PANHANDLE EASTERN PIPE LINE, COMPANY, L.P. v. PLUMMER et al

Filing 136

ENTRY - Now pending before the Court is Panhandle's supplemental fee petition, [Filing No. 123], which is fully briefed. In total, Panhandle requests $152,843.90 in fees and $3,583.57 in expenses and costs. The Court has reviewed Pa nhandle's petition and supplement and finds the requested fees, hours, costs, and expenses to be "reasonable" under the Settlement Agreement. The Court awards Panhandle $149,043.90 in attorney's fees and $3,583.57 in costs and expenses for a total award of $152,627.47, which will be incorporated in the judgment contemporaneously entered herewith. (SEE ENTRY). Signed by Judge Jane Magnus-Stinson on 10/22/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PANHANDLE EASTERN PIPE LINE,
COMPANY, L.P.,
Plaintiff,
v.
JOSEPH F. PLUMMER,
DEBORAH L. PLUMMER,
Defendants.

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No. 1:16-cv-02288-JMS-DLP

ENTRY
Panhandle owns rights of way on the Plummers’ property for two of its pipelines. On
summary judgment, the Court held that the undisputed evidence established that the Plummers had
obstructed Panhandle’s rights to access its rights of way. [Filing No. 100.] The Court also held
that Panhandle’s success triggered the attorney’s fees provision of the 1999 Settlement Agreement.
[Filing No. 10-2 at 6.] The Court ordered, however, that a determination on the amount of fees
should wait until the remaining issue of injunctive relief had been resolved “[t]o allow the Court
to assess the reasonableness of the fee request in light of the entire litigation.” [Filing No. 100 at
21.] Panhandle duly filed a petition for attorney’s fees in connection with its first proposed
permanent injunction. [Filing No. 109.] After the Court ordered the parties to conduct a physical
inspection of the Plummers’ property and to submit a revised, particularized proposed permanent
injunction, the Court explained that “Panhandle may . . . file a supplement to its Motion for
Attorney’s Fees contemporaneous with its briefing on the amended proposed injunction to recover
fees and expenses from the joint inspection.” [Filing No. 117 at 3.] Now pending before the Court
is Panhandle’s supplemental fee petition, [Filing No. 123], which is fully briefed. In total,
Panhandle requests $152,843.90 in fees and $3,583.57 in expenses and costs.

The Plummers’ first objection to Panhandle’s fee request is that “Panhandle did not file a
renewed motion for attorney’s fees” and that its award should therefore be limited to those amounts
incurred between Panhandle’s initial fee petition and amended fee petition. [Filing No. 129 at 1.]
This would result in an award of $13.63 in expenses and $6,434.60 in fees. In reply, Panhandle
asserts that the Plummers’ objection is meritless because Panhandle fully complied with the
Court’s direction to file a “supplement to its Motion for Attorney’s Fees” by limiting its newest
filing to discussing its fees and costs incurred since it filed its first fee petition. [Filing No. 133 at
2 (quoting Filing No. 117 at 3).]
The Plummers’ argument is meritless.

The Court directed Panhandle to file a

“supplement”—not to rehash its initial fee petition, to which the Plummers already had the
opportunity to, and in fact did, respond. This was the Court’s effort to conserve the parties’
resources and avoid duplicative briefing, primarily to benefit the Plummers who, in theory, would
not have had to pay for Panhandle to brief the issues a second time. Panhandle complied precisely
with the Court’s directions, and there is no basis for limiting Panhandle’s fees to those requested
in its supplement.
Second, the Plummers nitpick at several of Panhandle’s litigation decisions and expenses
and at times suggest that the Court should employ a lodestar approach in evaluating Panhandle’s
petition. [Filing No. 113.] But the Seventh Circuit has explained why such scrutiny would be
inappropriate under the circumstances of this case:
This argument neglects the distinction between attorney’s fees shifted by statute
and those shifted by contract. It is true that we have required lodestar analysis for
statutory fee-shifting schemes. Fees shifted by contract are a different matter.
Because fee-shifting occurs as a result of the parties’ ex ante private ordering, we
have held that fees shifted pursuant to a contractual provision “require
reimbursement for commercially-reasonable fees no matter how the bills are
stated.” Matthews v. Wisconsin Energy Corp., Inc., 642 F.3d 565, 572 (7th Cir.
2011) (citations omitted). The inquiry into commercial reasonableness “does not

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require courts to engage in detailed, hour-by-hour review of a prevailing party’s
billing records.” Id. (upholding a contractual fee-shifting award even though the
“request lacked any description of the work performed”).
There is less need to police the reasonableness of fees shifted pursuant to
a contract because the parties to a contract expressly consent to and define the
terms of the fee shifting. . . . We see no reason to curtail parties’ ability to define
the terms of their fee arrangements with lawyers. This is quite different from a
statutory obligation to pay the opponent’s fees, where the party responsible for the
fees does not consent to the arrangement and has no say in determining how fees
will be calculated.
Johnson Controls, Inc. v. Edman Controls, Inc., 712 F.3d 1021, 1027 (7th Cir. 2013).
Consistent with the Seventh Circuit’s guidance, the Court finds no reason to second-guess
Panhandle’s litigation decisions, the expenses for which are supported by documentation. The
Plummers question the number of attorneys who spent time on this case, but as Panhandle points
out, several of these attorneys spent very little time on the matter. The Plummers also assert that
Panhandle achieved limited success in the form of a $6,000 damages award and a permanent
injunction, but ignore the importance of the property rights at issue, which ultimately led to the
Court’s issuance of a permanent injunction. [See Filing No. 100 at 22-24.] Panhandle has achieved
essentially complete success on all of the claims raised in its Amended Complaint and on the
Plummers’ counterclaim, warranting substantially all of its requested fees.

The fact that

insubstantial damages were at issue underscores the importance of the fee-shifting provision in
this case. Next, the Plummers argue that they paid their attorneys significantly less than Panhandle
has paid its attorneys, but fail to explain how this is relevant to the reasonableness inquiry in this
case. Panhandle was also entitled to send its attorney to conduct an in-person deposition of the
Plummers’ allegedly key witness instead of relying upon Skype. Finally, the Court must point out
that attorney’s fees in this matter have ballooned in no small part due to the Plummers’ decision
to pursue a previously-settled abandonment claim, [see Filing No. 100 at 12-13], and their behavior

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in discovery, [see, e.g., Filing No. 64; Filing No. 100 at 17 n.8]. In short, the Plummers’ arguments
are not well-taken.1
The Court has reviewed Panhandle’s petition and supplement and finds the requested fees,
hours, costs, and expenses to be “reasonable” under the Settlement Agreement. [Filing No. 10-2
at 6.] The lone exception is Panhandle’s request for fees incurred in complying with the Court’s
Order directing the parties’ to file corrected summary judgment briefing in compliance with the
citation format mandated by the undersigned’s Practices and Procedures. [See Filing No. 91.]
Panhandle should have complied with the Practices and Procedures in the first instance. The Court
therefore finds these fees to be unreasonable, and therefore deducts 16 hours from associate Derek
Raymond’s time billed at $200 per hour and 2.4 hours from partner Ryan Vershay’s time billed at
$250 per hour, for a total reduction of $3,800. [See Filing No. 109-1 at 75-76.] In sum, the Court
awards Panhandle $149,043.90 in attorney’s fees and $3,583.57 in costs and expenses for a total
award of $152,627.47, which will be incorporated in the judgment contemporaneously entered
herewith.

Date: 10/22/2018

The Settlement Agreement states that “The party found to be in breach of or in violation of any
provision of this Agreement (but not [the Easement Amendment]) shall pay all costs and expenses
including reasonable attorneys’ fees of the prevailing party in any enforcement action or
proceeding connected thereto.” [Filing No. 10-2 at 6.] The Court notes that at no point have the
Plummers argued that they have breached the Settlement Agreement but not the Easement
Amendment, such that a reduction of fees attributable solely to the violation of the Easement
Amendment would be appropriate. Any such argument is therefore waived. Even if it were not
waived, as the Court observed on summary judgment, the Settlement Agreement, which provides
for fee shifting, incorporated by reference the Easement Amendment’s dispositive terms regarding
obstructions on the rights of way and Panhandle’s right to clear the rights of way.
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Distribution via ECF only to all counsel of record

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