United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
January 16, 2019 this Court entered a final judgment in favor
of Plaintiff New Mexico Top Organics-Ultra Health. (Doc. 73).
The Judgment incorporated the Court's Findings of Fact,
Conclusions of Law, and Order (Doc. 72), in which the Court
stated that it would award reasonable attorney fees and costs
to Plaintiff as the prevailing party under 42 U.S.C. §
1988. The Court additionally requested that Plaintiff file an
itemization of attorney fees and costs by January 30, 2019.
On January 30, 2019, Plaintiff filed Plaintiff's Motion
for Attorney Fees and Costs (Motion) (Doc. 74), requesting
$92, 624.00 in fees and $868.44 in costs, plus New Mexico
gross receipts taxes at 8.4375% on the fees. On March 13,
2019, Defendants Larry Kennedy, Dan Mourning, and Raina
Bingham (Defendants) filed their response to Plaintiff's
Motion. (Response) (Doc. 80). Defendants do not challenge
that Plaintiff is the prevailing party for purposes of 42
U.S.C. § 1988, but contend that Plaintiff's
requested attorney's fees are unreasonable “given
Plaintiff's limited success in bringing its
lawsuit.” (Doc. 80 at 2). Defendants also challenge as
excessive, redundant, or unnecessary, some of the hours
Plaintiff claims its counsel expended on this case. Plaintiff
has filed a reply to Defendants' arguments. (Reply) (Doc.
83). The Court, having considered the parties' briefs,
exhibits, and relevant law will grant Plaintiff's Motion
in part and deny it in part.
1988 provides that, in certain civil rights actions,
including those brought under 42 U.S.C. § 1983,
“the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable
attorney's fee as part of the costs[.]” 42 U.S.C.
§ 1988(b). In addition to attorney fees, a prevailing
party in a civil rights action is normally entitled to costs
under 28 U.S.C. § 1920. Case v. Unified Sch. Dist.
No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1249 (10th
Cir. 1998). “A plaintiff who succeed[ed] on any
significant issue in litigation which achieves some of the
benefit the parties sought in bringing the suit is a
prevailing party.” Id. (internal quotation
marks and citation omitted) (alteration in original).
“[A] prevailing plaintiff should ordinarily recover an
attorney's fee unless special circumstances would render
such an award unjust.” Hensley v. Eckerhart,
461 U.S. 424, 429 (1983) (internal quotation marks and
citation omitted). Defendants do not dispute that Plaintiff
was a prevailing party under the statute, nor do Defendants
contend that an award of attorney's fees would be unjust.
Rather, Defendants challenge the reasonableness of the
determine the reasonableness of a fee request, a court must
begin by calculating the so-called ‘lodestar
amount' of a fee, and a claimant is entitled to the
presumption that this lodestar amount reflects a
‘reasonable' fee.” Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). “The
lodestar calculation is the product of the number of attorney
hours ‘reasonably expended' and a ‘reasonable
hourly rate.'” Id. Counsel for the party
claiming the fees has the burden of establishing entitlement
to an award and documenting the appropriate hours expended
and hourly rates. Case, 157 F.3d at 1249-50. The
Court must examine the records to determine whether specific
tasks are properly chargeable and then if the hours expended
on each are reasonable. Id. at 1250. “The
prevailing party must make a good-faith effort to exclude
from a fee request, hours that are excessive, redundant, or
otherwise unnecessary.” Jane L. v. Bangerter,
61 F.3d 1505, 1510 (10th Cir. 1995) (internal quotation marks
and citation omitted). Moreover, the hourly rates requested
by counsel must reflect the prevailing market rates in the
community. Id. Finally, certain factors may cause
the court to adjust a fee upward or downward,
“including the important factor of the ‘results
obtained.'” Hensley, 461 U.S. at 434.
addition to the parties' briefing and relevant law, the
Court has reviewed billing statements for Plaintiff's
attorneys Mr. Brian Egolf and Ms. Kristina Caffrey,
see Pl. Ex. 1, affidavits from Mr. Egolf and Ms.
Caffrey pertaining to their respective education and
experience, see Pl. Exs. 3 & 4, and affidavits
from New Mexico attorneys Joleen Youngers and John Bienvenu
discussing the reasonableness of Plaintiff's requested
hourly rates, see P. Exs. 5 & 6.
Court will grant Plaintiff's request for attorney fees
but will reduce the $92, 624.00 fee request to reflect some
duplicative work charged, block billing entries, and
excessive time spent on certain matters. Moreover, though
Plaintiff is the undisputed prevailing party for purposes of
42 U.S.C. § 1988, the Court will also adjust the fee
award downward slightly to reflect that Plaintiff obtained
less than the full relief requested. Summary judgment was
granted in Defendants' favor on Plaintiff's request
for monetary damages as precluded by the Eleventh Amendment,
and the Court significantly narrowed the scope of the
injunctive relief Plaintiff had requested. See Barber v.
T.D. Williamson, Inc., 254 F.3d 1223, 1230-31 (10th Cir.
2001) (analyzing the difference between the relief a
plaintiff sought and the relief a plaintiff recovered in
determining the reasonableness of attorney's fees).
Nevertheless, the Court agrees with Plaintiff that this First
Amendment case serves a public purpose by affirming an
important right and encouraging attorneys to represent civil
rights litigants, and the award reflects this. See Barber
v. T.D. Williamson, Inc., 254 F.3d at 1231 (viewing the
public purpose served by a civil rights plaintiff in broad
terms and recognizing that courts have concluded “that
a public goal is accomplished if the plaintiffs victory
encourages attorneys to represent civil rights litigants,
affirms an important right, and/or provokes a change in the
defendant's conduct”). The hourly rates requested
by Plaintiffs counsel are $350 for Mr. Egolf, $275 for Ms.
Caffrey, and $120 for paralegal work. Defendants did not
challenge the reasonableness of Plaintiff s requested hourly
rates for counsel or for paralegal work, and the Court will
not alter the hourly rates. The Court will award Plaintiffs
counsel $81, 000.00 in attorney fees, plus applicable gross
items not reimbursable as attorney's fees under 42 U.S.C.
§ 1988, the general costs statute, 28 U.S.C. § 1920
is controlling. Section 1920 allows certain costs including
fees of the clerk, fees for recorded transcripts necessarily
obtained for use in the case, fees for witnesses,
compensation for court appointed experts and interpreters,
docket fees, and fees to cover the costs of making copies of
any materials where the copies are necessarily obtained for
use in the case. 28 U.S.C. § 1920. Plaintiff provided a
list of costs incurred by Plaintiff in this case.
See Pl. Ex. 2. Defendants do not challenge the
costs, and the costs listed fall within the gambit of 28
U.S.C. § 1920 and appear to the Court to be reasonable.
Accordingly, the Court will grant Plaintiffs full request for
costs in the amount of $868.44.
THEREFORE ORDERED THAT Plaintiffs Motion for Attorney Fees
and Costs (Doc. 74) is granted in part and denied in part.
The Court grants Plaintiffs full request for costs but
reduces the amount of attorney fees requested. Accordingly,
the Court awards Plaintiff $81, 000.00 in ...