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TVI Inc. v. Harmony Enterprises Inc.

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

October 16, 2019

TVI, INC., a Washington corporation, Plaintiff,
v.
HARMONY ENTERPRISES, INC., a Minnesota corporation, Defendant.

          ORDER

          John C. Coughenour United States District Judge.

         This matter comes before the Court on Plaintiff's motion for attorney fees and costs (Dkt. No. 40) pursuant to the Court's August 13, 2019 order (Dkt. No. 39) granting Plaintiff's motion to compel and for spoliation sanctions (Dkt. No. 28). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby issues the following order.

         I. BACKGROUND

         In its August 13, 2019 order, the Court found, inter alia, that Defendant disclosed supplementary discovery after Plaintiff made good faith efforts to obtain the discovery without court intervention and after Plaintiff filed a motion to compel. (See Dkt. No. 39 at 8.) The Court therefore found “that monetary sanctions consisting of Plaintiff's reasonable fees and expenses are warranted under Federal Rule of Civil Procedure 37(a)(5).” (Id.) The Court directed Plaintiff to “file a motion for attorney fees setting forth its expenses incurred in making the present motion to compel.” (Id.) In response to the Court's order, Plaintiff has filed a motion for attorney fees and accompanying declarations setting forth its time and expenses incurred in obtaining the supplemental discovery. (See Dkt. Nos. 40, 41, 51.)

         II. DISCUSSION

         A. Legal Standard

         1. Recoverable Fees

         If a party provides requested discovery only after the moving party files a motion to compel, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A); see, e.g., Hoglund v. Sher-Ber, Inc., 2008 WL 5427793, slip op. at 2 (W.D. Wash. 2008) (awarding Rule 37(a)(5)(A) fees based on work spent “preparing the motion to compel, the supporting declaration, and the proposed order.”). A party may be awarded its reasonable attorney fees incurred in preparing a subsequent fee application. See Anderson v. Dir., Office of Workers Comp. Programs, 91 F.3d 1332, 1325 (9th Cir. 1996) (“[C]ompensation [for time spent preparing fee applications] must be included in calculating a reasonable fee because uncompensated time spent on petitioning for a fee automatically diminishes the value of the fee eventually received”); City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (“[O]ur case law construing what is a ‘reasonable' fee applies uniformly to all [federal fee-shifting statutes].”); Sure Safe Indus. Inc. v. C & R Pier Mfg., 152 F.R.D. 625, 627 (S.D. Cal. 1993) (including time spent drafting request for attorney fees and costs in award of fees under Rule 37).

         2. Calculation of Reasonable Fees

         District courts employ a two-step process to calculate a reasonable fee award. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the court calculates the lodestar figure, which represents the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, the court determines whether to increase or reduce that figure based on several factors that are not subsumed in the lodestar calculation. See Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); see also Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).[1]

         To determine a reasonable billing rate, the court generally looks to “the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). The presumptive reasonable hourly rate for an attorney is the rate the attorney charges. Broyles v. Thurston Cty., 195 P.3d 985, 1004 (Wash.Ct.App. 2008). “The number of hours to be compensated is calculated by considering whether, in light of the circumstances, the time could reasonably have been billed to a private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). A district court should exclude from the lodestar amount hours that are not reasonably expended because they are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. There is a “strong presumption” that the lodestar figure represents the reasonable fee award. Dague, 505 U.S. at 562.

         B. Plaintiff's Reasonable Attorney Fees

         Counsel for Plaintiff-Molly Eckman, William Walsh, and Peter Berg-have practiced civil litigation in the Seattle legal market for 15, 27, and six years respectively. (See Dkt. No. 41 at 2.) The Court has previously approved hourly rates of $350 per hour for partners, $250 per hour for associates, and $125 per hour for support staff. See Campbell v. Catholic Cmty. Servs. of W. Wash., No. C10-1579-JCC, Dkt. No. 120 at 5 (W.D. Wash. 2012); see also A Nationwide Sampling of Law Firm Billing Rates, Nat'l L. J. (Dec. 8, 2008) (showing three Seattle firms with average hourly partner rates of $455, $405, and $498). In this matter, Plaintiff's counsel has charged the following hourly rates: $305 for Ms. Eckman, $477 for Mr. Walsh, and $260 for Mr. Berg. (See Dkt. No. 41 at 5-12.) Plaintiff's counsel has also included hours worked by “K. Green, ” who has an hourly rate of $185 and appears to be a paralegal with Plaintiff's counsel's firm. (See Dkt. Nos. 40 at 3; 41 at 2, 5, 6, 9.) As Plaintiff's counsel's hourly rates are in line with those of similarly-situated attorneys and support staff, the Court finds that the hourly rates are reasonable. See Camacho, 523 F.3d at 979; Broyles, 195 P.3d at 1004.

         The Court's August 13, 2019 order specifically found that sanctions were warranted under Federal Rule of Civil Procedure 37(a)(5) and directed Plaintiff to file a motion for attorney fees “setting forth its expenses incurred in making the present motion to compel.” (Dkt. No. 39 at 8.) Plaintiff's instant motion seeks fees incurred both in making its motion to compel and for spoliation sanctions and in attempting to obtain the discovery prior to filing that motion. (See Dkt. No. 51 at 5-6.) Fees predating Plaintiff's motion to compel and for spoliation sanctions were not included in the Court's award of fees pursuant to Rule 37(a)(5)(A) and will be excluded. See Fed. R. Civ. P. 37(a)(5)(A); (Dkt. No. 39 at 8). Similarly, Plaintiff has requested fees for time spent exclusively on the spoliation portion of its motion to compel and for ...


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