Free Reply to Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

RICHARD J. HARRIS LAW OFFICES, P.C .
304 MACY DR. ROSWELL, GA 30076 (770) 643-1606 (770) 643-1442 fax [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad Jacobs; husband and wife; and Jessica Funkhouser and Lindy Funkouser, husband and wife; John Does I-X; Jane Does I-X Defendants. Plaintiff Matt Shaffer hereby submits his REPLY MEMORANDUM IN SUPPORT OF MOTION
FOR ATTORNEYS FEES AND EXPENSES.

CV03 2344 PHX FJM PLAINTIFF'S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND EXPENSES

Plaintiff urges the Court to award no less than the full

lodestar fee based upon all hours requested and the rate of $290.00, or $277,335.50 (which includes additional time for this briefing on the attorney's fees issue). Additionally, Plaintiff urges the Court to award him his expenses in the amount of $10,684.11. I. INTRODUCTION Matt Shaffer won an enormous victory in a case involving a single set of operative facts which gave rise to harm which could be redress under different theories of recovery. His success was significant in light of the hours expended. Defendants do not dispute that the hours claimed were actually incurred. Defendants do not suggest that the numbers of hours are unreasonable in relation to the results obtained. Defendants do not disclose their hours to have been fewer; and Defendants do not offer any evidence that the rates requested

Case 2:03-cv-02344-FJM

Document 171

Filed 05/05/2006

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

are out of line with the prevailing rates in the market. The following amounts and hours are not contested by Defendants: 1. 2. 3. Shaffer's costs in the amount of $10,684.11. All time claimed for attorney David C. Larkin (103.2 hrs). All time claimed for attorney Robert Gregory (2 hrs) at the rate of $150.00/hr or $300.00. 4. All time claimed for paralegal Susan Larkin (18.5 hrs) at the rate of $25.00/hr. or $462.50. 5. Time spent in filing the motion and memorandum supporting Shaffer's request for fees and costs: Richard J. Harris (61.7 hrs). 6. Defendants admit Shaffer is entitled to an award based upon Harris's time on any claim related to Shaffer's claims for Defamation, Liberty Interest or False Light. Defendants opposition to Shaffer's fee request is little more than are a few scattershot arguments to reduce the lodestar fee. Defendants apparently agree Shaffer's results were excellent, and only dispute 1) the relatedness of unsuccessful claims; 2) 15.1 hours related to expert witness on economic damages; 3) 7.6 hours related to media inquiries. While Defendants pay lip service to the Hensley "relatedness" test,1 they propose the very "ratio" test (successful v. unsuccessful claims) which was expressly rejected in Hensley. Finally, Defendants falsely represent that another court recently denied a rate greater than $250/hr. when, in fact, the court found that $275/hr. was on the low end of prevailing rates. Because all claims were related; because the time spent was reasonable; and because the rate is reasonable, Shaffer urges the Court to grant no less than the full lodestar fee including those incurred in preparing this REPLY.

1

Hensley v. Eckerhart, 461 U.S. 424, 435 (U.S. 1983).

Case 2:03-cv-02344-FJM

Document 171

2 Filed 05/05/2006

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

II.

STANDARD The Court has discretion in awarding attorneys fees. In exercising that discretion, the

Court is guided by a well established two-part test for any reduction of a lodestar fee. Step one is to determine if any of the unsuccessful claims are "entirely distinct and separate from the claims upon which plaintiff prevailed." Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003)(citations omitted). Only time spent on such completely unrelated claims can be excluded from the lodestar fee. Step two is to examine the success in relation to the fees reasonably expended. Hensley, 461 U.S. at 434. Excellent results should result in a full award. All time reasonably spent in obtaining the results should be compensated at the prevailing rate for such work by comparable attorneys. (Chalmer v. City of Los Angeles, 796 F.2d 1205, 1210-1211 (9 th Cir. 1986). III. STEP ONE: RELATED CLAIMS In civil rights cases, typically all the claims will be related for purposes of awarding attorney's fees. Hensley, 461 U.S. at 435. In determining relatedness, Plaintiff joins Defendants in urging the Court to rely on Thorne v. El Segundo, 802 F.2d 1131 (9 th Cir. 1986). In Thorne, the court listed factors that show relatedness. These include: "a common core of facts;" "related legal theories;" "claims [that] seek relief for essentially the same course of conduct;" "where testimony on the successful and unsuccessful claims overlapped;" and "evidence concerning one issue was material and relevant to the other issues." Id. Defendants have failed to identify any hours spent on claims that are not related either by underlying facts, relevant law, evidence, or the damages they seek to redress. A. Fees on Related Claims Against CCEC and Connor Are Compensable

The Court instructed the jury (without objection) that Shaffer's claims arose from a single set of operative facts. Trial Transcript, p. 1296:12-15. Defendants admit that Shaffer's Defamation, False Light and Liberty Interest claims were sufficiently related to justify an award of attorney's fees on these claims. Of course this is true. However, Document 171 3 Filed 05/05/2006 Page 3 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

Defendants make no argument to support their conclusion that the other claims were not also related. Shaffer's claims were related in that each sought to make him whole for the same harm: the damage he suffered as a result of being defamed in connection with his termination. These damages include the economic harm, the reputational harm and the emotional distress he suffered. Each specific claim arose from the same set of facts; addressed overlapping legal theories; redressed the same damage; were supported by the same evidence; and were testified to by the same witnesses. Moreover, Shaffer faced overlapping defenses including immunity, privilege, at-will employment and First Amendment protection. Accordingly, all Shaffer's claims were related for purposes of his attorneys fees award. Shaffer's Wrongful Termination claims are related to the Defamation claim as well as Connor's defense to his Liberty Interest claim. One of Connor's defamatory statements was that Shaffer violated A.R.S. § 13-2311 ­ a statute upon which Shaffer's Wrongful Termination claim was also predicated. Moreover, Defendants' primary defense to the Liberty Interest claim was that Connor lawfully terminated Shaffer. (See, e.g. CONNOR'S
REPLY ON MSJ).

In making this argument, Defendants relied on a so-called "audit" which

they claimed justified Shaffer's termination. (CCEC REPLY ON MSJ p. 7:9-12). However, this same "audit" was the basis for the DPS memo in which Connor defamed Shaffer. Thus, the Wrongful Termination claims arose from the same operative facts; the testimony overlapped; the damages were overlapping; and the evidence for these claims was the same. Defendants cannot conclude that time spent on Shaffer's Wrongful Termination claim did not contribute to his success at trial (much less that the claim was unrelated). The same is true of the claim for Interference with Contractual Relations. Shaffer's claim that Connor acted improperly in terminating his employment by defaming him is mirrored in his Liberty Interest claim. Both claims are related by the common element of Connor improperly using her power to harm Shaffer. The improper conduct alleged in the Document 171 4 Filed 05/05/2006 Page 4 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

COMPLAINT

included the defamation which is undisputedly related to the Liberty Interest

claim. Defendants already attempted to argue that Intentional Interference was separate and distinct from the other claims when they moved for JMOL. (See Trial Transcript pp. 831:24 ­ 832:11). But the Court denied JMOL. To again argue that this claim is unrelated is to ignore the pleadings, the evidence and the law of the case. The First Amendment claims and defenses are inextricably intertwined with Shaffer's Defamation claim (which Defendants concede to be related for purposes of awarding attorneys' fees). Defendants wrapped themselves in the First Amendment as a defense to Shaffer's defamation claim. To counter this anticipated defense, Shaffer affirmatively pled that the First Amendment protected him. The First Amendment protects a whistleblower from any retaliation such as a supervisor defaming or terminating him or denying him his right to a name-clearing hearing. The legal theories are related and the testimony and evidence in these claims overlapped and was material to each claim. Thus, research and development of first amendment law as it applies to this case was essential to Shaffer's overall prosecution of his § 1983 Liberty Interest claim. Moreover, the damages sought under the § 1983 First Amendment claim are virtually identical to those sought under Shaffer's § 1983 Liberty Interest claim. Shaffer's Negligent Retention claim is related. The time spent on this claim is de minimus because Shaffer dismissed it early in the case. But that voluntary dismissal should not be confused with lack of merit or lack of relation to the claims upon which Shaffer prevailed. Indeed, Defendants themselves observed that one of the elements Shaffer needed to prove on this claim was that "Connor was an incompetent employee who committed a tortuous act that injured Shaffer." (CCEC MOTION FOR SUMMARY JUDGMENT p.

15:8)(emphasis supplied). It is clear from the jury's verdict that Connor did harm Shaffer through a tortuous act (defamation) and so abused the authority of her office. The CCEC retained Connor despite her defamation and thus allowed her to violate Shaffer's liberty Document 171 5 Filed 05/05/2006 Page 5 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6

interest. The 9 th Circuit has expressly held that an unsuccessful claim against a supervising defendant for allowing a subordinate to injure the plaintiff is "related" for purposes of awarding attorney's fees. See, Spell v. McDaniel, 616 F. Supp. 1069, 1083 (E.D.N.C. 1985)(Cited favorably in Thorne v. El Segundo, supra). B. Fees Related to Time Spent in Relation to Witness Jessica Funkhouser Are Compensable

Defendants apparently contest about twenty hours expended in relation to discovery 7 of Defense witness, Jessica Funkhouser. (See, Defendants' Exhibit 3). Like other witnesses 8 listed by Defendants, Ms. Funkhouser was deposed and she testified at trial. She provided 9 valuable testimony in her deposition which led to a better understanding of the relationship 10 between Connor, the CCEC and the State's Elections office. She provided valuable insight 11 into the relevant statutes, including the CCEC's governing statutes. This helped Shaffer 12 show there was no basis for Connor to believe he had committed any felony. Her testimony 13 related to Shaffer's notice of claim and the importance of reputation to remaining employed 14 in the government sector. 15 examination of this key Defense witness is ridiculous. Defendants apparently concede that 16 time spent taking depositions of other defense witnesses was proper. The time spent on 17 Jessica Funkhouser is no different. 18 Defendants ignore that Funkhouser was a key Defense witness, and instead focus 19 20 relationship between the claim against Funkhouser and other claims: i.e. the effort to remedy 21 the damage caused to Shaffer following his stigmatizing demise at the CCEC. Shaffer's 22 decision to dismiss this claim early-on does not, by itself, support the conclusion that the 23 claim is unrelated or the time spent on it was unreasonable in light of the outcome. Indeed, 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C . The single claim against Funkhouser was dismissed shortly after her deposition. As discussed at trial, it could not have been dismissed sooner because the Defendants refused to respond to Shaffer's notice of claim letter with any facts contradicting his assertions relative to Funkhouser.
2

To discount Shaffer's discovery of and preparation for

exclusively on her short-lived role as a party defendant.2 Defendants also ignore the

Case 2:03-cv-02344-FJM

Document 171

6 Filed 05/05/2006

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

Shaffer's narrowing of issues early-on militates in favor of a conclusion that Shaffer's time spent on the litigation was reasonable. Finally, Defendants ignore the law. A plaintiff may recover attorney's fees on unsuccessful claims asserted against another defendant if such unsuccessful claims are related. Spell v. McDaniel, supra at 1083. Given Ms. Funkhouser's role as a key defense witness who testified on several claims and given the relatedness of the claim against her, Shaffer was reasonable in spending time preparing for her deposition and investigating the facts surrounding her involvement in this matter. A full award of attorney's fees should be granted. C. Lack of Specificity to Billing

Defendants identify only about 10% of Plaintiff's attorney's time which they claim lacks specificity but then ask for a 50% reduction of all Plaintiff's attorneys' time. However, given the relatedness of the claims, the time entries are sufficiently specific to evaluate reasonableness. Moreover, there is no dispute that the time entries cited are reasonable. Finally, there is no legal basis for applying the 50% reduction requested. It is significant that Defendants do not criticize the reasonableness of the time spent. Defendants' failure to criticize the reasonableness of time spent renders moot any argument for lack of specificity. The purpose of specificity is "so the reasonableness of the charge can be evaluated." Local Rule 54.2.3 Because Defendants do not dispute the reasonableness of the charges, there is no reason to criticize the specificity of the time record. Nor is there any reason to reduce the fee award. Much of the time identified was time spent responding to Colleen Connor's MOTION
FOR SUMMARY JUDGMENT SUMMARY JUDGMENT

in January 2005 (59 hours), and to the CCEC'S MOTION FOR

in May 2005 (16 hours). The issues in these motions were all related

This is the same objective of step two of the Hensley test. Accordingly, having passed step two, there is no need to address Defendants' argument of specificity.

3

Case 2:03-cv-02344-FJM

Document 171

7 Filed 05/05/2006

Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

to the claims upon which Shaffer prevailed. As demonstrated above, the interrelation of the claims would make it impossible to parse out the work being done.4 Shaffer's case seems to be what the Court described in Hensley, where: Much of counsel's time [was] devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. Id. Defendants cannot dispute that the hours spent in responding to Defendants' summary judgment motions were reasonable. Defendants do not suggest that they spent less time on summary judgment than did Plaintiff. Finally Defendants criticize the specificity of 32.9 hours in pre-trial preparation (much of which was work performed together with Defense counsel5 ). However, Defendants edited out some of the detail that places the criticized entries in context. Defendants left out the following detail for that 8/25/2005: "Continue working on joint pretrial papers and voir-dire, jury instructions and motion in limine." Surely Defendants cannot criticize the specificity of the time spent on that date. Nor can Defendants criticize the specificity of time spent on those same pretrial motions when they were filed with the court (see, time record for 8/26/2005). Also filed that day was the Joint Stipulated Form of Verdict (prepared with Defense counsel). The time entries contain enough specificity to determine whether the time spent was reasonable or not. Indeed this is evident in the fact that Defendants do not challenge the reasonableness of the time spent.

For examples: Defendant CCEC's motion incorporated by reference the statement of facts from the Colleen Connor M O TIO N FO R SU M M ARY JU D GM EN T . CCEC Motion p. 2:2-3; CCEC's defense to 1983 liability emphasized Shaffer's at-will employment (thus overlapping his employment claims); Shaffer's research into A.R.S. § 13-2311 for his wrongful discharge claim overlapped his defamation claim (where he was accused of violating this statute); CCEC 'S M O TIO N FO R SU M M ARY JU D GM ENT incorporated Connor's M O TIO N FO R SU M M ARY JU D GM ENT on defamation. Interestingly, Defendants have not provide their attorneys' records to demonstrate that time working together with the undersigned was spent on some unrelated claim.
5

4

Case 2:03-cv-02344-FJM

Document 171

8 Filed 05/05/2006

Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

D.

Time Spent Related to Media Contact Is Compensable

Defendants identify 7.6 hours spent in relation to media inquiries or reviewing news publications related to the case. In fact, much more time was spent with the media (learning the underlying facts; preparing Shaffer's theories of liability to answer media inquiries; searching and collecting news articles for evidence of Connor's defamatory and stigmatizing statements about Shaffer; evaluating reporters as potential witnesses; and setting the record straight in an effort to mitigate Shaffer's damages). However, to avoid this very dispute, Shaffer reduced his fee request by almost half to only 7.6 hours of media related work. Defendants make the straw-man argument that time spent in attempts to publicize this case are not compensable. However, the time spent related to the media were not to publicize the case. This is a case where the media republished Connor's defamation; where reporters were potential witnesses; where media articles were introduced into evidence; and where Shaffer's damages are directly related to the media access to his personnel file. Gathering and evaluating media evidence and witnesses were part of discovery. Moreover, much of the time preparing to discuss the case with the media happened very early in the representation and was the same time that would have been spent at the outset of a non-media case in learning the background facts and identifying legal issues. (See, e.g. time entries for 9/4/02, 10/1/02, 10/3/02). The interaction with the media related directly to the successful achievement of Shaffer's litigation goals (including exposing Connor's defamation and clearing Shaffer's name). Even if some time were spent in publicizing the case, (which it was not), it would still be compensable. Responding to media interest in a case is a normal function of an attorney in a matter of public interest. Other courts have recognized that "exceptional cases will arise from time to time involving issues of such vital public concern that lawyers will find it necessary to spend time responding to reporters' questions. In those situations, a district court will have discretion to award attorney's fees for time reasonably spent communicating with Document 171 9 Filed 05/05/2006 Page 9 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

the news media." Child v. Spillane, 866 F.2d 691, 697 (4th Cir. 1989); see, also Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992)(vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993)(successful plaintiffs received attorneys' fee awards that included fees for media activity). Accordingly, Shaffer's reduced fees for media involvement should be awarded in full. E. Time Spent Developing Expert Witness Evidence is Compensable

In a footnote, Defendants make the frivolous argument that 15.1 hours of attorney time spent with expert witness, Larry Stokes, PhD should be disallowed because his testimony was related only to Wrongful Termination. This is frivolous because it is not based on law or fact. Defendants ignore the law of the case: Shaffer is entitled to damages resulting from the foreclosure of his ability to garner future employment. (Doc. 155, ORDER p. 6:28 ­ 7:10). The court forewarned against the very argument Defendants assert when it held: "Therefore the fact that the jury found that Shaffer was justifiably dismissed is irrelevant to the damages analysis under the liberty interest claim." (Doc. 155, ORDER p. 7:24, emphasis supplied). Shaffer's economic damages do not relate solely to his termination, but also to the Defamation and Liberty Interest claims. Moreover, Defendants ignore the role Dr. Stokes played in establishing a factual basis for economic harm to Shaffer. The court recognized this in holding that "Shaffer produced substantial evidence from which a jury could conclude, without mere speculation, that the defamatory statement alone caused Shaffer substantial economic, reputation, and emotional harm." (Doc. 155 ORDER p. 5:6-8)(emphasis supplied). Dr. Stokes' report and testimony quantified the economic harm of moving from his government employment track to a lower salary in the private sector. Indeed, when the Court concluded that Shaffer had produced substantial evidence of economic harm it expressly referenced Stokes' testimony that "[t]he economic harm from taking a lower-paying job was $441,646, and could be substantially higher." (Doc 155, ORDER pp. 4 - 5). Moreover, Dr. Stokes contrasted the value of Document 171 10 Filed 05/05/2006 Page 10 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6 7 8 9 10

Government employment relative to the private sector; established a work-life expectancy for Shaffer; and he explained the process of discounting future damages to present value. Any of these factors could have assisted the jury in determining the economic damages component of Shaffer's Liberty Interest or related Defamation claim. The fees incurred in meeting with Dr. Stokes are compensable. Moreover, the overlap between the economic damages from Wrongful Termination, Defamation and § 1983 claims support the conclusion that there is substantial relation between the Liberty Interest claim and the other claims in the case. IV. STEP TWO: REASONABLENESS OF TOTAL FEES IN LIGHT OF RESULTS OBTAINED After determining that none of the unsuccessful claims are completely separate and

11 distinct, the Court can turn to the second part of the Hensley test: whether the results justify 12 the fees. "Where a plaintiff has obtained excellent results, his attorney should recover a fully 13 compensatory fee." Hensley, 461 U.S. at 435. "A plaintiff may obtain excellent results 14 without receiving all the relief requested." Id. at 435 n.11. 15 Defendants do not attempt even to suggest that the results Shaffer obtained were 16 anything short of excellent. Both the jury verdict for $1.1 Million and the remitted award of 17 $660,000 demonstrate a huge success above and beyond the $264,000.00 for which Shaffer 18 agreed to settle in his notice of claim letter. These results are exceptional in comparison to 19 the district court cases Defendants site, Fiolek v. Tucson Unified School Dist. and Doe v. 20 Cargol et al. (Defendants' Exhibits 4 and 5). In Fiolek the court based the lodestar fee on 21 about 2067 hours spent to obtain a judgment of $50,220.00 (a ratio of about $24.00 in 22 recovery for every hour spent). In Cargol the court based the lodestar fee on about 600 hours 23 spent to obtain a $101,500.00 settlement (a ratio of about $170.00 in recovery per hour 24 spent). In sharp contrast, Shaffer's ratio is well over $800.00 in recovery per hour spent. No 25 wonder Defendants do not dispute that the relief obtained justified the time spent. 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

Case 2:03-cv-02344-FJM

Document 171

11 Filed 05/05/2006

Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

Rather than address the reasonableness of time spent in obtaining the results, Defendants propose a step-two reduction of fees based on the mathematical ratio of successful claims to unsuccessful claims. This is an argument which was specifically rejected by the Supreme Court in Hensley. We agree with the District Court's rejection of `a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.' Record 220. Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors. Nor is it necessarily significant that a prevailing plaintiff did not receive all the relief requested. For example, a plaintiff who failed to recover damages but obtained injunctive relief, or vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time. Hensley, 461 U.S. at 435 n.11. Having themselves cited Hensley, it is shocking that Defendants would make such an argument that obviously has no basis in the law. As a matter of law, there is no authority to justify the 50% reduction that Defendants request. Defendants cite two irrelevant cases to support the premise that the lodestar fee can be reduced. The first is Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994), a civil rights case in which the plaintiff requested $5 Million in damages but was awarded only $25,000.00 against a few of the defendants. The court properly reduced the lodestar to reflect the plaintiff's limited success. The second case is Fiolek v. Tucson Unified School Dist., CV-01TUC-DCB. In Fiolek, the disrict court reduced the lodestar, finding that the plaintiff's attorneys overworked the case with too many lawyers doing the same work. Even so, the court awarded $255,148.00 on only $50,220.00 in damages. Since Shaffer offered to settle for only $264,000.00 in his notice of claim letter, his $660,000.00 success at trial was remarkable. Defendants have completely failed to produce any precedent reducing the lodestar where the results were as good as Shaffer's. On the contrary all of the factors militate in favor of applying a multiplier to the lodestar to increase the fee award. V. REASONABLENESS OF THE RATE Without any authority or evidence, Defendants suggest that $250.00 is the propoer Document 171 12 Filed 05/05/2006 Page 12 of 15

Case 2:03-cv-02344-FJM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

hourly rate. However, Defendants offer no affidavit that $250.00 is the prevailing rate for similar work. Defendants do not disclose their hourly rate for this work, nor the hourly rates of any other firms in the Phoenix area practicing constitutional employment law. Instead, they use a number from a retainer agreement which is, itself, years old.6 Defendants do not dispute the experience, reputation or ability of Plaintiff's counsel nor the level of skill required to perform the work in this case. Moreover, Defendants do not dispute that the affidavits filed by Plaintiff establish the prevailing rates in the market to go much higher than the $290 Plaintiff's request. To support their desperate argument for a lower rate, Defendants cite to the recent decision in Doe v. Cargol in which plaintiff's counsel requested $275.00 per hour as a lodestar rate on a case that settled before trial. Defendants falsely represent to the court that in Cargol, Judge McNamee awarded only $250 per hour. Not true. in fact the court granted the full $275 rate requested finding that "rates requested by Plaintiff's counsel are on the low end of the market rate." (Defendants' Exhibit 5, p. 7:3-5). Consistent with Shaffer's request, the court in Cargol found the range of rates presented to it was between $250 and $400 per hour for employment lawyers in Phoenix. Based on the evidence before the Court on this motion, the $290.00 rate requested is also "on the low end." Defendants also urge the Court to limit Shaffer's rate to the straight hourly fee stated in Shaffer's retainer agreement signed over two years ago. Again, Defendants make an argument which was rejected in the case on which they rely. In Cargol the district court recognized that a published straight hourly rate is irrelevant in a contingency fee situation. Shaffer's contingency fee is 40%.7 Indeed, if anything, the lodestar should be increased so

Presently Plaintiff's counsel bills at $400.00 per hour on federal employment claims on which he has worked since the Shaffer trial. See attached Declaration. Based on the hours incurred up to this filing, the contract rate is equivalent to almost $400.00 per hour ­ the amount of the award ($660,000) plus the lodestar to date ($264,865.50) times 40%, or $369,946.20, divided by
7

6

Case 2:03-cv-02344-FJM

Document 171

13 Filed 05/05/2006

Page 13 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

that after paying the attorney's fees of 40%, Shaffer will still recover the full $660,000.00 which the Court awarded him to make him whole. In order to ensure Shaffer receives the full amount of his award, the attorneys fee award would have to be $440,000.00.8 VI. FEES FOR FILING FEES REQUEST Defendants do not dispute the reasonableness of the 61.7 hours spent prior to this brief. Nor do Defendants offer any authority preventing Shaffer from recovering the fees incurred in reviewing their response or in researching and drafting this reply. Thus even if the Court were inclined to exercise its discretion against a full award of attorneys fees, there is no basis in Defendants' responsive brief to support a reduction of fees based on time spent in the request for fees. Plaintiff has spent an additional 43 hours in preparing this reply brief and should be compensated fully for the same. This amounts to an additional $12,470.00 in fees. VII. COSTS Finally, there is no dispute that Shaffer is entitled to an award of non taxable costs or expenses in the amount of $10,684.11. VIII. CONCLUSION Wherefore, for the foregoing reasons, Shaffer urges the Court to enter an award of attorney's fees in an amount no less that the full lodestar fee of $277,335.50 and an award of costs in the amount of $10,684.11. /// /// /// ///

the hours in the case (931.2) equals $397.00. That is the more relevant contract rate.
8

(440,000.00 + 660,000.00) x 40% = $440,000.00, leaving $660,000.00 for Shaffer.

Case 2:03-cv-02344-FJM

Document 171

14 Filed 05/05/2006

Page 14 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
R ICH ARD J. H ARRIS L AW O FFICES , P .C .

SUBMITTED this May 5, 2006. R ICHARD J. H ARRIS L AW O FFICES, P.C. By: s/Richard J. Harris Richard J. Harris 304 Macy Dr. Roswell, GA 30076 Copy of the foregoing electronically transmitted via the U.S. District Court's Electronic Case Filing System this January 25, 2006 and to: Jay A. Zweig Mark A. Fuller Michelle R. Matheson Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants

s/Richard J. Harris

Shaffer\Pleadings\Post Trial\Attorneys Fees\Reply on Motion for Attorneys Fees and Expenses

Case 2:03-cv-02344-FJM

Document 171

15 Filed 05/05/2006

Page 15 of 15