Lyon v. Bergstrom Law, Ltd.

Filing 47

ORDER Granting Plaintiff's 43 Motion for Attorney's Fees and Costs, signed by District Judge Dale A. Drozd on 9/7/2017. (Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICOLE LYON,

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Plaintiff,

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No. 1:16-cv-00401-DAD-SKO

ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES AND COSTS

v.
BERGSTROM LAW, LTD.,

(Doc. No. 43)

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Defendant.

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This matter came before the court on September 6, 2017 for hearing on plaintiff’s motion

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for attorney’s fees and costs. (Doc. No. 43.) Attorney Crosby S. Connolly appeared on behalf of

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plaintiff Nicole Lyon. No appearance was made by or on behalf of defendant Bergstrom Law,

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Ltd., against which default judgment has previously been entered. (Doc. No. 41.) After oral

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argument, the motion was taken under submission. For the reasons stated below, plaintiff’s

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motion for attorney’s fees and costs is granted.
BACKGROUND

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Plaintiff filed suit against defendant on March 24, 2016, alleging violations of the federal

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Fair Debt Collection Practices Act (the “FDCPA”) and California’s Rosenthal Fair Debt

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Collection Practices Act (the “Rosenthal Act”). (Doc. No. 1.)

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On May 31, 2016, defendant filed a motion to dismiss plaintiff’s complaint for failure to

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state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 5.) Upon

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submission of briefs by both parties, and after oral argument, the court denied defendant’s

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motion to dismiss on August 5, 2016. (Doc. No. 18.) Thereafter, and pursuant to a prior

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agreement between the parties, defendant’s responses to plaintiff’s discovery requests became

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due on September 4, 2016. (Doc. No. 25-2 at ¶¶ 8–9; Doc. No. 25-5.) On August 5, 2016,

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plaintiff’s counsel emailed defendant’s counsel, Katherine G. Heidbrink, confirming the date on

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which defendant intended to provide responses to plaintiff’s discovery requests. (Doc. No. 25-2

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at ¶ 13; Doc. No. 25-6.) Later that day, plaintiff’s counsel emailed Jeremy Bergstrom, the

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managing attorney at defendant Bergstrom Law, Ltd. (Doc. No. 25-2 at ¶ 15; Doc. No. 25-7.)

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Plaintiff’s counsel stated in his email to Mr. Bergstrom that he had recently become aware of

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attorney Heidbrink’s departure from Bergstrom Law. (Id.) Plaintiff’s counsel reiterated his

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request that Mr. Bergstrom provide the date on which defendant intended to provide responses to

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plaintiff’s discovery requests. (Id.) Plaintiff’s counsel received no response to this email. (Doc.

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No. 25-22 at ¶ 16.)
Over the following weeks, plaintiff’s counsel made further efforts to contact Mr.

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Bergstrom and other employees of Bergstrom Law, including by phone, email, fax, and mail.1

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On October 14, 2016, after receiving no response to its requests, plaintiff filed a motion to compel

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defendant’s discovery responses, which included a request for attorney’s fees accrued in

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connection with the repeated attempts to contact defendant’s counsel. (Doc. No. 27.) Defendant

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did not oppose the motion to compel, which was granted by the assigned magistrate judge on

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November 2, 2016 with an award of attorney’s fees to plaintiff’s counsel . (Id.) Defendant has

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The additional attempts include: (1) an email to Mr. Bergstrom and another Bergstrom Law
employee on September 12, 2016 (Doc. No. 25-2 at ¶¶ 17–18; Doc. No. 25-8.); (2) a meet and
confer letter sent by email, fax, and USPS to Mr. Bergstrom on September 21, 2016 (Doc. No.
25-2 at ¶¶ 19–20; Doc. No. 25-9.); (3) an email to Mr. Bergstrom on September 26, 2016 (Doc.
No. 25-2 at ¶¶ 20–21; Doc. No. 25-10.); (4) a voicemail left with Yvonne McGovern, an attorney
at Bergstrom Law, on September 26, 2016 (Doc. No. 25-2 at ¶¶ 22–23.); (5) separate emails sent
to Mr. Bergstrom on September 28, 29, and 30, 2016 (Doc. No. 25-2 at ¶¶ 24–28; Doc. No. 2511; Doc. No. 25-12; Doc. No. 25-13.); and (6) a voicemail left with Ms. McGovern on October 3,
2016. (Doc. No. 25-2 at ¶ 31.)
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failed to comply with this order, both by refusing to respond to plaintiff’s discovery requests and

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by failing to timely pay attorney’s fees. (Doc. No. 28; Doc. No. 29.)

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On December 28, 2016, plaintiff filed a motion to strike defendant’s answer to the

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complaint. (Doc. No. 30.) Defendant did not oppose the motion. On January 17, 2017, the

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assigned magistrate judge issued findings and recommendations recommending that plaintiff’s

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motion to strike be granted, and that default be entered against defendant. (Doc. No. 31.) On

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March 30, 2017, the undersigned adopted those findings and recommendations in full, struck the

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defendant’s answer, and directed the Clerk of the Court to enter default against defendant. (Doc.

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No. 35.)

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On April 25, 2017, plaintiff moved for default judgment. (Doc. No. 38.) On May 31,

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2017, the magistrate judge issued findings and recommendations recommending plaintiff’s

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motion for default judgment be granted. (Doc. No. 40.) On July 11, 2017, the undersigned

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adopted those findings and recommendations in full, granted plaintiff’s motion for default

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judgment, and awarded statutory damages to plaintiff under both the FDCPA and the Rosenthal

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Act. (Doc. No. 41.) The court also directed plaintiffs to file a motion for attorney’s fees and

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costs within fourteen days. (Id.) On July 24, 2017, plaintiffs filed a motion for attorney’s fees

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and costs, which is presently before the court.

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LEGAL STANDARD
The FDCPA provides that any debt collector who fails to comply with its provisions is

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liable “in the case of any successful action . . . [for] the costs of the action, together with a

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reasonable attorney’s fee as determined by the court.” Camacho v. Bridgeport Fin., Inc., 523

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F.3d 973, 978 (9th Cir. 2008) (quoting 15 U.S.C. § 1692k(a)(3)). The language of the FDCPA

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makes the award of attorney’s fees mandatory rather than discretionary. Id.

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In calculating the fee award, courts are instructed to use the “lodestar method.” Ferland v.

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Conrad Credit Corp., 244 F.3d 1145, 1149 n. 4 (9th Cir. 2001). The lodestar method requires

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multiplying the number of hours the prevailing party reasonably expended on the litigation by a

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reasonable hourly rate. Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003) (citation

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omitted). There is a “strong presumption” that the lodestar figure represents a reasonable award,
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and the figure should only be departed from “if certain factors relating to the nature and difficulty

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of the case overcome this strong presumption and indicate that such an adjustment is necessary.”

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Hiken v. Dep’t of Def., 836 F.3d 1037, 1044 (9th Cir. 2016) (quoting Long v. IRS, 932 F.2d 1309,

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1314 (9th Cir. 1991)).

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The district court must determine a reasonable hourly rate, taking into account the

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experience, reputation, and ability of the attorney; the outcome of the results of the proceedings;

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the customary fees in the community; and the novelty or the difficulty of the question presented.

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Hiken, 836 F.3d at 1044; Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986).

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Generally, the forum district represents the relevant legal community. Gates v. Deukmejian, 987

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F.2d 1392, 1405 (9th Cir. 1992); see also Shirrod v. Dir., Office of Workers’ Comp. Programs,

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809 F.3d 1082, 1087 (9th Cir. 2015); Camacho, 523 F.3d at 979 (determining that “generally, the

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relevant community [for the prevailing market rate] is the forum in which the district court sits”).

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After determining that the hourly rate is reasonable, the next step in calculating attorney’s

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fees under the lodestar method is to examine the number of hours reasonably expended in

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prosecuting the case. Where attorney’s fees are awarded, the prevailing party’s counsel is

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normally entitled to compensation for “all hours reasonably expended on the litigation.” Hensley

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v. Eckerhart, 461 U.S. 424, 435 (1983); see also Ibrahim v. U.S. Dep’t of Homeland Sec., 835

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F.3d 1048, 1060 (9th Cir. 2016). However, compensation may be reduced where there is

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inadequate documentation of hours expended, or where the time claimed is “excessive, redundant,

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or otherwise unnecessary.” Jankey v. Poop Deck, 537 F.3d 1122, 1132 (9th Cir. 2008) (quoting

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Hensley, 461 U.S. at 434); Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

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In addition to attorney’s fees, the FDCPA also contemplates the awarding of “costs of the

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action” to the prevailing party. Camacho, 523 F.3d at 978. Accord Marx v. General Revenue

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Corp., 668 F.3d 1174, 1179 (10th Cir. 2011), aff’d, 568 U.S. 371 (2013).

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DISCUSSION

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A.

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Plaintiff’s counsel requests that he be awarded fees at the rate of $295.00 per hour. (Doc.

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Reasonable Hourly Rate

No. 43-1 at 14.) Plaintiff’s counsel submits his own declaration, as well as the declarations of
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attorneys Clinton Rooney and Stephen Recordon, two consumer rights attorneys who do not

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practice at plaintiff’s counsel’s law firm.2 (Doc. No. 43-2; Doc. No. 43-5; Doc. No. 43-6.) The

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court notes that “[a]ffidavits of the [plaintiff’s] attorney and other attorneys regarding prevailing

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fees in the community, and rate determinations in other case, particularly those setting a rate for

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the [plaintiff’s] attorney, are satisfactory evidence of the prevailing market rate.” Hiken, 836 F.3d

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at 1044 (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir.

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1990)). Attorneys Rooney and Recordon declare they are familiar with plaintiff’s counsel’s

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skills, experience, and reputation. (Doc. Nos. 43-5, 43-6.) Like plaintiff’s counsel, both Rooney

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and Recordon are consumer rights attorneys, and regularly practice before California state and

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federal courts. (Id.) On the basis of their experience and familiarity with this field of law, both

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attorneys Rooney and Recordon conclude that in the present litigation, an hourly rate of $295.00

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would be reasonable and appropriate. (Id.)
Plaintiff’s counsel has been employed by his present firm as an attorney for nearly five

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years. (Doc. No. 43-1 at 15.) His firm works exclusively in the field of consumer rights law, and

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he has received training in the field. (Id.) Plaintiff has also produced multiple declarations

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averring that his requested hourly rate of $295.00 is reasonable in light of his experience,

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expertise, and the prevailing rates in the region. (Doc. No. 43-6 at 2.) Moreover, in obtaining a

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default judgment, plaintiff’s counsel has obtained a favorable result for his client. See Hensley,

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461 U.S. at 435 (“Where a plaintiff has obtained excellent results, his attorney should recover a

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fully compensatory fee.”); Chalmers, 796 F.2d at 1211 (noting that the district court should

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consider “the outcome of the results of the proceedings” in determining an appropriate fee

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award). Given his experience, training, and the prevailing market rate for consumer rights

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attorneys in the region, the court is satisfied an hourly rate of $295.00 constitutes a reasonable

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rate in the forum district for the work plaintiff’s counsel performed.

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In his declaration, plaintiff’s counsel directs the court’s attention to a total of six separate
lawsuits in which courts approved the hourly rate for his requested attorney’s fees. (Doc. No. 432 at ¶¶ 30–35.) The amounts in each case ranged from $295.00 per hour to $325.00 per hour.
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B.

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Plaintiff’s counsel seeks compensation for 45.3 hours of attorney time devoted to this

Hours Reasonably Expended

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case. When multiplied by its requested hourly rate of $295.00, this yields a total attorney’s fee in

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the amount of $13,363.50. (Doc. No. 43-1 at 19.) Although the time sheet submitted by

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plaintiff’s reflect that other attorneys and administrative staff also performed work on plaintiff’s

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behalf in the present case, plaintiff seeks an award of fees only for the work conducted by Mr.

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Connolly. (Doc. No. 43-3.)

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Plaintiff’s success in this case was made relatively straightforward by defendant’s failure

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to contest several motions, including the present one. Nonetheless, the court is satisfied with the

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documentation plaintiff’s counsel has presented and finds that plaintiff’s counsel exerted

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reasonable efforts in attempting to prosecute its case in a timely manner. As a result, and in light

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of defendant’s failure to object, the court will award plaintiff compensation for 45.3 hours, the

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full amount sought.

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C.

Costs

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Finally, plaintiff’s counsel seeks an award of costs in the amount of $406.21. These costs

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amount to $400.00 for the filing fee for this case, and the remaining $6.21 for envelopes and

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postage used in prosecution of the present action.
Expense awards “should be limited to typical out-of-pocket expenses that are charged to a

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fee paying client,” and frequently include reimbursements for “(1) meals, hotels, and

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transportation; (2) photocopies; (3) postage, telephone, and fax; (4) filing fees; (5) messenger and

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overnight delivery; (6) online legal research; (7) class action notices; (8) experts, consultants, and

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investigators; and (9) mediation fees.” In re Immune Response Secs. Litig., 497 F. Supp. 2d 1166,

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1177 (S.D. Cal. 2007); see also Johnson v. Yates, No. 2:14-cv-01189-TLN-EFB, 2017 WL

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3438737, at *3 (E.D. Cal. Aug. 10, 2017). Plaintiff’s requested costs are appropriate, and the

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court awards the full amount sought.

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CONCLUSION

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For the reasons set forth above:

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granted;
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3.

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The court awards costs to plaintiff in the total amount of $406.21, for a total award
of fees and costs in the amount of $13,769.71; and

4.

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The court awards attorney’s fees to plaintiff in the total amount of $13,363.50,
representing 45.3 hours of attorney time expended at a rate of $295.00 per hour;

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Plaintiff’s motion for the award of attorney’s fees and costs (Doc. No. 43) is

Defendant shall pay the amount awarded to plaintiff’s counsel within twenty-one
days of the date of service of this order.

IT IS SO ORDERED.
Dated:

September 7, 2017
UNITED STATES DISTRICT JUDGE

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