United States District Court, D. Oregon
Napoli GILROY NAPOLI SHORT LAW GROUP, Aaron Baker Ashley
Bannon Moore BAKER LAW P.C., Attorneys for Plaintiff.
P.R. Symes LeiLani J. Hart LITTLER MENDELSON, P.C. Attorneys
OPINION & ORDER
A HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Freddie Lee Brown, Jr. brought this employment discrimination
action against his former employer, Defendant Cascade
Management, Inc. Plaintiff brought claims under federal law,
alleging race discrimination, harassment and retaliation
under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. §
2000e. On October 17-25, 2017, Plaintiff's
claims were tried to a jury. The jury returned a verdict in
favor of Plaintiff on his harassment claim and awarded
Plaintiff $200, 000 in non-economic damages and $125, 000 in
now moves for $587, 479.50 in attorney's fees and $28,
768.94 in costs. For the reasons explained below,
Plaintiff's motion is granted in part. Plaintiff is
awarded $350, 396.90 in fees and $21, 011.89 in costs.
employee prevails on a § 1981 or Title VII claim, the
court in such an action shall, in addition to any judgment
awarded to the plaintiff, allow a reasonable attorney's
fee, reasonable expert witness fees, and other costs of the
action to be paid by the defendant. 42 U.S.C. § 1988; 42
U.S.C. § 2000(e)-5(k).
fee-shifting statute, such as 42 U.S.C. § 1988 and 42
U.S.C. § 2000e-5(k), the “lodestar” method
is used to calculate the attorney's fee award. Staton
v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003). The
court first multiplies the number of hours the prevailing
party reasonably expended on the litigation times a
reasonable hourly rate, in order to determine the
“lodestar” amount. Id. If circumstances
warrant, the court then adjusts the lodestar to account for
the Kerr factors not subsumed within the initial
lodestar calculation. Morales v. City of San Rafael, 96
F.3d 359, 363-64 (9th Cir. 1996) (citing Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). A
“strong presumption” exists that the lodestar
figure represents a “reasonable fee, ” and
therefore, it should only be enhanced or reduced in
“rare and exceptional cases.” Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 478
U.S. 546, 565 (1986). While it is not necessary to detail
every numerical calculation, and across-the-board percentage
adjustments are permissible, the court must provide
“enough of an explanation to allow for meaningful
review of the fee award.” Sorenson v. Mink,
239 F.3d 1140, 1146 (9th Cir. 2001).
Federal Rule of Civil Procedure 54, costs “should be
allowed to the prevailing party.” Fed.R.Civ.P.
54(d)(1). Rule 54 creates a presumption in favor of awarding
costs to the prevailing party. E.g., Ass'n of
Mexican-Am. Educators v. California, 231 F.3d 572, 591
(9th Cir. 2000). “[I]f a district court wishes to
depart from that presumption, it must explain why so that the
appellate court will be able to determine whether or not the
trial court abused its discretion ... [and] explain why a
case is not ordinary.” Id. at 593. To rebut
the presumption, the court may consider “the losing
party's limited financial resources, misconduct on the
part of the prevailing party, the importance and complexity
of the issues, the merit of the plaintiff's case, . . .
and the chilling effect on future . . . litigants of imposing
high costs.” Save Our Valley v. Sound Transit,
335 F.3d 932, 945 (9th Cir. 2003) (citations omitted). The
district court, however, “needs no affirmatively
expressed reason to tax costs. Rather, it need only conclude
that the reasons advanced by the party bearing the burden-the
losing party-are not sufficiently persuasive to overcome the
presumption.” Id. at 946.
taxable under Rule 54(d) “are limited to those set
forth in 28 U.S.C. §§ 1920 and 1821[.]”
Twentieth Century Fox Film Corp. v. Entm't
Distrib., 429 F.3d 869, 885 (9th Cir. 2005). Section
1920 lists the specific items a prevailing party may recover
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained
for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this
28 U.S.C. § 1920(1)-(6). The district court retains
broad discretion to decide how much to award, if anything.
Padgett v. Loventhal, 706 F.3d 1205, 1209 (9th Cir.
2013); see also Arboireau v. adidas Salomon AG, No.
01-105-ST, 2002 WL 31466564, at *4 (D. Or. June 14, 2002)
(trial judge has “wide discretion” in awarding
costs under Rule 54(d)(1)).
Amount of Attorney's Fees
Hours Reasonably Expended
the fee claimant's burden to demonstrate that the number
of hours spent on the case was “reasonably
necessary” to the litigation and that counsel made
“a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary[.]” Hensley v. Eckerhart, 461 U.S.
424, 434 (1983); see also Frank Music Corp. v. Metro-
Goldwyn-Mayer, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989)
(“Plaintiffs bear the burden of showing the time spent
and that it was reasonably necessary to the successful
prosecution of their [ ] claims.”).
seeks compensation for 485.9 hours of work performed by
attorney Jeff Napoli, 444 hours of work performed by attorney
Aaron W. Baker, 388.6 hours of work performed by attorney
Ashley Bannon Moore,  .9 hours performed by attorney Leah A.
Johnson, 93.75 hours of work performed by attorney and former
paralegal Veronica Rodriguez, and 175.2 hours performed by
legal assistant LeAnne Carlsen. Pl. Mot. Att'y Fees 2,
ECF 104. Mr. Napoli, Mr. Baker, and Ms. Bannon Moore all
assert that their time and labor was reasonable, they were
efficient with their time, and divided up tasks as
efficiently as possible to prosecute Plaintiff's claims.
Napoli Decl. ¶ 9; Baker Decl. ¶ 9; Bannon Moore
Decl. ¶ 6.
objects to several categories of time spent by
Plaintiff's counsel. Without repeating in detail each of
Defendant's objections and Plaintiff's responses, the
Court addresses each category of time and deducts time from
Plaintiff's requested hours, as appropriate.
Plaintiff's Staffing Model
argues that Plaintiff's use of two senior attorneys and
one junior attorney resulted in significant inefficiencies
and asks the Court to reduce Plaintiff's fee award by
40%. Def. Opp'n. 6-7. In support of this assertion,
Defendant provides a declaration from Calvin Keith, “a
long-time employment law trial lawyer in Portland” and
notes the general lack of complexity and size of this case.
Def. Opp'n. 6-7, Ex. B.
Ninth Circuit has cautioned that the district court
“may not attempt to impose its own judgment regarding
the best way to operate a law firm, nor to determine if
different staffing decisions might have led to different fee
requests.” Moreno v. City of Sacramento, 534
F.3d 1106, 1115 (9th Cir. 2008) (reversing the district
court's decision to reduce a lawyer's hourly rate
“in part because it thought that other firms could have
staffed the case differently”); see also Miller v.
Schmitz, 654 Fed.Appx. 261, 263 (9th Cir. 2016) (finding
it was error for the district court to compare the amounts
billed by lead attorneys and junior attorneys from both sides
in determining the fee award). “The district
court's inquiry must be limited to determining whether
the fees requested by this particular legal team are
justified for the particular work performed and the results
achieved in this particular case.” Moreno, 534
F.3d at 1115. The Court accordingly declines to impose an
across the board reduction for any inefficiencies that
resulted from Plaintiffs' staffing model.
Duplicative or Excessive Hours
contends that to the extent counsel's hours are
duplicative they should be excluded from the lodestar
calculation. Under certain circumstances, duplicative hours
may be deducted. While “[a] party is certainly free to
hire and pay as may lawyers as it wishes, [it] cannot expect
to shift the cost of any redundancies to its opponent.”
Nat'l Warranty Ins. Co. v. Greenfield, No.
CV-97-1654-ST, 2001 WL 34045734, at *5 (D. Or. Feb. 8, 2001).
For example, “[w]hen attorneys hold a telephone or
personal conference, good ‘billing judgment'
mandates that only one attorney should bill that conference
to the client, not both attorneys. The same good
‘billing judgment' requires attorneys not to bill
for more than two attorneys to review pleadings or to attend
oral argument.” Id. In determining whether
hours were duplicative, courts should consider the complexity
of the case or the extent to which the attorneys handled
distinct aspects of the task billed. See U.S. v. Montagne
Development, Inc., 3:11-cv-01191-PK, 2014 WL 2334209, at
*5 (D. Or. Mar. 10, 2014). “To correct for this
duplication by two attorneys, the higher billing rate of the
two attorneys should be allowed.” Miranda-Olivares
v. Clackamas Cty., No. 3:12-CV-02317-ST, 2015 WL
5093752, at *8 (D. Or. Aug. 28, 2015); see also Montagne
Development, Inc., 2014 WL 2334209, at *5 (reducing
duplicative hours for “multiple attorneys billing for
the same mediation, the same conference with opposing
counsel, or the same intra-office conference”).
basis, the Court has reduced some the requested hours where
they clearly overlap between multiple attorneys or attorneys
and staff, cover the same subject matter, and are billed on
the same day. See Appendix A. For example, as most
of the depositions in this case lasted less than three hours
and did not require the time of two senior attorneys, the
Court has generally only allowed Plaintiff to recover fees
for the attorney who ultimately took the deposition.
Similarly, the Court disallowed the time spent by Mr. Napoli
(the senior attorney with the lower billing rate) during
trial as Plaintiff already had a more senior attorney and an
associate in attendance. For the same reason, the Court only
allowed the time Mr. Baker spent during the April 2017
3.5-hour settlement conference. However, the Court has
allowed Plaintiff to recover fees for time that was not