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McColl v. Allied Professionals Insurance Co.

United States District Court, D. Montana, Helena Division

October 22, 2018

TINA MCCOLL, Plaintiff,



         On April 4, 2018, the Court held oral argument on Plaintiff Tina McColl's Motion to Compel Discovery. (Doc. 106.) The Court granted in part, and denied in part, Plaintiff's request for costs and fees associated with the deposition of Sara Schroeder. (Doc. 107.) The Court ordered Defendant Allied Professionals Insurance Company (“Allied”) to pay reasonable costs and fees associated with the deposition, as well as fees and costs associated with post-deposition motions and briefs that related directly to the Schroeder deposition. (Id.) However, the Court found Plaintiff's requested fees and costs had not been properly supported. (Id.) Therefore, the Court ordered Plaintiff's counsel to submit an affidavit itemizing and detailing the costs and fees claimed, and explaining how each cost and fee related to the deposition. (Id.) In addition, the Court directed counsel to explain how he apportioned the costs and fees associated with post-deposition motions and briefs. (Id.) At the April 4 hearing, and again in its order, the Court cautioned Plaintiff's counsel that if it could not be determined from counsel's explanation how any of the fees and costs related to the deposition, or how an invoice item was apportioned, counsel's request for that particular cost or fee would be denied. (Id.)

         Plaintiff's counsel filed a Declaration in Support of Attorney's Fees and Costs (Doc. 106); Allied filed a Response (Doc. 108); and Plaintiff's counsel replied and supplied a Supplemental Declaration (Doc. 109).


         To calculate a reasonable award of attorney's fees, the Court looks to the lodestar approach set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Finley v. Hartford Life & Acc. Ins. Co., 249 F.R.D. 329, 332-33 (N.D. Cal. 2008) (applying the lodestar method to an award of attorney's fees under Fed.R.Civ.P 37). The basic lodestar method requires the Court to multiply the number of hours reasonably expended by a reasonable hourly rate. Grove v. Wells Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010). The party requesting an award of attorney's fees must present evidence supporting the number of hours worked and the hourly rate claimed. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). The Court may reduce the award of fees if the documentation supporting the request is inadequate. Hensley, 461 U.S. at 433.

         The requesting party “must provide detailed time records documenting the task completed and the time spent.” I.E.I. Co. v. Advance Cultural Ed., 2011 WL 1335407, *4 (N.D. Cal. 2011). “In determining the appropriate number of hours to be included in a lodestar calculation, the district court should exclude hours ‘that are excessive, redundant, or otherwise unnecessary.'” McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (citing Hensley, 461 U.S. at 434).

         The reasonable hourly rate is determined according to prevailing market rates in the relevant legal community. Carson v. Billings Police Dep't, 470 F.3d 889, 892 (9th Cir. 2006) (“[T]he ‘prevailing market rate,' not the individual contract, provides the standard for lodestar calculations.”). The burden of establishing the applicable market rate is on the requesting party. Generally, this is accomplished through affidavits, from the attorney performing the work and from another attorney who can testify to the current market rate. Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). The Court may also rely, in part, “on its own knowledge and experience” with the community's legal market and customary hourly rates. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011).

         After calculating the lodestar amount, the Court may then increase or reduce the lodestar figure based on an evaluation of the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975).[1] Chalmers v. City of Los Angeles, 796 F.2d 1205, 1212 (9th Cir. 1986). The Ninth Circuit has cautioned that the lodestar amount should only be adjusted “in rare and exceptional cases.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007). There is a strong presumption that the lodestar figure represents a reasonable fee. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987).


         A. Reasonable Hours Expended

         Plaintiff's counsel's breakdown of the fees and costs is confusing and contradictory. In his initial declaration, Plaintiff's counsel asserts he expended 170 hours over a period of six months on discovery-related issues. (Doc. 106 at ¶ 8.) He states the deposition and non-deposition issues are “inextricably intertwined so that no precise division of time can be had.” (Id. at ¶ 9.) But he estimates that one-half of the time, or 85 hours, was related to deposition issues. (Id.) Counsel then goes on, however, to itemize the fees and costs he claims to be associated with the Schroeder deposition. (Id. at ¶¶ 16-30.) All together, the itemized breakdown totals 162.55 hours. (Id.)

         In his reply, counsel again outlines his time expended on various discovery disputes. (Doc. 109.) Although it is difficult to determine precisely what portion of that time counsel attributes to the Sara Schroeder deposition, it appears counsel claims a total of approximately 187.45 hours. (Id. at 2-4.) But then, without explanation, counsel requests that he be reimbursed the sum of 59.9 hours at $300 per hour. (Id. at 4.) It is not at all clear which of the previously outlined items are included in the 59.9 hour figure.

         The Court finds Counsel's declarations are generally insufficient. Simply estimating that 50% of the time was spent on deposition issues falls well short of the specificity ordered by the Court. Further, counsel has presented the information in an inconsistent and unclear manner. Nevertheless, the Court determines that the following costs and fees are sufficiently documented and reasonably related to Ms. Schroeder's deposition, and should therefore be awarded to Plaintiff. All other requested fees and costs are denied as inadequately documented or explained.[2]



Hours Allowed


Deposition preparation



Travel to deposition



Deposition of Ms. Schroeder



Travel from deposition



Objection to readmission of Kadish



Hearing before Judge Haddon


2/14/18 - 3/5/18

Preparation of Brief and Declaration in Support of Fees




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