United States of America v. Gerke et al
Filing
92
MEMORANDUM DECISION AND ORDER - IT IS ORDERED that: Government's Motion for Attorney's Fees and Investigation Costs (Dkt. 86 ) is GRANTED in part and DENIED in part as stated herein. The Court hereby awards the government attorneys' f ees in the amount of $27,750.40. The Court denies the government's investigation costs with leave to amend. Signed by Senior Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 2:22-cv-00439-BLW
MEMORANDUM DECISION
AND ORDER
v.
MICHAEL JEAN SPEAR, BILLIE
JEAN GERKE, and TWIN CEDARS
CAMPING AND VACATION
RENTALS, LLC,
Defendants.
INTRODUCTION
The Court has before it the government’s Motion for Attorney’s Fees and
Investigation Costs (Dkt. 86). Based on the briefing, record in the case, and the
Defendant’s failure to appear, the Court concludes that oral argument is
unnecessary. For the reasons explained below, the Court will grant the
government’s motion in part and award the government’s attorneys’ fees in the
adjusted amount of $27,750.40 and deny the government’s investigative costs with
leave to amend.
BACKGROUND
This action arose out of a dispute over Q-1783 and Q-1786, two lake-front
MEMORANDUM DECISION AND ORDER - 1
parcels of land owned by the United States government in northern Idaho. In
October 2022, the government filed a verified complaint against Mr. Spear, Ms.
Gerke, and Twin Cedars, alleging claims for ejectment, common law trespass, civil
trespass, private nuisance, and public nuisance. Compl., Dkt. 1.
Roughly a year later, the Court entered summary judgment against Mr.
Spear and Ms. Gerke on all the government’s claims except for public nuisance.
MDO, Dkt. 71. After that, the Clerk of Court filed an entry of default as to Twin
Cedars, and the Court then entered a default judgment on the same claims in which
the government prevailed against Mr. Spear and Ms. Gerke. MDO, Dkt. 82. Stated
simply, all the named defendants have been found liable for ejectment, common
law trespass, civil trespass, and private nuisance. 1
Following the substantive resolution of the government’s claims, The Court
granted in part and denied in part the government’s motion for remedies. MDO,
Dkt. 83. Specifically, the Court ordered the defendants to disgorge any profits
earned from renting the government’s property but denied the government’s
1
After the Court determined that the defendants were liable for the claims above, the
government moved to dismiss its claim for public nuisance. See Dkt. 85. The government
reasoned that because the core of its case was resolved, there was no benefit to continuing the
pursuit of its last remaining claim. Accordingly, the Court granted the government’s request,
which, in essence, resolved any liability issue. See MDO, Dkt. 91.
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request for attorney fees and investigation costs. Id. The Court, however, instructed
the government that it could renew its request after a judgment was entered. Id.
In accordance with the Court’s direction, the government now submits its
motion requesting an award of attorney’s fees totaling $46,080 and investigative
costs totaling $160,879.87. Gov.’s Br. at 6, Dkt. 86. As they have consistently
done, the defendants did not file an objection to the government’s request.
DISCUSSION
A.
Request for Attorney’s Fees
The government first requests an award of attorney’s fees in the amount of
$46,080. Gov.’s Br. at 4, Dkt. 86. After reviewing the briefing and the record, the
Court concludes the hourly rate charged by the government’s attorney is
reasonable, but the number of hours billed must be reduced to properly apportion
the work done on the government’s civil trespass claim.
According to Idaho Rule of Civil Procedure 54(e)(1) a court may award
attorney fees to the prevailing party when a statute so provides. Under Idaho Code
§ 6-202(3)(b), a party found liable for civil trespass is liable for reasonable
attorney’s fees and reasonable costs associated with investigating the trespass. See
also Fischer v. Croston, 413 P.3d 731, 741 (Idaho 2018) (“section 6-202 provides
for a reasonable attorney fee for prevailing plaintiffs in a trespass action.”).
MEMORANDUM DECISION AND ORDER - 3
In Idaho, the proper method for determining reasonable attorney’s fees is the
“lodestar” method. Stanley v. McDaniel, 913 P.2d 76, 80 (Idaho Ct. App. 1996).
First, the court evaluates whether the rate charged and the hours expended by the
attorney were reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
hourly rate and expended hours are then multiplied to calculate the reasonable
attorney’s fees. Id. The Court will discuss the government’s hourly rate and hours
expended in turn.
1. Hourly Rate
In support of its request, the government submitted a declaration from
Assistant United States Attorney Robert Firpo, the only attorney who worked on
this case. According to his declaration, Mr. Firpo’s hourly rate is $256. See Firpo
Decl., Dkt. 86-2
He arrived at this number by using the calculation suggested by the
Executive Office of the United States Attorneys, Resource Management and
Planning Staff, which is “the AUSA’s annual salary rate (i.e., the AUSA’s annual
rate of pay divided by 2,080) + the AUSA’s hourly benefit rate (i.e., the AUSA’s
annual salary rate plus 30%) + the Department of Justice’s current overhead rate
($93.64).” Id. at 3. In an abundance of caution, Mr. Firpo calculated his rate based
on his 2021 annual salary and did not recalculate for his 2022 and 2023 salary
MEMORANDUM DECISION AND ORDER - 4
increases. Accordingly, the Court finds Mr. Firpo’s hourly rate of $256 reasonable.
2. Hours Expended
The government has informed the Court that it spent 542 hours on this
matter. The government, however, only requests an award of fees for a third of that
time, attempting to apportion its request to account for only its civil trespass claim.
The government explains that it pursued claims for ejectment, trespass, and
nuisance. Thus, the government seeks an award of a third of its total hours—180
hours—that it claims fairly apportions its time spent on the trespass claim.
As the government correctly noted, under I.C. § 6-202, attorney’s fees must
be apportioned to only account for fees incurred in pursuing its civil trespass claim.
See Akers v. Mortensen, 320 P.3d 418, 427 (Idaho 2014) (“I.C. § 6–202 only
provides an award of attorney fees for those fees incurred in prosecuting the
trespass under the statute[.]”). The Court, however, disagrees with the
government’s classification of its claims and, therefore, its apportionment of time
spent on the civil trespass claim. As mentioned, Mr. Firpo reduced his hours by
two-thirds in an attempt to apportion his work on the civil trespass claim.
However, Mr. Firpo’s apportionment oversimplifies the government’s claims. To
explain, under the government’s trespass claim, it pursued both common law and
statutory trespass claims. Similarly, the government argued that the defendant’s
MEMORANDUM DECISION AND ORDER - 5
conduct amounted to both a private and public nuisance. Because the statute
provides attorney’s fees only for the civil trespass claim, the proper reduction is
four-fifths, not two-thirds.
Accordingly, taking the 542 total hours worked and reducing it by four-fifths
is 108.4 hours, which fairly apportions Mr. Fipro’s work on the government’s civil
trespass claim. Thus—using the lodestar method—the Court finds that attorney’s
fees totaling $27,750.40 ($256 x 108.4 hours) is reasonable and will award such.
B.
Reasonableness of the Requested Investigative Costs
Next, the government requests investigative costs in the amount of
$160,879.87. See Gov.’s Br. at 6, Dkt. 86. In support of its request, the government
provided a declaration by Omar Vega, the Branch Chief for Real Estate
Management and Disposal for the United States Army Corps of Engineers. Based
on Mr. Vega’s declaration, the government requests an award for the following
investigative costs: (1) $109,125.00 for 1,275 labor hours for staff at the Albeni
Falls Dam, (2) $31,265.54 for a survey done by APS Survey and Mapping Inc., (3)
$10,707.50 of labor costs by Geospatial Section and Contracting Section, (4)
$1,177.31 of labor costs by real estate staff, (5) $2,563.22 for 19.5 hours of Mr.
Vega’s labor for the Real Estate Management and Disposal branch, and (6)
$6,041.33 for 44.55 hours of Mr. Vega’s and staff labor for the Real Estate
MEMORANDUM DECISION AND ORDER - 6
Management and Disposal branch. See Vega Decl. at 2-3, Dkt. 86-1.
While the government is correct that it is entitled to recover reasonable
investigative fees, the Court concludes that Mr. Vega’s declaration—without
more—does not provide enough support for the Court to determine whether the
government’s investigative costs were, in fact, reasonable. See I.C. § 6-202(3)(a)
(the prevailing party is only entitled to “reasonable costs associated with
investigating any trespass[.]”) (emphasis added). For example, the government
failed to show why 1,275 hours of labor—or $109,125—was reasonable or
necessary for “trips to the property to talk with Defendant Spear; paint over the
blaze orange marking the trees on the subject property as private property; and
assisting realty specialists in conducting inspections” Vega Decl. at 2, Dkt. 86-1.
Moreover, neither the government’s briefing nor Mr. Vega’s declaration claims
that all these costs were reasonable or necessary to pursue its civil trespass claim.
Instead, Mr. Vega’s declaration merely provides conclusory statements regarding
the government’s incurred expenses.
Simply put, without the government providing more information about why
these costs were reasonable or necessary, the Court will deny its request for an
award of reasonable investigative costs. The Court, however, will do so with leave
MEMORANDUM DECISION AND ORDER - 7
to amend and allow the government to resubmit its request.2
ORDER
IT IS ORDERED that:
1.
Government’s Motion for Attorney’s Fees and Investigation Costs
(Dkt. 86) is GRANTED in part and DENIED in part as stated herein.
2.
The Court hereby awards the government attorneys’ fees in the
amount of $27,750.40.
3.
The Court denies the government’s investigation costs with leave to
amend.
DATED: July 3, 2024
_________________________
B. Lynn Winmill
U.S. District Court Judge
2
Because the Court cannot determine whether such a significant portion of the
government’s request is reasonable, it will refrain from parsing through each specific request to
find those that are more reasonable (i.e., APS’s survey fees). Rather, the Court will provide the
government to opportunity to resubmit its requests for costs with either more explanation or a
limited scope of costs.
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