Berry v. Urban Outfitters Wholesale, Inc. et al

Filing 87

Order by Magistrate Judge Kandis A. Westmore regarding 78 11/18/2014 Discovery Letter Brief.(kawlc2S, COURT STAFF) (Filed on 2/11/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAVID BERRY, et al.,

Case No. 13-cv-02628-JSW (KAW)

Plaintiffs,
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ORDER REGARDING 11/18/2014 JOINT
DISCOVERY LETTER BRIEF

v.
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URBAN OUTFITTERS WHOLESALE,
INC., et al.,

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United States District Court
Northern District of California

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Dkt. No. 78

Defendants.

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On November 18, 2014, the parties submitted a joint discovery letter brief concerning

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Plaintiffs’ request to recover attorneys’ fees for travel taken to depose Defendant Urban Outfitters

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Wholesale, Inc.’s 30(b)(6) witness, who did not appear at the duly noticed deposition. (11/18/2014

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Joint Letter, “Joint Letter,” Dkt. No. 78 at 2.) Defendant agreed to pay Plaintiffs’ travel costs, but

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refused to pay attorneys’ fees incurred for two days of missed work. Id.

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On January 15, 2015, the Court held a hearing, and after consideration of the joint letter

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and the parties’ arguments, and for the reasons set forth below, the Court GRANTS IN PART

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AND DENIES IN PART Plaintiff’s request to for reimbursement of attorney’s fees.

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I. BACKGROUND
Plaintiffs filed this class action against Defendant Urban Outfitters Wholesale, Inc. for

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alleged wage and hour violations. On August 19, 2014, Defense counsel confirmed via email that

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October 10, 2014 would work for the 30(b)(6) deposition in Philadelphia, Pennsylvania. (Joint

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Letter at 1.) On September 24, 2014, Plaintiffs noticed the deposition pursuant to Federal Rule of

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Civil Procedure 30(b)(6). (Joint Letter, Ex. 1.) On October 6, 2014, following a lengthy meet and

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confer, defense counsel reconfirmed that the 30(b)(6) deposition of Defendant would go forward

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on October 10, 2014 in Philadelphia. (Joint Letter at 1-2.) Plaintiff responded affirmatively. (Joint

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Letter at 2.)
On October 8, 2014, Defense counsel requested that the deposition on October 10, 2014

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start at 9:00 a.m. instead of 10:00 a.m., to which Plaintiffs agreed. (Joint Letter at 2). Aparajit

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Bhowmik, counsel for Plaintiffs, was in San Francisco on another matter, and had booked a flight

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to Philadelphia for the morning of October 9, 2014, in order to appear at the 30(b)(6) deposition

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scheduled for October 10, 2014 in Philadelphia. Id.

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On October 8, 2014, at 9:51 p.m., counsel for Defendant confirmed the October 10, 2014
deposition. Id. On October 9, 2014, at around 7:30 a.m., Mr. Bhowmik boarded his flight to

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Philadelphia, scheduled to depart at 8:10 a.m. Id. Around the same time, Defense counsel sent an

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email at 7:21 a.m. stating that “the 30(b)(6) deponent is not comfortable going forward tomorrow”

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United States District Court
Northern District of California

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and needs to reschedule. Id.

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On October 10, 2014, Mr. Bhowmik appeared at the duly noticed deposition, and took a
notice of nonappearance. (See Transcript, Joint Letter, Ex. 2.)
Counsel for Defendant paid the costs associated with Mr. Bhowmik’s appearance, and later

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produced the 30(b)(6) deponent in San Diego, California on November 13, 2014. Counsel for

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Defendant, however, refused to pay any of the attorneys’ fees incurred for the two days of work

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Mr. Bhowmik claims to have missed due to the abrupt cancellation resulting in his unnecessary

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travel. (Joint Letter at 2-3.) Plaintiffs contend that the total attorneys’ fees amount to $8,800,

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which constitutes two, eight hour days of work at $550 per hour.

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On November 18, 2014, the parties filed the joint discovery letter. On January 15, 2015,

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the Court held a hearing and ordered Plaintiffs to submit supplemental briefing in support of

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Plaintiffs’ requested attorneys’ fee award. On January 22, 2015, Plaintiffs submitted a

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supplemental brief. (Pl.’s Brief, Dkt. No. 85.) On January 27, 2015, Defendant submitted a

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response. (Def.’s Brief, Dkt. No. 86.)

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II. LEGAL STANDARD
A court must award fees and costs caused by a party’s failure to appear for deposition,

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unless the failure was substantially justified or other circumstances make an award unjust. Fed. R.

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Civ. P. 37(d)(1)(A)(i); 37(d)(3). “‘[T]he failure to appear need not be willful,’ and the court has
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discretion in deciding whether sanctions should be imposed.” Jefferson v. Cnty. of Napa, No. C

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03-5031 SI, 2007 WL 3287847, at *1 (N.D. Cal. Nov. 5, 2007) (quoting Lew v. Kona Hosp., 754

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F.2d 1420, 1426 (9th Cir. 1985) (citing Advisory Committee Notes to Rule 37(d))).

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III. DISCUSSION
A. Attorneys’ Fees for Deposition

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Plaintiffs seek $8,800 in attorneys’ fees in reimbursement for sixteen hours (or two, eight

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hour days) for the time Mr. Bhowmik spent traveling to the October 10, 2014 deposition that did

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not go forward. (Joint Letter at 2-3.)
Defendant argues that Mr. Bhowmik’s argument that he lost sixteen hours is disingenuous,

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because Defendant’s relocation of the rescheduled deposition to Mr. Bhowmik’s office meant that

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United States District Court
Northern District of California

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he only lost that work time once. (Joint Letter at 8.) The Court agrees. Since Mr. Bhowmik

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would have traveled to take the one-day 30(b)(6) deposition had it gone forward as scheduled, he

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effectively only lost one day of work, the day of the deposition itself.

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1. Attorneys’ Fee Award

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Courts in the Ninth Circuit calculate an award of attorneys’ fees using the lodestar method,

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whereby a court multiplies “the number of hours the prevailing party reasonably expended on the

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litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th

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Cir. 2008) (citation omitted). A party seeking attorneys’ fees bears the burden of demonstrating

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that the rates requested are “in line with those prevailing in the community for similar services by

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lawyers of reasonably comparable skill, experience and reputation.” Id. at 980 (quoting Blum v.

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Stenson, 465 U.S. 886, 895 n. 11 (1984)). Typically, affidavits of counsel “regarding prevailing

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fees in the community and rate determinations in other cases . . . are satisfactory evidence of the

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prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407

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(9th Cir. 1990) (citation omitted). The “community is the forum in which the district court sits.”

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Camacho, 523 F.3d at 979 (citation omitted).

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Plaintiffs originally requested sanctions in the amount of $8,800 based on a $550 per hour

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rate for sixteen hours, or two work days. (Joint Letter at 2.) At the hearing, the Court brought to

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Plaintiffs’ attention that their request for sanctions was not accompanied by a competent
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declaration which “itemize[d] with particularity the otherwise unnecessary expenses, including

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attorney fees, directly caused by the alleged violation or breach, and set forth an appropriate

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justification for any attorney-fee hourly rate claimed” if attorney fees or other costs or expenses

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are requested. Civil L.R. 37-4(b)(3). Specifically, Plaintiffs did not provide a declaration that

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specified the number of hours spent and justified counsel’s claimed hourly rate. In light of these

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deficiencies, the Court ordered Plaintiffs to submit a supplemental brief, with a supporting

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declaration, that substantiated the amounts claimed.

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On January 22, 2015, Plaintiffs filed a supplemental brief, which was accompanied by the
declaration of Aparajit Bhowmik. (Pl.’s Brief, Dkt. No. 85; Decl. of Aparajit Bhowmik,
“Bhowmik Decl.” Dkt. No. 85.) Plaintiffs sought to substantiate Mr. Bhowmik’s claimed billing

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United States District Court
Northern District of California

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rate of $550.00 per hour. (Pl.’s Suppl. Brief at 2.) Mr. Bhowmik is a partner with the law firm of

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Blumenthal Nordrehaug & Bhowmik. (Bhowmik Decl. ¶ 3.) Mr. Bhowmik has been practicing

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law for 8 years and currently specializes in employment class action matters. Id. At the time of the

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original deposition, Mr. Bhomik had been practicing for approximately 7 1/2 years.

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In his declaration, Mr. Bhowmik states that his rate of $550.00 per hour was approved by a

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judge in the U.S. District Court for Central District of California. (Bhowmik Decl. ¶ 5.) The order

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of approval that was attached in the Central District case, however, did not name Mr. Bhowmik or

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the hourly rate awarded. (See Bhowmik Decl., Ex. 4.) The other cases cited by Plaintiffs in

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support of Mr. Bhowmik’s hourly rate suffer from incomplete citations, and Mr. Bhowmik did not

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attach copies of orders approving his hourly rate to his declaration for the Court to review.

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Additionally, as Defendant states in its response, Plaintiffs included the 2013 National Law

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Journal Billing Survey, which is a national survey. (Def.’s Brief at 2.) Further, Mr. Bhowmik’s

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comparison of his rates to that of partners from national, top-tier defense firms, when he works for

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a six-person plaintiff-side firm, is not necessarily a reasonable comparison.

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Defendant, however, also argues that a fee award is improper, because it reimbursed the

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expenses Plaintiffs incurred relating to the deposition that did not go forward. (See Def.’s Brief at

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3.) At the hearing, Defendant argued that John Wiley & Sons v. Book Dog Books, LLC, 298

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F.R.D. 145, 150 n. 2 (S.D.N.Y. March 18, 2014), is instructive, and requires that the Court credit
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the expenses already reimbursed to any attorneys’ fees found owing, because the 30(b)(6) witness

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was later produced at Mr. Bhowmik’s office, rendering duplicative travel unnecessary. The Court

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notes that Wiley is inapposite, because the Wiley plaintiffs were not seeking attorneys’ fees for lost

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time. Further, the issue of reimbursement for travel was not the subject of the joint letter, as the

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parties resolved that dispute without court intervention. Rather it was simply raised by Defendant

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as a defense to any fees owed. Thus, the Court declines to credit the expenses paid against the

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fees owed. As provided above, however, the Court is only awarding fees for one eight-hour day,

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because the 30(b)(6) witness was later produced at Mr. Bhowmik’s office, thereby eliminating the

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need for subsequent travel. See discussion supra Part III.A.1
Plaintiffs bear the burden of showing that Mr. Bhowmik’s hourly rate is reasonable. The

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United States District Court
Northern District of California

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Court is aware of the prevailing rates in the community for similar services performed by

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attorneys of comparable skill, experience, and reputation, and it finds that Mr. Bhowmik’s claimed

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hourly rate is unreasonable. See, e.g., Recouvreur v. Carreon, 940 F. Supp. 2d 1063, 1070 (N.D.

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Cal. 2013) (finding an ordinary billing rate of $300 per hour reasonable for a lawyer in private

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practice and utilizing the Adjusted Laffey Matrix). Defendant, in opposing Mr. Bhowmik’s

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claimed fee of $550.00, asks that the Court award no more than $400.00 per hour. This figure is

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supported by the Adjusted Laffey Matrix, frequently used by the District of Columbia, which

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confirms that the average hourly rate for an attorney with 7 years of experience is $402.00 per

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hour.2 The U.S. Department of Justice maintains its own Laffey Matrix, which provides that

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attorneys with between four and seven years of experience charge $300.00 per hour in the

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Washington, D.C. area, while the billing rate for attorneys with eight to ten years of experience is

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$370.000 per hour.3
Courts “should be guided by the rate prevailing in the community for similar work

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Coincidentally, the $3,585.04 in expenses paid by Defendant is very similar to Mr. Bhowmik’s
reasonable attorneys’ fees for one eight-hour day. See discussion infra. Thus, if the Court awarded
two days of attorneys’ fees and credited the reimbursement—which is what could have happened
if a dispute regarding reimbursement were properly before the Court—the amount due would be
almost the same.
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Adjusted Laffey Matrix, http://www.laffeymatrix.com/ (last visited Feb. 9, 2015).
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U.S. Dep’t of Justice, Laffey Matrix 2014-2015 (July 14, 2014),
http://www.justice.gov/usao/dc/divisions/Laffey%20Matrix_2014-2015.pdf.
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performed by attorneys of comparable skill, experience, and reputation.” Schwarz v. Sec'y of

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Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 1995). Plaintiffs, however, do not cite to any

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cases in this district where a $550.00 billing rate was awarded to an attorney of comparable skill

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and experience as Mr. Bhowmik. Nor have Plaintiffs provided declarations from other attorneys

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with similar experience. Plaintiffs instead rely on cases where Mr. Bhowmik has purportedly

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received an award of $550.00 per hour, but, as provided above, the Court is unable to evaluate

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those awards. Even the list of representative cases on the Firm Resume does not assist the Court,

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as the Court is not tasked with researching every case in which the attorneys at Mr. Bhowmik’s

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firm have served as counsel to determine whether his billing rate is appropriate. (See Firm
Resume, Bhowmik Decl., Ex. 1.) Moreover, in a recent case in the Northern District, a partner at

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United States District Court
Northern District of California

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a San Francisco-based, national litigation firm, possessing over 20 years of experience, was

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awarded his firm’s partner billing rate of $425.00 per hour. Postier v. Louisiana-Pac. Corp, No.

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09-CV-03290-JCS, 2014 WL 1760010, at *5 (N.D. Cal. Apr. 29, 2014). Since Plaintiffs have not

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met their burden to support a billing rate of $550.00 per hour, the Court finds that a billing rate of

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$400.00 per hour is reasonable, as it is in line with not only other awards in this district, but also

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with the Adjusted Laffey Matrix.4
Accordingly, the Court orders Defendant to pay Mr. Bhowmik fees for one eight-hour day,

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which is $3,200.00.
B. Attorneys’ Fees related to preparing the Joint Letter

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Plaintiffs claim to have incurred $1,100 in attorneys’ fees in preparing the joint letter.

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(Joint Letter at 3.) The Court, however, declines to award fees in connection with this dispute,

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because the parties engaged in a meet and confer process, which resulted in Defendant paying

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Plaintiffs’ expenses. Simply seeking court intervention does not warrant an additional fee award.
Similarly, the Court also declines to award Defendant any fees in relation to the

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preparation of the joint letter.

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The $300.00 to $375.00 figure suggested by the U.S. Department of Justice’s Laffey Matrix is
low for an attorney with seven to eight years of experience practicing in the Northern District.
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IV. CONCLUSION

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In light of the foregoing, Plaintiffs’ request for attorneys’ fees is GRANTED IN PART

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AND DENIED IN PART. Defendant shall pay Plaintiffs $3,200.00 in attorneys’ fees within 30

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days of this order, unless the parties agree otherwise.

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IT IS SO ORDERED.
Dated: 02/11/2015
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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