Opinion
2:06-cv-2603-GEB-KJM.
June 23, 2008
ORDER
Plaintiff states in his motion that oral argument is unnecessary. This matter was submitted for decision without oral argument. L.R. 78-230(h).
Plaintiff moves for $15,829.43 in attorneys' fees and costs under 42 U.S.C. § 12205 and California Civil Code section 52(a). (Dkt. No. 28.) Defendant Thrifty Payless contends only $6,827.68 in fees and costs should be awarded. (Opp'n at 17:18-19.
On January 23, 2008, Defendant E. Bidwell Glenn LLC were dismissed from this action pursuant to a Stipulation and Order filed January 23, 2008.
BACKGROUND
Plaintiff brought suit against Defendants Thrifty Payless, Inc., dba Rite Aid # 6071 ("Defendant") and E. Bidwell Glenn LLC, under the federal Americans with Disability Act ("ADA") and California statutes relating to access of public facilities after he allegedly encountered architectural barriers at a Rite Aid in Sacramento, California. (Compl. ¶¶ 1-2.) On February 18, 2008, Plaintiff accepted Defendant Rite Aid's Offer of Judgment, which encompassed both injunctive relief and $4,001 in monetary damages. (Dkt. No. 25.) On February 21, 2008, the Clerk of the Court entered judgment in Plaintiff's favor in accordance with Plaintiff's acceptance of the offer of judgment. (Dkt. No. 26.)STANDARD
Plaintiff, as the prevailing party in an ADA action, may recover "reasonable attorney's fees, including litigation expenses, and costs." 42 U.S.C. § 12205. When determining the reasonableness of a fee request, courts typically begin by using the lodestar method. Under this approach, "a reasonable hourly rate [is multiplied] by the number of hours reasonably expended on the litigation." Widrig v. Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). The lodestar figure may be adjusted based on an evaluation of the following Kerr factors:
"Because the court finds that plaintiff is entitled to attorney's fees and costs under the ADA, the court does not address the standards for an award under California law." Chapman v. Pier 1 Imports, Inc., 2007 WL 2462084, at *1 (E.D. Cal. Aug. 24, 2007).
(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.Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000);Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). A "strong presumption" exists that the lodestar figure represents a "reasonable fee," and therefore, it should only be enhanced or reduced in "rare and exceptional cases." Fischer, 214 F.3d at 1119 n. 9 (citing Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986)).
ANALYSIS
I. Reasonable Hourly Rate
The parties dispute the appropriate hourly rates to be used in calculating the fee award. Plaintiff requests rates of $350 per hour for attorney Lynn Hubbard, $225 per hour for associate attorneys Scottlynn Hubbard and Mark Emmett, and $90 per hour for paralegals. (Mot. at 3:18.) Plaintiff submitted the declaration of his attorney Lynn Hubbard III in support of the requested rates, in which Mr. Hubbard declares: "My current billing rate for services performed in non-complex litigation is $350 per hour. This rate is based upon my education, knowledge and experience as a litigation strategists and trial lawyer, my years of practice, and my success rate." (Hubbard Decl. at 3.) Plaintiff argues the rates he seeks were awarded in similar cases in this district, citing Dodson v. Albertson's, Inc., 2008 WL 298823, at *3 (E.D. Cal. Feb. 1, 2008), a case in which these rates were awarded, and Hooper v. Calny, Inc., CIV-S-03-0167 (E.D. Cal. Apr. 25, 2005), a case in which Plaintiff sought lower rates ($265 for Lynn Hubbard, $175 for Scott Hubbard, and $75 for paralegals), and in which the court awarded what it found to be reasonable rates of $250 for an experienced attorney, $175 for an associate attorney, and $75 for paralegals. Plaintiff argues that the higher rates awarded in Dodson should be awarded in this action "based on [his attorneys'] years of experience, credentials and skill in a given area of law." (Mot. at 3:23-24.) Defendant counters these hourly rates are "excessive" and should be reduced to $250 per hour for Lynn Hubbard, $150 per hour for the associate attorneys, and $75 per hour for paralegals. (Opp'n at 11:22-25.)
Plaintiff also argued for the first time in his reply brief "there is another reason that the requested hourly rate is reasonable. Simply put, plaintiff's counsel is asking this court `for a raise,' as district judges have awarded the same hourly rate in this district since 1998, and it's time for a cost-of-living raise to match inflation." (Reply at 4:4-9 (citations omitted).) This new argument will not be addressed since "[t]he district court need not consider arguments raised for the first time in a reply brief." Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007).
"[B]illing rates `should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity.'" Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (quoting Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992)). "Reasonable fees are thus to be calculated according to the prevailing market rates in the relevant community, with close attention paid to the fees charged by lawyers of reasonably comparable skill, experience, and reputation." Id. at 1545-46 (internal quotations and citations omitted).
The fee applicant has the burden of "producing satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar legal services by lawyers. A rate determined in this way is normally deemed to be reasonable, and is referred to-for convenience-as the prevailing rate." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984).
In this case, Plaintiff has failed to produce satisfactory evidence that the rates he requests are in line with those prevailing in the community for similar legal services by lawyers. All that Plaintiff has produced is an affidavit from one of his attorneys in which the rates Plaintiff now requests are included (this affidavit says nothing about the prevailing market rate in the community), and two cases: one in which the court approved the requested rates, and the other in which the court found lower rates to be the prevailing rates in the community. Plaintiff's mere citation to Dodson, without any other supporting documentation showing that the rates sought are the prevailing rates in the community, is insufficient to satisfy his burden. Since Hooper discusses the prevailing rates in the community, those rates will be awarded. Therefore, Plaintiff is awarded rates of $250 per hour for Lynn Hubbard, $175 per hour for the associate attorneys, and $75 per hour for paralegals.
II. Hours Reasonably Expended
Plaintiff requests $15,829.53 in attorneys' fees and costs for 66.0 hours expended on this case. (Mot. at 1:11-13; 3:26-27.) Defendant challenges the reasonableness of the time billed by Plaintiff's attorneys for the following reasons: (1) the Kerr factors favor an adjustment of the lodestar calculation; (2) Plaintiff failed to split time between the two Defendants; (3) Lynn Hubbard should have used his associate attorneys to perform more of the "legwork"; (4) Plaintiff improperly billed clerical work to paralegals; and (5) some of the specific time entries should be reduced or eliminated as excessive. (See Opp'n at 7:13-17:0.) Plaintiff rejoins that 66 hours of work, "for a case that lasted over a year [is] an extremely modest and reasonable amount of work for this case." (Reply at 3:18-21.)
The $15,829.43 figure includes $15,451.24 for attorneys fees and $378.18 for litigation expenses and costs. (Mot. at 4.)
A. Splitting Fees Between Defendants
Defendant argues it "should not be held responsible for the fees and expenses Plaintiff incurred with respect to [E. Bidwell Glenn LLC]" and requests fees and expenses to be apportioned equally between the two defendants. (Opp'n at 10:4-5, 10:15.) Plaintiff rejoins that Defendant "provides absolutely no legal support whatsoever for this novel request" and the Defendants can indemnify each other if necessary. (Reply at 8:11-22.)
Defendant Thrifty Payless "is not required to pay [Plaintiff] for expenses that are related exclusively to claims against" Defendant E. Bidwell Glenn LLC. Martinez v. Longs Drug Stores, Inc., 2005 WL 3287233, *2 (E.D. Cal. Nov. 28, 2005). A review of Plaintiff's counsel's time entries reveals that time spent for a conflict check and researching the proper defendants to name in the lawsuit should be reduced by 2.15 hours as that amount of time was related exclusively to Defendant E. Bidwell Glenn LLC. The record reveals, however, that the remainder of fees Plaintiff seeks are for "expenses that he would have incurred even if [Thrifty] had been the sole defendant." Martinez v. Longs Drug Stores, 2005 WL 3287233, at *2 (denying request to reduce by 50% fees generated while dismissed defendant was still a party to the action). Accordingly, the request for a further apportionment of fees between the two Defendants is denied.
Defendant argues that a conflict check is not a billable task, citing Eiden v. Thrifty Payless, Inc., 407 F. Supp. 2d 1165, 1170 (E.D. Cal. 2005) ("The court . . . was not persuaded that Lynn Hubbard routinely bills paying clients and collects from them for time spent on conflict checks." (internal quotations omitted)). However, because a conflict check "is `necessary and directly related to litigation,' it is recoverable as attorneys' fees."Dodson v. Albertson's, Inc., 2008 WL 298823, at *3 n. 2 (E.D. Cal. Feb. 1, 2008) (quoting Michigan v. U.S. Envtl. Prot. Agency, 254 F.3d 1087, 1093 (D.C. Cir. 2001) (awarding fees for conflict checks)).
B. Use of Associates to Perform Legwork
C. Billing of Clerical Time
Chapman v. Pier 1 Imports, Inc. 2007 WL 2462084 See Martinez v. Longs Drug Stores, Inc.2005 WL 3287233Martinez v. Thrifty Payless, Inc. 2006 WL 279309
D. Specific Time Entries Should be Reduced or Eliminated
Defendant argues Mr. Hubbard and his staff over-billed and improperly billed for many tasks and makes detailed objections based largely on the assertion that Plaintiff's counsel billed for creating boilerplate documents used in prior cases. Based on a review of the record, the following reductions are made: preparation of fee agreement and letter to client regarding fee agreement reduced to .4 hours, see Eiden, 407 F. Supp. 2d at 1170 (making same reduction); acceptance to offer of judgment reduced to .2 hours, see Dodson, 2008 WL 298823, at *3 n. 3 (making same reduction); preparation of bill of costs reduced to .3 hours, see id. (making similar reduction); preparation boilerplate motion for attorney fees reduced to 1.0 hour, see Martinez v. Longs Drug Stores, Inc., 2005 WL 3287233, at *8 (making same reduction); preparation of request for admissions reduced to .5 hours, propounded interrogatories reduced to .6 hours, request for documents reduced to .5 hours, draft demand letter reduced to .4 hours, see Eiden, 407 F. Supp. 2d at 1170 (making same or similar reductions); phone calls with Arnold's office and McCleary reduced to a total of .3 hours, (see McCleary Decl. ¶ 2) (declaring calls lasted no more than 4 minutes), see Dodson, 2008 WL 298823, at *3 n. 4 (making same reduction). Additional reductions for excessive time are also made for reviewing short letters, meeting with staff regarding initial disclosures, and for "gathering exhibits" for the attorney's fee motion when only one exhibit was filed. Defendant's additional requests for reductions are denied as the time billed is reasonable.
III. Kerr Factor Adjustment
Defendant argues that the Kerr factors require a downward adjustment in the fee award for this action. (Opp'n at 7-9.) "Reviewing the Kerr factors not already addressed in arriving at the lodestar figure, the court finds that this is not a rare or exceptional case. Accordingly, no upward or downward adjustment to the lodestar figure is appropriate." Dodson, 2008 WL 298823, at *4.
IV. Litigation Expenses and Costs
Plaintiff requests $378.18 in litigation expenses and costs, which comprises a $350.00 filing fee, $15.00 for service of process, and $13.18 for overnight delivery of a discovery request. (Mot. at 4:19-20; Hubbard Decl., Ex. A.) However, Plaintiff already claimed $365.00 of these costs in his Bill of Costs. (Opp'n, Ex. 12.) Therefore, Plaintiff is awarded $13.18 for litigation expenses and costs.
SUMMARY
For the stated reasons, Plaintiff is awarded $8,075.68 in attorney's fees and costs. This award is based on the following calculation: Lynn Hubbard 20.65 hours @ $250/hr = $5,162.50 Lynn Hubbard 12.00 hours @ $125/hr = $1,500.00 Scottlynn Hubbard 2.10 hours @ $175/hr = $367.50 Mark Emmett 2.85 hours @ $175/hr = $498.75 Mark Emmett 4.00 hours @ $87.50/hr = $350.00 Paralegals 2.45 hours @ $75/hr = $183.75 Litigation expenses and costs = $13.18 Total attorneys fees and costs = $8,075.68 IT IS SO ORDERED.