Bultemeyer v. CenturyLink Incorporated

Filing 306

ORDER denying without prejudice 281 Motion for Attorney Fees; denying as moot and without prejudice 297 Motion for Leave to File. Signed by Judge Steven P Logan on 3/6/25. (MJW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lydia Bultemeyer,

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Plaintiff,
vs.

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CenturyLink Incorporated,
Defendant.

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No. CV-14-02530-PHX-SPL
ORDER

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Before the Court is Plaintiff Lydia Bultemeyer’s Motion for Attorneys’ Fees, Costs,

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and Service Award (Doc. 281), Defendant CenturyLink Incorporated’s Response (Doc.

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294), and Plaintiff’s Reply (Doc. 296). Also before the Court is Defendant’s Motion for

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Leave to File Sur-Reply in Opposition to Plaintiff’s Motion for Attorneys’ Fees (Doc. 297),

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which the parties have fully briefed (Docs. 299, 300). The Court now rules as follows.

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I.

BACKGROUND

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On November 14, 2014, Plaintiff Lydia Bultemeyer filed this lawsuit alleging that

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Defendant CenturyLink, Inc. (“CenturyLink”) violated the Fair Credit Reporting Act

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(“FCRA”), 15 U.S.C. § 1681b, by obtaining her credit report, and those of putative class

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members, without a permissible purpose. (Doc. 1). On February 2, 2023, the Court certified

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this matter as a class action pursuant to Federal Rule of Civil Procedure (“Rule”) 23(b)(3).

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(Doc. 178).

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On September 16, 2024, following a jury trial, judgment was entered in favor of

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Plaintiff. (Doc. 251). The jury found that Defendant violated the FCRA and awarded

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Plaintiff damages in the amount of $500.00 in statutory damages and $2,000.00 in punitive

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damages per class member. (Id.; Doc. 287). Defendant subsequently filed a Notice of

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Appeal to the Ninth Circuit Court of Appeals. (Doc. 273). The Ninth Circuit issued an

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Order staying appeal until the Court ruled on pending tolling motions in the case. (Doc.

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276).

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Plaintiff subsequently filed the present Motion for Attorneys’ Fees, Costs, and

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Service Award. (Doc. 281). Plaintiff requests the Court award attorneys’ fees under the

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“percentage-of-recovery” method in the amount of 25 percent of the common fund created

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by their successful litigation, which Plaintiff purports to total $35,046,875.00; an additional

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$111,137.33 in unreimbursed taxable and non-taxable costs; and a $100,000 service award

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for named Plaintiff Lydia Bultemeyer. (Id. at 2). Defendant argues that Plaintiff’s motion

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should be denied because (1) a common fund award is inappropriate here, and Plaintiff’s

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alternative request for a lodestar award with a multiplier of 11 is unwarranted; (2) Plaintiff

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did not comply with the requirements of LRCiv 54.1 for her request for costs; and (3) there

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is no basis for a service award to the named plaintiff under the FCRA. (Doc. 294 at 3, 12).

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II.

DISCUSSION

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Federal Rule of Civil Procedure (“Rule”) 54(d)(2) governs motions for attorneys’

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fees. Fed. R. Civ. P. 54(d)(2). The Advisory Committee Notes to the Rule provide that “[i]f

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an appeal on the merits of the case is taken, the court may rule on the claim for fees, may

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defer its ruling on the motion, or may deny the motion without prejudice, directing under

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subdivision (d)(2)(B) a new period for filing after the appeal has been resolved.” Fed. R.

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Civ. P. 54(d)(2) advisory committee’s note to 1993 amendment. Courts often will want to

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resolve fee disputes shortly after trial, “while the services performed are freshly in mind”

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and in order to “make its ruling on a fee request in time for any appellate review of a dispute

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over fees to proceed at the same time as review on the merits of the case.” Id. “However,

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where the issues on appeal carry a significant potential that the Ninth Circuit’s disposition

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may greatly affect the Court’s consideration of the motion for attorneys’ fees, a court is

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within its discretion to postpone a ruling on the attorneys’ fee motion.” Mohave Cnty., Ariz.
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v. Lexon Sur. Grp. LLC, No. CV-14-08011-PCT-DJH, 2016 WL 11786996, at *1 (D. Ariz.

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Sept. 29, 2016) (cleaned up).

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Other district courts within the Ninth Circuit have routinely found that the reasoning

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of the advisory committee’s note to the 1993 Amendment to Rule 54 is also applicable to

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costs. Jones v. Cnty. of Tulare, Cal., No. 1:17-CV-1260-SKO, 2024 WL 3673150, at *1

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(E.D. Cal. Aug. 5, 2024) (collecting cases). To that end, other courts in the Ninth Circuit

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typically consider the disposition of named plaintiff service awards in class action cases

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along with attorneys’ fees and costs. See generally Vasquez v. Coast Valley Roofing, Inc.,

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266 F.R.D. 482, 490 (E.D. Cal. 2010); Carlin v. DairyAmerica, Inc., 380 F. Supp. 3d 998,

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1018 (E.D. Cal. 2019). As such, the Court finds it appropriate to apply the advisory

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committee note’s reasoning to Plaintiff’s request for a service award, as well.

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Here, the Court finds it prudent to defer ruling on Plaintiff’s requests for costs, fees,

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and awards until Defendant’s appeal is resolved. Given the complex history of the case and

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issues on appeal, there is a significant potential that the Ninth Circuit’s disposition may

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affect the Court’s consideration of Plaintiff’s Motion. “To make such a determination now

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would not only be premature, but would risk wasting the Court’s judicial resources,

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particularly given the amounts requested by [Plaintiff] and the volume of briefing by the

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parties.” Gypsum Res., LLC v. Clark Cnty., No. 219CV00850GMNEJY, 2023 WL

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7355662, at *2 (D. Nev. Oct. 3, 2023); see also Reading Int’l, Inc. v. Malulani Grp., Ltd.,

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No. 13-cv-00133, 2014 WL 12772247, at *2 (D. Haw. Sept. 25, 2014) (staying motion for

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attorney’s fees in the interest of judicial economy where the amount of money at stake was

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“substantial” and “the request and related briefing are voluminous” and would “involve the

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painstaking review of somewhere between 74 and 101 pages of timesheets.”). Moreover,

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“disposition of the Motion may lead to the filing of additional related motions in the future,

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such as motions for reconsideration and/or objections which would further tax judicial

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resources,” and a preliminary review of the Motion suggests that disposition “may require

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the submission of additional declarations explaining or clarifying time entries or other

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matters.” Reading, 2014 WL 12772247, at *2.
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Accordingly,

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IT IS ORDERED that Plaintiff Lydia Bultemeyer’s Motion for Attorneys’ Fees

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and Costs (Doc. 281) is denied without prejudice. The parties may refile their motions

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and supporting documents within 30 days after the appeal is final, if warranted by the

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Ninth Circuit’s decision. The parties shall file response and reply memoranda in

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accordance with Rule 7.2, Local Rules of Civil Procedure. See LRCiv 54.2(b)(3).

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IT IS FURTHER ORDERED that Defendant CenturyLink’s Motion for Leave to
File Sur-Reply (Doc. 297) is denied as moot and without prejudice.
Dated this 6th day of March, 2025.

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Honorable Steven P. Logan
United States District Judge

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