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Saenz Mencia v. Allred

United States District Court, D. Utah, Central Division

October 6, 2017



          Clark Waddoups United States District Judge.

         Before 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.)


         A 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 claim. Id.

         There 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 guidance:

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. Billing Rates

         Setting 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.)

         Mr. 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.)

         Given 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 rates. (Id.)

         Support 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.)

         Defendants 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.)

         The 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.

         Based 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.

         Ms. 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.)

         Mr. 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 unpersuasive.

         In 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. 210.)

         The 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.

         B. Reasonable Hours

         Mr. 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 ...

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