United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER AWARDING ATTORNEY
Waddoups United States District Judge.
the court is the motion of Plaintiff German Wilmer Saenz
Mencia for an award of attorneys' fees and costs pursuant
to 28 U.S.C. § 216(b) and Fed.R.Civ.P. 54(d). (ECF No.
202.) The motion is supported by the Affidavit of Edward
Tuddenham with attached exhibits (ECF No. 202-1), the
Affidavit of Jaqualin Friend Peterson with attached exhibits
(ECF No. 202-3), the Affidavit of Derek Langton (ECT No.
202-3), and for comparison purposes the Affidavit of Judith
D. Wolferts regarding time billed to Defendants between
February 3, 2011 and November 6, 2013. (ECF Nos. 115 &
115-1). The Plaintiff prevailed on both his FLSA and breach
of contract claims, and the Tenth Circuit has already
determined that “[p]ursuant to 29 U.S.C. § 216(b),
Plaintiff is awarded his appeal-related attorneys'
fees” subject to a determination that the amount was
reasonably and necessarily incurred. Mencia v.
Allred, No. 14-4047 (Order of January 21, 2016). The
issue now before the court is the reasonableness of the
amount of attorney fees and costs requested. Defendants
oppose the motion, arguing that the requested amount should
be significantly reduced. (ECF No. 210.) Plaintiff requests
attorneys' fees of $215, 802 and costs and expenses of
$1, 996.09. (ECF No. 202.)
STANDARD FOR DETERMINING APPROPRIATE FEE AWARD
plaintiff who prevails on a claim under the FLSA is entitled
to any judgment awarded in the action plus “a
reasonable attorney's fee to be paid by the defendant,
and the costs of the action.” 29 U.S.C. § 216(b).
See Nesbitt v. FCNH, Inc., 811 F.3d 371, 380 (10th
Cir. 2016) (“[I]t is undisputed that the FLSA . . .
requires a district court to award ‘a reasonable
attorney's fee . . . and costs of the action' to a
successful plaintiff.”) “A request for
attorney's fees should not result in a second major
litigation.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). The district court, however, must determine
whether the fee requested in light of the success achieved is
“reasonable.” Id. at 433, 437. The
beginning point in determining the reasonableness of a
request for attorney fees is the lodestar amount, calculated
by multiplying the hours spent times a reasonable hourly
rate. Id. at 433. The lodestar amount must be
supported by detail supporting the rates claimed and
specifying the dates, tasks accomplished, and the time spent
on the various tasks. Id. The descriptions must be
sufficiently detailed to allow the court to determine that
the task was reasonably related and necessary to pursue the
is a presumption that the lodestar amount is a reasonable
fee, and the court should deviate only in
“‘exceptional' cases.” Id.
(quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 552 (2010)). The court should not “mechanically
adjust the lodestar figure downward based on the amount
involved and the results obtained.” Bywaters v.
United States, 684 F.3d 1295, 1296 (Fed. Cir. 2012)
(citation, quotation marks, and brackets omitted).
Nevertheless, the court is required to carefully evaluate the
reasonableness of the fee requested in light of the success
achieved and the necessity of the time spent. In
Hensley, the Supreme Court gave the following
There is no precise rule or formula for making these
determinations. The district court may attempt to identify
specific hours that should be eliminated, or it may simply
reduce the award to account for the limited success. The
court necessarily has discretion in making this equitable
judgment. This discretion, however, must be exercised in
light of the considerations we have identified.
461 U.S. at 436-37. These considerations include the skill
and experience of the lawyers and whether there has been a
good-faith effort to exclude hours that are excessive,
redundant, or otherwise unnecessary. Id. at 434. The
court should also consider whether the billing attorneys have
exercised “billing judgment.” Id.
“Work on an unsuccessful claim cannot be deemed to have
been expended in pursuit of the ultimate result
achieved.” Id. at 435 (internal quotations
omitted). Id. Nevertheless, a fee should not
mechanically be reduced simply because a plaintiff did not
prevail on “every contention raised in the
lawsuit.” Id. at 434-35. Where plaintiff's
claims involve “a common core of facts” or are
“based on related legal theories” such that
counsel's time cannot be divided on a claim-by-claim
basis, “the district court should focus on the
significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the
litigation.” Id. at 435.
a rate of compensation is within the discretion of the
district court, accomplished by assessing the local market
rates charged by “lawyers of comparable skill and
experience practicing in the area in which the litigation
occurs.” Case v. Unified School Dist. No. 233,
Johnson County, Kan., 157 F.3d 1243, 1256 (10th Cir.
1998). Plaintiff's attorneys fees request is supported by
the affidavits and contemporaneous time and cost records of
attorney Edward Tuddenham and attorney Jaqualin Friend
Peterson and her firm of Peck Peterson LLC. Mr. Tuddenham is
located in New York City and is licensed to practice in New
York, Texas, and the District of Columbia. (Tuddenham Aff. 2,
ECF No. 202-1.) He has thirty eight years of experience with
the laws and regulations governing the Department of
Labor's temporary guestworker programs. He has handled
Fair Labor Standards Act claims and breach of contract
claims, civil claims arising under the federal H-2 temporary
guestworker program, plaintiffs' employment and civil
rights litigation primarily on behalf of low wage workers,
and since 1989, has spent the majority of his time litigating
cases arising under the H-2A and H-2B programs.
(Id.) He has litigated dozens of “damage
actions on behalf of foreign and U.S. workers affected by the
H visa programs, including many cases asserting the FLSA
rights of such workers.” (Id. at 3.) He has
been involved in “numerous Administrative Procedure Act
challenges to federal regulations governing the H-2 visa
programs.” (Id. at 4.) Thirty-two of his FLSA
cases have published decisions and thirty-eight of his H-2,
H-2A and H-2B cases have published decisions. (Id.
at Exs. A, B.) He has “testified before Congress on
guestworker matters, conducted numerous trainings on H-2
related issues, and published several articles regarding the
H-2 program.” (Id. at 5.) Because of the
specialized nature of this work, Mr. Tuddenham
“frequently consult[s] with and co-counsel[s] with
attorneys around the country when guestworker issues
arise.” (Id. at 5-6.)
Tuddenham became involved in this action at the request of
Alex McBean, an attorney with Utah Legal Services who was
considering bringing suit on behalf of Mr. Saenz.
(Id. at 6.) The case involved issues of first
impression in the Tenth Circuit (and elsewhere) regarding the
interplay of the H-2A Sheepherder program and the FLSA
program and the proper application of the FLSA range
production of livestock exemption. In Mr. Tuddenham's
experience, there are very few practitioners familiar with
H-2A matters and experience litigating on behalf of foreign
visa workers. The only other case in Utah to his knowledge
was one that he worked on with Mr. McBean shortly before this
case was filed, an interpleader action filed by an employer,
that settled almost immediately after filing. (Id.)
the scarcity of knowledgeable H-2 litigators and the legal
issues raised by Mr. Saenz's case, the court finds it was
reasonable for Mr. McBean to seek Mr. Tuddenham's
expertise and that his expertise materially contributed to
its ultimately successful outcome. After Mr. McBean withdrew
as counsel for Mr. Saenz upon the court's entry of
summary judgment in defendants' favor, Mr. Tuddenham
agreed to continue to represent Mr. Saenz on appeal with
Jacqualin Peterson as local counsel. (Id. at 7.) Mr.
Tuddenham's normal billing rate in New York City is $625
per hour, which he has been awarded in H-2 matters outside of
New York City based on the recognition that his expertise in
H-2 law is not available in most jurisdictions and is vital
to successful prosecution of foreign visa worker cases.
(Id. at 9.) Here, Mr. Tuddenham seeks fees at a rate
of $450 per hour commensurate with his years of litigation
experience, expertise in the specific area of law at issue
and in appellate work, and compatibility with local billing
for Mr. Tuddenham's requested billing rate is provided by
the Affidavit of Derek Langton. (ECF No. 202-3.) Mr. Langton
is a shareholder locally at the law firm of Parsons Behle
& Latimer. (Id. at 2.) He has been a civil
litigator for thirty-three years and has tried cases in both
federal and state courts including cases involving
employment, contracts, and complex commercial matters, among
other areas. (Id.) He is the past chairperson of the
Labor and Employment Law Section of the Utah State Bar, and
is familiar with the prevailing market rates for attorneys
involved in federal litigation. (Id.) Mr.
Langton's current hourly rate is $420 per hour. The
billing rates of colleagues at his firm with similar years of
experience as Mr. Tuddenham are in the range of $420/hour to
$470/hour depending on their particular practice areas and
other factors. (Id.) He opines that based on Mr.
Tuddenham's years of experience and a review of his
expertise, reputation, and background, Mr. Tuddenham's
request of $450 per hour falls within the general range of
his own rate and those of similarly situated local attorneys.
(Id. at 3-4.)
provide an opposing view in the Affidavit of Stanley J.
Preston. (ECF No. 210-8.) Mr. Preston currently owns the law
firm Preston & Scott, LLC and previously worked for
twenty-seven years at Snow, Christensen & Martineau and
for three years at Latham & Watkins in California.
(Id. at 2.) He has practiced law for thirty-seven
years and has extensive litigation and trial experience in
both state and federal courts involving a wide variety of
claims including employment litigation and complex commercial
litigation. He is also an experienced appellate attorney and
has a number of reported cases. He is familiar with the
prevailing market rates in Utah for attorneys involved in
federal litigation. (Id. at 2-3.) Mr. Preston's
current hourly rate is $350 per hour for complex commercial
business litigation and $300 per hour for “employment
related lawsuits such as Title VII, ADA, ADEA, and FLSA
lawsuits.” (Id. at 3.) He opines that Mr.
Tuddenham's requested hourly rate of $450 is
“significantly higher than the usual range that would
be charged in Utah for this type of case.”
(Id.) His basis for so stating is his
“discussion with Ms. Wolferts, ” as to the issues
raised, the results obtained, and the work required to
resolve the case, from which he concludes that there are no
unique or complex legal issues in this case to warrant a
higher rate, where the “case consists of a basic,
single-plaintiff FLSA claim and a claim for intentional
infliction of emotional distress.” (Id. at
3-4.) Defendants argue that Mr. Tuddenham's hourly rate
should be reduced to $300, if not lower because “the
vast amount of time he spent in performing tasks that could
and should have been assigned to a junior attorney.”
(Def.'s Opp. 10, ECF No. 210.)
court gives no weight to either Mr. Langston's or Mr.
Preston's evaluation of the complexity of this case, as
there is no evidence that either of them independently
reviewed the case or the issues involved. Mr. Langston,
however, reviewed Mr. Tuddenham's qualifications,
expertise, and reputation, while there is no evidence that
Mr. Preston did so. While the court is not persuaded that all
of the legal work involved in this case required Mr.
Tuddenham's extensive expertise in H-2 visa programs for
temporary guestworkers, the critical questions did, and it is
the court's view that overall Mr. Tuddenham's subject
matter, appellate, and litigation experience streamlined
plaintiff's case and was highly influential in Mr.
Saenz's ultimate success.
on the court's own familiarity with the prevailing market
rates for legal work in this community, the reputation and
lengthy legal experience of Mr. Tuddenham, and most
importantly the specialized expertise of Mr. Tuddenham in
litigating and appealing the types of issues raised in this
matter-to which the court finds that defendants give
inadequate weight- the court concludes that $450 is an
appropriate hourly rate for Mr. Tuddenham. Within the local
community, this rate currently falls within the range of the
most experienced and highly qualified attorneys litigating
civil matters in federal court, but it appears that Mr.
Tuddenham's qualifications and experience justify his
rate within that range.
Peterson has twelve years of experience as a civil litigator.
(Peterson Aff. 2, ECF No. 202-2.) She has handled commercial
transactional and litigation matters in both state court and
in federal bankruptcy court as well as transactional,
litigation, corporate, and compliance matters for
telecommunications carriers and users before the Federal
Communications Commission and all 50 state public utility
commissions. (Id.) She has contributed to over fifty
legal encyclopedias, texts and treatises on topics including
labor and employment law, litigation and federal courts,
among other areas. (Id. at 2-3.) She has been
exclusively practicing plaintiff's employment and civil
rights law at her current law firm since 2010. (Id.
at 3.) Much of her practice has involved “less common
employment issues in the areas of discrimination and
retaliation, and denial of other civil rights, ” and
she frequently acts as co-counsel to both local and national
firms in plaintiff employment litigation cases and trial work
in both state and federal courts to assist other attorneys
with matters falling within her litigation experience,
including appellate work in state and federal courts.
(Id. at 3-4.) She has previously served as the Chair
of the Labor and Employment Section of the Utah Bar and the
Vice President of the Utah Employment Lawyer's
Association.” (Id. at 4.)
McBean asked Ms. Peterson to take over as local counsel when
he determined that, as an attorney with Utah Legal Services,
he would have to withdraw and refer appellate matters to
outside counsel. (Id.) She agreed to take over the
matter “despite my limited experience with FLSA/minimum
wage cases in large part because Mr. Tuddenham was willing to
continue to remain actively involved in the case and provide
his extensive experience as an expert litigating cases
arising under the FLSA and H-2A temporary guestworker
programs on behalf of foreign visa workers.”
(Id. at 4-5.) Given her Utah employment litigation
experience, she believed she would be effective local counsel
to address matters arising on remand, including trial,
provided she had the assistance of Mr. Tuddenham's
subject matter expertise. (Id. at 5.) Ms. Peterson
seeks fees at a rate of $250 per hour commensurate with her
years of experience, expertise in employment litigation, and
local billing rates. (Id. at 7.) Defendants assert
that Ms. Peterson's rate should be reduced to $225
because of the length she has been practicing and the fact
that Mr. Tuddenham “mentored” her. (Def.'s
Opp. 10, ECF No. 210.) The court finds this argument
addition, two attorneys at Ms. Peterson's firm also
billed time in this matter. Elizabeth Peck has been
practicing employment law for twenty five years and is the
founding partner of Peck Peterson. She has practiced in both
state and federal court, in Utah and California, in
litigation and appellate matters. She similarly practices in
“less common employment issues in the areas of
discrimination and retaliation, and denial of other civil
rights, ” and bills at an hourly rate of $300.
(Peterson Aff. 8, ECF No. 202-2.) She billed 4.4 hours in
this matter. Defendants assert that her rate should be no
more than $225 per hour “because she did nothing
substantive at all.” (Def.'s Opp. 10, ECF No. 210.)
Mr. Alex G. Peterson graduated from law school in 1992 and
had twenty one years of experience as a Judge Advocate
General in a number of capacities, including as trial
counsel. He then obtained a Masters of Law. He bills at a
rate of $220 per hour and is the only Spanish speaking
attorney at Peck Peterson. (Peterson Aff. 8, ECF No. 202-2.)
He billed 6.1 hours in this matter. Defendants assert that
his billing rate should be no more than $75 per hour
“since all he did was act as an
interpreter/translator.” (Def.'s Opp. 10, ECF No.
court is not persuaded by defendants' objections to the
hourly rates of Ms. Peterson and the attorneys in her firm.
The rates requested are consistent with prevailing market
rates for attorneys of similar skill and experience in the
local community. Defendants offer no evidence otherwise, and
their objections to Ms. Peck and Mr. Peterson's rates are
based on the nature of the work performed, rather than on the
skill and experience of the attorneys themselves. The court
concludes that Ms. Peterson's rate of $250 per hour, Ms.
Peck's rate of $300 per hour, and Mr. Peterson's rate
of $220 per hour are appropriate rates of compensation.
Tuddenham seeks reimbursement for 340.7 hours, while attorney
Peterson and her firm seek compensation for 249.8 hours.
(Pl.'s Brief 2, ECF No. 202.) The time spent on
plaintiff's FLSA and breach of contract claims have not
been segregated because the breach of contract claim is so
closely intertwined with the FLSA claim that doing so would
not be feasible. The claims both depended on the same common
core of facts, i.e. what work Mr. Saenz performed, where he
performed it, and the time expended in each of his tasks. The
legal question raised by the two claims as to whether Mr.
Saenz was a sheepherder or a ranch hand overlapped, and the
primary difference between the claims was the hourly wage
rate mandated by the FLSA versus the contract claim once the
Tenth Circuit concluded that Mr. Saenz was an ...