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 Craig Tucker, plaintiff, vs. The City of Tempe, defendant. Pursuant to Local Rule of Practice 54.2, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205, Plaintiff Craig Tucker hereby moves this Court for an award of his 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 23rd day of May 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 MEMORANDUM IN SUPPORT OF HIS MOTION FOR AN AWARD OF ATTORNEY FEES (Oral Argument Requested)

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MEMORANDUM OF POINTS AND AUTHORITIES Eligibility: This is an action for employment discrimination arising under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, brought by plaintiff Craig Tucker against the City of Tempe. Mr. Tucker filed this action on July 25, 2003. After discovery, motion practice, and an aborted settlement agreement, Mr. Tucker tried his claims before a jury of his peers over the course of five-days in late November and early December of last year. The jury rendered its verdict on December 2, 2005 in favor of Mr. Tucker and awarded the amount of $85,000.00 against the City of Tempe. A Final Judgment was entered by the Clerk of the Court in favor of Craig Tucker and against the City of Tempe in the amount of the verdict on March 14, 2006. Mr. Tucker is entitled to an award of his attorney fees as the prevailing party in this civil rights action under 42 U.S.C. §12205. 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. § 12205, an ADA plaintiff is entitled to an award of attorney fees if he or she is the "prevailing party" in the underlying 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, 11171118 (9th Cir. 2000) (same). Mr. Tucker 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 -2-

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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 Mr. Tucker is entitled to enforce a money judgment in the amount of $85,000.00 against the City of Tempe, he is unequivocally the "prevailing party" in this case. The fact that Mr. Tucker did not prevail on all of his claims against Tempe is immaterial, because (1) he otherwise obtained "substantial relief" against Tempe, and (2) Mr. Tucker's due process and retaliation claims against the City were "inextricably intertwined" with his ADA claims. As the Supreme Court of the United States concluded in Hensley v. Eckerhart, 461 U.S. 424, 440 (1983): Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. Similarly, in Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-1053 (9th Cir. 1991), the Ninth Circuit observed that: We read Hensley as establishing the general rule that plaintiffs are to be compensated for attorney's fees incurred for services that contribute to the ultimate victory in the lawsuit. Thus, even if a specific claim fails, the time spent on that claim may be compensable, in full or in part, if it contributes to the success of other claims. Lastly, in Passantino v. Johnson & Johnson Consumer Products , 212 F.3d 517-518 (9th Cir. 2000), the Ninth Circuit stated that: The prevailing party is entitled to reasonable attorneys' fees if she succeeds on "any significant issue in litigation which achieves some of the benefit" of her suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). . . . Although Passantino did not prevail on her discrimination claims or her claim for injunctive relief, she prevailed on her retaliation claims, which were inextricably intertwined with her discrimination claims. In fact, in order to prevail on her retaliation claims, she had to prove that she reasonably believed that CPI was engaged in discriminatory activity. -3-

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In this case, Mr. Tucker's ADA claims against the City were "inextricably intertwined" factually and legally to his due process and retaliation claims. Specifically, even if Mr. Tucker had elected to sue only under the ADA­he would have still been required to address virtually all of the factual circumstances surrounding his termination from the City of Tempe. Mr. Tucker is consequently entitled to recover for all the time that his counsel expended in pursuing this matter to judgment against Tempe. Mr. Tucker's counsel devoted 186.30 hours to representing Mr. Tucker in this case. Craig Tucker's counsel's standard hourly rate is $275.00. The total fee requested is $51,232.50 ($275.00 x 186.30 = $51,232.50). As demonstrated below, the fee requested is reasonable under the circumstances. 3. 1. Reasonableness of the Requested Reward: The time and labor required of counsel. Mr. Tucker's counsel devoted 186.30 hours to representing his client in this case. The Complaint was filed on July 25, 2003, almost three years ago. The jury rendered its verdict on December 2, 2005. Mr. Tucker's counsel thus devoted well over two-years of hard work­without any compensation­ to representing his client in this case. The 186.30 hours devoted to the case includes all work performed in the litigation, from preparing the Complaint which initiated this action to preparing this Fee Application, but excludes all time which Craig Tucker'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, Mr. Tucker does not seek reimbursement for copying charges, fax charges, messenger service charges, or postage costs. 2. The novelty and the difficulty of the questions presented. As the Court is aware, the Americans with Disabilities Act is the most complex of all the federal anti-discrimination statutes. See generally, Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability under the Americans with Disabilities Act, 68 U. Colo. L. Rev. 107, 124-135 (1997). -4-

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The ADA is especially complex when considering individuals with perceived or actual "mental" disabilities. See generally, Psychiatric Disabilities, the Americans with Disabilities Act, and the New Workplace Violence Account, V. Laded and G. Schwartz, in Against the ADA, L. H. Krieger, Ed. (2003). Of course, the difficulty of resolving the question of an actual or perceived mental disability is exacerbated in the context of law enforcement officers. Under the circumstances, it cannot be reasonably disputed that the questions presented in Mr. Tucker's case were novel, factually and legally complex, and highly risky for Mr. Tucker to bring to trial. The skill requisite to perform the legal services properly. As the Court is aware, litigating ADA 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. Mr. Tucker'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, Mr. Tucker'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. Mr. Tucker's counsel believes that most attorneys in Phoenix, Arizona who represent plaintiffs in civil employment do so on a one-third contingency basis, or based on any statutory award of attorney fees issued in the case, if it successfully proceeds to trial. Whether the fee contracted between the attorney is fixed or contingent. The fee agreement in this case was contingent. See attached Exhibit B.

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7. 8.

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. The right to be free from discrimination based on perceived and actual disabilities is paramount to American society, hence the Americans with Disabilities Act. Moreover, the result obtained in this case--a jury verdict of $85,000.00, was not a nominal or trivial amount.

9.

The experience, reputation and ability of counsel.

Mr. Tucker's counsel

(Stephen 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. Approximately one-fifth 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. Mr. Tucker's counsel is a 1987 graduate of Yale Law School and has been active in civil rights litigation since 1988. Mr. Tucker's counsel has also established several significant precedents in the area of civil rights law and has won several 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). Id. 10. The "undesirability" of the case. As the Court is aware, it is extremely difficult for an ADA claimant to secure legal representation. This is true because of substantial difficulty plaintiffs experience in prevailing on ADA claims. Specifically, in an American Bar Association study of ADA cases litigated in the federal district courts that had gone to judgment, plaintiffs lost a staggering 92% of the time. See American Bar Association Commission on Mental and Physical Disability, 22 Mental and Physical Disability Law Reporter 403 -6-

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(1998). See also Ruth Colker, the Americans with Disabilities Act: a Windfall for Defendants, 34 Harvard C.R.-C.R.L. Rev. 99 (1999) (finding that Defendants in ADA actions prevail in the trial court 94% of the time). Based on these facts, all ADA cases on behalf of plaintiffs are extremely "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). This case could also be reasonably perceived as "undesirable," because three mental healthcare professionals have already rendered written opinions that Mr. Tucker was psychologically unfit for duty as a police officer. The fact that Mr. Tucker prevailed at trial in the face of this evidence is extremely significant. 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 Craig Tucker repeatedly attempted to resolve this case by means of a stipulated settlement, but Tempe-- through its City Council­refused to even attempt to negotiate a settlement in this case. Specifically, on July 26, 2005, Plaintiff's counsel reached a tentative written agreement with the Tempe City Attorney's office resolving this matter. Of course, the City Attorney's office -7-

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did not have authority to unilaterally settle the case and ultimately the agreement had to be approved, rejected or modified by the Tempe City Council. In this case, not only did the Tempe City Council reject the settlement agreement recommended by its attorneys, it also refused to suggest any modification or revision to the agreement that would have made it more acceptable to the Council. Accordingly, Mr. Tucker had no choice but to proceed to trial. Supporting Documentation: Attached hereto as Exhibit A are the time sheets that Mr. Tucker's counsel kept throughout this litigation. Attached hereto as Exhibit B is the underlying fee agreement between Craig Tucker and Stephen G. Montoya. Attached hereto as Exhibit C is the Affidavit of Stephen G. Montoya. Conclusion: For the foregoing reasons, Craig Tucker respectfully requests the Court to award his attorney fees in the amount of $51,232.50. Respectfully submitted this 23rd day of May 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

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I hereby certify that on May 23, 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 May 24, 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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