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Moore v. Bank of America

January 7, 2008


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is plaintiff James Moore's ("plaintiff") motion for attorneys' fees. Plaintiff is represented by Richard M. Pearl and the firm of Green Welling LLP. For the following reasons, the court GRANTS plaintiff's motion and awards attorneys' fees in the amount of $170,257.25.


The parties are familiar with the facts and protracted procedural history of this case, so the Court need not recount them in detail here. In November of 1999, plaintiff purchased an airline ticket using his Bank of America credit card. He did not use the entire ticket and disputed the charge. Plaintiff brought suit against Bank of America ("defendant") in March of 2003, and the parties settled in May of 2005. (Doc. Nos. 1 & 110.) Per the terms of the settlement agreement, the Court dismissed the action, but retained jurisdiction in order to rule on plaintiff's motion for reimbursement of attorneys' fees and costs. On October 5, 2006, the Court granted plaintiff's motion for attorneys' fees and awarded fees and costs in the amount of $390,765.79. (Doc. No. 147.)

Defendant appealed on November 4, 2005. (Doc. No. 150.) On August 14, 2007, the Ninth Circuit affirmed this Court's grant of fees in its entirety. Moore v. Bank of Am. N.A., No. 05-56702, 2007 WL 2316426 (9th Cir. Aug. 14, 2007).

On September 11, 2007, plaintiff moved the Ninth Circuit for an award of attorneys' fees generated by the appeal. (Doc. No. 172, Ex. A, Memorandum of Law in support of Motion for Attorneys' Fees on Appeal.) Defendant filed an opposition. (Id. Ex. E, Response to Motion for Attorneys' Fees on Appeal (hereinafter "Opp.") at 2.) Plaintiff filed a reply in support of the motion on October 3, 2007. (Id. Ex. F (hereinafter "Reply").) On October 18, 2007, the Ninth Circuit granted plaintiff's unopposed motion to transfer consideration of the attorneys' fees on appeal to this Court. (Doc. No. 171, Ex. A.) On November 1, 2007, plaintiff filed a notice of the Ninth Circuit's order with this Court. (Doc. No. 171.) Plaintiff also lodged with the Court (1) the pleadings on the issue of attorneys' fees on appeal (Doc. No. 172), and (2) the pleadings from the appeal of this Court's attorneys' fees award (Doc. No. 175). The Court finds the matter is now fully briefed and amenable for disposition without oral argument pursuant to Local Civil Rule 7.1(d).


Legal Standard

Attorneys' fees are calculated using the "lodestar" formula by multiplying (1) the number of hours which would have been reasonably spent on the litigation by (2) a reasonable hourly rate. Fischel v. Equitable Life Assurance Soc'y of U.S., 307 F.3d 997, 1006 (9th Cir. 2002). There is a "strong presumption" that the lodestar fee is a reasonable fee. Id. at 1007. In rare cases this strong presumption may be rebutted through the application of those factors not subsumed in the lodestar calculation. Id.; see also Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir. 1988). "The amount of the fee award is within the discretion of the trial judge." Kessler v. Assocs. Fin. Servs. Co. of Haw., Inc., 639 F.2d 498 (9th Cir. 1981).


1. Statutory Authorization of Fees

The Truth in Lending Act, 15 U.S.C. Section 1640, entitles a plaintiff "in the case of any successful action" to an award of "the costs of the action, together with a reasonable attorney's fee as determined by the court." 15 U.S.C. § 1640(a)(3). The Ninth Circuit has interpreted Section 1640 to provide for an award of fees incurred in successfully opposing the appeal of a Section 1640 fee award. Burnett v. Ala Moana Pawn Shop, 3 F.3d 1261, 1263 (9th Cir. 1993); accord Nigh v. Koons Buick Pontiac GMC, Inc., 478 F.3d 183, 185 (4th Cir. 2007) (holding Section 1640 mandates prevailing party is awarded fees for successful appeal).

In this case, the Court's fee award under Section 1640 was affirmed in its entirety on appeal. Moore, 2007 WL 2316426 at *1-*2. Defendant does not dispute plaintiff's "degree of success in that regard." (Opp. at 1.) Therefore, the Court finds plaintiff is statutorily entitled to a "reasonable attorney's fee." 15 U.S.C. § 1640(a)(3). Plaintiff is also entitled to compensation for time spent preparing the instant motion. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992) ("This Court has repeatedly held that time spent by counsel in establishing the right to a fee award is compensable.").

2. Recovery of Mr. Pearl's Fees

Defendant argues plaintiff is not entitled to recover for the hours worked by Richard Pearl.

Defendant refers the Court to Mr. Pearl's declaration where he states that he is "an expert on attorneys' fee issues" (Opp. at 10), arguing Mr. Pearl was acting as an expert witness, and not as co-counsel.

Plaintiff has presented uncontroverted evidence Mr. Pearl was co-counsel on the appeal and is entitled to attorney's fees. According to Mr. Pearl's time entries, attached as Exhibit B to his declarations, which defendant does not challenge, Mr. Pearl performed legal tasks such as outlining plaintiff's brief, preparing the section of the brief on the standard of review, and researching specific legal issues. (Pearl Decl. Ex. B at 1-2.) Hours worked by special fee counsel are properly considered attorneys' fees. Gates v. Rowland, 39 F.3d 1439, 1449 (9th Cir. 1994) (upholding fee award to regular counsel and special fee counsel for work on fee petition); Davis v. City & County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992) (same). Accordingly, Mr. Pearl's time spent working on the appeal was properly included in the fee request.

3. Reasonableness of the Requested Fee

Plaintiff requests $172, 408.00 in fees incurred in opposing the appeal and in filing the instant motion for fees. (Reply at 9.) These fees are supported by documentation that five lawyers and two paralegals worked a total ...

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