United States District Court, W.D. Washington, Seattle
DEANNA C. THOMAS, et al., Plaintiffs,
EVERETT ASSOCIATION OF CREDIT MEN, INC., et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR ATTORNEY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Everett
Association of Credit Men, Inc. and Monica Jones's Motion
for Attorney Fees. Dkt. #27. This Motion is filed pursuant to
the Court's Order granting Defendants' Motion for
Sanctions, Dkt. #25, where the Court permitted Defendants to
file a separate motion for reasonable fees and costs caused
by Plaintiff's failures to act as detailed in the Motion
for Sanctions. Defendants move for attorney fees and costs in
the sum of $2, 646.00. Dkt. #27. This is based on an hourly
rate of $225 for Defendants' attorney Jeffrey Hasson and
$90 for a legal assistant. Id. at 5. Defendants
summarize the work performed thusly: “[f]or the time
spent on managing the case to obtain discovery from Plaintiff
after the discovery requests were served, preparing the
motion to file the motion for sanctions, preparing the motion
for sanctions, preparing the reply for the motion for
sanctions, preparing the motion to extend the deadlines that
was made necessary by Plaintiff's failure to act, and
preparing the motion for attorney fees, Everett Parties'
attorney's office has spent 12.0 hours as broken down in
the attached declaration.” Id.
Response, Plaintiff Deanna C. Thomas challenges time billed
for: 1) legal assistant work, 2) communications and other
actions to confer or attempt to confer prior to Defendants
filing their Motion for Sanctions, 3) drafting a Motion for
Relief from Case Schedule Deadlines and Motion to Expedite
Motion, 4) attempts to settle the case, 5) communication with
clients, 6) drafting a Reply to the Motion for Sanctions when
no response was filed, and 7) drafting the instant Motion for
Attorney Fees. Dkt. #29.
Reply, Defendants argue that “reasonable attorney fees
incurred prior to the filing of a motion to compel to resolve
discovery disputes are recoverable under [Rule 37].”
Dkt. #30 at 1 (citing Enterasys Networks, Inc. v. DNPG,
LLC, 2006 U.S. Dist. LEXIS 42225 *6, No. 04-CV-209-PB
(D.N.H. June 12, 2006)). Defendants contend that fees for
paralegal work is compensable. Id. at 2 (citing
Missouri v. Jenkins 491 U.S. 274, 285, 109 S.Ct.
2463, 105 L.Ed.2d 229 (1989)). Defendants agree that the
Motion to Expedite should not be compensable and request that
$112.50 be deducted from the original amount requested.
Id. Defendants argue that time spent drafting the
Motion for Attorney Fees are compensable and ask for an
additional $562.50 for researching and drafting the Reply
brief. Id. at 3-4.
37(d)(3) governs the fees awardable in this case:
Sanctions may include any of the orders listed in Rule
37(b)(2) (A)(i)-(vi). Instead of or in addition to these
sanctions, the court must require the party failing to act,
the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(d)(3).
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)). 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 rates of $225 and $90 are reasonable, based
on the experience, skill, and education of Defendants'
attorney and comparable rates for similar attorney work.
See Dkt. #28. The Court agrees with Defendants that
legal assistant time may be awarded under the circumstances
of this case, and Plaintiff cites to no legal authority to
challenge this request.
Court next turns to the hours requested. The Court has
reviewed the submitted declaration and finds the time
generally reasonable and appropriate under the above law.
Rule 37(d)(3) and this Court's prior Order permit
reasonable expenses, including attorney's fees,
“caused by the failure.” The Court agrees with
Defendants that time spent prior to filing the Motion for
Sanctions in this case may be recovered if it was time spent
due to Plaintiff's failure to comply with discovery
obligations. However, the Court agrees with Plaintiff that
time spent soliciting settlement is not compensable, and will
reduce the award by $45. The Court further agrees with
Plaintiff that Defendants have not met their burden to show
that time spent communicating with clients is recoverable,
and will reduce the award by a further $135. Time spent
drafting the Reply in support of Defendants' Motion for
Sanctions was unnecessary and therefore another $225 will be
excluded. See McCown, supra. The Court agrees with
Defendants that time spent on the instant Motion and Reply
was caused by Plaintiff's failure and was generally
reasonable and appropriate.
originally requested attorney fees and costs in the sum of
$2, 646.00. After subtracting $112.50, $45, $135, and $225,
and adding $562.50, the Court calculates the fee award as $2,
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that
Defendants' Motion for Attorney Fees, Dkt. #27, is
GRANTED IN PART as stated above. Plaintiff shall pay
Defendants $2, 691 in attorney fees.