Alvarado et al v. Fedex Corporation

Filing 1794

ORDER GRANTING IN PART AND DENYING IN PART KAY McKENZIE PARKER AND ROSEN, BIEN & GALVAN'S MOTION TO ALTER OR AMEND (Illston, Susan) (Filed on 12/19/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDWARD ALVARADO, et al.,

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Plaintiffs,

ORDER GRANTING IN PART AND
DENYING IN PART KAY McKENZIE
PARKER AND ROSEN, BIEN &
GALVAN’S MOTION TO ALTER OR
AMEND

v.

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United States District Court
For the Northern District of California

No. C 04-0098 SI, No. C 04-0099 SI

FEDERAL EXPRESS CORPORATION,

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Defendant.

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On December 16, 2011, the Court held a hearing on the motion filed by Kay McKenzie Parker

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and Rosen, Bien & Galvan to alter or amend the Court’s September 30, 2011 order. The Court corrects

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the error in the September 30, 2011 order with respect to double counting a 40% deduction for certain

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deposition time, and amends that order to award an additional $31,635 to Ms. Parker’s merits lodestar,

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for a total merits award of $406,774.80. The addition to the merits lodestar requires an adjustment of

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RBG’s fees-on-fees award, as that award was based upon a percentage formula. With the adjustment

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made in this order, Ms. Parker’s merits recovery is 28.5% of the amount she originally sought in her fee

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petition ($1,425,769.50 not including a multiplier). Accordingly, the Court awards RBG $376,916.24,

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which is 28.5% of the total fees-on-fees amount originally sought before the Special Master and this

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Court ($1,322,513.11).

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The Court DENIES the balance of the motion to amend. With regard to the claimed travel time

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and Ms. Parker’s 200 hours for fees-on-fees time disallowed by the Special Master, the Court finds this

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time is not recoverable for the reasons stated in the September 30, 2011 order and the Special Master’s

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report and recommendation. Ms. Parker’s motion to amend also seeks $48,731 in costs that the Court

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previously disallowed with respect to Ms. Parker’s quantum meruit award from the settlement plaintiffs.

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The Ninth Circuit reversed that portion of the Court’s order, holding that Ms. Parker was entitled to

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recover these costs from the settlement plaintiffs. Ms. Parker’s motion to amend now seeks these costs

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from FedEx, despite the fact that Ms. Parker did not seek these costs from FedEx in her statutory fee

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petition. The Court finds that it is procedurally improper for Ms. Parker to seek these costs from FedEx

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in a motion to amend when Ms. Parker did not seek them in the first instance in her statutory fee

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petition. Moreover, Ms. Parker’s motion does not identify what these costs are, nor does Ms. Parker

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attempt to apportion the costs between the settlement plaintiffs and Mr. Alvarado and Ms. Boswell. If

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Ms. Parker wished to seek these costs from FedEx, Ms. Parker should have sought them in her statutory

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fee petition, and she should have submitted documentation in support of the claimed costs.

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United States District Court
For the Northern District of California

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Accordingly, the motion to alter or amend the September 30, 2011 order is GRANTED in part
and DENIED in part. This order resolves Docket Nos. 1762 and 1778.

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IT IS SO ORDERED.

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Dated: December 19, 2011
SUSAN ILLSTON
United States District Judge

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