Matson v. United Parcel Service Inc

Filing 282

ORDER granting in part Plaintiff's 271 Second Motion for Attorney Fees and Costs signed by Judge Richard A. Jones. (TH)

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HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARY MATSON,

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Plaintiff,

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v.

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CASE NO. C10-1528 RAJ
ORDER

UNITED PARCEL SERVICES, INC.,

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Defendant.

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This matter comes before the Court on Plaintiff Mary Matson’s (“Plaintiff”)

18 Second Petition for Fees and Costs. Dkt. # 271. For the reasons set forth below, the
19 Court GRANTS IN PART Plaintiff’s Second Fee Petition.
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I.

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In September 2010, Plaintiff brought a state court action under Washington's Law

BACKGROUND

22 Against Discrimination (“WLAD”) against her former employer UPS. Dkt. # 1. UPS
23 removed the action to federal court based on diversity of citizenship. Id. The Court
24 granted UPS’s motion for summary judgment on Matson’s race discrimination, race25 based hostile work environment, and wrongful discharge claims. Dkt. # 70.
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ORDER- 1

1

This matter then went to trial for the first time. After the first trial, the jury

2 returned a verdict in favor of UPS on Plaintiff’s claims for discrimination and retaliation.
3 Dkt. # 125. The jury found, however, that UPS subjected Plaintiff to a hostile work
4 environment on the basis of her gender and awarded Plaintiff $500,000 in emotional
5 damages. Id.
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On August 2, 2012, Plaintiff filed the First Fee Petition and requested fees and

7 costs accrued between February 12, 2011 and August 2, 2012. Dkt. # 129. Plaintiff then
8 requested a fee multiplier of 1.5. Id. On August 16, 2012, UPS filed a motion for
9 judgment as a matter of law under Rule 50(b). Dkt. # 145. The Court granted UPS’s
10 motion for a new trial on the ground that the gender-based hostile work environment
11 claim was preempted under § 301 of the Labor Management Relations Act, 29 U.S.C. §
12 185(a). Dkt. # 145. In doing so, the Court terminated Plaintiff’s First Fee Petition as
13 moot. Id.
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After the second trial, the jury found in favor of UPS on the hostile work

15 environment claim, awarding Plaintiff no damages. Dkt. # 234. Plaintiff appealed. Dkt.
16 # 241. The United States Court of Appeals for the Ninth Circuit reversed the Court’s
17 preemption finding. Matson v. United Parcel Service, Inc., 840 F.3d 1126 (9th Cir.
18 2016) (Case No. 13-36174). The Court of Appeals reinstated the jury verdict from the
19 first trial and remanded the matter “for reconsideration of the damages question.” Id. at
20 1137.
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On November 3, 2017, this Court granted Plaintiff’s request to reinstate the initial

22 jury verdict of $500,000 from the first trial. Dkt. # 266. The Court ruled that its prior
23 finding of excessive damages rested on the assumption of preemption, which had then
24 been found erroneous by the Ninth Circuit. Id. When including the evidence related to
25 “extra work” assignments, the Court found that there was sufficient proof for the jury to
26 arrive at its award. Id. Accordingly, on January 29, 2018, the Court entered judgment in
27 favor of Plaintiff. Dkt. # 277.

ORDER- 2

1

On December 11, 2017, Plaintiff moved to recover its fees and petitions for the

2 period between August 2, 2012 and December 12, 2017, reflecting post-trial motions and
3 the second trial. Dkt. # 271. In this Second Fee Petition, Plaintiff requests a fee
4 multiplier of 2.0. Id. UPS opposed and Plaintiff filed a Reply. Dkt. ## 275, 278.
5

Plaintiff had also moved to recover attorneys’ fees and costs on appeal before the

6 Ninth Circuit. See Matson v. United Parcel Service, Inc., Case. No. 13-36174, Dkt. # 477 1. On March 7, 2018, the Court of Appeals awarded attorneys’ fees and non-taxable
8 costs in the amount of $218,355.75 to Plaintiff. Dkt. # 280.
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II.

DISCUSSION

Where the court exercises jurisdiction over state law claims, it generally relies on

11 state law regarding the recovery of attorney fees. MRO Communications, Inc. v. AT & T
12 Co., 197 F.3d 1276, 1281 (9th Cir.1999). The WLAD provides for an award of “the cost
13 of suit including reasonable attorneys' fees” to the prevailing party. RCW 49.60.030(2).
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A. Plaintiffs Are Entitled to Fees From the Second Trial

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Where the court exercises jurisdiction over state law claims, it generally relies on

16 state law regarding the recovery of attorney fees. MRO Communications, Inc. v. AT & T
17 Co., 197 F.3d 1276, 1281 (9th Cir.1999). The WLAD provides for an award of “the cost
18 of suit including reasonable attorneys' fees” to the prevailing party. RCW 49.60.030(2).
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The parties first dispute whether Plaintiff is entitled to any fees related to the

20 second trial. A plaintiff prevails when she obtains actual relief which materially modifies
21 the defendant’s behavior in a way that directly benefits the plaintiff. Farrar v. Hobby,
22 506 U.S. 103, 111-12, 121 L. Ed. 2d 494, 113 S. Ct. 566 (1992). The plaintiff must
23 obtain an enforceable judgment against the defendant from whom fees are sought.
24 Farrar, 506 U.S. at 110 (1992) (citing Hewitt v. Helms, 482 U.S. 755, 760 (1987)).
25 Moreover, a plaintiff need not succeed on all claims to achieve prevailing party status, as
26 “[i]t is enough that plaintiffs received some of the benefit they sought in bringing the
27 suit.” Clark v. City of Los Angeles, 803 F.2d 987, 989 (9th Cir. 1986) (citations omitted).

ORDER- 3

1 Under Washington law, “[d]etermination of which party is the prevailing party, whether
2 for the purpose of awarding costs or attorney fees, is made on the basis of which party
3 has an affirmative judgment rendered in his favor at the conclusion of the entire case.”
4 Moritzky v. Heberlein, 40 Wash. App. 181, 183, 697 P.2d 1023, 1024–25 (1985).
5 Similarly, for purposes of the WLAD, a plaintiff prevails when she succeeds in achieving
6 the benefit sought in bringing the suit. Wheeler v. Catholic Archdiocese of Seattle, 124
7 Wash. 2d 634, 643, 880 P.2d 29, 34 (1994).
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UPS argues that UPS, not Plaintiff, is the “prevailing party” under the WLAD

9 because Plaintiff did not win at the second trial. Dkt. # 375 at 2-4. The Court disagrees.
10 Plaintiff ultimately won on her hostile work environment claim, as the jury verdict of
11 $500,000 against UPS has been reinstated. Dkt. # 277. Plaintiff is thus the “prevailing
12 party” on this claim, even if she was temporarily unsuccessful for the time period
13 between the second trial verdict and the Ninth Circuit Opinion. Cf. Cabrales v. Cty. of
14 Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991) (“[A] plaintiff who is unsuccessful at a
15 stage of litigation that was a necessary step to her ultimate victory is entitled to attorney's
16 fees even for the unsuccessful stage.”).
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Although the parties do not cite a Ninth Circuit or Washington case that is directly

18 on point, Plaintiff cites to multiple authorities from other Circuits that have permitted
19 attorneys’ fees to be awarded to the prevailing party for multiple trials, “so long as ‘the
20 plaintiff’s unreasonable behavior did not cause’ the need for multiple proceedings and as
21 long as counsel’s time was reasonably expended.” Waldo v. Consumers Energy Co., 726
22 F.3d 802, 826 (6th Cir. 2013); see also Abner v. Kan. City S. Ry. Co., 541 F.3d 372, 380
23 (5th Cir. 2008) (permitting party to recover fees for trial voided through no fault of party,
24 noting that “[r]ather than looking at each trial in isolation, it is appropriate for a district
25 court . . . to focus on the ultimate result of the case.”); Shott v. Rush-Presbyterian-St.
26 Luke's Med. Ctr., 338 F.3d 736, 740 (7th Cir. 2003) (holding that when the plaintiff is not
27 responsible for the need of a second trial, the plaintiff may be compensated for time on

ORDER- 4

1 both proceedings). Plaintiff also cites a 9th Circuit case that held that in a situation where
2 the Plaintiff won the first trial, but was awarded nominal fees in the second trial, and the
3 first jury verdict was reinstated with instructions that “the fee award should be based on
4 the first jury’s damages award.” Silver Sage Partners, LTD v. City of Desert Hot
5 Springs, 251 F.3d 814, 826 (9th Cir. 2001).
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The Court finds these authorities persuasive. UPS attempts to distinguish these

7 cases by arguing that in each case the plaintiff won at the second trial. Dkt. # 275 at 5-6.
8 While this observation is technically true, it does not appear to be legally significant, as it
9 does not change the fact that in each case the court awarded attorney’s fees to the
10 ultimate prevailing party, as Plaintiff is here. Plaintiffs’ fees costs associated with post11 trial motions and the second trial were legitimate and not borne through any unreasonable
12 behavior on the part of Plaintiff. The Court believes that it would be unfair to deny
13 Plaintiff recovery of fees and costs that arose through no fault of her own. The Court also
14 finds that permitting Plaintiff to recover the costs associated with the second trial, which
15 only concerned the hostile work environment claim on which Plaintiff was ultimately
16 successful, is more in line with the directives and policy goals of WLAD, where
17 Washington courts allow “liberal recovery of costs by the prevailing party in civil rights
18 litigation, in order to further the policies underlying these civil rights statutes.” Blair v.
19 Wash. St. Univ., 740 P.2d 1379, 1387 (Wash. 1987).
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Accordingly, Plaintiff is entitled to fees and costs associated with the second trial.

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B. The Court Grants In Part Plaintiff’s Requested Fees

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In Washington, courts use the lodestar method to determine a reasonable attorney

23 fee award. Mahler v. Szucs, 135 Wash.2d 398, 957 P.2d 632, 650–51 (1998). The Court
24 must determine a lodestar by multiplying a reasonable hourly rate or rates by the number
25 of hours reasonably expended in the litigation. Id. at 651. The party seeking fees bears
26 the burden of proof. Id.
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1. Reasonable Rate

ORDER- 5

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Determining a reasonable hourly rate requires the Court to consider the attorney's

2 usual fee, the attorney's level of skill and experience, the amount of the recovery, and the
3 “undesirability of the case.” Bowers v. Transamerica Title Ins. Co., 100 Wash.2d 581,
4 675 P.2d 193, 203 (1983). The Court can also consider the customary hourly rates in the
5 local area, the effect of the case on the attorney's availability for other work, whether the
6 case is particularly complex or difficult, and a host of other factors. Mahler, 957 P.2d at
7 651 n. 20. The presumptive reasonable hourly rate for an attorney is the rate the attorney
8 charges. Broyles v. Thurston Cty., 195 P.3d 985, 1004 (Wash. Ct. App. 2008). The
9 applicable geographic area for determining a reasonable hourly rate for Plaintiffs' counsel
10 is the entire Puget Sound region. Id. The Court may also rely on its own knowledge and
11 experience regarding fees charged in the area in which it presides. Ingram v. Oroudjian,
12 647 F.3d 925, 928 (9th Cir. 2011).
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According to the evidence provided in support of Plaintiff’s Second Fee Petition,

14 Plaintiff is requesting 1350.8 hours of work from August 2, 2012 to the present at hourly
15 rates of $90 to $465 by fourteen different timekeepers, as follows (Dkt. # 272 at 2; Dkt. #
16 272-1 at 2):
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ORDER- 6

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Timekeeper

Title

Hourly Rate

Hours Worked

Mark Davis

Partner

$285

4.3

Yonten Dorjee

Legal Assistant

$90

3.2

Alexandra Evans

Law Clerk

$150

8.3

Aubrie Hicks

Associate

$210

124.4

Jacob Humphreys Associate

$245

491.9

Rachel Lewis

Law Clerk

$150

82.8

Christina Limon

Paralegal

$125

35.4

Donald Mullins

Partner

$465

328.4

Stefanie Palmer

Paralegal

$125

100.4

Ben Stephens

Legal Assistant

$90

16.6

Mark Trivett

Associate

$265

40.3

Collin Troy

Contract Attorney

$210

10.5

Eleanor Walstad

Associate

$230

93.7

Raam Wong

Law Clerk

$125

10.6

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Plaintiff’s attorney submits in a declaration that these rates are the “same billing
rates charged to [Plaintiff’s attorneys’] hourly clients.” Dkt. # 272 at p. 3, ¶ 6. Plaintiff
also submits a Declaration of Kathleen Phair Barnard, a partner in the Seattle,

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ORDER- 7

1 Washington employment law firm of Schwerin Campbell Barnard Iglitzin & Lavitt LLP.
2 Dkt. # 273. Barnard states that she has familiarized herself with this matter and, in her
3 opinion, the requested hourly rates are reasonable and in some cases slightly below the
4 current market rate. Dkt. # 273 at 6-7. Barnard also claims that the hours expended were
5 reasonable and Plaintiff’s counsel are deserving of a Lodestar multiplier. Id. at 8-12.
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In its Opposition, UPS does not appear to directly dispute the reasonableness of

7 the rates. Instead, UPS contests that the Court should disregard the Barnard Declaration
8 under Federal Rule of Evidence 702 because it is not based on sufficient facts or reliable
9 principles. Dkt. # 275 at 13-14. The Court agrees with UPS, to some extent, that the
10 Barnard Declaration is unnecessary and unhelpful. The portions of the Barnard
11 declaration that concern the reasonableness of expended hours and the appropriateness of
12 a fee multiplier are legal determinations for this Court, and Barnard’s Declaration does
13 not offer any particularly insightful observations on these points. However, the Court
14 need not rely on these portions to make the determination that the rates are reasonable. 1
15 The Court observes that, based on this Court’s experience, Plaintiffs counsel’s rates are
16 consistent with the rates charged by other lawyers in the Puget Sound area and approved
17 by this Court. See, e.g., Nat'l Prod., Inc. v. Aqua Box Prod., LLC, No. 12-605-RSM,
18 2013 WL 12106900, at *2 (W.D. Wash. Mar. 15, 2013) ($465-485/partner, $20519 300/associates, $120/paralegal). The Court of Appeals also determined that many of
20 these claimed rates were reasonable. See Dkt. # 280 at 6-9 ($465/partner, $21021 300/associate, $210/contract attorney, $150/law clerk, $150/paralegal, $110/legal
22 assistant).
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The Court finds the Barnard Declaration minimally helpful in that it cites other fee

26 awards in the region to justify the reasonableness of the rates, though these cases could have
easily been cited by Plaintiff’s counsel in the Second Fee Petition itself. See Dkt. # 273 at 6-8

27 (citing cases).

ORDER- 8

1

Accordingly, the Court finds all of the hourly rates that counsel claimed to be

2 reasonable. In reaching that determination, the Court relies on declarations that the rates
3 identified are the normal hourly rates, UPS’ lack of opposition to the reasonableness of
4 the rates, and on its familiarity with legal fees in the Western District of Washington.
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2. Reasonable Expended Hours

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Proof of an appropriate lodestar begins with reasonable documentation of the work

7 the attorney performed. That documentation “need not be exhaustive or in minute detail,
8 but must inform the court, in addition to the number of hours worked, of the type of work
9 performed and the category of attorney who performed the work (i.e. senior partner,
10 associate, etc.).” Bowers, 675 P.2d at 203. In determining if the attorney “reasonably
11 expended” the hours she claims, the court should “discount hours spent on unsuccessful
12 claims, duplicated effort, or otherwise unproductive time.” Id.
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In connection with Plaintiff’s Second Fee Petition, Plaintiff requests $368,753.50

14 in attorneys’ fees and $12,588.41 in costs. Dkt. # 271 at 10. Plaintiff also requests that
15 the Court apply a multiplier of 2.0 to the lodestar. Id. at 11-12. Plaintiff contends that
16 the requested hours are reasonable because the action was complex, aggressively
17 litigated, and thoroughly briefed, and the counsel for UPS were skilled and highly
18 regarded. Id.
19

UPS does not contest a large portion of Plaintiff’s time entries, and the Court

20 agrees that the uncontested entries largely appear reasonable. UPS has objected to certain
21 time entries, namely (1) entries related to analysis of a malpractice claim against
22 Matson’s previous attorney; (2) entries related to fees and costs associated with Dr. Cathy
23 Brown; (3) entries related to Plaintiff’s appeal; (4) entries reflecting “clerical time”; (5)
24 entries reflecting “vague, wasteful, or duplicative work; and (6) entries reflecting “block
25 billing.” Dkt. # 275 at 4-10.
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ORDER- 9

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The Court believes that some of UPS’ objections have merit, and certain

2 reductions in requested fees are warranted. The Court discusses each objection and
3 reduction below.
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a. Malpractice Claim

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UPS contends that Plaintiff seeks to recover $8,063.50 for time Plaintiff’s counsel

6 spent considering a malpractice claim against Plaintiff’s previous attorneys, which UPS
7 claims is unrelated to the present claim. Dkt. # 275 at 7. Plaintiff does not address UPS’
8 argument on this point, and the Court agrees with UPS. Entries related to analyzing a
9 possible malpractice claim do not relate to the pursuit of Plaintiff’s successful hostile
10 work environment claim. See Conti v. Corp. Servs. Grp., Inc., 30 F. Supp. 3d 1051,
11 1078–79 (W.D. Wash. 2014), aff'd, 690 F. App'x 473 (9th Cir. 2017) (“The court's task is
12 to make a reasonable estimate of how much time counsel expended in the pursuit of
13 successful claims”). Although it is not clear that all of the entries UPS identifies wholly
14 relate to the malpractice claim, Plaintiff does not dispute UPS’ classifications of these
15 entries, and has not provided sufficient detail in the entries to indicate that they were not
16 related to the malpractice claim. Dkt. # 276 at 12, 21-22.
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Accordingly, the Court disallows these entries and reduces Plaintiff’s award by

18 $8,063.50.
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b. Dr. Cathy Brown

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UPS argues that Plaintiff should not be entitled to collect $6,009.50 and $149.50

21 in costs related to Dr. Cathy Brown, a witness that did not testify at the second trial and
22 did not appear in related filings. Dkt. # 275 at 7. 2 Plaintiff does not respond to or contest
23 UPS’ argument on this point. The “mere fact that a witness did not testify does not
24 render time spent with such a witness unreasonable.” Atwood v. PCC Structurals, Inc.,
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Plaintiff apparently subpoenaed Dr. Brown for trial, but then later withdrew that

27 subpoena. Dkt. # 178.

ORDER- 10

1 No. 3:14-CV-00021-HZ, 2016 WL 2944757, at *4 (D. Or. Apr. 1, 2016). Still, it is
2 Plaintiff’s burden to show how these costs were reasonably born in connection with
3 litigating her successful work environment claim, and the Court cannot conclude from the
4 evidence provided that the fees and costs associated with Dr. Cathy Brown qualify.
5

Accordingly, the Court will reduce certain entries and costs from Plaintiff’s

6 requested time that are associated with Dr. Cathy Brown. However, the Court does not
7 agree that all of the entries UPS identified as relating to Dr. Brown relate only or even
8 mostly to Dr. Brown, as some appear to partially relate to other legitimate tasks. See Dkt.
9 # 276 at 13-16 (Slip # 223799, $1,999.50; Slip # 224083, $604.50; Slip # 224760,
10 $2,418.00). Recognizing that the determination of attorneys’ fees is an inherently
11 imprecise exercise, the Court concludes that a reduction of 50% is warranted for these
12 three entries. Moreover, the other entries UPS identifies as relating to Dr. Brown will
13 already be disallowed by this Court for relating to clerical work, and the Court will not
14 permit a double reduction for these entries. Id.
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After careful review of all of UPS’ challenged entries, the Court thus finds a

16 reduction of $2,511 in fees and $149.50 in costs is warranted for work related to Dr.
17 Brown.
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c. Appeal

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UPS argues that Plaintiff should not be entitled to recover fees with this Court

20 related to Plaintiff’s appeal before the Ninth Circuit. Dkt. # 275 at 8. UPS contends that
21 Plaintiff “already requested fees from the Ninth Circuit for her appellate work and
22 attempting to recover time spent on her appeal from this Court is improper and risks
23 duplicative recovery.” Id. Plaintiff responds by arguing that what UPS identified as
24 “appeal fees” were really fees “incurred researching and preserving grounds for appeal
25 and requesting Fed. R. Civ. P. 54(b) certification and exploration of an interlocutory
26 appeal.” Dkt. # 278 at 5. Plaintiff contends that it does not seek duplicate fees through
27 this petition. Id.

ORDER- 11

1

The Court agrees with Plaintiff. The entries UPS identifies as relating to the

2 appeal all appear to concern Plaintiff’s counsel’s preparation for and research of the
3 impending appeal, not fees and costs incurred through the appeal itself. Dkt. # 276 at 10,
4 28. These fees are reasonably related to Plaintiff’s ultimate success in litigation before
5 this Court. UPS warns of duplication with the Ninth Circuit fee petition, but does not
6 identify any such duplicative entries. The Court has reviewed the time entries Plaintiff
7 requested as part of its fee petition before the Ninth Circuit, and found no entries that
8 were also requested as part of the present Second Fee Petition. Compare Dkt. # 276 with
9 Matson v. United Parcel Service, Inc., Case. No. 13-36174 (9th Cir. 2017) at Dkt. # 51-3.
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Accordingly, the Court will not permit a reduction on this basis.

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d. Clerical Work

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UPS objects to 134.30 hours (totaling $16,094.50), billed by paralegals and

13 assistants, of what it claims is “clerical time” that was “not legal in nature.” Dkt. # 275 at
14 8. Plaintiff counters that some of the entries reflect “core attorney work,” and that
15 Plaintiff should not be punished for efficient use of support staff. Dkt. # 278 at 5. The
16 Court finds that UPS’ objection has partial merit.
17

A court can award fees where a paralegal performs legal (as opposed to clerical)

18 work, does so under the supervision of an attorney, and is qualified “to perform
19 substantive legal work.” Absher Constr. Co. v. Kent Sch. Dist., 79 Wash.App. 841, 917
20 P.2d 1086, 1088 (1995). However, paralegals and other assistants are not entitled to
21 compensation for nonlegal work. Id. at 1089 (denying compensation for time spent
22 preparing pleadings, preparing copies, and similar tasks; granting compensation for “time
23 spent preparing the briefs and related work”); see also N. Coast Elec. Co. v. Selig, 136
24 Wash. App. 636, 645, 151 P.3d 211, 216 (2007) (compensation for clerical work like
25 preparing pleadings for duplication, preparing and delivering copies, requesting copies,
26 and obtaining and delivering a docket sheet is not within the realm of reasonable attorney
27 fees).

ORDER- 12

1

Although Plaintiff contends that the time entries at issue were for legal rather than

2 clerical work, a review of the time records confirms that much of the challenged work
3 was clerical in nature. For instance, many of the claimed entries reflect clerical work such
4 as scheduling, downloading, mail delivery, cite-checking, dictation, searching records
5 and e-mails, preparation and review of transcripts, communicating with attorneys,
6 printing notebooks, formatting, and typing up attorneys’ questions. See generally Dkt. #
7 276. Plaintiff’s counsel also claims hours worked by two legal assistants, both billed out
8 at $90 an hour. The work performed by these two individuals, while necessary and by all
9 accounts highly competent, does not appear to be compensable legal work.
10

However, Plaintiff is correct that some time entries from the paralegals indicate

11 that the paralegals were performing core legal work under the supervision of attorneys.
12 See, e.g., Slip Nos. 0220814 (“Review CR 7(h). Conference with E. Walstad and J.
13 Humphreys. Draft Proposed order”); 224194 (“Edit first 15 pages of client trial
14 testimony. Draft trial subpoenas for L. Mizumoto and B. McKinney.”); 229522
15 (“Research and locate requested case for D. Mullins.”). These entries are more akin to
16 recoverable legal work.
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Accordingly, after a thorough review of Plaintiff’s requested time entries and

18 UPS’ objections, the Court concludes that UPS is entitled to a reduction of $15,144.50 in
19 the requested fees due to the clerical nature of the work.
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e. Vague, Wasteful, or Duplicative Work

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UPS argues that Plaintiff’s entries are “replete” with “vague or overly generic time

22 entries,” making it difficult to determine their reasonableness. Dkt. # 275 at 8-9. UPS
23 argues that $27,611.50 in fees should be excluded on this basis. Id. Plaintiff counters
24 that entries that are seemingly “vague” gain the appropriate context when read in
25 conjunction with other entries that are close in time. Dkt. # 278 at 4.
26

The Court agrees with Plaintiff. Plaintiff’s counsel were not required to record in

27 minute detail how each minute of time was expended, and Plaintiff’s burden was satisfied

ORDER- 13

1 by listing the hours and identifying the general subject matter of the time expenditures.
2 Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000). Plaintiff has largely
3 accomplished this for nearly all entries UPS labels as “vague.” Moreover, in some
4 instances where Plaintiff has added more detail, UPS criticizes these entries as “block
5 billing.” See, e.g., Dkt. # 272-1 at 20 (Slip No. 224886). The Court is disinclined to
6 grant either objection. 3
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UPS also complains generally that Plaintiff overstaffed this litigation with fourteen

8 different timekeepers. Dkt. # 275 at 4. This Court does not agree. The second trial and
9 post-trial practice in this case spanned multiple years; during this time, multiple
10 individuals rotated in and out of case, and in some instances left the firm. Dkt. # 272 at
11 2-6. Moreover, as Plaintiff notes, much of the time entries are constrained to a limited
12 number of timekeepers, with discrete tasks outsourced. This scenario does not strike the
13 Court as abnormal.
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Accordingly, the Court will not grant a reduction on this basis.

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f. Block Billing

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UPS requests a global 20% reduction for what it identifies as “block billing.” Dkt.

17 # 275 at 8. UPS, however, fails to show how the few alleged instances of “block billing”
18 inflated Plaintiff’s requested hours to any significant degree. While the Ninth Circuit has
19 endorsed a district court's reduction of block billing, see, e.g., Welch v. Metro Life Ins.
20 Co., 480 F.3d 942, 948 (9th Cir. 2007), this Court finds that Plaintiff's counsel's entries
21 “cover relatively limited amounts of time and give sufficient information for the Court to
22 assess the nature of the work done.” See McEuen v. Riverview Bancorp, Inc., 2014 WL
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The Court notes one exception, Slip No. 224760, where the entry reflects that Plaintiff’s

26 counsel worked in part on issues related to Dr. Brown. As stated above, because Plaintiff’s
counsel does not delineate how much time in this block was devoted to this issue, the Court

27 reduced this entry by 50%.

ORDER- 14

1 2197851 at *6 (W.D. Wash. May 27, 2014). The Court will not reduce the number of
2 hours for alleged “block billing.”
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3. Fee Multiplier

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As part of the Second Fee Petition, Plaintiff asks that the Court exercise its

5 discretion to apply a 2.0 multiplier to the lodestar amount to account for the contingent
6 and risky nature of success, quality of opponent, complexity of legal issues, and the
7 quality of the work performed. Dkt. # 271 at 11-12. UPS opposes, arguing that Plaintiff
8 has not demonstrated that this is an “exceptional” case deserving of a multiplier. Dkt. #
9 275 at 10-11. The Court agrees with UPS.
10

There is a “strong presumption” that the lodestar figure represents the reasonable

11 fee award. City of Burlington v. Dague, 505 U.S. 557, 562 (1992); 224 Westlake, LLC v.
12 Engstrom Prop., LLC, 281 P.3d 693, 713 (Wash. Ct. App. 2012). In an appropriate case,
13 the court can grant an upward or downward adjustment to the lodestar amount to account
14 for factors that are not part of the calculation of reasonable rates or hours expended. Van
15 Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1046 (9th Cir. 2000); Bowers, 675
16 P.2d at 204. A multiplier thus applies in exceptional circumstances that the lodestar
17 calculation does not adequately reflect. Conti v. Corp. Servs. Grp., Inc., 30 F. Supp. 3d
18 1051, 1083 (W.D. Wash. 2014), aff'd, 690 F. App'x 473 (9th Cir. 2017). The Court has
19 “broad discretion in awarding a contingency multiplier.” Stewart v. Snohomish Cty. Pub.
20 Util. Dist. No. 1, No. C16-0020-JCC, 2017 WL 4538956, at *3 (W.D. Wash. Oct. 11,
21 2017) (quoting Hotchkiss v. CSK Auto, Inc., 949 F. Supp. 2d 1040, 1046 (E.D. Wash.
22 2013)). Lodestar adjustments, under Washington law, are considered “rare.” Mahler v.
23 Szucs, 135 Wash.2d 398, 957 P.2d 632, 651 (1998).
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The Court finds it instructive to observe that Plaintiff also requested a multiplier of

25 2.0 in its fee petition before the Ninth Circuit. Matson v. United Parcel Service, Inc.,
26 Case. No. 13-36174, Dkt. # 47-1, pp. 11-13. In denying Plaintiff’s request, the Ninth
27

ORDER- 15

1 Circuit observed that the circumstances of this litigation was not deserving of exceptional
2 treatment:
The § 301 preemption question here arises fairly frequently, and it was not novel.
3
See Matson, 840 F.3d at 1128, 1136. The risk in this case was generic and
unexceptional, and the lodestar amount adequately accounts for it. See Pham, 151
4
P.3d at 542. The fee agreement provided that Matson’s attorneys receive 40
5
percent ($200,000) of the $500,000 jury verdict, rather than their standard 30
percent for contingency fee cases. Even if fees for the fee litigation are excluded,
6
the lodestar amount is comparable to the amount that Matson’s attorneys agreed
7
would account for their risk, and Matson might be awarded additional fees and
costs in the district court.
8
Dkt. # 280 at 32.
9
This Courts agrees with the Ninth Circuit’s assessment. Plaintiff’s justifications
10
for a 2.0 multiplier here are almost identical to those rejected by the Ninth Circuit. The
11
facts of this case simply do not represent the type of “rare” and “‘exceptional’
12
circumstances” when the lodestar figure does not adequately represent counsel’s
13
“superior performance and commitment of resources.” Kelly v. Wengler, 822 F.3d 1085,
14
1102 (9th Cir. 2016) (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554
15
(2010)); Sanders v. State, 240 P.3d 120, 142 (Wash. 2010). Counsel’s performance in
16
this case, while competent, does not justify a multiplier.
17
As for the contingent nature factor, although Plaintiffs' counsel took this lawsuit
18
on a contingency basis, they have not demonstrated how the case was particularly high
19
risk, or how the risk was not already reflected in the hourly rates or the contingency fee
20
award. A court should only award a contingency multiplier when “the lodestar figure
21
does not adequately account for the high risk nature of the case.” Pham, 151 P.3d at 983.
22
The Court, therefore, will not make any upward adjustment of the lodestar figure.
23
In total, the Court will permit Plaintiffs to recover a total of $343.034.50 in fees. This
24
figure reflects Plaintiff’s claimed $368,753.50 in fees, less the fees associated with
25
malpractice claims ($8,063.50), the fees associated with Dr. Brown ($2,511), and the fees
26
reflecting clerical work ($15,144.50).
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ORDER- 16

1

4. Fees From First Petition and Fees on Reply

2

As mentioned above, this Court had previously terminated Plaintiff’s First Fee

3 Petition. Nevertheless, Plaintiff requests, in a footnote, that the Court now decide this
4 First Fee Petition on the merits. Dkt. # 271 at 2, n.2. Arguments raised only in footnotes,
5 or only on reply, are generally deemed waived. Estate of Saunders v. C.I.R., 745 F.3d
6 953, 962 (9th Cir. 2014); City of Emeryville v. Robinson, 621 F.3d 1251, 1262 n.10 (9th
7 Cir. 2010); Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam). As this
8 Court has made clear, “the practice of putting substantive material in footnotes provides
9 difficult reading for the Court and is used by the parties to avoid the page limitations in
10 the local rules. It is also poor advocacy: a request in a footnote is much more likely to be
11 overlooked or missed by the Court. If an argument is worth making, a party should put
12 the argument in the body of its brief.” Bach v. Forever Living Prod. U.S., Inc., 473 F.
13 Supp. 2d 1127, 1131–32 (W.D. Wash. 2007). The Court will not consider this footnoted
14 motion-within-a-motion at this juncture. Should Plaintiff wish the Court to reconsider its
15 prior rulings or seek additional fees, it should do so properly under the Federal Rules of
16 Civil Procedure and the Local Rules of this Court.
17

Plaintiff also attaches to her Reply a Declaration of Donald H. Mullins (“Reply

18 Declaration”) that lists additional fees and costs totaling over $30,000. Dkt. # 279.
19 However, Plaintiff only refers to this Reply Declaration in a footnote, and never actually
20 requests that the Court award these fees and costs. Dkt. # 278 at 6, n. 14. Moreover, a
21 majority of these newly-listed fees predate the filing of Plaintiff’s Second Fee Petition
22 (December 11, 2017) and should have been included in the initial filing. See Dkt. # 279
23 at 5-8. By not including these entries in the Second Fee Petition itself, Plaintiff deprived
24 UPS of the opportunity to object to them, for no apparent reason other than neglect.
25 While UPS could have requested leave to file a surreply, the Court will not punish UPS
26 for abstaining from upsetting the briefing schedule. Accordingly, for the purposes of the
27

ORDER- 17

1 Second Fee Petition, the Court will not award the fees and costs identified in the Reply
2 Declaration at Dkt. # 279.
3

C. The Court Grants in Part Plaintiff’s Request For Costs

4

Plaintiff argues that she is entitled to recover a total of $12,588.41 in costs, which

5 reflect $5,581.64 in electronic research, $211.1 for legal messengers and couriers,
6 $203.77 for lunch and parking during the second jury trial, and $6,592 in expert witness
7 fees associated with the Barnard Declaration. Dkt. # 271 at 10-11; Dkt. # 272-2. UPS
8 largely does not contest these costs, except to argue that the Barnard Declaration should
9 be stricken and Plaintiff should not be entitled to recover these costs. Dkt. # 275 at 14.
10

The Court agrees with UPS that the Barnard expert fees should not be recoverable.

11 The Barnard Declaration did not offer much specialized insight, and the bulk of the utility
12 came from citing to other publicly-available cases. Moreover, UPS is right to observe
13 that the Barnard Declaration is “strikingly similar” to the declaration submitted by
14 Barnard for the Ninth Circuit fee petition, to the point where large portions have been
15 lifted word-for-word, without changes. Compare Dkt. # 273 with Dkt. # 276 at 33-44.
16 The Court concludes that Plaintiff is not entitled to recovers these costs as the current
17 Barnard Declaration is duplicative, unnecessary, and largely unhelpful. The Court will
18 not permit Plaintiff to recover the $6,592 in expert fees.
19

Plaintiff also requests the return of $4,121.94 in taxable costs that Plaintiff paid to

20 UPS after the second trial. Dkt. # 271 at 10-11. UPS does not object to this request.
21 Accordingly, the Court will permit the recovery of these costs.
22

Accordingly, the Court will permit Plaintiffs to recover a total of $9,968.85 in

23 costs. This figure reflects Plaintiff’s claimed $12,588.41 in claimed costs, plus $4,121.94
24 in costs paid to UPS after the second trial, less the Barnard expert fees ($6,592) and the
25 costs associated with Dr. Brown ($149.50).
26
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ORDER- 18

1

III.

2

Accordingly, for the reasons stated above, the Court GRANTS IN PART

CONCLUSION

3 Plaintiff’s Second Fee Petition. The Court awards Plaintiff $343.034.50 in attorney fees
4 and $9,968.85 in costs.
5
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7

Dated this 26th day of July, 2018.

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9

A

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The Honorable Richard A. Jones
United States District Judge

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ORDER- 19