Shaw v. Smith

MEMORANDUM AND ORDER

KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

This matter is before the Court on Plaintiffs' Amended Motion For Attorneys' Fees And Non-Taxable Costs (Doc. #622 in No. 19-1343) and Plaintiffs' Amended Motion For Attorneys' Fees And Non-Taxable Costs (Doc. #157 in No. 20-1067), both filed March 4, 2024. Specifically, plaintiffs Blaine Shaw, Samuel Shaw, Joshua Bosire, Shawna Maloney and Mark Erich seek attorney fees and costs in the total amount of $3,010,931.08 against defendants Douglas Schulte, Brandon McMillan and Erik Smith in his official capacity as Superintendent of the Kansas

Highway Patrol (“KHP”).^[1] The following table represents the total fees and costs that plaintiffs request in their amended motion:

Plaintiffs' Requested Award
Attorney Fees - Bench Trial	$634,503.85
Attorney Fees - Jury Trials	$2,013,278.95
Non-Taxable Costs - Bench Trial	$231,733.44
Non-Taxable Costs - Jury Trials	$131,414.84
Total	$3,010,931.08

Plaintiffs request that the fees and costs attributable solely to the bench trial-$634,503.85 in attorney fees and $231,733.44 in non-taxable costs-be held in abeyance pending appeal. Plaintiffs do not explain this request except to argue in conclusory terms that such an approach would advance “the interest of judicial economy.” Memorandum In Support Of Plaintiffs' Motion For Attorneys' Fees And Litigation Expenses (Doc. #623) filed March 4, 2024 at 2. The Court perceives no advantage to holding the bench trial issues in abeyance and proceeds to address plaintiffs' motion in full. For reasons stated below, the Court sustains plaintiffs' motion in part and overrules it in part.

Legal Standard

In an action under 42 U.S.C. § 1983, the Court has discretion to grant reasonable attorney fees to the prevailing parties as part of costs. 42 U.S.C. § 1988(b). For purposes of Section 1988, plaintiffs prevail when “actual relief on the merits of [their] claim[s] materially alters the legal relationship” between the parties by modifying defendants' behavior in a way that directly benefits plaintiffs. Verlo v. City & Cty. of Denver, 789 Fed.Appx. 709, 712 (10th Cir. 2019) (citations omitted).

“Relief on the merits” occurs when plaintiffs “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Id. (citations omitted). Section 1988 does not distinguish between actions for injunctive relief and actions for damages. Lefemine v. Wideman, 568 U.S. 1, 5 (2012). Injunctive relief, compensatory damages and nominal damages may all support an award of fees under Section 1988. Id.; see also Farrar v. Hobby, 506 U.S. 103, 112 (1992) (plaintiff is prevailing party when awarded nominal damages).

A “material alteration” of the parties' legal relationship occurs when “there is judicial imprimatur on the change.” Verlo, 789 Fed.Appx. at 712. “The requisite judicial imprimatur can be in the form of an enforceable judgment on the merits, a court-ordered consent decree, or a judicially enforceable settlement.” Id. at 712-13. Such action by the Court, along with plaintiffs obtaining relief on the merits, confers prevailing party status on plaintiffs. Id. at 713.

Factual And Procedural Background

The factual background underlying the parties' dispute is set forth in detail in the Court's Memorandum And Order And Order To Show Cause (Doc. #539) filed July 21, 2023.^[2]

Highly summarized, plaintiffs Blaine Shaw, Samuel Shaw, Joshua Bosire, Shawna Maloney and Mark Erich filed suit under 42 U.S.C. § 1983 against Colonel Herman Jones in his official capacity as Superintendent of the KHP and the individual troopers who conducted their traffic stops, alleging violations of the Fourth Amendment rights. See First Amended Complaint (Doc. #7) filed January 30, 2020.

Samuel Shaw settled his damage claim against Schulte prior to trial. The Court entered the

parties' stipulated consent judgment on January 13, 2023. See Consent Judgment As To Samuel Shaw's Claim Against Douglas Schulte (Doc. #366). The consent judgment waived any claim for attorney fees and costs related to Samuel Shaw's damage claim against Schulte; it did not waive any claim for attorney fees and costs as to the claim for injunctive relief against Jones. Id. at 3.

In February of 2023, the Court conducted a three-day jury trial on Blaine Shaw's damage claim against Schulte. The jury found that Schulte lacked reasonable suspicion to extend Shaw's detention and awarded him $1.00 in nominal damages. See Verdict (Doc. #438) filed February 8, 2023 at 1-2. In April of 2023, the Count conducted a four-day jury trial on Bosire's damage claim against McMillan. That jury determined that McMillan also lacked reasonable suspicion to extend Bosire's detention. See Verdict (Doc. #499) filed April 27, 2024. The jury awarded Bosire $20,163.70 in compensatory damages and $20,000 in punitive damages. Id. at 2.

Plaintiffs also brought claims for injunctive and declaratory relief against Jones in his official capacity. Jones retired on July 1, 2023, and the Court substituted Smith, the current KHP Superintendent, as defendant. On July 21, 2023, following a seven-day bench trial on plaintiffs' claims for injunctive and declaratory relief, the Court held that in violation of the Fourth Amendment and Vasquez v. Lewis, 834 F.3d 1132 (10th Cir. 2016), the KHP was responsible for a policy or practice which unlawfully detained motorists in Kansas (especially out-of-state motorists) without reasonable suspicion or consent, based on out-of-state residency and-to more than a minimal extent-based on travel plans that were not implausible or inherently contradictory. Memorandum And Order (Doc. #539) at 75. It also held that in violation of the Fourth Amendment, defendant was responsible for a policy or practice of using the so-called Kansas Two-Step to extend traffic stops of motorists in Kansas without reasonable suspicion and without their knowing, intelligent and voluntary consent. Id.

On November 20, 2023, the Court issued a permanent injunction. See Permanent Injunction (Doc. #582). Smith appealed. See Notice Of Appeal (Doc. #585) filed December 15, 2023. That appeal remains pending.

Plaintiffs now seek attorney fees and non-taxable costs. See Plaintiffs' Amended Motion (Doc. #622). Pursuant to Section 1988, plaintiffs request attorney fees in the amount of $2,647,782.80 and non-taxable costs in the amount of $363,148.28 against Schulte, McMillan and Smith. Id. In response, Smith has filed a three-page objection that plaintiffs billed an excessive number of hours on the cases. See Defendant's Response To Plaintiffs' Amended Motion For Attorneys' Fees And Non-Taxable Costs (Doc. #626) filed March 19, 2024.

Analysis

Defendants do not dispute that plaintiffs are prevailing parties and are entitled to attorney fees. Further, defendants do not object to the hourly rates which plaintiffs request. As noted however, Smith objects to the number of hours for which plaintiffs seek fees. Specifically, Smith asserts that plaintiffs' counsel overstaffed and overworked these cases. Accordingly, Smith requests that the Court reduce plaintiffs' fees by at least 50 per cent.

As noted, in an action under Section 1983, the Court has discretion to grant reasonable attorney fees to the prevailing parties. 42 U.S.C. § 1988(b). To determine whether a fee request is reasonable, the Court first calculates the lodestar amount by multiplying the reasonable hourly rate by the hours that counsel reasonably spent litigating. Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1176 (10th Cir. 2010). If parties seek compensation for services by nonlawyers, such as legal assistants or student law clerks, the Court must scrutinize the reported hours and suggested rates in the same manner. Case v. Unified Sch. Dist. No. 233, Johnson Cty., Kan., 157 F.3d 1243, 1249 (10th Cir. 1998). The parties who seek fees bear the burden of establishing

entitlement to an award and documenting the appropriate hours and hourly rates. United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). If they do so, the Court presumes that the lodestar figure is a reasonable fee. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).

Initially, the Court notes that plaintiffs' counsel was extremely capable and well prepared, and attained excellent results. The Court specifically commends plaintiffs' lead counsel, Sharon Brett and Patrick McInerney, for exceptional work at all three trials. They and their litigation team achieved great success at the three trials and demonstrated outstanding integrity, practicality, preparation and diligence in litigating this matter.

A. Reasonable Rate

To determine whether billing rates are reasonable, the Court establishes a rate for each lawyer based upon the norm for comparable private firm lawyers in the area, which the Court calculates at the time of the fee award. Fish v. Kobach, No. 16-2105-JAR, 2018 WL 3647132, at *6 (D. Kan. Aug. 1, 2018) (citations omitted). The Court also applies this framework to nonlawyer assistants, such as paralegals and law students. See Case, 157 F.3d at 1255 (court scrutinizes suggested rates for legal assistants in same manner as lawyers).

Plaintiffs seek the following hourly billing rates:^[3]

Plaintiffs' Attorney