OLIVER W. WANGER, District Judge.
This case arises out of Plaintiff's former employment at the Kern Medical Center, an acute care teaching hospital owned and operated by the County of Kern, California. Plaintiff David F. Jadwin, D.O. ("Plaintiff") claimed, among other things, that the County and its employees retaliated and discriminated against him in contravention of federal and state law. The employment issues were tried before the Court and a jury from May 14, 2009 to June 4, 2009. On June 5, 2009, the jury returned verdicts in favor of Plaintiff. On August 4, 2009, Findings of Fact and Conclusions of Law were issued on the claims tried to the court alone. On May 4, 2010, Final Judgment was entered in favor of Plaintiff and against Kern County in the amount of $505,457, plus $1 in nominal damages on his civil rights claim. At trial, Plaintiff requested over $4.2 million in economic damages.
Before the Court for decision are several post-trial motions. Plaintiff has moved to amend the judgment to incorporate his bill of costs and for prejudgment interest. He has also moved to recover $3,944,818.00 in attorneys' fees pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3) and California Government Code § 12965.
Oral argument on these motions was held on July 28, 2010. The Court, pursuant to Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir.2008), a Ninth Circuit case establishing the rules for evaluating an attorney's fee request under 42 U.S.C. § 1988, directed Plaintiff to supplement, organize, and refine his motion for attorneys' fees.
The relevant facts and procedural history are summarized in the Court's previous Memorandum Decisions in this case, filed on April 8, 2009 and March 31, 2010, in brief:
Mental and emotional distress and suffering. $ 0.00
Reasonable value of necessary medical care, treatment, and service received to
the present time. $ 30,192.00
Reasonable value of necessary medical care, treatment and services which with
reasonable probability will be required in the future. $ 0.00
Reasonable value of earnings and professional fees lost to the present time. $321,285.00
Reasonable value of earnings and professional fees with which reasonable
probability will be lost in the future. $154,080.00
___________
Total damages $505,457.00
Certain claims were not submitted to the jury, specifically, Plaintiff's claim for interference with his rights under the FMLA/CFRA and a deprivation of Plaintiff's due process rights under the Fourteenth Amendment (made actionable by 42 U.S.C. § 1983).
On May 28, 2010, Defendant filed two post-trial motions. The first, to amend the Final Judgment to incorporate the dismissals of several individually-named defendants. (Doc. 414.) According to the County, these individually-named defendants are "prevailing parties" in this action and are entitled to recover their costs of suits. The motion concerns the following individually-named defendants, who were named in the original and first amended
Plaintiff also filed two post-trial motions. On May 28, 2010, Plaintiff moved to amend the Final Judgment to incorporate in the final judgment, prejudgment interest and his recoverable costs. (Doc. 424.) On June 1, 2010, Plaintiff moved for attorney's fees of $3,944,818.00 pursuant to 42 U.S.C. § 1988, 29 U.S.C. § 2617(a)(3), Cal. Gov't Code § 12965, and E.D. Local Rule 54-293. (Doc. 425.)
Oral argument on the post-trial motions was held on July 28, 2010. At the conclusion of the hearing, it was determined that supplemental briefing and specific justification was necessary to resolve the motions for prejudgment interest and attorney's fees. (Doc. 450.) Opening supplemental briefs/oppositions on these issues were filed on August 6, 13, 16, and 18, 2010. (Docs. 444, 447-49.) The final opposition and reply briefs were filed on September 3 and 16, 2010. (Docs. 450 and 451.)
The County moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure.
The County filed its motion for a new trial on May 28, 2010.
The declarations describe Mr. Lee's conduct during trial, including his alleged gesturing and scoffing during witness examinations in front of the jury; his inappropriate and inflammatory comments during closing argument; and his apparent "confusion" over yet repeated use of the term "demotion" as it relates to Dr. Jadwin's removal from his Pathology Department chairmanship position at Kern County Medical Center. The declarations and other supporting Rule 59 evidence are delineated by topic:
(Doc. 417 at ¶ 6.)
(Doc. 420 at ¶ 3.)
Ms. Barnes' declaration mirrors that of Ms. Delong's. (See, e.g., Doc. 418 at ¶ 3) ("During the course of the trial, in the presence of the jury, Plaintiff's attorney, Eugene Lee, used the word "demotion" several times in reference to Plaintiff's removal from the chairmanship of the Pathology Department at Kern Medical Center.").
(Doc. 419 at ¶ 2.)
(Doc. 422 at ¶ 3-4.)
Karen Barnes and Renita Nunn, two trial witnesses, submitted sworn declarations describing similar conduct by Plaintiff's counsel during trial. (Docs. 418 & 423.) According to Ms. Barnes, she was "uncomfortable" and "distracted" by the constant gesturing, facial grimaces, and snickers from Plaintiff and his attorneys. (Doc. 418 at ¶ 4.) Renita Nunn states that Mr. Lee and Ms. Herrington made "huffing sounds" and rolled their eyes when they disagreed with a witness or opposing counsel. (Doc. 423 at ¶ 3.) Ms. Nunn further recounts an incident where Mr. Lee was admonished by the court after he yelled "come on" in response to one of her answers. (Id. at ¶ 4.) She also states that Mr. Lee "threw his arms about" and engaged in "theatrics" during trial. (Id. at ¶ 3.)
The County argues that Mr. Lee improperly appealed to bias, prejudice and emotion in his closing argument by referring to the County's size and power. According to the County, this was a "clear theme" to Mr. Lee's trial strategy and supports its Rule 59 motion for a new trial. During his closing argument, Mr. Lee stated:
(RT, June 4, 2009, 81:10-81:17.)
The Court, sua sponte, immediately instructed the jury to disregard Mr. Lee's statement:
(RT, June 4, 2009, 81:23-82:1.)
Each time Mr. Lee was admonished he apologized and on more than one occasion stated that it was his first trial and he was "trying."
Rule 59(a) of the Federal Rules of Civil Procedure provides that a court may grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a). Rule 59 does not specify the grounds on which a motion for a new trial may be granted. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is "bound by those grounds that have been historically recognized." Id. Historically recognized grounds for a new trial include a verdict that is against the weight of the evidence, damages that are excessive, or a trial that was not fair to the moving party. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir.2007). A new trial may be granted only if, after weighing the evidence as the court saw it, "the verdict is contrary to the clear weight of the evidence, is based upon false or perjorious evidence, or to prevent a miscarriage of justice." Molski, 481 F.3d at 729 (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir.2000)). The decision whether misconduct of trial counsel has been so egregious to require a new trial is committed to the broad discretion of the court. See Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir.1987); see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) ("The authority to grant a new trial [. . .] is confided almost entirely to the exercise of discretion on the part of the trial court.")
The County argues that Plaintiff's attorneys committed "grievous misconduct" throughout the trial, leading to an improper and inconsistent jury award. The County explains:
(Doc. 433 at 5:19-5:23.)
Plaintiff's counsel is critical of the County's characterization of his behavior during trial. According to Mr. Lee, there was "no misconduct which permeated the entire proceeding so as to prejudice the jury" and, even if there was, "Defendant failed to object [. . .] This bars relief." Defendant also disputes the County's interpretation of Ms. Herrington's alleged gesturing and misconduct, which he describes as minimal and not impacting the Rule 59 analysis.
The County's Rule 59 motion also argues that Plaintiff's counsel continually committed gross prejudicial misconduct during closing argument when he "aggressively appealed to a bias against big organizations." According to the County, the references to the County's supposed "power and size" were so numerous that they created "a clear theme to his argument." Defendant argues that Plaintiff's counsel's "plan" or "theme" culminated in closing argument when he characterized the County as "powerful" and described his client's interaction with his employer as "one person against an entire County and all of its resources."
Here, Plaintiff's counsel's comments concerning the County's size and available resources were improper, as he readily concedes. (RT, July 28, 2010 at
As the Court stated during oral argument on the Motion for New Trial on July 28, 2010, the comment was improper but was immediately and appropriately remedied:
(RT, July 28, 2010, 87:24-88:15.)
Second, the "size" comments alleged to have deprived the County of a fair trial were isolated rather than persistent. They occurred only during closing argument. See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to grant a motion for a new trial where "the alleged misconduct occurred only in the argument phase of the trial . . . most of counsel's comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument"). The misconduct complained of in this case is substantially different from the "closing argument misconduct" supporting a new trial in Bird v. Glacier Electric Coop., Inc., 255 F.3d 1136 (9th Cir.2001). In Bird, the Ninth Circuit concluded that counsel's closing arguments offended fundamental fairness because counsel: (1) argued in inflammatory terms; (2) linked the defendant's behavior to white racism in exploitation of Indians; (3) appealed to historical racial prejudices of or against the white race; and (4) used incendiary racial and nationalistic terms to encourage the all-tribal member jury to make an award of damages against the non-Indian defendant. Id. at 1152. Bird is distinguishable.
Lastly, had defense counsel believed that any prejudice to the jury was not cured by the Court's sua sponte admonition
The County next argues that Plaintiff's counsels' gesturing, grimacing, and scoffing during witness questioning deprived the County of a fair trial. The County explains:
(Doc. 416 at 6:6-6:18.)
According to the County, this conduct continued through the entire trial and had a distracting, disturbing, and infuriating impact on witnesses. Plaintiff and his counsel disagree.
The starting point is the County's failure to object to these alleged gestures, facial expressions, or grunts during trial. The objections are made for the first time in the County's motion for a new trial. The "non-objection" issue was discussed during the July 28, 2010 oral argument, at which point the Court stated that it did not observe the alleged inappropriate gesturing and mocking, in part because defense counsel did not bring the conduct to the Court's attention. Rather, the Court was focused primarily on the witness, jury, trial exhibits, real-time testimony on the Court's monitor, and its taking of trial notes; not on Plaintiff's attorneys or the individuals sitting near Plaintiff's table.
The Ninth Circuit holds that a new trial should only be granted where the "flavor of misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Settlegoode, 371 F.3d at 516-17. An even higher threshold governs where, as here, defendant failed to object to the alleged misconduct during trial.
Here, the conduct at issue does not meet this high threshold. See, e.g., A.D. v. Cal. Highway Patrol, No. C-07-5483-SI, 2009 WL 1817004, at *5 (N.D.Cal. June 23, 2009) (finding that defendants did not meet Settlegoode's high threshold).
As to the objections that were made at trial, the County claims that Mr. Lee's conduct was "part of an overall strategy to compromise the integrity of the trial to emotion and bias." To support its argument, the County submits several declarations describing an admonishment of Mr. Lee for "making guttural sounds." The declarations also portray a reprimand of Mr. Lee for making a sarcastic remark to a witness. With respect to these statements and conduct, defense counsel's objections were sustained and the jury was given a curative instruction. See, e.g., Messick v. Patrol Helicopters Inc., 360 Fed.Appx. 786, 789 (9th Cir.2009) ("Plaintiffs' counsel erred [. . .] however, the district court gave the jury a curative instruction subsequent to that argument, and a jury is presumed to follow the district court's instructions.").
Defendant did not raise the issue of cumulative prejudice and did not move for a mistrial or request further jury instruction on the issues, nor raise concerns that the County was forced to make repeated objections, which cast the County in the light of being obstructionist.
None of the objected-to conduct satisfied the Settlegoode standard; it did not permeate the entire proceeding so as to influence and/or prejudice the jury. A review of the record reveals that Mr. Lee's cross-examination of several witnesses was contentious and at times sarcastic, particularly as to Plaintiff's former professional colleagues at Kern Medical Center. However, the discordant nature of the examination was often brought on by the witnesses, who themselves argued or were adverse in response to points Defendant sought to establish. Further, the record does not indicate that Mr. Lee's extraneous comments were actually heard by any member of the jury. It is also possible that the jury viewed Plaintiff and his counsel in a less favorable light by observing the complained-of behavior.
The same reasoning applies to the argument that "Mr. Lee's continued use of the word `demotion' was prejudicial to the County because it implied Plaintiff was punished even though neither party introduced evidence to support such a finding." The objections were sustained and, as the County explains: "the Court gave Mr. Lee a lengthy admonition and warning, outside the presence of the jury, for his continued use of the word [. . .] Mr. Lee extravagantly apologized and assured the Court he would stop." Contrary to the County's assertions, there is no evidence in the record that Mr. Lee made "insincere apologies" to the Court or that his language choice was "calculated and pervasive in nature." Rather, the record demonstrates Mr. Lee's misstatements were due to his total inexperience as a trial attorney and unfamiliarity with the federal rules of evidence.
The County also moves for a new trial or, in the alternative, to alter, amend, or obtain relief from judgment based on Mr. Lee's confusion over the applicability to his case and, particularly, the employment-based claims he prevailed on at trial. The County advances three arguments to support its position. First, the jury's verdict for the reasonable value of earnings and professional fees which with reasonable probability will be lost in the future should be amended because the basis for such an award is unclear. Second, Plaintiff's counsel equivocated on Plaintiff's claims during closing argument, which "encouraged juror confusion and denied the County of its right to have the jury treat each claim separately and accurately. Third, Plaintiff allegedly violated the primary rights doctrine by alleging violation of several legal theories when there was only one injury.
The County's first argument is an extension of the "liquidated damages" analysis contained in the March 31, 2010 Memorandum Decision. The Memorandum Decision explained that the statutory basis for the claimed "reasonable value of earnings and professional fees" award was unintelligible, therefore liquidated damages were not available. It also discussed the impact of the general jury verdict in the context of prejudgment interest, which was unavailable for the same reasons. Here, the County adds an additional element to the analysis: If liquidated damages were improper because the foundation for "future damages" was unclear, then the entire "future damage" award is infirm.
This issue is discussed in detail in the "prejudgment interest" section, § III(B)(1), infra. Both parties argue that the award must be modified (upward or downward) because the jury did not award damages based on federal (FMLA) or state (FEHA or CFRA) violations. According to the County, the entire future damage award must be thrown out because "it might be based on the FMLA." It does not follow that the entire "future" damage award is infirm. While the federal FMLA does not provide for "front pay," the award of reasonable value of earnings and professional fees is properly supported under the state FEHA and CFRA claims. Although Mr. Lee did not make this explicitly clear during trial, the County did
The County's second argument, that counsel "equivocated" during closing argument, is resolved under the "misconduct" framework, discussed in detail above. Here, the "equivocation" allegedly took place during closing arguments and was not objected to by the County. On these facts, there is no basis to grant a new trial. See Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991) (declining to grant a motion for a new trial where "the alleged misconduct occurred only in the argument phase of the trial [. . .] most of counsel's comments were not objected to at trial and appellants did not move for a mistrial at the end of the argument"). Defendant did not move for a mistrial based on the Plaintiff's arguments. Taking Mr. Lee's "equivocation" independently or in the aggregate, there is insufficient evidence to conclude that this alleged misconduct permeated the trial and irreversibly prejudiced the County. Mr. Lee's (mis)expressions in this area are indicative of counsel's inexperience, not gross incompetence or intentional misconduct.
The County's final argument is that Plaintiff's "redundant" claims ran afoul of the "primary rights" doctrine. The California Supreme Court explained that the primary rights theory:
Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 904, 123 Cal.Rptr.2d 432, 51 P.3d 297 (2002) (citations omitted). A party may bring only one cause of action to vindicate a primary right. Id. at 897, 123 Cal.Rptr.2d 432, 51 P.3d 297. Claims not raised in this single cause of action may not be raised at a later date. Id.
The foundation for the County's primary rights argument, which was raised for the first time in its third round of post-trial briefing, is that Plaintiff's August 10, 2009 motion "revealed for the first time that Plaintiff's claims all arose from the same set of employment actions." The County states that: "had it known that Plaintiff believed his claims all arose from the same
The County's argument incorporates language from the Ninth Circuit's decision in Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022 (9th Cir.2005), discussing the primary rights doctrine:
Id. at 1031-31.
Plaintiff responds that the County "fundamentally misunderstands the primary rights theory." Plaintiff relies on Agarwal v. Johnson, 25 Cal.3d 932, 160 Cal.Rptr. 141, 603 P.2d 58 (1979) for the proposition that "one adverse employment action could involve the violation of more than one primary right."
On this point, Plaintiff also cites Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 750 F.2d 731 (9th Cir.1984): "As both Mattson [v. City of Costa Mesa, 106 Cal.App.3d 441, 164 Cal.Rptr. 913 (1980)] and Agarwal indicate, the single most important factor in determining whether a single course of conduct has violated more than one primary right is whether plaintiff suffered injury to more than one interest." Plaintiff then recounts eight "interests," including the right to a reasonable accommodation in employment; right to a workplace free from discrimination; right to an interactive process; and right to workplace free from retaliation as separate "interests," involving distinct primary rights, which were included in the second amended complaint.
Plaintiff argues that the case involved a "set of facts" that violated several "rights" or "interests." The County frames the issue as: "there was only one injury, therefore there was only one claim for relief." The County does not specify the "single injury" allegedly suffered by Plaintiff. In this case, contrary to the County's arguments, Plaintiff possessed a number of legally protectable "interests" under different statutes. Uncertainty over what statutory violation(s) — federal or state — led to the damage award, cuts against the County's arguments.
The jury verdict contains several damage awards that reflect the jury determined that Plaintiff experienced multiple violations of his different federal and state statutory rights. Given the jury's findings and the lack of legal authority supporting the County's position, there is no basis to find that Plaintiff violated the primary rights doctrine. As the Court explained during oral argument on July 28, 2010:
(RT, July 28, 2010 at 94:10-95:13.)
It was within the County's ability to request answer to such clarifying questions by jury instruction and verdict form with specific findings. The County did not ask for such findings in the verdict forms to separately identify which primary rights were violated.
The trial of this case culminated in a result that was supported by substantial evidence. The testimony of members of the Medical Board of Kern Medical Center show that they had personal disputes with and animosities toward the Plaintiff arising out of conflicts. Trial testimony given by members of the Board could have been perceived by the jury as condescending, if not arrogant, and unduly critical of the Plaintiff. Even accepting the defense theory that the Plaintiff was a difficult colleague to interact with; unreasonable in his insistence on conformity with his views as to medical quality assurance; and unduly sensitive in withdrawing from professional practice at the hospital; there was countervailing evidence that demonstrated that Plaintiff was well thought of by nurses and other Department of Pathology staff; that he was a dedicated scientist and committed in good faith to medical quality assurance. That his personal idiosyncracies were not consonant with the culture of the Board and Medical Directors at Kern Medical Center, in the jury's view did not justify removing him from medical practice in the Department of Pathology, even if his removal as the Director was required by his chronic absences. It is also likely that the jury did not accept the Defendant's view that Dr. Jadwin was "too disruptive" to be permitted to continue in residence in the practice of pathology at the hospital.
Throughout this case, the level of contentiousness between counsel was unprecedented. Substantial unnecessary court time was required to resolve discovery disputes, personal quarrels, and logistical issues between counsel. This hostility continued at trial.
This was Plaintiff's lead counsel's (Mr. Lee) first trial. His inexperience was obvious, he violated a number of the applicable Rules of Court Decorum that governed the trial. A copy is attached to this opinion marked Exhibit A and incorporated herein by this reference.
Defense counsel was very competent and experienced. The defense made numerous strategic choices to not object, to not assign misconduct, not move for a mistrial, or otherwise request admonitions or jury instructions that would have addressed the specific problems now raised by the now-surfacing post-trial objections to the trial conduct of Plaintiff's counsel. As the law of this Circuit cited in this decision pellucidly establishes, the time to address and to cure trial counsel's misconduct is when it occurs. There are many strategic reasons not to do so, all within the sound judgment of an experienced trial lawyer. Such reasons include not alienating the jury; not wishing to appear obstructionist; not repeatedly objecting to the point that the jury is disaffected; not appearing to be unduly hostile toward opposing counsel which may engender an adverse response from the jury; not wishing to emphasize a negative comment from the judge or conduct which would unduly prejudice the jury; and attempting to focus the jury on the points the defense sought to establish, rather than concentrating on the Plaintiff's arguments and contentions. The Court attempted not to intervene, except where absolutely necessary, and attempted to treat counsel for both sides with respect and courtesy. The Court did not use a raised voice, did not express anger, irritation, was neutral in addressing each counsel, and ultimately endeavored to focus counsel and the parties on the merits of the case.
The County's Rule 59 motion for a new trial is DENIED.
Having decided the County is not entitled to a new trial under Rule 59, Plaintiff's requests for prejudgment interest, attorney's fees and costs remain to be decided.
Plaintiff moves to amend or correct the Final Judgment to include prejudgment interest of $32,286.39. Plaintiff first moved for an award of prejudgment interest on August 10, 2009, citing Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 922 (9th Cir.1995), Criswell v. Western Airlines, Inc. 709 F.2d 544, 556-557 (9th Cir.1983), Currie v. Workers' Comp. Appeals Board, 24 Cal.4th 1109, 1115, 104 Cal.Rptr.2d 392, 17 P.3d 749 (2001) and California Civil Code § 3287(a). That motion was denied on March 31, 2010 on grounds that the jury did not allocate the amount of damages attributable to the federal (FMLA) or
Jadwin v. County of Kern, 2010 WL 1267264, at *16-17 (E.D.Cal.2010).
Plaintiff renewed his motion for prejudgment interest on May 28, 2010. The second time around, Plaintiff argues that the $505,457.00 damage award does not include "front pay," which is not recoverable under the FMLA, but rather "past damages" and "future damages" which are both recoverable under Civil Code § 3287(a).
Without any guidance from the verdict form or case law, Plaintiff now asks the Court to ignore the FMLA claims and evidence, which he failed to differentiate for the jury and failed to request separate verdict findings on each state and federal claim to eliminate the ambiguity of what the jury findings are on these claims, and to calculate interest under the "prejudgment interest friendly" FEHA and CFRA. This is unprecedented and requires impermissible post-trial judicial interpretation of a "stipulated" general verdict form. Contrary to Plaintiff's arguments, there is no basis to conclude that the damage award was based on state law violations, or vice versa.
Plaintiff next offers a "solution" for the adverse employment actions issue, i.e., what adverse employment action formed the basis for the jury's damage award:
(Doc. 424 at 6:19-6:23.)
Plaintiff offered the following prejudgment interest calculation:
1. 333 days/365 days x 7% interest x 505,557 = 32,286.39 (Id. at 6:25.)
Plaintiff's proposal is a reasonable solution to a unique problem, i.e., absence of itemized damages referable to each adverse employment action or identifying the underlying theory of recovery. The general approach submitted by Plaintiff is adopted to calculate prejudgment interest. Plaintiff's specific calculations, however, are rejected as they are based on the entire jury award, $505,457.00. As discussed in detail in this Memorandum Decision, in open court on July 28, 2010, and in the March 31, 2010 Memorandum Decision, the jury did not allocate the amount of damages attributable to the federal or state violations. There is nothing in the record to ascertain whether the jury's damage award was based entirely on state
This does not the end the analysis. The parties dispute whether federal or state law provides the applicable prejudgment interest rate. Plaintiff originally argued that the correct rate was 10% per annum, the maximum state law rate for post judgment interest; but has since revised his request to 7% per annum. Plaintiff argues that this is the correct interest rate because "state law is controlling with regard to the prejudgment interest rate." (Doc. 449 at 4:17-4-18.) In support, Plaintiff cites Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915 (9th Cir.2009) and the March 31, 2010 Decision, which stated that "prejudgment interest is substantive for Erie purposes [. . .] that makes California law applicable to prejudgment interest on Plaintiff's state law claims." (Doc. 408 at 32:12-32:13.)
Plaintiff once again ignores the seminal dispute in this case, that the jury did not allocate the amount of damages attributable to the federal or state violations. Without a specific jury determination on that issue, there is no basis to support an omnibus "state law" prejudgment interest calculation to the exclusion of the federal rate. To illustrate, a 7% interest rate is appropriate in diversity cases, when a party prevails on a state law claim.
The Defendant's reciprocal contention is unavailing.
There is no clear solution on how to best to calculate prejudgment interest in this
The Ninth Circuit has made clear that prejudgment interest is an element of compensation, not a penalty, and has the primary goal of making an aggrieved party whole. See generally Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 988 (9th Cir.2001); accord Drumm v. Morningstar, Inc., 695 F.Supp.2d 1014, 1022 (N.D.Cal.2010) ("The purpose of prejudgment interest `is to provide just compensation to the injured party for loss of use of the award during the prejudgment period — in other words, to make the plaintiff whole as of the date of the injury.'") (citing Lakin v. Watkins Assoc.'d Indus., 6 Cal.4th 644, 663, 25 Cal.Rptr.2d 109, 863 P.2d 179 (1993)).
Plaintiff is awarded prejudgment interest from the date of the jury's verdict, June 5, 2009, to the date of entry of final judgment, May 4, 2010. However, based on the uncertainty in the jury's general verdict award, which was proposed, given, and accepted by the parties without objection, or request for an alternate verdict form, Plaintiff is awarded prejudgment interest at a rate of 5.125% on the principal damages award of $321,285. The total prejudgment interest award is $15,022.27.
The parties agree that the Plaintiff is entitled to an award of post-judgment interest at the federal treasury rate, from the date of the judgment to the date of satisfaction of the judgment. (RT, July 28, 2010, 58:24-59:24.)
Plaintiff's request is GRANTED and the judgment is AMENDED to include an award of post-judgment interest at the federal treasury rate, from the date of the judgment to the date of satisfaction of the judgment.
Plaintiff requests an award of attorney's fees under both Federal law (42 U.S.C. § 1988 and 29 U.S.C. § 2617(a)(3)) and California law (Cal. Gov't Code § 12965).
The statutes cited by Plaintiff provide that a district court, in its discretion, may award reasonable fees to the prevailing party. See 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of section . . . 1983 of this title, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ."); Dotson v. Pfizer, Inc., 558 F.3d 284, 295 (4th Cir.2009) ("The FMLA directs the award of reasonable attorneys' fees to a prevailing plaintiff [. . .] [t]he amount of attorneys' fees awarded is at the trial court's discretion.") (citations omitted); see also Cal. Gov't Code § 12965(b) ("the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs.").
The County does not dispute that Plaintiff is the prevailing party under the cited statutes and case law, however, it argues that the motion should be denied in its entirety due to Plaintiff's conduct/behavior and egregious over-litigation and limited success.
Acknowledging that Plaintiff is a prevailing party under the relevant federal and state statutes, the County still argues that no attorney fees should be awarded because his fee request was poorly documented and overstated. The County also asserts that a complete denial is support by Plaintiff's counsel's "substantial and continuing misconduct and unprofessional behavior." The County cites Serrano v. Unruh, 32 Cal.3d 621, 635, 186 Cal.Rptr. 754, 652 P.2d 985 (1982), for the proposition that a trial court may "reduce the award or deny one altogether" if the fee request "appears unreasonably inflated."
Here, while the litigation was contentious and counsel was inexperienced, there are no facts to justify a complete denial of attorney's fees under either Federal or California law. Courts in both fora have limited the complete denial of fee awards to cases involving "special circumstances."
Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir.2000) provides the closest specific context. There, the district court denied
The same approach was followed here. Although Plaintiff's counsel's fee request is less detailed and developed than the prevailing party in Fischer,
Once a determination is made that attorney's fees are appropriate, the standard to be applied in calculating an award of attorney's fees is that of "reasonableness." Whether under the California state law, or federal law, a determination of reasonableness generally involves a two-step process. First, the court calculates the "lodestar figure" by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate. See, e.g., Ketchum v. Moses, 24 Cal.4th 1122, 1131-32, 104 Cal.Rptr.2d 377, 17 P.3d 735 (2001); PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095, 95 Cal.Rptr.2d 198, 997 P.2d 511 (2000); see also McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir.1995). In determining the lodestar amount, the California Supreme Court has "expressly approved the use of prevailing hourly rates as a basis for the lodestar." Ketchum, 24 Cal.4th at 1132, 104 Cal.Rptr.2d 377, 17 P.3d 735. The "relevant legal community" in the lodestar calculation is generally the
Second, the court may adjust the lodestar upward (via fee enhancer or "multiplier") or downward based on an evaluation of certain factors, including, among other things, the time and labor required; the novelty and difficulty of the questions involved; the skill requisite to perform the legal service properly; the preclusion of other employment by the attorney due to acceptance of the case; and whether the fee is fixed or contingent. See id.; cf. Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975). Not all factors are always relevant in determining whether an award is reasonable. The party seeking a fee enhancement bears the burden of proof. See Ketchum, 24 Cal.4th at 1138, 104 Cal.Rptr.2d 377, 17 P.3d 735.
Courts may reduce a requested fee award, or deny one altogether, where a fee request appears unreasonably inflated. See id. at 1137, 104 Cal.Rptr.2d 377, 17 P.3d 735; see also Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. 1933 (court may deny compensation for "hours that are excessive, redundant, or otherwise unnecessary").
The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked. Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits. Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir.1987).
Plaintiff argues that 4,026.1 hours expended by Mr. Lee and the 862 hours expended by Ms. Herrington were reasonable.
To determine the hours reasonably expended, it is necessary to profile the post-trial briefing in this case, namely the documentation used to support Plaintiff's motion for attorneys' fees. Here, the voluminous documentary evidence submitted by Plaintiff's counsel is inadequate to support an attorney's fee petition in this Circuit, especially one that requests nearly $4 million from a public entity.
Based on the state of law in the Ninth Circuit, including Moreno v. City of Sacramento, 534 F.3d 1106, it is difficult to understand why Plaintiff's lead counsel submitted voluminous billing records without delineating a specific total for each of the categories of work he performed.
During oral argument on July 28, 2010, the Court explained Ninth Circuit law on fee motions and that Plaintiff's documentary support foreclosed any attempt to meet that standard:
(RT, July 28, 2010, 109:14-111:11, 116:1-117:18.)
Also on June 28, 2010, the Court, pursuant to a Minute Order, requested that counsel "include task and billing totals in their supplemental applications for attorneys fees."
Plaintiff filed supplement billing information on August 16, 2010. (Doc. 448.) In particular, Plaintiff filed a Memorandum of Points and Authorities and Mr. Eugene Lee's supplemental declaration, a 76-page amendment to his original 96-page declaration.
The County opposed the supplemental briefing based on Plaintiff's counsel's lack of detailed billing records and task totals, as requested on July 28, 2010 in open court and, later, pursuant to Minute Order. In its opposition, the County correctly observed that Plaintiff's counsel did not provide the information requested by the Court on July 28, 2010. To remedy these deficiencies and reach a final fee total, the County prepared appropriate task totals:
(Doc. 450 at 7:21-7:28.)
In a last ditch attempt to meet Ninth Circuit fee standards, Plaintiff filed a reply on September 16, 2010.
The United States Supreme Court has made clear that "[t]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Plaintiff has not met that burden in this case. As a result of Plaintiff's counsel's continued oversights, which are unexplained given the number of opportunities he has been afforded to amend his billing information and the Court's recitation of the relevant legal standards, an independent calculation of an accurate lodestar is required.
Although district courts have discretion to determine the amount of a fee award, "it remains important ... for the district court to provide a concise but clear explanation of its reasons for the fee award." Hensley, 461 U.S. at 437, 103 S.Ct. 1933. The district court should give at least some indication of how it arrived at the amount of compensable hours for which fees were awarded to allow for meaningful appellate review. Cunningham v. County of Los Angeles, 879 F.2d 481, 485 (9th Cir.1988) ("Courts need not attempt to portray the discretionary analyses that leads to their numerical conclusions
"The fee applicant bears the burden of documenting the appropriate hours expended in litigation and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir.1992). A court must guard against awarding fees and costs which are excessive and must determine which fees and costs were self-imposed and avoidable. INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir.1987). A court has "discretion to `trim fat' from, or otherwise reduce, the number of hours claimed to have been spent on the case." Soler v. G & U, Inc., 801 F.Supp. 1056, 1060 (S.D.N.Y.1992) (citation omitted). Time expended on work deemed "excessive, redundant, or otherwise unnecessary" shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933).
Determining the appropriate fee award in a case involving voluminous fee materials and resistance by the moving party to comply with the law will inevitably be imprecise. To the extent possible, an attempt was made to address each time entry and objection filed by the parties. If an entry or objection was not addressed, it was either incorporated into a task total without specific reference or, alternatively, was too vague and unnecessary to consider. See Ravet v. Stern, No. 07CV31-JLSCAB, 2010 WL 3076290, at *6 (S.D.Cal. Aug. 6, 2010) (explaining the "vague entry" case law and excluding fees because "the Court cannot reasonably ascertain whether these conversations were pertinent or irrelevant to the [fee motion]."). A number of time entries were excluded based on the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933:
Id. at 437, 103 S.Ct. 1933.
The confusion and resistance of Plaintiff's counsel to organize and chronologically catalogue and/or describe the specific service giving rise to the fees in this case further complicated an already arduous undertaking.
According to Defendant, Plaintiff's counsel spent an excessive number of hours drafting the original, amended and supplemental complaints. Defendant argues that the Court should "substantially reduce" the claimed number of hours spent on these tasks, which it estimates at 415 hours:
(Doc. 450 at 21:3-21:5.)
Defendant also claims that Court should exclude in its entirety: (1) the time associated with the (mis)filing of the first amended complaint; and (2) the time associated with filing the third supplemental
Plaintiff rejoins:
(Doc. 451 at 34:26-35:12.)
Plaintiff's arguments lack merit. As to Mr. Lee's briefing, there was an easy fix to this problem: he could have provided the necessary documentation during the first two rounds of briefing, filed on June 1, 2010 and August 16, 2010, specifying the specific hours spent research and drafting the complaint and subsequent amendments/supplements. Having decided not to do so, after several rounds of briefing and a lengthy instruction on the relevant legal standards, Plaintiff has not satisfied the Moreno standard.
Even considering the merits of his third and most recent supplemental filing, Mr. Lee's supporting documentation is incomplete and underdeveloped. In particular, Plaintiff argues that Defendant incorrectly includes non-complaint research time into the "complaint" total. Plaintiff, however, does not separately accumulate or relate this "uncategorized" time to the complaint, instead offering an artificially reduced "original" complaint total of 106.4 hours. More problematic is that Mr. Lee responds with task totals for the "complaint" and "third supplemental complaint," but does not follow a similar procedure for other iterations of the complaints: the two supplemental complaints or the "uncategorized research." There is no explanation for Mr. Lee's selective task totaling, which resulted in another layer of confusion.
The preparation of the complaints, including research, should have taken Mr. Lee no more than 80 hours. The various iterations of the complaint were nearly identical and of limited complexity. The gravamen of the litigation was that the County violated Plaintiff's rights, as contract department chair and pathologist within the Kern County Medical Center's hospital, under the FMLA, the FEHA, the CFRA, and 42 U.S.C. § 1983.
According to Ms. Herrington's declaration, she expended 17.3 hours researching the complaint and 42.5 hours drafting the complaint, for a total of 59.8 hours.
Defendant argues that Mr. Lee cannot recover a single hour of his travel time. Defendant cites the "blending" together of Mr. Lee's travel time and his time spent on purely legal tasks. This amalgamation allegedly made it impossible to quantify Mr. Lee's travel time, thus the time is not recoverable:
(Doc. 450 at 9:27-10:7.)
Plaintiff responds by stating that Defendant could deconstruct the different time tasks/totals, but simply chose not to do so:
(Doc. 451 at 9:9-9:11.)
Plaintiff misses the point. Under Hensley, 461 U.S. 424, 103 S.Ct. 1933 and Deukmejian, 987 F.2d 1392, it is Plaintiff's burden to document his hours, including travel, and submit evidence to support the hours billed. It is not incumbent on the Court or opposing counsel to isolate, itemize, break down, and attempt to categorize by legal activity Plaintiff's counsel's billing records. See Kearney v. Foley and Lardner, 553 F.Supp.2d 1178, 1185 (S.D.Cal.2008) ("The Court must have `substantial evidence' to support the fee award."). Ninth Circuit law does not require a district court to work backwards and sift through thousands of pages of billing records and excel spreadsheets. Rather, the Ninth Circuit provides that, in situations involving inadequate fee documentation, the district court may request supplemental billing information from the moving party. See, e.g., Fischer, 214 F.3d at 1121. That approach was initially taken in this case. Plaintiff, however, chose not to comply with the Court's specific requests, communicated to counsel in open court and pursuant to Minute Order, giving him the opportunity to do so. It is difficult to understand Plaintiff's confusion on this point.
Defendant does not object to Ms. Herrington's well-documented request for 39 hours of travel time.
Defendant argues that the 91 hours billed by Mr. Lee and Ms. Herrington in conjunction with Defendant's "Fifth Affirmative Defense" was unnecessary and wasteful. The fifth affirmative defense was advanced in Defendant's June 21, 2007 Answer.
The motion was denied in a brief 8-page decision on October 23, 2007, 2007 WL 3119670. (Doc. 64.) The Court explained:
(Doc. 64 at 5:18-6:3.)
Plaintiff filed a motion for reconsideration of the October 23, 2007 Order, (Doc. 68), which was denied without prejudice on December 17, 2007, 2007 WL 4463282 (Doc. 81). The Court stated that the "evidence of Plaintiff's conduct is relevant to
Although those facts never developed, Plaintiff moved to dismiss the fifth affirmative defense four additional times, in his motion for summary judgment, (Doc. 263), twice in limine, pre-trial and during trial, (Docs. 324 & 376), and during the Rule 51 conference, (Doc. 381). These requests/motions were all denied.
As explained to Plaintiff on a number of occasions, several times in written decisions, there was no question that the evidence of Plaintiff's misconduct was relevant to whether he was subjected to unlawful adverse employment actions and a hostile work environment. The fifth affirmative defense was one of Defendant's key litigation strategies, i.e., Plaintiff's alleged mistreatment of hospital employees and disagreeable nature precipitated and justifies the employment actions taken against him. Although the jury did not ultimately agree, Plaintiff's alleged misconduct was highly relevant to determine motive, as it was supported by the hospital Board chairs and some Department heads.
That the law recognized Defendant's ability to assert such a defense should have been abundantly clear to competent employment law counsel; at a minimum, after reviewing the Memorandum Decision re: Cross-Motions for Summary Judgment. Any subsequent billed time to prepare reconsideration motions is excluded from the fee total as unnecessary. The issue was fully presented and the repeated reassertion of the motions were meritless disguised motions for reconsideration. In addition, the total time billed is excessive for the work performed. The preparation of the preceding motions should have taken no more than 40 hours. Plaintiff's counsel also committed a number of administrative errors when he filed the original motion to strike. This time—1 hour— is excluded. For these reasons, among others, the time spent litigating the fifth affirmative defense is reduced from 91 hours to 40 hours.
Defendant argues that the Court should exclude the 59 hours spent preparing Plaintiff's four motions for reconsideration. Plaintiff disagrees. Citing Emery v. Hunt, 272 F.3d 1042, 1047-48 (8th Cir. 2001), Plaintiff argues that the entire 59 hours are recoverable because "a prevailing party is entitled to recover fees for all hours reasonably spent in pursuit of the litigation, including hours spent on unsuccessful motions." (Doc. 451 at 12:13-12:14.)
Plaintiff's arguments are largely unpersuasive as they omit the linchpin of the Eighth Circuit's analysis: that the hours be
Plaintiff argues that the remaining motions for reconsideration were necessary based on Magistrate Judge Goldner's "controversial nature" and alleged bias against him:
(Doc. 451 at 15:7-15:13.)
Plaintiff's arguments are unsupported. Plaintiff's counsel has shown a proclivity to personally criticize any judge who has ruled against Plaintiff's counsel. There is no indication that Magistrate Judge Goldner's rulings were improperly influenced, as they conformed with the Supreme Court and Ninth Circuit precedent. (See, e.g., Doc. 81; Doc. 174; Doc. 222.) Plaintiff's counsel's unduly contentious conduct during discovery and conflicts with opposing counsel made necessary the intervention of the magistrate judge on a number of occasions. The arguing and conflict between the attorneys at depositions justified discovery sanctions and the need for a master, even if not implemented. Plaintiff conveniently overlooks the fact that discovery had degenerated to the point where counsel could not civilly communicate. Judicial intervention was required to complete discovery based on the animosity that existed between Mr. Lee and Mr. Wasser.
In any event, each one of the motions for reconsideration was denied.
In addition, Plaintiff's motions for reconsideration demonstrated manifest confusion of the relevant legal standards, the likely explanation Plaintiff's lack of success. As discussed in the Court's September 11, 2008 Order, 2008 WL 4217742, denying Plaintiff's motion for reconsideration:
Plaintiff's request for reconsideration is DENIED. The record establishes that the conduct of both attorneys during depositions is at fault and that the protective order issued by the Magistrate Judge is well within her discretion and necessary to manage the process of discovery in this action. The mutual protective order is not clearly erroneous or contrary to law. Plaintiff's requests for sanctions were denied without prejudice by the Magistrate Judge because Plaintiff failed to document the requested amounts. These rulings also are not clearly erroneous or contrary to law.
(Doc. 222 at 2:4-3:5.)
Here, Plaintiff seeks to recover almost 60 hours in fees for filing several motions for reconsideration. One of these motions was withdrawn, several were without a legal basis, and all were denied. This warrants a reduction in the amount of fees recovered for these motions. See Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Management, No. 04-CV-2293-SMG, 2009 WL 5185808, at *7 (E.D.N.Y. Dec. 23, 2009) ("plaintiff did not prevail on its motion for reconsideration, and this warrants a reduction in the amount of fees recovered."). To account for Plaintiff's lack of success, the confusion over the relevant legal standards, the frivolity of the May 5, 2008 motion and the excessive time spent preparing the motions, the total number of hours are reduced by 50%, from 59 hours to 29.5 hours.
Defendant next contests the number of hours spent noticing, conducting and defending the more than forty depositions in this case, including Plaintiff's deposition. Defendant contends that many of the depositions were not needed and Mr. Lee wasted countless hours on "useless questioning about subjects that were not in issue and arguing with witnesses." (Doc. 450 at 11:20.) Defendant requests a reduction from 657 hours to 329 hours for deposition-related tasks.
Plaintiff rejoins that Defendant is "wrong" about the number of deposition hours billed by his attorneys:
(Doc. 451 at 16:26-27.)
The deposition transcripts reveal that both counsel were combative and aggressive.
The substance of the County's arguments are that two counsel were not necessary to defend depositions. Plaintiff fails to acknowledge that any duplication of efforts existed in this case, arguing that Defendant "failed to rebut Ms. Herrington's evidence that, throughout this litigation, including at the depositions, she undertook different, complementary tasks." Such a position is not supported by Plaintiff's briefing. Excluding the deposition of Regina Levison, it is unclear why Ms. Herrington's presence was She did not separately pose questions or lodge she did not conduct the deposition or defend the witness, Mr. Lee did. Ms. Herrington's declaration is similarly vague, listing only her attendance at certain depositions, not her participatory role or most notably what preparation she did. Ms. Herrington did not question, lead, defend or object during depositions, she does not describe her "complementary" role.
To account for such unjustified duplication of efforts, among other reductions, the total number of deposition hours are reduced by 30%. See Wheeler v. Coss, No. 3:06-CV-00717-RAM, 2010 WL 2628667, at *6 (D.Nev. June 22, 2010) (reducing the requested deposition amount by 30.33 hours based on the Court's discretion and its litigation knowledge.). The number of hours spent on all deposition-related tasks are reduced from 453.8 to 317.7, broken down as follows: Ms. Herrington is awarded 88.7 hours and Mr. Lee is awarded 229 hours.
Defendant argues that three categories of time are "manifestly ineligible" from inclusion in the fee award: (1) attorney-client non-litigation work; (2) secretarial and clerical work; and (3) researching appellate procedures. According to Defendant, Plaintiff spent 57.2 hours on the first unexplained task, 169.1 hours on the second and on 14.5 the third. Defendant provides a separate index of the time spent by Plaintiff's counsel on these tasks. (Doc. 450-1.)
Defendant first argues that the Plaintiff spent 57.2 hours on "tasks [that] have nothing to do with prosecuting Plaintiff's claims." (Doc. 450 at 9:17.) Plaintiff responds that the tasks were "directly related" to the litigation and, in any event, Defendant did not carry his burden to provide specific evidence to challenge the reasonableness and accuracy of the hours billed. Plaintiff ignores that it is the moving party who carries the initial burden to support his fee motion, which was not done in this case. Plaintiff's failure to properly document and support his motion directly impacted the ability to respond/evaluate the motion.
Defendant's primary argument is not entirely accurate. Most of the alleged "non-litigation" time constitutes electronic communications between Plaintiff and his counsel, as well as research of employment issues, specifically, time spent researching Plaintiff's FMLA eligibility and reviewing employment and buyout documents. Time spent on these tasks is recoverable. However, a number of the entries are excluded, including Mr. Lee's conversations with a TV reporter and phone calls between Mr. Lee and Ms. Herrington to discuss Mr. Lee's performance on television. Other entries are inflated, i.e., billing several hours to send "confirmatory emails" and "read and review" short emails. A modest
Defendant next contends that 169.1 hours should be excluded on the ground it constitutes "secretarial and clerical work." Plaintiff rejoins that these activities are recoverable as "attorney work product." For the most part, the time entries correspond to work on the "chronology grid" and "CaseMap" software.
Although somewhat clerical in nature, Courts have held that time spent organizing and formatting "CaseMap" software is properly recoverable. See Semmaterials, L.P. v. Alliance Asphalt, Inc., No. CV-05-320-S-LMB, 2007 WL 676675, at 3 n. 1 (D.Idaho Mar. 1, 2007) ("Time spent updating CaseMap and adding persons, witnesses, and organizations to spreadsheets have not been excluded because, although somewhat clerical in nature, these tasks add to a database that organizes information to save attorneys' time and to help attorneys perform legal services in a more efficient manner."). On the current record, however, there is considerable overlap between CaseMap and Plaintiff's "chronology grid." Plaintiff's cursory explanation of a "chronology grid" bears a striking resemblance to the function of the CaseMap software.
Defendant's final argument is that Plaintiff's counsel spent 14.5 hours researching appellate procedure, however, "no appeal could have been taken and [an] extraordinary writ was never available." (Doc. 450 at 9:24-9:25.) Plaintiff rejoins:
(Doc. 451 at 12:2-12:5.)
Plaintiff is awarded eight hours for these tasks. Plaintiff is entitled to conduct reasonable research concerning appellate law, however, the billed time and his "new" explanation for this research conflict. Most of the alleged time spent researching appellate procedure occurred in April 2009, after the dispositive motion rulings in this case. Plaintiff's counsel incurred the rest of the time in 2010, an entire year after trial. It is unclear how Magistrate Judge Goldner's "numerous" rulings are relevant to these entries. Magistrate Judge Goldner resigned from the bench on April 6, 2009 and did not rule on any dispositive motions. No other explanation of the purpose of this research is provided.
Defendant argues that the Court should reduce the 25 hours Plaintiff spent researching "spoliation" issues. According to Defendant, Plaintiff attempted to build a spoliation claim based on the conduct of
Plaintiff does not specifically dispute Defendant's factual summary, however, he argues that the 25 hour calculation is "wrong." Rather, Plaintiff asserts that the correct hourly total is 11.5 hours. This is a reasonable figure. Plaintiff's figure of 11.5 hours for purposes of calculating time spent researching spoliation is adopted.
Defendant argues that all time spent on the whistleblowing claims should be excluded:
(Doc. 450 at 17:14-17:23.)
Defendant advances two additional arguments to support a reduction. One, Plaintiff could not establish a prima facie case under California Labor Code § 1102.5 because the "time span between the protected activity and the adverse employment actions was too great. Two, Plaintiff wasted countless hours requesting over 10,000 documents to explore the unmeritorious whistleblower claims. He requests a reduction of over 75 hours.
Plaintiff responds that he is entitled to recover all of the time spent researching, preparing and arguing his whistleblower claims. He does not identify the number of hours spent litigating these claims. According to Plaintiff, because the Court did not make a specific finding that the claims were "frivolous," he is entitled to all of his fees:
(Doc. 450 at 22:13-22:19) (citation omitted).
Plaintiff advances a similar argument regarding § 1102.5, that the claim was not declared "frivolous" by the Court. He also asserts that the discovery was necessary and, in any event, Defendant did not "indicate how it reached the arbitrary number of 75 hours [the reduction]." Plaintiff is correct on this point. Defendant proposes a reduction, but does not provide a task calculation or an analytical starting point.
Plaintiff is guilty of the same offense, which controls the analysis. See Falcon Waterfree Tech., LLC v. Janssen, No. 1:05-cv-551, 2008 WL 4534119, at *4 (W.D.Mich. Oct. 6, 2008) ("Where, as here, the fee petition makes it impossible to clearly differentiate between compensable and non-compensable attorney time, the onus of that lack of clarity falls on the moving party."). Plaintiff again fails to understand the relevant legal standard to
An accurate lodestar figure for "whistleblower" tasks cannot be determined given the current state of the briefing. The whistleblower claims and a number of other claims advanced by Plaintiff shared common issues of fact, however, it was Plaintiff's burden to: (1) produce accurate/adequate billing records to support its fee motion, i.e., remove any ambiguity that impedes the calculation of an accurate lodestar; and (2) to "establish that the fees sought are `associated' with a successful claim." Signature Flight Support Corp. v. Landow Aviation Ltd. Partnership, 730 F.Supp.2d 513, 528 (E.D.Va.2010). Plaintiff did neither in this case.
For these reasons, among others, it is impossible to deduce a lodestar figure for these tasks with any accuracy.
According to Defendant, Plaintiff spent an "incredible" 319 hours preparing ten motions to compel or for protective orders. Defendant claims that the Court should reduce this amount because: three of the motions were withdrawn; several of the motions concerned Plaintiff's "frivolous" whistleblowing claims; and Plaintiff chose not to reconvene the deposition of Patricia Perez.
Plaintiff contends that all of the hours are reasonable. He represents that two of the motions were withdrawn, not three, and "none of the motions were focused on whistleblowing claims, as Defendant contends, or any other claim, for that matter [...] they focused on adverse employment actions and/or rebuttal of Defendant's Fifth Affirmative Defense." (Doc. 451 at 25:17-25:19.)
For the most part, these topics have been addressed. Most of the time spent preparing the motions to compel were required by the deterioration of Mr. Lee's and Mr. Wasser's professional relationship. Plaintiff's counsel, however, was unduly contentious and combative during discovery, which resulted in unnecessary discovery motions and court involvement. To account for this conduct, the withdrawn motions, the lack of documentation (and vagueness) to support the whistleblowing claims and the excessive number of hours spent drafting the motions to compel, among other reasons, Plaintiff is awarded 160 hours, the equivalent of four work weeks, for these tasks.
Defendant next asserts that none of the time spent on administrative filings, undisclosed experts and background filings is recoverable. According to Defendant, Plaintiff spent 34 hours on administrative
With respect to undisclosed experts, Plaintiff represents that his counsel spent 18.6 hours. Plaintiff's figure is reasonable and is accepted to calculate an accurate lodestar.
With respect to the other two categories, Plaintiff repeats his boilerplate argument that there is no "particularized challenge" to his evidence, thus Defendant's calculation fails. This argument assumes that the documentation used to support the motion for attorney's fees is accurate, which is not the case. Instead, Plaintiff's failure to provide adequate documentation and explanation necessitated Defendant's calculations/methodology. The failure to document fees continues in the present motion as Plaintiff does not provide a corrected figure despite Defendant's specific challenge.
However, it is undisputed that Plaintiff was required to satisfy certain administrative prerequisites to commence litigation against the County. All of these hours cannot be excluded. With respect to the undisclosed experts, several of the individuals were on Plaintiff's expert list, (see, e.g., Doc. 320). Although Plaintiff's documentation is inadequate, Defendant's inability to recollect these individuals does not control the analysis. To account for these deficiencies, among others, 18 hours are awarded for administrative filings and 60 hours for background investigations. No additional time is warranted due to the failure to provide specific task descriptions, time increments or background documentation.
The dispute over the motions for summary judgment encompasses three discrete tasks: (1) reviewing Defendant's motion for summary judgment; (2) preparing Plaintiff's motion for summary judgment; and (3) attendance/preparation for oral argument.
Defendant claims that Mr. Lee and Ms. Herrington spent approximately 863 hours on these tasks. Plaintiff disagrees, stating that counsel only spent 712.4 hours, 545.5 hours (Mr. Lee) and 166.9 hours (Ms. Herrington). Plaintiff's total is accepted as a starting point for the lodestar analysis.
Plaintiff argues that the time billed on each of these tasks was reasonable, in many cases directing the Court to the actual motion documents. According to Plaintiff, "the complexity was reflected in Plaintiff's MSJ/MSA which was over 1,000 pages, Defendant's MSJ was nearly 1,200 pages, and Plaintiff's opposition to Defendant's MSJ which was over 1,000 pages." (Id. at 36:24-37:1.) Plaintiff also claims that this case "was extremely complex, involving 13 counts, 5 years of events, tens of thousands, of documents produced in discovery, more than 50 depositions, and more than 20 witnesses called at trial that last nearly 4 weeks." (Doc. 451 at 37:24-36:24.)
The true complexity of this case has been appraised throughout this Memorandum Decision. While the case required counsel to martial facts and establish an employment time-line, the legal theories and arguments were neither novel nor innovative. Plaintiff also incorrectly correlates motion length with legal complexity. The majority of the dispositive motion briefing consisted of deposition testimony and discovery responses, which were attached as exhibits to Mr. Lee's and Mr. Wasser's declarations. The actual "legal" briefing was less than 8% of the total pages. While necessary to review this material, it takes less time to process and configure factual information, mostly deposition testimony, into a responsive briefing and/or trial strategy. In addition, as discussed
After careful review of the summary judgment and post-trial briefing, the hours requested by Plaintiff's counsel are unreasonable. The motions were important for resolving the central issues in this case and the attorneys who worked on them should be compensated accordingly, however, billing the equivalent of eighteen work weeks—more than four working months—is excessive.
To be clear, each party's motion was granted in part and denied in part. Plaintiff's motion, for the most part, was not a success.
Mr. Lee claims that he spent 31.7 hours preparing for and attending the oral argument on these motions and 20.5 hours reviewing the April 8, 2009 Memorandum Decision, of which 35 hours are reasonable. Ms. Herrington asserts she spent 1.1 hours attending the hearing. All of Ms. Herrington's time is reasonable.
The final dispute concerning the summary judgment motions is Defendant's complaint about Mr. Lee's alleged "insistence to treat language in the Court's summary judgment decisions as `undisputed facts.'" (Doc. 450 at 15:21-15:22.) According to Defendant, Mr. Lee unreasonably "transformed" the Court's Memorandum Decision into a statement of undisputed facts, which made it impossible to draft the joint pretrial statement. Defendant claims that the 89 hours expended by Mr. Lee in connection with the pretrial statement should be excluded.
For the reasons discussed in the April 29, 2009 Order, Plaintiff is awarded 15 hours in connection with the preparation of the pretrial statement:
(Doc. 321 at 3:14-6:13.)
Plaintiff is awarded 21.2 hours total for all pretrial statement activities, including
Defendant argues that the time spent preparing the jury instruction, motions in limine and the verdict form should be reduced. With respect to the preparation of the jury instructions, Defendant explains:
(Doc. 450 at 16:25-17:1.)
Defendant additionally states that the motions in limine were "straightforward and simple" and the time entries are "inflated." Lastly, Defendant argues no time should be awarded concerning the Plaintiff's proposed verdict form because "the Court prepared the verdict form."
Plaintiff only responds to the motions in limine dispute. Plaintiff argues that his in limine fees are reasonable because "the Court granted all 17 of Dr. Jadwin's motions in limine." (Doc. 425 at 7:14-7:15.) In addition, according to Plaintiff, the 108 hours (89 hours by Mr. Lee/Ms. Herrington and 18 hours by Ms. Minger) are reasonable because the motions "addressed several fact intensive and controversial issues, such as admissibility of the radiologist tie-pulling incident as character evidence and exclusion of speculative expert opinion." (Doc. 451 at 38:26-38:28.)
With respect to this dispute, Plaintiff holds the weaker hand. First, as explained during the July 28, 2010 hearing, the Order granting Plaintiff's motions in limine was docketed in error. It was vacated during the July 28, 2010 hearing. (See Doc. 440, Minute Order, "Order Granting Plaintiff's Motions in Limine 1-17 was STRICKEN for reasons as stated on the record.") It is undisputed that Plaintiff was not as successful as he claims to be. Second, on the most difficult and "fact-intensive" motions, Plaintiff did not prevail. This includes the "tie-pulling incident" and the testimony of Defendant's expert, Thomas McAfee, M.D., motions 13 and 16. The majority of Plaintiff's motions in limine were boilerplate motions, i.e., to exclude non-party witnesses, to limit expert testimony to stated opinions, to exclude references to Plaintiff's claim for attorney's fees and to exclude evidence in support of unpleaded defenses. The drafting of these motions required very little time; they were undisputed, not "fact intensive" or legally "complex."
For these reasons, and to address excessive and duplicative billing, Mr. Lee and Ms. Herrington's requested time is reduced from 89 hours to 50 hours.
With respect to the fees requested for preparing the jury instructions and verdict form, neither of which Plaintiff addresses, Plaintiff's counsel are awarded 40 hours (preparing draft jury instructions) and 10 hours (verdict form). As Plaintiff did not
Defendant argues that the time spent on three "miscellaneous" tasks should be excluded. One, the time spent drafting a "reply and sur-reply" to its opposition to the motion for liquidated damages and prejudgment interest. Defendant claims that these responses were not "authorized." Two, the ten hours spent preparing an 88-page opposition to Defendant's ex parte motion, which was granted on March 7, 2008. (See Doc. 122.) Three, Mr. Lee's preparing and submitting a Proposed Order on Defendant's Motions in limine.
Defendant's first objection is without merit. The Court addressed the topic in the March 31, 2010 Memorandum Decision, (Doc. 408). The time is not excluded in its entirety. However, it was unreasonable to bill almost 22 hours to prepare unauthorized response briefs,
The second objection focuses on Plaintiff's opposition to Defendant's "Ex Parte Motion for an Order Shortening Time Re Motion for Permission to Serve Expert Reports After May 5, 2008." Defendant claims that the ten hours spent drafting an 88-page opposition should be excluded. According to Defendant, its motion was "immediately granted."
Defendant is half right. Although the motion was successful, there is nothing in the record to support a complete reduction of fees. Plaintiff's opposition was lengthy and largely unnecessary, but it was not capricious or frivolous. Mr. Lee is permitted five hours for this task.
The general confusion over the motions in limine was discussed in § III(B)(3)(1), supra. As to the dispute, the Court instructed each party to submit a proposed order on their own motions in limine following the May 8, 2009 oral argument. The Local Rules provided Plaintiff an opportunity to counter Defendant's Proposed Order, however, the two Proposed Orders were identical, except for language concerning motion in limine No. 10. Plaintiff's version incorrectly characterized the ruling and was inaccurate. (Compare Doc. 351, MIL No. 10, pg. 3 with Doc. 347, MIL No. 10, pg. 2.) Defendant's Proposed Order was adopted in its entirety. The claimed 1.1 hours spent preparing Plaintiff's Proposed Order (on Defendant's motions in limine) are excluded.
Defendant also objects to the amount of time spent by Plaintiff's counsel preparing for and attending trial. Defendant requests a reduction of approximately 20%.
Ms. Herrington claims she spent 60.5 hours on trial-related tasks. Mr. Lee, however, does not provide a total for trial-related tasks.
A painstaking independent review of Mr. Lee's declarations, (Docs. 425-1, 448-1 and 451-1), reveals that Mr. Lee spent 321.8 hours on all trial-related tasks, including
Defendant's proposed reduction of approximately 20% is high. Rather, a 15% downward adjustment of trial time and fees is warranted. Based on the Court's familiarity with this action and trial experience in over 500 jury trials to verdict, the duplication of effort, the sheer number of hours spent corresponding with co-counsel and on clerical/admin tasks and after reviewing all of the time entries in detail, among other reasons, a reduction of fifteen percent is appropriate.
Ms. Herrington is awarded 51.4 hours for trial-related tasks. Mr. Lee is awarded 273.5 hours.
Defendant objects to the 115 hours Plaintiff's counsel spent preparing the Bill of Costs, filed June 29, 2009. Defendant also objects to Plaintiff's filing of a reply, arguing that a reply brief is not allowed under the Local Rules.
Plaintiff responds that the time spent composing the Bill of Costs is reasonable based on the "complexity" of the case. As to the filing of a reply, Plaintiff states: "Defendant never filed an objection [] [n]or did Defendant raise this issue once at the post trial motions hearing [on July 28, 2010] [. . .] Defendant's objection is waived." (Doc. 451 at 21:6-21:9.)
As the "Bill of Costs" is addressed by separate Memorandum Decision, it is unnecessary to address the reasonableness of those charges here. Any fees reasonably incurred in preparing a cost bill are addressed—and awarded—separately.
-----------------------------------------------------------------------------------------------
D's Proposed
Task Hours Requested Reduction Hours Awarded
-----------------------------------------------------------------------------------------------
All Complaint-related Not separately "Substantial" 80
tasks delineated
-----------------------------------------------------------------------------------------------
Travel Not separately No time should be 13.8 & Task Totals
delineated awarded
-----------------------------------------------------------------------------------------------
Fifth Affirmative 68.6 (D's approx was No time should be 25
Defense 91 hours for all awarded
counsel)
-----------------------------------------------------------------------------------------------
Reconsideration 59 (D's approx) No time should be 29.5
awarded
-----------------------------------------------------------------------------------------------
Depositions 327.2 (453.8 for all 329 for all counsel 229 (317.7 for all
counsel) (reduced from 657 counsel)
hrs)
-----------------------------------------------------------------------------------------------
Non-Litigation 57.2 (D's approx) "Manifestly 51.5
Ineligible"
-----------------------------------------------------------------------------------------------
Clerical Work 169.1 (D's approx) "Manifestly 100
Ineligible"
-----------------------------------------------------------------------------------------------
Appellate Research 14.5 (D's approx) "Manifestly 8
Ineligible"
-----------------------------------------------------------------------------------------------
Spoliation 11.5 (D's approx) "Substantial" 11.5
-----------------------------------------------------------------------------------------------
Whistleblowing N/A No time should be 0 awarded ----------------------------------------------------------------------------------------------- Motions to Compel 319 (D's approx) No time should be 160 awarded ----------------------------------------------------------------------------------------------- Undisclosed Experts 18.6 (P's approx) No time should be 18.6 awarded ----------------------------------------------------------------------------------------------- Administrative 34 (D's approx—P No time should be 18 Filings agrees) awarded ----------------------------------------------------------------------------------------------- Background 121 (D's approx—P No time should be 60 Investigations agrees) awarded ----------------------------------------------------------------------------------------------- Preparing/Opposing 545.5 (712.4 hours for "Substantial" 229.5 Dispositive Motions all counsel) ----------------------------------------------------------------------------------------------- Preparing for & 52.2 "Substantial" 35 Attending Hearing ----------------------------------------------------------------------------------------------- re: Dispositive Motions, Reviewing Court Order ----------------------------------------------------------------------------------------------- Pretrial 89 (D's approx—P No time should be 21.2 agrees) awarded ----------------------------------------------------------------------------------------------- Motions in limine 89 (Mr. Lee and Ms. 50 17.5 Herrington, 108 hours total) ----------------------------------------------------------------------------------------------- Jury Instructions 67 "Substantial" 40 ----------------------------------------------------------------------------------------------- Verdict Form 17 "Substantial" 10 ----------------------------------------------------------------------------------------------- All trial-related time Not Provided 20% reduction 273.5 ----------------------------------------------------------------------------------------------- Liquidates Damages 22 (D's approx—P No time should be 10 "Sur-Reply" agrees) awarded ----------------------------------------------------------------------------------------------- Motion for Additional — — 20 Findings of Fact and Conclusions of Law ----------------------------------------------------------------------------------------------- Opposition to Ex 10 (D's approx) No time should be 5 Parte Application awarded ----------------------------------------------------------------------------------------------- Proposed Order re: 1.1 (P's approx) No time should be 0 Defendant's Motions awarded in Limine ----------------------------------------------------------------------------------------------- Bill of Costs N/A N/A N/A ----------------------------------------------------------------------------------------------- Post-Trial Motions N/A N/A 25 and "Fees-on-Fees" (See Below) ----------------------------------------------------------------------------------------------- Preparation of N/A N/A 0 Supplemental Fee Motions ----------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------- Total: — — 1491.6 -----------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
D's Proposed
Task Requested Reduction Hours Awarded
---------------------------------------------------------------------------------------------------
All Complaint-related 59.8 "Substantial" 40
tasks
---------------------------------------------------------------------------------------------------
Motion to Strike Fifth 22.4 No time should be 15 Affirmative Defense awarded (first draft) --------------------------------------------------------------------------------------------------- Depositions 126.6 329 for all counsel (re-duced 88.7 from 657 hrs) --------------------------------------------------------------------------------------------------- Retaining Experts 7.3 n/a 7.3 --------------------------------------------------------------------------------------------------- Preparing/Opposing 166.9 "Substantial" 70.5 Dispositive Motions --------------------------------------------------------------------------------------------------- Motions in Limine 57.7 50 for all counsel 32.5 --------------------------------------------------------------------------------------------------- Jury Instructions 34.8 "Substantial" See Above --------------------------------------------------------------------------------------------------- Verdict Form 17.7 "Substantial" See Above --------------------------------------------------------------------------------------------------- Court Attendance 61.6 20% Reduction 52.5 (MSJ and Trial) --------------------------------------------------------------------------------------------------- Correspondence 230.8 (all correspon-dence "Substantial" See Above. Included and client up-dates in subtotals, e.g., —"given to Ms. "non-litigation" and Herrington") "preparing/opposing dispositive motions" --------------------------------------------------------------------------------------------------- Fee Petition 56.3 N/A 20 --------------------------------------------------------------------------------------------------- Travel 39 None 39 --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------- Total: 880.9 — 365.5 ---------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
D's Proposed
Task Requested Reduction Hours Awarded
-----------------------------------------------------------------------------------------------
Motions in
Limine 18 "Substantial" 10
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Total: 18 — 10
-----------------------------------------------------------------------------------------------
Plaintiff's counsels' claimed theoretical rates are as follows: Eugene Lee, lead counsel, $400 per hour; Joan Herrington, co-counsel, $450 per hour; Marilyn Minger, contract counsel, $385 per hour; and David Hicks, fee counsel, $660/hr. All of the fees requested are based on out-of-district hourly rates, namely the Los Angeles and Bay Area markets, not the Fresno Division of the Eastern District of California.
Plaintiff filed his motion for attorney's fees on June 1, 2010. In support Plaintiff submitted: (1) a Memorandum of Points and Authorities; (2) the declaration of Mr. Eugene Lee; (3) the declaration of Joan Herrington; (4) the declaration of Marilyn Minger; (4) the declaration of David Hicks; (5) the declaration of Michelle Reinglass; (6) the declaration of Paul Greenberg; (7) the declaration of Chris Whelan; (8) the declaration of Jean Hyams; (9) the declaration of Lee Feldman; and (10) the declaration of Dean Gordon.
The County opposed the motion on July 8, 2010. Oral argument was held on July 28, 2010, at which time supplemental briefing was requested to give Plaintiff an opportunity to properly and adequately support his fee motion. The parties were also
"To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Dang v. Cross, 422 F.3d 800, 814 (9th Cir.2005). The Ninth Circuit requires:
D'Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir.1990) overruled on other grounds by Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).
The "relevant legal community" in the lodestar calculation is generally the forum in which the district court sits. Mendenhall, 213 F.3d at 471; Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997); Deukmejian, 987 F.2d at 1405. Another forum may be the proper relevant community, however, "if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case." Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.1997) (citation omitted). The court may rely on rates outside the local forum if the plaintiff establishes either unwillingness or inability; "[t]here is no requirement that plaintiffs prove both." Id. at 502.
On July 28, 2010, the Court expressed its tentative view that the Eastern District of California, Fresno Division, was the appropriate forum to establish the lodestar hourly rate in this case:
(RT, July 28, 2010 at 119:1-120:24.)
In his supplemental brief, Plaintiff argues that the tentative ruling is incorrect for a number of reasons, all of which lack merit and further demonstrate inexperience in trial work. Plaintiff first argues that "the Court should use the rates awarded to the plaintiff's employment law bar in Sacramento," i.e., employ Sacramento Division hourly rates. (Doc. 448 at 6:3.) It is suggested that because Defendant retained Sacramento counsel, Plaintiff is therefore entitled to Sacramento hourly rates. (See id. at 6:5-6:6 ("Defendant Kern County, itself, found it necessary to retain counsel from Sacramento.").) This argument has no merit. The only case cited in support is Moreno v. City of Sacramento, 534 F.3d 1106, which is factually distinguishable and not helpful to Plaintiff's arguments on this issue. Plaintiff has been unable to present any applicable or persuasive authority for the proposition that opposing counsel's billing region/forum furnishes the hourly billing rate for all counsel in a dispute overly the applicable hourly rate.
Plaintiff next argues that the tentative ruling is infirm because California law, not Federal law, controls the hourly rate analysis in this case.
Plaintiff relies on, but does not fully analyze, a number of Ninth Circuit cases to support his argument that California law controls the hourly rate analysis. Plaintiff correctly observes that Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 (9th Cir.1995) held that "[w]here a plaintiff moves for attorney fees on the basis of success on a state law claim, a federal court is to follow state law regarding both a party's right to fees and in the method of calculating fees." (Doc. 448 at 1:12-1:13.) Plaintiff, however, overlooks that, in Mangold, the Ninth Circuit did not analyze hourly rates generally or whether state law governs that analysis in circumstances applicable here and in a dual jurisdiction case. The Ninth Circuit's analysis in Mangold was limited to whether Plaintiff was entitled to a multiplier under California law.
The inadequacy of the "massive search" is further demonstrated by Mr. Lee's July 11, 2007 declaration, filed in conjunction with Plaintiff's unsuccessful motion to strike Defendant's fifth affirmative defense. In his declaration, which delineates his search to retain local counsel, Mr. Lee states that his search consisted of a mass email to CELA members, nothing more:
(Doc. 33 at ¶ 20.)
Such a limited and one-sided query does not satisfy the relevant "out-of-town" legal standards, federal or state. It is entirely possible, even probable, that Mr. Lee's bulk email was batched into a trash/junk folder or mistaken for spam and deleted by the recipient. Either explains the lack of response. However, this issue cannot be fully addressed as Mr. Lee did not follow-up with the intended recipients by any direct contact to any specific attorneys.
That is not the end of the analysis. A close review of the evidentiary support also reveals several inaccuracies and/or un-confirmed
A substantial portion of Plaintiff's "lack of local counsel" argument is based on a review of CELA's database in 2010, not in 2006. (Doc. 448-4, Decl. of C. Krasomil, ¶¶ 4-6.) It is unclear how a review of CELA members in Sacramento County in 2010 is relevant to Plaintiff's "massive search" for local counsel in September 2006 in the Fresno Division.
Kochenderfer v. Reliance Standard Life Ins. Co., No. 06-CV-620-JLS-NLS, 2010 WL 1912867 (S.D.Cal. Apr. 21, 2010) addressed a prevailing plaintiff's motion for attorney's fees. There, the Court found that the plaintiff's documentary evidence— including sworn declarations from numerous attorneys—was insufficient to support the requested hourly rates:
Id. at *3-4 (citations omitted).
Although Kochenderfer is not factually identical to this case, there are similarities.
The Eastern District of California, Fresno Division, is the appropriate forum to establish the lodestar hourly rate in this case. Plaintiff, who carries the burden on a fee motion, has not fully analyzed why Sacramento hourly rates are appropriate or why California law exclusively controls the hourly rate analysis in this case, especially in light of the general verdict form. In addition, Plaintiff has not provided adequate evidentiary support to demonstrate that the use of an attorney from outside the relevant community was necessary for purposes of charging another community's higher hourly rates. See, e.g., Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir.2007) (the party seeking fees "bears the burden of documenting the hours expended in the litigation and must submit evidence supporting those hours and the rates claimed.") (emphasis added) (citation omitted). For all of these reasons, as well as those discussed in open court on July 28, 2010, the Fresno Division is the appropriate forum to determine hourly rates.
Plaintiff requests an hourly rate of $400/hr for the services of attorney Eugene Lee. Mr. Lee graduated from law school in 1995 and was admitted to the New York State Bar in 1996. (Doc. 425-1 at ¶ 3.) Mr. Lee took a two-year hiatus from the practice of law in 1997. In 1999, Mr. Lee worked as counsel to a technology
Mr. Lee self-describes that he is an attorney with thirteen years of experience and has "an excellent reputation in the California employment law community and demonstrated skill and success." (Id. at ¶ 40.) He reiterates that he went to undergraduate school at Harvard University and that he successfully litigated a "a waiter's employment lawsuit in Los Angeles Superior Court for $350,000, even though the waiter had economic damages of only $50,000 and no significant emotional distress damages." (Id. at ¶¶ 41-42.) Mr. Lee declares that his hourly rate is $400 and "in fact [I have] been paid this rate by my clients since 2006 [. . .] Dr. Jadwin has paid me $400 per hour in the past for my legal services." (Id. at ¶ 44.)
Mr. Lee also represents that this "litigation proved to be extraordinarily complex, difficult and onerous for me." (Id. at ¶ 7.) It is undisputed that according to Mr. Lee this was his first trial in any court. (See RT, June 2, 2009 at 35:10-35:12) ("I must emphasize this is really my first trial and a lot of stuff is going on.").
In this Circuit, the reasonable hourly rate "is not made by reference to rates actually charged by the prevailing party," an attorney's undergraduate institution, or by the number of years spent as a practicing lawyer. See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir.2007); see also Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Rather, a reasonable hourly rate is determined by "experience, skill, and reputation." Welch, 480 F.3d at 946.
In a recent fee motion before the Court, Schultz v. Ichimoto, No. 1:08-CV-526-OWW-SMS, 2010 WL 3504781 (E.D.Cal. Sep. 7, 2010), it was determined that two very experienced employment litigation counsel—with more than twenty years of litigation experience each—were entitled to hourly rates of $305.00 and $255.00, respectively. To reach the hourly rates in Schultz, the Court catalogued the recent attorney's fee decisions in the Eastern District of California, Fresno Division, including Ruff v. County of Kings, 700 F.Supp.2d 1225 (E.D.Cal.2010), Beauford v. E.W.H. Group Inc., 2009 WL 3162249 (E.D.Cal. Sept. 29, 2009) and Wells Fargo Bank, Nat. Ass'n v. PACCAR Financial Corp., 2009 WL 211386 (E.D.Cal. Jan. 28, 2009). In those cases, it was determined that hourly rates of $350 (Beauford), $ 315 (PACCAR) and $300 (Ruff) were reasonable for "experienced and competent counsel."
The most reliable factor in determining a reasonable hourly rate is the ability and skill demonstrated by counsel. Mr. Lee was able to secure a jury verdict in his client's favor, but recovery was limited to approximately 12% of the economic damages he requested from the jury. Mr. Lee also asserted a number of unsuccessful claims in multiple amended complaints, which were eliminated by dispositive motion or rejected by the jury/Court; named numerous defendants who were later voluntarily eliminated from amended pleadings without explanation; displayed a tendency to take contrary legal positions (often in the same brief); and filed numerous unnecessary motions/supporting material. In all stages of this case, Mr. Lee exhibited inexperience with the Federal Rules of Civil Procedure, the Rules of Evidence, the federal and state legal frameworks and, notably, found it difficult
Mr. Lee was exceedingly contentious, unduly adversarial and expended inordinate time in personal conflicts and arguments with opposing counsel, many of which resulted in needless discovery and logistic motions which burdened scarce judicial resources. Some of Mr. Lee's conduct or confusion could be attributed to a skilled legal technician's attempts to preserve his case and foil opposing counsel. But that is not the case here. The unnecessary court proceedings and confusion were, for the most part, due to inexperience.
In light of the recent attorney's fee rulings in the Eastern District of California, Fresno Division,
A further consideration is Mr. Lee's unprofessional conduct throughout this case. He was unjustifiably rude, argumentative, and unreasonable in his dealings with opposing counsel, some of which entered into papers filed with the court and his interactions with court staff and the magistrate judge. Mr. Lee was treated with patience and courtesy. The Court has not based its fee award on this ground, although for the purpose of providing guidance and a example to counsel, it would be reasonable to do so.
Plaintiff requests an hourly rate of $450/hr for the services of attorney Joan Herrington, co-lead counsel. Ms. Herrington is a 1995 law graduate of Golden Gate University and has practiced employment law since she was admitted to practice in California that same year. (Doc. 425-2 at ¶¶ 3-6.) Ms. Herrington has worked as a workers' compensation associate and as principal in her own employment law firm. (Id. at ¶¶ 5-6.) According to Ms. Herrington, she "ha [s] been forced to proceed to trial in only eight cases [and] participated in four appeals as attorney of record, and one as a contract attorney." (Id. at ¶ 6.)
To support her motion, Ms. Herrington submits her own declaration as well as those of Christopher Whelan, Jean Hyams and Lee Feldman, all California employment law attorneys. These declarations set forth the following: (1) Ms. Herrington spent 839.9 hours on this case at a rate of $450/hr, including 413.6 hours drafting and reviewing pleadings, 126.6 hours attending depositions, and 61.6 hours attending court
In support of her fee motion, Ms. Herrington provides the declaration of Christopher Whelan. Mr. Whelan, a trial attorney and Ms. Herrington's CELA colleague, provides a summary of his trial history, including a number of sizeable verdicts obtained in Yolo and Sacramento County Superior Courts. Mr. Whelan provides a range for experienced counsel in the Eastern District, Sacramento Division, however, he does not provide a lodestar rate/range for attorneys with Ms. Herrington's experience in the Fresno Division. (See Doc. 425-7 at ¶ 9 ("$450.00 to $595.00 per hour for employment law trial counsel in Central and Northern California, including the Sacramento area.")) In addition, based on his declaration, Mr. Whelan's experience is limited to the state court system in Northern California, Alameda, Yolo, and Sacramento Counties. (Id. at ¶¶'s 5-8.) His declaration does not indicate litigation experience in any federal forum or in Calaveras, Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare or Tuolumne counties, the Fresno Division.
As discussed above, several district courts in the Eastern District of California, Fresno Division, have determined that hourly rates of $350 (Beauford), $ 315 (PACCAR), $305 (Schultz) and $300 (Ruff) were reasonable for "experienced and competent trial counsel."
Ms. Herrington's travel rate of $200 is not reduced.
Plaintiff requests an hourly rate of $385/hr for the services of contract counsel Marilyn Minger. Plaintiff contracted with Ms. Minger to draft two motions in limine, to exclude the testimony of two defense experts: Thomas McAfee, M.D. and Rick Sarkisian, Ph.D. Ms. Minger spent 20.4 hours drafting the motions for a total of $7,854.00. (Doc. 425-3 at ¶ 7.) Ms. Minger contends that "[b]oth motions were granted by court order dated July 29, 2009," however, that inadvertently electronically signed Order was vacated during the July 28, 2010 hearing. (Doc. 440, Minute Order, ("Order Granting Plaintiff's Motions in Limine 1-17 was STRICKEN for reasons as stated on the record.").) The Order granting the motions in limine was docketed in error, seven weeks after the jury returned their verdicts and is VACATED.
Ms. Minger is a 1991 law graduate of University of California at Davis and has practiced in the area of litigation since 1991, when she was admitted to practice in California. (Doc. 425-3 at ¶ 3.) Ms. Minger
In light of Schultz v. Ichimoto, 2010 WL 3504781 and Ruff v. County of Kings, 700 F.Supp.2d 1225, among other Fresno Division cases, as well as the evidence submitted by Plaintiff, a reasonable hourly rate for the services of contract attorney Ms. Minger, performing research attorney services, is $295/hour. This figure is within the range of hourly rates charged by the other attorneys as stated by Ms. Minger and consistent with the hourly rates other courts have approved for the services of attorney Ms. Minger. Ms. Minger's involvement was limited to drafting two motions in limine, which she did under contract. She has limited trial experience and does not indicate whether she has drafted motions in limine in the past or, alternatively, whether she has substantial motion experience. The July 29, 2009 Order granting the motions in limine was erroneously entered seven weeks after the jury returned their verdicts. It had no effect on the trial.
Plaintiff requests an hourly rate of $660/hr for the services of fee counsel David Hicks. Plaintiff retained Mr. Hicks to opine on the range of hourly rates in the various California forums, federal and state. Mr. Hicks spent 6.5 hours on this case, however, he reduced this amount to five hours based on billing judgment. (Doc. 425-4 at ¶ 20.)
Mr. Hicks is a 1972 law graduate of University of California at Davis and has practiced in the area of employment litigation for more than thirty years. (Id. at ¶ 3.) Mr. Hicks is an experienced expert witness. (Id. at ¶ 4.) Mr. Hicks' declaration provides rate and survey information for the following venues/law firms: San Francisco Superior Court, Los Angeles County Superior Court, U.S. District Court, Northern District of California, U.S. District Court, Eastern District of California, Sacramento Division, U.S. District Court, Central District of California, Bingham McCutcheon, Chavez & Gertler, Cohelan, Khoury, & Singer, Goldstein, Demchak, Baller, Borgen & Dardarian, Morrison Foerster, Quinn Emanuel LLP, Rosen, Bien & Galvan, Schneider Wallace Cottrell Konecky & Brayton, and Sturdevant Law Firm. (Id. at ¶ 18.) The ranges in Mr. Hicks' declaration are delineated by his experience only; he provides no knowledge of hourly ranges/rates in the Fresno Division. No Fresno Division law firms or employment lawyers were surveyed.
In light of the authorities discussed above and the evidence provided by Plaintiff, a reasonable hourly rate for the services of attorney David Hicks is $380/ hour. This figure is within the range of hourly rates charged by the other attorneys and consistent with the hourly rates other courts have approved for the services of fee counsel with similar experience to Mr. Hicks. The closest comparable to Mr. Hicks is the lead counsel for the prevailing party in Schultz v. Ichimoto, 2010 WL 3504781. Counsel in that case was 31-year lawyer, a preferred shareholder at a large Fresno law firm, and specialized in complex civil litigation and environmental law. Id. at *6-7. That individual was awarded a reasonable hourly rate of $305, substantially less than the rate Mr. Hicks is awarded in this case.
A graphical representation of the reasonable hourly rates for the legal services provided by Plaintiff's counsel in this case:
--------------------------------------------------------------------------------- Years Practicing Trial Rate Rate Type (as of 2009) Experience Sought Awarded --------------------------------------------------------------------------------- Eugene Lee Lead 11 None $400 $275 --------------------------------------------------------------------------------- Joan Co/Trial 14 Minimal—8 Herrington Counsel trials $450 $350 --------------------------------------------------------------------------------- Marilyn Contract 18 Minor—2 Minger trials $385 $295 --------------------------------------------------------------------------------- David Hicks Fee 30+ N/A $660 $380 ---------------------------------------------------------------------------------
Plaintiff seeks a multiplier of 2.0 times the lodestar. Plaintiff contends that a multiplier is necessary to the determination of a reasonable fee because the case involved "arcane and intellectually challenging" claims, was undesirable and precluded other employment. Plaintiff also asserts that counsel displayed great skill and "attained an outstanding result in this action."
Defendant vehemently disagrees with Plaintiff on each ground.
After making the lodestar computation, Courts sometimes assess whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of several factors, including:
At the outset, the requested fee multiplier is rejected for all the reasons cumulatively discussed in this Memorandum Decision and during oral argument on July 28, 2010. See Ketchum, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735 ("the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case."). Plaintiff has not come close to meeting his burden to demonstrate that the issuance of a multiplier—in addition to the requested lodestar amount—represents a "reasonable" award of attorney's fees in consideration of the claims for which an award of fee's is permitted. See Ketchum, 24 Cal.4th at 1138, 104 Cal.Rptr.2d 377, 17 P.3d 735 (the party seeking a fee enhancement bears the burden of proof).
Plaintiff has not established that he is entitled to a lodestar multiplier based on exceptional results.
The next factor is the skill in presenting the various relevant legal arguments. In Ketchum v. Moses, 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, 17 P.3d 735, the California Supreme Court stated that: "Courts should only award multipliers for exceptional representation when the quality of representation exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience." For the reasons discussed throughout this Memorandum Decision and other Orders/Memorandum Decisions on file in this case, Plaintiff's counsel's representation was far from exceptional. His inexperience and unduly disputatious nature required special judicial attention as evidenced by the post trial motions it engendered. The qualifications and skill level of Plaintiff's counsel were fully considered in determining the original lodestar figure. Based on conduct, experience, and success rate on all motions and trial, Mr. Lee is in the lowest quartile of trial attorneys appearing in this Court. This factor weighs heavily against awarding a multiplier.
The same reasoning applies to Plaintiff's characterization of this case as novel and "inherently challenging." A review of the record indicates that the case was a garden-variety employment case involving mental disability under state and federal Family Leave Acts and constructive termination claims. Before the lawsuit, Plaintiff was paid his full contract compensation, except as department Chair and additional professional fee income he could not earn because was on medical leave. The litigation and trial were contentious and required fact gathering, but did not involve any novel or particularly complex legal issues. The employment and disability issues inherent to this litigation have been litigated many times and the law on the subject is well-established. A disproportionate amount of the "complexity" in this case was a direct result of Plaintiff's counsel's difficulty grasping the relevant legal principles (and the Court's Orders) and his total inability to observe his professional responsibilities to aid the court, be courteous and respectful to all, and not to unnecessarily multiply the proceedings. Plaintiff's lead counsel, Mr. Eugene Lee, provides the last word: "[This] litigation proved to be extraordinarily complex, difficult and onerous for me." (Doc. 425-1 at ¶ 7) (emphasis added). No multiplier to the lodestar amount is justified based on the alleged uniqueness or complexity of the case.
Plaintiff also argues that he is entitled to a multiplier because of the contingent risk of the litigation. The Court in Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 74 Cal.Rptr.2d 510 (1998), a case involving a request for attorney's fees and a multiplier
Id. at 1175, 74 Cal.Rptr.2d 510.
That language applies with equal force to the facts of this case. Cf. Ketchum, 24 Cal.4th at 1138, 104 Cal.Rptr.2d 377, 17 P.3d 735 ("[t]he trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk."). Moreover, Plaintiff's lead counsel has mentioned in his declarations that Dr. Jadwin, who continued to receive his contract rate of compensation thru the end of the term of his contract, has paid Plaintiff's counsel for legal services, although the full amount paid is not described.
Plaintiff argues that a multiplier is justified because counsel had to turn down other work for handling this case. But Plaintiff's counsel have not provided any specific examples for work they turned away. Mr. Lee has identified no cases or prospective clients. In any event, the hours counsel spent on this case will be compensated.
Applying these factors, a multiplier is not appropriate under the totality of the circumstances in this case. The litigation was not exceedingly novel and counsel did not demonstrate "exceptional skill." Plaintiff prevailed on nine causes of action, however, it translated into a monetary award of less than 12% of the amount he requested the jury award. Even if there was some contingency risk involved, it in no way merits a multiplier.
Plaintiff's string citation to "reasonable fee" and "multiplier" cases does not assist. For example, Plaintiff cites Green v. City of Los Angeles, a Los Angeles Superior Court decision, stating: "the court [in Green] awarded costs of $35,000 and attorney's fees of $461,500.00, using a multiplier of 2.0." (Doc. 425 at 23:9-23:10.) This citation—and others—are unpersuasive. Courts in California (federal and state) have awarded multipliers greater than one for successful cases brought under federal and state law, placing special emphasis on the exceptional results obtained. See, e.g., Leuzinger v. County of Lake, 2009 WL 839056, at *10-11 (in a disability and employment discrimination case, awarding a 2.0 multiplier based on exceptional results-jury award of $1,679,001); Donovan v. Poway Unified School Dist., 167 Cal.App.4th 567, 628, 84 Cal.Rptr.3d 285 (2008) (awarding a 1.25 multiplier in light of the case's difficulty and risk, but declining to grant the 1.7 multiplier plaintiffs had requested). However, when a case did not present novel or complex issues or counsel's skill was unexceptional, the courts have not awarded a multiplier. See, e.g., James v. Cardinal Health 200 Inc., No. ED-CV-09-00695-JRG-SHx, 2010 WL 4796931, at *4 (C.D.Cal. Nov. 22, 2010) ("The plaintiff has not established that she is entitled to a lodestar multiplier [] [a] review of the record indicates that the case did not involve any novel or particularly complex issues."); see also Perez v. Safety-Kleen Systems, Inc., No. C-05-5338 PJH, 2010 WL 934100, at *9 (N.D.Cal. Mar. 15, 2010)
Three trial exchanges are illustrative. The first took place on June 2, 2009, during Mr. Lee's cross-examination of Mr. Robert Burchuk, the County's forensic psychiatrist:
(RT, June 2, 2009, 24:15-25:13) (emphasis added).
A short time later, after excusing the jury, Mr. Lee was instructed on the rules of courtroom decorum and tenets of professionalism relevant to cross-examination, in particular, that examining counsel shall not repeat, echo or comment on the witness' statements:
Mr. Lee: Yes.
(Id. at 33:13-35:19.)
The final illustration is Mr. Lee's "big versus small" reference during closing argument, which improperly appealed to bias and emotion. Mr. Lee's comments and the Court's sua esponte admonition were discussed in section III(A), supra, in the context of the County's motion for a new trial.
Plaintiff's request for application of a 2.0 multiplier is DENIED. No multiplier was earned as not one of the justifying factors is present.
Plaintiff requests "reasonable fees" to compensate his counsel for the preparation of the motion for attorney's fees. According to Ms. Herrington, she spent 56.3 preparing the "first" fee petition. Mr. Hicks, Plaintiff's fee counsel, spent five hours preparing his declaration. Mr. Lee, however, does not provide a separate task total or an explanation why one was not included.
For all the reasons discussed in this Memorandum Decision and during July 28, 2010's oral argument, Mr. Lee is awarded no "fees on fees." He is awarded ten hours time for his travel and attendance at the July 28, 2010 hearing, nothing more.
Mr. Lee's post-trial briefing was underdeveloped and willfully, perhaps intentionally, non-responsive to the Court's requests for supplemental billing information, which were expressly made to afford Plaintiff a full opportunity to justify and prove his attorney's fees request and to comply with Ninth Circuit law. The relevant legal standards for fee motions were not addressed or taken into consideration. This course of conduct had a considerable impact on the Court's ability to resolve the fee issues in a correct and timely manner. More critical to the analysis, Mr. Lee did not consider the impact his actions had on the County's ability to oppose the motion. His conduct placed the County at a considerable disadvantage.
Plaintiff is only entitled to recover fees that are reasonable. See Serrano, 32 Cal.3d at 635, 186 Cal.Rptr. 754, 652 P.2d 985; Ketchum, 24 Cal.4th at 1137, 104 Cal.Rptr.2d 377, 17 P.3d 735. With respect to "fees on fees," that number is ten hours. Mr. Lee, however, is awarded an additional 15 hours for the time spent preparing the other post-trial motions, for a post-trial total of 25 hours.
To account for the general lack of detail and excessive time spent preparing the original fee motion, among other concerns, Ms. Herrington is awarded 20 hours for time spent on the original attorney's fee motion, including travel and attendance at the July 28, 2010 hearing. Mr. Hicks is awarded four hours.
No additional "fee on fee" time is awarded, i.e., no time is awarded to any counsel concerning the supplemental fee motions/replies, which were necessitated by Plaintiff's counsel's failure to properly support and document the motion.
------------------------------------------------------------------------ NAME HOURS HOURLY RATE LODESTAR AMT
------------------------------------------------------------------------ Lee 1,477.8 (not $275 $ 406,395.00 including travel) ------------------------------------------------------------------------ Lee (travel) 13.8 $200 $ 2,760.00 ------------------------------------------------------------------------ Herrington 326.5 (not $350 $ 114,275.00 including travel) ------------------------------------------------------------------------ Herrington (travel) 39 $200 $ 7,800.00 ------------------------------------------------------------------------ Minger 10.0 $295 $ 2,950.00 ------------------------------------------------------------------------ Hicks 4.0 $380 $ 1,520.00 ------------------------------------------------------------------------ ------------------------------------------------------------------------ TOTAL 1,871.1 $ 535,700.00 ------------------------------------------------------------------------
Judges are experts in the matter of attorney's fees. See, e.g., Hancock Laboratories, Inc. v. Admiral Ins. Co., 777 F.2d 520, 525 (9th Cir.1985).
For all the reasons stated above:
Plaintiff shall submit a form of order consistent with, and within five (5) days following electronic service of, this Memorandum Decision.
SO ORDERED.
(RT, July 28, 2010, 121:4-121:15.)
Plaintiff requested $3,944,818 in fees in his original motion, filed on June 1, 2010. (Doc. 425.)
(RT, June 2, 2009, 35:8-35:13.)
(RT, July 28, 2010 at 80:18-80:23.)
Jadwin v. County of Kern, 2010 WL 1267264, at 11 (E.D.Cal.2010).
(Doc. 319.)
While mindful of this language and without elevating form over substance, it is not unreasonable to request more detailed post-trial billing records to calculate an accurate lodestar. See, e.g., Fischer v. SJB-P. D. Inc., 214 F.3d at 1121.
(Doc. 321 at 5:8-5:15.)
Mr. Lee states that he contacted a "Mr. Andrew Jones" by telephone. (Doc. 425-1 at ¶ 29.) Mr. Jones allegedly declined to act as local counsel. (Id.) Mr. Lee provides no further explanation or discussion. (Id.) Mr. Jones did not provide a declaration in this case.
(Doc. 450 at 19:25-19:28.)
Defendant correctly observes that 230.8 hours of claimed correspondence time is "unusually high." See Miller v. Alamo, 983 F.2d 856, 859 (8th Cir.1993) (finding that 95 hours spent on "attorney conferences, telephone calls, and reviewing correspondence from the government and this court" was "an unusually high number of hours."). The time billed for drafting correspondence to Plaintiff/co-counsel and answering Plaintiff's phone calls, among others, is not reasonable in this case. Moreover, because of the inadequate documentation, Plaintiff's counsel has not explained why such extensive correspondence and status updates were required in the first instance (or why a second, or in some cases third, client contact or update was required). To the extent possible, the time spent corresponding between counsel and client was accounted for in the original lodestar amounts, namely in the "manifestly ineligible" and "dispositive motion" sections of this Memorandum Decision. Contrary to Defendant's arguments, however, there is no reason to further reduce the lodestar amount beyond the original reductions. Any excessive correspondence and communication between Mr. Lee and his client has been accounted for. Any further reduction is duplicative and unnecessary. Defendant's other concerns are adequately addressed in the multiplier analysis.
(RT, June 4, 2009, 81:10-81:17.)
The Court, sua sponte, immediately instructed the jury to disregard Mr. Lee's statement:
(RT, June 4, 2009, 81:23-82:1.)
