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Mario Velasco v. Broadway Arctic Circle

November 26, 2012


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



The Court has before it Plaintiff's Petition for Attorney Fees and Costs (Dkt. 57). For the reasons explained below the Court will grant the motion in part and deny the motion in part.


Velasco's Complaint alleged discrimination and retaliation under both the Americans with Disabilities Act ("ADA") and the Idaho Human Rights Act ("IHRA"). (Dkt. 1). The jury returned a verdict in favor of Velasco on all claims. (Dkt. 49). Following the jury verdict, Arctic Circle renewed its motion for Judgment as a Matter of Law. (Dkt. 53). The Court granted the motion as to the discrimination claims. (Dkt. 55).

With regard to the retaliation claims, the Court reconfirmed that Velasco was not entitled to a jury trial, but as the Court discussed with counsel before the case was tried, those claims were submitted to the jury for guidance and not to confuse the jury. (Dkt. 55 at 6). Ultimately, the Court agreed with the jury's finding that Arctic Circle retaliated against, and constructively discharged, Velasco. (Dkt. 55 at 6-7). The evidence at trial indicated that Article Circle significantly reduced Velasco's job responsibilities and hours in response to Velasco filing a discrimination claim with the Idaho Human Rights Commission. (Dkt. 55 at 6-7). Accordingly, the Court awarded Velasco $58,977 in equitable relief for back and front pay. (Dkt. 56)

Velasco then filed his motion for attorney's fees in the amount of $60,847.50, and for costs in the amount of $4,182.55. (Dkt. 57 & 58). Arctic Circle filed a response arguing that the fees and costs should be limited to no more than $20,000. (Dkt. 62 at 7).


In general, the American Rule states that each party to a lawsuit bears its own attorney fees unless Congress has statutorily provided otherwise. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The ADA is one area where Congress has statutorily allowed courts to award reasonable attorney's fees. Jankey v. Poop Deck, 537 F.3d 1122, 1129 (9th Cir. 2008); 42 U.S.C. § 12205. The purpose for allowing attorney's fees in civil rights actions is to ensure that plaintiffs have "effective access to the judicial process." Hensley, 461 U.S. at 429. "If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts." Jankey, 537 F.3d at 1131. Therefore, in most instances a prevailing party should recover attorney's fees. Hensley, 461 U.S. at 429.



To award attorneys fees in an ADA case, the Court must make two separate determinations. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118-1119 (9th Cir. 2000). First, the Court must find that the plaintiff was the prevailing party. Id. Second, the Court must decide what is a reasonable amount of fees. Id.

A. Prevailing Party

A plaintiff is considered the prevailing party "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Fischer, 214 F.3d at 1118. In other words, when a plaintiff has the right to enforce a judgment, consent decree, or settlement against a defendant, a material alteration of the legal relationship has occurred. Id. This alteration of the legal relationship results from plaintiff's right to "force the defendant to do something he would not otherwise have to do." Id.

Furthermore, a plaintiff is considered a prevailing party even if he did not prevail on every claim. Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995). A significant victory on any one claim, affording some relief sought, is enough to find that the plaintiff is a prevailing party. Id; Hensley, 461 U.S. at 433.

In this case, Arctic Circle does not dispute that Velasco was the prevailing party. (Dkt. 62 at 3). Velasco was awarded a judgment in the amount of $58,977 in equitable relief for front and back pay on his retaliation claims. (Dkt. 56). The Judgment therefore materially altered the legal relationship between the parties. Fischer, 214 F.3d at 1118. Accordingly, the Court finds that Velasco was a prevailing party in this case.

B. Reasonable Fee

The Court must next determine what amount of attorney's fees is reasonable. Id. at 1119. In determining the fee award, a district court must consider whether the rate charged and whether the hours expended by the attorneys were reasonable. Hensley, 461 U.S. at 433. The Ninth Circuit has adopted twelve factors known as the Kerr factors to aid a district court in this decision. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1213 (9th Cir. 1986). They include: "(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (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.

Once the district court has determined that both the hourly rate and hours expended are reasonable, it should take these two numbers and multiply them to establish an initial estimate of the value of the attorney's services. Hensley, 461 U.S. at 433.

In this case, Velasco was represented by Thomsen Stephens Law Offices. The law office billed Velasco 292.4 hours for the work of four attorneys -- Jacob Wessel, James Holman, Alan Stephens and Jason Wood. (Dkt. 59). The hours were billed at different rates depending on which attorney did the work. (Dkt. 59 at 2). The chart below depicts the hourly rates and total hours expended by each attorney. (Dkt. 59 at 2).

ATTORNEY HOURS BILLED HOURLY RATE TOTAL Jacob Wessel 244.9 $200 $48,980 James Holman 42.2 $250 $10,550 Alan Stephens 5 $250 $1,250 Jason Wood .3 $255 $67.50 Total $60, 847.50

Velasco's attorneys also provided the Court with a nine page itemized statement detailing the services they provided to Velasco. (Dkt. 59 Ex. A). The Court has reviewed these documents and all other documents submitted by Velasco's attorneys, as well as those submitted by Arctic Circle's attorney. After viewing these documents and the case as a whole, the Court finds that the hourly rates charged by Velasco's attorneys are reasonable. The Court also finds that the majority of the hours expended by Velasco's attorneys are reasonable, with a few exceptions. However, the Court rejects Arctic Circle's argument that one of the ...

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