Hardenbrook et al v. United Parcel Service, Inc.

Filing 273

ORDER ADOPTING REPORT AND RECOMMENDATION. NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on 8/13/2013 265 is INCORPORATED by reference and ADOPTED IN ITS ENTIRETY and the Court HEREBY ORDERS as follows: Plaintiff' ;s Petition for Attorney Fees 153 is GRANTED in part in theamount of $288,993.76. Defendant's Motion for Attorney Fees 161 is GRANTED in part in the amount of $324,379.00. Defendant's Bill of Costs 163 is APPROVED in the amo unt of $3,482.73. Plaintiff's Bill of Costs 152 is APPROVED in the amount of $3,893.09. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAREL HARDENBROOK, an
individual,

Case No. 1: 07-CV-00509-EJL
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiffs,
vs.
UNITED PARCEL SERVICE, CO., a
Delaware Corporation,
Defendant.

INTRODUCTION
On August 13, 2013, United States Chief Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”), recommending that the Motions for Attorney Fees
and Bills of Costs filed by both sides be granted in part. (Dkt. 265.)1 Any party may
challenge a Magistrate Judge’s proposed recommendation by filing written objections to the
Report within fourteen days after being served with a copy of the same. 28 U.S.C. §
636(b)(1) and District of Idaho Local Rule 72.1(b). The district court must then “make a de
novo determination of those portions of the report or specified proposed findings or

1

Magistrate Judge Dale issued an initial Report and Recommendation on August 7, 2013 but later
amended that Report and Recommendation to address Plaintiff’s Bill of Costs. (Dkt. 263, 265.)
ORDER ADOPTING REPORT AND RECOMMENDATION- 1

recommendations to which objection is made.” Id. The district court may accept, reject, or
modify in whole or in part, the findings and recommendations made by the Magistrate Judge.
Id.; see also Fed. R. Civ. P. 72(b).
Defendant filed objections to the Report arguing the award of attorney fees and costs
to Plaintiff is premature because there is no final judgment entered as to Plaintiff’s damages.
(Dkt. 266.) Defendant further objects to the Report’s premise that the Plaintiff’s damages are
$563,554. Plaintiff did not file any objections but did file a response to the Defendant’s
objections. (Dkt. 267.)
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Darel Hardenbrook, along with two other individuals initiated this action
against the Defendant, United Parcel Service, Co. (UPS), alleging claims related to his
wrongful termination from his employment at UPS. Eventually, Mr. Hardenbrook’s claim
for wrongful termination went to trial where a jury returned a verdict for $1,476,367 against
UPS. In post-trial motions, this Court granted UPS’s Motion to Amend the Judgment and
allowed Mr. Hardenbrook the choice of accepting a remittitur or going forward on a new
trial. Mr. Hardenbrook accepted the remittitur and an Amended Judgement was entered in
the amount of $713,169.00. (Dkt. 211.) The Ninth Circuit has since issued a decision further
reducing the remittitur amount by $149,615. (Dkt. 246.)2

2

The Ninth Circuit also remanded the determination as to the proper valuation of the UPS
restricted stock units to this Court. (Dkt. 246.) The Court has issued an Order on the remanded question.
ORDER ADOPTING REPORT AND RECOMMENDATION- 2

Prior to the Amended Judgment being entered, both parties filed Motions for Attorney
Fees. Both motions were denied as the Court determined that neither party prevailed. (Dkt.
228, 237.) In addition, the Court denied the Bills of Costs. (Dkt. 162, 163, 228, 229, 230,
237.) The parties appealed and the Ninth Circuit reversed this Court’s Order holding that Mr.
Hardenbrook was the prevailing party against UPS and UPS was the prevailing party against
one of the original Plaintiffs. The case was remanded for this Court to “apportion to each of
the parties only the attorney fees related to the claims upon which each party prevailed.”
(Dkt. 257 at 4.) The matter was referred to Magistrate Judge Dale who undertook the task of
sorting through the attorney fee petitions to apportion the fees to each of the parties as
directed by the Ninth Circuit. The Report encompasses Magistrate Judge Dale’s well
reasoned recommendations concerning attorney fees in this case. This Court has reviewed
the same and finds as follows.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report which objection is made.” Id. Where, however,
no objections are filed the district court need not conduct a de novo review. In United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements
of 28 U.S.C. 636(b)(1)(C):

ORDER ADOPTING REPORT AND RECOMMENDATION- 3

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, “to the
extent de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.” Peretz, 501 U.S. at 939 (internal
citation omitted). Neither the Constitution nor the statute requires a district
judge to review, de novo, findings and recommendations that the parties
themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an
objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.”); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for
Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days
of service of the Report and Recommendation). “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
In this case, UPS filed objections and, therefore, the Court has conducted a de novo
review of those portions of the Report. The Court has also reviewed the entire Report as well
as the record in this matter for clear error on the face of the record and finds as follows.
DISCUSSION
The objection filed by UPS challenges that the award of attorney fees is premature
given the fact that this Court had not yet, at the time the Report was issued, ruled upon the
Ninth Circuit’s separate order remanding this case as to the question of whether the Court

ORDER ADOPTING REPORT AND RECOMMENDATION- 4

had correctly calculated the present value of the restricted stock. (Dkt. 246.) UPS also objects
the Report’s premise that the Plaintiff’s damages are $563,554; arguing the Ninth Circuit
affirmed only $310,768 of the Judgment but reversed the $149,615 in back pay awarded and
remanded the $252,786 awarded in restricted stock. (Dkt. 266.) This Court has since
addressed the remand issue concluding its prior order correctly calculated the value of the
restricted stock at $252,786. As such, the objection filed by UPS is moot. The Report’s
calculation of damages at $563,554 is correct and the award of attorney fees is not premature.
Furthermore, the Court has reviewed the Report and finds it to be well founded in law
and consistent with this Court’s own view of the evidence in the record. Acting on the
recommendation of Magistrate Judge Dale, and this Court being fully advised in the
premises, the Court agrees with Magistrate Judge Dale’s conclusions and will adopt the
same.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 13, 2013 (Dkt. 265) is INCORPORATED by reference
and ADOPTED IN ITS ENTIRETY and the Court HEREBY ORDERS as follows:
1)

Plaintiff’s Petition for Attorney Fees (Dkt. 153) is GRANTED in part in the
amount of $288,993.76.

2)

Defendant’s Motion for Attorney Fees (Dkt. 161) is GRANTED in part in the
amount of $324,379.00.

ORDER ADOPTING REPORT AND RECOMMENDATION- 5

3)

Defendant’s Bill of Costs (Dkt. 163) is APPROVED in the amount of
$3,482.73.

4)

Plaintiff’s Bill of Costs (Dkt. 152) is APPROVED in the amount of
$3,893.09.

DATED: February 7, 2014

Honorable Edward J. Lodge
U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION- 6