Cleveland Area Bd. of Realtors v. City of Euclid

• Decision Date: 30 May 1997
• Docket Number: No. 1:92CV2714.,1:92CV2714.
• Citation: 965 F.Supp. 1017
• Parties: CLEVELAND AREA BOARD OF REALTORS, et al., Plaintiffs, v. The CITY OF EUCLID, Defendant.
• Court: U.S. District Court — Northern District of Ohio

965 F.Supp. 1017

CLEVELAND AREA BOARD OF REALTORS, et al., Plaintiffs, v. The CITY OF EUCLID, Defendant.

No. 1:92CV2714.

United States District Court, N.D. Ohio, Eastern Division.

May 30, 1997.

Arthur M. Kaufman, Robert J. Fogarty, Hahn, Loeser & Parks, Cleveland, OH, for Plaintiffs.

R. Todd Hunt, Walter & Haverfield, Cleveland, OH, John Francis Manley, Richard Anthony Wiegand, City of Euclid, Department of Law, Euclid, OH, for Defendant.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Before the Court is plaintiffs' motion for attorneys' fees and costs in the amount of $390,078.71. For the reasons stated below, the Court grants the motion in the amount of $308,825.70.¹

I.

The Cleveland Board of Realtors ("CABOR"), Acacia Realty Professionals, Inc., Mary Jane Balazs, Brickman & Associates Realty, Inc., Century 21 Leo Baur Realtors, HRI, Inc. d/b/a Hilltop Realty, Frank J. Jochum d/b/a Frank J. Jochum Realty, and John Miller (collectively "CABOR") brought this action against the City of Euclid, Ohio ("Euclid"), challenging the constitutionality of three Euclid ordinances regulating the size, number and placement of commercial and noncommercial signs on residential property. On September 29, 1993, after a ten day bench trial, this Court found that the ordinances violated the first amendment, and permanently enjoined their enforcement. Cleveland Area Bd. of Realtors v. City of Euclid, 833 F.Supp. 1253 (N.D.Ohio 1993). On July 8, 1996, the Sixth Circuit affirmed this Court's judgment, and on September 19, 1996, denied Euclid's petition for rehearing. Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d 382 (6th Cir.1996).

On October 11, 1996, CABOR filed this motion for attorneys' fees and costs, pursuant to 42 U.S.C. § 1988 and Rule 54(d) of the Federal Rules of Civil Procedure. CABOR seeks attorneys' fees in the amount of $341,673.74 and costs in the amount of $48,404.97, as well as additional fees incurred after September 30, 1996 in connection with the current motion.²

II.

In any action to enforce 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988. "If a plaintiff prevails in a suit covered by § 1988, fees should be awarded as costs `unless special circumstances would render such an award unjust.'" Kentucky v. Graham, 473 U.S. 159, 164, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985) (citations omitted).

The amount of the fee awarded necessarily depends upon the facts of each case. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). A district court arrives at a reasonable fee by multiplying the "number of hours reasonably expended on the litigation" by a reasonable hourly rate. Id. at 433, 103 S.Ct. at 1939.³ This calculation is based on the rates and practices "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Missouri v. Jenkins, 491 U.S. 274, 286, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (1989) (citing Blum, 465 U.S. at 896 n. 11, 104 S.Ct. at 1547 n. 11). Any hours that were not reasonably expended are excluded from the calculation. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40. The party seeking the award has the burden of submitting evidence supporting the hours and rates claimed. Id. at 433, 103 S.Ct. at 1939.

A. Fees

CABOR seeks the following fees in connection with its retention of the Cleveland law firm of Hahn Loeser & Parks ("Hahn Loeser") in this matter:

                Trial level (roughly from October 1, 1992 — September 30, 1993)
                        Attorneys
                        RJ Fogarty:    328.20 hrs.    @      205-215/hr =  69,985.00
                        AM Kaufman:    701.10 hrs.    @      125-130/hr =  90,682.00
                        RM Kochis:     946.09 hrs.    @       95-100/hr =  93,763.00
                        MT Cawley:     135.10 hrs.    @       95-100/hr =  13,041.00
                

                Paralegals
                         SA Jarosz:       31.60 hrs.   @     83/hr =    2,622.80
                         NS Prodan:      266.80 hrs.   @  80-83/hr =   22,060.40
                         HD Neubert:      14.80 hrs.   @     78/hr =    1,154.40
                         ED Tropf:        15.30 hrs.   @  75-78/hr =    1,191.60
                         JE Grim:         49.50 hrs.   @     73/hr =    3,613.50
                         TOTAL for trial level: 2,489.30 hrs.      = $298,113.70
                Appellate Level (fixed fee arrangements)
                         Preparation of initial appellate briefs/oral argument:         30,000.00
                         Post appeal brief in opposition to briefs of Amici municipal
                         associations:                                                   5,000.00
                         Brief in opposition to Euclid's petition for rehearing:         5,000.00
                         Additional misc. fees:                                          3,560.04
                         TOTAL for appellate level: $43,560.04
                

Euclid contends, first, that this request should be denied outright because it is shocking to the conscience. This Court, however, does not find the request shocking in light of the nature and length of this litigation, and therefore moves on to Euclid's second contention: that the fees should be reduced. Euclid asserts five main grounds for reducing the fees requested by CABOR.⁴

First, Euclid argues that time spent on three of the four claims asserted in the complaint should be discounted because CABOR did not prevail on those claims. In ruling for CABOR on its first amendment claim, this Court did not reach the three alternative theories asserted by CABOR. This does not justify a reduction of fees, however, because the three alternative claims were based on the same set of facts as the first amendment claim, on which CABOR fully prevailed. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 (lawsuit asserting related legal theories based on a common core of facts "cannot be viewed as a series of discrete claims"). Rather,

[i]n these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative grounds for a desired outcome, and the court's rejection or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Id. Here, CABOR fully achieved its desired outcome, and fees in connection with time spent on alternative grounds asserted in the complaint are properly included in the award.

Second, Euclid challenges the documentation offered by CABOR, arguing that it does not provide enough detail. "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Although counsel is not expected to record in great detail how each minute of the day is spent, the general subject matter should be identified. Id. at 437 n. 12, 103 S.Ct. at 1941 n. 12. The documentation "must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended in the prosecution of the litigation." United Slate, Tile & Composition Roofers v. G & M Roofing, 732 F.2d 495, 502 n. 2 (6th Cir.1984).

Here, although counsel specified the general subject matter of tasks performed, the billing records, which itemize time on a daily basis, rather than by task, make it impossible to determine the amount of time spent on each task. Because numerous entries are "lumped" together under one total, "the court is left to approximate the amount of time which should be allocated to each task," In re Olson, 884 F.2d 1415, 1428 (D.C.Cir. 1989), and is unable to determine the reasonableness of many of the hours expended. Furthermore, this "lumping" makes it more difficult to evaluate the reasonableness of the flat rates charged on appeal, since it is more difficult to ascertain the precise nature of the work on which those rates are based. The total request is reduced by 10% for this insufficient documentation. See, e.g., id. (reducing lodestar by 10% for insufficient documentation and excessive conferences); Walker v. Coughlin, 909 F.Supp. 872, 881 (W.D.N.Y.1995) (15% reduction for inadequate documentation); Connecticut Hosp. Ass'n v. O'Neill, 891 F.Supp. 687, 691 (D.Conn.1994) (10% reduction for vague entries); Ragin v. Harry Macklowe Real Estate Co., 870 F.Supp. 510, 520 (S.D.N.Y.1994) (30% reduction for inadequate documentation and duplicative claims).⁵

Third, Euclid argues that many of the hours expended by Hahn Loeser are excessive and duplicative and should thus be excluded from the calculation. The Court notes at the outset that this was a complex first amendment case involving nine plaintiffs, spanning over four years, and culminating in a victory with wide-ranging impact on the first amendment rights of individuals in communities in and beyond Euclid. Such an action should result in a significant award to plaintiffs. Moreover, Euclid defended the action in an extremely litigious posture which necessitated hours and hours of extra work for counsel.⁶ "[D]efense counsel `cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.'" Knop v. Johnson, 712 F.Supp. 571, 578 (W.D.Mich.1989) (quoting City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)).

Even with this in mind, however, after a detailed review of the billing records, the Court finds numerous instances of excessive and duplicative billing by both attorneys and paralegals. For example, the record indicates that before the complaint was filed, there were no less than thirty intra-office conferences between attorneys, generally billed to two or more attorneys. Although counsel is expected to undertake a thorough review of the facts and the law before filing a complaint, the Court finds over thirty such conferences to be excessive, especially when many are described simply as "regarding status." See, e.g., In re Olson, 884...