Brinker v. Normandin's

Filing 142

Order by Magistrate Judge Howard R. Lloyd granting in part 86 Motion for Reasonable Attorney Fees pursuant to Federal Rule of Civil Procedure 37. (hrllc3S, COURT STAFF) (Filed on 2/23/2017)

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E-filed 2/23/2017 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 ALAN BRINKER, et al. Plaintiffs, 10 United States District Court Northern District of California 11 12 13 v. NORMANDIN’S, et al., Case No. 14-cv-03007-EJD (HRL) ORDER GRANTING-IN-PART PLAINFIFF’S MOTION FOR REASONABLE ATTORNEY FEES Re: Dkt. No. 86 Defendants. 14 Following Discovery Dispute Joint Report 1 (“DDJR 1”), the court ordered Defendant 15 Normandin’s to produce certain documents by February 20, 2016. Dkt. No. 73. Normandin’s 16 failed to comply. Dkt. No. 103 at 1. Plaintiff Alan Brinker (“Brinker”) moved the court to 17 enforce its prior discovery order and to sanction Normandin’s for $20,725.00 of Brinker’s attorney 18 fees. Dkt. No. 86 at 2. In response, the court issued an interim order which directed Normandin’s 19 to comply with the court’s prior order, noted deficiencies with Brinker’s motion, and instructed 20 Brinker to submit additional information. Dkt. No. 103 at 1-2. In May of 2016, Brinker amended 21 the amount of his request to $11,658.50, Dkt. No. 105 at 1, and submitted itemized entries from 22 the timesheets of three Terrell Marshall Law Group PLLC (“TMLG”) attorneys: A. Janay 23 Ferguson (“Ferguson”), Adrienne D. McEntee (“McEntee”), and Kerem M. Levitas (“Levitas”). 24 Dkt. No. 107 at 26. Brinker also submitted timesheet entries for Rob Williamson of Williamson & 25 Williams, LLC (“Williamson”). Dkt. No. 108 at 2-3. 26 On February 17, 2017, Judge Davila issued an order dismissing the complaint in this action 27 without leave to amend on the basis that Plaintiffs failed to allege injuries sufficient to establish 28 standing. Dkt. No. 141. Such a dismissal does not, however, excuse disobedience of a discovery 1 order or terminate the court’s ability to rule on this motion.1 LEGAL STANDARD 2 Absent sufficient justification, a court must order a party that fails to comply with a court’s 3 4 discovery order “to pay the reasonable expenses, including attorney’s fees, caused by the failure.” 5 See Fed. R. Civ. P. 37(b)(2)(C). Courts in the Ninth Circuit calculate a reasonable attorney fee 6 using the lodestar method, multiplying “the number of hours . . . reasonably expended . . . by a 7 reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) 8 (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001)). A party must 9 demonstrate that the attorney fees it seeks are “in line with the prevailing market rate” in the district. See Carson v. Billings Police Dep’t, 470 F.3d 889, 891 (9th Cir. 2006). This typically 11 United States District Court Northern District of California 10 requires attorneys to file declarations demonstrating that the requested hourly rates are in accord 12 with “prevailing fees in the community[] and rate determinations in” similar cases. See United 13 Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). Litigants, ideally, 14 will provide evidence “in addition to” the declaration of an attorney whose own fee rate is at issue. 15 See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). But a district court may also rely “on its own 16 knowledge and experience” to set reasonable fee rates when a litigant submits inadequate 17 declarations. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). 18 DISCUSSION 19 No expense incurred prior to the February 20, 2016, deadline could be “caused by” 20 Normandin’s failure to comply with the court’s discovery order, as that failure had not yet 21 22 23 24 25 26 27 28 1 The Supreme Court has held “that motions for costs or attorney’s fees are ‘independent proceeding[s] supplemental to the original proceeding,’” and may survive the termination of a suit. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990) (quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 170 (1939)). “Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.” Id. at 396. The Ninth Circuit has applied this reasoning to other statutory fee provisions beyond Rule 11, Moore v. Permanente Med. Grp., Inc., 981 F.2d 443, 445 (9th Cir. 1992) (“an award of attorney’s fees is a collateral matter over which a court normally retains jurisdiction even after being divested of jurisdiction on the merits”), and the court sees no reason why it should not apply here. As with Rule 11 motions, the questions at issue here involve abuse of the judicial process (defendant’s failure to obey the court’s discovery order). 2 1 occurred. See Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir. 1981). Ferguson’s tasks dated 2 January 22, all of McEntee’s work, and three of Williamson’s four time entries precede the 3 compliance deadline. Dkt. No. 108 at 2-3; Dkt. No. 107 at 26. The court excludes this work from 4 the calculation of compensable expenses because it was not “caused by” Normandin’s 5 noncompliance. Fed. R. Civ. P. 37. Brinker has provided a total of ten time entries dated February 21, 2016, or later: one by 7 Williamson dated March 9, two by Levitas dated April 8, and seven by Ferguson dated between 8 February 26 and April 8. For two of these ten entries, the court cannot determine whether the 9 tasks and related expenses were caused by Normandin’s noncompliance. Ferguson’s March 18 10 and April 7 activities—“[r]eviewed and analyzed correspondence related to discovery issues”— 11 United States District Court Northern District of California 6 lack the specificity required to make them compensable under Rule 37. See Toth v. Trans World 12 Airlines, Inc., 862 F.2d 1381, 1386 (9th Cir. 1988). 13 The court is satisfied that Normandin’s noncompliance on February 20 caused Brinker to 14 incur the attorney fees detailed in the remaining eight entries. Williamson’s entry for 0.2 hours on 15 March 9 refers to a letter to Normandin’s counsel submitted with Ferguson’s initial declaration 16 that discusses defendant’s failure to comply with the order on DDJR 1. Dkt. No. 87, Ferguson 17 Decl., Ex. 3; Dkt. No. 108, Williamson Decl., ¶ 5. Ferguson’s itemized entries dated February 26, 18 March 3, March 8, March 15, and April 8 all explicitly involve either Normandin’s failure to 19 comply or Brinker’s motion seeking reasonable attorney fees. Dkt. No. 107 at 26. These entries 20 total 5.6 hours at an hourly rate of $500. And according to the Ferguson declaration, TMLG 21 associate Levitas also worked on Brinker’s fee motion for a total of 1.1 hours at an hourly rate of 22 $275. Id. Reasonable attorney fees and costs incurred in connection with a party’s motion for 23 attorney fees are compensable under Rule 37. See Avago Technologies, Inc. v. IPtronics, Inc., No. 24 5:10-cv-02863-EJD, 2015 WL 2395941, at *5 (N.D. Cal. 2015). Considering the amount of time 25 expended by attorneys preparing similar motions in other cases, the court is satisfied that Brinker’s 26 counsel reasonably spent 6.9 hours drafting and reviewing the five-page motion, the 27 accompanying declarations, and the associated correspondence. See Pinterest, Inc. v. Pintrips, 28 Inc., No. 13-cv-04608-RS (KAW), 2015 WL 154522, at *6 (N.D. Cal. 2015). 3 1 Ferguson declares that she is Of Counsel with TMLG, Dkt. No. 87 at 1, and that she earned 2 her J.D. from Seattle University School of Law, id. at 4. Ferguson has at least seven years of 3 practice experience, plus an unspecified amount of time spent in her current position with TMLG. 4 Dkt. No. 106 at 9. Ferguson offers only one example of a Northern District court approving 5 “TMLG’s standard billing rates” as reasonable and no examples of a Northern District court 6 approving the specific rates at issue here. See Dkt. No. 107 at 2. Similarly, Williamson, an 7 attorney with over twenty years of experience, offers only cases from the Western District of 8 Washington to support his claimed rate of $760 per hour. Dkt. No. 108 at 2. The court will not 9 apply Brinker’s inadequately supported rates; the undersigned instead relies upon other Northern District cases, his own knowledge and experience, and “the Laffey matrix, a widely recognized 11 United States District Court Northern District of California 10 compilation of attorney and paralegal rates based on various levels of experience.” Theme 12 Promotions, Inc. v. News Am. Mktg. FSI, Inc., 731 F. Supp. 2d 937, 948 (N.D. Cal. 2010). 13 Adjusting the figures in the traditional Laffey matrix—which was initially created for cases in 14 Washington, DC and Baltimore—upward by 9% creates a “locality-adjusted Laffey matrix” 15 tailored to the San Francisco Bay Area. See id. at 950. 16 The undersigned sets “a billing rate of $400.00 per hour” as a reasonable rate for Ferguson, 17 an attorney with at least seven years of experience. See Berry v. Urban Outfitters Wholesale, Inc., 18 No. 13-cv-02628-JSW, 2015 WL 580579, at *4 (N.D. Cal. 2015). The rate of $400 per hour “is 19 reasonable, as it is in line with not only other awards in this district, but also with the Adjusted 20 Laffey Matrix.” Id. Levitas, meanwhile, is an Associate with TMLG and a 2009 graduate of the 21 University of Washington School of Law. Dkt. No. 87 at 4. Brinker’s declarations do not specify 22 the number of years of practice experience Levitas has, see Dkt. No. 106 at 10, or provide 23 evidence to support the rate Brinker suggests. Turning to recent cases in the Northern District, the 24 Adjusted Laffey Matrix benchmark, and its own knowledge, the court sets $250 as a reasonable 25 hourly rate for an associate with 1-3 years of experience. Trustees of the N. California Tile Indus. 26 Pension Trust Fund v. Premier Stone & Tile, Inc., No. 14-cv-03560-WHO, 2016 WL 1182060, at 27 *7 (N.D. Cal. 2016). Finally, the court sets $650 as a reasonable rate for Williamson, an attorney 28 with more than 20 years of experience. See id. These rates and the hours claimed yield total 4 1 reasonable attorney fees of $2,240.00, $275.00, and $130. 2 CONCLUSION 3 Brinker has shown 6.9 hours of billed work reasonably undertaken and caused by 4 Normandin’s noncompliance. Brinker has failed to show its requested fee rates are reasonable, but 5 the undersigned is nevertheless satisfied that it would be reasonable to compensate Ferguson’s 6 work at the rate of $400 per hour, Levitas’s work at the rate of $250 per hour, and Williamson’s 7 work at the rate of $650 per hour. The court therefore orders Normandin’s to pay Brinker his 8 reasonable attorney fees in the amount of $2,645.00. 9 10 IT IS SO ORDERED. Dated: 2/23/2017 United States District Court Northern District of California 11 12 HOWARD R. LLOYD United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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