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Fernandes v. Montgomery County, MD

United States District Court, Fourth Circuit

December 3, 2013

MONTGOMERY COUNTY, MD, et al. Defendants.



Plaintiff Victor Fernandes ("Mr. Fernandes") sued Defendant Officer Paul Craine ("Officer Craine"), alleging that Officer Craine violated his constitutional rights pursuant to 42 U.S.C. § 1983.[1] Mr. Fernandes also brought state law malicious prosecution, false imprisonment, false arrest, assault, and battery claims. After a four-day trial commencing on December 4, 2012, the jury found for Officer Craine on the state law claims and on the § 1983 claim asserting false arrest, but determined that Officer Craine had used excessive force against Mr. Fernandes in violation of his constitutional rights. Although Mr. Fernandes requested a far greater award, the jury awarded him compensatory damages totaling $12, 700.00. This Memorandum Opinion addresses Mr. Fernandes's Motion for Attorney's Fees and Costs. See ECF No. 62. I have considered Officer Craine's Response in Opposition, and Mr. Fernandes's Reply thereto. No hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, the motion is GRANTED and attorney's fees are awarded in the amount of $69, 560.40, plus $455.00 in costs.[2]

I. Background

Following the jury verdict in his favor, Mr. Fernandes filed a motion requesting an award of attorney's fees. See ECF No. 62. However, the motion was untimely, and Mr. Fernandes requested this Court to extend the time for filing. See ECF No. 64. This Court denied that request, finding that Mr. Fernandes's failure to timely file the motion was the result of "run of the mill inattentiveness." Fernandes v. Montgomery Cnty., Md., No. SAG-10-752 (D. Md. Feb. 27, 2013), ECF No. 78. Mr. Fernandes appealed to the Fourth Circuit, which vacated this Court's decision and remanded the case for resolution of Mr. Fernandes's pending motion for attorney's fees.

II. Legal Standard

The prevailing party in a § 1983 action is entitled to seek "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). "[To] qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim." Farrar v. Hobby, 506 U.S. 103, 111 (1992). "A person may not be a prevailing party under 42 U.S.C. § 1988 except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought in a § 1983 action." S-1 and S-2 By and Through P-1 and P-2 v. State Bd. of Educ. of N.C. , 21 F.3d 49, 51 (4th Cir. 1994). There is no dispute that Mr. Fernandes was the prevailing party at trial, as the jury awarded him a total of $12, 700.00 in compensatory damages after finding that Officer Craine used excessive force in effecting his arrest.

As the prevailing party, Mr. Fernandes is entitled to attorney's fees of a reasonable amount. In calculating an attorney's fee award, courts must determine the lodestar amount, which is the "reasonable hourly rate multiplied by hours reasonably expended." See U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 356 (4th Cir. 2009). Courts must also consider twelve factors enunciated by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), and adopted by this Circuit in Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir. 1978) when assessing the overall reasonableness of a fee request. The factors include:

(1) the time and labor required in the case, (2) the novelty and difficulty of the questions presented, (3) the skill required to perform the necessary legal services, (4) the preclusion of other employment by the lawyer due to acceptance of the case, (5) the customary fee for similar work, (6) the contingency of a fee, (7) the time pressures imposed in the case, (8) the award involved and the results obtained, (9) the experience, reputation, and ability of the lawyer, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship between the lawyer and the client, and (12) the fee awards made in similar cases.

Allen v. U.S., 606 F.2d 432, 436 n* (4th Cir. 1979). Some factors "may not have much, if anything to add in a given case." In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010). However, "the factors that do apply should be considered." Id.

In Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), the Supreme Court criticized the Johnson factors as giving "very little actual guidance to district courts." Perdue, 559 U.S. at 551. The Court described the factors as "sometimes subjective, " and noted that they "placed unlimited discretion in trial judges and produced disparate results." Id. (internal quotations omitted). Although the Supreme Court touted the benefits of the lodestar method as an alternative approach for calculating reasonable fees, it did not overrule the Johnson factors. Courts in this Circuit still apply the Johnson factors, although many of the factors are subsumed in the lodestar calculation. See McAfee v. Boczar, 906 F.Supp.2d 484, 492 (E.D. Va. 2012); Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 478 U.S. 546, 564 (1986). I will therefore calculate the lodestar amount, and then consider the reasonableness of the resulting fee using the Johnson factors.

III. Analysis

In Mr. Fernandes's original Motion for Attorney's Fees, filed on December 27, 2012, he sought $71, 960.00 in fees based on 198.7 billed hours, at a rate of $350.00 per hour.[3] See Pl.'s Mem. 2, ECF No. 63. Following post-trial motions, and the appeal to the Fourth Circuit, Mr. Fernandes has accrued a total of 323.4 hours, for a total of $113, 190.00 in attorney's fees. Mr. Fernandes has agreed to subtract 20.08 hours from his time billed, amounting to a total of 303.32 total hours, or $106, 162.00.[4] Mr. Fernandes is also seeking $949.39 in costs. See Pl.'s Reply 14-15. In light of the limited degree of success at trial, and counsel's overall performance while litigating the case, Mr. Fernandes's fee request is excessive, and it merits a significant downward adjustment.

A. Reasonable Hourly Rate

"[D]etermination of the hourly rate will generally be the critical inquiry in setting the reasonable fee, ' and the burden rests with the fee applicant to establish the reasonableness of the requested rate." Plyer v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990). The attorney seeking fees should produce "satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award." Id. (internal quotations omitted). Hourly rates for an attorney's fees are also guided by Appendix B to this Court's Local Rules, ...

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