THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 LAURA DERMER, CASE NO. C23-0443-JCC 10 Plaintiff, ORDER 11 v. 12 SALTWORKS, INC., et al., 13 Defendants. 14
15 This matter comes before the Court on Plaintiff’s motion for attorney fees (Dkt. No. 40). 16 In an order granting Plaintiff’s motion to compel (Dkt. No. 30), the Court concluded that 17 “Plaintiff [was] entitled to reasonable attorney fees and expenses incurred in filing the motion to 18 compel.” (Dkt. No. 39 at 3–4.) It then directed Plaintiff to present the Court with an accounting 19 of those fees and expenses. (Id. at 4.) Presently before the Court is that accounting. (See Dkt. No. 20 40.) Having reviewed the accounting, the Court GRANTS in part and DENIES in part Plaintiff’s 21 motion (Dkt. No. 40) for the reasons described below. 22 If the Court grants a motion to compel, the Court ordinarily “must, after giving an 23 opportunity to be heard, require the party or deponent whose conduct necessitated the motion, 24 the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses 25 incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A); see, e.g., 26 S/Y Paliador, LLC v. Platypus Marine, Inc., 344 F.R.D. 110, 120 (W.D. Wash. 2023). The Court 1 employs a two-step process to calculate a reasonable fee award. Fischer v. SJB-P.D. Inc., 214 2 F.3d 1115, 1119 (9th Cir. 2000). First, it calculates the lodestar figure, which represents the 3 number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate. 4 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, it determines whether to increase or 5 reduce that figure based on several factors which are not subsumed in the lodestar calculation. 6 Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); see Kerr v. Screen Guild Extras, Inc., 526 7 F.2d 67, 70 (9th Cir. 1975).1 8 A reasonable hourly rate is the prevailing market rate in the community for similar 9 services by a lawyer of reasonably comparable skill, experience, and reputation. Roberts v. City 10 of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019). And “[t]he number of hours to be 11 compensated is calculated by considering whether, in light of the circumstances, the time could 12 reasonably have been billed to a private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 13 1111 (9th Cir. 2008). The Court must exclude from the lodestar amount hours that are not 14 reasonably expended because they are “excessive, redundant, or otherwise unnecessary.” 15 Hensley, 461 U.S. at 434. There is a “strong presumption” that the lodestar figure is a reasonable 16 fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992). 17 Plaintiff’s counsel submitted a declaration detailing time spent on the following tasks 18 relating to their successful motion to compel: composing the motion, meeting and conferring 19 with defense counsel regarding the same, reviewing exhibits, and finalizing a reply brief. (See 20 1 The Kerr factors 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, 23 (5) 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 Dkt. No. 41-2 at 2.) They also included time spent by a paralegal who assisted in preparing 2 supporting declarations and exhibits. (Id.) Defendants, through counsel, bring two challenges to 3 this accounting: First, they argue the associate attorney’s hourly fee is unreasonable; and second, 4 they contend the total time spent drafting the motion is unreasonable. (See Dkt. No. 43 at 4.) The 5 Court agrees with both contentions, at least in part. 6 First, the associate attorney’s hourly rate of $3502 is not reflective of his experience, nor 7 the market rate for attorneys with comparable experience. Indeed, the associate’s own 8 declaration makes no mention of any prior experience with employment law. (See Dkt. No. 42 at 9 1–2.) A $350 hourly rate would be more appropriate for someone with significantly more 10 experience in this legal area. See, e.g., Cockrum v. C.H. Murphy/Clark-Ullman LLC, Inc., 2023 11 WL 2401927, slip op. at 2 (W.D. Wash. 2023) ($350 hourly rate reasonable for an attorney with 12 at least six years of experience in the same area of law); Saunders v. Schweinhaus, Inc., 2022 13 WL 17820566, slip op. at 2 (W.D. Wash. 2022) ($350 hourly rate reasonable for an associate 14 with five years of experience); see also Thacker v. Bank of New York Mellon, 2019 WL 15 1765217, slip op. at 5 (W.D. Wash. 2019) ($250 hourly rate for junior associate is reasonable). 16 Thus, it is more fitting for Mr. Toren’s rate to be $300 per hour.3 17 Second, the total time spent on the motion was unreasonable. Plaintiff’s counsel contends 18 that, inclusive of paralegal time, they spent 45.3 hours on the motion to compel. (See Dkt. Nos. 19 40-1 at 2, 41-2 at 2.) They then reduced the hours charged by 4.5 hours for the partner, 2 hours 20 for the associate, and .5 hours for the paralegal, resulting in a total of 38.3 hours for all three. 21 (Id.) Granted, the time required to craft such a motion can vary, depending on the motion’s 22 complexity. In Al-Bustani v. Alger, 2023 WL 7017076, slip op. at 3 (W.D. Wash. 2023), for 23 2 The Court understands Plaintiff’s counsel, Mr. Toren, reduced his rate by 50% for some of the 24 work performed. (See Dkt. No. 41-2 at 2.) Nevertheless, it finds that the starting point/rate of 25 $350 is excessive, as described below. 3 The half-rate reductions described in counsel’s accounting, (Dkt. No. 41-2 at 2), would reduce 26 that rate in some instances to $150 per hour. 1 example, “4.8 hours reflect[ed] a reasonable time expended by an experienced attorney in 2 drafting a simple motion to compel.” The same was true in Head v. Home Depot, U.S.A., Inc. 3 2019 WL 1572369, slip op. at 4 (W.D. Wash. 2019) (reducing the reported time of 9.6 hours to 4 4.8 hours). And although 56.3 hours has been deemed appropriate in at least one instance, the 5 extent of discovery abuses there was much larger than here. See Top Notch Sols., Inc. v. Crouse 6 & Associates Ins. Brokers, Inc., 2019 WL 3413201, slip op. at 5 (W.D. Wash. 2019). 7 Based on this Court’s review of defense counsel’s declaration, and its understanding of 8 the issues at play in the instant motion to compel, it finds 38.3 hours to be “excessive, redundant, 9 or otherwise unnecessary.” Hensley, 461 U.S. at 434. It therefore reduces that number by the 10 following: 1.8 hours spent by the partner and 11.8 hours spent by the associate (9.6 of which is 11 charged at a half rate), resulting in 24.7 hours in total. Based on these revised hours and rates, the 12 Court determines that $7,395 is the total appropriate lodestar figure for the work performed.
Free access — add to your briefcase to read the full text and ask questions with AI
THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 LAURA DERMER, CASE NO. C23-0443-JCC 10 Plaintiff, ORDER 11 v. 12 SALTWORKS, INC., et al., 13 Defendants. 14
15 This matter comes before the Court on Plaintiff’s motion for attorney fees (Dkt. No. 40). 16 In an order granting Plaintiff’s motion to compel (Dkt. No. 30), the Court concluded that 17 “Plaintiff [was] entitled to reasonable attorney fees and expenses incurred in filing the motion to 18 compel.” (Dkt. No. 39 at 3–4.) It then directed Plaintiff to present the Court with an accounting 19 of those fees and expenses. (Id. at 4.) Presently before the Court is that accounting. (See Dkt. No. 20 40.) Having reviewed the accounting, the Court GRANTS in part and DENIES in part Plaintiff’s 21 motion (Dkt. No. 40) for the reasons described below. 22 If the Court grants a motion to compel, the Court ordinarily “must, after giving an 23 opportunity to be heard, require the party or deponent whose conduct necessitated the motion, 24 the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses 25 incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A); see, e.g., 26 S/Y Paliador, LLC v. Platypus Marine, Inc., 344 F.R.D. 110, 120 (W.D. Wash. 2023). The Court 1 employs a two-step process to calculate a reasonable fee award. Fischer v. SJB-P.D. Inc., 214 2 F.3d 1115, 1119 (9th Cir. 2000). First, it calculates the lodestar figure, which represents the 3 number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate. 4 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Second, it determines whether to increase or 5 reduce that figure based on several factors which are not subsumed in the lodestar calculation. 6 Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016); see Kerr v. Screen Guild Extras, Inc., 526 7 F.2d 67, 70 (9th Cir. 1975).1 8 A reasonable hourly rate is the prevailing market rate in the community for similar 9 services by a lawyer of reasonably comparable skill, experience, and reputation. Roberts v. City 10 of Honolulu, 938 F.3d 1020, 1024 (9th Cir. 2019). And “[t]he number of hours to be 11 compensated is calculated by considering whether, in light of the circumstances, the time could 12 reasonably have been billed to a private client.” Moreno v. City of Sacramento, 534 F.3d 1106, 13 1111 (9th Cir. 2008). The Court must exclude from the lodestar amount hours that are not 14 reasonably expended because they are “excessive, redundant, or otherwise unnecessary.” 15 Hensley, 461 U.S. at 434. There is a “strong presumption” that the lodestar figure is a reasonable 16 fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992). 17 Plaintiff’s counsel submitted a declaration detailing time spent on the following tasks 18 relating to their successful motion to compel: composing the motion, meeting and conferring 19 with defense counsel regarding the same, reviewing exhibits, and finalizing a reply brief. (See 20 1 The Kerr factors 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, 23 (5) 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 Dkt. No. 41-2 at 2.) They also included time spent by a paralegal who assisted in preparing 2 supporting declarations and exhibits. (Id.) Defendants, through counsel, bring two challenges to 3 this accounting: First, they argue the associate attorney’s hourly fee is unreasonable; and second, 4 they contend the total time spent drafting the motion is unreasonable. (See Dkt. No. 43 at 4.) The 5 Court agrees with both contentions, at least in part. 6 First, the associate attorney’s hourly rate of $3502 is not reflective of his experience, nor 7 the market rate for attorneys with comparable experience. Indeed, the associate’s own 8 declaration makes no mention of any prior experience with employment law. (See Dkt. No. 42 at 9 1–2.) A $350 hourly rate would be more appropriate for someone with significantly more 10 experience in this legal area. See, e.g., Cockrum v. C.H. Murphy/Clark-Ullman LLC, Inc., 2023 11 WL 2401927, slip op. at 2 (W.D. Wash. 2023) ($350 hourly rate reasonable for an attorney with 12 at least six years of experience in the same area of law); Saunders v. Schweinhaus, Inc., 2022 13 WL 17820566, slip op. at 2 (W.D. Wash. 2022) ($350 hourly rate reasonable for an associate 14 with five years of experience); see also Thacker v. Bank of New York Mellon, 2019 WL 15 1765217, slip op. at 5 (W.D. Wash. 2019) ($250 hourly rate for junior associate is reasonable). 16 Thus, it is more fitting for Mr. Toren’s rate to be $300 per hour.3 17 Second, the total time spent on the motion was unreasonable. Plaintiff’s counsel contends 18 that, inclusive of paralegal time, they spent 45.3 hours on the motion to compel. (See Dkt. Nos. 19 40-1 at 2, 41-2 at 2.) They then reduced the hours charged by 4.5 hours for the partner, 2 hours 20 for the associate, and .5 hours for the paralegal, resulting in a total of 38.3 hours for all three. 21 (Id.) Granted, the time required to craft such a motion can vary, depending on the motion’s 22 complexity. In Al-Bustani v. Alger, 2023 WL 7017076, slip op. at 3 (W.D. Wash. 2023), for 23 2 The Court understands Plaintiff’s counsel, Mr. Toren, reduced his rate by 50% for some of the 24 work performed. (See Dkt. No. 41-2 at 2.) Nevertheless, it finds that the starting point/rate of 25 $350 is excessive, as described below. 3 The half-rate reductions described in counsel’s accounting, (Dkt. No. 41-2 at 2), would reduce 26 that rate in some instances to $150 per hour. 1 example, “4.8 hours reflect[ed] a reasonable time expended by an experienced attorney in 2 drafting a simple motion to compel.” The same was true in Head v. Home Depot, U.S.A., Inc. 3 2019 WL 1572369, slip op. at 4 (W.D. Wash. 2019) (reducing the reported time of 9.6 hours to 4 4.8 hours). And although 56.3 hours has been deemed appropriate in at least one instance, the 5 extent of discovery abuses there was much larger than here. See Top Notch Sols., Inc. v. Crouse 6 & Associates Ins. Brokers, Inc., 2019 WL 3413201, slip op. at 5 (W.D. Wash. 2019). 7 Based on this Court’s review of defense counsel’s declaration, and its understanding of 8 the issues at play in the instant motion to compel, it finds 38.3 hours to be “excessive, redundant, 9 or otherwise unnecessary.” Hensley, 461 U.S. at 434. It therefore reduces that number by the 10 following: 1.8 hours spent by the partner and 11.8 hours spent by the associate (9.6 of which is 11 charged at a half rate), resulting in 24.7 hours in total. Based on these revised hours and rates, the 12 Court determines that $7,395 is the total appropriate lodestar figure for the work performed. The 13 Kerr factors do not warrant an increase or a further reduction in that figure. See Kelly, 822 F.3d 14 at 1099; Kerr, 526 F.2d at 70. This is a reasonable award of fees under Federal Rule of Civil 15 Procedure 37(a)(5)(A), at least in this instance. 16 For the foregoing reasons, Plaintiff’s motion for attorney fees (Dkt. No. 40) is 17 GRANTED in part and DENIED in part. Defendant is ORDERED to pay fees in the amount of 18 $7,395.00 pursuant to Rule 37(a)(5)(A). This amount must be remitted within 15 days of this 19 order. 20 DATED this 1st day of March 2024.
21 A 22 23 24 John C. Coughenour 25 UNITED STATES DISTRICT JUDGE 26