Martin Vogel v. Harbor Plaza Center, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARTIN VOGEL, No. 16-55229
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-04609-SJO-SH

HARBOR PLAZA CENTER,
LLC, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Submitted October 2, 2017*
Pasadena, California

Filed June 25, 2018

Before: Andrew J. Kleinfeld, Susan P. Graber,
and Morgan Christen, Circuit Judges.

Opinion by Judge Graber;
Concurrence by Judge Christen;
Dissent by Judge Kleinfeld

*
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
2 VOGEL V. HARBOR PLAZA CENTER

SUMMARY**

Attorneys’ Fees

The panel vacated the district court’s award, pursuant to
a local rule, of attorneys’ fees to the plaintiff following the
entry of a default judgment in an action brought under the
Americans with Disabilities Act.

The panel held that the plaintiff was entitled to a
reasonable attorney’s fee under 42 U.S.C. § 12205 because he
was the prevailing party on his ADA claim. The district court
declined to apply the lodestar approach. Instead, it
interpreted the schedule of fees described in the Central
District’s Local Rule 55-3 as prescribing a presumptively
correct award of fees. The panel read the local rule to require
a different procedure. The panel concluded that when a party
seeks a fee in excess of the schedule and timely files a written
request to have the fee fixed by the court, then the court must
hear the request and award a “reasonable” fee. The court
must calculate a “reasonable” fee in the usual manner,
without using the fee schedule as a starting point. The panel
remanded the case to the district court for reconsideration.

Concurring, Judge Christen wrote that she joined the
court’s opinion, which was consistent with the Supreme
Court’s longstanding rule that fees are awarded to prevailing
parties in civil rights cases, including ADA cases, according
to the lodestar method. She wrote separately to clarify that,
in her view, the correct method for calculating fees in an

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 VOGEL V. HARBOR PLAZA CENTER 3

ADA lawsuit ending in default judgment in the Central
District of California should not hinge on whether a
prevailing party opts out of the local fee schedule.

Dissenting, Judge Kleinfeld wrote that the district court
properly used the local rule’s fee schedule for default
judgments, rather than the lodestar, as the starting point and
acted within its discretion to reject an increase.

COUNSEL

Scottlynn J. Hubbard, Disabled Advocacy Group APLC,
Chico, California, for Plaintiff-Appellant.

No appearance for Defendant-Appellee.
4 VOGEL V. HARBOR PLAZA CENTER

OPINION

GRABER, Circuit Judge:

In this action brought under the Americans with
Disabilities Act of 1990 (“ADA”), Plaintiff Martin Vogel
timely appeals the district court’s award of $600 in attorney’s
fees following the entry of a default judgment. Defendant
Harbor Plaza Center, LLC, originally filed an answer and
took other actions but, before trial, failed to appear. The
district court eventually struck the answer, entered a default
judgment against Defendant, and awarded fees pursuant to a
local rule. By eschewing the ordinary considerations that
apply when calculating fees in ADA cases, the district court
abused its discretion. Accordingly, we vacate the award of
fees and remand for reconsideration.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Martin Vogel is a paraplegic who uses a
wheelchair when traveling in public. He visited the Harbor
Plaza Shopping Center and, in the parking lot, encountered
barriers that prevented him from fully enjoying the shopping
center.

In June 2014, Plaintiff filed this action against the
shopping center’s owner, Defendant Harbor Plaza Center,
LLC. He alleged violations of state law and the ADA, and he
sought declaratory and injunctive relief, statutory damages,
and attorney’s fees. In July 2014, Defendant, represented by
counsel, filed an answer to the complaint. The court
scheduled trial for October 2015. In September 2014,
Defendant filed a request to substitute counsel, which the
court approved. The request was signed by Defendant’s
 VOGEL V. HARBOR PLAZA CENTER 5

initial lawyer, its new lawyer, and its representative
(Defendant’s vice-president). Defendant and Defendant’s
lawyer thereafter stopped appearing. In the meantime,
Plaintiff dutifully prepared for trial and, pursuant to the
district court’s scheduling order, filed motions in limine, a
witness list, an exhibit list, and a pretrial brief.

At the scheduled pretrial conference, in September 2015,
Defendant and its lawyer failed to appear. Plaintiff expressed
concern that Defendant was unaware of the proceedings. The
court shared that concern and noted that, in 2005,
Defendant’s lawyer had been convicted of a federal
corruption charge. The court continued the pretrial
conference and ordered Plaintiff to provide notice to
Defendant’s lawyer and to Defendant’s representative of the
now-postponed conference. Plaintiff provided notice, but
Defendant and Defendant’s lawyer failed to appear at the
continuation of the pretrial conference. The court struck
Defendant’s answer and ordered that Plaintiff “may proceed
by way of entry of default and then default judgment.”

Plaintiff filed an ex parte application for default, which
the court entered. But Plaintiff remained concerned that
Defendant was unaware of the proceedings. Instead of filing
a motion for default judgment, Plaintiff filed an ex parte
application for the court to reschedule the pretrial conference
and to order Defendant’s representative to appear personally.
The district court denied the application without explanation.
The court later ordered Plaintiff, upon pain of dismissal, to
file a motion for default judgment.

Plaintiff then filed a motion for default judgment, seeking
injunctive relief, statutory damages, attorney’s fees, and
costs. Plaintiff sought $36,671.25 in attorney’s fees. In an
6 VOGEL V. HARBOR PLAZA CENTER

attached declaration, Plaintiff’s lawyer provided the court
with a seven-page itemized list of the work that his firm had
performed.

The district court granted Plaintiff’s motion for default
judgment. The court entered an injunction ordering
Defendant to make specific structural changes to the parking
lot:

(1) install a handicap and van-accessible
parking stall with a width greater than or
equal to 132 inches, with (a) appropriate
signage; (b) a curb cut offering walkway
access to the entrance of Defendant’s
Shopping Center located at 13011–13129
Harbor Boulevard, Garden Grove, CA 92843;
and (c) an adjacent access aisle at least
60 inches wide that is nearly level in all
directions to the parking spaces they serve,
with a slope no steeper than 2.082%; and
(2) ensure that no disabled parking spaces
have slopes or cross-slopes exceeding 2.082%
due to encroaching build-up curb ramps.

The court awarded Plaintiff statutory damages of $4,000, and
it awarded Plaintiff all of his requested costs, $3,590.83.1

On Plaintiff’s request for attorney’s fees, the district court
consulted the Local Rules of Practice in Civil Proceedings
before the United States District Court for the Central District

1
Earlier, the court had awarded sanctions against Defendant in
connection with a failure to appear for mediation. The cost and fee
requests did not duplicate the amounts awarded earlier.
 VOGEL V. HARBOR PLAZA CENTER 7

of California. In particular, Local Rule 55-3, titled “Default
Judgment—Schedule of Attorneys’ Fees,” provides:

When a promissory note, contract or
applicable statute provides for the recovery of
reasonable attorneys’ fees, those fees shall be
calculated according to the following
schedule:

Amount of Judgment Attorneys’ Fees Awards
$0.01–$1,000 30% with a minimum of
$250.00
$1,000.01–$10,000 $300 plus 10% of the amount
over $1,000
$10,000.01–$50,000 $1200 plus 6% of the amount
over $10,000
$50,000.01–$100,000 $3600 plus 4% of the amount
over $50,000
Over $100,000 $5600 plus 2% of the amount
over $100,000

This schedule shall be applied to the
amount of the judgment exclusive of costs.
An attorney claiming a fee in excess of this
schedule may file a written request at the time
of entry of the default judgment to have the
attorney’s fee fixed by the Court. The Court
shall hear the request and render judgment for
such fee as the Court may deem reasonable.
8 VOGEL V. HARBOR PLAZA CENTER

Consulting the local rule’s formula, the district court
calculated fees of $600. The court held that, because it was
awarding Plaintiff the full amount of his requested costs,
“[t]he Court does not believe . . . that further modification of
the Local Rule’s recommended attorneys’ fees award is
necessary here. The Court therefore awards Plaintiff $600 in
attorneys’ fees.”

Plaintiff timely appeals, challenging only the district
court’s calculation of fees. Defendant declined to file a
responding brief, and we granted Plaintiff’s request that we
decide this appeal without oral argument.

STANDARDS OF REVIEW

We review for abuse of discretion a district court’s award
of attorney’s fees under the ADA. Armstrong v. Davis,
318 F.3d 965, 970 (9th Cir. 2003). But we review de novo
questions of law that underlie a court’s fee award. Id. at 971.
Here, the central legal issue underlying the district court’s
award of fees is the proper interpretation of Local Rule 55-3.
Ordinarily we give great deference to a district court’s
interpretation of its own local rules. Bias v. Moynihan,
508 F.3d 1212, 1223 (9th Cir. 2007). That deference rests on
the idea that a court that creates a rule is in the best position
to apply it to the circumstances of particular cases. E.g.,
Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 996
(8th Cir. 1989). But where, as here, the interpretive question
is a purely legal one and the judges of the district court have
been inconsistent in their interpretation of the rule, the
amount of deference that we owe is diminished. See Jackson
v. Beard, 828 F.2d 1077, 1079 (4th Cir. 1987) (suggesting
that an interpretation of a local rule in a particular case should
 VOGEL V. HARBOR PLAZA CENTER 9

be given less deference when the interpretation “is at odds
with that of any other . . . judges of the district”).

DISCUSSION

“The general rule in our legal system is that each party
must pay its own attorney’s fees . . . .” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 550 (2010) (citation omitted). But
many federal statutes protecting civil rights, including the
ADA, 42 U.S.C. § 12205, contain fee-shifting provisions that
allow a “prevailing party” to recover “a reasonable attorney’s
fee.” Perdue, 559 U.S. at 550 & n.3. Despite minor textual
differences, we interpret those provisions uniformly.
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 601–03, 603 n.4 (2001);
City of Burlington v. Dague, 505 U.S. 557, 562 (1992).

The district court correctly held that Plaintiff is entitled to
a reasonable attorney’s fee under 42 U.S.C. § 12205.
Plaintiff is indisputably a “prevailing party,” because he has
secured an “enforceable judgment[] on the merits.”
Buckhannon, 532 U.S. at 603–04. And we see nothing in the
record that would render an award of fees unjust. See Jankey
v. Poop Deck, 537 F.3d 1122, 1130 (9th Cir. 2008) (“A
prevailing plaintiff under the ADA should ordinarily recover
an attorney’s fee unless special circumstances would render
such an award unjust.” (internal quotation marks omitted)).
The only remaining question is the calculation of a reasonable
fee.

“[A] ‘reasonable’ fee is a fee that is sufficient to induce
a capable attorney to undertake the representation of a
meritorious civil rights case.” Perdue, 559 U.S. at 552.
“[T]he district court must strike a balance between granting
10 VOGEL V. HARBOR PLAZA CENTER

sufficient fees to attract qualified counsel to civil rights cases
and avoiding a windfall to counsel.” Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008) (citations
omitted). “The way to do so is to compensate counsel at the
prevailing rate in the community for similar work; no more,
no less.” Id. “Where a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee.
Normally this will encompass all hours reasonably expended
on the litigation . . . .” Hensley v. Eckerhart, 461 U.S. 424,
435 (1983). These principles apply equally to prevailing
parties who obtain a default judgment in a civil rights action.
See, e.g., Fair Hous. of Marin v. Combs, 285 F.3d 899, 908
(9th Cir. 2002) (applying these principles and, for case-
specific reasons, affirming an award of fees “more than five
times the amount of compensatory and punitive damage
awards combined”).

“The most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Hensley, 461 U.S. at 433. Once the court has
calculated that amount, known as the lodestar, “[t]here remain
other considerations that may lead the district court to adjust
the fee upward or downward, including the important factor
of the ‘results obtained.’” Id. at 434. The “lodestar
approach” has “achieved dominance in the federal courts”
and is “the guiding light of [the Supreme Court’s] fee-shifting
jurisprudence.” Perdue, 559 U.S. at 551 (internal quotation
marks omitted). Ultimately, the district court has discretion
in determining a reasonable fee, but the court must exercise
that discretion consistently with the principles described
above. Perdue, 559 U.S. at 552–53, 558; Hensley, 461 U.S.
at 433–37.
 VOGEL V. HARBOR PLAZA CENTER 11

Here, the district court declined to apply the lodestar
approach. Instead, the court looked to the schedule of fees
described in the Central District’s Local Rule 55-3. The local
rule’s schedule of fees provides a default calculation of fees
amounting to a small percentage of the monetary component
of a default judgment. Applying the schedule, the court
calculated fees of $600. Local Rule 55-3 also provides that,
upon timely written request, the district court “shall hear the
request and render judgment for such fee as the Court may
deem reasonable.” In response to Plaintiff’s detailed written
request, the district court concluded that no “modification” of
the $600 calculation was warranted. In effect, the court
interpreted the rule as prescribing a presumptively correct
award of fees in cases in which prevailing parties claim fees
in excess of the scheduled amount.2

We read the local rule to require a different procedure. If
a party seeks a fee “in excess of” the schedule and timely files
a written request to have the fee fixed by the court, then the
court must hear the request and award a “reasonable” fee.
That process does not describe a “modification” of the
schedule of fees. Rather, it prescribes an alternative process
when a party invokes it in the proper way at the proper time.

2
Several judges in the Central District have interpreted the rule in the
same manner. Indeed, some judges have ruled that “[o]nly ‘an unusual
case warrants deviation from the attorneys’ fees schedule set forth in the
Local Rules.’” Constr. Laborers Tr. Funds for S. Cal. Admin. Co. v.
Tennyson Elec., Inc., No. 2:16-cv-04908-ODW(GJSx), 2016 WL
6602571, at *4 (C.D. Cal. Nov. 8, 2016) (alteration omitted) (quoting
BWP Media USA, Inc. v. P3R, LLC, No. 2:13-cv-05315 SVW, 2014 WL
3191160, at *5 (C.D. Cal. July 3, 2014)). Other judges, on the other hand,
have interpreted the rule as we do. See Powell v. Blackrock Asset Mgmt.,
LLC, No. 11-0517-JST (RNBx), 2011 WL 4551450, at *5 (C.D. Cal. Sept.
30, 2011) (using the lodestar method in a default judgment case).
12 VOGEL V. HARBOR PLAZA CENTER

When a party invokes that process, the court is obliged to
calculate a “reasonable” fee in the usual manner, without
using the fee schedule as a starting point.3

Our reasons for reading the local rule in this manner are
straightforward. First, the text of the rule provides that, when
a lawyer claims a fee in excess of the scheduled amount, the
lawyer is asking “to have the attorney’s fee fixed by the
Court. The Court shall hear the request and render judgment
for such fee as the Court may deem reasonable.” The rule
thus specifies that the district court, not the schedule, will fix
the fee when a lawyer seeks more than the schedule provides
and that the touchstone for the court’s award is
reasonableness. The rule contains no presumption that the
schedule is “reasonable” in this situation.

In addition, in a case in which a statute provides for
attorney’s fees, a “reasonable” fee within the meaning of the
local rule is a fee that is “reasonable” under the relevant
statute—in this case, the ADA. See 28 U.S.C. § 2071(a)
(providing that local rules “shall be consistent with Acts of
Congress”); 42 U.S.C. § 12205 (“In any action . . .
commenced pursuant to this chapter, the court . . . may allow
the prevailing party . . . a reasonable attorney’s fee . . . .”).
Local Rule 55-3 was last amended in 2003, well after the
lodestar method had “achieved dominance” as the principal
method for calculating reasonable attorney’s fees in civil

3
We need not decide whether Local Rule 55-3 is consistent with the
ADA and other civil rights statutes insofar as it authorizes a prescribed
attorney’s fee in cases in which a party does not ask for more than the
scheduled amount. At any rate, it is difficult to see how that issue could
ever be presented properly on appeal—any party in a position to complain
would necessarily have failed to ask for more than the scheduled amount,
thus waiving or forfeiting such a request.
 VOGEL V. HARBOR PLAZA CENTER 13

rights cases. See Gisbrecht v. Barnhart, 535 U.S. 789, 801
(2002) (noting that the lodestar method “achieved
dominance” following three Supreme Court decisions in the
mid-1980s). Given that historical background, we do not
think that the drafters of the local rule intended to deviate
from the well-established lodestar method and set a different
fee amount as presumptively reasonable. Cf. Keene Corp. v.
United States, 508 U.S. 200, 212–13 (1993) (applying the
“presumption that Congress was aware of [existing] judicial
interpretations [of statutory text] and, in effect, adopted
them” when it reenacted that text without change). Instead,
the rule gives lawyers who obtain default judgments and who
are entitled to statutory fees the option of recovering a set
amount without going through the hassle of submitting
records.4

We emphasize that the lodestar amount is calculated by
multiplying “the number of hours reasonably expended on
the litigation by a reasonable hourly rate.” Costa v. Comm’r

4
The dissent characterizes our holding as a “new rule,” but it is
nothing of the sort. For more than 30 years, the lodestar approach has
been used by district courts across the country to calculate reasonable
attorney’s fee awards in cases that result in default judgments. See, e.g.,
Andrade v. Arby’s Rest. Grp., Inc., 225 F. Supp. 3d 1115, 1143–44 (N.D.
Cal. 2016) (applying the lodestar approach to determine reasonable
attorney’s fees in a case in which the defendant failed to defend itself);
Obenauf v. Frontier Fin. Grp., Inc., 785 F. Supp. 2d 1188, 1206–07
(D.N.M. 2011) (same); Thomas v. Nat’l Bus. Assistants, Inc., No. Civ
N82–469, 1984 WL 585309, at *2–3 (D. Conn. Oct. 5, 1984) (same).
More fundamentally, there is nothing about a case that ends in a default
judgment that justifies departing from the lodestar approach. Whether a
case is contested or not, a “reasonable” fee is one that would “induce a
capable attorney to undertake the representation of a meritorious civil
rights case,” and the lodestar approach “yields a fee that is presumptively”
sufficient to achieve that goal. Perdue, 559 U.S. at 552.
14 VOGEL V. HARBOR PLAZA CENTER

of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) (per
curiam) (alteration omitted) (emphases added) (quoting
Hensley, 462 U.S. at 433). In calculating the lodestar, district
courts “have a duty to ensure that claims for attorneys’ fees
are reasonable,” Swedish Hosp. Corp. v. Shalala, 1 F.3d
1261, 1265 (D.C. Cir. 1993) (emphasis added), and a district
court does not discharge that duty simply by taking at face
value the word of the prevailing party’s lawyer for the
number of hours expended on the case, Gates v. Deukmejian,
987 F.2d 1392, 1398–99 (9th Cir. 1993). Rather, a district
court must “ensure that the winning attorneys have exercised
‘billing judgment.’” Case v. Unified Sch. Dist. No. 233, 157
F.3d 1243, 1250 (10th Cir. 1998). In a contested case, a
district court ordinarily can rely on the losing party to aid the
court in its duty by vigorously disputing any seemingly
excessive fee requests. Moreno, 534 F.3d at 1116. In a case
in which a defendant fails to appear or otherwise defend
itself, however, the burden of scrutinizing an attorney’s fee
request—like other burdens—necessarily shifts to the court.
Cf. Tuli v. Republic of Iraq (In re Tuli), 172 F.3d 707, 712
(9th Cir. 1999) (holding that a court “has an affirmative duty”
to assure itself that it has personal jurisdiction over a
defendant before entering a default judgment, even though
personal jurisdiction need not be addressed sua sponte in
contested cases).5

5
Because district courts have a duty to ensure that attorney’s fee
requests are reasonable, we find unpersuasive the dissent’s dire warnings
about the real-world consequences of our decision. Indeed, the cases cited
by the dissent in which district courts have sanctioned or reproached
lawyers for inflating hourly rates or hours billed go only to show that
district courts are well equipped to ferret out unreasonable fee requests.
In a typical default situation, we would expect fee awards to be modest.
 VOGEL V. HARBOR PLAZA CENTER 15

By treating the fee schedule as presumptively reasonable,
rather than using the lodestar approach to calculate a
presumptively reasonable fee, the district court misinterpreted
Local Rule 55-3 and abused its discretion. Furthermore, we
think that the district court’s erroneous methodology may
have affected the fee award—Plaintiff achieved practically all
of the relief that he sought, “excellent results” by any
measure, but the court awarded him a tiny percentage of the
requested fees. See Corder v. Gates, 947 F.2d 374, 378 (9th
Cir. 1991) (applying harmless error analysis in the context of
a challenge to an attorney’s fee award). On this record, we
cannot understand how the award of $600 meets the court’s
obligation to “compensate counsel at the prevailing rate in the
community for similar work; no more, no less.” Moreno,
534 F.3d at 1111. We therefore vacate the award of fees and
remand for reconsideration in a manner consistent with this
opinion. We express no view on the appropriate award of
fees.

Award of fees VACATED and REMANDED for
reconsideration. Costs on appeal awarded to Plaintiff-
Appellant.
16 VOGEL V. HARBOR PLAZA CENTER

CHRISTEN, Circuit Judge, concurring:

I join the court’s opinion, which is consistent with the
Supreme Court’s longstanding rule that fees are awarded to
prevailing parties in civil rights cases—including ADA
cases—according to the lodestar method. See Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 550–53 & n.3 (2010);
Hensley v. Eckerhart, 461 U.S. 424, 433–37 (1983); Jankey
v. Poop Deck, 537 F.3d 1122, 1130–31 (9th Cir. 2008). I
write separately to clarify that, in my view, the correct
method for calculating fees in an ADA lawsuit ending in
default judgment in the Central District of California should
not hinge on whether a prevailing party opts out of the
Central District’s local fee schedule. As the court’s opinion
recognizes, “the district court has discretion in determining a
reasonable fee, but the court must exercise that discretion
consistently with the principles” underlying the lodestar
method. Opinion at 9 (citing Perdue, 559 U.S. at 552–53,
558; Hensley, 461 U.S. at 433–37). By my read, that
limitation on the district court’s discretion leaves no room for
the district court to adhere to its local default judgment fee
schedule in a civil rights case like this one.

The dissent worries that the court’s decision overrides the
district court’s considered judgment about an appropriate fee
award—and takes particular umbrage at the $36,000 fee
request. See Dissent at 29. But the court does not endorse
the amount requested, or any other amount. Instead, it
remands for calculation of a reasonable fee award,
conspicuously expressing “no view on the appropriate award
of fees.”

District courts enjoy considerable latitude regarding
attorney’s fee awards when they start from the right place, but
 VOGEL V. HARBOR PLAZA CENTER 17

in this case the district court did not. The Central District’s
default judgment fee schedule is fundamentally at odds with
the fact that “private enforcement of civil rights legislation
relies on the availability of fee awards.” Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). In civil
rights cases, the fee schedule must yield.

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent.

The majority creates a new rule, that the “lodestar,” that
is, the claimed hours multiplied by the claimed hourly rate,
must be the district court’s starting point for attorneys’ fee
awards in substantially uncontested default judgment cases,
despite local rules to the contrary, in ADA cases and,
apparently, in all civil rights cases. We have found no
decision by our court or by our sister circuits holding that the
lodestar fee is the presumptively reasonable fee in
substantially uncontested default judgment cases. In this
case, the district court applied a local rule that set a
presumptive fee for the default judgment of $600. The appeal
seeks more than $36,000 for work claimed by counsel. The
majority’s new rule means starting with more than $36,000 as
the presumptive fee in this default judgment, where the
defendant filed an answer and did nothing else to oppose the
claim. I think the district court properly used the local rule’s
fee schedule for default judgments as the starting point and
acted within its discretion to reject an increase, so we should
affirm.
18 VOGEL V. HARBOR PLAZA CENTER

The majority’s new rule is not supported by the statute or
existing law. It will likely generate an unreasonable and
oppressive result in this case and in default judgment cases
generally. A lot of little pizza joints, convenience stores,
used book stores, seamstress shops, dry cleaners, and the like,
will likely be put out of business by this new rule. And the
money will not go to wheelchair ramps or toilet stalls
accommodating the disabled. It will go to the lawyers who
bring the cases.

The ADA says that attorneys’ fee awards are
discretionary and must be “reasonable”:

In any action or administrative proceeding
commenced pursuant to this chapter, the court
or agency, in its discretion, may allow the
prevailing party, other than the United States,
a reasonable attorney’s fee, including
litigation expenses, and costs, and the United
States shall be liable for the foregoing the
same as a private individual.1

The statute does not say that “reasonable” means claimed
hours multiplied by claimed rates. We, not Congress, have
said so in the context of contested cases,2 but we have never
said so in the context of substantially uncontested default
judgments.

1
42 U.S.C. § 12205.
2
E.g. Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165,
1176 (9th Cir. 2010) (citing Perdue v. Kenny A., 559 U.S. 542, 550–51
(2010)).
 VOGEL V. HARBOR PLAZA CENTER 19

The controlling law on attorneys’ fees in default
judgments is the fee schedule established by the local rules of
the Central District of California.3 The Federal Rules of Civil
Procedure have the force of law.4 They authorize local rules
not conflicting with the federal rules.5 The Central District
provision was such a rule. Unless declared invalid, the
Central District’s local rule also has the force of law.6

Consistent with federal law, the local rule includes an
escape provision for default judgment cases where the
“reasonable” fee award would be higher than the scheduled
amount:

L.R. 55-3 Default Judgment - Schedule of
Attorneys’ Fees. When a promissory note,
contract or applicable statute provides for the
recovery of reasonable attorneys’ fees, those
fees shall be calculated according to the
following schedule:

3
C.D. Cal. R. 55-3.
4
28 U.S.C. § 2072; Marshall v. Gates, 44. F.3d 722, 724 (9th Cir.
1995) (citing United States v. Hvass, 355 U.S. 570, 575 (1958)).
5
Fed. R. Civ. P. 83.
6
Marshall, 44 F.3d at 724.
20 VOGEL V. HARBOR PLAZA CENTER

Amount of Judgment Attorneys’ Fees Awards
$0.01–$1,000 30% with a minimum of
$250.00
$1,000.01–$10,000 $300 plus 10% of the amount
over $1,000
$10,000.01–$50,000 $1200 plus 6% of the amount
over $10,000
$50,000.01–$100,000 $3600 plus 4% of the amount
over $50,000
Over $100,000 $5600 plus 2% of the amount
over $100,000

This schedule shall be applied to the amount
of the judgment exclusive of costs. An
attorney claiming a fee in excess of this
schedule may file a written request at the time
of entry of the default judgment to have the
attorney’s fee fixed by the Court. The Court
shall hear the request and render judgment
for such fee as the Court may deem
reasonable.7

Because both the ADA and the local rule provide for
“reasonable” fees, they are consistent, not conflicting.

7
C.D. Cal. R. 55-3 (emphasis added).
 VOGEL V. HARBOR PLAZA CENTER 21

The Advisory Committee Note to the 1993 amendment to
Federal Rule of Civil Procedure 54 expressly suggests that
courts adopt fee schedules like the Central District’s:

Subparagraph (D) explicitly authorizes the
court to establish procedures facilitating the
efficient and fair resolution of fee claims. A
local rule, for example, might call for matters
to be presented through affidavits, or might
provide for issuance of proposed findings by
the court, which would be treated as accepted
by the parties unless objected to within a
specified time. A court might also consider
establishing a schedule reflecting customary
fees or factors affecting fees within the
community, as implicitly suggested by Justice
O’Connor in Pennsylvania v. Delaware Valley
Citizens’ Council, 483 U.S. 711, 733 (1987)
(O’Connor, J., concurring) (how particular
markets compensate for contingency). Cf.
Thompson v. Kennickell, 710 F. Supp. 1
(D.D.C. 1989) (use of findings in other cases
to promote consistency). The parties, of
course, should be permitted to show that in
the circumstances of the case such a schedule
should not be applied or that different hourly
rates would be appropriate.8

8
Fed. R. Civ. P. 54(d)(2)(D) advisory committee’s note to 1993
amendment (emphasis added); see Republic of Ecuador v. Mackay,
742 F.3d 860, 865 (9th Cir. 2014) (finding that the advisory committee’s
notes are a particularly reliable indicator of legislative intent and are
entitled to weight).
22 VOGEL V. HARBOR PLAZA CENTER

A report of the Third Circuit Task Force addressing
attorneys’ fee awards recommended the adoption of district-
wide fee schedules, as well as “local rules or orders that
would tend to standardize the practice of court-awarded
attorneys’ fees,” due to the unreasonable disparities otherwise
brought about by lodestar awards.9 A report of the Federal
Courts Study Committee likewise recommended that courts
adopt “reasonable rate schedules . . . for determining
attorneys’ fee awards in cases where such awards are required
or permitted by rule or statute” and “further study . . .
alternatives” “because of the lodestar method’s problems,”
including that it may “unduly burden judges and give lawyers
incentives to run up hours unnecessarily, which can lead to
overcompensation or to later litigation over fee padding.”10

Federal courts use fee schedules in Maryland, Alaska, and
the D.C. Circuit.11 In state courts, vast numbers of default

9
REPORT OF THE THIRD CIRCUIT TASK FORCE, COURT AWARDED
ATTORNEY FEES, 108 F.R.D. 237, 260–61, 271 (1985).
10
REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 25, 104–05
(April 2, 1990).
11
See, e.g., D. Md. R. App’x B (adopting a fee schedule for “cases in
which a prevailing party would be entitled, by applicable law . . . to
reasonable attorneys’ fees based on a set of criteria including hours and
rates”); Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62,
64 (D.C. Cir. 2015) (approving district courts’ reliance on fee schedules
for determining prevailing market rates) (citing Covington v. District of
Columbia, 57 F.3d 1101 (D.C. Cir.) (noting that the D.C. Circuit has
“approved of the district court’s use of the Laffey matrix” and that the
Laffey matrix has “been relied upon, at least in part, by six District of
Columbia district judges”), cert. denied, 516 U.S. 1115 (1996)); Alaska
Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 972–73 (9th Cir.
2013) (noting that federal courts sitting in diversity apply Alaska R. Civ.
 VOGEL V. HARBOR PLAZA CENTER 23

judgments are rendered in bill collection cases. State courts
use fee schedules for default judgments,12 and in some cases
more generally.13 We apply these state court fee rules in
appropriate diversity cases.14 Federal courts have less debt
collection work, but still plenty. Vogel’s counsel
undoubtedly would have been familiar with the use of fee

P. 82, which sets a fee schedule in civil cases, including default
judgments).
12
California, Utah, and Washington courts use presumptive fee
schedules for default judgments. Idaho and New Mexico courts set
presumptive limits on default judgment fee awards. See, e.g., California
Rules of Court, Rule 3.1800(b) (“A court may by local rule establish a
schedule of attorney’s fees to be used by that court in determining the
reasonable amount of attorney’s fees to be allowed in the case of a default
judgment”); California Superior Court Rules in the counties of Alameda
(App’x B), Contra Costa (Rule 2.40), Imperial (Rule 3.8.7), Kern (Rule
3.6), Kings (Add. 1, Rule 401), Los Angeles (Rules 3.207, 3.214),
Monterey (Rule 8.01), Orange (Rule 366), Placer (Rule 20.7), Riverside
(Rule 3190), San Diego (Rule 2.5.10), San Francisco (Rule 6.6(D)(2)(f),
App’x A), Santa Clara (Rule 14, Form CV-5021), and Stanislaus (Rule
3.13); Idaho R. Civ. P. 54(e)(4); New Mexico Second Judicial District
(LR2-202); New Mexico Eleventh Judicial District (LR11-209); Utah R.
Civ. P. 73; Washington County District Court Rules in the counties of
Chelan (Rule 54), King (Rule 54), San Juan (Rule 54), Spokane (Rule
54(d)(1)), Stevens (Rule 54(d)(3)), and Thurston (Rule 54).
13
Alaska courts, some California courts, and some New Mexico
courts use presumptive fee schedules in civil cases generally. See, e.g.,
Alaska R. Civ. P. 82; California Superior Court Rules in the counties of
Amador (Rule 11.10), Los Angeles (Rule 3.214), Mendocino (Rule 19.2),
and Sacramento (Rule 2.14); New Mexico Third Judicial District (LR3-
208).
14
See Alaska Rent-A-Car, 738 F.3d at 973 (citing MRO Commc’ns,
Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999)).
24 VOGEL V. HARBOR PLAZA CENTER

schedules in his home state of California, both in state and
federal courts.15

The majority errs in suggesting that federal district courts,
as a rule, use lodestar to set attorneys’ fees in default
judgment cases. Courts often rely on local fee schedules to
set a presumptive fee or reduce the lodestar calculation, even
in cases where a higher award is sought.16 Indeed, we have

15
See supra nn. 12, 13.
16
E.g. Minx Int’l, Inc. v. Rue 21 Inc., No. 15-cv-05645, 2017 WL
2961546, at *5–6 (C.D. Cal. July 10, 2017); Herrera v. Mitch O’Hara
LLC, 257 F. Supp. 3d 37, 46–47 (D.D.C. 2017); Trujillo v. Singh, No. 16-
cv-01640, 2017 WL 1831941, at *2–3 (E.D. Cal. May 8, 2017); Constr.
Laborers Tr. Funds for S. California Admin. Co. v. Tennyson Elec., Inc.,
No. 16-cv-04908, 2016 WL 6602571, at *4 (C.D. Cal. Nov. 8, 2016);
Alvarez v. Lakeview Recovery Grp., LLC, No. 16-cv-01047, 2016 WL
10968665, at *3–4 (C.D. Cal. Sept. 26, 2016); Calderon Recinos v. JMZ
Constr., LLC, No. 15-cv-00406, 2016 WL 3162820, at *5 (D. Md. June
7, 2016); Michaels v. Nohr, No. 15-cv-06353, 2015 WL 12532177, at *10
(C.D. Cal. Dec. 17, 2015); Mata v. G.O. Contractors Grp., Ltd., No. 14-
cv-03287, 2015 WL 6674650, at *6 (D. Md. Oct. 29, 2015); Crawford v.
Dynamic Recovery Servs., Inc., No. 13-cv-01328, 2014 WL 130458, at *3
(S.D. Cal. Jan. 10, 2014); Eun-A Choi v. Insan Am. Inc., No. 13-cv-05461,
2013 WL 12144999, at *5 (C.D. Cal. Sept. 30, 2013); Embassy of Fed.
Republic of Nigeria v. Ugwuonye, 297 F.R.D. 4, 15 (D.D.C. 2013);
Superior Sales W., Inc. v. Revival Enterprises, Inc., No. 13-cv-00352,
2013 WL 12136966, at *4 (C.D. Cal. June 18, 2013); Thomasville
Furniture Indus., Inc. v. Thomas, No. 10-cv-00130, 2012 WL 1476070,
at *2 (W.D.N.C. Apr. 24, 2012); Bradley v. 9727 Pulaski, Inc., No. 11-cv-
02708, 2012 WL 669048, at *1–2 (D. Md. Feb. 27, 2012); Maryland Elec.
Indus. Health Fund v. K & L Elec., Inc., No. 09-cv-00778, 2010 WL
3056935, at *1–2 (D. Md. Aug. 3, 2010); IO Grp., Inc. v. Jordan, No. 09-
cv-00884, 2010 WL 2231793, at *4–5 (N.D. Cal. June 1, 2010); Monge
v. Portofino Ristorante, 751 F. Supp. 2d 789, 800–01 (D. Md. 2010);
Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1067–68
(N.D. Cal. 2010); United States ex rel. Cericola v. Fed. Nat’l Mortg.
 VOGEL V. HARBOR PLAZA CENTER 25

affirmed the use of the Central District’s fee schedule to set
a reasonable fee in an ADA default judgment case, albeit in
an unpublished decision.17

The concerns noted by the Federal Courts Study
Committee and the Third Circuit Task Force have particular
force in substantially uncontested default judgment cases.
There is a clear distinction between the lodestar cases and
substantially uncontested default judgments. The distinction
makes a difference. In a contested case, the opposing side
can be expected to challenge whatever claimed hours are
unfair. As we noted in Moreno v. City of Sacramento, “it
may be difficult for the district court to identify the precise
spot where a fee request is excessive,” so “the burden of
producing a sufficiently cogent explanation can mostly be
placed on the shoulders of the losing parties, who not only
have the incentive, but also the knowledge of the case to point
out such things as excessive or duplicative billing
practices.”18 But in substantially uncontested default
judgments, where the opposing party has not appeared to
contest the claimed fee, there is no such check against the ills
noted by the Federal Courts Study Committee and the Third
Circuit Task Force. The majority opinion says that district
courts must bear the burden of pouring through the materials
supporting the fee request. But as Moreno suggests, this may
be difficult for district courts lacking the “knowledge of the

Assoc., No. 03-cv-02294, 2010 WL 11509044, at *4, *7 (C.D. Cal. Feb.
19, 2010); Chanel, Inc. v. Doan, No. 05-cv-03464, 2007 WL 781976, at
*6–7 (N.D. Cal. Mar. 13, 2007); Essex v. Randall, No. 03-cv-03276, 2006
WL 83424, at *5 (D. Md. Jan. 11, 2006).
17
Moreno v. La Curacao, 463 F. App’x 669, 671 (9th Cir. 2011).
18
534 F.3d 1106, 1116 (9th Cir. 2008).
26 VOGEL V. HARBOR PLAZA CENTER

case to point out such things as excessive or duplicative
billing practices.”19 Nor is there any good reason to impose
this task on busy judges, whose courts have adopted fee
schedules like those recommended by the Advisory
Committee. Using lodestar as the starting point for fees in
such cases is an invitation to fraud or abuse in the form of
excessive hours, duplicative billing, unjustified work, and
inflated rates. By shifting the focus to lodestar, the majority
replaces a presumptively reasonable fee award with a
calculation based upon uncontested claims for time spent and
hourly rates.

The majority says that the justification for starting with
lodestar is that this is a civil rights case. But differentiating
civil rights cases on default judgment so that plaintiffs’
attorneys can run up large amounts of fees is contrary to how
the Supreme Court has described lodestar. The Supreme
Court has held that in such cases, “reasonable fees . . . are to
be calculated according to the prevailing market rates in the
relevant community.”20 Starting with the local rule’s fee
schedule establishes a presumptive fee that is precisely “the
prevailing market rate[] in the relevant community.” What
other lawyers get in a default judgment case, the market rate,
is typically the scheduled fee.

The majority cites Fair Housing of Marin v. Combs as its
only authority for extending lodestar to substantially
uncontested default judgments, but that race discrimination

19
Id.
20
Blum v. Stenson, 465 U.S. 886, 895 (1984).
 VOGEL V. HARBOR PLAZA CENTER 27

case was heavily litigated.21 The default stemmed from a
sanction based on the defendant’s obdurate refusal to provide
discovery and misrepresentations to the court.22 Fair
Housing v. Combs was more or less the opposite, in terms of
the extent of counsel’s efforts, of the case before us. There
was a defendant on the other side from beginning to end,
litigating vigorously and unfairly.

Unlike Fair Housing v. Combs, Vogel’s case was not
heavily litigated. It was barely litigated at all. After filing an
answer, the defendant engaged in no litigation whatsoever.
The defendant made no misrepresentations to the court, as
had been made in Fair Housing v. Combs. The concerns
raised by the Federal Courts Study Committee and the Third
Circuit Task Force, along with the concerns I have raised
about applying lodestar in default judgment cases, all
materialized in the case before us. Vogel’s attorneys ginned
up a $36,000 claim for doing nothing besides generating
papers to make it look like the parties were doing something.

Vogel’s counsel characterized this as a “year and a half”
of litigation, which is misleading. The details make it clear
that this was a fairly routine default. Vogel’s lawyers, the
Disabled Advocacy Group, filed Vogel’s complaint on June
16, 2014. Albert Robles, Esq., filed an answer on July 30,
2014, with various denials and affirmative defenses. Tafoya

21
285 F.3d 899, 905–06 (9th Cir. 2002).
22
Id.; see Fair Hous. of Marin v. Combs, No. 97-cv-1247, 2000 WL
365029, at *2 (N.D. Cal. Mar. 29, 2000) (detailing the case’s two-year
history of litigation and the court’s entry of terminating sanctions due to
the defendant’s “repeated and egregious abuses of civil discovery, and . . .
failure to heed the [court’s] clear warning”).
28 VOGEL V. HARBOR PLAZA CENTER

& Garcia withdrew as counsel a couple of months later, on
September 18, 2014, after no litigation, substituting Robles as
defense counsel of record. Evidently the defense was initially
farmed out by Tafoya & Garcia to Robles (who filed the
answer in the first place), and then Robles became counsel of
record when Tafoya & Garcia withdrew. Robles never filed
another paper in the case. Nor did Tafoya & Garcia file any
other papers, except to withdraw as counsel. Nor did either
of them do anything else to litigate the case, so far as the
record shows. They never showed up for hearings, never
argued in court, and never filed any papers.

At the scheduled pretrial conference a year after the
substitution of counsel, Robles did not appear. The judge
noted that Robles had not participated in the preparation of
any of the pretrial documents, nor in the pretrial conferences,
nor in anything else. Vogel’s lawyer moved that the answer
be stricken and the defendant defaulted. The judge, after
requiring notice both to Robles and to the defendant, did so.

An easier case for Vogel to win cannot be imagined.
There was no active litigation. Vogel’s counsel filed several
papers labeled “joint” that were not really “joint” at all. The
record shows no participation by anyone from the defense.
The “Joint Rule 26(F) Report” that Vogel’s lawyers filed, for
example, says that “Plaintiff and Defendant” “request” a
procedure, “believe” something, “estimated” something, and
so forth, but it was never signed by the defense. The defense
did not participate in the preparation of this document. There
was no reason to think that the defense requested, estimated,
or believed anything attributed to it by Vogel’s counsel.

The mediation also appears to have stemmed from the
falsely labeled “joint” request and another, declaring that “the
 VOGEL V. HARBOR PLAZA CENTER 29

parties” request mediation, again signed only by Vogel’s
counsel. The defense never participated in the preparation of
this document, either. Though Vogel’s papers made this look
like a lawsuit with two sides participating, it was not. In
Vogel’s attorney’s declaration in support of the entry of
default, he admitted that the defendant and its attorney “did
not participate in the preparation of any pretrial documents.”

Vogel’s lawyers obtained a $2,947.44 sanction award for
hours claimed for the mediation that never occurred. But
after the default, they claimed at least an additional $3,150
relating to that mediation, even though the district court had
already granted all of the mediation fees Vogel’s lawyers
requested in its earlier sanction award. Vogel’s lawyers put
a lot of paper through the printer on pretrial motions, motions
in limine, and other filings, but in fact they had no reason to
think that there would be a trial or any other contest in the
case, and indeed none took place. Oddly, Vogel’s lawyers
even claimed hours spent to “prepare and file [an] answer to
[the] complaint,” even though Vogel was the plaintiff and did
not file an answer.

Vogel’s counsel had engaged in this sort of litigation
conduct before. The Central District has an extensive history
with Vogel and with this law firm, which it doubtless
considered in applying its discretion to the $36,000 claim for
attorneys’ fees. In one ADA case, the court noted that the
firm’s “mischaracterization of [its] hourly rates in case law is
unsettling.”23 The court noted that the firm claimed
“excessive” hours for “unopposed and/or duplicate motions”
that were “nearly identical” to others from the “hundreds, if

23
Vogel v. Dolanotto, LLC, No. 16-cv-02488, 2018 WL 1684303, at
*4 (C.D. Cal. Apr. 5, 2018).
30 VOGEL V. HARBOR PLAZA CENTER

not thousands, of cases” it had filed on Vogel’s behalf, “many
of which have identical legal issues and similar factual
issues.”24 The court noted that the firm copied a court order
“almost word for word,” then claimed that the filing took
“nearly seven hours to draft.”25 In another ADA case, the
court noted that it “is extremely concerned about [the firm]’s
potential misrepresentations with respect to [c]ounsel’s
hourly rates.”26 The court noted that the leader of the firm
“almost double[d] [his] rates in the span of two months,”
which the court concluded was “patently unreasonable” and
a “blatant misrepresentation.”27 The Central District recently
noted that the leader of the firm has been “suspended from
the practice of law” for making “misrepresentations to the
[c]ourt and opposing counsel[.]”28 This was after the firm
“falsely represented to this [c]ourt and [d]efendant, over
many months of litigation, that [Vogel] encountered access
barriers during a prefiling visit to the restaurant that he never
actually made[.]”29 Other district courts have faced similar

24
Id. at *5–6.
25
Id. at *5.
26
Rush v. Denco Enterprises, Inc., No. 11-cv-0030, 2012 WL
3206674, at *4 (C.D. Cal. Aug. 3, 2012).
27
Id.
28
Dolanotto, 2018 WL 1684303 at *3 n.3 (citing Matter of Hubbard,
No. 11-O-14081, 2016 WL 4184002 (Cal. Bar. Ct. Aug. 4, 2016)).
29
Id. at *5 n.5; see also Vogel v. Sym Properties, LLC, No. 15-cv-
09855, 2017 WL 4586348, at *6–8 & n.4 (C.D. Cal. August 4, 2017).
 VOGEL V. HARBOR PLAZA CENTER 31

problems with this same law firm,30 noting in one ADA case,
for example, that the firm billed “one hour [for] drafting the
boilerplate complaint . . . when it was identical, except for the
names of defendants and the establishment, to the thirty
others his client in this case had filed in this district.”31 We
upheld terminating sanctions against Vogel and this same law
firm in another ADA case for falsifying evidence:

The district court, on the basis of evidence
before it, reasonably determined that both
Vogel and his attorney participated in a
pattern of falsification of evidence that
amounted to bad faith. Despite multiple
requests . . . Vogel never produced any
documentation supporting a different pre-
Complaint visit. Nor did Vogel provide a
sworn statement explaining why he described
in such detail the facts of a visit he later
acknowledged did not occur, although he
could have attached such a declaration to his
Errata Sheet, to his amended motion for
summary judgment, or to his opposition to the
motion for sanctions. On this record, the
district court did not abuse its discretion by
issuing terminating sanctions.32

30
See, e.g., White v. GMRI, No. 04-0620, 2006 WL 947768, at *2
(E.D. Cal. April 12, 2006); White v. Sutherland, No. 03-cv-2080, 2005
WL 1366487, at *4–6 (E.D. Cal. May 6, 2005).
31
Sutherland, 2005 WL 1366487, at *6.
32
Vogel v. Tulaphorn, Inc., 637 F. App’x 344, 345 (9th Cir.), cert.
denied, 137 S. Ct. 173 (2016).
32 VOGEL V. HARBOR PLAZA CENTER

We upheld sanctions against the firm’s lead attorney in yet
another ADA case, where he falsified the signature of his
deceased mother in an attempt to secure a favorable
settlement:

Any rational attorney representing a plaintiff
in an ADA access case would know that if his
client died, the defendants would want to
know about it, especially before signing a
settlement agreement that promised
prospective relief. And by sending the
defendant an agreement after his mother’s
death that purported to contain her signature
when it was not in fact her signature, Hubbard
created the impression that she was still alive.
Hubbard provides no coherent innocent
explanation for this conduct, and the most
logical conclusion to be drawn is that he
intended to deceive the defendant. Such
conduct rises to the level of recklessness and
bad faith.33

This kind of history likely and permissibly influences a
district court’s exercise of discretion. Not every law firm
representing litigants deserving of special protections is itself
a knight in shining armor.

Of course, this is an ADA case, and removing barriers to
access for the disabled is a good cause. The statute
encourages private attorneys general accordingly by adopting
the English rule, awarding reasonable attorneys’ fees, in place

33
Hubbard v. Plaza Bonita, LP, 630 Fed. App’x 681, 683 (9th Cir.),
cert. denied, 137 S. Ct. 146 (2016).
 VOGEL V. HARBOR PLAZA CENTER 33

of the usual American rule. But even a good cause can be
abused. Today’s majority decision encourages abuses of this
sort by creating an incentive to puff up the presumptive fee in
default judgment cases. Starting with the local rule’s fee
schedule as the presumptive fee makes sense because the
Supreme Court has said that starting with what other lawyers
get is a good idea, and what other lawyers get in a default
judgment case is typically the scheduled fee. Such a
presumptive fee, subject to adjustment for reasonableness, is
consistent with the ADA, the legal force of local rules, and
the Supreme Court and this court’s precedents. Today’s
decision, by failing to distinguish between substantially
uncontested default judgments and contested cases, doubtless
will generate considerable abuse. There is no good reason to
treat the lodestar amount as the presumptively reasonable fee
in a substantially uncontested default judgment, even though
there is in fully contested litigation. Doing so invites such
abuse.