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Soltesz v. Rushmore Plaza Civic Center

United States District Court, D. South Dakota, Western Division

September 8, 2015

KYLE SOLTESZ, Plaintiff,
RUSHMORE PLAZA CIVIC CENTER, a political subdivision of the City of Rapid City, and CITY OF RAPID CITY, a political subdivision of the State of South Dakota, Defendants.


JEFFREY L. VIKEN, Chief Judge.


On November 21, 2014, a jury returned a verdict in the amount of $112, 562.00 in favor of plaintiff and against defendants and a verdict in the amount of $14, 820.62 in favor of defendants and against plaintiff. (Docket 140). On November 25, 2014, a judgment was entered consistent with the jury's verdict.[1] (Docket 142). On December 23, 2014, plaintiff timely filed a motion for attorneys' fees and costs pursuant to 42 U.S.C. § 1988(b), together with supporting affidavits and the law firm's billing records. (Dockets 148, 150, 151, 151-1 & 161). Defendants oppose plaintiff's motion. (Docket 157). Because of defendants' objections and a number of other factors, the law firm filed an amended billing statement.[2] (Docket 161-1). For the reasons stated below, plaintiff's motion is granted in part and denied in part.


Plaintiff Kyle Soltesz filed a complaint against defendants alleging violations of his constitutional rights under 42 U.S.C. § 1983 and state law. (Docket 1). Those claims included state claims for breach of lease, conversion, and interference with business relationships, and two federal claims under 42 U.S.C. § 1983, identified as an unreasonable seizure claim and a due process claim. Id. at pp. 4-6. Plaintiff also sought an award of attorneys' fees and costs. Id. at p. 7 ¶ 3. Following a four-day jury trial, plaintiff prevailed on all five claims against the defendants. (Docket 140).

Plaintiff now seeks an award of his attorneys' fees, costs and expert witness fees pursuant to 42 U.S.C. § 1988(b) & (c). (Docket 148). Federal law specifically directs when a plaintiff prevails on his § 1983 claim "the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988(b). If a plaintiff prevails on a § 1981 or § 1981a claim, expert witness fees also may be assessed. 42 U.S.C. § 1988(c).

Section 1988 was enacted to provide access to the judicial process for individuals asserting civil rights claims. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) ("Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, authorizing the district courts to award a reasonable attorney's fee to prevailing parties in civil rights litigation."). Twelve factors are generally considered relevant in the court's analysis of the amount of attorneys' fees to be awarded. Those are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of 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.

Id. at 429-30 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

"[P]laintiff's claims for relief... involve a common core of facts [and were] based on related legal theories." Id. at 435. Because of the integration of claims, plaintiff's counsel's time was focused on "the litigation as a whole, [which] mak[es] it difficult to divide the hours expended on a claim-by-claim basis." Id. As a result, the court must "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Id.

"Attorney's fees are within the broad discretion of the district court and will not be reversed absent an abuse of discretion." Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (referencing Harmon v. City of Kansas City, 197 F.3d 321, 329 (8th Cir.1999)). "The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates." Id. (citing Fish v. St. Cloud State University, 295 F.3d 849, 851 (8th Cir. 2002) (referencing Hensley, 461 U.S. at 433)). "When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates." Id. (referencing Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2004)).

Defendants oppose plaintiff's motion for attorneys' fees for a number of reasons. First and foremost is their claim that defendants' motion for judgment as a matter of law (Docket 147) should be granted thereby defeating plaintiff's § 1983 claims. (Docket 157 at p. 6). This argument fails as the court denied defendants' motion for judgment as a matter of law. (Docket 168). Defendants' remaining objections to an award of attorneys' fees under § 1988(b) will be addressed as the court completes its analysis of the factors relevant to the amount which should be awarded as attorneys' fees in this case. The court will separately focus on the factors which are pertinent to this particular case.

Skill, Experience, Reputation, and Ability of Attorneys

Plaintiff has been represented by the Bangs, McCullen, Butler, Foye & Simmons, L.L.P., ("Bangs McCullen") law firm of Rapid City, South Dakota, since this litigation was filed in February 2011. (Docket 1). The attorneys of Bangs McCullen have an excellent reputation as trial attorneys. A number of their senior associates hold AV ratings from Martindale-Hubbell. (Docket 151 ¶ 3(c), (d) & (e)). The principal trial attorneys for Mr. Soltesz have wide experience in trying civil jury cases. Id. ¶ 3(a), (b) & (f). The court consistently finds the attorneys of Bangs McCullen well-prepared, articulate and focused when appearing in federal court.

Time and Labor

While a number of attorneys provided legal services to Mr. Soltesz throughout this litigation, the primary attorneys have been Rodney Schlauger, Eric Pickar and Sarah Baron-Houy. Mr. Schlauger's hourly rate as a senior partner in the law firm is $250. (Docket 151 ¶ 3). Until January 2013, Mr. Pickar's hourly rate as an associate was $175 and since then as a junior partner his rate was $200 per hour. Id. Ms. Baron-Houy's hourly rate as an associate until January 2014 as $175 and then as a junior partner was $200.[3] Id. Four paralegals who worked with the attorneys bill for their services at $75 per hour. Id. ¶ 4. Defendants have not objected to or challenged the hourly rates sought by Bangs McCullen.

The court previously concluded $175 per hour is an appropriate rate for an attorney with the legal background comparable to the associates who participated in this litigation and $250 per hour was appropriate for an attorney with a comparable legal background as the senior partners in this case. See Hautala v. Progressive Direct Insurance Co., CIV. 08-5003-JLV, Docket 77 at p. 1 (D.S.D. 2011); Beyer v. Medico Insurance, et al., CIV. 08-5058-JLV, Docket 65 at p. 3 (Magistrate Judge Veronica L. Duffy) (D.S.D. 2010). The rate of $200 per hour is appropriate and reasonable in the community for attorneys with the level of legal experience of Mr. Pickar and Ms. Baron-Houy. See also Docket 150 ¶ 3. Based on the court's own knowledge of the community, $75 per hour is an appropriate and reasonable rate for the services of a paralegal.

The court finds the rates sought by Bangs McCullen are reasonable and appropriate for this civil rights litigation. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (plaintiff "produce[d] satisfactory evidence... [and the attorneys'] requested rates are in line with those prevailing in the community for similar services... of reasonably comparable skill, experience, and reputation.").

The "Undesirability" of the Case

From the court's perspective, the case had a number of "undesirable factors" from the very beginning. First, Mr. Soltesz engaged in a physical confrontation with one of his employees. If Mr. Soltesz was the aggressor, a jury may not have been very receptive to his civil rights claims. With video footage of part of the event, uncertainty existed regarding the jury's assessment of Mr. Soltesz' conduct.

Second, Mr. Soltesz had a history of delayed payments to the Rushmore Plaza Civic Center under his lease obligation. The manner in which he handled lease payments created credibility problems with his claims for lost business income or for interference with business relationships.

Third, Mr. Soltesz was arrested and was convicted in the United States District Court at Rapid City for a drug offense after he was ...

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