Moskowitz v. American Savings Bank, F.S.B.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR RULE 41(D) COSTS AND STAY OF PROCEEDINGS re 15 MOTION for Attorney Fees Motion for Rule 41(d) Costs and Stay of Pro ceedings filed by American Savings Bank, F.S.B.. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 10/30/2017. The Court HEREBY FINDS AND RECOMMENDS that Defendant's Motion be GRANTED IN PART AND DENIED IN PAR T. The Court recommends that Defendant be awarded $17,848.20 in fees and $1,196.23 in costs pursuant to FRCP 41(d), and that Plaintiff be directed to remit payment no later than two weeks after the issuance of an order taking action on this Findings and Recommendation. The Court declines to stay the matter at this time and recommends that Defendant's request to dismiss this action be DENIED WITHOUT PREJUDICE, subject to renewal before the district judge if Plaintiff fails to ti mely remit payment. (eps, )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).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CRAIG MOSKOWITZ, on behalf of )
himself and others similarly )
AMERICAN SAVINGS BANK,
CIVIL NO. 17-00299 HG-KSC
FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART
DEFENDANT AMERICAN SAVINGS
BANK, F.S.B.’S MOTION FOR RULE
41(d) COSTS AND STAY OF
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND
DENY IN PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.’S
MOTION FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS
Before the Court is Defendant American Savings Bank,
F.S.B.’s (“Defendant”) Motion for Rule 41(d) Costs and Stay of
Proceedings, filed July 19, 2017.
On September 25, 2017,
Plaintiff Craig Moskowitz (“Plaintiff”) filed an Opposition.1
Defendant filed a Reply on October 2, 2017.
This matter came on for hearing on October 25, 2017.
Justin Brackett, Esq., appeared, and Aytan Bellin, Esq., appeared
The Opposition and other documents filed by Plaintiff
violate Local Rule 10.2(b), which requires that
the name, Hawaii bar identification number,
address, telephone number, facsimile number, and
e-mail address of counsel . . . and the specific
identification of each party represented by name
and interest in the litigation (e.g., plaintiff,
defendant, etc.) shall appear in the upper lefthand corner of the first page of each paper
presented for filing.
Local Rule 10.2(b).
by phone, on behalf of Plaintiff.
Kevin Herring, Esq., and
Michael Vieira, Esq., appeared, and John Doroghazi, Esq.,
appeared by phone, on behalf of Defendant.
consideration of the parties’ submissions, the applicable law,
and the arguments of counsel, the Court HEREBY RECOMMENDS that
the Motion be GRANTED IN PART AND DENIED IN PART for the reasons
The Connecticut Action
On February 21, 2017, Plaintiff filed an action in the
U.S. District Court for the District of Connecticut - Moskowitz
v. American Savings Bank, F.S.B., Civil No. 3:17-00307 AWT
(“Moskowitz I”) - alleging violations of the Telephone Consumer
Protection Act (“TCPA”).
Mot., Ex. B.
Plaintiff filed a Motion
for Class Certification and for a Temporary Stay of Further
Proceedings on That Motion concurrently with the complaint.
On March 10 and April 6, 2017, Defendant filed Motions
for Extension of Time to Plead.
Id., Exs. F & G.
On April 21, 2017, Defendant filed a Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(2).
Id., Ex. E.
On May 15, 2017, Plaintiff filed a Notice of Voluntary
Id., Ex. H.
The Present Action
On June 23, 2017, Plaintiff commenced this action,
asserting the same claims against Defendant as in Moskowitz I.
Indeed, the Complaint is identical save for two changes:
1) paragraph 6 was edited to identify this district as the proper
venue because it is where Defendant resides2 and 2) a date in
paragraph 11 was edited from 2015 to 2016.
Compl. at ¶¶ 6 & 11.
Defendant subsequently filed this Motion and a Motion
to Stay Pending Decision of D.C. Circuit.
Defendant requests its fees and costs incurred in
Moskowitz I pursuant to Rule 41(d) of the Federal Rules of Civil
Plaintiff counters that attorneys’ fees are
never available under FRCP 41(d) and alternatively, that fees are
only recoverable under FRCP 41(d) when the statute underlying the
cause of action provides for them.
FRCP 41(d) provides:
(d) Costs of a Previously Dismissed Action. If a
plaintiff who previously dismissed an action in
any court files an action based on or including
the same claim against the same defendant, the
(1) may order the plaintiff to pay all or part of
the costs of that previous action; and
The paragraph previously alleged that venue was proper in
Connecticut because it is where a substantial part of the events
or omissions giving rise to the claim occurred. Mot., Ex. B at ¶
(2) may stay the proceedings until the plaintiff
Fed. R. Civ. P. 41(d).
For this provision to apply, the parties
must be the same in both actions and the claims in the new action
must be the same or based upon the same claims in the first
FRCP 41(d) confers broad discretion upon courts to
order stays and payment of costs, though neither is mandatory.
Platinum Logistics, Inc. v. Platinum Cargo Logistics, Inc., 3:15CV-617-CAB-KSC, 2015 WL 11921401, at *4 (S.D. Cal. Sept. 15,
2015) (citing Esquivel v. Arau, 913 F. Supp. 1382, 1386 (C.D.
Although FRCP 41(d) is intended “to serve as a
deterrent to forum shopping and vexatious litigation,” id.
(quoting Esquivel, 913 F. Supp. at 1386) (quotations omitted), it
does not require a showing of subjective bad faith.
Esquivel, 913 F. Supp. at 1388).
“Ultimately, ‘[t]he purpose of
Rule 41(d) is to protect defendants from the harassment of
repeated lawsuits by the same plaintiff on the same claims.’”
Id. (quoting Holt v. Kormann, No. SACV 11-01047 DOC, 2012 WL
5829864, at *2 (C.D. Cal. Nov. 15, 2012)) (alteration in
The Court, exercising its discretion, finds that FRCP
41(d) applies here because 1) Plaintiff dismissed his previous
action, Moskowitz I; 2) both Plaintiff and Defendant were parties
in the previous action; and 3) Plaintiff has filed a
substantively identical Complaint in this action.
Attorneys’ Fees and Costs Are Recoverable Pursuant to
Plaintiff argues that fees are not recoverable under
This Court has twice determined that FRCP 41(d)
includes both expenses and attorneys’ fees that were reasonably
incurred in the prior case and will not contribute to the defense
of this case.
Aloha Airlines, Inc. v. Mesa Air Group, Inc., No.
07-00007 DAE-KSC, 2007 WL 2320672, at *4 (D. Haw. Aug. 10, 2007);
Uy v. HSBC Bank USA, Nat. Ass’n, No. CIV. 14-00261 HG, 2014 WL
6471331, at *2 (D. Haw. Nov. 3, 2014), report and recommendation
adopted, 2014 WL 6471747 (D. Haw. Nov. 18, 2014).3
This Court is not alone. See, e.g., Platinum Logistics,
2015 WL 11921401, at *5 (finding persuasive the “reasoning of the
cases finding that fees are recoverable under Rule 41(d)” and
collecting cases); Cadle Co. v. Beury, 242 F.R.D. 695, 699 (S.D.
Ga. 2007) (“To summarize, the word ‘costs’ in Rule 41(d), as
evidenced by the 1993 amendment to Rule 54(d), includes
attorney’s fees. Alternatively, the term ‘costs’ is at least
ambiguous, and thus under Rule 1’s just, speedy, and inexpensive
litigation prism it must be read to include attorney’s fees.
Either way, Rule 41(d) affords the Court discretion to award
attorney’s fees as part of the ‘costs of the action previously
dismissed.’”); Adams v. New York State Educ. Dep’t, 630 F. Supp.
2d 333, 343 (S.D.N.Y. 2009)) (awarding fees under FRCP 41(d) and
collecting cases); Behrle v. Olshansky, 139 F.R.D. 370, 374 (W.D.
Ark. 1991) (“The court believes and finds that Congress must have
intended when Rule 41(d) was adopted to give the court discretion
to include reasonable attorney’s fees in the ‘costs’ that could
be imposed.”); Groom v. Bank of Am., No. 8:08-CV-2567-T-27EAJ,
2010 WL 627564, at *8 (M.D. Fla. Feb. 23, 2010) (awarding fees
under FRCP 41(d)); Holt, 2012 WL 5829864, at *5 & n.2 (finding
that fees are allowable under FRCP 41(d)); Bran v. Sun Pac.
Farming Coop., No. CVF 06-0871 LJO TAG, 2007 WL 781865, at *4
(E.D. Cal. Mar. 13, 2007) (holding that an award of attorneys’
fees and costs pursuant to FRCP 41(d) is not automatic, but
within the discretion of this Court).
not articulated a legitimate basis to revisit these decisions.
As with the plaintiff in Aloha Airlines, Plaintiff relies on
Rogers v. Walmart Stores, Inc., 230 F.3d, 868 (6th Cir. 2000), to
support his contention.
However, this Court already considered
and rejected the reasoning underlying the Rogers decision.
Airlines, 2007 WL 2320672, at *3 (citing Rogers as a court that
disallows attorneys fees under FRCP 41(d), and instead following
the majority of courts that award attorneys’ fees under FRCP
Plaintiff alternatively argues that fees are only
recoverable when the statute underlying the cause of action
provides for them and he relies exclusively on Azizian v.
Federated Dept. Stores, Inc., 499 F.3d 950 (9th Cir. 2007) and
Fourth Circuit and Seventh Circuit cases4 for this proposition.
Azizian is wholly irrelevant.
The Azizian decision pertains to
“costs on appeal” pursuant to Federal Rule of Appellate Procedure
(“FRAP”) 7 and consequently has no applicability here.5
Andrews v. America Living Centers, LLC, 827 F.3d 306 (4th
Cir. 2016); Esposito v. Piatrowski, 223 F.3d 497 (7th Cir. 2000).
Plaintiff additionally cites two district court cases that have
relied on the foregoing.
At the hearing, Mr. Bellin erroneously insisted that
Marek v. Chesny, 473 U.S. 1 (1985), a case relied upon by the
Azizian court, governs the definition of costs as it is used in
the federal rules, both civil and appellate. Marek adjudicated
“whether attorney’s fees incurred by a plaintiff subsequent to an
offer of settlement under Federal Rule of Civil Procedure 68 must
be paid by the defendant under 42 U.S.C. § 1988, when the
plaintiff recovers a judgment less than the offer.” Id. at 3.
Demonstrating a fundamental misunderstanding of the law,
Plaintiff criticizes this Court for failing to “even mention”
Azizian in its Uy decision and proffers that Uy and Aloha
Airlines are no longer good law and may not be followed in light
Opp’n at 8-9.
Applying Plaintiff’s flawed logic,
any case, pertinent or not, could upend valid, existing case law.
The Azizian holding has no bearing on any FRCP 41(d) rulings, and
Plaintiff could not identify a single case that discussed it in
connection with FRCP 41(d), much less extended it to FRCP 41(d).
The Fourth and Seventh Circuit cases cited by Plaintiff
do not compel a different result than Aloha Airline and Uy, as
It does not stand for the proposition that FRCP 41(d) only
includes fees if the substantive statutes governing the claims
authorize fees. Esquivel, 913 F. Supp. at 1390-92 (citing Marek
for its interpretation of “costs” under FRCP 68, and as an
example of fees being recoverable even if a rule does not
expressly mention “attorneys’ fees”, but nevertheless concluding
that FRCP 41(d) authorizes fees and costs irrespective of whether
an underlying statute provides for the same).
Mr. Bellin also referenced Family PAC v. Ferguson, 745 F.3d
1261 (9th Cir. 2014), wherein the Ninth Circuit considered
whether “costs” under FRAP 39 include attorneys’ fees recoverable
as part of costs under 42 U.S.C. § 1988 and similar statutes.
Responding in the negative, the court reasoned that 1) FRAP 39
enumerates the costs on appeal that may be awarded; 2) the
advisory committee’s note “makes plain that the rule is premised
on [28 U.S.C.] § 1920”; 3) FRCP 39 links “the taxation of costs
with the results of the appeal” which can result in each party
bearing its own costs in the case of a mixed judgment, whereas
partially prevailing plaintiffs may be entitled to fees under
§ 1988 “if they succeed on any significant issue in litigation”;
and 4) cost determinations are typically made when the
disposition of the appeal is resolved on the merits, while fee
motions are filed and addressed later. Id. at 1266-69. None of
this reasoning applies here.
this Court is not bound to follow them.
Putting that aside,
however, adopting a rule that fees could only be awarded under
FRCP 41(d) if the statute underlying the cause of action provides
for them, would cause perverse results.
It would allow
plaintiffs whose conduct was intended to be deterred by FRCP
41(d) to escape fee awards simply because fees are unavailable
with respect to the underlying claims.
Given that the purpose of
FRCP 41(d) is to deter vexatiousness and forum shopping and to
protect defendants from the harassment of repeated lawsuits by
the same plaintiff on the same claims, fees should not be
predicated on the availability of fees as to the underlying
They should be predicated on whether or not a “plaintiff
who previously dismissed an action in any court files an action
based on or including the same claim against the same defendant,”
as contemplated by FRCP 41(d).
FRCP 41(d) is collateral to the underlying claims in a
case, unlike other cost provisions such as FRAP 7 and 39, and
It is akin to a sanction, unconnected to the actual
claims presented in the litigation, and concerns a plaintiff’s
conduct related to litigation, versus a party’s liability as to
the claims in a given case.
Appellate costs, like FRCP 54 fees
and costs, are awarded to prevailing parties.
instances, the award of fees and costs is tied to the claims in a
respective action, and it logically follows that the statute
underlying the cause of action must provide for fees and costs.
For the reasons stated above, the Court concludes, as
it has before, that FRCP 41(d) permits the recovery of both fees
The Court does not impose a requirement that fees are
only available when authorized by the statutes/provisions
governing the underlying claims.
Defendant Need Not Establish Bad Faith or Vexatiousness
Plaintiff asserts that Defendant has utterly failed to
demonstrate that he “acted in bad faith, vexatiously, wantonly,
or for oppressive purpose.”
Opp’n at 9.
However, as already
noted, a showing of subjective bad faith is not required.
Neither is vexatiousness the standard applied by the Court with
respect to FRCP 41(d).
Uy, 2014 WL 6471331, at *2.
is meant to serve as a deterrent to forum shopping and vexatious
litigation, but it does not follow that vexatiousness or forum
shopping are preconditions to an FRCP 41(d) award.
The pertinent facts in this case are uncontested:
Plaintiff commenced Moskowitz I against Defendant; Defendant
filed a motion to dismiss for lack of personal jurisdiction;
Plaintiff, without responding to the motion to dismiss,
voluntarily dismissed Moskowitz I; and following the dismissal,
Plaintiff filed an identical lawsuit against Defendant here.
This sequence of events falls squarely within FRCP 41(d) and is
precisely the type of situation covered by FRCP 41(d).
Plaintiff has “commence[d] an action based upon or including the
same claim[s] [as brought in a previously dismissed action]
against the same defendant.”
Esquivel, 913 F. Supp. at 1387
(quotations omitted) (alterations in original).
Plaintiff submits that he reasonably believed (and
still believes) that specific jurisdiction existed with respect
to Defendant in Connecticut.
He nevertheless dismissed Moskowitz
I and elected to refile in this district to avoid questions
concerning the existence of personal jurisdiction.
Plaintiff, his voluntary dismissal saved time and money and
conserved the resources of the Connecticut district court as well
as the Second Circuit.6
These arguments are unavailing.
A plaintiff “bears the responsibility of determining
the appropriate forum in which to prosecute her case . . . and of
establishing that personal jurisdiction exists.”
Decker Coal Co. V. Commonwealth Edison Co., 805 F.2d 834, 839
(9th Cir. 1986); Data Disc, Inc. v. Sys. Tech. Assocs., 557 F.2d
1280, 1285 (9th Cir. 1977)).
Plaintiff’s dismissal of Moskowitz
I (without responding to Defendant’s motion to dismiss) and
subsequent refiling of the identical action here arguably
demonstrates some recognition that Moskowitz I “was vulnerable on
Plaintiff cannot genuinely claim that his actions were
taken for the purpose of conserving court resources. He merely
shifted the burden from the District of Connecticut to this
district. And his actions have caused additional motions
practice, this being a perfect example of such.
the grounds asserted in [Defendant’s] motion.”
simultaneously defends the propriety of jurisdiction in
Connecticut while acknowledging that during his review of
Defendant’s motion to dismiss, he
became aware of two non-binding district court
cases from outside of the Second Circuit that held
that notwithstanding the state in which a
defendant’s call to a cell phone is received,
there is no specific jurisdiction over the
defendant in that state if the number of [sic]
receiving cell phone contains an out-of-state area
Opp’n at 10-11.
Thus, despite Plaintiff’s claim that his
decision to voluntarily dismiss Moskowitz I was primarily
motivated by a desire to conserve resources and minimize costs,
it is equally as plausible that Plaintiff sought to avoid an
adverse ruling and dismissal in Connecticut.
Plaintiff deems preposterous Defendant’s allegation
that he engaged in forum shopping.
Plaintiff believes that he
could not have engaged in forum shopping because Hawaii is the
least convenient forum for him and his attorneys7 and the most
convenient for Defendant.
Defendant’s point is that Plaintiff
forum shopped by improperly filing Moskowitz I in Connecticut,
the forum most convenient to him, notwithstanding questions about
the existence of personal jurisdiction.
Whether or not Plaintiff
engaged in forum shopping, however, does not affect the outcome
One of Plaintiff’s two attorneys practices in Hawaii.
of this Motion.
Defendant is not required to establish that
Plaintiff engaged in forum shopping to prevail.
Court recommends that Defendant be awarded fees and costs under
Defendant requests $22,572.26 in fees.8
excludes work that will still be useful to Defendant in the
Aloha Airlines, 2007 WL 2320672, at *4
(“Under Rule 41(d), a court should not award costs associated
with past work that will still be useful to defendants in the
The Court assesses the reasonableness of
the requested fees.
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
It appears that there are a couple of miscalculations.
Plaintiff requests $22,572.31 in fees, but the correct amount
based on the hours set forth in Exhibit J to John Doroghazi’s
Declaration is $22,572.26. The error originates from paragraph
26.c of Mr. Doroghazi’s Declaration. In it, he states that work
involving motions predicated on jurisdictional issues and
procedural irregularities totaled $19,666.78. However, the
accompanying table itemizing the fees by attorney is inaccurate.
The hours listed for Mr. Doroghazi and Ms. Bildner should be 11.2
and 52.5, respectively, instead of 12 and 59, as listed. The
table reflects a total of $20,806.50 in fees for the time
expended in connection with the jurisdictional issues and
procedural irregularities. Applying the correct hours in the
table results in a total of $19,666.73.
determine a reasonable fee by multiplying “the number of hours
reasonably expended on the litigation” by “a reasonable hourly
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 already been subsumed
in the lodestar calculation.
See Fischer, 214 F.3d at 1119
The factors articulated by the Ninth Circuit in Kerr
are as follows:
(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
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
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).
Once calculated, the “lodestar” is
See Pennsylvania v. Delaware Valley
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).
Defendant requests the following hourly rates: 1) John
Doroghazi - $355.00; 2) Kim Rinehart - $436.50; 3) Elana Bildner
- $261.25; and 4) Nicole Chavez -$215.00.
these rates and argues that this district’s prevailing rates
Applying what he claims are the prevailing rates in
this district, Plaintiff submits that the hourly rates should be
reduced to $220.00, $275.00, $165.00 and $80.00.9
In 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.
Plaintiff clearly has not reviewed any recently issued
decisions establishing reasonable hourly rates in this district.
Plaintiff relies on Aloha Airlines, a 2007 case, for findings
concerning reasonable hourly rates. If Honolulu was the relevant
community against which to measure prevailing market rates, the
hourly rate determinations made 10 years ago would be of limited
value, if at all.
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. Cty. 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
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).
Just as the Court reduces mainland counsel’s hourly
rates in cases litigated within this district so they are
commensurate with prevailing local rates, the Court must ensure
that defense counsel’s hourly rates reflect the prevailing market
rates in Connecticut, which is the relevant community because
Moskowitz I was litigated there.
Defendant relies in part on
state court cases to support its counsel’s requested hourly
The Court is guided by Connecticut federal district court
opinions, not Connecticut state court opinions.
When this Court
evaluates hourly rates within this district, it does not
designate rates based on those awarded by Hawaii state courts.
Mr. Doroghazi is a partner with 11 years of experience,
including significant class action defense and experience with
Mot., Decl. of John M. Doroghazi (“Doroghazi
Decl.”) at ¶ 15.
Based on its review of hourly rates awarded for
attorneys with comparable experience in Connecticut, the Court
finds $310.00 to be a reasonable rate.
Friedman v. SThree PLC.,
No. 3:14CV00378(AWT), 2017 WL 4082678, at *7 (D. Conn. Sept. 15,
2017) (awarding $275 hourly rate for attorney with 12 years of
experience); Parris v. Pappas, 844 F. Supp. 2d 262, 266 (D. Conn.
2012) (finding reasonable a $275 hourly rate for an attorney with
more than 11 years of legal experience); Doe v. Darien Bd. of
Educ., No. 3:11CV1581 (JBA), 2015 WL 8770003, at *5 (D. Conn.
Dec. 14, 2015) (“In light of Ms. DeVore’s significant experience
in the specific area of law at issue in this case and her ten
years of practicing law, $200/hour strikes the Court as too low.
The Court finds that an hourly rate of $375 is reasonable.”); Fuk
Lin Pau v. Jian Le Chen, No. 3:14CV841(JBA), 2015 WL 8490907, at
*2 (D. Conn. Dec. 10, 2015) (finding reasonable $350 hourly rate
for attorney with 10 years of experience).
Ms. Rinehart is a partner and has been a trial court
and appellate litigator for over 18 years.
Doroghazi Decl. at
The Court finds that $375.00 is a reasonable hourly rate
for Ms. Rinehart.
Friedman, 2017 WL 4082678, at *7, *12 ($375
hourly rate for attorneys with 17 and 20 years experience);
Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port
Auth., No. 3:03CV599(CFD), 2011 WL 721582, at *5 (D. Conn. Feb.
22, 2011) (finding $325 per hour a reasonable rate for a partner
with eighteen years of experience)).
Ms. Bildner is a litigation associate with four years
Doroghazi Decl. at ¶ 17.
The Court finds that
$220.00 is a reasonable hourly rate based on her experience.
Friedman, 2017 WL 4082678, at *12 ($250 hourly rate for attorney
with 6 years of experience); Doe, 2015 WL 8770003, at **5-6 (D.
Conn. Dec. 14, 2015) (finding $275 hourly rate to be reasonable
for attorney with 5 years of experience); Crawford v. City of New
London, No. 3:11-CV-1371 JBA, 2015 WL 1125491, at *3 (D. Conn.
Mar. 12, 2015) (concluding that $250 is a reasonable hourly rate
for an attorney with 8 years of experience); U.S. Bank Trust v.
Walber, No. 3:17-CV-00991 (CSH), 2017 WL 4613192, at *4 (D. Conn.
Oct. 16, 2017) ($250 for attorney with 6 years); Parris, 844 F.
Supp. 2d at 267 (finding $225 per hour an appropriate rate for an
attorney with five years of legal experience); Schuman v. Aetna
Life Ins. Co., No. 3:15-CV-01006 (SRU), 2017 WL 2662191, at *9
(D. Conn. June 20, 2017) ($200 is appropriate for an attorney
with 2 years of experience).
Ms. Chavez is a paralegal with over 20 years of
Doroghazi Decl. at ¶ 17.
In Connecticut, paralegals
have been awarded hourly rates ranging from $100 to $150.
Hartford Bd. of Educ., No. 3:11-CV-01381-GWC, 2017 WL 187138, at
*7 (D. Conn. Jan. 17, 2017) (concluding that $140 is a reasonable
paralegal hourly rate); Ramos v. Goauto Centers of Meriden, LLC,
No. 3:15-CV-00314 (JAM), 2016 WL 7424119, at *2 (D. Conn. Dec.
23, 2016) (finding $100 to be a reasonable paralegal hourly
rate); Doe, 2015 WL 8770003, at *6 (applying $140 hourly rate for
U.S. Bank Trust, 2017 WL 4613192, at *4 (citing KX
Tech LLC v. Dilmen LLC, No. 3:16-CV-00745, 2017 WL 2798248, at *9
(D. Conn. June 28, 2017) (finding $150 per hour “commensurate
with the hourly rates typically awarded for the work of
paralegals in this District” (collecting cases)).
In view of Ms.
Chavez’s experience, the Court finds that $140.00 is a reasonable
Hours Reasonably Expended
Beyond establishing a reasonable hourly rate, a
prevailing party seeking attorneys’ 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
See Tirona v. State Farm Mut. Auto. Ins. Co.,
821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted).
must guard against awarding fees and costs which are excessive,
and must determine which fees and costs were self-imposed and
Id. at 637 (citing INVST Fin. Group v. Chem-Nuclear
Sys., 815 F.2d 391, 404 (6th Cir. 1987), cert. denied, 484 U.S.
This 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
(S.D.N.Y. 1992) (citation omitted).
Time expended on work deemed
“excessive, redundant, or otherwise unnecessary” shall not be
See Gates, 987 F.2d at 1399 (quoting Hensley, 461
U.S. at 433-34).
Plaintiff contends that the time expended in connection
with Defendant’s motions for extension of time and its response
to his motion for class certification should be excluded.
Plaintiff’s position that the motions for extension of time were
not necessitated by any action on his part, and that Defendant
could have simply agreed to stay the class certification motion
pending discovery instead of opposing the motion.
As earlier noted, the Court should not award costs
associated with past work that will be still be useful to
Defendant in the present litigation.
2320672, at *4.
Aloha Airlines, 2007 WL
Neither the motions for extension of time nor
the opposition to class certification will be useful to Defendant
in this action.
Moreover, the Court declines to second guess
defense counsel’s litigation strategy.
It was not unreasonable
for Defendant to seek extensions of time to file an appropriate
responsive pleading challenging jurisdiction, which ultimately
led to the voluntary dismissal of the action.10
Further, it was
not unreasonable for Defendant to challenge the motion for class
Defendant had no obligation to agree to stay the
motion and the fact that Plaintiff filed the motion concurrently
with the complaint, then wished to stay it (even conceding that
it was a placeholder motion), suggests that it was prematurely
Thus, Plaintiff’s conduct, not Defendant’s, necessitated
the filing of the opposition to the motion.
Plaintiff also characterizes as “puzzling” Defendant’s
decision to oppose the motion when it planned to file a motion to
The Court questions the veracity of Plaintiff’s
statements, this being one of multiple examples of distortion of
the facts, at best, and/or misrepresentation, at worst.
Plaintiff conveniently omitted (or ignored) the fact that Rule
7(a) of the District of Connecticut’s Local Rules of Civil
Defendant sought the first extension because Mr.
Doroghazi was retained shortly before the deadline to respond.
Plaintiff disclaims any responsibility for contributing to the
motions to extend. However, delays can arguably be attributed,
at least in part, to the fact that Defendant was hailed into a
court across the country. Moreover, according to defense
counsel’s time sheets, Plaintiff’s counsel was contacted
regarding the extensions prior to the filing of the motions.
Mot., Doroghazi Decl., Ex. J.
Procedure requires memoranda in opposition to be filed within 21
days of the filing of a motion.
Because this deadline preceded
the filing of the motion to dismiss on April 21, 2017, Defendant
was simply complying with court deadlines by filing its
opposition on March 14, 2017.
Defendant did not have to agree
with Plaintiff’s request for a stay merely because its motion to
dismiss might have been in the works.
Success on a motion can
never be guaranteed and parties are entitled to preserve their
rights and respond to the opposing party’s requests for relief in
The Court therefore declines to exclude outright
the time expended in connection with the motions for extension of
time and opposition to the motion for class certification.
After conducting a thorough review of defense counsel’s
submissions, the Court finds that reductions should be made for
clerical tasks, insufficient descriptions, reusable work, and
“[C]lerical or ministerial costs are part of an
attorney’s overhead and are reflected in the charged hourly
HRPT Props. Trust v. Lingle, 775 F. Supp. 2d 1225, 1241
(D. Haw. 2011) (alteration in original) (citations and quotations
The following is a list of tasks previously deemed
clerical or ministerial in this district and are therefore noncompensable:
reviewing Court-generated notices; scheduling
dates and deadlines; calendering dates and
deadlines; notifying a client of dates and
deadlines; preparing documents for filing with the
Court; filing documents with the Court; informing
a client that a document has been filed;
personally delivering documents; bates stamping
and other labeling of documents; maintaining and
pulling files; copying, printing, and scanning
documents; receiving, downloading, and emailing
documents; and communicating with Court staff.11
Haw. Motorsports Inv., Inc. v. Clayton Grp. Servs., Inc., Civ.
No. 09–00304 SOM–BMK, 2010 WL 4974867, at *5 (D. Haw. Dec. 1,
2010), adopted by 2010 WL 5395669 (D. Haw. Dec. 22, 2010) (also
deeming clerical identification and organization of exhibits);12
see also, e.g., Yamada v. Weaver, Civil No. 10–00497 JMS–RLP,
2012 WL 6019363, at *10 (D. Haw. Aug. 30, 2012), adopted in
pertinent part by 2012 WL 6019121 (D. Haw. Nov. 30, 2012)
(deeming clerical work completed on table of authorities).
Here, Ms. Chavez expended 5.2 hours on clerical tasks
such as e-filing documents and preparing exhibits.13
Even if Ms.
This list is a sampling and is not exhaustive.
Although selecting exhibits to be used in a case is a
legal task, simple review and/or organization is clerical. I.T.
v. Dep’t of Educ., Haw., 18 F. Supp. 3d 1047, 1054 (D. Haw.
The Court finds her entries dated 3/10/17 (“Review,
finalize and e-file Appearances for J. Doroghazi and K. Rinehart,
Corporate Disclosure Statement and Motion for Extension of Time
to Plead”); 4/6/17 (“Draft and forward second motion for
extension of time to J. Doroghazi, finalize and e-file and
forward client copy to J. Doroghazi”); 4/20/17 (“Review, edit and
prepare exhibits to Motion to Dismiss and supporting documents;
confer with E. Bildner regarding same”); and 4/21/17 (“Various
Chavez, a paralegal, completed the tasks, they are noncompensable.
This is because a clerical task is non-compensable,
whether billed at an attorney or paralegal rate.
Jenkins, 491 U.S. 274, 288 n.10 (1989) (“Of course, purely
clerical or secretarial tasks should not be billed at a paralegal
rate, regardless of who performs them.”).
Certain of the clerical tasks were block billed14 with
a compensable task.
That is, Ms. Chavez included multiple tasks
within a single time entry.15
Therefore, even though the entire
time entry may not have involved clerical tasks, the Court will
recommend exclusion of the entire entry because the use of block
billing precludes the Court from reasonably apportioning the time
between the clerical task and the compensable task.
I.T., 18 F.
Supp. 3d at 1054 (“[I]n light of the fact that this Court cannot
determine how much of the 2.3 hours attributed to the entry as a
whole was spent on the legal services [versus clerical work],
this Court agrees with the magistrate judge that the entire entry
internal communications with J. Doroghazi regarding motion to
dismiss and supporting documents; attention to e-filing and
forwarding as-filed copy to J. Doroghazi”) to include clerical
The Court will discuss block billing later.
For example, Ms. Chavez’s 4/20/17 would be compensable
as to her conferral with Ms. Bildner, but the inclusion of a
clerical task (preparing exhibits) within the same time entry
precludes recovery of the entire time entry because the Court has
no way to accurately apportion the time between tasks.
should be excluded as improper block billing.”).
Based on its
careful review of the time sheets, the Court recommends that the
district court deduct 5.2 hours from Ms. Chavez for her work on
The Court finds that Mr. Doroghazi’s 4/17/17 entry must
be excluded due to the inadequacy of the description.
54.3(d)(2) requires that the “party seeking an award of fees must
describe adequately the services rendered, so that the
reasonableness of the requested fees can be evaluated.”
The rule further provides:
[C]ounsel should be sensitive to matters giving
rise to attorney-client privilege and attorney
work product doctrine, but must nevertheless
furnish an adequate non-privileged description of
the services in question. If the time
descriptions are incomplete, or if such
descriptions fail to describe adequately the
services rendered, the court may reduce the award
accordingly. For example, the time entries for
telephone conferences must include an
identification of all participants and the reason
for the call.
Local Rule 54.3(d)(2).
Mr. Doroghazi’s 4/17/17 entry states:
“Telephone call with insurer.”
Mot., Doroghazi Decl., Ex. J.
properly includes the participants, but fails to identify the
purpose of the call.
Entries that are not sufficiently
descriptive preclude an assessment of reasonableness.
Court recommends a reduction of 0.3 hours for Mr. Doroghazi.
Defendant acknowledges that it is only entitled to fees
for work that will be of no utility in this litigation.
the Court finds that nearly all of the requested hours relate to
work that will be of no use here, there are a few time entries
that relate to work that has been of use here; namely, the
corporate disclosure statement.
The content of the corporate
disclosure statement is identical in Moskowitz I and this action.
Compare Civil No. 3:17-00307 AWT (D. Conn.), Doc. No. 10 with
Civil No. 17-00299 HG-KSC, Doc. No. 12.
Mr. Doroghazi and Ms.
Chavez expended 0.2 hours and 0.3 hours, respectively, on tasks
associated with the corporate disclosure statement - 3/8/17
(“Draft corporate disclosure statement and forward to J.
Doroghazi”) and 3/10/17 (“Final revision to motion for time,
appearances, and corporate disclosure statement and e-mail”).16
As such, the Court recommends that Mr. Doroghazi’s hours be
reduced by 0.2 and that Ms. Chavez’s hours be reduced by 0.3.
Finally, though limited, Mr. Doroghazi utilized block
“The term ‘block billing’ refers to the time-keeping
method by which each lawyer and legal assistant enters the total
Mr. Doroghazi’s 3/10/17 entry included compensable
tasks, but as the Court previously explained, the inclusion of a
non-compensable task within the same time entry precludes
recovery of the entire time entry because the Court has no way to
reasonably apportion the time between tasks.
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) (citations and quotation
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).
See also id. (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”)); see also Hensley, 461 U.S. at
437 (holding that applicant should “maintain billing time records
in a manner that will enable a reviewing court to identify
Indeed, it is challenging to assess the
reasonableness of a time entry when it includes several tasks.
Counsel’s use of block billing makes it difficult, if
not impossible, for the Court to assess the reasonableness of the
hours expended as to those entries.
Hence, the Court finds it
appropriate to impose an across-the-board reduction of 20% as to
the entries that are in the “block billing” format.
729 F.3d at 1203 (citing Welch, 480 F.3d at 948 (affirming 20%
cut to hours where fee applicant block billed, because court
relied on third-party report that block billing increased number
of hours by 10–30%)); Signature Homes of Haw., LLC v. Cascade
Sur. and Bonding, Inc., No. CV 06-00663 JMS-BMK, 2007 WL 2258725,
at *3 (D. Haw. Aug. 3, 2007) (reducing block billed hours by
The Court emphasizes that its proposed reduction applies
only the block billed entries; the 20% reduction does not apply
to all hours.
Mr. Doroghazi billed 0.9 hours in the block format 4/5/17 (“E-mail regarding extension and e-mail E. Bildner re
working on insurance write up”) and 5/15/17 (“Consider strategy
due to plaintiff’s failure to respond to motion to dismiss and email E. Bildner and K. Rinehart re same; review notice of
voluntary dismissal; e-mail re same”).
Applying the 20%
reduction, the Court recommends that Mr. Doroghazi’s hours be
reduced by 0.18.
Based on the foregoing, the Court finds that defense
counsel reasonably expended 74.52 hours on work in Moskowitz I
that will be of no utility here:
Mr. Doroghazi - 15.82 hours;
Ms. Rinehart - 2 hours; Ms. Bildner - 53.2 hours; and Ms. Chavez
- 3.5 hours.
Total Fee Award
In sum, the Court finds that Defendant is entitled to
$17,848.20 in fees:
The Court recommends that the district court award Defendant
$17,848.20 in fees.
Defendant also requests $1,196.23 in costs, which is
comprised of $1,192.29 for legal research and $3.94 for a
Plaintiff challenges the legal research costs
because Defendant did not provide receipts nor specify the
motions to which the research applied.
Plaintiff contends that
Defendant should not be reimbursed for legal research costs
associated with the opposition to the motion for class
certification or the motions for extension of time.
Reasonable costs are recoverable “as long as they are
not related to work products that can used in the second action.”
Aloha Airlines, 2007 WL 2320672, at *7 (citation omitted).
Telephone costs, research costs, postage and express delivery
costs, and pro hac vice application costs are among those
recoverable under FRCP 41(d).
In the present case, the Court finds that Defendants
reasonably incurred the requested legal research and conference
Mr. Doroghazi represents that the costs “related to
the motions and briefing that were filed in the Connecticut
Doroghazi Decl. at ¶ 27.
The Court having already
found that the motions and briefing filed in Moskowitz I will not
contribute to the defense here, any related costs are
An itemization of the legal research costs is not
necessary given Mr. Doroghazi’s representation that they related
to the motions and briefing filed in Moskowitz I.
costs totaling $1,192.29 are manifestly reasonable for the motion
to dismiss and opposition to motion for class certification.17
Accordingly, the Court recommends that Defendant be awarded
$1,196.23 in costs.
Based on the foregoing, the Court recommends that
Defendant be awarded $17,848.20 in fees and $1,196.23 in costs
pursuant to FRCP 41(d), and that Plaintiff be directed to remit
payment no later than two weeks after the issuance of an order
taking action on this Findings and Recommendation.
Lastly, Defendant requests a stay until Plaintiff pays
the FRCP 41(d) award and dismissal if Plaintiff fails to pay.
The time sheets establish that legal research was
conducted in connection with these filings.
The Court, exercising its discretion, declines to stay the matter
because doing so might disrupt the timely and orderly disposition
of this Motion.18
At this time, the Court also recommends denial
without prejudice of Defendant’s request to dismiss this action
if payment is not timely made.
If Plaintiff fails to timely pay
Defendant, Defendant may request that the district judge dismiss
the action, as this Court is without the authority to do so.
In accordance with the foregoing, the Court HEREBY
FINDS AND RECOMMENDS that Defendant’s Motion be GRANTED IN PART
AND DENIED IN PART.
The Court recommends that Defendant be
awarded $17,848.20 in fees and $1,196.23 in costs pursuant to
FRCP 41(d), and that Plaintiff be directed to remit payment no
later than two weeks after the issuance of an order taking action
on this Findings and Recommendation.
The Court declines to stay the matter at this time and
recommends that Defendant’s request to dismiss this action be
DENIED WITHOUT PREJUDICE, subject to renewal before the district
judge if Plaintiff fails to timely remit payment.
Also pending before the Court is Defendant’s Motion to
Stay Pending Decision of D.C. Circuit, which will be addressed by
a separate order.
IT IS SO FOUND AND RECOMMENDED.
Honolulu, Hawaii, October 30, 2017.
Kevin S.C. Chang
United States Magistrate Judge
Civil No. 17-00299 HG-KSC; Moskowitz v. American Savings Bank, F.S.B.;
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
DEFENDANT AMERICAN SAVINGS BANK, F.S.B.’S MOTION FOR RULE 41(d) COSTS
AND STAY OF PROCEEDINGS
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