Jenkins v. University of Minnesota, The et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 325 Plaintiff's Motion for Attorneys' Fees and Costs; denying 336 Defendant's Motion for New Trial(Written Opinion) Signed by Chief Judge John R. Tunheim on 10/10/2017. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1548 (JRT/SER)
THE UNIVERSITY OF MINNESOTA and
MEMORANDUM OPINION AND
ORDER ON PLAINTIFF’S
MOTION FOR ATTORNEYS’
FEES AND COSTS AND
DEFENDANT’S MOTION FOR
Joseph A. Larson, JOSEPH A. LARSON LAW FIRM PLLC, 880 Sibley
Memorial Highway Suite 110, Mendota Heights, MN 55118, David E.
Schlesinger and Janet M. Olawsky, NICHOLS KASTER, PLLP, 80
South Eighth Street, Suite 4600, Minneapolis, MN 55402, for plaintiff.
Thomas Edward Hayes, LAW OFFICE OF THOMAS E. HAYES, 161
West Wisconsin Avenue #3032, Milwaukee, WI 53203, for defendant Ted
Plaintiff Stephanie Jenkins seeks a total of $801,545.00 in attorneys’ fees and
$18,954.73.00 in costs from Defendant Ted Swem following a favorable jury verdict on
Jenkins’s 42 U.S.C. § 1983 claim. Swem opposes the motion, arguing that the requested
fees are unreasonable and excessive. Considering all reasonableness factors, the Court
will grant in part Jenkins’s motion, awarding $305,003.21 in attorneys’ fees and
$18,954.73 in costs.
Swem also moves for a new trial, arguing that the Court erred in deciding that
Swem acted under the color of state law, rather than submitting the issue to the jury.
Because the Court finds no error in its prior decisions, it will deny Swem’s motion for a
Stephanie Jenkins filed this suit in July 2013, represented by attorney Joseph A.
Larson, 1 against Swem, the University of Minnesota (the “University”), and two
University employees. (See Compl., June 24, 2013, Docket No. 1.) Jenkins asserted
various civil rights, constitutional, and tort claims based on Swem’s sexual harassment
and the University’s alleged inaction regarding the reported harassment. (Id. ¶¶ 117-89.)
Swem, an employee of the U.S. Fish and Wildlife Service (“USFWS”), worked alone
with Jenkins performing research in Northern Alaska when the advances were made. (Id.
¶¶ 21-22, 27, 32, 56.) The Court dismissed the claims against the University employees
relatively early in litigation, leaving only the University and Swem as defendants. (Order
for Dismissal with Prejudice, Jan. 24, 2014, Docket No. 85 (dismissing claims against
Patricia Kennedy with prejudice)); Jenkins v. Univ. of Minn., 131 F. Supp. 3d 860, 887
(D. Minn. 2015) (granting summary judgment on claims against David Andersen).
After the Court denied Swem’s motion for summary judgment on Jenkins’s hostile
work environment claim (Count VI), Swem filed an interlocutory appeal. (Notice of
Interlocutory Appeal, Oct. 6, 2015, Docket No. 207.)
At that time, Jenkins hired
additional counsel – David E. Schlesinger and Janet M. Olawsky – with “appellate and
Larson is a solo practitioner at the Joseph A. Larson Law Firm. (Aff. of Joseph A.
Larson (“Larson Aff.”) ¶ 1, Apr. 11, 2017, Docket No. 327.)
trial expertise.” 2 (Aff. of Joseph A. Larson (“Larson Aff.”) ¶ 10, Apr. 11, 2017, Docket
No. 327.) The Eighth Circuit affirmed the Court’s decision and held Swem was not
entitled to qualified immunity. Jenkins v. Univ. of Minn., 838 F.3d 938, 947-48 (8th Cir.
In total, four counts remained at trial:
hostile work environment against the
University (Count V); hostile work environment against Swem (Count VI); intentional
infliction of emotional distress against Swem (Count VII); and assault against Swem
(Count IX). The Court dismissed Count IX at the close of trial. Then, the jury returned a
verdict in favor of Jenkins on Count VI against Swem, but found in favor of Swem and
the University on the remaining counts. (Special Verdict at 1-2, Mar. 17, 2017, Docket
No. 316.) The jury awarded Jenkins $1.00 in damages. (Id. at 2.)
On April 11, 2017, Jenkins moved for attorneys’ fees and costs pursuant to 42
U.S.C § 1983 and Rule 54(d)(1) and 54(d)(2) of the Federal Rules of Civil Procedure.
Jenkins requests $570,617.50 3 in fees for Larson, $230,927.50 in fees for Schlesinger and
Olawsky, and $18,914.73 in costs.
(Larson Aff., Ex. 1 at 26; Aff. of David E.
Schlesinger, Ex. 1 at 12, Apr. 11, 2017, Docket No. 328; Bill of Costs at 1, Apr. 11,
2017, Docket No. 332.) On April 25, 2017, Swem moved for a new trial as to liability
Schlesinger and Olawsky are attorneys at Nichols Kaster, PLLP. (Aff. of David E.
Schlesinger ¶¶ 1-2, Apr. 11, 2017, Docket No. 328.)
While Larson states that he seeks reimbursement for 1200 hours, for a total of
$570,000.00, the itemized list relied upon appears to include 1201.3 hours, for a total of
$570,617.50 and thus, the Court will use that figure. (See Larson Aff., Ex. 1.)
MOTION FOR ATTORNEYS’ FEES AND COSTS
Jenkins’s Entitlement to Attorneys’ Fees
Under 42 U.S.C § 1988, a prevailing party in a § 1983 action may seek attorneys’
fees and costs in order to provide “‘effective access to the judicial process’ for persons
with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting
H.R. Rep. No. 94-1558, at 1 (1976)). “[A] plaintiff ‘prevails’ when actual relief on the
merits of his [or her] claim materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar
v. Hobby, 506 U.S. 103, 111-12 (1992). “[A] plaintiff who wins nominal damages is a
prevailing party under § 1988.” Id. at 112.
While Swem does not specifically contest that Jenkins was a prevailing party,
Swem argues that Jenkins’s victory was technical and that any attorneys’ fees awarded
would be unreasonable. To support his argument, Swem cites Milton v. Des Moines, 47
F.3d 944, 945 (8th Cir. 1995). In Milton, the Eighth Circuit found no abuse of discretion
where a district court denied a plaintiff’s motion for attorneys’ fees following a nominal
damages award. Id. at 945-47. The Eighth Circuit explained that “[w]hen a plaintiff
recovers only nominal damages because of his failure to prove an essential element of his
claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. at 945
(quoting Farrar, 506 U.S. at 115). But the court also noted that this principle is not
absolute, and “the technical nature of a nominal damages award . . . goes to the
reasonableness of the fee award . . . [and] the most critical factor in determining the
reasonableness of a fee award is the degree of success obtained.” Id. at 946 (alteration in
original) (quoting Farrar, 506 U.S. at 114).
Here, the Court finds that Jenkins’s victory is not merely technical because it
fundamentally changed the relationship between Jenkins and Swem.
maintained, and the presumption throughout litigation is, that Swem’s conduct was not
impermissible under § 1983. However, the jury’s verdict in this case confirms that
Swem’s conduct was illegal, which changes the relationship between the parties.
Preventing sexual harassment to enable broad participation of all genders in the
workforce is an important public goal. See City of Riverside v. Rivera, 477 U.S. 561, 579
(1986) (“Regardless of the form of relief he [or she] actually obtains, a successful civil
rights plaintiff often secures important social benefits that are not reflected in nominal or
relatively small damages awards.”).
The jury’s judgment that Swem engaged in
impermissible conduct is neither technical nor de minimis. Accordingly, although the
Court will consider the degree of success in determining the reasonableness of the
attorneys’ fees, the Court rejects Swem’s argument that Jenkins’s victory was only
technical or de minimis and did not entitle her to attorneys’ fees in any amount.
The district court has “broad discretion” in awarding attorneys’ fees. Hanig v.
Lee, 415 F.3d 822, 825 (8th Cir. 2005). “The starting point in determining attorney fees is
the lodestar, which is calculated by multiplying the number of hours reasonably expended
by the reasonable hourly rates.” Id. (quoting Fish v. St. Cloud State Univ., 295 F.3d 849,
851 (8th Cir. 2002)). In determining the number of hours reasonably expended, “[t]he
district court may attempt to identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success.” Hensley, 461 U.S. at 43637.
Reasonableness of the award depends on twelve primary factors laid out in the
legislative history. 4 Id. at 430 n.3. However, “the most critical factor is the degree of
success obtained.” Id. at 436. Accordingly, “the hours spent on the unsuccessful claim
should be excluded in considering the amount of a reasonable fee.” Id. at 440. That said,
plaintiffs are not precluded from seeking compensation for fees attributable to both
successful claims and unsuccessful claims, instead the court asks whether “but for” the
fees the success would have been possible. Fox v. Vice, 563 U.S. 826, 838-40 (2011)
(remanding to determine if incurred expenses would be necessary for both frivolous
federal claims and non-frivolous state claims).
Here, Swem does not specifically challenge the hourly rates that any attorney
assessed or the application of the hourly rates in this case, and the Court finds the hourly
These factors include:
(1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee;
(6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n.3.
there is no per se rule that only one attorney should try a simple § 1983 claim or only one
attorney should be compensated pursuant to § 1988, the proper question is whether the
application is reasonable, eliminating inefficiencies or duplications that might arise from
use of more than one attorney.”). Beyond that, employing more than one attorney on a
contingency basis to provide greater expertise in civil rights litigation, especially on
appeal and at trial, is reasonable and even desirable. A.J., 56 F.3d at 863-64.
There is, however, some duplication of effort when additional attorneys are
brought into a case, and those fees should be reduced. Id. While it is not unreasonable
for two attorneys to discuss a case, bringing new attorneys into a case, as here, requires
the new attorneys to familiarize themselves with the case, which can be time consuming.
The Court will therefore reduce Larson’s total fee award by 20 percent after Schlesinger
and Olawsky joined the litigation, finding that roughly 20 percent of his time was
duplicated and dedicated to conferences with co-counsel that were not independently
necessary for success on Count VI.
The Court will also reduce Schlesinger and
Olawsky’s fees by 30 percent, finding that roughly 30 percent of their work was
duplicative of work already performed by Larson and not independently necessary for
success on Count VI. All later fee totals discussed will include these reductions.
Swem contends that Larson improperly assessed approximately one-half of the
early-litigation fees against him when the fees should have been distributed evenly
among all of the defendants asserted in the Complaint. The Court, however, finds that
attributing approximately one-half of the early-litigation fees to Swem was reasonable.
Many of the activities undertaken prior to filing the complaint were necessary for
Jenkins’s victory on Count VI, including gathering factual information, conducting
research, and drafting the complaint. Jenkins is not barred from seeking compensation
for the entirety of the fee when an attorney’s time serves a dual purpose on a successful
and unsuccessful claim. Fox, 563 U.S. at 840-41.
Beyond that, Swem’s actions toward Jenkins formed the foundation of the
complaint and, therefore, necessitated a large portion of the fees amassed during research,
discovery, and ongoing litigation. Necessarily, Jenkins spent most of the prehearing and
pretrial preparation building a case against Swem because, without winning Count VI,
success on the other counts would have been nearly impossible. While preparation costs,
such as discussing the case with the client, preparing for depositions, and phone
conferencing with a therapist helped to build the case against the other defendants, these
fees were necessary to prevail at trial on the successful claim.
That said, Jenkins did not achieve a great success during litigation, and the earlylitigation fees should be reduced to reflect the outcome at trial. Hensley, 461 U.S. at 430.
Here, the Court will reduce early-litigation fees to one-third of the requested value,
considering the limited nature of Jenkins’s success. This brings the early-litigation fees
to $72,490.61 for Larson and $1,258.95 for Schlesinger and Olawsky.
The Court finds all attorneys’ fees associated with Swem’s appeal were necessary
for Jenkins to prevail on Count VI and reasonable given the victory obtained on
interlocutory appeal. Moreover, because Swem was the only party appealing, all fees
related to the appeal are attributable to Swem and not to any other defendant. Therefore,
after accounting for duplication in effort, the Court will assess 100 percent of the fees
associated with the appeal against Swem, resulting in $61,807.00 in fees for Larson and
$13,777.75 in fees for Schlesinger and Olawsky.
Responses to Swem’s Motions
Swem engaged in significant motion practice, some of which was excessive,
throughout the pretrial period, increasing the length and cost of litigation. Swem filed
numerous motions, some of which were duplicative, as well as extensions for time to
respond. 5 Each contested motion and hearing during litigation led to Jenkin’s ultimate
victory, and thus each is, in part, necessary for success. Therefore, the Court will award
100 percent of the attorneys’ fees associated with Swem’s motion practice, resulting in
$42,598.00 to Larson and $3,622.50 to Schlesinger and Olawsky.
(See, e.g., Mot. to Substitute the U.S. as a Def., Nov. 1, 2013, Docket No. 43; Mot. to
Dismiss, Nov. 1, 2013, Docket No. 48; Mot. to Dismiss Count VI, Jan. 15, 2014, Docket No. 78;
Mot. to Stay Disc., Mar. 19, 2014, Docket No. 91; Mot. for Review of Magistrate Judge Order
Den. Def.’s Mot. to Stay Disc., Apr. 14, 2014, Docket No. 101; Mot. for Summ. J., Dec 1, 2014,
Docket No. 137; Am. Mot. for Summ. J., Mar. 27, 2015, Docket No. 185.)
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Trial & Pretrial Settlement Negotiations
Swem argues that the Court should reduce Jenkins’s fees related to trial and
pretrial settlement negotiations because they were unreasonable and related to both the
University and Swem. At the pretrial settlement conference and at trial, four claims
remained against the University and Swem. The parties discussed many of the same
topics in relation to claims against both the University and Swem. It is impossible to
know the exact amount of time and expense Jenkins spent in relation to Count VI, as the
claims were intertwined and often indistinguishable.
Furthermore, the settlement
negotiations involved both the University and Swem and the parties failed to reach an
acceptable settlement. The Court estimates that roughly 20 percent of the time at trial
and during the settlement process related specifically to Count VI.
approximates that Jenkins spent an additional 60 percent of the time at trial and during
the settlement process devoted to evidence and fact finding necessary for all claims,
including Count VI. Thus, in total, approximately 80 percent of pretrial settlement and
trial fees are attributable to Swem. Given that Jenkins failed to prove damages regarding
her claim, the Court will only award 40 percent of all settlement, trial preparation, and
trial fees against Swem. The Court, therefore, awards $54,723.80 to Larson and
$54,724.60 to Schlesinger and Olawsky for trial and settlement fees.
Unclear or Unnecessary Activities
Based exclusively on the attorney log descriptions, ascertaining the exact nature of
work performed is difficult. A fee should not be assessed against Swem if it cannot be
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determined that it was necessary for Jenkins to prevail at trial. Swem objects to a number
of specific entries, and while Swem does not make explicit arguments for why each entry
listed should be excluded, the Court is responsible for awarding “reasonable” attorneys’
fees necessary to prevail on the successful claims. See 42 U.S.C. § 1988(b). The Court
has reviewed Jenkins’s request and will not asses certain fees, 6 totaling $10,877.50,
against Swem because they were unclear, unreasonable, or unnecessary to the successful
Including the following fee entries:
12/8/2014 – “Review emails from A. Voss and T. Hayes re: request for extension of
time to answer six motions for summary judgment.” (Larson Aff., Ex. 1 at 10.)
3/6/2015 – “Review Order from Court re: T. Swem's motion for additional lines (.2);
review and respond to email from A. Voss re: extension for time to file reply brief
(.2).” (Id. at 12.)
4/9/2015 – “Prepare for phone hearing with Judge Tunheim and opposing counsel re:
T. Swem's request for additional lines.” (Id. at 13.)
4/10/2015 – “Phone hearing with Judge Tunheim re: Swem's request for additional
lines (.5); review email correspondence from A. Voss re: hearing (.2); begin drafting
memorandum in opposition to T. Swem's Motion for Summary Judgment on tort
claims (2.0).” (Id.)
4/11/2015 – “Conduct research and continue drafting memorandum in opposition to
T. Swem's Motion for Summary Judgment on tort claims.” (Id.)
4/12/2015 – “Conduct research and continue drafting memorandum in opposition to
T. Swem's Motion for Summary Judgment on tort claims.” (Id.)
4/13/2015 – “Finalize Plaintiff's responsive memoranda to T. Swem's Motion for
Summary Judgment on tort claims; draft accompanying documents; revise the same;
file the same with the Court.” (Id.)
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In sum, the Court will award $231,619.41 in fees to Larson and $73,383.80 in fees
to Nichols Kaster, for a total of $305,003.21.
REQUEST FOR COSTS
Under Fed. R. Civ. P. 54(d)(1), the Court should tax costs in favor of a prevailing
party. 7 Congress listed the expenses that may be taxed in 28 U.S.C. § 1920. Little Rock
Cardiology Clinic PA v. Baptist Health, 591 F.3d 591, 601 (8th Cir. 2009).
Under § 1920, a judge or court clerk “may tax as costs” fees of the clerk
and marshal, fees for printed or electronically recorded transcripts
necessarily obtained for use in the case, fees and disbursements for printing
and witnesses, fees for copies of necessary papers, docket fees, and
compensation of court appointed experts and interpreters.
Stanley v. Cottrell, Inc., 784 F.3d 454, 464 (8th Cir. 2015) (citing § 1920). The Court
“has substantial discretion in awarding costs to a prevailing party under” Rule 54(d) and
§ 1920. Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 363 (8th Cir. 1997) (quoting
Richmond v. Southwire Co., 980 F.2d 518, 520 (8th Cir. 1992)).
Swem challenges Jenkins’s request for costs related to depositions, arguing
Jenkins took the depositions to support the unsuccessful claims. For the same reasons
discussed above, there is substantial overlap in Jenkins’s claims, and the Court finds the
relevant depositions were necessary for Jenkins’s success on the Count VI. Swem also
The analysis for attorneys’ fees and costs is the same with regard to the prevailing party
analysis. See Coleman v. Turner, 838 F.2d 1004, 1005 (8th Cir. 1988) (“It has long been the law
that the district court has the power to award costs to successful parties even where the parties
prevail only to the extent of nominal damages.” (citations omitted)). Thus, the Court rejects
Swem’s argument that the Court should not award costs based on Jenkins’s limited success for
the same reasons discussed above.
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argues that the depositions costs are unwarranted because some depositions, or portions
of depositions, were not used at trial. However, “[e]ven if a deposition is not introduced
at trial, a district court has discretion to award costs if the deposition was ‘necessarily
obtained for use in [the] case’ and was not ‘purely investigative.’” Smith v. Tenet
Healthsystem SL, Inc., 436 F.3d 879, 889 (8th Cir. 2006) (quoting Zotos, 121 F.3d at 363).
The Court finds that the deposition costs assessed against Swem were used in the case
and therefore the Court taxes all deposition costs against Swem.
Swem lacks other specific objections to Jenkins’s requested costs. Upon review,
the Court finds the costs reasonable and recoverable under § 1920, 28 U.S.C. § 1821, or
as attorneys’ fees under § 1988. See Jenkins v. Kansas City Mo. Sch. Dist., 525 F.3d 682,
682 n.1 (1996) (per curiam) (noting that “travel expenses and other out-of-pocket
expenses that a law firm normally would bill to its client are more properly characterized
as part of an attorney fee award” under § 1988); Bricklayers & Allied Craftworkers v.
ARB Constr., Inc., No. 13-3883, 2016 WL 4943254, at *10 (E.D. Pa. Sept. 15, 2016)
(discussing costs under § 1988). Therefore, all requested costs, totaling $18,914.73, will
be assessed against Swem. (Bill of Costs at 1.)
MOTION FOR NEW TRIAL
Swem moves for a new trial on liability under Rules 50(b) and 59 of the Federal
Rules of Civil Procedure. (Reply Br. in Supp. of Swem’s Post-Verdict Mot. at 1, May
29, 2017, Docket No. 346.) Rule 59(a)(1)(A) provides: “[t]he court may, on motion,
grant a new trial on all or some of the issues . . . after a jury trial, for any reason for which
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a new trial has heretofore been granted in an action at law in federal court.” A new trial
is appropriate when, because of legal errors, the first trial “resulted in a miscarriage of
justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996). “The authority to grant a
new trial is within the [Court’s] discretion.” Id.
Swem argues that the Court erred in declining to submit to the jury the question of
whether he was acting under color of state law. In support, Swem reiterates the argument
he made and the Court rejected at various points during this case. At summary judgment,
the Court found that Swem was acting under color of state law because “Swem was only
able to allegedly harass Jenkins because of the collaboration between the USFWS and the
University” and “Swem’s actions took place while he was cloaked with authority
provided to him by the University . . . as a mentor and supervisor for Jenkins.” Jenkins,
131 F. Supp. 3d at 875. Swem raised the same argument in opposing Jenkins’s motion in
limine seeking to preclude Swem from arguing that he was not acting under color of state
law. (See Response to Pl.’s Mot. in Limine – Color of State Law, Feb. 26, 2017, Docket
No. 264.) The Court granted Jenkins’s motion in limine on the issue, relying on its
decision at summary judgment. (Min. Entry, Mar. 3, 2017, Docket No. 275.) Finally,
Swem made the same argument in his Request for Permission to File Reconsideration
Request regarding the Court’s decision on the motion in limine. (Req. for Permission to
File Recons. Req., Mar. 8, 2017, Docket No. 277.) The Court denied Swem’s request,
finding Swem raised no new argument or facts and did not alter the Court’s initial
conclusion on the issue. (Order at 2, Mar. 13, 2017, Docket No. 290.)
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Swem still provides no new evidence, arguments, or law calling into question the
Court’s reasoning or suggesting that the Court’s decision was erroneous. Moreover, the
Court properly decided this issue as a matter of law rather than submitting it to the jury.
See 8th Cir. Civil Jury Instr. 4.20 comment (“The court should, if possible, rule on the
record whether the conduct of the defendant, if it occurred as claimed by the plaintiff,
constitutes acting under color of state (county, municipal) law and should not instruct the
jury on this issue.”); Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003)
(“Although ‘it is possible to determine . . . whether a person acted under color of state
law as a matter of law, there may remain in some instances unanswered questions of fact
regarding the proper characterization of the actions for the jury to decide.’” (alteration in
original) (quoting Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980)). Accordingly, the
Court finds no miscarriage of justice warranting a new trial, and the Court will deny
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
Jenkins’s Motion for Attorneys’ Fees and Costs [Docket No. 325] is
GRANTED in part and DENIED in part. Defendant Ted Swem is ordered to pay
attorneys’ fees and costs in the following amounts:
$231,619.41 to the Joseph A. Larson Law Firm PLLC,
$73,383.80 to Nichols Kaster PLLP,
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$18,914.73 in costs as submitted to the court.
The Court directs the Clerk’s Office to enter JUDGMENT accordingly.
Swem’s Motion for New Trial [Docket No. 336] is DENIED.
DATED: October 10, 2017
at Minneapolis, Minnesota.
___________s/John R. Tunheim________
JOHN R. TUNHEIM
United States District Court
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