Act Now to Stop War & End Racism Coal. v. District of Columbia, 07-cv-1495 (RCL)

ACT NOW TO STOP WAR AND END RACISM COALITION, et al., Plaintiffs,

v.THE DISTRICT OF COLUMBIA Defendant.

07-cv-1495 (RCL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: November 19, 2012

MEMORANDUM OPINION

(AWARDING AND CALCULATING REASONABLE ATTORNEYS' FEES)

Before the Court is plaintiff's Submission and Affidavits for Reasonable Attorneys' Fees and Costs Pursuant to the Court's October 4, 2012 Memorandum Opinion and Order, Oct. 18, 2012, ECF No. 72. The Court found that the defendant District of Columbia violated a scheduling order without substantial justification, and awarded plaintiff reasonable costs under Federal Rule of Civil Procedure 16(f)(2). Act Now to Stop War and End Racism Coal. v. Dist. of Columbia (ANSWER IV), ___ F. Supp. 2d ___, 2012 WL 4712980 (D.D.C. Oct. 4, 2012) (ECF Nos. 67 & 68). Pursuant to this Opinion and Order, the plaintiff now submits its request for attorneys' fees. Upon consideration of the plaintiff's motion, the District's Opposition, Oct. 26, 2012, ECF No. 75, the plaintiff's Reply thereto, Nov. 13, 2012, ECF No. 80, and the record herein, the Court will grant in part plaintiff's motion and enter an award of $15,911.00.

I. INTRODUCTION AND BACKGROUND

The District of Columbia and several non-profit political advocacy organizations have been locked in a long-running dispute over the constitutionality of the District's posteringregulations. The District allows political signs to be affixed to the District's lampposts, subject to specified restrictions. The District calculates how long posters may remain affixed differently based on whether the poster "relates to an event." The current regulations allow all signs to remain posted for a maximum of 180 days, but require signs related to an event be removed within 30 days after the related event. 24 D.C. CODE MUN. REGS. § 108 (2012). The remaining plaintiff, Muslim American Society Freedom Foundation ("MASF"), alleges that the law is an unconstitutional content-based regulation of speech, and is impermissibly vague and overbroad. See Pl.'s Mot. Summ. J., June 22, 2012, ECF No. 60. For a more detailed history of this case, see: Act Now to Stop War and End Racism Coal. v. Dist. of Columbia (ANSWER III), 798 F. Supp. 2d 134, 134-43 (D.D.C. 2011).

On July 21, 2011, the Court granted in part the District's motion to dismiss. The Court dismissed all claims except MASF's facial constitutional challenges, and directed the case to proceed to discovery, giving the District "an opportunity to clarify the questions remaining about the meaning of the term 'event' and the relation of the event/non-event distinction" in the postering regulations "to the anti-littering interests it asserts." Id. at 151-55.

On October 21, 2011, the parties submitted a Joint Report discussing how to proceed. ECF No. 45. MASF argued that the remaining issues warranted additional discovery, but the District asserted that "discovery is unnecessary here, as the remaining facial vagueness challenge presents a purely legal question." Id. at 3-4. The District did not state anywhere in the Joint Statement that it sought discovery, although it proposed an order providing "that each party may not propound more than ten (10) interrogatories...five (5) requests for production of documents, and may not take more than one (1) deposition[.]" Def.'s Proposed Sched. Order, Oct. 21, 2011, ECF No. 45-1. The plaintiff proposed "that the plaintiff [be] authorized to propound not morethan ten (10) interrogatories, ten (10) requests for production, fifteen (15) requests for admission, and take six (6) depositions which shall include within that number any deposition(s) pursuant to Fed. R. Civ. P. 30(b)(6)[.]" Pl.'s Proposed Sched. Order, Oct. 21, 2011, ECF No. 45-2.

The Court entered a Scheduling Order on November 17, 2011, granting word for word MASF's proposed scheduling order. ECF No. 48. It authorized the plaintiff to take limited discovery; it did not provide for any discovery by the District. Id. Afterwards, the District's Office of the Attorney General ("OAG") propounded discovery requests on MASF (and ANSWER, who was no longer a party to the action). See Def.'s First Set of Interrogs. to Pls. & Req. Docs., Mar. 9, 2012, ECF No. 49-2. MASF's counsel objected and asked the District to either withdraw these requests or explain what authorized them. Pl.'s Ltr. to Def., Apr. 5, 2012, ECF No. 49-2. In response, the District claimed that the Court's Scheduling Order only "imposed limits on any discovery sought by plaintiffs [sic]" but "did not impose any such limits on the District." Def.'s Ltr. to Pl., Apr. 9, 2012, ECF No. 49-2.

With the District refusing to withdraw all its discovery requests, MASF requested a protective order and an award of reasonable expenses. Pl.'s Mot. Protective Order, Apr. 11, 2012, ECF No. 49. MASF maintained that the District's unauthorized discovery requests violated the Scheduling Order without substantial justification. Id. at 11. The Court granted MASF's motion and awarded MASF their reasonable expenses per Federal Rule of Civil Procedure 16(f). ANSWER IV, 2012 WL 4712980. The District then asked the Court to reconsider and withdraw this Opinion and Order. Def.'s Mot. Reconsideration 1-2, 12, Oct. 12, 2012, ECF No. 70. In an opinion issued this date, the Court denies this Motion for Reconsideration and the District's alternative request that the Court stay payment of sanctionsuntil final judgment and an opportunity for appellate review. Mem. Op. & Order Denying Def.'s Mot. Reconsideration and to Stay, Nov. 19, 2012, ECF Nos. 81 & 82.

Pursuant to the Court's Order in ANSWER IV, the plaintiff has submitted a petition for reasonable attorneys' fees and costs, accompanied with itemized invoices and supporting affidavits. Oct. 18, 2012, ECF No. 72. The plaintiff originally requested $16,389.00, and revised this number downward to $16,211.00 in its Reply. Pl.'s Reply ISO its Mot. Att'ys' Fees 18, Nov. 13, 2012, ECF No. 80 ("Pl.'s Reply"). The District, in its Opposition, claims the plaintiff is entitled to no more than $12,554.50 (or $11,842.50—the District provides two different numbers without explanation). Def.'s Opp'n to Pl.'s Mot. Att'ys' Fees 6, Nov. 1, 2012, ECF No. 77 ("Def.'s Opp'n"). After scrutinizing the plaintiff's submission and considering the District's objections, the Court finds that the plaintiff is entitled to an award of $15,911.00.

II. LEGAL STANDARD

Scheduling Orders, as provided by Federal Rule of Civil Procedure 16 and Local Rule 16, are important case management tools. Local Rule 16.3 imposes a duty to confer on the parties, who must discuss a variety of pre-trial and discovery matters and submit a joint report to the court. After considering this submission, the court shall enter a scheduling order governing the rest of the action. LcvR 16.4. This order is "intended to serve as the unalterable road map (absent good cause) for the remainder of the case." Olgyay v. Soc. for Envtl. Graphic Design, Inc., 169 F.R.D. 219, 220 (D.D.C. 1996) (internal quotation marks omitted). When a party violates the scheduling order, Federal Rule 16(f)(2) provides:

Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees— incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 16(f)(2). Awarding reasonable expenses under this provision does not require a finding of "bad faith." See, e.g., Matter of Baker, 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc), cert. denied, 471 U.S. 1014 (1985). Some courts have said Rule 16(f)(2) sanctions flow almost automatically from a violation of a scheduling order, unless the court finds the violation was "substantially justified" or sanctions would be otherwise unjust. See, e.g., In re Philbert, 340 B.R. 886, 890 (Bankr. N.D. Ind. 2006).

The court must determine whether the attorneys' fees are reasonable. Jackson v. Dist. of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The plaintiff bears the burden of demonstrating that both the hourly rate and the number of hours spent on any particular task are reasonable. In re North, 59 F.3d 184, 189 (D.C. Cir. 1995). A plaintiff can do so by submitting evidence on: "the attorneys' billing practices; the attorneys' skill, experience, and reputation; and the prevailing market rates in the relevant community." Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). Once the plaintiff provides this information, a presumption arises that the number of hours is reasonable and the burden shifts to the defendant to rebut the plaintiff's showing. Id. at 1109-10.

Courts in the District of Columbia have traditionally determined a reasonable hourly rate for complex federal litigation through use of the "Laffey Matrix." Heller v. Dist. of Columbia, 832 F. Supp. 2d 32, 40 (D.D.C. 2011). The Laffey Matrix, developed 29 years ago in Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), aff'd in part and rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), provides billing rates for attorneys in the Washington, D.C. market with various degrees of legal experience. Plaintiff submitted a version of the LaffeyMatrix issued by the Civil Division of the United States Attorney's Office ("USAO") for the District of Columbia. Ex. 5 to Pl.'s Mot. Att'ys' Fees.¹ The "USAO Laffey Matrix determines hourly rates for attorneys of varying experience levels by taking the hourly rates contained in the original 1982 Laffey Matrix and adjusting those rates for inflation based upon changes in the Washington, D.C.-area...