NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 12 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RUDY LEMUS; MANUEL LOPEZ No. 09-17406
ZARATE; ARTURO CARRENO
GARCIA; NORMA URIBE; LINO D.C. No. 2:06-cv-01158-RCJ-PAL
CALDERON MENDOZA,
Plaintiffs - Appellants, MEMORANDUM*
v.
BURNHAM PAINTING & DRYWALL
CORP.; LYLE T. BURNHAM;
CENTENNIAL DRYWALL SYSTEMS,
INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted March 17, 2011
San Francisco, California
Before: WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Rudy Lemus, Manuel Lopez Zarate, Arturo Carreno Garcia, Norma Uribe,
and Lino Calderon Mendoza (Plaintiffs) appeal from the district court’s order
reducing their request for attorney’s fees, statutory costs, and litigation expenses
from $386,071.38 to $121,599.11. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we review the “district court’s decision to award attorney’s fees . . . for
abuse of discretion.” Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059
(9th Cir. 2006). After careful review of the record, we vacate and remand for
further proceedings.
I.
The district court does not commit an abuse of discretion by beginning its
analysis using a party’s lodestar calculations. Although it is not entirely clear, we
assume the district court adopted Plaintiffs’ lodestar figure. If so, the court was not
required to accept Plaintiffs’ calculations without change or otherwise specify an
initial lodestar amount. See McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th
Cir. 2009) (explaining that “[t]ypically a district court begins it[s] calculation of
fees by” determining a lodestar amount) (emphasis added).
The district court did not abuse its discretion when it reduced fees after
finding that Plaintiffs’ counsel engaged in stalling tactics. See Monolith Portland
Midwest Co. v. Kaiser Aluminum & Chem. Corp., 407 F.2d 288, 297 (9th Cir.
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1969) (holding that the amount of a fee award may be affected where one of the
parties increases “the length of the litigation” by engaging in “prolonging tactics”).
The district court’s finding that Plaintiffs’ attorneys stalled the litigation as part of
an effort to unionize the residential construction market in Las Vegas has adequate
support in the record. See McCown, 565 F.3d at 1101 (reviewing factual findings
underlying a district court’s fee award for clear error).
It was not an abuse of discretion to reduce Plaintiffs’ fee award on the basis
of numerous billing discrepancies. See Hemmings v. Tidyman’s Inc., 285 F.3d
1174, 1200 (9th Cir. 2002). By resolving discrepancies between the time billed
and the time actually spent preparing and deposing certain witnesses in favor of the
time spent, the district court simply reduced Plaintiffs’ award by the amount of
time that it deemed “overinflated.” See id. Similarly, the district court did not
abuse its discretion by excluding fees for time spent reviewing the docket and
monitoring filing deadlines. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 288
n.10 (1989) (holding that time billed for “purely clerical or secretarial tasks”
should not be included in an award of attorney’s fees).
We also hold that the district court acted within its discretion when it
decided to reduce fees based on the result obtained. Sorenson v. Mink, 239 F.3d
1140, 1147 (9th Cir. 2001) (holding that a district judge has discretion to reduce a
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fee award based on the “level of success” achieved by the prevailing party).
Plaintiffs initially sought damages of approximately $180,000, but recovered only
$65,000. Hundreds of Burnham employees were identified as eligible claimants,
yet only fifteen ever recovered. These results are not particularly impressive.
The decision to reduce fees for attorney travel time also fell within the
district court’s discretion. Plaintiffs “bear[] the burden of establishing that the fee
sought is reasonable.” See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir.
2009). Nevertheless, Plaintiffs, who were all Nevada residents, present nothing to
explain why it was reasonable to retain a California law firm for this Las Vegas
case. The record is devoid of evidence indicating that Plaintiffs selected the
California firm based on its reputation or its unique skill in handling FLSA cases.
See Chalmers v. City of L.A., 796 F.2d 1205, 1216 n.7 (9th Cir. 1986) (explaining
that travel time is generally compensable when reasonable). We recognize that a
litigant is entitled to retain an attorney of his choice; yet, a district court does not
abuse its discretion by reducing fees for travel time when the litigant fails to show
that his attorney’s travel expenses were reasonable. See id.
II.
We are, however, troubled with the district court’s apparent decision to
reduce fees based on the staffing decisions of Plaintiffs’ attorneys. See Moreno v.
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City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). The district court
reasoned that Plaintiffs “created an excess of fees” by relying primarily on “senior
attorneys for the majority of tasks.” From this statement, it appears that the district
court reduced fees after reasoning that “it would have been cheaper to delegate the
work to other attorneys.” Id. But this assignment of task decisions is usually left
up to the law firm absent evidence of being unreasonable. We therefore vacate and
remand this issue for additional consideration.
We are also unable to determine whether the district court granted Plaintiffs’
request for $22,434.72 in attorney’s fees for the time expended preparing their fee
application. See Hemmings, 285 F.3d at 1200 (explaining that fees incurred in
conjunction with the preparation of a fee application can be reduced when the
district court concludes that such fees were not reasonably incurred). From the
district court’s order, it is unclear whether these fees were included in the total
award, reduced in part, or excluded altogether. We therefore vacate and remand as
is needed to allow for meaningful review of the district court’s treatment of these
fees. See McCown, 565 F.3d at 1102.
Similarly, while the district court had discretion to reduce or exclude
statutory costs and litigation expenses, it did not “specify reasons” for doing so
here. See Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th
5
Cir. 2000). Plaintiffs sought statutory costs in the amount of $24,793.80 and
requested $21,599.11 in eligible litigation expenses, for a total of $46,392.91.
Without any explanation, the district court reduced this amount to $21,599.11. We
therefore must vacate and remand on that issue as well.
Ultimately, we are uncertain how the district court reached a final award of
$100,000 in attorney’s fees and $21,599.11 in litigation costs/expenses. See
Perdue v. Kenny A., 130 S. Ct. 1662, 1676 (2010) (explaining that “[i]t is essential
that the judge provide a reasonably specific explanation for all aspects of a fee
determination,” otherwise “adequate appellate review is not feasible”). While
many of the reductions fall within the district court’s discretion, the district court
must explain how it arrived at the amount of its award – i.e., why the actual
amount selected is reasonable. See Sorenson v. Mink, 239 F.3d 1140, 1146 (9th
Cir. 2001) (requiring a district court to “explain[] the relationship” between the
time “improperly billed and the size of the [fee] reduction”). That is, the district
court must further explain how the problems it found, as described in part I,
affected the award, and what effect the errors or omissions we identified in part II
have upon that award.
Each party shall bear its own costs.
VACATED AND REMANDED.
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