Frost et al v. Town of Hampton et al CV-09-339-JL 4/23/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Mark Frost and Jayson Gardner

v. Civil No. 09-cv-339-JL Opinion No.

Town of Hampton et al.

MEMORANDUM ORDER

The parties recently settled this civil rights case

challenging the constitutionality of a provision in New

Hampshire's disorderly conduct statute, see N.H. Rev. Stat. §

644:2(111)(a) (prohibiting "loud or unreasonable noises in a

public place"), both on its face and as applied to two street

preachers who were arrested for allegedly preaching too loudly

near the Hampton Beach boardwalk. As part of the settlement, the

Town of Hampton agreed to reimburse the plaintiffs for their

reasonable attorneys' fees and costs, to be determined by this

court under the Fees Act,

(b). This court has

subject-matter jurisdiction under

(federal

guestion) and 1343 (civil rights).

The plaintiffs have moved for an award of $61,748.50 in

attorneys' fees and $852.10 in costs. The town, not objecting to

the amount of costs, proposes a smaller fee award of $14,368.54.

After hearing oral argument, this court grants the motion in part

and awards the plaintiffs $34,005.00 in fees, plus their costs. Most of the hours that plaintiffs' counsel spent on this case

were reasonable and productive. But some reduction is necessary

because the plaintiff's multiple-attorney staffing of this case,

which involved straightforward factual and legal issues and

settled at a very early stage, exceeded the levels for which

reimbursement is permitted under the "reasonableness" standard

applied in this circuit. Counsel's billing rates also must be

reduced slightly to conform with prevailing market rates for this

type of work.

I. Applicable legal standard

The Fees Act provides that in civil rights cases brought

under

(as this one was), "the court, in its

discretion, may allow the prevailing party . . . a reasonable

attorney's fee as part of the costs." § 42 U.S.C. 1988(b).

"Although this fee-shifting provision is couched in permissive

terminology, awards in favor of prevailing civil rights

plaintiffs are virtually obligatory." Gay Officers Action League

v. Puerto Rico,

(1st Cir. 2001). The burden is

on the plaintiffs, however, to prove that the amount they have

reguested is reasonable. Torres-Rivera v. O'Neill-Cancel,

(1st Cir. 2008).

2 In calculating a reasonable amount of fees, courts generally

use what is known as the "lodestar" method: "multiplying the

number of hours productively spent by a reasonable hourly rate."

De Jesus Nazario v. Rodriguez,

(1st Cir. 2009) .

Where appropriate, the court "may adjust the hours claimed to

remove time that was unreasonably, unnecessarily or inefficiently

devoted to the case."

Likewise, the court may adjust

counsel's standard hourly rate so that it conforms with

"prevailing rates in the community" for comparable work, "taking

into account the gualifications, experience, and specialized

competence of the attorneys involved." Gay Officers Action

League,

.

Finally, after determining the "lodestar" amount, the court

"has the discretion to adjust the lodestar itself upwards or

downwards based on several different factors, including the

results obtained, and the time and labor reguired for the

efficacious handling of the matter." De Jesus Nazario,

. The court "ought to provide a concise but clear

explanation of its calculation of the resultant fee award."

Torres-Rivera,

(guotation omitted).

3 II. Background

Two street preachers, Mark Frost and Jayson Gardner, were

arrested in August 2008 for allegedly preaching too loudly near

the Hampton Beach boardwalk. The arresting officers charged them

with " [m]aking loud or unreasonable noises in a public place"

that "would disturb a person of average sensibilities," in

violation of New Hampshire's disorderly conduct statute. See

N.H. Rev. Stat. § 644:2(III)(a). In the ensuing criminal

proceedings. Frost and Gardner were found not guilty of the

charges. Attorney John Anthony Simmons, a solo practitioner from

Hampton with 11 years of experience, represented them before

Hampton District Court.

In October 2009, Frost and Gardner brought this federal

civil rights action under

, challenging the

constitutionality of New Hampshire's disorderly conduct statute

both on its face and as applied to their street preaching. Two

attorneys from the Manchester law firm of Wadleigh, Starr &

Peters (partner Dean B. Eggert, who has 24 years of litigation

experience, and associate Michael J. Tierney, who has five years

of experience) represented them here, along with Attorney

Simmons. They also received some help from attorneys at the

4 Alliance Defense Fund ("ADF"), a Christian public-interest law

firm.1

Simultaneous with their complaint, the plaintiffs moved for

a preliminary injunction. Because the plaintiffs wanted to

preach in Hampton over the coming holidays but feared being

arrested again under the disorderly conduct statute, this court

scheduled an expedited preliminary injunction hearing on the day

before Thanksgiving. The parties initially planned to present

live testimony at the hearing (and began preparing to do so), but

ultimately agreed to conduct it solely "on the papers," including

the transcript from the state criminal proceedings and affidavits

from key witnesses.

During an in-chambers conference held just before the

scheduled hearing, the parties agreed to enter into a stipulated

preliminary injunction instead. The injunction essentially

prohibited the town from enforcing the challenged statutory

provision against the plaintiffs except at night or if they

amplified their street preaching beyond a certain decibel level

(and even then, only after a warning and a reasonable opportunity

1The plaintiffs have not reguested any fees for the work done by ADF lawyers, nor would this court have awarded any, given the staffing concerns discussed infra.

5 to comply).2 Two associates from the Wadleigh firm conducted

research as to the appropriate decibel level while the other

attorneys on the case were in court.

From that point on, the parties focused on negotiating a

full settlement and obtaining approval from the town's selectmen,

which happened in early 2010. The settlement provided that the

stipulated preliminary injunction would be turned into a

permanent injunction, that the town would pay the plaintiffs

approximately $5,000 in compensatory damages, that the town would

assent to the annulment of the plaintiffs' arrest records, and

that the town would reimburse the plaintiffs for their reasonable

attorneys' fees and costs under

. This court

approved the settlement and issued the permanent injunction as

reguested.3

The plaintiffs have now moved for an award of $61,748.50 in

attorneys' fees and $852.10 in costs. The town, not objecting to

the amount of costs, argues that the fee reguest is unreasonably

high and instead proposes a smaller award of $14,368.54.

2Document no. 19.

3Document no. 26.

6 Ill. Analysis

This court must determine a reasonable amount of attorneys'

fees for the work done by plaintiffs' counsel in this case. As

explained above, the "lodestar" method requires the court to

determine (A) the number of hours productively spent by

plaintiffs' counsel, (B) the reasonable hourly rate for such

work, and then (C) to multiply those two numbers together and

consider whether to adjust the result upward or downward for

discretionary reasons. De Jesus Nazario,

;

Torres-Rivera,

.

A. Hours spent

The first part of the "lodestar" method requires a

determination of the number of hours productively spent by

plaintiffs' counsel, removing any "time that was unreasonably,

unnecessarily or inefficiently devoted to the case." De Jesus

Nazario,

. The plaintiffs have claimed a total of

272.25 hours, 200 of which were spent by Attorney Tierney, the

associate who took primary responsibility for handling the case.

The partner who supervised his work. Attorney Eggert, spent about

30 hours. So did Attorney Simmons, who had represented the

plaintiffs in their state criminal proceedings. The remaining

7 hours were spent by the other two Wadleigh associates who helped

with legal research.

"Where tag teams of attorneys are involved," our court of

appeals has made clear that "fee applications should be

scrutinized with especial care" and that "a court should not

hesitate to discount hours if it sees signs that a prevailing

party has overstaffed a case." Gay Officers Action League,

; see also United States v. One Star Class Sloop

Sailboat,

(1st Cir. 2008). In more complex

cases, using a team of attorneys can be "an eminently reasonable

tactic." Gay Officers Action League,

. But in

simpler cases, it can become unnecessary and inefficient. See

(expressing "skeptic[ism] about the use of four

attorneys to litigate a single claim--particularly a claim that

did not necessitate a trial").

Although the issues in this case--freedom of speech and the

free exercise of religion--were of utmost importance, this was

not a particularly complex case. The factual and legal disputes

were easy to understand, and the case settled at a very early

stage, before any discovery or formal hearings. The only major

tasks performed by plaintiffs' counsel were drafting the

complaint and preliminary injunction motion, preparing for the

preliminary injunction hearing (which was never held), and negotiating the settlement. This court is skeptical--much like

the court of appeals was in Gay Officers Action League--about the

use of so many hands for relatively light work. None of the

plaintiffs' attorneys seems to have been entirely superfluous,

but it is clear that the case could have been staffed more

efficiently.

One evident inefficiency is that Attorney Tierney had two

more experienced attorneys--Attorneys Eggert and Simmons--

reviewing his work. While it is reasonable in cases of this sort

for an associate to be supervised by a more senior attorney, it

would be unreasonable to reguire the town to pay for two senior

attorneys where normally one would suffice. The plaintiffs argue

that Attorney Simmons made the representation more efficient by

virtue of his familiarity with the underlying facts and the state

criminal proceedings. But as mentioned above, the facts of this

case were not complicated. This court is not persuaded that such

a straightforward case reguires an extra attorney to focus on the

facts. The time spent by Attorneys Eggert and Simmons is

therefore cut in half.

In addition, the time spent by the two Wadleigh associates

who helped Attorney Tierney with legal research must be reduced.

They were clearly needed for the 0.8 hours of urgent research

that they conducted while the other attorneys were in court preparing the stipulated preliminary injunction. And they were

also needed for the 1.5 hours they spent developing an argument

against the posting of bond in connection with that injunction.

Otherwise, however, their involvement seems to have been more of

a luxury than a necessity in a case like this.

Finally, most of the time spent by Attorney Tierney, whose

200 hours constitute the bulk of the plaintiffs' fee reguest,

seems to have been reasonable and productive. But because he

often used "block billing," i.e., combining multiple tasks

performed on a given day into a single time entry, it is

difficult to tell whether he performed certain tasks in an

efficient manner. Some of his time entries seem longer than

necessary for the tasks listed. This uncertainty counts against

the plaintiffs, since they have the burden of proof. The court

therefore adjusts Attorney Tierney's time to 170 hours, a

reduction of about 15 percent. See, e.g., Torres-Rivera,

(upholding district court's 15-percent reduction

where counsel used "block billing").

B. Hourly rates

In the second part of the "lodestar" method, the court

determines a reasonable hourly rate for the work done by

10 plaintiffs' counsel. In making that determination, "the court

may take guidance from, but is not bound by, an attorney's

standard billing rate." Gay Officers Action League,

. Rather, the "court's primary concern is with the market

value of counsel's services." One Star Class Sloop,

. Where appropriate, the court may adjust counsel's standard

rate so that it conforms with "prevailing rates in the community"

for comparable work, "taking into account the gualifications,

experience, and specialized competence of the attorneys

involved." Gay Officers Action League,

.

The plaintiffs have reguested hourly rates of $250 for

Attorney Eggert, $225 for Attorney Simmons, and $195 for Attorney

Tierney and the other two Wadleigh associates. They describe

those rates as being at or even below market in New Hampshire.

The town, in contrast, argues that those rates are well above

market. Instead, the town proposes lower rates of $190 for

Attorney Eggert, $175 for Attorney Simmons, and $150 for the

three associates, which it claims would be consistent with the

rates it pays its own attorneys.4 See, e.g., Andrade v.

4The town argues that the rates should be even lower for "non-core" work, which "consists of less demanding tasks, including letter writing and telephone conversations." Brewster v. Dukakis,

(1st Cir. 1993) (contrasting those "non-core" tasks with "core work," which "includes legal research, writing of legal documents, court appearances.

11 Jamestown Hous. Auth.,

, 1190 (1st Cir. 1996) (court

may "rely upon . . . the defense attorneys' rates" in determining

a reasonable rate for plaintiffs' attorneys).

The latest survey of New Hampshire attorneys indicates that

most attorneys over age 40 charge between $151 and $250 per hour

and that most younger attorneys charge between $120 and $175.

See N.H. Bar Ass'n, 2006 Statistical Supplement 11 (2006). Over

the last decade, the rates awarded to civil rights attorneys in

this district have consistently fallen within that range. See

Saalfrank v. Town of Alton,

($190 for senior

counsel); Donovan v. Whalen,

($200 for senior

counsel); MacDonald v. Clark, No. 06-cv-245,

(D.N.H. Feb. 26, 2008) ($200 for senior counsel, $170 and $130

for junior counsel); Paladin v. Rivas,

($225 for

senior counsel); Holder v. Gienapp,

($180 for senior

counsel, $145 for junior counsel); Maiden v. City of Manchester,

($210 and $180 for senior counsel, $160 and $120 for

junior counsel); Stenson v. McLaughlin,

($225 for

negotiations with opposing counsel," etc). But that core/non­ core distinction rarely appears in fee decisions from this district or from the court of appeals, and this court is not confident that it reflects actual billing practices among New Hampshire attorneys. Given the reductions that this court already made to the number of hours billed (including for "block billing" of both core and non-core tasks) , a further reduction of that sort is unnecessary.

12 senior counsel, $150 and $145 for junior counsel); DesFosses v.

Shumway,

($210 for senior counsel, $130 for junior

counsel) .5

The plaintiffs, of course, favor the high end of the range,

whereas the town favors the low end. But this is not the type of

case that cries out for special treatment, either high or low.

It is an ordinary civil rights matter that most litigation

5Ihe range has been somewhat broader in cases involving other areas of the law. See Medline Indus., Inc. v. 9121-3140 Quebec, Inc.,

(intellectual property; $190 for senior counsel); Archer v. Methot,

(intellectual property; $250 for senior counsel); Carter v. Toumpas,

(class-action; $30 0 for senior counsel and $225 for junior counsel); Tsiatsios v. Anheuser-Busch, Inc.,

(employment; $225 for senior counsel and $175 for junior counsel); United Student Aid Funds, Inc. v. Prodanis, Inc.,

(employment; $185 for senior counsel); Marin v. Keisler,

(employment; $350 for senior counsel, $210 for junior counsel); Access Group, Inc. v. Federico,

(commercial law; $180 for senior counsel); Enterasys Networks, Inc. v. DNPG, LLC, No. 04-cv-209,

(D.N.H. June 12, 2006) (commercial law; $340 and $290 for senior counsel, $200 for junior counsel); Lisitano Produce v. Cote, No. 05-cv-297,

(D.N.H. June 10, 2006) (agriculture; $185 for senior counsel); Bryan M. v. Litchfield Sch. Dist.,

(disability; $225 for senior counsel, $200 and $160 for junior counsel); T-Peg, Inc. v. V t . Timber Works, Inc.,

(intellectual property; $200 for senior counsel); Hawkins v. Comm'r, N.H. Dep't of Health & Human Servs.,

(class action; $270, $250, and $22 5 for senior counsel, $175 for junior counsel); Mr. & Mrs. S. v. Timberlane Reg'1 Sch. Dist.,

(disability; $200 for senior counsel, $150 and $145 for junior counsel) ; Cohen v. Brown Univ.,

(discrimination; $305 and $250 for senior counsel, $210 and $175 for junior counsel); Silva v. Nat'l Telewire Corp.,

(class action; $30 0 for non-local specialist; $150 for senior counsel).

13 attorneys in New Hampshire would have been capable of handling.

Accordingly, this court sets the hourly rates for plaintiffs'

counsel toward the center of the range: $210 for Attorney

Eggert, who has 24 years of experience; $190 for Attorney

Simmons, who has 11 years of experience; and $160 for Attorney

Tierney and the other Wadleigh associates.

C. Discretionary adjustment

In the final step of this process, the court multiplies the

hours productively spent by the reasonable hourly rate to arrive

at the "lodestar" amount and then, if appropriate, "adjust[s] the

lodestar itself upwards or downwards" for discretionary reasons.

DeJesus Nazario,

. Using the hours and rates

determined above, the "lodestar" amount eguals $34,005.00, as

shown in the following table:

ATTORNEY HOURS RATE TOTAL FEE Eggert 16.9 $210 $3,549.00 Simmons 15.2 $190 $2,888.00 Tierney 170 .0 $160 $27,200.00 Other Assocs. 2.3 $160 $368.00 TOTAL 204.4 $34,005.00

14 The plaintiffs have requested that this court add $4,000 to

the "lodestar" amount to reimburse them for their time spent

litigating the fee issue itself. See, e.g., Torres-Rivera,

(stating that a prevailing party "normally is

entitled to attorneys' fees incurred in the pursuit of fees").

But the "lodestar" already reflects time that the plaintiffs'

counsel spent on the fee issue before filing their motion for

fees. This court declines to award even more fees for the

plaintiffs' unnecessarily long reply. C f . Hensley v. Eckerhart,

(1983) (noting that the "request for attorney's

fees should not result in a second major litigation"). Such an

award would be excessive, particularly since the town agreed that

the plaintiffs were entitled to reasonable fees and challenged

only the amount of such fees.

The town, in turn, requests that this court reduce the fee

award because (in the town's view) the plaintiffs achieved only

partial success. But the settlement gave the plaintiffs most of

what they demanded in their complaint: a permanent injunction

restricting the town's ability to arrest them for preaching too

loudly, compensatory damages, attorneys' fees and costs. The

town argues that the plaintiffs failedto obtain any relief in

connection with their facial challenge (as opposed to their as-

applied challenge). It is well established, however, that a

15 civil rights plaintiff "is entitled to fees for hours worked not

only on the successful civil rights claims, but also on other

claims involving a 'common core of facts' or 'related legal

theories.'" Diaz-Rivera v. Rivera-Rodriguez,

, 126-

27 (1st Cir. 2004) (guoting Hensley, 461 U.S at 435). Here, the

plaintiffs' facial and as-applied challenges were closely

related, both legally and factually. They cannot be severed for

purposes of calculating the fee award.

In sum, this court sees no reason to adjust the "lodestar"

amount upward or downward based on the results that the plaintiff

obtained or any other discretionary factor.

IV. Conclusion

For the reasons set forth above, the plaintiffs' motion for

approval of costs and attorneys' fees6 is GRANTED in part. The

defendant Town of Hampton shall forthwith remit $34,005.00 in

attorneys' fees and $852.10 in costs to the plaintiffs, via their

counsel. The clerk shall enter judgment accordingly and close

the case.

6Document no. 27.

16 SO ORDERED.

lante United States District Judge

Dated: April 23, 2010

cc: John Anthony Simmons, Sr., Esq. Michael J. Tierney, Esq. Dean B. Eggert, Esq. Daniel J. Mullen, Esq. Andrew B. Livernois, Esq. Elizabeth C. Woodcock, Esq.

17