United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiffs' Motion
for Attorney's Fees [#93], Defendants' Response [#95]
in opposition, Intervenor Defendant Texas Society of Oral and
Maxillofacial Surgeon (TSOMS)'s Response [#94] in
opposition,  and Plaintiffs' Reply [#98] in
support, Plaintiffs' Supplemental Fee Submission [#108],
and Defendants' Supplemental Submission [#107]. Having
reviewed the documents, the governing law, the arguments of
counsel, and the file as a whole, the Court now enters the
following opinion and orders.
March 5, 2014, Plaintiffs filed suit against Defendants
challenging Texas Administrative Code § 108.54, which
prohibits a licensed dentist from advertising as a
"specialist" in any area of dentistry not
recognized as a "specialty" by the American Dental
Association. Plaintiffs alleged § 108.54 infringed upon
their First Amendment right to engage in truthful,
non-misleading commercial speech as well as their Fourteenth
Amendment due process and equal protection rights. In its
January 21, 2016 order, the Court granted summary judgment in
favor of Plaintiffs on the First Amendment claim granted
summary judgment in favor of Defendants on Plaintiffs'
Fourteenth Amendment claims. Order of January 21, 2016 [#75]
at 25. The Fifth Circuit subsequently affirmed on appeal,
holding § 108.54 unconstitutional as applied to
Plaintiffs. Fifth Cir. J. [#85] at 16-17.
move for attorney's fees pursuant to 42 U.S.C. §
1988(b). Mot. Att'y Fees [#93]. While Defendants do not
contest Plaintiffs' right to a fee award, they argue the
Court should reduce the amount of fees claimed by Plaintiffs.
Resp. Mot. Att'y Fees [#94]. Plaintiffs' motion for
attorney's fees initially requested a total fee award of
$733, 335. Mot. Att'y Fees [#93] at 5. The Court
subsequently held a hearing regarding attorney's fees on
October 26, 2017, and in November 2017, both parties
submitted revised fee proposals to Court. Pls.' Suppl.
Submission [#108]; Defs.' Suppl. Submission [#107].
Plaintiffs now claim attorney's fees of $311, 950 and
nontaxable expenses of $2, 701.95, as well as taxable
expenses of $5, 130. Pls.' Suppl. Submission [#108] at
3-4; Bill of Costs [#106]. In turn, Defendants
suggest the Court award Plaintiffs reasonable attorney's
fees of $212, 170. Defs.' Suppl. Submission [#107] at 1.
Plaintiffs' pending motion for attorney's fees is now
ripe for review.
Legal Standards A. Motion for Attorney's
Fees-42 U.S.C. § 1988
42 U.S.C. § 1988, a "prevailing party" in an
action brought under 42 U.S.C. § 1983 may be awarded
reasonable attorney's fees. 42 U.S.C. § 1988;
see also Univ. Amusement Co., Inc. v. Vance, 587
F.2d 159, 172 (5th Cir. 1978) (noting court has discretion to
award fees under § 1988). To qualify as a prevailing
party, the plaintiff must demonstrate (1) the plaintiff
achieved judicially-sanctioned relief; (2) the relief
materially alters the legal relationship between the parties;
and (3) the relief modifies the defendant's behavior in a
way that directly benefits the plaintiff at the time the
relief is entered. Petteway v. Henry, 738 F.3d 132,
137 (5th Cir. 2013). To "prevail" under §
1988, the party seeking fees need not procure a favorable
judgment on every claim. Jenevein v. Willing, 605
F.3d 268, 270 (5th Cir. 2010).
Calculation of Attorney's
The Fifth Circuit uses a two-step process to calculate
attorney's fees. Heidtman v. Cnty. of El Paso,
171 F.3d 1038, 1043 (5th Cir. 1999). First, a court
calculates a "lodestar" figure "by multiplying
the number of hours reasonably expended by an appropriate
hourly rate in the community" for "similar services
by lawyers of reasonably comparable skill, experience and
reputation." Id; Blum v. Stenson, 465 U.S. 886,
895-96 n.ll (1984). In so doing, the court considers whether
the attorneys demonstrated proper billing judgment by
"writing off unproductive, excessive, or redundant
hours." Walker v. U.S. Dep't of Hous. &
Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996). The
plaintiff has the burden of showing the reasonableness of the
hours billed and proving the exercise of billing judgment.
Id. at 770.
calculating the lodestar, the court may increase or decrease
it based on the following factors: (1) the time and labor
required by the litigation; (2) the novelty and difficulty of
the issues; (3) the skill required to perform the legal
services properly; (4) the preclusion of other employment by
the attorney; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) the time limitations imposed by the
client or circumstances; (8) the amount involved and results
obtained; (9) the experience, reputation, and ability of the
attorney; (10) the undesirability of the case; (11) the
nature and length of the professional relationship with the
client; and (12) the award in similar cases.
Heidtman, 171 F.3d at 1043 n.5 (citing Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974), abrogated on other grounds by Blanchard
v. Bergeron, 489 U.S. 87 (1989)).
prevailing party was only partially successful, the court
must consider two further issues: first, the relationship
between the claims on which the plaintiff succeeded and those
on which he did not, and second, whether the plaintiff
achieved a level of success that makes the hours expended a
satisfactory basis for a fee award. Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983); see also
Romaguera v. Gegenheimer, 162 F.3d 893, 896 (5th Cir.
1998), clarified on denial of reh'g, 169 F.2d
223 (5th Cir. 1999). Specifically, in a suit where the
plaintiff presents "distinctly different claims for
relief that are based on different facts and legal theories[,
] . . . work on an unsuccessful claim cannot be deemed to
have been expended in pursuit of the ultimate result
achieved"; thus, no fee award for that work is
permitted. Hensley, 461 U.S. at 434-35 (internal
quotes omitted). In contrast, where the suit "involve[d]
a common core of facts" or was "based on related
legal theories, " the 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. at 435.
motion for attorney's fees initially requested a total
fee award of $733, 335. Mot. Att'y Fees [#93] at 5. In
their response, Defendants objected to (1) the hourly rate
requested; (2) the vagueness of billing entries and/or
blockbilling; (3) the rate charged for travel time; (4)
excessive hours; (5) overstaffing; (6) hours billed for
clerical work, public relations efforts, and pro hac
vice admissions; (7) fees related to intervention; and
(8) fees for activities unrelated to Plaintiffs' success
in the litigation. Resp. Mot. Att'y Fees [#95] at 3-16.
Defendants also argued Plaintiffs' award should be
reduced in light of the results obtained and fee awards in
similar cases. Id. at 16-20.
the hearing before this Court, both parties submitted
supplemental letters to the Court revising their fee award
estimates. Pls.' Suppl. Submission [#108]; Defs.'
Suppl. Submission [#107]. While Plaintiffs have not changed
their requested hourly rates, they have eliminated all hours
claimed for travel and all hours attributable solely to
Intervenor Defendant TSOMS, thus disposing of Defendants'
third and seventh objections, respectively. Additionally,
Plaintiffs have substantially trimmed their fee requests in
response to Defendants' objections regarding vague
billing entries, expenditure of excessive hours,
overstaffing, and clerical work. ...