United States District Court, D. Arizona
ORDER
Honorable Roslyn O. Silver, Senior United States District
Judge.
Plaintiffs
have filed two motions related to payment. (Docs. 3017,
3026.) The first seeks attorneys' fees and costs for
their efforts to enforce the Stipulation from July 1, 2017
through June 30, 2018. (Doc. 3017.) The second relates to
payment for monitoring fees for 2018 (Doc. 3026). As detailed
below, the Court will grant both motions.
I.
Fees and Costs for Enforcement
This is
Plaintiffs second motion for fees stemming from their efforts
to enforce the Stipulation. In ruling on the first motion,
which addressed Plaintiffs' costs and fees prior to July
1, 2017, the Court concluded that Plaintiffs were entitled to
fees and detailed its rationale for the awarded hourly rate,
the application of a multiplier, and several limitations on
costs. (Doc. 2902.) Plaintiffs' current request concerns
work between July 1, 2017 and June 30, 2018 but Defendants
offer the same objections to this request as they did to the
first. Having previously considered their objections, there
is no discernable basis to deviate from the Court's
rationale and the Court will only briefly address
Defendants' objections.
Defendants
maintain that the only way to determine whether Plaintiffs
were the prevailing party with respect to a dispute raised in
a motion to enforce (thereby triggering recovery of Motion to
Enforce Fees pursuant to Paragraph 43) is if each time entry
includes: (1) the task performed in bringing a dispute by way
of a motion to enforce; (2) the performance measure and
facility sought to be enforced; and (3) the date of the
enforcement motion. Although not entirely clear, Defendants
appear to assume that compensable fees must be tied to
filing a motion to enforce. The Court does not read
the Stipulation so narrowly. To do so would only compensate
Plaintiffs for bringing the initial motion to enforce. As
Defendants have amply demonstrated, however, that for many
critical healthcare measures the motion to enforce is but the
first step in the seemingly unending march toward compliance.
Because the efforts expended by Plaintiffs were uniformly
geared toward enforcing the Stipulation, which was only
necessary because of Defendants' failure to comply with
the Stipulation in the first instance (or second or third).
Nor
does the Court have any difficulty crediting Plaintiffs even
if an entire motion to enforce was not ultimately successful
because the effort to review Defendants' compliance is
not lessened if a small fraction of performance measures are
ultimately deemed compliant or ineligible for a remedial plan
because of the delay between filing the motion and the
Court's decision on it. In other words, if Defendants
bring a measure into compliance or show a trend toward
compliance, the Court still deems Plaintiffs the prevailing
party because the majority of performance measures were
noncompliant when Plaintiffs filed their motions to enforce.
Most
critically, however, Defendants do not meaningfully object to
Plaintiffs' specific bills and only lodge wholesale
objections that were not credited in the Court's first
order and are no more persuasive now.[1] For the reasons cited in the
Court's prior order, the Court also affirms its payment
rate and multiplier. To the extent Defendants' response
is an invitation to revisit those rulings, the Court
declines.
Based
on the Court's prior rulings, Plaintiffs have applied for
$1, 602, 955.20 in fees and $45, 082.60 in costs for a total
of $1, 648, 037.80 in work performed between July 1, 2017 and
June 30, 2018. Consistent with the Court's prior ruling,
however, Plaintiffs will not be compensated for unpaid law
clerk time. The Court will reduce the award by $14, 916 (or
$7458 before the multiplier). Thus, the Court will award
Plaintiffs $1, 588, 039.20 in fees and $45, 082.60 in costs
for a total of $1, 633, 121.80.
II.
Monitoring Fees Under Paragraph 44 of the
Stipulation
Plaintiffs
also move for partial payment of the $250, 000 annual
monitoring fee set forth in paragraph 44 of the parties
Stipulation. (Doc. 3017.) Paragraph 44 states in full:
Plaintiffs' counsel shall be compensated for work
reasonably performed or costs incurred to monitor or enforce
the relief set forth in this Stipulation up to $250, 000 per
calendar year. In exchange for Plaintiffs' agreement to a
cap on the amount of fees, Defendants shall not dispute the
amount sought unless there is an obvious reason to believe
that the work was unreasonable or the bill is incorrect. . .
. Plaintiffs' counsel shall submit an invoice for payment
quarterly along with itemized time records and expenses.
Defendants shall pay the invoice within thirty (30) days of
receipt. This limitation on fees and costs shall not apply to
any work performed in mediating disputes before the
Magistrate [Judge] pursuant to paragraphs 22, 29, and 31
above, or to any work performed before the District Court to
enforce or defend this Stipulation.
(Doc. 1185.) Plaintiffs allege that they submitted an invoice
consistent with Paragraph 44 on August 14, 2018 and received
no payment or response within 30 days. After two more failed
attempts to communicate with Defendants, Plaintiffs filed
their motion to enforce payment of the monitoring fees.
Defendants
raise two primary objections that can generously be described
as distractions. First, they claim that Plaintiffs should
have attempted to meet and confer before filing their motion,
ignoring that Plaintiffs' attempts to communicate that
went unanswered. Next, Defendants argue that Paragraph 44
does not deprive them of an opportunity to challenge
Plaintiffs' monitoring bills (and they go on to identify
several categories of objections). Defendants interpretation
of Paragraph 44 requires herculean effort. That provision
benefitted both sides by limiting Defendants' exposure
for monitoring fees by guaranteeing payment to Plaintiffs
within a time certain. Defendants- apparently-want an
unlimited amount of time to object to a negotiated fee
schedule. But none of Defendants' belated objections
present “an obvious reason to believe that the work was
unreasonable or the bill is incorrect.” Defendants were
required to pay the bill within 30 days and they did not; any
objection is therefore waived, and Defendants must remit any
remaining payment within 10 days.[2]
IT
IS THEREFORE ORDERED granting Plaintiffs' Motion
to Enforce Payment of Monitoring Fees. (Doc. 3026) Defendants
shall ensure that Plaintiffs' August 14, 2018 invoice is
paid in full within 7 days of the date of this Order with
interest ...