Opinion
CV-22-1490-PHX-DJH (JFM)
02-08-2024
Ashley Winters, Plaintiff v. City of Phoenix, et al., Defendants.
REPORT & RECOMMENDATION ON MOTION FOR FEES
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
This matter was referred to the undersigned for pretrial proceedings. On January 5, 2024, District Judge Humetewa adopted the Report & Recommendation (Doc. 85), dismissing this case for failure to prosecute, and granting Defendant his expenses, including attorney fees incurred in appearing at the associated show cause hearing. (Order 1/5/24, Doc. 87.) Defendant then filed the Motion for Fees (Doc. 88), and District Judge Humetewa referred the motion to the undersigned for preparation of a report and recommendation on the motion pursuant Local Rules of Civil Procedure 72.1 and 72.2. (Order 1/23/24, Doc. 89.)
A. DISCUSSION
Judge Humetewa has already concluded that expenses, including fees, should be awarded. Consequently, the only question is the amount to be awarded.
The motion seeks an award of $496.80, consisting of 2.3 hours in attorney time at $216 per hour.
“Reasonable attorneys' fees are generally calculated based on the traditional ‘lodestar' method. Under the lodestar method, the Court determines a reasonable fee by multiplying ‘the number of hours reasonably expended on the litigation' by ‘a reasonable hourly rate.' The lodestar figure is presumptively reasonable.” Marrocco v. Hill, 291 F.R.D. 586, 587-88 (D. Nev. 2013) (citations omitted). Although the district court has discretion in determining the amount of a fee award, the court is required to provide a concise but clear explanation of its reasons for the fee award, including at least some indication of how it arrived at the amount of compensable hours for which fees were awarded. Gates v. Deukmejian, 987 F.2d 1392, 1398-99 (9th Cir. 1992).
Reasonable Hourly Rate - In setting a reasonable hourly rate, the established standard is the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir.1986). The burden is on the fee applicant to produce satisfactory evidence that the requested rates are in line with those prevailing in the community and affidavits of the attorneys regarding prevailing fees in the community, and rate determinations in other cases are satisfactory evidence of the prevailing market rate. But additional evidence may be required. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008). Here, the Court finds the hourly rates requested for each of the attorneys are reasonable under the foregoing standards.
Hours Reasonably Expended - The reasonableness of the time expended is determined by looking at such factors as whether hours claimed are redundant (e.g. same work by different attorneys), McGrath v. County of Nevada, 67 F.3d 248, 255 (1995); the novelty and difficulty of the issues, Kerr, 526 F.2d at 70; and whether the hours expended are deemed excessive or otherwise unnecessary, Chalmers, 796 F.2d at 1210. In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended, and the hours may be reduced by the court where documentation of the hours is inadequate. Chalmers, 796 F.2d at 1210. Time spent in establishing the entitlement to and amount of the fee is compensable, to avoid diluting a fees award by refusing to compensate attorneys for the time they reasonably spent in establishing their rightful claim to the fee. Camacho, 523 F.3d at 981.
The party opposing the award bears the burden of providing specific evidence to challenge the accuracy and reasonableness of the hours charged. McGrath v. County of Nevada, 67 F.3d 248, 255 (9th Cir. 1995). Here, Plaintiff has failed to respond to the motion.
Upon review, the Court finds the requested hours reasonable, but finds a portion outside the grant made by Judge Humetwa.
Defendant has requested the following hours for attorneys Jody Corbett (JC) and Karen Stilwell (KLS):
10/23/23
KLS
Review order to show cause
0.2
10/23/23
JC
Review orders to show cause and striking
0.2
11/2/23
KLS
Review ME re hearing
0.2
11/2/23
KLS
Review MJOP and attend show cause hearing
1.0
11/2/23
JC
Appear for OSC hearing
0.3
11/3/23
KLS
Review Order post hearing and develop strategies
0.4
TOTAL
2.3
The requested hours include time before and after the hearing. Judge Humetewa granted expenses “incurred in appearing at the November 2, 2023, Show Cause Hearing (Doc. 81).” This includes only time necessary to the actual appearance, not everything associated with the order to show cause. It does, however, extend to time required to prepare for the hearing. The undersigned observes the references to the motion for judgment on the pleading. Because such motion was impacted by the impending dismissal expected from the show cause hearing, which could be anticipated to be without prejudice, the undersigned finds this time related to the appearance. The undersigned also finds that time expended by both attorneys was reasonable, especially given that duplication was limited to 0.5 hours.
Consequently, the undersigned finds that Defendant is entitled to recover all of the reported time through November 2, 2023, a total of 1.9 hours, but not the 0.4 hour on November 3, 2023.
Multipliers - In rare and exceptional cases, supported by both specific evidence on the record and detailed findings that the lodestar amount is unreasonably low or unreasonably high, the court may adjust the lodestar upwards or downwards by applying a multiplier based on additional factors not subsumed in the initial calculation. See Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.2000). The parties do not request, and the Court finds no reason to apply a multiplier.
Conclusion - Based upon the foregoing, Defendant should be awarded $408.50 (1.9 hours at $216 per hour) in attorney fees as expenses incurred in appearing at the show cause hearing.
B. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
IT IS THEREFORE RECOMMENDED Defendant's Motion for Attorney Fees (Doc. 88) be GRANTED, to the extent that Defendant be awarded $408.50 in attorney fees incurred in appearing at the show cause hearing.