TD Ameritrade v. Matthews
Filing
261
ORDER granting in part and denying in part 254 Motion for Attorney Fees. See Order for details. Signed by Judge Sharon L. Gleason on 12/19/2022. (JDS, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TD AMERITRADE, INC., et al.,
v.
Plaintiffs,
JAMES RICHARD MATTHEWS,
Defendant.
Case No. 3:16-cv-00136-SLG
ORDER RE RENEWED MOTION FOR ATTORNEY’S FEES
Before the Court at Docket 254 is a renewed motion for attorney’s fees
brought by Plaintiffs TD Ameritrade, Inc.; TD Ameritrade Holding Corporation; TD
Ameritrade IP Company, Inc.; and TD Ameritrade Services Company, Inc. (“TD
Ameritrade”). Defendant James Richard Matthews responded in opposition at
Docket 256, and TD Ameritrade replied at Docket 258. Mr. Matthews filed a
surreply at Docket 259, which the Court will accept, although in large part it simply
restates the arguments set forth in the opposition.
Oral argument was not
requested and was not necessary to the Court’s determination.
BACKGROUND
The underlying facts and procedural history of this case are set forth in detail
in the Court’s orders regarding TD Ameritrade’s first, second, and third motions to
dismiss and the Court’s Order Re Motion for Cancellation and Declaratory
Judgment. 1 The Court assumes familiarity with them. As relevant here, the Court
issued an order on October 4, 2022 denying TD Ameritrade’s motion for attorney’s
fees incurred in connection with its efforts to cancel documents related to an invalid
nonconsensual common law lien that Mr. Matthews recorded in 2015. 2 In its order,
the Court noted that TD Ameritrade is entitled to a reasonable fee award pursuant
to Alaska Statutes (“AS”) §§ 09.45.164(c) and 09.45.167(a) but failed to submit
evidence showing that the hourly rates it charged are in accordance with those
customarily charged in the District of Alaska. 3 The Court allowed TD Ameritrade
to file a renewed motion that includes the requisite evidence to comply with the
locality rule. 4
On October 18, 2022, TD Ameritrade filed a renewed motion for attorney’s
fees. 5 In this motion, TD Ameritrade provides, among other things, a declaration
from its out-of-state counsel, Melanie L. Ronen; a description of the hourly rates
charged in connection with this matter by all of TD Ameritrade’s counsel, which
See Docket 62 (Order Re Motion to Dismiss); Docket 97 (Order Re Pending Motions); Docket
108 (Order Re Motion to Dismiss); Docket 237 (Order Re Motion for Cancellation and
Declaratory Judgment).
1
See Docket 249 (Motion for Attorneys’ Fees); Docket 253 (Order Re Motion for Attorneys’
Fees).
2
3
Docket 253 at 2-3 (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
4
Docket 253 at 3.
5
Docket 254.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 2 of 22
included Alaska counsel; redacted invoices for legal services; and citations to the
2017-2018 U.S. Consumer Law Attorney Fee Survey Report. 6 TD Ameritrade’s
law firm billed at various hourly rates throughout the litigation, including rates of
$212 and $248 per hour for paralegals, $284.75 per hour for associates, and
$467.50 to $639 per hour for partners (with an Alaska partner billing at the former
rate and Ms. Ronen billing at the latter rate). 7 TD Ameritrade states that one of its
other Alaska attorneys, who represented TD Ameritrade in this litigation but did not
bill time in connection with the lien matter, billed at the same rate as Ms. Ronen
did in 2019 ($548 per hour). 8 According to the 2017-2018 U.S. Consumer Law
Attorney Fee Survey Report cited by TD Ameritrade, the average and median
hourly rates for all attorneys practicing “consumer law” in Alaska in 2017-2018
were $325 per hour. 9 The applicable median metropolitan attorney rate identified
in the survey was $400 per hour, and the 95% median attorney rate was $500 per
hour. 10 According to TD Ameritrade, the $548 to $639 hourly rates charged by Ms.
Docket 254 (Renewed Motion for Attorneys’ Fees); Docket 254-1 (declaration, invoices, and
survey report).
6
Docket 254-1 at 2-3, ¶¶ 2, 3. Ms. Ronen also billed at rates of $548 and $580 per hour from
August 2019 through September 2021. Docket 254-1 at 2, ¶ 2.
7
8
Docket 254 at 6; Docket 254-1 at 4, ¶ 11.
9
Docket 254-1 at 104.
10
Docket 254-1 at 104.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 3 of 22
Ronen are “in-line with these statistics, taking into account her experience and
reasonable increases since 2018.” 11
In his opposition, Mr. Matthews asserts that Alaska Rule of Civil Procedure
82 (“Rule 82”) governs TD Ameritrade’s request and, as such, TD Ameritrade is
entitled only to a maximum of 20% of its allowable fees, subject to additional
discretionary downward adjustments. 12 In asserting that a downward adjustment
is warranted, Mr. Matthews claims that most of TD Ameritrade’s fees were not
“necessarily incurred” because:
(a) Mr. Matthews did not contest that he had mistake [sic] in filing the
liens, and was always willing to stipulate as to an order for the removal
of the liens; and (b) TD Ameritrade never asserted that it had any real
or personal property located in, or affected by, the liens filed by Mr.
Matthews. 13
Accordingly, Mr. Matthews requests that the Court deny TD Ameritrade’s motion in
its entirety or, in the alternative, apply an hourly rate of $300 to TD Ameritrade’s
partners’ time based on his reading of the 2017-2018 U.S. Consumer Law Attorney
Fee Survey Report’s figures. 14
In response, TD Ameritrade cites caselaw supporting its contention that AS
§§ 09.45.164(c) and 09.45.167(a) apply instead of Rule 82 and permit an award
11
Docket 254 at 6 (footnote omitted).
12
Docket 256 at 2.
13
Docket 256 at 4 (citing Alaska R. Civ. P. 82(b)).
14
Docket 256 at 7, 9, 16 (citations omitted).
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 4 of 22
of TD Ameritrade’s full actual reasonable attorney’s fees. 15 TD Ameritrade also
reasserts its claim that its fees and rates were reasonable and consistent with
those charged in Alaska, pointing primarily to the survey’s 95% median rate of
$500 per hour. 16
DISCUSSION
The parties dispute both the applicable legal standard governing TD
Ameritrade’s fee request and whether the fees billed are reasonable. Accordingly,
the Court turns first to identification of the appropriate legal standard and then
applies that standard to determine whether TD Ameritrade has met its burden to
demonstrate the reasonableness of its fee request and, if not, what fee award is
reasonable.
I.
Applicable Legal Standard
Alaska law, rather than federal law, governs TD Ameritrade’s fee request
because TD Ameritrade requests fees generated in pursuit of its state-law claim
for the invalidation of the documents that Mr. Matthews recorded in connection with
a nonconsensual common law lien. 17
15
Docket 258 at 3, 4 (citations omitted).
16
Docket 258 at 5.
As noted in the Court’s order on TD
See Klein v. City of Laguna Beach, 810 F.3d 693, 701 (9th Cir. 2016) (footnote omitted) (first
citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); and then citing MRO Commc’ns, Inc. v.
Am. Tel. & Tel. Co., 197 F.3d 1276, 1279-80 (9th Cir. 1999)) (“[F]ederal courts apply state law
for attorneys' fees to state claims because of the Erie doctrine . . . and Erie does not compel
federal courts to apply state law to a federal claim.”).
17
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 5 of 22
Ameritrade’s first motion for attorney’s fees, TD Ameritrade is entitled to a
reasonable fee award pursuant to AS §§ 09.45.164(c) and 09.45.167(a). 18 AS §
09.45.164(c) provides:
If the court determines that the claim of nonconsensual common law
lien is invalid, the court shall issue an order releasing the claim of lien
and awarding costs and actual reasonable attorney fees to the party
making the request. If the court determines that the claim of
nonconsensual common law lien is valid, the court shall issue an order
stating the claim of the lien is valid and shall award costs and actual
reasonable attorney fees to the lien claimant.
AS 09.45.167(a) provides:
A person who offers a claim of nonconsensual common law lien for
recording or filing that is not accompanied by a specific order from a
court of competent jurisdiction recognized under state or federal law
authorizing the recording or filing of the lien is liable to the owner of
the property affected by the lien for actual and punitive damages, as
well as costs and actual reasonable attorney fees.
Mr. Matthews’ contention that Rule 82 applies instead of these statutes is
without merit. Rule 82 is a default procedural rule subject to an express exception:
It applies “[e]xcept as otherwise provided by law or agreed to by the parties . . .”19
AS §§ 09.45.164(c) and 09.45.167(a) are other sources of law that govern the
award of fees in this case. Although the Alaska Supreme Court has not decided
whether these specific statutory provisions are an exception to Rule 82’s formula,
it has directly addressed this issue of statutory interpretation in analogous cases.
18
Docket 253 at 1 (citing Cutler v. Kodiak Island Borough, 290 P.3d 415, 418 (Alaska 2012).
19
Alaska R. Civ. P. 82(a).
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 6 of 22
In Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006), the Alaska Supreme Court
affirmed a lower court’s award of full fees, recognizing that “[w]here statutes call
for an award of reasonable attorney’s fees to a prevailing party, we have concluded
that reasonable actual fees are intended rather than reasonable partial fees as
would be the case under Rule 82.” 20 The language of the statute at issue in
Vazquez is analogous in material respects to the language used in AS §§
09.45.164(c) and 09.45.167(a). 21 There, as here, the statute does not expressly
state that it overrides Rule 82’s partial fee arrangement; nor does it specify that the
prevailing party is entitled to a “full” award of its reasonable attorney’s fees. The
statute in Vazquez even includes an opening phrase that seemingly makes
reference to the Alaska Rules of Civil Procedure: “To the extent authorized by court
rules . . .” 22 Still, the Alaska Supreme Court expressly noted that this phrase “does
Vazquez, 146 P.3d at 2 (first citing Still v. Cunningham, 94 P.3d 1104, 1117 (Alaska 2004);
then citing Bobich v. Stewart, 843 P.2d 1232, 1237 (Alaska 1992); and then citing Boyd v.
Rosson, 713 P.2d 800, 802 (Alaska 1986)).
20
See Vazquez, 146 P.3d at 1 (“AS 25.30.500(a)[] requires the award of actual reasonable
attorney’s fees and expenses to the prevailing party in an enforcement proceeding conducted
under the act.”). Compare AS § 25.30.500(a) (“To the extent authorized by court rules, the court
shall award the prevailing party, including a state, necessary and reasonable expenses incurred
by or on behalf of the party, including costs, communication expenses, attorney fees . . .”), with
AS § 09.45.164(c) (“[T]he court shall issue an order releasing the claim of lien and awarding
costs and actual reasonable attorney fees to the party making the request . . .”), and AS §
09.45.167(a) (“A person who offers a claim of nonconsensual common law lien for recording or
filing . . . is liable to the owner of the property affected by the lien for actual and punitive
damages, as well as costs and actual reasonable attorney fees.”).
21
22
Vazquez, 146 P.3d at 1.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 7 of 22
not alter our conclusion” that Rule 82’s formula does not apply. 23 In later cases
involving statutes with similar language, the Alaska Supreme Court reaffirmed this
interpretation, establishing clear precedent for how courts should interpret
language in substantive statutes providing for the award of reasonable attorney’s
fees. 24 The Court will interpret AS §§ 09.45.164(c) and 09.45.167(a) in accordance
with this precedent.
Mr. Matthews maintains that because TD Ameritrade has not identified any
real or personal property in Alaska to which the lien documents he recorded could
have applied, AS §§ 09.45.164(c) and 09.45.167(a) are inapplicable. 25 And in his
surreply, Mr. Matthews attempts to distinguish this case from the Alaska Supreme
Court cases that have applied attorney’s fee provisions in substantive Alaska
statutes over Rule 82. 26
Mr. Matthews further contends that: (1) AS §§
09.45.164(c) and 09.45.167(a) lack “any language to suggest that the application
of Civil Rule 82 would ‘interfere with the unique character and purpose’ of their
23
Vazquez, 146 P.3d at 2 n.4.
See State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 403 (Alaska 2007) (citations and
footnotes omitted) (“Alaska has numerous fee-shifting provisions that are intertwined with
statutes. We have interpreted such provisions to call for the award of actual reasonable fees, in
contrast to the partial reasonable standard employed in Rule 82 cases.”); Krone v. State, Dep’t
of Health & Soc. Servs., 222 P.3d 250, 257 (Alaska 2009) (citing AS § 09.60.010(c)(1)) (ruling
that a substantive statute’s attorney’s fee provisions allowed an award of full reasonable fees as
opposed to an award of partial fees under Rule 82).
24
25
Docket 256 at 12-13.
26
Docket 259 at 5-9.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 8 of 22
provisions”; and (2) both provisions mirror the language used in Rule 82(b)(2),
which provides for “costs and actual reasonable attorney fees.” 27 He also cites
several cases in which the Alaska Supreme Court applied Rule 82 to determine an
award of attorney’s fees. 28
These arguments are unavailing.
First, AS §§ 09.45.164(c) and
09.45.167(a) are precisely the type of governing provisions of law that apply in
place of Rule 82, as Alaska Supreme Court precedent establishes. 29 Indeed, the
legislative history makes clear that Rule 82 does not apply to actions brought under
AS §§ 09.45.164(c) and 09.45.167(a):
CHAIRMAN ROKEBERG questioned whether "actual reasonable
attorney fees" would equal 100 percent reimbursement.
MR. WOOLIVER replied that is correct, as long as the fees are
reasonable.
CHAIRMAN ROKEBERG clarified that Rule 82 and the others that
pertain to the allocation does [sic] not come into play in this
situation.
MR. WOOLIVER said that is true.
***
27
Docket 259 at 7, 8. (citing In re Vernon H., 332 P.3d at 576-77).
28
Docket 259 at 8, 9.
See Eldemar v. Weissmuller, No. S-17214, 2019 WL 2524245, at *1 (Alaska June 19, 2019)
(quoting Vazquez,146 P.3d at 2) (“We have held that if ‘statutes call for an award of reasonable
attorney’s fees to a prevailing party, . . . reasonable actual fees are intended rather than
reasonable partial fees’ as awarded in other contexts.”).
29
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 9 of 22
REPRESENTATIVE RYAN asked if Rule 82 applies to everyone else,
why a more punitive provision is included in SB 195 allowing
reimbursement of the full amount.
MR. WOOLIVER replied a lot of legislation comes with that same
language requiring "actual reasonable attorney fees." Its purpose
is to act as an extra disincentive for harassment action. Rule 82
was designed to not discourage legitimate lawsuits where the cost
of attorneys' fees can preclude a person from pursuing a case. 30
In light of the above, the Court is confident that the Alaska Supreme Court would
find that the State’s nonconsensual lien statute is a “specific statutory scheme” with
which Rule 82 would “interfere” if the Court were to apply it here. 31
The Court further finds that AS §§ 09.45.164(c) and 09.45.167(a) apply even
if TD Ameritrade does not have real or personal property in Alaska. There is no
language in those provisions imposing such a burden of proof on the party against
whom a nonconsensual lien is filed. Moreover, the legislative history supports an
interpretation of the provisions’ wide applicability to liens filed in relation to any
property, whether in Alaska or elsewhere. 32 Although AS § 09.45.164(a) contains
the phrase “[a] person whose real or personal property is subject to a claim of
Minutes, H. Labor and Commerce Standing Comm. Sess. Regarding S.B. 195, nos. 1142-62,
20 Alaska State Leg. (Mar. 2, 1998),
https://www.akleg.gov/basis/Meeting/Detail?Meeting=HL%26C%201998-0302%2015:22:00#tab3_4 (emphasis added).
30
31
In re Vernon H., 332 P.3d at 576 (internal quotations and citations omitted).
See Minutes, S. Judiciary Comm. Sess. Regarding S.B. 195, no. 001, 20 Alaska State Leg.
(Feb. 16, 1998), https://www.akleg.gov/basis/Meeting/Detail?Meeting=SJUD%201998-0216%2013:30:00 (“[T]his type of lien has no relation to the property itself.”).
32
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 10 of 22
nonconsensual common law lien . . .” (emphasis added), the statute does not
directly address a situation where a claimant records an invalid lien against an
entity that does not own property in the state of Alaska. But surely, the Alaska
Legislature did not intend for such a claimant to avoid liability for attorney’s fees
when an equally responsible claimant who directs an invalid lien toward a holder
of property located in Alaska is liable for the responding party’s attorney’s fees.33
Additionally, the definition of “nonconsensual common law lien” does not limit such
a lien to real or personal property located in the State of Alaska. 34 Reading this
distinction into a compensatory and punitive statute would run directly counter to
the legislature’s intent to fully compensate the respondents for their reasonable
attorney’s fees and other costs. 35 TD Ameritrade’s potential lack of property in
Cf. Hollinger v. Titan Cap. Corp., 914 F.2d 1564, 1574 (9th Cir. 1990) (rejecting an
interpretation of a federal securities law that would have distinguished independent contractors
from agents because doing so “would be an unduly restrictive reading of the statute and would
tend to frustrate Congress’ goal of protecting investors.”).
33
34
AS § 09.45.169(2) defines “nonconsensual common law lien” as:
a lien on real or personal property that
(A) is not provided for by a specific state or federal statute or municipal
ordinance;
(B) does not depend on the consent of the owner of the property affected for its
existence; and
(C) is not an equitable, constructive, or other lien imposed by a court recognized
under state or federal law . . .
See AS 09.45.167(a) (establishing liability “for actual and punitive damages, as well as costs
and actual reasonable attorney fees”); Minutes, H. Labor and Commerce Standing Comm.
Sess. Regarding S.B. 195, no. 1216, 20 Alaska State Leg. (Mar. 2, 1998),
https://www.akleg.gov/basis/Meeting/Detail?Meeting=HL%26C%201998-0335
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 11 of 22
Alaska did not eliminate its need to pursue legal remedies to cancel Mr. Matthews’
invalidly recorded documents.
Nor is it compelling that AS §§ 09.45.164(c), 09.45.167(a), and Rule 82
share the “actual reasonable attorney[’s] fees” language. 36 If anything, when read
in context, this language demonstrates the opposite of what Mr. Matthews asserts.
Rule 82 provides that a court “shall award the prevailing party in a case resolved
without trial 20 percent of its actual attorney’s fees which were necessarily
incurred.” 37 In contrast, AS §§ 09.45.164(c) and 09.45.167(a) use similar language
without including a percentage cut. If Rule 82 did not include the phrase “20
percent of” before “its actual attorney’s fees,” the rule could be construed as
allowing a party to recover its full attorney’s fees necessarily incurred. Because
AS §§ 09.45.164(c) and 09.45.167(a) contain similar language but omit the phrase
requiring courts to apply a percentage reduction, the natural implication is that a
court applying the attorney’s fee provisions of AS §§ 09.45.164(c) and
09.45.167(a) should not apply a percentage reduction.
02%2015:22:00#tab3_4 (describing the statute’s attorney’s fee provisions’ purpose “to act as an
extra disincentive for harassment action”).
36
AS § 09.45.164(c); AS § 09.45.167(c); Alaska R. Civ. P. 82(b)(2).
37
Alaska R. Civ. P. 82(b)(2).
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 12 of 22
Moreover, the cases Mr. Matthews cites in which the Alaska Supreme Court
applied Rule 82 are inapposite. 38 In three of the four cases, neither the court nor
the party requesting fees identified a governing substantive attorney’s fee
statute. 39 Instead, Rule 82 applied as a default to the attorney’s fee awards in
question. The fourth case Mr. Matthews cites, Pollard, centered on the limits to a
statutory attorney’s fee provision that differed in material respects from the
provisions at issue here. 40 There, the Alaska Supreme Court recognized that the
so-called “divorce exception” to Rule 82 only applies until the divorce is finalized
because the operative statute only applies to fee awards “[d]uring the pendency of
the action.” 41 After the divorce is finalized, Rule 82 then applies because the
statutory exception no longer applies.
By contrast, AS §§ 09.45.164(c) and
09.45.167(a) contain no such limitation. In sum, none of these cases stands for
See Docket 259 at 8, 9 (first quoting Windel v. Matanuska-Susitna Borough, 496 P.3d 392,
402-03 (Alaska 2021); then citing Blair v. Fed. Ins. Co., 433 P.3d 1048, 1050 n.1 (Alaska 2018);
then citing Sykes v. Lawless, 474 P.3d 636, 646-47 (Alaska 2020); and then citing Pollard v.
Pollard, No. S-17575, 2020 WL 3572621, at *2-3 (Alaska July 1, 2020)).
38
In Windel and Sykes, the prevailing parties expressly cited Rule 82, not a substantive statute,
as supporting authority in their fee requests. See Matanuska-Susitna Borough’s Motion for
Attorney’s Fees, Windel v. Matanuska-Susitna Borough, 496 P.3d 392 (Alaska 2021) (No. 3PA15-02151 Cl.), 2018 WL 4216767; Motion for Enhanced Attorney’s Fees, Sykes v. Lawless, 474
P.2d 636 (Alaska 2020), 2018 WL 8343643. In Blair, the issue before the court was whether an
insured’s attorney’s fees already calculated under Rule 82 were included in his policy limits, not
whether Rule 82 would apply to determine a fee award. 433 P.3d at 1050-51.
39
40
No. S-17575, 2020 WL 3572621 at *2.
Id. at *3; see also AS § 25.24.140(a)(1) (“During the pendency of the action, a spouse may . .
. be awarded expenses, including (1) attorney fees and costs . . .”).
41
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 13 of 22
the proposition that Rule 82 applies in the face of substantive statutes that allow,
without limitation, the recovery of the prevailing party’s full actual reasonable
attorney’s fees.
II.
Reasonableness of the Requested Fee Award
Mr. Matthews urges the Court to evaluate the discretionary factors set forth
in Rule 82(b)(3) to reduce or deny any fee award. 42
He contends that TD
Ameritrade’s fees were not “necessarily incurred” and that the hours billed were
not commensurate with the simplicity of the legal issues that he asserts could have
been resolved through “a simple motion” because the lien he recorded “was clearly
invalid.” 43
As discussed above, Rule 82 does not apply to this attorney’s fee award,
and the Court need not evaluate the discretionary factors of Rule 82(b)(3) to
determine the reasonableness of TD Ameritrade’s requested fee award. Still, the
Court should consider “all factors relevant to reasonableness” in evaluating the
request, which may nonetheless include the Rule 82(b)(3) factors as well as those
set forth in Alaska Bar Rule 35 and Alaska Rule of Professional Conduct 1.5. 44
42
Docket 256 at 4, 5.
43
Docket 256 at 10.
See, e.g., Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 332 P.3d 554, 559 (Alaska
2014) (“But we recognized that when the list of factors in Rule 1.5 does ‘have a place in a
court’s calculation of reasonable actual fees, it is most likely in determining whether the hourly
rate charged is reasonable.’”); AS 09.45.164(c) (authorizing an award of “actual reasonable
attorney fees”) (emphasis added); AS 09.45.167(a) (same).
44
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 14 of 22
Some of the factors articulated in those rules, particularly the “reasonableness of
the attorneys’ hourly rates and the number of hours expended,” are helpful in
evaluating TD Ameritrade’s requested attorney’s fees. 45 Indeed, “[c]ourts often
approach the question [of determining the reasonableness of a fee request] by
determining whether the hourly rate charged was reasonable and whether the
number of hours worked was reasonable.” 46 Accordingly, the Court will discuss
those factors most relevant here and, in doing so, address Mr. Matthews’
arguments in favor of a reduced award.
Alaska R. Civ. P. 82(b)(3). The other Rule 82 factors are: the complexity of the litigation; the
length of trial; the reasonableness of the number of attorneys used; the attorneys’ efforts to
minimize fees; the reasonableness of the claims and defenses pursued by each side; vexatious
or bad faith conduct; the relationship between the amount of work performed and the
significance of the matters at stake; the extent to which a given fee award may be so onerous to
the non-prevailing party that it would deter similarly situated litigants from the voluntary use of
the courts; the extent to which the fees incurred by the prevailing party suggest that they had
been influenced by considerations apart from the case at bar, such as a desire to discourage
claims by others against the prevailing party or its insurer; and other equitable factors deemed
relevant. Id. The Alaska Bar Rule 35 factors are: the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to properly perform the legal service;
the likelihood that the acceptance of the particular employment will preclude other employment
by the attorney; the fees customarily charged in the locality for similar legal services; the amount
involved and the results obtained; the nature and length of the professional relationship with the
client; the time limitations imposed by the client or by the circumstances; the experience,
reputation, and ability of the attorney or attorneys performing the services; and whether the fee
is fixed or continent. Alaska Bar Rule 35(a). These factors are similar to and overlap
significantly with those that Ninth Circuit district courts use to evaluate the reasonableness of
attorney’s fee awards in cases involving federal claims. See Kerr v. Screen Actors Guild, Inc.,
526 F.2d 67, 70 (9th Cir. 1975) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 71720 (5th Cir. 1974)) (listing twelve factors courts should consider when evaluating attorney’s fee
applications).
45
Valdez Fisheries, 217 P.3d at 833 (first citing Alaska R. Civ. P. 82(b)(3); and then citing Alaska
Bar Rule 35(a)).
46
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 15 of 22
A. TD Ameritrade’s Submission
Although TD Ameritrade’s fee request meets the procedural requirements of
Local Civil Rule 54.2 and Federal Rule of Civil Procedure 54, TD Ameritrade has
not adequately demonstrated that the hourly rates charged by its firm’s partners
are reasonable in the District of Alaska, despite having been accorded a second
opportunity to do so. Specifically, TD Ameritrade’s references to the rates charged
by its own Alaska counsel are insufficient to establish the hourly rate for this locality,
and, in any event, show that out-of-state attorney Ms. Ronen’s rates generally were
higher than those charged by TD Ameritrade’s Alaska attorneys. 47 The 2017-2018
U.S. Consumer Law Attorney Fee Survey Report supports a similar conclusion, as
it identifies Alaska state-wide average and median hourly rates for all attorneys of
$325 and a median metropolitan attorney hourly rate of $400. 48 The 95% median
hourly rate for all attorneys in Alaska of $500 comes closer to the partner-level
range billed in this case but still falls well below the highest rates at which Ms.
Ronen billed in recent years. 49 The survey also identifies the same or lower rates
See Docket 254-1 at 2, 3, ¶¶ 2, 3 (identifying hourly rates of $467.50, $548, $580, and $639
for time spent by partners working on this matter); Docket 253 at 3 (Order Re Motion for
Attorneys’ Fees); Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) (“[T]he burden is on the fee
applicant to produce satisfactory evidence—in addition to the attorney’s own affidavits—that the
requested rates are in line with those prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience and reputation.”).
47
48
Docket 254-1 at 104.
49
See Docket 254-1 at 104 (identifying a 95% median hourly rate of $500); Docket 254-1 at 2,
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 16 of 22
for attorneys in Anchorage, where this Court is physically located. 50 The Court
acknowledges that billing rates have likely increased in recent years but finds that
TD Ameritrade has not offered any evidence of how much, if at all, hourly rates
may have increased in the District of Alaska.
B. A Reasonable Award
In recent years, federal and state courts in Alaska have found rates ranging
from $275 to $400 per hour to be reasonable for Alaska attorneys, depending on
their years of experience and the subject matter. 51 Based on these cases, the
Court’s familiarity with rates typically charged in this District, the 2017-2018 U.S.
Consumer Law Attorney Fee Survey Report TD Ameritrade cited, and the relatively
straightforward nature of TD Ameritrade’s lien claim, the Court finds that a rate of
$400 per hour is a reasonable hourly rate for the partners who billed time on this
3, ¶¶ 2, 3 (identifying Ms. Ronen’s hourly rates of $548, $580, and $639).
See Docket 254-1 at 106 (identifying an average attorney rate for all Anchorage attorneys of
$320 per hour, a median rate for all Anchorage attorneys of $325 per hour, and a 95% median
rate for all Anchorage attorneys of $475 per hour).
50
See Gwitchyaa Zhee Corp. v. Alexander, No. 4:18-cv-0016-HRH, 2021 WL 1061974, at *5-6
(D. Alaska Mar. 18, 2021) (finding hourly rates ranging from $275 to $390 to be reasonable for
Anchorage attorneys in an ejectment case); Seward Prop. v. Arctic Wolf Marine, Inc., No. 3:18cv-00078-SLG, 2022 WL 17414964, at *3 (D. Alaska Dec. 5, 2022) (finding hourly rates of up to
$350 reasonable in the District of Alaska); Warnke-Green v. Pro-W. Contractors, LLC, 440 P.3d
283, 293 (Alaska 2019) (noting that a $400 hourly rate has been awarded in workers’
compensation cases); Nautilus Marine, 332 P.3d at 557 n.11 (noting hourly rates of $325 and
$375 billed by Anchorage attorneys litigating a case related to the Exxon Valdez oil spill);
Cooper v. Thompson, 353 P.3d 782, 796 (Alaska 2015) (affirming a lower court’s finding that an
hourly rate of $295 was reasonable for counsel practicing personal injury law).
51
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 17 of 22
matter. 52 The Court finds that a $400 hourly rate, rather than a rate closer to $300
per hour, is warranted for Ms. Ronen given her approximately 20 years of
experience through the present. 53 The Court will adjust TD Ameritrade’s partner
rates accordingly but will leave unadjusted the rates at which TD Ameritrade’s
counsel billed for associates and paralegals. 54
In considering the time spent on this matter, the Court finds that TD
Ameritrade’s counsel billed a reasonable number of hours. 55 The lien matter
involved Mr. Matthews’ filing of meritless documents, as Mr. Matthews now
concedes; and yet it took over five years from the filing of the original complaint to
resolve the lien matter. 56 TD Ameritrade’s counsel billed 95.7 hours on this matter
during that time. 57 This amount of time is not unreasonable given the voluminous
documents Mr. Matthews generated during the course of this the litigation, the
Mr. Matthews advocates for a $300 hourly rate, citing a blog post that relies on unspecified
data. See Docket 256 at 7 (citing How Much Do Lawyers Cost: Fees Broken Down by State,
ContractsCounsel (Aug. 17, 2021), https://www.contractscounsel.com/b/how-much-do-lawyerscost). Mr. Matthews does not explain why the Court should rely on this blog post, and so the
Court will not base its determination of a reasonable hourly rate on this source.
52
53
See Docket 254-1 at 78-80 (Biography of Melanie Ronen).
54
Docket 254-1 at 2, 3, ¶¶ 2, 3.
55
See Docket 254-1 at 2, 3, ¶¶ 2, 3 (identifying hours spent by each timekeeper).
See Docket 1 (TD Ameritrade’s original complaint, filed on June 27, 2016); Docket 239 (the
Court’s August 26, 2021 judgment invalidating and cancelling the liens); Docket 198-1 at 5-6
(Dep. of James Matthews) (acknowledging that he recorded the lien in order “to get the attention
of a company . . .”).
56
57
Docket 254-1 at 2, 3, ¶¶ 2, 3.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 18 of 22
motion practice leading to the Court’s invalidation and cancellation of the liens, and
the time spent preparing this motion for attorney’s fees. 58 Mr. Matthews argues
that TD Ameritrade’s counsel used “largely partners for at best associates [sic]
work, and more likely paralegal level work.” 59 Although partners did bill more time
than did associates or paralegals, there is no indication from TD Ameritrade’s
billing records that the partners worked inefficiently or spent significant amounts of
time on work more appropriately suited for associates. 60 Mr. Matthews also takes
issue with what he claims are non-contemporaneous time records and redactions
that he alleges obscure “just what was done by each attorney.” 61 These claims are
unsupported.
The legal invoices do contain substantial redactions, but the
redactions appear to be reasonably tailored to remove confidential information or
time entries related to other facets of this litigation unrelated to the lien matter. The
See, e.g., Docket 4 (Amended Complaint); Docket 114 (Scheduling and Planning Order);
Docket 189 (Order Re Motion for Expedited Consideration of the December 3, 2020 Motion for
Immediate Stay of All Proceedings Including Discovery); Docket 198 (Motion for Cancellation
and Declaratory Judgment); Docket 210 (Response in Opposition to Motion for Cancellation and
Declaratory Judgment); Docket 217 (Reply in Support of Motion for Cancellation and
Declaratory Judgment); Docket 249 (Motion for Attorneys’ Fees).
58
59
Docket 256 at 7.
See, e.g., Docket 254-1 at 8-16 (identifying associate time spent researching and drafting the
complaints, summonses, a declaration, and a motion for an extension of time for service of the
amended complaint); Docket 254-1 at 19 (identifying associate time spent researching Mr.
Matthews’ recordings and liens). There were instances later in the litigation when Ms. Ronen
spent time researching the law, but the time spent is not unreasonable in the Court’s view. See,
e.g., Docket 254-1 at 40, 42 (identifying .3 and 1 hours spent by Ms. Ronen on legal research
into possible claims and Alaska statutes).
60
61
Docket 256 at 11.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 19 of 22
time entries that are viewable are contemporaneous; that is, they contain dates
and the time spent on each task as well as the timekeeper’s billing rate and a
description of the task performed. 62
The Court has identified no material
deficiencies with these billing records.
Taking into consideration the above, the Court will issue a total attorney’s
fee award of $33,164.75, as calculated below:
Professional
Hours
Courtney Collins 33.50
(associate)
Herbert
Ray 1.20
(shareholder)
Time Period
4/16 – 9/16
Zachary Berne 1.10
(associate)
Melanie Rosen 29.90
(shareholder)
11/18 – 1/19
Melanie Rosen 11.30
(shareholder)
3/21 – 9/21
Melanie Rosen 3.00
(shareholder)
6/22
Leslie
Smith 0.50
(paralegal)
Melanie Ronen 8.40
(shareholder)
1/21 – 2/21
Melanie Sharpe 6.80
(paralegal)
Total
7/22
62
5/16 – 9/16
8/19 – 2/21
7/22
Hourly Rate
$284.75
(unadjusted)
$400.00
(adjusted
downward from
$467.50)
$284.75
(unadjusted)
$400.00
(adjusted
downward from
$548)
$400.00
(adjusted
downward from
$580)
$400.00
(adjusted
downward from
$639)
$212.00
(unadjusted)
$400.00
(adjusted
downward from
$639)
$248.00
(unadjusted)
See generally Docket 254-1 at 8-76.
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 20 of 22
Total Fees
$9,539.13
$480.00
$313.22
$11,960.00
$4,520.00
$1,200.00
$106.00
$3,360.00
$1,686.40
$33,164.75
Mr. Matthews’ arguments for a more substantial reduction are not
persuasive. There was no indication of bad faith or vexatious conduct on behalf
of TD Ameritrade or its counsel. 63
“questionable” or “inhumane.” 64
Nor were TD Ameritrade’s motivations
Given Mr. Matthews’ recording of meritless
documents despite repeated correspondence from TD Ameritrade as to their lack
of merit, TD Ameritrade had little choice but to hire counsel to seek a court order
invalidating those recordings. 65 Mr. Matthews also claims that he was “willing[] to
cancel the lien (or join in a stipulated court order that purpose),” but he opposed
TD Ameritrade’s motion to cancel the documents and had not yet sought to cancel
all of the documents on his own by the time TD Ameritrade filed its motion for
cancellation. 66 But for Mr. Matthews’ actions and years-long failure to cancel the
documents he filed, TD Ameritrade would not have had to incur the attorney’s fees
for which it seeks compensation here.
63
Docket 256 at 12.
64
Docket 256 at 13.
See Docket 4-4 (August 13, 2015 Letter); Docket 4-5 (September 10, 2015 Letter); Docket 48 (December 31, 2015 Letter).
65
See Docket 256 at 11 (Opposition to Renewed Motion for Attorneys’ Fees); Docket 210
(Opposition to TD Ameritrade’s Motion for Cancellation and Declaratory Judgment). In his
opposition to TD Ameritrade’s motion for cancellation and declaratory judgment, Mr. Matthews
informed the Court that the lien filings “were deleted from the Anchorage Recording District
records,” but this was false. See Docket 225 at 3 (“[W]e have rechecked the information on file
in the Anchorage Recording District . . . and in fact the previous filing by Mr. Matthews . . . had
not been stricken from the records.”).
66
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 21 of 22
The Court has considered the financial impact that an award of tens of
thousands of dollars could have an individual like Mr. Matthews. 67 But this does
not warrant a further fee reduction, particularly when Alaska law expressly provides
for TD Ameritrade’s recovery of its full reasonable attorney’s fees. 68 And while this
fee award may deter others from filing nonconsensual liens, that is precisely what
the Alaska Legislature intended when it enacted AS §§ 09.45.164(c) and
09.45.167(a).
CONCLUSION
For the reasons described above, TD Ameritrade’s Renewed Motion for
Attorneys’ Fees at Docket 254 is GRANTED in part and DENIED in part.
IT IS HEREBY ORDERED that TD Ameritrade shall recover from Mr.
Matthews $33,164.75 in attorney’s fees.
The Clerk of Court shall enter an
amended judgment accordingly.
DATED this 19th day of December, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
See Docket 256 at 14 (citing Alaska R. Civ. P. 82(b)(3)) (describing Mr. Matthews’ financial
situation).
67
68
AS § 09.45.164(c); AS § 09.45.167(a).
Case No. 3:16-cv-00136-SLG, TD Ameritrade, et al. v. Matthews
Order Re Renewed Motion for Attorney’s Fees
Page 22 of 22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?