Martinez v. Extra Space Storage Inc et al

Filing 125

ORDER RE ATTORNEY'S FEES AND COSTS 124 Order on Motion for Attorney Fees, 99 MOTION for Attorney Fees filed by Extra Space Management, Inc, Extra Space Storage Inc. Signed by Judge William Alsup on December 16, 2013. (whalc4, COURT STAFF) (Filed on 12/16/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TERESA ANN MARTINEZ,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 13-00319 WHA

v.
EXTRA SPACE STORAGE, INC., a
Maryland corporation, EXTRA SPACE
MANAGEMENT, INC., a Utah corporation,
and DOES 1 through 100, inclusive,

ORDER RE
ATTORNEY'S FEES
AND COSTS

Defendants.

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1.

As recently held, Extra Space Storage, Inc., and Extra Space Management, Inc.,

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are entitled to recover attorney’s fees and costs in connection with plaintiff Martinez’s putative

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class action. Plaintiff Martinez was dismissed on procedural grounds and the merits of her action

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were never fully adjudicated. Whether or not defendants sold plaintiff’s property illegally was

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never determined. Plaintiff was not the only named class representative and after she was

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dismissed, the action proceeded without her. Accordingly, equity requires that defendants

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recover only the costs associated with their good-faith attempts to take plaintiff Martinez’s

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deposition. Fees and costs associated with defeating the class action in general must be excluded.

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2.

The following procedure will be used to determine the amount of an award herein.

It will be structured to allow meaningful evaluation of the time expended.
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No later than DECEMBER 30, 2013, defendants’ attorneys must file and serve a

detailed declaration, organized by discrete projects, breaking down all attorney and paralegal time
sought to be recovered. For each project, there must be a detailed description of the work, giving

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the date, hours expended, attorney name, and task for each work entry, in chronological order. A

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“project” means a deposition, a motion, a witness interview, and so forth. It does not mean

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generalized statements like “trial preparation” or “attended trial.” It includes discrete items like

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“prepare supplemental trial brief on issue X.” The following is an example of time collected by a

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project.

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PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)
Date

Timekeeper

Description

Hours x

Rate =

Fee

01-08-01

XYZ

Assemble and photocopy exhibits for
use in deposition.

2.0

$100

$200

01-09-01

RST

Review evidence and prepare to
examine ABC at deposition.

4.5

$200

$900

01-10-01

XYZ

Research issue of work-product
privilege asserted by deponent.

1.5

$100

$150

01-11-01

RST

Prepare for and take deposition.

8.5

$200

$1700

01-12-01

RST

Prepare for and take deposition.

7.0

$200

$1400

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For the Northern District of California

United States District Court

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Project Total:
4.

23.5

$4350

All entries for a given project must be presented chronologically one after the

other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily
grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for
inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the
example above, and show grand totals for all projects combined at the end. Include only entries
for which compensation is sought, i.e., after application of “billing judgment.” For each project,
the declaration must further state, in percentage terms, the proportion of the project directed at
issues for which fees are awardable and must justify the percentage. This percentage should then
be applied against the project total to isolate the recoverable portion (a step not shown in the
example above).
5.

A separate summary chart of total time and fees sought per individual

timekeeper (not broken down by project) should also be shown at the end of the declaration. This

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cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the overall

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case.

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6.

The declaration must also set forth (a) the qualifications, experience and role of

each in the relevant time period; (c) how the rates were comparable to prevailing rates in the

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community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.

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On the latter point, as before, the declaration should describe adjustments made to eliminate

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duplication, excess, associate-turnover expense, and so forth. These adjustments need not be

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itemized but totals for the amount deleted per timekeeper should be stated. The declaration must

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identify the records used to compile the entries and, specifically, state whether and the extent to

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For the Northern District of California

each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for

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United States District Court

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which the records were contemporaneous versus retroactively prepared. It must state the extent to

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which any entries include estimates (and what any estimates were based on). Estimates and/or

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use of retroactively-made records may or may not be allowed, depending on the facts and

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circumstances.

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7.

Ordinarily, no more than one attorney and one paralegal need be present at a

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deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney need

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attend a law-and-motion hearing; more will normally be deemed excessive. To allow for

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symmetry, however, the award will take into account the staffing used by the opposing party.

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8.

If the opposing party doubts the accuracy of the declaration, then the moving party

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must immediately produce the original underlying time records for inspection upon request. The

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opposing party must then file and serve any opposition. In this case, the opposition will be due

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FOURTEEN CALENDAR DAYS after

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contends that any item or project was excessive, then the opposition must explain why and

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provide a declaration setting forth completely all time expended by the opposing party on the

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same and on similar projects, in the same format described above, so that symmetry may be

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considered, making available the underlying records for inspection if requested. If any billing

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rates are challenged, then the opposition must state the billing rates charged to the opposing party

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for all professionals representing the opposing party in the case and their experience levels. The

defendants’ detailed declaration is filed. If the opposing party

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opposing declaration must also state, as to each project, the percentage of the project the

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opposition contends was directed at issues on which fees are awardable, stating reasons for the

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percentage. This percentage should then be applied against the project total to isolate the

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recoverable portion.

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9.

The opposing submissions may not simply attack the numbers in the application.

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It must also set forth a counter-analysis. The counter-analysis should be in the same format

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required of the applicant, arriving at a final number. The opposition must clearly identify each

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line item in the application challenged as excessive, improper or otherwise unrecoverable and

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explain why. The opposition, for example, may annotate (legible handwriting will be acceptable)

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For the Northern District of California

United States District Court

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the applicant’s declaration to isolate the precise numbers at issue.
10.

With the benefit of both sides’ filings, representatives of the parties with final

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decision authority shall meet in person and confer to try to resolve all differences as to the

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amount. If no agreement is reached, the moving party must file and serve a declaration showing

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full compliance with this paragraph, explaining when, where and who met, their decision

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authority, how long they met, what documents were reviewed together, and the principal points of

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disagreement. This must be done within 28 CALENDAR DAYS of the filing of movant’s detailed

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declaration.

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11.

If no agreement is reached, a special master shall be appointed. If the parties

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cannot agree on a special master, then the Court shall select a special master. The parties must so

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advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed declaration.

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12.

The special master shall have all the powers set forth in FRCP 53(c) and

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FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion papers

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and other documents relevant to this dispute. The special master shall review the briefs and

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declarations by the parties on the pending motion, hear argument, and then determine a

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reasonable amount to award, including any fees on fees. The special master shall also determine

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the extent to which any discovery should be permitted — with the caution that further discovery

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should be the exception and not the rule. The special master shall then prepare and file a report

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on recommended findings and amount.
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13.

Absent any supplementation allowed by the special master, the foregoing

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submissions (together with the briefs already filed) shall be the entire record for the motion.

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There will be no replies unless allowed later by the special master. Any further submissions for

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the special master’s use should not be filed with the Court. If objections are later made to the

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special master’s report, the objecting party must file a declaration submitting to the Court a

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complete appendix of relevant communications with the special master.

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14.

The Court will allocate the fees of the special master in a fair and reasonable

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manner, taking into account the reasonableness of the parties’ respective positions and the special

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master’s recommendation in this regard. If the movant must pay, then the special master’s
compensation shall be deducted from the attorney’s fee award. If the opposing party must pay the

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For the Northern District of California

United States District Court

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special master, then it shall pay the special master and pay the award. The Court will, however,

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reserve final judgment on allocation of the expense of the special master until a final

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determination of the fee issue. A final award shall then be entered.

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15.

Costs will be determined in strict compliance with the local rules. If a review is

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sought regarding taxable costs, then the issue may also be referred to a special master (or may

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not).

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IT IS SO ORDERED.

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Dated: December 16, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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