Carter v. Caleb Brett LLC et al

Filing 52

ORDER by Judge Richard Seeborg granting 50 Motion for Attorney Fees; granting 51 Motion for Attorney Fees. (cl, COURT STAFF) (Filed on 4/28/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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RICK O. CARTER,

No. C 11-1472 RS
ORDER AFTER REMAND
GRANTING MOTION FOR
ATTORNEY FEES

Petitioner,

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v.

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CALEB BRETT, LLC., et al.,

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Respondents.
____________________________________/

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Petitioner Rick O. Carter brought this proceeding pursuant to § 918(a) of the Longshore and

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Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (“the Longshore Act”), which was

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explicitly designed to provide “a quick and inexpensive mechanism for the prompt enforcement of

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unpaid compensation awards.” Providence Wash. Ins. Co. v. Director, Office of Workers’ Comp.

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Programs, 765 F.2d 1381, 1384-85 (9th Cir. 1985). Carter successfully obtained a judgment in the

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amount of $3,220.20, the full amount of his claim, representing reimbursement for expenses he

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incurred in obtaining chiropractic treatment for injuries suffered while employed by respondent

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Caleb Brett, LLC.1 Carter thereafter filed a motion seeking to recover $22,585.00 in attorney fees

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and $268.50 in costs he incurred in this matter.

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The judgment has been satisfied.

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No. C 11-1472 RS
ORDER

Although the motion was granted, the fees were limited to $14,000, together with

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uncontested costs of $268.50, for a total award of $14,268.50. As explained in the order, the

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extreme disparity between the amount in controversy and the fees expended in pursuit of recovery

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was troubling. That imbalance was the primary reason for finding it unreasonable to shift

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responsibility for paying a greater percentage of the fees actually incurred.
On appeal, the Ninth Circuit concluded that in light of the substantial reduction in the fee

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award from the amount claimed, a more fulsome explanation of the basis of decision was mandated.

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While the appellate court did not foreclose the possibility that the amount awarded on remand would

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not increase, it also questioned other aspects of the decision—such as the use of a “blended rate.”
On remand, the parties were invited to submit further briefing as to the issues remaining to

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For the Northern District of California

United States District Court

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be decided, both as to the original fee motion and as to a motion for supplemental fees filed prior to

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the appeal.2 Plaintiff submitted such a brief, and also filed a second supplemental fee motion,

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seeking recovery of an additional $1490 for post-remand work. Presumably out of a desire not to

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perpetuate the fees-on-fees cycle endlessly, defendant elected not to submit any additional briefing.
Plaintiff correctly observes that, by applying a “blended rate” the prior order effectively

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found that the rates charged by his counsel were reasonable in the relevant geographic market, and

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rejected defendant’s arguments to the contrary. Although the prior order applied a blended rate for

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ease of calculation,3 the underlying conclusion of reasonableness of the claimed rates is reaffirmed

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here.
The prior order limited the number of hours for which fees would be awarded to 35 in total.

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As noted, the conclusion that 35 hours represented a reasonable number of hours predominately

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reflected a judgment that it was not appropriate to spend over $20,000 in the pursuit of a claim for

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The supplemental motion claimed an additional $2,200 incurred after the filing of the original fee
motion.

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The Ninth Circuit pointed out that in view of a significant difference in the number of hours
incurred by different timekeepers, using a blended rate potentially distorted the analysis. Although
that difference worked in plaintiff’s favor to offset some of the disallowed hours, this order will
instead use the actual billing rates.

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No. C 11-1472 RS
ORDER

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slightly over $3000. The Ninth Circuit decision here observed that evaluating a fee motion requires

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“considering some or all of twelve relevant criteria set forth in Kerr v. Screen Extras Guild, Inc.,

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526 F.2d 67 (9th Cir. 1975).” Carter v. Caleb Brett LLC, 757 F.3d 866, 868-69 (9th Cir. 2014)

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(quoting Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir.1988)). The amount in controversy is

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one of the relevant considerations under the Kerr factors. See Quesada, 850 F.2d at 539 n. 1.

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Although the Ninth Circuit indicated that the amount of the original fee award in this case

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theoretically might be justifiable with further explication, the effect of its opinion is that the amount

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of the reduction imposed is no longer supportable through such heavy reliance on the amount in

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controversy. Indeed, as the original order noted, and the Ninth Circuit echoed, plaintiff did not bear
primary responsibility for the fact that this matter became considerably more protracted than the

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For the Northern District of California

United States District Court

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“quick and inexpensive mechanism” envisioned by the statute. Thus, while it remains somewhat

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troubling that such large sums were expended when the stakes were so small, it must also be

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acknowledged that a plaintiff should not automatically be forced to abandon a claim merely because

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the process of recovery becomes protracted for reasons largely beyond his or her control.

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Additionally, at least in some circumstances, the value of principle and precedent may warrant

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recovery expenditures in substantial excess of the amount in controversy.

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Other Kerr factors, such as the time and labor required, and the results obtained, largely

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support the amount of the fees claimed, and no factor weighs strongly against the claim other than

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the small amount at stake. Review of plaintiff’s billing records reveal timekeeping practices that

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generally were reasonable. While defendant has challenged the billing rates, it has not identified

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instances of unreasonable time expenditures, other than arguing that post-judgment work should not

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be compensable, and raising a question regarding one of the attorneys who consulted in the matter.

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Neither of those criticisms is persuasive.

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That said, plaintiff acknowledges that courts are vested with discretion to impose a “haircut”

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on fee claims of up to 10 percent, even without specific explanation. Here, the remaining concern

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about the amount in controversy is more than a sufficient basis on which to base such a reduction.

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Plaintiff’s fee applications total $26,275 ($22,585 + $2200 + $1490). Fees will be awarded in 90%

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No. C 11-1472 RS
ORDER

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of that amount, $23,647.50, together with the uncontested costs of $268.50, for a total award of

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$23,916.

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Although this order provides plaintiff with nearly all the relief he sought, it should not be

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taken as any kind of endorsement of the protracted litigation and subsequent fee battle that took

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place here. Regardless of the degree to which either or both parties are to blame, there can be no

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real justification for the amount of public and private resources that have been devoted to resolving

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what was approximately a $3000 dollar dispute. In the event this order does not finally resolve the

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matter, the parties should bear that in mind before incurring yet more fees on fees, or seeking

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recovery thereof.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.
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Dated: April 28, 2015
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RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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No. C 11-1472 RS
ORDER