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Hurd v. Clark County School District

United States District Court, D. Nevada

December 2, 2019

HURD, et al., Plaintiffs,



         Pending before the Court is Plaintiffs' Motion for Attorney Fees and Costs, (ECF No. 178). Defendants Clark County School District (“CCSD”) and Shawn Paquette (collectively, “Defendants”) filed a Response, (ECF No. 188). Plaintiffs filed a Reply, (ECF No. 190).

         Also pending before the Court is Plaintiffs' unopposed Motion to Seal, (ECF No. 192), regarding the Exhibits appended to the Reply in Support of the Motion for Attorney Fees and Costs. For the reasons discused below, Plaintiffs' Motion for Attorney Fees and Costs and Plaintiffs' Motion to Seal are GRANTED.

         I. BACKGROUND

         This case arises from Defendant James Doran (“Doran”), a CCSD teacher, allegedly abusing Plaintiffs, nonverbal students with Autism Spectrum Disorder. The parties reached a settlement agreement while Defendants' Motion for Partial Summary Judgment was pending. (See Min. Order, ECF No. 161). The settlement provided $400, 000 to each Plaintiff from CCSD and $10, 000 to each Plaintiff from Doran's insurance carrier. (See Mins. of Settlement Conf. ¶¶ 2-3, ECF No. 161). The settlement designated Plaintiffs as the prevailing parties and left the determination of reasonable attorney fees and costs to the Court. (Id. ¶ 4). The agreement capped the recoverable fees and costs at $500, 000 and $425, 000, respectively. (Id.). Plaintiffs now move for an award of fees and costs equal to the maximum amount allowed by the parties' settlement agreement. (See Mot. Att'y Fees and Costs, ECF No. 178).


         a. Motion for Attorney Fees and Costs

         Pursuant to Federal Rule of Civil Procedure 54(d), a prevailing party may seek an award of attorney fees and costs. Fed.R.Civ.P. 54(d). When a party seeks a fee award under a federal fee-shifting statute, the court determines the award using the “lodestar method.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The ‘lodestar' is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (internal citation omitted). “Although in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it.” Id.; see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (enumerating the “Kerr factors” district courts may consider to adjust the lodestar).

         The party seeking fees bears the burden to submit evidence supporting the rates claimed and the hours worked. Hensley, 461 U.S. at 433; see also Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006). “The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). In reviewing a motion for attorney fees, the court will rely on its own experience to determine whether the amount requested is reasonable. See Hensley, 461 U.S. at 437; see also Ilick v. Miller, 68 F.Supp.2d 1169, 1176 (D. Nev. 1999).

         The prevailing party is presumptively “entitled to reasonable costs.” LR 54-1(a); see also Fed. R. Civ. P. 54(d)(1). The losing party may rebut this presumption by “establishing] a reason to deny costs.” Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006).

         b. Motion to Seal

         A motion to seal is governed by Federal Rule of Civil Procedure 26(c), which provides that, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Fed.R.Civ.P. 26(c)(1). When evaluating a motion to seal documents attached to a non-dispositive motion, the court considers whether '"good cause' exists to protect th[e] information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality.” Pintos v. Pac. Creditors Ass 'n, 605 F.3d 665, 678-79 (9th Cir. 2010) (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002)). The court may grant a motion to seal in its discretion, but it must provide its reasoning in deciding the motion. Id. at 679.


         a. Attorney Fees

         The Court concludes that Plaintiffs have requested fees for a reasonable number of hours worked; however, the hourly rates sought for some members of Plaintiffs' legal team are unreasonable. Nevertheless, the Court's loadstar calculation indicates that Plaintiffs should receive $500, 000 in attorney fees.

         In their Motion, Plaintiffs argue that they are entitled to an attorney fee award as the prevailing parties because they brought claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and 42 U.S.C. § 1983, each of which contains a fee-shifting provision. (Memorandum in Support of Mot. for Fees and Costs (“Mot. for Fees”) 9:1-11, Ex. 1 to Mot. for Att'y Fees and Costs, ECF No. 178). Plaintiffs staffed the case with five attorneys and four paralegals. They allege that based on the experience, skill, and reputation of attorneys Peter Alfert (“Alfert”), Todd Boley (“Boley”), Marianne Lanuti (“Lanuti”), Ian Hansen (“Hansen”), and Justin Young (“Young”) the attorneys should receive hourly rates of $700, $700, $450, $425, and $400, respectively. (Id. 11:26-16:14). Plaintiffs also allege that the Court should award an hourly rate of $250 for their paralegals. (Id. 16:15-25). Based on the detailed records submitted to the Court, Plaintiffs allege that the lodestar figure equals $687, 601.93, after deducting travel expenses and reducing the number of hours billed by 5% to offset any duplicative efforts or billing errors. (Id. 11:20-25, 16:26-23, 20:22-21:4).

         Defendants argue that Plaintiffs should be awarded no more than $175, 000 in attorney fees. (See Resp. to Mot. for Fees (“Resp.”) 31:4-9, ECF No. 188). Defendants contend that the Court should award less than requested because Plaintiffs' attorneys are not entitled to California rates, they won a modest award relative to the damages sought, engaged in block billing, overstaffed the case, requested unreasonably high rates, billed time to develop a playbook for use in later cases, executed duplicative work, and manufactured unnecessary discovery disputes that took longer to resolve than necessary. (Id. 5:20-7:4). The Court now turns to the lodestar calculation.

         i. Plaintiffs' Attorneys' Reasonable Hourly Rates

         When calculating the loadstar, the Court must determine the reasonable hourly rate for the prevailing party's attorneys and paralegals. Gonzales v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013). Generally, a reasonable hourly rate is the prevailing market rate “in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984). The relevant community is generally “the forum in which the district court sits.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010) (quoting Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008)). However, the relevant prevailing market rate may be that of another forum “if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).

         1. Attorneys Alfert and Boley

         Plaintiffs allege that Alfert and Boley are entitled to the prevailing market rate for counsel of comparable skill, experience, and reputation in the Bay Area of California, which is $700 per hour. (Mot. for Fees 13:1-7; 13:23-15:2). They allege-with a supporting affidavit from a Las Vegas civil rights litigator-that no local counsel has the skill required to handle civil rights cases involving nonverbal special needs children who have been abused by their teachers. (Id. 13:8-15) (see also Lichtenstein Decl., ECF No. 180).[1] Even if attorneys in the forum had the skills to take such cases, Plaintiffs argue that the substantial expense involved in litigating these cases limits the number of attorneys willing to take the work. (See Alfert Decl. ¶ 16, ECF 179); (see also Lanuti Decl. ¶¶ 10-12). Meanwhile, Alfert and Boley have over 80 years of combined experience in complex civil rights and torts litigation, and their practices have recently focused on cases involving abuse of children with special needs. (Id. 13:2-7; 13:23-15:2). They have represented over 50 families in such cases. (Id. 13:1-7).

         Defendants argue that Alfert and Boley are not entitled to Bay Area rates because many local attorneys have represented students in cases alleging abuse. (Resp. 20:9-14). Defendants also contend that Alfert and Boley have not demonstrated the skills they have that differentiate them from local counsel, and their experience with these abuse cases is limited because they only began representing special needs children in 2012. (Id. 20:16-21:2). Accordingly, Defendants argue that the Court should ...

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