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Laborers' International Union of North America v. Brand Energy Services LLC

October 25, 2010

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, PLAINTIFF,
v.
BRAND ENERGY SERVICES LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In the construction industry, work jurisdiction disputes require speedy arbitration due to the fact that many work projects are not long term. Forcing court litigation by refusing to comply with an arbitration award is, presumably, intended to be onerous. Refusing to comply with an arbitration award can have negative consequences, as here where the party who refused to comply with the arbitration award lost in court and is contractually obligated to pay the opposing party's fees and costs.

Seeking to confirm an arbitration award in its favor on a work jurisdiction dispute, Laborers' International Union of North America ("LIUNA") brought this suit against the unions whose members had been awarded the work: Pacific Northwest Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, Carpenters Local 1849, and Millwrights Local 1699 (collectively the "Carpenters").*fn1 On August 30, 2010, the Court granted LIUNA's Amended Petition to Confirm Arbitration [Dkt. # 3], confirmed the March 23, 2009 Arbitrator's Award, and granted LIUNA's request for attorneys' fees and costs. See Op. & Order [Dkt. ## 33 & 34]. All that remains is for the Court to determine the proper amount of attorneys' fees and costs.

I. FACTS

When LIUNA filed suit for enforcement of the arbitration award, the Carpenters filed a separate counter suit, Civil Case No. 09-1128, against LIUNA,*fn2 seeking a declaratory judgment that the Carpenters are not bound by the award. The Carpenters originally filed Case No. 09-1128 in the Western District of Washington, but the case was transferred here and consolidated with this one. The Court then stayed the consolidated cases pending a decision of the National Labor Relations Board ("NLRB") in a parallel case, Pacific Northwest Regional Council of Carpenters, 19-CD-499. On June 11, 2010, the NLRB issued its decision in that parallel case, finding that the NLRB did not have jurisdiction over the work dispute because all parties were bound by a Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (the "Plan"). See Notice [Dkt. # 26], Ex. A (June 11, 2010 NLRB Decision) at 6; Am. Pet. to Confirm Arbitration [Dkt. # 3], Ex. A (Plan). "In signing the Participation Agreement, Regional Carpenters was not merely acting as an agent for its locals, but rather obtained its own rights and obligations under that agreement. Accordingly, as a party to the Participation Agreement, Regional Carpenters is bound to the Agreement's requirement that the Plan be used to resolve jurisdictional disputes." NLRB Decision at 6.

The Plan Arbitrator previously had issued a decision that the Carpenters were improperly performing work that should have been assigned to LIUNA, and ordered Brand to assign the scaffolding work in question to LIUNA. See Am. Pet. [Dkt. #3], Ex. E (Mar. 23, 2009 Arbitrator's Award) ("Arbitrator's Award") at 20. Because the NLRB determined that the parties were bound by Plan arbitration and because the Arbitrator had decided the work jurisdiction dispute, this Court ordered the parties to show cause why the Arbitrator's Award should not be confirmed. In response, the Carpenters voluntarily dismissed their countersuit, Civil Case No. 09-1128, and filed notice that they did not oppose the enforcement of the Arbitrator's Award. See Voluntary Dismissal [Dkt. # 28]; Notice of Non-Opposition [Dkt. # 27]. Thus, the Court granted LIUNA's Amended Petition to Enforce Arbitration as conceded. See Op. & Order [Dkt. ## 33 & 34].

The Court also granted LIUNA's request for attorneys' fees and cost, pursuant to the Plan. The Plan provides, "[a] party seeking enforcement of an Arbitrator's decision . . . due to the failure of another party to abide by the decision . . . shall be reimbursed by the party failing to abide by the decision . . . for any attorneys' fees, court costs, and expenses incurred." Plan, Art. VII § 2(c). Under the Plan, because LIUNA sought (and won) enforcement of the Arbitrator's Award due to the failure of the Carpenters to abide by the Award, the Carpenters are required to reimburse LIUNA for attorneys' fees and costs for this enforcement action.

LIUNA submitted a Declaration of Fees and Costs seeking reimbursement from the Carpenters for legal services rendered by LIUNA's counsel, Guerrieri, Clayman, Bartos, and Parcelli, P.C. ("GCBP"), and its local counsel in the State of Washington, McKay Chadell, PLLC. The primary attorneys assigned to this case were Joseph Guerrieri, Jr., and Elizabeth Roma. For 331.60 hours of legal services from April 2009 until August 2010, LIUNA seeks $95,480.11 ($91,612.00 in fees plus $3,868.11 in costs). See Decl. of Elizabeth Roma ("Roma Decl.") [Dkt. # 37] ¶26. LIUNA also seeks an additional $9,006.25 for 33.75 hours of legal services relating to the fee application. Id. ¶ 27. The Carpenters object.

II. ANALYSIS

"The usual method of calculating reasonable attorneys' fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the 'lodestar'*fn3 amount." Bd. of Trs. of Hotel & Restaurant Employees Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). While there is a strong presumption that the lodestar figure represents a reasonable fee, the amount may be adjusted by a multiplier in rare and exceptional cases. Id. (quoting Delaware Valley, 478 U.S. at 565). The fee applicant bears the burden of demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984); Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

A. Rates

"[A]n attorney's usual billing rate is presumptively the reasonable rate, provided that this rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993). A rate determined this way is usually deemed to be reasonable and is referred to as the "prevailing market rate." Blum, 465 U.S. at 895 n.11. Given the variation in attorneys' skills and experiences, the prevailing market rate for established practitioners is higher than that for younger lawyers. See id.

Reasonable attorneys' fees include charges for legal assistants and law clerks. Missouri v. Jenkins, 491 U.S. 274, 285 (1989) ("Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit."). Various forms of litigation expenses that are not fees for attorneys' time - such as copying charges, court reporter fees, and travel costs - may also be included in the award if such expenses are routinely billed by the attorney to his or her client. See New York v. Microsoft Corp., 297 F. Supp. 2d 15, 47-48 (D.D.C. 2003).

The Laffey Matrix*fn4 was developed by the United States Attorney's Office for the District of Columbia to track prevailing attorneys' hourly rates for complex federal litigation. It "creates one axis for a lawyer's years of experience in complicated federal litigation and a second [axis] for rates of compensation." Griffin v. Wash. Convention Ctr., 172 F. Supp. 2d 193, 197 (D.D.C. 2001). The Laffey Matrix provides the ...


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