Rolland v. Romney, CIV.A. 98-30208-KPN.

• Decision Date: 20 November 2003
• Docket Number: No. CIV.A. 98-30208-KPN.,CIV.A. 98-30208-KPN.
• Parties: Loretta ROLLAND, et al., Plaintiffs v. W. Mitt ROMNEY, et al., Defendants
• Court: U.S. District Court — District of Massachusetts

292 F.Supp.2d 268

Loretta ROLLAND, et al., Plaintiffs v. W. Mitt ROMNEY, et al., Defendants

No. CIV.A. 98-30208-KPN.

United States District Court, D. Massachusetts.

November 20, 2003.

Richard D. Belin, Foley Hoag LLP, Boston, MA, Cathy E. Costanzo, Matthew Engel, Northampton, MA, Nima R. Eshghi, Hale & Dorr Legal Services Center of Harvard Law School, Jamaica Plain, MA, Christine M. Griffin, Frank J. Laski, Boston, MA, Steven J. Schwartz, Northampton, MA, Stacie B. Siebrecht, Boston, MA, for Plaintiffs.

Kristi A. Bodin, Office of Attorney General, Springfield, MA, Rosemary S. Gale, Attorney General's Office, William W. Porter, Attorney General's Office, Ginny Sinkel, Attorney General's Office, Boston, MA, for Defendants.

James E. Breslauer, Lawrence, MA, Phillip Kassel, Daniel S. Manning, Boston, MA, J. Paterson Rae, Springfield, MA, John Reinstein, Allan G. Rodgers, Boston, MA, for Interested Parties.

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS' MOTION FOR FOURTH AWARD OF ATTORNEYS' FEES AND COSTS (Document No. 357)

NEIMAN, United States Magistrate Judge.

Presently before the court is Plaintiffs' request for attorneys' fees totaling $923,869 plus costs. Defendants do not oppose the request for costs but do contend that the court should award no more than $546,892 in fees. Defendants assert, in part, that hours claimed for "monitoring" implementation of the parties' settlement agreement, as opposed to "enforcement litigation" in which Plaintiffs prevailed, are not compensable after the Supreme Court's decision in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Defendants also assert that the hours claimed by Plaintiffs are excessive.

For the reasons which follow, the court will award Plaintiffs $781,496 in fees. It will also accept the parties' agreement with regard to the amount Plaintiffs should receive in costs.

I. BACKGROUND

The history of this litigation is best understood through the court's rulings on Plaintiffs' first two motions for attorneys' fees. See Rolland v. Cellucci, 151 F.Supp.2d 145 (D.Mass.2001); Rolland v. Cellucci, 106 F.Supp.2d 128 (D.Mass.2000). Of more recent vintage is Plaintiffs' third motion for fees filed on August 27, 2002, which covered the period from January 1 through May 31, 2001. By its own terms the third request, which sought $71,122, was limited to "monitoring" activities. It did not include efforts related to litigation during that same time period, in particular Plaintiffs' motion for injunctive relief.

Just prior to Plaintiffs' third motion for fees, Defendants filed an appeal of the court's May 3, 2002 order regarding active treatment, among other matters. Given the pendency of the appeal and urging the court to avoid a piecemeal approach, Defendants moved to strike Plaintiffs' third motion for fees as premature. The court denied Defendants' motion and required that they supplement their opposition to Plaintiffs' fee request.

Soon after the fee issue was joined, however, Defendants' appeal was heard by the First Circuit Court of Appeals. On January 28, 2003, the Court of Appeals affirmed this court's decision. See Rolland v. Romney, 318 F.3d 42 (1st Cir.2003). Soon thereafter, this court, having not yet ruled on Plaintiffs' third motion for fees, indicated its preference to address the issue of fees, by then no doubt growing, in one proceeding. Accordingly, the court denied Plaintiffs' third motion for fees without prejudice and ordered that they file a new application covering both calendar years 2001 and 2002. It is that application which is presently before the court.

Several points should be noted before discussing the merits of Plaintiffs' motion. First, as indicated, the parties have reached agreement on the costs to be reimbursed by Defendants. Second, in an effort to resolve as much of the motion as possible, the parties have agreed upon the hourly rates which apply.¹ Third, Plaintiffs' fee request includes time expended in response to Defendants' appeal. A request for such fees was filed with the Court of Appeals with a suggestion that it be remitted to this court. Defendants formalized that suggestion in a motion, granted by the Court of Appeals on May 15, 2003. Hence, it is this court's responsibility to address fees claimed by Plaintiffs for both appellate and non-appellate work from January 1, 2001, through December 31, 2002.

II. DISCUSSION

Defendants argue that, under Buckhannon, Plaintiffs are not entitled to fees for activities related to monitoring the settlement agreement. In addition, Defendants contend that the total number of hours claimed by Plaintiffs—3,491 hours allocated amongst seven attorneys and 1,905 paralegal hours—is out of proportion to the activity in the case during the two years at issue. In essence, Defendants claim that Plaintiffs seek very close to the amount awarded on their first fee application, $986,810, for a much narrower range of activity. Because of its import, Defendants' Buckhannon argument will be addressed first.

A. FEES FOR MONITORING

In their third fee request (which is now part of the consolidated request), Plaintiffs sought fees in the amount of $71,122 exclusively for time from January 1 through May 31, 2001, devoted to monitoring implementation of the settlement agreement. Although Plaintiffs do not break out such "monitoring" in their fourth request for fees—for the period of June 1, 2001 through December 31, 2002—their latest request no doubt includes additional time for such activities.

Defendants argue that monitoring is not compensable because Plaintiffs are not "prevailing parties" as to such work under Buckhannon. See id., 532 U.S. at 604, 121 S.Ct. 1835 (limiting "prevailing party" status to those who succeed in obtaining an "enforceable judgment[] on the merits [or a] court-ordered consent decree"). Defendants maintain that the Supreme Court specifically declined to extend prevailing party status to settlements that "do not entail the judicial approval and oversight involved in consent decrees." Id. at 604 n. 7, 121 S.Ct. 1835.

This is the first time this court has had an opportunity to fully address Buckhannon. As the parties are aware, Buckhannon was decided on May 29, 2001, well after this court made its first award of fees on June 8, 2000. In any event, the parties had stipulated in their settlement agreement that Plaintiffs were entitled to reasonable fees for all work performed prior to the settlement. See Rolland, 106 F.Supp.2d at 131. Similarly, the parties did not have an opportunity to address Buckhannon before Plaintiffs' second motion for fees was decided by the court on July 23, 2001. See Rolland, 151 F.Supp.2d at 155 n. 4. Still, the parties agreed, at that time, that reasonable post-settlement monitoring efforts were compensable. Id. at 153.

In opposing Plaintiffs' present motion, however, Defendants have done a volte face. In essence, they no longer concede that Plaintiffs' post-settlement monitoring is compensable. Rather, they argue that, under Buckhannon, Plaintiffs cannot be deemed prevailing parties with respect to such work. In other words, Defendants assert that neither the three hundred plus hours claimed for monitoring in Plaintiffs' third request for fees nor any monitoring hours included in the present, fourth request, should be compensated as a matter of law.

Broadly speaking, Buckhannon rejected the catalyst theory as a basis for obtaining attorneys' fees. See Richardson v. Miller, 279 F.3d 1, 4 (1st Cir.2002) ("[W]e are constrained to follow the Court's broad directive [in Buckhannon] and join several of our sister circuits in concluding that the catalyst theory may no longer be used to award attorney's fees under the [Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988].") As Defendants point out, the Court drew a distinction between "judgments on the merits" or "settlement agreements enforced through a consent decree," where attorneys' fees are compensable, and catalytic success without any "judicially sanctioned change in the legal relationship of the parties," where attorneys' fees are not compensable. Buckhannon, 532 U.S. at 604-05, 121 S.Ct. 1835.

The implications of Defendants' arguments to the contrary, there is little doubt that the parties' settlement agreement here is judicially enforceable. First, the agreement itself provides for such enforcement. See Rolland v. Cellucci, 191 F.R.D. 3, 8 (D.Mass.2000) (describing enforcement process of the settlement agreement). Second, in accord with its terms, the settlement agreement was approved and entered as a court order following a fairness hearing. See id. at 15-16. Many courts since Buckhannon have consistently allowed attorneys' fees in similar contexts. See, e.g., Richard S. v. Dep't of Developmental Services, 317 F.3d 1080, 1086-87 (9th Cir.2003); Truesdell v. Philadelphia Housing Auth., 290 F.3d 159, 165-66 (3d Cir.2002); American Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1320-21 (11th Cir.2002).

To be sure, as Defendants point out, paragraph twenty-seven of the settlement agreement precludes its direct enforcement by an action for contempt or breach of contract. Pursuant to paragraph thirty-two, however, the court can— and, indeed, did—enforce its provisions through injunctive and other relief. This is more than enough to make the agreement judicially enforceable. See Roberson v. Giuliani, 346 F.3d 75, 83 (2d Cir.2003) ("[E]ven if ... a court [is precluded] from using its contempt power in the first instance to enforce a private settlement agreement over which it has retained jurisdiction, we do not think this is significant enough to deprive plaintiffs of prevailing party status."). Moreover, there is no question that the court has the power to enforce by contempt any post-settlement judicial orders. See generally Rolland v. Romney, 273 F.Supp.2d 140 (D.Mass. 2003). See also Root v....