Estate of Agnes P. Tahilan v. Friendly Care Home Health Services, Inc. et al

Filing 51

ORDER AWARDING ATTORNEYS' FEES AND COSTS: "On the basis of the foregoing, this Court AWARDS Plaintiff $937.49 in attorneys' fees and $196.45 in costs, for a total award of $1,133.94. The Court ORDERS Defendant to pay this amount to Plaintiff's counsel by no later than November 17, 2010. IT IS SO ORDERED." re 45 Declaration. Signed by Magistrate JUDGE LESLIE E KOBAYASHI on September 17, 2010. (bbb, )CERTIFICATE OF SERVICE< /center>Participants 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

Estate of Agnes P. Tahilan v. Friendly Care Home Health Services, Inc. et al

Doc. 51

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII THE ESTATE OF AGNES P. TAHILAN, ) ) ) Plaintiff, ) ) vs. ) ) FRIENDLY CARE HOME HEALTH ) ) SERVICES, INC., a foreign ) corporation, ET AL., ) Defendants. ) _____________________________ ) CIVIL NO. 09-00430 DAE-LEK

ORDER AWARDING ATTORNEYS' FEES AND COSTS This Court's December 9, 2009 Rule 16 Scheduling Order set a settlement conference in this matter for May 18, 2010. Pro

se Defendant Michael Lee Folkes ("Defendant") neither appeared at this conference nor submitted the required settlement conference statement. On May 20, 2010, this Court issued an Order to Show

Cause ("OSC"), ordering Defendant to appear at a hearing on June 23, 2010 to show cause, if any, why he should not be sanctioned for his failure to appear at the settlement conference. Defendant appeared at the June 23, 2010 hearing, [dkt. no. 38 (minutes),] and filed a response to the OSC on the same date. [Dkt. no. 41.] Defendant explained that he failed to

appear by telephone at the settlement conference because of cellular phone reception issues that were beyond his control. He

Dockets.Justia.com

stated that he would take the necessary steps to ensure that this did not happen again. Defendant argued that sanctions were not

necessary for deterrence and would be an undue financial burden. At the hearing, this Court ruled that Defendant's failure to appear was a sanctionable matter and directed counsel for Plaintiff the Estate of Agnes P. Tahilan ("Plaintiff") to submit a declaration regarding the attorneys' fees and costs incurred for the settlement conference. Plaintiff filed its

Declaration Re: OSC Sanctions; Plaintiff's Attorney's Fees and Costs ("Declaration") on June 28, 2010. a response. Defendant did not submit

After reviewing the Declaration, and based on this

Court's familiarity with the case, the Court AWARDS Plaintiff $937.49 in attorneys' fees and $196.45 in costs, for a total award of $1,133.94. DISCUSSION This Court FINDS that Plaintiff is entitled an award of its attorneys' fees and costs incurred as a result of Defendant's failure to appear at the settlement conference. P. 16(f).1
1

See Fed. R. Civ.

The Court now turns to the amount of the award.

Rule 16(f) states, in pertinent part: (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; .... (continued...) 2

I.

Calculation of Attorneys' Fee Award Under federal law, reasonable attorneys' fees are

generally based on the traditional "lodestar" calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See

Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). The court must determine a reasonable fee by multiplying "the number of hours reasonably expended on the litigation" by "a reasonable hourly rate." Hensley, 461 U.S. at 433. 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. 1119 (citation omitted). 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 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 (...continued) (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. 3
1

See Fischer, 214 F.3d at

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 See Morales v. City of San Further, the Ninth

subsumed in the lodestar calculation.

Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996).

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). Once calculated, the "lodestar" is See Pennsylvania v. Delaware Valley

presumptively reasonable.

Citizens' Council for Clean Air, 483 U.S. 711, 728 (1987); see also Fischer, 214 F.3d at 1119 n.4 (stating that the lodestar figure should only be adjusted in rare and exceptional cases). Plaintiff requests the following lodestar amount for counsel's appearance at the settlement conference: ATTORNEY Douglas Sameshima HOURS 4.0 RATE $225 LODESTAR $900.00 $ 37.49 $937.49

State Excise Tax of 4.165% TOTAL REQUESTED LODESTAR [Declaration at ¶ 4, Exh. A at 1.] 4

Mr. Sameshima was admitted to

the Hawai`i bar in 1983. A. Reasonable Hourly Rate In determining whether an hourly rate is reasonable, the Court considers the experience, skill, and reputation of the attorney requesting fees. 840 & n.6 (9th Cir. 2002). See Webb v. Ada County, 285 F.3d 829, The reasonable hourly rate should See id.;

reflect the prevailing market rates in the community.

see also Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as amended on denial of reh'g, (1993) (noting that the rate awarded should reflect "the rates of attorneys practicing in the forum district"). In addition to their own statements, attorneys are required to submit additional evidence that the rates charged are reasonable. See Jordan v. Multnomah County, 815 F.2d 1258, 1263 Although Plaintiff did not provide such

(9th Cir. 1987).

additional evidence, based on this Court's familiarity with the standard hourly rates for attorneys with comparable experience, skill, and reputation, this Court finds that Mr. Sameshima's requested hourly rate of $225 is manifestly reasonable. B. Hours Reasonably Expended Beyond establishing a reasonable hourly rate, a party seeking attorney's fees bears the burden of proving that the fees and costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained. 5 See Tirona

v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted). A court must guard against awarding

fees and costs which are excessive, and must determine which fees and costs were self-imposed and avoidable. See id. at 637

(citing INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir. 1987)). A court has "discretion to `trim fat' from, or

otherwise reduce, the number of hours claimed to have been spent on the case." Soler v. G & U, Inc., 801 F. Supp. 1056, 1060 Time expended on work deemed

(S.D.N.Y. 1992) (citation omitted).

"excessive, redundant, or otherwise unnecessary" shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, 461 The Court has reviewed counsel's hours and

U.S. at 433-34).

finds them to be manifestly reasonable. C. Total Lodestar Award Based on the foregoing, this Court FINDS that Plaintiff has established the appropriateness of an award of attorneys' fees as follows: ATTORNEY Douglas Sameshima HOURS 4.0 RATE $225 LODESTAR $900.00 $ 37.49 $937.49

State Excise Tax of 4.165% TOTAL

The Court declines to adjust the award based on the remaining Kerr factors.

6

II.

Costs Plaintiff also seeks $196.45 in costs associated with

counsel's appearance at the settlement conference. at ¶ 5.]

[Declaration

Plaintiff's costs consist of the following: airfare to

Honolulu from Kahului and back - $142.40; car rental in Honolulu - $45.05; and parking in Kahului - $9.00. at 1.] 2-4.] [Declaration, Exh. B [Id. at

Plaintiff submitted a receipt for each expense.

The Court finds that these costs were reasonably and

necessarily incurred for counsel's appearance at the settlement conference. The Court therefore FINDS that Plaintiff is entitled

an award of $196.45 in costs. CONCLUSION On the basis of the foregoing, this Court AWARDS Plaintiff $937.49 in attorneys' fees and $196.45 in costs, for a total award of $1,133.94. The Court ORDERS Defendant to pay this

amount to Plaintiff's counsel by no later than November 17, 2010. IT IS SO ORDERED. DATED AT HONOLULU, HAWAII, September 17, 2010.

/S/ Leslie E. Kobayashi Leslie E. Kobayashi United States Magistrate Judge THE ESTATE OF AGNES P. TAHILAN V. FRIENDLY CARE HOME HEALTH SERVICES, INC., ET AL; CIVIL NO. 09-00430 DAE-LEK; ORDER AWARDING ATTORNEYS' FEES AND COSTS 7