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Marshall v. Anderson Excavating and Wrecking Co.

United States District Court, D. Nebraska

March 20, 2017

ROD MARSHALL, et al., Plaintiffs,
v.
ANDERSON EXCAVATING AND WRECKING CO., a.k.a. ANDERSON EXCAVATING CO., Defendant.

          ORDER

          John M. Gerrard United States District Judge

         This matter is before the Court on the plaintiffs' Motion and Application for Award of Attorneys' Fees, Interest, Liquidated Damages, and Auditing Costs (filing 79). The Court will award prejudgment interest in the amount of $8, 717.96, liquidated damages in the amount of $8, 717.96, attorney's fees in the amount of $38, 331, and nontaxable costs in the amount of $516.50.

         Prejudgment Interest

         The Court begins with the prejudgment interest. The defendant does not contest the plaintiffs' calculation of the amount; rather, the defendant objects to awarding prejudgment interest at all, and argues that the interest rate used was incorrect. Filing 86 at 16-17. The defendant's arguments are the same as those raised in its motion for new trial (filing 81), and are discussed and rejected in the Court's separate ruling on that motion (filing 88).

         Liquidated Damages

         The defendant's objection to the plaintiffs' liquidated damages request is that it is inconsistent with the Court's Findings of Fact and Conclusions of Law (filing 77), which according to the defendant found that "the total liquidated damages could not exceed $2, 391.39 (20% of $11, 956.96)." Filing 86 at 17. But that is not what the Court held: the Court held that 29 U.S.C. § 1132 requires an award of "'an amount equal to the greater of' either 'interest on the unpaid contributions' or 'liquidated damages provided for under the plan in an amount not in excess of 20 percent' of the total delinquent contributions." Filing 77 at 21. So, the Court explained,

The Delinquent Policy and Procedure document introduced at trial provides for liquidated damages in the amount of $0.02 per hour of work per month that the contribution on that month was delinquent. Accordingly, the Court will order the defendant to pay the greater of (1) the amount of the interest on the unpaid contributions, to be calculated in accordance with the Delinquent Policy and Procedure document, or (2) the amount of liquidated damages, to be calculated in accordance with the Delinquent Policy and Procedure document, and not to exceed $2, 391.39 (20% of $11, 956.96).

Filing 77 at 21. Because the interest on the unpaid contributions proved to be the greater amount, a liquidated damages award of $8, 717.96 is warranted.

         Attorney's Fees

         The defendant takes issue with the plaintiffs' fee request on several grounds. Most generally, the defendant complains that the fee request is

exorbitant given the amount actually recovered. A majority of the fees are unnecessary and the result of the Plaintiffs' failure to exercise remedies available to it and to properly plead its case prior to the close of discovery. Plaintiff did not succeed in the vast majority of its claims against the Defendant and for those claims it did succeed upon (thus far), the Plaintiff[s] did not even plead a proper theory of relief.

Filing 86 at 2. The Court finds some of the defendant's arguments persuasive, but others less so.

         First, 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. After determining this amount, a district court may consider other factors, including the results obtained, to adjust the fee upward or downward. Smith v. AS Am., Inc., 829 F.3d 616, 623 (8th Cir. 2016). But the Court is confused from the start by the documentation submitted by plaintiffs' counsel.

         The Court has been presented with what are effectively two sets of bills for the same services. Seefiling 79-1 at 17-121. That makes a certain degree of sense: the billing suggests that the Health and Welfare Plan and Pension Plan were billed separately. But the plaintiffs' evidence indicates that counsel's hourly rate of $155 was fair and reasonable. See, filing 79-3;filing 87-1. There are two problems with that. The first is basic mathematics: the bills reflect charges at an hourly rate of $150. The second is that billing for the same services twice at $150 an hour means that ...


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