Polonsky v. Cawdrey et al

Filing 14

ORDER granting in part and denying in part plaintiff's 12 Motion for Attorney Fees by Judge Ricardo S Martinez.(RS) Modified on 3/30/2017/cc dfts (RS).

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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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Case No. C16-1896 RSM

ANNA POLONSKY,

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Plaintiff,
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ORDER GRANTING IN PART
PLAINTIFF’S REQUEST FOR FEES AND
COSTS

v.
DAN CAWDREY and LILLIAN CAWDREY,
and all other occupants,
Defendants.

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I.

INTRODUCTION

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This matter initially came before the Court on Plaintiff’s Emergency Motion to Remand
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pursuant to 28 U.S.C. § 1447(c). Dkt. #4. On February 7, 2017, the Court granted Plaintiff’s

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motion, finding that there was no subject matter jurisdiction in this Court. Dkt. #11. In

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addition, the Court granted Plaintiff’s request for attorney’s fees and costs, and directed

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Plaintiff to file a supplemental motion, appending the evidence necessary to support her
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request. Id. Plaintiff has since filed that supplemental motion, to which Defendants have

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objected. Dkts. #12 and #13. Plaintiff asks the Court for a total award of $5,217.61. For the

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reasons discussed below, the Court now GRANTS IN PART AND DENIES IN PART

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Plaintiff’s motion.

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ORDER - 1

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II.

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DISCUSSION

A. Legal Standard
“When it sets a fee, the district court must first determine the presumptive lodestar

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figure by multiplying the number of hours reasonably expended on the litigation by the
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reasonable hourly rate.” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 1993).

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The reasonable hourly rate is determined with reference to the prevailing rates charged by

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attorneys of comparable skill and experience in the relevant community. See Blum v. Stetson,

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465 U.S. 886, 895 (1984). In determining the reasonable number of hours expended on the

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litigation, the Court may exclude any excessive, redundant, or otherwise unnecessary hours
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billed. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court may also adjust the lodestar

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with reference to factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th

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Cir. 1975). The relevant Kerr factors here are: (1) the time and labor required; (2) the novelty

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and difficulty of the questions; and (3) the skill requisite to perform the legal services properly.
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“The lodestar amount presumably reflects the novelty and complexity of the issues, the special

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skill and experience of counsel, the quality of representation, and the results obtained from the

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litigation.” Intel, 6 F.3d at 622.

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B. Reasonableness of Rates

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The Court first examines the hourly rate for time billed by her counsel requested by
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Plaintiff. Plaintiff seeks a billing rate of $245 per hour. Dkt. #12-1 at ¶ 3. “The party seeking

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fees bears the burden of documenting the hours expended in the litigation and must submit

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evidence supporting… the rates claimed.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46

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(9th Cir. 2007) (citing Hensley, 461 U.S. at 433). In the Ninth Circuit, “the determination of a

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ORDER - 2

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reasonable hourly rate ‘is not made by reference to the rates actually charged the prevailing

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party.’” Welch, 480 F.3d at 946 (quoting Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d

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464, 471 (9th Cir. 2000)). “Rather, billing rates should be established by reference to the fees

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that private attorneys of an ability and reputation comparable to that of prevailing counsel

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charge their paying clients for legal work of similar complexity.” Id. (internal quotation
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omitted). “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in

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the community, and rate determinations in other cases, particularly those setting a rate for the

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plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.”

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Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “Generally,

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when determining a reasonable hourly rate, the relevant community is the forum in which the
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district court sits.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008)

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(vacating award of attorneys’ fees in Fair Debt Collection Practices Act case where district

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court failed to identify the relevant community or address the prevailing market rate).

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In this case, Plaintiff has presented neither evidence of her attorney’s experience nor
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evidence supporting the reasonableness of the rate requested for the Seattle market. See Dkt.

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#12-1. A review by this Court of unlawful detainer actions in states in the Ninth Circuit in

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which attorney’s fees were awarded reveals that rates awarded range from $150 (primarily in

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Washington, Idaho and Montana) on the lower end to $350 (primarily in California) on the

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higher end. Defendants have also opposed the hourly rate proposed by Plaintiff, and argue that
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$175 per hour is more appropriate, particularly because they are pro se. Dkt. #13 at 4.

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Given the absence of proper evidence from Plaintiff as to comparable attorney rates in

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the community, and considering Defendants’ arguments and the Court’s own review of

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comparable cases, the Court finds that Plaintiff has failed to meet her burden to establish a

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ORDER - 3

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reasonable hourly rate of $245 per hour, and will therefore calculate the lodestar using the
hourly rate of $200 per hour for her attorney’s time.
C. Reasonableness of Hours

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Now turning to the reasonableness of the hours requested, the Court notes that “[t]he

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party seeking fees bears the burden of documenting the hours expended in the litigation and
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must submit evidence supporting” the request. Hensley, 461 U.S. at 433. As noted above, the

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Court excludes those hours that are not reasonably expended because they are “excessive,

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redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Further, the Ninth Circuit has

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held it is reasonable for a district court to conclude that the party seeking attorney’s fees fails to

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carry its burden of documenting the hours expended when that party engages in “block billing”
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because block billing makes it more difficult to determine how much time was spent on

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particular activities.

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Likewise, intra-office conferences between experienced counsel, absent persuasive justification

Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007).

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by the moving party, may be excluded from an award as unnecessary and duplicative. See id.
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at 949.

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Plaintiff has presented a detailed description of the time spent defending this action.

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Dkt. #12-1. The Court has reviewed her attorney’s billing entries. Id. As an initial matter, the

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Court will not award fees for the time Plaintiff’s counsel spent discussing the case between

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either attorneys in his own or with “outside” counsel, as that activity connstitutes intra-office
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conferences or is analogous to intra-office conferences. Further, counsel has partially engaged

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in block billing time entries, which has left the Court unable to attribute some of the time spent

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on a particular activity. Dkt. #12-1; Welch, 480 F.3d at 948. Accordingly, where the Court

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cannot discern from the time entry itself the amount of time to attribute to a particular activity,

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ORDER - 4

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it will reduce those entries by half. For all of these reasons, the Court will deduct the following
time from its award of attorney’s fees:

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12/13/16

0.875 hours (0.875 x $200/hr = $175.00)

12/13/16

1.15 hours (1.15 x $200/hr = $230.00)

12/27/16

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0.7 hours (0.7 x $200/hr = $140.00)

12/28/16

0.1 hours (0.1 x $200/hr = $100.00)

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Dkt. #12-1.
Likewise, the Court will deduct all time billed that appears to be purely administrative
in nature:

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12/29/16

0.10 hours

1/5/17

0.60 hours

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Dkt. #12-1.
The Court notes that Defendants object to the hours requested by Plaintiff’s counsel on

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the basis that they are excessive, redundant or otherwise unnecessary. Dkt. #13 at 3-4. In
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particular, they complain about the time Plaintiff’s counsel billed for attending a Show Cause

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hearing in State court that was ultimately canceled, and the hours counsel spent preparing the

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motion to remand. Id. In light of the rate reduction already imposed, and the time reductions

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noted above, the Court disagrees with Defendants that the remaining time spent on this case by

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Plaintiff’s counsel was excessive, redundant or otherwise unnecessary. Thus, the Court finds
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that the remaining hours requested by Plaintiff’s counsel are reasonable, and will award the

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fees associated with those hours, again noting that the hourly rate has been reduced to $200 per

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hour. Accordingly, the total amount of attorney’s fees awarded is $1905.00.

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ORDER - 5

D. Lodestar Adjustment

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The Court finds that the time set forth above, less the reductions noted by the Court,

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reflects the reasonable time spent defending this matter and does not find it necessary to make

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any lodestar adjustments.

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E. Costs
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Finally, Plaintiff also seeks $2,559.36 in costs.

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Dkt. #12-1.

These costs include

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mortgage payments on the subject property for the two months that Plaintiff’s motion for

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remand was pending in this Court, plus $30 in postage fees. Id. Defendants object to the

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mortgage payment request, but do not object to an award for postage fees. Dkt. #13.

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The Court declines to award any costs to Plaintiff. As for the costs related to Plaintiff’s
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mortgage payments, the Court notes that Plaintiff, as the home owner, would have incurred

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those costs regardless of whether this matter proceeded in State court or this Court. While the

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Court appreciates that Plaintiff was unable to proceed with any eviction process while this

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matter was pending here, any recovery she seeks from Defendants for their alleged failure to
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pay her rent or vacate the property should be handled in conjunction with her unlawful detainer
action.

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The Court also will not award Plaintiff postage costs. A review of Plaintiff’s counsel’s

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Declaration reveals that Plaintiff is seeking a “combined administrative fee[] and postage

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charged” in the amount of $30.00 for mailing the Motion for Remand and Reply to Defendants.
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Dkt. #12-1 at ¶ 4. Neither of these costs are separately detailed, nor are any of these costs

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contained on the billing records provided by Plaintiff in support of the request. See Dkt. #12-1.

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Accordingly, the Court will not award any costs requested in this matter.

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ORDER - 6

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III.

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CONCLUSION

Having considered Plaintiff’s Supplemental Motion for Fees and Costs, the
Declarations and Exhibits in support thereof, and the Opposition thereto, along with the

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remainder of the record, the Court hereby finds and ORDERS that Plaintiff’s motion (Dkt. #12)
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is GRANTED IN PART AND DENIED IN PART for the reasons discussed above. Plaintiff is
awarded fees in the amount of $1905.00 in fees and $0 in costs.
DATED this 30th day of March 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER - 7