Hetland v. Hirsch

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Tobias Hetland, No. CV-21-00487-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Patrick Hirsch, et al., 13 Defendants. [14] 15 Plaintiff Tobias Hetland filed a Motion for Award of Attorneys’ Fees pursuant to 16 LRCiv 54.2(b)(2) and 29 U.S.C. § 216 (b). (Doc. 14 at 1, Doc. 14-5). The Court grants the 17 motion. 18 I. BACKGROUND [19] The Court previously set forth the factual background of this case. (See Doc. 12.) [20] As relevant here, from approximately April 2020 through February 2021, Hetland worked [21] for the Outlaw Roadside Service and Patrick and Jane Doe Hirsch, the owners of Outlaw 22 Roadside Service (collectively, the “Defendants”) as a roadside assistance technician.1 [23] (Doc. 1 ¶¶ 36, 37.) Defendants classified Hetland as an independent contractor, which this [24] Court later found to be erroneous. (Id. ¶¶ 39, 40, see Doc. 12 at 8.) Hetland was required [25] to be “on call” twenty-four hours a day, seven days a week, (Doc 1 ¶¶ 39, 40) and generally [26] 27 1 In Counsel’s motion for attorneys’ fees, he mistakenly refers to Plaintiff as “Ms. Coe,” and claims Plaintiff worked for “approximately two months.” (Doc. 14 at 2.) In the interest 28 of conserving judicial resources, the Court will disregard these errors and assess the motion on its merits. 1 worked 70 or more hours per week (Doc 14. at 2; Doc. 1 ¶ 46). In March 2021, Hetland 2 filed a complaint alleging Defendants unlawfully failed to “pay minimum wage and 3 overtime in violation of the Fair Labor Standards Act” and unlawfully failed to “pay 4 minimum wage due . . . in violation of ARS § 23-363.” (Doc. 1 ¶¶ 5, 6; Doc. 14 at 2.) 5 Defendants were timely served (Docs. 5–7) yet failed to answer or otherwise 6 respond. The Court accordingly granted Plaintiff’s Motion for Default Judgment (Doc. 12) 7 and entered judgment in favor of the Plaintiff (Doc. 13) after finding default to be proper 8 under the Eitel factors. (Doc. 12 at 9.) Eitel v. McCool, 782 F.2d 1470 , 1471–72 (9th Cir. 9 1986). Subsequently, Plaintiff filed this Motion for Award of Attorneys’ Fees in the amount 10 of $5,590.88. This request includes $402 for the complaint filing fee. (Doc. 14-4 at 3; Doc. 11 14-5 at 6.) 12 II. LEGAL STANDARD 13 The FLSA requires that, upon application, the Court award the prevailing party 14 reasonable attorneys’ fees.2 29 U.S.C. § 216 (b). Accordingly, before the Court awards 15 attorneys’ fees, it must determine the prevailing party and whether the requested attorneys’ 16 fees are reasonable. LRCiv 54.2(c); e.g., McGlothlin v. ASI Capital Ventures LLC, No. CV17 19-04895-PHX-DJH, 2021 WL 857367 , at *1 (D. Ariz. Mar. 8, 2021) (“A party seeking 18 an award of attorney’s fees must show it is eligible and entitled to an award, and that the 19 amount sought is reasonable. . . . To be entitled to an award, Plaintiff must have prevailed 20 in this matter.”). 21 To determine the reasonableness of a requested award of attorneys’ fees, the Court 22 must use the “loadstar” approach. Coe v. Hirsch, No. CV-21-00478-PHX-SMM (MTM), [23] 2022 WL 5008841 , at *1 (D. Ariz. Jan. 21, 2022); see also Pelayo v. Platinum Limousine 24 Servs., Inc., 804 Fed. Appx. 522 , 524 (9th Cir. 2020). “Under this approach, a 25 ‘presumptively reasonable’ fee award ‘is the number of hours reasonably expended on the 26 litigation multiplied by a reasonable hourly rate.’” Coe, 2022 WL 508841 , at *1 (quoting [27] 2 The Court notes that Plaintiffs also asserted that they are owed reasonable attorneys’ fees 28 under Arizona law. The Court finds the FLSA to be a sufficient basis on which to award attorneys’ fees. 1 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 982 (9th Cir. 2008). The Court may adjust 2 the lodestar amount to account for the Kerr factors. Gary v. Carbon Cycle Ariz. LLC, 398 3 F. Supp. 3d 468, 485 (D. Ariz. 2019). Those factors include: 4 (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the 5 legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary 6 fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the 7 amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 8 “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in 9 similar cases. 10 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975); see also LRCiv. 11 54.2(c)(3). 12 III. DISCUSSION 13 A. Eligibility for and Entitlement to Attorneys’ Fees 14 For FLSA purposes, the prevailing party is the one that “succeed[ed] on any 15 significant issue in litigation which achieves some of the benefit the part[y] sought in 16 bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. 17 Helgemoe, 581 F.2d 275 , 278–79 (1st Cir. 1978)); see also Haworth v. State of Nev., 56 18 F.3d 1048, 1052 (9th Cir. 1995) (applying the Hensley standard to an analysis of whether 19 the plaintiff is the prevailing party in an FLSA case). Similarly, courts in this district have 20 held that where filing of an action causes a defendant to pay unpaid wages, even without a 21 judgment, the plaintiff becomes the prevailing party and is thus entitled to fees. Orozco v. 22 Borenstein, 2013 WL 4543836 , at *2 (D. Ariz., Aug. 18, 2013). Here, Hetland is the 23 prevailing party because of this Court’s default judgment order granting him the wages 24 sought. For this reason, the Court finds Hetland is eligible and entitled to receive reasonable 25 attorneys’ fees. See 29 U.S.C. § 216 (b). 26 B. Reasonableness of Requested Attorneys’ Fees 27 1. Time and Labor Required 28 Plaintiff requests an award of $5,188.88. (Doc. 104 at 5.) The Court must apply the 1 loadstar approach to determine whether this request is reasonable. Coe, 2022 WL 508841 , 2 at *1. To calculate the loadstar amount, the Court considers whether a reasonable number 3 of hours were expended and whether those hours were billed at a reasonable rate. Id. “The 4 party seeking an award of attorneys’ fees bears the burden of demonstrating that the rates 5 requested are ‘in line with the prevailing market rate of the relevant community.’” Gary, 6 398 F. Supp. 3d at 485 (quoting Carson v. Billings Police Dept., 470 F.3d 889, at 891 (9th 7 Cir. 2006)). “[T]he relevant community is the forum in which the district court sits.” 8 Camacho, 523 F.3d at 979 . 9 Attorney Clifford P. Bendau, II charged an hourly rate of $378.75. (Doc. 14 at 5.) 10 The Court finds that an hourly fee in the range of $300 to $400 to be reasonable in this 11 market. See e.g., Coe, 2022 WL 508841 , at *1 (awarding attorneys’ fees at a rate of $378.75 12 per hour); Mayweathers v. Iconic Results LLC, No. CV-20-01216-PHX-DJH, 2020 WL 13 8181700 at *3 (D. Ariz. Nov. 10, 2020) (awarding attorneys’ fees at a rate of $378.75 per 14 hour, even though the case was “easy”); Gualotuna v. Estrella Gymnastics LLC, No. CV15 16-00597-PHX-DLR, 2016 WL 8669298 at *2 (D. Ariz. Oct. 28, 2016) (awarding 16 attorneys’ fees for a twenty-year attorney and a three-year attorney at rates of $475 and 17 $375 per hour respectively). The Court finds that Plaintiff has met his initial burden of 18 demonstrating the reasonableness of Counsel’s hourly rates. 19 Next, the Court must consider whether a reasonable number of hours were expended 20 by Plaintiffs’ counsel. Coe, 2022 WL 508841 , at *1. Attorney Bendau represents this case 21 required 13.7 hours of his time. (Doc. 14 at 6.) Upon review of Counsel’s time sheet, the 22 Court finds this to be a reasonable amount of time spent on the matter. 23 2. Novelty and Difficulty 24 The Court finds this case did not present any novel or difficult issues. Verduzco v. 25 Value Dental Centers Mesa W. AZ LLC, No. CV-02380-PHX-DJH, 2022 WL 2718163 , at 26 *2 (D. Ariz. July 12, 2022) (finding an Arizona minimum wage and overtime claim did not 27 present any novel or difficult issues). 28 /// 1 3. Requisite Skill 2 The Court finds it takes a “moderate amount of skill to litigate FLSA cases.” Id. 3 Counsel avers the legal issues raised by this FLSA action were “sophisticated and required 4 extensive knowledge of the law,” but also admits that the action had a “straightforward 5 nature.” (Doc. 14 at 7.) On balance, this constitutes a moderate amount of skill. 6 4. Preclusion of Other Employment 7 Plaintiff’s counsel avers that he was not “significantly” precluded from other 8 employment because of this representation. (Id. at 7.) 9 5. Customary Fee 10 Plaintiff’s counsel asserts that his hourly rate of $378.75 is reasonable. (See id. at 11 5.) The Court agrees given its past granting of Counsel’s motions for hourly rates of 12 $378.75 and above. Mayweathers v. Iconic Results LLC, No. CV-20-01216-PHX-DJH, [13] 2020 WL 8181700 , at *1 (D. Ariz. Nov. 10, 2020) (awarding Clifford P. Bendau, II an 14 hourly rate of $378.75). Knapp v. Invictus Protective Services, et al., Case No. 2:19-cv15 00878-DWL, ECF. No. 21 (D. Ariz. June 7, 2019) (awarding Clifford P. Bendau, II an 16 hourly rate of $395). 17 6. Experience, Reputation and Ability of the Attorneys 18 According to Counsel, his practice area remains exclusively within employment 19 wage litigation, largely under the FLSA. (Id. at 10.) He has been practicing law for 10 years 20 and is a managing attorney at his firm. (Id., Doc. 14-5 at 1.) 21 7. Fixed or Contingent Fee 22 Plaintiff’s counsel worked on a contingency basis, requiring forty percent of the 23 total recovery. (Id. at 7, Doc. 14-1 at 3.) 24 8. Time Limitations 25 Nothing indicates Plaintiff imposed time limitations on this matter. See Pozez v. 26 Ethanol Cap. Mgmt., LLC, No. CV-07-00319-TUC-CKJ, 2013 WL 12095669 , at *4 (D. 27 Ariz. July 15, 2013) (granting plaintiff’s attorneys’ fees even where there were no time 28 limitations imposed). 1 9. Amount Involved and Results Obtained 2 “Where a plaintiff has obtained excellent results, his attorney should recover a fully 3 compensatory fee . . . .” Hensley v. Eckerhart, 461 U.S. 424 , 435–36 (1983). Here, Plaintiff 4 received $32,209.80, which accounts for all his estimated unpaid wages, plus additional 5 amounts in liquidated damages. (Doc. 14 at 9.) The Court therefore finds Plaintiff obtained 6 excellent results and Counsel should recover accordingly. Smith v. Martin Marietta 7 Materials, Inc., No. 4:20-CV-80 (CDL), 2021 WL 5141864 , at *4 (M.D. Ga. Nov. 3, 2021) 8 (holding that “Plaintiffs obtained excellent results . . . receiving 100% of the amount they 9 sought in their damages computation for such claims.”) 10 10. The Case’s Undesirability 11 Counsel does not label this case as particularly undesirable but does note the 12 inherent risk involved with contingency fee cases. (Doc. 14 at 10–11.) 13 11. Nature and Length of Relationship with the Client 14 Prior to the case at hand, Plaintiff has never been represented by Counsel. (Id. at 15 11.) This case has been present on the Court’s docket since February 2021. 16 12. Awards in Similar Cases 17 Plaintiff references a variety of cases for awards in actions of a similar nature. (Id. 18 at 4, 10.) E.g., Mayweathers, 2020 WL 8181700 at *1 (granting Counsel’s motion for 19 $4,374.30 in attorneys’ fees, where plaintiff received the unpaid minimum wages sought, 20 and there was no novelty, undesirability, or significant employment preclusion). 21 IV. CONCLUSION 22 The Court finds that on balance the Kerr factors show Plaintiff’s request is 23 reasonable. Thus, the Court awards Plaintiff attorneys’ fees of $5,188.88 and costs in the 24 amount of $402. 25 Accordingly, 26 IT IS ORDERED granting Plaintiffs’ motion for attorneys’ fees. (Doc. 14.) 27 IT IS FURTHER ORDERED that the Defendant shall pay $5,590.88 in attorneys’ 28 fees within 30 days from the date of this order. 1 IT IS FINALLY ORDERED Plaintiffs shall file a notice of satisfaction within 7 days of receipt of the full amount of attorneys’ fees as contemplated by this Order. 3 Dated this 26th day of July, 2022. [4] ° Wichal T. Hburde 6 Michael T. Liburdi 7 United States District Judge [28] -7-