United States District Court, W.D. Washington, Tacoma
FREDERICK T. BREWSTER, Plaintiff,
WACHOVIA MORTGAGE, FSB, WELLS FARGO BANK, NA, Defendants.
ORDER ON ATTORNEY'S FEES ON REMAND
B. Leighton United States District Judge
MATTER is before the Court on remand from the Ninth Circuit
Court of Appeals. Proceeding pro se, Plaintiff
Frederick Brewster filed a lawsuit challenging the validity
of Defendants' foreclosure on his home. This Court
granted summary judgment and dismissed all of Brewster's
claims as meritless. Having foreclosed on his home and
prevailed on summary judgment, Defendants next requested an
attorney's fee award of $29, 561.40 from Brewster, who
has subsequently filed for bankruptcy. Dkt. 30, Dkt. 31-2 at
28; Dkt. 43. Given the straightforward nature and quick
resolution of the case, the Court awarded just $5, 000 in
fees. Brewster appealed the Court's order on summary
judgment and Defendants appealed the Court's award of
attorney's fees. The Ninth Circuit affirmed this
Court's grant of summary judgment on Brewster's
claims [Dkt. 45], but vacated the Court's award of
attorney's fees and remanded for the Court to articulate
with additional specificity the basis for its fee award [Dkt.
46]. The Court obliges.
initial step in determining a reasonable fee is to calculate
the lodestar figure, by taking the number of hours reasonably
expended on the litigation and multiplying it by the
appropriate hourly rate. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). The Court should exclude overstaffed,
redundant, or unnecessary time. Id. at 434. The
Court must also consider the extent of Plaintiffs'
success, as that is a "crucial factor" in
determining an appropriate award. Id. at 440. After
determining the lodestar figure, the court should then
determine whether to adjust the lodestar figure up or down,
based on factors not subsumed in the lodestar figure. These
factors were adopted in this Circuit by Kerr
v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th
Cir. 1975) cert, denied, 425 U.S. 951 (1976). The
applicability of the sixth (whether the fee is fixed or
contingent) and tenth (the "undesirability" of the
case) Kerr factors is doubtful after City of
Burlington v. Dague, 505 U.S. 557 (1992); see also
Davis v. City & County of San Francisco, 976 F.2d
1536, 1549 (9th Cir. 1992), vacated in part on other
grounds, 984 F.2d 345 (9th Cir. 1993) (fixed vs.
contingent nature of fee is not to be considered).
Additionally, numerous courts have subsequently held that the
bulk of these factors are subsumed in the lodestar
calculation. See, e.g., Blum v. Stenson, 465 U.S.
886, 898-900 (1984).
fee award request reflects approximately 102 hours of work of
one partner (Robert Bocko, 33.4 hours at $416/hour), two
associates (Nicolas Vikstrom, 49.5 hours at $244/hour; Daniel
Moore, 5.6 hours at $290/hour), and a paralegal (Shannalyn
West, 13.1 hours at $150/hour). Dkt. 31-2 at 28.
Court awarded just $5, 000 in attorney's fees to
Defendants because this case was not complicated nor did it
involve novel legal issues. Rather, it involved claims by
a pro se plaintiff that were quickly dismissed on
summary judgment. The Court determines that the second,
third, and seventh Kerr factors warrant a
significant downward adjustment of the lodestar figure.
Defendants included line items for unnecessary tasks that the
Court is not inclined to award fees for. For example, the
Court will not compensate Defendants $24 in fees for the six
minutes it took attorney Vikstrom to review the Court's
one-sentence minute order resetting dates and deadlines.
See docket entry for Oct. 25, 2011; Dkt. 31-2 at 10.
Nor will the Court award fees for the time that Defendants
spent erroneously reviewing the loan file of a different
person who shared Plaintiffs name. Dkt. 31-2 at 3.
remarkable that it took three attorneys and one paralegal
over a hundred hours to rebut the frivolous claims of a
single pro se plaintiff. It is equally remarkable
that Defendants appealed the fee award in an effort to
extract another $25, 000 from a bankrupt plaintiff in
default. The Court finds that the amount of time expended by
Defendants is unreasonable, and a fee award of $5, 000 is
appropriate given the straightforward nature of the
litigation, amount of effort, and speed with which it was
the Court awards Defendants $5, 000 in attorney's fees
 The Kerr factors are: (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 ...