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Brown v. Cascade Management, Inc.

United States District Court, D. Oregon

September 4, 2018


          Jeff Napoli GILROY NAPOLI SHORT LAW GROUP, Aaron Baker Ashley Bannon Moore BAKER LAW P.C., Attorneys for Plaintiff.

          David P.R. Symes LeiLani J. Hart LITTLER MENDELSON, P.C. Attorneys for Defendant.

          OPINION & ORDER


         Plaintiff 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.[1] 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 punitive damages.

         Plaintiff now moves for $587, 479.50 in attorney's fees and $28, 768.94 in costs.[2] 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.


         When an 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).

         I. Attorney's Fees

         Under a 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.[3] 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).

         II. Costs

         Under 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.

         Costs 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 as costs:

(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 title.

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)).


         I. Amount of Attorney's Fees

         a. Hours Reasonably Expended

         It is 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.”).

         Plaintiff 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, [4] .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.

         Defendant 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.

         i. Plaintiff's Staffing Model

         Defendant 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.

         The 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.

         ii. Duplicative or Excessive Hours

         Defendant 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”).

         On this 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 clearly ...

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