Marshall et al v. Anderson Excavating and Wrecking Co.
ORDER that the Court awards prejudgment interest to the plaintiffs in the amount of $8,717.96. The Court awards liquidated damages to the plaintiffs in the amount of $8,717.96. The Court awards attorney's fees to the plaintiffs in the amount of $38,331. The Court awards nontaxable costs to the plaintiffs in the amount of $516.50. Ordered by Judge John M. Gerrard. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROD MARSHALL, et al.,
ANDERSON EXCAVATING AND
WRECKING CO., a.k.a. ANDERSON
This matter is before the Court on the plaintiffs' Motion and
Application for Award of Attorneys' Fees, Interest, Liquidated Damages, and
Auditing Costs (filing 79). The Court will award prejudgment interest in the
amount of $8,717.96, liquidated damages in the amount of $8,717.96,
attorney's fees in the amount of $38,331, and nontaxable costs in the amount
The Court begins with the prejudgment interest. The defendant does
not contest the plaintiffs' calculation of the amount; rather, the defendant
objects to awarding prejudgment interest at all, and argues that the interest
rate used was incorrect. Filing 86 at 16-17. The defendant's arguments are
the same as those raised in its motion for new trial (filing 81), and are
discussed and rejected in the Court's separate ruling on that motion (filing
The defendant's objection to the plaintiffs' liquidated damages request
is that it is inconsistent with the Court's Findings of Fact and Conclusions of
Law (filing 77), which according to the defendant found that "the total
liquidated damages could not exceed $2,391.39 (20% of $11,956.96)." Filing 86
at 17. But that is not what the Court held: the Court held that 29 U.S.C. §
1132 requires an award of "'an amount equal to the greater of' either 'interest
on the unpaid contributions' or 'liquidated damages provided for under the
plan in an amount not in excess of 20 percent' of the total delinquent
contributions." Filing 77 at 21. So, the Court explained,
The Delinquent Policy and Procedure document introduced at
trial provides for liquidated damages in the amount of $0.02 per
hour of work per month that the contribution on that month was
delinquent. Accordingly, the Court will order the defendant to
pay the greater of (1) the amount of the interest on the unpaid
contributions, to be calculated in accordance with the Delinquent
Policy and Procedure document, or (2) the amount of liquidated
damages, to be calculated in accordance with the Delinquent
Policy and Procedure document, and not to exceed $2,391.39 (20%
Filing 77 at 21. Because the interest on the unpaid contributions proved to be
the greater amount, a liquidated damages award of $8,717.96 is warranted.
The defendant takes issue with the plaintiffs' fee request on several
grounds. Most generally, the defendant complains that the fee request is
exorbitant given the amount actually recovered. A majority of the
fees are unnecessary and the result of the Plaintiffs' failure to
exercise remedies available to it and to properly plead its case
prior to the close of discovery. Plaintiff did not succeed in the vast
majority of its claims against the Defendant and for those claims
it did succeed upon (thus far), the Plaintiff[s] did not even plead a
proper theory of relief.
Filing 86 at 2. The Court finds some of the defendant's arguments persuasive,
but others less so.
First, 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. After determining this amount, a
district court may consider other factors, including the results obtained, to
adjust the fee upward or downward. Smith v. AS Am., Inc., 829 F.3d 616, 623
(8th Cir. 2016). But the Court is confused from the start by the
documentation submitted by plaintiffs' counsel.
The Court has been presented with what are effectively two sets of bills
for the same services. See filing 79-1 at 17-121. That makes a certain degree
of sense: the billing suggests that the Health and Welfare Plan and Pension
Plan were billed separately. But the plaintiffs' evidence indicates that
counsel's hourly rate of $155 was fair and reasonable. See, filing 79-3; filing
87-1. There are two problems with that. The first is basic mathematics: the
bills reflect charges at an hourly rate of $150. The second is that billing for
the same services twice at $150 an hour means that the effective rate is $300
per hour. And the plaintiffs are clearly representing that the two plans were
each charged for each bill. See filing 79-1 at 16.
It is not clear how the Court is to make sense of this, but the bottom
line is that the only evidence before the Court regarding an hourly rate for
the plaintiffs' counsel is that $155 per hour is fair and reasonable. Adjusting
the $150 rate reflected in the billing to $155 per hour, and eliminating
duplicate billing, results in total attorney's fees of $38,331.1
But the Court is not persuaded that the plaintiffs' ultimate recovery
warrants a reduction in the fee award. The Court notes the Eighth Circuit's
reasoning in Farmers Co-op Co. v. Senske & Son Transfer Co., in which the
Court of Appeals discussed the propriety of a trial court's order adjusting a
fee award upward. 572 F.3d 492, 500-01 (8th Cir. 2009). The Court of Appeals
explained that it found
no abuse of discretion in the upward adjustment. Here, the court
reasonably determined that the adjustment was appropriate
based on the skill displayed by [Plaintiff]'s counsel, the
exceptional result obtained in the case, and the risk taken by
[Plaintiff] and its counsel in expending well over $100,000 in
legal fees and costs, when [Plaintiff]'s actual damages were only
$42,370.47. Further, it appears that [Defendant]'s conduct and
unsuccessful litigation strategies—i.e., [Defendant]'s failed efforts
to withhold certain discovery information, its ultimatelydismissed claims against a third party, its unsuccessful summary
judgment motion, its flurry of unsuccessful pretrial motions, and
its refusal to stipulate to certain key facts—were the principal
forces driving the high litigation costs.
Id. While the Court is not adjusting the award upward here, similar
circumstances are present, and a downward adjustment is certainly
While the defendant raises questions about several line items, see filing 86 at 3-8, the
Court has examined the plaintiffs' evidence regarding attorney's fees and finds the hours
expended, and the charges included in counsel's billing, to be reasonable. The Court is
sympathetic to the defendant's argument that the plaintiffs' counsel should have had more
regard for the fee application guidelines set forth in NECivR 54.4, but those are guidelines,
and failure to strictly adhere to them is not fatal to recovery. The Court also notes the
defendant's suggestion that the plaintiffs are double-billing for different proceedings
brought by Local 571 before the National Labor Relations Board. Filing 86 at 8-11. The
Court accepts the plaintiffs' explanation that the union was represented by different
counsel in the NLRB proceeding, but that the NLRB proceeding was sufficiently related to
this case to warrant counsel's attention. Filing 87 at 8-11.
The Court recognizes that in awarding attorney's fees, the most critical
factor is the degree of success obtained. Wheeler v. Missouri Highway &
Transp. Comm'n, 348 F.3d 744, 754 (8th Cir. 2003). The Court also
recognizes that a reduced fee award is appropriate if the relief, however
significant, is limited in comparison to the scope of the litigation as a whole.
Geissal ex rel. Estate of Geissal v. Moore Med. Corp., 338 F.3d 926, 936 (8th
Cir. 2003). But the Court finds that the defendant's conduct was at least
equally responsible for the scope of the litigation. And, the Court notes, the
nonmonetary aspects of the award are important to the plaintiffs, regardless
of the arrearages ultimately recovered.
The defendant attempts to characterize this litigation as being the
product of unreasonable conduct by the plaintiffs—that if the plaintiffs had
simply pled their claims better, or asked for less in the first place, why, then
the defendant would have quickly seen the error of its ways and none of this
would have been necessary. But the defendant's consistent position
throughout this litigation was that it was not bound by a collective
bargaining agreement at all. See, filing 41; filing 49; filing 76. Even post-trial,
the defendant was insisting that it was not liable for any arrearage. See filing
76. It is hard to square that position with the claim that the defendant would
have willingly surrendered had the plaintiffs demanded just a little less.2
The defendant also argues that attorney's fees are unavailable because
it offered to confess judgment in the amount of $22,500 on March 2, 2016.
Filing 86 at 13. So, according to the defendant, the plaintiffs' recovery of only
$11,956.96 means that, pursuant to Fed. R. Civ. P. 68, charges after March 2
are not chargeable. The Court finds no merit to that argument, for several
reasons. To begin with, by its terms, Rule 68 requires a settlement offer to be
made "[a]t least 14 days before the date set for trial," and in this case, trial
began 12 days after the March 2, 2016 offer. See filing 71. In addition, the
Court notes that it has not been presented with evidence of the purported
offer. This is particularly problematic because the parties disagree about the
nature of the offer. The defendant claims that
[h]ad the Plaintiffs' [sic] accepted the offer of confession of
judgment they would have been entitled to the non-monetary
remedies requested in the Complaint, would have had judgment
of $22,500 for the supposedly unpaid contributions, liquidated
The Court also notes the defendant's argument that fees are unwarranted because the
dispute could have been arbitrated or mediated. Filing 86 at 12-13. There is no authority for
the proposition that failing to arbitrate or mediate a dispute precludes an award of costs
and fees—after all, arbitration or mediation are an option in any case, but access to the
courts is a fundamental right of every citizen. See Harrison v. Springdale Water & Sewer
Comm'n, 780 F.2d 1422, 1427 (8th Cir. 1986).
damages and interest, and would have then been entitled to seek
a reasonable attorney fee based upon such a recovery.
Filing 86 at 13. But, the plaintiffs claim that the offer would not necessarily
have included non-monetary relief sought by the plaintiffs. See filing 87 at 7.
Money damages are not the only measure of whether a plaintiff has obtained
a "more favorable" judgment under Rule 68. Andretti v. Borla Performance
Indus., Inc., 426 F.3d 824, 837 (6th Cir. 2005); see Reiter v. MTA N.Y. City
Transit Auth., 457 F.3d 224, 230 (2d Cir. 2006). It is difficult to compare
monetary relief with non-monetary relief, Reiter, 457 F.3d at 230, and in the
absence of evidence, the Court cannot resolve the dispute.
In addition, because the plaintiffs' claim would entitle them to costs
and fees if they prevailed, whether the defendant's offer was truly "more
favorable than the unaccepted offer" requires costs and fees to be included as
part of the recovery. Scheeler v. Crane Co., 21 F.3d 791, 793 (8th Cir. 1994).
"This is the only way in which the offer can be fairly matched against the
recovery." Id. The Court is awarding more than $22,500 for unpaid
contributions, liquidated damages, and interest—as a result, and particularly
considering the lack of evidence, the Court finds that the defendant has failed
to demonstrate that its rejected offer was "more favorable" than the plaintiffs'
ultimate recovery. See, Sanchez v. Prudential Pizza, Inc., 709 F.3d 689, 692
(7th Cir. 2013) (burden of proof); Reiter, 457 F.3d at 231 (same).
Finally, the Court considers nontaxable costs—and the distinction
between "taxable" and "nontaxable" costs is important from the outset,
because the plaintiffs did not file a bill of costs. NECivR 54.1(b) provides that
"[a] party entitled to recover costs must file within 30 days after entry of
judgment a verified bill of costs" on the appropriate form provided by the
Court. A party failing to file a bill of costs within the time allowed waives
taxable costs. NECivR 54.1(d). But "costs" for purposes of a bill of costs do not
include attorney's fees, NECivR 54.1(e); instead,
[w]here a party may be entitled to receive attorney's fees and
related nontaxable expenses, the court may order, on its own or a
party’s motion, the time and method of making showings
regarding a fee award. Otherwise, Federal Rule of Civil
Procedure 54(d)(2) controls the time and method for filing a claim
for attorney's fees and related nontaxable expenses.
NECivR 54.3(a). So, taxable costs must be presented to the Court through a
bill of costs, but nontaxable costs need not be.
The plaintiffs did not file a bill of costs. Instead, the plaintiffs included
a number of costs in their attorney's fee request, and separately documented
auditing expenses. See filing 79-1. The costs encompassed in the attorney's
fee documentation fall into four categories: filing fees, court reporter fees,
postage, and copies.3 Of those, pursuant to the Court's Bill of Costs
Handbook, filing fees and court reporter fees are clearly taxable costs.
Because the plaintiffs failed to abide by the Court's local rules for taxation of
costs, the Court will not award those costs. See Marmo v. Tyson Fresh Meats,
Inc., 457 F.3d 748, 764 (8th Cir. 2006). Postage, on the other hand, is clearly
a nontaxable cost, and has not been waived by failure to file a bill of costs. So,
the plaintiffs may recover $41.50 for postage expenses.
Photocopying is more of a problem, because some copying costs are
taxable under the Bill of Costs Handbook, and others are not. See also 18
U.S.C. § 1920(4). And the plaintiffs' evidence provides the Court no basis to
determine which copying expenses might have been taxable, and which were
not. But NECivR 54.4 is intended to provide guidance for Rule 54 motions
regardless of whether a Bill of Costs is filed, and it suggests that for
photocopies, an application for costs should "state the items copied, why they
were copied, how they were used, and the number of pages copied." NECivR
54.4(b)(1). The Court concludes that failure to consider that suggestion
should have consequences: because the Court cannot tell whether the
plaintiffs' photocopying expenses should have been included in a bill of costs,
the Court will assume that they should have been.
Finally, the plaintiffs seek to recover auditing costs of $3,830.
Accountant's expenses are not taxable pursuant to the Bill of Costs
Handbook, so they have not been waived. But the Court is unpersuaded that
all of the plaintiffs' auditing expenses may be recovered as "costs." The
auditing expenses are based on two invoices: one for $3,355 dated January
31, 2014; and one for $475 dated November 26, 2014. But this case was not
filed until March 25, 2014. See filing 1. In other words, it appears that the
initial invoice for auditing costs was a bill for the work that gave rise to this
litigation—and, as such, it should have been pursued as damages, not as a
litigation cost. The second invoice, however, was for work performed well
after the case was filed, so the Court finds that it is recoverable as an expense
associated with the litigation. The Court will award $475 for auditing
expenses, for a total nontaxable cost award of $516.50.
IT IS ORDERED:
It appears to the Court that those costs, labeled as "disbursements," were apportioned
evenly between the two plans.
The Court awards prejudgment interest to the plaintiffs in
the amount of $8,717.96.
The Court awards liquidated damages to the plaintiffs in
the amount of $8,717.96.
The Court awards attorney's fees to the plaintiffs in the
amount of $38,331.
The Court awards nontaxable costs to the plaintiffs in the
amount of $516.50.
Dated this 20th day of March, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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