Boilermaker-Blacksmith National Pension Fund et al v. Tesar Industrial Contractors, Inc.

Filing 33

MEMORANDUM AND ORDER Granting 27 Motion for Attorney Fees. Signed by District Judge Carlos Murguia on 06/17/2015. (sv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BOILERMAKER-BLACKSMITH
NATIONAL PENSION FUND, et al.,
Plaintiffs,
v.

Case No. 14-2029

TESAR INDUSTRIAL CONTRACTORS, INC.,
Defendant.

MEMORANDUM AND ORDER
On February 23, 2015, the court granted plaintiffs’ motion for summary judgment, and the
court entered judgment in favor of plaintiffs for unpaid contributions pursuant to Sections 502 and 515
of the Employee Retirement Income Security Act of 1974 (“ERISA”). (Docs. 25 and 26.) In March
2015, plaintiffs filed a Motion for Attorney Fees (Doc. 27), which is the matter before the court.
Plaintiffs submitted a statement regarding its motion for attorney’s fees (Doc. 28) and thus have
complied D. Kan. Rule 54.2. Defendant initially filed a response, opposing the fees as excessive.
After plaintiffs replied, defendant withdrew their opposition to plaintiffs’ motion, rendering plaintiffs’
motion unopposed.1 (Doc. 32.) Nevertheless, the court must determine whether plaintiffs’ request for
$31,437.11 in attorney’s fees and costs is reasonable.
Because this action is brought by a fiduciary for or on behalf of a plan, 29 U.S.C. § 1132(g)(2)
applies. Where a judgment in favor of the plan is entered, the court must award “reasonable attorney’s
fees and costs of the action, to be paid by the defendant.” 29 U.S.C. § 1132(g)(2). Trustees of Colo.
Statewide Ironworkers Apprenticeship Fund v. A & P Steel, Inc., 824 F.2d 817, 818 (10th Cir. 1987).
To determine a reasonable fee award, the court conducts a lodestar calculation by multiplying the
1

To be sure, even in its now-withdrawn response, defendant never challenged the fact they owe plaintiff reasonable
attorney’s fees and costs; rather, defendant disputed the amount.

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number of hours reasonably spent by counsel on the litigation by a reasonable hourly rate.
Boilermaker-Blacksmith Nat’l Pension Fund v. Alliance Constructors, Inc., No. CIV.A. 09-2289-DJW,
2013 WL 1980451, at *5 (D. Kan. May 13, 2013); see also Anchondo v. Anderson, Crenshaw &
Assocs., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010).
The court must first review the number of claimed hours spent by plaintiffs’ counsel on this
case. Plaintiffs bear the burden of showing the claimed hours worked are reasonable. See
Boilermaker-Blacksmith Nat’l Pension Fund v. Ace Polyethylene Bag Co., No. 01-2028-KHV, 2002
WL 372868, at *1 (D. Kan. Mar. 7, 2002). Plaintiffs offer a detailed itemization of the attorney and
paralegal services performed in this case. (See Doc. 29-1.) Plaintiffs have been billed for 155 hours of
time. The court has reviewed the itemization submitted by plaintiff and finds the claimed number of
hours reasonable.
The court must also determine whether plaintiffs’ hourly rate is reasonable by comparing that
rate to the prevailing market rate in the community for attorneys with similar skill and experience.
Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1204 (10th Cir. 1998) (citations omitted). Plaintiffs
were billed: $230.00 per hour for partner-level work performed by Charles R. Schwartz; $200.00 per
hour for associate-level work performed by Carol A. Krstulic; and $110.00 per hour for paralegal work
performed by Kathleen Zans and Chase A. Tweel. This and other courts in this district have found that
the Kansas Bar Association’s Economics of Law Practice Report represents probative evidence of the
prevailing rates in Kansas. Mr. Elec. Corp. v. Khalil, No. 06-2414-CM, 2013 WL 5651398, at *6 (D.
Kan. Oct. 16, 2013); Univ. of Kan. v. Sinks, 2009 WL 3191707, at *11 (D. Kan. Sept. 28, 2009)
(collecting cases). After reviewing the 2012 version of that report, the court finds it accurately
represents the prevailing rates in the Kansas City area. The court therefore finds plaintiffs’ requested
hourly rates are reasonable.

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Thus, the court finds plaintiffs’ claimed number of hours and the hourly rate charged to be
reasonable. Further, defendant no longer opposes plaintiffs’ figures. (Doc. 32.) The court therefore
awards reasonable attorney’s fees in the amount of $30,759.00 to plaintiffs.
Finally, 29 U.S.C. § 1132(g)(2) provides for the recovery of costs of the action. Plaintiffs’
counsel has incurred $678.11 in costs during this action, which includes a filing fee ($400.00), service
of process costs ($118.75), and legal research ($159.36). The court finds these costs reasonable and
awards costs in the amount of $678.11 to plaintiffs.
IT IS THEREFORE ORDERED that plaintiffs’ Motion for Attorney Fees (Doc. 27) is
granted.
IT IS FURTHER ORDERED that plaintiffs are awarded $31,437.11 in attorney’s fees.
Dated this 17th day of June, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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