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H.D.V. - Greektown, L. L. C. v. City of Detroit

United States District Court, E.D. Michigan, Southern Division

March 31, 2015

H.D.V. - GREEKTOWN, L. L. C., ET AL., Plaintiffs,
v.
CITY OF DETROIT, ET AL., Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [162], OVERRULING PLAINTIFFS' OBJECTION [164], AND GRANTING IN PART PLAINTIFFS' MOTION FOR ATTORNEY FEES AND COSTS [148]

ARTHUR J. TARNOW, Seniore District Judge.

Before the Court is a Report and Recommendation ("R&R") [162] entered on May 23, 2013, recommending granting in part Plaintiffs' Motion for Attorney Fees and Costs [148], and awarding $385, 401.12 in fees and costs to Plaintiff counsel for prevailing in the underlying action. Plaintiffs timely filed an Objection [164] and Defendants filed a Response [167]. On August 23, 2013 the Court stayed the Motion for Attorney Fees and Costs [148] because the municipal Defendant had filed for Chapter 9 bankruptcy on July 18, 2013. In December, 2014, the municipal Defendant emerged from bankruptcy; accordingly, the Court will now issue its ruling on Plaintiffs' Motion for Attorney Fees and Costs [148]. For the reasons that follow, Plaintiffs' Motion for Attorney Fees and Costs [148] is GRANTED and Plaintiff counsel is awarded $372, 118.19 in fees and $13, 282.93 in costs.

BACKGROUND

Plaintiffs obtained a $2, 950, 000 settlement in this § 1983 action. Plaintiffs are closely held Michigan limited liability companies in the adult entertainment business. They alleged that Defendants violated mainly their First Amendment rights by hindering the operation of their business with regulations. The parties stipulated that the Court would decide the issue of attorney fees pursuant to 42 U.S.C. § 1988 and that Plaintiffs were the prevailing parties for the purpose of determining fees and costs.

STANDARD OF REVIEW

This Court reviews de novo the portions of the R&R [162] to which objections have been filed. 28 U.S.C. § 636(b)(1); FRCP 72(b). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

ANALYSIS

P laintiff counsel seeks $1, 532, 640.61 in fees and costs. Defendants concede that Plaintiff counsel is entitled to some fees, but argue that the amount the R&R [162] recommends-$385, 401.12-is reasonable.

"The primary con cern in an attorney fee case is that the fee awarded be reasonable, " one that is adequate to attract competent counsel, but does not yield a windfall for lawyers. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). The Court begins by determining the fee applicant's lodestar, which is the proven number of hours reasonably expended on the case by an attorney, multiplied by her court-ascertained reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (emphasis added).

The R&R [162] calculates the lodestar using the hourly rates proposed by Plaintiff counsel themselves. The hourly rates were $350, $250, and $200 for Attorneys Shafer, Pritzlaff, and Hoffer respectively. The R&R [162] concludes, however, that the total number of hours Plaintiff counsel claims to have expended is not reasonable. The reasons the R&R [162] found the number of hours to be unreasonable is two-fold. First, the Magistrate concluded that certain hours are not compensable here. Second, the remaining time spent on the case was excessive. Ultimately, the R&R [162] recommends a total fee-and-costs award of $385, 401.12. The Court agrees that $385, 401.12 is a reasonable award in this case.

Objection One: Sixty Percent Reduction in Fees

Plaintiffs object to the R&R's recommendation that the Court reduce the lodestar by sixty percent. The Magistrate's approach of making a flat percentage cut to attorney fees was well within methods accepted by United States Courts to avoid turning attorney-fee requests into a "second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 438 (1983).

Plaintiffs' time sheets for fees are 113 pages long. Plaintiff counsel requests fees for things like communicating with the media, participating in administrative proceedings, watching the evening news, and for work related to the Jane Roe Plaintiffs who were voluntarily dismissed and received no legal relief from this action. Plaintiff counsel requests $56, 795 for preparation of its own fee Motion [148] and $21, 980 for preparation of the Reply [155] alone.

"The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances.'" HR REP. No. 94-1558, p. 1 (1976). That fundamental purpose of § 1988 is hardly relevant, let alone compelling here. Plaintiffs are closely held, extraordinarily profitable companies whose access to the judicial and political processes is far greater than most citizens, as demonstrated by the very background of this case. Further removing this Motion [148] from the congressionally intended purpose of § 1988, is the nature of Plaintiffs' grievance in this case-they pursued the least constitutionally important type of First Amendment right. Kiser v. ...


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