Free Memorandum - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

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. Pursuant to 42 U.S.C. §2000e-5(k) and 42 U.S.C. §1988, Plaintiff Monica OrtegaGuerin hereby moves this Court for an award of her attorney fees as the prevailing plaintiff in this civil rights action. This Motion is supported by the following Memorandum of Points and Authorities and attached Exhibits A through C. Respectfully submitted this 30th day of October 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff No. CIV 04-0289-PHX-MHM PLAINTIFF'S MEMORANDUM IN SUPPORT OF HER MOTION FOR AN AWARD OF ATTORNEY FEES

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MEMORANDUM OF POINTS AND AUTHORITIES Eligibility: This is an action for employment discrimination brought by Monica Ortega-Guerin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, as to defendant City of Phoenix, and the Civil Rights Act of 1871, 42 U.S.C. §1983, as to defendants Frank Favela, and Frank Peralta. Ms. Ortega-Guerin filed this action on February 9, 2004. After completing pretrial discovery, Ms. Ortega-Guerin tried her claims before a jury of her peers over the course of five-days in December of 2005. The jury rendered its verdict on December 15, 2005 in favor of Ms. Ortega-Guerin and awarded the amount of $850,000.00 in compensatory damages against defendant City of Phoenix, $350,000.00 in punitive damages against defendant Frank Favela and $25,000.00 in punitive damages against defendant Frank Peralta. A Judgment was entered by the Clerk of the Court in favor of Ms. Ortega-Guerin and against the Defendants in the amount of the verdict on December 23, 2005. Defendants filed a Motion for a New Trial, Motion for a Remittitur, and Motion to Conform the Judgment on February 6, 2006. After the Motions were fully briefed, the Court denied and granted the Motions in part on August 21, 2006. Specifically, the Court reduced the award of compensatory damages against the City of Phoenix from $850,000.00 to $300,000.00 in accordance with the damage limitations of the Civil Rights Act of 1991 and reduced the award of $350,000,00 in punitive damages against defendant Frank Favela to $35,000.00 based on an alleged clerical error in the verdict forms. Ms. Ortega-Guerin is entitled to an award of her attorney fees as the prevailing party in this civil rights action under 42 U.S.C. §2000e-5(k) and 42 U.S.C. §1988. See, e.g, Fischer v. SJB-P.D. Inc. 214 F.3d 1115, 1117-1118 (9th Cir. 2000). B. Entitlement: Pursuant to 42 U.S.C. §2000e-5(k) and 42 U.S.C. §1988, a civil rights plaintiff is entitled to an award of attorney fees if he or she is the "prevailing party" in the underlying -2-

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action. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (a prevailing civil rights plaintiff "should ordinarily recover an attorney's fee"), Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (in civil rights cases in which the plaintiff is the prevailing party, "fee awards should be the rule rather than the exception"), and Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1117-1118 (9th Cir. 2000) (same). Ms. Ortega-Guerin is the "prevailing party" in this case as a matter of law. Under the test articulated by the Supreme Court of the United States in Farrar v. Hobby, 506 U.S. 103, 111-12 (1992), "a plaintiff 'prevails' when actual relief on the merits of h[er] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." The Court further explained that "a material alteration of the legal relationship occurs [when] the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant." Id. at 113. Because Ms. Ortega-Guerin is entitled to enforce significant money judgments against all three Defendants in this action, she is unequivocally the "prevailing party" in this case. Ms. Ortega-Guerin's counsel devoted 250.75 hours to representing Ms. OrtegaGuerin in this case. Ms. Ortega-Guerin's counsel's standard hourly rate is $275.00. The total fee requested is $68,956.25 ($275.00 x 250.75 = $68,956.25). As demonstrated below, the fee requested is reasonable under the circumstances. C. 1. Reasonableness of the Requested Reward: The time and labor required of counsel. Ms. Ortega-Guerin's counsel devoted 250.75 hours to representing his client in this case. The Complaint was filed on February 9, 2005--almost three years ago. The jury rendered its verdict on December 15, 2005. Ms. Ortega-Guerin's counsel thus devoted well over two-years of work­without any compensation or even the promise of any compensation­ to representing his client in his case. The 250.75 hours devoted to the case includes all work performed in the litigation, from -3-

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preparing the Complaint which initiated this action to preparing this Fee Application, but excludes all time which Ms. Ortega-Guerin's counsel did not think reasonable to include in this Application under the circumstances. See time sheets of Stephen G. Montoya, attached hereto as Exhibit A. Moreover, Ms. Ortega-Guerin does not seek reimbursement for copying charges, fax charges, messenger service charges, or postage costs. The difficulty of the questions presented. As the Court witnessed first hand at trial, each of the three Defendants in this case vigorously contested Ms. Ortega-Guerin's claims from the onset of this case to the entry of the jury's verdict against them. Indeed, Defendants continue to contest the verdict in post-verdict Motions and by appealing the Court's Final Judgment against it. The skill requisite to perform the legal services properly. As the Court is aware, litigating federal civil rights claims on behalf of plaintiffs is very difficult because of the complexity of both the applicable legal principles and the underlying material facts. The preclusion of other employment by counsel because of the acceptance of the action. Ms. Ortega-Guerin's counsel practices at a small law firm with only two attorneys. Because of the large amount of time that was required to take this case to trial, he had to refuse to accept several other meritorious cases during the time period that this case was tried. In fact, in the days preceding the trial and during the trial itself, Ms. Ortega-Guerin's counsel could not accept any new cases and was virtually unable to work on any other case. The customary fee charged in matters of the type involved. Ms. OrtegaGuerin's counsel believes that most attorneys in Phoenix, Arizona who represent plaintiffs in federal employment discrimination claims do so either on a contingency basis.

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6. 7. 8.

Whether the fee contracted between the attorney is fixed or contingent. The fee agreement in this case was contingent. See attached Exhibit B. Any time limitations imposed by the client or the circumstances. See "4" above. The amount of money, or the value of the rights, involved, and the result obtained. Of course, the right to work in an environment free of sexual harassment is exceedingly important. Moreover, the result obtained in case was extremely significant.

9.

The experience, reputation and ability of counsel.

Ms. Ortega-Guerin's

counsel (Stephen G. Montoya) is one of the few lawyers in Phoenix, Arizona who has elected to concentrate his practice on representing individuals whose civil rights have been violated. Ms. Ortega-Guerin's counsel is a 1987 graduate of Yale Law School and has been active in civil rights litigation since 1988. Approximately oneforth of Mr. Montoya's professional activities consist of providing pro bono legal services to the poor and working poor. See Affidavit of Stephen G. Montoya, attached hereto as Exhibit C. In fact, Mr. Montoya has taken (and won) many unpopular cases that no other lawyer was willing to take. Ms. Ortega-Guerin's counsel has established several significant precedents in the area of civil rights law and has won multiple seven figure verdicts at trial in civil rights cases. See, e.g. Raytheon v. Hernandez, 540 U.S. 44 (2003), Ruiz v. Hull, 957 P.2d 441 (Ariz. 1998), and Monteiro v. Tempe Union High School District, 158 F.3d 1022 (9th Cir. 1998). 10. The "undesirability" of the case. As the Court is aware, it is extremely difficult for an federal civil rights claimant to secure legal representation. This is true because of substantial difficulty plaintiffs experience in prevailing on federal civil rights claims and the fact that the vast majority of plaintiffs simply cannot afford to pay legal counsel on an hourly basis even at a dramatically reduced -5-

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hourly rate. Based on this fact, federal civil rights cases on behalf of plaintiffs are "undesirable." See generally, Fadhl v. City and County of San Francisco, 859 F.2d 649 (9th Cir. 1988) (approving enhancement of "lodestar amount" based on fact that plaintiff's Title VII cases are undesirable as a class of claims in the relevant legal market). Awards in Similar Actions. In Riverside v. Rivera, 477 U.S. 561, 564 (1986), the Supreme Court of the United States affirmed an award of $245,456.25 in attorney's fees in a police misconduct action litigation in which the plaintiff prevailed against the city and police officers receiving only $13,300.00 in damages. Similarly, in a Ninth Circuit case involving a gender discrimination claim, the Court approved an award of attorney fees--$580,414.00--far in excess than the award sought in this case. See Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493, 504 (9th Cir. 2000). Other matters appropriate under the circumstances. Lastly, in considering this Application, the Court should be mindful of the fact that Ms. Ortega-Guerin attempted to resolve this case by means of a stipulated settlement, but Defendants refused to even attempt to negotiate a settlement in this case. Accordingly, Ms. Ortega-Guerin had no choice but to proceed to trial. Supporting Documentation: Attached hereto as Exhibit B is the underlying fee Attached hereto as Exhibit A are the time sheets that Ms. Ortega-Guerin's counsel kept throughout this litigation. agreement between Ms. Ortega-Guerin and Stephen G. Montoya. Attached hereto as Exhibit C is the Affidavit of Stephen G. Montoya. Conclusion: For the foregoing reasons, Ms. Ortega-Guerin respectfully requests the Court to award her attorney fees in the amount of $68,956.25.

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Respectfully submitted this 30th day of October 2006. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff

I hereby certify that on October 30, 2006, I electronically transmitted the foregoing 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: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants I hereby certify that on October 30, 2006, I served the foregoing document by hand-delivery to the following: 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 s/ Stephen G. Montoya

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