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Burge v. Colton School District 53

United States District Court, D. Oregon, Portland Division

July 2, 2015

BRAEDEN BURGE, by and through his Guardian ad Litem, KELLY BURGE, Plaintiff,


JANICE M. STEWART, Magistrate Judge.


Plaintiff, Braeden Burge ("Burge"), filed this action against defendant, Colton School District ("CSD"), under 42 USC § 1983 for violating his First Amendment free speech and Fourteenth Amendment due process rights when it punished him for comments he made on his private Facebook page from the privacy of his own home, outside school hours, and while not participating in any school-sponsored activity. After the parties filed cross-motions for summary judgment, this court issued Findings and Recommendations, recommending that summary judgment should be granted in favor of Burge on his First Amendment claim (docket #23). On April 17, 2015, Judge Mosman issued an Opinion and Order adopting the Findings and Recommendations and ordering CSD to "remove Braeden's suspension from his school records and compensate Braeden for his reasonable attorney fees, costs and disbursements pursuant to 42 USC § 1988" (docket #27).

Burge has now filed a Motion for Attorney Fees and Costs (docket #31) seeking an award of attorney fees pursuant to 42 USC § 1988 in the amount of $97, 391.00 and a Bill of Costs (docket #33) seeking recovery of costs in the amount of $1, 350.00. For the following reasons, Burge should be awarded attorney fees in the reduced sum of $64, 925.20 and his costs in full.


I. Reasonable Attorney Fees

Attorney fees for the prevailing party in fee-shifting claims are calculated using the lodestar figure which is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Miller v. Los Angeles Cnty. Bd. of Educ., 827 F.2d 617, 621 (9th Cir 1987), quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). There is a strong presumption that the lodestar amount is reasonable. Jordan v. Multnomah Cnty., 815 F.2d 1258, 1262 (9th Cir 1987). In calculating the lodestar, the court must consider those factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir 1975), which have now been subsumed within the initial calculation. Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 487 (9th Cir 1988). Subsumed factors include: (1) novelty and complexity of the issues; (2) special skill and experience of counsel; (3) quality of the representation; (4) the results obtained; and (5) the superior performance of counsel. After calculating the lodestar, the fee may be adjusted by any nonsubsumed factors identified in Kerr.

Burge was represented by the law firm of Lane Powell on a pro bono basis as cooperating attorneys with the ACLU Foundation of Oregon which will receive any award of attorney fees. Patton Decl. (docket #32), ¶ 2. Based on the actual hours worked (490.6) by all attorneys and paralegals, if billed at Lane Powell's standard hourly rates, Burge's total amount of attorney fees would be $186, 437.00. Id, ¶¶ 7, 9. However, Burge is requesting a reduced award of $97, 391.00 based only on the work performed by two attorneys, William Patton and Cozette Tran-Caffee, at a significant discount from their standard hourly rates. The requested award is based on 156.5 hours incurred by Mr. Patton at hourly rates of $380-$416 and 136.6 hours incurred by Ms. Tran-Caffee at hourly rates of $253-269. Id, ¶ 3.

Despite this voluntary reduction of over 40% by Burge's attorneys, CSD contends that the amount of attorney fees requested is unreasonable because it includes hours spent on the related state court case and because the hourly rates are too high. CSD also seeks a 30% reduction in the fee award for time spent on unsuccessful claims and the unreasonable number of hours expended.

A. Hours Spent on Related State Court Case

CSD argues that because Burge was not the prevailing party in the prior state court case, he cannot recover fees for any legal services rendered during that lawsuit and should be limited to 186.3 hours expended by his attorneys after January 14, 2014.

Burge initially filed this case on July 27, 2012, in Clackamas County Circuit Court, alleging the same claims as in this case plus a claim under the Oregon Constitution pursuant to the writ of review procedures. Patton Decl., ¶ 10; Mersereau Decl. (docket #39), ¶ 3 & Ex. 1. After conducting discovery and filing cross-motions for summary judgment, Burge voluntarily dismissed the state court action without prejudice on October 21, 2013, resulting in entry of a General Judgment of Dismissal on November 18, 2013, and an Order requiring him to pay CSD a prevailing party fee of $275.00. Mersereau Decl., ¶¶ 3-5 & Exs. 2-3. He then refiled his free speech and due process claims in this court on April 11, 2014, but eliminated the claim under the Oregon Constitution.

Burge was not the prevailing party in the state court case, but may recover attorney fees for hours expended in that case which were necessary in order to prevail in this case. His fee request includes time spent obtaining discovery in the prior state court case, including depositions. The parties conducted no additional discovery after Burge refiled the case in this court, but relied on the discovery already conducted in the state court action. To prevail in this case, Burge not only was able to take advantage of the discovery conducted in the state court case, but also the legal research performed. However, he has eliminated any duplicative or inapplicable work from his fee request, including all hours spent drafting the state court complaint and the state court summary judgment briefing and working on the writ of review issues and anything else that applied only to the state court case. Whether performed in the prior state court case or in this ...

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