# Vatche Agopian v. Federal Express Corporation

> District Court, C.D. California · June 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10041173

## Case

- **Court:** District Court, C.D. California
- **Decided:** June 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10041173

## How later opinions describe it (automated extraction)

- holding the district court abused its discretion by not using the lodestar approach
- holding the district court abused its discretion by not using the lodestar approach

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10041173. Public record. Not legal advice.