Sunday's Child, LLC et al v. Irongate Azrep BW LLC et al
Filing
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ORDER ADOPTING ADOPTING IN PART AND MODIFYING IN PART THE 38 FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART DEFENDANT IRONGATE AZREP BW LLC'S MOTION FOR AN AWARD OF ATTORNEYS' FEES AND NON-TAXABLE COSTS. S igned by JUDGE DERRICK K. WATSON on 5/30/2014. ~ After a de novo review of Irongate's objections to the Magistrate Judge's findings and recommendations, the Court hereby adopts the findings and recommendations as to non-taxa ble costs, hours reasonably expended, and hourly rates of timekeepers Jenkins, Wilber and Stone. The Court modifies the award of attorneys' fees only as to the hourly rates of timekeepers O'Toole, Lautenbach, and Schmitz. Irongate is award ed $31,708.36 in attorneys' fees and $443.73 in nontaxable costs, for a total award of $32,152.09. (ecs, )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 HAWAI`I
SUNDAY’S CHILD, LLC,
SUNDAY’S THIRD CHILD, LLC,
SUNDAY’S FOURTH CHILD, LLC,
AND SUNDAY’S FIFTH CHILD,
LLC,
Plaintiffs,
vs.
IRONGATE AZREP BW LLC, JOHN
DOES 1-10; JANE DOES 1-10; DOE
PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; AND DOE
ENTITIES 1-10,
CIVIL NO. 13-00502 DKW-RLP
ORDER ADOPTING IN PART AND
MODIFYING IN PART THE
FINDINGS AND
RECOMMENDATIONS TO
GRANT IN PART AND DENY IN
PART DEFENDANT IRONGATE
AZREP BW LLC’S MOTION FOR
AN AWARD OF ATTORNEYS’
FEES AND NON-TAXABLE COSTS
Defendants.
ORDER ADOPTING IN PART AND MODIFYING IN PART THE
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND
DENY IN PART DEFENDANT IRONGATE AZREP BW LLC’S MOTION
FOR AN AWARD OF ATTORNEYS’ FEES AND NON-TAXABLE COSTS
Defendant Irongate AZREP BW LLC (“Irongate”) objects to a portion
of the Magistrate Judge’s April 10, 2014 Findings and Recommendation, granting
in part and denying in part Irongate’s motion for an award of attorneys’ fees and
non-taxable costs (“F&R”). The Court adopts the conclusions of the F&R as to
non-taxable costs. The Court also adopts the conclusion of the F&R as to the
hours reasonably expended by all timekeepers and the hourly rates of attorney
Jenkins and law clerks Wilber and Stone. The Court modifies the F&R as to the
reasonable hourly rate for attorneys O’Toole, Lautenbach, and Schmitz, and
awards them the hourly rates they requested.
BACKGROUND
On February 4, 2014, this Court granted Irongate’s motion to dismiss,
and judgment was entered the same day. Thereafter, Irongate filed a motion for
attorneys’ fees and a bill of costs. Plaintiffs Sunday’s Child, LLC, Sunday’s Third
Child, LLC, Sunday’s Fourth Child, LLC, and Sunday’s Fifth Child, LLC
(“Sunday’s Entities”) did not oppose Irongate’s motion for fees and costs.
The Magistrate Judge concluded in the F&R that Irongate was the
prevailing party. The F&R awarded Irongate $443.73 in non-taxable costs for
copying and deliveries, but did not award $966.00 in costs for staff support or
$1,474.09 for computerized legal research.
As to attorneys’ fees, the Magistrate Judge concluded that the number
of hours expended by the six timekeepers for Irongate (4 attorneys and 2 law
clerks) was reasonable, but reduced the hourly rate for five of the six timekeepers
as follows: for Mr. O’Toole, from $500.00 to $390.00; for Mr. Lautenbach, from
$275.00 to $190.00; for Ms. Schmitz from $230.00 to $180.00; for Ms. Wilbur,
from $175.00 to $100.00; and for Ms. Stone, from $175.00 to $100.00.
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Irongate objects to the F&R only to the extent that it recommends a
reduction in the reasonable hourly rate of counsel (O’Toole, Lautenbach and
Schmitz). Irongate asserts that the hourly rates charged are within the range of
prevailing rates of comparable attorneys in the community. The Sunday’s Entities
did not respond to Irongate’s objections.
STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Under a de novo standard, this Court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); see
also United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district
court need not hold a de novo hearing. However, it is the Court’s obligation to
arrive at its own independent conclusion about those portions of the magistrate
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judge’s findings or recommendation to which a party objects. United States v.
Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
DISCUSSION
Irongate does not object to the Magistrate Judge’s recommendation as
to non-taxable costs or the recommendation that the hours expended by Irongate’s
timekeepers were reasonable. Accordingly, no objections having been filed by any
party as to either of those determinations (and the Sunday’s Entities having also
filed no opposition to Irongate’s underlying motion), the F&R’s recommendation
that the hours expended were reasonable and to award $443.73 in non-taxable costs
are both adopted as the opinion and order of this Court.
Irongate only objects to the Magistrate Judge’s reduction of the
reasonable hourly rate for five of its six timekeepers.1 Hawaii courts “employ[] the
‘lodestar’ method in determining a reasonable attorney’s fee. Under the lodestar
method, the court multiplies the number of hours reasonably expended by a
reasonable hourly rate.” Kaleikini v. Yoshioka, 129 Hawai’i 454, 469 (2013)
(internal citation omitted). In determining the reasonable hourly rate, some of the
relevant factors to consider include “the level of skill required, time limitations, the
amount involved in the litigation, the attorney’s reputation and experience, the
1
The Magistrate Judge recommended that the charged hourly rate of $300.00 for Ms. Jenkins,
Irongate’s contract attorney, was reasonable and did not recommend a reduction in her rate.
There being no objection to this recommendation, the Court adopts it as the opinion and order
the Court.
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quality of the representation, the attorney’s success or failure in the outcome, and
the ‘undesirability’ of the case.” In re Thomas H. Gentry Revocable Trust, 2013
WL 37608, at *19 (Haw. App. Jan. 31, 2013); see Chalmers v. City of Los Angeles,
796 F.2d 1205, 1213 (9th Cir. 1986) (listing similar factors that should be
considered in reaching a reasonable fee award).
As a threshold matter, Irongate’s objection offers no reason why the
rates of law clerks Wilber and Stone should remain at Irongate’s requested rate.
The Court concludes that the $175 hourly rate is excessive and that $100.00 is a
reasonable hourly rate for law clerks Wilber and Stone. See Donkerbrook v. Title
Guaranty Escrow Servs., Inc., 2011 WL 3649539, at *8 (D. Haw. Aug. 18, 2011)
(reducing a law clerk’s hourly rate as excessive from $120.00 to $100.00). The
F&R is therefore adopted as to the recommended hourly rates of Wilber and Stone.
However, as to attorneys O’Toole, Lautenbach, and Schmitz, the
Court modifies the F&R and concludes that the hourly rate requested by Irongate
for each of these timekeepers was reasonable in this case. The Court agrees with
Irongate that the experience, reputation, and ability of these three attorneys, the
result obtained, and the efficiency they employed in resolving the matter for their
client (less than 100 hours expended total among all timekeepers) are all relevant
to the Court’s determination of a reasonable hourly rate here.
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Further, as noted by Irongate, the Courts finds it instructive that
counsel for the Sunday’s Entities bill at hourly rates similar to the rates of
attorneys O’Toole, Lautenbach, and Schmitz. Perhaps for this reason, the
Sunday’s Entities did not oppose Irongate’s motion for fees and costs, and also did
not respond to Irongate’s objections to the F&R. Regardless, the similarity of
hourly rates between counsel on both sides in this matter supports the Court’s
conclusion that the rates of Irongate’s counsel are within the prevailing rate in the
community. See also Ex. 7 to Irongate’s motion.
The Court concludes that the hourly rates of $500.00 for Mr. O’Toole,
$275.00 for Mr. Lautenbach, and $230.00 for Ms. Schmitz were reasonable in this
case and, as sufficiently shown by Irongate, are in line with the prevailing rates for
comparable attorneys in the community. Accordingly, the F&R’s recommended
award of attorneys’ fees is modified as follows:
ATTORNEY
Terence O’Toole, Esq.
Andrew Lautenbach, Esq.
Margaret Jenkins, Esq.
Emily Schmitz, Esq.
Maegan Wilber, law clerk
Chynna Stone, law clerk
SUBTOTAL
General Excise Tax
TOTAL
HOURS
24.8
35.9
12.0
10.3
12.4
8.0
RATE
$500.00
$275.00
$300.00
$230.00
$100.00
$100.00
4.712%
Irongate is thus awarded $31,708.36 in attorneys’ fees.
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TOTAL
$12,400.00
$9,872.50
$3,600.00
$2,369.00
$1,240.00
$800.00
$30,281.50
$1,426.86
$31,708.36
CONCLUSION
After a de novo review of Irongate’s objections to the Magistrate
Judge’s findings and recommendations, the Court hereby adopts the findings and
recommendations as to non-taxable costs, hours reasonably expended, and hourly
rates of timekeepers Jenkins, Wilber and Stone. The Court modifies the award of
attorneys’ fees only as to the hourly rates of timekeepers O’Toole, Lautenbach, and
Schmitz.
Irongate is awarded $31,708.36 in attorneys’ fees and $443.73 in nontaxable costs, for a total award of $32,152.09.
IT IS SO ORDERED.
DATED: May 30, 2014 at Honolulu, Hawai‘i.
Sunday’s Child, LLC v. Irongate AZREP BW LLC, et al.; CV 13-00502
DKW/RLP; ORDER ADOPTING IN PART AND MODIFYING IN PART THE
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY
IN PART DEFENDANT IRONGATE AZREP BW LLC’S MOTION FOR AN
AWARD OF ATTORNEYS’ FEES AND NON-TAXABLE COSTS
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