Monday, November 12, 2012

11/9/12: N.H. District Court case re calculating the award of costs & fees in a 42 U.S.C. §1983 Action using "lodestar" method.

Foley v. Town of Lee, Huppe, et al., 2012 DNH 189 (D.N.H. 11/9/12) (District Judge Joseph LaPlante).
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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