Boule v. Egbert et al

Filing 92

ORDER granting in part and denying in part Defendant Egbert's 90 Supplemental Motion for Fees and Costs. Defendant Egbert is awarded attorney's fees in the amount of $10,444.00 and costs in the amount of $63.05, for a total award of $10,507.05. Customs and Border Protection and Immigration and Customs Enforcement SHALL reimburse Agent Egbert and his insurer in this amount, made payable to Mills Meyers Swartling P.S. In Trust for Erik Egbert no later than 30 days from the date of this Order. Signed by Judge Ricardo S Martinez. (PM)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 ROBERT BOULE, Plaintiff, 8 9 10 Case No. C17-0106RSM ORDER GRANTING IN PART DEFENDANT EGBERT’S SUPPLEMENTAL MOTION FOR FEES AND COSTS v. ERIK EGBERT, et al., 11 Defendants. 12 I. 13 14 15 INTRODUCTION This matter comes before the Court on Defendant Egbert’s Supplemental Motion for Fees and Costs. Dkt. #90. This Court previously granted Defendant’s request for the reasonable fees 16 17 and costs he incurred to bring a motion to compel, and the reasonable fees and costs he would 18 incur to take the resumed depositions of Mr. Boule and Agent Olson, from non-parties U.S. 19 Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement 20 (“ICE”). Dkt. #77. The Court directed Defendant to file a supplemental motion setting forth the 21 fees and costs requested, along with the proper support for those fees and costs. Id. Although 22 23 the Court also allowed Plaintiff and the non-parties to respond as to the reasonableness of the 24 fees and costs requested, neither Plaintiff nor the non-party Agencies filed a response. Pursuant 25 to this Court’s Local Civil Rules, “[e]xcept for motions for summary judgment, if a party fails to 26 file papers in opposition to a motion, such failure may be considered by the court as an admission 27 that the motion has merit.” LCR 7(b)(2). The Court deems Plaintiff’s and the Agencies’ failure 28 ORDER PAGE - 1 1 2 to respond to Defendant Egbert’s supplemental motion to be such an admission in this case. For the reasons discussed below, the Court now GRANTS IN PART Defendant’s motion. II. 3 4 DISCUSSION A. Legal Standard 5 “When it sets a fee, the district court must first determine the presumptive lodestar figure 6 7 by multiplying the number of hours reasonably expended on the litigation by the reasonable 8 hourly rate.” Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th Cir. 1993). The reasonable 9 hourly rate is determined with reference to the prevailing rates charged by attorneys of 10 comparable skill and experience in the relevant community. See Blum v. Stetson, 465 U.S. 886, 11 895 (1984). In determining the reasonable number of hours expended on the litigation, the Court 12 13 may exclude any excessive, redundant, or otherwise unnecessary hours billed. Hensley v. 14 Eckerhart, 461 U.S. 424, 434 (1983). The Court may also adjust the lodestar with reference to 15 factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). The 16 relevant Kerr factors are: (1) the time and labor required; (2) the novelty and difficulty of the 17 18 questions; and (3) the skill requisite to perform the legal services properly. “The lodestar amount 19 presumably reflects the novelty and complexity of the issues, the special skill and experience of 20 counsel, the quality of representation, and the results obtained from the litigation.” Intel, 6 F.3d 21 at 622. 22 B. Reasonableness of Rates 23 24 The Court first examines the hourly rate for time billed by his counsel requested by 25 Defendant. Defendant seeks a billing rate of $280 per hour for the work performed by attorney 26 Geoffrey M. Grindeland, and $240 per hour for the work performed by attorney Nikki Carsley, 27 both of whom work for the firm Mills Meyers Swartling, P.S. Dkt. #91 at ¶ 3. “The party seeking 28 ORDER PAGE - 2 1 fees bears the burden of documenting the hours expended in the litigation and must submit 2 evidence supporting . . . the rates claimed.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945-46 3 (9th Cir. 2007) (citing Hensley, 461 U.S. at 433). In the Ninth Circuit, “the determination of a 4 reasonable hourly rate ‘is not made by reference to the rates actually charged the prevailing 5 party.’” Welch, 480 F.3d at 946 (quoting Mendenhall v. Nat’l Transp. Safety Bd., 213 F.3d 464, 6 7 471 (9th Cir. 2000)). “Rather, billing rates should be established by reference to the fees that 8 private attorneys of an ability and reputation comparable to that of prevailing counsel charge 9 their paying clients for legal work of similar complexity.” Id. (internal quotation omitted). 10 “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the 11 community, and rate determinations in other cases, particularly those setting a rate for the 12 13 plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers 14 of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). “Generally, when determining 15 a reasonable hourly rate, the relevant community is the forum in which the district court sits.” 16 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008) (vacating award of 17 18 19 attorneys’ fees in Fair Debt Collection Practices Act case where district court failed to identify the relevant community or address the prevailing market rate). 20 In this case, Defendant has not presented evidence supporting the reasonableness of the 21 rates requested in this market. See Dkt. #91. However, given the Court’s familiarity with the 22 market and the rates typically charged by experienced attorneys in these types of cases, the Court 23 24 finds the requested rates to be reasonable. The Court also notes that neither Plaintiff nor the non- 25 party Agencies challenge the hourly rates requested by Defendant. 26 /// 27 /// 28 ORDER PAGE - 3 1 C. Reasonableness of Hours 2 The Court now turns to the reasonableness of the hours requested. “The party seeking 3 fees bears the burden of documenting the hours expended in the litigation and must submit 4 evidence supporting” the request. Hensley, 461 U.S. at 433. As noted above, the Court excludes 5 those hours that are not reasonably expended because they are “excessive, redundant, or 6 7 otherwise unnecessary.” Hensley, 461 U.S. at 434. Further, the Ninth Circuit has held it is 8 reasonable for a district court to conclude that the party seeking attorney’s fees fails to carry its 9 burden of documenting the hours expended when that party engages in “block billing” because 10 block billing makes it more difficult to determine how much time was spent on particular 11 activities. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). Likewise, intra12 13 office conferences between experienced counsel, absent persuasive justification by the moving 14 party, may be excluded from an award as unnecessary and duplicative. See id. at 949. 15 16 Defendant has presented a summary description of the time spent related to its prior motion to compel and the continued depositions and discovery at issue in that motion. Dkt. #91- 17 18 1. While neither Plaintiff nor the non-party Agencies have objected to the hours requested, the 19 Court has independently reviewed Defendant’s attorneys’ billing summary. Dkt. #91-1. The 20 Court finds all time requested to be reasonable, with the exception of a few time entries which 21 appear to be more administrative than substantive in nature. Specifically, the time reflects the 22 revision and service of deposition notices and communication with the court reporter to order a 23 24 25 hearing transcript, which are job functions typically performed by administrative staff. Accordingly, the Court will deduct the following time from its award of attorney’s fees: 26 4/5/2018 Grindeland 0.1 hrs $28.00 27 4/6/2018 Grindeland 0.1 hrs $28.00 28 ORDER PAGE - 4 5/15/2018 Grindeland 0.1 hrs $28.00 2 5/18/2018 Carsley 0.1 hrs $24.00 3 5/29/2018 Grindeland 0.1 hrs $28.00 4 In addition, the Court finds the following time to be unreasonable and/or administrative 1 5 in nature based on the description of the work performed provided by Defendant: 6 4/5/2018 Grindeland 8.9 hrs - 50% $1,246.00 (unreasonable/duplicative) 8 4/5/2018 Grindeland 0.3 hrs 9 4/20/2018 Grindeland 5.5 hrs – 50% $770.00 (unreasonable/duplicative) 7 10 $84.00 (administrative in nature) As a result, the Court will award a total of $10,444.00 in attorney’s fees ($12,680 – $2,236 = 11 $10,444.00) for the work performed by defense counsel with respect to the motion to compel and 12 13 14 15 16 discovery at issue therein. D. Lodestar Adjustment The Court finds that the time set forth above, less the reductions noted by the Court, reflects the reasonable time spent working on the motion to compel and related discovery and 17 18 19 does not find it necessary to make any lodestar adjustments. E. Costs 20 Defendant also seeks an award of costs in this matter in the amount of $1,242.95. Of the 21 costs requested, the Court will award $63.05 for the transcription of the March 2nd hearing. Dkt. 22 #91-1. The Court finds the other costs are not adequately supported. Defendant Egbert does not 23 24 explain why the transcription and videography costs were any different than those that would 25 have been incurred if the depositions had been taken all in one day as opposed to being taken 26 over two days. Indeed, counsel’s Declaration is silent as to the requested costs (other than the 27 chart setting them forth), and the motion simply states that the costs are being requested. See 28 ORDER PAGE - 5 1 Dkts. #90, #91 and #91-1. Likewise, with respect to the request for Agent Olson’s witness fee 2 check, Defendant fails to explain why he is requesting that cost. Id. Accordingly, the Court 3 awards costs in the amount of $63.05. 4 III. CONCLUSION 5 Having considered Defendant’s Supplemental Motion for Fees and Costs, the 6 7 Declarations and Exhibits in support thereof, and the remainder of the record, the Court hereby 8 finds and ORDERS that Defendant’s motion (Dkt. #90) is GRANTED IN PART AND DENIED 9 IN PART for the reasons discussed above. Defendant Egbert is awarded attorney’s fees in the 10 amount of $10,444.00 and costs in the amount of $63.05, for a total award of $10,507.05. 11 Customs and Border Protection and Immigration and Customs Enforcement SHALL 12 13 reimburse Agent Egbert and his insurer in this amount, made payable to “Mills Meyers Swartling 14 P.S. In Trust for Erik Egbert” no later than 30 days from the date of this Order. 15 DATED this 27 day of June, 2018. 16 A 17 18 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER PAGE - 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?