Ross v. Stavens

Filing 32

MEMORANDUM AND ORDER: Re 29 Motion for Attorney Fees is granted insofar as the plaintiff is awarded fees totaling $20,561.50 (69.7 hours times $295 per hour) through January 31, 2014. Signed by U.S. District Senior Judge Sam A. Crow on 4/1/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENNIS ROSS,
Plaintiff
vs.

Case No. 13-1061-SAC

CHRISTODULOS STAVENS,
Defendant.
MEMORANDUM AND ORDER
On December 11, 2013, the court granted the plaintiff Dennis
Ross’ (“Ross”) motion for summary judgment on his sole claim for breach of
an indemnity agreement and against the four affirmative defenses raised by
the defendant Christodulos Stavens (“Stavens”). (Dk. 27). Judgment was
entered for Ross awarding damages and interest to date totaling
$436,410.31 with post-judgment interest, plus fees and costs to be
determined later. (Dk. 28). The summary judgment order gave the parties
30 days to consult over fees and costs and, in the event of no agreement,
required the plaintiff’s counsel to file affidavits and proof for determining
reasonable fees and costs. (Dk. 27, p. 5).
Stating that the parties conferred but did not agree on fees, the
plaintiff moves for an award of attorneys’ fees. One of the four counsel who
have billed time in this case has submitted an affidavit identifying the
attorneys, justifying the hourly rate, and offering that “[t]his case is much

more complex than it would appear by the pleadings because Dr. Stavens
has claimed insolvency since before the litigation phase of the case began.”
(Dk. 29-2, ¶ 9). Eight pages of time entries for the four counsel are part of
the record. (Dk. 29-3).
The defendant Stavens responds with nine numbered
paragraphs, eight of which have do not address the specifics of the plaintiff’s
fee request. After discussing some terms of a bankruptcy court’s
confirmation order, In re Kentuckiana Medical Center, LLL, No. 10-93039BHL-11 (S.D. Ind. Sept. 12, 2013), (Dk. 30-1), Stavens concludes that Ross
is a creditor of the bankruptcy debtor and highlights in that confirmation
order a term that enjoins all creditors from “enforcing, attaching, collecting
or recovering” against the debtor or its guarantors and co-obligors, which
Stavens says includes him. He characterizes Ross’ action in the District of
Kansas to be “an impermissible collateral attack on the injunction provided
in the confirmation order.” (Dk. 30, ¶ 8). As for attorneys’ fees, the
defendant disputes the reasonableness of four “partner level attorneys”
billing 74 hours in a “rather garden variety breach of contract case.” (Dk. 30,
¶ 9).
In reply, the plaintiff discounts the defendant’s fee objection as
lacking specificity and, therefore, insufficient under Bell v. United Princton
Prop. Inc., 884 F. 2d 713, 720 (3rd Cir. 1989); see Coleman v. Astrue, 2008
WL 234404 (D. Kan. Jan. 28, 2008) (citing Bell). Though the court in
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Coleman did not adopt Bell standards, another federal district court in
Kansas has held that, “[t]he objecting party has the burden to challenge the
claim for attorney fees with sufficient specificity to provide notice to the fee
applicant the portion of the fee petition which must be defended. Bell v.
United Princeton Prop., Inc., 884 F.2d 713, 715 (3d Cir.1989).” Sommerville
v. Astrue, 555 F. Supp. 2d 1251, 1253 (D. Kan. 2008). Objections to fee
requests certainly should be sufficiently specific for a fee proponent to
prepare an answer and defense. The defendant has argued the
unreasonableness of fees associated with the involvement of four “partner
level attorneys” in a “garden variety breach of contract case” in which
“[t]here was only minimal discovery in the case, no depositions, and only a
handful of telephonic court appearances.” (Dk. 30, ¶ 9). The court accepts
the defendant’s objections as sufficient to notify the plaintiff. In reply, the
plaintiff offers only that the defendant’s response is “disingenuous” because
the contract makes the costs of collection also awardable as fees. The
plaintiff, however, provides no justification for the number of experienced
attorneys involved in the litigation phase of this case.
In reviewing the time entries after this case was filed, the court
finds some instances of billing indicative of duplicative review or status
conferences between counsel attributable to having four counsel in the case.
The plaintiff’s time entries are not sufficiently detailed or supported by other
documents as to cure these questions over billing judgment. Nor does the
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plaintiff’s reply offer any meaningful response to what precautions were
taken to prevent billing for duplicative work performed by four counsel in
this relatively straight-forward lawsuit. The court will reduce the requested
total hours by 4.3 hours resulting in 69.7 hours billed at $295 per hour for
an award of fees through January 31, 2014, totaling $20,561.50.
As for the other matter raised in the defendant’s response
regarding a bankruptcy court’s confirmation and injunction interfering with
the enforcement of the judgment in this case, the defendant has not
properly presented this issue to the court in the form of any motion seeking
relief. Short of a motion filed and supported by good faith arguments based
in law and fact, the court will not offer any advisory opinion and imposes no
limitations on the plaintiff’s lawful enforcement of this judgment.
IT IS THEREFORE ORDERED that the plaintiff’s motion for
attorneys’ fees (Dk. 29) is granted insofar as the plaintiff is awarded fees
totaling $20,561.50 (69.7 hours times $295 per hour) through January 31,
2014.
Dated this 1st day of April, 2014, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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