Crawford v. Smith's Food and Drug Store Inc

Filing 197

ORDER Granting 148 Motion for Attorney Fees. Plaintiff Milton Crawford is ordered to pay Defendant Kroger the sum total of $3,578.75. Signed by Magistrate Judge George Foley, Jr on 3/31/2014. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12
13
14

MILTON O. CRAWFORD,

)
)
Plaintiff,
)
)
vs.
)
)
SMITH’S FOOD AND DRUG CENTERS, )
INC., THE KROGER COMPANY,
)
SMITH’S FOOD AND DRUG, et al.,
)
)
)
Defendant.
)
____________________________________)

Case No. 2:12-cv-00122-GMN-GWF
ORDER

Defendant’s Motion for Attorney’s Fees
Pursuant to Court’s (#142) Order (#148)

15

This matter comes before the Court on Defendant Kroger Company’s (“Kroger”) Motion for

16

Attorney’s Fee (#148), filed on October 4, 2013. Plaintiff filed his Response (#156) to Defendants’

17

Motion on October 17, 2013.

18
19

BACKGROUND
Defendant Kroger’s Motion for Costs and Fees (#127) sought sanctions against Plaintiff for

20

multiple redundant filings. On September 23, 2013, the Court entered Order (#142) granting

21

Defendant Kroger’s Motion (#127). Specifically, the Court ordered Plaintiff to reimburse

22

Defendant Kroger for costs and fees unnecessarily expended to respond to Plaintiff’s Motion to

23

Reconsider (#122), Plaintiff’s Motion for Default Judgment (#124), and Amended Motion for

24

Default Judgment (#128). Defendant Kroger now brings this Motion for Attorney’s Fees pursuant

25

to Local Rules 54-1 and 54-16. (See #148).

26
27
28

DISCUSSION
The Supreme Court has held that reasonable attorney fees must “be calculated according to
the prevailing market rates in the relevant community,” considering the fees charged by “lawyers of

1

reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.

2

11, 104 S.Ct. 1541 (1984). Courts typically use a two-step process when determining fee awards.

3

Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must calculate the

4

lodestar amount “by taking the number of hours reasonably expended on the litigation and

5

multiplying it by a reasonable hourly rate.” Id. Furthermore, other factors should be taken into

6

consideration such as special skill, experience of counsel, and the results obtained. Morales v. City

7

of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award of fees should

8

submit evidence supporting the hours worked and rates claimed . . . [w]here the documentation of

9

hours is inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart,

10

461 U.S. 424, 433 (1983). Second, the Court “may adjust the lodestar, [only on rare and

11

exceptional occasions], upward or downward using a multiplier based on factors not subsumed in

12

the initial calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041,

13

1045 (9th Cir. 2000).

14

Defendant Kroger requests reimbursement of attorneys’ fees at an hourly rate of $325.00 for

15

lead counsel Steven C. Bednar, Esq., $250.00 for lead counsel James E. Ji, Esq., and $350.00 for

16

local counsel Lyssa S. Anderson, Esq., all of whom are highly experienced in employment law and

17

general litigation with years of practice ranging from several years to decades. Defendants are also

18

requesting reimbursement at an hourly rate of $175.00 for local paralegal Wendy L. Applegate.

19

The Court finds that Defendant has offered sufficient evidence that an hourly fee ranging between

20

$250-$350 based on the associate’s level of experience is reasonable for experienced associates in

21

the Las Vegas legal market.

22

Defendant Kroger seeks a total of $4,093.75 in fees associated with its time responding to

23

Plaintiff’s Motion to Reconsider (#122), Plaintiff’s Motion for Default Judgment (#124), and

24

Amended Motion for Default Judgment (#128). Defendant Kroger provided tables itemizing the

25

billings for both the lead and local counsel. A calculation of the total hours indicate the time

26

required by counsel to respond to the three motions at issue was 15.3 hours; roughly 7.25 hours of

27

which were expended to respond to Plaintiff’s Motion to Reconsider and approximately 8.05 hours

28

of which were expended to respond to Plaintiff’s Motion for Default Judgment and Amended
2

1

Motion for Default Judgment. Of the 15.3 hours reported, 12 hours reflected the lead counsels’ time

2

and 3.3 hours reflected the local counsel’s time in responding to the aforementioned motions.

3

Defendant Kroger asserts that the questions involved in the three motions at issue were not

4

unusually novel or difficult, however the legal questions did require some legal research.

5

In light of Plaintiff’s pursuit of this action in forma pauperis, the Court is concerned with

6

lead counsels’ billing in quarter hour increments. Some courts have found that billing in quarter

7

hour increments is less reliable than tenth-hour billing and risks bill inflation. See Republican Party

8

of Minn. v. White, 456 F.3d 912, 920 (8th Cir. 2006); see also Edwards v. National Business

9

Factors, Inc., 897 F. Supp 458, 462 (D. Nev. 1995). Though the Court has no way of verifying the

10

time required to conduct phone calls concerning the case, certain entries can be judged by an

11

objective standard and a few entries appear excessive. For example, an entry on June 4, 2013

12

reflects that Mr. Bednar spent .5 hours reading Plaintiff’s Motion to Reconsider and outlining a

13

response. The Court finds that thirty minutes was not reasonably needed and subtracted .1 hour in

14

accordance with its finding. Furthermore, an entry on June 27, 2013 reflects that Mr. Ji spent 2.25

15

hours reading and analyzing Plaintiff’s Amended Motion for Default Judgment and drafting

16

Kroger’s Memorandum in support to same and in further support of its request for costs and fees.

17

Court Order #142, however, specifically ordered Plaintiff to reimburse Defendant Kroger for costs

18

and fees unnecessarily expended to respond to Plaintiff’s Motion to Reconsider (#122), Plaintiff’s

19

Motion for Default Judgment (#124), and Amended Motion for Default Judgment (#128).

20

Therefore, the Court deducted .75 hours for work performed to reimburse costs and fees. After

21

review of the pleadings and the billing tables submitted in Defendants’ Motion (#148), the Court

22

finds 9.5 hours to be a more appropriate reflection of the hours expended by lead counsel, with a

23

total lead counsel cost of $2,616.25. Combining lead and local counsels’ hours, the Court finds

24

12.8 hours at a cost of $3,578.75 is a better representation of defense counsels’ time and fees.

25
26

Defendant Kroger indicates it did not incur any substantial costs in connection with the three
motions as issue, thus, Defendant has not submitted a Bill of Costs pursuant to LR 54-1.

27

The Court therefore awards Defendant Kroger total fees and costs in the amount of

28

$3,578.75. The relevant factors are subsumed in this calculation of the reasonable attorneys' fees,
3

1

and there are no other exceptional circumstances which warrant enhancement or reduction of the

2

fees. Accordingly,

3
4
5
6
7

IT IS HEREBY ORDERED that Plaintiff Milton Crawford is ordered to pay Defendant
Kroger the sum total of $3,578.75.
IT IS FURTHER ORDERED that Plaintiff shall have until May 15, 2014 to pay the full
amount of the fees owed.
DATED this 31st day of March, 2014.

8
9
10

______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4