Zuniga v. Fiesta Pediatric Therapy Incorporated et al

Filing 199

ORDER pursuant to 193 Motion for Attorney Fees: Plaintiff is awarded $322,914.36 in fees and non-taxable costs. FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Magistrate Judge David K Duncan on 6/22/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joanne Zuniga, et al.,

No. CV-15-1978-PHX-DKD

Plaintiffs,

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v.

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Fiesta Pediatric Therapy Incorporated,
et al.,

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ORDER

Defendants.

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Plaintiff Joanne Zuniga, the prevailing party at a bench trial, has applied for

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attorneys fees. (Doc. 193) This matter is now fully briefed. For the reasons explained

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below, the Court will award the requested fees.
Standard of Review

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The Fair Labor and Standards Act (“FLSA”) requires an award of attorneys’ fees

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to a prevailing plaintiff. 29 U.S.C.§ 216(b); Christiansburg Garment Co. v. EEOC, 434

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U.S. 412, 415 n.5 (1978). To determine an appropriate award, the Court starts with the

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lodestar calculation—the reasonable number of hours spent times a reasonable hourly

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rate—and adjusts using any of the following factors that have not already been included

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in the calculation:

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The time and labor required;

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2.

The novelty and difficulty of the questions;

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3.

The skill requisite to perform the legal services properly;

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4.

The preclusion of other employment due to acceptance of the case;

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The customary fee;

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The contingent or fixed nature of the fee;1

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The limitations imposed by the client or the case;

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The amount involved and the results obtained;

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The experience, reputation, and ability of the attorneys;

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The undesirability of the case;

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The nature of the professional relationship with the client; and

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Awards in similar cases.

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Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). The fee application

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was revised to include time incurred after the application was filed and in response to an

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error noted by Defendants. (Doc. 198)

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Untimely Motion

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Defendants argue that Plaintiff is not entitled to any fees because the fee

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application was untimely. (Doc. 195) Plaintiff filed a Notice of Late filing stating that

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the motion was untimely because of technological problems and that it had been timely

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conveyed to Defendants. (Doc. 194) Because it was timely provided to Defendants, the

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Court cannot perceive any prejudice to Defendants in preparing a response and

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Defendants have not argued that they were in any way prejudiced by Plaintiff’s procedure

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to work around their technological problems. As a result, the Court will accept the

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untimely filing.

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However, the Court will not require Defendants to pay fees related to the untimely

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filing since that was entirely caused by Plaintiff’s counsels’ technological problems.

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Accordingly, the Court will reduce Plaintiff’s fee request by $110.00, the amount billed

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to “Draft Notice of Late Filing of Motion for Fees and Costs.” (Doc. 198 at 310)

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Analysis of Kerr Factors

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The time and labor required. Plaintiff’s claim was a straightforward one but this

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matter was anything but straightforward.

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Plaintiffs do not use this factor in their fee application and so the Court will not
consider it.
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The novelty and difficulty of the questions.

FLSA claims are not novel or

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difficult. However, the Court acknowledges that Defendants veered this matter into other

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terrain including bankruptcy, community property, HIPPA, and the fluctuating work

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week. Moreover, this matter was further complicated by the fact that Defendant paid

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Plaintiff twice a month, not every two weeks.

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The skill requisite to perform the legal services properly. Again, this matter was
more complicated than other FLSA cases.

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The preclusion of other employment due to acceptance of the case. The Court

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understands that Plaintiff’s counsel could not accept other work because of the time

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required to work on this matter.

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The customary fee. Counsel for Defendants wrote to counsel for Plaintiff and

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stated that they did not object to hourly rates, between $195 and $275 for Jeff Silence and

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between $400 and 450 for Kraig Marton. (Doc. 193 at ¶ 21) Because the Court agrees

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that these rates are within the customary range for attorneys of their experience in this

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market, this agreement will stand.

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The limitations imposed by the client or the case. Counsel for Plaintiff stated that

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this case was similar to all cases in that there were time limitations. The Court concludes

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that this factor is not applicable here.

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The amount involved and the results obtained. Plaintiff prevailed on her claim and
testified that the amount at issue was significant for her.

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The experience, reputation, and ability of the attorneys. Plaintiff’s counsel have

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submitted unrebutted declarations about their experience in employment law matters.2

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(Doc. 193 at 17-49) The Court will accept these in support of this factor.

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The undesirability of the case. FLSA fees are mandatory because individual cases

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have, by their nature, a small recovery. Accordingly, this factor is included in the

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mandatory nature of the fee award.

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Wisely, Plaintiffs have not sought fees for detours in this case which, with their
experience, they should have known to avoid.
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The nature of the professional relationship with the client.

Counsel has

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represented Plaintiff since the initiation of this litigation and avows that they do not

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expect to represent her in the future.

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Awards in similar cases. Binding precedent confirms that, in similar cases, the fee

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award has dwarfed Plaintiff’s recovery. See, e.g., Avila v. L.A. Police Dep't, 758 F.3d

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1096, 1105 (9th Cir. 2014) (damages were $50,000 and fee award was $579,000); Evon v.

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Law Offices of Sidney Mickell, 688 F.3d 1015, 1033 (9th Cir. 2012); Bonnette v.

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California Health & Welfare Agency, 704 F.2d 1465, 1468 & 1473 (9th Cir. 1983)

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(damages were $18,455 and fees award was $100,000).

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Reductions

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Defendants argue that Plaintiff is not entitled to fees incurred for an injunction

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against harassment. (Doc. 195 at 3) The Court agrees. Even if that skirmish was related

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to this matter, this Court is awarding fees under jurisdiction conferred by the FLSA.

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Plaintiffs have not cited to any authority conferring pendant jurisdiction and the Court

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knows of none. Accordingly, the fee award will be reduced by $5,345.50.

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Next, the Court notes that Plaintiff filed, and then withdrew, a “Motion for

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Production of Billing Documents.” The Court will not award fees against Defendants for

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this. Accordingly, the Court will reduce the fee award by $192.50, the amount incurred

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by this excursion. (Doc. 198 at 310)

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Plaintiff has already reduced her fee request because of typographical error noted

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by Defendants.

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objections are unsupported by case law or citations to the records and are not well taken.

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(Doc. 195)

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(Doc. 198 at 16-17)

The Court concludes that Defendants other

Amount Awarded

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Plaintiff seeks $328,562.36 in fees and non-taxable costs. (Doc. 198 at 2) As

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noted above, this will be reduced by a total of $5,648.00. Therefore, the Court concludes

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that Plaintiff is entitled to an award of $322,914.36.

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IT IS THEREFORE ORDERED that Plaintiff is awarded $322,914.36 in fees
and non-taxable costs.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
Dated this 22nd day of June, 2018.

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