possibility that any damage award would be low.
Moreover, as noted above, although defendants contended in their third motion for summary judgment, aimed at the remaining claim, that Lieback would have enjoyed qualified immunity, aside from any question of qualified immunity, it was at least questionable whether this matter even arose to the point of a constitutional violation or and was thus a claim for an alleged simple assault and battery which, without any underlying substantial federal claim, should have been tried in the state court. See Wise v. Pea Ridge School District, 855 F.2d 560 (8th Cir. 1988); Woodard v. Los Fresnos Independent School District, 732 F.2d 1243 (5th Cir. 1984).
Moreover, whatever success was achieved by the settlement was an award of private damages which could not be said to benefit the public interest nor indirectly benefit anyone else entering the school district premises. The school district was not required to take any steps with regard to any alleged policy or custom which would have indirectly benefitted others. It would appear, therefore, that the disproportionately low private damage award in relation to the total fees sought can be considered. See Riverside v. Rivera, 477 U.S. 561, 91 L. Ed. 2d 466, 106 S. Ct. 2686 (1986) (Powell, J. concurring, p. 585 n. 3).
If the court were to use the Planned Parenthood approach, that is, since plaintiffs did not prevail on 66% of the claims and therefore the award should be reduced by 60%, the amount of fees and costs would be $ 17,096.00 of the total amount sought for work on the case in chief as well as the fee petition. However, it would appear to be better to attempt to identify time spent on the losing issues and allocate general time to those issues on some reasonable basis.
Defendants assert and plaintiffs do not deny that plaintiffs' "time sheets" show that 62 hours were directly devoted to two of the three issues in this case on which plaintiffs did not prevail. At plaintiffs' counsel's hourly rate, this translates into $ 10,850.00 or approximately 33% of the total compensation requested for the work on the case in chief. Thus, this $ 10,850.00 should be deducted from the total amount claimed.
With respect to the remainder of the fees requested for work on the case in chief, counsel's time sheet does not indicate how much time was devoted to the losing issues and thus can be described as "general time." For example, a good deal of this time involved meetings with clients, preparation and revision of the complaint and service of the complaint. Other time was spent on depositions and other discovery requests. None of this time is detailed with respect to those amounts which may have related to the two losing claims. However, it is obvious that some of this time would so relate. For example, in connection with the motion for summary judgment, deposition testimony was set forth wherein certain school officials were questioned about their knowledge of any other incidents in the past involving Lieback or others.
On the basis of documents presented, the court can agree that plaintiffs' counsel did not make much of an attempt to negotiate a settlement of the fee question, but rather his approach was to demand a fee for all or nearly all of the time spent on the case, with nothing in the way of counter-proposal to defendants. In any event, the time spent on the fee application not only seems high when compared to times spent on the case in chief, but also counsel's time records do not permit specific allocation of any of this time to the losing claims.
Nor can it be precisely determined what costs are allocable to the losing claims. Under these circumstances, the amounts requested for expenditure of this general time on the case in chief, on the fee petitions and the amount of costs requested should be reduced by 33%, the amount ($ 10,850.00) by which the specifically identified time on the losing summary judgment issues bears to the total of the amount of fees requested for work on the case in chief ($ 32,593.25).
In this regard, the Hensley court stated as follows:
A request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of a fee. Where settlement is not possible, the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise "billing judgment" with respect to hours worked . . . and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.
Further, in this regard, the Hensley court quoted with approval from the language of a First Circuit decision:
As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney's fees in a suit in which plaintiffs were only partially successful if counsel's records do not provide a proper basis for determining how much time was spent on particular claims.