Aecom Energy and Construction, Inc. v. John Ripley et al

Filing 233

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES Dkt. No. 162 by Magistrate Judge Suzanne H. Segal. The Court GRANTS Plaintiff's Request in full and awards Plaintiff $21,716.30 in attorney's fees for work done on the July 24, 2018 Contempt Motion, filed at Dkt. No. 162 . Defendants are ORDERED to pay Plaintiff the fee award within thirty days of the date of this Order. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AECOM ENERGY & CONSTRUCTION,
INC.,
Plaintiff,

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Case No. CV 17-5398 RSWL (SSx)
MEMORANDUM DECISION AND ORDER
GRANTING PLAINTIFF’S REQUEST
FOR ATTORNEY’S FEES

v.
JOHN RIPLEY, et al.,

Dkt. No. 162

Defendants.

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I.

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INTRODUCTION

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On June 27, 2018, the Court granted in part and denied in part

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Plaintiff’s motion to compel further responses to certain discovery

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requests.

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Defendants to supplement their responses to

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No. 15, which sought information about Topolewski America’s revenue

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and profits relating to the use of the MK brand; (2) Request for

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Production No. 19, which sought corporate financial and income

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statements; and (3) Request for Production No. 20, which sought

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the corporate Defendants’ income tax and bank statements.

(Dkt. No. 154).

As relevant here, the Court ordered
(1) Interrogatory

(Id. at

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17-18).

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Responses” on July 18, 2018, which Plaintiff quickly determined

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were deficient.1

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Supplemental Responses on July 23, 2018.

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2018, Plaintiff filed a Motion to Hold Defendants in Civil Contempt

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for Violating the Court’s Order re Discovery and to Award Plaintiff

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Its Costs and Fees.

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31, 2018, one week after the Contempt Motion was filed, the

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corporate Defendants served their Third Supplemental Responses to

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Defendants served a joint set of “Further Supplemental

Individual Defendant Gary Topolewski served Third
The next day, July 24,

(“Contempt Motion,” Dkt. No. 162).

On July

the requests.

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On September 7, 2018, the Court granted Plaintiff’s Contempt

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Motion in part and denied it in part.

(“Contempt Order,” Dkt. No.

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210).

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Supplemental Responses to Interrogatory No. 15, (id. at 15), and,

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for the corporate Defendants, Request for Production No. 20.

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at 24). The Court denied Plaintiff’s Motion with respect to Request

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for Production No. 19 and the response to Request for Production

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No. 20 by Topolewski on the ground that the Third Supplemental

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Responses to those requests satisfied the Court’s prior Order.

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(Id. at 20, 25).

Specifically, the Court ordered Defendants to serve Fourth

(Id.

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Defendants served their first set of supplemental discovery
responses in April 2018, before Plaintiff had filed its motion to
compel. The dates of service of Defendants’ various supplemental
discovery responses listed in the paragraph above are taken from
the Court’s September 7, 2018 Order and the supporting documents
cited therein, and will be referred to here without further
citation. (See Dkt. No. 210 at 3).
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The Order also granted Plaintiff’s request for attorney’s fees

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with respect to each discovery request.

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Fourth Supplemental Response, the Court granted the attorney’s fees

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request on the ground that the Motion for Contempt was necessary

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to obtain a complete and proper response to the discovery request.

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(See id. at 15, 25).

Where the Court determined that Defendants

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were

in

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Supplemental Responses satisfied the Court’s prior Order, the Court

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nevertheless granted the attorney’s fees request on the ground that

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the only reason Defendants provided Third Supplemental Responses

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was because of the Motion for Contempt.

not

presently

contempt

Where the Court ordered a

because

Defendants’

Third

(Id. at 15, 20, 25).

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Pursuant

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to

the

Court’s

Order,

on

September

11,

2018,

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Plaintiff submitted a Supplemental Filing in Support of Its Costs

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and Fees Incurred by the Motion for Civil Contempt, (“P Memo.”),

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including the declaration of Yungmoon Chang (“Chang Decl.”).

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No. 213).

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(“Opp.,” Dkt. No. 223).

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21, 2018.

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the Court GRANTS Plaintiff’s Request in full and awards Plaintiff

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the

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prosecuting its July 24, 2018 Contempt Motion.

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(Dkt.

Defendants filed an Opposition on September 18, 2018.
Plaintiff’s Reply followed on September

(“Reply,” Dkt. No. 226).

$21,716.30

in

fees

that

it

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For the reasons stated below,

incurred

in

preparing

and

(Dkt. No. 162).

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II.

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STANDARD

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Attorneys’ fees in a civil contempt or Rule 37 proceeding are

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generally limited to those reasonably and necessarily incurred in

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the attempt to enforce compliance.

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Kong Tri-Ace Tire Co., 281 F. Supp. 3d 967, 993 (C.D. Cal. 2017)

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(quoting Abbott Labs. v. Unlimited Beverages, Inc., 218 F.3d 1238,

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1242 (11th Cir. 2000)).

Toyo Tire & Rubber Co. v. Hong

Courts employ the “lodestar method” to

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determine the reasonableness of the requested attorneys’ fees.

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Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

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is calculated by multiplying the number of hours the prevailing

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party reasonably expended on the litigation by a reasonable hourly

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rate.”

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(9th Cir. 2001) (internal quotation marks and citation omitted);

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see also Gracie v. Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000)

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(same).

“The ‘lodestar’

Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4

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The fee applicant must submit evidence of the hours worked

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and the rates claimed, Hensley, 461 U.S. at 433, and bears the

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burden of showing that the rates charged and hours worked are

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reasonable.

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(9th Cir. 1983).

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resulting product is presumed to be the reasonable fee.”

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(internal quotation marks and citations omitted).

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the presumptive reasonableness of the lodestar amount, the party

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opposing

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requires submission of evidence to the district court challenging

the

See Intel Corp. v. Terabyte Int’l, 6 F.3d 614, 623

fee

“If the applicant satisfies its burden . . . the

application

“has

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a

burden

of

Id.

To challenge

rebuttal

that

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the accuracy and reasonableness of the hours charged or the facts

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asserted by the prevailing party in its affidavits.”

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Deukmejian,

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added).

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excessive or redundant, may be excluded by the court.

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461 U.S. at 434.

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if it exceeds the prevailing rate in the legal community where the

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district court sits.

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73 F.3d 895, 906 (9th Cir. 1995).

987

F.2d

1392,

1397–98

(9th

Cir.

1992)

Gates v.
(emphasis

All hours that are not reasonably expended, or that are
Hensley,

The court may also lower counsel’s hourly rate

Schwarz v. Sec’y of Health and Human Serv.,

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“While in most cases the lodestar figure is presumptively

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reasonable, in rare cases, a district court may make upward or

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downward adjustments to the presumptively reasonable lodestar on

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the basis of those factors set out in Kerr v. Screen Extras Guild,

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Inc., 526 F.2d 67, 69–70 (9th Cir. 1975) [abrogated in part on

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other grounds by City of Burlington v. Dague, 505 U.S. 557 (1992)]

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that have not been subsumed in the lodestar calculation” itself.2

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Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir.

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2008) (quoting Gates, 987 F.2d at 1402); see also Stetson v.

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Grissom,

821

F.3d

1157,

1167

(9th

Cir.

2016)

(remanding

for

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According to the Camacho court, factors potentially warranting
an adjustment of the lodestar amount may include “the preclusion
of other employment by the attorney due to acceptance of the case;
time limitations imposed by the client or the circumstances; the
amount involved and the results obtained; the ‘undesirability’ of
the case; the nature and length of the professional relationship
with the client; and awards in similar cases.” Camacho, 523 F.3d
at 982 n.1 (citing Kerr, 526 F.2d at 70)).
These “adjustment”
factors are not at issue here, however, because Plaintiff’s
attorneys do not seek a multiplier of the lodestar amount, and
Defendants’ attorneys challenge only the hours and rates in the
lodestar calculation itself.
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explicit analysis of “why the Kerr reasonableness factor do or do

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not favor applying a multiplier (positive or negative) in this

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case”)

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Nonetheless, the presumption that the lodestar figure represents a

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“reasonable fee” is “strong,” and “therefore, it should only be

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enhanced or reduced in ‘rare and exceptional cases.’”

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SJB-P.D. Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000) (quoting

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Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,

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478 U.S. 546, 565 (1986)).

(internal

quotation

marks

and

citation

omitted).

Fischer v.

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III.

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DISCUSSION

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Plaintiff seeks an attorney’s fees award totaling $21,716.30

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for fees incurred in connection with the July 24, 2018 Contempt

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Motion, broken down as follows:

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Partner Diana Torres:

06.60 hours @ $892/hr = $ 5,887.20

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Associate Yungmoon Chang:

23.90 hours @ $554/hr = $13,240.60

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Paralegal Keith Catuara:

07.75 hours @ $334/hr = $ 2,588.50

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Total

$21,716.30

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A.

Reasonableness Of Rates

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The

District

Judge

has

twice

awarded

attorney’s

fees

to

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Plaintiff in this action for the cost of bringing other successful

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contempt

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Attorneys’ Fees, Dkt. No. 97, at 5-6; Order re: Plaintiff’s Request

motions.

(See

Order

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re:

Plaintiff’s

Request

for

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for Attorneys’ Fees, Dkt. No. 155, at 9-10).

In making the awards,

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the Court concluded that the exact hourly rates requested here for

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Torres, Chang and Catuara were reasonable and “in line with rates

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[that] courts in the Central District have previously approved.”

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(Dkt. No. 97 at 4) (citing Perfect 10, Inc. v. Giganews, Inc., 2015

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WL 1746484, at *20 (C.D. Cal. Mar. 24, 2015), aff’d, 847 F.3d 657

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(9th Cir. 2017) (approving partner rate between $825 and $930,

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associate rate between $350 and $690, and paralegal rate between

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$240 and $345); Burton Way Hotels, Ltd. v. Four Seasons Hotels

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Ltd., 2015 WL 13081297, at *3 (C.D. Cal. Jan. 21, 2015) (approving

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partner rate of $886.50 and associate rate of $540)).

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Despite the District Judge’s prior findings, Defendants argue

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that counsel’s rates are excessive and that Plaintiff has failed

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to meet its burden of production showing that the rates are

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consistent

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District.

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the proposition that declarations of attorneys in the community

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may be sufficient proof of the reasonableness of counsel’s rates,

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declarations by practitioners are not the exclusive means by which

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counsel can establish a reasonable hourly rate.

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Circuit has expressly held that in addition to declarations of

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counsel,

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satisfactory evidence of the prevailing market rate.’”

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523 F.3d at 980 (quoting United Steelworkers of Am. v. Phelps Dodge

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Corp., 896 F.2d 403, 407 (9th Cir. 1990)).

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Burton Way Hotels, both cited by Plaintiff in its Supplemental

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Brief, establish judicial approval of rates almost exactly the same

with

the

prevailing

(Opp. at 2).

“‘rate

market

rates

in

the

Central

While Defendants cite several cases for

determinations

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in

other

(Id.).

cases

.

The Ninth

. .

are

Camacho,

Here, Perfect 10 and

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as those requested here, and easily support the finding that the

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rates requested here are reasonable in the Central District.

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P Memo. at 2).

(See

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Plaintiff’s counsel’s rates remain unchanged from the prior

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fees awards in this case, and, as the District Judge observed in

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approving those rates, “there is no reason to believe that those

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rates are no longer reasonable,” even if they may be “on the higher

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end” of the fee range.

(Dkt. No. 155 at 9-10).

In the Court’s

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view, Plaintiff’s counsel’s briefs and argument were excellent, in

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a relatively complex matter, and deserving of an hourly rate at

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the higher end of the scale.

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the hourly rates are reasonable and consistent with comparable

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market rates in the Central District.

Accordingly, the Court finds that

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B.

Reasonableness Of Time Spent

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The

Court

must

next

assess

“whether

attorneys

for

the

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prevailing party could have reasonably billed the hours they claim

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to their private clients.”

Gonzalez v. City of Maywood, 729 F.3d

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1196, 1202 (9th Cir. 2013).

In so doing, courts perform an “‘hour-

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by-hour analysis of the fee request,’ and exclude those hours for

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which it would be unreasonable to compensate the prevailing party.”

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Id. (quoting Gates, 987 F.2d at 1399).

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is “massive” and includes non-compensable hours, the district court

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has the authority “to make across-the-board percentage cuts either

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in the number of hours claimed or in the final lodestar figure as

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Where the fee application

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a practical means” of excluding non-compensable hours from the

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total fees awarded.

Id.

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Defendants broadly assert that the amount of hours Plaintiff’s

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counsel billed in connection with the Contempt Motion is excessive.

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(Opp. at 3).

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because they are not supported by specific citations to the record,

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such as the timekeeper name and date on the spreadsheet of time

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billed to AECOM attached as Exhibit A to Chang’s declaration (the

Defendants’ contentions are difficult to follow

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“spreadsheet”).

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in part be referring to a summary in Chang’s declaration of the

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combined time it took Torres, Chang and Catuara to complete various

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tasks, such as (1) corresponding and conferring with Defendants

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prior to filing the Contempt Motion (1.6 hours); (2) researching

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and drafting the Motion and supporting documents (12.65 hours);

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(3) reviewing the Opposition and Third Supplemental Discovery

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Responses,

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(4) researching

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declaration (13.0 hours); and (5) preparing for and attending the

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hearing on the Contempt Motion (7.20 hours).

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2).

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reflect

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Defendants also ignore that tasks were routinely allocated to the

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lowest appropriate biller.

and

However, it appears that Defendants may at least

developing
and

a

drafting

reply
the

strategy

reply

brief

(1.3
and

hours);

supporting

(See Chang Decl. at

However, Defendants’ critiques overlook that these totals
the

combined

time

of

two

lawyers

and

one

paralegal.

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Defendants further complain, apparently in reference to the

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spreadsheet, that the 3.7 hours that Plaintiff is claiming for the

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Contempt Motion hearing and the 2.5 hours for preparation of the
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instant supplemental fees memo exceeds the reasonable amount of

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time those tasks should have taken.

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Defendants overlook that the 3.7 hours allocated to the hearing

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reflect both the associate’s preparation time on the day of the

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hearing and the attendance at the hearing by lead counsel and the

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associate, both of whom participated in the proceedings.

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hours allocated to the preparation and filing of the supplemental

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fees motion similarly combine the time spent by lead counsel, the

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associate and the paralegal to assemble the supporting materials

(Opp. at 3-4).

However,

The 2.5

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and to draft and file the memorandum and declaration.

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does not see any billing entries that are “excessive, redundant,

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or otherwise unnecessary,” and therefore finds the total hours

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billed,

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paralegal, to be reasonable.

as

allocated

among

the

lead

counsel,

The Court

associate,

and

Hensley, 461 U.S. at 434.

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IV.

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CONCLUSION

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For the reasons stated above, the Court GRANTS Plaintiff’s

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Request in full and awards Plaintiff $21,716.30 in attorney’s fees

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for work done on the July 24, 2018 Contempt Motion, filed at Dkt.

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No. 162.

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within thirty days of the date of this Order.

Defendants are ORDERED to pay Plaintiff the fee award

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DATED:

October 9, 2018
/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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