Clark v. Golden Specialty

Filing 166

ORDER granting in part and denying in part plaintiff's 147 Motion for Attorney Fees by Judge Thomas S. Zilly.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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PAUL CLARK,
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Plaintiff,
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C14-1412 TSZ

v.
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GOLDEN SPECIALTY, INC., AND
SCOTT SWIGGARD,
Defendants.

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ORDER

THIS MATTER comes before the Court on plaintiff’s motion for attorney’s fees,

13 docket no. 147. Having reviewed the motion and related filings, the Court enters the
14 following Order.
15 Background
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Plaintiff filed this action against his former employers, Golden Specialty, Inc.

17 (“Golden Specialty”) and Scott Swiggard, alleging claims for unpaid overtime wages
18 under the Fair Labor Standards Act (“FLSA”) and Washington Minimum Wage Act
19 (“MWA”), for retaliatory discharge under the FLSA, for breach of contract, for tortious
20 interference with contractual relations and with business expectancies, for defamation,
21 and for wrongful discharge in violation of public policy. See Second Amended
22 Complaint, docket no. 53. On September 27, 2016, the Court dismissed plaintiff’s claim
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ORDER - 1

1 for tortious interference with business expectancies on summary judgment. See Minute
2 Order, docket no. 92. On October 29, 2016, the Saturday before trial, plaintiff moved to
3 dismiss all of his remaining claims but two: retaliatory discharge under the FLSA and
4 wrongful discharge in violation of public policy. Motion to Dismiss, docket no. 119. On
5 the first morning of trial, October 31, 2016, the Court granted plaintiff’s motion for
6 voluntary dismissal. See Minute Entry, docket no. 125. On November 7, 2016, the jury
7 returned its verdict, docket no. 136, finding in favor of defendants on plaintiff’s claim for
8 wrongful discharge in violation of public policy, but in favor of plaintiff on his claim for
9 FLSA retaliation. The jury awarded plaintiff $108,100 in lost wages and $3,335 for
10 emotional distress, and assessed punitive damage awards of $60,000 against Golden
11 Specialty and $15,000 against Scott Swiggard. Plaintiff now moves for attorney’s fees
12 pursuant to 29 U.S.C. § 216(b).
13 Discussion
The FLSA authorizes an award of reasonable attorney’s fees to a prevailing

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15 plaintiff in anti-retaliation suits. Avila v. Los Angeles Police Dept., 758 F.3d 1096, 1104
16 (9th Cir. 2014) (citing 29 U.S.C. § 216(b)). Plaintiff seeks $51,360.00 in fees for 85.6
17 hours of time billed by Thad Guyer at a rate of $600 per hour, and $89,257.50 in fees for
18 198.35 hours of time billed by Stephani Ayers at a rate of $450.1 See Second
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There appears to have been a mathematical error in plaintiff’s calculation of his attorney’s fees, though

21 the source of that error is unclear. Plaintiff’s spreadsheet calculates a fee total of $140,237.80. See

Second Supplemental Decl. of Stephanie Ayers, Ex. A-2, docket no. 164-1 at 14. But when the number

22 of “Hours Claimed” by Mr. Guyer (85.6) and Ms. Ayers (198.35) are multiplied by their respective hourly
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rates, the total fees for both attorneys are $140,617.50. The Court presumes that the raw data provided by
Mr. Guyer and Ms. Ayers is correct. Accordingly, the Court calculates plaintiff’s requested fees based on

ORDER - 2

1 Supplemental Decl. of Stephani Ayers, docket no. 164 at ¶ 3 & Ex. A-2, docket no. 164-1
2 at 13-14. In total, plaintiff’s motion seeks $140,617.50 in attorney’s fees.2 Defendants
3 do not contest plaintiff’s entitlement to attorney’s fees. They challenge only the
4 reasonableness of the fees claimed.
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The first step in determining the amount of a reasonable fee is to calculate the

6 lodestar figure by taking the number of hours reasonably expended on the litigation and
7 multiplying it by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433-34
8 (1983).

Although in most cases the lodestar figure is presumptively a reasonable fee

9 award, the district court may, if circumstances warrant, adjust the lodestar to account for
10 other facts which are not subsumed within it,” including the complexity of the issues, the
11 skill required, and the results obtained. See Camacho v. Bridgeport Financial, 523 F.3d
12 973, 978 (9th Cir. 2008).
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A. Reasonable Hourly Rate
Reasonable attorney’s fees “are to be calculated according to the prevailing market

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15 rates in the relevant community.” See Van Skike v. Director, Office of Workers’
16 Compensation Programs, 557 F.3d 1041, 1046 (9th Cir. 2009) (quoting Blum v. Stenson,
17 465 U.S. 886, 895 (1984)). “Generally, when determining a reasonable hourly rate, the
18 relevant community is the forum in which the district court sits.” Camacho v. Bridgeport
19 Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008). “[T]he burden is on the fee applicant
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the number of “Hours Claimed” by each attorney multiplied by their requested hourly rate, rather than use

21 the total figures provided by counsel which appear to have been calculated improperly.
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Plaintiff has made certain reductions to the hours expended in an attempt to reflect the amount of work

22 that went towards the FLSA retaliation claim that was ultimately successful. See Decl. of Stephani Ayers,
docket no. 146 at ¶ 11.

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ORDER - 3

1 to produce satisfactory evidence . . . that the requested rates are in line with those
2 prevailing in the community for similar services by lawyers of reasonably comparable
3 skill, experience and reputation.” Id. at 980 (quoting Blum, 465 U.S. at 895 n. 11). Rate
4 determinations in other similar cases and affidavits of the plaintiff’s attorneys and other
5 attorneys regarding prevailing fees in the community “are satisfactory evidence of the
6 prevailing market rate.” Id. (quoting United Steelworkers of Am. v. Phelps Dodge Corp.,
7 896 F.2d 403, 407 (9th Cir. 1990)).
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1. Attorney Guyer

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Mr. Guyer has 38 years of civil rights and criminal trial experience and has

10 practiced both nationally and internationally. Guyer Decl., docket no. 145 at ¶ 1. Mr.
11 Guyer requests an hourly rate of $600. In support of this hourly rate, plaintiff submits
12 declarations from Jack Sheridan and Gregory Wolk, Seattle area employment attorneys
13 who opine that Mr. Guyer would command an hourly rate between $500 and $600 an
14 hour in light of his significant experience. Decl. of Thad Guyer, docket no. 145, Exs. 1 &
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Defendants assert that Mr. Guyer’s requested hourly rate is unreasonable in this

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17 district and that a reasonable rate for Mr. Guyer would be $450 per hour. Defendants do
18 not offer any declarations regarding the prevailing rate in this judicial district. Instead,
19 defendants contend, with citation to several cases,3 that attorneys “in the Western District
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Only one of the cases defendants cite was decided in the last two years and that case involved an
attorney with only ten years of practice experience. See Fulton v. Livingston Fin. LLC, No. C15-0574
22 JLR, 2016 WL 3976558, at * 4 (W.D. Wash. July 25, 2016). Accordingly, these cases are poor
comparators and provide very limited support for the conclusion that the Court should reduce Mr. Guyer’s
hourly rate below the range identified in the declarations of Mr. Sheridan and Mr. Wolk. See Charlebois

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ORDER - 4

1 pursuing consumer and employment claims are rarely compensated for hourly rates in
2 excess of $450 for attorneys of Mr. Guyer’s vintage.” Defs.’ Opposition, docket no. 155
3 at 7. It is not the case, however, that Courts in this district have refused to approve rates
4 above $450. See, e.g., Conti v. Corporate Services Group, Inc., 30 F. Supp. 3d 1051,
5 1080 (W.D. Wash. Jul. 10, 2014) (noting, in 2014, that $500 is “near the upper end of the
6 range of rates that experienced employment counsel charge in this District”); Lauer v.
7 Longevity Medical Clinic PLLC, 2016 WL 2595122, at *3 (W.D. Wash. May 4, 2016)
8 (finding a $500 hourly rate reasonable in light of lead counsel’s experience in
9 employment cases). None of the cases defendants cite involved an attorney with Mr.
10 Guyer’s level of trial experience. Mr. Guyer was an exemplary advocate who provided
11 remarkably high quality representation and achieved a well-fought victory for his client.
12 Plaintiff has met his evidentiary burden by producing satisfactory evidence that an hourly
13 rate between $500 and $600 for Mr. Guyer is commensurate with lawyers of reasonably
14 comparable skill, experience, and reputation in the community. This range of rates is in
15 line with the Court’s own knowledge and experience regarding fees charged in this
16 district by similarly skillful litigators with more than 35 years of experience. Defendants
17 have produced no evidence, other than citation to a few cases which offer poor
18 comparisons for Mr. Guyer’s work, to rebut the accuracy or reasonableness of the hours
19 charged or the facts asserted in the declarations submitted by the plaintiff. See Gates v.
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v. Angels Baseball LP, 993 F. Supp. 2d 1109, 1121 (C.D. Cal. 2012) (“While past fee rates may be useful
evidence to show a floor below which a court’s fee calculations should not drop, past fee rates in no way
22 support the conclusion that a court should reduce the fees in the present case to the rates awarded in the
past.”).

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ORDER - 5

1 Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (“The party opposing the fee
2 application has a burden of rebuttal that requires submission of evidence to the district
3 court challenging the accuracy and reasonableness of the hours charged or the facts
4 asserted by the prevailing party in its submitted affidavits.” (citing Blum, 465 U.S. at 892
5 n. 5)). Given the breadth of Mr. Guyer’s experience, the high quality representation he
6 provided, and the dearth of relevant evidence submitted by the defendants in support of
7 their contention that an hourly rate between $500 and $600 for Mr. Guyer is excessive,
8 the Court concludes that an hourly rate of $550 is reasonable. Mr. Guyer was worth
9 every penny.
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2. Attorney Ayers

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Ms. Ayers was second chair at trial and has approximately 13 years of

12 employment litigation experience. See Decl. of Stephani Ayers, docket no. 146 at ¶ 5.
13 Ms. Ayers requests an hourly rate of $450. In support of this hourly rate, plaintiff relies
14 on the declarations of Mr. Sheridan and Mr. Wolk who opine that Ms. Ayers would
15 command an hourly rate between $300 and $500 an hour. Decl. of Thad Guyer, docket
16 no. 145, Ex. 1 at ¶ 8 & Ex. 2 at ¶ 8-9. Defendants argue that Ms. Ayers’s requested
17 hourly rate of $450 is excessive for an attorney of her vintage and that a reasonable rate
18 for Ms. Ayers would be $300 per hour. Having reviewed recent fee awards in this
19 district, the Court concludes that an hourly rate of $350 for Ms. Ayers is commensurate
20 with lawyers of reasonably comparable skill, experience, and reputation in the
21 community. See, e.g., Fulton, 2016 WL 3976558 at * 4 (Reasonable rate for attorney in
22 an FDCPA action with approximately ten years of experience was $300); BWP Media
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ORDER - 6

1 USA Inc. v. Rich Kids Clothing Co., LLC, 103 F. Supp. 3d 1242, 1250 (W.D. Wash. May
2 1, 2015) ($350 an hour was a reasonable rate for an attorney with nineteen years of
3 experience in infringement action); Hanson v. County of Kitsap, Wash., No. 13-5388
4 RJB, 2015 WL 3965829, at *4 (W.D. Wash. June 30, 2015) (approving a $400 hourly
5 rate for an attorney with over 20 years of experience and a $350 hourly rate for the two
6 other attorneys with less experience who worked on the case). This billing rate is in line
7 with the Court’s knowledge and experience regarding the fees charged in this district by
8 attorneys with Ms. Ayers’s background.
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B. Hours Reasonably Expended
“By and large, the court should defer to the winning lawyer’s professional

11 judgment as to how much time he was required to spend on the case; after all, he won,
12 and might not have, had he been more of a slacker.” Moreno v. City of Sacramento, 534
13 F.3d 1106, 1112 (9th Cir. 2008). In determining the appropriate number of hours to be
14 included in the lodestar calculation, a district court should, however, exclude hours “that
15 are excessive, redundant, or otherwise unnecessary.” McCown v. City of Fontana, 565
16 F.3d 1097, 1102 (9th Cir. 2008). Plaintiff requests fees for 85.6 hours expended by
17 Mr. Guyer and 198.35 hours expended by Ms. Ayers.
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Defendants make two specific objections to the hours expended by plaintiff’s

19 attorneys. Defendants first argue that the Court should not award fees for the 9.05 hours
20 expended prior to the filing of plaintiff’s complaint because the time entries for this work
21 are too nonspecific to determine whether they were related to the sole claim on which
22 plaintiff prevailed. The majority of these hours, however, are claimed in a time entry that
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ORDER - 7

1 contains a description of work clearly indicating that the hours were related to plaintiff’s
2 FLSA retaliation claim. See Supplemental Decl. of Stephani Ayers, Ex. A, docket no.
3 148-1 at 2 (recording 7.5 hours for “Research FLSA case law, FLSA retaliation claims,
4 review client documents for filing complaint.”). As plaintiff points out, the remaining
5 1.55 hours of pre-filing work were spent on litigation planning and coordination
6 activities, such as workload and representation arrangements, which would have been
7 required even if plaintiff had never asserted its unsuccessful claims. All of these hours
8 were reasonably expended on the litigation and are therefore compensable under the
9 rationale of Hensley. See Webb v. Board of Educ. Of Dyer County, Tenn., 471 U.S. 234,
10 243 (1985); see also ATL, Inc. v. City of Seattle, No. C09-1240 RSL, 2012 WL 1949044,
11 at *2 (W.D. Wash. May 29, 2012) (pre-suit work is compensable where that work was
12 “both useful and of a type ordinarily necessary to advance the . . . litigation”).
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Defendants also argue that the Court should exclude 7.5 hours of time Mr. Guyer

14 expended preparing the declarations of Mr. Sheridan and Mr. Wolk. This argument
15 misinterprets the relevant billing entry, which states “Draft declarations for Wolk and
16 Sheridan, motion, consult with local attorneys re reasonable rates.” Second Supplemental
17 Ayers Decl., Ex. A-2, docket no. 164-1 at 13. The 7.5 hours listed in this time entry is
18 the total sum of hours claimed by Mr. Guyer for researching and drafting the motion for
19 attorney’s fees, drafting the declarations of Mr. Sheridan and Mr. Wolk, and consulting
20 with local attorneys regarding reasonable rates in the community. Taking into account all
21 of the activities listed in the relevant billing entry, the number of hours claimed by Mr.
22 Guyer are reasonable.
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ORDER - 8

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C. Lodestar Calculation
The lodestar amount for work performed by plaintiff’s attorneys is $116,502.50,

3 calculated by multiplying the hours awarded to each attorney by the reasonable hourly
4 rate determined above.
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Attorney

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Thad Guyer
Stephani Ayers
TOTAL

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Hours
Requested
85.6
198.35

Hours
Awarded
85.6
198.35

Hourly
Rate
$550
$350

Pre-Adjustment Lodestar
$47,080.00
$69,422.50
$116,502.50

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D. Adjustment to Lodestar
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After the Court determines the lodestar amount, it must then consider whether an
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upward or downward adjustment of the fee is warranted based on factors such as the
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extent of the plaintiff’s success in the litigation. See Hensley, 461 U.S. at 434. A
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plaintiff is not eligible to receive attorney’s fees for time spent on unsuccessful claims
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unrelated to those on which the plaintiff prevailed. See McCown, 565 F.3d at 1103.
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Claims are related where they “involve a common core of facts or [are] based on related
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legal theories” and are unrelated if they are “distinctly different claims for relief that are
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based on different facts and legal theories.” Hensley, 461 U.S. at 434-35. Here, plaintiff
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prevailed only on his claim for FLSA retaliation. Plaintiff’s claims for FLSA retaliation
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and for wrongful discharge in violation of public policy are clearly related because they
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are based on related legal theories—that defendants terminated plaintiff due to his
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engagement in protected activity—and “involve a common core of facts” concerning the
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motivation for plaintiff’s discharge. The remainder of plaintiff’s claims, however, are
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unrelated to the FLSA retaliation claim on which he prevailed.
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ORDER - 9

In addition to plaintiff’s claims for FLSA retaliation and wrongful discharge in

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2 violation of public policy, plaintiff alleged claims for unpaid overtime wages under the
3 MWA and FLSA, breach of contract related to defendants’ failure to provide certain
4 revenue based salary increases, tortious interference with contract and business
5 expectancies which arose after plaintiff’s termination, and defamation. Each of these
6 claims is premised on facts and legal theories unrelated to the motivation for plaintiff’s
7 discharge and are intended to remedy a course of conduct that is entirely distinct from the
8 conduct which gave rise to defendants’ liability for FLSA retaliation.4 These claims are
9 therefore unrelated to plaintiff’s successful FLSA retaliation claim. See Schwarz v.
10 Secretary of Health and Human Services, 73 F.3d 895, 903 (9th Cir. 1995) (claims
11 “intended to remedy a course of conduct entirely distinct and separate from the course of
12 conduct that gave rise to the injury on which the relief granted is premised” are unrelated
13 under Hensley).
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Once a district court concludes that a plaintiff has pursued unsuccessful claims

15 that are unrelated to the successful claim, its task is to exclude from the calculation of a
16 reasonable fee all hours spent litigating the unsuccessful claims. Schwarz, 73 F.3d at
17 904. In excluding such hours from the fee calculation, the district court “may attempt to
18 identify specific hours that should be eliminated, or it may simply reduce the award to
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Indeed, to prevail on his FLSA retaliation claim, plaintiff was not required to prove that he was entitled
to overtime wages that remained unpaid, that defendants breached plaintiff’s employment contract by
21 failing to provide certain salary increases, that defendants intentionally interfered with plaintiff’s
contractual relations or business expectancies for an improper purpose, or that defendants made certain
statements that were provably false; he only needed to show that he complained about not being paid
22 overtime wages (regardless of whether he was entitled to those wages and whether the wages were
unpaid) and that his complaints were a motivating factor in his termination.

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ORDER - 10

1 account for the limited success.” Id. The district court necessarily has discretion in
2 making this equitable judgment. Id. Because plaintiff’s counsel utilize block billing, it is
3 difficult, if not impossible, for the Court to intelligibly identify and eliminate specific
4 hours expended on the unsuccessful, unrelated claims. Thus, to appropriately account for
5 plaintiff’s limited success, the Court will apply a percentage reduction to the fees
6 claimed.
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Applying such reduction to the total fees incurred, however, would be

8 inappropriate given that all but one of plaintiff’s unsuccessful, unrelated claims were
9 voluntarily dismissed on the first day of trial. The hours claimed by plaintiff’s counsel
10 after the Court granted plaintiff’s motion for voluntary dismissal were expended
11 exclusively in relation to plaintiff’s claims for FLSA retaliation and wrongful discharge
12 in violation of public policy, and thus are fully compensable. Accordingly, the Court will
13 reduce the fees generated by plaintiff’s attorneys prior to October 31, 2016—the first day
14 of trial—by 40% to reflect plaintiff’s limited success.5
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Mr. Guyer billed 19.85 hours prior to trial, totaling $10,917.50 in fees at a rate of

16 $550 an hour. Ms. Ayers billed 140.8 hours prior to trial, totaling $49,280.00 in fees at a
17 rate of $350. Applying the 40% reduction to plaintiff’s pretrial fees, the fee award for
18 Mr. Guyer is reduced by $4,367.00 and the award for Ms. Ayers is reduced by
19 $19,712.00, resulting in a total fee award of $92,423.50:
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Though plaintiff’s unsuccessful claims represent more than 40% of the total claims alleged, the Court

22 finds that a greater reduction of pretrial fees would be inappropriate. A 40% reduction adequately
accounts for the limited success plaintiff achieved.

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ORDER - 11

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Attorney

Hours
Hourly
Awarded Rate

Lodestar
Adjustment

Total Fees
Awarded

$550

PreAdjustment
Lodestar
$47,080.00

Thad
Guyer
Stephani
Ayers
TOTAL

85.6

($4,367.00)

$42,713.00

198.35

$350

$69,422.50

($19,712.00)

$49,710.50

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$92,423.50

Conclusion
For the foregoing reasons, plaintiff’s motion for attorney’s fees, docket no. 147, is
GRANTED in part and DENIED in part. The Court awards plaintiff reasonable
attorney’s fees in the amount of $92,423.50.

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IT IS SO ORDERED.
Dated this 8th day of February, 2017.

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A

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Thomas S. Zilly
United States District Judge

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