United States District Court, W.D. Washington
CEN COM, INC., a Washington Corporation doing business as American Digital Monitoring, Plaintiff,
NUMEREX CORP., a Pennsylvania Corporation; NextAlarm, LLC, a Georgia Limited Liability Company; and DOES 1 -10, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
SUPPLEMENTAL MOTION FOR ATTORNEYS' FEES
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter initially came before the Court on Defendants'
motion to compel Plaintiff to run certain electronic search
terms and to compel certain third parties to respond to
subpoenas duces tecum, which included a request for
attorneys' fees. Dkt. #41. On April 11, 2018, the Court
granted Defendants' motion, granted Defendants'
request for attorneys' fees, and directed Defendants to
file a supplemental motion, appending the evidence necessary
to support their request. Dkt. #81 at 2-6. Defendants have
since filed that supplemental motion. Dkt. #94. Plaintiff
opposes the motion, arguing that Defendants have requested an
unreasonable amount of hours, and objecting to the requested
hourly rates. Dkt. #101. Defendants now ask the Court for a
total award of $8, 787.50 in attorneys' fees. For the
reasons discussed below, the Court GRANTS IN PART AND DENIES
IN PART Defendants' motion.
it sets a fee, the district court must first determine the
presumptive lodestar figure by multiplying the number of
hours reasonably expended on the litigation by the reasonable
hourly rate." Intel Corp. v. Terabyte Int'l,
Inc., 6 F.3d 614, 622 (9th Cir. 1993). The reasonable
hourly rate is determined with reference to the prevailing
rates charged by attorneys of comparable skill and experience
in the relevant community. See Blum v. Stetson, 465
U.S. 886, 895 (1984). In determining the reasonable number of
hours expended on the litigation, the Court may exclude any
excessive, redundant, or otherwise unnecessary hours billed.
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The
Court may also adjust the lodestar with reference to factors
set forth in Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 69-70 (9th Cir. 1975). The relevant Kerr factors
are: (1) the time and labor required; (2) the novelty and
difficulty of the questions; and (3) the skill requisite to
perform the legal services properly. "The lodestar
amount presumably reflects the novelty and complexity of the
issues, the special skill and experience of counsel, the
quality of representation, and the results obtained from the
litigation." Intel, 6 F.3d at 622.
Reasonableness of Rates
Court first examines the hourly rate for time billed by their
counsel requested by Defendants. Defendants seek a billing
rate of $460 per hour (2017) and $475 per hour (2018) for the
work performed by attorney Mathew Harrington, and $275 per
hour (2017) and $310 per hour (2018), both of whom work for
the firm Stokes Lawrence, PS. in Seattle, WA. Dkt. #95 at
¶ ¶ 3-4. Although a paralegal also performed
services on the matter, Defendants do not seek to recover
fees for her time. Id. at ¶ 2.
party seeking fees bears the burden of documenting the hours
expended in the litigation and must submit evidence
supporting ... the rates claimed." Welch v. Metro.
Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007)
(citing Hensley, 461 U.S. at 433). 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, 480 F.3d at
946 (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 Steelw orkers of Am.
v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.
1990). "Generally, when determining a reasonable hourly
rate, the relevant community is the forum in which the
district court sits." Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 979 (9th Cir. 2008) (vacating award
of attorneys' fees in Fair Debt Collection Practices Act
case where district court failed to identify the relevant
community or address the prevailing market rate).
case, Defendants have failed to present adequate evidence
supporting the reasonableness of the rates requested in this
market. See Dkt. #95 at ¶ 3. Indeed, Defendants
support their request with a single statement from attorney
Harrington that he "believe[s] his rate and the rate
of Mr. Zuniga to be commensurate with rates of professionals
with similar experience who represent clients in complex
commercial lawsuits such as this one. Dkt. #95 at ¶ 3.
While defense counsel might "believe" that the
hourly rate is reasonable, Defendants provide no analysis of
the rates charged for these types of cases in the Seattle
market. Given the Court's familiarity with the market and
the rates typically charged by experienced attorneys in these
types of cases, and a review by this Court of similar actions
in which attorney's fees were awarded, the Court finds
that the average rates awarded are typically between $350.00
and $400.00 per hour. Accordingly, given the absence of
proper evidence from Defendants to comparable attorney rates
in the Seattle market, the Court finds that Defendants have
failed to meet their burden to establish a reasonable hourly
rate of more than $400.00 per hour for Mr. Harrington. Mr.
Zuniga's rates appear to be commensurate for the market.
The Court will therefore calculate the lodestar using the
hourly rate of $400 per hour for Mr. Harrington's time,
and the rates proposed for Mr. Zuniga's time.
Reasonableness of Hours
Court now turns to the reasonableness of the hours requested.
"The party seeking fees bears the burden of documenting
the hours expended in the litigation and must submit evidence
supporting" the request. Hensley, 461 U.S. at
433. As noted above, the Court excludes those hours that are
not reasonably expended because they are "excessive,
redundant, or otherwise unnecessary." Hensley,
461 U.S. at 434. Further, the Ninth Circuit has held 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 v. Metro. Life Ins. Co., 480 F.3d
942, 948 (9th Cir. 2007). Likewise, intra-office conferences
between experienced counsel, absent persuasive justification
by the moving party, may be excluded from an award as
unnecessary and duplicative. See Id. at 949.
have presented a summary description of the time spent
related to the motion to compel. Dkt. #95 at ¶ 6. The
Court notes that Defendants filed the initial motion to
compel on February 8, 2018. Dkt. #41. However, Defendants
request hours expended on litigation as far back as June 27,
2017. Dkt. #95 at ¶ 6. A review of that time reveals
that those hours were required for actions that are typical
in litigation of a matter, and not solely related to the
motion to compel. See Id. It is true that attorney
conferences occurred prior to the filing of the motion
regarding the issues raised in the motion. See Id.
However, discovery conferences are mandated by the Federal
Rules of Civil Procedure and the Court's Local Rules as a
matter of course. Accordingly, the Court will not compensate
Defendants for the time entries between 6/27/17 and
Court has reviewed Defendants' attorneys' summary of
time for the remaining hours requested. Dkt. #95 at ¶ 6.
The Court will not award fees for the time Defendants'
counsel spent discussing the case between each other or with
their own clients (as that type of activity is analogous to
an intra-office conference). Further, defense counsel has
provided the court with "block" time entries, which
has left the Court unable to attribute specific time spent on
a particular activity on several dates. ...