Blackorby v. BNSF Railway Company
Filing
140
ORDER Granting 127 Motion for Attorney Fees; Granting 129 Motion for Attorney Fees. Signed on 09/10/15 by District Judge Stephen R. Bough. (Amos, Gloria)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
EDWARD E. BLACKORBY,
Plaintiff,
vs.
BNSF RAILWAY COMPANY,
Defendant.
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Case No. 4:13-cv-00908-SRB
ORDER
Before this Court is plaintiff's Motion for Attorney Fees (Doc. #127) and plaintiff's
Motion for Bill of Costs (Doc. #129). For the reasons discussed below, both motions are granted.
I.
Background
Plaintiff filed suit on September 16, 2013, alleging violations of both the Federal Rail
Safety Act ("FRSA") and the Federal Employers' Liability Act ("FELA"). On June 5, 2015, ten
days before trial, as typically happens when counsel is making final litigation strategy decisions,
narrowing claims and making final decisions on which witnesses to be called, plaintiff dismissed
with prejudice his FELA claim. Defendant takes issue with the last minute dismissal and the
manner in which it was filed. On June 10, 2015, five days before trial, as typically happens when
defense counsel is making a decision on whether or not to settle, defendant filed a Notice of
Filing of Offer of Judgment. Plaintiff also takes issue with the last minute Offer of Judgment and
the manner in which it was filed. At trial plaintiff prevailed on his FRSA claim, and while the
jury determined defendant’s conduct met the punitive damage standard, they awarded no
punitive damages.
II.
Motion for Attorney Fees
Plaintiff seeks fees and litigation costs pursuant to 49 U.S.C. § 20109(e). "BNSF does not
dispute the availability of an award of reasonable attorneys' fees and costs to a plaintiff with
limited success. Instead, Plaintiff's claim for all of the attorneys' fees for all of his claims is
overstated . . ." (Doc. #133, p. 2) (emphasis in original).
The Federal Judicial Center's publication, Awarding Attorneys' Fees and Managing Fee
Litigation, (3rd ed. 2015) is a helpful resource to address the issues before the Court. In that
defendant does not contest the availability of an award - only the amount - this Court need not
determine if a fee is in order. However, that same publication notes "the Supreme Court has said
that to be eligible for a fee award, a plaintiff must prevail on 'any significant claim affording it
some of the relief sought.'" Id. at 6 (citing Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 791 (1989)). Clearly, plaintiff is a prevailing party.
"Incomplete success is the most common basis for a downward adjustment in attorney
fees. In Hensley v. Eckerhart, the Supreme Court said that when the plaintiff advances discrete,
essentially unrelated claims and prevails on some but not others, it should not be compensated
for work on unsuccessful claims." Awarding Attorneys' Fees and Managing Fee Litigation, p. 38
(3rd ed. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (defining “unrelated” as
not involving "a common core of facts or . . . based on [un]related legal theories.")). The Eighth
Circuit determined that a plaintiff's claim for retaliatory discharge due to the exercise of his First
Amendment rights was distinct from a lack of a predetermination hearing due process violation
claim, thereby warranting a discount in hours. Winter v. Cerro Gordo Cnty. Conservation Bd.,
925 F. 2d 1069 (8th Cir. 1991).
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Even if the claims are closely related, a downward adjustment can still be appropriate in
cases upon limited success. "The gauge of success is the result of the lawsuit in terms of relief;
there should not be a downward adjustment simply because not every argument or theory
prevailed. Many defendants have asked courts to reduce awards because of the plaintiff's
unimpressive results, even when the plaintiff prevailed on all claims or when the unsuccessful
claims were closely related to the successful claims. Courts have usually rejected these requests,
but there have been exceptions." Awarding Attorneys' Fees and Managing Fee Litigation, p. 40
(3rd ed. 2015) (internal citations omitted). The Eighth Circuit affirmed a downward adjustment
where plaintiffs lost on most claims and most individual plaintiffs received no relief. Gilbert v.
Little Rock, Ark., 867 F.2d 1063, 1066-67 (8th Cir. 1989). Several Circuits have adopted a rule
that attorneys' fees "should not be reduced simply because a plaintiff recovered a low damage
award." Cowan v. Prudential Ins., 935 F.2d 522, 526 (2d Cir. 1991); see also Davis v.
Southeastern Pa. Transp. Auth., 924 F.2d 51, 55 (3d Cir. 1991); Northeast Women's Ctr. v.
McMonagle, 889 F. 2d 466, 467-77 (3d Cir. 1989). The Eighth Circuit, in addressing the
reduction of attorney's fees in a prisoner civil rights suit, analyzed the two relevant Supreme
Court decisions.
In his cross-appeal, Loggins contends that the district court abused its
discretion in reducing his fee award to $25,000.00. He alleges the reduction was
solely on account of the small damage award and that such a reduction violates
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and
City of Riverside v. Rivera, 477 U.S. at 561, 106 S.Ct. at 2686. In Hensley, the
Court held that “where the plaintiff achieved only limited success, the district
court should award only that amount of fees that is reasonable in relation to the
results obtained.” 461 U.S. at 440, 103 S.Ct. at 1943. In the context of multiple
claims, the Court held that “the hours spent on the unsuccessful claim should be
excluded in considering the amount of a reasonable fee.” Id. In Rivera, a plurality
of the Court “reject[ed] the proposition that fee awards under § 1988 should
necessarily be proportionate to the amount of damages a civil rights plaintiff
actually recovers.” 477 U.S. at 574, 106 S.Ct. at 2694. Among other things, the
plurality opinion noted that a rule of “proportionality would make it difficult, if
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not impossible, for individuals with meritorious civil rights claims but relatively
small potential damages to obtain redress from the courts[,]” Id. at 578, 106 S.Ct.
at 2696, and that civil rights awards “do not reflect fully the public benefit
advanced by civil rights litigation.” Id. at 575, 106 S.Ct. at 2695.
We do not believe that the reduction in this case violated Hensley. We
note that the district court reduced the award not only because Loggins failed to
obtain the amount of actual damages requested, but also because he failed to
obtain punitive damages. Contrary to Loggins' suggestion, we believe that
“limited success” may encompass the situation where, as here, a plaintiff requests
both compensatory and punitive damages, but recovers only compensatory
damages. In Hensley, the Court indicated that extent of the relief obtained was a
permissible factor in determining a reasonable fee. Indeed, in addressing the
reasonableness of an attorney's fee in the case of a fired employee who obtained
lost wages and expungement but not reinstatement and damages, the Court stated
that it “[c]ertainly was well within the [ ] District Court's discretion to make a
limited fee award in light of ‘minor relief’ obtained.” 461 U.S. at 438 n. 14, 103
S.Ct. at 1942 n. 14. Moreover, we note that in determining that $25,000.00 was a
reasonable fee, the district court also considered the adequacy of the
compensation to counsel and the public benefit of the litigation.
We also do not believe that the reduction violated Rivera. As the district
court noted, in Rivera the Court only ruled that proportionality was not required;
it did not hold that a district court lacked discretion to consider the amount of
damages in determining the reasonableness of a fee. To the contrary, the Court
stated that “[t]he amount of damages a plaintiff recovers is certainly relevant to
the amount of attorney's fees to be awarded under § 1988.” 477 U.S. at 574, 106
S.Ct. at 2694. See also Hensley, 461 U.S. at 430, 103 S.Ct. at 1938 (court should
consider “ ‘the amount involved and the results obtained’ ” in determining
reasonable fee) (quoting Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 718 (5th Cir.1974)).
Loggins v. Delo, 999 F.2d 364, 369-70 (8th Cir. 1993).
Defendant argues that plaintiff obtained limited success and overstates the fees because
1) three attorneys for plaintiff attended mediation and trial; 2) the plaintiff's lawyers
communicated with each other; 3) the plaintiff’s lawyers had vague communications; 4) the
billing records were vague and must be reduced by 10%; and 5) plaintiff only partially prevailed
and fees must be reduced by 60%. Here, plaintiff pursued two claims up to the eve of trial FELA and FRSA. The FELA claim was for an on-the-job injury. The FRSA claim was for
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reporting an on-the-job injury. This Court finds that the two claims are related and that the
common core of facts are substantially similar.
Plaintiff did have three counsel at the mediation and trial. The Western District of
Missouri orders mediation. The FRSA is a relatively new claim, and plaintiff’s counsel appears
to be one of the leading counsel in the nation pursuing such claims. It is reasonable for all
plaintiff’s counsel to attend court-ordered mediation and trial, especially given that defendant
had an equal or greater number of counsel.
Defendant also takes issue with plaintiff’s counsel communicating with each other. The
realities of important, federal litigation require attorneys to communicate, coordinate, and ensure
that all attorneys are fully informed. Defendant claims that plaintiff's counsel billed for vague
communications in the amount of 3.4 hours. Plaintiff’s counsel does not have to reveal the exact
nature of the conversation, and the 3.4 hours does not strike this Court as unreasonable.
Next, defendant argues for a 10% reduction due to vagueness and incomplete billing
records. Defendant does not indicate which 10% are vague, and this Court's independent review
does not reveal a 10% vague calculation. Defendant also argues that the use of Lathrop & Gage's
own average rates should not be used to meet plaintiff's burden of sufficient evidence of
reasonable rates. This Court finds that the materials submitted by plaintiff have established the
reasonableness of the rates of $300 to $350 per hour for complex, novel federal litigation. The
FRSA claims involve new statutory law, no Eighth Circuit precedent and no model jury
instructions.
Finally, defendant argues that due to the limited success that the fee must be reduced by
60%. In comparing the case law in Hensley, City of Riverside and Loggins, plaintiff was much
more than a partially prevailing party. The dismissal of the FELA claim was clearly a strategic
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decision that was apparently successful given the jury verdict. Plaintiff obtained a result that was
substantially larger than the offer of judgment, and the jury returned a verdict that found BNSF's
actions warranted punitive damages.
As the Eighth Circuit noted in Loggins, “in Hensley the Court indicated that a district
court retained discretion to award a full fee even if a plaintiff did not obtain all requested relief."
Loggins v. Delo, 999 F.2d 364, 369 n. 5 (8th Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S.
424 435-36 n. 11). This Court exercises its retained discretion to award a full fee given that
plaintiff at trial obtained a verdict on all claims, that the FELA and FRSA claims are related, and
that the jury determined BNSF met the standard for punitive damages. A reasonable fee,
including responding to post-trial motions, is as follows:
ATTORNEY
Mr. Dingwall
Mr. Garella
Ms. Mynarich
III.
HOURS
202.6
189.1
88.1
RATE
$350
$300
$350
TOTAL
$70,910
$56,730
$30,835
Motion for Bill of Costs
Plaintiff’s Motion for Bill of Costs seeks $501.70 ($400 in filing fee and with the
remainder in transcript costs). Defendant did not file an objection to this request. The Court finds
the costs are appropriate under Fed. R. Civ. P. 54(d)(1) and grants the Motion. Plaintiff also
seeks litigation costs of $14,425.03 pursuant to 49 U.S.C. § 20109(e), which states that the
prevailing party "shall be entitled to all relief necessary to make the employee whole . . .,
including litigation costs, expert witness fees and reasonable attorney fees." This language is
extremely broad. Congress is expressing an intent to make the employee whole, not just certain
costs under Rule 54. No circuit courts have addressed this issue. The Eighth Circuit has allowed
non-taxable costs to be recovered. Ludlow v. BNSF Ry. Co., 788 F.3d 794, 804 (8th Cir. 2015)
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(allowing expenses of focus groups and jury consultants). To make the plaintiff whole, the
litigation costs of $14,425.03 are also granted.
IV.
Conclusion
Accordingly, it is hereby
ORDERED that plaintiff's Motion for Attorney Fees (Doc. #127) is granted and fees of
$158,475.00 shall be paid by defendant. It is further
ORDERED that plaintiff's Motion for Bill of Costs (Doc. #129) is granted and costs in
the amount of $501.70 and $14,425.03 in litigation costs shall be paid by defendant.
Date: September 10, 2015
/s/ Stephen R. Bough
STEPHEN R. BOUGH, JUDGE
UNITED STATES DISTRICT COURT
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