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 Because oral argument will not be of material assistance,

the Court orders this matter submitted on the briefs. Local Rule

78-230(h). 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DENNIS KELLER and CRYSTAL

KELLER,

NO. CIV. S-04-1325 LKK/DAD

Plaintiffs,

v. O R D E R

 

CITY OF STOCKTON, et al.,

Defendants.

 /

Pending before the court is plaintiffs’ motion for attorney’s

fees. Defendants oppose this motion. I decide the matter based

on the papers and the pleadings filed herein.1

I.

BACKGROUND

The court has set forth the relevant facts elsewhere, and

no purpose is served by repeating those facts here. Suffice it

to say that on July 9, 2004, plaintiffs Dennis Keller and

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 During discovery, plaintiffs dismissed the County of San

Joaquin and Jose Romero.

2

Crystal Keller filed suit against the City of Stockton (“City”),

the County of San Joaquin, Child Protective Services worker Jose

Romero, and officers Katherine Henderson and Ken Praegitzer,

alleging unreasonable seizure of Crystal from the custody of her

father. The suit was predicated on 42 U.S.C. § 1983, and

alleged violations of the Fourth and Fourteenth Amendments of

the United States Constitution.2

After a four-day trial, which ended on March 31, 2006, the

jury found that the City, Henderson, and Praegitzer violated the

Kellers’ civil rights and awarded compensatory damages to Dennis

Keller in the amount of $100,000 and to Crystal Keller in the

amount of $500,000. The jury awarded punitive damages against

Henderson and Praegitzer in the amount of $1,000,000 each, for a

total of $2,600,000. 

II.

STANDARDS

The Supreme Court has articulated the standard for a

finding of “prevailing party” as whether the party has

“succeed[ed] on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing

suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)(citing

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978)). The Ninth

Circuit, in discussing whether a party has achieved “prevailing”

status, has noted that a party can achieve that status by

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3

 The twelve Kerr factors, incorporated by Local Rule 54-

293(c), bearing on reasonableness are:

(1) the time and labor required, (2) the novelty and

difficulty of the questions involved, (3) the skill

requisite to perform the legal service properly, (4) the

preclusion of other 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.

3

establishing a “clear, causal relationship between the

litigation brought and the practical outcome realized.”

Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir. 1983).

In an action brought pursuant to 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(b). Consequently, the

court may grant reasonable attorney’s fees pursuant to 42 U.S.C.

§ 1988(b). 

The federal courts have adopted the “lodestar” method for

calculating attorney’s fees. Hensley, 461 U.S. at 424. To

determine the appropriate fee amount, the court multiplies the

number of hours reasonably expended in the litigation by a

reasonable hourly rate. Id. The court may then, at its

discretion, adjust the lodestar amount after considering other

factors that bear on the reasonableness of the fee.3 Dang v.

Cross, 422 F.3d 800, 812 (9th Cir. 2005). 

////

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4

 Although the court has reduced the punitive damages awarded

to Dennis Keller, there is no doubt that plaintiffs prevailed in

the suit.

4

III.

ANALYSIS

A. PREVAILING PARTY

Plaintiffs contend that they prevailed pursuant to 42

U.S.C. § 1983 because the jury found that defendants violated

their rights and that the conduct was attributable to the City

of Stockton and to Officers Henderson and Praegitzer. 

Defendants contest this assertion because pending before the

court is a Motion for Judgment as a Matter of Law, New Trial,

and/or Remittitur. Defendants argue that if the court should

determine that their position has merit, “then the predicate for

Plaintiffs’ entitlement to fees - a judgment establishing

Plaintiffs’ status as prevailing party - will have vanished.” 

Defs.' Opp’n at 1. As set forth in an order issued concurrently

with this one, however, the court has denied defendants’ motion

for judgment as a matter of law and new trial, and thus, the

court concludes that there is a causal relationship between the

litigation brought and the outcome achieved, and that plaintiffs

are entitled to attorney’s fees.4

B. REASONABLE HOURLY RATE

The appropriate hourly fee should be based on the rates

charged by counsel with similar experience, reputation, and

skill for similar cases in the legal community. See Chalmers v.

Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1985). Plaintiffs’

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counsel seeks $350.00 per hour for worked performed on this

case. Beauvais Dec. at 1. Defendants contend that plaintiffs’

counsel should receive no more than $300.00 per hour. Defs.'

Opp’n at 2. Mr. Beauvais, plaintiffs’ counsel, has over twentyeight years of experience practicing law, having been the

counsel of record in numerous § 1983 cases, including five civil

rights cases concerning allegedly unlawful removals of children

from their parents. Beauvais Dec. at 2. Plaintiffs support the

hourly fee request by providing declarations from three

attorneys, all of whom are admitted to practice before the

Eastern District. The hourly rates that those attorneys suggest

vary. See Katz Dec. at 2 (proposing a prevailing rate of more

than $250); Wells Dec. at 2 (suggesting a prevailing rate of at

least $400); Miller Dec. at 4 (proposing a prevailing rate

between $300 and $325). Andrea Miller’s declaration is

particularly helpful in that she has served as an expert witness

on attorney fee issues in several cases in and around

Sacramento. Miller Dec. at 4. Similar to Beauvais, Miller has

practiced law for approximately twenty-seven years, and has

represented plaintiffs in child removal cases. Based on her

experience and opinion, she states that plaintiffs’ counsel

should be awarded “between $300 and $325 per hour.” Miller Dec.

at 4. Defendants argue that the prevailing rate should be no

higher than $300, by citing to plaintiffs’ declarations and

arguing that some attorneys received fees of $300 or less. 

Defs.' Opp’n Mem. at 2. Defendants' argument is not dispositive

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5

 Plaintiffs originally sought to recover 206.3 hours in

fees, but on June 5, 2006, plaintiffs submitted a supplemental

declaration seeking to recover fees for 33.3 hours spent on

researching and writing the opposition brief to defendants’ motions

for a new trial, judgment as a matter of law, or remittitur. The

court has examined the declaration and the time records and

determines that the hours sought for opposing these motions are

reasonable. 

6

of the issue, nor do they submit independent evidence to

establish the appropriate prevailing rate.

After considering Mr. Beauvais’ legal experience, the

declarations filed with the court, the manner in which the case

was tried, and defendants’ opposition, the court concludes that

the rate of $325 adequately reflects the prevailing hourly rate

in the Sacramento area for similar work performed by attorneys

of comparable skill, experience, and reputation. The court

calculates the lodestar figure based on this hourly rate.

C. REASONABLE HOURS BILLED

Plaintiffs seek to recover attorneys' fees for a total of

239.6 hours expended in this litigation, including for the time

spent on this motion.5 Pls.’ Mot. at 1. In arriving at the

lodestar figure, the district court should exclude hours that

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

Hensley, 461 U.S. at 434. Further, an attorney may request fees

associated with his motion for an award of attorneys’ fees. 

Harris v. Marhoeffer, 24 F.3d 16, 19 (9th Cir. 1994).

Plaintiffs’ counsel argues that although this case did not

present any novel issues, having to litigate issues arising from

the contentious custody battle that provided context for the

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case made litigation much more difficult. Pls.’ Mot. at 5. 

Counsel has filed a lengthy and detailed billing record setting

forth the time spent over the last two years on this litigation. 

See Beauvais Dec., Ex. A. Importantly, defendants do not oppose

plaintiffs’ calculation of the time and labor expended in the

litigation.

 The court has examined Mr. Beauvais’ papers, declarations,

and accompanying records and concludes that 239.6 hours is

reasonable under the circumstances.

D. BILL OF COSTS

Plaintiffs request $627.90 for the costs of transcripts

related to this suit and $4,607.21 for other costs. Plaintiffs

have tendered to the court invoices evidencing these costs. The

court, however, has examined the bill of costs and has adjusted

the amount pursuant to Local Rule 54-292 and 28 U.S.C. § 1920.

First, plaintiffs have tacked on $693.70 to the bill of

costs for amounts related to travel to Pensacola for the Morie

deposition, including dining expenses. This amount should be

calculated with the attorneys’ fees, not the bill of costs, and

the court will add this amount to the attorney’s fees. See

Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991).

Second, according to the Local Rules and 28 U.S.C. § 1920,

appearance fees, non-appearance fees, per diem costs for the

court reporters, and special handling charges may not be taxed. 

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6

 The amount is based on those fees and costs sufficiently

documented by plaintiffs’ counsel as follows:

Hours Rate Total

David J. Beauvais 239.6 $325/hr $77,870.00

Travel Costs $ 693.70

Costs $ 4,007.91

Total $82,571.61

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The court will therefore subtract $ 533.50 from the requested

bill of costs amount. 

With the adjustments noted above, the court shall award

plaintiffs $ 4,007.91 in costs.

IV.

 CONCLUSION

Accordingly, plaintiffs’s counsel is AWARDED $82,571.61 in

attorney’s fees and costs.6

IT IS SO ORDERED. 

DATED: July 18, 2006.

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