Gerling v. Waite

1

WAYNE GERLING, Plaintiff, v. MATTHEW WAITE, Defendant.

No. 4:17-CV-02702 JAR

United States District Court, E.D. Missouri, Eastern Division

February 24, 2022

MEMORANDUM AND ORDER

JOHN A. ROSS UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiff's Motion for Award of Attorneys' Fees and Non-Taxable Costs (Doc. No 184) and Motion for Bill of Costs (Doc. No. 193). The motions are fully briefed and ready for disposition.

I. Background

Plaintiff Wayne Gerling (“Gerling”) sued Defendant Matthew Waite (“Waite”), a police officer in Hermann Missouri, under 42 U.S.C. § 1983, alleging that Waite unlawfully arrested him and used excessive force during the arrest. The Court denied Waite's motion for summary judgment and Waite appealed, arguing he was entitled to qualified immunity. The Eighth Circuit affirmed the denial of summary judgment on Gerling's unlawful arrest claim but concluded that Waite was entitled to qualified immunity on Gerling's excessive force claim and remanded the case for further proceedings. Gerling v. City of Hermann, Missouri, 2 F.4th 737 (8th Cir. 2021).

The case came before a jury for trial on December 6, 2021. On December 8, 2021, the jury returned a verdict in favor of Gerling, awarding him $150, 000.00 in compensatory damages and $500, 000.00 in punitive damages. On January 4, 2022, Gerling filed his motion for $600, 096.00 in attorneys' fees and $9, 172.43 in non-taxable costs, for a total award of $609, 268.43.^[1] Gerling has since supplemented his motion for attorneys' fees seeking an additional $23, 200.00 in fees for time spent time preparing his motions for attorney fees and bill of costs and responding to Waite's objections thereto. (Doc. No. 204 at 12). On January 10, 2022, Gerling filed his motion for bill of costs, asserting entitlement to costs pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1920 in the amount of $12, 699.40.

II. Motion for attorneys' fees

In a § 1983 case, the Court “may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). A party is a prevailing party under § 1988 if he succeeds on any significant issue in the case “which achieves some of the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoted case omitted); see Farrar v. Hobby, 506 U.S. 103, 111 (1992) (a prevailing party is one who obtains “at least some relief on the merits of his claim”).

A trial court's “discretion to deny attorneys' fees to a prevailing plaintiff is narrow.” Jenkins ex rel. Jenkins v. State of Mo., 127 F.3d 709, 716 (8th Cir. 1997). “[A] prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley, 461 U.S. at 429 (quoted source omitted). “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” Id. at 435. The Eighth Circuit has stated, “If the plaintiff has won excellent results, he is entitled to a fully compensatory fee award, which will normally include time spent on related matters on which he did not win.” Jenkins, 127 F.3d at 716 (citing Hensley, 461 U.S. at 435).

The party seeking the award must submit evidence supporting the requested hours and rates, making a “good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary[.]” Hensley, 461 U.S. at 434. “To calculate attorney's fees, courts typically begin by using the lodestar method, which multiplies the number of hours reasonably expended by reasonable hourly rates.” Bryant v. Jeffrey Sand Co., 919 F.3d 520, 529 (8th Cir. 2019) (citing Brewington v. Keener, 902 F.3d 796, 805 (8th Cir. 2018)). Courts consider several factors in determining a reasonable attorney's fee, including the time and labor required to litigate the case, the novelty and difficulty of the questions involved, the skill required to perform the services properly, customary fees, the results obtained, and awards in similar cases. See McDonald v. Armontrout, 860 F.2d 1456, 1459 & n.4 (8th Cir. 1988); Fernandez v. St. Louis Cty., Missouri, 538 F.Supp.3d 888, 905 (E.D. Mo. 2021). “When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates.” Bryant, 919 F.3d at 529 (quoting Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005)).

For purposes of lodestar analysis, Gerling submits the following concerning his attorneys' hourly rates and the hours expended in this litigation:

Attorney

Hours

Rate

Total

Kevin Carnie

334.6

$595

$199, 087

David Welder

496

$500

$248, 000

Courtney McCray

17.3

$350

$6, 055

Paul Breer

5.7

$350

$1, 995

Emily Tung

11.5

$350

$4, 025

Holli Dobler

33.4

$350

$11, 690

Patrick McPhail

217.6

$450

$97, 920

Amy Sciuto

51.7

$275

$14, 217.50

Cheryl Little

42.5

$250

$10, 625

Aly Ridgley

44.3

$250

$11, 075

Gerling's motion is supported by Declarations signed by his attorneys describing their backgrounds and experience and providing details of their hours billed. (Doc. Nos. 185-1, -2, -3). He maintains that the rates being requested by his attorneys are reasonable and in line with the St. Louis and Kansas City markets and submits Missouri Lawyers Media billing rates data indicating that in the Kansas City area, the partner median rate was $475 in 2019 and $490 in 2021 and the associate median rate was $345 in 2019 and $300 in 2021. In the St. Louis area, the partner median was $450 in 2021, and the associate median rate was $250. In 2021, the statewide median was $475 for partners and $250 for associates. (Doc. Nos. 185-4, -5).

A. Hourly rate

Waite does not dispute the background and experience of Gerling's attorneys but asserts that their hourly rates exceed what is reasonable and customary for the St. Louis and Kansas City areas and should be closer to the median rates for all attorneys. He suggests a more reasonable rate would be $375 per hour for partners like Mr. Carnie and Mr. Welder and $250 for associate attorneys like Mr. McPhail and those working for Mr. Welder.

The Court does not agree, based on its experience with this case, with civil rights cases in general, and its knowledge of prevailing attorney hourly rates in this area and as awarded by this Court. In recent years, this Court has found rates as high as those sought here to be reasonable for the St. Louis market. Willson v. City of Bel-Nor, Missouri, No. 4:18-CV-003 RLW, 2021 WL 2255003, at *5-6 (E.D. Mo. June 3, 2021) (citing cases). For example, in Fernandez, 538 F.Supp.3d at 906, the Court approved, without opposition, hourly rates of $575 and $475 per hour for experienced civil rights attorneys. In M.B. v. Tidball, No. 2:17-CV-4102-NKL, 2020 WL 1666159, at *6 (W.D. Mo. Apr. 3, 2020), aff'd sub nom. M.B. by Eggemeyer v. Tidball, 18 F.4th 565 (8th Cir. 2021), a civil rights class action, the Court found hourly rates of up to $500 appropriate for senior litigators and rates of up to $375 appropriate for associates and staff attorneys. Other recent § 1983 cases suggest the hourly rates sought here are reasonable and consistent with local prevailing rates. See, e.g., S.C. by & through M.C. v. Riverview Gardens Sch. Dist., No. 18-4162-CV-C-NKL, 2020 WL 5262267, at *8 (W.D. Mo. Sept. 3, 2020) (approving rates of $350 and $450 for civil rights litigators with over ten years of experience); Robinson v. City of St. Louis, Mo., No. 4:17-CV-156 PLC, 2020 WL 4673823, at *3 (E.D. Mo. Aug. 12, 2020) (approving an hourly rate of $400 to one attorney admitted to the Missouri bar in 2008 who practiced civil rights law since 2014, and to another attorney who was admitted in 2010 and practiced civil rights and employment law); D.L. v. St. Louis City Pub. Sch. Dist., No. 17CV1773 RWS, 2019 WL 1359282, at *2 (E.D. Mo. Mar. 26, 2019) (approving rates of $300 and $400 where plaintiff had submitted evidence “demonstrating billing rates of $200-$350 for ‘attorneys' or ‘associates' practicing employment or civil rights law in the St. Louis metropolitan area and billing rates of $350 - $500 for ‘partners' practicing employment or civil rights law in the St. Louis metropolitan area”) (citation omitted)); Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 2:13-CV-4022-NKL, 2018 WL 5848994, at *6 (W.D. Mo. Nov. 7, 2018) (awarding rates of up to $450 for experienced civil rights litigators). These cases establish that the hourly rates sought by Plaintiff's experienced civil rights attorneys are reasonable for the market.

Waite further argues Gerling provides no support for the hourly rate claimed for paralegals in this case, pointing to a 2019 survey which reports the median rate for support staff throughout the state at $175.00. The Court notes, however, that the broad term “support staff” includes not just paralegals, but also other types of support staff that may be less skilled. M.B., 2020 WL 1666159, at *6. A survey of billing rates conducted by Missouri Lawyers Weekly in 2018 shows rates listed for paralegals who work on class action or civil rights cases specifically are between $215 and $275. Id. Accordingly, the Court finds Gerling's proposed rate of $250 for each paralegal is reasonable.

B. Number of attorneys /overstaffing

Waite urges the Court to reduce Gerling's fee request by 50% to account for unnecessary and duplicative billings from the two law firms involved, citing Albright v. Bi-State Dev Agency of Missouri-Illinois Metro. Dist., No. 4:11CV01691 AGF, 2013 WL 4855304, at *4 (E.D. Mo. ...