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Pogue v. The Northwestern Mutual Life Insurance Co.

United States District Court, W.D. Kentucky, Louisville Division

April 25, 2017

JAMES H. POGUE, Plaintiff,
v.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          COLIN LINDSAY, MAGISTRATE JUDGE.

         This matter is before the Court on a request for attorney's fees by The Northwestern Mutual Life Insurance Company ("Northwestern Mutual"). The Court ordered Plaintiff James H. Pogue ("Pogue") to reimburse Northwestern Mutual for attorney's fees incurred in relation to a motion to quash (DN 48), a motion to exclude (DN 54), and the motion for leave to file a sur-reply (DN 60). (See DN 70 at 30, 32.) Pogue has objected to Northwestern Mutual's request. For the following reasons, the Court overrules in part and sustains in part Pogue's objections and orders him to reimburse Northwestern Mutual in the amount of $4, 550.

         BACKGROUND

         On June 1, 2016, the Court ordered Pogue to reimburse Northwestern Mutual for its attorney's fees and costs incurred in relation to the three motions identified above. (DN 70 at 30, 32.) Specifically, the Court ordered as follows:

IT IS FURTHER ORDERED that Pogue's counsel shall REIMBURSE Northwestern Mutual for its attorney's fees and costs incurred in relation to the motion to quash (DN 48), the motion to exclude (DN 54), AND the motion for leave to file a sur-reply (DN 60). Such reimbursement shall be made BY COUNSEL and SHALL NOT be charged as costs to Pogue or otherwise be deducted from any payment Pogue receives in conjunction with this action. No later than ten (10) days after entry of this memorandum opinion and order, counsel for Northwestern Mutual shall provide to Pogue's counsel documentation of its attorney's fees and costs incurred in relation to the three motions listed above. No later than ten (10) days after receiving such documentation from defense counsel, Pogue's counsel shall pay Northwestern Mutual the amount requested, by such means as are preferable to Northwestern Mutual, OR file with the Court any objections they have to Northwestern Mutual's reported fees and costs. Any such objections shall be limited to the reasonableness of the amounts claimed.

(Id. at 32.) In accordance with that order, on June 9, 2016, Northwestern Mutual's counsel sent to Pogue's counsel a short affidavit and bill of costs. (DN 95-1.)

         On July 22, 2016, Pogue submitted objections to the fees requested by Northwestern Mutual. (DN 95.) Pogue argued that (1) the hourly rates for Northwestern Mutual's attorney and paralegal were excessive; (2) Northwestern Mutual sought reimbursement for duplicative work; and (3) "specific entries contain excessive hours and are flawed." (Id. at 1.) First, Pogue contends that "aside from a self-serving affidavit, [Northwestern Mutual] provides little supporting proof to support the $340 hourly rate requested for its counsel" or a $190 hourly rate for its paralegal. (Id. at 2.) Second, Pogue requests that the Court reduce Northwestern Mutual's requested fees by $748 due to duplicative entries; he argues that it was inappropriate for Northwestern Mutual to seek reimbursement for 2.2 hours of drafting a motion to exclude, because that motion was based on the same factual and legal arguments that it asserted in its response to Pogue's motion to quash. (Id. at 3.) Third, and finally, Pogue objects to two specific entries as excessive: (1) 3.7 hours for "revis[ing]" a reply in support of a motion to exclude, and (2) 3.1 hours for "[d]rafting reply in support of motion for leave to file sur-reply, " which Pogue objects to based on an improper calculation of the corresponding fee, as well as an excessive amount of time. (Mat 4-5.)

         On August 2, 2016, Northwestern Mutual filed a short response to Pogue's objections. (DN 97.) Northwestern Mutual argued that its request for fees was made in good faith and that it "suppl[ied] Plaintiffs counsel with an affidavit which included a detailed itemization of each task performed, the exact amount of time spent on each task, and the associated charges for that time." (DN 97 at 1.) Northwestern Mutual argues that Pogue's objection "attempts to take advantage of its good faith by criticizing the language used to describe the services rendered and contorting that language to fabricate objections to those time entries." (Id.) Northwestern Mutual agreed that it miscalculated one time entry and did not object to reimbursement being decreased accordingly. (See Id. at 2 n.l.) It stated that its fees were reasonable based on the nature and extent of the discovery disputes in this action; that it would supplement its filings if so directed by the Court; and that otherwise, it would not respond specifically to Pogue's objections so as to avoid "perpetuat[ing] the unsavory tone that has permeated this matter[.]" (Id. at 3.)

         On August 18, 2016, following a telephonic status conference, the Court required Northwestern Mutual to file a supplement to its response to Pogue's objections. (DN 104.) On August 19, 2016, Northwestern Mutual submitted a supplemental affidavit and amended supplemental affidavit providing further information on the experience of the attorney and paralegal on the case and the rates reflected in the bill of costs. (DN 105-1, 106-1.)

         On September 8, 2016, Pogue filed a supplemental response (DN 108). He limited his response to the reasonableness of the hourly rates, stating that this was the only subject covered by Northwestern Mutual's supplemental affidavit. (Id. at 1 (citing DN 105).) Pogue contends that Northwestern Mutual still failed to show that the hourly rates are routine rates for Northwestern Mutual to pay its counsel, that the rate is reasonable for the Louisville, Kentucky legal market, or that $340 is counsel's usual hourly rate. (Id. at 2.) Similarly, Pogue argues that Northwestern Mutual simply relies on counsel's affidavit regarding the paralegal's hourly rate, and that it fails to show that a rate of $190 is reasonable in this market. (Id.)

         DISCUSSION

         "As the party applying for attorney's fees, [Northwestern Mutual] has the burden of showing [that it is] entitled to such an award by documenting the appropriate time spent on the matter in addition to hourly rates." Clear Cast Group, Inc. v. Ritrama, Inc., 2012 U.S. Dist. LEXIS 91188, *2 (N.D. Ohio July 2, 2012) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (additional citations omitted). "Such a requirement does not require the party to show exactly how each minute was spent, however the general subject matter should be contained in counsel's time sheets." Id. at *2-3. The accepted method of calculating attorney's fees is known as the "Lodestar method." J & J Sports Prods., Inc. v. Cole's Place, Inc., 2011 U.S. Dist. LEXIS 153137, *14 (W.D. Ky. Nov. 28, 2011) (citations omitted). The Lodestar method requires that the "hours reasonably expended by counsel are multiplied by a reasonable hourly rate commensurate with that fee rate imposed in the local legal community by counsel of similar experience." Id. (citations omitted).

         1. Reasonableness of Attorney Coryell's Hourly Rate

         As the party applying for attorney's fees, Northwestern Mutual has the burden of showing that its hourly rates associated with this action are reasonable. See Holly v. UPS Supply Chain Solutions, Inc., 2015 U.S. Dist. LEXIS 65614, *15 (W.D. Ky. May 19, 2015) (citations omitted). Northwestern Mutual seeks reimbursement in the amount of $5, 094.[1] This includes 14.2 hours of work at an hourly rate of $340 for attorney Cornelius E. Coryell II ("Coryell") and 1.4 hours of work at an hourly rate of $190 for paralegal Beth Friedman ("Friedman"). (DN 95- 1 at 5.) Initially, Northwestern Mutual provided a bill of costs to Pogue and did not provide an affidavit describing counsel's experience or usual rates. Northwestern Mutual did, however, provide such information after the Court ordered it to do so. Coryell submitted an affidavit explaining his experience and outlining his usual rates and the rates he is charging ...


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