Opinion
3:22-mc-00568-YY
02-27-2023
SHEA TRAINOR, Plaintiff, v. LUMENTRADES FINANCIAL INCORPORATED, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
On January 9, 2023, the Court held defendant Lumentrades Financial Incorporated in contempt and allowed plaintiff to file a motion for attorney's fees. ECF 20. Plaintiff has filed a Motion for Attorney's Fees and Costs (ECF 21), which should be granted in the amount of $4,950 in attorney's fees and $609 in costs.
I. Law Regarding Attorney's Fees-Reasonableness and Plaintiff's Burden
“The customary method of determining fees . . . is known as the lodestar method.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), opinion amended on denial of reh'g, 108 F.3d 981 (9th Cir. 1997); see also Perdue v. Kenny A., 559 U.S. 542, 551 (2010) (holding “the lodestar approach” is “the guiding light” when determining reasonable fees). The “lodestar” is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. McGrath v. Cnty. of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). The court excludes hours “that are excessive, redundant, or otherwise unnecessary.” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
“[T]here is a strong presumption that the lodestar is sufficient.” Perdue, 559 U.S. at 556. The court may “assess whether the presumptively reasonable lodestar figure should be adjusted on the basis of Kerr factors not already subsumed in the initial calculation.” McGrath, 67 F.3d 248 at 252: 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) any 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 v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on other grounds, City of Burlington v. Dague, 505 U.S. 557 (1992).
Plaintiff, as the party seeking fees, bears “the burden of documenting the appropriate hours expended in the litigation, and [is] required to submit evidence in support of those hours worked.” United Steelworkers of Am. v. Ret. Income Plan For Hourly-rated Emps. Of Asarco,Inc., 512 F.3d 555, 565 (9th Cir. 2008) (quotations omitted). In determining the “reasonable hourly rate,” the court looks to the “prevailing market rates in the relevant community.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013) (citations and internal quotation marks omitted). The relevant community “is one in which the district court sits.” Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991). This court uses the most recent Oregon State Bar Economic Survey as a benchmark for comparing an attorney's billable rate with the fee customarily charged in the locality. Precision Seed Cleaners v. Country Mut. Ins.Co., 976 F.Supp.2d 1228, 1244 (D. Or. 2013); see also Copeland-Turner v. Wells Fargo Bank, N.A., No. 11-cv-37-HZ, 2012 WL 92957, at *2 (D. Or. Jan. 11, 2012) (same). The Economic Survey sets forth rates charged by Oregon attorneys in the relevant year, including rates specific to communities such as the Portland area.
II. Requested Attorney's Fees
In support of the motion, plaintiff has submitted invoices showing 19.8 hours billed at $250 per hour.
(Table Omitted)
Plaintiff's attorney, Cassandra Kirsch, is a Colorado attorney who was admitted pro hac vice in this court for the purpose of filing a motion to enforce a subpoena against defendant. See LR 45-1(b). According to the Colorado Supreme Court's website, Kirsch was admitted to practice in Colorado in November 2013. Kirsch's professional website indicates she is a sole practitioner who “focuses on Internet law, privacy, defamation, online harassment, computer fraud and crime, and cyber bullying issues.” Kirsch's $250 hourly rate is within the range of Portland attorneys with ten years of experience who represent plaintiffs in civil litigation (nonpersonal injury cases). See OREGON STATE BAR, 2017 ECONOMIC SURVEY 39 TBL. 36, 41 TBL. 37 (2017).
https://coloradosupremecourt.com/Search/Attinfo.asp?Regnum=46502.
https://www.cmklawoffice.com/our-firm.html.
https://www.osbar.org/docs/resources/Econsurveys/17EconomicSurvey.pdf.
The 19.8 hours of time Kirsch spent conducting legal research, drafting motions, and preparing for the show cause hearing is reasonable. The hours are not “excessive, redundant, or otherwise unnecessary.” McCown, 565 F.3d at 1102. Because the presumptively reasonable lodestar amount does not have to adjusted, the court is not required to apply the Kerr factors. Plaintiff is entitled to reasonable attorney's fees of $4,950 (19.8 x $250).
Plaintiff's invoices yield a different amount-$5,000. However, some entries were miscalculated:
• The September 17, 2022 entry indicates .5 hours were spent but only $50 (rather than $125) is indicated.
• The September 28, 2022 entry indicates that 2.3 hours were spent, but $650 (rather than $575) is indicated.
• The November 14, 2022 entry indicates that 1.4 hours were spent, but $400 (rather than $350) is indicated.
However, again, when the 19.8 hours that were expended is multiplied by $250, the total is $4,950. Thus, plaintiff is entitled to $4,950 in attorney's fees, not $5,000.
III. Requested Costs
Plaintiff seeks the following costs:
(Table Omitted)
Filing fees are “fees of the clerk” and allowable costs under 28 U.S.C. § 1920(1). Also, “private process servers' fees are properly taxed as costs.” Alflex Corp. v. Underwriters Lab'ys,Inc., 914 F.2d 175, 178 (9th Cir. 1990). However, “§ 1920(1) does not allow for an award of pro hac vice fees as taxable costs.” Kalitta Air L.L.C. v. Cent. Texas Airborne Sys. Inc., 741 F.3d 955, 958 (9th Cir. 2013). Therefore, plaintiff is entitled to $609 in costs.
RECOMMENDATIONS
Plaintiff's Motion for Attorney's Fees and Costs (ECF 21) should be granted in the amount of $4,950 in attorney's fees and $609 in costs for a total of $5,559.
By separate order, the court is directing the Clerk of the Court to mail a copy of these Findings and Recommendations to defendant's registered agent. The court is not ordering a copy to be mailed to defendant's 1455 N.W. Irving Street office address because the U.S. Marshals Service attempted service at that location but “[n]o company exists at the . . . address,” ECF 18, and when the Court previously sent mail to that address, it was returned. ECF 19.
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, March 20, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.