May v. F/V Lorena Marie, O.N. 939683 et al

Filing 83

JDR ORDER granting Motion 74 for Reconsideration of Order filed at Docket 73. The Court finds that the Defendant shall compensate Plaintiff for fees in the amount of $1,240.00 for attorney Brennan, costs in the amount of $514.28 f or attorney Brennan, fees in the amount of $14,105.20 for attorney Gibbons and costs in the amount of $1,277.98 for attorney Gibbons. The total compensation due to Plaintiff from the Defendant is $17,137.46. Order signed by Judge John D. Roberts. (JAM, Chambers Staff)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

RAYMOND MAY,
Plaintiff,
Case No. 3:09-cv-00114-SLG-JDR

vs.
F/V LORENA MARIE, Official No.
939683, her Tackle, Apparel, Boats,
Appurtenances, In Rem; JAMES
SKONBERG and JANE DOE
SKONBERG, husband and wife, In
Personam,

ORDER REGARDING MOTION
TO RECONSIDER COSTS AND
FEES FOR DISCOVERY
VIOLATIONS
Docket 74

Defendants.

In the Court’s Order Regarding Motion to Compel Production of Photos
and Film or for Application of Spoliation of Evidence Rule at Docket 67, the Plaintiff
was awarded costs and fees associated with the depositions of Devon Skonberg
and Darren Muller on June 7 and June 9, 2011 and the relevant costs for the filing

of Plaintiff’s Motion to Compel Production of Photos and Film or for Application of
Spoliation of Evidence Rule at Docket 41.
At Docket 70, James Brennan filed his Declaration regarding his
relevant costs and fees, totaling $2,887.28. At Docket 71, Steven Gibbons filed the
same, with relevant costs and fees totaling $21,708.73.1
Following the issuance of the Court’s Order at Docket 73, Defendant
filed a Motion for Reconsideration of the Court’s November 17, 2011 Order
Regarding Costs and Fees for Discovery Violations at Docket 74. The Court granted
that Motion at Docket 75 and instructed the parties to file calculations in the Court’s
Order at Docket 76. Instead of filing calculations, Plaintiff filed Plaintiff’s Response
to Motion for Reconsideration as to Award of Fees and Costs at Docket 77.
Defendant filed a proposed calculation of costs and fees at Docket 78.
I.

Procedural History

Here, the Defendant failed to preserve evidence he reasonably should
have known was relevant to the case.2 Following a determination that the Defendant
failed to comply with discovery rules, the Court issued an order finding that the
1

Mr. Gibbons calculation for his total fees appears to be off by $10.00. The
Court’s calculation is that the fees should total $19,019.50. Additionally, Mr.
Gibbons did not actually provide the Court with a final calculation of relevant
costs and fees. But, based on the information in his filing, the Court believes the
relevant costs and fees total $21,708.73.
2

See Docket 67.

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Defendant should pay reasonable costs and fees associated with Plaintiff’s Motion
to Compel Production of Photos and Film or for Application of Spoliation of Evidence
Rule at Docket 41. The Court granted Plaintiff leave to re-depose Devon Skonberg
and Darren Muller in order to determine whether the missing evidence was
retrievable and whether the evidence was likely to have captured the collision of the
boats, directly effecting the issue of fault.3 The Court ordered the Plaintiff to file
summaries of reasonable costs and fees associated with the filing of the Motion at
Docket 41 and the depositions.4
The attorneys for the Plaintiff, Steven V. Gibbons and James T.
Brennan filed their Declarations at Dockets 70 and 71. The Court waited seven (7)
days and then issued its order calculating costs and fees in the amount of
$24,596.46 in accordance with the Court’s Order at Docket 67. Defendant then filed
a Motion to Reconsider.5 After reviewing the filings of both parties regarding
reconsideration, the Court makes the following findings regarding reasonable costs
and fees related to the filing of Plaintiff’s Motion at Docket 41 and the depositions of
Devon Skonberg and Darren Muller in June of 2011.
3

Order Regarding Motion to Compel Production of Photos and Film or for
Application of Spoliation of Evidence Rule [41]; Motion to Quash Depositions of
Darren Muller and Devin [sic] Skonberg and for Sanctions [44]; and Plaintiff’s
Motion to Re-Open Discovery on a Limited Basis [48], Docket 57.
4

Docket 67.

5

Docket 74.

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II.

Legal Arguments

The Defendant urges the court to employ the “lodestar” method for
calculating reasonable costs and fees. In Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, the Supreme Court applied the “lodestar” method to calculate
appropriate attorney’s fees.6 The lodestar method requires a court to determine
“[t]he number of hours reasonably necessary to perform the legal services for which
compensation is sought” and then multiple that by a reasonable hourly rate for the
attorney who is providing the service.7 In Pennsylvania, the Supreme Court cited
their decision in Blum v. Stenson wherein the court found that when an attorney
applying for compensation for fees “has carried his burden of showing that the
claimed rate and number of hours are reasonable, the resulting product is presumed
to be the reasonable fee.”8
Defendant urges the court to consider a downward departure from the
lodestar calculation arguing that the Plaintiff did not fully succeed in gathering the
penalties he sought in his Motion to Compel.9 Defendant cites INS v. Jean10 and

6

478 U.S. 546 (1986).

7

Id. at 553.

8

Id. at 564 (quoting Blum, 465 U.S. 886, 897 (1984) (emphasis added)).

9

Docket 74, p. 6.

10

496 U.S. 154 (1990).

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Murakami v. University of Alaska11 in support of this request. In INS, the court stated
that the district court should consider the relative success of the party applying for
costs and fees in the court’s determination of the amount.12 In Murakami, Judge
Beistline of the Alaska District Court considered “the relative success of the parties”
in his determination of costs and fees.13
Plaintiff sought alternative remedies in his Motion at Docket 41. Plaintiff
requested the Court apply the Establishment Rule, or Spoliation Doctrine, and make
a finding that due to Defendant’s failure to preserve evidence, the facts Plaintiff
alleges would have been evidenced in the lost videos and images is presumed to be
true. Plaintiff also asked for costs and fees associated with the filing of the motion.
Spoilation is the “destruction or material alteration of evidence or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.”14 The court’s ability to impose sanctions comes from its

11

No. F030041CVRRB, 2005 WL 1355113 (D. Alaska June 1, 2005).

12

496 U.S. at 163 n. 10 (citing Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)).
13

2005 WL 1355113, *1.

14

West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d. Cir. 1999)
(citing Black’s Law Dictionary, 1401 (6th ed. 1990)).
09-cv-114-SLG-JDR Order on Reconsideration of Fees.wpd

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“inherent power to control the judicial process and litigation . . . .”15 The Court has
already determined that the Defendant should be subject to sanctions for his actions.
The courts may employ a broad range of sanctions for discovery and
spoliation violations. In this matter, the Plaintiffs sought the actual missing evidence
or, in the alternative, adverse inferences as their preferred remedy.16 Instead, after
it became apparent that the Defendant could not now locate the missing evidence,
the Court chose to employ the lesser remedy of sanctions. In response to the
Motion at Docket 41, the Court did re-open discovery and allow the Defendant one
more opportunity to locate the evidence it should have previously discovered and for
Plaintiff to re-depose the persons who took the images.17
Examining Defendant’s argument regarding Plaintiff’s “failure” to prevail
on his Motion at Docket 41, it is first notable that Plaintiff “failed” to locate the
missing evidence only because Defendant failed to preserve it. Secondly, Plaintiff
succeeded in reopening discovery in order to conduct further depositions and give
the parties another opportunity to locate the missing images. Finally, the Court did
not find that the Defendant acted maliciously in his failure to preserve the missing
evidence and so chose to employ the lesser sanction of costs and fees, as opposed

15

Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).

16

Docket 41, p. 11.

17

Docket 57.

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to the Plaintiff’s preferred remedy of an adverse inference.18 Therefore, Plaintiff only
“failed” on one ground, that of a finding that Defendant’s actions merited a lesser
sanction than the one which was most desired.
Defendant also employs the Court to decease the final award of costs
and fees on the basis of “billing judgment” and redundant work by two attorneys.
The Court addresses these arguments below.
III.

Analysis of Submitted Costs and Fees

The Court will re-examine Plaintiff’s submitted costs and fees in light of
the lodestar analysis and the decisions in INS and Murakami and the analysis
contained above. Each itemized entry is detailed below and is determined to the
best of the Court’s ability based on the applicable law and the pleadings filed by the
parties.19
A.

Costs and Fees Submitted by James T. Brennan

Mr. Brennan practices in Anchorage, Alaska, and is local counsel for
Plaintiff in this matter. He has extensive practice experience in admiralty law and
charges a fee of $250/hour pursuant to an agreement with Mr. Gibbons and the
Plaintiff. The Defendants argue that they should not be required to pay for the work
of two attorneys and that Mr. Brennan’s tasks should be deemed secretarial and

18

Docket 67.

19

The Court has rounded up to the nearest decimal point in its calculations.

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billed at a rate of $175/hour. Plaintiff argues that the figures calculated by the Court
in the first Order at Docket 67 should remain undisturbed.
The first prong of the lodestar analysis requires the court to examine the
fees submitted for approval. The Court finds that Mr. Brennan’s rate of $250/hour
is reasonable. The Court spends more time on this topic with respect to Mr. Gibbons
in section III (B) below. The same logic and analysis applies to Mr. Brennan’s fee.
The Court also finds that $175/hour is an appropriate rate for purely administrative
tasks.

The Defendant suggested this fee amount and Plaintiff did not file a

competing suggestion.
The second prong requires the court multiple the fees by a reasonable
hourly wage. Mr. Brennan is serving as local counsel pursuant to the Court’s
approval of Mr. Gibbons’ Pro Hac Vice application.20 It is the Plaintiff’s prerogative
to hire two attorneys to pursue his legal matters. Regarding the rate charged by Mr.
Brennan, the Court weighs the nature of his work in each of the following itemized
analyses. As to the Defendant’s objection to the billings by two attorneys, the Court
will consider that issue when making the final fee determination at the conclusion of
this order.
1.

Fees

20

Motion and Application of Non-Resident Attorney for Permission to
Appear and Participate in the United States District Court for the District of
Alaska, Docket 6.
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Mr. Brennan included entries for fees for the following dates in his filing
at Docket 70.
•

3/25/2011: Conversation with Gibbons; Review files re Darren Muller; Notice
of Deposition; Subpoena; Service Instructions. Time = 0.58; Amount =
$145.00. The Court can find no record of the conversation noted in Mr.
Gibbons declaration. This portion of the entry is omitted and will not be
compensated.21 As the entry does not specify the breakdown of the time
between the five (5) activities noted, the Court determines that each activity
listed took 1/5 of the total time listed. As such, the time is reduced by 1/5. Of
the remaining tasks, half of the time is deemed administrative and billed at a
rate of $175/hour. The remaining time is billed at the attorney rate of
$250/hour. Revised: Time = 0.46 hours; Amount = $97.75.

•

3/28/2011: Research re witness fee. Time = 0.20; Amount = $50.00.
Presumably, this witness fee research pertains to the fee charged in the costs
section of Mr. Brennan’s declaration regarding Devon Skonberg. The time
billed regarding Defendant Skonberg is not appropriate as the Court granted
Defendant’s Motion to Quash this deposition (Docket 44). Revised: Time =
0.00; Amount = $0.00.

•

3/28/2011: Conversation with Gibbons; Notice deposition of Devon Skonbert;
Subpoena duces tecum; Letter to Skonberg; Arrange Service. Time = 0.50;
Amount = $125.00. The time billed regarding Defendant Skonberg is not
appropriate as the Court granted Defendant’s Motion to Quash Skonberg’s
Deposition (Docket 44). The conversation with Mr. Gibbons is appropriately
billed at the attorney rate of $250/hour. The Court divides the billed time into
five parts, allowing for 1/5 of the billed time for the conversation with Mr.
Gibbons. Revised: Time = 0.10; Amount = $25.00.

•

3/29/2011: Review motion to compel, declarations, order; Correct typos; Add
exhibits. Time = 0.50; Amount = $125.00. The Court believes that this is an
appropriate billing and use of attorney time and declines to modify the
compensation sought. Revised: Time = 0.50; Amount = $125.00.

21

See Green v. Baca, 225 F.R.D. 612, 615 (C.D.Cal. 2005).

09-cv-114-SLG-JDR Order on Reconsideration of Fees.wpd

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•

3/29/2011: Finalize, file pleadings. Time = 0.25; Amount = $62.50. This entry
is properly billed as attorney time devoted to the preparation of filing related
to Docket 41. Revised: Time = 0.25; Amount = $62.50.

•

3/29/2011: Conversation with VPSO office; Conversation with Kodiak
Troopers; letters to Troopers re service of subpoena. Time = 0.42; Amount
= $105.00. These tasks are administrative and are more appropriately billed
at the rate of $175/hour. Revised: Time = 0.42; Amount = $73.50.

•

3/29/2011: Finalize subpoenas; Notices of depos; Arrange service. Time =
0.16; Amount = $40.00. These tasks are administrative and are more
appropriately billed at the rate of $175/hour. Revised: Time = 0.16; Amount
= $28.00.

•

3/30/2011: Conversation with Kodiak Troopers; Message, email to private
process server. Time = 0.16; Amount = $40.00. These tasks are
administrative and are more appropriately billed at the rate of $175/hour.
Revised: Time = 0.16; Amount = $28.00.

•

4/1/2011: Conversation with Troopers re serving subpoena. Time = 0.16;
Amount = $40.00. These tasks are administrative and are more appropriately
billed at the rate of $175/hour. Revised: Time = 0.16; Amount = $28.00.

•

4/5/2011: Conversation with Gobbons re defendant’s motion to quash,
strategy. Time = 0.25; Amount = $105.00. The Court can find no record of
the conversation noted in Mr. Gibbons declaration. In accordance with case
law, this entry will not be compensated.22 Revised: Time = 0.0; Amount =
$0.00.

C

4/5/2011: Conversation with Gibbons re good faith certificate. Time = 0.16;
Amount = $40.00. Presumably, this conversation is regarding the filing at
Docket 54. It is related to Docket 41 and is allowable at the attorney rate as
requested. Revised: Time = 0.16; Amount = $40.00.

C

4/5/2011: Conversation with Gibbons. Time = 0.42; Amount = $105.00. The
Court can find no record of the conversation noted in Mr. Gibbons declaration.

22

See Green, 225 F.R.D. at 615.

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In accordance with case law, this entry will not be compensated.23 Revised:
Time = 0.0; Amount = $0.00.
C

4/5/2011: Conversation with Gibbons; Review defendant’s motion to quash.
Time = 0.25; Amount = $62.50. The Court can find no record of the
conversation noted in Mr. Gibbons declaration. In accordance with case law,
this portion of the entry will not be compensated.24 The billing for reviewing
defendant’s motion is proper and will be calculated at the attorney rate. The
court will therefore compensate for half of the time requested in this entry.
Revised: Time = 0.13; Amount = $32.50.

C

4/7/2011: Review court order; Conversation with Gibbons re motion to quash.
Time = 0.33; Amount = $82.50. Reviewing the court order is properly billed
at the attorney rate. The Court can find no record of the conversation in Mr.
Gibbons declaration. In accordance with case law, this portion of the entry will
not be compensated.25 The Court will therefore compensate for half of the
time requested in this entry. Revised: Time = 0.17; Amount = $42.50.

C

4/12/2011: Review defendant’s opposition to motion to compel. Time = 0.33;
Amount = $82.50. This entry is properly billed. Revised: Time = 0.33;
Amount = $82.50.

C

5/27/2011: Conversation with Gibbons; Arrange subpoena for depositions of
Kewan, Muller, Devon Skonberg. Time = 0.42; Amount = $105.00. The
conversation with Gibbons is properly billed at the attorney rate. The Court
will calculate this portion of the entry as 0.21 hours at a rate of $250/hour.
Arranging for subpoenas is an administrative task and is more appropriately
billed at $175/hour. This constitutes 1/2 of the total time billed. The
deposition of Donald Kewan, Jr. was not addressed in the Court’s Order at
Docket 67. Therefore, the Court reduces the time billed by 0.07 hours.
Revised: Time = 0.35; Amount = $77.00.

23

Id.

24

Id.

25

Id.

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C

5/27/2011: Review, sign subpoenas. Time = 0.16; Amount = $40.00. This
entry is properly billed at the attorney rate. Revised: Time = 0.16; Amount
= $40.00.

C

6/2/2011: Conference with RAS re status of service of subpoenas, notices of
depos, court reporter arrangements; Send proof of service to Gibbons. Time
= 0.25; Amount = $62.50. After reviewing the declarations of both Mr.
Gibbons and Mr. Brennan, the Court cannot determine who/what RAS is. As
such, this portion (one half) of the entry will not be compensated. The
remaining portion of the entry is properly billed at the administrative rate of
$175/hour. Revised: Time = 0.13; Amount = $22.75.

C

6/8/2011: Conversation with Apostola; Conversation with Muller; Email; Phone
message to Gibbons. Time = 0.50; Amount = $125.00. This entry is properly
billed at the attorney rate. Revised: Time = 0.50; Amount = $125.00.

C

6/14/2011: Email to Apostola. Time = 0.16; Amount = $40.00. This entry is
properly billed at the attorney rate. Revised: Time = 0.16; Amount = $40.00.

C

6/22/2011: Letter, email to Gibbons; Review DVDs; Email to Gibbons. Time
= 0.50; Amount = $125.00. This entry is properly billed at the attorney rate.
Defendant argues that the Plaintiff would have watched the DVDs in the
process of litigating the case, regardless of the discovery issues, and thus
should not be entitled to fees pursuant to the Court’s order at Docket 67.
However, the DVDs were discovered late in the case due to Defendant’s
failure to locate the images earlier in the matter. As such, the fee is
appropriately charged to Defendant pursuant to the Court’s sanctions.
Revised: Time = 0.50; Amount = $125.00.

C

7/27/2011: Review correspondence, pleadings; Email to Gibbons. Time =
0.16; Amount = $40.00. This entry is properly billed at the attorney rate.
Revised: Time = 0.16; Amount = $40.00.

C

7/29/2011: Review defendant’s supplemental reply re spoliation/establishment
issue; Email to Gibbons. Time = 0.42; Amount = $105.00. This entry is
properly billed at the attorney rate. Revised: Time = 0.42; Amount =
$105.00.

C

11/4/2011: Analyze costs & fees per court order; Declaration. Time = 0.50;
Amount = $125.00. Pursuant to case law, counsel may not include the

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preparation of his declaration regarding costs and fees for inclusion in the
Court’s award for sanctions.26 Revised: Time = 0.0; Amount = $0.00.
Mr. Brennan requested a total of $1,935.00 in fees. Based on the analysis
above, the Court will award $1,240.00.
2.

Costs

Mr. Brennan included entries for costs for the following items in his filing at
Docket 70.
•

3/29/2011: Witness fee: Devon Skonberg. Amount = $40.00. As noted above
for the entry on 3/28/2011, the Court granted Defendant’s Motion to Quash
this deposition. As such, the Plaintiff is not entitled to this witness fee.
Revised Amount = $0.00.

•

3/29/2011: Alaska State Troopers: Service on Devon Skonberg. Amount =
$65.00. For the reasons stated above regarding the witness fee for Mr.
Skonberg, this cost is also not appropriate. Revised Amount = $0.00.

•

3/29/2011: Witness fee: Darren Muller. Amount = $40.00. As noted above,
the Court granted Defendant’s Motion to Quash this deposition at Docket 44.
As such, the Plaintiff is not entitled to this witness fee. Revised Amount =
$0.00.

•

3/30/2011: Long distance phone charges. Amount = $15.24. This costs is
appropriate and is sufficiently related to the Motion at Docket 41. Revised
Amount = $15.24.

•

6/24/2011: Court reporter’s plane ticket to Kodiak for depositions. Amount =
$219.75. Plaintiff took three depositions in Kodiak. Only one was approved

26

Addington v. Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. Feb. 6,

1978).
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by the Court at Docket 67.27 As such, the Plaintiff is only entitled to one third
(1/3) of the costs for the ticket. Revised Amount = $146.50.
•

6/24/2011: Process server fee for Devon Skonberg. Amount = $245.00. This
costs is directly related to the Court’s Order at Docket 67 and Plaintiff’s Motion
at Docket 41 and is appropriate. Revised Amount = $245.00.

•

6/24/2011: Process server’s plane ticket to Ouzinkie. Amount = $99.00.
Devon Skonberg resides in Ouzinke.28 This costs is directly related to the
Court’s Order at Docket 67 and Plaintiff’s Motion at Docket 41 and is
appropriate. Revised Amount = $99.00.

•

6/30/2011: Long distance phone charges. Amount = $8.54. This costs is
appropriate and is sufficiently related to the Motion at Docket 41. Revised
Amount = $8.54.
Mr. Brennan requested a total of $952.28 in costs. Based on the analysis

above, the Court will award $514.28.
B.

Costs and Fees Submitted by Steven V. Gibbons

Mr. Gibbons practices in Seattle, Washington, and is chief counsel for Plaintiff
in this matter. He has extensive practice experience in admiralty law and routinely
charges a fee of $335/hour. Pursuant to an agreement with his client in this matter,
he is charging $285/hour.29

27

See Notice of Filing Regarding Plaintiff’s Motion for Application of
Establishment Rule and For Sanctions, Docket 59, Exhibits 1-4. The Depositions
of Devon Skonberg, Donald Kewan, Jr. and Paraig McDermott were conducted in
Kodiak, Alaska on June 7, 2011. Mr. Muller’s Deposition was conducted in
Seattle, Washington on June 9, 2011.
28

See Docket 59, Exhibit 1, tr. 4.

29

Gibbons Declaration of Attorneys Fees and Costs, Docket 71.

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Defendant argues that Mr. Gibbons rate is too high. He states that the Court
should only allow a rate which is “more in line with the Anchorage community.”30
Defendant points to case law that states that fees should be calculated at the
“prevailing market rates in the relevant community for similar services by attorneys
of reasonably comparable skills, experience and reputation.”31

Additionally,

Defendant argues that the case is not complex and, therefore, there is no
justification for a higher rate for Mr. Gibbons, though Defendant fails to cite authority
to support this proposition.32
Defendant references Mr. Brennan’s rate of $250/hour in this case as a
reasonable rate for Anchorage. The court is to apply attorney’s fees of the local
area, even if the attorney requesting compensation is from a different location.33 The
Defendant cites no other evidence, besides the statements of his attorney and Mr.
Brennan’s rate, to support his claim that the fee of $285 is unreasonable for
Anchorage.
In N.S. v. Anchorage School District, the Alaska District Court held that “the
burden is on the fee applicant to produce satisfactory evidence-in addition to the
attorney’s own affidavits-that the requested rates are in line with those prevailing in
30

Docket 74, p. 9.

31

Blum, 465 U.S. at 895.

32

Docket 74, p. 9.

33

Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983).

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the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.”34 Judge Burgess awarded the Plaintiff attorneys fees
and determined that the Plaintiff’s counsel presented adequate evidence to establish
her rate ($225.00/hour in 2006) was reasonable.35 The evidence Plaintiff provided
to support her argument that her rate was reasonable for the market was that she
had previously been granted fees at that rate and that “ since Defendants have
provided no evidence to rebut the accuracy and reasonableness of Counsel Kerr’s
hourly rate as well as time spent, and thus, they have waived their right to object to
same.”36
This is adequately similar to the circumstances in the case at bar. And, the
case has a long history of motion practice and a tedious set of facts. It is not as
straight forward as Defendant suggests. As such, the court declines to modify the
rates requested by Mr. Gibbons and finds that $285/hour is reasonable based on his
experience.
The first prong of the lodestar analysis requires the court to examine the fees
submitted for approval. The second prong requires the court multiple the fees by a

34

No. A05-0177 CV (TMB), 2006 WL 2381875, *1 (D.Alaska Aug. 17, 2006)
(citing Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984)).
35

Id. at *2.

36

Id. (citing Blum, 465 U.S. 886).

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reasonable hourly wage. The Court employs this analysis regarding the fees
submitted as noted below.
1.

Fees

Mr. Gibbons included entries for fees for the following dates in his filing at
Docket 71-1.
•

3/30/2011: Email correspondence with co-counsel regarding S.D.T. and
regarding motion as filed; Review same regarding changes. Time = 0.60;
Amount = $171.00. It is unclear who/what S.D.T. is. As such, the Court
declines to award fees for this correspondence and reduces the time eligible
for reimbursement by 1/4. The remaining tasks are properly billed at the
attorney rate of $285/hour. Revised: Time = 0.45; Amount = $128.25.

•

3/21/2011: Receipt of Order Regarding Certificate of Readiness for Trial;
Begin outline revised Motion to Compel Discovery. Time = 0.90; Amount =
$256.50. The Order Regarding Certificate of Readiness is not relevant to the
Court’s Order at 67 or the Motion to Compel at Docket 41. The Court will not
compensate Plaintiff for this portion of the fee request and reduces the
request by 1/2. While the Defendant encourages the Court to reduce the time
the Plaintiff is compensated for work on the Motion to Compel,37 the Court
declines to do so. The amount billed is not excessive in the Court’s view and
the Motion was necessitated by Defendant’s failure to comply with Discovery
Rules. The remainder of the entry is appropriately billed at the attorney rate.
Revised: Time = 0.90; Amount = $128.25.

•

3/28/2011: Continue preparation of Motion (revised) to Compel Discovery and
for Adverse Inference; Telephone conference with J. Brennan regarding same
and need for SDT to Muller. Time = 3.40; Amount = $969.00. Again,
Defendant objects to the time billed for work on the Motion to Compel. As
noted above, the Court declines to reduce compensation in that regard. But,
the court does reduce this request for fees by 1/2 as it is unclear who/what

37

See Docket 78, p. 3.

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SDT is.38 The remainder of the request is properly billed at the attorney rate.
Revised: Time = 0.45; Amount = $484.50.
•

3/29/2011: Final preparation of Motion to Compel, revised to reflect newest
information; Email correspondence regarding same; Telephone conference
with J. Brennan regarding final revisions, and regarding filing and service.
Time = 4.60; Amount = $1,311.00. As noted above, the Court declines to
reduce compensation for counsel’s work on the Motion to Compel. The
request is properly billed at the attorney rate. Revised: Time = 4.60; Amount
= $1,311.00.

•

4/6/2011: Draft motion to reopen discovery, supporting declaration, and
proposed order; Draft Certificate and Supplemental Declaration regarding
efforts to resolve discovery issues; Email from opposing counsel regarding
discussion with D. Mullen [sic]. Time = 2.60; Amount = $741.00. The items
detailed presumably relate to Docket 48 and are properly billed at the attorney
rate. Revised: Time = 2.60; Amount = $741.00.

•

4/7/2011: Final preparation of Motion to Re-Open Discovery and Declaration
of Steven V. Gibbons regarding same and proposed order; Arrange for filing
and service via ECF; Receipt of order quashing depositions pending decision
on motion to quash. Time = 3.70; Amount = $1,054.50. The filing and service
via ECF is an administrative task and will be compensated at the rate of
$175/hour. Review of the order quashing the depositions is not appropriately
included here for the reasons noted in Mr. Brennan’s fee analyses for
3/28/2011. The final preparation of the Motion is appropriately billed at the
attorney rate. The Court divides the entry into thirds (1.23 hours for each of
the three tasks listed) and reduces the total time allowed by 1.23 hours.
Revised: Time = 2.46; Amount = $565.80.

•

4/12/2011: Receipt and begin analysis of Response to Motion to Compel, etc.
Time = 0.90; Amount = $256.50. This fee request is appropriate. Revised:
Time = 0.90; Amount = $256.50.

38

While it is likely that Mr. Gibbons spent far more time on the preparation
of the Motion than he did regarding his conference call, since he has not provided
a more detailed breakdown of the matters, the Court divides the time in half as
there are two tasks billed and one has been deemed ineligible for reimbursement.
09-cv-114-SLG-JDR Order on Reconsideration of Fees.wpd

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•

4/14/2011: Draft Reply to Response on Motion for application of Spoliation
Rule; Telephone conference with local counsel regarding local rules issues
(n/c). Time = 2.60; Amount = $741.00. The Court presumes n/c indicates no
charge to the client. This is fortunate as the Court would otherwise exclude
this billed activity as there is no record of this conversation in Mr. Brennan’s
declaration.39 Noting the “n/c”, the remainder of the entry is properly billed at
the attorney rate. Revised: Time = 2.60; Amount = $741.00.

•

4/18/2011: Prepare (final) Reply on Spoliation Motion and file and serve
same; Email to client regarding status. Time = 1.90; Amount = 541.50. The
court will compensate counsel at the rate of $175/hour for the administrative
tasks of filing and serving the Reply. The remaining 2/3 of the time is properly
billed at the attorney rate. Revised: Time = 1.90; Amount = $472.20.

•

5/16/2011: Receipt of Order regarding discovery issues and analysis of same.
Time = 0.60; Amount = $171.00. This entry is appropriately billed at the
attorney rate. Revised: Time = 0.60; Amount = $171.00.

•

5/17/2011: Email to client regarding Order entered and need for depositions;
Telephone call to client. Time = 0.50; Amount = $142.50. This entry is
appropriately billed at the attorney rate. Revised: Time = 0.50; Amount =
$142.50.

•

5/18/2011: Email from opposing counsel regarding deposition and
perpetuation of testimony and related matters; Email to local counsel
regarding same. Time = 0.30; Amount = $85.50. This entry is appropriately
billed at the attorney rate. Revised: Time = 0.30; Amount = $85.50.

•

5/19/2011: Email correspondence with opposing counsel regarding
depositions and related outstanding discovery responses from defendants.
Time = 0.40; Amount = $114.00. This entry is appropriately billed at the
attorney rate. Revised: Time = 0.40; Amount = $114.00.

•

5/27/2011: Telephone call to R. May regarding P. McDermott’s expected
arrival date in Alaska. Telephone conference with office of Jim Brennan
regarding SDT and Notices of Deposition to D. Time = 1.60; Amount =
$456.00. Mr. McDermott’s deposition was not included in the matters eligible
for sanctions in the Court’s Order at Docket 67. The Court is unable to
39

See Green, 225 F.R.D. at 615.

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determine what/who SDT is. As such, the court will only bill for one half of the
second task, the notices. Revised: Time = 0.40; Amount = $114.00.
•

6/2/2011: Continue preparation for depositions of witnesses pursuant to court
order; Review Interrogatory Responses regarding contact information for P.
McDermott; Email with opposing counsel and local counsel regarding
depositions. Time = 0.80; Amount = $228.00. The Court will not compensate
Plaintiff for work relating to Mr. McDermott as noted above. The request is
reduced by 1/3. Revised: Time = 0.53; Amount = $151.05.

•

6/3/2011: Continue preparation for depositions and perpetuation of testimony;
Review case file. Time = 1.40; Amount = $399.00. As the notation is not
specific to which depositions, and given that the Court only included two of the
four depositions in the sanctions award, the Court reduces this request by 1/4
(or 0.35 hours).40 The remaining tasks are appropriately billed at the attorney
rate. Revised: Time = 1.05; Amount = $299.25.

•

6/5/2011: Travel to Kodiak for depositions; Continue preparation of witness
outline. Time = 6.20; Amount = $1,767.00. While in Kodiak, counsel took
three depositions. Only one of which was subject to sanction awards as noted
in Docket 67. Therefore, that portion of the request is reduced by 2/3. The
preparation of the outline is not specific and is reduced by 2/3 for the same
reason the travel is reduced. Revised: Time = 2.07; Amount = $589.95.

•

6/7/2011: Final preparation for depositions of P. McDermott, D.J. Kewan, D.
Skonberg and D. Muller; Depose McDermott, Kewan and Skonberg; Return
to Anchorage; Email correspondence with local counsel. Time = 9.90;
Amount = $2,821.50. The Court divides this entry into four parts. Based on
the information available via Alaska Airlines, it takes approximately 1 hour to
travel from Kodiak to Anchorage. Thus, part 4 of this entry accounts for 1
hour of billable time. The Court further estimates that it took 0.1 hours of
billable time to email local counsel. That leaves 8.8 hours for parts 1 and 2.
The Court divides those 8.8 hours evenly between the two tasks. For part 1,
final preparation, only half of the depositions are subject to compensation
pursuant to Docket 67. As such, Mr. Gibbons is only entitled to 2.2 hours at
40

This request differs from the 6/2/2011 request in that the 6/2 request
references preparation pursuant to the Court’s order. The Court therefore
presumes that this preparation pertained only to the two persons explicitly listed
in that order, Devon Skonberg and Darren Muller. See Docket 57.
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his attorney rate. For part 2, only 1 of the 3 persons deposed in Kodiak is
included in the Order at Docket 67. Therefore, Mr. Gibbons is entitled to 1.47
hours (or 1/3 of 4.4 hours). The same rule applies to the time billed for his
flight. The Court will compensate him for 1/3 of that time. The email
correspondence time is properly billed. Revised: Time = 4.1; Amount =
$1,168.50.
•

6/8/2011: Telephone conference with opposing counsel regarding contact with
D. Muller; Telephone conference with local counsel regarding possibility of
telephone deposition of D. Muller; Email correspondence regarding same;
Return to Seattle. Time = 6.20; Amount = $1,767.00. It takes approximately
3 1/2 hours to fly from Anchorage to Seattle.41 Knowing that only 1 of the 3
depositions taken in Alaska is compensable under the Order at Docket 67, the
Court allows for billing for 1/3 of the 3 1/2 hours for Mr. Gibbons flight. The
remaining activities are permissible. Revised: Time = 3.87; Amount =
$1,102.95.

•

6/9/2011: Telephone conference with D. Muller to confirm deposition; Email
correspondence with opposing counsel regarding same; review prior
testimony in preparation for deposition; Depose D. Muller. Time = 3.60;
Amount = $1,026.00. This entry is appropriately billed at the attorney rate.
Revised: Time = 3.60; Amount = $1,026.00.

•

6/14/2011: Follow-up email correspondence regarding production and
copying of video tapes received by opposing counsel from Devon Skonberg.
Time = 0.60; Amount = $171.00. This entry is appropriately billed at the
attorney rate. Revised: Time = 0.60; Amount = $171.00.

•

6/17/2011: Receipt and begin review of D. Muller transcript (follow-up
deposition) for supplement due to court on July 15. Time = 1.20; Amount =
$342.00. This entry is appropriately billed at the attorney rate. Revised:
Time = 1.20; Amount = $342.00.

•

6/22/2011: Email correspondence with local counsel regarding production of
DVD’s [sic] and preliminary assessment of content. Time = 0.40; Amount =
$114.00. Consistent with the Court’s assessment of Mr. Brenan’s fees for
6/22/2011, the DVDs were discovered late in the case due to Defendant’s
41

See ALASKA AIRLINES, http://www.alaskaair.com (last visited Feb. 7,

2012).
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failure to locate the images earlier in the matter. As such, the fee is
appropriately charged to Defendant pursuant to the Court’s sanctions.
Revised: Time = 0.40; Amount = $114.00.
•

6/23/2011: Receipt of DVDs (3) of Kitoi Bay opener and review same. Time
= 1.70; Amount = $484.50. As noted in the entry above, this fee is
appropriate pursuant to the Court’s Order. Revised: Time = 1.70; Amount
= $484.50.

•

7/13/2011: Continue preparation of Supplement regarding spoliation motion.
Time = 0.60; Amount = $171.00. This entry is appropriately billed at the
attorney rate. Revised: Time = 0.60; Amount = $171.00.

•

7/14/2011: Outline Supplemental Declaration regarding Spoliation motion.
Time = 1.20; Amount = $342.00. This entry is appropriately billed at the
attorney rate. Revised: Time = 1.20; Amount = $342.00.

•

7/15/2011: Final preparation of Supplemental Declaration Regarding
Spoliation issue and email regarding same to local counsel; Email
correspondence to client. Time = 5.30; Amount = $1,510.50. This entry is
appropriately billed at the attorney rate. Revised: Time = 5.30; Amount =
$1,510.50.

•

7/18/2011: File exhibits to Supplemental Declaration and email
correspondence with local counsel regarding same. Time = 0.70; Amount =
$199.50. This task is more appropriately billed at the administrate rate of
$175/hour. Revised: Time = 0.70; Amount = $122.50.

•

7/29/2011: Analysis of Defendants’ [sic] unauthorized Supplemental Reply
and prepare request for leave to Reply, after consultation with local counsel
as required; Email to client regarding same. Time = 3.40; Amount = $969.00.
The Supplemental Reply reference herein is found at Docket 61. The
document is seven (7) pages in length. The Court believes a more
reasonable amount of time for review of this document and preparation of a
motion for leave to Reply (filed at Docket 62, three (3) pages in length) is 1.7
hours. Revised: Time = 1.7; Amount = $484.50.

•

8/3/2011: Draft Reply and arrange for filing, pursuant to Court Order;
Telephone conference with local counsel regarding software glitch resulting
in filing under seal and need for call to court and opposing counsel regarding

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Same; Attempt to refile Reply. Time = 3.60; Amount = $1,026.00. Defendant
is not responsible for fees associated with “glitches” in Plaintiff’s counsel’s
software. Nor is Defendant responsible for the time associated with re-filing
or consulting local counsel on this issue. The Reply in this matter (Docket 65)
is six (6) pages long and contains similar information to previous filings by
Plaintiff. As such, the Court estimates that 2.0 hours is a reasonable amount
of time for the filing of the Reply. Accordingly, the Court will allow for 2.0
hours for this entry. Revised: Time = 2.0; Amount = $570.00.
Mr. Gibbons requested $19,019.50 in fees. Based on the analysis above, the
Court will award $14,105.20.
2.

Costs

Mr. Gibbons included entries for costs for the following items in his filing at
Docket 71-1.
•

6/5/2011: Travel mileage. Amount = $78.72. For the reasons noted above,
travel on 6/5 for the depositions in Kodiak is, only 1/3 of the cost is
reimbursable by the Defendant. Accordingly, 2/3 of the requested cost will be
excluded. Revised Amount = $26.24.

•

6/7/2011: Metro Court Reporting. Amount = $976.59. For the reasons noted
above, for the depositions in Kodiak, only 1/3 of the cost is reimbursable by
the Defendant. Accordingly, 2/3 of the requested cost will be excluded.
Revised Amount = $325.53.

•

6/9/2011: Seattle Deposition Reporters - deposition of Darren Muller. Amount
= $309.50. This costs is appropriately billed. Revised Amount = $309.50.

•

6/5 - 6/7/2011: Meals and hotel. Amount = $357.99. For the reasons noted
above, only 1/3 of these costs are appropriate. Revised Amount = $119.33.

•

6/5 - 6/7/2011: Airfare. Amount = $1,194.30. For the reasons noted above,
only 1/3 of these costs are appropriate. Revised Amount = $398.10.

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•

6/5 - 6/7/2011: Alaska ground transportation. Amount = $297.83. For the
reasons noted above, only 1/3 of these costs are appropriate. Revised
Amount = $99.28.
Mr. Gibbons requested $2,689.23 in fees. Based on the analysis above, the

Court will award $1,277.98.
IV.

Defendant’s Objection to Compensating Plaintiff for Two Attorneys and
Billing Judgment
The Defendant objects to being required to pay for the billings by two

attorneys.42

Defendant argues that “when a party chooses two attorneys to

represent it in a lawsuit, the opposing party is not required to pay for duplicitive
work.”43
In this matter, the Court has evaluated each and every request for fees and
costs by both of Plaintiff’s attorneys. In general, the Court believes that the costs
and fees requested by both attorneys are reasonable. The attorneys worked
together but the Court does not believe their work was necessarily duplicative.
Accordingly, the Court declines to reduce compensation sought by the Plaintiff as
the work is not duplicative.
Defendant argues that the Court should exclude portions of Plaintiff’s
requested compensation on the basis of “billing judgment.” The Court has taken into

42

Docket 74, p. 6.

43

Id. (citing Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996).

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account Defendant’s argument regarding billing judgment. Billing judgment requires
attorneys to exclude time that is not reasonable, is duplicative, excessive or
improperly documented.44
The Court has accounted for “billing judgement” in its evaluation of each and
every cost and fee request made by the Plaintiff. In cases where the amount
requested was excessive, the Court has included an explanation and corresponding
alteration to compensation.
The Defendant also claims the amount of costs and fees requested is
excessive in light of the total amount at issue in this case, $70,300.00.45 The Plaintiff
sought items through discovery which he reasonably believed would contain images
of the collision, thus bearing directly on the issue of fault. Given that the items
sought could likely determine the outcome of the entire case, it is not unreasonable
that Plaintiff pursued those items through discovery. It was unreasonable, however,
that Defendant failed to preserve this evidence. As such, the Court declines to
adjust the costs and fees awarded on the basis that the amount of compensation is
disproportionate to the total amount in controversy in this case.
//
//

44

See Ramos,713 F.2d 546.

45

Docket 78, p. 5.

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V.

Plaintiff’s Success

Defendant argues that the Court should reduce the overall amount of
compensation pursuant to sanctions because the Plaintiff was not successful in his
requests.46 As noted in Section II above, Plaintiff “failed” to locate the missing
evidence pursuant to his Motion to Compel only because Defendant failed to
preserve it. Plaintiff did succeed in reopening discovery in order to conduct further
depositions and give the parties one more chance to locate the missing images.
Finally, the Court did not find that the Defendant acted maliciously in his failure to
preserve the missing evidence and so chose to employ the lesser sanction of costs
and fees, as opposed to the Plaintiff’s preferred remedy of an adverse inference.
Therefore, Plaintiff only “failed” on one ground, that of a finding that Defendant’s
actions merited a lesser sanction than the one which was most desired.
Applying the holdings in INS and Murakami,47 the Court finds that Plaintiff’s
award of costs and fees should not be adjusted to account for Plaintiff’s “failure” as
Plaintiff, in fact, succeeded in his Motion to Compel. The Defendant failed to
preserve evidence in this matter. Implementation of sanctions at a lesser penalty is
not sufficient to warrant a downward adjustment of fees in this matter.

It is

46

See Docket 74, p. 6; Docket 78, pp. 5-6.

47

496 U.S. 154; 2005 WL 1355113.

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appropriate for him to pay for the costs and fees Plaintiff incurred as a result of that
failure.
VI.

Conclusion

Pursuant to Defendant’s Motion for Reconsideration at Docket 74 the Court
has meticulously reviewed Plaintiff’s requests for costs and fees and reviewed the
relevant pleadings filed by the parties. The Court employed the lodestar calculation
methods in analyzing the compensation sought by Plaintiff. Following this thorough
review, the Court finds that the Defendant shall compensate Plaintiff for fees in the
amount of $1,240.00 for attorney Brennan, costs in the amount of $514.28 for
attorney Brennan, fees in the amount of $14,105.20 for attorney Gibbons and costs
in the amount of $1,277.98 for attorney Gibbons. The total compensation due to
Plaintiff from the Defendant is $17,137.46.
IT IS SO ORDERED.
DATED this

7th

day of February, 2012, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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