Dublin Eye Associates, P.C. et al v. Massachusetts Mutual Life Insurance Company et al

Filing 428

MEMORANDUM OPINION & ORDER: (1) The 414 Report and Recommendation of Magistrate Judge Edward B. Atkins is ACCEPTED and ADOPTED IN PART and REJECTED IN PART. (2) Plas' 416 Objections to the R/R are OVERRULED IN PART. (3) Dfts' 415 , [ 417], 419 Objections to the R/R are OVERRULED IN PART. (4) Plas' 400 MOTION for Evidentiary Hearing is DENIED. (5) Dft Ackerman's 418 MOTION for Attorney Fees is GRANTED, in part, and DENIED, in part. Signed by Judge Danny C. Reeves on January 16, 2015. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
DUBLIN EYE ASSOCIATES, P.C., et al.,
Plaintiffs,
V.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, et al.,

)
)
)
)
)
)
)
)
)

Civil Action No. 5: 11-128-DCR-EBA

MEMORANDUM OPINION
AND ORDER

Defendants.
*** *** *** ***
On July 12, 2013, the Court granted summary judgment in favor of Defendants
Massachusetts Mutual Life Insurance Company (“Mass Mutual”), Thomas Ackerman,
Qualified Plan Services Inc. (“QPS”), Catherine Chatfield, and Kimberly Shea on statute of
limitations grounds. [Record No. 352] Subsequently, the defendants’ motions for attorneys’
fees were granted. [Record No. 372] The decision regarding the amount of fees to be
awarded was referred to United States Magistrate Judge Edward B. Atkins for review and
issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636. Plaintiffs Dublin
Eye Associates, P.C., Dr. Roger D. Smith, and Dr. James Y. Jones moved the Court for an
evidentiary hearing on this issue. [Record No. 400]
On October 31, 2014, the magistrate judge issued his report, recommending that the
plaintiffs’ motion for an evidentiary hearing be denied and that attorneys’ fees be awarded in
the following amounts: Mass Mutual $699,014.60; Ackerman $347,925.90; and QPS,
Chatfield, and Shea $211,573.00 plus $5,830.80 for travel costs. [Record No. 414, p. 13]
-1 

After reviewing the Report and Recommendation and having considered the parties’
objections, the Court will adopt in part and reject in part the magistrate’s recommendation.
This Court conducts a de novo review of the portions of a magistrate judge’s report
and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). It “may accept, reject,
or modify, in whole or in part, the findings or recommendations [of] . . . the magistrate.” Id.
The plaintiffs have made timely objections to the Report and Recommendation. [Record No.
416] Initially, an evidentiary hearing regarding the issue of attorneys’ fees is requested. [Id.,
10–11] The plaintiffs argue that the entirety of the attorneys’ fees awarded to the defendants
should be denied or, in the alternative, that only those hours in pursuit of the statute of
limitations defense should be awarded. [Id., pp. 12–14] Further, the plaintiffs assert that the
number of hours “reasonably expended” by the defendants in the case must be significantly
reduced because of double-billing, redactions, and various other problems with the
defendants’ time entries. [Id., pp. 22–25] Also, the plaintiffs contend that the magistrate’s
award of fees attributable to the preparation of attorneys’ fees petitions was contrary to
established Sixth Circuit precedent. 1

[Id., pp. 38–39]

The defendants have also objected to the Report and Recommendation. [Record Nos.
415, 417, 419] Mass Mutual contends that the magistrate judge improperly reduced the rates
charged by its attorneys in determining the amount of fees to be awarded. [Record No. 419,
pp. 11–25] It also asserts that it is entitled to recover its travel costs. [Id., pp. 26–29]
Ackerman argues that the magistrate judge erred in characterizing Frost Brown Todd partner

1
The plaintiffs also object to issues which the Court has addressed upon multiple times. These
issues will not be specifically addressed as they have already been fully presented to the Court.
-2 

Medrith Norman as a partner, as opposed to a senior partner. [Record No. 417, p. 3]
Additionally, Ackerman asks for an award of travel costs. [Id., p. 4] Defendants QPS,
Chatfield, and Shea have objected to clerical errors in the hours the magistrate attributed to
attorneys Andrew Dorman and Lauren Lunsford and paralegal Angela Franklin. [Record No.
415, p. 1] Finally, each defendant objects to the magistrate judge’s failure to address
additional attorneys’ fees purportedly incurred after June 30, 2014, in connection with
briefing on the issue of attorneys’ fees and unsuccessful appeals.2
I.

Evidentiary Hearing
As a preliminary matter, the plaintiffs moved for an evidentiary hearing relating to the

amount of attorneys’ fees. [Record No. 400] The magistrate judge denied the motion in his
Report and Recommendation. [Record No. 414, p. 13] The plaintiffs objected to the denial
on various grounds including financial hardship and the defendants’ “billing practices.”
[Record No. 416, p. 7–8] “A hearing is required only where the district court cannot fairly
decide disputed questions of fact on the basis of affidavits and other documentation.” Bldg.
Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392,
1402 (6th Cir. 1995). The only issue presently for consideration is the amount of attorneys’
fees to be awarded. After reviewing the affidavits and other documentation included in the
record, there are no facts or disputed matters which necessitate an evidentiary hearing.
II. Lodestar Amount
A district court has discretion in awarding attorneys’ fees. Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). Courts within the Sixth Circuit utilize the

2
Defendant Ackerman has also moved the Court for an award of these fees. [Record No. 418]
-3 

“lodestar” method to determine the appropriate fee award to a prevailing party. Gradview
Raceway, 46 F.3d at 1401. When calculating attorneys’ fees awards, the Courts primary
concern is the reasonableness of the fee. A reasonable fee is “adequately compensatory to
attract competent counsel yet . . . avoids producing a windfall for lawyers.” Adock-Ladd v.
Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). Courts begin calculating a reasonable
fee by determining the fee applicant’s “lodestar,” which is the “proven number of hours
reasonably expended on the case by an attorney, multiplied by a reasonable hourly rate.”
Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005) (citing Hensley v. Eckerhart,
461 U.S. 424, 435 (1983)).
A.

Reasonable Hourly Rate

The magistrate judge determined appropriate hourly rates for all defense counsel and
staff in the following manner: (i) $273.00 for senior partners; (ii) $190.00 for partners with
less experience; (iii) $160.00 for associates; (iv) $90.00 for paralegals; and (v) $65.00 for
law clerks. [Record No. 414, pp. 6–7] Mass Mutual has objected to the hourly rates.
[Record No. 419, pp. 11–24] It instead requests hourly rates for partners ranging from $450–
$280, associates rates from $210–$180, and paralegal rates from $155–$125.
The magistrate judge found that the highest amounts requested by Mass Mutual’s
counsel were “greater than necessary to obtain competent representation in matters of
complex civil litigation.” [Record No. 414, p. 6] In determining the applicable rate, the
magistrate judge relied upon the affidavits of Barry Hunter of Frost Brown Todd, LLC
(counsel for Ackerman), and Matthew Lockaby of Reminger Co., L.P.A. (counsel for QPS,
Chatfield, and Shea). However, Mass Mutual asserts that this evidence is inapplicable to
-4 

calculating the appropriate hourly rates for its counsel because of the nature of their
retention. It contends that the defense costs for Ackerman, QPS, Chatfield, and Shea were
paid by their respective insurance companies, who had previously negotiated reduced hourly
rates with their firms (Frost Brown Todd and Reminger). Thus, Mass Mutual argues that the
rates charged by counsel for these defendants were less than the prevailing market rate.
[Record No. 419, p. 13–19] Instead, they assert that the Court should rely upon the affidavit
of attorney John W. Hays, which states that the rates charged by Mass Mutual’s counsel were
“reasonable and consistent with the fees charged in comparable complex commercial cases
within the Eastern District of Kentucky.”3 [Record No. 392-4, p. 5]
The rates requested by counsel provide the Court with a starting point from which it
determines the appropriate market rate for “lawyers of comparable skill and experience . . .
within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir.
2004). Therefore, the appropriate rate does not necessarily correspond with the award sought
by the particular counsel, but is determined by the market rate sufficient to advance the
client’s goals. Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007). Further, a
district court is not required to adopt the attorneys’ fees rates charged by the highest paid
attorneys in town. See Maxwell’s Pic-Pac, Inc. v. Dehner, No. 3:11-CV-18-H, 2013 WL
1003692, at *3–5 (W.D. Ky. Mar. 13, 2013).
The Court concludes that the hourly rates determined by the magistrate judge, as
applicable to counsel for Mass Mutual, do not adequately reflect the market rate for complex

3
Mass Mutual also argues that because the plaintiffs only challenged the hourly rates for lead
counsel Barbara B. Edelman, they implicitly recognized that the other rates requested were reasonable.
[Record No. 419, p. 14]
-5 

civil litigation cases in this venue. In making this determination, the magistrate judge relied
on the affidavits of Matthew Lockaby (Reminger) and Barry Hunter (Frost Brown Todd).
However, the affidavits stated that the hourly rates were reasonable “for similar
engagements,” alluding to the previously-negotiated rates between the subject insurance
companies and the firms (Frost Brown Todd and Reminger) representing them. [Record No.
414, p. 6] The rates applicable to such engagements do not necessarily coincide with the
market rate for lawyers. As stated in John W. Hay’s affidavit, the defense costs paid by
insurance companies “were significantly less than the rates that lawyers of comparable skill
and experience can reasonably expect to command in complex commercial cases within the
Eastern District of Kentucky.” [Record No. 392-4, p. 4]
This case presented difficult legal and discovery issues. Mass Mutual’s counsel
brought considerable knowledge and experience to the case, in which they were ultimately
successful on the merits. They did a majority of the work on the numerous joint motions
filed on behalf of the defendants. Further, unlike counsel for the other defendants, counsel
for Mass Mutual did not previously negotiate limited hourly rates in connection with their
representation.
The Court has considered the applicable evidence, the nature of the action, the
expertise of the attorneys, and the favorable outcome achieved by the defendants. Although
the Court does not adopt the hourly rates recommended by the magistrate judge, based on the
relevant information it also does not believe that Mass Mutual’s counsel’s requested rates
correspond with the market rate.

Instead, hourly rates between the magistrate judge’s

recommendation and the requested rates are appropriate. Senior partner Barbara Edelman
-6 

has over thirty years of experience, with a focus on complex civil litigation. She will be
awarded an hourly rate of $300.00. Partner Angela Edwards has twenty years of experience
in litigation, including ERISA claims. She will be awarded an hourly rate of $230.00. The
experience of associates representing Mass Mutual varies, but the Court finds that an hourly
rate of $180.00 is sufficient and appropriate. Finally, paralegals representing Mass Mutual
will be awarded a rate of $110.00 per hour. Thus, Mass Mutual’s objection will be sustained
in part.
Defendant Ackerman objects to the hourly rate for Medrith Norman. The magistrate
judge determined the appropriate hourly rate for Barry Hunter to be $273.00 and for Medrith
Norman to be $190.00, both partners at Frost Brown Todd.

[Record No. 414, p. 10]

Ackerman argues that the hourly rate for Norman should be $273.00 as well. [Record No.
417, p. 3] As evidence, Ackerman asserts that $273.00 per hour is similar to what Frost
Brown Todd charges for all partner time on insurance matters. He further contends that John
W. Hays’ affidavit demonstrates that this amount is below the market rate for partner time in
complex commercial litigation matters. [Id.; Record No. 392-4, p. 4]
In determining the proper hourly rate for Norman, the information contained in the
affidavit of Matthew Lockaby is instructive. [Record No. 414, p. 6] Lockaby stated that
reasonable hourly rates for partners in similar engagements between insurance companies
and firms are $190–200. [Record No. 392-18, p. 1] Further, the difference in experience
between Hunter and Norman warrants the differing rates. Barry Hunter has over 35 years of
experience in this field. In contrast, Norman has been practicing for less than 20 years.
Finally, all other partners with experience similar to Norman’s were given an hourly rate of
-7 

$190.00. Thus, the magistrate judge’s hourly award of $190.00 for attorney Norman is
reasonable.
B.

Hours Reasonably Expended

A party asking for an award of fees is entitled to bill hours “reasonably expended.”
Hensley, 461 U.S. at 434. However, they must “exercise billing judgment with respect to the
hours worked” and exclude those fees which are “excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours
from his fee submission.” Id. at 434, 437. Attorneys who seek fees have an obligation to
“maintain billing time records that are sufficiently detailed to enable courts to review the
reasonableness of the hours expended on the case.” Imwalle, 515 F.3d at 552. Here, the
defendants’ billing statements document time billed beginning April 25, 2011, and ending
June 30, 2014. This period of time corresponds with the initial review of the Complaint by
Frost Brown Todd on April 25, 2011, and the final billing day incorporated in the
defendants’ memorandum in support of an attorneys’ fees award, June 30, 2014.4 The
documentation is sufficient for the Court to determine the reasonable number of hours
expended.
The magistrate judge awarded hours in following manner; (i) Mass Mutual (Dinsmore
& Shohl) 3,704 hours: (ii) Ackerman (Frost Brown Todd) 1,705.2 hours; and (iii) QPS,
Chatfield, and Shea (Reminger) 1,367.5 hours. [Record No. 414, pp. 10–11] The parties
object to various parts of the number of hours designated by the magistrate judge.

4
There were a number of hours billed prior to June 30, 2014, in connection with appeals, which
were not included in the initial fee request.
-8 

1. Time Spent on Unsuccessful Claims
The magistrate judge determined that all of the hours requested by the defendants,
from the beginning of the case through June 30, 2014, were reasonable considering the
complexity of the issues and the favorable fact-based outcome achieved by the defendants.
[Record No. 414, pp. 7–10] The plaintiffs have objected to this determination. [Record No.
416, pp. 15–19] Specifically, they assert that hours billed by the defendants’ attorneys are
excessive, considering that the case was decided on statute of limitations grounds, and allege
that the defendants delayed in moving for summary judgment on this issue. As a result, the
plaintiffs contend that the amount requested should be denied entirely or, in the alternative,
limited to work done pursuing the statute of limitations issue. [Record No. 416, pp. 12–18]
A party is not entitled to fees for work on unsuccessful claims that are sufficiently
different from their successful claims. Imwalle, 515 F.3d at 552. The Supreme Court in
Hensley, however, expressly forbid district courts from determining fees based on the
success or failure of individual claims arising from a common core of facts or related legal
concepts. 461 U.S. at 448; cf. Déjà vu v. Metro. Gov’t of Nashville and Davidson Cnty.,
Tenn., 421 F.3d 417, 423 (6th Cir. 2005) (“[A] court should not reduce attorney fees based
on a simple ratio of successful claims to claims raised.”). Instead, the Sixth Circuit has
found that such claims “should not be treated as distinct claims” for the purpose of
calculating attorneys’ fees, and “the cost of litigating the related claims should not be
reduced.” Thurman v. Yellow Freight Sys. Inc., 90 F.3d 1160, 1169 (6th Cir. 1996).
The plaintiffs’ claims asserted a complex allegation of fraud requiring over two years
of litigation. The record currently consists of over four hundred docket entries, and is littered
-9 

with filings demonstrating the contentious manner in which the case has been litigated.
Discovery was particularly challenging, consisting of facts and documents up to thirty years
old and the depositions of numerous fact witnesses in various states. The Court does not find
any justification for limiting the defendants’ fee award in the manner requested by the
plaintiffs. The numbers of hours devoted to litigating the case were reasonable considering
the discovery challenges and motion practice. Further, although the statute of limitations
proved decisive, the other claims involved were “based on a common core of facts [and]
related legal theories” and should not be treated as distinct under these circumstances. Id. at
1169. Thus, the fee award should not be denied entirely, nor should it be limited to fees
attributable to the statute of limitations issue.
The plaintiffs further argue that fees should not be awarded for any time spent on the
case before the filing of the Amended Complaint on August 31, 2011. Prior to that date, no
claims arising under ERISA had been asserted. [Record No. 416, pp. 17–18] The plaintiffs
initially raised only state law claims of fraud, breach of fiduciary duty, and unjust
enrichment. [Record No. 1] The defendants moved to dismiss the claims. [Record No. 19]
The Court granted the motion, concluding that the state law claims of fraud and unjust
enrichment claims were preempted by ERISA. [Record No. 28] However, the Court also
granted the plaintiffs’ motion for leave to file a verified Amended Complaint omitting the
fraud and unjust enrichment claims, and clarifying that the breach of fiduciary duty claim
was intended to be made under Section 404(a) of ERISA. [Id.; Record No. 30]
The defendants cannot be penalized for the pleading decisions of the plaintiffs. The
time spent reacting to the initial Complaint and constructing arguments resulting in the
- 10  

dismissal of the state law claims were essential to the litigation of the case. Therefore, they
were reasonably expended in the litigation process and are properly included in any fee
award.
Finally, the plaintiffs object to the magistrate judge’s recommendation that hours
attributable to unsuccessful motions and depositions not used in the motion for summary
judgment be awarded. [Record No. 416, p. 18] Specifically, the plaintiffs claim that the
magistrate judge incorrectly awarded the defendants $127,073.00. [Record No. 402-1, p. 1]
After reviewing the billing entries, the Court finds that these fees were related to the
litigation as a whole and should not be treated as distinct. Thus, the magistrate judge
properly recommended they be awarded.
2. Mediation
The magistrate judge awarded fees in connection with mediation of the dispute. He
determined that fees devoted to the voluntary mediation were “part of actively and
effectively litigating a case in civil cases practiced before the Court.” [Record No. 414, pp.
11–12] The plaintiffs object to this finding and assert that the parties agreed to bear their
own costs and expenses related to the mediation. [Record No. 416, p. 38; Record No. 402, p.
38] In response, the defendants assert that “[t]he parties agreed to split the cost of a
mediator, but at no point agreed not to seek reimbursement for the costs of mediation.”
[Record No. 425, p. 27]
The Court agrees with the magistrate judge that the time spent by the defendants in
preparation for mediation was not “unusual or extraordinary.” [Record No. 414, p. 12] In
fact, the plaintiffs admit as much in their objections to the Report and Recommendation by
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stating that the amount requested in relation to the mediation is “not substantial” in relation
to the total fee award. [Record No. 416, p. 38] Mediation is an effective and integral part of
litigation in civil cases. Further, the plaintiffs have failed to provide any evidence supporting
an agreement between the parties to bear their own costs in relation to the mediation. As a
result, the Court finds that the defendants’ hours attributable to mediation are reasonable and
the objection is overruled.
3. Objections Related to Hours Expended by Specific Counsel and Staff
Mass Mutual and the plaintiffs have objected to the total amount of hours included in
the award to Mass Mutual. [Record Nos. 416-1, p. 2; 419, p. 11] The magistrate judge
included all hours incurred by Mass Mutual’s counsel through June 30, 2014. However, the
billing statements provided to the Court removed time entries in connection with appeals,
which the magistrate judge included. The Court finds that the magistrate judge incorrectly
awarded those hours and will decrease the amount in accordance with the billing statements.5
[See Record Nos. 392-15; 392-16; 392-17]
Further, QPS, Chatfield, and Shea have objected to the amount of hours the
magistrate judge attributed to partner Andrew Dorman (Reminger). Dorman was credited
with 299.3 hours, when in fact he spent a total of only 118.9 hours on the case. [Record No.
415, p. 1] The Court has confirmed this error and will reduce hours attributed to Andrew
Dorman by 180.4 and the total fee award by $34,276.00. Also, the magistrate judge credited

5
The magistrate judge recommended Mass Mutual be awarded 3,704 hours. After reviewing the
billing statements, the Court finds that the number of hours attributable to Mass Mutual is 3,532. This
reduction is reflected in the chart pertaining to the number of hours awarded to Mass Mutual’s counsel
from Dinsmore & Shohl.
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193.7 hours of paralegal work to Angela Franklin (Reminger). However, review of the
billing entries demonstrates that she only worked 111.1 total hours in connection with the
case. As a result, the total hours credited to Angela Franklin shall be reduced by 82.6 and the
total fee award by $7,434.00. Further, QPS, Chatfield, and Shea have objected to the
characterization of the work done by attorney Lauren Lunsford (Reminger). The magistrate
judge credited 24.2 hours to Lunsford at the rate of a $65.00 per hour as a law clerk. The
defendants claim that 15 of those hours should have been calculated at an associate hourly
rate of $160.00. [Id.] The Court has confirmed this as well and will increase the fee award
applicable to Lunsford by $1,425.00.
Finally, the magistrate judge failed to consider time requested by Ackerman in
connection with work done by paralegals Lara Drake, Mary Ann Cochran, and Audrey
Blevins (Frost Brown Todd). The Court has reviewed these time entries and found that they
were reasonably expended. Drake billed 12.4 hours, Cochran 10.6 hours, and Blevins 1.0
hours in connection with the case. As a result, the hours reasonably expended by counsel for
Ackerman will be increased by 24.0 and the total fee award by $2,160.00.
4. Specificity of Time Entries
The plaintiffs object that many of the defendants’ billing entries resulted in “double
billing,” entries were redacted in a manner impossible to review, and that hours spent on
tasks which could have been completed by paralegals were done by attorneys. [Record No.
416, pp. 19–25] The plaintiffs provided itemized sheets to demonstrate these alleged errors.
[Record No. 402-1] The magistrate judge found that none of the billings were duplicative
but did not specifically address the claims relating to redaction and misuse of attorney time.
- 13  

Regarding the assertion of double billing, the magistrate judge concluded that the
contested entries “represented[ed] tasks performed by two attorneys actively involved in the
representation of a client” and that “considering the complex nature of this case, and the fact
that the record reflects that even Plaintiffs had multiple attorneys appearing a [sic]
depositions, the Court does not find error in this practice.” [Record No. 414, p. 11] This
Court agrees that the allegations of double billing are unsupported. The case involved
multiple defendants being represented by multiple law firms. The litigation was contested at
nearly every turn and involved numerous complex issues. Further, having more than one
attorney present in the instances contested by the plaintiffs can be valuable to the attorneys
and increase efficiency during the litigation process. See Mikolajczyk v. Broadspire Servs.,
Inc., 499 F. Supp. 2d 958, 966 (N.D. Ohio 2007). Thus, no reduction is appropriate for
alleged double billing.
Concerning the redaction of time entries, the crucial requirement for an award of
attorneys’ fees is that “[t]he documentation offered in support of the hours charged must be
of sufficient detail and probative value to enable the court to determine with a high degree of
certainty that such hours were actually and reasonably expended in the prosecution of the
litigation.” United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Ass’n,
Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 502 n.2 (6th Cir. 1984).
Where documentation is inadequate, the district court may reduce the award accordingly.
Hensley, 461 U.S. at 433. Although counsel need not “record in great detail” each minute he
or she spent on an item, the general subject matter should be identified. Imwalle, 515 F.3d at
553.
- 14  

The Sixth Circuit has upheld awards of attorneys’ fees where entries made by counsel
in billing records “were sufficient even if the description for each entry was not explicitly
detailed.” McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005). Similarly, claimants
meet their burden to provide detailed billing records where counsel provides “itemized
statements describing the subject matter, the attorney, the time allotment, and the charge for
all work done.” Anderson v. Wilson, 357 F. Supp. 2d 991, 999 (E.D. Ky. 2005). Further, this
court recently found that “[a] billing entry which states that the time billed was spent on
‘Continued Research’ is sufficiently descriptive when previous entries describe the subject of
the research.” Laney v. Getty, No. 5: 12-306-DCR, 2014 WL 5167528, *4 (E.D. Ky. Oct. 14,
2014). However, entries which “do not identify even a general subject matter of the tasks
performed” are insufficient to sustain a fee award. Id. at *5.
The defendants’ counsel submitted pages of itemized billing records detailing the
work completed during the litigation of this case. For each entry, defendants’ counsel
included the date that the time was billed, the specific task completed, and the fractional
hours billed.

Taking into context the status of the litigation and the corresponding

proceedings, nearly all of the billing entries sufficiently allow the Court to ascertain the tasks
performed. However, there are three redacted entries which do not allow the general subject
matter of the tasks performed to be determined. As a result, the time awarded to senior
partner Barry Hunter (Frost Brown Todd) will be reduced by 2.00 hours, to partner Angela
Edwards (Dismore & Shohl) will be reduced by 0.70 hours, and to paralegal Lorna Fulkerson
(Dinsmore & Shohl) will be reduced by 1.5 hours. [See Record No. 392-2, p. 35; Record No.
392-15, p. 66; Record No. 392-17, pp. 31–32]
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The plaintiffs also object that specific tasks performed by the defendants’ attorneys
should have been completed by paralegals. [See 402-1, p. 10, 33] The Court has reviewed
the disputed billing entries and determined that the attorneys adequately utilized their time in
connection with these tasks. No hourly rate reduction is warranted for these entries.
C.

Fees Incurred After June 30, 2014

On March 24, 2014, the defendants’ motions for attorneys’ fees were granted.
[Record No. 372] Pursuant to the Court Order, the matter was referred for a report and
recommendation on the specific amount of fees to be awarded. Subsequently, on June 23,
2014, the magistrate judge ordered the defendants to file a brief setting forth any evidence in
support of its request for attorneys’ fees. [Record No. 391] On July 7, 2014, the defendants
complied with the Order and presented evidence of their fees through June 30, 2014.
[Record No. 392]
The magistrate judge was presented with billing entries documenting the fees
sustained through June 30, 2014, but did not comment on an award for subsequent fees.
Defendant Ackerman has moved the Court for an award of fees incurred after June 30, 2014,
and has provided time entries through October of 2014.

[Record Nos. 418; 418-4]

Defendants Mass Mutual, QPS, Chatfield, and Shea have also requested fees in connection
with this time period, but have done so through their objections to the magistrate judge’s
report and recommendation. [Record Nos. 415, p. 4–5; 415-2; 419, pp. 26–28; 419-3] The
fees requested relate to litigation of the amount of fees to be awarded and successful defenses
of appeals.

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Before the Court is the determination of fees incurred pursuant to litigation of the
merits of the case and the fees sustained in compliance with the Court’s Order to award
attorneys’ fees. [Record No. 372] However, the Court has not, and does not intend to award
the cost of litigating the amount of the fee award. Further, whether an award for fees in
connection with appeals in the case is warranted is better addressed by the appellate court in
which the appeal was taken.
Nevertheless, the hours spent through July 7, 2014, in connection with the Court’s
March 24, 2014 Order, are proper. As a result, the hours reasonably expended by Mass
Mutual will be increased by 38.6, and the fee award by $8,204.00.6 The hours for Ackerman
will be increased by 15.0, and the fee award by $2,320.00.7 Finally, the hours for QPS,
Chatfield, and Shea will be increased by 5.8, and the fee award by $1,102.00.8
Taking into consideration the reasonable hourly rates and hours reasonably expended
by defendants’ counsel, the Court finds the following awards for attorneys’ fees to be
applicable:
DINSMORE
& SHOHL

Employee
Status

Senior
Partner
Hours

Barbara
Edelman

Senior
Partner

Partner
Hours

Associated
Hours

Paralegal
Hours

Law Clerk
Hours

833.2

6
The billing entries include: 7.8 hours by senior partner Barbara Edelman; 6.4 hours by partner
Angela Edwards; and 24.4 hours by associate Haley McCauley. [Record No. 419-3, pp. 44–45]
7
The billing entries include 9.7 hours by partner Medrith Norman and 5.3 hours by paralegal
Angela Horger. [Record No. 418-2, p. 2]
8
The billing entries include 5.8 hours attributed to partner Matthew Lockaby. [Record No. 415-2,
pp. 2–4] 
- 17  

Angela
Edwards

Partner

1,024.9

Lisa D.
Hughes

Associate

34.4

Haley
McCauley

Associate

1,313.6

Sarah
McKenna

Associate

51.6

Wendy N.
Lucas

Paralegal

33.2

Lorna
Fulkerson

Paralegal

225.5

Bradley
Lambert

Paralegal

52

Total Hours

833.2

1,024.9

1,399.6

310.7

0.0

Rate

$300.00

$230.00

$180.00

$110.00

$65.00

Total
Amount

$249,960.00 $235,727.00 $251,928.00 $34,177.00

$0.00

Thus, the amount of fees awarded to Mass Mutual is $771,792.00.

FROST
BROWN
TODD

Employee
Status

Senior
Partner
Hours

Barry Hunter

Senior
Partner

Partner
Hours

522.3

Joseph Dehner Partner

1.3

Deborah Tudor Partner

3.4

David Walulik Partner

0.9
- 18 -

Associate
Hours

Paralegal
Hours

Law Clerk
Hours

Medrith
Norman

Partner

898.3

Kathryn
Kendrick

Partner

2.5

Mark Flores

Associate

50.3

Rebekah
Ballard

Associate

74.8

Sally
Spielvogel

Associate

1.2

Angela Horger Paralegal

163.2

Lara Drake

Paralegal

12.4

Mary Ann
Cochran

Paralegal

10.6

Audrey
Blevins

Paralegal

1.0

Total Hours

522.3

906.4

126.3

187.2

0.0

Rate

$273.00

$190.00

$160.00

$90.00

$65.00

Total Amount

$142,587.90 $172,216.00 $20,208.00

$16,848.00

$0.00

Paralegal
Hours

Law Clerk
Hours

Therefore, the amount of fees awarded to Ackerman is $351,859.90.
REMINGER

Employee
Status

Senior
Partner
Hours

Partner
Hours

Andrew
Dorman

Partner

118.9

Matthew
Lockaby

Partner/
Associate

310.1

Michael
Mahon

Associate

440.0

5.4

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Associate
Hours

Angela
Franklin

Paralegal

111.1

Michelle
Tock

Paralegal

2.0

Amanda
Woolridge

Paralegal

1.2

Lauren
Lunsford

L. Clerk/
Associate

Nathan
Lennon

L. Clerk

8.0

Ian Loos

L. Clerk

89.4

15.0

9.2

Total Hours

0.0

429.0

460.4

114.3

106.6

Rate

$273.00

$190.00

$160.00

$90.00

$65.00

Total Amount

$0.0

$81,510.00

$73,664.00

$10,287.00

$6,929.00

Accordingly, the amount of fees awarded to QPS, Chatfield, and Shea is $172,390.00.
D. Time Spent on Attorneys’ Fees Calculation
The plaintiffs object to the amount of fees awarded for time spent working in
connection with the fee award. [Record No. 416, p. 38] The magistrate judge awarded these
fees, but did not explicitly consider fees in the recommended disposition. The Sixth Circuit
has held that “a lawyer should receive a fee for preparing and successfully litigating the
attorney fee case after the original case is over.” Coulter v. Tennessee, 805 F.2d 146, 151
(6th Cir. 1986).

Absent unusual circumstances, “the hours allowed for preparing and

litigating the attorney fee case should not exceed 3% of the hours in the main case when the
issue is submitted on the papers without a trial.” Id. The plaintiffs assert that the request at

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bar constitutes more than nine percent of the total fees and should be limited to three percent.
[Record No. 402-1, p. 1]
There are no unusual circumstances present in this case. It is clear from the billing
statements that the defendants spent a substantial amount of time researching and preparing
matters in connection with the award of attorneys’ fees. Defendant Ackerman provided the
Court with documentation compiling the number of hours spent by each attorney in
connection with the fee award. [Record No. 417-3] After including those hours attributable
to the fee award after June 30, 2014, Ackerman’s counsel incurred $25,446.90 in connection
with the Court’s award of fees. Thus, the fee award for Ackerman in connection with
recovering fees is $9, 792.39.9
However, defendants Mass Mutual, QPS, Chatfield, and Shea failed to provide the
Court with any documentation related to the amount of fees incurred in connection with the
fee award. Instead, they provided the Court with billing statements without any discernible
way to calculate the number of hours reasonably expended or the reasonable hourly rates in
connection with the fee award, other than for the Court itself to determine the amounts line
by line. This is not the role of the Court. As a result, the plaintiffs’ objection will be
sustained and the total award of fees for these defendants will be reduced by ten percent.10

9
The Court included hours related to recovery of the fees in the original calculations. Thus, after
implementing the three percent cap, the fee for Ackerman is reduced to $336,205.39. ($351,859.90 –
$25,466.90 = $326,413.00. $326,413.00 x 3% = $9,792.39. $326,413.00 + $9,797.39 = $336,205.39).
10
Thus, the total fee award for Mass Mutual will be reduced to $694,612.80. ($771,792.00 x 10% =
$77,179.2. $771,792.00 – $77,179.2 = $694,612.80). The total fee award for QPS, Chatfield, and Shea
will be reduced to $155,151.00. ($172,390.00 x 10% = $17,239.00. $172,390.00 – $17,239.00 =
$155,151.00).
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E. Travel Costs
Mass Mutual and Ackerman object to the magistrate judge’s finding that they should
not be awarded travel costs. [Record Nos. 417, p. 4; 419, pp. 28–29] Travel costs may be
reimbursed as part of an award for attorneys’ fees, unless they have already been included as
part of compensable hours. Thompson v. Quorum Health Res., LLC, No. 1: 06-CV-168,
2010 WL 2044542, at *6 (W.D. Ky. May 21, 2010). The magistrate judge recommended
travel costs be awarded to defendants QPS, Chatfield, and Shea noting that their counsel
(Reminger) “submit[ted] a succinct itemization of travel related expenses incurred by
counsel necessary to their representation. In addition, the invoices for Reminger reflect[ed]
that travel related expenses were not factored into their compensable hourly rates, as
Reminger’s client paid half the full rate for attorney hours spent in travel.” [Record No. 414,
p. 12] In contrast, the magistrate judge found that Mass Mutual and Ackerman
failed to submit satisfactory evidence sufficient to allow the Court to calculate
a reasonable award. Those itemizations submitted by Dismore and Shohl and
Frost Brown Todd contain expenses such as deposition fees, photocopy
expenses, postage, and other matters previously exhaustively briefed,
addressed and either awarded or denied by the Court.
[Id.]
The Court agrees that Defendants Mass Mutual and Ackerman should not be awarded
travel costs. Neither party reduced the compensable hourly rates for their attorneys during
hours spent traveling. Further, although both parties compiled summaries of their travel
costs, which were not presented to the magistrate judge, they still included matters

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previously considered by the Court.11 [Record Nos. 417-1; 419-4] Thus, the objections are
overruled.
III.

Conclusion
The magistrate judge properly concluded that an evidentiary hearing is not required to

determine the amount of the fee award. The hourly rates recommended were reasonable as
applied to defendants Ackerman, QPS, Chatfield, and Shea. However, the hourly rates
applicable to Mass Mutual did not reflect the market rate for lawyers in complex civil
litigation matters and have been adjusted. The reasonable hours expended have been revised
to include reductions for various overcharges included in the magistrate judge’s Report and
Recommendation, instances of improper redactions, and to include hours after June 30, 2014,
incurred in compliance with the Court’s Order of attorneys’ fees. Further, the plaintiffs’
objection to the amount of fees awarded in connection with recovery of the fee award was
sustained. As a result, the total award applicable for each defendant is as follows: (i) Mass
Mutual $694,612.80; (ii) Ackerman $336,205.39; and (iii) QPS, Chatfield, and Shea
$155,151.00. Further, no award of travel costs is warranted for Defendants Mass Mutual or
Ackerman. Accordingly, it is hereby
ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Edward

B. Atkins [Record No. 414] is ACCEPTED and ADOPTED IN PART and REJECTED
IN PART as set forth above.

11
Mass Mutual also requested travel rates in connection with litigation from July 1, 2014 through
October 31, 2014. [Record No. 419, p. 29–30] These travel costs will be denied as well.
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2.

The

plaintiffs’

objections

to

the

magistrate

judge’s

Report

and

Recommendation [Record No. 416] are OVERRULED IN PART as set forth above.
3.

The

defendants’

objections

to

the

magistrate

judge’s

Report

and

Recommendation [Record Nos. 415, 417, 419] are OVERRULED IN PART as set forth
above.
4.

The plaintiffs’ motion for an evidentiary hearing [Record No. 400] is

DENIED.
5.

Defendant Ackerman’s motion for further attorneys’ fees [Record No. 418] is

GRANTED, in part, and DENIED, in part.
This 16th day of January, 2015.

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