United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on Plaintiffs' Motion for
Partial Judgment as a Matter of Law, Motion for New Trial,
and Motion to Amend the Judgment, ECF No. 551 in No.
8:11CV401; ECF No. 451 in No. 8:12CV307. Also before the
Court is Plaintiffs' Motion for Attorney's Fees and
Costs under 29 U.S.C. § 216(b) and Motion for Service
Payments for Named Plaintiffs, ECF No. 554 in No. 8:11CV401;
ECF No. 454 in No. 8:12CV307. For the reasons stated below,
the Motion for Attorney's Fees and Costs will be granted,
consistent with this Memorandum and Order. The Motion for
Partial Judgment as a Matter of Law, Motion for New Trial,
and Motion to Amend the Judgment will be
Court's previous orders contain a detailed recitation of
the procedural and historical background of this case. By way
of summary, the Court states the following:
Werner Enterprises, Inc., and Drivers Management, LLC,
(collectively “Werner”) operate an eight-week
Student Driver Program as part of the training for new truck
drivers. Plaintiffs filed this class action lawsuit seeking
compensation for unpaid wages allegedly earned during
off-duty time spent on short rest breaks and in their
trucks' sleeper berths. In May 2017, the Court held a
jury trial on the issue of damages for Plaintiffs' short
rest break claims and liability on Plaintiffs' sleeper
berth claims. Following the three-day trial, the jury awarded
$779, 127.00 in damages on Plaintiffs' short rest break
claims, an amount equal to those calculated by
Plaintiffs' expert. See Jury Verdict, ECF No.
516, Page ID 43269. The jury found that Plaintiffs failed to
demonstrate that Werner required or allowed Plaintiffs to
work during time logged in the sleeper berth in excess of
eight hours each 24-hour period. Id. at Page ID
move to alter or amend the Judgment, ECF No. 545, arguing
that the jury's verdict and eventual judgment was based
on an erroneous legal standard. Specifically, Plaintiffs
request an Order granting Plaintiffs' partial judgment as
a matter of law under Fed.R.Civ.P. 50 as to the
compensability of sleeper berth time and 59(a), and/or in the
alternative, a partial new trial on Plaintiffs' sleeper
berth claims pursuant to Fed.R.Civ.P. 59(a), and an amendment
to the judgment pursuant to Fed.R.Civ.P. 59(e).
also seek $2, 192, 500.00 in attorney's fees; $201,
465.75 in nontaxable costs; and an award for Named
Plaintiffs' service in the amount of $10, 000 each,
totaling $40, 000, to be paid from unclaimed funds of the
verdict, or, if the amount of unclaimed funds cannot cover
the service payments, to be paid from Plaintiffs'
counsel's fee award.
FOR PARTIAL JUDGMENT AS A MATTER OF LAW
Standard of Review
Rule of Civil Procedure 50(a) states that “[a] motion
for judgment as a matter of law may be made at any time
before the case is submitted to the jury. The motion must
specify the judgment sought and the law and facts that
entitle the movant to the judgment.” If a court does
not grant a motion for judgment as a matter of law made at
trial under Rule 50(a), it may consider a renewed motion
after the entry of a final judgment under Rule 50(b).
“A court reviewing a Rule 50(b) motion is limited to
consideration of only those grounds advanced in the original,
Rule 50(a) motion.” Nassar v. Jackson, 779
F.3d 547, 551 (8th Cir. 2015) (citing Graham Constr.
Servs. v. Hammer & Steel Inc., 755 F.3d 611, 617-18
(8th Cir. 2014)). Judgment as a matter of law is appropriate
“[i]f a party has been fully heard on an issue during a
jury trial and the court finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find for
the party on that issue.” Fed.R.Civ.P. 50(a)(1).
both Rule 56 motions for summary judgment and Rule 50 motions
for judgment as a matter of law, the inquiry is the same:
‘[W]hether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.'” Linden v. CNH America, LLC, 673
F.3d 829, 834 (8th Cir. 2012) (alteration in original)
(quoting Kinserlow v. CMI Corp., 217 F.3d 1021, 1025
(8th Cir. 2000)). “To sustain an entry of judgment as a
matter of law, ‘[t]he evidence must point unswervingly
to only one reasonable conclusion. This demanding standard
reflects our concern that, if misused, judgment as a matter
of law can invade the jury's rightful
province.'” Penford Corp. v. Natl Union Fire
Ins. Co. of Pittsburgh, PA, 662 F.3d 497, 503 (8th Cir.
2011) (quoting Phillips v. Collings, 256 F.3d 843,
847 (8th Cir. 2001)).
Motion for Judgment as a Matter of Law must be denied because
it was not raised before the case was submitted to the jury.
As stated above, “[a] court reviewing a Rule 50(b)
motion is limited to consideration of only those grounds
advanced in the original, Rule 50(a) motion.”
Nassar, 779 F.3d at 551; The Eighth Circuit has
repeatedly concluded that post-trial motions under Rule 50(b)
may not be considered unless a litigant made a pre-verdict
motion under Rule 50(a). See Graham Constr. Servs. v.
Hammer & Steel Inc., 755 F.3d 611, 618 (8th Cir.
2014) (“Graham did not move for [judgment as a matter
of law] as to H&S's claim for breach of contract
until after the verdict through a Rule 50(b) motion.
Graham's failure to raise this challenge in a Rule 50(a)
motion waived the opportunity to raise it after
trial.”); Canny v. Dr. Pepper/Seven-Up Bottling
Grp., Inc., 439 F.3d 894, 901 (8th Cir. 2006) (“A
post-trial motion for judgment can be granted only on grounds
advanced in the pre-verdict motion.”); Walsh v.
National Computer Systems, Inc., 332 F.3d 1150, 1158
(8th Cir. 2003) (stating that “a post-trial motion for
judgment may not advance grounds that were not raised in the
request that the Court conclude, as a matter of law, that all
sleeper berth time beyond 8 hours per day logged by the
drivers in the class constitutes hours worked for purposes of
their FLSA claims. However, because Plaintiffs did not make a
Rule 50(a) motion at trial regarding their sleeper berth
claims, they may not now make a motion under Rule 50(b).
After Plaintiffs rested, the Court specifically asked the
parties whether they would like to make any motions. Trial
Transcript Vol. III at 587, ECF No. 548, Page ID 55952.
Plaintiffs did not make any motions at that time. After both
parties rested, the Court once again invited the parties to
make motions before the case was submitted to the jury.
Id. at 603, Page ID 55969. At that point, Plaintiffs
moved for judgment as a matter of law as to the damages owed
on the short rest break claim, which the Court denied.
Id. at 603-04, Page ID 55968-69. Plaintiffs did not
make any motions regarding their sleeper berth claims.
Because Plaintiffs did not make a pre-verdict motion under
Rule 50(a) regarding their sleeper berth claims, the Court
cannot consider their renewed motion under Rule 50(b).
Plaintiffs did not make a motion under Rule 50(a) for their
sleeper berth claims, they argue that the Court should
nevertheless consider their motion under Rule 50(b) because
it concerns only legal matters. Plaintiffs cite no direct
authority for the position that purely legal arguments under
Rule 50(b) may be considered even absent a pre-verdict
motion, and Plaintiffs' policy arguments do not overcome
the express language of Rule 50 and Eighth Circuit case law.
Accordingly, Plaintiffs' Rule 50(b) motion is not
preserved by the fact that it is a purely legal question.
FOR NEW TRIAL/ALTER OR AMEND JUDGMENT
Standards of Review A. Motion For New
Trial Under Rule 59(a)
new trial may be granted on all or some issues ‘after a
jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal
court.'” Stults v. Am. Pop Corn Co., 815
F.3d 409, 414 (8th Cir. 2016) (quoting Fed.R.Civ.P.
59(a)(1)(A)). A new trial may be granted when the first trial
resulted in a miscarriage of justice, the verdict was against
the weight of the evidence, the damages award was excessive,
or there were legal errors at trial. Gray v.
Bucknell, 86 F.3d 1472, 1480 (8th Cir.1996); see
also Fed. R. Civ. P. 59(a). “With respect to legal
errors, a ‘miscarriage of justice' does not result
whenever there are inaccuracies or errors at trial; instead,
the party seeking a new trial must demonstrate that there was
prejudicial error. Trickey v. Kaman Indus. Techs.
Corp., 705 F.3d 788, 807 (8th Cir. 2013) (citation
omitted). “The standard for granting a motion for new
trial is higher [than the standard for granting a motion for
judgment as a matter of law.]” Michigan Millers
Mut. Ins. Co. v. Asoyia, Inc., 793 F.3d 872, 878 (8th
Cir. 2015) (quoting Howard v. Mo. Bone & Joint Ctr,
Inc., 615 F.3d 991, 995 (8th Cir. 2010)). “The key
question is whether a new trial should have been granted to
avoid a miscarriage of justice.” Id. (citation
Motion to Alter or Amend Under rule 59(e)
59(e) motions serve the limited function of correcting
‘manifest errors of law or fact or to present newly
discovered evidence.'” United States v. Metro.
St. Louis Sewer Dist, 440 F.3d 930, 933 (8th
Cir. 2006) (quoting Innovative Home Health Care v. P.
T.-O. T. Assoc. of the Black Hills, 141 F.3d 1284, 1286
(8th Cir. 1998)). “Such motions cannot be used to
introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to
entry of judgment.” Id. (internal quotation
marks omitted) (quoting Innovative Home Health Care v. P.
T.-O. T. Assoc. of the Black Hills, 141 F.3d 1284, 1286
(8th Cir. 1998)).
principal argument is that the Court erred in its previous
rulings on Plaintiffs' sleeper berth
Plaintiffs even characterize their requested relief as
“essentially, the reinstatement of Judge Strom's
order [the SJ Order] finding excess sleeper berth time
compensable as a matter of law.” Pl. Reply at 4, ECF
No. 563, Page ID 56660. Each of Plaintiffs' grounds to
partially alter or amend the judgment and/or to grant a new
trial is based on their argument that the Court's ruling
with respect to the sleeper berth claims was legally
incorrect. As a consequence, Plaintiffs argue, the
Court's rulings in pretrial motions and jury instructions
of whether Plaintiffs have waived their arguments,
 there has
been no miscarriage of justice that justifies amending the
judgment and/or granting a new trial. Plaintiffs made
similar, if not identical, arguments with respect to their
sleeper berth claims in their opposition to Werner's
Motion to Revise and Werner's Motion to Clarify. The
Court considered Plaintiffs' arguments and stated its
ruling and reasoning in several pretrial orders. See,
e.g., Revised Order at 14-17, ECF No. 405, Page ID
42147-50; Clarification Order at 5-6, ECF No. 466, Page ID
42722-23. Plaintiffs present no argument that the Court has
not already considered and analyzed. Thus, Plaintiffs
essentially ask the Court to reconsider its ruling once
again. The Court has reviewed the record-including
Plaintiffs' arguments in this Motion and in previous
motions-and concludes that its previous rulings on
Plaintiffs' sleeper berth claims were not manifestly
erroneous. Accordingly, the Court's rulings related to
Plaintiffs' sleeper berth claims, including its rulings
on the jury instructions, did not result in prejudicial
FOR ATTORNEY'S FEES AND COSTS
seek $2, 192, 500.00 in attorney's fees and $199,
nontaxable costs. Plaintiffs also ask the Court to award
Named Plaintiffs service payments of $10, 000 each, totaling
$40, 000, to be paid from unclaimed funds of the verdict, or,
if the amount of unclaimed funds cannot cover the service
payments, to be paid from Plaintiffs' counsel's fee
award. Werner did not oppose Plaintiffs' request for
service payments, and they will be awarded as requested. The
Court will award Plaintiffs' attorney's fees and
nontaxable costs; however, for the reasons stated below,
Plaintiffs' requested award will be adjusted to reflect a
reasonable award under the circumstances of this case.
FLSA only authorizes an award of fees to a plaintiff who has
prevailed in the litigation. See 29 U.S.C. §
216(b). Whether a litigant is a “prevailing
party” is a legal question. Warner v. Indep. Sch.
Dist. No. 625, 134 F.3d 1333, 1336 (8th Cir. 1998);
Jenkins v. State of Missouri, 127 F.3d 709, 714 (8th
Cir. 1997) (en banc). In Farrar v. Hobby, 506 U.S.
103, 111-12 (1992),  the Supreme Court held that “a
plaintiff ‘prevails' when actual relief on the
merits of his claim materially alters the legal relationship
between the parties by modifying the defendant's behavior
in a way that directly benefits the plaintiff.” The
relief may take the form of an enforceable judgment, a
consent decree, or a settlement. Id. at 111. The
term “prevailing party” is generously defined,
and whether a party prevailed does not turn on the magnitude
of the plaintiff's success. Id. at 114.
case, it is undisputed that Plaintiffs prevailed on their
short rest break claims. On August 3, 2015, the Court granted
Plaintiffs' motions for summary judgment on their short
rest break claims. ECF No. 347. At trial, Plaintiffs obtained
a verdict for the full amount claimed as damages for their
short rest break claims. Together with the post-trial
liquidated damages award, Plaintiffs are entitled to an
amount slightly over $829, 000.00. Accordingly, Plaintiffs
were prevailing parties under the FLSA, and are entitled to
an award of their reasonable attorney's fees.
Plaintiffs are prevailing parties, the Court must determine
what is a reasonable award. “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.” Miller v.
Dugan, 764 F.3d 826, 830-31 (8th Cir. 2014) (internal
citations omitted) (quoting Hensley v. Eckerhart,
461 U.S. 424, 433 & 437 (1983)); see also Fish v. St.
Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002)
(“The starting point in determining attorney fees is
the lodestar, which is calculated by multiplying the number
of hours reasonably expended by the reasonable hourly
rates.”). “[T]he fee applicant bears the burden
of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”
Miller, 764 F.3d at 831 (quoting Hensley,
461 U.S. at 437).
Court has reviewed the record and concludes that Plaintiffs
are entitled to an award of attorney's fees. However, the
fee award must be adjusted to reflect reasonable Omaha rates
and reasonable expenditures of time under the circumstances
of this case. Plaintiffs are also entitled to a significant
award of nontaxable costs, but that amount must also be
adjusted to reflect reasonable expenses.
Reasonableness of Rates
have not demonstrated that Philadelphia rates should apply,
and the requested rates must be adjusted to the Omaha market.
“[T]he lodestar looks to ‘the prevailing market
rates in the relevant community.'” Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (quoting
Blum v. Stenson, 465 U.S. 886, 895 (1984). To
determine what would qualify as a reasonable rate in the
prevailing Omaha market, the court reviewed and analyzed
reported decisions from this court over the past several
years involving attorney fee awards. Bernbeck v.
Gale, No. 8:13CV228, 2015 U.S. Dist. LEXIS 45837, at *6
(D. Neb. Apr. 8, 2015), vacated on other grounds by
829 F.3d 643, 644 (8th Cir. 2016). “When determining reasonable
hourly rates, district courts may rely on their own
experience and knowledge of prevailing market rates.”
Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
argue that Philadelphia rates are appropriate because this
case was a complex, national FLSA class action and Omaha
counsel with appropriate expertise could not be located. In
the alternative, Plaintiffs argue that if Omaha rates must
apply, the Court should adopt the rates set forth in the
Affidavit of Omaha attorney Christopher Welsh. See
ECF No. 556-2. For the reasons stated below, out-of-state
rates are not appropriate in this case and the Court will
adopt reasonable Omaha rates.
Exceptions to the ...