-CWH Easley et al v. U.S. Home Corporation et al, No. 2:2011cv00357 - Document 93 (D. Nev. 2012)
Court Description: ORDER Granting 40 Motion for Attorney Fees. Plaintiff Minter is to pay Defendant Lennar the total sum of $3,060.00. Plaintiff Minter is further ordered to make full payment to Defendant by September 10, 2012. Signed by Magistrate Judge Carl W. Hoffman on 8/6/2012. (Copies have been distributed pursuant to the NEF - SLR)
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-CWH Easley et al v. U.S. Home Corporation et al Doc. 93 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 BETRAM EASLEY, et al., 8 9 10 Plaintiffs, vs. U.S. HOME CORP. D/B/A LENNAR., et al., 11 Defendants. 12 13 ) ) ) ) ) ) ) ) ) ) ) 2:11-cv-00357-ECR-CWH ORDER This matter is before the Court on Defendant Lennar Sales Corporation’s (“Lennar”) 14 Motion for Attorneys’ Fees (#40), filed December 15, 2011. The Court also considered Plaintiff 15 Troy Minter’s (“Minter”) Response (#50), filed January 11, 2012, and Defendant’s Reply (#60), 16 filed January 23, 2012. 17 18 BACKGROUND Plaintiffs Bertram Easley and Troy Minter initiated the instant action on November 19, 19 2010 against U.S. Home Corporation, doing business as Lennar, Lennar Corporation, Lennar 20 Sales Corp. and Greystone Nevada, LLC. Plaintiffs worked at Lennar as New Home Consultants 21 for the Walnut Grove Development. Plaintiffs, both African-American males, allege that they 22 were terminated based upon race. On October 6, 2011, Defendant filed a Motion to Compel 23 seeking Plaintiff Minter’s federal income tax returns from 2007 to the present (#30). At a 24 December 1, 2011 hearing, the Court granted the Motion to Compel and ordered Plaintiff Minter 25 to produce the requested records within ten days subject to the Stipulated Protective Order (#24). 26 The Court also ordered Defendant to submit an Application for Costs and Fees associated with 27 making the Motion to Compel within fourteen days (#39). Per the Court’s order, Defendant filed 28 an Application on December 15, 2011 in which Defense Counsel, Kevin D. Smith (“Mr. Smith”), requests $4,080 in fees based on an hourly rate of $340 and twelve hours of work (#40). Plaintiff Dockets.Justia.com 1 Minter asserts that an award of fees is unwarranted because the failure to respond was 2 substantially justified and an award of fees would be unjust. 3 DISCUSSION 4 1. Sanctions Pursuant to Rule 37 5 Federal Rule of Civil Procedure 37(a)(5)(A) states, “[T]he court must, after giving an 6 opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or 7 attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in 8 making the motion, including attorney’s fees.” An award of expenses is not appropriate if: (1) 9 the movant filed the motion before attempting in good faith to obtain the disclosure or discovery 10 without court action, (2) the opposing party’s non-disclosure, response, or objection was 11 substantially justified, or (3) other circumstances make an award of expenses unjust. Fed. R. 12 Civ. P. 37(a)(5)(A)(i-iii). The burden is on the losing party to affirmatively demonstrate that its 13 discovery conduct was substantially justified. See Adv. Comm. Notes to 1970 Amendment to 14 former Fed. R. Civ. P. 37(a)(4). Discovery conduct is “substantially justified if it is a response to 15 a ‘genuine dispute or if reasonable people could differ as to the appropriateness of the contested 16 action.’” Devaney v. Continental American Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) 17 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). 18 Plaintiff Minter concedes that two emails were submitted requesting production of the tax 19 returns, but argues that an additional request should have been made after the protective order 20 was entered. The Court is not convinced that an additional request was necessary and finds that 21 Defendant made a good faith attempt to obtain the tax returns before filing the motion to compel. 22 Similarly, Plaintiff Minter argues that the non-disclosure was substantially justified due to his 23 privacy concerns regarding the highly personal information contained in the tax returns. 24 Additionally, Plaintiff Minter asserts that the production of the W-2 and 1099-G documents 25 containing information about his replacement information was sufficient to comply with the 26 request. Defendant contends that production of the full tax returns was necessary given the 27 employment-related damages sought and particularly after Plaintiff Minter’s deposition 28 testimony regarding his employment history. The Court does not find the articulated privacy -2- 1 rationale to constitute a substantial justification, especially given the protective order and 2 Plaintiff Minter’s knowledge of the outstanding request for tax returns. 3 Likewise, Plaintiff Minter contends that an award of attorney’s fees would be unjust 4 because the non-disclosure was based on privacy concerns and Defense counsel did not make 5 repeated requests to obtain the tax returns. Defendant argues that the award of fees is not unjust 6 because Plaintiff Minter is represented by counsel who would not have properly responded to 7 their request for production without court intervention. The Court finds that Defendant’s motion 8 to compel was necessary to prompt Plaintiff Minter to respond to the request for tax returns. 9 Accordingly, Plaintiff Minter has not met his burden to demonstrate his conduct was 10 substantially justified or an award of fees would be unjust and the Court finds Defendant entitled 11 to attorney’s fees pursuant to Rule 37(a)(5)(A). 12 2. Reasonableness of the Fee Request 13 The Ninth Circuit affords trial courts broad discretion in determining the reasonableness 14 of fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). Courts typically follow a 15 two-step process. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court 16 must calculate the lodestar amount “by taking the number of hours reasonably expended on the 17 litigation and multiplying it by a reasonable hourly rate.” Id. Second, the Court “may adjust the 18 lodestar upward or downward using a ‘multiplier’ based on factors not subsumed in the initial 19 calculation.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). 20 Some of the relevant factors are: (1) the preclusion of other employment by the attorney due to 21 acceptance of the case, (2) time limitations imposed by the client or the circumstances, (3) the 22 amount involved and results obtained, (4) the undesirability of the case,1 (5) the nature and length 23 of the professional relationship with the client, and (6) awards in similar cases. Id. at n. 2 (citing 24 Hensley v. Eckerhart, 461 U.S. 424 (1983)); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 25 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). In most cases, the lodestar figure is 26 1 27 28 This factor has been called into question by the Supreme Court’s ruling in City of Burlington v. Dague, 505 U.S. 557, 561-564 (1992). See also Davis v. City & Cty. of San Francisco, 976 F.2d 1536, 1546 n.4 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993) (suggesting Dague casts doubt on the relevance of “undesirability” to the fee calculation). -3- 1 a presumptively reasonable fee award. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 2 978 (9th Cir. 2008). 3 The Supreme Court has held that reasonable attorney fees must “be calculated according 4 to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-96 5 n.11 (1984). The relevant community consists of the forum in which the case is pending. 6 Camacho, 523 F.3d at 978. The court may consider rates outside the forum if local counsel was 7 unavailable because they lacked the degree of experience, expertise, or specialization required to 8 properly handle the case. Id. (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). 9 Additionally, the court must consider the market rate in effect within two years of the work 10 performed. Bell v. Clackamas County, 341 F.3d 858, 869 (9th Cir. 2003). Determining the 11 appropriate market rate is inherently difficult for a number of reasons. Traditional supply and 12 demand principles do not ordinarily apply to prevailing market rates for lawyers. Id. The hourly 13 rate of lawyers in private practice varies widely. Id. The type of services provided by lawyers, as 14 well as their experience, skill, and reputation, varies extensively. Id. Finally, the fee is usually 15 discussed with the client and may be negotiated. Id. 16 Consequently, the fee applicant has the burden of producing satisfactory evidence that 17 “the requested rates are in line with those prevailing in the community for similar services by 18 lawyers of reasonably comparable skill, experience, and reputation.” Id. Such evidence may 19 include affidavits of the fee applicant’s attorneys, affidavits of other attorneys regarding 20 prevailing fees in the community, and rate determinations in other cases. Camacho, 523 F.3d at 21 980 (citing United Steel Workers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 22 1990)). Where documentation of hours is inadequate, the district court may reduce the award 23 accordingly. Hensley, 461 U.S. at 433. The court may exclude hours related to overstaffing, 24 duplication, excessiveness, and otherwise unnecessary to the issue. Id. 25 Plaintiff Minter objects to the hourly fee as excessive in this jurisdiction, but does not 26 provide any evidence of a more appropriate rate. Defendant argues that counsel’s hourly rate is 27 well within the District of Nevada’s market rate for the past two years. Defense Counsel, Mr. 28 Smith, cites to his ten years of experience as a labor and employment law attorney and the rate -4- 1 determinations of similar attorneys in two recent cases in this District including: Incorp. 2 Services, Inc. v. Nevada Corporate Services, No. 2:09-cv-01300-RCJ-CWH (#60) and Ruiz v. 3 All-American & Assocs., No. 2:10-cv-01312-GMN-GWF (#66). In Ruiz, the Court found that 4 plaintiffs offered sufficient evidence to find the hourly rate of $210 was reasonable. No. 2:10-cv- 5 01312-GMN-GWF (#66). Mr. Smith’s hourly rate of $340 is significantly higher than $210. On 6 the other hand, in Incorp, the Court drew on its own experience in considering the prevailing 7 market rate to find an hourly rate of $400 reasonable for an attorney with eleven years of 8 experience and $350 reasonable for an attorney with eight years of experience. No. 2:09-cv- 9 01300-RCJ-CWH (#60). Accordingly, the Court finds Mr. Smith’s hourly rate of $340 to be 10 reasonable in the Las Vegas legal market given his ten years of specialized experience in labor 11 and employment law. 12 Plaintiff Minter also objects to the hour descriptions provided by Defendant because they 13 are not itemized further into tasks, such as legal research and review of documents. The hours 14 are itemized as: 6.5 hours for preparation of the motion to compel, 0.5 hours for review of 15 plaintiff’s opposition, 3.5 hours for preparation of the reply, and 1.5 hours for preparation and 16 attendance of the December 1, 2011 hearing on the motion to compel. Defendant alleges that the 17 hours are itemized sufficiently to put Plaintiff on notice of the work he performed. Unlike in 18 Ruiz, Plaintiff Minter submitted an opposition to Defendant’s motion for fees and therefore does 19 not consent to the hours alleged. No. 2:10-cv-01312-GMN-GWF (#66). Additionally, the Court 20 considers the fact that the motion to compel was limited to a singular issue, namely, the 21 disclosure of Plaintiff Minter’s tax returns. This is not a difficult issue requiring extensive case 22 law research and analysis in either the Motion to Compel (#30) or the Reply (#35) and resulted in 23 a short hearing lasting about thirty minutes (#39). Additionally, as an experienced attorney, Mr. 24 Smith is familiar with the skill, time, and labor required to produce a motion to compel. Finally, 25 the Court agrees that the hours should have been itemized in more detail to provide an adequate 26 basis for the reasonableness determination. Considering the totality of the circumstances, the 27 Court finds that 5 hours is a reasonable amount of time to prepare the Motion to Compel, 2.5 28 hours is a reasonable amount of time to prepare the Reply, and 1 hour is a reasonable amount of -5- 1 time to prepare and attend the hearing. Therefore, the novelty and difficulty of the issue, 2 experience of the attorney, and documentation of the hours justify a reduction in hours to 9 hours 3 total. Accordingly, 4 IT IS HEREBY ORDERED that Plaintiff Minter to pay Defendant Lennar the total sum 5 of $3,060.00. Plaintiff Minter is further ordered to make full payment to Defendant by 6 September 10, 2012. 7 DATED this 6th day of August, 2012. 8 9 10 C.W. Hoffman, Jr. United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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