City's Facebook Reponse to Attorney Fees

8/13/2019 City's Facebook Reponse to Attorney Fees

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DONNA Y.L. LEONG, 3226Corporation Counsel

CURTIS E. SHERWOOD, 7851Deputy Corporation Counsel530 S. King Street, Room 110City and County of HonoluluHonolulu, Hawaii 96813Telephone: (808) 768-5134Facsimile: (808) 768-5105Email address: [email protected]

Attorneys for Defendants

ANDREW LUM and theCITY AND COUNTY OF HONOLULU

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

HAWAII DEFENSE FOUNDATION,CHRISTOPHER BAKER, and DEREK

SCAMMON,

Plaintiffs,

vs.

CITY AND COUNTY OFHONOLULU; ANDREW LUM, IN HISPERSONAL AND OFFICIALCAPACITY; JOHN DOES 1-10 IN

THEIR PERSONAL AND OFFICIALCAPACITIES,

Defendants.

)))

))))))))))))

)))))

CIVIL No. CV12-00469 JMS RLP

DEFENDANTS CITY AND COUNTY

OF HONOLULU AND ANDREWLUMS MEMORANDUM INOPPOSITION TO PLAINTIFFSMOTION FOR ATTORNEY FEESFILED FEBRUARY 4, 2014;DECLARATION OF COUNSEL;CERTIFICATE OF SERVICE

DEFENDANTS CITY AND COUNTY OF HONOLULU AND ANDREWLUMS MEMORANDUM IN OPPOSITION TO PLAINTIFFSMOTION FOR ATTORNEY FEES FILED FEBRUARY 4, 2014

Case 1:12-cv-00469-JMS-RLP Document 62 Filed 02/18/14 Page 1 of 30 PageID #: 806


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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................. iv

I. INTRODUCTION..................................... Error! Bookmark not defined.

II. PROCEDURAL BACKGROUND............................................................ 3

III. DISCUSSION ........................................................................................... 6

A. Plaintiffs Memorandum in Support of their Motion Violates LocalRule 7.5 and Should Be Stricken ........................................................ 6

B. Plaintiffs Are Not Entitled to Recover Unreasonable Attorneys Fees. 6

1. PLAINTIFFSREQUESTEDHOURLYRATESAREGROSSLYEXCESSIVE....... 8

A. DETERMINATION OF AREASONABLYHOURLYRATE.................. 8

B. REASONABLEHOURLYRATES FORCOUNSEL ARE$180, $175AND $125 ............................................................................... 10

2. PLAINTIFFSARENOTENTITLED TORECOVERUNREASONABLEATTORNEYS FEES........................................................................... 13

A. PLAINTIFFSCANNOT RECOVER ANUNREASONABLEAMOUNT

OF FEES INCURRED TO RESEARCH, DRAFT ANDREVISESUBMISSIONS .......................................................................... 14

B. PLAINTIFFSCANNOT RECOVERFEES THAT ARENOTADEQUATELY DESCRIBED ....................................................... 18

C. PLAINTIFFSCANNOT RECOVERATTORNEYS FEES FORSECRETARIAL/PARALEGAL WORK........................................... 20

D. PLAINTIFFSCANNOT RECOVER FORDUPLICATEWORK........... 21

E. TIME THAT IS BLOCK-BILLED SHOULD BEREDUCED ............... 22

F. TIMEBILLED IN QUARTER-HOURINCREMENTS ARE SUBJECTTO REDUCTION....................................................................... 24

3. PLAINTIFFSARENOTENTITLED TOANYFAVORABLEADJUSTMENT TOTHELODESTARCALCULATION.......................................................... 26

IV. CONCLUSION ....................................................................................... 26



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TABLE OF AUTHORITIES

Cases

Aslam v. Malen & Assocs., 669 F.Supp.2d 275 (E.D.N.Y. 2009)-------------------20Au v. The Funding Group, Inc., 2013 WL 1187919 (D. Haw. Mar. 21, 2013) ----22City of Burlington v. Dague, 505 U.S. 557 (1992) ------------------------------------12Davis v. City and County of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992)- 7Fischer v. SJB-P.D., Inc., 214 F.3d 1115 (9th Cir. 2000) ------------------------------ 6Frankl v. HGH Corp., 2012 WL 1755423 (Ct.Sp.App. of Md. 1998)---------- 7,9,21Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992) ---------------------------------13Harris v. Trash Man, LLC, 2013 WL 1932715 (D. Haw. Apr. 16, 2013) -- 11,20,24Heller v. District of Columbia, 832 F. Supp.2d 32 (2011) ----------------------------- 8Hensley v. Eckerhart, 461 U.S. 424 (1983) --------------------------------------------- 6I.T. ex rel. Renee T. v. Dept of Educ., Hawaii,

2012 WL 6969333 (D. Haw. Nov. 30, 2012) ----------------------------------------23Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987) ------------------------ 8Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) --------------------7,26Morales v. City of San Rafael, 96 F. 3d 359, 364 n. 9 (9th Cir. 1996)--------------- 7Natl Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988) ------------------12Pennsylvania v. Delaware Valley Citizens' Council for Clean Air,

483 U.S. 711 (1987) --------------------------------------------------------------------- 6Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998)-----------------------22Signature Homes of Hawaii, LLC v. Cascade Sur. & Bonding, Inc.,

2007 WL 2258725 (D. Haw. Aug. 3, 2007)------------------------------------------22Shea v. Kahuku Hous. Found., Inc.,

2011 WL 1261150 (D. Haw. Mar. 31, 2011) ----------------------------------------12Soler v. G & U, Inc., 801 F.Supp. 1056 (S.D.N.Y. 1992) ----------------------------13Sound v. Koller, 2010 WL 1992198 (D. Haw. Mar. 5, 2010) -------------------- 12,20Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632 (D. Haw. 1993)------13U.S. Bank Nat. Assn v. Yamamura,

2009 WL 5851091 (D. Haw. Sept. 30, 2009) ---------------------------------------12Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002) ----------------------------------- 8Wereb v. Cnty. of Maui, 2010 WL 431976 (D. Haw. Feb. 4, 2010) ----------------11World Triathlon Corp. v. Dunbar, 539 F. Supp. 2d 1270 (D. Haw. 2008)----------24Yamada v. Weaver, 2012 WL 6019363 (D. Haw. Aug. 30, 2012) -------------- 11,12

Rules

Local Rule 7.5 ----------------------------------------------------------------------------6,18Local Rule 54.3(d) ----------------------------------------------------------- 6,10,14,18,19



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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 Departments (HPD) Facebook

page, the policies and practices applicable thereto and Captain Andrew Lums

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

SeeDkt # 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.



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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 attorneys fees.

Plaintiffs now seek to recover $61,779.25 in attorneys fees and general

excise tax thereon for a total of $64,690.29. SeeMotion 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.



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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



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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 Seabrights 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

Countys position regarding public posting on the Honolulu Police Departments

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



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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.



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III. DISCUSSION

A. Plaintiffs Memorandum in Support of their Motion ViolatesLocal 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. SeeLR 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). SeeFischer 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



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1. Plaintiffs Requested Hourly Rates Are Grossly Excessive

A. DETERMINATION OF A REASONABLEHOURLY 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 alsoLR 54.3(d) (a requesting partys memorandum in support of a fee request

shall set forth . . . the customary fee for like work prevailing in the attorneys

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 inconsistenthourly 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. SeeDec. B. Brazier at 18. Similarly, in the Motion, Plaintiffs request an hourly rate of $245 forMr. Beck. SeeMotion at 33. However, Mr. Beck requests $250/hour. SeeDec. A. Beck at 4.The total fees requested in the Motion, however, are based on the higher hourly rates requested

in counsels declarations.

Case 1:12-cv-00469-JMS-RLP Document 62 Filed 02/18/14 Page 11 of 30 PageID #:816


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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. Holcombs 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 theLaffeyMatrix, published and unpublished cases from this

Court and other courts, the prevailing cost of living in Hawaii, 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. SeeDeclaration of Richard L. Holcomb (Dec. R. Holcomb) at 10. However, records availablefrom the Hawaii State Bar Association (http://hsba.org/resources/1/Status/active.htm) indicatethat he was admitted in November 2009.5 This Court has already considered and rejected the applicability of the Laffey Matrix to thedetermination of reasonable hourly rates awarded in this District. SeeFrankl v. HGH Corp., CV10-00014 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).



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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. SeeDec. A. Beck at 4-5;

http://hsba.org/resources/1/Status/active.htm. Mr. Becks 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 FORCOUNSEL 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. SeeMIS 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 (seeMIS at 13-33); and (b) make clear that

they do not seek hourly rates for the reasonable market value of legal services in



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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 andattached 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 0900480 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 1100541 SOMKSC, 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. Assn

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.

Assn, 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) atthe 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 currentrates should be employed for historic hours when the government is paying the bill. NatlWildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988) ([C]urrent rates may not be usedwhen computing attorneys fees to be paid by the government. The district court should base thefee award on historic rates, those in effect at the time the attorney hours were expended.).



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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

rehg, (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



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A. PLAINTIFFS CANNOT RECOVER AN UNREASONABLEAMOUNT OF FEES INCURRED TO RESEARCH, DRAFT AND

REVISESUBMISSIONS

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 MISat 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)) havenumerous defects. Each defect warrants either the elimination of the entry in total, or asubstantial 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 isset forth separately and not cumulatively such that the Court may more readily determine its

response.



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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)



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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



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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 PLAINTIFFSCANNOT RECOVERFEES THAT ARENOTADEQUATELYDESCRIBED

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. PLAINTIFFSCANNOT RECOVERATTORNEYS FEES FORSECRETARIAL/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[]) citingAslam v. Malen &

Assocs., 669 F.Supp.2d 275, 27778 (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 todetermine 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 burdenof 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.



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Holcomb (20 hours)

Beck

Brazier

D. PLAINTIFFSCANNOT RECOVERFORDUPLICATIVEWORK

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.

SeeFrankl 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.

Becks time and 4.5 hours should be deducted from Mr. Braziers time:



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Beck

Brazier

E. TIME THATIS BLOCKBILLEDSHOULD BEREDUCED

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), citingRobinson v. City of Edmond, 160 F.3d

1275, 1284 n.9 (10th Cir. 1998).11

11See also I.T. ex rel. Renee T. v. Dept of Educ., Hawaii, CV 11-00676 LEK, 2012 WL

6969333, at *7 (D. Haw. Nov. 30, 2012) report and recommendation adopted, CV 11-00676



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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 of20% 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. TIMEBILLEDINQUARTER-HOURINCREMENTS ARE SUBJECTTO 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) affd in part, appeal

dismissed in part sub nomWorld Triathlon Corp. v. Hapai, 320 F. Appx 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 co-

counsel, 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. SeeMIS 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 across-

the-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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Documents

City's Facebook Reponse to Attorney Fees