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Dunn v. Hatch

United States District Court, D. Idaho

May 23, 2018

ELI DUNN and COLIN ALLEN, Plaintiffs,
v.
BRYCE HATCH and HATCH MARINE ENTERPRISE, LLC, in personam; the F/V SILVER BULLET, Official No. 991159, her engines, machinery, appurtenances and cargo, in rem; Defendants

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge

         INTRODUCTION

         The Court has before it plaintiff Dunn's request for attorney fees as a sanction for the conduct of defendant Hatch. For the reasons expressed below, the Court will award $5, 025.25 in fees for Hatch's forgery of the employment contract, and an additional $5, 000 in fees for Hatch's failure to reveal in discovery the payment adjustment figure. The Court will explain these conclusions after reviewing the background of this litigation.

         LITIGATION BACKGROUND

         Plaintiff Dunn brought this lawsuit to recover wages due him from shipowner Hatch for the 2013 salmon season in Bristol Bay, Alaska. In a prior decision, the Court held that Hatch forged Dunn's signature on an employment contract, intentionally filed it with the Court, represented in at least two court filings that Dunn signed the contract, and procured two additional persons to lie, vouching for the authenticity of Dunn's forged signature. See Memorandum Decision (Dkt. No. 110). The Court held that this willful conduct satisfied the high threshold for finding that Hatch acted in bad faith, and warranted an award of sanctions. That award, the Court held, would consist of the following items: (1) The costs of the handwriting expert Hannah McFarland - that is, her fees for drafting her expert report and attending the deposition; and (2) The time Dunn's attorney spent in preparing for and taking the deposition of McFarland and in otherwise addressing the issue of the contract forgery. Id. at p. 11.

         In that decision, the Court also stated that “[i]f plaintiffs' counsel believes he is entitled to attorney fees generally, he shall file his motion within the same time frame, thirty days. The Court expresses no opinion whether plaintiffs are entitled to costs and attorney fees generally and, if so, whether those fees should be supplemental, or in addition, to the costs and fees awarded as sanctions.” Id.

         Dunn has now responded with two filings. In the first, he details the fees and costs incurred in revealing the forgery. In the second - a motion for attorney fees generally - he seeks all the attorney fees his attorney incurred in this case. The Court will take up first the questions of the fees and costs for the forgery.

         ATTORNEY FEES FOR FORGERY

         Dunn's counsel submits his accounting showing the following: (1) the costs for the handwriting expert were $2, 280.25; and (2) Dunn's counsel spent 6.1 hours on this issue at a rate of $450 an hour. Adding these amounts results in a sum of $5, 025.25. See Declaration of Merriam (Dkt. No. 111).

         Hatch argues that the rate of $450 is too high, and cites lower hourly rates in the Boise Idaho market. But Dunn's counsel practices in a specialized field in Seattle Washington, has done so for the past 36 years, and is a past chairman of the Maritime Section of the Washington State Trial Lawyers Association. The Court finds his hourly rate reasonable.

         Hatch responds by speculating that Dunn had a contingent fee arrangement with his counsel, making it unlikely that Dunn “incurred” any fees. But Hatch cites no authority holding that fees cannot be awarded based on a finding of bad faith conduct in litigation whenever the victim has a contingency fee arrangement. Adopting Hatch's rule would promote bad faith conduct in contingency cases, an absurd result.

         Hatch complains about that the number of hours spent by Dunn's counsel, but the 6.1 hours seems quite conservative given the importance of the issue in the litigation and the burden of proving a signature was forged. The Court cannot find the total hours unreasonable.

         For these reasons, the Court will award $5, 025.25 in attorney fees and costs for Hatch's conduct in forging the employment contract.

         MOTION FOR ...


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