Masuda-Cleveland v Life Insurance Company of America

Filing 160

ORDER : DENYING DEFENDANT'S OBJECTIONS; AND ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS re 154 - Sig ned by JUDGE LESLIE E. KOBAYASHI on 8/19/2021. For the foregoing reasons, Defendant's Objections to the Magistrate Judge's Findings and Recommendation to Grant in Part and Deny in Part Plaintiff's Motion for A ward of Attorneys' Fees and Costs Filed on March 19, 2021 (ECF No. 154), which Defendant filed on April 2, 2021, is HEREBY DENIED. The magistrate judge's F&R is ADOPTED AS MODIFIED by the instant Order. This Court therefore AWARDS Plaint iff $364,946.80 in attorneys' fees and $3,472.76 in nontaxable costs, for a total award of $368,419.56. Defendant is ordered to pay the award by remitting payment to Plaintiff's counsel by no later than September 20, 2021. (emt, )

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UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
MARNIE MASUDA-CLEVELAND,

CIV. NO. 16-00057 LEK-WRP

Plaintiff,
vs.
LIFE INSURANCE COMPANY OF NORTH
AMERICA,
Defendant.
ORDER: DENYING DEFENDANT’S OBJECTIONS; AND ADOPTING,
AS MODIFIED, THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS
On March 19, 2021, the magistrate judge issued his
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff’s Motion for Award of Attorney’s Fees and Costs
(“F&R”).

[Dkt. no. 154.]

On April 2, 2021, Defendant Life

Insurance Company of North America (“Defendant”) filed its
objections to the F&R (“Objections”).

[Dkt. no. 155.]

On

April 19, 2021, Plaintiff Marnie Masuda-Cleveland (“Plaintiff”)
filed her memorandum in opposition to the Objections
(“Memorandum in Opposition”).

[Dkt. no. 157.]

2021, Defendant filed its reply.

On April 23,

[Dkt. no. 158.]

On May 25,

2021, Plaintiff filed her Notice of Supplemental Authority.
[Dkt. no. 159.]

The Court has considered the Motion as a non-

hearing matter pursuant to Rule LR7.1(d) of the Local Rules of

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Practice for the United States District Court for the District
of Hawaii (“Local Rules”).

For the reasons set forth below,

Defendant’s Objections are hereby denied, the F&R is adopted as
modified, and Plaintiff is awarded a total of $364,946.80 in
attorneys’ fees and $3,472.76 in nontaxable costs, for a total
award of $368,419.56.
BACKGROUND
The magistrate judge found that Plaintiff was entitled
to an award of attorneys’ fees pursuant to 29 U.S.C.
§ 1132(g)(1), which is not disputed by Defendants.
4.]

[F&R at 3-

Given that the instant case was brought under the Employee

Retirement Income Security Act (“ERISA”), the magistrate judge
applied the five factor analysis described in Hummell v. S.E.
Rykoff & Co., 634 F.2d 446 (9th Cir. 1980), to determine it was
reasonable to award reasonable attorneys’ fees and costs.1

1

The factors are:
(1) the degree of the opposing parties’
culpability or bad faith; (2) the ability of the
opposing parties to satisfy an award of fees;
(3) whether an award of fees against the opposing
parties would deter others from acting under
similar circumstances; (4) whether the parties
requesting fees sought to benefit all
participants and beneficiaries of an ERISA plan
or to resolve a significant legal question
regarding ERISA; and (5) the relative merits of
the parties’ positions.

Hummell, 634 F.2d at 453 (citations omitted).
2

[Id.

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at 4-5.]

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Next, the magistrate judge applied the lodestar

method, determining that a reasonable rate for Jeffrey C.
Metzger, Esq. to be $700 per hour, [id. at 8-11,] and a
reasonable rate for Carl M. Varady, Esq. to be $450 per hour,
[id. at 11-12].

Mr. Metzger’s rate was determined with

reference to California attorneys, because Plaintiff
demonstrated that local attorneys did not have the requisite
expertise to represent her.

[Id. at 10-11.]

Mr. Varady’s rate,

as local counsel, was determined based on the information
provided and the magistrate judge’s knowledge of local
prevailing rates.

[id. at 11-12.]

After reducing the requested

hours for clerical tasks, block billing, and excessive or
duplicative time, but finding that Mr. Metzger’s billed time for
travel was reasonable, the magistrate found that the following
final award reflected hours reasonably spent in this case:
ATTORNEY
Jeffrey C. Metzger, Esq.
Carl M. Varady, Esq.
General Excise Tax
(Mr. Varady’s fees only)

HOURS
470.1
43.05

RATE
$700
$450

TOTAL
$329,070.00
$ 19,372.50

4.712%
TOTAL

$
912.83
$349,355.33

[F&R at 19.]
Defendant objects to the F&R on the basis of: 1) the
hourly rates of Mr. Metzger and Mr. Varady; 2) more time was
block billed than found by the magistrate judge;
3) Mr. Metzger’s travel time was unreasonable; and 4) the

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substantial majority of the time Mr. Metzger and Mr. Varady
spent drafting their motion for attorneys’ fees was
unreasonable.
STANDARD
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); 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
judge’s findings or recommendation to which a
party objects. United States v. Remsing, 874
F.2d 614, 618 (9th Cir. 1989).
Haw. Def. Found. v. City & Cnty. of Honolulu, Civil No. 12-00469
JMS-RLP, 2014 WL 2804448, at *2 (D. Hawai`i June 19, 2014)
(alteration and emphasis in Haw. Def. Found.).

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DISCUSSION
I.

Reasonable Hourly Rates
Defendant argues Mr. Metzger’s hourly rate should be

determined in relation to the local rate in Hawai`i, rather than
California, where Mr. Metzger lives and practices.

Usually,

[i]n determining the reasonableness of an hourly
rate, the experience, skill, and reputation of
the attorney requesting fees are taken into
account. See Webb v. Ada County, 285 F.3d 829,
840 & n.6 (9th Cir. 2002). The reasonable hourly
rate should reflect the prevailing market rates
in the community. See id.; 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”); Mendez v.
Cnty. of San Bernardino, 540 F.3d 1109, 1129 (9th
Cir. 2008) (“[T]he court must consider what
constitutes a reasonable hourly rate for work
performed in the relevant community by attorneys
of similar skill, experience and reputation.”).[2]
It is the burden of the fee applicant to produce
satisfactory evidence, in addition to an
affidavit from the fee applicant, demonstrating
that the requested hourly rate reflects
prevailing community rates for similar services.
See Jordan v. Multnomah County, 815 F.2d 1258,
1263 (9th Cir. 1987).
United States v. Staton, CIVIL NO. 12-00319 ACK-KSC, 2018 WL
5091634, at *3 (D. Hawai`i Sept. 27, 2018) (some alterations in
Stanton), findings and recommendation adopted, 2018 WL 5087221
(Oct. 18, 2018).

However, in this case, the magistrate judge

determined that the reasonable rate should be determined with

Mendez was overruled in part on other grounds by Arizona
v. ASARCO LLC, 773 F.3d 1050, 1058 n.1 (9th Cir. 2014).
2

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reference to California rates because Plaintiff successfully
demonstrated a lack of local counsel who had expertise in ERISA
comparable to Mr. Metzger’s, particularly in the type of ERISA
issues presented in this case.

See F&R at 10 (citing ECF

No. 152-3; ECF No. 152-4; ECF No. 153-1).3
Mr. Varady submitted a declaration stating that,
although he has in the past, he no longer takes ERISA cases on
his own due to their complexity and the amount of time it can
take an ERISA case to reach a conclusion.

[Plaintiff’s Motion

for Attorneys’ Fees and Costs, Decl. of Carl M. Varady (“Varady
Decl.”), filed 2/12/21 (dkt. no. 147-2), at ¶¶ 8, 10.]

In

addition to the other evidence, the Court finds Mr. Varady’s
declaration to be particularly persuasive in light of his
reputation in the local legal community and the Court’s own
familiarity with his past performance.

Therefore, upon de novo

review, the Court denies Defendant’s Objections as to
Mr. Metzger’s reasonable hourly rate and adopts the reasoning in
the F&R with respect to that issue.

Similarly, the Court finds

no error in the magistrate judge’s reasoning with respect to

ECF No. 152 is Defendant’s Memorandum in Opposition to
Plaintiff Marnie Masuda-Cleveland’s Motion for Award of
Attorney’s Fees and Costs Filed on February 12, 2021, which
Defendant filed on February 19, 2021. ECF 153 is Plaintiff’s
reply in support of the motion, filed on February 26, 2021.
3

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Mr. Varady’s reasonable hourly rate, and the Objections are
denied and the F&R is adopted with regard to that issue as well.
II.

Block Billing
Defendant next argues the magistrate judge erred by

applying only a twenty percent reduction to Plaintiff’s
requested hours for block billing.

“The term ‘block billing’

refers to the time-keeping method by which each lawyer and legal
assistant enters the total daily time spent working on a case,
rather than itemizing the time expended on specific tasks.”
Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir.
1998) (citation and internal quotation marks omitted).

Block-

billed entries generally fail to specify a breakdown of the time
spent on each task.
District courts have the authority to reduce hours
that are billed in block format because such a billing style
makes it difficult for courts to ascertain how much time counsel
expended on specified tasks.

Welch v. Metro. Life Ins. Co., 480

F.3d 942, 948 (9th Cir. 2007) (some citations omitted) (citing
Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir.
2004) (reducing requested hours because counsel’s practice of
block billing “lump[ed] together multiple tasks, making it
impossible to evaluate their reasonableness”)).

Upon de novo

review, this Court agrees with the F&R’s analysis related to

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block billing.

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Defendant’s Objections on this point are

rejected and this portion of the F&R is adopted in full.
III. Travel Billing and Excessive Time Billing
After de novo review, this Court also agrees with the
F&R’s analysis related to travel billing and the deduction for
excessive time.

See F&R at 14, 17-19.

Defendant’s Objections

are therefore denied as to these issues, and those portions of
the F&R are adopted.
IV.

Summary and Litigation of the Objections
In light of the above, the magistrate judge’s award of

attorneys’ fees incurred through March 18, 2021 is adopted.

In

addition, the magistrate judge’s recommendation to award
Plaintiff $3,472.76 in nontaxable costs, which Defendant did not
object to, is adopted.
Plaintiff also seeks an award of the attorneys’ fees
reasonably incurred responding to the Objections.

Mr. Varady

spent 6.2 hours responding to the Objections; [Mem. in Opp.,
Decl. of Carl M. Varady at ¶ 5 & Exh. 1 (invoice dated April 19,
2021);] and Mr. Metzger spent 18.2 hours, [Mem. in Opp., Decl.
of Jeffrey C. Metzger in Supp. of Plaintiff’s Opp. to Objections
to Findings and Recommendations Re Attorneys Fees and Costs at
¶ 3].

The Court finds that these hours are manifestly

reasonable and modifies the recommended attorneys’ fee award in
the F&R to include the hours spent responding to the Objections.
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Plaintiff is therefore entitled to the following award of
attorneys’ fees:
ATTORNEY
Jeffrey C. Metzger, Esq.
Carl M. Varady, Esq.
General Excise Tax
(Mr. Varady’s fees only)

HOURS
488.2
49.25

RATE
$700
$450

TOTAL
$341,740.00
$ 22,162.50

4.712%
TOTAL

$ 1,044.30
$364,946.80

CONCLUSION
For the foregoing reasons, Defendant’s Objections to
the Magistrate Judge’s Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff’s Motion for Award of Attorneys’
Fees and Costs Filed on March 19, 2021 (ECF No. 154), which
Defendant filed on April 2, 2021, is HEREBY DENIED.

The

magistrate judge’s F&R is ADOPTED AS MODIFIED by the instant
Order.

This Court therefore AWARDS Plaintiff $364,946.80 in

attorneys’ fees and $3,472.76 in nontaxable costs, for a total
award of $368,419.56.

Defendant is ordered to pay the award by

remitting payment to Plaintiff’s counsel by no later than
September 20, 2021.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, August 19, 2021.

MARNIE MASUDA-CLEVELAND VS. LIFE INSURANCE COMPANY OF NORTH
AMERICA; CV 16-00057 LEK-WRP; ORDER: DENYING DEFENDANT’S
OBJECTIONS; AND ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS

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