Free Memorandum - District Court of Arizona - Arizona

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

TEMPE CITY ATTORNEY'S OFFICE MARLENE A. PONTRELLI, #016980 JANIS L. BLADINE, #018244 KARA L. STANEK, #020161 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Phone: (480) 350-8227 Fax: (480) 350-8645 Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CRAIG TUCKER, No. CV 03-1425 PHX DGC Plaintiff, v. THE CITY OF TEMPE, Defendant. DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

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Defendant City of Tempe (the "City") objects to the awarding of attorney's fees in this case on the grounds that the award of such fees is discretionary with the Court, the fees requested are disproportionate to the degree of success obtained, and hours spent included work on the same issues pending before other administrative agencies that are not subject to an award of attorney's fees. Moreover, should the Court exercise its discretion in this case in awarding fees, the City suggests that award should not be in excess of $29,000. I. PLAINTIFF'S ENTITLEMENT DISCRETIONARY. TO ATTORNEY'S FEE IS

The granting of attorney's fees to Plaintiff is not absolute, but rather is within this Court's discretion. Prevailing plaintiffs in claims brought under the Americans with Disabilities Act (the "ADA") may be awarded their attorney's fees under 42 U.S.C. § 12205. That section provides in pertinent part, that:

Case 2:03-cv-01425-DGC

Document 70

Filed 06/12/2006

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

In any action...commenced pursuant to this chapter, the court...in its discretion, may allow the prevailing party....a reasonable attorney's fee.... Thus, while a court may award attorney's fees, there is not an obligation to grant fees. In this case, the City submits that attorney's fees should not be awarded or, in the alternative, should the Court exercise its discretion to award fees, such fees should be no more than one-third of the recovery obtained by the Plaintiff at trial. II. THE AWARD REQUESTED IS NOT REASONABLE. The Plaintiff identifies a number of reasons why this Court should exercise its discretion. None of the reasons, given the work performed and results obtained, justify the amount sought by Plaintiff. Each of the factors identified by the Plaintiff for granting fees is addressed below. However, as a preliminary matter Plaintiff asserts that even though he did not prevail on all issues1 he is still entitled to attorney's fees because he obtained "substantial" relief and the other claims were "inextricably intertwined." In Hensley v. Eckerhar, 461 U.S. 424 (1983) the respondents challenged the constitutionality of treatment and conditions at a state hospital. At trial, the District Court found violations in "five of the six general areas of treatment." The respondents thereafter applied for an award of attorney's fees. The Supreme Court explained that a plaintiff may be entitled to a full award of attorney's fees in the event that substantial relief is obtained on related claims. However, the Court specifically stated that: Where the plaintiff has failed to prevail on a claim that is distinct in all aspects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of reasonable fees. Id. at 440. The Supreme Court held that, despite prevailing on five of its six claims, the District Court had not considered "the relationship between the extent of success and the amount of the attorney's fees." Id.

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The Plaintiff brought three separate claims against the City: retaliation for exercising his right to free speech, violation of right of due process, and discrimination under the ADA. Each claim was litigated, tried and submitted for decision to the jury. The jury found in favor of the City on the free speech claim and the due process claim. (Theoretically making the City the prevailing party on two 42 U.S.C. §1983 claims).

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

In this case, Plaintiff's level of success is diminished in two aspects. First, while Plaintiff prevailed on the ADA claim, he failed to recover any damages for retaliation for the right of free speech and the lack of due process claims. These were distinct claims in which he sought distinct damages and which rested on proving (or disproving) different facts. Second, Plaintiff sought, at trial, over a million dollars in damages. The fact that he recovered only $85,000 is indicative of the fact that the level of success obtained in relationship to the amount claimed is minuscule. Accordingly, any award of attorney's fees should be limited.2 III. THE FACTORS SUGGESTED BY THE PLAINTIFF DO NOT JUSTIFY A DISCRETIONARY AWARD IN THE AMOUNT REQUESTED. Plaintiff cites twelve factors to justify an exercise of discretion in this case. However, none of the factors, by themselves justify an award. Rather, the Court should consider all the factors in determining whether an award in this case is appropriate. 1. The Time and Labor Was Not Reasonable.

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Plaintiff first attests that, since the Complaint was filed almost three years before trial, that he has worked for two and one-half years without any compensation. Under normal litigation standards, this might be reasonable. However, as the Court is undoubtedly aware, in the two and one-half years this case was pending there was not a single piece of discovery propounded by either side, or a single motion filed. Thus, the two and one-half years that this matter was pending consisted solely of telephone calls, correspondence, and the filing of court mandated joint documents.3 In addition, during this entire time, Plaintiff also had pending, and still has pending, his claims with the Public Safety Retirement Board ("PSRB"). Accordingly, the

Cabrales v. County of Los Angeles, 935 F. 2d 1050 (9th Cir. 1991) is distinguishable from the facts in this case. In Cabrales the issue was whether Plaintiff could recover fees for work done during different stages of the litigation process, if ultimately the plaintiff prevailed. The issue here is not different stages of success but different claims of success. For this same reason, counsel's argument that he was precluded from taking any new cases also fails. Apparently, counsel was taking quite a few other cases, or working on other cases, instead of taking discovery or making motions in this case.
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

work performed on this matter is inextricably woven with the claims that Plaintiff will present to the Board since, unlike the trial, the claims there relate solely to the one issue in which Plaintiff prevailed herein. And, from the time sheets, it is impossible to determine how much of the time cannot be used in preparation for the administrative claims before the PSRB. 2. No Novel Issues.

It is amusing that Plaintiff's counsel suggests that the "novelty" of the issue warrants fees in this case, given that counsel spends a substantial portion of his brief and affidavit suggesting that he is an expert in these types of cases. This was a straight ADA case, with the sole issue, on that claim, being whether the Plaintiff had a claim of disability discrimination under the ADA. 3. Skills.

Plaintiff mentions, without factual support specific to this case, that ADA claims are difficult. Even assuming, arguendo, that is the case in general, there is no evidence presented to show that Plaintiff's counsel had to do anything novel in this case other than to call his three witnesses to the stand and allow them to testify. 4. Preclusion of Other Employment.

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As noted in footnote number 3, given that we were in trial for only five days spread over 10 days, this should not have been a factor.4 5. Customary Fee.

Plaintiff's counsel admits that "most attorneys in Phoenix" do cases of this kind on a "one-third contingency basis or based on any statutory award of attorney fees issued in the case." Utilizing the one-third of any award as a basis for a "reasonable" fee, such amount would entitle counsel to, at most, $28,333. There is no basis to award Plaintiff any greater amount, and in fact, Plaintiff's fee agreement (Plaintiff's Exhibit B) contemplates that the fee may indeed be one-third of any recovery.

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Plaintiff spent less than 8 hours in all of 2003 on this case, and less than 8 hours in 2004 as well.

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

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Contingency Fee.

Plaintiff does not explain this factor, but a reasonable inference would be that, under normal circumstances, if a plaintiff's counsel spent years on a case without compensation, counsel might be entitled to a discretionary award of fees if he or she ultimately prevails. Given that in this case, until the time of trial Plaintiff's counsel spent less than two weeks of work, such fact should not be a factor. 7. No Time Limits.

For the reasons discussed previously, this is not a significant factor. 8. The Amount of Money.

Granted the award of $85,000 is not a trivial amount. However, in relationship to the amount requested (over $1,000,000) and the fact that counsel asserts himself that he has built his reputation on obtaining "seven figure awards" such amount is indeed small in comparison to what was sought. As the Court stated in Hensley, "Where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Id. at 440. 9. Experience of Trial Counsel.

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The City does not deny the Plaintiff's counsel is apparently very experienced in litigating these types of claims. It is apparently one of the reasons that he can do so little preparation in preparation for trial. However, such factor alone does not dictate an award of fees especially where one has failed to obtain a "seven figure verdict." (Plaintiff's Motion, p. 6). 10. Undesirability of the Case.

In somewhat of a catch-22, Plaintiff asserts that ADA cases are extremely difficult to win, and the fact that the Plaintiff prevailed is significant. In light of the fact that Plaintiff's counsel admits that "three mental healthcare professionals have already rendered written opinions that Mr. Tucker was psychologically unfit for duty as a police officer," the verdict says more about the failure of the jury to comprehend the elements of the ADA then it does about the ability of trial counsel or the undesirability of the case. 5
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

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Awards in Similar Actions.

Plaintiff cites two cases as justification that sometimes the award of fees is disproportionate to the results obtained. Both cases are distinguishable. In Riverside v. Rivera, 477 U.S. 561 (1986), the jury returned 37 individual verdicts against the defendants, 4 instances of false arrest, and 22 instances of negligence. The trial court in awarding fees found significant that the case presented complex and interrelated issues of fact and law, and that the results advanced the public interest. None of these factors are present here. Similarly, in Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F. 2d 493 (9th Cir. 2000), the jury awarded the plaintiff in her discrimination case $100,000 in back pay, $2 million in front pay, $1 million in compensatory emotional distress damages, and $8.6 million in punitive damages. The court thereafter reduced the punitive damages to $300,000. Again, no such factors are present here. 12. Other Factors.

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The fact that "very experienced trial counsel" has once again brought up the issue of settlement, in an attempt to prove his case for attorney's fees, is disturbing. In this

Motion, he raises the issue of settlement discussions as a basis as to why he should be entitled to his fees, giving the misleading suggestion that his previous offers of settlement were less than what he obtained at trial.5 Not only would such suggestion be incorrect, but is a violation of Rule 408 of the Federal Rules of Evidence. IV. CONCLUSION. For the foregoing reasons, the City respectfully requests that Plaintiff's Motion for Attorney's Fees be denied.

To the extent that the Court finds this factor relevant, then the City should be allowed to introduce the amount of the tentative settlement allegedly reached with Mr. Ching to determine whether the rejection of the settlement by the City Council was indeed a good decision for the City.

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

RESPECTFULLY SUBMITTED this 12th day of June, 2006. TEMPE CITY ATTORNEY'S OFFICE

s/ Marlene A. Pontrelli Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on June 12, 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 MONTOYA JIMENEZ, P.A. 3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 Attorney for Plaintiff I further certify that on June 12, 2006, the attached document was hand delivered

HONORABLE DAVID G. CAMPBELL United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 623 401 W. Washington Street, SPC 58 Phoenix, AZ 85003

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