Dean v. Gage County, Nebraska, et al

Filing 719

MEMORANDUM AND ORDER - Plaintiffs' Application for Attorneys' Fees and Costs (Filing 700 ) is granted in part, and denied in part, as follows: a. Plaintiff James L. Dean (Case No. 4:09CV3144) shall recover from Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, the sum of $11,314.67. b. Plaintiff Lois P. White, as Personal Representative of the Estate of Joseph White, Deceased (Case No. 4:09CV3145), shall recover from Defendants Burdette Searcey, Wa yne Price, and Gage County, jointly and severally, the sum of $34,842.54. c. Plaintiff Kathleen A. Gonzalez (Case No. 4:09CV3146) shall recover from Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, the sum of � 36;34,842.54. d. Plaintiff Thomas W. Winslow (Case No. 4:09CV3147) shall recover from Defendants Burdette Searcey and Gage County, jointly and severally, the sum of $34,842.54. e. Plaintiff Ada Joann Taylor (Case No. 4:09CV3148) shall recover fr om Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, the sum of $34,842.54. f. Plaintiff Deb Shelden (Case No. 4:11CV3099) shall recover from Defendants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, the sum of $45,529.58. g. In all other respects, the Application is denied. 2.Upon consideration of Plaintiffs' Motion for Review of the Clerk's Denial of Plaintiffs' Bill of Costs (Filing 713 ): a. The clerk's or der (Filing 711 ) denying Plaintiffs' Bill of Costs is set aside and vacated. b. Defendants' Objection (Filing 718 ) is denied. c. Plaintiffs' Bill of Costs (Filing 698 ) is granted, and Plaintiffs, jointly, shall recover from Defe ndants Burdette Searcey, Wayne Price, and Gage County, jointly and severally, the sum of $3,056.70 as taxable costs. Judgment will be entered by separate document. Member Cases: 4:09-cv-03144-RGK-CRZ et al. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to Michael J. Flood) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES L. DEAN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
LOIS P. WHITE, as Personal
Representative of the Estate of
Joseph White, deceased,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
KATHLEEN A. GONZALEZ,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
THOMAS W. WINSLOW,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
ADA JOANN TAYLOR,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.
DEBRA SHELDEN,
Plaintiff,
v.
COUNTY OF GAGE, NEBRASKA, et al.,
Defendants.

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4:09CV3144

4:09CV3145

4:09CV3146

4:09CV3147

4:09CV3148

4:11CV3099

MEMORANDUM AND ORDER

This matter is before the court on Plaintiffs’ Application for Attorneys’ Fees
and Costs (Filing 700) and Plaintiffs’ Motion for Review of the Clerk’s Denial of
Plaintiffs’ Bill of Costs (Filing 713).1
I. Plaintiffs’ Motion for Attorneys’ Fees2
On June 11, 2018, judgment was entered by the United States Court of Appeals
for the Eighth Circuit (Filing 694), affirming the judgment that was entered by this
court on July 6, 2016 (Filing 561).3 The Court of Appeals’ mandate issued and was
received by this court on July 24, 2018 (Filing 697). On July 31, 2018, Plaintiffs filed
their motion for attorney fees (Filing 700) with an index of evidence (Filing 701), but
no supporting brief.
The period of time covered by the motion runs from August 3, 2016 (the date
Defendants filed a Rule 59 motion for judgment as a matter of law or for a new trial),
through July 29, 2018. The court previously granted a motion for attorney fees and
expenses for work performed by Plaintiffs’ counsel through July 21, 2016 (the date
the motion for attorney fees was filed). See Memorandum and Order (Filing 613) and
Judgments (Filings 615 through 620) entered on September 6, 2016.4
1

All references to filings herein pertain to the lead case, No. 4:09CV3144.

2

The court will treat Plaintiffs’ application as a motion requesting an award of
attorneys’ fees and related nontaxable expenses. See Fed. R. Civ. P. 7(b), 54(d)(2).
3

Judgment was entered pursuant to the verdict of the jury, finding in favor of
Plaintiffs and against Defendants, and awarding damages totaling approximately
$28.1 million. Defendants filed a timely Rule 59 motion for judgment as a matter of
law or for a new trial (Filing 585), which was denied by the court on September 6,
2016 (Filing 612). Defendants filed their notice of appeal (Filing 621) on October 5,
2016.
4

On July 6, 2016, the same date that judgment was entered on the jury verdict,
the court entered an order (Filing 562) establishing a schedule for Plaintiffs to apply
2

On August 1, 2018, this court entered a Memorandum and Order directing
Plaintiffs to submit “a brief addressing whether the motion is timely, whether the
motion is in compliance with the local rules of this court, the Eighth Circuit Court of
Appeals Local Rules, the Federal Rules of Civil Procedure, and whether the law and
the facts warrant the relief sought on the merits.” (Filing 702) A schedule was
established for submission of briefs and evidence by both sides.
Plaintiffs filed their brief on August 13, 2018 (Filing 708). Defendants filed an
opposing brief on August 24, 2018 (Filing 712). Plaintiffs replied on August 29, 2018
with a brief (Filing 715) and additional evidence (Filing 716). The matter is now ripe
for determination.
A. Jurisdiction
As an initial matter, this court must determine whether it has jurisdiction to
award attorney fees and expenses associated with an appeal. As suggested by the court
in its previous Memorandum and Order, this question was answered in the affirmative
by the Eighth Circuit in Little Rock School District. v. State of Arkansas, 127 F.3d 693
(8th Cir. 1997). In that case, as here, the prevailing parties on appeal did not file a
motion for attorney fees with the Court of Appeals, as provided in Rule 47C of the
Local Rules of the Eighth Circuit, but instead applied to the district court after the
defendant/appellee’s petition for rehearing was denied. The district court awarded

for attorney fees and nontaxable costs, for Defendants to respond, and for Plaintiffs
to reply. Plaintiffs’ motion for attorney fees (Filing 565) was filed on July 21, 2016,
and the matter was taken under submission on August 26, 2016 (Filing 608). The
court awarded Plaintiffs attorney fees and expenses totaling $1,721,519.85. This
amount included fees and expenses associated with three appeals. Defendants argued
that Plaintiffs were required to have filed motions in the Court of Appeals in order to
recover these fees and expenses. The court rejected this argument, for the reason that
Plaintiffs did not gain “prevailing party” status until July 6, 2016, when the jury
verdict was returned and judgment was entered in Plaintiffs’ favor.
3

attorney fees to the plaintiffs pursuant to 42 U.S.C. § 1988.5 The defendant appealed
from the award and argued, among other things, that Rule 47C deprived the district
court of jurisdiction to award attorney fees for work performed in connection with the
appeal. The Eighth Circuit rejected this argument, stating:
Rule 47C provides:
(a) Motion for Fees. A motion for attorney fees ...
shall be filed with the clerk within 14 days after the entry
of judgment.... The court may grant on its own motion an
allowance of reasonable attorney fees to a prevailing party.
(b) Determination of Fees. On the court’s own
motion or at the request of the prevailing party, a motion
for attorney fees may be remanded to the district court or
administrative agency for appropriate hearing and
determination....
The usual practice for awarding fees and costs under 42 U.S.C. §
1988 is for this Court to fix the compensation for services rendered
before it, and for the District Court to do so for services rendered before
it. Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 138 (8th Cir.1982)
(en banc). The policy behind Rule 47C is that fee awards should be
determined by the court most familiar with the legal services in question.
In this case, as in any other before this Court, the plaintiffs should have
filed a motion to this Court for fees incurred on appeal. If they had done
so, we could have remanded the matter to the District Court for its
determination; but we probably would have kept the motion here and
decided it ourselves.
However, Rule 47C cannot and does not affect the jurisdiction of
the district courts. The jurisdiction of the federal district courts is
conferred by Congress. See 28 U.S.C. §§ 1331-1390. Rule 47C is a rule
5

“In any action or proceeding to enforce a provision of section[ ] ... 1983, ... the
court, in its discretion, may allow the prevailing party, other than the United States,
a reasonable attorney’s fee as part of the costs, ....” 42 U.S.C. § 1988 (West).
4

of procedure for the Court of Appeals and does not alter this grant of
jurisdiction. Therefore, despite our local rule, the district courts retain
jurisdiction to decide attorneys’ fees issues that we have not ourselves
undertaken to decide. The District Court has awarded attorneys’ fees for
services rendered before the United States Supreme Court, reasoning that
the Supreme Court had lost jurisdiction, and, in any event, would have
been unlikely to undertake the intensive fact-finding necessary in such
matters. Vaughn v. Westinghouse Elec. Corp., 526 F.Supp. 1165, 1169
(E.D.Ark.1981). Such discretionary and practical considerations continue
to be relevant to a district court’s decision whether to grant a motion for
attorneys’ fees for services before an appellate court.
Rule 47C’s own language indicates that it is not a rigid
jurisdictional rule. First, this Court has the power to grant attorneys’ fees
on its own motion. 8th Cir. R. 47C(a). Second, whether the fee award is
on its own motion or that of the party seeking compensation, this Court
retains the discretion to remand the question to the District Court, instead
of determining the award itself. 8th Cir. R. 47C(b). The Rule thus
preserves multiple procedural options for the determination of attorneys’
fees.
The choice of procedure should not obscure the end goal:
calculation of a fair award. It would be mere procedural contortion to
reverse the District Court’s award only to award fees to the school
districts on our own motion, which we would be inclined to do rather
than allow services necessary to enforce the settlement agreement to go
uncompensated. Therefore, we hold that the District Court had
jurisdiction to make the award, and we review its amount for abuse of
discretion. See Winter v. Cerro Gordo County Conservation Bd., 925
F.2d 1069, 1073 (8th Cir.1991).
Id., at 696-97 (footnote omitted).
While it would have been prudent for Plaintiffs to follow the usual practice of
filing a motion for any appeal-related attorney fees in the Court of Appeals, see id. at
697 n. 2 (8th Cir. 1997) (noting that even before the Court’s adoption of Rule 47C,
“the preferred practice was for the appellate court to decide appellate fee awards”),
5

their failure to do so does not deprive this court of jurisdiction. The court must next
decide whether Plaintiffs’ motion is timely, an issue that was not raised in the Little
Rock Sch. Dist. case.
B. Timeliness
Defendants contend Plaintiffs’ motion is untimely under Rule 47C(a), which
specifies that “[a] motion for attorney fees ... shall be filed with the clerk within 14
days after the entry of judgment.” Because “[a] judgment is entered when it is noted
on the docket,” Fed. R. App. P. 36(a), there can be no doubt that the deadline for
Plaintiffs to file a motion for attorney fees in the Court of Appeals was June 25, 2018.
Defendants do not argue that Rule 47C applies directly to the district courts in
this circuit. It is, after all, “a rule of procedure for the Court of Appeals.” Little Rock
Sch. Dist., 127 F.3d at 696. See Fed. R. App. P. 47(a)(1) (“Each court of appeals ...
may ... make or amend rules governing its practice,” except that “[a] local rule must
be consistent with” the Federal Rules of Appellate Procedure. ); see also Fed. R. App.
P. 1(a)(1) (“These rules govern procedure in the United States courts of appeals.”).
Defendants instead argue that the same 14-day deadline should apply in the
district court, and that Plaintiffs “should not be allowed to recover simply because
they withheld their application hoping to file it in their jurisdiction of choice” (Filing
712, p. 4). While this might be a relevant consideration in determining whether to
grant Plaintiffs’ motion, see Little Rock Sch. Dist., 127 F.3d at 696, it does not go to
the issue of “timeliness.”
Plaintiffs admit that their motion for attorney fees “does not comply with the
Eighth Circuit Court of Appeals Local Rule 47C” (Filing 708, p. 5). They contend the
applicable rule is Rule 54(d)(2) of the Federal Rules of Civil Procedure. This rule,
which is also relied upon by Defendants, provides in part:

6

(A) Claim to Be by Motion. A claim for attorney’s fees and related
nontaxable expenses must be made by motion unless the substantive law
requires those fees to be proved at trial as an element of damages.
(B) Timing and Contents of the Motion. Unless a statute or a court
order provides otherwise, the motion must:
(i) be filed no later than 14 days after the entry of judgment;
...
Fed. R. Civ. P. 54(d)(2). Plaintiffs contend “[t]he Court of Appeals’ judgment was
entered in the district court upon issuance of the mandate” on July 24, 2018 (Filing
708, p. 2), while Defendants contend “entry of judgment” occurred in the Court of
Appeals, on June 11, 2018.
As used in the Federal Rules of Civil Procedure, “judgment” is defined to
“include[ ] a decree and any order from which an appeal lies.” See Fed. R. Civ. P.
54(a). Even if the term “appeal” is broadly construed to include discretionary review
by petition for writ of certiorari, see Fed. Election Comm’n v. NRA Political Victory
Fund, 513 U.S. 88, 100 (1994) (Stevens, J., dissenting) (Although the term ‘appeal’
may be construed literally to encompass only mandatory review, a far more natural
reading of the term ... would embrace all appellate litigation whether prosecuted by
writ of certiorari, writ of mandamus, or notice of appeal.”), it would still require a
“strained construction” of Rule 54(d)(2) to conclude that judgment is entered when
the Court of Appeals’ mandate issues. Cf. Murphy v. L & J Press Corp., 577 F.2d 27,
29 (8th Cir. 1978) (local rule requiring the filing of a bill of costs within 10 days “after
entry of a final judgment or decree,” if read literally, “could not be applicable to the
taxation of appellate costs in the district court since district court proceedings after an
appellate judgment must await issuance of the mandate, which normally follows the
appellate judgment of twenty-one days, and the District Court’s implicit construction
of ‘final judgment or decree’ to mean, in an appellate context, the issuance of mandate
is not palpably unreasonable. However, even if we were to approve this rather strained
construction, apparently not previously announced in any case decision, equitable
7

concerns would lead us to the conclusion that the construction should be applied
prospectively only and not to the litigants at bar.”) (citations and footnote omitted).
In Dippin’ Dots, Inc. v. Mosey, 602 F. Supp. 2d 777, 782 (N.D. Tex. 2009), the
district court concluded, after “looking at the Federal Rules as a whole,” that “Rule
54 should not apply to a judgment from the Court of Appeals.” It explained:
The trigger for the 14-day period under Rule 54 is the entry of judgment.
A “judgment” is defined by Rule 54 as “any order from which an appeal
lies.” Fed.R.Civ.P. 54(a). Based on that definition alone, Rule 54 could
apply to a judgment from the Court of Appeals. After all, a judgment
from the Court of Appeals can be appealed to the United States Supreme
Court. But looking at the Federal Rules as a whole demonstrates that
Rule 54 should not apply to a judgment from the Court of Appeals.
Starting at the beginning, Rule 1 provides that “[t]hese rules govern the
procedure in all civil actions and proceedings in the United States district
courts.” Fed.R.Civ.P. 1. This rule creates a presumption that the Federal
Rules only deal with and refer to district court proceedings. Additionally,
Rule 54 is part of Chapter VII of the Federal Rules. This chapter is titled
“Judgment” and provides rules for issues such as motions for summary
judgment, a new trial, and to alter or amend a judgment. These are all
issues that only arise in district court proceedings. For example, Rule 59
provides that “[a] motion to alter or amend a judgment must be filed no
later than 10 days after the entry of judgment.” Fed.R.Civ.P. 59(e). This
rule “makes clear that the district court possesses the power ... to alter or
amend a judgment after its entry.” Fed.R.Civ.P. 59, Advisory Committee
Notes, 1948 Amendments. If the word “judgment” in Rule 59 includes
a judgment from the Court of Appeals, then the same should be true for
Rule 54. But it is obvious that a district court does not possess the power
to alter or amend a judgment of the Court of Appeals.
The reasons for having a 14-day period also demonstrate that Rule
54 should not apply to a judgment from the Court of Appeals. The most
important reason is that the “14-day period is designed to operate in
conjunction with the 30-day appeal period.” 10 James Wm. Moore’s
Federal Practice § 54.151 (Matthew Bender 3d ed.). “14 days ensures
that the fee opponent has notice of the fee motion prior to the expiration
8

of the time to appeal.” Id.; see Fed.R.Civ.P. 54, Advisory Committee
Notes, 1993 Amendments. But this rationale only applies to a judgment
from a district court. A party that wants to appeal a judgment from the
Court of Appeals has much longer than 30 days to file a petition for a
writ of certiorari to the Supreme Court. Compare Fed. R. App. P.
4(a)(1)(A) (30 days to file notice of appeal) with Sup.Ct. R. 13 (90 days
to file petition for a writ of certiorari). Another reason for the 14-day
period is that “[p]rompt filing affords an opportunity for the court to
resolve fee disputes shortly after trial, while the services performed are
freshly in mind.” Fed.R.Civ.P. 54, Advisory Committee Notes, 1993
Amendments. Again, this rationale only applies to a judgment from a
district court. There are no trials in the Court of Appeals, and a district
court judge will not have “the services performed [on appeal] freshly in
mind.”
Although there is not much relevant case law on this issue, at least
one court has also said that Rule 54 does not apply to a judgment from
the Court of Appeals. See Turic v. Holland Hospitality, No. 94-1424/941467, 1996 U.S.App. LEXIS 25291, at *3 (6th Cir. Sept. 17, 1996)
(unpublished). In Turic, the court characterized Rule 54 as only applying
to a motion “for [attorney] fees accrued at the trial level.” Id. The court
then said that “there appears to be no guidance that addresses the time
frame within which to file a motion for fees accrued for appellate
services.” Id.
Id., at 782-83.
Having made this determination, the court in Dippin’ Dots applied a “general
rule of diligence” to find that a motion for attorney fees which was filed 23 days after
the Court of Appeals issued its mandate, and 9 days after docketing of the mandate in
the district court, was timely. See id., at 783 (stating general rule that “anything within
30 days shows reasonable diligence”). Other courts have followed suit. See, e.g.,
Zoroastrian Ctr. & Darb-E-Mehr of Metro. Washington, D.C. v. Rustam Guiv Found.,
245 F. Supp. 3d 742, 749-54 (E.D. Va. 2017) (“Rule 54(d)(2)(B) of the Federal Rules
of Civil Procedure does not apply to a motion for fees on appeal brought in the district
9

court. For want of an express filing deadline, the Court finds that the Motion for Fees
on Appeal was timely because it was filed within a reasonable time after the last
necessary order resolving the case.”); Howlink Glob. LLC v. Centris Info. Servs., LLC,
No. 4:11CV71, 2015 WL 216773, at *4 (E.D. Tex. Jan. 8, 2015) (stating, “Rule 54
does not apply in cases where fees deal with judgments from the Court of Appeals,”
but finding motion untimely which was not filed until 55 days after the Court of
Appeals’ mandate was docketed in the district court); L.I. Head Start Child Dev.
Servs., Inc. v. Econ. Opportunity Comm’n of Nassau Cty., Inc., No. 00-CV-7394 ADS,
2013 WL 6388633, at *2-5 (E.D.N.Y. Dec. 5, 2013) (finding “consistent with the
Federal Rules of Civil Procedure, which generally apply to district court proceedings,
no part of Rule 54 is applicable to requests for appellate attorneys’ fees” and
concluding that motion for attorney fees filed 2 days after adverse party’s deadline for
filing petition for writ of certiorari elapsed was reasonable).
Another alternative involves a strict application of Rule 54(d)(2), to require all
motions for attorney’s fees, including prospective fees on appeal, to be filed within
14 days after the district court’s judgment is entered. This is approach taken in S. Tex.
Elec. Coop. v. Dresser-Rand Co., No. CIVA V-06-28, 2010 WL 1855959, at *4 (S.D.
Tex. May 5, 2010) (denying post-appeal motion for attorney’s fees where original
motion, filed prior to entry of district court’s judgment, “did not seek appellate
attorneys’ fees, indicate that appellate attorneys’ fees would be sought in the future,
state the amount of any future fees, or provide a fair estimate of any future fees.”); see
JAB Energy Sols. II, LLC v. Servicio Marina Superior, L.L.C., No. CV 13-556, 2016
WL 3746368, at *3 (E.D. La. July 13, 2016) (“[C]ourts in this circuit have explicitly
found that the ripeness issue does not excuse a party from meeting Rule 54’s
requirement that a motion for attorneys’ fees be filed within fourteen days of the
district court’s judgment.”). This approach has been rightly criticized as “plac[ing] an
unreasonable burden on the parties immediately after trial when they may not be
prepared to determine both district court fees and prospective appellate fees.”
Zoroastrian Ctr., 245 F. Supp. 3d at 754.

10

In summary, the court finds that it has jurisdiction to award attorney fees for
work performed on appeal, and that neither Eighth Circuit Local Rule 47C nor Rule
54(d)(2) of the Federal Rules of Civil Procedure places a time limit on the filing of
such a motion. The court therefore will apply a “reasonable diligence” standard. See
JCW Investments, Inc. v. Novelty, Inc., 509 F.3d 339, 342 (7th Cir. 2007) (“In the
absence of a statutory or rule-based deadline [for filing a motion for attorney fees], we
think that a general rule of diligence should govern.”).
Plaintiffs’ motion was filed 7 days after the Court of Appeals’ mandate issued
and was docketed in this court. The court finds that Plaintiffs exercised reasonable
diligence in filing their motion for attorney’s fees related to the appeal. This court
would not have considered the motion while the appeal was pending, and Defendants
are not shown to have been prejudiced in any respect. In fact, the mandate was stayed
as a result of Defendants filing petitions for rehearing.6 See Fed. R. App. P. 41(d)(1)
(“The timely filing of a petition for panel rehearing, petition for rehearing en banc, or
motion to stay execution of mandate, stays the mandate until disposition of the
petition or motion, unless the court orders otherwise.”). Defendants’ petitions for
rehearing en banc and for rehearing by the panel were denied on July 17, 2018 (Filing
696), and the mandate issued 7 days thereafter, as provided in Rule 41(b) of the
Federal Rules of Appellate Procedure. Plaintiffs’ motion is therefore timely with
respect to attorney fees and associated expenses incurred on appeal.

6

Had Defendants not petitioned for rehearing, the mandate would have issued
within 21 days after entry of the Court of Appeals’ judgment if normal procedures
were followed. See Fed. R. App. P. 41(b) (“The court’s mandate must issue 7 days
after the time to file a petition for rehearing expires, .... The court may shorten or
extend the time.”); Fed. R. App. P. 40(a)(1) (“Unless the time is shortened or extended
by order or local rule, a petition for panel rehearing may be filed within 14 days after
entry of judgment.”); Fed. R. App. P. 35(c) (“A petition for a rehearing en banc must
be filed within the time prescribed by Rule 40 for filing a petition for rehearing.”).
11

Plaintiffs’ motion also seeks to recover attorney fees for certain work that was
performed in the district court, including responding to Defendants’ Rule 59 motion
for judgment as a matter of law or for a new trial. Defendants properly object that
Plaintiffs’ pending motion for attorney fees is untimely with respect to such fees.
The court’s order denying Defendants’ Rule 59 motion was a final order, which
was, in fact, appealed. See Filing 621. Under Rule 54(d)(2), Plaintiffs had 14 days
from entry of the order on September 6, 2016, in which to file a motion for attorney
fees associated with the Rule 59 motion. Although Plaintiffs assert this court was
divested of jurisdiction to award any attorney fees once Defendants filed their notice
of appeal on October 5, 2016, this is incorrect. The Eighth Circuit has repeatedly held
that “where the issue of attorney fees is not before the court of appeals ... the district
court may consider it.” Harmon v. United States Through Farmers Home Admin., 101
F.3d 574, 587 (8th Cir. 1996); FutureFuel Chem. Co. v. Lonza, Inc, 756 F.3d 641, 648
(8th Cir. 2014) (“Once a notice of appeal is filed, the district court is divested of
jurisdiction over matters on appeal. However, we have held that a district court retains
jurisdiction over collateral matters, such as attorney’s fees or sanctions, while an
appeal is pending.”) (internal quotation marks and citations omitted); Obin v. Dist. No.
9 of Int’l Ass’n of Machinists & Aerospace Workers, 651 F.2d 574, 583 (8th Cir.
1981) (“[A] claim for attorney’s fees should be treated as a matter collateral to and
independent of the merits of the litigation.”); see also Little Rock Sch. Dist., 127 F.3d
at 696 (“[D]espite our local rule, the district courts retain jurisdiction to decide
attorneys’ fees issues that we have not ourselves undertaken to decide.”); see also
Rule 54(d)(2) Advisory Committee Notes, 1993 Amendment (“ If an appeal on the
merits of the case is taken, the court may rule on the claim for fees, may defer its
ruling on the motion, or may deny the motion without prejudice, directing under
subdivision (d)(2)(B) a new period for filing after the appeal has been resolved.”).7

7

In this case, the court most likely would have endeavored to make a prompt
ruling on the motion.
12

The court therefore will disallow $22,425.00 of claimed attorney fees for 89.7
hours of work performed by Jeffry D. Patterson between August 3 and August 25,
2016, and $9,125.00 of claimed attorney fees for 36.5 hours of work performed by
Maren Lynn Chaloupka during the same period of time.
C. Fee Determination
“The starting point in determining an attorneys’ fee award under § 1988 is the
lodestar, which is calculated by multiplying the number of hours reasonably expended
by reasonable hourly rates.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1159
(8th Cir. 2014). “A reasonable hourly rate is usually the ordinary rate for similar work
in the community where the case has been litigated.” Id.
As was discussed in the court’s previous Memorandum or Order awarding
attorney fees and expenses in this matter, the award belongs to the client, not to his or
her attorney. See Venegas v. Mitchell, 495 U.S. 82, 87 (1990) (“Section 1988 makes
the prevailing party eligible for a discretionary award of attorney’s fees.”) (emphasis
in original). Thus, although Plaintiffs have again submitted a joint motion, only four
Plaintiffs are represented by the same attorneys. These four Plaintiffs will each be
awarded one-fourth of the total allowable fees and expenses for their own attorneys.
The other two Defendants will each be awarded the full amount of allowable fees and
expenses for their respective attorneys. Judgment will be entered accordingly.
Defendants do not contest any of the hourly rates that are set out in Plaintiffs’
fee request.8 In any event, the court finds, as it did previously, that the hourly rates

8

With one exception, the hourly rates charged by Plaintiffs’ attorneys are
unchanged from the rates that the court approved in its previous Memorandum and
Order awarding attorney fees (Filing 313). The one exception is for work performed
by Nathan Stratton, who was admitted to the bar in 2016 after working on this case
as a law clerk. The court finds his hourly rate of $150.00 to be reasonable.
13

claimed are reasonable. Defendants raise only four objections to the number of hours
claimed by Plaintiffs for legal services provided since September 6, 2016.
First, and foremost, Defendants contend that Plaintiffs’ lead counsel, Jeffry D.
Patterson, spent an excessive amount of time reading, indexing, and annotating the
trial transcript (102 hours), and then drafting a responsive brief (106.5 hours).
Considering the length of the transcripts, the nature of the issues raised on appeal, and
the high quality of work performed by Mr. Patterson, the court finds that the number
of hours claimed for these services is reasonable.
Second, Defendants object that Nathan Stratton spent 2.2 hours on October 6,
2016, reviewing appeal documents affidavits, and conferencing with other attorneys,
and also spent 1.0 hour on June 11, 2017, reading an appellate brief. The court finds
the description of services to be sufficient and the hours claimed to be reasonable.
Third, Defendants object to 6.5 hours of time Matthew Kosmicki spent in client
conferences. In view of the fact that Mr. Kosmicki’s client is mentally ill and low
functioning, the court does not find this amount of time to be unreasonable.
Fourth, and finally, Defendants object to billings for clerical work that was
performed by paralegals in Herbert J. Friedman’s office. The court agrees that there
should be no recovery of the $1,413.75 fee claimed for such work. “In calculating
attorneys’ fees, ‘purely clerical or secretarial tasks should not be billed at a paralegal
rate, regardless of who performs them.’” Murray v. Collections Acquisitions,LLC, No.
8:11CV301, 2012 WL 2577211, *2 (D. Neb. 2012)(quoting Missouri v. Jenkins by
Agyei, 491 U.S. 274, 288 (1989)).
In conclusion, the court will award Plaintiffs the following amounts as attorney
fees and expenses:

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James L. Dean (Case No. 4:09CV3144) is represented by Herbert J. Friedman,
who claims total fees and expenses of $12,728.42. After deducting $1,413.75 for
disallowed paralegal work, the court will award this Plaintiff $11,314.67.
Lois P. White, as Personal Representative of the Estate of Joseph White,
Deceased (Case No. 4:09CV3145), Kathleen A. Gonzalez (Case No. 4:09CV3146),
Thomas W. Winslow (Case No. 4:09CV3147), and Ada Joann Taylor (Case No.
4:09CV3148) are all represented by Douglas Stratton, Nathan Stratton, and Jeffry D.
Patterson. The court will award each of these Plaintiffs one-fourth of the $10,210.16
in fees and expenses claimed by Douglas Stratton (or $2,552.54 to each Plaintiff) and
one-fourth of the $4,185.00 in fees claimed by Nathan Stratton (or $1,046.25 to each
Plaintiff). The attorney fees claimed by Mr. Patterson total $147,400.00. As stated
previously, the court will reduce this amount by $22,425.00 for services Mr. Patterson
performed in connection with Defendants’ Rule 59 motion, which leaves a balance of
$124,975.00. Each of these Plaintiffs will be awarded one-fourth of this amount, or
$31,243.75.9 The total amount awarded to each of these four Plaintiffs, for services
performed by their three attorneys, will be $34,842.54.
Deb Shelden (Case No. 4:11CV3099) is represented by Maren Lynn Chaloupka
and Matthew K. Kosmicki. Ms. Chaloupka claims fees and expenses in the amount
of $37,892.08. As stated previously, he court will reduce this amount by $9,125.00 for
services Ms. Chaloupka performed in connection with Defendants’ Rule 59 motion,
which leaves a balance of $28,767.08. The court will award all fees claimed by Mr.
Kosmicki, in the amount of $16,762.50. The total amount awarded to this Plaintiff for
services performed by her two attorneys will be $45,529.58.

9

Because Plaintiff Winslow did not obtain a judgment against Defendant Price,
the attorney fee award for this Plaintiff will only be entered against the other two
Defendants.
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The total amount of attorneys fees and related non-taxable expenses awarded
to all Plaintiffs as a result of the pending motion is $181,819.25, which the court finds
to be fair and reasonable under all the circumstances of this case, in which Plaintiffs’
counsel successfully defended a hard-fought, multi-million dollar jury verdict.
II. Plaintiffs’ Motion for Review of Clerk’s Denial
On July 25, 2018, Plaintiffs filed a Bill of Costs (Filing 698) seeking to recover
$3,056.70 for the cost of trial transcripts in this matter. Defendants filed an Objection
on August 8, 2018 (Filing 706).10
On August 24, 2018, the clerk of the court entered an Order (Filing 711)
denying the Bill of Costs. On August 27, 2018, Plaintiffs filed a Motion (Filing 713)
for review of the clerk’s Order.11 On September 10, 2018, Defendants filed an
Objection (Filing 718).12
Upon de novo review, the court finds that the clerk’s Order should be set aside,
and that Plaintiffs’ Bill of Costs should be granted.
Following an appeal, the district court is authorized to tax the cost of “the
reporter’s transcript, if needed to determine the appeal.” Fed. R. App. P. 39(e)(2)
(emphasis supplied). Defendants make a plausible argument that Plaintiffs’ copy of
10

Defendants have raised no objection to the timeliness of the Bill of Costs.

11

“The clerk may tax costs on 14 days’ notice. On motion served within 7 days,
the court may review the clerk’s action.” Fed. R. Civ. P. 54(d)(1).
12

Although designated as an “objection,” Filing 718 is actually an opposing
brief. See NECivR 7.1(b)(1)(A) (“The party opposing a motion must not file an
‘answer,’ ‘opposition,’ ‘objection,’ or ‘response,’ or any similarly titled responsive
filing. Rather, the party must file a brief that concisely states the reasons for opposing
the motion and cites to supporting authority.”).
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the transcript was not “needed to determine the appeal” because Defendants had
already ordered a complete transcript in connection with the filing of their notice of
appeal. See Filing 625.13
However, Defendants interpret this language too narrowly. Although there is
very little case law construing Rule 39(e), the court believes a transcript is “needed”
whenever the issues raised on appeal require reference to the transcript for their
determination. Cf. Lochridge v. Lindsey Mgmt. Co., No. 5:12-CV-5047, 2016 WL
6780330, at *6 (W.D. Ark. Nov. 15, 2016) (“Here, the Court finds that the trial
transcript was not needed, as the Eighth Circuit’s Opinion (Doc. 373-2) did not rely
on it in any respect, and only focused on a pure issue of law.”).
In such a case, it is not unreasonable for the appellees to order a transcript of
courtroom proceedings for use in briefing and oral argument on appeal, nor is it unfair
that the cost of such a transcript should be taxed as costs to the appellant if the appeal
proves unsuccessful. See Choice Hotels Int’l, Inc. v. Kaushik, 203 F. Supp. 2d 1281,
1286 (M.D. Ala. 2002) (prevailing appellee was entitled to recover cost for copy of
trial transcript, ordered in addition to transcript appellant had ordered as part of record
on appeal; appeal went to whether judgment was supported by evidence, and thus
transcript became integral component of appeal and of preparation for that
appeal);Volkswagenwerk Aktiengesellschaft v. Church, 413 F.2d 1126, 1128 (9th Cir.
1969) (“The cost of procuring a copy of the reporter’s transcript for the use of counsel
is a necessary cost within the meaning of [former] Rule 39(e).”).
In this case, the issues raised and decided on appeal were extremely factintensive. The court therefore concludes that a complete transcript was “needed to
determine the appeal,” within the meaning of Rule 39(e), and that Plaintiffs’ Bill of
13

The transcript was filed in this court on December 6, 2016 (Filings 666
through 686), and an electronic copy was forwarded the Court of Appeals on
December 29, 2016 (Filing 688).
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Costs should be granted for the full amount requested, $3,056.70. Because the Bill of
Costs was filed on behalf of all Plaintiffs, the court will enter judgment jointly in favor
of Plaintiffs for this taxable cost item.
III. Conclusion
The court has jurisdiction to award attorney fees and related non-taxable
expenses for appellate work, and Plaintiffs’ motion was timely filed with respect to
such fees and expenses. However, Plaintiffs’ motion was not filed in a timely manner
with respect to certain services that were performed in the district court. Also, certain
paralegal work related to the appeal is not reimbursable. Finally, Plaintiffs are entitled
to have the reporter’s fee for Plaintiffs’ copy of the trial transcript taxed as costs.
IT IS THEREFORE ORDERED:
1.

Plaintiffs’ Application for Attorneys’ Fees and Costs (Filing 700) is
granted in part, and denied in part, as follows:
a.

Plaintiff James L. Dean (Case No. 4:09CV3144) shall recover
from Defendants Burdette Searcey, Wayne Price, and Gage
County, jointly and severally, the sum of $11,314.67.

b.

Plaintiff Lois P. White, as Personal Representative of the Estate
of Joseph White, Deceased (Case No. 4:09CV3145), shall recover
from Defendants Burdette Searcey, Wayne Price, and Gage
County, jointly and severally, the sum of $34,842.54.

c.

Plaintiff Kathleen A. Gonzalez (Case No. 4:09CV3146) shall
recover from Defendants Burdette Searcey, Wayne Price, and
Gage County, jointly and severally, the sum of $34,842.54.

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d.

e.

Plaintiff Ada Joann Taylor (Case No. 4:09CV3148) shall recover
from Defendants Burdette Searcey, Wayne Price, and Gage
County, jointly and severally, the sum of $34,842.54.

f.

Plaintiff Deb Shelden (Case No. 4:11CV3099) shall recover from
Defendants Burdette Searcey, Wayne Price, and Gage County,
jointly and severally, the sum of $45,529.58.

g.
2.

Plaintiff Thomas W. Winslow (Case No. 4:09CV3147) shall
recover from Defendants Burdette Searcey and Gage County,
jointly and severally, the sum of $34,842.54.

In all other respects, the Application is denied.

Upon consideration of Plaintiffs’ Motion for Review of the Clerk’s
Denial of Plaintiffs’ Bill of Costs (Filing 713):
a.

b.

Defendants’ Objection (Filing 718) is denied.

c.

3.

The clerk’s order (Filing 711) denying Plaintiffs’ Bill of Costs is
set aside and vacated.

Plaintiffs’ Bill of Costs (Filing 698) is granted, and Plaintiffs,
jointly, shall recover from Defendants Burdette Searcey, Wayne
Price, and Gage County, jointly and severally, the sum of
$3,056.70 as taxable costs.

Judgment will be entered by separate document.

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September 14, 2018.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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