Case v. Unified School Dist. No. 233, Johnson County, Kan.
| Decision Date | 13 October 1998 |
| Docket Number | No. 96-3328,96-3328 |
| Citation | 157 F.3d 1243 |
| Parties | 129 Ed. Law Rep. 1003, 98 Cal. Daily Op. Serv. 5254 Stevana CASE, Andy Case, a minor, by and through his parent and next friend, Steven Case; Steven Case, individually, Amanda Greb, a minor, by and through her parent and next friend, Cynthia Greb; Cynthia Greb, individually; Rebekka Kamberg, a minor, by and through her parent and next fried, Mary-Lane Kamberg; Johanna Kamberg, a minor, by and through her parent and next friend, Mary-Lane Kamberg; Mary-Lane Kamberg, individually; Sam Pierron, a minor, by and through his parent and next friend, Amy Pierron; Abby Pierron, by and through her parent and next friend, Amy Pierron; Amy Pierron, individually; Jon Stonger, a minor, by and through his parent and next friend, Rex Stonger; and Rex Stonger, individually, Plaintiffs-Appellants, v. UNIFIED SCHOOL DISTRICT NO. 233, JOHNSON COUNTY, KANSAS, and Dr. Ron Wimmer, in his capacity as Superintendent of Schools, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David J. Waxse, Shook, Hardy & Bacon, L.L.P., Overland Park, Kansas, (J. Eugene Balloun and Celia K. Garrett, Shook, Hardy & Bacon, L.L.P. and John E. Kirkland, New City, New York, with him on briefs) for Plaintiffs-Appellants.
Daniel B. Denk (Gregory P. Goheen with him on the brief), McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for Defendants-Appellees.
Before SEYMOUR, ANDERSON, and HENRY, Circuit Judges.
This is an appeal solely from an award of attorney's fees. Attorneys for the plaintiffs won a 42 U.S.C. § 1983 judgment against the defendant school district and thus were entitled under 42 U.S.C. § 1988 to attorney's fees and expenses and under 28 U.S.C. § 1920 to costs associated with the prosecution of the case. They requested fees, expenses, and costs totaling $481,330.83; the district court awarded them $82,603.88, and they appeal. We affirm in part, reverse in part, and remand.
Appellants are attorneys for a group of students, their parents, and a teacher who sued a Kansas school district in federal court for declaratory and injunctive relief under 28 U.S.C. § 1983. Because only the attorneys, rather than the plaintiffs, are the real parties-in-interest in this appeal, we will refer to the attorneys as the appellants in this opinion. The plaintiffs, who were recruited by appellants, alleged violations of § 11 of the Kansas Bill of Rights ("Liberty of press and speech; libel.") and the First and Fourteenth Amendments to the United States Constitution because of (1) a decision by the district's school board to remove a book discussing homosexuality from the district's libraries and (2) the district's pre-distribution review and censorship of a student's fliers complaining of the book's removal. They filed their complaint on March 9, 1994.
The parties litigated the case thoroughly. During a contentious discovery process in which the district court sanctioned the defendants for discovery violations, the parties produced 3,263 pages of documents and deposed twenty-seven witnesses in thirty-four sessions resulting in 3,227 pages of deposition testimony. Additionally, both parties filed motions for summary judgment; the defendants moved to strike portions of the plaintiffs' complaint and later moved to dismiss the complaint; the plaintiffs filed a motion to exclude the defendants' expert witnesses; the defendants requested reconsideration of three of the district court's orders; and both sides hired expert witnesses, whom they later agreed not to use. On July 24, 1995, the district court entered an order finding that one of the plaintiffs lacked standing and dismissing the count of the complaint relating to the pre-distribution review of the flier. On November 29, 1995, after a four-day bench trial at which the parties presented twenty-two witnesses and 117 marked exhibits and after considering post-trial briefs from the parties, the court found that graduated students and their parents did not have standing and entered judgment against plaintiffs on their Fourteenth Amendment due process claim. However, the court ruled in favor of the remaining plaintiffs on their First Amendment and Kansas Bill of Rights claims. The district court's order reflects that the case was a fairly novel one: There was no binding precedent, and the district court ultimately relied on a plurality opinion of the Supreme Court addressing a similar issue. The district court ordered the school district to return the book to its libraries no later than January of 1996.
As the attorneys of prevailing plaintiffs in a civil rights action, the appellants were entitled to an award of attorney's fees, expenses, and costs associated with the prosecution of the case. See 42 U.S.C. § 1988; 28 U.S.C. § 1920. The defendants offered to settle the appellants' bills for $170,000. The appellants refused, and the parties could not agree on an acceptable fee at a mediation session with a magistrate judge. The appellants then filed a motion with the district court requesting fees, expenses, and costs. With their motion, the appellants submitted billing statements to the court and the affidavits of three attorneys who found their billings to be reasonable. The appellants also claimed to have voluntarily eliminated all hours of summer associates, document clerks, and librarians and made an additional reduction of five percent of their overall hours which, they averred, eliminated time spent on media-related activities and their unsuccessful Fourteenth Amendment claim. After these reductions, they were left with a claim for 2,883.8 attorney hours and 1,179.59 legal assistant hours. They asked for attorney rates between $240 an hour and $90 an hour and legal assistant rates between $70 an hour and $50 an hour. Their final total fees request was $444,139.96.
In response to the appellants' motion, the defendants submitted a memorandum requesting that the district court award only a fraction of the appellants' fee request. The defendants' affidavits showed that their attorneys had billed 1,050.3 hours defending the case. However, the defendants admitted that the 1,050.3 figure did not include the hours expended by Mike Norris, the school district's regular attorney, who defended and took depositions, produced documents, met with and prepared witnesses, corresponded with appellants, and appeared at trial. Therefore, the 1050.3 hour figure was significantly less than the total hours defendants actually spent defending the case. The defendants submitted an attorney affidavit which suggested that 1,405 hours were reasonable to prosecute the case at $150 an hour for partners, $90-$100 an hour for associates, and $50 an hour for legal assistants. However, in their response brief, the defendants undercut their own witness's recommendation and urged that 1,300 hours were reasonable to prosecute the case at $135 an hour for partners, $85 an hour for associates, and $50 an hour for legal assistants. Using these figures, they argued for a lodestar fee of $123,500.
After reviewing this evidence, the district court believed that reductions in the appellants' proposed billings were necessary. As a result, in calculating the lodestar, the court cut both hours and rates charged. The district court ultimately awarded appellants substantially less than requested by either party: 510 attorney hours at rates of $125 an hour for partners and $100 an hour for associates and 150 legal assistant hours at a rate of $35 an hour. Using these hours and rates, the court's lodestar fee award totaled $64,250. The court then rejected the defendants' argument that the lodestar should be reduced because the plaintiffs did not prevail on all of their claims; the court found that the defendants' proposed reduction was not justified because the Fourteenth Amendment claims were "intrinsically related" to the First Amendment claims.
In an effort to summarize the fee requests and determinations outlined above, we have created the following chart which lists the relevant fee award reduction for each attorney and legal assistant. The chart sets forth the appellants' fee request, the defendants' response to that request, and the court's final awards. It also includes entries for copies, faxes, and Westlaw costs, the charges for which were either cut or disallowed in their entirety by the district court. Although the district court made other reductions in the appellants' billings, those reductions were not appealed, and, therefore, the appellants have waived any challenge to those reductions. Additionally, the defendants did not appeal any aspect of the district court's ruling.
Although the defendants' affiant's opinion of the appellants' reasonable hours is not a decisive factor in this decision, we wish to explain the reasonable hour figure we attribute to defendants' affiant in the chart. The affiant concluded that the appellants requested 2,810.85 attorney hours rather than the 2,883.8 attorney hours they reported to the district court. Using this lower number, he testified that the appellants' requested hours should be reduced "on the order of 50 percent," Aplts' App. vol. VII, at 2219, or to 1,405 attorney hours. After reviewing his affidavit and the appellants' billings, we cannot determine how the defendants' affiant derived the 2,810.85 figure. However, the appellants have not challenged his math but rather have used the 1,405 number in their arguments to the district court and this Court. Therefore, we use that figure in the chart.
Appellants Defendants District Court
Claimed Suggested Awarded
Attorneys
Marjorie Heins 147.7 hours at Their affiant stated None
(ACLU) $240/hour that a reasonable
bill was 1,405
Eugene 500 hours at...To continue reading
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...award prevailing parties reasonable expenses incurred in the course of the litigation. See Case by Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir. 1998). Expenses recoverable as part of an attorney fee award include costs of nonduplicative outgoing telefaxes and computeri......
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Texas Commission on Human Rights Act : Procedures and Remedies
...award prevailing parties reasonable expenses incurred in the course of the litigation. See Case by Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir. 1998). Expenses recoverable as part of an attorney fee award include costs of nonduplicative outgoing telefaxes and computeri......