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Prison Legal News v. Schwarzenegger, Attorney Fee Order, California DOC Censorship 2008

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Case 4:07-cv-02058-CW

Document 35

Filed 04/10/2008

Page 1 of 20

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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PRISON LEGAL NEWS,

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No. C 07-02058 CW

Plaintiff,

ORDER GRANTING IN
PART PLAINTIFF'S
MOTION FOR
RECOVERY OF FEES
AND ESTABLISHMENT
OF A SEMI-ANNUAL
FEE PROCESS

v.
ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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/

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Plaintiff Prison Legal News has filed a motion for recovery of
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reasonable attorneys' fees and establishment of a semi-annual fees
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process.

Defendants oppose the motion.

The motion was decided on

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the papers.

Having considered all of the papers filed by the

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parties, the Court grants Plaintiff's motion in part and denies it
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in part.
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BACKGROUND
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Plaintiff Prison Legal News (PLN) is an organization that
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alleged that the California Department of Corrections and
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Rehabilitation (CDCR) illegally censored its publications.

In

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January, 2006, the parties entered into an agreement to negotiate
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Case 4:07-cv-02058-CW

Document 35

Filed 04/10/2008

Page 2 of 20

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in order to settle Plaintiff's claims and to avoid litigation.

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agreement to negotiate provided that Plaintiff "shall be the

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prevailing party for purposes of reasonable attorneys' fees, costs

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and expenses pursuant to 42 U.S.C. § 1988 and other relevant fee

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shifting statutes."

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The

Rosen Decl., Ex. 8 at Appx. A ¶ 8.

In December, 2006, the parties entered into a settlement

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agreement.

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pay to PLN's counsel reasonable attorneys' fees, costs and expenses

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until the time that this Settlement Agreement is signed by the

The settlement agreement provides that "CDCR agrees to

United States District Court
For the Northern District of California

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parties. . . ."

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provides that

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Id. at Ex. 8 ¶ 7.

The settlement agreement also

PLN and its attorneys expressly reserve their rights to
pursue claims for attorneys' fees, costs and expenses
for work performed after the time the Settlement
Agreement is signed by all parties, including for work
spent on substantive issues related to this Agreement
and/or work spent securing their fees for fees and
collecting any and all fees and expenses that are due to
them. The CDCR expressly reserves its right to oppose
any such claim. The Parties agree that all issues
pertaining to any such attorneys' fees, costs and
expenses are unresolved and therefore are subject to
Paragraphs 9-10 of this Agreement

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Id. at ¶ 7(b).

Paragraph nine provides that the parties will

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request that the Court "dismiss the complaint, but retain
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jurisdiction to enforce the Settlement Agreement, including without
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limitation, disputes over Defendant's compliance with the terms of
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this Agreement and the amounts of the attorneys' fees, costs and
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expenses to be paid to Plaintiff's attorneys."

Id. at ¶ 9.

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Paragraph ten provides that the parties will submit to jurisdiction
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in this District for purposes of enforcing the settlement
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agreement.
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Case 4:07-cv-02058-CW

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Document 35

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The settlement agreement also provides that within 150 days of

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its execution, Plaintiff would file a complaint in this district

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alleging the claims resolved by the settlement agreement and that

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the claims would be immediately dismissed, with the Court retaining

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jurisdiction to resolve any disputes over compliance or attorneys'

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fees.

Id. at ¶ 8.

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2007.

On August 22, 2007, the parties filed a stipulation and

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request for dismissal of the case without prejudice.1

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Plaintiff filed this complaint on April 12,

Between December 12, 2006 and September 5, 2007, the parties

United States District Court
For the Northern District of California

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attempted to resolve their disputes regarding fees and costs.

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parties were able to agree to the amount to which Plaintiff was

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entitled for work done before December 12, 2006, when the

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settlement agreement was executed.

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for work performed by its attorneys after December 12, 2006 and for

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establishment of a semi-annual fees process.

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The

Now Plaintiff moves for fees

DISCUSSION
I.

Entitlement to Fees
Under 42 U.S.C. § 1988, "the court, in its discretion, may

19

allow the prevailing party, other than the United States, a

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reasonable attorney's fee as part of the costs."

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plaintiffs are normally entitled to fees unless special

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circumstances render an award unjust."

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Sound Power & Light Co., 875 F.2d 695, 696 (9th Cir. 1989).

"Prevailing

Muckleshoot Tribe v. Puget

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1

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The parties originally asked the Court not to close this case
upon its dismissal. At a November 27, 2007 case management
conference, the parties agreed that this case should be closed upon
resolution of this motion for attorneys' fees subject to retention
of jurisdiction for enforcement. In a concurrently filed order,
the Court now closes the case.

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3

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Defendants argue that, although the settlement agreement states

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that Plaintiff is the prevailing party for purposes of setting

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reasonable attorneys' fees and costs until the date the settlement

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agreement was signed by the parties, the plain language of the

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agreement "does not declare that Plaintiff is the prevailing party

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on work performed after that date."

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Defendants argue, Plaintiff is not entitled to fees under § 1988

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for any work done after the date the settlement agreement was

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signed.

Opposition at 4.

Therefore,

Plaintiffs counter that they may recover these fees

United States District Court
For the Northern District of California

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because they have not explicitly waived the right to collect fees

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for activities performed to ensure and enforce compliance with the

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settlement agreement.

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In Muckleshoot Tribe, the Ninth Circuit held that "a waiver of

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attorneys' fees may be established by clear language in the

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release" or, in some circumstances, "where the language in the

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release is unclear or ambiguous, [by] the intent of the parties

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that the attorneys' fees be waived."

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explicit or implicit waiver, a prevailing plaintiff will normally

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be entitled to recover fees.

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Id. at 698.

Absent such an

Id. at 696.

Defendants argue that Plaintiff's reservation of its right to

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seek fees for work performed after the agreement was signed and

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Defendants' reservation of their right to oppose such a request

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constitutes a fee waiver.

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authority for such a reading of a reservation of rights.

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Plaintiff points out, such a reservation of rights clearly

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establishes that it does not waive its right to fees for work

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performed after the settlement agreement was signed.

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However, Defendants do not cite any

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As

Case 4:07-cv-02058-CW

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Page 5 of 20

Defendants next argue that Plaintiff is not a prevailing party

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"automatically" entitled to fees for work performed after the

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settlement agreement was signed and, for purposes of work performed

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after the agreement was signed, "Plaintiff is entitled to

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prevailing party status only after succeeding on a motion to

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enforce a material violation of the Settlement Agreement based upon

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proving a constitutional violation."

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Plaintiff does not argue that it is "automatically" entitled to

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fees.

Opposition at 6.

However,

Rather, Plaintiff has filed a motion arguing that it is the

United States District Court
For the Northern District of California

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prevailing party for purposes of the work performed after the

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settlement agreement was signed and that the amount requested is

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reasonable.

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Defendants' only argument that Plaintiff is not the prevailing

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party for purposes of work performed after the settlement agreement

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was signed is that the agreement "required both parties to

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undertake work after the date of settlement, specifically the

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filing of a complaint and a dismissal."

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Moreover, Defendants argue, "No significant amount of work was

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necessary to accomplish this task."

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and do argue that the amount of fees requested by Plaintiff is

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unreasonable, the minimal nature of the work is not a sufficient

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basis on which to deny fees altogether.

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notes, much of the work it performed after signing the settlement

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agreement was anticipated by the agreement and necessary to

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effectuate its terms.

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entitled to attorneys' fees for work performed after the settlement

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agreement was signed and turns to the reasonableness of the fees

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Id.

Opposition at 6.

Although Defendants can

Further, as Plaintiff

Therefore, the Court finds that Plaintiff is

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Case 4:07-cv-02058-CW

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II.

Filed 04/10/2008

Page 6 of 20

requested.

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Document 35

Reasonableness of Fees

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In the Ninth Circuit, reasonable attorneys’ fees are

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determined by first calculating the “lodestar.”

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Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).

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‘lodestar’ is calculated by multiplying the number of hours the

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prevailing party reasonably expended on the litigation by a

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reasonable hourly rate.”

9

359, 363 (9th Cir. 1996).

Jordan v.
“The

Morales v. City of San Rafael, 96 F.3d
There is a strong presumption that the

United States District Court
For the Northern District of California

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lodestar figure represents a reasonable fee.

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1262.

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figure upon consideration of additional factors that may bear upon

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reasonableness.

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(9th Cir. 1975).

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labor required, (2) the novelty and difficulty of the questions

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involved, (3) the skill requisite to perform the legal service

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properly, (4) the preclusion of other employment by the attorney

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due to acceptance of the case, (5) the customary fee, (6) whether

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the fee is fixed or contingent, (7) time limitations imposed by the

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client or the circumstances, (8) the amount involved and the

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results obtained, (9) the experience, reputation, and ability of

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the attorneys, (10) the "undesirability" of the case, (11) the

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nature and length of the professional relationship with the client,

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and (12) awards in similar cases.

Jordan, 815 F.2d at

However, the court may adjust the award from the lodestar

Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70
The twelve Kerr factors are (1) the time and

Id.

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The Supreme Court has recognized that, while it is appropriate

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for the district court to exercise its discretion in determining an

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award of attorneys’ fees, it remains important for the court to

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Case 4:07-cv-02058-CW

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Page 7 of 20

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provide “a concise but clear explanation of its reasons for the fee

2

award.”

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Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985) (in computing an award,

4

the district court should provide a “detailed account of how it

5

arrives at appropriate figures for ‘the number of hours reasonably

6

expended’ and ‘a reasonable hourly rate’”) (quoting Blum, 465 U.S.

7

at 898).

8
9

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Hall v.

Plaintiff requests a total of $138,781.29 in fees and costs
for work on the case between December 12, 2006, the date the

United States District Court
For the Northern District of California

10

settlement agreement was signed, and August 31, 2007.

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represents $95,306.50 in attorneys' fees and $1,376.41 in expenses

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for time spent on the underlying litigation and $42,098.38 in

13

attorneys' fees and expenses incurred in relation to the instant

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attorneys' fees claim.

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is unreasonable on several grounds.2

This amount

Defendants argue that the amount requested

16

A.

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Defendants first argue that Plaintiff improperly included fees

Non-Litigation Activities

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for 10.65 hours spent on "activities unrelated to litigation" such

19

as drafting press releases and responding to media inquiries.

20

Ninth Circuit has held, "Where the giving of press conferences and

The

21
2

27

Defendants include a general argument that 99.60 hours of
work billed by Plaintiff's attorneys is not sufficiently detailed
because they utilized "block billing," that is, they billed as a
lump sum across two or more discrete tasks so that someone
reviewing the record cannot ascertain how much time was charged to
complete a specific task. However, Defendants state that "those
entries have not been questioned here solely on the basis of the
billing method." A review of the challenged entries reveals that
they are sufficiently specific to determine how much time was
charged to complete a specific task. Therefore, the Court will not
reduce compensation for the hours based on Defendants' claim that
the time entries are block-billed.

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Case 4:07-cv-02058-CW

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performance of other lobbying and public relations work is directly

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and intimately related to the successful representation of a

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client, private attorneys do such work and bill their clients.

4

Prevailing civil rights plaintiffs may do the same."

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of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), reh'g denied

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and opinion vacated in non-relevant part, 984 F.2d 345 (1993).

7

Davis v. City

Plaintiff's counsel asserts that the press releases and

8

interviews with members of the press were necessary to the success

9

of this litigation.

As Plaintiff argues, absent such press

United States District Court
For the Northern District of California

10

coverage, the inmates who subscribe to its publication "would be

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unlikely to learn of the terms of the Agreement, which include a

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subscription to Prison Legal News for every CDCR institution's

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libraries."

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Plaintiff's goal of improving prisoner access to its publication.

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The Court will not reduce Plaintiff's attorneys' compensable hours

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on this basis.

Reply at 11.

This knowledge was crucial to

17

B.

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Defendants next challenge $11,628.12 in fees based on 52.32

Administrative and Clerical Activities

19

hours of work performed by attorneys and paralegals that they

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allege is administrative or secretarial.

21

held that "purely clerical or secretarial tasks should not be

22

billed at a paralegal rate, regardless of who preforms them."

23

Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989).

24

expert John Trunko identifies tasks including "updating and

25

organizing files, calendaring, supervising support staff, filing

26

and reviewing their billing statements" that Defendants assert they

27

should not be required to pay.

28

The Supreme Court has

Defendants'

Without citation, Trunko concludes,
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Case 4:07-cv-02058-CW

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"Administrative and clerical activities are considered to be part

2

of a law firm's overhead and, as such, included within the law

3

firm's hourly rates for professional services.

4

not properly chargeable to a client or recoverable in litigation."

5

Trunko Decl. ¶ 11.

They are generally

6

However, the Ninth Circuit has held that:

7

If the attorney’s hourly rate already incorporates the
cost of work performed by non-attorneys, then courts
should not compensate for these costs as an additional
reasonable attorney’s fee. The key . . . is the billing
custom in the relevant market. Thus, fees for work
performed by non-attorneys such as paralegals may be
billed separately, at market rates, if this is the
prevailing practice in a given community. Indeed, even
purely clerical or secretarial work is compensable if it
is customary to bill such work separately, though such
tasks should not be billed at the paralegal rate,
regardless of who performs them. . . . [T]he district
court may properly insist that the [moving party] show
that it is the custom in the relevant community to bill
separately for work performed by the non-attorneys at
issue . . . .

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15

Trustees of Constr. Indus. and Laborers Health and Welfare Trust v.
16
Redland, 460 F.3d 1253, 1257 (9th Cir. 2006) (internal quotation
17
marks and citations omitted).
18
Lead counsel for Plaintiffs, a partner at the firm, declares
19
that the challenged tasks "are all tasks that would be billed by
20
me, my firm and San Francisco Bay Area attorneys to clients who are
21
billed and who pay bills on a current basis."

Rosen Decl. ¶ 17.

22
However, Plaintiffs simply argue that "[m]any of the tasks"
23
challenged as clerical "are in fact crucial tasks that require
24
attorney or paralegal attention."

Reply at 11.

As examples,

25
Plaintiffs note that Defendants challenge fees for calendaring and
26
reviewing billing statements.
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Case 4:07-cv-02058-CW

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Document 35

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Page 10 of 20

The challenged tasks were performed by one partner, three

2

associates and two paralegals.

3

reviewing the challenged billing items, the Court finds that the

4

following items are clerical tasks that cannot be billed at a

5

paralegal or attorney rate:

6

See Trunko Decl., Ex. G.

Date

Name

Task

Hours
Billed

Hourly
Rate

Amount
Billed

12/12/06

K. Le

Create index
for settlement
agreement
binder

.20

$170

$34

3/8/07

K. Le

File case
emails

.20

$170

$34

3/8/07

K. Le

File
correspondence
and memos

.20

$170

$34

3/13/07

K. Le

File memos and
correspondence

.20

$170

$34

3/19/07

M.
Wilkinson

File relevant
pages from AW
email re: CA
regulatory
notice registry

.30

$160

$48

4/19/07

K.
Walczak

Update case
calendar w/new
dates

.30

$295

$88.50

4/23/07

M.
Wilkinson

Copy file and
courtesy copies
of proof of
service, proof
of service
cover letter
and prep for
Fed Ex

.90

$160

$144

6/6/07

A. Whelan

Conf w/ support
staff re
processing same
and emails
to/from client
re same

.15

$340

$51

7
8
9
10
United States District Court
For the Northern District of California

After

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25
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Case 4:07-cv-02058-CW

1

Document 35

Filed 04/10/2008

Page 11 of 20

6/7/07

M.
Wilkinson

2 letters re:
notice of
lawsuit and
waiver of
service of
summons, gather
enclosures,
make copies,
scan, file,
mail, and
circulate

2.7

$160

$432

6/25/07

M.
Wilkinson

Print and
gather docs for
KMW re filing
deadlines and
ADR

.40

$160

$64

10

7/31/07

S. Rosen

Filing

.10

$700

$70

11

7/31/07

M.
Wilkinson

Scan and
circulate
letter re RPMG
hearing
transcript

.10

$160

$16

8/22/07

K.
Walczak

Supervise
arranging for
messenger for
courtesy copies
of stipulated
dismissal,
settlement
agreement,
proposed order
to court

.20

$295

$59

2
3
4
5
6
7
8

United States District Court
For the Northern District of California

9

12
13
14
15
16
17
18
19

TOTAL

$1,108.50

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Therefore, the Court reduces Plaintiff's requested fees by

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22

$1,108.50.

23

C.

Vague Billing Entries

24

Defendants next challenge $14,241.25 in fees based on 20.88

25

hours of entries they argue are "non-descriptive."

Opposition at

26

11.

27

by Sanford Rosen for email or conferencing that do not indicate the

28

11

Almost all of the entries challenged on this basis are entries

Case 4:07-cv-02058-CW

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Page 12 of 20

1

subject of such communications or do not indicate the other party

2

or parties involved in the communications.

3

note, many of those entries "are readily understood when viewed in

4

the context of the surrounding entries."

5

example, it is clear that the January 4, 2007 entry for "email

6

to/from AW" was about a letter regarding settlement payment when

7

read in the context of a billing entry by Amy Whelan for "ltr from

8

M. Jorgenson re settlement payment; email to SJR re same" made on

9

the same date.

Rosen Decl., Ex. 9 at 2.

However, as Plaintiffs

Reply at 12.

For

Moreover, it is not

United States District Court
For the Northern District of California

10

unreasonable to expect that the partner supervising the case would

11

have multiple entries for conferencing and emailing with the

12

associates working with him.

13

Plaintiff's attorneys' compensable hours on this basis.

The Court will not reduce the

14

D.

15

Defendants next challenge $414 of fees based on 1.35 hours of

Multiple Attendance and Excessive Internal Conferencing

16

conferences and meetings where multiple attorneys were in

17

attendance and $8,125.22 of fees based on 27.06 hours of intra-

18

office conferencing.

19

denying these fees in their opposition and simply cite their expert

20

Trunko's declaration in support of their request.

21

Defendants do not provide any legal basis for

Defendants' request for a reduction for multiple attendance is

22

based on two telephone conferences, one which was attended by a

23

partner and two associates of Plaintiffs' attorneys' firm and

24

another which was attended by two associates.3

Defendants do not

25
3

27

Defendants mistakenly argue that four attorneys billed for
one of these calls; however only three attorneys are included in
Trunko's "multiple attendance" analysis. Trunko Decl., Ex. I. It
appears that Trunko mistakenly included an entry for a conversation

28

12

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Case 4:07-cv-02058-CW

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Page 13 of 20

1

provide any basis for a finding that having more than one

2

Plaintiff's attorney present at these conferences with counsel for

3

Defendants was unreasonable.

4

reduce Plaintiff's attorneys' compensable hours on this basis.

5

Accordingly, the Court will not

Defendants cite only Trunko's declaration in support of their

6

argument that Plaintiff's requested fees should be reduced for

7

excessive internal conferencing.

8

"Frequent conferencing among attorneys has often been criticized by

9

the courts and may indicate excessive staffing or billing for

Without citation, Trunko argues,

United States District Court
For the Northern District of California

10

communications of an administrative nature."

11

Trunko next states that over twenty-one percent of Plaintiff's

12

requested fees are based on billing for intra-office conferencing,

13

a figure Trunko describes as "significant."

14

concludes that the "amount of such conferencing was undoubtedly

15

increased as a result of the involvement of multiple attorneys in

16

the case" before he recommends resolving the issue by arbitrarily

17

challenging "the fees billed by the multiple biller(s) for the

18

conference other than the participant in the conference with the

19

highest total fees for the conference."

20

Defendants provide any explanation for this methodology.

21

as another court stated in rejecting a challenge to fees based on

22

the identical methodology, "A conference with only one participant

23

is no longer a conference.

24

defendant's] view would be to hold that all conferencing by

Id.

Trunko Decl. ¶ 14.

Id.

He therefore

Neither Trunko nor
Moreover,

The upshot of accepting [the

25
26
27

between Amy Whelan and "M. Jorgenson" as an example of a conference
with multiple attendance even though Whelan was the only
Plaintiff's attorney who participated or billed. See Id. at 2.

28

13

Case 4:07-cv-02058-CW

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Page 14 of 20

1

Plaintiff's attorneys was excessive and duplicative."

2

Daimler Chrysler Corp., 520 F. Supp. 2d 589, 605 (D.N.J. 2007).

3

However, Defendants have provided no evidence or argument that any

4

conference was excessive or duplicative.

5

not reduce Plaintiff's attorneys' compensable hours on this basis.

Chin v.

Therefore, the Court will

6

E.

7

Defendants next argue that they should not be required to pay

Research Presumed Familiar

8

for attorney time spent researching issues that Trunko opines

9

"would be presumed to be familiar to experienced counsel."

Trunko

United States District Court
For the Northern District of California

10

Decl. ¶ 15.

11

this determination.

12

entries are based on time spent researching local procedural rules.

13

See Trunko Decl., Ex. K.

14

subject to change and failure to comply with them can result in

15

prejudice to an attorney's clients.

16

Plaintiff's attorneys' compensable hours on this basis.

Neither Trunko nor Defendants provide any basis for
It appears that almost all of the challenged

As Plaintiffs note, such rules are

The Court will not reduce

17

F.

18

Defendants next argue, "Of the hours claimed by Plaintiff's

Other Duplicative and Potentially Excessive Time

19

counsel for work performed since December 12, 2006[,] 315.27 hours

20

and $103,172.67 were spent on duplicative and excessive

21

timekeeping."

22

Defendants cite only Trunko's declaration in support of this

23

argument.

24

Plaintiff's counsel has billed for 35.43 hours of researching,

25

drafting, reviewing and editing the complaint prior to settlement

26

and that counsel spent additional time on the complaint after the

27

settlement agreement was executed.

28

Opposition at 12.

As with their other arguments,

Defendants cite as an example of excessive billing that

14

However, Plaintiff notes that

Case 4:07-cv-02058-CW

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Page 15 of 20

1

"the Complaint itself was a negotiated document, requiring back and

2

forth interaction with Defendants and their attorneys."

3

Reply Decl. ¶ 21.

4

complaint includes entries for communications with Defendants and

5

later revisions.

6

that thirty percent of Plaintiff's fee request is based on fees for

7

this fee request.

8

believe that the 125.60 hours spent on this fee request is

9

unreasonable.

United States District Court
For the Northern District of California

10

Rosen

Indeed the challenged time spent on the

See Trunko Decl., Ex. L-1.

Defendants also note

However, Defendants do not indicate why they

Defendants next argue that a twenty-five percent reduction in

11

fees is appropriate based on Trunko's conclusion that Plaintiff's

12

attorneys have submitted fees for excessive and redundant tasks.

13

The only factual basis for this argument is Trunko's statement that

14

"[i]n some cases, the time billed for various projects appears

15

potentially excessive."

16

attorneys have already reviewed their billing records and made

17

discrete billing reductions of $14,177.50.

18

reduce Plaintiff's attorneys' compensable hours further than

19

counsel already has.

Trunko Decl. ¶ 16.

Moreover, Plaintiff's

The Court will not

20

G.

21

Defendants next challenge $951.70 of Plaintiff's request for

Expenses

22

$1,492.79 in expenses related to litigation.

23

for this challenge is citation to Trunko's conclusion that the

24

expenses claimed are questionable because he believes they are not

25

adequately documented or they are general firm overhead that would

26

not normally be charged to a client.

27

particular, Defendants argue that Plaintiff's charge for $464.69

28

15

Again, the only basis

See Trunko Decl. ¶ 17.

In

Case 4:07-cv-02058-CW

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1

for online and Westlaw research should be accompanied by further

2

documentation.

3

accrued by a law firm in the course of running a business.

4

However, Plaintiff submits a declaration indicating that both the

5

level of detail of the billing and the request for compensation for

6

such research are consistent with the firm's practice for its

7

paying clients and in its fee applications.

8

¶ 26.

9

documented and reasonable.

United States District Court
For the Northern District of California

10

Moreover, he argues, such charges are normally

See Rosen Reply Decl.

The Court finds that these expenses are adequately

Defendants next challenge Plaintiff's claim for $0.20 per page

11

for photocopying.

12

counsel routinely charges $0.25 per page to its paying clients and

13

that these Defendants routinely pay them $0.20 per page in other

14

cases.

15

photocopying.

However, Plaintiff provides evidence that

The Court will not reduce the amount charged for

16

Finally, Defendants argue that Plaintiff's travel expenses

17

should be reduced because counsel failed to provide receipts or

18

documentation relating to travel on May 11, 2007.

19

items are for $8.00 in tolls and $15.79 and $7.50 in gas for travel

20

to a public hearing on May 11, 2007.

21

Plaintiff provides evidence that this is the level of detail

22

included in counsel's bills to paying clients and in other fee

23

requests.

24

to support Plaintiff's request.

25

compensation sought for expenses.

The challenged

Trunko Decl., Ex. N.

The Court finds that this level of detail is sufficient
The Court will not reduce the

26

H. Hourly Rate

27

Determining a reasonable hourly rate is a critical inquiry.

28

16

Case 4:07-cv-02058-CW

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1

Jordan, 815 F.2d at 1262 (citing Blum v. Stenson, 465 U.S. 886, 895

2

n.11 (1984)).

3

court may take into account: (1) the novelty and complexity of the

4

issues; (2) the special skill and experience of counsel; (3) the

5

quality of representation; and (4) the results obtained.

6

Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir.

7

1988).

8

calculation, and should not serve as independent bases for

9

adjusting fee awards.

In establishing the reasonable hourly rate, the

See

These factors are subsumed in the initial lodestar

Morales, 96 F.3d at 363-64.

The reasonable

United States District Court
For the Northern District of California

10

rate inquiry should also be informed by reference to the prevailing

11

market rates in the forum district.

12

1392, 1405 (9th Cir. 1992).

Gates v. Deukmejian, 987 F.2d

13

Plaintiff seeks an hourly rate of $700 for Sanford Jay Rosen,

14

a 1962 law school graduate and the lead attorney on its case, $340

15

for Amy Whelan, a 2001 law school graduate, $325 for Meghan Lang, a

16

2002 law school graduate, $295 for Kenneth Walczak, a 2003 law

17

school graduate, and between $160 and $170 for paralegals and law

18

student interns.

19

exorbitant and go on to note that the hourly rates requested exceed

20

the average rates charged by law firms in California, $353 for

21

partners and $252 for associates.

22

rates claimed by Plaintiff's counsel far exceed the rates allowed

23

by the Prison Litigation Reform Act (PRLA).

24

not, and indeed cannot, argue that this case is governed by the

25

PRLA.

Defendants argue generally that these rates are

Defendants further note that the

However, Defendants do

26

The only specific argument that Defendants make is that

27

Plaintiff has not provided sufficient evidence to establish that

28

17

Case 4:07-cv-02058-CW

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1

Mr. Rosen's claimed hourly rate of $700 is the prevailing market

2

rate.

3

one other Bay Area law firm bills its managing partner at $700 per

4

hour but name two firms that do so--Altshuler Berzon LLP and Cooley

5

Godward.

6

at least eight law firms that billed over $700 an hour in recent

7

years.

8
9

Defendants argue that Plaintiff only provides evidence that

Opposition at 14-15.

In fact, Plaintiff's expert cites

See, e.g., Pearl Decl. at 8, 10, 11, 13-15.

Defendants also argue that Plaintiff's attorneys' claimed
rates should be reduced because the case "did not involve complex

United States District Court
For the Northern District of California

10

legal issues" and involves "issues which Plaintiff has been

11

litigating all over the United States for the past several years.4

12

Opposition at 14.

13

level of skill and significant work were required to reach a

14

settlement in this case.

15

rates claimed by Plaintiff's attorneys.

However, Plaintiff provides evidence that a high

The Court will not reduce the hourly

16

I.

17

Plaintiff argues that it is entitled to interest on these fees

Interest

18

and costs dating back at least to September 12, 2007, the date by

19

which Defendants received notice of the amount of fees and costs

20

claimed by Plaintiff, if not to the date of the Settlement

21

Agreement, the date Plaintiff argues that it "secured its

22

entitlement to a general award of civil rights attorney's fees."

23

Motion at 11.

Indeed, the Ninth Circuit has held, "Interest [on

24
25

4

27

Defendants also argue that the fact that this case was
resolved without prolonged litigation warrants a reduction in the
hourly rate. While the extent of litigation activities goes to the
number of hours spent on the case, it does not go to the complexity
of the issues themselves.

28

18

26

Case 4:07-cv-02058-CW

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1

attorneys' fees] runs from the date that entitlement to fees is

2

secured, rather than from the date that the exact quantity of fees

3

is set."

4

1995), cert. denied, 516 U.S. 1146 (1996).

5

respond to this argument.

6

did not state that Plaintiff would be entitled to attorneys' fees

7

for work performed after the agreement was signed; it only

8

recognized that Plaintiff might file a motion for fees for such

9

work.

Friend v. Kolodzieczak, 72 F.3d 1386, 1391-92 (9th Cir.
Defendants do not

Nonetheless, the settlement agreement

The Court finds that Plaintiff is only entitled to interest

United States District Court
For the Northern District of California

10

accruing subsequent to the date of this order.

11

II.

12

Establishment of Semi-Annual Fees Process
Plaintiff next argues that the Court should establish a semi-

13

annual process to protect its right to future fee awards.

14

Plaintiff argues that such a process is necessary because "[m]any

15

of the benchmarks set by the Settlement Agreement have not yet been

16

met."

17

Settlement Agreement specifically contemplates that PLN will take a

18

prominent role in ensuring full compliance with the terms of the

19

Agreement."

20

Motion at 11.

Further, Plaintiff argues that "the

Id.

However, as Defendants note, the Settlement Agreement does not

21

specifically establish a right to ongoing monitoring of the

22

implementation of the agreement's terms.

23

Defendants will provide Plaintiff with specific documents and that

24

Plaintiff may file motions to enforce the agreement if it can prove

25

a constitutional violation.

26

compliance work in this matter will be far less extensive than" in

27

other cases with regular fees procedures.

28

It only provides that

Moreover, Plaintiff "anticipates that

19

Motion at 12.

The Court

Case 4:07-cv-02058-CW

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1

is not convinced that a regular fees process is necessary or

2

appropriate at this time.

3

Plaintiff from filing further motions for attorneys' fees.

4
5

Of course, this does not preclude

CONCLUSION
For the foregoing reasons, Plaintiff's motion for attorneys'

6

fees is GRANTED in part and DENIED in part (Docket No. 23).

7

Court awards Plaintiff $137,672.79 in fees and expenses, to be paid

8

forthwith by Defendants.

9

The

IT IS SO ORDERED.

United States District Court
For the Northern District of California

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11

Dated:

4/10/08

12

CLAUDIA WILKEN
United States District Judge

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