Free Response in Opposition to Motion - District Court of Arizona - Arizona

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GAONA LAW FIRM
A PROFESSIONAL CORPORATION

3101 NORTH CENTRAL AVE, SUITE 720 PHOENIX, ARIZONA 85012 _____________

(602) 230-2636 Fax (602) 230-1377

David F. Gaona, State Bar No. 007391 [email protected] Nicole Seder Cantelme, State Bar No. 021320 [email protected] Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

MONICA ORTEGA-GUERIN, Plaintiff, vs. CITY OF PHOENIX, FRANK FAVELA, AND FRANK PERALTA Defendants.

No. CV04-0289 PHX MHM DEFENDANTS' RESPONSE AND OPPOSITION TO PLAINTIFF'S MOTION FOR AN AWARD OF ATTORNEY'S FEES

Pursuant to LRCiv. 54.2(b)(3), Rules of Practice of the United States District Court for the District of Arizona, Defendants City of Phoenix ("City"), Frank Favela ("Favela"), and Frank Peralta ("Peralta"), (collectively "Defendants"), by and through undersigned counsel, hereby file their response and opposition to Plaintiff's Motion for an Award of Attorney's Fees. Defendants' response is supported by the attached Memorandum of Points and Authorities as well as the entire record.

Case 2:04-cv-00289-MHM

Document 112

Filed 11/13/2006

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3101 North Central Avenue ­ Suite 720 Phoenix, Arizona 85012

DATED this 13th day of November, 2006. GAONA LAW FIRM

/s/David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

MEMORANDUM OF POINTS AND AUTHORITIES I. ELIGIBILITY AND ENTITLEMENT. Defendants agree that Plaintiff is a "prevailing party" as that term is defined by relevant caselaw, see e.g., Farrar v. Hobby, 506 U.S. 103 (1992), and thus, may be entitled to a reasonable attorney's fee, see 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 1988. Despite the Plaintiff's eligibility and superficial entitlement, the following analysis serves to deny any award of attorney's fees to Plaintiff in this matter. II. UNTIMELINESS OF REQUESTED AWARD. As the Court is well aware, although the jury rendered its verdict on December 15, 2005, it was not until August 21, 2006, that this Court ruled on outstanding posttrial motions concerning the true amount of the jury award. One post-trial motion was to conform the verdict to the law on long-standing compensatory damages caps. Yet, when the City filed its motion to amend the jury verdict from $850,000.00 to $300,000.00, Plaintiff opposed that motion. In addition, Plaintiff opposed the motion filed by Defendant Frank Favela relating to what clearly was a clerical error in the initial judgment posted by the Court, awarding $350,000.00 in punitive damages, when the jury verdict, as read by the jury was $35,000.00. Plaintiff opposed that "clerical" motion as well; indeed, to this day, the Plaintiff refers to that reduction as consistent with an "alleged clerical error in the verdict forms". There is nothing "alleged" about the clerical error, the jury awarded $35,000.00 in punitive damages,
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not $350,000.00 and the error has been remedied, and the Plaintiff's continuing protestations otherwise are baseless. Pursuant to LRCiv. 54.2(b)(1), it was incumbent upon the Plaintiff, as the party seeking an award of fees, to file and serve a motion for award of fees "within fourteen (14) days of the entry of judgment in the action with respect to which the services were rendered." The rule goes on to provide that the motion need not include a memorandum of points and authorities, but must at least provide a fair estimate of the amount of attorney's fees being sought as well as applicable statutory authority for the award. In fact, Plaintiff did file a motion for award of fees on August 21, 2006, the date upon which this Court signed and filed the amended judgment. Pursuant to Ninth Circuit law, the filing at that time, following the amended judgment and disposition of the outstanding post trial motions, was timely. See Bailey v. County of Riverside, 414 F.3d 1023, 1025 (9th Cir. 2005). LRCiv. 54.2(b)(2) thereafter specifies that the

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memorandum of points and authorities in support of a motion for award of fees, together with supporting documentation required by the local rules of practice, "shall be filed and served within sixty (60) days of the entry of judgment in the action with respect to which the services were rendered." The rule is mandatory relative to the timing of the filing of the memorandum of points and authorities and supporting documentation following a motion for award of fees. In the instant matter, although the Plaintiff's motion was timely filed, as it was filed within 14 days of the amended judgment being filed, it was necessary for the Plaintiff to file her memorandum of points and authorities and supporting documentation not later than October 20, 2006, 60 days following entry of the amended judgment in this case. As the Court record adequately reflects, the Plaintiff did not file her memorandum of points and authorities and supporting documentation until October 30, 2006, 10 days late. Pursuant to LRCiv. 54.2(b)(2), the Plaintiff's motion for award of attorney's fees, being untimely, must be denied/stricken.

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III.

TIME ENTRIES. Assuming, arguendo, that the Plaintiff's belated motion is not denied despite its

untimeliness, it is well settled that the petitioning attorney bears the burden of submitting adequately documented fee applications. "Where the documentation of hours is inadequate, the District Court may reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see Jane L v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) ("To recover such fees....the Plaintiff must prove and establish [the] reasonableness of each dollar, each hour, above zero"). LRCiv. 54.2(e)(2) provides that "[i]f the time descriptions are incomplete, or if such descriptions fail to adequately describe the service rendered, the Court may reduce the award accordingly." Subsection (e)(2) also provides specific guidelines, including examples of what is or is not appropriate. For example, for telephone conferences, the rule states a time entry "must identify all participants and the reason for the telephone call." See LRCiv. 54.2(e)(2)(A). For legal research, an entry "must identify the specific legal issue researched"; "[t]ime entries simply stating `research' or `legal research' are inadequate." See LRCiv. 54.2(e)(2)(B). Finally, for preparation of pleadings and other papers, the entry "must identify the pleading, paper or other document prepared and the activities associated with its preparation." See LRCiv. 54.2(e)(2)(C). Using these guidelines as the barometer, many of Plaintiff's counsel's time entries are inadequate and should, accordingly, be reduced or disallowed. See Kunzler v. Rubin, 2001 U.S. District Lexis, 23142(d) Arizona (2001) ("After making a number of adjustments....the Court shall reduce the amount of fees claim by 30% for lack of adequate documentation"). In Plaintiff's itemized statement of attorney's fees (Plaintiff's exhibit A), there are eight pages and approximately 61 time entries. Clearly, it is not feasible for Defendant, or the Court, to address each one individually. First, Plaintiff should not be awarded fees for the time spent prior to litigation. The statutory basis for an award

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of fees has as its foundation an "action or proceeding" 42 U.S.C § 2000e-5(k). The underlying action or proceeding was the filing of the complaint in this Court, thus, pre-litigation fees are not compensable. See Hensley v. Eckerhart, 416 U.S. 424, 433 (1983) ("starting point for determining the amount of a reasonable fee is the number of hours expended on the litigation...."). For example, the first 14 time entries, including times for meetings, preparation of fee agreements, telephone conferences and matters associated with the EEOC are not compensable. Mr. Montoya's time sheet, accordingly, should be reduced by 28.25 hours, or $7,768.75. In addition to a deduction of any award for pre-litigation time, a review of Plaintiff's itemized statement of attorney's fees reveals other entries that, consistent to the Local Rules and case law, are not compensable. In particular, there are numerous entries that are "bundled" not only in terms of various "tasks" neither of which are attributed to any specific time entry, but are also bundled for a time frame, and not one specific date. It is difficult, indeed impossible, to determine the appropriateness of fees of such bundled services and that ambiguity must be taken into account in reducing the requested fee award. See, e.g., Exhibit A of Plaintiff's Memorandum in support of her motion for an award of attorney's fees, time entries dated 7/5/04, 8/21/04, 6/10/05, 11/12-16/05, 12/05/05, 1/15-25/06 and 10/16-30/06. As required by LRCiv. 54.2(e)(2), it is incumbent upon the party seeking attorney's fees to provide clear and unambiguous "task-based" entries. Finally, Plaintiff's counsel's representations in his affidavit concerning his removal of time entries that he did not believe were reasonable, or his representation of time spent representing pro bono clients, should have absolutely no bearing on the decision and necessity of adjusting the request for attorney's fees. Again, assuming, arguendo, that the Court decides to consider the application for fees despite its untimeliness, there is no evidence in the record of what tine was deleted (in other words, it is impossible to ascertain what time was deleted as the time entries, on their

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face, do not reflect deletions or adjustments made by counsel). In addition, Plaintiff's counsel's statements have no effect on this Court's independent obligation to exclude fees for "hours that are excessive, redundant or otherwise unnecessary," or those that fail to comply with local rule mandate. See Hensley, 461 U.S. at 434. IV. CONCLUSION Based on the foregoing discussion of fact and law, Defendants submit that the Plaintiff's request for attorney's fees is untimely and should be denied on its face. Assuming, arguendo, that the Court accepts the fee application for consideration irrespective of its untimeliness, the request is nonetheless excessive, not consistent with Local Rules of Practice and case law, and should be reduced. DATED this 13th day of November, 2006. GAONA LAW FIRM

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/s/ David F. Gaona David F. Gaona Nicole Seder Cantelme Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on November 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Stephen G. Montoya, Esq. Montoya Jimenez, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorneys for Plaintiff I further certify that on November 13, 2006, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

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/s/ Jennelle DeAtley

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