United States District Court, D. Nevada
C. JONES United States District Judge
a prisoner civil rights case arising out of the use of a
shotgun to break up a fight between two inmates. On April 27,
2017, the Court dismissed much of the Amended Complaint,
leaving only the claims asserted against correctional
officers Reynaldo-John Ramos, Jeff Castro, and Isaiah Smith.
(Order, ECF No. 85.) On August 9, 2017, the parties filed a
stipulation to dismiss all claims against all defendants with
prejudice, which the Court signed and entered on August 15.
Plaintiff now requests an award of attorneys' fees by way
of unopposed motion, (ECF No. 89.) For the reasons given
herein, the Court grants the Motion in part.
U.S.C, § 1988(b) authorizes district courts to award the
'prevailing party, ' in any suit under 42 U.S.C.
§ 1983, a 'reasonable attorney's fee.'"
Gonzalez v. City of Maywood, 729 F.3d 1196, 1202
(9th Cir. 2013). A prevailing party "should ordinarily
recover an attorney's fee unless special circumstances
would render such an award unjust." Lefemine v.
Wideman, 568 U.S. 1, 5 (2012). "The district court
has a great deal of discretion in determining the
reasonableness of the fee and, as a general rule, [the Court
of Appeals] defer[s] to its determination, including its
decision regarding the reasonableness of the hours claimed by
the prevailing party." Gates v. Deukmejian, 987
F.2d 1392, 1398 (9th Cir. 1992). Despite this broad
discretion, however, "[i]t remains important... for the
district court to provide a concise but clear explanation of
its reasons for the fee award." Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). II. ANALYSIS This
motion is unopposed. Plaintiff represents in his motion that
the parties have stipulated that Plaintiff is the prevailing
party, and that Defendant State of Nevada has assented to the
fee award sought in the motion. These concessions were
presumably made as part of the parties' settlement
agreement, by which Plaintiff received a sum of $99, 000 in
exchange for a full dismissal of his case with prejudice.
Plaintiff as Prevailing Party
Court finds that Plaintiff was a prevailing party within the
meaning of section 1988, not merely because of the
parties' stipulation to that fact but because Plaintiff
received substantial monetary relief from the settlement.
"[T]o qualify as a prevailing party, a civil rights
plaintiff must obtain at least some relief on the merits of
his claim. The plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought, or
comparable relief through a consent decree or
settlement." Farrar v. Hobby, 506 U.S. 103, 111
(1992) (emphasis added) (citations omitted). It is well
settled in the Ninth Circuit that a litigant may be deemed a
prevailing party when he enters into a legally enforceable
settlement agreement. See, e.g., Gonzalez, 729 F.3d
at 1202; Carbonellv. I.N.S., 429 F.3d 894, 899 (9th
Cir, 2005). Here, Plaintiff did not succeed on all of his
claims or against all Defendants. However, for the claims on
which he did prevail, he received significant relief. See
Hensley, 461 U.S. at 433 ("[P]laintiffs may be
considered 'prevailing parties' for attorney's
fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit.").
Calculation of the Lodestar
Court next turns to whether the fee requested is reasonable.
The Ninth Circuit has laid out the process for making this
determination in some detail:
To determine the amount of a reasonable fee under §
1988, district courts typically proceed in two steps. First,
courts generally apply the "lodestar" method to
determine what constitutes a reasonable attorney's fee.
Second, the district court may then adjust the lodestar
upward or downward based on a variety of factors. ... A
district court, using the lodestar method to determine the
amount of attorney's fees to award, must determine a
reasonable number of hours for which the prevailing party
should be compensated.....Of course, in some cases, the
prevailing party may submit billing records which include
hours that could not reasonably be billed to a private client
and, therefore, are not properly included in a § 1988
fee award. For example, records may contain entries for hours
that are excessive, redundant, or otherwise unnecessary.
Because a reasonable attorney's fee would not include
compensation for such hours, . . . the court may conduct an
hour-by-hour analysis of the fee request, and exclude those
hours for which it would be unreasonable to compensate the
Gonzalez, 729 F.3d at 1202 (citations omitted).
the Court finds that the hours billed by Plaintiffs counsel
Mr. Vogelman are generally reasonable. Mr. Vogelman billed
fewer than sixty hours on this case over the course of nearly
nine months, which time included, inter alia,
regularly communicating with Plaintiff and opposing counsel,
drafting an amended complaint, drafting a discovery plan,
coordinating with opposing counsel on a case management
report, defending a motion to dismiss and/or motion for
summary judgment, and obtaining a favorable settlement for
his client. While this case was not overly complex, factually
or legally, Mr. Vogelman's hours are broadly commensurate
with the work required.
the Court takes note that more than a quarter of the total
hours recorded by Mr, Vogelman represent nonproductive travel
time between New Hampshire and Nevada (15.6 hours out of a
total 58.9). (See Vogelman Billing Records 2, ECF
No. 89-3.) It is within the Court's discretion to award
fees under section 1988 for travel time, see Davis v.
City & Cty, of San Francisco, 976 F.2d 1536, 1543
(9th Cir. 1992), opinion vacated in part on other
grounds, 984 F.2d 345 (9th Cir. 1993), or to reduce that
portion of the fee attributable to travel time, see
Yamada v. Snipes, 604 F, App'x 579, 580 (9th Cir.
2015). However, courts are especially reluctant to award fees
for long-distance travel where an insufficient showing has
been made that travel by out-of-state counsel was actually
necessary. See, e.g., Comcast, 2010 WL 3781768, at
*7; Stanford v. Ocwen Federal Bank FSB, 2012 WL
37383, *2 (E.D. Cal. Jan. 6, 2012) (reducing fees for travel
time where telephonic appearance was possible). That
reluctance is consistent with the need for the Court to guard
against awarding fees that "were self-imposed and
avoidable." Comcast, 2010 WL 3781768, at *5
(citing Tirana v. State Farm Mut. Auto, Ins. Co.,
821 F, Supp. 632, 636 (D, Haw. 1993)).
Vogelman has not attempted to make a showing that his travel
to Nevada was unavoidable. His billing records reveal that
the only work he did while in Nevada was to meet with
Plaintiff for 1, 8 hours and review a court order for twelve
minutes. The Court must conclude, therefore, that the purpose
of Mr. Vogelman's trip was to have a face-to-face meeting
with his client, However, the billing records also reveal
that Mr, Vogelman was in frequent contact with his client by
mail, email, and telephone. Mr. Vogelman has asserted-and the
Court accepts-that Plaintiff retained him as counsel because
Plaintiff had difficulty with finding representation in
Nevada. However, after looking through Mr. Vogelman's
billing records, the Court is at a loss as to why Mr.
Vogelman was unable to conduct his client meeting over the
phone. Indeed, Mr. Vogelman entered two telephonic
appearances in this case, (see ECF Nos. 66,
83), so why was it necessary to expend such a significant
amount of time and money on traveling to Nevada only to talk
to his client? Unfortunately, Plaintiffs motion leaves this
important question unanswered. Moreover, the fee request for
Mr, Vogelman's travel time is further complicated by the
appearance that Mr. Vogelman had other business in Nevada
during the same trip, Mr. Vogelman arrived in Nevada on
December 6, 2016, and met with Plaintiff on December 7, but
did not return home to New Hampshire until December 10.
Surely the Court cannot count all of Mr. Vogelman's
travel time as billable client hours if he had other
unrelated reasons for visiting Nevada, Therefore, without
more information concerning the necessity of the travel and a
fuller understanding of all of Mr. Vogelman's reasons for
talcing the trip, the Court cannot conclude that it is
reasonable for Mr. Vogelman to include his travel time among
the hours spent on this case. Accordingly, the Court finds
the reasonable hours for this case to be 43.3 for Mr.
Vogelman, and 1.5 for Ms, Davidson.
Court also finds that the hourly rates charged by Mr.
Vogelman are reasonable. For his own work, Mr. Vogelman has
applied a rate of $219 per hour, the maximum rate permissible
under the Prison Litigation Reform Act (PLRA). See
42 U.S.C.A, § 1997e(d)(3) (limiting attorneys' fees
under the PLRA to 150% of the statutory hourly rate for
court-appointed counsel); Judiciary Fiscal Year 2017
Congressional Budget Summary 37 (Feb. 2016),
mmary__0.pdf (stating that the maximum rate authorized by
statute is $146 per hour). This is reasonable in light of the
fact that he is an experienced attorney with a customary rate
of $450 per hour. For Ms. Davidson, a paralegal, Mr. Vogelman
has applied a rate of $125 per hour, This is within ...