Ubinger v. Urban Housekeeping LLC

Opinion

1 WO 2 3 4 5

9 Joyce Ubinger, No. CV-23-01802-PHX-ROS

10 Plaintiff, ORDER

11 v.

12 Urban Housekeeping LLC, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Attorneys’ Fees and Costs 16 (“Motion”) (Doc. 34) seeking $15,898.95 in fees and costs. 18 Plaintiff filed this suit for unpaid overtime wages under the Fair Labor Standards 19 Act (“FLSA”), the Arizona Minimum Wage Act (“AMWA”), and the Arizona Wage Act 20 (“AWA”). (Doc. 14). Defendants were properly served but failed to answer or otherwise 21 participate in the action. The Court granted default judgment against Defendants Urban 22 Housekeeping, LLC, and Urban Housekeeping-AB, LLC, in the amount of $1,875 and 23 against Urban Housekeeping, LLC, Urban Housekeeping-AB, LLC, and Meredith De 24 Olavarria for $831 of the $1,875. (Doc. 33). 26 I. Entitlement and Eligibility to Fees and Costs 27 Plaintiff requests $10,769 in attorneys’ fees and $1,055.16 in costs in accordance 28 with Federal Rule of Civil Procedure 54, Local Rule of Civil Procedure 54.2, and 1 29 U.S.C. § 216(b)—the FLSA’s fee-shifting provision that “provides for attorney fees and 2 costs to a successful plaintiff.” Haworth v. State of Nev., 56 F.3d 1048, 1050 n.1 (9th Cir. 3 1995). The FLSA requires courts to award reasonable attorneys’ fees to successful 4 plaintiffs. 29 U.S.C. § 216(b); see also Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 5 1971) (“[The statute] provides that an award of attorney’s fee ‘shall’ be made to the 6 successful plaintiff. The award of an attorney’s fee is mandatory.”). As the prevailing 7 party in the present FLSA action, (Doc. 17), Plaintiff is entitled to attorneys’ fees. 8 Plaintiff argues she is entitled to attorney fees incurred in preparing the Motion for 9 Attorneys’ Fees and Costs. Local Rule of Civil Procedure 54.2(c)(2) requires a plaintiff 10 claiming “entitlement to fees for preparing the motion and memorandum for award of 11 attorneys’ fees” and costs “must cite the applicable legal authority supporting” the request. 12 Plaintiff cites Gary v. Carbon Cycle Arizona LLC, 398 F. Supp. 3d 468, 479 (D. Ariz. 13 2019), as support for the proposition that a “party that is entitled to an award of attorneys’ 14 fees is also entitled to compensation for time expended on an application for attorneys’ 15 fees.” The Ninth Circuit has noted “federal courts, including our own, have uniformly held 16 that time spent in establishing the entitlement to and amount of the fee is compensable.” 17 In re Nucorp Energy, Inc., 764 F.2d 655, 659-60 (9th Cir. 1985). And, more specifically, 18 courts have awarded fees incurred in preparing fees motions in other FLSA cases within 19 the District of Arizona. See, e.g., Gary, 398 F. Supp. 3d 468. Plaintiff is entitled to recover 20 fees, including those incurred in preparing the present motion. 21 II. Reasonableness of Requested Award 22 While the FLSA mandates an award of attorneys’ fees to a successful plaintiff, 23 29 U.S.C. § 216(b), “the amount of the award is within the discretion of the court,” Houser 24 v. Matson, 447 F.2d 860, 863 (9th Cir. 1971). Courts “employ the ‘lodestar’ method to 25 determine a reasonable attorney’s fees award.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th 26 Cir. 2016) (citing Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000)). Courts 27 calculate the lodestar figure by “multiplying the number of hours reasonably expended on 28 a case by a reasonable hourly rate.” Id. 1 After calculating the lodestar figure, a Court may reduce or increase the award based 2 on a variety of factors. Those factors include: (1) the time and labor required, (2) the 3 novelty and difficulty of the legal questions involved, (3) the skill required to perform the 4 legal service properly, (4) other employment precluded due to acceptance of the case, (5) 5 the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed 6 by the client or the circumstances, (8) the amount involved and the results obtained, (9) the 7 experience, reputation, and ability of the attorneys, (10) the undesirability of the case, (11) 8 the nature and length of the professional relationship with the client, and (12) awards in 9 similar cases. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (“Kerr 10 factors”).1 The lodestar calculation normally subsumes some of the Kerr factors such that 11 the Court need not consider them again after determining the lodestar. See Gonzalez v. 12 City of Maywood, 729 F.3d 1196, 1209 (9th Cir. 2013) (identifying factors often considered 13 when calculating lodestar). 14 A. Hourly Rates 15 The first question is whether Plaintiff’s asserted rate is reasonable. “A reasonable 16 hourly rate is ordinarily the prevailing market rate in the relevant community.” Sw. Fair 17 Hous. Council v. WG Scottsdale LLC, No. 19-00180, 2022 WL 16715613 at *3 (D. Ariz. 18 Nov. 4, 2022) (citing Kelly, 822 F.3d at 1099). And “the burden is on the fee applicant to 19 produce satisfactory evidence—in addition to the attorney’s own affidavits—that the 20 requested rates are in line with those prevailing in the community for similar services by 21 lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 22 U.S. 886, 895 n.11 (1984). 23 Plaintiff’s counsel, Clifford P. Bendau II, is a managing attorney at Bendau & 24 Bendau PLLC with approximately 12 years’ experience as a litigator focusing exclusively 25 on plaintiffs’ state and federal employment wage and hour litigation, primarily under the 26 FLSA. Plaintiff asserts a $445 billing rate for Mr. Bendau. Plaintiff supports that rate with 27 1 Local Rule 54.2 also lists factors the Court must address when determining the 28 reasonableness of the requested award. These factors are largely duplicative of the Kerr factors. 1 an affidavit from Mr. Bendau outlining his experience and stating the $445 rate is 2 reasonable, and a collection of rate determinations regarding Mr. Bendau in other FLSA 3 cases. 4 In his affidavit, Mr. Bendau states he has litigated more than 500 employment- 5 related lawsuits in that time. In a 2023 FLSA case within the District of Arizona, the court 6 approved Mr. Bendau’s $445 per hour rate as reasonable. Ekstrand v. Tru Realty LLC, No. 7 23-cv-1416, Doc. 17 (D. Ariz. Oct. 20, 2023). This Court recently followed suit, holding 8 Mr. Bendau’s $445 rate reasonable. Aguirre v. Custom Image Pros LLC, No. 23-cv-0419, 9 Doc. 20 (D. Ariz. May 15, 2024). According to Mr. Bendau, his $445 rate is commensurate 10 with his experience level and is well within the standard hourly rates charged by other law 11 firms in the Phoenix area. 12 The Court finds the prevailing rates for FLSA cases in the District of Arizona and 13 Mr. Bendau’s experience support the requested hourly rate. The Court finds the $445 14 hourly rate reasonable. 15 B. Hours Expended 16 Under the lodestar method, the prevailing party is generally entitled to recover fees 17 for “every item of service which, at the time rendered, would have been undertaken by a 18 reasonable and prudent lawyer to advance or protect his client’s interest.” Gary v. Carbon 19 Cycle Ariz. LLC, 398 F. Supp. 3d 468, 486 (D. Ariz. 2019) (quoting Twin City Sportservice 20 v. Charles O. Finley & Co., 676 F.2d 1291, 1313 (9th Cir. 1982)). Courts may “exclude 21 from this initial fee calculation hours that were not reasonably expended.” Hensley v. 22 Eckerhart, 461 U.S. 424, 433-34 (1983) (internal quotations removed); see also McKown 23 v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (“In determining the appropriate 24 number of hours to be included in a lodestar calculation, the district court should exclude 25 hours that are excessive, redundant, or otherwise unnecessary.”). 26 Plaintiff submits a log of time Mr. Bendau expended on the present case.2 (Doc. 27 2 This activity log lists an incorrect case name but includes the correct case number. Also, 28 the dates reflected on the log match up with events in this case. Therefore, the log is sufficient despite the mistaken case name. 1 34-5). The activity log states Mr. Bendau expended 24.2 hours in total. Id. Having 2 considered the time and labor reasonably required for each task on Plaintiff’s activity log, 3 the Court finds that each of the entries are reasonable. 4 C. Lodestar Figure and Adjustment 5 Having found Plaintiff’s submitted rate and hours reasonable, the Court determines 6 the lodestar figure is $10,7679.00 (24.2 hours at a rate of $445). Despite a “strong 7 assumption that the ‘lodestar’ method represents a reasonable fee,” Corrales-Gonzalez v. 8 Speed Auto Wholesalers LLC, 2023 WL 3981139, at *7 (D. Ariz. June 13, 2023), the Court 9 “has discretion to adjust the lodestar upward or downward” based on the Kerr factors not 10 subsumed in the lodestar calculation. Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir. 11 2016). Courts must assess these factors and must articulate “with sufficient clarity the 12 manner in which it makes its determination.” Carter v. Caleb Brett LLC, 757 F.3d 866, 13 869 (9th Cir. 2014). The above lodestar analysis subsumes several of these factors, 14 including the time and labor required by counsel, skill required to perform the legal services 15 properly, customary fees in similar matters, and the experience and reputation of counsel. 16 The Court considers the remaining factors here and finds none justify adjusting the lodestar 17 figure. 18 i. Preclusion of Other Employment 19 Mr. Bendau was not significantly precluded from other work because of this 20 representation. This factor is neutral. 21 ii. Nature of Fee Arrangement 22 Mr. Bendau worked on a contingency fee. This factor supports awarding the full 23 lodestar amount. 24 iii. Time Limitations 25 Plaintiff states there were no time limitations imposed in this case. This factor is 26 neutral. 27 iv. Results Obtained 28 “Where a plaintiff has obtained excellent results, his attorney should recover a fully 1 compensatory fee.” Hensley v. Eckerhart, 461 U.S. 424, 435-36 (1983). Plaintiff submits 2 counsel “has obtained excellent results” because she recovered “well in excess of the total 3 amount in unpaid wages that Defendants owed her.” This factor weighs in favor of 4 awarding the full lodestar amount. 5 v. Novelty and Difficulty of the Claims 6 This case involved a “straightforward claim that comes reasonably often before this 7 Court.” This factor is neutral. 8 vi. Undesirability of the Case 9 Plaintiff argues this case was generally undesirable because it involved low 10 damages, a “speculative amount of available fees,” and the risk of taking on a matter and 11 expending costs without guarantee of recovery. While the Court agrees that this factor 12 supports Plaintiff’s award of fees, this factor does not justify an adjustment to the lodestar 13 amount. 14 vii. Nature of the Attorney-Client Relationship 15 Mr. Bendau has never represented Plaintiff before this case. This factor is neutral. 16 viii. Awards in Similar Cases 17 Finally, the Court considers awards in similar cases. Plaintiff refers to the cases 18 cited for the reasonableness of Mr. Bendau’s hourly fee to demonstrate awards in similar 19 cases. In Ekstrand v. Tru Realty LLC, a court awarded an FLSA plaintiff $9,167.00 in 20 attorneys’ fees after default judgment based on a $445 hourly rate. No. 23-cv-1416, Dkt. 21 17 (D. Ariz. Oct. 20, 2023). That case is sufficiently similar to the present case to weigh 22 in favor of awarding the full lodestar amount. 23 ix. Final Lodestar Adjustment 24 After consideration, the Kerr factors do not justify an adjustment to the lodestar 25 amount. 26 D. Conclusion 27 Mr. Bendau’s $445 hourly rate and 24.2 hours spent on the case are reasonable, 28 yielding a lodestar amount of $10,769.00. No adjustment to the lodestar amount is 1 necessary. Thus, the Court will award attorneys’ fees in the amount of $10,769.00. 3 In addition to attorneys’ fees, Plaintiff requests $1,055.16 in taxable costs, detailed 4 in an exhibit to the motion (Doc. 34-5). Plaintiff filed a bill of costs seeking to recover 5 these costs. (Doc. 35). The Court will allow for those costs to be awarded pursuant to the 6 usual procedure contemplated by Local Rule 54.1. 7 Plaintiff requests an additional $4,074.79 in costs for anticipated collection efforts. 8 In support of this request, Plaintiff states “Plaintiff’s counsel has generally engaged” an 9 outside law firm “to assist them and their clients in efforts to collect” on judgments. 10 Plaintiff attaches the agreement between Plaintiff’s counsel and the outside law firm, under 11 which Plaintiff’s counsel pays a $650 retainer and an ultimate “25% contingency fee on all 12 amounts recovered.” 13 The Court recognizes Plaintiff may need to pay the $650 retainer and 25% of the 14 recovery for collection efforts, but these fees and costs are better addressed at a later date. 15 See Mumphrey v. Good Neighbor Community Services LLC, No. 23-cv-00923, 2023 WL 16 8702103, at *5 (D. Ariz. Dec. 15, 2023); Stamper v. Freebird Logistics Inc., No. 22-cv- 17 00155, 2022 WL 4448457, at *4 (D. Ariz. Sept. 23, 2022); Akula v. Airbee Wireless, Inc., 18 No. 08-cv-00421, 2009 WL 122795, at *2 (E.D. Va. Jan. 14, 2009) (denying advance 19 collection fees where “the necessity and amount of future attorney’s fees requested by 20 Plaintiff are too speculative at this point in the collection process”). Any award of 21 collection costs before Plaintiff incurs them is necessarily speculative. Judge Lanza 22 recently concluded not-yet-incurred collections costs are not “speculative” because 23 plaintiff's counsel had entered into an agreement that promised 25% of the recovery to 24 another law firm in return for that firm engaging in collection efforts. See Alvarez v. 25 Talaveras Renovations LLC, No. 23-cv-02654, 2024 WL 1195462, at *1–2 (D. Ariz. Mar. 26 20, 2024). But costs that Plaintiff has not yet incurred, and may never incur, still qualify 27 as “speculative.” For example, if Defendants learn of the judgment and immediately remit 28 payment, Plaintiff’s counsel will never incur the additional 25%. But perhaps more 1 || importantly, the very nature of awarding collections costs on the front end is improper. A 2|| court can only award “reasonable” costs and fees. See 29 U.S.C. § 216(b) (“The court in || such action shall ... allow a reasonable attorney’s fee to be paid by the defendant.’’) (emphasis added). Until costs and fees are incurred, the Court has no way to determine if 5 || they were reasonable. Using another example, a judgment of $20,000 would allow for a 6 || total award of $25,000 under Plaintiffs approach, i.e., $20,000 + 5,000 (25% of 20,000). The other law firm might engage in collection efforts consisting of a single letter. If the || defendants then pay the entire judgment, the letter will have cost $5,000, likely an unreasonable amount. In the end, courts routinely award collections costs after they are || incurred. That is the wiser approach. 11 The Court finds an advance award of anticipated collection costs inappropriate. Plaintiff is free to seek collection costs or additional attorneys’ fees in the future. 13 Accordingly, 14 IT IS ORDERED Plaintiff's Motion for an Award of Attorneys’ Fees and Costs || (Doc. 35) is GRANTED IN PART and DENIED IN PART. The Court awards Plaintiff 16|| $10,769.00 in attorneys’ fees. 17 Dated this 17th day of June, 2024. 18 fo . 19 C | . ES . 20 Honorable slyn ©. Silver 1 Senior United States District Judge 22 23 24 25 26 27 28

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