The Nature Conservancy, Inc. v. Sims et al
Filing
105
MEMORANDUM OPINION AND ORDER: (1) 66 Motion for Supplemental Attorney Fees and Litigation Expenses is GRANTED. Nature Conservatory is awarded $27.047.50 in attys' fees and $1,256.54 in expenses. (1) The 78 Sur-Reply shall be deemed FILED. Signed by Judge Joseph M. Hood on 3/28/2013. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
)
THE NATURE CONSERVANCY, INC. )
)
)
Plaintiff,
) Action No. 5:07-CV-112-JMH
)
v.
)
)
) MEMORANDUM OPINION AND ORDER
LARRY A. SIMS and
)
MARSHA K. SIMS.
)
)
Defendants.
)
)
)
**
**
**
**
**
This matter is before the Court on the Supplemental
Motion for Attorney Fees [DE 66] filed by Plaintiff The
Nature Conservancy (“TNC”).
Defendants Larry A. Sims and
Marsha K. Sims (the “Sims”) timely objected [DE 76] and TNC
filed a reply [DE 77].
78].
The Sims then filed a sur-reply1 [DE
This matter is now ripe for review.
On May 21, 2012, the United States Court of Appeals
for
the
Sixth
Circuit
affirmed
this
summary judgment to the Plaintiff.
Court’s
[DE 63].
award
of
Based on
Section 5.1 of the Conservation Easement, which provides
1
Leave of this Court is required before filing a sur-reply.
Thus, the Court construes the filing of Defendants’ surreply as a motion for leave to file a sur-reply, which is
granted.
1
that “[a]ll reasonable costs incurred by the Conservancy in
enforcing
the
terms
of
this
Easement
against
Grantor,
including, without limitation, costs and expenses of suit
and
reasonable
restoration
terms
of
[Easement
attorney’s
attorneys’
necessitated
this
at
by
Easement
6-7].
fees,
and
Grantor’s
shall
This
be
any
violation
borne
Court
costs
by
of
of
the
Grantor.”
previously
awarded
fees for the time expended prior to the Sixth
Circuit appeal pursuant to this provision. [DE 57].
TNC
now seeks the award of attorneys’ fees totaling $32,711.50
and costs of $1,256.54 incurred during the course of the
appeal.
The Sims object to the award of attorneys’ fees as a
philosophical matter, relying on the dissenting opinion by
the Honorable Gilbert S. Merritt, and also made specific
objections
to
any
time
spent
toward
negotiating
a
settlement of the claims and to time spent on scheduling
annual inspections of the property.
The
Sims’
objection
that
further
attorneys’
fees
should not be awarded as a matter of principle fails.
award
of
attorneys’
fees
in
this
case
is
governed
The
by
contract, pursuant to Section 5.1 of the easement, and that
award was upheld by the Sixth Circuit Court of Appeals.
The
supplemental
attorneys’
fees
2
now
before
the
Court,
which cover a range of activities following the judgment
entered by this Court while this matter was on appeal to
the
Sixth
Circuit
Court
of
Appeals,
continue
to
be
“reasonable costs incurred by [TNC] in enforcing the terms”
of the easement between the parties.
With
respect
to
the
Sims’
argument
that
attorneys’
fees for time spent on negotiating a settlement are not
reasonable, this Court finds that time spent negotiating
settlement of a dispute and drafting settlement documents
is a necessary expense of litigation.
Couch v. Cont’l Cas.
Co., 2008 WL 131198, *5 (E.D.Ky. Jan. 11, 2008) (awarding
attorneys’ fees for time spent in settlement negotiations,
in an ERISA action, because “settlement discussions are an
ordinary
part
of
Esernio-Jenssen,
(E.D.N.Y.
in
the
__
litigation
F.Supp.2d
process”);
__,
2012
Estiverne
v.
6106330,
*3
WL
May 23, 2012)(awarding attorneys’ fees incurred
unsuccessful
settlement
negotiations
pursuant
to
42
U.S.C. § 1988); Citizens for Cmty. Values, Inc., v. Upper
Arlington Public Library Bd. of Trs., 2010 WL 1253892 at *5
(S.D. Ohio March 24, 2010);
Mack Trucks, Inc. v. Int’l
Union, et al., 2011 WL 4402136 at *6 (E.D.Pa September 22,
2011).
Moreover,
disallowing
settlement
negotiations
settlement
efforts.
would
chill
Estiverne,
3
attorney’s
2012
attorneys’
WL
fees
for
pre-trial
6106330
at
*3;
Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Hartel, 782
F.Supp. 22, 25 (S.D.N.Y. 1992).
Thus, this Court finds
that the time spent for on settlement negotiations is not
per se exempt from an attorneys’ fee award.
Nonetheless,
the
Court
has
examined
the
attorneys’
time record in this case and finds that the number of hours
spent
drafting
and
revising
the
proposed
agreement by G. Thomas Barker appears excessive.
acknowledges
that
this
was
not
a
typical
settlement
The Court
settlement
document because it involved drafting a second easement for
the
property.
Mr.
Barker
spent
forty-seven
hours
communicating with opposing counsel, his client or within
the
office
about
settlement
strategy.
Additionally,
approximately twenty hours were represented by time entries
describing communications with the client and revising the
settlement agreement and easement.
These time entries do
not permit an allocation of which hours were attributable
to
drafting
versus
communications.
Finally,
Mr.
Barker
spent approximately twenty-six hours merely drafting and
revising the agreement and easement, apparently without the
assistance of a paralegal.
In total, approximately ninety
eight hours2 were expended on the settlement process.
This
Court will not second-guess the time spent communicating
2
This total excludes time spent in mediation.
4
with TNC and opposing counsel to negotiate the settlement
in this instance.
Considering the descriptions submitted
by the parties, it appears that negotiations were lengthy
and the parties believed they had resolved numerous issues
at one point.
However,
revising
the
the
amount
settlement
of
time
and
spent
easement
drafting
documents
and
appear
exorbitant, even considering the fact that the settlement
was more involved than a typical settlement due to the
discussion of a second easement.
The court finds that ten
hours would be a reasonable time for drafting and revising
the
settlement
considering
documents
that
an
only,
additional
particularly
twenty
or
so
when
hours
were
expended which cannot be attributed to either drafting or
communications.
Thus, this Court reduces the attorney fees
for Mr. Barker’s time on this task by a total of 15.9
hours, for a reduction in fees of $2,544.
The remaining
time
will
allotted
to
the
settlement
process
not
be
disturbed as that time appears reasonable considering the
extensive negotiations involved.
Approximately
sixty-four
hours
were
expended
attorneys drafting the Sixth Circuit appellee brief.
the
Sims
do
not
directly
challenge
the
amount
of
by
While
time
drafting and revising the brief, this Court has reviewed
5
all of the time entries in considering this motion and
finds this amount of time to be unreasonable.
The appeal turned on the same legal issues presented
to
this
Court
preliminary
previously,
injunction
specifically
and
motion
for
the
motion
summary
for
judgment.
However, an additional issue was raised on appeal—the issue
of
attorneys’
fees—that
was
not
raised
to
the
district
court. However, sixty-three hours of drafting and revisions
on the brief appears unreasonable to this Court.
There
were no disputed issues of material fact and this case
turned on a simple issue of contract interpretation, which
had already been addressed previously.
Thus, even with the
additional issue of attorneys’ fees, this Court considers
that
fifty
drafting
hours
and
Accordingly,
would
revising
the
Court
be
the
a
reasonable
Sixth
will
Circuit
reduce
the
time
to
appellee
time
spend
brief.
billed
for
drafting and revising TNC’s Sixth Circuit appellee brief by
thirteen hours billed by Mr. Barker, at the rate of $160.00
per hour, for a disallowed fee of $2,080.
The Sims also challenge the inclusion of approximately
four hours of time spent coordinating the annual inspection
of the subject property.
The annual inspection of the
property itself is provided by the contract between the
parties.
Due to the continuing litigation, coordination
6
through an attorney was reasonable and necessary expense.
Based on the time entries reviewed by this Court, several
issues
appear
to
have
arisen
during
the
course
of
scheduling and rescheduling the inspection and, therefore,
this Court does not consider this time to be unreasonable.
Finally, during the Court’s review of the time entries
submitted in support of the motion, the Court recognized
two sets of entries that appear to be duplicates.
These
entries are on the same day, for the same amount of time,
by the same attorney and both entries describe the exact
same task.
Accordingly, the Court will reduce the time
billed by one two-hour entry on September 4, 2009 for Ernst
Jones, whose billing rate is $200 per hour, and one fourhour entry on July 7, 2010 for Mr. Barker, whose billing
rate is $160 per hour, for a reduction of $1,040.
Accordingly,
and
for
the
foregoing
reasons,
IT
IS
ORDERED that:
(1) The Nature Conservancy’s Motion for Supplemental
Attorneys’ Fees and Litigation Expenses [DE 66] shall be,
and the same hereby is, GRANTED.
awarded
$27,047.50
in
The Nature Conservancy is
attorneys’
fees
and
$1,256.54
in
expenses;
(2)
The
Sims’
Sur-Reply
FILED.
7
[DE
78]
shall
be
deemed
This the 28th day of March, 2013.
8
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