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Phil Thalheimer; Associated Builders v. City of San Diego

April 26, 2012


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Granting Plaintiffs' Motion for Attorneys Fees

Presently before the Court is Plaintiffs' motion for attorney's fees pursuant to Fed. R. Civ. P. 54(d)(2) and 42 U.S.C. § 1988. After full briefing, the Court found the matter appropriate for submission on the papers and without oral argument. For the reasons explained herein, Plaintiff's motion is GRANTED.


The procedural history of Plaintiff's case is fully set forth in the Court's January 20, 2012 order granting in part and denying in part the parties' cross-motions for summary judgment. In short, Plaintiffs brought suit under 42 U.S.C. § 1983 challenging six provisions of San Diego's Municipal Election Campaign Control Ordinance ("ECCO"). The Court granted in part the Plaintiffs' motion for preliminary injunction, and that decision was affirmed on appeal.*fn1 Thalheimer v. City of San Diego, 706 F. Supp. 2d 1065, 1088 (S.D. Cal. 2010), aff'd 645 F.3d 1109 (9th Cir. 2011). Ultimately, the Court granted summary judgment in favor of Plaintiffs on five of its nine causes of action, and granted summary judgment in favor of the City on the remaining claims.

Plaintiffs now move the Court for attorneys fees and expenses as the prevailing party in this action.

Legal Standard

A party who prevails on its claim under 42 U.S.C. § 1983 may be allowed to recover a reasonable attorney's fee as a part of the costs. 42 U.S.C. § 1988. A "prevailing party" is one who "succeed[s] on any significant issue in litigation which achieves some benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The relief must "materially alter[] the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Fisher v. SJB-P.D., Inc., 214 F.3d 1115, 1118 (9th Cir. 2000).

The lodestar method is the guiding principle in determining a reasonable attorney's fee. City of Burlington v. Dague, 505 U.S. 557, 560 (1992) (identifying lodestar as "the guiding light of our fee-shifting jurisprudence"). The lodestar figure "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. "[T]here may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high." Blum v. Stenson, 465 U.S. 886, 897 (1984). However, once the prevailing party has carried its burden of showing the reasonableness of the rate and the hours, "the resulting product is presumed to be the reasonable fee contemplated by § 1988." Id.

Where a party is only partially successful, and the successful and unsuccessful claims are "distinctly different claims for relief that are based on different facts and legal theories," the hours spent on unsuccessful claims should be excluded from the reasonable hours calculation. Schwarz v. Secretary of Health & Human Svcs., 73 F.3d 895, 901 (9th Cir. 1995). Where the successful and unsuccessful claims are related, however, the court may adjust the total fee award either by specifying particular hours to be eliminated, or by simply reducing the award to account for the limited success. Hensley, 461 U.S. at 436.


1. Reasonableness of Hours

Plaintiffs have submitted the declarations of its attorneys, James Bopp Jr. and Gary D. Leasure, showing the hours actually worked on this case. In full, the billing records of Mr. Bopp's law firm reflect 688.9 hours spent by ten different attorneys on behalf of Plaintiffs in prosecuting successful claims in this Court and before the Ninth Circuit Court of Appeals. In arriving at that figure, the attorneys' billing records reflect adjustments for 151 hours originally billed by attorneys at the Bopp Law Firm, but not charged as a matter of "billing judgment" because they were determined to be excessive, redundant or otherwise unnecessary. [Declaration of James Bopp Jr. ("Bopp Decl."), ¶ 15 and Exhibit C (Billing Statement)(deducting hours as NO CHARGE with notation "billing judgment").] In addition, the billing records reflect a reduction of another 199 hours attributable to the unsuccessful claims. [Id., ¶¶ 18-19 and Exhibit C (deducting hours as NO CHARGE with notation "partial success").] In addition, the billing records and declaration of Mr. Leasure reflect 21.2 hours expended in prosecuting Plaintiffs' successful claims. Mr. Leasure exercised billing judgment and did not include in his billing statements hours which he determined were excessive, redundant, or otherwise unnecessary. [Declaration of Gary D. Leasure ("Leasure Decl."), ¶ 6.]

Reviewing counsel's declarations and billing statements, with the Court's knowledge of the complexity of the issues raised in this case, the Court finds Plaintiffs have satisfied their initial evidentiary burden of demonstrating the reasonableness of the hours sought. Plaintiffs' counsel has exercised billing judgment in a good faith effort to eliminate excessive, redundant, or otherwise unnecessary hours. Hensley, 461 U.S. at 434. In addition, Plaintiffs' counsel reviewed its work product and exercised judgment to exclude hours expended on unsuccessful claims, as reflected on its billing statements. The billing statements, along with counsels' declarations, fully support Plaintiffs' request that they be awarded fees for the reasonable hours their attorneys spent successfully litigating this case.

The City asserts several particular challenges to the hours sought by Plaintiffs related to the appeal of the preliminary injunction, counsel's travel time, and administrative tasks.

A. Fees for Appeal

In its decision affirming this Court's preliminary injunction order, the Court of Appeals ordered "[e]ach party shall bear its own costs on appeal." The City argues this statements bars Plaintiffs from recovering attorneys fees for any work on the appeal. The Court disagrees.

Although the Ninth Circuit has not addressed the question, the Circuits which have explicitly addressed the issue have concluded that costs under Rule 39 do not include attorneys' fees under fee shifting statutes such as 42 U.S.C. § 1988. McDonald v. McCarthy, 966 F.2d 112, 115 (3d Cir. 1992); Pedraza v. United Guarantee Corp., 313 F.3d 1323, 1330 n.12 (11th Cir. 2002) (citing McDonald, 966 F.2d at 116, for the "undoubtedly" correct and "uncontroversial conclusion that attorneys' fees are not included among the 'costs' contemplated by Rule 39"); Chemical Mfrs. Ass'n v. EPA, 885 F.2d 1276, 1278 (5th Cir. 1989); Kelley v. Metropolitan County Bd. of Educ., 773 F.2d 677, 681 (5th Cir. 1981); Robinson v. Kimbrough, 652 F.2d 458, 463 (5th Cir. 1981); Terket v. Lund, 623 F.2d 29, 33 (7th Cir. 1980). In each of these cases, the courts noted the term "costs" is defined both in Fed. R. App. P. 39 and in the authorizing statute, 28 U.S.C. § 1920, to include "normal administrative costs such as those incurred in preparing the record, filing fees, and the cost of the reporter's transcript." See, e.g. McDonald, 966 F.2d at 116. "Accordingly, it would be 'inappropriate for this court to judicially-amend Rule 39's cost provisions to include § 1988 attorneys fees." Id. (citing Kelley, 773 F.2d at 682 n.5).

Nonetheless, the City argues controlling Ninth Circuit authority holds that attorneys fees are a part of the "costs on appeal" within the meaning of Fed. R. App. P. 39. In Azizian v. Federated Department Stores, Inc., 499 F.3d 950 (9th Cir. 2007), the Court of Appeals examined whether attorney's fees are part of "costs on appeal" under Fed. R. Civ. P. 7. The court noted a majority of courts had adopted a rule allowing the district court to require a Fed. R. Civ. P. 7 bond to include appellate attorney's fees if such fees would be recoverable costs under an applicable fee-shifting statute. 499 F.3d at 955. The court also looked at the Supreme Court's decision in Marek v. Chesny, 473 U.S. 1 (1985), where the Supreme Court held the term "costs" in Fed. R. Civ. P. 68 included attorney's fees awardable under 42 U.S.C. § 1988. 499 F.3d at 957 (citing Marek, 473 U.S. at 9). Based upon Marek and the decisions of the other circuits, the Ninth Circuit Court of Appeals concluded "the term 'costs on appeal' in Fed. R. Civ. P. 7 includes all expenses defined as 'costs' by an applicable fee-shifting statute, including attorney's fees." 499 F.3d at 958. The City argues Fed. R. App. P. 39 likewise incorporates attorney's fees as part of the "costs" where provided by the underlying substantive statute.

The City's argument lacks merit. In Azanian, the Court explicitly recognized "that the costs identified in Rule 39(e) are among, but not necessarily the only, costs available on appeal." 499 F.3d at 958. Unlike Fed. R. Civ. P. 7, Fed. R. App. P. 39 defines costs as the traditional administrative-type costs, such as preparation and transmission of the record, reporter's transcript, premiums paid for an appeals bond, and filing fee. Those costs are initially determined by the clerk, not the court, to be included in the mandate. Fed. R. App. P. 39(d). Furthermore, the court applies a different standard to determine whether a party is entitled to attorney's fees as a prevailing party under 42 U.S.C. § 1988, or costs under Fed. R. App. P. 39. For purposes of § 1988, a "prevailing party" is one who "succeed[s] on any significant issue in litigation which achieves some benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433. By contrast, an award of costs under Fed. R. App. P. 39 turns on whether ...

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