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Busker v. Wabtec Corp.

United States District Court, C.D. California

April 5, 2017

JOHN BUSKER, Plaintiff,
WABTEC CORPORATION; MICHAEL MARTIN; and DOES 1 through 100, Defendants.




         After 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.


         The 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. (Id.)

         Defendants 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.)

         Unsurprisingly, 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.)

         Busker 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.)


         The 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. 1987).


         The 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.

         The 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).

         Based 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 ...

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