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McCormack v. Herzog

United States District Court, Ninth Circuit

August 16, 2013

JENNIE LINN McCORMACK, on behalf of herself and all others similarly situated, and in the interests of the general public, Plaintiff,
STEPHEN F. HERZOG, Bannock County Prosecuting Attorney, Defendant. and RICHARD HEARN, M.D., on behalf of himself and his patients seeking medical abortions for health reasons prior to fetal viability, Plaintiff-in-Intervention


B. LYNN WINMILL, Chief District Judge.


Before the Court is Jennie McCormack's and Richard Hearn's Motion for Attorneys' Fees pursuant to 42 U.S.C. § 1988. The matters are fully briefed and the Court is familiar with the record. For the following reasons the Court will grant the motion in part, and deny it in part. More specifically the Court will award $376, 208.00, rather than the $407, 220.50 Plaintiffs requested in this motion.


On May 2, 2013, the Court entered final judgment in favor of Plaintiffs, McCormack and Hearn. Final Judgment and Permanent Injunction, Dkt. 87. The Court declared Idaho Code § 18-606, in conjunction with § 18-608(1) or § 18-608(2); and § 18-505, in conjunction with § 18-507 or § 18-508, as facially unconstitutional. Id. The court also permanently enjoined Herzog or any other Bannock County Prosecuting Attorneys from enforcing or initiating prosecuting under these unconstitutional statutory provisions. Id. Plaintiffs then filed this motion asking for an attorneys' fees award under 42 U.S.C. § 1988(b). Pl.'s Br., Dkt. 93.


Under the traditional American rule every party bears its own cost of litigation. However, an exception is created in § 1988 "to ensure effective access to the judicial process for persons with civil rights grievances." Hensley v. Eckhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). That statute provides for attorney fees in "any action or proceeding to enforce a provision of [section 1983]." 42 U.S.C. § 1988(b). Under the statute "a prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust. Mendez v. County of San Bernardino, 540 F.3d 1109, 1124 (9th Cir. 2008). Awarding attorney fees in these cases is "the rule rather than the exception." American Broadcasting Companies, Inc. v. Miller, 550 F.3d 786, 787 (9th Cir. 2008).

Having decided that plaintiffs are entitled to a fee award under § 1988(b), the Court must assess the amount of fees to award. This determination is done through a two-step "hybrid approach." Lyttle v. Carl, 382 F.3d 978, 988 (9th Cir. 2004). First, the Court must calculate the "lodestar figure" by multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate. See, e.g., Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). Second, the Court must decide whether to enhance or reduce the lodestar figure based on several factors-known as the Kerr factors-to the extent those factors are not already subsumed in the initial lodestar calculation. Id. The relevant Kerr factors are: (1) time limitations imposed by the client or the circumstances; (2) the amount involved and the results obtained, (3) the experience, reputation, and ability of the attorneys, (4) the "undesirability" of the case, (5) the nature and length of the professional relationship with the client, and (6) awards in similar cases. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).


Herzog concedes that McCormack is the prevailing party under § 1988. Def.'s Resp. Br. ¶ 7, Dkt. 95. Herzog also agrees that no special circumstances exist in this case, and concedes that the court should grant attorneys' fees. Id. Therefore, the Court must (1) determine the reasonable amount of attorney's fees and expenses using a lodestar calculation and (2) determine whether exceptional circumstances warrant modifying the lodestar amount.

1. Lodestar Amount

The defendant raises concerns regarding both steps of the lodestar calculation - the number of hours billed and the overall reasonableness of the amount claimed.

A. Reasonable Billing Hours

A Court must determine if the hours billed were "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. However, courts are tasked to consider the reasonableness of the documented hours without resort to blanket measures such as "an ...

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