Opinion
3:18-cv-00568-AR
04-19-2022
ERIC MACCARTNEY, and LUANNE MUELLER, individually and on behalf of all others, Plaintiffs, v. GORDON, AYLWORTH, & TAMI, P.C., and VISION INVESTIGATIVE SERVICE, LLC, Defendants.
FINDINGS AND RECOMMENDATION ON ATTORNEY FEES
JEFFREY ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Presently before the court is Plaintiffs Eric MacCartney and Luanne Mueller's (collectively “plaintiffs”) Motion for Attorney Fees. For the following reasons, the motion should be granted in part and denied in part.
Procedural Background
Plaintiffs filed this putative class action against defendants Gordon, Aylworth & Tami, P.C. (“GAT”) and Vision Investigative Service, LLC (“Vision”) (collectively “defendants”) on April 3, 2018. In the action, plaintiffs allege that in state court collection actions, GAT misrepresented service costs and sought inflated fees for expedited service provided by Vision that was not necessary or actually incurred, violating the Fair Debt Collection Practices Act (“FDCPA”) and Oregon's Unlawful Trade Practices Act (“UTPA”). Plaintiffs also alleged that, by charging for services not actually provided or costs not actually incurred, GAT and Vision were unjustly enriched.
From 2018 to 2020, the parties litigated two separate motions to dismiss. Defs.' Mot. Dismiss, ECF No. 12, Defs. Mot. Dismiss Lack of Jx., ECF No. 19. In an August 2019 Findings and Recommendation (“2019 F&R”), U.S. Magistrate Judge John V. Acosta recommended granting defendants' motion to dismiss all claims based on the Rooker-Feldman doctrine and issue preclusion. August 2019 F&R 17, ECF No. 17. In an October 2019 Opinion and Order, U.S. District Judge Michael H. Simon declined to adopt the 2019 F&R and returned the case Judge Acosta to consider defendants' anti-SLAPP arguments. Op. & Order 2, ECF No. 43. In a February 2020 Findings and Recommendation (“2020 F&R”), Judge Acosta denied defendants' motions to dismiss. February 2020 F&R at 23-25, ECF No. 52. In March 2020, the parties reported they were engaging in mediation and pending case management deadlines were stayed. Order, ECF No. 58. On June 29, 2020, the parties reported that the case did not settle, and case management deadlines were resumed. Scheduling Order, ECF No. 62. On July 14, 2020, Judge Simon adopted the February 2020 F&R. Order, ECF No. 63.
On June 2, 2021, the parties informed Judge Acosta that a proposed settlement had been reached. Scheduling Order, ECF No. 80. On October 12, 2021, Judge Acosta issued a Findings and Recommendation (“2021 F&R”) granting preliminary approval of the class action settlement. F&R, ECF No. 92. Judge Simon adopted that recommendation. Order, ECF No. 94. As part of the preliminary approval of the settlement, the parties agreed to have the court resolve the issue of attorney fees. Mot. for Prelim. Approval 17, ECF No. 83. On December 24, 2021, plaintiffs filed the instant motion. Pls.' Mot. Att'y Fees, ECF No. 95. Plaintiffs seek a total of $155,422.50 in attorney fees and no costs for work performed by attorneys Michael Fuller, Kelly D. Jones, and Matthew Sutton. Defendants challenge the reasonableness of the hourly rates and number of hours expended by plaintiffs' counsel. The court concludes that oral argument would not be helpful to resolution of the instant motion. LOCAL RULE 7-1(d).
Legal Standards
The FDCPA provides that in a “successful action, ” the defendant is liable for “the costs of the action, together with a reasonable attorney's fee as determined by the court.” 15 U.S.C. § 1692k(a)(3). The FDCPA “makes an award of attorney fees mandatory.” Camacho v. Bridgeport Fin. Inc., 523 F.3d 973, 978 (9th Cir. 2008); FED. R. CIV. P. 54(d)(2) (providing prevailing party entitled to costs and attorney fees if provided by judgment and statute, rule, or other grounds); LOCAL RULE 54-1 & 54-3 (same). See Unopposed Mot. for Prelim. Approval 17 (providing that as part of settlement, parties agreed to have court resolve reasonable attorney fees on motion).
The Ninth Circuit has adopted the “lodestar” method for calculating attorney fees. Fischer v. SJB-P. D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). The court must then decide whether to enhance or reduce the lodestar figure by evaluating a number of factors. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008); Hensley, 461 U.S. at 434. There is a “strong presumption” that the lodestar method produces a reasonable figure and should only be enhanced or reduced in exceptional circumstances. Del. Valley Citizens, 478 U.S. at 565; Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Fischer, 214 F.3d at 1119 n.4. The court has “considerable discretion” in determining the reasonableness of a fee award. Webb v. Ada Cnty., Idaho, 195 F.3d 524, 526 (9th Cir. 1999).
The court may adjust the lodestar to account for factors such as: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Fischer, 214 F.3d at 1119. The court need only address those factors not already subsumed in its lodestar analysis. Hensley, 461 U.S. at 436.
Discussion
I. Reasonable Hourly Rate
The court looks to prevailing market rates to determine a reasonable hourly rate. Blum v. Stenson, 465 U.S. 886, 895 (1984); Gonzalez, 729 F.3d at 1205. Prevailing market rates are those that the local legal market would pay for a case of this nature to a lawyer of comparable skill, experience, and reputation. Blum, 465 U.S. at 897. Judges in this district evaluate fee petitions against the most recent Oregon State Bar Economic Survey (“2017 OSB Survey”). See LOCAL RULE 54-3 Practice Tip (“[T]he Court requests that fee petitions address the Economic Survey and provide justification for requested hourly rates higher than reported by the Survey.”); Roberts v. Interstate Distrib. Co., 242 F.Supp.2d 850, 857 (D. Or. 2002) (in determining the reasonable hourly rate, the District of Oregon uses the OSB Economic Survey “as an initial benchmark” and attorneys should “provide ample justification” for deviating from the Survey rates). Typically, this court limits the hourly rate requested to the 75th percentile of the 2017 OSB Survey. See, e.g., Brady Mktg. Co. Inc. v. Kai U.S.A. Ltd., No. 3:16-cv-1878-MO, 2018 WL 3377083, at *3 (D. Or. July 11, 2018) (noting that awarding “the 75th percentile rate . . . is the usual practice of this district”); McElmurry v. U.S. Bank Nat. Ass'n, Case No. 04-642-HA, 2008 WL 1925119, at *3 (D. Or. April 30, 2008) (recognizing that “[e]xperienced senior attorneys who are specialists in wage and hour law will receive an hourly rate at the 75th percentile rate for their level of experience”). Courts also may consider “the novelty and difficulty of the issues, the skill required to try the case, whether or not the fee is contingent, the experience held by counsel and fee awards in similar cases.” Moreneo, 534 F.3d at 1114.
The economic survey is available at:
https://www.osbar.org/docs/resources/Econsurveys/17EconomicSurvey.pdf.
Plaintiffs seek $155,422.50 in fees based on hourly rates of $525 for 94.10 hours and $325 for 19.70 hours billed by Mr. Fuller, $475 per hour for 171.70 hours billed by Mr. Jones, and $350 per hour for 51.6 hours billed by Mr. Sutton.
Defendants argue that plaintiffs have not adequately justified the hourly rates requested. Defendants contend the issues presented in this action were routine; the FDCPA is a strict liability statute, thereby limiting the risk undertaken by counsel; and that the Declaration submitted by Bonner C. Walsh is not relevant.
The court agrees with defendants that Mr. Walsh's declaration purporting to support plaintiffs' counsels' requested hourly rates is not relevant. Mr. Walsh's approved fees in litigation outside this district does not bear directly on the reasonableness of the hourly rates in this particular action. Decl. Bonner C. Walsh ¶ 1, ECF No. 99 (identifying fee awards and appointments as class counsel in Texas, Missouri, and California). Defendants remaining objections are discussed below.
A. Michael Fuller
Mr. Fuller seeks a variable rate of $525 per hour for 94.10 hours and $325 per hour for 19.70 hours billed in this action. Decl. Michael Fuller (“Fuller Decl.”) Decl. ¶ 12, ECF No. 96. Mr. Fuller has been practicing law since 2009. Mr. Fuller provides that his practice focuses on class actions and civil rights litigation, and that his standard professional rate is $525 per hour. Mr. Fuller states that he seeks compensation at the lower rate for smaller tasks he “deemed general or non-complex.” Fuller Decl. 5, ECF No. 96. Mr. Fuller argues that the court should use the OSB Economic Survey “Table 35: 2016 Hourly Billing Rate - Private Practice” to guide the hourly rate.
The 2017 OSB Survey Table 36 provides that the 2016 median hourly rate for Portland lawyers with ten to twelve years of experience is $300, the 75th percentile hourly rate is $340, and the 95th percentile is $410. Table 35, which does not take years of experience or area of practice into account, provides the median hourly rate for Portland attorneys is $300, the 75th percentile hourly rate is $400, and the 95th percentile hourly rate is $525.
In an April 28, 2020 Opinion and Order on fees and costs in a Fair Credit Reporting Act case, U.S. District Judge Marco A. Hernandez determined that the median hourly rate of $300 adjusted for inflation to $330 was appropriate for Mr. Fuller. Sponer v. Wells Fargo Bank N.A., Case No. 3:17-cv-02035-HZ, 2020 WL 2061829, at *7 (D. Or. April 28, 2020). Mr. Fuller argues that this case is distinguishable from Sponer because it presents significantly more complex issues than Sponer, which involved an individual litigant.
The court agrees with Mr. Fuller that the issues presented in the anti-SLAPP motion to dismiss were complex, which justifies an award higher than the $330 inflation-adjusted median rate awarded by Judge Hernandez in Sponer. However, Mr. Fuller has not sufficiently justified an award above 75th percentile or that the court should utilize the hourly rates from Table 35 instead of the court's customary hourly rate based on years of practice in Table 36. While Mr. Fuller's willingness to engage in civil rights litigation and undertake pro bono work are commendable, he fails to bring to the court's attention any disputed fee petition from this district in which he was awarded an hourly rate greater than $330. The court also finds it appropriate to utilize a ten- to twelve-year experience level because the bulk of the work in this case, including the difficult anti-SLAPP motion, was performed in 2019. For all these reasons, the court finds an hourly rate of $400 reasonable, or the equivalent of the 75th percentile adjusted for inflationthrough December 2021 when the instant motion was filed.
The court uses the CPI Inflation Calculator from the United States Department of Labor, available at https://data.bls.gov/cgi-bin/cpicalc.pl.
Mr. Fuller also seeks $325 per hour for a smaller portion of tasks he describes as “general or non-complex.” Fuller Decl. ¶ 6. For reasons discussed below, many of these entries are clerical or duplicative, and should be eliminated on that basis. Thus, the court does not apply the $325 rate to any of Mr. Fuller's requested time.
B. Kelly D. Jones
Mr. Jones requests compensation at an hourly rate of $475. Decl. Kelly D. Jones Supp. Mot. Att'y Fees (“Jones Decl.”) ¶ 4, ECF No. 97. Mr. Jones has been practicing law since 2007 and focuses his practice on representing consumers, with particular emphasis in litigating consumer class actions. Id. ¶ 8. Mr. Jones contends that his extensive experience as class counsel in consumer class actions supports his requested fee. Mr. Jones argues that under Table 37 of the OSB Survey, the hourly rate for Portland area plaintiff civil litigation attorneys in the 95th percentile is $500, and that his requested rate is commensurate with his experience and skill in area of consumer protection class action litigation.
The 2017 OSB Survey provides that for Portland attorneys with thirteen to fifteen years of experience, the median hourly rate is $300, the 75th percentile is $375, and the 95th percentile is $460. The court observes that in Sponer, Judge Hernandez awarded Mr. Jones an hourly rate of $330, adjusted for inflation. Sponer, 2020 WL 2061829, at *8. As discussed above with respect to Mr. Fuller, the court finds Sponer distinguishable because this case presented more complex legal issues and involved class allegations. And, unlike Sponer, Mr. Jones directs the court's attention to two other cases where he has been appointed class counsel. Jones Decl. ¶ 7. Nevertheless, the court finds an award at the 75th percentile is appropriate based on Mr. Jones's experience, years of practice, and skill. Accordingly, the court finds an hourly rate of $440 reasonable, which reflects the 75th percentile ($375) adjusted for inflation through December 2021 when the instant motion was filed.
C. Matthew Sutton
Mr. Sutton requests compensation at an hourly rate of $350. Decl. Matthew Sutton Supp. Mot. Att'y Fees (“Sutton Decl.”) ¶ 2, ECF No. 98. Mr. Sutton has practiced law since 1992, advised creditors and collection agencies, and represents clients litigating consumer protection claims. Id. ¶¶ 5-7. Mr. Sutton is based in Southern Oregon and represents clients throughout the state. Id. ¶ 10.
The 2017 OSB Survey provides the median hourly rate for attorneys in Southern Oregon with twenty-one to thirty years of practice is $250, the 75th percentile is $275, and the 95th percentile is $300. Mr. Sutton has extensive experience litigating and advising clients on consumer protection matters. Mr. Sutton's experience in service collection lawsuits proved invaluable to plaintiffs' success in this action. The court finds Mr. Sutton's requested hourly rate of $350 reasonable and commensurate with his experience level and skill in this action.
II. Reasonable Number of Hours
The court is responsible for determining the reasonableness of a fee petition. See Gates, 987 F.2d at 1398. The party seeking the fee award bears the burden of demonstrating the number of hours spent was reasonably necessary to the litigation and that counsel made “a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434; Gonzalez, 729 F.3d at 1202. This burden can be satisfied by submitting documentary evidence supporting the hours worked and fees claimed. Hensley, 461 U.S. at 433; U.S. v. $28,000 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015). Fee petitions that include inadequate detail or that fail to separate time for individual tasks may be totally or partially denied, or apportioned accordingly. See Fischer, 214 F.3d at 1121 (noting district court has authority to deny fee requests that are “poorly documented”). Reasonable time spent in preparing a fee petition generally is recoverable. Guerrero v. Cummings, 70 F.3d 1111, 1112 (9th Cir. 1995). Ultimately, a reasonable number of hours is the number of hours that “‘reasonably could have been billed to a private client.'” Gonzalez, 729 F.3d at 1202 (quoting Moreno, 534 F.3d at 1111).
Plaintiffs' counsel asks the court award fees for 113.8 hours expended by Mr. Fuller, 171.7 hours expended by Mr. Jones, and 51.6 hours expended by Mr. Sutton. Defendants object to the number of hours as excessive, duplicative, and argue the hours should be reduced as follows: (1) 39.7 hours for duplicative time spent conferencing with each other; (2) 57.7 hours for time spent between May 2020 and May 2021 because counsels' refusal to provide an estimate of attorney fees prevented settlement earlier; and (3) 6.05 hours for excessive time spent by Mr. Fuller preparing his declaration supporting his requested fees. As explained below, the court finds that some time billed by plaintiffs' counsel is duplicative, excessive, or not compensable, and that some reductions are warranted.
A. Duplication of Effort
In general, “[w]hen attorneys hold a telephone or personal conference, good ‘billing judgment' mandates that only one attorney should bill that conference to the client, not both attorneys.” Nat'l Warranty Ins. Co. v. Greenfield, No. CV-97-01654-ST, 2001 WL 34045734, at *5 (D. Or. Feb.8, 2001); Arnold v. Pfizer, Case No. 3:10-cv-01025-AC, 2015 WL 4603326, at *9 (D. Or. July 29, 2015). And, typically “two attorneys cannot bill for communicating with each other, as such time is duplicative and unnecessary.” Muller v. Country Mut. Ins. Co., Case No. 3:14-cv-01345-MO, 2017 WL 6209701, at *5 (D. Or. Dec. 8, 2017) (internal quotation marks and citation omitted); see also West Linn Corporate Park, LLC v. City of West Linn, No. 3:01-cv-01787-HZ, 2011 WL 4708774, at *12 (D. Or. Oct.4, 2011) (reducing fees for duplicative efforts among counsel such as conferencing with each other).
Judges in this district “routinely exclude from the lodestar calculation any time entries indicating more than one attorney performed the same task.” Whitworth v. Nat'l Enterp. Sys., Case No. CV 08-968-PK, 2010 WL 1924505, at *6 (D. Or. Apr. 2010) (excluding as duplicative time spent by attorneys conferencing with each other in FDCPA case). As one court observed, “[a] party is certainly free to hire and pay as many lawyers as it wishes, but cannot expect to shift the cost of any redundancies to its opponent.” Nat'l Warranty, 2001 WL 34045734 at *5; see also Malbco Holdings, LLC v. AMCO Ins. Co., No. CV-08-585-ST, 2010 WL 2572849, at *12 (D. Or. June 22, 2010) (“[H]aving more than one attorney involved in the case, which necessitates a certain amount of attorney conferencing, while understandable, makes it unreasonable to shift the charges for both attorneys to the other party.”). But see Mardirossian v. Guardian Life Ins. Co. of Am., 457 F.Supp.2d 1038, 1050 (C.D. Cal. 2006) (providing “‘[a]n award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation'”) (quoting Johnson v. Univ. Coll., 706 F.2d 1205, 1208 (11th Cir.1983)).
Here, Messrs. Fuller and Jones seek compensation for numerous emails, conferences, and meetings with each other. Plaintiffs argue that such coordination was necessary, and that the extensive collaboration between Messrs. Fuller and Jones was warranted based on the complexity of this case. Reply 27, ECF No. 106. Plaintiffs further contend that Mr. Sutton's involvement was critical, that “he originally identified these illegal collection practices, and his review of the underlying debt collection documents and attending legal theories and strategy was crucial to litigating this case.” Reply 27, ECF No. 106.
The court recognizes that some collaboration and coordination was required here, and that some tasks were challenging. However, the sheer volume of emails, conferences, and collaboration between Messrs. Fuller and Jones for which they both seek compensation is excessive. The court has painstakingly cross-referenced Fuller and Jones's time entries and finds they both have billed for emailing and conferencing with each other and performing the same task on numerous occasions detailed below. This duplicative practice unnecessarily inflates the fee request and lacks good billing judgment. Where the court could determine the distinct work of each attorney on larger, complex projects, the court has not recommended reductions. And, where the court could decipher that Mr. Fuller performed non-duplicative work, the court recommends eliminating only the duplicative portion in lieu of the entire entry.
Reviewing the billing entries shows that Messrs. Fuller, Jones, and Sutton attended the mediation in May 2020, and that Fuller and Jones attended the mediation in May 2021. The court finds no reduction for multiple attorneys to attend the mediation is necessary here. Given the nature of this litigation, it was likely that the mediator required their attendance and that all attorneys provided valuable insights that aided resolution.
Therefore, upon careful review, the court recommends Mr. Fuller's time, as the junior attorney, be eliminated for the duplicative effort as follows:
Due to voluminous nature of the entries, the court summarizes their content and combines them by date. On some occasions, Messrs. Jones and Fuller performed the same task on different dates. In such instances, the court recommends eliminating the entry from Mr. Fuller's time as the junior attorney.
| 2/6/18 | emails to/from Jones reviewing Sutton memo | .1 |
| 2/8/18 | telephone conference (“t.c.”) with Jones | 1.2 |
| 2/13/18 | multiple in person, t.c., & emails with Jones | 2.1 |
| 2/15/18 | t.c. w/Jones and Sutton, email Sutton re: abuse of process . | 6 |
| 2/19/18 | email from Sutton & review pleading | .2 |
| 2/22/18 | research house bill & multiple emails to/from team | .9 |
| 2/26/18 | multiple emails from Jones & Sutton re: case law | .7 |
| 2/27/18 | multiple emails from Jones, review list of 77 debtors | .6 |
| 2/28/18 | email from Jones re: adequate response from debtors | .1 |
| 3/9/18 | email to/from Jones & Sutton re: Spokeo | .2 |
| 3/10/18 | multiple emails to/from Jones re: expedited service & MacCarntey as class rep. | .4 |
| 3/21/18 | email to/from Jones re: potential class member & expedited service . | 2 |
| 3/27/18 | emails to/from Jones & Sutton re: class rep. Mueller . | 2 |
| 4/2/18 | emails to Jones & Sutton re: GAT aware of class action | .6 |
| 4/3/18 | emails from Jones re: revisions to complaint | .5 |
| 4/5/18 | emails to/from team re: issue preclusion, costs | .2 |
| 4/12/18 | emails to/from team re: PLF coverage | .3 |
| 4/13/18 | reviewed emails & t.c. with team re: PLF coverage | .4 |
| 4/27/18 | emails from opposing counsel (“O.C.”) re: service | .3 |
| 4/30/18 | emails from Jones re: legal research, adding Midland, | |
| McAdory, conduct research re: same | .5 | |
| 5/3/18 | emails from OC re: settlement rejected | .1 |
| 5/25/18 | t.c. Jones re: new OC Xin | .1 |
| 6/8/18 | email team re: division of labor response to MTD | .4 |
| 6/12/18 | emails to/from team re: legal research | .4 |
| 6/16/18 | t.c. w/Jones re: responding to MTD anti-SLAPP | .4 |
| 6/19/18 | emails from team re: revisions to amended compl. | .2 |
| 6/27/18 | emails from court & OC re: am. compl. mooting motion | .2 |
| 7/17/18 | t.c. w/Jones re: timing of response and extension of time | .3 |
| 7/25/18 | email Jones & Sutton re: response brief | .1 |
| 8/17/18 | review reply brief raising litigation privilege, email team | .5 |
| 8/20/18 | confer w/OC re: striking or sur-reply | .4 |
| 8/24/18 | emails from Jones & OC re: conferral dispute | .1 |
| 9/10/18 | review OC declaration re: response to strike motion | .1 |
| 9/12/18 | email from Jones re: no reply necessary | .2 |
| 9/28/18 | emails to/from team re: GAT practices & use of Vision | .3 |
| 1/2/19 | email from Sutton re: potential witness | .2 |
| 1/23/19 | multiple t.c. w/Jones re: sur-reply and litigation privilege | .7 |
| 5/14/19 | email from Sutton re: status of ruling on motion | .1 |
| 5/21/19 | t.c. w/Jones re: status of ruling on motion | .3 |
| 6/24/19 | read email from court re: timing of ruling | .1 |
| 7/9/19 | read email from court setting OA on motion, t.c. w/Jones |
| 7/26/19 | re: same t.c. w/Jones discussing OA | .2 .3 |
| 8/1/19 | t.c. & emails w/Jones re: court ruling and objections | .3 |
| 10/10/19 | t.c. w/Jones re: court ruling, strategy, litigation privilege | 1.2 |
| 10/28/19 | t.c. w/ Jones re: status conference | .8 |
| 11/4/19 | review email from OC to Jones re: MO correction | .1 |
| 2/24/20 | t.c. w/Jones re: mediation strategy | .8 |
| 3/10/20 | t.c. w/Jones re: staying deadlines while case in mediation | .8 |
| 4/13/20 | t.c. w/Jones re: mediation parameters | .4 |
| 5/20/22 | read email from Jones to OC re: ins. coverage | .1 |
| 5/22/22 | t.c. w/Jones re: class size/definition, review response | |
| OC re: class definition, billing records disclosure | .9 | |
| 5/26/20 | team call re: mediation strategy | .4 |
| 5/28/20 | review email response from OC re: class size | .1 |
| 6/15/20 | t.c. w/Jones re: settlement and class data, fees | .4 |
| 8/1/20 | meeting w/Jones re: remaining discovery | .4 |
| 9/23/20 | read email from Jones & Sutton re: GAT document Production email from team re: document production, review docs | .2 .5 |
| 11/10/20 | ||
| 11/11/20 | t.c. w/Jones re: strategy | .4 |
| 12/10/20 | conf. call w/team re: discovery and deadlines | .2 |
| 3/10/21 | team meeting w/Jones re: discovery, depo notices | .5 |
| 3/26/21 | t.c. w/Jones re: depos & history reports | .3 |
| 4/5/21 | t.c. w/Jones re: privilege, waiver, log | .2 |
| 4/13/21 | t.c. w/Jones re: mediation and stay | .2 |
| 4/25/21 | t.c. w/Jones re: mediation availability | .1 |
| 5/17/21 | t.c. w/team re: mediation prep | .2 |
Eliminating the above entries results in a reduction of 25.5 hours in Mr. Fuller's time for duplicative effort.
By comparison, Mr. Sutton's timekeeper records reflect very limited and strategic instances of collaboration with co-counsel, namely on the anti-SLAPP briefing (.3 hours), identifying class members (.8 hours), discussing settlement (.3), and discussing discovery (.3). Mr. Sutton's time is reasonable and no adjustment to Mr. Sutton's time is necessary. Sutton Decl. Ex. 1, ECF No. 98-1.
B. Clerical Tasks
It is well-settled that the court may reduce an attorney's hours for time spent performing clerical work. Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992), vacated on other grounds, 984 F.2d 345 (1993); see Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (noting the dollar value of non-legal work “is not enhanced” because it is performed by a lawyer); Sterling Savings Bank v. Sequoia Crossing, LLC, Civ. No. 09-555-AC, 2010 WL 3210855, at *7 (D. Or. Aug. 11, 2010) (“Tasks considered clerical include, but are not limited to, filing motions with the court, filling out and printing documents, preparing affidavits and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions, and sending documents.”). Costs associated with clerical tasks are generally considered overhead expenses reflected in an attorney's billing rate. Ash Grove Cement Co. v. Liberty Mut. Ins. Co., No. 3:09-cv-00239-HZ, 2014 WL 837389, at *8 (D. Or. Mar. 3, 2014); see also Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing fees for clerical tasks such as filing and organization).
A careful review of Mr. Fuller's time reveals the following administrative tasks, such as filing documents, calendaring dates, coordinating court reporters, and paying invoices. The court notes that most of this time Mr. Fuller billed at his lower rate of $325. Labeling such tasks as “general and non-complex” does not make clerical work compensable. The court recommends that the following entries be eliminated from Mr. Fuller's time:
| 2/14/18 | read Matt email re:scheduling conference call | .1 |
| 3/8/18 | email Jones & Sutton re: scheduling t.c., read replies, | |
| email staff to set up appt. | .3 | |
| 3/14/18 | email from paralegal | .2 |
| 3/15/18 | email from paralegal, proofreading | .3 |
| 3/22/18 | email from paralegal re: letters | .1 |
| 3/31/18 | email from Sutton, calendared item | .1 |
| 4/3/18 | file complaint in ECF, drafted summons | .8 |
| 4/4/18 | emailed copy of complaint to DOJ | .1 |
| 4/10/18 | email staff re: service order | .2 |
| 5/29/18 | email from court & calendared deadline | .1 |
| 6/11/18 | email from court & calendared deadline | .1 |
| 6/22/18 | file amended complaint in ECF | .1 |
| 6/25/18 | email team to mail judges copies to chambers | .1 |
| 7/18/18 | file motion to extend time in ECF & ct. response | .2 |
| 7/26/18 | file response brief in ECF & email to team to send copies to chambers file motion to strike in ECF, review scheduling order | .3 |
| 8/27/18 | ||
| & calendar same | .2 | |
| 2/12/19 | file sur-reply in ECF | .1 |
| 9/20/19 | read court email court setting OA & calendar same | .1 |
| 9/23/19 | read court email re: OA date calendar same | .1 |
| 10/10/19 | read court email setting status conf. & calendar | .1 |
| 10/23/19 | read court email resetting status conf. & calendar | .1 |
| 11/23/19 | read court email and save final docs to case file | .1 |
| 2/27/20 | read court email re: extension of time, saved to file | .1 |
| 2/27/20 | read email re: mediation on 5/27, add to calendar | .1 |
| 3/10/20 | read court email granting stay, calendar JSR date | .1 |
| 6/1/20 | read court email re: deadlines, calendar new date | .1 |
| 7/14/20 | asked team to order court transcript | .1 |
| 8/7/20 | file ADR report in ECF | .1 |
| 10/17/20 | read email re: invoice & inform team to pay | .1 |
| 3/13/21 | read email from Jones re: dates, calendar same | .1 |
| 4/1/21 | calendar depo dates, team to contact reporters | .1 |
| 4/8/21 | email to court report re: coverage | .1 |
| 5/17/21 | email team re: mediation invoice | .1 |
Eliminating these entries results in a reduction of 5.0 hours from Mr. Fuller's time.
C. Excessive Time
1. investigating and filing complaint
Defendants contend that the 44.5 hours spent by Fuller and Jones collectively investigating the claims and filing the complaint were excessive. Reasonable time spent researching claims before a complaint is filed is compensable. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Turner, 305 F.Supp.3d 1156, 1171-72, 1174 (D. Or. 2018). The court must scrutinize fee petitions to ensure that the time expended is “not excessive to the task.” Whitworth, 2010 WL 1924505, at *8 (internal quotation and citation omitted).
The complaint was filed on April 3, 2018. After eliminating the duplicative time from Mr. Fuller's entries, by the court's calculation, Fuller spent 20.6 hours and Jones another 15.6 hours, totaling 36.2 hours investigating and preparing the initial complaint. While the claims were somewhat novel, by Mr. Fuller's own admission, Mr. Sutton uncovered the underlying debt collection documents and legal theories. Reply at 27. The court observes that Mr. Sutton has not billed for any of his time investigating and working up the case. While the court finds 36.2 hours high, especially given that Messrs. Fuller and Jones hold themselves out as specialists in consumer protection and class action suits, the court does not find the 36.2 hours expended investigating and preparing the complaint itself unreasonable. Compare Burge v. Colton Sch. Dist. 53, Case No. 3:14-cv-00605-ST, 2015 WL 4464144, at *5-6 (D. Or. July 2015) (finding 35 hours to draft a complaint reasonable) with Masood v. Cap. Credit & Collection Servs., Case No. CV05-490-MO, 2006 WL 294795, at *2 (D. Or. Feb. 6, 2006) (reducing 30.2 hours spent researching and preparing FCRA complaint to 12 hours).
2. time between mediations
Defendants argue that plaintiffs' fees incurred after the May 2020 failed mediation are excessive and should be eliminated. Defendants argue that plaintiffs' counsels' time spent between the 2020 and 2021 mediation should be eliminated because the case would have settled in 2020 had counsel then provided an estimate of their fees. According to defendants, after the fee estimate was received in 2021, settlement was quickly reached on roughly the same terms as proposed in 2020. The court is not convinced. Cases settle or not for a variety of reasons, and it is not clear to the court that the issue of attorney fees was the solitary sticking point for failing to reach settlement in 2020. See Defenbaugh v. JBC & Assocs. Inc., Case No. C-03-0651 JCS, 2004 WL 1874978, at *5 (N.D. Cal. Aug. 10, 2004) (declining to reduce fees for time spent after settlement offer rejected in FDCPA class action suit). The parties also appear to have been debating the scope and duration of the class and the evidence presented does not suggest counsel acted unreasonably in continuing the litigation. Jones Decl. Ex. 1, ECF No. 107-1.
3. Jones's time
A careful review of Mr. Jones's time reveals that he spent an extraordinary amount of time conferencing and emailing co-counsel, often multiple times on the same day, especially prior to the initial mediation in May 2020. After the May 2020 mediation, plaintiffs' counsel appears to have more effectively divided tasks between them. While the court recommends eliminating duplicative time from Mr. Fuller's request, the court also finds an additional across-the-board reduction of ten percent from Mr. Jones's time is appropriate to fully account for the redundancies. See Gonzalez, 729 F.3d at 1203 (finding that a “district court can impose a small reduction, no greater than 10 percent-a haircut-based on its exercise of discretion and without a more specific explanation”) (simplified). This results in a reduction of 17.1 hours from Mr. Jones's requested time.
4. Mr. Fuller's preparation of fee request
Mr. Fuller's timekeeper records shows that he spent a total of 15.8 hours researching, drafting, and finalizing the motion for attorney fees and his supporting declaration and exhibits.
Fuller Decl. Ex. 1, ECF No. 115. Defendants argue Mr. Fuller spent an unreasonable amount of time preparing his declaration in support of his fee application and suggest that 6.0 hours is reasonable. The court agrees. A prevailing party may recover for reasonable time spent preparing an attorney fee petition. Arnold, 2015 WL 4603326, at *8; see also Schwarz v. Sec'y of Health & Human Servs., 73 F.3d 895, 905 (awarding fees for fees). Preparing attorney fees petitions are relatively straightforward where adequate time records are kept, and the 15.8 hours spent by Mr.
Mr. Fuller's initial timekeeper records submitted in support of his requested fees (ECF No. 96-1) failed to comport with Local Rule 10-1(c) and was resubmitted at the court's request. For ease of reference, the court cites to the reformatted version found in ECF No. 115.
Fuller is excessive. Messrs. Jones and Sutton accomplished the same task in 2.8 hours and 2.0 hours respectively. In fact, Fuller appears to have prepared similar documents supporting his fee request in Sponer in just 4.7 hours. See Sponer, Case No. 3:17-cv-02035-HZ, Decl. Michael Fuller Ex. 1 at 5-6, ECF No. 143-1. Accordingly, the court finds 6.0 hours is reasonable, and Mr. Fuller's time entries from November 19 to November 23, 2021 are reduced by 9.8 hours.
Finally, plaintiffs' counsel suggests that the court should apply “an upward departure or multiplier or fee enhancement” to the fee award. Pls.' Mot. Att'y Fees 4, 11. Plaintiffs fail to cite any authority warranting application of a multiplier or fee enhancement, and the court does not find exceptional circumstances here. The Court has considered the factors outlined in Kerr and finds that no additional adjustment is necessary.
III. Calculation of the Lodestar
Based on the above, the court finds $115,220 in attorney fees reasonable and calculated as follows:
Jones: $440 x 154 hours = $67,760 (171.1 hours less 17.1 hours for redundancies);
Fuller: $400 x 73.5 hours = $29,400 (113.8 less 25.5 hours for duplication of effort, 5.0 hours for clerical work, less 9.8 hours for excessive time);
Sutton: $350 x 51.6 = $18,060 (no reductions necessary).
Conclusion
Based on the foregoing, plaintiffs' Motion for Attorney Fees (ECF No. 95) should be GRANTED IN PART and DENIED IN PART.
Scheduling Order
The Findings and Recommendation will be referred to U.S. District Judge Michael H. Simon. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.