1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Natalie Figueroa, ) 9 ) Plaintiff, ) No. CIV 19-022-TUC-CKJ 10 ) vs. ) 11 ) ORDER Gannett Company Incorporated, et al., ) 12 ) Defendants. ) 13 ) 14 Pending before the Court are the Request for an Order to Clerk to Maintain File Open 15 to Allow Plaintiff to Move for Attorney's Fees and Costs (Doc. 294) and the Motion for 16 Attorney's Fees (Docs. 295, 296, 298, 301) filed by Plaintiff Natalie Figueroa ("Figueroa"). 17 Also pending before the Court is the Renewed Motion for Judgment as a Matter of Law and 18 Motion for New Trial (Doc. 306) filed by Defendants Gannett Co., Inc., and TNI Partners 19 dba Arizona Daily Star ("Gannett"). Responses and replies have been filed. The Court 20 declines to set this matter for oral argument. See LRCiv 7.2(f); 27A Fed.Proc., L. Ed. § 21 62:361 (March 2023) ("A district court generally is not required to hold a hearing or oral 22 argument before ruling on a motion."). 23 Figueroa was awarded $275,000.00 in compensatory damages and $3,700,000.00 in 24 punitive damages in this case. (Docs. 271-275). Pursuant to 42 U.S.C. §1981a(b)(3), the 25 Court reduced the combined compensatory and punitive damages award is to the statutory 26 cap of $300,000 cap. (Doc. 292). Additionally, the Court awarded back pay, along with 27 pre-judgment interest, to Figueroa in the amount of $93,457.04. (Doc. 292). 28 1 I. Request for an Order to Clerk to Maintain File Open to Allow Plaintiff to Move for Attorney's Fees and Costs (Doc. 294) 2 Pursuant to this Court's August 17, 2022, Order, the Clerk of Court closed its file in 3 this matter. Figueroa requests this order be modified to permit her to move for attorney's 4 fees. However, the closing of the file after entry of judgment is an administrative process 5 that does not affect the ability to request attorney's fees. Further, Figueroa has submitted 6 her request for attorney's fees. The Court will deny this request. 7 8 II. Motion for Extension of Time (Doc. 310) 9 Figueroa requested additional time to file a reply to the Motion for Attorney's Fees. 10 The Court will grant this request and accepts Figueroa's reply. 11 12 III. Renewed Motion for Judgment as a Matter of Law and Motion for New Trial (Doc. 13 306) 14 Gannett renews its motion for judgment or partial judgment as a matter of law 15 ("JMOL") on three grounds. Gannett asserts Figueroa failed to introduce sufficient evidence 16 establishing she is a qualified individual under the Americans with Disabilities Act 17 ("ADA"), Figueroa failed to mitigate her lost wages by looking for a new job, and Gannett 18 did not act with malice or reckless disregard for Figueroa’s rights. 19 The applicable rule states: 20 If the court does not grant a motion for judgment as a matter of law made under Rule 21 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days 22 after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged--the movant may file a 23 renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the 24 court may: 25 (1) allow judgment on the verdict, if the jury returned a verdict; 26 (2) order a new trial; or 27 (3) direct the entry of judgment as a matter of law. 28 1 Fed. R. Civ. P. 50(b). 2 If a jury verdict is supported by substantial evidence it must be upheld. See Wallace 3 v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2007), citation omitted. "Substantial 4 evidence is such relevant evidence as reasonable minds might accept as adequate to support 5 a conclusion even if it is possible to draw two inconsistent conclusions from the evidence." 6 Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014), citation and quotations 7 omitted. 8 Judgment as a matter of law is appropriate if "the evidence, construed in the light 9 most favorable to the nonmoving party, 'permits only one reasonable conclusion, and that 10 conclusion is contrary to the jury's verdict.'" Keates v. Koile, 846 F. App'x 628, 630 (9th 11 Cir. 2021), quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). 12 Because the standards for granting summary judgment and judgment as a matter of 13 law mirror one another, courts must "review all of the evidence in the record." See Reeves 14 v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), citations omitted. Although 15 "the court must draw all reasonable inferences in favor of the nonmoving party . . . it may 16 not make credibility determinations or weigh the evidence." Id., citations omitted; E.E.O.C. 17 v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009). "[T]he court should give 18 credence to the evidence favoring the nonmovant as well as that 'evidence supporting the 19 moving party that is uncontradicted and unimpeached, at least to the extent that that 20 evidence comes from disinterested witnesses.'" Reeves v. Sanderson Plumbing Prods., Inc., 21 530 U.S. 133, 151 (2000), citation omitted. The Ninth Circuit has stated, "'It is error to deny 22 a judgment [as a matter of law] when it is clear that the evidence and its inferences cannot 23 reasonably support a judgment in favor of the opposing party.'" Weaving v. City of 24 Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014), citation omitted. 25 Alternatively, Gannett seeks a new trial on these issues because the judgment is 26 against the weight of the evidence. The Court "can grant a new trial 'for any of the reasons 27 for which new trials have heretofore been granted in actions at law in the courts of the 28 1 United States,' including where 'the verdict is against the weight of the evidence' and where 2 'the trial was not fair to the party moving[.]'" Stop StaringA Designs v. Tatyana, LLC, 625 3 F. App'x 328, 329 (9th Cir. 2015), citations omitted. Indeed, the Court can grant a new trial 4 on "any ground necessary to prevent a miscarriage of justice." Experience Hendrix L.L.C. 5 v. Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). 6 Further, the Court "is not limited to the grounds a party asserts to justify a new trial, 7 but may sua sponte raise its own concerns about the damages verdict." Id. at 842. In 8 considering a motion for new trial, the Court "is not required to view the trial evidence in 9 the light most favorable to the verdict. Instead, the district court can weigh the evidence and 10 assess the credibility of the witnesses." Id. As summarized by a treatise: 11 It may be doubted whether there is any verbal formula that will be of much use to trial courts in passing on motions of the type now being considered. Necessarily all 12 formulations are couched in broad and general terms that furnish no unerring litmus for a particular case. On the one hand, the trial judge does not sit to approve 13 miscarriages of justice. The judge's power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of 14 jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the 15 function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of the judge's own doubts in the 16 matter. Probably all that the judge can do is to balance these conflicting principles in the light of the facts of the particular case. If, having given full respect to the 17 jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that the judge will 18 grant a new trial. 19 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 Grounds for New 20 Trial—Weight of the Evidence (3d ed. Apr. 2022), footnotes omitted. 21 22 A. Qualified Individual 23 Gannett moved for JMOL on the basis Figueroa had failed to provide sufficient 24 evidence she was a qualified individual under the ADA. This Court denied that request. 25 On June 6, 2022, the jury returned verdicts as to the liability phase, including a finding 26 Figueroa had proven she was a qualified individual with a disability. 27 A qualified individual is someone who, with or without a reasonable accommodation, 28 1 can perform the essential functions of the employment position that such individual holds 2 or desires. 42 U.S.C. § 12111(8). The Ninth Circuit has stated: 3 The EEOC promulgated 29 C.F.R. § 1630.2(m) to further elaborate upon the meaning of the term "qualified." That subsection sets forth a two-step inquiry for 4 determining whether the individual is qualified. We first determine whether the individual satisfies the prerequisites of the job; more specifically, whether "the 5 individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires." At step 6 two, we determine whether, "with or without reasonable accommodation," the individual is able to "perform the essential functions of such position." 29 C.F.R. § 7 1630.2(m). 8 Anthony v. Trax Int'l Corp., 955 F.3d 1123, 1127–28 (9th Cir. 2020). Further, "a person 9 who is totally disabled and therefore unable to perform her job, even with accommodation, 10 is not a 'qualified individual' under the ADA." Jett v. Longs Drug Stores Corp., 166 F.3d 11 1217 (9th Cir. 1999).1 12 Evidence presented at trial included Figueroa's testimony, doctor’s evaluations, and 13 disability benefits applications. Figueroa testified, when she went on leave in March, she 14 was unable to work because of medication she took. She also testified her physical 15 condition did not allow her to work. Additionally, Figueroa repeatedly represented that she 16 is unable to work due to her physical condition, remained out of work for several months, 17 reporting over and over that she could not work, and told MetLife, medical providers, and 18 Gannett that she could not work. 19 However, Figueroa also testified that, based on her past experience, she knew she 20 could perform the essential functions of the job. Further, after she was released to return 21 to work with two sets of limitations, she tried to return to work. The Ninth Circuit has 22 recognized "[t]here is no inconsistency between being totally disabled at a particular point 23 in time and in not being totally disabled at a later point in time." Smith v. Clark Cnty. Sch. 24 25 1Figueroa again argues Gannett should be estopped from arguing Figueroa was not 26 physically capable of performing the essential functions of her job. As the Court has previously stated, this argument "does not recognize that, as time passed and circumstances 27 changed, Defendants' position changed." Oct. 27, 2021 Order (Doc. 137, p. 2). The Court 28 declines to revisit this issue. 1 Dist., 727 F.3d 950, 957 (9th Cir. 2013); Cleveland v. Pol'y Mgmt. Sys. Corp., 526 U.S. 795, 2 796, (1999) ("An individual might qualify for SSDI under SSA's administrative rules and 3 yet, due to special individual circumstances, be capable of performing the essential functions 4 of her job. Or her condition might have changed over time, so that a statement about her 5 disability made at the time of her application for SSDI benefits does not reflect her 6 capacities at the time of the relevant employment decision."). 7 Although Gannett argues Figueroa's self-serving statements, without more, are 8 insufficient to overcome her admissions that she was unable to work, Physician Assistant 9 Kenneth Howard Judkins, II, testified he assessed Figueroa's return to work on June 7, 2017, 10 and approved her return to work with recommended restrictions. In other words, Figueroa's 11 testimony was not the only testimony establishing she was a qualified individual. 12 In light of evidence presented at trial, the Court cannot say it is clear the evidence 13 and inferences cannot reasonably support Figueroa. Erickson v. Pierce County, 960 F. 2d 14 801 (9th Cir. 1992). Further, the Court does not find the judgment is against weight of the 15 evidence or the trial was not fair to Gannet. Additionally, the Court does not find a 16 miscarriage of justice warranting a new trial. 17 18 B. Mitigation of Lost Wages 19 Gannett asserts substantial evidence does not support Figueroa mitigated her lost 20 wages by looking for a new job. Indeed, "[a]s a broad proposition, injured parties are 21 expected to mitigate the damage they suffer." Sangster v. United Air Lines, Inc., 633 F.2d 22 864 (9th Cir. 1980). 23 The jury in this case was instructed: 24 Plaintiff has a duty to use reasonable efforts to mitigate damages as to wages. To mitigate means to avoid or reduce damages. 25 Defendants have the burden of proving by a preponderance of the evidence: 26 1. that Plaintiff failed to use reasonable efforts to mitigate 27 damages; and 28 1 2. the amount by which damages would have been mitigated. 2 Jury Instructions (Doc. 267, p. 4). The evidence presented at trial established that, as of her 3 termination, Figueroa was able to perform the essential functions of her job. Evidence was 4 also presented that Figueroa believed she suffered both physical and mental deterioration 5 as a result of the termination of her position and Gannett's assertions she had resigned. In 6 such circumstances, the jury could have found that Figueroa's reasonable efforts to mitigate 7 damages as to wages did not necessarily require looking for a new job. 8 Gannett argues Figueroa did not mitigate her lost wages. However, this does not 9 consider whether the lack of effort was reasonable in this case in light of Figueroa's 10 changing circumstances. Rather, in these circumstances, reasonable efforts to mitigate did 11 not require Figueroa to seek other employment. Although Gannett argues the law is clear 12 that Figueroa was "required to look for a new job." Motion (Doc. 306, p. 11), Gannett has 13 not provided this Court with any authority that requires such action without any 14 consideration of what reasonable efforts are in the circumstances. For example, in 15 Teutscher v. Woodson, 835 F.3d 936, 947 (9th Cir. 2016), a case relied upon by Gannett, 16 the court pointed out that a plaintiff must make reasonable efforts to mitigate the damages 17 paid by an employer by seeking suitable alternative employment. In other words, the jury 18 and this Court must consider reasonable efforts with the facts of this case. The jury was 19 able to evaluate the credibility of Figueroa. Further, the burden was on Gannett to establish 20 a lack of reasonable efforts by Figueroa to mitigate damages. The Court cannot say "the 21 evidence, construed in the light most favorable to the [Figueroa], 'permits only one 22 reasonable conclusion, and that conclusion is contrary to the jury's verdict.'" Keates, 846 23 F. App'x at 630. The Court does not find the judgment is against the weight of the evidence 24 or the trial was not fair to Gannett. Additionally, the Court does not find a miscarriage of 25 justice warranting a new trial. 26 . . . . . 27 28 1 C. Confusion of the Jury 2 Gannett argues the jury's confusion about mitigation of wages affected the entire 3 verdict. Although Gannett had requested the jury instruction regarding mitigation include 4 the statement, "In the employment context, mitigating damages means actively seeking 5 alternative employment[,]" Def. Ins. (Doc. 218, p. 5), the Court included the Model Civil 6 Jury Instruction 5.3, which does not include the additional language. In other words, 7 although case law has discussed seeking employment to establish mitigation, the Ninth 8 Circuit declined to include such a requirement in the relevant instruction. Indeed, numerous 9 cases discussing mitigation in the employment context recognize an employee has a duty to 10 make "'reasonable efforts' to obtain employment." Haeuser v. Dept. of Law, 368 F.3d 1091, 11 1100 (9th Cir. 2004). In this case, considering reasonable efforts necessarily included 12 consideration of all the facts of this case, including Figueroa's condition. 13 Simply put, the Court does not agree with Gannett's argument the jury (and this 14 Court) erred in considering other factors in determining whether Figueroa made reasonable 15 efforts to mitigate her damages. The Court cannot say "the evidence, construed in the light 16 most favorable to the [Figueroa], 'permits only one reasonable conclusion, and that 17 conclusion is contrary to the jury's verdict.'" Keates, 846 F. App'x at 630. Further, the 18 Court does not find the judgment is against weight of the evidence or the trial was not fair 19 to Gannet. Additionally, the Court does not find a miscarriage of justice warranting a new 20 trial. 21 22 D. Punitive Damages 23 Gannett argues the punitive damages award should be vacated because it did not act 24 with malice or reckless disregard. Even if substantial evidence exists to support the 25 judgment, Gannett asserts a new trial should nonetheless be ordered because the punitive 26 damages award is against the weight of the evidence and that determination affected the 27 entire trial. 28 1 To recover punitive damages, a Title VII plaintiff must show that the employer 2 engaged in discrimination "with malice or with reckless indifference to the federally 3 protected rights of [the plaintiff]." 42 U.S.C. § 1981a(b)(1). The Supreme Court has 4 rejected the argument that punitive damages are available only in cases of an employer's 5 "egregious" conduct. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534 (1999). Rather, a 6 finding of "malice" or "reckless disregard" hinges on an employer's "knowledge that it may 7 be acting in violation of federal law, not its awareness that it is engaging in discrimination." 8 Id. at 526, 535; see also id. at 536 (Employer may be liable for punitive damages where it 9 "discriminate[s] in the face of a perceived risk that its actions will violate federal law."). 10 As pointed out by Gannett, "in the punitive damages context, an employer may not be 11 vicariously liable for the discriminatory employment decision of managerial agents where 12 these decisions are contrary to the employer’s 'goodfaith efforts to comply with Title VII.'" 13 Id. at 544-45. 14 The jury could have determined from the evidence presented in this case that Gannett 15 acted in the face of a perceived risk that its actions would violate federal law. Indeed, the 16 evidence was contradictory as to whether Figueroa had resigned. For example, Felipe 17 Lundin testified as to a conversation he had with Figueroa. He drafted an email on June 21, 18 2017, in which he summarized the June 20, 2017, conversation he had Figueroa; he testified 19 that it was his intention "to reflect and include everything that occurred during [his] 20 conversation with [Figueroa]" and did not purposely leave anything out of the email. Nov. 21 18, 2022, Transcript ("11/18/22 TR) (Doc. 250, pp. 14-16). He testified neither he nor 22 Figueroa used the words "quit" or "resign." Id. at 16. However, Figueroa testified that on 23 June 20, 2017, she told Lundin that she had to call Social Security to advise them she was 24 returning to work. November 16, 2022 Transcript ("11/16/22 TR") (Doc. 251, p. 41). 25 Figueroa also testified that, after she had been advised on June 20, 2017, by Lundin to return 26 to work on June 21, 2017, at the regular start time (10:00 a.m.) she informed Lundin she 27 would return to work. Id. at 40-41. 28 1 Further, Lundin testified that, after 10:00 a.m. on June 21, 2017, he had been 2 instructed to call Figueroa and advise her that her resignation had been accepted to pursue 3 Social Security. Lundin also testified that Figueroa had told him she would pursue Social 4 Security Disability and would "do what they specifically told her to do." 11/18/22 TR (Doc. 5 250, p. 23); see also id. at 19; Figueroa had told him she was only 10-15 minutes away from 6 work and she was on her way to work. Id. at pp. 16, 18. Figueroa testified she would not 7 have pursued Social Security benefits if she had been permitted to return to work with 8 accommodations. 11/16/22 TR (Doc. 251, p. 39). 9 As stated by Gannett, evidence indicated it had consistently accommodated Figueroa's 10 requests for reasonable accommodations. However, when Figueroa sought to return to work 11 on June 8, 2017, she was informed to remain off of work while Gannett considered the 12 doctor's release which outlined her work restrictions. Shortly thereafter, and after Gannett 13 received an updated release from the doctor and the conversation with Lundin, Gannett 14 deemed Figueroa to have resigned her position. The jury could have found Figueroa did not 15 resign, but that Gannett forced the resignation on her. In effect, the jury had to determine 16 the credibility and significance of the witnesses/evidence regarding the Social Security 17 Disability references. Viewing the evidence in a light most favorable to Figueroa, sufficient 18 evidence supports a finding Figueroa did not resign. From this evidence the jury could 19 reasonably reach a conclusion that Gannett acted with malice or with reckless indifference. 20 Such a conclusion is not contrary to the jury's verdict. 21 Further, although a reasonable inference from the evidence could lead to a conclusion 22 that the belief Figueroa was resigning was based on a misunderstanding, reasonable 23 inferences could also lead to a conclusion that Gannett knew it was acting in violation of 24 federal law when Figueroa did not appear for work that morning and Lundin was instructed 25 to advise Figueroa her resignation had been accepted.2 In these circumstances, the Court 26 27 2Lisa Cote testified that 10:00 a.m. was not a specific deadline for Figueroa to appear 28 back to work. Nov. 17, 2022 Transcript (Doc. 249, p. 14). Lundin similarly testified. Id. at 1 does not find the judgment is against weight of the evidence or the trial was not fair to 2 Gannet. Additionally, the Court does not find a miscarriage of justice warranting a new 3 trial. 4 The Court finds it appropriate to deny the Renewed Motion for Judgment as a Matter 5 of Law and Motion for New Trial (Doc. 306). 6 7 IV. Motion for Attorney's Fees (Doc. 295) and Supplemental Request (Doc. 312) 8 Figueroa requests a total award of $775,423.00 for attorney's fees through October 9 3, 2022 (987.8 hours at $785/hour). Reply (Doc. 312, p. 6). Figueroa seeks an award 10 pursuant to the provisions of the Arizona Civil Rights Act ("ACRA") (A.R.S 41-1481.J.), 11 the Americans with Disabilities Act ("ADA") (42 USC 2000e-5(k)), Fed.R.Civ.P. 37c (2) 12 for Defendant’s refusal to admit multiple requests for admissions. See also LRCiv 54.1 and 13 54.2. 14 15 A. Verbal Fee Agreement 16 Gannett asserts the request should be denied as a matter of public policy. 17 Specifically, Gannett asserts there was no written fee agreement between Figueroa and her 18 attorney as required by R.Sup.Ct.Ariz. 42, Ariz.R.Prof.Cond. ("ER") 1.5(c). That rule 19 provides inter alia: 20 A fee may be contingent on the outcome of the matter for which the service is rendered. . . . A contingent fee agreement shall be in a writing signed by the client 21 and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, 22 trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is 23 calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon 24 conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, 25 showing the remittance to the client and the method of its determination. 26 Id. The Motion states: 27 28 29. 1 The undersigned represented Plaintiff in previous matters. We did not enter a written fee agreement. We agreed in the case of a favorable result, the undersigned would 2 request the maximum amount for an award of attorney’s fees under ADA or ACRA. 3 Motion (Doc. 295, p. 4). The parties disagree whether this agreement constitutes a 4 contingency fee agreement requiring compliance with ER 1.5(c). 5 Gannett asserts, under the agreement, counsel would only be compensated should a 6 favorable result be obtained. In other words, the fee was contingent on a favorable 7 outcome. Gannett points out that, "[i] the absence of a written contingent fee agreement, 8 an attorney should anticipate that work done in violation of ER 1.5(c) is being undertaken 9 without any meaningful expectation of compensation. Levine v. Haralson, Miller, Pitt, 10 Feldman & McAnally, P.L.C., 244 Ariz. 234, 239 (App. 2018) ("unwritten contingent fee 11 agreements are void as against public policy"). 12 Figueroa argues, however, that both the verbal fee agreement and applicable federal 13 and state discrimination laws allow for an award of attorney's fees by the establishment of 14 Gannett's liability for its wrongful discrimination. A plain reading of ER 1.5(c) and the 15 summarized verbal agreement between Figueroa and her attorney establish the agreement 16 was contingent upon a favorable result. Further, ER 1.5(c) sets forth exceptions for the 17 written requirement, none of which are applicable in this case. 18 However, ER 1.5 addresses the ethical requirements of counsel, not whether an 19 award of attorney's fees should be awarded. Indeed, Arizona's Ethical Rules "are designed 20 to prevent harm and protect clients." Levine, 244 Ariz. 234 at 238; see also Rodriguez v. 21 West Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009); Image Tech. Serv., Inc. v. 22 Eastman Kodak Co., 136 F.3d 1354, 1358 (9th Cir. 1988). In Levine, where the suit was 23 between an attorney and a former client, the court determined a verbal contingency fee 24 agreement was against public policy. Here, however, Figueroa's affidavit establishes she 25 does not believe she was harmed by the agreement. The verbal fee agreement in this case 26 and a potential fee award does not implicate the public policy discussed in Levine and 27 similar cases. 28 1 The Court finds the verbal fee agreement, as well as the possible ethical violation, 2 does not affect Figueroa's ability to seek an award of fees from Gannett. 3 4 B. Prevailing Party 5 Under the ACRA and the ADA, attorneys' fees may be awarded to "the prevailing 6 party." See A.R.S. § 41-1481.J ("the court may allow the prevailing party . . . a reasonable 7 attorney fee as part of the costs"); 42 U.S.C. § 2000e–5(k) (the court "in its discretion, may 8 allow the prevailing party . . . a reasonable attorney's fee . . . as part of the costs"). 42 U.S.C. 9 § 2000e–5(k). Accordingly, the Court must first determine which party is the prevailing 10 party. 11 The Ninth Circuit applies the same "prevailing party" analysis articulated by the 12 Supreme Court to requests for costs under Rule 54(d) and requests for attorneys' fees in civil 13 rights actions. See Miles v. California, 320 F.3d 986, 989 (9th Cir. 2003). A plaintiff 14 prevails "when actual relief on the merits of his claim materially alters the legal relationship 15 between the parties by modifying the defendant's behavior in a way that directly benefits the 16 plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Additionally, the Supreme Court 17 has stated relief "on the merits" occurs when the material alteration of the parties' legal 18 relationship is accompanied by "judicial imprimatur on the change." Buckhannon Bd. & 19 Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001). In 20 other words, a plaintiff is the prevailing party if he obtains "[a] judgment for damages in any 21 amount" because that judgment "modifies the defendant's behavior for the plaintiff's benefit 22 by forcing the defendant to pay an amount of money he otherwise would not pay." Farrar, 23 506 U.S. at 113. 24 In this case, Figueroa prevailed on the claims presented to the jury and was awarded 25 compensatory and punitive damages. Based on this award of damages, the Court finds 26 Figueroa is the prevailing party and is eligible for an award of attorney's fees. 27 28 1 V. Reasonable Attorney's Fees 2 The Court, in its discretion may allow a prevailing party "reasonable attorney's fees 3 (including expert fees) as part of the costs[.]" 42 U.S.C. § 2000e-5(k); see also A.R.S. § 41- 4 1481.J. Factors to consider in determining whether attorneys’ fees are reasonable include: 5 (A) The time and labor required of counsel; 6 (B) The novelty and difficulty of the questions presented; 7 (C) The skill requisite to perform the legal service properly; 8 (D) The preclusion of other employment by counsel because of the acceptance of the action; 9 (E) The customary fee charged in matters of the type involved; 10 (F) Whether the fee contracted between the attorney and the client is fixed or 11 contingent; 12 (G) Any time limitations imposed by the client or the circumstances; 13 (H) The amount of money, or the value of the rights, involved, and the results obtained; 14 (I) The experience, reputation and ability of counsel; 15 (J) The "undesirability" of the case; 16 (K) The nature and length of the professional relationship between the attorney and 17 the client; 18 (L) Awards in similar actions; and 19 (M) Any other matters deemed appropriate under the circumstances. 20 LRCiv 54.2(c). 21 22 A. Time and Labor, Novelty, Skill 23 This case involved protracted discovery, extensive motion practice, and two jury trial 24 (including one bifurcated trial). This required a significant expenditure of time by counsel. 25 The claims addressed in this case were not novel, but did involve inquiring into whether 26 Gannett provided a pretextual reason for its action. While this case may have been slightly 27 more involved than the typical discrimination suit, contrary to Figueroa's assertion, the Court 28 1 does not find this case was particularly difficult or complex. Additionally, the time 2 expended in this case was over a protracted amount of time and should not have precluded 3 other employment. 4 In her motion, Figueroa asserts 987.8 hours were expended in Figueroa's case. 5 Generally, the Court finds this a reasonable amount of time and labor for counsel's 6 representation of Figueroa in this matter. However, as discussed infra, the Court does find 7 some entries unreasonable. 8 9 B. Customary Fee in Similar Matters / Reasonable Rate 10 "In determining what constitutes a reasonable hourly rate, the Court looks to the 11 prevailing market rates in the relevant community 'for similar work performed by attorneys 12 of comparable skill, experience, and reputation.'" Sw. Fair Hous. Council v. WG Scottsdale 13 LLC, No. CV-19-00180-TUC-RM, 2022 WL 16715613, at *4 (D. Ariz. Nov. 4, 2022) 14 Figueroa's attorney claims a rate of $785.00 per hour for his services. Recent case law 15 indicates this is not a reasonable rate in the Tucson, Arizona, market. See e.g. id. (hourly 16 rate of $425); Bell v. VF Jeanswear LP, No. CV-14-01916-PHX-JJT, 2019 WL 1409433 17 (D. Ariz. Mar. 28, 2019), aff'd in part, rev'd in part and remanded, 819 F. App'x 531 (9th 18 Cir. 2020); (hourly rate of ($515); Everts v. Sushi Brokers LLC, No. 19 CV-15-02066-PHX-JJT, 2018 WL 3707923, at *2 (D. Ariz. Aug. 3, 2018) ($280 per hour 20 for a senior partner, $240 per hour for associates); Davis v. White Mountain Communities 21 Hosp., Inc., No. 3:15-CV-8080-HRH, 2016 WL 1578747, at *2 (D. Ariz. Apr. 19, 2016) 22 (hourly rate of $220); Ameriprise Fin. Servs. Inc. v. Ekweani, No. CV-14-00935-PHX-DGC, 23 2015 WL 3823302, at *3 (D. Ariz. June 19, 2015), aff'd, 683 F. App'x 641 (9th Cir. 2017) 24 (hourly rate of $230). 25 The Court also consider the expertise of counsel. See e.g., Sw. Fair Hous. Council, 26 2022 WL 16715613, at *1, citing Hensley v. Eckhart, 461 U.S. 424, 429 (1976). Counsel's 27 declaration does not establish that he has significant experience or expertise with 28 1 employment discrimination matters. Additionally, the Court agrees with Gannett that 2 counsel's failure to comply with ethical requirements (although an insufficient basis to 3 preclude an award) is relevant in determining a reasonable rate. Rodriguez v. West 4 Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009). 5 Figueroa cites to a number of cases that allow for a rate in the range of what is 6 sought by Figueroa. However, many of the cited cases are from other jurisdictions. Further, 7 most of the Arizona cases involved counsel practicing in the Phoenix, Arizona, market. See 8 e.g. Erwig v. Comm'r of Soc. Sec. Admin., No. CV-20-00338-PHX-DGC, 2022 WL 9 3577273, at *1 (D. Ariz. Aug. 19, 2022); Koch v. Desert States Emps. & UFCW Unions 10 Pension Plan, No. CV-20-02187-PHX-DJH, 2021 WL 6063534, at *1 (D. Ariz. Dec. 22, 11 2021). Additionally, the only case cited by Figueroa that includes fees for Tucson counsel 12 involved a Phoenix case, an attorney with extensive experience in the area of law relevant 13 to the case, see John E. Phillips website, http://www.johnephillips.com/, and a written 14 contingency fee agreement. The Court in that case stated the was "in line with effective 15 hourly rates previously approved by the Ninth Circuit." Chisholm v. Comm'r of Soc. Sec. 16 Admin., No. CV-19-08010-PCT-JAT, 2022 WL 1569074, at *2 (D. Ariz. May 18, 2022). 17 While such fees may be in line with an attorney with extensive experience in the relevant 18 area-of-law and comparable market, such is not the case in this matter. 19 The Court finds a $450 per hour for work performed by Figueroa's counsel is 20 reasonable. 21 Additionally, it is not reasonable to charge an experienced attorney rate for clerical 22 tasks and the Court will preclude those tasks from reimbursement. See e.g., Bodine v. 23 Comm'r of Soc. Sec. Admin., No. CV-21-00721-PHX-DWL, 2023 WL 243966, at *2 (D. 24 Ariz. Jan. 18, 2023); Lexington Insurance Co. v. Scott Homes Multifamily Inc., 2016 WL 25 5118316, *16 (D. Ariz. 2016) (excluding entries for printing, e-filing and downloading).3 26 27 3The Court notes the case law varies as to whether obtaining service of process is a 28 compensable expense. In a different context, the Ninth Circuit has determined it is 1 Further, because Figueroa did not provide a paralegal/administrative assistant rate, some 2 courts may decline to award any fee for such tasks. See e.g. Scottsdale Gas Co. LLC, v. 3 Tesoro Ref. & Mktg. Co. LLC, No. CV-19-05291-PHX-SPL, 2021 WL 2895501, at *5 (D. 4 Ariz. July 9, 2021). However, this Court finds it appropriate to award fees for paralegal 5 tasks at an hourly rate of $150.00. See e.g. Sw. Fair Hous. Council, 2022 WL 16715613, 6 at *5 (reasonable hourly rate for paralegals and law clerks is $125.00). 7 Gannett also argues that block billing is not permitted. See e.g. Advanced 8 Reimbursement Sols. V. Spring Excellence Surgical Hosp., LLC, No. 9 CV-17-01688-PHX-DWL, 2020 WL 2768699, at *6 (D. Ariz. May 28, 2020). However, 10 "courts tend to award fees despite the presence of block-billing where the billing is for 11 'closely related tasks, each covering no more than a few hours.'" As summarized infra, 12 block billed tasks that are not closely related will be precluded from the award. Similarly, 13 entries that do not include adequate description may reduce an award. Herrera-Amaya v. 14 Arizona, No. CV-14-02278-TUC-RM, 2019 WL 2724059, at *5 (D. Ariz. June 28, 2019), 15 citing LRCiv 54.2(e)(2). Such entries will be precluded from the award. 16 17 C. Amount of Money / Value of Rights / Results Obtained 18 The amount of money involved in this case was limited by statutory caps. However, 19 the Court finds the value of a successful litigation regarding discrimination to be significant. 20 The imposition of punitive damages by the jury confirms this significance. 21 22 compensable for purposes of an attorney's fees award. Trustees of Directors Guild of 23 Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 426 (9th Cir. 2000), but see Neil v. Comm'r of Soc. Sec., 495 Fed. Appx. 845, 847 (9th Cir. 2012) (holding that "the 24 district court did not abuse its discretion in declining to award [plaintiff] attorney's fees for purely clerical tasks such as filing documents and preparing and serving summons"); see also 25 Compass Bank v. Morris Cerullo World Evangelism, No. 13:CV-0654-BAS (WVG), 2015 26 WL 3442030, at *8 (S.D. Cal. May 28, 2015) (reducing billing entries due to a finding that "certain tasks were ministerial and did not require an attorney to perform[,]" including 27 drafting a revised subpoena, preparing instructions for service, and phone calls and emails 28 to reschedule deposition). The Court declines to disallow such entries on this basis alone. 1 2 D. Nature and Length of Relationship Between Attorney and Client 3 Figueroa and counsel maintained a professional relationship for almost thirty years. 4 5 E. Claimed Unnecessary Motion Practice 6 Gannett asserts Figueroa's attempt to obtain fees for unnecessary motion practice 7 should be denied. Although some motions have been denied, it is the nature of litigation 8 that parties seek to have interests and issues clarified by motion practice. The Court 9 declines to disallow such requests simply because opposing counsel deems such requests 10 unnecessary. 11 12 VI. Fed.R.Civ.P. 37(c)(2) 13 The discovery rules provide for possible sanctions, including reasonable expenses 14 (including attorney's fees) caused by a failure to disclose or supplement. Figueroa states in 15 the first paragraph of her motion that she is seeking an award of attorney's fees pursuant to 16 the applicable rule. See Fed.R.Civ.P. 37(c)(2). However, Figueroa fails to clarify which, 17 if any, of the requested fees should be pursuant to this authority. The Court declines to 18 award Figueroa attorney's fees based on Fed.R.Civ.P. 37(c)(2). 19 20 VII. Consideration of Specific Entries/Tasks 21 In light of the foregoing considerations and conclusions, the Court finds some entries 22 to be unreasonable. The hourly rate requested for all tasks is $785.00. As previously stated, 23 the Court finds a reasonable hourly rate for counsel to be $550.00 and, for paralegal tasks, 24 $150.00 per hour. The Court considers that some entries appear to include mixed clerical, 25 paralegal, and attorney tasks. The Court uses its discretion to determine what is a 26 reasonable award for such tasks. 27 28 1 Date Task Hours Amount Reason 2 11/6/18 Prep summons and initiate service on .6 $471 paralegal Agent reduced 3 to $90 4 11/6/18 Preparation FASTAR Certificate .3 $235.50 clerical reduced 5 to $0 6 2/15/19 Preparation of Initial Disclosure, 3.3 $2950.50 block billing conference with client and file review reduced 7 to $0 4/30/19 File review; preparation of discovery to 4.1 $3218.00 block billing 8 defendants reduced to $0 9 11/14/19 Review and chronology of Arizona 6.4 $5024.00 paralegal 10 State E-mail Disclosures reduced to $960 11 3/20/19 R/R 6 page case management order, .8 $628 block billing 12 calendar deadlines reduce by with clerical 1/4 13 12/6/19 Prepared Correspondence re: .5 $392.50 block billing 14 Depositions reduced with clerical to $0 15 1/9/20 Review deposition transcripts and 3.2 $2512.00 block billing disclosure matters in preparation of reduced 16 heating before magistrate and to $0 attendance at hearing 17 1/14/20 Research memo compelling 9.1 $5024.00 paralegal 18 disclosure attorney-client advice; reduced assemble multiple excerpts and to $1365 19 records as exhibits 20 1/15/20 Prepared Request for Settlement Conf. .5 $392.50 clerical reduced 21 to $0 22 1/15/20 Insertion of Request for Admissions 1.5 $1177.50 paralegal into Chronology reduced 23 to $225 2/28/20 Insert extensive and detailed 8.8 $6908.00 paralegal 24 statements and positions from reduced Plaintiff, Cote, Lundgren, 2 depos, to $1320 25 Lundin, other defensive witnesses, statements from attorneys and 26 pleadings, interrogatories, admissions into CaseSoft 27 28 1 3/6/20 Review of Defendant's MSJ, dictation 3.8 $2826.00 block billing of summary and contact with Natalie. reduced 2 to $0 3 4/16/20 Review and categorize Cote 5.3 $4160.50 block billing Deposition, Insert into Reply Opp, and reduced 4 Conference with Dr. Proust to $0 5 6/26/20 Review re: Damages claim, 2.7 $2119.50 block billing interview with client, e-mails re: reduced 6 hearing in federal court to $0 7 7/1/20 Conference with client, Supplement 4.8 3768.00 block billing to Settlement Statement: damages reduced 8 and injury, prep for MSJ Hearing to $0 1/29/21 Motion for Reconsideration with 3.8 $2983.0 block billing 9 details and timeline. Plaintiff reduced requests for policies/guidelines to $0 10 8/16/21 Preparation of subpoenas to Ms. Cote .6 $471.00 clerical 11 and Ms. Spears reduced to $0 12 11/3/21 Organize job appraisals and job 3.0 $2355.00 paralegal 13 descriptions as exhibits, fn omitted reduced to $450 14 11/5/21 Prepare trial subpoenas and 1.0 $785.0 block billing 15 correspondence for Lisa Cote and Dr. reduce by with clerical Randall Prust 3/4 16 11/13/21 Search for Prust and Judkins and 4.5 $3532.50 clerical Rincon Medical, which office was reduced 17 closed and subpoena could not be to $0 served. Multiple attempted 18 communications 19 11/29/21 Conference with client re strategy, 4.6 $1256.00 block billing review pleadings and additional legal reduced 20 research re admissibility disability to $0 benefits. 21 4/27/22 Research and request first trial 4.5 $549.50 block billing 22 transcripts from court reporter reduced with clerical to $0 23 5/26/22 Continue review and assembly of 3.3 $2590.50 paralegal 24 Plaintiffs and Defendants exhibits reduced to $495 25 5/26/22 Re-organization exhibits 31 and 32 at 1.0 $785.00 paralegal - 30/22 request of Defendant, fn omitted reduced 26 to $150 27 28 1 7/20//22 Travel to courthouse to return Jury 2.4 $1884.00 block billing pool flash drive and review reduced with clerical 2 transcripts of testimony at court to $0 terminal 3 4 The Court finds 49.85 hours to not be allowed at the attorney rate of pay ($450/hour) 5 and that 33.7 hours to be allowed only at a paralegal rate of pay ($150/hour). The Court 6 finds, therefore, an award of attorney's fees for $406,912.50 is appropriate for work 7 completed by counsel (904.25 hours). Further, the Court finds an additional award of 8 $5,055.00 is appropriate for paralegal tasks (33.7 hours). The Court concludes Figueroa is 9 entitled to a total award of $411,967.50 for attorney's fees. 10 11 VIII. Costs 12 "Unless a federal statute, [the Federal Rules of Civil Procedure], or a court order 13 provides otherwise, costs – other than attorney's fees – should be allowed to the prevailing 14 party." Fed.R.Civ.P. 54(d)(1). "Rule 54(d) creates a presumption in favor of awarding 15 costs to prevailing parties, and it is incumbent upon the losing party to demonstrate why the 16 costs should not be awarded." Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 17 1999). Here, Gannett asserts the award for costs should be limited because Figueroa failed 18 to comply with the local rule. See LRCiv 54.2; Grove v. Wells Fargo Fin. Cal., Inc., 606 19 F.3d 577, 582 (9th Cir. 2010) (upholding denial of taxable costs where party "failed to 20 comply with the local rules governing motions for taxable costs"); Gary v. Carbon Cycle 21 Ariz. LLC, 398 F. Supp. 3d 468, 481 (D. Ariz. 2019) ("failure to strictly comply with the 22 requirements of Fed. R. Civ. P. 54(d) and LRCiv 54.1 is fatal to . . . request for taxable 23 costs[;]" court may excuse failure to comply). 24 Here, Figueroa's Bills of Costs include both taxable and non-taxable costs. See e.g., 25 28 U.S.C. § 1920 (Taxable costs are " (1) Fees of the clerk and marshal; (2) Fees for printed 26 or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and 27 disbursements for printing and witnesses; (4) Fees for exemplification and the costs of 28 1 making copies of any materials where the copies are necessarily obtained for use in the case; 2 (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed 3 experts, compensation of interpreters, and salaries, fees, expenses, and costs of special 4 interpretation services under section 1828 of this title."); 42 U.S.C. § 1988. 5 The Clerk of Court granted the request for an award of costs for taxable items: 6 $373.44 for fees of the Clerk and $196.00 for service of summons and subpoenas. The 7 Clerk also awarded costs of deposition transcripts ($357.70 (invoice #11531), $329.45 8 (invoice # 11661), $708.50 (invoice #2667), $163.90 (invoice #11675), but did not permit 9 reporting services fees and exhibits as non-taxable. The non-taxable portion of the 10 transcript request denied is $481.25. The Clerk also denied the request for $742.50 for fees 11 and disbursements for printing and $216.00 for trial transcripts for the use of counsel as 12 non-taxable. Lastly, the requested award for fees was reduced to $120 because the fees for 13 expert witnesses are not taxable in a greater amount than that statutorily allowed for 14 ordinary witnesses. 15 As to witness fees, Figueroa requests costs attributed to a meeting with potential 16 witness Dr. Randall Prust in the amount of $300.00 (8/28/20) and attendance of court 17 proceedings by Kenneth Judkins, P.C., in the amount of $1,000.00 (9/28/22). Figueroa has 18 provided documentation to support these requests. However, Figueroa also seeks $1,800.00 19 for witness Dan Myers and does not provide any documentation for this request. 20 Although blending the requests for taxable and non-taxable items is not in 21 compliance with the local rule, the Court may excuse a failure to fully comply with the local 22 rule. Gary, 398 F. Supp. 3d at 481. However, the Court will limit the award of costs to 23 those costs which are supported by documentation. Therefore, the Court will award 24 Figueroa $2659.75 for non-taxable costs. 25 26 IX. Conclusion 27 The Court finds it appropriate to grant Figueroa's request for an award of attorney's 28 1 || fees in the amount of $411,967.50. The Court further finds it appropriate to award Figueroa 2 || an award of non-taxable costs in the amount of $2659.75. 4 Accordingly, IT IS ORDERED: 5 1. The Request for an Order to Clerk to Maintain File Open to Allow Plaintiff 6 || to Move for Attorney's Fees and Costs (Doc. 294) is DENIED. 7 2. The Motion for Extension of Time (Doc. 310) is GRANTED. 8 3. The Renewed Motion for Judgment as a Matter of Law and Motion for New 9 || Trial (Doc. 306) is DENIED. 10 4. The Motion for Attorney's Fees (Docs. 295, 296, 298, 301) is GRANTED IN 11 | PART AND DENIED IN PART. 12 5. Figueroa is awarded attorney's fees in the amount of $411,967.50. Figueroa 13 || is awarded non-taxable costs in the amount of $2659.75. 14 6. The Clerk of Court shall enter an amended judgment against Defendants and 15 || in favor of Plaintiff for combined compensatory and punitive damages of $300,000, back 16 || pay, along with pre-judgment interest through the date of the original judgment, in the 17 || amount of $93,457.04, attorney's fees in the amount of $411,967.50, and non-taxable costs 18 || in the amount of $2659.75. 19 DATED this 9th day of March, 2023. 20 A. ig L On gorsnore? 22 Cindy K. Jor§€énso 33 United States District Judge 24 25 26 27 28 -23-