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Thompson v. Arizona Movers and Storage Inc.

United States District Court, D. Arizona

May 29, 2018

Ashley Thompson, Plaintiff,
v.
Arizona Movers and Storage Incorporated, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff has filed a motion for attorneys' fees pursuant to 29 U.S.C. § 216(b) and the parties' settlement agreement. Doc. 32. The motion is fully briefed, and the parties do not request oral argument. The Court will grant the motion in part.

         I. Legal Standards.

         A party requesting an award of attorneys' fees must show that it is (a) eligible for an award, (b) entitled to an award, and (c) requesting a reasonable amount. See LRCiv 54.2(c). Defendants concede that Plaintiff is eligible for and entitled to fees pursuant to the parties' settlement agreement and as the prevailing party under the Fair Labor Standards Act (“FLSA”). Doc. 33 at 1; see 29 U.S.C. § 216(b).

         To determine the reasonableness of requested attorneys' fees, federal courts generally use the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); United States v. $186, 416.00 in U.S. Currency, 642 F.3d 753, 755 (9th Cir. 2011). 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. Blanchard, 489 U.S. at 94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court next “determines whether to modify the lodestar figure, upward or downward, based on factors not subsumed in the lodestar figure.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016). “These factors are known as the Kerr factors.” Stetson v. Grissom, 821 F.3d 1157, 1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). Such an adjustment is appropriate “only in rare or exceptional circumstances.” Cunningham v. City of L.A., 879 F.2d 481, 488 (9th Cir. 1988).

         II. Discussion.

         Plaintiff was represented by the Bendau Law Firm, PLLC in this matter, and she requests $15, 057.50 in attorneys' fees. Doc. 32. This amount represents $12, 447.50 for 38.3 hours of work by attorney Clifford P. Bendau at the hourly rate of $325, and $2, 610.00 for 8.7 hours of work by attorney Christopher J. Bendau at the hourly rate of $300. Id. at 8-9. Counsel began working on the case in September 2017, filed the complaint in October 2017, and accepted a settlement offer in January 2018. See Doc. 32 at 3-4. The settlement agreement awards Plaintiff her unpaid wages trebled ($1, 503.57), costs incurred ($797.59), and reasonable attorneys' fees to be determined by the Court. Doc. 30-1. The agreement states that “there is no good faith dispute that . . . [Plaintiff] is receiving all wages and damages that could possibly be due and owing to her were [she] to succeed at trial, and that a reasonable amount of attorneys' fees are due and owing[.]” Doc. 30-1 at 3-4.

         Defendants argue that the fees Plaintiff requests are unreasonable given the simple nature of Plaintiff's claims, the fact that the case took only four months, and the fact that Plaintiff only recovered $1, 503.57. Doc. 33. Defendants assert that a reasonable award in this case is $2, 500, representing 10 hours of work at $250 per hour. Doc. 33.

         A. Hourly Rates.

         Reasonable hourly rates are not determined by the rates actually charged in a case, 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). Clifford Bendau is the managing partner of the Bendau Law Firm, and both Clifford and Christopher Bendau practice almost exclusively in the area of FLSA wage and hour litigation. Doc. 32-6 ¶¶ 1, 12-13; Doc. 32-7 ¶¶ 2, 13. Clifford Bendau has litigated over 100 employment lawsuits, and Christopher Bendau has litigated about 40. Id. Each submits a declaration averring that their rates of $325 and $300 are reasonable and comparable to rates of attorneys with similar qualifications, expertise, and experience in the Phoenix area. Doc. 32-6 ¶¶ 10-11; Doc. 32-7 ¶¶ 10-11. These averments are based on their personal knowledge of hourly rates charged by other attorneys. Id.

         Although Defendants request a reduction to $250, they present no evidence or explanation as to why the rates of $325 and $300 are unreasonable under the applicable standard. Because Plaintiff has met her initial burden of showing the rates are reasonable, and Defendants have offered no contrary evidence, the Court will not reduce counsel's hourly rates. See Chaudhry v. City of L.A., 751 F.3d 1096, 1110-11 (9th Cir. 2014) (explaining that affidavits of plaintiff's attorney and other attorneys can serve as evidence of the prevailing rate, and once a fee applicant presents such evidence, the opponent must rebut it by submitting contrary evidence).

         B. Compensable Hours.

         Defendants argue that the hours expended on this matter were excessive because the case involved simple issues in Plaintiff's counsel's area of expertise, took less than four months from filing to settlement, and involved a small amount in controversy. Doc. 33 at 3-4. Specifically, Defendants assert that certain hours spent discussing the case were duplicative, and other billing entries were excessive or unnecessary. Id.

         This case involves issues that should be relatively routine for two experienced FLSA attorneys. See Doc. 1 (alleging failure to pay minimum wage and overtime). Counsel was able to calculate an estimate of Plaintiff's overdue wages in 0.3 hours, draft a demand letter in 0.8 hours, and draft the 16-page complaint in 3.1 hours. See Doc. 32-5 at 2. The remaining 42.8 hours were spent communicating with Plaintiff, communicating with opposing counsel regarding settlement negotiations, drafting applications for default, preparing a joint case management report and MIDP response, and drafting the parties' settlement agreement and the fee application. See Doc. 32-5 at 2-7. The Court finds that many of these hours were reasonably expended. ...


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