Fund v. Reynolds, 4:17-cv-00362–JEG-HCA

• Decision Date: 11 April 2019
• Docket Number: 4:17-cv-00362–JEG-HCA
• Parties: ANIMAL LEGAL DEFENSE FUND; Iowa Citizens for Community Improvement; Bailing Out Benji; People for the Ethical Treatment of Animals, Inc.; and Center for Food Safety, Plaintiffs, v. Kimberly REYNOLDS, Governor; Tom Miller, Attorney General of Iowa; and Drew B. Swanson, Montgomery County Attorney, Defendants.
• Court: U.S. District Court — Southern District of Iowa

385 F.Supp.3d 840

ANIMAL LEGAL DEFENSE FUND; Iowa Citizens for Community Improvement; Bailing Out Benji; People for the Ethical Treatment of Animals, Inc.; and Center for Food Safety, Plaintiffs,

v.Kimberly REYNOLDS, Governor; Tom Miller, Attorney General of Iowa; and Drew B. Swanson, Montgomery County Attorney, Defendants.

4:17-cv-00362–JEG-HCA

United States District Court, S.D. Iowa, Central Division.

Signed April 11, 2019

Rita N. Bettis Austen, Aclu of Iowa Foundation, Des Moines, IA, Leslie A. Brueckner, Pro Hac Vice, Public Justice, P.C., Oakland, CA, Alan K. Chen, Pro Hac Vice, Justin F. Marceau, Pro Hac Vice, University of Denver Sturm College of Law, Denver, CO, Kelsey Rinehart Eberly, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, George A. Kimbrell, Pro Hac Vice, Center for Food Safety, Portland, OR, Matthew Glen Liebman, Pro Hac Vice, Cristina Rachel Stella, Pro Hac Vice, Animal Legal Defense Fund, Cotati, CA, David Samuel Muraskin, Pro Hac Vice, Public Justice, P.C., Washington, DC, Matthew Strugar, Pro Hac Vice, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiffs.

Jacob John Larson, Jeffrey S. Thompson, Attorney General of Iowa, Des Moines, IA, for Defendants.

ORDER

JAMES E. GRITZNER, Senior Judge

This matter comes before the Court on a Motion for an Award of Attorneys' Fees and Costs¹ filed by Plaintiffs. ECF No. 93. Defendants have filed objections. ECF No. 97. Neither party requested a hearing on the Motion, nor does the Court find a hearing is necessary. The matter is fully submitted and ready for disposition.

I. BACKGROUND

Plaintiffs filed this case on October 10, 2017, bringing claims under the First and Fourteenth Amendments. ECF No. 1. On Defendants' motion to dismiss for failure to state a claim, the Court disposed of Plaintiffs' Fourteenth Amendment equal protection claim. Animal Legal Def. Fund v. Reynolds, 297 F. Supp. 3d 901 (S.D. Iowa 2018). On January 9, 2019, the Court entered an order on the merits of the parties' cross-motions for summary judgment on the remaining claims, in which the Court granted Plaintiffs' Motion for Summary Judgment and denied Defendants' Motion for Summary Judgment. Animal Legal Def. Fund v. Reynolds, 353 F. Supp. 3d 812 (S.D. Iowa 2019). The Court found Iowa Code § 717A.3A failed to survive strict and intermediate scrutiny under the First Amendment and dismissed Plaintiffs' Fourteenth Amendment due process claim as moot.

On February 14, 2019, the Court entered an order declaring § 717A.3A facially unconstitutional and permanently enjoining further enforcement of the statute. ECF No. 86. Final Judgment was entered on February 15, 2019. ECF No. 87. On February 20, 2019, Defendants filed notice of appeal, ECF No. 88, which the Eighth Circuit Court of Appeals docketed on February 22, 2018, case number 19-1364.

On February 28, 2019, Plaintiffs filed the Motion for an Award of Attorneys' Fees.

ECF No. 93. Defendants filed objections on March 13, 2019. ECF No. 97. Plaintiffs replied to Defendants' objections on March 18, 2019. ECF No. 100.

II. STANDARD FOR THE MOTION

Plaintiffs seek an award of attorney fees as prevailing parties pursuant to 42 U.S.C. § 1988, Federal Rule of Civil Procedure 54, and Local Rule 54A. There is no dispute that Plaintiffs are prevailing parties in this action. Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 764-65 (8th Cir. 2008) (citing Riverside v. Rivera, 477 U.S. 561, 585, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) ) (noting plaintiffs who obtained permanent injunction in First Amendment action were prevailing parties); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("A plaintiff must be a ‘prevailing party’ to recover an attorney's fee under § 1988.").

The starting point in calculating a reasonable fee award is to multiply the number of fair and reasonable hours billed by a reasonable billable hourly rate. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. This "lodestar" calculation is regarded as reasonable compensation. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). A reasonable billable hourly rate is "usually the ordinary rate for similar work in the community where the case has been litigated." Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001) ; see also H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (same).

The Court is tasked with determining the relevant legal market for determining a reasonable rate. Blum v. Stenson, 465 U.S. 886, 895-96 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Upon a determination of the relevant market, the burden is typically on the party seeking compensation to satisfactorily demonstrate a prevailing rate for similar services in that market. Id. at 895-96 n.11, 104 S.Ct. 1541. "In a case where the plaintiff does not use local counsel, the district court is not limited to the local hourly rate, if the plaintiff has shown that, in spite of his diligent, good faith efforts, he was unable to find local counsel able and willing to take the case." Snider v. City of Cape Girardeau, 752 F.3d 1149, 1159-60 (8th Cir. 2014) (citing Emery, 272 F.3d at 1048 ). The district court has "flexibility" to "consider[ ] the prevailing rate in the market from which attorneys have traveled where the attorneys [a]re ‘leaders in the field’ with ‘extensive experience,’ ‘able to handle the case in a shorter length of time than a local lawyer, without comparable experience, would have needed.’ " Miller v. Dugan, 764 F.3d 826, 831 (8th Cir. 2014) (quoting Planned Parenthood, Sioux Falls Clinic v. Miller, 70 F.3d 517, 519 (8th Cir. 1995) (per curiam)). The Court has broad discretion to determine reasonable fees. See Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).

III. DISCUSSION

Plaintiffs request fees for work on this case to date, including work on this motion. Defendants dispute the requested hourly rates for three of Plaintiffs' seven attorneys and the reasonableness of the number of hours billed for this motion. Defendants do not dispute Plaintiffs' request that a 25% enhancement be applied to the lodestar calculation of fees, nor do they dispute Plaintiffs' hourly rates requested as to the other four attorneys. Other than the dispute over the number of hours billed for this motion, the parties do not dispute the number of hours Plaintiffs billed.

A. Applicable Hourly Rates

For all hours worked prior to the instant motion, Plaintiffs request an unadjusted total of $154,149.50 in fees for the work of seven attorneys.² Plaintiffs seek out-of-market rates for three attorneys and Des Moines rates for four attorneys:

 Name Experience Hours Rate Unadjusted Market
                Total
                Matthew Strugar        14 years       168.4     $550     $92,620.00      Los Angeles-based rate
                  Alan Chen              33 years       21.2      $650     $13,780.00      Denver-based rate
                  Justin Marceau         14 years       27.8      $550     $15,290.00      Denver-based rate
                  Rita Bettis Austen     8 years        41.7      $300     $12,510.00      Des Moines-based rate
                  Kelsey Eberly          4 years        29.9      $230     $6,877.00       Des Moines-based rate
                  Cristina Stella        7 years        29.5      $275     $8,112.50       Des Moines-based rate
                  George Kimbrell        14 years       12.4      $400     $4,960.00       Des Moines-based rate
                  Merits Totals 330.9 $154,149.50
                

Pls.' Br. Mot. Award Attys' Fees 15-16, ECF No. 93-1. Bettis Austen is the only practicing attorney of record in this case who is based in Des Moines. Although attorneys Eberly, Stella, and Kimbrell are not based in Des Moines,³ they each request a billable hourly-rate based on the Des Moines market.

In support of the claimed fees, counsel have provided the Court with affidavits regarding each attorney's qualifications, their contributions to this case, the hourly rates they normally charge, and—where applicable—the reduced rates they are seeking here.⁴ The record also contains additional affidavits and evidence regarding prevailing fees for like work in all markets at issue. Defendants do not object to fees requested for Bettis Austin, Eberly, Stella, and Kimbrell, and the Court does not find them excessive for attorneys of their experience, skill, and expertise for this area of practice in Des Moines.

Defendants do, however, object to the out-of-market rates sought by three of Plaintiffs' attorneys. To support the request, Plaintiffs argue Chen, Marceau, and Strugar each have specialized experience in First Amendment law related to undercover investigations and intentional false statements. Arguing the relevant legal market is Des Moines, Defendants challenge the fee claims for Chen, Marceau, and Strugar because their claimed rates are equivalent to, or based on, out-of-market rates inapplicable in Des Moines. Defendants assert the rate of $300 per hour claimed by Bettis Austen should guide the Court to reduce the rates of Chen, Marceau, and Strugar to no more than $300-$400 per hour.

Defendants argue Bettis Austen's fee claim of $300 per hour contradicts "any notion that local community rates were not ‘sufficient to attract experienced counsel.’ " Defs.' Br. 4, ECF No. 97 (quoting Little Rock Sch. Dist. v. Arkansas, 674 F.3d 990, 997-98 (8th Cir. 2012) (per curiam)). They cite Bettis Austen's local experience in First Amendment litigation as proof Plaintiffs have failed to establish "the claimed national market rates were required to attract experienced civil rights counsel." Defs.' Br. 5, ECF No. 97 (quoting Little Rock Sch. Dist., 674 F.3d at 998 ). Plaintiffs argue Chen, Marceau, and Strugar "brought specialized expertise to this litigation that was not available in the Des Moines legal market or anywhere else." Pls. Reply Br. 3, ECF No. 100.

Neither the law, nor the record, prevent this Court from considering whether Chen, Marceau, and Strugar brought "extensive experience" to this case to warrant the requested out-of-market rates. In the Eighth Circuit, the...