6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8
9 SHELLEY CIMINI, Case No.: 2:19-cv-01027-JCM-NJK 10 Plaintiff(s), Order 11 v. [Docket No. 31] 12 RICO WHITE, et al., 13 Defendant(s). 14 On January 2, 2020, the Court granted the motion to compel filed by Defendant Sutherland 15 Global Services, Inc. Docket No. 30. The Court also therein granted Sutherland Global’s request 16 for sanctions. Id. On January 9, 2020, Sutherland Global filed paperwork documenting the 17 attorneys’ fees it seeks to recover pursuant to that order. Docket No. 31. Plaintiff had until January 18 16, 2020, to respond. See Docket No. 30 at 1. Plaintiff has not filed any such response. 19 I. LODESTAR CALCULATION 20 The amount of fees awardable under Rule 37 of the Federal Rules of Civil Procedure is 21 determined using the familiar lodestar approach. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 587 22 (D. Nev. 2013). Under the lodestar method, the Court determines a reasonable fee by multiplying 23 the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 24 461 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. 25 County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).1 The Ninth Circuit has made clear that 26
27 1 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). A departure from 28 the lodestar is not warranted in this case. 1 “the district court is required to independently review [a] fee request even absent [] objections.” 2 Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992). 3 A. Reasonable Hours 4 The touchstone in determining the hours for which attorneys’ fees should be calculated is 5 whether the expenditure of time was reasonable. See, e.g., Marrocco, 291 F.R.D. at 588. The 6 Court “has a great deal of discretion in determining the reasonableness of the fee and, as a general 7 rule, [an appellate court] will defer to its determination . . . regarding the reasonableness of the 8 hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th 9 Cir. 2010) (quoting Gates, 987 F.2d at 1398). The reasonableness of hours expended depends on 10 the specific circumstances of each case. Camacho, 523 F.3d at 978. In reviewing the hours 11 claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or 12 that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433. In making the determination 13 of the reasonableness of hours expended on discovery motions, “the Court considers factors such 14 as the complexity of the issues raised, the need to review the record and pleadings, and the need 15 to conduct legal research, in addition to the length of the briefing.” See, e.g., Marrocco, 291 F.R.D. 16 at 588. 17 In this case, Sutherland Global seeks to recover for the time expended by two attorneys. 18 See Docket No. 31-2. With respect to Z. Kathryn Branson, much of her time expended is not 19 recoverable. First, Sutherland Global seeks to recover for the time expended in relation to the 20 meet-and-confer process. See id. at 2. The case law in this District has long been clear that such 21 time is not recoverable absent unusual circumstances. See, e.g., Aevoe Corp. v. AE Tech Co., 2013 22 WL 5324787, at *6 & n.12 (D. Nev. Sept. 20, 2013) (collecting cases). Such time is not 23 recoverable here. Second, Sutherland Global seeks to recover for the time expended strategizing 24 about the potential that disclosures would be made before an opposition was filed and in preparing 25 to file a notice of non-opposition. See Docket No. 31-2 at 2. Neither of these tasks was reasonably 26 necessary. Spending time formulating a strategy based on speculation of a litigation opponent’s 27 potential filing (which was never made) is not reasonable for purposes of the lodestar analysis. 28 The filing of a notice of non-opposition is also unnecessary under the rules, as the Court can 1 enforce its deadlines without any such filing, so that time is also not reasonable for purposes of the 2 lodestar analysis. Excising the above time leaves Ms. Branson with 1.5 hours spent strategizing 3 for the motion to compel, strategizing for the timing of the motion to compel, drafting a portion of 4 the motion to compel, and reviewing the motion to compel. See id. As a general matter, this time 5 is recoverable as reasonably incurred in relation to the motion to compel. At the same time, the 6 record reflects billing in quarter-hour increments. See id. Courts generally look with disfavor on 7 such billing because it is a less reliable indicator of the time actually expended than billing in tenth- 8 hour increments. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948-49 (9th Cir. 2007); 9 see also Pool v. Gail Willey Landscaping, Inc., 2017 WL 343640, at *2 (D. Nev. Jan. 23, 2017) 10 (finding quarter-hour billing to be “worrisome”). Coupled with some of the vague entries at issue, 11 like “[s]trategy regarding timing of motion to compel Monday,” the use of the quarter-billing 12 increments warrants a 20% reduction in the recoverable hours. As such, the Court finds that 1.2 13 hours of Ms. Branson’s time is recoverable here. 14 Sutherland Global also seeks to recover for 6.25 hours expended by Diana G. Dickinson, 15 whose hours relate exclusively to the drafting of the motion to compel and supporting 16 documentation. Docket No. 31-2 at 2. These hours are reasonable based on the work required for 17 the motion to compel, but will be reduced by 20% for the reasons discussed above. As such, the 18 Court finds that 5 hours of Ms. Dickinson’s time is recoverable here. 19 B. Reasonable Hourly Rate 20 Having determined the hours reasonably expended by counsel, the Court turns to the hourly 21 rate with which to calculate the lodestar. The party seeking an award of attorneys’ fees bears the 22 burden of establishing the reasonableness of the hourly rates requested. Camacho, 523 F.3d at 23 980. “To inform and assist the court in the exercise of its discretion, the burden is on the fee 24 applicant to produce satisfactory evidence–in addition to the attorney’s own affidavits–that the 25 requested rates are in line with those prevailing in the community for similar services by lawyers 26 of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 27 n.11 (1984). “Affidavits of the [movant’s] attorney and other attorneys regarding prevailing fees 28 in the community, and rate determinations in other cases, particularly those setting a rate for the 1} [movant’s] attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 2| of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its 3] own familiarity with the rates in the community to analyze those sought in the pending case. 4|| Ingram v.
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6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8
9 SHELLEY CIMINI, Case No.: 2:19-cv-01027-JCM-NJK 10 Plaintiff(s), Order 11 v. [Docket No. 31] 12 RICO WHITE, et al., 13 Defendant(s). 14 On January 2, 2020, the Court granted the motion to compel filed by Defendant Sutherland 15 Global Services, Inc. Docket No. 30. The Court also therein granted Sutherland Global’s request 16 for sanctions. Id. On January 9, 2020, Sutherland Global filed paperwork documenting the 17 attorneys’ fees it seeks to recover pursuant to that order. Docket No. 31. Plaintiff had until January 18 16, 2020, to respond. See Docket No. 30 at 1. Plaintiff has not filed any such response. 19 I. LODESTAR CALCULATION 20 The amount of fees awardable under Rule 37 of the Federal Rules of Civil Procedure is 21 determined using the familiar lodestar approach. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 587 22 (D. Nev. 2013). Under the lodestar method, the Court determines a reasonable fee by multiplying 23 the number of hours reasonably expended by a reasonable hourly rate. See Hensley v. Eckerhart, 24 461 U.S. 424, 433 (1983). The lodestar figure is presumptively reasonable. Cunningham v. 25 County of Los Angeles, 879 F.2d 481, 488 (9th Cir. 1988).1 The Ninth Circuit has made clear that 26
27 1 Adjustments to the lodestar are proper in only “rare and exceptional cases.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986). A departure from 28 the lodestar is not warranted in this case. 1 “the district court is required to independently review [a] fee request even absent [] objections.” 2 Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1992). 3 A. Reasonable Hours 4 The touchstone in determining the hours for which attorneys’ fees should be calculated is 5 whether the expenditure of time was reasonable. See, e.g., Marrocco, 291 F.R.D. at 588. The 6 Court “has a great deal of discretion in determining the reasonableness of the fee and, as a general 7 rule, [an appellate court] will defer to its determination . . . regarding the reasonableness of the 8 hours claimed by the [movant].” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 453 (9th 9 Cir. 2010) (quoting Gates, 987 F.2d at 1398). The reasonableness of hours expended depends on 10 the specific circumstances of each case. Camacho, 523 F.3d at 978. In reviewing the hours 11 claimed, the Court may exclude hours related to overstaffing, duplication, and excessiveness, or 12 that are otherwise unnecessary. See, e.g., Hensley, 461 U.S. at 433. In making the determination 13 of the reasonableness of hours expended on discovery motions, “the Court considers factors such 14 as the complexity of the issues raised, the need to review the record and pleadings, and the need 15 to conduct legal research, in addition to the length of the briefing.” See, e.g., Marrocco, 291 F.R.D. 16 at 588. 17 In this case, Sutherland Global seeks to recover for the time expended by two attorneys. 18 See Docket No. 31-2. With respect to Z. Kathryn Branson, much of her time expended is not 19 recoverable. First, Sutherland Global seeks to recover for the time expended in relation to the 20 meet-and-confer process. See id. at 2. The case law in this District has long been clear that such 21 time is not recoverable absent unusual circumstances. See, e.g., Aevoe Corp. v. AE Tech Co., 2013 22 WL 5324787, at *6 & n.12 (D. Nev. Sept. 20, 2013) (collecting cases). Such time is not 23 recoverable here. Second, Sutherland Global seeks to recover for the time expended strategizing 24 about the potential that disclosures would be made before an opposition was filed and in preparing 25 to file a notice of non-opposition. See Docket No. 31-2 at 2. Neither of these tasks was reasonably 26 necessary. Spending time formulating a strategy based on speculation of a litigation opponent’s 27 potential filing (which was never made) is not reasonable for purposes of the lodestar analysis. 28 The filing of a notice of non-opposition is also unnecessary under the rules, as the Court can 1 enforce its deadlines without any such filing, so that time is also not reasonable for purposes of the 2 lodestar analysis. Excising the above time leaves Ms. Branson with 1.5 hours spent strategizing 3 for the motion to compel, strategizing for the timing of the motion to compel, drafting a portion of 4 the motion to compel, and reviewing the motion to compel. See id. As a general matter, this time 5 is recoverable as reasonably incurred in relation to the motion to compel. At the same time, the 6 record reflects billing in quarter-hour increments. See id. Courts generally look with disfavor on 7 such billing because it is a less reliable indicator of the time actually expended than billing in tenth- 8 hour increments. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948-49 (9th Cir. 2007); 9 see also Pool v. Gail Willey Landscaping, Inc., 2017 WL 343640, at *2 (D. Nev. Jan. 23, 2017) 10 (finding quarter-hour billing to be “worrisome”). Coupled with some of the vague entries at issue, 11 like “[s]trategy regarding timing of motion to compel Monday,” the use of the quarter-billing 12 increments warrants a 20% reduction in the recoverable hours. As such, the Court finds that 1.2 13 hours of Ms. Branson’s time is recoverable here. 14 Sutherland Global also seeks to recover for 6.25 hours expended by Diana G. Dickinson, 15 whose hours relate exclusively to the drafting of the motion to compel and supporting 16 documentation. Docket No. 31-2 at 2. These hours are reasonable based on the work required for 17 the motion to compel, but will be reduced by 20% for the reasons discussed above. As such, the 18 Court finds that 5 hours of Ms. Dickinson’s time is recoverable here. 19 B. Reasonable Hourly Rate 20 Having determined the hours reasonably expended by counsel, the Court turns to the hourly 21 rate with which to calculate the lodestar. The party seeking an award of attorneys’ fees bears the 22 burden of establishing the reasonableness of the hourly rates requested. Camacho, 523 F.3d at 23 980. “To inform and assist the court in the exercise of its discretion, the burden is on the fee 24 applicant to produce satisfactory evidence–in addition to the attorney’s own affidavits–that the 25 requested rates are in line with those prevailing in the community for similar services by lawyers 26 of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 27 n.11 (1984). “Affidavits of the [movant’s] attorney and other attorneys regarding prevailing fees 28 in the community, and rate determinations in other cases, particularly those setting a rate for the 1} [movant’s] attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 2| of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its 3] own familiarity with the rates in the community to analyze those sought in the pending case. 4|| Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). 5 Ms. Branson has approximately ten years of litigation experience, while Ms. Dickinson has approximately six years of experience. Global Sutherland is requesting to recover at the hourly 7|| rates that these attorneys ordinarily charge their clients, which is $325 and $260 respectively. 8|| With respect to Ms. Branson, the Court finds her requested rate to be a reasonable one. Cf 9] Kiessling v. Rader, 2017 WL 112865, at *3 (D. Nev. Mar. 24, 2017) (awarding rate of $350 for 10|| attorney with 14 years of experience). With respect to Ms. Dickinson, the Court has found that an 11} hourly rate of up to $250 is generally the prevailing rate for an experienced associate. Cf. SVJ, Inc. 12|| v. Supreme Corp., 2018 WL 1718560, at *3-4 (D. Nev. Apr. 9, 2018) (awarding rate of $225 for associate with seven years of experience). 14 Therefore, the reasonable rate for Ms. Branson is $325 and the reasonable rate for Ms. 15]| Dickinson is $250. 16 Cc. Lodestar Total 17 Accordingly, the Court awards $390 for the time expended by Ms. Branson and $1,250 for 18|| the time expended by Ms. Dickinson, for a total of $1,640. 19}| IT. CONCLUSION 20 For the reasons explained above, Global Sutherland is awarded attorneys’ fees in the 21|| amount of $1,640. Payment must be made by February 4, 2020. 22 IT IS SO ORDERED. 23 Dated: January 21, 2020 24 7, x S . Nancy J.Ko 25 United States Magistrate Judge 26 27 28