Aguirre v. Custom Image Pros LLC

• Court: District Court, D. Arizona
• Decided: May 15, 2024
• Docket: 2:23-cv-00419
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Francisco Aguirre, No. CV-23-00419-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 Custom Image Pros LLC, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Attorneys’ Fees and Costs 16 (“Motion”) (Doc. 19) seeking $8,449.10 in fees and costs. 17 BACKGROUND 18 Plaintiff filed this suit for unpaid overtime wages under the Fair Labor Standards 19 Act (“FLSA”). (Doc. 1). Defendants were properly served, (Docs. 7, 8, and 14), but failed 20 to answer or otherwise participate in the action. The Court granted default judgment 21 against all Defendants in the amount of $2,908.50 and against Defendant Custom Image 22 Pros LLC in the amount of $2,341.50 (Doc. 17). 23 ATTORNEYS’ FEES 24 I. ENTITLEMENT AND ELIGIBILITY TO FEES 25 Plaintiff requests $5,651.50 in attorneys’ fees and $797.60 in costs in accordance 26 with Federal Rule of Civil Procedure 54, Local Rule of Civil Procedure 54.2, and 27 29 U.S.C. § 216(b)—the FLSA’s fee-shifting provision that “provides for attorney fees and 28 costs to a successful plaintiff.” Haworth v. State of Nev., 56 F.3d 1048, 1050 n.1 (9th Cir. 1 1995). The Court finds Plaintiff is eligible for, and entitled to, attorneys’ fees. 2 The FLSA requires courts to award reasonable attorneys’ fees to successful 3 plaintiffs. 29 U.S.C. § 216(b); see also Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 4 1971) (“[The statute] provides that an award of attorney’s fee ‘shall’ be made to the 5 successful plaintiff. The award of an attorney’s fee is mandatory.”). As the prevailing 6 party in the present FLSA action, (Doc. 17), Plaintiff is entitled to attorneys’ fees. 7 Plaintiff argues he is entitled to attorney fees incurred in preparing the Motion for 8 Attorneys’ Fees and Costs. Mot. at 4. Local Rule of Civil Procedure 54.2(c)(2) requires 9 a plaintiff claiming “entitlement to fees for preparing the motion and memorandum for 10 award of attorneys’ fees” and costs “must cite the applicable legal authority supporting” 11 the request. Plaintiff cites Gary v. Carbon Cycle Arizona LLC, 398 F. Supp. 3d 468, 479 12 (D. Ariz. 2019), as support for the proposition that a “party that is entitled to an award of 13 attorneys’ fees is also entitled to compensation for time expended on an application for 14 attorneys’ fees.” Mot. at 4. The Ninth Circuit has noted “federal courts, including our 15 own, have uniformly held that time spent in establishing the entitlement to and amount of 16 the fee is compensable.” In re Nucorp Energy, Inc., 764 F.2d 655, 659-60 (9th Cir. 1985). 17 And, more specifically, courts have awarded fees incurred in preparing fees motions in 18 other FLSA cases within the District of Arizona. See, e.g., Gary v. Carbon Cycle Arizona, 19 398 F. Supp. 3d 468. 20 The Court finds Plaintiff is entitled to recover fees, including those incurred in 21 preparing the present Motion. 22 II. REASONABLENESS OF REQUESTED AWARD 23 While the FLSA mandates an award of attorneys’ fees to a successful plaintiff, 24 29 U.S.C. § 216(b), “the amount of the award is within the discretion of the court,” Houser 25 v. Matson, 447 F.2d 860, 863 (9th Cir. 1971). Courts “employ the ‘lodestar’ method to 26 determine a reasonable attorney’s fees award.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th 27 Cir. 2016) (citing Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). Courts 28 calculate the lodestar figure by “multiplying the number of hours reasonably expended on 1 a case by a reasonable hourly rate.” Id. 2 After calculating the lodestar figure, a Court may reduce or increase the award based 3 on a variety of factors. Those factors include: (1) the time and labor required, (2) the 4 novelty and difficulty of the legal questions involved, (3) the skill required to perform the 5 legal service properly, (4) other employment precluded due to acceptance of the case, (5) 6 the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed 7 by the client or the circumstances, (8) the amount involved and the results obtained, (9) the 8 experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, 9 (11) the nature and length of the professional relationship with the client, and (12) awards 10 in similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (“Kerr 11 factors”).1 The lodestar calculation normally subsumes some of these factors such that the 12 Court need not consider them again after determining the lodestar. See Gonzalez v. City of 13 Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (identifying factors often considered when 14 calculating lodestar). 15 A. Hourly Rates 16 The first question is whether Plaintiff’s asserted rate is reasonable. “A reasonable 17 hourly rate is ordinarily the prevailing market rate in the relevant community.” Sw. Fair 18 Hous. Council v. WG Scottsdale LLC, No. 19-00180, 2022 WL 16715613 at *3 (D. Ariz. 19 Nov. 4, 2022) (citing Kelly, 822 F.3d at 1099). And “the burden is on the fee applicant to 20 produce satisfactory evidence—in addition to the attorney’s own affidavits—that the 21 requested rates are in line with those prevailing in the community for similar services by 22 lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 23 U.S. 886, 895 n.11 (1984). 24 Plaintiff’s counsel, Clifford P. Bendau II, is a managing attorney at Bendau & 25 Bendau PLLC with approximately 12 years’ experience as a litigator focusing exclusively 26 on plaintiffs’ state and federal employment wage and hour litigation, primarily under the 27 1 Local Rule 54.2 also lists factors the Court must address when determining the 28 reasonableness of the requested award. These factors are largely duplicative of the Kerr factors. 1 FLSA. Mot. at 12. Plaintiff asserts a $445 billing rate for Mr. Bendau. Id. at 4. Plaintiff 2 supports his proffered rate with an affidavit from Mr. Bendau outlining his experience and 3 stating the $445 rate is reasonable, (Doc 18-10) and a collection of rate determinations 4 regarding Mr. Bendau in other FLSA (Doc. 18-2–8). 5 In his affidavit, Mr. Bendau claims he has practiced law for over ten years and has 6 litigated more than 500 employment-related lawsuits in that time. (Doc. 18-10 at 3). In a 7 2023 FLSA case within the District of Arizona, the court approved Mr. Bendau’s $445 per 8 hour rate as reasonable. Ekstrand v. Tru Realty LLC, No. 23-cv-1416, Doc. 17 (D. Ariz. 9 Oct. 20, 2023). 10 According to Mr. Bendau, his $445 rate is commensurate with his experience level 11 and is “well within the standard hourly rates charged by other law firms in the Phoenix” 12 area. (Doc. 18-10 at 4). 13 The Court finds the prevailing rates for FLSA cases in the District of Arizona and 14 Mr. Bendau’s experience support the requested hourly rate. The Court finds the $445 15 hourly rate reasonable. 16 B. Hours Expended 17 Under the lodestar method, the prevailing party is generally entitled to recover fees 18 for “every item of service which, at the time rendered, would have been undertaken by a 19 reasonable and prudent lawyer to advance or protect his client’s interest.” Gary v. Carbon 20 Cycle Ariz. LLC, 398 F. Supp. 3d 468, 486 (D. Ariz. 2019) (quoting Twin City Sportservice 21 v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982)). Courts may “exclude 22 from this initial fee calculation hours that were not reasonably expended.” Hensley v. 23 Eckerhart, 461 U.S. 424, 433-34 (1983) (internal quotations removed); see also McKown 24 v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (“In determining the appropriate 25 number of hours to be included in a lodestar calculation, the district court should exclude 26 hours that are excessive, redundant, or otherwise unnecessary.”). 27 Plaintiff submits a log of time Mr. Bendau expended on the present case (Doc. 18-9). 28 The activity log states Mr. Bendau expended 12.7 hours in total. Id. Having carefully 1 considered the time and labor reasonably required for each task on Plaintiff’s activity log, 2 the Court finds that each of the entries are reasonable. 3 C. Lodestar Figure and Adjustment 4 Having found Plaintiff’s submitted rate and hours reasonable, the Court determines 5 the lodestar figure is $5,651.50 (12.7 hours at a rate of $445). 6 Despite a “strong assumption that the ‘lodestar’ method represents a reasonable 7 fee,” Corrales-Gonzalez v. Speed Auto Wholesalers LLC, 2023 WL 3981139, at *7 (D. 8 Ariz. June 13, 2023), the Court “has discretion to adjust the lodestar upward or downward” 9 based on the Kerr factors not subsumed in the lodestar calculation, Stetson v. Grissom, 821 10 F.3d 1157, 1166-67 (9th Cir. 2016). Courts must assess these factors and must articulate 11 “with sufficient clarity the manner in which it makes its determination.” Carter v. Caleb 12 Brett LLC, 757 F.3d 866, 869 (9th Cir. 2014). The above lodestar analysis subsumes 13 several of these factors, including the time and labor required by counsel, skill required to 14 perform the legal service properly, customary fees in similar matters, and the experience 15 and reputation of counsel. The Court considers the remaining factors here and finds none 16 justify adjusting the lodestar figure. 17 a. Preclusion of Other Employment 18 Plaintiff avers Plaintiff’s counsel “was not significantly precluded from other work 19 because of this representation.” Mot. at 9. The Court finds this factor is neutral. 20 b. Nature of Fee Arrangement 21 Plaintiff asserts he retained counsel on a contingency fee. Mot. at 9. The Court 22 finds this factor supports awarding the full lodestar amount. 23 c. Time Limitations 24 Plaintiff submits there were no time limitations imposed in this case. Mot. at 11. 25 This factor is neutral. 26 d. Results Obtained 27 “Where a plaintiff has obtained excellent results, his attorney should recover a fully 28 compensatory fee.” Hensley v. Eckerhart, 461 U.S. 424, 435-36 (1983). Plaintiff submits 1 counsel “has obtained excellent results” because he recovered “well in excess of the total 2 amount in unpaid wages that Defendants owed him.” Mot. at 11–12. This factor weighs 3 in favor of awarding the full lodestar amount. 4 e. Novelty and Difficulty of the Claims 5 Plaintiff submits the case involved a “straightforward claim that comes reasonably 6 often before this court.” Mot. at 8. This factor is neutral. 7 f. Undesirability of the Case 8 Plaintiff argues this case was generally undesirable because it involved low 9 damages, a “speculative amount of available fees,” and the risk of taking on a matter and 10 expending costs without guarantee of recovery. Mot. at 13. While the Court agrees that 11 this factor supports Plaintiff’s award of fees, the Court finds this factor does not justify an 12 adjustment to the lodestar amount. 13 g. Nature of the Attorney-Client Relationship 14 Mr. Bendau has never represented Plaintiff before this case. Mot at 13. This factor 15 is neutral. 16 h. Awards in Similar Cases 17 Finally, the Court considers awards in similar cases. Plaintiff refers to the cases 18 cited for the reasonableness of Mr. Bendau’s hourly fee to demonstrate awards in similar 19 cases. Mot. at 13. In Ekstrand v. Tru Realty LLC, a court awarded an FLSA plaintiff 20 $9,167.00 in attorneys’ fees after default judgment based on a $445 hourly rate. No. 23- 21 cv-1416, Dkt. 17 (D. Ariz. Oct. 20, 2023). The Court finds this case is sufficiently similar 22 to the present case to weigh in favor of awarding the full lodestar amount. 23 i. Final Lodestar Adjustment 24 After consideration, The Court determines the Kerr factors do not justify an 25 adjustment to the lodestar amount. 26 D. Conclusion 27 The Court finds Mr. Bendau’s $445 hourly rate and 12.7 hours spent on the case to 28 be reasonable, yielding a lodestar amount of $5,651.50. No adjustment to the lodestar 1 amount is necessary. Thus, the Court will award attorneys’ fees in the amount of 2 $5,651.50. 3 COSTS 4 In addition to attorneys’ fees, Plaintiff requests $797.60 in out-of-pocket costs, Mot. 5 at 6, detailed in an exhibit to the motion (Doc. 18-9). Reasonable out-of-pocket expenses 6 are awardable as “costs of the action” under the FLSA. See Van Dyke v. BTS Container 7 Serv., Inc., 2009 WL 2997105, at *2 (D. Or. Sept. 15, 2009). The Court finds Plaintiff’s 8 requested out-of-pocket costs reasonable and will award Plaintiff $797.60 in costs. 9 Plaintiff also requests an additional $2,000 for anticipated collection efforts. Mot. 10 at 13. But Plaintiff has not demonstrated that he will incur any specific collection costs in 11 this case. In support of this request, Plaintiff simply states he and Plaintiff’s counsel “will 12 likely need to pay fees and additional costs their collection efforts.” Mot. at 15. Plaintiff 13 submits a list of other District of Arizona cases determining awarding $2,000 in costs for 14 potential collection efforts is reasonable. Mot. at 15–16. These cases award advance 15 collection costs with little or no analysis. Given the absence of analysis, the Court is not 16 persuaded these authorities support Plaintiff’s request. 17 Plaintiff fails to identify any facts suggesting Plaintiff will actually employ any of 18 these various collection methods or services to collect from Defendants. Although 19 Defendants failed to appear and participate in this action, this alone does not support a 20 finding that Defendants will resist payment. See Mumphrey v. Good Neighbor Community 21 Services LLC, No. 23-cv-00923, 2023 WL 8702103, at *5 (D. Ariz. Dec. 15, 2023), 22 Stamper v. Freebird Logistics Inc., No. 22-cv-00155, 2022 WL 4448457, at *4 (D. Ariz. 23 Sept. 23, 2022) (citing Farm Credit of Nw. Fla., ACA v. R & B Const. of S. Ala., Inc., 24 No. 08-cv-00439, 2009 WL 4456340, at *5 n.7 (S.D. Ala. Nov. 24, 2009)). The Court 25 recognizes that Plaintiff may incur costs in collecting from Defendants. But any award of 26 collection costs before Plaintiff incurs them is necessarily speculative. And where the 27 requested collection costs are unsupported by specific facts, as here, an advance award of 28 anticipated collection costs is particularly improper. See, e.g. Stamper, 2022 WL 4448457 at *4 (denying anticipated collection costs as “speculative” and “unreasonable”); F.D.I.C. v. Thornton, No. 12-cv-00218, 2014 WL 4174037, at *4 (M.D. Tenn. Aug. 20, 2014) (finding a $5,000 award for anticipated post-judgment collection costs “speculative and 4|| therefore unreasonable” where requesting party did not “explain its anticipated collection 5 || efforts”); Farm Credit, 2009 WL 4456340 at *5 n.7 (denying anticipated collection fees || where plaintiff did “not link his opinions to any evidence concerning the financial status or □□ anticipated resistance to collection efforts”); Akula v. Airbee Wireless, Inc., No. 08-cv- 8 || 00421, 2009 WL 122795, at *2 (E.D. Va. Jan. 14, 2009) (denying advance collection fees 9|| where “the necessity and amount of future attorney’s fees requested by Plaintiff are too 10 || speculative at this point in the collection process”). 11 The Court finds an advance award of $2,000 in anticipated collection costs || unreasonable. Plaintiff is free to seek collection costs or additional attorneys’ fees once 13 || Plaintiff actually incurs them. 14 Accordingly, 15 IT IS ORDERED Plaintiff's Motion for an Award of Attorneys’ Fees and Costs 16|| (Doc. 19) is GRANTED IN PART and DENIED IN PART. The Court awards Plaintiff $5,651.50 in attorneys’ fees and $797.60 in costs. 18 Dated this 15th day of May, 2024. 19 fo . 20 C | . ES . 21 Honorable slyn ©. Silver 02 Senior United States District Judge 23 24 25 26 27 28

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