United States District Court, D. Idaho
SHAWN A. MOORE and DEDE JARDINE,, Plaintiffs,
DEER VALLEY TRUCKING, INC., Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge.
Court has before it Defendant's Motion for Judgment as a
Matter of Law and Alternative Motion for a New Trial (Dkt.
76), Plaintiffs' Motion for Liquidated Damages (Dkt. 67),
and Plaintiffs' Petition for Allowance of Attorney Fees
(Dkt. 71). Soon after the motions became ripe, the case was
automatically stayed because of a bankruptcy filing. The
Ninth Circuit has since “terminated” the stay
“as to movants, Jardine and Moore, for the limited
purpose of allowing the United States District Court for the
District of Idaho to make a final determination of
attorneys' fees and costs. . . .” Dkt. 87-1.
Accordingly, the Court will address only the motion for fees
and costs below.
ask for an award of fees and costs for prevailing on their
claims against DVT. In an FLSA case such as this one, Title
29 § 216(b) provides that “[t]he court in such
action shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable attorney's
fee to be paid by the defendant, and costs of the
action.” 29 U.S.C. § 216(b). The “case law
construing what is a ‘reasonable' fee applies
uniformly” to all federal fee-shifting statutes.
City of Burlington v. Dague, 505 U.S. 557, 562
(1992); see also Anderson v. Director, Office Workers
Compensation Programs, 91 F.3d 1322, 1325 (9th
Cir.1996). In determining a reasonable attorney's fee,
the Court must begin with the “lodestar” figure
which is “the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983);
see also Fischer v. SJB-P.D., Inc., 214 F.3d 1115,
1119 (9th Cir .2000).
is a “strong presumption” that the lodestar is
the reasonable fee. Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 478 U.S. 546, 565
(1986); see also Gates v. Deukmejian, 987 F.2d 1392,
1397 (9th Cir.1992). The Court can only deviate from the
lodestar figure based on factors other than those already
taken into consideration in the lodestar calculation.
Morales v. City of San Rafael, 96 F.3d 359, 363-64
(9th Cir.1996), amended on other grounds, 108 F.3d 981
(1997). That is, factors such as the novelty and complexity
of the issues, the special skill and experience of counsel,
the quality of representation, the results obtained, and the
contingent nature of the fee agreement are to be considered
when determining the lodestar amount rather than when
determining whether deviation from the lodestar amount is
warranted. Id. at 364, n.9.
DVT does not dispute that Plaintiffs are entitled to an award
of attorney fees. It does, however, dispute the amount of
fees and whether certain costs and fees should be included.
DVT suggests that Plaintiffs have not provided evidence that
Plaintiffs' counsel charged prevailing rates. A district
court should calculate the reasonable hourly rate according
to the prevailing market rates in the relevant community,
which is typically the community in which the district court
sits. Schwarz v. Secretary of Health and Human
Services, 73 F.3d 895, 906 (9th Cir.1995). The relevant
community in this case is Southeast Idaho.
affidavit of lead counsel for Plaintiffs, James Holman, is
sufficient to establish the prevailing rate for counsel in
Southeast Idaho. Dkt. 70. Moreover, I have been one of only
two district judges in the District of Idaho for the past 21
years, and I am familiar with the rates charged by lawyers in
the District of Idaho for FLSA cases. The rates listed by
Plaintiffs' counsel are reasonable prevailing rates for
attorneys of Plaintiffs' counsel's experience,
reputation and expertise. Dkt. 70.
DVT asks the Court to reduce the fee award for attorney time
spent dealing with the expert in this case because the expert
had to revise his opinion to address some mistakes, and
because Plaintiffs apparently recovered less than they
initially expected to recover based upon the expert's
revision. If a plaintiff achieves only partial or limited
success, the Court does have discretion to reduce the amount
of the fee award. See Hensley v. Eckerhart,
461 U.S. 424, 435 (1983). However, the Court is not required
to reduce the fee award simply because some mistakes were
made, which resulted in reducing the damages by a few
thousand dollars as happened in this case. The Court will not
exercise its discretion to do that here - the Plaintiffs
ultimately prevailed on their claims even though the damages
were not what they originally hoped to recover. Counsel's
time spent working with the expert is recoverable.
DVT asks the Court to deny Plaintiffs' request for costs
attributed to the expert, postage and photocopies. With
respect to the expert fees, DVT argues that the FLSA does not
allow for an award of expert fees. DVT cites the Tenth
Circuit's decision in Gray v. Phillips Petroleum
Co., 971 F.2d 591 (10th Cir. 1992) for the proposition
that § 216(b) does not provide explicit statutory
authority for the recovery of expert witness fees. Instead,
it provides only for the shifting of a reasonable
attorney's fee and the costs of the action. Gray
references West Virginia Hospitals, Inc. v. Casey,
499 U.S. 83 (1991) for the conclusion that the phrase
“a reasonable attorney's fee” does not
include within its scope expert witness fees. Moreover,
“costs” are defined in 28 U.S.C. § 1920,
which does not include expert witness fees unless the expert
is appointed by the court. 28 U.S.C. § 1920(6).
Ninth Circuit has not addressed this issue, but the Tenth
Circuit's conclusion is an accurate reading of the
statute, Casey, and § 1920. It also appears to
be in line with several other courts which have addressed the
issue. See e.g., Parness v. Piazza Benvenuto Ristorante,
Pizzeria and Market, Inc., 2009 WL 1117362, *2 (S.D.Fla.
2009); Uphoff v. Elegant Bath, Ltd.,176 F.3d 399,
411 (7th Cir. 1999); James v. Fenske, 2013 WL
656821, *2 (D.Colo. 2013); Padurjan v. Aventura Limousine
& Transp. Service, Inc., 441 Fed.Appx 684, 687 (11th
Cir. 2011). The Court agrees with this conclusion, and will
not award ...