ROM A. TRADER, Magistrate Judge.
Before the Court is Plaintiffs Trustees of the Hawaii Annuity Trust Fund for Operating Engineers' ("Plaintiffs") Motion for Attorney's Fees and Non-Taxable Costs ("Motion") (ECF No. 108). The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawaii ("Local Rules").
Plaintiffs request $122,201.52 in attorneys' fees for 528.90 hours of work, inclusive of G.E.T. Plaintiffs also request non-taxable costs in the amount of $4,877.04. The total amount of attorneys' fees and costs sought in Plaintiffs' Motion is $127,078.56.
After reviewing the parties' submissions, records in this case, and relevant law, the Court FINDS AND RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART. The Court RECOMMENDS that the district judge find that $225.00 an hour for attorneys' fees and $85.00 an hour for paralegals' fees are reasonable. The Court FINDS that Plaintiffs' requested fees should be reduced by: (1) 20% for block billed entries; (2) 4.2 hours for duplicative entries; (3) 3.7 hours for calendaring; and (4) 10% across-the-board reduction for quarter-hour billing. The Court thus RECOMMENDS that the district judge award Plaintiffs $103,603.67 in attorneys' fees, inclusive of G.E.T., and $4,877.04 in non-taxable costs for a total of $108,480.71.
On November 16, 2016, Plaintiffs filed their Complaint for Specific Performance, Assumpsit and Damages (ECF No. 1). The Court has federal question subject-matter jurisdiction over this case as Plaintiffs' action arises from the Labor-Management Relations Act, 1947, the Employee Retirement Income Security Act of 1974, and the Multiemployer Pension Plan Amendments Act of 1980 (ECF No. 1, p.2). Defendant Kauai Veterans Express Company, Ltd. ("Defendant") filed an Answer on December 5, 2016 (ECF No. 7).
On April 10, 2017, Plaintiffs filed their Motion to Strike Answer or, in the Alternative, Motion for Partial Summary Judgment ("Motion to Strike Answer") (ECF No. 21). Defendant filed a Counter-Motion for Summary Judgment on April 24, 2017 ("Counter-Motion") (ECF No. 24). On June 29, 2017, the Court issued its Order denying Defendant's Counter-Motion (ECF No. 32) and Order Denying Plaintiffs' Motion to Strike Answer (ECF No. 33).
On August 8, 2017, Defendant filed its Motion for Partial Summary Judgment (ECF No. 39), but later withdrew the motion (ECF No. 52). On August 29, 2017, Defendant filed an Amended Motion for Partial Summary Judgment (ECF No. 48). On November 16, 2017, Plaintiffs filed a Motion to Strike Defendant's Reply Brief (ECF No. 63). The Court heard the parties' motions on November 28, 2017 (ECF No. 72). On December 1, 2017, the Court filed its Order Granting Plaintiffs' Renewed Motion for Partial Summary Judgment and Denying Defendant's Motions for Partial Summary Judgment (ECF No. 78).
On October 10, 2018, Plaintiffs filed their Motions for Summary Judgment ("MSJ") (ECF No. 87). On January 7, 2019, the Court held a hearing on Plaintiffs' MSJ (ECF No. 99). On March 12, 2019, the Court filed its Order granting Plaintiffs' MSJ (ECF No. 100). The Court ordered that the parties meet and confer in attempt to reach an agreement on liquidated damages and interest, unpaid contributions and interest, audit fees, and reasonable attorneys' fees and costs. If the parties were unable to reach an agreement, Plaintiffs were required to file a declaration by April 8, 2019 explaining all interest calculations and audit fees. The parties did not reach an agreement. On April 5, 2019, Plaintiffs filed their Motion for Entry of Final Judgment Against Defendant (ECF No. 101). On April 8, 2019, the Court ordered Defendant to show cause why it should not be sanctioned for failing to meet and confer in compliance with the Court's Order granting Plaintiffs' MSJ (ECF No. 102). On April 17, 2019, the Court filed its Order (1) Vacating Order to Show Cause and (2) Granting Plaintiffs' Motion for entry of Final Judgment (ECF No. 105).
On April 17, 2019, Judgment was filed (ECF No. 106). On April 18, 2019, an Amended Judgment was filed (ECF No. 107).
On May 2, 2019, Plaintiffs filed their Motion. Defendant opposed Plaintiffs' Motion on June 21, 2019. Defendant objects to the attorneys' fees based on the following allegations: (1) Plaintiffs have block billed; (2) Plaintiffs inappropriately seek fees for conferring with one another; (3) Plaintiffs request for calendaring should be denied; and (4) Plaintiffs' redacted billing entries lack sufficient detail.
Defendant proposes that the Court permit Plaintiffs to (1) revise their attorneys' fees by breaking down block billed entries and (2) submit a declaration describing the redacted billing. Defendant further proposes that the Court deny 67.40 hours or $15,140.00 billed for attorneys and paralegals conferring with each other; and deny 3.7 hours or $493.75 for calendaring tasks.
However, Defendant does not dispute that the attorneys' fees and costs requested are mandatory under Employee Retirement Income and Security Act ("ERISA"), 29 U.S.C. § 1132(g)(2). Defendant does not dispute Plaintiffs' requested hourly rates of $225.00 per hour for attorneys and $125.00 per hour for paralegals. Defendant also do not oppose Plaintiffs' request for costs.
On May 16, 2019, Plaintiffs filed their Statement of Consultation to the Motion. (ECF No. 112). On July 5, 2019, Plaintiffs filed their Reply Memorandum to their Motion for Attorney's [sic] Fees and Non-Taxable Costs ("Reply") (ECF No. 125). Plaintiffs argue that block billing may be acceptable, and the attorneys' descriptions adequately describe the work performed. In support of their argument, Plaintiffs cite to California and Oregon law. However, Plaintiffs request for leave to submit revised attorneys' fees if the Court is inclined to deny the block billed entries.
Plaintiffs argue that most of the fees for conferring were not duplicative. For most of these entries, only one attorney charged for the meeting even though others attended. However, Plaintiffs argue that for those entries where multiple participants billed for conferring, at most 0.25 hour was spent. Thus, Plaintiffs do not object to a 0.25 reduction for these days. Plaintiffs argue that the fees for conferring are not excessive, but if the Court found them excessive, Plaintiffs would not object to a 10% reduction.
In addition, Plaintiffs accede to Defendant's objection regarding calendaring and agree to reduce their fees by 3.7 hours or $473.75 as clerical and not recoverable. Plaintiffs also provided the Declaration of Jerry P. S. Chang to describe the redacted billing entries.
In determining an award of reasonable attorneys' fees, the Court must first address whether Plaintiffs are entitled to their attorneys' fees. The Court will next determine whether the hourly rates requested are reasonable and whether the hours expended were reasonably necessary to achieve the results obtained.
The Court must also determine whether Plaintiffs' request for costs is reasonable. As the prevailing party, Plaintiffs are entitled to reasonable costs. Defendant does not object to Plaintiffs' request for costs. Nevertheless, the Court must examine whether recovery of the costs requested are allowable.
Plaintiffs' claims arise from ERISA. Under ERISA, Plaintiffs are entitled to their attorneys' fees if there is a judgment in Plaintiffs' favor. Defendant does not dispute that Plaintiffs are entitled to recover attorneys' fees under ERISA. In relevant part, 29 U.S.C. § 1132(g)(2)(D) states:
29 U.S.C. § 1132(g)(2)(D) (emphasis added). "Under § 1132(g)(2), trust funds that successfully sue for unpaid contributions `shall' be awarded reasonable attorney's fees."
Plaintiffs were awarded a favorable judgment. On April 18, 2019, the Court granted summary judgment in favor of Plaintiffs and granted Plaintiffs leave to seek reasonable attorneys' fees and costs (ECF No. 105). The Court directed the Clerk of Court to enter final judgment in favor of Plaintiffs (ECF No. 105). The Clerk entered the Amended Judgment in a Civil Case on April 18, 2017 (ECF No. 107).
Further, the Kauai Trucking Agreement 2011-2014 ("Agreement") signed by the parties also provides that Plaintiffs should be awarded reasonable attorneys' fees. The Agreement states in relevant part: "An Employer responsible for [ ] delinquent contributions shall pay to each respective Fund: . . . reasonable attorney's fees and costs of the action as provided for by the Employee Retirement Income Security Act, as amended, together with all other reasonable expenses incurred in connection with such suit or claim including any appellate proceedings therein." (ECF No. 1-1, p.8 § 14.03.04(5)). Thus, under ERISA and the parties' Agreement, the Court FINDS that Plaintiffs are entitled to reasonable attorneys' fees and costs.
To determine the amount of attorneys' fees to award under § 1132(g), the Court uses the traditional lodestar calculation by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate.
The twelve factors are "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases."
The Court must determine whether the requested hourly rates of $225.00 per hour for attorneys and $125.00 per hour for paralegals are reasonable. When determining whether hourly rates are reasonable, the Court considers the experience, skill, and reputation of the attorney requesting fees.
Plaintiffs request an aggregate rate of $225.00 an hour for all attorneys. The attorneys on this case were Ashley Ikeda ("AI"), Caren Sencer ("CS"), Tracy Mainguy ("TM"), David Fujimoto ("DF"), Ryan Kadevari ("RK"), and Jerry P.S. Chang ("JPSC"). In support of the hourly rate requested, Plaintiffs provided the following information: Ashley Ikeda is a shareholder at the law firm Weinberg, Roger & Rosenfeld ("WRR") and has done work on a variety of ERISA matters since 1981. Motion, ECF No. 108-1, Declaration of Ashley K. Ikeda ("Ikeda Decl."), ¶ 6. Caren Sencer is also a shareholder with WRR and has been practicing labor and employment law since 2004. Ikeda Decl., ¶ 23. Mainguy has been an associate with WRR for approximately 9 years practicing labor law. Ikeda Decl., ¶ 26. In addition, Mainguy has approximately 8 years of experience advising and handling collection matters on behalf of Operating Engineers Trust Funds. Ikeda Decl., ¶ 26.
Fujimoto is an associate at WRR and has been practicing labor and employment law since 2017. Ikeda Decl., ¶ 24. Kadevari is an attorney at WRR hand has been practicing at the firm since August 2016. Ikeda Decl., ¶ 25. Kadevari has prior experience working with plans (approximately 1 year) and practicing labor and employment law (approximately 1 year). Ikeda Decl., ¶ 25. Jerry Chang has been an associate with WRR since last year, but has been practicing employment law and other areas of law for over 20 years. Ikeda Decl., ¶ 27.
Defendant does not contest the attorneys' $225.00 hourly rate. The Court is well aware of the prevailing rates in the community for similar services performed by attorneys of comparable experience, skill, and reputation. Based on the Court's knowledge of the prevailing rates and the information provided by Plaintiffs, the Court FINDS that the aggregate hourly rate of $225.00 is reasonable.
Plaintiffs request an aggregate hourly fee of $125.00 for paralegals. Defendant does not object to the requested hourly fees. However, under § 1132(g), "fees performed by non-attorneys such as paralegals may be billed separately at market rates, if this is the prevailing practice in a given community."
The prevailing practice in this community is to allow separately billed paralegal fees.
Given the information Plaintiffs provided, the Court finds that Plaintiffs' request of $125.00 per hour for paralegal fees is excessive. Courts have found that the prevailing market rate for paralegals in this community is $85.00 per hour.
This Court has reduced the rates of even the most experienced paralegals to $85.00 an hour.
The Court must next determine if the fees requested are reasonably necessary to achieve the results obtained.
The Court must guard against awarding fees which are excessive, duplicative, or unnecessary.
Defendant argues that Plaintiffs' timekeeping constitutes block billing and that the timekeeping entries contain general descriptions. Opposition, pp. 2-3. Defendant requests that the Court require Plaintiffs to submit a revised version of Exhibit "B" to Plaintiffs' Motion. Id. Block billing is a time-keeping method where each lawyer or paralegal enters the total daily time spent working on a case instead of separate entries for each task completed. "The Ninth Circuit Court of Appeals has recognized a district court's authority to reduce hours that are billed in block format."
Plaintiffs' entries indeed include several instances of block billing. It is well established in this jurisdiction that Courts are permitted to reduce requested hours due to block billing.
Out of 528.90 hours billed, Plaintiffs have block billed 104.35 hours.
"The general rule is that two professionals cannot bill for attending the same meeting."
As Plaintiffs point out in their Reply, several entries that Defendant disputes are not duplicative. The Court FINDS that the following entries are duplicative and accordingly RECOMMENDS that these entries be reduced by 0.25 for each duplicative participant: 2/28/17 (AI, DWMF) (reduce by 0.25); 4/5/17 (AI, DWMF) (reduce by 0.25); 4/24/17 (AI, DWMF) (reduce by 0.25); 5/19/17 (AI, DWMF) (reduce by 0.25); 7/6/17 (AI, DWMF) (reduce by 0.25); 7/20/17 (AI, DWMF) (reduced by 0.25); 7/21/17 (AI, DWMF) (reduce by 0.25); 10/31/17 (AI, DWMF) (reduce by 0.25); 7/30/18 (AI, DWMF, JPSC) (reduce by 0.50); 12/11/18 (AI, JPSC, TLM) (reduce by 0.50); 12/12/18 (JPSC, TLM) (reduce by 0.25); 12/13/18 (AI, TLM) (reduce by 0.25); 12/14/18 (AI, TLM) (reduce by 0.50); 12/27/18 (AI, AJN) (reduce AJN by 0.25). The Court thus FINDS that the requested attorneys' fees should be reduced by 4.00 hours and paralegal fees by 0.25. The total attorneys' fees are reduced to 481.88 hours and paralegal fees are reduced to 21.90 hours.
Defendant alleges that Plaintiffs' fee request for calendaring deadlines is excessive. "[C]lerical or ministerial costs are part of an attorney's overhead and are reflected in the charged hourly rate."
The entries Defendant disputes are indeed clerical in nature as they involve tasks related to due dates and internal office management (updating docket). Plaintiffs agree that the disputed entries are clerical in nature. Reply, p. 9. The Court FINDS that a deduction of 3.7 hours or a total of $493.75 from the total fees sought by Plaintiffs is appropriate. Out of the 3.7 hours, 0.25 hours are attorneys' fees (DWMF) and 3.45 are paralegal fees. After reducing the fees for clerical/ministerial tasks, the total hours for attorneys' fees are 481.63 and paralegal fees are 18.45.
Defendant objects to Plaintiffs' redacted entries and requests that Plaintiffs submit a declaration describing in detail the work done. Plaintiffs have submitted a declaration with their Reply that sufficiently explains the work, done for the billing entries in question. The Court FINDS that the declaration sufficiently explains the entries and thus, the fees requested for the redacted entries are reasonable.
The Court will note that Plaintiffs practice quarter-hour billing. The Ninth Circuit has found that quarter-hour billing inflates fees because counsel bills a minimum of 15 minutes for work such as phone calls and emails even though the activity may have taken a fraction of the time.
The Court FINDS that the following rates and hours are reasonable for Plaintiffs' counsel:
Pursuant to 29 U.S.C. § 1132(g)(2)(D), Plaintiffs are entitled to their reasonable costs. Plaintiffs request for a total of $4,877.04 in non-taxable costs. The party seeking attorneys' fees bears the burden of proving that the costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained.
Plaintiffs request for $157.75 in Delivery/Courier costs, $4,714.37 in electronic research costs, and $4.92 in postage costs. These costs are the type of costs typically charged to a fee-paying client.
In accordance with the foregoing, the Court FINDS AND RECOMMENDS that Plaintiffs' Motion for Attorney's Fees and Non-Taxable Costs be GRANTED IN PART AND DENIED IN PART. The Court FINDS that judgment was entered in favor of Plaintiffs on April 18, 2019 (ECF No. 107). Under 29 U.S.C. § 1132(g)(2)(D), Plaintiffs are entitled to its attorneys' fees and costs. The Court RECOMMENDS that the district judge award Plaintiffs $103,603.67 (includes G.E.T.) in attorneys' fees and $4,877.04 in costs, for a total award of $108,480.71.
IT IS SO ORDERED.
