Michiana Dairy Processors LLC v. Star Beverage Inc et al

Filing 293

OPINION AND ORDER re 290 Motion, granting 284 All Star Beverages Third Amended Motion for Attorneys Fees [DE 284] and ORDERS that Plaintiff Michiana Dairy Processors, LLC shall pay Defendant All Star Beverage Inc attorney fees and costs in a total amount of $432,077.89. Signed by Magistrate Judge Paul R Cherry on 6/17/11. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHIANA DAIRY PROCESSORS, LLC,
Plaintiff,
v.

)
)
) CAUSE NO.: 2:09-CV-39-PRC
)
ALL STAR BEVERAGE, INC., ROGER
)
MOHLMAN, PRIME STAR GROUP, INC. f/k/a )
AMERICAN WATER STAR, INC., ALL STAR )
BEVERAGE OF ARIZONA, INC., GEYSER
)
BEVERAGES, INC., HAWAIIAN TROPICALS, )
INC., and DONNA MOHLMAN,
)
Defendants.
)
________________________________________ )
)
ALL STAR BEVERAGE, INC.,
)
Counter-Claimant,
)
v.
)
)
MICHIANA DAIRY PROCESSORS, LLC,
)
Counter-Defendant.
)
_________________________________________ )
)
PRIME STAR GROUP, INC. f/k/a AMERICAN )
WATER STAR, INC., ALL STAR BEVERAGE )
OF ARIZONA, INC., GEYSER BEVERAGES,
)
INC., and HAWAIIAN TROPICALS, INC.,
)
Counter-Claimants,
)
v.
)
)
MICHIANA DAIRY PROCESSORS, LLC,
)
Counter-Defendant.
)
_________________________________________ )
)
DONNA MOHLMAN,
)
Counter-Claimant,
)
v.
)
)
MICHIANA DAIRY PROCESSORS, LLC,
)
Counter-Defendant.
)
OPINION AND ORDER
This matter is before the Court on (1) Defendant, All Star Beverage’s Third Amended
Motion for Attorney’s Fees [DE 284], filed by Defendant All Star Beverage, Inc. (“All Star
Beverage”) on May 16, 2011; and (2) a “Motion to Strike Plaintiff’s Supplemental Response to

Request for Attorney Fees by All Star Beverage, Inc. and for Sanctions” [DE 290], filed by All Star
Beverage on June 3, 2011.
PROCEDURAL BACKGROUND
On April 14, 2004, Michiana filed a Complaint against All Star Beverage, Inc. (“All Star
Beverage”) and Roger Mohlman in the Lake Circuit Court. On March 17, 2008, Michiana filed a
First Amended Complaint against All Star Beverage, American Water Star, Inc., All Star Beverage
of Arizona, Inc., Geyser Beverages, Inc., Hawaiian Tropicals, Inc., John Doe, Jane Doe, and Roger
Mohlman. On February 2, 2009, Michiana filed a Second Amended Complaint against the same
Defendants and added Donna Mohlman.
On March 2, 2009, Defendant Donna Mohlman removed the case to this Court.
On May 8, 2009, Defendant All Star Beverage filed an Answer to the Second Amended
Complaint and a Counterclaim. Michiana filed an Answer to the Counterclaim on May 27, 2009.
On July 24, 2009, the John Doe and Jane Doe parties were dismissed.
On July 15, 2010, a Motion for Summary Judgment was filed by Defendants All Star
Beverage, Prime Star Group, Inc. f/k/a American Water Star, Inc., All Star Beverage of Arizona,
Inc., Geyser Beverages, Inc., Hawaiian Tropicals, Inc., Donna Mohlman, and Roger Mohlman.
On October 12, 2010, the Court granted the Motion for Summary Judgment in favor of
Defendants, including All Star Beverage, on Michiana’s Second Amended Complaint.
On October 25, 2010, Defendant All Star Beverage filed a Motion for Attorney Fees as the
prevailing party under the Packaging Agreement between Michiana and All Star Beverage, seeking
an award of $728,365.72 but providing no supporting documentation.
On November 9, 2010, Defendant All Star Beverage filed a Motion to Declare It the
Prevailing Party. No response was filed.
On November 24, 2010, Defendant All Star Beverage filed an Amended Motion for Attorney
Fees with supporting exhibits and then filed the motion again on November 29, 2010, to add an

2

exhibit. Michiana filed a response in opposition on December 23, 2010. All Star Beverage filed a
reply on January 21, 2011.
On March 31, 2011, the Court ordered that judgment be entered on Plaintiff’s Second
Amended Complaint against Plaintiff Michiana Dairy Processors, LLC and in favor of Defendants
All Star Beverage, All Star Beverage of Arizona, Inc., Geyser Beverages, Inc., Hawaiian Tropicals,
Inc., Prime Star Group, Inc. f/k/a American Water Star, Inc., and Donna Mohlman. The Court
granted All Star Beverage’s Motion to Declare It the Prevailing Party and ordered that Defendant
All Star Beverage is the “prevailing party” on Michiana’s Second Amended Complaint for purposes
of paragraph 16 of the Packaging Agreement between Michiana and All Star Beverage.
In the March 31, 2010 Order, the Court also granted in part and denied in part All Star
Beverage’s Amended Motion for Attorney Fees. The Court ordered All Star Beverage to file an
amended fee request in accordance with the Court’s rulings in Part B of that Order, submitting the
requisite affidavits, itemized billing statements, and a supporting memorandum on or before April
15, 2011. The Court granted Michiana up to and including April 22, 2011, to file a concise and
specific response, if any, to the amended fee request.
On April 15, 2011, All Star Beverage filed a Second Amended Motion for Attorney Fees
(“Second Amended Fee Request”), complying satisfactorily with the Court’s request that each page
of the fee request contain an individual fee total to assist the Court in confirming the total fee
request. Michiana filed a 25-page response in opposition on April 22, 2011. All Star Beverage filed
a reply on April 26, 2011. On May 11, 2011, the Court issued an Opinion denying without prejudice
the Second Amended Motion for Attorney Fees to clarify that fees incurred in the prosecution of All
Star Beverage’s Counterclaim were to be excluded and to request that All Star Beverage file a Third
Amended Motion for Attorney Fees to explain the inclusion of certain other items in the billing
statements identified by the Court. The Court further granted Michiana up to and including May

3

27, 2011, to file a response brief, if any, limited to the issues raised in the Court’s Opinion, expressly
ordering that “[n]o new arguments shall be raised.”
On May 16, 2011, All Star Beverage filed the instant Third Amended Motion for Attorney’s
Fees. Plaintiff Michiana Dairy Processors, LLC (“Michiana”) filed a “Supplemental Response to
Request for Attorney Fees by All Star Beverage, Inc.” on May 25, 2011. On June 3, 2011, All Star
Beverage filed a “Motion to Strike Plaintiff’s Supplemental Response to Request for Attorney Fees
by All Star Beverage, Inc. and for Sanctions” [DE 290], and Michiana filed a “Response in
Opposition to Defendant All Star’s Motion to Strike Plaintiff’s Supplemental Response” on June
15, 2011.
ANALYSIS
In the Third Amend Motion for Attorney’s Fees, All Star Beverage requests a total of
$432,077.89 in attorneys’ fees and costs incurred in defending itself against Michiana’s contract
claims during the course of this litigation. In response to the Court’s Order, All Star Beverage
represents that it has redacted and/or reduced the questionable entries to exclude fees referencing
Enhance, Dupont, or the counterclaims.
In its Response, Michiana does not provide any specific objection to the redactions made by
All Star Beverage, nor does it identify any remaining objectionable items in the fee request. Rather,
Michiana identifies facts learned about All Star Beverage’s past and current operational status
during the course of testimony at a proceedings supplemental hearing held on May 23, 2011, and
argues that it was unreasonable for All Star Beverage to defend against Michiana’s claims and that
it would be unreasonable to award fees to a company that may be required to use the proceeds of the
judgment to satisfy an “apparent judgment” owed another company. Michiana offers to no law or
cited fact in support of its short argument. In the Motion to Strike, which also cites no law, All Star
Beverage argues that Michiana’s Response should be stricken because it is inappropriate, is
nonresponsive to All Star Beverage’s Motion, misrepresents the testimony given at the proceedings

4

supplemental, is contrary to the plain language of the Packaging Agreement that awards attorney
fees to the prevailing party, and attempts to make Michiana’s counsel a witness in this case in
violation of the professional conduct rules. Having considered the arguments and the standard for
a Motion to Strike under Federal Rule of Civil Procedure 12(f), the Court denies the Motion to
Strike the Response but considers all the arguments therein to constitute All Star Beverage’s reply
in support of its Third Amended Motion for Attorney’s Fees.
The Court finds unpersuasive the argument made in Michiana’s “Supplemental Response
to Request for Attorney Fees by All Star Beverage, Inc.”
Paragraph 16 of the Packaging Agreement between Michiana and All Star Beverage, titled
“Attorney’s Fees,” provides:
Except as otherwise provided herein, if a party shall commence any action or
proceeding against another party in order to enforce the provisions of this Agreement
or to recover damages as a result of the alleged breach of any of the provisions of this
Agreement, the prevailing party shall be entitled to recover all reasonable costs in
connection therewith, including reasonable attorneys’ fees.
(See Exhibit A to All Star Beverage’s Amended Motion for Attorney’s Fees). As the prevailing
party under the Packaging Agreement, All Star Beverage is entitled to an award of attorney fees and
costs related to defending the contract claims in Michiana’s Complaint, Amended Complaint, and
Second Amended Complaint brought against it. Having now thoroughly examined All Star
Beverage’s itemized request for fees and having several times ordered the exclusion of numerous
categories of fees from the final attorney fee request, the Court hereby finds that the attorney fee
request submitted on May 16, 2011, is in conformity with the Court’s orders and is based on
reasonable work performed by attorneys for All Star Beverage in defense of Michiana’s claims
brought under the Packaging Agreement.

5

CONCLUSION
Accordingly, the Court hereby GRANTS Defendant, All Star Beverage’s Third Amended
Motion for Attorney’s Fees [DE 284] and ORDERS that Plaintiff Michiana Dairy Processors, LLC
shall pay Defendant All Star Beverage, Inc. attorney fees and costs in a total amount of $432,077.89.
SO ORDERED this 17th day of June, 2011.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

6