Petrone v. Werner Enterprises, Inc. et al
MEMORANDUM AND ORDER - Plaintiffs' Motion for Partial Judgment as a Matter of Law, Motion for New Trial, and Motion to Amend the Judgment, ECF No. 551 in Case No. 8:11CV401; ECF No. 451 in Case No. 8:12CV307, is denied. Plaintiffs' Moti on for Attorney's Fees and Costs under 29 U.S.C. § 216(b) and Motion for Service Payments for Named Plaintiffs, ECF No. 554 in Case No. 8:11CV401; ECF No. 454 in Case No. 8:12CV307, is granted as follows: Plaintiffs are awarded $33 7,293.69 in attorney's fees; Plaintiffs are awarded $133,276.63 in nontaxable costs and expenses; and Named Plaintiffs are awarded service payments of $10,000 each, totaling $40,000, to be paid from unclaimed funds of the verdict, or, if the amount of unclaimed funds cannot cover the service payments, to be paid from Plaintiffs' counsel's fee award. Member Cases: 8:11-cv-00401-LSC-MDN, 8:12-cv-00307-LSC-MDN Ordered by Chief Judge Laurie Smith Camp. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PHILIP PETRONE, et al.,
MEMORANDUM AND ORDER
WERNER ENTERPRISES, INC., AND
DRIVERS MANAGEMENT, LLC;
PHILIP PETRONE, et al.;
WERNER ENTERPRISES, INC., AND
DRIVERS MANAGEMENT, LLC,
This matter is before the Court on Plaintiffs’ Motion for Partial Judgment as a
Matter of Law, Motion for New Trial, and Motion to Amend the Judgment, ECF No. 551
in Case No. 8:11CV401; ECF No. 451 in Case No. 8:12CV307. Also before the Court is
Plaintiffs’ Motion for Attorney’s Fees and Costs under 29 U.S.C. § 216(b) and Motion for
Service Payments for Named Plaintiffs, ECF No. 554 in Case No. 8:11CV401; ECF No.
454 in Case No. 8:12CV307. For the reasons stated below, the Motion for Attorney’s
Fees and Costs will be granted, consistent with this Memorandum and Order. The
Motion for Partial Judgment as a Matter of Law, Motion for New Trial, and Motion to
Amend the Judgment will be denied.1
The Court’s previous orders contain a detailed recitation of the procedural and
historical background of this case. By way of summary, the Court states the following:
(collectively “Werner”) operate an eight-week Student Driver Program as part of the
training for new truck drivers. Plaintiffs filed this class action lawsuit seeking
compensation for unpaid wages allegedly earned during off-duty time spent on short
rest breaks and in their trucks’ sleeper berths. In May 2017, the Court held a jury trial on
the issue of damages for Plaintiffs’ short rest break claims and liability on Plaintiffs’
sleeper berth claims. Following the three-day trial, the jury awarded $779,127.00 in
damages on Plaintiffs’ short rest break claims, an amount equal to those calculated by
Plaintiffs’ expert. See Jury Verdict, ECF No. 516, Page ID 43269. The jury found that
Plaintiffs failed to demonstrate that Werner required or allowed Plaintiffs to work during
time logged in the sleeper berth in excess of eight hours each 24-hour period. Id. at
Page ID 43270.
Plaintiffs move to alter or amend the Judgment, ECF No. 545, arguing that the
jury’s verdict and eventual judgment was based on an erroneous legal standard.
Specifically, Plaintiffs request an Order granting Plaintiffs’ partial judgment as a matter
of law under Fed. R. Civ. P. 50 as to the compensability of sleeper berth time and 59(a),
Because the Motions and related documents are identical in both cases, the Court will omit
reference to the ECF filing numbers in Case No. 8:12cv307. Unless otherwise indicated, all references to
the record before the Court will be to filings in Case No. 8:11cv401.
and/or in the alternative, a partial new trial on Plaintiffs’ sleeper berth claims pursuant to
Fed. R. Civ. P. 59(a), and an amendment to the judgment pursuant to Fed. R. Civ. P.
Plaintiffs also seek $2,192,500.00 in attorney’s fees; $201,465.75 in nontaxable
costs; and an award for Named Plaintiffs’ service in the amount of $10,000 each,
totaling $40,000, to be paid from unclaimed funds of the verdict, or, if the amount of
unclaimed funds cannot cover the service payments, to be paid from Plaintiffs’ counsel’s
MOTION FOR PARTIAL JUDGMENT AS A MATTER OF LAW
I. Standard of Review
Federal Rule of Civil Procedure 50(a) states that “[a] motion for judgment as a
matter of law may be made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts that entitle the movant
to the judgment.” If a court does not grant a motion for judgment as a matter of law
made at trial under Rule 50(a), it may consider a renewed motion after the entry of a
final judgment under Rule 50(b). “A court reviewing a Rule 50(b) motion is limited to
consideration of only those grounds advanced in the original, Rule 50(a) motion.”
Nassar v. Jackson, 779 F.3d 547, 551 (8th Cir. 2015) (citing Graham Constr. Servs. v.
Hammer & Steel Inc., 755 F.3d 611, 617-18 (8th Cir. 2014)). Judgment as a matter of
law is appropriate “[i]f a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.” Fed. R. Civ. P. 50(a)(1).
“In both Rule 56 motions for summary judgment and Rule 50 motions for
judgment as a matter of law, the inquiry is the same: ‘[W]hether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’” Linden v. CNH America, LLC, 673 F.3d 829,
834 (8th Cir. 2012) (alteration in original) (quoting Kinserlow v. CMI Corp., 217 F.3d
1021, 1025 (8th Cir. 2000)). “To sustain an entry of judgment as a matter of law, ‘[t]he
evidence must point unswervingly to only one reasonable conclusion. This demanding
standard reflects our concern that, if misused, judgment as a matter of law can invade
the jury’s rightful province.’” Penford Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA,
662 F.3d 497, 503 (8th Cir. 2011) (quoting Phillips v. Collings, 256 F.3d 843, 847 (8th
Plaintiffs’ Motion for Judgment as a Matter of Law must be denied because it was
not raised before the case was submitted to the jury. As stated above, “[a] court
reviewing a Rule 50(b) motion is limited to consideration of only those grounds
advanced in the original, Rule 50(a) motion.” Nassar, 779 F.3d at 551; The Eighth
Circuit has repeatedly concluded that post-trial motions under Rule 50(b) may not be
considered unless a litigant made a pre-verdict motion under Rule 50(a). See Graham
Constr. Servs. v. Hammer & Steel Inc., 755 F.3d 611, 618 (8th Cir. 2014) (“Graham did
not move for [judgment as a matter of law] as to H&S’s claim for breach of contract until
after the verdict through a Rule 50(b) motion. Graham’s failure to raise this challenge in
a Rule 50(a) motion waived the opportunity to raise it after trial.”); Canny v. Dr.
Pepper/Seven-Up Bottling Grp., Inc., 439 F.3d 894, 901 (8th Cir. 2006) (“A post-trial
motion for judgment can be granted only on grounds advanced in the pre-verdict
motion.”); Walsh v. National Computer Systems, Inc., 332 F.3d 1150, 1158 (8th Cir.
2003) (stating that “a post-trial motion for judgment may not advance grounds that were
not raised in the pre-verdict motion.”).
Plaintiffs request that the Court conclude, as a matter of law, that all sleeper
berth time beyond 8 hours per day logged by the drivers in the class constitutes hours
worked for purposes of their FLSA claims. However, because Plaintiffs did not make a
Rule 50(a) motion at trial regarding their sleeper berth claims, they may not now make a
motion under Rule 50(b). After Plaintiffs rested, the Court specifically asked the parties
whether they would like to make any motions. Trial Transcript Vol. III at 587, ECF No.
548, Page ID 55952. Plaintiffs did not make any motions at that time. After both parties
rested, the Court once again invited the parties to make motions before the case was
submitted to the jury. Id. at 603, Page ID 55969. At that point, Plaintiffs moved for
judgment as a matter of law as to the damages owed on the short rest break claim,
which the Court denied. Id. at 603-04, Page ID 55968-69. Plaintiffs did not make any
motions regarding their sleeper berth claims. Because Plaintiffs did not make a preverdict motion under Rule 50(a) regarding their sleeper berth claims, the Court cannot
consider their renewed motion under Rule 50(b).
Although Plaintiffs did not make a motion under Rule 50(a) for their sleeper berth
claims, they argue that the Court should nevertheless consider their motion under Rule
50(b) because it concerns only legal matters. Plaintiffs cite no direct authority for the
position that purely legal arguments under Rule 50(b) may be considered even absent a
pre-verdict motion, and Plaintiffs’ policy arguments do not overcome the express
language of Rule 50 and Eighth Circuit case law. Accordingly, Plaintiffs’ Rule 50(b)
motion is not preserved by the fact that it is a purely legal question.
MOTION FOR NEW TRIAL/ALTER OR AMEND JUDGMENT
I. Standards of Review
A. Motion For New Trial Under Rule 59(a)
“A new trial may be granted on all or some issues ‘after a jury trial, for any reason
for which a new trial has heretofore been granted in an action at law in federal court.’”
Stults v. Am. Pop Corn Co., 815 F.3d 409, 414 (8th Cir. 2016) (quoting Fed.R.Civ.P.
59(a)(1)(A)). A new trial may be granted when the first trial resulted in a miscarriage of
justice, the verdict was against the weight of the evidence, the damages award was
excessive, or there were legal errors at trial. Gray v. Bucknell, 86 F.3d 1472, 1480 (8th
Cir.1996); see also Fed. R. Civ. P. 59(a). “With respect to legal errors, a ‘miscarriage of
justice’ does not result whenever there are inaccuracies or errors at trial; instead, the
party seeking a new trial must demonstrate that there was prejudicial error. Trickey v.
Kaman Indus. Techs. Corp., 705 F.3d 788, 807 (8th Cir. 2013) (citation omitted). “The
standard for granting a motion for new trial is higher [than the standard for granting a
motion for judgment as a matter of law.]” Michigan Millers Mut. Ins. Co. v. Asoyia, Inc.,
793 F.3d 872, 878 (8th Cir. 2015) (quoting Howard v. Mo. Bone & Joint Ctr., Inc., 615
F.3d 991, 995 (8th Cir. 2010)). “The key question is whether a new trial should have
been granted to avoid a miscarriage of justice.” Id. (citation omitted).
B. Motion to Alter or Amend Under rule 59(e)
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law
or fact or to present newly discovered evidence.’” United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home Health Care v.
P. T.-O. T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Such
motions cannot be used to introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to entry of judgment.” Id.
(internal quotation marks omitted) (quoting Innovative Home Health Care v. P. T.-O. T.
Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)).
Plaintiffs’ principal argument is that the Court erred in its previous rulings on
Plaintiffs’ sleeper berth claims.2 Plaintiffs even characterize their requested relief as
“essentially, the reinstatement of Judge Strom’s order [the SJ Order] finding excess
sleeper berth time compensable as a matter of law.” Pl. Reply at 4, ECF No. 563, Page
ID 56660. Each of Plaintiffs’ grounds to partially alter or amend the judgment and/or to
grant a new trial is based on their argument that the Court’s ruling with respect to the
sleeper berth claims was legally incorrect. As a consequence, Plaintiffs argue, the
Court’s rulings in pretrial motions and jury instructions prejudiced Plaintiffs.
Specifically, Plaintiffs state that the Court made the following errors: (1) the Court’s pretrial
summary judgment rulings set forth an erroneous legal standard regarding Plaintiffs’ sleeper berth claims;
(2) the Court failed to enter an order stating that sleeper berth time in excess of 8 hours per day is
compensable, or presumptively compensable, as a matter of law and should have ordered a new trial to
resolve whether Werner paid Plaintiffs a minimum wage; (3) the Court’s rulings and instructions during the
trial were based on the Court’s erroneous pretrial rulings on Plaintiffs’ sleeper berth claims; (4) the Court
erroneously required Plaintiffs to prove that they were continuously on duty during time logged in the
sleeper berth; (5) the Court’s motions in limine were based on the Court’s erroneous pretrial rulings on
Plaintiffs’ sleeper berth claims; (6) the Court failed to give jury instructions Plaintiffs requested regarding
its sleeper berth claims; (7) the Court adopted Werner’s proposed instructions that were based on an
incorrect legal standard with respect to the sleeper berth claims; and (8) the jury instructions contained
inaccurate statements of the law regarding the sleeper berth claims.
See Motion for Partial
Judgment/New Trial, ECF No. 551.
Regardless of whether Plaintiffs have waived their arguments,3 there has been
no miscarriage of justice that justifies amending the judgment and/or granting a new
trial. Plaintiffs made similar, if not identical, arguments with respect to their sleeper
berth claims in their opposition to Werner’s Motion to Revise and Werner’s Motion to
Clarify. The Court considered Plaintiffs’ arguments and stated its ruling and reasoning in
several pretrial orders. See, e.g., Revised Order at 14-17, ECF No. 405, Page ID
42147-50; Clarification Order at 5-6, ECF No. 466, Page ID 42722-23. Plaintiffs present
no argument that the Court has not already considered and analyzed. Thus, Plaintiffs
essentially ask the Court to reconsider its ruling once again. The Court has reviewed the
record—including Plaintiffs’ arguments in this Motion and in previous motions—and
concludes that its previous rulings on Plaintiffs’ sleeper berth claims were not manifestly
erroneous. Accordingly, the Court’s rulings related to Plaintiffs’ sleeper berth claims,
including its rulings on the jury instructions, did not result in prejudicial error.
MOTION FOR ATTORNEY’S FEES AND COSTS
Plaintiffs seek $2,192,500.00 in attorney’s fees and $199,512.314 in nontaxable
costs. Plaintiffs also ask the Court to award Named Plaintiffs service payments of
$10,000 each, totaling $40,000, to be paid from unclaimed funds of the verdict, or, if the
amount of unclaimed funds cannot cover the service payments, to be paid from
Plaintiffs’ counsel’s fee award. Werner did not oppose Plaintiffs’ request for service
payments, and they will be awarded as requested. The Court will award Plaintiffs’
attorney’s fees and nontaxable costs; however, for the reasons stated below, Plaintiffs’
Werner argues that Plaintiffs have waived these arguments by not specifically addressing them
Plaintiffs originally sought $201,465.75, but revised the request downward in their Reply Brief.
See ECF No. 565, Page ID 56701.
requested award will be adjusted to reflect a reasonable award under the circumstances
of this case.
I. Attorney’s Fees
The FLSA only authorizes an award of fees to a plaintiff who has prevailed in the
litigation. See 29 U.S.C. § 216(b). Whether a litigant is a “prevailing party” is a legal
question. Warner v. Indep. Sch. Dist. No. 625, 134 F.3d 1333, 1336 (8th Cir. 1998);
Jenkins v. State of Missouri, 127 F.3d 709, 714 (8th Cir. 1997) (en banc). In Farrar v.
Hobby, 506 U.S. 103, 111-12 (1992),5 the Supreme Court held that “a plaintiff ‘prevails’
when actual relief on the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a way that directly benefits
the plaintiff.” The relief may take the form of an enforceable judgment, a consent
decree, or a settlement. Id. at 111. The term “prevailing party” is generously
defined, and whether a party prevailed does not turn on the magnitude of the plaintiff’s
success. Id. at 114.
In this case, it is undisputed that Plaintiffs prevailed on their short rest break
claims. On August 3, 2015, the Court granted Plaintiffs’ motions for summary judgment
on their short rest break claims. ECF No. 347. At trial, Plaintiffs obtained a verdict for
the full amount claimed as damages for their short rest break claims. Together with the
post-trial liquidated damages award, Plaintiffs are entitled to an amount slightly over
$829,000.00. Accordingly, Plaintiffs were prevailing parties under the FLSA, and are
entitled to an award of their reasonable attorney’s fees.
Although Farrar is not a FLSA case, the Eighth Circuit has stated that “[d]ecisions construing
this term in the civil rights fee-award statute, 42 U.S.C. § 1988, ‘are generally applicable in all cases in
which Congress has authorized an award of fees to a prevailing party.’” Warner, 134 F.3d at 1336
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)).
Although Plaintiffs are prevailing parties, the Court must determine what is a
reasonable award. “The most useful starting point for determining the amount of a
reasonable fee is the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.” Miller v. Dugan, 764 F.3d 826, 830-31 (8th Cir. 2014)
(internal citations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 & 437
(1983)); see also Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002) (“The
starting point in determining attorney fees is the lodestar, which is calculated by
multiplying the number of hours reasonably expended by the reasonable hourly rates.”).
“[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Miller, 764 F.3d at 831
(quoting Hensley, 461 U.S. at 437).
The Court has reviewed the record and concludes that Plaintiffs are entitled to an
award of attorney’s fees. However, the fee award must be adjusted to reflect reasonable
Omaha rates and reasonable expenditures of time under the circumstances of this
case. Plaintiffs are also entitled to a significant award of nontaxable costs, but that
amount must also be adjusted to reflect reasonable expenses.
A. Reasonableness of Rates
Plaintiffs have not demonstrated that Philadelphia rates should apply, and the
requested rates must be adjusted to the Omaha market. “[T]he lodestar looks to ‘the
prevailing market rates in the relevant community.’” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 551 (2010) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984). To
determine what would qualify as a reasonable rate in the prevailing Omaha market, the
court reviewed and analyzed reported decisions from this court over the past several
years involving attorney fee awards. Bernbeck v. Gale, No. 8:13CV228, 2015 U.S. Dist.
LEXIS 45837, at *6 (D. Neb. Apr. 8, 2015), vacated on other grounds by 829 F.3d 643,
644 (8th Cir. 2016).6 “When determining reasonable hourly rates, district courts may
rely on their own experience and knowledge of prevailing market rates.” Hanig v. Lee,
415 F.3d 822, 825 (8th Cir. 2005).
Plaintiffs argue that Philadelphia rates are appropriate because this case was a
complex, national FLSA class action and Omaha counsel with appropriate expertise
could not be located. In the alternative, Plaintiffs argue that if Omaha rates must apply,
the Court should adopt the rates set forth in the Affidavit of Omaha attorney Christopher
Welsh. See ECF No. 556-2. For the reasons stated below, out-of-state rates are not
appropriate in this case and the Court will adopt reasonable Omaha rates.
1. Exceptions to the Local Rates Rule
Plaintiffs assert that the reasonable rates for their counsel are: $525/hour for
Richard Swartz; $500/hour for Justin Swidler; $500/hour for Thomas Sweeney;
$450/hour for Joshua Boyette; and $375/hour for Daniel Horowitz. However, Plaintiffs
have not demonstrated that an exception to the local rates rule applies to this case.
Plaintiffs have not shown that a local attorney would be unwilling or unable to take this
Although not expressly discussed, in determining the reasonable rate the Court has considered
the factors outlined in Johnson v Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir 1974).
See McDonald v Armontrout, 860 F.2d 1456, 1459 (8th Cir 1988). The factors include: (1) the time and
labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation,
and ability of the attorney; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. McDonald, 860 F.2d at 1459
case. Nor have they shown that, due to their expertise, Plaintiffs’ counsel would
progress the case more quickly and efficiently.
“Reimbursement for work performed by out-of-town lawyers charging out-of-town
rates is generally permitted only when in-town counsel with expertise in a particular area
cannot be located.” Powers v. Credit Mgmt. Servs., No. 8:11CV436, 2016 U.S. Dist.
LEXIS 164362, at *7 (D. Neb. Nov. 29, 2016) (citing Avalon Cinema Corp. v. Thompson,
689 F.2d 137, 140-41 (8th Cir. 1982)); see also Emery, 272 F.3d at 1048 (“In a case
where the plaintiff does not use local counsel, the court is not limited to the local hourly
rate if the plaintiff has shown that, in spite of his diligent, good faith efforts, he was
unable to find local counsel able and willing to take the case.”).
In this case, Plaintiffs assert that they would not have been able to find a suitable
Omaha attorney to take this case. In support, they offer the testimony of Christopher
Welsh, who asserts that that he “is not aware of a Nebraska-based law firm” that would
have litigated this case. Id. ¶ 5, ECF No. 556-2, Page ID 56509. Welsh’s statement
does not provide adequate foundation for Plaintiffs’ contention that no local firms were
willing and able to take the case. Plaintiffs do not address whether other local firms
were consulted on the case, and no evidence suggests Plaintiffs were unable to find
Because Plaintiffs have not shown that local counsel was unable or
unwilling to take this case, this exception to the local rate rule does not apply.
It is also recognized that “attorneys specializing in complex areas of the law may
be entitled to a higher, non-local rate because the attorneys’ familiarity with law will
enable them to handle the case in a shorter time period than local counsel.” Shirt v.
Hazeltine, 2006 U.S. Dist. LEXIS 42206, at *7-8 (D.S.D. June 22, 2006) (citing Planned
Parenthood, Sioux Falls Clinic v. Miller, 70 F.3d 517, 519 (8th Cir. 1995)). “To limit rates
to those prevailing in a local community might have the effect of limiting civil rights
enforcement to those communities where the rates are sufficient to attract experienced
counsel.” Casey v. City of Cabool, Mo., 12 F.3d 799, 806 (8th Cir. 1993).
As noted above, Plaintiffs have not shown that local counsel was lacked the
expertise to handle this case. Further, there is no evidence that the case moved more
efficiently because of Plaintiffs’ lawyers expertise. While Plaintiffs’ counsel proved
effective in representing their clients’ interests, this case proceeded for nearly seven
years. While Plaintiffs were by no means solely responsible for the prolonged litigation,
there is no evidence that their counsel’s expertise proved more efficient than local
counsel. Accordingly, the Court will apply local rates.
2. Reasonable Omaha Rates
Although Plaintiffs assert that Philadelphia rates apply, in the alternative, they set
forth the rates they believe are reasonable for this market. As evidence of the
reasonableness of these rates, Plaintiffs again refer to the Affidavit of Christopher
Welsh who opines that reasonable Omaha rates would be $425/hour for Swartz;
$395/hour for Swidler; $395/hour for Sweeney; $350/hour for Boyette; and $300/hour
The Court concludes that these rates are unreasonably high for the Omaha
market. A survey of recent cases in this district demonstrates that the rates requested
by Plaintiffs are higher than the prevailing rates in the Omaha community for attorneys
with comparable experience. This Court has generally approved rates of between $225$325/hour for partners with less than 25 years of experience and rates of $175-$200 for
work done by associates. For example, in Vallejo v. Amgen, Inc., No. 8:14CV50, 2017
U.S. Dist. LEXIS 115749, at *25-26 & n.3 (D. Neb. May 30, 2017), Judge Zwart rejected
a rate of $375.00/hour for an Omaha attorney and instead awarded a flat rate of
$275.00 per hour “[b]ased upon the prevailing market rate and after reducing
duplication.” In Powers v. Credit Mgmt. Servs., No. 8:11CV436, 2016 U.S. Dist. LEXIS
164362, at *10 (D. Neb. Nov. 29, 2016), Judge Rossiter awarded hourly rates of $375
for a Chicago attorney with 43 years of experience, $350/hour for an Omaha attorney
with 25 years of experience, and $325/hour for an Omaha attorney with 23 years of
experience, “in view of their skill and experience and in view of the complexity of classaction consumer litigation.” Id. Similarly, Judge Strom refused to award $450/hour to a
Chicago attorney with 41 years of experience, noting “an hourly rate of $450 is out of
line with rates in this locality, although they may be appropriate in Chicago and similar
cities,” and instead reduced his rate to $325/hour. Henggeler v. Brumbaugh &
Quandahl, P.C., No. 8:11CV334, 2014 U.S. Dist. LEXIS 24405, at *13-14 (D. Neb. Feb.
See also, e.g., Argenyi, No. 8:09CV341, 2014 U.S. Dist. LEXIS 63726, at *7-8 (concluding that
the requested hourly rate of one out-of-town attorney should be reduced from $300 to $250 based on the
attorney’s limited experience (7 years)); Bowen v. Allied Prop. & Cas. Ins. Co., No. 4:11CV3163, 2013
U.S. Dist. LEXIS 33174, at *5 (D. Neb. Mar. 11, 2013) (concluding that amounts $275, $210, and $175
were found to be reasonable rates for attorneys of varying experience, with the associates receiving less);
Johnson v. United of Omaha Life Ins. Co., No. 8:11CV296, 2013 U.S. Dist. LEXIS 185375, (D. Neb. July
5, 2013) (holding that rates of $340 and $350 an hour were reasonable for attorneys with 30 years of
experience or specialized expertise); Doe v. Neb. State Patrol, No. 8:09cv456, 2012 U.S. Dist. LEXIS
181029, at *22-24 (D. Neb. Dec. 21, 2012) (collecting cases to conclude that fees between $200 to $300
to be a reasonable market rate in Nebraska); United States v. $104,160.00 in U.S. Currency, No.
8:08CV463, 2009 U.S. Dist. LEXIS 106968, at *2 (D. Neb. Nov. 17, 2009) (holding that $200 hourly rate
for experienced Omaha attorney representing claimant in civil forfeiture action was reasonable in this
locality); Sheriff v. Midwest Health Partners, P.C., No. 8:07CV475, 2009 U.S. Dist. LEXIS 91786, at 10 (D.
Neb. Sep. 16, 2009) (concluding that in Title VII action, Omaha attorneys’ hourly rates of between $200
and $300 appeared consistent with hourly rates in relevant market based on evidence in record).
Swartz has 20 years of experience, Sweeney has 18 years of experience, and
Swidler has 11 years of experience. Boyette graduated law school in 2010 and Horowitz
graduated law school in 2009. Based upon this Court’s previous holdings and its own
experience and knowledge of the local rate, the Court concludes that it will apply the
following rates to Plaintiffs’ counsel: $325/hour for Swartz; $275/hour for Swidler;
$275/hour for Sweeney; $200/hour for Boyette; and $200/hour for Horowitz.
Accordingly, based on a review of the Fee Itemization Worksheet,8 the lodestar for
Plaintiffs’ requested attorney’s fees is as follows:
B. Hours Expended
Having determined the reasonable rates, the Court must also determine whether
Plaintiffs’ requested hours were reasonable. In assessing a fee calculation, courts must
exclude hours that were not “reasonably expended.” Hensley, 461 U.S. at 434. The
Court has reviewed Plaintiffs’ evidence and concludes it must reduce the total award to
reflect hours that were duplicative, unnecessary, or unrelated to Plaintiffs’ successful
claim. The Court also concludes that an enhancement is not appropriate in this case.
The Fee Itemization Worksheet appears at ECF No. 556-1, Page ID 56206-18. The table
contains nearly 1,000 entries, written in 4.5 font. To properly analyze the requested entries, the Court
exported the Fee Itemization to a separate, workable spreadsheet. Although the workable spreadsheet
contained the same data, the Court was unable to reconstruct the page numbering in the document.
Accordingly, citations to the Fee Itemization will omit page numbering.
1. Excessive, Duplicative or Unnecessary Work
a. Erroneous Time Entries
Plaintiffs’ Fee Itemization contains a time entry for 45 hours for a single attorney
on September 25, 2012, for which counsel seeks $22,500.00 in fees. The only
description given for that 45-hour time entry is “Filed Class Cert.” The Fee Itemization
reflects that the same attorney also recorded 10.9 hours on the same day in doing other
work on this case—a total of 55.9 hours in a single day. Another time entry for the
same attorney includes an entry for 35 hours on August 18, 2015. Counsel for Plaintiffs
acknowledged the error as typographical and voluntarily withdrew both entries from its
requested award. Therefore, the award will be reduced accordingly.
b. Hours Claimed for Second Deposition of Richard Kroon
The Court will reduce the number of hours claimed for the second deposition of
Plaintiffs’ expert, Richard Kroon. Werner’s counsel first deposed Kroon in March 2014.
ECF No. 304-2. During Kroon’s first deposition, Werner identified several errors in
Kroon’s calculations that, even under Plaintiffs’ theory of the case, resulted in
overstated and inaccurate damage calculations. Memorandum and Order at 2-3, ECF
No. 275, Page ID 17456-57. Ultimately, Kroon admitted “the formulas and the
computations [he] performed . . . don’t consistently provide accurate results or reliable
results[.]” First Kroon Depo. at 209:2-7, ECF No. 304-2.
Shortly before the fact
discovery deadline, Plaintiffs sought to name an additional damages expert and file a
supplementary report from Kroon. The Court denied the request to name a new expert,
but permitted Plaintiffs to file a supplementary report. The Court stated:
As of the filing of Plaintiffs’ Motion, more than two months had passed
since Plaintiffs’ expert deadline, defendants had spent time analyzing the
original report, and defendants had deposed plaintiffs’ expert; the deadline
for submitting Daubert motions was only a month away. Plaintiffs are
seeking to impose on defendants to delay the progression of the case and
to duplicate work they had already done so plaintiffs could take advantage
of defendants’ diligence in finding errors in the report of plaintiffs’ own
expert. The unfairness of such a maneuver and imposition of additional
costs is not harmless.
Memorandum & Order, at 5, ECF No. 275, Page ID 17459. The Court therefore ordered
that “Defendants shall be given the opportunity to depose Plaintiffs’ expert [a second
time] at plaintiffs’ expense[.]” Id. at 6, Page ID 17460.
Plaintiffs now argue that the Court’s reference to “expense” referred only to the
costs associated with the second deposition. However, the Court was clear that the
order granting a supplemental report and a second deposition resulted from the errors
in Kroon’s original report. The Court will not award a fee for hours spent preparing for
and defending this deposition. Accordingly, the award must be reduced by 74.8 hours.
The Court will also reduce the award for hours related to Plaintiffs’ motion to
modify the progression order and file Kroon’s supplemental report. See ECF No. 234. At
the time of the filing of the Motion to Modify, the deadline for motions for summary
judgment and to decertify the class were less than two months away. Accordingly,
before the Court could rule on the Motion to Modify, both parties filed motions for
summary judgment and Werner filed a motion to decertify the class and a Daubert
motion. See ECF Nos. 247, 248, 253, 256, 259, 263, 264, and 269. In ruling on the
Motion to Modify and granting Plaintiffs the opportunity to file a supplemental report, the
Court denied as moot the motions for summary judgment, motion to decertify the class,
and the Daubert motion. See ECF No. 275. After the Court set a new scheduling order,
the parties later filed new Daubert briefs and new summary judgment motions. ECF
Nos. 302-308 and 316-323.
Plaintiffs request fees for 60.9 hours spent opposing Werner’s original Daubert
motion, 86.2 hours spent on their initial summary judgment brief, 67.9 hours opposing
Werner’s original decertification motion, and 48 hours spent opposing Werner’s original
summary judgment. Each of these motions was denied as moot because of the untimely
request to supplement Kroon’s report and correct his methodological errors. See ECF
No. 275, Page ID 17456. Accordingly, the Court will reduce Plaintiffs’ claimed hours
working on these motions.
c. Sufficient Detail of Time Entries
The fee award will be reduced further because Plaintiffs’ billing entries fail to
provide sufficient detail in accounting for the attorneys’ time. The fee applicant bears
the burden of establishing entitlement to an award and documenting the hourly rates
and time spent. H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (quoting
Hensley, 461 U.S. at 437). “Inadequate documentation may warrant a reduced fee”
because imprecise or incomplete billing records prevent any meaningful review of a fee
application. Id. In Flygt, the Eighth Circuit affirmed the district court’s reduction of the
lodestar where the billing records included entries such as “legal research,” “trial prep,”
or “met w/ client.” Id. The Eighth Circuit noted that some entries were so vague that the
district court could not determine whether they were related to the applicant’s successful
claims or whether they even pertained to the applicable litigation. Id. The Eighth Circuit
suggested that, in the future, a district court may consider directing the fee applicant to
submit additional records before reducing the amount, but ultimately concluded that the
district court’s reduction of the fee was not an abuse of discretion. Id.
Plaintiffs’ attorneys submitted records of hours worked with vague explanations,
and/or no details at all. For example, attorney Joshua Boyette submitted entries of 11
hours and 8.7 hours on June 17, 2015, and July 7, 2015, respectively, with no
description of work performed. Several of Plaintiffs’ attorneys billed for “prep for trial,”
one of the vague terms used by the attorneys in Flygt.
Plaintiffs’ attorneys Justin
Swidler and Joshua Boyette submitted several entries, many in excess of 10 hours per
entry, with the word “draft” as the sole description. Other entries included terms such as
“continue working,” “finalize,” and “continue drafting” with no indication as to what work
was being performed or continued. Such descriptions are particularly important in this
case where the Court must distinguish between Plaintiffs’ successful and unsuccessful
claims. Having conducted a review of the record, the Court concludes that the fee
award should be reduced by 200 hours.
d. Excessive or Inefficient Work
Werner argues that the lodestar also should be reduced due to certain
unnecessary and duplicative fees due solely to Plaintiffs’ counsel’s inefficiency. In
determining the lodestar, the Court should exclude hours that were not “reasonably
expended.” Hensley, 461 U.S. at 434. It is appropriate to reduce the lodestar to account
for “excessive, redundant, or otherwise unnecessary work.” U & I Sanitation v. City of
Columbus, 112 F. Supp. 2d 902, 904 (D. Neb. 2000). “A court may reduce attorney
hours, and consequently fees, for inefficiency or duplication of services in cases where
more than one attorney is used.” A.J. by L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir.
Several of Plaintiffs’ claimed hours were due to missed deadlines and errors for
which Werner should not bear the costs. For example, Plaintiffs reported nearly 40
hours for time spent opposing Werner’s Motion to Strike Plaintiffs’ Undisclosed
Witnesses and communicating with those undisclosed witnesses. In March 2014, less
than 30 days before the original April 1, 2014, fact discovery deadline, Plaintiffs filed a
witness list identifying 28 potential witnesses not previously disclosed in discovery.
Memorandum & Order at 2, ECF No. 273, Page ID 17447. The Court granted Werner’s
motion to strike the additional 28 witnesses, reasoning that “if Plaintiffs’ counsel knew
these witnesses had [relevant] information, it was their obligation to disclose the names
and information they had to the defendants as soon as they became aware of it.” Id. at
5, Page ID 17450. Because the fees associated with this motion to strike were the
result of Plaintiffs’ failure “to comply with the requirements of Rule 26,” Werner should
not be required to pay for this time.
By way of further example, Plaintiffs identify nearly 50 hours spent
unsuccessfully defending against Werner’s motions to strike Plaintiffs’ late expert
disclosures. In August 2015, less than one month before the trial then scheduled for
September 2015, Plaintiffs produced new, previously-undisclosed hourly damage totals
allegedly prepared by Kroon. See Memorandum & Order at 1-3, Filing 396, Page ID
42024-26. In December 2015, Plaintiffs produced a Kroon declaration, in which he
purported to explain the new damage totals. Id. at 3, Page ID 42026. The Court granted
Werner’s motion to strike the August 2015 damage totals and the December 2015
Kroon declaration, concluding those expert opinions were disclosed well past the
deadline and the late disclosure was neither substantially justified nor harmless. Id. at 4-
7, Page ID 42027-30.
Because hours spent defending the motions to strike were
necessitated solely by Plaintiffs’ unjustified efforts to disclose untimely expert opinions,
Plaintiffs are not entitled to those fees.
Upon review of the Fee Itemization, the Court concludes that Plaintiffs’ request
should be reduced by 200 hours for time spent on work that was excessive or
necessary only due to missed deadlines or litigation errors. Because Plaintiffs incurred
these fees based on their own missed deadlines, Werner cannot reasonably be
expected to pay such fees.
e. Reduction for Excessive, Duplicative or Unnecessary Work
For the reasons stated, the Court has identified at least 800 hours of work in the
Fee Itemization that must be excluded from the award because it was excessive,
duplicative, or unnecessary. This total represents more than 25 percent of the total
hours claimed. Although many specific hours have been identified, it is impractical or
impossible to pinpoint each excessive, duplicative, or unnecessary hour worked.
Accordingly, the Court will reduce the total award by 25 percent to reflect time that was
excessive, duplicative, or unnecessary.
2. Fees For Time Spent on Other Claims or Cases
Plaintiffs’ award also must be reduced significantly because the Fee Itemization
fails to distinguish between work on successful claims and work on unsuccessful claims.
“When a plaintiff has prevailed on some claims but not on others, the plaintiff may be
compensated for time spent on unsuccessful claims that were related to his successful
claims, but not for time spent on unsuccessful claims that were ‘distinct in all respects
from his successful claims.’” Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001)
(quoting Hensley, 461 U.S. at 440). “No fee can be awarded on unsuccessful claims
that were not related to the successful claim.” Kennedy Bldg. Assocs. v. Viacom, Inc.,
375 F.3d 731, 748 (8th Cir. 2004) (citing Hensley, 461 U.S. at 434-35). “Claims are
related and hence deserving of compensation, if they ‘involve a common core of facts’
or are ‘based on related legal theories.’” Emery, 272 F.3d at 435 (quoting Hensley, 461
U.S. at 435).
Where successful and unsuccessful claims involve a common core of
facts and related theories, it will generally be impracticable to separate the
hours spent on the claims, and rather than trying to do so, the court should
focus on the overall relief the plaintiff obtained in relation to the time
reasonably spent on the litigation.
Kennedy Bldg., 375 F.3d at 748 (citing Hensley, 461 U.S. at 435). Where “attorneys’
time entries are insufficiently specific to differentiate between claims, the consequences
of such a shortcoming rests with the prevailing party.” Lash v. Hollis, 525 F.3d 636, 643
(8th Cir. 2008) (citing Hensley, 461 U.S. at 437 n.12).
Plaintiffs succeeded on their short rest break claims, but were unsuccessful on
their sleeper berth claims. Although both claims were brought under the FLSA against
the same employer, they were based on different facts, different regulations, and
different legal theories. See, e.g., Plaintiffs’ Br. in Support of Motion for Partial Summary
Judgment, ECF No. 322 (summarizing each claim and distinguishing facts and law
relied upon for short rest break claim from facts and law relied upon for sleeper berth
claim). The Court has held that “the requirements for the compensability of short rest
breaks and truckers’ sleeper berth time are separate and distinct.” Order in Limine at 5,
ECF No. 472, Page ID 42776. Specifically, the Court granted Werner’s motion in limine
to exclude any evidence or arguments regarding Werner’s denial of liability for the short
rest break claims, noting liability for those claims was not at issue and that the short rest
breaks claim was “separate and distinct” from Plaintiffs’ sleeper berth claim. See
Plaintiffs’ Br. at 4, ECF No. 552, Page ID 56056. Because the claims were separate and
distinct, it would not have been impracticable for counsel to separate the hours spent on
The Fee Itemization contains several entries for work that expressly reference
the sleeper berth claims. See ECF No. 556-1 at 22, 28-29. Other entries identify work
that did not relate in any way to the short rest break claims. For example, Plaintiffs’ seek
nearly 100 hours in preparing a motion to exclude Werner’s expert, Robert Topel. See
ECF No. 556-1 at 27. In addition to these specific entries, Plaintiffs’ billing descriptions
do not meaningfully distinguish between time spent on the short rest break claims and
time spent on the sleeper berth claims. Plaintiffs argue that “the majority of the work in
this case was either equally applicable to both theories and/or applicable to the short
rest break theory alone.” Plaintiffs’ Brief at 2 n.1, 3-5, ECF No. 555. Notwithstanding
this assertion, Plaintiffs claim they “exercised billing discretion and reduced their entire
lodestar by 1/3 to account” for work “related exclusively to the sleeper berth claim.” Id.
at 2 n.1.
The Court cannot discern from the Fee Itemization whether Plaintiffs’ lawyers
indeed spent two-thirds of the requested time on the short rest break claims. Despite
Plaintiffs’ assertion otherwise, the bulk of the litigation effort in this case, by the parties
and the Court, has been in relation to Plaintiffs’ sleeper berth claims. The Court granted
summary judgment to Plaintiffs on their short rest break claims on August 3, 2015.
Summary Judgment Order, ECF No. 347. The Court was never asked to revisit this
ruling. After that time, the only issue remaining relative to the short rest breaks claim
was the amount of damages. In contrast, Plaintiffs’ unsuccessful sleeper berth claim
was subject to significant discovery and pre-trial motion practice. The sleeper berth
claim was the principal subject at trial and has been a key subject in post-trial motions,
including this one.
Because of the vagueness of the entries in the Fee Itemization, Plaintiffs have
not demonstrated that two-thirds of their counsel’s time was spent on the short rest
As noted above, where time entries are insufficiently specific to
differentiate between claims, the consequences of such a shortcoming rests with the
prevailing party.” Lash v. Hollis, 525 F.3d 636, 643 (8th Cir. 2008) (citing Hensley, 461
U.S. at 437 n.12). Plaintiffs’ Fee Itemization fails to distinguish between time spent on
their two principal claims. Based upon a detailed review of the Fee Itemization, the
record, and the Court’s own knowledge of this case, the Court will reduce the remaining
hours by half.
3. Paralegal Time
Certain entries for paralegal time are not compensable.
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 U.S. Dist. LEXIS 92044 at *7 (D. Neb. July 3, 2012) (quoting Missouri
v. Jenkins by Agyei, 491 U .S. 274, 288 (1989)). For example, this Court has recognized
that “filing through CM/ECF, preparing and reviewing documents, and calendaring dates
. . . are clerical tasks.” Id.; see also Doe v. Neb. State Patrol, No. 8:09CV456, 2012
U.S. Dist. LEXIS 181029, at *28-29 (D. Neb. Dec. 21, 2012) (“[T]he customary practice
in the Omaha, Nebraska, market is that secretarial tasks, including but not limited to
mailing of summons, updating files, filing documents in files, faxing documents . . .
would generally not be billed to a client but would usually be considered part of a firm’s
overhead.”), cf. Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001) (“Plaintiffs are not
entitled to reimbursement for expenses that are part of normal office overhead in the
In this case, Plaintiffs’ Fee Itemization includes approximately 456.9 hours spent
by paralegals in scanning consent forms and adding those consent forms to a database.
(Ex. 1, McGill Decl. ¶20 & Ex. 1A, Fee Itemization, ¶XI). Scanning documents and
adding those documents to an online database are clerical tasks that do not require
paralegal training or expertise. See, e.g., Murray, 2012 U.S. Dist. LEXIS 92044, at *7.
Plaintiffs are not entitled to compensation for this time, and the total fee will be reduced
by 456.9 hours times the undisputed paralegal rate of $110.
Plaintiffs seek a 2x multiplier on the total attorney fee as an enhancement
because of the complexity and size of the case, and the excellent results obtained. “An
upward adjustment to an attorney’s lodestar hourly rate is permissible ‘in certain
“rare” and “exceptional cases,” supported by both “specific evidence” on the record and
detailed findings by the lower courts.’” New Hope Fellowship, Inc. v. City of Omaha, No.
8:04CV259, 2006 U.S. Dist. LEXIS 95090, at *18-19 (D. Neb. May 17, 2006) (quoting
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565
(1986)). “Because the lodestar amount may already compensate the applicant for
exceptionally good service and results, however, the fee applicant must do more than
establish outstanding service and results.” In re Apex Oil Co., 960 F.2d 728, 732 (8th
Cir. 1992). “The applicant also must establish that the quality of service rendered and
the results obtained were superior to what one reasonably should expect in light of the
hourly rates charged and the number of hours expended.” Id.
Plaintiffs have not demonstrated that the quality of services rendered were
superior to the rates charged and the hours expended in this case. While Plaintiffs
obtained summary judgment on their short rest break claims and received the full
amount requested in damages, Plaintiffs’ counsel have not shown that these results
were superior to what Plaintiffs should have expected. Accordingly, the Court will not
grant an enhancement.
D. Summary of Fee Award
In accordance with the Court’s reasoning above, the Court will adjust the lodestar
25% Reduction for Erroneous, Vague, Excessive, or
Total Attorney and Paralegal Fee
50% Reduction for Work on Sleeper Berth Claims
Total Fee Award
II. Nontaxable Costs
Under the FLSA, prevailing plaintiffs may recover costs, including reasonable
out-of-pocket expenses beyond those normally allowed under Fed. R. Civ. P. 54(d) and
28 U.S.C. § 1920. Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 969 (10th
Cir. 2002); Herold v. Hajoca Corp., 864 F.2d 317, 323 (4th Cir. 1988) (allowing recovery
of attorney travel expenses); Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818
F.2d 278, 283 (2d Cir. 1987) (attorney’s fees include expenses that are “incidental and
necessary” to the representation, provided they are “reasonable.”). Plaintiffs seek
reimbursement of $199,512.31 in out-of-pocket litigation costs and up to $92,260.00 to
be paid to KCC Class Action Settlements (KCC) to distribute the judgment. Based on
the results and the nature and size of this class action, Plaintiffs are entitled to a
sizeable reimbursement of costs. The Court will award reasonable costs, but will reduce
the award for costs not reasonably incurred.
A. Notice to Class Members in Case No. 12-cv-307
Werner will not be ordered to pay the full amount of distributing the class notice
for Case No. 12-cv-307. Plaintiffs seek $94,023.26 for the cost of sending two separate
notices to class members - one in Case No. 11-cv-401 and one in Case No. 12-cv-307.
See ECF No. 446-1, Page ID 56199. Plaintiffs previously requested that the Court
order Werner to reimburse the cost of sending a notice to class members in Case No.
12-cv-307. In October of 2012, Werner requested an extension of time to respond to
Plaintiffs’ motion for certification. Plaintiffs opposed the extension, arguing that they
would be severely prejudiced, in part, because the extension would prevent Plaintiffs
from sending a hybrid notice for both cases to all class members. Plaintiffs stated that
they would not oppose the extension if the Court cured the prejudice and ordered
Werner to pay for the costs of the second set of notices. ECF No. 101, Page ID 1560.
The Court did not expressly address Plaintiffs’ request for costs, but concluded that
Plaintiffs were not prejudiced by the extension because it was their choice to file a
second lawsuit and, unless the cases had been consolidated, Plaintiffs would have had
to send a second notice anyway. Order at 2, ECF No. 103, Page ID 1566. Plaintiffs filed
Case No. 12-cv-307 so that they could pursue claims under Nebraska law because
Plaintiffs “realized they had pursued the law of the wrong state.” Id.
In light of its previous order, Werner will not be ordered to pay the costs of the
notice to class members in Case No. 12-cv-307. Plaintiffs’ evidence does not distinguish
between the costs for the two sets of notices. Therefore, the Court will reduce the
requested amount by half, to $47,011.63.
B. Costs for Second Deposition of Richard Kroon
Plaintiffs seek costs in the amount of $1,935.44 for the second deposition of
Richard Kroon. As discussed above, the Court has already held “the second deposition
of Plaintiffs’ expert will be at plaintiffs’ expense.” Memorandum & Order at 2, ECF No.
283, Page ID 17513; see also Memorandum & Order at 6, ECF No. 275, Page ID
C. Costs for Remaining in Omaha to Appear for Verdict
Plaintiffs seek $2,974.61 in costs incurred to appear for the verdict after trial.
After the jury instructions were delivered, the Court specifically instructed the parties
that they were not required to be present when the verdict came in. Tr., ECF No. 549,
Page ID 56038. Plaintiffs argue that they could not have known if the jury would have
had a question prior to reaching their verdict, nor could Plaintiffs’ counsel have known if
issues with exhibits or questions would have mandated that they appear in Omaha.
None of these concerns, had they arisen, required Plaintiffs’ counsel to be physically
present in Omaha. For these reasons, the request for nontaxable costs will be further
reduced by $2,974.61.
D. Taxable Costs
Plaintiffs seek $14,314.00 in costs for filing fees, service fees, deposition
transcripts, and trial transcripts. This Court required that a “party entitled to recover
costs must file within 30 days after entry of judgment a verified bill of costs” on a Courtprovided form. NECivR 54.1(b). Post-trial motions do not extend the time for filing a
verified bill of costs under this rule. NECivR 54.1(b). A party who fails to file a bill of
costs within the time allowed waives taxable costs.
NECivR 54.1(d); Marshall v.
Anderson Excavating & Wrecking Co., No. 8:14-CV-96, 2017 U.S. Dist. LEXIS 39563,
at *9 (D. Neb. Mar. 20, 2017); see also Kinzenbaw v. CNH Am., LLC, No. C01-0133,
2006 U.S. Dist. LEXIS 78253, at *4 (N.D. Iowa Apr. 5, 2006) (“Per this district’s Local
Rules, Hill’s untimely request constitutes a waiver of its right to have costs taxed.”).
Plaintiffs failed to file a Bill of Costs regarding those taxable costs within the time
provided by the local rules. Plaintiffs request $700.00 in filing fees, $135.00 for service
fees, $9,578.89 for the cost of deposition transcripts, and $3,900.55 for trial transcript
costs. By statute, these expenses are taxable costs, see 28 U.S.C. § 1920, and should
have been submitted in an appropriate bill of costs. The Court will not award these
costs as part of the fee award.
E. Costs of Distributing Verdict Amount
Werner requests that the Court reduce the amount of nontaxable costs by
$27,025.00 for costs associated with distributing the verdict amount. However, these
costs have not yet occurred. The Court has already addressed the appropriateness of
the distribution plan and approved KCC as the administrator. There no is no reason to
believe that the award will be distributed inconsistent with the Court’s previous Order.
See ECF No. 545. The Court will not further reduce the award for costs not yet
F. Costs Awarded
For the reasons stated above, Plaintiffs will be awarded nontaxable costs. Their
requested award will be reduced by the amounts identified above. Accordingly, Plaintiffs
are awarded $133,276.63 in nontaxable costs and expenses.
For the reasons stated above,
IT IS ORDERED:
Plaintiffs’ Motion for Partial Judgment as a Matter of Law, Motion for New
Trial, and Motion to Amend the Judgment, ECF No. 551 in Case No.
8:11CV401; ECF No. 451 in Case No. 8:12CV307, is denied;
Plaintiffs’ Motion for Attorney’s Fees and Costs under 29 U.S.C. § 216(b)
and Motion for Service Payments for Named Plaintiffs, ECF No. 554 in
Case No. 8:11CV401; ECF No. 454 in Case No. 8:12CV307, is granted as
Plaintiffs are awarded $337,293.69 in attorney’s fees;
Plaintiffs are awarded $133,276.63 in nontaxable costs and
Named Plaintiffs are awarded service payments of $10,000 each,
totaling $40,000, to be paid from unclaimed funds of the verdict, or,
if the amount of unclaimed funds cannot cover the service
payments, to be paid from Plaintiffs’ counsel’s fee award.
Dated this 9th day of February, 2018.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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