JONES v. FAIRBANK RECONSTRUCTION CORP et al

Filing 250

ORDER ON FAIRBANK'S PETITION FOR ATTORNEYS' FEES & COSTS- #246 Motion for Attorney Fees By JUDGE GEORGE Z. SINGAL. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMMIE JONES, as parent and
natural guardian of M.J., a minor,
Plaintiff,
v.
FAIRBANK RECONSTRUCTION
CORP., d/b/a FAIRBANK FARMS,
Defendant & Cross-Claim Plaintiff,
&
GREATER OMAHA PACKING
COMPANY, INC.,
Defendant & Cross-Claim Defendant.

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ORDER ON FAIRBANK’S PETITION FOR ATTORNEYS’ FEES & COSTS

Before the Court is the Petition for Attorneys’ Fees & Costs (ECF No. 246) by Cross-Claim
Plaintiff Fairbank Reconstruction Corp. (“Fairbank”). As briefly explained herein, the Motion is
GRANTED.

I.

BACKGROUND
On May 15, 2014, Fairbank received a favorable jury verdict on its claim that that Greater

Omaha Packing Company, Inc. (“GOPAC”) breached an express warranty. Thereafter, on May
16, 2014, this Court entered final judgment in favor of Fairbank. Notably, this trial had been the
second time Fairbank and GOPAC had appeared before a jury seeking a determination as to
whether 2009 Northeast E.coli Outbreak was caused by GOPAC in breach of the “Fairbank

Guarantee,” which was a part of the contract under which GOPAC had supplied beef to Fairbank.
Rather than recount the history of the first trial and its post-trial proceedings, the Court directs
interested readers to: Long v. Fairbank Reconstruction Corp., 701 F.3d 1 (1st Cir. 2012) (affirming
the jury verdict); Long v. Fairbank Farms Reconstruction Corp., D. Me. Docket No. 1:09-cv-592GZS, 2014 WL 1276152 (D. Me. Mar. 27, 2014) (ordering GOPAC to pay Fairbank’s attorneys’
fees and costs); and, the Order on Motion for Summary Judgment (ECF No. 104).

II.

DISCUSSION
As this Court noted in awarding attorneys’ fees in connection with the prior related

Long/Smith case, “[i]n general, ‘a federal court will enforce contractual rights to attorneys' fees if
the contract is valid under applicable state law’ and ‘where a contract authorizes an award of
attorneys' fees, such an award becomes the rule rather than the exception.” Long v. Fairbank
Farms Reconstruction Corp., No. 1:09-CV-592-GZS, 2014 WL 1276152, at *2 (D. Me. Mar. 27,
2014) (citing McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1313 (2d Cir.1993)). It is established
as a matter of law that New York law governs the Fairbank Guarantee, which is at issue here.
While this contract provides no explicit reasonableness cap on the fees and expenses that Fairbank
may seek in connection with a breach, the Court has previously held that New York law still
contemplates consideration of the lodestar to assist in the determination of what a “reasonable
client in like circumstances would have expended absent an indemnification provision.” Long,
2014 WL at *3 (collecting cases & quoting Union Cent. Life Ins. Co v. Berger, 10 CIV. 8408
PGG, 2013 WL 6571079 (S.D.N.Y. Dec. 13, 2013)). The hourly rates charged in this matter are
not the subject of any objection. As noted by counsel, the rates charged by the most senior
attorneys were lower than the hourly rates typically charged. (See Weber Aff. (ECF No. 246-1)

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¶¶ 11 & 13.) The other hourly rates are also reasonable. (See id. ¶¶ 18 & 22.) Thus, the only real
question relates to the number of hours reasonably expended.
GOPAC’s Response to the Pending Fee Petition (ECF No. 247) focuses on multiple
specific objections to the hours expended by Gass Weber Mullins LLC, who have acted as counsel
for Fairbank in this case as well as multiple other cases related to the 2009 Northeast E.coli
Outbreak. As GOPAC correctly points out, a September 2012 decision by this Court precludes
Fairbank from seeking recovery for contractual attorneys’ fees and expenses that are not tied to
the claims asserted by Jones in this particular case. See Order on Partial Motion to Dismiss (ECF
No. 55) at 5-6. GOPAC’s discrete objections focus on work done by Fairbank’s counsel that
GOPAC asserts runs afoul of this Order because the work, as described, is not tied to Jones’ claims.
The Court considers each specification objection in turn but notes that Fairbank did not file a reply
to address any of these specific objections.
First, GOPAC claims that Fairbank improperly included in its requested attorney’s fees
amounts billed for counsel’s work related to Fairbank’s bankruptcy petition. GOPAC claims this
time related to the Fairbank bankruptcy totals $10,260.00. The Court has reviewed each of the
billing entries listed in GOPAC’s objection and compared the diary entries with the docket in this
matter. (See GOPAC Response (ECF No. 247) at 2.) After review, the Court is satisfied the
amount of time billed to work related to Fairbank’s bankruptcy petition is adequately tied to the
resolution of this case. Therefore, the Court overrules that objection.
Second, GOPAC claims that Fairbanks’ requested fees should be reduced by $21,354.77
for the time counsel expended on the MDL process, which GOPAC asserts is beyond the scope of
this action. The Court notes that the MDL petition sought to have the Jones case, along with other
related claims tied to the 2009 Northeast E.coli Outbreak, handled via MDL; however, the Panel

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ultimately denied transfer (ECF No. 36). Having reviewed the billing entries GOPAC has
associated with this objection and comparing the diary entries with the docket in this matter, the
Court is satisfied that the amount of time listed as related to the MDL process is adequately tied to
resolution of this particular case. Therefore, the Court overrules GOPAC’s MDL objection.
Third, GOPAC seeks a reduction in fees that are attributed to a records request to the North
Carolina Department of Health. The Court will GRANT this reduction in the absence of any
evidence or explanation tying this North Carolina records request to the defense of the Jones’ case.
Therefore, the bill will be reduced by $240.00 and the interest associated with the amount.1
Fourth, GOPAC asks that this Court withhold fees for amounts attributed to Fairbank’s
assertion of attorney-client privilege and associated redacted billing entries. Having reviewed each
redacted entry that GOPAC has listed in its objection in the context of the docket in this matter
and the bills in their entirety, the Court is satisfied that Fairbank has provided enough description
of the “task” with each redacted entry for the Court to determine that the time billed is reasonably
associated with activities undertaken to resolve this case.

Therefore, these objections are

overruled.
Fifth and finally, GOPAC asserts that some of the fees are unreasonable and excessive.
GOPAC provides two examples of such excessive billing related to the staffing of the deposition
of Tim Beila and the staffing on the depositions of Dr. Lee Harrison. (See GOPAC Response at
4.) Having reviewed these examples and the bills in their entirety, the Court does not agree and
overrules this objection. See Long, 2041 WL at *4 (overruling a prior objection related to multiple
counsel attending depositions). Having combed through the submitted bills, the Court ultimately

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The specific charges excluded relate to four entries of paraleagel time: (1) 1 hours on November 12, 2012; (2) 0.2
hours pm November 16, 2012; (3) 0.2 hours on November 19, 2012; and (4) 0.2 hours on November 20, 2012 See
ECF No. 246-14 at Page ID # 6667-68.

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concludes the overall number of hours worked was reasonable in light of the complexities of this
case and the multi-day jury trial.

I.

CONCLUSION
Fairbank’s Petition for Attorneys’ Fees & Costs (ECF No. 246) is GRANTED and the

Court hereby awards Fairbank fees and costs totaling $834,816.77.
In addition, Fairbank is entitled to prejudgment interest on this amount. See Long, 2014
WL at *5. When it filed the pending Petition, Fairbank calculated the prejudgment interest at
$37,369.70 as of November 2014. The Court hereby ORDERS Fairbank to submit an updated
calculation of the prejudgment interest in a format similar to its prior submission (ECF No. 246-1
at Page ID # 6506). This updated calculation shall account for the $240 deducted from the original
fee request. Fairbank’s updated calculation shall be filed within seven days of this Order. Absent
receipt of a specific objection to this updated calculation within seven days of its filing, GOPAC
will be deemed obligated to pay the prejudgment interest listed in this updated filing in addition to
the $834,816.77 awarded in fees and costs.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 14th day of April, 2015.

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