Opinion
CV-00-608-ST
December 12, 2000
FINDINGS AND INTRODUCTION
Plaintiff, Masonry Industry Trust Administration, Inc. ("Masonry Trust"), moves for an award of $990.00 in attorney fees and $218.00 in costs pursuant to 29 U.S.C. § 1132(g)(2)(D). Masonry Trust is the administrative agent for several trusts described in the Complaint ("Funds"). It brought this action on behalf of the Funds created pursuant to Section 302(c) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186(c) and governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Masonry Trust alleges that defendant Pro-Build, Inc. ("Pro-Build") failed to make obligatory contributions to the Funds. This court has jurisdiction over the LMRA and ERISA claims pursuant to 28 U.S.C. § 1331.
By Order dated August 1, 2000, this court granted Masonry Trust's Motion for Entry of Default against Pro-Build (docket #6). On October 25, 2000, Judge Robert E. Jones awarded Masonry Trust a judgment against Pro-Build and ordered Pro-Build to pay damages (docket #9). Now before this court is Masonry Trust's Motion, Affidavit, and Statement for Attorney Fees and Costs (docket #10). For the reasons set forth below, Masonry Trust's motion should be granted in part and denied in part.
DISCUSSION
Masonry Trust argues that it is entitled to attorney fees and costs pursuant to the Trust Agreements and ERISA's attorney fees provision, 29 U.S.C. § 1132(g)(2)(D). Pro-Build has not responded to Masonry Trust's motion.
I. Entitlement to Attorney Fees and Costs
The applicable ERISA attorney fee provision provides in part as follows:
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.29 U.S.C. § 1132(g)(2).
"Under § 1132(g)(2), trust funds that successfully sue for unpaid contributions `shall' be awarded reasonable attorney's fees. This provision is mandatory." Operating Engineers Pension Trust v. Cecil Backhoe Serv., Inc., 795 F.2d 1501, 1508 (9th Cir 1986), citing Operating Engineers Pension Trust v. Reed, 726 F.2d 513, 514 (9th Cir 1984). Masonry Trust, having received a judgment in its favor against Pro-Build, is thus entitled to its reasonable attorney fees and costs.
II. Amount of Award
Having determined that Masonry Trust is entitled to an award of fees and costs, this court must determine whether the requested fees and costs are reasonable.
A. Attorney Fees
The starting point for determining a reasonable attorney fee award is calculating the "`lodestar' figure, which is the number of hours reasonably expended multiplied by a reasonable hourly rate." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir 1993). The lodestar figure is presumptively reasonable. Id. Additionally, the petitioner seeking attorney's fees bears the burden of supporting the requested number of hours with documentary evidence. Id. "[T]he district court [is] required to independently review plaintiffs' fee request even absent defense objection. . . ." Id at 1401.
In calculating the lodestar, this court has considered those factors identified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir 1975), cert denied, 425 U.S. 951 (1976). These factors include: (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. Id.
Masonry Trust requests attorney fees in the amount of $330.00 for 3.0 hours as follows: 1.4 hours expended in early negotiations; .9 hours to prepare the Complaint; and .7 hours to prepare the default documents. Masonry Trust also requests an additional $110.00 for one hour spent preparing the request for attorney fees and cost bill.
Having considered the various Kerr factors and Masonry Trust's Attorney Fees request, this court finds the request to be eminently reasonable. Masonry Trust's hourly rate is reasonable for this nature of work, and the hours expended on this case are also reasonable. Therefore, Masonry Trust should be awarded $440.00 attorney fees.
Masonry Trust also requests an additional $550.00 for 5.0 hours for the anticipated cost of collecting payment on this judgment. This request should be deferred, however, because collecting the judgment may not require 5.0 hours of work, and may require many more. Thus, Masonry Trust's request for advance collection costs should be denied with leave to renew when Masonry Trust is able to collect its judgment.
B. Costs
Masonry Trust moves for $218.00 in costs for Clerk's fees and service of the summons and subpoena. These costs are appropriate and necessarily incurred and should be granted.
RECOMMENDATION
Based on the foregoing, Masonry Trust's Motion, Affidavit, and Statement for Attorney Fees and Costs (docket #10) should be GRANTED IN PART and DENIED IN PART. Masonry Trust should be awarded $440.00 in attorney fees and $218.00 in costs and the additional request for $550.00 in attorney fees to collect the judgment should be denied as premature with leave to renew.
SCHEDULING ORDER
Objections to these Findings and Recommendation, if any, are due January 2, 2001. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than January 19, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.