United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER.
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Brian Southard's
(“Southard”) Motion for Attorneys' Fees,
Costs, and Post-Judgment Interest (Doc. 42). Defendant
William (“Bill”) Goehl (“Goehl”) has
not responded and the time to do so has
elapsed. Accordingly, the Motion is ready for
disposition. For the following reasons, Plaintiff's
Motion will be GRANTED, in part.
an action for breach of contract (Count I), breach of
fiduciary duty (Count II), Fraudulent Misrepresentation
(Count III), Conversion (Count IV), Declaratory Judgment
(Count V), Injunction (Count VI), Punitive Damages (Count
VII), and Attorneys' Fees (Count VIII) arising out of the
souring of a business relationship. Southard and Goehl each
own 50% of Dent Nation International, LLC
(“DNI”), which specializes in repairing
automobiles damaged by collisions, weather, and other causes.
Southard and Goehl formed DNI as a Missouri LLC on June 13,
2012. By September 1, 2012, Southard had invested $58, 955.21
in capital contributions to DNI and deposited $15, 000 into
DNI's bank account. However, as of March 2013, Goehl
removed Southard's access to the DNI bank account. Goehl
also allegedly failed to pay Southard his 50% interest of
DNI's disbursements as required by the operating
agreement, used company money for personal and non-business
related expenses, and subjected the company account to
overdraft and other fees.
September 27, 2016, Southard filed a Motion to Enforce
Settlement Agreement and Mutual General Release, Entry of
Consent Order and Judgment, and Award of Attorneys' Fees
and Costs (Doc. 34) (hereinafter “Motion to Enforce
Settlement Agreement”). Relevant to the current Motion,
in his Motion to Enforce Settlement Agreement, Southard
requested attorneys' fees and costs for work associated
with the enforcement of the settlement agreement
(Id. at 8-9). On October 12, 2016, after a
conference call with counsel, the Court granted Goehl an
additional seven (7) days to respond to the Motion (Doc. 37).
No response was filed. On October 26, 2016, the Court held a
Motion Hearing to address Southard's Motion to Enforce
Settlement Agreement (Doc. 39). After the hearing and for the
reasons stated on the record, the Court granted
Southard's Motion to Enforce Settlement Agreement,
entered the Parties' Consent Order and Judgment, closed
the case, and established a timeline for the Parties to brief
the attorneys' fees and cost issues (Docs. 40, 41).
November 19, 2016, Southard filed his Motion for
Attorneys' Fees (Doc. 42). In his Motion, Southard
requests $5, 120.87 for 15.5 hours at an hourly fee of
$285.00 and costs in the amount of $703.37 for travel by
Southard's counsel Mr. Lochlin Samples (“Mr.
Samples”) (Id. at 3-4). Southard also request
$14, 430.00 for the work of Mr. Joseph Dinardo (“Mr.
Dinardo”), also an attorney at Mr. Samples' firm
and a collections expert, for 44.4 hours of work at an hourly
fee of $325.00 (Id. at 4). Mr. Dinardo is not an
attorney of record in this case. In total, Southard requests
an award of $19, 550.87 for attorneys' fees and costs
related to enforcing the settlement agreement (Id.
at 5). Southard additionally requests post-judgment interest
on the entire judgment pursuant to 28 U.S.C. § 1961(a)
(Id. at 6). Therefore, in consideration of the
Court's prior entry of Judgment in the amount of $250,
000, attorneys' fees, costs, and then-accrued
post-judgment interest, Southard requests the Court award
Southard $269, 214.23 and direct that interest continue to
accrue according to 28 U.S.C. § 1961(a).
support of his request, Southard provides the Court with the
affidavit of Mr. Samples indicating Mr. Samples'
education, background and experience along with an overview
of all of the fees and costs requested (Doc. 42-1 at 1-3).
Specifically, Mr. Samples indicates that his standard hourly
rate is $325.00 but, at the time he was retained by Southard,
his rate was $285.00 (Id. at 2). He states that he
spent 5.4 hours of his time through October 31, 2016 and an
additional 10.2 hours since that time through the filing of
the current motion on matters relating to the breach of the
settlement agreement (Id. at 3). Attached to the
affidavit, Southard provides: (1) a copy of the controlling
fee agreement between Mr. Samples' firm and Southard
(Id. at 4-8), (2) timesheets for Mr. Samples and Mr.
Dinardo from August 2, 2016 to August 29, 2016, from
September 9, 2016 to September 27, 2016, and from October 7,
2016 to October 31, 2016 (Id. at 9-15); and (3) Mr.
Samples' expense report for his travel related to the
October 26, 2016 hearing and associated supporting
documentation for the report including relevant receipts
(Id. at 16-23).
also provides the Court with the affidavit of Mr. Dinardo
indicating his education, background and experience (Doc.
42-2). Mr. Dinardo states that he charged Southard at a rate
of $195.00 per hour for 39.0 hours of work for a total of $7,
605.00 for the period through October 31, 2016
(Id.). He notes that this total amount was reduced
to $6, 522.92 (Id.). Mr. Dinardo indicates that
since October 31, 2016 through the date of the motion, he
spent an additional 5.4 hours working for Southard “in
attempting to collect monies owed to him by [Goehl]”
(Id. at 2). Finally, Southard provides the affidavit
of Southard indicating that he has incurred additional legal
fees and costs to enforce the terms of the settlement
agreement (Doc. 42-3).
a diversity action, state law governs the availability of
attorney's fees where no conflicting federal statute or
court rule applies.” Weitz Co. v. MH
Washington, 631 F.3d 510, 528 (8th Cir. 2011). “In
Missouri, attorney's fees are not recoverable from
another party, except when allowed by contract or
statute.” Id. Here, the settlement agreement
entered into by the Parties contemplated the award of
attorneys' fees and costs upon the material breach of a
party (Doc. 38 at ¶13). The Court previously determined
that Goehl materially breached the settlement agreement and,
therefore, granted Southard's Motion to Enforce
Settlement Agreement. In so doing, the Court also granted
Southard's request for attorney's fees and costs
(Doc. 40). The only remaining issue before the Court is to
determine a reasonable award of attorney's fees and
a trial court has discretion to award reasonable
attorneys' fees in Missouri, various factors are
appropriately considered to determine the amount of fees to
award.” PNC Bank, Na'l. Ass'n v. El Tovar,
Inc., No. 4:13-CV-1073 CAS, 2014 WL 1648747, at *6 (E.D.
Mo. Apr. 23, 2014). “The starting point in determining
attorney fees is the lodestar, which is calculated by
multiplying the number of hours reasonably expended by the
reasonable hourly rates.” Dindinger v. Allsteel,
Inc., 853 F.3d 414, 429 (8th Cir. 2017) (quoting
Fish v. St. Cloud State Univ., 295 F.3d 849, 851
(8th Cir. 2002)). There is a strong presumption that the
lodestar calculation represents a reasonable fee award.
City of Burlington v. Dague, 505 U.S. 557, 562
(1992). When setting the reasonable number of hours and
reasonable hourly rate, the Court takes into account: (1)
time and labor required; (2) novelty and difficulty of the
questions; (3) skill requisite to perform the legal service
properly; (4) preclusion of other employment, due to
acceptance of case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and
the results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the undesirability of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar
cases. Hensley v. Eckerhart, 461 U.S. 424, 430 n.3,
first step of the lodestar analysis requires the Court to
determine the reasonable hourly rate for the attorney's
services. “A reasonable hourly rate is usually the
ordinary rate for similar work in the community where the
case has been litigated.” Emery v. Hunt, 272
F.3d 1042, 1048 (8th Cir. 2001). The fee applicant has the
burden to show that the requested rate is reasonable and
consistent with rates within the community “for similar
services by lawyers of reasonably comparable skill,
experience and reputation.” Blum v. Stenson,
465 U.S. 886, 895 n.11 (1984). “[C]ourts may draw on
their own experience and knowledge of prevailing market
rates” in determining a reasonable rate. Warnock v.
Archer, 397 F.3d 1024, 1027 (8th Cir. 2005).
“[D]etermining an appropriate ‘market rate'
for the services of a lawyer is inherently difficult.”
Blum, 465 U.S. at 895 n.11. “[W]here an
attorney requesting fees has well-defined billing rates,
those rates can be used to help calculate a reasonable rate
for a fee award.” McDonald v. Armontrout, 860
F.2d 1456, 1459 (8th Cir. 1988).
has submitted several affidavits as well as detailed billing
statements which identify the attorney performing the task,
the legal task performed, the amount of time expended, and
the billable amount for the task given the attorney's
hourly rate. In Southard's Motion for Attorneys'
Fees, Southard requests an hourly rate of $325.00 for Mr.
Dinardo and an hourly rate of $285.00 for Mr. Samples. The
Court finds Mr. Samples' requested hourly rate to be
reasonable for an attorney of his skill and experience in
light of the Court's familiarity with billing rates in
this area. See SSM Managed Care Org., L.L.C. v.
Comprehensive Behavioral Care, Inc., No. 4:12-CV-2386
CAS, 2014 WL 1389581, at *3 (E.D. Mo. Apr. 9, 2014)
(providing a then-current overview of local billing rates).
However, contrary to Southard's request in his Motion,
Mr. Dinardo states in his affidavit that he charged Southard
at a rate of $195.00 per hour not $325.00 per hour (Doc. 42-2
at 2). This billable rate is further supported by the billing
records which indicate that Mr. Dinardo's hourly fee is
$195.00 (See, e.g., Doc. 42-1 at 13). Accordingly,
the Court finds the reasonable hourly rate for Mr.
Dinardo's work to be $195.00 per hour not $325.00 per
the Court must determine the reasonable number of hours
expended in bringing the Motion to Enforce Settlement
Agreement. Southard indicates that Mr. Dinardo spent a total
of 44.4 hours and Mr. Samples spent a total of 15.5 hours on
the matter. First, the Court finds the number of hours billed
by Mr. Dinardo to be excessive in light of the clear cut
facts underlying the Motion to Enforce Settlement Agreement.
While Mr. Dinardo appears to have taken the lead on this case
after a settlement was reached, he was never counsel of
record in this matter and has requested more than forty hours
for work largely related to one motion. Next, the Court notes
that Mr. Samples and Mr. Dinardo appear to have performed
some of the same tasks. For example they both attended a
telephone conference before the undersigned. Counsel also
frequently communicated with one another regarding the status
of the case. A district court should exclude
“excessive, redundant, or otherwise unnecessary”
hours from its estimate. Hensley, 461 U.S. at 434.
However, “[t]ime spent by two attorneys on the same
general task is not . . . per se duplicative. Careful
preparation often requires collaboration and
rehearsal.” Myers v. Aitkin Cty., No. CV
14-473 (JRT/LIB), 2017 WL 1134575, at *3 (D. Minn. Mar. 27,
2017) (quoting Rodriguez-Hernandez v. Miranda-Velez,
132 F.3d 848, 860 (1st Cir. 1998)). Accordingly, and in
consideration of Mr. Dinardo's ...