KONRATH v. VANCE et al

Filing 76

ORDER re 73 MOTION for Bill of Costs and Attorney Fees - Defendants' counsel shall have fourteen days from the date of this Order in which to provide the Court with the requested evidence. Upon receiving this evidence, the Court will determine the reasonableness of the Defendants' asserted attorney fees and costs.(SEE ORDER) Signed by Judge Larry J. McKinney on 5/24/2017. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

GREGORY KONRATH,

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Plaintiff,
vs.
ALLISON VANCE,
INDIANAPOLIS MONTHLY, and
EMMIS PUBLISHING CORPORATION,
Defendants.

No. 1:16-cv-02784-LJM-DKL

ORDER REQUESTING ADDITIONAL EVIDENCE ON ATTORNEY FEES
This matter is before the Court on Defendants’, Allison Vance, Indianapolis
Monthly, and Emmis Publishing Corporation (collectively, the “Defendants”), Petition for
Attorney Fees and Costs, seeking award of attorney fees in the amount of $49,878.80.
Dkt. No. 73. The Defendants prevailed in this action when the Court found against Plaintiff
Gregory Konrath (“Konrath”) on the Defendants’ Motion to Dismiss, pursuant to Indiana’s
Anti-SLAPP statute, Ind. Code §§ 34-7-7-1 et seq. See Dkt. No. 70.
In accordance with the Indiana anti-SLAPP statute, “a prevailing defendant on a
motion to dismiss under [the statute] is entitled to recover reasonable attorney’s fees and
costs.” Ind. Code § 34-7-7-7. The Court also stated in its Order on Anti-SLAPP Motion
to Dismiss that the Defendants were entitled to recover their reasonable attorney fees.
Dkt. No. 70 at 19.
When this Court decides substantive issues of state law, state law must be applied
to determine the reasonableness of an attorney fee award.

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See Dobbs v. DePuy

Orthopedics, Inc., 842 F.3d 1045, 1048 (7th Cir. 2016); see also, Fednav Int’l Ltd. v.
Continental Ins. Co., 624 F.3d 834, 838-39 (7th Cir. 2010) (applying state law to the
determination of reasonable attorney fees where jurisdiction is premised on diversity of
citizenship).

Indiana Rule of Professional Conduct 1.5(a) (“Rule 1.5(a)”) provides

“guidance as to factors to be considered in determining the reasonableness of attorney
fees.” Order for Mandate of Funds Montgomery Cty. Council v. Milligan, 873 N.E.2d 1043,
1049 (Ind. 2007). Rule 1.5(a) lists the following non-exhaustive factors for determining
whether a fee is reasonable:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
Ind. R. Prof. Cond. 1.5(a). See also, Cavallo v. Allied Physicians of Michiana, LLC, 42
N.E.3d 995, 1009-10 (Ind. Ct. App. 2015). A “trial court may also look at the responsibility
of the parties in incurring the attorney fees, and the trial judge has personal expertise he
or she may use in determining reasonable attorney fees.” Cavallo, 42 N.E.3d at 1009.
Market rates actually billed to and paid by a particular client are also “strong evidence
that [the rates] were reasonable.” Containment Tech. Grp., Inc. v. Am. Soc’y of Health
Sys. Pharmacists, No. 1:07-cv-00997, 2009 WL 2750093 at *1 (S.D. Ind. Aug. 26, 2009)
(citing People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996)).
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Although Defendants’ counsel provided an affidavit and itemized invoice that
detailed the services provided by Defendants’ counsel and his firm, including costs, in
connection to this action, the Court requires additional evidence to determine the
reasonableness of the fees described. First, the Court requests that Defendants’ counsel
provide a statement regarding the fees actually billed to the Defendants in relation to this
litigation. Defendants’ counsel must also provide additional evidence to demonstrate that
the rates for each attorney involved in action are reasonable and comparable to the rates
of other attorneys in their respective markets with similar education and years of
experience.
Therefore, Defendants’ counsel shall have fourteen days from the date of this
Order in which to provide the Court with the requested evidence. Upon receiving this
evidence, the Court will determine the reasonableness of the Defendants’ asserted
attorney fees and costs.
IT IS SO ORDERED this 24th day of May, 2017.

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Robert B. Thornburg
FROST BROWN TODD LLC
[e-mail]

GREGORY KONRATH
254068
NEW CASTLE - CF
NEW CASTLE CORRECTIONAL FACILITY - Inmate Mail/Parcels
1000 Van Nuys Road
NEW CASTLE, IN 47362

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