Krouse v. Ply Gem Pacific Windows Corporation et al

Filing 162

ORDER: Plaintiffs Motion for Attorney Fees 149 and Bill of Costs 147 are granted in part as follows: plaintiff is awarded $35,000.00 in attorney fees and$2,967.64 in costs. Signed on 8/7/2012 by Judge Ancer L. Haggerty. (ecp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KENT KROUSE,
Plaintiff,

v.

Case No. 3:10-cv-00111-HA

ORDER

PLY GEM PACIFIC WINDOWS
CORPORATION,
Defendant.

HAGGERTY, District Judge:
Plaintiff brought suit against defendant asserting claims arising from his termination by
his fmmer employer, defendant Ply Gem Pacific Windows Corporation (Ply Gem). Plaintiff
intially filed a Complaint alleging fifteen claims for relief. Twelve of those claims were either
defeated at summary judgment or were voluntarily dismissed by plaintiff. At trial, plaintiff
proceeded with a claim for unpaid overtime pursuant to the Fair Labor Standards Act (FLSA),

ORDER-I

29 U.S.C. § 216(b); a claim for injured worker discrimination, Oregon Revised Statute (ORS)
659A.040; and a claim for safety complaint retaliation, ORS 654.062. Following a four and half
day trial, the jmy awarded plaintiff $16,160.70 for unpaid overtime wages and rejected his
injured worker and safety complaint retaliation claims. The court then awarded plaintiff an
additional $16,160.70 in liquidated damages pursuant to the FLSA for a total of$32,321.70.
Plaintiff now advances a Bill of Costs [147] seeking $6,558.44 and a Motion for Attorney Fees
[149] requesting $82,577.50. The court deemed oral argument unnecessaty for resolution of
these matters. For the following reasons, plaintiff's Bill of Costs and Motion for Attorney Fees
are granted in part.
DISCUSSION

Plaintiff seeks $82,577.50 in attorney fees and $6,558.44 in costs. Defendant objects to
the amount of fees as umeasonable given plaintiff's limited success and to a number of plaintiff's
costs including plaintiff's expert witness fees.
A.

Attorney Fees

A prevailing plaintiff in an action for unpaid overtime pursuant to the FLSA is entitled to
reasonable attomey fees and costs. 29 U.S. C.§ 216(b). The parties are largely in agreement
regarding how this court should calculate plaintiff's reasonable fees and how the comi should
reduce the requested fees, if at all. Both parties agree that this comi should utilize the lodestar
method to calculate the appropriate fees and that the court should reduce the total fees by an
across the board percentage rather than by attempting to segregate which fee entries are linked to
each pmiicular claim. However, defendant suggests that the comi cut the fees significantly,
while plaintiff recommends more of a haircut.

ORDER-2

A district couti should calculate awards of attorney fees using the "lodestar" method.

Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001 ). The "lodestar" is
calculated by multiplying the number of hours an attomey reasonably expended by a reasonable
hourly rate. 1 I d. However, "[t]he product of reasonable hours times a reasonable rate does not
end the inquiry" and "[t]here remain other considerations that may lead the district court to adjust
the fee upward or downward, including the important factor of 'results obtained."' Hensley v.

Eckerhart, 461 U.S. 424,434 (1983). The "results obtained" factor is "particularly crucial where
a plaintiff is deemed 'prevailing' even though he succeed on only some of his claims for relief."

Id. Where a plaintiff succeeds on only some of his claims, the Supreme Court has adopted a twopati test to determine whether a requested fee should be reduced. "First, did the plaintiff fail to
prevail on claims that were umelated to the claims on which he succeeded? Second, did the
plaintiff achieve a level of success that makes the hours reasonably expended a satisfactmy basis
for making a fee award?" Id.
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

ofEl Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). Related claims "involve a common core of
facts or [are] based on related legal theories." I d. (quotation and citations omitted). Umelated
claims are "distinctly different" and are based on disparate facts and legal theories. ld. Factors
that may be relevant in determining relatedness include whether the different claims were

1

Defendant does not challenge the hourly rates sought by plaintiff's counsel, nor does
defendant challenge any particular time entries. The court does not find cause to modizy the fee
award on those bases and has analyzed the factors set fmih in Kerr v. Screen Extras Guild, Inc., 526
F.2d 67, 70 (9th Cir. 1975). However, as set forth below, the court does find a basis to reduce the
requested fee in light of plaintiff's limited success and the time spent litigating unsuccessful claims.
ORDER-3

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. !d.
Ifthe unsuccessful and successful claims are found to be 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. !d. "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).
Plaintiff initially advanced fifteen claims for relief. Two of those claims were dismissed
by stipulation with each party to bear it own costs. An additional three claims were unilaterally
withdrawn by plaintiff prior to this court's order on summary judgment. There is little reason to
think that plaintiff's counsel spent significant amounts of time on any of those claims (aside from
an hour or two drafting the Complaint) and they have relatively little bearing on this court's
award of fees.
This court awarded summmy judgment to defendant on five of plaintiff's ten remaining
claims. This court dismissed plaintiff's claims for unlawful paycheck deduction, wage claim
retaliation, Family Medical Leave Act interference, and two claims for failure to pay back
wages/civil penalties. One of the five remaining claims, wrongful discharge, was not included in
the Pretrial Order and was eliminated from the lawsuit. An additional claim for whistleblowing
retaliation was not prosecuted by plaintiff and was not presented to the jury. At trial, plaintiff
proceeded with three claims: his ultimately successful FLSA for unpaid overtime, a claim for
injured worker discrimination, and a claim for safety complaint retaliation.

ORDER-4

Though all fifteen claims stem from the same employment situation, they are not all
related in-so-far as they did not require the same evidence for proof of the claims, did not involve
a common core of facts or similar legal theories, and did not address the same course of conduct.
The only claims that this court finds to be related to plaintiffs sole successful claim, are
plaintiffs claims for unlawful paycheck deduction, wage claim retaliation, and two claims for
failure to pay back wages. Though not all of these claims shared similar legal theories or facts'
with plaintiffs unpaid overtime claim, they were all aimed at the same course of conduct, namely
defendant's unlawful wage and payment practices and on that basis, the court finds them to be
related. The remaining claims however, including the two other claims brought to trial, were not
related to plaintiffs FLSA claim. Aside from a quantum of background information that must be
presented to the judge and jmy for the claims and arguments advanced by each pmiy to make
much sense, the actual facts and legal theories supporting each of the remaining unsuccessful
claims was firmly distinct from plaintiffs ove1iime allegations. Those claims dealt with
plaintiffs termination, rather than pay, and did not rely on the same facts. Because those claims
were unrelated, the comi must reduce plaintiffs requested attorney fee accordingly.
In addition to a reduction on the basis of unrelatedness, a further reduction is warranted

under the second pmi of the Hensley test given plaintiffs limited success. Of the fifteen claims
initially advanced against defendant, plaintiff prevailed on only one. Plaintiffs overall level of
success was quite low. However, to avoid a redundant reduction in plaintiffs fee, the comi
focuses on the level of success achieved by plaintiff on the unsuccessful claims related to

2

Though defendant was granted summmy judgment on each of these claims, plaintiffs
claim for wage claim retaliation and two claims for failure to pay back wages in particular lacked
any fotmdational facts.
ORDER-S

plaintiffs FLSA claim. Those claims were largely premised on a complaint by plaintiff that he
was not paid overtime or on a request for overtime compensation. However, there was no
evidence that plaintiff had ever requested the unpaid ovettime during his employ with defendant
or that he complained about not receiving the overtime pay. Op. and Order [83] at 5-9. Given
the unsubstantiated nature of these claims as well as their ultimate dismissal at summmy
judgment, it is difficult to justify an award of fees for work done on those claims. Accordingly a
reduction is in order.
From the inception of this litigation, there has been a focus on plaintiffs FLSA claim that
has resulted in a dispropmtionate amount of time being spent litigating the claim to both the
court and the jury. Accordingly, simply attributing one-fifteenth or one-tenth or even one-third
of the hours to that claim is inappropriate. Taking into account the relative importance of the
FLSA claim in this lawsuit and the demands on time it must have required, as well as fee awards
in similar cases (see, e.g, Banta v. City oflvferrill, Or., Civil No. 06-3003-CL, 2007 WL 3543445

(D. Or. Nov. 14, 2007), the cou11 finds that a fee of$35,000.00, constituting approximately fortytwo percent of the requested fee, is reasonable and appropriate. The reduction in fees shall be
appmtioned to each of plaintiffs attorneys on a percentage basis.

B.

Costs

Federal Rule of Civil Procedure 54 and the FLSA provide for an award of reasonable
costs to the prevailing patty. 29 U.S.C. § 216(b). An attomey requesting costs must file a bill of
costs, which must be verified by way of an attached affidavit that avers that the claimed costs are
conect and have been "necessarily incuned in the case and that the services for which fees have
been charged were actually and necessarily performed." 28 U.S.C. § 1924.

ORDER-6

Costs are classified as either taxable costs or non-taxable costs. The court may tax
specific items as costs against a losing patiy as stated in 28 U.S.C. §§ 1920 and 1821. Twentieth

Centwy Fox Film Corp. v. Entm't Distrib., 429 F.3d 869, 885 (9th Cir. 2005) (citation omitted).
The court has broad discretion in deciding whether to allow a prevailing party to recoup costs of
litigation, but may not tax costs beyond those authorized by § 1920. Frederick v. City of

Portland, 162 F.R.D. 139, 142 (D. Or. 1995).
Section 1920 provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) fees of the clerk and marshal; (2) fees for printed or electronically recorded
transcripts necessarily obtained for use in the case; (3) fees and disbursements for
printing and witnesses; (4) fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case; (5)
docket fees under section 1923 of this title; (6) compensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this title.
28

u.s.c. § 1920.
Federal1aw also grants this court discretion to award out-of-pocket expenses and other

costs which are not recoverable as taxable costs under 42 U.S. C. § 1920, but which are charged
to a fee-paying client. Harris v. ivfarhoefer, 24 F.3d 16, 19-20 (9th Cir. 1994). Reasonable
photocopying, paralegal expenses, and travel and telephone costs are recoverable.
Plaintiff has submitted a total cost bill of$6,558.44. Defendant objects to plaintiffs
request for $2,200.00 in expert witness fees, to $2,466.90 in costs for transcripts, and to $27.30
in other costs.
"[A]bsent express statut01y authority for shifting expert witness fees, reimbursement of
such fees is limited by 28 U.S.C. §§ 1821(b) and 1920(3)." Lovell v. Chandler, 303 F.3d 1039,
1058 (9th Cir. 2002) (quotation and citations omitted). Because the FLSA does not provide
ORDER-7

express statutmy authority for expert witness fees, plaintiffs request for $2,200.00 must be
denied. Banta, 2007 WL 3543445 at *5. However, because the expert witness did provide
limited testimony regarding plaintiffs FLSA claim, the comi will award plaintiff $40.00 for his
services as a fact witness. Defendant's objection to the $2,466.90 expended on transcripts is also
well-taken. A significant portion of those transcripts dealt with plaintiffs umelated unsuccessful
claims. Accordingly, plaintiffs requested fee of $2,466.90 is reduced in accordance with the
reduction of attorney fees and plaintiff is awarded $1036.10 for expenditures on transcripts.
Defendant's final objection to $27.30 in other costs is not well-taken as those costs are
recoverable as the costs of postage.
CONCLUSION

For the foregoing reasons, plaintiffs Motion for Attorney Fees [149] and Bill of Costs
[147] are granted in pmi as follows: plaintiff is awarded $35,000.00 in attorney fees and
$2,967.64 in costs.
IT IS SO ORDERED.
DATED this J::day of August, 2012.

~~~~
United States District Judge

ORDER-8