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Whotoo, Inc. v. Dun & Bradstreet, Inc.

United States District Court, W.D. Washington, Seattle

August 15, 2017

WHOTOO, INC., Plaintiff,
DUN & BRADSTREET, INC., Defendant.


          Honorable Richard A. Jones United States District Judge.


         This matter comes before the Court on Defendant Dun & Bradstreet, Inc.'s (“D&B”) Motion for Attorneys' Fees. Dkt. # 129. No party requested oral argument, and the court finds oral argument unnecessary. For the reasons that follow, the Court GRANTS in part and DENIES in part D&B's motion.


         On December 29, 2016, D&B filed a motion for spoliation concerning Plaintiff WhoToo, Inc.'s (“WhoToo”) failure to produce certain documents. Dkt. # 103. On January 19, 2017, the Court struck the trial date and all pretrial deadlines pending the resolution of the motion. Dkt. # 118. On February 16, 2017, the Court found that further discovery was likely warranted, and thus, that it was necessary to strike the parties' pending summary judgment motions. Dkt. # 119. While the court found that D&B's spoliation motion raised serious issues concerning discovery misconduct by WhoToo, the Court denied D&B's requested remedies and reserved ruling on the appropriate relief. Id. Following the parties' unsuccessful efforts to resolve this dispute through mediation, the Court ordered the parties to submit status reports setting forth their positions on the remedies they believe are appropriate for WhoToo's discovery misconduct.

         After reviewing the parties' positions, the Court found that D&B is entitled to attorneys' fees for the spoliation motion and the portion of its summary judgment briefing that would have differed had WhoToo not withheld the documents at issue.[1] Dkt. # 127. The Court ordered D&B to file a motion for attorneys' fees along with applicable billing records. Id. That motion is now before the Court. Dkt. # 129. WhoToo opposes the motion. Dkt. # 132.


         The Court applies the lodestar method to determine the appropriate amount of attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). “The courts may then adjust this lodestar calculation by other factors.” Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). “The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007).

         “In determining a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986). The Court must then consider certain factors to determine whether the total amount of requested fees is reasonable. Commonly known as the Kerr factors, these are: “(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill necessary to perform the legal services 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 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 relations with the client, and (12) awards in similar cases.” Lafarge Conseils Et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1341-42 (9th Cir. 1986) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). The Court need only consider the factors that are relevant. Id. at 1342. The court has “a great deal of discretion” determining a fee award. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1993).


         A. Hourly Billing Rates

         D&B requests billing rates for its attorney timekeepers as follows: $555 for shareholder Brian Bodine, $490 for shareholder Charles Huber, $295 (2016 rate) and $350 (2017 rate) for associate Aaron Brecher, and $290 for associate Adriane Scola. D&B requests a $275 rate for its paralegal timekeeper, Todd Ziegenbein.

         WhoToo contends that the attorney billing rates requested by D&B are unreasonable. WhoToo, however, failed to oppose D&B's previous motion for attorney fees requesting the same or similar rates. Dkt. ## 36, 41. The Court granted that motion based on WhoToo's nonopposition. Dkt. # 107; see also LCR 7(b)(2) (“Except for motions for summary judgment, if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit.”). Having previously awarded fees at unopposed rates similar to those now requested, the Court now approves the billing rates that D&B requests for its attorney timekeepers.[2]

         WhoToo also contends that D&B's requested paralegal rate of $275 is unreasonable. D&B did not request paralegal fees in its previous motion for fees-as such, WhoToo did not concede the reasonableness of those fees by failing to oppose that motion. The Court agrees that D&B has not offered sufficient evidence to substantiate its request for a $275 paralegal billing rate. “For paralegals, the Court has consistently found $120.00 to be a reasonable hourly rate.” Nat'l Prod., Inc. v. Aqua Box Prod., LLC, No. 12-605-RSM, 2013 WL 12106900, at *3 (W.D. Wash. Mar. 15, 2013) (awarding $120 rate where plaintiff did not submit ...

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