Koch v. Jerry W Bailey Trucking Inc et al
OPINION AND ORDER GRANTING in part 263 MOTION for Attorney Fees, MOTION for Bill of Costs by Plaintiff Daniel Koch. Attorney's fees of $70,000.00 and costs in the amount of $3,836.09 are awarded in favor of Plaintiffs and against Defendants. DENYING as moot 277 MOTION to Strike Portions of Defendants' Opposition by Plaintiff Daniel Koch. Signed by Judge Holly A Brady on 7/16/2021. (lhc)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DANIEL KOCH, et al.,
JERRY W. BAILEY TRUCKING, INC.,
and ESTATE OF JERRY W. BAILEY,
Cause No. 1:14-CV-72-HAB
OPINION AND ORDER
When the parties settled, they left the Court to determine the award for Plaintiffs’ attorney
fees and costs. That issue is now fully briefed. (ECF Nos. 264, 269, 274). Plaintiffs have also, on
order of this Court, provided an accurate accounting of their attorney fees using then-prevailing
rates. (ECF No. 276). In total, Plaintiffs seek an attorney fee award of $201,820.00 and a costs
award of $5,729.36.
The Court recognizes Plaintiffs’ statutory right to attorney fees and costs. But the amount
requested by Plaintiffs is not reasonable under the relevant factors. As a result, Plaintiffs will be
awarded $70,000.00 in attorney fees and $3,836.09 in costs.
This case began more than seven years ago with the filing of a complaint and, ten days
later, an amended complaint. (ECF Nos. 1, 8). The amended complaint asserted a collective action
for failure to pay overtime wages under federal law, a class action for failure to pay wages under
Indiana law, and an individual action by Plaintiff Koch for failure to pay wages under Indiana law.
In May 2014, the parties filed a joint stipulation to conditionally certify both the class and
collective actions. (ECF No. 28). But the parties did not define the class claims, requiring an order
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from the Court directing them to do so. (ECF No. 29). The Court also had concerns, based on
Plaintiffs’ counsel Ronald Weldy’s disciplinary history, whether Attorney Weldy could fairly and
adequately represent the interests of the class. As a result, the parties were ordered to brief Attorney
Weldy’s competency as class counsel. (ECF No. 30).
In December 2014, the Court denied the parties’ stipulation for certification. (ECF No. 35).
The Court found that Attorney Weldy’s disciplinary history, as well as his conduct in other cases
before the Court, rendered him incapable of representing the class. After Plaintiffs moved to
reconsider, the Court vacated its December 2014 Order. (ECF No. 51).
The parties then again stipulated to conditional certification (ECF No. 58), which
stipulation was granted in June 2015. (ECF No. 59). Even so, the parties could not agree on the
class definitions or how the opt-in notices were to be returned. The Court ultimately rejected
Plaintiffs’ proposed revisions to the class definitions, revised the definitions itself, and forbade
potential class members from returning the opt-in forms by any means other than mail. (ECF No.
Nearly two years into the litigation, Plaintiffs sought leave to amend their complaint to add
another named plaintiff and another cause of action. (ECF No. 83). Defendants objected and the
Court ultimately agreed with Defendants, finding that the proposed amendment had been
unreasonably delayed and would be prejudicial to Defendants. (ECF No. 92).
For the next two years there was little court action. It appears from the docket that the
parties spent this time conducting discovery and engaging in settlement discussions. Those
discussions included an unsuccessful judicial settlement conference with Magistrate Judge Susan
Collins. (ECF No. 118).
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In April 2018, Defendants moved to decertify the class and collective actions. (ECF No.
126). Defendants also moved for summary judgment. (ECF No. 128). Plaintiffs cross-moved for
summary judgment while also opposing the motion to decertify. (ECF Nos. 149). Following the
filing of responses, replies, sur-replies, and motions to strike, the Court decertified the class and
collective actions in May 2019. (ECF No. 182). The Court found that Plaintiffs overstated the
number of potential class members at the certification stage and that, considering the actual number
of opt-ins, the suit could be maintained as individual actions.
After another amendment to the complaint in December 2019, the parties again crossmoved for summary judgment. The Court entered an order on the cross-motion in August 2020.
(ECF No. 225). In summary, the Court found that Defendant Linda Bailey could not be held
personally liable, but that the remaining Defendants had violated both state and federal wage laws.
The Court further found that Jerry Bailey’s personal liability, as well as Defendants’ intent to
violate wage laws, were matters for a jury to determine.
Armed with this order, the parties again participated in a judicial settlement conference
with Magistrate Judge Collins in November 2020. (ECF Nos. 236–37). This time, settlement was
reached. The total amount recovered by all Plaintiffs was $60,642.69, roughly 60% of the damages
claimed in affidavits submitted as part of the summary judgment briefs. Plaintiffs moved three
times to extend their deadline to move for attorney fees and costs. Plaintiffs then determined that
they needed a final judgment before they could collect attorney fees and costs. After more delays,
the Court approved the parties’ settlement agreement in January 2021 and entered judgment for
Plaintiffs two months later following the execution of the settlement agreements. (ECF No. 260).
Plaintiffs moved for attorney fees in April 2021. After continuances on both sides, the
motion was fully briefed in late-June 2021. The Court reviewed the briefs and ordered Plaintiffs
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to submit attorney fees reflecting the rates in effect at the time services were rendered. That
accounting has now been tendered to the Court.
The award of attorney fees to a prevailing plaintiff in a Fair Labor Standards Act (“FLSA”)
claim is mandatory. 29 U.S.C. § 216(b) (“The court in such action 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.”). Still, district courts have “wide latitude” in determining the
amount of the fee. Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 406 (7th Cir. 1999).
Reasonable Billing Rate
Generally, when calculating attorney’s fees, a district court will determine a “lodestar
amount by multiplying the reasonable number of hours worked by the market rate.” Bankston v.
State of Ill., 60 F.3d 1249, 1255 (7th Cir. 1995). The market rate is “the rate that lawyers of similar
ability and experience in the community normally charge their paying clients for the type of work
in question.” McNabola v. Chicago Transit Auth., 10 F.3d 501, 519 (7th Cir. 1993) (citation
omitted). “The attorney’s actual billing rate for comparable work is ‘presumptively appropriate’
to use as the market rate.” People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th
Cir. 1996) (citation omitted). If the district court cannot determine the attorney’s actual billing rate
because, for example, the attorney has no fee-paying clients, then the district court should look to
the next best evidence. Id. The next best evidence of an attorney’s market rate includes evidence
of rates other attorneys in the area charge paying clients for similar work and evidence of fee
awards the attorney has received in similar cases. Id. at 1310–12. The burden of proving the market
rate is on the party seeking the fee award. See McNabola, 10 F.3d at 518. That said, once an
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attorney provides evidence establishing his market rate, the opposing party has the burden of
proving why a lower rate should be awarded. See People Who Care, 90 F.3d at 1313.
Attorney Weldy has provided billing rates to the Court for himself, his associate, and his
paralegal. Attorney Weldy’s rate was between $325.00 and $400.00 per hour over the seven years
of this case, his associate’s $200.00 per hour, and his paralegal’s between $125.00 and $150.00
per hour. That said, there is no evidence that Attorney Weldy has ever charged any client these
amounts. Recognizing this, Attorney Weldy has provided the Court with affidavits from two
attorneys, Christopher Myers and Robert Kondras, Jr., both of whom testified that their current
rates are $400.00 per hour.
The Court sees two problems with these affidavits. First, Attorney Myers regularly appears
before this Court, so the Court is familiar with his practice. Attorney Myers’ employment practice
is mainly, if not entirety, plaintiff-based and contingent. The Court doubts that any of Attorney
Myers’ clients have ever paid the claimed $400.00 per hour rate.1 His affidavit, then, does little to
help the Court determine a reasonable billing rate.
Attorney Kondras’ affidavit is only marginally more helpful. Attorney Kondras’ office is
in Terre Haute, Indiana, more than two hundred miles from the Fort Wayne Federal Courthouse.
He, too, appears to represent employees exclusively2, presumably on a contingent fee basis.
Attorney Kondras does identify cases in which he was awarded a $400.00 billing rate, but none of
those cases are from the Northern District; three are from the Southern District of Indiana3, and
one from California. Those awards are helpful, but ultimately limited by geographical differences.
In 2015, this Court found that a reasonable hourly rate for Attorney Myers was $350.00. Myatt v. Gladieux, 2015
WL 6455387 (N.D. Ind. Oct. 23, 2015). In that case, Attorney Myers also claimed that his hourly rate was $400.00.
Id. at 2.
The cases in which Attorney Weldy was awarded his claimed rates suffer from the same problem, as all identified
cases are from the Southern District of Indiana. (See ECF No. 264 at 9–10).
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The only evidence this Court has of a rate that a client paid comes from Defendants’
counsel, Theodore Storer. Attorney Storer’s billing rate was between $300.00 and $350.00 per
hour over the course of this litigation. These numbers strike the Court, who practiced in the
employment law area on behalf of both employers and employees before taking the bench, as far
more reasonable in this district. See Batt v. Micro Warehouse, Inc., 241F.3d 891, 895 (7th Cir.
2001) (“Although the district court must consider [fee awards and fees charged by practitioners of
comparable skill and experience], it is entitled to determine the probative value of each submission
and must arrive at its own determination as to a proper fee.”) (quotations omitted).
Because of how long this case has been pending, the Court must also consider how to
accommodate for the time value of money. The Supreme Court has observed that courts have
accounted for delay in payment “either by basing the award on current rates or adjusting the fee
based on historical rates to reflect its present value.” Pennsylvania v. Delaware Valley Citizens
Counsel for Clean Air, 483 U.S. 711, 716 (1987) (emphasis added). While it is possible to find
authority to the contrary, see Matter of Cont’l Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992), “the
courts in this circuit generally use current rates.” Skelton v. Gen. Motors Corp., 860 F.2d 250, 255
n.5 (7th Cir. 1988).
Having determined that Attorney Storer’s billing rate more accurately represents a
reasonable hourly rate, the Court will follow the lead of its sister courts in applying current rates
over the course of the entire litigation. Thus, the Court finds that the market rate for use in the
lodestar calculation is $350.00 for each hour reasonably worked on this case.4
Defendants do not challenge the billing rates for Attorney Weldy’s associate or paralegal. Thus, the Court will accept
those rates as reasonable.
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Hours Reasonably Worked
Plaintiffs have no right to bill every hour spent on litigation to their opponent. Instead, a
prevailing party must exercise “billing judgment” to “exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours” from bills to their own client. Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). When reducing hours requested, the Court must provide “a concise but clear
explanation.” Tomazzoli v. Sheedy, 804 F.2d 93, 97 (7th Cir. 1986).
The Court has reviewed Attorney Weldy’s billing submission line by line. Having done so,
the Court has identified several areas where the hours claimed are “excessive, redundant, or
Adequacy of Class Counsel
Attorney Weldy did not come into this case with a clean slate before the Court. He has
prior discipline for inattention to client matters and, perhaps more importantly, had mishandled (at
least in the Court’s estimation) a case then-pending before the Court. As a result, before the Court
addressed the merits of the proposed class and collective actions, it questioned whether Attorney
Weldy could act as class counsel. Attorney Weldy eventually convinced the Court of his
competence and was permitted to stay on as Plaintiffs’ counsel. He now seeks to shift fifteen of
his own hours, and 16.1 of his associate’s hours, to Defendants for time spent addressing the
The Court does not believe that these hours should be part of a fee award. Attorney Weldy
did not advance the interests of his clients by fighting to preserve his appearance. To the contrary,
the concerns over his abilities delayed the case by nearly six months. Instead, Attorney Weldy
advanced his own interests in future fees. This was a reasonable business decision on his part. That
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said, given the bases of the Court’s concerns, it does not believe that Defendants should be made
to bear the costs for Attorney Weldy’s financial self-preservation. These hours will be deducted
from the lodestar calculation.
Creating a Damages Spreadsheet
From October to December 2016, Attorney Weldy’s paralegal billed 26.4 hours for
entering information into a damages spreadsheet. Some eight months later, Attorney Weldy spent
19.2 hours finalizing the spreadsheets. These hours, and more devoted to damages, were
challenged by Defendants in their response brief. (ECF No. 269 at 6). Unfortunately, no other
information or argument related to these hours was provided in Plaintiffs’ reply.
While the number of paralegal hours seem excessive on their face, it is the timing of the
hours that concerns the Court the most. Remember, this time was spent before the decertification
of the class and collective actions. It is likely, then, that some of those hours are devoted to entering
information for individuals who did not become plaintiffs in this case. Plaintiffs have made no
effort to more specifically identify the tasks undertaken during these hours, complicating the
Court’s task. The Court is, then, left to use its best guess in determining the appropriate number of
hours to credit. Since the actual number of plaintiffs was around one-fifth of the number of class
members originally represented to the Court, and since the challenged hours were spent while the
class and collective actions were still certified, the Court finds that the same reduction is
appropriate. As a result, the Court will permit five hours of paralegal time for creating the damages
spreadsheet to be transferred to Defendants.
The Court also questions how, and why, Attorney Weldy spent nearly twenty hours
“finalizing” spreadsheets created by his paralegal. Was he rechecking every entry? Confirming the
math? True, much of this time is block-billed with tasks like “analyze documents produced” and
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“calculate damages for class members,” but these seem to be little more than double-checking the
work of the paralegal. The “documents produced” were presumably used by the paralegal in
creating the spreadsheet and, if the spreadsheet was accurate, “calculating damages” should have
involved little more than looking to the bottom line.5 Ultimately, the lack of detail in these entries
leads the Court to question the amount of time appropriately billed to Defendants. See Valerio v.
Total Taxi Repair & Body Shop, LLC, 82 F. Supp. 3d 723, 744–45 (N.D. Ill. 2015) (“[c]ourts
should not permit recovery for administrative or clerical tasks, such as organizing file folders,
preparing documents, and copying documents.”). The Court finds that 19.2 hours is excessive but
will allow five hours of attorney time for reviewing the documents and spreadsheets.
Summary Judgment Practice
There were two rounds of summary judgment practice in this case: one pre-decertification
and one post-decertification. By the Court’s calculations, Attorney Weldy billed sixty-one hours
(not including motions related to briefing schedules or evidentiary issues) during the first round of
briefing. This briefing was ultimately rendered moot; when the Court decertified the class and
collective actions, it denied the cross-motions for summary judgment as moot. (ECF No. 195). In
the second round, Attorney Weldy billed another 30.8 hours, again exclusive of ancillary issues.
In total, Attorney Weldy billed nearly ninety-two hours to summary judgment briefs alone.
The Court has reviewed the briefs both when it ruled on summary judgment and now in
the context of the fee claim. Attorney Weldy’s briefing was not inconsequential. His primary brief
in the first round was forty-eight pages, forty-three pages in the second round. Even so, the
majority of both filings was devoted to the recitation of facts. The legal arguments took up only
Plaintiffs’ reply asserts that some calculations “had to be redone on multiple occasions because a flaw with an
equation to calculate hours or damages was found and remedied.” (ECF No. 274 at 8). This is an explanation, but not
a basis for holding Defendants responsible for the initial errors.
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sixteen pages in the first brief, fourteen in the second. The Court is not discounting the importance
of facts in summary judgment proceedings, but when Plaintiffs’ briefs are looked at in this light,
the length becomes less remarkable.
That said, the Court is mostly concerned by the similarities between the two rounds of
briefing. If one compares ECF Nos. 150 and 222, the primary summary judgment briefs, they will
find that the briefs are largely identical. There are differences, of course: the second brief
incorporates additional facts from intervening depositions, for instance. All the same, the legal
issues were the same in both rounds of briefing. Given the similarities, the Court questions how
Attorney Weldy can justify more than thirty hours to prepare a second round of briefing that was
largely a cut-and-paste version of the first.
Nor were the issues particularly complex. If one omits the discussion of the standard of
review, Plaintiffs’ primary brief for the second round of briefing cites just five cases when
discussing the merits of the claims, and another four when discussing tolling. (ECF No. 222). The
factual underpinning for Plaintiffs’ claims, that they were not paid for pre- and post-trip
inspections, was largely undisputed. These briefs did not write themselves, but they were also not
so difficult that they should have taken four full days of effort to draft.
As a result, the Court finds that sixty hours were reasonably spent by Plaintiffs briefing the
summary judgment issues. Thus, 31.8 hours will be disallowed.
Applying these adjustments to Plaintiffs’ claimed hours, and incorporating hours that
Plaintiffs abandoned in their reply along with more hours billed for preparing the fee briefs, the
Court finds that these hours are properly billable to Defendants:
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Multiplying these hours by the rates above, the Court finds that the lodestar calculation is $126,840
for Attorney Weldy, $1,620 for Attorney Derringer, and $6,480 for the paralegal. In total, the
lodestar figure is $134,940.
Modifications to the Lodestar Calculation
With the lodestar figure calculated, the Court now turns to the parties’ requested
modifications to that figure. Plaintiffs assert that the lodestar figure should be enhanced by fifty
dollars per hour on account of what they call the “excellent result” obtained. (ECF No. 274 at 7).
Not so, Defendants counter, asserting instead that the lodestar figure should be reduced because of
the decertification of the class and collective actions. (ECF No. 269 at 3–5). The Court agrees with
The United States Supreme Court has repeatedly said that enhancements to the lodestar
figure may be awarded only in “rare” and “exceptional” circumstances. Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 552 (2010) (collecting cases). This is because “the lodestar figure includes
most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee.” Pennsylvania v.
Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 566 (1986). The quality of an
attorney’s performance generally should not be used to adjust the lodestar “[b]ecause
considerations concerning the quality of a prevailing party’s counsel’s representation normally are
reflected in the reasonable hourly rate.” Id.
On the other hand, “[i]f ... a plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate
may be an excessive amount.” Hensley, 461 U.S. at 436. In such a case, the district court has the
discretion to reduce the modified lodestar amount to reflect the degree of success obtained. See id.
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As did the district court in Dominguez v. Quigley’s Irish Pub, Inc., 897 F. Supp. 2d 674
(N.D. Ill. 2012), the Court finds the Second Circuit’s decision in Barfield v. New York City Health
and Hospitals Corp., 537 F.3d 132 (2d Cir. 2008) to be on point. There, the plaintiff sued on behalf
of herself and others similarly situated for violations of the overtime provisions of the FLSA. The
district court denied the request to certify the collective action. After the plaintiff’s individual case
was settled, she requested statutory attorney fees. Among other reductions, the district court
reduced the lodestar figure by fifty percent based on the failure of the collective action.
Challenging on appeal the reduction in a manner nearly identical to Plaintiffs here, the
plaintiff in Barfield argued that “a motion for FLSA collective action certification is not a claim
and, thus, failure on such a motion does not support a fee reduction.” Id. at 152. The Second Circuit
rejected this argument.
A district court's assessment of the “degree of success” achieved in a case is not
limited to inquiring whether a plaintiff prevailed on individual claims. Both the
quantity and quality of relief obtained, as compared to what the plaintiff sought to
achieve as evidenced in her complaint, are key factors in determining the degree of
success achieved. Indeed, this comparison promotes the court’s central
responsibility to make the assessment of what is a reasonable fee under the
circumstances of the case.
Id. (citations and quotations omitted). Finding that the “plaintiff’s primary aim in this litigation, as
reflected in her complaint and in the first four months of litigation . . . was to certify a collective
action,” the Second Circuit found that the fifty percent reduction was appropriate based on the
plaintiff’s limited success: “[i]n this respect the district court got it exactly right: the
reasonableness of the attorney’s fees incurred linked directly to the ability to maintain the case as
an FLSA collective action.” Id. at 153.
In many respects, the Court believes that the class and collective actions were more
“primary” in this case than in Barfield. While the collective action in Barfield was a focus for only
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four months, the parties here labored under the class and collective action for five years. Two out
of the three counts in the Amended Complaint are addressed solely to the class and collective
actions. But perhaps the most compelling evidence is the speed with which this case settled once
the class and collective actions were decertified. While the case languished as a class and collective
action, the parties resolved this matter in only eighteen months once the specter of class liability
was removed. The individual claims were never the drivers of this case for either side.
Plaintiffs, understandably, focus on the initial certification. They assert that “[g]etting a
class and/or collective action certified is a rare skill amongst Hoosier attorneys.” (ECF No. 264 at
12). Maybe, but certification was not exactly one of the twelve labors of Hercules. The request for
certification was jointly made. The only reason for the Court’s initial rejection of the certification
request was its misgivings about Attorney Weldy. When one further considers that the certification
was based on a wildly inaccurate estimate of potential class members, Attorney Weldy’s demand
for plaudits rings hollow.
At base, the facts of the matter are that Plaintiffs recovered only a fraction of the damages
claimed in the summary judgment briefs6, which were themselves only a fraction of the recovery
anticipated when suit was filed. This is not an “excellent result” for Plaintiffs. To the contrary, it
reflects “success” that merits a downward modification to the lodestar figure. As a result, the Court
finds that an award of $70,000.00 represents a reasonable fee in this case. It closely approximates
the actual recovery obtained and reflects both the lodestar figure and the limited success achieved.
As Defendants note, recoverable costs are listed in 28 U.S.C. § 1920. Those costs are:
(1) Fees of the clerk and marshal;
Plaintiffs have moved to strike references in Defendants’ damages brief to Plaintiffs’ demands at settlement. (ECF
No. 277). The Court has not considered that evidence in reaching its conclusion, and therefore DENIES the motion as
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(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; [and]
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
Id. A district court may not tax a prevailing party’s costs to the losing party unless the specific
expense is authorized by this statute. Little v. Mitsubishi Motors N.A., Inc., 514 F.3d 699, 701 (7th
There is agreement between the parties that $3,836.09, representing the filing,
videographer, and court reporter fees, are properly taxed. The remaining amount in dispute,
$1,893.27, represents “parking, hotel stays, mileage, postage, and copies7.” (ECF No. 274 at 9).
Plaintiffs do not argue that these are costs authorized by 28 U.S.C. § 1920. Instead, they claim,
citing Indiana authority, that the amount should be “added to the attorney fee requested since they
are costs normally billed with attorney fees.” (ECF No. 274 at 9).
In line with the directive in Little, the Court will not assess the extra-statutory costs to
Defendants. Moreover, without any federal authority authorizing the taxing of costs as fees, the
Court declines Plaintiffs’ invitation to do so. Thus, the Court will assess costs in the amount of
The Court recognizes that copies can qualify as costs under 28 U.S.C. § 1920(4), but Plaintiffs have not tried to show
that the copies were “necessarily obtained for use in the case.”
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For these reasons, Plaintiffs’ Motion for an Award of Statutory Attorney’s Fees, Costs and
Designation of Evidence (ECF No. 263) is GRANTED in part. Attorney’s fees of $70,000.00 and
costs in the amount of $3,836.09 are awarded in favor of Plaintiffs and against Defendants.
Plaintiffs’ Motion to Strike Portions of Defendants’ Opposition (ECF No. 277) is DENIED as
SO ORDERED on July 16, 2021.
s/ Holly A. Brady
JUDGE HOLLY A. BRADY
UNITED STATES DISTRICT COURT
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