United States District Court, N.D. California
AMENDMENT TO REPORT AND RECOMMENDATION RE: DKT. NO.
M. Ryu United States Magistrate Judge.
court issues this amendment to its prior Report and
Recommendation (Docket No. 77, “R&R”) on
Plaintiff Eric Dmuchowsky's motion for attorneys'
fees (Docket No. 63, “Mot.”).
March 12, 2018, Dmuchowsky brought this action under the
Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et
seq., against Defendant Sky Chefs, Inc., alleging that
Sky Chefs failed to timely provide employee benefit plan
documents in violation of ERISA. [Docket No. 1 (Compl.).]
Dmuchowsky sought declaratory and monetary relief, including
statutory penalties, interest, and attorneys' fees and
costs. Id. at 4. Sky Chefs produced the documents at
issue between April 17, 2018 and July 13, 2018. [Docket No.
34-1 (A.R.) 12-234.] On January 15, 2019, the parties reached
a settlement agreement as to Dmuchowsky's penalty claim,
but reserved the matter of attorneys' fees and costs for
adjudication. [Docket No. 58.] On February 13, 2019,
Dmuchowsky filed a motion for attorneys' fees and costs.
The Honorable Haywood S. Gilliam referred the motion to the
undersigned for a Report and Recommendation. [Docket No. 66.]
1, 2019, the undersigned issued a Report and Recommendation
that recommended granting Dmuchowsky's motion in part and
awarding $105, 795 in fees and $1, 619.22 in costs for a
total award of $107, 414.22. R&R at 1. This included fees
for 20.5 hours of work performed by attorney Monica Lienke at
a rate of $400 per hour for a total of $8, 200. Id.
at 22. On May 10, 2019, Dmuchowsky filed a notice of errata,
stating that the court erroneously had inferred that Lienke
“joined Kantor & Kantor approximately three years
ago, ” when in fact she joined Kantor & Kantor in
August 2018. Docket No. 78 (“Errata”); see
also R&R at 19. The error originated in the wording
of Lienke's declaration. [Docket No. 63-3 (“Lienke
Decl.”).] Lienke states that she passed the California
Bar Exam in 2014 and then worked for a different firm for two
years. Lienke Decl. at ¶ 5. The next paragraph begins,
“[s]ince joining Kantor & Kantor…, ”
which the court inferred to mean that Lienke had started
working for Kantor & Kantor immediately after leaving her
prior firm. However, Lienke's declaration omitted the
non-obvious fact that after she left her prior firm in
January 2017, she did not join Kantor & Kantor until
August 2018. Errata at 2. Neither the declaration nor the
Errata explain what Lienke did between January 2017 and
15, 2019, Sky Chefs responded to the Errata by filing an
objection to the Report and Recommendation, arguing among
other things that the fee award of $400 per hour for
Lienke's time is inappropriate, given that she is in her
third year of practice and has less than one year of ERISA
experience. [Docket No. 79 (“Obj.”) at 3.] The
undersigned now addresses Sky Chefs' arguments regarding
Lienke's billing rate in order to present a complete
Report and Recommendation for Judge Gilliam's
attorney's “reasonable hourly rate” is
calculated “according to the prevailing market rates in
the relevant community.” Blum v. Stenson, 465
U.S. 886, 895 (1984). “To inform and assist the court
in the exercise of its discretion, the burden is on the fee
applicant to produce satisfactory evidence-in addition to the
attorney's own affidavits-that the requested rates are in
line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill,
experience and reputation.” Id. at 896, n. 11.
Affidavits of the plaintiff's attorney and other
attorneys regarding prevailing fees in the community as well
as rate determinations in other cases can provide evidence of
the prevailing market rate. Welch v. Metropolitan Life
Ins. Co., 480 F.3d 942, 947 (citing United
Steelworkers of America v. Phelps Dodge Corp., 896 F.2d
403, 407 (9th Cir. 1990)). In the absence of opposing
evidence, the proposed rates are presumed reasonable.
Phelps Dodge Corp., 896 F.2d at 407.
is a graduate of Stanford Law School and passed the
California Bar Exam in December 2014. Lienke Decl.
¶¶ 4-5. From January 2015 until January 2017, she
was an associate attorney at Springmeyer Law, “a
boutique San Francisco law firm that provides corporate and
transaction legal services to employees and early-stage
companies in the technology industry.” Id.
¶ 5; Errata at 2. She joined Kantor & Kantor in
August 2018. Errata at 2. In the Errata, Plaintiff once again
passes up the opportunity to exhibit candor and make a clear
representation to the court about Lienke's legal
experience. Instead, the Errata says that “[t]ogether
with her prior time practicing law (January 2015 to January
2017), Ms. Lienke is in her third-year [sic] of
practice.” The court infers that Lienke did not
practice law for a year and a half between the time she left
Springmeyer and joined Kantor & Kantor, and she therefore
has less than three years of experience as a lawyer.
Chefs requests that Lienke's hourly rate be reduced to
$250 per hour and cites several ERISA trust contribution
cases in support of that rate. Courts have generally awarded
lower rates in ERISA trust contribution cases, which are
relatively straightforward and frequently result in default
judgment, thereby often resembling collection matters rather
than contested disputes on the merits. See, e.g.,
Cent. California IBEW/NECA Pension Tr. v. Ozzimo Elec.,
Inc., No. 13-cv-03800-JSW (LB), 2015 WL 1883906, at *4
(N.D. Cal. Apr. 22, 2015) (awarding $195 to $235 per hour for
attorneys on the case); Operating Engineers' Health
& Welfare Tr. Fund for N. California v. Breneman,
Inc., No. 17-cv-05172-EDL, 2018 WL 5099250, at *8 (N.D.
Cal. Aug. 15, 2018), report and recommendation
adopted, No. 17-cv-05172-WHA, 2018 WL 6822624 (N.D. Cal.
Oct. 9, 2018) (approving $235 per hour for a shareholder
attorney and $230 per hour for associates); Boards of
Trustees of Sheet Metal Workers Pension Tr. of N. California
v. Guidi, No. 17-cv-04936-JSW (TSH), 2018 WL 6818658, at
*12 (N.D. Cal. Nov. 29, 2018), report and
recommendation adopted, No. 17-cv-04936-JSW,
2018 WL 6822630 (N.D. Cal. Dec. 19, 2018) (finding that rates
of $220 to $235 per hour “are well within the range of
reasonable fees in an action by an ERISA trust to collect
delinquent contributions”). The current matter was a
litigated dispute that encompassed full briefing and a
hearing on the parties' Rule 52 motions. It is therefore
more appropriate to look to cases that reflect rates for
associate attorneys in ERISA cases that were decided on the
Chefs also cites older cases in this district with lower fee
rates for associate attorneys in ERISA cases. See Caplan
v. CAN Financial Corp., 573 F.Supp.2d 1244, 1249 (N.D.
Cal. 2008) (awarding $330 per hour for a fourth-year
associate and $350 per hour for a sixth-year associate);
Oster v. Standard Ins. Co., 768 F.Supp.2d 1026, 1035
(N.D. Cal. 2011) (awarding $400 per hour for two associates
who had each been practicing law for ten years and had
significant ERISA experience). These orders were issued in
2008 and 2011, respectively, and are not indicative of 2018
ERISA merits cases evidence higher fee rates for associate
attorneys. In Stewart v. Applied Materials, Inc.,
No. 15-cv-2632-JST, 2017 WL 3670711, at *10 (N.D. Cal. Aug.
25, 2017), the court awarded $400 per hour to two associates
with two and three years' experience,
respectively. Another 2017 case awarded $450 per hour
for a five-year associate. Norris v. Mazzola, No.
15-cv-04962-JSC, 2017 WL 6493091, at *12 (N.D. Cal. Dec. 19,
2017). These cases reflect 2017 rates, which arguably would
be higher in 2018.
experience of counsel in a particular practice area, in
addition to their total years of experience, may impact their
reasonable fee rate. Dowdy v. Metro. Life Ins. Co.,
No. 15-cv-03764-JST, 2019 WL 120730, at *5 (N.D. Cal. Jan. 7,
2019) (reducing a requested fee rate for attorneys who were
not experts in ERISA because they “were required to
research basic ERISA issues that would already have been
familiar to a more experienced lawyer”). Given that
Lienke took a substantial break from the practice of law and
had only four months of ERISA experience when she argued the
Rule 52 motion in this case, the court finds that a rate of
$375 per hour accounts for 2018 upward rate adjustments as
well as Lienke's comparative inexperience in ERISA cases.
The court accordingly recommends awarding Lienke a rate of
$375 per hour.
with the undersigned's prior recommendation to award
Lienke 20.5 hours of work, the total fees recommended for
Lienke amount to $7, 687.50. Adding this amount to the
recommended fee award for attorney Brent Brehm in the amount
of $97, 595 and the recommended cost ...