United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Jesusa Llanes ("Llanes") brought this action
against Andrea Zalewski ("Zalewski") and Silver
Ridge Adult Foster Care Home, LLC ("Silver Ridge")
(together, "Defendants"), alleging that Defendants
violated the Fair Labor Standards Act ("FLSA"). The
Court granted Defendants' motion for summary judgment
(ECF No. 75). Defendants now seek a fee award and costs (ECF
No. 84). For the reasons discussed below, the Court denies
Defendants' fee petition and grants Defendants'
amended cost bill.
filed this FLSA action in February 2018, alleging minimum
wage and overtime violations. (ECF No. 1.) Defendants moved
for summary judgment in April 2019, on the ground that Llanes
does not qualify for individual FLSA coverage because she was
not engaged in commerce or in the production of goods for
commerce, and Silver Ridge does not qualify for FLSA's
enterprise coverage because it is a local business operating
wholly within Oregon. (Defs.' Mot. Summ. J. at 2.) The
Court agreed, granted the motion, and entered judgment for
Defendants. (Op. & Order at 12.) The Court's analysis
of Llanes' individual FLSA coverage turned on whether
Llanes engaged in activities that were directly related to
interstate commerce. (Op. & Order at 8.)
discovery, Defendants served Llanes with an interrogatory
that asked her to list her job duties. (Decl. of Vivek
Kothari ("Kothari Decl.") Ex. 4 at 2, ECF No.
86-4.) Llanes responded, inter alia, that she
"us[ed] the internet to order goods, including goods
from out of state, for use in the business; [and used]
telephone and mails to refill patient medications including
through out-of-state mail-order pharmacies[.]" (Kothari
Decl. Ex. 4 at 3.) Later, Defendants' counsel asked
Llanes at her deposition whether "any out-of-state mail
order pharmacies [were] used to refill patient
medication?" (Kothari Decl. Ex. 1 at 6.) Llanes replied
"[n]o." (Kothari Decl. Ex. 1 at 6.) Defendants'
counsel asked Llanes if she "use[d] the internet to
order any goods, including goods from out of state, for use
in the business?" (Kothari Decl. Ex. 1 at 7.) Llanes
replied "[n]o." (Kothari Decl. Ex. 1 at 7.)
Defendants' counsel asked Llanes whether she had an
opportunity to review her interrogatory responses, and she
responded that she had. (Kothari Decl. Ex. 1 at 7.)
Defendants' counsel asked Llanes several times if she
"understood] that it was not truthful for [her] to state
that [she] had used the internet to order goods, including
goods from out of state[, ]" and Llanes replied that she
could not answer. (Kothari Decl. Ex. 1 at 9-11.)
ask the Court to order Llanes to pay their attorney's
fees because Llanes lied in her interrogatory responses in an
attempt to establish an essential element of her FLSA claim.
courts that award attorney's fees, unless statutorily
prescribed, follow the 'American Rule' as set out in
Aleyska Pipeline Serv. Co. v. Wilderness Soc 'y,
421 U.S. 240 (1975). There, the Court stated the general rule
that, absent a specific provision of Congress, a litigant may
not recover attorney's fees." Kreager v. Solomon
& Flanagan, P.A., 775 F.2d 1541, 1543 (11th Cir.
1985). FLSA makes "fee awards mandatory for prevailing
plaintiffs .... [but] does not specifically provide
attorney's fees to prevailing defendants. We must
therefore look beyond the Act for an exception to the
American rule." Id; see also Flanagan v. Havertys
Furniture Cos., Inc., 484 F.Supp.2d 580, 583 (W.D. Tex.
2006) ("In the absence of an express provision in the
ADEA or FLSA that permits attorney's fees to a prevailing
party, the 'American Rule' applies[.]").
the 'American Rule,' litigants ordinarily are
required to bear the expenses of their litigation unless a
statute or private agreement provides otherwise."
Grove v. Wells Fargo Fin. Cal, Inc., 606 F.3d 577,
579 (9th Cir. 2010) (citations and quotation marks omitted).
"Several exceptions to the American Rule have developed,
however, based on the equitable powers of the court... to
award attorney's fees when overriding considerations of
justice seem to compel such a result[.]" Dir.,
Office of Worker's Comp. Programs, U.S. Dep 't of
Labor v. Robertson, 625 F.2d 873, 879 (9th Cir. 1980)
(citations and quotation marks omitted). "The 'bad
faith' exception provides for the awarding of
attorney's fees when the losing party has acted
vexatiously or oppressively, and the rationale underlying the
exception is therefore punitive." Id. (citing
Hall v. Cole, 412 U.S. 1, 5(1973)).
faith conduct encompasses a range of willful improper
conduct, including taking actions that delay or disrupt
litigation or hamper enforcement of a court order, or
willfully abuse the judicial processes." Guerrav.
United States, 75 F.Supp.3d 1276, 1281 (W.D. Wash. 2014)
(citing Fink v. Gomez, 239 F.3d 989, 992-93 (9th
Cir. 2001)). "The appropriate focus for the court in
applying the bad-faith exception to the American Rule is the
conduct of the party in instigating or maintaining the
litigation . . . exhibited by, for example, its use of
oppressive tactics or its willful violations of court
orders." Dow Chem. Pac. Ltd. v. Rascator Mar.
S.A., 782 F.2d 329, 345 (2d Cir. 1986). "A specific
finding of bad faith or conduct tantamount to bad faith is
required for inherent power sanctions."
Physician's Surgery, Inc. v. German, 311
F.Supp.3d 1190, 1197 (S.D. Cal. 2018) (citation omitted).
"The standards for bad faith are necessarily
stringent." Odbertv. United States, 576 F.Supp.
825, 828 (E.D. Cal. 1983).
argue that Llanes lied in her answers to their
interrogatories, and that her dishonesty constitutes bad
faith and justifies a fee award. Llanes counters that
"[w]ith a relatively unsophisticated immigrant
plaintiff, it is understandable that some facts may have been
lost in translation[.]" (Pl.'s Resp. at 3.) Llanes
adds that when she "was asked specific questions at
deposition, testifying through a translator in her primary
language of Tagalog, she could and did correct any ...