Stallsworth v. Mars Petcare US, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

JEREMY STALLSWORTH, )

Individually, and on behalf of all others, )

)

Plaintiff, )

) No. 2:17-cv-04180-NKL

v. )

)

MARS PETCARE US INC., )

)

Defendant. )

ORDER

Pending before the Court is Plaintiff’s Motion for Attorneys’ Fees and Costs, Doc. 34,

and Defendant’s Motion to Take Judicial Notice, Doc. 38. For the following reasons, Plaintiff’s

motion is granted in part and denied in part, and Defendant’s motion is granted.

I. Background

In May 2017, Plaintiff Jeremy Stallsworth applied with Staff Management | SMX for

employment at Defendant Mars Petcare US, Inc.1 Plaintiff was hired, placed in a position at the

Defendant’s facility, and attended a four hour orientation session. After orientation, Plaintiff was

told that he would receive a phone call notifying him of his start date. When Plaintiff did not

receive a phone call within a few days, he contacted SMX. Plaintiff learned that SMX had

obtained a consumer report concerning him, which it shared with the Defendant, and that he was

denied employment with the Defendant due to information in the report.

1 The Amended Complaint, Doc. 6, names “The Nutro Company” as the Defendant. However,

Mars, Inc. purchased The Nutro Company in 2015, and merged it into Mars Petcare US, Inc.

On August 23, 2017, Plaintiff filed the present putative class action against Defendant

Mars Petcare US, Inc. in the Circuit Court of Cole County, Missouri. On that same day, Plaintiff

also filed a separate—but nearly identical—putative class action against SMX.2 Both cases were

based on the same events, and alleged violations of the Fair Credit Reporting Act. On September

21, 2017, Defendant removed the case to this Court. On September 28, 2017, Plaintiff filed an

amended complaint, Doc. 6. On October 12, 2017, Defendant filed a motion to consolidate this

case with Plaintiff’s suit against SMX, which is also pending before this Court, and a motion to

compel arbitration. Docs. 9, 10. Plaintiff responded to both motions on November 21, 2017.

On November 30, 2017, just three months after the case was filed, the parties notified the

Court that they had reached a settlement. Plaintiff agreed to accept $1,000, as well as reasonable

attorneys’ fees and costs, in exchange for a release of his claims against Defendant. The parties

further agreed that they would attempt to reach a consensus regarding the amount of attorneys’

fees and costs, but that if they could not, the matter would be submitted to the Court for a ruling.

The parties were unable to reach such an agreement, and thus Plaintiff filed the present motion

for attorneys’ fees and costs.

II. Discussion

It is undisputed that Plaintiff is entitled to an award of costs and reasonable attorneys’

fees under the FCRA. See 15 U.S.C. §§ 1681n(a)(3) and 1681o(a)(2) (providing that a plaintiff

may recover costs and reasonable attorney’s fees “in the case of any successful action to enforce

any liability”). The starting point in determining reasonable attorneys’ fees is the lodestar

calculation: the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hanig v. Lee, 415 F.3d

2 Stallsworth v. Staff Management | SMX, 2:17-cv-04178-NKL.

822, 825 (8th Cir. 2005). 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).

The party seeking the award must submit documentation supporting the requested

amount, making a good faith effort to exclude hours that are excessive, redundant, or otherwise

unnecessary. Hensley, 461 U.S. at 434. Counsel must exercise “billing judgment,” and be

mindful that “hours that are not properly billed to one's client also are not billed to one's

adversary pursuant to statutory authority.” Id. (citation omitted). In assessing the amount

requested, courts may consider: (1) the time and labor required; (2) the novelty and difficulty of

the legal questions; (3) the skill requisite to handle the case properly; (4) the preclusion of other

employment by the attorney due to acceptance of the case; (5) the customary fee for similar work

in the community; (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. United

Health Care Corp. v. American Trade Ins. Co., Ltd., 88 F.3d 563, 575 n.9 (8th Cir. 1996) (citing

Hensley, 461 U.S. at 434 n.3).

Plaintiff seeks $41,050.00 in attorneys’ fees, and $184.47 in costs and expenses.

Plaintiff’s request is based on a $550 per hour rate for the two attorneys who prosecuted the case,

Jason Brown and Jayson Watkins, as well as legal assistant fees at a rate of $100 per hour. In

support of this motion, Plaintiff submitted itemized time records, declarations from Mr. Brown

and Mr. Watkins, and a firm resume. The breakdown of hours and grand total sought are as

follows:

Attorney Brown 43.5 hours

Attorney Watkins 28.7 hours

Legal Assistant Graham 13.4 hours

GRAND TOTAL 85.6 hours

The amount that Plaintiff seeks for costs and expenses includes only an initial filing fee, and a

service fee.

Defendant does not dispute that Plaintiff is entitled to an award of attorneys’ fees and

costs, or that a lodestar calculation is the appropriate method. Instead, Defendant argues that

Plaintiff’s requested amount should be reduced because the number of hours counsel recorded is

unreasonable, and because the hourly rates are excessive.

A. Reasonableness of the Number of Hours

Defendant argues that the amount of time that Plaintiff’s counsel recorded in this case is

unreasonable, and requests that the Court reduce the number by “at least 75%” to account for

“obviously inflated time entries.” Doc. 37, p. 7. Defendant does not challenge Plaintiff’s time

spent on substantive filings, but rather objects to Plaintiff’s time recorded on “small things,” such

as emails, calls, and letters. Id. Defendant contends that, when aggregated, Plaintiff’s time

records amount to “death by a thousand cuts.” Id

The only specific time entries that Defendant opposes are four .2 hour entries related to

the Court’s ECF Orders, nine .2 hour entries related to ECF notification emails of Plaintiff’s own

filings, and four .2 hour entries where both Mr. Brown and Mr. Watkins recorded time for a

single email. Doc. 37, pp. 5-6. Defendant also challenges the rest of Plaintiff’s time entries

generally, and contends that it was Plaintiff’s practice to record at least .2 hours for every phone

call made and every email sent or received. Defendant seeks a uniform reduction of all of

Plaintiff’s requested hours, arguing that the request is unreasonable because the case was not

particularly complex, and because it was resolved in about twelve weeks.

The Court has reviewed the billing records, and finds that some of Defendant’s objections

have merit. In particular, on several occasions, Plaintiff’s counsel recorded .2 paralegal hours for

filing a document on ECF, recorded an additional .2 attorney hours when they received a

subsequent email notification of the filing from ECF, and then recorded yet another .2 paralegal

hours to download from ECF the exact same document that had just been filed. See Doc. 35-1,

pp. 2, 4, 7, and 9. Such a practice, which amounts to a total of .6 hours—or 36 minutes—to file a

document on ECF, is excessive. Plaintiff’s hours will be reduced accordingly. The Court will

also reduce Plaintiff’s recorded hours where both Mr. Brown and Mr. Watkins billed the same

time for a single email, which Plaintiff consents to.

Based on the Court’s past experience, and without any other objections to specific time

entries, the Court finds that Plaintiff’s remaining hours are reasonable. That much of Plaintiff’s

communication in this case occurred via email is inconsequential, and furthermore, the Court

finds that Plaintiff exercised adequate ‘billing judgment.” For example, while on some

occasions both of Plaintiff’s attorneys presumably conferred over the same email, time is usually

only billed to one, and Plaintiff represents that any instances where it was billed to both attorneys

was inadvertent. Moreover, Defendant has not identified any specific overlaps between the two

cases that were not adequately taken into account. Indeed, it is apparent from a review of the

time records that Plaintiff reduced hours in situations where substantial work in one case could

be utilized in the other. For example, Plaintiff’s counsel recorded 3 hours drafting a response to

Defendant’s motion to consolidate in this case, but only .8 hours on the same motion in the SMX

case.3 While the cases are of course similar, it is not unreasonable that a moderate amount of

3 Defendant does not object to bearing the burden of greater billed time due to work that was

relevant to both cases. However, even if Defendant did object, the Court’s decision would remain

unchanged. The Eighth Circuit has previously recognized the apportionment of attorneys' fees between

defendants in separate, but closely-related cases. See Pinkham v. Camex, 84 F.3d 292, 294 (8th Cir.

time was required to tailor the briefing to each case.

Defendant relies on Stutzka v. McCarville for the blanket proposition that “where a case

is not particularly complex, fees will commonly be reduced.” Doc. 37, p. 4 (citing Stutzka v.

McCarville, 243 Fed. App’x 195, 197 (8th Cir. 2007). Stutzka, however, does not stand for such

a proposition. There, the plaintiff sought over $100,000 in attorneys’ fees after receiving only

$200 for a “technical violation” of the Truth in Lending Act (TILA). Stutzka, 195 Fed. App’x at

196. The district court, however, awarded only $3,000 in fees, because it found that “most of the

time shown in the application was unrelated to the TILA claims.” Id. The district court based its

award only on the time spent on the TILA claims, which it observed “were not complex in

nature.” Id. at 197. The Eighth Circuit affirmed the decision, but noted that it “might have been

inclined to make a more generous award . . . .” Id.

That this case may not have been particularly complex does not require a reduction in

Plaintiff’s counsel’s modest time spent on it. In light of the foregoing, the Court will reduce Mr.

Brown’s time by 1 hour, Mr. Watkin’s time by .8 hours, and Ms. Graham’s time by 1.2 hours.

The Court will award 70.4 hours for the attorneys, and 12.2 hours for the legal assistant.

B. Reasonableness of the Hourly Rate

Defendant also contests the reasonableness of Mr. Brown and Mr. Watkins’ requested

rate of $550.4 “As a general rule, a reasonable hourly rate is the prevailing market rate, that is,

the ordinary rate for similar work in the community where the case has been litigated.” Moysis

v. DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002) (quotation omitted). In deciding upon the

appropriate rate, “courts may draw on their own experience and knowledge of prevailing market

1996) (citing Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 420 (3rd Cir.

1993) (if fees incurred in other litigation were for work product actually utilized, time spent in other

litigation was “inextricably linked” to issues in present litigation, and plaintiff was not previously

compensated, the court may include all fees)).

4 Defendant does not contest the hourly rate for legal assistant time.

rates.” Warnock v. Archer, 397 F.3d 1024, 1027 (8th Cir. 2005). However, the prevailing

market rate is only a starting point. The rate charged should also take into account the

experience, skill, and expertise of the attorneys as well as the complexity, significance, and

undesirability of the case. See Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993).

See also Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991) (affirming higher rate,

based on comparable nationally prominent federal civil rights counsel, rather than Iowa counsel,

because of attorney’s status as recognized national expert in civil rights law).

In support of the requested hourly rates, Plaintiff submitted declarations from Mr. Brown

and Mr. Watkins, as well as a firm resume. Mr. Brown and Mr. Watkins state that they have

extensive experience in complex and collective action litigation, and represent FCRA clients in

the federal courts of Kansas, Illinois, and Missouri, as well as Missouri state courts. Both Mr.

Brown and Mr. Watkins are members of the National Association of Consumers Advocates, as

well as the National Employment Lawyers Association of Kansas City. For the past five years,

the attorneys’ practice has concentrated almost exclusively on consumer rights class actions,

with a primary focus centered on the FCRA and, more specifically, 15 U.S.C. § 1681b class

actions. While both Mr. Brown and Mr. Watkins state that they normally charge $750 per hour,

they also state that they generally accept new FCRA cases on a contingent basis. Docs. 35-2 and

35-3. Plaintiff also points to a 2013 Consumer Law Attorney Fee Survey Report, which

indicated that the median rate for all consumer attorneys in Missouri was $400, the 75% rate was

$515, and the 95% rate was $660.5 The same report also indicated that in Kansas City the

median rate for all attorneys was $400, the 75% rate was $575, and the 95% rate was $695.

Finally, Plaintiff argues that the Laffey Matrix, which purportedly represents reasonable fees in

5 Plaintiff’s counsel does not provide the report that they rely on, but rather present its findings in

their declarations. See Docs. 35-2 and 35-3. Defendant does not challenge their accuracy.

the Washington, D.C. area, supports their request. See http://www.laffeymatrix.com/see.html

(visited May 2, 2018).

Defendant contests Plaintiff’s requested rate with the Missouri Attorney Weekly, which

issues an annual report on bill rates requested and awarded in Missouri. According to the report,

in 2017, the average partner billing rate in Kansas City was $406 per hour, with a maximum of

$550 per hour. Doc. 37-1, p. 4. The average practice rate was $373 per hour, also with a

maximum of $550 per hour. Id. Defendant also points out that the Missouri Attorney Weekly

shows that practitioners in small firms outside metropolitan centers, such as Plaintiff’s counsel,

simply do not command $550 per hour. Id. Finally, Defendant also provides an Order from

Chief Judge Kays in a separate matter, Komoroski v. Utility Service Partners Private Label, Inc.,

4:16-CV-00294-DGK, which awarded an average hourly rate of $270 per hour for attorneys in a

consumer class action.6 Doc. 38, p. 4.

In light of the general rule that a reasonable market rate is the ordinary rate for similar

work in the community where the case has been litigated, Moysis, 278 F.3d at 828, the Court first

observes that the Laffey Matrix is irrelevant in that it applies specifically to Washington, D.C.

Furthermore, the Court notes that the $550 hourly rate requested by Plaintiff is well above the

Kansas City-area average for all attorneys, $373, and for partners, $406. Plaintiff’s request is

also significantly above the median rate for all consumer attorneys in Missouri, $400, and the

75% rate for all consumer attorneys in Missouri, which is $515. Moreover, because Plaintiff’s

counsel takes most cases on a contingency basis, what they charge on an hourly basis is not a

good measure.

6 Defendant moves for the Court to take judicial notice of Chief Judge Kays’ Order, pursuant to

Federal Rule of Evidence 201. Doc. 38. It is unclear to the Court why judicial notice is necessary,

however, as the motion is unopposed, and judicial notice of court orders is permitted, the motion is

granted. See Hood v. United States, 152 F.2d 431, 535 (8th Cir. 1946) (district courts may take judicial

notice of proceedings in other courts).

Based on its experience and knowledge of the local market, the Court concludes that a

reduction is necessary, and finds that $450 per hour is a reasonable rate for Mr. Brown and Mr.

Watkins in an action such as this. Mr. Brown and Mr. Watkins have specialized expertise in

FCRA litigation, which is the primary focus of their practice. Although perhaps this case was

not particularly complex, they achieved a good result for their client, and should not be penalized

because the litigation was not protracted. The Court’s award is also congruent with Judge

Crabtree’s finding in another FCRA case, Bailes v. Lineage Logistics, LLC, 15-2457-DDC-TJJ

(D. Kan. Oct. 20, 2017). There, the court concluded that “$450 per hour is a reasonable—albeit

high—rate for Mr. Brown and Mr. Watkins . . . .”

Accordingly, Mr. Brown and Mr. Watkins shall be compensated at $450 per hour.

III. Conclusion

For the reasons set forth above, Plaintiff’s Motion for Attorneys’ Fees and Costs, Doc. 34

is granted in part and denied in part, and Defendant’s Motion to Take Judicial Notice, Doc. 38, is

granted. The amount of fees awarded is $32,900 and the amount of costs awarded is $184.47.

/s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: May 8, 2018

Jefferson City, Missouri