Rea Paeste v. Government of Guam

FILED
NOT FOR PUBLICATION AUG 26 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REA MIALIZA O. PAESTE; JEFFREY F. Nos. 13-15389, 13-17515, 14-
PAESTE; SHARON M. ZAPANTA, 16247
GLENN ZAPANTA, individually and on
behalf of all others similarly situated, D.C. No. 1:11-cv-00008
Plaintiffs - Appellees,
MEMORANDUM*
v.
GOVERNMENT OF GUAM; EDDIE
BAZA CALVO, in his official capacity;
BENITA MANGLOÑA, in her official
capacity; JOHN CAMACHO, in his
official capacity,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Guam
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted June 9, 2015
Honolulu, Hawaii
Before: WARDLAW, BERZON, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Guam and several of its officers in their official capacities (collectively,
“Guam”) appeal from the district court’s orders awarding attorney’s fees and costs,
pursuant to 42 U.S.C. § 1988, to plaintiffs Rea Mializa Paeste, Jeffrey Paeste,
Sharon Zapanta, and Glenn Zapanta, on behalf of a class of Guam Taxpayers
(collectively, “the Taxpayers”). We affirm.
1. In an opinion filed concurrently with this disposition, we hold that the
Taxpayers had a valid claim under 42 U.S.C. § 1983.
2. The district court did not abuse its discretion by declining to reduce fees
based on the Taxpayers’ submission of billing summaries. A prevailing party “can
meet his burden . . . by simply listing his hours and ‘identify[ing] the general
subject matter of his time expenditures.’” Fischer v. SJB-P.D. Inc., 214 F.3d 1115,
1121 (9th Cir. 2000) (alteration in original) (quoting Davis v. City & Cnty. of San
Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992), opinion vacated in part on other
grounds on denial of reh’g, 984 F.2d 345 (9th Cir. 1993)). The Taxpayers’
“summary of the time spent on a broad category of tasks . . . compiled from time
slips” was sufficient to satisfy “this basic requirement.” Id. (internal quotation
marks omitted). Defendants did not request discovery of the actual time logs, and
one of the plaintiffs’ firms explicitly offered to provide the logs if the district court
requested them. Moreover, the district court did not blindly accept the Taxpayers’
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requested fees, as it awarded fees at rates lower than those requested. Cf. Sealy,
Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984).
3. The district court did not abuse its discretion by awarding fees for time
expended prior to the filing of the first amended complaint. While the original
complaint sought different relief based on somewhat different legal theories, the
Taxpayers “are entitled to attorneys’ fees for time spent on it because the amended
complaint on which they did prevail was closely related to the original complaint
and resulted in complete relief.” Bonnette v. Cal. Health & Welfare Agency, 704
F.2d 1465, 1473 (9th Cir. 1983), disapproved of on other grounds by Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
4. The district court did not abuse its discretion by declining to reduce the
fee award for the purportedly duplicative work performed by the Taxpayers’ two
law firms. We afford “considerable deference to [the district court’s] findings
regarding whether hours claimed by prevailing counsel are redundant.” McGrath
v. Cnty. of Nevada, 67 F.3d 248, 255 (9th Cir. 1995). We discern no abuse of
discretion here. “[B]road-based class litigation often requires the participation of
multiple attorneys” or firms. Davis, 976 F.2d at 1544.
5. The district court did not abuse its discretion by awarding fees for the
work performed on an ultimately unresolved motion to compel discovery. The
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motion “would have been undertaken by a reasonable and prudent lawyer to
advance or protect [the] client’s interest in the pursuit of a successful recovery.”
Nadarajah v. Holder, 569 F.3d 906, 923 (9th Cir. 2009) (alteration in original)
(quoting Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982))
(internal quotation marks omitted). The Taxpayers should not be penalized
because they ultimately prevailed on summary judgment without any need for a
ruling on the motion to compel.
6. Under the circumstances of this case, the district court did not abuse its
discretion by awarding fees for time spent communicating with the media.
“Prevailing civil rights counsel are entitled to fees for ‘press conferences and
performance of other lobbying and public relations work’ when those efforts are
‘directly and intimately related to the successful representation of a client.’”
Gilbrook v. City of Westminster, 177 F.3d 839, 877 (9th Cir. 1999), as amended on
denial of reh’g (July 15, 1999) (quoting Davis, 976 F.2d at 1545). The media work
in this case was directly and intimately related to the successful representation of
the class, both as a means of pursuing a settlement on beneficial terms and as a way
of keeping the very numerous class members — a great percentage of all the
citizens of Guam — informed regarding the conduct and outcome of the litigation.
See id.; Davis, 976 F.2d at 1545.
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7. The district court did not abuse its discretion by awarding section 1988
costs for expenses attributable to the Taxpayers’ retention of a San Francisco law
firm. A section 1988 prevailing party may recover as costs reasonable expenses
that would be “normally charged to fee-paying clients.” Woods v. Carey, 722 F.3d
1177, 1179 n.1 (9th Cir. 2013). The travel, hotel, pro hac vice application fees,
and related costs taxed in this case were reasonably expended, particularly given
the scale and complexity of this class-action suit.
The district court had declined to award out-of-district billing rates, citing a
purported lack evidence that local counsel was unavailable to litigate this case. See
Barjon v. Dalton, 132 F.3d 496, 500-02 (9th Cir. 1997). That decision was not
challenged on appeal, so we do not decide whether it was justified or not. Either
way, the court did not abuse its discretion by granting costs attributable to the
Taxpayers’ retention of out-of-district counsel, as different considerations govern
the court’s awards of billing rates and out-of-pocket costs.
“The factually complex and protracted nature of civil rights litigation
frequently makes it necessary to make sizeable out-of-pocket expenditures which
may be as essential to success as the intellectual skills of the attorneys.” Davis v.
Mason Cnty., 927 F.2d 1473, 1488 (9th Cir. 1991), superseded by statute on other
grounds as recognized in Davis, 976 F.2d at 1556 (internal quotation marks
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omitted). “If these costs are not taxable, and the client, as is often the case, cannot
afford to pay for them, they must be borne by counsel, reducing the fees award
correspondingly.” Id. (internal quotation marks omitted). The district court’s costs
award preserved the fee award at the hourly rates the district court approved. The
costs award was therefore consistent with the goal of section 1988 to “attract
competent counsel” to “enforce the covered civil rights statutes” without
“produc[ing] windfalls to attorneys.” Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552 (2010) (internal quotation marks omitted).
8. Guam provided “no authority” but only a “brief discussion with several
conclusory assertions” to support its argument that the district court erred in
awarding costs for expedited transcripts without a showing of good cause. That
argument is waived. United States v. Index Newspapers LLC, 766 F.3d 1072, 1092
n.14 (9th Cir. 2014). In any event, we discern no abuse of discretion on this score.
AFFIRMED.
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