Robinson v. City of St. Louis, Missouri

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

KAYLA ROBINSON, )

)

Plaintiff, )

)

vs. ) Case No. 4:17-CV-156 PLC

)

CITY OF ST. LOUIS, MISSOURI, et al, )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff Kayla Robinson’s motion for attorney fees and

costs pursuant to 42 U.S.C. § 1988 [ECF No. 158] and motion for bill of costs [ECF No. 157].

Defendant Angela Hawkins (“Defendant”) opposes the motion for attorney fees. [ECF No. 167]

I. Background

In November 2016, Plaintiff filed an action against five1 defendants pursuant to 42 U.S.C.

§ 1983 alleging constitutional violations arising from a traffic stop and strip search performed by

Defendant, then an officer with the St. Louis Metropolitan Police Department (SLMPD). [ECF

No. 3] In her first amended complaint, Plaintiff alleged the following six counts: unreasonable

search and use of excessive force against Defendant (Counts I and II); municipal liability claims

against the St. Louis Board of Police Commissioners (Counts III, IV, V); and civil conspiracy

1 Plaintiff’s original complaint named as defendants: Angela Hawkins and Kelli Swinton, then

officers with the St. Louis Metropolitan Police Department (SLMPD); Lawrence O’Toole,

lieutenant colonel for the SLMPD; Samuel Dotson, chief of police for the SLMPD; and the City

of St. Louis. [ECF No. 3] Plaintiff later recognized that the City of St. Louis was not a proper

defendant and filed an amended complaint naming the St. Louis Board of Police Commissioners

and its individuals members in their official capacities. [ECF No. 18] Plaintiff voluntarily

dismissed Defendants O’Toole and Dotson in April 2018. [ECF Nos. 82 & 83]

against Defendant, Officer Swinton, and Lieutenant Colonel O’Toole. [ECF No. 18]

Plaintiff moved for partial summary judgment on her section 1983 claim for unreasonable

search in violation of the Fourth and Fourteenth Amendments of the United States Constitution.

[ECF No. 50] The defendants sought summary judgment on all counts. [ECF No. 53] This Court

denied Plaintiff’s motion for partial summary judgment. [ECF No. 84] As to the defendants’

motion for summary judgment, the Court: (1) denied summary judgment on Plaintiff’s claims for

unreasonable search, excessive force, and civil conspiracy; (2) dismissed Plaintiff’s official

capacity claims against Defendant and Officer Swinton; and (3) dismissed Plaintiff’s municipal

liability claims against the St. Louis Board of Police Commissioners and its individual members.

[Id.]

Defendant and Officer Swinton filed an interlocutory appeal to the United States Court of

Appeals for the Eighth Circuit. Robinson v. Hawkins, 937 F.3d 1128 (8th Cir. 2019). The Eighth

Circuit: (1) affirmed this Court’s denial of summary judgment on Plaintiff’s unreasonable search

claim; (2) and reversed this Court’s denial of summary judgment on Plaintiff’s civil conspiracy

and excessive force claims. Id. at 1138.

The Court held a three-day trial on Plaintiff’s unreasonable search claim, and the jury found

in favor of Plaintiff and against Defendant. The jury awarded Plaintiff $200,000 in actual damages

and $100,000 in punitive damages. The Court entered judgment in accordance with the verdict.

[ECF No. 155]

Plaintiff moves for attorney fees pursuant to 42 U.S.C. § 1988, litigation costs and expenses

pursuant to 28 U.S.C. § 1920, and post-judgment interest pursuant to 28 U.S.C. § 1961. [ECF No.

158] More specifically, Plaintiff asserts that she is the prevailing party and requests: (1)

reasonable attorney fees in the amount of $640,205.00 with a lodestar multiplier of 1.5, for a total

of $960,307.50; (2) $6,254.14 in costs and expenses; and (3) a post-judgment interest at a rate of

1.43 percent.2 [ECF No. 159] Defendant does not dispute that Plaintiff is the prevailing party but

argues that Plaintiff’s counsel’s hourly rates are unreasonable and the hours worked on this matter

are excessive. [ECF No. 159]

II. Standard for awarding fees under Section 1988

42 U.S.C. section 1988(b) provides that a district court, “in its discretion, may allow the

prevailing party … a reasonable attorney’s fee as part of the costs” in a section 1983 action. A

plaintiff prevails “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.” Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (quoting Farrar v. Hobby,

506 U.S. 103, 111-12 (1992)).

A party seeking attorney fees “‘bears the burden of establishing entitlement to an award

and documenting the appropriate hours expended and hourly rates.’” El–Tabech v. Clarke, 616

F.3d 834, 842 (8th Cir. 2010) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). 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 determine the amount of reasonable attorney fees, courts employ the “lodestar” method

2 In her memorandum in opposition to Plaintiff’s motion for attorney fees, litigation costs, and

interest, Defendant states: “Defendant does not object to Plaintiff’s bill of costs.” [ECF No. 167

at 17] Additionally, Defendant “agrees that Plaintiff is entitled to interest pursuant to” 28 U.S.C.

§ 1961, but asserts that the appropriate rate is 1.21 percent. [Id.] In her reply, Plaintiff “concurs

with Defendant that the applicable post-judgment interest rate is 1.21%.” [ECF No. 177 at 2-3]

Accordingly, the Court will grant Plaintiff’s request for costs in the amount of $6,254.14 and post-

judgment interest at a rate of 1.21 percent.

and multiply the number of hours reasonably expended by a reasonable hourly rate.3 Id. at 433.

The lodestar “provides an objective basis on which to make an initial estimate of the value of a

lawyer’s services,” but does not end the inquiry. Id. Various considerations may lead a district

court to adjust the fee “upward or downward,” but many of these calculations will have been

“subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.”

Id. at 434 & n.9. A district court has “broad discretion” in determining the amount of an attorney

fee award. Keslar v. Bartu, 201 F.3d 1016, 1017 (8th Cir. 2000) (per curiam).

III. Discussion

A. Hourly rate

Plaintiff requests hourly rates of: $500.00 for attorneys, Jeremy Hollingshead, Nicholas

Dudley, and Thomas Applewhite; $400 for attorney John Moffitt; $300 for attorneys Katie Rhoten,

Benjamin Coudret, and Taylor Pike; $150 for “trial paralegal” Jessica Rials and law clerks

Benjamin Coudret4 and Matthew Williams; and $100 for paralegals Brandi Cross and Melissa

Heisner. [See ECF No. 159-29] In support of her request, Plaintiff submits a 2019 survey of

billing rates published by Missouri Lawyers Weekly, which provides that the median hourly rates

3 When calculating the lodestar amount, courts consider the following twelve factors:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the

skill requisite to perform the legal service properly; (4) the preclusion of 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.

Hensley, 461 U.S. at 430 n. 3.

4 According to Plaintiff’s exhibits, Benjamin Coudret was a law clerk at Hollingshead & Dudley

until he became an attorney in September 2017. [ECF No. 159-20]

at St. Louis law firms are $390 for partners and $298 for associates.5 [ECF No. 159-22]

Additionally, Plaintiff’s attorneys filed affidavits setting forth their legal education and legal

experience to support their requested hourly rates.

Defendant challenges only the requested $500 per hour rate of attorneys Hollingshead,

Dudley, and Applewhite. She argues that $500 per hour is unreasonable because: (1) it is higher

than the prevailing standard for similar work within the St. Louis market; and (2) Plaintiff’s

attorneys’ resumes and experience do not support such a rate. Defendant asserts that a reasonable

rate for Mr. Hollingshead and Mr. Dudley is between $375 and $400 per hour, and a reasonable

hourly rate for Mr. Applewhite is between $300 and $350 per hour.

A reasonable hourly rate is usually the ordinary rate for similar work in the community

where the case has been litigated. Little Rock Sch. Dist. v. Arkansas, 674 F.3d 990, 995 (8th Cir.

2012). When determining reasonable hourly market rates, district courts may rely on their own

experience and knowledge of prevailing rates in the community. See Hanig v. Lee, 415 F.3d 822,

825 (8th Cir. 2005). Additionally, “the special skill and experience of counsel should be reflected

in the reasonableness of the hourly rates.” Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir.

1991) (quotation omitted). “A reasonable fee is ‘one that is adequate to attract competent counsel,

but ... [that does] not produce windfalls to attorneys.’” McDonald v. Armontrout, 860 F.2d 1456,

5 The Missouri Lawyers Weekly billing rate survey of 2019 reports the following rates for

attorneys with the law firm Hollingshead & Dudley:

$400 Jeremy D. Hollingshead Partner St. Louis

$400 Nicholas Dudley Partner Kansas City

$300 John Moffitt III Attorney St. Louis

$300 Katie Rhoten Associate St. Louis

$200 Ben Coudret Associate St. Louis

$100 Jessica Rials Paralegal St. Louis

$100 Melissa Heisner Paralegal St. Louis

[ECF No. 159-22 at 4]

1458 (8th Cir. 1988) (alterations in original) (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)).

1. Jeremy Hollingshead and Nicholas Dudley

In his affidavit, Mr. Hollingshead, the lead attorney in this case, attested that he graduated

from University of Missouri – Columbia law school in 2007 and joined the Missouri Bar in 2008.

[ECF No. 159-23 at ¶¶ 2 & 16] Since 2014, “nearly all of [his] personal practice … has been

devoted to civil rights cases[.]” [Id. at ¶ 5] Mr. Hollingshead stated that he has litigated “well in

excess of 500 cases in various state and federal court jurisdictions” and has “tried to verdict (as

first chair) approximately 20 jury trials[.]” [Id. at ¶¶ 6 & 10]

Mr. Dudley submitted an affidavit stating that he graduated from the University of

Minnesota law school in 2010 and joined the Missouri Bar the same year. [ECF No. 159-24 at ¶

2] Mr. Dudley averred that he has “been directly involved in litigating approximately 100 civil

rights cases including cases brought pursuant to the Missouri Human Rights Act, 42 U.S.C. § 1981,

and 42 U.S.C. § 1983” and he has “tried (as first chair) approximately 15 jury trials.” [Id. at ¶¶ 5

& 8]

In her reply brief, Plaintiff acknowledges that, in May 2020, a Missouri circuit court

reduced Mr. Hollingshead’s and Mr. Dudley’s requested hourly rates to $400 per hour. [ECF No.

177 at 6 (citing Harrison v. Harris Stowe University, No. 1722-CC01238)] Plaintiff suggests that

the instant case is distinguishable from Harrison, and therefore warrants a higher hourly rate,

because it is a section 1983 case tried in federal court and not a retaliatory discharge claim tried in

state court. Plaintiff further argues that, between the time of the Harrison trial in December 2019

and Plaintiff’s trial in February 2020, Mr. Hollingshead and Mr. Dudley gained considerable trial

experience justifying a higher hourly rate.

Plaintiff fails to adequately support her claim that Mr. Hollingshead’s and Mr. Dudley’s

requested hourly rates are reasonable. To the contrary, the 2019 billing rate survey from Missouri

Lawyers Weekly demonstrates that $500 per hour is considerably higher than the median rates for

law partners in St. Louis. Moreover, their reported hourly rates in that survey were $400 per hour,

not $500 per hour. To the extent that Plaintiff argues that her attorneys should receive a higher

rate for section 1983 cases than they do for employment discrimination cases, she fails to provide

any supporting authority.

Recent decisions by this District further support a reduction in Mr. Hollingshead’s and Mr.

Dudley’s hourly rates. In Holmes v. Slay, the court reduced attorney Jon Loevy’s hourly rate from

$520 to $450, and approved the following hourly rates: $400.00 for Richard Dowd, Douglas

Dowd, and Roshna Keen; $350 for Laura Lumaghi and Rachel Steinback; $335 for Alex Lumaghi;

$330.00 for David Owen; and $250.00 for Sarah Grusin. No. 4:12-CV-2333 HEA, 2017 WL

994473, at * 3 (E.D. Mo. Mar. 15, 2017). In S.M. v. Lincoln Cnty., this Court approved the

following hourly rates: $450 for attorney Beevis Shock; $375 for attorney Michael Fagras; and

$350 for Hugh Eastwood.6 No. 4:12-CV-2276 PLC, 2016 WL 6441587, at *7 (E.D. Mo. Nov. 1,

2016). See also Banks v. Slay, No. 4:13-CV-2158 ERW, 2016 WL 5870059, at *2 (E.D. Mo. Oct.

7, 2016) (reduced Bob Herman’s requested hourly rate from $450 to $355, and approved hourly

rates of $325 for Kenneth Romines and $250 for Edward Wells); Fletcher v. Tomlinson, No. 4:14-

CV-999 RLW, 2016 WL 6069497, at *6 (E.D. Mo. Oct. 14, 2016) (approving hourly rates of $450

for Phillip Tatlow and Mark Zoole and $250 for Jeffrey Herman); Abdullah v. Cnty. of St. Louis,

Mo., No. 4:14-CV-1436 CDP, 2015 WL 5638064, at *2 (E.D. Mo. Sep. 24, 2015) (approving

Anthony Rothert’s hourly rate of $350). Based upon a review of Plaintiff’s affidavits and the

6 According to their affidavits submitted in support of the motion for attorney fees in S.M., those

attorneys had thirty years’, twenty-two years’, and seven years’ experience, respectively. No.

4:12-CV-2276 PLC, ECF No. 203.

market rates for attorneys in St. Louis, the Court finds that an appropriate hourly rate for Mr.

Hollingshead and Mr. Dudley is $400 per hour.

2. Thomas Applewhite

In his affidavit, Mr. Applewhite stated that he graduated from St. Louis University law

school in 2011 and joined the Missouri Bar in 2012. [ECF No. 159-25 at ¶ 2] He averred that he

had “been involved in more than two dozen civil rights cases” and has “been awarded $485 per

hour multiple times in other contingency hourly cases in Missouri State Court.” [Id. at ¶¶ 4 & 14]

Mr. Applewhite submitted (1) an order entered by the Circuit Court of the City of St. Louis in a

class action approving Mr. Applewhite’s hourly fee of $485; and (2) Mr. Applewhite’s motion for

additional attorney fees filed in a different case in the Circuit Court of the City of St. Louis

requesting an award of attorney fees at an hourly rate of $485. [ECF No. 159-16]

At the time of Plaintiff’s trial, Mr. Applewhite had approximately seven years’ experience.

Mr. Applewhite requests an hourly rate of $500, which is higher than the hourly rates this District

has awarded civil rights attorneys with considerably more experience. See, e.g., Holmes, 2017

WL 994473, at * 3; S.M., 2016 WL 6441587, at *7; Banks, 2016 WL 5870059, at *2. Based on

Mr. Applewhite’s legal experience and the prevailing market rates in St. Louis, the Court finds

that $350 per hour is appropriate.

B. Hours expended

Plaintiff seeks reimbursement for 1,379 hours of attorney work and 69.1 hours of law clerk

and paralegal work.7 [See ECF No. 159-29] According to Plaintiff, the hours established by her

7 Plaintiff seeks to recover for hours expended by her attorneys as follows:

Jeremy Hollingshead 721 hours x $500 $360,500.00

Nicholas Dudley 197.6 hours x $500 $98,800.00

Thomas Applewhite 163.0 hours x $500 $81,500.00

John Moffit 5.8 hours x $400 $2,320.00

attorneys’ affidavits and time records, which were derived from contemporaneous records, were

reasonable and her attorneys excluded “any time that was expressly related to claims on which

Plaintiff did not prevail[.]” [ECF No. 159 at 11] Finally, she asserts that she is entitled to “the

full award of [her attorneys’] work on Plaintiff’s interlocutory appeal because her unsuccessful

claim against the other defendants was related to her successful claim against Defendant

Hawkins.” [Id. at 13]

Defendant maintains that “Plaintiff’s counsel billed excessive hours to the case and used

too many lawyers at trial and for the appeal.” [ECF No. 167 at 5] More specifically, Defendant:

(1) argues that Plaintiff’s counsel overstaffed the oral argument and trial; and (2) disputes as

excessive the amount of time Plaintiff’s attorneys expended for meetings, “debriefings,”

conferences, Plaintiff’s partial summary judgment motion, clerical work, and reviewing docket

entries. Additionally, Defendant urges the Court to reduce Plaintiff’s attorney fees because: (1)

four out of six of Plaintiff’s claims were distinct from her unreasonable search claim and dismissed

before trial; and (2) Plaintiff’s claim against Defendant arose from a “short altercation” and did

not involve complex legal issues.8

Katie Rhoten 10.9 hours x $300 $3,270.00

Benjamin Coudret 279.5 hours x $300 $83,850.00

Taylor Pike 2.7 hours x $300 $810.00

[ECF Nos. 159-29 & 159-15] Plaintiff also seeks compensation for hours worked by legal staff

as follows:

Jessica Rials 30.2 hours x $150 $4,530.00

Benjamin Coudret 14 hours x $150 $2,100.00

Mathew Williams .7 hours x $150 $105.00

Brandi Cross 6.2 hours x $100 $620.00

Melissa Heisner 18 hours x $100 $1,800.00

[EF No. 159-29]

8 In Plaintiff’s reply to Defendant’s memorandum in opposition to Plaintiff’s motion for an award

of reasonable attorney fees, Plaintiff directly addresses only Defendant’s arguments that Plaintiff’s

counsel requests fees for excessive meetings and overstaffing the trial. [ECF No. 177] In regard

to Defendant’s remaining challenges, Plaintiff asserts generally that Defendant’s “complaints are

When calculating attorney fees, a court should exclude hours that were not “reasonably

expended,” such as “hours that are excessive, redundant, or otherwise unnecessary[.]” El-Tabech,

616 F.3d at 842 (quoting Hensley, 461 U.S. at 433-34). “A party [in a civil rights action] is not

entitled needlessly to accumulate exorbitant legal fees with the expectation that the losing party

will be called upon to pick up the entire tab.” Planned Parenthood of Minn., Inc. v. Citizens for

Cmty. Action, 558 F.2d 861, 871 (8th Cir. 1977).

1. Overstaffing

Defendant argues that Plaintiff’s counsel overstaffed the case. [ECF No. 167] More

specifically, she contends that, because the case “was not complex factually, as it involved two

witnesses describing a short interaction between police and citizens that are the type of fact patterns

that parties routinely litigate,” Plaintiff’s use of three attorneys on the appeal and at trial was

excessive. [Id. at 13] Plaintiff replies that “[h]aving three attorneys prepare for and conduct a jury

trial allows individual trial counsel to better conduct the trial[.]” [ECF No. 177 at 10 (emphasis in

original)] Plaintiff does not address Defendant’s claim that three attorneys working on the appeal

was excessive.

“While there exists no per se rule prohibiting a litigant from having more than one attorney

work on [her] case,” Ladd v. Pickering, 783 F.Supp.2d 1079, 1094 (E.D. Mo. 2011), “[a] court

may reduce attorney hours, and consequently fees, for inefficiency or duplication of services in

cases where more than one attorney is used.” Lee ex rel. Lee v. Borders, No. 4:09-CV-1977 TIA,

2014 WL 4811907, at *5 (E.D. Mo. Sept. 26, 2014) (quoting A.J. ex rel. L.B. v. Kierst, 56 F.3d

849, 864 (8th Cir. 1995)). When determining whether a case was over-lawyered, “[t]he trial judge

too general to allow for a reduction in hours” and Defendant “should have more specifically

targeted what [billing submissions] should have been deleted.” [Id. at 10]

should weigh the hours claimed against his [or her] own knowledge, experience, and expertise of

the time required to complete similar activities.” Gilbert v. City of Little Rock, Ark., 867 F.2d

1063, 1066 (8th Cir. 1989) (alteration in original) (quotation omitted).

In regard to the interlocutory appeal, Plaintiff’s counsel’s billing records reveal that, while

Mr. Coudret outlined and presented the oral argument, both Mr. Hollingshead and Mr. Dudley

participated extensively in the preparation and attended the argument. [ECF No. 159-2] Mr.

Hollingshead expended: 10.6 hours in meetings and conversations with Mr. Coudret “re oral

argument strategy/outline,” “oral argument prep,” and “recommended changes to Coudret’s oral

argument outline”; 8 hours in “oral argument practice rounds” and “final prep for oral arguments”;

and 4.5 hours traveling for and attending the oral argument. [Id.] Mr. Dudley spent: 5.7 hours

reviewing and discussing “oral argument strategy,” “oral argument outline and suggested edits,”

and “oral argument”; 8 hours in “oral argument practice rounds” and “final prep for oral

arguments”; and 4.5 hours traveling for and attending the oral argument. The time expended by

Mr. Hollingshead and Mr. Dudley was in addition to the 39.2 hours that Mr. Coudret spent

preparing for and presenting the oral argument. The Court agrees with Defendant that three

attorneys preparing for and attending the oral argument was excessive. Cf. Little Rock Sch. Dist.,

674 F.3d at 995 (reasonable for two attorneys to attend oral argument in a complex, thirty-year

school desegregation case).

The Court also agrees with Defendant that staffing the trial with three partner-level

attorneys was excessive for the demands of the case. After the Eighth Circuit remanded the case

to this Court and four weeks prior to the commencement of trial, Mr. Hollingshead and Mr. Dudley

enlisted the help of Mr. Applewhite. Mr. Applewhite’s engagement resulted in excessive meetings

and conferencing and duplicative efforts. For example, Mr. Applewhite expended approximately

11.5 hours reviewing the file and conferring with Mr. Hollingshead about “joining team” and “trial

preparation.” [ECF No. 159-15] Mr. Hollingshead billed an additional 3.9 hours for those

conversations. [ECF No. 159-2] See, e.g., Abdullah, 2015 WL 5638064, at *2-3 (E.D. Mo. Sept.

24, 2015) (“[C]harging fees for four attorneys and one litigation specialist to travel to and attend

an eight-hour hearing that could have been handled by two attorneys is excessive.”); Walton v.

Dawson, No. 2:11-CV-48 JCH, 2015 WL 331628, at *3 (E.D. Mo. Jan. 26, 2015) (“matter was

overlawyered” where three attorneys participated in trial); Denesha v. Farmers Ins. Exch., 976

F.Supp. 1276, 1291 (W.D. Mo. 1997) (rev’d in part on other grounds, 161 F.3d 491 (8th Cir. 1998)

(“The Court will not require defendant to pay for time spent educating additional counsel about

the case one month before trial.”).

As previously stated, this was not a factually or legally complex case. The facts of the case

related primarily to the events of a single night. The trial lasted only three days and involved only

two parties, one unreasonable-search count, and a handful of witnesses. The Court therefore finds

that the involvement of three partner-level attorneys in this straightforward section 1983 case was

excessive. See Dorr v. Weber, 741 F.Supp.2d 1022, 1036 (N.D. Iowa) (“three attorneys were

simply not necessary in this simple § 1983 action”); Denesha, 976 F.Supp. at 1291 (“[T]he issues

in the case were not so complex that they warranted three counsel for plaintiff throughout trial.”).

2. Communications between co-counsel

Defendant contends that Plaintiff’s attorneys billed excessive time for meetings,

“debriefings,” and conferences. Defendant maintains that these sessions were excessive in their

frequency and length “particularly in light of the fact that Plaintiff’s counsel are seeking payment

as experienced lawyers at partner level at $500 per hour.” [ECF No. 167 at 10-11] In reply,

Plaintiff asserts that meetings are “valuable strategic tools, not just information sharing sessions.”

[ECF No. 177 at 9]

After reviewing Plaintiff’s counsel’s billing entries, the Court agrees with Defendant that

the submissions contain excessive entries for “conversations,” “meetings,” and “debriefings.”

[See ECF No. 159-2] For example, on February 23, 2017, two attorneys billed one hour for

“debriefing Rule 16 conference.” [Id.] On April 6, 2017, an attorney, a paralegal, and two law

clerks each billed twelve minutes for discussing service of summons. [Id.] On October 30, 2017,

a partner and associate each billed 1.3 hours for “conversation … re depo prep status.” [Id.] Later

that day, the two attorneys billed thirty-six minutes discussing Plaintiff’s deposition and another

1.1 hours for “conversations … re ongoing depositions.” [Id.] On November 21 and December

22, 2017, three attorneys met for eighteen minutes and forty-eight minutes to discuss filing under

seal. [Id.] On December 20 and 21, 2017, a partner and an associate billed forty-eight minutes

and 1.8 hours for conversations relating to a response to a motion for summary judgment. [Id.] In

April 2018, three attorneys and one paralegal billed 30.2 hours in a single day for conversations

and meetings relating to pretrial tasks, pretrial materials, and trial strategy. [Id.] The following

day, they billed another 10.1 hours for conversations relating to pretrial materials and trial tasks,

11.1 hours for conversations relating to trial strategy, and 3.9 hours for trial team meetings

regarding the “impact of court’s summary judgment order[.]” [Id.]

The Court recognizes the value in attorneys working collaboratively. In this case, however,

the billing records reflect excessive time spent conversing, meeting, and debriefing. See, e.g., Lee

ex rel. Lee, 2014 WL 4811907, at *5; Fancher v. Klann, No. 13-435 (DSD/JJK), 2015 WL

1810235, at *2 (D. Minn. Apr. 21, 2015). In light of the foregoing, together with the Court’s

judgment of the amount of time required to litigate a case of the complexity presented here, the

Court reduces Plaintiff’s requested attorney fees for excessive time spent on communications

between co-counsel.

3. Plaintiff’s motion for partial summary judgment

Defendant urges the Court to deny Plaintiff attorney fees for the time that her counsel

expended on Plaintiff’s motion for partial summary judgment because it was “ill[-]conceived and

meritless.” [ECF No. 167 at 15-16] Defendant cites no authority in support of her position that

Plaintiff is not entitled to attorney fees for time expended on an unsuccessful motion for partial

summary judgment.

“Simply because an attorney loses a motion in an otherwise successful litigation does not

necessarily mean attorneys’ fees should not be awarded for time spent on the unsuccessful

[motion].” Bowers v. Cornell Roofing & Sheet Metal Co., No. 18-00434-CV-W-JTM, 2019 WL

4888626, at *1 (W.D. Mo. July 9, 2019). See also Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir.

2001) (“[T]he court should not simply deny fees for particular matters on which the plaintiff did

not prevail.”). “The fact that [a plaintiff] did not prevail on every motion and every argument does

not detract from her victory, nor does it mean that time spent litigating unsuccessful motions was

unreasonable.” Miller v. Bd. of Regents of Univ. of Minn., 402 F.Supp.3d 568, 594 (D. Minn.

2019). The Court did not conclude at the time of the ruling, nor does it now find, that the motion

for partial summary judgment was either frivolous or improper. Accordingly, the Court will not

reduce Plaintiff’s fee award for time spent on the unsuccessful partial summary judgment motion.

4. Clerical work and review of docket entries

Defendant claims that Plaintiff’s counsel is not entitled to attorney fees for clerical work,

such as “making photocopies, mailing documents, and similar tasks.” [ECF No. 167 at 14]

Additionally, Defendant argues that Plaintiff’s counsel “submitted time for numerous individuals

reviewing docket entries, for which they routinely charge six minutes, when reviewing such entries

take seconds.” [Id. at 15]

A plaintiff is not entitled to attorney fees for work that is clerical in nature. See Ladd, 783

F.Supp.2d at 1094; Sellers v. Peters, 624 F.Supp.2d 1064, 1069 (E.D.Mo. 2008); Lee ex rel. Lee,

2014 WL 4811907, at *6. Likewise, “purely clerical or secretarial tasks should not be billed at a

paralegal rate, regardless of who performs them.” Missouri v. Jenkins by Agyei, 491 U.S. 274,

288 n. 10 (1989). Tasks considered clerical include: filing pleadings, scheduling depositions,

securing court reporters, calendaring dates, reviewing emails from court clerk, coordinating the

creation of binders, making photocopies, mailing documents, and scanning exhibits. See, e.g., Jo

Ann Howard & Assocs., P.C. v. Cassity, No. 4:09-CV-1252 ERW, 2020 WL 870987, at *10 (E.D.

Mo. Feb. 21, 2020); Davis v. Lancaster, No. 4:13-CV-1638 HEA, 2019 WL 265098, at *4 (E.D.

Mo. Jan. 18, 2019); Lee ex rel. Lee, 2014 WL 4811907, at *6; Sellers, 624 F.Supp.2d at 1069.

Time spent “reviewing nonsubstantive docket entries,” such as opposing counsel’s entry of

appearance, are also deemed clerical and shall be disallowed. Walters v. City of Hazelwood, Mo.,

No. 4:09-CV-1473 CEJ, 2013 WL 3984464, at *3 (E.D. Mo. Aug. 1, 2013).

While Defendant correctly asserts that Plaintiff cannot recover attorney fees for clerical

work, she does not identify and total the challenged billing entries. Defendant states generally

that “Mr. Hollingshead billed 8.9 hours for tasks such as filing and downloading materials,” but

she does not point to specific examples in the billing records. Nor does she identify examples of

Plaintiff’s counsel’s submissions for reviewing court docket entries. “Judge are not accountants;

they are not auditors. They do not have the luxury of putting on a green eyeshade and devoting

hundreds of hours to reviewing billing entries.” Miller, 402 F.Supp.3d at 595 (quoting Fox v.

Vice, 563 U.S. 826, 838 (2011). Reviewing “hundreds of time-sheet entries and determin[ing]

whether each was appropriate [] is beyond the capacity of this or any other court.” Id. at 594-95.

Nevertheless, upon review of the billing records, the Court notes Mr. Hollingshead’s

submissions for administrative tasks such as: reviewing docket entries for items such as entries of

appearance and motions for extensions of time; filing certificates of service and motions; saving

electronically docketed pleadings and orders “into the client’s computer folder”; calendaring

deadlines on the firm’s client management system; “emails to/from court reporter”; “saving and

printing of Defendant’s pretrial materials”; and “notarizing, scanning, and saving … affidavit for

motion for fees.” [ECF No. 159-2] Additionally, paralegal Melissa Heisner billed time spent on

clerical work, such as calendaring deadlines, saving documents “in the client’s computer file,” and

scanning documents. [Id.] “These types of entries are not legal work,” Jo Ann Howard & Assocs.,

2020 WL 870987, at *10, and Plaintiff is not entitled to compensation for this time.

5. Motion for attorney fees

Defendant argues that Plaintiff’s request for approximately $30,000 in fees for preparation

of the fee application is unreasonable. [ECF No. 167] In support of her position that Plaintiff’s

counsel expended an unreasonable number of hours on the present motion, Defendant states that,

given Plaintiff’s recent submission of a motion for attorney fees in Harrison, “a good portion of

the work could [] have been done by a paralegal or clerical staff cutting and pasting and [] very

little attorney input would be required.” [Id. at 17]

“Time spent preparing fee applications is generally compensable,” but must not be

excessive for the work completed. El-Tabech, 616 F.3d at 843-44 (77.7 hours spent on reply brief

in support of motion for attorney fees was excessive). Here, Mr. Applewhite, who drafted the

application for attorney fees, expended 27.3 hours on that task. [ECF No. 159-15] Mr.

Hollingshead billed an additional 24.0 hours working on the same application. [ECF No. 159-2]

Over six days of attorney work to prepare the motion or attorney fees is excessive. See, e.g.,

Sharpe Holdings, Inc. v. United States Dep’t of Health & Human Servs., No. 2:12-CV-92 DDN,

2018 WL 3772223, at *4 (E.D. Mo. Aug. 9, 2018) (“A claim of five days of attorney work on the

reply memorandum and over seven days of attorney work to prepare the initial motion is

excessive.”); Freeman v. MH Equip. Co., No. 4:15-CV-1473 CDP, 2017 WL 76907, at *2 (E.D.

Mo. Jan. 9, 2017) (33.2 hours preparing fee application was excessive); Ladd, 783 F.Supp.2d at

1094 (46.0 hours of attorney work preparing fee application was excessive); Rosen v. Wentworth,

13 F.Supp.3d 944, 953 (D. Minn. 2014) (over 60 hours preparing fee application was excessive).

C. Lodestar amount

Given that this case was not novel or overly complex, the Court finds that the case was

overstaffed and the time expended on certain tasks was excessive. Additionally, there was a

significant amount of duplicative work and attorney time billed for work that was clerical in nature.

The Court therefore concludes that a reduction in the number of hours claimed is proper. “Rather

than make a line-by-line cut to account for these issues, the Court will exercise its discretion to

make a percentage reduction.”9 Ladd, 783 F.Supp.2d at 1095. The Court finds that a 20 percent

reduction in the number of hours claimed is appropriate.

Jeremy Hollingshead 721 hours x $400 $288,400.00

Nicholas Dudley 197.6 hours x $400 $79,040.00

9 “A district court may in the exercise of its discretion use a percentage reduction – instead of line-

by-line cuts – as a practical means of reducing fee claims.” Dinosaur Merch. Bank Ltd. v.

Bancservices Int’l LLC, No. 1:19-CV-84 ACL, 2020 WL 3489344, at *3 (E.D. Mo. June 26, 2020)

(reducing one firm’s hours by 50% and the other firm’s hours by75% for “overlawyering and

duplicative work”). See also Rural Water Sys. No. 1 v. City of Sioux Ctr., 202 F.3d 1035, 1039

(8th Cir. 2000) (affirming 45% reduction of attorney fees where the district court reduced the fee

request based on “partial success, excess hours, and duplication.”); Jensen v. Clarke, 94 F.3d 1191,

1203-04 (8th Cir. 1996) (affirming 10% reduction for inadequate documentation and 15%

reduction for partial success); Fletcher, 2016 WL 6069497, at *9 (reducing the plaintiff’s requested

fee by 45% for excessive time charged and time charged for claims against unrelated defendants);

Rosen, 13 F.Supp.3d at 952-53 (reducing requested attorney fee by 50% “for the overbilled or

‘overlawyered’ work, the nature of the case and its ultimate result, the fees requested for clerical

tasks, and the excessive time spent preparing the present motion.”).

Thomas Applewhite 163.0 hours x $350 $57,050.00

John Moffit 5.8 hours x $400 $2,320.00

Katie Rhoten 10.9 hours x $300 $3,270.00

Benjamin Coudret 279.5 hours x $300 $83,850.00

Taylor Pike 2.7 hours x $300 $810.00

Jessica Rials 30.2 hours x $150 $4,530.00

Benjamin Coudret 14 hours x $150 $2,100.00

Matthew Williams .7 hours x $150 $105.00

Brandi Cross 6.2 hours x $100 $620.00

Melissa Heisner 18 hours x $100 $1,800.00

Total (hours requested x approved hourly rates): $523,895.00

$523,895.00 less 20% (or $104,779.00) = $419,116.00

The lodestar amount is $419,116.00

D. Degree of success

Calculation of the lodestar does not end the inquiry. Hensley, 461 U.S. at 434. [ECF No.

159 at 11] In support of her motion for attorney fees, Plaintiff states that “any time that was

expressly related to claims on which Plaintiff did not prevail are excluded from [her counsel’s] fee

card.” 10 [ECF No. 159 at 9] She further asserts, however, that counsel is entitled to a full award

of requested fees for work on the interlocutory appeal, because the unreasonable search, excessive

force, and civil conspiracy claims shared a “common core of facts.” [Id. at 11]

10 However, Plaintiff does not identify either the billing entries or total number of hours excluded.

Mr. Hollingshead’s affidavit in support of the motion for attorney fees does not provide any clarity,

as he attested:

[A]ll discovery propounded on Defendants, correspondence, client meetings etc.

were focused on the collective sum of Plaintiff’s MHRA claims against

Defendants. More specifically, with very few exceptions which were zeroed out

in the Firm’s fee card attached to this Motion, had Plaintiff only filed her MHRA

claim against Defendant Harris-Stowe, all actions taken in this matter would

have occurred regardless.

[ECF No. 159-23 at ¶ 16] Upon review of Plaintiff’s counsel’s time records in this case, the Court

notes that some billing entries appear to relate entirely to Plaintiff’s municipal liability claims on

which this Court granted summary judgment. For example, in November 2017, Mr. Hollingshead

and Mr. Coudret have numerous entries relating to “corporate rep depos.” [ECF No. 159-2]

Defendant argues that the Court should reduce Plaintiff’s attorney fees because “four out

of six unrelated claims were dismissed before trial[.]”[ECF No. 167 at 6] Defendant asserts that

the three dismissed Monell claims and the dismissed civil conspiracy claim “required entirely

different proof than the evidence regarding the interaction between Defendant Hawkins and

Plaintiff,” which formed the basis of Plaintiff’s excessive force and unreasonable search claims.11

[Id.] Plaintiff does not address Defendant’s argument in her reply brief. [See ECF No. 177]

“The most important factor in determining what is a reasonable fee is the magnitude of the

plaintiff’s success in the case as a whole.” Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997)

(en banc). “When a plaintiff obtains substantial relief and the lawsuit consists of closely related

claims, the award is not reduced because [the] plaintiff did not prevail on every argument asserted.”

Shrader v. OMC Alum. Boat Grp., Inc., 128 F.3d 1218, 1220 (8th Cir. 1997) (citing Hensley, 461

U.S. at 435). However, when counsel’s work on a successful claim is unrelated to the work on an

unsuccessful claim, “no fee may be awarded for services on the unsuccessful claim.” Hensley,

461 U.S. at 435. See also Emery, 272 F.3d at 1046 (“When a plaintiff has prevailed on some

claims but not on others, the plaintiff may be compensated for time spent on unsuccessful claims

that were related to his successful claims, but not for time spent on unsuccessful claims that were

‘distinct in all respects from his successful claims.’”) (quoting Hensley, 461 U.S. at 440). In

reducing a request for attorney fees based on limited success, the court may “attempt to identify

specific hours that should be eliminated, or it may simply reduce the award to account for the

limited success.” Hensley, 461 U.S. at at 436-37.

11 In her response in opposition to Plaintiff’s motion for attorney fees, Defendant “agrees that the

unsuccessful excessive force claim was related to Plaintiff’s search claim.” [ECF No. 167 at 6]

Accordingly, Defendant does not challenge Plaintiff’s entitlement to compensation for counsel’s

work on the unsuccessful excessive force claim.

In her original complaint, Plaintiff alleged six counts against five defendants. This Court

resolved Plaintiff’s three municipal liability claims by granting defendants summary judgment

motion, and the Eighth Circuit held that summary judgment was appropriate on Plaintiff’s

excessive force and civil conspiracy claims. As a result, all but one count and one defendant were

dismissed prior to trial.

The Court recognizes that Plaintiff obtained significant relief at trial. “A civil rights

plaintiff who obtains meaningful relief has corrected a violation of federal law and, in so doing,

has vindicated Congress’s statutory purposes.” Fox, 563 U.S. at 834. Additionally, some

discovery relating to the failed claims, particularly with regard to the nature and extent of

Plaintiff’s injury, involved the same common core of facts. See, e.g., Fletcher, 2016 WL 6069497,

at *8. However, the legal theories and evidentiary bases for the municipal liability and civil

conspiracy claims are entirely unrelated to those for the unreasonable search claim. See id. The

Court therefore finds that Plaintiff’s successful reasonable search claim was not so intertwined

with the unsuccessful municipal liability and civil conspiracy claims that all of Plaintiff’s counsel’s

work must be compensable.

A 20 percent fee reduction based on Plaintiff’s limited success is appropriate. See, e.g.,

Wal-Mart Stores, Inc. v. Barton, 223 F.3d 770, 771-71 (8th Cir. 2000) (affirming thirty percent

reduction based on partial success). A 20 percent reduction of the lodestar amount results in a fee

award of $335,292.80 ($419,116.00 lodestar less 20% = $335,292.80)

E. Enhancement

Plaintiff requests that the Court enhance the lodestar because “[t]his was complex civil

rights litigation” and her counsel achieved excellent results. [ECF No. 159 at 13-14] Defendant

counters that an enhancement is inappropriate because Plaintiff “has not established the rare and

exceptional circumstances necessary for such an enhancement.” [ECF No. 167 at 16]

“An upward adjustment to an attorney’s lodestar hourly rate is permissible ‘in certain rare

and exceptional cases, supported by both specific evidence on the record and detailed findings by

the lower courts.’” Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 532 (8th Cir. 1999) (quoting

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)

(internal quotations omitted). The United States Supreme Court has recognized that an

enhancement may be appropriate where: (1) the method used to determine the hourly rate

employed in the lodestar calculation “does not adequately measure the attorney’s true market

value”; (2) “the attorney’s performance includes an extraordinary outlay of expenses and the

litigation is exceptionally protracted”; or (3) there exist “extraordinary circumstances in which an

attorney’s performance involves exceptional delay in the payment of fees.” Perdue v. Kenny A.

ex rel. Winn, 559 U.S. 542, 556 (2010). “The burden of proving that such an adjustment is

necessary to the determination of a reasonable fee is on the fee applicant.” Blum, 465 U.S. at 898.

Plaintiff failed to demonstrate rare and exceptional circumstances justifying a lodestar

enhancement. The Court recognizes that this case involved protracted litigation and Plaintiff’s

counsel obtained excellent results, which is “no small feat for a civil-rights plaintiff.” Ladd, 783

F.Supp.2d at 1096. These factors, however, “are already reflected in the initial determination of

the reasonable hourly rate and number of compensable hours.” Gilbert, 867 F.2d at 1067. To the

extent that any of the issues in this case were “complex,” this factor was “fully reflected in the

number of billable hours recorded by counsel and thus do not warrant an upward adjustment….”

Blum, 465 U.S. at 898. The Court finds that the lodestar amount, as reduced above for partial

success, adequately compensates Plaintiff’s counsel and declines to award an enhancement or

multiplier in this case. See e.g., Forshee, 178 F.3d at 532; Miller, 402 F.Supp.3d at 597.

IV. Conclusion

For the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff's motion for bill of costs [ECF No. 157] is

GRANTED, and her “Motion for an Award of Reasonable Attorney’s Fees, Litigation Costs,

Expenses, and Interest” [ECF No. 158] is GRANTED in part and DENIED in part. Defendant

shall pay Plaintiff $335,292.80 in attorney fees and $6,254.14 in costs.

IT IS FINALLY ORDERED that Plaintiff is entitled to recover post-judgment interest

accruing at arate of 1.21% from the date of the original judgment.

Pirie Fo tehac

PATRICIA L. COHEN

UNITED STATES MAGISTRATE JUDGE

Dated this 12th day of August, 2020

22