FILED
NOT FOR PUBLICATION
MAY 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRICIA MELLAND, No. 15-35146
Plaintiff-Appellant, D.C. No. 3:13-cv-05413-RJB
v.
MEMORANDUM*
CORNERSTONE DENTAL, PC, DBA
Design Dental, a Washington Corporation
and DR. DANIEL LUNDQUIST, and the
marital community comprised thereof,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted May 8, 2017**
Seattle, Washington
Before: BEA and N.R. SMITH, Circuit Judges, and HAYES,*** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Q. Hayes, United States District Judge for the
Southern District of California, sitting by designation.
Tricia Melland appeals the district court’s denial of her Motion for
Attorneys’ Fees and Costs. A district court’s decision awarding attorneys’ fees is
reviewed for an abuse of discretion. Haworth v. Nevada, 56 F.3d 1048, 1051 (9th
Cir. 1995). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cornerstone Dental, doing business as Design Dental, and Daniel Lundquist
do not dispute that Melland, as the prevailing party, was entitled to an award of
attorneys’ fees for her overtime claim brought under the Washington Minimum
Wage Act and Fair Labor Standards Act. See 29 U.S.C. § 216(b); Wash. Rev.
Code § 49.46.090; Delta Air Lines, Inc. v. August, 450 U.S. 346, 363 (1981) (a
plaintiff who accepts an offer of judgment under Federal Rule of Civil Procedure
68 is a prevailing party). Because the claims upon which Melland failed to prevail
were unrelated to her successful claim, “the final fee award may not include time
expended on the unsuccessful claims.” Schwarz v. Sec’y of Health & Human
Servs., 73 F.3d 895, 901 (9th Cir. 1995) (quotation omitted). Melland bears the
burden of segregating her attorneys’ fees between the successful claim and the
unrelated, unsuccessful claims. See McCown v. City of Fontana, 565 F.3d 1097,
1102 (9th Cir. 2009); Schwarz, 73 F.3d at 901-02; Bloor v. Fritz, 180 P.3d 805,
821 (Wash. Ct. App. 2008).
2
The district court did not abuse its discretion when it denied the Motion for
Attorneys’ Fees and Costs because Melland failed properly to segregate the time
spent on the successful claim from the time spent on the unsuccessful claims. See
Loeffelholz v. Citizens for Leaders, 82 P.3d 1199, 1213 (Wash. Ct. App. 2004) (a
failure properly to segregate attorneys’ fees may result in a denial of an award of
attorneys’ fees). Melland’s methodology of reducing the time by 50% for time
spent on general matters, briefing, correspondence, research, teleconferences, and
miscellaneous work was not based on any ascertainable principle, nor logic.
Melland submitted no documentation to justify this 50% split. Moreover, it is
unlikely that half of the attorney time for these matters was spent on the overtime
claim, considering that the unsuccessful claims were the subject of a four-day jury
trial while the successful claim was settled by acceptance of an offer of judgment
made five days earlier.
Melland seeks attorneys’ fees for work performed on this appeal. Because
the district court did not abuse its discretion in denying Melland’s Motion for
Attorneys’ Fees and Costs, Melland is not entitled to fees for work performed on
this appeal.
AFFIRMED.
3