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Elaine andrews, et al v. Lawrence Livermore National Security


January 18, 2012


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


Previously the Court granted Plaintiffs' motion to remand and their request for costs and attorneys' fees pursuant to 28 U.S.C. 13 § 1447(c). Docket No. 33. However, the Court deferred ruling on 14 the amount of costs and fees awarded, pending the submission of 15 further briefing and documentation. Having considered all of the 16 parties' submissions, the Court awards Plaintiffs $39,624 in fees. 17 18


Title 28 U.S.C. § 1447(c) provides that, on granting a motion 20 to remand, the court may order the defendant to pay the plaintiff 21 its "just costs and any actual expenses, including attorney fees, 22 incurred as a result of the removal." In this circuit, courts 23 calculate an award of attorneys' fees using the lodestar method, 24 whereby the court multiplies "the number of hours the prevailing 25 party reasonably expended on the litigation by a reasonable hourly 26 27 rate." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th 28 Cir. 2008). The party seeking an award of attorneys' fees bears the burden of producing "satisfactory evidence--in addition to the 2 attorney's own affidavits--that the requested rates are in line 3 with those prevailing in the community for similar services by 4 lawyers of reasonably comparable skill, experience and 5 reputation." Id. at 980. Attorneys' fees must be awarded "in 6 line with the prevailing market rate of the relevant community."

Carson v. Billings Police Dep't., 470 F.3d 889, 891 (9th Cir. 2006). Generally, "the relevant community is the forum in which 10 the district court sits." Camacho, 523 F.3d at 979.

Reasonable hours expended on a case are hours that are not "'excessive, redundant, or otherwise unnecessary.'" McCown v. 13 City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting 14 Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Although the 15 lodestar amount is presumptively reasonable, courts may adjust the 16 17 lodestar amount considering the time and labor required, the 18 novelty and difficulty of the questions involved, the skill 19 requisite to perform the legal service properly, whether the fee 20 is fixed or contingent, the amount involved, the results obtained, 21 counsel's experience, reputation, and ability, and awards in 22 similar cases. See Ballen v. City of Redmond, 466 F.3d 736, 746 23 (9th Cir. 2006) (internal citations and quotations omitted). 24 25

United States District Court For the Northern District of California

In their initial request for fees and costs, Plaintiffs sought $52,207.50. The Court found lacking Plaintiffs' 27 documentation in support of the hourly rate for two of their 28 attorneys. It also appeared that the number of hours of service indicated in the request was excessive in light of Plaintiffs' 2 fifteen page motion to remand and fourteen page reply brief. The 3 Court ordered Plaintiffs to submit supplemental briefing, 4 contemporaneous billing records and an explanation of the number 5 of hours of service required to complete their motion to remand. 6 In their supplemental briefing, Plaintiffs request $76,419.00 in attorneys' fees and costs. To support their amended request, Plaintiffs submitted declarations by the three attorneys 10 assigned to the motion--J. Gary Gwilliam, a senior, founding partner at Gwilliam, Ivary, Chiosso, Cavalli & Brewer, P.C., the 12 firm representing Plaintiffs, Robert E. Strauss, also a partner in the firm, and Robert J. Schwartz, a contract attorney, whose 14 services were utilized by the firm.

are reasonable.

20 years, requests an hourly rate of $750. This rate for Gwilliam 21 has been approved in prior litigation and is consistent with the 22 prevailing market rate in this district for similarly experienced 23 and skilled attorneys. See, e.g., Canal v. Dann, 2011 WL 3903166, 24

A. Reasonable Rates

The hourly rates requested by Plaintiffs for their attorneys

Gwilliam, who has practiced civil litigation for over thirty

*2-4 (N.D. Cal.) (approving a $700 hourly rate for a similarly experienced attorney, and noting evidence of a $785 hourly rate 27 charged by a senior partner at a plaintiffs' firm who has earned 28 numerous accolades and has practiced law since 1983).

2 representing plaintiffs and handling employment related matters, 3 seeks an hourly rate of $585. He has obtained favorable 4 resolutions on behalf of numerous plaintiffs. In 2009, in a 5 different case, Strauss was awarded fees at a rate of $525, which 6 was not contested by the defendants, who were then represented by 7 8 the same firm presently representing Defendants in this action.

Strauss, who has over seventeen years of experience

Strauss' rate appears reasonable based on the rate billed by an 10 associate, with seven years less experience than Strauss, who works at the firm representing Defendants, and based on the rate approved for similarly experienced and skilled attorneys in other 13 litigation pursued in this district. See id. 14

admitted to the California Bar in 2007. He has worked as a 16 17 contract attorney with the firm of record in this action since 18

September 2009. During that time, he has worked almost 19 exclusively on the present case at all phases of the litigation. 20

Schwartz has extensive knowledge of the voluminous documents in 21 this case, has meet with Plaintiffs on numerous occasions and has 22 participated in several depositions. Schwartz has also 23 participated in a state court trial. 24 25

Schwartz requests an hourly rate of $300. Schwartz was Defendants argue that a reasonable rate for Schwartz is $75 to $150 per hour. The contract rates submitted in connection with 27 Katina B. Miner's declaration, however, provide no indication that 28 such rates would be charged by an attorney with experience and skills similar to Schwartz's. The gist of Defendants' objection 2 is that Schwartz is a contract attorney. However, Defendants 3 provide no authority for the proposition that, for purposes of 4 determining reasonable hourly rates, an attorney's status as a 5 contract attorney, as opposed to his or her employment as an 6 associate, is a proper substitute for evaluating an attorney's 7 8 actual experience or skills.

Plaintiffs have submitted evidence that a managing associate 10 at the firm retained by Defendants, with employment law experience, who graduated in 2006, billed at an hourly rate of $480 in 2010 and 2011. Likewise, an associate with the same firm, who also specialized in employment litigation, graduated in 2009 14 and clerked prior to beginning practice with the firm, billed an 15 hourly rate of $380 in 2011. By comparison, Schwartz's rate of 16 17 $300 appears reasonable.

B. Reasonable Hours

The amount of hours sought by Gwilliam and Strauss are 20 excessive. Gwilliam's declaration indicates that he worked 21 thirty-three hours on the motion to remand between August 10, 2011 22 and August 26, 2011. He worked an additional eight hours to 23 prepare Plaintiffs' supplemental three page brief, to review three 24 25 drafts of his eight page declaration, as well as Strauss' and Schwartz's declarations.*fn1 Strauss requests fees for fifty-two 2 hours of work incurred as a result of the motion to remand. 3

Finally, Schwartz requests fees for 58.33 hours of service. 4

5 of efforts by the three attorneys and a disregard for the 6 reasonable delegation of work to attorneys based on their 7 8 experience. For example, on August 12, 2011 all three attorneys 9 billed substantial hours to research legal authorities relevant to 10

Defendants' notice of removal. Schwartz billed eight hours, Strauss billed 4.5 hours and Gwilliam billed 2.5 hours. However, the legal authorities at issue in Plaintiffs' opening brief were 13 limited. Given Gwilliam's and Strauss' substantial litigation 14 experience and the research time they billed on August 11, 2011, 15 16 the motion should not have required significant time on their part 17 on August 12, 2011. 18

The records for August 25 and 26, 2011 are also illustrative.

On these days, Plaintiffs' counsel indicate that they worked on 20 their reply in support of their motion for remand. During that 21 time, Gwilliam billed 13.5 hours, Strauss billed 16 hours and 22 Schwartz billed 20.58 hours in connection with preparing the 23 reply.

United States District Court For the Northern District of California

2 posture of the case, the parties' arguments about the grounds for 3 removal and the need for an examination of the parties' 4 communications and disclosures. The motion required consideration 5 of whether Plaintiffs were asserting new claims in state court 6 that fell within federal jurisdiction, such that grounds existed 7 8 under the parties' stipulation to remove the case for a second

The motion to remand required substantial work, given the time. Significant supporting documents were required to provide 10 evidence of the parties' filings, communications and disclosures. 11

In light of the posture of the case--a pending motion for summary 12 adjudication and an imminent trial date--counsel for Plaintiffs 13 would have been relatively familiar with key legal and factual 14 issues in the case, but locating and gathering the necessary 15 information to respond vigorously would have required substantial 16 17 time. 18

Nevertheless, Plaintiffs do not explain specifically why 50.08 hours of attorney time was reasonable to prepare their 20 fourteen page reply. Although there is no indication that the 21 motion entailed the inclusion of boilerplate language, the legal 22 issues presented were straight-forward. The extremely large 23 request for fees suggests an attempt by Plaintiffs to punish 24 25 Defendants for their objectively unreasonable decision to remove the case, when Defendants had already agreed to remand the action 27 once before and actively litigated the case in state court. 28

Indeed, at the time Defendants removed the case to this Court, as noted earlier, a motion for summary adjudication was pending in 2 state court and the parties were preparing for a fast-approaching 3 trial date. 4

Although Schwartz's request for 58.33 hours appears within a

5 range of reasonableness, Plaintiffs' supporting declarations are 6 inadequate to justify the additional hours requested for the 7 8 partners, Gwilliam and Strauss. To better reflect the time necessary to reasonably supervise Schwartz's efforts and prepare 10 the briefing, Gwilliam's time is reduced to ten hours and Strauss' time is reduced to twenty-five hours.

C. Costs

Neither Plaintiffs' original briefing on their request for 14 attorneys' fees, nor their supplemental briefing, point to 15 evidence of the costs incurred as a result of their motion to 16 17 remand. 18


Plaintiffs' request for attorneys' fees in connection with 3 its motion to remand is granted in the amount of $39,624. This 4 award amounts to 58.33 hours for Schwartz's service at the rate of 5 $300 per hour, ten hours for Gwilliam's service at the rate of 6 $750 per hour and twenty-five hours for Strauss' service at the 7 8 rate of $585 per hour.


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