Davis v. Lakeside Motor Co.

• Decision Date: 07 July 2014
• Docket Number: Case No. 3:10-CV-405 JD
• Parties: JAMES DAVIS, Plaintiff, v. LAKESIDE MOTOR COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

JAMES DAVIS, Plaintiff,
v.
LAKESIDE MOTOR COMPANY, INC., Defendant.

Case No. 3:10-CV-405 JD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

ENTERED: July 7, 2014

OPINION AND ORDER

Now before the Court are the Plaintiff James Davis' Bill of Costs relative to his two motions for sanctions, and the Defendant Lakeside Motor Company, Inc.'s response to the Court's order to show cause why sanctions should not be imposed under Rule 11 and Rule 26.

A. Plaintiff's Bill of Costs

Upon receiving Lakeside's trial exhibits in this matter, Mr. Davis discovered that several of the exhibits contained documents that should have been produced in discovery but were not. Accordingly, he filed two motions for sanctions against Lakeside: one for failing to produce several documents as required by Rule 37(c), and one for violating Court orders relative to third party subpoenas and for failing to produce subpoenaed documents, pursuant to Rule 37(b) and (c). The Court granted both motions in part, and in addition to excluding certain documents from trial, awarded Mr. Davis his attorneys' fees incurred in bringing these motions.¹ [DE 140]. Mr.

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Davis then filed a bill of costs in which he seeks a total of $17,762.50 for work that two of his attorneys and a paralegal performed in connection with the motions. Lakeside opposes this amount on the grounds that certain amounts of time were either excessive or unrelated to these motions, and that the hourly rates are unreasonable.

Awards of attorneys' fees are calculated using the lodestar method, which entails "multiplying the 'number of hours reasonably expended on the litigation by a reasonable hourly rate.'" Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (internal alterations omitted). The Court first considers Lakeside's objections to the number of hours expended by Mr. Davis' counsel. Lakeside objects to billing entries from January 17 and 20, 2014 relating to a page-by-page review Mr. Davis's counsel conducted of all of Lakeside's trial exhibits, contending that they were not incurred for the purpose of the motions for sanctions themselves. Mr. Davis responds that he could not have brought the motions for sanctions if he had not reviewed all of the exhibits to determine which ones had been produced. This review confirmed which documents Lakeside had not produced, that those documents were responsive to Mr. Davis' discovery requests, and that they should have been produced given Lakeside's discovery responses and correspondence and the Court's orders, all of which was instrumental to the motions for sanctions. Had Lakeside fulfilled its discovery obligations, this task would not have been necessary, so it is compensable. The Court agrees, though, that the one-hour conference between two attorneys and a paralegal prior to embarking on this review is excessive, so the Court awards Mr. Davis only the 12 hours billed by the paralegal for this work.

Lakeside next objects to the total amount of time spent on the basis that it is unreasonably excessive in light of the length and complexity of the briefing. Only time that was "reasonably

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expended" should be compensated, meaning that a party seeking fees "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434 ("In the private sector, 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."). In determining the reasonableness of the total time spent on a matter, courts consider, among other factors, the length of the filings, the complexity of the issues, and the amount of legal authority cited in the filings. United Consumers Club, Inc. v. Prime Time Mktg. Mgmt. Inc., 2:07-CV-358, 2011 WL 1375160, at *1 (N.D. Ind. Apr. 12, 2011) (collecting cases).

Here, counsel billed 25 hours in preparing the two motions, and an additional 18.5 hours in preparing the two reply briefs. The Court believes that this amount of time is excessive and that sound billing judgment would have resulted in reductions in the amount of time billed. The two motions were seven and ten pages long, the latter of which included three pages of block quotations from discovery responses, and portions of the factual background and legal analysis are identical between the two motions. There is some degree of factual complexity in distilling the relevant facts from correspondence, discovery requests and responses, and previous motions and orders, but these motions were supported by only sparse citations to relevant legal authority. The reply briefs are five and nine pages long, and again focus primarily on discussions of facts rather than on legal analysis. Therefore, in approximating the amount of time that might have been reasonably billed to a client for these tasks, the Court finds that 15 hours were reasonably spent preparing the motions, and 11 hours were reasonably spent preparing the replies, on top of the time spent by the paralegal, as addressed above.

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Lakeside also objects to several billing entries for time spent in meetings or performing similar tasks on the basis that they are unreasonably duplicative. The fact that multiple individuals bill time on a matter does not necessarily mean that their fees were duplicative, so long as they made unique contributions to the end product rather than duplicating each other's work. Gautreaux v. Chicago Housing Authority, 491 F.3d 649, 661 (7th Cir.2007); Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir.1988). Here, having already determined the amount of time reasonably spent on the motions, the Court will address these concerns by allocating all of those hours to Mr. Wrage's entries, as he performed the most work on the motions. Accordingly, Mr. Davis is entitled to be compensated for 26 hours of Mr. Wrage's time, plus 12 hours of the paralegal's time.

Lakeside finally objects to the hourly rates of $350 per hour for Mr. Wrage and $125 for the paralegal. The Seventh Circuit has defined a reasonable hourly rate as one that is "derived from the market rate for the services rendered." Pickett v. Sheridan Health Care Center, 664 F.3d 632, 640 (7th Cir. 2011) (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)); Montanez v. Simon, 13-1692, 2014 WL 2757472 (7th Cir. June 18, 2014). The Court presumes that an attorney's actual billing rate for similar litigation is appropriate to use as the market rate. Pickett, 644 F.3d at 640. Having recognized the difficulty of determining the hourly rate of an attorney who uses contingent fee agreements, the Seventh Circuit has advised district courts to rely on the "next best evidence" of an attorney's market rate, namely "evidence of rates similarly experienced attorneys in the community charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Pickett, 664 F.3d at 640 (quoting Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 555 (7th Cir. 1999)); Montanez, 2014 WL 2757472, at *4. Of these two alternatives, the Seventh Circuit has indicated a preference for third party

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affidavits that attest to the billing rates of comparable attorneys. Id. (citing Spegon, 175 F.3d at 556).

The fee applicant bears the burden of "produc[ing] satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community." Pickett, 664 F.3d 632 at 640 (citing Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). If the fee applicant satisfies this burden, the burden shifts to the other party to offer evidence that sets forth "a good reason why a lower rate is essential." Id. (citations omitted). However, if the fee applicant does not satisfy its burden, the district court has the authority to make its own determination of a reasonable rate. Id. (citing Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999)).

As to Mr. Wrage's rate, the affidavit from Mr. Barkes, one of Mr. Davis' attorneys, states that Mr. Wrage's "standard hourly billing rate" is $350 per hour. This stops short of stating that Mr. Wrage actually bills this amount to Mr. Davis or to other clients in similar matters, though. In a previous fee submission in this matter, Mr. Wrage stated that his hourly rate in 2012 was $300, and Lakeside did not object to that amount. [DE 64, 76]. In support of that previous fee submission, Mr. Wrage also submitted an affidavit from Mark L. Phillips of Newby Lewis Kaminski & Jones, LLP, in which Mr. Phillips states that he is familiar with Mr. Wrage's work, experience, and reputation, as well as the fees charged by similar attorneys in employment discrimination matters, and that the reasonable hourly rate for such attorneys ranges from $300 to $375 per hours. In response to the current submission, Lakeside did not provide any counter affidavits (until it attached an affidavit from a different case to its reply brief, which is too late), and cited two inapposite cases, one awarding $150 per hour in a § 1983 action, and one awarding up to $250 per hour in a copyright case for work performed...