Opinion
CV-22-00304-PHX-ASB
10-10-2023
Alphonso McDuffy, Plaintiff, v. Tow Mate Towing, LLC, et al., Defendants.
TO 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 Attorney's Fees (Doc. 40).
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. 41). That Report and Recommendation was adopted on August 9, 2023, when this Court granted Plaintiff's Motion for Default Judgment (Doc. 37); awarded statutory damages in the amount of $8,340.00, plus post-judgment interest, to Alphonso McDuffy; 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. 42.) 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 $8,340.00 was awarded against Tow Mate Towing, LLC, and $7,724.40 (of the $8,340.00) was awarded against Defendants Tow Mate Towing, LLC, Michael Butler, and Jane Doe Butler, jointly and severally. (Doc. 42.)
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).
“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)).
Here, Plaintiff's counsel each seeks fees at an hourly rate of $395.00. (Doc. 40 at 5.) In support of the requested amount, counsel provides the Court with various fee orders from this and other district courts. Among those orders is a 2022 decision in a FLSA default judgment case very similar to the case at bar. (Doc. 40-4) (Perez v. RS Payroll Servs., LLC, et al., No. CV 22-00027-PHX-SMM (MHB), ECF No. 16 (D. Ariz. Apr. 12, 2022)). In that matter, this Court considered the same counsel's request for $378.75 and determined, after surveying the cases, that “the middle of the two extremes awarded in Grabda ($325) and Mayweather ($378.75) [was] reasonable: $350 per hour.” (Id. at 4.) Based on the Court's review of recent cases in this District and orders provided by Plaintiff, the Court continues to find that an hourly rate of $350.00 is reasonable.
Counsel seek fees for 19.1 hours expended by Christopher Bendau and 12.5 hours expended by Clifford Bendau, II. (Doc. 40 at 7.) Counsel aver that the time (a total of 31.6 hours) “was necessary to set up the case file, examine the facts, research the law, develop the case, communicate with Plaintiff, draft and file a complaint, engage with Defense counsel to draft and file the joint case management report, draft and serve initial disclosures, draft and serve discovery requests, move to have Defendants' Answer stricken, draft and file a motion for default judgment, and prepare this motion for attorney's fees and costs.” (Id. at 8.) Counsel note that Defendants were engaged initially in this case but failed to participate after defense counsel's withdrawal. (Id.)
The Court has reviewed the Itemization of Attorney's Fees and Costs submitted as Exhibit J. (Doc. 40-10.) 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 and determined the following tasks constitute clerical or secretarial tasks for which attorney's fees should not be awarded:
• As to Christopher Bendau: Travel to courthouse to file magistrate judge election form, told need physical signatures, not electronic (.7), email to T. Foster re physical signature on form (.1), drive to T. Foster office and obtain signature (.5), drive back to courthouse and file form with physical signatures (.5), email filed documents to chambers (.1). The total for clerical or secretarial tasks disallowed as to this attorney is 1.9 hours (.7 + .1 + .5 + .5 + .1).
• As to Clifford Bendau, II: Send representation agreement (.1), Receive representation agreement, set up file (.2), Finalize, file complaint (.2), Send documents to process server (.1), File service executed (.1), File application for entry of default (. 1). The total for clerical or secretarial tasks disallowed as to this
attorney is .8 hours (.1 + .2 + .2 + .1 + .1 + .1).
The Court further finds vague entries labeled “Email thread with process server” by Clifford Bendau, II fail to fully comply with LR Civ 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 for counsel's reference. For example, for a telephone conference, counsel must “identify all participants and the reason for the telephone call.” Due to potential privilege issues, the Court will not question the vague entries of “Communication with client re case status.” However, 11 vague entries of “Email thread with process server,” without any further explanation as required by Rule 54.2(e)(2), are deficient and do not support an award of fees. Thus, the 11 entries labeled “Email thread with process server” are excluded, for a total of 1.6 hours (.1 + .1 + .2 + .3 + .1 + .1 + .1 + .2 + .1 + .1 +.2).
Therefore, of the 19.1 hours billed by Christopher Bendau, the Court excludes 1.9 hours, and of the 12.5 hours billed by Clifford Bendau, II, the Court excludes 2.4 hours (.8 + 1.6). The resulting lodestar amount is therefore $9,555.00, which represents 17.2 hours for Christopher Bendau + 10.1 hours for Clifford Bendau, II 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 briefly participated. Plaintiff's counsel did not have to conduct much discovery, and there were no complex or significantly contested issues. After considering the Kerr factors, the Court finds no reason to adjust the lodestar.
In addition to fees, Plaintiff seeks costs totaling $824.00, as well as $2,000.00 in “anticipated costs of collecting on the anticipated forthcoming judgment.” (Doc. 40 at 14.) 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 $422.00 in service fees, for a sum of $824.00. (Docs. 40-10, 40-11.) 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. 40 at 16, 40-13, 40-14, 40-15) (Davis v. Shri Hari Hotels, LLC, et al., No. 2:22-cv-00756-PHX-SPL, at Doc. 20, p. 4 (D. Ariz. Aug. 24. 2022); Wade v. Shri Hari Hotels, LLC, et al., No. 2:22-cv-00560-JJT, at Doc. 22, p. 3 (D. Ariz. Jan. 18, 2023); Cranston v. Ocean Blue Caribbean Restaurant and Bar Corp., No. 2:22-cv-01924-JJT, at Doc. 24, p. 3-4 (D. Ariz. June 16, 2023); and Export Dev. Canada v. Patterson, Inc., 2008 WL 5205199, at *1 (D. Or. Dec. 11, 2008)). 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 post-judgment 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 v. RS Payroll Servs., LLC, et al., No. CV 22-00027-PHX-SMM (MHB), ECF No. 16 (D. Ariz. Apr. 12, 2022)). 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 v. RS Payroll Servs., LLC, et al., No. CV 22-00027-PHX-SMm (MHB), ECF No. 15 at 13.
In sum, the Court will recommend an award of $9,555.00 in fees and $824.00 in costs be awarded to Plaintiff.
C. Conclusion
For the foregoing reasons, IT IS THEREFORE RECOMMENDED:
1. That Plaintiff's Motion for Attorney's Fees (Doc. 40) be granted; and
2. That the Court award Plaintiff $9,555.00 in attorney's fees and $824.00 in costs, for a total of $10,379.00. This award excludes a total of 4.3 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. 42.
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.