Couture et al v. Anderson

Filing 64

ORDER granting in part and denying in part plaintiffs' request for attorneys fees in connection with 60 Order on Motion to Compel, Order on Motion for Sanctions. Signed by US Magistrate Judge Veronica L. Duffy on 04/09/12. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
PIERRE COUTURE AND
LINDA V.M. BEAUPARLANT,
Plaintiff and Third Party
Defendants,
vs.
NICKI L. ANDERSON,
Defendant,
vs.
MARK ANDERSON,
Third Party Plaintiff.

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CIV. 10-5026

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
REQUEST FOR ATTORNEYS’
FEES
[Docket No. 61]

INTRODUCTION
Previously, this court granted in part and denied in part plaintiffs’ motion
to compel. See Docket No. 60. In so ruling, the court indicated that it would
award reasonable attorney’s fees for plaintiffs’ efforts in bringing the motion.
Id. Pending now before the court is plaintiffs’ request for $10,319 in attorneys
fees for bringing that motion. See Docket Nos. 61, 62. Defendant Nicki
Anderson objects to the amount requested, arguing that the amount is not
reasonable. See Docket No. 63.

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FACTS
The facts pertinent to the underlying motion to compel are outlined in
this court’s prior order and are incorporated herein by reference. See Docket
NO. 60. In summary, this action is a garden-variety motorcycle accident that
resulted in personal injuries. Jurisdiction is founded on diversity of citizenship
of the parties. The major issue regarding liability is whether Mr. Couture
caused the accident by crossing over the center dividing line in the highway,
resulting in the collision with Ms. Anderson, or whether Ms. Anderson crossed
the center line.
In February, 2009, Ms. Anderson’s insurance company wrote a letter to
Mr. Couture’s insurance company making reference to an accident
reconstruction report obtained by Ms. Anderson’s insurer. Ms. Anderson’s
insurer relied on this report to deny liability for Ms. Anderson for any damages
from the accident. Ms. Anderson herself made reference to this report in
answers to interrogatories and in her deposition. Nevertheless, Ms. Anderson
refused to produce a copy of the report in response to discovery requests for it.
Ms. Anderson first claimed privilege for the document, then later denied that
the document ever existed.
Plaintiffs’ motion to compel was a straightforward request that the court
either order Ms. Anderson to produce the accident report or to enter an order
dismissing Ms. Anderson’s counterclaim, dismissing her husband’s third party

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claim, and prohibiting Ms. Anderson from using the report at trial. Plaintiffs
also sought production of certain photographs in Ms. Anderson’s possession
that had been used in the deposition of a South Dakota Highway Patrolman.
DISCUSSION
A.

Lodestar Method of Determining Reasonable Award of Attorney’s
Fees
Plaintiffs have the burden to establish a factual basis for the award of

fees they request. The court must evaluate plaintiffs’ request for attorney’s fees
to determine whether it is reasonable. See Johnston v. Comerica Mortg. Corp.,
83 F.3d 241, 246 (8th Cir. 1996). “Because any award [of attorneys fees] has
the potential for ‘precedential value’ in future cases, the Court owes a duty to
the principled development of the law to exercise careful judgment in reviewing
agreed-upon [or undisputed] fees.” Duhaime v. John Hancock Mut. Life Ins.
Co., 989 F. Supp. 375, 379 (D. Mass. 1997) (citing Weinberger v. Great N.
Nekoosa Corp., 925 F.2d 518, 526 (1st Cir. 1991)).
The appropriate amount of attorneys fees is highly fact-specific to the
case. There are two methods of determining attorneys fees: the lodestar
method and the “percentage of the benefit” method. See H.J. Inc. v. Flygt
Corp., 925 F.2d 257, 259-60 (8th Cir. 1991); Comerica Mortg. Corp., 83 F.3d at
246; Walitalo v. Iacocca, 968 F.2d 741, 747-48 (8th Cir. 1992). Here, the
request for attorneys fees does not come at the end of the case, but rather at

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an interim point in the litigation, so the court chooses to employ the lodestar
method of determining reasonable attorneys fees.
The lodestar is figured by multiplying the number of hours reasonably
expended by the reasonable hourly rates. Finley v. Hartford Life & Accident
Ins. Co., 249 F.R.D. 329, 332-33 (N.D. Cal. Feb. 22, 2008); Tequila Centinela,
S.A. de C.V. v. Bacardi & Co., Ltd., 248 F.R.D. 64, 68 (D.D.C. 2008); Creative
Resources Group of New Jersey, Inc. v. Creative Resources Group, Inc., 212
F.R.D. 94, 103 (E.D.N.Y. 2002); Kayhill v. Unified Gov’t. of Wyandotte County,
197 F.R.D. 454, 459 (D.Kan. 2000); and Trbovich v. Ritz-Carlton Hotel Co., 166
F.R.D. 30, 32 (E.D. Mo. 1996). The burden is on the moving party to prove that
the request for attorneys’ fees is reasonable. Tequila Centinela, S.A. de C.V.,
248 F.R.D. at 68; Creative Resources Group, Inc., 212 F.R.D. at 103; Kayhill,
197 F.R.D. at 459.
Once the lodestar is calculated, there are twelve factors that are relevant
in considering whether that figure should be adjusted up or down:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of 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 attorneys; (10) the
undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar
cases.

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See Hensley v. Eckerhart, 461 U.S. 424, 430 n.3, 434 (1983) (citing the
American Bar Association Code of Professional Responsibility, Disciplinary
Rule 2-106). “[T]he most critical factor is the degree of success obtained.” Id.
at 436.
B.

Reasonable Hourly Rate is the Prevailing Rate in the District of
South Dakota
The reasonable hourly rate is usually the ordinary rate for similar work

in the community where the case is being litigated. Tequila Centinela, S.A. de
C.V., 248 F.R.D. at 68 (citing Laffy v. Northwest Airlines, Inc., 746 F.2d 4, 16
(D.C. Cir. 1984) (hourly rate must be sufficient to attract competent counsel,
but not so excessive as to produce a windfall, and generally must be in line
with rates charged by other attorneys of comparable skill, reputation, and
ability within the community.)
The plaintiffs submit an itemization for fees requested that includes time
billed by Andrea Doran, David Barari, and G. Verne Goodsell. However,
plaintiffs never inform the court of the total hours attributable to each
individual biller. Plaintiffs also fail to set forth what the hourly rates are for
each biller represented on the itemization. By applying the court’s own
computations, the court deduces that the hourly rate billed by Andrea Doran is
$90 per hour; the hourly rate for David Barari is $150 per hour; and the hourly
rate for G. Verne Goodsell is $300 per hour.

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Plaintiffs never provide the court with any evidence of whether these
hourly rates are customary or reasonable in this community. Plaintiffs never
state what the qualifications of the three persons are who have billed time on
this itemization. Plaintiffs never even state whether the persons listed are
attorneys. The court is familiar with Mr. Barari and Mr. Goodsell, and can take
judicial notice of the fact that they are attorneys. However, the court has no
knowledge of Ms. Doran. She may be an attorney new to this area, she may be
a paralegal, she may be a secretary who is not entitled to bill time under state
law. Since it is plaintiffs’ burden to show entitlement to the fees requested and
plaintiffs have entirely failed to address any information regarding Ms. Doran,
the court disallows entirely the fees requested for Ms. Doran.
That leaves Mr. Barari and Mr. Goodsell. Although the court is aware
that these gentlemen are lawyers, plaintiffs cite to no information that would
allow the court to determine whether the hourly rates they are requesting are
prevailing attorneys fee rates for personal injury litigation in South Dakota.
However, the court may determine those rates based on its own knowledge of
prevailing rates here. See Creative Resources Group, Inc., 212 F.R.D. at 103104 (holding that “it is within the judge’s discretion to determine reasonable
fees based on his or her knowledge of prevailing community rates”).
Experienced, partner-level trial counsel in this community have received
awards of attorneys fees ranging from $200.00 per hour to $225.00 per hour in

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lawsuits requiring highly specialized knowledge such as the Voting Rights Act.
See Cottier v. City of Martin, Civ. No. 02-5021, Docket No. 469, page 6 (March
25, 2008); Bone Shirt v. Hazeltine, Civ. No. 01-3032, Docket No. 411, page 4
(June 22, 2006). In other cases where the hourly rate is limited by statute,
courts have awarded fees based on an hourly rate of $150 per hour. See Kahle
v. Leonard, Civ. No. 04-5024, Docket No. 259 (D.S.D. July 14, 2008).
In awards of attorneys fees as sanctions for motions to compel, the
hourly rates of attorneys’ fees have ranged from $145 per hour to $250 per
hour. See Heil v. Belle Starr Saloon & Casino, Inc., Civ. No. 09-5074, Docket
No. 68 (D.S.D.); Beyer v. Medco Ins. Group, Civ. No. 08-5058, Docket No. 65
(D.S.D.); Howard Johnson Internat’l, Inc. v. Inn Development, Inc., Civ. No. 071024, Docket No. 73 (D.S.D.); Oyen v. Land O’Lakes Inc., Civ. 07-4112, Docket
Nos. 56, 62 (D.S.D.).
Hourly rates of up to $365 per hour have been approved in this district.
Nienaber v. Citibank (South Dakota) N.A., Civ. No. 04-4054, Docket No. 101
(D.S.D. July 5, 2007). However, the decision in Nienaber is distinguishable.
That was a case involving a high degree of risk for the plaintiff’s attorney and a
high degree of specialized knowledge as it was a class action representing at
least 1,000,000 class members under the Fair Debt Reporting Act against a
very large South Dakota employer. Id. at 1-2, 6. Few lawyers in this district
could be expected to have the funds to finance such a large class action, and

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fewer still would be expected to risk their funds against a defendant who might
be sympathetic to a large number of prospective jurors. Thus, it was
understandable that out-of-state counsel were retained and that their fees were
based on the prevailing rates in their state, not this district. Furthermore, the
Nienaber case is distinguished by virtue of the fact that the parties had a “clear
sailing” provision in their settlement agreement whereby the defendant agreed
not to oppose the application for attorneys fees in return for the plaintiffs’
promise to cap their request for attorneys fees at an agreed-upon figure. Id. at
1-2.
The court concludes on the basis of its own knowledge of prevailing rates
in the District of South Dakota, based on recent awards of attorney’s fees in
this district, and based on the straightforward nature of the legal issues in this
case that an hourly rate of $300 per hour for Mr. Goodsell’s time is not
justified, and that $200.00 per hour should be the prevailing reasonable hourly
rate for his time. Again, plaintiffs fail entirely to address Mr. Goodsell’s
qualifications or entitlement to such an hourly rate. However, the court takes
judicial notice of the fact that Mr. Goodsell is a senior partner with
considerable litigation experience and a past president of the State Bar of
South Dakota. Nevertheless, as noted above, this was a run-of-the-mill
discovery motion in a garden-variety personal injury case that does not require
specialized legal knowledge or skill.

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The rate at which Mr. Barari’s time is billed is $150 per hour. Again, the
court has had to glean information about Mr. Barari from its own efforts as
plaintiffs do not inform the court as to his qualifications or experience.
Mr. Barari is a relatively new attorney with less than five years experience
practicing law. Although his hourly rate is on the high end, the court finds it
to be within the range of prevailing rates for attorneys at Mr. Barari’s level of
experience in this community for similar legal work. See Textron Financial
Corp. v. JWL, Inc., Civ. No. 10-5060, Docket No. 71, at page 9 (D.S.D. Feb. 8,
2012) (approving $175 per hour in routine debt collection action for local
counsel with approximately 10 years experience practicing law).
D.

Reasonable Hours
Courts are charged with excluding from awards of attorneys fees hours

that were not “reasonably expended.” Hensley, 461 U.S. at 434. “Cases may
be overstaffed, and the skill and experience of lawyers vary widely.” Id. In
determining the reasonable hours expended by plaintiffs’ lawyers in this
matter, the court turns to the itemized billing statement provided by plaintiffs
in support of their request for attorneys fees. See Docket No. 62-1.
The court notes that virtually every item on the billing statement
submitted by plaintiffs appears to have some duplication of work. Multiple
billers–usually both Mr. Barari and Mr. Goodsell in addition to Ms. Doran-reviewed the same draft of the same pleadings, whether it was a pleading or

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letter received from defendant, or whether it was plaintiffs’ own pleading or
letter being sent to defendant. See, e.g. Docket No. 62-1.
The court has already reduced these hours by disallowing the billing by
Ms. Doran, because it is factually unsupported. By adding up all of
Ms. Doran’s entries on the itemized bill, the court concludes that her time
totals 24.6 hours. At a rate of $90 per hour, this reduces plaintiffs’ submitted
billing statement by $2,214.1
By adding Mr. Goodsell’s individual time entries, the court concludes
that his total time billed on this itemization was 10.5 hours. Reducing his
hourly rate from $300 per hour to $200 per hour reduces the total of
Mr. Goodsell’s billing on this statement to $2,100, a reduction of $1,050. The
remaining sum requested would thus be $7,055.91.
Plaintiffs never explain why it was necessary for both attorneys to review
every in-coming and out-going letter or pleading. Certainly, if two attorneys are
handling a file together, there is some degree of overlapping effort. But not
every action need be duplicated. In addition, when a firm chooses to put two
attorneys on a simple and straightforward personal injury file, that is to some
degree a decision meant to benefit the firm by allowing it to provide mentoring
to its younger attorneys and to provide continuity to its clients. Finally, the

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The court includes in Ms. Doran’s total 0.2 hours attributed to “Donna
Craven, CP,” about whom plaintiffs also fail to tell the court anything.
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court notes that, after deducting Ms. Doran’s hours, plaintiffs request
compensation for 39.5 attorney hours for a total in fees (at Mr. Goodsell’s
reduced hourly rate of $200 per hour) of slightly more than $7,000. Both the
hours and the total fee is high for an award of attorneys fees on a motion to
compel where the issues did not involve any complicated legal analysis or a
lengthy laundry-list of items to be addressed.
In this district, this court has approved requests for attorneys fees
ranging from $1,041.45 to $1,509.97 for run-of-the-mill motions to compel.
See Heil, Civ. No. 09-5074, Docket No. 68 ($1,041.45 awarded); Howard
Johnson Internat’l. Inc., Civ. No. 07-1024, Docket No. 73 ($1,453.50 awarded);
Oyen, Civ. No. 07-4112, Docket Nos. 56 and 62 ($1,509.97 awarded to
defendant on defendant’s motion to compel; $1,140.75 awarded to plaintiff on
plaintiff’s motion to compel).
In one extraordinary case the plaintiff made a detailed motion to compel
involving 13 separate issues and the court granted that motion in pertinent
part. The plaintiff then had to make a second motion to compel when the
defendant refused to comply with the court’ previous order as to eight of the
thirteen issues. In that case, the court awarded $13,480 in attorneys’ fees
representing 53.92 hours on both motions. See Beyer, Civ. No. 08-5058,
Docket No. 65 (D.S.D.).

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Here, plaintiffs’ motion to compel presented only two issues, neither of
which were complex or difficult. Plaintiffs did file a 14-page initial
memorandum in support of their motion along with numerous exhibits, and a
13-page reply brief. In reviewing prior similar motions, the court notes that
attorneys have spent anywhere from 4.8 hours to 10.9 hours on routine
motions to compel. See Heil, Civ. No. 09-5074, Docket No. 68; Howard
Johnson Internat’l. Inc., Civ. No. 07-1024, Docket No. 73; Oyen, Civ. No. 074112, Docket No. 56. Giving plaintiffs the benefit of the doubt, the court finds
that a reasonable number of hours to have spent on their motion to compel
would be 15 hours at the outside. At 15 hours divided evenly between
Mr. Barari and Mr. Goodsell, and hourly rates of $150 and $200 per hour
respectively, plaintiffs are entitled to reasonable attorneys fees in the amount of
$2,625 plus sales tax of $157.50. Plaintiffs’ request of $23.07 for copying and
faxing costs is reasonable.
Ultimately, the burden is on plaintiffs to prove that their request for
attorneys’ fees is reasonable. Tequila Centinela, S.A. de C.V., 248 F.R.D. at 68;
Creative Resources Group, Inc., 212 F.R.D. at 103; Kayhill, 197 F.R.D. at 459.
By failing to explain why the total hours or the hourly rates, which are far
above normal for similar motions, were necessary in this particular case,
plaintiffs did not carry their burden.

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CONCLUSION
Good cause appearing, it is hereby
ORDERED that plaintiffs’ request for attorney’s fees on their motion to
compel is granted in part and denied in part. Plaintiffs are awarded fees and
costs as follows:
Mr. David Barari

7.5 hours at $150/hr

$1,125.00

Mr. G. Verne Goodsell 7.5 hours at $200/hr

$1,500.00

Total Attorney’s Fees

$2,625.00

6% Sales Tax on Attorneys Fees

$ 157.50

Costs

$

TOTAL AWARD OF FEES & COSTS

$2,805.57

23.07

It is further
ORDERED that defendant Nicki L. Anderson shall remit the above sum
to plaintiffs’ attorneys no later than 30 days from the date of this order.
Dated April 9, 2012.
BY THE COURT:

/s/

Veronica L. Duffy

VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE

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