
    Kimberly ISOM, Plaintiff, v. JDA SOFTWARE INCORPORATED, Defendant.
    No. CV-12-02649-PHX-JAT
    United States District Court, D. Arizona.
    Signed 12/21/2016
    
      Daniel Lee Bonnett, Evan Robert Browne Schlack, Jennifer Lynn Kroll, Ravi Vasishta Patel, Susan Joan Martin, Martin & Bonnett PLLC, Phoenix, AZ, for Plaintiff.
    Laura Lawless Robertson, Lawrence Jay Rosenfeld, Squire Patton Boggs (US) LLP, Phoenix, AZ, for Defendant.
   ORDER DENYING DEFENDANT JDA SOFTWARE’S MOTION FOR NEW TRIAL AND/OR TO AMEND THE JUDGMENT AND MOTION FOR RENEWED JUDGMENT AS A MATTER OF LAW

James A. Teilborg, Senior United States District Judge

Pending before the Court is Defendant’s Motion for New Trial and/or to Amend the Judgment and Motion for Renewed Judgment as a Matter of Law. (Doc. 183) Plaintiff filed a response to the motion (Doc. 188) and Defendant filed a reply (Doc. 194). Also pending before the Court is Plaintiff Kimberly Isom’s Motion for Attorney Fees (Doc. 184),- Defendant JDA Software filed a Response in Opposition (Doc. 191), and Plaintiff filed a reply (Doc. 195). The Court now rules on the motions.

I. Background

Plaintiff Kimberly Isom sued her former employer, Defendant JDA Software Incorporated (“JDA”), alleging JDA interfered with her right to take maternity leave under the Family Medical Leave Act (“FMLA”),, 29 U.S.C. § 2617(a), At all times relevant to this suit, Plaintiff was employed by JDA as a sales account manager. In December 2010, Plaintiff informed JDA of her pregnancy and began asking Human Resources representatives about the possibility of taking maternity leave under the FMLA. Plaintiff specifically expressed her concerns that taking leave would allow her , sales management team to remove certain accounts from her sales pipeline, thereby nullifying her “hard work over the last [two] years.” In addition to speaking with human resources, Plaintiff also informed her immediate supervisor of her pregnancy and made him aware of her concerns regarding commissions and account retention.

For the next six months, Plaintiff continued her attempts to determine whether taking leave was in her financial and professional interest. Between January and March 2011, Plaintiff lodged multiple inquiries with human resources in an effort to determine whether her accounts could be reassigned to her detriment if she were to take FMLA leave. Despite her repeated inquiries, JDA did not provide Plaintiff with answers to her questions or concerns. Eventually, Plaintiff contacted JDA’s in-house counsel, but counsel was similarly unable to provide Plaintiff with meaningful guidance.

Plaintiff ultimately decided to take the allowed twelve weeks of leave under the FMLA after she gave birth to twins in June 2011. During her leave, JDA reassigned one of Plaintiffs sales accounts (the “Sears Canada” account) to another salesperson, Plaintiff requested that JDA revisit the account’s reassignment after she returned from work in August 2011, but JDA explained that it would not do so in accordance with “company policy.” Plaintiff received no commission when the Sears Canada sale closed in March 2012.

Plaintiff filed suit against JDA, alleging that its reassignment of accounts interfered with her statutory rights to be returned to the same or an equivalent position upon her return from leave. See 29 U.S.C. § 2614(a)(1)(A). After a trial, the jury ruled in Plaintiffs favor and awarded her $114,618 in compensatory damages for lost commission associated with the Sears Canada account. This Court then awarded Plaintiff liquidated damages in the same amount pursuant to 29 U.S.C. § 2617(a)(l)(A)(iii), finding JDA did not act in good faith. (Doc. 175). JDA then filed a combined motion for new trial or to amend the judgment and renewed motion for judgment as a matter of law. (Doc. 183).

II. Motion for New Trial and Renewed Motion for Judgment as a Matter of Law

JDA argues it is entitled to relief from the judgment or, in the alternative, to a new trial. (Doc. 183 at 9). JDA contends the evidence presented at trial was insufficient to support a claim under the FMLA, and the jury’s verdict reflects a fundamental misapplication of the law. (Id.)

A. Legal Standard

Federal Rule of Civil Procedure (“Rule”) 50 allows the Court to enter judgment as a matter of law (“JMOL”) on an issue if it finds “that a reasonable jury would not have a legally sufficient eviden-tiary basis to find for the [nonmoving] party.” Fed. R. Civ. P. 50(a)(1). JMOL is proper “if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion and that conclusion is contrary to the jury’s verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Even if findings contrary to the jury’s verdict are possible based on the evidence, the Court must uphold a verdict if “substantial evidence adequate to support” the jury’s conclusion exists in the record. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014). When ruling on a motion for JMOL, this Court does not weigh evidence or make determinations of credibility, but construes all inferences from the evidence in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

A motion for new trial under Rule 59(a) may be granted “after a jury trial, for any reasons for which a new trial has heretofore been granted” in federal court. Fed. R. Civ. P. 59(a). Reasons for granting a new trial may include a verdict that is contrary to the weight of the evidence or a trial that was manifestly unjust to the nonmoving party. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). Unlike with a Rule 50 motion, the Court may make determinations as to the weight of the evidence and credibility of witnesses when determining whether a new trial is warranted. See Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010).

B. Analysis

Under the FMLA, an employee who returns from leave is entitled “to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1)(B). An “equivalent position” is one that is “virtually identical to the employee’s former position in terms of pay, benefits and working conditions” and involving “the same or substantially similar duties and responsibilities.” 29 C.F.R. § 825.215.

Here, the jury determined that JDA did not restore Plaintiff to an equivalent position upon her return from leave and awarded her damages representing the commission she could have earned from closing the sale to Sears Canada. JDA argues the verdict therefore necessarily implied a conclusion that, in order to be restored to an equivalent position, Plaintiff was entitled to a return of the status quo, or “restoration of every one of the [sales] opportunities” she pursued pri- or to taking her FMLA leave. (Doc. 183 at 3, 6:13-14). JDA contends such a verdict is contrary to law, arguing that the FMLA does not require an employer to restore an employee back to an unchanged sales portfolio upon her return.

The Court does not agree with JDA’s characterization of the jury’s verdict. The verdict in Plaintiffs favor does not necessitate a legal conclusion that she was entitled to precisely the same accounts upon her return from leave. Rather, it supports a conclusion consistent with the law: because Plaintiff was not reassigned to substantially equivalent accounts upon her return from leave, her employment was significantly altered in terms of earning potential. Plaintiff herself did not argue that only the restoration of the Sears Canada could have satisfied her rights under the FMLA; she also made the alternative argument that JDA chould have reassigned her comparable accounts with the same or substantially equivalent earning potential, and that its failure to do so violated her right to FMLA leave. (See, e.g., Doe. 5 at 5, ¶35). Accordingly, the jury’s verdict did not necessarily imply that JDA was required to restore Plaintiff to the pre-leave status quo.

The jury instructions similarly do not compel this Court to accept JDA’s characterization of the verdict. The instructions directed the jury to determine whether Plaintiff had proven by a preponderance of the evidence, that “Defendant failed to restore Plaintiff to the same position she held at the time FMLA leave commenced, or to an equivalent position.” (Doc. 170 at 17 (emphasis added)). The instructions went on to define an “equivalent position” as one “that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, prerequisites, and status.” (Id. at 14). The jury instructions were therefore a correct statement of the law regarding what constitutes an employee’s return to an “equivalent” employment position, and did not suggest that Plaintiff was entitled to a return of precisely the same accounts in order to satisfy the FMLA’s requirements.

Moreover, Plaintiff presented evidence that the accounts to which she was assigned upon return from leave were not equivalent to Sears Canada in terms of likelihood of success, progression down the sales pipeline, or earning potential. (Tr. 3/1/2016 P.M. at 21:42-24:4; 30:12-24). She also testified that the size of her overall sales pipeline was reduced by several million dollars as a result of the account’s reassignment. (Tr. 3/1/2016 A.M. at 89:16-22). Accordingly, the record contains evidence sufficient to support the jury’s determination that because the Sears Canada was removed from her sales pipeline, Plaintiffs pre-and post-leave employment positions were not “virtually identical.” See 29 C.F.R. § 825.215.

Because the record contains sufficient evidence to support the verdict, and because the jury’s verdict was not contrary to law, JDA is not entitled to judgment as a matter of law under Rule 50 or to a new trial under Rule 59.'

IV. Motion to Alter the Judgment

A. Legal Standard

JDA also asks this Court to alter or amend the judgment under Rule 59(e). The Court may alter or amend a judgment if: (1) the Court is presented with newly discovered evidence, (2) the judgment at trial was manifestly unjust, (3) there has been an intervening change in controlling law, or (4) the motion is “necessary to correct manifest errors of law or fact upon which the judgment is based.” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999)); see also United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). JDA argues the judgment was based on errors of law and fact, and contends that this Court must now correct those errors by amending the judgment in JDA’s favor.

B. Maintenance Package

First, JDA takes issue with a $10,000 portion of the jury’s lost wages award. JDA argues there is no competent evidence in the record to support the addition of this $10,000 into the calculation of commission lost on the Sears Canada account. Accordingly, JDA contends Plaintiff •did not prove this portion of her damages by a preponderance of the evidence. See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004).

At trial, Plaintiff testified as to her calculation the commission she would have earned on the Sears Canada account had she been allowed to see the sale through to completion. As a part of that calculation, Plaintiff included a putative $10,000 commission she estimated she would have received from the inclusion of a “maintenance package” in Sears Canada’s sale. (Tr. 3/1/2016 P.M. at 66; see also Trial Exhibit 7 at 6). JDA argues there was no evidence to support the inclusion of the $10,000 because Plaintiff admitted she had no “facts” to support her assumption that Sears Canada had in fact purchased a maintenance package. (See Tr. 3/2/16 A.M. at 23).

Nevertheless, Plaintiffs personal knowledge and experience was sufficient to give credibility to her testimony that the Sears Canada sale likely included the purchase of a maintenance package. See Fed. R. Evid. 701 (an opinion by a non-expert witness is admissible as evidence if it is “rationally based on the witness’s perception,” helpful to determine a “fact in issue,” and not based on “scientific, technical, or other specialized knowledge”). Plaintiff explained that she included the $10,000 maintenance package commission in her calculations based on: (1) her personal knowledge of the Sears Canada account from working with Sears Canada prior to the reassignment, and (2) her “understanding of prior contracts” from working with other accounts. (Tr. 3/1/2016 P.M. at 59, 66). Plaintiffs prior experience rendered her testimony sufficiently credible to prove, by a preponderance of the evidence, the damages she requested. Accordingly, the jury did not err by including the $10,000 calculation in its award.

C. Liquidated Damages

Second, JDA asserts the Court erred when it awarded Plaintiff liquidated damages equal to the amount of lost wages awarded by the jury. A plaintiff is entitled to liquidated damages “equal to the sum” awarded by the jury for wages lost as a result of an FMLA violation. 29 U.S.C. § 2617(a)(1)(A)(iii). However, the Court has discretion to decline to award liquidated damages if the employer proves the “act or omission which violated [the FMLA] was in good faith and that the employer had reasonable grounds for believing” its actions did not violate the employee’s rights. Id.] see also Traxler v. Multnomah Cnty., 596 F.3d 1007 (9th Cir. 2010). There is a “strong presumption” in favor of liquidated damages, and it is the employer’s burden to overcome this presumption by proving its reasonableness and good faith. Thom v. Am. Std., Inc., 666 F.3d 968, 977 (6th Cir. 2012); Nero v. Ind. Molding Corp., 167 F.3d 921, 933, n.3 (5th Cir. 1999).

In its March 31, 2016 Order, this Court held that JDA had not met its burden of proving its actions in violation of Plaintiffs rights were taken in good faith. (Doc. 175 at 5). The Court relied on the fact that, despite numerous requests and inquiries from Plaintiff, JDA did not communicate a reasonable, coherent policy regarding the reassignment of accounts until after Plaintiff decided to take FMLA leave. (Doc. 175 at 5-6).

JDA claims that in order to promulgate such a policy prior to Plaintiffs leave period, it would have had to “predict the future and anticipate customer decisions outside the Company’s control.” (Doc. 183 at 12:5— 6). But this argument misreads the Court’s holding. In order to communicate a reasonable policy in response to Plaintiffs repeated inquiries, JDA would not have had to predict the precise accounts in need of reassignment or the time at which they would be reassigned. For example, JDA could have outlined its criteria for deciding if and when an account must be reassigned during an salesperson’s leave, and its policy for whether such accounts would be given back to the original salesperson upon his or her return. But JDA was remiss on providing any such reasonable guidance for Plaintiff prior to her decision to take leave.

It its motion to amend the judgment, JDA argues it met its burden of showing good faith by pointing to the steps it took before making a final determination as to Plaintiffs accounts: consulting outside counsel, discussing Plaintiffs situation with qualified Human Resources representatives, and analyzing the situation in accordance with “JDA’s written FMLA leave policy.” But despite these efforts to create a policy compliant with the FMLA, JDA still failed to communicate any of its intentions or expectations to Plaintiff prior to her absence—despite the fact that JDA knew about Plaintiffs pregnancy and impending need for FMLA leave for six months before her leave began. Instead of issuing a cogent, written policy regarding the reassignment of sales opportunities in anticipation of Plaintiffs leave, JDA waited until after it decided to reassign the Sears Canada account to inform Plaintiff that the transfer was “consistent with [JDA] policy” and not subject to negotiation. (Plaintiffs Trial Exhibit 41 at 12). This Court cannot conclude that this course of action was reasonably believed to be in compliance with the FMLA’s requirements. Accordingly, the liquidated damages award in Plaintiffs favor was not error.

V. Attorneys’ Fees

Because the Court denies JDA’s motion for new trial, it now considers Plaintiffs motion for attorneys’ fees. (Doc. 184). The FMLA directs that the Court “shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3). Plaintiff seeks an award of attorneys’ fees incurred during the underlying case and for the preparation of post-trial motions and responses, as well as an additional award of non-taxable expenses. (Doc. 184 at l).

A. Reasonableness of Attorneys’ Fees

JDA does not dispute that Plaintiffs are entitled to fees under the FMLA, but argues the amount requested is unreasonable. (Doc. 191 at 17). To determine a reasonable attorneys’ fee, the Court begins with the “lodestar figure,” meaning “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). When deciding the reasonable number of hours expended for the purpose of attorneys’ fees, a court may consider, among other things: (1) “the time and labor required of counsel,” (2) “the novelty and difficulty of the questions presented,” (3) “the preclusion of other employment,” (4) “the customary fee charged in matters of the type involved,” and (5) “the results obtained.” See LRCiv 54.2(3).

1. Results Obtained

The Court will first consider the results obtained in the litigation, because JDA’s objections to Plaintiffs fee application are largely based on this Court’s grant of summary judgment on five out of the six counts Plaintiff originally pleaded. (See Docs. 114, 191 at 5-8). JDA contends any award of attorneys’ fees should be significantly reduced to reflect Plaintiffs partial success.

As the Ninth Circuit has explained, “work which relates only to unsuccessful claims should not be awarded” in a grant of attorneys’ fees. Padgett v. Loventhal, 706 F.3d 1205, 1209 (9th Cir. 2013). But often, work done by an attorney relating to an ultimately unsuccessful claim will also prove material or beneficial in relation to a successful claim. In such a case, “the district court must award fees for the work that contributed to a successful result as if the successful claims were the only ones litigated.” Id.

Plaintiff’s attorneys’ records reflect 1389.4 hours spent on the litigation between Plaintiff and JDA, in addition to 29.7 hours spent on post-trial work. (See Exhibit 1). JDA points out that a significant number of these hours were devoted to work on ultimately unsuccessful claims: JDA obtained judgment in its favor on all of Plaintiffs Title VII and Equal Pay Act claims (Doc. 114), and Plaintiff prevailed on only her FMLA claims at trial, and received only a portion of the recovery she sought. But the Court agrees with Plaintiff that her unsuccessful claims and her successful claims were based on a “common core of facts.” See Ambat v. City & Cnty. of San Francisco, 757 F.3d 1017, 1032 (9th Cir. 2014) (explaining that the court should not attempt to parse out a litigant’s request for attorneys’ fees on a claim-by-claim basis when the claims are interrelated). To prove discrimination or retaliation in the context of Title VII or the Equal Pay Act, Plaintiff had to prove that the nature of her post-leave employment was appreciably less valuable than the nature of her pre-leave employment. See Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000) (requiring a Title VII plaintiff show she was subject to an adverse employment action); 29 U.S.C. § 206(d)(1) (prohibiting discrimination in the form of lesser pay). This was also the basis of Plaintiffs successful FMLA claim, because she was required to prove that her pre-and post-leave employment were not virtually identical in terms of earning potential. See supra Section 11(B). Accordingly, the Court disagrees with JDA’s contention that Plaintiffs award should be significantly reduced in light of the summary judgment ruling.

2. Remaining Factors

Similarly, the other relevant factors weigh in favor of granting Plaintiffs motion for attorneys’ fees. Upon review of Plaintiffs attorneys’ time entries, the Court finds the number of hours expended on the case to be reasonable given its nature and complexity. Although not “unduly complex or unusually novel,” the case nonetheless presented unique issues of law as to whether and why the removal of a particular account did not satisfy the FMLA’s requirement of restoration to an equivalent position. (See Doc. 184 at 8). Similarly, the rates charged were appropriate given the experience and skill of the attorneys and the customary rates in the local market. In his affidavit, Plaintiffs attorney also indicates that other work was delayed in preparation for this case, and that work on this case precluded the firm from accepting other potentially meritorious cases. (Doc. 184-1 at 16, ¶ 40). Accordingly, with the exception of the reductions noted below, the Court finds Plaintiffs fee request reasonable in terms of hours and rate.

3. Reductions in Cost

Although it rejects JDA’s request for a lodestar reduction, the Court does find some of Plaintiffs requested fees to be excessive. JDA identifies certain billing entries as duplicative. The Court agrees with several of JDA’s objections in this regard, and in its discretion, will reduce the award as indicated in the attached exhibit. However, the Court disagrees with JDA’s objections to time billed by associate attorneys (who were assigned to the case well after its initiation) for the purpose of familiarizing themselves with the details and status of the case. Athough this is technically duplicative activity, the Ninth Circuit has described such work as “necessary duplication ... inherent in the process of litigating over time[.]” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Because the duplicated work was necessary, the Court will not exclude it from its fee award.

JDA also objects to numerous billing entries as time incurred for clerical tasks. Clerical or secretarial tasks should not be billed at a paralegal or lawyer’s rate. See Davis v. City & Cnty. of S.F., 976 F.2d 1536, 1543 (9th Cir. 1992), vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993). The Court has reviewed the billing entries JDA identifies as clerical, and finds some to be necessary legal work, and others to be purely clerical, including document formatting, hand-delivery of documents, and routine emails. The Court will reduce the fee award by any attorney or paralegal time billed for tasks of a clerical nature.

B. Non-Taxable Costs

Plaintiff also moves for non-taxable expenses in the amount of $22,679.48. (Doc. 184 at 1). JDA objects to several of Plaintiffs listed costs, and for the reasons set forth below, the Court has adjusted the requested award of non-taxable expenses.

1, Costs Incurred for Electronic Legal Research

JDA challenges Plaintiffs request for cost enteies related to $1,268.11 of computerized legal research. (Doc. 191 at 16). JDA argues the entries do not adequately identify the research in violation of Local Rules 54.2(e)(2)(B) and 54.2(e)(3). Under Local Rule 54.2(e)(2)(B), time entries for legal research must identify the specific issue researched: “[t]ime entries simply stating ‘research’ or ‘legal research’ are inadequate and the court may reduce the award accordingly.” Similarly, Local Rule 54.2(e)(3) states:

Description of Expenses Incurred. In a separate portion of the itemized statement, identify each related nontaxable expense with particularity. Counsel should attach copies of applicable invoices, receipts and/or disbursement instruments. Failure to itemize and verify costs may result in their disallowance by the court.

LRCiv 54.2(e)(3).

Having independently reviewed Plaintiffs attorneys’ time entries reflecting legal research, the Court finds several that fail to comply with the specificity requirements of the local rules. Accordingly, the Court has reduced the amount of fees requested by $1,235.69.

2. Third-Party Trial Consulting & Copying Expenses

JDA next argues that Plaintiffs request for costs relating to a third-party trial consulting team are inappropriate for recovery as non-taxable costs. JDA cites no authority to support its claims that these costs are unrecoverable, and the Court disagrees with JDA’s argument that meeting with the trial consulting team was a clerical activity. (Doc. 191 at 17).

JDA also objects to Plaintiffs copying fees as exceeding the limit set by the Ninth Circuit rules. See 9th Cir. R. 39-1 (rules for “Costs and Attorneys Fees on Appeal”). However, the rule to which JDA cites is a rule governing costs on appeal in the Circuit Court; those rules do not prohibit the District Court from awarding reasonable copying costs exceeding ten cents per page. As a result, the Court overrules JDA’s objections. Because Plaintiffs requested copying costs are not excessive, the Court will award them as requested.

C. Final Fees and Costs Calculation

In accordance with its reasoning above, the Court reduces Plaintiffs fee request by $3,721.00. The Court will award a total of $525,782.75 in attorneys’ fees. The Court also reduces Plaintiffs request for nontaxable costs by $1,235.69. The Court will award a total of $16,508.11 in non-taxable costs.

VI. Conclusion

For the reasons stated above,

IT IS ORDERED that defendant JDA’s Motion for New Trial and/or to Amend the Judgment and Motion for Renewed Judgment as a Matter of Law (Doc. 183) is denied.

IT IS FURTHER ORDERED that Plaintiffs Motion for Attorney Fees and Non-Taxable Costs (Doc. 184) is GRANTED IN PART. The Court awards $525,782.75 in attorney fees and $16,508.11 in non-taxable costs for a total award of $542,290.86.

Exhibit 1—Detailed Ruling on Motion for Attorneys’ Fees 
      
      . The following summary is based upon stipulated facts, credible testimony during trial, and documentary evidence submitted into the record.
     
      
      . Two of Plaintiff’s accounts were ultimately transferred. Only the Sears Canada account is at issue here.
     
      
      . The Court also awarded Plaintiff prejudgment interest totaling $1,744.82 on the jury’s lost wages award and on the liquidated damages. (Doc. 175). JDA does not challenge tire Court’s award of prejudgment interest.
     
      
      . Since the filing of Plaintiff’s application for attorneys’ fees, Plaintiff has voluntarily adjusted her request for both fees and costs as reflected in the exhibit accompanying this Order. Plaintiff's adjustments, including voluntary downward adjustments and additions of the costs of responding to post-trial motions, will be reflected in the Court’s award and in the accompanying exhibit.
     