate 15% less than that requested, this objection would not have been
raised. Yet, the requested rates were reduced far below the requested rates. The
reductions approach 50%.
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Moreover, Mr. Slovin did not say that he or any other partner at Goodsill
billed $250 per hour.9 That figure was based entirely on unspecified PBN
research research that is inconsistent with the magazines prior publications in
which the big firms disclosed some rates and are discussed in the various
opinions cited in the Plaintiffs Motion. And, the phraseology of the statement,
i.e., Law firm partners on the Mainland charge between $300 and $1,000 an hour,
while most of the bigger firms in Hawaii charge closer to $250, according to PBN
research, begs the question whether PBN research indicates that is a minimal,
maximum, mean, weighted average, guesstimate, or other approximation of the
rate. It also does not specify what kinds of cases resulted in the data that was used
to somehow extrapolate the result of the research.
Obviously, such unspecified research should not be relied upon to set the
market rate in fee shifting federal cases, particularly civil rights cases. And,
even if it were properly considered, none of Plaintiffs attorneys received a rate
9 Even if Mr. Slovin had said that Goodsill partners billed $250 per hour, an astute
reader would wonder what possible motivation could have prompted such a
representation, which is contrary to the evidence submitted in numerous cases and
cited by various Plaintiffs, including in this case. The big firms certainly have an interest in excluding mainland firms from their market. The big firms clearly have an interest in justifying the somewhat lower associate salaries, despite billing
them at $295 per hour. Moreover, the big firms often have several big clients which offer stability and consistent, almost guaranteed income which might justify
a lower rate. Further, even if some partners do bill at $250 per hour, those partners
realize personal financial gain from the time billed by associates which, according
to the article, the partners pay 15% less than comparable mainland associates.
Plaintiffs attorneys in this case enjoy no such gains.
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anywhere close to the purported partner rate. Must a lawyer practice three, five,
seven or thirty years before he or she is considered a partner? The analogy in the
Recommendation leaves open the question of why these solo practitioners should
not be treated as a partner. It is impermissible to assign a lower rate to a solo
practitioner just because the solo practitioner must rely largely on lead counsel.
Moreno v. City of Sacramento, 534 F.3d 1106, 1114-15 (9th Cir. 2008). Why
should solo practitioners be penalized when they handle marketing, administration,
and other necessary but less fulfilling tasks (which partners can dump on their
underlings or extensive legal staff) in addition to practicing law which solely
accounts for billable fees?
Mr. Holcombs Declaration sets forth a number of significant legal victories
and publications. [Doc. 56-2] Even in the approximate five years of practice in
Hawaii, Mr. Holcomb has won no less than two Hawaii appellate cases that had or
will continue to have far-reaching statewide impact. Most recently, with the able
assistance of Mr. Beck, counsel won (at least for the time being) the somewhat
related case styled Christopher Baker v. Louis Kealoha, et. al., No. 12-16258, __
Fed.Appx. __ , 2014 wl 1087765 (9th Cir. Mar. 20, 2014) in the Ninth Circuit
Court of Appeals. This case will likely allow Hawaiis citizens to fully enjoy their
rights guaranteed by the Second Amendment rights that have been deprived for
decades. It is doubtful that all or even most partners, even those who have
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practiced for significantly more time than the average partner, have achieved
victories with such significance. Certainly, none could have won Baker, because
no big firm would take his case. [Doc. 56-5] Moreover, Mr. Brazier and Mr.
Holcomb share a case that is billed hourly by a paying client at $250 per hour.
[Doc. 56-3] While Plaintiffs believe that their attorneys deserve more, this
purported partner rate was not even adopted as a baseline for Mr. Holcomb.
Nevertheless, the magistrate contends that [t]his [drastic reduction in rates]
has been accepted as the price of paradise. [Doc. 64, p. 13] Yet, the article does
not suggest acceptance. Instead, it addresses Hawaiis businesses struggle in
recruiting and maintaining competent employees at lower salaries. Exhibit Two.
Yet, 42 U.S.C. 1988 is designed to attract counsel. And, the price of statehood is
the promotion of congressional intent rendering this so-called price of paradise
too high. Clearly the cost of living and doing business is a very relevant factor in
determining a reasonable rate and should be reflected in a market rate. See Blum v.
Stenson, 465 U.S. 886, 892-93 (1984) (rejecting Solicitor Generals argument that
[b]ecause market rates incorporate operating expenses non-profit organizations
should not receive market rates which also include an element of profit
unnecessary to attract nonprofit counsel).
Further, the magistrate rejected Plaintiffs evidence showing that the City
pays its own independent lawyers from Honolulu law firms between $295 and
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$495 per hour. In other words, the bottom-rung associate at those firms are billed
at $295 per hour, despite their obvious inexperience.10
Those attorneys are not any
more experienced in rail cases or any other cases than Plaintiffs counsel. The
requested rates were within or even less than those rates. Despite the Defendants
having deliberately declined to object to or explain this evidence, the magistrate
found that Plaintiffs comparison was inapt, implying that this case was less
complex. [Doc. 64, p. 14] The magistrate simply implied that this case was less
complex, which does not suffice to explain the magnitude of the reductions.
Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 113637 (9th Cir.2012).
Nevertheless, Plaintiffs object to this finding for three reasons.
First, Defendants did not raise it. The party opposing the fee application
has a burden of rebuttal that requires submission of evidence to the district court
10
Kobayashi, Sugita and Godas website reveals that they have eighteen partners and ten associates. The partners range in experience from 49 years (Mr.
Kobayashi) to 7 years (Jonathan Moore, who was licensed in Louisiana in 2007).
The associates range in experience from 0 to 7 to years experience. Notably, these attorneys were awarded fees in Ko Olina Development, LLC v. Centex Homes,
2011 WL 1235548 (March 29, 2011), cited in and attached to Plaintiffs Motion. It is clear from that opinion that, not only did the attorneys strategically petition
this Court for rates less than those they actually charge, but that this Court reduced
their requested fees further, imposing what appears to be the $350 senior attorney cap on Mr. Kobayashi.
Due to the structure of Carlsmith Balls website, it is much more difficult (and therefore time-consuming) to evaluate the most and least experienced partners and
associates. However, there appear to be 77 attorneys employed at Carlsmith Ball
with widely diverse levels of experience.
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challenging the accuracy and reasonableness of the ... facts asserted by the
prevailing party in its submitted affidavits. Camacho v. Bridgeport Fin., Inc., 523
F.3d 973, 980 (9th Cir. 2008) (quoting Gates, 987 F.2d at 139798).
Second, while recognizing that civil rights awards should be governed by
the same standards which prevail in other types of equally complex Federal
litigation, the United States Supreme Court specifically likened civil rights cases
in complexity to antitrust cases and directed those awards not be reduced
because the rights involved may be nonpecuniary in nature. Blum, 465 U.S. at
893. Moreover, like the rail cases, Plaintiffs in this case were required to
maneuver the procedural requirements of this Court and were entitled to and did
seek extraordinary injunctive relief, further complicating the case. The lack of
duration of the case, which certainly was not foreseen by counsel when taking the
case, was a product of the strength of the merits of the case rather than a lack of
complexity. This case involved not only issues of first impression pertaining to the
First Amendment (an area of law that is complex even without any extraneous
factors), but also highly complex technological issues which would have
complicated this case exponentially had the Court not admonished the City the day
after the complaint was filed. These facts should undoubtedly be considered and
counsels risk in taking the case should not be minimized. Crawford v. Astrue, 586
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F.3d 1142, 1152-53 (9th Cir. 2009). The case should not be held any less complex
despite the benefit of hindsight that the parties and the Court now enjoy.
Third, the Hawaii Supreme Court did not find the rail case in which it
awarded fees any more complex than other cases. See Kaleikini v. Yoshioka, et.
al., No. SCAP-11-0000611 (Haw. May 2, 2013) (opinion attached as Exhibit
Three). And, insofar as rail cases might be more complex,11
the complexity is
subsumed in the lodestar calculation because attorneys in those cases will
necessarily bill more hours. This effect on the lodestar was specifically noted in
the Recommendation [Doc. 64, p. 8 n. 3] (quoting Morales v. City of San Rafael,
96 F.3d 359, 364 n. 9 (9th Cir. 1996)); see also Prison Legal News, 608 F.3d at
454-55 (determination of rates not limited to reviewing a specific type of case).
And, this Court should not isolate civil rights cases from other types of cases when
determining the appropriate market rates. Christensen v. Stevedoring Servs. of
Am., 557 F.3d 1049, 1053-54 (9th Cir. 2009) (rejecting Fourth Circuits definition
of relevant community which looked solely to other LHWCA cases in the same
region in favor of a more broad definition).
11
The issues litigated appear to be no more than whether the rail project complies
with its own rules and/or federal law. Exhibit Three; See HonoluluTraffic.com,
et. al. v. Federal Transit Admin., et. al., 742 F.3d 1222 (9th Cir. 2014). Yet,
insofar as the magistrate implicitly found that the Citys private lawyers are somehow burdened beyond the burdens faced by Plaintiffs counsel in this case, the undersigned observes that two federal agencies shared the defense burden in
HonoluluTraffic.com. Id. And, the State shared the defense burden in Kaleikini.
Exhibit Three.
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Plaintiffs also observed that the awarded rates have only increased
nominally over the past ten years. [Doc. 56-1, pp. 23-24, 31, 32] Yet, inflation
alone should result in a steady increase in the awarded fees. See Bell v. Clackamas
Cnty., 341 F.3d 858, 868-69 (9th Cir. 2003) (Clearly, compensation received
several years after the services were rendered as it frequently is in complex civil
rights litigation is not equivalent to the same dollar amount received reasonably
promptly as the legal services are performed . . . [w]e agree, therefore, that an
appropriate adjustment for delay in payment whether by the application of
current rates or otherwise is within the contemplation of the statute.) (emphasis
added); Gates, 987 F.2d at 1406 (recognizing an increase during the course of
litigation). Economic conditions have approved since the Great Recession. Cost
of living has continued to rise. Exhibit One.
The failure to raise the rates due to inflation and other market influences
does not attract competent counsel to litigate these cases in Honolulu, despite the
intent of 42 U.S.C. 1988 and the fact that rates in other jurisdictions have
increased as have salaries in other professions.12
As discussed in Moreno:
12
Federal judges, for example, received an approximate 14% raise in 2014
following a finding that, pursuant to the Ethics Reform Act of 1989, their salaries
should have increased each year despite the absence of increases between 2009 and
2014. Pub. L. No. 101-194; Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012),
cert. denied, 133 S.Ct. 1997; Barker v. United States, No. 12-826 (Fed. Cl. filed
Nov. 30, 2012). In addition, federal judges will receive an additional 1% cost of
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One problem with any such policy is that it becomes difficult to
revise over time, as economic conditions change; here the rate
apparently hadn't changed for 10 years, and even a $50 increase in the
hourly rate was considered a big step ... for the court generally. Unless carefully administered and updated, any such policy becomes a
strait-jacket. More fundamentally, such a policyno matter how well intentioned or administeredis inconsistent with the methodology for awarding fees that the Supreme Court and our court has adopted. The
district court's function is to award fees that reflect economic
conditions in the district; it is not to hold the line at a particular rate, or to resist a rate because it would be a big step. If the lodestar leads to an hourly rate that is higher than past practice, the court must award
that rate without regard to any contrary practice.
Moreno, 534 F.3d at 1115.
This stagnation of the awarded fees was not discussed by the magistrate. No
explanation was given. And, offering only nominal (if any) adjustments for years
results in a fee that does not reflect a fair market rate. Plaintiffs object.
Other than simply denying Plaintiffs contention that the rates awarded by
this Court appear to set a cap on attorneys fees, the magistrate made no effort to
discredit Plaintiffs argument. [Doc. 64, pp. 11-12] Yet, Plaintiffs presented an
exhaustive survey of prior awards that suggest the imposition of a de facto cap,
whether intentional or not. [Doc. 56-1, pp. 13-24] This evidence was simply
living adjustment every year pursuant to Executive Order No. 13655 (Dec. 23,
2013). Historically, judges have received increases each year with few exceptions,
the longest period being 1993-1997 (a time when apparently the 1989 Act also
intended unrealized adjustments). See Beer, supra. Had awarded rates increased
at the intended rate of federal judges salaries, Plaintiffs would not have objected
to the awarded rate.
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dismissed as proof that this Court has consistently applied the correct standard of
awarding attorneys fees while also recognizing that this Court has never awarded
fees as high as those requested. [Doc. 64, p. 11] The magistrate did not address
the consistent and drastic fee reductions [Doc. 56-1, p. 13-15] or the maximum
hourly rate this Court has awarded for senior attorneys.13 Id. at 15. These rates
are universally established by elevating this Courts knowledge of the prevailing
rate over empirical data, including published rates, declarations, and the requests
of attorneys. Id. at 15-23. Indeed, as discussed above, the magistrate rejected
Plaintiffs proof showing that the City pays its own attorneys rates consistent with
13
Counsel has since found a departure from this cap imposed on senior attorneys.
Paul Alston who has practiced for 40 years and has an AV rating from Martindale-
Hubbell has been awarded $450 at least three times. Olson v. Lui, CIV. 10-00691
ACK, 2012 WL 3686682 at *4 (D. Haw. Aug. 27, 2012) (unpublished) (attached).
However, in that case, the magistrate had specifically imposed the cap on senior
attorneys:
As an initial matter, the Court observes that the Magistrate Judge's
reliance upon Blake v. Nishimura, Civ. No. 0800281 LEK, 2010 WL 1372420, at *7 (D.Haw. Mar. 31, 2010), wherein the court found that
$350 was a reasonable hourly rate for Mr. Alston and was the highest hourly rate awarded in any case and within the range of rates for similarly situated law partners, must be viewed in light of the two
more recent cases wherein Hawaii courts awarded Mr. Alston a fee
much higher than the discounted $450 rate that he has requested.
Id. Yet, noting that Nishimura was a civil rights case unlike Olson, Senior Judge Kay rejected the cap in that case, implying that the cap remains in full effect in
civil rights cases. Id. Clearly that was improper and is further evidence of towing the line. See Christensen, 557 F.3d at 1053-54. The $450 awarded rate was also, nonetheless, a discounted rate from the $675 per hour that Mr. Alston actually
charges. Id. at n. 5.
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or higher than the rates requested by Plaintiffs attorneys. The evidence of this
cap is overwhelming. See Harris, supra. ([n]ot only are Hawaiis prevailing
market rates considerably lower than those in California but the rates awarded in
this district are lower still.) (emphasis added); Olson, supra., (rejecting $350
highest hourly rate awarded in a case that was not a civil rights case); See Aloha
Airlines, Inc. v. Mesa Air Grp., Inc., 07-00007 DAEKSC, 2007 WL 2320672 (D.
Haw. Aug. 10, 2007) (unpublished).
Empirical evidence should not be universally discarded each and every time
it is brought to this Courts attention. Once the prevailing attorney offers
evidence of a market rate, there is a presumption of reasonableness, and the court
may not reduce that rate without explaining the basis for its decision. Mancini v.
Dan P. Plute, Inc., 358 F. App'x 886, 889 (9th Cir. 2009) (unpublished) (attached)
(citations omitted). The only explanation ever offered by this Court in any of these
cases is the Courts knowledge of the prevailing rate. In the Ninth Circuit, an
award of attorneys fees based solely on past fee awards is considered
unreasonable, because holding the line at a flat rate does not define the relevant
market rate. Mancini, 358 F. Appx at 889-90 (citing Christensen, 557 F.3d at
1053; Moreno, 534 F.3d at 1115); compare Marquez v. Harper Sch. Dist. No. 66,
546 F. Appx 659 (9th Cir. 2013) (unpublished) (attached) (suggestion that court
may have held the line by using the 2007 Oregon State Bar Survey as a
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baseline, which is also impermissible). This is because [a]rbitrarily holding the
line at past court-generated fee awards does not respect the congressional intent
animating fee-shifting statutes. Van Skike v. Dir., Office of Workers Comp.
Programs, 557 F.3d 1041, 1046-47 (9th Cir. 2009) (citing Student Pub. Interest
Research Group of N.J. v. AT &T Bell Labs., 842 F.2d 1436, 1446 (3d Cir. 1988)
(Courts that try to establish public interest market rates by looking to the going
rate for public interest work therefore do not examine an independently operating
market governed by supply and demand, but rather recast fee awards made by
previous courts into market rates ... [thereby] ... perpetuat[ing] a court-established
rate as a market when that rate in fact bears no necessary relationship to the
underlying purpose of relying on the marketplace: to calculate a reasonable fee
sufficient to attract competent counsel.).14 Plaintiffs maintain that these prior
awards and the present award demonstrate and are derived from an impermissible
de facto cap on attorneys fees.
Finally, the magistrate attributed the 35 page memorandum, a violation of
Local Rule 7.5, as reflecting Plaintiffs counsels lack of skill and experience.
14
Plaintiffs recognize that some of the cases on which they rely involved one rate
that was set for attorneys of varying levels of experience. see Moreno, 534 F.3d at
1115; Christensen, 557 F.3d 1049. However, the fact that this Court awards
different de facto caps for attorneys with varying experience makes no difference.
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[Doc. 64, p. 16] Accordingly, the magistrate factored this violation into his
determination of appropriate hourly rates. Id.
Counsel has filed a number of documents in complex civil rights litigation in
this Court. With the exception of a complaint that was unduly called prolix,
counsel has never heard any complaints about the quality of the work submitted.
This violation was the result of negligence as counsel misremembered the page
limitation as being 35 pages rather than 30. If this mistake, which was akin to a
typo, warrants any deflation in the awarded rates, it should be nominal at best. See
Jo.R. ex rel. C.R. v. Garden Grove Unified Sch. Dist., 12-5446, 2013 wl 6654048
(9th Cir. Dec. 18, 2013) (unpublished) (attached) (finding abuse of discretion for
denying fees because counsel attempted to violate page limitations by including
much of the discussion in single-spaced footnotes).
However, it is unclear from this decision how much weight the magistrate
attributed to the mistake. It is also unclear whether Mr. Brazier and Mr. Beck
received rate reductions due to the mistake. The reduction should have been
limited to Mr. Holcomb, alone, as Mr. Holcomb drafted the memorandum and was,
therefore, solely responsible for the mistake. [See Doc. 64, p. 23] It is improper to
reduce the rate without answering such rudimentary questions. See In re Smith,
586 F.3d 1169, 1174 (9th Cir. 2009) (quoting Gates, 987 F.2d at 1399 (citations
omitted), and Moreno, 534 F.3d at 1111); Sorenson v. Mink, 239 F.3d 1140, 1146
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(9th Cir. 2001) (the magistrate should explain[ ] the relationship between the
time improperly billed and the size of the [fee] reduction.). A reviewing Court is
unable to determine whether this mistake resulted in the almost 50% reduction
from Mr. Holcombs requested rate or, perhaps the almost 30% reduction Mr.
Holcomb received from the purported partner rate. It is also impossible to
determine whether or to what extent Mr. Holcombs mistake operated to reduce the
requested rates of Mr. Brazier and Mr. Beck.
Plaintiffs are not seeking a windfall. Plaintiffs are seeking a rate that
would not discourage attorneys from continuing to represent citizens whose rights
have been violated particularly those who have not sustained significant
monetary damages and are, accordingly, underrepresented in Hawaii.15
Attorneys
Holcomb, Brazier and Beck have several such cases pending before this Court.
However, this business model cannot be sustained at the awarded rates. In order to
receive fair pay, counsel is left with the options of moving to California,
abandoning personal morals in order to defend the actions of municipalities or
businesses against private and often vulnerable citizens, or to join a big firm
where the same morals would be jeopardized. Such is not the intent or design of
Section 1988. And, the magistrate did not address Plaintiffs observation that
15
The magistrate does not deny Plaintiffs contention that this Court is rarely confronted with First Amendment litigation, particularly where no damages are at
stake. [Doc. 56-1, p. 13]
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Hawaii is not attracting competent mainland lawyers, despite the small market
the magistrate relies on in the drastic reduction of the requested rates. [Doc. 56-1,
pp. 13-15, 32-33] Although mainland attorneys may not be necessary in civil
rights actions, particularly if local attorneys were paid an actual market rate,
ensuring the widespread enforcement of civil rights may justify this Courts
looking beyond the local geographic community in determining an appropriate
rate. Barjon v. Dalton, 132 F.3d 496, 501 (9th Cir. 1997) (citing Casey v. City of
Cabool, Missouri, 12 F.3d 799 (8th Cir. 1993)). Plaintiffs object to the rates
imposed by the magistrate and again request an award of reasonable rates offering
the Laffey matrix as an indication of what those rates should be.
Plaintiffs attorneys are entitled to a reasonable and fully compensatory
fee comparable to what is traditional with attorneys compensated by a fee-paying
client. Missouri v. Jenkins by Agvei, 491 U.S. 274, 285-86 (1989); Camacho,
523 F.3d at 981 (in order to encourage counsel to undertake FDCPA cases, as
congress intended, it is necessary that counsel be awarded fees commensurate with
those which they could obtain by taking other types of cases). While Plaintiffs
recognize that 42 U.S.C. 1988 is not designed to make counsel rich,
[a]dequate compensation is necessary, however, to enable an attorney to serve his
client effectively and to preserve the integrity and independence of the profession.
Johnson v. Georgia Highway Exp, Inc., 488 F.2d 714, 719-20 (5th Cir. 1974),
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abrogated by Blanchard, 489 U.S. 87. As shown by Plaintiffs declarations and
evidence, the evidence in past cases, and even the article cited by the magistrate,
adequate compensation was not awarded.
Although not raised by the magistrate or discussed in any opinion known to
Plaintiffs, counsel is compelled to also observe that the Citys financial hardships
do not justify the fee reduction. See Hohlbein v. Utah Land Res., LLC, 467 F.
Appx 715, 717 (9th Cir. 2012) (unpublished) (attached).
B. 25% Meat-Axe Reduction
The magistrate expressed concerns about Plaintiffs counsels practice of
billing in primarily half-hour increments. [Doc. 64, p. 22] The magistrate stated
[t]his Court routinely reduces hours when attorneys bill in quarter-hour
increments because the tasks reflected in the time entries likely took a fraction of
the time billed and the practice of billing in such large fractional increments
typically results in requests for excessive hours. Id. The magistrate then
reviewed counsels billing statements and, apparently based solely on this typical
result, meat-axed 25% across-the-board to offset the excessive hours that
resulted from Plaintiffs counsels primarily half-hour billing practice. Id. at 23.
While a court may make across-the-board percentage cuts . . . in the number of
hours claimed . . . as a practical means of trimming the fat from a fee application, .
. . a small reduction of fees necessitates only cursory explanation, [but] anything
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more disparate requires a more specific articulation of the courts reasoning. In
re Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) (quoting Gates, 987 F.2d at 1399
(citations omitted), and Moreno, 534 F.3d at 1111). The magistrate should
explain[ ] the relationship between the time improperly billed and the size of
the [fee] reduction. Sorenson, 239 F.3d at 1146. The greater the reduction, the
more explanation is needed. Moreno, 534 F.3d at 1111.
Here, there was no explanation at all. The magistrate simply stated that the
incremental billing typically results in inflated fees and, reduced the hours by a
whopping 25% because of the unexplained excessive hours that resulted from
the billing, decimating the presumption that the hours submitted by counsel were
reasonable. [Doc. 64, p. 23]; Moreno, 534 F.3d at 1112 ([b]y and large, the court
should defer to the winning lawyers professional judgment as to how much time
he was required to spend on the case; after all, he won, and might not have, had he
been more of a slacker.) This 25% reduction is far more than a 10% haircut
that is permissible without specific explanation. Moreno, 534 F.3d at1106, 1112
(9th Cir. 2008). Plaintiffs object to this complete lack of explanation.
Moreover, the mere assertion that this case is typical is unsupported by the
record. Each attorney swore that the hours actually submitted had been reduced
and/or hours omitted from the billing. [Doc. 56-2, p. 8; 56-3, pp. 5-6; 56-4, p. 3]
Further, the magistrate cites as a glaring example Mr. Holcombs fees-on-fees
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request. [Doc. 64, p. 23] Yet, Mr. Holcomb had already specifically reduced the
hours actually submitted by 25%. [Doc. 56-2, p. 9 (specifically informing the
Court that Mr. Holcomb did not seek to recover 4.5 hours spent researching the
motion)]; cf. Moreno, 534 F.3d at 1110-11 (Morenos principal trial counsel had
excluded around 9% of her total hours). Indeed, Mr. Holcombs timesheet
includes numerous no charge entries. [Doc. 56-2]
In addition, although it is unclear from the Recommendation, surely the
magistrate is not accusing counsel of fabricating entries. Instead, the magistrates
concern is more likely that counsel rounded up increments that should have been
rounded down and/or billed as a 6 minute increment. [See Doc. 64, p. 22 (tasks
reflected in the time entries likely took a fraction of the time billed)] There are a
total of 81 separate line-item entries in counsels timesheets. [Docs. 56-2 56-4]
Even without considering that each 15 minute entry must have derived from at
least 6, if not 12, minutes of accurately billed time, deducting 15 minutes from
each of those entries (a deduction which results in the complete removal of many
of Mr. Holcombs entries) results in a total deduction of 1215 minutes or 20.25
hours. A 20.25 hour reduction is very close to the 10% haircut of the total
201.85 hours submitted by counsel and is a reduction that would be tolerated by
Moreno. If a 10% haircut had been applied, Plaintiffs would not be raising this
objection. And perhaps more telling is the fact that Defendants only requested at
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20% reduction in regards to the billing increments and the cases cited by
Defendants only reduced the award by 10%. [Doc. 62, pp. 24-25]
The 25% meat-axe reduction despite counsels having sworn to the omission
of numerous hours, the no charge entries, and the fact that the hours were
rounded down is grossly unfair and does not serve to attract counsel to take these
types of cases. Plaintiffs object to this reduction.
Finally, insofar as the Court finds the billing increments were a result of
counsels inexperience, this reduction was error as purported inexperience was
specifically considered in establishing counsels rates. [Doc. 64, p. 16] Thus,
Plaintiffs object as this further reduction would be impermissible double
counting. Moreno, 534 F.3d at 1115-16; Marquez v. Harper Sch. Dist. No. 66,
546 F. App'x 659 (9th Cir. 2013) (unpublished) (attached).
C. Task-based limitations
Despite the novelty of the case, the magistrate also found that the Complaint
should not have taken 39.5 hours to complete. [Doc. 64, p. 18] The magistrate
deducted 19.5 hours from Mr. Becks request. Id. This should not be permitted,
particularly with a complete absence of explanation as to how this number was
somehow conjured. By and large, the court should defer to the winning lawyer's
professional judgment as to how much time he was required to spend on the case;
after all, he won, and might not have, had he been more of a slacker. Moreno, 534
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F.3d at 1112. And, in this case, Plaintiffs were very concerned as to the complete
lack of guidance as to the whether social media could serve as a public forum.
Accordingly, Mr. Beck properly spent time attempting to ensure that no
outstanding issues would surprise Plaintiffs following a significant investment of
time and money into this litigation.
Plaintiffs also object to the magistrates unexplained deduction of 7 hours
from Mr. Brazier and 6 hours from Mr. Beck because the motion [for summary
judgment] could have been avoided and also because large portions of the
motion for summary judgment were taken verbatim from the motion for
preliminary injunction. [Doc. 64, p. 18] Plaintiffs again object because there is
no explanation at how the magistrate arrived at that arbitrary number.
Perhaps more importantly, the motion could not have been avoided. In fact,
as set forth in Plaintiffs reply [Doc. 63, pp. 3-5], counsel attended two settlement
conferences one with the magistrate and one with this reviewing judge.
Defendants flatly refused to agree to pay Plaintiffs out-of-pocket expenses until
the conference of January 16, 2013. [Doc. 51] This was literally only two
business days before the scheduled hearing on the Motion for Summary Judgment.
[Doc. 45 (hearing set January 21, 2014)] And, Plaintiffs prevailed on this issue
which was not only very important to Plaintiffs but also was memorialized in the
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Stipulation and Order itself. [Doc. 55] Could Plaintiffs really be expected to blow
the Motion deadline in hopes the City decided to reasonably resolve this case?
And, insofar as the magistrate implicitly accuses counsel of excessively
billing for work that was already done, necessary review is appropriately billed
particularly where years have passed as in this case. Moreno, supra. Attorneys
cannot simply cut and paste a two year old document into a current filing without
first refreshing their memories and, then, ensuring the law has not changed.
Plaintiffs object to those reductions.
D. Duplicative Time
Plaintiffs object to the reduction of 2.5 hours from Mr. Braziers request and
2.0 hours from Mr. Becks request based on duplicative time. [Doc. 64, p. 20]
Without evaluating whether the time spent was reasonable and again relying solely
on this Courts previous fee awards, the magistrate simply held that [t]he Court
does not permit more than one attorney to bill for attending: (1) a meeting between
co-counsel; (2) a client meeting; or (3) a meeting with opposing counsel . . . [and]
[i]n such a situation, the time spent by the lowest-billing attorney(s) is deducted.
Id. This rule, without considering the reasonableness of the time spent is
contrary to the lodestar method adopted by the Ninth Circuit, particularly where, as
here, Defendants have offered no reason why the billed time was unnecessary or
excessive. Camacho, 523 F.3d at 980 (quoting Gates, 987 F.2d at 139798).
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As the Eastern District of California has observed:
Numerous courts have recognized that staffing multiple attorneys on a
single task may improve a party's chance of success in litigation. See,
e.g., PSM Holding Corp. v. Nat'l Farm Fin. Corp., 743 F.Supp.2d
1136, 1157 (C.D.Cal.2010) ([D]ivision of responsibility may make it necessary for more than one attorney to attend activities such as
depositions and hearings. Multiple attorneys may be essential for
planning strategy, eliciting testimony or evaluating facts or law. (citation and internal quotation marks omitted)); cf. United States v.
City & County of San Francisco, 748 F.Supp. 1416, 1421
(N.D.Cal.1990) (noting that the presence of several attorneys at strategy sessions for complex civil rights class actions may be crucial
to the case).
Likewise, although defendants object to several time entries spent on
office conferences, [a] conference with only one participant is no longer a conference, and [t]he upshot of accepting [this] view would be to hold that all conferencing by [plaintiffs'] attorneys was excessive
and duplicative. Prison Legal News v. Schwarznegger, 561 F.Supp.2d 1095, 110304 (N.D.Cal.2008), aff'd, 608 F.3d 446 (9th Cir.2010) (citations and internal quotation marks omitted). Absent any
specific evidence that plaintiffs' decision to staff multiple attorneys on
particular tasks was excessive, the court will not reduce the billed
hours of plaintiffs' counsel on this basis. See Moreno, 534 F.3d at
1114 (noting that the district court may not set the fee based on speculation as to how other firms would have staffed the case).
Deocampo v. Potts, CIV. 2:06-1283 WBS, 2014 WL 788429 at *3 (E.D. Cal. Feb.
25, 2014) (unpublished) (attached). Presumably for the reasons set forth in
DeCampo, the City certainly does not hesitate to bring more than one lawyer to
various hearings and/or more than one City lawyer often defends these cases
demonstrating that those lawyers must communicate. Obviously, the City does not
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stop paying those lawyers because they are communicating with one another or
collaborating on specific tasks. Plaintiffs object.
II. CONCLUSION
Plaintiffs request that this Court modify the Recommendation consistent
with these objections and award Plaintiffs attorneys fees commensurate to the
award requested. As set forth in the attached Declaration of Richard L. Holcomb,
Plaintiffs also request this Court award Attorney Holcomb an additional $7,952 for
the work done relating to these objections.
DATED: Honolulu, Hawaii, May 5, 2014.
s/Richard Holcomb
Richard Holcomb
Attorney for Plaintiffs
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