Free Motion for Review - District Court of Colorado - Colorado

Case 1:01-cv-02199-MSK-MEH

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Time of Request: Friday, May 04, 2007 Client ID/Project Name: clawson Number of Lines: 203 Job Number: 1862:26216360 Research Information Service: LEXSEE(R) Feature Print Request: Current Document: 1 Source: Get by LEXSEE(R) Search Terms: 1986 US Dist LEXIS 17856

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RICHTER, CHRIS KILLAN GUTHRO & JENSEN 225 N 5TH ST STE 1010 GRAND JUNCTION, CO 81501-2661

Case 1:01-cv-02199-MSK-MEH

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LEXSEE 1986 US DIST LEXIS 17856

JONATHAN MOSS, JR. and MELANIE MOSS, Plaintiffs, v. THE CITY OF COLORADO SPRINGS, et al., Defendants

Civil Action No. 84-C-1066

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

1986 U.S. Dist. LEXIS 17856

November 10, 1986, Decided and Filed; November 12, 1986, Entered OPINION BY: [*1] CARRIGAN OPINION: FINDINGS OF FACT AND CONCLUSIONS OF LAW JIM R. CARRIGAN, UNITED STATES DISTRICT JUDGE This action was tried to a jury commencing May 5, 1986, on the plaintiffs' claims of constitutional deprivations and negligence. Originally, two separate actions had been filed, one by Jonathan Moss, Jr. and Melanie Moss, and the other by Jonathan Moss, Sr. and Rever Juanita Moss. Shortly thereafter, these two actions were consolidated as Civil Action No. 84-C-1066. After a lengthy trial, the jury returned verdicts in favor of the plaintiffs Jonathan Moss, Jr. and Jonathan Moss, Sr. on their claims of negligence, and in favor of all plaintiffs and against the City of Colorado Springs on the constitutional claim under 42 U.S.C. § 1983, asserting unlawful execution of a search warrant. Judgment entered in favor of the plaintiff Jonathan Moss, Jr. on his claim of negligence in the amount of $ 256,374.60, and on behalf of Jonathan Moss, Sr. on his claim for negligence in the amount of $ 12,101.97. Judgment has entered for each of the four plaintiffs in the amount of $ 15,000.00 on their claims for deprivation of constitutional rights during the unlawful execution of a search warrant. [*2] On August 15, 1986, the following motions were heard: (1) Requests for Attorneys' Fees and Costs filed by both sets of plaintiffs; (2) Motions to Review Taxation of Costs filed by both sets of plaintiffs and the defendants; and (3) the defendants' Motion for a Stay of Execution. At the hearing, the plaintiffs withdrew their previously filed Motion to Correct Judgment. I. Attorneys' Fees. Throughout this action, plaintiffs Jonathan Moss, Jr. and Melanie Moss were represented by Kenneth H. Stern and Jeffrey A. Goldstein. Plaintiffs Jonathan Moss, Sr. and Rever Juanita Moss were represented by Cuba Y. Holloway and Roland P. Zengali of the firm of Bennett & Holloway. Prior to the hearing on the issue of attorneys' fees, the parties stipulated as follows: 1. That the 500 hours spent by Mr. Goldstein during the course of this litigation were reasonable and necessary, and that his hourly rate of $ 115.00 per hour was reasonable. Therefore, the parties agreed that attorneys' fees in the amount of $ 57,500.00 for Jeffrey A. Goldstein were reasonable and necessary. 2. That the 420 hours spent by Kenneth H. Stern in the course of this litigation were reasonable and necessary, and that [*3] his hourly rate of $ 125.00 per

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hour was reasonable. Therefore, the parties stipulated that the attorneys' fees figure claimed by the plaintiffs to compensate Mr. Stern, in the amount of $ 52,500.00, was reasonable and necessary. 3. That, with respect to the collective hours spent by Cuba Y. Holloway and Roland Zengali, attorneys' fees of $ 49,000.00 were reasonable and necessary for the hours they spent in the course of this litigation. 4. That the defendants maintained their objection to the amount of attorneys' fees based upon their allegation concerning the limited success obtained by the plaintiffs in this litigation. At the August 15, 1986 hearing, this issue was specifically reserved for decision by this court. In their briefs and at the hearing, the plaintiffs argued that, although they did not prevail on all of their causes of action, their claims presented a common core of facts, based on related legal theories; and therefore, the hours they expended cannot be segregated according to discrete claims. Furthermore, the plaintiffs argued that this court should reject a proportionality rule and that they had obtained excellent results. They argued, therefore, that their claims [*4] for attorneys' fees should not be reduced. The defendants argued that the plaintiffs, at one time or another during the course of this litigation, had pursued four constitutional claims and had named twelve defendants. The case proceeded to trial against four defendants on two constitutional claims. The plaintiffs were successful only on their claim of unreasonable execution of the search warrant against the City of Colorado Springs. Furthermore, the plaintiffs had alleged in their complaints damages of $ 9,000,000.00, and had recovered, collectively, only $ 60,000.00. Therefore, the defendants requested a substantial reduction of the $ 159,000.00 in attorneys' fees requested collectively by plaintiffs' counsel. A. Segregation of Claims. In Hensley v. Eckerhart, 461 U.S. 424 (1983), the United States Supreme Court stated, with respect to the segregation of claims: "Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claim, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee."

461 U.S. 420, 440. However, a lawsuit which involves "a common core of facts" [*5] or is "based on related legal theories" cannot be viewed as a series of discrete claims. Id. at 435. The instant case clearly presented a common core of facts and was based on related legal theories. All of the plaintiffs' claims involved the circumstances leading up to and including the execution of a no-knock search warrant against the plaintiffs' joint residence at night. The legal theories advanced by the plaintiffs, which arose from this common core of facts, were clearly interrelated. It would be impossible in the instant case to segregate among the different claims the hours spent by the plaintiffs' attorneys. Therefore, I decline to order a reduction of attorneys' fees on this basis. B. Degree of Success Achieved. The defendants' argument on this point stems from the fact that the plaintiffs were successful on only one claim against one defendant (the City of Colorado Springs), and were awarded, collectively, only $ 60,000.00, instead of the $ 9 million prayed for in their complaint. In Hensley, the Court repudiated any formalistic method or formula in linking overall success to the relief granted: "Nor is it necessarily significant that a prevailing plaintiff [*6] did not receive all the relief requested." Hensley, 461 U.S. at 436. In Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1980), the Tenth Circuit emphasized that any approach that drew a strict correlation between a plaintiff's monetary recovery and an assessment of his success on the merits would be flawed, since such an approach would ignore the fact that different issues would have varying degrees of importance: "Some courts have reduced fees where the thrust of the suit was for monetary recovery and the recovery was small compared to the fees counsel would have received if compensated at a normal rate for hours reasonably expended. We reject this practice. The amount of monetary recovery is not as significant as the policy being vindicated. . . . It should not be expressed as a requirement that the fee award have a particular relationship to the amount of monetary recovery."

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Ramos, 713 F.2d at 557 (emphasis added). In its most recent pronouncement on the subject, the Supreme Court specifically has rejected any proportionality rule that would link the awarding of attorneys' fees with the amount recovered for damages in cases of this nature. City of Riverside [*7] v. Rivera, U.S. , 54 LW 4844, 4849 (decided June 27, 1986). The Court there held that such a rule "would seriously undermine Congress' purpose in enacting § 1988" and would deny citizens a meaningful opportunity to vindicate constitutional rights. Id. at 4849. In Riverside, the plaintiff had sued thirty police officers and the City of Riverside. The trial court granted summary judgment in favor of seventeen defendants. At trial, the plaintiffs prevailed against five police officers and recovered damages totalling $ 33,350.00, including $ 20,050.00 on the state claim and $ 13,300.00 on the federal constitutional claims. In affirming an attorneys' fees award of $ 243,456.25, the Riverside opinion pointed out that a civil rights plaintiff seeks to vindicate important civil and constitutional rights in which the public, as a whole, has an interest. Id. at 4848. Furthermore, civil rights plaintiffs secure important social benefits not adequately reflected in relatively small awards. Id. at 4848. In the instant case, the plaintiffs' attorneys demonstrated great competence, dedication and devotion to their clients. Neither side gave up anything easily; [*8] the case was hard-fought on both sides in the best tradition of the legal profession. Furthermore, the public interest was well served by bringing this lawsuit and by the judgment obtained. The strong public interest involved the constitutionally protected right of citizens to be secure in their homes at night against the unreasonable execution of no-knock search warrants. The case focused on allegations of unreasonable conduct and the unreasonable use of deadly force by the City of Colorado Springs and the members of its police force in connection with execution of a no-knock search warrant. Vindication of the public interest in cases such as this is an important public function, and the plaintiffs' attorneys should not be penalized for having undertaken a difficult, unpopular and stress-filled case. The plaintiffs' attorneys, in addition to obtaining a substantial monetary award on behalf of their clients, bolstered the Fourth Amendment protections of personal privacy enjoyed by all in this country. Without competent and caring trial

lawyers willing to undertake highly unpopular cases such as this one, the Fourth Amendment would be mere hollow words and police agencies at all levels [*9] of government would be free to invade citizens' homes without restraint or impediment. In a free society those who enforce the law must occasionally be reminded that they too are subject to the law. It is cases like this one that provide the reminders. To reduce, to any extent, the attorneys' fees requested by the plaintiffs would reduce the fees below a realistic level considering the very high overhead expenses of conducting a law practice in a metropolitan area today. Pursuant to 42 U.S.C. § 1988, I find and conclude that the attorneys' fees requested by counsel for the plaintiffs are reasonable, necessary and fully justified by the success obtained in this litigation. In addition, further attorneys' fees in the amount of $ 1,312.50 are awarded to Kenneth H. Stern for his time and effort spent preparing for and handling the hearing on the plaintiffs' Request for Attorneys' Fees and Costs since it was contested. II. Costs and Expenses. Plaintiffs have requested costs and expenses pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988. Some of the costs have been stipulated by the defendants, but some are in dispute. 1. Depositions. Plaintiffs Jonathan Moss, Jr. and Melanie [*10] Moss seek reimbursement for deposition expenses in the amount of $ 6,264.53, and the plaintiffs Jonathan Moss, Sr. and Rever Juanita Moss seek reimbursement for deposition costs of $ 1,022.58. Citing Ramos v. Lamm, 713 F.2d 546, and other cases, the plaintiffs argue that they are entitled under 28 U.S.C. § 1920 to all deposition costs reasonably and necessarily incurred in prosecution of this case. The defendants have argued that 28 U.S.C. § 1920 limits the awarding of costs in this regard to depositions actually submitted into evidence. Expenses for depositions and copies of depositions that are reasonably necessary to prosecution of a case are recoverable under 28 U.S.C. § 1920. Ramos v. Lamm,

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713 at 560. It would be grossly unfair to decide which depositions were reasonably and necessarily obtained by applying only the cold, clear light of 20-20 hindsight. Deposition costs should be allowed if the depositions were reasonably necessary when taken, even if not later used at trial. O'Donnell v. Georgia Osteopathic Hospital, 99 FRD 578, 581 (N.D. Ga. 1983); Health-Chem Corp. v. Hyman, 523 F.Supp. 23, 27 (S.D. NY 1981); Alonso v. Union Oil of California, 71 FRD [*11] 523, 525 (S.D. NY 1976). In this case, as generally in litigation of this nature, the plaintiffs were in a precarious position, because all witnesses to the occurrence that gave rise to the claims, except the plaintiffs, were employees of the defendant City of Colorado Springs and its police department. The only way the plaintiffs could investigate their case was by deposing these witnesses. The case was fought like trench warfare with neither side surrendering an inch without a battle. Given that situation, and in light of the impossibility of interviewing critical witnesses any other way, I find that it was reasonable and necessary for the plaintiffs' attorneys to take the depositions in question. Indeed it probably would have constituted legal malpractice not to have done so. Therefore, pursuant to 28 U.S.C. § 1920, as well as 48 U.S.C. § 1988, the plaintiffs Jonathan Moss, Jr. and Melanie Moss are entitled to recover deposition expenses as costs in the amount of $ 6,264.53, and the plaintiffs Jonathan Moss, Sr. and Rever Juanita Moss are entitled to recover $ 1,422.58 as costs for depositions. 2. Expert Witness Fees. Expert witness fees may be reimbursed as part of attorneys [*12] fees under 42 U.S.C. § 1988, if they are reasonably necessary to the plaintiff's case. Ramos v. Lamm, 713 F.2d at 559. defendants stipulated to some expert witness fees and challenged others. With respect to the expert witness fees sought by Jonathan Moss, Jr. and Melanie Moss, the defendants objected to witness fees paid to Kenneth Harms in the amount of $ 11,080.00; to Dr. James Evenson in the amount of $ 4,430.00; to Lou Reiter in the amount of $ 1,100.00; and to Dr. McCulloch in the amount of $ 2,175.00. Defendants also objected to expert witness fees requested by the plaintiffs Jonathan Moss, Sr. and Rever Juanita Moss for the services of Dr. Roberts in the amount of $ 600.00.

Plaintiffs called Kenneth Harms, former Chief of Police for the City of Miami, Florida, as an expert witness on police procedures. His testimony was critical and absolutely necessary to the viability of the plaintiffs' constitutional claims against the City of Colorado Springs. He was a most credible and persuasive witness with excellent credentials. It is extremely difficult to obtain qualified police experts to testify against police officers or departments in suits like this one. Yet without such [*13] expert opinion evidence, especially as to police conduct and procedure, it is difficult or impossible to prove the truth. Here the plaintiffs had to go to Miami, Florida, to find an expert. Harms' testimony necessitated substantial preparation time including reading, reviewing, and being familiar with a plethora of materials. I find that his hourly rate of $ 100.00 was reasonable. It is clear that the jury adopted Harms' opinions as a necessary undergirding of its verdict, and therefore it is ordered, under 42 U.S.C. § 1988, that the defendants pay as costs the expert witness fees for Harms in the amount of $ 10,000.00. Lou Reiter was another expert retained by the plaintiffs to help them with discovery and preparation of their case. Reiter did not testify at the trial. The expert witness fees requested for the services of Mr. Reiter are denied. Regarding Drs. McCulloch and Evenson, I find that the testimony of each of these experts was reasonable and was necessary to the plaintiffs' case. Costs of this type are not normally absorbed by attorneys as overhead. Moreover, lawyers do not set, and they have no control over, the fees charged by medical experts. I find and conclude that [*14] the fees charged by these medical experts are consistent with those charged in the community. Moreover, I find that the amounts charged are reasonable and were necessarily paid. It is ordered that the defendants shall pay as costs $ 4,430.00 for the expert witness fees of Dr. Evenson, and $ 2,175.00 for the expert witness fees of Dr. McCulloch. The defendants have stipulated as reasonable, and I award to the plaintiffs Jonathan Moss, Sr. and Rever Juanita Moss, as costs for the services of Dr. Roberts, fees in the amount of $ 600.00. The defendants have stipulated to the following expert witness fees, and they will therefore be awarded to the plaintiffs Jonathan Moss, Jr. and Melanie Moss:

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a. Gail Gerig: b. Dr. Tom Williams: c. Dr. Klapper: d. Helen Woodard: e. Dr. Covino: $ 1,450.00 $ 900.00

$ 677.50

$ 200.00

$ 206.50.

3. Miscellaneous Expenses. The defendants have stipulated to the following

miscellaneous expenses requested by the plaintiffs Jonathan Moss, Jr. and Melanie Moss, and they will therefore be awarded as costs:

Law clerk fees: b. Photographic services for trial exhibits: c. Photocopying: d. Long distance telephone calls: e. Travel expenses: f. Miscellaneous: (postage, federal express, medical reports, etc.) g. Obtaining a plat:

$ 3,411.27

$ 594.62 $ 2,578.14

$ 717.84 $ 1,026.00

$ 645.05 $ 2.00.

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1986 U.S. Dist. LEXIS 17856, *14

[*15] IV. Stay of Execution. The defendants have requested a stay of execution pending appeal to the Tenth Circuit Court of Appeals and

the plaintiffs have expressed no opposition to this request. Therefore it is ordered that a stay of execution shall enter pending appeal. Dated at Denver, Colorado, November 10, 1986.

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********** Print Completed ********** Time of Request: Friday, May 04, 2007 Print Number: 1862:26216360 Number of Lines: 203 Number of Pages: 6 17:24:15 EST

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RICHTER, CHRIS KILLAN GUTHRO & JENSEN 225 N 5TH ST STE 1010 GRAND JUNCTION, CO 81501-2661