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Grimm v. Central Landscaping, Inc.: US District Court : ERISA | FEES - inadequate documentation of time reduces fee award

William Grimm and Jeffrey Seipel, as Trustees
of the Minnesota Laborers Pension Fund, and
each of their successor trustees,
v. Civil No. 07-3215 (JNE/SRN)
Central Landscaping, Inc.,
This case is before the Court on Plaintiffs Motion for Attorney Fees and Costs.
Plaintiffs seek ,072.95 in fees and costs. For the reasons set forth below, the Court awards
Plaintiffs ,085.17.
Plaintiffs are trustees of a multiemployer fringe benefit plan. Defendant withdrew from
the plan in 2005. In January 2006, Plaintiffs notified Defendant of its withdrawal liability.
Defendant disputed Plaintiffs calculation, and Plaintiffs recalculated the withdrawal liability. In
September 2006, Plaintiffs notified Defendant of the recalculated withdrawal liability.
Defendant continued to dispute its withdrawal liability and requested arbitration in November
2006. Plaintiffs brought this action in July 2007 under the Employee Retirement Income
Security Act (ERISA) to recover withdrawal liability.
Asserting that Defendant could not contest Plaintiffs calculation of withdrawal liability
because Defendant had not timely initiated arbitration, Plaintiffs moved for summary judgment.
They sought a judgment in the amount of 5,946 plus liquidated damages, interest, attorney
fees, and costs. In the alternative, assuming that Defendant had timely initiated arbitration,
Plaintiffs asked the Court to order Defendant (1) to make past due withdrawal liability payments
and (2) to pay liquidated damages, interest, attorney fees, and costs.
In June 2008, the Court granted Plaintiffs motion. Having concluded that Defendant had
timely initiated arbitration, the Court ordered Defendant to make all past due withdrawal liability
payments. The Court also awarded liquidated damages, interest, reasonable attorney fees, and
costs to Plaintiffs. See 29 U.S.C. 1132(g)(2) (2000). Plaintiffs now seek ,112.00 for expert
witness fees, ,001.25 for attorney fees, and 9.70 for service and filing fees.
The Court begins with Plaintiffs request for expert witness fees. Defendant asserts that
Plaintiffs cannot recover these fees. Section 1132 does not authorize a district court to shift fees
for expert witnesses except to the extent allowed by 28 U.S.C. 1821, 1920 (2000). Agredano
v. Mut. of Omaha Cos., 75 F.3d 541, 544 (9th Cir. 1996); Holland v. Valhi Inc., 22 F.3d 968, 979
(10th Cir. 1994). Here, Plaintiffs do not rely on section 1821 or 1920 to support their request for
expert witness fees. Accordingly, the Court denies Plaintiffs motion insofar as Plaintiffs seek
expert witness fees.
The Court turns to Plaintiffs request for attorney fees. Defendant argues that the amount
sought for attorney fees in excessive. To calculate an award of reasonable attorney fees, a court
uses as a starting point the number of hours reasonably expended on the litigation multiplied by
a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see Brown v. Aventis
Pharm., Inc., 341 F.3d 822, 829 (8th Cir. 2003). The party seeking an award of fees should
submit evidence supporting the hours worked and rates claimed. Where the documentation of
hours is inadequate, the district court may reduce the award accordingly. Hensley, 461 U.S. at
Here, Plaintiffs support their request for fees with an annual summary. For 2006, they
claim 8.5 hours of a senior attorneys time at 5 per hour. They describe this time as devoted
to an investigation of the basis of Plaintiffs claims, an assessment of Defendants withdrawal
liability, and the preparation of a demand letter.
For 2007, Plaintiffs seek 16.5 hours of the senior attorneys time at 0 per hour, 23.75
hours of a junior attorneys time at 0 per hour, and 6.5 hours of a paralegals time at 5 per
hour. Plaintiffs describe the services performed in 2007 as (1) extensive communications
between Plaintiffs attorneys and Defendants counsel to secure past due withdrawal liability
payments; (2) the commencement of this action by Plaintiffs attorneys; (3) significant services
related to Plaintiffs prosecution of their claims; and (4) the paralegals assistance to further
facilitate the processing of Plaintiffs claims.
Finally, for 2008, Plaintiffs claim 20.25 hours of the senior attorneys time at 0 per
hour, 72.25 hours of the junior attorneys time at 5 per hour, and 11.25 hours of the
paralegals time at 0 per hour. According to Plaintiffs, the services rendered in 2008 include
the preparation and service of all appropriate disclosures and expert witness disclosures,
settlement negotiations, and preparation of Plaintiffs motion for summary judgment.
Defendant contends that the hours requested in 2006 are excessive given the senior
attorneys expertise in the area of employee benefits for ERISA funds and the role of Plaintiffs
actuaries in calculating withdrawal liability. Defendant also maintains that the hours claimed in
2007 are excessive because of the formulaic nature of Plaintiffs correspondence and pleadings,
and Plaintiffs failure to justify the charges associated with the significant services performed
by Plaintiffs counsel.1 Finally, Defendant maintains that the hours claimed in 2008 are
1 Defendant does not object to the hours claimed in 2006 or any portion of the hours
claimed in 2007 on the ground that they were not incurred in relation to this action. See
Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 314 n.10 (3d Cir. 2008); Parke v. First
Reliance Standard Life Ins. Co., 368 F.3d 999, 1011 (8th Cir. 2004); Peterson v. Contl Cas. Co.,
282 F.3d 112, 121 n.5 (2d Cir. 2002).
excessive because they relate to the preparation of boilerplate disclosures, a boilerplate
motion for summary judgment, and boilerplate supporting papers. Defendant also notes that
the primary dispute between the partieswhether Defendant timely initiated arbitrationwas
resolved in its favor. Accordingly, Defendant asserts that a substantial reduction is appropriate.
The Court begins with the number of hours reasonably devoted to the litigation.
Plaintiffs presentation of the hours claimed on an aggregate basis and the vague description of
many of the services performed inhibit the Courts review of the request: Incomplete or
imprecise billing records preclude any meaningful review by the district court of the fee
application for excessive, redundant, or otherwise unnecessary hours and may make it
impossible to attribute a particular attorneys specific time to a distinct issue or claim. H.J. Inc.
v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (quoting Hensley, 461 U.S. at 434). To
account for Plaintiffs inadequate documentation, the Court reduces the hours claimed by 25%.
The Court turns to the hourly rates claimed by Plaintiffs. 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). In determining a reasonable hourly rate, a
district court may rely on its own knowledge of prevailing market rates. Warnock v. Archer, 397
F.3d 1024, 1027 (8th Cir. 2005). Here, Defendant does not object to the rates claimed by
Plaintiffs, and the Court concludes that they are reasonable. Application of the hourly rates to
the reduced hours yields an initial calculation of ,250.94.
The Court concludes that a reduction of the initial calculation is warranted given the
results obtained by Plaintiffs. See Griffin v. Jim Jamison, Inc., 188 F.3d 996, 997 (8th Cir.
1999). Plaintiffs devoted a substantial portion of their efforts in this litigation to their
unsuccessful attempt to preclude Defendant from contesting Plaintiffs calculation of withdrawal
liability in arbitration. From the documentation submitted by Plaintiffs to support their fee
request, the Court is unable to identify the hours spent on this argument. Under the facts and
circumstances of this case, the Court concludes that a reduction of the initial calculation by 50%
is appropriate. Thus, the Court awards ,125.47 in attorney fees to Plaintiffs.
Finally, Plaintiffs seek to recover their service and filing fees. Defendant does not
contest this request. Accordingly, the Court awards 9.70 to Plaintiffs for service and filing
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
1. Plaintiffs Motion for Attorney Fees and Costs is [Docket No. 31] is
2. Defendant is liable to Plaintiffs for reasonable attorney fees and costs in
the amount of ,085.17.
Dated: August 19, 2008
s/ Joan N. Ericksen
United States District Judge


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