Opinion
CV-23-0086-PHX-JFM
04-10-2023
Manuel de Jesus Romero Acosta, Plaintiff v. Pindernation Holdings LLC, et al., Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE STEPHEN M. MCNAMEE
James F. Metcalf, United States Magistrate Judge
This matter is before the undersigned magistrate judge awaiting consents pursuant to 28 U.S.C. § 636(c). Because the appropriate resolution of this matter is dispositive and this matter can no longer be deemed pretrial, Est. of Conners by Meredith v. O'Connor, 6 F.3d 656 (9th Cir. 1993), the undersigned proceeds by way of a Report & Recommendation to Senior District Judge McNamee, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order 21-25.
One party's agreement to magistrate judge jurisdiction (Doc.) was filed .
Plaintiff's Motion for Award of Attorneys Fees and Costs (Doc. 20) seeks an award of $5,569.50 (14.1 hours at $395 per hour) for attorney time in prosecuting this action and preparing the instant motion, court costs of $600.20 (for filing fees and costs of service), and $2,000 in “anticipated costs and fees to be incurred in collection on the judgment.”
Plaintiff purports to make this motion pursuant to LRCiv 54.2(b)(2). Rule 54.2 provides: “The provisions of this Local Rule also do not apply to any motion which may be filed after the entry of a default judgment.” LRCiv 54.2(a).
Entitlement to Award - Plaintiff has obtained a default judgment, including interest, costs and attorneys fees against Defendants Pindernation Holdings LLC and Lord Pindernation (aka Michael Pinder), jointly and severally, for $3,109.50 under the Fair Labor Standards Act (29 U.S.C. § 206) and the Arizona Minimum Wage Act (Ariz. Rev. Stat. § 23-363).
The Default Judgment additionally awarded Plaintiff a $3,843 and interest under the Arizona Wages Act, Ariz. Rev. Stat. § 23-355(A). No provision for costs or attorneys fees was made with respect to this award.
Each of the respective statutory schemes provide for payment of attorneys fees to the prevailing party. See 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.”); Ariz. Rev. Stat. § 23-364(G) (“A prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.”).
Amount of Attorneys Fees - The court applies the “lodestar” approach to determining a reasonable fee award, under which the court must first calculate a lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Applying the reasonableness standards at this step includes consideration of such factors as “the novelty and complexity of the issues,” “the special skill and experience of counsel,” the “quality of the representation,” and the “results obtained.” Blum v. Stenson, 465 U.S. 886, 898-900 (1984). Here, the claims are routine for those working in the field, counsel has substantial skill and experience, the quality of representation has been workmanlike, and excellent results have been obtained. The requested rate of $395 per hour is, in light of the undersigned's experience with the prevailing market, reasonable. The hours expended, in total and upon review of the individual records, are reasonable.
The Court observes that some portion of the hours inevitably relates to the Arizona Wages Act claim, for which no fees are to be awarded. However, it appears that in light of the routine nature of the filings and the interrelatedness of the claims, no significant additional time would be expected, which would require apportionment of the hours. See Hensley v. Eckerhart, 461 U.S. 424, 434-435 (1983).
Second the court retains discretion to increase or reduce the presumptively reasonable lodestar fee based upon such factors as: the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved; the ‘undesirability' of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Here, the significant factors appear to be the contingent nature of the fee, the undesirability of the case, and the amount involved. Unpaid wage claims generally involve small amounts (albeit often significant to the unpaid employee), and contingent fees (given that few plaintiffs can afford to pay attorneys out of pocket), making them undesirable cases to all but specialists who can handle them efficiently. Under these circumstances, the undersigned finds no reason to adjust the amount of fees.
The Motion asserts that the costs are advanced by the attorney, without expectation that they be recouped. (Doc. 20 at 10.) However, counsel's Retainer Agreement calls for reimbursement. (Doc. 20, Exh. A at 2.) Cf. Ariz. Sup. Ct. Rule 42, RPC 1.8(e) (authorizing contingent reimbursement, or no reimbursement for indigent clients).
Accordingly, Plaintiff should be awarded the requested amount of fees, $5,569.50.
Costs - The taxable costs allowed are limited. See 28 U.S.C. § 1920; LRCiv 54.1(e); Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 442-443 (1987) (discretion given district judges by Rule 54(d) to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute). Plaintiff has identified the Clerk's filing fees of $402.00 and private process servers' fees $198.20. Filing fees are taxable.
However, Federal Rule of Civil Procedure 4(d), authorize costs of service only where a Plaintiff has first attempted waiver of service. The returns of service (Docs. 9, 10) reflect personal service and do not reflect attempts at waiver of service. Plaintiff's motion does not reflect an attempted waiver and counsel's timesheet reflects the matter being forwarded to the process servicers on January 17, 2023, just 8 days after filing, and the returns (Docs. 9, 10) reflect completion of service one day later, on January 18, 2023. This indicates no wavier was attempted prior to personal service.
Plaintiff argues that the costs allowed under the FLSA extends to any reasonable expense, citing cases from the District of Oregon, and which cite cases from the Tenth and Fourth Circuits. The undersigned accepts the proposition in those cases that a reasonable attorney fee can include an attorney's out of pocket expenses, even if not a taxable cost. See Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (in civil rights case, allowing as part of attorneys fees the non-taxable “out-of-pocket expenses that ‘would normally be charged to a fee paying client'”).
Here, however, the expenses Plaintiff seeks to have reimbursed as part of the fees are those which are circumscribed by Rule 4(d). Plaintiff proffers nothing to suggest that the general authority to allow reimbursement of expenses authorizes a party to evade Rule 4(d). In Crawford the Court found the discretion under Rule 54(d) to assess additional expenses as costs was circumscribed by statutory limitations on the amount of a party's expert witness fees, even if no such limits applied to court appointed experts. 482 U.S. at 442-443. See also Harris, 24 F.3d at 18-19 (allowing non-testify expert expenses as part of fees).
The District of Oregon cases are not controlling and not persuasive. The first, Van Dyke v. BTS Container Serv., Inc., 2009 WL 2997105 (D. Or. Sept. 15, 2009), simply cites the Tenth Circuit and Fourth Circuit cases addressed hereinafter, and does not identify the specific non-taxable expenses allowed. The second, Robledo v. Orellana, 2012 WL 442122 (D. Or. Feb. 10, 2012) adds only a citation to Van Dyke, and while it lists “process service fees,” it engages in no analysis of Rule 4(d).
The Fourth Circuit case, Herold v. Hajoca Corp., 864 F.2d 317 (4th Cir. 1988) relied on Fourth Circuit precedent authorizing attorneys' expenses as part of a recovery of attorneys fees, and only addressed an attorney's travel expenses. The Tenth Circuit case, Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002), applied the same principle, but refused to award the expenses because the claimant failed to identify the expenses, and the trial court had properly rejected them as part of the normal overhead of the attorney, rather than out-of-pocket expenses.
Consequently, Plaintiff should not be awarded anything for the expenses of service.
Anticipated Collection Expenses - Finally, Plaintiff seeks an award for anticipated future costs of collecting on the judgment. Plaintiff cites no controlling authority for such an award, but argues solely upon the basis of district court cases where they have been allowed without analysis. Even if the court had authority to make such an award, Plaintiff proffers no support for the projection of such expenses, or to show that the types of such expenses would be recoverable under applicable authority. Moreover, Plaintiff seeks interest thereon from the date of judgment. Such interest would be inappropriate for expenses not yet incurred.
Interest - Plaintiff properly seeks interest on his costs and attorneys fees from the date of the original award thereon. “Interest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). “Interest runs from the date that entitlement to the fees is secured, rather than from the date that the exact quantity of fees is set.” Friend v. Kolodzieczak, 72 F.3d 1386, 1391-92 (9th Cir.1995) (applying postjudgment interest to attorneys fees and costs).
IT IS THEREFORE RECOMMENDED:
(A) Plaintiff's Motion for Attorneys Fees and Costs (Doc. 20) be GRANTED to the extent of the relief provided herein.
(B) Plaintiff be awarded judgment against Defendant Pindernation Holdings, LLC and Defendant Lord Pindernation (aka Michael Pinder), jointly and severally, for:
1. $5,569.50 in reasonable attorneys fees; and
2. $402.00 in court costs for the Clerk's filing fees.
3. Interest on the foregoing at the rate provided in 28 U.S.C. § 1961(a) from March 23, 2023.
EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).