United States District Court, D. New Mexico
WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM and SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs,
TRI-STATE CAREFLIGHT, LLC, and BLAKE A. STAMPER, individually, Defendants.
Christopher M. Moody Repps D. Stanford Alice Kilborn Moody
& Warner, P.C. Albuquerque, New Mexico Attorneys for the
Charles J. Vigil Jeffrey L. Lowry Melanie B. Stambaugh Rodey,
Dickason, Sloan, Akin & Robb, P.A. Albuquerque, New
Mexico Attorneys for the Defendants.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the Plaintiffs
Keith Bastian, Jaqueline Fernandez-Quezada, Cason N. Heard,
Gregory Oldham and Sherry K. Welch's Motion for Award of
Attorneys' Fees and Costs and Memorandum in Support,
filed December 8, 2016 (Doc. 152)(“First Fee
Motion”); and (ii) the Plaintiffs' Supplemental
Motion for Attorneys' Fees & Costs, filed March 29,
2017 (Doc. 160)(“Supp. Motion”). The Court held a
hearing on August 2, 2017. The primary issues are: (i)
whether to approve the Plaintiffs' counsel's proposed
fee rates, which are higher than the rates that the Court
used earlier in the case when calculating fees for the
attorneys' work for the Original Plaintiffs; (ii) whether to
reduce the total award, because the Plaintiffs did not
respond to an early settlement offer; (iii) whether time that
the Plaintiffs' counsel spent calculating damages and
communicating with clients is compensable; (iv) whether to
reduce one paralegal's fees because her time entries are
block billed; and (iv) whether certain costs are compensable,
such as travel, ordering transcripts, and using LexisNexis.
The Court will award fees as the Motion requests, but will
reduce the award by: (i) applying a lower attorneys' fee
rate than the Plaintiffs' counsel requested; (ii)
lowering the paralegal fees by $2, 500.00; and (iii) not
awarding costs for LexisNexis. The Court will also adjust the
total award request by applying the current gross receipts
tax rate. Accordingly, the Court will grant in part and deny
in part the Plaintiffs' First Fee Motion and Supp.
Motion, and award fees and costs in the amount of $182,
867.16 ($170, 108.99 in fees and costs, and $12, 758.17 in
Tri-State Careflight, LLC operates a medical transport
service providing services in New Mexico, Arizona, and
Colorado. See Second Amended Complaint
Representative and Class Action Complaint for Damages for
Violations of New Mexico Minimum Wage Act and New Mexico
Common Law ¶ 11, at 2, filed January 28, 2016 (Doc.
100)(“Second Complaint”). Tri-State CareFlight
operates a fleet of aircraft that it staffs with pilots and
trained medical personnel. See Second Complaint
¶ 9, at 3. Tri-State Careflight employs or employed
Plaintiff Keith Bastian as a flight paramedic; Plaintiffs
Jaqueline Fernandez-Quezada and Sherry K. Welch as flight
nurses; and Plaintiffs Cason N. Heard and Gregory Oldham as
pilots. See First Fee Motion at 2-3; Errata Sheet to
Opposed Motion to Intervene as Parties Plaintiff and Class
Representatives at 1, filed January 4, 2016 (Doc. 84).
case is a wage-and-hour dispute. See Second
Complaint ¶ 1, at 1. The Plaintiffs seek recovery of:
(i) unpaid overtime compensation under the New Mexico Minimum
Wage Act (“NMMWA”); and (ii) other unpaid
compensation on a theory of unjust enrichment. See
Second Complaint ¶¶ 95-128, at 12-18.
Original Plaintiffs, William D. Payne and Nicole Payne, filed
their case in state court on September 11, 2014. See
Payne v. Tri-State Careflight, LLC, D-101-CV-2014-02048,
1st Jud. Dist. Ct., Cty. of Santa Fe, State of N.M., filed
September 11, 2014 (Montes, J.). Tri-State CareFlight and
Stamper removed the case to federal court on November 17,
2014. See Notice of Removal, filed November 17, 2014
(Doc. 1)(“Notice of Removal”). The Defendants
invoked the Court's diversity jurisdiction, representing
that there is complete diversity of citizenship between the
Plaintiffs and the Defendants. See Notice of Removal
¶ 4, at 2.
August 24, 2015, W. Payne and N. Payne moved to amend their
complaint to: (i) eliminate a claim asserted for compensation
for certain travel time; and (ii) add an additional Plaintiff
-- Plaintiff Leslie B. Benson. See Plaintiffs'
Amended Opposed Motion for Leave to File First Amended
Complaint, filed August 24, 2015 (Doc. 44)(“First
Motion to Amend”). On September 4, 2015, W. Payne and
N. Payne filed Plaintiffs' Motion for and Brief in
Support of Class Certification, filed September 4, 2015 (Doc.
48)(“First Motion for Class
Cert.”). The Court held a hearing on the First
Motion to Amend on October 28, 2015. See Clerk's
Minutes, filed October 28, 2015 (Doc. 67)(“Oct. 28th
Clerk's Minutes”); Notice of Motion Hearing, filed
October 16, 2015 (Doc. 64). At the October 28, 2015 hearing,
the Court granted the First Motion to Amend. See
Oct. 28th Clerk's Minutes at 1; Order at 1, filed March
14, 2016 (Doc. 112). The same day as the hearing, W. Payne
and N. Payne filed their Amended Complaint, in which W.
Payne, N. Payne, and Benson asserted one count against the
Defendants for their violation of the NMMWA. See
Amended Complaint ¶¶ 9-36, at 1-5.
November, 2015, W. Payne, N. Payne, and Benson each reached
resolutions on their respective claims. See
Memorandum Opinion and Order at 47, filed August 12, 2016
(Doc. 138) (“Intervenor MOO”). The Paynes reached
a settlement with the Defendants on November 19, 2015 in
which the Defendants agreed to provide them with full relief
under the NMMWA. See Intervenor MOO at 47. Benson,
meanwhile, signed a global release in an administrative
proceeding before the Occupational Safety and Health
Administration (“OSHA”) on or around November 19,
2015. See Intervenor MOO at 42.
December, 2015, the Plaintiffs filed Plaintiffs David and
Nicole Payne's Opposed Motion for Award of Attorneys'
Fees and Costs and Memorandum In Support, filed December 10,
2015 (Doc. 72)(“Paynes Fees Motion”). The
Plaintiffs asserted that the settlement agreements between
the Paynes and the Defendants provides that the Defendants
would pay the Paynes' reasonable attorney's fees and
costs. See Paynes Fees Motion at 4. The parties
disputed whether reasonable attorneys' fees should
include fees or costs associated with: (i) work on class
certification, class communication, and other class-related
activities; and/or (ii) an unsuccessful legal claim.
See 2016 WL 5376321, at *1; Memorandum Opinion and
Order at 1, filed August 17, 2016 (Doc. 142)(“Paynes
Fees MOO”). The Court granted the Paynes Fees Motion
only in part, deciding: (i) to not award any fees for
class-related work, and (ii) to reduce the fee award for time
spent on an unsuccessful claim. See 2016 WL 5376321,
at *12-14; Paynes Fees MOO at 26-28. The Court also concluded
that a $350.00 per hour rate Mr. Moody and a $300.00 per hour
rate for Mr. Stanford were “reasonable for federal
court practice in the District of New Mexico, ” and
noted that “the Defendants do not object to the
[requested] hourly rates.” 2016 WL 5376321, at *13.
all of W. Payne, N. Payne, and Benson's claims resolved,
the Plaintiffs sought to replace them, by way of intervention
pursuant to rule 24 of the Federal Rules of Civil Procedure.
See Opposed Motion to Intervene as Parties Plaintiff
and Class Representatives, filed December 15, 2015 (Doc.
73)(“First Intervention Motion”). The Plaintiffs
[N]one of the currently named Plaintiffs will be able to
pursue this matter either individually or on behalf of the
putative class members who were deprived of overtime pay
pursuant to Defendants' uniform and unlawful overtime
policies applicable to flight nurses, flight paramedics and
pilots. Intervenors seek to pick up the prosecution of this
lawsuit where the current Plaintiffs are soon to depart.
Intervention Motion at 2.
motion to intervene was pending, the Defendants moved the
Court, pursuant to rule 56 of the Federal Rules of Civil
Procedure, to enter summary judgment in their favor and
dismiss all claims in the Second Amended Complaint in their
entirety and with prejudice. See Defendants
Tri-State Careflight, LLC, and Blake A. Samper's Motion
for Summary Judgment and Memorandum Brief in Support at 1,
filed March 1, 2016 (Doc. 110)(“MSJ”). The
Defendants argued that federal law preempts the
Plaintiffs' state law claim for the alleged NMMWA
violation and the state law claim for unjust enrichment.
See MSJ at 1. The Plaintiffs opposed the
Defendants' Motion for Summary Judgment and also filed
their Motion to Exclude Consideration of New Law or New
Argument Raised in Defendants' Reply to the Motion for
Summary Judgment or, in the Alternative, to Permit Plaintiff
to File a Surreply, filed on May 2, 2016 (Doc.
123)(“Motion to Exclude”), as a result of the
August 12, 2016, the Court, pursuant to rule 24(b) of the
Federal Rules of Civil Procedure, granted the Plaintiffs'
First Intervention Motion, permitting Bastian, Heard, Oldham,
Welch, and Fernandez-Quezada to intervene as Plaintiffs.
See Intervenor MOO at 1-2. The Court determined,
among other things, that the resolution of W. Payne, N.
Payne, and Benson's claims “did not render this
case moot under Article III because the personal stake of the
indivisible class may inhere prior to a definitive ruling on
class certification.” Intervenor MOO at 41 (citing
Lucero v. Bureau of Collection Recovery, Inc., 639
F.3d 1239, 1244-47 (10th Cir. 2011)).
March, 2016, the Defendants filed the Defendants Tri-State
Careflight, LLC, and Blake A. Stamper's Motion to Compel
Plaintiffs to Supplement their Rule 26 Initial Disclosures
and Answer Interrogatories and Respond to Requests for
Production, filed March 28, 2016 (Doc. 116)(“Motion to
Compel”). In their Motion to Compel, the Defendants
argued that the Court should direct the Plaintiffs to
“supplement their initial disclosures with a
computation of each category of damages claimed by the
Plaintiffs and the identification or production of the
documents and other material on which each computation is
based.” Motion to Compel at 1. The Plaintiffs responded
with their Plaintiffs' Response to Motion to Compel,
filed April 14, 2016 (Doc. 119)(“MTC Response”).
In their MTC Response, the Plaintiffs argued that it was not
necessary for the Plaintiffs to provide precise damage
amounts at that stage of discovery, because, pursuant to a
Joint Status Report and Provisional Discovery Plan, the first
discovery stage related only to class certification issues,
not liability, and damage amounts were not relevant to class
certification. See MTC Response at 2 (citing Joint
Status Report and Provisional Discovery Plan, filed February
10, 2015 (Doc. 13)). The Plaintiffs also asserted that the
Defendants wanted the damage amounts “so that they can
extend settlement offers to pick off and snipe one or more of
the Plaintiffs to avoid the inevitable impact of class
certification.” MTC Response at 2 n.1. The Court
granted the Motion to Compel in a hearing. See
Transcript of Hearing at 7:2-3 (taken August 12,
October, 2016, the Court denied the Defendants' MSJ,
concluding that Congress “has not preempted the field
of labor regulation for railroad and airline workers, and the
present dispute does not involve the interpretation of a
collective bargaining agreement.” 2016 WL 6396214, at
*1; Memorandum Opinion and Order at 2, filed October 25, 2016
(Doc. 147)(“MSJ MOO”). In the same ruling, the
Court also determined that the Defendants “raised a new
issue of law in their reply in support of their Motion for
Summary Judgment, to which the Plaintiffs may reply with a
surreply should they deem it appropriate.” 2016 WL
6396214, at *1; MSJ MOO at 2.
November 17, 2016, the Defendants informed the Court that all
five named Plaintiffs -- Bastian, Heard, Oldham, Welch, and
Fernandez-Quezada -- had accepted the Defendants' Offer
of Judgment pursuant to rule 68 of the Federal Rules of Civil
Procedure. See Notice of Acceptance of Rule 68 Offer
of Judgment, filed November 17, 2016 (Doc. 149)
(“Acceptance Notice”). In the agreement, the
Defendants agreed to pay attorneys' fees and costs
“actually and reasonably incurred . . . up to the date
of this offer.” Offer of Judgment, filed November 17,
2016 (Doc. 149-1). A few weeks later, the Plaintiffs sought a
judgment on attorneys' fees and costs. See First
Fee Motion at 1.
The Second Motion for Attorneys' Fees and
December, 2016, the Plaintiffs filed the First Fee Motion,
requesting $172, 231.50 in fees, $12, 594.43 in New Mexico
gross receipts tax on the fees, $1, 973.99 in costs, and
$144.35 in New Mexico gross receipts tax on the costs, for a
total of $186, 944.27. See First Fee Motion at 4.
The Plaintiffs also submitted a fee statement with time
entries. See Fees Interim Statement (dated November
21, 2016), filed December 8, 2016 (Doc. 152-2)(“Fee
Plaintiffs assert that (i) the Plaintiffs' counsel
Christopher M. Moody, accrued 117.3 hours at $375.00 per
hour; (ii) the Plaintiffs' counsel Repps D. Stanford
accrued 345 hours at $325.00 per hour; (iii) paralegal Anne
M. Chavez accrued 7.5 hours at $90.00 per hour; and (iv)
paralegal Chelsea Buldain accrued 171 hours at $90.00 per
hour. See First Fee Motion at 4-5. The Plaintiffs
also seek costs for court reporter charges associated with
depositions of the Plaintiffs, a “modest sum for Lexis
legal research costs, ” and travel expenses for Heard
to travel to New Mexico for a deposition at the Named
Defendants' request. First Fee Motion at 5.
Plaintiffs assert that the attorneys' rates are
appropriate in light of their experience, the case's
complexity, and the “excellent results obtained for the
Plaintiffs.” First Fee Motion at 5. Mr. Moody asserts,
in a separate declaration, that, in his experience,
“class action litigation counsel in this locality
frequently bill at rates anywhere from $350 to $450 or more
per hour.” Declaration of Christopher Moody ¶ 11,
at 3, dated December 8, 2016, filed December 8, 2016 (Doc.
152-1)(“Moody Decl.”). Mr. Moody also asserts
that he has “a number of clients that I charge $375 per
hour.” Moody Decl. ¶ 11, at 3. Mr. Stanford, in
his separate declaration, asserts that “$300.00 is the
current hourly rate that I charge on most new employment
matters for which the hourly rates are not otherwise set by
insurance coverage” and adds that his hourly rate for
class action suits is even higher. Declaration of Repps D.
Stanford ¶ 14, at 3, filed December 8, 2016 (Doc.
152-3)(“Stanford Decl.”). Mr. Stanford asserts
that, a recent class action lawsuit, a court approved his
requested fee rate of $300.00 per hour and added that
“[m]y involvement in the prosecution of this matter has
been even more substantial, thereby warranting a higher fee
rate here.” Stanford Decl. ¶ 15 at 4. Mr. Moody
also asserts that he reviewed the time records and removed
“all entries for work related to the class/collective
action aspects of this case.” Moody Decl. ¶ 13, at
The Defendants' Response to the Second Motion for
Attorneys' Fees and Costs.
Defendants filed their Response in Partial Opposition to
Plaintiffs Keith Bastian, Jaqueline Fernandez-Quezada, Cason
N. Heard, Gregory Oldham and Sherry K. Welch's Motion for
Award of Attorneys' Fees and Costs, filed January 5, 2017
(Doc. 157)(“Response”). The Defendants argue that
the Plaintiffs' overall fee “should be reduced by
20 percent because they failed to timely respond to
Defendants' settlement offer and refused to provide
computations of damages.” Response at 2. The Defendants
also make several specific objections to the Plaintiffs'
request. See Response at 2-3. First, the Defendants
argue that the Court should “disallow the unjustified
and unilateral increases in Plaintiffs' counsel's
hourly rates.” Response at 3. The Defendants assert
that the rates which the Court previously approved -- $350.00
hourly rate for Mr. Moody and $300.00 hourly rate for Mr.
Stanford, see 2016 WL 5376321, at *13; 2016 Fee MOO
at 27 -- were “on the very edge of reasonable, ”
but they did not object, Response at 4. Now, the Defendants
assert, the Plaintiffs' counsel “has since decided
to cross the threshold of unreasonableness by giving
themselves raises” -- requesting $375.00 an hour for
Mr. Moody and $325.00 an hour for Mr. Stanford, see
First Fee Motion at 4 -- despite “[n]othing in the
lawsuit or in the market justif[ying] such increases, ”
Response at 4.
the Defendants argue that the Court should disallow or
substantially reduce fees for the Plaintiffs' paralegals,
arguing that these paralegals “block-billed large
quantities of time for secretarial and administrative tasks
that are not true paralegal work and that no client would pay
for or accept.” Response at 5.
the Defendants argue that the Court should disallow time
spent on “retainer agreements” and “class
member contacts, ” because “securing new clients
and formalizing retainer agreements is not legal work for
which Defendants should be charged.” Response at 7.
Moreover, the Defendants argue that these entries are
block-billed, such that it is impossible to discern how much
time might be validly charged to the Defendants. See
Response at 7.
the Defendants argue that the Court should disallow time that
the Plaintiffs spent resisting the Defendants' request
for production of damages computations, a dispute which the
Plaintiffs ultimately lost. See Response at 8.
the Defendants argue that the Court should disallow
“excessive attorney time analyzing and calculating
damages” -- seventy hours -- that Mr. Moody and Mr.
Stanford accrued after the Court granted the Defendants'
Motion to Compel. The Defendants assert that, “[a]s
with the time spent resisting their discovery obligations, it
would be inequitable and unreasonable to provide a windfall
of fees for the time Plaintiffs' counsel spent complying
with a Court order that should have been unnecessary in the
first place.” Response at 10. Additionally, the
Defendants argue that there is no “legitimate
reason” why so much attorney time would be requiring
for calculating these numbers, given that (i) “putting
numbers into spreadsheets and performing calculations”
is clerical work, and (ii) the attorneys had already spent
considerable time calculating damages before the Court
granted the Defendants' Motion to Compel. Response at 10.
the Defendants contend that the Court should disallow time
spent on a brief that was never filed. See Response
at 10-11 (citing Fee Statement at 22 & 23).
the Defendants argue that the Court should disallow costs
that the D.N.M. LR-Civ. do not authorize. See
Response at 11 (citing D.N.M. LR-Civ. 54.2). The Defendants
contend that the Plaintiffs seek certain costs that
D.N.M.LR-Civ. 54.2 do not authorize, such as expenses that
are not taxable, e.g., Lexis Nexis research and
travel expenses. See Response at 11. The Defendants
also argue that the transcript costs for the Plaintiffs'
depositions taken by the Defendants is not taxable, because
they were not, as the rule D.N.M.LR-Civ. 54.2(b)(2) requires,
“reasonably necessary to the litigation.”
Response at 11 (quoting D.N.M. LR-Civ. 54.2(b)(2)).
and finally, the Defendants ask the Court to reduce the
Plaintiffs' fee award by twenty percent, because the
Plaintiffs, after rejecting the Defendants' early
settlement offer, did not make a counteroffer. See
Response at 12. The Defendants assert that courts may
consider a plaintiffs' rejection of a settlement offer
when determining the appropriateness of an attorneys'
fees award. See Response at 12 (citing Sheppard
v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1337 (4th
Cir. 1996)). The Defendants assert that the Plaintiffs'
“refusal to make a reasonable settlement demand
(indeed, a settlement demand at all), to provide damage
calculations, and to engage in settlement negotiations . . .
all unnecessarily delayed the resolution of this case.”
Response at 12-13.
the Defendants request that the Court reduce its overall
award by twenty-percent, apply the previously approved rates
for Plaintiffs' counsel, and not award fees for the
following specific entries:
1. 171.60 hours for Chelsea Buldain;
2. 7.50 hours for Anne M. Chavez;
3. 4.3 hours for Christopher Moody for “retainer
agreements” and class member contacts (.6 on
11/05/2015; 2.0 on 11/18/2015; 1.2 on 11/19/2015
(block-billed with other tasks); .5 on 12/03/2015
(block-billed with another task));
4. 26.9 hours for Repps Stanford for time spent resisting and
refusing to provide damages computations and briefing and
arguing motion to compel on that issue. (.5 on 3/21/2016; 4.2
on 3/23/2016; 3.5 on 4/11/2016; 6.7 on 4/13/2016; 8.20 on
4/14/2016; 3.8 on 7/12/2016);
5. 2.1 hours for Christopher Moody for time spent resisting
and refusing to provide damages computation and briefing
motion to compel on that issue. (.8 on 3/28/2016; .5 on
4/18/2016; .4 on 4/25/2016; .4 on 7/12/2016);
6. 61 hours for Repps Stanford for post-hearing time
7. 11.2 hours for Christopher Moody for post-hearing time
8. 11.1 hours for Repps Stanford for time spent on unfiled
“supplemental brief regarding FAA preemption.”
(3.6 on 10/07/2016; 2.9 on 10/11/2016; 4.6 on 10/24/2016);
9. All the “Expenses” set forth in the statement,
along with ...