Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7

SABINUS A. MEGWA, ESQ. The Megwa Law Office 6811 South Central Avenue Phoenix, Arizona 85042 Telephone (602) 243-6151 State Bar Number: 011266 E-mail:[email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff's Motion for Award of Attorney's Fees and Related Non-Taxable Costs. 22 23 24 25 26 Judgment was entered on August 24, 2005. 27 28 2. Nature of the Case: I. 1. ELIGIBILITY: Judgment. On August 19, 2005 the jury rendered a verdict in favor of Plaintiff against Plaintiff, Nicholas Alozie, by and through counsel undersigned, pursuant to Rule 54(b)(2) of the Local Rules of the District Court, hereby files the following Memorandum in Support of ) NO. CIV'02 2639 PHX SRB ) ) Plaintiff, ) PLAINTIFF'S MEMORANDUM IN ) SUPPORT OF PLAINTIFF'S MOTION FOR vs. ) ) AWARD OF ATTORNEY'S FEES AND ) RELATED NON-TAXABLE COSTS The Mills Corporation, a foreign corporation; ) MillsServices Corp., a foreign corporation; and ) Arizona Mills, L.L.C., a foreign corporation, ) (Before The Honorable Susan R. Bolton) ) ) Defendants, ) ) Nicholas Alozie, a single man,

Defendants for the sum of $1.00 nominal damages and $100,000.00 in punitive damages. The

-1-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 1 of 14

1 2 3

Plaintiff's Complaint alleged that Defendants discriminated against him on the basis of his race and/or national origin in violation of 42 U.S.C. §1981 and 42 U.S.C. §1982. Plaintiff alleged that he was constructively evicted by Defendants.

4 5 6 7 8 9 (d) 10 11 12 13 14 15 16 17 18 19 20 Plaintiff prevailed on the 42 U.S.C. §1981 and 42 U.S.C. §1982 Civil Rights Act claims. 21 22 23 24 25 26 Pursuant to 42 U.S.C. §1988, the court, in its discretion, may allow the prevailing party, other 27 28 than the United States, a reasonable attorney's fees as part of the costs. 4. Relevant legal Authority: held on this matter beginning August 9, 2005. (a) (b) (c) Violation of 42 U.S.C. §1981. Violation of 43b U.S.C. §1982. Constructive eviction. Plaintiff's Complaint prayed for the following relief: (1) compensatory damages; (2) punitive or exemplary damages in an amount to be proven at trial; and (3) attorney's fees and costs incurred herein. 3. Successful/Unsuccessful Claims. Plaintiff pursued the following claims at the trial Constructive eviction. Plaintiff's Complaint pled the following causes of action: (a) (b) (c) 42 U.S.C. §2000(a). 42 U.S.C. §1981. 42 U.S.C. §1982; and

Plaintiff seeks attorneys' fees and costs pursuant to 42 U.S.C. §1988 under the following two specific statutory provisions governing the award of attorney's fees in discrimination cases: 42 U.S.C. §1981 and 42 U.S.C. §1982.

-2-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 2 of 14

1 2 3

II.

ENTITLEMENT.

The general rules regarding attorney's fees in discrimination cases provide that the prevailing party, which is the Plaintiff herein should ordinarily recover attorney's fees unless special

4 5 6 7 8 9 Maher v. Gagne, 448 U.S. 122, 129 (1980). Alternatively, Plaintiff qualifies as the "prevailing 10 11 12 13 14 15 16 17 18 19 20 Although the Court has the discretion to deny attorney's fees where "special circumstances" 21 22 23 24 25 26 substantial damages ; and (3) there was a private contingency fee agreement. Smiddy v. Varney, 665 27 28 F.2d 261 (9 Cir. 1981), cert. denied, 459 U.S. 829 (1982); See also Teitelbaum v. Sorenson, 648
th

circumstances exist. Newman v. Piggie Park Enter, 390 U.S. 400, 402 (1968); See also Hensley v. Eckerhart, 461 U.S. 424, 429, (1983). 1. Alozie is the "Prevailing Plaintiff".

Plaintiff Nicholas Alozie should be deemed a "prevailing plaintiff" if he "vindicate[s] rights".

plaintiff" if he "succeeds on any significant issue" in litigation which achieves some of the benefit the party sought in bringing suit. Hensley, 461 U.S. at 433; See also Davis v. Mason County, 927 F.2d 1473 (9th Cir.) (no reduction in attorney's fees in case where plaintiff prevailed on eighteen of twenty claims). Herein, Plaintiff should be deemed the prevailing Plaintiff since he succeeded at trial on two of the three claims brought to trial. Further, the two claims he succeeded on were all claims related to civil rights discrimination. 2. No Special Circumstances Exist to Deny Plaintiff's Claim for Attorney's Fees.

would make an award unjust. Very few circumstances qualify as "special circumstances", and Plaintiff contends that no such "special circumstances" exist in this case. In fact, the Ninth Circuit has rejected the following alleged special circumstances: (1) plaintiffs proceeded on their own rather than through a class action, (2) plaintiffs already recovered

-3-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 3 of 14

1 2 3

F.2d 1248, 1250 (error to use novelty of plaintiff's claim as ground for denying fee award under §1988); Goddard v. Babbitt, 547 F. Supp. 373, 375 (D. Ariz. 1985)(two considerations relevant to determining "special circumstances" are whether award of fees would further congressional purpose

4 5 6 7 8 9 $100,000.00 punitive damages), Plaintiff's award should not be a consideration in deciding whether 10 11 12 13 14 15 16 17 18 19 20 eviction claim, Plaintiff herein was very successful on the main issues in the case and was 21 22 23 24 25 26 more than 603.10 hours of work, compensated at a rate of $250.00 per hour. The parties did not 27 28 stipulate as to the reasonableness of the hours, or any other item relative to the fee request. III. REASONABLENESS OF REQUESTED AWARD undoubtedly a prevailing party. succeed on any significant issue in the litigation which achieves some of the benefit the party sought in bringing the suit. See Hensley v. Echerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). See also Hashimoto v. Dalton 118 F.3d 671, 677 (9th Cir. 1997). Regardless of the Court's dismissal of Plaintiff's claim under 42 U.S. C. Section 2000(a) and the jury verdict for defendant on constructive he is entitled to award of attorney's fees. To reduce Plaintiff's fee award from the amount requested herein because of the above factors would only serve to shift the burden of paying attorney's fees from Defendants to Plaintiff. Plaintiff may be considered a prevailing party for the purposes of attorney fee award if he in adopting attorney's fees statute and balance of equities.) Here, the Court should not reduce or eliminate Plaintiff's right to attorney's fees, even though Plaintiff has a private contingency fee agreement with his attorney. Likewise, although Defendants may argue that Plaintiff did not receive a substantial total award ($1.00 nominal damages and

The Plaintiff herein requests an overall award of attorney's fees of $150,775.00, representing

-4-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 4 of 14

1 2 3

Defendant's lead counsel did however acknowledge that his firm was billing $200.00 per hour on matter regarding this case. Furthermore, it appears that defendants' counsel were being paid as they bill their client rather than waiting more than three and one half years to be paid as in Plaintiff's

4 5 6 7 8 9 In April 2002, Plaintiff first retained counsel to represent him regarding his claim against 10 11 12 13 14 15 16 17 18 19 20 substantially higher than the fees requested herein by the undersigned of $150,775.00 multiplied by 21 22 23 24 25 26 various pre and post-judgment motions necessary to make Plaintiff whole, and efforts to keep the 27 28 client informed of the status of his case. 1.5. Part of the time and effort expended in obtaining the judgment is detailed in Exhibit C, attached hereto, and includes responding to a motion to dismiss, responding to discovery requests and preparing Plaintiff's discovery Requests to Defendants, filing of supplemental responses, meeting expert witnesses and filing disclosure statements, trial preparation, a five and one half days trial, Affidavit of counsel, Exhibit B, establishes the reasonableness of the time spent. Without the benefit of examining Defendants' attorneys' billing statement, it is highly likely that during the same time period, Defendants' counsel spent more total combined time on litigating this case and charged a combined substantial amount higher than the total attorney time spent by the undersigned and also Defendants. Plaintiff's counsel initiated a lengthy letter to Defendants detailing Plaintiff's claim in an effort to resolve the matter out of court. Defendants did not respond to Plaintiff's effort to resolve the matter and thereafter this lawsuit was filed by counsel on behalf of Plaintiff. Plaintiff's counsel expended almost three and one half years in obtaining judgment against Defendants. The attached counsel's situation. Pursuant to Local Rules the following factor are to be considered by the in determining the reasonableness of the fee award requested. Those factors are discussed, where appropriate and applicable, below. A. The Time and Labor Required of Counsel

-5-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 5 of 14

1 2 3

B.

The Novelty and Difficulty of the Questions Presented.

The novelty and difficulty of the legal issues and questions presented in this matter created additional time and expense in the litigation. The voluminous license and lease agreements also

4 5 6 7 8 9 spaces but yet they claimed that they did not have a store available to place Plaintiff. Defendants did 10 11 12 13 14 15 16 17 18 19 20 pursuing the case to jury verdict. 21 22 23 24 25 26 various complexity from sports to international business transactions to civil rights cases and injury 27 28 case. (See Affidavit of Sabinus A. Megwa, Exhibit B). This case required a sophisticated knowledge C. The Skill Required to Perform the Legal Service Properly discrimination in a leasing arrangement involving a merchant tenant and shopping mall landlord is rear and there are no cases on point or similar to this one. Therefore, the stakes were high for both parties and the out come has a far lasting effect beyond these parties. Therefore, the facts of the case made it novel and required extraordinary care in developing the legal theories and strategy of not keep records of other minorities that they denied temporary license or simply forced out of the mall as was the case of plaintiff. Defendants maintained that they did not maintain a list of minority tenants, however, they were quick to produce one in their motion to dismiss but after the failed on their attempt to dismiss the case, they then claimed they do not maintain such a list. The caused counsel to spend more time reviewing each exhibit disclosed or produced in this case. In this case, conventional issues of race and national origin discrimination were complicated by the facts of the case, the leasing issues involved and the sophisticated nature of Defendant's discriminatory practices. For instance, Defendants claimed that they did not have an inventory list of all vacant store

Hopefully, the skill necessary to properly perform the legal services in this case was apparent to the court with respect to the motion to dismiss and oppositions and the trial of the case. The undersigned counsel has a total of twenty four (24) years experience as a lawyer handling cases of

-6-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 6 of 14

1 2 3

and understanding of federal civil rights law as it relates to commercial transactions such as leasing contract, under 42 U.S.C. §1981 and §1982, and the federal law regarding the remedies to which Plaintiff was entitled.

4 5 6 7 8 9 numerous Plaintiffs in injury and civil rights and discrimination cases. The undersigned counsel has 10 11 12 13 14 15 16 17 18 19 20 leading to the trial and during the trial of this case posed serious hardship on the undersigned counsel. 21 22 23 24 25 26 from the cases undersigned was precluded from taking. 27 28 This matter was taken on contingent fee basis and therefore but for certain limited number of clients, very little other fees were being generated several weeks leading to the trial, during the trial and several weeks after trial. Given the spent on this case and all the challenges it posed, $226,162.50 for three and one half years is clearly less than what undersigned could have generated in other employ civil rights cases due to the commitment in this case. For three and one half years, Plaintiff has not been paid in this case and has lost the opportunity of being retained on hourly rate on some cases or being retained on other cases that would have resolved more quickly than this case. The preclusion of other employment by counsel because of the acceptance of this case and in particular several weeks also represented corporate Defendant in a discrimination and employment cases. Because of ongoing services on this matter, Plaintiff's counsel was unable to accept other legal assignments in Plaintiff's employment or discrimination cases. Plaintiff's counsel was also unable to attend critical matters pertaining to one of his professional athlete client and declines representation of certain individuals in D. the Action. Sabinus A. Megwa is a one attorney law office with one full time and one part-time secretaries. Mr. Megwa represents several professional athletes, a couple of companies, and The Preclusion of Other Employment by Counsel Because of the Acceptance of

-7-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 7 of 14

1 2 3

E.

The Customary Fee Charged in Matters of the Type Involved.

This case was taken on a contingent fee basis of forty (40%) of the recovery or $250.00 per hour which is below the current hourly rate of $300.00 per hour charged by Sabinus A. Megwa. The

4 5 6 7 8 9 probability of non-recovery. 10 11 12 13 14 15 16 17 18 19 20 the undersigned counsel is entitled to 40% of the judgment rendered in this case or attorney's fees 21 22 23 24 25 26 required moving this case along for a trial. Nevertheless due to circumstances beyond control, 27 28 awarded by the Court at $250.00 per hour, which ever is greater. G. Any Time Limitations Imposed by the Client or the Circumstances. at the conclusion of the case. Under signed counsel has incurred substantial risk of non-payment for more than three years as he has not received any attorney's fees during the pendency of this case. Counsel agreed to represent Plaintiff on a contingency fee basis as Plaintiff was not able to pay an hourly or fixed rate. The contingency fee agreement is attached hereto as Exhibit A and provides that F. Contingent. A contingent fee agreement is very risky. The fee arrangement between Plaintiff and the undersigned counsel is a contingent fee of forty (40%) or an hourly of $250.00, which ever is greater, Whether the Fee Contracted Between the Attorney and Client is Fixed or Court is very familiar with the going hourly rates charged by Plaintiff's counsel in most civil rights case in Arizona, particularly the Maricopa County. Many law firms and individual lawyer in the Maricopa County area will not even accept employment discrimination matters on a contingency basis due to the time and effort involved, the costs associated with prosecuting the case, and the high

Although there were no specific time limitations imposed, however Plaintiff's loss of business for five months, the management of Court's calendar and counsel's management of his case load

-8-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 8 of 14

1 2 3

particularly family emergencies that Plaintiff experienced caused some delay and in fact damages Plaintiff's case as he was unable to complete disclosure of all his economic damage evidence. H. The Amount of Money, or the Value of the Rights, Involved, and the Results

4 5 6 7 8 9 basis of his race is a major achievement for civil rights in this community. Therefore, this case was 10 11 12 13 14 15 16 17 18 19 20 of practicing law in Arizona, and representing clients in different states and countries and the success 21 22 23 24 25 26 /// 27 28 /// rate in favor of counsel's clients, academic experience and publication speaks for its self. and states, Plaintiff's counsel is a sole practitioner with one full time secretary and a part-time secretary. At the trial of this case, Defendants had three lawyers and a paralegal during every minute of the trial of this case. Nevertheless, Plaintiff prevailed at the trial. discrimination. The jury also ruled that these defendants were recklessly indifferent to Plaintiff's federally protected civil rights and punished them for it. I. The Experience, Reputation and Ability of Counsel. not all about money. Rather, it was about the vindication of a wrong, and a wonderful testament of the jury system to tell The Mills Corporation and Arizona Mills that they discriminated against Dr. Alozie on the basis of his race and national origin, and in fact sent a message to them in the form of punitive damages. The major success in this case is that the jury found Defendants' liable for Obtained. Although the jury only awarded Plaintiff nominal damages, however Plaintiff's business was closed for at least five months due to Defendants' conduct. The Defendants have consistently denied that they discriminated against plaintiff. To prevail on the issue of liability for discrimination on the

The Affidavit of Sabinus A. Megwa is attached hereto as Exhibit A. Hopefully the many years

-9-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 9 of 14

1 2 3

J.

The "Undesirability" of the Case.

Race and national origin cases are usually not taken by many Plaintiffs' lawyers, particularly dealing with an area of the law with very few litigation such as commercial discrimination. Plaintiff

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 needed to be litigated to help uphold the civil rights of Alozie and other minority merchant's in this 21 22 23 24 25 26 27 28 There was one other matter counsel handled for Plaintiff during the same time frame on probono. There were no other ongoing attorney-client relationship between the undersigned counsel and Plaintiff prior to this case. The undersigned counsel had taken a substantial risk with Plaintiff in this community, a multiplier of at least 1.5 is warranted. K. The Nature and Length of the Professional Relationship Between the Attorney and the Client. community for fee enhancements in civil rights cases); Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986)(multiplier of l.5 upheld where plaintiff was rejected by 10 attorneys before finding counsel). Based on the unique nature of Plaintiff Alozie's case, and the fact that such difficult case is 1996)(upholding district court's 2.0 multiplier to the lodestar figure based, in part, upon the undesirability of the case and the likelihood that no other attorney would have accepted the case); Fadhl v. City & County of San Francisco, 859 F.2d 649, 651 (9th Cir. 1988)(upholding 2.0 multiplier based on difficulty Fadhl encountered in retaining counsel and manifest need in Alozie did speak with several lawyers. He sought representation from a number of attorneys in the community, who were either unwilling or unable to take his case. There are not many court cases dealing with race and national origin discrimination regarding shopping malls and their tenants and as such, Alozie's case may not be desirable to many Plaintiff's lawyers for a contingency fee agreement. See Guam Society of Obstetricians and Gynecologists v. Ada, 100 F.3d 691, 697 (9th Cir.

-10-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 10 of 14

1 2 3

case for more than three years therefore justifying payment of an award of the entire fee claimed by the undersigned in this case. L. Awards in Similar Actions

4 5 6 7 8 9 The other relevant factors that the court should consider is the fact that that Plaintiff should 10 11 12 13 14 15 16 17 18 19 20 prevailing rate in the community multiplied by the number of hours reasonably expended in the 21 22 23 24 25 26 27 28 litigation. See Hensely v. Echerart, 461 U.S. 424, 103 S. Ct. 1933 (1983). See White v. City of Richmond, 559 F. Supp. 127 (N.D. Cal. 1981), Aff'd 713 F.2d 458 (9th Cir 1983). (See also Section III(J) above and cases cited therein) Ninth Circuit has adopted the Supreme Court's strong presumption that the lodestar methodology (number of hours multiplied by the hourly rate) represents the "reasonable fee". Corder v. Gates, 947 F.2d 347 (9th Cir. 1991); See also Pennsylvania v. IV. Lodestar and Multiplier In most civil rights cases, the method of calculating award of attorney's fees is not necessarily the rate contracted for, which in this case is would have been $250.00 per hour or a percentage of the total recovery, which ever is greater, but rather a lodestar. The lodestar would be have been warded compensatory and economic damages had the jury rendered their verdict consistent with the evidence at trial. It is difficult to believe that a victim of discrimination did not suffer any compensatory damage. M. Any Other Matters Deemed Appropriate Under the Circumstances. Although there are highly not many similar cases. However in most civil rights cases, the prevailing plaintiffs are entitled to their reasonable attorney's fees.

-11-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 11 of 14

1 2 3

Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Marsh v. Digital Equip. Corp. 699 F.Supp. 1411 (D. Ariz. 1988) (lodestar figure presumed to be reasonable fee). Thus, in determining the reasonableness of attorney fees calculated using the lodestar

4 5 6 7 8 9 necessary. Plaintiff's counsel litigated this matter with the assistant of co-counsel or ey time spent in 10 11 12 13 14 15 16 17 18 19 20 case. Application of the lodestar methodology and the twelve-factor analysis reveal that Plaintiff 21 22 23 24 25 26 attorney's fee award. As evidenced in Exhibit D, Plaintiff's claim for an award of non-taxable costs 27 28 of copying charges, facsimile charges, computer research, postage, etc., are generally recoverable Alozie's requests for attorney's fees is reasonable and should be adjusted upward of 1.5 multiplier resulting in attorney's fees of $226,162.50. V. Non Taxable Expenses. As a prevailing party, Plaintiff is entitled to his out-of-pocket litigation expenses as part of the attorney's fees by adjusting the fees upward or downward. In this case, an upward adjustment of the attorney's fees by using a multiplier of 2.0 or 1.5 is appropriate. In Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975) the Court listed twelve factors which should be considered in adjusting attorney's fees awards in employment discrimination cases. Similar factor should also be used in this this case by or the hourly rate, then justice and fairness required that the Court order defendants' counsel to produce all their billing records for the time expended and fees charged in the handling of this matter since April 15, 2002 to present. In most civil rights cases such as the one at bar, the court is allowed to award reasonable methodology, the Court has discretion to scrutinize the reasonableness of both the hours expended and the hourly fee claimed. Id.. Further, and the lodestar fee, if warranted, may be adjusted upward or downward. Id. The time Plaintiff's counsel expended in this case of 603.1 hours are in fact reasonable and

-12-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 12 of 14

1 2 3

under 42 U.S.C. §1988 when it is the custom of attorneys in the local community to bill them separately. See Snell v. Reno Hilton Resort, 930 F. Supp. 1428, (D.Nev. 1996)(court may allow as costs reasonable photocopying, telephone, facsimile, costs of computer research, and other charges

4 5 6 7 8 9 VI. CONCLUSION 10 11 12 13 14 15 16 17 18 19 20 Court permit him to supplement this application for fees and expenses to bring the amounts current as 21 22 23 24 25 26 Based on the foregoing, Plaintiff Nicholas Alozie respectfully requests that this Court enter an 27 28 order allowing: of the date of any such reply, argument or hearing. In the event Defendants contest the reasonable ness of the hours or the hourly rate, Plaintiff may request an evidentiary hearing as allowed by the Local Rules and the discovery of comparable information on the amount of hours spent and the hourly rate of legal counsel for Defendant in this litigation. Memorandum. Plaintiff additionally requests an award of $18,752.99 (Exhibit D) for non-taxable costs and expenses. In the event additional work is required in filing a reply to a response to this Memorandum or some request for evidentiary hearing regarding this matter, then Plaintiff hereby requests that the For the reasons stated above, Plaintiff requests that the court order fees in the lodester amount of $150,775.00,(Exhibit C) enhanced by a factor of at least 1.5, resulting in a total fee award of $226,162.50, which is fair and reasonable compensation for the legal services provided in this case for a period of three and on half years from the date Plaintiff retained counsel to the date of this normally charged to a fee-paying client); Plaintiff is entitled to non-taxable costs including expert fees and costs of video recording of depositions. The total amount of said related non-taxable costs is $18,752.99.

-13-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 13 of 14

1 2 3

1.

Compensation for professional services rendered by Attorney Sabinus A. Megwa in

the sum of $150,775 x1.5 multiplier or a total sum of $226,162.50 2. Reimbursement of $18,752.99 for actual and necessary expenses; and Such other and further review as this Court deems just and proper under the

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Original of the foregoing document Electronically transmitted to the Clerk of Court's Office using CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants on this 31st_day of October 2005, to: Shelton L. Freeman, Esq. Michael A, Cordier, Esq. Lisa Ann Smith, Esq. DeConcini, McDonald, Yetwin & Lacy, P.C. 7310 North Sixteenth Street, Suite 330 Phoenix, AZ 85020 Attorneys for Defendants /s/ Sabinus A. Megwa THE MEGWA LAW OFFICE BY_/s/ SABINUS A. MEGWA 6811 South Central Ave. Phoenix, Arizona 85042 Attorney for Plaintiff 3. circumstances. RESPECFULLY SUBMITTED this 31st day of October 2005.

-14-

Case 2:02-cv-02639-SRB

Document 156-2

Filed 10/31/2005

Page 14 of 14