Bremmer v. Appleton Electric, LLC

Filing 48

ORDER that Appleton Electric, LLC's Application for the Award of Costs and Fees (Filing No. 33) is granted in part to award Appleton Electric, LLC attorneys' fees in the amount of $5,913.49 and costs in the amount of $105.44. In all other respects, the application is denied. Ordered by Magistrate Judge Thomas D. Thalken. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICK BREMMER,
Plaintiff,

8:15CV329

vs.
ORDER
APPLETON ELECTRIC, LLC,
Defendant.
This matter is before the court on Appleton Electric, LLC’s (Appleton) Application
for the Award of Costs and Fees (Filing No. 33).1 Appleton seeks a determination of the
amount of an award previously granted for work completed in a case filed by the plaintiff
prior to this action. Appleton filed an index of evidence (Filing No. 33) in support of the
application.

In response, Rick Bremmer (Bremmer) filed a brief (Filing No. 40).

Appleton filed a brief (Filing No. 44) in reply.

BACKGROUND
This action arises from an injury Bremmer sustained on May 25, 2011, when he
delivered an order on behalf of Waste Connections, Inc. (WCI) to Appleton on
Appleton’s premises. See Filing No. 1-1 Complaint p. 2. Bremmer fell into an open pit
after walking across a darkly lit warehouse. Id. Bremmer alleges he suffered numerous
injuries to his shoulders and neck, needing multiple surgeries.

Id.

Additionally,

Bremmer alleges he suffers lost wages, pain and suffering, and mental distress. Id.
Seeking redress from Appleton for these damages, Bremmer filed this action on
February 12, 2015, in the District Court of Platte County, Nebraska. Id. at 1. Appleton
timely removed the case to this court on September 4, 2015. See Filing No. 1 - Notice
of Removal. Shortly after removal, Appleton filed a motion to dismiss seeking dismissal
of Bremmer’s case based on the relationship between this case and an earlier lawsuit.
See Filing No. 6.
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Noting the case is related to an earlier action, Case No. 8:12CV436, on October 7, 2015, Chief Judge
Laurie Smith Camp reassigned this case to the undersigned magistrate judge. See Filing No. 13. On
October 28, 2015, the parties filed their consent to jurisdiction by a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). See Filing No. 18.

The incident surrounding Bremmer’s injuries was previously litigated in Waste
Connections, Inc. v. Appleton Electric, LLC, 8:12CV436 (the 2012 Lawsuit).
Bremmer and WCI filed the 2012 Lawsuit against Appleton and Emerson Electric, LLC
on September 18, 2012, in the District Court of Platte County, Nebraska. See Filing No.
1-1, in Case 8:12CV436.

Those defendants removed the matter to this court on

December 20, 2012. See Filing No. 1, in Case 8:12CV436. In the complaint, WCI
alleged it had paid and will continue to pay workers’ compensation benefits to Bremmer.
See Filing No. 1-1 ¶ 22, in Case 8:12CV436. Both plaintiffs alleged the defendants’
negligence caused Bremmer’s injuries.

Id. ¶¶ 18-21.

The defendants denied the

plaintiffs’ allegations and asserted the affirmative defenses of comparative negligence,
contributory negligence, and assumption of the risk. See Filing No. 1-1 p. 8 - Answer
¶¶ 3-4, in Case 8:12CV436. The parties engaged in discovery and prepared the case
for trial. On November 26, 2013, Bremmer filed a motion to dismiss his claims against
the defendants, without prejudice, stating, he “no longer wishes to pursue his claim for
loss of earning capacity and future medical in conjunction with the employer.” See
Filing No. 68, in Case 8:12CV436. The defendants “[did] not oppose the dismissal of
Bremmer’s claims, [however they argued] . . . voluntary dismissal, while without
prejudice, should include an award of costs . . . as a condition precedent to his refilling
[sic] of the claims.” See Filing No. 70 - Response p. 1, in Case 8:12CV436.

On

December 20, 2013, the court granted Bremmer’s motion, holding:
Bremmer’s claims against the defendants are dismissed
without prejudice, subject to the condition Bremmer must
pay the attorneys’ fees and costs reasonably incurred by the
defendants in defending Bremmer’s initial claims before
Bremmer refiles against either or both of the defendants.
See Filing No. 73, in Case 8:12CV436.
On March 11, 2014, Bremmer moved to intervene, without payment of fees and
costs, and extend the progression deadlines, erroneously arguing he had previously
been unrepresented by counsel. See Filing No. 82, in Case 8:12CV436. On April 21,
2014, the court denied Bremmer’s motion. See Filing No. 129, in Case 8:12CV436.
Prior to trial, the court dismissed WCI’s claims against Emerson Electric, LLC. See
Filing No. 187, in Case 8:12CV436. Bremmer testified during the trial held on May 12,
2014. The court instructed the jury to limit damages to those recoverable by WCI,
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which included Bremmer’s medical care and diminished ability to work. See Filing No.
212 - Final Jury Instructions, in Case 8:12CV436. The jury did not consider mental
distress or pain and suffering. The jury found in favor of WCI, by determining Bremmer
had been 49% negligent and Appleton had been 51% negligent in causing WCI’s
damages.

See Filing No. 226, in Case 8:12CV436.

Although Appleton initially

appealed, the parties stipulated to the appeal’s dismissal and Appleton satisfied the
judgment. See Filing Nos. 253, 256, in Case 8:12CV436.
Ultimately the court denied Appleton’s motion to dismiss; however, the court
allowed the defendant an opportunity to apply for the attorneys’ fees and costs
reasonably incurred by Appleton prior to December 20, 2013, in defending the 2012
Lawsuit. See Filing Nos. 19 and 31. Appleton seeks an award of $10,936.34.

See

Filing No. 33 - Application p. 2. In addition to facts listed above, Appleton alleges the
following additional facts:
2.
On January 4, 2013, Christopher A. Sievers (Sievers)
entered his appearance as counsel for Bremmer and WCI.
3.
On September 6, 2013, Defendants noticed a
deposition of Bremmer. The date and location of the noticed
deposition was agreed to by Plaintiffs’ counsel of record, Mr.
Sievers.
4.
On October 25, 2013, Bremmer refused to appear for
his properly noticed deposition.
5.
On November 11, 2013, Defendants noticed another
deposition for Bremmer.
6.
Bremmer refused to appear for his second properly
noticed deposition on November 19, 2013.
Id. (internal citations to the record omitted).
Appleton also alleges counsel conferred but were unable to agree on a
reasonable amount for the award. Id. ¶¶ 16-17. The proposed award of $10,936.34,
according to Appleton, comprises the amount incurred as a result of Bremmer’s failure
to appear for two properly noticed depositions and motion for voluntary dismissal. Id. at
4-5.

Appleton contends it has limited the amount sought to those events with the

clearest of direct costs.

Id. at 5.

Appleton argues preparation for a duly noticed

deposition was reasonable, despite being told Bremmer would not appear, and the
complexity of the case supports the amount of time spent. See Filing No. 44 - Reply p.
2-3.

Appleton asserts Bremmer’s counsel’s personal practices fail to support a
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reduction in the award sought. Id. at 2. Appleton suggests the amount of time spent on
tasks is a matter left to its attorneys own discretion. Id. at 3.
Bremmer denies the proposed award amount is reasonable. See Filing No. 40 Response p. 1. Bremmer suggest an award of $4,718.64. Id. Bremmer argues the
deposition preparation time should be eliminated because Appleton’s attorneys knew
Bremmer would not appear for his deposition and would not participate as a party
witness, even though he was deposed later as a non-party witness. Id. at 2. Bremmer
concedes Appleton is reasonably entitled to an amount for moving to compel the
deposition.

Id.

Bremmer also argues certain billing entries are unreasonable and

unrealistic.

Id. at 2-3.

Specifically, Bremmer notes Appleton’s attorney Mueller

prepared for a deposition ten days early and on the same date Bremmer’s attorney
warned Bremmer would not appear. Id. Additionally, after the preparation time and
with the knowledge the deposition would be canceled, a different individual billed time
for preparing a deposition outline, which is prepared again three weeks later. Id. at 3.
Finally, Bremmer suggests additional charges are duplicative and some are beyond the
dates allowed by the court. Id.

ANALYSIS
Largely, parties to a lawsuit must bear their own costs. In this case, the court
determined an award of costs and fees was appropriate based on Bremmer’s conduct.
The parties are unable to agree upon a reasonable amount for the award. “[T]here is no
one methodology for calculating an award of fees.”

Marez v. Saint-Gobain

Containers, Inc., 688 F.3d 958, 966 (8th Cir. 2012). Still, the applicant for an award of
attorney’s fees has the burden of showing both the claimed rate and the number of
hours are reasonable. See Pennsylvania v. Delaware Valley Citizens’ Council for
Clean Air, 478 U.S. 546, 564-66 (1986); see also Hensley v. Eckerhart, 461 U.S. 424,
437 (1983).
“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,” although a district court has discretion to adjust the fee
to account for other considerations, such as the nature of the
results obtained.
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Miller v. Dugan, 764 F.3d 826, 830-31 (8th Cir. 2014) (quoting Hensley, 461 U.S. at
433-34).
At least twelve factors comprise the “other considerations,” which may be
appropriately evaluated by the court. Marez, 688 F.3d at 966 & n.4; see Hensley, 461
U.S. at 430 n.3 (adopted by Winter v. Cerro Gordo Cty. Conservation Bd., 925 F.2d
1069, 1074 (8th Cir. 1991)). While all twelve factors are not relevant here, the court will
address the significant factors below.
Bremmer does not dispute the hourly rates listed by Appleton for the attorneys
and paralegal are reasonable. The court finds the hourly rates charged by the lawyers
($296.00/$168.00) and by the experienced paralegal ($175.00) are consistent with
prevailing market rates in the Omaha community for similar services and are
reasonable.
The court must exclude time not “reasonably expended,” such as “hours that are
excessive, redundant, or otherwise unnecessary,” considering, among other things,
whether the case is overstaffed. Hensley, 461 U.S. at 434; see El–Tabech v. Clarke,
616 F.3d 834, 842 (8th Cir. 2010). Consideration of whether the time was reasonably
expended includes assessing: “(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal service properly; . . .
and (9) the experience, reputation, and ability of the attorneys . . . .” Hensley, 461 U.S.
at 430 n.3. Generally, “the assignment of multiple attorneys to a single set of tasks
should be regarded with ‘healthy skepticism;’” however, such careful preparation and
collaboration may be necessary in response to complex legal issues.

Castaneda-

Castillo v. Holder, 723 F.3d 48, 80 (1st Cir. 2013) (quoting Rodriguez-Hernandez v.
Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998)). “Fee awards are not intended ‘to
serve as full employment or continuing education programs for lawyers and paralegals.’”
Castaneda-Castillo, 723 F.3d at 80 (quoting Lipsett v. Blanco, 975 F.2d 934, 938
(1st Cir. 1992)).
This case is similar to those cases where the applicant achieved only partial
success as the award is based upon only a portion of the underlying case. “There is ‘no
precise rule or formula’ for making fee determinations in cases with only partial
success.” Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005) (quoting Hensley,
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461 U.S. at 436-37). Absent the ability to separate out which hours were billed for
which issues, a court “may simply reduce the award to account for the [movant’s] limited
success.” Warnock, 397 F.3d at 1026 (quoting Hensley, 461 U.S. at 436-37).
Appleton suggests the amount of time spent on tasks is a matter left to its
attorneys own discretion, particularly where it has reduced the application amount to
“the most direct charges.” See Filing No. 44 - Reply at 3. Appleton fails to sustain its
burden of showing the number of hours were reasonably expended in defending
Bremmer’s initial claim. Appleton seeks reimbursement for all expenses associated
with Bremmer’s scheduled depositions while he was a party, even though Bremmer was
later deposed as a non-party. The court finds the distinction nonsensical except as it
might relate to time spent on defending the lawsuit of the claims asserted by Bremmer,
separate from those claims or proceedings inevitable by virtue of WCI’s claims.
Additionally, Appleton’s application exhibits duplication and inefficiency in activities
associated with the scheduled depositions. Appleton fails to adequately explain the
necessity for the number of people and their activities based on the nature of the case
and other relevant factors. Accordingly, a downward adjustment in the number of hours
claimed by Appleton’s counsel in preparation for the deposition is warranted. Rather
than strike certain charges, the court will reduce the total amount sought related to
Bremmer’s deposition by 50%.

This includes the entries from October 15, 2013,

through November 19, 2013, except the four entries mentioning possible dismissal
($408.80), and reduces the amount for those entries from $7,374.50 to $3,687.25.
Bremmer seeks elimination of the entry for drafting a brief and a motion to
dismiss Bremmer’s claims with prejudice. These documents were not filed in the court
file and Appleton achieved no measure of success with the effort. Therefore the court
will reduce the award by $436.80.
Finally Appleton seeks reimbursement for efforts associated with Bremmer’s
motion for voluntary dismissal. Generally, this is exactly what the court envisioned
when imposing the limitation on Bremmer.

The court notes Appleton seeks

compensation for more than seven hours of work between two attorneys in the amount
of $1,648.80. While the time and amount are not per se troublesome, the response
brief filed by Appleton concedes Bremmer should be allowed to voluntarily dismiss his
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case, with the condition of paying reasonable fees, but contains only two pages of
textual content.

See Filing No. 70 - Response in Case 8:12CV436.

A downward

adjustment in the award claimed by Appleton’s counsel in preparation of the response is
warranted. The court finds $750.00 represents compensation for the time reasonably
expended on the response. The remaining unmentioned entries were not reduced.
Upon consideration,

IT IS ORDERED:
Appleton Electric, LLC’s Application for the Award of Costs and Fees (Filing No.
33) is granted in part to award Appleton Electric, LLC attorneys’ fees in the amount of
$5,913.49 and costs in the amount of $105.44. In all other respects, the application is
denied.
Dated this 1st day of August, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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