Fund v. Reynolds
Opinion of the Court
This matter comes before the Court on a Motion for an Award of Attorneys' Fees and Costs
I. BACKGROUND
Plaintiffs filed this case on October 10, 2017, bringing claims under the First and Fourteenth Amendments. ECF No. 1. On Defendants' motion to dismiss for failure to state a claim, the Court disposed of Plaintiffs' Fourteenth Amendment equal protection claim. Animal Legal Def. Fund v. Reynolds,
On February 14, 2019, the Court entered an order declaring § 717A.3A facially unconstitutional and permanently enjoining further enforcement of the statute. ECF No. 86. Final Judgment was entered on February 15, 2019. ECF No. 87. On February 20, 2019, Defendants filed notice of appeal, ECF No. 88, which the Eighth Circuit Court of Appeals docketed on February 22, 2018, case number 19-1364.
On February 28, 2019, Plaintiffs filed the Motion for an Award of Attorneys' Fees.
*843ECF No. 93. Defendants filed objections on March 13, 2019. ECF No. 97. Plaintiffs replied to Defendants' objections on March 18, 2019. ECF No. 100.
II. STANDARD FOR THE MOTION
Plaintiffs seek an award of attorney fees as prevailing parties pursuant to
The starting point in calculating a reasonable fee award is to multiply the number of fair and reasonable hours billed by a reasonable billable hourly rate. Hensley,
The Court is tasked with determining the relevant legal market for determining a reasonable rate. Blum v. Stenson,
III. DISCUSSION
Plaintiffs request fees for work on this case to date, including work on this motion. Defendants dispute the requested hourly rates for three of Plaintiffs' seven attorneys and the reasonableness of the number of hours billed for this motion. Defendants do not dispute Plaintiffs' request that a 25% enhancement be applied to the lodestar calculation of fees, nor do they dispute Plaintiffs' hourly rates requested as to the other four attorneys. Other than the dispute over the number of hours billed for this motion, the parties do not dispute the number of hours Plaintiffs billed.
A. Applicable Hourly Rates
For all hours worked prior to the instant motion, Plaintiffs request an unadjusted *844total of $154,149.50 in fees for the work of seven attorneys.
Name Experience Hours Rate Unadjusted Market Total Matthew Strugar 14 years 168.4 $550 $92,620.00 Los Angeles-based rate Alan Chen 33 years 21.2 $650 $13,780.00 Denver-based rate Justin Marceau 14 years 27.8 $550 $15,290.00 Denver-based rate Rita Bettis Austen 8 years 41.7 $300 $12,510.00 Des Moines-based rate Kelsey Eberly 4 years 29.9 $230 $6,877.00 Des Moines-based rate Cristina Stella 7 years 29.5 $275 $8,112.50 Des Moines-based rate George Kimbrell 14 years 12.4 $400 $4,960.00 Des Moines-based rate Merits Totals 330.9 $154,149.50
Pls.' Br. Mot. Award Attys' Fees 15-16, ECF No. 93-1. Bettis Austen is the only practicing attorney of record in this case who is based in Des Moines. Although attorneys Eberly, Stella, and Kimbrell are not based in Des Moines,
In support of the claimed fees, counsel have provided the Court with affidavits regarding each attorney's qualifications, their contributions to this case, the hourly rates they normally charge, and-where applicable-the reduced rates they are seeking here.
Defendants do, however, object to the out-of-market rates sought by three of Plaintiffs' attorneys. To support the request, Plaintiffs argue Chen, Marceau, and Strugar each have specialized experience in First Amendment law related to undercover investigations and intentional false statements. Arguing the relevant legal market is Des Moines, Defendants challenge the fee claims for Chen, Marceau, and Strugar because their claimed rates *845are equivalent to, or based on, out-of-market rates inapplicable in Des Moines. Defendants assert the rate of $300 per hour claimed by Bettis Austen should guide the Court to reduce the rates of Chen, Marceau, and Strugar to no more than $300-$400 per hour.
Defendants argue Bettis Austen's fee claim of $300 per hour contradicts "any notion that local community rates were not 'sufficient to attract experienced counsel.' " Defs.' Br. 4, ECF No. 97 (quoting Little Rock Sch. Dist. v. Arkansas,
Neither the law, nor the record, prevent this Court from considering whether Chen, Marceau, and Strugar brought "extensive experience" to this case to warrant the requested out-of-market rates. In the Eighth Circuit, the district court has "flexibility" to "consider[ ] the prevailing rate in the market from which attorneys have traveled where the attorneys [a]re 'leaders in the field' with 'extensive experience,' 'able to handle the case in a shorter length of time than a local lawyer, without comparable experience, would have needed.' " Dugan,
The record shows that Chen, Marceau, and Strugar did bring extensive and specialized experience to this case. Chen and Marceau are professors and leading scholars on First Amendment law, including work specifically attuned to nuances in the law post-Alvarez. See Chen Decl. ¶¶ 8-9, ECF No. 93-3; Marceau Decl. ¶ 6, ECF No. 93-4; see also, e.g., Alan K. Chen & Justin Marceau, Developing A Taxonomy of Lies Under the First Amendment,
Defendants cite this Court's decision in Gerlich v. Leath, No. 14-cv-00264-JEG (S.D. Iowa Mar. 21, 2018), ECF No. 94, for the proposition that where local counsel is very experienced with First Amendment litigation, the relevant legal market for awarded fees is the local market. Gerlich involved Iowa State University's trademark licensing decisions that violated the student- plaintiffs' rights to free speech under the First and Fourteenth Amendments. Gerlich v. Leath,
Defendants also argue that in similar prior challenges in other courts, such as those brought in Idaho and Utah, Chen, Marceau, and Strugar did not seek out-of-market rates like they do here. Defendants argue the attorneys' increase in rates over such a short period-"an increase of between 25% to 80% over an approximate 3-year time period"-demonstrates the excessive *847nature of Plaintiffs' current request.
Based on the foregoing analysis, the Court finds that the relevant legal market for determining fees is Des Moines. Emery,
For the reasons provided, the rates for Strugar, Chen, and Marceau will be adjusted to account for the relevant market as follows: Matthew Strugar's rate will be decreased from $550/hour to $475/hour; Alan Chen's rate will be decreased from $650/hour to $500/hour; and Justin Marceau's rate will be decreased from $550/hour to $475/hour.
B. Time Spent on This Motion
For all hours worked on the instant motion, Plaintiffs request $10,142.50 in fees for the initial motion, ECF No. 93, and $2,955.00 for the reply, ECF No. 100. Plaintiffs' requested hours and rates are provided below.
*848Name Experience Hours Rate Unadjusted Market Total Matthew Strugar 14 years 16.2 $550 $8,910.00 Los Angeles-based rate Matthew Strugar (Reply) 14 years 4.9 $550 $2,695.00 Los Angeles-based rate Alan Chen 33 years 1.0 $650 $650.00 Denver-based rate Alan Chen (Reply) 33 years 0.4 $650 $260.00 Denver-based rate Rita Bettis Austen 8 years 1.1 $300 $330.00 Des Moines-based rate Kelsey Eberly 4 years 0.5 $230 $115.00 Des Moines-based rate Cristina Stella 7 years 0.5 $275 $137.50 Des Moines-based rate Fees Totals 24.6 $13,097.50
Strugar Decl. ¶¶ 19-20, ECF No. 93-2; Strugar Reply Decl. ¶ 5, ECF No. 100-1.
"Time spent preparing fee applications is generally compensable," but must not be excessive for the work completed. El-Tabech v. Clarke,
IV. CONCLUSION
Accordingly, we make the following award of fees and direct the Clerk of Court to enter Judgment in favor of Plaintiffs and against Defendants for fees to the prevailing parties in the amount of $181,623.13.
*849Name Hours Rate Unadjusted Total Enhancement Adjusted Total Matthew Strugar 168.4 $475 $79,990.00 Alan Chen 21.2 $500 $10,600.00 Justin Marceau 27.8 $475 $13,205.00 Rita Bettis Austen 41.7 $300 $12,510.00 Kelsey Eberly 29.9 $230 $6,877.00 Cristina Stella 29.5 $275 $8,112.50 George Kimbrell 12.4 $400 $4,960.00 Merits Totals 330.9 $136,254.50 1.25 $170,318.13 Name Hours Rate Total Matthew Strugar 16.2 $475 $7,695.00 Matthew Strugar (Reply) 4.9 $475 $2,327.50 Alan Chen 1.0 $500 $500.00 Alan Chen (Reply) 0.4 $500 $200.00 Rita Bettis Austen 1.1 $300 $330.00 Kelsey Eberly 0.5 $230 $115.00 Cristina Stella 0.5 $275 $137.50 Fees Totals 24.6 $11,305.00
IT IS SO ORDERED.
Plaintiffs separately filed a bill of costs, which has already been taxed against Defendants, see ECF No. 99.
Plaintiffs relate they have written off billable time spent by four of the attorneys of record in this case: Matthew Liebman of the Animal Legal Defense Fund, David Muraskin and Leslie Brueckner of Public Justice, and Paige Tomaselli, formerly of the Center for Food Safety. Strugar Decl. ¶ 11, ECF No. 93-2. They have also written off time spent on this matter by Jeff Kerr, General Counsel to the PETA Foundation, Jared Goodman, Director of Animal Law at the PETA Foundation, and Gabe Walters, Litigation Counsel at the PETA Foundation. Id. ¶ 12.
Attorney Eberly is a Staff Attorney at the Animal Legal Defense Fund (ALDF), which is based in Cotati, California. Eberly Decl. ¶ 1, ECF No. 93-7. Attorney Stella is Senior Staff Attorney at the ALDF, which is based in Cotati, California. Stella Decl. ¶ 1, ECF No. 93-6. Attorney Kimbrell is Legal Director for Plaintiff Center for Food Safety (CFS), which is based in Portland, Oregon. Kimbrell Decl. ¶ 3, ECF No. 93-8.
Strugar's rate for work in the Central District of California and the Los Angeles and Orange County Superior Courts is $675 per hour. Strugar Decl. ¶ 15, ECF No. 93-2. For his work in this case he seeks $550 per hour, which he believes is a reasonable blended rate between his rate in Los Angeles and what he could charge in Des Moines. Id. ¶ 16.
According to Plaintiffs, that includes the challenge to Utah Code § 76-6-112 in Animal Legal Def. Fund v. Herbert,
That is, "in this action Plaintiffs' counsel incurred less than 40% of the hours incurred in the Utah and Idaho cases" at the same stage of litigation. Pls.' Br. 13, ECF No. 93-1.
Plaintiffs point out that the prevailing party in Gerlich originally sought rates ranging from $440 to $692 per hour for attorneys with experience between 14 and 35 years. Pls.' Reply Br. 5, ECF No. 100. While this is a correct recitation of the rates requested in Gerlich prior to the stipulation, see Motion for Fees, Gerlich, No. 14-cv-00264-JEG (S.D. Iowa Mar. 21, 2018), ECF No. 88, the Court cannot go so far as to confirm whether the parties applied those exact rates to reach the stipulated fees amount.
Defendants admit, however, that Attorney Strugar is likely entitled to a higher rate based on his change in employment from the public sector to the private sector.
Plaintiffs note that the fees amount in the Utah action was eventually resolved in a settlement with the State.
To their resistance to Plaintiffs' Motion for Attorney Fees, ECF No. 97-2, Defendants attached Strugar's November 2015 declaration, Exhibit B-1 which was submitted in support of Strugar's attorney fees request in Animal Legal Defense Fund v. Otter, No. 1:14-cv-00104-BLW (D. Idaho), ECF No. 17-2. The Court refers to Strugar's November 2015 declaration to the extent it provides more specificity regarding Strugar's legal experience.
Reference
- Full Case Name
- ANIMAL LEGAL DEFENSE FUND Iowa Citizens for Community Improvement Bailing Out Benji People for the Ethical Treatment of Animals, Inc. and Center for Food Safety v. Kimberly REYNOLDS, Governor Tom Miller, Attorney General of Iowa and Drew B. Swanson, Montgomery County Attorney
- Status
- Published