Stamper v. Freebird Logistics Incorporated

Opinion

Case 2:22-cv-00155-MTL Document 16 Filed 09/23/22 Page 1 of 10

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gregory Stamper, No. CV-22-00155-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Freebird Logistics Incorporated, et al., 13 Defendants. 14 15 Plaintiff Gregory Stamper filed a Motion for Award of Attorneys’ Fees pursuant to 16 LRCiv 54.2(b)(2) and 29 U.S.C. § 216(b). (Doc. 15 at 1.) For the following reasoning, the

17 Court grants the motion.1 18 I. BACKGROUND

19 The Court previously set forth the factual background of this case. (See Doc. 13.)

20 From approximately September 20, 2021 to September 28, 2021, Stamper worked as a 21 driver and driver’s helper for Freebird Logistics Inc. (“Freebird”) and Jeffrey Larson, Jane 22 Doe Larson, Kurt Larson, and Jane Doe Larsen II, the owners of Freebird (collectively, the

23 “Defendants”). (Doc. 1 at 3-7.) In January 2022, Stamper filed his complaint seeking relief

24 for unpaid wages, overtime wages and minimum wages. (Doc. 1 at 1.) He alleged that

25 Defendants failed to pay him any wages for the time spent working at Freebird. (Id. at 7.)

26 Plaintiff served Freebird and Jeffrey Larson on February 9, 2022. (Docs. 6, 7.) Larsen and 27 Freebird failed to respond. Upon Stamper’s application (Doc. 9), the Clerk of the Court 28 1 Dallis Meiering, a third-year law student at the Sandra Day O’Connor College of Law at Arizona State University, assisted in drafting this Order. Case 2:22-cv-00155-MTL Document 16 Filed 09/23/22 Page 2 of 10

1 entered default against Larsen and Freebird. (Doc. 10.) Plaintiff subsequently moved for 2 default judgment. (Doc. 11.) Once again, Defendants did not respond. Accordingly, the 3 Court granted Plaintiff’s Motion for Default Judgment (Doc. 13) and entered judgment in 4 favor of the Plaintiff. (Id. at 4-10). Subsequently, Plaintiff filed this Motion for Award of 5 Attorneys’ Fees totaling $7,355.75. This request includes $4,620.00 for Plaintiff’s attorney 6 Christopher Bendau’s (“Counsel”) billed hours, $735.75 for filing fees and service costs, 7 and $2,000.00 for anticipated costs incurred in collecting on the judgment. (Doc. 15 at 5, 8 6; Doc. 15-5 at 2-8.) 9 II. LEGAL STANDARD 10 The Fair Labor Standards Act (“FLSA”) requires that, upon application, the Court 11 award the prevailing party reasonable attorneys’ fees.2 29 U.S.C. § 216(b). Before the 12 Court awards attorneys’ fees, it must determine the prevailing party and if the fees are 13 reasonable. LRCiv 54.2(c); see, e.g., McGlothlin v. ASI Capital Ventures LLC, No. CV- 14 19-04895-PHX-DJH, 2021 WL 857367, at *1 (D. Ariz. Mar. 8, 2021) (“A party seeking 15 an award of attorney’s fees must show it is eligible and entitled to an award, and that the 16 amount sought is reasonable. . . . To be entitled to an award, Plaintiff must have prevailed 17 in this matter.”). 18 To determine the reasonableness of a requested award of attorneys’ fees, the Court 19 uses the “loadstar” approach. Coe v. Hirsch, No. CV-21-00478-PHX-SMM (MTM), 2022 20 WL 5008841, at *1 (D. Ariz. Jan. 21, 2022); see also Pelayo v. Platinum Limousine Servs., 21 Inc., 804 Fed. Appx. 522, 524 (9th Cir. 2020). “Under this approach, a ‘presumptively 22 reasonable’ fee award ‘is the number of hours reasonably expended on the litigation 23 multiplied by a reasonable hourly rate.’” Coe, 2022 WL 508841, at *1 (quoting Camacho 24 v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)). The Court may adjust the 25 lodestar amount to account for the Kerr factors. Gary v. Carbon Cycle Ariz. LLC, 398 F. 26 Supp. 3d 468, 485 (D. Ariz. 2019). Those factors include: 27 2 The Court notes that Plaintiffs also asserted that they are owed reasonable attorneys’ fees 28 under Arizona law. The Court finds the FLSA provides a sufficient basis to award attorneys’ fees.

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1 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the 2 legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary 3 fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the 4 amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 5 “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in 6 similar cases. 7 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); see also LRCiv. 8 54.2(c)(3). 9 III. DISCUSSION 10 A. Eligibility for and Entitlement to Attorneys’ Fees 11 For FLSA purposes, the prevailing party is the one that “succeed[ed] on any 12 significant issue in litigation which achieves some of the benefit the part[y] sought in 13 bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. 14 Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 1978)); see also Haworth v. State of Nev., 56 15 F.3d 1048, 1052 (9th Cir. 1995) (applying the Hensley standard to an analysis of whether 16 the plaintiff is the prevailing party in an FLSA case). Even where the mere filing of an 17 action brings about the payment of unpaid ages, a plaintiff becomes the prevailing party 18 for purposes of attorneys’ fees award. Orozco v. Borenstein, 2013 WL 4543836, at *2 (D. 19 Ariz. Aug. 18, 2013). Here, the Court granted the default judgment against Defendants for 20 the wages sought. Thus, Plaintiff is eligible and entitled to receive reasonable attorneys’ 21 fees. See 29 U.S.C. § 216(b). 22 B. Reasonableness of Requested Attorneys’ Fees 23 1. Time and Labor Required 24 Plaintiff requests an award of $7355.75. This request includes $4,620.00 for 25 Counsel’s billed hours, $735.75 for filing fees and service costs, and $2000.00 for 26 anticipated costs to be incurred in collecting on the judgment. (Doc. 15 at 5, 6.) The Court 27 must apply the loadstar approach to determine whether this request is reasonable. Coe, 28 2022 WL 508841, at *1. To calculate the loadstar amount, the Court considers whether the

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1 requesting party expended a reasonable number of hours and if the requesting party billed 2 those hours at a reasonable rate. Id. “The party seeking an award of attorneys’ fees bears 3 the burden of demonstrating that the rates requested are ‘in line with the prevailing market 4 rate of the relevant community.’” Gary, 398 F. Supp. 3d at 485 (quoting Carson v. Billings 5 Police Dept., 470 F.3d 889, at 891 (9th Cir. 2006)). “[T]he relevant community is the forum 6 in which the district court sits.” Camacho, 523 F.3d at 979. 7 Counsel charged $350.00 an hour. (Doc. 15 at 7.) The Court finds that this hourly 8 fee is reasonable in the Phoenix legal market. See e.g., Coe, 2022 WL 508841, at *1 9 (awarding attorneys’ fees at a rate of $378.75 per hour); Mayweathers v. Iconic Results 10 LLC, No. CV-20-01216-PHX-DJH, 2020 WL 8181700, at *3 (D. Ariz. Nov. 10, 2020) 11 (awarding attorneys’ fees at a rate of $378.75 per hour, even though the case was “easy”); 12 Gualotuna v. Estrella Gymnastics LLC, No. CV-16-00597-PHX-DLR, 2016 WL 8669298, 13 at *2 (D. Ariz. Oct. 28, 2016) (awarding attorneys’ fees for a twenty-year attorney and a 14 three-year attorney at rates of $475 and $375 per hour respectively). The Court finds that 15 Plaintiff has met his initial burden of demonstrating the reasonableness of Counsel’s hourly 16 rates. 17 Next, the Court must consider whether Counsel expended a reasonable number of 18 hours. Coe, 2022 WL 508841, at *1. The Court excludes attorneys’ fees for clerical and 19 administrative tasks. See Gary, 398 F. Supp. 3d at 487. Counsel asserts this case required 20 13.2 hours of his time. (Doc. 15 at 7.) Upon review of Counsel’s time sheet, the Court finds 21 Counsel billed for clerical and administrative tasks. The Court therefore deducts the 22 following hours: 23 24 0.1 hours on November 23, 2021 for “[s]end representation agreement.” 0.2 hours on November 23, 2021 for “[r]eceive representation agreement, set up 25 file.” 0.1 hours on January 27, 2022 for “[f]ile case.” 26 0.2 hours on January 28, 2022 for “[s]end documents to process server.” 27 0.1 hours on March 9, 2022 for “[f]ile proofs of service.” 0.1 hours on March 9, 2022 for “[f]ile application for entry of default.” 28 0.1 hours on March 19, 2022 for “[f]ile motion for default judgment.”

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1 0.1 hours from the 1.0 time entry on July 27, 2022 for “[f]inalize, file motion for 2 attorneys[’] fees and costs.”

3 4 (Doc. 15-5 at 2.) Accordingly, the Court finds 12.2 hours reflects the reasonable amount of 5 time spent on the matter. The revised total amount of Counsel’s fees is $4,270.00 6 (reflecting 12.2 hours billed at $350.00 an hour). 7 2. Novelty and Difficulty 8 The Court finds this case did not present any novel or difficult issues. Verduzco v. 9 Value Dental Centers Mesa W. AZ LLC, No. CV-02380-PHX-DJH, 2022 WL 2718163, at 10 *2 (D. Ariz. July 12, 2022) (finding an Arizona minimum wage and overtime claim did not 11 present any novel or difficult issues). 12 3. Requisite Skill 13 The Court finds it takes a “moderate amount of skill to litigate FLSA cases.” Id. 14 Counsel avers the legal issues raised by this FLSA action were “sophisticated and required 15 extensive knowledge of the law,” but also admits that the action had a “straightforward 16 nature.” (Doc. 15 at 7.) On balance, this constitutes a moderate amount of requisite skill. 17 4. Preclusion of Other Employment 18 Counsel avers that he was not “significantly” precluded from other employment 19 because of this representation. (Id. at 8.) 20 5. Customary Fee 21 Counsel asserts that his hourly rate of $350.00 is reasonable. (See id. at 6, 7.) The 22 Court agrees. Grabda v. Innovative Manufacturing Solutions, Inc., 2022 WL 6680378, at 23 *1 (D. Ariz. November 12, 2020) (determining that an hourly rate of $325 was reasonable 24 for Christopher J. Bendau). The Court also agrees with Counsel that the increase from 25 $325.00 to $350.00 is reasonable. 26 6. Experience, Reputation and Ability of the Attorneys 27 According to Counsel, his practice area remains exclusively within employment 28 wage litigation, largely under the FLSA. (Doc. 15 at 10, 11.) He has practiced law since

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1 2016 and litigated more than 150 employment suits. (Id., Doc. 15-6 at 5.) 2 7. Fixed or Contingent Fee 3 Counsel worked on a contingency basis, requiring forty percent of the total 4 recovery. (Doc. 15 at 8, Doc. 15-1 at 3.) 5 8. Time Limitations 6 Nothing indicates Plaintiff imposed time limitations on this matter. See Pozez v. 7 Ethanol Cap. Mgmt., LLC, No. CV-07-00319-TUC-CKJ, 2013 WL 12095669, at *4 (D. 8 Ariz. July 15, 2013) (granting plaintiff’s attorneys’ fees even where there were no time 9 limitations imposed). 10 9. Amount Involved and Results Obtained 11 “Where a plaintiff has obtained excellent results, his attorney should recover a fully 12 compensatory fee . . . .” Hensley v. Eckerhart, 461 U.S. 424, 435–36 (1983). Here, Plaintiff 13 received $5,333.44 accounting for all his estimated unpaid wages. (Doc. 14 at 1.) The Court 14 therefore finds Plaintiff obtained excellent results. 15 10. The Case’s Undesirability 16 Counsel does not label this case as particularly undesirable, but notes the inherent 17 risk involved with contingency fee cases. (Doc. 15 at 11.) 18 11. Nature and Length of Relationship with the Client 19 Before the case at hand, Counsel has not represented Plaintiff. (Id. at 11.) This case 20 has been present on the Court’s docket since January 2022. 21 12. Hourly Fees Awarded in Similar Cases 22 Plaintiff references a variety of cases for awards in actions of a similar nature. (Id. 23 at 5, 11.); see, e.g., Grabda, 2022 WL 6680378, at *1; see also Gualotuna, No. CV-16- 24 00597-PHX-DLR, 2016 WL 8669298, at *2 (awarding attorneys’ fees for a twenty-year 25 attorney and a three-year attorney at rates of $475 and $375 per hour respectively). 26 13. Other Matters 27 Plaintiff requests $2,000.00 for anticipated costs and fees for collection efforts. 28 Plaintiff does not offer any specific facts to substantiate these costs and fees but asserts

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1 they are reasonable. (Doc. 15 at 13 (noting “Plaintiff and [Counsel] will likely need to pay 2 fees and additional costs in their collection effort”).) In doing so, Plaintiff cites 3 distinguishable case law. See Export Dev. Canada v. Patterson, Inc., 2008 WL 5205199, 4 at *1 (D. Or. Dec. 11, 2008). In Patterson, the court awarded $2,000.00 for anticipated 5 attorneys’ fees for collection efforts because the defendant failed to make payments 6 according to a settlement agreement the parties entered into following litigation. Id. 7 Additionally, the defendant in that case did not respond to the plaintiff’s subsequent 8 complaint to enforce the settlement agreement. Id. Here, Plaintiff does not offer any 9 evidence concerning the Defendant’s financial status or that the Defendant may resist 10 payment. See Farm Credit of Nw. Fla., ACA v. R & B Const. of S. Alabama, Inc., No. CIVA 11 08-0439-WS-C, 2009 WL 4456340, at *5 n. 7 (S.D. Ala. Nov. 24, 2009) (noting a default 12 judgment alone does not support finding a party may not respond to a judgment). 13 While Defendant has not responded to the present litigation, an award for collection 14 efforts is too speculative. See Akula v. Airbee Wireless, Inc., No. 1:08CV421(JCC), 2009 15 WL 122795, at *2 (E.D. Va. Jan. 14, 2009) (finding an award for anticipated attorneys’ 16 fees too speculative); see also F.D.I.C. v. Thornton, No. 3:12-CV-00218, 2014 WL 17 4174037, at *2-5 (M.D. Tenn. Aug. 20, 2014) (reasoning a plaintiff may be entitled to costs 18 associated with anticipated collection efforts but denying the plaintiff’s request for costs 19 and fees where it did not explain its anticipated collection efforts). Other than stating 20 Plaintiff “will likely” have fees and costs associated with the collection efforts, Plaintiff 21 did not explain any efforts he plans to take. Under these circumstances, the costs and fees 22 for collection efforts are too speculative. Although the Court finds that the speculative 23 collection costs are unreasonable, this Order does not preclude Plaintiff from seeking 24 collection costs and, for that matter, future attorneys’ fees, should they be incurred. 25 On balance, the Kerr factors show that, subject to some deductions, Plaintiff’s 26 request is reasonable. Thus, the Court awards Plaintiff attorneys’ fees of $4,270.00 and 27 $737.75 in costs. The Court declines to award the request for $2,000.00 for anticipated 28 collection efforts. The Court has itemized its reductions to Plaintiff’s fee award in the

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1 spreadsheets attached as Exhibit A to this Order. The Court awards Plaintiff a total sum of 2 $5,007.75. 3 IV. CONCLUSION 4 Accordingly, 5 IT IS ORDERED granting Plaintiffs’ motion for attorneys’ fees. (Doc. 15.) 6 IT IS FURTHER ORDERED that the Defendant shall pay $5,007.75 in attorneys’ 7 fees within thirty (30) days from the date of this order. 8 IT IS FURTHER ORDERED that Plaintiffs shall file a notice of satisfaction 9 within seven (7) days of receipt of the full amount of attorneys’ fees as contemplated by 10 this Order. 11 Dated this 23rd day of September, 2022. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 EXHIBIT A 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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