Tozer v. City of Portland
| Docket Number | 3:22-cv-01336-AN |
| Decision Date | 30 November 2023 |
| Parties | TIANA TOZER, PHILIP RHODES, BARBARA JACOBSEN, DANE SOUTHARD, LORIEN ILENA WELCHOFF, PAULINE LONG, MARK BARNHILL, STEVE JACKSON, and STEVEN REBISHKE, Plaintiffs, v. CITY OF PORTLAND, Defendant. |
| Court | U.S. District Court — District of Oregon |
Plaintiffs Tiana Tozer, Philip Rhodes, Barbara Jacobsen, Dane Southard Lorien Ilena Welchoff, Pauline Long, Mark Barnhill, Steve Jackson, and Steven Rebishke (collectively "plaintiffs") filed this Motion for Award of Attorney Fees and Costs, ECF [30]. Defendant City of Portland ("the City") filed a response in opposition, ECF [38], and plaintiffs replied, ECF [40]. On November 15, 2023 with this Court's permission, the City filed a sur-response, ECF [46], and plaintiffs filed a sur-sur-reply, ECF [48], For the reasons outlined below, plaintiffs Motion for Award of Attorney Fees and' Costs is PARTIALLY GRANTED. Accordingly, plaintiffs are AWARDED $609,151.15 in total fees and costs.
Under Federal Rule of Civil Procedure 54(d)(1), "[u]nless a federal statute, these rules, or a court order provides otherwise, costs other than attorney's fees should be allowed to the prevailing party." Fed. R. Civ. Proc. 54(d)(1). Claims for attorney's fees "must be made by motion." Id. 54(d)(2). A motion for attorney's fees must specify the "statute, rule, or other grounds entitling the movant to the award" and "state the amount sought or provide a fair estimate of it." Id. The Americans with Disabilities Act of 1990 provides that courts may allow a prevailing party other than the United States "a reasonable attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. § 794a of the Rehabilitation Act of 1973 provides that courts may allow a prevailing party other than the United States "a reasonable attorney's fee as part of the costs." 29 U.S.C. § 794a(b).
This case was filed on September 6, 2022. Plaintiffs asserted claims for injunctive relief against the City arising out of the City's failure to maintain its sidewalks and pedestrian rights of way clear of tent encampments and debris under § 12205 of the Americans with Disabilities Act of 1990 ("the ADA") and § 794a(b) of the Rehabilitation Act of 1973. Pls.' Mot., ECF [30], at 2. Plaintiffs and the City reached a settlement requiring the City to devote resources to comply with the ADA and the Rehabilitation Act by maintaining sidewalks and pedestrian rights of way clear of obstruction. Id. In the Settlement Agreement, ECF [26], the parties agreed that the Court should determine attorney fees.
In plaintiffs' Motion for Award of Attorney Fees and Costs, Davis Wright Tremaine ("DWT") asks this Court to award $676,566.50 in attorney fees, $652.00 in costs, $26,525.50 in fees-for-fees, and $13,000.00 in expert fees, for a grand total of $716,734.00. Pls.' Mot. 2. DWT offers an across-the-board reduction in attorney fees of roughly 24.6% to reflect adjustments for fees that should not be shifted to the City and offers to use lower billing rates for two of its attorneys. Id. at 6, 15-16. The City argues that DWT seeks fees for a significant amount of unnecessary work and that it is seeking fees at unreasonably high billing rates. Def's Resp., ECF [38], at 1. The City proposes deductions to DWT's hours and would use Oregon State Bar median billing rates, asking that this Court award no more than $222,455.00 in total for plaintiffs' fees and costs. Id. at 10.
Prevailing plaintiffs are entitled to reasonable attorney fees under the ADA and the Rehabilitation Act. 42 U.S.C. § 12205; 29 U.S.C. § 794a(b). The City broadly argues that DWT's fees are unreasonable and excessive because $676,566.50 in legal fees is 1300% greater than the $50,000 in total damages that plaintiffs obtained. Def's Resp. 1. The City argues that this was a simple case which reached a settlement after only seven months and which involved ten informal meetings, three judicial settlement conferences, and no motions practice. Id.
The results achieved by the settlement are significant. Plaintiffs secured a new $20 million guaranteed funding obligation for sidewalk cleanups. Pls.' Reply, ECF [40] at 1. Plaintiffs also secured City-wide injunctive relief requiring the City to prioritize removing obstructions resulting in less than six to eight feet of pedestrian right-of-way access. Id. It would have been unreasonable for DWT to assume that this case would settle and do less research on the front end. DWT correctly points out that its initial investments researching and investigating sidewalk obstructions in Portland likely persuaded the City to negotiate a settlement. See id. at 4. The Court finds that DWT's team achieved a significant result in this litigation which merits an award for their fees and costs.
The lodestar method, which multiplies the number of hours reasonably expended on the litigation by the reasonable hourly rate, is the appropriate metric for determining reasonable attorney fees. Intel Corp. v. Terabyte Int'l, Inc., 6 F.3d 614, 622 (9th Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). After multiplying the two, the "presumptively reasonable" lodestar figure may be adjusted based upon the factors outlined in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). Here, the City argues that DWT's requested billing rates are unreasonably high and that DWT includes vague, excessive, or unrecoverable time that should be deducted. Def's Resp. 3-8. DWT disagrees, emphasizing its team's expertise in impact litigation and arguing that the City takes DWT's time entries out of context. Pls.' Reply 6-9.
The "prevailing market rate in the community is indicative of a reasonable hourly rate." Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262-63 (9th Cir. 1987). A "fee applicant has the burden of producing satisfactory evidence .. . that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Id. If a requested rate exceeds the average rate in the Oregon State Bar Economic Survey ("OSB Economic Survey"), "the burden is on the prevailing party to justify that higher rate." Chatelain v. Country Mut. Ins. Co., No. 3:15-cv-02013-MO, 2017 WL 6663901, at *6 (D. Or. Dec. 29,2017). However, courts may award higher rates where the attorney had "significant experience" litigating similar cases. See id.
The 2022 OSB Economic Survey no longer includes the 75th percentile of billing rates. Instead, it provides the mean, median, and 95th percentile. DWT provides a discussion and calculation of what the 75th percentile likely looks like in Mr. DiLorenzo's second declaration. DWT staff assumed a normal distribution and used $0 and the 95th percentile for the end points of the normal distribution curve. 2d Deci, of John DiLorenzo ("2d Lorenzo Deci."), ECF [44], at ¶ 29. The City does not object to DWT's calculation. Def.'s Sur-Resp., ECF [46], at 2.
DWT seeks an award of attorney fees for four attorneys. The City asks that the Court adjust DWT's rates to match the median rates in the 2022 OSB Economic Survey. Id. at 2-3. The billing rate for each DWT attorney is addressed in turn.
Mr. DiLorenzo is a partner at DWT and has been practicing law for forty-three years. Deci, of John Dilorenzo ("DiLorenzo Deci."), ECF [31], at ¶¶ 1-2, Ex. A. Mr. DiLorenzo has experience - litigating public impact cases, such as County of Linn v. State of Oregon, No. 16CV07708 (Linn. Co. Cir. Ct. 2016), Anderson v. City of Portland, No. 1112-15957 (Mult. Co. Cir. Ct. 2011), Masonry Building Owners of Oregon v. Ted Wheeler, 394 F.Supp.3d 1279 (D. Or. 2019), and more. Id. ¶ 4. The City argues that Mr. DiLorenzo and his team do not have direct legal experience with the ADA or Section 504 claims. Def.'s Resp. 3. Mr. DiLorenzo was the lead lawyer on this case. DiLorenzo Deci. ¶ 9.
DWT's requested rates for Mr. DiLorenzo are $855 for 2022 and $955 for 2023. According to the 2023 OSB Economic Survey, the median rate for private practitioners in Downtown Portland admitted to practice for over thirty years is $425, and the 95th percentile is $798. The Court finds that Mr. DiLorenzo's experience with public impact litigation justifies his rate. The City has not shown that the rates are unreasonable for an experienced attorney like Mr. DiLorenzo who is well known for his work in impact litigation.
Mr. Stuckey has been practicing law for twenty-eight years. Deci, of Aaron Stuckey, ECF [32], at ¶ 2. Mr. Stuckey has worked with Mr. DiLorenzo on public impact cases such as Vannatta v. Keisling, 324 Or. 514, 931 P.2d 770 (1997), County of Linn, C. A. No. 16CV07708, and Anderson, C. A. No. 1112-15957. Id. ¶ 3. Mr. Stuckey is currently of counsel at DWT, and he served as senior counsel on this case. Id. ¶ 4. He reviewed Mr. Swift and Mr. Tangman's work product and participated in settlement negotiations. Id. Mr. Stuckey was a primary communicator during the settlement negotiations with the City. Deci, of James T. McDermott ("McDermott Deci."), ECF [35], at ¶ 23.
DWT's requested rates for Mr. Stuckey are $670 for 2022 and $750 for 2023. Pls.' Mot. 4. Mr. Stuckey's rate for 2022 falls between the OSB median rate of $450 and the 95th percentile of $697 for attorneys in Downtown Portland with twenty-one to thirty years of experience. Mr. Stuckey's 2023 rate falls below the 95th percentile only after adjusting for inflation. McDermott Deci. ¶ 24. The Court finds that these rates are reasonable considering Mr Stuckey's depth of...
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