United States District Court, D. Hawaii
ARSENIO PELAYO, FRANCIS MANANKIL, and BRANDON BORELIZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiffs,
PLATINUM LIMOUSINE SERVICES, INC., KURT TSUNEYOSHI, and DOES 1-10, Defendants.
ORDER ADOPTING IN PART AND MODIFYING IN PART FINDINGS
AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
parties object to portions of the Magistrate Judge's June
6, 2016 Findings and Recommendation (“F&R”),
granting in part and denying in part Plaintiffs'
post-settlement motion for attorneys' fees and
Court adopts the conclusions of the F&R as to numerous
specified time deductions, and the appropriate hourly rate
for Plaintiffs' paralegal. The Court modifies the F&R
with respect to the reasonable hourly rates for
Plaintiffs' attorneys and awards $225 per hour to Richard
Holcomb, Esq. and $310 per hour to Timothy Mac Master, Esq.,
respectively. The Court also modifies the F&R and employs a
50 percent reduction in the lodestar amount to account for
the level of success achieved in this action.
fully explained below, the Court awards Plaintiffs
attorneys' fees of $44, 785.58 and costs of $3, 131.76.
Plaintiffs' Claims and Settlement
driver-employees filed a collective action against Platinum
Limousine Services, Inc. (“Platinum”) and its
principal, Kurt Tsuneyoshi, alleging that Defendants failed
to pay wages and expenses for various employment-related
activities, as required by state and federal law. Following
amendment of the complaint, and the partial granting of
Defendants' motion to dismiss on September 20, 2015, the
following claims remained: (1) violation of Hawaii Revised
Statutes (“HRS”) § 388-6 for failure to
timely pay wages due (Count 1); (2) unjust enrichment (Count
3); and (3) violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et
seq. (Count 4). See Dkt. No. 62.
December 30, 2015 order, the Court denied Plaintiffs'
motion to conditionally certify a collective action under
FLSA § 216(b) and HRS § 388-11(a), granted
Platinum's motion to compel arbitration of the claims
brought by Manankil and two putative plaintiffs, and held the
parties' motions for summary judgment in abeyance pending
further settlement discussions. See Dkt. No. 112.
January 15, 2016 settlement discussions with the Magistrate
Judge succeeded, concluding with the placement of a
settlement on the record. See Dkt. No. 122. As
described more fully in the F&R:
The parties participated in three settlement conferences with
Magistrate Judge Barry M. Kurren on August 27, 2015; November
12, 2015; and January 15, 2016. See ECF Nos. 57, 82,
122. With Judge Kurren's assistance, Plaintiff Pelayo and
Plaintiff Boreliz entered into a Settlement Agreement and
General Release (the “Settlement Agreement”) with
Defendants for $5, 000 and $575, respectively. See
ECF No. 124-12. The parties agreed to submit the issue of
Plaintiffs' attorneys' fees to the Court in the
Settlement Agreement. Id. at 1. The Settlement
Agreement explicitly provides that the filing of a Stipulated
Dismissal “shall not divest the Court of jurisdiction
to determine the amount of attorneys' fees and award
those fees or otherwise enforce [the Settlement
Agreement].” ECF No. 124-12 at 2. The Stipulation for
Dismissal with Prejudice was filed on February 10, 2016.
F&R at 6-7.
Attorneys' Fees Awarded By The F&R
Magistrate Judge first scrutinized the Settlement Agreement
pursuant to the FLSA, finding it was a fair and reasonable
resolution of a bona fide dispute over FLSA provisions.
See F&R at 7-11 (citing Almodova v. City & Cnty.
of Honolulu, 2010 WL 1372298, at *3 (D. Haw. Mar. 31,
2010), adopted by, 2010 WL 1644971 (D. Haw. Apr. 20,
next addressed the determination of attorneys' fees under
the FLSA's mandatory fee- and cost-shifting provision, 29
U.S.C. § 216(b). Plaintiffs requested fees for three
timekeepers: attorneys Richard Holcomb ($300 per hour),
Timothy Mac Master ($450 per hour), and a paralegal ($85 per
hour). The Magistrate Judge found that the requested hourly
rates for Mr. Holcomb and Mr. Mac Master were excessive based
upon the community's prevailing rates, the hourly rates
generally granted by the court, and Plaintiffs'
counsels' submissions. F&R at 15. Instead, he recommended
a reasonable hourly rate of $200 per hour for Mr. Holcomb and
$285 for Mr. Mac Master. F&R at 15-18. The unnamed
paralegal's rate of $85 per hour was found to be
reasonable. F&R at 19-20.
respect to hours reasonably expended, the Magistrate Judge
recommended deducting time spent on the following tasks that
did not contribute to the litigation of the case: (1) 7.3
hours from Mr. Holcomb's time and 1 hour from Mr. Mac
Master's time spent on client agreements; and (2) 0.5
hours that Mr. Holcomb expended conferring with the Office of
Disciplinary Counsel (“ODC”) about his potential
conflict with a Rule 30(b)(6) designee. F&R at 21-22. The
Magistrate Judge further recommended that certain duplicative
time entries for settlement conferences, co-counsel and
client meetings, hearings and Rule 30(b)(6) depositions
attended by both Mr. Holcomb and Mr. Mac Master be reduced.
F&R at 22-29. The Magistrate Judge also deducted 24.2 hours
of paralegal time that was deemed “clerical” and
that should have been absorbed as an overhead expense, and
reduced 7.1 hours of Mr. Holcomb's time as both clerical
and excessive. F&R at 30-31. Next, the Magistrate Judge
recommended deducting excessive time spent on the following
tasks: (1) 16.9 hours of Mr. Holcomb's time expended on
drafting the various complaints; (2) 6.7 hours of Mr.
Holcomb's time devoted to Plaintiffs' motion to
compel production of Manankil's records; (3) 15.5 hours
of Mr. Holcomb's time incurred drafting Plaintiffs'
attorneys' fees motion and 5.5 hours for the reply; (4)
9.7 hours of Mr. Holcomb's time spent preparing for the
Rule 30(b)(6) deposition; and (5) 4 hours of Mr.
Holcomb's time spent on a supplemental brief. F&R at
the Magistrate Judge recommended a 30 percent reduction of
the lodestar figure based on Plaintiffs' limited success
in the litigation. He found that an award of $73, 103.00 in
fees would be excessive based on the ultimate success
obtained by Plaintiffs - a combined settlement amount of $5,
575.00. F&R at 41. The Magistrate Judge recommended awarding
$51, 109.10 in attorneys' fees and $2, 408.26 in GET for
a total fee award of $53, 517.36. F&R at 42. He found that
all costs requested by Plaintiffs were reasonable, thereby
recommending an award of costs in the amount of $3,
131.76. F&R at 43. Both sides object in part to
party objects to a magistrate judge's findings or
recommendations, the district court must review de
novo those portions to which the objections are made and
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); see also United
States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (“[T]he district judge must
review the magistrate judge's findings and
recommendations de novo if objection is made, but
de novo standard, this Court reviews “the
matter anew, the same as if it had not been heard before, and
as if no decision previously had been rendered.”
Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th
Cir. 2006); see also United States v. Silverman, 861
F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing. However, it is the
Court's obligation to arrive at its own independent
conclusion about those portions of the magistrate judge's
findings or recommendation to which a party objects.
United States v. Remsing, 874 F.2d 614, 616 (9th
Cir. 1989). The district judge may accept the portions of the
findings and recommendation to which the parties have not
objected as long as it is satisfied that there is no clear
error on the face of the record. See United States v.
Bright, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009);
Fed.R.Civ.P. 72(b) advisory committee's note.
The Parties' Objections
assert that: (1) the awarded hourly rates are too low; (2)
hours were improperly deducted for time spent working on
retainer agreements and the phone call to ODC; (3) hours
should not have been reduced for duplicative billing; (4) no
deduction was warranted for clerical entries; (5) counsel did
not spend excessive time on the case; and (6) the award
should not be further reduced by 30 percent. Platinum's
lone objection concerns the lodestar reduction. Platinum
asserts that the Magistrate Judge's 30 percent decrease
did not go far enough, and suggests that 80 percent is
appropriate. Each contention is addressed below.
Reasonable Hourly Rate
object to the Magistrate Judge's reduction of the
reasonable hourly rates for Messrs. Holcomb and Mac Master.
They contend that: (1) the rate non-indigent clients are
charged in other types of cases is the amount that should be
awarded in fee-shifting cases; (2) Mr. Holcomb was awarded
the same rate that he was awarded for work done four years
ago and is due an increase; and (3) the awarded rate is not
adequate to attract counsel to cases like this one.
federal law, reasonable attorneys' fees are generally
based on the traditional lodestar calculation set forth in
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In
determining the reasonable hourly rate, some of the relevant
factors to consider include the level of skill required, time
limitations, the amount involved in the litigation, the
attorney's reputation and experience, the quality of the
representation, the attorney's success or failure in the
outcome, and the undesirability of the case. See Chalmers
v. City of Los Angeles, 796 F.2d 1205, 1213 (9th Cir.
Plaintiffs' argument to the contrary, it is
well-established that a reasonable hourly rate should reflect
the “prevailing market rates in the relevant community,
” Gonzalez v. City of Maywood, 729 F.3d 1196,
1205 (9th Cir. 2013), which generally “is the forum in
which the district court sits.” Prison Legal News
v. Schwarzenegger,608 F.3d 446, 454 (9th Cir. 2010).
“Importantly, the fee applicant has the burden of
producing ‘satisfactory evidence' that the rates he
requests meet these standards.” Gonzalez, 729
F.3d at 1206 (citing Dang v. Cross, 422 F.3d 800,
814 (9th Cir. 2005)); see also S.E.C. v. Gemstar-TV Guide
Int'l, Inc., 401 F.3d 1031, 1056 n.8 (9th Cir. 2005)
(“[I]t is “the fee applicant [that] has the
burden of producing satisfactory evidence, in addition to the
affidavits of its counsel, that ...