Legacy Mortgage, Inc. v. Title Guaranty Escrow Services, Inc. et al
ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS AND RECOMMENDATION REGARDING AWARD OF ATTORNEYS' FEES re 45 - Signed by JUDGE J. MICHAEL SEABRIGHT on 5/10/13. "As set forth above, the Court ADOPTS in part and MOD IFIES in part the F&R for a total award of attorneys' fees of $6,375.00." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LEGACY MORTGAGE, INC., a
TITLE GUARANTY ESCROW
SERVICES, INC., a Hawaii
CIV. NO. 11-00767 JMS-KSC
ORDER ADOPTING IN PART AND
MODIFYING IN PART FINDINGS
REGARDING AWARD OF
ORDER ADOPTING IN PART AND MODIFYING IN PART
FINDINGS AND RECOMMENDATION REGARDING
AWARD OF ATTORNEYS’ FEES
On April 18, 2013, Plaintiff Legacy Mortgage, Inc. (“Plaintiff”) filed
its Objection, Doc. No. 46, to the Magistrate Judge’s Findings and
Recommendation Regarding Award of Attorneys’ Fees (“F&R”), recommending
that Defendant Title Guaranty Escrow Services, Inc. (“Defendant”) be awarded
attorneys’ fees of $6,525.00. Doc. No. 45, at 4. After careful consideration of the
F&R, Objection, court record, and relevant legal authority, the F&R is ADOPTED
in part and MODIFIED in part.
II. PROCEDURAL BACKGROUND
On January 4, 2013, Plaintiff filed a Motion to Stay this case pending
the disposition of separate, but related, actions against Defendant and others in
state court. Doc. No. 19. On February 4, 2013, Plaintiff filed a Motion for
Voluntary Dismissal Without Prejudice, Doc. No. 24, a Motion for Extension of
Time and/or Continuation of Trial Date, Doc. No. 22, and a Motion to Advance
Hearings on Motions. Doc. No. 26. The Magistrate Judge granted the Motion to
Advance and set all three pending Motions for a February 20, 2013 hearing. Doc.
No. 30. On February 15, 2013, Plaintiff filed a Motion for Protective Order. Doc.
On March 12, 2013, the Magistrate Judge issued a Findings and
Recommendation to Dismiss Action (“F&R to Dismiss”), denying the Motion for
Protective Order and imposing the following conditions: (1) that Defendant be
awarded reasonable attorneys’ fees; and (2) that Plaintiff serve a written response
to Defendant’s request for production of documents. Doc. No. 38, F&R to Dismiss
at 2. On April 2, 2013, this court adopted the F&R to Dismiss. Doc. No. 43.
Meanwhile, on March 14, 2013, Defendant filed a Declaration of Leta
H. Price Regarding Attorneys’ Fees, in which it sought $6,625.00 in attorneys’
fees. Doc. No. 40. On March 18, 2013, Plaintiff filed its Declaration of James J.
Stone Re Request for Attorneys’ Fees, Doc. No. 41, and on March 26, 2013,
Defendant filed a Reply. Doc. No. 42. On April 4, 2013, the Magistrate Judge
issued his F&R awarding attorneys’ fees of $6,525.00, Doc. No. 45, to which
Plaintiff filed its Objection on April 18, 2013, Doc. No. 46. Pursuant to Local
Rules 7.2(d) and 74.2, the court finds this matter suitable for disposition without a
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d 614,
616 (9th Cir. 1989).
Plaintiff asserts the following objections: (1) Defendant is not entitled
to an award of attorneys’ fees because it is not a prevailing party; (2) the
Magistrate Judge erred by recommending fees for work performed after Plaintiff
filed its Motion to Dismiss; (3) the Magistrate Judge erred by recommending fees
for work that can be used in the state court actions; and (4) fees were recommended
for 1.2 hours that should be deemed clerical. The court will address these
objections in turn.
Defendant Is Not a Prevailing Party
District courts have broad discretion to impose an award of attorneys’
fees as a condition for dismissing an action without prejudice. See Fed. R. Civ. P.
41(a)(2) (providing that “an action may be dismissed at the plaintiff’s request only
by court order, on terms that the court considers proper”); see also Smith v.
Lenches, 263 F.3d 972, 978 (9th Cir. 2001) (reviewing district court’s decision
regarding an award of attorneys’ fees and costs relating to federal law suit
voluntarily dismissed for abuse of discretion); Westlands Water Dist. v. United
States, 100 F.3d 94, 96 (9th Cir. 1996) (remanding for determination whether fees
and costs should be imposed as a condition of dismissal without prejudice, and
noting that pursuant to Rule 41(a)(2) the court may impose “any terms and
conditions [it] deems proper” when granting voluntary dismissal). Because the
award of attorneys’ fees in an order dismissing without prejudice is discretionary
and not based upon legal authority reserving such awards for prevailing parties,
Plaintiff’s objection is without merit.
Fees for Work Done after Motion to Dismiss Was Filed
Plaintiff contends that Ninth Circuit precedent precludes an award of
attorneys’ fees for work done after a Motion to Dismiss is filed and therefore,
Defendant should not have received attorneys’ fees for work done after February 4,
2013. Plaintiff is mistaken1 and his reliance on Westlands is not persuasive.
Rather than support his contention, Westlands encourages the use of discretion in
determining whether an award of fees should include work that may not have been
necessary prior to dismissal. Westlands, 100 F.3d at 98 (suggesting on remand to
the district court that it determine whether a denial of fees would be appropriate for
Plaintiff primarily relies on a 2004 unpublished decision from the Ninth Circuit Court
of Appeals, which is neither precedential nor citable, see 9th Cir. R. 36-3.
work on defendants’ summary judgment motion, filed several weeks after
plaintiff’s motion for voluntary dismissal).
Ninth Circuit precedent does not preclude, but rather, encourages the
court to use discretion based on facts specific to each case when determining both
whether and to what extent to award attorneys’ fees. Here, upon de novo review,
the court concludes that an award is appropriate where Defendant incurred fees
responding to Plaintiff’s motions and not in connection with any later-filed
dispositive motion of its own.
Fees for Work That Cannot Be Used in Future Litigation
The F&R to Dismiss specified that attorneys’ fees would only be
awarded “for the work undertaken in this case that cannot be used in future
litigation[.]” Doc. No. 38, F&R to Dismiss ¶ 2. Plaintiff contends that because the
claims in this action and the state court action are the same, all work performed in
connection with this case can be used in future litigation. The court disagrees.
Defendant’s counsel represented that “[a]ll services [for which fees
are requested] cannot be used in the state litigation. For example, legal research on
Lanham Act, state trademark infringement, and [Plaintiff’s] other claims as well as
services relating to the production of documents have been excluded.” Doc. No.
40, Decl. of Leta H. Price ¶ 5. After careful review of counsel’s declaration, the
descriptions of services rendered, and the court docket, this court agrees with the
Magistrate Judge that:
the hours expended were on tasks that cannot be used in
the state court litigation or future litigation. No litigation
on the merits occurred in this case that would overlap
with the state court action. Rather, the time expended by
Ms. Price is this case related to the non-substantive
motions filed by Plaintiff.
Doc. No. 45, F&R at 3.
Finally, Plaintiff contends that an additional 1.2 hours should be
deducted as clerical. Generally, “clerical or ministerial costs are part of an
attorneys’ overhead and are reflected in the charged hourly rate.” Jeremiah B. v.
Dep’t of Educ., 2010 WL 346454, at *5 (D. Haw. Jan. 29, 2010) (citing Sheffer v.
Experian Info. Solutions, Inc., 290 F. Supp. 2d 538, 549 (E.D. Pa. 2003)). Tasks
deemed clerical and not compensable in this district have included:
reviewing Court-generated notices; scheduling dates and
deadlines; calendering dates and deadlines; notifying a
client of dates and deadlines; preparing documents for
filing with the Court; filing documents with the Court;
informing a client that a document has been filed;
personally delivering documents; bates stamping and
other labeling of documents; maintaining and pulling
files; copying, printing, and scanning documents;
receiving, downloading, and emailing documents; and
communicating with Court staff.
Haw. Motorsports Inv., Inc. v. Clayton Grp. Servs., 2010 WL 4974867, at *5 (D.
Haw. Dec. 1, 2010), adopted by Haw. Motorsports Inv., Inc. v. Clayton Grp.
Servs., 2010 WL 5395669 (D. Haw. Dec. 22, 2010); see also, e.g., Yamada v.
Weaver, 2012 WL 6019363, at *10 (D. Haw. Aug. 30, 2012), adopted in pertinent
part by Yamada v. Weaver, 2012 WL 6019121 (D. Haw. Nov 30, 2012) (deeming
clerical work completed on table of authorities).
Plaintiff contends that the following entries, not already deducted by
the Magistrate Judge, are clerical:
Review of USDC Memo
Review USDC email
Review USDC letter and
Notice of Election form
10/19/2012 Review Notice of Case
Review USDC email notification
Review Rule 16 Scheduling
Calendar discovery and trial dates
Attend Rule 16 Scheduling Conf.
This court concurs that entries numbered 1, 2, 4, 5, and 7 are clerical;
but entries numbered 3, 6, and 8 are not clerical. Thus, a total of 0.6 additional
hours, or $150.00, will be deducted as clerical.
As set forth above, the Court ADOPTS in part and MODIFIES in part
the F&R for a total award of attorneys’ fees of $6,375.00.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 10, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Legacy Mortg., Inc. v. Title Guar. Escrow Servs., Inc., Civ. No. 11-00767 JMS-KSC, Order
Adopting in Part and Modifying in Part Findings and Recommendation Regarding Award of
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