Morse Electric, Inc. v. Stearns Conrad and Schmidt Consulting Engineers, Inc. et al

Filing 152

ORDER by Magistrate Judge Gerald L. Jackson GRANTING IN PART and DENYING IN PART 135 Defendant Stearns, Conrad and Schmidt, Consulting Engineers, Inc.'s Motion for Attorneys' Fees. (pmb, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MORSE ELECTRIC, INC.,
Plaintiff,
v.
STEARNS, CONRAD AND
SCHMIDT CONSULTING
ENGINEERS, INC.,
Defendant.

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Case No. 22-CV-91-JWB-GLJ

ORDER
Before the Court is Defendant Stearns, Conrad and Schmidt, Consulting Engineers,
Inc.’s Motion for Attorneys’ Fees [Docket No. 135]. This action arises out of a contract
dispute between Plaintiff Morse Electric, Inc. and Defendant. On August 24, 2023, the
Court referred this case to the undersigned Magistrate Judge for all further proceedings in
accordance with jurisdiction pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72 [Docket
No. 44]. For the reasons stated below, Defendant Stearns, Conrad and Schmidt, Consulting
Engineers, Inc.’s Motion for Attorney’s Fees [Docket No. 135] is GRANTED IN PART
and DENIED IN PART.
Procedural Background
A summary of the procedural background is set forth in the Order on Defendant’s
Motion to Compel Discovery Responses [Docket No. 128]. On January 2, 2025, Plaintiff
filed its FRCP 72 Objection to and/or Appeal of Magistrate[ Judge’s] Order [Docket No.

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129], which was denied in the Memorandum and Order on February 10, 2025 [Docket No.
144].
On January 16, 2025, Defendant filed its motion for attorney’s fees, seeking an
award of attorney’s fees in the amount of $59,391.00 related to its motion to compel. See
Docket No. 135. Plaintiff opposes Defendant’s motion, arguing the fee amount requested
is not proportional to the issues involved, Defendant’s counsel engaged in “block billing,”
includes time for matters that are not recoverable under Fed. R. Civ. P. 37(a), includes
unreasonable hours billed, seeks unreasonable billing rates, and the motion failed to include
the required Burk 1 affidavit. See Docket No. 137.
Analysis
I.

Reasonableness of Fees
The starting point for a reasonable fee is the “lodestar” figure, which is “the number

of hours expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998); see also Stenson v. Edmonds, 86 F.4th 870, 879 (10th Cir. 2023) (in Rule
37 context, “[t]he lodestar calculation produces a presumptively reasonable fee.” (internal
quotations omitted)).

The calculation of the “lodestar figure” typically yields a

presumptively reasonable attorney’s fee, though the “presumption may be overcome in
those rare circumstances in which the lodestar does not adequately take into account a
factor that may properly be considered in determining a reasonable fee.” Perdue v. Kenny

1

State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659.
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A. ex rel. Winn, 559 U.S. 542, 554 (2010). See also Two Old Hippies, LLC v. Catch the
Bus, LLC, 277 F.R.D. 448, 464-465 (D.N.M. 2011) (discussing factors supporting a
lodestar award). The burden of proving the reasonableness of the hours and rate is on the
applicant. Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996).
A.

Reasonableness of the Hours Billed

In evaluating a reasonable fee, the “first step in calculating the lodestar [is]
determining the number of hours reasonably spent by counsel for the party seeking fees.”
Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir. 1998). Defendant bears
the burden of “prov[ing] and establish[ing] the reasonableness of each dollar, each hour,
above zero.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986). The
reasonableness component as to billing judgment requires the Court to consider “‘whether
the attorney’s hours were necessary under the circumstances’ and ‘approaches this
reasonableness inquiry much as a senior partner in a private law firm would review the
reports of subordinate attorneys when billing clients.’” Read v. Oklahoma Flintrock Prod.,
LLP, 2023 WL 3510494, at *3 (N.D. Okla. May 17, 2023) (quoting Robinson, 160 F.3d at
1281 (cleaned up)).
In making these determinations, the Court may refer to affidavits, briefs, and
depositions. See Jones v. Eagle-North Hills Shopping Centre, L.P., 478 F. Supp. 2d 1321,
1326 (E.D. Okla. 2007) (citing National Association of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319, 1325 (D.C. Cir. 1982) and Association for Disabled Americans,
Inc. v. Integra Resort Management, Inc., 385 F. Supp. 2d 1272, 1287 (M.D. Fla. 2005)).
Furthermore, the Court is entitled to rely on its own knowledge and experience in
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determining an appropriate number of hours for the relief requested. See Davis v. DuraLine Corp., 2023 WL 6129489, at *3 (E.D. Okla. Sept. 19, 2023); Mares, 801 F.2d at 1203
(“A general reduction of hours claimed in order to achieve what the court determines to be
a reasonable number is not an erroneous method, so long as there is sufficient reason for
its use.”); Jones, 478 F. Supp. 2d at 1326 (“[T]he Court may consider a request for attorney
fees in light of its own knowledge and experience with or without the aid of witnesses as
to value or hours dedicated to litigation.”).
Defendant’s motion seeks to recover fees for time billed by four attorneys and a
paralegal. Specifically, Defendant seeks to recover the following fees:
Name
Neal Sweeney
Partner
Amy Anderson
Partner
Bradley Sands
Associate
Caitlin Kicklighter
Associate
Samantha Miller
Paralegal
Total

Hours
Worked
20.6

Billed Hourly Rate 2

Fees Incurred

$495

$10,197.00

27.9

$460

$12,834.00

47.4

$350

$16,590.00

58.2

$330

$19,206.00

2.4

$235

$564.00

156.5

$59,391.00

The Court carefully evaluated Defendant’s fee request, keeping in mind the factors
identified by the Tenth Circuit to consider when “determin[ing] the reasonableness of the
number of hours expended in litigation,” including:
The hourly rates requested in Defendant’s motion were reduced from their regularly charged
hourly rates. See Docket No. 135, Ex. 1.
2

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(1) whether the tasks being billed would normally be billed to a paying client,
(2) the number of hours spent on each task, (3) the complexity of the case,
(4) the number of reasonable strategies pursued, (5) the responses
necessitated by the maneuvering of the other side, and (6) potential
duplication of services by multiple lawyers.
Stenson, 86 F.4th at 879 (internal quotations omitted). On this basis, the Court finds some
reductions are necessary as to the hours expended in this matter as set forth below.
1. Fees incurred in making the motion
When a party successfully brings a motion to compel under Rule 37, the court must
“require the party or deponent whose conduct necessitated the motion . . . to pay the
movant’s reasonable expenses incurred in making the motion. . . .” Fed. R. Civ. P.
37(a)(5)(A). “This language has been interpreted differently by different courts, with the
central question being what activities are involved in making the motion to compel or other
discovery motion.”

Laca v. United States, 2024 WL 4203494, at *8

(N.D. Okla.

September 16, 2024) (citing L.H.H. ex rel. Hernandez v. Horton, 2015 WL 1057466, at *5
(N.D. Ind. March 10, 2015) (“There is some inherent ambiguity in the phrase ‘making the
motion’ . . . since neither the phrase itself, nor the Rule generally, says much about what
tasks are part of making a motion and which, though ancillary and related, are not.”)). In
summarizing the issue, the Laca court noted that “[m]ost courts have recognized the
limiting nature of Rule 37’s language and require some nexus between the activity billed
and the ultimate filing of the motion, id. (citing Kodiak Cakes, LLC v. JRM Nutrasciences,
LLC, 2021 WL 1171706, at *2 (D. Utah Mar. 29, 2021)), but also noting that some courts
have taken a narrow interpretation of only recovering fees for drafting and filing the motion
and any reply in support, id. at *8-9 (citing Brown v. City of Glendale, 2019 WL 3412585,
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at *3–4 (D. Ariz. July 29, 2019) (the court should “reduce any assessment to reflect [only]
Defendants’ reasonable attorneys’ fees and costs in drafting and filing the motion and any
reply in support, reviewing Plaintiff’s response to the motion, and preparing for and
attending the” hearing, and rejecting “time spent reviewing deficient discovery responses
and meeting-and-conferring with opposing counsel”); Bland v. Booth, 2020 WL 13700683,
at *2 (E.D.N.C. March 23, 2020) (time spent “in an effort to resolve the dispute . . . without
court intervention . . . is not properly compensable because such efforts are a prerequisite
to filing a motion to compel and therefore lie outside its scope”).
Like the court in Laca, this Court declines to adopt the overly restrictive
interpretation of Rule 37 advocated by Plaintiff that recoverable fees include only those
fees incurred in drafting, filing or attending hearings regarding the motion to compel.
Nonetheless, the Court agrees that Defendant’s Motion includes a variety of tasks that,
although likely necessary, “would have been performed regardless of whether a motion to
compel was filed.” Perregrine Communications, Inc., 2009 WL 1084829, at *2 (D. Colo.
April 21, 2009) (citing Primex, Inc. v. Visiplex Technologies, Inc., 2006 WL 538992, *3
(W.D.Wis. 2006) (declining to award attorney’s fees for time spent completing tasks that
would have been performed regardless of whether a motion to compel was filed); Creative
Resources Group of N.J., Inc. v. Creative Resources Group, Inc., 212 F.R.D. 94, 104
(E.D.N.Y. 2002) (holding that a party could not recover fees under Rule 37 for work that
would have been incurred in the course of normal discovery). For example, Defendant
includes multiple time entries for tasks such as reviewing or analyzing Plaintiff’s discovery

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responses and objections, reviewing and analyzing various depositions, and legal research
regarding Fed. R. Civ. P. 30(b)(6) standards. 3 Additionally, beginning on August 28, 2024,
Defendant has multiple time entries related to drafting a discovery deficiency letter to
Plaintiff’s counsel. See Docket No. 135, Ex. A-1. For example, over a two-month period
approximately 22 hours are billed for drafting a discovery deficiency letter and additional
hours are incurred reviewing the response and drafting a following up letter. Id. While
likely a prerequisite step in ultimately bringing the motion to compel, under the
circumstances the Court cannot find such an extensive expenditure of time to have a
reasonable nexus to the ultimate motion. Instead, the Court finds that much of these time
entries appear to be focused on analyzing the discovery and damages issues underlying the
various discovery disputes. As such, the Court strikes such hours as not reasonably related
to the motion to compel to be recoverable.
2. Block billing and vague time entries
Many time entries include the listing of multiple tasks performed on a single day by
a lawyer without any contemporaneous allocation of the specific time for each task.
Instead, Defendant has, apparently subsequent to issuing the invoices, revised the entries
to allocate specific time for the tasks for which it now seeks to recover. See, e.g., Mr.
Sands entry for September 3, 2024. Even then, however, on multiple occasions Defendant
does not specifically allocate the time for each distinct task for which it seeks to recover

See, e.g., Ms. Anderson entries on August 13, 15, and 20, 2024; Ms. Kicklighter entries on
September 12, 17, and 18, 2024. See Docket No. 135, Ex. A-1
3

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for a particular day. See, e.g., Mr. Sands entry for October 2, 2024. This is classic “block
billing” that has long been discouraged in fee applications. See Dura-Line, 2023 WL
6129489, at *3 (citing Barbosa v. Nat’l Beef Packing Co., LLC, 2015 WL 4920292, at *9
(D. Kan. Aug. 18, 2015) (“‘Block billing’ is the practice of lumping multiple tasks into a
single entry of time such that the billing entry does not delineate how hours were allotted
to specific tasks.”) (citing Cadena v. Pacesetter Corp., 224 F.3d 1203, 1214-1215 (10th
Cir. 2000).
“[W]here block billing makes it difficult, if not impossible, for the Court to
determine the amount of time spent on specific tasks, a general reduction in attorney fees
may be warranted.” Oklahoma Nat. Gas Co. v. Apache Corp., 355 F. Supp. 2d 1246, 1264
(N.D. Okla. 2004) (citing Robinson, 160 F.3d at 1281 (“[A] district court may discount
requested attorney hours if the attorney fails to keep ‘meticulous, contemporaneous
records’ that reveal ‘all hours for which compensation is requested and how those hours
were allotted to specific tasks.’”)); see also Ross v. Rothstein, 2016 WL 274878, at *6 (D.
Kan. Jan. 22, 2016) (“[T]he Tenth Circuit has determined that a discount of the requested
hours is warranted if the records submitted do not allow the Court to determine how counsel
allotted the time to specific tasks and the reasonableness of that time.”) (citing Cadena,
224 F.3d at 1215 (affirming district court’s refusal to reduce a fee request based on
counsel’s block billing because the billing records submitted allowed the court to determine
the time allotted to specific tasks and the reasonableness of the time)). “Block billing does
not[, however,] call for disallowing the entire sum, although the Court may reduce the

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overall amount.” Payne v. Tri-State Careflight, LLC, 278 F. Supp. 3d 1276, 1298 (D.N.M.
2017). Although Defendant allocates the requested time for the block billing entries, it is
apparent these allocations were not done contemporaneously to the tasks performed or even
when the invoices were prepared and were not allocated by each requested task within the
block billing entry. Because of the difficulty in evaluating the reasonableness of such
entries, the Court finds a reduction is appropriate due to the block billing submitted by
Defendant’s counsel in this case. See, e.g., Barbosa, 2015 WL 4920292, at *9 (applying a
general reduction of 50% to block-billed entries). The Court therefore reduces otherwise
recoverable block billing entries by 25% and, where the requested block billed time
includes allowed and disallowed time, the entry is reduced by 50%.
Defendant also has entries for which the descriptions are vague. For example:
“[w]ork on motion to compel” Ms. Anderson entries on October 8 and 10, 2024; “[w]ork
on motion to compel documents” Ms. Anderson entry on October 11, 2024; “continue to
work on Motion to Compel” Mr. Sands entry on October 4, 2024; and “working on
discovery disputes” Mr. Sweeney entry on October 9, 2024. See Docket No. 135, Ex. A1. Such vague descriptions make it difficult for the Court to assess reasonableness and the
actual task performed, including “‘whether the attorney’s hours were necessary under the
circumstances’ and ‘approaches this reasonableness inquiry much as a senior partner in a
private law firm would review the reports of subordinate attorneys when billing clients.’”
Read v. Oklahoma Flintrock Prod., LLP, 2023 WL 3510494, at *3. Nonetheless, the Court
can “rely on its own knowledge and experience in determining an appropriate number of

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hours for the relief requested.” Dura-Line, 2023 WL 6129489, at *3 (citing Mares, 801
F.2d at 1203 (“A general reduction of hours claimed in order to achieve what the court
determines to be a reasonable number is not an erroneous method, so long as there is
sufficient reason for its use.”); Jones, 478 F. Supp. 2d at 1326 (“[T]he Court may consider
a request for attorney fees in light of its own knowledge and experience with or without
the aid of witnesses as to value or hours dedicated to litigation.”). Vague or extremely
general task descriptions, particularly when used by multiple attorneys for similar tasks
make it difficult for the Court to evaluate the reasonableness of the time expended.
Therefore, the Court reduces vague time entries for otherwise recoverable tasks by 25%.
3. Duplicative billing
In several instances, Defendant seeks to recover fees from multiple attorneys for the
same or a similar task. For example, the November 22, 2024, entries by Mr. Sands, Ms.
Kicklighter and Ms. Anderson all involve reviewing Plaintiff’s response to the motion to
compel and drafting a reply, and the December 4, 2024, entries by Ms. Anderson, Ms.
Kicklighter and Mr. Sands all involve reviewing and revising the reply. See Docket No.
135, Ex. A-1. Where multiple attorneys billed for the same task, the Court allows recovery
of only one attorney’s time for such task.
4. Proportionality and Burk factors
Plaintiff argues that the total fees requested by Defendant are not proportional to the
case because the discovery obtained by the motion to compel is not relevant to the issues
to be tried in the case.

Additionally, Plaintiff argues Mr. Sweeney’s declaration
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inadequately supports the fee motion because it does not address all the Burke factors set
forth in Fleig v. Landmark Construction Group, 2024 OK 24, 549 P.3d 1208.
First, the Court considered the factors set forth by the Tenth Circuit for determining
the reasonableness of the requested hours, including the complexity of the case and efforts
by Defendant necessitated by Plaintiff’s discovery conduct. See Stenson, 86 F.4th at 879.
Moreover, much of Plaintiff’s argument regarding proportionality is simply an attempt to
relitigate the issues resolved in the motion to compel and are not relevant here. Second, as
set forth above, the Court reduced the requested time based on the lack of a sufficient nexus
to the motion to compel, block billing, and vague and duplicative time entries such that it
is allowing the recovery of only reasonable time related to the motion to compel. While
the discovery issues presented in the motion to compel were not particularly complex, it
was Plaintiff’s multiple failures to fulfill its discovery obligations that necessitated the
motion to compel and significantly contributed to the size of the attorneys’ fee request.
Further, Plaintiff has not shown that Defendant was obligated to file a “Burke affidavit” in
support of its motion.

Therefore, the Court finds that Mr. Sweeney’s declaration

adequately supports the motion for attorneys’ fees as adjusted herein.
5. Reasonable hours billed
Applying the above-described reductions and adjustments, the Court finds the
following hours to be reasonable.

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i.
Date
10/14/24

10/15/24

10/24/24

10/25/24

Neal Sweeny
General
Description
Work on discovery,
prep for discovery
conference and
motion to compel
Prepare and
participate in
discovery
conference; meet
and confer with
opposing counsel;
follow-up with
same
Work with Amy
Anderson re
drafting motion to
compel; follow up
re motion to
compel
Working on motion
compel

10/30/24 Working on
discovery and
motions
Total

ii.

Amy K. Anderson

Date

General
Description
Work on motion to
compel
Analyze court’s
discovery
order/communicate
with Plaintiff

9/26/24
10/2/24

Hours

Adjustment/Reduction

Hours Allowed

2.20

Block billing; includes
disallowed entry; vague
(50%)

1.1

5.0

Block billing (25%)

3.75

2.5

Block billing; vague;
duplicative with AKA
entry on 10/24/24

0.0

1.6

Block billing; includes
disallowed entry; vague
(50%)
Vague; duplicative

.80

1.2
12.5

0.0
5.65

Hours

Adjustment/Reduction

Hours Allowed

.60

Vague (25%)

.45

.40

.40

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10/3/24

Communicate with
court re discovery
conference
Work on motion to
compel

1.0

Block billing; includes
disallowed entry (50%)

.50

1.8

.90

Review, prepare
outline for motion to
compel
Work on motion to
compel
Draft, revise motion
to compel
Work on motion to
compel
Work on motion to
compel; review,
analyze Plaintiff’s
response to
discovery
conference
Initial review of
Plaintiff’s letter
related to discovery
conference
Work on updating
motion to compel
and meet and confer
Revise motion to
compel
Work on motion to
compel and discuss
strategy re same
Work on motion to
compel

.60

Block billing; includes
disallowed entry; vague
(50%)
Block billing (25%)

.80

Vague (25%)

.50

.80

Block billing; includes
disallowed entry (50%)
Block billing (25%);
vague (25%)
Block billing; includes
disallowed entries;
vague (50%)

.40

10/25/24 Continue drafting,
revising motion to
compel &
declaration
10/29/24 Draft, revise motion
to compel and

.70

10/4/24
10/7/24
10/8/24
10/9/24
10/10/24
10/11/24

10/16/24

10/18/24
10/21/24
10/22/24
10/24/24

1.2
3.0

.45

.60
1.5

.30

.30

.40

.40

.60

Block billing (25%)

.50
3.0

1.0

.45
.50

Block billing; includes
disallowed entry; vague
(50%)
Block billing; includes
disallowed entry (50%)

1.5

Block billing (25%)

.75

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.35

discuss with
Kicklighter
11/22/24 Receive, analyze
response to motion
to compel

1.0

12/4/24

Draft, revise reply

1.0

12/5/24

Draft, revise reply
for motion to
compel

.80

Total

19.5

iii.
Date

Block billing;
duplicative with BES
and CRK entries on
11/22/24
Block billing;
duplicative with BES
and CRK entries on
12/4/24
Block billing;
duplicative with BES
and CRK entries on
12/5/24

0.0

0.0

0.0

9.95

Bradley E. Sands

General
Description
9/24/24 Outline Rule 37
arguments
9/25/24 Outline Rule 37
motion
9/26/24 Continue developing
Rule 37 arguments
10/2/24 Work with Anderson
and Kicklighter on
motion to compel
10/3/24 Drafting motion
requesting discovery
conference; continue
work on motion to
compel
10/4/24 Work on motion to
compel
10/14/24 Prepare outline of
talking points for
discovery
conference

Hours Adjustment/Reduction

Hours Allowed

.80

.80

1.5

Block billing (25%)

1.125

.90

Block billing (25%)

.675

2.0

Block billing; includes
disallowed entry; vague
(50%)
Block billing; includes
disallowed entries;
vague (50%)

1.0

Block billing; vague
(50%)
Block billing (25%)

.6

2.5

1.2
3.0

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1.25

2.25

10/31/24 Review and draft
motion to compel
11/1/24 Review & revise
motion to compel
and declaration
11/22/24 Analyze Plaintiff’s
response to motion
to compel and
develop arguments
for response
12/04/24 Review/revise reply
for motion to
compel
12/5/24 Review and revise
reply for motion to
compel
Total

iv.
Date
10/2/24
10/3/24
10/3/24
10/3/24
10/3/24
10/3/24
10/4/24

1.0

Block billing (25%)

.75

2.1

Duplicative with CRK
entries on 11/1/24

0.0

2.1

Duplicative with AKA
& CRK entries on
11/22/24

0.0

2.4

Duplicative with CRK
entry on 12/4/24

0.0

1.4

Duplicative with AKA
and CRK entries on
12/5/24

0.0

Hours

Adjustment/Reduction

Hours Allowed

1.3

Vague (25%)

.975

1.2

Vague (25%)

.90

20.9

8.45

Caitlin R. Kicklighter
General
Description
Rev 10th Cir. cases
in support of Rule
37 motion
Continue rev. 10th
Cir. cases in support
of motion to compel
Begin drafting
motion to compel
Begin drafting
declaration for
motion to compel
Revise argument in
motion to compel
Revise background
of motion to compel
Collect/organize
exhibits for motion
to compel

4.3

4.3

2.4

2.4

1.8

1.8

.60

.60

.80

.80

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10/4/24
10/11/24
10/23/24
10/25/24
10/31/24
11/1/24
11/01/24
11/1/24
11/22/24

11/25/24
12/2/24
12/3/24
12/3/24
12/4/24
12/5/24
12/5/24
Total

Continue revise
motion to compel
Revise motion to
compel
Revise motion to
compel and
declaration
Revise motion to
compel
Revise declaration
Finalize exhibits for
motion to
compel/declaration
Review/revise
motion to
compel/declaration
Finalize motion to
compel &
declaration
Review Plaintiff’s
response to motion
to compel and draft
reply outline
Revise outline of
reply
Begin drafting reply
Continue drafting
reply
Conference with
Brad Sands re
arguments in reply
Review and revise
reply
Review and revise
reply
Review and finalize
reply

1.5

1.5

1.4

1.4

3.1

3.1

1.7

1.7

4.2
1.2

Excessive (25%)

3.15
1.2

.80

.80

.90

.90

1.6

1.6

.60

.60

1.5
5.4

1.5
4.05

Excessive (25%)

.30

.30

.30

.30

1.4

1.4

.50

.50

38.8

35.775

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v.

Samantha Miller

Date

General
Description
Prepare exhibits to
motion and
declaration and file
with court

11/1/24

Total

II.

Hours

Adjustment/Reduction

Hours Allowed

1.2

1.2

1.2

1.2

Reasonableness of hourly billing rates
“To determine what constitutes a reasonable rate, the district court considers the

‘prevailing market rate in the relevant community.’” Laca, 2024 WL 4203494, at *11
(quoting Lippoldt v. Cole, 468 F.3d 1204, 1224 (10th Cir. 2006) (quoting Malloy, 73 F.3d
at 1018)). The party requesting attorney fees “must provide evidence of the prevailing
market rate for similar services by ‘lawyers of reasonably comparable skill, experience,
and reputation’ in the relevant community.” Id. (quoting Blum v. Stenson, 465 U.S. 886,
895 n.11 (1984)). “In making these determinations, the court may refer to ‘affidavits
submitted by the parties and other reliable evidence of local market rates. . . .’” Busby v.
City of Tulsa, 2018 WL 7286180, at *3 (N.D. Okla. Oct. 23, 2018) (quoting Case, 157 F.3d
at 1256). “[T]he Court may consider a request for attorney fees in light of its own
knowledge and experience with or without the aid of witnesses as to value or hours
dedicated to litigation. . . .” Jones, 478 F. Supp. 2d at 1326.
In support of its requested hourly rates, Defendant sets forth the background and
experience of each timekeeper on the matter and argues that this case requires the
specialized knowledge of construction attorneys.
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See Docket No. 135, Ex. A.

Additionally, Defendant notes that the hourly rates it seeks are reduced from their regular
hourly rates as attorneys located in Houston, Texas. Defendant also submits the affidavit
of Mark Banner, an attorney who has practiced in Oklahoma for 36 years in the areas of
civil litigation with a focus on oil and gas and energy litigation. Id., Ex. C. Mr. Banner
opines that although he believes the requested hourly rates for Mr. Sweeney ($495), Ms.
Anderson ($460) and Ms. Miller ($235) are reasonable rates in the Oklahoma market, he
believes Ms. Kicklighter’s hourly rate should be adjusted from $330 to $255 and Mr.
Sands’ hourly rate from $350 to $330. Id.
Plaintiff counters that, although conceding the experience of the Defendant’s
various attorneys, the issue involved merely a motion to compel in a basic construction
case and Defendant failed to submit a required Burke affidavit addressing the various
factors in Fleig, 2024 OK 24, 549 P.3d 1208. See Docket No. 137, pp. 20-22. Defendant
further highlights several cases from the federal courts for the Northern and Eastern
Districts of Oklahoma in which hourly rates less than those requested by Defendant were
awarded. Id., pp. 22-23. Noticeably absent, however, is any discussion by Plaintiff of the
fee recently awarded in the Northern District of Oklahoma case in which Plaintiff’s counsel
requested and was awarded an hourly rate of $400 or the other cases discussed therein. See
Laca, 2024 WL 4203494, at *12. See also Chatman v. Buller, 2013 WL 5729603, at *2
(E.D. Okla. Oct. 22, 2013) (finding Tulsa, Oklahoma part of the “relevant area for purposes
of determining a reasonable rate,” due to its proximity to the Eastern District of Oklahoma
and the number of Tulsa-based attorneys who practice in this Court). Additionally,
Plaintiff submitted the affidavit of Joseph Farris, an attorney who has practiced in
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Oklahoma for 48 years in the areas of civil litigation with a focus on areas including
construction law. Mr. Farris opines that the Defendant’s requested hourly rates are not
consistent with the hourly rates charged in the Eastern District of Oklahoma, asserting they
are at least one-third higher than the prevailing local rates for attorneys with similar
experience. Id. Mr. Farris opines that reasonable hourly rates are $300 for Ms. Anderson,
$250 for Mr. Sands, $200 for Ms. Kicklighter and $150 for Ms. Miller. Id. Mr. Farris
believes, however, that Mr. Sweeney’s hourly rate of $495 is reasonable. Id.
Based on Mr. Farris’ concession that Mr. Sweeney’s requested rate is reasonable,
the Court accepts his hourly rate as unchallenged and will address the other timekeeper’s
rates. Ms. Anderson is a partner at Jones Walker with 12 years’ experience in complex
commercial and construction litigation in federal and state courts, who routinely handles
construction delay and defect claims. See Docket No. 135, Ex. 1. While experienced in
construction litigation, Ms. Anderson’s experience is significantly less than Mr. Sweeney,
who has over 30 years of construction law experience. Id. The Court further notes that
under their preadjusted rates, Mr. Sweeney’s hourly rate is $765, and Ms. Anderson’s
hourly rate is $530. Id. Thus, Ms. Anderson’s proposed hourly rate is a substantially
higher proportion of Mr. Sweeney’s adjusted rate of $495 without providing any basis to
support such a rate. Therefore, a reduction to Ms. Anderson’s hourly rate is warranted to
align it with the prevailing market rate in Oklahoma as compared to Mr. Sweeney’s
unopposed rate. The Court finds Ms. Anderson’s reasonable hourly rate for purposes of
the motion to compel is $390.

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Mr. Sands is a senior associate who has been an attorney for approximately eight
years and at Jones Walker since 2019 with a practice focused exclusively on the
construction industry. Id. Prior to law school, Mr. Sands worked as a civil engineer. Id.
The Court finds Mr. Farris’ proposed rate of $250 to be well below Oklahoma’s prevailing
market rate for with someone with Mr. Sands’ specialized background and experience. Mr.
Banner recommends that Mr. Sands’ reasonable hourly rate is $330 and the Court agrees
this aligns with his experience and Oklahoma market rates.
Ms. Kicklighter is a first-year associate attorney who works exclusively in the Jones
Walker construction practice group. Id. Although a relatively new lawyer, Ms. Kicklighter
worked with Mr. Sweeney and Mr. Sands as a case clerk on several complex cases at Jones
Walker before attending law school. Id. The Court finds Mr. Farris’ proposed rate of $200
to be below Oklahoma’s prevailing market rate for with someone with Ms. Kicklighter’s
background and experience. Mr. Banner recommends that Ms. Kicklighter’s reasonable
hourly rate is $255 and the Court agrees this aligns with her experience and Oklahoma
market rates.
Ms. Miller is a paralegal with four years’ experience in the Jones Walker
construction practice group. Id. Ms. Miller has worked with Mr. Sweeney and Mr. Sands
on several complex matters. Id. Given Ms. Miller’s relative limited experience in
construction litigation, however, the Court finds Ms. Miller’s reasonably hourly rate for
purposes of the motion to compel is $200.
In summary, the Court finds that Defendant should be awarded the following
attorney’s fees related to its motion to compel.
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Timekeeper

Total Hours

Hourly Rate

Fees

Neal Sweeney

5.65

$495

$2,796.75

Amy K. Anderson

9.95

$390

$3,880.50

Bradley E. Sands

8.45

$330

$2,788.50

35.775

$255

$9,122.63

1.2

$200

$240.00

Caitlin R. Kicklighter
Samantha Miller
Totals

61.025

$18,828.38

Therefore, Defendant is awarded reasonable attorneys’ fees in the amount of $18,828.38,
for 61.025 hours of work related to the motion to compel.
Conclusion
Accordingly, as set forth herein, Defendant Stearns, Conrad and Schmidt,
Consulting Engineers, Inc.’s Motion for Attorneys’ Fees [Docket No. 135] is GRANTED
IN PART and DENIED IN PART.
IT IS SO ORDERED this 6th day of March 2025.

GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE

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