Yu v. Idaho State University et al

Filing 198

MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S MOTION FOR PAYMENT OF EXPENSES AND DEFENDANT'S MOTION TO STRIKE (DKTS. 183, 189). IT IS HEREBY ORDERED as follows: Defendant's Motion to Strike Plaintiff's Reply in Support of Motion to Obtain Expenses (Dkt. 189 ) is DENIED. Plaintiff's Motion to Obtain Expenses Incurred as a Result of the Continuance (Dkt. 183 ) is GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded $21,427.00, as described herein. A Judgment shall be entered separately. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)

Case 4:15-cv-00430-REB Document 198 Filed 08/14/20 Page 1 of 17

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JUN YU,

Case No.: 4:15-cv-00430-REB

Plaintiff,
vs.
IDAHO STATE UNIVERSITY,
Defendant.

MEMORANDUM DECISION AND
ORDER ON PLAINTIFF’S MOTION
FOR PAYMENT OF EXPENSES AND
DEFENDANT’S MOTION TO
STRIKE (DKTS. 183, 189)

The Court entered a Trial Decision, With Findings of Fact and Conclusions of Law (Dkt.
181) on May 31, 2020 and a Judgment (Dkt. 182) on June 1, 2020, resolving the case. Now
pending are three post-trial motions: Plaintiff’s Motion to Obtain Expenses Incurred as a Result
of the Continuance (Dkt. 183), Defendant’s Motion for Attorney Fees (Dkt. 186), and
Defendant’s Motion to Strike Plaintiff’s Reply in Support of Motion to Obtain Expenses (Dkt.
189).1 Having reviewed the briefing and supporting filings, and otherwise being fully advised,
the Court enters the following Decision and Order resolving Plaintiff’s Motion to Obtain
Expenses and Defendant’s Motion to Strike. Defendant’s Motion for Attorney Fees will be the
subject of a separate decision.

1

Yu filed a Notice of Appeal on June 29, 2020. Such appeal remains pending. Although
filing a notice of appeal divests the district court of jurisdiction over aspects of the case involved
in the appeal, the district court nonetheless retains the power to award attorneys’ fees after a
notice of appeal from a decision on the merits has been filed. See Estate of Conners by Meredith
v. O’Connor, 6 F.3d 656 (9th Cir. 1993); Masalosalo by Masalosalo v. Stonewall Ins. Co., 718
F.2d 955 (9th Cir. 1983).

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I. BACKGROUND
After Defendant Idaho State University (“ISU”) dismissed Plaintiff Jun Yu (“Yu”) from
its doctoral degree program in clinical psychology, Yu sued ISU, alleging claims for
discrimination, deprivation of constitutional rights, and negligent infliction of emotional distress.
Compl. (Dkt. 1). Yu later amended his Complaint to add 15 additional claims, including various
claims sounding in contract law. FAC (Dkt. 41). All of Yu’s claims except his Title VI
discrimination claim were dismissed on summary judgment. (Dkt. 63.) Yu’s motion for
reconsideration of the summary judgment decision was denied. (Dkt. 72.)
Approximately one month before the trial date, ISU moved to continue the trial setting
for at least two months due to an unforeseen personal circumstance involving ISU’s lead
counsel. (Dkt. 115.) The Court heard from both parties as to the request for a continuance and
concluded that the unforeseen circumstances would justify a continuance regardless of whether it
had been requested by the Defendant or by the Plaintiff. The Court granted the motion over Yu’s
opposition, but in doing so recognized that just as a continuance was justified, so also would be
requiring that ISU, as the party requesting the continuance at such a late date, “pay the expenses,
including reasonable attorney fees, incurred by Plaintiff as a direct result of the trial continuance
that cannot reasonably be avoided.” (Dkt. 132.) The Court ordered that:
Plaintiff may move for an award of fees and costs unavoidably incurred as
a direct result of the trial continuance. Any such motion must be filed within seven
days after … the trial … is finally concluded…. Defendant may file a response
memorandum opposing the motion within seven days after service, and Plaintiff
may file a reply memorandum within seven days after service of the response
memorandum.
(Dkt. 140.)
II. LEGAL STANDARDS
Rule 6(c) of the Federal Rules of Civil Procedure provides that “any affidavit supporting

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a motion must be served with the motion.” F.R.C.P. 6(c)(2). Local Civil Rule 7.1(b)(2) provides
that “[t]he moving party must serve and file with the motion affidavits required or permitted by
Federal Rule of Civil Procedure 6(c), declarations submitted in accordance with 28 U.S.C. §
1746, copies of all photographs, documentary evidence and other supporting materials on which
the moving party intends to rely.” Reply affidavits are only proper when presented in response
to new information put forth in the opposing party’s response brief or when the affidavit material
references information obtained after the initial filing of the motion. Nelson-Ricks Cheese Co.,
Inc. v. Lakeview Cheese Co., LLC, 2018 WL 1460970 (D. Idaho Mar. 23, 2018).
The Court considered ISU’s motion to continue against Federal Rule of Procedure 16,
which governs pretrial conferences, scheduling, and management. Rule 16 requires good cause
to modify a scheduling order, with the judge’s consent. F.R.C.P. 16(b)(4). Additionally, if a
party or its attorney fails to comply with Rule 16, “the court must order the party, its attorney, or
both to pay the reasonable expenses--including attorney’s fees--incurred because of any
noncompliance with this rule, unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.” F.R.C.P. 16(f)(2).
Federal Rule of Civil Procedure 54 governs the award of attorneys’ fees. After
determining that a basis exists for a proper award of attorney fees, the Court must calculate a
reasonable fee award. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Generally, the Court
utilizes the “lodestar figure,” which multiplies the number of hours reasonably expended on the
litigation by a reasonable hourly rate. Id.; see also Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 977 (9th Cir. 2008). “Although in most cases, the lodestar figure is presumptively a
reasonable fee award, the district court may, if circumstances warrant, adjust the lodestar to
account for other factors which are not subsumed within it.” Id. (quoting Ferland v. Conrad

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Credit Corp., 244 F.3d 1145, 1147–48 (9th Cir. 2001)).
III. DISCUSSION
ISU’s Motion to Strike Plaintiff’s Reply in Support of Motion to Obtain Expenses (Dkt.
189) relates to Yu’s reply memorandum in support of his Motion to Obtain Expenses; therefore,
it will be taken up first.
1. ISU’s Motion to Strike Is Denied.
The Court’s Supplemental Order Re Defendant’s Motion to Continue Trial (Dkt. 140) set
forth the briefing deadlines associated with any motion by Yu to recover expenses associated
with the continuance. As relevant here, the Order provided that “Plaintiff may file a reply
memorandum within seven days after service of the response memorandum.”
Yu timely moved for expenses arising from the continuance on June 4, 2020 (Dkt. 183).
ISU timely filed its response memorandum on June 11, 2020 (Dkt. 184). Per the Court’s prior
Order, Yu’s reply memorandum was therefore due by June 18, 2020. But Yu filed his reply
memorandum on June 22, 2020 (Dkt. 188), eleven days after ISU had filed its response
memorandum and four days after it was due.
ISU argues that Yu’s reply was untimely and the supporting documentation
accompanying the reply memorandum was not submitted with the original motion (Dkt. 189).
The timeliness argument is straightforward. ISU’s alternative argument contends that by not
filing supporting documentation with the motion, Yu has deprived ISU of the opportunity to
respond. ISU relies upon Local Civil Rule 7.1(b)(2), which requires in part that the moving
party “must serve and file with the motion … copies of all photographs, documentary evidence
and other supporting materials on which the moving party intends to rely.”
Yu responds that the untimely filing was the result of his counsel’s health concerns

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related to the COVID-19 pandemic and that ISU suffered no prejudice as it received the reply
“1.5 business days and 3.5 calendar days” from when the reply was due. Yu contends that the
reply memorandum was completed on June 18, 2020, the day it was due, but that his counsel was
unable to get the attached declaration properly notarized until June 22, 2020 because of delays
connected with trying to comply with public health recommendations related to the pandemic.
Specifically, counsel learned on June 9, 2020 he had “possibly come into close contact with a
person who had tested positive for COVID-19” and that he immediately decided to selfquarantine because he is a vulnerable individual.
Yu also argues against striking the documentation attached to the reply memorandum,
which provides evidentiary documentation supporting his request for $586.00 in costs in his
motion for expenses. He notes that ISU did not object to the description of the costs and that
ISU’s only objection was that Yu had not provided receipts supporting the requested costs. Yu
contends that attaching the receipts to his reply memorandum simply “provided the documents
that [ISU] had requested” so there is no basis to strike them.
In reply, ISU argues that the untimely filing was not the result of a good faith mistake.
Indeed, ISU points out, Yu “acknowledges that he was aware of the date by which his reply was
due.” ISU contends that Yu “failed to attempt to mitigate the consequences of an untimely
filing” in that he did not notify ISU or the Court of the delay and he did not submit his affidavit
as a declaration instead. ISU concludes its argument on timeliness by arguing that
It defies the principles of justness and fairness to consider sanctions against
Defendant for circumstances beyond its lead counsel’s control while
simultaneously allowing Plaintiff to bolster his allegations of unavoidable fees and
costs incurred as a direct result of the continuance at his convenience rather than in
conformity with the timeline set out by this Court.
(Dkt. 196.) Finally, ISU disagrees that it “requested” the receipts attached to the reply

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memorandum, as Yu contends. Rather, ISU argues that it was Yu’s duty to supply such receipts
in the first instance and that the failure to do so is what justifies striking them.
Yu’s reply memorandum in support of his motion for expenses (Dkt. 188) will be treated
as timely, given the circumstances described by Yu’s counsel and the arguments Yu has raised.
Further, the Court reemphasizes here that the reason for any award of fees and costs in these
circumstances is an exercise of the Court’s discretion under the civil rules to equitably distribute
the financial burden caused by the continuance, consistent with what is permitted and even
required in some circumstances under Rule 16. Further, it deserves highlighting here that even
though the circumstances which led to the request for the continuance were unanticipated, it was
ISU that requested the continuance. The Court allowed the continuance which benefited ISU
and its counsel. In the dispute now at issue there also were circumstances beyond counsel’s
control, the only difference being that the shoe was on the other foot.
As to the evidence of receipts submitted with the reply memorandum and the
accompanying affidavit regarding $586.00 in costs, ISU is not surprised or prejudiced by the
submission of such evidence as part of the reply memorandum because ISU was on notice of that
particular request for costs as part of the original motion. Accordingly, ISU’s motion to strike
will be denied.
2. Yu’s Motion for Trial Continuance Expenses Is Granted in Part.
Yu seeks $31,016.00 in expenses he says arose from resetting trial from November 2018
to February 2019 (Dkt. 183-1). A primary reason for such expenses, according to Yu, was the
need to replace second chair trial counsel because the attorney who was in that role since July
2016 had scheduling issues that prevented her from participating in the trial once it was
continued to February 2019.

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Yu seeks recovery of legal fees for 19 hours for paralegal Crystal G. Anderson at $110
per hour (subtotal $2,090.00); 54 hours for (the replacement) second chair trial counsel Holly E.
Sutherland at $300 per hour (subtotal $16,200.00); and 40.2 hours for lead trial counsel Ronaldo
A. Coulter at $300 per hour (subtotal $12,060.00). He also seeks recovery of $666.00 in various
costs related to travel.2
The travel costs will be allowed, but in the lesser amount of $586.00. Yu has withdrawn
his request for an $80.00 expense dated November 21, 2018 because he acknowledges the
expense was unrelated to the continuance. (Dkt. 190 at 3 n.2.)
In opposing Yu’s motion, ISU argues that of the $31,016.00 Yu requests, only $4,399.00
should be awarded. ISU contends that no fees should be allowed for Ms. Sutherland because the
continuance did not directly cause her to become involved in the case and because her fee of
$300 per hour is not reasonable. As to paralegal Ms. Anderson, ISU contends that there was no
need for her to travel from Virginia to Idaho for a December 1, 2018 meeting and that a rate of
$110 per hour is not reasonable for Ms. Anderson’s remaining time entries as the work
performed was clerical in nature and did not result in the production of any legal work. In
addition, ISU proposes a rate of $55 per hour for Ms. Anderson’s allowed time entries. As to
Mr. Coulter, ISU does not object to his rate of $300 per hour for legal work done on this matter.
However, ISU contends that some of Mr. Coulter’s time entries should be assigned a lesser rate
of $55 per hour because they describe non-legal work that could have been done at such a rate by
a legal assistant. ISU also argues that Mr. Coulter’s fees related to the substitution of counsel are
not a direct result of the continuance and that some time entries should be reduced because they

2

The travel costs were embedded within Mr. Coulter’s time entries, but the Court has
drawn them out and listed them separately for clarity.

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intermix some work not related to the continuance. Finally, ISU objects to fees related to certain
time entries that it says are vague.
The fees sought for each timekeeper will be discussed separately.
A. Fees for Holly E. Sutherland.
ISU argues that Ms. Sutherland’s involvement in the case did not directly result from the
continuance. Yu says that Mr. Coulter’s original co-counsel, Ms. Emile Loza de Siles, had to
withdraw from representation in the case because her schedule and prior commitments made her
unavailable for the new trial date. ISU criticizes this as a post-hoc justification for Ms. Loza de
Siles’s withdrawal, noting that her availability was not raised in Yu’s memorandum opposing the
continuance and that the issue likewise did not come up in the parties’ informal discussions
about the possibility of a stipulated continuance prior to ISU filing its motion. ISU also notes
that Ms. Loza de Siles’s availability did not come up when counsel discussed a new trial setting
following the continuance.
Moreover, ISU points out when its motion to continue was taken up by the Court, there
was discussion as to whether another attorney could try the case for ISU in order to keep the
original trial setting, rather than continuing the case so that lead counsel could try it. However,
the Court concluded that would not be appropriate, because the “circumstances that justify a
continuance of the trial [for the benefit of ISU] do not justify the Court requiring Defendant to
choose a different attorney to act as lead counsel at trial.” (Dkt. 132.) ISU argues that Yu’s
motion implies the Court required Yu to choose different counsel despite refusing to require ISU
to do so. ISU disputes any such connection, and it contends that Ms. Loza de Siles’s withdrawal
from the case and Ms. Sutherland’s joining it were not directly related to the continuance.
Finally, and at the core of its argument, ISU contends that Yu could have avoided at least

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some of the fees he now requests if he had disclosed that a continuance would necessitate
replacing part of his trial team.
Separately, ISU argues that the requested rate of $300 per hour for Ms. Sutherland is not
reasonable. ISU points to the fact that Ms. Sutherland’s proposed rate is the same as proposed
for Mr. Coulter, despite Mr. Coulter having substantially more experience both as an attorney
and in the practice of trying discrimination cases. ISU notes that Ms. Sutherland has practiced
law for five years, with only a short period of that time working in discrimination law. Mr.
Coulter, in contrast, has practiced law for 31 years, with over 25 years focused on civil rights
litigation.
ISU also challenges some of Ms. Sutherland’s individual time entries, arguing that the
work described in those time entries would have been done even if there were no continuance
and thus such work was not directly related to the continuance and is not subject to recovery. In
addition, ISU contends that much of Ms. Sutherland’s work did not require the special skill of an
attorney as the hours billed were generally for summarization and review rather than analysis.
ISU further notes that Ms. Sutherland’s need for “alleged trial preparation” was minimal as she
did not actually prosecute the case at trial; although she conducted a short re-cross-examination
of one witness, most of her role at trial was to work with a paralegal to call up documents
electronically.
The Court is persuaded by ISU’s arguments, in part, but only as to the hourly billing rate
of Ms. Sutherland and as to some percentage of the work she performed. The Court is not
persuaded, however, that Mr. Coulter should have said anything about the effect of a continuance
upon the availability of his co-counsel for trial. Such a disclosure would have revealed that his
client was potentially at a disadvantage if the trial date were to be moved. Hence, any such

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disclosure (even if the issue of the availability of co-counsel to participate in a later trial setting
was still up in the air) could have affected negatively not just trial preparation but also any actual
or potential settlement discussions. Although Mr. Coulter could have raised the subject with the
Court, he was under no duty to do so. Indeed, his duty to his client may well have been not to do
so. As to whether Ms. Sutherland needed more time to prepare for trial than would have been
true if Ms. Loza de Siles had continued as counsel, that also is no fault of Yu but rather is a
product of the trial continuance requested by ISU. In short, the Court will not deny fees for Ms.
Sutherland’s time on the basis that all such time could have been reasonably avoided.
The Court does find, however, that the hourly rate for Ms. Sutherland should be reduced.
The Court is familiar with the range of attorney hourly rates in Idaho over time from the
undersigned’s own 20 years in the practice of law and 18 years of service as a state and federal
trial judge. The undersigned has prepared and reviewed many requests for fee awards in that
time, to include declarations of attorneys familiar with hourly billing rates in Idaho. The Court
concludes that a reasonable hourly rate for Ms. Sutherland during the applicable time frame is
$225 per hour. This finding is based on the length of time Ms. Sutherland has been practicing
law, the nature of the work she has done as a lawyer, and her role within the case.
Most of the individual time entries recorded by Ms. Sutherland reasonably related to the
continuance. Much of her total time was related to reading and reviewing case filings and
discovery, which would be necessary for any attorney new to the case who would be stepping
into a trial counsel role. However, other work she performed was not centrally related to the
continuance or otherwise does not justify an award of fees. For instance, Ms. Sutherland billed
0.40 hours on November 16, 2018 for “Trial team WebEx meeting with Ron and Crystal
regarding trial preparation and progress in familiarizing myself with case” and 0.50 hours on

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December 7, 2018 for “Attended Weekly Trial Team Meeting.” (Dkt. 183-2 at 9.) She also
billed 6.0 hours on December 1, 2018 for “Trial Team Meeting necessary as a result of
continuance,” but neither the timesheet nor Yu’s briefing explains how the continuance
necessitated this meeting. It is not sufficiently clear from Yu’s filings that these meetings were
directly related to the continuance.
Additionally, Ms. Sutherland spent several hours reviewing various ISU filings related to
trial; specifically on December 29, 2018, she billed 0.90 hours for reviewing the briefing related
to a Motion in Limine and on December 30, 2018, she billed 1.40 hours for reviewing ISU’s trial
brief, proposed jury instructions, proposed special verdict form, proposed voir dire, and exhibit
list.
These filings all pre-date the order granting the continuance. However, Yu has not
established that Ms. Sutherland’s review of them was necessitated by the continuance. That is,
nothing in the record before the Court shows – or even suggests – that withdrawing counsel Ms.
Loza de Siles had also undertaken to review such filings, which would in turn imply that Ms.
Sutherland’s additional review of them would not have been necessary but for the trial
continuance (and therefore subject to the Court’s fee-shifting order). Notably, the ISU Motion in
Limine referenced in Ms. Sutherland’s time entry was the subject of argument at a hearing on
February 5, 2019 and resolved in a written decision February 15, 2019. Further, the parties’
proposed jury instructions, voir dire, and special verdict forms were left behind when the Court
ruled on February 21, 2019 that Yu was not entitled to a trial by jury. To be clear, that Order did
not mean that time spent on reviewing jury-related filings was unreasonable; rather, the fact that
the Order was issued several weeks after Ms. Sutherland’s review of the filings shows that her
review was related to pending, rather than resolved, issues in the case. Thus, not all of Ms.

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Sutherland’s time entries are the direct result of the continuance.
In considering those constraints and having carefully reviewed the information contained
in the time entries in their entirety, the Court concludes that 20% is a reasonable measure of the
percentage of Ms. Sutherland’s work that was not necessitated by or related to the continuance of
the trial setting. In other words, one of every five hours of her time would have been done
regardless of whether the trial date was continued. Therefore, in the exercise of its discretion,
the Court will deduct 20% of the total hours for which fees are sought, which leaves 43.2 hours
(of the original 54 hours) as directly related to the continuance.
Applying the $225 hourly rate for Ms. Sutherland’s time to 43.2 hours, the Court will
award $ 9,720.00 for Ms. Sutherland’s work.
B. Fees for Crystal G. Anderson.
ISU first challenges any award of fees for Ms. Anderson’s travel from Virginia to Idaho
for an in-person meeting, when such a meeting could have been held remotely. ISU also
contends that the six-hour meeting was not directly related to the continuance, given that it
occurred some six weeks after the order granting the continuance and eighteen days after a new
trial date had been set. Additionally, ISU contends that Ms. Anderson’s hourly rate should be
reduced by half because her time entries describe work that is clerical in nature that could have
been performed by a legal assistant at a substantially lower cost.
The Court finds Ms. Anderson’s rate of $110 per hour is reasonable under the facts of
this case. Lead counsel Mr. Coulter runs a small practice and does not employ a full-time staff
of paralegals or other legal assistants. The Court will not penalize Yu for being represented by a
“lean” law firm that brings on additional staff only when a matter justifies doing so. In that

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context, it was not unreasonable for Mr. Coulter to employ Ms. Anderson for a myriad of
responsibilities.
However, the Court agrees that there has been an insufficient showing to justify an award
of costs for the time required to travel from Virginia to Idaho for an in-person trial team meeting
on December 1, 2018. Hence, the 10.90 hour time entry for travel is denied in its entirety.
Similarly, Yu has not shown how the participation of Ms. Anderson – who had been working on
the case both before and after the continuance – in a six-hour meeting was directly related to the
continuance.3 No recovery will be allowed for that time. The remaining time entries, totaling
2.1 hours, will be allowed in full as reasonable.
Thus, the Court will award Yu $110 per hour for 2.1 hours of Ms. Anderson’s time, for a
total of $231.00.
C. Fees for Ronaldo A. Coulter.
ISU does not object to Mr. Coulter’s billing rate of $300 per hour; however, ISU does
argue that some of the billed hours were more clerical than legal in nature and therefore the rate
should be reduced for certain time entries. ISU also challenges other time entries as not directly
related to the continuance.
The Court finds, based on its own knowledge of the Idaho legal market and based upon
Mr. Coulter’s experience and his prior appearances before this Court in other matters, that a rate
of $300 per hour for his legal work is reasonable.
As to individual time entries, Mr. Coulter’s fees related to the substitution of counsel will
be allowed. As discussed supra, the record makes clear that Ms. Loza de Siles’s withdrawal and

3

Ms. Anderson’s time entry for this meeting is denied in its entirety, while Ms.
Sutherland’s corresponding entry was discounted. The difference is that Ms. Sutherland was
new to the case and Ms. Anderson was not.

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Ms. Sutherland’s becoming more fully involved in the case were directly caused by the
continuance.
ISU specifically objects to two of Mr. Coulter’s entries as not related to the continuance.
On October 25, 2018, Mr. Coulter recorded a time entry saying that he “[r]esponded to
correspondence sent by Jun Yu at the 0620 hours this date related to the two trial dates the court
had suggested as a result of the continuance.” On November 9, 2018, a time entry states that he
“[s]ent correspondence to the client this date that contained the Amended Order Setting Trial
(Dkt 138) and addressed the issues regarding motions in limine, additional motions and the
receipt of payment for reimbursement.”
Regarding the October 25, 2018 time entry, the work described is reasonably related to
the continuance and it is understandable that a client who likely was surprised by the fact of the
continuance would want a full explanation from Mr. Coulter, which reasonably could take the
1.6 hours billed. It is equally reasonable that correspondence describing the pros and cons of two
proposed trial dates – given all of the moving parts involved in trial preparation and the conduct
of a trial – could require the amount of time recorded by Mr. Coulter. ISU’s objections to those
time entries are not persuasive.
Regarding the November 9, 2018 time entry, not all of the work described is sufficiently
connected to the continuance to justify awarding the full amount of the fees requested for that
work. Accordingly, this time entry will be reduced by half.
Next, ISU argues that Yu should not recover fees related to Mr. Coulter’s work on
evaluating a different, potential, date for a rescheduled trial because such fees could have been
reasonably avoided by agreeing to the originally requested continuance. The Court disagrees
that these time entries, totaling 1.6 hours on October 26, 2018, were not directly related to the

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continuance. ISU contends that the time entries related to strategic considerations and that may
well be accurate. But, in context, it was reasonable for Yu’s counsel to consider the pros and
cons of the alternative trial dates and the fact that such consideration came about at all stems
from ISU’s request for the continuance.
ISU also challenges any award of fees for the work involved in Mr. Coulter’s
correspondence with Robert Eikenburg, who is neither a party nor a witness in the matter.4 Yu
will not be allowed to recover attorney fees for these time entries, dated October 25, 2018,
October 26, 2018, and November 5, 2018 and totaling 3.3 hours. Although the subject of such
time entries relates to the continuance, Yu has not established why Mr. Coulter needed to
correspond with Mr. Eikenburg, whose role in this matter is not clear.5
Next, ISU urges denial of certain of Mr. Coulter’s time entries on vagueness grounds,
arguing that such entries do not specifically reference the continuance or otherwise relate to the
continuance. These 0.5 total hours in time entries are not supported by details of the link to the
continuance; however, Yu’s motion is supported by an affidavit of counsel in which Mr. Coulter
represents that all of the submitted time entries were tracked in a separate case file relating only
to tasks related to the continuance and that Mr. Coulter personally reviewed every transaction
that was entered into the file. Coulter Aff. ¶¶ 12, 13 (Dkt. 183-2). The Court is satisfied with
that connection of and justification for these entries.
Finally, and as mentioned previously, ISU argues that Mr. Coulter’s time entries that

4

The Court notes that Yu’s wife is named Jocelyn Eikenburg. The Court surmises, but
has no certain knowledge, that Robert Eikenburg is related to Jocelyn Eikenburg.
5

Separately, the Court is not denying Mr. Coulter’s time entries for November 14, 2018
related to Mr. Eikenburg’s apparent assistance with the coordination of changes to witnesses’
travel schedules stemming from the continuance.

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describe only clerical rather than legal work should be reduced. In the modern practice of law,
however, many lawyers prepare their own correspondence and pleadings and do so in a more
economical manner than if such written documents went from the lawyer to clerical staff and
back again. This is especially true in a small law practice, where such efficiencies are important
for the financial success of the practice. There is no reason to apply a different hourly rate to
certain of Mr. Coulter’s time entries on such an outdated distinction. Further, the entries at issue
primarily involve corresponding with his client, with his witnesses, or with the Court. The Court
is satisfied that it was reasonable for Mr. Coulter personally to handle such correspondence.
Yu seeks $12,726.00 for Mr. Coulter’s work, but that total includes more in costs than the
Court will allow. As previously described, Yu has withdrawn a request for $80.00 in costs and
the Court will award $586.00 in costs. After removing such costs, a total of $12,060.00 remains.
At $300 per hour, this amounts to 40.2 hours. The Court has agreed in part with ISU’s
objections to some of the fees, which has resulted in the Court disallowing 3.9 hours of Mr.
Coulter’s requested time entries, leaving a balance of 36.3 hours. Thus, the Court will award Yu
$300 per hour for 36.3 hours of Mr. Coulter’s time, for a subtotal of $10,890.00. This
calculation is consistent with the lodestar method of deciding attorney fee awards.
Adding up the subtotals for each category of costs, the Court will award Yu $586.00 in
costs, $9,720.00 for Ms. Sutherland’s time, $231.00 for Ms. Anderson’s time, and $10,890.00 for
Mr. Coulter’s time. This sums to a total of $21,427.00 to be awarded to Yu, against ISU, in the
exercise of the Court’s discretion as a result of ISU’s request to alter the scheduling order to
continue the trial date, a month before the previously set trial date.

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IV. ORDER
Based on the foregoing, IT IS HEREBY ORDERED as follows:
1. Defendant’s Motion to Strike Plaintiff’s Reply in Support of Motion to Obtain Expenses
(Dkt. 189) is DENIED.
2. Plaintiff’s Motion to Obtain Expenses Incurred as a Result of the Continuance (Dkt. 183)
is GRANTED IN PART AND DENIED IN PART. Plaintiff is awarded $21,427.00, as
described herein. A Judgment shall be entered separately.

DATED: August 14, 2020

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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