United States District Court, W.D. Washington, Tacoma
ORDER ON MOTIONS FOR ATTORNEYS' FEES
HONORABLE RONALD B. LEIGHTON JUDGE
MATTER is before the Court on Defendant Amtax's
Motion for attorneys' fees (from HHM) under
the Environmental Indemnity in the Hidden Hills dispute [Dkt.
# 120], and on Plaintiff 334th Place's Motion for
attorneys' fees (from Amtax) in connection with the
reconvened deposition of Christopher Blake in the Parkway
dispute [Dkt. # 123].
Hidden Hills Environmental Indemnity agreement was discussed
at length in this Court's Order on the parties'
competing motions for summary judgment [Dkt. # 89]. Tamaro
argued that Hidden Hills' appraised value should be
discounted by the potential cost of remediating
Asarco-related arsenic contamination on the site, and she
doggedly sought to make that point with the appraisers and
the Court. The Court rejected her argument for three reasons-
one, she improperly interfered with the
“independent” nature of the third appraisal; two,
the environmental clean-up cost she demanded as a discount
was never going to be incurred; and three, in any event, the
parties had long since agreed that HHM would indemnify its
Limited Partner for the cost of any actual environmental
hypothetical cost of the clean-up was therefore not properly
deducted from the fair market value for purposes of
determining the option price. After that Order, the
Environmental Indemnity agreement was no longer an issue,
except for the fact it provides for fees and costs to the
party prevailing in any litigation under it: “in the
event of litigation concerning this agreement, the prevailing
party shall be entitled to collect from the losing party all
attorneys' fees and costs including those on
appeal.” Neither the Hidden Hills nor the Parkway
Partnership Agreements included an attorneys' fee
seeks $443, 752.50 in fees (and
$169, 357.68 in costs, mostly fees for
expert Anderson) that it claims it incurred in litigating and
prevailing on claims related to the Environmental Indemnity,
from the date the case was filed (November 14, 2017) to the
date the Court sided with Amtax on the appraisal issues on
summary judgment (May 2, 2019). It argues that the
environmental contamination at Hidden Hills predominated in
that (larger) portion of the overall litigation (nine of
thirteen depositions, for example, were on the Hidden Hills
portion of the case). Amtax correctly argues that it
prevailed on its claim that HHM was required to indemnify it
for the cost of any environmental cleanup. Amtax claims it
has excised all the time Perkins Coie spent on the case, and
all the time its attorneys spent on the Parkway dispute. It
claims the remainder relates to the environmental indemnity.
argues that Amtax improperly seeks to recover fees under the
environmental indemnity agreement for work that was wholly
unrelated to it (or only tangentially related to it), seeking
to “shoehorn” the bulk of its fees under the
environmental indemnity. It points out that while Amtax does
not seek fees for Perkins Coie's work, it does claim
$125, 000 in fees incurred even before Amtax asserted its
“environmental indemnity counterclaim.” It also
seeks $159, 000 in expert costs under the agreement, even
though it never presented expert testimony on that topic.
HHM argues that its review of the bills reveals that only
$17, 000 in fees was spent directly on the indemnification
agreement and Amtax's claim under it.
second fee dispute is minor, particularly in the context of
this case. A year ago, the Court ordered that Amtax should
pay the fees associated with Chris Blake's reconvened
Rule 30(b)(6) deposition in the Parkway dispute [Dkt. # 51].
334th seeks $27, 054.91 in fees and costs for that
deposition. Amtax argues that 334th's billing records are
not detailed enough to ascertain whether all the entries are
related to Blake's deposition on the Parkway dispute
(recoverable) and those incurred in preparing to defend
Blake's Hidden Hills deposition, taken the same day.
Amtax points out it already paid $7500 for the cost of the
first deposition. It seeks a 25% discount to reflect fees and
costs that were attributable to the Hidden Hills portion of
Blake's deposition. 334th insists that it already
excluded the time spent preparing and taking Blake's
deposition in connection with the Hidden Hills dispute.
request for $27, 000 for one deposition to some extent
undercuts its claim that Amtax only spent $17, 000 litigating
the environmental indemnity portion of the Hidden Hills
dispute. But it accurately points out that Amtax had three
times as many lawyers working on the case, at much higher
rates, than HHM and 334th did. It seeks a steep discount of
the fees related to the environmental indemnity.
Attorneys' Fee Standard.
first step in determining reasonable fees 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.
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)(the fixed or
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, for example, Blum v. Stenson, 465
U.S. 886, 898-900 (1984).
event, the lodestar calculation is presumptively reasonable,
and adjustments (up or down) are appropriate only in rare and
exceptional cases. Id., see also Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483
U.S. 711, 728 (1987).
attorneys (like HHM's) did excellent work on this case,
as the Court noted and as Amtax reiterates. Even the revised
rates Amtax seeks are high for this market (particularly for
associates and paralegals), but HHM's primary objections
to the fees are based on its claim that Amtax has not
demonstrated that it spent the hours it seeks litigating the
environmental indemnity. Indeed, Amtax ...