Jayhawk 910VP, LLC v. WindAirWest, LLC

Filing 140

ORDER re 121 MOTION for Attorney Fees (and 135 supplement thereto) filed by Jayhawk 910VP, LLC. Signed by Magistrate Judge Kenneth G. Gale on 1/26/22. (df)

Case 6:18-cv-01153-KGG Document 140 Filed 01/26/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAYHAWK 910VP, LLC,

)
)
Plaintiff,
)
)
v.
)
)
WindAirWest, LLC,
)
)
Defendant. )
_______________________________)

No. 18-1153-KGG

MEMORANDUM & ORDER
NOW BEFORE THE COURT is the supplement (Doc. 135) to the Motion
for Attorney’s Fees (Doc. 121) filed by Plaintiff Jayhawk 910VP, LLC
(“Jayhawk”). For the reasons set forth herein, the Court GRANTS in part
Jayhawk’s request for fees and expenses.
BACKGROUND
On May 18, 2021, this matter came on for trial to the Court. On July 14,
2021, the Court issued its Findings of Fact and Conclusions of Law pursuant to
Rule 52, Federal Rules of Civil Procedure. (Doc. 117.) Therein, the Court held
that Plaintiff is entitled to judgment in the amount of $125,000 against Defendant
for non-payment of the additional charter fee while Defendant is entitled to
judgment against Plaintiff for failing to pay charter expenses in the amount of
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$39.652.08. (Id.) This resulted in a net judgment to Plaintiff against Defendant in
the amount of $85,347.92. (Id.) Additional background is contained in the Court’s
Findings of Fact and Conclusions of Law (Doc. 117, at 1-14) and Memorandum &
Order on cross motions for attorney’s fees (Doc. 128, at 2-3.) Those factual
findings are incorporated herein by reference.
Following the trial, the parties were ordered to file simultaneous motions for
attorney’s fees, which were filed on September 3, 3021. (Docs. 120, 121.) At the
request of the parties, the Court held the motions in abeyance pending their
continued efforts to reach a mutual resolution of the attorney’s fees issues, which
were unsuccessful. The Court ultimately found that Plaintiff was the “prevailing
party” in the litigation, thus entitled to attorney’s fees. (See Doc. 128, at 4-8
(analysis of prevailing party incorporated by reference).) The Court granted
Plaintiff’s motion for attorney’s fees (Doc. 121) while denying Defendant’s crossmotion (Doc. 120). (Doc. 128, at 8.)
Thereafter, Plaintiff was ordered to submit a supplement (Doc. 135) to its
Motion for Attorney’s Fees addressing the dollar amount of fees sought.
Defendant responded (Doc. 139) and no reply was allowed. The parties were
informed that in reaching a conclusion as to the amount of fees to award, the Court
would exercise its equitable powers based on the overall outcome of this litigation.
(See Doc. 128, at 8 (citing Fusion, Inc. v. Nebraska Aluminum Castings, Inc.,
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962 F.Supp. 1392, 1397 (D. Kan. 1997).) The amount proposed by Jayhawk is
$228,476.14, which encompasses $219,564.50 in legal fees and $8,911.64 in
expenses.1 (Doc. 135, at 9.) Within this context, the Court will now address the
Jayhawk’s request for attorney’s fees and expenses.
ANALYSIS
In determining the amount of attorney’s fees to award, the Court calculates a
“lodestar” fee amount by multiplying a reasonable hourly rate by the reasonable
number of hours. Sheldon v. Vermonty, 237 F.Supp 2d 1270, 1274 (D.Kan. 2003)
(citing Naff v. Davol, Inc., 28. Kan. App. 2d 726, 729, 20 P.3d 738 (2001)). As an
initial matter, the Court notes that the parties are in agreement that the hourly rate
requested by Jayhawk is reasonable. (Doc. 135, at 8; Doc. 139, at 4.) The parties
disagree, however, as to the other element of the loadstar equation – the number of
billable hours to be reimbursed.
The lodestar amount is presumed to be a reasonable fee once established.
Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). A court may
increase or decrease the lodestar amount “to account for the particularities of the
suit and its outcome.” Zinna v. Congrove, 680 F.3d 1236, 1242 (10th Cir. 2012);
see also Robinson v. ECollect Solutions, No. 21-2021-SAC-KGG, 2022 WL
218635, at *1 (D. Kan. Jan. 25, 2022). “The party requesting attorney fees bears

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The expenses consist of deposition fees, transcripts, and mediator fees. (Id.)
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the burden of proving the amount of hours spent on the case and the appropriate
hourly rates.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d
1219, 1233 (10th Cir. 2000) (citing Case v. Unified Sch. Dist. No. 233, 157 F.3d
1243, 1249 (10th Cir. 1998)). In adjusting the lodestar, Court’s typically consider
eight factors identified in Rule 1.5(a) of the Kansas Rules of Professional
Conduct.2 Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000); BMO Harris
Bank, N.A. v. Dunn, 31. “Often, however, no adjustment is needed as the eight
factors listed in Rule 1.5 are the facts on which the … the lodestar calculation is
made.” Sheldon v. Vermonty, 237 F.Supp. 1270, 1274 (D.Kan. 2002).

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The eight factors enumerated by the Kansas Rules of Professional Conduct 1.5(a) 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;
(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.

All factors are controlling and given equal weight in the Court’s analysis. Johnson v.
Westhoff Sand Co., 281 Kan. 930, 951, 135 P.3d 1127, 1142 (2006).
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Jayhawk argues that it previously established that “all of WAW’s
counterclaims were defenses to Jayhawk’s claim for breach of the 2016 Dry
Lease,” thus “Jayhawk had to successfully defend the claims in order to prevail
and enforce the terms of the 2016 Dry Lease.” (Doc. 135, at 5.) Jayhawk opines
that “all of the fees and expenses reasonably incurred in defending these claims
should be reimbursed and the terms of the 2016 Dry Lease.” (Id.)
WAW counters that this amount is unreasonable because Jayhawk filed its
lawsuit “at a time when it too was in breach of the parties’ contractual agreements.
Specifically, the Court found that Jayhawk breached its agreement under the 2017
Side Letter agreements when it failed to pay expenses during charter operations.”
(Doc. 139, at 3 (citing Doc. 117, at 19).)
Jayhawk asserts that it has “always conceded that its recovery of this amount
was subject to reduction of any unpaid operating expenses incurred in the charter
of Jayhawk’s Citation X aircraft under the 2017 Dry Lease.” (Doc. 135, at 1.)
WAW responds that “the accuracy of Jayhawk’s introductory claim is
questionable.” (Doc. 139, at 4.) According to WAW,
[w]hen Jayhawk filed suit in May 2018, Jayhawk owed
WAW well over $125,000 in outstanding charter
expenses. It is hard to believe that Jayhawk agreed it
owed the outstanding charter expenses when the amount
owed exceeded Jayhawk’s potential recovery under the
2016 Dry Lease. Instead, Jayhawk paid down the
outstanding charter expenses over the course of this
lawsuit because it was strategic to do so. Had Jayhawk
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not – given the outcome of this case – the tables would
be turned and WAW would be the prevailing party as
WAW’s recovery under the 2017 Dry Lease would
exceed the $125,000.
(Id.)
WAW opines that awarding attorney’s fees and costs to Jayhawk “creates a
windfall” for Jayhawk that is “inequitable given the parties’ history and the course
of events since Jayhawk first filed suit in May 2018.” (Id.) WAW asks the Court
to “exercise its discretion and find that only a nominal award of attorney’s fees and
costs is reasonable.” (Id.)
In its briefing, Jayhawk anticipated WAW’s position that Jayhawk should
not be entitled to fees incurred litigating WAW’s tort claims. Jayhawk argues that
this argument fails because it established that “all of WAW’s counterclaims,
whether tort or contract, served as its defenses to Jayhawk’s claim for breach of the
2016 Dry Lease.” (Doc. 135, at 7.) In other words, according to Jayhawk, for it to
“prevail on its single claim, it had to successfully defend all of WAW’s
counterclaims.” (Id.) Jayhawk also argues that “all of the parties’ claims and
defenses arise out of the same transaction and are so interrelated that their
prosecution or defenses entailed proof or denial of essentially the same facts.”
(Id.) Thus, Jayhawk argues it is entitled to fees incurred in successfully defending
WAW’s counterclaims. (Id.)

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Exercising its discretion to award attorney’s in an equitable manner, Fusion,
Inc. 962 F.Supp. at 1397, the Court finds that it would be unreasonable for
Jayhawk to be awarded the entirety of its legal fees and costs incurred in this
litigation. Although Jayhawk was the prevailing party, the fact remains that WAW
was also awarded almost $40,000 in damages on one of its cross-claims, which
served as an offset to Plaintiff’s damages award. Further, it is undisputed that
Jayhawk paid down the outstanding charter expenses it owed to WAW over the
course of this litigation.
Given the totality of these circumstances, the Court finds a 25% reduction of
Plaintiff’s legal fees and expenses to be equitable. The Court thus awards Plaintiff
legal fees and expenses in the amount of $171,357.11.

IT IS SO ORDERED.
Dated this 26th day of January, 2022.
/S KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge

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