Opinion
CV 23-00443 PHX CDB
01-17-2024
Tillman Robinson, Plaintiff, v. Beyond Food LLC, Santiago Cota, Jane Doe Cota, Defendants.
TO THE HONORABLE STEPHEN M. McNAMEE:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
Plaintiff has consented to the exercise of magistrate judge jurisdiction over this matter. (ECF No. 8). No Defendant has appeared or consented to the exercise of magistrate judge jurisdiction. On December 6, 2023, the Court adopted a Report and Recommendation and entered judgment against Defendant Beyond Food LLC in the amount of $1,944. (ECF No. 18).
Before the Court is Plaintiff's motion for an award of attorney's fees. (ECF No. 20). Plaintiff's counsel seeks an award of $8,797.40, which includes $6,319 in fees (14.2 hours at $445 per hour), $478.40 in “actual litigation expenses,” and $2,000 in anticipated costs and fees to be incurred in collecting the judgment and the awarded fees and costs. (ECF No. 20).
Plaintiff filed a complaint on March 14, 2023, alleging Defendants violated the Fair Labor Standards Act, the Arizona Minimum Wage Act, and the Arizona Wage Act, by failing to pay him wages for his last two weeks of work at “Comicx,” a restaurant and comic book store doing business in Maricopa County, Arizona. Plaintiff sought wages in the amount of Arizona's higher minimum wage, rather than the lower federal minimum wage. Plaintiff sought an award of treble his actual damages, pursuant to Arizona law, rather than pursuant to the federal double-damages provision. Plaintiff served Defendant Beyond Food LLC through its statutory agent on March 22, 2023. (ECF No. 10). Defendant Beyond Food LLC did not answer or otherwise respond to the Complaint. Plaintiff moved for the entry of default against Defendant Beyond Food LLC on April 25, 2023 (ECF No. 11), and the Clerk of the Court entered the default of Defendant Beyond Food LLC on April 25, 2023 (ECF No. 12).
Plaintiff did not prosecute this matter between April 25, 2023, and October 17, 2023. An order to show cause issued October 17, 2023, regarding Plaintiff's failure to serve Defendants Santiago and Jane Doe Cota and Plaintiff's failure to prosecute his claims for six months. (ECF No. 13). On October 19, 2023, Plaintiff noticed the voluntary dismissal of Defendants Santiago Cota and Jane Doe Cota pursuant to Rule 41 of the Federal Rules of Civil Procedure (ECF No. 14), and moved for judgment by default with regard to Defendant Beyond Food LLC (hereinafter “Defendant”) (ECF No. 15). In a Report and Recommendation adopted December 6, 2023, to which Plaintiff filed no objections, it was recommended that Plaintiff be awarded an amount equal to twice, rather than treble, his actual alleged damages; the Report and Recommendation noted Defendant had proffered Plaintiff a check for his purportedly unpaid wages but Plaintiff failed to retrieve the check for a period of six months, at which time the check had expired. (ECF No. 17). It was also noted that Plaintiff provided no documents, such as a W-2 or paycheck stubs, establishing he had been employed by Defendant. (Id.). Judgment was entered against Defendant on December 6, 2023. (ECF No. 19).
An award of attorney fees to the prevailing party in an FLSA suit is mandatory. See 29 U.S.C. § 216(b). Section 216(b) provides that an award of attorney fees “shall” be made to a successful plaintiff. However, although “[t]he award of an attorney's fee is mandatory,” “the amount of the award is within the discretion of the court.” Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 1971) (citation omitted). To determine a reasonable fee award under FLSA, the Court uses the lodestar method. See Gary v. Carbon Cycle Ariz. LLC, 398 F.Supp.3d 468, 479-80 (D. Ariz. 2019); Tallman v. CPS Sec. (USA), Inc., 23 F.Supp.3d 1249, 1256 (D. Nev. 2014). This method provides for calculating the amount of the award by multiplying the number of hours the prevailing party's counsel reasonably expended on the litigation by a reasonable hourly rate. See, e.g., Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), citing McGrath v. County of Nev., 67 F.3d 248, 252 (9th Cir. 1995).
The Ninth Circuit Court of Appeals has applied the factors stated in Hensley v. Eckerhart, 461 U.S. 424 (1983) in FLSA cases. See, e.g., Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436, 440-41 (9th Cir. 1983). Other factors may be considered in the Court's exercise of its discretion in determining the amount of fees to be awarded. See Hensley, 461 U.S. at 434 n.9. The Court may adjust the lodestar amount to account for the factors specified in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). See, e.g., Gary, 398 F.Supp.3d at 485. Those 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.Kerr, 526 F.2d at 70, cited in Finton v. Cleveland Indians Baseball Co. LLC, 2022 WL 2665927, at *2 (D. Ariz. July 11, 2022). The Court may also consider the factors listed in Rule 54.2(c)(3) of the Local Rules of Civil Procedure when determining the reasonableness of a fee request.
A party seeking attorney's fees bears the burden of “submitting evidence of the hours worked and the rate paid,” as well as proving those rates are “in line with the prevailing market rate of the relevant communityCarson v. Billings Police Dep t, 470 F.3d 889, 891 (9th Cir. 2006) (emphasis added), cited in Gary, 398 F.Supp.3d at 479-80. Generally, “the relevant community 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). Attorneys' fees should not be awarded for the performance of administrative tasks which could and should be performed by secretarial or paralegal staff, or subsumed in firm overhead, such as filing, document organization, and tasks regarding a fee agreement. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (explaining that “purely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate, regardless of who performs them”); Gary, 398 F.Supp.3d at 487. Additionally, the court may decline to award fees for attorney time associated with defendants who were voluntarily dismissed by the plaintiff. Gary, 398 F.Supp.3d at 489, citing Cataphora Inc. v. Parker, 848 F.Supp.2d 1064, 1070 (N.D. Cal. 2012).
Counsel seeks compensation for 14.2 hours of work at a rate of $445 per hour. In several orders issued in separate, similar cases in the last year, the District of Arizona has declined to calculate Plaintiff's counsel's fees using the hourly fee sought by counsel. In Vazquez v. Johnson, counsel sought an award of fees at the hourly rate of $445, and the court awarded fees at an hourly rate of $378.75. See 2023 WL 4205126, at *2 (D. Ariz. June 27, 2023). In Jimenez v. Terrific Tree Trimmer, LLC, the court allowed counsel an hourly fee of $350 per hour. See 2023 WL 4452077, at *2 (D. Ariz. July 11, 2023). In Aguirre v. Custom Image Pros LLC, counsel was awarded fees at an hourly rate of $395. See 2023 WL 5932805, at *2-3 (D. Ariz. Sept. 12, 2023). In McDuffy v. Tow Mate Towing, LLC, the Court declined to award fees at an hourly rate of $395, but “[b]ased on the Court's review of recent cases in this District and orders provided by Plaintiff,” found an hourly rate of $350 per hour was reasonable. 2023 WL 7135014, at *2 (D. Ariz. Oct. 10, 2023), report and recommendation adopted, 2023 WL 7128430 (D. Ariz. Oct. 30, 2023). In Shorty v. Day and Night Medical Trans, Incorporated, counsel sought an hourly rate of $445 and the court allowed an hourly rate of $350. See 2023 WL 9101629, at *2, report and recommendation adopted, 2024 WL 50124 (D. Ariz. Jan. 4, 2024), citing, e.g., Perez v. RS Payroll Servs., LLC, CV 22-00027-PHX-SMM (MHB). Accordingly, awarding fees at an hourly rate of $400, slightly higher than previously awarded, would be reasonable and in accordance with prior decisions of the District of Arizona bench.
In this matter, counsel obtained a judgment of $1944, less than the sought-after award; this was due, in part, to the fact that other than Plaintiff's sworn statement Plaintiff provided no evidence that he had ever been employed by Defendant. It is also noted that the fee agreement provided counsel's fee from Plaintiff would be forty percent of the total recovery, and counsel now seeks an award of fees and costs from Defendant in the amount of $6,319, more than three times Plaintiff's damage award.
With regard to the number of hours reasonably expended by counsel on this case, counsel asserts the case required 14.2 hours of an attorney's time. Upon review of counsel's time sheet, it appears counsel billed for clerical and administrative tasks, identical to those not recompensed by the District of Arizona in other cases. The District of Arizona has previously recognized tasks billed by Plaintiff's counsel in similar cases to be clerical in nature, including sending and receiving a representation agreement, setting up files, filing court documents, sending documents to process servers and filing proofs of service. See, e.g., Aguirre, 2023 WL 5932805, at *; Jimenez, 2023 WL 4452077 at *2; Vazquez, 2023 WL 4205126, at *2; Stamper v. Freebird Logistics Inc., 2022 WL 4448457 at *2-3 (D. Ariz. Sept. 23, 2022). In McDuffy, the court deducted from the award billing for: obtaining the client's signature on the magistrate judge consent form; sending the representation agreement to the client and receiving the representation agreement; setting up the client file; filing the complaint; sending documents to a process server and filing the return of service as executed; and for filing the application for the entry of default. See 2023 WL 7135014, at *2-3. The Court also denied compensation for these and other similar tasks in Shorty. See 2023 WL 9101629, at *2-4.
Accordingly, counsel's billed hours in this matter will be reduced by 2.2 hours, the amount of time charged for the following:
0.2 hours billed on March 6, 2023, for “Send representation agreement,” “Receive representation agreement, set up file;”
0.1 hours billed on March 9, 2023, for “Send complaint to client for review;”
0.2 hours billed on March 14, 2023, for “[f]inalize, file complaint;”
0.2 hours on March 20, 2023, for “[s]end documents to process server;”
0.1 hours on March 20, 2023, for “Continue discussing case with process server;”
0.1 hours on March 22, 2023, for “[c]ommunicate with process server re service executed;”
0.1 hours on March 29, 2023, for “Review Order to Show Cause”
0.2 hours billed on March 31, 2023, for “Draft, file Magistrate Consent Form.” The form is provided by the Court and need not be drafted by counsel, but instead only signed by the party, and the filing of the form is a clerical task;
0.1 hours on April 3, 2023, for “Review Agreement to Mag. Jurisdiction, Order Vacating hearing;”
0.1 hours on April 4, 2023, for “File service executed;”
0.1 of the 0.5 hours billed on April 25, 2023, for “Draft, file Application for Entry of Default,” as filing is a clerical task;
0.1 hours billed on October 18, 2023, for “Send, [receive] signed declaration from client;”
0.1 of the 0.3 hours billed on October 19, 2023, for “Finalize, file motion for default judgment;
0.5 hours billed on October 24, 2023, for “Draft, file Response to Order to Show Cause;”
All of the documents signed by Plaintiff were electronically signed; it is logical to presume that documents sent to and received from Plaintiff were sent electronically, rather than sent by regular mail.
The only Defendant served in this matter was Beyond Food LLC; service was accomplished by service on the statutory agent of the CT Corporation System. (ECF No. 10).
The Order to Show Cause was necessitated by the failure to file the consent form within two weeks of the case being assigned; counsel is thoroughly familiar with the magistrate judge consent process and should be, by now, thoroughly familiar with the deadlines.
The prevailing party is generally “entitled to recover a reasonable attorneys' fee for every item of service which, at the time rendered, would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest.” Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982). The hours charged for responding to orders to show cause will not be allowed because the orders to show cause were necessitated by counsel's inaction. Identical requests were denied in Shorty, 2023 WL 9101629, at *3-4 (D. Ariz. Dec. 15, 2023). Because the time spent responding to the orders to show cause arose from counsel's failure to properly and timely prosecute Plaintiff's claims, i.e., to timely file the consent to magistrate judge jurisdiction and in this matter to either serve Defendants Cota or file a notice of dismissal of these Defendants prior to service, or to prosecute the claims against Beyond Food LLC for a period of six months, necessitating the expenditure of judicial resources in prompting counsel to proceed, fees for the time spent on these issues should not be charged to Defendant.
Counsel now seeks reimbursement for fees associated with reviewing and responding to that Order, as well as reviewing the Court's order vacating the show cause hearing. The Court can find no good cause to grant a request for fees that were entirely unnecessary, and which were incurred only because counsel failed to comply with the Local Rules. Second, undersigned issued an Order to Show Cause as to why the matter should not be dismissed for failure to prosecute. (Doc. 16.) The second Order to Show Cause was issued because Plaintiff had not filed anything in the case for months after default was entered. (Id.) Now, in the instant Motion, counsel essentially seeks to be rewarded for failing to diligently prosecute the matter, because he requests all his fees associated with having to explain to the Court why the action should not have been dismissed for failure to prosecute. In the interest of justice, the Court excludes the hours associated with reviewing and responding to each order to show cause, as well as the time spent briefly reviewing the Court's orders addressing each response. Shorty v. Day & Night Med. Trans Inc., 2023 WL 9101629, at *3-4 (D. Ariz. Dec. 15, 2023), report and recommendation adopted, 2024 WL 50124 (D. Ariz. Jan. 4, 2024).
In the motion at ECF No. 20 Plaintiff seeks an award of costs, including the cost of the filing fee and the cost of executing service on Defendant. “In federal courts, taxable costs are usually taxed by the Clerk of the Court.” Snyder v. HSBC Bank, USA, N.A., 2012 WL 3762420, at *4 (D. Ariz. Aug. 29, 2012). Rule 54.1 of the Local Rules of Civil Procedure provides:
(a) Procedure for Filing Bill of Costs. Costs shall be taxed as provided in Rule 54(d), Federal Rules of Civil Procedure. A party entitled to costs shall, within fourteen (14) days after the entry of final judgment, unless time is extended under Rule 6(b), Federal Rules of Civil Procedure, file with the Clerk of Court and serve upon all parties, a bill of costs on a form provided by the Clerk. This bill of costs shall include a memorandum of the costs and necessary disbursements, so itemized that the nature of each can be readily understood, and, where available, documentation of requested costs in all categories must be attached. The bill of costs shall be verified by a person acquainted therewith.
***
(e) Taxable items.
(1) Clerk's Fees and Service Fees. Clerk's fees (see 28 U.S.C. § 1920), and service fees, including private process servers' fees, are taxable.(emphasis added)
Plaintiff failed to file a bill of costs on the form provided by the Clerk within fourteen days after entry of judgment, as required by Rule 54.1(a). Plaintiff has provided evidence of the sought-after costs of filing the Complaint and effecting service on Defendant. (ECF No. 20-9 at 4-5). Nevertheless, Plaintiff failed to comply with the local rule by seeking an award of costs in the form prescribed by the rule, i.e., by filing with the Court and serving on Defendant the requisite information on a form provided by the Clerk of Court. See Gary, 398 F.Supp.3d at 480-81. Additionally, the time for filing the bill of costs has not been (and cannot be) “extended under Rule 6(b), Federal Rules of Civil Procedure.” LRCiv 54.1(a). “'Pursuant to federal law, taxable costs can be recovered ‘with strict compliance' to the Federal Rules of Civil Procedure Rule 54(d)(1), Local Rules of Civil Procedure Rule 54.1(a), and 28 U.S.C. section 1920.'” Gary, 398 F.Supp.3d at 481, quoting Felix v. Pic-N-Run, Inc., 2012 WL 551645, at *5 (D. Ariz. Feb. 21, 2012) (concluding defendants could not recover taxable costs where defendants failed to strictly comply with the requirement in Rule 54.1(a) that a bill of costs be filed within fourteen days after entry of judgment and where defendants had not been granted any extension to file their bill of costs). See also Colocation Am. Corp. v. Mitel Networks Corp., 2018 WL 9781176, at *1 (D. Ariz. Nov. 1, 2018); Thompson v. StreetSmarts, Inc., 2011 WL 2600744, at *14 (D. Ariz. June 30, 2011). Nonetheless, because the request for costs was timely, although not presented in the correct form, and as “the decision whether to award costs ultimately lies within the sound discretion of the district court[,]” Marx v. General Revenue Corp., 568 U.S. 371, 377 (2013), it will be recommended that the court exercise its discretion to grant Plaintiff's request for taxable costs. However, Plaintiff's counsel is advised that in the future they should strictly comply with the Local Rule 54.1 when seeking an award of costs in a civil matter.
Plaintiff's counsel also seeks $2,000 in collection costs. In Jimenez, Plaintiff's counsel sought the same amount in collection costs, but was allowed only $1000 in collection costs:
Collection costs may be awarded if they are reasonable. See Exp. Dev. Canada v. Patterson, Inc., No. 08-978-JO, 2008 WL 5205199, at *1 (D. Or. December 11, 2008) (finding the request for $5,000.00 to be excessive and awarding $2,000.00 for collection efforts); see also Barbee v. DNSPWR2 LLC, No. CV-20-08100-PCT-MTM, 2020 WL 6712308, at *2 (D. Ariz. November 16, 2020) (finding the requested $1,000.00 in collection costs is not unreasonable). In this case, an award of $1,000.00 for potential collection efforts is reasonable. . . .2023 WL 4452077, at *3.
The Defendant in this matter is a corporate entity, which is still doing business, rather than an individual who might have an easier time eluding payment of the damages and fees award. Counsel provides no estimate of fees or costs with regard to collection costs. Accordingly, an award of $1,000 for collection costs is deemed reasonable.
Therefore, IT IS RECOMMENDED that the motion for attorney fees at ECF No. 20 be granted, however that fees and costs from Defendant be awarded only as follows:
1. Attorney's fees in the amount of $4800;
2. Taxable costs in the amount of $478.40;
3. Collection costs in the amount of $1,000.
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.
Pursuant to Rule 72(b)(2), 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. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.