Opinion
CV-23-00084-PHX-ASB
12-15-2023
Theo Shorty, Plaintiff, v. Day and Night Medical Trans Incorporated et al., Defendants.
HON. STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
Before the Court and ripe for disposition is Plaintiff's Motion for Attorneys' Fees and Costs Against All Defendants (Doc. 23).
A. Background
The Court incorporates by reference its summary of the procedural history of this Fair Labor Standards Act (“FLSA”) matter that was contained in the previous Report and Recommendation (Doc. 20). That Report and Recommendation was adopted on November 3, 2023, when this Court granted Plaintiff's Motion for Default Judgment (Doc. 19); awarded statutory damages in the amount of $450.00, plus post-judgment interest, to Theo Shorty; directed the Clerk of Court to enter judgment; and ordered that any response to Plaintiff's Motion for Attorney's Fees be filed within 14 days. (Doc. 21.) No response to the Motion for Attorney's Fees was filed. Per LRCiv 7.2(i), a lack of response can be deemed as consent to granting of the Motion; nevertheless, the Court considers the Motion on its merits under the applicable law.
The full amount of $450.00 was awarded against Defendant Day and Night Medical Trans Incorporated, and $384.00 (of the $450.OO) was awarded against Defendants Day and Night Medical Trans Incorporated, Ammar Adam, and Jane Doe Adam, jointly and severally. (Doc. 21.)
B. Applicable Law and Analysis
In a FLSA action, an award of reasonable attorney's fees and costs to a prevailing plaintiff is mandatory. 29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.”). The Ninth Circuit has held that the word “defendant” in the above-quoted statute “describe[s] the party who may be liable for the plaintiff's attorney's fees” and “refers to the employer against whom the charge of violation has been brought.” Richard v. Alaska Airlines, Inc., 750 F.2d 763, 766 (9th Cir. 1984). Defendants have not disputed that the statutory definition applies to them, and the Court finds that Defendants each meet the statutory definition of a “defendant.”
The Court further concludes that Plaintiff is the “prevailing party,” as Plaintiff “succeed[ed] on any significant issue in litigation which achieve[d] some of the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)); see also Haworth v. State of Nev., 56 F.3d 1048, 1052 (9th Cir. 1995) (applying Hensley in an analysis whether a plaintiff in a FLSA action was the prevailing party). Thus, Plaintiff is entitled to an award of fees and costs under 29 U.S.C. § 216(b), and the Court must determine whether the amount Plaintiff seeks is reasonable under applicable law. Although “[t]he award of an attorney's fee is mandatory, the amount of the award is in within the discretion of the court.” Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 1971) (citation omitted).
1. Fees
“To determine a reasonable attorneys' fee under FLSA, the Court uses the lodestar method.” Gary v. Carbon Cycle Ariz. LLC, 398 F.Supp.3d 468, 485 (D. Ariz. 2019) (citations omitted); see also Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2008) (“District courts must calculate awards for attorneys' fees using the ‘lodestar' method.”). To calculate the lodestar, the Court multiplies “the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (citing McGrath v. Cty. of Nev., 67 F.3d 248, 252 (9th Cir. 1995)).
Therefore, the Court first calculates the lodestar amount. “When a party seeks an award of attorneys' fees, that party bears the burden of submitting evidence of the hours worked and the rate paid. In addition, that party has the burden to prove that the rate charged is in line with the ‘prevailing market rate of the relevant community.'” Carson v. Billings Police Dep't, 470 F.3d 889, (citing Guam Soc'y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 696 (9th Cir. 1996)); Vargas v. Howell, 949 F.3d 1188, 1194 (9th Cir. 2020) (quoting Blum v. Stenson, 465 U.S. 886, 895) (1984) (“Reasonable hourly rates ‘are to be calculated according to the prevailing market rates in the relevant community.'”). The “relevant community,” in turn, “is the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (citing Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)).
a. Hourly Rate
Here, Plaintiff's counsel each seeks fees at an hourly rate of $445.00. (Doc. 23 at 4.) In support of the requested amount, counsel provides the Court with various fee orders from this and other district courts in other default FLSA cases. Among those orders is an October 2023 order granting that hourly amount (Doc. 23-2) (Ekstrand v. True Realty LLC, et al., CV 23-01416-PHX-SRB, ECF No. 17 (D. Ariz. Oct. 20, 2023)). The Court notes the docket in that matter shows the judgment amount far exceeded the judgment amount in this matter, and the Court adopted the proposed form of order that contained no specific analysis. (See id. and ECF No. 15 in CV 23-01416-PHX-SRB). Plaintiff also provides a September 2023 decision finding an hourly rate of $395.00 to be reasonable. (Doc. 23-5) (Aguirre v. Custom Image Pros LLC, et al., No. CV 23-00334-PHX-MTL, ECF No. 20 (D. Ariz. Sept. 12, 2023)).
The Court notes that it examined a similar motion in another FLSA matter brought by the same firm approximately two months ago. (McDuffy v. Tow Mate Towing LLC, et. al., CV 22-00304-PHX-ASB, ECF No. 42 (D. Ariz. Oct. 10, 2023)). In that Report and Recommendation, which was adopted by the District Judge (Id. at ECF No. 45 (D. Ariz. Oct. 30, 2023)), the Court considered a decision that Plaintiff does not bring to the Court's attention in the instant Motion, Perez v. RS Payroll Servs., LLC, et al., CV 22-00027-PHX-SMM (MHB), ECF. No. 16 (D. Ariz. Apr. 12, 2022)). In both Perez and McDuffy, counsel's requested hourly rate was $378.75. After surveying the cases, the Perez court concluded that $350.00 was reasonable. (Id.) This Court concurred in McDuffy with that conclusion (McDuffy, ECF No. 42), and the Court continues to find that an hourly rate of $350.00 is reasonable.
b. Number of Hours Expended
Counsel seek fees for 26.3 hours expended by Clifford Bendau, II. (Doc. 23 at 8.) Counsel avers that the time (a total of 31.6 hours) “was necessary to set up the case file, examine the facts, develop the case, communicate with Plaintiff, review documents, draft and file a complaint, communicate with Defendants, draft and file the Application for Entry of Default and Motion for Default Judgment, and prepare this motion for attorney's fees and costs.” (Id.) Counsel notes that Defendants were engaged initially and settlement was explored, but settlement did not occur. (Id.)
The Court has reviewed the Itemization of Attorney's Fees and Costs submitted as Exhibit I. (Doc. 23-9.) As the Supreme Court observed in Missouri v. Jenkins, “purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate, regardless of who performs them .. . ‘[The] dollar value [of that non-legal work] is not enhanced just because a lawyer does it.'” 491 U.S. 274, 288 n.10 (1989) (quotation omitted); see also Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (clerical tasks “should [be] subsumed in firm overhead rather than billed at paralegal rates”). The Court has reviewed the documentation and determined the following tasks constitute clerical or secretarial tasks for which attorney's fees should not be awarded:
• Send representation agreement (.1); Receive representation agreement, set up file (. 1); Resend representation agreement (. 1); Send Complaint to client for review (.1); Finalize, file complaint (.1); Send documents to process server (.1); File Service Executed (.2); File application for entry of default (.1); Email motion to chambers (.1); Finalize, fie (sic) motion for attorneys' fees (.1).
• In addition, the Court excludes .1 of .5 of the entry “Draft, file application for entry of default”; .1 of .8 in the entry “Draft declaration in support, send to client”; and . 1 of .3 in the entry “Finalize, file motion for default judgment.” Block billing is generally disfavored because the Court is unable to determine exactly how much time is expended on the tasks labeled, but given counsel's practice in Exhibit I of indicating .1 hour is used to file a document, the Court excludes .1 from each of those block entries to account for the task of filing each respective document.
• The total for clerical or secretarial tasks disallowed above is 1.4 hours (.1 + .1 + .1 + .1 + .1 + .1 + .2 + .1 + .1 + .1 + .1 + .1 + .1).
The Court further finds the vague entry labeled “Continue discussing case with process server” fails to fully comply with LRCiv 54.2(e)(2). That Rule requires that counsel “furnish an adequate nonprivileged description of the services in question,” and various explanatory examples are furnished in the Rule for counsel's reference. LRCiv 54.2(e)(2). For example, for a telephone conference, counsel must “identify all participants and the reason for the telephone call.” Id. Due to potential privilege issues, the Court will not question the vague entries of “Communication with client re case status” or “Communication with client re document.” However, the entry of “Continue discussing case with process server,” without any further explanation as required by Rule 54.2(e)(2), is deficient and does not support an award of fees. Thus, that entry is excluded (.2 hours).
In addition, the requested fees includes the amounts expended addressing not one, but two, orders to show cause that were issued against Plaintiff in this case. First, Chief Judge Snow issued an Order to Show Cause for failure to comply with LRCiv 3.7(b). (Doc. 5.) Counsel now seeks reimbursement for fees associated with reviewing and responding to that Order, as well as reviewing the Court's order vacating the show cause hearing. The Court can find no good cause to grant a request for fees that were entirely unnecessary, and which were incurred only because counsel failed to comply with the Local Rules. Second, undersigned issued an Order to Show Cause as to why the matter should not be dismissed for failure to prosecute. (Doc. 16.) The second Order to Show Cause was issued because Plaintiff had not filed anything in the case for months after default was entered. (Id.) Now, in the instant Motion, counsel essentially seeks to be rewarded for failing to diligently prosecute the matter, because he requests all his fees associated with having to explain to the Court why the action should not have been dismissed for failure to prosecute. In the interest of justice, the Court excludes the hours associated with reviewing and responding to each order to show cause, as well as the time spent briefly reviewing the Court's orders addressing each response. Those hours are reflected in the following entries:
• .1 for Review Order to Show Cause (1/31/23); .1 for Draft, file Magistrate Consent Form; .1 for Review agreement to Jurisdiction & Order Vacating Hearing; .1 for Review Order to Show Cause (6/28/23); .5 for Begin drafting Response to Order to Show Cause; .5 for Finalize, file Response to Order to Show Cause; and .1 for Review Order granting extension.
• The total time expended related to orders to show cause is 1.5 hours (.1 +.1 + .1 + .1 + .5 + .5 + .1).
c. Lodestar Calculation
Therefore, of the 26.3 hours billed by Clifford Bendau, II, the Court excludes 3.1 hours (1.4 + .2 + 1.5). The resulting lodestar amount is therefore $8,120.00, which represents 23.2 hours at an hourly rate of $350.00.
“Although in most cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to account for other factors which are not subsumed within it.” Ferland, 244 F.3d at 1149 n.4. That is, “in rare cases, district court may make upward or downward adjustments to the presumptively reasonable lodestar on the basis of those factors set out in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976) that have not been subsumed in the lodestar calculation.” Gates v. Deukmejian, 987 F.2d 1392, 1402 (9th Cir. 1992) (internal citations omitted). The Kerr factors are:
(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.526 F.2d at 70; see also LRCiv 54.2(c)(3).
This matter is a straightforward wage case, wherein Defendants never filed any documents but briefly participated in settlement negotiation. Plaintiff's counsel did not have to conduct much discovery, and there were no complex or significantly contested issues. Although the amount Plaintiff recovered ($450.00) is strikingly low when compared to the lodestar amount ($8,120.00), the Ninth Circuit has held that a district court should not reduce attorney's fees “simply because the damage award was small.” Quesada v. Thompson, 850 F.2d 537, 540 (9th Cir. 1988). After considering the Kerr factors and controlling case law, the Court finds no reason to adjust the lodestar.
2. Costs
In addition to fees, Plaintiff seeks costs totaling $632.60, as well as $2,000.00 in “anticipated costs and fees to be incurred in collection on the judgment.” (Doc. 23 at 1415.) First, the Court finds the out-of-pocket costs to be reasonable and supported by the documentation. Plaintiff's costs were $402 in filing fees and $232.60 in service fees, for a sum of $824.00. (Doc. 23-9.) In support of the request for anticipated collection costs, Plaintiff provides the Court with orders entered by other judges of this District as well as another judicial district. (Docs. 23-11, 40-14, 40-15) (Davis v. Shri Hari Hotels, LLC, et al., No. 2:22-cv-00756-PHX-SPL, at ECF No. 20, p. 4 (D. Ariz. Aug. 24. 2022); Wade v. Shri Hari Hotels, LLC, et al., No. 2:22-cv-00560-JJT, at ECF No. 22, p. 3 (D. Ariz. Jan. 18, 2023); and Cranston v. Ocean Blue Caribbean Restaurant and Bar Corp., No. 2:22-cv-01924-JJT, at ECF No. 24, p. 3-4 (D. Ariz. June 16, 2023)). However, as this Court has previously observed, the Court has not been furnished with “any argument or authority in support of the proposition that the fee-shifting provision at issue here extends to postjudgment collection costs. The one case he cites fails to demonstrate entitlement to such ‘anticipated' costs. In the absence of any legal authority that such collection costs are properly recoverable under the FLSA, counsel will not recover these anticipated expenses.” (Doc. 40-4 at 5) (Perez, ECF No. 16). Thus, the Court will recommend that the request for $2,000.00 in anticipated collection costs be denied.
The case cited by counsel was Export Dev. Canada v. Patterson, Inc., 2008 WL 5205199, at *1 (D. Or. Dec. 11, 2008). Perez, ECF No. 15 at 13.
In sum, the Court will recommend an award of $8,120.00 in fees and $632.60 in costs be awarded to Plaintiff.
C. Conclusion
For the foregoing reasons, IT IS THEREFORE RECOMMENDED:
1. That Plaintiff's Motion for Attorneys' Fees and Costs Against All Defendants (Doc. 23) be granted as modified; and
2. That the Court award Plaintiff $8,120.00 in attorney's fees and $632.60 in costs, for a total of $8,752.60. This award excludes a total of 3.1 total hours in attorney's fees and $2,000 in “anticipated” post-judgment fees. This award is in addition to the statutory damages previously awarded by the Court in Doc. 21.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.