Haskell/Davis Joint Venture et al v. TAKRAF USA, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HASKELL/DAVIS JOINT VENTURE,
Plaintiff,
v.
TAKRAF USA, INC., and NORTH
AMERICAN SPECIALTY INSURANCE
COMPANY,
Defendants.
Case No. 4:20-cv-234-SLG
ORDER ON DEFENDANTS’ MOTION FOR FEES AND COSTS
Before the Court at Docket 67 is Defendants’ Motion for Fees and Costs.
The motion is opposed.1 	Oral argument was not requested and is not deemed
necessary. 	For the reasons described herein, the motion is granted in part and
denied in part.
BACKGROUND
In its orders at Dockets 55 and 64, the Court imposed Rule 37 discovery
sanctions on Plaintiff Haskell/Davis Joint Venture (“HDJV”) for several improper
Rule 26 disclosures relating to HDJV’s expert witness Dave Ganz.2 Relevant here,
the Court: (1) ordered HDJV to “pay Defendants’ reasonable attorney’s fees and
costs incurred in filing their Motion to Exclude Supplemental Expert Disclosures of
1 Docket 68 (Opposition).
2 See also Docket 59 (Minute entry for hearing on appropriate sanctions).
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Dave L. Ganz at Docket 37 and the associated reply”; and (2) allowed Defendants
to conduct a further 2-hour deposition of Mr. Ganz, with HDJV being responsible
for “all reasonable fees and costs incurred by Defendants associated with this
deposition, not to exceed a total of three hours of Defendants’ attorney time and
three 	hours 	of 	Defendants’ 	expert’s 	time 	(including 	the 	time 	spent 	at 	the
deposition).”3
Defendants now seek a total of $26,854.50 in attorney’s fees and $1,509.10
in costs.4 	According to the declaration of Defendants’ counsel and supporting
exhibits, Defendants’ fees comprise $25,429.50 for 80.45 hours of attorney and
paralegal time spent drafting their motion to exclude and its associated reply, plus
$1,425.00 	for 	their 	three 	hours 	of 	deposition 	time.5 	Defendants’ counsel’s
declaration lists the following individual totals:
• 	R. Page (attorney): 27.1 hours at $475 per hour;
• 	J. Peck (attorney): 3.4 hours at $375 per hour;
• 	H. Tilley (attorney): 41.95 hours at $260 per hour; and
• 	R. Culhane (paralegal): 8 hours at $225 per hour.6
3 Docket 64 at 2.
4 Docket 67 at 4.
5 Docket 67 at 4; Docket 67-1 at ¶¶ 5, 11, 12–13 (Decl. of Reid Page); see also Docket 67-2
(Third Party Invoices); Docket 67-3 (Redacted Billable Hour Invoice).
6 Docket 67-1 at 9, ¶ 13. Defendants’ declaration does not distinguish between hours spent on
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Defendants’ costs represent expenses incurred in connection with Mr. Ganz’s
second deposition.7
LEGAL STANDARDS
Under Rule 37(c) of the Federal Rules of Civil Procedure, if a party fails to
comply with Rule 26’s disclosure requirements, a district court may, on motion and
after giving an opportunity to be heard, impose sanctions on the offending party.8
These sanctions may include, among other things, an “order [of] payment of the
reasonable expenses, including attorney’s fees, caused by the failure.”9
To determine the appropriate amount for an award of attorney’s fees, district
courts in the Ninth Circuit use the “lodestar method,” which involves “multiplying
the number of hours the prevailing party reasonably expended on the [matter] by
a reasonable hourly rate.”10 “In determining the appropriate number of hours to be
included in a lodestar calculation, the district court should exclude hours ‘that are
the motion to exclude and hours spent on the deposition. See id.
7 Docket 67-1 at ¶ 8.
8 Fed. R. Civ. P. 37(c)(1).
9 Fed. R. Civ. P. 37(c)(1)(A).
10 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (quoting Ferland v. Conrad
Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001) (per curiam)). The Ninth Circuit’s published
decisions on this point have involved fee awards issued pursuant to specific statutes, not
Rule 37 sanctions, but district courts often apply their holdings to Rule 37 fee awards, too. See,
e.g., Netlist Inc. v. Samsung Elec. Co., 341 F.R.D. 650, 674–75 (C.D. Cal. 2022).
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excessive, redundant, or otherwise unnecessary.’”11 	Courts need not embark on
a line-by-line evaluation of a party’s legal invoices; instead, they have authority to
make an across-the-board percentage cut in the hours claimed to “trim[] the fat.”12
But in doing so, a district court must provide a “concise but clear explanation” of
its reasons for the fee award.”13
After a district court calculates the lodestar figure, it then assesses “whether
it is necessary to adjust the presumptively reasonable lodestar figure on the basis
of 	the 	Kerr 	factors 	that 	are 	not 	already 	subsumed 	in 	the 	initial 	lodestar
calculation.”14 	Because the lodestar method is “strong[ly] presum[ed]” to be
reasonable, further adjustments “are proper only in certain ‘rare’ and ‘exceptional’
cases.”15
11 McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
12 Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (citations omitted).
13 Hensley, 461 U.S. at 437; accord Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir.
2013) (citation omitted); Gates, 987 F.2d at 1402.
14 Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), amended on denial of reh’g,
108 F.3d 981 (9th Cir. 1997). The Kerr factors are: “(1) the time and labor required, (2) the
novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service
properly, (4) the preclusion of other employment by the attorney due to acceptance of the case,
(5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by
the client or the circumstances, (8) the amount involved and the results obtained, (9) the
experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the
nature and length of the professional relationship with the client, and (12) awards in similar
cases.” Id. at 363 n.8 (quoting Kerr v. Screen Actors Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.
1975)).
15 Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564–65 (1986)
(quoting Blum v. Stenson, 465 U.S. 886, 899 (1984)); see also Morales, 96 F.3d at 564 n.8
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DISCUSSION
Defendants assert that their request is a reasonable lodestar calculation,
supporting it with exhibits and a sworn declaration from their counsel that their time
accounting is accurate and that their hourly rates and fees are consistent with
those charged by lawyers of similar expertise and skill in their geographical area.
HDJV objects in part to Defendants’ requested award. HDJV does not object
to the hourly rates Defendants used in their lodestar calculation.16 	Nor does it
object to Defendants’ calculation of their fees and costs related to the second Ganz
deposition. HDJV only objects that: (1) Defendants “were only partially successful”
on their motion to exclude; (2) the number of hours Defendants spent on preparing
their motion to exclude and associated reply are both excessive and redundant;
and (3) Defendants included hours spent preparing for the sanctions hearing,
which was outside the scope of the Court’s order. HDJV requests the Court reduce
(“Only in rare instances should the lodestar figure be adjusted on the basis of other
considerations.” (quoting Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir. 1994))).
16 Defendants’ declaration states that its rates are consistent with prevailing rates in Denver, not
Anchorage. See Docket 67-1 at 4, ¶ 16. In lodestar calculations, however, the reasonableness
of hourly rates is usually determined according to the locality of the court, not the locality of the
party or its counsel. See, e.g., Camacho, 523 F.3d at 979 (“Generally, when determining a
reasonable hourly rate, the relevant community is the forum in which the district court sits.”). But
because HDJV did not challenge the reasonableness of Defendants’ hourly rates, the Court will
not reject them on that basis.
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by 50 percent the amount of fees Defendants seek in connection with their motion
to exclude.17
A. Whether Defendants Were “Only Partially Successful” in Bringing Their
Motion
HDJV asserts that Defendants’ requested fee award should be reduced
because Defendants “were only partially successful” on their motion to exclude.18
However, the Court awarded Defendants full reasonable fees and costs for their
motion on the theory that it would have been difficult to parse out Defendants’
logged hours on a report-by-report and argument-by-argument basis.19 	HDJV’s
assertion 	that 	Defendants’ fee 	award 	should 	be 	reduced 	for 	this 	reason 	is
essentially an untimely motion to reconsider that ruling and is therefore rejected.
B. Whether Defendants’ Number of Hours Are Excessive and/or Redundant
The Court agrees that the number of hours Defendants have included in
their lodestar calculation regarding their motion to exclude and the associated reply
memorandum are somewhat excessive. According to Defendants’ billing invoice,
their attorneys spent 36.15 hours preparing and drafting their motion to exclude,
17 Docket 68 at 4–7.
18 Docket 68 at 4.
19 See also Docket 55 at 20 (“HDJV would be required to pay Defendants’ reasonable attorney’s
fees and costs incurred in filing the motion to exclude the improper disclosures.”)
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plus 4.9 hours of a paralegal’s time.20 	Defendants’ counsel avers that such a
number of hours was necessary because “the attorneys were required to analyze
several lengthy expert reports from HDJV’s expert in an effort to determine which
opinions were objectionable.”21 Given that the expert reports in question were only
55 pages,22 53 pages,23 3 pages,24 and 1 page long,25 respectively, the Court finds
this figure slightly excessive.
Furthermore, 	the 	number 	of 	hours 	Defendants 	spent 	on 	their 	reply
memorandum appears to be clearly excessive. According to the invoice provided,
Defendants spent 32.6 hours of attorney time and 3.1 hours of a paralegal’s time
preparing and drafting their reply. 	But HDJV’s opposition memorandum was only
15 pages long and contained only six pages of legal arguments,26 and Defendants’
reply was only 12 pages long and contained only eight pages of legal arguments.27
Moreover, 	none 	of 	the 	legal 	issues 	involved 	were 	technical 	or 	complex.
20 See Docket 67-3 at 2–7.
21 Docket 67-1, ¶ 5.
22 See Docket 37-7.
23 See Docket 37-10
24 See Docket 37-11.
25 See Docket 37-12.
26 See Docket 40 at 14–19.
27 See Docket 49 at 3–11.
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Considering these factors, the Court concludes that Defendants’ number of hours
spent working on their reply is excessive.
However, the Court disagrees that the hours Defendants included in the
lodestar calculation are duplicative or redundant. 	In one instance, HDJV objects
that an associate billed hours for “draft[ing]” the motion to exclude, then a partner
billed hours to “draft and revise” the motion. 	But this appears to be an instance
where a partner both edited the associate’s draft and added additional content of
his or her own.28 	Similarly, Defendants’ hours billed for drafting, revising, and
corresponding about the motion to exclude do not appear to represent duplicative
activity.29 	Therefore, the Court does not find Defendants’ hours billed to be
redundant or duplicative.
C. Whether Defendants Improperly Included Hours Spent Preparing for the
Sanctions Hearing
HDJV asserts that Defendants are improperly “requesting that the Court
grant fees for time reviewing the Court’s Order and for time spent preparing for the
hearing before the Court.”30 	The Court agrees. 	Defendants’ billing invoice
contains six entries after Defendants’ filing of their reply on June 24.:31
28 See Docket 67-3 at 4–5.
29 See Docket 67-3 at 11–12.
30 Docket 68 at 6.
31 Docket 67-3 at 17, 20–21.
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By the Court’s calculation, these six entries total $4,800 in fees.
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The Court’s sanctions order directed HDJV to pay Defendants’ “reasonable
attorney’s fees and costs incurred in filing their Motion to Exclude . . . and the
associated reply.”32 	The order did not extend to “review[ing] and analyz[ing] the
court’s order,” “prepar[ing] for [the] sanctions hearing,” or “draft[ing] and revis[ing
a] clarification of position and motion for extension.” Defendants’ inclusion of these
hours in their request therefore exceeds the scope of the Court’s order and will not
be awarded.
D. Summary
In sum, the Court finds that Defendants’ number of hours spent working on
their motion to exclude and the associated reply memorandum are excessive,
although 	they 	are 	not 	duplicative 	or 	redundant. 	The 	Court 	also 	finds 	that
Defendants improperly included hours spent on matters outside the scope of the
Court’s sanctions order. 	In light of these findings, the Court will deduct the
improperly included hours and apply a 20 percent reduction to the final lodestar
figure. The Court finds that none of the additional Kerr factors warrants any further
adjustment to this lodestar calculation.
CONCLUSION
For the foregoing reasons, from Defendants’ total request of $25,429.50, the
Court first subtracts $4,800, resulting in a revised total of $20,629.50, to which the
32 Docket 64 at 2.
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Court applies a 20% reduction, resulting in an attorney fee award of $16,503.90
for the motion and reply. Defendants’ other requested fees and costs—$1,425.00
in attorney’s fees for deposition time and $1,509.10 in deposition costs—were not
opposed and are granted as reasonable. 	Adding these fees and costs together
totals $19,437.70.
Accordingly, Defendants’ motion is GRANTED IN PART AND DENIED IN
PART. 	The Court awards Defendants Rule 37(c)(1) monetary sanctions against
HDJV in the total amount of $19,437.70. This award shall be included as a debit
or credit in the final judgment to be entered at the conclusion of this litigation.
IT IS SO ORDERED.
DATED this 5 th day of December 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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