Barbee v. DNSPWR2 LLC et al
Filing
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ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney Fees and Costs (doc. 18 ) is granted in part. Defendants shall pay Plaintiff a total of $6,897.30 in fees and expenses. Defendants are jointly and severally liable for payment of the fees and expenses. (See document for complete details). Signed by Magistrate Judge Michael T Morrissey on 11/16/20. (SLQ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Mark Barbee,
No. CV-20-08100-PCT-MTM
Plaintiff,
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v.
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ORDER
DNSPWR2 LLC, et al.,
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Defendants.
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Before the Court is Plaintiff’s Motion for Attorney Fees and Costs (doc. 18), filed
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November 11, 2020. Plaintiff seeks fees and costs in the total amount of $7,142.30 in
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connection with this action. Specifically, Plaintiff requests attorney fees in the amount of
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$5,425.00 and costs in the amount of $1,717.30. (Doc. 18 at 7). For the reasons explained
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below, the Court awards Plaintiff $6,987.30 in fees and costs associated with this action.
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I.
Background.
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This action commenced in this Court on April 27, 2020. (Doc. 1). Plaintiff
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successfully served all Defendants and filed proof of service with the Court on May 8,
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2020. (Docs. 8-12). On May 27, 2020, after the time for Defendants to file a responsive
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pleading passed, the Clerk of Court entered default against all Defendants. (Doc. 14).
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On May 28, 2020, Plaintiff filed a Motion for Default Judgment. (Doc. 15). Plaintiff
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provided evidence that not only had Defendants received notice of this action via service
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of process but had at one point retained counsel to represent them in this matter. (Id. at 5).
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Plaintiff further averred that Defendants dismissed their attorney prior to the expiration of
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time to respond to the Complaint. (Id.) Plaintiff requested the Court award $10,000.00 for
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statutory and actual damages, and an additional amount in attorney fees and expenses to be
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determined by a subsequent filing in this Court. (Id. at 6-7).
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On November 10, 2020, the Court granted Plaintiff’s motion and awarded
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$10,000.00 in damages. (Doc. 16). The Court also ordered Plaintiff to file a separate motion
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for attorney fees within fourteen (14) days after issuance of default judgment. (Id. at 9). On
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November 11, 2020, Plaintiff filed the instant Motion for Attorney Fees (doc. 18).
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II.
Analysis.
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A.
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A party who prevails in an FLSA action is entitled by law to an award of attorneys’
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fees. Gary v. Carbon Cycle Ariz. LLC, 398 F. Supp. 3d 468, 478 (D. Ariz. 2019), citing
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Houser v. Matson, 447 F.2d 860, 863 (9th Cir. 1971). The award of attorneys’ fees includes
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the time spent preparing the motion for the fee itself. Gary, 398 F. Supp. 3d at 479, citing
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In re Nucorp Energy, Inc., 764 F.3d 655, 659-60 (9th Cir. 1985).
Principles of Law.
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When determining an appropriate fee award under the FLSA, the Court uses the
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lodestar method. Gary, 398 F. Supp. 3d at 485. The lodestar method is calculated “by
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multiplying the number of hours the prevailing party reasonably expended on the litigation
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by a reasonable hourly rate.” Id., citing Morales v. City of San Rafael, 96 F.3d 359, 363
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(9th Cir. 1996).
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Rule 54.2 of the Local Rules of Civil Procedure establishes additional guidelines
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for the Court to assess in determining the reasonableness of the fee award. Those factors
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include, but are not limited to:
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(A) the time and labor required of counsel; (B) the novelty and difficulty of
the questions presented; (C) the skill requisite to perform the legal service
properly; (D) the preclusion of other employment by counsel because of the
acceptance of the action; (E) the customary fee charged in matters of the type
involved; (F) whether the fee contracted between the attorney and the client
is fixed or contingent; (G) any time limitations imposed by the client or the
circumstances; (H) the amount of money, or the value of the rights, involved,
and the results obtained; (I) the experience, reputation and ability of counsel;
(J) the “undesirability” of the case; (K) the nature and length of the
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professional relationship between the attorney and the client; (L) awards in
similar actions; and (M) any other matters deemed appropriate under the
circumstances.
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LRCiv. 54.2(c)(3). See also Reyes v. LaFarga, No. CV-11-01998-PHX-SMM, 2015 WL
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12425810 at *3 (D. Ariz. July 16, 2015).
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B.
Application of Law.
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Attorneys’ Fees.
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The Court concludes Plaintiff’s proposed hourly rate of $350.00 is reasonable.
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Plaintiff’s counsel has been a practicing attorney in the District of Arizona since January
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2012 and has litigated numerous FLSA cases in the past. (Doc. 18-1, Ex. 1 at 2-3). A
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number of courts in the District of Arizona have awarded hourly rates comparable to
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Plaintiff’s requested rate in FLSA actions. See Gary, 398 F. Supp. 3d at 486 ($325.00 per
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hour considered reasonable); Audra Grabda v. IMS Acquisition LLC, No. CV-20-00117-
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TUC-MSA, 2020 WL 6680378 at *1 (D. Ariz. Nov. 12, 2020) (reducing proposed $395.00
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per hour rate to $325.00 per hour); Thompson v. Ariz. Movers and Storage Inc., No. CV-
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17-03819-PHX-DGC, 2018 WL 2416187 at *2 (D. Ariz. May 29, 2018) (rates of $325.00
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and $300.00 considered reasonable). Although Plaintiff’s requested hourly rate is slightly
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higher than the rates awarded by other Courts in the District of Arizona, Plaintiff is not
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seeking compensation for work performed by support staff even though such work may be
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compensated as part of a fee award. See Graves v. Penzone, No. CV-77-00479-PHX-NVW,
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2020 WL 1984022 at *6 (D. Ariz. Apr. 27, 2020). See also Missouri v. Jenkins by Agyei,
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491 U.S. 274, 284-85 (1989) (“Clearly, a ‘reasonable attorney's fee’ [as defined by 42
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U.S.C. § 1988] cannot have been meant to compensate only work performed personally by
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members of the bar. Rather, the term must refer to a reasonable fee for the work product of
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an attorney.”). The $350.00 per hour rate is not unreasonable in this case.
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Although the Court concludes Plaintiff’s $350.00 hourly rate is reasonable, the
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Court credits 14.8 out of the 15.5 submitted hours of work towards calculation of the fee
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award. Most of the itemized list of activities performed by counsel during litigation are
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reasonable in both duration and nature. However, some of the tasks itemized by Plaintiff—
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reviewing Plaintiff’s own filings in the Court’s electronic filing system or reading the Clerk
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of Court’s one-page default judgment entry—do not require an experienced attorney or
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support staff to perform, and are therefore not recoverable in a fee award. See Gary, 498
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F. Supp. 3d at 487 (collecting cases). Therefore, the Court strikes lines nine, ten, fourteen,
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twenty-nine, thirty, and thirty-four in Plaintiff’s itemized list of expenses from its fee award
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calculation, leaving Plaintiff with 14.8 out of 15.5 billable hours of work. Applying the
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$350.00 hourly rate, the Court awards attorney fees in the amount of $5,180.00.
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2.
Costs.
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The Court awards $1,717.30 in costs. The requested amount for compensation of
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the court filing fee and service expenses are consistent with the submitted evidence (see
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doc. 18-3, Ex. 3 at 2), and $1,000.00 in collection costs is not unreasonable. See, e.g.,
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Export Dev. Canada v. Patterson, Inc., No. 08-978-JO, 2008 WL 5205199 at *1 (D. Or.
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Dec. 11, 2008) (awarding $2,000.00 for “potential collection efforts” after entry of default
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judgment). The Court therefore awards Plaintiff the full amount sought for costs.
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III.
Conclusion.
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Considering the successful representation in this matter, the attempts to facilitate
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resolution on the merits, and the reasonableness of Plaintiff’s fee request, the Court grants
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the motion with minor alterations. Therefore, the Court awards Plaintiff a total of $6,897.30
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in fees and expenses.
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IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney Fees and Costs
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(doc. 18) is granted in part. Defendants shall pay Plaintiff a total of $6,897.30 in fees and
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expenses. Defendants are jointly and severally liable for payment of the fees and expenses.
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Dated this 16th day of November, 2020.
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Honorable Michael T. Morrissey
United States Magistrate Judge
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