SureTec Insurance Company v. BRC Construction, Inc. et al

Filing 37

ORDER signed by Judge Kimberly J. Mueller on 8/30/2013 ORDERING 36 FINDINGS AND RECOMMENDATIONS are NOT ADOPTED; 31 Motion for Default Judgment is DENIED; Counsel may submit any supplemental justification with respect to their request for fees and costs to the undersigned within 21 days of the filed date of this order. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SURETEC INS. CO.,

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Plaintiff,

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No. 2:11-cv-2813 KJM AC

v.

ORDER

BRC CONSTRUCTION, INC., et al.,

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Defendants.

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On May 3, 2013, plaintiff filed a motion for default judgment, seeking to amend a prior

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default judgment entered in this case. See ECF No. 22. The matter was referred to the magistrate

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judge assigned to this case under Local Rule 72-302(c)(19).

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On June 13, 2013, the magistrate judge filed findings and recommendations, which were

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served on the parties and which contained notice to the parties that any objections to the findings

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and recommendations were to be filed within fourteen days. No objections to the findings and

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recommendations have been filed.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully

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reviewed the file, the court declines to adopt the findings and recommendations.

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As the magistrate judge recognized, plaintiff is entitled to attorneys’ fees under California

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Civil Code §1717 for the breach of contract claim. In California, “the fee setting inquiry . . .

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ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by

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the reasonable hourly rate.” PLCM Grp., Inc. v. Drexler, 22 Cal. 4th 1084, 1095 (2000). In

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calculating the hours reasonably expended, a court should not include “‘padding’ in the form of

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inefficient or duplicative efforts.” Ketchum v. Moses, 24 Cal. 4th 1122, 1132 (2001). In

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determining the reasonable hourly rate, the court should adopt “that prevailing in the community

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for similar work.” PLCM, 22 Cal. 4th at 1995; Sunstone Behavioral Health Inc. v. Alameda Cnty.

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Med. Ctr., 646 F. Supp. 2d 1206, 1213 (2009).

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Here, plaintiff has not presented any information on the prevailing rate for attorneys

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engaged in similar litigation in the Sacramento division of the Eastern District of California.

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Except for the $315 an hour rate by partner Rebecca S. Glos, plaintiff has not even disclosed the

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billing rates for the attorneys and staff who worked on the matter. The prevailing rate in this

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district has been found by one judge of the court to be in the range of $250-$275 an hour, for debt

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collection and similar litigation. See Scott v. Kelkris Assoc., Inc., No. CIV. 2:10–1654 WBS

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DAD, 2012 WL 1131360, at *5 (E.D. Cal. Mar. 29, 2012). This court has applied the top end of

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this range if the record provides no grounds for a higher rate. See, e.g., Broadcast Music, Inc. v.

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Antigua Cantina & Grill, LLC, No. CIV. 2:12–1196 KJM DAD, 2013 WL 2244641 (E.D. Cal.

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May 21, 2013). Although the rate may be adjusted based on any number of factors, counsel here

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has presented nothing justifying a higher rate.

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Additionally, plaintiff has not provided any information about the number of total hours

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billed, or the number of hours billed by each attorney or staff member. Without this information,

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the court is unable to evaluate whether the hours were reasonably expended toward this litigation.

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The court therefore declines to adopt the magistrate judge’s recommended award as to
fees, while providing counsel an opportunity to respond to the court’s concern.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 13, 2013, are not adopted;

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2. Plaintiff’s request for an amended default judgment is denied; and
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3. Counsel may submit any supplemental justification with respect to their request for

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fees and costs to the undersigned within twenty-one days of the filed date of this order.

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DATED: August 30, 2013.

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UNITED STATES DISTRICT JUDGE

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