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awarding $175 per hour for attorney with seven years of experience and $190 for attorney with nine years of experience
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CIVIL NO. 08-00533 KSC
05-09-2011
ROBERT V. GUNDERSON, JR. and ANNE D. GUNDERSON, Plaintiffs, v. MAUNA KEA PROPERTIES, INC., a Hawaii corporation; and MAUNA KEA DEVELOPMENT CORP., a Hawaii corporation, Defendants/Third-Party Plaintiffs, v. COUNTY OF HAWAII, Third-Party Defendant.
ORDER AWARDING ATTORNEYS' FEES AND COSTS
On February 23, 2011, the Court issued an Order Granting in Part and Denying in Part Defendants Mauna Kea Properties, Inc. and Mauna Kea Development Corp.'s Motion for Attorneys' Fees and Costs ("Order"). The Court left for disposition the amount of the attorneys' fee award and issues of apportionment, and directed that the parties file supplemental briefs. On March 8, 2011, the parties filed their supplemental briefs. At the Court's direction, Defendants edited their tables and submitted a Revised Exhibit 3 on April 15, 2011. Plaintiffs, with leave of Court, filed a Second Supplemental Memorandum on April 20, 2011.
In this order, the Court shall determine whether apportionment is appropriate then calculate Defendants Mauna Kea Properties, Inc. and Mauna Kea Development Corp.'s (collectively "Defendants") fee award.
I. Apportionment
Defendants argue that apportionment only applies to claims in the nature of assumpsit, not to cases involving written contracts with attorneys' fees provisions. Plaintiffs contend that the Court should not award fees pertaining to any claims that are unrelated to the Declaration of Protective Covenants, Conditions and Restrictions for The Bluffs at Mauna Kea ("CCRs"). Specifically, Plaintiffs assert that the National Trails System Act ("NTSA") claim, as well as those claims relating to the historic nature of the trail, the Planning Director's authority, the Third Party Complaint, and the Counterclaim, do not arise from the right of enforcement and remedies of the CCRs.
Hawaii law is clear that in cases involving both assumpsit and non-assumpsit claims, "a court must base its award of fees, if practicable, on an apportionment of the fees claimed between assumpsit and non-assumpsit claims." TSA Int'l, Ltd. v. Shimizu Corp., 92 Hawai'i 243, 264, 990 P.2d 713, 734 (1999) (citation omitted). The court must determine whether each individual claim alleged in the complaint sounds in assumpsit or in tort and apportion fees between the assumpsit and non-assumpsit claims if practicable. Kona Enters. v. Estate of Bernice Pauahi Bishop, 229 F.3d 877, 885 (9th Cir. 2000). However, in some cases it may be impracticable or impossible to apportion fees. See, e.g., Blair v. Ing, 96 Hawai'i 327, 333, 31 P.3d 184, 190 (2001) ("Because the negligence claim in this case was derived from the alleged implied contract and was inextricably linked to the implied contract claim by virtue of the malpractice suit, we hold that it is impracticable, if not impossible, to apportion the fees between the assumpsit and non-assumpsit claims."). Thus, under Blair, a court may award reasonable attorneys' fees pursuant to Hawaii Revised Statutes ("HRS") § 607-14 to a party who succeeds on a contract claim that is "inextricably linked" to a tort claim, and decline to apportion fees. Id.
Less clear is whether this apportionment rule applies to cases where a contract provides for the award of attorneys' fees. The cases that discuss HRS § 607-14 and its pertinent predecessor statute, HRS § 607-17, do not require apportionment, nor discuss the applicability of the apportionment rule. See, e.g., Hawaiian Trust Co., Ltd. v. Cowan, 4 Haw. App. 166, 663 P.2d 634 (1983); Smothers v. Renander, 2 Haw. App. 400, 633 P.2d 556 (1981) (apportioning fee award to the plaintiff pursuant to former version of HRS § 607-14, which solely governed assumpsit claims, and awarding fees to the intervenor for the intervenor's claims and the counterclaims against it pursuant to HRS § 607-17, given the existence of an attorneys' fees provision in the mortgage at issue); Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 575 P.2d 869 (1978); Blair, 96 Hawai'i at 333, 31 P.3d at 190; TSA, 92 Hawai'i at 264, 990 P.2d at 734; DFS Group L.P. v. Paiea Props., 110 Hawai'i 217, 131 P.3d 500 (2006).
HRS § 607-17, repealed in 1993, provided:
Any other law to the contrary notwithstanding, where an action is instituted in the district or circuit court on a promissory note or other contract in writing which provides for an attorney's fee the following rates shall prevail and shall be awarded to the successful party, whether plaintiff or defendant:Haw. Rev. Stat. § 607-17 (repealed 1993).
(1) Where the note or other contract in writing provides for a fee of twenty-five per cent or more, or provides for a reasonable attorney's fee, not more than twenty-five per cent shall be allowed;
(2) Where the note or other contract in writing provides for a rate less than twenty-five per cent, not more than the specified rate shall be allowed; provided that the fee allowed in any of the above cases shall not exceed that which is deemed reasonable by the court.
Plaintiffs submit that "[i]f the nature of the claim is outside the terms of the provision providing for attorneys' fees, then the fee provision does not apply, and attorneys' fees are not authorized." Romero v. Hariri, 80 Hawai'i 450, 459, 911 P.2d 85, 94 (Haw. Ct. App. 1996) (citations omitted). While the Court does not dispute the applicability of the general legal principle cited by Plaintiffs, Romero is distinguishable. There, the prevailing party's tort claims fell outside the scope of the fee provision, which authorized a fee award in "any controversy, claim or dispute between the parties . . . arising out of or relating to this Agreement of the breach thereof." Id. Disallowing fees related to tort claims is consistent with HRS § 607-14 and the apportionment rule. Here, Plaintiff did not plead separate and distinct tort claims, much less any tort claims. As the Court will later discuss, Plaintiffs' claims were based, in large part, upon the CCRs. Consequently, the broad attorneys' fees provision in Section 12.5 of the CCRs covers the requested fees in this case.
Plaintiffs also cite a California appellate court case. This case neither persuasive nor instructive because it is a California case and it does not interpret HRS § 607-14.
Plaintiffs continue to dispute Defendants' entitlement to attorneys' fees under Section 12.5 of the CCRs. However, it is contradictory for them to challenge the Court's ruling when they themselves sought attorneys' fees in the Complaint pursuant to this very provision. Regardless, even if the CCRs were not a "contract in writing" as contemplated by HRS § 607-14, any claims related thereto would either be in the nature of assumpsit or so intertwined as to be non-apportionable.
Even assuming the apportionment rule applies to fee awards based on contracts, with the exception of the NTSA claim, it would be impossible to apportion fees in this case. What is more, it would be unnecessary to apportion fees because most of the litigated claims are based on or stem from the CCRs. Those claims not based on or stemming from the CCRs were either insignificant or could reasonably be deemed to be in the nature of assumpsit, i.e., breach of agreement regarding the location of the trail.
"Assumpsit is a common law form of action which allows for the recovery of damages for non-performance of a contract, either express or implied, written or verbal, as well as quasi contractual obligations." 808 Dev., LLC v. Murakami, 111 Hawai'i 349, 366, 141 P.3d 996, 1013 (2006) (citation, emphases, and quotation marks omitted); Helfand v. Gerson, 105 F.3d 530, 537 (9th Cir. 1997) ("Under Hawaii case law, an action in the nature of assumpsit includes 'all possible contract claims.'").
However, the mere fact that a claim "relate[s] to a contract between the parties does not render a dispute between the parties an assumpsit action." TSA Int'l, 92 Hawai'i at 264, 990 P.2d at 734. "'[T]he nature of a claim' is 'determined from the substance of the entire pleading, the nature of the grievance, and the relief sought, rather than from the formal language employed or the form of the pleadings.'" S. Utsunomiya Enters, Inc. v. Moomuku Country Club, 76 Hawai'i 396, 400, 879 P.2d 501, 505 (1994). For a claim to be in the nature of assumpsit, "the plaintiff's primary objective must be to obtain monetary relief for breach of the contract." Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai'i 251, 280, 151 P.3d 732, 761 (2007).
In an attempt to limit any fee award here, Plaintiffs aver that they only pled one claim concerning the CCRs and that issues related to the CCRs accounted for a mere 4-10% of the litigation. A review of the relevant pleadings reveals otherwise. In the Complaint, Plaintiffs alleged, with respect to both Counts I (injunctive relief) and II (monetary damages), that "MKP and MKDC are bound by the Akau settlement agreement, the SMA permit, the Smart deed, the MKP deed, the Bluffs file plan, the MKDC grant, and the Bluffs CCRS to maintain the shoreline trail in its proper location." Compl. at ¶¶ 74 and 82. Plaintiffs additionally sought to recover attorneys' fees and costs pursuant to Section 12.5 of the CCRs and other statutory provisions. Id. at ¶ 88.
The motions for summary judgment are more telling. In their motion for partial summary judgment (doc. no. 92), Plaintiffs stated:
The documents encumbering the Bluffs subdivision - the Akau settlement agreement and the CCRs require MKDC to maintain the shoreline trail in its pre-2007 location. CSOF 10-15, 19-25; Ex.2, p.5 and Ex.F; Ex.10, pp.27-28. The Akau settlement agreement requires MKDC to maintain Easement 3 as a nature trail. CSOF 13; Ex.2, pp.7-8. Section 6.6 of the CCRs expressly binds MKDC to comply with "all requirements and restrictions" of the Akau agreement. CSOF 24; Ex.10, p.25. MKP/MKDC's efforts to obliterate the historic shoreline trail in the vicinity of Lot 8, by blocking the trail with boulders, placing signs that purport to "close" the trail, and re-routing the trail, violate the "requirements and restrictions" of the Akau settlement.
MKP/MKDC therefore breached their obligations to the Gundersons under the sales contract and under the CCRs, and their obligations to the Akau plaintiffs and the public under the Akau settlement agreement, when it moved the trail in 2007. There is no genuine issue of material fact.Mem. in Support of Mot. for Partial Summary Judgment, Doc. No. 92-2 at 15-16. Plaintiffs primarily relied on the CCRs when they sought an injunction requiring Defendants to restore the shoreline trail to the location mandated by the Akau settlement. Plaintiffs noted that Section 7.6 of the CCRs subjected the property to certain easements, including the easement described in the Akau settlement; Section 6.6 of the CCRs bound Defendants to all requirements and restrictions of the Akau settlement; and Section 12.5 of the CCRs authorized Plaintiffs to seek a prohibitive or mandatory injunction. Id. at 8-9, 16. Plaintiffs attempted to broaden the applicability of the CCRs in litigating their motion and opposing Defendants' motions. At the heart of the litigation was whether Defendants improperly moved the trail and Plaintiffs heavily relied on the CCRs to back their claims. According to Plaintiffs, the CCRs required Defendants to abide by the terms of the Akau settlement. Thus, all arguments concerning violations of the Akau settlement were founded upon the CCRs. It is disingenuous for Plaintiffs to insist that the only issue related to the CCRs was whether Defendants were "owners" under the CCRs. That the Court ultimately determined that Defendants are not "owners" does not change the breadth of the CCRs claims as pled and litigated by Plaintiffs.
Section 12.5 of the CCRs provides: "each provision to this Declaration with respect to an Owner or the Lot of an Owner shall be enforceable . . . by an Owner by a proceeding for a prohibitive or mandatory injunction . . . ." CSOF 26; Ex.10, p.44 (emphasis added).
Plaintiffs secondarily argued that 1) any authority to relocate the trail was preempted by the NTSA and that 2) Defendants violated HRS § 7-1 by "blocking" the trail. The Court rejected both claims.
Even the introduction section in the "MEMORANDUM OF SUPPORT OF MOTION," attached to Plaintiffs' initial motion for partial summary judgment, which was withdrawn, stated:
In this diversity action, Plaintiffs Robert and Anne Gunderson (the "Gundersons") seek to enforce provisions in a Declaration of Covenants, Conditions and Restrictions for their property which require their neighbor, Defendant Mauna Kea Development Corporation ("MKDC"), to maintain a shoreline trail in its designated location. After giving the Gundersons repeated written and oral assurances, to induce them to purchase the property, that the trail could not legally be moved from its surveyed location, MKDC moved the trail inland, to a location that substantially impairs the Gundersons' privacy, safety and security.Doc. No. 37-2 at 1.
The Gundersons now seek a permanent injunction restoring the trail to its proper location. MKDC had no legal right to move the trail. The Gundersons have no adequate remedy at law, and restoration of the trail is necessary to serve the public interest -- both because maintenance of public access to the shoreline is a matter of substantial public interest under state law, and also because the trail in question is part of the Ala Kahakai National Historic Trail, which under federal law must be maintained "as closely as practical and practicable to its original location."
Certainly then, Defendants' response to allegations related to the CCRs, i.e., arguments that Plaintiffs violated the Akau settlement by moving the trail, was not as limited as Plaintiffs suggest. Although Defendants specifically challenged Plaintiffs' reliance on the CCRs by arguing that 1) Plaintiffs could not enforce Section 12.5 of the CCRs against Defendants because Defendants were not "owners" and 2) even if the CCRs applied, Defendants could not be held liable because they acted in good faith and without malice, one of their primary defenses against Plaintiffs' broad allegations was that the County directed them to relocate the trail for safety reasons. Essential to this discussion was whether the County had the authority to do so. Thus, Plaintiffs' contention that any work on the issue of the County's authority to relocate the trail should be disallowed from any fee award is unavailing.
Neither is the Court persuaded that Defendants should be precluded from recovering adequately documented fees for work on a wide range of matters not specifically referencing the CCRs. In addition to the NTSA claim, Plaintiffs argue that the time entries related to the Third Party Complaint; the stability of the cave; depositions; and Metzler Contracting are non-compensable because they do not relate to the CCRs claim. The Court disagrees. Plaintiffs' claims, as presented, necessitated extensive investigation, case development, discovery, and motions practice. To effectively defend against Plaintiffs' claims, which, as earlier discussed, stemmed from and related to the CCRs, Defendants had to conduct the requisite investigation and discovery to form the basis for their discussion about and analysis of the County's authority and the history of the trail presented in response to Plaintiffs' motion for partial summary judgment and in their motion for partial summary judgment regarding the County's authority. As such, the Court declines to exclude time entries just because they may not expressly reference the CCRs or "relate" to the CCRs claim as directly as Plaintiffs believe they should.
Nevertheless, because the NTSA claim is distinct and the fees incurred in connection with said claim can be apportioned, the Court finds that said fees should be excluded from any award. Defendants attempted to apportion fees related to the NTSA claim. Ex. 15. Plaintiffs contend that defense counsel expended far more time litigating the NTSA claim than is reflected in Exhibit 15. While the Court agrees that Exhibit 15 does not include all of the time expended in connection with the NTSA claim, the Court declines to find that all time entries referencing the Ala Kahakai Trail relate only to the NTSA claim. Indeed, Defendants referred to the trail that is the subject of this litigation as the "Ala Kahakai Trail" in their Motion for Partial Summary Judgment Based Upon County of Hawaii's Authority and the Declaration of Protective Covenants, Conditions and Restrictions for the Bluffs at Mauna Kea. Doc. No. 110-2 at 1. It is therefore unreasonable to conclude that any time entry referencing "Ala Kahakai" relates only to the NTSA claim. When assessing the reasonableness of the claimed fees, the Court will exclude any hours attributable to the NTSA claim (not set forth in Exhibit 15), where appropriate.
Plaintiffs are correct that 26 time entries from 5/21/09-5/27/09, included in Exhibit 3, were incurred in connection with Defendants' initial motion for partial summary judgment on the NTSA claims. These hours will be excluded. So too will the hours that are linked to those entries. As the Court will discuss in greater detail below, defense counsel's extensive, and almost exclusive, use of block billing necessarily requires that when certain hours are deemed non-compensable, those tasks associated with and included in the block billed entry be excluded as well.
For example, Plaintiffs erroneously argue that defense counsel's (Christopher Bennett) time entry dated 3/4/10 describing the drafting of Yoichi Asari's declaration relating to the Ala Kahakai National Historic Trail is an NTSA entry. Said declaration was submitted with Defendants' Concise Statement in Opposition to Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Count I of Plaintiffs' Complaint. Doc. No. 125-4.
II. Calculation of Attorneys' Fees
The Court shall now calculate the reasonableness of the fees requested by Defendants. Originally, Defendants sought $419,779.41 in attorneys' fees. Now, after revising their timesheets, Defendants request $407,742.65 in attorneys' fees for all but the NTSA claim and Counterclaim, and $10,990.24 in fees for the NTSA claim, for a total of $418,732.89. As discussed above, the Court declines to award the fees associated with the NTSA claim because they are severable and were sufficiently distinct from the primary issues in this litigation.
The total of the various subtotal amounts for each litigation phase presented in the most current version of Exhibit 3 is $391,171.50, not $407,742.65. Based on the Court's thorough review of Exhibit 3 and the underlying invoices, and calculation of the requested hours therein, $403,485.44 is the amount of the actual fee request (minus the NTSA fees included in Exhibit 15 and the fees associated with the counterclaim). The Court will rely on its own calculations in assessing the reasonableness of the fee request. The Court notes that there were some discrepancies between the invoices and the hours presented in Exhibit 3. For example, Melvin Miyagi's 6/15/09 time entry in the underlying invoices was 2.1 hours. Yet his 6/15/09 entries under "Case Development and Administration" total 3.8 hours.
As the Court discussed in the Order, even the originally requested amount of $419,779.41 falls well below HRS § 607-14's 25% cap, which the Court found to be $1,250,000. Order at 16 & n.2.
Hawaii courts calculate reasonable attorneys' fees based on a method that is virtually identical to the traditional "lodestar" calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See DFS Group, 110 Hawai'i at 222, 131 P.3d at 505. The court must determine a reasonable fee by multiplying the number of hours reasonably expended by a reasonable hourly rate. See id. at 222-23, 131 P.3d at 505-06. In addition, courts may consider the following factors:
(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client.Chun v. Bd. of Trs. of Employees' Ret. Sys. of Hawai'i, 106 Hawai'i 416, 435, 106 P.3d 339, 358 (2005) (citations omitted). These factors, however, are merely guides; courts need not consider them in every case. See id. In certain types of cases, some of these factors may justify applying a multiplier to the "lodestar" amount. See Chun v. Bd. of Trs. of Employees' Ret. Sys. of Hawai'i, 92 Hawai'i 432, 442, 992 P.2d 127, 137 (2000).
The breakdown of the fee request is as follows:
| NAME | HOURS | RATE | TOTAL |
|---|---|---|---|
| J. Douglas Ing | 18.6 | $325.00 | $6,045.00 |
| Melvyn Miyagi | 193.1 | $325.00 | $62,757.50 |
| Brian Kang | 218.1 | $275.00 | $59,977.50 |
| Emi Kaimuloa | 343.9 | $250.00 | $85,975.00 |
| Karen Arikawa | 158.3 | $230.00 | $36,409.00 |
| Lisa Hirahara | 5.4 | $230.00 | $1,242.00 |
| ChristopherBennett | 442 | $230.00 | $101,660.00 |
| Ross Shinyama | 1.5 | $230.00 | $345.00 |
| Ellen Yamamoto | 259.8 | $125.00 | $32,475.00 |
| Martha Martir | 3.7 | $125.00 | $462.50 |
| TAX (4.166%) | $16,136.94 | ||
|---|---|---|---|
| TOTALS | 937.4 | $403,485.44 |
A. Reasonable Hourly Rate
As set forth above, Defendant requests the following hourly rates: 1) J. Douglas Ing - $325; 2) Melvyn Miyagi - $325; 3) Brian Kang - $275; 4) Emi Kaimuloa - $250; 5) Karen Arikawa - $230; 6) Lisa Hirahara - $230; 7) Christopher Bennett - $230; 8) Ross Shinyama - $230; 9) Ellen Yamamoto - $125; and 10) Martha Martir - $125. The Hawaii courts consider the reasonable hourly rate in a manner virtually identical to the traditional lodestar formulation and some courts have considered federal law in determining a reasonable hourly rate. See, e.g., Reiche v. Ferrera, No. 24449, 2003 WL 139608, at *8 (Haw. Ct. App. Jan. 16, 2003) (citing United States v. Metro. Dist. Comm'n, 847 F.2d 12, 19 (1st Cir. 1988)) ("The reasonable hourly rate is that prevailing in the community for similar work."). But see DFS Group, 110 Hawai'i at 223, 131 P.3d at 506 (determining a reasonable hourly rate by calculating the average of the four requested rates). This Court therefore finds federal case law to be instructive with respect to the determination of a reasonable hourly rate.
In determining the reasonableness of an hourly rate, the experience, skill, and reputation of the attorney requesting fees are taken into account. See Webb v. Ada County, 285 F.3d 829, 840 & n.6 (9th Cir. 2002). The reasonable hourly rate should reflect the prevailing market rates in the community. See id.; Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as amended on denial of reh'g, (1993) (noting that the rate awarded should reflect "the rates of attorneys practicing in the forum district"); see also Chun, 106 Hawai'i at 435, 106 P.3d at 358 (listing "the customary charges of the Bar for similar services" as a factor that may be considered). It is the burden of the fee applicant to produce satisfactory evidence, in addition to an affidavit from the fee applicant, demonstrating that the requested hourly rate reflects prevailing community rates for similar services. See Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987).
Mr. Ing has practiced for over 34 years in the areas of government and regulatory law, land use, and litigation. See Mot., Aff. of Brian A. Kang ("Kang Aff.") at ¶ 5. Mr. Miyagi has been a member of the Hawaii Bar since 1975. Mr. Kang has been licensed since 1995. Ms. Kaimuloa graduated from law school and obtained her license in 2002. Ms. Arikawa, Ms. Hirahara, and Mr. Bennett all received their licenses in 2004. Mr. Shinyama has been a member of the bar since 2007. Ms. Yamamoto is and Ms. Martir was a paralegal with Watanabe Ing, LLP. Id. at ¶¶ 14-15.
This Court is well aware of the prevailing rates in the community for similar services performed by attorneys and paralegals of comparable experience, skill and reputation. Based on this Court's knowledge of the community's prevailing rates, the hourly rates generally granted by the Court, the Court's familiarity with this case, and defense counsel's submissions, this Court finds that with the exception of Mr. Ing and Mr. Miyagi's hourly rates, the requested hourly rates are slightly excessive. Accordingly the Court hereby adjusts said hourly rates and finds that the following rates are manifestly reasonable: Mr. Kang - $235; Ms. Kaimuloa - $190; Ms. Arikawa - $175; Mr. Bennett - $175; Ms. Hirahara - $175; Mr. Shinyama - $150; Ms. Yamamoto - $90; and Ms. Martir - $80.
B. Reasonable Hours Expended
For the reasoning stated in Section II.A, this Court finds federal case law instructive with respect to the reasonable number of hours expended on the instant case. Beyond establishing a reasonable hourly rate, a prevailing party seeking attorneys' fees bears the burden of proving that the fees and costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained. See Tirona v. State Farm Mut. Auto. Ins. Co., 821 F. Supp. 632, 636 (D. Haw. 1993) (citations omitted); see also Sharp v. Hui Wahine, 49 Haw. 241, 247, 413 P.2d 242, 246 (1966) (the party requesting fees has the burden to prove that the requested fees were reasonably and necessarily incurred). The court must guard against awarding fees and costs which are excessive, and must determine which fees and costs were self-imposed and avoidable. See Tirona, 821 F. Supp. at 637 (citing INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir. 1987), cert. denied, 484 U.S. 927 (1987)). Courts have the "discretion to 'trim fat' from, or otherwise reduce, the number of hours claimed to have been spent on the case." Soler v. G & U, Inc., 801 F. Supp. 1056, 1060 (S.D.N.Y. 1992) (citation omitted).
At the outset, the Court notes that Defendants' latest Exhibit 3 is deficient. When Defendants filed their motion for attorneys' fees, they submitted their invoices, highlighted by litigation category, for the Court's review. In its Order, the Court directed Defendants to resubmit the information in a condensed table/chart or other format that is more easily reviewable. Order at 20. On March 8, 2011, Defendants submitted a revised Exhibit 3. As explained in the April 11, 2011 Entering Order, the Court was unable to meaningfully review and/or calculate the fee award based on the table provided by Defendants because the time entries were presented by invoice date (versus by calendar date or task), and each time entry contained multiple tasks completed over the course of multiple dates within a given billing period. Doc. No. 170. The Court directed Defendants to resubmit their revised Exhibit 3 as a table containing all time entries, as billed. Id. The latest version of Exhibit 3 contains all time entries, but not as billed, which is in contravention of the Court's directive. Instead of presenting tables with the billings as they appeared in the invoices, Defendants took the liberty of itemizing most of the block-billed entries.
The Court will discuss block-billing in greater detail later, and explain why reductions are necessary for this billing practice.
The Court questions the accuracy of the itemization given the passage of time since the commencement of this case in 2008. A significant portion of the time entries are from 2009, with the remaining entries from as early as November 2008, and as late as September 2010. The itemization of the hours expended by attorneys who are no longer at Watanabe Ing is particularly suspect. Given the volume of time entries in this case, it is difficult to believe that counsel could successfully and accurately create itemized time entries for work originally block-billed that was completed at minimum six months ago, and at most approximately two and a half years ago. For this reason, the Court does not accept Defendants' newly-created itemizations.
Based on a review of the Watanabe Ing website, it appears that Ms. Hirahara, Ms. Arikawa, and Mr. Bennett are no longer with the firm.
It is within the Court's discretion to simply determine that a fee award of $0 is proper because Defendants have again failed to present their time entries in a manner that enables the Court to efficiently and accurately assess the reasonableness of the requested hours, despite having had ample opportunities to do so. Local Rule 54.3(g) ("Failure to follow these rules regarding motions for attorneys' fees and/or related non-taxable expenses on more than one occasion in a case may, in the court's sole discretion, result in the denial of such motions with prejudice."). Because nearly all of defense counsel's time entries were block-billed, the itemization of these entries has resulted in a significantly greater number of entries for the Court to review. However, the Court has decided, though with some hesitation, to conduct an extraordinarily time consuming and painstaking comparative analysis of the current Exhibit 3 and the invoices, to accurately assess the fee request. The Court will review the itemized entries for deficiencies other than block-billing, but if said entries were block-billed in the original invoice, they will be deemed block-billed for the purposes of this Court's assessment, as discussed in greater detail below.
Again, the Court is not accepting the itemization, but uses it to the extent necessary to assist in the determination of whether time entries are duplicative and/or excessive.
After careful review of Exhibit 3 and the underlying invoices, the Court finds that the following reductions are necessary and appropriate.
1. Excessive/Duplicate Billing
Time expended on work deemed "excessive, redundant, or otherwise unnecessary" shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, 461 U.S. at 433-34). In the present case, the involvement of numerous attorneys resulted in excessive and duplicate billings. While the Court recognizes that complex cases may require the participation of multiple attorneys, Davis v. City & County of San Francisco, 976 F.2d 1536, 1544 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993), the Court finds that such participation caused needless redundancies. District court findings about matters such as the redundancy of the hours claimed are given considerable deference. Id. (quoting Hensley, 461 U.S. at 437.
For example, it was redundant for five attorneys to review the Court's order denying Plaintiffs' motion for reconsideration.
The Court additionally reduces the attorneys' hours for meetings, discussions, and other communications, for which multiple attorneys billed. The general rule is that two professionals cannot bill for attending the same meeting. Brandon E. v. Dep't of Educ., State of Hawaii, No. CV 07-00536 ACK-LEK, 2008 WL 4602533, at *3 (D. Haw. Oct. 16, 2008). Thus, when a party's counsel meet with one other, the Court deducts the duplicative time billed. Id.; In re Mullins, 84 F.3d 459, 467 (D.C. Cir. 1996) (deducting fees incurred by the two lowest-billing attorneys where three attorneys billed time spent attending a meeting together)). The Court also deducts the hours charged by an attorney who merely attends (but does not actively participate in) hearings, status conferences, settlement conferences, and depositions, and the like. See, e.g., Sheffer v. Experian Info. Solutions, Inc., 290 F. Supp. 2d 538, 546 (E.D. Pa. 2003) (disallowing fees for mere attendance at deposition). Co-counsel's attendance at these types of events is understandable, but the resulting duplicative fees should not be taxed against Plaintiffs.
After carefully reviewing the time entries submitted by defense counsel, the Court finds that the following hours were excessive and/or duplicative: 1) Mr. Miyagi - 3.9; 2) Mr. Kang - 21.2; 3) Ms. Kaimuloa - 18.3; 4) Mr. Bennett - 26.6; 5) Ms. Hirahara - 1; 6) Ms. Arikawa - 5.4; 7) Ms. Yamamoto - 20.2; and 8) Ms. Martir - 0.1. Insofar as most of these tasks/hours are part of block-billed entries, the Court must also reduce the remaining hours in the block-billed entry, even though the tasks, if billed separately, would be compensable. The use of block-billing deprives the Court of the opportunity to reasonably and accurately apportion the time between a non-compensable task and a compensable task. Accordingly, the Court makes the following additional reductions for the tasks linked to the hours deemed excessive/duplicative: 1) Mr. Miyagi - 0.6; 2) Mr. Kang - 6.6; 3) Ms. Kaimuloa - 7.9; 4) Mr. Bennett - 14.4; and 5) Ms. Arikawa - 5.4.
Ms. Martir's 0.1 hour entry on 4/12/09 in the "Depositions" section of Exhibit 3 is not in the underlying invoices. Consequently, it is excluded.
The Court has not excluded the entire time entry in the instances where a non-compensable task is only one of many tasks completed in what appears to be an entire day's billing.
The total reductions for excessive/duplicate billings and, where applicable, the hours linked thereto are: 1) Mr. Miyagi - 4.5; 2) Mr. Kang - 27.8; 3) Ms. Kaimuloa - 26.2; 4) Mr. Bennett - 41; 5) Ms. Hirahara - 1; 6) Ms. Arikawa - 10.8; 7) Ms. Yamamoto - 20.2; and 8) Ms. Martir - 0.1.
2. Clerical or Ministerial Tasks
A number of counsel's time entries reflect billing for clerical/ministerial work, i.e., communication with the Court, reviewing court filing and other notices, and are therefore non-compensable. "[C]lerical or ministerial costs are part of an attorney's overhead and are reflected in the charged hourly rate." Jeremiah B. v. Dep't of Educ., Civil No. 09-00262 DAE-LEK, 2010 WL 346454, at *5 (D. Haw. Jan. 29, 2010) (citing Sheffer, 290 F. Supp. 2d at 549). Tasks such as reviewing Court-generated notices, notifying clients of court hearings, filing documents with the Court, communication with court staff, scheduling, and corresponding regarding deadlines, are clerical and not compensable. Id. (finding that entries for communications about, and internal office management of, hearing dates and due dates are clerical in nature); Nicholas M. ex rel. Laura M. v. Dep't of Educ., Hawaii, Civ. No. 09-00162 HG-LEK, 2010 WL 234862, at *5 (D. Haw. Jan. 21, 2010) (finding that tasks such as informing a client that a document has been filed or informing client of a hearing date is clerical or ministerial); Hawaii Carpenters Trust Funds v. Cosier Const., Inc., Civil No. CV 08-00442 SOM-LEK, 2009 WL 291188, at *3 (D. Haw. Feb. 03, 2009) (finding that review of district court filing notices are clerical and non-compensable); Bandalan v. Castle & Cooke Resorts, LLC, Civil No. 07-00591 DAE-LEK, 2009 WL 1955328, at *5 (D. Haw. June 30, 2009) (clerical tasks include reviewing notices of the date and time for motions hearings and notices of filing deadlines); Young v. Geico Indem. Co., Civ. No. 08-00171 JMS/KSC, 2009 WL 3049640, at *8 (D. Haw. Sept. 23, 2009) (communications with the court are clerical and not compensable).
The Court deems the following hours to be clerical and will exclude them from Defendants' fee award: 1) Mr. Miyagi - 1; 2) Mr. Kang - 3.3; 3) Ms. Kaimuloa - 1.6; 4) Mr. Bennett - 3.4; and 5) Ms. Arikawa - 0.4. The linked hours that must be deducted are as follows: 1) Mr. Miyagi - 0.2; 2) Mr. Kang - 7; 3) Ms. Kaimuloa - 0.1; 4) Mr. Bennett - 4.1; and 5) Ms. Arikawa - 2.1. In total, the Court imposes these reductions for clerical tasks and the block-billed linked tasks: 1) Mr. Miyagi - 1.2; 2) Mr. Kang - 10.3; 3) Ms. Kaimuloa - 1.7; 4) Mr. Bennett - 7.5; and 5) Ms. Arikawa - 2.5.
3. Inadequate Entries
Although counsel's time entries are in large part sufficiently descriptive, a number of tasks must be excluded due to the inadequacy of the descriptions. Local Rule 54.3(d)(2) requires that the "party seeking an award of fees must describe adequately the services rendered, so that the reasonableness of the requested fees can be evaluated." Local Rule 54.3(d)(2). In those instances where the time entries are insufficiently described, the Court is unable ascertain whether the time expended by counsel was reasonable. As a result, the Court deducts 1.9 hours from Mr. Ing, 16 hours from Mr. Miyagi, 45.2 hours from Mr. Kang, and 3.1 hours from Ms. Arikawa. The Court deducts these additional hours for the time/tasks linked to the inadequate entries: 1) Mr. Ing - 5 hours; 2) Mr. Miyagi - 3.4 hours; 3) Mr. Kang - 26.6; and 4) Ms. Arikawa - 3.4. In sum, the total hours deducted for insufficient descriptions are: 1) Mr. Ing - 6.9; 2) Mr. Miyagi - 19.4; 3) Mr. Kang - 71.8; and 4) Ms. Arikawa - 6.5.
For example, Mr. Kang's time entry dated 4/17/09 (Case Development and Administration) states "Telephone call from A. Beaman." This description fails to identify the subject of the telephone call, in violation of Local Rule 54.3. Local Rule 54.3(d)(2) (providing example that "time entries for telephone conferences must include an identification of all participants and the reason for the call").
4. NTSA Entries
The Court also finds it appropriate and necessary to deduct the hours related to the NTSA claim and/or work inextricably linked to the NTSA claims due to block-billing. These hours are in addition to the time entries set forth in Exhibit 15. The reductions are as follows: 1) Mr. Miyagi - 4.9; 2) Mr. Kang - 3.1; 3) Mr. Bennett - 29.9; and 4) Ms. Arikawa - 3.3.
5. Block Billing
Finally, the Court must reduce some of the requested hours due to "block billing." "The term 'block billing' refers to the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks." Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir. 1998) (citations and quotation marks omitted). Block billing entries generally fail to specify a breakdown of the time spent on each task.
District courts have the authority to reduce hours that are billed in block format because such a billing style makes it difficult for courts to ascertain how much time counsel expended on specified tasks. Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). See also id. (citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (reducing requested hours because counsel's practice of block billing "lump[ed] together multiple tasks, making it impossible to evaluate their reasonableness")); see also Hensley, 461 U.S. at 437 (holding that applicant should "maintain billing time records in a manner that will enable a reviewing court to identify distinct claims")). Indeed, it is a challenge to determine the reasonableness of a time entry when it includes several tasks.
Defense counsel's almost exclusive use of block billing here makes it difficult, if not impossible, for the Court to ascertain the reasonableness of the hours expended with respect to specific time entries. Because the Court has declined to accept the itemizations of the time entries that were originally billed in the block format, the Court hereby imposes an across-the-board reduction of 20% to defense counsel's remaining hours due to the use of block-billing. Ordinarily, the Court would only reduce the hours billed in the block style. Welch, 480 F.3d at 948 (district court erred in applying a 20% reduction to all of the requested hours when barely more than half of all hours submitted by counsel were block billed). However, because a careful review of the underlying invoices reveals that nearly all of the time entries were block-billed, an across-the-board reduction of all remaining requested hours is appropriate. Applying the reductions for excessive/duplicate entries, clerical work, inadequate entries, and work related to the NTSA claim, counsel's compensable hours are as follows: 1) Mr. Ing - 11.7; 2) Mr. Miyagi - 163.1; 3) Mr. Kang - 105.1; 4) Ms. Kaimuloa - 316; 5) Mr. Bennett - 363.6; 6) Ms. Hirahara - 4.4; 7) Ms. Arikawa - 135.2; 8) Mr. Shinyama - 1.5; 9) Ms. Yamamoto - 239.6; and 10) Ms. Martir - 3.6. The Court reduces the foregoing hours by 20%, which results in compensable hours totaling: 1) Mr. Ing - 9.36; 2) Mr. Miyagi - 130.48; 3) Mr. Kang - 84.8; 4) Ms. Kaimuloa - 252.8; 5) Mr. Bennett - 290.88; 6) Ms. Hirahara - 3.52; 7) Ms. Arikawa - 108.16; 8) Mr. Shinyama - 1.5; 9) Ms. Yamamoto - 191.68; and 10) Ms. Martir - 3.6. The Court finds that these hours were reasonably expended by counsel in this action.
This is particularly so inasmuch as Defendants, by employing the block-billing method, have not sufficiently carried their burden of "documenting the appropriate hours expended in the litigation and . . . submit[ting] evidence in support of those hours worked." Gates, 987 F.2d at 1397 (citing Hensley, 461 U.S. at 437); Tirona, 821 F. Supp. at 636. Because Defendants have failed to meet their burden, deductions must be made accordingly. It would be unreasonably burdensome for the Court to comb through the nearly 1,000 billed hours to segregate the very small handful of hours that were not block billed, especially where, as here, Defendants' presentation of their billings has complicated and delayed the disposition of this matter.
The Court will not reduce Mr. Shinyama's sole time entry because he did not block bill.
The Court will not reduce Ms. Martir's hours because she did not block bill.
6. Total Fee Award
The Court is satisfied that Defendants have established the appropriateness of the following attorneys' fees incurred in the present action:
| NAME | HOURS | RATE | TOTAL |
|---|---|---|---|
| J. Douglas Ing | 9.36 | $325.00 | $3,042.00 |
| Melvyn Miyagi | 130.48 | $325.00 | $42,406.00 |
| Brian Kang | 84.8 | $235.00 | $19,928.00 |
| Emi Kaimuloa | 252.8 | $190.00 | $48,032.00 |
| Karen Arikawa | 108.16 | $175.00 | $18,928.00 |
| Lisa Hirahara | 3.52 | $175.00 | $616.00 |
| Christopher Bennett | 290.88 | $175.00 | $50,904.00 |
| Ross Shinyama | 1.5 | $150.00 | $225.00 |
| Ellen Yamamoto | 191.68 | $90.00 | $17,251.20 |
| Martha Martir | 3.6 | $80.00 | $288.00 |
| TAX (4.166%) | $8,399.50 | ||
|---|---|---|---|
| TOTALS | 589.12 | $210,019.70 |
Based on the foregoing, the Court HEREBY AWARDS Defendants $210,019.70 in attorneys' fees and tax.
III. Costs
In the Order, the Court granted Defendants leave to provide an itemization of the costs in Exhibits 9(e) and (f). Defendants have provided itemizations and the Court finds that the following costs were reasonably and necessarily incurred.
A. Service Fees
Section 1920(1) of Title 28 of the U.S. Code allows for the taxation of the fees of the marshal. See also Local Rule 54.2(f)(1) ("Fees for the service of process and service of subpoenas by someone other than the marshal are allowable, to the extent they are reasonably required and actually incurred."). Defendants submitted itemized documentation to support their request. After reviewing the invoices submitted by Defendants, the Court finds taxable the $331.50 in service fees related to the depositions of Bobby-Jean Leithead-Todd; Thomas Bingham & Associates; Metzler Contracting Co., LLC; David Tamura Associates, Inc.; R.M. Towill; Yogi Kwong Engineers; Fred's Nursery; Kai Pono Builders; and R.L. Scott Seymour Nursery.
B. Witness Fees
Defendants seek reimbursement of witness fees in the amount of $320.00 for Bobby-Jean Leithead-Todd; Thomas Bingham & Associates; Metzler Contracting Co., LLC; David Tamura Associates, Inc.; R.M. Towill; Yogi Kwong Engineers; Fred's Nursery; Kai Pono Builders; and R.L. Scott Seymour Nursery. Witness fees are taxable pursuant to 28 U.S.C. § 1920(3). Local Rule 54.2(f)(3) further specifies that "[p]er diem, subsistence, and mileage payments for witnesses are allowable to the extent reasonably necessary and provided for by 28 U.S.C. § 1821." Local Rule 54.2(f)(3); see also Clausen v. M/V New Carissa, 339 F.3d 1049, 1064 (9th Cir. 2003) (stating that witness fees are taxable costs under § 1920(3), but are limited to forty dollars per day under 28 U.S.C. § 1821(b)). Section 1821(b) limits witness fees to $40.00/day.
Defendants paid $280.00 for Thomas Bingham & Associates; Metzler Contracting Co., LLC; David Tamura Associates, Inc.; R.M. Towill; Yogi Kwong Engineers; Fred's Nursery; Kai Pono Builders; and R.L. Scott Seymour Nursery witness fees, and $40.00 for Bobby-Jean Leithead-Todd's witness fee. The requested amounts are statutorily permitted § 1821(b). Accordingly, the Court taxes $320.00 in witness fees.
C. Photocopying Costs
Defendants request $30.00 in copying costs Section 1920(4) explicitly provides for the taxation of copying costs. Local Rule 54.2(f)4 further specifies that:
The cost of copies necessarily obtained for use in the case is taxable provided the party seeking recovery submits an affidavit describing the documents copied, the number of pages copied, the cost per page, and the use of or intended purpose for the items copied. As of the effective date of these rules, the practice of this court is to allow taxation of copies at $.15 per page or the actual cost charged by commercial copiers, provided such charges are reasonable. The cost of copies obtained for the use and/or convenience of the party seeking recovery and its counsel is not allowable.Local Rule 54.2(f)(4). Because the copying costs in Exhibits 9(e) and (f) are from court reporter services, which are in essence "commercial copiers," the Court finds that the costs were reasonably and necessarily incurred. As such, the Court taxes $30.00 in copying costs.
D. Postage
Finally, Defendants request $57.70 in postage and handling. The recovery of postage is permitted under HRS § 607-9. The Court therefore directs that Defendants be reimbursed $57.70 in postage costs.
In sum, Defendants are entitled to an additional $739.20 in costs.
CONCLUSION
In accordance with the foregoing, the Court HEREBY AWARDS Defendants $210,019.70 in attorneys' fees and tax and $739.20 in costs, for a total of $210,758.90.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 9, 2011.
/s/_________
Kevin S.C. Chang
United States Magistrate Judge