Hogan Logistics, Inc. v. Davis Transfer Company,Inc.

Filing 166

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiff Hogan Logistics, Inc.'s Bill of Costs is GRANTED to the extent that costs will be taxed in its favor in the amount of Four Thousand Nine Hundred Twelve Dollars and Sixty-Se ven Cents ($4,912.67). [Doc. 148] IT IS FURTHER ORDERED that the Clerk of the Court shall tax costs against defendant Davis Transfer Company, Inc. in the amount of Four Thousand Nine Hundred Twelve Dollars and Sixty-Seven Cents ($ 4,912.67). IT IS FURTHER ORDERED that plaintiff Hogan Logistics, Inc.'s Motion for Attorney's Fees is GRANTED to the extent that Hogan is entitled to judgment against defendant Davis Transfer Company, Inc. for contractual attorney 's fees in the amount of Two Hundred Forty-Nine Thousand Four Hundred Sixty-Two Dollars and Forty-Three Cents ($249,462.43), and contractual expenses in the amount of Five Thousand Five Hundred Thirteen Dollars and Twenty-Eight Cents ($5,513.28). [Doc. 144] IT IS FINALLY ORDERED that the Court will enter an Amended Judgment in accordance with this Memorandum and Order. Signed by District Judge Charles A. Shaw on 7/19/2018. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HOGAN LOGISTICS, INC.,
Plaintiff,
v.
DAVIS TRANSFER COMPANY, INC.,
Defendant.

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No. 4:16-CV-1541 CAS

MEMORANDUM AND ORDER
This closed diversity matter is before the Court on plaintiff Hogan Logistics, Inc.’s
(“Hogan”) Bill of Costs and Motion for Attorney’s Fees, and defendant Davis Transfer Company,
Inc.’s (“Davis”) objections thereto. Both matters are fully briefed and ready for decision. For the
following reasons, the Court will order costs taxed in favor of plaintiff and grant the motion for
attorney’s fees as set forth below.
I. Background
This was an action for breach of contract. Plaintiff Hogan originally filed suit against Davis
in state court, asserting a claim for breach of contract arising from a 2013 Broker-Carrier Agreement
(the “Agreement”) entered into between the parties. Davis removed the case to this Court based on
diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a). The Court denied Davis’s
motion for judgment on the pleadings, finding in pertinent part that the disputed term “traffic” as
contained in the Agreement’s Traffic Solicitation Clause was ambiguous as a matter of law, as each
party offered plausible interpretations of its meaning. Mem. and Order of Apr. 27, 2017 (Doc. 32
at 6) (J. Jackson). Hogan filed an Amended Complaint that added claims for breach of the implied

duty of good faith and fair dealing and tortious interference (Doc. 39), but later dismissed those
claims leaving only the breach of contract claim in Count I (Doc. 75).
The Court denied defendant Davis’s motion for summary judgment, concluding that the
disputed Traffic Solicitation Clause was ambiguous, and therefore under Missouri law the parties’
intent as to the meaning of the contract was a genuine issue of fact to be determined at trial. Mem.
and Order of January 9, 2018 (Doc. 89 at 12-14).
Hogan’s breach of contract claim was tried before a jury on February 26, 2018 through
February 28, 2018, when the jury returned its verdict in favor of plaintiff Hogan in the amount of
$48,846.67 (Doc. 140). The Court entered Judgment in favor of Hogan accordingly and awarded
Hogan its costs (Doc. 141).
II. Plaintiff Hogan’s Bill of Costs
Hogan filed a Bill of Costs seeking the recovery of its taxable costs as a prevailing party.
Hogan seeks total costs of $6,021.67, as follows:
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Fees of the clerk
$ 104.40
Fees for service of summons and subpoena
435.00
Fees for transcripts
5,242.27
Fees for witnesses
40.00
Other costs (meeting room fee)
200.00
TOTAL
$ 6,021.67

A. Legal Standard
Hogan’s request for its costs expended is governed by Rule 54(d) of the Federal Rules of
Civil Procedure and 28 U.S.C. § 1920. The Court must carefully scrutinize the claimed costs and
the support offered for them. Farmer v. Arabian American Oil Co., 379 U.S. 227, 232-33, 235
(1964); Alexander v. National Farmers Org., 696 F.2d 1210, 1212 (8th Cir. 1982). “The party
seeking to recover costs must fully establish the amount of compensable costs and expenses to which

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it is entitled.” ABT Sys., LLC v. Emerson Elec. Co., 2016 WL 5470198, at * (E.D. Mo. Sept. 29,
2016) (cited case omitted). The taxation of costs under Rule 54(d) is permissive, but in the Eighth
Circuit there is a strong presumption the prevailing party is entitled to an award of costs. Thompson
v. Wal Mart Stores, Inc., 472 F.3d 515, 517 (8th Cir. 2006). “As the losing party, [Davis] bears the
burden of overcoming the presumption that [Hogan] is entitled to recover all costs allowed by
§ 1920.” Stanley v. Cottrell, Inc., 784 F.3d 454, 464 (8th Cir. 2015).
Allowable costs in most cases are limited to the categories set forth in 28 U.S.C. § 1920, and
expenses not on the statutory list must be borne by the party incurring them. Crawford Fitting Co.
v. J.T. Gibbons, Inc., 482 U.S. 437 (1987); Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir.
2002). Taxable costs under § 1920 include: (1) fees of the clerk and marshal; (2) fees for printed
or electronically recorded transcripts necessarily obtained for use in the case; (3) fees and
disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies
of any materials where the copies are necessarily obtained for use in the case; (5) docket fees under
28 U.S.C. § 1923; and (6) compensation of court appointed experts and interpreters under 28 U.S.C.
§ 1828. The Court will address each category of Hogan’s claimed costs.
B. Discussion
1. Fees of the Clerk
Under 28 U.S.C. § 1920(1), Hogan seeks to recover Clerk’s fees of $104.40 for the filing fee
it paid when it filed this action in state court. The Eighth Circuit Court of Appeals has held,
however, that “Section 1920 does not authorize the taxing of state court filing fees . . . in removal
actions[.]” Pershern v. Fiatallis N. Am., Inc., 834 F.2d 136, 140 (8th Cir. 1987). The Court is of
course bound by this precedent and therefore will not tax this item of cost, but will address below

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whether Hogan can recover the state court filing fee pursuant to the attorneys’ fees provision in the
parties’ Agreement.
2. Fees for Service of Summons and Subpoena
Hogan seeks reimbursement of private process server fees for issuance of summons and
subpoenas in the amount of $435.00 under 28 U.S.C. § 1920(1). The Eighth Circuit has held that
§ 1920 contains no provision for use of a private process server and only allows taxation of service
fees by the United States Marshal. See Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985). The
Court is bound to follow this precedent. See Marez v. Saint-Gobain Containers, Inc., 2011 WL
1930706, at *15 (E.D. Mo. May 18, 2011); see also Bunda v. Potter, 2006 WL 2665134, at **3-6
(N.D. Iowa Jan. 31, 2006) (discussing Crues in depth; concluding that “while other courts have
permitted the recovery of special process fees, this court is compelled to follow Eighth Circuit
precedent regardless of the equities at play in the facts of this case.”). The Court will not tax the
private process server fees as a cost but will address below whether Hogan can recover these fees
pursuant to the attorneys’ fees provision in the parties’ Agreement.
3. Fees for Transcripts Necessarily Obtained for Use in the Case
Hogan seeks reimbursement of $5,242.27 for court reporter/transcript fees for seven
depositions. Davis objects to (a) a $369.60 charge invoiced August 15, 2017, for an expedited rough
ASCII copy of Benjamin Strickler’s deposition; (b) charges of $275.00 and $150.00 invoiced August
28, 2017, for video of Katherlin Wall’s deposition; (c) a $232.72 charge invoiced October 17, 2017,
for expedited delivery of Henry Seaton’s deposition transcript; and (d) charges of $225.00 and
$62.50 invoiced November 6, 2017 for the video of Rick Fenner’s deposition. Davis does not offer
any argument or authority in support of its cursory objections.

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(a) Expedited Rough ASCII Copy
Hogan states that Davis first ordered an expedited copy of Benjamin Strickler’s deposition
which caused Hogan to order it as well, and asserts that under these circumstances the cost is fairly
taxable to Davis, citing Buehrle v. City of O’Fallon, 2012 WL 579473, at *3 (E.D. Mo. Feb. 22,
2012).
This Court has allowed the cost of expedited transcripts in some cases and denied it in others,
based on evidence offered as to why expedited transcripts were reasonable and necessary under the
circumstances of each case. See, e.g., American Auto Ins. Co. v. Omega Flex, Inc., 2014 WL
980398, at *4-5 (E.D. Mo. Mar. 12, 2014) (allowing cost of expedited transcript of hearing on
summary judgment and Daubert motions as reasonable and necessary because of short period of time
between the ruling on the motions and the deadline for filing motions in limine); but see ABT Sys.,
2016 WL 5470198, at *3 (denying expedited transcripts where prevailing party failed to show they
were necessary and failed to demonstrate it could not have scheduled the depositions in question
earlier to avoid having so many shortly before dispositive motion deadline); and U.S. Ring Binder,
L.P. v. Staples Office Superstore, LLC, 2010 WL 2010443, at *2 (E.D. Mo. May 19, 2010)
(disallowing cost of two-day rush expedited transcript where prevailing party failed to adequately
explain why witness’s failure to answer questions during his deposition necessitated the rush
transcript to meet deadline for motions to compel nine days later). In the Buehrle case, cited by
Hogan, the Court allowed a prevailing defendant to recover the costs of expedited deposition
transcripts where only the plaintiff had requested the expedited transcripts, and they were paid for
by the defendant. 2012 WL 579473, at *3.
Here, Hogan provides no information from which the Court can determine whether the
expedited Strickler transcript was reasonable and necessary in the circumstances of this case. The
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mere fact that defendant Davis ordered an expedited transcript does not automatically make it
reasonable and necessary for Hogan to do so. The Court has no information as to why either party
found it appropriate to order an expedited transcript. Unlike the Buehrle case, Hogan did not pay
for an expedited transcript only ordered by Davis, so Buehrle does not support a finding of
reasonableness here. The Court will disallow the $369.60 cost of the expedited rough ASCII
transcript of Mr. Strickler’s deposition but will address below whether Hogan can recover the
transcript fee pursuant to the attorneys’ fees provision in the parties’ Agreement.1
(b) Video Deposition Costs
Defendant Davis objects to charges of $275.00 and $150.00 for video recording of Hogan’s
witness Katherlin Wall’s deposition in Savannah, Georgia, and charges of $225.00 and $62.50 for
video recording of Hogan’s witness Rick Fenner’s deposition in Houston, Texas. Wall and Fenner
are Hogan’s current and former logistics coordinators. The video deposition charges were in
addition to charges for printed transcripts. Hogan played the two video depositions at trial, and these
witnesses’ testimony helped it obtain a favorable verdict. Neither video had text running across the
bottom of the screen, and neither was synched to a transcript. Hogan asserts it was necessary for
it to also obtain printed transcripts of the depositions in order to comply with the Case Management
Order’s requirements concerning deposition designations, as it had to cite page and line numbers.
The Eighth Circuit has held that Ҥ 1920(2) permits taxation of costs for both printed and
electronically recorded transcripts of the same deposition as long as each transcript is necessarily
obtained for use in a case.” Stanley, 784 F.3d at 467. The Eighth Circuit observed that there are
many circumstances where both printed and electronically recorded transcripts of the same

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The Court will tax in plaintiff’s favor the other costs associated with Mr. Strickler’s
deposition, in the amount of $302.30.
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deposition can satisfy the statute’s “necessarily obtained for use in the case” requirement. Id. at 466.
For example, both printed and video depositions may be necessarily obtained for use in the case
where “parties may capture depositions electronically in a large and complex patent case for use in
trial while also retaining written transcripts for purposes of filing copies with the court,” and where
“[a]ttorneys may . . . be called upon to edit objectionable portions of electronically recorded
testimony, or to supply an opposing party with a transcript to obtain a video or audio recorded
deposition.” Id. (citing cases).
The Court finds under the circumstances of this case that Hogan has established both printed
and electronic transcripts of the same depositions were “necessarily obtained for use in the case” for
the reasons it asserts, thus satisfying the statute’s requirement. These costs will be taxed.
(c) Expedited Delivery Charge
Defendant Davis objects to a $232.72 charge for expedited delivery of Henry Seaton’s expert
deposition transcript. Hogan asserts it had a real need to promptly obtain the transcript of Mr.
Seaton as it took his deposition on September 22, 2017, but had not received the transcript by
October 4, 2017, twelve days later, and had to order an expedited transcript to meet the Case
Management Order’s October 13, 2017 deadline for Daubert motions. In the Court’s experience,
while it is not unheard of for a court reporting service to take twelve days or more to deliver a
standard transcript, generally such a transcript will be delivered within about seven to twelve days.
The Court notes that the parties jointly sought modification of the CMO in September 2017, in part
because Hogan had not yet been able to take the deposition of Mr. Seaton, who resides in Nashville,
Tennessee. See Jt. Mot. to Modify Amended CMO (Doc. 48, ¶ 7). Hogan filed a Daubert motion
concerning Mr. Seaton’s testimony on October 13, 2017. Under these circumstances, the Court

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finds Hogan has established that an expedited transcript of Mr. Seaton’s testimony was reasonable
and necessary for use in the case. This cost will be taxed.
4. Fees for Witness
Hogan incurred a $40 statutory witness fee for deponent Katherlin Wall. This cost is
allowable under 28 U.S.C. § 1920(3) and 28 U.S.C. § 1821, and will be taxed.
5. Cost of Hotel Meeting Room for Depositions
Hogan seeks costs of $200.00 for fees incurred in the rental of a hotel meeting room for the
depositions of two witnesses, Todd Davis and Jeremy Garrison. Davis objects to this item of cost
as not allowable under § 1920. The Court has recently held that fees incurred in the rental of a hotel
conference room to host depositions are not recoverable under § 1920(3). Gierer v. Rehab Medical,
Inc., 2018 WL 1397532, at *3-4 (E.D. Mo. Mar. 20, 2018). Hogan cites two decisions from this
Court that it states allowed such costs under § 1920, Franklin v. Pinnacle Entertainment, Inc., 2014
WL 1356126, at *3 (E.D. Mo. Apr. 7, 2014); and Burton v. St. Louis Board of Police
Commissioners, 2012 WL 5392500, at *1 (E.D. Mo. Nov. 5, 2012). The cases are distinguishable
from the instant case, however, because in Franklin and Burton the court reporting service charged
for the use of video conference rooms for video depositions, and the Court determined the cost was
taxable as a fee of the court reporter under § 1920(2). Here, the depositions at issue were not video
depositions, and the room rental fee was not imposed by the court reporting service.
The Court concludes the room rental fee is not a recoverable cost under § 1920 and it will
not be taxed, but will address below whether Hogan can recover the fee pursuant to the attorneys’
fees provision in the parties’ Agreement.

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C. Conclusion
For the foregoing reasons, the Court will grant in part and disallow in part plaintiff Hogan’s
Bill of Costs, and will order costs taxed in its favor in the amount of $4,912.67, as follows:
•
•

Fees for transcripts
Fees for witnesses
TOTAL

4,872.67
40.00
$ 4,912.67

.
III. Plaintiff Hogan’s Motion for Attorney’s Fees and Expenses
The Court now turns to Hogan’s motion for contractual attorney’s fees and expenses under
the terms of the 2013 Broker-Carrier Agreement. Hogan seeks $254,553.50 in attorney’s fees and
$10,425.95 in expenses. The motion is supported by the affidavit of attorney Dale Weppner; a
ninety-page itemized billing record from the law firm Greensfelder, Hemker & Gale, P.C.; an
itemized report of expenses incurred; 2017 Missouri billing rate information as published in the
Missouri Lawyers Weekly newspaper; Defendant’s First Request for Production of Documents
Directed to Plaintiff; and Defendant’s Rule 30(b)(6) Second Amended Notice of Deposition to
Hogan Logistics, Inc.
Defendant Davis opposes the motion for attorney’s fees on the grounds that (1) Hogan did
not reduce its claimed attorney’s fees for its voluntarily dismissed claims in Counts II and III, though
the parties’ Stipulation for Dismissal of those claims required the parties to bear their own fees and
expenses related to the claims; (2) Hogan overstaffed the case by using two lawyers for pretrial
proceedings and at trial, even though it knew its breach of contract claim was worth slightly less
than $50,000; and (3) the amount of attorney’s fees and expenses claimed is disproportionate to the
judgment amount.

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A. The Contractual Provision
The Traffic Solicitation Clause in the parties’ 2013 Broker-Carrier Agreement includes the
following language regarding attorney’s fees and expenses:
10. TRAFFIC SOLICITATION
During the term of this Agreement and for a period of 12 months after termination
or expiration, Carrier shall not solicit or accept traffic from any Customer where (1)
the availability of such traffic or such Customer first became known to Carrier as a
result of Broker’s efforts, or (2) where such traffic or such Customer was first
tendered directly or indirectly, to the Carrier by Broker. Without limitation of the
foregoing prohibition, if Carrier breaches this prohibition and obtains traffic from
such customer, Broker then is entitled, for a period of 12 months after the involved
traffic first begins to move, to a commission from the Carrier of twenty percent
(20%) of the transportation revenue on the movement of the traffic. The provisions
of this Section 10 shall survive any termination or expiration of this Agreement. The
term “Customer” specifically includes, without limitation, Imperial Sugar. In the
event Broker engages legal counsel to enforce this or any other provision of this
Agreement, Carrier shall bear all fees and expenses of such counsel if Broker
prevails in such claim.
(Doc. 10 at 4, § 10) (emphasis added).
Because Hogan retained legal counsel, filed suit, and prevailed in this action to enforce the
Traffic Solicitation Clause, the Agreement’s terms obligate Davis to pay “all fees and expenses” of
Hogan’s counsel.
B. Discussion
In a diversity case such as this, federal courts follow state law regarding an award of
attorneys’ fees, absent conflict with a federal statute or court rule. Weitz Co. v. MH Washington,
631 F.3d 510, 528 (8th Cir. 2011). Under applicable Missouri law, a prevailing party cannot recover
attorneys’ fees from another party, except when allowed by contract or statute.

Berry v.

Volkswagen Group of Am., Inc., 397 S.W.3d 425, 431 (Mo. 2013) (en banc); see Trim Fit, LLC v.

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Dickey, 607 F.3d 528, 532 (8th Cir. 2010) (citing Essex Contracting, Inc. v. Jefferson Cnty., 277
S.W.3d 647, 657 (Mo. 2009) (en banc)).
Where, as here, “‘a contract provides for the payment of attorneys’ fees and expenses
incurred in the enforcement of a contract provision, the trial court must comply with the terms of
the contract and award them to the prevailing party.’” DocMagic, Inc. v. Mortgage P’ship of Am.,
L.L.C., 729 F.3d 808, 812 (8th Cir. 2013) (quoting Clean Uniform Co. St. Louis v. Magic Touch
Cleaning, Inc., 300 S.W.3d 602, 612 (Mo. Ct. App. 2009)). “Under Missouri law [courts] must
enforce a contract as written and according to the plain meaning of the words in the contract when
the contract is clear and unambiguous.” Id. (quoted case omitted). Nonetheless, reasonableness is
an implied term in every contract for attorney’s fees under Missouri law. Missouri ex rel. Chase
Resorts, Inc. v. Campbell, 913 S.W.2d 832, 835 (Mo. Ct. App. 1996).
In Missouri, the trial judge is considered an expert on the subject of attorney’s fees. O’Brien
v. B.L.C. Ins. Co., 768 S.W.2d 64, 71 (Mo. 1989) (en banc). Though the Court has discretion to
award reasonable attorney’s fees under Missouri law, various factors are appropriately considered
to determine the amount of attorney’s fees to award. Gilliland v. Missouri Athletic Club, 273
S.W.3d 516, 523 (Mo. 2009) (en banc). An important consideration is the result achieved. O’Brien,
768 S.W.2d at 71. Other relevant factors in determining the reasonable value of attorneys’ fees
include the following:
1) the rates customarily charged by the attorneys involved in the case and by other
attorneys in the community for similar services; 2) the number of hours reasonably
expended on the litigation; 3) the nature and character of the services rendered; 4)
the degree of professional ability required; 5) the nature and importance of the
subject matter; 6) the amount involved or the result obtained; and 7) the vigor of the
opposition.

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Berry, 397 S.W.3d at 431 (quoted case omitted). The Court now reviews Hogan’s claimed
attorney’s fees and expenses, and Davis’s arguments in opposition thereto.
1. Result Achieved
Hogan prevailed at trial on its sole claim presented to the jury, breach of contract. Hogan
established that Davis received nearly $250,000 in revenues from its improper solicitation of
Imperial Sugar freight, and the jury awarded Hogan the full amount of damages it was entitled to
under the parties’ Agreement – twenty percent of the transportation revenue on the movement of the
traffic – after less than an hour of deliberation. Hogan also prevailed in pretrial proceedings by
successfully opposing Davis’s motions for judgment on the pleadings and for summary judgment,
and it obtained the exclusion of most of Davis’s expert witness’s testimony.
Davis asserts that Hogan was not successful on its dismissed claims in Counts II and III and
that fees are not warranted for legal services spent on unsuccessful claims, citing McClain v. Papka,
108 S.W.3d 48, 54 (Mo. Ct. App. 2003). Davis also states that Hogan did not reduce its claimed
attorney’s fees for the voluntarily dismissed claims, although the parties’ Stipulation for Dismissal
of those claims required the parties to bear their own fees and expenses related thereto. Davis makes
no effort to identify any fees and expenses attributed to the dismissed claims, however, and asserts
only that if the case had “dealt solely on breach of the Traffic Solicitation Clause” the fees and
expenses “obviously would have totaled far less than [the] $161,000” that had been expended at the
time of dismissal. Def.’s Opp. at 5.2

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Davis also cites Loggins v. Delo, 999 F.2d 364, 369 (8th Cir. 1993), but Loggins was a
federal civil rights case involving a fee award under 42 U.S.C. § 1988, not Missouri law, and
therefore is inapplicable in the context of this case.
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Hogan replies that the focus should be on its success on its breach of contract claim and not
the fact that it dismissed two similar claims, based on the same facts, prior to trial and prior to the
time Davis would have incurred any fees to oppose them on summary judgment. Hogan asserts that
its breach of the duty of good faith and fair dealing claim mirrored its breach of contract claim, and
“served as a backdrop against the notion that Davis Transfer did not breach the express terms of the
contract,” and its tortious interference claim was based on Davis’s use of confidential pricing
information to “poach Imperial Sugar in order to undermine Hogan and cut the middle man out.”
(Doc. 157 at 8.) Hogan asserts that under these circumstances and considering its excellent result,
the Court should find the two dismissed claims were inextricably intertwined with its breach of
contract claim and make no fee reduction based on its voluntary dismissal of the claims.
The parties have not cited and the Court in independent research has not found a Missouri
case that addresses an award of contractual attorney’s fees where a prevailing party also voluntarily
dismissed related claims. Where a prevailing party is successful on some but not all of its contractbased claims, Missouri courts restrict attorney fee awards to claims on which the party prevailed.
See, e.g., Miller v. Gammon & Sons, Inc., 67 S.W.3d 613, 625-26 (Mo. Ct. App. 2001) (landlord
was a prevailing party on claim for rent due under lease, though it did not recover the entire amount
sought, and was entitled to contractual attorney’s fees on that claim; but claim for structural repairs
to a parking lot was not covered by the lease, and therefore attorney’s fees related to the claim were
not based on contract and were not recoverable); Schnucks Carrollton Corp. v. Bridgeton Health &
Fitness, Inc., 884 S.W.2d 733, 739-40 (Mo. Ct. App. 1994) (landlord was prevailing party and
entitled to contractual attorney’s fees on claim enforcing defendant’s obligations under lease and
guarantee thereof, but not on unsuccessful claim for double rent based on holdover tenancy).

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The Miller and Schnucks cases are factually distinguishable from the instant case, because
there the prevailing parties lost at trial on their unsuccessful claims, rather than voluntarily
dismissing them. A prevailing party would necessarily have expended more attorney’s fees on
unsuccessful claims pursued throughout a case, than where claims were dismissed prior to the filing
of a summary judgment motion. Nevertheless, based on these authorities, the Court will assume that
under Missouri law it is appropriate to deduct contractual attorney’s fees related to a separate claim
that was voluntarily dismissed. This assumption is supported in this case by the parties’ Stipulation
for Dismissal, in which the parties agreed that each would bear its own attorney’s fees and costs with
respect to the dismissed claims. (Doc. 75.)
To the extent Davis argues the Court should decline to award Hogan any of its attorney’s
fees because it did not reduce or allocate its fee request with respect to the dismissed claims, this
unsupported argument fails. Because trial courts are considered experts on the issue of awarding
attorney fees in Missouri, they may award such fees without the aid of evidence. Kansas City Live
Block 139 Retail, LLC v. Fran’s K.C. Ltd, 504 S.W.3d 725, 737 (Mo. Ct. App. 2016) (citing cases).
As a result, the “failure to allocate or segregate is generally not fatal to the prevailing party’s award
of attorney fees.” Id. (citing cases).
A claim for breach of the covenant of good faith and fair dealing is a contractual claim under
Missouri law. Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 413 (Mo. Ct. App. 2000). This claim
mirrored Hogan’s successful breach of contract claim and was based on the same provision of the
parties’ Agreement. Any discovery or other activity relating to Hogan’s good faith and fair dealing
claim would exactly correlate to its breach of contract claim. As a result, the Court will not reduce
Hogan’s attorney’s fees because of the voluntary dismissal of this claim.

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Hogan’s tortious interference claim is different. To state a claim for intentional interference
with a contract or business relationship under Missouri law, a plaintiff must establish (1) a contract
or valid business relationship; (2) defendant’s knowledge of the contract or relationship; (3)
intentional interference by the defendant inducing or causing a breach of the contract or relationship;
(4) absence of justification; and (5) damages resulting from defendant’s conduct. Nazeri v. Missouri
Valley Coll., 860 S.W.2d 303, 316 (Mo. 1993) (en banc).
Because the tort claim required Hogan to prove elements in addition to the existence and
breach of the contract, it is possible Hogan incurred attorney’s fees related to the claim separate from
those it incurred on the contract claims. However, Davis fails to identify a single time entry,
deposition question, or discovery request related to the tortious interference claim, nor does it offer
a proposed percentage fee reduction, which weakens its argument and offers no guidance to the
Court.
Hogan’s claim for tortious interference was added in July 2017, approximately eleven
months after the case was filed in state court, and was voluntarily dismissed in December 2017, five
months later. The claim was largely based on the same set of facts as the breach of contract claim.
Hogan’s detailed billing records show that it incurred approximately $100,000 in attorney’s fees
during the period July 1, 2017 through December 31, 2017. However, most of the approximately
$53,000 in fees Hogan incurred from mid-October through December 2017 were expended in
responding to Davis’s motion for summary judgment, which did not address the tortious interference
claim. (Doc. 51.)
To the extent the tortious interference claim implicated some additional work, despite
Davis’s failure to point to even a single time entry that the dismissed claim entailed, it appears any
such additional work was minimal. The Court will assume the tortious interference claim entailed
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some slight additional work separate from Hogan’s contract claims, and will reduce Hogan’s fee
award by two percent to account for its lack of success on the tort claim.
2. Rates Charged and Hours Expended
The Court finds that the rates charged by Hogan’s attorneys and paralegals involved in the
case were reasonable and well in line with rates charged by other attorneys in St. Louis for similar
services, based on the Court’s general familiarity with rates charged by attorneys in St. Louis, its
experience in fee disputes, and its review of the 2017 list of attorney billing rates in the Missouri
Lawyer’s Weekly. The rates were also reasonable when the Court considers the nature and character
of the services provided by Hogan’s attorneys, their expertise and performance, and the successful
results they obtained in this case.
The total hours expended were also reasonable under the circumstances presented, especially
considering the forceful defense offered by Davis to what initially appeared to be a relatively simple
breach of contract case. Davis vigorously defended Hogan’s claims by pursuing novel defenses and
engaging in significant discovery and motion practice, which changed the case from a relatively
simple action for breach of contract to a more complicated lawsuit. Davis filed both a motion for
judgment on the pleadings and a motion for summary judgment, despite the Court having found the
contract language to be ambiguous. Mem. and Order of Apr. 27, 2017 (Doc. 32 at 6). Davis’s
motions raised complex issues regarding contract ambiguity and interpretation. Among other things,
Davis sought summary judgment on an unpleaded affirmative defense of prior material breach.
Further, Davis’s arguments in its dispositive motions, in opposing Hogan’s Daubert motion,
and in support of its requested jury instructions were often undeveloped and conclusory, which
required Hogan and the Court to engage in extensive research to find and articulate the law, and thus
required Hogan to expend additional fees. The proposed testimony of Davis’s expert witness raised
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complicated issues concerning the permissible scope of expert testimony in contract interpretation
cases. And, as previously noted, Davis submitted thirty-seven proposed jury instructions, including
at least three separate converse instructions and numerous non-MAI instructions stating legal
propositions drawn directly from cases, which required Hogan to incur substantial additional fees
to respond to these.
Although the attorney’s fees Hogan seeks are more than the damages the jury awarded,
Hogan obtained the complete relief it sought and, in general, a “party cannot litigate tenaciously and
then be heard to complain about the time necessarily spent overcoming its vigorous defense.”
Kansas City Live, 502 S.W.3d at 738 (quoted cases omitted); see Bacon v. Uhl, 173 S.W.3d 390,
399 (Mo. Ct. App. 2005) (fee award was not an abuse of discretion where much of the fees expended
were caused by the defendants’ defense). Further, under Missouri law, “While an award of
attorneys’ fees should have some relationship to the award, ‘there is no established principle that
the fee may not exceed the damages awarded.’” Berry, 397 S.W.3d at 431 (quoting O’Brien, 768
S.W.2d at 71). And, “Where the claim to attorney’s fees is based upon a contract, the court must
adhere to the terms of the contract[.]” Harris v. Union Electric Co., 766 S.W.2d 80, 89 (Mo. 1989)
(en banc).
Based on the defense offered by Davis in this case, the Court is confident there was no
“overlawyering” as a result of Hogan using two attorneys for pretrial and trial proceedings,
particularly where Davis has not identified a single instance of allegedly duplicative or inefficient
use of attorney time. The Court’s review of the billing records does not reveal any needlessly
duplicated work. Moreover, Davis itself utilized two attorneys in this case, so it is facially
unpersuasive that it complains about Hogan doing so.

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3. Other Relevant Factors
As stated above, this case required extensive briefing on difficult issues regarding contract
ambiguity, contract interpretation, the permissible scope of expert testimony in contract
interpretation cases, and jury instruction issues. Hogan overcame both of Davis’s dispositive
motions, secured the exclusion of most of Davis’s expert testimony, and succeeded in obtaining a
jury verdict for all of its damages, which indicates its attorneys exercised a high degree of
professional ability.
The subject matter of this case was very important to Hogan as a means of safeguarding its
business model as a freight broker and third-party logistics provider, by protecting the integrity of
the traffic solicitation clause present in its agreements with hundreds of other freight carriers in
addition to Davis.
Finally, the Court rejects outright Davis’s argument that the entirety of Hogan’s fees are
unreasonable because the amount in controversy did not justify litigation “in a dispute that Hogan
knew or should have known would result in no more than a $48,846.67 judgment in accordance with
the contract terms.” (Doc. 149 at 4.) Establishing the validity of the Traffic Solicitation Clause in
the parties’ Agreement and enforcing its contractual rights was important to Hogan’s business model
for the reasons stated above. Further, because the parties’ Agreement entitled Hogan to its
attorney’s fees and expenses incurred if it prevailed in an action to enforce the Agreement’s terms,
its recovery was never limited to twenty percent of the revenue Davis earned in violation of the
Traffic Solicitation Clause, and Davis knew this.
The Court strongly condemns Davis’s disclosure of confidential mediation communications
to support its argument, and hereby strikes all such references from the record. The disclosure of
confidential mediation communications violates the Court’s Local Rules concerning alternative
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dispute resolution, which state in pertinent part: “Alternative dispute resolution proceedings are
private and confidential. . . . . All written and oral communications made or disclosed to the neutral
are confidential and may not be disclosed by the neutral, any party, or other participant, unless the
parties agree in writing.” E.D. Mo. L.R. 6.04(A). The disclosure also violates the USA&M
Agreement to Mediate the parties signed before mediating this case, which forbids disclosure of any
communications made during the course of the mediation, and explicitly states that such
communications are “confidential and not admissible in any court or administrative procedure”
unless all parties and the mediator agree in writing. (Pl.’s Reply (Doc. 157), Ex. B at 2, ¶ c.) There
was no agreement between the parties or signed by the mediator to permit Davis to disclose the
confidential mediation communications in this case.
There is no justification for Davis’s counsel’s conduct in this respect, and such conduct is
undoubtedly sanctionable. The Court in the exercise of its discretion will not impose a monetary
sanction on Davis or its counsel in this case, but does not consider the improper evidence, strikes
it from the record, and strongly cautions Davis’s counsel not to engage in similar conduct in the
future.
C. Conclusion as to Attorney’s Fees
As discussed above, the Court finds that Hogan’s attorney’s fees sought pursuant to the
language of the parties’ Agreement are reasonable. The Court will award Hogan its attorney’s fees
in the amount of $254,553.50, reduced by two percent–$5,091.07–for fees attributable to its
dismissed tortious interference claim, for a fee award of $249,462.43.
D. Contractual Expenses
Pursuant to the terms of the Agreement, Hogan is entitled to recover from Davis “all . . .
expenses of [Hogan’s] counsel” if Hogan prevails on a claim for breach of the Agreement. (Doc.
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10 at 4, § 10.) Davis does not object to any of Hogan’s claimed expenses, except to the extent they
may duplicate any costs awarded pursuant to 28 U.S.C. § 1920. By using the language “all . . .
expenses,” the parties agreed that all of Hogan’s legal expenses were to be paid by the breaching
party if litigation was necessary to enforce the contract. This contractual language “override[s] the
strictures of § 1920.” Weitz Co., 631 F.3d at 535.
Under the terms of the Agreement and the Eighth Circuit’s statement in Weitz Co., “all
expenses” includes deposition costs, travel expenses, filing fee, service fees, and the other categories
of expenses for which Hogan seeks to recover. The Court will award Hogan all of its expenses
incurred, including those the Court determined did not qualify as statutory costs pursuant to § 1920:
the $104.40 state court filing fee; the $435.00 private process server fees; the $369.60 cost of the
expedited rough ASCII transcript of Mr. Strickler’s deposition; and the $200.00 rental cost of the
hotel meeting room for depositions.
Hogan’s expenses as listed in Exhibit E to its Motion for Attorney’s Fees total $10,425.95.
Each expense that was included in Hogan’s Bill of Cost is also listed on Exhibit E. Therefore, it is
necessary for the Court to deduct from Hogan’s list of total expenses the items of cost that were
taxed pursuant to 28 U.S.C. § 1920, as follows:
• Witness fee - Katherlin Wall subpoena
• Videographer fee - Katherlin Wall deposition
• Deposition transcript - Katherlin Wall
• Deposition transcript - Benjamin Strickler
• Deposition transcript - Jeremy Garrison
• Deposition transcript - Todd Davis
• Deposition transcript - Henry Seaton
• Deposition transcript - Rick Fenner
TOTAL

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$ 40.00
$ 425.00
$ 524.30
$ 302.30
$ 320.50
$ 794.85
$1,625.72
$ 880.00
$4,912.67

Consequently, Hogan will be awarded its contractual expenses in the amount of $5,513.28.3
IV. Conclusion
For the foregoing reasons, plaintiff Hogan Logistics, Inc.’s Bill of Costs will be granted in
part and taxed against defendant Davis Transfer Company, Inc. in the amount of $4,912.67.
Plaintiff’s Motion for Attorney’s Fees is granted as set forth above, and plaintiff Hogan is entitled
to judgment against defendant Davis for contractual attorney’s fees in the amount of $249,462.43
and contractual expenses in the amount of $5,513.28. Post-judgment interest shall accrue at the
federal statutory rate, and an amended judgment will issue separately.
Accordingly,
IT IS HEREBY ORDERED that plaintiff Hogan Logistics, Inc.’s Bill of Costs is
GRANTED to the extent that costs will be taxed in its favor in the amount of Four Thousand Nine
Hundred Twelve Dollars and Sixty-Seven Cents ($4,912.67). [Doc. 148]
IT IS FURTHER ORDERED that the Clerk of the Court shall tax costs against defendant
Davis Transfer Company, Inc. in the amount of Four Thousand Nine Hundred Twelve Dollars and
Sixty-Seven Cents ($4,912.67).
IT IS FURTHER ORDERED that plaintiff Hogan Logistics, Inc.’s Motion for Attorney’s
Fees is GRANTED to the extent that Hogan is entitled to judgment against defendant Davis
Transfer Company, Inc. for contractual attorney’s fees in the amount of Two Hundred Forty-Nine
Thousand Four Hundred Sixty-Two Dollars and Forty-Three Cents ($249,462.43), and contractual
expenses in the amount of Five Thousand Five Hundred Thirteen Dollars and Twenty-Eight Cents
($5,513.28). [Doc. 144]

3

$10,425.95 - $4,912.67 = $5,513.28.
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IT IS FINALLY ORDERED that the Court will enter an Amended Judgment in accordance
with this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 19th day of July, 2018.

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