Perkins v. City of Modesto ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JASON B. PERKINS, Case No. 1:19-cv-00126-LJO-EPG 9 Plaintiff, ORDER AWARDING EXPENSES UNDER F.R.C.P. 37 10 v. (ECF Nos. 57, 58, 59, 65) 11 CITY OF MODESTO, et al., 12 Defendants. 13 14 The Court previously granted Plaintiff’s motion for expenses, including attorney’s fees, 15 incurred in bringing a motion to compel on which Plaintiff prevailed. (ECF No. 57.) In awarding 16 expenses, the Court explicitly excluded from the award any expenses incurred in preparing and 17 filing a non-compliant joint statement of discovery dispute. (Id. at 36 n.1, 40 n.3.) The Court 18 directed Plaintiff to file a bill of costs and an accounting of attorneys’ fees. Plaintiff has filed his 19 bill of costs and accounting (ECF No. 58) and Defendants have filed a response (ECF No. 59). 20 After a hearing during which the Court questioned whether the attorneys’ fees sought by Plaintiff 21 were “incurred in making the motion” to compel, as required under Federal Rule of Civil 22 Procedure 37, Plaintiff filed a supplemental brief in support of his bill of costs and accounting of 23 attorneys’ fees. (ECF No. 65.) 24 A. Bill of Costs 25 Turning first to the bill of costs, as directed by the Court, Plaintiff has excluded those 26 costs incurred in preparing and filing a non-compliant joint statement of discovery dispute. (See 27 ECF No. 58 at 1-2.) The remaining costs incurred in bringing the motion to compel total $6.70. 28 Defendants do not dispute this amount. (See ECF No. 59.) The Court finds the costs to be 1 reasonable and will accordingly award costs in the amount of $6.70. 2 B. Attorney’s Fees 3 Plaintiff’s accounting of attorney’s fees shows a total of 68.6 hours in bringing the motion 4 to compel. Plaintiff seeks a rate of $450 per hour for attorney Mark E. Merin, and $300 per hour 5 for attorney Paul H. Masuhara, for a total in attorneys’ fees of $21,217.50. (ECF No. 58 at 2-7.) 6 1. Hourly Rate 7 In the Fresno Division of the Eastern District of California, generally, attorneys with twenty 8 or more years of experience are awarded $325.00 to $400.00 per hour, attorneys with ten to twenty 9 years of experience are awarded $250.00 to $325.00, attorneys with five to ten years of experience 10 are awarded $225.00 to $250.00, and less than $200.00 for attorneys with less than five years of 11 experience. See, e.g., In re Taco Bell Wage & Hour Actions, 222 F. Supp. 3d 813, 839 (E.D. Cal. 12 2016) (noting attorneys in Fresno Division with twenty or more years of experience are awarded 13 $350.00 to $400.00 per hour, and attorneys with less than fifteen years of experience are awarded 14 $250.00 to $350.00 per hour); Garci a v. FCA US LLC, 2018 WL 1184949, at *6 (E.D. Cal. Mar. 15 7, 2018) (awarding $400.00 per hour to attorney with nearly thirty years of experience; $300.00 to 16 attorney with nearly fifteen years of experience; $250.00 to attorney with ten years of experience; 17 $225.00 to attorneys attorney with five years of experience; and $175.00 to attorney with less than 18 five years of experience); Mike Murphy’s Enterprises, Inc. v. Fineline Indus., Inc., 2018 WL 19 1871412, at *3 (E.D. Cal. Apr. 19, 2018) (awarding attorney with over twenty years of experience 20 the $325.00 per hour requested, the attorney with nearly twenty years of experience the requested 21 $300.00 per hour, and the attorney with seven years of experience the requested $250.00 per hour); 22 TBK Bank, SSB v. Singh, 2018 WL 1064357, at *8 (E.D. Cal. Feb. 23, 2018), report and 23 recommendation adopted, 2018 WL 3055890 (E.D. Cal. Mar. 21, 2018) (awarding attorneys with 24 over thirty-five years of experience $400.00 per hour, attorney with twenty years of experience 25 $350.00 per hour; and attorney with ten years of experience $300.00 per hour); Roach v. Tate 26 Publ’g & Enterprises, 2017 WL 5070264, at *10 (E.D. Cal. Nov. 3, 2017) (awarding attorney with 27 sixteen years of experience $325.00 per hour in copyright action); Sanchez w. Frito-Lay, Inc., 2015 28 WL 4662636, at *18 (E.D. Cal. Aug. 5, 2015) (in a wage and hour class action finding reasonable 1 rate of $350.00 per hour for attorneys with more than twenty years of experience and $275.00 per 2 hour for attorney with fourteen years of experience). 3 Here, Plaintiff seeks an hourly rate for Mr. Merin of $450 per hour, noting that Mr. Merin 4 has been awarded that rate in other cases in the Eastern District of California. (ECF No. 58 at 2.) 5 However, no details are provided by Plaintiff regarding the number of years Mr. Merin has 6 practiced law. Although the Court should not have to independently research the number of years 7 of practice by Mr. Merin, the Court did review the cases cited by Plaintiff and those cases indicate 8 that Mr. Merin has been practicing law for over forty years. See, e.g., Kaur v. City of Lodi, 2015 9 WL 5173021, at *3 (E.D. Cal. 2015). The Court will take judicial notice of this fact for purposes 10 of determining Mr. Merin’s years of experience. The Court also recognizes that Mr. Merin was 11 awarded an hourly rate of $450 in the Kaur case, which is the same rate he is seeking here. 12 However, Kuar and the other cases cited by Plaintiff in support of the $450 rate for Mr. Merin are 13 from the Sacramento Division and not the Fresno Division. (See ECF No. 58.) The hourly rates 14 generally deemed reasonable in the S acramento Division are higher than those in the Fresno 15 Division. Compare Celestine v. FCA US LLC, 2019 WL 4274092, at *12 (E.D. Cal. Sept. 10, 16 2019) (“The Sacramento Division has awarded hourly rates ranging from $150 for new and 17 inexperienced lawyers to $450 per hour to the most experienced.”) with Christofferson v. All Pure 18 Pool Serv. of Cent. California, Inc, 2020 WL 3249323, at *27 (E.D. Cal. June 16, 2020), report 19 and recommendation adopted sub nom., Christofferson, v. All Pure Pool Serv. of Cent. 20 California, Inc., 2020 WL 3819413 (E.D. Cal. July 8, 2020) (“In the Fresno Division of the 21 Eastern District of California, generally, attorneys with . . . twenty or more years of experience 22 are awarded $325.00 to $400.00 per hour, attorneys with ten to twenty years of experience are 23 awarded $250.00 to $325.00, attorneys with five to ten years of experience are awarded $225.00 24 to $250.00, and less than $200.00 for attorneys with less than five years of experience.”). 25 Based on the rates that have previously been found to be reasonable in the Fresno 26 Division, and Mr. Merin’s forty-plus years of experience, the Court finds that an hourly rate of 27 $400 per hour for Mr. Merin’s time is appropriate. See Christofferson, 2020 WL 3249323 at *27. 28 1 As to the rate sought for Mr. Masuhara of $300 per hour, Defendants contend that this is 2 unreasonable and that a reasonable rate for Mr. Masuhara is $225-$250 per hour. (ECF No. 59 at 3 2.) The Court agrees. 4 As noted above, in the Fresno Division, attorneys with five to ten years of experience are 5 generally awarded $225.00 to $250.00 per hour. See In re Taco Bell Wage & Hour Actions, 222 6 F. Supp. 3d at 839 (noting attorneys in Fresno Division with less than fifteen years of experience 7 are awarded $250.00 to $350.00 per hour); see also Garcia, 2018 WL 1184949, at *6 (Fresno 8 Division case awarding $250.00 per hour to attorney with ten years of experience; and $225.00 to 9 attorneys with five years of experience); Mike Murphy’s Enterprises, 2018 WL 1871412, at *3 10 (Fresno Division case awarding attorney with seven years of experience the requested $250.00 11 per hour). Mr. Masuahra has been licensed as an attorney since June 2013, so at the time these 12 fees were incurred he had been licensed for fewer than seven years. (ECF No. 58.) The Court 13 finds $250 per hour to be a reasonable rate for Mr. Masuhara. 14 2. Number of Hours Claime d 15 As to the number of hours claimed by Plaintiff, Defendants challenge only the time 16 expended on a motion to compel, filed by Plaintiff on July 3, 2019. (See ECF No. 59 at 2; ECF 17 No. 25 (Plaintiff’s motion to compel filed 7/3/2019).) Defendants challenges this time on the 18 ground that the Court found the motion to have been filed prematurely. 19 Defendants are correct that the July 3, 2019, motion to compel was filed prior to 20 completion of the informal discovery dispute process and was thus filed prematurely. However, 21 Plaintiff was allowed to proceed with that motion and, although the parties ultimately resolved the 22 dispute, the Court granted Plaintiff permission to seek sanctions or Rule 37 expenses incurred in 23 bringing that motion. (See ECF No. 27 (minute order granting Plaintiff permission to proceed 24 with the motion to compel, ECF No. 25); ECF No. 30 (minute order noting that the parties had 25 resolved the issues in the motion to compel); ECF No. 31 (minute order granting Plaintiff 26 permission to seek sanctions and/or expenses under Rule 37 in relation to the dispute at issue in 27 ECF No. 25).) The Court finds an award of expenses related to the July 3, 2019 motion to 28 compel, ECF No. 25, is appropriate and will accordingly overrule Defendant’s objection to that 1 portion of Plaintiff’s expenses. 2 Defendants do not raise any further challenges to the number of hours claimed by 3 Plaintiff, but instead “otherwise submit to the Court’s discretion and analysis of accounting for 4 [counsel’s] time expended on the motion to compel.” (ECF No. 59 at 2.) 5 The Court has, however, conducted a full review of Plaintiff’s accounting of the hours 6 expended on filing the motions to compel. As the Court noted above, in its order granting the 7 motion to compel and granting an award of expenses under Rule 37, the Court will not award any 8 expenses for the preparation and filing of the non-compliant joint statement. (ECF No. 57 at 36 9 n.1, 40 n.3.) Although Plaintiff represents that all expenses incurred in relation to the non- 10 compliant joint statement have been excluded, as indicated in the accounting by a strike-through 11 (ECF No. 58), the Court’s review reveals three additional entries in the accounting that do not 12 have a strike-through yet are related to the non-compliant joint statement. Specifically, Plaintiff 13 has included the following three entries as ones for which he is seeking attorneys’ fees: 14 1/17/20 Receive, review P. M oriarty email re: Def’s further PHM 0.5 $150.00 draft of joint stmnt, incorporate new argument about 15 Lt. Tait Decl. (spoliation issue) 16 1/23/20 Review Joint Statement, brief MEM for 1/24 hrg. PHM 1.0 $300.00 1/23/20 Review Joint Statement, exhibits; prepare for 1/24 MEM 3.0 $1,350.00 17 hrg. 18 These entries are clearly for time incurred in relation to the non-compliant joint statement 19 for which the Court has already ruled expenses will not be awarded. (ECF No. 57 at 36 n.1, 40 20 n.3.) The Court will accordingly strike these hours from the total hours for which recovery is 21 allowed. 22 The Court finds that, with this exception, the number of hours for which recovery is 23 sought by Plaintiff is reasonable. 24 Finally, in the accounting, Plaintiff did not separate the total hours for Mr. Masuhara as 25 opposed to Mr. Merin, making it difficult for the Court to make the needed adjustments. 26 However, taking the total 68.6 hours Plaintiff is claiming and subtracting the total number of 27 hours attributed to Mr. Merin (6.25 hours) yields a total number of hours attributed to Mr. 28 Masuhara of 62.35. Reducing the hours for time incurred in relation to the non-compliant joint wOoe 4:40 LOVIN SOMME PPI VOIP eT OY VV 1 | statement yields 3.25 hours attributed to Mr. Merin and 60.85 hours attributed to Mr. Masuhara. 2 | With the adjusted hourly rate the Court has deemed reasonable of $400 for Mr. Merin and $250 3 | for Mr. Masuhara, the Court finds that attorneys’ fees in the total amount of $16,5 12.50! to be 4 | appropriate. 5 Based on the foregoing, the Court’s previous order granting Plaintiff's motion for 6 || expenses incurred in bringing the motion to compel (ECF No. 57), and the record in this case, 7 IT IS ORDERED that: 8 1. Plaintiff is awarded expenses, pursuant to Federal Rule of Civil Procedure 9 37(a)(5)(A), in the total amount of $16,519.20. 10 2. Defendants shall file a statement within thirty (30) days certifying that they have 11 complied with their obligation to pay Plaintiffs’ expenses as ordered by the Court. 12 B IT IS SO ORDERED. 14] Dated: _ August 5, 2020 [Je hey 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 | | For Mr. Merin’s time, the total is $1,300 (3.25 hours x $400). For Mr. Masuhara’s time, the total is $15,212.50 (60.85 hours x $250).