Seattle Times Company v. LeatherCare, Inc.

Filing 336

ORDER striking in part (as to costs and/or litigation expenses), granting in part and denying in part plaintiff Steven Ritt's 321 Motion for Attorney Fees; awarding reasonable attorneys' fees as follows (See Order for details); directing Clerk to enter supplemental judgment consistent with 328 Order. Signed by Judge Thomas S. Zilly.(SWT)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 4 5 SEATTLE TIMES COMPANY, 6 Plaintiff, 7 v. 8 LEATHERCARE, INC.; STEVEN RITT; and the marital community composed of STEVEN RITT and LAURIE ROSENRITT, 9 10 Defendants/Third-Party Plaintiffs, 11 12 C15-1901 TSZ ORDER v. 13 TOUCHSTONE SLU LLC; and TB TS/RELP LLC, 14 Third-Party Defendants. 15 THIS MATTER comes before the Court on a motion for attorneys’ fees, docket 16 17 no. 321, brought by Steven Ritt and the marital community composed of Steven Ritt and 18 Laurie Rosen-Ritt (collectively, “Ritt”). 1 Having reviewed all papers filed in support of, 19 and in opposition to, Ritt’s motion, the Court enters the following order. 20 21 22 1 This motion also seeks recovery of litigation expenses, but Ritt has filed a separate motion to tax costs, docket no. 323, which is pending before the Clerk of the Court. Costs are therefore not addressed in this Order. 23 ORDER - 1 1 Discussion 2 Ritt was the prevailing party with regard to a claim brought by Seattle Times 3 Company (“Seattle Times”) pursuant to Washington’s Model Toxics Control Act 4 (“MTCA”). See Minute Order at ¶ 2(b) (docket no. 313); see also Order (docket 5 no. 270); Judgment (docket no. 271). Under MTCA, the prevailing party in a lawsuit 6 to recoup “remedial action costs” is entitled to recover “reasonable attorneys’ fees and 7 costs.” RCW 70.105D.080. The fee applicant bears the burden of proving the 8 reasonableness of the amount requested. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 151, 9 859 P.2d 1210 (1993). Under Washington law, which governs the determination of 10 reasonable attorneys’ fees in this case, the lodestar method applies. See Brand v. Dep’t of 11 Labor & Indus., 139 Wn.2d 659, 666, 989 P.2d 1111 (1999). 12 The lodestar method involves two steps: first, computing a lodestar amount by 13 multiplying a reasonable hourly rate by the number of hours reasonably expended on the 14 matter; and second, adjusting the lodestar figure either up or down to reflect factors that 15 have not already been taken into account, for example, the contingent nature of success 16 and the quality of the work performed. See id.; see also Bowers v. Transamerica Title 17 Ins. Co., 100 Wn.2d 581, 593-99, 675 P.2d 193 (1983) (quoting Miles v. Sampson, 675 18 F.2d 5, 8 (1st Cir. 1982), and citing Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 19 1980)). The Court is not bound by the lodestar value, but rather, is charged with making 20 “an independent decision” as to what represents a reasonable amount of attorneys’ fees. 21 Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 744, 733 P.2d 208 (1987). With regard 22 23 ORDER - 2 1 to reasonableness, an attorney’s billing records, although relevant, are “in no way 2 dispositive.” Id. 3 Ritt has requested $807,613.00 in attorneys’ fees, arguing that the time spent on 4 defending LeatherCare, Inc. (“LeatherCare”), which was also sued by Seattle Times, and 5 which was represented by the same attorneys as Ritt, cannot be segregated from the 6 efforts devoted to Ritt’s defense. The Court disagrees. The Court will award 100% of 7 the attorneys’ fees associated with (i) the billing entries of Jo M. Flannery and Kristin 8 Nealey Meier 2 that mention Ritt, and (ii) Flannery’s and Meier’s services in successfully 9 opposing the motion filed by Seattle Times in June 2017 seeking summary judgment 10 concerning Ritt’s liability. With regard to the remainder of Flannery’s and Meier’s fees, 11 the Court will use a 10% multiplier of the lodestar amount, which reflects a reasonable 12 apportionment between work performed for Ritt and their representation of LeatherCare. 13 Ritt’s personal liability was not a primary issue in this litigation. Rather, on behalf 14 of both Ritt and LeatherCare, Flannery and Meier focused most of their energy on the 15 unsuccessful argument that recovery under MTCA for excavation-related expenses 16 should be limited to the percentage (allegedly 22%) of soil that had concentrations of 17 18 2 Ritt has asked for attorneys’ fees related to work performed by individuals as to whom no 19 biographical information has been provided. The Court cannot assess whether the hourly rates sought for such lawyers’ services are consistent with the usual rates in the local legal community 20 for comparable work, and the Court therefore declines to award any attorneys’ fees associated with the billings of Kari Brotherton, Madison M. Burke, Madeline S. Davis, Bryan C. Graff, 21 Richard Hyatt, Roger Kindley, Shannon Lawless, Teru Scott Olsen, John Petrie, and Clifton Stratton. The Court made a similar ruling in connection with the motion for attorneys’ fees brought by Touchstone SLU LLC and TB TS/RELP LLC. See Order at 4 (docket no. 328). 22 23 ORDER - 3 1 perchloroethylene (“PCE”) above the “cleanup” level published by Washington’s 2 Department of Ecology (0.05 mg PCE per kg soil). See Order at 105-07 (docket no. 270). 3 They also lobbied to no avail for parties other than Ritt and LeatherCare to be equitably 4 allocated a majority (60% or more) of the responsibility for the remedial action costs at 5 issue. See Trial Br. at 27 (docket no. 131). Ritt is not entitled to attorneys’ fees or 6 litigation expenses, including expert witness fees, incurred to advance theories on which 7 neither Ritt nor LeatherCare prevailed. 8 In concluding that Ritt is entitled to 10% of the lodestar figure for Flannery’s and 9 Meier’s general billings, the Court has considered the declaration of Peter Hsiao, an 10 expert for Seattle Times, who opined that the appropriate amount of reduction for entries 11 encompassing recoverable and non-recoverable time is 85%. See Hsiao Decl. at ¶¶ 6 & 12 20 (docket no. 326). Because the Court has awarded 100% of the fees related to 13 Flannery’s and Meier’s “Ritt” specific work, the Court will allow 10%, rather than 15%, 14 of their remaining billings. The 10% figure also reflects the proportion of the discussion 15 section of the Court’s Order entered August 15, 2018, docket no. 270, that was devoted to 16 analyzing whether Ritt qualified as an “operator” under MTCA (roughly 5.5 of the 56 17 pages). 18 The Court will use the same multiplier (10%) with respect to paralegal billings, 19 which adequately accounts for the segregable nature of the issues on which Ritt 20 prevailed, as well as any work that was clerical, as opposed to legal, in nature. The Court 21 declines to adopt the suggestion of Seattle Times to further reduce the lodestar figure to 22 compensate for block-billing practices. 23 ORDER - 4 1 Flannery has represented that both she and Meier billed at the reduced rate of 2 $300 per hour for this matter. Flannery Decl. at ¶¶ 6 & 7 (docket no. 322). The billing 3 entries submitted in support of the motion for attorneys’ fees, however, show rates for 4 Flannery’s and Meier’s services ranging from $260 to $380 per hour, with the prevalent 5 rates being $300 or $320 per hour. See id. at Ex. B (docket no. 322-2). Seattle Times has 6 not challenged the hourly rates requested for Flannery’s and Meier’s services, and the 7 Court finds that rates ranging from $260 to $380 per hour are reasonable. 8 Flannery has also indicated that paralegals billed at reduced rates in this matter. 9 See id. at ¶ 10. The proffered billing entries reflect rates ranging from $115 to $170 per 10 hour. See id. at Ex. B. Seattle Times contends that all paralegal time should be deducted 11 because biographical information was not provided for any paralegal, but it has not 12 separately argued that the requested rates are unreasonable. The Court concludes that 13 Flannery’s description of the paralegals as having “a minimum of 10 years of experience 14 in the field,” id. at ¶ 10, is sufficient to support the hourly rates at issue, which the Court 15 finds reasonable and consistent with the typical rates in the local legal community for 16 paralegals with equivalent experience. 17 Conclusion 18 For the foregoing reasons, the Court ORDERS as follows: 19 (1) Ritt’s motion for attorneys’ fees, docket no. 321, is STRICKEN in part (as 20 to costs and/or litigation expenses) without prejudice, GRANTED in part, and DENIED 21 in part. 22 23 ORDER - 5 1 (2) 2 Description Requested Awarded 3 Flannery and Meier (“Ritt” specific work) $42,696.00 $42,696.00 $676,658.00 $67,665.80 Paralegal (apportioned 10%) $71,268.00 $7,126.80 5 Other Attorneys $29,293.00 $0.00 6 TOTAL $819,915.00 $117,488.60 7 (3) 4 Ritt is AWARDED reasonable attorneys’ fees as follows: Flannery and Meier (apportioned 10%) The Clerk is DIRECTED to enter supplemental judgment consistent with 8 this Order and the Order entered March 1, 2019, docket no. 328, and to send a copy of 9 this Order and the Supplemental Judgment to all counsel of record. 10 DATED this 17th day of April, 2019. 11 12 A 13 Thomas S. Zilly United States District Judge 14 15 16 17 18 19 20 21 22 23 ORDER - 6

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