Early et al v. Keystone Restaurant Group, LLC et al

Filing 157

ORDER signed by District Judge John A. Mendez on 2/22/19 GRANTING IN PART AND DEYING IN PART Early's Motion for attorneys fees 139 . The Court AWARDS Plaintiff the following: (1) $338,002.50 in attorneys' fees for litigation and tri al and (2) $200.24 in nontaxable expenses under Federal Rule of Civil Procedure 54(d)(2)(A), for a total of $338,202.74. Additionally, the Court GRANTS IN PART AND DENIES IN PART Keystone's Bill of Costs and GRANTS Keystone $2,082.36 in post-9/12/17 Rule 68 offer taxable costs, 133 . Finally, the Court GRANTS IN PART AND DENIES IN PART Early's Bill of Costs and GRANTS Early $6,176.65 in pre-9/12/17 Rule 68 offer taxable costs, 134 . (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SARAH EARLY,

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Plaintiff,

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v.
KEYSTONE RESTAURANT GROUP, LLC,

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Defendant.

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Case No. 2:16-cv-00740-JAM-DB
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
BILL OF COSTS, PLAINTIFF’S
BILL OF COSTS, AND PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND
COSTS

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This matter is before the Court on Plaintiff Sarah Early’s

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(“Plaintiff” or “Early”) Motion for Attorneys’ Fees and Costs.

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Fee Mot., ECF No. 139.

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(“Defendant” or “Keystone”) opposes the motion.

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152.

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costs.

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Costs, ECF No. 134.

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See Def.’s Obj. to Costs, ECF No. 135; Pl.’s Obj. to Costs, ECF

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No. 136; Def.’s Resp. to Pl.’s Obj., ECF No. 150.

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reasons set forth below, the Court GRANTS IN PART AND DENIES IN

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PART Keystone’s Bill of Costs, GRANTS IN PART AND DENIES IN PART

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Early’s Bill of Costs, and GRANTS IN PART AND DENIES IN PART

Defendant Keystone Restaurant Group, LLC
Opp’n, ECF No.

Additionally, both Early and Keystone submitted bills of
See Def.’s Bill of Costs, ECF No. 133; Pl.’s Bill of
Each party opposes awarding the other costs.

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For the

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Early’s Motion for Attorneys’ Fees and Costs.1

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I.

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INTRODUCTION

Early filed this case in April 2016 alleging she had been

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the victim of sexual harassment, discrimination, and retaliation

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during her employment at a Sonic restaurant operated by

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franchisee Keystone.

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Court granted Early partial summary judgment on one claim, ECF

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No. 51, and the jury returned a verdict for Early on two

See Second Am. Complaint, ECF No. 18.

The

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additional claims, ECF No. 121.

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her California Fair Employment and Housing Act (FEHA) hostile

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work environment, quid pro quo sexual harassment, and failure to

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prevent sexual harassment and retaliation claims against

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Keystone.

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and Keystone have submitted Bill of Costs: Early for $8,027.54,

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Pl.’s Bill of Costs, and Keystone for $9,759.73, Def.’s Bill of

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Costs.

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Specifically, Early prevailed on

The jury awarded Early $50,000 in damages.

Both Early

As the prevailing party in this action, Plaintiff now seeks

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attorneys’ fees in the amount of $394,073.50 and non-taxable

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costs in the amount of $11,488.78.

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opposes Early’s motion for fees and seeks its own costs based on

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settlement offers made prior to trial.

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II.

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See Fee Mot.

Keystone

See Opp’n.

LEGAL STANDARD

Under Eastern District of California Local Rule 293, a
prevailing party has twenty-eight (28) days after entry of a

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for February 5, 2019.
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final judgment to move for an award of attorneys’ fees.

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Cal. L.R. 293(a).

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establishing entitlement to an award and documenting the

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appropriate hours expended and hourly rates.”

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Eckerhart, 461 U.S. 424, 437 (1983).

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E.D.

“[T]he fee applicant bears the burden of

Hensley v.

The Ninth Circuit requires a district court to calculate an

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award of attorneys’ fees by first calculating the “lodestar.”

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See Caudle v. Bristow Optical Co. Inc., 224 F.3d 1014, 1028 (9th

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Cir. 2000).

“The ‘lodestar’ is calculated by multiplying the

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number of hours the prevailing party reasonably expended on the

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litigation by a reasonable hourly rate.”

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Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996)).

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The lodestar is presumptively reasonable unless some exceptional

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circumstance justifies deviation.

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537, 539 (9th Cir. 1998).

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district court should exclude from the lodestar amount hours that

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are not reasonably expended because they are ‘excessive,

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redundant, or otherwise unnecessary.’”

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Mutual Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (quoting

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Hensley, 461 U.S. at 434).

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duty to reach its own “lodestar” value.

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433.

Id. at 1028 (citing

Quesada v. Thomason, 850 F.2d

As the Ninth Circuit has indicated, “a

Van Gerwen v. Guarantee

The Court is under an independent
Hensley, 461 U.S. at

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After computing the lodestar, the district court assesses

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whether additional considerations enumerated in Kerr v. Screen

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Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated on

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other grounds by City of Burlington v. Dague, 505 U.S. 557

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(1992), require the court to adjust the figure.

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at 1028.

Caudle, 224 F.3d

The factors laid out in Kerr, along with the
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substantially overlapping criteria enumerated in Local Rule 293,

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include: (1) the time and labor required; (2) the novelty and

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difficulty of the questions involved; (3) the skill requisite to

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perform the legal service properly; (4) the preclusion of other

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employment by the attorney due to acceptance of the case; (5) the

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customary fee; (6) whether the fee is fixed or contingent;

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(7) time limitations imposed by the client or the circumstances;

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(8) the amount involved and the results obtained; (9) the

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experience, reputation, and ability of the attorneys; (10) the

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“undesirability” of the case; (11) the nature and length of the

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professional relationship with the client; (12) awards in similar

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cases; and (13) such other matters as the Court may deem

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appropriate under the circumstances.

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Cal. L.R. 293(c).

Kerr, 526 F.2d at 70; E.D.

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III. DEFENDANT’S BILL OF COSTS
Keystone seeks payment of its costs in the amount of

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$9,759.73 by Early under Federal Rule of Civil Procedure 68.

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Def.’s Bill of Costs.

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defendant’s offer of judgment, and the judgment finally obtained

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by plaintiff is not more favorable than the offer, the plaintiff

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must pay the costs incurred subsequent to the offer.”

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Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006,

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1033 (9th Cir. 2013).

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“Under Rule 68, if a plaintiff rejects a

UMG

Here, there is evidence that Keystone made Early two offers

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to settle for $75,000.

The first, made on October 21, 2016, was

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inclusive of attorneys’ fees and costs.

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2, pp. 5–6.

2016 Offer, ECF No. 133-

As Early’s attorneys’ fees and costs at this point
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exceeded $25,000, this offer was not more favorable than her

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award at trial.

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346, 354 (1981) (“[Rule 68(d)] does not apply ... to judgments in

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favor of the plaintiff for an amount greater than the settlement

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offer.”).

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12, 2017, was exclusive of reasonable attorneys’ fees and costs.

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2017 Offer, ECF No. 133-2, pp. 10–11.

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causes of action alleged” in the Second Amended Complaint and was

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both clear and unconditional.

See Delta Air Lines, Inc. v. August, 450 U.S.

Keystone’s second offer for $75,000, made on September

This offer applied to “all

Id. at 10.

Thus, although Early

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prevailed at trial and received $50,000, her award was less than

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Keystone’s September 2017 Rule 68 offer of $75,000.

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Early must pay Keystone’s costs incurred after September 12,

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2017, in addition to her own, under Rule 68(d).

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Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1026 (9th Cir.

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2003) (“The award is mandatory; Rule 68 leaves no room for the

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court’s discretion.”).

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Accordingly,

See Champion

Early makes two arguments in opposition to Defendant’s Bill

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of Costs.

Pl.’s Obj. Def.’s Bill of Costs, ECF No. 136.

She

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first argues that Keystone’s offer did not qualify under Rule 68

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because it did not include an admission of liability.

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3.

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admit liability, so long as it is a valid offer of judgment.

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See, e.g., MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d

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1276, 1279 (9th Cir. 1999) (referencing a valid Rule 68 offer

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that stated: “This offer of judgment is made for the purposes

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specified in Rule 68, and is not to be construed either as an

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admission that the defendant is liable in this action or that the

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plaintiff has suffered any damage.”); Laxague v. Fireman’s Fund

Id. at 2–

This argument is fatally flawed, as a Rule 68 offer need not

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Ins. Co., 269 Cal. Rptr. 456, 459 (Ct. App. 1990)

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(“Significantly, no judicial determination of liability is

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necessary to effectuate a settlement under [R]ule 68.”).

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Second, Early argues that Rule 68 does not apply because she

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was not successful on any of her federal claims.

Pl.’s Obj.

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Def.’s Bill of Costs at 3–4.

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Inc. v. AT&T Co., 197 F.3d 1276 (9th Cir. 1999), in support of

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this argument.

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because the defendant in that case was the prevailing party on

She cites to MRO Communications,

The case is, however, inapposite to her argument

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all claims, both state and federal.

See id. at 1279 (“On July

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30, 1998, the district court entered a final judgment for AT & T

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on all of MRO’s claims.”).

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factually analogous case in support of her argument that Rule 68

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does not apply because the jury found for Keystone on the federal

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law claims.

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offer of judgment.

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CV1109068MMMPJWX, 2013 WL 12125738, at *6 (C.D. Cal. May 28,

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2013) (citing to Shady Grove Orthopedic Associates, P.A. v.

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Allstate Ins. Co., 559 U.S. 393 (2010) for the principle that

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Rule 68 governs cost recovery of California law claims in federal

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court); MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983

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LITIGATION STATUTORY ATTORNEY’S FEES § 8.04(4th ed. 2019-1

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Supp.).

Early does not produce a single

The Court finds that Rule 68 governs Keystone’s
See Day v. Sears Holdings Corp., No.

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Although the jury did not find for Early on her Title VII

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claims, the jury found in her favor on two FEHA claims and the

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Court granted her summary judgment on a third FEHA claim.

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succeeded on a “significant issue in litigation” and “achieve[d]

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some of the benefit [she] sought in bringing the suit.”
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Early

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Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 70 (9th

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Cir. 1996).

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in Early’s favor.

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Early declined a more favorable Rule 68 offer in September 2017,

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the Court must award post-offer costs to Keystone.

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The jury verdict changed the parties’ relationship
Id. at 71.

Early is the prevailing party.

As

Many of the costs for which Keystone seeks reimbursement

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were incurred prior to the September 12, 2017 Rule 68 offer.

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Def.’s Bill of Costs at 3.

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transcript fees prior to this date, and thus these are not

Keystone incurred all of the

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recoverable.

Keystone also incurred its witness fees after

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making the September 12, 2017 offer, and accordingly may recover

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for those costs.

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Date

Reason

Amount

5/31/2018

Witness fee for trial witness Sherry

$262.88

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Clark

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9/05/2018–

Lodging during trial for trial

9/06/2018

witness Sherry Clark

9/04/2018–

Air travel to and from trial for

9/07/2018

trial witness Denise Lee

09/04/2018–

Lodging during trial for trial

9/07/2018

witness Denise Lee
Total Post-Offer Costs

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$249.92

$560.95

$1,008.61

$2,082.36

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The Court awards Keystone $2,082.36 in post-offer costs.

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IV.

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PLAINTIFF’S BILL OF COSTS

Early seeks costs from Keystone in the amount of $8,027.54

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as the prevailing party.

Pl.’s Bill of Costs.

Federal Rule of

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Civil Procedure 54(d) creates “a presumption in favor of awarding

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costs to a prevailing party, but vests in the district court

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discretion to refuse to award costs.”

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Educators v. State of California, 231 F.3d 572, 591 (9th Cir.

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2000) (en banc).

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truncates the costs Early may otherwise recover under Rule 54(d),

Ass’n of Mexican-Am.

Although Keystone’s September 2017 offer

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Rule 68 does not prevent Early’s recovery of her pre-September

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12, 2017 offer costs.

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273, 281 (2d Cir. 2014) (“[E]very Circuit to have confronted this

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question appears to have reached the same conclusion: Rule 68

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reverses Rule 54(d) and requires a prevailing plaintiff to pay a

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defendant’s post-offer costs if the plaintiff’s judgment is less

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favorable than the unaccepted offer.”); Champion Produce, Inc. v.

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Ruby Robinson Co., 342 F.3d 1016, 1024 (9th Cir. 2003) (“The Rule

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is not designed to affect the plaintiff’s recovery of pre-offer

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costs.”).

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following chart:

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See Stanczyk v. City of New York, 752 F.3d

Early’s recoverable charts are detailed in the

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Date

Reason

Amount

6/16/2016

Service of Summons on Keystone

$79.75

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Restaurant Group, LLC
3/16/2017

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6

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3/24/2017

Service of Subpoena on Sherry Clark

$93.90

4/17/2017

Service of Subpoena on Diem Nguyen

$70.00

Smith
5/03/2017

5/18/2017

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$227.00

Service of Subpoena on Diem Nguyen

$245.00

Smith
5/18/2017

Service of Subpoena on Diem Nguyen

$70.00

Smith

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Service of Subpoena on Diem Nguyen
Smith

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$285.00

4/01/2017

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Service of Subpoena on Sirenio
Gonzalez

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$70.00

Gonzalez

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Service of Subpoena on Sirenio

4/25/2017

Deposition of Sirenio Gonzalez

$668.15

5/03/2017

Deposition of Sherry Clark

$932.15

5/16/2017

Deposition of Diem Nguyen-Smith

$440.85

5/22/2017

Deposition of Denise Lee

$916.55

7/05/2017

Deposition of Diem Nguyen-Smith

$977.75

8/22/2017

Deposition of Sarah Early

$1,100.55
$6,176.65

Total Pre-Offer Costs

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In its review of Early’s exhibits, the Court found several

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instances where the receipts displayed higher total prices than

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those listed in Early’s counsel’s declaration.

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inconsistences, the Court awarded the lower amount listed in
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To resolve those

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Early’s counsel’s sworn declaration.

The Court awards Early

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$6,176.65 for costs sought as the prevailing party.

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V.

PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

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A.

Rule 68 Does Not Limit Early’s Attorneys’ Fees

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Rule 68 requires the Court to look at whether the underlying

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statute provides attorneys’ fees to the prevailing party as

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costs.

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most reasonable inference is that the term ‘costs’ in Rule 68 was

Marek v. Chesny, 473 U.S. 1, 9 (1985) (holding that “the

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intended to refer to all costs properly awardable under the

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relevant substantive statute or other authority.”).

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Court finds that the relevant statute is the one that conferred

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Early’s prevailing party status: FEHA.

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Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1028 (9th Cir. 2003)

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(“Marek’s construction of Rule 68 applies not only to federal

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fee-granting statutes but also to state fee-granting statutes”).

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The relevant section of FEHA provides, in part:

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Here, the

See Champion Produce,

In civil actions brought under this section, the
court, in its discretion, may award to the prevailing
party, including the department, reasonable attorney’s
fees and costs, including expert witness fees, except
that, notwithstanding Section 998 of the Code of Civil
Procedure, a prevailing defendant shall not be awarded
fees and costs unless the court finds the action was
frivolous, unreasonable, or groundless when brought,
or the plaintiff continued to litigate after it
clearly became so.

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Cal. Gov’t Code § 12965(b).

Cf. Laxague v. Fireman’s Fund Ins.

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Co., 269 Cal. Rptr. 456, 459 (Ct. App. 1990) (“Both the procedure

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and purpose of [Rule 68] are strikingly similar to California

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Code of Civil Procedure section 998.”).

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considered the applicability of Rule 68 to Section 12965(b) in
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The Ninth Circuit has

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dicta, stating that “Section 12965(b) clearly provides attorney’s

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fees separately from costs.”

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App’x 795, 796 (9th Cir. 2002) (unpublished).

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does not include attorneys’ fees as costs, the Court determines

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that Early’s rejection of the September 2017 Rule 68 offer does

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not bar her from collecting post-offer attorneys’ fees.

Hasan v. Contra Costa Cty., 45 F.
Finding that FEHA

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B.

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Under both California and federal law, the determination of

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Calculation of Early’s Attorneys’ Fees

whether Early’s attorneys’ fees are reasonable begins with a

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determination of the lodestar: the reasonable hourly rates

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multiplied by the number of hours reasonably spent.

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Hensley, 461 U.S. at 433; Taylor v. Nabors Drilling USA, LP, 166

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Cal. Rptr. 3d 676, 693 (Ct. App. 2014).

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See, e.g.,

In the instant case, Early argues the total lodestar claimed

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for work on the merits is $394,073.50, based on 510.70 hours by

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Jocelyn Burton at $530 per hour, 481.10 hours by Scott Nakama at

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$250 per hour, 31.6 hours by Helen O’Keefe at $100 per hour, and

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17.3 hours by Kirtecia Griggs at $100 per hour.

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ECF No. 139-1, p. 4.

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enhancement.

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request on multiple grounds.

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1.

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See id.

Burton Decl.,

Early’s counsel does not seek a lodestar
Keystone’s counsel objects to Early’s fee
See Fee Opp’n.2

Hours Reasonably Expended

In determining the lodestar, the Court first must determine

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Keystone moves to strike a declaration by Early’s counsel in
support of her reply brief. Def. Obj., ECF No. 156. The Court
denies Keystone’s request. Early’s counsel’s declaration is
submitted in response to Keystone’s Rule 68 arguments. It also
demonstrates a fact that is readily apparent, i.e., that
attorneys’ fees clearly exceeded $25,000 by the time the 2016
Rule 68 offer was made.
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2

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whether the requested number of hours is greater than, less than,

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or the same number of hours that reasonably competent counsel

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would have billed.

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performed by attorneys and 48.9 hours for services performed by

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paralegals.

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Early’s counsel has (1) billed for motions never filed,

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(2) failed to provide adequate detail of the tasks performed,

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(3) billed Keystone for work performed in relation to Early’s

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claims against dismissed parties, and (4) overbilled for

Early requests 991.8 hours for services

Keystone objects to these totals, arguing that

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activities where only one attorney was necessary.

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15.

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Opp’n at 12–

First, as to Keystone’s objection that Early billed for

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pleadings never filed, Early’s reply proves informative.

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ECF No. 153, pp. 7–8.

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Early’s January 2017 motion to compel Defendants’ disclosures and

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the March 2018 billing for trial equipment training.

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reply fails to explain, however, why Nakama billed 32 hours of

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discovery tasks between June 1, 2016 and September 12, 2016.

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Based on the provided facts, this amount of time is excessive.

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The Court reduces Nakama’s hours by 20 hours to account for this

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excess.

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Reply,

The reply provides clarity regarding

Id.

The

Second, with respect to Keystone’s objection that Early’s

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counsel failed to provide adequate detail of the tasks performed,

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the Court agrees with Keystone that Early’s counsel could have

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provided more detailed descriptions of billed tasks, which would

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have significantly aided the Court in considering this Motion.

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Nevertheless, the entries provide minimally sufficient

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information upon which the Court can gauge whether billed entries
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are reasonable.

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this argument.

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The Court will not reduce fees simply based on

Third, as to Keystone’s objection to time billed for work

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performed opposing motions filed by other dismissed parties, the

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Court agrees that Early should not have included hours billed

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for time spent opposing the Sonic Defendant’s Motion to Dismiss

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and Motion for Summary Judgment, as the Sonic Defendants were the

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prevailing party in Early’s claims against them.

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the Court deducts the 38 hours that Nakama spent and 2.9 hours

Accordingly,

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Burton spent on Early’s August 9, 2016 opposition to the Motion

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to Dismiss.

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Early’s reply to her Motion for Summary judgment by half, as

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about half of the reply concerned the Sonic Defendants.

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Burton billed 25.1 hours on the reply, the Court reduces this

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number by 12.55 hours.

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The Court also reduces the hours Burton spent on

As

Fourth, the Court does not find it improper that Early had

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two attorneys present at certain case activities. Co-counsel

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Nakama attended the mediation, settlement-related activities, and

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trial with Burton, and absent any evidence that his presence was

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excessive, redundant, other otherwise unnecessary, Keystone’s

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argument fails.

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sit silently observing throughout the entire trial.

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Transcript, ECF Nos. 137–137-5.

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statements that the time Nakama spent attending activities was

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unreasonable is not particularly helpful to the Court.

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Nevertheless, the Court does find that Keystone correctly notes

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that Nakama did not need to spend 19.5 hours reviewing the

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transcripts of a trial he attended, and will deduct that time.

As the trial transcript shows, Nakama did not
See Trial

Keystone’s generalized

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Applying these deductions, the Court finds that 495.25 hours

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are appropriate for Burton, 403.6 hours are appropriate for

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Nakama, 31.6 hours are appropriate for O’Keefe, and 17.3 hours

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are appropriate for Griggs.

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that reasonably competent counsel would have billed in this case.

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7

2.

These hours amount to the total time

Reasonable Hourly Rate

The Court now turns to determining a reasonable hourly rate.

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Cases direct the Court to compare the requested rates with the

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“prevailing market rate,” which is the rate “prevailing in the

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community for similar services of lawyers with reasonably

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comparable skill, experience, and reputation.”

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465 U.S. 886, 896 n.11 (1984).

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is the rate prevailing in the Eastern District of California.

Blum v. Stenson,

The relevant market in this case

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Burton graduated from University of Chicago Law School in

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1988 and has been practicing law in California for over thirty

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years.

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Lawyer for Northern California in the area of Labor and

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Employment Law since 2012.

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requested hourly rate of $530 per hour to be well within the

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acceptable range for an attorney with Burton’s experience.

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Z.F. by & through M.A.F. J.F. v. Ripon Unified Sch. Dist. (RUSD),

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No. 210CV00523TLNCKD, 2017 WL 1064679, at *3 (E.D. Cal. Mar. 21,

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2017) (“Prevailing hourly rates in the Eastern District of

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California are in the $350–$550/hour range for experienced

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attorneys with over 15 years of experience in civil rights and

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class action litigation.”).

Burton Decl. at 2.

She has been designated as a Super

Id.

The Court finds Burton’s

See

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Nakama graduated from Case Western Reserve University School

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of Law and has been admitted to practice in California since June
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1

2014.

Burton Decl. at 3.

During the time that Nakama worked on

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this case, he had one to four years of experience.

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Accordingly, the Court finds the appropriate rate for an employee

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with Nakama’s experience in the Eastern District of California is

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$175/hour, rather than the $250/hour requested by Early.

6

re Taco Bell Wage & Hour Actions, 222 F. Supp. 3d 813, 845 (E.D.

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Cal. 2016) (awarding an attorney with less than two years of

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experience the rate of $125 per hour); Deocampo v. Potts, No. CV

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2:06-1283 WBS CMK, 2017 WL 363142, at *4 (E.D. Cal. Jan. 24,

See id.

See In

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2017) (“[C]ourts in this district have found that an hourly rate

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between $250 and $280 is reasonable for attorneys with ten or

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more years of experience in civil rights cases”).

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O’Keefe has worked as a paralegal with Burton Employment Law

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since 2015.

Burton Decl. at 3.

Griggs worked as a paralegal

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with the firm from November 2015 to April 2017.

16

information was provided regarding the years of experience that

17

O’Keefe and Griggs have as paralegals.

18

the two paralegals—$100 per hour—are within the acceptable range

19

for this district.

20

1600-SAB, 2018 WL 2388805, at *3 (E.D. Cal. May 25, 2018) (“In

21

this division, the reasonable rate of compensation for a

22

paralegal would be between $75.00 to $150.00 per hour depending

23

on experience.”). The Court’s calculation of the reasonable

24

amount of Early’s attorneys’ fees is set forth in the following

25

chart:

26

///

27

///

28

///

Id.

No

The rates requested for

Moreno v. Comm’r of Soc. Sec., No. 1:16-CV-

15

1
Person

Billed
Hours

Deducted
Hours

Hourly
Rate

Lodestar

3

Burton

510.7

15.45

$530

$262,482.50

4

Nakama

481.1

77.5

$175

$70,630.00

5

O'Keefe

31.6

0

$100

$3,160.00

6

Griggs

17.3

0

$100

$1,730.00

2

7
8
9

Total $338,002.50
3.

The Kerr Factors and Local Rule 293(c)

Finally, the Court considers whether circumstances justify

10

deviating from the lodestar.

11

Although there is a “strong presumption” that a lodestar

12

calculation is sufficient compensation, “that presumption may be

13

overcome in those rare circumstances in which the lodestar does

14

not adequately take into account a factor that may properly be

15

considered in determining a reasonable fee.”

16

ex rel. Winn, 559 U.S. 542, 553–54 (2010).

17

See Quesada, 850 F.2d at 539.

Perdue v. Kenny A.

None of the first seven Kerr factors weigh in favor of

18

adjusting the lodestar.

19

time and labor above, and does not find that this case presented

20

any more novelty or difficulty than any other ordinary employment

21

discrimination lawsuit.

22

to perform the services rendered and this case was no more or

23

less time consuming or preclusive of other employment

24

opportunities than a standard case.

25

that the nature of the fee here warrants an upward or downward

26

departure.

27

The Court calculated the appropriate

An average amount of skill was required

The Court does not believe

The eighth Kerr factor is of particular relevance in a case

28
16

1

like this, where the plaintiff achieved partial success.

Here,

2

Early prevailed on three of her original nine claims, securing an

3

award of $50,000 from the jury.

4

and the results obtained,” Kerr, 526 F.2d at 70; E.D. Cal. L.R.

5

293(c), Early achieved limited success.

6

however, find that a reduction of fees on this basis is

7

warranted. There is a need to encourage suits effectuating a

8

strong public policy.

9

claims were factually related and closely intertwined.

Considering “the amount involved

The Court does not,

Furthermore, Early’s state and federal
While the

10

jury verdict reflects the fact that Early’s counsel seems to have

11

overvalued this case—i.e., the evidence regarding Early’s damages

12

did not support the $200,000 award requested by counsel at trial—

13

this does not lead the Court to conclude that attorneys’ fees

14

should be reduced given Early’s success on the issue of

15

liability.

16

The remaining factors do not provide any additional cause to

17

adjust the lodestar.

18

above, on counsel’s experience and ability.

19

more undesirable than the typical employment discrimination case.

20

No information was provided that Early’s counsel had any more

21

than an ordinary professional relationship with their client.

22

Finally, the award here was in line with the amount of damages

23

that Early demonstrated, no higher or lower than similar cases.

24
25

The Court based Early’s counsel’s rates,
This case was no

Accordingly, the Court awards Early $338,002.50 in
attorneys’ fees.

26

C.

27

With her Motion for Attorneys’ Fees, Early also requests

28

Additional Request for Nontaxable Costs

costs in the amount of $11,488,78.
17

Mot. at 8.

It appears that

1

this amount is in addition to the $8,027.54 claimed in her Bill

2

of Costs.

3

these costs, arguing that the motion does not (1) explain the

4

$3,460.24 increase from her timely filed Bill of Costs,

5

(2) attach invoices for the additional costs, or (3) address why

6

costs should be considered beyond the 14-day deadline imposed by

7

Local Rule 292.

8

her reply, Early contends that she may seek costs under

9

Government Code § 12965(b) and that her request was timely under

10
11

See Pl. Bill of Costs, ECF No. 134.

Local Rule 293.

Keystone opposes

Opp’n at 20; see also E.D. Cal. L.R. 292.

In

Reply, ECF No. 153, p. 8.

Local Rule 292 addresses taxable costs and specifies that a

12

bill of costs must be filed within 14 days of the entry of

13

judgment.

14

awards of attorneys’ fees and specifies that motions for awards

15

of attorneys’ fees to prevailing parties shall not be filed later

16

than 28 days after entry of final judgment.

17

293(a).

18

for attorney’s fees and related nontaxable expenses,” Fed. R.

19

Civ. P. 54(d)(2)(A) (emphasis added), the Court finds that

20

Early’s request for nontaxable costs to be timely under Rule 293.

21

E.D. Cal. L.R. 292(b).

Local Rule 293 addresses

E.D. Cal. L.R.

As Federal Rule of Civil Procedure 54(d) allows a “claim

District courts have the discretion to award nontaxable

22

costs where the underlying statute awards “reasonable attorney’s

23

fees” to the prevailing party.

24

Calif., 606 F.3d 577, 580 (9th Cir. 2010)).

25

for a prevailing party to recover “reasonable attorney’s fees and

26

costs, including expert witness fees,” Cal. Gov’t Code

27

§ 12965(b), the Court has discretion to award Early nontaxable

28

costs.

Grove v. Wells Fargo Financial

18

Since FEHA allows

1

Finally,

as to the issue of whether Early’s nontaxable

2

costs were reasonable, “[a] party seeking to recover costs and

3

expenses need not document its request with ‘page-by-page

4

precision, [however] a bill of costs must represent a calculation

5

that is reasonably accurate under the circumstances.’”

6

Tech., Inc. v. Sidense Corp., 82 F. Supp. 3d 1154, 1174 (N.D.

7

Cal. 2015) (quoting Summit Tech., Inc. v. Nidek Co., 435 F.3d

8

1371, 1380 (Fed. Cir. 2006)).

9

submit sufficient information that allows the Court to ascertain

Kilopass

Early’s counsel has failed to

10

the reasonableness and accuracy of the claimed costs.

For

11

example, the chart in which Early’s counsel lists their billed

12

hours also lists $19,516.32 in expenses.

13

2–54 (listing $16,418.76 in expenses for Burton, $29.85 for

14

Griggs, $2,875.46 for Nakama, $158.09 for O’Keefe, $31.54 for

15

someone named Monique Ramirez, and $2.62 for someone named Leigh

16

Miles).

17

blank, listing only a date and price with no information about

18

what cost to which the entry relates.

19

receipts were provided to substantiate these nontaxable costs,

20

even though some individual entries total thousands of dollars.

21

The only guidance the Court has regarding these costs is a table

22

in which Burton lists a summary of costs for different

23

categories, without details such as the date incurred.

24

Burton Decl. at 4–5 (listing “Postage: 66.03; Federal Express:

25

200.24; Document retrieval: 34.68; Mediators: $3,000.00; Out of

26

town travel: 4,650.92; Trial Transcripts: 2,500.00; Local Travel:

27

196.96; Stake out fees for subpoenas: 193.18; Electronic

28

Depositions: 647.71; Total: $11,488.78).

Burton Decl., Ex. A, at

Also, several of these cost descriptions are completely

19

See id.

No invoices or

See

The Court declines to

1

award nontaxable costs over $10,000 without even a single receipt

2

or billing invoice.

3

CV103615GAFAJWX, 2011 WL 12877031, at *3 (C.D. Cal. July 18,

4

2011) (awarding $451.05 in nontaxable costs after “reviewing the

5

billing invoices”).

Cf. Wild v. NBC Universal, No.

6

The billing entries list does, however, provide verifiable

7

tracking numbers for Federal Express costs and the Court finds

8

these costs to be actually and reasonably incurred.

9

the Court awards Early $200.24 for these nontaxable costs.

Accordingly,

10
11

V.

12

CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART

13

AND DENIES IN PART Early’s Motion for attorneys’ fees.

14

139.

15

in attorneys’ fees for litigation and trial and (2) $200.24 in

16

nontaxable expenses under Federal Rule of Civil Procedure

17

54(d)(2)(A), for a total of $338,202.74.

18

GRANTS IN PART AND DENIES IN PART Keystone’s Bill of Costs and

19

GRANTS Keystone $2,082.36 in post-September 12, 2017 Rule 68

20

offer taxable costs, ECF No. 133.

21

PART AND DENIES IN PART Early’s Bill of Costs and GRANTS Early

22

$6,176.65 in pre-September 12, 2017 Rule 68 offer taxable costs,

23

ECF No. 134.

24
25

ECF No.

The Court AWARDS Plaintiff the following: (1) $338,002.50

IT IS SO ORDERED.
Dated: February 22, 2019

26
27
28
20

Additionally, the Court

Finally, the Court GRANTS IN