Jared Andresen et al v. International Paper Company et al
Filing
288
MINUTES (IN CHAMBERS) - DEFENDANT INTERNATIONAL PAPER COMPANY'S MOTION TO RECOVER COSTS PURSUANT TO LOCAL RULE 54-3.12 245 ; DEFENDANT'S APPLICATION TO TAX COSTS 246 ; PLAINTIFF JOHN DUFFY'S MOTION FOR ATTORNEYS' FEES AND C OSTS 248 ; PLAINTIFF JOHN DUFFYS APPLICATION TO TAX COSTS 249 by Judge Christina A. Snyder. In accordance with the foregoing, the Court GRANTS IN PART and DENIES IN PART defendant's motion 245 for other costs, and ALLOWS IN PART and DISALLOWS IN PART plaintiffs' objections to defendant's application to tax costs. Plaintiffs are ordered to pay IP a total of $44,819.08 in costs. In accordance with the foregoing the Court GRANTS IN PART and DENIES IN PART Duffys motion for attorneys' fees and costs 248 , awarding him $159,330 in attorneys' fees and $13,125.53 in costs. (See attached document for details.) (lom)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
‘O’
Case No.
2:13-cv-02079-CAS(AJWx)
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
Present: The Honorable
Date
June 10, 2015
CHRISTINA A. SNYDER
Catherine Jeang
Deputy Clerk
Not Present
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not Present
Not Present
Proceedings:
(IN CHAMBERS) - DEFENDANT INTERNATIONAL PAPER
COMPANY’S MOTION TO RECOVER COSTS PURSUANT TO
LOCAL RULE 54-3.12 (Dkt. No. 245, filed April 17, 2015
DEFENDANT’S APPLICATION TO TAX COSTS (Dkt. No. 246,
filed April 17, 2015)
PLAINTIFF JOHN DUFFY’S MOTION FOR ATTORNEYS’
FEES AND COSTS (Dkt. No. 248, filed April 17, 2015)
PLAINTIFF JOHN DUFFY’S APPLICATION TO TAX COSTS
(Dkt. No. 249, filed April 17, 2015)
I.
INTRODUCTION
On February 13, 2013, plaintiffs Jared Andresen (“Andresen”), Yeghia Bekiarian
(“Bekiarian”), and John Duffy (“Duffy”) filed a lawsuit against their former employer
International Paper Company (“IP” or “defendant”) and Does 1 through 50 in Los
Angeles County Superior Court. See Dkt. #1. Defendant removed the action to this
Court on March 22, 2013, on the basis of diversity jurisdiction. Id. The Second
Amended Complaint (“SAC”), filed on July 12, 2013, asserted claims on behalf of all
three plaintiffs for (1) failure to pay vested vacation wages upon termination, in violation
of Cal. Labor Code § 227.3; (2) waiting time penalties in violation of California Labor
Code §§ 202, 203; (3) violations of California’s Unfair Competition Law (“UCL”), Cal.
Bus. & Prof. Code §§ 17200 et seq.; and (4) violations of record-keeping provisions in
California Labor Code § 226. Dkt. #21. The SAC also alleged claims on behalf of
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.
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Date
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Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
Andresen and Duffy for failure to pay commission-based wages in violation of several
provisions of the California Labor Code. Finally, the SAC asserted claims on behalf of
Andresen only for breach of contract and promissory estoppel with regard to severance
pay allegedly owed to Andresen. Id. In a related action consolidated with this case for
purposes of trial, Daniel Farris v. International Paper Inc., et al., 5:13-cv-00485-CAS-SP
(C.D. Cal. filed Mar. 15, 2013), Daniel Farris (“Farris”) brought similar claims against IP
for unpaid vacation wages and waiting time and record-keeping penalties.
A jury trial began on December 2, 2014 and the first of two anticipated trial phases
concluded on December 12, 2014. The jury rendered a verdict, and the Court entered
judgment, (1) in favor of defendant on all plaintiffs’ claims for vacation wages and
waiting time penalties, (2) in favor of defendant on Andresen’s claim for severance pay,
and (3) in favor of Duffy on Duffy’s claim for failure to pay commissions in the amount
of $8,148.48. Dkt. No. 244 at 1–2. The second trial phase was to adjudicate IP’s
counterclaim and third party complaint against Bekiarian for his alleged responsibility for
any accrued but unpaid vacation for which IP was found liable, as well as Bekiarian’s
counterclaim for indemnification. In light of the jury’s verdict, the second phase did not
proceed. Id. at 1. The Court dismissed the jury on December 15, 2014, and dismissed
IP’s counterclaim and third party complaint on December 16, 2014. Id. The Court
entered final judgment on April 2, 2015. Id.
On May 18, 2015, the Court held a hearing on motions and applications for costs
and fees filed by IP and Duffy. With leave of Court, the parties submitted supplemental
briefing addressing issues raised in the Court’s tentative order. Dkt. Nos. 284, 285.
Having considered the parties’ arguments, the Court finds and concludes as follows.
II.
DEFENDANT’S MOTION TO RECOVER COSTS PURSUANT TO LOCAL
RULE 54-3.12; DEFENDANT’S APPLICATION TO TAX COSTS
A.
Background
On April 17, 2015, defendant filed an application to tax costs as the prevailing
party. Dkt. No. 246. As amended after a settlement with Farris, defendant seeks a total
of $118,982.81. Dkt. No. 272-1 at 2. On April 24, 2015, Andresen, Bekiarian, and Duffy
(collectively “plaintiffs” for purposes of Section II) filed general and specific objections
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UNITED STATES DISTRICT COURT
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JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
to defendant’s original application. Dkt. No. 260. On April 30, 2015, defendant filed a
response to plaintiffs’ objections. Dkt. No. 264.
Pursuant to this Court’s Local Rules, certain items may be taxed as costs only
“[u]pon order of the Court.” C.D. Cal. L.R. 54-3.12. On April 17, 2015, defendant filed
a motion to recover costs for trial graphics used in its opening and closing statements and
for a “hot seat” vendor that electronically displayed exhibits at trial and assisted with trial
graphic design. Dkt. No. 245 at 1. Defendant made this motion pursuant to a Local Rule
that states that the Court “may” tax costs including “charts, diagrams, and other visual
aids reasonably necessary to assist the jury or the Court in understanding the issues at
trial.” C.D. Cal. L.R. 54-3.12(a). Defendant seeks $57,036.94 in such “other costs.”
Dkt. No. 272-1 at 2. Plaintiffs filed an opposition to this motion on April 27, 2015. Dkt.
No. 261. Defendants replied on May 4, 2015. Dkt. No. 268. On May 12, 2015, plaintiff
filed a notice of new authority in support of their opposition and objections. Dkt. No.
277. Defendant responded to this notice of new authority on May 14, 2015. Dkt. No.
279. After considering the parties’ arguments, the Court finds and concludes as follows.
B.
Analysis
Plaintiffs make similar general arguments in opposition to defendant’s application
to tax costs and motion to recover costs pursuant to Local Rule 54-3.12. The Court first
addresses these arguments, then turns to plaintiffs’ specific objections to various cost
items claimed by defendant.
1.
Federal Law Governs the Award of Costs in This Case.
Defendant argues that federal procedural law entitles it to recover costs in this
action. Plaintiffs argue that defendant is not entitled to recover costs because the
governing statute is California Labor Code 218.5, which provides in part:
In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions,
the court shall award reasonable attorney's fees and costs to the
prevailing party if any party to the action requests attorney's
fees and costs upon the initiation of the action. However, if the
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UNITED STATES DISTRICT COURT
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prevailing party in the court action is not an employee,
attorney's fees and costs shall be awarded pursuant to this
section only if the court finds that the employee brought the
court action in bad faith.
Cal. Labor Code § 218.5(a) (emphasis added). On this choice of law issue, the Court
agrees with defendant.
“An award of standard costs in federal district court is normally governed by
Federal Rule of Civil Procedure 54(d), even in diversity cases.” Champion Produce, Inc.
v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003) (citing In re Merrill
Lynch Relocation Mgmt., Inc., 812 F.2d 1116, 1120 n.2 (9th Cir. 1987)); see also 10
Wright & Miller, Federal Practice & Procedure § 2669 (3d ed. Apr. 2015) (“The award of
costs is governed by federal law.”). Rule 54(d) provides in relevant part: “Unless a
federal statute, these rules, or a court order provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1).
Plaintiffs do not argue that a federal statute, Federal Rule of Civil Procedure, or
court order overrides Rule 54(d) in this case. Rather, plaintiffs contend that costs should
be governed by state law because “ ‘[f]ederal courts sitting in diversity apply state
substantive law and federal procedural law.’ ” Dkt. No. 260 at 2 (quoting Feldman v.
Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (citing Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938))). But the award of costs is a procedural matter. See, e.g., BlueEarth
Biofuels, LLC v. Hawaiian Elec. Co., Inc., Civil No. 09-00181 DAE-KSC, 2011 WL
4369303, at *2 n.1 (D. Haw. Aug. 24, 2011) (“Although federal jurisdiction in this case is
based upon diversity, because the taxation of costs pursuant to FRCP 54(d)(1) is a
procedural matter, federal law applies.”); Kolb v. Turner, No. 1:07-cv-0262 OWW DLB,
2008 WL 5478575, at *13 (E.D. Cal. Dec. 31, 2008) (“Costs, as a general matter, are
procedural in nature such that an award of costs is governed by federal, not state, law.”).
As one district court has summarized, “a federal court sitting in diversity . . . will award
costs in accordance with federal law unless a state provision allows for the awarding of
costs as part of a substantive, compensatory damages scheme.” Kelly v. Echols, No. CIV
F05118 AWI SMS, 2005 WL 2105309, at *16 (E.D. Cal. Aug. 30, 2005).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.
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Date
June 10, 2015
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
Applying this rule, one court within the Ninth Circuit has rejected plaintiffs’
precise argument. In Drumm v. Morningstar, Inc., the plaintiff argued that California
Labor Code section 218.5, rather than Rule 54(d), governed the award of costs when he
prevailed on his claim that his employer had failed to pay out vested vacation time. 695
F. Supp. 2d 1014, 1026-27 (N.D. Cal. 2010). The court disagreed, reasoning, “[s]ince the
awarding of costs here is procedural, not substantive, federal law governs,” and rejecting
the argument that section 218.5's cost provision constituted a compensatory damages
scheme. Id. at 1027. Another district court sitting in California subsequently applied
Rule 56(d)(1) to a request for costs where an employer prevailed on Labor Code claims.
See Johnson v. Hewlett-Packard Co., No. C 09-03596, 2014 WL 3703993, at *1, 6 (N.D.
Cal. July 24, 2014).
Plaintiffs dismiss Drumm and Johnson as irrelevant because they applied a version
of Labor Code section 218.5 in effect before amendments made its standard for awarding
costs asymmetrical. Previously, section 218.5 directed costs to be awarded to the
prevailing party so long as “any party to the action request[ed] attorney’s fees and costs
upon the initiation of the action.” Cal. Labor Code § 218.5 (West 2012) (effective Jan. 1,
2001 to June 30, 2012). As amended, section 218.5 allows an employer to recover costs
“only if . . . the employee brought the court action in bad faith.” But the Court fails to see
how this amendment undermines Drumm, which concluded that federal law applied
because the California statute “simply requires a court to ‘award reasonable attorney’s
fees and costs to the prevailing party,’ ” rather than making costs “an element of damages
for an unpaid wage claim under California law.” Drumm, 695 F. Supp. 2d at 1027
(emphasis in original). The section 218.5 language quoted by the Drumm court has not
changed, and the subsequent amendments in no way indicate that an award of costs is
now “an element of damages.”
A comparison with the Ninth Circuit case on which plaintiffs rely makes this point
clear. In Clausen v. M/V New Clarissa, the court determined that expert witness fees
were governed by Oregon law because the choice of law was “between a federal cost
provision, and a state damages provision that permits prevailing plaintiffs under the Oil
Spill Act to recover ‘costs of any kind’ as one element of its compensatory damages.”
339 F.3d 1049, 1064 (9th Cir. 2003) (emphasis in original) (quoting Or. Rev. Stat.
§ 468.300(6). The statute at issue in Clausen states: “ ‘Damages’ includes damages,
costs, losses, penalties or attorney fees of any kind for which liability may exist under the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Date
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JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
laws of this state resulting from, arising out of or related to the discharge or threatened
discharge of oil.” Or. Rev. Stat. § 468.300(6)). Because of this express definition of
“damages” as including “costs,” the choice of law issue in Clausen was controlled by the
well-settled principle that “ ‘[t]he measure of damages is a matter of state substantive
law.’ ” Clausen, 339 F.3d at 1065 (quoting Barbier v. Shearson Lehman Hutton Inc., 948
F.2d 117, 122 (2d Cir. 1991)). Although plaintiffs argue that Labor Code section 218.5
similarly makes costs an element of damages, the statute’s actual language (“the court
shall award reasonable attorney’s fees and costs to the prevailing party”) is a far cry from
the explicit definition of “costs” as part of “damages” in Clausen, and much closer to the
language of Rule 54(d)(1) itself (“costs . . . should be allowed to the prevailing party”).
Further, it is difficult to see how section 218.5's “costs” can be properly considered
“damages” when defendants can recover them in cases brought in bad faith. Plaintiffs
cite no federal case applying Labor Code section 218.5 to costs instead of Rule 54(d), and
the Court sees no reason to depart from the general rule, applied by the Drumm court in a
materially indistinguishable case, that federal law governs whether costs should be
awarded.
The Court is not persuaded to the contrary by plaintiffs’ citation of Williams v.
Chino Valley Independent Fire District, 61 Cal. 4th 97 (2015). In that case, the
California Supreme Court held that a different statute—California Government Code
12965(b), part of the Fair Employment and Housing Act (FEHA)—is “an express
exception to [California] Code of Civil Procedure 1032(b) and the former, rather than the
latter, therefore governs cost awards in FEHA cases.” Williams, 61 Cal. 4th at 105.1
Williams is inapposite because it did not discuss any Labor Code provision and, with
regard to the statute it did analyze, held only that the statute is an exception to California
Code of Civil Procedure 1032(b), not that it is substantive for Erie purposes or a
“compensatory damages” provision within the meaning of Clausen. Further, that the
court discussed as persuasive authority federal cases analyzing whether federal statutes
such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act
contain fee or cost-shifting mechanisms that create exceptions to the general rule in Rule
1
California Code of Civil Procedure 1032(b) provides that civil defendants are
“entitled as a matter of right” to recover their costs “[e]xcept as otherwise expressly
provided by statute.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
54(d) is of no moment because here, there is no federal statute that could be said to
conflict with Rule 54(d).
Finally, plaintiffs argue that the Court should apply state law instead of Rule 54(d)
in order to discourage forum shopping. But the Ninth Circuit has stated that although
“[t]here may be unusual cases . . . in which litigation costs are so large” that they
constitute a significant incentive to litigate in federal court, “in ordinary cases other
factors, like impartiality and speed of the court system, determine the choice of forum,
and we design the choice of law rule for the ordinary case, not a hypothetical one.”
Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1168 (9th Cir. 1995); see also 10 Wright &
Miller § 2669 (“Variations between state and federal practice in the assessment of costs
after the case has been disposed of do not appear likely to promote forum shopping or to
affect ‘the outcome of the litigation’ in any significant way and therefore employing
federal law does not violate the underlying policies of the Erie principle.”). For these
reasons, the Court concludes that Federal Rule of Civil Procedure 54(d)—not state
law—governs defendant’s application and motion for costs.
2.
Defendant Is Entitled to Recover Costs Under Federal Law.
“Rule 54(d)(1) creates a presumption in favor of awarding costs to the prevailing
party, but the district court may refuse to award costs within its discretion.” Champion
Produce, 342 F.3d at 1022. The burden falls on the losing party to demonstrate why costs
should not be awarded. Stanley v. Univ. of S. Cal., 1789 F.3d 1069, 1079 (9th Cir.
1999). A district court “must ‘specify reasons’ for its refusal to tax costs to the losing
party,” but “need not give affirmative reasons for awarding costs.” Save Our Valley v.
Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003) (emphasis in original) (quoting Assoc.
of Mexican-American Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000)). Here,
plaintiffs have not met their burden of overcoming Rule 54(d)(1)’s presumption that costs
should be awarded to the prevailing party.
3.
Defendant May Recover Costs Against Duffy.
Next, plaintiffs argue that IP may not recover any costs against Duffy because he,
not IP, is the prevailing party. The “party in whose favor judgment is rendered is
generally the prevailing party for purposes of awarding costs under Rule 54(d).” San
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.
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Date
June 10, 2015
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
Diego Police Officers Ass’n v. San Diego City Employees’ Retirement Sys., 568 F.3d
725, 741 (9th Cir. 2009) (internal quotation marks and citation omitted). It is not
“necessary for a party to prevail on all of its claims to be found the prevailing party.” Id.
The Seventh Circuit has stated that a district court “may award costs to whichever party
prevails in ‘the substantial part of the litigation.’ ” O.K. Sand & Gravel, Inc. v. Martin
Marietta Techs., Inc., 36 F.3d 565, 571 (7th Cir. 1994) (quoting Northbrook Excess &
Surplus Ins. Co. v. Procter & Gamble, 924 F.2d 633, 641 (7th Cir. 1991)). For example,
one court in this jurisdiction found the defendants to have prevailed where the plaintiffs
“sought hundreds of millions in damages but succeeded only in receiving a judgment of
about $370,000 on behalf of the class.” Tibble v. Edison Int’l, No. CV 07-5359 SVW
(AGRx), 2011 WL 3759927, at *2 (C.D. Cal. Aug. 22, 2011). Additionally, trial courts
have discretion to allocate costs among prevailing parties where plaintiffs prevail on a
small subset of their claims. See, e.g., EEOC v. Colgate-Palmolive Co., 617 F. Supp.
843, 844 (S.D.N.Y. 1985) (awarding a defendant most of its costs and the plaintiff a
smaller fraction of its costs, where the plaintiff prevailed on only two of ten claims).
At trial, Duffy sought damages of $305,744.38; approximately 97 percent of that
figure was based on his unsuccessful vacation and waiting time claims. See Dkt. No.
264-2 Ex. A. As noted, the jury found in favor of Duffy only on his claim for unpaid
commissions, awarding him $8,148.48. Although Duffy prevailed on a small portion of
his claims, the bulk of the effort and costs in this litigation were clearly directed at the
unpaid vacation claims. Consequently, the Court determines that Duffy should be
ordered to pay defendant’s costs, and that Duffy’s partial success is adequately reflected
by awarding him his own reasonable requested costs, as discussed infra. See ColgatePalmolive, 617 F. Supp. at 844 (awarding each party a portion of its costs where the
defendant prevailed on most but not all claims).2
2
Plaintiffs’ arguments that defendant’s costs should be reduced by thirty-five
percent or more because Duffy recovered approximately $8,000 in unpaid commissions
and the Phase II claims involving Bekiarian were dismissed in light of the Phase I verdict
are unsupported by authority.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.
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Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
4.
Date
June 10, 2015
Defendants Need Not Apportion Costs Among the Plaintiffs.
Plaintiffs next argue that each plaintiff should only be held liable for a proportional
amount of any costs awarded to IP, rather than being held jointly and severally liable.
When one party prevails against multiple opponents, “the presumptive rule is joint and
several liability unless it is clear that one or more of the losing parties is responsible for a
disproportionate share of the costs.” Anderson v. Griffin, 397 F.3d 515, 522–23 (7th Cir.
2005)); see Concord Boat Corp. v. Brunswick Corp., 309 F.3d 494, 497 (8th Cir. 2002)
(“Joint and several liability for costs is the general rule unless equity otherwise
dictates.”); In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 469 (3d Cir. 2000) (holding
that the “default rule is that costs may be imposed jointly and severally,” and that the
losing parties have the burden of introducing evidence persuading the court otherwise).
Plaintiffs shared a joint defense team and many trial exhibits and witnesses, and offer no
evidence or authority that would suggest equity requires departing from the presumption
of joint and several liability. Cf. Walker v. U.S. Dep’t of Housing & Urban Dev., 99 F.3d
761, 773 (5th Cir. 1996) (affirming joint and several liability for attorneys’ fees where
each party played a substantial role in the litigation, had a joint legal defense, and shared
experts). Accordingly, the Court rejects plaintiffs’ contention that each plaintiff may
only be held individually liable for a fraction of defendant’s costs.
5.
Plaintiffs’ Specific Objections
The Court now turns to the specific cost items to which plaintiffs object. See
Wright & Miller § 2668 (“The court’s discretion embraces both allowing and disallowing
all costs or only particular items.”).
a.
Reporter’s Transcripts
Defendant requests $20,580.21 for reporter’s transcripts from trial. Dkt. No. 272-1
at 2. 28 U.S.C. § 1920 provides that a court “may tax . . . [f]ees for printed or
electronically recorded transcripts necessarily obtained for use in the case.” The Court’s
Local Rules provide that items taxable as costs include “[t]he cost of the original and one
copy of all or any part of a trial transcript, a daily transcript, or a transcript of matters
occurring before or after trial, if requested by the Court or prepared pursuant to
stipulation.” C.D. Cal. L.R. 54-3.4. “Generally, daily trial transcript costs should not be
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awarded absent court approval prior to the trial. . . . ‘However, a district court may
overlook the lack of prior approval if the case is complex and the transcripts proved
invaluable to both the counsel and the court.’ ” Dowd v. City of Los Angeles, 28 F.
Supp. 2d 1019, 1049 (C.D. Cal. 2014) (quoting Manildra Milling Corp. v. Ogilvie Mills,
Inc., 76 F.3d 1178, 1184 (Fed. Cir. 1996)). For example, the Dowd court awarded costs
for daily transcripts because the court had “required the parties . . . to cite to specific
pieces of testimony when making evidentiary objections and arguing the proposed jury
instructions,” making the transcripts “invaluable” to the parties and the court in resolving
the “complex issues in [that] case.” Id.
Here, there was no Court order requesting or approving daily transcripts, and no
stipulation by the parties making such costs taxable. Defendant’s attempt to compare this
case to Dowd because its attorneys used the transcripts to prepare for questioning
witnesses and delivering closing arguments is unavailing because an attorney’s
convenience is not the same as a court’s requirement. Because daily trial transcript costs
are generally not to be taxed absent prior approval and defendant has not overcome this
presumption, the Court disallows defendant’s requested daily transcript costs entirely.
b.
Deposition Costs
Defendant seeks to recover $30,282.07 in deposition expenses. Dkt. No. 272-1 at
2. “Deposition costs are taxable if they are reasonably necessary for trial.” Evanow v.
M/V Neptune, 163 F.3d 1108, 118 (9th Cir. 1998). “A deposition need not be absolutely
indispensable to justify an award of costs; rather, it must only be reasonably necessary at
the time it was taken, without regard to later developments that may eventually render the
deposition unneeded at the time of trial or summary deposition.” Frederick v. City of
Portland, 162 F.R.D. 139, 143 (D. Or. 1995). For example, one circuit has affirmed the
award of costs for deponents not called as witnesses at trial based on the affidavit of
counsel that the depositions “were believed to be necessary for trial at the time they were
taken.” Manildra Milling Corp., 76 F.3d at 1184–85. “Indeed, in those instances when
courts have prohibited the recovery of deposition costs, the prohibition has customarily
been predicated on a finding that the deposition was purely investigative in nature or
solely for the convenience of counsel.” Frederick, 162 F.R.D. at 143. The Local Rules
provide that taxable costs in connection with taking oral depositions include:
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(a)
(b)
(c)
(d)
(e)
Date
June 10, 2015
The cost of the original and one copy of the transcription
of the oral portion of all depositions used for any purpose
in connection with the case, including non-expedited
transcripts, the reporter’s appearance fee, fees for
binding, bates stamping, non-expedited shipping and
handling, processing fee, ASCII disks, production and
code compliance charge, electronic transmission charge,
miniscripts and witness handling charges, but not
including the cost of videotaping or recording
depositions unless otherwise ordered by the Court;
The reasonable fees of the deposition reporter . . . the
notary, and any other persons required to report or
transcribe the deposition, but not including the costs of
video and audio technicians unless otherwise ordered by
the Court;
Reasonable witness fees paid to a deponent . . . . ;
Reasonable fees paid to an interpreter when necessary to
the taking of the deposition; and
The cost of copying or reproducing exhibits used at the
deposition and made a part of the deposition transcript.
C.D. Cal. L.R. 54-3.5.
Plaintiffs first argue that fifteen depositions taken by IP were unnecessary because
those witnesses were not called at trial. But transcripts indicate that three of these
depositions—those of Mayra Vargas, Elizabeth Johnson, and Lloyd Aubrey—were
actually taken “on behalf of the Plaintiffs.” Dkt. No. 264-2 Exs. F–H. An additional
eight of the deponents were on plaintiffs’ trial witness lists, undermining plaintiffs’
contention that the depositions were not reasonably necessary when they were taken. See
Dkt. No. 241; Farris Dkt. No. 127. The remaining witnesses to which plaintiffs object are
plaintiffs’ spouses. The Court finds reasonable defendant’s explanation that the spouses’
depositions were relevant at the time they were taken because each had knowledge about
the amount of vacations plaintiffs took, a critical damages issue; indeed, Duffy and
Anderson testified that their wives helped them prepare charts of vacation taken.
Therefore, the Court rejects plaintiffs’ argument that all costs for these deponents should
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be disallowed. Additionally, the Court rejects for the reasons stated above plaintiffs’
arguments that costs for depositions touching on counterclaims against Bekiarian or
Duffy’s commissions claim, among others, should be disallowed.3
Plaintiffs next argue that IP improperly claims deposition costs for rough draft
transcripts, expedited transcripts, and compact discs. As stated, the Local Rules allow
“non-expedited transcripts” to be taxed, indicating that expedited transcripts should not
be. Therefore, the Court disallows costs for expedited transcripts in the amount of
$1,054.88. See Dkt. No. 272-1 Ex. C. Additionally, the Court strikes $4,051 of costs for
rough draft and daily transcripts in addition to the one original and one copy allowed by
the Local Rules. See Petroliam Nasional Berhad v. GoDaddy.com, Inc., No. C 09-5939
PJH, 2012 WL 1610979, at *2 (N.D. Cal. May 8, 2012) (disallowing cost of a “ ‘rough
draft’ copy, because it appears to be a copy in addition to the permitted original and one
copy”). Summing these figures, the Court subtracts $5,105.88 from the deposition costs
IP seeks, leaving $25,176.19 in taxable deposition costs.4
c.
Witness Fees
Defendant requests $1,029 in witness fees. Dkt. No. 272-1 at 2. The Local Rules
authorize the taxing of “[s]tatutory fees paid to witnesses, including . . . [p]er diem,
mileage, subsistence, and attendance fees as provided in 28 U.S.C. § 1821 paid to
witnesses subpoenaed or actually attending the proceeding.” C.D. Cal. L.R. 54-3.6. “The
awarding of witness fees and expenses as taxable costs is a matter addressed to the
discretion of the district judge,” who must consider “whether the testimony of the witness
was relevant to an issue in the case and reasonably necessary to its resolution.” 10
Wright & Miller § 2678. “Ordinarily, no fee may be taxed for someone who comes to the
3
This argument is especially audacious in light of the fact, discussed below, that
Duffy has applied to tax costs as the prevailing party on his unpaid commissions claim
for depositions at which that claim was not even discussed.
4
As to the compact discs to which plaintiffs object, IP has clarified that those discs
are ASCII discs. See Dkt. No. 285-1 at 2. As stated, such costs are expressly taxable
under the Local Rules.
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courthouse but does not testify at the trial, the presumption being that the person was not
a necessary witness. But this is no more than a presumption and can be overcome if it
appears that a court order or some other extrinsic circumstance rendered that testimony
unnecessary.” Id.
Plaintiffs argue that fees should be disallowed for witnesses IP did not call at trial,
consisting of plaintiffs’ and Farris’s spouses and coworkers. The Court agrees, as
defendant does not point to any special circumstances or court order that overcomes the
presumption that fees for witnesses not called at trial are not taxable. Accordingly, the
Court subtracts $473 from IP’s requested costs, leaving $556 of taxable witness fees.
d.
Document Reproduction Expenses
In its amended application, defendant requests $9,976.59 for “exemplification and
reproduction of documents.” Dkt. No. 272-1 at 2. The Local Rules authorize the taxing
of document preparation costs including:
(a)
(b)
The cost of copies (including Mandatory Chambers
Copies) of documents necessarily filed and served;
The cost of documents or other materials admitted into
evidence when the original is not available or the copy is
substituted for the original at the request of an opposing
party; [and]
....
(f)
Fees for certification or exemplification of any document
or record necessarily obtained for use in this case.
C.D. Cal. L.R. 54-3.10.
Upon a review of the submitted invoices, Dkt. No. 256-5, it appears that claimed
costs for binders containing the copied documents, binder preparation and assembly,
computer labor, overtime labor, and courier services should not be taxed. These costs are
set forth in the invoices IP submits as $2,048 for binders, $805 for binder preparation,
$1,275 for computer labor, $3,112.50 for overtime labor, and $150 for courier services.
Dkt. No. 271-1 Ex. E. IP reduced its overall document reproduction costs by fifty
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percent to account for the fact that the Court only requires two copies of trial exhibits
(rather than the four IP ordered), and then by an additional twenty-five percent to reflect
the settlement with Farris. Accordingly, for those categories of costs that the Court will
not tax, the Court has halved the invoice figures and multiplied that result by threequarters, yielding $768 (binders), $301.88 (binder preparation), $478.13 (computer
labor), $1,167.19 (overtime labor), and $56.25 (courier services) of costs that will not be
taxed. Summing these figures, the Court deducts $2,771.45 from IP’s requested
document reproduction costs, leaving $7,205.14 of document certification,
exemplification, and reproduction costs to be taxed.
e.
Visual Aids Used at Trial
Defendant seeks reimbursement for visual aids used at trial, strategy and consulting
services relating to those visual aids, and a “hot seat vendor” who displayed and
highlighted visual exhibits at trial. The Court “may” tax costs including “charts,
diagrams, and other visual aids reasonably necessary to assist the jury or the Court in
understanding the issues at trial.” C.D. Cal. L.R. 54-3.12(a). The Court has “discretion”
to award costs for such visual aids. Dowd, 28 F. Supp. 3d at 1049 (citing Little Oil Co.,
Inc. v. Atl. Richfield Co., 852 F.2d 441, 448 (9th Cir. 1988)).
The Court declines to tax costs for the services provided by “Trial Edge,” which
appear to have consisted of technical assistance at trial. See Dowd, 28 F. Supp. 3d at
1050 (denying costs for “trial technician services,” finding them not to be taxable under
Local Rule 54-3 or 28 U.S.C. § 1920); Am. Color Graphics, Inc. v. Travelers Property
Cas. Ins. Co., No. C 04-3518 SBA, 2007 WL 832935, at *3 (N.D. Cal. Mar. 19, 2007)
(disallowing costs for trial video technician). As to the services provided by Huck, LLC,
the Court will tax costs only for those services related to direct production of visuals, not
billed services for “expert persuasive strategists.” See Shum v. Intel Corp., 682 F. Supp.
2d 992, 1000 (N.D. Cal. 2009) (disallowing charges for “strategy” and “case
management,” and rejecting argument that losing party “should be required to pay for the
time defense counsel spent in ‘close collaboration’ with their consultants, especially as it
related to strategic planning for the trial as opposed to costs for production of the
demonstratives”). This leaves $15,725 in taxable costs for visual aids. Additionally,
defendant has reduced its request for visual aid costs by 25% in light of its settlement
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with Farris. Applying this same reduction to the remaining visual aid costs the Court will
permit, the Court concludes that $11,793.75 of “other costs” should be taxed.
C.
Conclusion
In accordance with the foregoing, the Court GRANTS IN PART and DENIES IN
PART defendant’s motion for other costs, and ALLOWS IN PART and DISALLOWS
IN PART plaintiffs’ objections to defendant’s application to tax costs. Plaintiffs are
ordered to pay IP a total of $44,819.08 in costs.
III.
PLAINTIFF DUFFY’S MOTION AND APPLICATION FOR ATTORNEYS’
FEES AND COSTS
As stated above, plaintiff Duffy was unsuccessful in his claims for unpaid vacation
and waiting time penalties, but prevailed on his claim for unpaid commissions, receiving
a jury verdict in the amount of $8,148.48. On April 17, 2015, Duffy filed a motion for
attorneys’ fees and costs based on his commissions claim. Dkt. No. 248. Defendant
opposed the motion on April 27, 2015, and plaintiff filed a reply on May 4, 2015. Dkt.
Nos. 263, 269. Duffy filed an application to tax costs on April 17, 2015, and an amended
version on April 24, 2015. Dkt. Nos. 249, 259. Defendant filed objections to the
application on April 24, 2015, and Duffy responded to those objections on April 27,
2015. Dkt. Nos. 258, 262.
A.
Attorneys’ Fees
Duffy asserts—and defendant does not contest—that Duffy is entitled to
“reasonable attorney’s fees” under California Labor Code section 218.5. See Cal. Labor
Code § 218.5 (“In any action brought for the nonpayment of wages . . . the court shall
award reasonable attorney’s fees and costs to the prevailing party if any party to the
action requests attorney’s fees and costs upon the initiation of the action.”); Drumm v.
Morningstar, Inc., 695 F. Supp. 2d 1014, 1018 (N.D. Cal. 2010) (“The awarding of
attorney’s fees is ‘mandatory’ in unpaid wage claims.” (citing Earley v. Superior Court,
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79 Cal. App. 4th 1420, 1427 (2000))).5 Duffy requests approximately $400,000 in fees,
while defendant argues that this figure is grossly inflated and should be denied entirely or
drastically reduced.
“California law commits the determination of reasonable attorneys’ fees to the
discretion of the trial courts.” Beaty v. BET Holdings, Inc., 222 F.3d 607, 609 (9th Cir.
2000). California courts and the Ninth Circuit apply the “lodestar” method, designed to
determine the “basic fee for comparable legal services in the community.” Ketchum v.
Moss, 24 Cal. 4th 1122, 1132 (2001); see Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 978 (9th Cir. 2008). The “ ‘lodestar’ is calculated by multiplying the number of
hours the prevailing party reasonably expended on the litigation by a reasonable hourly
rate.” Camacho, 523 F.3d at 978 (internal quotation marks and citation omitted). Once
the lodestar has been calculated, a court may “adjust [it] upward or downward using a
‘multiplier’ based on factors not subsumed in the initial calculation of the lodestar.” Van
Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
1.
Hours Reasonably Spent on Litigation
The party seeking fees must submit evidence supporting the number of hours
worked, and the district court should exclude “hours that are not reasonably expended
because they are ‘excessive, redundant, or otherwise unnecessary.’ ” Van Gerwen, 214
F.3d at 1045 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “[T]ime spent in
establishing the entitlement to and amount of the fee” is compensable as reasonably
necessary attorney time. In re Nucorp Energy, Inc., 764 F.2d 655, 659–60 (9th Cir.
1985); accord Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982).
5
Courts sitting in diversity often apply federal law to applications for costs while
applying state law to motions for attorneys’ fees. See, e.g., United Cal. Bank v. THC Fin.
Corp., 557 F.2d 1351, 1361 (9th Cir. 1977); Johnson v. Hewlett-Packard Co., No. C 0903596, 2014 WL 3703993, at *1, 6 (N.D. Cal. July 24, 2014) (applying Rule 54(d) to
request for costs where employer prevailed on Labor Code claims, while applying Labor
Code section 218.5 to employer’s request for attorneys’ fees on those claims).
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Even limited to Duffy’s commissions claim, this litigation was hard-fought,
including significant discovery, a motion to dismiss, two amended complaints, a motion
for summary judgment, motions in limine, and a contentious trial. A relatively high
number of hours worked in relation to the monetary result obtained is therefore not
surprising and, especially given the public policies advanced by Labor Code litigation,
not improper. Cf. Beaty, 222 F.3d at 612 (“[A] trial court does not under California law
abuse its discretion simply by awarding fees in an amount higher, even very much higher,
than the damages awarded, where successful litigation causes ‘conduct which the [Fair
Employment and Housing Act] was enacted to deter [to be] exposed and corrected.’ ”
(citation omitted)). Still, where a “plaintiff has achieved only partial or limited success,
the product of hours reasonably expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount.” Hensley, 461 U.S. at 436. In cases such as
this one, where successful and unsuccessful claims are factually separable, the “fee
applicant bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates. The applicant should exercise ‘billing
judgment’ with respect to hours worked . . . and should maintain billing time records in a
manner that will enable a reviewing court to identify distinct claims.” Id. “The trial
court may ‘reduce the award or deny one altogether’ if the fee request ‘appears
unreasonably inflated.’ ” Drumm, 695 F. Supp. 2d at 1023 (quoting Serrano v. Unruh, 32
Cal. 3d 621, 635 (1982)).
Duffy asserts that he is only claiming fees for hours spent on his successful
commissions claim, segregating such hours from those pertaining to unsuccessful claims.
For the two attorneys that worked on Duffy’s commission claim, Doug Silverstein and
Lauren Morrison, Duffy submits time sheets including a separate time entry for “time
spent on commissions” if the overall billing activity for that row was directed at Duffy’s
commission claim and others.6 Nevertheless, having reviewed the submitted time sheets,
6
The Court notes that, despite seeking leave of Court to file limited supplemental
briefing explaining in greater detail the submitted billing entries, Duffy submitted entryby-entry explanations only for a subset of Silverstein’s hours (many of which were
already reasonably allocated, and which the Court’s tentative order therefore did not
discount), did not address any of Morrison’s billing entries (many of which have no
analogue in Silverstein’s entries), and spent most of his supplemental brief arguing for a
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and in light of the Court’s observation of time spent on the various issues throughout this
litigation, it is clear that some hours claimed cannot reasonably have been spent only on
the commission claims.
For example, Silverstein includes as time spent on the commissions claim only
4.75 hours for “Trial—Closing Arguments and Jury Instructions” on December 12, 2014
(the last day of trial); 5.8 hours for “Closing Argument/Power Point” preparation on
December 9, 2014; and 3.5 hours for “Trial—Opening Statements” on December 2,
2014.7 Given that the approximately $8,000 in unpaid commissions Duffy sought
represented less than 1% of the damages sought by the plaintiffs, and that the vast
majority of trial time was spent on other issues, this is either implausible or unreasonable.
The Court therefore awards only ten percent of the billed time for these entries,
subtracting 12.65 hours from Silverstein’s claimed time. Silverstein also claims 2.5
hours for “Trial—Examination of Robert Crandall” (IP’s damages expert), and an
additional hour preparing for that cross-examination. But out of approximately 134
transcript pages covering Crandall’s examination at trial, only two pages relate to Duffy’s
commissions claim. Finding the billed time to be unreasonable in light of this extremely
limited questioning related to the claim on which Duffy prevailed, the Court subtracts 2.5
hours total from these two entries. For similar reasons, the Court only awards six
minutes of the requested 1.6 hours for trial examination of Miles Locker, for whom
questions related to the commissions claim span less than half a page of approximately
forty-five transcript pages covering Locker’s trial testimony; this reduces Silverstein’s
claimed time by an additional 1.5 hours. Next, the Court does not find reasonably
necessary to the prosecution of Duffy’s commission claim the 3.5 hours Silverstein bills
for calls with a jury consultant on November 28 and 30, 2014, and strikes those entries
entirely. Finally, the Court will not order IP to pay 3.8 hours billed in connection with
IP’s motion to dismiss the SAC, as that motion did not seek to dismiss (or even mention)
Duffy’s commissions claim. Summing these totals, the Court deducts 23.95 hours from
Silverstein’s claimed hours, leaving 75.2 hours to be billed at his reasonable rate.
multiplier, an issue on which the Court did not authorize additional briefing.
7
All time entries in this section appear at Dkt. No. 257-2, Ex. D.
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For the reasons discussed above, the Court awards only ten percent of the
unallocated hours Morrison billed for “Closing Arguments and Jury Instructions” (4.75
hours on December 12, 2014); “Closing Argument/PowerPoint” (5.8 hours on December
9, 2014); and “Trial—Opening Statements” (3.5 hours on December 2, 2014). Deducting
ninety percent of the time billed for these entries reduces Morrison’s claimed hours by
12.65 hours. Also for reasons already stated, the Court deducts 1.5 hours of the two
hours Morrison billed for cross-examination of Crandall on December 9, 2014, and all of
her 3.5 hours billed for calls with a jury consultant. Additionally, the Court finds that IP
should only be ordered to pay ten percent of the four hours billed for traveling to and
taking the deposition of Ottie Dixon (at which defendant avers—and Duffy does not
contest—that Morrison asked only one question related to Duffy’s commissions claim),
and subtracts 3.6 hours for that reason. On the same rationale, the Court deducts 4.5
hours out of five hours claimed for preparing for and taking the deposition of Derrick
Bates, for whom questions about Duffy’s commissions claim ran three pages out of a
289-page deposition transcript. And because Duffy’s commissions claim was such a
small part of this case, the Court only awards ten percent of the 11.2 hours Morrison
claims for preparing Duffy for his deposition and then traveling to and defending that
deposition, reducing her billed time by an additional 10.1 hours. Additionally, the Court
disallows entirely a total of 30.8 unallocated hours billed in connection with the
depositions of the following witnesses whom Duffy appears to admit were not asked
about his commissions claim: Robert Jones, Cindy Duffy, James Campbell, Don Skrede,
Mike Cweika, Don Fry, Eric Radtke, and Don Zenser. Finally, because the motion was
not directed at Duffy’s commissions claim, the Court subtracts 3.4 hours billed with
regard to IP’s motion to dismiss the SAC. All told, the Court deducts 70.1 hours from
Morrison’s requested hours, leaving 176.8 hours to be billed at her reasonable rate.8
With regard to paralegal Michael Bew, defendant argues that many of the tasks he
performed consists of “administrative and clerical tasks, which should never be charged
8
Contrary to its tentative order, however, the Court will award in full Silverstein
and Morrison’s fees for billing entries directed toward the settlement and mediation
conferences, as well as similar billing entries that—while not allocated between total and
commissions-directed time on Duffy’s submitted time sheets—would have been
reasonably necessary if the commissions claim were brought as a standalone claim.
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to a client—and thereby, should not be billed to an opposing counsel in a fee request.”
Dkt. No. 263 at 6–7. But the cases defendant cites in support of this argument disallowed
billed fees for clerical tasks performed by attorneys at attorneys’ rates, not tasks
performed by paralegals at substantially lower rates. See, e.g., Yenidunya Invs. Ltd. v.
Magnum Seeds, Inc., No. CV 2:11-1787 WBS, 2012 WL 538263, at *10 (E.D. Cal. Feb.
17, 2012); Sunstone Behavioral Health, Inc. v. Alameda Cnty. Med. Ctr., 646 F. Supp. 2d
1206, 1215 (E.D. Cal. 2009). The Court therefore declines to strike the bulk of Bew’s
requested hours, as IP suggests. The Court will, however, disallow 3.2 hours billed in
connection with the motion to dismiss the SAC, which as stated above, did not implicate
Duffy’s commissions claims. As defendant makes no other specific objections to Bew’s
hours, the Court will allow reimbursement for the other 152.6 hours Duffy’s counsel
declares that Bew spent on Duffy’s commissions claim.
2.
Reasonable Hourly Rate and Calculation of the Lodestar
The party seeking fees must demonstrate that the rates requested are “in line with
the prevailing market rate of the relevant community.” Carson v. Billings Police Dep’t,
470 F.3d 889, 891 (9th Cir. 2006) (internal quotation marks and citation omitted). The
relevant rate is that “for similar work performed by attorneys of comparable skill,
experience, and reputation,” Schwarz v. Sec. of Health & Human Servs., 73 F.3d 895,
908 (9th Cir. 1995) (citation omitted), and “the relevant community is the forum in which
the district court sits,” Camacho, 523 F.3d at 979 (citing Barjon v. Dalton, 132 F.3d 496,
500 (9th Cir. 1997)). “Affidavits of the plaintiffs’ attorney and other attorneys regarding
prevailing fees in the community, and rate determinations in other cases, particularly
those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing
market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th
Cir. 1990).
Duffy submits that a reasonable rate for work performed by partner Douglas N.
Silverstein is $750 per hour. Silverstein has practiced labor and employment law for
twenty years, and litigated several trials in the past four years. See Dkt. No. 257-1 ¶¶
3–14. He represents that $750 is the hourly rate he actually charges, and has been
approved at a rate of $700 per hour multiple times by state and federal judges in the past
few years. Id. ¶¶ 16–17. Duffy submits declarations by Los Angeles area employment
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lawyers Lee Feldman, Carney Shegerian, and Gary Dordick, all of whom attest to
Silverstein’s experience and competence, and the reasonableness of his requested rate.
See Dkt. Nos. 248-5, 248-6, 248-7. Defendant does not contest Silverstein’s hourly rate,
and the Court finds $750 to be an appropriate hourly rate for work performed by him.
Duffy submits that a reasonable rate for work performed by associate and second
chair trial attorney Lauren J. Morrison is $450 per hour. Morrison has been practicing
employment law exclusively for over five years, has taken over one hundred depositions,
and has defended a larger number of depositions. Dkt. No. 248-3 ¶ 2. She represents that
her firm bills her time at an hourly rate of $450 per hour. Id. ¶ 4. Morrison was
approved at a rate of $400 per hour in November 2012 by a California Superior Court.
Id. Silverstein declares that $450 per hour is a reasonable market rate for an attorney of
Morrison’s experience and skill acting as second chair in such a case. Dkt. No. 257-1 ¶
19. Feldman, Shegerian, and Dordick all opine that this rate is within the range charged
by comparably qualified attorneys for similar litigation within the Los Angeles area. See
Dkt. No. 248-5 ¶ 10; Dkt. No. 248-6 ¶ 7; Dkt. No. 248-7 ¶ 10. The Court finds the
submitted declarations, and its own experience with the work done in this case, sufficient
to establish $450 as a reasonable hourly rate for Morrison’s work.
Duffy submits that paralegal Michael Bew’s work on Duffy’s commissions claim
should be billed at $150 per hour. Morrison declares that Bew has been a paralegal at her
firm for three years, and worked as a legal assistant for over twenty years before joining
the firm. Dkt. No. 248-3 ¶ 7. The Court finds $150 per hour to be reasonable for work
performed by Bew.
Applying these hourly rates, the lodestar for work performed by Silverstein is
$56,400 (75.2 hours x $750). The lodestar for work performed by Morrison is $79,560
(176.8 hours x $450). The lodestar for work performed by Bew is $22,890 (152.6 hours
x $150). Summing these figures yields a total lodestar of $158,850.
3.
Adjustment of the Lodestar Rate
“The lodestar amount is presumptively the reasonable fee amount, and thus a
multiplier may be used to adjust the lodestar amount upward or downward only in ‘rare’
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or ‘exceptional’ cases, supported by both specific evidence on the record and detailed
findings . . . that the lodestar amount is unreasonably low or unreasonably high.” Van
Gerwen, 214 F.3d at 1045 (internal quotation marks and citations omitted). Under
California law, the lodestar may be adjusted based on factors including “(1) the results
obtained by plaintiff's counsel; (2) the skill and quality of representation; (3) the novelty
and difficulty of the questions involved; (4) the extent to which the litigation precluded
other employment by the attorneys; and (5) the contingent nature of the case.” Jadwin v.
County of Kern, 767 F. Supp. 2d 1069, 1134–35 (E.D. Cal. 2011) (citing Serrano v.
Priest, 20 Cal. 3d 25, 49 (1977), and Lealao v. Beneficial Cal., Inc., 82 Cal. App. 4th 19,
45 (2000)). “Courts must not,” however, “consider any multiplier factor to the extent it is
already encompassed within the lodestar calculation.” Parkinson v. Hyundai Motor Am.,
796 F. Supp. 2d 1160, 1173 (C.D. Cal. 2010). “[T]he trial court is not required to include
a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or
other factors, although it retains discretion to do so in the appropriate case; moreover, the
party seeking a fee enhancement bears the burden of proof.” Ketchum, 24 Cal. 4th at
1138 (emphasis in original); accord Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553
(2010).
Duffy requests that the Court apply a 2.0x multiplier to the lodestar based on the
contingent nature of the representation and the public policy advanced by the litigation,
while IP requests a sharp negative multiplier. Exercising its discretion, the Court does
not see any reason to depart from the strong presumption that the lodestar provides the
appropriate fee amount. The Court does not find that the results obtained at trial,9 or the
legal skill required in presenting Duffy’s commissions claim, were “exceptional.”10 Nor
9
Compare Leuzinger v. County of Lake, No. C 06-00398 SBA , 2009 WL 839056,
at *10–11 (N.D. Cal. Mar. 30, 2009) (finding a multiplier of 2.0x justified in part because
the prevailing plaintiff offered attorney affidavits stating that a $1.67 million verdict “was
an exceptional result”)
10
See Ketchum, 24 Cal. 4th at 1139 (“[A] trial court should award a multiplier for
exceptional representation only when the quality of representation far exceeds the quality
of representation that would have been provided by an attorney of comparable skill and
experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 22 of 25
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
‘O’
Case No.
2:13-cv-02079-CAS(AJWx)
Date
June 10, 2015
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
were the commissions claims “novel or complex.” Aguilar v. Zep Inc., No. 13-CV00563-WHO, 2014 WL 4063144, at *8 (N.D. Cal. Aug. 15, 2014) (denying a requested
multiplier where plaintiffs’ counsel litigated Labor Code claims on contingency basis);
see also Jadwin, 767 F. Supp. 2d at 1137 (finding a multiplier unjustified in a
contingency case under the FEHA because the “litigation was not exceedingly novel and
counsel did not demonstrate ‘exceptional’ skill”); Schultz v. Ichimoto, 2010 WL
3504781, at *11 (E.D. Cal. Sept. 7, 2010) (noting that a multiplier “is completely within
the Court’s discretion” under California and federal law, and declining to apply one
where the litigation was not unusually complex). And although the Court appreciates the
importance of the Labor Code policies advanced by plaintiff’s counsel on a contingency
fee basis, a contingent arrangement does not merit a multiplier in every instance,
especially where—as here—the statute provides for mandatory attorneys’ fees to a
prevailing plaintiff.11 Additionally, the Court notes that—unlike in cases where a
multiplier is applied in contingency fee litigation that spans several years at the trial court
level—this case spanned less than two years from filing to trial. Accordingly, a
multiplier is not needed to account for the risk in taking Duffy’s case, or to encourage
attorneys to take similar cases advancing Labor Code’s public policies.
Nor will the Court apply a downward multiplier to reflect Duffy’s limited success,
as defendant suggests. It is true that “[u]nder both California and federal law, a fee award
must be adjusted to reflect limited success.” Muniz v. United Parcel Serv., Inc., 738 F.3d
214, 224 (9th Cir. 2013). But Duffy’s limited success has already been accounted for by
limiting the number of hours to those reasonably necessary to advance his successful
award will result in unfair double counting and be unreasonable.”).
11
One California court has noted that multiplier requests are less compelling in
contingent fee cases where a statute provides for a mandatory award of attorneys’ fees,
“unlike in the Serrano cases”—on which Duffy relies—“where it was uncertain that the
attorneys would be entitled to an award of fees even if they prevailed.” Weeks v. Baker
& McKenzie, 63 Cal. App. 4th 1128, 1175 (1998). The Weeks court reasoned that the
“contingent nature of the litigation” in cases such as this one is “the risk that [plaintiff]
would not prevail,” which is “inherent in any contingency fee case and is managed by the
decision of the attorney to take the case and the steps taken in pursuing it.” Id.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 23 of 25
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
‘O’
Case No.
2:13-cv-02079-CAS(AJWx)
Date
June 10, 2015
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
commissions claim only. “Since consideration of limited success is presumably
‘subsumed within the initial calculation of hours reasonably expended at a reasonable
hourly rate,’ district courts should not ordinarily make a separate adjustment for limited
success.” Corder v. Gates, 947 F.2d 374, 378 (9th Cir. 1991) (quoting Cabrales v.
County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988)). Although California law
gives the Court discretion to further reduce the lodestar amount to account for limited
success, see Beaty, 222 F.3d at 610, the Court declines to do so—especially because,
although Duffy was not successful overall, he recovered all of the unpaid commissions he
sought in the SAC. Under the totality of the circumstances, the Court concludes that
neither an upward nor downward departure from the presumptively reasonable lodestar is
appropriate.12
B.
Costs
The standards for awarding costs under Federal Rule of Civil Procedure 54(d)(1)
are set forth in Section II, above. Defendant does not contest that Duffy is entitled to
recover some costs for his commissions claim. In his initial application, Duffy requested
$17,341.44 in costs, including $7,763.33 in deposition costs. Dkt. No. 249. Defendant
objected to many of these costs, arguing that Duffy’s cost recovery should be limited to
$9,817.26. Dkt. No. 258. On the same day that defendant filed its objections, Duffy filed
a notice of errata regarding the bill of costs. Dkt. No. 259-1. Three days later, Duffy
filed a response to defendant’s objections, reducing his requests for certain fees and
altering the allocation of others. Dkt. No. 262. As revised, Duffy requests the following
costs:
Filing Fees:
Fees for Service of Process:
Reporter’s Transcripts:
Depositions:
Certification, Exemplification
$435.00
$202.00
$191.10
$9,494.85
12
Because the Court does not find a multiplier to be justified, this order does not
separately analyze time spent on the commissions claim itself (for which Duffy requests a
multiplier) and for preparing the fees motion (for which Duffy does not).
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 24 of 25
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
‘O’
Case No.
2:13-cv-02079-CAS(AJWx)
Date
Title
JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
and Reproduction of Documents:
Masters, Commissions and Receivers:
Total:
June 10, 2015
$1,634.10
$2,900.00
$14,858.05
Id. This revised application obviates IP’s objections to the significantly greater reporter’s
transcripts costs initially requested, and the revised certification, exemplification, and
reproduction of documents costs are actually lower than the figure IP argued should be
allowed. However, Duffy provides no explanation for requesting almost $2,000 more in
deposition costs than he sought in either his initial or amended application to tax costs.
Therefore, the Court will only allow deposition costs in the originally requested amount
of $7,763.33. Finding the other requested costs to be reasonable, the Court orders IP to
pay Duffy $13,125.53 in costs.
C.
Conclusion
In accordance with the foregoing the Court GRANTS IN PART and DENIES IN
PART Duffy’s motion for attorneys’ fees and costs, awarding him $159,330 in attorneys’
fees and $13,125.53 in costs.13
IT IS SO ORDERED.
00
Initials of Preparer
:
00
CMJ
13
The Court notes that in its tentative order, the Court made an arithmetic error that
resulted in counting twice the $10,665 Duffy claims for time spent preparing the fees
motion. Hence, although the Court has allowed an additional $26,752.50 in net
attorneys’ fees compared to those reflected in the tentative order, the actual net increase
between the tentative order and this one is $16,087.50.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 25 of 25
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