Chapman v. Prescott Station Incorporated ( 2019 )

1 WO 2 NOT FOR PUBLICATION 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Chapman, No. CV-19-08208-PCT-DJH 10 Plaintiff, ORDER 11 v. 12 Prescott Station Incorporated, et al., 13 Defendants. 14 15 Pending before the Court is the parties’ Second Joint Motion to Approve the FLSA 16 Settlement (“Second Motion”) (Doc. 18) and Plaintiff’s Unopposed Motion for Approval 17 of Attorney’s Fees and Costs (“Fee Motion”) (Doc. 19). In a prior Order the Court found 18 that a bona fide FLSA dispute existed and that Plaintiff’s total recovery of $669.781 was 19 fair, reasonable, and adequate and in the best interest of Plaintiff in light of all known facts 20 and circumstances. (Doc. 17 at 3). However, the Court denied the parties’ First Joint 21 Motion to Approve the FLSA Settlement (“First Motion”), because the requested 22 attorney’s fee award appeared to be unreasonable and Plaintiff failed to provide any billing 23 records, a contingency fee agreement, or any other evidence to suggest that the requested 24 attorney’s fee award was reasonable. (Id. at 3-5). 25 Having already found the Settlement Agreement to be fair and reasonable, the Court 26 will now address the requested attorney’s fee award. A party requesting an award of 27 1 The Settlement Agreement provides that in addition to the $238.48 Defendants already 28 paid Plaintiff for his unpaid wages, Defendants will pay Plaintiff an additional $431.30 to settle his claim for liquidated damages. Thus, the total settlement amount is $669.78. 1 attorney’s fees must show that it is (a) eligible for an award, (b) entitled to an award, and 2 (c) requesting a reasonable amount. See LRCiv 54.2(c). Plaintiff argues, and the Court 3 agrees, that pursuant to FLSA, Plaintiff is entitled to reasonable attorney’s fees and costs. 4 29 U.S.C. § 216(b). Plaintiff’s attorney began working on this case on July 5, 2019, filed 5 the Complaint on July 16, 2019, and accepted a settlement offer by August 28, 2019. The 6 Settlement Agreement awards Plaintiff his unpaid wages ($238.48), liquidated damages 7 ($431.30), and attorney’s fees and costs ($4,568.70). (Doc. 18-1 at 2-3). Plaintiff contends 8 that his requested award of attorney’s fees and costs of $4,568.70 is reasonable, and further 9 provides that the requested award is comprised of $568.70 in costs and 12.8 hours of work 10 by Plaintiff’s attorney, Mr. Clifford P. Bendau, II. 11 To determine the reasonableness of requested attorney’s fees, federal courts 12 generally use the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); 13 United States v. $186,416.00 in U.S. Currency, 642 F.3d 753, 755 (9th Cir. 2011). The 14 Court must first determine the initial lodestar figure by taking a reasonable hourly rate and 15 multiplying it by the number of hours reasonably expended on the litigation. Blanchard, 16 489 U.S. at 94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court next 17 “determines whether to modify the lodestar figure, upward or downward, based on factors 18 not subsumed in the lodestar figure.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 19 2016). “These factors are known as the Kerr factors.” Stetson v. Grissom, 821 F.3d 1157, 20 1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 21 1975)). Such an adjustment is appropriate “only in rare or exceptional circumstances.” 22 Cunningham v. City of L.A., 879 F.2d 481, 488 (9th Cir. 1988). 23 Plaintiff’s attorney, Mr. Bendau, II, was hired on a contingency basis with a fee 24 agreement that included a flat rate of $395.00 per hour. (Doc. 19-4). Plaintiff argues that 25 his attorney’s billing rate is reasonable and provides that a court in this district recently 26 determined as much. (Doc. 19 at 5) (citing Order, Knapp v. Invictus Protective Services 27 LLC, et al., No. 2:19-cv-00878 (D. Ariz. June 7, 2019), ECF No. 21 (finding that an hourly 28 rate of $395.00 was a reasonable for Mr. Bendau, II.)). However, Plaintiff fails to mention 1 that another court in this district recently found that $395.00 was an unreasonable billing 2 rate for Mr. Bendau, II. See Outland v. Arizona Movers & Storage, 2019 WL 2269423, at 3 *1 (D. Ariz. May 28, 2019) (finding that although $395.00 per hour was an unreasonable 4 billing rate, the plaintiff had demonstrated that a billing rate of $325.00 per hour was 5 reasonable for Mr. Bendau, II). Although, it appears from the requested award that 6 Plaintiff’s counsel has already reduced his billing rate for this matter from $395.00 per 7 hour to $312.50 per hour.2 The Court finds that Plaintiff has sufficiently shown that 8 $312.50 per hour is a reasonable rate for Mr. Bendau, II, and therefore, the Court need not 9 decide the reasonableness of $395.00 per hour. 10 After considering Plaintiff’s arguments and reviewing the itemized billing entries, 11 the Court concludes that an attorney’s fee award of $4,000.00 for 12.8 hours of Plaintiff’s 12 counsel’s time is reasonable. Adding counsels’ out of pocket costs of $568.70, results in 13 an award of attorney’s fees and costs in the amount of $4,568.70. Additionally, Plaintiff 14 does not seek, nor does the Court finds reason for an upward modification of the requested 15 fee award. Accordingly, 16 IT IS ORDERED that the parties’ Second Joint Motion to Approve the FLSA 17 Settlement (Doc. 18) is GRANTED. The parties’ Settlement Agreement is approved as 18 fair, reasonable, and just in all respects, and the parties shall perform the Settlement 19 Agreement in accordance with its terms. 20 IT IS FURTHER ORDERED that the Plaintiff’s Unopposed Motion for Approval 21 of Attorney’s Fees and Costs (Doc. 19) is GRANTED. The Court approves an attorney’s 22 fees and costs award in the amount of $4,568.70, which shall be distributed in accordance 23 with the terms of the Settlement Agreement. 24 … 25 … 26 … 27 … 28 2 Plaintiff’s attorney is requesting an attorney’s fee award of $4,000.00 for 12.8 hours billed, which equals a billing rate of $312.50. 1 IT IS FINALLY ORDERED that this case is hereby dismissed with prejudice and 2|| the Clerk of the Court is respectfully directed to enter judgment accordingly. 3 Dated this 9th day of October, 2019. 4 5 JL — ———— 6 Ke Diangé. 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-