The opinion of the court was delivered by: SAUNDRA ARMSTRONG, District Judge
This matter comes before the Court on Plaintiff's Motion for
Attorney's Fees [Docket No. 293]; Defendant General Nutrition
Corporation's ("GNC") Motion for Attorney's Fees [Docket No.
296]; Magistrate Judge Chen's Report and Recommendation re
Plaintiff's and Defendant's Motions for Attorney's Fees [Docket
No. 330]; and GNC's Motion for De Novo Determination of the
Magistrate's Report and Recommendation [Docket No. 332].
Having read and considered the arguments presented by the
parties in the papers submitted to the Court, as well as
Magistrate Judge Chen's Report and Recommendation, the Court
finds this matter appropriate for resolution without a hearing.
The Court hereby GRANTS IN PART AND DENIES IN PART GNC's Motion
for De Novo Determination [Docket No. 332]; GRANTS IN PART AND
DENIES IN PART Plaintiff's Motion for Attorney's Fees [Docket No.
293]; and GRANTS IN PART AND DENIES IN PART GNC's Motion for
Attorney's Fees [Docket No. 296].
A. Factual Background*fn1
Plaintiff Mercedes Navarro ("Navarro" or "Plaintiff"), a
California resident, was hired by General Nutrition Corporation
("GNC"), a Pennsylvania corporation, in March 1999. In October
1999, she was promoted to manager of the GNC store in San Leandro, California.
On May 8, 2002, Plaintiff fell off a ladder while working at the
San Leandro GNC store and suffered injuries. After returning to
work, however, Plaintiff continued to experience pain as a result
of the fall. Plaintiff thereafter took off an additional three
weeks using accumulated sick days and vacation time.
On July 11, 2002, Plaintiff notified GNC's Human Relations
department that she wanted to take additional leave under the
Family Medical Leave Act of 1983 ("FMLA") and the California
Family Rights Act ("CFRA"). On July 15, 2002, GNC's Human
Relations department determined that, subject to certain
conditions, Plaintiff provisionally met the eligibility
requirements for leave.
Plaintiff returned to work on July 18 and 19, 2002. On the
second of the two days, Plaintiff's supervisor, Lorainne Crisp
("Crisp"), asked her to open the Castro Valley GNC store and
manage its first shift the next morning, July 20, 2002, at 10:00
a.m. That night, Plaintiff presented to the St. Rose Hospital
emergency room with complaints of "anxiety" and "chronic pain."
The physician's report indicated that Plaintiff "should be able
to return to work/school" on July 22, 2002. Plaintiff was
discharged at 1:45 a.m. on July 20, 2002 but did not return to
work to open the Castro Valley GNC that day.
Plaintiff was immediately suspended, but given the opportunity
to provide a doctor's note relating to her emergency room visit
in order to avoid termination. Plaintiff's employment was
subsequently terminated on July 29, 2002. Plaintiff contends that
she did not receive notice of her termination until August 8,
2002. Plaintiff also contends that she provided GNC with a
medical certification that was signed by Dr. Deborah Greer on
August 5, 2002. The certification, which did not address
Plaintiff's July 19, 2002 emergency room visit, indicated that
Plaintiff had a "serious health condition" under the FMLA. The
certification further stated that Plaintiff suffered from
continued right shoulder and back pain; that the condition
commenced May 8, 2002; and that she would only be able to work
intermittently through September 30, 2002.
On December 26, 2002, Plaintiff filed a complaint in Alameda
County Superior Court against Defendants GNC and Crisp
alleging: (1) wrongful termination in violation of public policy
(against GNC); (2) violation of the FMLA (against GNC); (3)
violation of the CFRA (against GNC); (4) unfair competition in violation of California Business and Professions Code § 17203
(against GNC); (5) violation of the California Fair Employment &
Housing Act ("FEHA") for race discrimination and discrimination
on the basis of medical condition (against GNC); and (6)
intentional infliction of emotional distress (against GNC and
Crisp). GNC removed the action to this Court on February 12, 2003
based on federal question jurisdiction. GNC also alleged in the
Notice of Removal that the Court had diversity jurisdiction
because Defendant Crisp*fn2 was a "sham" defendant.
Plaintiff did not oppose removal.
On March 18, 2003, this Court issued an Order setting the
initial Case Management Conference for July 23, 2003. On July 7,
2003, pursuant to the Court's Order, the parties filed a Joint
Case Management Conference Statement. However, on July 23, 2003,
Plaintiff failed to appear for the telephonic Case Management
Conference. Accordingly, on July 29, 2003, the Court issued an
Order to Show Cause why the action should not be dismissed. Per
the Court's instructions, Plaintiff's counsel, Mr. Hoffman, filed
a Declaration on August 11, 2003 explaining Plaintiff's failure
to initiate the telephone conference call. The Court set aside
the Order to Show Cause on August 21, 2003.
On October 16, 2003, a further Case Management Conference was
held. At the Case Management Conference, the Court set the case
for a March 22, 2004 trial. The parties were ordered to attend a
pretrial conference on March 9, 2004.
On January 7, 2004, the parties attended a mediation but were
unable to reach settlement. On January 15, 2004, the parties
attended a Settlement Conference with Magistrate Judge Chen but,
again, were unable to reach settlement.
On January 16, 2004, GNC filed a motion requesting a
continuance of the pretrial conference and trial date [see
Docket No. 35]. In the motion, GNC stated that it had been
attempting for months to informally resolve its dispute with
Plaintiff and that, due to what it believed was a mutual desire
between the parties to keep the costs of litigation low, it had
not served Plaintiff with formal discovery requests but, instead,
had voluntarily provided Plaintiff with a significant amount of
information and documentary evidence relevant to her claims. GNC
also alleged that it had a reasonable expectation that the case
would not proceed to trial and did not realize until the January 7, 2004 mediation that the parties
would not be able to reach settlement. GNC further alleged that
Plaintiff had informed GNC that she was willing to extend the
discovery deadline but was unwilling to stipulate to a
continuance of the trial date because she wanted to prevent GNC
from being able to file any dispositive pretrial motions.
On January 27, 2004, Plaintiff's counsel signed a stipulation
agreeing that Plaintiff's claim for race discrimination was
baseless and that Plaintiff would no longer pursue that claim.
Plaintiff did not, however, move to dismiss that claim.
On February 10, 2004, Plaintiff filed an untimely opposition to
GNC's motion for a continuance of the pretrial and trial dates
[see Docket No. 42]. Plaintiff's opposition did not respond
substantively to any of the arguments set forth in GNC's motion.
However, in a supporting declaration, Plaintiff's counsel stated
that Plaintiff was opposed to the continuance because Plaintiff
was "completely ready for trial" [see Docket No. 43].
On February 13, 2004, GNC filed a reply brief, in which it
informed the Court that Plaintiff's counsel's representation that
Plaintiff was "completely ready for trial" was patently false, as
Plaintiff had propounded a significant amount of discovery
requests on GNC that had not been completed, and had noticed
eleven depositions of GNC's current and former employees, nine of
which had not yet taken place [see Docket No. 46]. GNC also
stated that Plaintiff had not yet responded to GNC's written
discovery requests, despite the fact that the corresponding
deadlines had passed, and that Plaintiff had failed to disclose
the identity of her purported expert(s).
On February 17, 2004, the Court granted GNC's motion and
continued the trial date to May 17, 2004, with the pretrial
conference to take place on May 4, 2004.
On March 15, 2004, Defendants GNC and Crisp filed a Motion for
Summary Judgment. On March 24, 2004, GNC and Crisp filed a Motion
to Shorten Time on Defendants' Motion for Summary Judgment, in
which Defendants requested a hearing date of April 6, 2004, so
that the Motion for Summary Judgment could be heard by the
Court-ordered motion cut-off deadline. On March 29, 2004, the
Court granted Defendants' Motion to Shorten Time, and ordered the
parties to complete the briefing on Defendants' Motion for
Summary Judgment on or before April 13, 2004. On April 6, 2004, Plaintiff
filed an Opposition to Defendants' Motion for Summary Judgment
which included an untimely cross-motion for summary
adjudication.*fn3 The Court subsequently sustained
Defendants' objection to Plaintiff's cross-motion and ordered it
stricken from the record [see Docket No. 96].
On April 23, 2004, the Court issued an Order granting in part
and denying in part Defendants' Motion for Summary Judgment.
Pursuant to the Court's April 23, 2004 Order, Plaintiff's unfair
competition and intentional infliction of emotional distress
claims were dismissed. However, Defendants' Motion for Summary
Judgment was denied with respect to Plaintiff's claims for: (1)
FMLA/CFRA interference, (2) FMLA/CFRA retaliation, and (3)
wrongful termination.*fn4 Also pursuant to the Court's April
23, 2004 Order, the parties were referred to Magistrate Judge
Chen for a further Settlement Conference.
On April 29, 2004, the parties participated in a Settlement
Conference with Magistrate Judge Chen. During the Settlement
Conference, GNC offered Plaintiff $65,000 to settle the case.
Plaintiff's counsel contends, however, that Judge Chen did not
communicate the $65,000 offer to him. See Supp. Decl. of
Michael Hoffman ("Supp. Hoffman Decl.") at ¶ 1. Since Plaintiff
was not willing to settle for an amount below six figures, the
Settlement Conference was terminated. Id.
Trial commenced on May 17, 2004. On May 26, 2004, Plaintiff
filed a Motion to Amend the Complaint [Docket No. 251]. In the
Motion to Amend, Plaintiff conceded that, although her complaint
alleged that Defendants had violated FEHA by discriminating
against her on the basis ofa "medical condition," she had no
evidence in support of that claim. Plaintiff contended, however,
that the evidence at trial supported a claim under FEHA for
discrimination on the basis of physical disability and requested
leave to amend the complaint accordingly. The Court denied
Plaintiff's Motion to Amend the Complaint on May 26, 2004.
On May 27, 2004, the jury returned to Court with a unanimous
verdict in favor of Plaintiff on her cause of action for FMLA
interference and awarded Plaintiff past economic loss damages in
the amount of $60,500. With respect to Plaintiff's claims for FMLA retaliation,
violation of CFRA rights, CFRA rights retaliation, and wrongful
discharge in violation of public policy, the jury returned a
unanimous verdict for GNC.*fn5
On June 17, 2004, Plaintiff filed a Bill of Costs in the amount
of $15,945.12 and GNC filed a Bill of Costs in the amount of
$64,400.00. Also on June 17, 2004, Plaintiff filed a Motion for
Attorney's Fees, requesting an award of attorney's fees in the
total amount of $687,647.87.
On June 18, 2004, GNC filed its Motion for Attorney's Fees,
requesting an award offees in the amount of $494,386.00.
On July 7, 2004, costs were taxed in the amount of $9,374.88
against GNC and $34,300.68 against Plaintiff.
On September 21, 2004, this Court referred Plaintiff's and
GNC's Motions for Attorney's Fees to Magistrate Judge Chen for a
report and recommendation.
On November 19, 2004, Magistrate Judge Chen issued his Report
and Recommendation [Docket No. 330].
On December 7, 2004, GNC filed its Objections to Portions of
Magistrate Judge Chen's Report and Recommendation and the instant
Motion for De Novo Determination.
Under Federal Rule of Civil Procedure ("Rule") 54(d)(2)(D), the
Court may refer a motion for attorneys' fees to a magistrate
judge under Rule 72(b) as a dispositive pretrial matter. See
Fed.R.Civ.P. 54(d)(2)(D). Rule 72(b) allows a magistrate judge
to "hear a pretrial matter dispositive of a claim or defense of a
party." Fed.R.Civ.P. 72(b). Rule 72(b) also governs the
procedure for objecting to a magistrate judge's determination of
a dispositive pretrial matter:
A party objecting to the recommended disposition of
the matter shall promptly arrange for the
transcription of the record, or portions of it as all
parties may agree upon or the magistrate judge deems
sufficient, unless the district judge otherwise
directs. Within 10 days after being served with a
copy of the recommended disposition, a party may
serve and file specific, written objections to the
proposed findings and recommendations. A party may
respond to another party's objections within 10 days
after being served with a copy thereof. The district
judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence, of any portion of the magistrate
judge's disposition to which specific written
objection has been made in accordance with this rule.
The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or
recommit the matter to the magistrate judge with
Northern District Civil Local Rule 72-3 requires that an
objection filed pursuant to Rule 72(b) "must be accompanied by a
motion for de novo determination, specifically identify the
portions of the Magistrate Judge's findings, recommendation or
report to which objection is made and the reasons and authority
therefor." N.D. Civil L.R. 72-3(a). In addition, the Court's
review and determination of objections filed pursuant to Civil
Local Rule 72-3(a) shall be upon the record of the proceedings
before the Magistrate, except when the Court grants a motion for
expansion or addition to the record or for an evidentiary
hearing. Id. at 72-3(c).
The Court evaluating a Magistrate Judge's recommendation may
adopt those portions of the recommendation to which no specific
objection is made, as long as those sections are not clearly
erroneous. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(b). However,
"[t]he district court cannot simply `concur' in the magistrate's
findings, . . . it must conduct its own review in order to adopt
the recommendations." McCombs v. Meijer, Inc., 2005 U.S. App.
LEXIS 949 *31 (6th Cir. 2005) (citing Massey v. City of
Ferndale, 7 F. 3d 506, 510-11 (6th Cir. 1993)). Further, in
computing an award, the Court should provide a "detailed account
of how it arrives at appropriate figures for `the number of hours
reasonably expended' and `a reasonable hourly rate.'" Hensley v.
Eckerhart, 461 U.S. 424, 436 (1983). The Court must also conduct
a de novo review of all of the Magistrate Judge's conclusions
of law. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.
I. Plaintiff's Motion for Attorney's Fees
In Plaintiff's Motion for Attorney's Fees, Plaintiff requests
an award of attorney's fees in the amount of $687,647.87, based
on a lodestar value of $343,823.81 and a multiplier of 2.0.
Plaintiff's Motion is premised on the fact that Plaintiff was the prevailing party on her FMLA
In its opposition, GNC argues that the Court should deny
Plaintiff's Motion in its entirety, or, alternatively, award fees
and costs in the total amount of $6,518.50. In support of this
argument, GNC sets forth the following points: (1) Plaintiff's
counsel's requested rates are not in line with those prevailing
in the community for lawyers of comparable skill and reputation;
(2) Plaintiff's counsel's requested hours should be reduced to
exclude hours billed by Mr. Rosenthal, since Plaintiff did not
provide the Court with any documentation concerning Mr. Rosenthal
or his background and did not provide a statement of the actual
hours billed by Mr. Rosenthal; (3) Plaintiff's counsel's
requested hours should be reduced to exclude hours based on
uncooperative and contentious conduct; (4) Plaintiff's counsel's
requested hours should be reduced to exclude time spent pursuing
frivolous claims; (5) Plaintiff's counsel's requested hours
should be reduced to account for the fact that Plaintiff rejected
a settlement offer that was more favorable than the award she
received from the jury; (6) Plaintiff's requested paralegal hours
should be reduced to exclude time spent on purely clericalwork;
(7) Plaintiff's requested 2.0 multiplier is unfounded; (8)
Plaintiff's lodestar should be reduced to account for Plaintiff's
limited success; and (9) Plaintiff's total award should be
reduced to exclude certain costs already included in Plaintiff's
Bill of Costs. GNC also argues that any award of attorney's fees
to Plaintiff should be offset by GNC's attorney's fees award.
In his Report and Recommendation, Magistrate Judge Chen rejects
most of GNC's arguments*fn7 and recommends a total lodestar
of $320,031.00. In establishing the lodestar, Judge Chen finds
Plaintiff's requested hourly rates to be reasonable and, with a few minor
modifications,*fn8 finds Plaintiff's purported hours to be
reasonable as well. However, because Plaintiff achieved limited
success in the litigation, Judge Chen recommends a thirty-five
percent (35%) reduction to the lodestar. Judge Chen also
recommends an award ofcosts in the gross amount of $6,550.24,
reduced by thirty-five percent, for a total cost award of
$4,257.66. The total fees and costs award recommended is
GNC objects to the amount of fees awarded to Plaintiff in
general and, specifically, contends that Judge Chen erred by: (1)
failing to reduce Plaintiff's lodestar for fees pertaining to the
unsuccessful and unrelated FEHA claims; and (2) failing to adjust
Plaintiff's lodestar by a greater amount to account for
Plaintiff's limited success in the litigation.
Having reviewed the record in its entirety, including Judge
Chen's Report and Recommendation, the Court finds that only some
of Judge Chen's recommendations should be adopted by the Court.
Judge Chen's specific recommendations, and the Court's own
findings and conclusions, are detailed below.
A. Reasonable Hourly Rate
The first step in the lodestar analysis is to establish a
reasonable hourly rate for Plaintiff's attorneys and paralegal
staff. Determining a reasonable hourly rate is a critical
inquiry. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th
Cir. 1987) (citing Blum v. Stenson, 465 U.S. 886, 895 n. 11
(1984)). The Court must consider several factors, including the
experience, skill and reputation of the applicant, and must look
to the rate prevailing in the community for similar work
performed by attorneys of comparable skill, experience, and
reputation. Chalmers v. City of Los Angeles, 796 F.2d 1205,
1210-11 (9th Cir. 1985). The Court may not merely refer to the
rates actually charged to the prevailing party. Id. at 1210-11.
Instead, the reasonable hourly rate is based on the "market rate"
for the services rendered. See People Who Care v. Rockford Bd.
of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996). It is the
applicant's burden to produce evidence, other than the
declarations of interested counsel, that "the requested rates are
in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill
and reputation." Jordan, 815 F.2d at 1263. In addition, in
figuring a reasonable fee, the Court should consider the outcome
of the action, the customary fees, and the novelty or difficulty
of the issues presented. Chalmers, 796 F.2d at 1211 (citing
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
1975)). Once counsel has established the reasonableness of his or
her rate, then the burden shifts to the opposing party to
demonstrate why the rate should be lower. Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 554 (7th Cir. 1999).
Plaintiff requests that her attorneys be awarded fees at the
following hourly rates: (1) $325 per hour for attorney Michael
Hoffman; (2) $300 per hour for attorney Josh Rosenthal; (3) $285
per hour for attorney Marilyn Minger; (4) $65 per hour for
paralegal Katie Youngmark; and (5) $65 per hour for apprentice
Geraldine Camp. GNC objects to the hourly rates requested for Mr.
Hoffman and Ms. Minger on the grounds that they are unreasonable
in light of Mr. Hoffman and Ms. Minger's demonstrated lack of
skill in the litigation. GNC contends that an hourly rate of $150
for Mr. Hoffman and Ms. Minger is more in line with their
demonstrated skill and experience. GNC also objects to the
requested hourly ...