John Busker v. WABTEC Corporation et al

Filing 105


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O 1 2 3 4 5 6 United States District Court Central District of California 7 8 9 10 JOHN BUSKER, 11 12 13 14 15 Case No. 2:15-cv-08194-ODW-AFM Plaintiff, v. ORDER AWARDING ATTORNEYS’ WABTEC CORPORATION; MICHAEL FEES MARTIN; and DOES 1 through 100, Defendants. 16 I. 17 INTRODUCTION 18 After prevailing on their summary judgment motion, Defendants moved for an 19 award of attorneys’ fees. (ECF No. 91.) Finding that Plaintiff John Busker advanced 20 a frivolous argument in his Opposition to Defendants’ motion for summary judgment, 21 the Court concluded that Defendants were entitled to recover their reasonable fees 22 associated solely with responding to that frivolous argument in their Reply. (ECF No. 23 102.) The Court then allowed Defendants to submit evidence of those fees and 24 Busker to submit an Opposition to Defendants’ calculation. (Id.) Defendants have 25 now offered evidence of the fees incurred in replying to Busker’s frivolous argument, 26 and Busker has opposed Defendants’ calculation. (ECF Nos. 103; 104.) For the 27 reasons discussed below, the Court AWARDS some, but not all, of the fees 28 Defendants request. 1 II. DEFENDANTS’ CALCULATION OF FEES AND BUSKER’S 2 RESPONSE 3 The frivolous argument at issue is a previously-unpled breach of contract claim. 4 (See Order 4–5.) Busker attempted to argue such a claim in opposition to Defendants’ 5 summary judgment motion, but since he never pleaded a breach of contract claim, 6 raising it in opposition to summary judgment was frivolous. (Id.) The only attorneys’ 7 fees that Defendants are permitted to recover are those incurred in responding to the 8 breach of contract claim in their Reply. (Id.) 9 Defendants claim that they incurred $94,175.50 in attorneys’ fees preparing the 10 Reply and related materials. (Mem. Regarding Attorneys’ Fees 1.) Of that, they 11 request an award of $18,835.10, which they argue reflects the amount incurred in 12 responding to the frivolous argument; alternatively, based on a different calculation, 13 they request $19,225.00. 14 Defendants attach the declaration of Patrick Madden, one of the attorneys of record 15 for Defendants, as well as a billing schedule listing all of the billing entries relevant to 16 the Reply brief. (See Madden Decl., ECF No. 103-1; Ex. A, ECF No. 103-2.) The 17 bases for Defendants’ claim that either $18,835.10 or $19,225.00 can be attributed 18 specifically to addressing the unpled breach of contract claim are twofold. First, 19 Defendants reach the $18,835.10 figure by estimating that 20% of the fees incurred in 20 preparing the Reply related to the unpled breach of contract argument. 21 Regarding Attorneys’ Fees 1.) The percentage is based on the fact that the contract 22 argument took about 17-18% of the briefing space, and it required “greater review of 23 and citation to deposition transcripts as well as a broader scope of research [as 24 compared with other issues addressed in the Reply].” (Id.) Next, the $19,225.00 25 amount is based on hour-by-hour estimates of time spent specifically addressing the 26 unpled breach of contract argument. (Id. at 4–6.) Defendants suggest that either 27 figure would represent an appropriate compensation for time spent addressing the 28 frivolous argument. (See generally id.) (Id.) In their memorandum regarding attorneys’ fees, 2 (Mem. 1 Unsurprisingly, Busker opposes the amount of fees that Defendants request. 2 Busker points out that based on Defendants’ prior estimate of $350,000 total 3 attorneys’ fees incurred in the action, Defendants’ present request would mean that the 4 Reply brief counted for more than a quarter of the fees incurred in the entire litigation. 5 (Opp’n 1.) In addition, Busker questions whether it is possible that responding to 6 what he calls his “half-page argument” on the breach of contract claim could 7 reasonably account for 20% of the total work in drafting the Reply. (Id.) Further, 8 Busker generally asserts that the billing entries provided are vague and at times 9 irrelevant. (Id. at 2–4.) 10 Busker proposes that rather than awarding the full amount Defendants request, 11 the Court instead award only two hours of an associate’s time and a half-hour of a 12 partner’s time, which Busker argues is “reasonable” for an amount of time spent 13 addressing one issue within a brief. (Id. at 2.) 14 III. LEGAL STANDARD 15 The amount of attorneys’ fees awarded is within the discretion of the trial court. 16 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69 (9th Cir. 1975). The Ninth Circuit 17 has set forth several factors for district courts to consider in assessing the 18 reasonableness of fees: “(1) the time and labor required, (2) the novelty and difficulty 19 of the questions involved, (3) the skill requisite to perform the legal service properly, 20 (4) the preclusion of other employment by the attorney due to acceptance of the case, 21 (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations 22 imposed by the client or the circumstances, (8) the amount involved and the results 23 obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 24 ‘undesirability’ of the case, (11) the nature and length of the professional relationship 25 with the client, and (12) awards in similar cases.” Id. at 70. However, a court need 26 only consider some of, or the most relevant, Kerr factors. Jordan v. Multnomah 27 Cnty., 815 F.2d 1258, 1263 n.11 (9th Cir. 1987). 28 3 IV. 1 DISCUSSION 2 The Court determines that the balance of the Kerr factors supports an award 3 substantially smaller than either amount that Defendants request. Busker is correct in 4 pointing out the absurdity of Defendants’ implicit suggestion that drafting the Reply 5 brief for one motion constituted a quarter of the attorneys’ fees incurred in the entire 6 litigation, spanning over a year and resulting in over 100 docket entries. (See Opp’n 7 1; see generally Docket.) It appears that having been denied the majority of the 8 attorneys’ fees they originally sought, Defendants now attempt to increase their 9 chances of still obtaining a large award by preposterously padding their billing 10 statements for the Reply. 11 The Court considers the first Kerr factor, time and labor required, in assessing 12 Defendants’ request. Defendants would have this Court believe that the time and 13 labor required in drafting a Reply brief includes spending almost 200 hours preparing, 14 researching, and drafting, with six separate attorneys contributing to the twelve page 15 document. (See Ex. A, ECF No. 103-2.) Finding these figures ludicrous as a matter 16 of common sense, the Court turns to the twelfth Kerr factor, awards in similar cases, 17 to consider the range of awards given for attorneys’ fees incurred in drafting a Reply. 18 Courts in this district have approved dramatically smaller awards for work on a Reply 19 brief than what Defendants ask for here. See, e.g., Magck v. Unum Life Ins. Co. of 20 Am., 289 F. Supp. 2d 1181, 1194 (S.D. Cal. 2003) (finding eight hours a reasonable 21 amount of billable time spent on a Reply brief); Fein v. Kesterson, No. CV 10-2048 22 ABC (SSx), 2010 WL 4902281, at *4 (C.D. Cal. Nov. 23, 2010) (approving an award 23 for six hours of work spent drafting a Reply brief); Nance v. May Trucking Co., No. 24 3:12-cv-01655-HZ, 2014 WL 6633111, at *6 (D. Or. Nov. 21, 2014) (awarding 14.9 25 hours of attorneys’ fees for work on a Reply brief, with 12.9 of those hours subject to 26 a 25% reduction due to vagueness in the billing descriptions); Uhl v. Colvin, No. 1:13- 27 cv-01303-SMS, 2016 WL 3361800, at *6 (E.D. Cal. June 16, 2016) (determining that 28 four hours spent drafting a Reply brief, resulting in fees of $761.12, was reasonable); 4 1 Winters v. Jordan, No. 2:09-cv-00522 JAM KJN PS, 2011 WL 1549391, at *8 (E.D. 2 Cal. Apr. 21, 2011) (deciding that $675 for work on a Reply brief constituted a 3 reasonable award). 4 Based on this range of cases, the Court conservatively determines that fifteen 5 hours’ worth of work on Defendants’ Reply brief is reasonable, with ten hours billed 6 at the middle-range rate of $495 reflected on the list of billing entries and five hours at 7 $600, lead counsel Patrick Madden’s rate. This award is slightly larger than that 8 granted in any case cited in this Order, the reason being that this Reply was in support 9 of a case-dispositive motion for summary judgment. The Court’s calculation results 10 in a total of $7,950 incurred in working on the Reply brief. The Court does not 11 disagree with the reasonableness of Defendants’ listed billing rates, nor the estimation 12 that 20% of the work on the Reply can be attributed to addressing the unpled breach of 13 contract issue. As such, the Court awards 20% of its recalculation of fees incurred in 14 drafting the Reply brief for a total of $1,590.00. 15 The Court considers but is not swayed by the other Kerr factors; for instance, 16 the skill and experience of the attorneys appears to reasonably support their billing 17 rates in this case, and the novelty/difficulty of the questions asked is not such that a 18 different amount is warranted. V. 19 20 21 CONCLUSION For the reasons discussed above, the Court AWARDS Defendants attorneys’ fees in the amount of $1,590.00. 22 23 IT IS SO ORDERED. 24 25 April 5, 2017 26 27 28 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 5

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