United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Plaintiff's Motion for
Attorney Fees and non-taxable costs. Filing 19. The
Court's Memorandum and Order of November 13, 2018 (filing
17) previously found that the plaintiff was entitled to
judgment due to the defendants' default. Judgment was
entered in the amount of $3, 000.00 for statutory damages,
and the Clerk was directed to award taxable costs. Filing 18.
The plaintiff filed its bill of costs on November 27 seeking
an award of $400 for the filing fee and $55.00 regarding fees
for service of process. Filing 20. The Clerk taxed costs
against the defendants in the amount of $400, excluding the
requested $55.00 service fee as not in accordance with the
Court's Bill of Costs Handbook. Filing 23. The plaintiff
did not move, pursuant to the Bill of Costs Handbook, for the
Court to review the Clerk's taxation.
STANDARD OF REVIEW
a reasonable attorney fee award starts with the lodestar
calculation which "provides an objective basis on which
to make an initial estimate of the value of the lawyer's
services." Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). The lodestar is calculated by multiplying the
number of hours reasonably expended by reasonable hourly
rates. Id.; Dindinger v. Allsteel, Inc.,
853 F.3d 414, 429 (8th Cir. 2017). A reasonable hourly rate
is usually the rate for similar work in the community where
the case has been litigated. Emery v. Hunt, 272 F.3d
1042, 1048 (8th Cir. 2001). "[T]he most critical factor
is the degree of success obtained." Hensley,
461 U.S. at 436.
Court entered a default judgment regarding the
plaintiff's claim that the defendants violated 47 U.S.C.
§ 605(a). Pursuant to § 605(3)(3)(B)(iii), the
plaintiff is entitled to "recovery of full costs,
including awarding reasonable attorney's fees." The
plaintiff submitted an affidavit and supporting materials
seeking to recover its attorney's fee (2.3 hours @
$500/hour = $1, 500), as well as costs for the attorney's
administrative assistant (9.07 hours @ $100/hour = $907) and
research attorney (5.0 hours @ $300/hour = $1, 500): total
requested for attorney's fees, $3, 557.00.
complaint, the plaintiff sought statutory damages of $20, 000
and $150, 000 for enhanced damages as allowed by statute. The
Court found an award of statutory damages in the amount of
$3, 000 to be just. Thus, the plaintiff's attorney
achieved a limited degree of success in an action where he
his supporting affidavit, the plaintiff's attorney
justifies his hourly rate as "comparable to the rates
for specialized litigation law firms." Filing 19-2.
That, however, is not the standard for determining an hourly
rate in this Circuit. For instance, in an exceedingly complex
Omaha civil rights case, a nationally known, highly qualified
civil rights litigator and law professor's hourly rate
was reduced to $400 to be "reflective of the rates in
Omaha, Nebraska." Livers v. Kofoed,
8:08-cv-107, 2014 WL 1309616, at *6 (D. Neb. Mar. 31, 2014).
plaintiff has not supported his attorney's fee request
with an affidavit from a local attorney averring that a $500
hourly billing rate would be reasonable for an attorney with
commensurate education, experience and skill, in Omaha,
Nebraska. Instead, attached to counsel's supporting
affidavit is a copy of the "Laffey Matrix
2003-2014." Filing 19-2 at 24. This matrix is used by
the United States Attorney for the District of Columbia in
determining rates for plaintiffs in fee-shifting civil cases.
Livers, 2014 WL 1309616, at *2. "The rates
reflective in the Laffey Matrix may be appropriate for larger
cities, but they are not reflective of rates in Omaha,
Nebraska." Livers, 2014 WL 1309616, at *6;
see also, J&J Sports Prods., Inc. v.
Argueta, 5:15-cv-5200, 2017 WL 628299, at *2 (W.D. Ark.
Feb. 15, 2017) ("other courts in the Eighth Circuit have
criticized the Laffey Matrix, and this Court will not utilize
matter before the Court is not complex and given the many
reported federal district court decisions involving this
plaintiff, it appears that the plaintiff's attorney is
litigating the same kind of case over and over with different
defendants-many of which simply default such as the defendant
herein. This particular kind of legal practice has been
fairly characterized as "cumulative" and
"boilerplate in nature." J&J Sports Prods,
Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469,
475 (2009). It may very well be that there are other aspects
of counsel's specialized practice that require superior
skill and expertise, but the instant case is not in that
category. The matter before the Court is more akin to a
credit card collection suit or a residential landlord tenant
dispute-highly repetitive and form-driven, requiring minimal
Court finds it necessary to adjust the requested billing
rates to reflect a reasonable fee for this locale and given
the relative success of the plaintiff's litigation. Based
on the Court's experience with the rates charged by local
attorneys, the Court finds that, at the high end, a
reasonable rate for the work of the plaintiff's attorney
is $350.00, $225.00 for the research attorney, and $85.00 for
the administrative assistant. Although five hours for a
research attorney in this kind of litigation seems a bit
much, the Court finds the time requested to be reasonable.
Accordingly, the plaintiff should recover attorney's fee
in the amount of $2, 700.95. (Senior Attorney: 2.3 hours @
$350/hour = $805.00; Research Attorney: 5.0 hours @ $225/hour
= $1, 125.00; Administrative Assistant: 9.07 hours @ $85.00 =
plaintiff's request for non-taxable costs includes
courier charges and charges for three Certification of Good
Standing documents. However, there is no explanation why the
courier charges were incurred, and the dates of the charges
do not correlate to dates in the attorney's billing
records. Neither is there an explanation for the Certificates
of Good Standing. The plaintiff requested its filing fee as a
non-taxable cost, but the Clerk has already taxed the
plaintiff's filing fee against the defendants. Filing 23.
Accordingly, these costs will not be allowed.
plaintiff requests taxing the cost of its investigator to the
defendants. Courts are split whether the directive in §
605(e)(3)(B)(iii) that the aggrieved party is entitled to
recover its full costs includes recovery of the cost of an
investigator. Compare Argueta, 2017 WL 628299, at
*3, withKingvision Pay-Per-View LTD. v.
Autar, 426 F.Supp.2d 59, 67 (E.D.N.Y. 2006). However,
courts agree that a request for investigative fees should be