Orr v. Brame ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 HARRISON ORR, individually, No. 2:14-cv-585 WBS EFB 13 Plaintiff, 14 v. ORDER RE: ATTORNEY’S FEES AND 15 EXPENSES ON REMAND CALIFORNIA HIGHWAY PATROL, a 16 public entity; STATE OF CALIFORNIA, a public entity; 17 CALIFORNIA HIGHWAY PATROL OFFICERS BRAME, PLUMB, and 18 DOES 1-10 individually; 19 Defendants. 20 21 ----oo0oo---- 22 This excessive force case is back before the court for 23 the second time on remand from the Ninth Circuit for 24 recalculation of attorney’s fees. In light of the Ninth 25 Circuit’s decisions, the court orders as follows: 26 (1) The appropriate lodestar amount for fees incurred 27 prior to the first appeal of this case is $423,575, for the 28 reasons discussed in the court’s December 22, 2015 and October 3, 1 2018 orders (Docket Nos. 203, 250). 2 (2) Plaintiff is entitled to this entire lodestar 3 amount, without any reduction, as ordered by the Ninth Circuit 4 (Docket No. 259). 5 (3) The court previously determined that plaintiff is 6 entitled to $30,360 for “fees on fees” incurred prior to appeal, 7 for 75.9 hours of attorney work, at a rate of $400 per hour. The 8 court reaffirms this prior determination, for the reasons 9 discussed in the court’s 2015 and 2018 orders. The court now 10 determines that, in accordance with the Ninth Circuit’s orders, 11 plaintiff is also entitled to fees on fees for the hours the 12 court previously deducted -- 50 hours for Richard M. Pearl, 4 13 hours for Michael J. Haddad, and 4 hours for Julia Sherwin. At 14 the $400 rate previously awarded by this court, and affirmed by 15 the Ninth Circuit, for fees on fees prior to the first appeal, 16 plaintiff is entitled to an additional $23,200 in fees on fees. 17 Overall, plaintiff is entitled to a total of $53,560 in fees on 18 fees prior to his first appeal. 19 (4) The court previously determined that plaintiff was 20 entitled to $28,676.57 for expenses incurred prior to the first 21 appeal. However, in awarding this amount, after disallowing and 22 reducing certain expenses, the court reduced the remaining 23 expenses by 25% due to plaintiff’s limited success. (Docket No. 24 203 at 33-37.) In light of the Ninth Circuit’s orders in this 25 case, the court now determines that plaintiff is entitled to the 26 25% portion of expenses the court deducted due to limited 27 success. Accordingly, the court awards $38,235.43 in expenses 28 for work done prior to plaintiff’s first appeal. 1 (5) Plaintiff is entitled to fees for his counsel’s 2 work after the first remand of this case and before the second 3 appeal, for work performed by Pearl (59.95 hours), Haddad (28.3 4 hours), and Teresa Allen (11.5 hours), for the reasons discussed 5 by plaintiff’s memoranda dated June 4, 2018 and August 31, 2018 6 (Docket Nos. 239, 247). 7 The Ninth Circuit has explained that “[d]etermining the 8 number of hours reasonably expended requires ‘considering 9 whether, in light of the circumstances, the time could reasonably 10 have been billed to a private client.’” Vargas v. Howell, No. 11 18-15513, 2020 WL 562285, at *2, --- F.3d ---- (9th Cir. 2020) 12 (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th 13 Cir. 2008)). Here, this court cannot imagine that any private 14 client would be willing to pay an attorney for almost 100 hours 15 briefing attorney’s fees on remand after such issue was already 16 thoroughly briefed before the first appeal. Nevertheless, the 17 Ninth Circuit’s order that plaintiff’s counsel “should be 18 compensated for litigating any issue fairly subsumed in the 19 lodestar calculation, including the extent of Orr’s success, as 20 well as issues that arose only after Orr I was decided, such as 21 the time spent litigating the reasonable 2018 rates” precludes 22 any reduction to the 99.75 hours requested by plaintiff’s counsel 23 for work on remand prior to the second appeal. 24 (6) Plaintiff is entitled to fees for his counsel’s 25 work after the first remand of this case and before the second 26 appeal, at a rate of $580 per hour for Pearl, $580 per hour for 27 Haddad, and $380 per hour for Teresa Allen, for the reasons 28 discussed by plaintiff’s memoranda dated June 4, 2018 and August 1 31, 2018 (Docket Nos. 239, 247). Applying these rates to the 2 hours allowed for these attorneys, plaintiff is entitled to 3 $55,555 for attorney’s fees for work done after the first remand 4 prior to the second appeal. 5 This court’s finding in its Order of December 22, 2015 6 that $400 per hour was a reasonable rate of compensation for work 7 performed by Haddad and Sherwin before the first remand was 8 affirmed by the Ninth Circuit. In subsequently awarding them and 9 Pearl an additional $30 per hour for the work performed after the 10 first remand and before the second appeal, this court explained 11 that the enhancement was to compensate plaintiff’s lead counsel 12 for the increase in their rates since 2015. The Ninth Circuit 13 found this to be an insufficient explanation. Frankly, this 14 court is unable to provide any better explanation than that set 15 forth in its two orders. As stated, the enhancement, which 16 amounted to a 7.5% increase, was consistent with the increase in 17 counsel’s stated rates, and it seemed more than adequate to 18 adjust for inflation. 19 While the court has endeavored to provide the requisite 20 concise and clear explanation for its fee awards, the Ninth 21 Circuit’s serial rejection of the fee awards in this case leaves 22 the court unable to articulate any reason for the rates and 23 number of hours for fees on fees on remand other than to simply 24 rely on plaintiff’s briefing and declarations to justify Pearl’s 25 rate of $580 per hour, Haddad’s rate of $580 per hour, and 26 Allen’s rate of $380 per hour for work on remand. Hopefully, 27 this will spare all concerned the burden of a third appeal on 28 plaintiff’s attorney’s fees. “The larger the difference between 1 the fee requested and the fees awarded, the more specific 2 articulation of the court’s reasoning is expected.” Vargas, 2020 WL 562285, at *3 (citation and internal punctation omitted) □□ 4 (7) Plaintiff is entitled to attorney’s fees for work 5 | performed after the Ninth Circuit’s second remand of this case, 6 with the amount of fees to be calculated by the court after 7 plaintiff provides proper documentation of those fees. 8 For the foregoing reasons, overall, the court will 9 award $570,925.43 in attorney’s fees and expenses, calculated as 10 follows: 11 Lodestar: S$ 423,575.00 12 Fees on Fees (prior to appeal) S 53,560.00 13 Fees on Fees (on first remand) S$ 55,555.00 14 Fees on Fees (on second remand) TBD 15 Expenses: S 38,235.43 16 TOTAL AWARD: S$ 570,925.43 17 18 IT IS SO ORDERED. 19 | Dated: February 20, 2020 tleom ah. A. be—~ 20 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 21 22 23 1 This decision will undoubtedly be cited to this court and other courts in the future as standing for the proposition that these are reasonable 24 rates to compensate attorneys representing prevailing plaintiffs in civil rights cases. That does not follow. Rather, the result here is the product 25 of the peculiar circumstances of this case. None of the time spent by counsel after the first remand was in representing their client. All of it was spent 26 exclusively in litigating their own fees. While this decision should not be taken as any comment on counsel’s abilities or effectiveness in representing their clients, it does stand as a testament to their expertise and 27 effectiveness in fighting for their own fees. The bottom line here is that they have been able to recover over four times as much money for themselves as 28 they got for their client in this action, and it may not be over yet.