Almodova et al v. City and County of Honolulu
Filing
200
ORDER GRANTING JOINT MOTION FOR APPROVAL OF OFFERS OF JUDGMENT: "On the basis of the foregoing, the Court HEREBY GRANTS the parties' Joint Motion for Approval of Offers of Judgment, filed August 4, 2011. IT IS SO ORDERED." Signe d by District JUDGE DAVID ALAN EZRA on September 30, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JONATHAN S. ALMODOVA, ET AL., )
)
Plaintiffs,
)
)
vs.
)
)
CITY AND COUNTY OF HONOLULU, )
)
)
Defendant.
_____________________________ )
CIVIL NO 07-00378 LEK-RLP
ORDER GRANTING JOINT MOTION FOR APPROVAL OF OFFERS OF JUDGMENT
Plaintiffs Noel Araki, Byron Beatty, Harold Chi,
George Dalton, Thomas Dumaoal, Stephen Foster, Michael Fujioka,
Ross Furuhashi, Chad Gushikuma, Paula Harris, Creighton Hatico,
David Hernandez, Wendell Higa, Kaleookalani Hosaka, Ian Ibrao,
Sean Iida, Jonathan Kam, Bruce Kauer, James Kaulia, Jason Kenjo,
Josette Lai, Dong Lee, Alfred Macaibay, Dennis Matsumura,
Jasmine McGuire, Ryan Miyataki, Fumikazu Muraoka,
Aleksander Naluai, Darren Nihipali, Kawika Nishimoto,
Nathan Oshima, Michael Pangilinan, Jeffrey Park, Miller Picardal,
Jeffery Pohaku, Timothy Rapoza, Bruce Sanehira, Chad Sano,
Don Santiago, Russel Won, and Sang Yoon (collectively,
“Plaintiffs”) and Defendant City & County of Honolulu
(“Defendant”) filed the instant Joint Motion for Approval of
Offers of Judgment (“Motion”) on August 4, 2011.
The Court finds
this matter suitable for disposition without a hearing pursuant
to Rule LR7.2(d) of the Local Rules of Practice of the United
States District Court for the District of Hawai`i (“Local
Rules”).
After careful consideration of the Motion and the
relevant legal authority, the Joint Motion is HEREBY GRANTED for
the reasons set forth below.
BACKGROUND
Plaintiffs Jonathan S. Almodova, et al., who are
employees of Defendant, filed this action under the Fair Labor
Standards Act (“FLSA”) on June 28, 2010.
In the preceding action, Almodova, et al. v. City &
County of Honolulu, CV 07-00378 DAE-LEK (“CV 07-00378”),
Defendant made individual offers of settlement to 422 of the 463
plaintiffs, with different amounts offered to groups of
plaintiffs based upon their department and ranking or status.
2010 WL 1372298, at *1 & n.2 (D. Hawai`i Mar. 31, 2010)
(“Almodova I”).
Each individual plaintiff independently chose
whether or not to accept his or her offer, with 280 plaintiffs
accepting.
Certain groups did not receive settlement offers,
specifically battalion chiefs in the fire department and
employees of other departments.
Id. at *1.
The magistrate judge
found the settlements to be fair and reasonable and recommended
approval of the settlements.
Id. at *6.
In addition, using the
lodestar analysis as a guide, the magistrate judge found that the
attorneys’ fees that Defendant agreed to pay in addition to the
settlement amounts were reasonable, and the magistrate judge
2
recommended approval of the agreed upon award of attorneys’ fees.
Id. at *12-13.
The district judge issued the Order Adopting
Magistrate’s Findings and Recommendation on April 20, 2010.
07-00378 (dkt. no. 198).]
[CV
After approval of the settlements, the
district judge approved the parties’ stipulation to dismiss the
action without prejudice and to allow the remaining plaintiffs,
who either did not receive settlement offers or rejected the
settlement offers they received, to re-file their FLSA claims in
a new action under the statute of limitations applicable to CV
07-00378.
[Id., Stip. & Order to Dismiss the Action Without
Prejudice & Preserve the Statute of Limitations, filed 6/21/10
(dkt. no. 199).]
The Stipulation and Order also stated:
9.
For the purpose of attorney’s fees and
costs, Almodova I and Almodova II shall be treated
as a continuous action. The fee agreements signed
in Almodova I shall remain in full force and
effect for Almodova II. Attorney’s fees and costs
generated during Almodova I shall be recoverable
in Almodova II to the extent they would have been
recoverable if the action had continued under
Almodova I, whether pursuant to a fee agreement or
a statutory or other legal entitlement[.]
[Id. at 3.]
The remaining 183 plaintiffs filed the instant action
on June 28, 2010.
The Complaint alleges, identically to CV 07-
378, that Defendant violated the FLSA by: improperly calculating
the plaintiffs’ regular rate of pay, which is used to calculate
overtime pay; failing to compensate them for pre-shift and post3
shift periods of work and working through unpaid meal periods;
failing to comply with the FLSA’s compensatory time off
provisions; failing to compensate them in a timely manner for
overtime work; and improperly classifying certain plaintiffs as
exempt from the FLSA.
The Complaint seeks an award of the unpaid
overtime compensation due under the FLSA, liquidated damages, and
reasonable attorney’s fees and costs.
On August 31, 2010, Defendant issued individual Offers
of Judgment to the 183 plaintiffs.
Plaintiffs’ counsel
communicated the offers to each plaintiff individually, and
forty-one accepted.1
[Mem. in Supp. of Motion at 7-8.]
Similarly to CV 07-00378, this action is a collective action, but
the settlement is distinguishable from a class action settlement
in that Defendant made individual offers to each plaintiff, who
then made his or her own decision to accept or reject his or her
offer.
Plaintiffs argue that the Court should approve the
Offers of Judgment and the stipulated attorneys’ fees and
litigation costs for the same reasons the Court approved the
settlements in CV 07-00378, as the instant case reasserts
identical claims.
1
Defendant’s Offer of Judgment to each of the settling
Plaintiffs (collectively “Offers of Judgment”) are attached to
the Motion as Exhibit 1 to the Declaration of William N. Ota
(“Ota Declaration”). Plaintiffs’ Acceptance of Offers of
Judgment is Exhibit 2 to the Ota Declaration.
4
PROPOSED SETTLEMENT
Plaintiffs and Defendant agreed to individual
settlements in varying amounts based on the department where each
plaintiff worked and the type of position each plaintiff held.
Defendant offered the following amounts:
•
•
•
•
$800 for Captains in the Fire Department;
$1,000 for Sergeants, Lieutenants, and
Dispatch Supervisors in the Fire Department;
$1,500 for non-supervisory employees in the
Fire Department; and
$2,000 for non-supervisory employees in the
Police Department.
[Mem. in Supp. of Motion at 7 (citations omitted).]
Based upon
the forty-one Plaintiffs who accepted, the parties stipulated
that Defendant would pay “attorneys’ fees and costs in an amount
equal to 33-1/3% of the gross payments to Plaintiffs ($24,830.85)
plus costs incurred ($2,352.19).”
[Id. at 8 (citations
omitted).]
DISCUSSION
The FLSA provides:
Any employer who violates the provisions of
section 206 or section 207 of this title shall be
liable to the employee or employees affected in
the amount of their unpaid minimum wages, or their
unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated
damages. . . . The court in [in an FLSA] action
shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable
attorney’s fee to be paid by the defendant, and
costs of the action.
29 U.S.C. § 216(b).
5
As in Almodova I, the Court will review the proposed
settlement and the stipulated attorneys’ fees and costs,
according to the fairness standard set forth in the seminal case,
Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th
Cir. 1982).
See 2010 WL 1372298, at *3.
Lynn’s Food requires
the district court to “scrutiniz[e] the settlement for
fairness[,]” and determine that the proposed settlement “is a
fair and reasonable resulution [sic] of a bona fide dispute over
FLSA provisions.”
I.
679 F.2d at 1353, 1355.
Approval of Settlement
As the magistrate judge noted in Almodova I:
In evaluating a proposed class action settlement
for overall fairness, courts balance the following
factors:
the strength of the plaintiffs’ case; the
risk, expense, complexity, and likely
duration of further litigation; the risk of
maintaining class action status throughout
the trial; the amount offered in settlement;
the extent of discovery completed and the
stage of the proceedings; the experience and
views of counsel; the presence of a
governmental participant; and the reaction of
the class members to the proposed settlement.
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th
Cir. 1998) (citations omitted). While some of
these factors do not apply because of the inherent
differences between class actions and FLSA
actions, the majority of the factors are relevant
and will be useful in evaluating the fairness of
the settlement in this case.
2010 WL 1372298, at *4.
This Court will apply the same analysis
in the instant case.
6
A.
Strength of Plaintiffs’ Case
Plaintiffs assert that some of their claims, such as
the regular rate and uncompensated work claims, are well grounded
in the law, but they acknowledge that the factual elements of the
uncompensated work claims may be difficult to prove.
Further, a
recent Ninth Circuit case found the donning and doffing of
uniforms and equipment, one of the larger uncompensated work
claims in CV 07-00378 and in the instant case, to be a
non-compensable activity under the FLSA when police officers have
the option of donning and doffing at home.
[Mem. in Supp. of
Motion at 10 (citing Bamonte v. City of Mesa, 598 F.3d 1217, 1231
(9th Cir. 2010)).]
The Ninth Circuit has also held that an
employer is not required to provide compensatory time off on the
specific days that the employee requests if the employer allows
the time off within a reasonable period thereafter.
[Id. at
10-11 (citing Mortensen v. County of Sacremento, 368 F.3d 1082
(9th Cir. 2004)).]
Defendant has raised various defenses, including the
higher overtime threshold for police officers and fire fighters,
credits for overtime payments that Defendant made, and the
alleged exemption from the FLSA for police sergeants, police
lieutenants, fire captains, fire battalion chiefs, and police
dispatch supervisors.
Plaintiffs also note that, even prior to
CV 07-00378, there was a similar lawsuit against Defendant in
7
2006.
It prompted Defendant to institute certain policies to
control overtime work, and these policies could make it more
difficult for Plaintiffs to prove their case.
In light of the strengths and potential weaknesses in
Plaintiffs’ case, the Court finds that the first factor weighs in
favor of approving the settlement.
B.
Risks of Further Litigation
Plaintiffs acknowledge that there is risk inherent in
all litigation, and the risk for each of Plaintiffs’ claims
varies for the reasons discussed above.
Plaintiffs also note
that the FLSA has only been applied to local and municipal
governments since 1985, and there is little case law regarding
FLSA claims by police officers and firefighters, who work under
unique circumstances.
This Court finds that these risks support
settlement approval.
C.
Stage of the Proceedings
The instant case remains in the early discovery stage.
[Ota Decl. at ¶ 7.]
In CV 07-00378, the parties exchanged some
records, and the plaintiffs provided Defendant with their
database of information that counsel gathered during the
plaintiffs’ interviews.
Almodova I, 2010 WL 1372298, at *5.
The
parties took several Rule 30(b)(6) depositions in preparation for
the anticipated dispositive motions on the issue of whether
sergeants, lieutenants, captains, battalion chiefs, and dispatch
8
supervisors are exempt from the FLSA.
Id.
The parties have not conducted any further discovery
since the filing of the Complaint in the instant case on June 28,
2010.
The Court has held numerous conferences with the parties
to discuss the settlement.
The parties’ discovery in CV 07-00378
is sufficient to allow a realistic evaluation of the instant
case, even though there is significant discovery remaining, as
well as motions practice and trial preparation.
The Court
therefore finds that the stage of the proceedings and the extent
of discovery completed favor approval of the settlement.
D.
Expense, Complexity, and Duration of Further Litigation
As previously noted above and in Almodova I, there is
significant discovery remaining in this case, particularly
because representative plaintiffs have not been selected yet.
Plaintiffs’ counsel also anticipate extensive dispositive motions
in this case.
If the case proceeds to trial, the plaintiffs will
likely retain an expert witness to calculate damages.
Plaintiffs
also believe that a trial in this case would be lengthy and
costly because it will involve many witnesses.
This Court
therefore finds that the expense, complexity, and likely duration
of further litigation favors settlement approval.
E.
Amount Offered in Settlement
Plaintiffs contend that the settlement amounts are
reasonable because they mirror the range offered in CV 07-00378,
9
which were found to be fair in Almodova I.
*5.
2010 WL 1372298, at
This Court agrees that, because the plaintiffs received a
similar range of offers in the prior action, Defendant has
offered reasonable and fair settlement amounts in the instant
case.
The Court therefore finds that this factor favors approval
of the settlement.
F.
Experience and Views of Counsel
Plaintiffs’ counsel have extensive experience in FLSA
litigation, and they believe that the settlement is fair and
reasonable and should be approved.
In Almodova I, the magistrate
judge found that both local counsel, Meheula & Devens, LLP, and
an Oregon law firm, Aitchison & Vick, have extensive experience
in complex litigation and that their views weighed in favor of
settlement.
Id.
This Court therefore finds that the experience
and views of Plaintiffs’ counsel weigh in favor of settlement
approval.
G.
Plaintiffs’ Reaction to the Settlement
Each of the settling Plaintiffs made an individual
decision to accept his or her respective Offer of Judgment.
Plaintiffs’ counsel requested several time extensions to allow
Plaintiffs to carefully consider his or her offer and to seek the
advice of counsel.
A total of forty-one Plaintiffs accepted
offers by September 27, 2010.
15-16.]
[Mem. in Supp. of Motion at
This Court agrees with Plaintiffs that their individual
10
decisions weigh strongly in favor of settlement approval.
This Court finds that all of the relevant factors weigh
in favor of approving the settlements in this case.
This Court
therefore FINDS that the settlements are reasonable and GRANTS
approval of the settlements reached through Plaintiffs’
acceptance of the Offers of Judgment.
II.
Attorneys’ Fees and Costs
This Court must review the parties’ stipulated
attorneys’ fees and costs in this case for reasonableness.
In
reviewing the proposed attorneys’ fees for reasonableness, this
Court will use the principles of the traditional lodestar method
as a guide, and apply the same analysis used in Almodova I.
2010
WL 1372298, at *6-12.
Under the lodestar method, the court must determine a
reasonable fee by multiplying “the number of hours reasonably
expended on the litigation” by “a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Second, the
court must decide whether to adjust the lodestar amount based on
an evaluation of the factors articulated in Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), which have not been
subsumed in the lodestar calculation.
See Fischer v. SJB-P.D.,
Inc., 214 F.3d 1115, 1119 (9th Cir. 2000).
The factors the Ninth Circuit articulated in Kerr are:
(1) the time and labor required, (2) the novelty
and difficulty of the questions involved, (3) the
11
skill requisite to perform the legal service
properly, (4) the preclusion of other employment
by the attorney due to acceptance of the case, (5)
the customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the
client or the circumstances, (8) the amount
involved and the results obtained, (9) the
experience, reputation, and ability of the
attorneys, (10) the “undesirability” of the case,
(11) the nature and length of the professional
relationship with the client, and (12) awards in
similar cases.
Kerr, 526 F.2d at 70.
Factors one through five have been
subsumed in the lodestar calculation.
See Morales v. City of San
Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).
Further, the Ninth
Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567
(1992), held that the sixth factor, whether the fee is fixed or
contingent may not be considered in the lodestar calculation.
See Davis v. City & County of San Francisco, 976 F.2d 1536, 1549
(9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345
(9th Cir. 1993).
If this Court were determining the fee award under the
lodestar analysis, the Court would require counsel to submit
detailed records of all time billed in this case.
Plaintiffs’
counsel assert that the hours they expended are reasonable due to
the complexity and demands of the litigation.
[Motion, Decl. of
Vladimir Devens (“Devens Decl.”) at ¶ 8; Motion, Decl. of Will
Aitchison (“Aitchison Decl.”) at ¶ 16.]
Insofar as this Court is
only using the lodestar analysis as a guide, this Court will
accept Plaintiffs’ representation that all of counsel’s time
12
spent on this case was reasonable and necessary.
Further,
Plaintiffs’ counsel applied the hourly rates found reasonable in
Almodova I.
[Devens Decl. at ¶ 8; Aitchison Decl. at ¶ 16.]
If this Court applied the lodestar analysis in this
case, this Court would find the following fees to be reasonable,
as set forth in the tables below.
Plaintiffs’ counsel divided
their attorneys’ fees in the prior action and in the instant case
into three time periods, based on the group of plaintiffs who
accepted offers of judgment in CV 07-00378, who accepted the
Offers of Judgment in the instant case, and the work performed
after Defendant extended the Offers of Judgment in the instant
case.
[Devens Decl. at ¶ 6; Aitchison Decl. at ¶ 14.]
A.
Group I
Group I consists of the plaintiffs in the prior action
who incurred attorneys’ fees and costs up to June 21, 2010.
Attorney/Staff
Meheula & Devens
Vlad Devens-partner
Denise Asuncion-legal assist.
Andrea Rosehill-legal assist.
Lynn Kochi-legal assist.
Rate
Hours
Subtotal
$280
$ 75
$ 75
$ 50
331.25
125.00
20.25
106.00
Subtotal
$ 92,750.00
$ 9,375.00
$ 1,518.75
$ 5,300.00
$108,943.75
Aitchison & Vick
Will Aitchison-partner
Jeffrey Julius-partner
Breanne Sheetz-associate
Anya King-data analyst
Marc Fuller-data analyst
Carol Green-legal assist.
Erin Hislope-legal assist.
Survey Staff
$350
$285
$150
$125
$125
$ 85
$ 50
$105
241.30
89.85
459.58
143.20
175.50
152.85
162.30
1126.15
Subtotal
$ 84,455.00
$ 25,607.25
$ 68,937.00
$ 17,900.00
$ 21,937.50
$ 12,992.25
$ 8,115.00
$118,245.75
$358,189.75
13
Grand Total
[Devens Decl. at ¶ 8; Aitchison Decl. at ¶ 16.]
$467,133.50
Plaintiffs, who
accepted the Offers of Judgment in the instant case, constitute
8.875% of Group I.
¶ 17.]
[Devens Decl. at ¶ 9; Aitchison Decl. at
Plaintiffs are therefore responsible for 8.875% of the
total attorneys’ fees for Group I, amounting to $41,458.10.
B.
Group II
Group II consists of the plaintiffs who incurred
attorneys’ fees and costs on the matter from June 21, 2010
through August 31, 2010.
Attorney/Staff
Meheula & Devens
Vlad Devens-partner
Rate
Hours
$280
4.00
Aitchison & Vick
Will Aitchison-partner
Breanne Sheetz-associate
Anya King-data analyst
Carol Green-legal assist.
$350
$150
$125
$ 85
2.90
34.592
83.90
4.21
Subtotal
Grand Total
[Devens Decl. at ¶ 10; Aitchison Decl. at ¶ 18.]
constitute 22.528% of Group II.
Decl. at ¶ 19.]
Subtotal
$
1,120.00
$ 1,015.00
$ 5,188.80
$ 10,487.50
$
357.85
$ 17,049.15
$ 18,169.15
Plaintiffs
[Devens Decl. at ¶ 11; Aitchison
Plaintiffs are therefore responsible for 22.528%
of the total attorneys’ fees, amounting to $4,093.15.
C.
Group III
Group III consists of the plaintiffs who incurred
attorneys’ fees and costs in the instant case after August 31,
2010.
Although some work on behalf of Plaintiffs has continued
14
after August 31, 2010, Plaintiffs’ counsel assumes, for purposes
of the instant Motion, that Plaintiffs are responsible for no
time or costs incurred on behalf of Group III.
[Devens Decl. at
¶¶ 6-7; Aitchison Decl. at ¶¶ 14-15.]
D.
Summary of Attorneys’ Fees
If the Court applied the lodestar analysis in this
case, the total lodestar award would be $45,551.25.
The parties,
however, have stipulated to $24,830.85 in attorneys’ fees.
Decl. at ¶ 6.]
[Ota
This amount is in addition to the settlement
amounts that Defendant will pay to Plaintiffs.
[Mem. in Supp. of
Motion at 8; Ota Decl., Exh. 1 (Offers of Judgment).]
Insofar as
the stipulated attorneys’ fees are significantly less than the
amount that Plaintiffs would be entitled to under the lodestar
analysis, the Court FINDS that the stipulated award of attorneys’
fees is manifestly reasonable.
E.
Costs
Meheula & Devens incurred $12,101.68 and Aitchison &
Vick incurred $6,170.97 in litigation costs for Group I.
Decl. at ¶ 12; Aitchison Decl. at ¶ 21.]
[Devens
Plaintiffs are
responsible for 8.875% of these litigation costs, equaling
$1,074.02 and $547.67, respectively, for a total of $1,621.69 in
combined litigation costs for Group I.
Meheula & Devens incurred $624.16 and Aitchison & Vick
incurred $2,618.47 in litigation costs for Group II.
15
[Devens
Decl. at ¶ 13; Aitchison Decl. at ¶ 21.]
Plaintiffs are
responsible for 22.528% of these litigation costs, equaling
$140.61 and $589.89, respectively, for a total of $730.50 in
combined litigation costs for Group II.
The parties therefore stipulated that Defendant would
pay $2,352.19 in costs attributable to Plaintiffs.
[Ota Decl. at
¶ 6.]
In a contested motion for attorneys’ fees and costs,
this Court would require a detailed itemization of the costs
incurred, with supporting documentation, as well as citation to
the legal authority for an award of each category of costs
incurred.
For purposes of the instant Motion, however, this
Court will accept Plaintiffs’ representation that the stipulated
costs were necessarily and actually incurred on Plaintiffs’
behalf and are compensable under the applicable law.
The Court
therefore FINDS that the stipulated award of costs is manifestly
reasonable.
The Court GRANTS approval of the stipulated
attorneys’ fees and costs attributable to the settling Plaintiffs
in this case.
CONCLUSION
On the basis of the foregoing, the Court HEREBY GRANTS
the parties’ Joint Motion for Approval of Offers of Judgment,
filed August 4, 2011.
IT IS SO ORDERED.
16
DATED AT HONOLULU, HAWAII, September 30, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JONATHAN S. ALMODOVA, ET AL. V. CITY AND COUNTY OF HONOLULU;
CIVIL NO. 07-00378 LEK-RLP; ORDER GRANTING JOINT MOTION FOR
APPROVAL OF OFFERS OF JUDGMENT
17
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