Metropolitan News-Enterprise


Tuesday, June 26, 2018


Page 3


Ninth Circuit:

Attorney Fees in Schedule Not Presumptively Reasonable

Successful Plaintiff in Civil Rights Action Is Entitled to Have a Judge Set Reasonable Fees Without Regard to a Local Schedule Applicable to Default Judgments, Majority Says


By a MetNews Staff Writer


A successful plaintiff in an action under the Americans With Disabilities Act who seeks attorney fees that exceed those in a schedule promulgated by the District Court for the Central District of California is entitled to have a judge set them, without using the schedule as the starting point, the Ninth U.S. Circuit Court of Appeals held yesterday.

Judge Susan P. Graber wrote the lead opinion, in which Judge Morgan Christen joined, adding thoughts of her own. Judge Andrew J. Kleinfeld dissented.

The majority’s opinion reverses a decision by District Court Judge S. James Otero of the Central District of California in awarding $600 in attorney fees, pursuant to a schedule set by Local Rule 55-3, to a plaintiff who had difficulty maneuvering his wheelchair at a shopping center, and sued. He received a default judgment, garnering $4,000 in statutory damages and $3,590.8, along with attorney fees, and the shopping center was ordered to make some structural changes.

Motion for Fees

The plaintiff, Martin Vogel, dissatisfied with the amount indicated by resort to the “Default  Judgment—Schedule of Attorneys’ Fees,” made a timely notion to have the amount set at $36,671.25. Otero declined to employ the lodestar method, viewing a fee awarded pursuant to the schedule as presumptively correct, and seeing no cause for modifying the amount in Vogel’s case.

Graber wrote:

“We read the local rule to require a different procedure. If a party seeks a fee “in excess of* the schedule and timely files a written request to have the fee fixed by the court, then the court must hear the request and award a “reasonable” fee. That process does not describe a “modification” of the schedule of fees. Rather, it prescribes an alternative process when a party invokes it in the proper way at the proper time. When a party invokes that process, the court is obliged to calculate a “reasonable” fee in the usual manner, without using the fee schedule as a starting point.”

Customary Method

The judge noted that use of the lodestar method—under which the number of hours of attorney time were reasonably expended is multiplied by a reasonable fee—is the customary means of determining a fee in civil rights cases.

She commented:

“By treating the fee schedule as presumptively reasonable, rather than using the lodestar approach to calculate a presumptively reasonable fee, the district court misinterpreted Local Rule 55-3 and abused its discretion. Furthermore, we think that the district court’s erroneous methodology may have affected the fee award—Plaintiff achieved practically all of the relief that he sought, ‘excellent results’ by any measure, but the court awarded him a tiny percentage of the requested fees.”

The matter was remanded to Otero.

Christen’s Opinion

Christen added that in her view, “the correct method for calculating fees in an ADA lawsuit ending in default judgment in the Central District of California should not hinge on whether a prevailing party opts out of the Central District’s local fee schedule,” and that the lodestar method should always be used.

Kleinfeld opined that “the district court properly used the local rule’s fee schedule for default judgments as the starting point and acted within its discretion to reject an increase.

He argued:

“Starting with the local rule’s fee schedule as the presumptive fee makes sense because the Supreme Court has said that starting with what other lawyers get is a good idea, and what other lawyers get in a default judgment case is typically the scheduled fee. Such a presumptive fee, subject to adjustment for reasonableness, is consistent with the ADA. the legal force of local rules, and the Supreme Court and this court’s precedents. Today’s decision, by failing to distinguish between substantially uncontested default judgments and contested cases, doubtless will generate considerable abuse.”

The case is Vogel v. Harbor Plaza Center, LLC, No. 16-55229.


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