Vatche Agopian v. Federal Express Corporation

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

VATCHE AGOPIAN, CV 20-5282 DSF (Ex)

Plaintiff,

Supplemental Order re

v. Defendant’s Motion for

Attorneys’ Fees (Dkt. 93)

FEDERAL EXPRESS

CORPORATION,

Defendant.

Defendant Federal Express Corporation (FedEx) filed a motion

seeking attorneys’ fees and costs. Dkt. 93 (Mot.). On May 26, 2021, the

Court found an award of fees was appropriate but permitted FedEx to

submit a declaration attesting that records were maintained on a

contemporaneous basis and Agopian to submit a declaration attesting

to his financial status. Dkt. 102. Each party submitted supplemental

filings. See dkts. 103 (Agopian Decl.), 104 (FedEx Suppl. Br.), 105.

Agopian resubmits the same declaration he filed previously,

which includes no information about his financial status. Compare

Agopian Decl. with dkt. 96-1. The Court therefore will not consider

Agopian’s financial status – of which it still has no knowledge – in

determining an appropriate attorneys’ fees award.1

1 The Court knows that Plaintiff was fired from his position at FedEx, but it

does not know whether he has obtained new employment, or whether he has

other substantial assets such as an inheritance or investments. The Court

declines to speculate when he has been given an opportunity to provide

relevant information.

FedEx submits supplemental briefing arguing the Ninth Circuit

does not require contemporaneous records. See FedEx Suppl. Br. The

Ninth Circuit has held that contemporaneous records are not

“absolutely necessary” and fee requests can instead “be based on

reconstructed records developed by reference to litigation files.”

Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (internal

quotation and citation omitted). The Court’s Order re Format of Time

and Expense Record states, with emphasis: “Time records must be

maintained on a contemporaneous basis, and a declaration from counsel

to that effect will be required.” Order re Format of Time and Expense

Records ¶ 4. Regardless, the absence of such records is not a basis for

denying FedEx’s request in its entirety. However, “[w]here the

documentation of hours is inadequate, the district court may reduce the

award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

As it explained in its previous Order, in calculating attorneys’

fees, the Court uses the lodestar method. See Vogel v. Harbor Plaza

Ctr., LLC, 893 F.3d 1152, 1161 (9th Cir. 2018) (holding the district

court abused its discretion by not using the lodestar approach). “The

‘lodestar’ is calculated by multiplying the number of hours the

prevailing party reasonably expended on the litigation by a reasonable

hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.

1996), opinion amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997).

“The party seeking fees bears the burden of documenting the hours

expended in the litigation and must submit evidence supporting those

hours and the rates claimed.” Welch v. Metro. Life Ins. Co., 480 F.3d

942, 945-46 (9th Cir. 2007) (citing Hensley, 461 U.S. at 433). District

courts have broad “discretion in determining the amount of a fee award

. . . in view of [their] superior understanding of the litigation and the

desirability of avoiding frequent appellate review of what essentially

are factual matters.” Hensley, 461 U.S. at 437.

FedEx requests $85,625 in attorneys’ fees for 171.25 hours of

work billed by Craig E. Lindberg at a rate of $500 per hour. Mot. at 7-

8. Lindberg works as in-house counsel for FedEx. Dkt. 94 (Lindberg

Decl.) ¶ 3. In determining a reasonable hourly rate, “the district court

should consider: ‘experience, reputation, and ability of the attorney; the

outcome of the results of the proceedings; the customary fees; and the

novelty or the difficulty of the question presented.’” Hiken v. Dep’t of

Def., 836 F.3d 1037, 1044 (9th Cir. 2016) (quoting Chalmers v. City of

Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986)). District courts may

also “rely[] on their own knowledge of customary rates and their

experience concerning reasonable and proper fees.” Ingram v.

Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

For guidance as to reasonable rates, the Court generally relies on

the 2020 Real Rate Report, a Wolters Kluwer publication, which is

based on actual legal billing, matter information, and paid and

processed invoices from a wide range of companies. The Real Rate

Report is “a much better reflection of true market rates than self-

reported rates.” Hicks v. Toys “R” Us-Del., Inc., No. CV13-1302-DSF

(JCGx), 2014 WL 4670896, at *1 (C.D. Cal. Sept. 2, 2014).

According to the Real Rate Report, the median hourly rate for

employment and labor attorneys working in discrimination, retaliation,

and harassment is $445 for partners and $323 for associates. Real

Rate Report at 13. In Los Angeles, the median rate for an employment

and labor attorney is $610 for partners and $416 for associates. Id. at

74. While Lindberg does not work at a firm, he has more than 30 years

of experience, Lindberg Decl. ¶ 3, making a partner-level rate the more

apt comparison. See State Comp. Ins. Fund v. Khan, No. SACV 12-

01072-CJC (JCG), 2016 WL 6440138, at *6 (C.D. Cal. July 6, 2016)

(“The ‘reasonable hourly rate’ standard ‘applies regardless of whether

the attorneys claiming fees . . . are in-house counsel.’” (quoting Syers

Props. III, Inc. v. Rankin, 226 Cal. App. 4th 691, 698 (2014))).

A survey of case law also suggests that $500 is a reasonable rate

for an employment attorney with Lindberg’s experience. See, e.g.,

Asfall v. L.A. Unified Sch. Dist., No. 18-cv-00505-CBM, 2020 WL

6650783, at *3 (C.D. Cal. Oct. 28, 2020) (finding $950 rate was

reasonable for top employment lawyer with thirty years of experience);

Flores v. City of San Gabriel, No. CV 12-4884 JGB (JCGx), 2019 WL

1771795, at *2 (C.D. Cal. Feb. 22, 2019) (finding $500 rate was

reasonable for attorney specializing in public sector employment law

who had been practicing since 1997); Browne v. Am. Honda Motor Co.,

Inc., No. CV 09-06750 MMM (DTBx), 2010 WL 9499073, at *7 (C.D.

Cal. Oct. 5, 2010) (determining in 2010 that an hourly rate of $545 was

reasonable for attorney who had been practicing in Southern California

for ten years). The Court finds the requested rate of $500 for Lindberg

is reasonable.

Lindberg submits records detailing the 171.25 hours FedEx

requests fees for, broken down by task. Dkt. 94-2 (Lindberg Time

Accounting). The Court finds the hours billed are somewhat excessive,

unnecessary, or not supported by sufficient evidence. See Hensley, 461

U.S. at 434 (district court may exclude any hours that are excessive,

redundant, or otherwise unnecessary). The Court therefore reduces the

hours as follows:

• Lindberg records a total of 12 hours spent on tasks related to

removing this case to federal court. Lindberg Time Accounting at

1, rows 8-24. Removal of this case was routine and based on

diversity jurisdiction. See dkt. 1. There was no motion to

remand. The Court finds removal could have comfortably been

done in 10 hours and deducts two hours.

• Lindberg spent 1.5 hours corresponding with opposing counsel

and researching having an interpreter for Agopian’s deposition.

Lindberg Time Accounting at 2, row 14. The Court finds this is

excessive for such a routine task and reduces the time by 1 hour.

• Lindberg spent 3.25 hours preparing an initial draft of the

declaration of Debra Loveless and an additional .75 hours

revising and finalizing it. Id. at 2, row 26, and 3, row 10. The

brief declaration is straightforward, see dkt. 26, and Lindberg

spent significantly less time on similar declarations he prepared

for FedEx employees, see, e.g., Lindberg Time Accounting at 3,

rows 4 (documenting only .75 hours spent on preparing the initial

draft of Ellwood Garcia’s declaration). The Court therefore

reduces this time by 1.5 hours.

• Lindberg spent 18.5 hours preparing FedEx’s Separate

Statement of Uncontroverted Facts and Conclusions of Law. Id.

at 2, row 25, and 3, rows 13, 16, 18-19. The Court finds this is

excessive and could have been completed in 15 hours. It

therefore reduces the time by 3.5 hours.

• Lindberg bills 2.75 hours for preparing a chart on time spent on

the lawsuit. Id. at 4, row 21, and 5, row 2. Such records should

ideally be kept contemporaneously in part so counsel does not

waste time reconstructing them. The Court deducts this expense

in full.

The Court therefore reduces the number of billable hours from

171.25 to 160.5.

I. CONCLUSION

FedEx is awarded $80,250 in attorneys’ fees.

IT IS SO ORDERED.

Date: June 25, 2021 ___________________________

Dale S. Fischer

United States District Judge