Arsenio Pelayo v. Platinum Limousine Services

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 26, 2020
• Docket: 16-16989
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARSENIO PELAYO, Individually and on No. 16-16989 behalf of all others similarly situated; 18-15169 FRANCIS MANANKIL, individually and on behalf of all others similarly situated; D.C. No. BRANDON BORELIZ, individually and on 1:15-cv-00023-DKW-KJM behalf of all others similarly situated,

Plaintiffs-Appellees, MEMORANDUM*

v.

PLATINUM LIMOUSINE SERVICES, INC.; KURT TSUNEYOSHI,

Defendants-Appellants.

ARSENIO PELAYO, Individually and on No. 16-16991 behalf of all others similarly situated; FRANCIS MANANKIL, individually and D.C. No. on behalf of all others similarly situated; 1:15-cv-00023-DKW-KJM BRANDON BORELIZ, individually and on behalf of all others similarly situated,

Plaintiffs-Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 5, 2020 Honolulu, Hawaii

Before: FARRIS, McKEOWN, and BADE, Circuit Judges.

In these consolidated appeals, Plaintiffs Arsenio Pelayo and Brandon Boreliz

(collectively, “Plaintiffs”) and Defendants Platinum Limousine Services, Inc. and

Kurt Tsuneyoshi (collectively, “Platinum”) cross-appeal the district court’s

attorneys’ fees award following the settlement of Plaintiffs’ Fair Labor Standards

Act claims. Platinum separately appeals the district court’s award of reasonable

expenses to Plaintiffs stemming from a post-judgment motion to compel. We

review an attorneys’ fee award and an award of expenses under Federal Rule of

Civil Procedure 37 for an abuse of discretion. See Stetson v. Grissom, 821 F.3d

1157, 1163 (9th Cir. 2016) (attorneys’ fees); Facebook, Inc. v. Power Ventures,

Inc., 844 F.3d 1058, 1070 (9th Cir. 2016) (Rule 37). We have jurisdiction under

28 U.S.C. § 1291, and we affirm both orders.

1. Plaintiffs argue that the district court abused its discretion in calculating the

lodestar, both in determining a reasonable hourly rate and the number of hours

reasonably expended on the matter. We reject both arguments.

2 The district court did not err in determining the reasonable hourly rate in the

community for attorneys of “comparable skill, experience and reputation” to

Plaintiffs’ lawyers. See Roberts v. City of Honolulu, 938 F.3d 1020, 1025 (9th Cir.

2019) (quotations and citation omitted). Here, the district court did not “discard[]

the declarations” submitted by Plaintiffs in support of their claimed fees entirely,

see id. at 1024, but rather considered the declarations in conjunction with fee

awards in similar cases, and its own “knowledge of customary rates and [its]

experience concerning reasonable and proper fees,” see Sam K. ex rel. Diane C. v.

Haw. Dep’t of Educ., 788 F.3d 1033, 1041 (9th Cir. 2015) (quoting Ingram v.

Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011)), before determining a reasonable

hourly rate for Plaintiffs’ attorneys. This was not an abuse of discretion.1

Plaintiffs further contend that the district court erroneously excluded discrete

billing entries by their attorneys from the number of hours reasonably expended on

the litigation. When fashioning the lodestar, a district court may “exclude hours

that are excessive, redundant, or otherwise unnecessary.” McCown v. City of

Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (internal quotation marks and

citation omitted). The district court’s order provided a concise and comprehensible

rationale for excluding four categories of billing entries from its lodestar

1 The Court denies Plaintiffs’ Motion to Take Judicial Notice (Nos. 16- 16989, 16-16991, Dkt. 34) because the documents noticed by Plaintiffs were not before the district court.

3 calculation. See Moreno v. City of Sacramento, 534 F.3d 1106, 1111–12 (9th Cir.

2008). Because the district court’s reasons find ample support in the record, the

district court did not abuse its discretion.

2. Next, Plaintiffs and Platinum each challenge the district court’s fifty percent

reduction of the lodestar. Specifically, Plaintiffs argue that the district court should

have imposed no reduction at all whereas Platinum contends that the cut was not

large enough. We disagree.

After calculating the lodestar, a district court has discretion to adjust the fee

upward or downward to reflect the “results obtained” by the plaintiff. Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983). A district court abuses its discretion when it

does not consider “the relationship between the ‘extent of the success’ [by the

plaintiff] and the amount of the fee award.” Bravo v. City of Santa Maria, 810

F.3d 659, 666 (9th Cir. 2016) (citation omitted). But we do not impose “a test of

strict proportionality” when determining the reasonableness of a fee award. See

McCown, 565 F.3d at 1104.

The district court did not err by applying a fifty percent reduction to the

lodestar after considering the limited relief Plaintiffs obtained “in comparison to

the scope of the litigation as a whole.” See Hensley, 461 U.S. at 440. Moreover,

the district court did not impermissibly “double count” categories of time for

reduction because the district court offered independent justifications for its line-

4 item reductions from Plaintiffs’ billing entries and its percentage reduction of the

lodestar. See Gonzalez v. City of Maywood, 729 F.3d 1196, 1204 n.3 (9th Cir.

2013) (“Double-counting occurs when a court reduces a fee award more than once

for the same issue.”).

Nor did the district court abuse its discretion by failing to reduce the lodestar

by a greater percentage. In contrast to Platinum’s argument, Plaintiffs’ settlement

exceeds a de minimis recovery, see Barrios v. Cal. Interscholastic Fed’n, 277 F.3d

1128, 1135–36 (9th Cir. 2002), and the district court’s fee award need not be

strictly proportional to the amount recovered by Plaintiffs, see McCown, 565 F.3d

at 1104.

3. Platinum separately appeals the district court’s award of attorneys’ fees to

Plaintiffs in connection with Plaintiffs’ successful post-judgment motion to

compel. Platinum contends that the district court’s award runs afoul of Rule 37,

the District of Hawaii’s local rules, and due process because the court awarded

Plaintiffs fees without affording Platinum sufficient opportunity to respond.

However, the record does not support Platinum’s contentions. Accordingly, we

conclude that the district court did not abuse its discretion by awarding reasonable

expenses to Plaintiffs.

Each party shall bear their own costs on appeal.

Nos. 16-16898, 16-16991: AFFIRMED. No. 18-15169: AFFIRMED.