Roberts v. Korn, Civ.A. 01-2113-CM.
| Decision Date | 01 March 2006 |
| Docket Number | No. Civ.A. 02-2536-CM.,No. Civ.A. 01-2113-CM.,Civ.A. 01-2113-CM.,Civ.A. 02-2536-CM. |
| Citation | 420 F.Supp.2d 1196 |
| Parties | Terresa ROBERTS, et al., Plaintiffs, v. Art KORN, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Bernard E. Brown, James A. Rynard, Jr., The Brown Law Firm, Kansas City, MO, for Plaintiffs.
Art Korn, Leawood, KS, Pro se.
James R. Wyrsch, Keith E. Drill, Marilyn B. Keller, Wyrsch Hobbs & Mirakian, Pc, Kansas City, MO, Gregory V. Blume, Overland Park, KS, for Defendants.
A jury trial on plaintiffs' claims against defendants Art Korn and Stephen Summers was held on May 9-12, 2005 in this court. The jury found for plaintiffs and against both defendants Korn and Summers and awarded plaintiffs punitive damages.1 This matter comes before the court on defendant Stephen Summers' Motion to Alter or Amend Judgment (Doc. 295), plaintiffs' Motion to Alter or Amend Judgment (Doc. 296), and plaintiffs' Motion for Awards of Attorney's Fees (Doc. 297).
Defendant Summers has moved to alter or amend the court's May 12, 2005 Judgment with regard to the actual damages against him. Defendant contends that he is jointly and severally liable for the actual damages, and thus the amount of actual damages he owes plaintiffs should be reduced by the amounts paid by other defendants. Defendant Summers specifically claims that he is entitled to a credit for the amounts that defendants Shawnee Mission Ford and James Nance paid to plaintiffs. Defendant Summers contends that if those amounts are considered, plaintiffs are not entitled to any recovery from him. Plaintiffs oppose defendant Summers' motion, claiming that defendant Summers' assertion of "satisfaction or payment or setoff' are affirmative defenses that defendant Summers waived by failing to plead them or raise during the drafting of the pretrial order in this case. Plaintiffs also contend that defendant Summers has provided no facts or evidence to support his assertion of what amounts were paid to plaintiffs or that the amounts were in payment for plaintiffs' actual damages. Finally, plaintiffs contend that the case law defendant Summers asserted in support of his motion to alter, primarily Haynes v. Manning, 717 F.Supp. 730 (D.Kan.1989), and the appeal of that case, Haynes v. Manning, 917 F.2d 450 (10th Cir.1990), actually support a "separate and individual liability" rule under the federal odometer law and not joint and several liability.
With regard to defendant Summers' arguments, the court finds that defendant Summers failed to plead any affirmative defense, as is required pursuant to Fed.R.Civ.P. 8(c), contending that plaintiffs had been fully compensated by other defendants. "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction ... contributory negligence ... payment, release, ... and any other matter constituting an avoidance or affirmative defense." Id. "The policy behind Rule 8(c) is to put plaintiff on notice well in advance of trial that defendant intends to present a defense." Clayman v. Starwood Hotels & Resorts Worldwide, 343 F.Supp.2d 1037, 1044 (D.Kan.2004) (citing Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 458 (10th Cir.1982)). In this case, the court finds that defendant Summers waived this defense by failing to raise it until after the conclusion of the jury trial of this matter.
Even if the court found that defendant Summers had not waived the defense, the court finds defendant Summers' arguments unpersuasive. As plaintiffs have pointed out, defendant Summers has provided the court with no facts or evidence to demonstrate the exact amounts that defendants Shawnee Mission Ford and James Nance paid to each of the plaintiffs or whether such amounts were paid in satisfaction of plaintiffs' actual damages on their federal odometer claims. Moreover, the court finds that the Tenth Circuit case, Haynes v. Manning, implicitly supports separate and individual liability under federal odometer law. 917 F.2d at 454 ().2 As a result, the court denies defendant Summers' Motion to Alter or Amend Judgment (Doc. 295).
Plaintiffs have moved to amend the court's May 12, 2005 Judgment to treble the actual damages awarded to plaintiffs on their federal odometer claims, pursuant to 49 U.S.C. § 32710, and to award plaintiffs their attorney fees pursuant to 49 U.S.C. § 32710, with such fees to be determined by a separate motion. Plaintiffs also request inclusion in the judgment of an award of prejudgment interest for each of the plaintiffs for the period between the sales of the vehicles and the date of judgment. In response to plaintiffs' motion to amend, defendant Summers3 reiterates his argument that he is entitled to credit for the amounts paid by other defendants in the case. Defendant Summers also argues that the jury did not find him liable for odometer roll back or conspiracy to evade dealer licensing laws, and thus, he is not liable for any of plaintiffs' odometer rollback claims or attorney fees pursuant to 49 U.S.C. § 32710.
The court first finds that trebling of the actual damages awarded to plaintiffs on their federal odometer claims is proper pursuant to 49 U.S.C. § 32710(a), which provides that: "A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater." Moreover, the jury found defendant Summers liable to all of the plaintiffs, as part of a partnership or joint venture with defendant Korn, for all of defendant Korn's misconduct, for which defendant Korn also admitted liability. Defendant Korn's misconduct included his "fraud, conspiracy, and violations of federal odometer law and breaches of implied warranties." See Jury Instruction No. 10; Verdict Form. Accordingly, trebling of the actual damages on plaintiffs' federal odometer claims for which defendant Summers is liable is appropriate pursuant to 49 U.S.C. § 32710(a).
The court next finds that plaintiffs are entitled to recover their attorney fees pursuant to 49 U.S.C. § 32710(b) from both defendants Korn and Summers. The court addresses plaintiffs' request for the specific amount of attorney fees below.
The court further finds that an award of prejudgment interest to plaintiffs for the period between the sales of the vehicles and the date of judgment is appropriate. This case was filed five years ago. The prejudgment interest is appropriate to compensate plaintiffs for their losses over the time spent recovering the losses, separate and apart from the actual damages and punitive damages they have been awarded by the jury. Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1288-89 (10th Cir.1998) () (quoting U.S. Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1256 (10th Cir.1988)). Moreover, in a case such as this where the jury found defendants liable for fraudulent and dishonest conduct, the equities do not preclude such an award. Id. at 1289. Accordingly, the court grants plaintiffs' Motion to Alter or Amend Judgment (Doc. 296) in its entirety.
Plaintiffs have moved, pursuant to Fed. R.Civ.P. 54(d)(2) and Local Rule 54.2 for an award of attorney fees against defendants Korn and Summers under 49 U.S.C. § 32710(b) of the federal odometer statutes and 15 U.S.C. § 2310(d), the Magnuson-Moss Warranty Act. Plaintiffs contend that an award of attorney fees is mandated by statute pursuant to 49 U.S.C. § 32710(b), and is discretionary under the Magnuson-Moss Warranty Act. Plaintiffs attached a statement of consultation between the parties, affidavits from plaintiffs' counsel and other experts supporting the rates used and the time expended on the case, and plaintiffs' counsel's time entries for the case.
The court follows a two-step process to determine an award of reasonable attorney fees and expenses. The initial estimate is calculated by multiplying the number of hours reasonably expended by a reasonable hourly fee, resulting in the "lodestar" amount. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The court may then adjust upward or downward from the lodestar as necessary. Blum, 465 U.S. at 888, 104 S.Ct. 1541.
The party moving for attorney fees "bears the burden of ... documenting the appropriate hours expended and the hourly rate." Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir.1998). To satisfy its burden, therefore, the party must submit "meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Id. at 1250 (citing Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983)). "The prevailing party must make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir.1998). The court will reduce the hours claimed if the attorneys' records are inadequate or fail to precisely document the time necessary to complete specific tasks. Hensley, 461...
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