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Allen Edwards; Nancy Edwards; Environmental Law Foundation v. City of Colfax

February 15, 2011

ALLEN EDWARDS; NANCY EDWARDS; ENVIRONMENTAL LAW FOUNDATION, PLAINTIFFS,
v.
CITY OF COLFAX, DEFENDANT.



ATTORNEYS FEES ORDER ON MOTION FOR

This closed action is before the undersigned pursuant to a November 2008 settlement agreement entered into between the parties and a January 23, 2009 order stating "that the District Court, through Magistrate Brennan, shall retain jurisdiction over Civil Case No. 2:07-CV-02153 GEB (EFB) for the sole purpose of enforcing compliance by the Parties with the terms of the Agreement attached as Exhibit A to the Parties' Stipulation to Dismiss with Prejudice" ("Settlement Agreement"). Dckt. No. 42.

The action resurfaced before this court in February 2010 when plaintiffs filed a motion for an order finding defendant in civil contempt for violation of the Settlement Agreement. Dckt. No. 43. Defendant opposed the motion and filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) or for declaratory relief. Dckt. No. 52. A hearing was held as to both motions on April 14, 2010, and on April 22, 2010, the court issued an order (1) denying defendant's motion for relief from judgment; (2) construing plaintiffs' motion for an order finding defendant in civil contempt as a motion for an order enforcing the Settlement Agreement, and granting that motion; (3) stating that "[p]laintiffs will be entitled to recover some of the stipulated penalties plaintiffs seek pursuant to the [S]ettlement [A]greement, reasonable attorney's fees, and appropriate injunctive relief to compel defendant's compliance with the [S]ettlement [A]greement"; and (4) scheduling an evidentiary hearing to determine the appropriate injunctive relief. Dckt. No. 71. The order further provided that "[a]fter the evidentiary hearing, the undersigned will determine what injunctive relief is appropriate, as well as what monetary penalties to award to plaintiffs and how to allocate those penalties, and what attorney fees are reasonable to award to plaintiffs." Id.

However, on the day of the scheduled evidentiary hearing, the parties advised the court that they wished to vacate the evidentiary hearing and conduct further settlement negotiations. Dckt. No. 104. Therefore, the evidentiary hearing was vacated and the undersigned held settlement discussions with the parties. Id. The settlement discussions continued over the course of several months and the undersigned met with the parties on four separate occasions. Dckt. Nos. 104, 106, 108, 110. Finally, on October 12, 2010, the parties filed a "Proposed Order Re: Compliance with Settlement Agreement" resolving most of the issues raised in plaintiffs' motion for enforcement of the Settlement Agreement and raised during the negotiations related to that motion. Dckt. No. 111. The Order Re: Compliance with Settlement Agreement was approved by the undersigned on November 2, 2010. Dckt. No. 113.

Although the Order Re: Compliance with Settlement Agreement addresses nearly all of the issues raised in plaintiffs' motion, it does not address plaintiffs' request for attorney's fees. Specifically, the order states that "Plaintiffs' request for fees and costs incurred to date is deemed submitted and will be addressed in a separate order." Dckt. No. 113, ¶ 32.

The undersigned has already determined that plaintiffs are entitled to reasonable costs and attorney's fees pursuant to the Settlement Agreement.*fn1 See Dckt. No. 71. Therefore, the issue that remains for decision is the amount of reasonable fees to award to plaintiffs.

Plaintiffs seek $459,870.84 in total fees and costs, and have submitted billing entries supporting the fees and costs requested. The amount requested is based on the following:

* $336,881.00 in attorney's fees billed by Lawyers for Clean Water,*fn2 based on the following hours and billable rates:

* Daniel Cooper: 270.35 hours at a rate of $550.00 per hour, for a total of $148,692.50;

* Samantha Williams: 462.46 hours at a rate of $350.00 per hour, for a total of $161,861.00;

* Layne Friedrich: 4.67 hours at a rate of $500.00 per hour, for a total of $2,335.00;

* Drev Hunt: 2.55 hours at a rate of $350.00 per hour, for a total of $892.50;

* Martin McCarthy: 9.30 hours at a rate of $500.00 per hour, for a total of $4,650.00;

* Liz Crosson: 12.90 hours at a rate of $290.00 per hour, for a total of $3,741.00;

* Ashley Eagle-Gibbs: 52.08 hours at a rate of $100.00 per hour, for a total of $5,208.00;

* Caroline Koch: 67.27 hours at a rate of $100.00 per hour, for a total of $6,727.00;

* Meghan Strauss: 27.74 hours at a rate of $100.00 per hour, for a total of $2,774.00;

* $22,350.00 in attorney's fees billed by Donald Mooney, based on

59.6 hours at a rate of $375.00 per hour;*fn3

* $91,201.69 in expert costs; and

* $9,438.16 in other costs.

I. Attorney's Fees

In calculating an appropriate fee award, the court must first "calculate the 'lodestar figure' by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate." Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983)). This lodestar figure is presumptively reasonable and should only be enhanced or reduced in "rare and exceptional cases." Id. However, the court may adjust the lodestar figure if various factors overcome the presumption of reasonableness. Hensley, 461 U.S. at 433-34. Those factors include:

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Morales v. City of San Rafael, 96 F.3d 359, 364 n.8 (9th Cir. 1996) (quoting Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)).

In determining the number of hours reasonably expended, a court has "discretion to 'trim fat' from, or otherwise reduce, the number of hours claimed to have been spent on the case." Soler v. G & U, Inc., 801 F. Supp. 1056, 1060 (S.D.N.Y. 1992) (citing N.Y. State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983)). Time expended on work deemed "excessive, redundant, or otherwise unnecessary" shall not be compensated. See Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992), as amended on denial of reh'g, (1993) (quoting Hensley, 461 U.S. at 433-34). In determining a reasonable hourly rate, the court considers the relevant community and the prevailing hourly rate in that community for similar services by attorneys of comparable skill and experience. See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008).

In opposition to plaintiffs' request for immediate payment of their fees and costs, defendant characterizes plaintiffs' attorney and expert fees and costs as "extraordinary" and argues that the fees are: (1) "precluded by Paragraph 58 of the Settlement Agreement, which limits recoverable fees and costs for compliance monitoring and the meet and confer process during informal dispute resolution to $15,000 over the life of the Agreement"; (2) "duplicative of fees already paid to Plaintiffs' attorneys by the City pursuant to Paragraph 58 of the Settlement Agreement"; (3) "reflective of an excessive number of hours, particularly by Plaintiffs' attorney Samantha Williams, spent on motion related activities";*fn4 (4) "at rates far in excess of reasonable or prevailing rates for similar work performed in the greater metropolitan Sacramento area where the Eastern District Court resides"; and (5) "reimbursement for excessive and unreasonable costs." Dckt. No. 78 at 5.*fn5

A review of the billing entries submitted by plaintiffs in support of their fee request reveals that the majority of the fees requested were necessarily and reasonably incurred as a result of plaintiffs' efforts to seek compliance with the Settlement Agreement. However, the court will address each of defendant's contentions regarding plaintiffs' fee request in turn.

A. Reasonable Number of Hours

1. Fees Precluded by Paragraph 58 of the Settlement Agreement Defendant contends that some of the fees that plaintiffs seek are "precluded by Paragraph 58 of the Settlement Agreement, which limits recoverable fees and costs for compliance monitoring and the meet and confer process during informal dispute resolution to $15,000 over the life of the Agreement." Dckt. No. 78 at 6-7. According to defendant, "Paragraph 58 provides for specified compensation up to the point in which informal negotiations do not resolve the issue, and a party actually invokes the Formal Dispute Resolution process in Paragraph 67. Once the Formal Dispute Resolution process is invoked, which, in this case, was triggered by the Plaintiffs' February 17, 2010 Motion for Contempt, then and only then do the fee and cost provisions of Paragraph 67 apply." Id. at 7. Accordingly, defendant argues that plaintiffs' fees from March through December 10 of 2009, which defendant contends amount to $40,741.86 for 107.3 hours, should be capped at $15,000. Id.

Plaintiffs counter that defendant's interpretation of Paragraph 58 is "inconsistent with the Settlement Agreement's dispute resolution mechanism and with feeshifting pursuant to the Clean Water Act." Dckt. No. 79 at 10. According to plaintiffs, the limited compliance oversight budget in Paragraph 58 was "based on the assumption that, having settled this action, [defendant] would substantially comply with the Court-ordered terms." Id. at 10-11. Plaintiffs contend that the fund was created "for administrative compliance oversight to take place over the Settlement Agreement's five-year term." Id. According to plaintiffs' interpretation of the Settlement Agreement, if plaintiffs discovered non-compliance, they could invoke the informal dispute resolution process under Paragraph 66 of the Settlement Agreement and if defendant failed to come into compliance, they could then seek the Court's intervention via Paragraph 67's formal dispute resolution process. Id. at 11. According to plaintiffs, "[a]s a prerequisite to the formal dispute resolution process, fees and costs incurred in informal dispute resolution are compensable if formal dispute resolution is required." Id. Therefore, plaintiffs contend that all fees that they billed after concluding that Court intervention was necessary to compel compliance in May 2009, even those spent meeting and conferring with defendant, are covered by Paragraph 67 as part of formal dispute resolution. Id. at 11-12.

Plaintiffs further contend that "[e]ven applying [defendant]'s narrow interpretation of the Settlement Agreement, [defendant] overestimates the fees and costs that are attributed to the informal dispute resolution process." Id. at 12. According to plaintiffs, although defendant "arbitrarily assigns December 10, 2009 as the date that Plaintiffs began preparing the contempt motion, . . . Plaintiffs incurred significant fees and costs prior to December 10 in preparing the contempt motion and supporting pleadings." Id. "For example, in October and November of 2009 Plaintiffs reviewed [defendant]'s self-monitoring reports for violations, and prepared the violations table that eventually was submitted as Exhibit KK to the Cooper Contempt Declaration. . . . Thus even under ...


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