Opinion
Civil Action RE-17-219
03-05-2020
SMR, INC., Plaintiff v. CIANBRO CORP., el al., Defendants
ORDER
THOMAS D. WARREN JUSTICE, SUPERIOR COURT
Before the Court is an application by defendant Cianbro Corporation for attorney's fees and costs.
1. At the outset the parties dispute whether plaintiff SMR's claims were without merit and whether its discovery requests were oppressive. However, the relative merits of SMR's claims and defenses and whether or not SMR's discovery requests were unduly burdensome is not determinative of whether Cianbro is entitled to attorney's lees. Cianbro is entitled to attorney's fees because it prevailed in this case and because its subcontract with SMR provided that Cianbro is entitled to attorney's fees as a prevailing party in a dispute with the subcontractor or if the subcontractor defaulted. Plaintiffs Ex. 1, Subcontract §§ 16.2(f), 19.4, 20.7.
2. To the extent that the issues raised by SMR, the litigation positions that SMR took, and the assiduousness with which SMR pursued its discovery requests required counsel for Cianbro to perform more work, that has necessarily has resulted in an increase in the amount of Cianbro's attorney time and expense for which Cianbro now seeks an award of attorney's fees and costs.
3. In this case Cianbro's defense to SMR's claims and Cianbro's prosecution of its counterclaim against SMR were inextricably intertwined. See Advanced Construction Corp. v. Pilecki, 2006 ME 84 ¶ 32, 901 A.2d 189. No distinction can be drawn between the attorney's fees incurred by Cianbro in defending SMR's claims and the attorney's fees Cianbro expended in pursuing its counterclaim.
4. A party seeking an attorney's fee award has "the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U, S, 424, 437 (1983), cited in Poussard v. Commercial Credit Plan Inc., 479 A.2d 881, 885-86 (Me. 1984).
5. SMR argues that Cianbro's attorney fee claim should be denied in its entirety because it contends that Cianbro has redacted so much information in the attached billing records that its application is not properly supported. In making this argument, SMR relies on a decision by Magistrate Judge Rich in Nationwide Payment Solutions LLC v. Plunkett, 831 F.Supp.2d 337 (D.Me. 2011).
Although this was a recommended decision, it does not appear that any objections were filed. Magistrate Judge Rich's subsequent award of attorney's fees in the Nationwide case was approved without objection. See 2012 U.S. Dist. LEXIS 7964 (D. Me. Jan . 24, 2012); 2012 U.S. Dist LEXIS 18893 (D. Me. February 15, 2012).
6. However, it does not follow from the Nationwide decision that a fee request with redactions for privileged information should be denied in its entirety. Magistrate Judge Rich ruled that substantial redactions in billing invoices may impede meaningful judicial review. That leaves the party seeking attorney's fees with the alternative of submitting unredacted invoices, allowing those to reviewed by opposing counsel, or of preserving its claim of privilege and choosing
to take the risk that the court will decline to award the full requested amount on the basis of [the party's] failure to meet its burden of justifying its fee request.831 F.Supp.2d at 339. The latter alternative is the risk that Cianbro has chosen to take in this case.
7. The court finds that some of Cianbro's billing entries are insufficient to allow the court to determine whether the time spent was reasonable and requires a modest reduction of the attorney's fees requested. For this reason, the court finds that Cianbro's attorney's fees request should be reduced by $10,000. However, no reduction is appropriate with respect to other attorney-client and work product redactions when it is evident from their context that the redacted entries involved witness preparation, keeping the client informed of developments m the case, and inquiries to the client with respect to discovery and other issues.
8. There is no doubt that Cianbro was required to incur substantial attorney time in connection with the litigation of this case. This included initial proceedings (including a court hearing on connection with SMR's lien filing and the substitution of a bond), document production, preparation for and attendance at depositions, two discovery conferences, a judicial settlement conference, trial preparation, a five-day trial, and lengthy post-trial briefing, The court is aware of the complexity of the document production involved from the discovery conferences, and the complexity of the factual issues presented at trial is demonstrated by the multiplicity of exhibits and the court's 23-page, 84 paragraph decision, Except for the modest deductions referred to above, the court finds the time spent on all the above tasks to be reasonable.
9. SMR does not challenge the hourly rates sought for Cianbro's attorneys, which the court finds to be reasonable. The court also finds, given the complexity of the case and the number of exhibits, that it was not unreasonable for Cianbro's counsel to staff this case with a partner and an associate and for both to attend trial even though SMR only had one attorney at trial.
10. Cianbro is accordingly entitled to attorney's fees totaling $115,935.00.
11. Cianbro is also seeking costs of $32,369.13. These costs include but are not limited to the costs that would be available to a prevailing party under Rule 54(d) because the SMR subcontract provides that upon prevailing Cianbro is entitled to recover "attorney's fees, other legal fees, expert fees, court costs, [and] all expenses of litigation . . . reasonably incurred in connection with any dispute with the Subcontractor." Plaintiffs Ex. 1, Subcontract § 20.7.
12. Of the $32,369.13 in costs sought by Cianbro, SMR objects to items totaling $19,135.58. These consist of a $1,232.08 copying fee for emails, a $7,000 conversion fee to convert emails from native to TIFF format, and $10,903.50 in expenses for Cianbro's expert witness.
13. The court does not uphold SMR's objections to the costs of copying and converting emails.
14. The expert witness costs are in a different category. Counsel for SMR was successful in impeaching Mr. Kellar-to the point where the court did not rely on Mr. Kellar's testimony except where that was supported by other evidence. However, the court did not disregard that testimony entirely. Accordingly, the court will reduce the costs sought for Mr. Kellar's expenses to $3,600.
The entry shall be:
1. Pursuant to the Subcontract, defendant Cianbro Corporation shall recover attorney's fees of $115,935.00 against plaintiff SMR.
2. Defendant Cianbro Corporation shall recover litigation costs pursuant to § 20.7 of the Subcontract in the amount of $25,065.63.
3. Accordingly, judgment shall enter in favor of defendant Cianbro Corporation and against plaintiff SMR Inc. in the amount of $ 162, 200.63, representing $21,200.00 in damages set forth in the November 7, 2019 order plus the attorney's fees and litigation costs set forth above. Pre-judgment interest shall apply at 3.87%. Post-judgment interest shall run at 7.53%.
4. The cleric is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).