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Sergeant v. Acol

United States District Court, D. Maryland, Southern Division

January 3, 2018

ALFIE ACOL, et al., Defendants.


          Paul W. Grimm United States District Judge.

         After accepting a Rule 68 offer of judgment in this case alleging various violations of the First and Fourth Amendments pursuant to 42 U.S.C. § 1983, Plaintiff Allan Sergeant now has filed a motion for attorneys' fees and costs. Sergeant seeks fees at hourly rates within the ranges set by the Local Rules for the time spent on this matter by his attorneys. Acol argues that paying Sergeant the full lodestar amount would be excessive because Sergeant did not engage in meaningful settlement discussions, employed too many attorneys, and the difficulty of the case did not warrant the hours billed. After evaluating Sergeant's billing statements and the parties' arguments, I am awarding Sergeant attorneys' fees in the amount of $202, 836.56 and costs in the amount of $1, 723.41.[1]


         Allan Sergeant initiated this lawsuit after being stopped by Officer Alfie Acol in March 2014. Am. Compl. ¶ 13. During the stop, Acol frisked Sergeant and then conducted a public strip search by “pull[ing] SERGEANT's underwear down to just above his knees, exposing his genital and anal areas” outside a CVS in Laurel, MD. Id. ¶¶ 13, 31, 44-45.

         During the litigation, Acol and the other Defendants moved to dismiss many of the claims Sergeant brought against Acol, Thomas Houck, a fellow officer, the chief of the Laurel Police Department, the Laurel Police Department (“Police Department”), and the City of Laurel, Maryland (“Laurel”). ECF No. 12. In his Opposition to the Motion to Dismiss, ECF No. 14, Sergeant voluntarily dismissed the three counts alleged against the chief of the Police Department, the Police Department, and Laurel. In my memorandum opinion and order, I found that the four state constitutional tort claims did not comply with the notice requirements of the Local Government Tort Claims Act (“LGTCA”) and dismissed all four claims. Order, ECF No. 16. As such, four federal law claims pursuant to § 1983 remained: two Fourth Amendment claims against Acol, one Fourth Amendment claim against Acol and “Doe, ” and one First Amendment claim against Acol and “Doe.” Id. “Doe” was later amended to Houck. Second Am. Compl., ECF No. 27.

         On March 6, 2017, Sergeant filed a motion for entry of judgment in this matter after the parties had negotiated a settlement before Magistrate Judge Sullivan. ECF No. 63. The settlement followed Sergeant's acceptance of an offer of judgment Defendants made pursuant to Fed.R.Civ.P. 68. See ECF No. 59. This judgement only was against Acol in the amount of $125, 001.00, plus any reasonable attorneys' fees to be determined by the Court. Or. J., ECF No. 64. Sergeant has moved for attorneys' fees in the amount of $279, 158.00 for services provided by the Partnership for Civil Justice Fund (“PCJF”) and the Washington Lawyers' Committee for Civil Rights and Urban Affairs (“WLC”), as well as $1, 723.41 in litigation expenses. Pl.'s Mot., ECF No. 70., Pl.'s Reply, ECF No. 80.[2]


         Title 42 United States Code § 1988 provides that in an action brought under 42 U.S.C. § 1983, such as this one, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . .” Because judgment has been entered in Plaintiff's favor, there is no dispute that he is the prevailing party entitled to attorneys' fees. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“‘plaintiffs may be considered ‘prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'” (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Further, the parties agreed that the entry of judgment was for $125, 001.00 and, if any, reasonable attorneys' fees to be awarded to Sergeant. Def.'s Offer of J., ECF No. 59-1; Or. J.

         In calculating an award of attorneys' fees, the Court first must determine the lodestar amount, defined as a “reasonable hourly rate multiplied by hours reasonably expended.” Grissom v. The Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008); see Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (stating that “[i]n addition to the attorney's own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award” (internal citations omitted)). “[T]here is a ‘strong presumption' that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). In determining whether the lodestar results in a reasonable fee, this Court evaluates “the twelve well-known factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) and adopted by the Fourth Circuit in Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir. 1978).” Thompson, 2002 WL 31777631, at *6 (footnotes omitted). Those factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to properly perform the legal service; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Id. at *6 n.19 (citing Johnson, 488 F.2d at 717-19). However, the Supreme Court has noted (and experience awarding attorneys' fees has confirmed) that the subjective Johnson factors provide very little guidance and, in any event, that “‘the lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable attorney's fee.'” Perdue, 559 U.S. at 551, 553 (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 549, 566 (1986)). After the lodestar number is calculated, “the court must ‘subtract fees for hours spent on unsuccessful claims unrelated to successful ones.' Finally, the court should award ‘some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.'” McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (citing Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009).

         In calculating the lodestar amount, the party seeking fees “must show that the number of hours for which he seeks reimbursement is reasonable and does not include hours that are excessive, redundant, or otherwise unnecessary.” Travis v. Prime Lending, No. 3:07cv00065, 2008 WL 2397330, at *4 (W.D. Va. June 12, 2008) (concluding, after an initial determination that the attorney's hourly rate was reasonable for the particular district, that attorney's fees requested by Plaintiff were reasonable based on documentation of hours worked and tasks completed); Flynn v. Jocanz, 480 F.Supp.2d 218, 220-21 (D.D.C. 2007) (awarding requested attorneys' fees based on affidavits and the record).

         Also of import, Appendix B to this Court's Local Rules, Rules and Guidelines for Determining Attorneys' Fees in Certain Cases, provides the following “Guidelines Regarding Hourly Rates”:

a. Lawyers admitted to the bar for less than five (5) years: $150-225.
b. Lawyers admitted to the bar for five (5) to eight (8) years: $165-300.
c. Lawyers admitted to the bar for nine (9) to fourteen (14) years: $225-350.
d. Lawyers admitted to the bar for fifteen (15) to nineteen (19) years: $275-425.
e. Lawyers admitted to the bar for twenty (20) years or more: $300-475
f. Paralegals and law clerks: $95-150.

Loc. R. App'x B ¶ 3 (footnote omitted). However, these Guidelines are not definitive; they are “solely to provide practical guidance to lawyers and judges when requesting, challenging and awarding fees.” Loc. R. App'x B n.6. The Court may also consider “affidavits of lawyers in the [relevant] legal community attesting to the customary rates charged for [similar matters].” Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 509-10 (D. Md. 2000).

         Here, Plaintiff seeks a total of $279, 158.00 in attorneys' fees for services provided by PCJF and WLC, as well as $1, 723.41 in costs. Pl.'s Reply 1. As required by this Court's local rules, Plaintiffs have provided itemized billing entries, see, e.g., PCJF Billing Entries, ECF No. 70-1; WLC Billing Entries, ECF No. 70-2; Reply Expenses, ECF No. 80-2. Sergeant also has filed declarations setting forth the experience level of each person who recorded time on his case. Verheyden-Hilliard Decl., ECF No. 70-3; Messineo Decl., ECF No. 70-4; Corkery Decl., ECF No. 70-5; Freeman Decl., ECF No. 70-9. Acol does not dispute Plaintiff's hourly rates, but does argue that the hours Plaintiff's counsel billed are excessive and should be reduced. Def. Opp'n 1. Accordingly, Acol proposes that Plaintiffs' fee request be reduced by 50%, for an award of $128, 770, [3] or otherwise substantially reduced. Id. at 43. Acol also opposed Sergeant's costs for copying, telephone, postage, room rental for a deposition, and an expert's fee. Id. at 42. Sergeant withdrew a charge of $750.00 for WLC reviewing the draft third amended complaint, for compensation for the expert witness fees in the amount of $3, 437.00, and the deposition meeting room in the amount of $400. Pl.'s Reply 21, 39.

         The mere fact that Plaintiff has set forth the attorneys' fees based upon time actually expended by his attorneys does not require me to take them at their word when calculating the lodestar amount; rather, Plaintiffs only are entitled to a “reasonable hourly rate multiplied by hours reasonably expended.” Grissom, 549 F.3d at 320 (emphasis added); see also Hensley, 461 U.S. at 433-34 (“The district court also should exclude from this initial fee calculation hours that were not ‘reasonably expended.'”). Defendants do not oppose the rates Plaintiff's counsel seek, and I find them reasonable as they are within the guidelines set by this Court's Local Rules- despite all of them being at the highest acceptable rate. Although the declarations Sergeant has filed do not indicate the years each of the attorneys began practicing, they do note the years each graduated from law school. See, e.g. Messineo Decl. ¶ 3; Verheyden-Hilliard ¶ 3. Given each of the attorney's graduation dates and declared experience, I find each to be billing at a reasonable rate. Therefore, I will adopt the following rates as proposed by Sergeant:

1. Attorney Carl Messineo: $475 per hour
2. Attorney Mara Verheyden-Hilliard: $475 ...

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