Ramirez-Lluveras v. Pagan-Cruz
| Citation | 65 F.Supp.3d 308 |
| Decision Date | 18 November 2014 |
| Docket Number | Civil No. 08–1486 FAB. |
| Parties | Evelyn RAMIREZ–LLUVERAS, et al., Plaintiffs, v. Javier PAGAN–CRUZ, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Carlos Concepcion–Castro, Concepcion Law Offices, Guaynabo, PR, Judith Berkan, Mary Jo Mendez–Vilella, Berkan & Mendez, San Juan, PR, for Plaintiffs.
Eliezer Alberto Aldarondo–Lopez, Michael C. McCall, Simone Cataldi–Malpica, Aldarondo & Lopez Bras, PSC, Damaris Delgado–Vega, Guaynabo, PR, Michael S. Corona–Munoz, Trujillo Alto, PR, Pedro J. Landrau–Lopez, San Juan, PR, Carlos E. Cardona–Fernandez, Carolina, PR, for Defendants.
A district court may refer a pending motion to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(a) ; Loc. Rule 72(b). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge's report. Loc. Rule 72(d). See 28 U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Ramos–Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R.2010) ; Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987). In conducting its review, the court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(a), (b)(1) ; Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) ; Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez–Mejias v. General Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125–126 (D.R.I.2004) ).
On October 23, 2014, the United States magistrate judge issued a thorough and well-supported Report and Recommendation (“R & R”) (Docket No. 512), recommending that plaintiffs' motions for attorney's fees and costs (Docket Nos. 475 and 477) be granted and that their fees and litigation expenses be awarded as requested. The parties had until November 10, 2014 to object to the R & R. Neither party did. Therefore, the plaintiffs and the defendants have waived the right to further review in the district court. Davet, 973 F.2d at 30–31.
The Court has made an independent examination of the entire record in this case and ADOPTS the magistrate judge's findings and recommendations.
Accordingly, plaintiffs, as prevailing parties, are awarded attorney's fees in the amount of $399,122.50, plus litigation expenses in the amount of $12,947.28 incurred pursuant to 28 U.S.C. § 1988 and not recoverable as costs pursuant to 28 U.S.C. § 1923 for a total of $412,069.28.
Plaintiffs are the surviving family members of Miguel A. Caceres–Cruz who was killed by an off-duty Puerto Rico police officer as the result of an unwarranted shooting. The sad and horrible story need not be retold here. See Ramirez–Lluveras v. Rivera–Merced, 759 F.3d 10, 13–14 (1st Cir.2014) ; Ramirez–Lluveras v. Pagan–Cruz, 919 F.Supp.2d 214, 216–17 (D.P.R.2013) ; Ramirez–Lluveras v. Pagan–Cruz, 862 F.Supp.2d 82, 87–88 (D.P.R.2012) ; Ramirez–Lluveras v. Pagan–Cruz, 833 F.Supp.2d 165, 170–71 (D.P.R.2011) ; Ramirez–Lluveras v. Pagan–Cruz, 833 F.Supp.2d 151, 155 (D.P.R.2011).
This matter is before the court on unopposed motion for attorney's fees and litigation expenses filed by prevailing plaintiffs on November 26, 2012, as corrected two days later. (Docket Nos. 475, 477.) The award is requested against Javier Pagan–Cruz, the killer, and on-scene police officers Carlos Sustache–Sustache and Zulma Diaz, against whom a verdict was announced on November 9, 2012. (Docket No. 464). The verdict was not appealed. An additional motion was filed by prevailing plaintiffs on December 11, 2012 representing additional expenses as part of the request for attorney's fees. (Docket No. 479). A ruling on the motion was deferred pending a related appeal. Prevailing plaintiffs resubmitted the request for attorney's fees on October 2, 2014. (Docket No. 506).
The matter of attorney's fees and litigation expenses was referred to me for report and recommendation also on October 2, 2014 (Docket Nos. 508, 509). For the reasons set forth below, I recommend that plaintiffs' request for attorney's fees and litigation expenses, as supplemented and reaffirmed (Docket Nos. 475, 479, 506) be GRANTED in its entirety, and that prevailing plaintiffs be awarded attorneys fees representing hourly rates in the amount of $399,122.50, in addition to litigation expenses incurred under 28 U.S.C. § 1988, and not recoverable as costs under 28 U.S.C. § 1923, in the amount of $12,947.28 for a total of $412,069.78.
As a general rule litigants must pay their “own attorney's fees and expenses.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ; see also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir.2001). However, the court “may allow the prevailing party, except the United States, a reasonable attorney's fee as part of the costs.” Id. A party “prevails” on their claim “ ‘if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir.1978) ). It is indisputable that plaintiffs prevailed in this case against the three defendants which are the focus of the motion for attorney's fees. (A multi-million dollar verdict reflects that success). Such fees are authorized under the Civil Rights Act of 1871, 42 U.S.C. § 1988. See White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 451–52, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) ; Esso Standard Oil Co. (Puerto Rico) v. Lopez Freytes, 577 F.Supp.2d 553, 556 (D.P.R.2008) ; Tejada– Batista v. Fuentes–Agostini,
263 F.Supp.2d 321, 326 (D.P.R.2003).
The method by which this district court determines the “reasonableness” of such fees is the “lodestar method.” Esso Standard Oil Co. (Puerto Rico) v. Lopez Freytes, 577 F.Supp.2d at 556–57, citing Bogan v. City of Boston, 489 F.3d 417, 426 (1st Cir.2007) ; see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 10 Federal Practice & Procedure § 2675.1 (3d ed.2008) ; McDonough v. City of Quincy, 353 F.Supp.2d 179, 183 (D.Mass.2005) (); Esso Standard Oil Co. (Puerto Rico) v. Lopez Freytes, 577 F.Supp.2d at 556–57. Under the lodestar method, “the number of hours productively spent [are multiplied] by a reasonable hourly rate to calculate a base figure.” Torres–Rivera v. O'Neill–Cancel, 524 F.3d 331, 336 (1st Cir.2008) (citing Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1933 ). “In order to receive the proper award of attorney's fees, a prevailing party must submit with its motion evidence to support the number of hours and rates sought, and show that the rates being sought are comparable to those in the community.” Latin American Music Co. v. Archdiocese of San Juan of the Roman Catholic and Apostolic Church, 488 F.Supp.2d 33, 37 (D.P.R.2007) (citing Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. 1933 ); see Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).
In determining the time reasonably expended by the prevailing party's counsel, the court “scrutinizes ‘the individual fees for the contemporaneousness and sufficient detail required to justify the charge.’ ” Janney Montgomery Scott LLC v. Tobin, 692 F.Supp.2d 192, 196 (D.Mass.2010) (quoting Cerqueira v. Am. Airlines, Inc., 484 F.Supp.2d 241, 246 (D.Mass.2007), vacated on other grounds, 520 F.3d 1, 20 (1st Cir.2008) ). Time spent on “[e]xcessive, duplicative, or unnecessary legal tasks” may not be taken into account when calculating the fee. Batista–Rivera v. Gonzalez, 525 F.Supp.2d 255, 259 (D.P.R.2007) (citing Tejada–Batista v. Fuentes–Agostini, 263 F.Supp.2d at 326–27 ). “After determining the time reasonably expended by the prevailing party's counsel, the court must focus on the rates to be applied to those hours.” United States v. One Rolex 18k Gold Watch with light brown crocodile style wrist band, 696 F.Supp.2d 143, 146 (D.P.R.2010) ; see Torres–Rivera v. O'Neill–Cancel, 524 F.3d at 336–37. The “hourly rates depend on those prevailing in the community by lawyers with comparable skill, experience and reputation, as well as whether the time was invested in-court or out-of-court.” Rivera–Quintana v. Commissioner of Social Sec., 692 F.Supp.2d 223, 227 (D.P.R.2010) (citing Guillemard–Ginorio v. Contreras, 603 F.Supp.2d 301, 311–12 (D.P.R.2009) ). “Once calculated, ‘the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances.’ ” Diffenderfer v. Gomez–Colon, 606 F.Supp.2d 222, 226 (D.P.R.2009) (quoting Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992) ). These include: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney(s) due to acceptance of ...
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