Skyline Trucking, Inc. v. Freightliner Truck Center Companies et al
Filing
71
MEMORANDUM AND ORDER granting in part and denying in part 49 Motion for Attorney Fees. The court awards defendant Transwest's attorneys' fees in the amount of $43,280.10. And the court denies Transwest's request for costs under Rule 54(d)(1). Signed by District Judge Daniel D. Crabtree on 3/26/2024. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SKYLINE TRUCKING, INC.,
Plaintiff,
v.
Case No. 22-4052-DDC-TJJ
TRUCK CENTER COMPANIES,
TRANSWEST TRUCK TRAILER RV,
AND DAIMLER TRUCK NORTH
AMERICA LLC,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This matter is before the court on defendant Transwest Truck and Trailer RV’s Motion
for Attorneys’ Fees and Costs (Doc. 49). On July 28, 2023, the court dismissed Transwest from
the case for lack of personal jurisdiction. See Doc. 43 at 25. Transwest now requests $53,301.00
for attorneys’ fees as costs incurred defending against plaintiff Skyline Trucking, Inc.’s claims.
See Doc. 49 at 9. The court grants in part and denies in part Transwest’s request for attorneys’
fees. The court awards Transwest attorneys’ fees, but adjusts the award’s amount under the
reasonableness analysis required by Kansas law. Before outlining the reasons for its decision,
the court recites the relevant background facts and procedural history.
I.
Background Facts and Procedural History
In June 2020, plaintiff began experiencing problems with its truck when driving through
Kansas to fulfill a shipping contract. Doc. 1-1 at 3–4 (Pet. ¶¶ 9–10). Plaintiff took its truck to
defendant Truck Center’s shop for repair.1 Id. at 4 (Pet. ¶ 11). A few days later, Truck Center
1
While plaintiff sued multiple defendants, only defendant Transwest moves for attorneys’ fees.
informed plaintiff that it had completed the repairs, and plaintiff paid $11,750.55 for Truck
Center’s services. Id. (Pet. ¶¶ 12–13). Plaintiff then resumed driving its route, but the truck
continued to manifest mechanical problems. Id. (Pet. ¶¶ 13–14). Plaintiff reported these
problems to Truck Center repeatedly. Id. (Pet. ¶ 15). Truck Center replied that it had repaired
the truck and assured plaintiff that the problem would resolve itself. Id. (Pet. ¶¶ 15–16). The
next day, the truck’s engine seized while plaintiff was driving on a highway in Colorado. Id.
(Pet. ¶ 19). The incident rendered the truck inoperable. Id.
Plaintiff had the truck towed to defendant Transwest’s shop. Id. at 5 (Pet. ¶ 23). Plaintiff
informed Transwest about the truck’s recent repair by Truck Center. Id. (Pet. ¶ 25). And
plaintiff’s agent signed a Repair Order, which included a collection/dispute policy provision on
the back. Doc. 49-1 at 2–3 (Def.’s Ex. A); Doc. 50 at 4–5. Several days passed and plaintiff
didn’t hear from Transwest. Doc. 1-1 at 5 (Pet. ¶ 26). Then, plaintiff learned that Transwest had
removed the truck’s engine head without notifying or securing permission from plaintiff. Id.
(Pet. ¶ 27). Plaintiff then complained to Transwest’s corporate office, defendant Daimler Truck
North America LLC. Id. (Pet. ¶ 28).
Unable to resolve the truck’s problems satisfactorily, plaintiff filed this action in Saline
County District Court in Kansas on June 13, 2022. Id. at 2 (Pet.). On September 19, 2022,
Transwest’s counsel emailed plaintiff’s counsel and highlighted the exclusive jurisdiction and
venue provision in the parties’ Repair Order contract. Doc. 49-2 at 2 (Def.’s Ex. B). In the
email, Transwest’s counsel warned plaintiff’s counsel that it would file a motion to dismiss and
seek attorneys’ fees under the parties’ contract unless plaintiff dismissed Transwest from the
Kansas action. Id. Less than two weeks later, Truck Center removed this action to federal court.
See Doc. 1.
2
After removal, Transwest filed a Motion to Dismiss for Lack of Jurisdiction (Doc. 13).
Transwest argued that plaintiff hadn’t met its burden to make a prima facie showing that Kansas
had personal jurisdiction over Transwest. Doc. 14 at 3. Transwest also argued that the court
should dismiss plaintiff’s claims against it under the Repair Order’s forum selection clause. Id.
at 8. And Transwest also moved for attorneys’ fees under the Repair Order’s plain language. Id.
at 2. The relevant portions of the Repair Order provide:
In the event any account or invoice is referred for collection or there is any other
dispute concerning the repair order the customer shall pay all reasonable attorneys’
fees and all other costs and expenses of collection. . . . In the event that any party
brings a lawsuit (or other proceeding) for the purpose of enforcing or otherwise
relating to this repair order or any account or invoice, exclusive jurisdiction and
venue shall be in the County or District Court for the County of Adams, State of
Colorado[.]
Doc. 14-1 at 12; Doc. 49-1 at 3 (Def.’s Ex. A).
The court granted defendant Transwest’s Motion to Dismiss (Doc. 13) based on lack of
personal jurisdiction under Fed. R. Civ. P. 12(b)(2). See Doc. 43 at 24. The court did not
address the contract’s forum selection clause. Id. The court also denied Transwest’s request for
attorneys’ fees, but without prejudice. Id. at 25. The court explained that Fed. R. Civ. P. 54
requires a party to assert a claim for attorneys’ fees by motion “unless the substantive law
requires those fees to be proved at trial as an element of damages.” Id. at 24 (quoting Fed. R.
Civ. P. 54(d)(2)(A)). Transwest now moves for attorneys’ fees under Rule 54. Doc. 49.
The court evaluates Transwest’s motion in the following sequence: First, the court
addresses the merits of a fee award under the terms of the parties’ Repair Order contract. Then,
after awarding fees under the contractual provision, the court declines to reach Transwest’s bad
faith exception argument. Instead, the court moves on to a reasonableness analysis, evaluating
the reasonableness of the requested fees under the relevant Kansas law, Kansas Rule of
3
Professional Conduct (KRPC) 1.5(a). Last, the court concludes by summarizing its adjustments
to the fee award under the reasonableness analysis and awards Transwest a modified sum.
II.
Attorneys’ Fees Award under the Parties’ Contract
Transwest contends that the court should award it attorneys’ fees for two reasons: (i)
Transwest is entitled to attorneys’ fees based on the plain language of the Repair Order and (ii)
plaintiff’s bad faith creates an exception to the American Rule for attorneys’ fees. Doc. 49 at 3–
6. The court’s analysis starts with the plain language argument. The court recites the legal
standard for attorneys’ fee awards under a contractual provision, below.
A.
Legal Standard for Contractual Fee Award
Fed. R. Civ. P. 54(d) allows a party to move for attorneys’ fees. It requires that such
motion “specify the judgment and the statute, rule, or other grounds entitling the movant to the
award[.]” Fed. R. Civ. P. 54(d)(2)(B)(ii). Where those other grounds include a contractual
provision—that is, where contracting parties have agreed to shift attorneys’ fees—the fee award
simply provides the parties with the benefit of their bargain. U.S. ex rel. C.J.C., Inc. v. Western
States Mech. Contractors, Inc., 834 F.2d 1533, 1548 (10th Cir. 1987). And so, courts should
enforce—and routinely do enforce—the parties’ bargain by awarding fees according to the
contract’s terms. Id. at 1547–48. In doing so, the court must follow the plain language of the
agreement.
Indeed, under Kansas contract law,2 “courts do not construe contracts but merely enforce
the contract terms in accordance with their plain and ordinary meanings”—absent ambiguity.
Sheldon v. KPERS, 189 P.3d 554, 561 (Kan. Ct. App. 2008). And courts
2
Both parties apply Kansas law in their briefing on this motion. Neither party ever explains why
Kansas law should apply. Transwest correctly asserts that—in a diversity action—state substantive law
governs a party’s right to recover attorney fees as the prevailing party. Doc. 49 at 3 (citing Boyd Rosene
& Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351, 1352 (10th Cir. 1997)). But Transwest doesn’t
4
have the duty to sustain the legality of a contract in whole or in part when the
contract was fairly entered into and it is reasonably possible to do so, rather than
seeking loopholes and technical legal grounds for defeating the contract's intended
purpose. The paramount public policy is that freedom of contract should not be
interfered with lightly.
Wichita Clinic, P.A. v. Louis, 185 P.3d 946, 951 (Kan. Ct. App. 2008). In light of this legal
standard, analyzing the contract’s fee-shifting provision is a straightforward endeavor.
B.
Analysis of the Contract’s Fee-Shifting Provision
Here, the contract provides as follows: “In the event any account or invoice is referred
for collection or there is any other dispute concerning the repair order the customer shall pay all
reasonable attorneys’ fees and all other costs and expenses of collection.” Doc. 49-1 at 3 (Def.’s
Ex. A). The plain language of the contract is clear. The customer pays all reasonable attorneys’
fees when the parties dispute the repair order. The court finds no ambiguity about who must pay
or in what situations the provision applies. The court thus sees no basis to construe the parties’
contract differently. And so, the court must enforce the contract’s plain and ordinary meaning:
plaintiff, as the customer, must pay Transwest’s reasonable attorneys’ fees.
premise its motion on its status as a prevailing party. Instead, Transwest asks the court to “enforce the
provisions” of the parties’ contract. Doc. 52 at 2. And the contract includes the following choice of law
provision: “All disputes related to this repair order or any account or invoice shall be governed and
construed in accordance with the laws of the State of Colorado, Missouri, and Texas.” Doc. 49-1 at 3
(Def.’s Ex. A). Kansas isn’t one of the states chosen by the contract.
When a court sits in diversity, it must apply the conflict of laws rules of the state in which it sits
to determine the applicable law. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). In
Kansas, if the relevant contract contains a choice of law provision, “Kansas courts generally effectuate the
law chosen by the parties to control the agreement.” Brenner v. Oppenheimer & Co., 44 P.3d 364, 375
(Kan. 2002). Given this conflict of laws rule, the court questions whether Kansas law is the correct law to
apply here. But plaintiff doesn’t raise any objection to Transwest’s use of Kansas law. Indeed, plaintiff’s
Response assumes that Kansas law controls. See, e.g., Doc. 50 at 2–3 (citing Kansas law for the
definition of a “prevailing party” and discussion of the “net judgment rule”). Plaintiff thus waived its
right to challenge Transwest’s application of Kansas law. And the parties don’t brief the issue. So, the
court follows the parties’ lead and applies Kansas law to the matter at hand. See Monarch Casino &
Resort, Inc. v. Affiliated FM Ins. Co., 85 F.4th 1034, 1039 (10th Cir. 2023) (explaining the court’s choice
to apply Colorado law, in part, because “the parties have chosen to use Colorado law”).
5
Despite the contract’s apparent clarity, plaintiff asks this court to withhold the attorneys’
fees award because Transwest isn’t the prevailing party or, in the alternative, because the
unilateral nature of the contractual provision awarding fees is unconscionable.3 The court will
address each request in turn.
C.
Prevailing Party
The court agrees with plaintiff. Transwest is not the prevailing party in this litigation.
First, a dismissal for lack of personal jurisdiction is not a judgment on the merits and prevailing
on a jurisdictional challenge doesn’t make the winner a prevailing party. Murray v. Jewell Cnty.,
Kan., No. 11-CV-00596, 2011 WL 2601528, at *4 (D. Colo. June 30, 2011). And, second,
Kansas courts have “adopted the definition of ‘prevailing party’ from Black’s Law Dictionary[.]”
Curo Enters., LLC v. Dunes Residential Servs., Inc., 342 P.3d 948, 956 (Kan. Ct. App. 2015).
This definition reads as follows:
“The party to a suit who successfully prosecutes the action or successfully defends
against it, prevailing on the main issue, even though not necessarily to the extent of
his original contention. The one in whose favor the decision or verdict is rendered
and judgment entered. . . . The party ultimately prevailing when the matter is finally
set at rest.”
Id. (quoting Prevailing Party, Black’s Law Dictionary (5th ed. 1979)).
3
Plaintiff also argues that the Repair Order’s language doesn’t grant attorneys’ fees unless they are
related to a collection dispute. Doc. 50 at 4–5. Plaintiff highlights the following language in the Repair
Order: “In the event any account or invoice is referred for collection or there is any dispute concerning
the repair order the customer shall pay all reasonable attorneys’ fees and all other costs and expenses of
collection.” Id. (quoting Doc. 49-1 at 3 (Def.’s Ex. A)). Then plaintiff contends that “this is not a
collection matter.” Id. at 5. But the relevant language explicitly allows for a “dispute” other than one
related to a collection. And the context surrounding plaintiff’s identified language clarifies the
provision’s scope: “In the event that any party brings a lawsuit (or other proceeding) for the purpose of
enforcing or otherwise relating to this repair order or any account or invoice . . . .” Id. at 5 (quoting Doc.
49-1 at 3 (Def.’s Ex. A)). Even if the contractual language were less clear, the Tenth Circuit has
interpreted collection costs broadly. Okla. Fixture Co. v. Ask Comput. Sys., Inc., 45 F.3d 380, 382 (10th
Cir. 1995) (“The contract language ‘all reasonable collection costs’ is a broad term, and a common sense
reading includes attorney’s fees.”) So, the court concludes, plaintiff’s textual argument here is meritless.
6
Here, Transwest didn’t secure a judgment on the merits. Instead, the court dismissed
Transwest for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). See Doc. 43 at 24.
So, Transwest, as the dismissed party, isn’t a prevailing one. Murray, 2011 WL 2601528, at *4.
And, given the way Kansas law defines the term, Transwest didn’t successfully defend against
the action or prevail on the main issue. Curo Enters., 342 P.3d at 956. The court likewise
rendered no decision on the merits and it entered no judgment. Id. Indeed, the court’s lack of
personal jurisdiction over Transwest precluded any such decision or judgment. Transwest isn’t a
prevailing party.
But the contractual provision awarding Transwest attorneys’ fees doesn’t require it to
prevail. While that’s curious, the plain language of the Repair Order requires the customer to
pay all reasonable attorneys’ fees. Doc. 49-1 at 3 (Def.’s Ex. A). The contract attaches no
conditions. And so, the contract provides that the court should award Transwest attorneys’
fees—regardless of its prevailing party status. This conclusion logically leads to plaintiff’s
second argument: such an expansive contract provision is unconscionable. The court addresses
this argument next.
D.
Unconscionability
Plaintiff contends that—even if the contract does provide for attorneys’ fees without
requiring prevailing party status—such a provision is unconscionable and thus unenforceable.
Doc. 50 at 5. Under Kansas law, a contract, or contract provision, is unconscionable when it is
“outrageous,” “unfair,” “shocks the conscience,” or “is so one-sided that no reasonable person
would view it as just.” Stormont-Vail Hosp. v. Spurling, 331 P.3d 834, 2014 WL 4082469, at *4
(Kan. Ct. App. 2014) (citation omitted). “But a contract is not unconscionable solely because of
a bad bargain or uneven bargaining power.” State v. Bell, 344 P.3d 397, 2015 WL 1123022, at
7
*2 (Kan. Ct. App. 2015). Absent “proof of fraud, mistake, or duress, a party is bound by the
contract he signs—even if the contract’s provisions are disadvantageous to him or he failed to
read it.” Spurling, 2014 WL 4082469, at *4 (citations omitted). And the “party seeking to prove
that a contract is invalid has the burden of establishing its unconscionability.” Id. at *5 (citation
omitted).
To support its unconscionability argument, plaintiff lists ten factors Kansas courts have
used to identify an unconscionable contract provision. Doc. 50 at 5–6. Those factors are:
(1) The use of printed form or boilerplate contracts drawn skillfully by the party in
the strongest economic position, which establish industry wide standards offered
on a take it or leave it basis to the party in a weaker economic position; (2) a
significant cost-price disparity or excessive price; (3) a denial of basic rights and
remedies to a buyer of consumer goods; (4) the inclusion of penalty clauses; (5) the
circumstances surrounding the execution of the contract, including its commercial
setting, its purpose and actual effect; (6) the hiding of clauses which are
disadvantageous to one party in a mass of fine print trivia or in places which are
inconspicuous to the party signing the contract; (7) phrasing clauses in language
that is incomprehensible to a layman or that divert his attention from the problems
raised by them or the rights given up through them; (8) an overall imbalance in the
obligations and rights imposed by the bargain; (9) exploitation of the
underprivileged, unsophisticated, uneducated and the illiterate; and (10) inequality
of bargaining or economic power.
Santa Rosa KM Assocs., Ltd., P.C. v. Principal Life Ins. Co., 206 P.3d 40, 50 (Kan. Ct. App.
2009) (quotation cleaned up).
Plaintiff asserts that four of those factors apply here: “(1), (5), (6) and (10) are at a
minimum present here.” Doc. 50 at 6. Full stop. Plaintiff identifies the allegedly pertinent
factors by numerical designation alone. Plaintiff makes no attempt to expound on these factors
or explain how they apply to the present facts. To be sure, earlier in its brief, plaintiff describes
the attorneys’ fees provision as “boilerplate” and notes that it appears “on the back of the repair
order,” “after the signature section,” and was “drafted by Transwest—the party in the strongest
economic position at the time of contracting[.]” Id. at 5. The court can surmise—and absent any
8
clear argument by the plaintiff, surmising is all the court can do—that this description may
reference the first and sixth factors:
(1) The use of printed form or boilerplate contracts drawn skillfully by the party in
the strongest economic position, which establish industry wide standards offered
on a take it or leave it basis to the party in a weaker economic position . . . (6) the
hiding of clauses which are disadvantageous to one party in a mass of fine print
trivia or in places which are inconspicuous to the party signing the contract[.]
Id. at 5–6 (quoting Santa Rosa, 206 P.3d at 50). But, even if the court credits plaintiff with
raising those two factors based on the brief’s earlier description, plaintiff fails to offer any
support for the fifth and tenth factors. Instead, plaintiff leaves the court to peel that onion. But
plaintiff—as the party attacking the contract—bears the burden to establish unconscionability as
the party attacking the contract. It’s not the court’s job. And factors (5) (the circumstances
surrounding the contract’s execution) and (10) (the inequality of power) both require explanation
and factual support. Plaintiff has failed to carry its burden.
What’s more, even if the court elected to peel the onion for plaintiff—and finds all four
factors favor plaintiff—that’s still not enough. Plaintiff never explains how four factors (out of
ten) tip the scale in its favor. Indeed, in Spurling, the Kansas Court of Appeals held a contract
enforceable when three of the ten unconscionability factors weighed against enforcement. 2014
WL 4082469, at *5–6.
Here, plaintiff asserts four out of ten factors weigh against enforcement. The court thus
may assume the other six factors favor enforcement of the contract as written.4 So, were even
one of plaintiff’s alleged factors to swing the other way, the balance would mirror Spurling.
And, given that balance, the court presumably could find the contract enforceable. Naturally, the
4
True, plaintiff includes the phrase “at a minimum” before its assertion that four factors weigh
against enforceability. Doc. 50 at 6. But—to allege additional factors—plaintiff could simply have typed
additional numbers. Plaintiff didn’t. The court refuses to consider factors not invoked by plaintiff,
particularly when invoking them would have required so little effort.
9
court recognizes that a factors analysis is not a sheer numbers game. And the court
acknowledges that the three factors here may differ from the three factors in Spurling. The court
simply strives to highlight the paucity of support plaintiff has provided. Surely the proposition
that only four out of ten factors suffice to tip the scale in favor of unenforceability merits at least
some argument—particularly when Kansas case law demonstrates that three out of ten won’t
suffice. But plaintiff offers no such argument.
Nor has the court independently discovered a reason not to enforce the attorneys’ fees
provision here. To be sure, the court’s research revealed that some states perceive unilateral
attorneys’ fees to violate public policy. And those states have instituted legislation requiring
courts to translate such provisions into reciprocal clauses. See Curo Enters., 342 P.3d at 955
(“California has a reciprocity rule which forbids unilateral attorney fee provisions in contracts.”
(citing Cal. Civ. Code § 1717)); see also Vasquez v. Paso Fino Horse Ass'n Inc., No. 5:18-366,
2019 WL 3842863, at *3 (E.D. Ky. Aug. 14, 2019) (“Several states have enacted legislation
overriding contractual provisions which provide that only one party may recover attorney's fees.”
(citing Cal. Civ. Code § 1717; Wash. Rev. Code § 4.84.330; Fla. Stat. Ann. § 57.105(7))). But
Kansas isn’t one of those states. Instead, the Kansas legislature has limited its concerns about
unilateral attorneys’ fees to contracts arising in the residential landlord/tenant context. See Kan.
Stat. Ann. § 58-2547(a)(3); see also Jeffrey C. Bright, Unilateral Attorney’s Fees Clauses: A
Proposal to Shift to the Golden Rule, 61 Drake L. Rev. 85, 89 n.13, 114 n.143 (2012)
(categorizing states’ responses to unilateral attorneys’ fees clauses—into those with reciprocal
fees statutes, limited reciprocal fees statutes, some protections, and no protections—and placing
Kansas in the some protections category based on Kan. Stat. Ann. § 58-2547(a)(3)).
10
So, plaintiff hasn’t carried its burden to establish the contract provision’s
unconscionability. And the court hasn’t discovered an alternative basis to hold the provision
unenforceable. Even if plaintiff now believes the contract is a bad bargain—absent mistake,
duress, or fraud—the court must enforce it. Spurling, 2014 WL 4082469, at *4. And plaintiff
hasn’t pleaded mistake, duress, or fraud. The court thus holds the attorneys’ fees provision
enforceable and awards reasonable attorneys’ fees to Transwest under the contract’s terms.
Because the court grants fees under the relevant contractual provision, it needn’t decide
whether plaintiff’s alleged bad faith entitles Transwest to attorneys’ fees. Instead, the court
determines, next, the amount it should award Transwest under the contract’s provision—a
determination that turns on reasonableness.
III.
The Reasonableness of Transwest’s Attorneys’ Fees
Transwest seeks an award of $53,301 for 159 labor hours performed by five attorneys and
three paralegals. Doc. 49 at 7–9. The court evaluates the reasonableness of these fees, first, by
reciting the controlling legal standard under Kansas law.
A.
Legal Standard for Fee Award Reasonableness
Kansas courts apply a different standard when analyzing the reasonableness of a request
for attorneys’ fees under a contract compared to a fee request authorized by statute. Enter. Bank
& Tr. v. Barney Ashner Homes, Inc., 300 P.3d 115, 2013 WL 1876293, at *21 (Kan. Ct. App.
May 3, 2013). A statute-based award grants “fees to a prevailing party to support litigation
serving the public good[.]” Id. In contrast, a contract-based award serves “purely private
interests.” Id. And so, “where attorney fees are awarded based on the contractual agreement of
the parties, [courts] have no independent duty to peruse the itemized statements for
reasonableness in the absence of particularized objections.” Id.
11
Despite the differing standard for statutory and contract-based fee awards, “the district
court should not ‘simply award the full amount billed’ but clearly ha[s] discretion to adjust a
contractual award of fees if an award is inequitable or unreasonable.”5 Westar Energy, Inc. v.
Wittig, 235 P.3d 515, 532 (Kan. Ct. App. 2010) (quoting Western States, 834 F.2d at 1548). The
Kansas Supreme Court has determined a court should exercise such discretion by applying “the
reasonableness factors of Rule 1.5 of the Kansas Rules of Professional Conduct[.]” Westar
Energy, Inc. v. Lake, 552 F.3d 1215, 1228 (10th Cir. 2009) (citing, for awarding fees under a
contractual provision, Davis v. Miller, 7 P.3d 1223, 1236 (Kan. 2000)); see also Kan. Penn
Gaming, LLC v. HV Props. of Kan., LLC, 790 F. Supp. 2d 1307, 1314 (D. Kan. 2011) (holding
that when a contract provides for reasonable attorneys’ fees, the court must apply the KRPC
1.5(a) factors). Those eight factors are:
“(1) the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal 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;”
5
The court acknowledges the Tenth Circuit has rejected applying Western States’s “inequitable or
unreasonable” test—in favor of applying KRPC 1.5(a)—to a contractual award of fees when a contract
explicitly provides the fees should be reasonable. Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1229 (10th
Cir. 2009). And the Kansas Court of Appeals agreed with the Tenth Circuit’s rejection. Westar Energy,
Inc. v. Wittig, 235 P.3d 515, 532 (Kan. Ct. App. 2010) (“We agree with the analysis performed by the
10th Circuit Court of Appeals in Lake when it accurately predicted the Kansas Supreme Court would look
to the various factors listed in KRPC 1.5(a) to assess the reasonableness of attorney fees arising from an
agreement to pay them.”). Nonetheless, the Kansas Court of Appeals explicitly endorsed aspects of
Western States. Id. (“Even so, we note the court in Western States makes clear that the district court
should not ‘simply award the full amount billed’ but clearly had discretion to adjust a contractual award
of fees if an award is inequitable or unreasonable.”). And the Kansas court cited with approval Western
States’s distinction between the court’s duty when evaluating attorneys’ fees awarded under statute as
opposed its duty for fees awarded under contract. Id. And so, the court exercises the discretion to adjust
the fee award amount here—not simply awarding the full amount billed—even though the court doesn’t
apply the “inequitable or unreasonable” test endorsed in Western States.
12
“(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.”
Wittig, 235 P.3d at 529 (quoting KRPC 1.5(a)).
Kansas courts have clarified that a court must address these eight factors—rather than
simply relying on a lodestar6 calculation. Richardson v. Murray, 469 P.3d 104, 2020 WL
4723097, at *5–6 (Kan. Ct. App. 2020). Indeed, the Kansas Court of Appeals instructs “that in
awarding attorney fees, the law requires consideration of all relevant factors, not merely time
spent multiplied by an hourly rate.” Id. at 5 (internal quotation marks and citation omitted).
Finally, the party seeking attorneys’ fees and expenses bears the burden of proving the
reasonableness of the amount sought. Wittig, 235 P.3d at 532 (discussing Lake, 552 F.3d at
1229).
Thus, the court examines the eight KRPC 1.5(a) factors next to determine if Transwest
has met its burden to prove the reasonableness of the amount sought. In doing so, the court will
not “peruse the itemized statements” but will focus instead on plaintiff’s “particularized
objections.” Enter. Bank & Tr., 2013 WL 1876293, at *21.
6
The “lodestar” figure is “the reasonable number of hours spent on litigation multiplied by a
reasonable hourly rate.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th
Cir. 2000) (citation omitted).
13
B.
The Reasonableness of the Award
1.
Time and Labor Required; Novelty and Difficulty; Requisite Skill
Most of plaintiff’s objections about the award’s reasonableness fall under the first KRPC
1.5(a) factor. Recall, this first factor reads: “the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to perform the legal service
properly[.]” KRPC 1.5(a)(1). Plaintiff alleges that Transwest’s 159 billed hours exceeds what’s
required for such a straightforward action, which is neither novel nor difficult. Doc. 50 at 7.
And plaintiff argues that the time billed is excessive because the case was overstaffed. Utilizing
five attorneys and three paralegals across two firms creates inherent inefficiencies, plaintiff
avers. Id. at 7–8. Finally, plaintiff contends that the court shouldn’t award the fees requested for
clerical work, block-billed work, or pro hac vice work—at least not at the attorney rate. In short,
under this first factor, plaintiff objects to: (a) the amount of time Transwest required; (b) the
amount of staff Transwest utilized; and (c) the type of work Transwest claims qualifies for a fee
award. The court evaluates each objection, in turn, below.
a.
Time Required
Transwest’s counsel bears the burden of establishing the reasonableness of the 159 hours
they expended. Plaintiff challenges the hours, first, as excessive given the absence of novelty or
complexity in this case. Id. at 9. Plaintiff alleges, for instance, that “[c]alculating the response
deadline to a motion to dismiss does not take 0.90 hours, and it is doubtful that 10.3 hours were
reasonably and necessarily spent in one day researching and drafting a reply brief and attending a
Rule 26(f) meeting.” Id. The court agrees with plaintiff that this case—a contract dispute with
accompanying tort claims—is straightforward. And the court agrees that Transwest’s litigation
14
of this case also wasn’t complicated.7 Such a determination weighs against a reasonableness
finding, suggesting the hours billed are excessive and warrant a downward adjustment.
b.
Staff Utilized
Plaintiff also contends the hours piled up quickly because Transwest overstaffed this
case. Our court has reduced attorneys’ fee awards under a KRPC 1.5(a) reasonableness analysis
because a party “overlawyered” a case. Kan. Penn Gaming, 790 F. Supp. 2d at 1317. In Kansas
Penn Gaming, the court noted the “instances where several attorneys and support staff were
involved in the review and production of certain documents[,]” and agreed “that the billing
statements reflect[ed] excessive duplication[.]” Id. Concluding parts of the case “were
overlawyered,” the court reduced by 25% the total hours billed. Id. And in M.B. v. Howard, this
court instituted a general reduction of 20% due to the inefficiencies inherent in staffing a case
with 25 attorneys and seven staff members across five distinct organizations. 555 F. Supp. 3d
1047, 1077 (D. Kan. 2021). As these cases indicate, if indeed Transwest overstaffed, then, the
court may reduce the fees award. So, did they?
Plaintiff purports to identify specific indications of Transwest’s overstaffing, such as
duplicative work. “The term duplicative in the context of attorney’s fees requests usually refers
to situations where more than the necessary number of lawyers are present for a hearing or
proceeding or when multiple lawyers do the same task.” Robinson v. City of Edmond, 160 F.3d
1275, 1285 n.10 (10th Cir. 1998) (internal quotation marks and citation omitted). In M.B. v.
Howard, this court recognized that multiple attorneys billing time to discuss or respond to an
7
The docket reveals that, prior to the motion at issue here, Transwest filed a Motion to Dismiss for
Lack of Jurisdiction (Doc. 13), a Notice of Consent to Removal (Doc. 15), two Motions to Appear Pro
Hac Vice (Doc. 22; Doc. 23), a Response (Doc. 30) to plaintiff’s extension of time motion, and a Reply
(Doc. 36) on its Motion to Dismiss. And Transwest attended a motion hearing (Doc. 31), a status
conference (Doc. 40), and a scheduling conference (Doc. 54). None of this docket activity presents any
unique challenge to litigation attorneys.
15
opposing party’s motion for extension of time indicated overstaffing. 555 F. Supp. 3d at 1076–
77. And the court reduced the fee award for duplicative work because “this is not the kind of
time that is generally billed to a client.” Id. at 1077.
Here, plaintiff—arguing overstaffing—notes that three attorneys entered time for work
involving plaintiff’s Motion for Extension of Time. Doc. 50 at 8. And plaintiff demonstrates
that two attorneys billed time to attend the hearing on plaintiff’s time extension motion and the
Rule 26(f) conference. Id. at 13. But Transwest responds, asserting it can explain the alleged
overstaffing in dispute. It argues that plaintiff forced Transwest to litigate in Kansas, breaching
the contractual provision in the Work Order requiring plaintiff to seek legal recourse in Adams
County, Colorado. Doc. 49-1 at 3 (Def.’s Ex. A). As a result, Transwest had to bring in more
attorneys because it “was required to hire competent local counsel to defend the case.” Doc. 49
at 7. And Transwest warned plaintiff about the forum selection clause and its intention to seek
attorneys’ fees and costs if plaintiff litigated in Kansas. Id. at 5.8 So, according to Transwest,
plaintiff’s breach of the contract explains any overstaffing issues with the fee award—and this
circumstance mitigates Transwest’s duplicative hours.
8
Transwest reminded plaintiff about the forum selection clause in the Repair Order and warned
plaintiff that it intended to seek attorneys’ fees for any litigation plaintiff pursued in Kansas in an email
dated Sept. 19, 2022. The email reads:
As a follow up to our telephone conversation, attached please find the front and back pages
of the Work Order executed by your client in connection with the repairs performed by
Transwest on the subject truck. As you can see, your client agreed that the exclusive
jurisdiction and venue for any action by Skyline against Transwest is Adams County,
Colorado. Likewise, the Work Order provides that the prevailing party in any such action
is entitled to recover it[s] reasonable costs, expenses and attorney fees. Frankly, we have
been very successful in enforcing these provisions on behalf of Transwest. In any event,
unless your client agrees to immediately dismiss Transwest from the Kansas action, it
intends to file a motion to dismiss and to recover its costs, expenses and attorney fees.
Please advise me of your client’s decision as soon as possible.
Doc. 49-2 at 2 (Def.’s Ex. B).
16
When evaluating the potential for these circumstances to mitigate Transwest’s alleged
overstaffing, the court finds helpful our Circuit’s discussion of consolidation in Western States.
There, three actions were consolidated rather than tried separately. Western States, 834 F.2d at
1549. As a result, the hearings consumed a total of 17 days. Id. The lawyer handling the
simplest of the three actions objected to the consolidation, arguing that his “case would be drawn
out and more expensive if consolidated with the [other] claims[.]” Id. The district court
consolidated the cases nonetheless. Id. When assessing attorneys’ fees for the objecting lawyer,
the district court “ignored the consolidation and reduced the award to approximate the costs of a
single trial on [that one simple] claim.” Id. Our Circuit found this reduction unnecessarily
punitive to the lawyer, depriving him of his contract bargain. Id. The Circuit concluded that the
lawyer’s “billing for the time actually consumed in litigating [his client’s] claim in the
consolidated trial was not unreasonable.” Id. And the Circuit noted this conclusion was
particularly appropriate given that “the consolidation was at the request of, and for the benefit of,
the breaching party.” Id.
So, too, in this case. Transwest objected to litigating this case in Kansas and
communicated as much to plaintiff. And the parties’ contract required plaintiff to bring its
claims in Colorado. Plaintiff disregarded that contract provision and filed in Kansas—for its
own benefit—necessitating Transwest’s hiring of local counsel and an increased risk of
inefficient work, with more attorneys and paralegals involved. The court concludes, as did the
Circuit in Western States, that punishing Transwest’s counsel for alleged overstaffing in response
to plaintiff’s decision to disregard the contract would deprive Transwest of its contract bargain.
And so the court concludes the circumstances here mitigate—to a certain extent—Transwest’s
overstaffing.
17
At the same time, the court also recognizes that some of the alleged overstaffing—such
as two attorneys attending the motion hearing and the 26(f) conference where one would’ve
sufficed—were not an overlap of local and out-of-state counsel. Instead, they were both
attorneys from the same Colorado firm. Doc. 49-4 at 11–12 (Def.’s Ex. C-1) (recording TJW
and KIJ’s attendance at motion hearing and Rule 26(f) conference). So, Transwest’s explanation
tempers, but doesn’t nullify, the court’s decision to reduce the fees requested for overstaffing.
In sum, the court finds both the issues in this case and Transwest’s litigation actions here
straightforward. And the court recognizes that Transwest’s local-counsel explanation doesn’t
account for all the overstaffing identified by plaintiff. Keeping in mind the court’s primary
concern with enforcing the bargained for contractual terms, the court thus determines that this
first KRPC 1.5(a) factor recommends only a modest general reduction in the total fees awarded.
After the court has completed the later-addressed billed hours and hourly rate adjustments, the
court will reduce the total fee award by 5% in light of its conclusions about this first factor.
Before moving to the second KRPC 1.5(a) factor, the court addresses one final issue
plaintiff presents under the first factor—non-qualifying work.
c.
Non-Qualifying Work
Plaintiff argues that Transwest included in its request billed hours that don’t qualify for
such an award: clerical work, block-billed work, and pro hac vice motion work. The court
addresses whether these constitute non-qualifying work for purpose of an attorneys’ fees award,
next. As before, the court limits its review of alleged non-qualifying work to plaintiff’s
“particularized objections” without “perus[ing] the itemized statements” more broadly. Enter.
Bank & Tr., 2013 WL 1876293, at *21.
18
i.
Clerical Work
Plaintiff contends that some of Transwest’s entries are purely clerical work, and thus
Transwest shouldn’t have billed them at either a paralegal rate or an attorney rate. See Doc. 50 at
12. “Purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who
performs them.” Fox v. Pittsburg State Univ., 258 F. Supp. 3d 1243, 1256 (D. Kan. 2017)
(internal quotation marks and citation omitted). And so, a party also shouldn’t bill “purely
clerical or secretarial tasks” at an attorney rate. Id. (internal quotation marks and citation
omitted). Thus, when determining attorneys’ fees, a “court must deduct tasks that amount to
filing, organizing files, making copies, printing, ordering file folders, organizing boxes, updating
files with correspondence and pleadings, and preparing files for storage.” Id. (internal quotation
marks and citation omitted). But “matters [that] require a legally trained mind” don’t qualify as
clerical. Id. Nor do hours spent reviewing or editing work as part of the legal writing process.
Id. at 1257.
Here, the court denies fees for certain clerical matters billed by Transwest at an attorney
or paralegal rate. Start with the paralegal hours billed. On September 30, 2022, paralegal DGV
billed .70 hours for gathering pleadings, forwarding the pleadings to an attorney, and drafting
and filing entry of appearance. Doc. 49-4 at 23 (Def.’s Ex. C-1). Collecting pleadings and
forwarding them to an attorney is clerical work and the court denies these fees. On the same day,
DGV billed 1.0 hour for pulling entire case pleadings filed to date and forwarding the pleadings.
Id. This, too, is clerical work. On October 6, 2022, DGV billed for reviewing and filing emails
for .20 hours—again, clerical. Id. at 24. And, finally, on October 7, 2022, DGV billed .50 hours
to “[f]inalize and file Consent and download and send same; Review and file emails.” Id. While
finalizing the Consent wasn’t clerical work, DGV commingles it—without distinction—with
19
clerical tasks. So, the court denies her the full .50 hour. In total, the court reduces DGV’s hours
billed by 2.4 hours, as reflected in the Fees Table in the court’s conclusion, § V.
Now for the attorney hours billed. Transwest attorney KIJ billed for setting up dockets9
for federal case (.20 hours on October 6, 2022) and affixing signatures and filing pro hac vice
applications (.90 hours on October 31, 2022). Id. at 7–8 (Def.’s Ex. C-1). These fall into the
clerical category of “filing” as identified in Fox. 258 F. Supp. 3d at 1256. The court thus
deducts 1.1 hours from KIJ’s total billing hours—again reflected in the Fees Table in § V. The
other attorney tasks plaintiff classifies as clerical, however, don’t fit the Fox definition. For
example, reviewing local court rules, preparing exhibits, and drafting correspondence about a
motion all conceivably “require a legally trained mind[.]” Id. And proofreading a reply in
support of a motion constitutes a legitimate part of the legal writing process. Id. Plaintiff’s
objections about purely clerical work thus don’t merit any further deductions.
ii.
Block Billing
Plaintiff also requests a general downward adjustment due to Transwest’s block billing
entries. Doc. 50 at 10–11. “‘Block billing’ is the practice of lumping multiple tasks into a single
entry of time such that the billing entry does not delineate how hours were allotted to specific
tasks.” Fox, 258 F. Supp. 3d at 1259 (citation omitted). In Citizens Utility Ratepayer Board v.
Kansas Corporation Commission, the Kansas Court of Appeals concluded that Kansas law
doesn’t prohibit block billing necessarily. 284 P.3d 348, 362 (Kan. Ct. App. 2012). Reaching
that conclusion, the Court of Appeals noted that the Tenth Circuit has no rule “mandating
reduction or denial of a request for attorney fees if the attorney’s records reflect block billing.”
The exhibit uses the term “docking” rather than “dockets” when describing the task KIJ
completed. Doc. 49-4 at 7 (Def.’s Ex. C-1). But the court interprets this as an inconsequential
typographical error because our court has no docks, but has many dockets.
9
20
Id. at 361 (citing Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000)). Instead,
the Tenth Circuit has determined, a discount of the requested hours is warranted if the records
submitted do not allow the court to determine how counsel allotted the time to specific tasks and
the reasonableness of that time. Id. (affirming district court’s refusal to reduce a fee request
based on counsel’s block billing because billing records sufficed to determine time spent and its
reasonableness.). This court also has granted fee requests that relied on block billed time entries
when the submissions permitted the court to determine the overall reasonableness of the fees.
See Dunn & Fenley, LLC v. Diederich, No. 10-4038, 2012 WL 359753, at *5 (D. Kan. Feb. 2,
2012) (refusing to deny or reduce attorneys’ fees requested based on block billing entries
because they involved logically related work and did not “camouflage” the work performed).
Plaintiff doesn’t argue that defendant’s block billing “camouflages” the work performed.
Nor does plaintiff argue the block billed time prevents the court from assessing the
reasonableness of the time devoted to particular tasks. Instead, plaintiff argues that the Tenth
Circuit generally discourages block billing, so the court should apply a general reduction to the
requested fees. See Doc. 50 at 10. Plaintiff points to four examples of defendant’s block billing.
Id. But the court, when reviewing the designated entries, encounters no difficulty determining
the reasonableness of the time spent. Take, for example, one of the allegedly offending entries.
Transwest’s counsel billed 1.4 hours on September 27, 2022, for the following tasks:
Review and revise Motion to Dismiss; teleconference with Ms. Jaramillo regarding same;
review and respond to email correspondence regarding same; review draft Motion of
Removal to US District Court; teleconference with Mr. Townsley regarding same;
prepare language for Notice of Removal re Jurisdiction; teleconference with Ms.
Jaramillo regarding same.
Doc. 50 at 10–11; Doc. 49-4 at 4 (Def.’s Ex. C-1). Although the attorney here lists multiple
tasks—and the court could classify the entry as block billing—it doesn’t struggle to identify the
21
tasks performed or the reasonableness of the time. All the tasks logically relate to different
aspects of the present case. While shorter, more targeted time entries are preferable, the court
declines to reduce the fee award on this basis, nor does Kansas law or Tenth Circuit precedent
require the court to do so.
iii.
Time Spent on the Pro Hac Vice Motions
Finally, plaintiff contends that pro hac vice motion work doesn’t qualify for an attorney
rate. Transwest seeks fees totaling 3.8 attorney hours for two pro hac vice motions to the court.10
Doc. 49-4 at 8 (Def.’s Ex. C-1). Our court and others have held that time devoted to preparing
pro hac vice motions is compensable, but only at a paralegal rate. See Animal Legal Def. Fund v.
Kelly, No. 18-2657, 2020 WL 4000905, at *5 (D. Kan. July 15, 2020); see also Ellison v. GAB
Robins, Inc., No. CIV 02-127, 2006 WL 8444544, at *15 (D.N.M. Jan. 26, 2006) (applying §
1988(b)’s framework for awarding attorneys’ fees in Title VII case and noting pro hac vice
motions are “a standard, straightforward pleading . . . . [T]he preliminary draft is likely part of
any lawyer’s ‘boilerplate’ forms, or is generally prepared by a paralegal”). Embracing this
approach, the court awards attorneys’ fees for preparing pro hac vice motions, but at a paralegal
rate.
Doing the numbers, the court notes that it previously denied .90 hours submitted by KIJ
for the pro hac vice motions because it determined affixing signatures and filing the motions
amounted to clerical work. So, the court doesn’t consider those entries again here. Still at issue
from the plaintiff’s Response are the following entries:
10
Plaintiff’s Response asserts that “Transwest seeks fees at varying attorney hourly rates for 7.1
hours devoted to two pro hac vice motions[.]” Doc. 50 at 11. But this court has only found 3.8 hours of
work from Transwest’s log. Doc. 49-4 at 8, 11, 25 (Def.’s Ex. C-1). And plaintiff only identifies eight
entries that add up to 3.5 hours. Id. Therefore, the court’s analysis proceeds on the premise that
Transwest’s attorneys devoted just 3.8 hours to the two motions.
22
Date
Attorney Task
10/27/2022
10/28/2022
10/31/2022
KIJ
KIJ
JRC
10/31/2022
TJW
11/01/2022
JRC
11/02/2022
JRC
Hours
Billed
.90
.70
.40
Pro Hac Vice Motion for Tanner and I
Drafting Motion to Enter Pro Hac Vice
Discussion with Mr. Walls re: Motion to Dismiss and
Motion for Pro Hac Vice (.10); discussion with Ms.
Jaramillo re: same (.10); review and respond to email
correspondence re: same (.20)
Review and revise Motion for PVH; Application; and
.20
Affidavit supporting PHV admission
Review and respond to email correspondence regarding
.20
Motion for Pro Hac Vice Admission; attend to matters
regarding same
Review and respond to email correspondence regarding Pro .20
Hac Vice Admission and Court Order and documents
regarding same.
Doc. 50 at 12–13; Doc. 49-4 at 8, 11 (Def.’s Ex. C-1). And the court found one additional entry:
Date
Attorney Task
10/31/2022
MTC
Messages with lead counsel to coordinate pro hac vice
admissions
Hours
Billed
.30
Doc. 49-4 at 25 (Def.’s Ex. C-1).
These entries constitute work billed at an attorney rate that is only compensable at a
paralegal rate. Animal Legal Def. Fund, 2020 WL 4000905, at *5. The court thus deducts from
each of the attorneys’ billed hours the following: 1.6 hours from KIJ, .80 hours from JRC, .20
hours from TJW, and .30 hours from MTC. In total, the court deducts 2.9 hours at varying
attorneys’ rates. The court records these deductions in the Fees Table, captured in the court’s
conclusion, § V. Then, the court adds 2.9 hours at the paralegal rate. Also, below, the court
explains that it awards all paralegal hours at the same rate. So, the court adds these 2.9 hours to
the first paralegal listed in the Fees Table, DS. Having accounted for the reduced rate for pro hac
vice motions, the court has completed its review of plaintiff’s objections under the first KRPC
23
1.5(a) factor. The court moves next to the second factor used to determine reasonableness of
fees: “(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer[.]” KRPC 1.5(a)(2).
2.
Precluded Other Employment by the Lawyer
In considering the second reasonableness factor, the court finds no basis to conclude the
legal work on this case precluded any involved attorneys from other employment. The court
determined above that this is a straightforward case. And the court recognizes the number of
attorneys available to put in hours on this case. In Wittig, the Kansas Court of Appeals
concluded that the engagement at issue there precluded its attorneys from working on other
matters because “two jury trials were conducted and a third trial was set.” 235 P.3d at 530. No
such trial demands exist here. Nor are there any other extenuating circumstances. The court thus
concludes that the demands of Transwest’s defense didn’t preclude any attorneys from other
employment. With that, the court holds the second factor doesn’t contribute to a finding of
reasonableness. On to the third KRPC 1.5(a) factor: “(3) the fee customarily charged in the
locality for similar legal services[.]”
3. Fee Customarily Charged in the Locality
Assessing this third factor, the court first must determine the relevant locality before it
can compare hourly rates. Transwest’s counsel argues that the court should compare their
attorneys’ fees to those in the Colorado and Denver metropolitan area for those attorneys situated
there, and the Kansas City metropolitan area for local counsel. Doc. 49 at 7–8. But the court
disagrees. The controlling legal standard provides that a court, when determining an appropriate
hourly rate,
should establish, from the information provided to it and from its own analysis of
the level of performance and skill of each lawyer whose work is to be compensated,
24
a billing rate for each lawyer based upon the norm for comparable private firm
lawyers in the area in which the court sits, calculated as of the time the court awards
fees.
Fox, 258 F. Supp. 3d at 1263–64 (citation and internal quotation marks omitted). That is, the
relevant market is the place where the litigation takes place. Erickson v. City of Topeka, Kan.,
239 F. Supp. 2d 1202, 1209 (D. Kan. 2002); see also Wittig, 235 P.3d at 530 (using the greater
Kansas City metropolitan area, not the firm’s location in Washington, D.C., as the relevant
locality). Therefore, the relevant locality here is Kansas City, Kansas.
Having determined the appropriate locality, the court next must determine what fees are
customarily charged by attorneys in that locality. This court’s cases assessing the Kansas City
market have found hourly rates between $175 to $625 reasonable based on the attorney’s
litigation experience. See, e.g., Lawson v. Spirit AeroSystems, Inc., No. 18-1100, 2020 WL
6343292, at *16 (D. Kan. Oct. 29, 2020) (finding reasonable rates of $625 per hour for partner
with 27 years’ experience, $425 per hour for counsel with 13 years’ experience, and $350 per
hour for associate with seven years’ experience because they were consistent with top-tier
employment litigation rates in Kansas City), aff’d, No. 18-1100, 2020 WL 6939752 (D. Kan.
Nov. 24, 2020)11; Animal Legal Def. Fund, 2020 WL 4000905, at *9 (finding hourly rates
between $500, for most experienced attorney, to $250 reasonable); Ross v. Jenkins, 325 F. Supp.
3d 1141, 1181 (D. Kan. 2018) (concluding $225 a reasonable rate for attorneys with experience
of four years or less); Fox, 258 F. Supp. 3d at 1271 (finding hourly rates of $400 and $375
reasonable for attorneys with 17 and 15 years of experience in a Title VII and Title IX case in
11
Opposing counsel in Lawson didn’t challenge the reasonableness of these rates and didn’t provide
evidence contradicting them. Lawson v. Spirit AeroSystems, Inc., No. 18-1100, 2020 WL 6343292, at
*17 (D. Kan. Oct. 29, 2020) (finding proposed rates reasonable “given the lack of evidence to contradict
Spirit’s record about the reasonableness of its requested rates”), aff’d, No. 18-1100-EFM, 2020 WL
6939752 (D. Kan. Nov. 24, 2020).
25
Kansas City Metropolitan area); Barbosa v. Nat’l Beef Packing Co., LLC, No. 12-2311, 2015
WL 4920292, at *10 (D. Kan. Aug. 18, 2015) (finding hourly rates ranging from $180 to $425
reasonable, depending on each attorneys’ level of experience, in an FLSA case for attorneys at a
law firm based in Overland Park, Kansas); Seamands v. Sears Holding Corp., No. 09-2054, 2011
WL 884391, at *14–16 (D. Kan. Mar. 11, 2011) (finding the following hourly rates reasonable in
a class action lawsuit involving unpaid sales incentive compensation: $400 per hour for a lawyer
with more than 30 years’ experience, $290 per hour for lawyers with more than 20 years’
experience, $270 for a partner with 11 years’ experience, and $175 for associates with “lesser
experience” for attorneys based in Kansas City, Missouri).
Here, plaintiff generally states that Transwest’s attorney’s fees are too high because the
relevant market area is Kansas. See Doc. 50 at 9. Plaintiff then specifies that attorney KIJ’s rate
of $295 is unreasonable and should be reduced to $180 for her lack of experience because she
began practicing law in 2021. Id. Plaintiff doesn’t specifically target any other attorneys’ rates
as too high. The court looks at the most recent case law—which best embodies the current
market—and considers the rates those cases utilized for relatively inexperienced associates. And
the court finds that $225 an hour is a reasonable rate for KIJ—an associate with just over one
year of experience at the time KIJ accrued the fees. See Lawson, 2020 WL 6343292, at *16
(finding $350 a reasonable rate for an associate with seven years’ experience); Ross, 325 F.
Supp. 3d at 1181 (concluding attorneys with four years or less experience reasonably may charge
$225 an hour). This reduces her rate from $295 to $225 an hour. The court also finds that the
attorneys’ rates—ranging from $310–$405 for partners—are commensurate with those our court
previously has held reasonable. Doc. 49-3 at 3 (Walls Decl. ¶ 5); see also Lawson, 2020 WL
6343292, at *16; Animal Legal Def. Fund, 2020 WL 4000905, at *9. Also, the partner with the
26
most experience, James Cage (JRC), already reduced his rate because of his long-standing
professional relationship with Transwest. Doc. 49-3 at 2 (Walls Decl. ¶ 4). So, the court leaves
all other attorneys’ rates undisturbed.
Next, the court must determine a reasonable fee for paralegals in the Kansas City
Metropolitan Area. Recent rulings by our court and the Western District of Missouri will not
support a rate of $200 an hour for paralegals. Animal Legal Def. Fund, 2020 WL 4000905, at *9
(finding hourly rate of $125 per hour reasonable for paralegals and law students); see also M.B.
v. Tidball, No. 2:17-cv-4102, 2020 WL 1666159, at *13 (W.D. Mo. Apr. 3, 2020) (holding $150
per hour reasonable for paralegals).
Here plaintiff targets Transwest’s paralegal rates of $260 and $200 as inflated. The court
finds a rate of $150 per hour is reasonable for paralegals. See M.B. v. Tidball, 2020 WL
1666159, at *13. This reduces DS’s rate from $260 to $150, DV’s from $200 to $150, and
RLC’s from $260 to $150. The court reflects the attorney and paralegal hourly rate changes in
its Fees Table in the concluding section, § V.
Next up is KRPC 1.5(a)’s fourth factor: “(4) the amount involved and the results
obtained[.]” The court addresses factor four below.
4.
Amount Involved; Results Obtained
Given the procedural posture of this case, this factor doesn’t influence the court’s
analysis. Plaintiff’s Petition (Doc. 1-1) pleaded a payment for repair work to another defendant,
Truck Center, in the amount of $11,750.55. Doc. 1-1 at 4 (Pet. ¶ 13). And plaintiff pleaded that
the costs of this action were “in excess of $75,000.00.” Id. at 10. But the court dismissed
Transwest for lack of personal jurisdiction (Doc. 43), so the amount involved and results that the
parties might have secured remain as unknowns. Moving on, factor five is similarly unhelpful.
27
5. Time Limitations
Factor five reads: “(5) the time limitations imposed by the client or by the
circumstances.” KRPC 1.5(a)(5). The briefing provides no insight about time limitations
imposed by these clients. And the docket reveals only those time limitations that inhere in any
case based upon our local rules, and the accompanying motions to extend said limits. The court
thus disregards this fifth factor in its reasonableness determination and moves on to the sixth
factor: “(6) the nature and length of the professional relationship with the client.”
6.
Professional Relationship with Client
The court determines this sixth factor tips the scale in favor of the requested fees’
reasonableness. James R. Cage (JRC) has been practicing law since 1980. Doc. 49-3 at 2 (Walls
Decl. ¶ 4). He is a partner at the law firm of Moye White and he identifies an extensive list of
concentration areas, credentials, and affiliations. Doc. 49-5 at 2–3 (Def.’s Ex. C-2). And he has
represented Transwest and its affiliates for more than 21 years. Doc. 49-3 at 2 (Walls Decl. ¶ 4).
Such a resume easily could secure a high hourly rate. However, JRC “performed work on the
file at the initiation of the lawsuit at a reduced hourly rate for his level of experience due to his
long standing relationship with the client.” Id. Such an accommodation—though made for the
benefit of his client and to encourage an ongoing professional relationship—suggests a level of
reasonableness in the fees Moye White billed. Given the time and effort expended over the years
to establish and maintain a relationship with Transwest, Moye White and JRC likely wouldn’t
jeopardize that relationship with inflated or unfounded fees here. So, the court finds this sixth
factor commends a finding of reasonableness. The seventh factor, reviewed below, also
scrutinizes the attorneys on this case. KRPC 1.5(a) explains that factor like this: “(7) the
28
experience, reputation, and ability of the lawyer or lawyers performing the services[.]” The
court addresses it next.
7.
Experience, Reputation, Ability of the Lawyer
To speak to this seventh reasonableness factor, Transwest’s counsel submitted website
biographies and a declaration reporting the experience of the primary Moye White attorneys
consulted on this case. The lead attorney, Tanner J. Walls (TJW), has practiced in Colorado
since 2009, is licensed to practice in two other states, and engages exclusively in civil litigation.
Doc. 49-3 at 2 (Walls Decl. ¶¶ 2–3). He serves as vice-chair of the litigation section at Moye
White and his website biography details multiple representative matters where he occupied the
lead trial attorney or co-lead trial attorney position in breach of contract, negligence, and
malpractice cases. Doc. 49-6 at 3–4 (Def.’s Ex. C-3). His colleague, JRC, has a resume that
stretches back to 1980, as discussed in the previous section. In addition to the length of his
practice, JRC’s “AV” Preeminent rating—Martindale-Hubbell’s highest rating for attorneys—
demonstrates JRC’s “legal ability and ethical standards.” Doc. 49-5 at 2 (Def.’s Ex. C-2). Both
TJW and JRC are partners at Moye White law firm in Denver, Colorado. Doc. 49-3 at 3 (Walls
Decl. ¶ 5). One other Moye White partner, Joseph W. Mark (JWM), contributed a modest 1.2
hours to this case. Doc. 49-4 at 3, 5 (Def.’s Ex. C-1). The court has no information about
JWM’s qualifications apart from his status as partner. The only Moye White lawyer on this case
who doesn’t have partner status is associate Karla I. Jaramillo (KIJ). KIJ—who alone submitted
half of the billed hours (80.3 hours of the total 159 hours)—has practiced law since 2021. Doc.
49-3 at 2 (Walls Decl. ¶ 4). She focuses her practice on civil and commercial litigation and has
an LL.M. in European Business Law. Doc. 49-7 at 2 (Def.’s Ex. C-4).
29
Local counsel, Michael Crabb (MTC) of Kuckelman Torline Kirkland, Inc., submitted
just 10.4 hours out of the total 159 hours. Doc. 49-3 at 3 (Walls Decl. ¶ 5); Doc. 49-4 at 22–26
(Def.’s Ex. C-1). MTC didn’t provide the court with information about his experience or
credentials. The hours billed chart indicates, however, that MTC is a partner. Doc. 49-3 at 3
(Walls Decl. ¶ 5).
The court concludes that the experience, reputation, and ability of the Moye White
attorneys weighs in favor of finding the requested fees reasonable. While the associate
performing most of the legwork for this case has but modest experience, the lead attorney has
practiced law for 15 years and spent the entirety of his career in civil litigation matters like this
one. Coupled with the consultations provided by an even more experienced attorney (JRC), the
court finds this experience suffices to suggest reasonableness. And plaintiff has provided no
indication that the attorneys’ reputations are compromised in any way. So, the court puts another
tick in the reasonable column and moves on to the final KRPC 1.5(a) factor: “(8) whether the
fee is fixed or contingent.”
8.
Fixed or Contingent Fee
The fee in this case is fixed, not contingent. In some circumstances, a contingent fee
arrangement may produce an excessive and unreasonable fee award if it disproportionately
represents the amount of time and effort required by counsel in the case. See, e.g., Bergeson v.
Dilworth, 875 F. Supp. 733, 739–40 (D. Kan. 1995) (reducing award under contingent fee
contract to compensate counsel adequately for the time and efforts involved in the case). That
concern doesn’t present itself here because defendant’s counsel’s fee is fixed. So, the court adds
a final tick to the reasonable column.
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In sum, the court finds that—after it completes adjustments required under the first and
third factors—the KRPC 1.5(a) factors favor an overall finding of reasonableness. The first
factor advises the court to consider “the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal services properly.” KRPC
1.5(a)(1). Under the first factor, the court determined that the case’s issues were not novel or
difficult and that the record contained some indication of overstaffing. So, the court concluded a
general reduction of 5% is warranted. The court also completed specific adjustments for clerical
work and pro hac vice motions under factor one. Then, the court adjusted hourly rates under the
third factor to conform to the Kansas City locality customs. With these first and third factor
adjustments completed, the KRPC 1.5(a) factors weigh in favor of reasonableness. Factors four
and five don’t merit the court’s consideration under the circumstances of this case. And factors
six, seven, and eight all favor a finding of reasonableness. While factor two suggests the
attorneys weren’t precluded from other employment, this factor alone doesn’t suffice to
overcome a finding of reasonableness. The court thus concludes that, after the adjustments
outlined above, Transwest’s request represents a reasonable fee award for the tasks required in
this lawsuit. And the court awards Transwest’s counsel attorneys’ fees in sum of $43,280.10, a
total the court summarizes in the court’s Fees Table, § V., below. But, first, it must address
Transwest’s request for its costs.
IV.
Taxable Costs under Fed. R. Civ. P. 54(d)(1)
Transwest asks the court for “the right to file its Bill of Costs as the prevailing party.”
Doc. 49 at 9. Fed. R. Civ. P. 54(d)(1) provides that “[u]nless a federal statute, these rules, or a
court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” “Whether to grant costs to a prevailing party is within the district ‘court's
31
sound discretion,’ but ‘Rule 54 creates a presumption that the district court will’ do so.” Allen v.
Lang, 738 F. App’x 934, 944 (10th Cir. 2018) (quoting Rodriguez v. Whiting Farms, Inc., 360
F.3d 1180, 1190 (10th Cir. 2004)). Here, the court has determined already, in § II.C., that
Transwest is not a prevailing party because dismissal for lack of personal jurisdiction is not a
judgment on the merits. Murray, 2011 WL 2601528, at *4. Indeed, the Supreme Court has
explained “that the term ‘prevailing party’ is a ‘legal term of art’ defined as ‘a party in whose
favor a judgment is rendered, regardless of the amount of damages awarded.’” Allen, 738
F.App’x at 944 (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum.
Res., 532 U.S. 598, 603 (2001)) (further citation omitted). We don’t have one of those here. So,
the court denies Transwest’s request for costs because Transwest is not a prevailing party under
Rule 54(d)(1).
V.
Conclusion
The court awards Transwest attorneys’ fees under the parties’ contractual fee-shifting
provision. The court assesses Transwest’s fee request under Kansas law’s reasonableness
factors, as outlined in KRPC 1.5(a). After specific modifications to hours billed and hourly rates
under factors (1) and (3), and a general reduction under factor (1), the court determines the
remaining award is reasonable. And so, the court awards Transwest $43,280.10 in attorneys’
fees under the contract. Finally, the court denies Transwest costs because Transwest isn’t a
prevailing party.
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Fees Table
Timekeeper
James R. Cage
(JRC)
Tanner J. Walls
(TJW)
Michael Crabb
(MTC)
Joseph W. Mark
(JWM)
Karla I. Jaramillo
(KIJ)
DeAnne
Stoneking (DS)
Deborah
Vandervoort
(DGV)
Rachel L. Cotner
(RLC)
TOTAL before
general reduction:
TOTAL after 5%
general reduction:
Title / Year
Began
Practicing Law
Partner / 1980
Partner / 2009
Requested Adjusted
Adjusted
Hours
Hours
Rate
Billed
Billed
21.6
(-.8) =
$310
20.8
39.6
(-.2) =
$405
39.4
10.4
(-.3) =
$400
10.1
1.2
N/A
$365
Partner / not
provided
Partner / not
provided
Associate / 2021
80.3
Paralegal
3.7
Paralegal
2.4
(-1.1)
(-1.6) =
77.6
(+ 2.9) =
6.6
(-2.4) = 0
Paralegal
1.5
N/A
Total
Charge
$ 6,448.00
$15,957.00
$ 4,040.00
$ 438.00
$225
(reduced)
$17,460.00
$150
(reduced)
$150
(reduced)
$
990.00
$
0
$
225.00
$150
(reduced)
$45,558.00
$43,280.10
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Transwest’s
Motion for Attorneys’ Fees and Costs (Doc. 49) is granted in part and denied in part. The court
awards defendant Transwest’s attorneys’ fees in the amount of $43,280.10. And the court denies
Transwest’s request for costs under Rule 54(d)(1).
IT IS SO ORDERED.
Dated this 26th day of March, 2024, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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