Alexander v. National Farmers Organization, 19191-A-1.

• Decision Date: 17 June 1986
• Docket Number: No. 19191-A-1.,19191-A-1.
• Parties: Robert B. ALEXANDER, et al., Plaintiffs, v. NATIONAL FARMERS ORGANIZATION, et al., Defendants and Counterclaim Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., et al., Counterclaim Defendants.
• Court: U.S. District Court — Western District of Missouri

637 F. Supp. 1487

Robert B. ALEXANDER, et al., Plaintiffs, v. NATIONAL FARMERS ORGANIZATION, et al., Defendants and Counterclaim Plaintiffs, v. ASSOCIATED MILK PRODUCERS, INC., et al., Counterclaim Defendants.

No. 19191-A-1.

United States District Court, W.D. Missouri, W.D.

June 17, 1986.

David A. Donohoe, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for National Farmers' Organization, defendant and counterclaim plaintiff.

Donald W. Barnes, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., and Colvin A. Peterson, Jr., Watson, Ess, Marshall & Enggas, Kansas City, Mo., for Associated Milk Producers, Inc., counterclaim defendants.

Sydney Berde, Berde & Hagstrom, P.A., St. Paul, Minn., for Central Milk Producers Co-op., counterclaim defendant.

George A. Leonard, Shughart, Thomson & Kilroy, and Major W. Park, Jr., Gage & Tucker, Kansas City, Mo., for Mid-America Dairymen, Inc., counterclaim defendants.

MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I.

On August 9, 1985 this Court entered an agreed order which established the time schedule under which the following matters would be submitted for this Court's consideration: (1) NFO's attorneys' fee petition, (2) NFO's Rule 37 motion, (3) AMPI's Rule 37 motion,¹ and (4) NFO's bill of costs. By agreement of the parties, the deadline for the last filing to be made under that order was extended to February 10, 1986. On August 27, 1985 NFO filed a motion for clarification of this Court's ruling denying an award of damages. That motion has been fully briefed on a separate schedule and will be ruled.²

NFO's motion for clarification will be denied. Both NFO's Rule 37 motion and AMPI's motion for sanctions will be granted. Both NFO's attorneys' fee petition and its separate bill of costs motion will be denied without prejudice.

II.

Consistent with the Supreme Court's admonition to avoid a second major litigation stated in Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), the August 9, 1985 order provided that the parties would conduct appropriate conferences during the month of September, 1985, for the purpose of reaching an agreement in regard to the amounts to be awarded in regard to four matters covered by that order. On September 27, 1985, counsel reported that they had conferred on September 18, 19, and 20, 1985 in Washington, D.C. as directed in the August 9, 1985 order and that they had been able to agree that if current Kansas City rates are to be applied, the reasonable current Kansas City rates would be $110/hr. for partner level work, $70/hr. for associate level work, and $30/hr. for paralegal and law clerk level work. Counsel were, of course, in disagreement as to whether Kansas City or Washington, D.C. rates should apply and whether any award should be based on current or historic rates.

The September 27, 1985 report stated that counsel were unable to agree on any of the major issues posed by NFO's cost petition and the NFO and AMPI Rule 37 motions. Counsel stated, however, that "some progress" had been made on the issues presented in regard to NFO's fee claim. It is clear, however, that the only agreement reached during three days of conference was an agreement as to the current Kansas City hourly rates.

Counsel did not seek any assistance from the Court after the breakdown of those conferences. The Court, of course, did not volunteer assistance, absent such a request. If we had then been familiar with the admonition the Court added in Blum v. Stenson, 465 U.S. 886, 902 n. 19, 104 S.Ct. 1541, 1550 n. 19, 79 L.Ed.2d 891 (1984), to the earlier admonition of Hensley v. Eckerhart, supra, 461 U.S. at 437, 103 S.Ct. at 1941, to avoid a second major litigation, we might have directed counsel to engage in further negotiations. For the Court stated in Blum that a district "court, with its intimate knowledge of the litigation, has a responsibility to encourage agreement."

We frankly doubt whether further negotiations would have been any more successful than those already conducted pursuant to the August 9, 1985 order. For the September 27, 1985 report of those negotiations and the briefs and documents filed since the failure of the settlement conference make it clear that the parties have mutually decided, contrary to Hensley's admonition, to embark on a second major litigation.³

Our memorandum opinion on remand, reported in 614 F.Supp. 745 (W.D.Mo.1985), shows that NFO's Rule 37 motion for monetary sanctions was presented on remand as Issue No. 2; AMPI's motion against NFO for sanctions was presented on remand as Issue No. 3; and that NFO's motion for costs was presented on remand as Issue No. 8.

The orders entered in regard to all three of those issues were consistent with this Court's acceptance of counsels' representations that they were in full agreement with the Hensley second major litigation admonition and that the parties, if given some guidelines, would be able to reach an agreement in regard to all three of those issues.⁴

It is now painfully obvious that the Court was overly optimistic in assuming that the parties would be able to negotiate a settlement of even the relatively uncomplicated questions presented in regard to Issues 2, 3, and 8. For despite continued and frequent assertions that each side wants to avoid a second major litigation, it is crystal clear that the parties have tacitly agreed to follow exactly that course.⁵

The history of how Alexander has been bitterly litigated and the history of how the thirty other antitrust cases in In re Midwest Milk Monopolization Litigation, Multidistrict Docket No. 83, were long ago terminated establishes the sharp contrast between the inability of counsel in Alexander to reach agreement on even minor questions and the ability of counsel in the thirty other antitrust cases to reach complete agreement in regard to how all those cases were to be terminated.

The six opinions of the Judicial Panel on Multidistrict Litigation in In re Midwest Milk Monopolization Litigation⁶ show that the Panel transferred 28 separate private antitrust actions to this Court for coordinated pretrial proceedings pursuant to 28 U.S.C. ? 1407.⁷ In addition to the 28 private antitrust actions transferred pursuant to Section 1407, this Court accepted transfer pursuant to 28 U.S.C. ? 1404, of the government's civil antitrust action originally filed against AMPI in the Northern District of Texas. That government case, and the government's civil action against Mid-Am, filed in this district was also processed in this Court under coordinated pretrial procedures. Both cases were long ago terminated by this Court's approval of consent decrees.⁸

The files and records of this Court and the docket sheets of the Panel establish that all of the 30 antitrust cases in which coordinated, as distinguished from consolidated, pretrial discovery was conducted, excepting only two cases transferred from the Northern District of Illinois, were disposed of by the agreement of the parties and without the conduct of any major litigation.⁹

The contrast between the manner in which the 28 cases on Multidistrict Docket No. 83 and the two government antitrust actions were terminated and the failure of counsels' efforts in this case to reach any agreement in regard to any significant issue requires that this Court recognize that the parties in this case would rather litigate every issue that can be litigated than settle any issue that may be subject to an additional major litigation.

It is therefore appropriate that the final judgments that will be entered in regard to the orders entered July 5, 1985 and the orders entered today will be in an agreed form that will enable the parties to present all the issues that either side may wish to seek appellate review.

We turn now to NFO's motion for clarification.

III.

Four days before NFO filed its motion for attorneys' fees, it filed a motion captioned as a "Motion for Clarification of the Court's Ruling Denying an Award of Damages." That motion requested that this Court "clarify" its July 5, 1985 order "so as to award NFO nominal damages of One Dollar ($1.00) trebled to Three Dollars ($3.00)."

Defendants' suggestions in opposition to that motion commenced with the statement, never denied by NFO, that "NFO's reason for bringing a motion for $3.00 in damages, although unstated, is quite apparent: the prerequisite to any award of attorney's fees under 15 U.S.C. ? 15 is the recovery of money damages." Id. at 2. We believe it obvious that at some time during the course of preparing its motion for attorneys' fees, NFO came to the realization that if this Court's July 5, 1985 decision on the damage issue was affirmed on appeal and its decision that NFO was entitled only to the minimal equitable relief awarded by this Court was reversed, NFO would find itself in the unhappy position of having no statutory basis for the award of any attorneys' fees in this case.¹⁰

The arguments in support of and in opposition to NFO's motion for clarification center primarily on three Eighth Circuit cases: Rosebrough Monument Co. v. Memorial Park Cemetery Association, 666 F.2d 1130 (8th Cir.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982); Morning Pioneer, Inc. v. Bismarck Tribune Co., 493 F.2d 383 (8th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974); Siegfried v. Kansas City Star Co., 298 F.2d 1 (8th Cir.1962), cert. denied, 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962).

NFO argues that those three cases support its argument that "the Eighth Circuit has repeatedly mandated that in precisely NFO's situation ... nominal damages of one dollar trebled to three dollars should be awarded."¹¹ (Emphasis added). Defendants, on the other hand, argue that while "the Eighth Circuit has approved the award of nominal damages upon proof of injury but failure of proof as to the quantum of...