Campbell v. Reliance Health Care Inc et al
ORDER granting in part and denying in part 203 Motion for Attorney Fees and as supplemented 210 . The Court awards costs in the amount of $5,700.50 and attorney's fees in the amount of $109,089.70. Signed by Judge D. P. Marshall Jr. on 8/11/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CARROLYN CAMPBELL; AMANDA
HODGES; CRYSTAL WALTERS;
HEATHER CROW; and TABITHA RILEY,
all individually and on behalf of others
NORTHWEST HEALTH & REHAB,
INC. dfb/a North Hills Life Care &
Rehab; OCNC, INC. dfb/a Silver Oaks
Heath & Rehabilitation; SCNC, INC.
dfb/a Spring Creek Health & Rehab;
and JBNC, INC., dfb/a Ridgecrest Health
The parties agree that Hodges, Walters, Riley, and Crow are entitled to
an award of attorney's fees and costs. They disagree on how much. Plaintiffs
ask for a total of $357,046.20. NQ 203 & 210. Defendants say the fees should
start at $77,122.50, and then be significantly reduced for various reasons. NQ
208 at 74-75, 80.
The gap between the parties' numbers illustrates the
contentiousness that's marked this case from the beginning.
There's no dispute on the governing law. NQ 204at 14 & NQ 208 at 37-39.
The Court must determine the number of hours reasonably expended
multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424,433
(1983). The Court rejects Plaintiffs' request to consider Defendants' billing
records as a necessary or helpful comparison; the law is against this. Burks v.
Siemens Energy & Automation, Inc., 215 F.3d 880, 884 (8th Cir. 2000).
Considering all the material circumstances and factors, the Court awards
$109,089.70 in fees and $5700.50 in costs. Here's how the Court arrived at its
1. Costs. Hodges, Walters, Crow, and Riley prevailed. Under Rule of
Civil Procedure 54(d)(1), they're entitled to recover certain costs incurred as
specified by 28 U.S.C. § 1920. The $350.00 filing fee is agreed and allowed.
28 U.S.C. § 1920(1). All service fees are disallowed because Plaintiffs haven't
shown payment to the U.S. Marshal. The statute allows reimbursement only
for service by the Marshal. 28 U.S.C. § 1920(1); Crues v. KFC Corp., 768 F.2d
230,234 (8th Cir. 1985).
The Court allows $ 3,262.50 for deposition-related expenses. 28 U .S.C.
§ 1920(2). This excludes the Adamses' depositions; Defendants are correct
that the parties stipulated on the Adamses' dismissal that each would "bear
their own costs." NQ 151 at 1; Weitz Co. v. MH Washington, 631 F.3d 510,
535-36 (8th Cir. 2011 ). The Pumphrey and Burilson witness fees are allowed.
28 U.S.C. § 1920(3). Mileage to meet Crow, PACER fees, and postage aren't
within the statute and are disallowed. Smith v. Tenet Healthsystem SL, Inc., 436
F.3d 879, 889 (8th Cir. 2006). The Court allows $2,000.00 for copies. 28 U.S.C.
§ 1920(4). This case involved mounds of paper, but only $.10 a page is
2. Attorney's Fees. A few preliminaries.
The Court declines Defendants' request to limit Plaintiffs' fees to the
period before initial disclosure were due. NQ 208 at 16-27. Plaintiffs should
have estimated damages sooner, and it's troubling they didn't. But they
needed their own memories and the payroll records, which they received only
later. Good faith estimates in the initial disclosures would have been very
helpful; but both sides share some responsibility here.
The Court rejects Defendants' argument to limit Plaintiffs' fees to the
period before the Defendants served the offers of judgment. NQ 208 at 71-75.
First, in general, fees incurred in litigating the reasonable fee are recoverable.
Jones v. MacMillian Bloedel Containers, Inc., 685 F.2d 236, 239 (8th Cir. 1982).
Some of the post-offer time in this case was spent on fees. Second, the
animating circumstance here is that Plaintiffs didn't accept the offers.
Compare, e.g., Beauford v. ACTIONLINK, LLC, 2014 WL 183904 at *2 (E. D. Ark.
15 Jan 2014). As the Court noted before, the end of the dispute about Hodges,
Walters, Riley, and Crow was more about mootness than the letter of Rule 68.
NQ 187 at 2-3; NQ 195. These offers only covered reasonable fees and costs
"accrued through" the offers' respective dates. NQ 166-3, NQ 166-7, NQ 166-11,
& NQ 193-1.
But that limiting term, the Court concludes, does not bind
Plaintiffs in the circumstances. The lack of consent makes this case more like
Haworth v. State of Nevada, 56 F.3d 1048,1051-52 (9th Cir. 1995) and Dalal v.
Alliant Techsystems, Inc., 182 F.3d 757, 760-62 (10th Cir. 1999): when an offer
is not accepted, the Court should consider the fees that were part of the offer,
and those incurred post-offer, in deciding the reasonable fee overall. The
offered fees aren't a hard ceiling. My Brother I-Iolmes hinted in this direction
in Hendricks v. lnergy, L.P., when he reserved any ruling on whether the
unaccepted offers that had mooted the case also fixed the fees. 2013 WL
6984634 at *5 n.4 (E.D. Ark. 18 July 2013).
Third, some of the post-offer fees incurred are about Campbell, which
are excluded for another reason, and some are about Crow- before she got
her belated offer, which are properly included in any event. The Court will
consider the line between pre-offer fees and post-offer fees in fixing the
reasonable fee. But these unaccepted offers didn't stop the clock.
The Court agrees that Defendants' proposed hourly rates are too high.
Based on the Court's experience, and awards in other FLSA cases in this
District, see, e.g., Beauford, 2014 WL 183904 at *7, and Maclin v. Montgomery &
Sons Construction, Inc., Ng 4:12-cv-5-DPM (E. D. Ark. 30 May 2013), the Court
sets these reasonable rates:
$275/hr for Holleman and Ryan
$200/hr for Schubert, Jackson, Steadman, and Ashby
$175/hr for Rauls, Breech, and Crandall
$100/hr for Rausch, Simmancher, and Sanders
Applying these rates to the time billed reduces the total fees claimed
(including time spent on the reply) to $266,072.50.
That's the lodestar
amount. For various reasons, this amount must be significantly reduced.
First, all work associated with Carolyn Campbell, Ebony Bradford,
Teresa Knight, Dominique Plummer, Tiffany Stills, the Adamses, and Reliance
is excluded. Claims by, against, or involving these parties were either
unsuccessful or unrelated to the recovering Plaintiffs. Because about 14% of
Plaintiffs' proposed hours were spent on these parties, the Court makes a 14%
Second, the Court makes a 25% reduction for hours that were" excessive,
redundant, or otherwise unnecessary[.]" Hensley, 461 U.S. at 434. This
includes time spent doing things that could have been done by support staff.
NQ 203-2 at 34-35, 40; Granville House, Inc. v. Dep't of Health, Educ. & Welfare,
813 F.2d 881, 884 (8th Cir. 1987). This also includes time spent correcting
errors, such as filing of the wrong first amended complaint. Finally, some of
the time spent doing routine tasks was excessive. It shouldn't take 6.90 hours
to send emails about scheduling and a joint discovery report. NQ 203-2 at 25.
Nor should it take 37.30 hours to review Defendants' response and prepare
a reply brief on fees. NQ 210 at 13. The photograph of a desk awash in paper
was a nice touch, but a bit too much time was spent on this short brief.
71zird, a further lack-of-success reduction is warranted. Both sides claim
victory. Neither is exactly right. There needs to be a 20% reduction for
needless contention and lack of success on several issues. Hensley, 461 U.S.
at 436. There were too many discovery disputes and conferences, most of
them unfruitful. N!! 118, 133, & 146. Both sides bear some responsibility for
this, but the Court has made some reduction here for Plaintiffs' share.
Plaintiffs spent time pursuing claims that were ultimately unsuccessful:
Plummer, Bradford, and Knight dropped out; Plaintiffs eventually decided
not to pursue claims against the Adamses and Reliance; and the Court
rejected Plaintiffs' attempt to add promissory estoppel and unjust enrichment
claims. N!! 123, 128, 138, 152, 157. Finally, Hodges, Walters, Riley, and Crow
never accepted Defendants' offers of judgment. Plaintiffs continued to litigate
and accumulate fees until the Court called a halt. N!! 187 & 195.
In sum, a substantial fee is reasonable but the amount sought is just too
much considering all the material circumstances. The Court reduces the
lodestar by 59% and awards Plaintiffs a reasonable attorney's fee of
Motion for fees and costs, NQ 203, as supplemented, NQ 210, granted in
part and denied in part. The Court awards:
Attorney's Fees $ 109.089.70
D.P. Marshall Jr.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?