Lakeside Roofing Company et al v. Nixon et al

Filing 101

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Alter or Amend Judgment (ECF No.96) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Plaintiffs Motion to Alter or Amend Judgment (ECFNo. 96) is GRANTED to the extent that the Court will order Defendants to pay attorneys fees in the amount of $72,021.20. Plaintiffs motion is DENIED in all other respects. 96 Signed by District Judge Jean C. Hamilton on 1/7/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LAKESIDE ROOFING COMPANY, et al.,
Plaintiff(s),
vs.
JEREMIAH W. NIXON, et al.,
Defendant(s).

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Case No. 4:10CV1761 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Alter or Amend Judgment, filed on
July 7, 2012. (“Motion to Amend,” ECF No. 96). This motion is fully briefed and ready for
disposition.
BACKGROUND
On July 7, 2012, this Court entered a Memorandum and Order denying Plaintiffs’ Motion for
Attorneys’ Fees but taxing costs against Defendants in the amount of $524.84. (ECF No. 95). The
Court determined that Plaintiffs presented insufficient evidence of the amount of hours worked and
the hourly rate charged by Plaintiffs’ attorneys to warrant an award of attorneys’ fees in this matter.
The Court advised Plaintiffs that additional records would be evaluated by the Court if Plaintiffs
requested that the Court reconsider its decision.
As noted above, on July 7, 2012, Plaintiffs filed their Motion to Amend. In their Motion to
Amend, Plaintiffs state they provided sufficient evidence for determining the reasonableness of the
hours worked and the hourly rate charged by Plaintiffs’ attorneys. Plaintiffs also assert that since
Defendants did not object to the reasonableness of the number of hours worked by Plaintiffs’

attorneys, the reasonableness of such hours “is not at issue for purposes of Plaintiffs’ claim for
attorneys’ fees.” (Motion to Amend, ¶ 11).
In support of their Motion to Amend, Plaintiffs provide a Second Supplemental Affidavit of
Michel E. Wilson (“Second Affidavit,” ECF No. 98) and two additional exhibits of business records
from Greensfelder, Hemker & Gale, P.C. (See Exhibit 1, ECF No. 98-2, and Exhibit 2, ECF No. 983). Attorney Wilson’s Second Affidavit explains the additional business records, which are a history
prepared by a document management system that identifies the initials of firm employees who create
or edit firm documents, the date such employees perform any action pertaining to firm documents,
and the time of the start and the close of such actions. These business records show the activity of
twelve firm employees on forty-six documents prepared for this case.
According to Plaintiffs, these business records are offered to show “who prepared or edited
a document and when and for how long that activity took place.” (Second Affidavit, ¶ 8). Attorney
Wilson notes in his Second Affidavit, however, that “there is some restraint on the value of this
information,” as activities unrelated to the editing of a document may be performed while the
document is open on a firm employee’s computer. (Id.). Additionally, Attorney Wilson’s Second
Affidavit also notes that while “[t]he total typing time generated automatically by the document
management system is also useful information,” the total typing time “is often less than the time
expended in the preparation of the brief or memorandum, including contemporaneously performed
legal research.” (Id., ¶ 9).
DISCUSSION
As an initial matter, the Court rejects Plaintiffs’ assertion that it may not evaluate the
reasonableness of the number of hours worked by Plaintiffs’ attorneys as Defendants failed to object
to the fees sought by Plaintiffs on the grounds that the number of hours worked was generally

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unreasonable. The Court also rejects the implication that the denial of Plaintiffs’ original Motion for
Attorneys’ fees was improper since Defendants “never sought a complete denial of Plaintiffs’ motion
for attorneys’ fees.” (See Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion to Alter or Amend
Judgment (“Memo in Support”), ECF No. 94, p. 12). “[T]he fee applicant bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly
rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court previously found Plaintiffs did
not meet their burden of establishing entitlement to the fee award they sought in their original Motion
for Attorneys’ Fees, and Plaintiffs have not presented additional evidence to cause the Court to
disagree with its previous decision.
Plaintiffs’ Motion to Amend asserts Attorney Wilson expended 310.9 hours on this case,
Attorney Jeffrey Wax expended 82.9 hours on this case, and Paralegal Jennifer Hollenkamp expended
5 hours on this case. (Memo in Support, p. 9). This includes 17.6 hours of legal work performed
by Attorney Wilson prior to July 19, 2010, which primarily consisted of legal research and drafting
of the original complaint for which Plaintiffs were never billed. (Id., p. 10; Memorandum and Order
dated June 7, 2012, ECF No. 95, p. 6 n.4). Plaintiffs request hourly rates of $460.001 for Attorney
Wilson, $200.00 for Attorney Wax, and $160.40 for Paralegal Hollenkamp. (Memo in Support, pp.
7, 9, 11).
Plaintiffs’ additional evidence has not corrected the deficiencies in their original Motion for
Attorneys’ Fees with regards to adequately documenting the number of hours worked. First,
Plaintiffs have not provided sufficient additional information for the Court to break down Plaintiffs’

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Plaintiffs initially sought hourly rates of $425.00 - $460.00 for Attorney Wilson, whose
hourly rate increased over the course of this litigation. Now, however, Plaintiffs seek an hourly
rate of $460.00 for all work performed by Attorney Wilson, regardless of the rate actually
charged by Attorney Wilson at the time such work was performed.
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block-billing entries into individual entries with separate time allotments for each task performed.
While Exhibits 1 and 2 to the Motion to Amend provide some information concerning the amount
of time spent drafting and editing Plaintiffs’ pleadings and motions, this information applies only to
the documents Plaintiffs prepared for filing with the Court. Plaintiffs also acknowledge that the time
entries contained in Exhibits 1 and 2 do not accurately depict the amount of time actually spent
drafting and editing the documents. Second, Plaintiffs have not provided sufficient additional
information for the Court to attribute the time spent on a billed task to a particular claim. Plaintiffs
acknowledge they did not prevail on all their claims against Defendants, but the Court is unable to
discern the amount of time Plaintiffs’ attorneys devoted to Plaintiffs’ unsuccessful claims. Finally,
the Court finds that the nearly 400 hours of attorney and paralegal time that Plaintiffs seek to recover
are extraordinary in light of the fact that this case was decided on summary judgment after minimal
discovery. See Dorr v. Weber, 741 F.Supp.2d 1022, 1034 (N.D. Iowa 2010) (finding over 500 hours
of attorney and paralegal time “extraordinary in light of the six-hour case that was tried”).
Additionally, Plaintiffs’ supplemental evidence has not corrected the deficiencies in their
original Motion for Attorneys’ Fees with regards to supporting adequately the hourly rate charged
by Plaintiffs’ attorneys. Plaintiffs still have presented no evidence that the fees charged by Plaintiffs’
attorneys are the ordinary rates for similar work in this community.
When the court cannot determine the appropriate fee from the record, it must exercise its
discretion in reducing the fee award. See Hensley, 461 U.S. at 433, 437. “Incomplete or imprecise
billing records preclude any meaningful review by the district court of the fee application for
‘excessive, redundant, or otherwise unnecessary’ hours and may make it impossible to attribute a
particular attorney’s specific time to a distinct issue or claim.” H.G. Inc. v. Flygt Corp., 925 F.2d
257, 260 (8th Cir. 1991). As this Court previously noted, other district courts have reduced fee

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requests by a certain percentage where the prevailing party presents block-billing entries that prevent
the court from evaluating the reasonableness of the time spent on individual tasks. See, e.g., Dorr,
741 F.Supp.2d at 1036-37 (reducing fee request by ten percent); Ideal Instruments, Inc. v. Rivard
Instruments, Inc., 245 F.R.D. 381, 390 (N.D. Iowa 2007) (reducing fee request by twenty percent);
Gay v. Saline County, No. 4:03CV00564, 2006 WL 3392443, at *3 (E.D. Ark. Oct. 20, 2006)
(reducing fee request by ten percent); Macgregor v. Mallinckrodt, Inc., No. 01-828, 2003 WL
23335194, at *13 (D. Minn. July 21, 2003) (reducing fee request by fifteen percent); see also Lawson
v. Deboer Transportation, Inc., No. 4:09CV250, 2009 WL 4801927 (E.D. Mo. Dec. 9, 2009).
Additionally, “[t]he trial judge should weigh the hours claimed against his [or her] own knowledge,
experience, and expertise of the time required to complete similar activities.” Gilbert v. City of Little
Rock, Ark., 867 F.2d 1063, 1066 (8th Cir. 1989).
The Court will therefore reduce the total number of hours spent on this case by twenty
percent for Plaintiffs’ failure to provide precise billing records. Since the Court finds Plaintiffs
submitted an amount of total hours that is excessive and redundant, the Court also will reduce the
total number of hours spent on this case by an additional twenty percent. Thus, the Court finds that
the appropriate number of total hours spent on this case is as follows: 176.0 hours for Attorney
Wilson, 49.7 hours for Attorney Wax, and 3 hours for Paralegal Hollenkamp.2
The Court will also reduce the hourly rates requested. As noted above, Plaintiffs request
hourly rates of $460.00 for Attorney Wilson, $200.00 for Attorney Wax, and $160.40 for Paralegal
Hollenkamp. “As a general rule, a reasonable hourly rate is the prevailing market rate, that is, ‘the
ordinary rate for similar work in the community where the case has been litigated.’” Moysis v. DTG

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The Court did not include the 17.6 hours of legal work performed by Attorney Wilson
prior to July 19, 2010, as the Court finds it inappropriate to award attorneys’ fees for work that
Plaintiffs were not billed for.
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Datanet, 278 F.3d 819, 828-29 (8th Cir. 2002). The Court finds that the rates charged by Attorney
Wax and Paralegal Hollenkamp are appropriate but that the rate charged by Attorney Wilson is
excessive. According to the Billing Rates 2012 Special Section to Missouri Lawyers Weekly, dated
August 6, 2012, Attorney Wilson’s hourly billing rate of $460.00 would place him third on the list
of “Top St. Louis Rates” for 2012 and would make his hourly billing rate the highest at his firm. The
Court will reduce Attorney Wilson’s hourly billing rate to $350.00.
Therefore, the Court will order a total fee award of $72,021.20. This represents 176.0 hours
for Attorney Wilson at an hourly rate of $350.00, 49.7 hours for Attorney Wax at an hourly rate of
$200.00, and 3 hours for Paralegal Hollenkamp at an hourly rate of $160.40.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Alter or Amend Judgment (ECF No.
96) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Alter or Amend Judgment (ECF
No. 96) is GRANTED to the extent that the Court will order Defendants to pay attorneys’ fees in
the amount of $72,021.20. Plaintiffs’ motion is DENIED in all other respects.

Dated this 7th day of January, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE