Moore et al v. Deer Valley Trucking, Inc.
Filing
88
MEMORANDUM DECISION AND ORDER Plaintiffs' Petition for Allowance of Attorney Fees (Dkt. 71 ) is GRANTED IN PART and DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHAWN A. MOORE and DEDE
JARDINE,,
Case No. 4:13-cv-00046-BLW
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
DEER VALLEY TRUCKING, INC.,
Defendant.
INTRODUCTION
The Court has before it Defendant’s Motion for Judgment as a Matter of Law and
Alternative Motion for a New Trial (Dkt. 76), Plaintiffs’ Motion for Liquidated Damages
(Dkt. 67), and Plaintiffs’ Petition for Allowance of Attorney Fees (Dkt. 71). Soon after
the motions became ripe, the case was automatically stayed because of a bankruptcy
filing. The Ninth Circuit has since “terminated” the stay “as to movants, Jardine and
Moore, for the limited purpose of allowing the United States District Court for the
District of Idaho to make a final determination of attorneys’ fees and costs. . . .” Dkt. 871. Accordingly, the Court will address only the motion for fees and costs below.
MEMORANDUM DECISION AND ORDER - 1
ANALYSIS
1.
Attorney Fees
Plaintiffs ask for an award of fees and costs for prevailing on their claims against
DVT. In an FLSA case such as this one, Title 29 § 216(b) provides that “[t]he court in
such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow
a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29
U.S.C. § 216(b). The “case law construing what is a ‘reasonable’ fee applies uniformly”
to all federal fee-shifting statutes. City of Burlington v. Dague, 505 U.S. 557, 562 (1992);
see also Anderson v. Director, Office Workers Compensation Programs, 91 F.3d 1322,
1325 (9th Cir.1996). In determining a reasonable attorney’s fee, the Court must begin
with the “lodestar” figure which is “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also Fischer v. SJB–P.D., Inc., 214 F.3d 1115, 1119 (9th Cir .2000).
There is a “strong presumption” that the lodestar is the reasonable fee.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565
(1986); see also Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir.1992). The Court
can only deviate from the lodestar figure based on factors other than those already taken
into consideration in the lodestar calculation. Morales v. City of San Rafael, 96 F.3d 359,
363–64 (9th Cir.1996), amended on other grounds, 108 F.3d 981 (1997). That is, factors
such as the novelty and complexity of the issues, the special skill and experience of
counsel, the quality of representation, the results obtained, and the contingent nature of
the fee agreement are to be considered when determining the lodestar amount rather than
MEMORANDUM DECISION AND ORDER - 2
when determining whether deviation from the lodestar amount is warranted. Id. at 364,
n.9.
Here, DVT does not dispute that Plaintiffs are entitled to an award of attorney
fees. It does, however, dispute the amount of fees and whether certain costs and fees
should be included.
First, DVT suggests that Plaintiffs have not provided evidence that Plaintiffs’
counsel charged prevailing rates. A district court should calculate the reasonable hourly
rate according to the prevailing market rates in the relevant community, which is
typically the community in which the district court sits. Schwarz v. Secretary of Health
and Human Services, 73 F.3d 895, 906 (9th Cir.1995). The relevant community in this
case is Southeast Idaho.
The affidavit of lead counsel for Plaintiffs, James Holman, is sufficient to establish
the prevailing rate for counsel in Southeast Idaho. Dkt. 70. Moreover, I have been one of
only two district judges in the District of Idaho for the past 21 years, and I am familiar
with the rates charged by lawyers in the District of Idaho for FLSA cases. The rates listed
by Plaintiffs’ counsel are reasonable prevailing rates for attorneys of Plaintiffs’ counsel’s
experience, reputation and expertise. Dkt. 70.
Next, DVT asks the Court to reduce the fee award for attorney time spent dealing
with the expert in this case because the expert had to revise his opinion to address some
mistakes, and because Plaintiffs apparently recovered less than they initially expected to
recover based upon the expert’s revision. If a plaintiff achieves only partial or limited
success, the Court does have discretion to reduce the amount of the fee award. See
MEMORANDUM DECISION AND ORDER - 3
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). However, the Court is not required to
reduce the fee award simply because some mistakes were made, which resulted in
reducing the damages by a few thousand dollars as happened in this case. The Court will
not exercise its discretion to do that here – the Plaintiffs ultimately prevailed on their
claims even though the damages were not what they originally hoped to recover.
Counsel’s time spent working with the expert is recoverable.
Finally, DVT asks the Court to deny Plaintiffs’ request for costs attributed to the
expert, postage and photocopies. With respect to the expert fees, DVT argues that the
FLSA does not allow for an award of expert fees. DVT cites the Tenth Circuit’s decision
in Gray v. Phillips Petroleum Co., 971 F.2d 591 (10th Cir. 1992) for the proposition that
§ 216(b) does not provide explicit statutory authority for the recovery of expert witness
fees. Instead, it provides only for the shifting of a reasonable attorney’s fee and the costs
of the action. Gray references West Virginia Hospitals, Inc. v. Casey, 499 U.S. 83 (1991)
for the conclusion that the phrase “a reasonable attorney’s fee” does not include within its
scope expert witness fees. Moreover, “costs” are defined in 28 U.S.C. § 1920, which does
not include expert witness fees unless the expert is appointed by the court. 28 U.S.C. §
1920(6).
The Ninth Circuit has not addressed this issue, but the Tenth Circuit’s conclusion
is an accurate reading of the statute, Casey, and § 1920. It also appears to be in line with
several other courts which have addressed the issue. See e.g., Parness v. Piazza
Benvenuto Ristorante, Pizzeria and Market, Inc., 2009 WL 1117362, *2 (S.D.Fla. 2009);
Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir. 1999); James v. Fenske, 2013
MEMORANDUM DECISION AND ORDER - 4
WL 656821, *2 (D.Colo. 2013); Padurjan v. Aventura Limousine & Transp. Service,
Inc., 441 Fed.Appx 684, 687 (11th Cir. 2011). The Court agrees with this conclusion, and
will not award expert witness fees. The same can be said for the minimal postage and
photocopy fees – they are not statutorily authorized, and Plaintiffs may not recover costs
for them.
ORDER
IT IS ORDERED:
1. Plaintiffs’ Petition for Allowance of Attorney Fees (Dkt. 71) is GRANTED IN
PART and DENIED IN PARTas explained above.
DATED: September 12, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 5
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