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