United States District Court, D. Arizona
ORDER
HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE
Pending
before the Court is the parties' Second Joint Motion to
Approve the FLSA Settlement (“Second Motion”)
(Doc. 18) and Plaintiff's Unopposed Motion for Approval
of Attorney's Fees and Costs (“Fee Motion”)
(Doc. 19). In a prior Order the Court found that a bona fide
FLSA dispute existed and that Plaintiff's total recovery
of $669.78[1] was fair, reasonable, and adequate and in
the best interest of Plaintiff in light of all known facts
and circumstances. (Doc. 17 at 3). However, the Court denied
the parties' First Joint Motion to Approve the FLSA
Settlement (“First Motion”), because the
requested attorney's fee award appeared to be
unreasonable and Plaintiff failed to provide any billing
records, a contingency fee agreement, or any other evidence
to suggest that the requested attorney's fee award was
reasonable. (Id. at 3-5).
Having
already found the Settlement Agreement to be fair and
reasonable, the Court will now address the requested
attorney's fee award. A party requesting an award of
attorney's 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). Plaintiff
argues, and the Court agrees, that pursuant to FLSA,
Plaintiff is entitled to reasonable attorney's fees and
costs. 29 U.S.C. § 216(b). Plaintiff's attorney
began working on this case on July 5, 2019, filed the
Complaint on July 16, 2019, and accepted a settlement offer
by August 28, 2019. The Settlement Agreement awards Plaintiff
his unpaid wages ($238.48), liquidated damages ($431.30), and
attorney's fees and costs ($4, 568.70). (Doc. 18-1 at
2-3). Plaintiff contends that his requested award of
attorney's fees and costs of $4, 568.70 is reasonable,
and further provides that the requested award is comprised of
$568.70 in costs and 12.8 hours of work by Plaintiff's
attorney, Mr. Clifford P. Bendau, II.
To
determine the reasonableness of requested attorney's
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).
Plaintiff's
attorney, Mr. Bendau, II, was hired on a contingency basis
with a fee agreement that included a flat rate of $395.00 per
hour. (Doc. 19-4). Plaintiff argues that his attorney's
billing rate is reasonable and provides that a court in this
district recently determined as much. (Doc. 19 at 5) (citing
Order, Knapp v. Invictus Protective Services LLC, et
al., No. 2:19-cv-00878 (D. Ariz. June 7, 2019), ECF No.
21 (finding that an hourly rate of $395.00 was a reasonable
for Mr. Bendau, II.)). However, Plaintiff fails to mention
that another court in this district recently found that
$395.00 was an unreasonable billing rate for Mr. Bendau, II.
See Outland v. Arizona Movers & Storage, 2019 WL
2269423, at *1 (D. Ariz. May 28, 2019) (finding that although
$395.00 per hour was an unreasonable billing rate, the
plaintiff had demonstrated that a billing rate of $325.00 per
hour was reasonable for Mr. Bendau, II). Although, it appears
from the requested award that Plaintiff's counsel has
already reduced his billing rate for this matter from $395.00
per hour to $312.50 per hour.[2] The Court finds that Plaintiff
has sufficiently shown that $312.50 per hour is a reasonable
rate for Mr. Bendau, II, and therefore, the Court need not
decide the reasonableness of $395.00 per hour.
After
considering Plaintiff's arguments and reviewing the
itemized billing entries, the Court concludes that an
attorney's fee award of $4, 000.00 for 12.8 hours of
Plaintiff's counsel's time is reasonable. Adding
counsels' out of pocket costs of $568.70, results in an
award of attorney's fees and costs in the amount of $4,
568.70. Additionally, Plaintiff does not seek, nor does the
Court finds reason for an upward modification of the
requested fee award. Accordingly, IT IS
ORDERED that the parties' Second Joint Motion to
Approve the FLSA Settlement (Doc. 18) is
GRANTED. The parties' Settlement
Agreement is approved as fair, reasonable, and just in all
respects, and the parties shall perform the Settlement
Agreement in accordance with its terms.
IT
IS FURTHER ORDERED that the Plaintiff's
Unopposed Motion for Approval of Attorney's Fees and
Costs (Doc. 19) is GRANTED. The Court
approves an attorney's fees and costs award in the amount
of $4, 568.70, which shall be distributed in accordance with
the terms of the Settlement Agreement. … …
… …
IT
IS FINALLY ORDERED that this case is hereby
dismissed with prejudice and the Clerk of the Court is
respectfully directed to enter judgment accordingly. Dated
this 9th day of October, 2019.
---------
Notes:
[1] The Settlement Agreement provides that
in addition to the $238.48 Defendants already paid Plaintiff
for his unpaid wages, Defendants will pay Plaintiff an
additional $431.30 to settle his claim for liquidated
damages. Thus, the total settlement amount is
$669.78.
[2] Plaintiff's attorney is requesting
an attorney's fee award of $4, 000.00 for 12.8 hours
billed, which equals a ...