United States District Court, D. Arizona
G. Campbell United States District Judge
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.
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).
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
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
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.
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.
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
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
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.