Motion to Tax Costs; Motion for Attorney Fees Pursuant to Federal Fair Labor Standards Act (Judge William D. Claster)

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1)??? Motion to Strike or Tax Costs Memorandum

2)??? Motion to Tax Costs on Appeal and Request for Apportionment and Set-Off

3)??? Motion for Attorney Fees and Costs Pursuant to Federal Fair Labor Standards Act, 29 USC 216(b)

Defendant Arthur J. Parent?s motion to tax Plaintiff Amanda Quiles? costs is GRANTED in part and DENIED in part, as stated below. Defendant is ORDERED to tally and calculate the costs that are taxed and those that are awarded, in conformance with this ruling. Per Code, Defendant is to serve Plaintiff with a Proposed Order with these calculations before lodging the Proposed Order with the Court.

Plaintiff?s 07/25/16 Objections

The Court SUSTAINS all objections to 05/20/16 Madoni Declaration.

Federal Law Applies

The parties dispute whether the types of costs recoverable are determined by California or federal law. The Court finds that federal law applies to the extent it permits recovery of types of costs above CCP ??1033.5.

Generally, federal claims ?adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.? (Miller v. Union Pacific R. Co. (2007) 147 Cal.App.4th 451, 455.) ?When a [federal claim] is instituted in state court, state law governs the resolution of procedural issues unless application of state law results in the denial of a right granted by Congress.? (Kinsey v. Union Pacific R. Co.(2009) 178 Cal.App.4th 201, 204?05 [construing FELA]; see also Kerkeles v. City of San Jose (2015) 243 Cal.App.4th 88, 99 [because entitlement to fees arose under 42 USC ? 1988, federal law applied].) Pursuant to 29 USC ? 216(d), ?[t]he court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.? ?Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.? (CCP ? 1032(b).) Because ??216 specifically entitles Plaintiff to costs, Plaintiff may recover costs under federal law that may not be awarded under California law.

 

Specific Costs in Original Cost Memo

?Under the FLSA, costs include reasonable out-of-pocket expenses. They can include costs beyond those normally allowed under Fed.R.Civ.P. 54(d) and 28 U.S.C. ? 1920.? (Smith v. Diffee Ford-Lincoln-Mercury, Inc.(10th Cir. 2002) 298 F.3d 955, 968-969.) The following subsections track the categories listed in Defendant?s motion. Unless otherwise stated, the Court awards the items as reasonable costs.

 

Filing Fees ? Tax in part

In addition to fees in the amount of $739.42 that Plaintiff agreed to cut (Opposition p. 4), the Court taxes items 1 and 4, below.

 

  1. Jury fee and e-filing ? Tax $15 for the reasons stated by Defendant
  2. Courtesy copy delivery and notice of posting jury fees ? Award
  3. Filing fees for ex parte . . . ? Award
  4. Filing fee for statement of compliance ? Tax $665.25 for the reasons stated by Defendant
  5. Delivery cost for courtesy copies . . . ? Award
  6. Courtcall fee . . . ? Award

 

Service and Postage Fees ? Award

 

  1. Postage fees
  2. Service of process

 

Transportation and Lodging ? Tax Airfare and Hotel Lodging Only

 

In addition to the $839.64 of fees voluntarily cut by Plaintiff (Opposition p. 10), the Court taxes all other costs for airfare and hotel lodging objected to by Defendant. All other costs are allowable.

 

  1. 10/19/15 trial date
  2. Costs unrelated to trial
  3. 12/07/15 trial date
  4. 02/22/16 trial date

 

Copying Costs ? Award

 

Exhibit Costs ? Award

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  1. Exhibit binders
  2. Trial supplies

 

Mediation Costs ? Tax

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Fees for a mediator are generally not recoverable as costs. (Brisco-Wade v. Carnahan (8th Cir. 2002) 297 F.3d 781, 782-783 (per curiam); Mota v. University of Texas Houston Health Science Ctr. (5th Cir. 2001) 261 F.3d 512, 530; State of Kansas ex rel. Stephan v. Deffenbaugh Indus., Inc. (D KS 1994) 154 F.R.D. 269, 270.)

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Transcripts Not Ordered by Court ? Award

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Prejudgment Interest ? Tax

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Plaintiff seeks prejudgment interest pursuant to Civil Code ??3291 because Defendant failed to accept Plaintiff?s CCP ? 998, which was for a lesser amount than the judgment. Prejudgment interest is normally designed to make the plaintiff whole and is considered part of actual damages; accordingly, prejudgment interest is a matter of federal substantive law. (Miller v. Union Pacific R. Co. (2007) 147 Cal.App.4th 451, 456-457; see also Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, 15 [striking CC ? 3291 prejudgment interest because it would frustrate federal law].) Plaintiff does not point to federal authority permitting the same recovery as under CC ? 3291. In fact, the FLSA does not allow for prejudgment interest where plaintiff receives liquidated damages. (Thomas v. iStar Fin’l, Inc. (2nd Cir. 2011) 652 F3d 141, 150, fn. 7.) As Plaintiff has been awarded liquidated damages, prejudgment interest is not recoverable.

 

Specific Costs in Supplemental Cost Memo

The Court will consider Plaintiff?s supplemental costs memo. (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015.)

 

Motion and Filing Fees ? Tax in part

  1. E-filing fees ? Award
  2. E-filing fees ? Tax for the reasons stated by Defendant
  3. Courtcall fees ? Award
  4. Motion to compel fees ? Tax for the reasons stated by Defendant
  5. Document retrieval ? Award
  6. Filing fee re: AJ Parent, LLC – Tax for the reasons stated by Defendant
  7. Filing fee for motion to quash – Tax for the reasons stated by Defendant
  8. Class certification fees- Tax for the reasons stated by Defendant
  9. MSA fees – Tax for the reasons stated by Defendant
  10. Motion for leave to amend fees – Tax for the reasons stated by Defendant
  11. Ex parte filing fee – Tax for the reasons stated by Defendant
  12. Filing fee for notice of unavailability – Tax for the reasons stated by Defendant
  13. Motion to compel fees – Tax for the reasons stated by Defendant
  14. Motion to amend fees – Tax for the reasons stated by Defendant
  15. Motion to compel fees – Tax for the reasons stated by Defendant
  16. Motion to quash fees – Tax for the reasons stated by Defendant
  17. Motion to compel fees ? Award
  18. Downloading fees – Tax for the reasons stated by Defendant

 

Service and Postage Fees ? Tax in part

 

  1. Postage fees ? Award
  2. Service of process ? Tax in the amount of $105 for the reasons stated by Defendant

 

Transportation and Lodging ? Tax in part

 

  1. Travel, lodging, and meals – Tax for the reasons stated by Defendant
  2. Working meals ? Tax one-half of the amounts objected to by Defendant (Opp. Exh. B) and award the other half.
  3. Koji PMK deposition – Tax for the reasons stated by Defendant
  4. Dang deposition – Tax for the reasons stated by Defendant
  5. PMK deposition and Plaintiff deposition ? Award
  6. Smart deposition – Tax for the reasons stated by Defendant
  7. Quiles and Turman depositions ? Award
  8. Swords depositions – Tax for the reasons stated by Defendant
  9. Costs related to ? Award
  10. Quiroz deposition ? Award
  11. Quiroz deposition ? Award

 

Copying Costs ? Award

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Deposition Costs ? Tax Deposition expedite charges only

 

  1. Expedited Charges for Deposition transcripts – Tax for the reasons stated by Defendant
  2. Investigation costs ? Award

 

Research Costs ? Tax Westlaw and Deadlines on Demand Fees Only

Although research costs may be awarded as out-of-pocket expenses, the costs for Westlaw and Deadlines on Demand appear to be regular overhead expenses of counsel.

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Plaintiff Amanda Quiles? Motion to Tax Costs on Appeal

Plaintiff?s motion to tax Defendant?s costs on appeal is DENIED, but the request to offset costs on appeal awarded to Defendant is GRANTED.

First, Plaintiff asks that the costs on appeal sought by Defendant Arthur Parent, Jr. be apportioned and reduced to 1/8 to account for the fact that Plaintiff was only 1 of 8 plaintiff-appellants. The rationale of Charton v. Harkey (2016) 247 Cal.App.4th 730, 744-745 is instructive, notwithstanding the fact that it concerned a case in which the prevailing party was represented by the same counsel as a nonprevailing prevailing party: ?In allocating costs between jointly represented parties, however, the trial court may not make an across-the-board reduction based on the number of jointly represented parties because such an allocation fails to consider the necessity or reasonableness of the costs as required by section 1033.5, subdivision (c). Instead, when allocating costs between jointly represented parties, the court must examine the reason each cost was incurred, whether the cost was reasonably necessary to the conduct of the litigation on behalf of the prevailing party, and the reasonableness of the cost.? (Id. at 744-745.) In this case, it would be improper to impose an across-the-board reduction of Defendant?s costs on appeal. Regardless of whether Plaintiff was the sole appellant or one of many, Defendant would have had to pay the same filing fee, reporter?s transcript fee, copying costs, and filing and service costs. Accordingly, no apportionment is necessary.

Second, Plaintiff asks that these costs be offset against the costs Plaintiff will obtain in her cost memo. Defendant does not object, so the Court GRANTS the request to offset $950.85 of costs on appeal awarded to Defendant Arthur Parent, Jr. against the cost award Plaintiff receives against him for the underlying trial.

 

Third, Plaintiff asks that there be a set-off of her portion of AJ Parent LLC?s costs on appeal (since 1/3 of the AJ Parent LLC judgment was to Quiles, Truman, and Dang only). The request is DENIED. Plaintiff?s cost memo seeks costs from Arthur Parent, Jr.?not AJ Parent LLC.

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Plaintiff?s Motion for Attorney Fees

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Plaintiff seeks a fee award of $1,052,165, which includes the following:

  1. $21,384.50 (a 90% discount off the total of $213,845/595.2 hours) for time spent up to 05/22/13
  2. $442,256.25 (a 50% discount off the total of $884,512.50/2,245.5 hours) for time spent after 05/22/13
  3. $419,217.5 for 1,009.4 hours for time spent solely on the wrongful termination action
  4. $25,600 for 51.2 hours for time spent by attorney Crosby
  5. $170,395 for 270.6 hours from time spent by attorney Organ
  6. Less $2,600, a reduction of 5.2 hours of Crosby?s time (Reply p. 9:9-11)
  7. Less $54,192.67, a 5% discount off the subtotal of items 1-6, above
  8. $30,105 for 76.1 hours for time spent to prepare the replies to these motions

 

To determine a reasonable attorney fee award, district courts generally start by calculating the lodestar amount (the product of multiplying the number of hours reasonably expended on the litigation by a reasonable hourly fee). (Hensley v. Eckerhart (1983) 461 U.S. 424, 433-437;Ferland v. Conrad Credit Corp. (9th Cir. 2001) 244 F3d 1145, 1149, fn. 4.) The Court finds that the hourly rates for Plaintiff?s counsel to be reasonable. Defendant does not argue otherwise.

 

The Court appreciates and thanks the parties for the detailed and thorough manner in which they briefed this issue. In considering the parties? briefs and arguments, including Defendant?s 08/16/16 sur-reply summary, the Court AWARDS Plaintiff fees in the amount of $736,515, which represents an additional 30% reduction from the final figure requested by Plaintiff.

In making this determination, the Court believes that Plaintiff should recover for a portion of the time spent on matters that were not solely devoted to the wrongful termination claim, but that the time allocated for work after 05/22/13 was nonetheless excessive. Although Plaintiff presented relatively detailed time entries, the Court notes that there were entries that were vague or general in their description. The Court also finds that the entries for travel time were excessive. In addition, it appears that there was some amount of duplication in work and/or duplicative entries, which warranted further reduction.

Finally, although a lodestar calculation calls for the determination of a reasonably hourly rate multiplied by reasonable hours, the Court determined that, because the hourly rates and the work performed by counsel versus staff varied, Plaintiff would not be fairly compensated if the Court were to apply an average of all the hourly rates multiplied the estimate of total reasonable hours spent. For this reason, the Court adopted Plaintiff?s alternative method of reducing the percentage of the total fees.