Virtusio v. Financial Industry Regulatory Authority, Inc.,

Filing 77

ORDER RE: TENTATIVE RULING AND SETTING HEARING ON FINRA'S MOTION FOR ATTORNEYS' FEES 52 AND VIRTUSIO'S MOTION TO STRIKE BILL OF COSTS 66 , Motions terminated: 75 . Signed by Judge Nathanael M. Cousins on 7/5/2013. (nclc2, COURT STAFF) (Filed on 7/5/2013)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 NELIA VIRTUSIO,

Case No. 12-cv-00602 NC

12

ORDER RE: TENTATIVE RULING
AND SETTING HEARING ON
FINRA’S MOTION FOR
ATTORNEYS’ FEES AND
VIRTUSIO’S MOTION TO STRIKE
BILL OF COSTS

13

Plaintiff,
v.

14 FINANCIAL INDUSTRY
15
16

REGULATORY AUTHORITY, INC.,
Defendant.

Re: Dkt. Nos. 52, 66

17
18

Pending before the Court are FINRA’s motion for attorneys’ fees, Dkt. No. 52, and

19 Virtusio’s motion to strike FINRA’s bill of costs, Dkt. No. 66. After the Court vacated the
20 hearing on FINRA’s motion for attorneys’ fees, Dkt. No. 73, Virtusio requested leave to file
21 an objection to the declaration from Nick Geannacopulos submitted in support of FINRA’s
22 reply on the motion for attorneys’ fees. Dkt. Nos. 70-1, 75. The Court hereby reschedules
23 the hearings on both FINRA’s motion for attorneys’ fees and Virtusio’s motion to strike
24 costs, originally scheduled for June 26, 2013 and July 17, 2013 respectively, for July 24,
25 2013 at 1:00 p.m. in Courtroom A, 15th Floor, U.S. District Court, 450 Golden Gate
26 Avenue, San Francisco, California.
27

Based on the arguments presented by both parties, the Court is inclined to award

28 FINRA its reasonable attorneys’ fees under California Labor Code § 218.5 (providing for
Case No. 12-cv-00602 NC
ORDER RE: TENTATIVE RULING AND
SETTING HEARING

1 the recovery of reasonable attorneys’ fees and costs in “action brought for the nonpayment
2 of wages, fringe benefits, or health and welfare or pension fund contributions”). Here, the
3 first cause of action for breach of contract and the fourth cause of action for failure to pay
4 wages appear to be actions “brought for the nonpayment of wages,” and, in any event, the
5 degree of overlap between those causes of action appears to be such that apportionment of
6 fees is not feasible. See Kirby v. Immoos Fire Protection, Inc., 53 Cal. 4th 1244, 1255-56
7 (2012) (holding that “[t]he words ‘nonpayment of wages’ in section 218.5 refer to an
8 alleged legal violation, not a desired remedy” and inquiring as to whether the nonpayment
9 of wages is “the gravamen” of the claim); Aleman v. AirTouch Cellular, 209 Cal. App. 4th
10 556, 584 (2012) (directing the trial court to determine the amount of reasonable attorneys’
11 fees awardable for defense of the § 218.5 causes of action, apportioning fees incurred for
12 the separate causes of action as appropriate). In this case, while there are common issues
13 between all of the claims, the Court is not convinced that FINRA is entitled to all of its
14 attorneys’ fees incurred in defense of the causes of action for bad faith and intentional
15 infliction of emotional distress.
16

At the July 24, 2013 hearing, the parties should be prepared to address (1) whether

17 under California Labor Code § 218.5 it is appropriate for the Court to award fees for
18 defense of all of Virtusio’s claims, including those for bad faith and intentional infliction of
19 emotional distress; and (2) how the Court should apportion the fees requested.
20

Additionally, the “Lodestar Chart” FINRA has submitted in support of its request for

21 attorneys’ fees does not provide the Court with sufficient information to determine the
22 reasonable attorneys’ fees expended in defense of the causes of action brought for the
23 nonpayment of wages. See e.g., The Traditional Cat Ass’n, Inc. v. Gilbreath, 340 F.3d 829,
24 834 (9th Cir. 2003) (holding that, to apportion fees, a court may be required to supplement
25 the record due to inadequate documentation); see also Drumm v. Morningstar, Inc., 695 F.
26 Supp. 2d 1014, 1022 n.7 (N.D. Cal. 2010) (requiring a party moving for attorneys’ fees
27 under § 218.5 to submit additional documentation to distinguish work done in support of the
28 unpaid wage claim).
Case No. 12-cv-00602 NC
ORDER RE: TENTATIVE RULING
AND SETTING HEARING

2

1

Moreover, th declaratio submitt by FINR in suppo of its mo
M
he
ons
ted
RA
ort
otion for

ys’
t.
1,
n
tely
be
nce
2 attorney fees, Dkt Nos. 52-1 70-1, do not adequat describ the level of experien
s
er
o
e
RA
3 (such as the numbe of years of practice) of all of the attorneys for whose work FINR
clarations state in a conclusory m
s
manner that “ rates c
“the
charged in th
his
4 seeks fees. The dec
n
r
San
sco
s
el
5 case are well within the range of hourly rates in the S Francis markets for counse with
erience and litigation sk posses
kills
ssed by FIN
NRA’s defen team.” Dkt. Nos. 52-1 ¶
nse
6 the expe
1
NRA, howev does no specify th range of the applica prevaili
ver,
ot
he
able
ing
7 19; 70-1 ¶ 19. FIN
r
milar
es
eys
xperience co
omparable t that of ea
to
ach
8 market rate for sim service by attorne with ex
y
s
ded
RA’s motion See Gar v. Resurgent Capit
n.
rcia
tal
9 attorney whose fees are includ in FINR
s,
3
12
2
.
2012)
10 Services L.P., No. 11-cv-1253 EMC, 201 WL 3778852, at *2 (N.D. Cal. Aug. 30, 2
0
ss
able
ts
11 (to asses a reasona hourly rate, “court consider the prevailing market rate in the
1
nity
milar
es
rs
nably comp
parable skill experienc and
l,
ce,
12 commun for sim service by lawyer of reason
2
973,
on.”) (citati omitted) see also Camacho v Bridgepor Fin., Inc., 523 F.3d 9
ion
);
C
v.
rt
13 reputatio
3
h
)
vits
p
ttorney[s] a other att
and
torneys regarding
14 980 (9th Cir. 2008) (“[a]ffidav of the plaintiffs’ at
4
ng
he
nity,
te
ations in oth cases . . . are satisf
ther
factory
15 prevailin fees in th commun and rat determina
5
e
rket
16 evidence of the prevailing mar rate.”).
6

17
7

By July 22, 2013, FINR must sub
y
2
RA
bmit the foll
lowing: (1) a copy of c
)
counsel’s

s,
k
opulos’s dec
claration, D No. 70- ¶ 13, for all of
Dkt.
-1
18 invoices as referred to in Nick Geannaco
8
F
m
d
ng
l
nce
19 the fees sought in FINRA’s motion; (2) declaration(s) describin the level of experien of
9
e
w
RA
es;
n(s)
r
20 all of the attorneys for whose work FINR seeks fee and (3) declaration or other
0
y
ng
s
n
ates
d
se
21 authority supportin FINRA’s contention that the ra charged in this cas are “well within
1
ge”
pplicable pr
revailing market rates.
22 the rang of the ap
2

23
3

Vi
irtusio’s mo
otion requesting leave to file an o
objection to Geannacop
pulos’s decl
laration

IED. The Court will hear Virtusio objectio and argu
C
h
o’s
ons
ument at th hearing.
he
24 is DENI
4

25
5

IT IS SO OR
T
RDERED.

26
6

Date: July 5, 2013

____
__________
__________
____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

27
7
28
8
Case No. 12-cv-0060 NC
02
ORDER RE: TENTA
R
ATIVE RUL
LING
AND SE
ETTING HEARING

3