United States District Court, C.D. California
ORDER AWARDING ATTORNEYS' FEES
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
prevailing on their summary judgment motion, Defendants moved
for an award of attorneys' fees. (ECF No. 91.) Finding
that Plaintiff John Busker advanced a frivolous argument in
his Opposition to Defendants' motion for summary
judgment, the Court concluded that Defendants were entitled
to recover their reasonable fees associated solely with
responding to that frivolous argument in their Reply. (ECF
No. 102.) The Court then allowed Defendants to submit
evidence of those fees and Busker to submit an Opposition to
Defendants' calculation. (Id.) Defendants have
now offered evidence of the fees incurred in replying to
Busker's frivolous argument, and Busker has opposed
Defendants' calculation. (ECF Nos. 103; 104.) For the
reasons discussed below, the Court AWARDS some, but not all,
of the fees Defendants request.
DEFENDANTS' CALCULATION OF FEES AND BUSKER'S
frivolous argument at issue is a previously-unpled breach of
contract claim. (See Order 4-5.) Busker attempted to
argue such a claim in opposition to Defendants' summary
judgment motion, but since he never pleaded a breach of
contract claim, raising it in opposition to summary judgment
was frivolous. (Id.) The only attorneys' fees
that Defendants are permitted to recover are those incurred
in responding to the breach of contract claim in their Reply.
claim that they incurred $94, 175.50 in attorneys' fees
preparing the Reply and related materials. (Mem. Regarding
Attorneys' Fees 1.) Of that, they request an award of
$18, 835.10, which they argue reflects the amount incurred in
responding to the frivolous argument; alternatively, based on
a different calculation, they request $19, 225.00.
(Id.) In their memorandum regarding attorneys'
fees, Defendants attach the declaration of Patrick Madden,
one of the attorneys of record for Defendants, as well as a
billing schedule listing all of the billing entries relevant
to the Reply brief. (See Madden Decl., ECF No.
103-1; Ex. A, ECF No. 103-2.) The bases for Defendants'
claim that either $18, 835.10 or $19, 225.00 can be
attributed specifically to addressing the unpled breach of
contract claim are twofold. First, Defendants reach the $18,
835.10 figure by estimating that 20% of the fees incurred in
preparing the Reply related to the unpled breach of contract
argument. (Mem. Regarding Attorneys' Fees 1.) The
percentage is based on the fact that the contract argument
took about 17-18% of the briefing space, and it required
“greater review of and citation to deposition
transcripts as well as a broader scope of research [as
compared with other issues addressed in the Reply].”
(Id.) Next, the $19, 225.00 amount is based on
hour-by-hour estimates of time spent specifically addressing
the unpled breach of contract argument. (Id. at
4-6.) Defendants suggest that either figure would represent
an appropriate compensation for time spent addressing the
frivolous argument. (See generally id.)
Busker opposes the amount of fees that Defendants request.
Busker points out that based on Defendants' prior
estimate of $350, 000 total attorneys' fees incurred in
the action, Defendants' present request would mean that
the Reply brief counted for more than a quarter of the fees
incurred in the entire litigation. (Opp'n 1.) In
addition, Busker questions whether it is possible that
responding to what he calls his “half-page
argument” on the breach of contract claim could
reasonably account for 20% of the total work in drafting the
Reply. (Id.) Further, Busker generally asserts that
the billing entries provided are vague and at times
irrelevant. (Id. at 2-4.)
proposes that rather than awarding the full amount Defendants
request, the Court instead award only two hours of an
associate's time and a half-hour of a partner's time,
which Busker argues is “reasonable” for an amount
of time spent addressing one issue within a brief.
(Id. at 2.)
amount of attorneys' fees awarded is within the
discretion of the trial court. Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 69 (9th Cir. 1975). The Ninth
Circuit has set forth several factors for district courts to
consider in assessing the reasonableness of fees: “(1)
the time and labor required, (2) the novelty and difficulty
of the questions involved, (3) the skill requisite to perform
the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5)
the customary fee, (6) whether the fee is fixed or
contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results
obtained, (9) the experience, reputation, and ability of the
attorneys, (10) the ‘undesirability' of the case,
(11) the nature and length of the professional relationship
with the client, and (12) awards in similar cases.”
Id. at 70. However, a court need only consider some
of, or the most relevant, Kerr factors. Jordan
v. Multnomah Cnty., 815 F.2d 1258, 1263 n.11 (9th Cir.
Court determines that the balance of the Kerr
factors supports an award substantially smaller than either
amount that Defendants request. Busker is correct in pointing
out the absurdity of Defendants' implicit suggestion that
drafting the Reply brief for one motion constituted a quarter
of the attorneys' fees incurred in the entire litigation,
spanning over a year and resulting in over 100 docket
entries. (See Opp'n 1; see generally
Docket.) It appears that having been denied the majority of
the attorneys' fees they originally sought, Defendants
now attempt to increase their chances of still obtaining a
large award by preposterously padding their billing
statements for the Reply.
Court considers the first Kerr factor, time and
labor required, in assessing Defendants' request.
Defendants would have this Court believe that the time and
labor required in drafting a Reply brief includes spending
almost 200 hours preparing, researching, and drafting, with
six separate attorneys contributing to the twelve page
document. (See Ex. A, ECF No. 103-2.) Finding these
figures ludicrous as a matter of common sense, the Court
turns to the twelfth Kerr factor, awards in similar
cases, to consider the range of awards given for
attorneys' fees incurred in drafting a Reply. Courts in
this district have approved dramatically smaller awards for
work on a Reply brief than what Defendants ask for here.
See, e.g., Magck v. Unum Life Ins. Co. of
Am., 289 F.Supp.2d 1181, 1194 (S.D. Cal. 2003) (finding
eight hours a reasonable amount of billable time spent on a
Reply brief); Fein v. Kesterson, No. CV 10-2048 ABC
(SSx), 2010 WL 4902281, at *4 (C.D. Cal. Nov. 23, 2010)
(approving an award for six hours of work spent drafting a
Reply brief); Nance v. May Trucking Co., No.
3:12-cv-01655-HZ, 2014 WL 6633111, at *6 (D. Or. Nov. 21,
2014) (awarding 14.9 hours of attorneys' fees for work on
a Reply brief, with 12.9 of those hours subject to a 25%
reduction due to vagueness in the billing descriptions);
Uhl v. Colvin, No. 1:13-cv-01303-SMS, 2016 WL
3361800, at *6 (E.D. Cal. June 16, 2016) (determining that
four hours spent drafting a Reply brief, resulting in fees of
$761.12, was reasonable); Winters v. Jordan, No.
2:09-cv-00522 JAM KJN PS, 2011 WL 1549391, at *8 (E.D. Cal.
Apr. 21, 2011) (deciding that $675 for work on a Reply brief
constituted a reasonable award).
on this range of cases, the Court conservatively determines
that fifteen hours' worth of work on Defendants'
Reply brief is reasonable, with ten hours billed at the
middle-range rate of $495 reflected on the list of billing
entries and five hours at $600, lead counsel Patrick
Madden's rate. This award is slightly larger than that
granted in any case cited in this Order, the reason being
that this Reply was in support of a case-dispositive motion
for summary judgment. The Court's calculation results in
a total of $7, 950 incurred in working on the Reply brief.
The Court does not disagree with the reasonableness of
Defendants' listed billing rates, nor the estimation that
20% of the work on the ...