Luken v. Edwards
Filing
62
MEMORANDUM OPINION AND ORDER: Plaintiff Gene C Luken is awarded $49,000.00 in statutory damages and $49,000.00 in punitive damages for a total amount of damages of $98,000.00: Plaintiff Gene C Luken is awarded $50,733.75 in attorney fees and $1,334.77 in costs: Granting 58 Motion for Attorney Fees: See text of Order for further details. Signed by Judge Mark W Bennett on 10/26/12. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
GENE C. LUKEN,
No. C 10-4097-MWB
Plaintiff,
vs.
TINA MARIE EDWARDS, formerly
known as TINA MARIE LUKEN,
MEMORANDUM OPINION AND
ORDER REGARDING DAMAGES
AND ATTORNEY FEES
Defendant.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 1
II.
BACKGROUND ............................................................................. 2
III.
ANALYSIS ................................................................................... 3
A.
Statutory Damages ................................................................. 3
B.
Punitive Damages .................................................................. 5
C.
Attorney Fees ........................................................................ 6
1.
Block-billing ................................................................. 7
2.
Local Rule 54.1 ............................................................. 7
3.
Lack of Specificity ......................................................... 8
4.
Unreasonable Billing ...................................................... 8
IV.
CONCLUSION ............................................................................ 10
I.
INTRODUCTION
This case arose in the aftermath of the contentious marital dissolution proceeding
between plaintiff Gene C. Luken (“Luken”) and his former wife, defendant Tina Marie
Edwards, formerly known as Tina Marie Luken (“Edwards”). After the divorce was
finalized, Luken found a journal that Edwards had kept during the pendency of the
divorce proceedings where she chronicled her secret recordings of him. Luken sued
Edwards for violating federal wiretapping laws under Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2522 (2006), which provides
a civil cause of action for the unauthorized interception, disclosure or use of wire
communications. After a jury trial, the jury returned a verdict in favor of Luken.
Before me now is the question of damages and attorney fees.
II.
BACKGROUND
On July 24, 2008, after about seven years of marriage, Edwards and Luken filed
for divorce, and their divorce was finalized on June 1, 2010. They both continued to
occupy their marriage residence throughout the pendency of the divorce proceedings
and until sixty days after the divorce decree. At the end of July 2010, Luken found
Edwards’s journal where she had made notes referencing recordings of his
conversations picked up from six voice-activated tape recorders.
On October 22, 2010, Luken filed suit against Edwards under 18 U.S.C. §§
2510–2522 for the unlawful interception of his phone conversations with his attorney
and others. Beginning October 2, 2012, the parties tried the case to an eight-person
jury.
On October 3, 2012, the jury returned a verdict in favor of Luken and
determined that Edwards had improperly intercepted Luken’s private communications
for a total of 490 days.
Section 2520 provides that “the court may assess . . . statutory damages of
whichever is the greater of $100 a day for each day of violation or $10,000,” §
2520(c)(2); “punitive damages in appropriate cases,” § 2520(b)(2); and “a reasonable
attorney’s fee and other litigation costs reasonably incurred,” § 2520(b)(3). The Eighth
Circuit Court of Appeals has held that the court has discretion to award statutory
damages under § 2520. See Reynolds v. Spears, 93 F.3d 428, 434 (8th Cir. 1996).
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“To merit punitive damages under section 2520, [the prevailing party] must prove a
wanton, reckless or malicious violation.” Bess v. Bess, 929 F.2d 1332, 1135 (8th Cir.
1991) (citing Jacobson v. Rose, 592 F.2d 515, 520 (9th Cir. 1978, cert. denied, 442
U.S. 930, 999 (1979)). The Eighth Circuit Court of Appeals has also held that an
award of attorney fees and costs authorized under § 2520(b)(3) is discretionary with the
trial court. See Morford v. City of Omaha, 98 F.3d 398, 401 (8th Cir. 1996).
The parties submitted post-trial briefs on damages and attorney fees. In Luken’s
Brief on Damages, filed on October 15, 2012, he requests the court to award the
highest amount of statutory damages, and he requests punitive damages at five times the
statutory damages. In Edwards’s Brief Regarding Damages, filed on October 16, 2012,
she requests that the court deny Luken’s requests for statutory and punitive damages.
Luken filed his Application for Attorney Fees on October 5, 2012, claiming $50,733.75
in attorney fees and $1,334.77 in costs. Edwards responded to Luken’s Application for
Attorney Fees in her Brief Regarding Damages, requesting that the court deny, or
reduce, the attorney fees award.
III.
ANALYSIS
I now turn to the analysis of damages and attorney fees.
A.
Statutory Damages
Section 2520(c)(2) gives the court discretion to assess “statutory damages of
whichever is the greater of $100 a day for each day of violation or $10,000.”
Therefore, Luken may receive an amount up to $49,000 in statutory damages. While
Luken requests that I award statutory damages in the highest possible amount of
$49,000, Edwards requests that I deny Luken’s request for statutory damages.
In some cases, courts have declined to award statutory damages under § 2520
when the defendant had a legitimate reason to record. In Reynolds v. Spears, the
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Eighth Circuit Court of Appeals held that there was no abuse of discretion when the
trial court declined to award statutory damages against a liquor store owner who
secretly recorded his employees after the store had been burglarized and a law
enforcement officer had told him that wiretapping his own telephone line was legal. 93
F.3d at 436. In Morford v. City of Omaha, the Eighth Circuit Court of Appeals upheld
the trial court’s denial of statutory damages under § 2520 when a law enforcement
officer was testing equipment prior to court approval of a wiretap and recorded the
plaintiff for 90 seconds. 98 F.3d at 400–401.
While Edwards testified that she made secret recordings for self-protection, the
jury did not find this defense sufficient, and I do not find her motive a legitimate
defense to her secret recording activity. In Lewton v. Divingnzzo, 772 F. Supp. 2d
1046 (D. Neb. 2011), the court found that a mother who hid a recording device in her
minor child’s teddy bear and recorded conversations involving her ex-husband and
others to catalog potential abuse over a period of approximately 100 days for use in a
child custody case violated § 2520 and the court awarded $10,000 in statutory damages
to each plaintiff. Like the mother in Lewton, Edwards testified that she made her
recordings to document potential abuse, but the legitimacy of this explanation is
undercut by the fact that she continued to live in the home with Luken. I do not think
Edwards’s defense of recording for self-protection is a legitimate reason to deny the
statutory damages. While making recordings for self-protection may be a legitimate
purpose, it was not a legitimate purpose in this case.
Considering the totality of Edwards’s conduct as reflected in the evidentiary
record, I find that Edwards should be held liable for statutory damages in the amount of
$49,000 under § 2520.
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B.
Punitive Damages
The Eighth Circuit Court of Appeals has held that punitive damages are
appropriate under § 2520 when the prevailing party proves “a wanton, reckless or
malicious violation.” Bess, 929 F.2d at 1135. “[P]unitive damages are imposed for
purposes of retribution and deterrence.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S.
1, 19 (1991).
Luken requests that I award punitive damages at five times the statutory
damages. He contends that this multiple is not excessive since it comports with the
single-digit ratio between punitive and compensatory damages discussed in State Farm
Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). Luken argues that punitive
damages are appropriate “to punish not only Ms. Edwards for her blatant perjury but to
also send a message to the trial bar to caution their clients to refrain from any similar
activity.” Plaintiff’s Brief at 3 (docket no. 60). Edwards argues that there was no
evidence to support an award of punitive damages. Edwards claims that “the plaintiff
suffered no actual damages/harm, the recordings were done for self-protection, there
was very minimal redisclosure of the recordings, no financial gain or benefit from
doing the recordings and a majority of the recordings were destroyed shortly after the
divorce decree was issued.” Defendant’s Brief at 3 (docket no. 61).
I am particularly concerned with Edwards’s interception of privileged attorney
client
communications.
The
attorney-client
privilege
“protects
confidential
communications between a client and her attorney made for the purpose of facilitating
the rendition of legal services to the client.” United States v. Yielding, 657 F.3d 688,
707 (8th Cir. 2011). The evidence shows that Edwards was using the recording devices
throughout the pendency of the divorce proceedings, which allowed her to eavesdrop on
Luken’s conversations with his attorney and others. Since four of the six recorders
were allegedly destroyed, and Edwards edited the two recordings in evidence, there
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likely was a great number of additional intercepted oral communications that were not
in evidence in the trial. I disagree with Edwards’s assertion that there was no “benefit
from doing the recordings.” In trial, Luken testified, “I was just baffled by the fact
that no matter what my attorney and I had discussed in terms of how we could settle
this or what we could do . . . she was always one step ahead of me.” Edwards
benefited from eavesdropping on planning and strategy conversations that Luken had
with his attorney. Edwards’s interception of these privileged conversations, especially
as an adverse party during the course of the divorce trial, is particularly reprehensible.
Luken asked for punitive damages in part based on Edwards’s trial testimony
that the jury obviously disbelieved. I, too, found her core testimony untruthful and not
believable. However, Luken cites no legal authority that false testimony under oath at
trial, rather than facts giving rise to a legal cause of action may support punitive
damages, and I know of none. Doubling the statutory damages fulfills all the purposes
of punitive damages in this case. It is worth noting that Luken’s undoubted motivation
in filing this lawsuit was not to protect and extend the important public interest in
federal statutory privacy rights articulated in 18 U.S.C. §§ 2510–2522. Luken is no
public interest crusader yearning to vindicate important privacy interests as a private
attorney general.
He is an angry ex-spouse, still hurting from the betrayal of his
former spouse Edwards and their exceptional contentious divorce and post-divorce
litigation.
I award punitive damages in the amount of $49,000.
C.
Attorney Fees
Section 2520(b)(3) maintains that a person whose communication is unlawfully
intercepted may recover “a reasonable attorney’s fee and other litigation costs
reasonably incurred.” I have discretion to determine the award of attorney fees and
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costs authorized under § 2520(b)(3). See Morford, 98 F.3d at 401. Luken filed his
Application for Attorney Fees on October 5, 2012, claiming $50,733.75 in attorney
fees and $1,334.77 in costs for work from October 2010 to October 2012. Edwards
responded to Luken’s Application for Attorney Fees in her Brief Regarding Damages,
on October 16, 2012. Edwards requests that I deny Luken’s request for attorney fees,
and in the alternative, she requests that I reduce the amount of attorney fees on the
ground that the amount requested is unreasonable.
1.
Block-billing
Edwards seeks a percentage reduction for “block-billing” in Luken’s fee request.
A reduction for “block-billing” is appropriate for “billing entries that specify only the
daily activities, but that do not specifically indicate how much time was spent on each
individual task.” Dorr v. Weber, 741 F. Supp. 2d 1022, 1036 (N.D. Iowa 2010)
(internal quotation marks omitted). Here, Luken’s counsel did not specifically itemize
all of the entries in his statement for services. Many of the entries by Luken’s counsel
are block-billed, such as the single entry on May 7, 2012 for 18 hours of work:
“Preparation for depositions; listen to tapes produced and notes; conference concerning
motions; deposition of Tina Edwards and Voanne Edwards.” Plaintiff’s Application for
Attorney Fees (docket no. 58). A 10% reduction in the claim for attorney fees for
block-billing is appropriate in this case.
2.
Local Rule 54.1
Edwards requests a reduction for Luken’s counsel’s failure to comply with Local
Rule 54.1, which requires that lawyers seeking fees “include a separate summary
indicating the total time spent performing each of the following major categories of
work:”
1. Drafting pleadings, motions, and briefs;
2. Legal research;
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3. Investigation;
4. Interviewing;
5. Trial preparation; and
6. Trial.
N.D. IOWA L.R. 54.1(a). Here, Luken’s counsel did not include a separate summary
to show the total time spent in the major categories of work. By failing to include this
required summary, Luken’s counsel has “deprived me of a clear snapshot” of how he
managed his time. See Gilster v. Primebank, --- F. Supp. 2d ----, 2012 WL 3518507
(N.D. Iowa 2012), at *40. A 5% reduction in the claim for attorney fees is appropriate
for Luken’s counsel’s failure to comply with Local Rule 54.1.
3.
Lack of Specificity
Edwards seeks a percentage reduction for the lack of specificity in the statement
for services attached to the fee request. “Specificity is the most vital tool in assisting
courts in reasonableness review.” Id. Here, there are several entries with insufficient
documentation. For instance, the journal was reviewed on several different dates, but
the vague entry descriptions fail to indicate what type of work was conducted on those
dates. A 5% reduction in the claim for attorney fees for the lack of specificity is
appropriate in this case.
4.
Unreasonable Billing
Edwards argues that the fee affidavit claiming nearly 200 hours of work is
excessive and unreasonable, since the trial only lasted one and a half days, only five
witnesses testified, and there were no lengthy motions or briefings. In Dorr, I applied
a 10% reduction for a “wildly overreaching” fee request by three attorneys in a simple
section 1983 action.
741 F. Supp. 2d at 1034–37.
I disagree with Edwards and
conclude that this case is distinguished from Dorr because Luken’s counsel did not
submit an excessive number of hours. I do not find Luken’s fee request over-inflated.
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On the contrary, Luken’s counsel exercised excellent billing judgment.
In
Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933 (1983), the Supreme Court
discussed billing considerations in determining reasonableness of attorney fees:
The district court also should exclude from this initial fee
calculation hours that were not “reasonably expended.” S.
Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed,
and the skill and experience of lawyers vary widely. Counsel
for the prevailing party should make a good faith effort 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 his fee submission. “In the private sector, ‘billing
judgment’ is an important component in fee setting. It is no
less important here. Hours that are not properly billed to
one’s client also are not properly billed to one’s adversary
pursuant to statutory authority.” Copeland v. Marshall, 205
U.S. App. D.C. 390, 401, 641 F.2d 880, 891 (1980) (en
banc) (emphasis in original).
Hensley, 461 U.S. at 433–34; see also Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)
(“The type of services rendered by lawyers, as well as their experience, skill and
reputation, varies extensively—even within a law firm.”). At the trial, Luken’s counsel
was joined by Andrea Smook, a young associate attorney, trying her first case out of
law school. Although Ms. Smook assisted with research and attended the trial, Luken’s
counsel did not bill for Ms. Smook’s time. By excluding Ms. Smook’s time, Luken’s
counsel demonstrated his “good faith effort to exclude from a fee request hours that are
excessive, redundant or otherwise unnecessary.” Hensley, 461 U.S. at 433–34. In fact
he went way beyond the mere exercise of good billing judgment. It would have been
reasonable for Luken’s counsel to have billed for Ms. Smook’s time, since she assisted
with the trial and even gave the rebuttal closing argument.1 It is important that younger
1
Ms. Smook did an outstanding job in her first federal court closing argument.
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attorneys get trial experience, especially on civil cases in federal court, which as we all
know, is increasingly difficult to do. The decision to exclude Ms. Smook’s time from
the fee request indicates that Luken’s counsel was not overreaching and demonstrated
excellent billing judgment, especially in light of the fact the Edwards was also
represented by two lawyers far more experienced than Ms. Smook.
Therefore, considering both sides of the ledger, the excellent billing judgment
outweighs the block-billing, failure to follow Local Rule 54.1, and lack of billing
specificity, and I will not apply a reduction to the attorney fees. Ultimately, I find that
the fees and expenses claimed provide reasonable compensation for the work
performed.
IV.
CONCLUSION
1. Luken is entitled to $49,000 in Statutory Damages and $49,000 in Punitive
Damages, for a total amount of damages of $98,000.
2. While I have noted that the attorney fees should be reduced by 10% for blockbilling, 5% for the failure to comply with Local Rule 54.1, and 5% for the lack of
billing specificity, the excellent billing judgment demonstrated by Luken’s counsel
outweighs the need to make any reductions.
Attorney Fees is granted.
Therefore, Luken’s Application For
Luken is awarded $50,733.75 in attorney fees and
$1,334.77 in costs.
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IT IS SO ORDERED.
DATED this 26th day of October, 2012.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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