Free Memorandum - District Court of Arizona - Arizona

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Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. Suite 800 2901 North Central Avenue Phoenix, Arizona 85012 602-263-1700 Attorneys for Defendants

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Upon further review of all timesheets by counsel undersigned, fees sought have been reduced from the figure set forth in the previously filed motion. Counsel made every effort to not include any time expended for defending claims based on state law and sought to include only time expended for defending the federal claims asserted. Case 2:03-cv-02306-JAT Document 99 Filed 08/18/2006 Page 1 of 5
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Kenneth Lyon & Towanda Lyon, for Taralyn D. Lyon, v. Estrella Foothills High School Henry Schmidt, Superintendent of Schools for Estrella Foothills School, Eric Godfrey, Jerry Nunez, Marty Arambel, Phillip Echeverria, Jeannie Guy, Jerry Kerr, and Gary Mayfield, Defendants.

NO. CIV 03-2306-PHX-JAT

MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES

Defendants Henry Schmidt, Eric Godfrey, Jerry Nunez, M arty Arambel, Phillip Echeverria, Jeannie Guy, Jerry Kerr and Gary Mayfield, pursuant to Local Rule 54.2(c) submit this M emorandum in Support of their Motion for Attorneys Fees. The amount of attorneys fees sought, including computerized legal research time, is $39,053.00.1 Attached hereto as Exhibit "1" is the "Statement of Consultation"

required by Local Rule 54.2(d)(1).

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I.

ELIGIBILITY FOR ATTORNEYS FEES: The District is eligible for attorneys fees by virtue of 42 U.S.C. § 1988. Under

42 U.S.C. § 1988, attorneys fees are awardable in an action brought under § 1983 if the action was unreasonable, frivolous, meritless or vexatious. Francheschi v. Schwartz, 57 F.3d 828 (9 th Cir. 1995). The action need not be brought with subjective bad faith. Thomas v. Bible, 983 F.2d 152, 153 (9 th Cir. 1993). Rather, it is enough that a party should have known the lawsuit was baseless or unreasonable. Id. Plaintiff asserted a variety of claims against the District. All of her state law claims were dismissed as well as a portion of her § 1983 claim (lack of due process). (On August 30, 2005 the Court granted summary judgment on those counts. That left one remaining count to be tried ­ a § 1983 claim asserting that Plaintiff was denied equal protection under the law.) On June 23, 2006 this Court granted the Defendants Rule 50 Motion on the equal protection claim. Counsel undersigned has further refined the request for attorneys fees by eliminating from the Court's consideration any time spent seeking dismissal of the state law claims. As a result, the attorneys' fees requested have been reduced from that initially requested in their Motion. Defendants are seeking to obtain fees only for the time directly related to the constitutional claims asserted by Plaintiff. The attached statement of fees, therefore, includes all time spent on this matter with exception of any time spent specifically related to state law claims. II. ENTITLEMENT TO ATTORNEYS FEES. Applying the standard described above, the Defendants are entitled to fees because the § 1983 claims were unreasonable, meritless and w ithout foundation. (Attached as Exhibit "2" is a copy of the Court's comments made in granting Defendants' Rule 50 M otion. The Court noted "Certainly this is a meritless case". Page 9.) 2 Case 2:03-cv-02306-JAT Document 99 Filed 08/18/2006 Page 2 of 5

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But I am concerned about the effect of a lawsuit like this, to drag into the litigation process in the courtroom, particularly, unpaid public servants such as school board members who must enough complexities and stresses in serving selflessly in that role and to be drug through the litigation process including a trial with the concerns of what the outcome might be. When it is a meritless case that does that, I think that's a travesty. (Pg. 10) The Court is familiar with the issues presented by Plaintiff. Indeed, the Court noted all of the infirmities of Plaintiff's case in its ruling on Defendants' Rule 50 Motion. The Defendants are entitled to reimbursement for their attorneys fees in defending against Plaintiff's baseless allegations. Counsel undersigned recognized early that Plaintiff would be unlikely to survive a Rule 50 Motion and further recognized that the costs to the individual Defendants would likely exceed any award, should a jury find in favor of Plaintiff. To that end, counsel undersigned offered a very modest sum in settlement prior to the depositions of all individuals being scheduled. The purpose was to save fees and costs for both parties. That was summarily rejected by Plaintiff. (See Exhibit "3" attached.) Later, after the depositions were taken it became even more clear that Plaintiff would not survive a Rule 50 Motion and Defendants offered Plaintiff the opportunity to dismiss with each side to bear all costs and fees. (See Exhibit "4" attached.) That offer, too, was summarily rejected. III. REASONABLENESS OF FEES REQUESTED. Attached hereto as Exhibit "5" is an Affidavit of Georgia A. Staton which establishes the reasonableness of the fees requested. Exhibit "6" is an itemized statement of fees and charges which the Defendants seek to recover. Time entries pertaining to defending state based claims only have been eliminated as well as time

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spent on collateral matters that were billed to this case but which cannot fairly be charged to Plaintiff arising out this federal lawsuit.2 The firm has a standard hourly fee arrangement with the Arizona School Risk Retention Trust to defend school districts and its employees acting with the course and scope of their employment. Different billing rates applied throughout the years ranging from $135/hour to $175/hour depending upon the experience of the attorney performing the legal work, the type of work performed and/or the year in which the work was performed. Paralegal rates range between $75 and $90 per hour, again, depending upon the year in which the work was performed. These rates are very inexpensive for defending constitutional cases such as this. In the Phoenix area it is common to see lawyers of similar experience billing at rates well in excess of $200/hour. Exhibit "6" contains Westlaw charges showing the charges incurred for legal research on this matter which the Defendants seek to recover. Computerized legal research charges are recoverable as attorneys fees because they make legal research more efficient, thereby reducing the amount of lawyer time needed. See Harmon v. Lyphomed, Inc., 945 F.2d 969, 976 (7 th Cir. 1991); Ahwatukee Custom States Management Association, Inc. v. Bach, 193 Ariz. 401, 403-04, 973 P.2d 106, 108-09 (1999). The total amount of Westlaw charges sought is $ 2,441.47. IV. CONCLUSION. For the foregoing reasons, Defendants respectfully request that the Court award it the requested attorneys fees herein pursuant to 42 U.S.C. § 1988. As the Court may recall, Plaintiff appealed her suspension by special action to the Maricopa County Superior Court and, thereafter, to the Arizona Court of Appeals. Counsel undersigned has eliminated from its request for attorneys fees time spent on those matters even though they had a direct bearing on the ultimate outcome of this case. 4 Case 2:03-cv-02306-JAT Document 99 Filed 08/18/2006 Page 4 of 5
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DATED this 18th day of August, 2006. JONES, SKELTON & HOCHULI, P.L.C. By s/Georgia A. Staton Georgia A. Staton 2901 North Central Ave., Ste. 800 Phoenix, Arizona 85012 Attorneys for Defendants

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ORIGINAL of the foregoing e-filed with the Court and copies mailed this 18 th day of August, 2006 to: Hon. James A. Teilborg United States District Court Sandra Day O'Connor U.S. Courthouse Suite 523 401 West Washington Street, SPC 51 Phoenix, AZ 85003-2154 Joseph E. Collins, Esq. 10801 North 32nd Street, Suite 3 Phoenix, Arizona 85028 Attorney for Plaintiff s/Gwen Coon

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Case 2:03-cv-02306-JAT