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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
v.
STATE OF MARYLAND, ET AL.
Civil No. JFM-01-2889
295 F. Supp. 2d 594
December 17, 2003, Decided
Plaintiff instituted this action against seven defendants, asserting
numerous claims for constitutional and common law torts and seeking damages of
$9,000,000. He ultimately obtained a verdict against [*595] one defendant on a
single claim (for use of excessive force) in the amount of $2,501.00 ($1.00
nominal damages and $2,500.00 in punitive damages). Plaintiff's counsel now
seek attorneys' fees in the amount of $128,710.00 and costs in the amount of
$12,132.80. I will award fees in the amount of $25,000.00 and costs in the
amount of $2,157.80.
I.
This was a
simple and straightforward case. It arose from an incident that occurred when
plaintiff and his wife were visiting their son who is housed at a Maryland correctional facility. Plaintiff alleged
that he was subjected to an unconstitutional search and arrest as the result of
a false alert by a drug dog. He also alleged that during the course of the
search he was beaten by law enforcement officers. n1
Plaintiff filed four separate
complaints: the original complaint and three amended complaints. Defendants
filed motions to dismiss or for summary judgment to these pleadings. To a large
extent, the motions were well founded. They resulted in the dismissal of three
of the defendants and a substantial winnowing down of plaintiff's claims
against the remaining four defendants.
After the conclusion of discovery, the remaining defendants
filed a motion for summary judgment.
I granted the motion in part and denied it in part. Thereafter, I denied a
motion for partial reconsideration filed by defendants as to plaintiff's claims
based upon the alleged unlawful arrest and unlawful search. In denying the
motion, I indicated that my ruling was without prejudice to defendants renewing
their arguments by way of a motion for judgment as a matter of law at the
conclusion of plaintiff's evidence at trial.
The case then proceeded to
trial. At the conclusion of plaintiff's evidence, I did grant defendants'
motion for judgment as a matter of law as to the unlawful search and unlawful
arrest claims against all defendants. I also granted the motion of one of the
defendants, Tameika Lockley, as to the claim against her for use of excessive
force. This left for submission to the jury only excessive force claims against
three of the defendants. The jury returned verdicts in favor of two of the
defendants but a verdict in favor of plaintiff against the third for $1.00 in
nominal damages and $2,500.00 in punitive damages.
II.
It is well
established that in evaluating a law enforcement officer's conduct, a court and
jury should not view an incident with 20/20 hindsight but should base their
judgment upon what a reasonable officer would have perceived the facts to be at
the time the incident occurred. So too
in awarding attorney fees and costs a court should not evaluate the
reasonableness of actions taken by the lawyers seeking fees based solely upon
the ultimate outcome of the case but rather upon the appropriateness of those
actions as a reasonable lawyer would
have perceived them contemporaneously during the various stages of litigation.
That said,
it is clear that here plaintiff's counsel seriously misjudged the case from the
inception and unnecessarily prolonged its duration and increased its cost. n2
When initially assessing this case, a skilled and experienced lawyer (entitled
to the $200 and $225 hourly rates to which [*596] plaintiff's counsel claim
they are entitled) would have seen it as one that in all likelihood would turn
on the credibility of the limited number of eyewitnesses to the incident giving
rise to plaintiff's claims. They would have filed a simple complaint under 42
U.S.C. § 1983 against the four persons alleged to have been personally involved
in the incident. n3
Skilled and
experienced counsel would also have advised plaintiff that in all likelihood
the case would not settle and that plaintiff would have an uphill battle in
obtaining substantial damages at trial. However, those facts alone certainly
would not have provided a basis for not instituting and pursuing the action. If
plaintiff could have afforded to pay a fee, in my judgment skilled and
experienced counsel would have charged a fee in the range of $20,000.00 to
$25,000.00. This fee would have covered the approximately 100 to 120 hours
counsel would have foreseen should be expended in (1) interviewing witnesses,
(2) preparing the complaint and written discovery materials, (3) preparing for
and participating in one to two days of depositions, (4) responding to a
summary judgment motion, (5) preparing a pretrial order and proposed voir dire
questions and jury instructions, (6) attending conferences with the court, (7)
preparing for and participating in a two to two and a half-day trial, and (8)
in the event of a favorable verdict,
submitting a short motion for fees and costs based upon accurate records that
were contemporaneously maintained.
Unfortunately, the manner in which plaintiff's counsel actually
handled the case stands in stark contrast to the manner in which skilled and experienced counsel would
have handled it. As I have previously indicated, they over-complicated the
pleading process, filing four different complaints. They named defendants and
asserted uncognizable claims in those complaints. As a result, defense counsel
(who, I note, did not make ado about nothing and got to the point at each stage
of the litigation) was required to file numerous motions to dismiss and for
summary judgment. These motions were meritorious except as to three of the
defendants' motion for summary judgment as to plaintiff's excessive force
claim. n4 Moreover, instead of narrowing plaintiff's claims when facts
established during discovery demonstrated that they lacked merit, plaintiff
continued to pursue them aggressively. He also hired an expert whose proposed testimony
became the subject of a motion in limine I ultimately granted. n5 The trial
itself went [*597] on approximately twice as long as it should have because of
plaintiff's inartful questioning and extensive examination of witnesses on
immaterial points.
Even after
trial, when they prepared their motion for fees and expenses, plaintiff's
counsel unreasonably and unnecessarily increased the cost of the proceedings.
They assert that they have spent over 50 hours in pursuing their motion for
fees and costs, and they request an award of over $11,200.00 for their work.
Almost $6,500.00 worth of this time was spent in preparing a reply memorandum,
a supplemental reply memorandum, and supporting documents that were filed in
response to defendant's quite appropriate opposition to the original fee
petition. In effect, plaintiff's counsel are bootstrapping their unreasonable and excessive claim into a
reason for requesting even more unreasonable and excessive fees. Moreover, in their initial reply
memorandum, plaintiff's counsel admit that although they kept contemporaneous
time records, those records were not "in the most organized and legible
format." Based upon the time records eventually submitted in support of
the motion for fees and costs, over seven hours was spent "preparing time
records." This means that at a rate of $225 per hour, plaintiff's counsel
is seeking to make defendant pay more than $1,500.00 for counsel's own improper
contemporaneous record-keeping.
II.
Having
summarized the reasons for my fees and costs award, I will now explain in
greater detail how the twelve factors enumerated in Johnson v. Georgia Highway
Express, 488 F.2d 714 (5th Cir. 1974) have guided me in the exercise of my
discretion. See Trimper v. City of Norfolk, 58 F.3d 68, 73 (4th Cir. 1995).
1. The time
and labor required to litigate the suit. n6
For the reasons I have stated, I find that a skilled and
experienced lawyer entitled to charge $200/$225 an hour could have properly
prepared and tried this case by spending 100 to 120 hours.
2. The
novelty and difficulty of the questions presented.
The legal issues presented in this case were neither novel nor
difficult. All that was required was to apply well settled law to the specific
facts presented. A lawyer entitled to charge $200/$225 per hour would have had
the relevant authorities at her fingertips and would not have been required to
engage in any extensive legal research.
3. The
skill required properly to perform the legal service.
Any trial lawyer with a working knowledge of the law developed
under 42 U.S.C. § 1983 [*598] was capable of performing the legal services
required.
4. The
preclusion of other employment opportunities.
Both defense counsel and I accommodated plaintiff's counsel's
schedule whenever necessary, and the case presented no extraordinary time
demands. Plaintiff's counsel have presented no evidence that they were
precluded for any other reason from pursuing other employment opportunities as
a result of their representation of plaintiff in this case.
5. The
customary fee for such services.
For purposes of my analysis, I accept plaintiff's counsel's
proposed hourly fees of $200 and $225 per hour.
6. Whether
the fee is fixed or contingent.
Plaintiff's counsel had a contingent fee agreement. To the
extent this factor is relevant, I find it weighs in favor of awarding a fee in
the top of the range ($20,000 to $25,000) I find to be reasonable. The
uncertainty that plaintiff's counsel would receive any payment justifies
liberality in applying the other relevant factors.
7. Time
limitations imposed by the client or the circumstances.
As I indicated in addressing the fourth factor, no particular
time limitations were placed upon plaintiff's counsel.
8. The
amount in controversy and the results obtained.
Plaintiff's counsel, who requested damages of at least
$9,000,000 in the ad damnum clause and $750,000 in their closing argument to
the jury, substantially overvalued their client's claims. The jury awarded
plaintiff only $1 in nominal damages and $2,500.00 in punitive damages against
only one defendant.
If I were to consider this result alone, I would award
substantially lower fees than I am awarding. See generally Farrar v. Hobby, 506
U.S. 103, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992). However, the case did
present triable issues both as to liability and damages, and plaintiff
prevailed on a matter of principle that implicates the public interest. I
therefore find it appropriate to award his counsel fees that provide reasonable
compensation for the time necessarily incurred even though the fee award
constitutes a high multiple of the damages recovered. n7
9. The
experience, reputation, and ability of the attorney.
I have given plaintiff's counsel credit for their years at the
bar in making an award based upon hourly rates of $200 and $225. The quality of
their performance does not entitle them to any multiplier.
10. The
"undesirability" of the case.
There was nothing undesirable about representing plaintiff in
this action. Civil [*599] rights actions challenging the conduct of
correctional officers and other law enforcement officials is a staple of
federal practice.
11. The
nature and length of attorney's professional relationship with the client.
Plaintiff has presented no information suggesting that this
factor would support fees higher than those otherwise appropriate.
12. Awards
in similar cases.
Fee awards in cases such as this vary across a broad range,
depending upon their facts and circumstances. They do not establish any strict
formula and can only provide guidance for the exercise of discretion. The award
I am making is ten times the amount of plaintiff's recovery. However, it
recognizes the importance of that recovery and is intended to provide
reasonable compensation for the work that reasonably had to be expended to
achieve it.
III.
Plaintiff
has requested costs in the amount of $12,132.80. n8 Of these requested costs,
$9,975 are for plaintiff's proffered expert. As I have previously stated, I
granted a motion in limine to preclude the expert's testimony and find that
plaintiff's retention of him was unreasonable and unnecessary. See footnote 5,
supra. Accordingly, I will not award plaintiff the amount of his fee.
Otherwise, plaintiff's request for costs will be granted.
A separate order effecting the rulings made in this memorandum
is being entered herewith.
Date: December 17, 2003
/s/
J. Frederick Motz
United States District Judge
ORDER
For the reasons stated in the accompanying Opinion, it is, this
17th day of December 2003
ORDERED
1. Plaintiff's motion for attorneys' fees and costs is granted
in part and denied in part; and
2.
Plaintiff is awarded attorneys' fees in the amount of $25,000.00 and costs in
the amount of $2,157.80.
/s/
J. Frederick Motz
United States District Judge
n1
Plaintiff also originally claimed that the officers stole money in his
possession. He dropped that claim on the morning of trial. Although he contends
that he did so for tactical reasons, the fact material for present purposes is
that he voluntarily chose to abandon the claim after having incurred fees in
pursing it.
n2 It is
with regret that I make unflattering observations about the performance of
plaintiff's counsel. I know how difficult it is to practice law and have no
desire to make life more difficult for lawyers who appear before me by
subjecting them to disparagement. However, in light of the amount of the award plaintiff's
counsel are seeking, I have no choice but to state the reasons I believe the
fees and costs they request were increased exponentially as the result of their
own performance.
n3
Initially, based upon what plaintiff and his wife told them, counsel may
properly have included claims for the unlawful search and an unlawful arrest
stemming from the false alert by a drug dog. However, as soon as the evidence
learned during discovery revealed that the named defendants were not
responsible in any way for conducting the dog search, these claims should have
been dismissed. Instead, as discussed in the text, plaintiff's counsel spent
substantial time and incurred a substantial expert fee in pursuing the claims.
n4
Although I denied the four defendants' motion for summary judgment as to the
unlawful search and unlawful arrest claims and defendant Lockley's motion for
summary judgment on the excessive force claim, defendants' motions on those
claims were ultimately proven to be meritorious in light of my rulings at trial
on defendants' motions for judgment as a matter of law.
n5 To
the extent that the expert would have opined as to the propriety of the dog
sniff resulting in the search and arrest of plaintiff, his testimony would have
been irrelevant because none of the named defendants were responsible for
conducting the dog sniff. To the extent that the expert would have expressed
any opinions as to the excessive force claims, his testimony would have been
immaterial because defendants conceded that if plaintiff's version of what
occurred were true, the force they used against him would have been excessive.
n6
Plaintiff's original counsel affiliated with a second lawyer to assist her in
the case. She was, of course, entirely free to make this decision. However,
whether one or two lawyers were representing plaintiff, no more than 100 to 120
hours had to be expended to provide him with entirely effective representation.
I agree with defendant that there was nothing about the nature of the case
requiring more than one lawyer to appear for plaintiff at depositions,
hearings, and conferences or to perform any other task. See §§ 2.b, 2.c. &
2.d , Rules and Guidelines For Determining Lodestar Attorneys' Fees in Civil
Rights and Discrimination Cases, Appendix B, Local Rules of the United States
District Court for the District of Maryland. I also note that defendants were
represented by only one lawyer at all stages of the litigation, including
trial.
n7 Asserting that all his claims arose from
the same set of core facts and that hours his counsel spent on unsuccessful
claims should be compensable to the extent that they contributed to the his
success in other ways, plaintiff argues that his counsel should be compensated
for the time they spent in litigating his claims arising from an alleged
unlawful search and alleged unlawful arrest.
The argument is entirely unpersuasive. Although the dog sniff that gave
rise to the search and arrest of plaintiff provided relevant background information
at trial, there was absolutely no legal basis for holding any of the defendants
liable for any errors committed in connection with the dog sniff since they
were not responsible for conducting it. Nevertheless, plaintiff's counsel spent
substantial time in pursuing those claims in the various iterations of the
complaint, through summary judgment, and at trial. That work did not contribute
to plaintiff's limited success on the excessive force claim against one of the
defendants.
n8 When originally submitting his motion,
plaintiff did not include any itemization or supporting documentation for the
requested costs. Such itemization and documentation is required by Local Rule
109.1.b. Moreover, to the extent that plaintiff claims taxable costs, the
request was untimely under Local Rule 109.1.a. I will, however, waive both of
those requirements.
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