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Ricardo Vega v. Tradesmen International

March 29, 2011

RICARDO VEGA,
PLAINTIFF,
v.
TRADESMEN INTERNATIONAL, INC.,
AMERICAN HOME ASSURANCE, DEFENDANT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER RE: ATTORNEY'S FEES

Plaintiff Vega was awarded disability compensation under § 18(a) of the Longshore and Harbor Workers' Compensation act ("Longshore Act"), 33 U.S.C. § 918(a), by the Department of Labor's Office of Worker's Compensation Programs/Division of Longshore & Harbor Workers' Compensation. Vega and filed a petition in this Court seeking entry of judgment in order to enforce the order. The petition attached a copy of the Department of Labor's order and award.

After the petition was filed, Vega filed a motion notifying the Court that Defendants had complied with the order, but seeking attorney's fees. While it is now unnecessary to grant the request for entry of judgment, Vega is entitled to reasonable attorney's fees for the petition, under § 28(a) of the Longshore Act, 33 U.S.C. § 928(a). Defendants filed an opposition, agreeing that all issues besides attorney's fees had been settled. They do not dispute that Vega is entitled to fees, but argue that the amount sought is excessive.

I. Legal Standards

The Ninth Circuit has determined the use of the lodestar method to calculate attorney's fees under a federal fee-shifting statute is proper. Tahara v. Matson Terminals, Inc., 511 F.3d 950, 955 (9th Cir. 2007). To arrive at the lodestar figure, multiply the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983 ). The result represents a presumptive reasonable fee, and may be adjusted upward or downward "only in " 'rare' and 'exceptional'" cases based on several factors. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). These factors include:

(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) time limitations imposed by the client or the circumstances; (7) the amount involved and the results obtained; (8) the experience, reputation and ability of the attorneys; (9) the "undesirability" of the case; (10) the nature and length of the professional relationship with the client; and (11) awards in similar cases.

Van Gerwen, 214 F.3d at 1045 n.2 (9th Cir. 2000) (citing Hensley, 461 U.S. at 430 n.3). Vega bears the burden of producing evidence to support the number of hours billed and the hourly rates claimed. Id. at 1045.

Attorney's fees are to be calculated according to the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984). The relevant community is generally defined as the form in which the district court sits. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992).

Defendants cite 20 C.F.R. § 702.132(a), which provides in pertinent part: Any person seeking a fee for services performed on behalf of a claimant with respect to claims filed under the Act shall make application therefor to the . . . court . . . before whom the services were performed (See 33 U.S.C. 928(c)). . . .The application shall be supported by a complete statement of the extent and character of the necessary work done, described with particularity as to the professional status (e.g., attorney, paralegal, law clerk, or other person assisting an attorney) of each person performing such work, the normal billing rate for each such person, and the hours devoted by each such person to each category of work. Any fee approved shall be reasonably commensurate with the necessary work done and shall take into account the quality of the representation, the complexity of the legal issues involved, and the amount of benefits awarded . . . .

II. Discussion

Vega requests an award of $2,373.05 for work as follows: 5.0 hours "Work on Petition"; 1.0 hour, "Personally file pet. w. DC, explain to Clerk how petition works[,] talk to John re offer"; .25 hours "Call from Marin re DC matter"; and .5 hours "Prepare Fee Petition." Vega's attorney Jeffrey Winter says his customary hourly fee is $350.00;*fn1 multiplied by the 6.75 hours of work, this is $2,362.50. Vega also requests $10.55 for costs, which Defendants do not contest. Vega's brief refers to exhibits, but none are attached, though Defendants received and responded to them.*fn2

Defendants argue that four of the 6.75 hours are excessive, vague and ambiguous, but have submitted essentially the same objection to all 6.75 hours so it is unclear which 1.75 hours they believe are reasonable. Defendants have not briefed the issue of whether fees are recoverable under the Longshore Act for filing the fee petition itself. They argue that $285.00 is a reasonable hourly rate for the relevant market.

A. Hourly Rate

While Vega's pleadings comply with the minimal requirements of 20 C.F.R. ยง 702.132(a), they don't explain why an hourly rate of $350 is the prevailing one in this District. Vega's cited surveys are not particular to this District, but instead sweep in areas such as Los Angeles and San Francisco where fees are typically higher. Mr. Winter's own rate is a relevant factor, see Carson v. Billings Police Dep't, 470 F.3d 889, 892 (9th Cir. 2006) ("That a lawyer charges a particular hourly rate, and gets it, is evidence bearing ...


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