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Avendano v. Security Consultants Group

United States District Court, District of Nevada

April 2, 2015

ISAAC AVENDANO, et al., Plaintiffs,


Before the court is plaintiffs’ motion for attorney fees and costs (#133). Union defendants oppose the amount (#138). Plaintiffs replied (#142). For the reasons discussed herein, the court grants plaintiffs’ motion in the amount of $118, 720.59.


On December 2, 2014, this court ordered plaintiffs to file a motion for attorney fees (#124) (“The December order”). The December order followed an earlier order to show cause (#105) against union defendants and their counsel, Robert B. Kapitan (“Kapitan”). The show cause order resulted from several inconsistent statements Kapitan made to the court during a year of on-going motion practice relating to plaintiffs’ counsel representation of plaintiffs, and also professional conduct proceedings before the Ohio Supreme Court’s Office of Disciplinary Counsel (“ODC”), which considered disqualification of plaintiffs’ counsel in fall 2013.

At a January 10, 2014 emergency hearing, Kapitan first misrepresented to the court the status of the ODC matter. Based upon his representations, the court stayed its prior scheduling and discovery orders.[1] In the following year, and as a result of his prior and continuing representations, the parties engaged in time-consuming and unmeritorious motion practice- including a motion to disqualify, sanctions motions under Rule 11 and section 1927, and several motions to seal and for in camera review related to exhibits to these motions. Aside from airing their mutual animosities, the parties accomplished little else. Following its orders on plaintiffs’ sanctions motions in September 2014, the court issued a show cause order. Therein, the court ordered union defendants and Kapitan to explain why they and/or he should not be sanctioned for his misrepresentations about the ODC matter.

On December 2, 2014, the court found by clear and convincing evidence that Kapitan had intentionally misrepresented the status of the ODC complaint against plaintiffs’ counsel, and that he further failed to comply with his ethical obligations to the court to correct his misrepresentations, had they been unintentional, when several opportunities presented. Although the court is loath to utilize its power to sanction counsel who appear before it, the court concluded that Kapitan’s conduct required its intervention. Consequently, the court awarded attorneys’ fees to plaintiffs and levied other sanctions, including referral to the ODC for further disciplinary action as it deems appropriate.

As to fees, the court ordered: “Within twenty-one (21) days of the entry of this order, plaintiffs shall file a motion describing costs and fees associated with: costs and fees associated with: (1) filing the sanction motions; (2) responding to the court’s show cause order; (3) postponement of the January 2014 ENE; and (4) other costs directly attributable to Kapitan’s January 10 misrepresentations, as plaintiffs contemplated in their response to defendants’ show cause brief.” (#124 at 20) (emphasis removed). Plaintiffs moved for fees, and the parties submitted briefing. Having reviewed the motion and the parties’ positions, this order follows.


Calculation of reasonable attorneys’ fees is a two-step process. First, the court computes the “lodestar” figure, which multiplies a reasonable hourly rate by the number of hours reasonably expended in the litigation. Carter v. Caleb Brett LLC, 757 F.3d 866, 868 (9th Cir. 2014). The lodestar amount is presumptively correct. Mendez v. Cnty. of San Bernadino, 540 F.3d 1109, 1129 (9th Cir. 2008). Second, and despite the presumption, the court may modify the lodestar amount. Carter, 757 F.3d at 869 (citing Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir 1988) for the relevant factors, as first articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975)). In this District, the Kerr factors are incorporated into Local Rule 54-16.


a. Summary of the Parties’ Positions

Plaintiffs’ motion seeks $300, 843.60 in fees and costs. Plaintiffs’ counsel have included a timesheet (#133-3) identifying the tasks that they believe fall within the ambit of the December order, and documentation regarding certain travel costs. They seek hourly rates of $550 for partner John A. Tucker, $325 for associate Rachel Baldridge, and $400 for local counsel Ian Silverberg, for hours respectively totaling 287.75, 419.30, and 13.8. (#133 at 4-5; #133-3 at 15.) The motion also requests costs of $741.30 for adjustment of travel, and also interest on these amounts at a rate of 3.25 percent. (Id. at 17-18.)

Union defendants challenge the amount on several bases. First, they argue that recoverable fees are limited to services “directly attributable” to the January 10 statements under the terms of the December order. Defendants contend that plaintiffs’ motion disregards this limitation by including services relating to discovery, the motion to disqualify, non-relevant sanctions motions, and other miscellaneous motions. (#138 at 6.) Second, they argue that counsels’ invoice is inadequately “broken down” such that “there is no way to know whether time spent on the sanctions motions involved the claims for sanctions related to the January 10 representations . . . .” (Id.) Third, and relatedly, union defendants contend that any time claimed for the Rule 11 motion is improper, and only a portion of the 1927 is recoverable. (Id.)

Fourth, they claim that the number of hours claimed is unreasonable. (Id. at 10-11.) Fifth, they request that no time be recoverable for the postponement of the January 2014 ENE, because postponement, in their view, “was due mainly to the filing of the Motion to Disqualify and not to the January 10 misrepresentations . . . .” (Id. at 11.) Sixth, union defendants argue that the hourly rates requested are not reasonable in this market. (Id. at 12.) Here, they argue that plaintiffs have “cherry-picked” cases in support of the requested rates, and that they, as plaintiffs’ counsel, cannot rely on cases allowing higher rates for defense counsel. (Id.) Seventh, they argue that plaintiffs have inadequately supported and explained their request for costs attributable to travel, and therefore, only $10 in costs is appropriate. (Id. at 17-19.) Eighth, they argue that plaintiffs have failed to provide authority for their request for interest. (Id. at 19.) Finally, ...

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