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Barnes v. Sea Hawaii Rafting

United States District Court, D. Hawaii

January 4, 2019

CHAD BARRY BARNES, Plaintiff,
v.
SEA HAWAII RAFTING, ET AL. Defendants.

          FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS [1]

          RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE.

         On October 5, 2018, the district court issued its Amended Findings of Fact and Conclusion of Law, in which the district court held that Defendants are liable for Plaintiff's reasonable attorneys' fees and costs. See ECF No. 446 ¶¶ 44, 45.The district court directed Plaintiff to file a motion to determine the amount of reasonable attorneys' fees and costs. Id. ¶ 45. Plaintiff submitted a preliminary request and asked for additional time to compile the necessary billing records. See ECF No. 432. After the Court granted Plaintiff's request for additional time, Plaintiff filed the present Motion requesting an award of $323, 799.00 in attorneys' fees and $31, 963.16 in costs and non-taxable expenses. ECF No. 454. Defendant Aloha Ocean Excursions LLC filed an Opposition on December 6, 2018. ECF No. 478. Plaintiff filed his Reply on December 24, 2018. ECF No. 488. After careful consideration of the record in this action and the relevant legal authority, the Court FINDS AND RECOMMENDS that Plaintiff's Motion be GRANTED IN PART AND DENIED IN PART.

         ANALYSIS

         I. Reasonable Attorneys' Fees

         Courts use the lodestar method for calculating an award of reasonable attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A reasonable fee is determined by multiplying “a reasonable hourly rate” by “the number of hours reasonably expended on the litigation.” Id. Once calculated, the lodestar amount is presumptively reasonable. See Penn. v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 728 (1987). However, in “rare and exceptional circumstances, ” a court may decide to adjust the lodestar figure based on an evaluation of several factors: the time and labor required, the preclusion of other employment by the attorney due to acceptance of the case, the customary fee, time limitations imposed by the client or the circumstances, the “undesirability” of the case, the nature and length of the professional relationship with the client, and awards in similar cases. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); Fischer v. SJB-P.D., Inc ., 214 F.3d 1115, 1119 n.4 (9th Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996); Davis v. City & Cnty. of SF, 967 F.2d 1536, 1549 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993).

         In the present Motion, Plaintiff requests the following attorneys' fees:

ATTORNEY HOURS RATE TOTAL
Jay Friedheim, Esq. 558.86 $450 $251, 487.00
John Gibson, Esq. 279 $250 $69, 750.00
Mihail Gilevich, paralegal 5.4 $120 $648.00
Laurinda Blailes, paralegal 4.9 $120 $588.00
Brandon Nuss, paralegal 11.05 $120 $1, 326.00
TOTAL $323, 799.00

See ECF No. 454-3 at 1-45.

         A. Reasonable Hourly Rate

         In determining whether an hourly rate is reasonable, the Court considers the experience, skill, and reputation of the attorney requesting fees. See Webb v. Ada Cnty., 285 F.3d 829, 840 & n.6 (9th Cir. 2002). The reasonable hourly rate should reflect the prevailing market rates in the community. See id.; see also Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as amended on denial of reh'g, (1993) (noting that the rate awarded should reflect “the rates of attorneys practicing in the forum district”). In addition to their own statements, attorneys are required to submit additional evidence that the rates charged are reasonable. See Jordan v. Multnomah Cnty., 815 F.2d 1258, 1263 (9th Cir. 1987).

         Based on the information provided by counsel and the Court's knowledge of the prevailing rates in the community, the Court finds that the $250 hourly rate requested for Mr. Gibson, who has been practicing since 1996, is reasonable. Plaintiff requests $450 per hour for Mr. Friedheim, who has been practicing since 1987, nine years more than Mr. Gibson. Based on the information provided by Plaintiff and the Court's knowledge of the prevailing rates in the community, the Court finds that the hourly rate requested for Mr. Friedheim is excessive and reduces his hourly rate to $350. See, e.g., Sanact, Inc. v. U.S. Pipelining LLC, No. Civil No. 16-00377 HG-RLP, 2018 WL 4737227, at *2 (D. Haw. Sept. 10, 2018), adopted by, 2018 WL 4704029 (D. Haw. Oct. 1, 2018) (awarding an attorney licensed since 1987 an hourly rate of $325); Honolulu Acad. of Arts v. Green, No. CV 15-00355 DKW-KSC, 2017 WL 1086224, at *9 (D. Haw. Feb. 28, 2017), adopted by, 2017 WL 1091309 (D. Haw. Mar. 21, 2017) (awarding $325 per hour for an attorney with 25 years of experience).

         Regarding paralegal work, Plaintiff requests $120 per hour for the three paralegals who worked on this case. Based on the information provided by Plaintiff, the Court finds that the rate is reasonable for Mr. Gilevich and Ms. Blailes. Based on his years of experience and the prevailing rates awarded for paralegal work in this community, the Court reduces the rate for Mr. Nuss to $85 per hour.

         B. Hours Reasonably Expended

         The fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked. Hensley, 461 U.S. at 437; Gates, 987 F.2d at 1397. The prevailing party bears the burden of proving that the fees requested are associated with the relief requested and are reasonably necessary to achieve the results obtained. See Tirona v. State Farm Mut. Auto. Ins. Co., 821 F.Supp. 632, 636 (D. Haw. 1993) (citations omitted). The court is required to explain how it made its fee determination in a comprehensible, but not elaborate fashion. Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).

         Here, Plaintiff's counsel submitted time entries reflecting the hours worked. See ECF No. 454-3. As noted by Defendant Aloha Ocean Excursions LLC in its Opposition, Plaintiff did not comply with the district court's directive to file a motion “in strict compliance” with the Local Rules. See ECF No. 446 ¶ 45. Although Plaintiff's Motion fails to comply with several Local Rule requirements, the Court will address the fees requested to avoid additional briefing, expense, and delay. Based on the Court's careful review of the time entries, the following deductions are appropriate.

         1. Block Billing

         First, the Court finds that the hours requested by Plaintiff should be reduced because most of the hours were block billed. Block billing “refers to the practice of recording the various tasks performed on a case, but entering only a total time spent collectively on those tasks, rather than entering the time spent on each discrete task.” Signature Homes of Haw., LLC v. Cascade Sur. and Bonding, Inc., Civ. No. 06-00663 JMS-BMK, 2007 WL 2258725, at *3 (D. Haw. Aug. 3, 2007) (reducing block billed hours by twenty percent). Courts may reduce the hours that are billed in block format. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). The court “may properly impose a reduction for block billing, but it should ‘explain how or why . . . the reduction . . . fairly balance[s]' those hours that were actually billed in block format.” Id. (quoting Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001)). Further, pursuant to Local Rule 54.3(d)(2), “[i]f the time descriptions are incomplete, or if such descriptions fail to describe adequately the services rendered, the court may reduce the award accordingly.” LR 54.3(d)(2).

         Here, most of the hours requested by Plaintiff's counsel were block billed. See ECF No. 453-3 at 1-44. Specifically, nearly all of counsel's time entries include work on a specific filing or work related to a docket entry, and also include “Teleconference with Client regarding: same.” See Id. Because almost all of counsel's time entries include time spent working on a particular filing and time spent calling Plaintiff, the Court is unable to determine the reasonableness of the time requested for each task. Many of counsel's time entries are for “receipt and review” of docketing entries from the Court and for telephone calls with Plaintiff regarding the same. Standing alone, the time billed for “receipt and review” of docketing entries appears excessive; however, the Court is unable to make such determination because counsel's time records combined those entries with telephone conferences with Plaintiff. See, e.g., ECF No. 454-3 at 1 (1/2/2013 entry for 0.55 hours spent reviewing docket entry setting the date for the scheduling conference and “Teleconference with Client regarding: same”); at 3 (8/21/2013 entry for 0.4 hours spent reviewing a notice of a hearing date and “Teleconference with Client regarding: same”); at 6 (2/7/2014 entry for 0.8 hours spent reviewing a minute order stating that the case did not settle and “Teleconference with Client regarding: same”); at 18 (7/31/2015 entry for 0.4 hours spent reviewing a docket entry stating that a motion would be decided without a hearing and “Teleconference with Client regarding: same”); at 19 (10/6/2015 entry for 0.75 hours for reviewing a notice of hearing time change and “Teleconference with Client regarding: same”).

         This is just one example of how counsel's block billing prevents the Court from making a determination regarding the reasonableness of the hours billed. Counsel's block billing prevents the Court from determining the reasonableness of the hours worked for nearly all of counsel's entries. Because Plaintiff has failed to show that the hours requested were necessarily and reasonably incurred, the Court reduces all of the hours requested by twenty percent. The Court finds that this twenty-percent reduction fairly balances the numerous hours that were block billed with the information provided by counsel in the time entries.

         2. Excessive Time.

         Second, the Court makes several reductions for excessive time. The Court may deduct time requested that is “excessive, redundant, or otherwise unnecessary.” Gates, 987 F.2d at 1397 (quoting Hensley, 461 U.S. at 433-34). As detailed below, many of counsel's time entries reflect hours billed far in excess of the court proceeding referenced in the entries. Although it is possible that counsel spent additional time preparing for the court proceeding, the time entries do not reflect this information. Because Plaintiff has failed to meet his burden to demonstrate that the time requested was necessary or reasonable, the Court deducts the time billed in excess of the court proceeding.

         Mr. Friedheim billed 2.0 hours for participating in a scheduling conference on June 12, 2013; however, the Court minutes show that this conference lasted 10 minutes. ECF No. 454-3 at 2; ECF No. 15. Because the time entry does not provide any information regarding work performed outside of the conference, the Court deducts 1.8 hours from Mr. Friedheim's time.

         Mr. Friedheim billed 2.55 hours for participating in a settlement conference on November 8, 2013; however, the Court minutes reflect that this settlement conference lasted 1.5 hours. See ECF No. 454-3 at 4; ECF No. 41. Because the time entry does not provide any information regarding work ...


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