Lenk v. Monolithic Power Systems, Inc.

Opinion

1 \ 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 KENNETH LAWRENCE LENK, Case No. 20-cv-08094-BLF

9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 10 v. MOTION FOR PREVAILING PARTY ATTORNEYS’ FEES AND COSTS 11 MONOLITHIC POWER SYSTEMS, INC., [Re: ECF 36] 12 Defendant.

14 15 Following dismissal of this action – the fourth that pro se Plaintiff Kenneth Lenk (“Lenk”) 16 has filed against his former employer, Defendant Monolithic Power Systems, Inc. (“MPS”) – MPS 17 filed the present Motion for Prevailing Party Attorneys’ Fees and Costs (“Fees Motion”). See 18 Fees Motion, ECF 34. Plaintiff Kenneth Lawrence Lenk (“Lenk”) has filed an opposition and 19 MPS has filed a reply. See Opp., ECF 39; Reply, ECF 40. The Court has vacated the hearing that 20 was noticed for March 24, 2022 and submitted the motion for decision without oral argument. See 21 Order Submitting Fees Mot., ECF 46. 22 MPS’s Fees Motion is GRANTED IN PART AND DENIED IN PART. MPS seeks 23 attorneys’ fees in the amount of $49,740 and costs in the amount of $215.30. The Court awards 24 attorneys’ fees in the amount of 25,000 and costs in the amount of $215.30. 25 I. BACKGROUND 26 Lenk has filed four unsuccessful lawsuits against MPS, claiming that he was subjected to 27 discrimination and other wrongful conduct that resulted in his constructive discharge from MPS in 1 Lenk I: In March 2015, Lenk sued MPS for wrongful constructive discharge from 2 employment and related claims under federal and state law. See Lenk v. Monolithic Power 3 Systems, Inc., Case No. 15-cv-01148-NC. The action was dismissed for failure to state a claim, 4 and the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) dismissed Lenk’s 5 appeal as frivolous. 6 Lenk II: In May 2016, Lenk filed a second suit against MPS, again alleging that he was 7 wrongfully discharged and asserting claims for violations of Title VII of the Civil Rights Act of 8 1964 and 42 U.S.C. § 1981. See Lenk v. Monolithic Power Systems, Inc., Case No. 16-cv-02625- 9 BLF. Lenk also named his former supervisor at MPS, Sciammas. See id. The action was 10 dismissed as barred by the doctrine of res judicata, and the Ninth Circuit affirmed the dismissal. 11 See Lenk v. Monolithic Power Sys., Inc., 754 F. App’x 554, 556 (9th Cir. 2018). This Court 12 awarded MPS attorneys’ fees in the amount of $17,582.50 and costs in the amount of $83.24. See 13 Lenk v. Monolithic Power Sys., Inc., No. 16-CV-02625-BLF. 14 Lenk III: In March 2018, Lenk filed a third suit against MPS, reasserting his claims for 15 wrongful discharge and violations of Title VII and § 1981, and also asserting claims under 42 16 U.S.C. § 1983, 42 U.S.C. § 1985, and California state law. See Lenk v. Monolithic Power Sys. 17 Inc., No. 19-CV-03791-BLF. Lenk named MPS, his former supervisor Sciammas, and MPS’s 18 former law firm as defendants. Lenk III was dismissed under the doctrine of collateral estoppel 19 and for failure to state a claim. Lenk did not appeal that dismissal. This Court denied MPS’s 20 motion for prevailing party attorneys’ fees and costs. 21 Lenk IV (present suit): In November 2020, Lenk filed the present suit against MPS, again 22 asserting claims for violations of Title VII and § 1981, as well as claims under California’s Fair 23 Employment and Housing Act (“FEHA”), claims of blacklisting under various states’ laws, and 24 claims of unfair competition, intentional interference with prospective economic advantage, and 25 unjust enrichment under California law. See Compl., ECF 1. This Court dismissed the operative 26 first amended complaint (“FAC”) by order dated November 10, 2021 (“Dismissal Order”), finding 27 that most claims were barred by res judicata, collateral estoppel, and statutes of limitations, and 1 II. LEGAL STANDARD 2 “It is the general rule in the United States that in the absence of legislation providing 3 otherwise, litigants must pay their own attorney’s fees.” Christiansburg Garment Co. v. EEOC, 4 434 U.S. 412, 415 (1978). “Congress has provided only limited exceptions to this rule under 5 selected statutes granting or protecting various federal rights.” Id. (internal quotation marks and 6 citation omitted). “Title VII of the Civil Rights Act of 1964 falls into this last category, providing 7 as it does that a district court may in its discretion allow an attorney’s fee to the prevailing party.” 8 Id. at 416. Although the statute itself does not distinguish between prevailing plaintiffs and 9 prevailing defendants, the Supreme Court has held that they are to be treated differently. See id. at 10 416-17. “[A] prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but special 11 circumstances.” Id. at 417. However, a prevailing defendant may be awarded fees under Title VII 12 only “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, 13 even though not brought in subjective bad faith.” Id. at 421. 14 Prevailing party attorneys’ fees also are available under 42 U.S.C. § 1981, see 42 U.S.C. § 15 1988(b), and FEHA, see Cal. Gov’t Code § 12965(c)(6). The Christiansburg standard discussed 16 above applies to fee awards under § 1981 and FEHA. See Miller v. Los Angeles Cty. Bd. of Educ., 17 827 F.2d 617, 619 (9th Cir. 1987) (Christiansburg standard governs award of attorneys’ fees 18 under 42 U.S.C. §§ 1981 and 1983); Williams v. Chino Valley Indep. Fire Dist., 61 Cal. 4th 97, 19 99-100 (2015) (Christiansburg standard governs award of attorneys’ fees under FEHA). 20 Even after finding a plaintiff’s claims to be frivolous, “the district court still retains 21 discretion to deny or reduce fee requests after considering all the nuances of a particular case.” 22 Thomas v. City of Tacoma, 410 F.3d 644, 651 (9th Cir. 2005) (internal quotation marks and 23 citation omitted). A court must take particular care in cases brought by pro se plaintiffs. See 24 Miller, 827 F.2d at 620. “[P]ro se plaintiffs cannot simply be assumed to have the same ability as 25 a plaintiff represented by counsel to recognize the objective merit (or lack of merit) of a claim.” 26 Id. Moreover, a district court “should consider the financial resources of the plaintiff in awarding 27 fees to a prevailing defendant,” particularly when a fee request against an individual plaintiff is a 1 III. DISCUSSION 2 MPS seeks an award of attorneys’ fees in the amount of $49,740 and costs in the amount 3 of $215.30, arguing that all of Lenk’s claims were frivolous, unreasonable, and groundless. In 4 opposition, Lenk argues that his claims were not frivolous, unreasonable, or groundless. Lenk 5 also states that he has not been employed since March 2013 and thus has little ability to pay any 6 award. 7 MPS is the prevailing party in this case, as all of Lenk’s claims have been dismissed 8 without leave to amend, the action has been dismissed with prejudice, and judgment has been 9 entered for MPS and against Lenk. See Dismissal Order, ECF 32; Judgment, ECF 33. As a result, 10 the Court clearly has discretion to award MPS attorneys’ fees and costs incurred in litigating 11 Lenk’s claims brought under Title VII, § 1981, and FEHA if the Court finds that the 12 Christiansburg standard is met. For the reasons discussed below, the Court finds that it also has 13 discretion to award MPS attorneys’ fees and costs incurred in litigating Lenk’s state law claims. 14 The Court first discusses whether Lenk’s claims were frivolous, unreasonable, or 15 groundless as required under Christiansburg. Next, the Court addresses MPS’s showing that the 16 requested fees and costs were reasonably incurred in defending this suit. Finally, the Court 17 considers Lenk’s pro se status and other factors relevant to the exercise of its discretion in 18 awarding prevailing party fees and costs to a defendant. 19 A. Lenk’s Claims were Frivolous, Unreasonable, or Groundless 20 Lenk filed the complaint in this action on November 16, 2020 and filed a FAC as of right 21 on March 8, 2021. See Compl., ECF 1; FAC, ECF 25. The FAC, which was the operative 22 pleading at the time the action was dismissed, contained eleven claims: (1) retaliation under Title 23 VII; (2) civil rights violation under 42 U.S.C. § 1981; (3) retaliation under FEHA; (4) harassment 24 under FEHA; (5) hostile work environment under FEHA; (6) blacklisting under California state 25 law; (7) blacklisting under Washington state law; (8) blacklisting under Arizona state law; (9) 26 violation of California’s Unfair Competition Law (“UCL”); (10) intentional interference with 27 prospective economic relations; and (11) unjust enrichment. FAC, ECF 25. 1 1. Claims 1-5 under Title VII, § 1981, and FEHA 2 Claims 1-5 of the FAC were brought under Title VII, § 1981, and FEHA. All of those 3 statutes contain fee shifting provisions which, under Christiansburg, authorize an award of fees 4 and costs to a prevailing defendant if the plaintiff’s claims were frivolous, unreasonable, or 5 groundless. See Christiansburg, 434 U.S. at 422. “In applying these criteria, it is important that a 6 district court resist the understandable temptation to engage in post hoc reasoning by concluding 7 that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or 8 without foundation.” Id. at 421-22. The Court has no difficulty finding that Claims 1-5 were 9 frivolous, unreasonable, or groundless when brought. 10 Claim 1 (Title VII): Claim 1 alleged retaliation under Title VII. The claim was dismissed 11 as barred by collateral estoppel based on the Court’s dismissal of a nearly identical Title VII claim 12 with prejudice in Lenk III. See Dismissal Order at 8, ECF 32. The only aspect of the Title VII 13 claim not barred by collateral estoppel was Lenk’s new assertion that MPS blacklisted him, which 14 was purely speculative and implausible. See id. at 8-9. Given the dismissal of a nearly identical 15 Title VII claim in Lenk III, and the absence of any facts whatsoever to support his new blacklisting 16 theory, it was clear at the time Lenk filed the present suit that Claim 1 was frivolous, 17 unreasonable, and groundless. 18 Claim 2 (§ 1981): Claim 2 alleged race discrimination under § 1981. The claim was 19 barred by res judicata based on the Court’s dismissal of an identical § 1981 claim with prejudice in 20 Lenk III. See Dismissal Order at 10. Lenk’s reassertion of the same claim in Lenk IV was 21 frivolous, unreasonable, and groundless. 22 Claim 3-5 (FEHA): Claims 3, 4, and 5 recast Lenk’s prior allegations of constructive 23 discharge, race discrimination, and retaliation as new claims under FEHA. The claims were 24 barred by collateral estoppel, were time-barred, and were devoid of factual support. See Dismissal 25 Order at 10-13. Lenk’s attempt to recast claims previously rejected by the Court in Lenk III was 26 frivolous, unreasonable, and groundless. 27 2. Claims 6-11 under State Law 1 civil rights claims) under the civil rights fee statutes discussed above. The availability of fees for 2 defending the state law claims is not squarely addressed by MPS. Whether fees for state law 3 claims are available under civil rights fee shifting statutes is an open question in the Ninth Circuit. 4 See Harris v. Maricopa Cty. Superior Ct., 631 F.3d 963, 976 n.6 (9th Cir. 2011). In Harris, the 5 Ninth Circuit observed that the Seventh Circuit allows recovery of attorneys’ fees for pendant state 6 law claims under federal civil rights fee statutes where the state law claims arose under a common 7 nucleus of operative fact with a substantial federal claim. See id. (citing Munson v. Milwaukee Bd. 8 of Sch. Dirs., 969 F.2d 266, 271-72 (7th Cir. 1992). The Ninth Circuit declined to decide the 9 issue, which had not been raised in the appeal before it. See id. 10 Absent guidance from the Ninth Circuit, each district court “must decide for itself whether 11 to award fees for both the frivolous federal civil rights claims and the interrelated frivolous state 12 law claims” to a prevailing defendant. Crane-McNab v. Cty. of Merced, 773 F. Supp. 2d 861, 884 13 (E.D. Cal. 2011). In Crane-McNab, the district court awarded the prevailing defendant fees spent 14 defending frivolous § 1983 claims and frivolous state law claims that arose from the same set of 15 facts as the § 1983 claims. See id. at 884-885. The Crane-McNab court reasoned that since 16 prevailing plaintiffs in civil rights actions may recover fees for state law claims that are 17 interrelated with substantial federal claims, prevailing defendants should be able to do so as well. 18 See id. Other district courts within the Ninth Circuit have treated federal and state law claims as 19 one action for purposes of fee awards when the claims are factually or legally related. See, e.g., 20 McAnally v. Clark Cty., No. 0204CV01220LRHLRL, 2006 WL 240896, at *1 (D. Nev. Jan. 27, 21 2006). 22 This Court finds these cases, and the Seventh Circuit’s Munson decision, to be persuasive 23 and finds that it has discretion to award MPS attorneys’ fees spent defending Lenk’s state law 24 claims if those claims arose out of the same facts as Lenk’s federal civil rights claims and were 25 frivolous, unreasonable, and groundless. 26 Claims 6-8 (Blacklisting): Claims 6, 7, and 8 alleged blacklisting under California law, 27 Washington law, and Arizona law, respectively. The state law blacklisting claims were based on 1 blacklisting conduct. The Court dismissed the state law blacklisting claims as implausible, 2 pointing out that Lenk had not alleged any facts giving rise to an inference that MPS blacklisted 3 him, and that Lenk’s bare speculation that MPS must have given him a negative reference because 4 no other company hired him was insufficient to state a claim. See Dismissal Order at 13-15. The 5 Court finds that the state law blacklisting claims were frivolous, unreasonable, and groundless. 6 Claims 9-10: (UCL and Interference with Prospective Economic Advantage): Claims 9 7 and 10, for violation of California’s UCL and for interference with prospective economic 8 advantage, were based on MPS’s alleged discriminatory and blacklisting conduct. Those claims 9 arise out of the same facts as Lenk’s Title VII and § 1981 claims, and were dismissed for the same 10 reasons as the federal claims. The Court finds that these state law claims were frivolous, 11 unreasonable, and groundless when brought. 12 Claim 11 (Unjust Enrichment): Claim 11, for unjust enrichment, was based on the same 13 allegations of constructive discharge, harassment, retaliation, and race discrimination that underlie 14 his Title VII and § 1981 claims. The claim was dismissed as barred by collateral estoppel an also 15 as time-barred. See Dismissal Order at 16-17. The Court finds that the claim was frivolous, 16 unreasonable, and groundless when brought. 17 B. MPS’s Claimed Attorneys’ Fees and Costs are Reasonable 18 “Calculation of attorney’s fees begins with a lodestar figure: the number of hours 19 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Miller, 827 F.2d at 20 621. MPS has submitted a declaration of counsel and counsel’s billing records in this case. See 21 Snyder Decl., ECF 36-1. The declaration and billing records establish that counsel expended and 22 billed MPS for 93.6 hours of time in defending this action. See Snyder Decl. ¶ 14 & Exh. 1. That 23 total represents 56.4 hours of Mr. Snyder’s time, billed at $475 per hour, and 37.2 hours of Ms. 24 Stark’s time, billed at $375 per hour. See id. Multiplying the hours billed by the rates indicated 25 results in a total of $49,740 in attorneys’ fees billed in this action. 26 The Court finds that number of hours spent by counsel on this case is reasonable given the 27 number of claims alleged and the substantial motion practice, which included MPS’s two motions 1 appears from Mr. Snyder’s declaration that every effort was made to avoid duplicating work that 2 had been performed in connection with Lenk’s prior actions. Moreover, the hourly rates charged 3 to MPS are reasonable and in fact below market for lawyers practicing in the Bay Area. See id. ¶ 4 9. Accordingly, MPS’s lodestar figure for attorneys’ fees is $49,740. “There is a strong 5 presumption that the lodestar figure represents a reasonable fee.” Morales v. City of San Rafael, 6 96 F.3d 359, 363 n.8 (9th Cir. 1996), opinion amended on denial of reh’g, 108 F.3d 981 (9th Cir. 7 1997). The Court finds that there is no basis to adjust the lodestar figure pursuant to the Kerr 8 factors that are not already subsumed in the initial lodestar calculation. See id. at 363-64. 9 Accordingly, the Court concludes that MPS reasonably incurred attorneys’ fees of 10 $49,740. The Court also finds that MPS reasonably incurred costs in the amount of $215.30. See 11 Snyder Decl. ¶ 15. 12 C. Consideration of Lenk’s Pro Se Status and Financial Resources 13 Determining the amount of reasonable fees and costs incurred by MPS is not the end of the 14 inquiry. Even after finding a plaintiff’s claims to be frivolous, “the district court still retains 15 discretion to deny or reduce fee requests after considering all the nuances of a particular case.” 16 Thomas, 410 F.3d at 651 (internal quotation marks and citation omitted). 17 “The Christiansburg standard is applied with particular strictness in cases where the 18 plaintiff proceeds pro se.” Miller, 827 F.2d at 620. “[P]ro se plaintiffs cannot simply be assumed 19 to have the same ability as a plaintiff represented by counsel to recognize the objective merit (or 20 lack of merit) of a claim.” Id. However, “repeated attempts by a pro se plaintiff to bring a claim 21 previously found to be frivolous militates in favor of awarding attorney’s fees to a prevailing 22 defendant.” Id. Evidence that a pro se plaintiff “brought his claims to federal court in bad faith” 23 also would support an attorneys’ fees award. Id. 24 In addition to these considerations, “a district court in cases involving 42 U.S.C. §§ 1981, 25 1983 or Title VII should consider the financial resources of the plaintiff in awarding fees to a 26 prevailing defendant.” Miller, 827 F.2d at 621. “This is particularly true when the fee request 27 against an individual plaintiff is . . . sizable.” Id. (discussing attorneys’ fees in the amount of 1 the deterrent purposes of 42 U.S.C. § 1988 and 42 U.S.C. § 2000e–5(k), the award should not 2 subject the plaintiff to financial ruin.” Id. 3 MPS argues persuasively that a substantial attorneys’ fees award is warranted in light of 4 Lenk’s repeated attempts to bring frivolous claims that have been dismissed in prior iterations of 5 this lawsuit. The Court has been reluctant to award attorneys’ fees in Lenk’s prior actions in light 6 of his pro se status. In Lenk II, the Court granted MPS’s motion for prevailing party attorneys’ 7 fees only in part, awarding $17,582.50 of the $97,725.57 requested. See Lenk v. Monolithic 8 Power Sys., Inc., No. 16-CV-02625-BLF, 2018 WL 500267, at *11 (N.D. Cal. Jan. 19, 2018). 9 While the Court concluded that Lenk II was not frivolous when filed, it found that Lenk’s filing of 10 three post-judgment motions pursuant to Federal Rule of Civil Procedure 60 was unreasonable and 11 awarded MPS the reasonable attorneys’ fees in incurred in opposing those motions. Id. In Lenk 12 III, the Court denied MPS’s motion for prevailing party attorneys’ fees altogether, finding that the 13 action was not frivolous when filed and that the record did not support a finding that Lenk acted in 14 bad faith. Lenk v. Monolithic Power Sys. Inc., No. 19-CV-03791-BLF, 2020 WL 4673950, at *3-5 15 (N.D. Cal. Aug. 12, 2020). 16 In the present case, however, the Court has found that all of Lenk’s claims were frivolous, 17 unreasonable, and groundless when brought, for the reasons discussed above. Moreover, when 18 dismissing the present case, the Court found that “Lenk’s insistence on reasserting claims based on 19 his alleged constructive discharge in the face of three adverse judgments suggests that he is acting 20 in bad faith.” Lenk v. Monolithic Power Sys., Inc., No. 20-CV-08094-BLF, 2021 WL 5233078, at 21 *10 (N.D. Cal. Nov. 10, 2021). The Court concludes that Lenk’s commencement of this fourth 22 action against MPS, based on theories that have been expressly rejected by this Court, merits a 23 substantial award of attorneys’ fees to MPS. In determining the appropriate award, the Court is 24 mindful of the fact that Lenk litigated this action in forma pauperis, and that the complaint and 25 FAC filed in this action reflect his inability to obtain employment in his field after leaving MPS in 26 2013. See Order Granting IFP Applic., ECF 21; FAC ¶¶ 197-207. 27 The Court finds that an award of attorneys’ fees in the amount of $25,000 strikes the 1 bad faith, and consideration of Lenk’s pro se status and financial circumstances. The $25,000 2 || figure, at just over half of the attorneys’ fees reasonably incurred by MPS, is substantial but not so 3 large as to financially ruin Lenk based on the information provided in his application to proceed in 4 || forma pauperis. See IFP Applic., ECF 17. The Court also finds that an award of costs in the 5 amount of $215.30 is reasonable. 6 IV. ORDER 7 (1) MPS’s Motion for Prevailing Party Attorneys’ Fees and Costs is GRANTED IN 8 PART AND DENIED IN PART. 9 (2) MPS SHALL recover from Lenk $25,000 in attorneys’ fees and $215.30 in costs, 10 for a total recovery of $25,215.30. ll (3) This order terminates ECF 36. 12

13 Dated: March 18, 2022 kom mice) BETH LABSON FREEMAN 15 United States District Judge 16 & = 17

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