Montgomery ex rel. Herself & for the Benefit of All With the Common Or Gen. Interest v. Kraft Foods Global, Inc.

• Decision Date: 02 March 2015
• Docket Number: Case No. 1:12-CV-00149
• Parties: PAMELA MONTGOMERY, on behalf of Herself and for the Benefit of All with the Common or General Interest, Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. KRAFT FOODS GLOBAL, INC., a Delaware Corporation; and STARBUCKS CORPORATION, a Washington Corporation, Defendants.
• Court: U.S. District Court — Western District of Michigan

PAMELA MONTGOMERY, on behalf of Herselfand for the Benefit of All with the Common or General Interest,Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. KRAFT FOODS GLOBAL, INC., a Delaware Corporation;and STARBUCKS CORPORATION, a Washington Corporation, Defendants.

Case No. 1:12-CV-00149

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 2, 2015

HON. GORDON J. QUIST

OPINION REGARDING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS AND RELATED MOTIONS

BACKGROUND

Plaintiff, Pamela Montgomery, filed a class action complaint in this case on February 20, 2012 against Defendants, Kraft Foods Global, Inc. and Starbucks Corporation, alleging state law claims for violation of the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq. and similarly worded state laws, innocent misrepresentation, breach of express and implied warranties and breach of contract. Montgomery also asserted a federal claim of unfair competition in violation of the Lanham Act, 15 U.S.C. § 1125 et seq. (Dkt. # 1.) Montgomery, a Starbucks coffee drinker, alleged that she purchased a Kraft-Tassimo single serving coffee brewing system for approximately $100, for the purpose of brewing Starbucks coffee. Montgomery alleged that from January 2010 until about November or 2011, Kraft and Starbucks disseminated false and misleading information designed to lead consumers to believe that Starbucks T-discs (the single-serve beverage component of the brewing system) would be available for a reasonable amount of time into thefuture, although Defendants knew that their business relationship would soon be at an end. Montgomery further alleged that after she purchased her Tassimo, it became increasingly difficult and impossible to find Starbucks T-discs.

On May 10, 2012, Defendants filed separate motions to dismiss all of Montgomery's claims. (Dkt. ## 14, 16.) On September 24, 2012, after the motions to dismiss were fully briefed, the Court heard oral argument. On October 9, 2012, Montgomery filed a first amended class action complaint that, among other things, amended the proposed class definitions and deleted the Lanham Act claim. Defendants then renewed their motions to dismiss. On December 6, 2012, the Court issued an Opinion and Order granting in part and denying in part Defendants' motions to dismiss. (Dkt. ## 39, 40.) Specifically, the Court dismissed Montgomery's claims for breach of express and implied warranties, breach of contract, and violation of section 3(1)(h), (n), (p), (q), (t), (u), and (w) of the MCPA, leaving the alleged violation of section 3(1)(a), (c), (s), (bb), and (cc) of the MCPA as Montgomery's only viable claim.¹

On February 28, 2013, the Court issued a Case Management Order that provided for an initial phase of discovery regarding class certification, ending on August 15, 2013, to be followed by a motion for class certification by Montgomery. (Dkt. # 51.) Thereafter, the parties engaged in class discovery and, after an extension of the class discovery and motion for class certification deadlines, Montgomery filed her motion for class certification on October 1, 2013. Following the completion of briefing on the motion for class certification, the Court heard oral argument, and on May 9, 2014, issued an Opinion and Order denying Montgomery's motion for class certification. (Dkt. ## 132, 133.) Montgomery did not appeal the denial of class certification. See Fed. R. Civ. P. 23(f).

The denial of class certification left Montgomery's individual claim under the MCPA—which would have provided Montgomery a maximum recovery of $250 in statutory damages had she prevailed at trial—as the only claim remaining in the case. On September 3, 2014, in light of minimal potential damages, the certainty that the amount of attorney fees that would be incurred to further litigate the case would dwarf any damages that Montgomery might recover, and the parties' inability to formulate a reasonable and economical plan to resolve the case, the Court issued an Order to Show Cause why the Court should not order Defendants to submit an offer of judgment to Montgomery in the amount of $250.00, plus costs and reasonable attorney fees as determined by the Court. (Dkt. # 144.) In response to the Order to Show Cause, Defendants made an offer of judgment to Montgomery on substantially the same terms outlined in the Order to Show Cause. On October 1, 2014, after further posturing, Montgomery accepted Defendants' offer of judgment, with the qualification that she was not waiving her right to appeal the Court's denial of class certification. (Dkt. # 150.)

In accordance with the briefing schedule issued by the Court, Montgomery has filed a motion for attorney's fees and costs. Montgomery has also filed several related motions. The motions are fully briefed and ready for decision.

DISCUSSION

I. Montgomery's Motions to Delay Ruling on Motion for Attorney Fees and Costs, to Compel Attorney Fee Records, and to Conduct an Evidentiary Hearing on Defendants' Objections

After filing her motion for attorney's fees and costs, Montgomery filed three ancillary motions—a motion requesting the Court to delay ruling on Montgomery's request for attorney fees and costs pending the Court's review of Defendants' fee records, a motion to compel Defendants and their counsel to produce their attorney fee billing records, and a motion for an evidentiary hearing on Defendants' objections to Montgomery's request for fees and costs. The Court will deny all of these motions.

Montgomery filed her motion for attorney's fees on October 23, 2014. On November 17, 2014, after Defendants filed their response raising numerous objections to Montgomery's request, Montgomery filed a motion requesting the Court to delay ruling on her request for fees and costs until the Court reviewed Defendants' counsels' billing records to measure the legitimacy of Defendants' objections.² Montgomery argued that "[a]fter promising to forego the issue of Plaintiff's entitlement to attorney fees and costs under the MCPA to induce acceptance, Defendants now seek to 'have it both ways' by opposing Plaintiff's submission of documents supporting those reasonable fees and costs."³ (Dkt. # 157 at Page ID#3231.) Subsequently, Montgomery served non-party subpoenas on Defendants' law firms pursuant to Rule 45 of the Federal Rules of Civil Procedure, requesting them to produce their billing entries and fee statements in relation to this case. (Dkt. # 159-2.) After the law firms objected to the subpoenas, Montgomery filed a motion to compel Defendants and their law firms to produce their billing records.

Montgomery's request for opposing counsel's billing information, while a first for this Court, is not unprecedented. As Montgomery notes, some courts have required a party opposing a feerequest to produce its own counsel's billing records because such information might be probative of whether the time spent on the case by the party seeking fees was reasonably and necessarily spent on the case. See Stastny v. S. Bell Tel. & Tel. Co., 77 F.R.D. 662, 663-64 (D.C.N.C. 1978) (requiring opposing counsel to provide information as to the number of hours each attorney spent on the case and on what matters the time was spent); Chi. Prof'l Sports Ltd. P'ship v. Nat'l Basketball Ass'n, 1996 WL 66111, at *3 (N.D. Ill. Feb. 13, 1996) (noting that in an antitrust case "it is not an abuse of discretion to find that a defendant's costs and hours are irrelevant to the reasonableness of a plaintiff's claimed award," but allowing the plaintiffs to obtain the defendant's billing information because such information might provide the best available comparable standard to measure the reasonableness of the plaintiffs' fees); Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 64-65 (D. Del. 1992) (citing In re Fine Paper Antitrust Litig., 751 F.2d 562, 587 (3d Cir. 1984), and noting that "[t]he Third Circuit Court of Appeals has recognized that evidence of fees and expenditures of other parties may be relevant to the issue of the reasonableness of the petitioner's fees and leaves questions of discovery on this issue to the informed discretion of the district court."). Montgomery also cites several cases from the Western District of Tennessee that allowed discovery of opposing counsel's fees. See, e.g., Pollard v. E.I. DuPont de Nemours & Co., No. 95-3010, 2004 WL 784489, at *3 (W.D. Tenn. Feb. 24, 2004) (concluding that the defendant's counsel's billing records could be relevant to the defendant's objections that the plaintiff's fee request included hours that were excessive, redundant, or unnecessary).

On the other hand, as Defendants note, several circuits, including the Seventh, Tenth, and Eleventh Circuits, have concluded that opposing counsel's fees are generally not relevant to a moving party's fee request. For example, in Mirabal v. General Motors Acceptance Corp., 576 F.2d 729 (7th Cir. 1978), the Seventh Circuit observed that opposing counsel's fees are not helpful in the determination of a fee petition because "a given case may have greater precedential value for one side than the other," and "a plaintiff's attorney, by pressing questionable claims and refusing tosettle except on outrageous terms, could force a defendant to incur substantial fees which he later uses as a basis for his own fee claim." Id. at 731. Similarly, in Johnson v. University College of University of Alabama in Birmingham, 706 F.2d 1205 (11th Cir. 1983), the Eleventh Circuit stated: "The amount of hours that is needed by one side to prepare adequately may differ substantially from that for opposing counsel, since the nature of the work may vary dramatically. The case may have far greater precedential value to one side than the other." Id. at 1208. In addition, both the Michigan Supreme Court and the Michigan Court of Appeals have indicated it is improper to consider the fees of opposing counse...