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American Academy of Implant Dentistry v. Parker

United States District Court, W.D. Texas, Austin Division

January 11, 2018

GLENN PARKER, Executive Director of the Texas State Board of Dental Examiners, et al., Defendants.



         BE IT 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, [1] 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.


         On 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.

         Plaintiffs 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.


         I. Legal Standards A. Motion for Attorney's Fees-42 U.S.C. § 1988

         Under 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).

         B. Calculation of Attorney's

         Fees 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.

         After 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)).

         Where a 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.

         II. Application

         Plaintiffs' 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.

         Following 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. ...

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