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Ludlow v. BNSF Railway Co.

United States District Court, D. Nebraska

May 22, 2014

KIRK J. LUDLOW, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

On November 14, 2013, the jury returned a verdict in favor of Defendant on Plaintiff's wrongful discharge claim but in favor of Plaintiff on his retaliation claim under the Nebraska Fair Employment Practice Act ("NFEPA"), Neb. Rev. Stat. §§ 48-1101 et seq. The jury awarded Plaintiff damages in the amount of $192, 850.00 for lost wages and benefits through the date of the verdict, plus $42, 519.00 for loss of future wages and benefits. These backpay and frontpay awards were substantially smaller than what Plaintiff had sought to recover. The jury also declined to award other damages which Plaintiff had claimed, including damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, humiliation, and the like. The total amount of damages awarded was $235, 369.00.

On December 13, 2013, Plaintiff filed a motion for an award of attorney's fees and costs under the NFEPA.[1] Plaintiff seeks to recover $346, 075.43 in fees, plus $24, 670.15 for out-of-pocket expenses, for a total award of $370, 682.58.

The fee request is based upon a total of 1, 388.80 hours of attorney time devoted to litigation activities:[2]

Attorney Hours Rate Kyle J. Long 929.30 $225 $209, 092.50 Robert G. Pahlke 340.50 $350 $119, 175.00 Joshua P. Wunderlich 80.46 $130 $10, 459.80 Robert O. Hippe 1.80 $250 $450.00 Jennifer Turco 1.60 $100 $160.00 Totals 1, 388.80 $339, 337.30

In addition, Plaintiff requests $6, 738.13 for attorney time related to preparation of the motion for attorney's fees and supporting brief (22.6 hours by Kyle J. Long and 12.59 hours by Joshua P. Wunderlich). In a supplemental motion, Plaintiff requests $11, 952.00 for attorney time spent in filing a response to Defendant's post-trial motion and in replying to Defendant's objections to the fee request.

A. Applicable Legal Standards

Under Nebraska law, "[a] party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees." Vlach v. Vlach, 835 N.W.2d 72, 78 (Neb. 2013). The NFEPA provides that "any successful complainant shall be entitled to appropriate relief, including temporary or permanent injunctive relief, general and special damages, reasonable attorney's fees, and costs." Neb. Rev. Stat. § 48-1119(4).

Unless a statute provides otherwise, an allowance for attorney's fees is for the benefit of the litigant and not counsel. See Barber v. Barber, 296 N.W.2d 463, 470 (Neb. 1980); County of Sarpy v. Gasper, 30 N.W.2d 67, 69 (Neb. 1947). Under section 48-1119(4), an award of attorney's fees belongs to the "complainant." The plain wording of this statute means that any fee award must be paid to Plaintiff rather than to his attorneys.[3]

"When an attorney fee is authorized, the amount of the fee is addressed to the trial court's discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion." Gonzalez v. Union Pacific R.R. Co., 803 N.W.2d 424, 449 (Neb. 2011). "To determine proper and reasonable fees, a court must consider several factors: the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services." Fisher v. PayFlex Systems USA, Inc., 829 N.W.2d 703, 714 (Neb. 2013).[4] "The court, in awarding a reasonable attorney fee, may [also] consider the actual agreement existing between a litigant and his attorney, including an obligation to pay a contingent fee. While the actual agreement is neither the sole factor nor a factor to be given any greater weight than any of the other factors, it may nevertheless be considered." Wear v. State, Dept. of Roads, 337 N.W.2d 708, 714 (Neb.1983) (citing Prucka v. Papio Nat. Resources Dist., 292 N.W.2d 293, 296 (Neb. 1980)); see also Lane v. State Farm Mut. Auto. Ins. Co., 308 N.W.2d 503, 514 (Neb. 1981). "There is no presumption of reasonableness placed on the amount offered by the party requesting fees." Young v. Midwest Family Mut. Ins. Co., 753 N.W.2d 778, 783 (Neb. 2008).

B. Defendant's Objections

Defendant objects to Plaintiff's motion and suggests that the award should be limited to $105, 476.22 in attorney's fees. Defendant disputes that out-of-pocket expenses are recoverable under the NFEPA; alternatively, Defendant argues for a $9, 004.02 reduction to the amount claimed. Defendant's objections fall into 11 general categories. They will be considered in the order presented by Defendant.

1. Duplicative Activities

Defendant first complains that "[t]he billing records from Plaintiff's counsel are replete with duplicative efforts where more than one attorney attended an office conference, a telephone conference, or engaged in duplicative efforts related to the same task." Defendant's brief (filing 169) at 8-9. Defendant notes, for example, that Mr. Pahlke and Mr. Long billed a total of 62.2 hours for telephone or in-person conferences with each other, not including conferences conducted during and after each day of trial. The time spent by Mr. Pahlke and Mr. Long conferring with each other prior to trial represents about 5% of their total time. Defendant would exclude Mr. Pahlke's time for these conferences and reduce the fee request by $18, 645.00.

Plaintiff has submitted affidavits from three highly respected trial attorneys, each of whom opines that it appears from the billing records that the attorneys involved in the litigation were properly managed so that the use of multiple attorneys did not result unnecessarily in the duplication of work, and that they worked together only when necessitated by the circumstances of the case. Declaration of Vince Powers (filing 157-4) ¶14; Affidavit of William Dittrick (filing 157-5) ¶14; Affidavit of David Domina (filing 157-6) ¶14. Defendant has not presented any countervailing evidence on this issue, nor has it shown that attorneys do not usually bill clients for intra-office conferences in cases such as this. Defendant's objection is denied.

Defendant next states that "Plaintiff's counsel regularly conferenced with, emailed, our otherwise directed the activities of other attorneys, paralegals or staff for a total of 11.59 hours, including the other person's billing for participation in the same conference or email exchange." Defendant's brief at 10. Defendant contends that the fee request should be reduced by $2, 632.70 because of this alleged duplication of effort.

Plaintiff points out that 5.96 of these 11.59 hours do not fit within the scope of Defendant's objection. The challenged time entries include a conference between Mr. Long, Mr. Pahlke and Mr. Hippe to review and discuss proposed jury instructions, a half-hour conference between Mr. Long and Defendant's counsel to discuss each party's objections to the other's proposed jury instructions and the preparation of a set of joint jury instructions, a time entry by Mr. Wunderlich for assisting Mr. Long in preparing the opening statement, and a time entry by Mr. Long which was written off by Plaintiff's counsel and not included in the fee request. Plaintiff also notes that Defendant has presented no evidence or authority to show that any of the time entries should not be compensable. Defendant's objection is denied.

Third, Defendant states that "a total of 11.1 hours were spent in meetings, conferences, and telephone conferences involving more than one attorney and the Plaintiff or another witness." Defendant's brief at 11. Defendant argues that Plaintiff should only be able to recover for one attorney's participation in all of these activities, and would reduce the fee request by 5.3 hours and $1, 855.00.

Defendant again fails to offer evidence or cite legal authority in support of its position. The proposed reduction in hours is also erroneous. While Defendant would strike 3.0 hours of Mr. Long's time which was spent preparing Plaintiff and his wife for their depositions because Mr. Pahlke was also present, the records show that Mr. Pahlke only attended this prep session for 0.7 hours. Another 0.4 hours of Mr. Long's time did not even involve a conference, but, rather, involved outlining issues for a motion in limine that was being assigned to Mr. Wunderlich. Defendant's objection is denied.

Finally with respect to this category, Defendant objects that "Plaintiff seeks recovery for all of the duplicative time for both Mr. Pahlke and Mr. Long to prepare for the depositions of Barry Wunker and William Renney, travel to those depositions, and attend those depositions. The total time billed for these activities consist of 125.9 total hours." Defendant's brief at 11. Defendant contends that Plaintiff should not be allowed to recover for 72.9 hours of Mr. Long's time at $16, 402.50.

Plaintiff contends the Wunker and Renney depositions necessitated the use of two attorneys because of their complexity, length, and importance. The court is satisfied with this explanation. Mr. Long spent much of his time preparing for the depositions by reviewing documents and outlining topics for questioning, and he then assisted Mr. Pahlke during the depositions by managing exhibits and revising the topical outlines. Mr. Long's preparation time was not duplicated by Mr. ...


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