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1 DECONCINI MCDONALD YETWIN & LACY, P.C. 2525 EAST BROADWAY BLVD., SUITE 200 T 2 UCSON, AZ 85716-5300 (520) 322-5000 3 Lisa Anne Smith (AZ #16762) 4 lasmith@dmyl.com Sesaly O. Stamps, Esq. (AZ #25773) 5 sstamps@dmyl.com 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 ROY and JOSIE FISHER, et al., No. 74-CV-90-TUC-DCB 9 (lead case) Plaintiffs, 10 UNITED STATES OF AMERICA, DEFENDANT TUCSON UNIFIED 11 12 13 ANITA LOHR, et al., 14 15 16 and 17 SIDNEY L. SUTTON, et al., 18 19 20 MARIA MENDOZA, et al., 21 Plaintiffs, Defendants-Intervenors. No. 74-CV-204-TUC-DCB (consolidated case) Defendants, vs. Plaintiff-Intervenor, SCHOOL DISTRICTS RESPONSE TO THE MENDOZA PLAINTIFFS MOTION FOR AN AWARD OF ATTORNEYS FEES (Assigned to: Honorable David C. Bury)

22 UNITED STATES OF AMERICA, 23 24 vs. 25 TUCSON UNIFIED SCHOOL DISTRICT NO. ONE, et al., 26 Defendants. Plaintiff-Intervenor,

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The Tucson Unified School District, by and through counsel undersigned, hereby

2 responds to the Mendoza Plaintiffs Motion for an Award of Attorneys Fees and its 3 4 5 6 7 I. 8 9 10 11 12 requested; and (3) an award based on the excessive number of hours for which Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Introduction The Mendoza Plaintiffs seek a total award of $718, 813.38. The District objects to (1) an award based on the hourly rates requested by the Mendoza Plaintiffs; (2) an award that includes payment for time entries that are insufficiently detailed to support the amount Memorandum in support of the same. This Response is supported by the following

13 reimbursement is sought and, in general, the excessive amount of the fee request. 14 II. 15 16 17 18 19 separate lawsuit was filed in 1975 by the Mendoza Plaintiffs representing Mexican American 1 students in the District. The United States moved to intervene in 1976 and General Background This 1983 action was initiated in 1974 by the Fisher Plaintiffs, representing African American students in the Tucson Unified School District (the District). A

20 intervention was granted. The cases were consolidated and tried to the Court in 1977. The 21 Court entered a ruling in June 1978 and notices of appeal were filed. Rather than pursuing 22 23 Court on August 31, 1978. 24 25
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these appeals, the Parties entered into a Stipulation of Settlement that was approved by the

26

In the Unitary Status Plan adopted by the Court in February 2013, the Parties generally refer to the Mendoza Plaintiffs as Latino rather than Mexican American. 2

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In January 2005, the District filed a Petition for Unitary Status with supporting

2 documentation. The Parties litigated various aspects of the Petition until the District Court 3 4 5 6 7 the District cross-appealed and the case was argued to the Ninth Circuit in May 2011. In July 2011, the Ninth Circuit remanded the case to the District Court for further proceedings. In an Order dated January 6, 2012, the terms of which were negotiated by the granted unitary status and dismissed the case in December 2009. The Plaintiffs appealed,

8 Parties, the Court appointed Dr. Willis D. Hawley as the Special Master. The January 6 9 10 11 12 path to unitary status within four school years. From approximately June through Order set forth the obligations of the Special Master. Chief among these duties was the requirement that he create a Unitary Status Plan (USP) designed to outline the Districts

13 December 2012, the Parties engaged in discussions and negotiations, culminating in the 14 submission of a Unitary Status Plan to the Court, most of which was agreed to by the 15 Parties subject to specific identified areas of disagreement. The Parties briefed the disputed 16 17 18 19 in an Order dated February 19, 2013, the final USP was adopted. The USP included a provision allowing the private Plaintiffs to submit informal requests for attorneys fees and issues to the Court, the Court ruled, a final USP was drafted incorporating these rulings and

20 to file formal applications if the fees could not be negotiated. The Plaintiffs submitted 21 applications for fees in July, 2013. On September 11, 2013, pursuant to this Courts order, 22 23 MacDonald. The Parties were unable to reach an agreement regarding the fee requests. 24 25 26 3 the Parties participated in a settlement conference facilitated by Federal Magistrate Bruce

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1 II. 2 3 4 5 6

Legal Factors in Determining Fee Awards To determine an appropriate award of fees in civil rights cases, the court must

calculate the lodestar amount by multiplying a reasonable number of hours for the work billed by a reasonable billing rate. See Hensley v. Eckerhart, 461 U.S. 424, 432 (1983). A reasonable legal fee is one that is adequate to attract competent counsel, but does not

7 produce windfalls to attorneys. Id. 430, n. 4. 8 9 10 11 12 13 Reed v. Rhodes, 934 F.Supp. 1492, 1496-97 (N.D. Oh 1996), quoting Johnson Georgia 14 15 Highway Express, Inc., 488 F.2d 714, 719-20 (5th Cir. 1974). Additionally, because every [C]ourts must remember that they do not have a mandate . . . to make the prevailing counsel rich. Concomitantly, [the Civil Rights Act statutes] should not be implemented in a manner to make the private attorney generals position so lucrative as to ridicule the public attorney general. The statute was not passed for the benefit of attorneys but to enable litigants to obtain competent counsel worthy of a contest with caliber of counsel available to their opposition.

16 dollar of an excessive fee award is a dollar diverted from the education of the Districts 17 student enrollment and from the Courts ability to efficiently and effectively implement its 18 19 20 21 22 III. The hourly rates requested by the Mendoza Plaintiffs are not reasonable. To determine a reasonable billing rate, the court must determine the prevailing various remedial orders . . . the fiscal condition of the District is material . . . to emphasize the necessity for a more scrutinizing review of legal fee submissions. Id. at 1497.

23 market rate in the relevant community. Blum v. Stenson, 465 U.S. 886, 895 (1984). The 24 relevant legal community in the lodestar calculation is generally the forum in which the 25 26 4 district court sits. Cotton v. City of Eureka, 889 F. Supp.2d 1154, 1161 (N.D. Cal. 2012),

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1 citing Mendenall v. NTSB, 213 F.3d 464, 471 (9th Cir. 2000); see also Manning v. School 2 Bd. Of Hillsborough County, 135 F.Supp.2d 1192 (M.D. Fla. 2001) (disregarding evidence 3 4 5 6 7 8 9 Court in Reed v. Rhodes accepted the direction of the Supreme Court in Hensley: That counsel for prevailing parties be paid, as is traditional with attorneys compensated by a fee-paying client, within the venue of the litigation, for all time reasonably expended on a matter. As nearly as possible, market standards within the community of the action should prevail, for that is the best way of ensuring that competent counsel will be available to all persons with bona fide civil rights claims. of attorney fee rates paid in civil rights cases in other locations). On this point the District

10 934 F.Supp. at 1498. 11 The burden is on the fee applicant to show that the rates requested are in line with

12 those prevailing in the community for similar services by lawyers of reasonably comparable 13 skill, experience, and reputation. Brown v. Unified School Dist., No. 501, Shawnee 14 County, Kan., 878 F.Supp. 1430, 1433 (D. Kan. 1995), quoting Blum v. Stenson, 465 U.S. 15 16 886, 895 n. 11 (1984) (rejecting contention that local counsel was not competent and 17 available to handle desegregation litigation). 18 19 20 court in Brown rejected the ACLUs contention that rates charged in the community where 21 22 23 24 25 26 5 the ACLUs headquarters were located were reasonable. [I]t does not seem logical that the relevant community for determining the market rate for counsel should be decided by the location of the headquarters of the organization advancing money for the lawsuit. The headquarters site is determined by arbitrary factors unrelated to the market or market rate for attorneys in this community. Furthermore, non-local counsel should not be permitted to charge the rates from their location of origin solely because that is where counsels firm or organization is based. The

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1 Id. at 1435. In Reed v. Rhodes, the Sixth Circuit affirmed the district courts decision to 2 reduce the rates sought by the plaintiffs counsel based on the reasoning in Coulter v. State 3 4 5 6 7 8 9 10 11 12 Thompson and $425 per hour for Nancy Ramirez. Both counsel state that these rates are [Attorneys] fees are different from the prices charged to well-to-do clients by the most noted lawyers and renowned firms in a region. Under these statutes a renowned lawyer who customarily receives $250 an hour in a field in which competent and experienced lawyers in the region normally receive $85 an hour should be compensated at the lower rate. We therefore apply the principle that hourly rates should not exceed the market rates necessary to encourage competent lawyers to undertake the representation in question. 179 F.3d at 472. Here, the Mendoza Plaintiffs seek an award based on a rate of $550 per hour for Lois of Tennesse, 805 F.2d 146, 149 (6th Cir. 1986):

13 reduced from their customary rates, set pursuant to Los Angeles standards, of $650 and 14 $500 per hour respectively. These proposed rates significantly exceed the prevailing The rate sought by Lois

15 market rate in Tucson, Arizona for civil rights litigators. 16 17 18 19

Thompson is at the very top end of the spectrum for legal rates charged by commercial litigators to fee-paying clients in Tucson. The requested rates even exceed the prevailing rates charged in the Phoenix area, which is a larger metropolitan area and generally

20 commands higher legal rates than the Tucson area. 21 22 23 24 25 26 6 As reflected in the attached affidavits of Tucson attorneys John Gabroy and Peter Akmajian, a reasonable rate for litigation cases in Tucson is much lower than that being

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1 sought by Mendoza plaintiffs. See Exhibit A. 2 Mr. Gabroy has over thirty-four years of 2 experience and emphasizes commercial and civil rights litigation. 3 4 5 6 7 their personal familiarity with their firms rates and those of other firms in Tucson, opine that experienced commercial litigators typically bill between $300 and $450 per hour. These rates are consistent with the findings in various court decisions. In Arizona Mr. Akmajian is a

litigator with twenty-seven years of experience. Mr. Gabroy and Mr. Akmajian, based on

8 Department of Law, Civil Rights Division v. ASARCO, L.L.C., 2011 WL 6951842, *5 (D. 9 10 11 12 Armand Salese as evidence of the current prevailing rates in the community. Mr. Salese, Ariz. 2011), Tucson-based counsel Jenne Sandy Forbes sought an award of fees pursuant to 1988 at the rate of $300 per hour. The plaintiff in that case submitted the affidavit of

13 who was noted to be an AV rated lawyer with nearly forty years of experience litigating 14 employment and civil rights cases averred that lawyers in Tucson charge in the range of 15 $300 to $450 per hour and that Ms. Forbes hourly rate of $300 was fair and reasonable. 16 17 18 19 Arizona District Court judge ordered an award of fees to renowned Arizona civil rights attorney Stephen Montoya at the rate of $350 per hour. See Exhibit B. In support of his In Cruz Young v. Columbia Sussex Corp, dba Phoenix Airport Marriot Hotel, an

20 request for fees, Mr. Montoya submitted an affidavit in which he made avowals regarding 21 his twenty-two years experience as a civil rights litigator and his knowledge that rates 22 23 Smith v. Barrow Neurological Institute, 2013 WL 2897778, *1 (D. Ariz. 2013), in support 24 25 These affidavits were originally submitted as attachments to the Districts objection to the 26 Plaintiffs applications for attorneys fees in the Ninth Circuit appeal of the grant of unitary status. D.C. Nos. 74-cv-00090-DCB and 74 cv-00204-DCB. 7
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charged by similarly situated lawyers in Phoenix ranges from $400 to $450 per hour. Id. In

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1 of a fee request pursuant to 42 U.S.C. 1988, the law firm of Snell and Wilmer submitted a 2 declaration that hourly rates for attorneys ranged from $160 to $285 per hour. The court 3 4 5 6 with the Phoenix legal market. See also Vesecky v. Wilshire Aspirations, LLC, 2012 WL 715564, *11 (D. Ariz. 2012) (finding rate of $375 reasonable for experienced civil rights concluded a rate of $222.50 for attorneys was reasonable based on the courts familiarity

7 attorney); Wilson v. Yavapai County Sheriffs Office, 2012 WL 3108843, *4 (D. Ariz. 2012) 8 ( 1988 request by attorney with 22 years of experience for hourly rate of $205-reduced 9 10 11 12 that defendant sought $535 per hour, which was well above the reasonable prevailing rate from customary rate of $300-was reasonable for this type of work within the Phoenix area); Rhett v. Sausalito Foods, LLC, 2009 WL 2055217, *1 (D. Ariz. 2009) (observing

13 in the Phoenix community). 14 In light of the foregoing, it is clear that the rates requested by counsel for the

15 Mendoza Plaintiffs are not consistent with the prevailing market rates in Tucson, Arizona. 16 17 18 19 in general terms that the rates sought by the Mendoza Plaintiffs are reasonable and consistent with prevailing rates in Tucson. But Mr. Hinderaker does not state his hourly The Mendoza Plaintiffs offer the affidavit of Tucson attorney, John Hinderaker, who avers

20 rate, nor does he identify by name a single Tucson attorney, experienced in civil rights 21 litigation or otherwise, who charges comparable rates to those requested here. 22 23 Willis, who averred that his hourly rate of $510 was among the highest hourly rates charged 24 25 in Tucson. The District originally obtained and submitted this affidavit by Mr. Willis in The Mendoza Plaintiffs also attach as an exhibit the affidavit of Tucson attorney Jeff

26 support of its objection to the Plaintiffs fee applications in the Ninth Circuit appeal of the 8

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1 grant of unitary status. The District did so for the purpose of establishing the top end of 2 legal rates charged to well-to-do fee-paying commercial clients in Tucson. Reed, 179 3 4 5 6 rate of over $500 per hour for civil rights litigators in Tucson. The Mendoza Plaintiffs attempt to justify their request for rates that exceed the F.3d at 472. But Mr. Willis is not a civil rights attorney and his affidavit does not support a

7 prevailing Tucson rate by pointing to their alleged inability to associate with local counsel. 8 The Ninth Circuit has held that rates outside of the forum where the District Court sits may 9 10 11 12 required to handle properly the case. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. be appropriate if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization

13 1992). The Mendoza Plaintiffs, however, have not demonstrated any efforts to find local 14 counsel since 2006, 3 and they have failed to offer any evidence that the prevailing market 15 rates in Tucson would preclude the attraction of competent counsel in this case. Barjon v. 16 17 18 19 20 21 22 The Mendoza Plaintiffs did attempt to associate local counsel in 2004, however, when the Court refused to grant an interim award of fees, that attorney withdrew. See Exhibit 5 to 24 Dec. of L. Thompson, Mendoza Plaintiffs Memorandum. The Court also rejected a request in 2005 to appoint local counsel noting that MALDEF was capable of continuing to 25 represent the Mendoza Plaintiffs. See Exhibit 6 to Dec. of L. Thompson, Mendoza 26 Plaintiffs Memorandum. This conclusion does not mean, however, that MALDEF is entitled to charge for rates higher than the prevailing rates in Tucson. 23 9
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Dalton, 132 F.3d 496 (9th Cir. 1997).

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In light of the foregoing, the District respectfully urges that any award for the

2 Mendoza Plaintiffs be calculated based upon rates between $300 and $350 per hour for Lois 3 4 5 6 7 in the litigation and must submit evidence in support of the hours worked. Welch v. 8 9 Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007), citing Gates v. Deukmejian, As a general matter, block-billing is not well IV. The Mendoza Plaintiffs should not be awarded payment for time entries that are insufficiently detailed to support the amount requested. The fee applicant bears the burden of documenting the appropriate hours expended Thompson and between $235 and $270 per hour for Nancy Ramirez. 4

10 987 F.2d 1392, 1397 (9th Cir. 1992).

11 regarded. [B]lock billing makes it more difficult to determine how much time was spent 12 on particular activities. Id., citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 13 (D.C. Cir. 2004); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (holding that 14 applicant should maintain billing time records in a manner that will enable a reviewing 15 16 court to identify distinct claims). 17 18 19 20 21 22 23 24 25 Ms. Ramirez seeks to be compensated at a rate that is approximately seventy-seven 26 percent of Ms. Thompsons rate. Applying this same ratio to a rate range of $300 to $350 results in an hourly rate range of $232 to $269.50. 10
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Pursuant to Local Rule 54.2, Fed. R. Civ. P., The party seeking an award of fees must adequately describe the services rendered so that the reasonableness of the charge can be evaluated. In describing such services, however, counsel should be sensitive to matters giving rise to issues associated with the attorney-client privilege and attorney work-product doctrine, but must nevertheless furnish an adequate nonprivileged description of the services in question. If the time descriptions are incomplete, or if such descriptions fail to adequately describe the service rendered, the court may reduce the award accordingly.

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1 Examples are set forth in the rule with regard to telephone conferences. For telephone 2 conferences, the rule specifically provides that the time entry must identify all participants 3 4 5 6 With regard to how time is billed, courts disapprove of the use of quarter-hour increments instead of the more traditional tenth of an hour. In addressing this issue, one and the reason for the telephone call.

7 district court noted that [s]uch a calculation-apparently harmless on its face-will over the 8 course of litigation as complex as this add up to tens of thousands of dollars in unearned 9 10 11 12 1995). In Welch, 480 F.3d at 948-949, the Ninth Circuit upheld a district courts decision legal fees. Zucker v. Occidental Petroleum Corp., 968 F.Supp. 1396, 1403 (C.D. Cal. 1997); see also Edwards v. Natl Business Factors, Inc., 897 F.Supp. 458, 461 (D. Nev.

13 to reduce a fee award by twenty percent to adjust for quarter-hour billing observing that 14 the court found the hours were inflated because counsel billed a minimum of 15 minutes 15 for numerous phone calls and emails that likely took a fraction of the time. Id.; see also 16 17 18 19 (reducing award by percentage to account for quarter-hour billing practice); Lee v. Sun Life Assurance Co. of Canada, 2010 WL 2231943, *5 (D. Or. 2010) (reducing all quarter-hour Lopez v. San Francisco Unified School Dist., 385 F.Supp.2d 981, 993 (N.D. Cal. 2005)

20 time entries to one-tenth hour). 21 22 23 forth all of the time entries by Ms. Thompson that are either block-billed or that 24 25 inadequately describe the task by (1) failing to identify the person(s) participating in Here, the time entry sheets submitted by Lois Thompson are replete with blockbilled entries and inadequate descriptions. Exhibit C attached to this Memorandum sets

26 teleconference, (2) failing to identify the sender or recipient of an email, or (3) failing to 11

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1 identify the subject of the email or teleconference. The omission of the identity of persons 2 is particularly troublesome because, to the extent the identity may be Ms. Ramirez, it is 3 4 5 6 conferring with each other in order to determine whether such time is unreasonably excessive. Furthermore, all of Ms. Thompsons time entries are billed by the quarter-hour. difficult to properly evaluate the amount of time Ms. Ramirez and Ms. Thompson spent

7 Given that there are hundreds of telephone calls and emails set forth in the Ms. Thompsons 8 time entries, it is highly probably that many of these calls or emails took a fraction of a 9 10 11 12 The time entry sheets submitted by Nancy Ramirez do not contain the same types of quarter hour to complete. But again, it is impossible to tell for certain because of the vagueness of the descriptions and the lumping of tasks together under single time entries. 5

13 deficiencies, but Ms. Ramirezs time entries are illustrative of the level of duplication of 14 effort that has occurred as a result of having two attorneys represent the Mendoza Plaintiffs. 15 As set forth in Exhibit D, both Ms. Ramirez and Ms. Thompson participated in almost 16 17 18 19 counsel for one or more of the other parties. In order to control its own legal fees, the District generally does not pay for more than one of its own attorneys to participate in any every group teleconference or group meeting involving experts, the Special Master, and/or

20 given meeting. As a practical matter, when two attorneys from undersigned counsels 21 office do participate in the same meeting or teleconference, the time for one of the attorneys 22 23 24 25 Proskauer Rose has been criticized before for its practice of block-billing and using 26 quarter-hour increments. See GoPets v. Hise, 2009 WL 412204, *3, (C.D. Cal. 2009), vacated on other grounds by 657 F.3d 1024 (9th Cir. 2011). 12
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is written off. See Exhibit E, affidavit of Lisa Anne Smith at 6. It is unreasonable to

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1 allow Plaintiffs counsel to spend the Districts money on attorney time that the District 2 would not pay to its own counsel. 3 4 5 6 entry sheets submitted by Mendoza Plaintiffs, it is appropriate to impose reductions. See Fabbrini v. City of Dunsmuir, 631 F.3d 1299 (9th Cir. 2011) (If counsel cannot further In light of the duplication of effort and/or serious deficiencies reflected in the time

7 define his billing entries as to meaningfully enlighten the court of those related to [the fee 8 claim], then the trial court should exercise its discretion in assigning a reasonable 9 10 11 12 hours by a fixed percentage in face of a voluminous fee application). The District has set percentage to the entries, or simply cast them aside.) (internal citation and quotation marks omitted); Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993) (court may reduce claimed

13 forth proposed reductions at the end of this Memorandum, based on the time entries 14 identified in Exhibits C and D. 15 V. 16 17 18 19 Such costs are not recoverable. In Agster v. Maricopa Cnty., 486 F. Supp. 2d 1005, 1019 (D. Ariz. 2007), the court concluded that expert witness fees are not recoverable in 1983 Reimbursement for expert witness expenses is not supported by law. Counsel for Mendoza Plaintiffs seek $35,662.26 in expert witness fees and expenses.

20 actions. 21 22 23 24 25 26 In West Virginia Univ. Hosp. Inc. v. Casey, 499 U.S. 83, 102, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), the Supreme Court concluded that 42 U.S.C. 1988 conveys no authority to shift expert fees in civil rights cases to the losing party. Prevailing parties therefore cannot recover more than the witness fee provided in 28 U.S.C. 1920 and 1821 for testifying experts and can recover nothing for services rendered by experts in a nontestimonial capacity. After Casey, Congress amended 1988 to specifically provide for the recovery of expert fees in cases brought to enforce a provision of 42 U.S.C. 13

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1 2 3

1981 or 1981a. 42 U.S.C. 1988(c). Congress could have amended 1988 to allow for expert fees in all cases covered by 1988(b), but did not. The Casey decision therefore stands with regard to 1983 cases. See Jenkins v. State of Missouri, 158 F.3d 980, 983 (8th Cir.1998).

4 (Emphasis added.). The court concluded that because the plaintiffs in Agster had pursued 5 1983 claims, they could not shift the burden of their expert fees to the defendants. See also 6 Ruff v. County of Kings, 700 F.Supp. 2d 1225, 1243 (E.D. Cal. 2010) (observing that cases 7 8 9 issue is a 1983 action. Accordingly, Mendoza Plaintiffs are not entitled to reimbursement are uniform that Section 1988(c) does not apply to a Section 1983 action). The case at

10 for their expert witness expenses. 11 Accordingly, the District requests that the Mendoza Plaintiffs request for

12 $41,885.88 be reduced by $35,662.26 to eliminate expert witness expenses. 13 14 15 VI. The number of hours and the overall amount sought by the Mendoza Plaintiffs are excessive. The Mendoza Plaintiffs have sought a total of $676,927.50 in fees for a period

16 commencing July 19, 2011 and ending on or about February 18, 2013. The Mendoza 17 Plaintiffs seek compensation for 1385.85 hours during this time period at rates ranging 18 between $425 to $550. In contrast, the Districts attorneys charged $215 per hour for 19 20 approximately the same time period and billed a total of $153,164 for 787 hours of work. 21 See Exhibit E at3-4. The Districts outside counsel charge contract rates, which are 22 23 is notable if only to emphasize the caution that a fee award should be reasonable but should 24 25 not result in a windfall to attorneys, Hensley, 461 U.S. at 432, and should not insult the admittedly below the prevailing market rate for civil rights litigators. Still, the comparison

26 public attorney general. Reed v. Rhodes, 934 F.Supp. at 1496-97. 14

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As noted above, in addition to the excessive rates being charged by Mendoza

2 Plaintiffs and the deficiencies in time entries, the hours sought by Ms. Thompson and Ms. 3 4 5 6 labor. See Exhibit D. By contrast, the Districts time was spent responding to and working with counsel for two different Plaintiff classes, each of which presented significantly Ramirez show a significant amount of duplicative work and inefficient use of time and

7 distinct concerns and priorities that had to be addressed, negotiated and incorporated into 8 the Unitary Status Plan. The fact that the District was able to do so in roughly half the 9 10 11 12 13 unreasonably excessive number of hours. 6 Every dollar paid to the attorneys in this matter is a taxpayer dollar. Every dollar amount of time that the Mendoza Plaintiffs incurred in litigating only their side of the case is compelling evidence that counsel for the Mendoza Plaintiffs have requested an

14 paid is a dollar that cannot be spent on programs to be implemented under the Unitary 15 Status Plan. As the Supreme Court of the United States has observed, 16 17 18 19 20 Perdue v. Kenny A. ex rel. Winn., 130 S.Ct. 1662, 1676-77 (2010). 21 22 23 In addition to the general concerns about excessive hours, the District notes that Ms. 24 Ramirez charged over 25 hours for responding to the State of Arizonas motion to intervene. See Exhibit D. As the court may recall, the District took no position on the 25 States motion. This fight was not a fight with the District. If MALDEF believes it was 26 entitled to fees for prevailing on this particular issue, it should have sought such an award against the State. 15
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In many cases, attorneys fees awarded under 1988 are not paid by the individuals responsible for the constitutional or statutory violations on which the judgment is based. Instead, the fees are paid in effect by state and local taxpayers, and because state and local governments have limited budgets, money that is used to pay attorneys fees is money that cannot be used for programs that provide vital public services.

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In order to preserve the maximum amount of funds available to implement the USP,

2 it would be appropriate to reduce the fees sought by Mendoza Plaintiffs as follows: 3 4 5 6 her request for 730.75 hours, impose reductions as follows: (a) eliminate 300.85 hours for entries that are deficient as reflected in Exhibit C and (b) impose a twenty percent reduction 1. Award between $300 and $350 per hour for Ms. Thompsons time and, from

7 on the remaining 429.9 hours to account for quarter-hour billing (resulting in an additional 8 85 hours deducted). 9 10 11 12 request for 655.10 hours, impose the following reductions: (a) eliminate the 184.7 hours This yields a total of 344.90 hours and an award ranging from

$103,470.00 to $120,715.00. 2. Award between $235 to $270 per hour for Ms. Ramirezs time and from her

13 spent on group teleconferences and meetings at which both Ms. Ramirez and Ms. 14 Thompson were present, as reflected in Exhibit D, to adjust for unnecessary duplication in 15 effort and (b) eliminate the 25.2 hours spent by Ms. Ramirez on the State of Arizonas 16 17 18 19 in the range of $104,622.00 to $120,204.00. Using these proposed reductions would yield a combined hours total of 790.10 and a Motion to Intervene. This results in a total of 445.20 hours for Ms. Ramirez and an award

20 resulting award ranging from $208,092.00 to $240,919.00. These proposed reductions do 21 not account for the duplication of effort by Ms. Thompson and Ms. Ramirez in reviewing 22 23 explains that they engaged in some division of labor by topic, it generally appears that they 24 25 both reviewed many if not most of the documents generated in this case. Because of the numerous documents, pleadings and drafts circulated in this case. Although counsel

26 deficiencies in the time entries submitted by Ms. Thompson and the general volume of 16

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1 entries that would need to be compared, it is not possible to do a precise calculation of this 2 duplication of effort. The Districts proposed reductions have been calculated to take this 3 4 5 spend on the period of time in question at a reasonable rate. CONCLUSION In light of the foregoing, the District respectfully requests that the any award to issue into account to produce what is, on balance, a reasonable total number of hours to

6 VI. 7

8 Mendoza Counsel be for no more than between $208,092.00 and $240,919.00 and that any 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 17 /s/ Lisa Anne Smith Lisa Anne Smith Sesaly O. Stamps Counsel for Defendant Tucson Unified School District DeCONCINI McDONALD YETWIN & LACY, P.C. award of costs not include any amount for expert witness fees and expenses. DATED this 27th day of November, 2013.

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CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2013, I electronically transmitted the attached 3 document to the Clerks Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 5 6 7 8 9 10 11 12 13 14 I hereby certify that on November 27, 2013, I electronically transmitted the attached 15 document to the following, who is not a CM/ECF registrant: 16 Special Master 17 Dr. Willis D. Hawley wdh@umd.edu 18 19 20 21 22 23 24 25 26 18
I:\FILES\DOCS\TUCS03\130039\PLDG\OE7658.DOCX

Rubin Salter, Jr. rsjr@aol.com Zoe Savitsky Zoe.savitsky@usdoj.gov Anurima Bhargava Anurima.bhargava@usdoj.gov Lois D. Thompson, lthompson@proskauer.com Nancy Ramirez, nramirez@maldef.org

/s/ Rhonda Letzkus