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DONNA Y.L. LEONG, 3226 Corporation Counsel CURTIS E. SHERWOOD, 7851 Deputy Corporation Counsel 530 S. King Street, Room 110 City and County of Honolulu Honolulu, Hawai‘i 96813 Telephone: (808) 768-5134 Facsimile: (808) 768-5105 Email address: csherwood@honolulu.gov Attorneys for Defendants ANDREW LUM and the CITY AND COUNTY OF HONOLULU IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) ) CITY AND COUNTY OF ) HONOLULU; ANDREW LUM, IN HIS ) PERSONAL AND OFFICIAL ) ) CAPACITY; JOHN DOES 1-10 IN THEIR PERSONAL AND OFFICIAL ) ) CAPACITIES, ) ) ) Defendants. HAWAII DEFENSE FOUNDATION, CHRISTOPHER BAKER, and DEREK SCAMMON, CIVIL No. CV12-00469 JMS RLP DEFENDANTS CITY AND COUNTY OF HONOLULU AND ANDREW LUM’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR ATTORNEY FEES FILED FEBRUARY 4, 2014; DECLARATION OF COUNSEL; CERTIFICATE OF SERVICE

DEFENDANTS CITY AND COUNTY OF HONOLULU AND ANDREW LUM’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR ATTORNEY FEES FILED FEBRUARY 4, 2014

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................. iv I. II. III. INTRODUCTION..................................... Error! Bookmark not defined. PROCEDURAL BACKGROUND............................................................ 3 DISCUSSION ........................................................................................... 6 A. Plaintiffs’ Memorandum in Support of their Motion Violates Local Rule 7.5 and Should Be Stricken ........................................................ 6 B. Plaintiffs Are Not Entitled to Recover Unreasonable Attorneys’ Fees . 6 1. PLAINTIFFS REQUESTED HOURLY RATES ARE GROSSLY EXCESSIVE ....... 8
A. B.

DETERMINATION OF A REASONABLY HOURLY RATE .................. 8 REASONABLE HOURLY RATES FOR COUNSEL ARE $180, $175 AND $125 ............................................................................... 10

2. PLAINTIFFS ARE NOT ENTITLED TO RECOVER UNREASONABLE ATTORNEYS’ FEES........................................................................... 13
A.

PLAINTIFFS CANNOT RECOVER AN UNREASONABLE AMOUNT OF FEES INCURRED TO RESEARCH, DRAFT AND REVISE SUBMISSIONS .......................................................................... 14 PLAINTIFFS CANNOT RECOVER FEES THAT ARE NOT ADEQUATELY DESCRIBED ....................................................... 18 PLAINTIFFS CANNOT RECOVER ATTORNEYS’ FEES FOR SECRETARIAL/PARALEGAL WORK ........................................... 20 PLAINTIFFS CANNOT RECOVER FOR DUPLICATE WORK ........... 21 TIME THAT IS BLOCK-BILLED SHOULD BE REDUCED ............... 22 TIME BILLED IN QUARTER-HOUR INCREMENTS ARE SUBJECT TO REDUCTION ....................................................................... 24

B. C. D. E. F.

3. PLAINTIFFS ARE NOT ENTITLED TO ANY FAVORABLE ADJUSTMENT TO THE LODESTAR CALCULATION.......................................................... 26 IV. CONCLUSION ....................................................................................... 26

ii

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TABLE OF AUTHORITIES Cases Aslam v. Malen & Assocs., 669 F.Supp.2d 275 (E.D.N.Y. 2009)-------------------20 Au v. The Funding Group, Inc., 2013 WL 1187919 (D. Haw. Mar. 21, 2013) ----22 City of Burlington v. Dague, 505 U.S. 557 (1992) ------------------------------------12 Davis v. City and County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992)- 7 Fischer v. SJB-P.D., Inc., 214 F.3d 1115 (9th Cir. 2000) ------------------------------ 6 Frankl v. HGH Corp., 2012 WL 1755423 (Ct.Sp.App. of Md. 1998)---------- 7,9,21 Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992) ---------------------------------13 Harris v. Trash Man, LLC, 2013 WL 1932715 (D. Haw. Apr. 16, 2013) -- 11,20,24 Heller v. District of Columbia, 832 F. Supp.2d 32 (2011) ----------------------------- 8 Hensley v. Eckerhart, 461 U.S. 424 (1983) --------------------------------------------- 6 I.T. ex rel. Renee T. v. Dep’t of Educ., Hawaii, 2012 WL 6969333 (D. Haw. Nov. 30, 2012) ----------------------------------------23 Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987) ------------------------ 8 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) --------------------7,26 Morales v. City of San Rafael, 96 F. 3d 359, 364 n. 9 (9th Cir. 1996) --------------- 7 Nat’l Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988) ------------------12 Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987) --------------------------------------------------------------------- 6 Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998)-----------------------22 Signature Homes of Hawaii, LLC v. Cascade Sur. & Bonding, Inc., 2007 WL 2258725 (D. Haw. Aug. 3, 2007)------------------------------------------22 Shea v. Kahuku Hous. Found., Inc., 2011 WL 1261150 (D. Haw. Mar. 31, 2011) ----------------------------------------12 Soler v. G & U, Inc., 801 F.Supp. 1056 (S.D.N.Y. 1992) ----------------------------13 Sound v. Koller, 2010 WL 1992198 (D. Haw. Mar. 5, 2010) -------------------- 12,20 Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632 (D. Haw. 1993)------13 U.S. Bank Nat. Ass’n v. Yamamura, 2009 WL 5851091 (D. Haw. Sept. 30, 2009) ---------------------------------------12 Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002) ----------------------------------- 8 Wereb v. Cnty. of Maui, 2010 WL 431976 (D. Haw. Feb. 4, 2010) ----------------11 World Triathlon Corp. v. Dunbar, 539 F. Supp. 2d 1270 (D. Haw. 2008)----------24 Yamada v. Weaver, 2012 WL 6019363 (D. Haw. Aug. 30, 2012) -------------- 11,12 Rules Local Rule 7.5 ----------------------------------------------------------------------------6,18 Local Rule 54.3(d) ----------------------------------------------------------- 6,10,14,18,19
iii

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COME NOW, Defendants CITY AND COUNTY OF HONOLULU and ANDREW LUM (collectively hereinafter “City Defendants”) by and through their attorneys, Donna Y.L. Leong, Corporation Counsel, and Curtis E. Sherwood, Deputy Corporation Counsel, and hereby file their Memorandum in Opposition to Plaintiffs’ Motion for Attorneys Fees filed February 4, 2014, currently set for determination by the Honorable Richard L. Puglisi. I. INTRODUCTION This case involves the Honolulu Police Department’s (“HPD”) Facebook page, the policies and practices applicable thereto and Captain Andrew Lum’s actions with regard to the content therein. On August 21, 2012, Plaintiffs filed a Complaint that asserted violations of the First and Fourteenth Amendments and due process, and (b) a Motion for Preliminary Injunction. These documents were served on the City that same day. However, a status conference with the Court was held the following day and within three days, the parties had reached a tentative understanding which rendered Plaintiffs’ Motion for Preliminary Injunction moot.1 See Dkt # 16. Beginning immediately thereafter, and concluding in January, 2013, the City and the ACLU, Plaintiffs’ designated proxy, negotiated a detailed and mutually agreeable policy for administration of the subject Facebook page. //
1

Defendants City and County of Honolulu and Andrew Lum are referred to collectively herein as the “City Defendants.” 1

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The negotiated agreement should have ended this litigation. Instead, Plaintiffs made a series of last-minute demands, including a requirement that the City stipulate to a declaratory judgment and then, that the City enter into a Consent Decree. Plaintiffs’ demands were unrelated to (and did not seek to change) the negotiated policy. While Plaintiffs ultimately abandoned both demands, their actions prolonged the litigation for another 15 months and caused Plaintiffs to incur substantial additional attorneys’ fees, despite the fact that they had been warned not to unnecessarily inflate their attorney’s fees. Plaintiffs now seek to recover $61,779.25 in attorneys’ fees and general excise tax thereon for a total of $64,690.29. See Motion for Attorneys’ Fees (“Motion”) at ¶ 7 and supporting Memorandum in Support (“MIS”), filed February 4, 2014. Plaintiffs base their request on 42 U.S.C. § 1988. Plaintiffs’ counsel – Alan Beck, Richard Holcomb and Brian Brazier – claim that they spent 81 hours, 75.1 hours and 45.75 hours, respectively, in the presentation of this case. Id. Plaintiffs assert that a reasonable hourly rate for counsels’ work is $250, $355 and $325, respectively. Plaintiffs’ request for attorneys’ fees should be rejected outright. As an initial matter, Plaintiffs’ Motion, MIS and supporting documentation violates Local Rules of Practice for the United States District Court for the District of Hawaii (“LR”) 7.5 and should be stricken in its entirety.

2

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Nevertheless, if the Court is inclined to award Plaintiffs some fees, Plaintiffs have not sustained – and cannot sustain – their burden to prove that the requested fees are reasonable and reflect the prevailing market rates in Hawaii. In fact, not only do Plaintiffs acknowledge that the requested hourly rates far exceed hourly rates awarded in this District for the most experienced attorneys (let alone counsel who graduated from law school within the last 10 years), Plaintiffs demand hourly rates comparable to “what attorneys in Washington, D.C. would expect.” See Motion at 25 n. 15. Further, counsels’ putative timesheets establish that substantial reductions to the hours recorded is required because the time billed: (a) relates to work that is excessive, redundant, or unnecessary; (b) violates LR 54.3(d)’s requirements for description and detail; (c) relates to work that is clerical (d) relates to work that is duplicative; (e) is block billed and billed typically in half-hour increments. For these reasons, the City Defendants respectfully request that this Court deny the Motion in its entirety, or at a minimum, substantially reduce the attorneys’ fees awarded as more specifically set forth below. II. PROCEDURAL BACKGROUND Almost immediately after this case was filed on August 21, 2012, the parties attended a Status Conference with Judge Seabright wherein counsel for the City Defendants made clear that (a) the City Defendants were probably willing to

3

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reform the subject Facebook policy and procedures and (b) Plaintiffs would have, or perhaps already had, their posting privileges restored. With Judge Seabright’s guidance, the parties tentatively agreed to negotiate a mutually acceptable policy. Plaintiffs allowed the ACLU to negotiate on their behalf. In very short order then, Judge Seabright first vacated the pending briefing deadlines on Plaintiffs’ Motion for Preliminary Injunction (8/24/12 Minutes, Document 16); and then determined that “[i]n light of the changes in the City and County’s position regarding public posting on the Honolulu Police Department’s Facebook page and upon agreement of the parties . . . .” the Motion for Preliminary Injunction was moot (9/5/12 Minutes, Document 17). After a lengthy negotiation, the City and the ACLU reached a mutually agreeable policy in January, 2013. The City Defendants drafted a Stipulated Dismissal and a Draft Settlement Agreement. However, shortly before the Rule 16 Scheduling Conference in January 2013, Plaintiffs informed City Defendants that they would not sign the document. They did not object to the terms of the negotiated agreement; rather, Plaintiffs demanded for the first time that the City stipulate to a declaratory judgment. Dec. Counsel, p. 3, ¶ 15. The City declined, and the parties attended the Rule 16 Scheduling Conference. The case then lingered until Plaintiffs indicated their intent to file a motion for summary judgment. The City Defendants tried again to fully and finally

4

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terminate the case, which had been effectively resolved but for Plaintiffs’ effort to hijack settlement with their last minute demand for a stipulated declaratory judgment. Although Plaintiffs abandoned their demand for a stipulated declaratory judgment, they next demanded a Consent Decree. As before, the demand for a Consent Decree had never been discussed between the City and Plaintiffs’ proxy, the ACLU, and was not a part of any agreement reached. For various reasons, the City was unwilling to stipulate to a Consent Decree. However, the City Defendants proposed a Stipulated Dismissal. Plaintiffs rejected this offer and filed their motion for summary judgment. The City Defendants filed a motion for judgment on the pleadings. While those motions were pending, counsel attended the Final Pre-Trial Hearing in December 2013. As a result of that conference, counsel negotiated agreeable language for a stipulated dismissal. The parties were extremely close to filing such a stipulation when, on approximately December 30, 2013, Plaintiffs made yet another last-minute demand. This time, the demand related to recovery of costs. As with their other demands, costs had never been discussed, and Plaintiffs’ demand was a complete surprise to the City Defendants. Having torpedoed a successful resolution of this matter yet again, the parties attended a settlement conference in early January 2014. Ultimately, the parties settled and a Stipulation For Dismissal With Prejudice And Order was filed January 21, 2014.

5

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III.

DISCUSSION A. Plaintiffs’ Memorandum in Support of their Motion Violates Local Rule 7.5 and Should Be Stricken LR 7.5 limits a memorandum in support of a motion to 30 pages or 9,000

words. See LR 7.5(a) and (b). Pursuant to Rule LR 7.5(e), if a memorandum exceeds 30 pages, the memorandum in support must include, among other things, “a certificate by the attorney . . . that the document complies with the applicable word count.” Plaintiffs’ Memorandum in Support is 36 pages. Plaintiffs did not include the required certification. Accordingly, the City Defendants respectfully request that this Court strike the Memorandum in Support in its entirety; or, at the very minimum, strike the last six pages. B. Plaintiffs Are Not Entitled To Recover Unreasonable Attorneys’ Fees Reasonable attorneys’ fees are generally based on the traditional “lodestar” calculation set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must determine a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. at 433. Once calculated, the “lodestar” is presumptively reasonable. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728 (1987). “However, in ‘rare and exceptional circumstances,’ a court may
6

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decide to adjust the lodestar figure based on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), which have not been subsumed in the lodestar calculation.” Frankl v. HGH Corp., 2012 WL 1755423, *4 (D. Hawaii 2012). The factors the Ninth Circuit articulated in Kerr are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr, 526 F.2d at 70.2 Plaintiffs request $61,779.25 in attorneys’ fees and general excise tax thereon for a total of $64,690.29. Neither the requested hourly rates, nor the time billed by counsel in this matter are reasonable and therefore require substantial reduction as detailed below. // //
2

Factors one through five have been subsumed in the lodestar calculation. See Morales v. City of San Rafael, 96 F. 3d 359, 364 n. 9 (9th Cir. 1996). Further, the Ninth Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567 (1992), held that the sixth factor, whether the fee is fixed or contingent may not be considered in the lodestar calculation. See Davis v. City and County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). 7

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1. Plaintiffs’ Requested Hourly Rates Are Grossly Excessive
A.

DETERMINATION OF A REASONABLE HOURLY RATE

A reasonable hourly rate takes into account the experience, skill, and reputation of the attorney requesting fees, and should reflect the prevailing market rates in the community. Webb v. Ada County, 285 F.3d 829, 840, n.6 (9th Cir. 2002). Plaintiffs bear the burden of producing satisfactory evidence, in addition to their declarations, demonstrating that the requested hourly rate reflects prevailing community rates for similar services. Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987); Heller v. District of Columbia, 832 F. Supp.2d 32, 38 (2011); see also LR 54.3(d) (a requesting party’s memorandum in support of a fee request “shall set forth . . . the customary fee for like work prevailing in the attorney’s community . . . .”). Plaintiffs maintain that reasonable hourly rates for Mr. Holcomb, Mr. Brazier and Mr. Beck are $355, $325 and $250, respectively.3 Based on the limited information provided by counsel and the overwhelming authority to the contrary, Plaintiffs’ requested hourly rates are grossly unreasonable.

3

The Motion and supporting declarations of Brain Brazier and Alan Beck request inconsistent hourly rates. For example, in the Motion, Plaintiffs request an hourly rate of $290 for Mr. Brazier. See Motion at 33. However, in his declaration, Mr. Brazier requests $325/hour. See Dec. B. Brazier at ¶ 18. Similarly, in the Motion, Plaintiffs request an hourly rate of $245 for Mr. Beck. See Motion at 33. However, Mr. Beck requests $250/hour. See Dec. A. Beck at ¶ 4. The total fees requested in the Motion, however, are based on the higher hourly rates requested in counsels’ declarations. 8

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Richard Holcomb. Mr. Holcomb graduated law school in 2004, and was admitted to the Tennessee State Bar sometime in 2005. He moved to Hawaii in May 2009, and was admitted to the Hawaii bar in 2009.4 Mr. Holcomb’s first time entry in this case is March 2012. At that time, Mr. Holcomb had been admitted to a bar for seven years. Mr. Holcomb asserts from “[l]ooking to all available sources, including the Laffey Matrix, published and unpublished cases from this Court and other courts, the prevailing cost of living in Hawai’i, and the novelty of the case involved,” that $355 per hour is a reasonable hourly rate for him. See Dec. R. Holcomb at ¶¶ 5-18.5 Brian Brazier. Mr. Brazier graduated from law school in 2006 and was admitted to practice in California that year. He moved to Hawaii and was admitted to practice law in Hawaii in October 2010. Dec. B. Brazier at ¶¶ 4-7, 10. When Mr. Brazier began to bill in this matter, July 2012, he had been admitted to a bar for 6 years. He reviewed the same factors as Mr. Holcomb, including the Laffey Matrix for attorneys with 8-10 years experience, and concluded that “$325/hour is a reasonable hourly rate” for him. Id. at ¶ 13.

4

Mr. Holcomb maintains that he was admitted to practice in Hawaii in July 2009. See Declaration of Richard L. Holcomb (“Dec. R. Holcomb”) at ¶ 10. However, records available from the Hawaii State Bar Association (http://hsba.org/resources/1/Status/active.htm) indicate that he was admitted in November 2009. 5 This Court has already considered and rejected the applicability of the Laffey Matrix to the determination of reasonable hourly rates awarded in this District. See Frankl v. HGH Corp., CV 10-00014 JMS, 2012 WL 1755423, *6 (D. Haw. Apr. 23, 2012) report and recommendation adopted, CV 10-00014 JMS, 2012 WL 1753644 (D. Haw. May 14, 2012). 9

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Alan Beck. It appears that Mr. Beck graduated from law school in 2007 and was admitted to the Hawaii bar in September 2009. See Dec. A. Beck at ¶¶ 4-5; http://hsba.org/resources/1/Status/active.htm. Mr. Beck’s first time entry in this case was January 2012, when he had been admitted to the Bar for a little over two years. Mr. Beck billed the majority of his hours (69 hours out of 81) in 2012. Id. at Exhibit “A.” Beck concluded after considering the same factors as Mr. Holcomb and Mr. Beck – including the Laffey Matrix for attorneys with 4-7 years experience – that “$250/hour is a reasonable hourly rate” for him. Id. ¶ 8.
B.

REASONABLE HOURLY RATES FOR COUNSEL ARE $180, $175 AND $125

Plaintiffs acknowledge that “[a]ttorneys’ fees are to be calculated to reflect the reasonable market value of their services in the legal community.” See MIS at 13. However, other than counsels’ own determination of a “reasonable hourly rate,” Plaintiffs do not submit any evidence of the “reasonable market value” of legal services in Hawaii, or otherwise seek to comply with LR 54.3(d)’s requirements. To the contrary, rather than seek to establish such a value, Plaintiffs (a) exhaustively cite cases that establish, without a single exception, that this District has never recognized hourly rates as high as those requested here for counsel with comparable experience (see MIS at 13-33); and (b) make clear that they do not seek hourly rates for the reasonable market value of legal services in

10

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Hawaii, but rather Washington D.C. Id. at 25 n.15 (emphasis added) (“counsel is only seeking what attorneys in Washington D.C. would expect[]”). This District has specifically rejected such an argument. Harris v. Trash Man, LLC, CV 12-00169 HG-KSC, 2013 WL 1932715, at *2 (D. Haw. Apr. 16, 2013) report and recommendation adopted, CV 12-00169 HG-KSC, 2013 WL 1932710 (D. Haw. May 7, 2013) (when confronted with multiple declarations that measured reasonableness of rates against the market rates in large cities in California, the Court stated: “the proper measure of reasonableness is whether the requested hourly rates are consistent with those in this district. Not only are Hawaii's prevailing market rates considerably lower than those in California, but the rates awarded here are even than those of Washington D.C. Therefore, Petitioner is not entitled to mainland hourly rates.”) (emphasis in original).6 Despite the absence of any evidence provided by Plaintiffs, “this Court is familiar with the prevailing rates in the community and the attorneys’ fee awarded in other cases in this district.” Wereb v. Cnty. of Maui, CV 09-00198 JMS-LEK, 2010 WL 431976, at *2 (D. Haw. Feb. 4, 2010). A reasonable hourly rate for an attorney with two to three years of experience at the time services were rendered, such as Mr. Beck, is $125. Yamada v. Weaver, CV 10-00497 JMS, 2012 WL 6019363, *4 (D. Haw. Aug. 30, 2012) report and recommendation adopted as
6

Unless otherwise indicated, all District of Hawaii cases cited herein were cited in the MIS and attached thereto.

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modified, CV 10-00497 JMS, 2012 WL 6019121 (D. Haw. Nov. 30, 2012) citing Shea v. Kahuku Hous. Found., Inc., CV 09–00480 LEK, 2011 WL 1261150, at *7 (D. Haw. Mar. 31, 2011) (finding that $125 per hour is reasonable for an attorney with three years experience).7 The range of reasonable hourly rates for attorneys with six to seven years experience, such as Mr. Brazier is $150-$175. Au v. The Funding Group, Inc., No. CV 11–00541 SOM–KSC, 2013 WL 1187919, at *8 (D. Haw. Mar. 21, 2013) (adopting finding that $165 is a reasonable hourly rate for an attorney with six years of experience); Yamada v. Weaver, 2012 WL 6019363 at *3 (finding $150 a reasonable hourly rate for attorney with six years experience); US Bank Nat. Ass’n v. Yamamura, CV08-00358 DAE-KSC, 2009 WL 5851091, *2 (D. Haw. Sept. 30, 2009) report and recommendation adopted, CIV 08-00358DAE-KSC, 2009 WL 3461288 (D. Haw. Oct. 27, 2009) (finding $175 reasonable for attorney with seven years experience). Recognized hourly rates for attorneys with seven to eight years of experience, such as Mr. Holcomb, range from $175 to below $185. U.S. Bank Nat. Ass’n, 2009 WL 5851091, at *2; Sound v. Koller, CV 09-00409 JMS-KSC, 2010
7

Counsel base their hourly rates on the amount of experience (i.e., years after bar admission) at the present time, rather than at the time services were rendered. See Exhibits “A” to Holcomb, Brazier and Beck Decls. at ¶¶ 23, 17, 12, respectively. However, historic rather than current rates should be employed for historic hours when the government is paying the bill. Nat’l Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988) (“[C]urrent rates may not be used when computing attorneys fees to be paid by the government. The district court should base the fee award on historic rates, those in effect at the time the attorney hours were expended.”).

12

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WL 1992198, at *4 (D. Haw. Mar. 5, 2010) report and recommendation adopted, CV 09-00409 JMS/KSC, 2010 WL 1992194 (D. Haw. May 19, 2010) (awarding hourly rate of $185 for attorney with nine years of experience). Based on the foregoing, the City Defendants respectfully request that the Court award hourly rates as follows: (a) Mr. Holcomb, $180.00; (b) Mr. Brazier, $175.00; and (c) Mr. Beck, $125.00. 2. Plaintiffs Are Not Entitled To Recover Unreasonable Attorneys’ Fees Beyond establishing a reasonable hourly rate, Plaintiffs bear the burden of proving that the fees and costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained. Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted). The Court must guard against awarding fees and costs that are excessive, and must determine which fees and costs were self-imposed and avoidable. Id. (citation omitted). This Court has “discretion to ‘trim fat’ from, or otherwise reduce, the number of hours claimed to have been spent on the case.” Soler v. G&U, Inc., 801 F. Supp. 1056, 1060 (S.D.N.Y. 1992) (citation omitted). Time expended on work deemed “excessive, redundant, or otherwise unnecessary” shall not be compensated. See Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992), as amended on denial of reh’g, (1993). Numerous deductions to Plaintiffs’ fees are necessary.8, 9
8

The Motion states that Mr. Holcomb billed 75.1 hours. However, in his declaration, Mr. Holcomb asserts: “Up to and including the instant motion and supporting declarations and 13

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A.

PLAINTIFFS CANNOT RECOVER AN UNREASONABLE AMOUNT OF FEES INCURRED TO RESEARCH, DRAFT AND REVISE SUBMISSIONS

Counsel spent 39.5 hours to research, draft and revise the Complaint: Holcomb (7 hours)

Beck (32.5 hours)

having exercised billing judgment, I have reasonably expended 59.1 hours pursuing this matter. These hours are broken down and itemized in Exhibit A attached to this Declaration.” See MIS at Dec. R. Holcomb, Exhibit “A” at ¶ 26 (emphasis added). Exhibit “A” sets forth 75.1 hours, which is also the amount used to calculate the total fees requested for Mr. Holcomb. 9 As detailed below, counsels’ time records (which fail to comply with LR 54.3(d)) have numerous defects. Each defect warrants either the elimination of the entry in total, or a substantial reduction. For example, time that is excessive, redundant and/or unnecessary is also block billed. For the convenience of the Court, each of the defects and the requested response is set forth separately and not cumulatively such that the Court may more readily determine its response. 14

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The amount of time billed by counsel is excessive and redundant. The Complaint is 14 pages long and asserts two counts. The underlying facts are neither complex nor extensive. There are only two defendants. The inefficiency in the drafting process is aptly illustrated by the fact that counsel billed more time to revise the Complaint than to research and draft it. The total time billed to prepare the Complaint should have been no more than 15 hours. Accordingly, the City Defendants respectfully request that this Court deduct the following amounts from counsels’ time: (a) Mr. Holcomb (4 hours); (b) Mr. Beck (20.5 hours). Counsel spent 55.5 hours to research, draft and revise the Motion for Preliminary Injunction: Holcomb (12.5 hours)

Brazier (4 hours)

Beck (39 hours)

15

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The amount of time billed to research, draft and revise the 15-page Motion for Preliminary Injunction is excessive and redundant, particularly in light of the time expended by counsel to research and draft the Complaint. This conclusion is also evident from the uncomplicated and limited facts of this case, and the fact that three attorneys reviewed and revised the motion. Counsel should have spent no more than 25 hours to research, draft and revise the motion. Accordingly, the City Defendants respectfully request that this Court deduct the following amounts from counsels’ time: (a) Mr. Holcomb (7.5 hours); (b) Mr. Brazier (4 hours); and (c) Mr. Beck (19 hours). //

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Counsel spent 24.75 hours to draft the motion for summary judgment and concise statement of facts: Brazier (14.75 hours)

Beck (12 hours)

These billings are excessive and redundant. The 14-page motion copies large portions of the motion for preliminary injunction. As previously stated, the facts of the case are not complicated, and as illustrated by the concise statement of facts, many facts were not in dispute. Further, there is no justification for two attorneys to draft the motion and it undoubtedly led to redundancy in the work product. Moreover, at the time Plaintiffs filed their motion, the case was effectively resolved through the agreement previously negotiated. The fact that Plaintiffs, later, repeatedly undermined final resolution of the case through last-minute demands does not render work on the motion for summary judgment necessary. Rather, it was self-imposed and avoidable. Accordingly, the Court should deduct all time billed for the motion. However, if the Court is inclined to award any fees, the motion for summary judgment and concise statement should have taken no

17

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more 15 hours to complete. Accordingly, the City Defendants request that this Court deduct the following time from counsel: (a) Mr. Brazier (10); and (b) Mr. Beck (7). Counsel billed 20 hours related to the instant Motion. Holcomb

Brazier

This amount of time is patently excessive and unnecessary. This is particularly true given (a) the Motion violates LR 7.5; and (b) Plaintiffs devote the majority of their Motion to arguments this District has repeatedly rejected regarding hourly rates and reasonable fees. Given the foregoing, and the fact that the descriptions show redundancy in the work billed by counsel, the City Defendants respectfully request that this Court deduct 14 hours from Mr. Holcomb and 4 hours from Mr. Brazier.
B

PLAINTIFFS CANNOT RECOVER FEES THAT ARE NOT ADEQUATELY DESCRIBED

“The party seeking an award of fees must describe adequately the services rendered, so that the reasonableness of the requested fees can be evaluated. . . . If time descriptions are incomplete, or if such descriptions fail to describe adequately the services rendered, the court may reduce the award accordingly.” LR 54.3(d)(2).
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By way of example, (a) “time entries for telephone conferences must include an identification of all participates and the reason for the call . . . [;]” (b) “entries for legal research must include an identification of the specific issue researched . . . .” The following entries should be deleted in their entirety or subject to at least a 50% across-the-board reduction for failure to meet the requirements of LR 54.3(d)(2). Holcomb (13 hours)

Beck (43 hours)

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C.

PLAINTIFFS CANNOT RECOVER ATTORNEYS’ FEES FOR SECRETARIAL/PARALEGAL WORK

Plaintiffs cannot recover fees incurred when attorneys perform clerical or ministerial acts such as “. . . scheduling dates and deadlines; calendaring dates and deadlines; notifying a client of dates and deadlines; preparing documents for filing with the Court; filing documents with the Court; informing a client that a document has been filed; personally delivering documents . . . .” Harris, 2013 WL 1932715, at *3; Sound v. Koller, CV 09-00409 JMS/KSC, 2010 WL 1992194, at *7 (D. Haw. May 19, 2010) (court disallowed recovery for clerical and secretarial work such as “finalizing [ ]exhibits, and declarations[]”) citing Aslam v. Malen & Assocs., 669 F.Supp.2d 275, 277–78 (E.D.N.Y.2009) (finding that hours spent preparing exhibits could have been carried out by paralegal and reducing hourly rate to that of a paralegal). Accordingly, the following time should be deducted: 10 //
10

As discussed in other sections, due to counsels’ block billing practice, it is impossible to determine exactly how much time they spent on clerical/paralegal tasks related to the Motion, MIS and supporting documentation. However, the City Defendants should not bear the burden of counsels’ failure to provide the requisite detail. For this reason, as well as others set forth herein, the City Defendants maintain that the entirety of the time should be stricken. 20

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Holcomb (20 hours)

Beck Brazier

D.

PLAINTIFFS CANNOT RECOVER FOR DUPLICATIVE WORK

Two attorneys may bill for the same event only in certain limited circumstances not applicable to this case. “The Court, however, does not allow more than one attorney to bill for attending: 1) a meeting between co-counsel; 2) a client meeting; or 3) a meeting with opposing counsel. In such a situation, the Court typically deducts the time spent by the lowest-billing attorney or attorneys.” See Frankl v. HGH Corp., 2012 WL 1755423, at *7. Two and sometimes all counsel billed for the activities reflected in the following time entries. Based on the foregoing authority, while allowing Mr. Holcomb to bill for the following events, 2 hours should be deducted from Mr. Beck’s time and 4.5 hours should be deducted from Mr. Brazier’s time:
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Beck

Brazier

E.

TIME THAT IS BLOCK BILLED SHOULD BE REDUCED

When attorneys block bill (i.e., do not itemize the time expended on specific tasks, but rather enter total daily time spent working on a case), district courts are authorized to reduce the block-billed hours. Au v. The Funding Group, Inc., 933 F.Supp.2d 1264, 1276 (D. Haw. 2013) (court imposed a 15% across-the-board reduction for all block billed entries), citing Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998).11

11

See also I.T. ex rel. Renee T. v. Dep’t of Educ., Hawaii, CV 11-00676 LEK, 2012 WL 6969333, at *7 (D. Haw. Nov. 30, 2012) report and recommendation adopted, CV 11-00676 22

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Counsel routinely blocked billed. In light of their extensive use of block billing and the difficulty it creates when trying to determine reasonableness, to the extent that the Court has not otherwise reduced or eliminated the following entries all together on grounds set forth above, the time reflected in the entries listed below should be reduced 20%. Holcomb (25.5 hours)

Brazier (32.25 hours)

LEK, 2013 WL 419016 (D. Haw. Jan. 31, 2013)(court imposed an across-the-board reduction of 20% for block-billed entries); Signature Homes of Hawaii, LLC v. Cascade Sur. & Bonding, Inc., CV 06 00663 JMS-BMK, 2007 WL 2258725, at *3 (D. Haw. Aug. 3, 2007) (court reduced by 20% all block billed hours).

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Beck (33.5 hours)

F.

TIME BILLED IN QUARTER-HOUR INCREMENTS ARE SUBJECT TO REDUCTION

This District has consistently recognized that billing in quarter-hour increments can result in a request for excessive hours. World Triathlon Corp. v. Dunbar, 539 F. Supp. 2d 1270, 1286 (D. Haw. 2008) aff’d in part, appeal dismissed in part sub nom World Triathlon Corp. v. Hapai, 320 F. App’x 778 (9th Cir. 2009). Accordingly, in World Triathlon Corp. – where the court noted: “[t]he billing statements are replete with quarter-hour and half-hour entries for phone calls, communications with the Court, conferences, and communications with cocounsel, which likely took a fraction of the time billed[]” – the court reduced counsels’ hours across the board by 10%. World Triathlon at 1286; see also Harris, 2013 WL 1932715, at *4 (court reduced compensable hours by 10%).

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Here, with the exception of a single entry for Mr. Holcomb, quarter-hour increments were the briefest time unit recorded by Mr. Holcomb and Mr. Brazier for any event billed during the course of this litigation – and combined, they billed in quarter-hour increments just seven times (and three of those entries were for .75 of an hour). The bulk of their time was billed in half-hour increments. Mr. Beck never billed in less than half-hour increments. Counsels’ billing practices and their apparent penchant for simply rounding to the nearest half hour or whole hour undoubtedly resulted in excessive billing. The following (which is not intended to be exhaustive) illustrates this conclusion: Holcomb

In light of counsels’ extensive practice of billing in half-hour increments, let alone quarter-hour increments, the Court should apply a 20% across-the-board reduction for any compensable hours recognized. //

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3. Plaintiffs Are Not Entitled to Any Favorable Adjustment to the Lodestar Calculation Plaintiffs’ fee request is based on the hours billed multiplied by the hourly rates requested; and Plaintiffs have not requested any upward adjustment to the lodestar amount. Nevertheless, they briefly discuss Kerr v. Screen Extras Guild, Inc., 526 F.2d 67. See MIS at 34-35. To the extent that Plaintiffs’ rely on Kerr to favorably impact their fee request, their reliance and misplaced. Plaintiffs did not provide this Court with any information that warrants that the fee request is reasonable let alone qualified for a favorable adjustment under Kerr. IV. CONCLUSION Based on the foregoing, the City Defendants respectfully request that this Court (a) award an hourly rate of no more than $180, $175 and $125 for Mr. Holcomb, Mr. Brazier and Mr. Beck, respectively; (b) reduce counsels’ hours for researching, drafting and revising submissions because the time claimed is excessive, redundant and sometimes self-imposed and unavoidable; (c) deduct fees for services that were not adequately described; (d) deduct fees for secretarial/ paralegal work; (e) deduct fees for duplicative work; (f) reduce fees by an acrossthe-board cut of 20% all time that was block billed; and (g) further reduce fees by an across-the-board cut for 20% for counsels’ half-hour increment billing practice. // //
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DATED: Honolulu, Hawai‘i, February 18, 2014.

DONNA Y.L. LEONG Corporation Counsel By: /s/ Curtis E. Sherwood CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendants ANDREW LUM and the CITY AND COUNTY OF HONOLULU

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