Aichele v. Blue Elephant Holdings, LLC et al
Filing
94
Opinion and Order. The Court GRANTS in part Plaintiff's Motion for Attorney Fees and AWARDS Plaintiff attorneys' fees of $176,907.50 and paralegal fees of $17,768.40. The Court also GRANTS in part Plaintiff's Motion for Costs, Expenses, and Expert Witness Costs and AWARDS Plaintiff costs of $16,097.21. IT IS SO ORDERED. Signed on 5/24/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHERYL AICHELE,
3:16-cv-02204-BR
Plaintiff,
OPINION AND ORDER
v.
BLUE ELEPHANT HOLDINGS, LLC, a
domestic business corporation
doing business as the Human
Collective II, and DONALD
MORSE,
Defendants.
CRAIG A. CRISPIN
ASHLEY A. MARTON
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
(503) 293-5770
Attorneys for Plaintiff
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff Cheryl
Aichele’s Motion (#91) for Attorney Fees and Motion (#88) for
Costs, Expenses, and Expert Witness Costs.
For the reasons that
follow, the Court GRANTS in part Plaintiff’s Motion for Attorney
Fees and AWARDS Plaintiff attorneys’ fees of $176,907.50 and
paralegal fees of $17,768.40.
1 - OPINION AND ORDER
The Court also GRANTS in part
Plaintiff’s Motion for Costs, Expenses, and Expert Witness Costs
and AWARDS Plaintiff costs of $16,097.21.
BACKGROUND
Plaintiff filed her Complaint in the Multnomah County
Circuit Court, State of Oregon.
Plaintiff alleged claims for
retaliation in violation of Title VII, 42, U.S.C. § 2000e-3;
retaliation in violation of Oregon Revised Statutes
§ 659A.030(1)(f) and § 654.062(5); and whistleblowing pursuant to
Oregon Revised Statutes § 659A.199.
On November 11, 2016, Defendants Blue Elephant Holdings,
Inc., and Donald Morse removed Plaintiff’s case to this court.
On August 7, 2017, Defendants filed a Motion (#31) for
Summary Judgment.
On November 13, 2017, the Court issued an Opinion and Order
(#56) in which it granted Defendants’ Motion as to Plaintiff’s
claims against Morse and dismissed those claims.
The Court,
however, denied Defendants’ Motion as to Plaintiff’s claims
against Blue Elephant.
On November 27, 2017, counsel filed a Motion (#57) to
Withdraw as attorneys for Defendants.
On December 13, 2017, following notice to Blue Elephant and
providing it with an opportunity to obtain new counsel, the Court
granted counsel’s Motion to Withdraw.
2 - OPINION AND ORDER
Order #63.
On December 21, 2017, Plaintiff filed a Motion (#64) to
Strike Blue Elephant’s Answer and for Entry of Default against
Blue Elephant.
On January 18, 2018, the Court granted Plaintiff’s Motion,
struck Blue Elephant’s Answer, and entered default against Blue
Elephant.
Order #66.
On January 31, 2018, Defendant filed a Motion (#69) for
Entry of Judgment.
On March 22, 2018, the Court held an evidentiary hearing
regarding Plaintiff’s damages at which Plaintiff and an expert
testified.
On March 27, 2018, the Court entered Judgment (#84) against
Blue Elephant and awarded Plaintiff $20,160.00 in economic
damages and $150,000.00 in noneconomic damages.
On April 10, 2018, Plaintiff filed a Motion (#91) for
Attorney Fees and a Bill of Costs (#88).
Plaintiff seeks
attorneys’ fees and fees for legal assistants and paralegals in
the amount of $202,926.00 and costs in the amount of $16,980.00.
DISCUSSION
As noted, in her Complaint Plaintiff alleged claims for
retaliation in violation of Title VII, 42, U.S.C. § 2000e-3;
retaliation in violation of Oregon Revised Statutes
§ 659A.030(1)(f) and § 654.062(5); and whistleblowing pursuant to
3 - OPINION AND ORDER
Oregon Revised Statutes § 659A.199.
I.
Attorneys' Fees, Legal Assistant Fees, and Paralegal Fees.
Plaintiff obtained a Judgment against Blue Elephant on
March 27, 2018.
Plaintiff now seeks attorneys’ fees pursuant to
42 U.S.C. § 2000e-5(k) as to her federal claims and pursuant to
Oregon Revised Statutes § 659A.885(1) and (2) as to her state-law
claims.
Plaintiff states the total fee amount of $229,215.00 was
reviewed to eliminate “excessive, redundant or other unnecessary
time.”
This resulted in a reduction of $26,289.00 or 11.5% of
the initial computation of fees.
Plaintiff, therefore, seeks
recovery of $202,926.00 in fees for attorneys, legal assistants,
and paralegals.
Even though Defendant has not objected to Plaintiff’s
requests, the Court has an independent duty to review a motion
for attorneys’ fees for reasonableness.
F.2d 1392, 1398 (9th Cir. 1992).
Gates v. Deukmejian, 987
See also Cruz v. Alhambra Sch.
Dist., 282 F. App'x 578, 580 (9th Cir. 2008)(The district court
has an "obligation to articulate . . . the reasons for its
findings regarding the propriety of the hours claimed or for any
adjustments it makes either to the prevailing party's claimed
hours or to the lodestar.").
A.
Standards
The Supreme Court has stated under federal fee-shifting
4 - OPINION AND ORDER
statutes that "the lodestar approach" is "the guiding light" when
determining reasonable fees.
551 (2010).
Perdue v. Kenny A., 559 U.S. 542,
Under the lodestar method the court first determines
the appropriate hourly rate for the work performed and then
multiplies that amount by the number of hours properly expended
in doing the work.
Id.
Although "in extraordinary
circumstances" the amount produced by the lodestar calculation
may be increased, "there is a strong presumption that the
lodestar is sufficient."
Id. at 556.
The party seeking an award
of fees bears "the burden of documenting the appropriate hours
expended in the litigation, and [is] required to submit evidence
in support of those hours worked."
United Steelworkers of Am. v.
Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc., 512 F.3d
555, 565 (9th Cir. 2008)(quotations omitted).
When "determining
the appropriate number of hours to be included in a lodestar
calculation, the district court should exclude hours 'that are
excessive, redundant, or otherwise unnecessary.'"
McCown v. City
of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009)(quoting Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983)).
To determine the lodestar amount the court may consider
the following factors:
(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
5 - OPINION AND ORDER
fixed or contingent; (7) any 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.
Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997,
1007 n.7 (9th Cir. 2002)(quotation omitted).
A rote recitation
of the relevant factors is unnecessary as long as the court
adequately explains the basis for the award of attorneys' fees.
McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th
Cir. 1995).
The lodestar amount is presumed to be the reasonable
fee, and, therefore, "'a multiplier may be used to adjust the
lodestar amount upward or downward only in rare and exceptional
cases, supported by both specific evidence on the record and
detailed findings by the lower courts.'"
Summers v. Carvist
Corp., 323 F. App'x 581, 582 (9th Cir. 2009)(quoting Van Gerwen
v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000)).
"Adjustments [to the lodestar amount] must be carefully tailored
. . . and [made] only to the extent a factor has not been
subsumed within the lodestar calculation."
Rouse v. Law Offices
of Rory Clark, 603 F.3d 699, 704 (9th Cir. 2009)(citing Camacho
v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008)).
B.
Time Expended
Plaintiff seeks to recover fees for the time that the
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following professionals spent handling Plaintiff’s claims against
Defendant:
attorneys Craig Crispin, Shelley Russell, Ashley
Marton, and Paul Judd; legal assistant Jackie Burnett; and
paralegal David Zambrano.
The hourly billing records for the
services of the attorneys, legal assistant, and paralegal were
submitted with the Declarations of Craig Crispin (#90) and Ashley
Marton (#89).
Those records reflect a total of 730.70 hours
(536.20 hours by the attorneys, 155 hours by the legal assistant,
and 39.5 hours by the paralegal) spent in the handling of this
case.
The total hours, however, correlate to the total fees of
$229,215.00 rather than the reduced fees actually sought by
Plaintiff.
As noted, Plaintiff reduced the total fees to account
for “excessive, redundant or other unnecessary time.”
A review
of the records indicates Plaintiff made a reduction of 133.3
hours (91.5 hours for attorneys, 22.4 hours for the legal
assistant, and 19.4 hours for the paralegal).
This resulted in a
total of 597.4 hours (444.7 hours by the attorneys, 132.6 hours
by the legal assistant, and 20.1 hours by the paralegal), which
corresponds to the $202,926.00 in fees actually sought by
Plaintiff.
The records Plaintiff submitted in support of her
request indicate the attorneys, legal assistant, and paralegal
investigated and negotiated Plaintiff’s claims before filing the
7 - OPINION AND ORDER
Complaint; represented Plaintiff before the Bureau of Labor &
Industries (BOLI); filed the Complaint in state court; handled
and responded to extensive discovery requests, including
Plaintiff’s Motion to Compel; prepared pleadings related to
motion practice, including the response to Defendants’ Motion for
Summary Judgment and Plaintiff’s own Motion for Partial Summary
Judgment; performed legal research; prepared discovery motions;
corresponded and met with Plaintiff; retained and prepared expert
witnesses; drafted pleadings for entry of default and judgment;
appeared in court for hearings; and drafted Plaintiff’s Motion
for Attorney Fees and Bill of Costs.
On this record the Court concludes the time spent by
the attorneys and the paralegal on this matter was reasonable.
The Court, however, concludes Plaintiff is not entitled to
recover fees for the time the legal assistant spent on this
matter as explained below.
C.
Requested Hourly Rates for Attorneys
To determine the reasonable hourly rate of an attorney,
this Court uses the most recent Oregon State Bar Economic Survey
published in 2017 as its initial benchmark.
Attorneys may argue
for higher rates based on inflation, specialty, or any number of
other factors.
1.
Attorney Crispin
Plaintiff requests an hourly rate of $525 for the
8 - OPINION AND ORDER
time of attorney Crispin.
Crispin states in his Declaration that
he has over 36 years of experience as an employment litigation
lawyer.
He is the managing shareholder and president of Crispin
Employment Law PC and regularly represents clients in state and
federal courts.
He was admitted to the Washington State Bar in
1981 and the Oregon State Bar in 1982.
The Oregon State Bar Economic Survey rates for an
attorney with comparable years of practice in Portland is between
$413 and $610 per hour.
Thus, the hourly rate of $525 sought by
Crispin is within the compensation range of the Economic Survey.
On this record the Court concludes the hourly rate
of $525 for attorney Crispin is reasonable.
The Court,
therefore, awards attorneys’ fees for Crispin of $123,480.00
(235.2 hrs. x $525/hr.).
2.
Attorney Russell
Plaintiff requests an hourly rate of $425 for the
time of attorney Russell (who has since been appointed to the
Multnomah County Circuit Court as a general-jurisdiction trial
judge).
Russell states in her Declaration that she has over 23
years of experience as an employment lawyer.
She was a
shareholder of Crispin Employment Law PC until her appointment to
the state court.
As a lawyer Russell regularly represented
clients in state and federal courts.
Oregon State Bar in 1994.
9 - OPINION AND ORDER
She was admitted to the
The Oregon State Bar Economic Survey rates for an
attorney with comparable years of practice in Portland is between
$394 and $525 per hour.
Thus, the $425 hourly rate sought by
Russell is within the compensation range of the Economic Survey.
On this record the Court concludes the hourly rate
of $425 for Russell’s work as one of Plaintiff’s attorneys is
reasonable.
The Court, therefore, awards attorneys’ fees for
Russell of $1,360.00
(3.2 hrs. x $425/hr.).
3.
Attorney Marton
Plaintiff requests an hourly rate of $275 for the
time of attorney Marton.
Marton states in her Declaration that
she is currently an associate attorney at Crispin Employment Law
PC and has seven years of experience as a lawyer representing
employment and personal injury clients.
Marton was originally
admitted to practice in Arizona in 2012 and was admitted to the
Oregon State Bar in 2017.
The Oregon State Bar Economic Survey rates for an
attorney with comparable years of practice in Portland is between
$282 and $400 per hour.
Thus, the $275 hourly rate sought by
Marton does not exceed the compensation range of the Economic
Survey.
On this record the Court concludes the hourly rate
of $275 for attorney Marton is reasonable.
10 - OPINION AND ORDER
The Court, therefore,
awards attorneys’ fees for Marton of $39,627.50 (144.1 hrs. x
$275/hr.).
4.
Attorney Judd
Plaintiff requests an hourly rate of $200 for
attorney Judd’s time.
Although Judd did not submit a
declaration, Crispin states in his Declaration that Judd was an
associate attorney with the firm for approximately 18 months,
graduated from Emory Law School, and is admitted to the Oregon
State Bar.
Crispin, however, does not state when Judd was
admitted to the Oregon Bar or the number of years that he has
practiced.
Based on Crispin’s statement that Judd was an
associate for 18 months, it is reasonable to conclude Judd has
approximately two years of experience.
The Oregon State Bar Economic Survey rates for an
attorney with comparable years of practice in Portland is between
$236 and $305 per hour.
Thus, the $200 hourly rate sought by
Judd does not exceed the compensation range of the Economic
Survey.
On this record the Court concludes the hourly rate
of $200 for attorney Judd is reasonable.
The Court, therefore,
awards attorneys’ fees for Judd of $12,440.00 (62.2 hrs. x
$200/hr.).
D.
Requested Hourly Rate for Paralegal and Legal Assistant
The Court relies on the National Utilization and
11 - OPINION AND ORDER
Compensation Survey Report published by The Association of Legal
Assistants•Paralegals (NALA) in 2016 to determine the reasonable
hourly billable rate for paralegals.
1.
Paralegal Burnett
Plaintiff requests an hourly rate of $185 for
paralegal Burnett’s time.
Attorney Crispin states in his
Declaration that Burnett has an Associate of Applied Science
Degree in Paralegal Studies from Portland Community College; has
been employed by the firm for over 11 years; and assists the firm
with witness management and interviews, performs document and
discovery management, prepares routine legal documents, performs
legal research, and assists with trial preparation.
The NALA Survey Report indicates the average hourly
billing rate in 2016 was $146 for paralegals in the Far West
Region (which includes Oregon).
Specifically, the average hourly
billing rate was $134 for paralegals with comparable years of
experience (11-15 years).
Plaintiff has not submitted any
support for the hourly rate sought for Burnett other than
Crispin’s
opinion that the rate “is well within the range of
rates charged for paralegals performing similar work in the
Portland metropolitan area.”
This matter involved an employment issue with extensive
discovery and motion practice.
Burnett worked over 20% of the
total hours spent by the firm in representing Plaintiff.
12 - OPINION AND ORDER
On this record the Court concludes an hourly rate of
$134 per hour for paralegal time is reasonable.
The Court,
therefore, awards paralegal fees for Burnett of $17,768.40
(132.6 hrs. x $134/hr.).
2.
Legal Assistant Zambrano
Plaintiff requests an hourly rate of $75 for the
time that legal assistant Zambrano worked on this case.
Attorney
Crispin states in his Declaration that Zambrano primarily
performs clerical duties, but Zambrano records his time when the
work he performs exceeds clerical work that includes a
substantive component or requires skill and discretion beyond
clerical work.
The billing records show a total of 39.5 hours
worked by Zambrano.
Plaintiff, however, reduced the number of
hours for which she seeks recovery for Zambrano’s work to 20.1
hours.
A review of the records for these hours reflects Zambrano
reviewed client journals, reviewed and indexed production
documents, and performed other duties, but
there is not,
however, any evidence in this record regarding Zambrano’s
education or years of experience.
The Court has not found any report that reflects
hourly billing for legal assistants (as opposed to paralegals),
and Crispin states only that the hourly rate sought is “based on
[his] review of rates for comparable legal assistants in the
Portland community.”
13 - OPINION AND ORDER
On this record the Court concludes Plaintiff has
not supported the hourly rate requested for work performed by
Zambrano, and the Court, therefore, does not award any fees for
his work.
In summary, the Court AWARDS attorneys’ fees in the amount
of $176,907.50 and paralegal fees in the amount of $17,768.40 for
a total of $194,675.90 as follows:
Name
Hourly Fee
Hours
Fee Awarded
Craig Crispin,
Attorney
$525.00
235.2
Shelley Russell,
Attorney
$425.00
3.2
Ashley Marton,
Attorney
$275.00
144.1
$ 39,627.50
Paul Judd,
Attorney
$200.00
62.2
$ 12,440.00
Total Attorneys’ Fees
Jackie Burnett,
Paralegal
$123,480.00
$
1,360.00
$176,907.50
$134.00
132.6
TOTAL FEES
$ 17,768.40
$194,675.90
PLAINTIFF'S COSTS
Plaintiff requests an award of costs in the amount of
$16,980.00 comprised of the following:
(1) filing fee - $252.00;
(2) deposition transcripts - $4,061.40; (3) witness fees $231.00; (4) service of process - $480.00; (5) records expense
(medical records and BOLI records) - $225.88; (6) expert witness
14 - OPINION AND ORDER
fees - $10,846.93; and (7) other expenses (mileage, parking,
postage, photocopies, “skip trace”) - $758.93.
Absent a showing of circumstances not relevant here, an
award of costs is governed by federal law.
See Champion Produce,
Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir.
2003).
28 U.S.C. § 1920 allows a federal court to tax specific
items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54(d)(1).
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 of the court reporter for all or any part
of the stenographic transcript necessarily
obtained for use in the case;
(3)Fees and disbursements for printing and
witnesses;
(4)Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5)Docket fees under section 1923 of this title;
(6)Compensation for court-appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under § 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
Costs generally are awarded to the prevailing party in a
civil action as a matter of course unless the court directs
otherwise.
Fed. R. Civ. P. 54(d).
The court must limit an award
of costs to those defined in 28 U.S.C. § 1920 unless otherwise
provided for by statute.
15 - OPINION AND ORDER
Grove v. Wells Fargo Fin. Ca., Inc.,
606 F.3d 577, 579-80 (9th Cir. 2010).
Expert witness fees,
although not included in § 1920, are recoverable pursuant to 42
U.S.C. § 2000e-5(k).
Here Plaintiff seeks recovery of costs for items not allowed
under § 1920, and the authorities cited by Plaintiff do not
support recovery for the costs of those items.
For example,
Plaintiff cites to Missouri v. Jenkins, 491 U.S. 274, 285-89
(1989), which addresses the recovery of paralegal time, and
Trustees of Const. Industry and Laborers Health and Welfare Trust
v. Redland Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006), which
addresses recovery of the costs of computerized research in an
ERISA action.
Accordingly, the Court awards Plaintiff the costs that are
enumerated in § 1920 totaling $16,097.21.
CONCLUSION
For these reasons, the Court GRANTS in part Plaintiff’s
Motion for Attorney Fees and AWARDS Plaintiff attorneys’ fees of
$176,907.50 and paralegal fees of $17,768.40.
16 - OPINION AND ORDER
The Court also
GRANTS in part Plaintiff’s Motion for Costs, Expenses, and Expert
Witness Costs and AWARDS Plaintiff costs of $16,097.21.
IT IS SO ORDERED.
DATED this 24th day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
17 - OPINION AND ORDER
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