ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT OF THE SPECIAL MASTER ON PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS, DEFENDANT DAVID KEALA’S BILL OF COSTS AND PLAINTIFFS’ MOTION TO STRIKE DEFENDANT DAVID KEALA’S NOTICE OF BILL OF COSTS
BACKGROUND AND PROCEDURAL HISTORY 1
On January 14, 2000, Plaintiffs John (“John”) and Jane Doe (“Jane”) filed a complaint against the State of Hawaii Department of .Education (“State D.O.E.”), A-Plus Program, Herman Aizawa (“Aiza-wa”), Ralph Murakami (“Murakami”), Maude Yamakawa (‘Yamakawa”), Sonia Zane (“Zane”), and David Keala (“Keala”) (collectively “Defendants”),
2
based on two
On November 29, 2001, this Court issued an Order Granting in Part and Denying in Part Defendant Keala’s Motion for Judgment on the Pleadings and for Summary Judgment (“November 29, 2001 Order”), finding in part that Defendant Keala was not entitled to the defense of qualified immunity and could be held civilly liable for damages brought pursuant to Section 1983. 4 The November 29, 2001 Order also dismissed Plaintiffs’ Section 1983 claims against Defendant Keala in his official capacity. See November 29, 2001 Order at 11-12, n. 7. Subsequently, Keala appealed the qualified immunity issue to the Ninth Circuit and on January 15, 2002, the Court granted Keala’s Motion to Stay Pending Appeal.
Plaintiffs filed a First Amended Complaint on February 6, 2002 setting forth an additional claim for violation of the Rehabilitation Act (“Section 504”). Plaintiffs alleged that the State did not follow regulations implementing Section 504 before imposing discipline on John. See First Am. Compl. ¶ 41-49. Plaintiffs also asserted claims for (2) Violation of Section 1983, (3) Negligence and Gross Negligence, (4) False Imprisonment, (5) Assault and Battery, (6) Negligent Infliction of Emotional Distress, (7) Violation of HRS § 302A-1001, (8) Loss of Consortium, and (9) Punitive Damages.
On June 12, 2002, the deadline to file dispositive motions, Zane filed a Motion for Judgment on the Pleadings (“Zane’s MJP”), the State Defendants a filed a Motion for Judgment on the Pleadings and for Summary Judgment (“State’s MJP/ MSJ”), and Plaintiffs filed a Motion for Partial Summary Judgment (“Plaintiffs MPSJ”). On June 24, 2002, Plaintiffs filed an Amended and Supplemental Memorandum of Law in Support of Motion for Partial Summary Judgment Filed June 12, 2002 (“Supplemental Memo”). On July 1, 2002, the State Defendants filed a Motion to Strike the Supplemental Memo. Following a number of disputes with respect to
On June' 20, 2003, the Ninth Circuit affirmed the Court’s November 29, 2001 decision.
See Doe v. State,
On December 24, 2003, Defendants served upon Plaintiffs a Rule 68 Offer of Judgment pursuant to Fed.R.Civ.P. 68. See Exhibit B to Defendant Keala’s Memorandum in Opposition to Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs (“Offer of Judgment”). The Offer of Judgment stated, in pertinent part:
Defendants State of Hawai’i Department of Education, A-Plus Program at Pukalani Elementary School, Defendants Maude Yamakawa, Herman Aiza-wa, Ralph Murakami, David Keala and Sonia Zane in the official capacities, and Defendants David Keala, Maude Yama-kawa, Herman Aizawa and Ralph Mura-kami in their individual capacities, by and through their attorneys of record, pursuant to Fed.R.Civ.P. 68, hereby offer to allow judgment to be taken against the Defendants in their official capacities in the amount of Ninety Thousand Two Hundred Fifty ($90,250.00), inclusive of all allowable attorneys fees and costs accrued to date, which sum is to be paid by the State of Hawai’i.
This Offer of Judgment is conditioned upon the Plaintiffs’ dismissal with prejudice of Defendants David Keala, Maude Yamakawa, Ralph Murakami and Herman Aizawa in their individual capacities with regard to all claims that are or could have been brought in this action, including any and all claims for attorneys’ fees and costs.
This Offer of Judgment is conditioned upon its' acceptance by Plaintiffs. This Offer shall be in complete satisfaction of all liability, damages, injuries, and claims against the State Defendants in the above-entitled action had or asserted by Plaintiffs.
The Court heard oral argument on the motions on February 2, 2004. At the hearing, the parties averred that they reached a settlement agreement dismissing Zane from the lawsuit; 5 Zane’s MJP was withdrawn from consideration.
On February 23, 2004, the Court issued an Order Dismissing Plaintiffs’ Counter-Motion for Summary Judgment; Granting in Part and Denying in Part State Defendants’ Motion to Strike; Granting in Part and Denying in Part State Defendants’ Motion for Judgment on the Pleadings and Summary Judgment; and Denying Plaintiffs’ Motion for Summary Judgment (“February 23, 2004 Order”). Summarizing, the Court (1) dismissed Plaintiffs Counter-MSJ on grounds that it was not timely filed, (2) denied the State’s Motion to Strike as to the expert witness disclosure, (3) found that Plaintiffs had not properly plead their purported IDEA claims, (4) dismissed Aizawa in his individual and official capacities based on Plaintiffs’ conceded abandonment of claims, (5) dismissed Plaintiffs’ 302A-1001 Claim on grounds that Plaintiffs did not assert any facts or allegations in support of their complaint and on Plaintiffs’ conceded abandonment of this claim, (6) dismissed the Section 504 claims against Defendants Murakami and Yamakawa in their individual capacity because Section 504 cannot support a lawsuit against a public official in his or her individual capacity, (7) dismissed the Section 504 claims against the State Defendants on grounds that the Plaintiffs could not show exclusion from benefits or services, or discrimination, and could not show that any Defendant intentionally discriminated or acted with deliberate indifference toward John, (8) dismissed the Section 1983 claim against the State Defendants based on Eleventh Amendment immunity, 6 (9) dismissed Plaintiffs’ state law claims against the State D.O.E., A-Plus, and Murakami and Yamakawa in their official capacity, based on Eleventh Amendment immunity, (10) dismissed Plaintiffs’ state law claims against Keala and Zane in their official capacities, (11) dismissed Plaintiffs’ state law claims against Murakami and Yamaka-wa in their individual capacity on grounds that Murakami and Yamakawa were entitled to qualified immunity, (12) dismissed the punitive damages claims against all defendants, 7 (13) denied Plaintiffs’ MPSJ. Thus, after February 23, 2004, only Plaintiffs’ Section 1983 and state law claims against Keala in his individual capacity remained. See February 23, 2004 Order at 61. 8
On June 8, 2004, the case proceeded to jury trial. On June 29, 2004, the jury returned a verdict in favor of John on his claims for violation of his constitutional rights (Section 1983) and punitive damages only. The jury found against Jane on her
On July 15, 2004, Plaintiffs filed a Motion for Award of Attorneys’ Fees and Costs (“Attorneys’ Fees Motion”). Defendant Keala filed an opposition on August 5, 2004 to which Plaintiffs replied on August 16, 2004.
On July 29, 2004, Defendant Keala filed a Bill of Costs. On August 2, 2004, Plaintiffs filed a Motion to Strike Defendant Keala’s Bill of Costs. This Court referred the motions to Magistrate Judge Kevin S.C. Chang (“Special Master”) to adjudicate as a special master. See Orders (July 16, 2004 and August 2, 2004).
On October 18, 2004, Judge Chang issued a Report of the Special Master on Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs, Defendant David Keala’s Bill of Costs and Plaintiffs’ Motion to Strike Defendant David Keala’s Notice of Bill of Costs (“Report”). The Report makes the following findings and recommendations: (1) that Plaintiffs’ Motion for Attorneys’ Fees and Costs be granted in the amounts of $112,818.20 in attorneys’ fees and $41,010.24 in costs; (2) that Defendant Keala’s Bill of Costs be denied; and (3) that Plaintiffs’ Motion to Strike Defendant Keala’s Notice of Bill of Costs be denied.
On October 29, 2004, Keala filed Objections to Report of the Special Master. On November 9, 2004, Plaintiffs filed Objee-tions to Report of the Special Master. Neither Keala nor Plaintiffs have requested a hearing with respect to their objections. After careful review, the Court finds this matter suitable for disposition without a hearing. See LR 7.2(d).
STANDARD
In acting on a special master’s order, report, or recommendation, the district court must afford an opportunity to be heard and may receive evidence. See Fed. R.Civ.P. 53(g)(1). The district court may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions. Id.
The district court must decide de novo all objections to findings of fact and/or conclusions of law made or recommended by the special master.
See
Fed.R.Civ.P. 53(g)(3) and (4) (amended in 2003 to change the standard .of review for findings of fact made or recommended by a master);
see also Summers v. Howard University,
DISCUSSION
I. RULE 68 OFFER OF JUDGMENT
On December 24, 2003, Defendants tendered an offer of judgment to Plaintiffs pursuant to Federal Rules of Civil Proce
Rule 68 provides in relevant part:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.
Fed.R.Civ.P. 68. The purpose of Rule 68 is “to encourage settlement of legal disputes by forcing a plaintiff to weigh the risk of incurring post-offer costs and fees he may not be able of recover even if successful on his claim.”
Herrington v. County of Sonoma,
In Herrington, the Ninth Circuit listed the following requirements of a valid Rule 68 offer:
“An offer of judgment should be served on the adverse party .... The offer must specify a definite sum for which judgment may be entered, which plaintiff can either accept or reject. It must be unconditional 10 and must include ‘costs then accrued.’ ” The consequences of rejecting an offer are clear: “If the judgment finally obtained is not more favorable than the offer, theofferee must pay the costs incurred after the making of the offer.”
Id.
(internal citations omitted) (emphasis added). Unapportioned joint offers made by multiple defendants to a single plaintiff or by a single defendant to multiple plaintiffs, though not invalid per se, have proved problematic with respect to determining whether the “judgment finally obtained is more favorable than the offer.”
See, e.g., Johnston,
Johnston
is illustrative of the problems associated with unapportioned joint offers. There, Defendants Penrod and Hughes made an unapportioned Rule 68 offer of judgment to Plaintiff Johnston for $7,500.
See
Penrod argues that the judgment obtained against it is comparable to the joint offer because a properly instructed jury assessed Johnston’s total damages without regard to whether all of the original defendants were still in the case. Although this is true, the settlement may have nevertheless had an effect on the damage award. The character and dynamics of a trial often are drastically changed when one or more parties are dismissed. In this case, for example, if the jury had found Hughes and Penrod at fault, it is likely that it would have reduced the extent of Johnston’s contributory negligence. In sum, the figure represented by the joint offer of Hughes and Penrod on the one hand and the dollar judgment obtained only against Penrod on the other are not comparable figures for the purpose of shifting costs under Rule 68.
Neither should the district court undertake an apportionment of the joint offer in an attempt to obtain more comparable figures. Rule 68 is a mandatory rule designed to operate automatically by a comparison of two clearly defined figures.
A party in Penrod’s position is not without a remedy. The rule expressly provides for successive offers and nothing prevented Penrod from making a new offer of judgment in compliance with Rule 68 after Hughes settled with Johnston. If Penrod had made such an offer in excess of the judgment ultimately obtained against it, Rule 68 would clearly apply.
The Court finds that the $3,625 judgment (exclusive of costs) obtained by John against Keala in his individual capacity is not comparable with the $90,250 judgment (inclusive of costs) to be taken against Defendants in their official capacities that was offered to both John and Jane. First, the Court cannot, nor should it attempt to, determine what portion of the $90,250 offered by Defendants was offered by Keala alone.
See Johnston,
Second, the Court cannot apportion the amount offered between Plaintiffs John and Jane. Again, for this reason as well, there is no “clearly defined” offer amount to compare against John’s recovery of $3,650 and attorneys fees and costs to be awarded. Due to the mandatory nature of Rule 68, courts require that the offer give the plaintiff “a clear baseline from which plaintiffs may evaluate the merits of their case relative to the value of the offer.”
Gavoni
Last, the individual-official capacity distinction also renders the judgment obtained and the judgment offered less comparable. A judgment against Keala in his official capacity is different than a judgment against Keala in his individual capacity because in the latter situation, Keala, not the State, would be responsible for satisfaction of the judgment. A judgment for a larger amount against a defendant in his or her individual capacity may be more or less favorable than a judgment for a smaller amount against the same defendant in his or her official capacity depending on the defendant’s ability to pay.
II. PLAINTIFFS’ ATTORNEYS’ FEES REQUEST
The Special Master concluded that Plaintiffs were entitled to a total of $112,818.20 in attorneys’ fees (including general excise tax). In arriving at this figure, the Special Master determined that deviation from the lodestar method of calculating the fee award, i.e. a reasonable hourly rate multiplied by the number of hours reasonably expended, was not warranted. See Report at 13. The Court set the hourly rates for attorneys Feldman, Floyd and Levin (“Plaintiffs’ counsel”) at $140, $275, and $275, respectively. Next, the Special Master reduced the number of hours reported by Plaintiffs’ counsel for the period December 1999 to February 23, 2004 (following the dismissal of the State Defendants), with the exception of hours billed for work defending against Keala’s appeal to the Ninth Circuit of the qualified immunity issue, 13 by 86% to reflect that Plaintiffs did not prevail against all Defendants (State Defendants and Zane). Time billed after February 24, 2004 was not discounted save specific reductions to certain entries for excessiveness and failure to provide adequate documentation or descriptions. See Report at 30.
Plaintiffs contend that the Special Master. inappropriately reduced Plaintiffs’ attorneys’ fees incurred between December 1999 and February 23, 2004 by 86% but “in the spirit of compromise, Plaintiffs stipulate to a reduction of fees by thirty percent (30%).” Pits’ Objections to Report at 12. 14 Plaintiffs argue that they should be compensated for work done on their unsuccessful claims because all of the claims were inextricably intertwined. See Pits.’ Objections to Report at 10. Notably, Plaintiffs do not object to the hourly rate set by the Special Master or to the exclusion of particular hours deemed excessive or insufficiently documented.
Keala, on the other hand, argues that application of the lodestar method was improper because Plaintiffs success was de minimus and for his private personal benefit. Keala’s Objections to Report at 2-5. Keala also contends that the Special Master misapplied the relevant lodestar factors and should have reduced the fees awarded based on the lack of difficulty of the legal and factual questions presented at trial, the level of skill and value of the legal services rendered, the awards in similar cases, and the amount involved and the results obtained. See id. at 6-14. Keala also points out that the Special Master did not consider a number of objections made to specific time entries reported by Plaintiffs’, counsel. See id. at 16-18.
Prevailing parties on a Section 1983 claim are entitled to “reasonable attorneys’ fees” pursuant to 42 U.S.C. § 1988.
See
42 U.S.C. § 1988. “In determining the amount of the award, a court generally should begin by calculating the so-called ‘lodestar’ amount, arrived at by multiplying the number of hours reasonably spent in achieving the results obtained by a reasonably hourly rate.”
Friend v. Kolodzieczak,
Keala argues that the Court should depart from the lodestar method of calculating attorneys’ fees under the exception established by the United Supreme Court in
Farrar v. Hobby,
The Special Master applied the lodestar method reasoning that although Plaintiffs’ recovery was far removed from their attorneys’ expectations and estimates, it was not “nominal, trivial or insubstantial.” Report at 13. The Special Master noted that the facts and circumstances of Farrar were significantly different from this case. See id.
The Court agrees with the Special Master. Although the judgment obtained by John against Keala was less than his attorneys likely anticipated,
15
abandonment of the lodestar method is not warranted here. The legal issues on which John prevailed, i.e. Section 1983 and punitive damages, were not insignificant. The Court also cannot conclude that this lawsuit does not in some, though perhaps indirect, way serve the public goal of protecting the constitutional rights of other similarly situated students.
Cf. Morales,
Factors that should be considered in fashioning the reasonable number of hours expended and the reasonable hourly rate of the lodestar include “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained, and (5) the contingent nature of the fee agreement” (“subsumed factors”).
Morales,
With respect to the subsumed factors discussed above, Keala argues that the Court should make reductions based on the lack of difficulty and the level of skill and value of the legal services rendered. Keala also supports a reduction for the “de minimus” success achieved by Plaintiffs and based on specific objections to time entries by Plaintiffs’ counsel. Plaintiffs, on the other hand, object to the 86% pro rata reduction based on the number of defendants which plaintiffs were not successful against in the hours reported by Plaintiffs’ counsel for the period December 1999 to February 22, 2004.
The Court finds that a reduction, in the amounts discussed infra Section II. B.2., is appropriate on the basis of insufficient documentation and/or excessive billing and the “results obtained.” The reduction will be reflected in the Court’s computation of the hours reasonably expended. The Court, given its familiarity with the legal issues of the case and Plaintiffs’ counsels’ performance, is not persuaded that the hourly rate or number of hour expended figure should be reduced for lack of difficulty of the issues or the level of skill and value of the legal services rendered.
1. Reasonable Hourly Rate
The Special Master set the reasonable hourly rates for Plaintiffs’ counsel as follows:
Shelby Floyd $275.00
Stanley Levin $275.00
Edie Feldman $140.00
Bruce Ellis $ 85.00 (paralegal)
Neither Keala nor Plaintiffs objected specifically to the hourly rates established by the Special Master. The Court finds that these rates are reasonable in consideration of the prevailing market rates in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.
See Sorenson v. Mink,
2. Hours Reasonably Expended
a. Insufficient documentation/excessive billing
The Special Master deducted time due to insufficient documentation and excessive billing. Plaintiffs did not object to this deduction. Keala contends that the Special Master did not address all of his objections to Plaintiffs’ counsel’s billings.
See
Keala’s Objections at 15-17. Based on review of the invoices submitted by Plaintiffs’ counsel in connection with Plaintiffs’ Motion for Attorneys’ Fees and Costs,
16
i. Insufficient documentation
Reduction of the hours reported is warranted where counsel has provided inadequate documentation.
Cunningham,
The Court finds that a reduction in the hours reported by attorneys Floyd, Levin and Feldman in the following amounts is appropriate due to lack of sufficient documentation:
Attorney Number of Hours
Floyd 1.6
Levin 17.7
Feldman 24.5
The time reductions for each attorney are specifically identified in Appendix A to this Order. Most reductions were made because the descriptions provided did not indicate “the general subject matter” of the communications or services provided and hence, did not provide sufficient justification that such time was reasonably expended.
ii. Excessive billing
The hours reported by counsel may be reduced “if the hours expended are deemed excessive or otherwise unnecessary.”
Chalmers,
The Court finds that a reduction in the hours reported by attorneys Floyd, Levin and Feldman and paralegal Ellis in the following amounts is appropriate on grounds that such hours are excessive or unnecessary:
Attorney Number of Hours
Floyd 0.2
Levin 0.5
Feldman 13.2
Ellis (paralegal) 2.0
The Court agrees with the Special Master that 4.6 hours for a telephone call with the Court’s law clerk, and for reviewing the 9th Circuit model jury instructions, federal civil instructions, Hawaii civil instructions and preparing revised jury instructions is excessive.
See
Report at 27. The Court also agrees with the Special Master that it is unreasonable to charge for a paralegal’s time spent traveling to and attending a status conference when
b. Results obtained
Hensley
requires the Court to consider the “results obtained” in calculating the lodestar figure.
See Morales,
i. Step 1
In determining the appropriate reduction for limited success, the Court must consider whether the plaintiff failed to prevail on claims that were unrelated to the claims on which the plaintiff prevailed.
See Webb,
John asserted the following claims against Defendants in either the Complaint or First Amended Complaint: (1) Violation of Section 1983 and 1981, (2) Violation of Section 504, (3) Negligence and Gross Negligence, (4) False Imprisonment, (5) Assault and Battery, (6) Negligent Infliction of Emotional Distress, (7) Violation of HRS § 302A-1001 and (8) Punitive Damages. Jane asserted claims for (1) Negligent Infliction of Emotional Distress and (2) Loss of Consortium. John prevailed on just his Section 1983 and Punitive Damages claims against Keala, in his individual capacity, while Jane did not prevail on any of her claims against any of the Defendants.
Although the legal theories underlying the claims asserted by Plaintiffs against Defendants are distinct, the claims are based on a common core of facts: (1) Zane’s alleged “smacking” of John and (2) Keala’s taping of John’s head to a tree. Also, although the Zane and Keala incidents were distinct,
see
Order, filed 1/15/02, at 3 n. 3, the legal theories (i.e. Section 1983) against Zane and Keala overlapped. To the extent that “truly unrelated claims” exist, the Court will make an appropriate reduction in step 2 discussed below.
See Webb,
ii. Step 2
Step 2 requires the district court to “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”
Webb,
The relief obtained by Plaintiffs is limited in various respects. 18 First, Jane was not successful on any of her claims against any of the Defendants. Second, Plaintiffs did not succeed on any of their claims against any of the State Defendants or against Defendants Aizawa, Murakami and Yamakawa in their individual capacities. Third, John obtained a modest recovery against Keala in his individual capacity on his Section 1983 and Punitive Damages claims only.
In light of the above considerations, the Court finds that a
55%
reduction of the total number of hours reported by Plaintiffs’ counsel, after deducting specific amounts for insufficient documentation or excessiveness, is appropriate to account for the “results obtained” by Plaintiffs. The Court provides the following “concise but clear” explanation in support of its 55% reduction in the number of hours reasonably expended.
See Gates v. Deukmejian,
First, the Court considers Jane’s lack of success. The Court recognizes that this case was predominately about John’s claims against Defendants for violation of his rights under federal and state law. Jane’s claims for negligent infliction of emotional distress and loss of consortium were peripheral, and in the Court’s estimation, constituted a small portion of the overall case. The billing invoices submitted confirm that Plaintiffs’ counsel expended most of their time on claims asserted by John. Thus, the Court finds that a 5%
Next, the Court considers that John did not succeed against the State Defendants (State D.O.E., A-Plus, and Defendants Ai-zawa, Murakami, Yamakawa, Zane, and Keala, in their official capacities) or Defendants Aizawa, Murakami, Yamakawa, and Zane,
19
in their individual capacities. The Complaint and First Amended Complaint predicated liability on three themes: (1) The State’s failure to train teacher and administrators and/or to implement procedures to ensure proper treatment of John, a disabled child, as demonstrated by the Keala and Zane incidents; (2) the Keala incident; and (3) the Zane incident. With the exception of the 504 Claim, which was asserted specifically against the State D.O.E., Yamakawa and Keala, and the Punitive Damages claim, which was asserted against the State D.O.E. and Keala, all of the other claims were asserted against “Defendants.” The allegations against Keala, however, served as the mainstay of the lawsuit. In consideration of the claims and remedies pursued in the litigation, the Court finds that a 20% reduction is appropriate to account for John’s lack of success against all Defendants save Keala, in his individual capacity.
See Corder,
Finally, the Court turns to the amount of the damage award. The monetary relief obtained by John against Keala was modest, $3,650, inclusive of punitive damages. Measured against the years of litigation, the considerable amount of resources expended on this case, and Plaintiffs’ (and their counsels’) expectations, John suffered a substantial defeat. Although the judgment against Keala may in some way constitute a “warning” to other school personnel to refrain from similar unconstitutional conduct, the Court does not regard the public policy aspect of the judgment as significantly enhancing the “results obtained” by John.
See Morales,
Where, as here, the monetary relief obtained is far less than that sought by the plaintiff, the Ninth Circuit has sanctioned as much as a 50% reduction of attorneys’ fees for lack of success.
See Harris v. Marhoefer,
To summarize, the Court finds that a 55% reduction of the hours reported by Plaintiffs’ counsel (including paralegal fees) is appropriate to account for the limited results obtained. Applying a 55% total reduction, the Court concludes that a total of 530.58 hours were reasonably expended.
C. Summary Of The Lodestar Calculation
_Floyd_Levin_Feldman_Ellis
Total Hrs Reported_63.60_250.75_906.2_18.20
Hour Reductions_
Inadequate Doc._L6_17.7_24.5_0
Excessive/Unnec._(12_(15_13.2_2.0
_subtotal (1)_6L8_232.55_868.50_16.2
Results Obtained_(55%)_(55%)_(55%)_(55%)
Total Reasonable Hours Expended_27.81_104,65_390.83_7.29
Reas. Hourly Rate_$ 275 •_$ 275_$ 140_$ 85
Total/Attorney_$7,647.75 $28,778.75 $54,716.20 $619.65
GET (4.166%)_$ 318.61 $ 1,198.92 $ 2,279.48 $ 25.81
Total + GET_ $7,966.36 $29,977.67 $56,995.68 $645.46
LODESTAR AMOUNT = $95,950.79 *
* Paralegal expense reported by Attorney Feldman in the amount of $365.62 included in the lodestar. See infm note 23.
D. Adjustment of the Lodestar Amount Based on Factors Not Subsumed In the Initial Calculation
“There is a strong' presumption that the lodestar figure represents a reasonable fee[;]” the lodestar amount is adjusted only in “rare instances.”
Morales,
The Court finds that the lodestar amount should not be adjusted on the basis of awards in similar cases. First, Keala offers the Court little basis for comparison. In three cases cited by Kea
la
—LeMaire
v. Maass, 12
F.3d 1444 (9th Cir.1993),
Corder v. Brown, 25
F.3d 833 (9th Cir.1994), and
Webb v. Sloan,
E. Attorneys Fees’ Expended In Motion For Fees
Plaintiffs request $5,919.20 in additional fees and costs for work done in connection with their Motion for Attorneys’ Fees and Costs. Generally, “time spent in establishing an amount of fees awardable under section 1988 is compensa-ble.”
Guerrero v. Cummings,
The Court finds that 40.1
20
of the 40.5 hours reported by Attorney Feldman was reasonably expended on additional work on Plaintiffs’ Attorneys’ Fee Motion. The Court reduces Plaintiffs’ “fees-on-fees” request by 55% for the reasons discussed
supra
with respect to the lodestar calculation.
See Thompson v. Gomez,
III. PLAINTIFFS’ REQUEST FOR COSTS
As noted by the Special Master, Plaintiffs did not file a Bill of Costs pursuant to FRCP 54(d)(1), which precludes an award of taxable costs pursuant to 28 U.S.C. § 1920. See Report at 32. Thus, Plaintiffs’ entitlement to costs, if at all, arises under Section 1988.
A prevailing party “may recover as part of the award of attorney’s fees those out-of-pocket expenses that ‘would normally be charged to a fee paying client.’ ”
Harris,
The Special Master found that Plaintiffs were entitled to $41,010.24 of the $52,609.32 costs requested after making reductions for (1) Knight Investigations ($8,033.08), (2) Video Teleconferencing ($1,082.00), (3) Litigation Support ($877.50), and (4) duplicate copying costs ($1,606.50). 22 Plaintiffs argue that they should have been awarded these expenses and provide additional information to justify such an award. Keala asserts that the Special Master should not have recommended a cost award that was more than thirteen times the amount of the jury award and reinstates objections asserted at appendices 10 and 11 (primarily regarding expert witness fees) to his Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs.
The Court finds that the additional information provided in connection with Plaintiffs’ Objections to the Report of the Special Master provides sufficient explanation that the following costs were reasonably incurred by Plaintiffs’ counsel as out-of-pocket expenses: (1) Knight Investigations ($8,033.08), (2) Video Teleconferencing ($1,082.00), (3) Litigation Support
23
(secretarial services), and (4) duplicate copying costs ($1,606.50). The Court also grants Rainell Javier’s (Jane) request for reimbursement of litigation expenses which she attests “was reasonably incurred in the prosecution of my son’s [John’s] case against David Keala.” 7/15/04 Javier Decl. ¶3. John, as a prevailing party, is entitled to his reasonable expenses incurred in litigating his Section 1983 claim.
See Laffey,
The Court denies Plaintiffs’ request for expert witness fees, though not for the reasons proffered by Keala.
24
Sec
Plaintiffs request a total of $52,609.32. The Court deducts $24,511.85 for expert witness fees and $812.50 for paralegal cost from this total for the reasons explained above. See Appendix C. Accordingly, the Court finds that Plaintiffs are entitled to a total of $27,284.97 in costs.
IV. KEALA’S BILL OF COSTS AND PLAINTIFF’S MOTION TO STRIKE KEALA’S BILL OF COSTS
Keala argues that he is entitled to costs based on the cost-shifting mechanism of Rule 68. The Special Master, having concluded that Keala’s reliance on the Offer of Judgment was misplaced, recommends that the Keala’s Bill of Costs be denied. For the reasons discussed supra, the Court agrees with the Special Master that under the circumstances of this case, the cost-shifting mechanism of Rule 68 does not apply. Accordingly, the Court denies Keala’s Bill of Costs. Consequently, the Court agrees with the Special Master that the denial of Keala’s Bill of Costs moots Plaintiffs’ Motion to Strike Keala’s Bill of Costs.
CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiffs’ Motion for Attorneys’ Fees and Costs filed July 15, 2004. The Court finds that Plaintiffs are entitled to a total of $98,582.34
25
in attorneys fees and $27,307.37 in costs. The Court DENIES Defendant David Keala’s Bill of Costs filed July 9, 2004.
26
The Court finds that the
IT IS SO ORDERED.
APPENDIX A
Hours Reduced Based on Insufficient Documentation/Lack of Detail
Shelby Floyd_
Date Hours Description
6/21/01 0.7 “telephone conference with Edie; telephone conference with Edie and fax to Duffy; research Wrightslaw for decisions”
7/27/01 0.1 “e-mail to E. Feldman”
9/10/01_0.1 “telephone conference with E. Feldman”_
9/27/01 0.2 “review incoming correspondence”
10/08/01 0.2 “telephone conference with E. Feldman”
10/19/01 0.1 “telephone call to G. Hynds, Esq.”
10/26/01 0.1 “telephone call to G. Hynds, Esq.”
1/24/02 0.1 “telephone conference with E. Feldman, Esq.”
TOTAL L6
Stanley Levin
Date Hours_Description_
4/02/02 0.3 “various tel. confs. with Edie Feldman”
7/16/03 0.3 “tel, conf, with Edie”
7/17/03 0.4 “Tel. confs. with Edie and with Charles Fell”
10/22/03 04 “ADDITIONAL TEL. CONFS. WITH EDIE AND TEL. CONFS. WITH JAN _KNIGHT”_
10/24/03 0.8 “additional research”
11/05/03 06 “REVIEW OF EMAILS W/EDIE; ANALYZE THE CIRCUIT IN CASE; _TEL, CONFS W/EDIE AND OTHERS”_
11/18/03 2.9 “Exchange of emails w/ Edie; prep of motion and research for memo; tel. conf. w/ Cregor”
12/16/03 1.40 “Meeting with Edie; emails to and from Edie”
2/01/04_2,70 “Gathering and reviewing materials; exchange of emails with Edie”_
3/16/04 * 2.4 “review of exhibits in prep for mtg ours and theirs”
6/14/04 2.0 “meet with Edie”
6/14/04 1.5 “mise, time spent on witness order and similar issues”
Total 17/7
Edie Feldman
Date Hours_Description_
7/12/04 *_7.5 “Prepare tiem [sic] entry for pleadings files from 1999 through 2001”_
7/13/04 *_7.0 “Prepare time entry for pleadings from 2001 through June 2003”_
7/14/04 * 10.0 “Prepare entries for pleadings from 7/03 through 7/04; input costs incurred (expert fees, outside copying, messengers, postage, etc.); input charges for photocopying, facsimiles, long distance phone calls; prepare entries for meetings, corres., and t/es” 1
* Reduction also noted by Special Master to time entry for this date. Plaintiffs did not object to the reduction of time entries in note 4 of the Report.
APPENDIX B
Excessive or Unnecessary Hours
Shelby Floyd
Date Hours Description
6/12/01 0.1 “arrange travel for settlement conference”
7/24/01 0.1 “make flight reservations”
Total 0.2
Stanley Levin
Date Hours Description
7/16/03 0.5 “Tel. confs. with Edie (.2); Mark Bennett (.10) about mediation” (0.8) 1
Total 0.5
Edie Feldman
Date Hours Description
4/11/03 4.5 “Revise and edit Answering Brief in light of suggestions by Attorney Levin” 2
3/24/04 * 0.7 “Review David Keala’s objections to admissibility of Exhibits 1-35; review David Keala’s objections to exhibits 36-62; review exhibits and evaluate; research federal rules of evidence re: objections to documents relied upon by experts” (2.7)
5/09/04 * 2.0 “Research Hawaii law re: jury instructions on assault and battery, negligent infliction of emotional distress, false imprisonment, loss of consortium and punitive damages; prepare proposed jury instructions.” (4.5)
5/24/04 * 2.0 “T/C w/ J. Kay’s law clerk re: review of J. Kay’s instructions online; Rx J. Kay’s general instructions; Rx 9th Cir. model jury instructions; Rx Fed. Civ. Instructions; Rx HI Civil Instructions; prepare revised jury instructions.” (4.6)
6/07/04 * 2.0 “Review exhibits and summary of transcripts to prepare opening statements; select exhibits to be used during opening; meet with client; telephone call to Dr. Connelly re: del;ay [sic] in calling her as witness” (8.0)
7/11/04 * 2.0 “Research entitlement to attorney’s fees under section 1988 in Hawaii District and 9th Circuit; prepare motion for attorney’s fees and memorandum of law in support of motion and revise.” (4.5)
Total 13.2
Bruce Ellis
Date Hours Description
3/03/04 * 1.00 “Preparation, travel and attendance at further settlement conference with Judge Chang”
6/22/04 * 1.00 “Travel [sic] and from attendance at court for jury instructions with Judge Kay”
H Reduction also noted by Special Master to time entry for this date. Plaintiffs did not object to the reduction to time entries listed at note 3 of the Report.
APPENDIX C
Plaintiffs’ Costs
Expert Witness Fees
Date Description Amount
11/30/99 “Fee for Dr. Robert Marvit for review of records of Justin Kaupe” $ 300.00
4/06/00 “Invoice from Robert C. Marvit, M.D. for Chart No. FELED000 for services rendered for 3/2000” $ 1,226.00
11/30/00 “Invoice from Robert C. Marvit, M.D., Inc. for Chart No. FELD000 for services rendered from 3/2000 through 9/2000” $ 550.00
8/26/02 Beverly James $ 4,412.50
1/24/01 “Check no. 790 for payment of records review and report by Dr. Robert Patterson.” $ 1,000.00
1/29/03 Barbara Bateman $ 180.00
1/06/04 Beverly James $ 968.24
7/13/04 Robert Patterson, Psy.D. $ 4,462.91
7/13/04 Robert C. Marvit, M.D., Inc. $ 2,080.00
7/13/04 Beverly James $ 5,333.20
7/13/04 Nelson Lugo, M.D. $ 4,000.00
TOTAL $24,511.85
Paralegal Cost Reported by Attorney Feldman
Date Description Amount
6/03/04 “Paralegal Support for preparation of Witness Binders, update Pleadings files, prepare packets for trial” $ 125.00
6/15/04 “Paralegal Support — 2 hours for review of deposition transcripts of David Keala for cross examination questions in both USDC and Second Circuit Cases.” $ 50.00
6/15/04 “Paralegal services: Review Discovery Documents and create table of relevant facts for Keala; Review and Summarize Depo of Keala” $ 100.00
7/14/04 “Payment to Legal Asst. Maddy Aho for assistance in calculating billable hours, input of time entries, and calculation of costs” $ 537.50
Total Litigation Support $ 812.50
less 55% $ 365.25
Notes
. The facts of this case are discussed extensively in the Court’s Orders (1) Granting in Part and Denying in Part Defendant Keala’s Motion for Judgment on the Pleadings and for Summary Judgment, filed 11/29/01 (2) Dismissing Plaintiff's Counter-Motion for Summary Judgment, Granting in Part and Denying in Part State Defendant’s ‘ Motion to Strike, Granting in Part and Denying in Part State Defendants' Motion for Judgment on the Pleadings and Summary Judgment; and Denying Plaintiffs’ Motion for Summary Judgment, filed 2/23/04.
. Aizawa, Murakami, Yamakawa, Zane, and Keala were sued in both their, official and individual capacities. ,
See
Compl. H 7 — 11. The State D.O.E., A-Plus and Aizawa, Mura-kami, Yamakawa, Zane and Keala in their
. The numbering of the causes of action in the Complaint is not in sequence and duplica-tive in some instances. The Court lists the counts in the order that they are plead in the Complaint.
. The Court denied Defendant Keala’s motion with respect to Plaintiffs’ Section 1983 claim based on violation of the Fourteenth and Fourth Amendments to the United States Constitution as well as Plaintiffs’ Loss of Consortium and Negligent Infliction of Emotional Distress Claims. The Court granted Defendant Keala’s motion with respect to Plaintiffs’ claims based on violation of Title IX, Section 1981, and Section 1983 insofar as they were based on violations of the rights secured by the Hawaii Constitution and the Fifth and Ninth Amendments to the United States Constitution. See November 29, 2001 Order.
. The settlement, dated March 25, 2004, between John, Jane and Zane, in her individual capacity, was for $9,750, including attorneys' fees and costs. See Ex. A to Def. Keala’s Opp. to Plt.’s Mot. for Costs, filed 8/05/04.
. Alternatively, the Court found that neither Defendant Murakami nor Yamakawa were directly involved in the Keala incident. The Court also dismissed Plaintiffs Section 1983 claim against Defendant Zane in her official capacity.
. Pursuant to the Court’s April 28, 2004 Order Granting Plaintiffs’ Motion for Reconsideration, the Court reinstated Plaintiffs' punitive damages claim against Keala in his individual capacity.
. On April 22, 2004, a Stipulation for Dismissal with Prejudice of All Claims Against Defendant Sonia Zane was filed.
. The jury found that Plaintiff had $250 in damages for the nature and extent of his injuries plus $11,000 in mental, physical, emotional pain and suffering; however, the jury apportioned only ten percent of Plaintiff's damages to the February 19, 1998 incident with Defendant Keala and the remaining ninety percent of the damages to a pre-exist-ing injury or condition. Accordingly, the compensatory damages figure was reduced to $1,125. See Verdict (Jun. 29, 2004).
. Strict adherence to the requirement stated in
Herrington
that the offer of judgment be unconditional is questionable.
Herrington
did not involve a conditional offer or any substantive discussion of the effect of a conditional offer. Furthermore, the Ninth Circuit, in
Lang v. Gates,
. Zane settled with Plaintiffs for $9,750 (including fees and costs) pursuant to a settlement agreement dated March 25, 2004.
. The Court notes that Plaintiffs may very well have accepted a subsequent offer by Kea-la on similar terms after dismissal of the State Defendants.
. The Special Master noted that he could not determine, separate and/or attribute time spent by Plaintiffs' counsel to a particular claim or Defendant during this time period except for time spent on the Ninth Circuit appeal.
. The Special Master rejected Plaintiffs' offer to reduce their fee requests by thirty percent (30%) on the basis that the offer was “inadequate given the large discrepancy between the amount awarded to Plaintiffs by the jury and the total amount of accrued fees and costs stated by Plaintiffs.” (Report of the Special Master, at 12-13).
. Plaintiffs did not request a specific amount in the Complaint or First Amended Complaint. Plaintiffs mentioned in their Final Pretrial Statement that the cost of family therapy for John and Jane would cost $95,000 and that they were entitled to “a substantial award of damages to be shown at trial." Pits’ Final Pretrial Statement, filed 2/17/04, at 9-10.
. The Court has reviewed all of Plaintiffs’ counsels' time entries, including the dates listed on pages 16 -17 of Keala's Objections to the Report. To the extent that reductions are not reflected in appendices A, B or C to this Order, the Court denies Keala’s objections.
See Gates
v.
Deukmejian,
. The Court agrees with Plaintiff that the Ninth Circuit does not sanction a proportionate reduction of the lodestar amount based on the number of defendants dismissed.
See Cunningham,
. Plaintiffs are not entitled to fees on the basis of success against Zane.
See Pekarsky v. Ariyoshi,
. Notably, the Special Master concluded that Plaintiffs were not prevailing parties as against Zane and Plaintiffs have not specifically objected to this finding. See supra note 18.
. The Court reduced the number of hours reported by Attorney Feldman by 0.4 on account of an apparent error in the number of hours reported on 11/07/04. See Ex. C to Pits.' Objections to Report at 2.
. This figure includes general excise tax at the rate of 4.166%.
. The Special Master did not state exactly how much was deducted from Plaintiffs’ requested costs on account of "copying costs.” See Report at 34. The Court calculates the amount deducted by the Special Master as $1,606.50 by subtracting the deductions in the amounts of $8,033.08 (Knight Services), $1,082.00 (Video Teleconferencing) and $877.50 (Litigation Support) from $11,599.08, the total reduction made by the Special Master.
. The Court notes that secretarial services is commonly included in an attorneys' hourly rate. However, Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir.1991), sanctions reimbursement for secretarial costs. Moreover, the Court notes that Attorney Feldman's requested hourly rate of $140 is fairly low in comparison with other attorneys of similar experience in the community.
Expense reported by Attorney Feldman for paralegal services, however, will be reduced by the percentages applied with respect to the attorneys' fees analysis as they are not different than the services provided by paralegal Ellis and paralegal fees are calculated the same as attorney fees.
See Missouri
v.
Jenkins,
. The Court is duty-bound to review the Special Master’s legal conclusions de novo.
See Wallace v. Skadden, Arps, Slate, Meagher & Flom, LLP,
. This figure includes the lodestar amount ($95,950.79), see supra Section II.C., and fees awarded in connection with Plaintiffs’ Motion for Attorneys’ Fees ($2,631.55). See supra Section II.E.
. This figure includes costs awarded in connection with the litigation generally ($27,-284.97), see supra Section III, and in connection with Plaintiffs’ Motion for Attorneys' Fees ($22.40). See supra Section II.E.
. Time not sufficiently detailed also would be omitted due to clerical nature 'of work performed,
. The Court reduces the entry of 0.8 hours by 0.5 hours because the time noted by Attorney Levin totals 0.3 hours, not 0.8 hours.
. It appears that these revisions were made after Attorney Feldman attended the hearing/oral argument on the appeal to the Ninth Circuit. See Exhibit 3 to Pits’ Mot. for Attorney’s Fees and Costs at 26 (time entry for 11/07/02).