Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

BERRY v. COUNTY OF SONOMA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 1, 1992

GREGORY BERRY, et al., Plaintiffs,
v.
COUNTY OF SONOMA, et al., Defendants.

LANGFORD

The opinion of the court was delivered by: F. STEELE LANGFORD

POST-TRIAL ORDER

The parties' post-trial motions came on for hearing on April 30, 1992. Appearing for moving party was W. David Holsberry, Esq. of Davis, Cowell & Bowe. Appearing for defendants was Patrick Grattan, Esq., of Geary, Shea, O'Donnell & Grattan. Plaintiffs moved to correct the amount of the damage award and for an award of attorney's fees. (The motion to correct the amount of the award was submitted without oral argument, pursuant to Local Rule 220-1). Defendants moved for the court to reconsider its findings and conclusions contained in the Memorandum Opinion of February 28, 1992 and enter judgment for defendants. The moving and opposing papers and argument of counsel having been fully considered and good cause appearing,

 IT IS HEREBY ORDERED that the plaintiffs' motions to correct the amount of the damage award and application for attorney's fees are GRANTED. Defendants' motion for reconsideration and to amend the judgment is DENIED.

 CORRECTION OF AMOUNT OF DAMAGE AWARD

 In its Memorandum Opinion of February 28, 1992 this court awarded damages for unpaid overtime to plaintiffs in the amount of $ 200,731.11, less unpaid overtime accrued prior to December 19, 1987. This amount reflected the calculation submitted with the pre-trial statement some months prior to trial. Plaintiffs' total claim for unpaid overtime, from December 19, 1986, up to the date of trial, however, is $ 280,074.03. The court found that the statute of limitations for this claim is two years, since defendants did not show bad faith. Plaintiffs' claims for unpaid overtime prior to December 19, 1987 are $ 38,407.81. Subtracting the overtime for the year prior to the statute of limitations yields plaintiffs' claim for damages from December 19, 1987 to time of trial: $ 241,666.22. Plaintiffs substantiated their claims using documents such as work logs and other pay records admitted into evidence at trial. The motion to correct the amount of the damage award is therefore GRANTED.

 MOTION TO AMEND JUDGMENT

 Defendants requested that the court reconsider certain findings of fact and conclusions of law in its Memorandum Opinion of February 28, 1992. Defendants also requested that the court, on the basis of this reconsideration, render judgment for defendants in this case. The issues which defendants request the court to reconsider are:

 1) whether the 5% pay increase received by plaintiffs in 1982 was compensation for on-call time;

 2) the number of calls plaintiffs received while on-call requiring an in-person response;

 3) number of telephone calls initiating a death investigation plaintiffs received while on-call.

 The court considered the moving and opposing papers and the argument of counsel. The court finds that there is no basis for reconsidering its findings and conclusions and therefor the motion to amend the Memorandum Opinion and enter judgment for defendants is DENIED.

 APPLICATION FOR ATTORNEY'S FEES

 Plaintiffs applied for an award of attorney's fees, pursuant to this court's order of February 28, 1992 and the mandate of the Fair Labor Standards Act, specifically 29 U.S.C. § 216(b). The fee award requested is $ 215,260.00. This represents 1024.8 hours at $ 200 per hour, plus in additional 51.5 hours incurred between April 1 and the date the matter was submitted.

 After considering the moving and opposing papers and the argument of counsel, this court has determined that the application for attorney's fees should be GRANTED. The court's reasoning is as follows:

 ATTORNEY'S FEE: BACKGROUND

 Plaintiffs, coroner's investigators assigned to the Sonoma County Sheriff's Department, successfully sued their employer under the Fair Labor Standards Act (FLSA) 29 U.S.C. § 201 et seq. for compensation for hours spent "on-call." This court's memorandum opinion of February 28, 1992 authorized plaintiffs to substantiate the amount of attorney's fees requested. The fee award is mandated by the FLSA 29 U.S.C. § 216(b), which states:

 The 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.

 The amount is up to the court's discretion.

 POSITIONS OF THE PARTIES

 Briefly summarized, defendants claim that plaintiffs' counsel is charging too high a fee, for too many hours. They contend that the results he obtained were only partially favorable to his clients and that the use of a multiplier is not justified, since the same factors which would justify a multiplier have also been used to justify a higher hourly rate. Defendants also claim that the factors listed in Kerr do not justify the amount of fees requested, which would be almost equal to the damage award. Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975) cert. den. 425 U.S. 951 (1976)

 Plaintiffs claim that their counsel's fee is the customary charge for this type of case, and that the hours were required because the case was continued three times and because the parties filed cross-motions for summary judgment. The results obtained were the ultimate result plaintiffs wanted: to be compensated for their on-call time. The use of a multiplier was justified because of the risk that counsel took handling this case on a contingent fee basis, and because of the quality of the work done. According to the Kerr factors, plaintiffs counsel set precedent in this Circuit in the area of on-call compensation for public employees, and there are several cases where the fee award far exceeded the damage award, yet was affirmed on appeal. Plaintiffs request a fee of at least $ 204,960.00 (1024.8 hours times $ 200 per hour), the "lodestar" figure. Plaintiffs also request that the court apply a multiplier, between 1.25 and 1.5, which would produce a higher award. Plaintiffs also request fees for an additional 51.5 hours of attorney time incurred between April 1 and the date of this hearing, for which the total fee is $ 10,300.00.

  In reaching its decision, the court has considered the following issues:

 IS THERE COMPETENT EVIDENCE THAT $ 200 IS A REASONABLE HOURLY RATE?

 Defendants claim there is no supporting evidence, for example, declarations from other attorneys practicing in the field. There is also no explanation offered for the different hourly rates plaintiffs' counsel charges: $ 110 for individual union members, $ 145 for unions, $ 200 for contingent fee cases. Defendants question whether there really is a contingent fee agreement, because plaintiffs do not offer a copy.

 Plaintiffs' counsel says that he is knowledgeable about fees in this area of practice because he has served for ten years as an arbitrator of attorney fee dispute for the Bar Association of San Francisco. He has had opportunities to review fee requests in many other cases.

 Plaintiffs' counsel offers a supporting declaration from a labor attorney in which he states that the Ninth Circuit awarded fees of $ 190 per hour to a partner in his firm for successful work on a FLSA case. Plaintiffs' counsel explains that counsel's reduced fees ($ 110 per hour) allow union members to have expert representation even where the union is not paying for their attorney's services. Counsel offers a copy of the contingent agreement with plaintiffs as an exhibit to his declaration in support of the Reply.

 The court concludes that counsel is a partner with fifteen years' experience in a firm specializing in labor law. He himself has arbitrated fee disputes and is conversant with the range of legal fees in the San Francisco area. Other attorneys with his experience have received similar hourly fees from the Court of Appeals. His fee for this case is reasonable.

 IS 1024 HOURS EXCESSIVE?

 Defendants claim that plaintiffs' counsel failed to use "billing judgment" as required by the Supreme Court decision in Hensley:

 "In the private sector 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley v. Eckerhart 461 U.S. 424 (1983)

 Defendants complain that virtually all the time on this case was billed by a partner with fifteen years' experience, rather than by an associate or paralegal. In fact, only 4.9 hours of the 1024 were billed by an associate.

 Plaintiffs' counsel responds that he had much of the summarizing of data done by the plaintiffs themselves, to save the charges of attorneys, paralegals and accountants.

 Plaintiffs' counsel says that he did most of the work on the case because he is the only one in the office familiar with FLSA work. Also, because it was a contingency case, he did not want to "train" somebody new and risk losing the case and receiving no fee.

 He also makes it a practice to do most discovery himself, to know the case more thoroughly.

 This court finds that this was a factually complex case, requiring a great deal of attention to detail. Counsel was the only attorney in his office familiar with the FLSA, and the case was taken on a contingency basis. It was reasonable for counsel, an experienced partner, to handle the case himself, rather than train a new associate.

 This court concludes that 1024 hours is a reasonable amount of time, given the circumstances of the case.

 IS THE USE OF A MULTIPLIER JUSTIFIED?

 Plaintiff's counsel requests that the lodestar fee ($ 200 per hour times 1024.8 hours) be increased by a factor between 1.25 and 1.5, a multiplier which he says reflects the quality, risk and delay considerations in this case.

 Defendants resist this strenuously, arguing that where a labor law attorney charges specialist rates for handling a labor law case, neither complexity nor novelty of issues is an appropriate factor on which to base an upward adjustment. Those were reflected in the number of billable hours, and the attorney's special skills that reduced the number of his hours. These are reflected in the specialist's rates. Blum v. Stenson 465 U.S. 886, 898, 901, 902 (1984) Specific evidence is required for an upward adjustment ( Id. at 898)

 Furthermore, there is a strong presumption against the use of a multiplier. Pennsylvania v. Delaware Valley Citizen's Counsel for Clean Air (II) 483 U.S. 711, 730 (1987).

 Plaintiff cites a number of civil rights cases which authorize use of a multiplier to compensate for the risk of taking a case an a contingent fee basis, as well as the quality of service and the delay between rendering of service and payment of fees.

 Another category of case where a multiplier has been approved in a fee award acknowledged the impact on other employees of the court's decision in the case Thompson v. Barrett 599 F. Supp. 806 (D.C.Cir. 1984)

 Plaintiffs have not shown that this is the kind of landmark case requiring application of a multiplier to an award of attorney fees. Plaintiffs offer no evidence of the risk of this case, relative to other similar cases. In fact, plaintiffs' counsel says that he has settled other FLSA cases, presumably with a result favorable to his clients. The case was not legally complex, although it was factually detailed. The case also did not drag on for years, like some of the cited cases. The case does not necessarily affect a nationwide class of workers, like some of the cited cases.

 This court finds that the quality, risk and complexity of this case are not sufficient to justify use of a multiplier.

 ARE FEES JUSTIFIED, APPLYING KERR FACTORS?

 The parties disagree whether plaintiffs' attorney's fees are justified by applying the factors enumerated in Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975) cert. den. 425 U.S. 951 (1976)

 See also Hensley v. Eckerhart 461 U.S. 424 (1983), which held that "reasonable attorney's fees must be determined by the facts of each case."

 These principles have been applied to FLSA cases in Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436, 440-441 (9th Cir. 1983)

 This court may view one guideline as controlling, as long as it has considered the others Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 713, 781 (9th Cir. 1982).

 KERR FACTORS

 1) TIME AND LABOR INVOLVED

 Plaintiffs point out that the trial of this case was continued three times, once because plaintiff McAllister was called for military duty, once because the parties stipulated to trial before a magistrate, and once because defendants represented that settlement negotiations might be productive. Furthermore, both sides filed cross-motions for summary judgment, which were time-consuming but provided guidance to the trial court. Discovery and document review were extensive, involving many documents, as shown by the trial exhibits. Virtually every issue in the case was contested.

 Plaintiffs contend that every item in their list of charges would have been undertaken by a reasonable and prudent lawyer to advance or protect his client's interest. Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291, 1312-1314 (9th Cir. 1982)

 Defendants retort that the hours billed (1024.8) were excessive. Matters in this case were not delegated to associates or paralegals, but were handled almost exclusively by a partner with 15 years' experience, billing at the firm's premium rate. Defendants object to the lack of detail in plaintiffs' attorney's time record.

  Plaintiffs' counsel says that he did most of the work on the case because he is the only one in the office familiar with FLSA work. Also, because it was a contingency case, he did not want to "train" somebody now and risk losing and receiving no fee.

 Plaintiffs' counsel also adds that since April 1, 1992 he has spent an additional 51.5 hours on this case.

 The court finds that it was reasonable for counsel to spend the amount of time he did on this case. Further, the additional hours were necessary to respond to defendants' motion to amend the judgment and to comply with the court's request for substantiation of plaintiffs' attorney's fees.

 The time spent justified the fee award.

 2) NOVELTY AND DIFFICULTY OF ISSUES

 Plaintiff believes that at the time this action was filed, there were few if any 9th Circuit cases regarding compensation for on-call time worked by public employees.

 Defendants respond that if the case was so novel and complex, why did plaintiffs' counsel spend only 27 hours on legal research? They characterize this as largely a factual dispute.

 Plaintiffs' counsel says that in his computer time records (Ex. 1 to Declaration in Support of Reply Memo) where it says "preparation of pleadings" that time also includes the research necessary to prepare the pleadings. He did far more than 27 hours of legal research.

 The court finds that the issues in this case were novel, given there were no cases on point in the 9th Circuit and that the Renfro case in the 10th Circuit was only decided at the appellate level after this case had come to trial.

 3) SKILL REQUISITE TO PERFORM THE LEGAL SERVICE PROPERLY

 Plaintiffs' counsel is a highly qualified labor lawyer, who has handled other FLSA cases involving public employees. Defendants concede counsel's qualifications.

 4) PRECLUSION OF OTHER EMPLOYMENT

 Plaintiffs' counsel says that he delegated work on other cases to associates and paralegals in his office, to devote himself to this case.

 Defendants say that this factor means preclusion of employment by the attorney's firm, and it refers to work lost because of the case. Planned Parenthood v. Arizona, 789 F.2d 348 (9th Cir. 1986)

 This court finds that it is possible counsel's firm was precluded from taking any other FLSA cases, since he was the only one knowledgeable in that area, but there is no evidence that the firm itself lost business as a result of this case.

 5) CUSTOMARY FEE

 Plaintiffs' counsel offers his firm's regular schedule of fees over the past few years, which is currently $ 110 per hour for individual union members, $ 145 per hour for unions themselves, and $ 200 for contingent fee cases.

 Defendants argue that there is no competent evidence that any of these fees are actually charged to clients.

 The court questioned plaintiffs' counsel about what would happen if the court awarded fees under the FLSA statute: would counsel also receive his contingency fee? Counsel stated that if the statutory award equalled or exceeded the amount which counsel would have received under the contingency agreement, that the statutory award would be the sole fee he received.

 The court accepts counsels representation that this is the customary fee used in his office in contingency cases.

 6) WHETHER FEE IS FIXED OR CONTINGENT

 Counsel says that plaintiffs told him they could only retain him on a contingent fee basis. If they had not prevailed, counsel would have received no fee. A copy of the contingent fee agreement is attached to counsel's declaration in support of his Reply Memorandum as Exhibit 2.

  Defendants object that there is no representation that plaintiffs are indigent, or could not have paid the $ 110 hourly fee for union members. Defendants ask that plaintiffs show the degree to which the relevant legal market compensates for contingencies. King v. Palmer, 906 F.2d 762 (D.C.Cir. 1991)

 Plaintiffs' counsel offers a copy of the Contingency Fee Agreement signed by plaintiffs (Ex. 2 to Declaration in Support of Reply). It provides for recovery of 40% of net award as a fee. This court concludes that the fee was contingent.

 7) TIME LIMITATIONS IMPOSED BY CLIENT OR CIRCUMSTANCES

 Plaintiffs' counsel claims the time limitations in this case are continuing. He had either to settle or file suit at the earliest possible time to achieve the greatest retroactivity.

 Defendants say there was only an initial delay of four months between the time plaintiffs' counsel first contacted them with a demand and the filing of the case, after defendants declined to settle.

 The court concludes that the question of delay is speculative. Every case has to have some deed time between the initial contact and filing suit.

 8) AMOUNT INVOLVED AND RESULTS

 The total amount of the award is in excess of $ 200,000.00

 Plaintiffs achieved their "primary goal," which was compensation for on-call hours. See Rivera v. City of Riverside, 679 F.2d 795, 797 (9th Cir. 1982)

 Defendants counter that because plaintiffs did not receive liquidated damages that the award was only half what they requested, and less than the attorney's fee requested (with the multiplier).

 This court concludes that plaintiffs did achieve their primary goal. Liquidated damages would have been "icing on the cake" and should not be considered to be something the plaintiffs lost. The result achieved was very good.

 9) EXPERIENCE, REPUTATION, ABILITY OF ATTORNEY

 Plaintiffs' counsel offers his qualifications in his Declaration and defendants do not dispute that he is a well-qualified labor lawyer. The parties concede counsel's qualifications.

 10) UNDESIRABILITY OF CASE

 Both sides agree that the case is not undesirable in the sense that there would be no adverse public reaction to plaintiffs' counsel's taking the case. However, plaintiffs' counsel says the case is undesirable in that there is a risk of nonpayment under the contingent fee agreement. Both sides concede the case is not undesirable because of the nature of the dispute. This court finds that the case is not undesirable in the sense that it would cause counsel to lose other clients.

 11) NATURE AND LENGTH OF PROFESSIONAL RELATIONSHIP

  Both sides agree that this is the first and only case counsel has had with these clients.

  12) AWARDS IN SIMILAR CASES

  Plaintiffs' counsel offers examples of awards in other cases:

  Eight plaintiffs awarded $ 100,000 in attorney's fees and $ 18,455 in damages. Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1468 (9th Cir. 1983).

  Plaintiffs awarded $ 25,000 in attorney's fees, $ 12,841.27 in damages. Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436 (9th Cir. 1983).

  Defendants warn that there is not necessarily a relationship between the amount of damages and the award of fees in different cases.

  This court concludes that the amount of the fee award is not tied to the amount of damages - this works both ways - it could mean either that the fee award could be the greater or lesser of the two.

  CONCLUSIONS

  $ 200 per hour is a reasonable fee. 1024.8 hours is a reasonable amount of time, given the circumstances of the case. The additional 51.5 hours were necessary to respond to defendants' motion to amend the judgment and the court's request for substantiation of the amount of the fees.

  Use of a multiplier is not justified, since the same factors have been taken into account in the hourly fee, number of hours and contingency agreement and the case is not legally complex or risky enough to justify use of a multiplier. The time spent justified the amount of fees. The issues in this case were novel, given there were few relevant FLSA cases in the U.S. Court of Appeals for the Ninth Circuit and the Renfro case in the Tenth Circuit was only decided at the appellate level after this case had come to trial. The parties concede plaintiffs' counsel is qualified. It is possible counsel's firm was precluded from taking any other FLSA cases, since he was the only one in the firm knowledgeable in that area, but there is no evidence that the firm itself lost business as a result of this case. The issue of delay is speculative. Every case has to have some dead time between the initial contact and filing suit. Plaintiffs did achieve their primary goal. Liquidated damages would have been "icing on the cake" and should not be considered to be something the plaintiffs lost. The result achieved was very good. Both sides concede that the case was not undesirable. Plaintiffs and counsel have had an attorney-client relationship only for this case. The amount or the fee award is not tied to the amount of damages - this works both ways - it could moan either that the fee award could be the greater or the lesser of the two.

  Plaintiffs' counsel should receive the full hourly fee multiplied by the full number of hours billed, but with no multiplier. Counsel should also receive the fee for the additional 51.5 hours incurred between April 1, 1992 and date of hearing. The total fee award is $ 215,260.00.

  SO ORDERED.

  Dated: May 1, 1992

  F. STEELE LANGFORD

  Chief Magistrate Judge

19920501

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.