Opinion
Civil No. A3-96-72.
January 16, 2001.
ORDER
Before the Court for review are plaintiffs' motions for taxation of disputed costs, (doc. #461), motion for attorneys' fees and related non-taxable expenses, (doc. #462), supplemental fee and cost request, (doc. #479), and defendant's, Champion Healthcare Corporation (Champion), motion for taxation of disputed costs, (doc. #465). These motions are taken up below.
As a preliminary matter the Court GRANTS Champion's motion for leave to exceed page limitation, (doc. #472), and DENIES Champion's motion for oral argument, (doc. #465(2)), and motion for hearing, (doc. #474). The Court further declares that Champion's motion to strike, (doc. #444) is MOOT.
The parties are well versed with the procedural and substantive history of this case; therefore, recitation by the Court is unnecessary.
I. COSTS
Both Champion and plaintiffs request costs as a prevailing party. Federal Rule of Civil Procedure 54(d) provides:
Type of Cost Champion Plaintiffs
Deposition 18,571.51 10,256.74 transcripts
TOTALS $51,992.03 $54,753.66
Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs. . . .
This rule codifies the presumption that the prevailing party is entitled to costs. Greaser v. State of Missouri, Dep't of Corr., 145 F.3d 979, 985 (8th Cir. 1998). It remains, however, only a presumption, as the district court retains the discretion to refuse to tax costs in favor of a prevailing party. Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1072 (8th Cir. 2000) (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 4637, 441-42 (1987)). Since the district court has the discretion to refuse costs, it goes without saying that the court also has substantial discretion in awarding the prevailing party an appropriate amount of costs. See id.
A prevailing party entitled to costs is the litigant in whose favor judgment is rendered regardless of whether the party is the plaintiff or defendant and regardless of the amount of damages awarded. Firefighters' Inst. For Racial Equality v. City of St. Louis, 220 F.3d 898, 905 (8th Cir. 2000). See also 10 Wright, Miller Kane, Federal Practice and Procedure § 2667 (3rd ed. 1998). Additionally, the voluntary dismissal of an action is sufficient to confer prevailing party status to a defendant on those claims. Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th Cir. 1997).
Reviewing this case, it is noted that on November 10, 1999, after over three years of litigation, eight of plaintiffs' claims were dismissed with prejudice (FLSA meal break claim, FLSA off-the-clock claim, FLSA exempt status claim, FLSA retaliation claim, FLSA willfulness claim, state law on-call claim, state law overtime claim, and state law retaliation claim) and three others were dismissed without prejudice (state law claims relating to meal break, Earned Time, and "Earned Time Plus"). The claims that were dismissed with prejudice were so dismissed upon the acquiescence and, in fact, insistence of the plaintiffs that they no longer pursued those claims. After the dismissal, the plaintiffs had two remaining claims in this action: an FLSA on-call claim; and an FLSA overtime claim. As correctly pointed out by Champion, plaintiffs prevailed on only one portion of their FLSA overtime claim relating to the failure to include on-call pay in the computation of overtime. Upon summary judgment consideration, the FLSA on-call claim and the FLSA overtime computation claim were resolved, in all other respects, in favor of Champion. In fact, at the time of summary judgment, the issue of including on-call pay in the overtime computation was moot since Champion had corrected its error in computation and paid all affected employees. Notwithstanding the correction, it was determined that plaintiffs were prevailing parties on this limited issue pursuant to the catalyst theory. Upon consideration of these facts, it can only be concluded that, overall, Champion was predominantly the prevailing party in this action. See Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995) (determining that defendants were the prevailing party where district court granted their motion for summary judgment on federal claims and declined to exercise supplemental jurisdiction on remaining state law claims).
Contrary to plaintiffs' suggestion, the fact that plaintiffs were deemed a prevailing party on one limited issue does not prevent the Court from deeming Champion the predominantly prevailing party in light of the other issues. See Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980) (district court did not err in ordering each party to bear its own costs when each party had prevailed on one or more of its claims, defenses, or counterclaims). See also Northbrook Excess Surplus v. Procter Gamble Co., 924 F.2d 633, 641-42 (7th Cir. 1991) (explaining that under Rule 54(d) prevailing party is the party who prevails as to the substantial part of the litigation).
In such a situation, Champion argues, the Court has three options: (1) award Champion all of its costs and refuse to award plaintiffs any costs based on their obstructive and haphazard manner of conducting this litigation; (2) apportion costs among the parties resulting in Champion receiving at least 13/14ths (93%) of its costs and plaintiffs receiving 1/14th of their costs; or (3) reduce the size of Champion's cost award to reflect its partial success, resulting in Champion receiving 93% of its costs. While any of these options would be appropriate in this case, the Court envisions a fourth approach: deny costs to both parties. See Computrol, 203 F.3d at 1072 (district court has discretion to refuse to tax costs); Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir. 1980) (concluding that where each of the parties has prevailed on one or more of its claims, defenses, or counterclaims, it is not an abuse of discretion to order each party to bear its own costs).
In the Court's view this is an appropriate case in which to make the parties bear their own costs. Several considerations have led to this conclusion. First, although plaintiffs, as a partial prevailing party, may be entitled to some award of costs under the FLSA, see 29 U.S.C. § 216(b), the Court cannot overlook their limited degree of success in this action. Plaintiffs request $54,753.66 for costs. It does not appear that plaintiffs have reduced their request based on their limited success. In fact, Champion points out that in several categories (service fees, deposition transcripts, witness fees, and photocopies) plaintiffs have requested costs that were not related to the limited issue upon which the class prevailed. The Court cannot accept the proposition, under the particular circumstances of this case, that plaintiffs are entitled to an award for all the costs incurred in this action despite their extremely limited success. Cf. Roy v. County of Lexington, 141 F.3d 533, 549 (4th Cir. 1998) (recognizing that district court retains discretion to apportion costs under 29 U.S.C. § 216(b)).
Moreover, even if the Court were to award plaintiffs some of their costs, since 29 U.S.C. § 216(b) does not preclude a prevailing defendant from recovering costs under Federal Civil Rule of Procedure 54(d), see Davis v. City of Hollywood, 120 F.3d 1178, 1181 (11th Cir. 1997), plaintiffs generally would be responsible to Champion for its costs. Champion, as explained above, is also a prevailing party since it received a partial judgment in its favor after successfully attacking plaintiffs' FLSA on-call claim and FLSA overtime computation claim on summary judgment. See Firefighters' Inst. For Racial Equality, 220 F.3d at 905 (prevailing party is a party in whose favor judgment is rendered). Thus, any award of costs would entail an apportionment among the parties. Instead of being consumed with apportioning costs, a much cleaner approach is to deny costs to both sides.
The Court is aware that this decision may seem to penalize Champion as the predominantly prevailing party. However, a district court's authority to deny costs is not limited to situations involving misconduct or other action worthy of penalty on the part of the prevailing party. See Greaser, 145 F.3d at 985 (declining to hold that the court's discretion to deny costs is limited to such situations); Association of Mexican-American Educators v. State of California, 231 F.3d 572, 592-93 (9th Cir. 2000) (en banc) (overruling previous cases suggesting that the only proper reason for denying costs to a prevailing party is to punish misconduct by that party). And, in fact, the decision is not meant as a punishment to Champion. Rather it is a recognition that this litigation was poorly managed. Plaintiffs accuse Champion of taking a "scorched earth approach" to this litigation and defending in the tradition of total warfare. Champion counters by arguing that plaintiffs conducted this litigation in an "obstructive and haphazard manner, pursued unnecessary issues, and incurred unreasonably large costs." The Court believes there is a grain of truth to both allegations.
Certainly, plaintiffs' case could have been better focused. Instead, the claims were continually modified, class representatives for each claim were never clearly identified, actions were pursued in both state and federal courts by the plaintiff class, and initial damage disclosures were never produced. And certainly, counsel for the parties could have interacted more professionally. The docket is replete with numerous discovery motions, allegations of abuse, requests for sanctions, and motions to strike filed by the parties. The sheer number of such motions is an indication of a break down in the working relationship. An award of costs would deteriorate the relationship further. While this normally would not be an important consideration, the Court is aware that the related state case is not finally resolved and the federal case is before the Eighth Circuit Court of Appeals. Under these circumstances, the relationship between the parties and counsel is a legitimate concern for the Court.
Finally, the Court is also concerned with the high amount of costs requested and the ability to pay on behalf of the individual class members. Champion requests $51,992.03. Spreading this amount out over all of the class members would still result in a substantial expense owed by the individual nurses and healthcare workers. The Court is unwilling to impose such a substantial cost.
Therefore, under the particular facts of this case, the Court in the exercise of its discretion pursuant to Federal Rule of Civil Procedure 54(d) declines to award costs to either of the parties, since each of them prevailed, at least in part, in this Court. Testa v. Village of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996) (district court did not abuse its discretion in ordering each party to bear its own costs considering the mixed outcome of the claims); Allen v. O'Hara, Inc. v. Barrett Wrecking, Inc., 898 F.2d 512, 517 (7th Cir. 1990) (district court did not abuse its discretion in denying costs where both parties prevailed in part); Johnson, 623 F.2d at 1282 (no abuse of discretion to order each party to bear its owns costs where each party prevailed in part); Armour Co. v. Nard, 463 F.2d 8, 9-10 (8th Cir. 1972) (same).
II. ATTORNEYS' FEES
Plaintiffs' counsel move the Court for an award of attorneys' fees and related non-taxable expenses. They request: $112,925.15 for attorneys' fees and $13,048.10 for related non-taxable expenses.
The breakdown of requested fees in this motion is as follows:
a. Attorney Fees: $92,739.50 requested by Ohnstad Twichell firm; $20,185.65 requested by Bredahl Assoc.
b. Hours: 761.20 claimed by Ohnstad Twichell firm; 161.485 claimed by Bredahl Assoc. (calculated by Court)
c. Related Non-Taxable Expenses: $12,853.35 for Ohnstad Twichell; $96.93 for costs expended by Bredahl Assoc. and covered by Ohnstad Twichell Trust Account; $97.82 for costs of Bredahl Assoc.
Attorneys' fees for prevailing plaintiffs are recoverable pursuant to 29 U.S.C. § 216(b) which provides that "the court . . . shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." While the award of fees for prevailing plaintiffs is mandatory in an FLSA action, the district court has wide latitude to determine the amount of the fee. Uphoff v. Elegant Bath, Co., 176 F.3d 399, 406 (7th Cir. 1999). The determination of a reasonable attorneys' fee under the FLSA is within the sound discretion of the district court. Id.
The Eighth Circuit has recently explained that in determining an appropriate award of attorneys' fees, a trial court should undertake a two-part analysis: first, determine the claims on which the plaintiff prevailed and, second, on the claims on which plaintiff prevailed, determine what amount of attorneys' fee is appropriate, taking into consideration, the extent of plaintiff's success on those claims. Burks v. Siemens Energy Automation, Inc., 215 F.3d 880, 882 (8th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)). The Court has already determined that plaintiffs prevailed on the single limited issue of failing to include call pay in the overtime computation. This error resulted in a recovery of $5,707.37 for plaintiffs for the two periods of irregular overtime computation, along with a recovery of an additional $5,707.37 in liquidated damages. Thus, the issue for the Court is determining a reasonable fee considering plaintiffs' limited success in this action.
In determining a reasonable fee, a court generally utilizes what is called the lodestar method. See H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991). Lodestar is determined by multiplying the reasonable number of hours expended by the market rate. Uphoff, 176 F.3d at 407. Market rate equals the rate that lawyers of similar ability and experience in the community charge their paying clients for the type work in question. Id. The attorney's actual billing rate for comparable work is presumptively appropriate to use as the market rate. Id. (citations omitted).
A. Market rate
Champion argues that plaintiffs' counsel have not met their burden of proving the market rate. See Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 554 (7th Cir. 1999). As correctly noted by Champion, the burden of establishing market rate rests with the fee applicant. Id. In an effort to meet this burden, plaintiffs' counsel offer an affidavit establishing the following hourly rates:
Associate Attorney Brenda Foyt: $90-110
Associate Attorney Pete Dosland: $135
Shareholder Dean Rindy: $135
Shareholder Robert Hoy: $135-145
Paralegals: $40-80
Shareholder Marshall McCullough $130-135
Shareholder Steven McCullough $125-135
Shareholder Duane Breitling $125-135
Shareholder Mike Nelson: $125-145
Shareholder Jeff Bredahl: $125
Associate Tracy Gompf: $125
As these attorneys have fee-paying clients, their actual billing rate within the community is presumptively appropriate to use as the market rate. Id. at 555. Moreover, the Court is satisfied that these rates are reasonable, if not low, in comparison to other attorneys within the Fargo-Moorhead community with equivalent ability and experience. Consequently, the Court will utilize the figures offered by plaintiffs' counsel as the market rate.
B. Reasonable hours
The next step in the lodestar calculation is to determine the number of hours reasonably expended on the claims. Burks, 215 F.3d at 882. The general rule is that fees must be reasonably expended: services that are redundant, inefficient, or simply unnecessary are not compensable. Jenkins v. State of Missouri, 127 F.3d 709, 716 (8th Cir. 1997). Consequently, hours that were not reasonably expended must be excluded from the initial fee calculation. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Counsel are obligated to exercise billing judgment with regard to their fee application meaning that "hours that are not properly billed to one's client also are not properly billed to one's adversary." Id. The fee applicant bears the burden of establishing the reasonable amount of hours expended on the claims. See id. at 433.
Plaintiffs' counsel collectively claim 922.685 hours of work. Determining the reasonable hours expended in this case is extremely difficult primarily for two reasons: plaintiffs had limited success in this case and plaintiffs' counsel's records are imprecise and vague. Turning to the degree of success, the Court notes that in the overall context of this case, plaintiffs' prevailing issue of correctly including call pay into the overtime computation was tiny. This fact is underscored by the recognition that Champion voluntarily corrected and repaid the affected employees absent any court order to do so. Nevertheless, the Court is not prepared to deem plaintiffs' success nominal and resists Champion's argument to do so.
The success plaintiffs enjoyed, while small, was important and benefitted not only themselves but other employees. Additionally, this benefit extends into the future since Champion presumably has developed a computer system that correctly computes overtime. The Court in no way demeans plaintiffs' or their counsel's efforts. However, in setting a reasonable fee the most critical factor for the Court is the degree of success the party obtained. Hensley, 461 U.S. at 436. As noted above, in this case that degree of success is very small: reduced to numbers, it equates to about $11,414.74.
Turning to counsel's record keeping, the Court's review of the four plus years of WIPs from the two separate firms involved in plaintiffs' case indicates that winnowing which hours were devoted to plaintiffs' prevailing claim would be akin to finding the proverbial needle in a haystack. As Champion points out, it requested that plaintiffs' counsel keep detailed records which specifically allocated the time spent on each of plaintiffs' numerous state and federal claims. Counsel for plaintiffs declined, however, to keep such specific records. As a result, they were forced to go over four plus years of WIPs to try to reconstruct how much time was spent on their prevailing issue. Attorney Nelson recognizes in his affidavit that he has done his best to estimate that amount of time.
Upon completing the task, Attorney Nelson, on behalf of his firm, requests 137.9 hours for work done before the overtime correction was made and 623.3 hours for work done after the correction was made. Nelson indicates that this represents 11.31% of all time expended by his firm in this case. Additionally Attorney Bredahl, utilizing Nelson's 11.31% approach, requests approximately 161.485 hours for work done by his firm. This amounts to a total of 922.685 hours of work. Accepting that Attorneys Nelson and Bredahl have made a good faith and honest effort to identify the hours expended on the limited issue upon which plaintiffs prevailed, the Court believes that this method of reconstructing time is fraught with subjectivity, uncertainty and unreliability.
This case contained as many as thirteen different federal and state claims made by a class of plaintiffs over the course of a very long litigation life — over four years. Eleven claims were, in fact, dismissed prior to the date set for trial. To complicate matters even further, not every plaintiff in the class had exactly the same claims: for instance, some had overtime claims and some did not; some presented state claims and some did not. Additionally, the claims an individual plaintiff presented changed over the course of the litigation so that, at some points, the Court and defense counsel would believe that a plaintiff asserted a particular claim only later to learn that that plaintiff no longer pursued the particular claim but another. Under these circumstances a reconstruction of time, while not per se precluding an award of attorney's fees, see MacDissi v. Valmont Industries, Inc., 856 F.2d 1054, 1061 (8th Cir. 1988), must be viewed with a high level of skepticism.
Aside from the obvious difficulties in reconstructing hours in this case, Champion also objects that the hours plaintiffs' counsel propose are disproportionate, duplicative, vague, and unnecessary. For example, Champion points out that 93% of the overtime correction payments were made by September of 1997, yet the Ohnstad Twichell firm alone requests 137.9 hours for work done before September of 1997 and 623.3 hours of work done after the corrections were made. The hours sought after September 1997 amount to almost 4 ½ times those sought before that date. The Court is astounded and concerned by such a disproportionate request. As another example of improperly requested time, the Court notes that plaintiffs' counsel have charged for time devoted to plaintiffs that did not assert the claim upon which the class prevailed. Although the Court could continue with more examples of vague entries and duplicative efforts, it finds it unnecessary. It is sufficient to say that the hours must be reduced as the Court cannot, in good conscience, justify expending 922.685 legal services hours on the plaintiffs' prevailing claim.
In reducing the hours, the Court has two choices: review the WIPs and attempt to identify and eliminate the hours spent on non-compensable claims, duplicative time, and unnecessary efforts or simply reduce the hours to reflect plaintiffs' limited success and imprecise records. See H.J. Inc., 925 F.2d at 260 (citing Hensley, 461 U.S. at 436-37). Of course, it would be preferable if the Court could reduce the time based on the non-compensable claims, duplicative time and unnecessary efforts. See id. at 261. That, however, is impossible. The Court is in no position to review over four years of WIPs from two separate law firms and identify which hours of work relate to plaintiffs' prevailing claim. Such a review would be exhaustive and fraught with subjectivity and error by the Court as well, especially considering the vagueness of some of the entries and the interrelatedness of the claims presented. Consequently, an across the board cut is required. The question is how much. In this regard, the Court is cognizant that it must consider, as a part of reasonableness, the amount of time that could ever reasonably be spent on an issue of this nature. See Gumbhir v. Curators of Univ. of Missouri, 157 F.3d 1141, 1146 (8th Cir. 1998). This inquiry is required since attorneys "should not be permitted to run up bills that are greatly disproportionate to the ultimate benefits that may be reasonably attainable." Id.
The Court determines that given the limited attention devoted to the prevailing claim in motions and briefs before this Court, and that Champion made the corrections and paid the affected employees before the plaintiffs had even sought a court order requiring it to do so, the plaintiffs' requested hours should be reduced by 75%. Accordingly, plaintiffs' compensable time is reduced to 230.67 hours. This award is more than adequate, if not in fact, generous, to compensate plaintiffs' counsel.
Utilizing Exhibit C from Attorney Nelson's Affidavit in Support of Motion for Fees and Attorney Bredahl's Affidavit, the Court calculates the following: Totals: 230.665 $28231.33
C. Related Non-Taxable Expenses
In addition to their request for costs and attorneys' fees, plaintiffs also request an award for related non-taxable expenses. Plaintiffs' counsel, following the same 11.31% approach, request $12,853.35 for the Ohnstad Twichell firm, $96.93 for Bredahl Assoc. costs that were paid through Ohnstad Twichell Trust Account, and $97.82 in costs for Bredahl Assoc. These additional amounts represent meeting expenses, office rental fees, research materials, Westlaw research, long distance telephone calls, faxes, postage, materials, UPS services, secretary of state filing fees, certified copies, mail services, PACER, staff travel, in-house photocopies, expert witness fees, and newspaper publication costs. Champion resists any award of these expenses and alternatively argues that any award of expenses should be greatly reduced.
Expenses not properly taxed as costs under 28 U.S.C. § 1920 may be included as a part of reasonable attorney's fees under civil rights and other fee shifting statutes. See Calderon v. Witvoet, 112 F.3d 275, 276 (7th Cir. 1997); Pinkham v. Camex, Inc., 84 F.3d 292, 295 (8th Cir. 1996); Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1195); Kelley v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988). The general rule appears to be that the expenses must be reasonable and of the kind normally billed to the client and not absorbed by the law firm as overhead expense. Jane L., 61 F.3d at 1517; Neufeld v. Searle Lab., 884 F.2d 335, 342 (8th Cir. 1989). In applying this rule, the Court believes that while the attorney-client agreement may provide some basis for determining which expenses are customarily billed to a client, the Court is certainly not bound by such an agreement.
The Court finds that the expenses claimed for long distance telephone calls, faxes, postage, mail services, UPS costs, newspaper publications, fees for the secretary of state and certified copies are reasonable and are of the type normally billed to clients. Pinkham v. Camex, Inc., 84 F.3d at 295 (costs for long distance, faxes, messenger and express mail are expenses normally charged to clients); Kelley v. Bowen, 862 F.2d at 1335 (telephone calls, postage, and air courier costs normally billed). Photocopying expenses are also allowable as a charge normally billed to clients. See Northcross v. Board of Educ. of the Memphis City Sch., 611 F.2d 624, 639 (6th Cir. 1979) (reasonable photocopying expenses are recoverable). There is some concern over whether the charges for photocopying expenses are reasonable; Ohnstad Twichell alone requests close to $12,000. The Court believes that at first blush, the amounts for photocopying are shocking; however, they likely are reasonable given the complexity, length, and size of this litigation. The Court will not strike the requests as unreasonable or excessive. The Court, however, is concerned with the per page charge for copies assessed by Bredahl Assoc. Upon reviewing their submitted billable worksheets for expenses, it appears that Bredahl Assoc. charged $.20 per page per copy. The set charge was $.15 per page. Consequently, the request will be reduced accordingly.
The Court calculates that Bredahl Assoc. made 2629 copies. At a rate of $.15 per copy, this amounts to $394.35.
The Court, in its discretion, does not approve of other inappropriate expenses. See Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1074 (8th Cir. 1991) (concluding that court did not abuse its discretion in denying expenses for telephone calls, expert witnesses, travel, photocopies, food and lodging, computer legal research, depositions and filing fees). First, the Court disapproves of the meeting expenses as vague and inappropriate. These charges apparently reflect in-town lunch expenses. For example, a typical entry in the Ohnstad Twichell WIPs notes "10/28/99 Valentino's — DHHS Meeting $40.00." Such entries do not indicate whether the clients were involved or whether the attorneys ate lunch out and charged the clients. Second, staff travel time is excluded. Although it may be appropriate to bill for attorney travel time for trips in different states or cities, see Neufeld, 884 F.2d at 342 (approving of travel expenses where attorneys traveled to Florida and Illinois to take depositions), it is unreasonable to charge for travel time between two offices of the same firm within the same metropolitan area. Other categories of typical overhead expenses are also excluded, notwithstanding any agreement by the client to cover the expenses; these include: rental of additional office space; research materials; materials and paper. Costs such as these should be absorbed by the firm overhead. Additionally, the expert witness fees expense is disapproved as this expert did not address the issue upon which plaintiffs prevailed.
Finally, the expenses for using Westlaw, and similarly PACER, must be excluded. See Standley v. Chilhowee R-IV School Dist., 5 F.3d 319, 325 (8th Cir. 1993); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir. 1983). While this Court may disagree, it is the clear and binding law of this circuit that the expense of "computer-based legal research must be factored into the attorneys' hourly rate, hence the cost of the computer time may not be added to the fee award." Standley, 5 F.3d at 325. See also Emmenegger v. Bull Moose Tube Co., 33 F. Supp.2d 1127, 1137 (E.D.Mo. 1998) (applying law of circuit to disallow computer assisted legal research).
Excluding the above categories from the expenses results in a preliminary amount of $22,456.14 for the Ohnstad Twichell firm, $855.56 for Bredahl Assoc. expenses paid through the Ohnstad Twichell Trust Account, and $627.83 for Bredahl Assoc. This equals a total preliminary amount of $23,939.53. Following Attorney Nelson's 11.31% approach, this results in a combined request of $2,707.56. Utilizing the Court's 75% reduction, this amounts to an appropriate expense award of $676.89.
D. Hours Expended on Preparation of Attorneys' Fees Motion
Plaintiffs' counsel have submitted a supplemental motion for fees and costs related to the preparation of their motion for attorney fees. Counsel request an additional $11,086.00 in fees and $32.03 in costs. Although plaintiffs have not separately charted the hours, the Court calculates that 82.9 hours of work are requested.
Under most fee shifting statutes, courts have allowed parties to seek a reasonable fee for time spent preparing and defending an application for attorneys' fees. See, e.g., Wyent v. Okst, 198 F.3d 311, 316 (2nd Cir. 1999) (discussing § 1988 fees); Vaughn v.Heckler, 860 F.2d 295, 296 (8th Cir. 1988) (awarding partial fees for time spent preparing EAJA fee application). The Court's review indicates that plaintiffs' counsel have included time spent preparing their Rule 54(d) motion for costs and responding to Champion's motion regarding the same. Since the Court has determined that each party will bear its own costs, the time spent preparing and responding to the costs motions also is not allowed. After reviewing and considering the time entries, the Court calculates that approximately 37.6 hours were devoted to the issue of costs. Accordingly, that amount of time is deducted which leaves 45.3 hours remaining.
Notwithstanding the Court's reduction, spending 45.3 hours on a fee application is unreasonable. Considering the amount of time allowed on the merits of the case (230.67), this amounts to roughly 20 minutes for fee application per one hour of merits. As a comparison, in Uphoff, the district court determined that 9.9 hours of attorney time in connection with the preparation of a fee motion was unreasonable and reduced the billable hours to 1.6. 176 F.3d at 411. The court of appeals upheld the reduction deeming it reasonable in light of the number of hours counsel spent litigating the merits of the case: under 100 hours. Id. Other cases from the Seventh Circuit Court of Appeals are similar: Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988) awarding 1.6 hours as reasonable time spent for fee motion preparation (disallowing 15 minutes to preparing fee petition for every hour spent on merits); Kurowski v. Krajewski, 848 F.2d 767 (7th Cir. 1988) awarding 1.6 hours (in light of 140 hours on the merits) as reasonable time spent for fee motion preparation amount of time; Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 finding it unreasonable to spend approximately same number of hours on fee petitions as merits (9 hours on fee petition and 10.8 hours on merits).
One apparent reason that plaintiffs' counsel may have spent so much time on fee preparation is that their records were not precise from the beginning. Nelson notes that he had to go back through their WIPs and estimate how much time was actually spent regarding the issue on which they prevailed. This lack of clear record keeping should not be used as a way to increase the amount of fees awarded to counsel. See Farrar, 506 U.S. at 115 (noting that fee awards were never intended to produce windfalls to attorneys). This is especially true in light of Champion's numerous requests that plaintiffs' counsel keep specific time records.
In light of these circumstances, and finding the case-law from the Seventh Circuit persuasive, the Court reduces the hours for the fee application to 3.69 hours. The Court has already determined that no more than 230.67 hours could have reasonably been devoted to the merits of the issue upon which plaintiffs prevailed. Adopting the approach of 1.6 hours fee time per 100 hours merit time, see Uphoff, 176 F.3d at 411, the Court calculates a reasonable amount of time for preparation of a fee application as follows: 230.67 x .016 = 3.69 hours. Instead of apportioning 3.69 hours between counsel and paralegal time and since the majority of time spent on the fee application was counsel time, the Court awards these hours at counsel's rate of $145 per hour. Accordingly, the sum of $535.05 is awarded.
The additional request for $32.03 in costs for Westlaw research will not be allowed for the reasons expressed above.
III. Conclusion
Plaintiffs' motion for taxation of disputed costs, (doc. #461), is DENIED. Plaintiffs' motion for attorneys' fees and related non-taxable expenses, (doc. #462), is GRANTED in the amount of $28231.33 for attorneys' fees and $676.89 for non-taxable expenses. Champion's motion for taxation of disputed costs, (doc. #465), is DENIED. Plaintiffs' supplemental motion for attorneys' fees and costs, (doc. #479), is GRANTED in the amount of $535.05.
IT IS SO ORDERED.
a. Brenda R. Foyt: 11.5 hours reduced by 75% = 2.875 @ $ 90 p/h= $ 258.75 13.3 hours reduced by 75% = 3.325 @ $110 p/h= $ 365.75 b. Robert G. Hoy: 2.7 hours reduced by 75% = .675 @ $135 p/h= $ 91.13 1.2 hours reduced by 75% = .30 @ $145 p/h= $ 43.50 c. Dean A. Rindy: .1 hours reduced by 75% = .025 @ $135 p/h= $ 3.37 d. J. Peter Dosland: 3.4 hours reduced by 75% = .85 @ $135 p/h= $ 114.75 .3 hours reduced by 75% = .075 @ $145 p/h= $ 10.88 e. Barbara A. Just: 1.5 hours reduced by 75% = .375 @ $ 80 p/h= $ 30.00 f. Reveling: 25.5 hours reduced by 75% = 6.375 @ $ 55 p/h= $ 350.63 2.9 hours reduced by 75% = .725 @ $ 70 p/h= $ 50.75 g. Anja Kalvoda: .5 hours reduced by 75% = .125 @ $ 40 p/h= $ 5.00 h. M. McCullough: .1 hours reduced by 75% = .025 @ $130 p/h= $ 3.25 .1 hours reduced by 75% = .025 @ $135 p/h= $ 3.37 i. S. McCullough: .2 hours reduced by 75% = .05 @ $125 p/h= $ 6.25 3.6 hours reduced by 75% = .9 @ $130 p/h= $ 117.00 3.98 hours reduced by 75% = .995 @ $135 p/h= $ 134.33 j. Duane Breitling: 4.6 hours reduced by 75% = 1.15 @ $125 p/h= $ 143.75 .8 hours reduced by 75% = .2 @ $130 p/h= $ 26.00 20.1 hours reduced by 75% = 5.025 @ $135 p/h= $ 678.37 k. Robin D. Busch: 136.7 hours reduced by 75% = 34.175 @ $ 80 p/h= $2734.00 l. Michael Nelson: 135.0 hours reduced by 75% = 33.75 @ $125 p/h= $4218.75 49.3 hours reduced by 75% = 12.325 @ $130 p/h= $1602.25 107.8 hours reduced by 75% = 26.95 @ $135 p/h= $3638.25 236.0 hours reduced by 75% = 59.0 @ $145 p/h= $8555.00 (23185.08) m. Bredahl Assoc:161.485 hours reduced by 75% = 40.37 @ $125 p/h= $5046.25The Court calculates that Bredahl Assoc. made 2629 copies. At a rate of $.15 per copy, this amounts to $394.35.