Wilson v. Decibels of Oregon, Inc. et al

Filing 136

Opinion and Order regarding Motion for Attorney Fees 116 . For the reasons set forth in this Opinion and Order, Plaintiffs Motion for Attorney Fees, 116 is GRANTED in part and DENIED in part. Plaintiff is awarded attorney fees in the amount of $108,062.40 and costs and expenses in the amount of $4,153.72. Please access entire text by document number hyperlink. Signed on 08/14/2018 by Magistrate Judge Mark D. Clarke. (rsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

MATTHEW WILSON,
Plaintiff,

Civ. No. 1:16-cv-00855-CL
OPINION & ORDER

v.
DECIBELS OF OREGON, INC.;
DENNIS SNYDER,
Defendants.

CLARKE, Magistrate Judge.
Plaintiff Matthew Wilson filed this action on May 16, 2016, alleging violation of the
federal Fair Labor Standards Act ("FLSA"), as well as Oregon state law wage and hour claims.
ECF No. 1. Litigation proceeded for nearly two years and a number of claims were eliminated.
After dispositive motions, but before trial, the parties engaged in a judicial settlement conference
at which they were able to successfully reach an agreement concerning the remaining claims.
ECF Nos. 111, 112, 113. Pursuant to that negotiated settlement, a judgment was entered on
April 24, 2018, directing Defendants to pay $20,500 to Wilson, "plus reasonable attorney fees
and costs to be determined by the Court pursuant to FRCP 54(d)." ECF No. 115.
On May 8, 2018, the Wilson filed a Motion for Attorney Fees, ECF No. 116, in which he
sought an award of fees and costs in the amount of $138,636.22, later increased to $141,082.50.
Defendants do not contest that Wilson is the prevailing party and therefore entitled to fees and
costs, but dispute the reasonableness of the requested award. The Court heard oral argument on

Page I -OPINION & ORDER

August 6, 2018, and all parties have consented to the jurisdiction by a magistrate judge. ECF
Nos. 107, 135. The motion is GRANTED in part and DENIED in part.

LEGAL STANDARDS
The prevailing party is entitled to recover his fees, expenses, and costs pursuant to the
fee-shifting provisions of 29 U.S.C. § 216(b) and ORS 652.200, ORS 653.055(4), and ORS
659A.885(1). See also Fed. R. Civ. P. 54(d) (prevailing party entitled to costs and attorney fees
if provided by statute, rule, or order); LR 54-1; 54-3 (providing same).
The Ninth Circuit has adopted the "lodestar" method for calculating attorney fees.
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). That calculation multiplies
a reasonable hourly rate by the number of hours reasonably expended in the litigation. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983); Pennsylvania v. Del. Valley Citizens' Council for Clean
Air, 478 U.S. 546, 564 (1986). The court must then decide whether to enhance or reduce the
lodestar figure by evaluating a number of factors. Moreno v. City of Sacremento, 534 F.3d 1106,
1111 (9th Cir. 2008).

The court may adjust the lodestar to account for factors such as: (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 Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The court

Page 2 -OPINION & ORDER

need only consider the factors not already subsumed in the initial lodestar calculation. Fischer v.
SJB-P.D., Inc., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000).

There is a strong presumption that the lodestar method produces a reasonable figure and
should only be enhanced or reduced in exceptional circumstances. Del. Valley Citizens, 478 U.S.
at 565; Fischer, 214 F.3d at 1119 n.4. Courts have discretion, however, to adjust the lodestar
figure either: (1) downward if the plaintiff has achieved only partial or limited success or if the
fee is otherwise unreasonable, Hensley, 461 U.S. at 435-36, or (2) upward in "rare" and
"exceptional" cases. Del. Valley Citizens, 478 U.S. at 565.
DISCUSSION

Wilson seeks an award of $141,082.50 in attorney fees and $4,153.72 in costs.
Defendants challenge both the rates and hours claimed by Wilson and argue for $21,905.25 in
attorney fees and $400 in costs. 1
I.

Attorney Fees

The calculation of reasonable attorney fees begins with the lodestar calculation. The
Court must therefore determine the reasonable hourly rate and multiply that rate by the number
of hours reasonably expended in the case.
A. Reasonable Hourly Rate

A reasonable hourly rate is determined by looking at "prevailing market rates in the
relevant community," as well as the skill, experience, and reputation of the lawyer. Blum v.
Stenson, 465 U.S. 886, 895 (1984); United States v. $28,000 in US. Currency, 802 F.3d 1100,

1

In his Reply, ECF No. 130, Wilson argues for the first time that his requested attorney fees and hours should be
deemed reasonable based on the rates and hours claimed by Defendants' counsel in an unrelated case. Lang v.
Oregon Shakespeare Festival Association et al., Case No. 1: 12-cv-01844-CL. This Court never reached the merits
of the Lang defendants' attorney fee request because the motion was denied in its entirety on other grounds. See,
1:12-cv-01844-CL, ECF Nos. 159, 165. The Court passed no judgment on the reasonableness of those fees and so
the Lang case is of no value whatsoever in resolving the present motion.

Page 3 -OPINION & ORDER

1105 (9th Cir. 2015). The party requesting the fees has the burden of producing "satisfactory
evidence," in addition to the affidavits of counsel, that the requested rates are in step with those
"prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation."

Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005) (internal

quotation marks and citation omitted). The best evidence of the prevailing rates in Oregon is the
Oregon State Bar Economic Survey, most recently issued in 2017.

LR 54-3; Roberts v.

Interstate Distrib. Co., 242 F. Supp.2d 850, 857 (D. Or. 2002); Mumford v. Electric Inst., Inc.,
Case No. 3:15-cv-00375-AC, 2016 WL 8711693, at *2 (D. Or. April 29, 2016).
In this case, Wilson had the assistance of three attorneys: Quinn Kuranz, Judy Snyder,
and Holly Lloyd, as well as a paralegal, Kathryn Arnett.
1. Quinn Kuranz

Quinn Kuranz was Wilson's primary attorney in this case. Wilson asserts that $300 per
hour is a reasonable rate for Kuranz's services, while Defendants argue for a reduced rate of
$250.
Kuranz has been licensed to practice law in Oregon since 2011. Kuranz Deel. ECF No.
117. The Economic Survey shows that an average Oregon attorney with Kuranz's level of
experience (between 4 and 6 years) bills $231 per hour, with $257 representing the 75th
percentile. Kuranz Deel. Ex. 14, at 38, ECF No. 117-14.
Kuranz is based in Portland and so urges the Court to apply the rates for Portland
attorneys: an average rate of $249 per hour, with $300 as the 75th percentile. Id.

Defendants

argue that, as this case was filed and litigated in southern Oregon, the prevailing rates for
attorneys in that region should apply. Defendants are correct that, under these circumstances,
courts generally look to the rates customarily charged in southern Oregon. See, e.g., Nance v.

Page 4 -OPINION & ORDER

May Trucking Co., No. 3:12-cv-01655-HZ, 2014 WL 6633111, at *3 (D. Or. Nov. 21, 2014)
("Generally the relevant community is the forum in which the district court sits." (internal
quotation marks and citation omitted)).

The Court finds the declarations attesting to the general

lack of attorneys experienced with wage and hour claims in southern Oregon to be persuasive,
however. Breed Deel., ECF No. 120; Dale Deel., ECF No. 121; Leiman Deel., ECF No. 122.
Furthermore, the Economic Survey has no data for attorneys with Kuranz's level of experience
in southern Oregon.

Kuranz Deel. Ex. 14, at 38.

The Dale Declaration suggests that the

statewide averages might supply a reasonable alternative, but this Court has previously looked to
the Portland rates as a starting point under similar circumstances. Arthur v. Murphy Co .. Civ.
No. 10-3142-CL, 2012 WL 3010996, at *3 (D. Or. July 23, 2012). The Court will follow that
practice in this case, although for the sake of comparison it will note the statewide rates, as well
as the southern Oregon rates when they are available.
The Court concludes that Kuranz's requested rate of $300 is reasonable. It represents the
75th percentile for attorneys with his level of experience in Portland and it does not grossly
exceed the average statewide rates for the same category.
2. Judy Snyder and Holly Lloyd
Wilson retained Portland-based attorney Judy Snyder to assist Kuranz with the trial phase
of the case. Kuranz Deel. Synder has been practicing law in Oregon since 1973. Snyder Deel.
ECF No. 118. Wilson seeks attorney fees for Snyder at her customary rate of $450 per hour. Id.
The average rate for attorneys with more than 30 years of experience is $332 statewide, $413 in
Portland, and $229 in southern Oregon. Kuranz Deel. Ex. 14, at 40. In the Portland area, $495
per hour represents the 75th percentile. Id. In light of Snyder's considerable experience and
reputation, the Court concludes that a rate of $450 is reasonable.

Page 5 -OPINION & ORDER

Holly Lloyd is an associate in Snyder's practice and was, like Snyder, retained to assist
Kuranz with the trial phase of litigation. Syder Deel.; Kuranz Deel. Lloyd has been practicing
law since 1994. Snyder Deel. Lloyd's requested rate is $375 per hour, which is the rate she
customarily charges her own clients. Snyder Deel. The average rate for attorneys with Lloyd's
level of experience is $307 statewide, $394 in Portland, and $248 in southern Oregon. Kuranz
Deel. Ex. 14, at 39. The 75th percentile is $350 statewide, $475 in Portland, and $275 in
southern Oregon. Id Based on these figures, the Court concludes that $375 is a reasonable rate
for an attorney with Lloyd's level of experience.
3. Kathryn Arnett
Wilson also seeks paralegal fees for the work performed by Kathryn Arnett, at a rate of
$125 per hour. Defendants assert that Arnett is not a paralegal and, to the extent Wilson may
recover fees for her work, Arnett's rate should be $20 per hour.
The Oregon State Bar Economic Survey does not include information about hourly rates
charged by paralegals in Oregon.

In assessing claims for paralegal fees, courts within this

District have noted that "a reasonable hourly rate for a paralegal should not exceed that of a first
year associate." Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F. Supp.2d 1228, 1248
(D. Or. 2013). That determination is not the end of the inquiry, however, as "the attorney hourly
rate is used as a ceiling and is not by itself determinative of a reasonable hourly rate." Id at
1249. Courts look closely at the educational and occupational background of the paralegal in
question when crafting a reasonable rate. Id; see also Muller v. County Mut. Ins. Co., No. 3: 14cv-01345-MO, 2017 WL 6209701, at *9 (D. Or. Dec. 8, 2017) ("I do not find reasonable the
requested $150 hourly rate, because it is unclear from the record whether Ms. Calcagno has a
paralegal certification, or how long she has been a paralegal rather than a legal assistant.").

Page 6 -OPINION & ORDER

In Precision Seed Cleaners, the court declined to award a paralegal fee rate of $170,
finding it unreasonably high. 976 F. Supp.2d at 1249. Instead, the court awarded a rate of $125
to a paralegal with a certification and ten years of experience as a paralegal and a rate of $115 to
a paralegal with a degree in paralegal studies and an unknown number of years of experience.

Id. at 1248-49. In examining the claims of the other paralegals, the court noted that none of them
had any education or experience as a paralegal, although some had bachelor's degrees or
experience working as legal assistants. Id. at 1249. Under those circumstances, the court found
a rate of $50 per hour to be reasonable. Id.
In this case, Arnett has a bachelor's degree in American Studies and a background in
legislative policy, including work with an environmental lobbying group and in the offices of a
California state senator. Arnett Deel. ECF No. 119. It does not appear from this record that
Arnett has a degree or certification qualifying her as a paralegal or any experience working as a
paralegal prior to her employment with Kuranz. It is unclear how long Arnett has been Kuranz's
legal assistant, although her earliest billed hours date to January 2018 and so the Court infers that
she has been employed in that position for at least six months.

Arnett Deel. Ex. 1, at 2.

Accordingly, the Court concludes that the requested rate of $125 per hour, which courts within
this District have awarded to paralegals with significant education and experience in their field,
is not reasonable.

By the same token, however, Defendants' suggestion of $20 per hour is

unreasonably low for an employee of Arnett's education and experience and for the nature of the
work she performed. The Court concludes that a paralegal rate of $90 per hour is reasonable.
B. Reasonable Number of Hours

The Court is responsible for determining the reasonableness of a fee petition. See Gates
v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The party seeking the fee award bears the

Page 7 -OPINION & ORDER

burden of demonstrating the number of hours spent was reasonably necessary to the litigation
and that counsel made "a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434. This burden can be satisfied by
submitting documentary evidence supporting the hours worked and fees claimed. Id. at 433;
$28,000 in US. Currency, 802 F.3d at 1105. Fee petitions that include inadequate detail or that

fail to separate time for individual tasks may be totally or partially denied, or apportioned
accordingly. See Fischer, 214 F.3d at 1121 (noting district court has authority to reduce or deny
fee requests that are "poorly documented."). Reasonable time spent in preparing a fee petition is
generally recoverable. Guerrero v. Cummings, 70 F.3d 1111, 1112 (9th Cir. 1995).
In this case, Wilson is claiming 319.30 hours for Kuranz, 2 11.40 hours for Snyder, 7.90
hours for Lloyd, and 166.40 paralegal hours for Arnett.
1. Clerical and Paralegal Tasks

Defendants object that many of the hours claimed by Wilson were spent on clerical tasks
and are not independently recoverable.

"Costs associated with clerical tasks are typically

considered overhead expenses in an attorney's hourly billing rate, and are not properly
reimbursable." Lemus v. Timberland Apartments, LLC, 876 F. Supp.2d 1169, 1179 (D. Or.
2012); see also Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) (reducing fees for
clerical tasks such as filing and organization). It is well settled that the court may reduce an
attorney's hours for time spent performing clerical work. See Missouri v. Jenkins, 491 U.S. 274,
288 n.10 (1989) (noting the dollar value of non-legal work is "not enhanced" because it was

2

Kuranz's gross hours, not including time spent on the Reply or in arguing this motion, was 434.40 hours. Kuranz
Deel. Ex. 1. Kuranz conceded 72.10 hours in filing this fee petition. Kuranz Deel. Ex. 2. In his Reply, Kuranz
conceded a further 4.10 hours. Reply Mem. Kuranz claims 38.9 hours spent preparing this motion. Kuranz Deel.
Ex. 1; O'Connor Deel. Ex. A, at 17. The Court will address the time spent preparing the fee petition separately and
so does not include those hours in the baseline lodestar analysis for the underlying case. The total also includes
14.00 hours for Kuranz's travel time, billed at half his normal rate.

Page 8 -OPINION & ORDER

performed by a lawyer); Sterling v. Savings Bank v. Sequoia Crossing LLC, Civ. No. 09-555-AC,
2010 WL 3210855, at *7 (D. Or. Aug. 11, 2010) ("Tasks considered clerical include, but are not
limited to, filing motions with the court, filling out and printing documents, preparing affidavits
and drafting certificates of service, organizing files, calendaring dates, rescheduling depositions,
and sending documents.").
a. Kuranz

With respect to the hours claimed by Kuranz, Defendants challenge 5.40 hours as spent
performing non-billable administrative or clerical tasks. O'Connor Deel. Ex. A, at 10-11. ECF
No. 126-1. In his Reply, Wilson concedes that most of the challenged hours are non-billable.
Reply Mem. 5. ECF No. 130. Wilson does not concede two particular entries:
On February 1, 2017, Kuranz billed 0.50 hours for "TIC [telephone call] w/Client;
discussed deposition order; review case file; organize documents; prepare for depositions."
Kuranz Deel. Ex. 1, at 6. For the purposes of this entry, which contains five distinct tasks, only
one of which is clearly clerical in nature, the Court will assume that Kuranz devoted equal time
to each task. Kuranz's total hours will therefore be reduced by 0.10.
The second challenged entry is for 5.10 hours on February 21, 2017. That entry reads
"Prepare for Depositions; Review Discovery and pull documents for depositions; Final
Preparation; Focus on Wage Claims." Kuranz Deel. Ex. 1, at 8. While Wilson defends this entry
as identifying documents for depositions, Defendants assert that this is impermissible blockbilling and that the claimed 5.10 hours should be reduced by 1.00 hour for time spent pulling and
copying documents, which they assert is a clerical task.
"The courts of the District of Oregon have for many years acknowledged the problem of
'block billing' attorney time expenditures for fee petition purposes." Ayala v. Cook Family

Page 9 -OPINION & ORDER

Builders, LLC, 3:17-CV-266-PK, 2018 WL 1631453, at *4 (D. Or. Mar. 6, 2018) (citing Frevach
Land Co. v. Multnomah Cnty., No. CV-99-1295-HU, 2001 WL 34039133, at *10-12 (D. Or.

2001)).
For purposes of fee petitions filed in the District of Oregon, block billing is
defined as any time entry of three or more hours either containing four or more
tasks or, in the alternative containing two or more tasks, where at least one of the
tasks could have taken anywhere from a small to a substantial amount of time.
Notwithstanding the foregoing, closely related but discretely identified blockbilled tasks will be aggregated into a single task for purposes of determining
whether the District of Oregon's prohibition against block billing has been
violated. Because the practice of block billing systematically impairs the court's
ability to ascertain the reasonableness of an attorney's time expenditures, the
courts of the District of Oregon have of long standing adopted the practice of
eliminating block-billed time entries in their entirety from the lodestar calculation.
Ayala, 2018 WL 1631453, at *4 (internal citations omitted).

Although the challenged entry flirts with the impermissible practice of block billing, the
Court does not believe that striking the entire entry is necessary. Pulling the documents appears
to have been part of Kuranz's review of discovery and "Focus on Wage Claims," seems to have
been a "note-to-self," rather than a distinct task. Upon review, the Court finds Defendants'
suggestion reasonable and reduces the hours claimed by Kuranz by 1.00 for the time spent
pulling and copying documents for depositions on February 21, 201 7, as that time was spent
performing non-billable clerical work.
Finally, Defendants argue that 23.l 0 of the hours claimed by Kuranz were spent
performing paralegal tasks and that Kuranz should only be permitted to bill that time at a reduced
"paralegal rate" of $100 per hour. 0' Connor Deel. Ex. A, at 12-13. The Court has reviewed the
challenged entries, which all relate to document and discovery review, and is not convinced.
While experienced paralegals and law clerks are often entrusted with review of discovery
materials, that work is just as often assigned to junior attorneys. Kuranz is the only attorney in

Page 10-0PINION & ORDER

his practice, with no junior associates available to perform the tedious but necessary work of
document review. The Court finds no justification for reducing Kuranz's fee rate for the time
spent reviewing discovery in this case.
In sum, the Court reduces the hours claimed by Wilson for Kuranz by 1.10 hours for time
spent on administrative and clerical tasks, in addition to those hours Wilson concedes in his
Reply.

The hours Defendants characterize as spent on "paralegal tasks" will be billed at

Kuranz's full rate.
b. Arnett

With respect to the hours claimed for Arnett's work, the Court must distinguish between
clerical work, which is not recoverable, and the more substantive tasks that justify the
employment of a paralegal. In Key Bank, NA. v. Van Noy, 598 F. Supp.2d 1160 (D. Or. 2009),
the court granted fees for a paralegal performing "tasks which required the application of certain
legal knowledge and the exercise of judgment," but not for secretarial tasks.

Id. at 1165.

"Paralegal costs may be recoverable 'only to the extent that the paralegal performs work
traditionally done by an attorney.'" Id. at 1166 (quoting Allen v. United States Steel Corp., 665
F.2d 689, 697 (5th Cir. 1982)).
In this case, Arnett's responsibilities primarily involved the preparation of a voluminous
spreadsheet detailing the sums Wilson contended he was owed in unpaid overtime, as well as the
gaps between installation assignments.

Arnett Deel.

The spreadsheet was prepared by

aggregating information from Wilson's various employment records, while also "revising the
wage calculation formula and spreadsheet format to create the most accurate overtime
calculation possible." Id.

Page 11 -OPINION & ORDER

Wilson claims that this involved "thoughtful analysis of the records

and mathematical skills," and anticipated that the spreadsheet would be used in settlement
negotiations and as a potential trial exhibit. Id.
The Court has reviewed the record and is satisfied that Arnett's work went beyond simple
data entry and cannot reasonably be classified as clerical or administrative in nature. The Court
therefore concludes that Wilson is entitled to recover fees for the 166.40 hours of work
performed by Arnett. As previously discussed, these hours will be billed at a paralegal rate of
$90 per hour.
2. Multiple Attorneys
In addition to Kuranz, Wilson retained Snyder and Lloyd as expert trial counsel in the
months before the parties reached a settlement. Kuranz Deel. Defendants object to several
instances where multiple attorneys attended the same conference or hearing and both attorneys
billed for the time. The courts of this District routinely exclude from the lodestar calculation any
time entries indicating that more than one lawyer performed the same task:
A party is certainly free to hire and pay as many lawyers as it wishes, but cannot
expect to shift the cost of any redundancies to its opponent. Instead it can only
shift the reasonable attorney fee expended. A fee that is "not excessive" may still
be unreasonable. When attorneys hold a telephone or personal conference, good
"billing judgment" mandates that only one attorney should bill that conference to
the client, not both attorneys. The same good "billing judgment" requires
attorneys not to bill for more than two attorneys to review pleadings or to attend
oral argument.
Lemus, 876 F. Supp.2d at 1179 (quoting Nat'l Warranty Ins. Co. v. Greenfield, No. CV-97-1657ST, 2001 WL 34045734, at *5 (D. Or. Feb. 8, 2001)).
On November 27, 2017, Kuranz billed 1.40 hours for "Prepare Motion to Reopen
Discovery; Prepare for Hearing w/Court; Rule 16 Conference held w/ the Court." Kuranz Deel.
Ex. 1, at 19. Snyder also billed 0.30 hours for attending the Rule 16 conference. Snyder Deel.
Ex. 1, at 1. ECF No. 118-1. The Court is not convinced it was necessary for both Kuranz and

Page 12 -OPINION & ORDER

Snyder to attend that routine hearing. 3 In any event, the "good billing judgment" discussed in
Lemus mandates that only one attorney should bill for attending the conference. The Court

concludes that Kuranz's attendance, as the lead attorney and the one most experienced in the
case, was reasonably necessary. Accordingly, the Court reduces the hours claimed by Wilson for
Snyder by 0.30 hours for the time spent at the scheduling conference on November 27, 2017.
On January 8, 2018, Kuranz billed 0.30 hours for "TIC to Cooperating Counsel Holly
Lloyd to discuss case status; division of labor toward trial." Kuranz Deel. Ex. 1, at 19. Lloyd
also billed 0.30 hours for the same telephone call and a follow-up email. Snyder Deel. Ex. 1, at
1. "In general, two attorneys cannot bill for communicating with each other, as such time is
duplicative and unnecessary." Muller, 2017 WL 6209701, at *5 (internal quotation marks and
citation omitted). Good billing judgment mandates that only one attorney be permitted to bill for
the time Wilson's attorneys spent conferring amongst themselves. The Court therefore reduces
the hours claimed by Lloyd by 0.30 hours.
On April 2, 2018, Kuranz billed 6.0 hours preparing for and attending a judicial
settlement conference. Kuranz Deel. Ex. 1, at 21. On the same day, Snyder billed 3.80 hours for
"Attend Judge You's settlement conference."

Snyder Deel. Ex. 1, at 2.

Unlike a routine

scheduling or status conference, the Court can easily see the value of having an attorney of
Snyder's skill and experience assist in settlement negotiations. The Court therefore declines to
reduce Snyder's hours for the time spent participating in the judicial settlement conference.
3. Duplicative, Redundant, or Excessive Hours

Fees may be reduced for expenses that appear excessive, redundant, or otherwise
unnecessary in light of the tasks performed. Hensley, 461 U.S. at 434. Defendants challenge a

3

Lloyd also spent 0.30 hours at the conference on November 27, 2017, but did not bill for the time. Snyder Deel.
Ex. 1, at I.

Page 13 -OPINION & ORDER

number of Kuranz's billing entries as duplicative, redundant, or excessive. O'Connor Deel. Ex.
A, at 15-17. The Court has reviewed the record and, for the sake of brevity, will only address
those entries where it finds Defendants' objections to be merited, although the arguments
concerning unsuccessful motions and Wilson's claims for "fees-on-fees" will be addressed in
separate sections.
On March 6, 2017, Kuranz billed 0.40 hours for "Review 2nd Set of Requests for
Production." Kuranz Deel. Ex. 1, at 9. The Court concludes that this entry is duplicative of the
0.40 hours for "finishing" the Second Requests for Production on March 5, 2017, and a further
0.30 hours for "finalizing" the same document on March 6, 2017. Id.

The Court therefore

reduces Kuranz's hours by 0.40.
On April 11, 2017, Kuranz billed 3.70 hours for reviewing discovery and preparing a
conferral letter to opposing counsel on a motion to compel. Kuranz Deel. Ex. 1, at 9. On April
12, 2017, Kuranz billed a further 1.20 hours researching, finalizing, and sending the conferral
letter. Id. The Court concludes that this is duplicative and excessive and reduces Kuranz's hours
by 1.20.
On May 30, 2017, Kuranz billed 2.90 hours for preparing a corporate deposition notice.
Kuranz Deel. Ex. 1, at 12. On June 26, 2017, Kuranz billed a further 2.90 hours for "Prepare
Corporate Representative Deposition Notice; Email to O/C with Corporate Deposition Notice
and Scheduling; Confirm Scheduling of Deposition [by] video." Kuranz Deel. Ex. 1, at 15. The
Court concludes that the second entry is duplicative and, to the extent that it contains nonduplicative work, those tasks are clerical in nature and reduces Kuranz's hours by 2.90.
Between February 15 and 19, 2018, Kuranz billed 4.60 hours for preparing a "Settlement
Communication Offer," including time spent conferring with Wilson and co-counsel. Kuranz

Page 14 -OPINION & ORDER

Deel. Ex. 1, at 20. The settlement communication is only two pages long and largely consists of
a recitation of previous unsuccessful settlement efforts. Kuranz Deel. Ex. 8, at 1-2. The Court
concludes that 4.60 hours is an excessive amount of time for preparing such a document and
reduces Kuranz's hours by 2.60.
On February 26, February 28, and March 29, 2018, Kuranz billed 5.30 hours for
reviewing and preparing jury instructions. Kuranz Deel. Ex. 1, at 20-21. The Court concludes
that this is duplicative of the hours billed by Lloyd for preparing jury instructions in the same
period. Snyder Deel. Ex. 1, at 2. The Court reduces Kuranz's hours by 5.30.
In total, the Court finds that 12.40 of the hours claimed by Kuranz were excessive,
redundant, or duplicative.
4. Travel Time

Wilson seeks fees for time Kuranz spent traveling to and from Medford, which was billed
at a reduced rate of $150 per hour. Kuranz Deel. Defendants object that fees for time spent
travelling is not generally recoverable and that, even if recoverable, the hours expended were not
reasonably incurred.
As to the first issue, the Court concludes that Wilson is not barred from recovering fees
for travel time.

"Billing for travel time, in addition to travel expenses, is customary for

feepaying clients within the District of Oregon." Arnoldv. Pfizer, Inc., No. 3:10-cv-01025-AC,
2015 WL 4603326, at *13 (D. Or. July 29, 2015); see also Jackson & Perkins Wholesale, Inc. v.
Smith Rose Nursery, Inc., Civ. No. 03-3091-PA, 2007 WL 2458785, at *3 (D. Or. Aug. 23,
2007) ("If properly supported and reasonable, the court may award fees for travel.").
In this case, the Court concludes that it was reasonable for Kuranz to travel to Medford to
participate in depositions and declines to eliminate the associated travel time. On August 29,

Page 15-0PINION & ORDER

2017, Kuranz spent 4.50 hours driving to Medford for oral argument on the motions for
summary judgment. Kuranz Deel. Ex. 1, at 18. The Court would have permitted Kuranz to
appear by telephone for the sake of efficiency and Defendants' counsel did appear by telephone
at the hearing in question. ECF Nos. 93, 95. The Court therefore reduces the travel hours
claimed by Kuranz by 4.50.
5. Unsuccessful Claims and Partial Success

Defendants challenge a number of the hours claimed by Kuranz, which were spent
pursuing unsuccessful claims and motions. Where a plaintiff succeeds on only some of his
claims, the Supreme Court has adopted a two-part test to determine whether a requested fee
should be reduced: "First, did the plaintiff fail to prevail on claims that were unrelated to the
claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes
the hours reasonably expended a satisfactory basis for making a fee award?" Hensley, 461 U.S.
at 434.
Under Hensley's two-part test, if the unsuccessful and successful claims are unrelated, the
fee award may not include fees for time spent litigating the unsuccessful claims. Thorne v. City
of El Segundo, 802 F .2d 1131, 1141 (9th Cir. 1986). Related claims "involve a common core of

facts or [are] based on related legal theories." Id. (internal quotation marks and citation omitted).
Unrelated claims are "distinctly different" and based on disparate facts and legal theories. Id.
Factors that may be relevant in determining relatedness include whether the different claims
were designed to seek relief for the same course of conduct, whether the claims were presented
separately, whether testimony on claims overlapped, and whether evidence concerning one claim
was material and relevant to another. Id.

Page 16-0PINION & ORDER

If the unsuccessful and successful claims are related, the court must apply the second part
of the Hensley test and gauge the overall success of the plaintiff in relation to the hours
expended.

Id.

"If the plaintiff obtained 'excellent results,' full compensation may be

appropriate, but if only 'partial or limited success' was obtained, full compensation may be
excessive." Id. (quoting Hensley, 461 U.S. at 435-37).
In this case, Wilson's First Amended Complaint brought claims for (1) unpaid wages and
overtime; (2) unlawful deductions; (3) employment discrimination; (4) wrongful discharge; and
(5) for collective action on behalf of a class of similarly situated installation technicians. ECF
No. 13. On June 29, 2017, Wilson voluntarily dismissed his individual claims for employment
discrimination, wrongful discharge, and unpaid minimum wage, leaving his claims for unpaid
overtime and unlawful deductions. ECF Nos. 70, 71. This Court then recommended denial of
Wilson's motion to certify the collective action, which was adopted over Wilson's objections.
ECF Nos. 82, 96. The parties filed cross motions for summary judgment. ECF Nos. 72, 76.
This Court recommended that Wilson's motion for summary judgment be denied and
Defendants' motion for summary judgment be granted in part and denied in part. ECF No. 97.
The recommendation was adopted after another round of objections. ECF No. 102.
The Court concludes that there are some areas where the hours claimed Wilson were
clearly attributable only to the dismissed and unsuccessful claims and the hours are not
reasonably related to the claims upon which he ultimately prevailed. Within that category are
hours related to a discovery dispute in January 2017, in which Defendants sought to subpoena
Wilson's medical records and his personnel files from past employers. The Court resolved the
issue by formal order, in which it held that the discovery Defendants sought was relevant
specifically to Wilson's claims for employment discrimination and wrongful termination. ECF

Page 17 -OPINION & ORDER

No. 21. The 10.70 hours Kuranz expended between January 10 and January 27, 2017, disputing
discovery on Wilson's medical and past employment records were not related to the eventual
successful claims and must be excluded from the lodestar.
On February 7, 2017, Kuranz spent 2.50 hours researching "Issues Concerning Discovery
of Plaintiffs' Medical Records; Prepare Objections to Subpoena for Medical Records." Kuranz
Deel. Ex. 1, at 7. On February 8, 2017, Kuranz spent a further 2.10 hours "Finaliz[ing] Motion
to Quash or for a Protective Order for Plaintiffs Medical Records." Id. These 4.60 hours are
also related solely to the dismissed claims for employment discrimination and will be excluded
from the lodestar.
The Court likewise concludes that Wilson's collective action claim was distinctly
different from his surviving individual claims by virtue of being focused on identifying similarly
situated individuals.

The Court therefore excludes from the lodestar any hours that are

attributable to Wilson's unsuccessful attempt to assemble and certify a collective action class.
Although Kuranz affirms that he has eliminated time spent on the motion to certify, Reply Mem.
5; Kuranz Deel. Ex. 2, Defendants have identified and objected to a number of remaining entries
that also appear to relate to the unsuccessful class certification process. O'Connor Deel. Ex. A,
at 7-9. The Court has reviewed these entries and notes that many are clearly related to the
unsuccessful collective action claim, but that they may have yielded witness statements and other
information relevant to Wilson's individual claims. The Court will therefore reduce the claimed
hours by half, yielding a reduction of 4.65 hours.
A more general issue, however, is that the time Kuranz spent pursuing the successful and
unsuccessful claims throughout the discovery process is undifferentiated.

Although Wilson

argues that the his overtime and unlawful deduction claims share a common core of facts with

Page 18 -OPINION & ORDER

his dismissed claims for employment discrimination and wrongful discharge and that the full
amount of claimed hours should be awarded, the Court is not convinced. Although there may be
some facts that are relevant to both claims, it is clear that the claims are distinctly different and

rely on disparate legal theories. For instance, as noted above and in the Court's discovery order
of January 26, 2017, ECF No. 21, Defendants were entitled to pursue discovery concerning
Wilson's medical history and past employment records with respect to his claims for
employment discrimination and wrongful discharge, but that information would not be relevant
to a claim for unpaid overtime.

Under these circumstances, the Court concludes that it is

reasonable to reduce the undifferentiated billing entries to account for time spent pursuing
discovery on the unsuccessful claims.
Defendants argue that this reduction should be by half, based on the assumption that
Kuranz devoted equal time to all claims, but such a drastic reduction is not warranted on this
record. In his Reply, Wilson affirms that Kuranz spent between 5% and 10% of the time in
depositions on matters related to employment discrimination and wrongful discharge and Kuranz
estimates that only 10% of the discovery materials produced in this case were related to those
claims. Based on these figures, Wilson suggests that a reduction of no more than 10%, or 12.74
hours, is reasonable to account for time spent on discovery concerning dismissed claims. The
Court finds Wilson's suggestion reasonable and reduces the hours claimed by Kuranz by 12.74
to account for time spent pursuing discovery related to the unsuccessful claims.
In total, the Court reduces the hours claimed by Wilson for Kuranz by 32.69 for time
pursuing unsuccessful and unrelated claims.
Courts may also "impose a small reduction, no greater than 10 percent-a 'haircut'based on its exercise of discretion and without a more specific explanation." Moreno, 534 F.3d

Page 19 -OPINION & ORDER

at 1112; O'Connor v. Cnty. of Clackamas, 2016 WL 3063869, at *4 (D. Or. May 31, 2016)
(applying the "haircut" reduction after eliminating specific billing entries). This reflects, as
Kuranz aptly observed at oral argument, the need for the Court to do "rough justice" when
assessing fee petitions. Upon consideration of the record, and in particular considering the scope
of the litigation relative to the results achieved, the Court concludes that a haircut reduction of
10% is warranted in this case.
6. Total Reasonable Award

After applying the reductions discussed above, the Court finds that the following figures
represent the total reasonable award, based on the lodestar. The hours claimed by Wilson for the
time Kuranz spent preparing and litigating the fee petition are discussed separately and are not
included in these figures.
For Quinn Kuranz, the Court finds that 268.61 hours were reasonably expended in this
case. That total includes 9.50 hours for travel, which Kuranz billed at half his normal rate. At
$300 per hour, this yields $79,158.00. 4 The Court further reduced this sum by 10%. The final
fee award for Kuranz is therefore $71,242.20. Judy Snyder reasonably billed 11.10 hours at
$450 per hour, for a fee award of $4,995.00. Holly Lloyd reasonably billed 7.60 hours at $375
per hour, for a fee award of $2,850.00. Kathryn Arnett reasonably billed 166.40 hours at a
paralegal rate of $90 per hour, for a fee award of $14,976.00.
C. Fees-on-Fees

As noted, a party is entitled to seek reasonable attorney fees for the time spent pursuing a
fee petition. Guerrero, 70 F.3d at 1112. In this case, Wilson is seeking to claim 38.90 hours
spent preparing the original attorney fee petition, plus a further 23.60 hours spent preparing the

4

$79,158.00 being the sum of$77,733.00 (for 259.11 hours at $300 per hour) and $1,425.00 (9.50 hours at $150 per
hour).

Page 20 -OPINION & ORDER

reply brief, and 2.50 hours preparing for and attending oral argument on the motion, for a total of
65.00 hours expended in pursuit of attorney fees. As a preliminary matter, the Court will not
credit the time spent pursuing the unsuccessful motions to re-open discovery and compel
production. ECF Nos. 129, 132. Between May 24 and May 31, 2018, Kuranz billed 3.60 hours
for Wilson's unsuccessful motion to re-open and compel discovery. Second Kuranz Deel. Ex. 5.
Kuranz's hours are reduced accordingly.

This yields an adjusted total of 61.40 hours, or

$18,420.00 at $300 per hour, for "fees-on-fees."
Defendants assert that Wilson is claiming a facially unreasonable amount of time to
devote to an attorney fee petition and argue that no more than 8.00 hours is reasonable.
Defendants do not, however, identify any specific billing entries as excessive or unreasonable.
The Ninth Circuit has approved arithmetic reduction of an award of fees-on-fees by the ratio of
the fees actually awarded in the underlying fee dispute to the amount therein requested. See,
e.g., Thompson v. Gomez, 45 F.3d 1365, 1366-1368 (9th Cir. 1995); see also Atwood v. PCC
Structurals, No. 3:14-cv-00021-HZ, 2016 WL 2944757, at *1 n.2 (D. Or. April 1, 2016) ("The

Court reduces the fees for time spent on the fee petition by the same percentage as the overall
lodestar reduction.").
Here, excluding the time spent on the fee petition itself, and eliminating those hours
Wilson conceded in his initial petition and his Reply, Wilson seeks to claim 319.30 hours for
Kuranz, or $93,690.00. 5

As discussed in the preceding sections, the Court has reduced the

claimed fees for a final lodestar result of $71,242.20 for the underlying claim, a reduction of

5

As the challenged hours for preparation of the fee petition involve only work performed by Kuranz, the Court will
leave aside consideration of the hours claimed by Snyder, Lloyd, and Arnett. This total also includes the 14 hours
Kuranz billed at half his normal rate- $93,690.00 being the sum of $91,590.00 (305.30 hours at $300) and
$2,100.00 (14.00 hours at $150).

Page 21 -OPINION & ORDER

approximately 24%. Reducing the requested award of fees-on-fees by 24% yields $13,999.20,
which the Court concludes is a reasonable award for fees-on-fees in this case.
II.

Taxable and Nontaxable Expenses
Pursuant to Rule 54( d), the Court may tax specific items as costs against the losing party

as stated in 28 U.S.C. §§ 1920 and 1821. Twentieth Century Fox Film Corp. v. Entm't Distrib.,
429 F.3d 869, 885 (9th Cir. 2005). In an action under the FLSA, a prevailing plaintiff is further
entitled to recover "a reasonable attorney's fee to be paid by the defendant, and the costs of the
action." 29 U.S.C. § 216(b); see also ORS 652.200(2) (attorney fees, costs, and disbursements
recoverable for unpaid wages). "'Costs of the action' can include costs beyond those normally
allowed under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920." Robledo v. Orellana, No. 3:11-cv00758-BR, 2012 WL 442122, at *3 (D. Or. Feb. 10, 2012). Courts have found such costs to
include reasonable out of pocket expenses, such as photocopying, computerized research, and
postage. Id.; Mumford, 2016 WL 8711693, at *8. The Court has reviewed Wilson's costs and
finds that they were reasonably incurred and each is recoverable under either 28 U.S.C. § 1920
or 29 U.S.C. § 216(b). The Court therefore awards Wilson his taxable and non-taxable costs in
the full requested amount of $4, 153.72.
CONCLUSION
For the reasons set forth above, Plaintiffs Motion for Attorney Fees, ECF No. 116, is
GRANTED in part and DENIED in part. Plaintiff is awarded attorney fees in the amount of
$108,062.40 and costs and expenses in the amount of$4,153.72 .
. t_;

v_,..,/
/

/'/

~ . //d

It is so ORDERED and DATED this

/;

f~~-=•c,......:•v

/,.,.-

United States Magistrate Judge

Page 22 -OPINION & ORDER