Freeman v. Smith
3:18-cv-00372-SB
D. Or.Mar 12, 2024Background
- Plaintiffs (Ferguson & Freeman) prevailed on FLSA minimum-wage and overtime claims after multi-year litigation involving many opt-ins and both jury and bench proceedings; they moved for $725,140.50 in attorneys’ fees and $83,377.79 in costs/expenses.
- Defendants sought and received an extension for post-judgment fee/cost deadlines; dispute arose when Plaintiffs subpoenaed defense counsel’s billing records and missed the expedited reply deadline, then moved for leave to file their reply nunc pro tunc.
- The Court granted Plaintiffs’ motion for leave under Federal Rule of Civil Procedure 6(b), applying the four-factor excusable-neglect test and considering good cause.
- Using the lodestar method, the Court evaluated reasonable hourly rates (lead counsel Egan, co-counsel Vogele, paralegal Lauzier), then examined hours for block-billing, vague/incremental entries, clerical tasks, and potential duplication.
- The Court reduced some hourly rates and hours (notably disallowing many paralegal clerical hours, trimming email/phone incremental billing, and applying a small haircut to Vogele’s hours), declined to apply a multiplier, and parsed taxable costs and nontaxable expenses—awarding some and denying others.
- Final awards: $556,853.00 in attorney/paralegal fees, $13,208.52 in taxable costs, and $33,376.39 in nontaxable expenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to file reply nunc pro tunc (timeliness) | Plaintiffs sought leave because they awaited subpoenaed billing records and raised excusable neglect; requested consideration under court’s broad discretion | Defendants argued Rule 16(b) good-cause standard and lack of diligence; opposed untimely reply | Court applied Rule 6(b) excusable-neglect four-factor test, found good cause and granted leave; considered the reply |
| Reasonable hourly rates | Requested $630 (Egan), $495 (Vogele), $275 (Lauzier); relied on 2022 OSB survey and counsel’s experience | Defendants challenged rates as excessive compared to prior district awards and forum concerns | Court set rates at $530 (Egan), $495 (Vogele), $200 (Lauzier) based on OSB survey, prior awards, case complexity |
| Reasonable hours / billing practices (block-billing, incremental emails, clerical tasks, duplication) | Many entries were case-specific and necessary; billing increments reflect firm practice; paralegal assisted substantively at hearings | Defendants sought large reductions for vague entries, incremental email/phone billing, clerical/paralegal proofreading, and duplicative intra-office billing | Court disallowed 149.8 paralegal hours for clerical work; reduced aggregated routine email/phone hours to 87; trimmed Vogele’s hours by ~10% (256.8→230) and otherwise excluded excessive/vague entries |
| Lodestar adjustment (multiplier) | Plaintiffs urged upward adjustment for risk, results, complexity | Defendants urged large downward adjustment based on limited monetary recovery and settlement posture | Court declined to adjust lodestar (no multiplier), explaining lodestar already accounts for relevant factors |
| Taxable costs & nontaxable expenses | Sought filing fee, transcripts, printing, AV, notice/website, data entry, Westlaw/PACER, expert/accountant fees for damages work | Defendants contested necessity/documentation and argued some items are overhead or not recoverable (e.g., Westlaw, expert fees, jury research) | Court awarded $13,208.52 taxable costs (denied unsupported printing cost) and $33,376.39 nontaxable expenses (awarded AV, notice/website, scanning, data entry, mileage, postage, office fees; denied Westlaw/PACER, venire research, and accountant expert fees) |
Key Cases Cited
- Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016) (describing two-step lodestar method and appellate review of fee awards)
- Fischer v. SJB-P.D. Inc., 214 F.3d 1115 (9th Cir. 2000) (discussing lodestar and reasonableness of hours)
- Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) (lodestar as approximation of market fee)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (reductions for hours not reasonably expended; related-claims principle)
- Gonzalez v. City of Maywood, 729 F.3d 1196 (9th Cir. 2013) (hour-by-hour review and exclusions for unreasonable hours)
- Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 (9th Cir. 2010) (excusable-neglect equitable factors)
- Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002) (district court discretion to manage briefing)
- Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991) (compensability of work on related, unsuccessful claims)
- Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992) (approach to across-the-board percentage cuts)
- Avila v. Los Angeles Police Dept., 758 F.3d 1096 (9th Cir. 2014) (permits reductions for vague billing descriptions)