6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 CNA INSURANCE COMPANY LIMITED, CASE NO. C18-932RSM
9 Plaintiff, ORDER
10 v.
11 EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. d/b/a EXPEDITORS 12 INTERNATIONAL OCEAN, et al.,
13 Defendants.
14 15 This matter is before the Court on supplemental briefing of the parties following the 16 Court’s order awarding Defendant “its reasonable fees and costs reasonably incurred because of 17 Plaintiff’s failure to participate in the preparation of an agreed pretrial order.” Dkt. #44 at 7. 18 Defendant “requests an award of $17,450 in attorneys’ fees and $15 in costs.” Dkt. #47 at 1. 19 Plaintiff objects that the requested fees are exorbitant and unreasonable. Dkt. #49 at 1.1 20 District courts have broad discretion to determine the reasonableness of fees. Gates v. 21 Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). In making the determination, courts calculate 22
1 Plaintiff does not contest that Federal Rule of Civil Procedure 16 provides an appropriate basis 23 for the imposition of attorneys’ fees and costs here. See FED. R. CIV. P. 16(f)(2) (providing for an award of “the reasonable expenses—including attorney’s fees—incurred because of any 24 noncompliance with this rule”). 1 the “lodestar amount,” which is the number of hours reasonably expended multiplied by a 2 reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 3 The lodestar figure is a presumptively reasonable fee award.2 Id. at 977. 4 The Court begins by noting that the reasonableness of the hourly rates charged are not 5 challenged and are consistent with the hourly rates the Court found reasonable when it previously
6 awarded Defendant fees in this matter. See Dkt. #49 at 1; Dkt. #29 at 2. The Court accepts the 7 rates3 as reasonable and accordingly considers the number of hours reasonably expended. 8 Defendant argues that Plaintiff’s failure to participate in the preparation of a pretrial order 9 caused it to incur fees for three discrete tasks. Dkt. #47 at 3–4. Most directly, Defendant argues 10 that Plaintiff’s actions necessitated various communications aimed at attempting to coordinate 11 over the pretrial order and Defendant’s preparation of its own pretrial order for 11.7 hours. Dkt. 12 #47 at 4; see also Dkt. #38. Additionally, Defendants argue that Plaintiff’s actions were 13 necessarily detailed and addressed in briefing its motion to dismiss for failure to prosecute or 14 comply with the Court’s deadlines. See Dkts. #33 and #40. This briefing required 28.4 hours.
15 16
17 2 The lodestar figure may also be adjusted up or down to arrive at a reasonable fee with consideration of the Kerr factors. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 18 2002). The “Kerr factors” refer to various considerations identified by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). These factors include (1) the time and 19 labor required, (2) the novelty and difficulty of the questions involved, (3) the skill required, (4) the preclusion of other employment, (5) the customary fee, (6) whether the fee is fixed or 20 contingent, (7) time limitations imposed by the client or circumstances, (8) the amount involved and results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 21 “undesirability” of the case, (11) the nature and length of the relationship with the client, and (12) awards in similar cases. Id. at 70. Many of these factors are subsumed into the lodestar 22 calculation itself. Cunningham v. Cnty. of Los Angeles, 879 F2d 481, 487 (9th Cir. 1988). The Court does not find any adjustment necessary in this case. 23
3 Mr. Block and Mr. Filer, both shareholders, charged $475 per hour and Ms. Mennemeier, an 24 associate, charged $315 per hour. 1 Dkt. #47 at 3. Finally, Defendant argues that Plaintiff’s actions necessitated 5.9 hours of work 2 to respond to an order to show cause issued by this Court. Dkt. #47 at 4; see also Dkt. #43. 3 Plaintiff argues that a more substantial portion of the work should have been handled by 4 associates. Dkt. #49 at 2. But the Court’s local rules specifically require that the attorneys 5 “principally responsible for trying the case on behalf of each party” must “be completely familiar
6 with all aspects of the case.” LCR 16(k). The Court will not fault Defendant for the involvement 7 of lead counsel at this case’s late juncture. 8 Secondly, Plaintiff argues that the preparation of a pretrial order is a mundane task and 9 that the Court should award only 10-15% of the amount requested by Defendant.4 This small 10 portion should be sufficient, Plaintiff argues, because cases such as this rarely proceed to trial, 11 because the prejudice to Defendant from its failure to participate is minimal, and because 12 Defendant could have approached the issue differently. Dkt. #49 at 3. Further, Plaintiff argues, 13 the Court’s current award should be reduced because Plaintiff has already borne fees and costs 14 because of Plaintiff’s other conduct in this case. Id. at 3–4. But the Court declines the invitation
15 to travel with Plaintiff down the many different paths that could have resulted from different 16 actions by Plaintiff and Defendant. The Court does not doubt that the issue could have been 17 resolved more swiftly by the parties. But the Court’s proper inquiry relates to what actually 18 happened. 19 “The party seeking fees bears the burden of documenting the hours expended in the 20 litigation and must submit evidence supporting those hours.” Welch v. Metro. Life Ins. Co., 480 21 F.3d 942, 945–46 (9th Cir. 2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Here, 22 Defendant has provided contemporaneous time records. Dkt. #47-2 at 42–48. After the Court’s 23
24 4 These percentages represent a proposed range of fees from $1,745 to $2,617.50. 1 review, neither the work performed, nor the hours expended strike the Court as particularly 2 unusual or unnecessary. Defendant further provides a table summarizing the work expended by 3 its counsel, broken out by attorney and by task. Dkt. #47-1 at 3. Nevertheless, the Court does 4 find several deviations appropriate. 5 The Court does not agree that all time related to Defendant’s motion to dismiss should be
6 compensated. Plaintiff’s failure to satisfy its obligations related to the pretrial order was only 7 one of several grounds supporting Defendant’s motion to dismiss. See generally Dkt. #33. The 8 Court finds that one third of this time was reasonably related to Plaintiff’s failures related to the 9 pretrial order. The issue, however, received more focus on Defendant’s reply and the Court finds 10 that one half of that time is a more reasonable award. See generally Dkt. #40. This same 11 reasoning holds true for Defendant’s response to the Court’s order to show cause, and the Court 12 again finds that one half of that time is reasonably awarded. 13 The Court also finds that several individual time entries do not appear adequately related 14 to Plaintiff’s conduct at issue here. Accordingly, the Court excludes the following entries.
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6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 CNA INSURANCE COMPANY LIMITED, CASE NO. C18-932RSM
9 Plaintiff, ORDER
10 v.
11 EXPEDITORS INTERNATIONAL OF WASHINGTON, INC. d/b/a EXPEDITORS 12 INTERNATIONAL OCEAN, et al.,
13 Defendants.
14 15 This matter is before the Court on supplemental briefing of the parties following the 16 Court’s order awarding Defendant “its reasonable fees and costs reasonably incurred because of 17 Plaintiff’s failure to participate in the preparation of an agreed pretrial order.” Dkt. #44 at 7. 18 Defendant “requests an award of $17,450 in attorneys’ fees and $15 in costs.” Dkt. #47 at 1. 19 Plaintiff objects that the requested fees are exorbitant and unreasonable. Dkt. #49 at 1.1 20 District courts have broad discretion to determine the reasonableness of fees. Gates v. 21 Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). In making the determination, courts calculate 22
1 Plaintiff does not contest that Federal Rule of Civil Procedure 16 provides an appropriate basis 23 for the imposition of attorneys’ fees and costs here. See FED. R. CIV. P. 16(f)(2) (providing for an award of “the reasonable expenses—including attorney’s fees—incurred because of any 24 noncompliance with this rule”). 1 the “lodestar amount,” which is the number of hours reasonably expended multiplied by a 2 reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 3 The lodestar figure is a presumptively reasonable fee award.2 Id. at 977. 4 The Court begins by noting that the reasonableness of the hourly rates charged are not 5 challenged and are consistent with the hourly rates the Court found reasonable when it previously
6 awarded Defendant fees in this matter. See Dkt. #49 at 1; Dkt. #29 at 2. The Court accepts the 7 rates3 as reasonable and accordingly considers the number of hours reasonably expended. 8 Defendant argues that Plaintiff’s failure to participate in the preparation of a pretrial order 9 caused it to incur fees for three discrete tasks. Dkt. #47 at 3–4. Most directly, Defendant argues 10 that Plaintiff’s actions necessitated various communications aimed at attempting to coordinate 11 over the pretrial order and Defendant’s preparation of its own pretrial order for 11.7 hours. Dkt. 12 #47 at 4; see also Dkt. #38. Additionally, Defendants argue that Plaintiff’s actions were 13 necessarily detailed and addressed in briefing its motion to dismiss for failure to prosecute or 14 comply with the Court’s deadlines. See Dkts. #33 and #40. This briefing required 28.4 hours.
15 16
17 2 The lodestar figure may also be adjusted up or down to arrive at a reasonable fee with consideration of the Kerr factors. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1158 (9th Cir. 18 2002). The “Kerr factors” refer to various considerations identified by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). These factors include (1) the time and 19 labor required, (2) the novelty and difficulty of the questions involved, (3) the skill required, (4) the preclusion of other employment, (5) the customary fee, (6) whether the fee is fixed or 20 contingent, (7) time limitations imposed by the client or circumstances, (8) the amount involved and results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 21 “undesirability” of the case, (11) the nature and length of the relationship with the client, and (12) awards in similar cases. Id. at 70. Many of these factors are subsumed into the lodestar 22 calculation itself. Cunningham v. Cnty. of Los Angeles, 879 F2d 481, 487 (9th Cir. 1988). The Court does not find any adjustment necessary in this case. 23
3 Mr. Block and Mr. Filer, both shareholders, charged $475 per hour and Ms. Mennemeier, an 24 associate, charged $315 per hour. 1 Dkt. #47 at 3. Finally, Defendant argues that Plaintiff’s actions necessitated 5.9 hours of work 2 to respond to an order to show cause issued by this Court. Dkt. #47 at 4; see also Dkt. #43. 3 Plaintiff argues that a more substantial portion of the work should have been handled by 4 associates. Dkt. #49 at 2. But the Court’s local rules specifically require that the attorneys 5 “principally responsible for trying the case on behalf of each party” must “be completely familiar
6 with all aspects of the case.” LCR 16(k). The Court will not fault Defendant for the involvement 7 of lead counsel at this case’s late juncture. 8 Secondly, Plaintiff argues that the preparation of a pretrial order is a mundane task and 9 that the Court should award only 10-15% of the amount requested by Defendant.4 This small 10 portion should be sufficient, Plaintiff argues, because cases such as this rarely proceed to trial, 11 because the prejudice to Defendant from its failure to participate is minimal, and because 12 Defendant could have approached the issue differently. Dkt. #49 at 3. Further, Plaintiff argues, 13 the Court’s current award should be reduced because Plaintiff has already borne fees and costs 14 because of Plaintiff’s other conduct in this case. Id. at 3–4. But the Court declines the invitation
15 to travel with Plaintiff down the many different paths that could have resulted from different 16 actions by Plaintiff and Defendant. The Court does not doubt that the issue could have been 17 resolved more swiftly by the parties. But the Court’s proper inquiry relates to what actually 18 happened. 19 “The party seeking fees bears the burden of documenting the hours expended in the 20 litigation and must submit evidence supporting those hours.” Welch v. Metro. Life Ins. Co., 480 21 F.3d 942, 945–46 (9th Cir. 2007) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Here, 22 Defendant has provided contemporaneous time records. Dkt. #47-2 at 42–48. After the Court’s 23
24 4 These percentages represent a proposed range of fees from $1,745 to $2,617.50. 1 review, neither the work performed, nor the hours expended strike the Court as particularly 2 unusual or unnecessary. Defendant further provides a table summarizing the work expended by 3 its counsel, broken out by attorney and by task. Dkt. #47-1 at 3. Nevertheless, the Court does 4 find several deviations appropriate. 5 The Court does not agree that all time related to Defendant’s motion to dismiss should be
6 compensated. Plaintiff’s failure to satisfy its obligations related to the pretrial order was only 7 one of several grounds supporting Defendant’s motion to dismiss. See generally Dkt. #33. The 8 Court finds that one third of this time was reasonably related to Plaintiff’s failures related to the 9 pretrial order. The issue, however, received more focus on Defendant’s reply and the Court finds 10 that one half of that time is a more reasonable award. See generally Dkt. #40. This same 11 reasoning holds true for Defendant’s response to the Court’s order to show cause, and the Court 12 again finds that one half of that time is reasonably awarded. 13 The Court also finds that several individual time entries do not appear adequately related 14 to Plaintiff’s conduct at issue here. Accordingly, the Court excludes the following entries.
15 Date Hours Reason 11/07/19 0.4 Insufficiently related to missed pretrial deadlines 16 11/18/19 0.8 Insufficiently related to missed pretrial deadlines 17 11/18/19 0.5 Insufficiently related to missed pretrial deadlines 18 11/21/19 0.7 Insufficiently related to missed pretrial deadlines 19 11/25/19 0.3 Insufficiently related to missed pretrial deadlines 11/25/19 0.7 Unnecessary strategy conferencing 20 11/26/19 0.6 Unnecessary strategy conferencing 21 22 Finally, the Court finds that an overall reduction is appropriate because of block billing. 23 District courts reasonably conclude that the party seeking attorneys’ fees fails to carry its burden 24 of documenting the hours expended when that party engages in “block billing” because block 1 billing makes it more difficult to determine how much time was spent on particular activities. 2 Welch, 480 F.3d at 948. In this case, the Court finds that a 10% reduction in the time claimed is 3 appropriate. 4 Collectively, these reductions are represented in the following chart. 5 Hourly Individual Type of Work Hours Total Rate 6 Block Communications with 7 opposing counsel, client, 8 and court about response to plaintiff's failure to submit 9 pretrial filings. 7.5 $475.00 $3,562.50 10 Mennemeier Communications with 11 opposing counsel, client, and court about response to 12 plaintiff's failure to submit 13 pretrial filings. 4.2 $315.00 $1,323.00 14 Block Prepare motion to dismiss 4.5 $475.00 $2,137.50 15 Mennemeier Prepare motion to dismiss 0.9 $315.00 $283.50 Block Prepare reply to motion to 16 dismiss 1.75 $475.00 $831.25 17 Mennemeier Prepare reply to motion to 18 dismiss 3.0 $315.00 $945.00 Block Respond to order to show 19 cause 1.3 $475.00 $617.50 20 Mennemeier Respond to order to show 21 cause 1.0 $315.00 $315.00
SUBTOTAL 24.15 $10,015.25 22 Less 10% - $1,001.53 23 TOTAL $9,013.72 24 1 Having considered the relevant briefing, supporting declarations, and the remainder of 2 the record, the Court finds and ORDERS that Plaintiff shall pay the Expeditors Defendants 3 $9,013.72 in attorneys’ fees and $15.00 in costs (a total of $9,028.72) within thirty (30) days of 4 this Order. 5 Dated this 5 day of February, 2020.
6 7 A 8 RICARDO S. MARTINEZ 9 CHIEF UNITED STATES DISTRICT JUDGE
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