United States District Court, D. Nevada
ORDER (DOCKET NO. 304)
J. KOPPE United States Magistrate Judge
February 23, 2017, Plaintiff filed a motion for sanctions
against Defendant Tessier (“Defendant”). Docket
No. 238. Plaintiff asked the Court to award it attorneys'
fees and costs caused by Defendant's failure to appear at
a duly noticed deposition on December 15, 2016. See,
e.g., id. at 2. On April 5, 2017, the Court
granted in part Plaintiff's motion. Docket No. 267. The
Court determined that an award of fees and costs in this
instance is just and that Defendant's failure to attend
his deposition was not substantially justified. Id.
at 3-4. However, the Court also found that it had
insufficient information with which to conduct the relevant
analysis. Id. at 5-6. The Court therefore ordered
Plaintiff to file, no later than May 5, 2017, a renewed
motion for attorneys' fees that provides all information
necessary under the Rules and the case law for the Court to
conduct a proper analysis. Id. at 6.
pending before the Court is Plaintiff's renewed motion
for attorneys' fees. Docket No. 304. Defendant filed a
response and Plaintiff filed a reply. Docket Nos. 318, 326.
The only issue before the Court is the reasonableness of the
fees requested. The Court finds this motion properly resolved
without oral argument. See Local Rule 78-1. For the
reasons discussed below, the Court awards attorneys' fees
of $2, 238.20 and declines to award the costs requested.
attorneys' fees are generally calculated using the
traditional “lodestar” method. See,
e.g., Camacho v. Bridgeport Fin'l, Inc.,
523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar method,
the Court determines a reasonable fee by multiplying
“the number of hours reasonably expended on the
litigation” by “a reasonable hourly rate.”
See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The lodestar figure is presumptively reasonable.
Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 488
(9th Cir. 1988).
party seeking an award of attorneys' fees bears the
burden of establishing the reasonableness of the hourly rates
requested. Camacho, 523 F.3d at 980. “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,
895 n.11 (1984). “Affidavits of the [movant's]
attorney and other attorneys regarding prevailing fees in the
community, and rate determinations in other cases,
particularly those setting a rate for the [movant's]
attorney, are satisfactory evidence of the prevailing market
rate.” United Steelworkers of Am. v. Phelps Dodge
Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may
also rely on its own familiarity with the rates in the
community to analyze those sought in the pending case.
Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.
case, Plaintiff seeks a rate of $325 per hour each for
Gregory T. Lawrence, a partner at Conti Fenn & Lawrence,
and Michael R. Kealy, Vice-President of Parsons Behle &
Latimer. Docket Nos. 304-1 at 3, 304-2 at 3. Plaintiff also
attaches biographies for these two attorneys, attesting to
their educational backgrounds and some of their
accomplishments. Docket Nos. 304-3, 304-4. Plaintiff seeks a
rate of $225 per hour for Kyle S. Kushner, an associate
attorney in Mr.
firm, and provides information about Mr. Kushner's
background. Docket Nos. 304-1 at 3, 304-5. Finally, Plaintiff
seeks a rate of $135 per hour for Tanya M. Metz, a paralegal
in Mr. Lawrence's firm, and provides information about
Ms. Metz's background. Docket Nos. 304-1 at 3, 304-6.
Defendant does not dispute the reasonableness of these rates,
see, e.g., Docket No. 318 at 2, the Court
independently examines their reasonableness. The Court finds
that the rates requested for Mr. Lawrence and Mr. Kealy are
reasonable. Mr. Kushner, however, is an associate attorney
with only one year and five months of experience. Docket No.
304 at 5. Accordingly, the Court finds a rate of $150 per
hour reasonable for an associate with Mr. Kushner's
experience. The Court need not determine the reasonableness
of Ms. Metz's rate, as the Court finds that her time was
not shown to have been reasonably spent due to
Defendant's failure to appear at his deposition.
decided the hourly rates that should be applied in this case,
the Court turns to the hours reasonably expended. The Court
“has a great deal of discretion in determining the
reasonableness of the fee and, as a general rule, [an
appellate court] will defer to its determination . . .
regarding the reasonableness of the hours claimed by the
[movant].” Prison Legal News v.
Schwarzenegger, 608 F.3d 446, 453 (9th Cir. 2010)
(quoting Gates v. Deukmejian, 987 F.2d 1392, 1398
(9th Cir. 1992)). In reviewing the hours claimed, the Court
may exclude hours related to overstaffing, duplication, and
excessiveness, or that are otherwise unnecessary. See,
e.g., Hensley, 461 U.S. at 433; see also
Cruz v. Alhambra Sch. Dist., 601 F.Supp.2d 1183, 1191
(C.D. Cal. 2009) (“the Court must eliminate from the
lodestar time that was unreasonably, unnecessarily, or
seeks to recover fees for 23.7 hours of work by Mr. Lawrence,
0.6 hours of work by Mr. Kealy, 6.2 hours of work by Mr.
Kushner, and 4.3 hours of work by Ms. Metz. See
Docket Nos. 304-7, 304-9, 304-10. Defendant submits that
Plaintiff seeks to recover fees that are outside the scope of
the Court's order, including work performed in
preparation for his co-defendant's deposition; work
performed in preparation for Defendant's December 15,
2016 deposition that was then useful to his deposition in
February 2017; and travel fees and expenses that were
incurred on account of both defendant and his co-defendant.
See Docket No. 318 at 2-6. Defendant therefore
submits that certain fees and expenses should not be granted,
while others should be reduced. Id. at 3-7.
Plaintiff replies that all of the fees it seeks to recover
relate to Defendant, that it is irrelevant whether its
counsel were able to re-use preparation work, and that its
travel fees are attributable to Defendant. See
Docket No. 326 at 2-5.
Court finds that several entries in the billing records
submitted by Plaintiff do not reflect work necessitated by
Defendant's failure to appear at his deposition, and that
certain entries reflect work that was useful to
Defendant's February 2017 deposition. See Docket
No. 304-7 at 4, 6-11. Additionally, both Defendant and his
co-defendant caused many of the travel-related fees. The
Court therefore determines that Mr. Lawrence reasonably spent
5.7 hours; Mr. Kealy reasonably spent 0.2 hours; and Mr.
Kushner reasonably spent 2.1 hours of work as a result of
Defendant's failure to appear at ...