THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CARPENTERS HEALTH AND SECURITY CASE NO. C19-0258-JCC TRUST OF WESTERN WASHINGTON et al., 10 ORDER 11 Plaintiffs, v. 12 GIFFORD INDUSTRIES INC, 13 Defendant. 14 15 This matter comes before the Court on Defendant’s motion for reconsideration (Dkt. No. 16 28) and Plaintiffs’ application for attorney fees. Having thoroughly considered the parties’ 17 briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES 18 Defendant’s motion for reconsideration and GRANTS Plaintiffs’ application for attorney fees for 19 the reasons explained herein. 20 I. DISCUSSION 21 A. Motion for Reconsideration 22 Motions for reconsideration are disfavored. The Court will ordinarily deny such motions 23 “in the absence of a showing of manifest error in the prior ruling or a showing of new facts or 24 legal authority which could not have been brought to its attention earlier with reasonable 25 diligence.” Local Rule 7(h)(1). “A motion for reconsideration should not be used to ask the court 26 1 to rethink what the court had already thought through—rightly or wrongly.” Premier Harvest 2 LLC v. AXIS Surplus Ins. Co., Case No. C17-0784-JCC, Dkt. No. 61 at 1 (W.D. Wash. 2017) 3 (quoting U.S. v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998)). 4 Defendant argues that the Court erred when it found that it was undisputed that 5 Defendant breached the trust agreements and violated the Employee Retirement Income Security 6 Act of 1974 (“ERISA”) by failing to report and make contributions for fringe benefits. (See Dkt. 7 No. 28.) Defendant filed a short and argumentative declaration by the president of Defendant 8 Gifford Industries, Harvey Gifford, accompanied by 80 pages of unlabeled exhibits, but 9 Defendant did not file a brief in opposition to Plaintiffs’ motion for summary judgment. (Dkt. 10 No. 23.) Defendant’s motion for reconsideration merely repeats the assertions in Mr. Gifford’s 11 declaration that Defendant only owes Plaintiffs $3,201.44. (Compare Dkt. No. 23 at 1–2, with 12 Dkt. No. 28 at 1–3.) Thus, Defendant neither demonstrates that the Court committed manifest 13 error nor provides new facts or legal authority that would alter the Court’s ruling. See Local Rule 14 7(h)(1). Instead, Plaintiff asks the Court to “rethink what [it] had already thought through.” See 15 Premier Harvest, Case No. C17-0784-JCC, Dkt. No. 61 at 1. Therefore, Defendant’s motion for 16 reconsideration (Dkt. No. 28) is DENIED. 17 B. Plaintiffs’ Application for Attorney Fees 18 1. Calculation of Reasonable Attorney Fees 19 District courts employ a two-step process to calculate a reasonable fee award. Fischer v. 20 SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court calculates the lodestar 21 figure, which represents the number of hours reasonably expended on the litigation multiplied by 22 a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Bowers v. 23 Transamerica Title Ins. Co., 675 P.2d 193, 202 (Wash. 1983). Second, the court determines 24 whether to increase or reduce that figure based on several factors that are not subsumed in the 25 lodestar calculation. See Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); Kerr v. Screen 26 1 Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).1 There is a “strong presumption” that the 2 lodestar figure represents the reasonable fee award. City of Burlington v. Dague, 505 U.S. 557, 3 562 (1992); 224 Westlake, LLC v. Engstrom Prop., LLC, 281 P.3d 693, 713 (Wash. Ct. App. 4 2012). 5 To determine a reasonable billing rate, the Court generally looks to “the forum in which 6 the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). The 7 presumptive reasonable hourly rate for an attorney is the rate the attorney charges. Broyles v. 8 Thurston County, 195 P.3d 985, 1004 (Wash. Ct. App. 2008). The applicable geographic area for 9 determining a reasonable hourly rate for Plaintiffs’ counsel is the Puget Sound region. Id. “The 10 number of hours to be compensated is calculated by considering whether, in light of the 11 circumstances, the time could reasonably have been billed to a private client.” Moreno v. City of 12 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). A district court should exclude from the 13 lodestar amount hours that are not reasonably expended because they are “excessive, redundant, 14 or otherwise unnecessary.” Hensley, 461 U.S. at 434. 15 2. Plaintiffs’ Fee Application 16 ERISA authorizes the award of reasonable attorney fees and costs when a trust obtains a 17 judgment for unpaid contributions. See 29 U.S.C. § 1132(g)(2). The statute also authorizes post- 18 judgment interest at the rate specified by the plan. See id. The Court previously found that 19 Plaintiffs prevailed on their ERISA claim and are therefore entitled to entitled to an award of 20 1 The factors set forth in Kerr to evaluate the reasonableness of requested fees are: 21 (1) the time and labor required, (2) the novelty and difficulty of the questions 22 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) 23 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 24 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional 25 relationship with the client, and (12) awards in similar cases. 26 526 F.2d at 70. 1 reasonable attorney fees and costs. (Dkt. No. 26 at 5.) The Court ordered Plaintiffs to submit an 2 application for attorney fees and costs. (Id. at 6.) 3 Plaintiffs timely submitted an application for attorney fees. (See Dkt. Nos. 26 at 5, 29 at 4 1.) In total, Plaintiffs’ counsel declares that his firm has spent at least 109.5 hours directly 5 relating to the collection of the amounts due Plaintiffs, for a total of $24,745.00. (Dkt. No. 30 at 6 2.) Attorney Jeffrey G. Maxwell has been in private practice since 2003. (Id. at 1.) He has 7 worked over 103 hours on this matter. (See id. at 4–11.) His hourly rate is $235, which he 8 declares is consistent with or lower than the market rate for lawyers who primarily practice 9 ERISA litigation. (Id. at 1–2.) Other staff spent over 6 hours at an hourly rate of $90. (Id.) 10 Plaintiffs have also incurred $519.00 in costs relating to the filing of this action. (Id. at 2, 13.) 11 Defendant has not filed a response to Plaintiffs’ application. 12 i. Lodestar Calculation 13 Plaintiffs’ counsel’s rates are consistent with the rates charged by other firms in the Puget 14 Sound area and approved by this Court.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CARPENTERS HEALTH AND SECURITY CASE NO. C19-0258-JCC TRUST OF WESTERN WASHINGTON et al., 10 ORDER 11 Plaintiffs, v. 12 GIFFORD INDUSTRIES INC, 13 Defendant. 14 15 This matter comes before the Court on Defendant’s motion for reconsideration (Dkt. No. 16 28) and Plaintiffs’ application for attorney fees. Having thoroughly considered the parties’ 17 briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES 18 Defendant’s motion for reconsideration and GRANTS Plaintiffs’ application for attorney fees for 19 the reasons explained herein. 20 I. DISCUSSION 21 A. Motion for Reconsideration 22 Motions for reconsideration are disfavored. The Court will ordinarily deny such motions 23 “in the absence of a showing of manifest error in the prior ruling or a showing of new facts or 24 legal authority which could not have been brought to its attention earlier with reasonable 25 diligence.” Local Rule 7(h)(1). “A motion for reconsideration should not be used to ask the court 26 1 to rethink what the court had already thought through—rightly or wrongly.” Premier Harvest 2 LLC v. AXIS Surplus Ins. Co., Case No. C17-0784-JCC, Dkt. No. 61 at 1 (W.D. Wash. 2017) 3 (quoting U.S. v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998)). 4 Defendant argues that the Court erred when it found that it was undisputed that 5 Defendant breached the trust agreements and violated the Employee Retirement Income Security 6 Act of 1974 (“ERISA”) by failing to report and make contributions for fringe benefits. (See Dkt. 7 No. 28.) Defendant filed a short and argumentative declaration by the president of Defendant 8 Gifford Industries, Harvey Gifford, accompanied by 80 pages of unlabeled exhibits, but 9 Defendant did not file a brief in opposition to Plaintiffs’ motion for summary judgment. (Dkt. 10 No. 23.) Defendant’s motion for reconsideration merely repeats the assertions in Mr. Gifford’s 11 declaration that Defendant only owes Plaintiffs $3,201.44. (Compare Dkt. No. 23 at 1–2, with 12 Dkt. No. 28 at 1–3.) Thus, Defendant neither demonstrates that the Court committed manifest 13 error nor provides new facts or legal authority that would alter the Court’s ruling. See Local Rule 14 7(h)(1). Instead, Plaintiff asks the Court to “rethink what [it] had already thought through.” See 15 Premier Harvest, Case No. C17-0784-JCC, Dkt. No. 61 at 1. Therefore, Defendant’s motion for 16 reconsideration (Dkt. No. 28) is DENIED. 17 B. Plaintiffs’ Application for Attorney Fees 18 1. Calculation of Reasonable Attorney Fees 19 District courts employ a two-step process to calculate a reasonable fee award. Fischer v. 20 SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court calculates the lodestar 21 figure, which represents the number of hours reasonably expended on the litigation multiplied by 22 a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Bowers v. 23 Transamerica Title Ins. Co., 675 P.2d 193, 202 (Wash. 1983). Second, the court determines 24 whether to increase or reduce that figure based on several factors that are not subsumed in the 25 lodestar calculation. See Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); Kerr v. Screen 26 1 Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975).1 There is a “strong presumption” that the 2 lodestar figure represents the reasonable fee award. City of Burlington v. Dague, 505 U.S. 557, 3 562 (1992); 224 Westlake, LLC v. Engstrom Prop., LLC, 281 P.3d 693, 713 (Wash. Ct. App. 4 2012). 5 To determine a reasonable billing rate, the Court generally looks to “the forum in which 6 the district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). The 7 presumptive reasonable hourly rate for an attorney is the rate the attorney charges. Broyles v. 8 Thurston County, 195 P.3d 985, 1004 (Wash. Ct. App. 2008). The applicable geographic area for 9 determining a reasonable hourly rate for Plaintiffs’ counsel is the Puget Sound region. Id. “The 10 number of hours to be compensated is calculated by considering whether, in light of the 11 circumstances, the time could reasonably have been billed to a private client.” Moreno v. City of 12 Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). A district court should exclude from the 13 lodestar amount hours that are not reasonably expended because they are “excessive, redundant, 14 or otherwise unnecessary.” Hensley, 461 U.S. at 434. 15 2. Plaintiffs’ Fee Application 16 ERISA authorizes the award of reasonable attorney fees and costs when a trust obtains a 17 judgment for unpaid contributions. See 29 U.S.C. § 1132(g)(2). The statute also authorizes post- 18 judgment interest at the rate specified by the plan. See id. The Court previously found that 19 Plaintiffs prevailed on their ERISA claim and are therefore entitled to entitled to an award of 20 1 The factors set forth in Kerr to evaluate the reasonableness of requested fees are: 21 (1) the time and labor required, (2) the novelty and difficulty of the questions 22 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) 23 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 24 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional 25 relationship with the client, and (12) awards in similar cases. 26 526 F.2d at 70. 1 reasonable attorney fees and costs. (Dkt. No. 26 at 5.) The Court ordered Plaintiffs to submit an 2 application for attorney fees and costs. (Id. at 6.) 3 Plaintiffs timely submitted an application for attorney fees. (See Dkt. Nos. 26 at 5, 29 at 4 1.) In total, Plaintiffs’ counsel declares that his firm has spent at least 109.5 hours directly 5 relating to the collection of the amounts due Plaintiffs, for a total of $24,745.00. (Dkt. No. 30 at 6 2.) Attorney Jeffrey G. Maxwell has been in private practice since 2003. (Id. at 1.) He has 7 worked over 103 hours on this matter. (See id. at 4–11.) His hourly rate is $235, which he 8 declares is consistent with or lower than the market rate for lawyers who primarily practice 9 ERISA litigation. (Id. at 1–2.) Other staff spent over 6 hours at an hourly rate of $90. (Id.) 10 Plaintiffs have also incurred $519.00 in costs relating to the filing of this action. (Id. at 2, 13.) 11 Defendant has not filed a response to Plaintiffs’ application. 12 i. Lodestar Calculation 13 Plaintiffs’ counsel’s rates are consistent with the rates charged by other firms in the Puget 14 Sound area and approved by this Court. See, e.g., Campbell v. Catholic Cmty. Servs. of W. 15 Washington, No. C10-1579-JCC, Dkt. No. 120 at 3 (W.D. Wash. Aug. 8, 2012) ($350/partner, 16 $250/associates, $125/support staff). Therefore, the Court finds counsel’s rates reasonable. A 17 district court should exclude from the lodestar amount hours that are not reasonably expended 18 because they are “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. 19 Having reviewed counsel’s billing records, the Court concludes that the hours were reasonably 20 expended. (See Dkt. No. 30 at 2–11.) Multiplying the attorney’s reasonable hourly rates to the 21 total hours expended, the Court finds that the lodestar figure is $24,745.00. 22 ii. Upward or Downward Adjustment 23 After determining the lodestar, a district court can adjust the figure upward or downward 24 by considering various factors that were not part of its lodestar calculation. See Kelly, 822 F.3d at 25 1099; Kerr, 526 F.2d at 70. Plaintiffs’ counsel effectively and efficiently litigated the case, 26 achieving a favorable result for his clients. Thus, there is no basis for a downward adjustment. 1 There is also nothing in the nature of Plaintiffs’ claims or the conduct of this lawsuit that 2 warrants an upward adjustment. Thus, the factors set forth in Kerr do not warrant an increase or 3 reduction in the lodestar figure. See Kelly, 822 F.3d at 1099; Kerr, 526 F.2d at 70. Therefore, the 4 Court finds this lodestar figure represents a reasonable award of Plaintiffs’ attorney fees. 5 II. CONCLUSION 6 For the foregoing reasons, Defendant’s motion for reconsideration (Dkt. No. 28) is 7 DENIED. Plaintiffs’ application for attorney fees (Dkt. No. 29) is GRANTED. Defendant shall 8 pay Plaintiffs $24,745.00 in attorney fees, as allowed under ERISA, 29 U.S.C. §1132(g), and 9 Defendant shall reimburse Plaintiffs $519.00 for costs. 10 DATED this 7th day of April 2020. A 11 12 13 John C. Coughenour 14 UNITED STATES DISTRICT JUDGE
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