It is hereby ordered that the judgment so appealed from is unanimously modified on the law by reducing the conviction of grand larceny in the fourth degree (Penal Law § 155.30) to petit larceny (§ 155.25) and vacating the sentence imposed on count two of the indictment and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for sentencing on the conviction of petit larceny.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25) and grand larceny in the fourth degree (§ 155.30 [1]), defendant contends the evidence is legally insufficient to support the conviction of grand larceny in the fourth degree because the People failed to establish that the value of the stolen property exceeded $1,000. We agree. At trial, the People presented evidence that the value of a camcorder stolen in the burglary was $600. The only remaining evidence presented with respect to the value of the other property stolen was that a used video game console had been purchased for $100 by the homeowner's son a few months before the burglary, and a new video game had been purchased for approximately $250 five to six months before the burglary, but it had several broken parts at the time of the burglary. Even assuming, arguendo, that such evidence was sufficient to establish that those prices accurately reflected the value of the property at the time of the burglary ( cf. People v Alexander, 41 AD3d 1200, 1201, lv denied 9 NY3d 920), we conclude that the total value of the stolen property would be $950. Inasmuch as there was no evidence presented concerning the value of any other item taken, any value attributed to the remaining property would be based on mere speculation ( cf. People v Pepson, 61 AD3d 1399, 1400, lv denied 12 NY3d 919). Consequently, we cannot on this record conclude "that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold" of $1,000 ( People v Sheehy, 274 AD2d 844, 845, lv denied 95 NY2d 938). We therefore modify the judgment by reducing the conviction of grand larceny in the fourth degree to petit larceny (Penal Law § 155.25) and vacating the sentence imposed on count two of the indictment ( see CPL 470.15 [a]), and we remit the matter to County Court for sentencing on the conviction of petit larceny ( see CPL 470.20).
We reject the further contention of defendant that the verdict, as modified, is against the weight of the evidence. Viewing the evidence in light of the elements of the crime of burglary in the second degree as charged to the jury, as well as the elements of petit larceny ( see People v Danielson, 9 NY3d 342, 349), we conclude that an acquittal would not have been unreasonable based on the questionable credibility of the accomplices who testified at trial ( see generally People v Bleakley, 69 NY2d 490, 495; People v Alexis, 65 AD3d 1160; People v Griffin, 63 AD3d 635, 638, lv denied 13 NY3d 835). Nevertheless, "giving `appropriate deference to the jury's superior opportunity to assess the witnesses' credibility `"( People v Marshall, 65 AD3d 710, 712, lv denied 13 NY3d 940), we conclude that the jury was entitled to credit their testimony concerning the events rather than defendant's version.
We reject defendant's further contention that the testimony of the accomplices was not sufficiently corroborated. We note at the outset that, as the court properly concluded, the issue whether defendant's former girlfriend was an accomplice was for the jury to determine ( see People v Basch, 36 NY2d 154, 157; People v McPherson, 70 AD3d 1353, 1354, lv denied 14 NY3d 890; People v Adams, 307 AD2d 475, lv denied 1 NY3d 566). Even assuming, arguendo, that the jury determined that the former girlfriend was an accomplice, we reject the further contention of defendant that her testimony, and that of the other two accomplices, was not sufficiently corroborated. "`The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth `"( People v Reome, 15 NY3d 188, 191-192, quoting People v Dixon, 231 NY 111, 116 [1921]). Here, the testimony of the accomplices was sufficiently corroborated by other evidence, including the testimony of a police officer establishing that defendant was in a vehicle with the accomplices and the stolen property a short time after the burglary, evidence establishing that defendant attempted to persuade his former girlfriend to change her testimony so that she would not implicate him in the burglary, and the testimony of defendant, in which he admitted that he accompanied the accomplices to the scene of the burglary ( see People v Potter, 270 AD2d 892, lv denied 95 NY2d 838; People v Cousins, 221 AD2d 923, 924-925, lv denied 87 NY2d 1018, 88 NY2d 965 [1996]).
Defendant failed to preserve for our review his contention that the court penalized him for exercising his right to a trial by imposing a longer term of incarceration than that proposed during plea negotiations ( see People v Dorn, 71 AD3d 1523; People v Griffin, 48 AD3d 1233, 1236-1237, lv denied 10 NY3d 840). In any event, that contention is without merit. "`[T]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial `"( People v Chappelle, 14 AD3d 728, 729, lv denied 5 NY3d 786), and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial ( see generally People v Pena, 50 NY2d 400, 411-412, rearg denied 51 NY2d 770, cert denied 449 US 1087). Finally, the sentence is not unduly harsh or severe.
f certain entries) by a billing amount of more than $265,000. Thomas Buchanan reviewed the actual time reported in this case and materially reduced such time in order to avoid any dispute over the reasonableness of the fees. The Court has previously observed that the majority of discounted time entries appear to have been made in the exercise of billing judgment.
Additionally, Thomas Buchanan attests in his declaration that MRSB eliminated approximately six time entries that it determined were duplications. The Court finds that plaintiff's counsel exercised billing judgment, as evidenced by the significant voluntary reductions made prior to submitting its fee request.
"The prevailing party must make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998).
Duty to Keep Meticulous, Contemporaneous Time Records
Defendants argue that plaintiff's counsel failed to keep meticulous time records, citing their use of block billing, and vague descriptions for time entries. "`Block billing' is the practice of lumping multiple tasks into a single entry of time such that the billing entry does not delineate how hours were allotted to specific tasks." There is no rule in the Tenth Circuit that "mandat[es] reduction or denial of a fee request if the prevailing party submits attorney-records which reflect block-billing." But the Court may discount the requested hours if it finds that the records submitted do not allow the Court to determine how the hours were allotted to specific tasks and the reasonableness of that time.
Wilhelm v. TLC Lawn Care, Inc., No. 07-2465-KHV, 2009 WL 57133, at *3 (D. Kan. Jan. 8, 2009).
Cadena v. Pacesetter Corp., 224 F.3d 1203, 1215 (10th Cir. 2000).
Id.
The Court notes at the outset that it presided over this matter through a long and contentious summary judgment process and four-week trial. Summary judgment entailed over 400 pages of briefing; defendants' motion alone presented 385 statements of uncontroverted fact and plaintiff's response to this motion presented 392 additional statements of fact. The Court was required to consider all of these statements of fact and the volumes of evidence submitted in support thereof in rendering its decision. The case proceeded to a lengthy trial that involved complicated technical documents and expert testimony. The intensely litigated nature of this matter is documented in the 900 docket entries made in this case to date. This Court is intimately familiar with the facts of this case, the rampant discovery disputes, intense motions practice, trial, and post-trial motions. Upon review of plaintiff's time records, the Court finds that it is easily able to determine that the hours billed as described by plaintiff are reasonable.
In their supplemental response brief, defendants point to three block billed time entries that they complain do not specifically show how plaintiff's counsel allotted time to various tasks and, therefore, do not allow the Court to determine whether the time spent was reasonable. Plaintiff replied, defending the reasonableness of each of these three time entries. Plaintiff further argues that it segregated out the trade secret claims by reducing the time sought by at least one-third each. The Court has reviewed these entries and agrees with plaintiff that, in this case, block billing does not prevent the Court from determining the reasonableness of their time. First, it is apparent by comparing the initial fee submission with the segregated fee submission that plaintiff's counsel further reduced their hours by a significant percentage, in order to reflect the Court's finding that the time spent on non-trade secret claims is not compensable. The Court is easily able to review the time entries identified by defendants and find that these hours are reasonable. For instance, in defendants' example of the revised January 18, 2007 time entry by Jason Buchanan, he spent 5.90 hours as follows:
PREPARE FOR AND ATTEND DEPOSITIONS OF MIKE CASEY, DARIN GENEREUX AND HAROLD KRAUS. MEET ARLIE STONESTREET TO GO OVER ARLIE'S REVIEW OF DOCUMENTS, AND DEPOSITION PREPARATION. RECEIPT AND REVIEW OF EMAILS FROM ARUE REGARDING REVIEW OF DEFENDANTS EXPERT REPORT AND COMPARISON OF ICE'S SOFTWARE AND ARTUS SOFTWARE.
The Court is able to conclude that 5.90 hours is a reasonable amount of time spent on these time-consuming tasks. Counsel prepared for and attended three depositions and then met with Arlie Stonestreet, who served both as plaintiff's expert on the trade secret issues and as one of the principal fact witnesses. Additionally, counsel reviewed Stonestreet's review of defendants' expert report and comparison of ICE's software and Artus' software — a central issue in the case that involved complicated trade secret-related evidence. Plaintiff discounted this entry by two hours in furtherance of its duty to segregate time spent on non-compensable work. The Court finds that 5.90 hours is a reasonable amount of time to spend on the tasks set forth in this time entry.
Likewise, the Court is able to find that the other two time entries cited by defendants involve a reasonable amount of hours spent for the work described. Both entries were reduced by a percentage in furtherance of the duty to segregate and the remaining time indicated for these tasks is reasonable.
Defendants further argue that plaintiff's time records are not meticulous because they fail to provide enough detail about the work counsel performed for each entry. They refer to entries that use terms such as "discovery issues," "research," and "various pleadings." They cite four examples of time entries that they claim are vague and generic. The Court has reviewed plaintiff's time entries and finds that these examples are not illustrative of the narrative descriptions used by plaintiff's counsel. Furthermore, these examples are largely taken out of context. The first example complains of an entry by Thomas Buchanan for "WORK ON LAWSUIT; E-MAILS WITH CLIENT; WORK WITH ASSOCIATE REGARDING COMPLAINT," from November 11, 2005. The Complaint in this matter was filed on November 15, 2005. It is patently clear to the Court that the two hours sought for this entry were spent on preparing the Complaint in this matter. Defendants also point to a May 24, 2007 entry for 4.5 hours by Thomas Buchanan for "WORK ON VARIOUS PLEADINGS TO BE FILED, FOR PREPARATION FOR HEARING, AND ON COMMUNICATIONS WITH EXPERT AND WITH COURT." As plaintiff correctly points out, this entry is made clear by the multitude of surrounding entries on that date and the surrounding dates, which recite the specific pleadings Thomas Buchana reviewed and revised in conjunction with other attorneys. Counsel was in the process of briefing a motion to compel a deposition of defendants' retained expert, a motion for protective order, and a position statement needed by Magistrate Judge Sebelius with regard to a discovery issue.
Because the Court does not find plaintiff failed to keep meticulous, contemporaneous time records, it declines defendants' invitation to impose an across-the-board reduction of 35-60%.
Segregation
Defendants next claim that plaintiff arbitrarily and inaccurately reduced its time in its revised fee request when it segregated time spent on the trade-secret claims. In his declaration, Thomas Buchanan set forth MRSB's methodology for segregating compensable and noncompensable hours spent on this litigation. In accordance with the Court's Memorandum and Order (Doc. 860), Linda McFee, and Thomas and Jason Buchanan reviewed and amended their previously-submitted time entries and reduced the hours claimed in an attempt to segregate hours spent working on compensable trade secret claims from those hours spent on noncompensable claims. In instances where pretrial discovery and briefing activities were clearly related to the trade secret claims, MRSB made no changes. MRSB eliminated any entries where there was a clear delineation of time on claims which the Court has determined are not compensable, such as time spent on plaintiff's motion for partial summary judgment. Where time for plaintiff's motion for partial summary judgment was recorded in a combined entry, a reduction was made to remove time for work on plaintiff's motion for partial summary judgment.
MRSB found some time entries that involved work on evidence of compensable and noncompensable claims. Counsel concluded that some of the evidence discussed in these entries regarding noncompensable claims would have been offered at trial even if the only claim in the case had been the misappropriation of trade secret claims. For example, MRSB substantially reduced time spent preparing and producing Patrick Connelly for his deposition, and for preparing him for trial. But MRSB did not eliminate all time related to Connelly for several justifiable reasons. First, Connelly and/or Stonestreet were the client contacts for virtually all communications related to the case. One or both of them were consulted or approved all appropriate matters that a lawyer might consult with his client during the litigation. Also, Connelly testified on certain issues that were directly relevant to the trade secret claims, including the expectations of confidentiality, ownership, and his testimony was part of the evidence in support of the damages claim.
MRSB undertook pretrial apportionment analysis by looking at various items, such as the summary judgment briefing and determined that an apportionment of 70% of time spent on trade secret issues and 30% for noncompensable time, such as the fraud, unfair competition and portions of the contract claim was a ratio that should exceed the actual weighting of time on the trade secret claims, because of their greater complexity and central role in the case. Where time entries included both compensable and noncompensable items, and MRSB could not otherwise allocate, they applied the 70/30% ratio to pretrial discovery, document review, briefing on defendants' motions for summary judgment, preparation for the pretrial conference and work on the pretrial order, and trial preparation.
In some instances, MRSB contends that a higher percentage could have been allocated to the trade secret claims. For example, document review involved substantial time because of the volume of documents produced, and the need was driven by the misappropriation of trade secret claims. MRSB could have legitimately allocated considerably more time and fees to document review than the 70% allocation.
MRSB eliminated all time incurred for the entire first week of the four-week trial for all timekeepers, even for entries that clearly related to work on the trade secret claims. MRSB also eliminated substantial time on the post-trial file management, segregating time for matters not compensable from time related to the trade secret claims.
The Court has reviewed plaintiff's fee records, which were modified in an attempt to segregate the hours spent litigating the trade secret claims, and finds that plaintiff has fulfilled its duty to segregate as required by the Court's last Memorandum and Order. The Court finds it reasonable that the trade secret claims would incur substantially more time by counsel than the contract-related claims and that a 30% reduction is reasonable in the absence of some apparent and objective division of time. The trade secret claims involved highly technical document discovery, expert witness discovery, and motions practice. It appears that much of the acrimonious discovery-related motions practice centered around the trade secret claims. A significant portion of trial was comprised of evidence concerning the trade secret claims. Moreover, the Court explained in its last Memorandum and Order that plaintiff's duty to segregate did not require a formulaic 50% reduction in hours expended. This Court previously advised that to the extent discovery and expert retention applied fully to both the MOU-related claims and the trade secret claims, those fee requests would be reasonable. For example, the Court advised that it would be entirely proper for plaintiff to request the full amount of fees incurred as a result of retaining Marc Vianello, who testified as an expert on the lost profits calculation.
Defendants first contend that plaintiff's attempt at segregation fails because it "reconstructed" its time expended by revising the descriptions to remove reference to other claims and then "guessed" at the amount of time related to the remaining activities and arbitrarily reducing the amount of time recorded. The Court disagrees. The record belies the notion that MRSB simply guessed at the time spent on compensable versus noncompensable work. The Court accepts as true Thomas Buchanan's declaration, where he set forth the ratio that MRSB determined was reasonable for block billed entries that entailed work on compensable and noncompensable claims that could not be apportioned on an otherwise apparent and objective basis. For those entries, the firm reduced the time spent by 30%, which the Court finds reasonable
In its prior Memorandum and Order, the Court warned plaintiff that it was inclined to impose a general reduction of time to account for its failure to show how certain work was specifically allocated if it appeared that counsel requested fees for work performed during a block of time that clearly includes both compensable and noncompensable time. It is apparent to the Court that plaintiff heeded this warning and modified block billed entries accordingly by attempting to describe only the work spent on trade-secret related claims, and by reducing the total hours spent on mixed time entries. As previously discussed, the Court finds this to be a reasonable approach to segregation.
Defendants criticize plaintiff's segregation of: (1) trial time; and (2) pretrial activity. With regard to trial time, plaintiff opted to eliminate all time from its fee request for the first five trial days because it found it too difficult to segregate specific time blocks of trial time by claim. This five-day period included the in limine hearing, voir dire, and opening statements, as well as a substantial portion of Patrick Connelly's testimony. The Court finds this approach to segregating trial time is reasonable. Plaintiff reduced a substantial amount of time from its fee request to account for the fact that a portion of trial time was spent on noncompensable claims. The Court agrees that a portion of Patrick Connelly's testimony was relevant to the trade secret claims, but more importantly, this full week reduction in time sufficiently accounted for all noncompensable trial time. Defendants complain that plaintiff seeks to recover for time spent examining witnesses who testified exclusively on non-trade secret claims. However, defendants fail to account for the fact that plaintiff instead opted to eliminate all hours for one week of trial time, despite the fact that some of that time was spent on the trade secret claims. Moreover, the Court agrees with plaintiff that Sebastien Mounier, Ken Mantha, Robert Gaiani, and Etienne Haslin did not exclusively testify about non-trade secret issues. These witnesses also testified about issues such as the Proprietary Information Agreement, expectations of confidentiality, trade secret ownership, misappropriation allegations, and damages. Given the intertwined nature of much of the trial evidence, the Court is persuaded that plaintiff's method of discounting one full week of trial is a reasonable method of segregation.
Likewise, the Court agrees that plaintiff did not overly apportion pretrial activity to the trade secret issues. As the Court has already explained, it declines to simply aggregate the claims or witnesses associated with the trade secret claims and apportion plaintiff's time accordingly. The trade secret claims were significantly more complex than the contract issues in this case and necessitated a greater amount of time spent on discovery, motions practice, and trial preparation. To apply a ratio based on quantity rather than quality would be erroneous, particularly given the obviously disproportionate amount of time and attention the trade secret claims required of counsel. The Court finds that defendants' proposed reductions — over and above plaintiff's voluntary reductions — would ignore the reality that the trade secret claims required a much more significant amount of time and energy from counsel in this matter.
The Court has considered the complexity of the case, the number of reasonable strategies pursued, the responses necessitated by the maneuvering of the other side, and any potential duplication of services and finds that plaintiff's revised fee request is based on a reasonable amount of hours spent. The Court, therefore, calculates the lodestar as follows:
Timekeeper Hours Rate Lodestar Jason Buchanan 1464.70 $185 $270,969.50 Thomas Buchanan 1912.65 300 573,795.00 Linda McPhee 629.80 250 157,450.00 Christy Henry 1153.25 85 98,026.25 Karen Wilderwing 471.50 80 37,720.00 Messenger Servs. 52.50 Total 5631.90 $1,138,013.25 D. Lodestar Adjustment
Under KRPC 1.5(a), eight factors should be considered by the Court when determining the reasonableness of a fee:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
The Court has considered all of these factors in reaching the appropriate lodestar amount. In addition to the previous findings made in calculating the lodestar, the Court makes the following additional findings. This was a complex case that posed significant and numerous legal issues. The case was filed in November 2005 and did not reach trial until January 2009. Post-trial motions, with the exception of attorneys' fees, were resolved in March 2010 and the case is currently on appeal.
See Sheldon v. Vermonty, 237 F. Supp. 2d 1270, 1274 (D. Kan. 2003) (explaining that these factors "are the same factors on which the lodestar analysis is based.") (citing Shrout v. Holmes, No. 00-2069-KHV, 2001 WL 980280, at *2 (D. Kan. Aug. 10, 2001)).
The Court was called upon to resolve countless discovery motions in this case, including motions for sanctions. At each stage of these proceedings, typically routine matters have been disputed and placed before the Court for decision. Summary judgment entailed over 400 pages of briefing. The amount of claims, as well as the factual and legal issues presented on summary judgment, required a decision that exceeded 100 pages, an uncommon occurrence in this Court's experience. The complexity of the case, coupled with the sheer amount of discovery and motions practice that ensued required seasoned trial counsel in order to properly represent this plaintiff.
See Doc. 438 nn. 14, 15 (summarizing discovery motions).
Trial lasted for approximately four weeks, resulting in verdicts in favor of plaintiff on the majority of claims. Against defendant Ratier, the jury found liability for breach of good faith and fair dealing and misappropriation of trade secrets, and explicitly found that Ratier misappropriated all three trade secrets at issue. It awarded plaintiff $153,708 on the breach of contract claim and $4,795,300, the full amount of lost profits damages sought, on the misappropriation of trade secrets claim. The jury additionally found Ratier acted willfully, wantonly, or maliciously on the misappropriation of trade secrets claim and that it was entitled to punitive damages in the amount of $10,000,000. The jury found defendant Ratier not liable on plaintiff's fraud claim. Against defendant Hamilton, the jury found liability on both the unjust enrichment claim and the misappropriation of trade secrets claim, awarding $35,825 on the unjust enrichment claim. The jury additionally found Hamilton acted willfully, wantonly, or maliciously on the misappropriation of trade secrets claim and that plaintiff was entitled to punitive damages in the amount of $2,500,000. On May 7, 2009, the Court made findings of fact and conclusions of law with regard to the compensatory damages claim against Hamilton, finding damages in the amount of $4,795,300. The Court also independently evaluated the statutory factors under Kansas law for an award of punitive damages and imposed punitive damages in the amount of $9,590,600 against defendant Ratier and $2,397,650 against defendant Hamilton. Plaintiff obtained overwhelmingly favorable results and the amount of damages involved further supports the Court's award of a significant amount of attorneys' fees. The attorneys' fees awarded amount to approximately 7% of the judgment.
(Doc. 802.)
(Doc. 801.)
The Court notes that the punitive damages were awarded solely on the misappropriation of trade secrets claims.
The Court has no evidence before it on the second or fifth factor. The Court has considered plaintiff's contingency fee arrangement finds that it is not an appropriate basis for determining a reasonable fee in this matter. Given that plaintiff is entitled to recover only those fees associated with the trade secret claims, a segregated lodestar method is more appropriate. Basing the reasonable fee award on the parties' contingency agreement would not reflect counsel's duty to segregate fees in this case.
See Beck v. N. Natural Gas Co., 170 F.3d 1108, 1025 (10th Cir. 1999) (explaining that under Kansas law, a contingency fee agreement may be considered as one of several factors and that it was not an abuse of discretion for the district court to find the lodestar method more appropriate); Johnson v. Westhoff Sand Co., 135 P.3d 1127, 1135-36 (Kan. 2006) ("Indeed, the `contingent fee' factor which they declare paramount is the last one of eight enumerated.").
In sum, the Court has considered all of the factors listed in KRPC 1.5 and concludes that the lodestar calculation represents a reasonable amount of attorneys' fees incurred in prosecuting the misappropriation of trade secrets and related claims. The calculation of reasonable hours by reasonable rates need not be modified and the Court awards plaintiff $1,138,013.25 in reasonable attorneys' fees.
Defendants' Fee Request I. Background
In a September 10, 2008 Memorandum and Order, the Court allowed plaintiff to substitute the summary judgment declaration of Patrick Connelly, a primary witness, and allowed defendants additional time to supplement their summary judgment reply memorandum to the extent necessary to respond to the substitute declaration. Plaintiff was ordered to "pay reasonable fees and costs associated with drafting the supplement to the reply." In allowing plaintiff to substitute Connelly's declaration, there was no dispute that plaintiff cited heavily to the proposed substitute declaration in its response brief. The Court emphasized that the cited-to portions of the declaration generally tracked the language in the response brief, and did not at all match up with the language in the originally attached declaration. Defendants did not deny that they possessed the correct document and the Court found that this mistake should have been obvious to the reader. The Court, nonetheless, allowed defendants seven days to supplement their reply to amend their answers to the relevant statements of fact that cited to the Connelly declaration if their answers would have been different but for this substitution. Importantly, the Court did not allow plaintiff to modify its statements of fact, nor the citations to the Connelly declaration. It only allowed for the declaration itself to be substituted.
During the trial in this matter, defendants advised the Court that they had requested plaintiff pay these attorneys' fees but had not yet been paid. The Court ordered plaintiff to submit an objection if it disputed the reasonableness of defendants' fee request, which it filed on March 23, 2009. Attached to this filing is defendants' request for fees in the amount of $11,820, for 30.8 hours expended. This amount represents 5.5 hours at $580 per hour for Frederick Sperling, 13.3 hours at $500 per hour for Sonrda Hemeryck, and 12 hours at $165 per hour for Samantha Norris. Plaintiff's counsel responded that it did not believe these fees were reasonable and necessary and requested timesheets for these hours. Defendants provided plaintiff with the requested timesheets and both parties attached these timesheets to their filings on the instant motion.
(Doc. 769, Ex. C; Doc. 773, Ex. B.)
II. Discussion
Defendants submit no evidence to support the reasonableness of their requested rates. As already explained in determining the reasonable rates on plaintiff's fee request, the relevant community is the place where the litigation occurs. "While a party is free to select counsel from any locality, absent a clear showing that the matter could not reasonably have been handled by counsel from the locality, rates above the prevailing local hourly rates should not be applied." Defendants make no showing that their rates are reasonable under the applicable standard. There has been no showing that the case could not have been handled by counsel locally. In fact, the Court has already found in determining the plaintiff's reasonable attorneys' fees that a reasonable rate for an experienced litigator in the Kansas City market, with almost thirty years of experience and numerous professional achievements, is $300 per hour. The Court is unable to find that either Mr. Sperling or Ms. Hemeryck is entitled to a rate higher than this amount.
Jayhawk Inv., L.P. v. JetUSA Airlines, Inc., No. 98-2153-JWL, 1999 WL 974027, at *4 (D. Kan. Aug. 25, 1999) (citation omitted).
Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1259 (10th Cir. 2005); see also Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).
While defendants failed to provide evidence of their skill and experience in conjunction with this motion, they provided such evidence on another motion earlier in this case. Mr. Sperling has previously represented in 2007 that he has been practicing at his firm, Schiff Hardin LLP, for twenty-seven years since his federal appellate clerkship concluded. Ms. Hemeryck has been with the Schiff Hardin firm for thirteen years since her federal appellate clerkship concluded. They have both achieved numerous professional achievements. Given this information, and the previous findings with regard to the MRSB attorneys, the Court finds it appropriate to reduce Mr. Sperling's commensurate with Mr. Buchanan's and to reduce Ms. Hemeryck's rate commensurate with Ms. McFee's. The Court has been provided with no information about the skill or experience of Ms. Norris, and consequently, declines to award defendants any fees incurred for time spent by her, as it is impossible to determine a reasonable hourly rate.
See Doc. 453, Objection to Magistrate Judge Order (Dec. 14, 2007).
As the Court made clear in its September 10, 2008 Order, the mistakenly-attached declaration should have been obvious to defendants and the Court clearly warned them that the Court's award of reasonable fees should not be viewed as a "blank check." With the exception of the September 15, 2008 time entry by Mr. Sperling, the Court finds the submitted hours expended by both counsel are reasonable. The time spent by Mr. Sperling on September 15, 2008 working on reviewing "new ICE exhibits," is not compensable. The Court's Order did not award fees for time spent reviewing all of the substituted exhibits provided for in that Order, only on time spent preparing a revised reply to the statements of fact implicated by the revised Connelly declaration. The remaining hours are reasonable in light of the importance of Mr. Connelly's declaration to the motion for summary judgment and in light of the length of plaintiff's response memorandum.
Based on the previously stated findings, the Court calculates the lodestar for Mr. Sperling by multiplying 4 hours by a $300 hourly rate, resulting in $1200. The Court calculates the lodestar for Ms. Hemeryck by multiplying 13.3 hours by a $250 hourly rate, resulting in $3325. Defendants' total lodestar amount is $3575. The Court finds this presumptively reasonable amount need not be modified and shall be offset from plaintiff's award of reasonable attorneys' fees.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's Supplemental Submission in Support of Motion for Award of Attorneys' Fees (Doc. 872) is granted. Plaintiff is awarded attorneys' fees in the amount of $1,138,013.25. This amount shall be reduced by $3575, the reasonable fees incurred by defendants in association with drafting supplemental replies to plaintiff's responses to their motions for summary judgment, for a total award to plaintiff in the amount of $1,134,438.25.
IT IS SO ORDERED.
Dated: November 12, 2010