Clark v. Homeservices Lending LLC et al, No. 3:2011cv01451 - Document 40 (S.D. Cal. 2012)
Court Description: ORDER granting 33 Motion for Attorney Fees and Costs and AWARDS Plaintiff $28,976.83 in attorneys fees and $690.25 in costs. Signed by Judge M. James Lorenz on 6/25/2012. (mtb)
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Clark v. Homeservices Lending LLC et al Doc. 40 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 SHERI CLARK, ) Case No. 11-cv-1451-L(MDD) ) Plaintiff, ) ORDER GRANTING IN PART AND ) DENYING IN PART MOTION FOR v. ) ATTORNEY FEES AND COSTS ) [DOC. 33] HOMESERVICES LENDING LLC, et ) al., ) ) Defendants. ) ) On June 30, 2011, Plaintiff Sheri Clark commenced this action against Defendants 20 Homeservices Lending LLC d/b/a Homeservices and Doherty Employment Group, Inc. to 21 recover unpaid wages under federal and state law. On December 2, 2011, Plaintiff accepted 22 Defendants’ Rule 68 Offer of Judgment in the amount of $37,102.00, which also allows Plaintiff 23 to seek reasonable attorneys’ fees and costs. Plaintiff now moves for an award of attorneys’ fees 24 and costs in the amount $52,550.50. This is one of three requests for attorneys’ fees among a 25 group of seven related cases against Defendants to recover unpaid wages. Defendants oppose. 26 The Court found this motion suitable for determination on the papers submitted and 27 without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 34.) For the following reasons, the Court 28 GRANTS IN PART and DENIES IN PART Plaintiff’s motion for attorneys’ fees and costs. 11cv1451 Dockets.Justia.com 1 I. ANALYSIS1 2 Plaintiffs are entitled to attorneys’ fees under the Fair Labor Standards Act (“FLSA”). 29 3 U.S.C. § 216(b); see also Newhouse v. Robert’s Ilima Tours, Inc., 708 F.2d 436, 441 (9th Cir. 4 1983) (“The FLSA grants prevailing plaintiffs a reasonable attorney’s fee.”). Courts in the Ninth 5 Circuit calculate an award of attorneys’ fees using the lodestar method, whereby a court 6 multiplies “the number of hours the prevailing party reasonably expended on the litigation by a 7 reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) 8 (internal quotation marks omitted). The fee applicant bears the burden of demonstrating that the 9 number of hours spent were “reasonably expended” and that counsel made “a good faith effort to 10 exclude from [the] fee request hours that are excessive, redundant, or otherwise unnecessary.” 11 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). It is likewise the fee applicant’s burden to 12 “submit evidence supporting the hours worked and rates claimed . . . . Where the documentation 13 of hours is inadequate, the district court may reduce the award accordingly.” Id. at 433. “The 14 party opposing the fee application has a burden of rebuttal that requires submission of evidence 15 to the district court challenging the accuracy and reasonableness of the hours charged or the facts 16 asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 17 1392, 1397-98 (9th Cir. 1992) (citing Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984); Toussaint 18 v. McCarthy, 826 F.2d 901, 904 (9th Cir. 1987)). 19 “Although in most cases, the lodestar figure is presumptively a reasonable fee award, the 20 district court may, if circumstances warrant, adjust the lodestar to account for other factors 21 which are not subsumed within it.” Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 22 (9th Cir. 2001). Those factors—also known as the Kerr factors—include: 23 // 24 1 The collection of related cases against Defendants also includes: Buchanan v. Homeservices Lending LLC, No. 11-cv-922-L-MDD; Shaw v. Homeservices Lending LLC, No. 26 11-cv-924-L-MDD; Dawson v. Homeservices LLC, No. 11-cv-1037-L-MDD; McGraw v. Homeservices Lending LLC, No. 11-cv-1138-L-MDD; Butler v. Homeservices Lending LLC, 27 No. 11-cv-2313-L-MDD; and Olmsted v. Homeservices Lending LLC, No. 12-cv-745-L-MDD. Dawson and McGraw both have nearly identical motions for attorneys’ fees and costs also 28 pending. 25 11cv1451 2 1 2 3 4 5 6 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (quoting McGrath v. Cnty. of 7 Nevada, 67 F.3d 248, 252 (9th Cir. 1995)); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 8 67, 70 (9th Cir. 1995) . 9 The parties do not dispute that Plaintiff is entitled to seek reasonable attorneys’ fees. Nor 10 do they dispute applying the lodestar method. They do, however, disagree whether the number 11 of hours were reasonably expended. Plaintiff argues that her request is reasonable because her 12 counsel expended a reasonable and necessary amount of time litigating against Defendants’ 13 vigorous defense. (Pl.’s Mot. 10:13–22.) Defendants respond that the hours sought are 14 unreasonable because they are excessive and duplicative. (Defs.’ Opp’n 5:18–7:6.) But they do 15 not challenge the costs sought. 16 17 A. 18 To support their contention that the hours billed are excessive and duplicative, Recoverable Hours 19 Defendants present several charts. The first, included in Defendants’ opposition, presents work 20 that was purportedly duplicative. The second and third, both attached as exhibits, summarize 21 “additional items . . . which are completely erroneous since they could have been done by a legal 22 assistant at a much lower rate,” and “what Defendants believe would be [a] reasonable attorneys’ 23 fees amount.” (Defs.’ Notice of Lodgment, Exs. 1 & 2 [Doc. 37-8].) Plaintiff responds that 24 Defendants’ contentions are meritless, and the charts are irrelevant and lack foundational 25 support. 26 // 27 // 28 // 11cv1451 3 1 Plaintiff is correct that the charts in and of themselves do not provide any evidentiary 2 support for Defendants. In particular, the second and third charts fail to meet Defendants’ 3 burden of rebuttal. See Gates, 987 F.2d at 1397-98. Those two charts do not provide any 4 substance to challenge Plaintiff’s request, but rather merely in conclusory fashion state 5 Defendants’ belief that some items could have been billed at a lower rate and their perception of 6 reasonable attorneys’ fees should be. That is wholly insufficient.2 See id. 7 However, Defendants’ chart summarizing duplicative billing is different. Though the 8 chart itself is not evidence, it refers to documents already put forth as evidence, namely 9 Plaintiff’s billing records. Additionally, this chart also references court documents filed by 10 Plaintiff in not only this case, but also in the two related cases with pending motions for 11 attorneys’ fees. Defendants also include these documents as exhibits to its opposition.3 (See 12 Kaufman Decl. Exs. 1–27.) After comparing Defendants’ chart of duplicative work with the 13 billing records and other evidence submitted, the Court finds that the chart is accurate. 14 Looking at these documents, the Court agrees with Defendants that the filings identified 15 involved duplicative work. For example, after closer inspection, it is clear that the complaints in 16 this case, Dawson, and McGraw are virtually identical. There are minor tweaks to names and 17 some details, but the factual and legal allegations are identical. Moreover, even the paragraph 18 numbering tracks 1-to-1 between these three complaints. Plaintiff’s motion to strike and motion 19 to quash are also nearly identical to the same motions filed in Dawson and McGraw. Lending 20 further credence to Defendants’ contention is that almost all of these items listed as duplicative 21 span the exact same dates in their respective billing records. For example, attendance of a 22 telephonic ENE is listed in all three cases as having occurred on 8/25/11, drafting discovery in 23 all three occurred from 9/12/11 to 11/10/11, and review of the protective order in all three 24 2 Defendants also challenge work billed for alleged improper subpoenas to Plaintiff’s current employer. (Defs.’ Opp’n 11:21–12:24.) It is unclear which exact billing values 26 Defendants are challenging. Given that it is not the Court’s job to sift through detailed and voluminous billing records, the Court rejects this challenge. See Gates, 987 F.2d at 1397-98. 27 3 Additionally, the Court takes judicial notice of all documents filed in the related cases 28 identified above. 25 11cv1451 4 1 occurred on 9/13/11 and 10/4/11. 2 Accordingly, the Court reduces all of the duplicative entries in Plaintiff’s billing records 3 by two-thirds, with the exception of the work done drafting the ENE briefs. The Court finds that 4 such reduction is reasonable and warranted to account for the duplicative work divided among 5 two or three cases, and that Plaintiff failed to meet her burden showing that a good-faith effort 6 was made to exclude these redundant hours. See Hensley, 461 U.S. at 434. The total reduction 7 of attorneys’ fees in this case as a result of duplicative billing will thus amount to $5,596.67.4 8 9 10 B. Lodestar Multiplier Under the lodestar approach, “[t]he court may . . . enhance the lodestar with a 11 ‘multiplier’, if necessary, to arrive at a reasonable fee in light of all the circumstances of the 12 case.” Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 298 (N.D. Cal. 1995). The court 13 may “adjust[] the lodestar figure on the basis of [the] Kerr factors not already subsumed in the 14 initial calculation.”5 McGrath, 67 F.3d at 252. “Application of a multiplier is completely within 15 the Court’s discretion.” Hess v. Ramona Unified Sch. Dist., No. 07-CV-49 W(CAB), 2008 WL 16 5381243, at *8 (S.D. Cal. Dec. 19, 2008) (Whelan, J.). 17 Plaintiff argues that she should be granted a 1.5 multiplier because of the contingent 18 nature of the case, considerable financial risk to Plaintiff’s counsel, and the time and labor 19 required. (Pl.’s Mot. 16:19–19:11.) Plaintiff particularly emphasizes the first argument. 20 However, “[f]ederal law, unlike California law, does not allow for contingency multipliers.” 21 22 4 [$2,500.00 (Drafting Complaint) + $965.00 (Drafting Motion to Strike) + $175.00 23 (Attend Telephonic ENE) + $4,200.00 (Drafting Discovery) + $205.00 (Review Protective Order) + $350.00 (Drafting Motion to Quash)][2/3] = $8,395.00 x 2/3 = $5,596.67. 24 5 Courts have also applied a similar six-factor analysis to decide whether a percentage 25 increase of attorneys’ fees is fair and reasonable. See, e.g., Schiller v. David’s Bridal, Inc., No. 10-cv-616, 2012 WL 2117001, at *16 (E.D. Cal. June 11, 2012). These factors include: (1) the 26 results achieved; (2) the risk of litigation; (3) the skill required; (4) the quality of work performed; (5) the contingent nature of the fee and the financial burden; and (6) the awards 27 made in similar cases. Id. These factors clearly and substantially overlap with the Kerr factors. However, the parties do not address which list of factors is applicable here. For the sake of 28 completion, the Court will also take into account appeals to any of these six factors. 11cv1451 5 1 Murillo v. Pac. Gas & Elec. Co., No. CIV 2:08-1974, 2010 WL 2889728, at *10 (E.D. Cal. July 2 21, 2010). Given that Plaintiff seeks attorneys’ fees under the FLSA, a federal statute, applying 3 a contingency multiplier is not appropriate. (See Pl.’s Mot. 2:22–3:1.) Similarly, the financial 4 risk of non-payment that Plaintiff contemplates is a result of the contingent nature of the case. 5 Thus, applying a multiplier for that reason is also not appropriate. To justify the multiplier on 6 the basis of time and labor required, Plaintiff merely states that it spent approximately 105.29 7 hours litigating this case, and achieved “absolute victory” against a “huge company” and “one of 8 the biggest and most respected law firms in the United States.” (Pl.’s Mot. 19:3–9.) That 9 explanation is wholly insufficient. Accordingly, the Court finds that applying a multiplier is not 10 necessary to arrive at a reasonable fee. See Van Vranken, 901 F. Supp. at 298. 11 12 II. CONCLUSION & ORDER 13 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 14 Plaintiff’s motion for attorneys’ fees and costs, and AWARDS Plaintiff $28,976.83 in attorneys’ 15 fees and $690.25 in costs.6 (Doc. 33.) 16 IT IS SO ORDERED. 17 18 DATED: June 25, 2012 19 20 21 COPY TO: M. James Lorenz United States District Court Judge HON. MITCHELL D. DEMBIN 22 UNITED STATES MAGISTRATE JUDGE 23 ALL PARTIES/COUNSEL 24 25 26 6 Plaintiff seeks $52,550.50 in attorneys’ fees and costs. That total accounts for 27 $34,573.50 times the 1.5 lodestar multiplier plus $690.25 in costs. The Court’s attorneys’ fees calculation removes the multiplier and subtracts $5,596.67 for the reasons discussed above. That 28 total amounts to $28,976.83 in attorneys’ fees. 11cv1451 6
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