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Petrone v. Werner Enterprises, Inc.

United States District Court, D. Nebraska

February 9, 2018

PHILIP PETRONE, et al., Plaintiffs,
v.
WERNER ENTERPRISES, INC., AND DRIVERS MANAGEMENT, LLC; Defendants. PHILIP PETRONE, et al.; Plaintiffs,
v.
WERNER ENTERPRISES, INC., AND DRIVERS MANAGEMENT, LLC, Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This 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 denied.[1]

         BACKGROUND

         The 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:

         Defendants 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 43270.

         Plaintiffs 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).

         Plaintiffs 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.

         MOTION FOR PARTIAL JUDGMENT AS A MATTER OF LAW

         I. Standard of Review

         Federal 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).

         “In 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)).

         II. Discussion

         Plaintiffs' 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 pre-verdict motion.”).

         Plaintiffs 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).

         Although 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.

         MOTION FOR NEW TRIAL/ALTER OR AMEND JUDGMENT

         I. Standards of Review A. Motion For New Trial Under Rule 59(a)

         “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 omitted).

         B. Motion to Alter or Amend Under rule 59(e)

         “Rule 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)).

         II. Discussion

         Plaintiffs' principal argument is that the Court erred in its previous rulings on Plaintiffs' sleeper berth claims.[2] 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 prejudiced Plaintiffs.

         Regardless of whether Plaintiffs have waived their arguments, [3] 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 error.

         MOTION FOR ATTORNEY'S FEES AND COSTS

         Plaintiffs seek $2, 192, 500.00 in attorney's fees and $199, 512.31[4] in 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.

         I. Attorney's Fees

         The 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), [5] 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.

         In this 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.

         Although 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).

         The 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.

         A. Reasonableness of Rates

         Plaintiffs 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).[6] “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).

         Plaintiffs 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.

         1. Exceptions to the ...


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