Knox Trailers, Inc v. Clark

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

KNOX TRAILERS, INC., and POST )

TRAILER REPAIRS., INC., )

)

Plaintiffs, )

)

v. ) No. 3:20-CV-137-TRM-DCP

)

JEFF CLARK, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,

and Standing Order 13-02.

Now before the Court is Plaintiffs’ Notice of Filing Regarding Requested Attorneys’ Fees

Ordered Per Doc. 252 (“Notice”) [Doc. 285]. Plaintiffs request a total fee award of $104,832.09,

which includes $97,243.75 in attorney’s fees and $7,588.34 in expenses [Doc. 287]. Defendants

Billy Maples and Titan Trailers Repairs (“Defendants”) object to the requested amount [Doc. 393].

Plaintiffs have replied [Doc. 396]. For the reasons explained below, the Court will reduce the

requested amount.

I. ANALYSIS

By way of background, on February 18, 2022, the undersigned found that Plaintiffs were

entitled to an award of attorney’s fees as a discovery sanction [Doc. 252]. Specifically, the Court

awarded attorney’s fees associated with the preliminary injunction, including the hearing, and the

motion for sanctions [Id. at 21]. On July 11, 2022, the Chief District Judge entered a Memorandum

and Order (“July 11 Order”) [Doc. 422] agreeing with the undersigned’s assessment of attorney’s

fees, thus leaving the only remaining question of the amount.

In making this determination, courts often employ the “lodestar method,” which is “the

proven number of hours reasonably expended on the case by the attorney, multiplied by a

reasonable hourly rate.” Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005). The

reasonableness of the hours and the rate is determined by considering twelve factors:

(1) time and labor required; (2) the novelty and difficulty of the

questions presented; (3) the skill needed to perform the legal service

properly; (4) the preclusion of employment by the attorney due to

acceptance of the case; (5) the customary fee; (6) whether the fee is

fixed or contingent; (7) time and 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.”

Id. at 415–16. The most critical factor in determining the reasonableness of a fee award is the

degree of success obtained. Id. at 416 (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)).

As mentioned above, Plaintiffs have requested a total fee award of $104,832.09, which

includes $97,243.75 in attorney’s fees and $7,588.34 in expenses [Doc. 287 p. 11]. In support of

their request, Plaintiffs submitted a spreadsheet titled, “Plaintiffs’ Attorneys’ Fees and Expenses

Associated with Document 252” (“Spreadsheet”) [Id. at 1]. Defendants argue that Plaintiffs have

presented insufficient proof to support their fee request and that the Spreadsheet is full of entries

for non-compensable time and indications of overbilling.1 The Court will address these objections

separately.

1 Defendants also requested that the Court postpone ruling on any amount of attorney’s fees

until the Chief District Judge ruled on the objections. As mentioned above, the Chief District

Judge entered his ruling on July 11, 2022 [Doc. 422].

A. Proof

Defendants argue that Plaintiffs have not met their burden of proof with respect to their

requested fees. Specifically, Defendants raise issues with the Spreadsheet and the hourly rates that

Plaintiffs seek.

1. Spreadsheet

Defendants raise the following issues concerning the Spreadsheet submitted by Plaintiffs:

it is not sworn to; it contains edited descriptions; the descriptions are generic; and it contains no

invoices. Defendants submit that the Spreadsheet would not satisfy the reliability requirements of

Rule 1006 of the Federal Rules of Evidence.

Plaintiffs argue that they have satisfied their burden of proving entitlement to the requested

fees. Plaintiffs acknowledge that they did not submit a high-level summary of their billing records,

but instead, they submitted entries pertaining to the work expended. Plaintiffs contend that the

Court can see the work performed, by whom, at what rate, and for how long. Plaintiffs assert that

this is all that is required for a lodestar analysis.

The Court has reviewed the Spreadsheet and finds it provides an adequate basis for the

undersigned to determine the appropriate lodestar amount. Compare U.S. Structures, Inc. v. J.P.

Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997) (finding the district court’s reliance on a

summary that lists the number of hours [plaintiffs’] attorneys worked on various stages of the case,

the hourly rate charged for each attorney, and a total amount incurred was not appropriate). The

Spreadsheet provides the date that counsel performed the work; the assigned category (i.e., motion

for preliminary injunction, reply to the motion for preliminary injunction, hearing on the

preliminary injunction, motion for sanctions, and response/reply to the motion for sanctions); 2 the

description of the work performed; the timekeeper; the time incurred; the rate; and the total amount

charged. See Anderson v. Wilson, 357 F. Supp. 2d 991, 999 (E.D. Ky. 2005) (holding that the

plaintiffs had satisfied their burden to provide sufficiently detailed billing records where counsel

provided the court with “itemized statements describing the subject matter, the attorney, the time

allotment, and the charge for all work done on Plaintiffs’ case”).3

Defendants assert that Plaintiffs provided no proof pursuant to the lodestar analysis above.

But given the limited sanctions involved (i.e., attorney’s fees with respect to the preliminary

injunction and the motion for sanctions), the Court finds the Spreadsheet leaves the undersigned

well equipped to assess the reasonableness of the attorney’s fees requested.

2. Rates

Defendants emphasize that Plaintiffs used seven timekeepers and argue that Plaintiffs have

failed to show why using several timekeepers was reasonable. The Court has reviewed the

Spreadsheet, and it appears Plaintiffs utilized four attorney and three paralegals, but the Court sees

nothing inherently wrong with the number of individuals working on a case, so long as the hours

incurred are reasonable and not duplicative. Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531,

553 (6th Cir. 2008) (“Once the prevailing party provides such a record, however, ‘conclusory

allegations that the award was excessive and that counsel employed poor billing judgment do

2 Plaintiffs included a key on their Spreadsheet to explain the correlation between the number

of the Assigned Category and the work performed as follows: (1) motion for preliminary

injunction; (2) response/reply to the motion for preliminary injunction; (3) preliminary injunction

hearing; (4) motion for sanctions; and (5) response/reply to the motion for sanctions [Doc. 287 p.

2].

3 Defendants also argue that several of the entries are vague, [see Doc. 393 p. 6], which the

Court will address below.

not suffice to establish that there was error, particularly in light of the statements of the district

court [explaining the award] and our standard of review.’”) (quoting Perotti v. Seiter, 935 F.2d

761, 764 (6th Cir. 1991)).

Defendants also argue that Plaintiffs have not supported the hourly rates charged.

Defendants argue that three partners are charging the same rate of $325 per hour, which is a “rate

that some attorneys in the Knoxville area are able to command, but not many” [Doc. 393 p. 7].

Defendants submit that Attorney Carter has only been practicing for nine years and that his bio

states that he has “extensive involvement in the Juvenile court as a Guardian Ad Litem” [Doc. 393

p. 8 (other citation omitted)]. Defendants state that such work is paid at $50 per hour, but now

Attorney Carter seeks seven times that amount as his hourly rate. Defendants argue that the other

two partners, Attorneys Olinzock and Breeding have practiced longer, 12 and 17 years

respectively, but their hourly rate of $325 is also not supported. Defendants submit that Attorney

Duggan, who used a rate of $275 per hour, has been licensed to practice law since 2016.

Defendants assert that it is too late for Plaintiffs to include such information in a reply brief [Doc.

393 p. 9 (citing Darnell v. Woodbourne Invs., LLC, No. 2:17-cv-103-MCLC, 2018 WL 4039287,

at *3 (E.D. Tenn. Aug. 23, 2018)].

Plaintiffs respond that their attorneys’ hourly rates are well within the average for this

market, citing to a Knoxville Bar Association survey [Doc. 396 p. 4 (citation omitted)]. Plaintiffs

state that “it is telling” that defense counsel “failed to bring in any evidence of his own billing

rates, those of his co-counsel, or those of . . . Defendants’ prior counsel, presumably because those

rates are higher than Plaintiffs’ rates” [Id.]. Further, Plaintiffs state that the agreed-upon hourly

rate for the mediator was $465, undercutting any argument that $325 is not reasonable.

In determining the appropriate hourly rate to apply, the district court must consider the

prevailing market rate in the relevant community, which for fee purposes, is the legal community

within the Court’s territorial jurisdiction or venue. Brooks v. Invista, No. 1:05-cv-328, 2008 WL

304893, at *3 (E.D. Tenn. Jan. 30, 2008) (citing Adcock-Ladd v. Sec’y of the Treasury, 227 F.3d

343, 349 (6th Cir. 2000)). The appropriate or reasonable hourly rate “may not, however, exceed

the amount necessary to cause competent legal counsel to perform the work required.” Id. (citing

Coulter v. Tennessee, 805 F.2d 146, 148 (6th Cir. 1986), abrogated on other grounds by, The Ne.

Ohio Coal. for the Homeless v. Husted, 831 F.3d 686 (6th Cir. 2016)).

As mentioned above, four attorneys have billed in this case. Attorney Duggan’s rate is

$275 per hour, and he was licensed in 2016. Attorney Carter’s rate is $325, and he graduated LMU

Duncan School of Law in 2013. Attorney Olinzock’s rate is $325, and he has practiced for twelve

years, and Attorney Breeding, who has practiced seventeen years, bills at $325 per hour.

As an initial matter, “neither party submitted supporting declarations of third-party

attorneys to detail the reasonableness of the requested hourly rate, a common practice before this

Court.” Vanderhoef v. Dixon, No. 3:16-CV-508-TAV-DCP, 2020 WL 6864543, at *6 (E.D. Tenn.

May 4, 2020), report and recommendation adopted, No. 3:16-CV-00508-TAV-DCP, 2020 WL

4673464 (E.D. Tenn. Aug. 12, 2020). Even so, it is Plaintiffs’ burden to show the requested hourly

rates are reasonable. The Court declines to consider the Knoxville Bar Association’s survey as

Plaintiffs submitted this in a reply brief. Darnell, 2018 WL 4039287, at *3 (the court “will not

consider issues or evidence raised for the first time in [a] reply”) (quoting Int’l-Matex Tank

Terminals-Ill. v. Chem. Bank, 2009 WL 1651291, *2 (W.D. Mich. June 11, 2009)).4 Plaintiffs

4 Even if the Court were to consider the Knoxville Bar Association’s survey, the undersigned

finds it unhelpful because it does not provide any details other than the range of experience and

hourly rates charged. It does not provide the Court with details regarding the type of law that the

assert that defense counsel did not submit his hourly rates as evidence, but it is not Defendants’

burden to establish reasonableness, and Plaintiffs’ comparison to the mediator’s fee is not helpful.5

In any event, the undersigned is quite familiar with the prevailing rate for attorneys within

the Eastern District of Tennessee. Crozin v. Crown Appraisal Grp., Inc., No. 2:10-CV-581, 2012

WL 1186520, at *4 (S.D. Ohio Apr. 6, 2012) (“Arguably, this failure by Defendants was not fatal

to their ability to establish a reasonable hourly rate in the prevailing market, as a district court may

consider its own knowledge and experience concerning reasonable and proper fees and may form

an independent judgment about the reasonable rate.”). A district court may look to “a party’s

submissions, awards in analogous cases, state bar association guidelines, and its own knowledge

and experience in handling similar fee requests.” Van Horn v. Nationwide Pro. & Cas. Ins., 436

F. App’x 496, 499 (6th Cir. 2011). Given that Plaintiffs did not provide any details regarding their

counsels’ professional experience, the Court awards the following rates: (1) Attorney Duggan,

who received his law license in 2016, $250 per hour; (2) Attorney Carter, who has nine years of

experience, $275 per hour; (3) Attorney Olinzock, who has twelve years’ experience, $300 per

hour; and (4) Attorney Breeding, who has seventeen years of experience, $325 per hour.

attorneys are practicing. Further, the survey does not support the rates Plaintiffs’ attorneys are

requesting. For instance, Attorney Carter’s rate is $325 per hour, but the survey states that

attorneys with 6–10 years of experience charge more than $251 per hour and some charge more

than $276 per hour. It does not state that such attorneys are charging $325 per hour.

5 Plaintiffs state that Defendants should be precluded from questioning the reasonableness

of their counsels’ hourly rates because they did not address this issue in the meet and confer

process. The Court declines to get involved in the parties’ meet and confer process, and as

explained above, it is Plaintiffs’ burden to establish reasonableness of the rates to the Court.

Plaintiffs also contend that Defendants’ attacks on their qualifications are belied by the filings in

this case and the success Plaintiffs have experienced and assert that if the Court should require

affidavits, “counsel is happy to provide such” [Doc. 396 p. 4 n.2]. But, as the party requesting

fees, Plaintiffs should have included such information in their opening brief. See E.D. Tenn. L.R.

7.1 (“No additional briefs, affidavits, or other papers in support of or in opposition to a motion

shall be field without prior approval of the Court.”).

The Court has based these rates on its own experience with determining the appropriate

amount of attorney’s fees and the passage of time since the below cases were decided. See Knisley

v. Johnson, No. 3:21-cv-420 [Doc. 24] (E.D. Tenn. Aug. 10, 2022) (in an unjust enrichment case,

the court awarded an attorney with fourteen years of experience $300 per hour given that he

provided no details regarding his professional experience); ERMC v. Millertown, 3:19-cv-407 &

408 [Doc. 75] (E.D. Tenn. Aug. 1, 2022) (attorney who practiced for seven years charged $228.26,

$260.60, and $298.90 from 2019 to 2021 in a breach of contract case); Equal Employment

Opportunity Commission v. Dolgencorp, LLC, No. 3:14-CV-441-TAV-HBG, 2017 WL 9517513,

at *5 (E.D. Tenn. Aug. 7, 2017), (recommending $350.00 per hour for a litigator with twenty-four

years of experience and $250.00 per hour for an attorney who graduated law school in

2006), report and recommendation adopted sub nom. Equal Employment Opportunity Comm'n v.

Dolgencorp, LLC, 277 F. Supp. 3d 932 (E.D. Tenn. 2017), aff’d, 899 F.3d 428 (6th Cir.

2018); Jones v. Babcock & Wilcox Tech. Servs. Y-12, LLC, No. 311-CV-00531-PLR-HBG, 2016

WL 4691294, at *1 (E.D. Tenn. Aug. 8, 2016), report and recommendation adopted by, 2016 WL

4690398 (E.D. Tenn. Sept. 7, 2016) (awarding $345.00 per hour in a civil rights case where the

attorney had thirty-eight years of experience); Almanza v. Barr, No. 3:15-CV-389-TAV-HBG,

2019 WL 13159729, at *9 (E.D. Tenn. Aug. 5, 2019) (recommending an attorney who graduated

law school in 2006 but had been practicing employment law for eight years be awarded $260.00

per hour); Vaughn v. Parkwest Med. Ctr., No. 3:15-CV-228 [Doc. 117] (E.D. Tenn. Feb. 15, 2019),

report and recommendation adopted by, 2019 WL 1290877, at *1 (E.D. Tenn. Mar. 20, 2019)

(awarding $290 per hour for worked performed 2014 through 2018 for an attorney who had

practiced approximately twelve years). Defendants assert that the Court should deny the

application in full, but the Court declines Defendants’ invitation. While Plaintiffs’ attorneys did

not submit proof of their professional background to support the requested rates, the Court has vast

experience in fee requests and can rely on its knowledge in finding reasonable hourly rates.

B. Time Incurred

Defendants argue that Plaintiffs’ summary is full of entries for non-compensable time and

indications of overbilling, outlining eight specific areas. Defendants assert that Plaintiffs’

requested amount is excessive, especially in light of the damages in this case. Defendants argue

that if the Court declines to deny the request entirely, the Court should make a 50% across-the-

board reduction to Plaintiffs’ time.

For instance, Defendants state that Plaintiffs’ 324 hours of work on two motions is

unreasonably high in an uncomplicated case about competing trailer repair businesses. Defendants

state that the requested amount is more than the “head start” damages Plaintiffs are seeking.

Defendants compare this case to other cases involving discovery sanctions and submit that the

Court should reduce the requested amount [Doc. 393 p. 11 (citing EMW Women’s Surgical Ctr.,

P.S.C. v. Friedlander, 978 F.3d 418, 448 (6th Cir. 2020) and PepsiCo v. Central Investment Corp.,

216 F.R.D. 418, 421 (S.D. Ohio 2002)].

Plaintiffs respond that Defendants’ comparison to their “head start” damages is misleading

because the “head start” damages are not the full scope of Plaintiffs’ requested damages in this

case. Plaintiffs state that even so, their expert valued the “head start” at $75,000 to $100,000, and

their unjust enrichment claim is $1,500,000. Plaintiffs state that they also seek exemplary damages

and fees under the Defend Trade Secrets Act and the Tennessee Uniform Trade Secrets Act,

meaning their fee award request is less than 10% of their damages. Plaintiffs state that a “10% fee

award is reasonable in a mega fund case, suggesting that it is imminently reasonable in a case of

this size” [Doc. 396 p. 5].

In EMW Women’s Surgical Center, the sanctioned party argued that it was excessive for a

party to bill 23.5 hours for the time on its sanctions motion and 20 hours for the reply in support

of it. 978 F.3d 418, 448 (6th Cir. 2020), abrogated on other grounds, by Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228 (2022). The court noted that the “figures do seem high.”

Id. The court found, however, that “the district court determined them to be reasonable after

considering the content and quality of the filings in detail.” Id. (internal citation omitted). The

Court concluded that the sanctioned party presented “no argument why the time was excessive

beyond italicizing the numbers involved and asserting that they are too high.” Id.

Similarly, the Court finds Defendants’ arguments do not consider the content and the

quality of the filings in detail and simply assert that the time is excessive. The Court also notes

that the motion for sanctions did not simply raise one issue involving discovery misconduct.

Instead, the motion for sanctions raised Defendants’ misleading statements since the inception of

the case, which were only revealed during the hearing on the preliminary injunction. Further,

while Defendants assert that Plaintiffs’ requested amount is more than the “head start” damages

(and although Plaintiffs disagree), “[t]his is not an application for fees by a civil rights litigant in

which the Court must gauge the plaintiff’s degree of success versus the relief sought.” PepsiCo,

216 F.R.D. at 421. Thus, the Court will not make reductions to Plaintiffs’ request based on these

arguments.

Next, Defendants argue that Plaintiffs’ attorneys overstated their time by billing

predominantly in half-hour increments and quarter-hour increments. The Court has reviewed the

Spreadsheet, and it does not appear that Plaintiffs’ counsel utilized half-hour increments [See Doc.

396 p. 7] (“A reasonable conclusion is that some tenth-hour increments resulted in a whole hour.

Here, the reasonable conclusion is that some quarter-hour entries ended at the half or whole hour

mark.”). With respect to Defendants’ objection to billing in quarter-hour increments,

“Whether quarter-hour billing is reasonable is a matter within the discretion of the district court.”

Yellowbook Inc. v. Brandeberry, 708 F.3d 837, 849 (6th Cir. 2013). Instead of a per se rule finding

that quarter hour increments are unreasonable, courts will impose reductions if the quarter-hour

billing entries appear “suspect” and “fee enhancing.” King v. Whitmer, No. CV 20-13134, 2021

WL 5711102, at *8 (E.D. Mich. Dec. 2, 2021) (other citations omitted); see also D.S. by & through

R.S. v. Knox Cnty., Tennessee, No. 3:20-CV-240-CEA-DCP, 2022 WL 1284234, at *9 (E.D. Tenn.

Feb. 3, 2022) (stating the same), report and recommendation adopted as modified sub nom. D.S.

by R.S. v. Knox Cnty., Tennessee, No. 3:20-CV-240, 2022 WL 885851 (E.D. Tenn. Mar. 25, 2022).

The Court has not identified any “suspect” billing entries upon review of the Spreadsheet;

however, the Court will consider Defendants’ objections to counsels’ quarterly billing in

conjunction with their arguments below.

Defendants assert that Plaintiffs’ use of block billing makes it difficult to ensure the billing

for tasks is reasonable. Defendants argue that not every task Plaintiffs include in their block billing

entries in compensable, which likely resulted in swelling the hours up to 89 for the injunction. In

addition, Defendants argue that the vague time entries have caused two issues. First, Defendants

claim that the entries are vague and contain “unseen judgment calls” as to which noted time entries

would be properly included within the “Assigned Category” [Doc. 393 p. 6]. Second, Defendants

claim that “Plaintiffs’ vague, sterile tasks descriptions make it impossible to determine whether

entries are duplicative or whether the tasks were necessary” [Id. at 17].

Plaintiffs counter there is no problematic block billing entries and that Defendants have not

cited to any. Plaintiffs state that instead, Defendants provide two examples of entries that are

clearly encompassed within the Court’s order [Doc. 252] in that the entries describe work related

to the preliminary injunction. [Doc. 396 p. 8 (citing Doc. 393 p. 14)]. Plaintiffs deny that their

billing entries are vague and state that “given that briefs are hardly ever written all on the same

day when they involve complex factual or legal issues, it should not be surprising that the narrative

entries are identical” [Id. (other citation omitted)].

With respect to block-billing, “this court has held that so long as the description of the work

performed is adequate, block-billing can be sufficient.” Smith v. Serv. Master Corp., 592 F. App’x

363, 371 (6th Cir. 2014). The Court has reviewed the Spreadsheet and does not find the use of

block-billing to be problematic. Defendants cite, for example, the following entry that Attorney

Olinzock documented on both March 5, 2021, and March 8, 2021: “Assisting expert in preparation

of declaration, revising declaration of R. Hensley; revising draft for motion for preliminary

injunction; phone call with R. Hensley and R. Elliot” [Doc. 393 p. 14]; see also [Doc. 287 p. 4].

Although this description is in the block-billing format, the Court finds it sufficient to determine

what occurred and whether the time incurred is reasonable. Further, given the material submitted,

the Court is not surprised that such work occurred over several days [See Docs. 84 & 85].

Defendants also argue that some of the time entries are vague [Doc. 393 pp. 6 & 17]. The

Sixth Circuit Court of Appeals “has upheld an award of attorney fees and found billing records to

be adequate where entries made by counsel ‘were sufficient even if the description for each entry

was not explicitly detailed.” Imwalle, 515 F.3d at 553 (quoting McCombs v. Meijer, Inc., 395 F.3d

346, 360 (6th Cir. 2005)). The Court simply needs sufficient information to determine whether

the “hours charged were actually and reasonably expended in the prosecution of the litigation.”

Imwalle, 515 F.3d at 554.

The Court has reviewed the Spreadsheet, and the Court finds that a majority of the entries

sufficiently describe the work performed in this case. For instance, Defendants provide the

following example of a vague time entry, which Attorney Carter noted on February 24, 2021:

“Receipt and review of report from expert[;] telephone call with expert” [Doc. 393 p. 6]; see also

[Doc. 287 p. 3]. Attorney Carter assigned this entry to the category, “Motion for Prelim. Inj.”

[Doc. 287 p. 3]. Defendants provide other examples, stating, “These entries are vague as to what

work is being performed, a vagueness that some undisclosed person attempted to remedy by

grouping these entries under an Assigned Category using her own judgment” [Doc. 393 p. 6]. But

the Court does not find this entry to be vague and further finds it easy to conclude from the billing

entry and the assigned category that Attorney Carter discussed the expert report with the expert in

preparation of filing the motion for preliminary injunction. Similarly, Defendants point out

Attorney Carter’s May 21, 2021, “Telephone call with Client” entry [Doc. 287 p. 8], but the Court

notes that this entry is under “hearing on prelim. inj” and occurred on the day of the hearing. While

Defendants assert issues with Plaintiffs’ counsels’ grouping of entries within certain assigned

categories, the Court finds it helpful in assessing the requested amount given that the undersigned

ordered Defendants to only pay for certain tasks, as opposed to all tasks. Compare Potter v. Blue

Cross Blue Shield of Michigan, 10 F. Supp. 3d 737, 764–65 (E.D. Mich. 2014) (“[T]he billing

records contain numerous vague time entries throughout, generally referring to tasks, meetings or

communications, such as “Meeting with GM,” “emails,” “Conference with Co–Counsel,”

“Consult with DH,” “reviewed correspondence,” “research,” and “telephone call with JC,” without

any indication of the general subject matter of such communications or tasks, the number of

communications or tasks, or any explanation to justify the time devoted to those tasks and

communications.”); Kinder v. Northwestern Bank, No. 1:10-cv-405, 2012 WL 2886688, at *5

(W.D. Mich. June 5, 2012) (“[V]ague time entries such as “telecon local counsel,” “emails with

defense counsel,” and “emails re settlement” are plainly insufficient.”) (citing Gratz v.

Bollinger, 353 F. Supp. 2d 929, 939 (E.D. Mich. 2005)).

Defendants, however, have identified a few vague entries as follows: (1) May 29, 2021,

Attorney Carter billed 1.5 hours for “Update file; review and revise latest pleading re: sanctions;

and (2) on September 3, 2021, Attorney Carter billed 1.25 for “Review sanctions responses; work

file.” [Doc. 287 pp. 8 & 10]. The Court agrees that “update file” and “work file” are vague, and

the Court will deduct two hours from Attorney Carter’s time to account for these vague billing

entries. Fox v. Vice, 563 U.S. 826, 838 (2011) (explaining that courts “may use estimates in

calculating and allocating an attorney’s time”).

In addition, Defendants argue that Plaintiffs should not recover fees (5 hours at $275 per

hour) for their motion for expert to testify via Zoom because they withdrew it. Plaintiffs have not

replied to this argument. “[W]hen a party fails to respond to an argument, that argument is

generally deemed to be unopposed and the proposition conceded.” AK v. Behav. Health Sys., Inc.,

382 F. Supp. 3d 772, 774 (M.D. Tenn. 2019). Even so, the Court agrees with Defendants that

Plaintiffs’ award should not include these fees given that Plaintiffs withdrew their motion.

Accordingly, the Court finds a deduction of $1,375.00 from the fee request to be appropriate.

Defendants assert that Plaintiffs also seek reimbursement of $7,588.34 in expenses, but the

Court only awarded attorney’s fees. Defendants argue that seeking these expenses is contrary to

what the Court ordered. In addition, Defendants argue that Plaintiffs did not provide any proof

other than the Spreadsheet to justify this request. Defendants state that at the very least, Plaintiffs

should have provided receipts or invoices.

Plaintiffs state that the Court contemplated awarding expenses [Doc. 396 p. 8 (citing Doc.

252 p. 20 (“Rule 37(c)(1) provides that the Court may order a party to pay reasonable expenses,

including attorney’s fees, caused by a failure to supplement discovery responses in accordance

with Rule 26(e).”)]. Plaintiffs state that the only non-attorney’s fee expense requested relates to

the retention of their SouthWare expert, Robert Elliott (“Elliott”). Plaintiffs submit, “The rationale

for awarding fees associated with the injunctive relief request is the exact same for awarding the

expenses associated with retaining Elliott, who provided sworn and live testimony in support of

the injunction request” [Doc. 396 pp. 8–9]. Plaintiffs state that they have not included any

expenses related to Elliott that that were not specifically related to the injunction or sanctions.

Rule 37(c)(1) provides that in addition to, or instead of, the Court “may award payment of

the reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P. 37(c)(1).

The Court observes, however, that in Plaintiffs’ motion for sanctions, they requested the Court to

“award Plaintiffs their reasonable attorneys’ fees” [Doc. 125 p. 4]. Plaintiffs briefed their request

for attorney’s fees in their memorandum of law [Doc. 126 pp. 25 & 126] (“Mr. Maples, Titan

Trailer, and their counsel should be required to pay Plaintiffs’ reasonable attorneys’ fees. . .

Additionally, Plaintiffs should be awarded their reasonable attorneys’ fees caused by such

conduct.”). In addition, Plaintiffs briefed this issue in their reply brief [Doc. 143 p. 11] (“Finally,

attorneys’ fees are appropriate.”).

The Court’s Order states, “The Court hereby awards Plaintiffs their attorney’s fees

associated with preparing for the preliminary injunction hearing, litigating their motion and related

filings, and attending the hearing” [Doc. 252 p. 21 (internal citation omitted)]. Chief District Judge

McDonough’s July 11 Order states, “The Court fully agrees with Magistrate Judge Poplin’s

assessment of attorney’s fees and overrules Defendants’ objections to the same” [Doc. 422 p. 15].

Neither Plaintiffs’ filings, nor the Court’s orders, provided for the payment of expenses. While

Rule 37(c)(1) allows the Court to award expenses, Plaintiffs simply did not request expenses, and

the Court did not so order. The Court finds it unfair to do so at this juncture. Accordingly, the

Court will not award $7,588.34 in expenses.

Next, Defendants submit that Plaintiffs seek reimbursement for fees incurred and related

to Attorney Lawhorn’s individual filing. Defendants submit that Plaintiffs seek $11,456.25 for

work on replies in support of their motion for sanctions, but they failed to clearly delineate between

the work on a reply to Defendants’ opposition and the reply to Attorney Lawhorn and his firm’s

opposition. Defendants assert that they should not bear the costs for Plaintiffs addressing Mr.

Lawhorn and his firm’s briefing because Attorney Lawhorn and his firm made the decision to file

an opposition, not Defendants. They argue that they have no control over their prior counsel’s

decision. Further, Defendants point out that Attorney Lawhorn succeeded in his argument, and

the Court did not sanction him.

Plaintiffs respond, “A careful review, however, shows that only 21.25 hours, at the very

maximum, were expended on working on the reply to prior counsel’s response, or less than

$6,000.00 (not $11,456.25)” [Doc. 396 p. 9]. Plaintiffs argue that they should be awarded these

fees because they all relate to and stem from Defendants’ conduct. Further, Plaintiffs assert that

while the Court did not sanction Attorney Lawhorn, it also did not absolve him of all responsibility.

Plaintiffs state that instead, the Court found Attorney Lawhorn’s actions did not fit the parameters

of 28 U.S.C. § 1927.

The Court agrees that Defendants should not bear the costs of drafting and filing a reply to

Attorney Lawhorn’s response. While related, the issue of whether Attorney Lawhorn should be

liable was different from Defendants’ liability. Because Plaintiffs did not provide the Court with

an exact amount, the Court will deduct $6,000 from their fee request. Fox, 563 U.S. at 838 (“But

trial courts need not, and indeed should not, become green-eyeshade accountants. The essential

goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So

trial courts may take into account their overall sense of a suit, and may use estimates in calculating

and allocating an attorney’s time.”)

Defendants assert that the Court should disallow fees for tasks that Plaintiffs overstaffed

because such overstaffing is unreasonable and raised costs unnecessarily. Defendants assert that

Plaintiffs overstaffed the injunction hearing with three partner-level attorneys and submit that

Attorney Breeding’s presence was unnecessary. Defendants state that Attorney Breeding had only

a limited role in drafting the motion for preliminary injunction and reply and that she only billed

to review and revise the memorandum and reply. Defendants state that she did not examine any

witnesses and her time entries constitute $3,087.50, approximately a third of the total charged for

the hearing. Defendants state that the staffing decisions on drafting filings and preparing for the

injunction hearing make the attorney’s fees Plaintiffs claim to have incurred on those tasks

unreasonable as well. For instance, Defendants state that Plaintiffs staffed work on their motion

for preliminary injunction and reply with three partner-level attorneys and one associate, billing a

total of 102.5 hours, in addition to two paralegals, who billed 90.75 hours. Further, Defendants

state that, with respect to the motion for sanctions and reply, Plaintiffs used three partners, one

associate, and one paralegal. Defendants state that 29 out of the 35 entries for these filings

involved reviewing, editing, or revising.

Plaintiffs respond that Attorney Breeding, given her considerable trial and legal experience,

attended and assisted in preparing for the injunction hearing through oversight, review, and

guidance. Plaintiffs state that had Defendants proffered Amy Clark as a witness at the injunction

hearing, Attorney Breeding would have played a larger role. Plaintiffs state that they were not

aware of which witnesses Defendants would call, and therefore, they had to be prepared for

multiple witnesses to testify. Plaintiffs accuse Defendants of taking a reductionist review of the

fee request. Plaintiffs state that Defendants fault Attorney Breeding for having a limited role in

drafting but then claim overstaffing. Plaintiffs argue that Defendants’ argument should be rejected

because they appropriately parceled out the work. Plaintiffs state, for example, while drafting the

motion for preliminary injunction, the associate on the briefing performed approximately half of

the hours worked, which is the right balance of delegation.

The Supreme Court has acknowledged the following:

Cases may be overstaffed, and the skill and experience of lawyers

vary widely. Counsel for the prevailing party should make a good

faith effort to exclude from a fee request hours that are excessive,

redundant, or otherwise unnecessary, just as a lawyer in private

practice ethically is obligated to exclude such hours from his fee

submission.

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Courts have also “reduced fees where the

requested fee reflected duplication of services, excessive time for simple or routine tasks, the use

of too many attorneys, excessive conferencing, unnecessary consultant work, or in the performance

of clerical tasks by legal professionals.” Potter, 10 F. Supp. 3d at 768 (quoting Fharmacy Records

v. Nassar, 729 F. Supp. 2d 865, 884–85 (E.D. Mich. 2010)).

The Court does not find Attorney Breeding’s time duplicative. As Plaintiffs represent,

Attorney Breeding would have played a larger role at the preliminary injunction hearing had

certain witnesses been called to testify. Thus, Attorney Breeding had an obligation to prepare for

the hearing. The Court has reviewed the remaining entries to determine whether Plaintiffs have

overstaffed the case or whether their attorneys have performed duplicative work. The Court

observes that Attorney Olinzock and Attorney Carter entered a majority of the entries. Attorney

Breeding entered only approximately thirteen entries, which are consistent with Plaintiffs’

representation that she provided general oversight. But, in reviewing the assigned tasks, the Court

does not find them to be duplicative, and it appears that Plaintiffs’ counsel appropriately delegated

the work. For instance, with respect to assigned category number 1, Attorney Duggan spent the

most time drafting the motion for preliminary injunction [Doc. 287 pp. 2–4]; Attorney Carter billed

a few hours for reviewing and editing but mainly billed for preparing the evidence in support

thereof and client correspondence; and Attorney Olinzock spent his time in this category working

with the expert. With respect to the reply brief, all the attorneys worked on the reply, but the total

time incurred on the reply brief was only 13.5 hours [Id. at 5]. The Court notes a similar delegation

of work with respect to the remaining categories [Id. at 5–11]. Thus, the Court declines to make

reductions on this basis.

II. CONCLUSION

Accordingly, for the reasons stated above, the Court ORDERS the following:

(1) Attorney Duggan’s hourly rate shall be $250 per hour.

(2) Attorney Carter’s hourly rate shall be $275 per hour.

(3) Attorney Olinzock’s hourly rate shall be $300 per hour.

(4) Attorney Breeding’s hourly rate shall be $325 per hour.

(5) Two hours shall be deducted from Attorney Carter’s time to

account for vague entries.

(6) Defendants shall not be liable for the expenses in the amount

of $7,588.34.

(7) The amount of $1,375.00 shall be deducted to account for the

withdrawn motion.

(8) The amount of $6,000.00 shall be deducted to account for the

work on replying to Attorney Lawhorn’s response.

IT IS SO ORDERED.

ENTER:

i / { .-

Debra C. Poplin kc

United States Magistrate Judge

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