United States District Court, W.D. Washington, Seattle
SANDRA L. FERGUSON, Plaintiff,
BRIAN J. WAID AND THE WAID MARITAL COMMUNITY, Defendants.
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Brian J.
Waid's Motion for Attorney Fees. Dkt. #45. On March 13,
2018, the Court ordered Defendant to file this Motion,
stating, “Defendant shall file a separate motion for
reasonable fees and costs incurred in this case. . . . Such
motion shall be supported by evidence supporting both the
attorney's hourly rate and hours expended.” Dkt.
#40 at 5. In that same Order, the Court had already concluded
that Rule 11 sanctions in the form of attorney fees were
warranted given that “Plaintiff's Complaint is
legally baseless from an objective perspective, and that she
did not conduct a reasonable and competent inquiry before
signing and filing it.” Id.
now requests attorneys' fees in the amount of $44, 092
and costs of $79. Dkt. #45 at 2. Defendant seeks fees for
efforts dating back to the beginning of the lawsuit,
e.g. stating that “[d]uring our December 12,
2017, CR 26(f) conference of attorneys, defense counsel
informed Plaintiff that her claims lacked merit based on a
variety of legal defenses.” Id.
Defendant's fees are based on an hourly rate of $300 per
hour for partners and $260 for associates. Id. at 4.
Defendant cites to comparable rates approved by this Court
involving civil rights and constitutional claims.
Id. (citing cases). Defendants submit records
showing 39.5 hours billed by partners and 162.1 hours billed
by an associate, but only request 165 hours after making
certain deductions. Id. at 5; Dkt. #46 at 5-6; Dkts.
#46-2 through #46-6. Defendant has excluded from its request
any fees or costs incurred in litigating Defendant's
affirmative counter-claims against Plaintiff. Defendant
“reduced by 50 percent any fee entry which referenced
activities related to both the defense of Plaintiff's
claims and the prosecution of Defendant's
counterclaims.” Id. at 6.
opposes this Motion, arguing that fees are not appropriate in
this case. Dkt. #68. However, Plaintiff does not challenge
the reasonableness of the rate or hours requested. Instead,
she argues she did not violate Rule 11 because her claims
were filed in good faith. See Id. at 2. The question
of whether Plaintiff violated Rule 11 has already been ruled
on by the Court, with a previous opportunity for her to
respond. She did not take advantage of that opportunity.
See Dkt. #40 at 4 (“Plaintiff has failed to
file any opposition to this Motion.”) Plaintiff
provides no legal basis for the Court to now reconsider its
ruling on this issue, and the Court declines to do so.
also appears to argue that the $10, 000 in statutory fees are
sufficient punishment. Dkt. #68 at 3. Plaintiff states,
“[t]he Court should not impose additional penalties on
Plaintiff beyond the $10, 000 that has already been imposed
because this was a question of first impression decided by
this Court for the first time.” Id. at 10.
Defendant does not respond to this line of argument.
Court does not intend to award excessive attorney fees.
Rather, the rule states that “[a] sanction imposed
under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others
similarly situated.” Fed.R.Civ.P. 11(c)(4). The rule
repeats this limitation by stating that
“reasonable” attorney fees and expenses can be
awarded if “warranted for effective deterrence.”
Id. The Court finds that Plaintiff's conduct in
this case, including the lengthy procedural history,
dismissal of prior similar claims, and significant time and
effort required of Defendant to defend clearly baseless
claims, warrants a significant fee as a deterrent to her and
to others similarly situated. Plaintiff provides the Court
with no evidence or argument to show “what
suffices” as a deterrence given her financial situation
or those who are similarly situated. The Court has reviewed
the fees below for reasonableness and made deductions.
Accordingly, the Court concludes that fees under Rule 11(c)
are warranted in addition to the previously awarded $10, 000
courts have broad discretion to determine the reasonableness
of fees. Gates v. Deukmejian, 987 F.2d 1392, 1398
(9th Cir. 1992). To make this determination, courts determine
the “lodestar amount, ” which is calculated by
multiplying the number of hours reasonably expended by a
reasonable hourly rate. Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 978 (9th Cir. 2008). The lodestar
figure is presumptively a reasonable fee award. Id.
at 977. The court may adjust the lodestar figure up or down
based upon the factors listed in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). The court
need not consider the Kerr factors, however, unless
necessary to support the reasonableness of the fee award.
Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158
(9th Cir. 2002). In the Ninth Circuit, “the
determination of a reasonable hourly rate ‘is not made
by reference to the rates actually charged the prevailing
party.'” Welch v. Metro. Life Ins. Co.,
480 F.3d 942, 946 (9th Cir. 2007) (quoting Mendenhall v.
Nat'l Transp. Safety Bd., 213 F.3d 464, 471 (9th
Cir. 2000)). “Rather, billing rates should be
established by reference to the fees that private attorneys
of an ability and reputation comparable to that of prevailing
counsel charge their paying clients for legal work of similar
complexity.” Id. (internal quotation omitted).
“Affidavits of the plaintiffs' attorney and other
attorneys regarding prevailing fees in the community, and
rate determinations in other cases, particularly those
setting a rate for the plaintiffs' attorney, are
satisfactory evidence of the prevailing market rate.”
United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403, 407 (9th Cir. 1990). “The party seeking
fees bears the burden of documenting the hours expended in
the litigation and must submit evidence supporting those
hours…” Welch, 480 F.3d at 945-46
(citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). It is reasonable for a district court to conclude
that the party seeking attorney's fees fails to carry its
burden of documenting the hours expended when that party
engages in “block billing” because block billing
makes it more difficult to determine how much time was spent
on particular activities. Welch, 480 F.3d at 948.
The district court “should exclude any hours
‘that are excessive, redundant, or otherwise
unnecessary.'” McCown v. City of Fontana,
565 F.3d 1097, 1102 (9th Cir. 2009) (quoting
Hensley, 461 U.S. at 434).
Court will first address the hourly rate. The Court finds
that the hourly rate of $300 per hour for partners and $260
for associates are reasonable, based on the experience,
skill, and education of each attorney, and supported with
citations to relevant cases where similar billing rates were
awarded. See Dkt. #45 at 4.
Court next turns to the hours requested. The Court has
reviewed the submitted records and the deductions proposed by
Defendant and finds them generally reasonable and appropriate
under the above law. Defendant may claim fees for time spent
since the beginning of this case, since it is the Complaint
itself that constituted the violation of Rule 11. The Court
appreciates that Defendant has already separated out and
discounted all entries related to his counterclaims. However,
the Court has determined that certain remaining entries are
excessive, redundant, or otherwise unnecessary, or constitute
improper block-billing. Defendant was billed at least 36.1
hours related to his “Rule 11 motion, ” including
block-billed entries. Considering the 12-page Motion that was
ultimately filed, the Court finds this total excessive. The
Court also observes an apparent duplication of efforts by
defense counsel related to this Motion. The Court will deduct
from the award half of this time at a rate of $260 per hour,
or $4, 693. No other deductions are warranted.
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that Defendant
Brian J. Waid's Motion for Attorney Fees (Dkt. #45) is
GRANTED IN PART as stated above. Plaintiff Ferguson shall pay
Defendant $39, 399 in attorney's fees and $79 in costs as
a sanction under Rule 11(c).
 The Court notes that Defendant likely
has other valid bases for obtaining these same attorney fees.
The Court previously stated that attorney's fees
available in this case under Rule 11 are
“duplicative” of those available under RCW
4.24.510 and 42 U.S.C. §1988. Dkt. #40 at 5. Defendant
previously sought those fees, and Plaintiff failed to file a
valid response to the Motion containing those requests.
See id. By local rule, “[e]xcept 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.” LCR
 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, 104 ...