United States District Court, D. Arizona
G. Campbell United States District Judge.
Deoncea O'Neal and Ryan White, individually and on behalf
of the 12 opt-In Plaintiffs, obtained a $30, 000 settlement
from Defendants in this FLSA case. They now ask the Court to
award them more than $147, 000 in attorneys' fees and
costs. Doc. 74. The motion is opposed and fully briefed.
Docs. 75, 76, 77. No party requests oral argument. For the
reasons set forth below, the Court will grant the motion in
part and deny it in part.
claimed in this case that Defendants, a group of tire stores
and their individual owners, violated the Fair Labor
Standards Act ("FLSA") by failing to pay their tire
porters, crew members, and tire technicians the statutory
premium for overtime work. Defendants are approximately 25
limited liability companies, at least some of which own and
operate tire stores under the name America's Best Tires
(the "ABT companies" or "ABT"); Andrew
Dees, an individual who owned all of the ABT companies until
September 2013 and continued to own 10 companies until April
2016; and Travis M. Dees, Andrew's cousin, who purchased
14 ABT companies from Andrew in September 2013 and has owned
them since. See Doc. 1, ¶¶ 18"45;
Doc. 28-1, ¶¶2"3; Doc. 29-1, ¶¶1,
10- Andrew, his wife, and his companies (the "AD
Defendants") are represented by different counsel than
Travis and his companies (the "TD Defendants").
Deoncea O'Neal worked for ABT from approximately May 2012
to December 2014. Doc. 1, ¶ 8. Plaintiff Ryan White
worked for ABT from approximately April 2012 to February
filed this action in January 2016. Doc. 1. In March 2016, the
TD Defendants moved for summary judgment, admitting that they
violated the FLSA by failing to pay Plaintiffs a premium for
overtime hours and that they were liable for unpaid overtime
compensation and liquidated damages, but arguing that the
case against them was moot because they tendered back wages
and liquidated damages to the named Plaintiffs. Doc. 19.
Plaintiffs argued in response that they never accepted the
payment offered by the TD Defendants. Doc. 26 at 4 n.2. The
Court determined that summary judgment was inappropriate
because Plaintiffs had not accepted the checks tendered by
the TD Defendants, and the parties remained adverse. Doc. 36
(citing Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663,
the denial of summary judgment, Defendants asked the Court to
require Plaintiffs to post a bond to ensure payment of costs
in the event Defendants prevailed. Doc. 44. The Court denied
the motion, stating that "Defendants have not shown that
Plaintiffs are unlikely to succeed on the merits. They argue
that the named Plaintiffs are unlikely to obtain damages
beyond those included in the offer of judgment, but they
ignore entirely the prospect that Plaintiffs might succeed on
the merits by proving their collective action claims."
Doc. 51 at 3.
the Parties reached a settlement and filed a joint motion
requesting the Court's approval, which the Court granted.
Docs. 72, 73. Under the settlement, the AD Defendants paid
$6, 000 and the TD Defendants paid $24, 000. The settlement
permits Plaintiffs to seek attorneys' fees and costs.
the filing of an action causes a defendant to pay unpaid
wages to an FLSA plaintiff, that plaintiff becomes a
prevailing party entitled to attorneys' fees. See
Orozco v. Borenstein, No. CV-11-02305-PHX-FJM, 2013 WL
4543836, at *2 (D. Ariz. Aug. 28, 2013). By virtue of the
settlement, Plaintiffs and the opt-In Plaintiffs received
both liquidated damages and back wages. See Doc.
contend that Plaintiffs are not the prevailing party. They
note that the TD Defendants admitted at the outset of
litigation that there were unpaid overtime wages owed to
Plaintiffs and attempted to pay the named Plaintiffs the
unpaid wages and liquidated damages as early as March 2016.
Plaintiffs refused the offer and continued the lawsuit
seeking damages for time worked off the clock. Doc. 76 at 5
("The key reason that the litigation moved forward from
Plaintiffs' perspective was because Plaintiffs worked
time off the clock and were not paid for it."); see
also Doc. 75 at 8. In the end, Defendants note,
Plaintiffs recovered nothing for time worked off the clock.
Doc. 76 at 5.
initial offers, however, were not equivalent to, or in excess
of, the final settlement amount. Defendants admit that the TD
Defendants' initial offer included unpaid wages and
liquidated damages only for the named Plaintiffs, with
nothing for the opt-in Plaintiffs. Doc. 75 at 6-7. Defendants
further admit that "[i]n order to get the matter
resolved without further litigation, " Defendants agreed
to pay amounts not included in the original offer, including
approximately $3, 100 to each named Plaintiff as a class
representative incentive payment and about $7, 500 in
collective liquidated damages to the opt-in Plaintiffs.
Id. at 9. These amounts would not have been
recovered without Plaintiffs' rejection of the initial
fact that Plaintiffs recovered nothing for time worked off
the clock does not change the analysis. The joint motion
asking the Court to approve the settlement agreement states
that "each Plaintiff and Opt-in Plaintiff in this matter
will have received 100 percent or more of their unpaid
overtime wages, plus equal amounts in liquidated damages,
according to Defendants' own time and compensation
records.'" Doc. 72 at 3 (emphasis added). This
is not an admission that no off-the-clock hours were worked,
but a concession that Plaintiffs would give up those claims
in exchange for avoiding prolonged litigation. See
Id. at 4 ("[A]dditional discovery and motion
practice would be extremely costly and time-consuming in
light of the potential additional recoverable damages, "
and "the risk and expense of pursuing discovery
regarding the alleged off-the-clock hours worked . . . would
not have been justified, given the low amounts at stake and
the likelihood of delayed payment to the class.").
also argue that Plaintiffs are not the prevailing party
because they refused a $10, 000 settlement offer from the AD
Defendants in October 2016 and received a total of $6, 000
from the AD Defendants in the final settlement. Doc. 75 at 8;
Doc. 76 at 6. The Court disagrees. The AD Defendants'
Offer of Judgment proposed a payment of $10, 000 in exchange
for dismissal of claims against the AD Defendants and
resolution of "attorneys' fees, taxable costs,
expert witness fees and interest incurred by
Plaintiffs." Doc. 76-5 at 3-4. The final settlement
offer resolved only the issue of damages, not attorneys'
fees and other costs. Plaintiffs are the prevailing party in
plaintiffs are entitled to attorneys' fees and costs
under the FLSA. See 29 U.S.C. § 216(b);
Haworth v. State of Nev., 56 F.3d 1048, 1051 (9th
Cir. 1995). The trial court has discretion in determining the
amount of an award for attorneys' fees. To determine the
reasonableness of requested fees, federal courts generally
use the "lodestar" method. See Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983); United States
v. $186, 416.00 in U.S. Currency, 642 F.3d 753, 755 (9th
Cir. 2011). Under this method, the Court must first determine
the initial lodestar figure by taking a reasonable hourly
rate and multiplying it by the number of hours reasonably
expended on the litigation. Hensley, 461 U.S. at
"reasonable hourly rate" is not determined by the
rates actually charged, but by the rate prevailing in the
community for "similar work performed by attorneys of
comparable skill, experience, and reputation."
Schwarz v. Sec'y of Health & Human Servs.,
73 F.3d 895, 908 (9th Cir. 1995). The relevant community is
generally the forum in which the court sits. Barjon v.
Dalton, 132 F.3d 496, 500 (9th Cir. 1997). The party
seeking an award of fees should submit evidence - in addition
to the attorneys' own affidavits - supporting the rates
claimed. Hensley, 461 U.S. at 433; Blum,
465 U.S. at 895 n.ll. "Affidavits of the plaintiffs'
attorney[s] and other attorneys regarding prevailing fees in
the community, and rate determinations in other cases ... are
satisfactory evidence of the prevailing market rate."
United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403, 407 (9th Cir. 1990). Once the party seeking
attorneys' fees presents such evidence, the opposing
party "has a burden of rebuttal that requires submission
of evidence . . . challenging the accuracy and reasonableness
of the . . . facts asserted by the prevailing party in its
submitted affidavits." Chaudhry v. City of
L.A., 751 F.3d 1096, 1111 (9th Cir. 2014) (quoting
Camancho v. Bridgeport Fin., Inc., 523 F.3d 973, 980
(9th Cir. 2008)) (internal quotation marks omitted).
counsel submit a declaration regarding their experience,
expertise, and fee rates, which counsel attests to be the
average market rate. Doc. 74-1 at 2-11. Supervising attorney
Michael Zoldan has been practicing employment law since
November 2010 and requests an hourly rate of $300.
Id. at 4-7, ¶¶ 6, 17. Attorney Clifford
Bendau was brought in as co-counsel because of his expertise
in litigating FLSA actions. Id. at 5, ¶ 8. Mr.
Bendau has litigated over 80 wage and hour cases and also
requests an hourly rate of $300. Id. Attorney Jason
Barrat is a partner at Zoldan Law Group, PLLC, has been
licensed for 5 years, and has a practice that is "almost
entirely focused on wage and hour claims on behalf of
plaintiffs." Id., ¶ 9. "[B]ecause Mr.
Barrat's primary assistance in this case related to
client communications and discovery matters, counsel have
decided to reduce his hourly rate to $250 per hour solely for
the purpose of this fee application." Id.
Plaintiffs' counsel also submit the declaration of Amy
Liberman, an attorney licensed to practice law in Arizona
since 1984. Id. at 13-16. Ms. Liberman avers that
she is familiar with the hourly billing rates of attorneys in
the State of Arizona, and that the typical billing rates for
a practitioner of Plaintiffs' counsel's caliber and
experience ranges from $250 to $500 per hour. Id. at
16, ¶¶ 8-9.
present no evidence that the rates charged by Plaintiffs'
counsel are unreasonable for lawyers with similar
qualifications in Phoenix, Arizona. Nor have Defendants'
counsel offered their own billing rates as a comparison.
Courts in this District have found the requested amount to be
reasonable for FLSA cases in the Phoenix area. See
Riendeau v. Apache Carson Partners, LP, 2013 WL 6728141,
at *1 (D. Ariz. Dec. 19, 2013) (finding $300.00 a reasonable
hourly rate for a lead counsel in an FLSA case);
Orozco, 2013 WL 4543826 at *3 (reducing plaintiffs
counsel's hourly rate from $400 to $300 because
"$400 an hour is in excess in comparison to an average
hourly rate of $300 in the Phoenix market.").
Accordingly, the Court finds that the hourly billing rates
for Mr. Zoldan and Mr. Bendau are reasonable.
the proposed hourly rate of $250 for Mr. Barrat is not
excessive. Plaintiffs concede that Mr. Barrat's
"assistance in this case primarily related to client
communications and discovery matters" (Doc. 74 at 13),
but his contributions were not so few as to be characterized
as "paralegal and administrative type tasks" (Doc.
76 at 15). The records show that Mr. Barrat drafted discovery
disclosures and responses, aided in calculating damages, and
engaged in extensive client communication. See Doc.
74-3 at 2-19. Plaintiffs' proposed billing rate is at the
low end of Ms. Liberman's stated range of reasonable
rates. See Doc. 74-1 at 16, ¶ 9. The Court
finds this rate reasonable.
next challenge the number of hours billed by Plaintiffs'
counsel. Doc. 76 at 8-15; Doc. 75 at 11-13. Specifically,
Defendants argue that much of Plaintiffs' counsels'
work product should have taken little time because "this
litigation is a replica of previous litigation filed by the
Zoldan Law Group PLLC against the Travis Dees Defendants in
2015, " and "the only new issue raised in the
current litigation was the collective action request."
Doc. 76 at 8. Defendants present a list of billed tasks they
believe to be "prima facie unreasonable, "
• 63.5 hours billed in total for the complaint (Doc. 76,
Ex. F (26.3 hours of meetings and communication; 15.6 hours
of research; and 22.4 hours spent drafting and reviewing the
• 40.4 hours billed for the motion for conditional
certification, including 10.8 hours of interoffice