Brewer v. Pro One Security PLLC

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Joseph Brewer, No. CV-23-00331-TUC-RM 10 Plaintiff, ORDER 11 v. 12 Pro One Security PLLC and Jose Luna, 13 Defendants. [14] 15 On July 21, 2023, Plaintiff filed a Complaint against Defendants Pro One Security 16 PLLC (“Pro One”) and Jose Luna, owner of Pro One, alleging that Defendants failed to 17 pay overtime in violation of the Fair Labor Standards Act (“FLSA”). (Doc. 1.) Service 18 was executed on August 16, 2023, and August 23, 2023, as to Pro One and Jose Luna, 19 respectively. (Docs. 5, 6.) However, Defendants failed to answer or otherwise respond 20 to the Complaint. The Court granted Plaintiff’s Motion for Default Judgment on 21 November 20, 2023, awarding damages of $58,825. (Doc. 12.) The Clerk of Court 22 entered judgment in favor of Plaintiff on the same day. (Doc. 13.) Plaintiff then filed the 23 pending Motion for Attorney Fees. (Doc. 15.) 24 I. Legal Standard 25 A motion seeking an award of attorney’s fees and non-taxable costs must include a 26 discussion of the party’s eligibility and entitlement to the award, as well as a discussion 27 of the reasonableness of the requested award. LRCiv 54.2(c)(1)-(3). The motion must be 28 accompanied by supporting documentation, including the relevant fee agreement, a task1 based itemized statement of time expended and expenses incurred, and an affidavit of 2 moving counsel. LRCiv 54.2(d). 3 The FLSA entitles a prevailing plaintiff to an award of reasonable attorney’s fees 4 and costs. 29 U.S.C. § 216 (b). Courts employ a two-step “‘lodestar’ method to 5 determine a reasonable attorney’s fees award.” Kelly v. Wengler, 822 F.3d 1085 , 1099 6 (9th Cir. 2016)). First, to calculate the lodestar figure, the court multiplies “the number 7 of hours reasonably expended on a case by a reasonable hourly rate.” Id. “Second, the 8 court determines whether to modify the lodestar figure, upward or downward, based on 9 factors not subsumed in the lodestar figure.” Id. 10 Hours that are “excessive, redundant, or otherwise unnecessary” are not 11 considered reasonably expended and should be excluded from the lodestar figure. 12 Hensley v. Eckerhart, 461 U.S. 424 , 433–34 (1983). In determining what constitutes a 13 reasonable hourly rate, courts look to the prevailing market rates in the relevant 14 community “for similar work performed by attorneys of comparable skill, experience, 15 and reputation.” Schwarz v. Sec’y of Health & Human Servs., 73 F.3d 895, 908 (9th Cir. 16 1995); see also Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992) (courts 17 generally look to the rates of attorneys practicing in the forum district). The party 18 seeking an award of attorney’s fees bears the burden of producing “satisfactory 19 evidence—in addition to the attorney’s own affidavits—that the requested rates are in 20 line with those prevailing in the community.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 21 973, 980 (9th Cir. 2008). “[A]ffidavits of the plaintiffs’ attorneys and other attorneys 22 regarding prevailing fees in the community, and rate determinations in other cases are 23 satisfactory evidence of the prevailing market rate.” Id. (internal quotation and alteration 24 marks omitted). 25 In the second part of the analysis—determining whether the lodestar figure should 26 be adjusted upward or downward—courts consider the following: 27 (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service [28] properly; (4) the preclusion of other employment by the attorney due 1 to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or [2] the circumstances; (8) the amount involved and the results obtained; 3 (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the [4] professional relationship with the client; and (12) awards in similar 5 cases. 6 Carter v. Caleb Brett LLC, 757 F.3d 866, 869 (9th Cir. 2014) (quoting Kerr v. Screen 7 Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1976), abrogated on other grounds by City 8 of Burlington v. Dague, 505 U.S. 557 (1992)); see also LRCiv 54.2(c)(3). 9 II. Discussion 10 As the prevailing party in this litigation, Plaintiff is entitled under the FLSA to an 11 award of reasonable attorney’s fees and non-taxable costs, and his Motion is timely under 12 LRCiv 54.2(b)(2). 13 Plaintiff requests an attorney’s fee award in the amount of $4,450 for 10 hours 14 incurred by attorney Jason Barrat at the hourly rate of $445. (Doc. 15-1 at 4.) Mr. Barrat 15 is a partner at Weiler Law PLLC, with approximately 12 years of experience in wage and 16 hour employment litigation. (Id. at 2-3.) In support of his requested rate, Plaintiff cites 17 Ekstrand v. Tru Realty LLC, a similar default case in which the plaintiff’s attorneys were 18 awarded a rate of $445 per hour. (Doc. 15 at 7 (citing No. CV-23-01416, (D. Ariz. 19 October 20, 2023))). Plaintiff also cites Vega v. Fine Food Incorporated et al., an FLSA 20 case ending in default in which Mr. Barrat received a rate of $445 per hour. (Doc. 15 at 7 21 (citing No. CV-23-01682, (D. Ariz. November 2, 2023))). 22 However, the weight of the authority appears to support a rate closer to $395 per 23 hour. For example, another court within this district recently reduced Mr. Barrat’s 24 requested $445 per hour rate to $395 per hour, noting that “the hourly rate in this district 25 has routinely been awarded at a rate between $350 per hour and $395 per hour.” Dozzi v. 26 On Point Solar Power LLC, No. CV-23-02206-PHX-JZB, 2024 WL 3416097 , at *6 (D. 27 Ariz. June 24, 2024), report and recommendation adopted, No. CV-23-02206-PHX-JZB, [28] 2024 WL 3414044 (D. Ariz. July 15, 2024); see also Ramos v. Probuilds LLC, No. CV1 23-01111-PHX-SMM (DMF), 2024 WL 1078078 , at *6 (D. Ariz. Feb. 26, 2024), report 2 and recommendation adopted, No. CV-23-01111-PHX-SMM, 2024 WL 1071204 (D. 3 Ariz. Mar. 12, 2024) (collecting cases in support of the proposition that “[p]laintiff’s 4 counsel has regularly been awarded a $350 to $395 hourly rate” in this district); 5 Xalamihua v. GGC Legacy Janitorial Services LLC, No. CV-23-00009-TUC-BGM, 2024 6 WL 942101 , at *2 (D. Ariz. Mar. 5, 2024) (reducing plaintiff’s requested $445/hour rate 7 to $395/hour as is “more in line with the prevailing market rate in this community”). 8 The Court also notes that Mr. Barrat recently asserted a billing rate of $400 per 9 hour, which was found to be reasonable in at least two other FLSA cases ending in 10 default. See, e.g., Fritch v. Orion Manufactured Hous. Specialists Inc., No. CV-2111 00509-TUC-JGZ (JR), 2023 WL 8781248 , at *4 (D. Ariz. Dec. 19, 2023) (finding 12 $400/hour a reasonable rate for Barrat); Mumphrey v. Good Neighbor Community 13 Services LLC, No. CV-23-00923-PHX-ROS, 2023 WL 8702103 , at *3 (D. Ariz. Dec. 15, 14 2023) (same). Based on the prevailing rates in this district, the Court will reduce 15 counsel’s requested hourly rate to $400 per hour, which the Court finds reasonable given 16 counsel’s experience. 17 Plaintiff avers that he spent 10 hours working on this litigation and that “[s]upport 18 staff for Weiler Law spent approximately three hours working on this case, which has 19 been written off in its entire[t]y.” (Doc. 15 at 5.) Having reviewed Plaintiff’s counsel’s 20 billing records (Doc. 15-2 at 2-3), the Court finds no non-compensable clerical tasks and 21 that counsel reasonably expended 10 hours on this litigation. See, e.g., Nadarajah v. 22 Holder, 569 F.3d 906, 921 (9th Cir. 2009) (purely clerical tasks, such as filing and 23 document organization, should be “subsumed in firm overhead”). Multiplied by the 24 hourly rate of $400, the Court finds a lodestar figure of $4,000. 25 After considering the factors set forth in Kerr and LRCiv 54.2(c)(3), the Court 26 finds it appropriate to award the lodestar figure without upward or downward adjustment. 27 Although the case involved a specialized area of law with which counsel has particular 28 experience, the case itself was relatively straightforward and did not require significant 1] time and labor. Additionally, counsel achieved complete relief for Plaintiff. Counsel || worked on a contingency fee basis and did not charge Plaintiff any out-of-pocket costs. (Doc. 15-1 at 3; Doc. 15-6 at 2-3.) 4 In addition to requesting attorney’s fees, Plaintiff requests $4,000 for costs that 5 || may be incurred in potential collection efforts. (Doc. 15 at 9.) Counsel submits exhibits 6|| of itemized collection costs showing the firm incurred costs of $14,000, $9,500, and 7\| $5,500 in other FLSA cases. (Ud. at 10; Docs. 15-3, 15-4, 15-5.) 8 Although counsel has shown that his firm has incurred collection costs in prior 9|| instances, he has not demonstrated that he will incur $4,000, or any specific amount, to || collect on this particular judgment. More specifically, Plaintiff has made no showing that |} Defendants will resist payment. Plaintiff has not explained what collection efforts will be || taken in this specific case. Finally, he has not presented evidence supporting the || contention that collection efforts will cost $4,000. Because Plaintiff has not shown that the requested costs are reasonable and not overly speculative, the Court declines to award 15 || $4,000 in anticipated collection costs. See Stamper v. Freebird Logistics Inc., No. CV16 || 22-00155-PHX-MTL, 2022 WL 4448457 , at *4 (D. Ariz. Sept. 23, 2022) (finding request || for anticipated collection costs overly speculative, even where the defendant has not 18 || responded and default judgment has been awarded). However, the Court grants Plaintiff 19|| leave to file a motion seeking collection costs or additional attorney’s fees after such 20 || costs or fees are incurred. 21 IT IS ORDERED that Plaintiff's Motion for Attorney Fees (Doc. 15) is granted || in part and denied in part. Defendants shall pay Plaintiff $4,000.00 in attorney’s fees. 23 Dated this 16th day of August, 2024. [25] 26 — 4p □ a Honorable Rostsiary □□□□□□□ 28 United States District □□□□□ _5-