Cain v. Patel

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

)

LEA CAIN, )

)

Plaintiff, )

) Case No. 19-cv-1385-RJD

v. )

)

HIMANSHU “SAM” PATEL and )

ANTHENEON, ILLINOIS, INC., )

)

Defendants.

ORDER

DALY, Magistrate Judge:

This matter comes before the Court on Plaintiff’s Motion for Attorney Fees and Expenses

(Doc.128). Defendants filed a Response (Doc. 132). As explained further, Plaintiff’s Motion is

GRANTED IN PART and DENIED IN PART.

Plaintiff’s Second Amended Complaint contained ten claims against Defendants, alleging

that they committed various violations of the Fair Labor Standards Act, the Illinois Minimum

Wage law, the Illinois Wage Payment and Collection Act, the Americans with Disabilities Act

(“ADA”), the Illinois Human Rights Act (“IHRA”), and the Illinois Whistleblower Act (Doc. 36).

The Court granted partial summary judgment in favor of Defendants on Plaintiff’s failure to

accommodate allegations in Counts Eight and Nine (violations of the ADA and IHRA); Plaintiff’s

retaliation/discrimination claims in Counts Eight and Nine remained. During trial, Plaintiff

voluntarily dismissed Counts Six and Seven (violations of the Illinois Wage Payment and

Collection Act), her discrimination allegations in Count Eight (ADA), and she dismissed Count

Nine (IHRA) against Himanshu Patel only. The Court granted judgment as a matter of law in favor

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of Defendants on Count Three (retaliation under the Fair Labor Standards Act). The jury

deliberated the following claims:

Count 1: Violation of Fair Labor Standards Act (failure to pay minimum wage)

against both Defendants

Count 2: Violation of Fair Labor Standards Act (failure to pay overtime) against

both Defendants

Count 4: Violation of Illinois Minimum Wage Law (failure to pay minimum wage)

against Motel 6

Count 5: Violation of Illinois Minimum Wage Law (failure to pay overtime) against

Motel 6

Count 8: Violation of the Americans with Disabilities Act against Motel 6

(retaliation)

Count 9: Violation of the Illinois Human Rights Act against Motel 6 (retaliation)

Count 10: Violation of the Illinois Whistleblower Act (“IWA”) against Motel 6

The jury found in favor of Plaintiff on Counts 1, 2, 4, and 5 and awarded her $30,000.00

in damages. The jury found in favor of Defendant Motel 6 on Counts 8-10. The Court awarded

Plaintiff $30,000.00 in liquidated damages pursuant to the Fair Labor Standards Act (“FLSA”).

The Court also awarded Plaintiff $12,375.00 in interest and $37,500.00 in treble damages pursuant

to the Illinois Minimum Wage Law (“IMWL”). Plaintiff now asks the Court to award her

approximately $168,000.00 in attorneys’ fees and costs.

Discussion

Because Plaintiff received a favorable judgment on her FLSA and IMWL claims,

Defendants must pay her reasonable attorneys’ fees and costs. 29 U.S.C. §216(b); 820 ILCS

105/12(a). To determine the amount Defendants must pay for Plaintiff’s attorney fees, the Court

uses the “lodestar method: “the hours reasonably expended multiplied by the reasonable hourly

rate.” Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012). The Court may then reduce the

lodestar if the plaintiff “achieved only partial or limited success.” Montanez v. Simon, 755 F.3d

547, 556 (7th Cir. 2014).

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Hourly rates

The reasonable hourly rate is “derived from the market rate” and “the best evidence of any

attorney’s market rate is his or her actual billing rate for similar work.” Id. at 933. Four attorneys

worked on Plaintiff’s case and Plaintiff asks that the Court award their hourly rates in the following

amounts:

Veronica Johnson $435

Sarah Jane Hunt $350

Amber Kempf $350

MaryAnne Quill $250

Plaintiff does not provide any evidence establishing that her attorneys have ever charged

or have actually been paid the above-listed amounts and therefore the Court must consider

evidence of rates charged by “similarly experienced attorneys” in similar cases, as well as

“evidence of fee awards the attorney has received in similar cases.” Pickett v. Sheridan Health

Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Spegon v. Catholic Bishop of Chicago, 175

F.3d 544, 555 (7th Cir. 1999)). The Seventh Circuit prefers that district courts rely upon “third

party affidavits that attest to the billing rates of comparable attorneys” over evidence of fee awards

the attorney has received in similar cases. Id. The Court may make “its own determination of a

reasonable rate” if the fee applicant does not produce satisfactory evidence. Id. (internal citations

omitted).

Plaintiff did not submit any third-party affidavits that establish the billing rates for

attorneys comparable to her counsel. She submitted a declaration from a fellow employment law

attorney who simply opines it was reasonable for Sarah Jane Hunt to charge $350/hour and

Veronica Johnson to charge $435/hour in this matter. This declaration is not helpful, as the

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Seventh Circuit instructs that “conclusory affidavits from attorneys ‘merely opin[ing]’ on the

reasonableness of another attorney’s fee-unlike affidavits describing what ‘comparable attorneys

charge for similar services’ -- have little probative value.” Montanez, 755 F.3d at 554 (citing

Pickett, 664 F.3d at 647).

Plaintiff also submitted a document titled “Billing Rates 2019” by Missouri Lawyers Media

that provides the following:

….rates for 213 Missouri-based attorneys and 77 Missouri staff

members..and rates for 18 lawyers and staff who work at out-of-state

offices…[a] large portion of that data is thanks to a massive class-action

settlement with Syngenta regarding its use of genetically modified corn. A

federal judge gave final approval late last year to a $1.51 billion class-wide

settlement-the largest Missouri case of 2018 as tracked by Missouri

Lawyers Media. A third of that settlement went to fees for hundreds of

lawyers across the country who aided in the litigation. The filings in

support of that fee application also reveal the biggest hourly fees in this

year’s Billing Rates edition-$865 an hour…[t]he median hourly rate for

Missouri lawyers as a whole was $370 an hour, up from the $318 median

rate we reported in 2018. Outside of the state’s two metropolitan areas, the

median remained at $250.

(Doc. 128-3, p. 2). It is unclear what Plaintiff expects the Court to glean from this document other

than hourly fees for select Missouri attorneys ranged from $160-$865 (Id., p. 2-8).

“Employment” is a practice area listed for some of those attorneys (Id.). The document also lists

the hourly rates for 10 attorneys from Illinois, ranging from $175-$875 (Id., p. 8-13). “Class

Action/MDL” is the practice area listed for all 10 attorneys from Illinois (Id.). As the document

states, it appears the hourly rates listed were significantly affected by “a massive class action case”

involving genetically modified corn. To the extent this document provides useful information

that applies to the case at hand, Plaintiff fails to identify that specific information and the Court

therefore declines to consider the document.

Sarah Jane Hunt provided a declaration to the Court that included information regarding

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two cases where her fees charged at a rate of $300/hour were included in a court-approved

settlement (Doc. 128-1, p. 2). Considering these court-approved settlements, and because

Defendants do not dispute that $350/hour is a reasonable charge for Sarah Jane Hunt’s services in

this matter, the Court will calculate Attorney Hunt’s hours at a rate of $350/hour.

Defendants do, however, object to Attorney Johnson’s rate of $435/hour. Attorney

Johnson states in her declaration that “my hourly rate is $435 an hour,” but this conclusory

statement falls short of establishing that she actually charges her clients $435/hour or is actually

paid $435/hour by her clients, particularly because she states elsewhere in the declaration that most

of her “practice involves litigation under fee shifting statutes” (Doc. 128-2, p. 1-2). Attorney

Johnson further states that in 2017 she was awarded “$400 per hour with a 1.5 multiplier, for an

effective hourly rate of $600 per hour” in a case pending in Lincoln County, Missouri; she was

also awarded $385/hour for another case in the U.S. District Court for the Eastern District of

Missouri in 2014. However, Attorney Johnson does not provide any information to the Court

regarding the similarity of these cases to the instant matter, including why the “1.5 multiplier” was

used. Defendants propose that the Court use $400/hour for Attorney Johnson’s fees. Because

Attorney Johnson was most recently awarded fees at the rate of $400/hour, and because Plaintiff

provides no other probative evidence for which the Court could determine a higher rate is

appropriate, Attorney Johnson’s fees will be calculated at $400/hour.

Regarding the proposed rates of $250/hour for associate Mary Anne Quill and $350/hour

for associate Amber Kempf, Attorney Hunt opines in her affidavit that the proposed rates are

commensurate with their experience--another conclusory opinion with “little probative value,”

especially because Attorney Hunt was/is their employer. See id. No other information (e.g.,

whether their rates were actually charged to or paid by their client(s), evidence of fee awards in

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other cases) is provided for Attorneys Kempf and Quill, so the Court must determine their

reasonable rates.1 Looking at recent fee-shifting cases from this district, $185/hour was awarded

in 2018 for an associate’s work on an Age Discrimination in Employment Act (“ADEA”) claim

tried to verdict. Pisoni v. Illinois, Case No. 12-cv-678-SMY, 2018 WL 4144495, *3 (S.D. Ill.

Aug. 30, 2018). In another ADEA case where the plaintiff was sanctioned for discovery

misconduct and ordered to pay defense counsel’s fees, $131.75/hour was awarded for an

associate’s work. Dave’ v. Board of Trustees of Southern Illinois University, Carbondale, Case

No. 18-cv-02122-GCS, 2022 WL 575614, *4 (S.D. Ill. Feb. 25, 2022). Neither rate was contested

by the opposing party. In a claim filed pursuant to the Individuals with Disabilities Education

Act, the Court awarded attorney’s fees at the rate of $200/hour for a newly licensed attorney

representing the plaintiffs who had claimed a rate of $250/hour.2 K.S. v. Bd. of Education of

Vandalia Community Unit School Dist. No. 203, Case No. 16-cv-22-NJR-DGW, 2018 WL

3993628, *9 (Aug. 21, 2018).

According to Attorney Hunt’s affidavit, Attorney Quill graduated from law school in 2018,

approximately 18 months before this case was filed. This case was tried in July 2021. From

2018-2021, Attorney Quill “litigated multiple employment, special education, Fair Housing, and

civil rights matters” (Doc. 128-1, p. 4). Attorney Kempf graduated from law school 19 years

before this case was filed and has “decades of experience in the legal field” but no information is

given regarding the type of law she practiced during those decades (Id.). In light of recent Orders

1 Defendants arbitrarily propose $160/hour for both attorneys because that is the lowest rate listed in the “Billing

Rates 2019” document by Missouri Lawyers Media. As previously discussed, the “Billing Rates 2019” document

was not presented to the Court in a useful manner.

2 The attorney in question graduated from law school two years before she represented the plaintiff at a hearing, and

had only been licensed to practice law in Illinois for three months prior to the hearing. Id.

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from this district in similar fee-shifting cases, and in light of the information (or lack thereof)

provided regarding their experience, the Court finds it reasonable to calculate Attorney Quill’s rate

at $225/hour and Attorney Kempf’s rate at $250/hour.

Hours reasonably expended

The Court must exclude “excessive, redundant, or otherwise unnecessary hours.” Hensley

v. Eckerhart, 461 U.S. 424, 434 (1983) (“[c]ases may be overstaffed, and the skill and experience

of lawyers vary widely”); 29 U.S.C. §216(b). Plaintiff carries the burden of producing billing

entries that sufficiently document her attorneys’ work on this case. Fox v. Vice, 563 U.S. 826,

838 (2011); Montanez, 755 F.3d at 556. In examining the attorneys’ billing entries, the Court’s

goal is “to do rough justice, not to achieve auditing perfection.” Id.

Upon careful examination of Plaintiff’s billing entries, the Court identified a problematic

pattern. First, four attorneys worked on this case, though none of the issues (e.g., whether Plaintiff

worked as a manager at Motel 6, whether Defendants retaliated against her) were complex. Two

of those attorneys--Veronica Johnson and Sarah Hunt--are senior attorneys, while Mary Anne

Quill and Amber Kempf are associates. Of course, it is common and appropriate for associates

to spend a significant amount of time researching, writing, preparing discovery responses, etc.--all

of which must then be reviewed by a more senior attorney. In this case, however, one associate

would conduct research, prepare discovery responses, and draft pleadings; the other associate

would do the same. Then Sarah Hunt would review.3 Both associates prepared for trial with

Plaintiff. The Court expects that Plaintiff’s attorneys would not bill their client for these

duplicative efforts, and the Court will not bill Defendants for them. The Court reduces Attorney

3 Plaintiff voluntarily reduced many of Sarah Hunt’s “Review” entries, and the Court considered those voluntary cuts

when determining how many of Attorney Kempf’s hours should be reduced.

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Kempf’s hours, and not Attorney Quill’s, because it was Attorney Quill who conducted depositions

and took an active role at trial and obviously, familiarity with a case allows an attorney to work

more efficiently.

Likewise, Plaintiff fails to establish that she needed two senior attorneys to prepare and

appear for trial. From the Court’s perspective, the appearance of a second senior attorney less

than a month before trial only complicated certain matters (e.g., jury instructions) in this relatively

uncomplicated case.4 Therefore, where Attorney Johnson and Attorney Hunt billed for the same

task, the Court will not order Defendants to pay for Veronica Johnson’s time, as Sarah Hunt tried

the case and was involved in it from inception.

In their Response to Plaintiff’s Motion for Fees and Costs, Defendants argue that Plaintiff

should have retained local counsel and her fees/costs should be reduced accordingly. It would be

a stretch for the undersigned to find that Plaintiff’s counsel’s firm, located in St. Louis, Missouri,

is not “local” counsel when St. Louis attorneys are frequently approved for the Southern District

of Illinois CJA panel and appointed to criminal cases in this district, both in East St. Louis and

Benton.5 Plaintiff had no control over whether her case was tried in the East St. Louis courthouse

or the Benton courthouse. Defendants’ “local counsel” argument therefore carries no weight, and

neither does their argument that Plaintiff’s attorneys should have not charged for their time spent

traveling to court for trial. Defendants’ counsel states in her affidavit that she does not charge her

clients for travel time, and Defendants submit an affidavit from another attorney who makes the

4 At all three of the jury instructions (two informal, one formal), the attorneys representing Plaintiff could not decide

which claims they were going to present to the jury and which claims they were going to voluntarily dismiss, and/or

made last minute decisions regarding the dismissal of these claims. These last-minute decisions resulted in multiple

delays for the Court and the jurors.

5 The Criminal Justice Act (“CJA”) mandates that U.S. District Courts operate a system “for furnishing

representation” to persons who have been charged with certain crimes and are unable to afford an attorney. 18 U.S.C.

§3006A(a).

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same statement. Regardless, the Court finds it reasonable for Plaintiff’s attorneys to charge for

their travel time.

Some of Defendants’ objections are, at best, confusing. Defendants claim that Plaintiff’s

counsel should not charge for the time spent responding to their Motion for Summary Judgment

because their Motion for Summary Judgment was “not directed to UNSUCCESSFUL claims”

(emphasis in the original) (Doc. 132-1, p. 9-11). First, the Court assumes Defendants meant to

argue that the Motion for Summary Judgment WAS directed to Plaintiff’s unsuccessful claims,

which would be a valid reason for denying Plaintiff’s attorneys’ fees for their time spent

responding. Regardless, Defendants directed their Motion for Summary Judgment to ALL of

Plaintiff’s claims, (Doc. 49). Plaintiff’s attorneys cut their own entries regarding the time they

spent on the ultimately unsuccessful claims in the Response to Defendants’ Motion for Summary

and the Court likewise does not include them.

At multiple times and in various contexts throughout this case, Defendants have argued

that Plaintiff owes Defendant Patel money. Defendants now contend in their Response to

Plaintiff’s Motion for fees that “[a]ny time that Plaintiff’s counsel seeks fees for time to address

the loan should be redacted as it was never an issue in this case” (Doc. 132, p. 160). This

argument is non-sensical. Defendants raised, as an affirmative defense, that “[t]o the extent that

a Defendant is found liable for any damages to Plaintiff, which each Defendant denies, Defendant

Patel is entitled to an offset of all monies borrowed from him by Plaintiff which she has yet to be

repaid” (Doc. 37). Plaintiff filed a Motion in Limine to bar all mention of the loan at trial, and

Defendants objected (Docs. 61 and 67). Defendants argued at the final pretrial conference that

they should be able to present evidence of the loan at trial to show they “were trying to help”

Plaintiff (Doc. 78, p. 9). The Court granted Plaintiff’s Motion to bar evidence of the loan, and

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Defendants then filed a Motion to Reconsider, which was denied (Docs. 104 and 106). Plaintiff

realized that Defendants had raised the loan as an affirmative defense and filed a Motion to Strike

it (Doc. 71). Defendants objected that the Motion was untimely, which was correct (Docs. 89 and

97). Regardless, the issue of the loan appeared to the Court to be an improper affirmative defense,

and the Court ordered Defendants to show cause as to why it should not be stricken (Doc. 97).

Defendants then finally conceded that it should be stricken (Doc. 103). Given the resources and

time spent by Plaintiffs and the Court on the “loan” (an issue inserted by Defendants), it is

confounding that Defendants now claim “it was never an issue in this case.”

Based upon the above analysis, the Court finds the following figures represent reasonable

fees for Plaintiff’s attorneys’ time.

PLAINTIFF’S REASONABLE FEES

Attorney Reasonable Hours reasonably Total

Hourly rate expended

Veronica $400 36.9 $14,760

Johnson

Sarah Hunt $350 151 $52,850

Mary Anne Quill $225 187.6 $42,210

Amber Kempf $250 99.4 $24,850

$134,670

Reductions based upon Plaintiff’s limited success

Having found that Plaintiff’s reasonable attorneys’ fees are $134,760, the Court must now

consider whether Plaintiff obtained an “excellent result.” Plaintiff lost four of her ten claims, but

the Court finds it more meaningful to consider the theories Plaintiff attempted to establish during

the course of this litigation: 1) that she did not receive overtime compensation; 2) that she was

retaliated against for complaining that she did not receive overtime compensation; 3) that she was

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retaliated against because of her disability; 4) that she was retaliated against because she reported

Defendants to OSHA; 5) that Defendants failed to reasonably accommodate her disability.6 Out

of these five scenarios, Plaintiff’s only success was to establish that Defendants did not pay her

overtime compensation. Plaintiff calculated that Defendants owed her approximately $80,000 in

damages, but the jury only awarded her $30,000. However, the Court awarded her an additional

$79,875.00 in interest, liquidated damages, and treble damages (all statutory remedies) for a total

of $109,875.00. Considering that four of her five theories failed, Plaintiff did not obtain an

excellent result, but her total damages certainly represent a good result.

Many of the entries by Attorney Quill and Attorney Kempf are easily reduced to represent

Plaintiff’s limited success because they did not involve Counts 1, 2, 4, and 5. Namely, they spent

a fair amount of time responding to Defendants’ Motion to Dismiss and preparing a First Amended

Complaint, neither of which involved the issues in Counts 1, 2, 4, and 5. Attorney Kempf worked

on written discovery and Attorney Quill spent significant time on depositions and written

discovery, all of which were incurred at a time where 80% of Plaintiff’s theories related to

retaliation and only 20% related to overtime compensation. The Court previously considered and

reduced their duplicative entries to total 99.4 reasonable hours spent by Attorney Kempf on this

matter, and 187.6 reasonable hours spent by Attorney Quill. To account for Plaintiff’s

unsuccessful claims, the Court strikes 45 additional hours for Attorney Kempf and 50.6 hours for

Attorney Quill.

6 The Court granted summary judgment in favor of Defendants on Plaintiff’s failure to accommodate claim under the

ADA, finding that she had not exhausted her administrative remedies, but allowed Plaintiff to proceed on an ADA

discrimination claim (Doc. 66). When Plaintiff pursued her administrative remedies, she completed a document that

stated Defendants had discriminated against her because of her disability (Doc. 49-4). At trial, Plaintiff’s counsel

informed the undersigned that Plaintiff never intended to pursue a discrimination claim and so Plaintiff voluntarily

dismissed it with prejudice (Doc. 107).

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Most of Attorney Hunt’s hours were incurred after the pretrial conference, and all of

Attorney Johnson’s hours were incurred after the pretrial conference. Very little evidence was

presented at trial regarding retaliation (which is why it was not surprising that Plaintiff did not

prevail on those claims), and therefore the Court finds that it is unnecessary to make further

reductions to Attorney Johnson’s hours and Attorney Hunt’s hours.

FINAL CALCULATIONS FOR PLAINTIFF’S ATTORNEYS’ FEES

Attorney Reasonable Hours Total

Hourly rate

Veronica $400 36.9 $14,760

Johnson

Sarah Hunt $350 151 $52,850

Mary Anne Quill $225 137 $30,825

Amber Kempf $250 54.4 $13,600

$112,035

Costs

Under the FLSA, Plaintiff is also entitled to her attorney’s “reasonable out-of-pocket

expenses” related to this litigation, including those costs above and beyond what is listed under

Federal Rule of Civil Procedure 54(d) and 28 U.S.C. §1920 (e.g., filing fees, transcript fees).

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 968-69 (10th Cir. 2002); see also

Walters v. Mayo Clinic Health Sys., 91 F. Supp.3d 1071, 1081 (W.D. Wis. 2015). Plaintiff

submitted an invoice for $10, 732.59 for costs consisting of: 1) the initial filing fee; 2) medical

records collection fees; 3) deposition fees; 4) subpoena service fees; 5) hotel rooms for Plaintiff’s

attorneys during trial; 6) restaurant charges for Plaintiff’s attorneys during trial; 7) Attorney

Johnson’s SDIL pro hac vice fee; 8) and Attorney Johnson’s “meals and snacks re Cain trial.”

Defendants claim that because Plaintiff did not provide receipts and invoices for her costs,

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neither the Court nor Defendants can determine whether the costs are reasonable. The Court

disagrees (with the exception of the fees incurred by Plaintiff’s process server, discussed below).

Plaintiff provided descriptions of each cost that allows the Court to determine whether the claimed

amount is reasonable. For example, after the first day of trial, Attorney Hunt and Attorney Quill

ate at Agave Restaurant in Mt. Vernon, Illinois. The cost of their bill ($57.14) seems high for two

people, but the Court notes that Attorneys Hunt and Quill only asked to be reimbursed for three

meals over the course of a three-day trial and therefore the total cost for meals during trial is

reasonable, without the Court opining on what they should have ordered.

Defendants further object that Plaintiff should have used a less-expensive process server;

Plaintiff incurred approximately $2300 in fees for serving Defendant Patel with the summons, and

four witnesses for depositions, and then four witnesses again for trial. The Court will not engage

in a discussion as to which process servers litigants should use, and how much they should charge,

and can certainly foresee instances where service of process may cost approximately $250/person.

However, the undersigned would only be speculating as to the circumstances that gave rise to the

process servers’ fees in this case. At this time, the Court will not order Defendants to pay

Plaintiff’s service of process fees; however, on or before May 17, 2022, Plaintiff may submit an

affidavit(s) and/or invoice(s) from the process server explaining the charges incurred. Defendants

may file an objection on or before May 31, 2022.

As for the rest of Plaintiff’s costs, most seem reasonable. The Court will not charge

Defendants for the $47.47 fee Plaintiff incurred to obtain her medical records, because Plaintiff’s

medical condition was not an issue in Counts 1, 2, 4, or 5. The Court will also not order

Defendants to pay for Attorney Johnson’s SDIL pro hac vice fee, or her $160.85 spent on “meals

and snacks” at trial. As previously explained, the appearance of a second senior attorney at trial

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was not necessary or reasonable in this relatively straight-forward case.7 Plaintiff asks to be

reimbursed for $2,030.28 spent on hotel rooms for her attorneys at the Doubletree in Mt. Vernon,

Illinois during trial, but that amount includes a room for Attorney Johnson as well as Attorneys

Hunt and Quill. The hotel fee is therefore reduced by 33% to $1,339.99. Plaintiff’s total

reasonable costs (minus any service of process fees) are therefore $7,259.48.

CONCLUSION

For the reasons previously stated, Plaintiff’s Motion for Attorney Fees and Expenses

(Doc.128) is GRANTED IN PART and DENIED IN PART. Pursuant to §216(b) of the Fair

Labor Standards Act and §105/12(a) of the Illinois Minimum Wage Law, Defendants shall pay to

Plaintiff $112, 035 in attorneys’ fees and $7,259.48 in costs. Plaintiff is granted leave to re-

submit any invoice(s) or affidavits that establish the reasonableness of her process service fees on

or before May 17, 2022. Defendants may file an objection on or before May 31, 2022.

Finally, Defendants filed a Motion to Strike Plaintiff’s Reply to their Response to the

Motion for Fees and Costs (Doc. 135). Defendants argue that Plaintiff failed to establish

“exceptional circumstances” that justified filing a Reply pursuant to Local Rule 7.1. The Court

agrees that most of Plaintiff’s Reply (Doc. 133) simply repeated the arguments in her Motion and

therefore did not appear to contain any “exceptional circumstances.” However, in the Reply,

Plaintiff references an “Exhibit A” that she apparently intended to file as an exhibit to the Reply;

instead, she filed “Exhibit A” as a stand-alone pleading (Doc. 134). Plaintiff explains that

“Exhibit A” filed at Doc. 134 consists of her “updated” billing entries that were distorted when

7 Most of the work Attorney Johnson performed from July 5-7, 2021 (the dates of trial) duplicated Attorney Hunt’s

work and, as previously explained, was cut. For the few non-duplicative tasks performed during that time period, it

was not necessary for Attorney Johnson to be present in Benton to perform them (e.g., “research case law in 7th Circuit

accepting 8th Circuit pattern instructions”) (Doc. 128-5, p. 67-68).

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she originally filed them as an Exhibit (Doc. 128-5) to her Motion for Fees (Doc. 128). In any

event, the Court reviewed both the “distorted” entries (Doc. 128-5) and Exhibit A (Doc. 134) in

calculating Plaintiff’s attorneys’ time. Plaintiff did not explain what she means by “distorted”

and for this reason (among others), the Court did its own calculations when totaling Plaintiff’s

fees. In any event, because Plaintiff’s Reply (Doc. 133) attempts to explain why she filed “Exhibit

A”, and because the Court reviewed “Exhibit A” (Doc. 134), the Court will not strike the Reply.

Defendants’ Motion to Strike (Doc. 134) is DENIED.

IT IS SO ORDERED.

DATED: May 2, 2022

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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