United States District Court, D. Nebraska
KATHRYNN PALS, as personal representative of the Estate of Jamison B. Pals and personal representative of the Estate of Ezra A. Pals; and GORDON ENGEL, as personal representative of the Estate of Kathryne L. Pals, personal representative of the Estate of Violet J. Pals, and personal representative of the Estate of Calvin B. Pals; Plaintiffs,
TONY WEEKLYJR., BOHREN LOGISTICS, INC., INTERSTATE HIGHWAY CONSTRUCTION, INC., and D.P. SAWYER, INC., Defendants.
M. BAZIS, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion for Fees
and Expenses (Filing No. 151). For the reasons explained
below, Plaintiffs' motion will be granted, in part.
17, 2018, the Court ordered Defendant Interstate Highway
Construction, Inc. (“IHC”) to pay
“Plaintiffs' reasonable expenses incurred in
preparing” Plaintiffs' Motion to Compel and for
Sanctions. (Filing No. 148; Filing No. 80). The Court further
ordered that IHC bear the reasonable costs associated with a
Federal Rule of Civil Procedure 30(b)(6) deposition. The
Court directed Plaintiffs to file a motion seeking an award
of expenses and fees and to submit an itemization of expenses
to allow the Court to assess the proper amount to be paid by
IHC. Plaintiffs complied with the Court's order by filing
the instant motion seeking an award of $48, 929.54.
Court uses the lodestar method of multiplying the number of
hours billed by the reasonable hourly rate to determine the
fee amount. Fish v. St. Cloud State Univ., 295 F.3d
849, 851 (8th Cir. 2002). The Court may use its
own knowledge of prevailing market rates to determine a
reasonable hourly rate. Hanig v. Lee, 415
F.3d 822, 825 (8th Cir. 2005). “A reasonable hourly
rate is usually the ordinary rate for similar work in the
community where the case has been litigated.”
Fish, 295 F.3d 851.
Court has reviewed Plaintiffs' itemization of costs.
(Filing No. 153). The Court concludes that the hourly rate
for Plaintiffs' counsel and paralegal is not within the
reasonable and customary range for services performed given
the nature of the case, the local rates of pay, and the
experience of counsel. Plaintiffs seek an hourly rate of
$405.00 for their attorney, and $280.00 for their
paralegal. Plaintiffs did not submit an affidavit
regarding the ordinary and customary hourly rates for
attorneys and paralegals in this area. However, based on
the Court's knowledge of customary hourly rates in this
area, and other orders from this District, the Court cannot
find the hourly rates requested by Plaintiffs reasonable.
See Sepulveda-Rodriguez v. Metropolitan Life Insurance
Co., 8:16CV507, 2018 WL 1640595, at *7-8 (D. Neb. Apr.
5, 2018); Birge v. Brumbaugh & Quandahl, P.C.,
LLO, 2014 WL 688966 (D. Neb. Feb. 20, 2014); Diehm v.
City of Omaha, No. 8:04CV130, 2006 WL 753192, at *2 (D.
Neb. March 22, 2006); New Hope Fellowship, Inc. v. City
of Omaha, No. 8:04CV259, 2006 WL 1479030, at *3-4 (D.
Neb. May 17, 2006). Therefore, based on the Court's
knowledge of reasonable and customary rates in this area, the
hourly rate of Plaintiffs' attorney, Michael Stinson,
will be reduced to $300.00, and the hourly rate of
Plaintiffs' paralegal, Mary Jo Stark, will be reduced to
addition, the Court finds that the itemization submitted by
Plaintiffs includes time for work performed that is outside
the scope of the Court's order awarding sanctions. The
Court ordered on May 17, 2018 that Plaintiffs were entitled
to fees incurred “in preparing”
Plaintiffs' Motion to Compel and for Sanctions. As
counsel is aware, this Court requires that parties contact
the Court prior to filing a motion to compel. (Filing No.
61.) Plaintiffs contacted the Court regarding the discovery
dispute and were granted leave by the Court to file a motion
to compel on December 18, 2017. Therefore, Plaintiffs are not
entitled to expenses incurred prior to that date. The Court
finds that the total amount of expenses incurred in preparing
the Motion to Compel and for Sanctions in the timeframe set
out above totals $10, 275.00.
request submitted as it pertains to an award of fees for the
Federal Rule of Civil Procedure 30(b)(6) is also overly
broad. The parties scheduled a Rule 30(b)(6) deposition, but
the deposition was continued due to IHC's production of
additional documents. The intent of the Court in its May 17,
2018 order was to sanction IHC for the postponement of that
deposition due to the untimely document production. Thus,
based on the Court's May 17 ruling, Plaintiffs will be
awarded Rule 30(b)(6) deposition costs incurred following the
filing of the Motion to Compel and for Sanctions. The
itemization of fees submitted by Plaintiffs reflects that
this amount is $7, 550.04.
on the calculations set forth above, Plaintiffs are entitled
to an award totaling $17, 825.04.
IT IS ORDERED:
Plaintiffs' Motion for Fees and Expenses (Filing No. 151)
is granted, in part.
Defendant IHC shall pay Plaintiffs $17, 825.04. Such payment
shall be made upon the conclusion of this litigation.