Free Reply to Response to Motion - 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 Craig Tucker, plaintiff, vs. The City of Tempe, defendant. Plaintiff submits the following Memorandum of Points and Authorities as his Reply in support of his Motion for an Award of Attorney Fees and asks the Court to grant his Motion because he is the prevailing party in this dispute and his requested fee is reasonable. Respectfully submitted this 29th day of June 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 03-1425-PHX-DGC Plaintiff's Reply in Support of His Motion for an Award of Attorneys Fees

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MEMORANDUM OF POINTS AND AUTHORITIES The City of Tempe's Response to Mr. Tucker's request for an award of attorney fees consists of a series of assertions that are unsupported by the record in this dispute. For example--although the City claims that Mr. Tucker's fee request is unreasonable-the City does not dispute the reasonableness of Mr. Tucker's legal counsel's hourly billing rate of $275.00. Similarly--although the City claims that Mr. Tucker's counsel spent too much time on the case--the City's Response fails to specify a single time-entry in Mr. Tucker's legal counsel's billing statements that was unnecessary, excessive, or otherwise unreasonable. Moreover­although the reasonableness of Mr. Tucker's requested fee is a factually intensive issue requiring extensive professional experience to evaluate­the City of Tempe's Response fails to include an affidavit from an attorney with experience in litigating civil rights cases in federal court attesting to the unreasonableness of the requested fee. Notwithstanding the City's unsupported assertions, as demonstrated in detail below, the fee requested by Mr. Tucker is modest and is in fact more than reasonable under the circumstances. Each of the City's various contentions will be addressed in turn below. 1. Mr. Tucker's requested fee award is reasonable. The City first contends that because Mr. Tucker did not prevail on all of his three claims against the City--disability discrimination, retaliation, and due process--his attorney fees should be correspondingly reduced. This contention is invalid for several reasons. First, the bulk of testimony at trial regarded Mr. Tucker's claim under the Americans with Disabilities Act. Indeed, the testimony of virtually all of the witnesses at trial primarily focused on whether or not Mr. Tucker had either a perceived or actual mental disability that disqualified him from performing his duties as a law enforcement officer at the City of Tempe. Specifically, Dr. Steven Carson, Dr. Robert Bevan, Dr. Sarah Hallett, Dr. Charlene -2-

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Tracy, and Dr. Leigh Sorokin all testified at length regarding Mr. Tucker's perceived or actual mental disability and his mental health in general. In fact, each of the eleven witnesses to testify at trial testified extensively regarding this issue.1 Correspondingly, a very small percentage of time at trial was devoted to Mr. Tucker's retaliation and due process claims, and no witness testified exclusively regarding those claims. Moreover, the facts surrounding the City's termination of Mr. Tucker's employment and Mr. Tucker's efforts to retain his position at the City of Tempe provided the jury with essential background information to Mr. Tucker's ADA claims. Even if Mr. Tucker would not have asserted claims for retaliation and the violation of his due process rights, counsel for each party would have informed the jury of the specific circumstances surrounding Mr. Tucker's termination and Mr. Tucker's efforts to save his job at the City. Accordingly, because (1) the vast majority of Mr. Tucker's trial evidence was adduced in support of his ADA claim, and (2) the facts supporting his retaliation and due process claims provided factual background to his ADA claim, Mr. Tucker should be awarded the entirety of the fees he incurred in taking this case to trial. See, e.g., Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-1053 (9th Cir. 1991), and Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 517-518 (9th Cir. 2000). The City of Tempe also correctly advises the Court that Mr. Tucker has a pending administrative claim with the Public Safety Retirement Board ("PSRB"). However­without any supporting evidence­the City then asserts that some of the work that Mr. Tucker did in this case is related to claims that Mr. Tucker will ultimately present to the Board. In addition to not being supported by any evidence of record, this assertion is inaccurate. In fact, the

The following individuals testified at trial: Craig Tucker, Charlene Tracy, D.O., Leigh Sorokin, M.D., Assistant Chief Jay Spradling, Valerie Hernandez, Sgt. Sharon Gage, Officer William Weis, Sgt. Dick Steely, Officer Rick Eccles, Stephen Carson, Ph.D, Robert Bevan, M. D., and Sarah Hallett, Ph.D.

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legal issues that will be presented to the Board are separated and distinct from the issues that were tried before this Court. This conclusion is underscored by the fact that the City has failed to identify any services rendered in reference to Mr. Tucker's PSRB claim that are duplicative of the services already rendered in this case. 2. Novelty The City claims that Mr. Tucker's ADA claims were not novel. This assertion is inaccurate. As the Court recalls, five doctors presented conflicting testimony regarding Mr. Tucker's fitness for duty as a law enforcement officer in face of claims that Mr. Tucker was a danger to the public, a danger to his colleagues, a danger to himself, or a danger to no one. The inherent complexity of these issues was exacerbated by the fact that Mr. Tucker was employed as a law enforcement officer and consequently questions of his mental fitness for duty took on a greater significance then they would have if he had been employed in a profession not authorized to carry and use firearms. 3. Skills Although the City of Tempe trivializes the difficulties that Mr. Tucker encountered in prevailing at trial on his ADA claim--as the Court is aware--cross-examining one psychiatrist and two psychologists at trial regarding areas within their particular professional expertise is (to say the least) not easy. Moreover, the ADA is clearly the most complex civil rights statute in American law. Successfully litigating ADA claims to verdict is a complex and challenging endeavor-especially on behalf of plaintiffs. 4. Preclusion of other employment Immediately proceeding and during the trial of this matter, Mr. Tucker's counsel could not work on his other pending cases and certainly could not consider taking any new cases. As a member of a law firm consisting of only two lawyers, taking this matter to trial certainly did preclude Mr. Tucker's legal counsel from earning a livelihood by means of his other cases during the trial of this dispute. -4-

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5.

Customary Fee

The City's Response to Mr. Tucker's fee request also suggests that the fact that Mr. Tucker had a contingency fee agreement with his counsel means that Mr. Tucker's counsel should only be awarded one-third of Mr. Tucker's recovery,$28,333.00 or (at most) $29,000.00. See Defendant's Response, p. 4, lines 21-26. However, the Ninth Circuit has rejected the City's contention in this regard. As the Ninth Circuit noted in Vangerwen v. Guarantee Mutual Life Company, 1214 F.3d 1041, 1048 (9th Cir. 2000), "a district court may not rely on a contingency fee agreement to increase or decrease what it determines to be a reasonable attorney's fee." 5. Amount of Recovery The City of Tempe acknowledges that the verdict of $85,000 in favor of Mr. Tucker is not a trivial amount. See Defendant's Response to Plaintiff's Motion for Attorney Fees, p. 5, line 10. Correspondingly, while the amount of the fee Mr. Tucker is requesting ($51,232.50) is also not a trivial amount, it is also not a fortune. Although the City is correct in noting that Mr. Tucker's recovery was limited, the fee that he is requesting is correspondingly limited. In fact, Mr. Tucker's legal counsel believes that the number of civil cases that proceed to trial in federal court in which the fee is less than the amount requested in this case is de minimis. Lastly, the amount of money that Mr. Tucker recovered at trial is not the sole measure of his success. As the Supreme Court of the United States concluded in Riverside v. Rivera, 477 U.S. 561, 574 (1986), [W]e reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefitting only the individual plaintiffs whose rights were violated. Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms. And, Congress has determined that "the public as a whole has an interest in the vindication of the rights conferred by the statutes enumerated in § 1988, over and above the value of a civil rights remedy to a particular plaintiff . . . . " Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social -5-

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benefits that are not reflected in nominal or relatively small damages awards. In accordance with this ruling, the Ninth Circuit has concluded that: Even in cases seeking only monetary relief, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damage awards. Therefore, it is inappropriate for a district court to reduce a fee award below the lodestar simply because the damages obtained are small. Permitting such reductions would create an incentive to bring only those civil-rights cases that would produce large damage awards. This incentive conflicts with the purposes of [S]ection 1988. Quesada v. Thomason, 850 F.2d 537, 540 (9th Cir. 1988) (emphasis added). at trial was more than nominal. 5. Undesirability of the case There is no doubt that ADA cases on behalf of plaintiffs are undesirable. As noted in Mr. Tucker's Memorandum of Points and Authorities in Support of his Motion for an Award of Attorney Fees, the vast majority (94%) of ADA cases are resolved in favor of the defendant at the trial court. See Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L.L.Rev. 99 (1999). Based on the difficulty of prevailing on behalf of plaintiffs in ADA cases, plaintiff's lawyers are extremely reluctant to take them. Mr. Tucker's case was especially undesirable based upon the fact that he was a police officer whom three healthcare professionals had already opined (in writing) was mentally unfit for duty. 7. Other factors The City also claims that it was improper for Mr. Tucker to note the fact that although the Tempe City Attorney's Office recommended the Tempe City Council to settle this case for specific amount, not only did the City reject its attorney's recommendation, the City also refused to submit any counter-offer whatsoever to Mr. Tucker. Federal Rule of Evidence 408 prohibits the introduction of evidence at trial of offers -6This conclusion is especially applicable in this case based on the fact that Mr. Tucker's success

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of settlement "to prove liability for or invalidity of the claim or its amount." In this case, Mr. Tucker is not using settlement negotiations to establish the City's liability under the ADA at trial. Instead, Mr. Tucker is using the City's refusal to settle Mr. Tucker's claims as one factor (out of many) to consider post-verdict in determining the reasonableness of the attorney fees that the City forced Mr. Tucker to incur in proceeding to trial. In short, Rule 408 is inapplicable to Mr. Tucker's Motion for an Award of Attorney's Fees. Lastly, in considering Mr. Tucker's fee request, the Court should be mindful of the years that his legal counsel has been waiting to be paid on this case. As the Supreme Court of the United States noted in Missouri v. Jenkins, 491 U.S. 274, 283-284 (1989), : Clearly, compensation received several years after the services were rendered--as it frequently is in complex civil rights litigation-is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment . . . is [proper]. Although the City's objections to Mr. Tucker's fee request ignore this principle, this Court should take it into careful consideration when deciding Mr. Tucker's fee request. Conclusion The statutory right to be free from discrimination in the workplace based on perceived or actual disabilities is meaningless if the right is not enforced. The government of the United States embraced this principle when it authorized the factual courts to award attorney fees to individuals successfully asserting their rights under the ADA. The City has not challenged either the reasonableness of Mr. Tucker's counsel's hourly rate or the reasonableness of any given service reflected in Mr. Tucker's counsel's hourly time-sheets. Nor has the City adduced an affidavit from an attorney experienced in litigating ADA cases (or similar claims) in federal court attesting to the unreasonableness of Mr. Tucker's -7-

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requested fee. Accordingly, under the circumstances, this Court should exercise its discretion to grant Mr. Tucker's request for attorney's fees in full. Respectfully submitted this 29th day of June 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 June 29, 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: Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Tempe City Attorney's Office P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants I hereby certify that on June 30, 2006, I served the foregoing document by hand-delivery to the following: The Honorable David G. Campbell 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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