Prison Legal News v. Ryan, AZ, Order Granting Attorneys' Fees and Expenses, PLN Censorship, 2024

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Prison Legal News v. Ryan, AZ, Order Granting Attorneys' Fees and Expenses, PLN Censorship, 2024

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Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 1 of 18

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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Prison Legal News,
Plaintiff,

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Charles L Ryan, et al.,

No. CV-15-02245-PHX-ROS
ORDER

Defendants.

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Pending before the Court is Plaintiff’s Motion for Attorneys’ Fees and Expenses

(Doc. 365, “Mot.”) seeking over $2,500,000 in fees and expenses spanning the more than

eight-year life of this case pursuant 42 U.S.C. § 1988. The Court will grant in part and

deny in part Plaintiff’s motion and award $2,370,881.67 in attorneys’ fees and expenses

and $8,426.25 in costs.

BACKGROUND

Plaintiff Prison Legal News filed this suit challenging Arizona Department of

Corrections Order 914, under which the Defendants could prohibit inmates receiving mail

containing “sexually explicit material.” (Doc. 1). The Court granted partial summary

judgment for Plaintiff, (Doc. 260), and entered a permanent injunction requiring

Defendants to amend their order and permit distribution of the censored issues, (Doc. 305).

The Ninth Circuit concluded certain language in Defendants’ policy was unconstitutional

and affirmed Plaintiff’s victory on one as-applied challenge and remanded another of

Plaintiff’s as-applied challenges but otherwise reversed in part and remanded for further

Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 2 of 18

proceedings. (Doc. 341-1). Defendants then revised Order 914 and distributed two

editions of Plaintiff’s publication, (Doc. 343), and the Court entered judgment in favor of

Defendants after the Court concluded there was nothing left to adjudicate, (Docs. 362 and

363). But the Court noted entering judgment in favor of Defendants “should not be

construed as any ruling regarding Plaintiff’s success for purposes of an application for

attorneys’ fees.” (Doc. 362).

Plaintiff then filed a Motion for Attorneys’ Fees and Expenses (Doc. 365) requesting

$2,255,497.65 in fees for merits work and $250,037.55 for work on the fees petition itself.

Defendants argue this amount is excessive and requests the Court reduce the award by 70%

to account for Plaintiff’s “limited success obtained” and further reduce the award by

$657,423.00 for specific challenged billing entries. (Doc. 376, “Resp.” at 30).

FEES MOTION AND LODESTAR CALCULATION

Courts “employ the ‘lodestar’ method to determine a reasonable attorney’s fees

award.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (citing Fischer v. SJB–P.D.

Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). Courts calculate “the lodestar figure by

multiplying the number of hours reasonably expended on a case by a reasonable hourly

rate.” Id. The Court has “considerable discretion” in determining the reasonableness of

attorney’s fees. Webb v. Ada County Idaho, 195 F.3d 524, 527 (9th Cir. 1999). After

calculating the lodestar amount, a Court may reduce or multiply the award based on a

variety of factors. Those factors include: (1) the time and labor required, (2) the novelty

and difficulty of the legal questions involved, (3) the skill required to perform the legal

service properly, (4) other employment precluded 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. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (“Kerr

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Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 3 of 18

factors”).1 Some of these factors are normally subsumed in the lodestar calculation such

that they need not be considered again after the lodestar is determined. See Gonzalez v.

City of Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (identifying factors often considered

when calculating lodestar).

Hourly Rates

The first question is whether Plaintiff’s asserted rate is reasonable. “A reasonable

hourly rate is ordinarily the prevailing market rate in the relevant community.” Sw. Fair

Hous. Council v. WG Scottsdale LLC, No. 19-00180, 2022 WL 16715613 at *3 (D. Ariz.

Nov. 4, 2022) (citing Kelly, 822 F.3d at 1099). And “the burden is on the fee applicant to

produce satisfactory evidence—in addition to the attorney’s own affidavits—that the

requested rates are in line with those prevailing in the community for similar services by

lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465

U.S. 886, 895 n.11 (1984).

Plaintiff correctly asserts courts may apply current market rates in calculating the

lodestar to account for the delay in payment over the eight-year lifespan of this case. Mot.

at 8; see also Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“[A]n appropriate adjustment

for delay in payment—whether by the application of current rather than historic hourly

rates or otherwise—is within the contemplation of the statute.”).

Plaintiff cannot claim its historical rates would be unreasonable because they “far exceed[]

Phoenix market rates.” Resp. at 22. But whether Plaintiff’s claimed rates exceed Phoenix

market rates is inapplicable to determining an adjustment to historical rates to account for

delay. The Court finds an adjustment to 2023 market rates appropriate.

Defendants argue

Plaintiff also asserts San Francisco rates should apply instead of Arizona rates

because Plaintiff “was unable to secure a law firm in Arizona willing or able to take on the

lead counsel role for this case,” as the Ninth Circuit Commissioner found for Plaintiff’s

appellate fee award. Mot. at 8–9 (citing Case. No. 19-17449, Doc. 78 at 3–4). Plaintiff

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Local Rule 54.2 also lists factors the Court must address when determining the
reasonableness of the requested award. These factors are largely duplicative of the Kerr
factors.
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Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 4 of 18

argues the Ninth Circuit’s finding constitutes the “law of the case” and is binding on this

Court in this subsequent proceeding. Id. at 8. Defendants argue Ballard Spahr and Perkins

Coie are “well equipped to litigate high-stakes civil rights cases.” Resp. at 22. And though

Defendants acknowledge those firms could not “sign on as lead counsel for this particular

case,” they argue “this does not warrant the State and its taxpayers being required to pay”

San Francisco rates. Id. Defendants further argue the Ninth Circuit’s findings in its fee

award are limited to the appellate context and do not apply here. Id. at 21–22. While the

Ninth’s Circuit’s finding San Francisco rates apply might not be the “law of the case” as

Plaintiff suggests, it is certainly persuasive where Plaintiff asserts and Defendants do not

meaningfully challenge that no Arizona firms were able to serve as lead counsel in this

case. The Court finds San Francisco rates are appropriate in calculating the lodestar.

In further support of its argument its claimed fees are reasonable, Plaintiff states the

lawyers at Rosen Bien Galvan & Grunfeld LLP (“RBGG”) have a longstanding

relationship with Plaintiff and have “unquestionable expertise in prison and First

Amendment law and cases, including cases specifically addressing First Amendment

access to prisons.” Defendants do not respond specifically to these assertions.

The Court finds that RBGG’s 2023 San Francisco rates apply, and the experience,

reputation, and ability of Plaintiff’s counsel generally support the hourly fees requested in

this case. Accordingly, the Court finds Plaintiff’s rate schedule above is reasonable.

Hours Expended

Under the lodestar method, the prevailing party may recover fees for “every item of

service which, at the time rendered, would have been undertaken by a reasonable and

prudent lawyer to advance or protect his client’s interest.” Gary v. Carbon Cycle Ariz.

LLC, 398 F. Supp. 3d 468, 486 (D. Ariz. 2019) (quoting Twin City Sportservice v. Charles

O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982)). Courts may “exclude from this

initial fee calculation hours that were not reasonably expended.” Hensley v. Eckerhart,

461 U.S. 424, 433-34 (1983) (internal quotations removed); see also McKown v. City of

Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (“In determining the appropriate number of

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hours to be included in a lodestar calculation, the district court should exclude hours that

are excessive, redundant, or otherwise unnecessary.”).

Limited Success

Defendants argue Plaintiff should not recover its requested fees because it achieved

only limited success. Resp. at 9–12. The “extent of a plaintiff’s success is a crucial factor

in determining the proper amount of an award of attorney’s fees.” Hensley v. Eckerhart,

461 U.S. 424, 440 (1983). Where a plaintiff achieves only limited success, courts should

award only fees reasonably related to the results achieved.

congressional intent to limit awards to prevailing parties requires that these unrelated

claims be treated as if they had been raised in separate lawsuits, and therefore no fee may

be awarded for services on the unsuccessful claim.”). In some cases, distinguishing

between work expended on different claims is relatively straightforward. This is not one

of those cases. This case involves “a common core of facts” and it is “difficult to divide

the hours expended on a claim-by-claim basis.” Id. In such cases, “the district court should

focus on the significance of the overall relief obtained by the plaintiff in relation to the

hours reasonably expended on the litigation.” Id.

See id. at 435 (“The

Defendants argue Plaintiff’s limited success in this case justifies a 70% across-the-

board reduction to Plaintiff’s requested fees. Resp. at 12. Defendants’ Response asserts

“Plaintiff ultimately lost the main impetus behind the lawsuit: its claim that Defendants’

publication policy was unconstitutional on its face and must be revamped.” Id. But this

ignores that Plaintiff achieved many of its litigation goals by prevailing on one of its two

facial First Amendment challenges and two of its four as-applied challenges, that

Defendants permanently revised its policy, that Defendants uncensored five issues of its

magazine, and paid Plaintiff $10,000 in damages. (See Doc. 377, “Reply” at 4–5).

Plaintiff applied a 10% across-the-board reduction to its requested fees to account

for any limitations on its success on top of significant discrete reductions to “remove time

clearly identifiable as devoted to issues on which it did not prevail.” Reply at 5; see also

Mot. at 2, 12. The Court finds these reductions, taken together, adequately account for

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Plaintiff’s limited—but still substantial—success in this matter.

ii.

Vague and Ambiguous Billing Entries

Defendants ask the Court to reduce Plaintiff’s fee request by at least $54,399.00 to

account for vague and ambiguous billing entries. Resp. at 13. A party requesting fees must

“maintain billing time records in a manner that will enable a reviewing court to identify

distinct claims.” Hensley, 461 U.S. at 437. Local Rule 54(e)(2) permits the Court to reduce

fee awards where time entries “fail to adequately describe the service rendered.” The Local

Rules require parties seeking fees to “adequately describe the service rendered” by, for

example, identifying participants and the reason for telephone conferences, identify

specific legal issues and (if applicable) the relevant pleading or document for legal

research, and identifying the activities associated with preparation of pleading and other

papers. Id.

Defendants argue a sampling of Plaintiff’s billing entries “lack sufficient specificity

to determine what the attorney was actually working on,” and are “untethered to any

described factual issues or even the First or Fourteenth Amendment claims alleged in the

case.” Resp. at 13. Plaintiff’s Reply asserts its billing records “are not vague, especially

when viewed in context with surrounding entries, and include the level of detail that

[Plaintiff’s] attorneys provide to clients when engaging in fee for services work.” Reply

at 9.

The Court has reviewed the billing entries Defendants identified as vague, see Resp.

Ex. 6, and Plaintiff’s annotated version of Defendants’ table, see Reply Ex. C. These

billing entries provide the necessary information to determine the time worked is

reasonable and appropriate. While many of these entries include general statements about

the content of the work, the context of the entries provides sufficient detail. These are far

from the bare entries the Local Rules contemplate as insufficient. Entries related to

correspondence identify all participants and the subject matter of the correspondence and

entries related to legal research identify the specific legal issues researched. See generally

Resp. Ex. 6, Reply Ex. C. The Court finds reducing the fees award due to the billing

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entries’ purported vagueness or ambiguity is not appropriate.

iii.

Block Billing

Defendants assert they identified $167,090.00 in billing entries constituting

inappropriate block billing and ask the Court to reduce this amount by at least 50% to 70%.

Resp. at 14–15. Courts reducing a fees award based on improper block billing may not

apply an across-the-board reduction to the total fee request but may apply a percentage

reduction to block-billed hours. See Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th

Cir. 2007).

Plaintiff argues block billing “refers to a single time entry for an entire days’ tasks.”

Reply at 8. While this is the definition the Ninth Circuit put forth in Welch, see 480 F.3d

at 945 n.2, this is a particularly narrow view of block billing. Courts within the Ninth

Circuit have applied a broader definition of block billing encompassing entries that contain

multiple discrete and unrelated tasks preventing courts from distinguishing between the

time claimed for the various tasks. See, e.g., Moshir v. Automobili Lamborghini Am. LLC,

927 F. Supp. 2d 789, 799 (D. Ariz. 2013); Deocampo v. Potts, 2014 WL 788429, at *5

(E.D. Cal. Feb. 25, 2014).

The Court has reviewed the table of purported block-billed entries Defendants

compiled and Plaintiff’s annotated version of this table providing context for the

challenged entries. See Resp. Ex. 4, Reply Ex. B. Many of the challenged entries involve

entries of less than one hour and in some cases as low as 0.3 hours. See id. Others involve

plainly related tasks with reasonable time spent—e.g. “Revise & file stipulated EOT and

PO; email opposing regarding same” for 1.1 hours; “Emails with AS re prep for call with

HRDC re various strategy issues, conduct call, and follow up conf with AS re next steps”

for 1.0 hour. Reply Ex. B at 6. While they include discrete tasks, these entries are not the

sort of block billing courts are concerned about.

But there are some entries in the sampling Defendants compiled that constitute

improper block billing. For example, one entry for 6.0 hours includes “[d]oc review, and

M&C, emails with Gottfried and LAE.” Reply Ex. B at 5. While, as Plaintiff’s suggest,

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these tasks may well have been related to the same topic, they are sufficiently distinct that

the Court cannot properly assess the reasonableness of the time spent on each task,

particularly when the total time spent comprises six hours. If, say, this attorney spent five

hours of this billing entry on emails, while spending only one hour between document

review and a meet and confer, the time spent on emails would be unreasonable. But the

combined nature of this billing entry does not allow the Court to make such a

determination. Such entries are not common in Defendants’ compilation, but they are

present and constitute improper block billing.

Defendants ask the Court to apply a reduction of at least 50% and up to 70% to

Plaintiff’s block-billed time entries. Resp. at 15. The Court is unsure how Defendants

arrived at these figures. Defendants fail to cite any cases involving such a staggering

reduction figure, nor do the facts support it. Instead, the cases they cite involved reductions

of no more than 30% to block-billed hours. See Lahiri v. Universal Music & Video

Distribution Corp., 606 F.3d 1216, 1222–23 (9th Cir. 2010) (upholding 30% reduction);

Deocampo v. Potts, 2014 WL 788429 at *5 (applying 20% reduction).

Because most of the entries in Defendants’ compilation of purported block billing

are permissible, the Court will apply a 10% reduction to the $167,090.00 of billing entries

Defendants challenge to account for impermissible block billing, yielding a reduction of

$16,709.00.

iv.

Excessive or Duplicative Billing

Defendants assert Plaintiff’s fee requests for preparing the complaint, responding to

Defendants’ motion for summary judgement, and preparing the reply for Plaintiff’s motion

for summary judgment are excessive and the Court should deny them. District courts may

reduce requested hours that are excessive or duplicative. See Vargas v. Howell, 949 F.3d

1188, 1199 (9th Cir. 2020).

Defendants claim Plaintiff’s billing entries of $28,322.50 for preparing the

complaint and $115,630.00 to draft Plaintiff’s motion for summary judgment are excessive.

Resp. at 16. Defendants also assert RBGG’s billing $95,975.00 to respond to Defendants’

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motion for summary judgment and $42,410.00 for Plaintiff’s reply regarding its own

motion for summary judgment should preclude an award for “fees billed by HRDC and

Ballard Spahr for arguable duplicative work.” Id.

Plaintiff argues the “complaint was carefully tailored to the facts” and involved

consultations with an expert on correctional mail policies and practices, and that the

summary judgment motion “involved complicated issues of law and fact, extensive

oversize briefs, a record spanning thousands of pages, and later, multiple related motions

to strike and evidentiary objections.” Reply at 8. Plaintiff also notes Defendants did not

propose a reduction amount. Id. While this is true, it does not preclude the Court from

reducing these fees based on independent evaluation.

The Court finds Plaintiff’s billing related to preparing the complaint and Plaintiff’s

motion for summary judgment to be excessive. While the Court acknowledges that

drafting these documents likely involved significant factual and legal work, this work

builds on itself. Taken together, $143,952.50 for preparing these filings is too high. The

Court will apply a 20% reduction to these entries, yielding a reduction of $28,790.50.

While the Court may have found that billing entries by HRDC and Ballard Spahr

related to the response and reply to the cross-motions for summary judgment would be

excessive and duplicative given the fees RBGG billed for this work, Defendants do not

identify the amount of those fees charged by the other firms nor argue that RBGG’s billing

was excessive in itself. Thus, the Court will not reduce the fees requested for this work.

Clerical Tasks

Defendants assert they have identified $29,776.00 in billing entries for clerical

tasks. Resp. at 17–21. In assessing a fees motion, courts may reduce the award for time

spent performing clerical work. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 288 n.10

(1989); Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009); Davis v. City & Cnty. of

San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on other grounds on

denial of reh’g, 984 F.2d 345 (9th Cir. 1993).

Plaintiff’s Reply argues many of the challenge time entries “describe substantive

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legal work done by attorneys, including finalizing pleadings and other litigation

documents,” substantive conferences and emails, and legal research. Reply at 6.

The Court has reviewed Defendants’ table of time entries comprising purportedly

clerical work. See Resp. Ex. 2. Most of these entries reflect purely clerical tasks, e.g. 1.5

hours for “[e]lectronically filing documents” and 0.3 hours to “[c]alendar deadline per

court order.” Id. at 6, 12. But, as Plaintiff suggests, some of these entries involve

substantive legal work, e.g. 1.6 hours to “[r]evise, finalize, and file joint motion for

extension of case management deadline and associated proposed orders.” Id. at 5.

While Defendants request the Court to eliminate entries for clerical work—a

position which has some support in the caselaw, see Topness v. Cascadia Behav.

Healthcare, No. 16-CV-2026, 2017 WL 8895626, at *6 (D. Or. Oct. 17, 2017)—this work

is not necessarily unrecoverable but may not be recoverable at the high billing rate of an

attorney or even a paralegal, see Missouri v. Jenkins, 491 U.S. at 288 n.10 (“Of course,

purely clerical or secretarial tasks should not be billed at a paralegal rate . . . . Such non-

legal work may command a lesser rate. Its dollar value is not enhanced just because a

lawyer does it.”) (internal quotations omitted).

To properly account for clerical work, but acknowledging some of the identified

entries include substantive legal work or clerical work recoverable at a lower rate, the Court

will reduce the purportedly clerical hours identified by Defendants by 70%, yielding a

reduction of $20,843.20.

vi.

Work Unrelated to the Merits

Defendants assert they have identified $74,052.00 in billing entries reflecting work

appearing unrelated to this litigation and $49,760.50 in entries reflecting internal

communications that “cannot be connected to any claims for which Plaintiff ultimately

received relief and furthermore constitute unreasonably duplicative interoffice

communication.” Resp. at 20–21. A party seeking fees must make “a good faith effort to

exclude from a fee request hours that are excessive, redundant or otherwise unnecessary.”

Hensley, 461 U.S. at 434.

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Defendants take issue with $74,052.00 in billing entries including (i) “unspecified

communications with the press or about communicating with the press;” (ii) research on

“potential copyright claims and conferencing with the ACLU regarding PLN materials;”

(iii) internal communications about “unspecified inmate communications or inmate

subscriber communications;” (iv) communications about “related cases,” including

Parsons v. Ryan, Amtel, and Romero; and (v) “activities related to building a database of

inmate subscribers to assess subscriber numbers,” providing “litigation updates” to

inmates, sending out “unspecified mass mailing to inmate subscribers,” apparently

recruiting “inmate subscribership,” and performing “inmate custody checks.” Resp. at 20

(internal quotations omitted).

Defendants also challenge regular billing “for what appear to be internal emails or

conferences regarding local counsel, or unspecified strategy, or next steps, status, logistics,

case management, upcoming projects, staffing, or division of labor,” identifying entries

totaling $49,760.50. Resp at 20–21 (internal quotations omitted).

Plaintiff correctly asserts the purportedly “unrelated cases” are seminal related

cases, including one later cited in the Ninth Circuit’s decision in this matter. Reply at 7.

Plaintiff then argues time spent communicating with incarcerated subscribers about

censorship was related to the merits—HRDC relied on these communications to learn if

Defendants were delivering publications and ultimately amended its complaint to add new

claims based on information obtained through this outreach. Id. Seemingly responding to

Defendants’ claims regarding entries related to a potential copyright claim, Plaintiff argues

Defendants acknowledge “development of theories of the case and drafting initial

pleadings is generally compensable.” Finally, Plaintiff argues press coverage can be

integral to identify witnesses and evidence and to advance investigations. Id. (citing Davis,

976 F.2d at 1545 (“Where the giving of press conferences and performance of other

lobbying and public relations work is directly and intimately related to the successful

representation of a client, private attorneys do such work and bill their clients. Prevailing

civil rights plaintiffs may do the same.”)).

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While the Court agrees that much of the research on related cases is sufficiently

related to the merits of the case, Defendants otherwise present valid arguments for

reductions to the fees request. While communications with inmates may have implications

for the merits of the case, the legal relevance would be with the database or information

gathered from the communications—not the time spent on the communications

themselves.

compensable, development of a copyright theory that Plaintiff did not bring, let alone

successfully pursue, is not compensable. Further, Plaintiff has not articulated how press

and media relations are so “directly and intimately related to the successful representation”

in this case to justify recovering fees for such time. Finally, most of the $49,760.50 in

billing entries for internal communications that Defendants challenge largely appear not

sufficiently related to the merits and instead reflect time spent on administrative tasks.

And while Plaintiff is correct that development of case theories is

Thus, the Court will apply a 70% reduction to both the entries totaling $74,052.00

and the entries totaling $49,760.50 to account for work not reasonably connected to the

merits of a claim for which Plaintiff ultimately received relief, yielding a reduction of

$86,668.75.

vii.

Fees Application

Finally, Defendants further argue Plaintiff’s requested $301,017.15 in fees for

preparing the present fees application are unreasonable and excessive. Resp. at 28–30.

Defendants ask the Court to reduce these fees by 70%. Id. at 29–30. It is “well established

that time spent in preparing fee applications under 42 U.S.C. § 1988 is compensable.”

Gonzalez v. City of Maywood, 729 F.3d 1196, 1210 (9th Cir. 2013) (quoting Anderson v.

Director, OWCP, 91 F.3d 1322, 1325 (9th Cir.1996)).

Defendants’ argument focuses on comparing Plaintiff’s request to the fees Plaintiff

sought for the entirety of the appellate process. Resp. at 29. Plaintiff sought $278,487.50

for its appellate work (including merits and fee application work) and the Ninth Circuit

ultimately awarded $208,865.62. Id. But this comparison is inapposite. As Plaintiff points

out, the appellate process spanned two years and involved only one substantive brief.

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Reply at 10–11. The present fees application encompasses work spanning more than eight

years of extensive litigation and includes the work of three law firms. Id.

Defendants’ remaining argument for reducing the fees award for time spent

preparing the fees application is an undeveloped and unsupported assertion that “Plaintiff’s

billing for preparation of the fees application suffers from the same fatal flaws as does the

request for fees for merits work”—the entries are “similarly vague and ambiguous,

excessive, duplicative, and contain billing for clerical work,” and “should be reduced in

proportion to the limited success achieved in this case.” Resp. at 29–30. Plaintiff responds

detailing the work that went into preparing the fees application and the $38,501.05 in

discrete reductions, HRDC and Ballard Spahr not claiming fees for work after May 26,

2023, a 10% across-the-board reduction of fees work time, a 20% reduction of fees from

June 24 to August 29, 2023, and a waiver of fees related to work to complete and file the

Reply estimated to be at least $20,000. Reply at 11.

The Court finds these reductions sufficient.

As Defendants will know from

reviewing the fees application and its supporting documents, preparing these papers

required painstaking review of nearly a decade of billing entries across multiple firms. The

Court will not reduce the requested fees award for preparing the fees application.

viii.

Expenses and Costs

Defendants take issue with Plaintiff’s requested reimbursement for $18,378.80 in

costs. Resp. at 24. Defendants argue (i) the Court should deny these costs because they

do not comply with Local Rule 54.2(e)(3); (ii) costs of three deposition transcripts are

duplicative; (iii) costs for legal research are not recoverable or were not reasonably

incurred; and (iv) costs for postage, long-distance telephone calls, courier fees,

photocopying, and travel were not established as reasonably incurred. Id. at 24–28.

Local Rule 54.2(e)(3) provides a party seeking costs must “identify each related

non-taxable expense with particularity,” attaching “copies of applicable invoices, receipts

and/or disbursement instruments.” Defendants argue Plaintiff failed to comply with this

rule by not identifying each non-taxable cost with particularity and did not “itemize or

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parse any of these costs into categories and identify the total cost incurred per category.”

Resp. at 24. Plaintiff responds stating their “expense records are organized and provide

the necessary detail” in that they “submitted an itemized statement of all expenses and

attached supporting documentation (i.e., receipts) based on the expense category. Reply at

10. The Court agrees. Plaintiff attached an itemized statement of all expenses and included

applicable supporting documentation. See Mot. Ex. F at 247–266. Plaintiff’s expense

request complies with Local Rule 54.2(e)(3), and it is unclear what more Defendants could

ask Plaintiff to provide to document these expenses.

Defendants claim Plaintiff includes the costs for three deposition transcripts in both

its bill of costs (Doc. 366) and its expense request here and are thus duplicative. Resp. at

25. Plaintiff explains its itemized expense report specifically omits court reporter charges

claimed on the bill of costs. Reply at 10 (citing Doc. 365-1 at 265). Plaintiff is correct.

The Court will not reduce Plaintiff’s requested expenses because Plaintiff’s request does

not seek duplicative recovery of these expenses.

Defendants argue legal research expenses are not recoverable, and even if the Court

decides they are recoverable, the Court should deny them because Plaintiff’s invoices are

insufficient to establish the expenses were reasonable and connected to this litigation.

Resp. at 25–26. Defendants cite to decisions from the Seventh Circuit and district courts

in California and Oregon to assert legal research expenses are not recoverable. Id. But

this ignores cases from the District of Arizona holding legal research expenses are

recoverable costs. See, e.g., Agster v. Maricopa Cnty., 486 F. Supp. 2d 1005, 1018 (D.

Ariz. 2007) (awarding Plaintiff electronic legal research expenses under § 1988). The

Court finds legal research expenses are recoverable. Further, Plaintiff has complied with

Local Rule 54.2(e)(3) in presenting adequately detailed accounts of its legal research

expenses. Legal research expense reports need not identify the legal issues researched.

Agster, 486 F. Supp. 2d at 1018. The Court will not reduce or deny Plaintiff’s legal

research expense request.

Finally, Defendants argue the Court should deny costs for postage, long-distance

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telephone calls, courier fees, photocopying, and travel because Plaintiff’s submitted

invoices do not establish the costs were reasonable. Resp. at 26–28. Plaintiff asserts its

itemized statement of expenses and attached supporting documentation satisfy its burden

on this issue. See Reply at 10. As the Court found above with respect to Plaintiff’s fee

request generally, its requests for these expenses are sufficient under Local Rule 54(e)(3).

There is one slight exception—Defendants identify an entry for $20.88 for the postage

costs of sending “[d]iabetes books” to prisoners. Resp. at 27, (Doc. 365-4 at 187). It is

unclear how this charge relates to this litigation and the Court will deny it, yielding a total

reduction of Plaintiff’s non-taxable expenses of $20.88.

ix.

Lodestar Calculation

Accordingly, the Court will reduce the lodestar amount by $153,032.33 to account

for improper block billing, excessive hours, clerical tasks, work not reasonably connected

to the merits of a claim for which Plaintiff received relief, and unrecoverable expenses as

outlined above. The Court calculates the lodestar amount to be $2,370,881.67.

Despite a “strong assumption that the ‘lodestar’ method represents a reasonable

fee,” Corrales-Gonzalez v. Speed Auto Wholesalers LLC, 2023 WL 3981139, at *7 (D.

Ariz. June 13, 2023), the Court “has discretion to adjust the lodestar upward or downward”

based on the Kerr factors not subsumed in the lodestar calculation, Stetson v. Grissom, 821

F.3d 1157, 1166-67 (9th Cir. 2016). Courts must assess these factors and must articulate

“with sufficient clarity the manner in which it makes its determination.” Carter v. Caleb

Brett LLC, 757 F.3d 866, 869 (9th Cir. 2014). The above lodestar analysis subsumes

several of these factors, including the time and labor required by counsel, skill required to

perform the legal service properly, customary fees in similar matters, and the experience

and reputation of counsel. Defendants do not challenge any of these lodestar factors aside

from their general arguments against the fee award detailed above. The Court considers

the remaining factors here and finds none justify adjusting the lodestar figure.

Lodestar Adjustment

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Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 16 of 18

Time Limitations

Given the time required to litigate this matter, Plaintiff asserts that on occasion, its

lawyers needed to delay other matters. Mot. at 15. This factor weighs in favor of awarding

the full lodestar amount.

ii.

Results Obtained

The Supreme Court has instructed the “most critical factor in determining the

reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v. Hobby, 506

U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436). See also Rudebusch v. Arizona,

No. 95-CV-1313, 2007 WL 2774482, at *5 (D. Ariz. Sept. 21, 2007) (quoting Hensley, 461

U.S. at 436). If a “plaintiff has achieved only partial or limited success, the product of

hours reasonably expended on the litigation as a whole times a reasonable hourly rate may

be an excessive amount.” Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. at 436).

The Court analyzed the results obtained in addressing Defendants’ assertion that the

Court should reduce Plaintiff’s requested fees to account for Plaintiff’s limited success.

Having found the fees request appropriately accounted for Plaintiff’s limited success, the

Court weighs this factor in favor of awarding the full amount of the lodestar as calculated.

iii.

Novelty and Difficulty of the Issues

Plaintiff asserts the “legal and factual issues in this case were complex.” Mot. at 14.

The Court agrees and finds this factor weighs in favor of awarding the full lodestar amount.

iv.

Undesirability of the Case

Plaintiff argues litigation on behalf of non-profit publishers focused on the rights of

incarcerated people is “often unattractive to the bar,” and that it is unlikely another firm

could have served as lead counsel in this case. Mot. at 16. Further, Plaintiff argues the

contingent fee arrangement involved a considerable assumption of financial burden on the

firms’ behalf, making it even more undesirable. The Court finds this factor weighs in favor

of awarding the full lodestar amount.

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Nature and Length of Client Relationship

Plaintiff asserts RBGG and its lawyers have extensive experience representing

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Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 17 of 18

Plaintiff since 2005. Mot. at 16. The Court finds this factor weighs in favor of awarding

the full lodestar amount.

vi.

Awards in Similar Cases

Plaintiff asserts its requested fees award is “consistent with other fee awards in

similar litigation,” including other cases where courts outside San Francisco and the

Northern District of California awarded RBGG its San Francisco rates. Mot. at 16–17.

The Court finds this factor weighs in favor of awarding the full lodestar amount.

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vii.

Lodestar Reduction

Having considered all the Kerr factors, the Court determines no reduction to the
lodestar amount is appropriate in this case.

Conclusion

Plaintiff requested $2,523,914.00 in fees and expenses. The Court reduced this

amount by $153,032.33 to account for improper block billing, excessive hours, clerical

tasks, work not reasonably connected to the merits of a claim for which Plaintiff received

relief, and unrecoverable expenses. The Court then determined the Kerr factors do not

justify a reduction of this amount. Thus, the Court will award Plaintiff $2,370,881.67 in

fees and expenses.

BILL OF COSTS

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Plaintiff’s bill of costs (Doc. 366) claims $8,426.25 in taxable costs. Defendants

filed a response (Doc. 372) arguing the Court should reduce Plaintiff’s taxable costs by

50% to 70% to account for Plaintiff’s limited success in litigating the case. As explained

in detail above, the Court finds Plaintiff’s requested fees and costs adequately account for

its limited but substantial success in this matter. The Court finds no reduction to the bill

of costs is appropriate.

Accordingly,

IT IS ORDERED Plaintiff’s Motion for an Award of Attorneys’ Fees is

GRANTED IN PART and DENIED IN PART.

$2,370,881.67 in attorneys’ fees and expenses.

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Defendants shall pay Plaintiff

Case 2:15-cv-02245-ROS Document 379 Filed 03/20/24 Page 18 of 18

IT IS FURTHER ORDERED Defendants shall pay Plaintiff $8,426.25 for costs

as outlined in Plaintiff’s Bill of Costs (Doc. 366).

Dated this 19th day of March, 2024.

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Honorable Roslyn O. Silver
Senior United States District Judge

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