Geiser v. Simplicity, Inc. et al
Filing
313
MEMORANDUM OPINION and ORDER: Confirming Pronounced Orders of the Court ; John Doe Defendants dismissed without prejdice; attorneys' fees are approved; remainder of rulings given 5/1/12 will be confirmed by separate order. Signed by Senior Judge Frederick P. Stamp, Jr on 5/24/12. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEANNIE GEISER, as Administratrix
of the Estate of J.G., deceased
and JEANNIE GEISER, individually,
Plaintiff,
v.
Civil Action No. 5:10CV21
(STAMP)
SIMPLICITY, INC. a/k/a
SIMPLICITY FOR CHILDREN,
SFCA, INC. d/b/a SIMPLICITY, INC.
a/k/a SIMPLICITY FOR CHILDREN,
BLACKSTREET CAPITAL MANAGEMENT INC.
d/b/a BLACKSTREET CAPITAL PARTNERS, LLC
d/b/a SIMPLICITY, INC.
a/k/a SIMPLICITY FOR CHILDREN
and d/b/a SFCA, INC.,
WAL-MART STORES EAST, LP,
WAL-MART STORES, INC.,
GRACO CHILDREN’S PRODUCTS INC.,
NEWELL RUBBERMAID, INC. d/b/a
GRACO CHILDREN’S PRODUCTS, INC.,
and JOHN DOE(S) MANUFACTURER/DISTRIBUTOR/
WHOLESALER,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDERS OF THE COURT
I.
Background
On March 21, 2012, the plaintiff in the above-styled civil
action filed a motion for disbursement of funds and petition and
application for permission to settle a wrongful death claim which
included minor beneficiaries. On that same day, the plaintiff also
filed a motion requesting that this Court appoint a guardian ad
litem to represent the minor beneficiaries’ interests in the
settlement.
This Court thereafter appointed attorney Karen E.
Kahle of Wheeling, West Virginia, as guardian ad litem and directed
her to file a response to the plaintiff’s petition and application
for permission to settle a wrongful death claim.
The guardian ad litem filed a response which questioned
portions of the plaintiff’s petition, including counsel for the
plaintiff’s
request
enumerated
expenses
for
a
claimed
45%
by
contingency
the
fee,
plaintiffs
a
as
number
of
litigation
expenses, and the proposed distribution of settlement funds between
the five beneficiaries, specifically the distribution of funds with
regard to the three minor beneficiaries.
In response to the
guardian ad litem’s concerns, this Court directed the parties to
meet and confer to discuss and attempt to resolve the issues raised
by the guardian ad litem in her response.
Following this order,
the plaintiff filed a response to the guardian ad litem’s response
to the plaintiff’s petition, wherein the plaintiff provided to this
Court, for the first time, itemized time sheets delineating the
amount of time that each of her attorneys had spent on this case.
On May 1, 2012, this Court held a hearing regarding the
plaintiffs’ petition for permission to settle this civil action.
At that hearing, counsel and the guardian ad litem reported that
they had reached a compromise which they proposed in open court.
This Court considered the explanations given for the compromise
reached, as well as the petition, the guardian ad litem’s original
concerns along with her explanation for why she believed the
compromise reached to be satisfactory and in the minors’ best
interest, the plaintiff’s response to the guardian ad litem’s
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response, and testimony offered by the plaintiff, in light of the
controlling law and made several rulings at the hearing.
order is in confirmation of those specific rulings.
This
A more
detailed order approving the settlement will be entered.
II.
Discussion
The compromise reached by the plaintiff and the guardian ad
litem regarding the requested amount of attorneys’ fees resulted in
the
amount
of
fees
settlement amount.
requested
remaining
at
45%
of
the
total
The guardian ad litem indicated that, in her
opinion, after reviewing plaintiff’s counsels’ provided statement
of time and labor spent on this case, such an award was reasonable
under the circumstances, and that the itemized time sheets resulted
in an hourly rate for all of plaintiff’s attorneys of $245.00 per
hour.
In considering this request and the guardian ad litem’s
ultimate endorsement of such an award, this Court considered the
reasonableness of the fee under the factors set forth by the West
Virginia Supreme Court of Appeals in Aetna Casualty & Surety Co. v.
Pitrolo, 176 W. Va. 190 (1986), which are identical to those set
forth by the United States Court of Appeals for the Fourth Circuit
in Allen v. United States, 606 F.2d 432, 436 (4th Cir. 1979).
These factors are:
(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
other employment by the attorney due to the acceptance of
the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the
client or circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputations, and
3
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.
Pitrolo, 176 W. Va. at 196.
At the hearing, this Court reviewed its findings regarding
each of the above Pitrolo factors, and based upon the unique facts
of
this
case,
as
well
as
the
time
sheets
provided
by
the
plaintiff’s attorneys, determined that the fee amount requested by
the plaintiff’s petition was reasonable.
This Court specifically
notes that the approval of the requested fee amount was due to the
dollar amount requested and its application to the unique facts and
circumstances of this case.
This Court did not adopt or endorse
the 45% contingency fee arrangement and made no findings with
respect to the hourly rates initially requested by the plaintiff’s
attorneys, but rather adopted the ultimate dollar amount due to the
itemized time sheets which result in a reasonable hourly fee as
applied to the total settlement.
With regard to the guardian ad litem’s concerns about expenses
sought by the petitions, the guardian ad litem and the plaintiff
also
agreed
after
meeting
and
conferring,
that
all
expenses
itemized by the plaintiff in her petition were properly included.
However, this Court disagreed in this regard and found that a
number of the requested expenses, specifically an unexplained
check, as well as payments for dental work, clothing purchases, and
trips to the salon for the plaintiff prior to her deposition, a
mediation in this case, and the ultimately vacated trial, were not
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chargeable as litigation expenses.
The amount of litigation
expenses awarded to the plaintiff was thus lowered accordingly.1
Finally, at the hearing, this Court approved a distribution of
settlement funds as amended from that delineated in the petition by
agreement of the guardian ad litem and the plaintiff. The terms of
the settlement and the distribution to the five beneficiaries,
including the three minor beneficiaries, will be fully described
and officially approved by separate order of this Court.
Further,
this Court approved guardian ad litem fees, denied all pending
motions in this case as moot, dismissed this civil action against
Simplicity, Inc. and the John Doe defendants without prejudice
based upon motion by the plaintiff, and dismissed the Wal-Mart
defendants and this case with prejudice pending the separate order
of this Court approving the settlement terms.
III.
Conclusion
For the reasons stated above, and in confirmation of the
pronounced rulings of this Court at the May 1, 2012 hearing, the
attorneys’ fees requested by the plaintiff are hereby APPROVED
based upon this Court’s analysis under Aetna Casualty & Surety Co.
v.
Pitrolo,
(supra),
and
the
hourly
rate
determined
reasonable using plaintiff’s counsels’ time sheets.
expenses are approved as adjusted by the Court.
the
parties,
the
John
Doe
defendants
1
are
to
be
Litigation
By agreement of
DISMISSED
WITHOUT
Some additional issues regarding expenses were resolved at a
conference with this Court on May 24, 2012 and will be reflected in
an agreed final order to be entered by this Court.
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PREJUDICE. The remainder of the rulings of this Court given at the
May 1, 2012 hearing will be confirmed by separate order of this
Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein and to Karen E. Kahle, guardian ad litem.
DATED:
May 24, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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