Long et al v. Nationwide Legal File and Serve, Inc et al

Filing 112

ORDER by Judge Lucy Koh granting in part and denying in part 90 Motion for Attorney Fees (lhklc2S, COURT STAFF) (Filed on 7/23/2014)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11
12
13
14
15
16
17
18
19

GRADY VERNON LONG, ISMAIL ISA, and
WARREN JEREMIAH SPIES,

)
)
)
Plaintiffs,
)
v.
)
)
NATIONWIDE LEGAL FILE & SERVE, INC., )
a California Corporation; NATIONWIDE
)
LEGAL, LLC, a Delaware limited liability
)
company; CEASAR ERIC RAILEY,
)
individually and in his official capacity; and
)
DOES 1 through 10, inclusive,
)
)
Defendants.
)
)

Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION FOR ATTORNEY’S FEES
AND COSTS

Before the Court is Plaintiffs Grady Vernon Long’s, Ismail Isa’s, and Warren Jeremiah

20

Spies’ (collectively, “Plaintiffs”) Motion for Attorney’s Fees and Costs following an action

21

brought under the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § § 1692 et

22

seq. ECF No. 90. Plaintiff’s counsel is Fred Schwinn and Raeon Roulston of Consumer Law

23

Center, Inc, as well as the Center’s law clerk, Matthew Salmonsen. Id. at 5. Pursuant to Civil Local

24

Rule 7-1(b), the Court finds this matter appropriate for determination without oral argument.

25

Accordingly, the hearing set for July 24, 2014, at 1:30 p.m. is VACATED. For the reasons

26

discussed below, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiffs’

27

Motion.

28
1
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

I.

BACKGROUND
A.

Facts

This case arose out of Plaintiffs’ allegations that Defendants engaged in “sewer service,” a
practice whereby a proof of service is filed in court stating that a party has been served when in
reality no service has occurred. As a result of the falsified proof of service, default and default
judgment are entered against the unaware party. Plaintiffs alleged that each of them was a victim of
Defendants’ “sewer service.” Plaintiffs were each alleged debtors against whom the law firm
Nelson & Kennard filed debt collection actions on behalf of various clients. See ECF No. 1
(“Compl.”) Exs. 1, 2, 3. In each case, Nelson & Kennard used the services of Defendant
Nationwide Legal File & Serve, Inc. (“NLFS”) to serve process on Plaintiffs. See Compl. Exs. 1, 2,

3. NLFS, in turn, allegedly relied on the services of Railey, a registered process server, to serve
Plaintiffs. ECF No. 52-2 (NLFS’s Resp. to Pl. First Set of Interr.) at 10-11; Compl. Exs. 1, 2, 3.
Nelson & Kennard filed a debt collection action against Plaintiff Long for consumer debt
originating from an HSBC credit card. ECF No. 50-1 (Long Decl.) ¶¶ 4-5; Kennard Decl. ¶¶ 2, 3.
On July 11, 2011, Railey completed and signed a proof of service of summons attesting that he had
personally served Long. ECF No. 50-8. Long stated he never received service, personally or
otherwise. Long Decl. ¶ 6. Because Long had no notice of the action and thus failed to appear,
default judgment was entered against him. Id. ¶ 5. Long only found out about the existence of the
action against him through a lien notice received in November 2011. Id. Judge Barbara Kronlund,
sitting in the San Joaquin County Superior Court, issued a tentative ruling setting aside Long’s
default and default judgment and noting that evidence supported Long’s statement that he had not
been served. ECF No. 50-9.
On July 20, 2011, Railey completed and signed a proof of service of summons attesting that
he had personally served Plaintiff Isa. ECF No. 50-10. The proof of service described Isa as
“Black, Male, 35 Years Old, Black Hair, Brown Eyes, 5 Feet 9 Inches, 180 Pounds.” Id. According
to the copy of the driver’s license that Isa submitted, Isa was 68 years old at the time of service and
is East Indian. ECF No. 50-2 (Isa Decl.) Ex. A; Isa Decl. ¶ 8. Isa also stated he had not lived at the

28
2
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

address Railey noted on the proof of service for almost a year at the time of service. Isa Decl. ¶ 7.
After Isa learned of the default judgment entered against him through an earnings withholding
order, Isa retained an attorney and successfully challenged the proof of service. Isa Decl. ¶¶ 5, 10.
Isa’s default judgment was set aside. Isa Decl. ¶ 10.
On August 1, 2011, Railey completed and signed a proof of service of summons attesting
that he successfully served Plaintiff Spies by substitute service. ECF No. 50-11. According to
Spies, Spies never received service because since November 2010 Spies had not lived at the
address referenced on Railey’s completed proof of service document. ECF No. 50-4 (Spies Decl.)
¶¶ 8, 9. Spies stated that to the best of his knowledge, no one was living at the address where
Railey purportedly served Spies at the time that Railey documented serving Spies. Id. ¶ 9. Spies
first learned of the default judgment entered against him when an employee of Nelson & Kennard
wrote him a letter stating that the firm had obtained a judgment against him. Id. ¶ 5.
Defendant NLFS is a California corporation that provides court filing and service of
process services. ECF No. 55 (Godshall Decl.) ¶ 25-27. NLFS clients include law firms
specializing in consumer debt collection. Id. NLFS hires registered process servers as independent
contractors, and entrusts them with serving process in accordance with the specifications of
NLFS’s clients. Id. ¶¶ 28, 37. NLFS’s clients supply instructions, the summons, the defendant’s
address, and the complaint. Id. ¶ 37. NLFS files the lawsuit and uses its contracted process servers
to attempt to serve process in accordance with the client’s instructions. Id.
Defendant Nationwide Legal, LLC (“Nationwide Legal”) provides law firms with “attorney
support services” including filing legal documents, service of process, messenger services, and
assistance in document production. ECF No. 54 (Ektefaie Decl.) ¶ 9.
At the summary judgment stage of this litigation, Nationwide and NLFS argued they
operate separately. Ektefaie Decl. ¶¶ 24-38; Godshall Decl. ¶¶ 7-24. They cited evidence that the
entities pay separate rent for separate office space, maintain separate records for accounting, have
separate insurance, and have separate employees. Godshall Decl. ¶¶ 11-14. The funds and incomes
of the two businesses have never been commingled. Id. ¶¶ 14-15. Nationwide and NLFS do not

28
3
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

share clients. Id. ¶ 10. The entities do have some ties. For example, Davoodi and Ekhaven, who coown Nationwide, are founders with Godshall of NLFS. Godshall Decl. ¶ 6; Ektefaie Decl. ¶ 8, 23.
Nationwide’s general manager and chief administrative officer, Mehdi Ektefaie, serves as an
officer with NLFS, advises NLFS management, assists with NLFS human resources decisions, and
assisted with the licensure process for NLFS. Ektefaie Decl. ¶¶ 35-37. Ektefaei has never been on
payroll at NLFS. Id. ¶ 35. Nationwide and NLFS at times share legal advice regarding service of
process or human resources, and the companies pay the resulting bills in proportion to the services
rendered. Id. ¶ 34. The businesses share an address, though they do not share office space. Id. ¶ 26.
In February 2011, Railey signed an independent contractor agreement with Nationwide.
Ektefaie Decl. Ex. 7. Railey also was a process server for NLFS, serving in an independent
contractor capacity. ECF No. 7 (Answer) at 13 ¶ 7; ECF No. 64 (Godshall Opp. Decl.) ¶ 35.
Railey’s assignments at NLFS included service on Plaintiffs Long, Isa, and Spies. Godshall Decl. ¶
63; Compl. Exs. 1, 2, 3.
Based on these facts, Plaintiffs brought their complaint against NFLS, Nationwide Legal,
and Railey, seeking relief under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§
1692 et seq.; the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), Cal. Civil Code §
1788 et seq; and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200.
Compl. ¶¶ 90-133.
B.

Procedural History

On July 9, 2012, Plaintiffs filed a complaint against Railey, Nationwide Legal, and NLFS.
ECF No. 1. On August 15, 2012, NLFS and Nationwide Legal filed their answer. ECF No. 7. On
December 6, 2012, the Court entered default against Railey. ECF No. 21. Plaintiffs did not file a
motion seeking entry of default judgment afterwards, but simply voluntarily dismissed Railey on
October 15, 2013. ECF No. 86.
On July 25, 2013, Plaintiffs filed a motion for summary judgment, to which Defendants
filed an opposition, and Plaintiffs filed a reply. ECF Nos. 50, 62-65, 68, and 69. On July 26, 2013,
Defendants filed a motion for summary judgment, to which Plaintiffs filed an opposition, and

28
4
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10

Defendants filed a reply. ECF Nos. 53-56, 67, and 71-74. On September 17, 2013, the Court
granted in part and denied in part Plaintiffs’ and Defendants’ motions. ECF No. 79. The Court
granted Defendants’ motion with respect to Nationwide Legal’s liability “[b]ecause Plaintiffs have
not raised a triable issue of fact that Nationwide is directly liable for the actions of Railey or that
Nationwide is an alter ego or joint venturer of NLFS,” but denied the motion with respect to
NFLS’s arguments concerning whether it could be held vicariously liable for Railey’s conduct, and
the bona fide error defense. Id. at 12, 15, 17. The Court granted Plaintiffs’ motion as to NLFS’s
bona fide error defense and as to whether Plaintiffs are “consumers” obligated to pay personal debt
under the FDCPA. Id. at 23. The Court denied Plaintiffs’ summary judgment motion in all other
respects.

11
12
13
14
15
16
17
18
19

On September 26, 2013, Plaintiffs filed a notice of acceptance of an offer of judgment by
NFLS pursuant to Federal Rule of Civil Procedure 68. ECF No. 81. Specifically, NLFS offered to
allow judgment against it in favor of Plaintiffs in the amount of statutory damages totaling
$6,000.00. See id., Ex. 1 at 2. The offer stated, “Plaintiffs will also be awarded their court costs
(including reasonable attorney’s fees, as determined by the Court as provided by 15 U.S.C.
§1692k), those costs and reasonable attorney’s fees incurred to the date of this Offer of judgment.”
Id. On October 15, 2013, the Court entered judgment in favor of Plaintiffs and against NLFS. ECF
No. 87. On October 21, 2013, the Court also entered judgment in favor of Nationwide Legal. ECF
No. 89.

20
21
22
23
24
25
26
27

On October 29, 2013, Plaintiffs filed their Motion for Attorney’s Fees and Costs and
supporting declarations against NLFS. ECF No. 90 (“Mot.”). On November 12, 2013, NLFS filed
its Opposition and supporting declarations. ECF Nos. 93-95. On November 22, 2013, NFLS filed a
“supplemental memorandum as to costs.” ECF No. 99 (“Supp. Memo.”). On December 10, 2013,
Plaintiffs filed a reply. ECF No. 100 (“Reply”).
II.

LEGAL STANDARD
The Fair Debt Collection Practices Act (“FDCPA”) directs a court to award attorney’s fees

to a prevailing consumer against the liable debt collector. 15 U.S.C. § 1692k(a)(3). The Ninth

28
5
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8

Circuit has held that “the FDCPA’s statutory language makes an award of fees mandatory.”
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted). Courts in
the Ninth Circuit calculate an award of attorney’s fees under the FDCPA using the lodestar
method, whereby a court multiplies “the number of hours the prevailing party reasonably expended
on the litigation by a reasonable hourly rate.” Id. “Although in most cases, the lodestar figure is
presumptively a reasonable fee award, the district court may, if circumstances warrant, adjust the
lodestar to account for other factors which are not subsumed within it.” Ferland v. Conrad Credit
Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001).

9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16

A party seeking attorney’s fees bears the burden of demonstrating that the rates requested
are “in line with the prevailing market rate of the relevant community.” Carson v. Billings Police
Dep't, 470 F.3d 889, 891 (9th Cir.2006) (internal quotation marks omitted). Generally, “the
relevant community is the forum in which the district court sits.” Camacho, 523 F.3d at 979 (citing
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997)). Typically, “[a]ffidavits of the plaintiffs’
attorney and other attorneys regarding prevailing fees in the community and rate determinations in
other cases ... are satisfactory evidence of the prevailing market rate.” United Steelworkers of Am.
v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

17
18
19
20
21
22
23
24
25
26
27

“The party opposing the fee application has a burden of rebuttal that requires submission of
evidence to the district court challenging the accuracy and reasonableness of the . . . facts asserted
by the prevailing party in its submitted affidavits.” Camacho, 523 F.3d at 980 (citing Gates v.
Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992)). “The lodestar amount presumably reflects
the novelty and complexity of the issues, the special skill and experience of counsel, the quality of
representation, and the results obtained from the litigation.” Intel Corp. v. Terabyte Int’l, Inc., 6
F.3d 614, 622 (9th Cir. 1993). Thus, there is a strong presumption that the lodestar amount
represents a reasonable fee and any adjustment of that figure is proper only in “rare and exceptional
cases.” Van Gerwen v. Guar. Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000) (internal citations
omitted).
III.

DISCUSSION

28
6
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Plaintiffs move the Court for an award of $59,832.50 in attorney’s fees and $4,551.46 in
costs, for a total of $64,383.96. Mot. at 6, 13; Reply at 19. To support this amount, Plaintiffs
provide an itemized billing statement detailing the services rendered by their attorneys from
November 2011 to October 2013; the hours worked in rendering those services, broken down by
task; and the hourly rate billed by the attorney performing a particular task. See ECF No. 90-2
(“Invoice.”). This invoice represents the work performed by two attorneys, Fred W. Schwinn
(“Schwinn”) and Raeon R. Roulston (“Roulston”), and one law clerk, Matthew C. Salmonsen
(“Salmonsen”) from November 2011 to October 2013. All are associated with the Consumer Law
Center, Inc. The total attorney’s fees requested by Plaintiffs ($59,832.50) also includes fees for the
additional 11.5 hours Roulston claims he spent in reviewing NFLS’s opposition, drafting the reply,
and preparing for the upcoming hearing. Reply at 18-19; ECF No. 100-1 at ¶ 13. Plaintiffs also
submitted an itemized bill as evidence of costs. ECF No. 90-2 at 20.
NFLS disputes the fees amount Plaintiffs should recover, arguing that only a maximum of
$21,997.50 could possibly be granted and that in fact, only $6,000 in fees should be awarded.
Opp’n at 15. Defendant also argues that only $590.56 costs should be awarded. Supp. Memo. at 5.
Below, the Court concludes that Plaintiffs should be awarded $57,467.50 in attorney’s fees and
$1,285.41 in costs, for a total award of $58,752.91.
A.

Attorney’s Fees
1.

Reasonableness of Hours

The party seeking fees bears the initial burden of establishing the hours expended litigating
the case and must provide detailed time records documenting the tasks completed and the amount
of time spent. Hensley v. Eckerhardt, 461 U.S. 424, 434 (1983); Welch v. Met. Life Ins. Co., 480
F.3d 942, 945–46 (9th Cir. 2007). “Where the documentation of hours is inadequate, the district
court may reduce the award accordingly.” Hensley, 461 U.S. at 433. The district court may also
exclude any hours that are excessive, redundant, or otherwise unnecessary. Hensley, 461 U.S. at
434. After the party seeking fees has come forward with its evidence supporting the time billed,
“[t]he party opposing the fee application has a burden of rebuttal that requires submission of

28
7
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

evidence to the district court challenging the accuracy and reasonableness of the hours charged or
the facts asserted by the prevailing party in its submitted affidavits.” Gates, 987 F.2d at 1397–98.
Here, Plaintiffs submit various declarations, as well as an itemized billing statement, noting
that Schwinn expended 37.7 hours, Roulston expended 110.1 hours, and Salmonsen expended 36.5
hours in preparing for this case. ECF No. 90 at 5; ECF Nos. 90-1, 90-3, 90-4, 90-5. In their Reply
brief and supplemental declaration by Roulston, Plaintiffs further note that Roulston spent an
additional 11.5 hours reviewing Defendant’s opposition and drafting the Reply and preparing for
the hearing on this motion. Reply at 18-19; ECF No. 100-1. These sorts of declarations have been
held by the Ninth Circuit to be “satisfactory evidence” of prevailing market rates for attorney’s
hourly rates. Camacho, 523 F.3d at 980. Thus, Plaintiffs’ declarations satisfy their initial burden of
producing evidence demonstrating the reasonableness of their requested fee. The burden thus shifts
to Defendant to submit “evidence ... challenging the accuracy and reasonableness of the ... facts
asserted by the prevailing party in its submitted affidavits.” Id.
Defendant argues Plaintiffs’ fees are “excessive” and “unreasonable” and that the Court
should either reduce or eliminate them. See generally Opp’n. The Court reviews each of
Defendant’s sixteen objections in numbered order below to determine whether Defendant has met
its burden to rebut the reasonableness of the hours claimed. Camacho, 523 F.3d at 980.
Before addressing Defendant’s arguments, the Court notes that Defendant requests judicial
notice of three exhibits. ECF No. 94-2 (Exhibit 1(A)); ECF No. 94-3 (Exhibit 1(B); ECF No. 94-4
(Exhibit 1(C)); ECF No. 94 (Request for Judicial Notice). NFLS has converted the Plaintiffs’
Invoice into an exhibit for each individual biller: Exhibit 1(A) (Schwinn); Exhibit 1(B) (Roulston);
Exhibit 1(C) (Salmonsen). NFLS has also numbered each biller’s time entries within each exhibit.
NFLS uses these exhibits as a citing system throughout its Opposition to alert the Court to which
fee entry Defendant objects. While Plaintiffs do not indicate any opposition to the request for
judicial notice, the Court denies the request because Defendant’s exhibits contain other notations
such as pen marks and thus the exhibits contain some information that is not “‘generally known’
under Rule 201(b)(1) or ‘capable of accurate and ready determination by resort to sources whose

28
8
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5

accuracy cannot be reasonably questioned’ under Rule 201(b)(2).” United States v. Ritchie, 342
F.3d 903, 909 (9th Cir. 2003). Nonetheless, the Court utilizes Defendant’s exhibits as a citation
system throughout this Order, for purposes of identifying to which fee entry Defendant obects. This
is because Plaintiff’s Invoice does not number the fee entries. The Court now addresses each of
Defendant’s specific objections below.

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14

(1) NFLS notes that this Court granted Nationwide Legal summary judgment, and
subsequently entered judgment in Nationwide Legal’s favor. Opp’n at 3 (citing ECF Nos. 79 &
89). Defendant then objects because Plaintiffs’ fee request inappropriately includes “all fees for
prosecution against” Nationwide Legal, not just against NFLS. Id. at 3, 6. Accordingly, NFLS
argues that all of Plaintiffs’ fee requests “at a minimum must be divided by fifty percent[.]” Opp’n
at 1-2. NFLS appears to argue that because Plaintiff’s claim against Nationwide Legal failed,
Plaintiff may not recover fees from NFLS for any work done in connection with that claim, and
that as a punitive measure for even requesting fees for work associated with Nationwide Legal, all
of Plaintiffs’ fee requests should be cut in half.1

15
16
17
18
19
20
21

Where a plaintiff attains only partial success throughout the court proceedings, the court
must apply a two-part analysis. First, the court asks whether the claims upon which the plaintiff
failed to prevail were related to the plaintiff’s successful claims. If unrelated, the final fee award
may not include time expended on the unsuccessful claims. Hensley, 461 U.S. at 434–35. The
Hensley Court noted that “there is no certain method of determining when claims are ‘related’ or
‘unrelated.’” Id. at 437 n.12. However, generally, related claims will involve “a common core of
facts or will be based on related legal theories,” while unrelated claims will be “distinctly

22
1

23
24
25
26
27
28

Specifically, NFLS objects to the following entries in Exhibit 1(A): (1) #75 (deposition of
Nationwide Legal), (2) #209 (Schwinn “receiving and reviewing” the judgment entered in favor of
Nationwide Legal); (3) #43-#46 (interrogatories and requests for production to both NLFS and
Nationwide Legal). Opp’n at 17. Defendant also objects to #91 and #94 of Exhibit 1(B) (Roulston
preparing for and attending the deposition of Nationwide Legal). Id. Defendant also objects to all
work done in connection with Plaintiffs’ summary judgment motion against Nationwide Legal and
Nationwide Legal’s summary judgment motion against Plaintiffs. Opp’n at 6 (objecting to 36
entries in the Invoice); Opp’n at 16 (objecting to #138, #139, #155, #174 in Exhibit 1(C))
(Salmonsen reviewed depositions in preparation for motions for summary judgment and helped
“proof” the “table of cases/footnotes” in the motion).
9
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

different,” both legally and factually. Id. at 435; Webb v. Sloan, 330 F.3d 1158, 1169 (9th Cir.
2003). “The focus [of this analysis] is on whether the unsuccessful and successful claims arose out
of the same ‘course of conduct.’” Webb, 330 F.3d at 1169. Other factors informing the issue of
relatedness are “whether the unsuccessful claims were presented separately, whether testimony on
the successful and unsuccessful claims overlapped, and whether evidence concerning one issue was
material and relevant to other issues.” Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.
1986). In related cases, an attorney’s time is “devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a claim-by-claim basis,” and “[s]uch a lawsuit cannot
be viewed as a series of discrete claims.” Hensley, 461 U.S. at 435. The Ninth Circuit has
generously applied Hensley’s test of relatedness, holding that claims are “related if either the facts
or the legal theories are the same.” Webb, 330 F.3d at 1169 (emphasis in original).2

12
13
14
15

If the unsuccessful and successful claims are related, then the court must apply the second
part of the analysis, in which the court evaluates the “significance of the overall relief obtained by
the plaintiff in relation to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at
435. Such decisions are within the district court’s discretion. Id. at 437.

16
17
18
19
20
21
22
23
24
25
26
27
28

Here, the Court finds that Plaintiffs’ claims against Nationwide Legal, which failed at
summary judgment, were “related” to their claims against NFLS because they involved not only a
“common core of facts” but were also “based on related legal theories.” Id. at 435. Plaintiffs’ entire
complaint was born out of the same set of circumstances and facts, as all of the claims arose from
the same alleged attempts by Defendants to collect their outstanding debt. Plaintiffs alleged that
NLFS, Nationwide Legal, and their mutual employee/agent Railey were all liable for composing
and selling fraudulent proof of service of summons documents in an attempt to collect their alleged
debts. Thus, the “unsuccessful and successful claims arose out of the same” alleged “course of
conduct.” Webb, 330 F.3d at 1169. Second, the claims were also based on the related legal theories,
as all of Plaintiffs’ claims against NFLS, Railey, and Nationwide Legal alleged violations of the
2

District courts in the Ninth Circuit apply this two-part test in awarding attorneys’ fees under the
FDCPA. See, e.g., Schueneman v. 1st Credit of Am., LLC, No. C 05 4505 MHP, 2007 WL
1969708, at *6 (N.D. Cal. July 6, 2007); Hooper v. Capital Credit & Collection Servs., Inc., No.
Civ. 03–793 PA, 2005 WL 1899380, at *1 (D. Or. Aug. 8, 2005).
10
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15

FDCPA, RFDCPA, and UCL, and were advanced with the common goal of holding Defendants
accountable for their illegal collection practices. Third, Plaintiffs alleged that Nationwide Legal
and NFLS were joint venturers and alter egos, and thus had to utilize discovery to assess the
relationship between the two entities. The Court ultimately found that Plaintiffs had “not raised a
triable issue of fact that Nationwide is directly liable for the actions of Railey or that Nationwide is
an alter ego or joint venturer of NLFS.” ECF No. 79 at 12. Regardless of the Court’s final decision,
it appears that the Plaintiffs’ attorneys could not be faulted for being “devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”
Hensley, 461 U.S. at 435. Finally, the Court notes that the time spent on the unsuccessful claims
against Nationwide Legal seems to have contributed to the success of the prevailing claim against
NFLS. See Cabrales v. City of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991) (“[E]ven if a
specific claim fails, the time spent on that claim may be compensable, in full or in part, if it
contributes to the success of the other claims.”)3 This is because the Court’s summary judgment
order, which narrowed the potential scope of liability for Railey’s acts to NLFS, likely was a factor
influencing NFLS’s decision to make a Rule 68 offer rather than risk trial.

16
17
18
19
20

Given that the unsuccessful and successful claims are related, the Court evaluates the
“significance of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.” Hensley, 461 U.S. at 435. The Court finds that the relief Plaintiffs
attained – the maximum statutory damages against NFLS for their federal and state claims ($2000
per Plaintiff)4 – was sufficiently commensurate with the hours expended on the litigation, and thus

21
22
23
24
25
26
27
28

3

The court in Cabrales awarded attorney’s fees even for time spent on issues upon which Plaintiff
ultimately did not prevail. Cabrales v. City of Los Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991).
The court reasoned that it is rare for a litigant not to lose any battles on their way to winning the
war. Id. at 1053. In fact, the court held losing is an integral part of winning. Id. As such, a plaintiff
who is unsuccessful in a stage of litigation that was a necessary step to the ultimate victory is
entitled to attorney’s fees even for the unsuccessful stage. Id. The court reasoned that if the rule
were otherwise, attorneys would only take claims they were certain of winning. Id.
4
Under the FDCPA, a plaintiff may recover statutory damages of up to $1,000, and under the
Rosenthal Act, a plaintiff may recover statutory damages for a willful and knowing violation in an
amount not less than $100 but not greater than $1,000. 15 U.S.C. § 1692k(a)(2)(A); Cal. Civ. Code
§ 1788.30(b).
11
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2

the Court rejects NFLS’s request to deduct fees incurred in connection with claims against
Nationwide Legal simply because Nationwide Legal prevailed.

3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

NFLS raises the same argument as to Defendant Railey, whom Plaintiffs voluntarily
dismissed without prejudice, ECF No. 86, and argues that no fees incurred in connection with
Railey’s liability should be granted. Opp’n at 13-14.5 Plaintiffs respond that “Railey’s role was an
important part of the litigation[.]” Reply at 17. Like the analysis above with respect to Nationwide
Legal, the Court similarly finds that the claims against Railey and NFLS were sufficiently related
as to warrant rejection of Defendant’s argument for reduction of fees. Because both the Plaintiffs
and the Court had to assess the relationship between NFLS and Railey – i.e., whether and to what
extent “NLFS exerted sufficient control over Railey,” ECF No. 79 at 15, such that it could be held
vicariously liable for Railey’s actions – the claims against both Railey and NFLS were related.

12
13
14
15
16
17
18

(2) The Court moves on to Defendant’s second objection. Defendant objects to #200, #202,
#203 of Exhibit 1(B) (Roulston drafting notice of acceptance of offer of judgment, reviewing order
by Court to file a status report, and drafting the status report), because they “occur[ed] after
acceptance of the Rule 68 offer.” Opp’n at 17. Defendant objects to #208 and #210 of Exhibit 1(A)
(Schwinn drafting bill of costs and revising final billing statement regarding attorney’s fees
motion) also because they occurred “after acceptance.” Opp’n at 19. The Court accepts
Defendant’s argument in part.

19
20
21
22
23
24
25
26
27
28

5

Defendant objects specifically to (1) fees for Roulston’s “recei[pt] and review” of the Court’s
“order to file status report” on September 27, 2013 concerning Railey, Exhibit 1(B) at #202; (2)
Plaintiffs’ October 11, 2013 filing of a status report concerning Eric Railey, Exhibit 1(A) at #204;
(3) Plaintiffs’ “notice of voluntary dismissal without prejudice as to Defendant Railey,” Exhibit
1(A) at #206; (4) #134 and #137, Exhibit 1(B) (Roulston reviewing two emails concerning
deposition of Railey); (5) #28, Exhibit 1(A) (Schwinn drafting documents in connection with
“summons returned executed as to Caesar Eric Railey); (6) #32 of Exhibit 1(A) (Schwinn drafting
request for entry of default against Railey); and (7) #41 of Exhibit 1(A) (Schwinn reviewing entry
of default as to Railey), #205 of Exhibit 1(A) (Schwinn reviewing order by the Court to file motion
for default judgment as to Railey). Opp’n at 14, 19. Defendant also objects to #27 and #29 and
#207 of Exhibit 1(A) (Schwinn reviewing order reassigning case to the undersigned Judge,
reviewing clerk’s notice setting case management conference, and reviewing judgment against
NLFS, ECF No. 87) because they are matters “pertaining to Railey,” Opp’n at 19, but they are not.
12

Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Defendants made the offer of judgment on September 25, 2013. ECF No. 81-1 at 1.
Plaintiffs accepted on September 26, 2013. ECF No. 81. The offer explicitly stated that Plaintiffs
would be awarded their costs and attorney’s fees “incurred to the date of this Offer of judgment.”
ECF No. 81-1 at 2. The offer also stated, “The only exception as to this offer limiting fees and
costs to the date of this offer is that this Rule 68 offer does not preclude plaintiffs from requesting
an award of reasonable attorney’s fees for time expended for their motion for attorney’s fees.” Id.
Because entries #200, #202, and #203 of Exhibit 1(B) were done after the date of the offer of
judgment (on September 26, 2013, September 27, 2013, and October 9, 2013 respectively),
Plaintiffs cannot be compensated for them, pursuant to the unambiguous terms of the offer.
Therefore, the Court deducts $90 in fees that were incurred for those three entries. The Court,
however, does not deduct fees stemming from entries #208 and #210 because they fall within the
exception stated in the offer, as they reasonably relate to the Plaintiffs’ motion for attorney’s fees.
(3) Defendant objects to #21 and #24 of Exhibit 1(A) (Schwinn explaining ADR options to
Plaintiff Long and reviewing email from defense counsel concerning stipulation for ADR process)
because “Mr. Schwinn did not return telephone calls and did not ever communicate to engage in
ADR Process.” Opp’n at 18. The Court rejects Defendant’s argument because it appears that
Plaintiffs’ counsel did consider ADR options, illustrated by the billing entry where they explained
the option to their client.
(4) Defendant objects to #84, #85, and #86 of Exhibit 1(B) (Roulston drafting and making
telephone calls concerning deposition scheduling and notices) because Mr. Schwinn “was also
communicating and sending notices of depositions.” Opp’n at 17. The Court rejects this argument
because Defendant supplies no principled reason to reduce Plaintiffs’ fee on the basis of alleged
unnecessary duplication, the notices sent by both Roulston and Schwinn do not appear to be
duplicative, and in any event, “[i]t is not uncommon for multiple attorneys working on a matter to
appear at depositions, [and] participate in deposition preparation[.]” Lota by Lota v. Home Depot
U.S.A., Inc., 11-CV-05777-YGR, 2013 WL 6870006, at *10 (N.D. Cal. Dec. 31, 2013).

27
28
13
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5

(5) Defendant objects to #121 and #129 of Exhibit 1(B) (Roulston reviewing deposition of
Nationwide Legal’s 30(b)(6) witness and taking telephone call with defense counsel regarding
document production) because “both Nationwide and NLFS agreed to provide documents by CD.”
Opp’n at 17. The Court rejects this argument because it is cursory and unexplained, and because
both reviewing a deposition and discussing discovery with opposing counsel is compensable.

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

(6) Defendant objects to #135, #136, #148, and #149 of Exhibit 1(B) (emails by Roulson to
defense counsel concerning settlement discussions) because those “did not occur.” Opp’n at 17.
The Court rejects this objection; Defendant has failed to carry its burden because Plaintiffs submit
a declaration by Roulston suggesting that such settlement discussions did occur. ECF No. 100-1 at
¶ 9.
(7) Defendant objects to #97 and #104 of Exhibit 1(C) (Salmonsen attending two
depositions of Nationwide Legal as the videographer). Defendant argues “it is inappropriate to
charge NLFS . . . 175 per hour to have some person set up a home video camera on a tripod. Such
acts are done by counsel and are checked from time to time without incurring fees of $175 per
hour.” Opp’n at 16. Plaintiffs respond that this time is “reasonable and compensable.” Reply at 1415. The Court agrees with Defendant and finds that the 13 hours Salmonsen spent videotaping the
two Nationwide Legal depositions is unreasonable. The Court acknowledges that fees for law
clerks and paralegals are compensable as attorney’s fees. See Missouri v. Jenkins, 491 U.S. 274,
284–85 (1989) (holding it is “self-evident ... that the ‘reasonable attorney’s fee’ provided for by
statute should compensate the work of paralegals [and law clerks], as well as that of attorneys”);
Santiago v. Equable Ascent Fin., No. 11–3158, 2013 WL 3498079, at *4 (N.D. Cal. July 12, 2013)
(applying Jenkins in the FDCPA fees context). However, attorney’s fees may not be awarded for
work that is clerical rather than legal in nature. See Nadarajah v. Holder, 569 F.3d 906, 921 (9th
Cir. 2009) (“When clerical tasks are billed at hourly rates, the court should reduce the hours
requested to account for the billing errors.”); see also Jenkins, 491 U.S. at 288 n.10 (1989)
(“[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who
performs them.”). Here, it is not clear that videotaping the depositions was anything more than a

28
14
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

purely clerical task. Although Plaintiffs claim that Salmonsen “assisted counsel” with the
deposition and its “200 pages of exhibits,” Reply at 14-15, Plaintiffs do not explain what additional
services Salmonsen performed beyond videotaping. Accordingly, the Court declines to award
attorney’s fees for the 13 hours Salmonsen spent videotaping the depositions. The Court thus
subtracts $2,275 from the award.
(8) Defendant objects to #176, #178, #179, and #182 of Exhibit 1(B) (Roulston emailing
defense counsel concerning a stipulation to continue the trial date) because “the request was
prompted by Mr. Roulston, and [defense counsel] prepared the stipulation at no charge to his
client.” Opp’n at 17. Defense counsel presents no evidence that he prepared the stipulation, and
Plaintiffs’ counsel claims that Plaintiffs’ counsel drafted it. Reply at 16. Regardless, the Court finds
that the fifty minutes spent by Roulston reviewing and discussing this stipulation is reasonable.
(9) Defendant objects to #186, #187, #188, #189, #190, #191, #192, #193, #194, #195,
#197, and #199 of Exhibit 1(B) (Roulston making various email and telephone communications
with defense counsel and his clients concerning Defendant’s Rule 68 offer) because they “appear to
be overbilling, extraneous billing, and internal communications as to the Rule 68 offer.” Opp’n at
17. The Court rejects this objection because there is no evidence of undue overbilling and
Defendant does not explain how Plaintiffs overbilled; this time is compensable as it directly led to
the resolution of the case.
(10) Defendant objects to various entries in Exhibit 1(A) concerning Schwinn’s billing.
These include #4 (calling Plaintiff Long and explaining that two other people want to join the case
as plaintiffs), #12 (taking telephone call from defense counsel and agreeing to allow Defendants an
extension of time to file their Answer), #18 (receiving and reviewing Notice of Appearance), #25
(drafting declination to proceed before Magistrate Judge), #33 (reviewing email from defense
counsel to the undersigned Judge’s chambers regarding request for a telephonic appearance to
attend case management conference), #48 (drafting letter to defense counsel regarding discovery
reminder), #50 (reviewing defense counsel’s letter regarding meet and confer), #60 (reviewing
Order granting Defendant’s request to appear telephonically), #98 (telephone call between Schwinn

28
15
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

and Roulston concerning defense counsel’s “excessive speaking objections” during depositions),
#177 (reviewing notice vacating motion hearing for summary judgment), and #43-46 (drafting
requests for production and interrogatories). Opp’n at 18-19. Defendant provides no rationale for
any of these objections, and thus they are denied.6 Defendant also objects to #166 of Exhibit 1(B)
(Roulston reviewing email from defense counsel concerning a one day extension for Defendants’
opposition to Plaintiffs’ motion for summary judgment), but does not provide any rationale for the
objection. Opp’n at 17. Accordingly, the Court rejects the objection. While the Court notes that
billing ten minutes for each of #60 and #177 in Exhibit 1(A) may seem excessive at first blush,
Plaintiffs do not indicate that they did not charge for other comparable entries, see generally
Invoice, and thus the Court finds that Plaintiffs’ decision to bill some of the smaller tasks Plaintiffs
completed is reasonable.

12
13
14
15
16
17
18
19
20
21

(11) Defendant argues there is no evidence that the three Plaintiffs ever agreed or
committed to incur attorney’s fees in this case, and cites how Plaintiffs have not submitted any
evidence of any bills addressed to Isa, or Spies. Opp’n at 10 (noting how Plaintiffs’ Invoice
statement is directed to Plaintiff Long). The Court rejects this argument, as other courts have done,
because “California courts have routinely awarded fees to compensate for legal work performed on
behalf of a party pursuant to an attorney-client relationship, although the party did not have a
personal obligation to pay for such services out of his or her own assets.” Smith v. Santa Rosa
Press Democrat, No. C 11–02411 SI, 2011 WL 7777108, at *2 (N.D. Cal. Dec. 19, 2011) (citation
omitted); Lolley v. Campbell, 28 Cal.4th 367, 373 (2002) (“[I]t has been generally agreed that a
party may ‘incur’ attorney fees even if the party is not personally obligated to pay such fees.”).

22
23

(12) Defendant objects to #70, #71, #74-#79 of Exhibit 1(A) because they are “notices of
depositions of persons, former employees or present employees, who are not managers, whose

24
25
26
27
28

6

Defendant includes its argument for its objection to #43-#46 in its declaration accompanying the
opposition. ECF No. 93 at 2 (Declaration of Allen Hyman, defense counsel). Putting aside the fact
that including argument in an accompanying declaration is an impermissible violation of the page
limits on the opposition brief, Defendant’s argument fails on the merits because the only rationale
provided is the cursory argument that the interrogatories served on Defendants were “stock
interrogatories” and “duplicate as to Nationwide Legal and NLFS.” Id. at 3.
16
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

depositions were not taken.” Opp’n at 19. Plaintiffs respond that “time spent arranging deposition
of NLFS’s witnesses is compensable. NLFS listed these witnesses, and ultimately did not make any
but two available.” Reply at 17. The Court does not find these entries to be unreasonable.
(13) Defendant argues Plaintiffs’ counsel did not meet and confer with defense counsel
before filing the attorney’s fees motion. Opp’n at 3 (citing Local Rule 54-5(b)(1) which holds that
“[c]ounsel for the respective parties must meet and confer for the purpose of resolving all disputed
issues relating to attorney’s fees before making a motion for award of attorney’s fees.”). It is this
Court’s view that it is always the better practice to meet and confer before engaging in potentially
unnecessary motion practice. However, Plaintiffs attach a declaration in which Roulston states that
the parties had vigorous settlement discussions, and that the attorney’s fees motion was “the direct
result” of those discussions. ECF No. 100-1 at ¶ 9. Thus, it is not clear that Plaintiffs completely
disregarded their duty to “meet and confer.” In any event, Defendants have not cited any authority
holding that fees may be deducted on this basis. Thus, the Court will not deduct fees on this basis.
(14) Defendant argues that Plaintiffs’ Invoice does not summarize the tasks by timekeeper
as required under Local Rule 56-5(b)(2). Opp’n at 3. The Court rejects this argument because there
is no such local rule.
(15) Defendant argues that this lawsuit must have been brought for the sole purpose of
generating attorney’s fees. Opp’n at 7-10. Defendant notes that two of the plaintiffs (Long and Isa)
had brought their claims against a related defendant (Main Street Acquisition Corporation) in state
court, reached settlement agreements which released their consumer debts, and also notes how
Plaintiffs’ reply in support of Plaintiffs’ motion for summary judgment in the instant federal case
explicitly withdrew Long and Isa’s claims for actual damages. Id. Accordingly, Defendant argues
that in light of how Plaintiffs could not recover actual damages in this case and the fact that
Plaintiffs could only have recovered a maximum of statutory damages of $2,000 each, there could
have been no incentive for Plaintiffs themselves to bring this lawsuit. Id. Defendant does not state
whether this argument means there should be a reduction of fees or no fees awarded at all.
Plaintiffs respond that the settlements in the state court actions against another defendant is

28
17
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

irrelevant to Plaintiffs’ claims against NLFS in the instant case. Reply at 11. The Court agrees, and
thus rejects Defendants’ argument.
(16) Though not completely clear, it appears Defendant argues that attorney’s fees should
be limited because the possibility of recovering only the statutory maximum of $2,000 per plaintiff
is far less than the amount of attorney’s fees incurred. See Opp’n at 5, 9. The Court rejects this
argument, even if made, because district courts have been reluctant to reduce damages on the basis
of a low monetary recovery in FDCPA cases, recognizing that statutory damages are capped. Kottle
v. Unifund CCR, LLC, 2014 WL 243140, at *2 (C.D. Cal. Jan. 13, 2014) (awarding $10,782 in
attorney’s fees based on $2001.00 recovery and recognizing that because “there rarely will be
extensive damages, a rule of proportionality would discourage vigorous enforcement of the
FDCPA.”)
2.

Reasonableness of Hourly Rate

The Court now assesses the reasonableness of the hourly rate for each lawyer and the law
clerk for Consumer Law Center. Plaintiffs request fees based on an hourly rate of $450 per hour for
Schwinn, ECF No. 90-1 at 8, $300 per hour for Roulston, ECF No. 90-3 at 4, and $175 per hour for
Salmonsen, ECF No. 90-1 at 9. It is unclear whether Defendant argues these rates are unreasonable
or simply that the hours spent were unreasonably long, or both, as Defendant simply argues that
“the fee motion does not support a reasonable loadstar of ‘reasonable time expended,’ by a
‘reasonable hourly rate.’” Opp’n at 14. Nonetheless, the Court reviews the hourly rates of each
individual to ensure that the requested rates are “in line with the prevailing market rate of the
relevant community.” Carson, 470 F.3d at 891 (internal quotation marks omitted).
In support of Schwinn’s rate of $450 per hour, Plaintiffs offer Schwinn’s declaration. ECF
No. 90-1 (“Schwinn Decl.”). Schwinn states this rate is “comparable to the rates being charged by
attorneys of similar experience and expertise in the San Francisco Bay Area’s federal and state
courts,” that he has a wealth of experience in federal FDCPA litigation stemming from his former
Kansas practice and current California practice, and provides an extensive list of the consumer
protection cases he has handled before various courts. Id. at ¶¶ 5-10, 12. Schwinn further states that

28
18
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

several courts in the Bay Area have approved a $400 per hour rate for his work. Id. ¶ 13. Plaintiffs
also submit the expert declaration of Ronald Wilcox (“Wilcox”), another consumer protection
attorney, in support of Schwinn’s $450 rate. See ECF No. 90-4 ¶ 14 (Wilcox Decl.) (stating that the
“market rate in the San Francisco Bay Area for state and federal litigation of consumer law issues
that are similar in difficulty and complexity to the issues herein is a range extending from $300 to
$600+ per hour, depending on the skill, experience and reputation of the attorney”); id. at ¶ 17
(noting that Schwinn’s rate of $450 is reasonable). Plaintiffs also offer the declaration of Scott
Maurer, another consumer protection attorney, who declares that Schwinn’s rate is reasonable.
ECF No. 90-5 at ¶ 6.
In support of Roulston’s requested rate of $300 per hour, Plaintiffs provide Roulston’s
declaration in which he says that $300 per hour is “comparable to the rates being charged by
attorneys of similar experience and expertise in California’s federal and state courts.” ECF No. 903 ¶ 10 (Roulston Decl.). Roulston states he has seven years of experience in consumer protection
cases and that $300 per hour has been the rate his firm, Consumer Law Center, charges its clients
for his services. Id. at ¶¶ 4-10. Wilcox also supports the reasonableness of the rate sought by
Roulston, given Roulston’s experience and qualifications. Wilcox Decl. at ¶ 18.
The Court concludes Plaintiffs have met their burden to show that Roulston and Schwinn’s
requested rates fall within the range of reasonable hourly rates for attorneys of comparable skill,
experience, and reputation litigating similar cases in this Court’s jurisdiction. “A court is justified
in relying on a requesting counsel’s recently awarded fees when setting that counsel’s reasonable
hourly rate.” Abad v. Williams, Cohen & Gray, Inc., No. 06–2550, 2007 WL 1839914, at *4 (N.D.
Cal. June 26, 2007) (citing Widrig v. Apfel, 140 F.3d 1207, 1210 (9th Cir. 1998). Here, in addition
to the fact that Plaintiffs have provided various affidavits in support, courts within this district have
recently found that the rates of $450 per hour for Schwinn and $300 per hour for Roulston are
reasonable and within the prevailing market rates for this district for attorneys with comparable
skills and experience. Tsoi v. Patenaude & Felix, et al., Case No. 3:13-CV-00143-SI, 2014 WL
1477521, at *3 (N.D. Cal. April 15, 2014) (“[T]he Court finds that the requested rates of $450 per

28
19
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

hour for Mr. Schwinn and $300 per hour for Mr. Roulston are reasonable and within the prevailing
rates in the Northern District.”); see also DeAmaral, 2014 WL 1309954, at *3 (“$450 per hour and
$350 per hour for Mr. Schwinn and Mr. Roulston, respectively, are within the range of reasonable
hourly rates for attorneys of comparable skill, experience, and reputation litigating similar cases in
this jurisdiction.”).
In support of their request that Salmonsen, a law clerk, receive a rate of $175 per hour,
Plaintiffs submit Schwinn’s declaration, which states that Salmonsen graduated in 2009 from law
school and has held the position of law clerk since May 2010. Schwinn Decl. at ¶ 14. Plaintiffs also
argue that the Laffey matrix has a rate of $175 per hour for law clerks. Mot. at 8. The Laffey matrix
is “an inflation-adjusted grid of hourly rates for lawyers of varying levels of experience in
Washington, D.C.” Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 2010). The
Ninth Circuit has rejected its adoption to set rates in the Northern District of California. See id.
(questioning whether Laffey matrix is reliable outside the District of Columbia); Am. Civ. Liberties
Union of N. California v. Drug Enforcement Admin., C 11-01997 RS, 2012 WL 5951312, at *5
(N.D. Cal. Nov. 8, 2012). This is because reasonable fees “are to be calculated according to the
prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984).
The “relevant community” is the district in which the lawsuit proceeds; here, the Northern District
of California. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). Nonetheless, the Court
approves the rate of $175 for Salmonsen. Although Plaintiffs have not submitted any evidence
reflecting the rates charged by similarly qualified clerks at local law firms, this Court may rely on
decisions of other courts awarding similar rates for comparable work in the same geographical
area. See, e.g., Nadarajah v. Holder, 569 F.3d 906, 917 (9th Cir. 2009). Other courts have found
the $175 rate reasonable, and this Court sees no reason to disagree. See Californians for Disability
Rights v. California Dept. of Transp., C 06-05125 SBA MEJ, 2010 WL 8746910, at *13-14 (N.D.
Cal. 2010), report and recommendation adopted sub nom. Californians for Disability Rights, Inc.
v. California Dept. of Transp., C 06-5125 SBA, 2011 WL 8180376 (N.D. Cal. Feb. 2, 2011)
(finding rate of $175 reasonable for a law clerk).

28
20
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1

3.

2
3

Lodestar for Fees

With the exceptions discussed above, the Court finds that the hours Plaintiffs claim are
reasonable. As such, the Court calculates the lodestar as follows:

4
5
6
7

Attorney
Fred W. Schwinn
Raeon R. Roulston
Matthew C. Salmonsen
Total

Rate
$450 per hour
$300 per hour
$175 per hour

Hours
37.7
121.3
23.57
182.5

Lodestar
$16,965
$36,390
$4,112.50
$57,467.50

8

B.

Costs

9

Plaintiffs also seek an award of costs and litigation expenses in the amount of $4,551.46,

United States District Court
For the Northern District of California

10

which represents the following: (1) $350 in filing fees; (2) $173.80 in photocopying; (3) $17.65 in

11

postage expense; (4) $14.47 in overnight delivery expense; (5) $2,721.05 in court reporter fees for

12

transcripts; (6) $369.60 in mileage expense; (7) $560.89 in travel expenses; (8) $149.00 in research

13

expenses; and (9) $195.00 in process server fees. ECF No. 90-1 at 10. To support this claim,

14

Plaintiff provided an itemized list of costs. ECF No. 90-2 at 20. Defendant objects, stating that only

15

$590.56 costs should be awarded, and raise various specific objections. See Opp’n at 13, 15; Supp.

16

Memo. at 5. Courts have “wide discretion” in determining whether and to what extent prevailing

17

parties may be awarded costs, K–S–H Plastics, Inc. v. Carolite, Inc., 408 F.2d 54, 60 (9th Cir.

18

1969), but must specify reasons for refusing to award costs. Ass'n of Mexican–Am. Educators v.

19

State of Cal., 231 F.3d 572, 591–92 (9th Cir. 2000) (citation omitted). Below, the Court addresses

20

each of Defendant’s five arguments.
First, Defendant argues that the requested filing fees, process server fees, and court reporter

21
22

fees “precisely duplicate the already submitted cost bill.” Opp’n at 2; Supp. Memo at 3. While

23

Plaintiffs argue “there is no double counting,” Reply at 5, Defendant is correct. The Clerk of the

24

Court has already granted Plaintiffs’ request for $3,266.05 in costs. ECF No. 91. This amount

25
7

26
27
28

The Court notes that this figure includes time Roulston spent reviewing Defendant’s Opposition
to the Motion for Attorney’s Fees and Costs, preparing the Reply, and preparing for the hearing.
See Reply at 18-19. This is because an FDCPA plaintiff may recover reasonable fees for “time
spent in establishing the entitlement to and amount of the fee.” Camacho, 523 F.3d at 981 (internal
quotation marks omitted).
21
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

covers the $350 filing fees, $195 fees for service, and $2,721.05 in transcript fees. Id. As these
costs are duplicative of costs that make up Plaintiffs’ $4,551.46 costs request, the Court reduces the
costs award to avoid duplicating costs already approved by the Clerk. Thus, the Court deducts
$3266.05 from Plaintiffs’ cost request.
Second, Defendant objects to (1) research expenses for investigating the identity of Railey;
(2) process server fees as to Railey; and (3) photocopying and postage expenses in connection with
the request for entry of default against Railey. Supp. Memo. at 4-5; Opp’n at 13. Defendant argues,
as it does in connection with opposing Plaintiffs’ attorney’s fees request, that Railey was dismissed
by Plaintiffs without prejudice. Defendant also (1) objects to copying costs (a total of $88.20) made
in connection with Defendants’ and Plaintiffs’ cross-motions for summary judgment, arguing that
only half that amount is warranted because Nationwide Legal prevailed on summary judgment,
Supp. Memo. at 4-5; and (2) objects to fees for service of process as to Nationwide Legal. Id.
Again, as set forth in the attorney’s fees section above, the Court does not find Defendant’s
argument concerning work done with respect to Railey and Nationwide Legal convincing, and will
not deduct any of these costs.
Third, Defendant objects to overnight delivery expenses of $14.47 made in connection with
“deposition notices served on Allen Hymen,” who is defense counsel, because Plaintiffs “provided
notices of depositions of former employees and non-managerial employees which they did not
subpoena or take.” Supp. Memo. at 5. Plaintiffs rebut that “NLFS listed these witness [in its initial
disclosures], and ultimately did not make any but two available.” Reply at 12, 17. The Court does
not find these expenses unreasonable.
Fourth, Defendant objects to travel expenses incurred by Plaintiffs (mileage and hotel
expenses incurred in connection with depositions of Defendants’ 30(b)(6) witnesses in Los
Angeles) in the amount of $930.49 ($560.89 for two nights of hotel charges and $369.60 for
mileage). Supp. Memo. at 4. Defendant argues Plaintiffs have provided no invoice, and that
another hotel ten minutes away from the deposition location had room rates of only $150 per night.
Id. The Court rejects Defendant’s argument. Defendant does not at all explain why the mileage

28
22
Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS

1
2
3
4
5
6
7
8
9

expense is unreasonable, and the Court is not convinced by Defendant’s arguments concerning
Plaintiffs’ choice of hotel in light of how Plaintiffs’ chosen hotel was only half a mile away from
the deposition site. ECF No. 100-1 at ¶11 (Roulston Declaration). Further, Roulston declares that
he and Salmonsen shared a hotel room for two nights rather than booking separate rooms, which
shows conservation of financial resources. Reply at 18; ECF No. 100-1 at ¶ 11. See Davis v.
Hollins L., CIV. S-12-3107 LKK/A, 2014 WL 2875778, at *2 (E.D. Cal. June 24, 2014) (granting
travel expenses to Plaintiffs in FDCPA case, noting that “[t]o deny attorneys from outside this
judicial district the ability to recover their travel expenses may deter them from taking meritorious
cases within this district, which would be an undesirable result.”) .

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19

Finally, Defendant claims that copying costs cannot be granted generally because those “are
to be taxed as costs in the cost bill not as attorney’s fees.” Supp. Memo. at 5. However, courts do
award copying costs in FDCPA cases in connection with attorney’s fees motions, not just with a
bill of costs. See, e.g., Rivera v. Portfolio Recovery Associates, LLC, No. 13–2322 MEJ, 2013 WL
5311525, at *8 (N.D. Cal. Sept. 23, 2013); Scott v. Federal Bond and Collection Service, Inc., No.
10–2825 LHK, 2011 WL 3652531, at *4 (N.D. Cal. Aug 19, 2011).
IV.

CONCLUSION
Based on the reasons above, the Court GRANTS IN PART AND DENIES IN PART

Plaintiffs’ Motion for Attorney’s Fees and Costs. The Court awards Plaintiffs $57,467.50 in
attorney’s fees and $1,285.41 in costs, for a total award of $58,752.91.

20
21

IT IS SO ORDERED.

22

Dated: July 23, 2014

_________________________________
LUCY H. KOH
United States District Judge

23
24
25
26
27
28
23

Case No.: 12-CV-03578-LHK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES
AND COSTS