Carter v . NHDHHS 07-CV-023-SM 03/31/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Wayne Carter, Toni Cellucci,
and Stacey Durgin, individually
and on behalf of all similarly
situated persons,
Plaintiffs
v. Civil N o . 07-cv-23-SM
Opinion N o . 2009 DNH 040
Nicholas A . Toumpas, Commissioner1
of the New Hampshire Department
of Health and Human Services,
in his official capacity
O R D E R
Counsel for the named plaintiffs and subsequently certified
class seek an award of attorneys’ fees. As prevailing parties in
this civil rights action they are entitled to recover “a
reasonable attorney’s fee” as part of the costs of bringing the
suit. 42 U.S.C. § 1988.
The court must exercise discretion in determining an
appropriate award, taking into account the hours reasonably
expended, a reasonable hourly rate, and other familiar factors
that may warrant an adjustment upwards or downwards. Hensley v .
Eckerhart, 461 U.S. 424 (1983); Coutin v . Young & Rubicam P.R.,
124 F.3d 3 3 1 , 337 (1st Cir. 1997).
1
Commissioner Toumpas succeeded Commission Stephen while
this litigation was pending.
The Lodestar
The starting point in determining a reasonable fee is the
“lodestar,” that i s , the number of hours reasonably expended in
the litigation multiplied by a reasonable hourly rate. The party
seeking a fee award bears the burden of documenting the number of
hours reasonably expended by counsel, as well as the reasonable
hourly rate. Hensley, 461 U.S. at 433. Offering contemporaneous
time records detailing the discrete legal tasks performed is the
preferred method of supporting fee claims. If the documentation
is inadequate, the court may reduce the award accordingly.
The fee applicant is also expected to exercise “billing
judgment,” excluding hours not “reasonably expended” and time
that was excessive, redundant or otherwise unnecessary. Hensley,
461 U.S. at 434. Generally speaking, hours that an attorney
would not properly bill to his or her client in the private
sector cannot properly be billed to the adverse party under a
fee-shifting statute.
Id.
The lodestar amount, then, includes only those hours the
court determines were reasonably expended in litigating the case,
multiplied by a reasonable hourly rate.
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Hours Reasonably Expended
This case was neither particularly novel nor complex. The
Disability Rights Center, Inc., and New Hampshire Legal
Assistance recognized the obvious — that the State of New
Hampshire, acting through its Department of Health and Human
Services, was plainly failing to meet its federal statutory and
regulatory obligations to promptly make eligibility decisions on
applications for benefits under the Aid to the Permanently and
Totally Disabled Program (“APTD”), and to notify benefit
applicants of the right to an administrative fair hearing to
contest extended delays. The Department’s obligations under
applicable federal law were not in doubt, nor was its failure to
meet those obligations. Accordingly, when this suit was filed,
the Department did not contest plaintiffs’ claims on the merits.
The Department’s first responsive pleading was a motion for entry
of judgment against itself. Essentially, the Department
confessed liability. The only remaining issue was the specific
nature of the relief to be afforded.
Plaintiffs’ counsel insisted, not unreasonably, upon
proceeding with its request for class certification to ensure
that the relief would be systemic in nature. The parties were
directed by the court to devote their attention to negotiating an
agreed-upon order that would afford appropriate relief, and, in
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due course, that was accomplished. The class was certified and
the order granting relief entered.
Plaintiffs’ counsel now seek fees and costs in a total
amount of $123,571.38, for 408 hours of work by eight different
attorneys, from three different legal services organizations, at
hourly rates ranging from $189.16 to $372.50. In support of that
fee application, counsel have submitted billing records that
reflect contemporaneous time-keeping, and, in general, describe
the legal tasks performed. The detail and specificity of those
records are poor, leaving the court to speculate far too often
about just what was being done (e.g. “phone conf about filing
case w/BM and KD,” “call to [Name], who got class notice,” “moot
court,” “planning for conference call with litigation partners”).
At first blush, the fee application seemed to be plainly
excessive, likely due to overstaffing. “Overstaffing is a
familiar problem in cases in which fee-shifting is in prospect.”
United States v . One Star Class Sloop Sailboat, 546 F.3d 2 6 , 43
(1st Cir. 2008). Billing references to multiple conferences
among “litigation partners” also raised some doubt about the
necessity of so many lawyers working on such a straightforward
legal matter. The undisputed merits of this case hardly seemed
to require joinder of a consortium of legal services providers to
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effectively pursue i t . Detailed review of the submitted time
sheets validate that initial reaction.
Two attorneys performed the bulk of meaningful work on this
litigation — Amy Messer, Esq., of the Disabilities Rights Center,
and Bennett Mortell, Esq., of New Hampshire Legal Assistance.
Other counsel, by and large, merely reviewed that work,
participated in general strategy or policy discussions, or
attended hearings handled by lead counsel.
Attorney Messer is very experienced in disabilities rights
litigation, including class actions, and is regarded by the court
as a highly skilled and effective litigator. Attorney Mortell,
is less experienced than Attorney Messer, but is fairly equated
to a capable junior partner at a quality law firm. Attorney
Messer could have handled this matter alone, but litigation of
this nature does normally require at least two attorneys. While
some additional support work from other counsel is to be expected
from time to time, this case did not require the staffing
allocated to it — employing eight lawyers from three different
legal services organizations was both unnecessary and
unproductive. “As a general matter, the time for two or three
lawyers in a courtroom or conference when one would do may
obviously be discounted. . . . A trial court should ordinarily
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greet a claim that several lawyers were required to perform a
single set of tasks with healthy skepticism.” Lipsett v . Blanco,
975 F.2d 9 3 4 , 938 (1st Cir. 1992) (citation and internal
punctuation omitted).
The billing records disclose repetitive conferences among
multiple counsel, excessive time spent o n , and duplicative
drafting work, as well as unnecessary, duplicative, and
unproductive reviews of drafts of pleadings and memoranda. For
example, a motion for oral argument hardly requires nearly two
hours to draft, review, revise and file, as claimed, particularly
given this court’s well known policy of affording oral argument
on motions upon request, absent some compelling reason to deny it
(e.g., a frivolous motions).
After reviewing the submitted time sheets and taking into
account the straightforward nature of the claims and virtual
certainty of the result, and the often duplicative, unnecessary
and excessive time spent on tasks that added little of productive
value to the litigation’s successful prosecution, and considering
what reasonable counsel would have legitimately billed a paying
client under like circumstances, the court has adjusted the
claimed hours to arrive at a reasonable number of hours expended
on the litigation. See Grendel’s Den, Inc. v . Larkin, 749 F.2d
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945 (1st Cir. 1984). While defendant has interposed many valid
objections to the requested hours on the grounds referenced, the
court disagrees that the full reduction sought by defendant would
result in a reasonable fee under the circumstances. The
following adjustments are made.
Attorney Bennett B . Mortell
Attorney Mortell seeks recovery for some 172.7 hours. Many
of the time charges submitted are indefinite with respect to the
specific tasks performed, relate to preparation for and
attendance at unnecessary and repetitive meetings with co-
counsel, or allude to multiple phone calls with putative class
members “who got class notice,” without elaboration. A
legitimate argument can be made that the itemization is
inadequate to a larger degree than found by the court, but the
court will reduce Attorney Mortell’s claimed hours by a total of
50. That reduction fairly accounts for excessive, unproductive
and unnecessary work. That reduction represents approximately 20
hours related to the multiple phone calls from “class members who
got notice” referred to earlier, the subject matter of which
could and should have been handled as a routine clerical matter
by clerical staff. The additional 30 hours of reduction
represents the court’s culling out vague and duplicative charges
or reducing those that involved more time than reasonably
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necessary, or that were unnecessary altogether (e.g., “moot
court,” preparation for excessive co-counsel meetings, excessive
conference calls, excessive review and drafting of pleadings).
The bulk of the work on this case was performed by Attorney
Mortell and the balance of the hours claimed was reasonably
necessary to pursue it effectively and with reasonable
efficiency. Attorney Mortell’s collaboration with Attorney
Messer was also reasonable and necessary. With some exceptions
noted later, the other six lawyers participating were not
necessary in assisting Attorneys Mortell and Messer, and the time
they expended was not reasonable in the context of a fee request.
Attorney Amy Beth Messer
Attorney Messer acted essentially as senior counsel,
reviewing much of Attorney Mortell’s drafting work and litigation
activity. She also participated in negotiating an appropriate
order affording appropriate class relief. As noted earlier,
Attorney Messer and Attorney Mortell were quite capable of
handling this rather uncomplicated case without additional legal
assistance. While I recognize that the legal services culture
tends to encourage more, rather than less, staffing on cases seen
as vehicles of systemic reform, in part no doubt for the training
and experience opportunities presented, still, a defendant
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subject to fee-shifting obligations is not required to pay fees
beyond what was reasonable under the circumstances.
Attorney Messer is quite familiar with civil rights
litigation in this court, is very capable and effective, can and
has successfully negotiated similar, but far more complicated,
settlement agreements with the State, and is more than up to the
task of supervising litigation of this type.
Attorney Messer seeks reimbursement for 67.55 hours of work
in this case. I find her time expenditures to have been
productive, useful, and reasonable in the main. However, I have
reduced her total claimed hours by 18.9 to arrive at a reasonable
number of hours expended. That reduction reflects sometimes
vague descriptions of the actual legal work performed, excessive
and unnecessary communication among multiple counsel, as well as
multiple and unnecessary conferences among the many assigned co-
counsel. I have allowed many hours that arguably were
duplicative of Attorney Mortell’s work, but, in retrospect,
Attorney Messer’s experienced review and assistance was
appropriate and no doubt contributed substantively to the
successful negotiation leading to the relief obtained.
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Attorney Kay E . Drought
Attorney Drought claims reimbursement for 69.5 hours.
Having reviewed the supporting time sheets, and given the
straightforward nature of this case, I have reduced that claim to
8 hours of time reasonably expended in pursuing this litigation.
Attorney Drought is of course capable, effective and efficient in
her practice. But, her effort was simply not reasonably
necessary to this litigation, with the exception of occasional
tasks related to drafting pleadings and, more substantively, her
participation in negotiating sessions with the State. The rest
of her billed time related to multiple conferences and telephone
calls among multiple and unneeded counsel, unnecessary and
duplicative review or editing of others’ work, administrative
coordination, and participation in duplicative and unnecessary
strategy sessions. Attorney Drought’s time charges also reflect
the same vagueness and lack of specific descriptions of work
actually done, but Attorney Drought’s drafting and negotiating
contributions were valuable, reasonable, and assisted in
achieving the favorable outcome for the class plaintiffs.
Attorney Christine D . Lavallee
Attorney Lavallee has submitted time charges adding up to
39.5 hours for which she seeks reimbursement. Having carefully
reviewed those time charges, the same conclusions apply with
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respect to lack of specificity in describing what legal tasks
were performed, and, the overall claim is excessive given that
two attorneys (Messer and Mortell) were more than able to handle
this case. I have identified 7.7 hours of work among the total
claimed that can fairly be said to have contributed to the
litigation effort in a non-duplicative, useful, and reasonable
manner.
Attorney Lavallee interacted with clients and potential
clients at the outset, prepared notes for Attorney Mortell, and
performed some discrete legal research tasks. Otherwise her time
was largely duplicative of work done by others, and was
unnecessary (e.g., preparing and attending hearings already
capably covered by others).
Attorney Laura Redman
Attorney Redman seeks reimbursement for 22.6 hours expended
on this litigation. Most of that time, as reflected in the
submitted time sheets, consisted of work duplicative of research
seemingly done by others. However, time she devoted to class
certification issues appears to have been reasonable, not
duplicative, and useful. Accordingly the court finds 2 hours to
be reasonable as an adjunct contribution to the principal efforts
of Attorneys Messer and Mortell.
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Attorneys Marc Cohan, Gina Mannix and Aaron Ginsberg
Time sheets submitted to support fees claims for work done
by Attorneys Cohan, Mannix, and Ginsberg disclose activity that
was entirely duplicative of work done by others, or work which
was otherwise unnecessary. Attorney Ginsberg’s time appears to
have been spent almost entirely in connection with telephone
conferences of an undisclosed nature with “class members.” Given
the vague description, I conclude that those phone calls were
just as likely to have been clerical in nature and should have
been handled by clerical or administrative staff. Attorney
Mannix’s time was essentially applied to unnecessary and
redundant review of pleading drafts and conference calls with the
other counsel about strategy and procedure, none of which was
reasonably necessary in this straightforward case. Her work
merely duplicated capable efforts by Attorneys Messer and
Mortell. Similarly, Attorney Cohen’s time was devoted to
unnecessary review of drafts and pleadings and communication with
other counsel about strategy, none of which was reasonably
necessary to the successful prosecution of this litigation.
None of the time expended by Attorneys Cohen, Mannix or
Ginsberg was reasonably expended in connection with the
representation provided in this case, and defendant should not be
required to pay for that time.
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Travel
Travel time will be allowed at one-half the hourly rate
determined to be reasonable with respect to this matter. See
e.g., Furtado v . Bishop, 635 F.2d 915, 922 (1st Cir. 1980)
(discouraging compensation at professional rates for travel
time); Maceira v . Pagan,
698 F.2d 3 8 , (1st Cir. 1983) (one-half
hourly rate adequate travel compensation). Travel time as
claimed by Attorneys Drought and Mortell, is found to be
reasonable as claimed. Travel time claimed by Attorney Lavallee
to attend a hearing along with numerous other counsel was not
reasonably necessary, and is disallowed.
Monitoring
It perhaps stretches the point to argue that post-judgment
monitoring is required in this case to ensure the State’s
compliance with the court’s order. Given that the State
recognized its liability at the outset and agreed to the
essential relief afforded, the court presumes the State will
comport itself as required by the law, and will not put itself in
the position of risking a contempt citation. Nevertheless, in
fulfilling their own professional responsibilities, counsel to
the class will be required to occasionally review reports
provided for in the order to spot-check compliance.
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The court will include an award of fees for 4 hours of
Attorney Messer’s time to cover reasonable post-judgment review
of reports of the State’s compliance. That time should be more
than adequate for counsel to determine whether the state is not
in compliance. Should an enforcement action become reasonably
necessary, work reasonably associated with developing that
action, if successful, will be considered for a reasonable fee
award at that time.
Reasonable Hourly Rate
Plaintiffs seek an hourly rate for Attorney Messer’s time at
$334.16, Attorney Mortell’s time at $271.66, Attorney Drought’s
time at $365.00, and Attorney Lavallee’s time at $238.33. In
support of those rates plaintiffs have filed affidavits from
several accomplished members of the New Hampshire Bar opining
that the reasonable hourly rate charged in New Hampshire for work
associated with federal litigation varies by attorney, from a low
of $175.00 per hour to a high of $485.00 per hour. Defendant
counters with a somewhat dated opinion letter, also from
accomplished counsel, suggesting that a reasonable hourly rate
(in 2004) would range from $150.00 to $225.00 per hour, depending
upon the attorney’s skill and experience. The court finds that
plaintiff’s proffer is decidedly skewed to the high side while
defendant’s is skewed to the low.
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The hourly rate multiplier should reflect the “prevailing
market rates in the relevant community,” here, New Hampshire.
Blum v . Stenson, 465 U.S. 886, 895 (1984). Legal Services
attorneys generally do not charge anything close to market rates
for their services, and often charge clients nothing at all.
Generally, non-profit organizations are entitled to be
compensated at the market rate of the legal community at large.
Blum v . Stenson,
465 U.S. at 895-96. Under these circumstances,
then, the court may use “counsel’s standard rate, or the
prevailing market rate in the forum, or a reasonable rate in
between.” One Star Class Sloop Sailboat 546 F.3d at 4 1 ; see
also Maceira v . Pagan,
698 F.2d at 4 0 . New Hampshire attorneys
of skill and ability comparable to that of Attorney Messer can
reasonably expect to charge about $300 per hour for legal
services related to litigation in this court. Attorney Drought’s
reasonable hourly rate would be the same. Those with skill and
experience equivalent to that of Attorney Mortell could
reasonably expect to charge $225 per hour, and Attorney Redmond
and Lavallee’s rate would be the same.
Fee Award
While recognizing that it is difficult to accurately
identify, retrospectively, what legal work was truly excessive,
unnecessary, duplicative and inefficient, still, in this case I
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am comfortable in concluding that the fee request as submitted is
not realistic. That is particularly so given the nature of the
claims, the near certainty of result, the confession of liability
by the State at the outset, and the expectation that reasonable
counsel ought to be able to agree upon appropriate relief in
short order under such circumstances. I am also confident that
but for the obvious overstaffing, this case could have been
handled by Attorneys Messer and Mortell in less than 125 hours
total, if it had been left to their own control and judgment, and
relieved of the obligation to call, conference, discuss, review
and explain all aspects of the case among three separate legal
services organizations. I am approving reasonably compensable
hours in excess of that number, however, because I have reviewed
the time sheets in detail and approval of less time would not
fairly account for unavoidable inefficiencies and uncertainties
as litigation progresses. Counsel cannot anticipate every
development and must sometimes prepare for circumstances that do
not arise. The court determines the lodestar amount to be as
follows.
Attorney Messer 48.65 hours $300.00 $14,595.00
Attorney Drought 8.0 hours $300.00 $ 2,400.00
Travel 9.0 hours $150.00 $ 1,350.00
Attorney Mortell 122.7 hours $225.00 $27,607.50
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Travel 13.7 hours $112.50 $ 1,541.25
Attorney Lavallee 7.7 hours $225.00 $ 1,732.50
Attorney Redman 2.0 hours $225.00 $ 450.00
Monitoring 4.0 hours $300.00 $ 1,200.00
TOTAL $50,876.25
I do not find any reason to adjust the lodestar amount
either upwards or downwards in this case. Plaintiffs point to
other civil rights litigation as similar and stress that higher
fees awards were approved. But in those cases the award of fees
were stipulated and/or those cases were far more work-intensive,
involving disputed issues, uncertain outcomes, discovery,
extensive motions practice, lengthy negotiations, and exceptional
results. That is not the case here. This was not an unimportant
matter by any means, and the relief obtained was meaningful to a
large and vulnerable population, but the award made fairly and
reasonably compensates counsel for the legal work reasonably
required to accomplish that predictable result. Defendant should
be required to pay no more.
Indeed, while the record is not clear on this point, and
defendant has not pressed i t , an argument might be made that this
dispute could have and probably should have been resolved by
agreement even before suit was filed. See, e.g., Spegon v .
17
Catholic Bishop of Chicago, 175 F.3d 5 4 4 , 553 n.4 (7th Cir.
1999). Certainly plaintiffs were under no obligation to refrain
from filing suit, but failure to pursue settlement reasonably
attainable does reflect on later claims for substantial fees
under fee-shifting statutes.
Id.
Conclusion
Plaintiffs, as prevailing parties, are awarded $50,876.25 in
reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988.
SO ORDERED.
Steven J./McAuliffe
Chief Judge
March 31, 2009
cc: Christine D. Lavallee, Esq.
Catharine A. Mallinson, Esq.
Amy B. Messer, Esq.
Bennett B. Mortell, Esq.
Glenn A. Perlow, Esq.
Nancy J. Smith, Esq.
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