Opinion
No. 01-2338-KHV.
June 30, 2003.
MEMORANDUM AND ORDER
On February 20, 2003, the Court found that defendant had violated the Court's preliminary injunction and held him in contempt. It did not impose monetary sanctions, however, because plaintiff had not proved any damages. See Memorandum And Order (Doc. #109) at 13. On April 29, 2003, the Court sustained plaintiff's unopposed motion to alter the judgment and allowed plaintiff leave to file an application for attorney's fees and expenses that it had incurred as a result of defendant's contempt. This matter comes before the Court on Plaintiff's [Motion] Briefand Affidavit In Support of Its Application For Attorney's Fees And Expenses (Doc. #113) filed March 5, 2003. For reasons set forth below, the Court finds that plaintiff reasonably expended $14,502.00 in attorney's fees related to the contempt proceeding.
Analysis
The Court set out the factual details of this case in several written orders and will not repeat them here. See Memorandum And Order (Doc. #101) filed June 27, 2002 (sustaining defendant's motion for summary judgment but ordering defendant to show cause why court should not hold him in contempt);Memorandum And Order (Doc. #109) filed February 20, 2003 (holding defendant in contempt); and Memorandum And Order (Doc. #112) filed April 29, 2003 (granting plaintiff's motion to alter or amend to allow plaintiff to submit application for attorney's fees related to defendant's contempt).
Plaintiff asserts that it is entitled to fees of $105,643.50 and expenses of $6,141.77, for a total of $111,785.27. The Court's review of the billing statements indicates that plaintiff seeks reimbursement for work well outside the scope of the contempt proceeding. Defendant contends that any award of fees must be restricted to reasonable and necessary time and expense incurred in participating in the contempt proceedings. The Court agrees. See Memorandum And Order (Doc. #109) at 14-15 ("[a] complainant may recover attorney's fees and expenses incurred in prosecuting a contempt") (citing, inter alia,Select Creations Inc. v. Paliafito. Am. 906 F. Supp. 1251, 1278 (E.D. Wis. 1995) (independent of compensatory damage award, proper to award expenses and fees in civil contempt proceeding);Allied Materials Corp. v. Superior Prods. Co., 620 F.2d 224, 227 (10th Cir. 1980) (court may award compensatory fees in civil contempt proceeding; otherwise, benefits afforded by order might be diminished by attorney's fees necessarily expended in bringing action to enforce order)). Civil contempt may be used to compensate for injuries from noncompliance with a court order. Reliance Ins. Co. v. Mast Constr. Co., 159 F.3d 1311, 1318 (10th Cir. 1998) (citing O'Connor v. Midwest Pipe Fabrications. Inc., 972 F.2d 1204, 1211 (10th Cir. 1992)).
The Court must determine the amount of fees and expenses which plaintiff reasonably incurred in participating in the contempt proceedings. In doing so, the Court follows the familiar lodestar analysis developed under 42 U.S.C. § 1988(b), which provides for attorney's fees for prevailing parties in certain civil rights actions. See Case v. Unified Sch. Dist. No. 233,157 F.3d 1243, 1249 (10th Cir. 1998) The presumptively reasonable attorney's fee is the product of reasonable hours times a reasonable rate. Id. This calculation yields a "lodestar'" figure which is subject to adjustment. Blum v. Stenson, 465 U.S. 886, 888 (1984).
1. Number of Hours
The Court's review of plaintiff's billing statements indicates that Robert Bjerg spent 60.6 hours on the contempt proceedings from the date the Court issued the show cause order (June 27, 2002) through the date of the contempt hearing (July 29, 2002). During this time Rachel Baker spent 42.1 hours on the contempt proceeding. Defendant contends that the Court must deduct certain hours from plaintiff s claim. Defendant first asserts that many of the entries represent large blocks of time (1.2 hours to 3.6 hours) for which the entries are imprecise, e.g., "preparations for hearing on contempt." Although the Court agrees that the entries could be more precise, the Court does not consider such entries, for small blocks of time, to be so imprecise as to justify a reduction in the number of hours. Cf. Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (affirming reduction because lawyers did not keep records that revealed how hours were allotted to specific tasks).
Defendant also challenges the fact that two attorneys (Mr. Bjerg and Ms. Baker) attended the contempt hearing, which lasted one (very long) day. In Ramos, the Tenth Circuit suggested that "the presence of more than two lawyers during trial or the presence of more than one lawyer at depositions and hearings must be justified to the court." 713 F.2d at 554 n. 4. As defendant points out, Mr. Bjerg questioned the two witnesses who testified, and plaintiff has not otherwise justified compensation for both attorneys. The Court therefore will omit the 12.0 hours that Ms. Baker spent at the hearing.
The Court finds that Mr. Bjerg reasonably expended 60.6 hours and Ms. Baker reasonably expended 30 hours on the contempt proceedings.
2. Reasonable Hourly Rates
In setting the hourly rate, "the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees."Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983). A reasonable hourly rate comports with rates "prevailing in the community for similar services for lawyers of reasonably competent skill, experience, and reputation." Blum, 465 U.S. at 896 n. 11.
Plaintiff proposes an hourly fee of $210.00 to $230.00 per hour for Robert J. Bjerg, a 1980 law school graduate who has engaged in commercial litigation for more than 22 years. Plaintiff presents Mr. Bjerg's affidavit that $210.00 to $230.00 is his regular hourly rate, but does not provide evidence of the market rate in the Kansas City metropolitan area for lawyers with similar experience in commercial litigation. Defendant asserts that $150.00 per hour is the market rate for this type of work, but cites no evidence other than his counsel's hourly rate, which is $125.00. Based on Mr. Bjerg's skill, experience and performance, the Court finds that $170.00 is a reasonable hourly rate for the time which he reasonably expended on the contempt proceedings.
Plaintiff proposes an hourly fee of from $180.00 to $220.00 for Ms. Baker, a 1991 law school graduate who concentrates on employment and labor disputes. Defendant asserts that the top reasonable hourly rate for Ms. Baker is $150.00, but again cites no evidence other than his counsel's hourly rate of $125.00. The Court finds that the local market rate for attorneys with skill comparable to that of Ms. Baker is $140.00. Cf. Cadena v. Pacesetter Corp., No. 97-2659-KHV, 1999 WL 450891, at *6 (Kan. April 27, 1999) ($120.00 per hour reasonable for attorney with six years of litigation experience).
3. Lodestar Calculation
The Court concludes that a lodestar figure is properly calculated as follows:
R. Bjerg 60.6 hours x $170.00/hour = $10,302.00 R. Baker 30 hours x $140.00/hour = $4,200.00
TOTAL = $14,502.00
Once a court has determined the lodestar amount, "[t]here remain other considerations that may lead the district court to adjust the fee upward or downward." Hensley, 461 U.S. at 434. Neither party argues that the lodestar should be adjusted, and the Court finds that the loadstar is the appropriate measure of attorney's fees for the contempt proceeding. See Blum, 465 U.S. at 897 (once fee applicant shows that claimed rates and number of hours are reasonable, resulting product is presumed to be reasonable fee). Based on all of the above, the Court awards plaintiff $14,502.00 in attorney's fees related to the contempt proceedings.
4. Expenses
Plaintiff seeks expenses of $6,141.77. Defendant points out that the only expense that plaintiff possibly incurred from June 27 to July 29, 2002 was $69.80 for copies of records that plaintiff subpoenaed on April 10, 2002. As defendant further notes, plaintiff incurred this expense in pursuit of the underlying claim, and it is not an expense of the contempt proceeding. The Court finds that plaintiff is not entitled to expenses.
IT IS THEREFORE ORDERED that Plaintiff's [Motion] Brief and Affidavit In Support of Its Application For Attorney's Fees And Expenses (Doc. #113) filed March 5, 2003 be and hereby is SUSTAINED IN PART. No later than July 31, 2003, the Court orders defendant to pay plaintiff $14,502.00 in attorney's fees as sanction for his contempt.