Bostrom et al v. PNC Bank N.A.

Filing 47

MEMORANDUM DECISION AND ORDER RE: PNC BANK'S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS. NOW THEREFORE IT IS HEREBY ORDERED: Defendant PNC Bank's Motion for Award of Attorney Fees and Costs pursuant to the June 9, 2016 Order (Dkts. 20 and 24 ) is GRANTED in part and DENIED in part. The Bostroms' former counsel Andrew Schoppe must pay PNC Bank $5,122.50 in fees and $85.00 in costs and expenses. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ERICK and PEGGY BOSTROM, a
married couple,
Plaintiffs,

Case No. 1:15-cv-00102-EJL-CWD
MEMORANDUM DECISION AND
ORDER RE: PNC BANK’S MOTION
FOR AWARD OF ATTORNEY FEES
AND COSTS

v.
PNC BANK, N.A., and DOES 1-10,
inclusive,
Defendants.

INTRODUCTION
Pending before the Court is Defendant PNC Bank’s Motion for Award of Attorney
Fees and Costs (Dkt. 24.) In an earlier motion, PNC Bank asked the Court to compel
certain discovery from Plaintiffs Erick and Peggy Bostrom, and to sanction the Bostroms’
former counsel, Andrew Schoppe, for various discovery related inadequacies. (Dkt. 20.)
The Court granted PNC Bank’s motion to compel and indicated reasonable attorney fees
and expenses would be appropriate sanctions against Mr. Schoppe. The Court requested
PNC Bank to submit a bill of costs and fees so the Court could determine the reasonable
amount of fees and expenses pursuant to the Court’s prior order, permitting also the
MEMORANDUM DECISION AND ORDER RE: PNC BANK’S MOTION FOR
AWARD OF ATTORNEY FEES AND COSTS - 1

Bostroms and Mr. Schoppe an opportunity to respond to contest the reasonableness of the
amounts requested by PNC Bank. (Dkt. 20 at 15.) Neither the Bostroms nor Mr. Schoppe
responded.
PNC Bank requests $5,260.00 in attorney fees and $235.00 in costs. (Dkt. 24.) For
the reasons that follow, the Court will grant in part and deny in part PNC Bank’s motion
for fees and costs.
COURT’S ORDER AWARDING SANCTIONS (DKT. 20)
On June 9, 2016, the Court granted PNC Bank’s motion to compel and motion for
sanctions. (Dkt. 20.) Specifically, the Court ruled that sanctions would be awarded
against Mr. Schoppe for the following:
• Reasonable attorney fees and expenses associated with the several letters,
emails, and time spent by PNC bank attempting to contact the Bostroms by
telephone to obtain their supplemental disclosures. Id. at 11.
• Reasonable attorney fees and expenses associated with the scheduling and
appearing for the February 25, 2016 depositions of Erick and Peggy
Bostrom, including court reporter fees, and any additional expenses
incurred due to the need to re-schedule the depositions. Id. at 12.
• Reasonable attorney fees and expenses associated with procuring PNC
Bank’s written discovery requests from the Bostroms. Id.
• Reasonable attorney fees and expenses associated with the motion to
compel. Id. at 13.
DISCUSSION
I. Attorney Fees
The Court finds the majority of the attorney fees itemized in Thompson’s
Affidavit in Support of the Motion for Award of Attorney Fees and Costs are reasonable
MEMORANDUM DECISION AND ORDER RE: PNC BANK’S MOTION FOR
AWARD OF ATTORNEY FEES AND COSTS - 2

and, for the reasons that follow, will grant in part, and deny in part, PNC Bank’s attorney
fee request.
In the Ninth Circuit, the proper method for determining a reasonable attorney fee
is to use the “lodestar method.” Haeger v. Goodyear Tire and Rubber Co., 813 F.3d
1233, 1249 (9th Cir. 2016). First, the Court calculates attorney fees by multiplying the
number of hours reasonably spent by counsel by a reasonable hourly rate. Cotton v. City
of Eureka, Cal., 889 F. Supp. 2d 1154, 1165 (N.D. Cal. 2012). In determining a
reasonable hourly rate, the Court considers the “experience, skill and reputation of the
attorney requesting fees,” Trevino v. Gates, 99 F.3d 911, 924 (9th Cir.1996), as well as
“the prevailing market rates in the relevant community,” Blum v. Stenson, 465 U.S. 886,
895 (1984).
Once the lodestar amount is determined, the Court “assesses whether it is
necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr
factors 1 that are not already subsumed in the initial lodestar calculation.” Morales v. City
of San Rafael, 96 F.3d 359, 363–64 (9th Cir.1996) (footnote omitted). “There is a strong
presumption that the lodestar figure represents a reasonable fee. Only in rare instances

1

The Kerr factors 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 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 v. Screen Extras Guild, Inc., 526 F.2d 67, 69–70 (9th Cir. 1975).

MEMORANDUM DECISION AND ORDER RE: PNC BANK’S MOTION FOR
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should the lodestar figure be adjusted on the basis of other considerations.” Id. at 363 n. 8
(internal quotation marks and citation omitted).
Here, PNC Bank seeks attorney fees in the amount of $5,260.00 for 27.4 hours of
work encompassed within the order for sanctions, performed by Jeffery A. Thompson
and his associate Jade C. Stacey. Mr. Thompson charged $250.00 per hour and Mr.
Stacey charged $175.00 per hour. The Court finds the hourly rates charged by the
attorneys in this matter are comparable to the reasonable hourly rate for attorneys of
similar experience and work in the Boise, Idaho area.
As to the total number of hours billed, the Court finds that, in consideration of Mr.
Schoppe’s numerous attempts to avoid discovery requests made by PNC Bank, the
amount of time recorded was reasonable, but for a few exceptions. Specifically, the Court
finds the time recorded for leaving voicemail messages is excessive and the time
recorded to prepare the notices of deposition fall outside the scope of work PNC Bank is
permitted to recover pursuant to the Court’s order for sanctions.
While the Court permitted PNC Bank to recover its attorney’s time spent to
contact the Bostroms by telephone to obtain their supplemental disclosures, the Court
finds, in the context of this case, Mr. Stacey’s 0.1 hour, or six minutes recorded for each
telephone call he made is excessive. It is apparent from the June 23, 2016 hearing and the
record that Mr. Schoppe could not be reached by telephone, which necessitated Mr.
Stacey to leave voicemail messages. But, billing six minutes for each voicemail is
excessive. Mr. Stacey billed for telephone calls or voicemails to Mr. Schoppe on at least
MEMORANDUM DECISION AND ORDER RE: PNC BANK’S MOTION FOR
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seven occasions, amounting to approximately 0.7 hours. The Court finds 0.2 hours more
reasonably reflects the time in which it takes to leave seven voicemail messages, unless a
considerable amount if detail is included with each voicemail. Moreover, the Court finds
also that 0.2 hours recorded by Mr. Thompson for drafting the initial notices of
deposition for the Bostroms falls outside the scope of the work PNC Bank is permitted to
recover pursuant to the Court’s order, given deposition notices are clerical tasks and there
is no indication these notices were changed in any way other than the dates, when
rescheduled. The Court will adjust Mr. Stacey’s and Mr. Thompson’s time accordingly.
A. Summary of reductions
The following table summarizes the Court’s reductions to PNC Bank’s requested
hours.
Attorney

Hours
claimed

Jeffery A. Thompson
Jade C. Stacey

6.2
21.2

Reduction of
Hours reasonably
Excessive/Unreasonable expended
Entries
0.2
6
0.5
20.7

B. Lodestar
As shown in the table below, the total lodestar figure for attorney fees based on the
hourly rates and hours reasonably expended (as determined above) is $5,122.50.
Attorney

Reasonable Rate

Jeffery A. Thompson

$250.00

Hours Reasonably
Expended
6

Jade C. Stacey

$175.00

20.8

Lodestar
$1,500.00

$3,622.50
TOTAL $5,122.50

MEMORANDUM DECISION AND ORDER RE: PNC BANK’S MOTION FOR
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II. Reasonableness of Expenses Requested
The Court indicated reasonable expenses would be awarded to PNC Bank
associated with procuring the supplemental initial disclosures and responses to written
discovery requests, as well as any costs associated with the Bostroms’ initial failure to
appear for their depositions. In total, PNC Bank seeks $235.00 in costs and expenses,
which include $85.00 for the court reporter’s appearance fee at the Bostroms’ initial
depositions, and $150.00 for the anticipated court reporter services during the Bostroms’
re-scheduled depositions. 2 The Court finds the $85.00 expense for the Court reporter’s
appearance at the initial deposition falls within the Court’s Order for sanctions. However,
PNC Bank has not indicated and the Court cannot reasonably determine how the $150.00
cost for the anticipated court reporter services for the re-scheduled depositions would be
any different than if the depositions had proceeded as initially scheduled on February 25,
2016. Accordingly, the Court will award PNC Bank costs in the amount of $85.00.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Defendant PNC Bank’s Motion for Award of Attorney Fees and Costs
pursuant to the June 9, 2016 Order (Dkts. 20, 24) is GRANTED in part
and DENIED in part. The Bostroms’ former counsel Andrew Schoppe
must pay PNC Bank $5,122.50 in fees and $85.00 in costs and expenses.
October 07, 2016

2

The Court reporter indicated she will charge Elam and Burke $75.00 per one half day for the future
depositions of Plaintiffs. Aff. Thompson, ¶ 10 (Dkt. 24-1 at 3). Thompson estimates Plaintiffs’
depositions will take one half day each. Id.

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