Opinion
CV-22-00507-PHX-SMB
10-31-2022
Andrea Guzman, Plaintiff, v. Veraz Services LLC, et al., Defendants.
ORDER
HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE
Pending before the Court is Plaintiffs' Application for Award of Attorneys' Fees and Costs (“Application”). (Doc. 32.) In addition, the Court has considered Defendants' Response (Doc. 39) and Plaintiffs' Reply (Doc. 40). During the pendency of these motions, Defendants requested a second extension to their Response deadline (see Doc. 35). Plaintiffs filed a Response (Doc. 36) and Defendants filed a Reply (Doc. 37). Defendants also request leave to file a Surreply (see Doc. 41) to Plaintiffs' Reply (Doc. 40). Plaintiffs filed a Response to Defendants' request for leave. (Doc. 42.)
After considering the parties' arguments and relevant law, the Court will grant and deny in part the Application for the reasons below. The Court will also deny Defendants' second extension request as moot and summarily deny Defendants' request for leave.
I. BACKGROUND
Plaintiff Andrea Guzman worked as a cashier for Defendants' Amigo Check Cashing from March to December 2020. (Doc. 1 at 6.) Guzman filed suit in March 2022 and alleged Defendants' failure to compensate her with overtime wages and the minimum wage. (Id. at 8-12.) In August 2022, this Court consolidated Guzman's action with another action brought by Elena Uribe Garcia, which raised “nearly identical allegations for unpaid overtime under the FLSA” against Defendants. See Guzman v. Veraz Servs. LLC, No. CV-22-00507-PHX-SMB, 2022 WL 3027997, at *1, 3 (D. Ariz. Aug. 1, 2022). About three weeks later, the parties reached a settlement agreement (see Docs. 30-31) and Defendants agreed to pay Guzman $4,000 and Garcia $4,500 (Doc. 31). The settlement also included an “amount to be paid to reimburse Plaintiffs for their attorneys' fees to be determined by the Court.” (Doc. 28-1 at 2.)
II. REASONABLENESS OF REQUESTED AWARD
The parties do not dispute Plaintiffs' entitlement to fees and instead disagree about the reasonableness of Plaintiffs' request for $37,414 in attorneys' fees and costs. (Doc. 32 at 19; Doc. 39 at 1.) Although “[t]he award of an attorney's fee is mandatory, . . . the amount of the award is within the discretion of the court.” Gary v. Carbon Cycle Ariz. LLC, 398 F.Supp.3d 468, 485 (D. Ariz. 2019) (quoting Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 1971)). The Court uses the lodestar method to determine reasonableness under the FLSA, “by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Id. (cleaned up). The lodestar figure is presumptively reasonable, but the Court may adjust it to account for:
(A) The time and labor required of counsel; (B) The novelty and difficulty of the questions presented; (C) The skill requisite to perform the legal service properly; (D) The preclusion of other employment by counsel because of the acceptance of the action; (E) The customary fee charged in matters of the type involved; (F) Whether the fee contracted between the attorney and the client is fixed or contingent; (G) Any time limitations imposed by the client or the circumstances; (H) The amount of money, or the value of the rights, involved, and the results obtained; (I) The experience, reputation and ability of counsel; (J) The “undesirability” of the case; (K) The nature and length of the professional relationship between the attorney and client; (L) Awards in similar actions; and (M) Any other matters deemed appropriate under the circumstances.LRCiv 54.2(c)(3).
A. Hourly Rate
“The party seeking an award of attorneys' fees bears the burden of demonstrating that the rates requested are in line with the prevailing market rate of the relevant community.” Gary, 398 F.Supp.3d at 485 (cleaned up). Plaintiff's counsel may submit his own affidavit and affidavits from other attorneys as evidence of the community's prevailing market rate. United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
Plaintiffs submitted numerous exhibits (see Docs. 32-1-32-20) to support the reasonableness of counsel's charged rate. Those exhibits include the Declaration of Clifford Bendau, a managing attorney of Bendau & Bendau PPLC who works primarily on plaintiff's wage and employment litigation. (Doc. 32-19 at 3.) Clifford Bendau states he has litigated about 400 lawsuits for employees on a contingency fee basis. (Id. at 4.) Clifford Bendau cites at least one District of Arizona case where he received a $395 hourly rate. (See id. at 4-5.) Plaintiffs have met their initial burden. See United Steelworkers of Am., 896 F.2d at 407.
Defendants dispute the hourly rate sought. Defendants merely state that the lowest of Clifford Bendau's cited rates ($350) is appropriate for this case. (Doc. 39 at 18.) In the absence of any evidence or significant argument, the Court will not reduce Clifford Bendau's hourly rate. Defendants note the Application is not supported by a declaration from Christopher Bendau, who allegedly contributed 9.8 hours of work in this case. (See Doc. 32-19 at 7.) Citing LRCiv 54.2(d)(4), Defendants argue any hours sought by Christopher Bendau should be denied. (Doc. 39 at 5.) The Court agrees that Plaintiffs did not sufficiently demonstrate the reasonableness of Christopher Bendau's hourly rate and will therefore not award any fees for work performed by Christopher Bendau.
B. Hours Expended
“Generally, the prevailing party is entitled to recover a reasonable attorneys' fee for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest.” Gary, 398 F.Supp.3d at 486 (cleaned up). “A district court should exclude from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Plaintiffs provided a task-based, itemized statement to show counsel spent a total of 84 hours on this case from March 28, 2022 through September 2, 2022. (See Doc. 32-9 at 3-6.) Defendants object to many of Plaintiffs' time entries as unreasonable. (See generally Doc. 39 at 4-17.) The Court will address each objection in turn.
1. Motions to Consolidate and Strike
Defendants argue Plaintiffs should not be awarded attorneys' fees for Clifford Bendau's unsuccessful efforts in opposing consolidation and trying to strike Defendants' Reply in Support of Consolidation. (Id. at 5.) The Court agrees that the Motion to Strike was unreasonable but disagrees that opposing consolidation was unreasonable. In its August 1, 2022 Order, the Court determined Defendants “made a compelling case for consolidation” in part because the facts of each case were nearly identical. Guzman, 2022 WL 3027997, at *2. Nevertheless, there was nothing improper about filing two separate cases and opposing consolidation. It was not a given that the Court would consolidate the two. The Court also denied Plaintiffs' Motion to Strike because Plaintiff's counsel was incorrect about whether Defendants raised the issue of whether consolidation was more cost-effective. See id. The Court thus concludes that Clifford Bendau's time entries relating to the Motion to Strike, as detailed in Defendants' Response (4.2 hours) (see Doc. 39 at 5-6), shall be excluded from the compensable hour total.
2. Conferences between Clifford and Christopher Bendau
Defendants also argue Plaintiffs should not receive attorneys' fees for 2.9 hours that Clifford and Christopher Bendau spent discussing the case. (Id. at 6-7.) The Court does not agree that these entries warrant a reduction. Defendants identify no legal authority to suggest that attorney discussions are not compensable activities. Cf. City of Riverside v. Rivera, 477 U.S. 561, 573 n.6 (1986) (allowing compensation for productive attorney discussions). Defendants also assert no evidence to support their broad accusation of “bill padding.” (Doc. 39 at 6.)
3. Clerical/Administrative Tasks
Defendants next argue that Plaintiffs should not receive 1.3 hours' worth of tasks that were “primarily clerical in nature.” (Id. at 7.) The Court agrees. “Attorneys fees should not be given for the performance of administrative tasks which could and should be performed by secretarial or paralegal staff.” Thalheimer v. City of San Diego, No. 09-CV-2862-IEG(BGS), 2012 WL 1463635, at *5 (S.D. Cal. Apr. 26, 2012). The time entries highlighted by Defendants were clerical in nature. These tasks included sending representation agreements to both clients, preparing case files, submitting a summons, and filing. (See Docs. 39 at 7-8; 32-2 at 8-10, 13-14.); see also Thompson v. Ariz. Movers and Storage Inc., No. CV-17-03819-PHX-DGC, 2018 WL 2416187, at *3 (D. Ariz. May 29, 2018) (reducing plaintiff's fee award because the same tasks, performed by Christopher Bendau, were clerical in nature). The Court will thus exclude these 1.3 hours.
4. Garcia's Former Attorney
Defendants mistakenly describe 1.6 hours' worth of time entries as “consultations with Plaintiff Garcia's former attorney.” (Doc. 39 at 8.) The Court notes that these highlighted entries involved Clifford Bendau's communication with Garica, document review, and discussions with Christopher Bendau. (Doc. 32-2 at 16.) The Court will therefore not reduce the attorneys' fees award on this basis.
5. Excessive and/or Unnecessary Costs
Finally, Defendants argue Plaintiffs' Application contains many unnecessary or unreasonably excessive tasks. (Doc. 39 at 9.) Defendants contend Plaintiffs' counsel unnecessarily increased the costs of litigation by separately filing these later consolidated cases. Thus, Defendants requests that the Court impose only one filing fee ($402). Plaintiffs' counsel could have filed these cases as one action, and the Court did later find consolidation appropriate. But Defendants identify no legal authority, and the Court has found none, that imposed an obligation for Plaintiffs' counsel to do so. The Court therefore rejects Defendants' request to halve the filing fees.
Citing to various email exchanges, Defendants also contend Plaintiffs' counsel contributed to unnecessary litigation by refusing Defendants' request to “send the legal authority that supported his position” as to Garcia's entitlement to overtime pay. (Id. at 11-12.) The Court finds this contention unpersuasive and unsupported.
Defendants contend Plaintiff Guzman's Motion for Partial Judgment on the Pleadings (Doc. 18) was unnecessary because it was “primarily devoted to regurgitating two (2) uncontested admissions” in Defendants' Answer. (Doc. 39 at 14.) The Court finds Defendants' contention lacks specificity. The Motion raised more than two issues (see Doc. 18 at 3-12) and Defendants' Response does not identify the relevant admissions. Furthermore, Defendants' admissions did not somehow moot Plaintiffs' effort to receive partial judgment. No reduction is therefore warranted.
Defendants contend Plaintiffs' twelve-page July 29, 2022 settlement letter was excessive because it contained a lengthy summary of the cases' facts, prior attempts at resolution, and email exchanges between counsel. (Docs. 39 at 15; 32-10 at 2-13.) Defendants further contend only a small portion of the July 29 letter addressed the Plaintiffs' monetary demands. (Doc. 29 at 15.) The Court agrees that much of the settlement letter was irrelevant to the eventual settlement offer. The letter includes a summary of claims for a non-party (see Doc. 32-10 at 3), a thorough review of multiple docket filings (see id. at 4-5, 7-8), and the cited email exchanges (see id. at 5-8). The Court will halve the following July 29, 2022 time entries: begin drafting demand letter (2.5 hours); continue drafting demand letter (1.3 hours); compile exhibits for demand letter (.5 hours); and finalizing and sending demand letter (.5 hours). (Doc. 32-9 at 5.) Plaintiffs' attorneys' fees award will thus be reduced by 2.4 hours.
Defendants request a reduction of hours based on their characterization that Plaintiffs' counsel cut and pasted content from the July 29 letter into the August 24, 2022 demand letter. (Doc. 39 at 16.) The Court also finds this contention unpersuasive and unsupported.
Defendants contend counsel's preparation of the Application and Reply contain excessive billing entries. (Doc. 39 at 17.) The Court agrees that Clifford Bendau's 23.6 hours spent preparing the Application (Doc. 32-9 at 5-6), and additional 5.8 hours to prepare the Reply (Doc. 40 at 5), are excessive. The Reply does not actually reply to any of the specific challenges to time spent. Instead, Plaintiff's spent five pages criticizing Defendants and their counsel. Nothing in the Reply aided the Court in deciding any issue relevant to attorney fees. The Court will reduce the compensable hours for these tasks by 17.4 for a compensable hour total of twelve hours. This amount will better reflect the proportion of hours counsel should have spent on these tasks in relation to the rest of the case.
C. Adjusted Lodestar Amount
After the aforementioned adjustments, Plaintiffs' compensable hours total 58.7 hours-the deductions are 4.2+1.3+2.4+17.4=25.3. An attorneys' fees award of $23,186.50 ($395 x 58.7 hours) is thus appropriate, in addition to $804 in costs.
III. OTHER MOTIONS
The parties' many competing motions are filled with comments unrelated to the merits of this case. The Court will not address the obvious hostility between the parties' counsel. Before filing their Response (Doc. 39), Defendants requested a second time extension. Because Defendants filed their Response before the Court issued a ruling, Defendants' Second Request for an Extension (Doc. 35) is denied as moot. Defendants also moved for leave to file a Surreply (see Doc. 41) to Plaintiffs' Reply (Doc. 40), and that Motion included a request to sanction Clifford Bendau (Doc. 41 at 2). The Court summarily denies Defendants' request for leave and sanctions. See Kinsey v. Dep't of Veterans Affs., No. CV-19-00835-PHX-SMB, 2019 WL 4228478, at *2 (D. Ariz. Sept. 5, 2019) (“The rules do not contain a provision allowing parties to file sur-replies.”).
IV. CONCLUSION
Accordingly, IT IS ORDERED that Plaintiffs' Application for Attorneys' Fees and Costs is granted in part and denied in part. (Doc. 32.) Defendants must pay Plaintiffs $23,186.50 in attorneys' fees and $804 in costs.
IT IS FURTHER ORDERED that Defendants' Second Motion for Extension of Time to File Response is denied as moot. (Doc. 35.)
IT IS FURTHER ODRERED that Defendants' Motion for Leave to File a Surreply is denied. (Doc. 41.)