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Thayer v. City of Worcester

United States District Court, D. Massachusetts

March 29, 2017





         In January of 2013, the City of Worcester (“City”) adopted two ordinances aimed at controlling aggressive panhandling. Specifically, the City of Worcester Revised Ordinances of 2008, as amended through February 5, 2013 (“R.O.”) ch. 9, §16 (“Ordinance 9-16”) made it “ ... unlawful for any person to beg, panhandle or solicit in an aggressive manner.” R.O. ch. 13, § 77(a)(“Ordinance 13-77, ” and together with Ordinance 9-16, the “Ordinances”) prohibited standing or walking on a traffic island or roadway except for the purpose of crossing at an intersection or crosswalk, or entering or exiting a vehicle or “for some other lawful purpose.” On May 31, 2013, the Plaintiffs, Robert Thayer (“Thayer”), Sharon Brownson (“Brownson”) and Track Novick (“Novick”) brought suit against the City seeking declaratory and injunctive relief and monetary damages. On October 24, 2013, I issued an Order denying Plaintiffs' motion for a preliminary injunction. See Mem. of Dec. and Order on Pl's Mot. for Prel. Inj. (Docket No. 32). Plaintiffs appealed the denial of their request for injunctive relief to the First Circuit, which affirmed my Order, except as to Ordinance 9-16's proscription on nighttime solicitation. See Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014), vacated, Thayer v. City of Worcester, 576 U.S. ___, 135 S.Ct. 2887 (2015). Plaintiffs then filed a petition for writ of certiorari seeking review in the Supreme Court of the United States. On June 29, 2015, the petition for writ of certiorari was granted, the judgement of the First Circuit was vacated and the matter remanded for further consideration in light of Reed v. Town of Gilbert, 576 U.S. -, 135 S.Ct. 2218 (2015). On July 14, 2015, the First Circuit subsequently vacated its opinion and judgment and remanded the matter to this Court. On November 9, 2015, I issued a Memorandum of Decision and Order (Docket No. 120) finding in favor of the Plaintiffs on the parties' cross-motions for summary judgment. Judgement entered in favor the Plaintiffs on that same date. See Docket No. 122.

         This Memorandum of Decision and Order addresses Plaintiffs' Motion For Award of Attorney's Fees And Litigation Expenses (Docket No. 126). For the reasons set forth below, that motion is granted, in so far as Plaintiffs shall be awarded attorneys' fees and costs, but denied as to the amount requested.


         Plaintiffs seek attorneys' fees in the amount of $1, 016, 439.60 and total costs of $9, 783.59 in connection with the underlying proceedings, and an additional $16, 888.00 for preparing their fee petition, for total attorneys' fees and costs of $1, 043, 111.19. Defendant asserts that the Plaintiffs' fee petition should be denied is so far as the amount of fees sought is excessive, duplicative, and punitive. More specifically. Defendant asserts that the fees and expenses charged by Plaintiffs' legal team are “wholly disproportionate to the billable rate in the Worcester area, as well as to the nature and outcome of the case, an alleged theoretical First Amendment violation that was resolved at summary judgment.” Def's Opp. To Pls' Mot. For Attorneys' Fees And Expenses (Docket No. 135).

         Legal Standard

         Having prevailed on their Section 1983 claim that the Ordinances unconstitutionally restricted their right to freedom of speech, the Plaintiffs are presumptively entitled to recover their reasonable attorneys' fees, “‘unless special circumstances would render such an award unjust.'”. Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008); see also 42 U.S.C. §1988(b)(in any Section 1983 action, court in its discretion may allow prevailing party reasonable attorneys' fee as part costs). What constitutes a reasonable attorneys' fee:

typically is determined through the lodestar method, which involves multiplying the number of hours productively spent by a reasonable hourly rate to calculate a base figure. In fashioning the lodestar, [the] court may adjust the hours claimed to eliminate time that was unreasonably, unnecessarily, or inefficiently devoted to the case. Subject to principles of interconnectedness, the court may disallow time spent in litigating failed claims. It also may adjust the lodestar itself, upwards or downwards, based on any of several different factors, including the results obtained and the time and labor actually required for the efficacious handling of the matter. Reasonableness in this context is largely a matter of informed judgment. There are, however, guideposts in the case law. For instance, a district court may deem an expenditure of time unreasonable if the reported hours are ‘excessive, redundant, or otherwise unnecessary.' By like token, it may discount or disallow the total hours claimed if it determines that the time is insufficiently documented.

Id. (internal citations and citations to quoted case omitted). After passing on the reasonability of the time expended by the attorneys, the Court must determine the appropriateness of the rates charged. Id.

         In determining an objectively reasonable award based on the work of Plaintiffs' attorneys, the Court has reviewed the pretrial, trial and post-trial record of this case, including the affidavits and billing records submitted by Plaintiffs in support of their application for fees and costs. Considering these materials and the arguments of the parties, the Court will apply the lodestar method, making appropriate adjustments in light of the factors outlined by the First Circuit.

         Whether the Time Spent And Fees Charged Were Appropriate

         Plaintiffs' attorneys provided able representation throughout the course of these proceedings. Moreover, there is no question that, having received a judgement in their favor that granted them the entirety of the relief they requested, Plaintiffs are entitled to an award of attorneys' fees and costs. The amount of costs and attorneys' fees to which they are entitled, however, is a highly disputed between the parties.

         Plaintiffs' legal team consisted of eleven attorneys nine from the Boston law firm of Goodwin Procter LLP and two from the American Civil Liberties Union (“ACLU”).[1] The attorneys from Goodwin Procter LLP (“Goodwin attorneys”) billed at the following rates: (1) Kevin Martin, a senior level attorney (partner)-- $640-$680 per hour; (2) Yvonne Chan, a senior level attorney (partner)-- $488-$580 per hour; (3) Brian Burgess, a mid to senior level attorney (senior associate)-- $408-$520 per hour; (4) Joshua Daniels-mid level attorney (senior associate)-- $476-$508 per hour; and (5) Todd Marabella (associate), Danielle Bart (associate), Alexandra Lu (associate), Kate MacLeman (associate), Margaret Sullivan (associate)-- $284-$468 per hour. As to the attorneys for the ACLU (“ACLU attorneys”), Matthew Segal, Legal Director of the American Civil Liberties Union Foundation of Massachusetts (“ACLUM”), a senior level attorney, is requesting reimbursement of $625 per hour (“in an ...

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