CA Open Lands v. Butte County Dept. of Public Works

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CALIFORNIA OPEN LANDS, No. 2:20-CV-0123-KJM-DMC 12 Plaintiff, 13 v. ORDER BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, et al., Defendants.

18 Plaintiff, who is proceeding with retained counsel, brings this civil action. On October 27, 2021, the Court granted Plaintiff’s motion to compel a wet weather site inspection pursuant to Federal Rule of Civil Procedure 34. See ECF No. 31. Because Plaintiff was the prevailing party, it is entitled to reasonable expenses pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Plaintiff’s counsel was directed to submit a declaration in support of an award of reasonable expenses within seven days of the October 27, 2021, order, and Defendants were permitted until seven days after the date of Plaintiff’s filing to submit a response. See id. The parties have timely submitted supporting and responsive declarations on November 2, 2021, and November 9, 2021, respectively. See ECF Nos. 32 and 33.

27 / / / / / / 1 In Plaintiff’s counsel’s declaration, counsel seeks reasonable expenses representing attorney’s fees in the amount of $10,140.00 associated with Plaintiff’s motion to compel. See ECF No. 32. Fees are calculated for a total of lead attorney time at a rate of $825.00 per hour and associate attorney time at a rate of $400.00 per hour. See id. Counsel states that lead counsel has 28 years of experience and that associate counsel has six years of experience.

6 See id. Counsel has filed a billing summary reflecting a total of 17.7 hours expended between lead and associate counsel. See id. at 5. Plaintiff is represented by the Law Offices of Andrew L.

8 Packard, of Petaluma, California.

9 In their response, Defendants object to “out-of-forum attorney fee rates” sought by Plaintiff’s counsel. See ECF No. 33. According to Defendants: 11 . . . That request for “out-of-forum attorney fee rates” is based on Plaintiff’s purported attempts to “retain local counsel in Butte County but 12 was unable to do so.” (Packard Declaration, ¶5.) However, the forum in this case is the Eastern District of California, which is based in 13 Sacramento. “The reasonable hourly rate is ‘calculated according to the prevailing market rates in the relevant legal community, and the general 14 rule is that the rates of attorneys practicing in the forum district, here the Eastern District of California-Sacramento, are used.’” Cal. Sportfishing 15 Prot. Alliance v. Chico Scrap Metal, Inc., 2016 U.S. Dist. LEXIS 2511 at *3-4 (E.D. Cal. 2016) (citing Gates v. Deukmejian, 987 F.2d 1392, 1405 16 (9th Cir. 1992).

17 Id. at 2.

18 Defendants state the prevailing rate in the Eastern District of California is $430.00 per hour. See id. at 3 (citing defense counsel’s own hourly rate). Defendants contend Plaintiff is not entitled to out-of-forum rates because Plaintiff has not presented any evidence that local counsel in Sacramento, California, was unavailable. See id. at 2. Defendants also argue that Plaintiff has failed to provide any evidence that the requested rate is justified based on Plaintiff’s counsel’s level of experience, skill, and reputation. See id. Finally, Defendants state the prevailing rate in the Eastern District of California is $430.00 per hour. See id. at 3 (citing defense counsel’s own hourly rate). Defendants do not contest the number of hours claimed.

26 / / / / / / / / / 1 The Court does not agree that Plaintiff has failed to submit evidence of counsel’s | experience, skill, and reputation. The Court does agree, however, that Plaintiff has not provided | evidence that Sacramento counsel was unavailable. Thus, Plaintiff is entitled to expenses at the | prevailing hourly rate for attorneys in Sacramento, which is the forum community for this case.

5 “An award of attorney’s fees is calculated using the ‘lodestar method,’ whereby || the number of hours reasonably expended on litigation is multiplied by a reasonable hourly rate.”

7 | Price Simms Holdings, LLC v. Candle3, LLC, 2021 WL 1884995, at *1 (E.D. Cal. May 11, | 2021) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Courts look to the forum district | in determining the reasonable hourly rate. See Tenorio v. Gallardo, 2019 WL 3842892, at *2 | (E.D. Cal. Aug. 15, 2019). In three cases in the last three years the Eastern District has found a | reasonable rate to be between $425.00 per hour and $450.00 per hour. See Colfaxnet, LLC v. | City of Colfax, 2020 WL 7024161, at *1 (E.D. Cal. Nov. 30, 2020) (approving a rate of $425.00 || per hour); see also Firstsource Sols. USA, LLC v. Tulare Reg’ Med. Ctr., 2019 WL 2725336, at | *8 (E.D. Cal. June 28, 2019) (approving a rate of $450.00 per hour for partners with at least 20 || years of experience); and see Price Simms Holdings, LLC, 2021 WL 1884995, at *1 (approving a | rate of $450.00 per hour for partners).

17 Based on the foregoing, the Court will allow the requested rate for associate | counsel of $400.00 per hour. Time for lead counsel, who has 28 years’ experience, will be | permitted at a rate of $450.00 per hour. Counsels’ time is outlined at ECF No. 32, pg. 5.

20 | Associate counsel spent 10.5 hours and lead counsel spent 7.2 hours on the motion to compel.

21 | Plaintiff will be awarded reasonable expenses in the total amount of $7,440.00, representing | $4,200.00 for associate counsel (10.5 hours at a rate of $400.00 per hour) plus $3,240.00 for lead | counsel (7.2 hours at a rate of $450.00 per hour).

24 Accordingly, IT IS HEREBY ORDERED that Defendants shall pay to Plaintiff | $7,440.00 in reasonable expenses within 30 days of the date of this order.

26 | Dated: January 31, 2022 Sx<o_- 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE