Blankenship v. USA Truck, Inc.
ORDER denying 109 re Motion to Alter Judgment and Alternative Motion for Reconsideration of the Award of Attorney Fees and Expenses. Signed by Honorable P. K. Holmes, III on January 9, 2012. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WILLIAM BLANKENSHIP, JR.
USA TRUCK, INC.
Currently before the Court is Plaintiff William Blankenship. Jr.'s Motion to Alter Judgment
or, in the alternative, Motion for Reconsideration of the Award of Attorney Fees and Expenses (Doc.
109) and supporting documents, and Defendant USA Truck, Inc.'s ("USA Truck") Response to
Plaintiff’s Motion (Doc. 110). Plaintiff also filed a Reply (Doc. 112) without leave of Court, which
the Court, nevertheless, has read and considered. On December 13, 2011, the Court entered an Order
(Doc. 105) granting Defendant’s Motion to Amend Judgment and for Attorneys’ Fees, and entered
an Amended Judgment (Doc. 104) awarding attorneys’ fees and costs. The Court has before it the
necessary documents to rule on the instant Motion. For the reasons stated below, Plaintiff’s Motion
(Doc. 109) is DENIED.
Plaintiff Blankenship asks this Court to reconsider its Order awarding attorneys’ fees and
expenses to Defendant USA Truck. USA Truck was the prevailing party in a contract action brought
by Blankenship. Blankenship asserted claims for fraud in the inducement of a settlement agreement
and breach of contract on the underlying contract between the parties. The Court entered a Judgment
in favor of USA Truck after a jury returned a verdict on an interrogatory which found that
Blankenship had no valid claim for fraud in the inducement of the settlement agreement. USA Truck
filed a timely motion to recover attorneys’ fees and expenses under Arkansas law, Ark. Code Ann.
§ 16-22-308, which allows the prevailing party in a contract action to recover attorneys’ fees and
expenses. Attached to USA Truck’s Motion was an affidavit in support of the request for attorneys’
fees and expenses. (Doc. 94-1). Blankenship's Response (Doc. 96) asked the Court to deny the
motion for attorneys’ fees and expenses because the Court had already entered its Judgment stating
that each party should bear its own costs and attorneys’ fees, and that the award of fees and costs was
discretionary with the Court. The Court entered an Order (Doc. 102) directing USA Truck to submit
for in camera review detailed statements reflecting the amounts sought. USA Truck complied with
the Order. The Court further directed USA Truck to provide Blankenship’s counsel with a summary
breakdown of its counsel’s fees submission in lieu of submitting the detailed statements to
Blankenship’s counsel. Blankenship did not file a counter-affidavit challenging USA Truck’s
request for attorneys’ fees and expenses. Blankenship asked the Court, instead, after receiving USA
Truck’s summary, to redact the detailed statements for any privileged and confidential information
and to allow Blankenship to review the redacted, detailed statements.
The procedure to recover costs and fees is governed by Fed. R .Civ. P. 54(d)(2), which
requires that a claim for fees must be made by motion within 14 days after entry of judgment. The
rule further provides that a party opposing the request be given an opportunity to make “adversary
submissions on the motion” and that special procedures to resolve fee related issues may be
established by local rule. Fed. R. Civ. P. 54(d)(2)(C) & (D). Special procedures for submitting fee
requests have been adopted by local rule in this district. W.D. Ark. R. 54.1. The party filing the
motion must do so within 14 days of entry of the judgment. Id. Specifically, the petitioner for fees
must file an affidavit setting out the time spent in the litigation, and factual matters pertinent to the
petition for attorneys’ fees. Id. The opposing party must file any objections to an allowance of fees
within 14 days after service of the motion for fees and expenses. Id. “The respondent may, by
counter affidavit, controvert any of the factual matters contained in the petition and may assert any
factual matters bearing on the award of attorney’s fees.” Id.
The Court followed the factors set out in Chrisco v. Sun Industries, Inc., 304 Ark. 227,
(1990), in determining the amount of attorneys’ fees and expenses to be awarded in this case.
Analysis of those factors requires objective consideration of facts provided by the party seeking an
award of fees and costs that can be challenged with countervailing facts through a counter-affidavit,
as allowed by local rule. While the Court does not feel it is necessary to discuss again the Chrisco
factors, the record in this case, including the affidavit provided by USA Truck, the summary
breakdown of the fees submission, and the in camera review of the detailed submissions by USA
Truck, were sufficient to determine an appropriate award of attorneys’ fees and expenses. While
Blankenship filed a short Response to USA Truck’s original motion for fees, Blankenship did not
provide any countervailing facts to challenge the facts provided by USA Truck in its motion and
attached affidavit. The detailed statements, which the Court reviewed in camera, were not necessary
for Blankenship to be able to challenge the appropriateness of the fees requested by USA Truck
under the Chrisco factors. Rather, the Plaintiff had sufficient information to prepare an adversary
submission through an affidavit, as required by the local rule. In Great Plains Real Estate
Development, L.L.C. v. Union Central Life Insurance Company, 536 F. 3d 939 (8th Cir. 2008), the
Eighth Circuit affirmed a district court’s award of attorneys’ fees where the opposing party
challenged that the district court did not afford them a chance to respond to a request for fees. The
Eighth Circuit found that, because the party opposing the fee award did not follow the special
procedures to challenge the appropriateness of the amounts awarded as set forth in the federal and
local rules applicable to the case, the district court did not abuse its discretion in awarding fees and
expenses based upon the submissions of the party seeking recovery of attorneys’ fees and expenses.1
Id. at 946.
In the case at hand, Blankenship failed to follow the procedure set forth in Fed. R. Civ. P. 54
or Local Rule 54.1 for challenging USA Truck’s submissions. Furthermore, as the Court stated in
its previous Order, and as restated herein, Blankenship had sufficient information – from USA
Truck’s Motion, attached affidavit, and subsequently-provided summary – to allow for meaningful
review of the fees requested. Based on the Court’s review, as set forth in its previous Order, and
given the complex and lengthy nature of the instant litigation, the Court found that USA Truck’s
request for attorneys’ fees and costs was fair and reasonable under the Chrisco factors.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Alter Judgment (Doc. 109) is
IT IS FURTHER ORDERED that Plaintiff’s Alternative Motion for Reconsideration of
the Award of Attorney Fees and Expenses (Doc. 109) is likewise DENIED.
IT IS SO ORDERED this 9th day of January, 2012.
s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE
The Court notes, as well, that the Eighth Circuit recognized that a district court would likely
have discretion to deny a request for adversary submissions under Fed. R. Civ. P. 54(d)(2)(C) where
the facts surrounding whether or not to award attorney fees and costs were “of record.” Id. at 946 n.
6. In this case, the facts surrounding whether or not an award of attorneys’ fees would be appropriate
– without regard to the amount to be awarded – were of record, and adversary submissions would
not have been necessary for the Court to make that determination.
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