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Hixon v. City of Golden Valley et al.: US District Court : ATTORNEY FEES - hourly rates reasonable; paralegal fees OK; defendant forced response; fees to establish fee OK

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Aljuan C. Hixon,
Plaintiff,
Civ. No. 06-1548 (RHK/JSM)
MEMORANDUM OPINION AND
ORDER
v.
City of Golden Valley, et al.,
Defendants.
Andrew D. Parker, Anthony G. Edwards, Parker Rosen, L.L.C., Minneapolis, Minnesota, for
Plaintiff.
Jon K. Iverson, Susan M. Tindal, Iverson Reuvers, Bloomington, Minnesota, for
Defendants.
This matter is before the Court on Plaintiff Aljuan Hixons Motion for Attorneys
Fees and Costs Under 42 U.S.C. Section 1988 (Doc. No. 139). For the reasons set forth
below, Hixons Motion will be granted in part and denied in part.
BACKGROUND
This case arose out of Plaintiff Aljuan Hixons arrest on April 2, 2005 by City of
Golden Valley police officers. The crux of the Complaint was that the officers used
excessive force when effecting the arrest. Hixon asserted eleven claims in his Complaint
against five Defendants (the City and four police officers, in their individual capacities).
Most of Hixons claims were dismissed at summary judgment; the only claims surviving to
trial were for excessive force under 42 U.S.C. 1983 and for assault and battery under
1 The City was included in the Judgment because (1) it was liable under the doctrine of
respondeat superior on the state-law claims and (2) it represented to the Court that it would indemnify
Hernandez in the event of an adverse verdict. (See Order for Judgment (Doc. No. 136) at 2.)
2
state law. Those claims were tried to a jury between September 6, 2007, and September 11,
2007. On September 13, 2007, the jury returned a verdict finding Defendant Mario
Hernandez liable, and it awarded Hixon 8,000 in compensatory damages and 0,000
in punitive damages. On September 18, 2007, the Court adopted the jurys verdict, and on
October 3, 2007, the Court entered Judgment against Hernandez and the City.1 And, on
November 29, 2007, the Court denied the Defendants Motion for New Trial or Remittitur.
Hixon now moves for an award of attorneys fees and costs under 42 U.S.C. 1988.
The City and Hernandez (who are referred to hereinafter as the Defendants) oppose
Hixons Motion.
ANALYSIS
I. Attorneys fees
Under 42 U.S.C. 1988(b), a prevailing plaintiff in a Section-1983 action may
recover his attorneys fees. The fees awarded, however, must be reasonable. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). There is no dispute here that Hixon is the prevailing
party and, therefore, that he is entitled to recover his attorneys fees. The only question
confronting the Court is the appropriate amount of the fees to be awarded.
Hixon asks the Court to award him 9,516 in attorneys fees for work performed
up to and including the entry of Judgment in this case. (Pl. Mem. at 13.) He also requests
2 The extent to which the Defendants challenge the requested fees is not entirely clear. In their
Memorandum, they purport to seek a reduction of attorneys fees by at least 40 percent. (Mem. in
Oppn at 11.) However, in a 27-page table submitted by the Defendants counsel, in which the
Defendants challenge certain of Hixons counsels billing entries, the Defendants only take issue with
,863.50 in excessive fees (see Tindal Aff. (Doc. No. 153) Ex. 1 at 27), which is far less than the
40% reduction the Defendants purportedly seek. Compounding the confusion, it is unclear where the
,863.50 figure comes from; the total of the challenged entries in the table exceeds ,000.
Regardless, the Court believes that it is safe to assume the Defendants wish for it to reduce Hixons
requested fees by the greatest amount it deems appropriate.
3
an additional ,447 for fees incurred in connection with his fee application and in
defending against the Defendants Motion for New Trial or Remittitur. (See Doc. No.
168.) Finally, he also requests a 20% enhancement to the fee award due to the
excellence of his counsels representation and the exceptional nature of the damages
awarded by the jury. (Pl. Mem. at 6-8.) The Defendants argue that the fees are excessive
and must be reduced because (1) Hixon was only partially successful on his claims and his
counsel devoted time and effort to claims that Hixon dropped before trial, and (2) his
counsel has submitted vague, redundant, and excessive billing records. (Mem. in Oppn at
3-11.)2 The Defendants also argue that the results achieved in this case were not so
extraordinary as to merit an enhancement for exceptional results. (Id. at 12-14.)
A. The Court will make a small reduction in the requested fee amount
The starting point for an award of attorneys fees must always be the lodestar,
which supplies an initial estimate of the appropriate amount to award. Blum v. Stenson,
465 U.S. 886, 888 (1984). There is a strong presumption that the lodestar figure
represents the reasonable fee to be awarded. City of Burlington v. Dague, 505 U.S. 557,
4
562 (1992). To calculate the lodestar amount, the Court must multiply the reasonable
number of hours expended by a reasonable hourly rate for each attorney performing the
work. Id. at 559-60 (citation omitted). That amount must then be adjusted upward or
downward on the basis of the results obtained. Wheeler v. Mo. Highway & Transp.
Commn, 348 F.3d 744, 754 (8th Cir. 2003) (citing Hensley, 461 U.S. at 434).
1. Hourly rates
The Defendants do not challenge the hourly rates charged by Hixons attorneys.
Hixons lead lawyer, Andrew Parker, has asked for reimbursement at the rate of 0 per
hour, and his primary co-counsel, Anthony Edwards, has asked for 0 per hour. Both are
experienced trial lawyers with substantial experience in police-misconduct cases. Given
their training, experience, and skill levels, the Court believes that the hourly rates charged
by these attorneys are reasonable and are consistent with the prevailing market rates for
lawyers of their skill levels. See Blum, 465 U.S. at 895 & n.11 (reasonable hourly rate is
prevailing market rate in relevant legal community for similar services by lawyers of
comparable skills, experience, and reputation). The remaining attorneys involved in this
case have charged rates ranging from 0 per hour to 0 per hour. The Court
concludes that the hourly rates charged by these lawyers also are appropriate. See, e.g.,
State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1582 (Fed. Cir. 1991) (quoting
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988))
([t]he court . . . is itself an expert on the question [of reasonableness of hourly rates] and
3 Hixon also seeks reimbursement for work performed by paralegal Barbara Livick and by
legal assistants working for his attorneys. Legal work is compensable under Section 1988 even though
it is performed by a paralegal. Missouri v. Jenkins, 491 U.S. 274, 284-89 (1989). Hence, Hixon may
recover for time expended by Livick, and, in the Courts view, the hourly rate charged by her, a
paralegal with 25 years experience, is reasonable. However, purely clerical or secretarial tasks are
not compensable, id. at 288 n.10, and hence Hixon may not recover for legal-assistant work.
5
may consider its own knowledge and experience when fashioning fee award).3
2. Reasonable number of hours
Next, the Court must analyze the hours expended by Hixons counsel on this
litigation. Certain of Hixons lawyers devoted de minimis time to this case (e.g., Douglas
Wardlow, who expended 7.4 hours performing legal research), while others, including trial
counsel Parker and Edwards, expended over 400 hours. The Defendants argue that these
hours must be reduced.
a. Hours up to and including entry of Judgment
The Defendants first contend that Hixons counsel spent numerous hours on claims
[upon] which he did not prevail and devoted other hours to claims that he dropped before
trial. (Mem. in Oppn at 3-7.) Specifically, they note that Hixon asserted eleven claims in
his Complaint, but seven of those claims were dismissed at summary judgment. They
further point to the fact that Hixon initially claimed lost wages and damages for injuries to
his knee, but dropped those claims prior to trial. (Id.)
Yet, the dismissed claims, as well as those that Hixon chose to forego, were
inextricably intertwined with the claims that proceeded to trial. All of the claims in this
case, whether successful or unsuccessful, arose out of an unbroken chain of events
4 In any event, even if the Court were to conclude that Hixons counsel devoted some time to
claims severable from the core allegations in this case, it believes that the 10% reduction it will make in
the hours claimed by Hixons attorneys (discussed below) more than makes up for such unnecessary
time.
6
commencing with the police officers arrival at the Sinclair station where Hixon was
arrested. Simply put, the claims all involve[d] a common core of facts, Hensley, 461 U.S.
at 435, such that reduction of the number of hours expended is unwarranted. See, e.g.,
Casey v. City of Cabool, 12 F.3d 799, 806 (8th Cir. 1993) (Once a party is found to have
prevailed, [a] fee award should not be reduced merely because a party did not prevail on
every theory raised in the lawsuit.).4
Second, the Defendants argue that many of the hours expended by Hixons counsel
were either redundant, unnecessary, or excessive, and that a large number of the billing
entries submitted by his counsel are too vague to support an award of fees. (Mem. in Oppn
at 7-11.) The Defendants are correct that Hixon may not recover for excessive, redundant
or otherwise unnecessary hours expended by his attorneys. Hensley, 461 U.S. at 434.
And while the Court agrees that at least some of the tasks performed by Hixons lawyers
were either unnecessarily duplicative or excessive, its review of counsels billing records
leads it to conclude that this case was not replete with such inefficiencies. Indeed, this
matter (which has been pending for over 18 months) involved more than a dozen
depositions, necessitated motion practice during discovery, and required extensive briefing
in connection with the Defendants summary-judgment Motion. In addition, the trial lasted
for four days and involved numerous pre-trial motions and, later, testimony from twenty
7
witnesses. Given these facts, it is not in the least bit surprising, nor in the Courts view
unreasonable, for each of Hixons attorneys to have billed the hours claimed on this case.
Nevertheless, the Court believes that at least some reduction in the hours billed is
warranted to account for duplication of effort, as well as for the handful of billing entries
submitted by counsel that are vague or otherwise unclear. Rather than recite here, line-byline,
the Courts analysis of the scores of billing entries submitted by Hixons counsel, it
will instead reduce the submitted hours by 10%, which it believes is sufficient to account
for redundancies and vagueness. See Kline v. City of Kansas City, Mo. Fire Dept., 245 F.3d
707, 709 (8th Cir. 2001) (affirming district courts reduction of fees on percentage basis
to account for overlawyering).
Based on the foregoing, the Court calculates the lodestar for the work performed by
Hixons counsel prior to the entry of Judgment in this case as follows:
Lawyer/paralegal Hourly rate Hours claimed Hours allowed (after 10% reduction),
rounded down to the nearest hour
Lodestar
Andrew Parker 0 413.4 372 8,800
Anthony Edwards 0 645.7 581 4,300
Nancy Mate 0 231.1 208 ,760
Daniel Rosen 0 10.1 9 ,150
Douglas Wardlow 0 7.4 6 ,200
Barbara Livick 5 411.1 370 ,250
TOTAL 9,460
b. Hours expended post-Judgment
As for the time expended by Hixons counsel after the entry of Judgment, the
8
Defendants once again argue that those hours (totaling approximately 70, divided among
three attorneys and a paralegal) were excessive. The Court cannot agree. The Defendants
filed a 36-page memorandum in support of their Motion for New Trial or Remittitur,
raising a host of legal and factual issues. The Defendants cannot be heard to complain that
Hixons counsel devoted an unreasonable amount of time to responding to those numerous
issues; indeed, it was the Defendants own extensive and, ultimately, unmeritorious
Motion that necessitated such a time-consuming response by Hixons counsel, which
culminated in a 29-page opposition brief.
The Defendants also argue that Hixons attorneys are not entitled to fees for fees,
that is, reimbursement for fees incurred in preparing the initial fee application. However, it
is beyond peradventure that such fees are recoverable. See, e.g., Jones v. MacMillan
Bloedel Containers, Inc., 685 F.2d 236, 239 (8th Cir. 1982) (The attorneys for the
plaintiffs have also requested an amount for services performed in litigating the attorneys
fee claim in the district court and on appeal. In accordance with the practice of other
circuits, we hold that the plaintiffs attorneys are entitled to such compensation.). Indeed,
[i]t would be inconsistent with the purpose of [Section 1988] to dilute a fees award by
refusing to compensate the attorney for the time reasonably spent in establishing and
negotiating his rightful claim to the fee. Id.
Simply put, the Court believes that the hours expended post-Judgment were
reasonable and that no reduction is warranted, with the exception of the 2.1 hours expended
by legal assistants. (See note 3, supra.) Accordingly, the Court will deduct 9.50 (for
9
legal-assistant work) from the ,447 sought for hours expended post-Judgment, resulting
in a lodestar amount of ,247.50.
c. The total lodestar amount
Based on the foregoing, the total lodestar amount for all work performed by Hixons
counsel, both pre- and post-Judgment, equals 3,707.50 (9,460 + ,247.50).
B. Neither an enhancement nor a reduction of the lodestar is appropriate
Having calculated the lodestar amount, the Court must next determine whether an
upward or downward adjustment of that amount is warranted. The Court first concludes that
the lodestar should not be adjusted downward. Reduction is warranted where the plaintiff
has achieved only partial or limited success. Hensley, 461 U.S. at 436-37. In analyzing
that issue, what matters most is the degree of success obtained. Id. at 437 (emphasis
added). In the Courts view, by any reasonable measure Hixon achieved a high degree of
success in this case, notwithstanding the dismissal of some of his claims. Indeed, the sheer
size of the jurys verdict and its award of punitive damages support that conclusion.
Moreover, the Court is not oblivious to the normal difficulties inherent in obtaining a
jury verdict against police officers in an excessive-force case, see King v. Turner, Civ. No.
05-388, 2007 WL 1219308, at *1 (D. Minn. Apr. 24, 2007), particularly where, as here,
the case involves a claim by a black plaintiff against white police officers [that] rests
largely on the word of [the plaintiff] against that of the police. Sanders-El v. Wencewicz,
987 F.2d 483, 485 (8th Cir. 1993). Accordingly, the Court concludes that a deduction is
neither necessary nor appropriate given the high degree of success that Hixon obtained.
10
The Court next concludes that an upward adjustment is equally unwarranted. Given
the strong presumption that the lodestar amount is the reasonable fee to which a
prevailing plaintiff is entitled, Dague, 505 U.S. at 562, a court may increase that amount
only in rare and exceptional cases. Pennsylvania v. Del. Valley Citizens Council for
Clean Air, 478 U.S. 546, 565 (1986). The Court does not believe that this is such a case,
notwithstanding the high quality of representation by Hixons counsel. Moreover, an
upward adjustment must take into account the nature of the lodestar amount; generally
speaking, an enhancement is appropriate when the lodestar amount is low relative to the
complexity of the case. See Daggitt v. United Food & Commercial Workers Intl Union,
245 F.3d 981, 990 (8th Cir. 2000) (affirming enhancement in complex case where lodestar
amount was modest). Given that the lodestar amount in this case exceeds 0,000, the
Court does not believe that further enhancement of that amount is necessary to the
determination of a reasonable fee in this case. Dague, 505 U.S. at 562 (emphasis in
original).
For these reasons, the Court will award Hixon the lodestar amount of 3,707.50
in attorneys fees.
II. Costs
Hixon next seeks an award of ,141.77 in expenses incurred in connection with
this case, including filing and service fees, photocopying costs, court-reporter fees for
depositions, postage, mileage charges, parking expenses, meal costs, courier fees, and
other similar expenses. The only objections raised by the Defendants to these costs are
11
that they are vague and relate to claims on which Hixon did not prevail. For the reasons set
forth above, the Court rejects those arguments.
The Court pauses, however, to address a matter not raised by the parties. Generally
speaking, costs may be taxed against the losing party under Federal Rule of Civil Procedure
54(d), but such costs are limited to the items specifically enumerated in 28 U.S.C. 1920.
See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987) ( 1920 defines
the term costs as used in Rule 54(d).); accord Pershern v. Fiatallis N. Am., Inc., 834 F.2d
136, 140 (8th Cir. 1987) (citing Crawford Fitting for the proposition that not all expenses
of litigation are costs taxable against the losing party). Subsequent to Crawford Fitting,
some courts held that an award of costs under Section 1988 could include items beyond
those listed in Section 1920. The Supreme Court rejected that conclusion in West Virginia
University Hospitals, Inc. v. Casey, stating that [i]n Crawford Fitting we held that the word
costs in Federal Rule of Civil Procedure 54(d) is to be read in harmony with the word
costs in 28 U.S.C. 1920, and we think the same is true of the word costs in 1988.
499 U.S. 83, 87 n.3 (1991) (emphasis added). Many of the items for which Hixon seeks
reimbursement here e.g., postage, parking, meals are not listed under Section 1920.
Following Casey, therefore, those items do not appear to be reimbursable under Section
1988.
Nevertheless, the Eighth Circuit has held that costs other than those listed in Section
1920 may be recovered under Section 1988, as long as they are of the kind normally
charged to clients by attorneys; such costs are considered part of the attorneys fee
12
awarded to the prevailing party. Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996)
(per curiam) (citing, inter alia, Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d
624, 639 (6th Cir. 1979) (some expenses are included in the concept of attorneys fees, as
incidental and necessary expenses in furnishing effective and competent representation, and
thus are authorized by section 1988) (citations omitted)). The Defendants have nowhere
argued that Hixon cannot recover meal charges, postage expenses, and other costs not
specifically enumerated in Section 1920, nor have they argued that such costs are not
normally charged to clients by attorneys. Accordingly, the Court concludes that all of the
costs Hixon seeks totaling ,141.77 may be reimbursed under Section 1988,
pursuant to Pinkham.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiff Aljuan Hixons Motion for Attorneys Fees and Costs Under 42
U.S.C. Section 1988 (Doc. No. 139) is GRANTED IN PART and DENIED IN PART as
follows: Plaintiff Aljuan Hixon shall recover of Defendants Mario Hernandez and the City
of Golden Valley, jointly and severally, the sum of 8,849.27, comprising 3,707.50
in attorneys fees and ,141.77 in costs.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 13 , 2007 s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
 

 
 
 

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