Voggenthaler, et al., v. Maryland Square, LLC, et al.,, No. 2:2008cv01618 - Document 486 (D. Nev. 2010)
Court Description: ORDER Granting 400 Motion for Attorney Fees. Signed by Judge Robert C. Jones on 10/19/2010. (Copies have been distributed pursuant to the NEF - DXS)
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Voggenthaler, et al., v. Maryland Square, LLC, et al., Doc. 486 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 15 16 17 18 19 PETER J. VOGGENTHALER, et al., ) ) Plaintiffs, ) ) v. ) ) MARYLAND SQUARE, LLC, et al., ) ) Defendants. ) ___________________________________ ) ) MARYLAND SQUARE, LLC, et al., ) ) Third Party Plaintiffs, ) ) v. ) ) GENERAL GROWTH MANAGEMENT, INC.,) a foreign corporation, et al. ) ) Third Party Defendants. ) ) ___________________________________ ) 2:08-CV-1618-RCJ-GWF ORDER 20 Currently before the Court is Plaintiffs’ Motion for Attorney’s Fees and Related Costs 21 (#400) filed on August 5, 2010. Defendants filed an Opposition to Plaintiffs’ Motion for 22 Attorney’s Fees (#414) and an Objection to Plaintiffs’ Bill of Costs (#416) on August 19, 2010. 23 Plaintiffs filed a Reply (#436) on September 1, 2010, and Defendants filed a Surreply (#454) 24 on September 14, 2010. 25 26 The Court heard oral argument on the motion on September 16, 2010. BACKGROUND 27 On July 22, 2010, the Court entered an Order (#390) granting summary judgment on 28 the Resource Conservation and Recovery Act (“RCRA”) claim brought by Plaintiffs pursuant to 42 U.S.C. § 6972(a)(1)(B). Following that Order, Plaintiffs filed the current motion for Dockets.Justia.com 1 attorney’s fees and related costs pursuant to 42 U.S.C. § 6972(e). Defendants Maryland 2 Square Shopping Center, LLC, the Herman Kishner Trust dba Maryland Square Shopping 3 Center and Irwin Kishner, Jerry Engel and Bank of America, as Trustees for the Herman 4 Kishner Trust (collectively referred to herein as the “Kishner Defendants”) filed an opposition 5 to the motion on the grounds that the fees and costs were unreasonable. (Opp.(#414)). 6 Defendant Maryland Square LLC (“MSLLC”) joined the Kishner Defendants’ opposition. 7 (Joinder (#417)). DISCUSSION 8 9 I. Attorneys’ Fees 10 “Generally, litigants in the United States pay their own attorneys’ fees, regardless of the 11 outcome of the proceedings.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 12 2008)(quoting Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003)). However, “[i]n order 13 to encourage private enforcement of the law . . . Congress has legislated that in certain cases 14 prevailing parties may recover their attorneys’ fees from the opposing side.” Id. “When a 15 statute provides for such fees, it is termed a ‘fee shifting’ statute.” Id. The RCRA is one such 16 statute, providing that the court, “in issuing a final order in any action brought pursuant to 17 [section 6972] . . . may award costs of litigation (including reasonable attorney and expert 18 witness fees) to the prevailing party, whenever the court determines such an award is 19 appropriate.” 42 U.S.C. § 6972(e). The statutory language of this provision makes an award 20 of fees discretionary. Browder v. City of Moab, 427 F.3d 717, 720 (10th Cir. 2005)(stating “it 21 is clear from the permissive language used by Congress in enacting this statute (e.g. ‘may’) 22 that an award of attorney’s fees to the prevailing party is discretionary”). 23 “The district court has a great deal of discretion in determining the reasonableness of 24 the fee and, as a general rule, [an appellate court] will defer to its determination, including its 25 decision regarding reasonableness of the hours claimed by the prevailing party.” Prison Legal 26 News v. Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010)(quoting Gates v. Deukmejian, 27 987 F.2d 1392, 1398 (9th Cir. 1993)). “This is appropriate in view of the district court’s 28 superior understanding of the litigation and the desirability of avoiding frequent appellate 2 1 review of what essentially are factual matters.” Prison Legal News, 608 F.3d at 435 (quoting 2 Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). 3 When calculating the award for attorney’s fees, the court uses the “lodestar” method. 4 Camacho, 523 F.3d at 978. “The ‘lodestar’ is calculated by multiplying the number of hours 5 the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Id. 6 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). “Although 7 in most cases, the lodestar figure is presumptively a reasonable fee award, the district court 8 may, if circumstances warrant, adjust the lodestar to account for other factors which are not 9 subsumed within it.” Id. 10 In order to determine the reasonableness of the fees requested, the Court must 11 determine the appropriate billing rate for the Plaintiffs’ attorneys as well as the number of 12 hours those attorneys reasonably expended on the action. See Blum v. Stenson, 465 U.S. 13 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). A party seeking attorney fees bears the 14 ultimate burden of showing that its requested hourly rates and the hours it claims are 15 reasonable. Interfaith Cmty. Org. v. Honeywell Intern., Inc., 426 F.3d 694, 703 n.5 (3d Cir. 16 2005). 17 In this matter, the Court finds that an award of reasonable attorney’s fees is merited. 18 Plaintiffs are the prevailing party in this litigation based on the Court’s Order (#390) granting 19 summary judgment in Plaintiffs’ favor on their sole RCRA cause of action. However, as will 20 be discussed in the following, the Court rejects the amount sought by Plaintiffs on the grounds 21 that the hourly rate requested is unreasonable. In addition, the Court limits the award to hours 22 incurred from the date the Complaint was filed in this action and to litigation attributable to the 23 Kishner Defendants and MSLLC. 24 A. Reasonable Hourly Rate 25 The United States Supreme Court has stated that determining the appropriate “market 26 rate” for the services of a lawyer is inherently difficult. Blum, 465 U.S. at 895 n.11, 104 S.Ct. 27 1541. In the Ninth Circuit, the established standard “when determining a reasonable hourly 28 rate is the ‘rate prevailing in the community for similar work performed by attorneys of 3 1 comparable skill, experience, and reputation.’” Camacho, 523 F.3d at 979 (quoting Barjon v. 2 Dalton, 132 F.3d 496, 502 (9th Cir. 1997)). “Generally, when determining a reasonable hourly 3 rate, the relevant community is the forum in which the district court sits.” Id. “[R]ates outside 4 the forum may be used if local counsel was unavailable, either because they are unwilling or 5 unable to perform because they lack the degree of experience, expertise, or specialization 6 required to handle properly the case.” Id. 7 In their motion, Plaintiffs request that the Court utilize the “Laffey matrix” to determine 8 the hourly rates applicable for each of their attorneys.1 (Mot. for Attorney’s Fees and Related 9 Costs (#400) at 3). Plaintiffs argue that courts use this matrix, as adjusted for locality, rather 10 than counsel’s own stated rates or those customarily charged by law firms, to determine 11 prevailing market rates when awarding attorney’s fees under a federal fee-shifting statute. Id. 12 According to Plaintiffs, the Laffrey matrix’s prescribed rates include: (1) $465 for attorneys with 13 20+ years of experience, (2) $410 for attorneys with 11-19 years of experience, (3) $330 for 14 attorneys with 8-10 years of experience, (4) $270 for attorneys with 4-7 years of experience, 15 (5) $225 for attorneys with 1-3 years of experience, and (5) $130 for paralegals. Id. at 4. 16 Plaintiffs further request that these rates be adjusted upward based on locality pay differentials 17 between Washington D.C. and Los Angeles, California (noting that there is no locality pay 18 differential for Nevada).2 Id. at 4. 19 The Kishner Defendants and Defendant MSLLC claim that the rates requested by 20 Plaintiffs are unreasonable and that the Court should not use the Laffey matrix to determine 21 a reasonable hourly rate in this context. (Opp. (#414) at 9, 16). The Kishner Defendants state 22 that the Court must consider the relevant community in determining a reasonable hourly rate. 23 The Laffey matrix, according to the Kishner Defendants, does not take into account the 24 25 26 27 28 1 This matrix was originally approved in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). 2 Based on the foregoing, Plaintiffs request the following hourly rates for their attorneys: (1) $476 for Alexander Robertson, IV, Jonathan S. Vick and Jan A. Greben; (2) $420 for Jennifer L. Taylor; (3) $225 for Christian B. Blasbichler; (4) $225 for Jenna L. Motola; and (5) $133 for paralegals. (Mot. for Attorney’s Fees (#400) at 4). 4 1 relevant community at issue in this matter. In addition, the Kishner Defendants state that the 2 fees requested by Plaintiffs - “over $400.00 an hour for most of the attorneys, with three 3 attorneys claiming $476 an hour, are clearly not in line with the rates of the Nevada legal 4 community.”3 (Opp. (#414) at 17-18). 5 In this matter, the Court rejects the use of the Laffey matrix to determine the reasonable 6 hourly rate for purposes of awarding attorneys’ fees. In Prison Legal News, the Ninth Circuit 7 stated that a district court does not need to use the Laffey matrix for purposes of determining 8 appropriate hourly rates. 608 F.3d at 454. The Ninth Circuit noted that the “Laffey matrix is 9 an inflation-adjusted grid of hourly rates for lawyers of varying levels of experience in 10 Washington D.C.” Id. According to the Ninth Circuit, “just because the Laffey matrix has been 11 accepted in the District of Columbia does not mean that it is a sound basis for determining 12 rates elsewhere, let alone in a legal market 3,000 miles away.” Id. Thus, the Court will apply 13 the Lodestar method and look to the prevailing market rates in Las Vegas, Nevada.4 14 Under the lodestar method, in order to “inform and assist the court in the exercise of 15 its discretion, the burden is on the fee applicant to produce satisfactory evidence - in addition 16 to the attorney’s own affidavits - that the requested rates are in line with those prevailing in the 17 community for similar services by lawyers of reasonable comparable skill, experience and 18 reputation.” Camacho, 523 F.3d at 980. “Affidavits of the plaintiffs’ attorney[s] and other 19 attorneys regarding prevailing fees in the community, and rate determinations in other cases 20 . . . are satisfactory evidence of the prevailing market rate.” Id. (quoting United Steelworkers 21 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990)). 22 23 24 25 26 27 28 3 In response to the Kishner Defendants’ opposition, Plaintiffs filed the affidavit of Dennis L. Kennedy, Esq. (Reply (#436) at 8-9). According to Plaintiffs, Dennis L. Kennedy, Esq. is a “prominent Nevada litigator and expert witness on the issue of reasonableness of attorney’s fees.” Id. According to the affidavit, the hourly rates sought by Plaintiffs in the instant motion are reasonable based upon the hourly rates customarily charged in the Las Vegas market. Id. 4 The Supreme Court has stated that the “lodestar method is not perfect,” but that it has “several important virtues.” Perdue v. Kenny A. ex rel. Winn, ___ U.S. ___, 130 S.Ct. 1662, 1672 (2010). “Developed after the practice of hourly billing had become widespread . . . the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Id. In addition, the Supreme Court stated that the lodestar method “is readily administrable” and “objective.” Id. 5 1 In this case, the Court finds that the following hourly rates are reasonable and will be 2 applied for purposes of determining an award of attorneys’ fees in this matter: (1) $300 for 3 Alexander Robertson, IV, Jonathan S. Vick and Jan Greben; (2) $250 for Jennifer L. Taylor; 4 (3) $175 for Christian B. Blasbichler and Jenna L. Motola; and (4) $75 for Monica L. Metoyer, 5 Rina Howard and Susan Glass. 6 B. Number of Hours 7 In addition to determining the reasonable hourly rate, the Court must also determine 8 the number of hours reasonably expended on the litigation. “The fee applicant bears the 9 burden of documenting the appropriate hours expended in the litigation and must submit 10 evidence in support of those hours worked.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 11 (9th Cir. 2007). 12 In their Reply (#436), Plaintiffs attach redacted copies of their attorneys’ billing records, 13 showing itemized entries for each attorney with a specific description of the tasks performed, 14 the billing rate and time billed to one-tenth of an hour increments.5 Upon opposition from the 15 Kishner Defendants, Plaintiffs also revised their attorneys’ fee application and allegedly 16 withdrew fees directly attributable to the Shapiro Defendants and CB Richard Ellis (a party 17 dismissed early in the case).6 Id. 18 In this matter, the Court grants an award of attorneys’ fees for hours incurred following 19 the filing of the Complaint in this matter. The Court will not grant an award of attorneys’ fees 20 21 22 23 24 25 26 27 28 5 Plaintiffs did not file an itemized time sheet with their initial motion. Rather, Plaintiffs included supporting affidavits for the number of hours worked and stated that at the Court’s request each declarant would “produce his or her contemporaneous time records or an abstract thereof for in camera inspection by the Court.” (Mot. for Attorneys’ Fees (#400) at 5). 6 The Court agrees that it is appropriate to limit the award of attorney’s fees to fees incurred litigating against the Kishner Defendants and MSLLC and not other defendants. See Sable Commc’n of California Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184, 194 (9th Cir. 1989)(holding that if the conduct of one defendant was the focus of the litigation and required a larger portion of the time of plaintiff’s counsel, “it is appropriate to allocate the burden of the fee award accordingly”). The Court also finds that Plaintiffs are only entitled to fees incurred in litigating this federal action, and not the pending state court action. 6 1 for hours incurred prior to the commencement of this litigation on November 19, 2008.7 In 2 addition, after reviewing the time sheets submitted by Plaintiffs and the objections stated by 3 the Kishner Defendants, the Court will further limit the hours incurred to those attributable to 4 litigation against the Kishner Defendants and MSLLC in the federal action. 5 Thus, for purposes of this Order, the Court will not award fees for the following time 6 entries submitted by Plaintiffs in their Affidavit of Alexander Robertson, IV, Esq. (#437) and 7 Supplemental Affidavit of Jan A. Greben, Esq. (#438/#440).8 1. State Court Litigation 8 9 Plaintiffs are not entitled to fees incurred by Robertson & Vick for the following 10 transactions which the Kishner Defendants have objected to on the grounds that they relate 11 to the state court proceeding. The Court agrees and strikes these hours from its fee award: 12 1. 02/03/09: Receipt and review of email correspondence from ATR regarding class 13 14 15 16 17 certification hearing transcript and prepare response to the same; 2. 10/01/09: Receipt and review of Motion for Limited Stay Pursuant to NRCP 62 pending Maryland Square’s writ petition to the Supreme Court; 3. 11/19/09: Service of Notice of Class Action and Request for Exclusion to Homeowners; 18 4. 2/25/10: Conference call with Special Master re: CMO and case agenda; 19 5. 4/05/10: Telephone conference with ATR regarding writ issues and deadlines; 20 6. 4/05/10: Prepare email to ATR and co-counsel regarding MS writ and motion to stay, 21 22 23 24 and receipt and review of response to same; 7. 5/03/10: Receipt and review of three docketing statements from Supreme Court regarding filing of Opposition to Motion for Stay; and 8. 6/03/10: Receipt and review of correspondence from Special Master regarding 25 26 27 28 7 This ruling by the Court is without prejudice. Although Plaintiffs may be entitled to fees for hours spent on this litigation prior to the filing of the Complaint, the Court will not grant that request at this time. 8 Aside from these exceptions, the Court finds that the hours incurred as evidenced in the time sheets submitted by Plaintiffs are reasonable. 7 1 invoicing for services; receipt and review of correspondence from Special Master regarding 2 and including fees for services. 2. Litigation Against Other Defendants 3 4 In addition to the foregoing, Plaintiffs are not entitled to fees incurred by Robertson & 5 Vick for the following transactions which the Kishner Defendants have objected to on the 6 grounds that they relate to litigation against other parties. Upon review of the time sheets 7 submitted, the Court agrees and strikes these hours from its fee award: 8 1. 11/19/08: Research secretary of state on-line information to identify current 9 addresses or agents for service of process on all defendants; prepare summonses of all 10 11 12 defendants;9 2. 12/02/08: Receipt and review of email correspondence from ATR regarding open extension to Construction Developers of California; 13 3. 12/02/08: Receive and review affidavits of service of Bank of America, CB Richard 14 Ellis, Construction Developers, General Growth Properties, Macys, Boulevard Mall I, 15 Boulevard Mall II, prepare to be filed with court, efile same with court, note relevant response 16 dates; research rules regarding preparation of certificate of interested parties; 17 18 4. 12/05/08: Receipt and review of email correspondence from MLM regarding service of Delia’s Cleaners; 19 5. 12/12/08: Confer with Whitney Welcher re: extension of time to plead; review 20 proposed stip from counsel for Boulevard Mall entities and execute and return [sic] same 21 extending [sic] time to plead; confer with Shane Clayton re: same; 22 23 6. 12/12/08: Receipt and review of Notice of Appearance (James J. Pisanelli and Debra L. Spinelli); 24 7. 12/12/08: Receipt and review of further email correspondence from counsel for 25 Boulevard Mall defendants regarding stipulation for extension of time to respond to complaint, 26 and receipt and review of response of ATR thereto; 27 28 9 Plaintiffs are entitled to fees incurred for researching information relating to the Kishner Defendants and MSLLC only, and for preparing summonses for the Kishner Defendants and MSLLC. 8 1 8. 12/17/08: Telephone conference with counsel for Construction Developers regarding 2 proper named defendant and further handling; prepare series of email correspondences to 3 counsel for Construction Developers regarding same and further handling; 4 9. 1/15/09: Receipt and review of Verified Petition for Permission to Practice in this 5 Case Only by Attorney Not Admitted to the Bar of this Court and Designation of Local Counsel 6 (for Jeffrey R. Diver); 7 10. 1/16/09: Confer with attorney for Boulevard Mall re: meet and confer; review 8 proposed stipulation from counsel for Boulevard Mall for further extension to answer RCRA 9 complaint; Review answer and cross-claim by Melvin Shapiro and Shapiro Bros. Investment 10 against all Defendants; 11 11. 1/16/09: Receipt and review of email correspondence from counsel for General 12 Growth management regarding and including Stipulation and Order to Extend Time for 13 Responsive Pleading, and receipt and review of response to same; 14 15 16 17 12. 1/20/09: Review emails and attachments from Jeff Diver reo requests to amend RCRA complaint to reflect correct owners names of Boulevard Mall; 13. 1/20/09: Receipt and review of Defendant CB Richard Ellis, Inc.’s Answer to Complaint; 18 14. 2/17/09: Review emails from Jeff Diver and Jan Greben reo Boulevard Mall; 19 15. 3/06/09: Receipt and review of Stipulation and Order to Extend Time to File 20 21 22 Responsive Pleading filed by General Growth Management; 16. 3/12/09: Receipt and review of email correspondece from ATR to J. Greben regarding CB Richard Ellis Management Agreement; 23 17. 3/13/09: Receipt and review of Stipulation and Order to Extend Time to File 24 Responsive Pleading to Cross-Claim (filed by General Growth Management); receipt and 25 review of Stipulation and Order to Extend Time to File Responsive Pleading (Filed by General 26 Growth Management); 27 18. 3/17/09: Receipt and review of Stipulation and Order to Extend Time to File 28 Responsive Pleading (filed by Defendant Boulevard Mall); receipt and review of Stipulation 9 1 and Order to Extend Time to File Responsive Pleading to Cross-Claim (Filed by Boulevard 2 Mall); 3 19. 4/09/09: Receipt and review of Stipulation and Order to Extend Time to File 4 Responsive Pleading to Cross-Claim (General Growth); receipt and review of Stipulation and 5 Order to Extend Time to File Responsive Pleading (General Growth); 6 20. 4/10/09: Receipt and review of Notice of Voluntary Dismissal of Certain Defendants; 7 21. 4/13/09: Receipt and review of Boulevard Mall’s Stipulation and Order to Extend 8 9 10 11 12 13 14 15 16 Time to File Responsive Pleading to Cross-Claim; 22. 4/16/09: Prepare email to ATR regarding General Growth BK and receipt and review of response thereto; 23. 4/20/09: Receipt and review of Notice of Voluntary Dismissal of Certain Defendants (Boulevard Mall); 24. 11/05/09: Prepare for and attend telephonic conference with co-counsel regarding preparation for hearing on Shapiro Brothers’ Motion to Continue Discovery and Trial dates; 25. 11/05/09: Prepare emails to ATR regarding Motion to Continue Discovery Dates and Deadlines, and receipt and review of response to same; 17 26. 11/06/09: Receipt and review of Order (Defendant Melvin Shapiro and Shapiro 18 Brothers Investment Co.’s Motion to Modify the Current Discovery Plan and Scheduling Order 19 and to Continue Trial Date); 20 27. 11/06/09: Prepare for and attend hearing on Motion to Continue Discovery Dates 21 and Deadlines and prepare for and attend conference with state court law clerk regarding 22 calendaring date for Motion to Stay; Multiple telephone conferences with ATR and J. Greben 23 regarding same and strategy for further handling; 24 25 26 27 28 28. 11/06/09: Telephone conference with co-counsel regarding results of hearing on Motion for Discovery Extension; 29. 11//23/09: Receipt and review of further email from counsel for Shapiro Brothers regarding attendance at meet and confer and prepare response to same; 30. 11/24/09: Receipt and review of Defendant CB Richard Ellis, Inc.’s Joinder in 10 1 2 3 Support of Opposition to Plaintiffs’ Motion for Summary Judgment; 31. 11/24/09: Receipt and review of Defendant CB Richard Ellis, Inc.’s Joinder in Opposition to Plaintiffs’ Motion for Summary Judgment; 4 32. 12/28/09: Review Shapiro’s amended answer and cross-claim; 5 33. 12/31/09: Receipt and review of email from counsel for Shapiro Brothers regarding 6 and including supplemental discovery responses; 7 34. 2/01/10: Revise and prepare hearing binder for Motion to Compel hearing 2/2/10; 8 35. 2/04/10: Receipt and review of email from co-counsel regarding and including 9 Motion to Compel; 10 36. 2/08/10: Receipt and review of Notice of Hearing from Court calendaring hearing 11 on Motion to Compel Production of Documents; Receipt and review of email from co-counsel 12 regarding the same; 13 14 37. 2/09/10: Extended telephone conference with co-counsel regarding obligations for response under motion to compel ruling; 15 38. 2/09/10: Receipt and review of series of emails from co-counsel regarding hearing 16 date of motion to compel, and prepare responses thereto; telephone conference with Judge 17 Foley’s assistant regarding hearing date on motion to compel; prepare series of emails to all 18 counsel regarding proposed continued hearing date on motion to compel; receipt and review 19 of emails from all counsel in response to same; prepare email to co-counsel and ATR 20 regarding calendaring opposition and reply dates; 21 22 39. 2/09/10: Conference with SJG regarding hearing dates and opposition dates on Motion to Compel; 23 40. 2/22/10: Receipt and review of Plaintiff Peter J. Voggenthaler’s Reply Brief in 24 Support of Motion to Compel Production of Documents; receipt and review of Defendants 25 Melvin Shapiro and Shapiro Brothers Investment Co.’s Fourth Request for Production of 26 Documents to Each of the Plaintiffs; receipt and review of Defendants Melvin Shapiro and 27 Shapiro Brothers Investment Co.’s Second Set of Interrogatories Directed to Each Plaintiff; 28 41. 3/02/10: Receipt and review of minute order from court vacating hearing on 11 1 2 3 4 5 6 7 Plaintiffs’ motion to compel; 42. 3/02/10: Receipt and review of email from Court regarding and including Order denying Plaintiffs’ Motion to Compel; 43. 3/03/10: Further telephone conference with co-counsel regarding ruling on Motion to Compel; 44. 3/08/10: Research Shapiro Bros. Motion to Compel to identify discovery not responded to, update discover matrix; 8 45. 4/01/10: Receipt and review of Stipulation for dismissal of cross claims of defendant 9 Shapiro Brothers Investment Corp. and Melvin Shapiro, an individual, against cross 10 11 12 defendants CB Richard Ellis, Inc., and order thereon; 46. 4/05/10: Receipt and review of email from counsel for SBIC regarding depositions and further handling; 13 47. 4/13/10: Review Shapiro Bros. rebuttal expert reports; 14 48. 4/14/10: Receipt and review of stipulation and order for dismissal without prejudice 15 16 17 18 19 of CB Richard Ellis; and 49. 05/04/10: Receipt and review of email from counsel for SBIC regarding and including letter re: outstanding discovery issues. In addition, Plaintiffs are not entitled to fees incurred for the following transactions entered by Greben & Associates: 20 1. 11/07/08: Review memo on Al Phillips Defendants; 21 2. 1/28/09: Review email from Diver regarding Boulevard Mall ownership; Review 22 information provided from Diver regarding Boulevard Mall ownership; 23 4. 2/06/09: Review memorandum by opposing counsel Diver; review authority 24 presented in Attorney Diver memorandum; telephone call with attorney Robertson regarding 25 Boulevard defendants’ liability under CERCLA; 26 27 28 5. 2/18/09: Review email from opposing counsel Diver regarding early Rule 26 conference; 6. 2/19/09: Draft email to opposing counsel Spinelli regarding stipulation; review email 12 1 from opposing counsel Howard regarding party conference; draft email to opposing counsel 2 Howard regarding party conference; draft email to opposing counsel Brown and Spinelli 3 regarding party conference; review email from opposing counsel Spinelli regarding party 4 conference; 7. 2/23/09: Review email from opposing counsel Oberman regarding conference for 5 6 Thursday afternoon; 7 8. 2/24/09: Draft email to opposing counsel Howard regarding case management call; 8 9. 2/25/09: Draft email to opposing counsel Diver regarding telephone conference; 9 review emails from counsel Oberman regarding telephone conference; review emails from 10 counsel Diver regarding telephone conference; 10. 2/26/09: Draft email to opposing counsel Spinelli regarding telephone conference; 11 12 review email from opposing counsel Spinelli regarding telephone conference; 13 11. 3/02/09: Draft dismissal of parties represented by opposing counsel Diver; conduct 14 research regarding voluntary dismissals; conduct research regarding identities of parties 15 represented by opposing counsel Diver; 16 12. 3/11/09: Conduct research regarding opposing counsel Howard’s suggested 17 revisions to stipulated scheduling statement; review correspondence from opposing counsel 18 Howard regarding revisions to draft stipulated scheduling statement; 19 13. 3/12/09: Draft opposing counsel Howard’s revisions into stipulated case 20 management order; review opposing counsel Oberman’s revisions regarding revisions to 21 stipulated case management order; 14. 3/15/09: Work on issues with Boulevard Mall counsel regarding cooperation 22 23 agreement access agreement; 15. 3/17/09: Review opposing counsel Oberman’s revisions to stipulated scheduling 24 25 order; 26 16. 3/18/09: Review email from opposing counsel Oberman regarding stipulated 27 scheduling order; review email from opposing counsel Diver regarding stipulated scheduling 28 order; email correspondence with opposing counsel Howard’s office regarding stipulated 13 1 scheduling order; 2 17. 3/19/09: Review emails from opposing counsel Oberman regarding draft scheduling 3 statement; review email from opposing counsel Howard regarding electronic discovery; review 4 emails from opposing counsel Oberman regarding draft scheduling statement; 5 18. 4/03/09: Case administration regarding settlement with Boulevard; 6 19. 4/10/09: Review agreement with Boulevard parties; telephone call with opposing 7 8 9 counsel Diver regarding dismissal; draft dismissal of Boulevard parties; 20. 4/14/09: Review correspondence from opposing counsel Howard regarding property managers; conduct research regarding naming of property managers; 10 21. 4/17/09: Email correspondence with co-counsel Taylor regarding extension for 11 Email correspondence; conduct research regarding relevance objections to discovery; conduct 12 research regarding objections to compound discovery; 13 22. 4/25/09: Review objections to discovery responses; 14 23. 9/29/09: Receipt and review of Shapiro’s Motion to Amend; 15 24. 12/12/09: Phone Conference with Jennifer Taylor regarding motion for protective 16 order; research unreasonable delay in bringing motion to compel responses in preparation for 17 drafting motion for protective order; 18 19 20 21 22 23 25. 12/07/09: Review and revise stipulated protective order on cooperation agreement with boulevard mall defendants; 26. 12/23/09: Exchange correspondence with Shapiro’s counsel regarding protective order on Boulevard Mall documents; 27. 1/07/10: Draft correspondence to Greg Lucht regarding production of cooperation agreement; and 24 28. 4/22/10: Review dismissal of defendant Richard Ellis. 25 Based on the foregoing, the Court finds that an award of attorneys’ fees is warranted 26 in this case. The Court orders that Plaintiffs submit an updated time sheet based on the 27 findings herein in order to determine the correct amount of fees to be awarded. The time 28 sheets should reflect the hourly rate ordered by the Court and strike all hours incurred both 14 1 prior to the filing of the Complaint, as well as the entries identified in the foregoing. 2 II. Bill of Costs 3 In addition to attorneys’ fees, Plaintiffs seek a Bill of Costs in the amount of 4 $331,890.59. These fees include the following:10 (1) fees of the clerk: $350.00; (2) fees for 5 service of summons and subpoena: $320.00, (3) fees for exemplification and the costs of 6 making copies of any materials where the copies are necessarily obtained for use in the case: 7 $28,615.70; (4) attorney travel: $10,106.54 (plus supplemental amount of $425.80); (5) expert 8 witness fees: $165,910.29 (plus supplemental amount of $66,150.33); (6) deposition 9 transcripts: $7,727.25 (plus supplemental amount of $864.58); (7) court reporter transcripts: 10 $329.90; (8) computerized legal research: $14,294.11 (plus supplemental amount of $941.88); 11 and (9) telephone conference calls: $989.61. 12 The Kishner Defendants filed an objection to the foregoing Bill of Costs on the ground 13 that the costs “should be reduced to limit the recovery to only those costs properly taxable for 14 work necessary to prosecute the claims against [the Kishner Defendants].” (Objection to 15 Plaintiffs’ Bill of Costs (#416)). According to the Kishner Defendants, in this case, the 16 numerous costs associated with prosecuting the claims in this action are not associated with 17 the Kishner Defendants. Rather, they were incurred pursuing claims against unrelated 18 defendants such as the Shapiro Defendants, the Boulevard Mall Defendants, and Al Phillips. 19 Id. 20 Pursuant to Federal Rule of Civil Procedure 54(d)(1), the Court should allow costs other 21 than attorneys’ fees “as of course to the prevailing party unless the court otherwise directs . 22 . . .” The Rule creates a strong presumption in favor of awarding costs to the prevailing party. 23 Miles v. State of Cal., 320 F.3d 986, 988 (9th Cir. 2003). A “‘party in whose favor judgment 24 is rendered is generally the prevailing party for purposes of awarding costs under Rule 54(d).’” 25 Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1996)(quoting d’Hedouville v. Pioneer Hotel 26 27 28 10 The fees include the original amount requested in the Bill of Costs and the Supplemental Bill of Costs through August 31, 2010 (#441) filed on September 1, 2010. The Court will not address, at this time, additional costs that have been incurred from August 31, 2010. The Court recognizes that this case is ongoing and that additional fees and costs will be incurred and that Plaintiffs may move for these additional fees and costs at a later time. 15 1 Co., 552 F.2d 886, 896 (9th Cir. 1977)). 2 Because Rule 54(d) presumes the Court will award costs to the prevailing party, the 3 Court must specify reasons for denying costs. Miles, 320 F.3d at 988. Factors that may 4 support denying costs include the losing party’s limited financial resources, the prevailing 5 party’s misconduct, the chilling effect of imposing costs on future civil rights litigants, the 6 difficulty and closeness of the issues, the substance of the prevailing party’s recovery, the 7 losing party’s good faith, and whether the case raised issues of national importance. 8 Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003). 9 The losing party bears the burden of showing why the Court should not award costs. Save 10 Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003). 11 In this case, the Court finds that Plaintiffs are entitled to costs as the prevailing party. 12 However, similar to the award for attorneys’ fees, the Court will limit the bill of costs at this time 13 to costs incurred from the date of the filing of the Complaint. The Court rules on the costs as 14 follows: 15 1. Fees of the Clerk 16 Plaintiffs request $350.00 for fees of the clerk. The Kishner Defendants have not filed 17 an objection to this amount. The Court grants Plaintiffs’ request. 18 2. Service Costs 19 Plaintiffs initially requested $1,175.00 in service costs but upon objection from the 20 Kishner Defendants now seek $320.00. The Court grants this request. 21 3. Copy Fees 22 Plaintiffs seek $28,615.70 in copy costs. The Kishner Defendants object to this amount 23 and state that only $994.50 in taxable copy expenses should be granted. 24 Local Rule 54-6 provides that an itemization of costs claimed pursuant to this section 25 shall be attached to the cost bill. LR 54-6(a). The “[c]ost of one (1) copy of a document is 26 taxable when the copy is admitted into evidence in lieu of an original because the original is 27 either not available or is not introduced at the request of opposing counsel.” Id. The cost of 28 copies “submitted in lieu of originals because of the convenience of offering counsel or 16 1 counsel’s client is not taxable. Id. “The cost of reproducing copies of motions, pleadings, 2 notices and other routine case papers is not allowable.” Id. “The cost of copies obtained for 3 counsel’s own use is not taxable.” Id. 4 In this matter, the documents provided to the Court to support Plaintiffs’ copy charges 5 do not provide sufficient evidence for the Court to determine whether the copy charges are 6 taxable as costs under LR 54-6. Rather, the documents provide a list of copy charges by date. 7 The Kishner Defendants concede that Plaintiffs are entitled to $994.50 in taxable copy 8 expenses. Thus, at this time, the Court will award Plaintiffs copy costs in the amount of 9 $994.50. Plaintiffs may resubmit their copy costs at a later date with evidence sufficient to 10 support that they are taxable under LR 54-6. 11 4. Attorney Travel Expenses 12 Plaintiff initially sought travel reimbursement in the amount of $10,106.54. They have 13 supplemented this amount to include $425.80. The Kishner Defendants argue that this 14 amount should be reduced by $3,538.72 because such amount was incurred before the filing 15 of the Complaint in this matter. The Court agrees and grants Plaintiffs’ attorney travel 16 expenses in the amount of $6,993.62. 17 5. Expert Fees and Costs 18 Plaintiff initially sought $165,910.29 in expert fees and have filed a supplement to 19 include an additional $66,150.33. The Kishner Defendants argue that this amount is 20 unreasonable because it involves expert work performed before the litigation commenced and 21 may relate to the state court litigation or litigation against other defendants. Based on the 22 nature and complexity of this case, the Court awards Plaintiffs their requested expert fees and 23 costs. Plaintiffs have provided evidence that the hourly rate charged by their experts is 24 reasonable and is comparable to the experts retained by the Kishner Defendants. In addition, 25 this case required expert analysis to determine the cause and nature of the contamination. 26 However, $26,810.16 was billed by Plaintiffs’ experts prior to the commencement of this 27 litigation. Thus, the Court will grant Plaintiffs’ request in the amount of $205,250.46 at this 28 time. 17 1 6. Deposition Transcripts 2 Plaintiffs initially sought $7,727.25 (plus supplemental amount of $864.58) in deposition 3 transcript costs. Upon objection, Plaintiffs agree to withdraw their request for fees related to 4 the cost of copies of deposition transcripts. In their Reply (#443), Plaintiffs state that they “will 5 supplement this section upon receipt of an itemized invoice denoting the exact amount of the 6 copy of the deposition” they are withdrawing. Id. at 15. Thus, the Court will deny deposition 7 transcript costs at this time and allow Plaintiff to supplement its request with the correct 8 amount at a later date. 9 10 7. Transcript Costs Plaintiffs initially sought $329.90 in court reporter transcript costs. The Kishner 11 Defendants objected to this amount on the ground that Plaintiffs requested costs for two 12 hearing transcripts. (Objection to Plaintiff’s Bill of Costs (#416) at 7). Upon objection, Plaintiffs 13 agreed to withdraw its request for the hearing transcripts in the amount of $213.48. Thus, the 14 Court grants Plaintiffs’ request for transcript costs in the amount of $116.42. 15 8. Computerized Legal Research 16 Plaintiffs seek $14,294.11 in computerized legal research fees and $941.88 in 17 supplemental computerized research fees. The Kishner Defendants argue that this amount 18 should be reduced if any of the computerized legal research was for the state court action. 19 The Court grants Plaintiffs’ request for computerized legal research fees. Plaintiffs assert that 20 they are seeking costs only for computerized legal research relating to this case. However, 21 at this time, the Court will reduce the amount requested to reflect only costs incurred after the 22 filing of the Complaint in this matter. Thus, the Court grants Plaintiffs’ request in the amount 23 of $10,468.06. 24 7. Conference Calls 25 Plaintiffs seek $989.61 in costs for conference calls. The Kishner Defendants argue 26 that this amount should be reduced if any of the calls were related to the state court action. 27 Plaintiffs state that a review of the conference calls “indicates that they were not for the state 28 court litigation, but for the instant litigation.” (Reply (#443) at 16). Based on the foregoing the 18 1 Court will award conference call costs but limit such amount to the costs incurred after the 2 filing of the Complaint in this action. Thus, the Court grants Plaintiffs’ request in the amount 3 of $439.58. 4 CONCLUSION 5 For the foregoing reasons, it is ORDERED that Plaintiffs’ Motion for Attorneys’ Fees and 6 Related Costs (#400) is GRANTED. Plaintiffs shall submit an updated time sheet based on 7 the findings herein to determine the correct amount of the fees to be awarded. In addition, 8 Plaintiffs are entitled to $224,932.64 in costs. 9 DATED: This 19th day of October, 2010. 10 11 _________________________________ United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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