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Hess v. Ramona Unified School Dist.

December 19, 2008


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


On January 5, 2007, Plaintiffs Karen R. Hess, Michael A. Roberts, Seaneen A. Tenwolde, and John R. Tenwolde filed this lawsuit against Defendants Ramona Unified School District, Peter Schiff (in his official capacity as Superintendent of Schools), and David Osterman (in his individual and official capacity as Assistant Superintendent). Plaintiffs allege that Defendants failed to maintain equal facilities for girls' softball and boys' baseball in violation of numerous state and federal laws, including 20 U.S.C. §§1681 et seq, commonly known as Title IX.

On September 19, 2007, the Court ordered Defendants to construct a dedicated girls' softball field on the site of the boys' junior varsity/freshman baseball field. The Court ordered that the field be of the same quality and have the same amenities as the boys' varsity baseball field. On April 10, 2008, the Court ordered the renovations to the new softball field be completed by April 22, 2008. Thereafter, the Court extended this deadline, eventually arriving on a final date of June 30, 2008.

On October 14, 2008, Plaintiffs filed the instant motion for attorneys' fees and expenses. (Doc. No. 105.) On November 3, 2008, Defendants filed their opposition. On November 10, 2008, Plaintiffs filed their reply, along with an unopposed ex parte application for leave from the applicable page limits. (Doc. No. 112.)

The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). The Court GRANTS Plaintiffs' unopposed ex parte application. (Doc. No. 112.) And for the reasons stated below, the Court GRANTS Plaintiffs' attorneys' fee motion (Doc. No. 105), and awards Plaintiffs $297,300 in fees and $27,647.11 in expenses.


The parties are well aware of the factual background, and thus it is not necessary to repeat it here. It is sufficient to note that the litigation arises from the District's 30-year practice of providing two on-campus baseball fields for the boys' varsity and junior varsity/freshman teams, while the girls' softball teams were routinely shuffled around various off-campus locations to practice and play their "home" games.

As a result of the District's practice, Plaintiffs filed this lawsuit and sought a preliminary injunction. On August 20, 2007, the Court granted the motion and ordered the parties, with the assistance of Magistrate Judge Cathy Ann Bencivengo, to make a good faith effort to agree upon the precise form of relief to be granted. Unable to agree, on September 13, 2007, Judge Bencivengo issued a Recommendation Regarding Implementation of Injunctive Relief ("Recommendation"), recommending that the District build a new dedicated softball field over the boys' JV/freshman baseball field, oriented in the same direction as the varsity baseball field.

The District objected to Judge Bencivengo's Recommendation, urging instead that it be allowed to construct a "new Girls' Softball field" on the current location of the JV/freshman baseball field, without changing the field's orientation. In addition to being able to complete the necessary renovations by the start of the 2008 season, the District argued that its proposal would reduce the fiscal impact, thereby allowing the District to continue with plans to construct additional new facilities, including a softball/soccer complex.

Based on the District's representations, on September 19, 2007, the Court ordered:

By the start of the 2008 softball season, the District shall construct a dedicated girls' softball field on the current location of the boys' junior varsity/freshman baseball field. The field will be of the same quality and have all of the same amenities as the existing boys' varsity baseball field. (Doc. No. 58.)

From December 2007 through approximately April 2008, Plaintiffs filed a number of ex parte applications charging Defendants with failing to comply with the order. Defendants opposed each of the applications. The issues were eventually resolved, and on April 28, 2008, the parties jointly moved to extend the deadline for completing the renovations to the softball field to June 30, 2008. On April 28, 2008, the Court granted the joint motion. On October 14, 2008, Plaintiffs filed the attorneys' fee motion.


Under 42 U.S.C. §1988, a court may award attorneys' fees to the prevailing party in an action brought to enforce constitutional rights or the provisions of Title IX. See 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of . . . title IX of Public Law 92-318 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ."). The appropriate fee award is determined by multiplying the number of hours reasonably worked on litigation by a reasonable hourly rate, arriving at a "lodestar." See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The court may then make adjustments to the lodestar figure, if necessary, to arrive at a reasonable fee. Blum v. Stenson, 465 U.S. 886, 888 (1984).

"The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley, 461 U.S. at 433, 437). "The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Id. at 1397--98.

Furthermore, although the statute uses the terms "discretion" and "may," interpreting courts have looked to the legislative history and concluded that in the absence of special circumstances, a prevailing party should ordinarily recover reasonable attorney fees. See Toussaint v. McCarthy, 826 F.2d 901 (9th Cir. 1987).


Plaintiffs claim that their attorneys expended 1,108.7 hours, including 12 hours of paralegal time, and request $28,057.49 in costs and expenses. (Pl.'s Mot. at 17, 25.) Plaintiffs further request that the Court apply a multiplier of 2.0 to compensate them for the difficulty, risk, and excellence of the results obtained. (Id. at 22-23.)

A. The Motion is Timely

Defendants contend that Plaintiffs' motion is untimely. Under Federal Rule of Civil Procedure 54(d)(2)(B), attorneys' fee motions must be filed within fourteen days of entry of final judgment. Defendants argue that the final judgment in this case was the Court's April 28, 2008 order extending the deadline to June 30, 2008 for completing renovations to the softball field. Plaintiffs contend that no final order has been issued, and that the fee application is, therefore, timely. The Court agrees with Plaintiffs.

The April 28, 2008 order simply extended the deadline to complete the renovations. The order was not a final judgment. Plaintiffs remained free to pursue further relief after entry of that order. Therefore, there has not ...

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