Summary
approving reasonable rates for plaintiffs' attorneys of $350 and $395 per hour
Summary of this case from Central California IBEW/NECA Pension Trust v. Ozzimo Electric, Inc.Opinion
No. C 03-5056 CW.
April 7, 2005
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEYS' FEES
Plaintiff Lucky May moves for an award of attorneys' fees and expenses against Defendants, pursuant to 29 U.S.C. § 1132(g). Defendants oppose the motion on the grounds that Plaintiff's motion failed to comply with Local Rule 54-6 and because Plaintiff's proposed fee award is excessive and the hourly rate unsupported. The matter was taken on the papers. The Court grants Plaintiff attorneys' fees as set forth herein.
BACKGROUND
On September 9, 2004, the Court granted Plaintiff's motion for judgment on the pleadings, finding that Plaintiff was entitled to benefits. On December 20, 2004, the Court entered judgment in favor of Plaintiff awarding the disability benefits withheld, which as of December 8 totaled $63,700.00, and pre-judgment interest. The Court's order also provided,
Plaintiff shall recover attorneys' fees and expenses, if any, as shall be awarded by the Court upon application by Plaintiff under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., which application shall be made by Plaintiff to the Court within 14 days after entry of this judgment.
December 20, 2004 Judgment at 2. In so ordering, the Court adopted the language of Plaintiff's Second Amended Proposed Judgment.
On January 3, 2005, Plaintiff served and filed a bill of costs. On the same day, Plaintiff noticed a motion for February 25, 2005, seeking "an order that she shall recover her attorneys' fees and costs in connection with the litigation." Plaintiff argues in the motion that she is entitled to such an award pursuant to Hummell v. S.E. Rykoff Co., 634 F.2d 446 (9th Cir. 1980). The motion was not accompanied by any declarations or affidavits containing the information required by Local Rule 54-6(b), such as the results of attempts to resolve any disputes with opposing counsel, a statement of services rendered, or a descriptions of the relevant qualifications, experience and statement of customary hourly charges. Therefore, while Plaintiff's motion was timely filed, the form of the motion was deficient.
On January 12, 2005, Defendants filed an opposition to Plaintiff's motion, arguing that it should be denied because its form failed to comply with Local Rule 54-6. In reply, Plaintiff stated that the motion sought only a preliminary determination upon consideration of the Hummell factors, and that Plaintiff's counsel had expected the meet-and-confer process to take place before the February 4, 2005 deadline, pursuant to Local Rule 7-3(a), for filing of Defendants' opposition. Plaintiff's reply contained declarations as to services rendered and a description of counsel's qualifications. See Baum Decl. Defendants then filed a surreply renewing their opposition to Plaintiff's motion for failure to comply with Local Rule 54-6(b) and opposing the amount of Plaintiff's fee request on substantive grounds.
Defendants argue that their opposition was due by January 12, 2005, pursuant to Local Rule 54-2(a), which requires that a party against whom costs are claimed must serve and file any specific objections to the bill of costs within ten days after service. However, Defendants provide no authority to suggest Local Rule 54-2 applied to their opposition to Plaintiff's motion for attorneys' fees as well.
The Court has found, and Defendants do not dispute, that an award of attorneys' fees is warranted pursuant to the Hummell factors. Defendants do not cite any authority suggesting that a subsequent failure to comply with the proper motion form justifies denying a plaintiff fees to which she would otherwise be entitled. Defendants' surreply suggests that ordering Plaintiff to comply with the meet and confer requirement of Rule 54-6(b) at this stage would be futile. Therefore, the Court considers the substance of the calculation of Plaintiff's attorneys' fees.
LEGAL STANDARD
In the Ninth Circuit, reasonable attorneys' fees are determined by first calculating the "lodestar." Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987). "The `lodestar' is calculated by multiplying 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). There is a strong presumption that the lodestar figure represents a reasonable fee, Jordan, 815 F.2d at 1262; however, the district court may adjust the award from the lodestar figure upon consideration of additional factors that may bear upon reasonableness. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).
Determining a reasonable hourly rate is a critical inquiry.Jordan, 815 F.2d at 1262 (citing Blum v. Stenson, 465 U.S. 886, 895 n. 11). In establishing the reasonable hourly rate, the district court should take into account (1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained, Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464 (9th Cir. 1988), and (5) the contingent nature of the fee agreement. City of Burlington v. Dague, 505 U.S. 557, 562-63 (1992). These factors are subsumed in the initial lodestar calculation, and should not serve as independent bases for adjusting fee awards. Morales, 96 F.3d at 363-64. Reasonable fees are generally calculated according to the prevailing market rates in the forum district.Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).
Defendants assert that "the Ninth Circuit has adopted a twelve factor test, as described in Sapper v. Lenco Blade, Inc.," 704 F.2d 1069 (9th Cir. 1983), and then argue that Plaintiff's request for attorneys' fees fails "the Sapper test." First, Dague rather than Sapper is controlling law today. Second, Defendants mischaracterize the Sapper opinion. The Ninth Circuit did not, in fact, describe a twelve factor test, but instead noted,
In exercising its discretion on remand the district court should consider the twelve factors set forth in Kerr v. Screen Extras Guild, Inc. The record must demonstrate that the district court considered the factors established by Kerr, but the court need not discuss each factor. It is sufficient if the record shows that the court considered the factors called into question by the case at hand and necessary to support the reasonableness of the fee award.Sapper, 704 F.2 at 1073 (internal citations and quotation marks omitted). The Court considers the Kerr factors in exercising its discretion, but does not impose a "test" as urged by Defendants.
The Supreme Court has recognized that, while it is appropriate for the district court to exercise its discretion in determining an award of attorneys' fees, it remains important for the district court to provide "a concise but clear explanation of its reasons for the fee award." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Hall v. Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985) (in computing an award, the district court should provide a "detailed account of how it arrives at appropriate figures for `the number of hours reasonably expended' and `a reasonable hourly rate'") (quoting Blum, supra, 465 U.S. at 898).
DISCUSSION
The declaration of Julian Baum, counsel for Plaintiff, is accompanied by a billing statement reflecting $74,715.50 in attorneys' fees incurred by Plaintiff in this litigation. Defendants dispute that amount on the grounds that the requested hourly rates are excessive and the total amount is unreasonable in comparison to Plaintiff's recovery. Defendants do not challenge the number of hours spent by Mr. Baum and co-counsel Robert Weems.
Defendants argue generally that recovery of attorneys' fees that exceed the amount of back benefits owed is not "customary." Defendants provide no evidence to support this proposition, nor do they cite authority that suggests that such recovery should not be awarded. The Court will not reduce the total fee award on this ground.
Defendants also challenge Plaintiff's proposed hourly rates. Plaintiff submits the declarations of attorneys Mr. Baum, Marc G. Fishleder, Daniel Feinberg and R. Bradford Huss as evidence in support of the requested hourly rates and argues that her attorneys' rates are reasonable based on each attorney's educational background and professional experience. Defendants argue that these attorneys' hourly rates are improperly enhanced with contingency fee multipliers. See Cann v. Carpenters' Pension Trust Fund, 989 F.2d 313, 318 (9th Cir. 1993) (holding that award of attorneys' fees in ERISA case cannot be enhanced for contingency). However, Defendants submit no evidence that the hourly rates described in Plaintiff's declarations were indeed enhanced by contingency fee multipliers.
Instead, Defendants simply assert that the declarations are insufficient because they do not necessarily reflect "actual" hourly rates charged to clients. Defendants may be misinterpreting Cann, which pertained to use of contingency fee multipliers, to apply to calculation of the lodestar figure. As the Supreme Court explained in Dague, consideration of an attorney's contingent risk is subsumed into the lodestar calculation. 505 U.S. at 562. As explained below, the Court finds the declarations sufficient to establish that Plaintiff's hourly rate request is within the range of prevailing market rates. The fact that these hourly rates may reflect the contingent nature of the work is entirely appropriate.
Defendants ask the Court to take judicial notice of an unpublished case, Welch v. Metro. Life Ins. Co., No. CV 04-00084 PA (C.D. Ca. Sept. 20, 2004), in which a judge found proposed hourly fee rates to be inflated by an impermissible contingency multiplier in the absence of "evidence that Plaintiff's counsel ever collects $375 or $400 per hour from paying clients except as part of an award of attorneys' fees issued by a court."
The Court grants Defendants' request for judicial notice (Docket No. 50), but finds the reasoning in Welch unpersuasive. The court there clearly relied in part on evidence from a prior case, involving the same plaintiff's counsel, in which a similar fee rate request was found to be unreasonable, as well as "the relevant market rates in the community for this type of matter." In contrast, this Court has previously found the rates of Plaintiff's counsel to be reasonable and in line with rates in this community. In addition, Defendants' position would require that ERISA plaintiffs' attorneys provide evidence of hourly rates "actually charge[d] and/or collect[ed] from [their] clients," Opp. to Pl.'s Reply at 7, despite the fact that these clients generally cannot afford to pay hourly rates and must be represented on contingency. Requiring this type of proof would severely prejudice plaintiffs' counsel.
Mr. Baum's declaration details the hourly billing rate and professional experience of the two attorneys who worked on this case. The attorneys involved in this case have education and prior experience as follows: Mr. Baum graduated from Hastings College of the Law, University of California, in 1987, and has since worked extensively on ERISA cases at the trial and appellate levels; Mr. Weems graduated from Boston University College of Law in 1990, and has experience litigating complex business disputes, including representation of policyholders in litigation with insurers. Mr. Baum and Mr. Weems have seventeen and fourteen years of professional experience, respectively.
Mr. Fishleder declares that partner-level ERISA attorneys in the Bay Area charge between $425.00 and $450.00 per hour, junior partners charge $375.00 per hour, and associates' time is billed at $225.00 per hour. Mr. Fishleder also declares that Mr. Baum's "reputation among his peers is for a high level of professional skill and ability." Mr. Feinberg, an accomplished litigator and ERISA specialist, sought attorneys' fees at hourly rates of $450.00 for his time, and $375.00 and $225.00 for two other attorneys, in another action. He declared that he is familiar with the prevailing market rates in the Bay Area and that the rates he sought were within that range. Finally, Mr. Huss declares that he has practiced in the employee benefits area since 1977 and charges hourly rates of between $425.00 and $450.00. Mr. Huss notes that most ERISA defense attorneys typically charge even higher hourly rates.
Defendants submit no evidence in the form of declarations or affidavits that the hourly rates represented in Plaintiff's declarations are unreasonable or excessive. Considering the cited cases and submitted evidence, the Court therefore finds that the hourly rates requested by Plaintiff's attorneys' are reasonable in light of the prevailing market rate. The declarations demonstrate that partner-level ERISA attorneys in the Bay Area typically seek and obtain fees at an hourly rate in line with that requested by Mr. Baum and Mr. Weems. Mr. Baum and Mr. Weems are partners with considerable professional experience, education and litigation expertise. Neither Mr. Baum nor Mr. Weems has as much professional experience as Mr. Feinberg or Mr. Huss, and they both seek attorneys' fees at lower hourly rates.
However, Mr. Baum and Mr. Weems have not submitted any evidence to support recent increases to their hourly rates of $20 and $50, respectively. In King v. GE Fin. Assurance Co., No. C 02-4144 (N.D. Cal. June 14, 2004), the Court approved hourly rates for Mr. Baum of $395 and for Mr. Weems of $350. The King plaintiff submitted the same declarations in support of his motion for attorneys' fees that are now before the Court in support of the instant motion. Plaintiff has submitted no additional evidence or rationale to support an increase in counsel's fee rates. Therefore, based on the same evidence presented in King, the Court approves hourly fees of $395 for Mr. Baum and $350 for Mr. Weems, for a total of $70,976.50.
CONCLUSION
In conclusion, the Court awards attorneys' fees for all of the hours claimed, at the rate of $395 for Mr. Baum and $350 for Mr. Weems. The Court awards $70,976.50 in attorneys' fees and $717.90 in costs. Defendants shall pay this amount forthwith.
IT IS SO ORDERED.