                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 12 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RUDY LEMUS; MANUEL LOPEZ                         No. 09-17406
ZARATE; ARTURO CARRENO
GARCIA; NORMA URIBE; LINO                        D.C. No. 2:06-cv-01158-RCJ-PAL
CALDERON MENDOZA,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

BURNHAM PAINTING & DRYWALL
CORP.; LYLE T. BURNHAM;
CENTENNIAL DRYWALL SYSTEMS,
INC.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                      Argued and Submitted March 17, 2011
                           San Francisco, California

Before: WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Rudy Lemus, Manuel Lopez Zarate, Arturo Carreno Garcia, Norma Uribe,

and Lino Calderon Mendoza (Plaintiffs) appeal from the district court’s order

reducing their request for attorney’s fees, statutory costs, and litigation expenses

from $386,071.38 to $121,599.11. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we review the “district court’s decision to award attorney’s fees . . . for

abuse of discretion.” Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059

(9th Cir. 2006). After careful review of the record, we vacate and remand for

further proceedings.

                                           I.

      The district court does not commit an abuse of discretion by beginning its

analysis using a party’s lodestar calculations. Although it is not entirely clear, we

assume the district court adopted Plaintiffs’ lodestar figure. If so, the court was not

required to accept Plaintiffs’ calculations without change or otherwise specify an

initial lodestar amount. See McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th

Cir. 2009) (explaining that “[t]ypically a district court begins it[s] calculation of

fees by” determining a lodestar amount) (emphasis added).

      The district court did not abuse its discretion when it reduced fees after

finding that Plaintiffs’ counsel engaged in stalling tactics. See Monolith Portland

Midwest Co. v. Kaiser Aluminum & Chem. Corp., 407 F.2d 288, 297 (9th Cir.


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1969) (holding that the amount of a fee award may be affected where one of the

parties increases “the length of the litigation” by engaging in “prolonging tactics”).

The district court’s finding that Plaintiffs’ attorneys stalled the litigation as part of

an effort to unionize the residential construction market in Las Vegas has adequate

support in the record. See McCown, 565 F.3d at 1101 (reviewing factual findings

underlying a district court’s fee award for clear error).

      It was not an abuse of discretion to reduce Plaintiffs’ fee award on the basis

of numerous billing discrepancies. See Hemmings v. Tidyman’s Inc., 285 F.3d

1174, 1200 (9th Cir. 2002). By resolving discrepancies between the time billed

and the time actually spent preparing and deposing certain witnesses in favor of the

time spent, the district court simply reduced Plaintiffs’ award by the amount of

time that it deemed “overinflated.” See id. Similarly, the district court did not

abuse its discretion by excluding fees for time spent reviewing the docket and

monitoring filing deadlines. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 288

n.10 (1989) (holding that time billed for “purely clerical or secretarial tasks”

should not be included in an award of attorney’s fees).

      We also hold that the district court acted within its discretion when it

decided to reduce fees based on the result obtained. Sorenson v. Mink, 239 F.3d

1140, 1147 (9th Cir. 2001) (holding that a district judge has discretion to reduce a


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fee award based on the “level of success” achieved by the prevailing party).

Plaintiffs initially sought damages of approximately $180,000, but recovered only

$65,000. Hundreds of Burnham employees were identified as eligible claimants,

yet only fifteen ever recovered. These results are not particularly impressive.

       The decision to reduce fees for attorney travel time also fell within the

district court’s discretion. Plaintiffs “bear[] the burden of establishing that the fee

sought is reasonable.” See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir.

2009). Nevertheless, Plaintiffs, who were all Nevada residents, present nothing to

explain why it was reasonable to retain a California law firm for this Las Vegas

case. The record is devoid of evidence indicating that Plaintiffs selected the

California firm based on its reputation or its unique skill in handling FLSA cases.

See Chalmers v. City of L.A., 796 F.2d 1205, 1216 n.7 (9th Cir. 1986) (explaining

that travel time is generally compensable when reasonable). We recognize that a

litigant is entitled to retain an attorney of his choice; yet, a district court does not

abuse its discretion by reducing fees for travel time when the litigant fails to show

that his attorney’s travel expenses were reasonable. See id.

                                            II.

       We are, however, troubled with the district court’s apparent decision to

reduce fees based on the staffing decisions of Plaintiffs’ attorneys. See Moreno v.


                                            4
City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). The district court

reasoned that Plaintiffs “created an excess of fees” by relying primarily on “senior

attorneys for the majority of tasks.” From this statement, it appears that the district

court reduced fees after reasoning that “it would have been cheaper to delegate the

work to other attorneys.” Id. But this assignment of task decisions is usually left

up to the law firm absent evidence of being unreasonable. We therefore vacate and

remand this issue for additional consideration.

      We are also unable to determine whether the district court granted Plaintiffs’

request for $22,434.72 in attorney’s fees for the time expended preparing their fee

application. See Hemmings, 285 F.3d at 1200 (explaining that fees incurred in

conjunction with the preparation of a fee application can be reduced when the

district court concludes that such fees were not reasonably incurred). From the

district court’s order, it is unclear whether these fees were included in the total

award, reduced in part, or excluded altogether. We therefore vacate and remand as

is needed to allow for meaningful review of the district court’s treatment of these

fees. See McCown, 565 F.3d at 1102.

      Similarly, while the district court had discretion to reduce or exclude

statutory costs and litigation expenses, it did not “specify reasons” for doing so

here. See Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th


                                           5
Cir. 2000). Plaintiffs sought statutory costs in the amount of $24,793.80 and

requested $21,599.11 in eligible litigation expenses, for a total of $46,392.91.

Without any explanation, the district court reduced this amount to $21,599.11. We

therefore must vacate and remand on that issue as well.

      Ultimately, we are uncertain how the district court reached a final award of

$100,000 in attorney’s fees and $21,599.11 in litigation costs/expenses. See

Perdue v. Kenny A., 130 S. Ct. 1662, 1676 (2010) (explaining that “[i]t is essential

that the judge provide a reasonably specific explanation for all aspects of a fee

determination,” otherwise “adequate appellate review is not feasible”). While

many of the reductions fall within the district court’s discretion, the district court

must explain how it arrived at the amount of its award – i.e., why the actual

amount selected is reasonable. See Sorenson v. Mink, 239 F.3d 1140, 1146 (9th

Cir. 2001) (requiring a district court to “explain[] the relationship” between the

time “improperly billed and the size of the [fee] reduction”). That is, the district

court must further explain how the problems it found, as described in part I,

affected the award, and what effect the errors or omissions we identified in part II

have upon that award.

      Each party shall bear its own costs.

      VACATED AND REMANDED.


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