Cen Com, Inc v. Numerex Corp et al

Filing 103

ORDER granting in part and denying in part Defendants' 94 Motion for Attorney Fees. Defendants are awarded attorneys' fees in the amount of $4,302.00. Signed by Judge Ricardo S Martinez. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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CEN COM, INC., a Washington Corporation
doing business as American Digital
Monitoring,

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Case No. C17-0560 RSM
ORDER GRANTING IN PART AND
DENYING IN PART SUPPLEMENTAL
MOTION FOR ATTORNEYS’ FEES

Plaintiff,
v.
NUMEREX CORP., a Pennsylvania
Corporation; NextAlarm, LLC, a Georgia
Limited Liability Company; and DOES 1 –
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Defendants.

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I.

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INTRODUCTION

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This matter initially came before the Court on Defendants’ motion to compel Plaintiff

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to run certain electronic search terms and to compel certain third parties to respond to

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subpoenas duces tecum, which included a request for attorneys’ fees. Dkt. #41. On April

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11, 2018, the Court granted Defendants’ motion, granted Defendants’ request for attorneys’
fees, and directed Defendants to file a supplemental motion, appending the evidence

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necessary to support their request. Dkt. #81 at 2-6. Defendants have since filed that
supplemental motion. Dkt. #94. Plaintiff opposes the motion, arguing that Defendants have

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requested an unreasonable amount of hours, and objecting to the requested hourly rates. Dkt.

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#101. Defendants now ask the Court for a total award of $8,787.50 in attorneys’ fees. For
ORDER - 1

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

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Defendants’ motion.

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II.

DISCUSSSION

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,
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
billed. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court may also adjust the

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lodestar with reference to factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,

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69-70 (9th Cir. 1975). The relevant Kerr factors are: (1) the time and labor required; (2) the

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novelty and difficulty of the questions; and (3) the skill requisite to perform the legal services

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properly. “The lodestar amount presumably reflects the novelty and complexity of the issues,
the special skill and experience of counsel, the quality of representation, and the results
obtained from the litigation.” Intel, 6 F.3d at 622.
B. Reasonableness of Rates

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The Court first examines the hourly rate for time billed by their counsel requested by

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Defendants. Defendants seek a billing rate of $460 per hour (2017) and $475 per hour (2018)

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for the work performed by attorney Mathew Harrington, and $275 per hour (2017) and $310

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ORDER - 2

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per hour (2018), both of whom work for the firm Stokes Lawrence, P.S. in Seattle, WA. Dkt.

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#95 at ¶ ¶ 3-4. Although a paralegal also performed services on the matter, Defendants do

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not seek to recover fees for her time. Id. at ¶ 2.
“The party seeking fees bears the burden of documenting the hours expended in the
litigation and must submit evidence supporting . . . the rates claimed.” Welch v. Metro. Life

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Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007) (citing Hensley, 461 U.S. at 433). In the Ninth

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Circuit, “the determination of a reasonable hourly rate ‘is not made by reference to the rates

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actually charged the prevailing party.’” Welch, 480 F.3d at 946 (quoting Mendenhall v. Nat’l

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Transp. Safety Bd., 213 F.3d 464, 471 (9th Cir. 2000)). “Rather, billing rates should be
established by reference to the fees that private attorneys of an ability and reputation

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comparable to that of prevailing counsel charge their paying clients for legal work of similar
complexity.” Id. (internal quotation omitted). “Affidavits of the plaintiffs’ attorney and other

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attorneys regarding prevailing fees in the community, and rate determinations in other cases,

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particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the

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prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403,

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407 (9th Cir. 1990). “Generally, when determining a reasonable hourly rate, the relevant
community is the forum in which the district court sits.” Camacho v. Bridgeport Fin., Inc.,
523 F.3d 973, 979 (9th Cir. 2008) (vacating award of attorneys’ fees in Fair Debt Collection

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Practices Act case where district court failed to identify the relevant community or address

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the prevailing market rate).

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In this case, Defendants have failed to present adequate evidence supporting the

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reasonableness of the rates requested in this market. See Dkt. #95 at ¶ 3. Indeed, Defendants

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ORDER - 3

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support their request with a single statement from attorney Harrington that he “believe[s]

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[]his rate and the rate of Mr. Zuniga to be commensurate with rates of professionals with

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similar experience who represent clients in complex commercial lawsuits such as this one.
Dkt. #95 at ¶ 3. While defense counsel might “believe” that the hourly rate is reasonable,
Defendants provide no analysis of the rates charged for these types of cases in the Seattle

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market. Given the Court’s familiarity with the market and the rates typically charged by

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experienced attorneys in these types of cases, and a review by this Court of similar actions in

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which attorney’s fees were awarded, the Court finds that the average rates awarded are

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typically between $350.00 and $400.00 per hour. Accordingly, given the absence of proper
evidence from Defendants to comparable attorney rates in the Seattle market, the Court finds

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that Defendants have failed to meet their burden to establish a reasonable hourly rate of more
than $400.00 per hour for Mr. Harrington. Mr. Zuniga’s rates appear to be commensurate

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for the market. The Court will therefore calculate the lodestar using the hourly rate of $400

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per hour for Mr. Harrington’s time, and the rates proposed for Mr. Zuniga’s time.

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C. Reasonableness of Hours
The Court now turns to the reasonableness of the hours requested. “The party seeking
fees bears the burden of documenting the hours expended in the litigation and must submit
evidence supporting” the request. Hensley, 461 U.S. at 433. As noted above, the Court

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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

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

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fails to carry its burden of documenting the hours expended when that party engages in “block

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ORDER - 4

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billing” because block billing makes it more difficult to determine how much time was spent

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

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Likewise, intra-office conferences between experienced counsel, absent persuasive
justification by the moving party, may be excluded from an award as unnecessary and
duplicative. See id. at 949.

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Defendants have presented a summary description of the time spent related to the

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motion to compel. Dkt. #95 at ¶ 6. The Court notes that Defendants filed the initial motion

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to compel on February 8, 2018. Dkt. #41. However, Defendants request hours expended on

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litigation as far back as June 27, 2017. Dkt. #95 at ¶ 6. A review of that time reveals that
those hours were required for actions that are typical in litigation of a matter, and not solely

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related to the motion to compel. See id. It is true that attorney conferences occurred prior to
the filing of the motion regarding the issues raised in the motion. See id. However, discovery

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conferences are mandated by the Federal Rules of Civil Procedure and the Court’s Local

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Rules as a matter of course. Accordingly, the Court will not compensate Defendants for the

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time entries between 6/27/17 and 1/17/2018.

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The Court has reviewed Defendants’ attorneys’ summary of time for the remaining
hours requested. Dkt. #95 at ¶ 6. The Court will not award fees for the time Defendants’
counsel spent discussing the case between each other or with their own clients (as that type

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of activity is analogous to an intra-office conference). Further, defense counsel has provided

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the court with “block” time entries, which has left the Court unable to attribute specific time

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spent on a particular activity on several dates. Dkt. #95 at ¶ 6; Welch, 480 F.3d at 948.

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Accordingly, the Court will deduct from its award of attorney’s fees the following:

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ORDER - 5

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2/2/18

JAZ

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2/5/18

MLH 1.0 x $400 = $400 (block billing, intra-office conference)

2/8/18

JAZ

1.5 x $310 = $465 (block billing, intra-office conference)

2/22/18

JAZ

0.5 x $310 = $155 (block billing, intra-office conference)

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1.3 x $310 = $403.00 (block billing)

In light of the rate reduction already imposed, and the time reductions noted above,

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the Court finds that the remaining hours requested by Defendants’ counsel are reasonable,

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and will award the fees associated with those hours, again noting that there is no award of

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time spent on the matter prior to 2/2/2018, and that the hourly rate for Mr. Harrington has

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been reduced to $400 per hour.
Accordingly, the total amount of attorney’s fees awarded is:

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MLH 4.4hrs x $400 = $1760.00
JAZ

8.2hrs x $310 = $2542.00

TOTAL = $4,302.00
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 does not find it
necessary to make any lodestar adjustments.
E. Costs
Defendants have not sought an award of any costs on this motion.
III.

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CONCLUSION

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Having considered Defendants’ Supplemental Motion for Fees and Costs, the

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opposition thereto, the Declarations and Exhibits in support thereof, and the remainder of the

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ORDER - 6

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record, the Court hereby finds and ORDERS that Defendants’ motion (Dkt. #94) is

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GRANTED IN PART AND DENIED IN PART. Defendants are awarded attorneys’ fees in

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the amount of $4,302.00.
DATED this 4th day of May 2018.

A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER - 7