Wilson v. Decibels of Or., Inc.

DANIEL WILSON, Plaintiff, v. DECIBELS OF OREGON, INC.;

DENNIS SNYDER; LEO BROWN, Defendants.

RYAN HEMMING, Plaintiff, v. DECIBELS OF OREGON, INC.; DENNIS SNYDER; LEO BROWN, Defendants.

Civ. No. 1:17-cv-01558-MC

Civ. No. 1:17-cv-01624-MC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION

November 22, 2019

OPINION & ORDER

McSHANE, District Judge.

This matter comes before the Court on Motions for Attorney Fees and Costs filed in Wilson v. Decibels of Oregon et al., Case No. 1:17-cv-01558-MC (the "Wilson case,"), ECF No. 39, and Hemming v. Decibels of Oregon, Inc., Case No. 1:17-cv-01624-MC (the "Hemming case,"), ECF No. 41. Although these cases were filed separately, they involve the same Defendants, the same counsel, and present identical arguments. The Court concludes that the issue of attorney fees and costs is appropriately resolved in a consolidated Opinion and Order to be entered in each case. The Court further concludes that this issue is appropriate for resolution without oral argument. Plaintiffs' Motions are GRANTED in part and DENIED in part.

BACKGROUND

I. The Matthew Wilson Case

Both Hemming and Wilson sought to join an earlier Fair Labor Standards Act ("FLSA") collective action, Matthew Wilson v. Decibels of Oregon, Inc. et al., Case No. 1:16-cv-00855-CL (the "Matthew Wilson case,"), as opt-in plaintiffs. The Matthew Wilson case involved the same attorneys as the present case and, with the exception of Leo Brown, was directed against the same defendants as the present case. Magistrate Judge Clarke recommended that the motion to certify a collective action class in the Matthew Wilson be denied and this Court adopted that recommendation, over objections. Wilson and Hemming filed their own cases shortly after the denial of certification, as discussed below.

The Matthew Wilson case was set for trial on May 22, 2018. On April 16, 2018, the Matthew Wilson plaintiff accepted an offer of judgment and judgment was entered on April 24, 2018. On August 14, 2018, Judge Clarke granted in part and denied in part the Matthew Wilson plaintiff's motion for attorney fees.

II. Procedural History

The Wilson case was filed on October 2, 2017, and the Hemming case was filed shortly afterwards on October 15, 2017. Both cases alleged claims for unpaid overtime under the federal Fair Labor Standard Act ("FLSA") and Oregon overtime statutes, ORS 653.055 and ORS 652.150. Litigation in both cases followed identical courses.

Defendants filed partial motions to dismiss in December 2017, which the Court granted in part and denied part. Amended Complaints were filed in February 2018. Defendants filedpartial motions for summary judgment in each case in September 2018, which the Court granted in part and denied in part on January 31, 2019.

Discovery issues were submitted informally, according to the practice of this Court, and resolved in Defendants' favor by minute order on June 15, 2018. Plaintiffs then filed motions to compel in each case on January 18, 2019, which the Court denied on May 20, 2019.

On July 17, 2019, Hemming accepted an offer of judgment for $15,000 and Wilson accepted an offer of judgment for $12,500, "plus reasonable attorney fees and costs incurred as of the date of the this Offer as determined by the Court pursuant to FRCP 54(d)." The offers of judgment were dated July 3, 2019. Final judgment was entered in both cases on August 1, 2019. These motions for attorney fees and costs followed.

LEGAL STANDARDS

The Ninth Circuit has adopted the "lodestar" method for calculating attorney fees. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). That calculation multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986). The court must then decide whether to enhance or reduce the lodestar figure by evaluating a number of factors. Moreno v. City of Sacremento, 534 F.3d 1106, 1111 (9th Cir. 2008).

The court may adjust the lodestar to account for factors such as: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the resultsobtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). The court need only consider the factors not already subsumed in the initial lodestar calculation. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000).

There is a strong presumption that the lodestar method produces a reasonable figure and should only be enhanced or reduced in exceptional circumstances. Fischer, 214 F.3d at 1119 n.4. Courts have discretion, however, to adjust the lodestar figure either: (1) downward if the plaintiff has achieved only partial or limited success or if the fee is otherwise unreasonable, Hensley, 461 U.S. at 435-36, or (2) upward in "rare" and "exceptional" cases. Del. Valley Citizens, 478 U.S. at 565.

DISCUSSION

Plaintiffs seek an attorney fee award of $95,540.00 for both cases, plus additional fees for litigating the present motions. As discussed in the preceding section, the litigation of these cases and the Matthew Wilson case overlapped substantially. Given the close similarity between the Matthew Wilson case and the Wilson and Hemming cases, and the fact that the cases involved the same attorneys, the Court considered Judge Clarke's Opinion and Order on attorney fees to be especially persuasive in considering the present motions. The Court notes, however, that the Matthew Wilson case was resolved practically on the eve of trial after considerable discovery, depositions, and motions practice. The Wilson and Hemming cases were resolved much earlier. There have been no depositions in these cases and only limited motions practice.

Defendants acknowledge that Plaintiffs are entitled to fees and costs, but object to both the rate charged by Plaintiffs' counsel and the hours expended in these cases.

I. Attorney Fees

A. Reasonable Hourly Rate

A reasonable hourly rate is determined by looking at "prevailing market rates in the relevant community," as well as the skill, experience, and reputation of the lawyer. Blum v. Stenson, 465 U.S. 886, 895 (1984); United States v. $28,000 in U.S. Currency, 802 F.3d 1100, 1105 (9th Cir. 2015). The party requesting the fees has the burden of producing "satisfactory evidence," in addition to the affidavits of counsel, that the requested rates are in step with those "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Dang v. Cross, 422 F.3d 800, 814 (9th Cir. 2005) (internal quotation marks and citation omitted). The best evidence of the prevailing rates in Oregon is the Oregon State Bar Economic Survey, most recently issued in 2017. LR 54-3; Roberts v. Interstate Distrib. Co., 242 F. Supp.2d 850, 857 (D. Or. 2002); Mumford v. Electric Inst., Inc., Case No. 3:15-cv-00375-AC, 2016 WL 8711693, at *2 (D. Or. April 29, 2016).

1. Quinn Kuranz

Plaintiffs' counsel Quinn Kuranz claims a rate of $360 per hour. Kuranz specializes in employment law and has been admitted to practice since 2011. In the Matthew Wilson attorney fee decision, Judge Clarke determined that the Portland rates were an appropriate starting point for assessing the reasonableness of Kuranz's rates, rather than the southern Oregon rates, and the Court adopts that reasoning. Judge Clarke approved a rate of $300 for Kuranz and, given the substantial overlap between the Matthew Wilson case and the present cases, and the fact that the decision was issued barely a year ago, the Court finds Judge Clarke's reasoning persuasive.¹ TheCourt notes that $300 is slightly above the median rate ($280) and mean rate ($282) for attorneys with seven to nine years of experience in the Portland area. The Court further notes that $300 represents the 75th percentile for Oregon attorneys with the same level of experience. Accordingly, the Court concludes that $300 is reasonable rate for Kuranz.

2. Bonnie Allen-Sailer

Plaintiffs hired attorney Bonnie Allen-Sailer to assist in the completion of Plaintiffs' motions to compel. Plaintiffs seek a rate of $300 per hour for Allen-Sailer. Allen-Sailer has been in practice since 2014. Kuranz Decl. Ex. 12. The mean rate for a Portland attorney with Allen-Sailor's experience is $249 with a median rate of $250. Statewide, $257 represents the 75th percentile for Oregon attorneys with the same level of experience. The Court finds that $250 is a reasonable hourly rate for Allen-Sailer.

3. Paralegal Fees

Kuranz was assisted by paralegal Kathryn Arnett and "legal assistant/law clerks" Clara Toso and Christina Montes. Plaintiffs seek to recover fees for the work performed by all three at a rate of $110. Defendants contend that, to the extent the fees are recoverable at all, they should be billed at $20 per hour.

The Oregon State Bar Economic Survey does not include information about hourly rates charged by paralegals in Oregon. In assessing claims for paralegal fees, courts within this District have noted that "a reasonable hourly rate for a paralegal should not exceed that of a first year associate." Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F. Supp.2d 1228, 1248 (D. Or. 2013). That determination is not the end of the inquiry, however, as "the attorney hourlyrate is used as a ceiling and is not by itself determinative of a reasonable hourly rate." Id....