There Was Humor Here—Ninth Circuit Agreed Attorney Petitioning For Fees Was Ill-Advised To Put In A Declaration By A Hawaiian Plumber About What The Plumber Charged!
As you will see, there is some underlying humor simmering in Roberts v. City and County of Honolulu, No. 16-16179 (9th Cir. Sept. 12, 2019) (published).
What happened here is that plaintiff settled a civil rights action against Honolulu after trying to settle the matter even before filing a complaint, a factor we bloggers believe was important in the appellate court’s ultimate result. After a complaint was filed, the parties reached a settlement agreement even though plaintiff’s counsel had begun drafting motions for preliminary injunction/judgment on the pleadings. Plaintiff moved for attorney’s fees and costs of $40,191.43, which was opposed by Honolulu. The magistrate recommended an award of $13,912.04 in fees and $400 in costs, after reducing the hourly rates being claimed and reducing for the two unfiled motions. The district judge awarded $21,302.95, an increase of $7,390.91 from the magistrate judge’s recommendation.
The Ninth Circuit vacated and remanded because the correct legal standard was not followed.
It agreed that the attorney has the responsibility to submit supporting evidence for requested hourly rates. Plaintiff’s counsel submitted his own declaration, a co-counsel declaration, declarations from other Hawaiian attorneys familiar with counsel’s work, “and an (ill-advised) declaration from a plumber.” (Tee hee!) Plaintiff’s lead counsel’s declaration also referred to hourly rates in San Diego, the Laffey Matrix describing D.C. area rates, and the plumber’s affidavit (the inclusion of which was even described as “inexplicable” by the Ninth Circuit panel). In its award, the district judge ignored this inapt proof but relied on the hourly rates awarded to the two attorneys in other civil right cases in the District of Hawaii. This reliance was error—examination of prior fee awards was not an acceptable substitute for considering the declarations actually submitted and explaining why those declarations did not establish the prevailing hourly rate in the district. So, the matter had to be remanded so that the correct legal standard could be applied to the case.
With respect to the time spent on the two unfiled motions, the Ninth Circuit panel remanded because it was a “close question” on whether this time should have been compensated given the status of pending settlement discussions.
The moral of this one may well be this: Don’t submit plumber declarations in support of a fee motion!
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