Foley
v. Town of Lee, Huppe, et al., 2012 DNH 189 (D.N.H. 11/9/12) (District
Judge Joseph LaPlante).
SUMMARY OF MEMORANDUM
ORDER
The parties to this
lawsuit, a civil rights and tort action arising out of a dispute over a
vacation camping trailer at a campground in Lee, New Hampshire, disagree over
the amount of fees and costs that the plaintiffs should receive under the Fees
Act. See 42 U.S.C. § 1988(b).
During trial, the parties reached a settlement of all claims, including the
plaintiffs’ claim under 42 U.S.C. § 1983 that certain
police officers in the Town of Lee (known, together with the Town,
the police department, and other officers named here as the “municipal defendants”)
had violated the plaintiffs’ right to procedural due process by threatening to
arrest them if they remained with the camping trailer. As part of the
settlement, the municipal defendants agreed that the plaintiffs could “submit
an application for fees and costs through and including April 2, 2012, as
though pursuant to 42 U.S.C. § 1988,”
to be determined by this court. Plaintiffs seek attorneys’ fees in the sum of
$55,337.54 and “costs and expert fees” in the sum of $6,441.58. The municipal defendants
argue that the plaintiffs should receive only $8,054.39 in fees and $2,639.98
in costs. While, the court agrees with the municipal defendants as to the
plaintiffs’ recoverable costs, the court rules that the plaintiffs can recover
$29,664.25 in fees. The
Fees Act provides that in civil rights cases brought under 42 U.S.C. § 1983 ,
the court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs. Although this fee-shifting provision is
couched in permissive terminology, awards in favor of prevailing civil rights plaintiffs
are virtually obligatory. The burden is on the plaintiffs to prove that the
amount they have requested, usually under the “lodestar” method. Time spent on
work against the plaintiffs other than the municipality were not properly chargeable
to the municipality. As for expert witness
fees. These were not awarded as the alleged expert was disqualified to testify.
Further, expert witness fees are allowed only to enforce Section 1981 or
1981(a).
Unproductive time, such as
correcting counsel’s or filing errors are not compensable; excessive time spent
on a task is not compensable; tasks performed by and attorney that were
essentially paralegal or secretarial tasks are not compensable as attorney time
but rather at the reduced rate of the paraprofessional. Court examined what was
a reasonable hourly rate for the attorneys, citing to its prior opinion in Frost,
2012 DNH 072, 14, that $190 and $160 represented reasonably hourly rates
for attorney with 11 and 5 yours of experience, respectively, relying on a survey
of New Hampshire attorney which indicated that most attorney over age 40 charge
between $151 and $250 per hour and that most younger attorney charge between
$120 and $125. Thus, the court found
here that $175, rather than $250, was the reasonable, applicable hourly rate
for the professionals. After applying
these changes, the court declined to further adjust the award of cots and fees
upward or downward.
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