Andrews v. Lawrence Livermore National Security, LLC. et al

Filing 44

ORDER AWARDING PLAINTIFFS' ATTORNEYS' FEES re 15 . Signed by Judge Claudia Wilken on 1/18/2012. (ndr, COURT STAFF) (Filed on 1/18/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ELAINE ANDREWS, et al.,

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No. C 11-3930 CW

Plaintiffs,

ORDER AWARDING
PLAINTIFFS'
ATTORNEYS' FEES
(Docket No. 15)

v.
LAWRENCE LIVERMORE NATIONAL
SECURITY, LLC, et al.,
Defendants.
________________________________/

United States District Court
For the Northern District of California

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Previously the Court granted Plaintiffs' motion to remand and

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their request for costs and attorneys' fees pursuant to 28 U.S.C.

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§ 1447(c).

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the amount of costs and fees awarded, pending the submission of

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further briefing and documentation.

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Docket No. 33.

However, the Court deferred ruling on

Having considered all of the

parties' submissions, the Court awards Plaintiffs $39,624 in fees.

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DISCUSSION
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Title 28 U.S.C. § 1447(c) provides that, on granting a motion

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to remand, the court may order the defendant to pay the plaintiff

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its “just costs and any actual expenses, including attorney fees,

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incurred as a result of the removal.”

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calculate an award of attorneys’ fees using the lodestar method,

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whereby the court multiplies “the number of hours the prevailing

In this circuit, courts

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party reasonably expended on the litigation by a reasonable hourly
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rate.”

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th

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Cir. 2008).

The party seeking an award of attorneys' fees bears

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the burden of producing "satisfactory evidence--in addition to the

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attorney's own affidavits--that the requested rates are in line

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with those prevailing in the community for similar services by

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lawyers of reasonably comparable skill, experience and

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reputation."

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Id. at 980.

Attorneys’ fees must be awarded “in

line with the prevailing market rate of the relevant community.”

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Carson v. Billings Police Dep’t., 470 F.3d 889, 891 (9th Cir.
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United States District Court
For the Northern District of California

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2006).

Generally, “the relevant community is the forum in which

the district court sits.”

Camacho, 523 F.3d at 979.

Reasonable hours expended on a case are hours that are not

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“‘excessive, redundant, or otherwise unnecessary.’”

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City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting

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Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

McCown v.

Although the

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lodestar amount is presumptively reasonable, courts may adjust the
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lodestar amount considering the time and labor required, the
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novelty and difficulty of the questions involved, the skill

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requisite to perform the legal service properly, whether the fee

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is fixed or contingent, the amount involved, the results obtained,

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counsel’s experience, reputation, and ability, and awards in

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similar cases.

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See Ballen v. City of Redmond, 466 F.3d 736, 746

(9th Cir. 2006) (internal citations and quotations omitted).

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In their initial request for fees and costs, Plaintiffs
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sought $52,207.50.

The Court found lacking Plaintiffs'

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documentation in support of the hourly rate for two of their

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attorneys.

It also appeared that the number of hours of service
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indicated in the request was excessive in light of Plaintiffs'

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fifteen page motion to remand and fourteen page reply brief.

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Court ordered Plaintiffs to submit supplemental briefing,

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contemporaneous billing records and an explanation of the number

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of hours of service required to complete their motion to remand.

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The

In their supplemental briefing, Plaintiffs request

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$76,419.00 in attorneys' fees and costs.

To support their amended

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request, Plaintiffs submitted declarations by the three attorneys

United States District Court
For the Northern District of California

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assigned to the motion--J. Gary Gwilliam, a senior, founding

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partner at Gwilliam, Ivary, Chiosso, Cavalli & Brewer, P.C., the

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firm representing Plaintiffs, Robert E. Strauss, also a partner in

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the firm, and Robert J. Schwartz, a contract attorney, whose

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services were utilized by the firm.

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A. Reasonable Rates
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The hourly rates requested by Plaintiffs for their attorneys
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are reasonable.
Gwilliam, who has practiced civil litigation for over thirty

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years, requests an hourly rate of $750.

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has been approved in prior litigation and is consistent with the

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prevailing market rate in this district for similarly experienced

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and skilled attorneys.

This rate for Gwilliam

See, e.g., Canal v. Dann, 2011 WL 3903166,

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*2-4 (N.D. Cal.) (approving a $700 hourly rate for a similarly
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experienced attorney, and noting evidence of a $785 hourly rate

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charged by a senior partner at a plaintiffs' firm who has earned

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numerous accolades and has practiced law since 1983).
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Strauss, who has over seventeen years of experience

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representing plaintiffs and handling employment related matters,

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seeks an hourly rate of $585.

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resolutions on behalf of numerous plaintiffs.

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different case, Strauss was awarded fees at a rate of $525, which

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He has obtained favorable
In 2009, in a

was not contested by the defendants, who were then represented by

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the same firm presently representing Defendants in this action.
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Strauss' rate appears reasonable based on the rate billed by an

United States District Court
For the Northern District of California

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associate, with seven years less experience than Strauss, who

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works at the firm representing Defendants, and based on the rate

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approved for similarly experienced and skilled attorneys in other

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litigation pursued in this district.

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See id.

Schwartz requests an hourly rate of $300.

Schwartz was

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admitted to the California Bar in 2007.

He has worked as a

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contract attorney with the firm of record in this action since
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September 2009.

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exclusively on the present case at all phases of the litigation.

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Schwartz has extensive knowledge of the voluminous documents in

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this case, has meet with Plaintiffs on numerous occasions and has

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participated in several depositions.

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During that time, he has worked almost

Schwartz has also

participated in a state court trial.

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Defendants argue that a reasonable rate for Schwartz is $75
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to $150 per hour.

The contract rates submitted in connection with

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Katina B. Miner's declaration, however, provide no indication that

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such rates would be charged by an attorney with experience and
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skills similar to Schwartz's.

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is that Schwartz is a contract attorney.

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provide no authority for the proposition that, for purposes of

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determining reasonable hourly rates, an attorney's status as a

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contract attorney, as opposed to his or her employment as an

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The gist of Defendants' objection
However, Defendants

associate, is a proper substitute for evaluating an attorney's

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actual experience or skills.
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Plaintiffs have submitted evidence that a managing associate

United States District Court
For the Northern District of California

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at the firm retained by Defendants, with employment law

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experience, who graduated in 2006, billed at an hourly rate of

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$480 in 2010 and 2011.

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who also specialized in employment litigation, graduated in 2009

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and clerked prior to beginning practice with the firm, billed an

Likewise, an associate with the same firm,

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hourly rate of $380 in 2011.

By comparison, Schwartz's rate of

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$300 appears reasonable.
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B. Reasonable Hours

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The amount of hours sought by Gwilliam and Strauss are

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excessive.

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thirty-three hours on the motion to remand between August 10, 2011

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and August 26, 2011.

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Gwilliam's declaration indicates that he worked

He worked an additional eight hours to

prepare Plaintiffs' supplemental three page brief, to review three

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drafts of his eight page declaration, as well as Strauss' and
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Schwartz's declarations.1

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hours of work incurred as a result of the motion to remand.

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Finally, Schwartz requests fees for 58.33 hours of service.

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Strauss requests fees for fifty-two

The hours of work reported indicate substantial duplication
of efforts by the three attorneys and a disregard for the

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reasonable delegation of work to attorneys based on their
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experience.

For example, on August 12, 2011 all three attorneys

billed substantial hours to research legal authorities relevant to

United States District Court
For the Northern District of California

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Defendants' notice of removal.

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Strauss billed 4.5 hours and Gwilliam billed 2.5 hours.

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the legal authorities at issue in Plaintiffs' opening brief were

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limited.

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Schwartz billed eight hours,
However,

Given Gwilliam's and Strauss' substantial litigation

experience and the research time they billed on August 11, 2011,

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the motion should not have required significant time on their part
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on August 12, 2011.
The records for August 25 and 26, 2011 are also illustrative.

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On these days, Plaintiffs' counsel indicate that they worked on

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their reply in support of their motion for remand.

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time, Gwilliam billed 13.5 hours, Strauss billed 16 hours and

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Schwartz billed 20.58 hours in connection with preparing the

During that

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reply.
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There is an error in Gwilliam's declaration. He attests
that he provided a total of thirty-eight hours of service,
although his records for time spent on the supplemental briefing
indicate an additional three hours of service.
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The motion to remand required substantial work, given the

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posture of the case, the parties' arguments about the grounds for

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removal and the need for an examination of the parties'

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communications and disclosures.

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of whether Plaintiffs were asserting new claims in state court

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The motion required consideration

that fell within federal jurisdiction, such that grounds existed

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under the parties' stipulation to remove the case for a second
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time.

Significant supporting documents were required to provide

United States District Court
For the Northern District of California

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evidence of the parties' filings, communications and disclosures.

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In light of the posture of the case--a pending motion for summary

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adjudication and an imminent trial date--counsel for Plaintiffs

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would have been relatively familiar with key legal and factual

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issues in the case, but locating and gathering the necessary

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information to respond vigorously would have required substantial
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time.
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Nevertheless, Plaintiffs do not explain specifically why

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50.08 hours of attorney time was reasonable to prepare their

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fourteen page reply.

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motion entailed the inclusion of boilerplate language, the legal

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issues presented were straight-forward.

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Although there is no indication that the

The extremely large

request for fees suggests an attempt by Plaintiffs to punish

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Defendants for their objectively unreasonable decision to remove
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the case, when Defendants had already agreed to remand the action

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once before and actively litigated the case in state court.

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Indeed, at the time Defendants removed the case to this Court, as
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noted earlier, a motion for summary adjudication was pending in

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state court and the parties were preparing for a fast-approaching

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trial date.

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Although Schwartz's request for 58.33 hours appears within a
range of reasonableness, Plaintiffs' supporting declarations are
inadequate to justify the additional hours requested for the

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partners, Gwilliam and Strauss.

To better reflect the time

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necessary to reasonably supervise Schwartz's efforts and prepare

United States District Court
For the Northern District of California

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the briefing, Gwilliam's time is reduced to ten hours and Strauss'

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time is reduced to twenty-five hours.

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C. Costs

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Neither Plaintiffs' original briefing on their request for

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attorneys' fees, nor their supplemental briefing, point to

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evidence of the costs incurred as a result of their motion to
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remand.
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CONCLUSION

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Plaintiffs' request for attorneys' fees in connection with

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its motion to remand is granted in the amount of $39,624.

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award amounts to 58.33 hours for Schwartz's service at the rate of

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$300 per hour, ten hours for Gwilliam's service at the rate of

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This

$750 per hour and twenty-five hours for Strauss' service at the

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rate of $585 per hour.
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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 1/18/2012

CLAUDIA WILKEN
United States District Judge

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