Case 2:11-cv EFS Document 666 Filed 09/24/15

Transcription

1 Case :-cv-00-efs Document Filed 0// UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 0 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, v. Plaintiff, GLOBAL HORIZONS, INC., d/b/a Global Horizons Manpower, Inc.; GREEN ACRE FARMS, INC.; VALLEY FRUIT ORCHARDS, LLC; and DOES -0 inclusive, Defendants. No.: CV--0-EFS ORDER GRANTING IN PART, DENYING IN PART, AND HOLDING IN ABEYANCE IN PART THE GROWER DEFENDANTS JOINT MOTION FOR AN AWARD OF ATTORNEY S FEES AND COSTS 0 Green Acre Farms and Valley Fruit Orchards (collectively, Grower Defendants ) ask the Court to award them attorney s fees of $,0, and costs of $0,., totaling $,,.0, incurred in defending this action. ECF No.. The breakdown of the requested attorney s fees is set forth in three separate detailed time charts, which list the date, attorney or paralegal performing the work, the individual s hourly rate, and work performed, for each of the three law firms retained by the Grower Defendants to defend this Title VII action brought by the EEOC: ) Stokes Lawrence Velikanje Moore & Shore ( Stokes Lawrence ), ECF No., Ex. A, totaling $,.0; ) Seyfarth Shaw ORDER -

2 Case :-cv-00-efs Document Filed 0// LLP, ECF No. 0, totaling $, ; and ) Freeman Freeman & Smiley, ECF No., totaling $.00. The Grower Defendants also filed a 0 chart summarizing their costs in this lawsuit, as well as copies of the related receipts and billing statements, ECF No. Ex. C. The EEOC opposes the motion, contending that the Court s finding that the EEOC s claims against the Grower Defendants were frivolous and without foundation was erroneous and that even if Grower Defendants are awarded attorney s fees and costs, the requested amounts should be significantly reduced. After reviewing the filed material in light of the entire file and relevant legal authority, the Court is fully informed. As explained below, the Court grants in part, denies in part, and holds in abeyance in part the Grower Defendants motion. A. Analysis The Court previously determined the Grower Defendants are entitled to seek reasonable attorney s fees and costs in this Title VII action pursuant to U.S.C. 000e-(k) because this is an exceptional case where the EEOC failed to conduct an adequate investigation to ensure that Title VII claims could reasonably be brought against the Grower Defendants, pursued a frivolous theory of joint-employer liability, 0 Seyfarth Shaw put forth two different totals for the attorney s fees incurred by the Grower Defendants. Paragraph of Christopher DeGroff s Declaration lists $,.0, ECF No. 0, while the time chart calculates $,, ECF No. 0, Ex. A at. The Court utilizes $, as that is the total of the hourly amounts listed in the Seyfarth Shaw time chart and is the amount requested by the Grower Defendants. ORDER -

3 Case :-cv-00-efs Document Filed 0// 0 sought frivolous remedies, and disregarded the need to have a factual basis to assert a plausible basis for relief under Title VII against the Grower Defendants. ECF No. at. The EEOC disagrees with the Court s finding that the EEOC s claims against the Grower Defendants were unfounded and that it frivolously sought certain remedies, repeating its arguments pertaining to its joint-employer theory of liability against the Grower Defendants. In essence, the EEOC requests the Court reconsider its ruling that the Grower Defendants are prevailing parties entitled to recover their reasonable fees and expenses under 000e-(k). Reconsideration is appropriate if the Court ) is presented with newly discovered evidence, ) committed clear error or the initial decision was manifestly unjust, or ) if there is an intervening change in controlling law. United States v. Alexander, 0 F.d, (th Cir. ); Sch. Dist. No. J, Multnomah Cnty., Or. v. ACandS, Inc., F.d, (th Cir. ). As discussed in the Court s Order Granting the Grower Defendants Joint Motion for Attorney s Fees as Prevailing Parties under Title VII, ECF No., the EEOC s joint employer theory of liability against the Grower Defendants was 0 unfounded. There is support in case law for the theory of jointemployer liability, see Order Ruling on the EEOC s Motions to Compel Discovery Responses from the Grower Defendants, ECF No. 0 at - (citing cases). However, based on the facts known by the EEOC at the time it filed this lawsuit (and learned by the EEOC during this lawsuit), it should have reasonably known that the information it possessed as a result of its sparse administrative investigation did ORDER -

4 Case :-cv-00-efs Document Filed 0// 0 0 not support a Title VII claim based on the joint-employer theory of liability against the Grower Defendants, nor the requested relief. The Grower Defendants request attorney s fees and costs over one million dollars a very significant amount. The EEOC contends that an award of attorney s fees and costs of such an amount will discourage the EEOC or private parties from pursuing Title VII actions. But Congress has permitted an award of attorney s fees to a prevailing defendant if the lawsuit was unfounded, frivolous, or brought in bad faith. As indicated above and in the prior Order allowing the Grower Defendants to seek reasonable attorney s fees and costs in this lawsuit, the EEOC s lawsuit against the Grower Defendants was unfounded and frivolous. The aim of the award of attorney s fees and costs to the Grower Defendants is not to discourage Title VII lawsuits but rather, as Congress permits, to discourage the filing of groundless and frivolous Title VII lawsuits lawsuits which place a significant burden on the employer, both of time and expense, to defend against the serious Title VII charges. In summary, the EEOC has not presented the Court with newly discovered evidence, highlighted a clear error or manifestly unjust ruling, or an intervening change of law. Accordingly, the Court abides by its decision that the Grower Defendants are to be awarded their reasonable attorney s fees and costs as prevailing parties in this lawsuit under 000e-(k). The Court now turns to address the EEOC s specific objections to the requested attorney s fees. A two-step process is used to calculate a reasonable attorney s fee. Blum v. Stenson, U.S., (). The Court first calculates the lodestar. The lodestar is calculated ORDER -

5 Case :-cv-00-efs Document Filed 0// 0 by multiplying the number of hours reasonably expended by the reasonable hourly rate for such tasks. Moreno v. City of Sacramento, F.d 0, (th Cir. 00); Morales v. City of San Rafael, F.d, (th Cir. ). Although there is a strong presumption that the lodestar achieves a reasonable attorney s fee, the second step requires the Court to consider whether either an upward or a downward adjustment is appropriate after considering the totality of the circumstances. Perdue v. Kenny A. ex rel. Winn, U.S., (00). Ultimately, a reasonable fee is one that is sufficient to induce a capable attorney to undertake the representation of the lawsuit, id., and which reflects the level of success achieved by the prevailing party, A.D. v. Cal. Hwy. Patrol, F.d, 0 (th Cir. 0). The determination of the attorney s fee award is within the district court=s sound discretion but the court must explain how it came up with the amount. Carter v. Caleb Brett LLC, F.d, (th Cir. 0) (citing Hensley v. Eckerhart, U.S., ()). The court has an independent obligation to ensure that the requested attorney s fees and costs are reasonable. In re Bluetooth Headset Prods. 0 Liability Litig., F.d, (th Cir. 0). The court s explanation need not be elaborate, but it must be comprehensible... Where the difference between the lawyer s request and the court s award is relatively small, a somewhat cursory explanation will suffice. But where the disparity is larger, a more specific articulation of the court s reasoning is expected. Carter, F.d at (quoting ORDER -

6 Case :-cv-00-efs Document Filed 0// Moreno, F.d at ). With these requirements in mind, the Court begins the lodestar analysis.. Hours The EEOC objects to the Grower Defendants requested hours on a number of bases: ) the requested hours are supported merely by hearsay and unsigned declarations, ) the hours incurred by out-of-district counsel were unnecessary, ) the hours incurred prior to the filing of the Complaint should be denied, and ) Olivia Gonzalez s hours should 0 be reduced by percent given her limited experience. addresses each objection. The Court 0 First, the EEOC highlights that many of the declarations filed by counsel and law firm staff retained by the Grower Defendants were not personally signed by these individuals but rather the declarations were electronically signed on behalf of these individuals individuals who are not counsel of record and therefore not permitted through the Court s electronic filing system to electronically sign documents. In reply, the Grower Defendants filed personally signed declarations for many of these individuals: Andre Penalver, Aviva Kamm, Theresa Wang, Lori Busby, Mort Brinchmann, Nathaniel Vigil, Wendy Howard, Nicholas Clements, and Curtis Graham. ECF Nos. -. The Court accepts these personally signed declarations. See Fed. R. Civ. P. (a) (permitting court to accept unsigned papers that are promptly corrected when the error is brought to the filing party s attention). Therefore, the EEOC s hearsay objection is denied in this regard. Also in reply, the Grower Defendants filed declarations from Beth Joffe (attorney) and Shelley Juskiewicz (paralegal) in which they ORDER -

7 Case :-cv-00-efs Document Filed 0// 0 personally attest that the listed incurred hours were true and correct. ECF Nos. &. Accordingly, the EEOC s arguments that these hours were not attested to as being true and correct by the individuals performing the claimed work is now moot as to these individuals. The Grower Defendants did not file a declaration for Stokes Lawrence attorney SLW, who is listed on the Stokes Lawrence attorney chart, ECF No. at. Nonetheless, upon a review of the Stokes Lawrence time chart, id. Ex. A, there are no time entries for SLW, or any listings charged at an hourly rate of $, which was the hourly rate listed for SLW on the attorney chart. Accordingly, the Court has no basis to reduce the hours listed in the Stokes Lawrence time chart on this basis. The EEOC s lack-of-evidentiary-basis argument continues as to the hours expended by many of the Seyfarth Shaw attorneys and paralegals. Three Seyfarth Shaw attorneys filed declarations attesting to the truth and accuracy of their incurred time as listed on the Seyfarth Shaw time chart, see DeGroff Decl., ECF No. 0; Maatman Decl., ECF No. ; Maechtlen Decl., ECF No.. However, the other attorneys and 0 paralegals listed on the Seyfarth Shaw time chart, ECF No. 0 at & Ex. A, Brian Heffern, Kimberly Brenner, Niousha Rahbar, Robb McFadden, and Robert Wong, did not file separate declarations attesting to the truth and accuracy of the hours attributed to them. The Court anticipates that declarations were not obtained from these individuals Seyfarth Shaw utilizes the phrase case assistant. For consistency purposes, the Court utilizes the term paralegal instead. ORDER -

8 Case :-cv-00-efs Document Filed 0// 0 0 because they no longer work at Seyfarth Shaw, as so indicated in Mr. DeGroff s declaration. Id. The departure of individuals from a law firm poses an evidentiary difficulty for the law firm when it later files a motion for attorney fees seeking an award of hours incurred by such an individual. As the party seeking attorney s fees, the Grower Defendants have the burden to provide evidence supporting the claimed hours and the rates. See Hensley, U.S. at. Consistent with what the Grower Defendants filed as to the majority of its retained counsel and paralegals, this evidentiary requirement is satisfied by the filing of personal declarations by the attorneys and paralegals performing the identified work for which fees are sought. Yet, for the individuals who are no longer employed at Seyfarth Shaw, the Grower Defendants seek to provide an evidentiary basis for those individuals hours through Mr. DeGroff s declaration. Mr. DeGroff declares, in pertinent part, I supervised all work performed by Seyfarth Shaw LLP personnel in this lawsuit and the listed hours reflect actual time devoted to particular client matters and reflect the invoices sent to the Grower Defendants for the time incurred. ECF No This poses a hearsay concern: Mr. DeGroff is testifying to the truth and accuracy of the hours incurred by others at Seyfarth Shaw. See Fed. R. Evid. 0(c) (Hearsay is a statement that ) the declarant does not make while testifying at the current trial or hearing, and ) a party offers in evidence to prove the truth of the matter asserted in the statement. ). Because Mr. DeGroff supervised the work performed by the Seyfarth Shaw attorneys and paralegals, the Court finds he is ORDER -

9 Case :-cv-00-efs Document Filed 0// 0 0 able to attest to whether the listed hours were actual time devoted by the others in Seyfarth Shaw to this action. Furthermore, Mr. DeGroff attested to the accuracy of the firm s timekeeping system and knew that the chart reflected time that was invoiced to the Grower Defendants in this matter. See Fed. R. Evid. 0() (business records). Based on Mr. DeGroff s declared knowledge of his law firm s work, recordkeeping, and billing for purposes of this action, the Court finds there is an evidentiary basis to award hours for those Seyfarth Shaw personnel who are no longer employed at that firm and did not file a personal declaration in support of this motion for attorney s fees. Cf. Muniz v. UPS, Inc., F.d, - (th Cir. 0) (discussing the hearsay concerns with counsel s declaration which was interpreted as declaring that his paralegal provided him with her incurred-hours information to insert into his declaration in support of the client s attorney-fee motion); Blackmore v. Misner, No. :0-CV-, 00 WL 00, * (W.D. Mich. Oct. 0, 00) (noting the plaintiff s failure to file any supporting documentation for five of its attorneys for whom it was seeking an award of attorney s fees). Accordingly, the EEOC s hearsay objection is denied as to the Seyfarth Shaw hours. Next, the EEOC argues that utilizing the services of out-ofdistrict firms, Seyfarth Shaw and Freeman Freeman & Smiley, was unnecessary. This was a challenging and complicated case for the parties and the Court. The Court permits the Grower Defendants to recover reasonably incurred hours by Seyfarth Shaw, which was retained to assist the Grower Defendants with the complicated motion to dismiss. Similar dismissal arguments were presented in the lawsuit against ORDER -

10 Case :-cv-00-efs Document Filed 0// Global Horizons, a co-defendant in this lawsuit, and other agricultural entities in a U.S. District Court lawsuit in Hawaii, EEOC v. Global Horizons, Inc., Civil Action No. -00 LEK-RLP. Seyfarth Shaw was involved in that litigation and knowledgeable about the EEOC s position and arguments in that lawsuit, which were similar to those taken by the EEOC in this lawsuit. Therefore, Seyfarth Shaw s knowledge and 0 0 experience were helpful to the Grower Defendants defense, and the Court permits recovery of reasonable attorney fees charged by Seyfarth Shaw to the Grower Defendants for its work in this lawsuit. The Court also finds the Grower Defendants retention of California counsel, Freeman Freeman & Smiley, to assist with addressing the EEOC s challenge to a subpoena served on the Thai Community Development Center by the Grower Defendants was reasonable. Therefore, the Court permits the Grower Defendants to recover those hours that were reasonably incurred by Freeman Freeman & Smiley. Thus, the EEOC s objection to the use of out-of-state counsel is denied. The EEOC also contends attorney-fee hours should not be awarded for work done prior to the Complaint s filing, citing to U.S.C. 000e-(k), the statute upon which the Court found an award of reasonable attorney s fees and costs appropriate. The Grower Defendants respond that the fees incurred during the pre-suit Title VII investigation and/or conciliation process should be awarded under 000e-(k). Section 000e-(k) states, In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's ORDER - 0

11 Case :-cv-00-efs Document Filed 0// fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. U.S.C. 000e-(k). After a close reading of 000e- in its entirety, the Court concludes the answer lies between both parties positions. Section 000e-(k) broadly applies to any action or proceeding under this subchapter. Unlike subsection (j), it is not 0 limited to civil action[s]. Id. 000e-(j). Subsections (b) and (d) use action to discuss conduct by the EEOC after the filing of the charge of discrimination. Id. 000e-(b) & (d). Based on the use of action in 000e-, the Court determines that any fees incurred following the EEOC s August, 00 letters of determination advising that it was taking action on the Title VII charges of discrimination may be awarded to the Grower Defendants, if the specific charges are deemed appropriate by the Court. These August, 00 letters of determination mark the beginning of the action... under this subchapter for purposes of an award of attorney s fees under 000e-(k). Accordingly, the Court will not award any of the incurred hours prior to the August, 00 letters of determination, which totals $.0. In this regard, the EEOC s 0 objection to pre-lawsuit hours is granted in part and denied in part. The EEOC also asks the Court to reduce counsel Olivia Gonzalez s hours by percent because the Grower Defendants previously agreed that such a reduction to Ms. Gonzalez s hours was appropriate, given Ms. Gonzalez s limited experience, in connection with an attorney-fee motion pertaining to a discovery dispute, see ECF No. at. After reviewing the detailed listing of the incurred hours by the Stokes ORDER -

12 Case :-cv-00-efs Document Filed 0// 0 0 Lawrence law firm from September 0, 00, through August, 0, see ECF No. Ex. A, the Court declines to reduce Ms. Gonzalez s hours by percent. The detailed entries permit the Court to assess the reasonableness of the amount of time spent on each task; therefore, the Court is able to conduct an hour-by-hour analysis and can reduce only those hours that are unnecessary, duplicative, or otherwise unreasonable, rather than use a percentage cut. See Ferland v. Conrad Credit Corp., F.d, (th Cir. 00) (recognizing the court s ability to reduce an attorney s hours because of the attorney s inefficiency in prioritizing time or inexperience). Further, the Court notes that when the Grower Defendants filed their Joint Motion for Attorney Fees Pursuant to the Court s // Oral Ruling, ECF No., on March, 0, Ms. Gonzalez had been in practice for approximately four years; in the two years since that motion, Ms. Gonzalez gained more experience, especially in complicated employment litigation, such as this lawsuit. For these reasons, the Court denies the EEOC s request to reduce Ms. Gonzalez s hours by percent. The Court closely reviewed the time charts, especially in light of the EEOC s concern that the Grower Defendants overstaffed this lawsuit by having multiple attorneys in the Stokes Lawrence and the out-of-state law firms work on this case. The Court also recognizes that sometimes the vicissitudes of the litigation process will require lawyers to duplicate tasks. Costa v. Comm r of Soc. Sec. Admin., 0 F.d, (th Cir. 0) (quoting Moreno v. City of Sacramento, F.d 0, (th Cir. 00)). After conducting a comprehensive review of the time charts, ECF Nos. Ex. A (Stokes ORDER -

13 Case :-cv-00-efs Document Filed 0// 0 0 Lawrence), 0 Ex. A (Seyfarth Shaw), & Ex. A (Freeman Freeman & Smiley), the Court finds the vast majority of these hours, including Ms. Gonzalez s hours and the out-of-state law firm hours, were reasonable and necessary. See Moreno, F.d at ( By and large, the court should defer to the winning lawyer s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. ). This was a very document intensive case, spanning many years. The lawsuit was filed in 0, with the key events occurring more than six years earlier. Obtaining, organizing, and reviewing discovery was a difficult challenge for Grower Defendants counsel, and required them to spend time strategizing how to best defend this lawsuit. Added to these complexities was the fact that the H-A guest workers were from Thailand, predominantly did not speak English, and no longer lived locally, as many returned to Thailand or moved to another state. Also, it took the EEOC over three years following the lawsuit s filing to identify which Thai workers were claimants in this lawsuit thereby making it difficult for the Grower Defendants to understand the scope of needed discovery and to organize the discovery accordingly. Added to these logistical discovery challenges was the fact that the EEOC pursued a myriad of Title VII claims against the Grower Defendants with very significant damage demands. This lawsuit involved a number of motions, ranging from motions to dismiss, motions to stay, motions to intervene by the U.S. Department of Justice, discovery motions, motions for sanctions, and summary-judgment motions. Under these circumstances, the Grower Defendants reasonably required the assistance ORDER -

14 Case :-cv-00-efs Document Filed 0// of a number of attorneys, who necessarily spent time conferring with one another and the Grower Defendants to determine the best strategic defense. Accordingly, although the hours, and resulting attorney s 0 0 fees when totaled, are massive, the Court finds the requested attorney s fees are largely reasonable. The Court lists those hours it will not award, and the reason for not awarding them: Attorney Date Unawarded Hours Requested Rate Resulting Reduction Reason for Not Awarding B. Monahan /0/. $ $.0 Media response is unnecessary B. Monahan //. $ $ Unnecessary B. Monahan //. $ $.0 Unnecessary B. Monahan //. $ $ FBI inspection irrelevant B. Monahan //. $ $.0 Irrelevant B. Monahan //. $00 $0 Irrelevant J. Gonzalez //. $0 $0 Duplicative B. Joffe // $ $,0 Duplicative B. Joffe /0/ $ $0 Duplicative B. Joffe 0// $ $ Unnecessary B. Joffe // $ $ Excessive O. Gonzalez //. $0 $ Duplicative J. Gonzalez // $0 $0 Duplicative B. Joffe // $ $ Excessive B. Monahan //. $ $.0 Duplicative B. Joffe // $00 $00 Excessive B. Monahan /0/. $ $ Excessive O. Gonzalez // $0 $0 Excessive B. Joffe /0/ $00 $00 Duplicative J. Gonzalez //. $00 $0 Excessive As mentioned above, the Court is also not awarding any pre-august, 00 hours, totaling $.0. ORDER -

15 Case :-cv-00-efs Document Filed 0// 0 0 J. Gonzalez //. $00 $0 Unnecessary B. Monahan //. $ $ Unnecessary B. Monahan /0/. $ $ Unnecessary B. Joffe //. $00 $0 Unnecessary B. Monahan //. $ $ Unnecessary B. Monahan /0/. $ $.0 Unnecessary. Hourly Rate Total Reductions $,.0 The second step of the lodestar calculation is to determine whether the requested hourly attorney and paralegal rates are reasonable hourly rates. Initially, the Court notes that it has previously found the hourly rates charged by the Stokes Lawrence attorneys to be reasonable hourly rates; and the EEOC does not object to the hourly rates requested by Stokes Lawrence attorneys and paralegals in connection with this motion. ECF No. 0. Consistent with its prior finding, the Court s familiarity with rates charged in this District, and the EEOC s non-opposition to the Stokes Lawrence hourly rates, the Court finds the requested Stokes Lawrence hourly rates for its attorneys over the 00- time period as set forth in the Stokes Lawrence time chart, ECF No. Ex. A., to be reasonable. However, the evidence before the Court, and the Court s experience with paralegal rates charged in the District, does not support the requested hourly rate of $ for the paralegals during the entire 00- time period. Paralegal hourly rates that have been awarded in the District range from $0.00 in 00 in Rogers v. City of Kennewick, CV-0-0-EFS, and in 0 in Corter v. Groseclose, CV---EFS, to $ per hour in 0 in BKWSpokane, LLC v. FDIC, CV---TOR. The ORDER -

16 Case :-cv-00-efs Document Filed 0// 0 Court finds a $ hourly rate accurately reflects current paralegal rates but is too high for earlier years. Given the Court s familiarity with the rates charged for paralegals in this District, the Court awards the following paralegal hourly rates: 00-: $0.00; 0-: $00.00; 0: $.00. See Garcia-Goyco v. Law Env t Consultants, F.d, (st Cir. 00) (allowing the trial court to use its own knowledge and experience to assess a reasonable hourly attorney rate in that district). In this regard, the Grower Defendants motion is denied in part. The EEOC objects to the hourly rates charged by Seyfarth Shaw, contending that they are higher than those charged in the Eastern District of Washington. As indicated above, the Court finds it 0 appropriate for the Grower Defendants to have retained Seyfarth Shaw given the firm s experience defending Title VII lawsuits brought by the EEOC and, in particular, a Hawaii lawsuit involving co-defendant Global and the recruitment of H-A guest workers from Thailand. Yet, a remaining question is whether the hourly rates charged by Seyfarth Shaw are reasonable hourly rates. To determine a reasonable hourly rate, the Court looks to the prevailing market rate in the community in which the Court sits for similar work performed by attorneys of comparable skill, experience, and reputation. Chalmers v. City of Los Angeles, F.d 0, (th Cir. ), amended on other grounds, 0 F.d (th Cir.), (citing Blum, U.S. at -). And the requesting party must provide declarations or other evidence establishing that attorneys of ORDER -

17 Case :-cv-00-efs Document Filed 0// 0 0 comparable skill and experience charge such rates for similar services. Camacho v. Bridgeport Fin., F.d, 0 (th Cir. 00). In response to the EEOC s objection to Seyfarth Shaw s hourly rates, which well exceed those charged in this District, the Grower Defendants propose that hourly rates charged outside of the Court s District can be used if local counsel is unavailable due to either unwillingness or because the necessary degree of expertise is lacking in the local community. See Gates v. Deukmejian, F.d, 0 (th Cir. ). In support of the Seyfarth Shaw hourly rates, the Grower Defendants filed declarations from ) Christopher DeGroff, a partner at Seyfarth Shaw who oversaw the Grower Defendants legal work done by his firm, ECF No. 0, ) Seyfarth Shaw partners Gerald Maatman and Laura Maechtlen, ECF Nos. &, and ) Seyfarth Shaw associates Courtney Bohl and Nicholas Clements, ECF Nos. & 0. None of these declarations state whether the hourly rate charged was the prevailing market rate for an attorney of comparable skill, experience, and reputation within the community where the particular attorney worked. And no declarations were provided by other counsel working in the same legal community as those attorneys in order to attest to the reasonableness of the charged rate. See Blum, U.S. at n. (requiring production of satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those in the prevailing community."); United Steelworkers of Am. v. Phelps Dodge Corp., F.d 0, 0 (th Cir. 0) ( Affidavits of the plaintiffs attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly ORDER -

18 Case :-cv-00-efs Document Filed 0// 0 those setting a rate for the plaintiffs attorney, are satisfactory evidence of the prevailing market rate. ). Even though it was reasonable for the Grower Defendants to retain Seyfarth Shaw to help defend this lawsuit, the Court is unable to determine based on the evidence before it whether Seyfarth Shaw s attorney and paralegal hourly rates are reasonable rates for those legal communities. The Court provides the Grower Defendants an opportunity to supplement its fee request with declarations establishing the hourly rate in those legal communities for lawyers of comparable experience and reputation; these declarations are to be filed by October, 0. If those declarations are not filed by that date, the Court will utilize Eastern District of Washington hourly rates for attorneys and paralegals engaging in similar work during those years (0-), rates that are lower than those charged by the Seyfarth Shaw firm. If so, the awarded hourly rates for the Seyfarth 0 Shaw attorneys and paralegals during the relevant time periods they worked on this lawsuit would be as follows: Courtney Bohl (associate): 0, $0; Kimberly Brenner (associate): 0, $00; Nicholas Clements (associate): 0, $0; Chris DeGroff (partner): 0-, $; Brian Heffern (paralegal): 0, $0; Gerald Maatman (partner): 0, $; Laura Maechtlen (partner): 0, $00; Robb McFadden (associate): 0-, $00; ORDER -

19 Case :-cv-00-efs Document Filed 0// Niousha Rahbar (paralegal): 0, $0 ; and 0 0 Robert Wong (associate): 0, $00. The Grower Defendants request an hourly rate of $ for Curtis Graham, partner with Freeman Freeman & Smiley, the attorney who assisted the Stokes Lawrence firm with an issue that was before the U.S. District Court for the Central District of California, Case No. CV---DDP- JEM, arising from the Grower Defendants Rule subpoena served on the Thai Community Development Center. Given Mr. Graham s -year experience in state and federal court and scholarly teaching of business, business law, and critical thinking, the Court finds an hourly rate of $ for Mr. Graham s 0 work reasonable.. Lodestar At this time, given the Court s reductions to the hourly rates and hours, the Court is unable to complete the lodestar calculation without revised time charts. The Grower Defendants are to file a revised time chart for Stokes Lawrence utilizing the awarded hourly rates. This revised Stokes Lawrence time chart must highlight the hours not awarded by the Court and appropriately reduce those time entries. If declarations are not filed in relation to the Seyfarth Shaw hourly rates, the Grower Defendants are to file a revised time chart for Seyfarth Shaw utilizing the rates indicated as awarded by the Court; if declarations are filed, a revised time chart for Seyfarth Shaw need not be filed at this time. Following submission of the revised time charts (and declarations), the Court will complete its lodestar Ms. Rahbar s charged hourly rate was $0. ECF No. 0 Ex. A at. ORDER -

20 Case :-cv-00-efs Document Filed 0// 0 0 calculation and determine whether the lodestar results in a reasonable fee. See Perdue v. Kenny A. ex rel. Winn, U.S., (00); A.D. v. Cal. Hwy. Patrol, F.d, 0 (th Cir. 0). Accordingly, the Grower Defendants attorney-fees motion is held in abeyance in part.. Costs Pursuant to Local Rule. and U.S.C. 0, the Clerk of Court prepared its Taxation of Costs, ECF No.. The Grower Defendants submit that Title VII provides for an award of costs beyond those costs taxable under 0, such as costs which are normally charged to a fee-paying client in the course of providing legal services. The Grower Defendants base their argument on the broad language of 000e-(k) s language, which is worth repeating here: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. Id. 000e- (k). The Ninth Circuit in Grover v. Wells Fargo Financial California recognized that Title VII permits the prevailing party to recover costs beyond those taxable under 0. 0 F.d, (th Cir. 00) (quoting Davis v. City & Cty. of San Francisco, F.d, (th Cir. ) (expense-shifting under Title VII)), vacated in part on other grounds, F.d (th Cir. ). The Ninth Circuit has found the following expenses are typically recoverable non-taxable costs: attorney travel, Davis v. Mason Cty., F.d, (th ORDER - 0

21 Case :-cv-00-efs Document Filed 0// Cir. ), and attorney hotel bills, Harris v. Marhoefer, F.d, -0 (th Cir. ), in connection with out-of-town depositions, hearings, or trial. See also Potter v. Blue Cross Blue Shield of 0 0 Mich., 0 F. Supp. d, (E.D. Mich. 0) (allowing recovery of telephone, postage, facsimile and travel costs but not meals and press releases). Pursuant to 000e-(k) s broad language and Grover, the Court finds the Grower Defendants may recover non-taxable costs, in addition to the taxable costs recoverable under U.S.C. 0, so long as they are costs that would be normally charged to a fee-paying client in the District. In lieu of detailing the entire scope of awardable non-taxable costs at this time, the Court determines the best course is to permit the parties to file objections to the Clerk of Court s Taxation of 0 Costs, ECF No., as permitted by Local Rule.(c). Once the 0 taxable costs have been finalized, the Court will settle what remaining non-taxable costs are recoverable by the Grower Defendants under Title VII. B. Conclusion For the above-given reasons, IT IS HEREBY ORDERED:. The Grower Defendants Joint Motion for an Award of Attorney s Fees and Costs, ECF No., is GRANTED IN PART, DENIED IN PART, and HELD IN ABEYANCE IN PART (pending receipt of the below-required supplement and the Local Rule.(c) taxable-costs process).. No later than October, 0, the Grower Defendants shall file a revised time chart for the Stokes Lawrence law firm, ORDER -

22 Case :-cv-00-efs Document Filed 0// 0 utilizing the awarded hourly rates and adjusting for the unawarded hours. As to the Seyfarth Shaw law firm, the Grower Defendants are to file either supporting declarations or a revised time chart. If revised time charts are filed for both firms, the Grower Defendants shall calculate the lodestar based on these adjustments, and omit the pre-august, 00 hours. The EEOC may file a response to these supplements within one week of their filing. IT IS SO ORDERED. The Clerk s Office is directed to enter this Order and provide copies to counsel. DATED this th day of September 0. s/edward F. Shea EDWARD F. SHEA Senior United States District Judge 0 Q:\EFS\Civil\0\0.grower.def.atty.fees.prev.party.lc.docx ORDER -