United States District Court, D. Idaho
REPORT AND RECOMMENDATION
CANDY W. DALE, Magistrate Judge.
Before the Court is Plaintiff Benjamin Onosko's Motion for Attorney fees, as amended, requesting an award of fees in the amount of $13, 190.00. (Dkt. 32, 33.) The post-judgment motion was referred to the undersigned magistrate judge on December 16, 2014. The parties have fully briefed the motion and the matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding delay, and because the Court conclusively finds the decisional process would not be significantly aided by oral argument, the motion will be decided on the record before the Court. Dist. Idaho L. Rule 7.1. For the reasons explained, the Court will recommend the motion be granted in part and denied in part. The Court will recommend Plaintiff be awarded $380.00 in attorney fees.
Plaintiff Benjamin Onosko, a licensed attorney in the state of Idaho, filed this action on behalf of himself on January 3, 2014. Onosko appeared pro se on all pleadings filed on his own behalf until November 19, 2014, when attorney Katheryn Bilodeau filed a Notice of Appearance as counsel for Onosko. (Dkt. 23.)
On November 21, 2014, Defendant Austin Smith served an Offer of Judgment on Plaintiff and his attorney in the amount of $375.00, plus any "legally recoverable and reasonable attorney fees and costs, accrued to date, in an amount to be set by the Court." (Dkt. 27.) On December 1, 2014, Onosko filed, through counsel, a notice of acceptance of the offer of judgment. (Dkt. 28.) The Court then entered judgment on December 2, 2014, in the amount of $375.00. (Dkt. 30.) Onosko later filed a bill of costs, which was taxed against Smith in the amount of $1, 080.60 for the court filing fee of $400.00 and deposition costs of $680.00. (Dkt. 38.)
Onosko's motion for attorney fees, as amended, requests an award of fees under 42 U.S.C. § 1988. He requests fees not only for the time spent by Ms. Bilodeau after she filed her notice of appearance, but also for all legal services performed by Ms. Bilodeau during the time Onosko represented himself pro se, and for fees incurred after the date the offer of judgment was served.
Ms. Bilodeau entered into three letter agreements with Onosko. The first, dated August 13, 2014, indicated Ms. Bilodeau agreed to provide "limited attorney services" to Onosko restricted to legal research, analysis, and assistance with drafting memoranda. The engagement did not include in-court or out-of-court legal representation, and Onosko agreed to "continue to represent [himself] in all in-court and out-of-court proceedings, " retaining the ability to use Ms. Bilodeau's written product "in any way [he] saw fit." This agreement was later amended on August 20, 2014, to include Ms. Bilodeau's draft of a summary judgment memorandum and assistance to Onosko in preparing for an upcoming deposition where Onosko would be deposing Defendant Smith. Between August 13, 2014, and November 13, 2014, Ms. Bilodeau billed her services at the rate of $100.00 per hour, and spent 120.1 hours.
On November 14, 2014, the fee agreement was amended a third time. Now, Ms. Bilodeau and Onosko agreed to expand the scope of Ms. Bilodeau's services to include "full legal representation" and to assume full responsibility for Onosko's representation, including all court appearances. Under this amendment, Ms. Bilodeau would bill her services at the rate of $200.00 per hour. She spent 2.8 hours between November 18, 2014, and November 21, 2014,  which time included 1.2 hours drafting and filing the notice of appearance.
Ms. Bilodeau is admitted to the Idaho State Bar and has been licensed to practice law in Idaho since 2012. In support of the fee request, Ms. Bilodeau submitted the affidavit of Linda Pall, who has been licensed to practice law for 29 years and who currently practices in the Moscow, Idaho community. According to Ms. Pall, the typical average hourly rate for an experienced attorney in Moscow, Idaho, who is the lead attorney for a party in a Section 1983 civil rights case, is between $150 and $200 per hour, depending upon the attorney's experience, the scope of the case, and the complexity of the issues raised in the matter. Ms. Pall charges $250.00 per hour for her time in civil rights cases.
Onosko argues he is entitled to recover attorney fees for the following reasons: (1) Onosko enjoyed an attorney-client relationship with Ms. Bilodeau; (2) other courts have allowed pro se litigants to recover attorney fees for third-party counsel; and (3) there are no special circumstances that warrant the denial of fees, and the balance of equities favors the award of fees. Smith contests any award of fees save for a fee of $420.00 because, under the first and second agreements, there was no attorney-client relationship, and special circumstances exist to justify denying an award of fees, including public policy and ethical considerations. Further, Smith asserts the fees claimed are unreasonable, both in terms of the time spent and because of the $200.00 per hour rate charged after November 14, 2014.
In any action to enforce a provision of 42 U.S.C. § 1983, the Court, "in its discretion, 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. The purpose of Section 1988 is to encourage litigation protecting civil rights, and enable potential plaintiffs to obtain the assistance of competent counsel in doing so. Kay v. Ehrler, 499 U.S. 432, 436 (1991). The overriding statutory concern is the "interest in obtaining independent counsel for victims of civil rights violations." Kay, 499 U.S. at 437.
To that end, the courts examine whether a "paying relationship" exists between an attorney and a client, whether the attorney is functioning as an objective and independent agent, and whether an attorney-client relationship exists. Id. at 435-36. But, pro se litigants, whether they be untrained in the law or licensed to practice law, are not entitled to attorney fees under Section 1988. Id. at 435, 436. The United States Supreme Court explained that a rule authorizing an award "of counsel fees to pro se litigants-even if limited to those who are members of the ...