United States District Court, N.D. California
September 20, 2005.
MERCEDES NAVARRO, Plaintiff,
GENERAL NUTRITION CORPORATION, Defendant.
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.
B. Procedural Background
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 rate for Mr. Rosenthal on the grounds that
documentation relating to Mr. Rosenthal's hours has not been
provided. The requested rates for Ms. Youngmark and Ms. Camp are
1. Mr. Hoffman's Hourly Rate
Plaintiff's "proof" of the reasonableness of Mr. Hoffman's $325
hourly rate is primarily premised on Mr. Hoffman's own
declaration, which establishes only that: (1) Mr. Hoffman was the
lead attorney of record during the trial; (2) Mr. Hoffman
received a degree from Golden Gate University School of Law in
1991; (3) Mr. Hoffman was admitted to the California Bar in 1991;
and (4) for the past ten years, Mr. Hoffman has spent the
"majority" of his time "representing employees in discrimination
and other employment litigation." See June 16, 2004 Declaration
of R. Michael Hoffman ("Hoffman Declaration"). Plaintiff has also
submitted affidavits from Michael Rubin and Brad Seligman, local
attorneys with roughly twenty-five years of trial experience, who
contend that the applicable market rate for attorneys in the Bay
Area with approximately ten years experience is either at or above $325 per hour.*fn9 See Decl. of
Michael Rubin ("Rubin Decl.") at ¶ 4; Decl. of Brad Seligman
("Seligman Decl.") at ¶ 9.*fn10 During the proceedings
before Judge Chen, Plaintiff also provided docket reports showing
that, in the entirety of his career, Mr. Hoffman has served as
the lead counsel of record in ten federal cases, five of which
proceeded to trial. See Pl's Req. for Jud. Not. at Ex. A at
Based on Plaintiff's evidence, Judge Chen recommends a finding
that an hourly rate of $325 for Mr. Hoffman is reasonable. In
reaching this conclusion, however, Judge Chen notes that
Plaintiff's evidence is probative of Mr. Hoffman's length of
experience only, and does not actually speak to whether Mr.
Hoffman's reputation or skill warrants such a fee. Judge Chen's
recommendation is also largely based on his finding that GNC did
not produce enough specific evidence to refute the reasonableness
of Mr. Hoffman's fee.*fn11 He acknowledges, however, that
"[a]n argument could be made that Mr. Hoffman's alleged
misconduct [during the litigation] might indicate a lack of
skill, which would be a basis for a reduction of his reasonable
Having considered the same evidence, the Court finds that it
does not agree with Judge Chen's conclusion that Plaintiff has
met her initial burden of proof with respect to the
reasonableness of Mr. Hoffman's fee. First, it is clearly
established in the Ninth Circuit that it is the applicant's
burden to produce specific evidence, other than the declarations
of interested counsel, that the requested rates are in line with
those prevailing in the community for lawyers with comparable
skill and reputation. Jordan, 815 F.2d at 1263. The burden
does not shift to GNC to produce rebuttal evidence unless and
until Plaintiff meets her initial burden. Spegon, 175 F.3d at 554.
Here, the only evidence Plaintiff has produced concerning the
reasonableness of Mr. Hoffman's rate are the affidavits of Mr.
Rubin and Mr. Seligman and the docket reports that chronicle Mr.
Hoffman's fairly scant federal trial experience. As Judge Chen
correctly notes, however, Mr. Rubin and Mr. Seligman's affidavits
are devoid of any evidence regarding Mr. Hoffman's skill and
reputation. In fact, it is not clear whether Mr. Rubin or Mr.
Seligmanare even familiar with Mr. Hoffman, or whether they are
merely expressing generalized opinions regarding the market rate
for attorneys with ten years of litigation experience. As for Mr.
Hoffman's trial experience, the docket sheets actually undermine
Plaintiff's assertion that a rate of $325 per hour is a
reasonable fee for Mr. Hoffman. Notably, in the most recent case
Mr. Hoffman litigated in federal court before this one, which was
in 2000, Mr. Hoffman's client prevailed on summary judgment, but
Mr. Hoffman, personally, was sanctioned and ordered to reimburse
the defendants' attorneys' fees and costs. See Pl's Req. for
Jud. Not. at Ex. A. at p. 51. Further, Mr. Hoffman does not
appear to have been victorious in any of the other federal cases
he has tried to verdict, save one case that settled shortly after
the verdict was rendered. See Pl's Req. for Jud. Not. at Ex. A.
at pp. 2-3. Because Plaintiff's evidence does not sufficiently
establish that an hourly rate of $325 for Mr. Hoffman is
reasonable, the Court must make its own determination regarding
the appropriate fee.
Based on the Court's observation of Mr. Hoffman's skill and
experience in this litigation, the Court finds that Mr. Hoffman's
overall performance in the underlying litigation was not
commensurate with other attorneys of his experience or length of
practice who have appeared before this Court. See Ackerman v.
Western Electric Co., Inc., 643 F. Supp. 836, 867 (N.D. Cal.
1986) (finding a rate of $95 per hour to be reasonable for an
attorney whose performance was "erratic" and "below the standard
for experienced lawyers."). Specifically, the Court notes that:
(1) Mr. Hoffman was ordered to show cause by this Court after
failing to appear for the initial Case Management
Conference;*fn12 (2) Mr. Hoffman waited until trial to
dismiss his client's race discrimination claim from the lawsuit
even though he admits that he was aware, from the time the Complaint was filed, that the claim was groundless;*fn13 (3)
Mr. Hoffman did not dismiss Defendant Crisp from the lawsuit even
after conceding in correspondence with Defendants that she was
not a proper defendant in the case;*fn14 (4) Mr. Hoffman
submitted a sworn declaration in opposition to Defendants' motion
to continue the pretrial and trial dates that included false
statements regarding his client's readiness for trial;*fn15
(5) Mr. Hoffman filed an untimely cross-motion for summary
judgment in violation of the Civil Local Rules;*fn16 (6) Mr.
Hoffman repeatedly missed filing deadlines and was admonished
during the pretrial conference for failing to file certain papers
by the Court-ordered deadline;*fn17 (7) Mr. Hoffman was
admonished by this Court for speaking to a GNC witness during a
break in her testimony at trial;*fn18 and (8) Mr. Hoffman
admitted during the proceedings before Judge Chen that
Plaintiff's failure to obtain all of the relief she may have been
entitled to was due to certain errors he committed while drafting
the jury verdict form.*fn19
Again, based on this Court's own observations of Mr. Hoffman's
conduct during the underlying proceedings, the Court finds that
an hourly rate of $325 per hour is too high, particularly in
light of the fact that Mr. Hoffman's opposing counsel in this
matter, Mr. Keller who has been litigating for over twenty-five
years and has tried over sixty cases to verdict charged his
client $275 per hour for work performed on the same case.*fn20 However, the Court also finds that GNC's
suggested rate of $150 is too low and is not supported by any
evidence or statistics. In the absence of any specific guidance
from the parties, the Court relies on its own judgment and
experience in determining fees, as well as a recent order issued
by Judge Walker in Yahoo!Inc. v. Net Games, Inc.,
329 F. Supp. 2d 1179, 1189 (N.D. Cal. 2004), which sets forth a comprehensive
examination of the relevant statistical data and finds that the
average market rate for attorneys practicing in San Francisco is
$190 per hour. See id. at 1189 (analyzing statistics from the
United States Census Bureau and the Bureau of Labor Statistics).
Based on this Court's observations, and its assessment of Mr.
Hoffman's skills, the Court finds that a rate of $190 per hour
for Mr. Hoffman is appropriate. Accordingly, Mr. Hoffman shall be
compensated at a rate of $190 per hour.
2. Mr. Rosenthal's Hourly Rate
With respect to Mr. Rosenthal's purported hourly rate, the
Court notes that Plaintiff did not file any supporting
documentation concerning Mr. Rosenthal in support of her Motion
for Attorney's Fees. Although Plaintiff submitted the
Supplemental Declaration of Michael Hoffman in response to GNC's
opposition, this document merely provides that: (1) Mr. Rosenthal
was admitted to the California State Bar in 1997; and (2) Mr.
Rosenthal is employed with Medlin Real Estate Law Group in
Oakland. The Court finds that this evidence falls substantially
short of Plaintiff's requisite burden of proof. Jordan,
815 F.2d at 1263 (applicant's burden is to produce evidence, other
than the declarations of interested counsel, that the requested
rates are reasonable). Notably, not only has Plaintiff failed to
provide a declaration from Mr. Rosenthal himself, but Plaintiff
does not provide a curriculum vitae for Mr. Rosenthal or any
other information regarding Mr. Rosenthal's education, litigation
experience, skill, or reputation. In fact, it is not even clear
from Mr. Hoffman's Supplemental Declaration whether Mr. Rosenthal
actually practices civil litigation or has any experience with
employment litigation in particular. Accordingly, the Court does
not agree with Judge Chen's conclusion that $275 per hour is a
reasonable rate for Mr. Rosenthal. Since it is clear that Mr.
Rosenthal has less experience than Mr. Hoffman and had a very limited role in the underlying
proceedings, and since there is no basis for the Court to
conclude that Mr. Rosenthal has the requisite experience to
support an hourly rate of $275, the Court finds that Mr.
Rosenthal shall be compensated at an hourly rate of $150.
3. Ms. Minger's Hourly Rate
With respect to Ms. Minger, Plaintiff has established: (1) that
Ms. Minger earned a Bachelor of Arts in applied mathematics in
1998; (2)that Ms. Minger graduated from the University of
California at Davis Martin Luther King Junior School of Law in
1991; (3) that Ms. Minger was admitted to the California bar in
1991; (4) that Ms. Minger is a member of all of the courts of the
State of California and the United States District Court for the
Northern District of California; (5) that Ms. Minger has spent
about fifty percent of her time in civil litigation since 1991,
but only a year in discrimination and employment litigation; and
(5) that Mr. Rubin believes that Ms. Minger's rate is an accurate
market rate for lawyers with her experience and qualifications.
Based on this evidence, Judge Chen concludes that an hourly rate
of $285 is reasonable. However, Judge Chen expresses some
reservation with regard to whether Plaintiff has sufficiently
established that Ms. Minger actually has the same level of
"skill" and "experience" as other attorneys typically compensated
at this hourly rate.
Again, the fact that Plaintiff's evidence is silent with
respect to Ms. Minger's skill and reputation does not suffice to
meet Plaintiff's burden of proof. Accordingly, the Court must
make its own determination regarding the appropriate rate for Ms.
Minger's services. Based on the evidence the Court has been
provided, the Court finds that Ms. Minger is less experienced
than Mr. Hoffman. However, it is not clear that she is more
experienced or skilled than Mr. Rosenthal. Accordingly, the Court
finds that an hourly rate of $150 for Ms. Minger is reasonable
4. The Paralegal's Hourly Rates
With respect to Ms. Camp, Plaintiff has provided the following
information: (1) that Ms. Camp is certified by the California
State Commissioner of Bar Examiners to study law as an
apprentice; (2) that Ms. Camp attended St. John Fisher College in
Rochester, New York from 1990 to 1994; (3) that Ms. Camp worked
for two years as an executive assistant for a realestate
development firm in San Francisco; and (4) that Ms. Camp has worked for Mr. Hoffman since January 2001. With
respect to Ms. Youngmark, Plaintiff provides no relevant
information, other than a statement from Mr. Hoffman that Ms.
Youngmark is an "experienced paralegal." This evidence is also
insufficient to meet Plaintiff's burden of proof. However, as
Judge Chen correctly notes, Plaintiff's requested rate of $65 per
hour is unopposed by GNC. Further, as Judge Chen notes, $65 per
hour is actually below the prevailing market rate. See Report
and Recommendation ("R&R") at 8. Accordingly, the Court hereby
adopts Judge Chen's recommendation and finds that Ms. Camp and
Ms. Youngmark shall be compensated at a rate of $65 per hour.
B. Reasonable Hours
The next step in calculating the lodestar is for the Court to
determine the number of hours reasonably expended in the
litigation. Chalmers, 796 F.2d at 1210. The applicant must
justify her claim by submitting detailed time records. U.S. v.
City and County of San Francisco, 699 F. Supp. 762 (N.D. Cal.
1988). The documentation submitted should be sufficient to
satisfy the Court that the hours expended were actual,
non-duplicative and reasonable, and to apprise the Court of the
nature of the activity and the claim on which the hours were
spent. See Hensley, 461 U.S. at 437; Wehr v. Burroughs Corp.,
477 F.Supp. 1012, 1016-18 (E.D.Pa. 1979). Further, a fee
applicant must show that she exercised "billing judgment" in the
preparation of the attorney's fee application. Copeland v.
Marshall, 641 F.2d 880, 891 (1980) (en banc). "Hours not
properly billed to one's client are not properly billed to one's
adversary. . . ." Copeland, 641 F.2d at 891. Only hours found
to have been reasonably expended may be allowed. Hensley,
461 U.S. at 434 (holding that a plaintiff is not entitled to an award
of attorney's fees for hours which were duplicative,
unproductive, excessive or otherwise unnecessary). After
reviewing the applicant's records, the Court may adjust the hours
downward if it believes the documentation to be inadequate, if it
finds that the hours are duplicative, or if it finds that the
hours are excessive or unnecessary. Copeland, 641 F.2d at 891,
891 n. 18. Additionally, the Court should not include time spent
litigating claims upon which the party seeking the fee did not
ultimately prevail if the Court is able to determine that the
unsuccessful claims are truly "fractionable" from the successful
When an attorney is notable to provide the Court with
contemporaneous billing records, reconstruction may be used as a basis for an award of attorney's fees. See City
of Detroit v. Grinnell Corp., 560 F.2d 1093, 1102-1103 (2d Cir.
1977); United States v. State of Washington, 626 F.Supp. 1405,
1446, 1516 (W.D.Wash. 1985). However, the Court must "subject the
retrospectively created record to a more exacting scrutiny than
[it] would bring to contemporaneous and detailed records."
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.
1984). Further, courts "frow[n] on block billing where discrete
and unrelated tasks are lumped into one entry, as the practice
can make it impossible . . . to determine the reasonableness of
the hours spent on each task." See Defenbaugh v. JBC &
Associates, Inc., 2004 WL 1874978, at *9 (N.D. Cal. Aug. 10,
2004) (reducing hours billed for separate tasks billed as one
Here, Plaintiff requests that her attorneys be compensated as
follows: (1) 772.5 total hours for Mr. Hoffman (comprised of
684.5 hours for pretrial and trial work and 88 hours for time
spent on the fees motion); (2) 9.5 hours for Josh Rosenthal; (3)
207.25 hours for Ms. Minger (comprised of 202.75 hours for
pretrial and trial work and 4.5 hours for time spent on the fees
motion); (4) 9.1 hours*fn21 for Ms. Youngmark; and (4)
272.60 hours for Ms. Camp. In support of the requested hours,
Plaintiff has provided the Court with statements purportedly
based on contemporaneous records that show the hours billed
over the course of the litigation. See Hoffman Decl. at Ex. 3,
4; Minger Decl. at Ex. A; Youngmark Decl. at p. 2. The actual
contemporaneous records, however, have not been provided.
Plaintiff has also failed to provide the Court with any
documentation regarding Mr. Rosenthal's hours. Instead, in the
Hoffman Declaration, Mr. Hoffman avers that Mr. Rosenthal billed
9.5 hours on the case in relation to his attendance of the
depositions of Dr. Lan Lui and Dr. Greer. See Hoffman Decl. at
Judge Chen recommends the following calculation of hours: (1)
772.2 hours for Mr. Hoffman; (2) 207.25 hours for Ms. Minger; (3)
9.5 hours for Mr. Rosenthal; (4) 8.8 hours for Ms. Youngmark; and
(5) 104.85 hours for Ms. Camp. Although Judge Chen agrees with
GNC that time relating to Plaintiff's FEHA and unfair competition
claims should be excluded due to the fact that such claims are
sufficiently unrelated to Plaintiff's successful FMLA claim,
Judge Chen concludes that GNC has not demonstrated that Plaintiff
spent any time pursuing her FEHA claims. Accordingly, the only time
Judge Chen recommends excluding from the lodestar for Plaintiff's
unsuccessful claims is a 0.3 hour time entry included in Mr.
Hoffman's billing statement relating to Plaintiff's unfair
GNC specifically objects to Judge Chen's recommendation and
argues that the total hours must be reduced to account for time
spent pursuing Plaintiff's frivolous FEHA and unfair competition
claims. Because this is a specific objection to the report, the
Court must review this portion of the report de novo. See
Having reviewed Plaintiff's billing statements, the Court
declines to adopt this portion of Judge Chen's report.
Significantly, although Judge Chen concludes that, with respect
to the hours billed by Mr. Hoffman and Ms. Minger, Plaintiff's
documentation is sufficient to meet her preliminary burden of
proof,*fn22 he also points out that Plaintiff: (1) has
failed to address whether her attorneys have exercised "billing
judgment"; and (2) has failed to offer evidence that her
attorneys reduced specific hours for inefficiency.*fn23
Given the substantially poor detail provided by Mr. Hoffman, Ms.
Minger, and Ms. Youngmark's billing statements, which consist of
the type of "block billing" that is typically scorned by the
courts, the Court finds that an "exacting" scrutiny of
Plaintiff's requested hours is warranted. Further, Judge Chen's
conclusion that Plaintiff's billing statements do not "reveal any
overbilling or duplication in effort" is not supported by the
record. The Court's analysis of Plaintiff's billing records is
set forth below.
1. Mr. Hoffman's Hours
With respect to Mr. Hoffman, Judge Chen recommends a finding
that 684.5 hours for Mr. Hoffman's trial and pretrial work is
reasonable. However, having reviewed the same records, the Court
finds that many of Mr. Hoffman's time entries involve purely clerical work, are
excessive for the work performed, are unnecessarily duplicative,
or relate to inexcusable procedural errors that would not have
been performed by "reasonably competent counsel" and should not
be billed to one's client, much less one's opposing counsel.
Thus, the Court finds that only 561.96 hours are reasonable and
compensable. Specifically, the following hours must be
Date Hours Description
3/18/03 0.1 "Review Case Management Scheduling Order For Reassigned Case: CMC
changed to 7/23/2003, update calendar"*fn24
7/1/03 0.4 "Review letter from Cooper regarding meet and confer to file for filing of a
joint case management conference statement"
7/3/03 1.6 "Answer letter to Cooper regarding joint case management statement, meeting
with Marilyn to discuss answer prior to her drafting correspondence, work on
7/7/03 0.2 "Review Joint Case Management Statement filed by GNC."
7/11/03 0.4 "Review Clerk's Notice re: Failure to E-File and/or Failure to Register as an
7/14/03 2.1 "Investigate and review E-Filing and Registration procedures and system"*fn25
7/15/03 0.3 "Discuss with Minger CMC letter to Steve Danz advising him of our
unavailability to attend case management conference, and request for court
coverage from Danz and Gerber, call to client"
7/29/03 3.5 "Review Order to Show Cause, work on Declaration of R. Michael Hoffman
in Response to Order to Show Cause re missed case management conference
by Mercedes Navarro, continue work on case management statement"*fn26 8/10/03*fn27 1.3 "Prepare Declaration in Response to Order to Show Cause re missed case
management conference by Mercedes Navarro"
8/11/03 1.1 "File Declaration re missed case management conference
Review Clerk's notice re:Failure to E-File regarding manually filed document
OSC set aside. Calendar Further Case Management Conference to be held
on 10/16/2003 3:00 p.m. via telephone before Judge Armstrong. Review and
calendar new deadlines."
10/17/03 1.8 "Review and calendar notice of Scheduling Conference on 10/16/2003 before
Judge Jury Trial set for 5 days on 3/22/2004 08:30 AM. Motion cut-off
deadline set for 2/3/2004. Case management scheduled order of Discovery
due by 1/16/2004 and Motions due by 2/3/2004 calendared. Review notice
of case referral to Magistrate Judge Edward M. Chen for Settlement,
calendar, discussion with client 10/20/2003
Review notice of case referred to Mediation and calendar. Final Pretrial
Conference set for 3/9/2004 01:00 PM. Calendar
Review notice of clerk's re: Plaintiff's Failure to E-File and/or Failure to
Register as an E-Filer. Perform E-Filing procedures, and Registration
10/28/03 1.0 "Review and calendar Court order re-Notice of Settlement Conference and
Settlement Conference Order. Confirm Settlement Conference set for
1/15/2004 at 09:30 AM"*fn29
2/8/04 1.0 "Prepare Declaration of R. Michael Hoffman Motion to continue trial date"*fn30
4/4/4 0.3 "Review email and attachment from Marilyn regarding Unfair Competition."*fn31 5/24/04 15 "Jury Trial. Review Motion for Judgment as a Matter of Law filed by GNC,
work on opposition. Review Proposed Jury Instructions by GNC,
15 Jury Trial. Review Brief re GNC's Further Citations in Support of GNC's
Proposed Jury Instruction No. 34."*fn32
5/25/04 15 "Review of Proposed Form of Verdict by GNC Joint Verdict Form Both
TOTAL 60.1 Hours
In addition to the specific time entries noted above, Mr.
Hoffman's billing statement contains several block entries that
include non-billable clerical or duplicative work, work performed
on the FEHA and unfair competition claims, or work that served no
legitimate purpose and unnecessarily prolonged the proceedings.
on January 26, 2004, Mr. Hoffman spent 0.5
hours scheduling depositions, but also billed time for a
"review[ing] letter and proposed order from Leverett regarding
stipulation to an order dismissing Lorraine Crisp from lawsuit."
Inexplicably, Mr. Hoffman never filed the stipulation, despite
the fact that Defendants understood that he had agreed to do so.
Additionally, on April 13, 2004, Mr. Hoffman billed 4.5 hours for
work relating to reviewing Defendants' objections to Plaintiff's
summary judgment evidence, but also included in this entry is the
time Mr. Hoffman spent reviewing Defendants' objection to
Plaintiff's Separate Statement of Undisputed Material Facts,
which was filed in violation of this Court's standing orders. Mr.
Hoffman's April 27, 2004 time entry also suggests that he billed
time relating to Defendants' motion in limine to preclude
evidence about discrimination based upon race and/or religion
filed by GNC.
Since Mr. Hoffman has "block billed," it is impossible for the
Court to parse out a specific amount of hours that should be
excluded from these time entries. Accordingly, the Court hereby
reduces Mr. Hoffman's remaining hours by ten percent to further
eliminate any unbillable hours that have been inappropriately
included in Mr. Hoffman's block billing. This results in a total
of 561.96 hours for pretrial and trial work.
With respect to Mr. Hoffman's requested hours relating to the
fees motion, Judge Chen recommends a finding that 88 hours for work performed on the fees motion is
reasonable. However, due to the fact that the documentation Mr.
Hoffman has submitted to the Court is inadequate in many regards,
and the fact that Judge Chen noted at the fee petition hearing
that the briefing submitted by both parties was fairly
poor,*fn35 the Court does not agree that 88 hours is
reasonable. Accordingly, the Court hereby adjusts the hours
downward to 40, which the Court finds to be a fair estimate of
the amount of time it would have taken reasonably competent
counsel to adequately research and brief the fees motion.
2. Ms. Minger's Hours
With respect to Ms. Minger, Judge Chen recommends a finding
that 207.25 hours for Ms. Minger's trial and pretrial work is
reasonable. However, in many regards, Ms. Minger's billing
statements lack the type of specificity that is typically
required of fee applicants. For example, all of Ms. Minger's
entries relating to the trial merely state "Attendance at trial."
It is also apparent that Ms. Minger billed for time spent on
tasks that are purely clerical in nature. Having reviewed Ms.
Minger's billing statement closely, the Court finds that the
following hours must be eliminated:
Date Hours Description
07/02/03 0.25 "Telephone conference with Allison Lane Cooper re joint case management
7/03/03 1.50 "Telephone conference with Allison Lane Cooper re joint case management
statement; meeting with M. Hoffman re case management statement; email to
Allison Cooper re same"
7/15/03 0.50 "Letter to S. Danz re case management conference"
10/06/03 0.83 "Prepare case management statement"
4/20/04 0.75 "Receive training on filing electronically with court."*fn37 4/20/04 1.50 "Convert documents to PDF and file with court"*fn38
Additionally, like Mr. Hoffman, it appears that Ms. Minger
performed some work on frivolous or unmeritorious claims and also
performed work that served no legitimate purpose and
unnecessarily prolonged the proceedings. For example, on April 4,
2004, Ms. Minger billed 16.42 hours for work that included a
"conference with Mr. Hoffman re infair [sic] competition and
document production." Ms. Minger also billed a substantial amount
of time in early April 2004 relating to Plaintiff's opposition to
Defendants' Motion for Summary Judgment. While the majority of
this time is compensable, some of it likely included work spent
on Plaintiff's untimely "cross-motion" which was ultimately
stricken by the Court. The vagueness of Ms. Minger's billing
statement limits the Court's ability to parse out specific hours
relating to this type of work. Accordingly, Ms. Minger's total
hours are hereby reduced by ten percent. Thus, the total amount
of hours for Ms. Minger's pretrial and trial work is 177.67.
With respect to the work spent on the fees motion, Ms. Minger
claims to have billed 4.5 hours. This is reasonable and is
therefore included in the total amount of hours for Ms. Minger.
3. Mr. Rosenthal's Hours
With respect to Mr. Rosenthal, Judge Chen recommends a finding
that 9.5 hours is reasonable. However, the Court finds that all
of Mr. Rosenthal's hours must be excluded, since absolutely no
documentation relating to these hours has been submitted to the
Court. Stewart v. Gates, 987 F.2d 1450, 1453 (9th Cir. 1993)
(holding that it is an abuse of discretion to award fees for
hours not properly documented).
4. Ms. Youngmark's Hours
With respect to Ms. Youngmark, Judge Chen recommends a finding
that 8.8 hours is reasonable.*fn39 Ms. Youngmark's billing
statement, however, is so general and vague that it provides the
Court with almost no guidance whatsoever. Having examined Ms. Youngmark's billing
statement closely, the Court finds that the following hours must
Date Hours Description
2/14/03 0.50 "Prepare Motion to Withdraw and Proposed Order"*fn40
2/22/03 0.30 "Revisions to Complaint"*fn41
2/27/03 0.20 "Additional revisions to Complaint"
2/13/04*fn42 0.30 "Prepare Stipulation/Order re Dismissal of Action Without Prejudice"
TOTAL: 1.3 Hours
Further, for the most part, the remainder of Ms. Youngmark's
time entries merely state that Ms. Youngmark performed "legal
research" generally, or "legal research re opposition to alleged
unlawful employment practices and retaliation." Again, because
these descriptions are so nebulous, the Court is limited in its
ability to exclude specific time spent on unrelated,
unmeritorious claims. Accordingly, Ms. Youngmark's time is hereby
reduced by ten percent. The remaining amount of compensable hours
5. Ms. Camp's Hours
With respect to Ms. Camp's billing statement, Judge Chen
recommends a finding that only 104.85 out of the total 272.6
hours requested is compensable. Judge Chen appears to have
appropriately scrutinized Ms. Camp's billing records and excluded
hours spent on purely clerical tasks, such as saving PDF files (a
task which has purportedly consumed roughly 60 hours of Ms.
Camp's time). The Court therefore concurs with Judge Chen that
the following hours are not reasonable:
Date Hours Description 7/11/03 1.5 "Investigate and review E-Filing and Registration procedures and system"*fn43
10/20/03 3.0 "Introduce E-filing procedures to Hoffman and Minger."
1/04 20 "File maintenance for month of January"
2/04 20 "File maintenance for month of February"
3/04 20 "File maintenance for month of March"
4/04 20 "File maintenance for month of April"
5/04 20 "File maintenance for month of May"
In addition, the majority of Ms. Camp's billing statement
consists of "block" entries that inappropriately include both
billable and non-billable hours. Because the Court is unable to
separate the billable from the non-billable, and because the
amount of non-billable work Ms. Camp performed appears to be
quite substantial, Judge Chen's recommendation that the total
amount of hours requested be reduced by fifty percent is
appropriate. Accordingly, the Court finds that only 104.85 hours
for Ms. Camp shall be included in the lodestar.*fn44
C. Final Lodestar
In conclusion, the Court partially rejects Judge Chen's
recommended lodestar calculation and adopts, instead, the
following lodestar calculation: NAME APPROVED REQUESTED APPROVED AMOUNT
HOURLY RATE HOURS HOURS
Michael Hoffman $190 772.20 601.96 $114,372.40
Josh Rosenthal $150 9.50 0 $0
Marilyn Minger $150 207.25 182.17 $27,325.50
Geraldine Camp $65 272.60 104.85 $6,815.25
Katie Youngmark $65 9.10 7.02 $456.30
D. Adjustments to the Lodestar
In computing an award of fees under Hensley, the Court must
perform a two-part analysis. Hensley, 461 U.S. at 434. Under
the first part of the analysis, the Court must ask whether the
claims upon which the plaintiff failed to prevail were related to
the plaintiff's successful claims. Id. If unrelated, the final
fee award may not include time expended on the unsuccessful
claims. Id. This Court has already excluded the time spent on
Plaintiff's unsuccessful FEHA and unfair competition claims,
which are the only claims that GNC argues are unrelated to
Plaintiff's FMLA cause of action. See Hensely, 461 U.S. at 434
(unsuccessful claims are "unrelated" if they involve "distinctly
different claims for relief that are based on different facts and
legal theories."). Accordingly, the Court proceeds to the next
step in the analysis, which is whether an adjustment to the
lodestar is warranted.
If there are unsuccessful and successful claims that are
related, under the second part of the analysis, the Court must
evaluate the "significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the
litigation." Id. at 435. If the plaintiff obtained "excellent
results," full compensation may be appropriate, but if only
"partial or limited success" was obtained, full compensation may
be excessive and the lodestar should be reduced. However, when an
adjustment is made on the basis of either the exceptional or
limited nature of the relief obtained by the plaintiff, the Court
must make clear that it has considered the relationship between the amount of the fees
awarded and the results obtained. Hensley, 461 U.S. at 437.
Additionally, the Court must not hesitate to reduce the lodestar
computed when the result obtained is the product of an
unnecessarily extended proceeding. See Lindy Bros. Builders,
Inc. of Philadelphia v. American Radiator & Standard Sanitary
Corp., 540 F.2d 102, 118 (3rd. Cir. 1976); In re Equity Funding
Corp. of America Securities Litigation, 438 F. Supp. 1303, 1328
(C.D. Cal. 1977).
In her Motion for Attorney's Fees, Plaintiff contends that her
lodestar should be enhanced by a multiplier of 2.0 (or two
hundred percent) because "it was apparent to Plaintiffs [sic]
counsel [when he decided to take this case] that this case would
be more difficult than other employment discrimination matters he
had handled for several reasons." See Mot. at 14:1-2. Plaintiff
alleges that the following factors made the case "more
difficult": (1) it was a lawsuit against a large corporation; (2)
Plaintiff would have to prove that GNC's FMLA policies and
procedures towards Plaintiff were unfair; and (3) the effect of
the application of the disability laws, and whether Plaintiff was
qualified under the FMLA, were "novel" issues. GNC, on the other
hand, argues that Plaintiff's lodestar should be reduced by
fifty percent in order to account for Plaintiff's limited
As GNC correctly notes in its Motion for De Novo
Determination, it is beyond dispute that Plaintiff's "success" in
the litigation was, in fact, quite limited. Specifically:
Plaintiff prevailed only on her FMLA interference
claim and not on any of her other related claims,
including FMLA retaliation, CFRA interference, and
Plaintiff requested an award of $665,500 from the
jury, but only received an award of $60,500 in back
Plaintiff did not recover front pay or future
Plaintiff did not recover emotional distress
Plaintiff did not obtain reinstatement or other
injunctive relief; and
Plaintiff did not recover punitive damages.
Based on these undisputed facts, Plaintiff's request for an
upward adjustment to the lodestar is unwarranted. Indeed, the
factors that Plaintiff identifies in support of the requested
multiplier are the type of general, vague statements that apply to virtually every
employment case. Accordingly, the appropriate focus of this
inquiry is whether the lodestar should be reduced and, if so, by
Judge Chen recommends a thirty-five percent reduction to the
lodestar, given the fact that the relief Plaintiff obtained was
short, both quantitatively and qualitatively, of what she sought
in the litigation. In its Motion for DeNovo Determination, GNC
requests that the Court reject the Magistrate's recommendation
and, instead, reduce Plaintiff's lodestar by at least fifty
percent. GNC does not, however, provide the Court with any
relevant or analogous authorities in support of its contention
that a fifty percent reduction is appropriate. For example, in
Williams v. Mensey, 785 F.2d 631, 640 (8th Cir. 1986), the
plaintiff prevailed on one claim and was awarded nominal damages
of $1.00. Id. Accordingly, the court awarded the plaintiff only
ten percent of the fees requested. Id. In contrast, here,
although the damages that Plaintiff received were not significant
in light of her expectations and settlement demands, she receive
more than mere "nominal" damages. Also, in Harris v. Marhoefer,
24 F.3d 16, 17-18 (9th Cir. 1994), where the lodestar was reduced
by fifty percent, the plaintiff obtained a judgment of $25,000
against one defendant out of the $5 million requested. Id.
Plaintiff's success in this case was not nearly as limited as the
plaintiff's success in Harris.
However, under Hensley, the Court is required to consider the
relationship between the amount of the fees awarded and the
results obtained, and whether the fees incurred resulted from
proceedings which were unnecessarily protracted. Hensley,
461 U.S. at 437. Here, given that Plaintiff received $60,500 in
damages, and considering that some of the fees incurred were the
result of unnecessarily extended proceedings, including the fact
that the case was initially scheduled to go to trial in March
2004, the Court finds that a forty percent reduction is
appropriate. See Lindy Bros. Builders, Inc., 540 F.2d at 118;
In re Equity Funding Corp. of America Securities Litigation,
438 F. Supp. at 1328. Reducing the lodestar by forty percent
results in a final lodestar of $89,831.67. Accordingly, the Court
modifies the Magistrate's recommended fee reduction of
thirty-five percent to forty percent and hereby awards
Plaintiff fees in the amount of $89,381.67. E. Award of Costs
Finally, with respect to Plaintiff's requested costs, Judge
Chen notes that Plaintiff has improperly requested $9,374.88 in
statutory costs that have already been taxed by the Clerk of
Court pursuant to 28 U.S.C. § 1920. However, Judge Chen concludes
that Plaintiff may properly be awarded certain expert witness
fees and travel costs under the fee shifting provision of the
After considering Plaintiff's evidence in support of her
request, Judge Chen concludes that Plaintiff is entitled to
recover $4,350 as reimbursement for certain expert witnesses, and
$2,200.24 as reimbursement for certain travel costs. However,
Judge Chen also concludes that, due to Plaintiff's limited
success in the litigation, a thirty-five percent reduction of
these costs is warranted as well. Accordingly, Judge Chen
recommends an award of $4,257.66 in costs.
Neither party has objected to Judge Chen's recommended award of
costs, although GNC has objected to the overall lodestar
reduction recommended by Judge Chen. Since the Court has modified
Judge Chen's recommended thirty-five percent reduction to a forty
percent reduction, the awarded costs must be reduced accordingly.
Thus, Plaintiff is awarded costs in the amount of $3,930.14
F. Total Fee and Cost Award to Plaintiff.
In sum, having made certain modifications to Judge Chen's
recommendations, the Court hereby awards Plaintiff attorney's
fees and costs in the total amount of $93,311.81.
II. GNC's Motion for Attorney's Fees
In GNC's Motion for Attorney's Fees, GNC requests an award of
attorney's fees in the total amount of $494,386.00. GNC contends
that it is entitled to an award of fees on the following grounds:
(1) GNC was the prevailing party on Plaintiff's FEHA claims; (2)
an award of fees is an appropriate sanction pursuant to
28 U.S.C. § 1927*fn46 because Plaintiff's attorneys unreasonably and
vexatiously multiplied the proceedings by pursuing frivolous claims and engaging in misconduct during
trial; and (3) an award of fees is an appropriate sanction
pursuant to Federal Rule of Civil Procedure 11 because
Plaintiff's attorneys violated Rule 11 by including meritless
FEHA and unfair competition claims in Plaintiff's Complaint.
Alternatively, GNC requests that the Court award it, at a
minimum, attorney's fees in the amount of $186,454.00 (one-third
of its purported lodestar amount), pursuant to the Court's
inherent powers, to compensate GNC for the fees it incurred
responding to Plaintiff's allegedly sanctionable conduct.
Plaintiff opposes GNC's Motion on the grounds that GNC is
requesting an extreme sanction that should only be granted in
particularly egregious cases of misconduct. Plaintiff does not
object, however, to GNC's lodestar calculation.
In his Report and Recommendation, Judge Chen does not perform a
lodestar calculation for GNC. Instead, he recommends denying
GNC's Motion in its entirety. Since GNC has objected to this
portion of the report, however, the Court must conduct a de
novo review in order to determine whether GNC is entitled to an
award of fees under any of its theories of recovery.
A. The Prevailing Party on Plaintiff's FEHA Claims
GNC first asserts that it is entitled to attorney's fees as the
prevailing party on Plaintiff's FEHA race discrimination and
medical condition claims. Under FEHA, GNC may recover attorney's
fees as the prevailing party if the Court finds that Plaintiff's
FEHA claims were frivolous, unreasonable, or without foundation,
even if the claim was not brought in subjective bad faith. See
Cal. Gov. Code § 12965(b); Moss v. Associated Press,
956 F. Supp. 891, 893 (C.D. Cal. 1996) (citing Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 420-22 (1978)). An award of
attorney's fees to the prevailing defendant is particularly
appropriate where a plaintiff continues to litigate a FEHA claim
after the plaintiff knew, or should have known, that the claim
was unreasonable or without foundation. See Moss,
956 F. Supp. at 895.
Here, Plaintiff initially asserted in her Complaint that GNC
violated FEHA by discriminating against her based on her race and
"medical condition." However, Plaintiff's counsel, Mr. Hoffman,
admits that he knew, from the outset of the litigation, that her
race discrimination was baseless. Nevertheless, Mr. Hoffman
refused to acknowledge that the FEHA race discrimination claim
should be dropped until January 27, 2004, when he signed a stipulation indicating that Plaintiff would no longer
pursue the claim. Despite the fact that this stipulation was
signed, however, Mr. Hoffman did not immediately dismiss the
claim from the Complaint, causing GNC to have to file a motion in
limine during the pretrial conference aimed at Plaintiff's race
discrimination allegations. Additionally, there was no foundation
for Plaintiff's "medical condition" claim, since Plaintiff and
Plaintiff's counsel were both aware of the fact that Plaintiff
was not suffering from cancer or a genetic defect. This issue
also unnecessarily consumed time during the litigation. For
example, during trial, GNC was forced to respond to Plaintiff's
belated, and ultimately unsuccessful, motion to amend the
Complaint to substitute the meritless "medical condition" claim
for a "physical disability" claim. Based on this history, it is
beyond dispute that Plaintiff's FEHA claims were frivolous and
without foundation. Accordingly, the Court agrees with Judge Chen
that GNC has made a preliminary showing that fees are warranted
under FEHA. The Court does not, however, concur with Judge Chen's
conclusion that GNC is not entitled to attorney's fees merely
because it cannot specifically identify every time entry that
relates to GNC's defense of the FEHA claims.
To the contrary, the Court finds that GNC has complied with
Hensley by providing very detailed, contemporaneous time
records reflecting all of the attorney hours spent on the
litigation. GNC has also provided the Court with background
information concerning the two lead attorneys, including their
curricula vitae, as well as biographical information relating
to the associates staffed on the matter. Based on the information
provided by Defendants, including the Declaration of Kenneth E.
Keller, the Supplemental Declaration of Kenneth E. Keller, and
the Declaration of G. Daniel Newland,*fn47 and based on the
Court's own observation of GNC's counsel's conduct throughout the
pretrial proceedings and trial, the Court finds that GNC has
established its preliminary burden of proof with respect to the
applicable billing rates. Moreover, Plaintiff does not object to
GNC's requested billing rates. Accordingly, the Court finds the
following hourly rates to be reasonable: (1) $225 per hour for all
trial work performed by Mr. Holland and $275 per hour for the
pretrial work; (2) $275 per hour for Mr. Keller; (3) $200 per
hour for Ms. Kearns; and (4) $200 per hour for Ms. Kang.*fn48
With respect to the hours spent on Plaintiff's FEHA claims, the
Court does not agree with Judge Chen's conclusion that no time
was spent on these claims. To the contrary, it is apparent that
time was spent defending against these claims, particularly in
light of the fact that GNC has shown that it worked quite
diligently toward getting the claims dismissed from the lawsuit.
However, the Court finds that GNC's contention that it is
entitled to a fee award of $60,161.22 (consisting of 2/9 of the
fees incurred up through January 27, 2004 and 1/9 of the fees
incurred from January 27, 2004 through May 27, 2004) is
unwarranted and is not supported by any direct references to any
actual time entries in GNC's billing statements. Having reviewed
GNC's billing records, the Court has identified the following
time entries as being related to Plaintiff's FEHA claims:
Date Hours Timekeeper Description
1/27/04 3.8 Holland ". . . Extended telephone conference with opposing counsel
Hoffman regarding upcoming depositions, other discovery
issues, stipulation regarding grounds for Navarro claims, and
related matters. Correspond with G. Kelly regarding same
. . . Correspond with opposing counsel Hoffman regarding
stipulation eliminating grounds for Navarro claims, and related
matters . . ."*fn49
4/22/04 5.50 Kearns ". . . continue drafting motion in limine regarding excluding
evidence about race discrimination . . ."
5/26/04 15.50 Kearns ". . . begin drafting oppositions to plaintiff's motions (to
amend, for judgment, objection to request for judicial notice)
. . ."*fn50
5/26/04 12.20 Keller "Prepare for closing, sixth day of trial. Argue motions and
jury instructions . . ."*fn51
Additionally, it appears that Ms. Kang spent a total of 14.2
hours conducting research regarding the legal sufficiency of all of the causes of action in Plaintiff's
Complaint and preparing a memorandum summarizing her conclusions.
Quite obviously, part of this analysis necessarily included
Plaintiff's FEHA claims. Since some of the time entries noted
above include work that is unrelated to Plaintiff's FEHA claims,
however, not all of the time is appropriately included in the
lodestar calculation, and therefore a downward adjustment is
necessary. The Court finds that a reasonable estimate is that:
(a) Mr. Holland spent approximately 2.5 hours corresponding with
Mr. Hoffman to reach a stipulation regarding the race
discrimination claim; (b) Ms. Kearns spent 4.0 hours drafting a
motion in limine excluding Plaintiff's race discrimination claims
and 4.0 hours responding to Plaintiff's motion to amend her
complaint to add physical disability claims under FEHA; (c) Mr.
Keller spent 0.5 hours responding to Plaintiff's motion in Court;
and (d) Ms. Kang spent 1.5 hours analyzing Plaintiff's frivolous
The total lodestar for GNC is therefore:
Attorney Hours Rate Fees
Mr. Keller 0.5 $275 $137.50
Mr. Holland 2.5 $275 $687.50
Ms. Kearns 8.0 $200 $1,600.00
Ms. Kang 1.5 $200 $350.00
Accordingly, GNC is awarded attorney's fees in the amount of
$2,775.00, which amount shall be offset from Plaintiff's award of
B. Sanctions Under 28 U.S.C. § 1927
GNC also contends that it should be awarded fees in the amount
of at least $110,497.30 (1/3 of the purported lodestar amount)
pursuant to 28 U.S.C. § 1927. Section 1927 provides in relevant
part that "[a]ny attorney . . . who so multiplies the proceedings
in any case unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses and
attorneys' fees reasonably incurred because of such conduct."
28 U.S.C. § 1927. To be sanctioned pursuant to § 1927 in the Ninth
Circuit, the attorney must have acted recklessly or in bad faith. See United States v.
Blodgett, 709 F.2d 608, 610 (9th Cir. 1983).*fn52 The
frivolousness of a claim or argument does not by itself justify
an award of sanctions under § 1927; the additional element of
wrongful purpose is required. See Cinquini v. Donahoe, 1996 WL
79822 *8 (N.D. Cal. 1996). Ignorance, negligence, incompetence,
or even a basic lack of professional courtesy do not constitute
"bad faith." Cruz v. Savage, 896 F.2d 626, 630 (1st Cir. 1990).
GNC argues that it is entitled to fees under § 1927 because
Plaintiff's counsel engaged in the following acts of litigation
misconduct: (1) failing to appear for the initial Case Management
Conference; (2) refusing to provide the required damage and
witness disclosures pursuant to Federal Rule of Civil Procedure
26; (3) refusing to supplement the damage and witness disclosures
pursuant to Federal Rules of Civil Procedure 26 and 33; (4)
refusing to identify Plaintiff's previous medical and
psychological care providers despite Defendants' multiple
discovery requests; (5) improperly withdrawing Plaintiff's
consent to the release of medical files relating to the
litigation; (6) terminating Plaintiff's deposition only seventeen
days before trial was set to commence; (7) consistently arriving
late to Plaintiff's March 30, 2004 and April 30, 2004
depositions; and (8) withdrawing or refusing to acknowledge
numerous stipulations reached between the parties that were
intended to eliminate frivolous claims and to streamline the
case. Defendants also contend that Plaintiff's counsel
vexatiously multiplied the proceedings by pursuing frivolous
claims and by filing frivolous discovery motions relating to
Despite GNC's litany of complaints about Plaintiff's counsel,
and Mr. Hoffman in particular, GNC has only demonstrated at
best that Plaintiff's counsel acted negligently or
incompetently. There is no evidence, however, that Plaintiff's
counsel acted with an improper purpose or with bad faith. Indeed,
although it is disappointing that Mr. Hoffman failed to dismiss
the patently frivolous race discrimination claim from the case,
it is relevant to this analysis that Mr. Hoffman did not make any
effort to oppose Defendants' dismissal of the claim during the
pretrial conference. Similarly, with respect to the frivolous
medical condition FEHA claim, it appears that Mr. Hoffman's
inclusion of this claim in the lawsuit resulted from a misreading
of the relevant statute, and not from malice. While the Court does not condone
this type of carelessness, the Court also finds that Mr.
Hoffman's actions do not rise to the level of sanctionable
conduct that § 1927 contemplates. Finally, with respect to any
discovery disputes that were serious enough to have been brought
to the Court's attention during the underlying proceedings, the
Court has already considered, and denied, GNC's request for
sanctions. Accordingly, the Court hereby denies GNC's current
motion for sanctions under § 1927.
C. Rule 11 Sanctions
GNC also argues that it should be awarded attorney's fees as a
sanction pursuant to Federal Rule of Civil Procedure 11. Rule
11(b) provides in pertinent part that:
[b]y presenting to the court (whether by signing,
filing, submitting, or later advocating) a pleading,
written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of
the person's knowledge, information, and belief,
formed after an inquiry reasonable under the
(1) it is not being presented by any improper purpose
. . .
(2) the claims, defenses and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension,
modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions
have evidentiary support or, if specifically so
identified, are likely to have evidentiary support
after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted
or, if specifically so identified, are reasonably
based on a lack of information or belief.
Fed.R.Civ.P. 11(b). Further, Rule 11(c) provides that a Court
may sanction an attorney and/or a party for violating subdivision
(b). Fed.R.Civ.P. 11(c). "Courts must apply an objective test
in assessing whether the rule has been violated." Yagman v.
Republic Ins., 987 F.2d 622
, 628 (9th Cir. 1993). However, "[a]
violation of the rule does not require subjective bad faith."
GNC contends that Plaintiff and her attorneys violated Rule
11(b) by including frivolous FEHA and unfair competition claims
in her Complaint and by filing a frivolous motionto compel. In
his report, Judge Chen finds that sanctions under Rule 11 are not
warranted because GNC failed to comply with the procedural
requirements of the "safe harbor" provision of the rule. See
Fed.R.Civ.P. 11(c) (providing that a motion for sanctions may
not be presented to the Court unless, within 21 days after
service of the motion, the challenged pleading is not withdrawn
or corrected). While it is apparent that Plaintiff's counsel and
Defendants' counsel engaged in several conversations concerning
Plaintiff's FEHA and unfair competition claims, Defendants' counsel never filed a Rule 11 motion with the Court. Accordingly,
Judge Chen reached the appropriate conclusion that Rule 11
sanctions are inappropriate. Further, with respect to Plaintiff's
motion to compel, GNC has not effectively shown that the motion
was frivolous or presented for an improper purpose. See R&R at
pp. 38-40. Accordingly, the Court declines to exercise its
discretion to award fees pursuant to Rule 11.
D. Sanctions Pursuant to the Court's Inherent Powers
Last, GNC requests that the Court award sanctions under its
inherent powers. The Ninth Circuit provides that sanctions
pursuant to a Court's inherent powers "are available if the court
specifically finds bad faith or conduct tantamount to bad faith."
B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1108 (9th Cir.
2002). "[A] finding of bad faith does not require that the legal
and factual basis for the action prove totally frivolous; where a
litigant is substantially motivated by vindictiveness, obduracy,
or mala fides, the assertion of a colorable claim will not bar
the assessment of attorney's fees." Id. at 992. Here, however,
GNC has not provided any evidence that Plaintiff's counsel's
actions were motivated by vindictiveness or bad faith.
Accordingly, the Court declines to exercise its discretion to
sanction Plaintiffs' counsel.
IT IS HEREBY ORDERED THAT Defendant's Motion for a De Novo
Determination [Docket No. 332] is GRANTED IN PART AND DENIED IN
IT IS FURTHER ORDERED THAT GNC's Motion for Attorney's Fees
[Docket No. 296] is GRANTED IN PART AND DENIED IN PART. GNC is
hereby AWARDED attorney's fees award in the amount of $2,775.00.
IT IS FURTHER ORDERED THAT Plaintiff's Motion for Attorney's
Fees [Docket No. 293] is GRANTED IN PART AND DENIED IN PART.
Plaintiff is hereby AWARDED attorney's fees and costs in the
amount of $93,311.81, which shall be offset by GNC's award of
IT IS SO ORDERED.
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