Diffenderfer v. Gomez-Colon, Civil No. 08-1918 (JAF).

• Decision Date: 01 April 2009
• Docket Number: Civil No. 08-1918 (JAF).
• Citation: 606 F.Supp.2d 222
• Parties: Sylvia DIFFENDERFER, et al., Plaintiffs, v. Ramon E. GÓMEZ-COLÓN, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

606 F.Supp.2d 222

Sylvia DIFFENDERFER, et al., Plaintiffs, v. Ramon E. GÓMEZ-COLÓN, et al., Defendants.

Civil No. 08-1918 (JAF).

United States District Court, D. Puerto Rico.

April 1, 2009.

Opinion Granting Reconsideration in Part April 24, 2009.

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Claudio Aliff-Ortiz, Eliezer Alberto Aldarondo-Lopez, Michael C. McCall, Sheila J. Torres-Delgado, Simone Cataldi-Malpica, Eliezer Aldarondo-Ortiz, Ivan M. Castro-Ortiz, Aldarondo & Lopez Bras, Guaynabo, PR, for Plaintiffs.

Iris Alicia Martinez-Juarbe, Department of Justice, Noel S. Gonzalez-Miranda, Noel S. Gonzalez Miranda Law Office, San Juan, PR, Carmen Edith Torres-Rodriguez, Jorge Martinez-Luciano, Emil J. Rodriguez-Escudero, Pedro Ortiz Alvarez Law Offices, Juan Jose Nolla-Acosta, Urb. Valle De Andalucia, Ponce, PR, for Defendants.

OPINION AND ORDER

JOSÉ ANTONIO FUSTÉ, Chief Judge.

Plaintiffs, Sylvia Diffenderfer and Robert McCarroll, brought this action on behalf of themselves and as representatives of a class of eligible voters in Puerto Rico who do not speak Spanish, against Defendants, Ramón Gómez-Colón, President of the State Electoral Commission of Puerto Rico (SEC); Gerardo Cruz-Maldonado, Electoral Commissioner of the Popular Democratic Party (PDP); Juan Dalmau-Rodríguez, Electoral Commissioner of the Puerto Rican Independence Party (PIP); Nelson Rosario-Rodríguez, Electoral Commissioner of the Puerto Ricans for Puerto Rico Party (PPR); and Walter Vélez-Rodríguez, Secretary of the State Electoral Commission of the Commonwealth of Puerto Rico, challenging Puerto Rico's Spanish-only ballot system under 42 U.S.C. § 1983. Docket No. 1. On September 2, 2008, following a hearing, we issued an Opinion and Order granting the injunctive relief sought by Plaintiffs and requiring Defendants to print the ballots in both English and Spanish. Docket No. 49. On September 4, 2008, the First Circuit denied Cruz-Maldonado's appeal. Docket No. 56. We subsequently held two more hearings on September 5 and 10, 2008, to enforce compliance with our injunction. Docket Nos. 61, 62, 77.

Plaintiffs now seek compensation for $122,988.75 in attorney's fees based on 663.5 hours of work. Docket Nos. 81, 82. Cruz-Maldonado opposes, Docket No. 86, Gómez-Colón and Vélez-Rodríguez oppose, Docket No. 93, and Plaintiffs reply, Docket No. 96.

I. Analysis

A. Gómez-Colón and Vélez-Rodríguez' Opposition

Gómez-Colón and Vélez-Rodríguez argue that Plaintiffs have sought attorney's fees for duplicative and excessive hours.¹ Docket No. 93-1. Plaintiffs counter that this was a complex case, and that they are entitled to full compensation for all time spent by their six attorneys, Eliezer Aldarondo-Ortiz, Claudio Aliff-Ortiz, Iván Castro-Ortiz, Michael Craig McCall, Sheila Torres-Delgado, and Eliezer Aldarondo-López, in litigating before the District Court and the Court of Appeals. Docket No. 96.

Plaintiffs seek attorney's fees pursuant to 42 U.S.C. § 1988, which provides that in an action to enforce § 1983, we may allow the prevailing party "a reasonable attorney's fee." We have "great discretion in deciding what claimed legal services should be compensated." Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir. 1993). Plaintiffs who substantially prevail may not necessarily recover the totality of their requested fees. See Culebras Enters. Corp. v. Rivera-Ríos, 846 F.2d 94, 102 (1st Cir.1988). Instead, we must calculate a reasonable fee award using the "lodestar" method. Id. "In implementing this lodestar approach, the judge first calculates the time counsel spent on the case, subtracts duplicative, unproductive, or excessive hours, and then applies prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved)." Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). Once calculated, "the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances." Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992).

We address Gómez-Colón and Vélez-Rodríguez' arguments for downward reductions in the fee award in turn. We note that Gómez-Colón and Vélez-Rodríguez have helpfully provided us with a breakdown of hours and fees devoted to each task that they challenge. See Docket No. 93. Because Plaintiffs have not questioned the particulars of this breakdown, we use it as a basis for calculating the fee award.

1. "Fees on Fees"

Gómez-Colón and Vélez-Rodríguez argue that both the hourly rate and hours billed for the fee application are excessive. Docket No. 93-1. We may award attorney's fees for time reasonably expended in connection with fee applications; however, since these applications require less legal analysis, we may fairly apply a reduced rate. Brewster, 3 F.3d at 493-94. Therefore, we award time for the fee application at 75% of the attorney's regular billing rate. We also find that Torres-Delgado's claimed time for this work was excessive. Her time sheet lists 25.25 hours worth of work for the task of "review of time sheets and files for petition of attorneys fees." See Docket No. 93-2. This appears excessive, and we reduce it by 50%. We find the time otherwise spent in preparation of the fee application to be reasonable.

Accordingly, we award $2,493.75² for Torres-Delgado's time and $427.5³ for Aldarondo-Ortiz' time, for a total of $2,921.25. This is a reduction of $2,723.75 from the claimed fee of $5,645 for these services.

2. Researching and Drafting Complaint and Brief

Gómez-Colón and Vélez-Rodríguez further argue that the time spent researching and drafting the complaint and brief are excessive. Docket No. 93-1. However, we find that the issues involved in the suit were both novel and complex and it was, therefore, appropriate for Plaintiffs' counsel to spend a substantial amount of time conducting legal research. We, therefore, permit $33,630.25 in fees for the drafting of the complaint and brief.

3. Meeting Among the Attorneys

Gómez-Colón and Vélez-Rodríguez argue that we should not award fees for the 32.75 man-hours spent in meetings among Plaintiffs' five attorneys. Docket No. 93-1. As stated above, we believe that this case presented novel and complex issues, rendering it appropriate for Plaintiffs' counsel to spend a substantial amount of time in strategy meetings. We, therefore, do not find the 32.75 man-hours in meetings to be inappropriate and, accordingly, award $7,082.50 in attorney's fees for the time spent in strategy meetings.

4. Meeting with Plaintiffs

Gómez-Colón and Vélez-Rodríguez argue that we should reduce the fees sought for the twenty-nine man-hours in meetings between counsel and Plaintiffs. Docket No. 93-1. Counsel for Plaintiffs spent six man-hours in an initial interview with Plaintiffs, 7.5 man-hours in a second interview, three man hours in a third interview, and 12.5 man-hours in preparation of testimony. See Docket No. 93-2. As the facts in this case were clear and uncontroverted, we find that only the initial interview and the preparation of testimony are compensable. Accordingly, we award $2,777.50⁴ for the meetings with Plaintiffs. This represents a $3,132.50 reduction from the claimed fee of $5,910 for these services.

5. Meeting with Attorney Meléndez

Gómez-Colón and Vélez-Rodríguez argue that we should reduce the fee sought for the sixteen man-hours spent by Plaintiffs' counsel in preparing Attorney Meléndez, an electoral commissioner, to testify. Docket No. 93-1. We agree. Meléndez' testimony, including the cross-examination, lasted only one and one-half hours, and did not require sixteen hours of preparation. We, therefore, award fees for eight total man-hours, for a total of $1700.⁵ This represents a reduction of $1,785 from the claimed fee of $3,485.

6. Reviewing Documentary Evidence

Gómez-Colón and Vélez-Rodríguez argue that the nineteen man-hours spent reviewing documentary evidence is excessive. However, they do not explain why nineteen hours is excessive for reviewing fifteen exhibits. Accordingly, we grant $4,965⁶ in fees for the time spent reviewing documentary evidence.

7. Court Time

Gómez-Colón and Vélez-Rodríguez argue that the 40.5 man-hours spent on the day of the hearing were excessive. Docket No. 93-1. Specifically, they argue, not all five attorneys needed to be present at the hearing. Id. Courts "should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism." Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.1992); see Grendel's Den, Inc., v. Larkin, 749 F.2d 945, 953 (1st Cir.1984). We agree with Gómez-Colón and Vélez-Rodríguez that two attorneys would have sufficed. Accordingly, we grant fees for the highest-billing two attorneys, Aldarondo-Ortiz and Aliff-Ortiz, for a total of $4,417.50.⁷ This represents a $4,060 reduction from the claimed fee of $8,477.50.

8. Monitoring the Media

Gómez-Colón and Vélez-Rodríguez argue that time spent monitoring the media is not time spent in litigation and is, therefore, not compensable. Docket No. 93-1. However, given the public nature of this case, public statements by Defendants might reveal information about their legal strategies. We, therefore, permit recovery of $140 in fees for media monitoring.

9. Opposing the Appeal

Gómez-Colón and Vélez-Rodríguez argue that we should not award attorney's fees for time spent opposing the appeal. Docket No. 93-1. Federal Rule of Appellate Procedure 38 provides that the court of appeals may award attorney's fees as "just damages" for frivolous appeals. See Cronin v. Town of Amesbury, 81 F.3d 257, 261 (1st Cir.1996). "Under Rule 38 the district court is not empowered to award fees for proceedings before [the Court of Appeals.]" Flip Side Prods., Inc. v. Jam Prods., Ltd., 843 F.2d 1024, 1037 (7th Cir.1988). Plaintiffs may be entitled to damages if they can...