F.C. Bloxom Company v. Tom Lange Company International, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

F.C. BLOXOM COMPANY d/b/a )

F.C. BLOXOM COMPANY )

INTERNATIONAL, )

)

Plaintiff-Appellant, )

)

v. ) Case No. 20-3147

)

TOM LANGE COMPANY )

INTERNATIONAL, INC., d/b/a )

SEVEN SEAS FRUIT, )

)

Defendant-Appellee. )

OPINION

SUE E. MYERSCOUGH, United States District Judge:

Before the Court is the Defendant/Appellee’s Application for the

Clerk to Enter a Supplemental Judgment Awarding Attorneys’ Fees

and Costs (d/e 121). Plaintiff’s request to bar Defendant’s

Supplemental Fees is denied as Defendant’s petition is not time

barred, Defendant has not waived costs, and the fees and costs

requested are reasonable, subject to the Defendant’s requested 20%

reduction. Therefore, Defendant/Appellee’s Application (d/e 121) is

GRANTED.

I. BACKGROUND

The origin of this dispute traces back to an August 2018 agreement

by Defendant-Appellee Tom Lange Company International, Inc.

d/b/a Seven Seas Fruit (“Defendant”) to sell and deliver three loads

of onions to Plaintiff-Appellant F.C. Bloxom Company International

(“Plaintiff”) for shipment to Plaintiff’s customer in Honduras. The

total price of the onions was $24,045.00, or $8,015.00 per load. The

shipment of onions was not accompanied by the proper

documentation and could not be imported into Honduras. By the

time the onions were returned to the United States, the onions had

spoiled and could not be salvaged.

Defendant filed a Formal Complaint with the United States

Department of Agriculture following Plaintiff’s failure to pay for the

shipment of onions, in violation of section 2 (4) of the Perishable

Agricultural Commodities Act of 1930 (“PACA”), as amended, 7 U.S.C.

§ 499(b)(4). d/e 90. In a reparation proceeding before the Department

of Agriculture, the Secretary of Agriculture issued a Decision and

Order awarding Defendant damages against Plaintiff in the amount

of $66,581.01, plus costs and interest. (d/e 90-12). Plaintiff filed a

notice of appeal pursuant to 7 U.S.C. § 499g(c). d/e 1. Pursuant to

PACA, Plaintiff posted a cash bond with this Court in the amount of

$165,000 to act as security to apply to the damages awarded if

Defendant prevailed in this action. (d/e 104, p. 2).

In an Opinion and Order entered on November 22, 2022, this

Court granted Defendant’s Motion for Summary Judgment and

directed entry of a monetary judgment in favor of Defendant and

against Plaintiff in the amount of $66,581.01, plus interest at the rate

of 1.5% (18% per annum) on the original sales contract amount of

$24,045.00 from August 9, 2018, through the date judgment is

entered, plus a handling fee of $500, plus pre-judgment interest of

$42,536.01 at the rate of 0.15% per annum from May 21, 2020,

through the date judgment is entered, plus attorney’s fees to be

computed pursuant to Central District of Illinois Civil Local Rule

54.1, plus costs to be taxed by the Clerk pursuant to 7 U.S.C. §

499g(c). (d/e 101, p. 31). On December 16, 2022, Plaintiff filed a

Notice of Appeal. (d/e 103).

On the same date, Defendant moved for the imposition of

attorney’s fees in the amount of $552,904.12 plus interest through

the date of Judgment totaling $18,861.63. (d/e 104, pp. 2-3).

Thereafter, Plaintiff filed a Memorandum in Opposition (d/e 112) and

Defendant filed its Reply brief (d/e 113). On September 28, 2023, this

Court entered an Opinion granting in part and denying in part

Defendant’s Motion for Attorneys’ Fees, Costs, and Interest. (d/e 115).

On September 16, 2024, the United States Court of Appeals for

the Seventh Circuit filed a mandate in this action, affirming the

judgment of the District Court. (d/e 120). On October 14, 2024,

Defendant filed the instant Application for the Clerk to Enter a

Supplemental Judgment Awarding Attorneys’ Fees and Costs with

declarations in support. (d/e 121). On November 27, 2024, Plaintiff

filed its Memorandum in Opposition and on December 4, 2024,

Defendant filed its reply. (d/e 123, 124).

Defendant now seeks supplemental attorney’s fees in the amount

of $148,310.11, which includes attorney’s fees and costs expended due

to Plaintiff’s motion to stay judgment and appeal following Defendant’s

initial attorney’s fees application. (d/e 121, p. 2).

II. DISCUSSION

A. Plaintiff’s Requests to Bar Defendant’s Supplemental

Petition are Denied.

i. Defendant’s Initial Motion for Attorney’s Fees

and Costs was Timely, and Defendant’s

Supplemental Petition is Not Time Barred.

Plaintiff argues Defendant’s Application for Supplemental

Judgment for Attorneys’ fees must be denied as Defendant failed to

meet the 14-day deadline imposed by Federal Rule of Civil Procedure

54 and Local Rule 54.1. Specifically, Plaintiff argues Defendant failed

to file this supplemental petition within 14 days of the issuance of

the Amended Judgment in this matter. (d/e 123).

On September 28, 2023, the Court entered its Opinion on

Defendant’s first Motion for Attorneys’ Fees, Costs and Interest. (d/e

115). In its September 28, 2023 Order and text order the following

day the Court directed the Clerk of Court to enter an Amended

Judgment awarding attorney’s fees and setting a cash bond. (d/e

115, 116). The Amended Judgment was filed on September 29, 2023.

(d/e 117). Prior to entry of these orders, Plaintiff had filed a Notice of

Appeal, and a Short Record of Appeal was sent to the Seventh Circuit

Court of Appeals. (d/e 103, 106). On September 16, 2024, the

Seventh Circuit Court of Appeals filed its mandate in this matter

affirming the judgment of the district court. (d/e 120). On October

14, 2024, Defendant filed its instant application for supplemental

attorney’s fees and costs. (d/e 121).

Defendant did not file its application for supplemental

attorney’s fees until 28 days after the appellate court’s mandate was

entered in this matter and over a year after the Amended Judgment

was entered. Plaintiff argues that given the application was not filed

within 14 days, Defendant’s fees and costs must be denied.

A review of Defendant’s requested fees and costs indicate that

many of the expenses were unknown to Defendant at the time the

Defendant filed its first Motion for Attorneys’ Fees, Costs, and

Interest or when the Amended Judgment was filed. This is true as

many of the newly requested fees and costs were not incurred until

after the Amended Judgment was entered while Defendant was

defending this case on appeal.

Defendant argues it previously satisfied the purpose of Rule 54,

namely putting the Plaintiff on notice that additional attorney’s fees

and costs would be sought. In support, Defendant argues it

requested attorney’s fees and costs in its summary judgment order,

timely filed its first motion for attorney’s fees, and noted in each filing

that Defendant reserved the right to seek additional fees after they

were incurred. (d/e 124-1, p. 5). Further, Defendant argues there is

no time limit for seeking additional fees and costs as such items are

incurred. Lastly, Defendant notes that such a time limit would result

in prejudice to the Defendant for costs and fees incurred after a

successful defense on appeal. This Court agrees.

Although Defendant filed its application for additional fees and

costs well after the Amended Judgment was entered, the Court had

already found in ruling on Defendant’s first motion for fees and costs

that Defendant was entitled to reasonable fees and costs under

PACA. Further, Defendant placed this Court and the Plaintiff on

notice that additional fees would likely be sought during the

pendency of appeal. Therefore, the Court finds that Defendant’s

application is not time barred given the notice supplied to Plaintiff

and the lack of any authority that requests for additional fees, when

they have not yet been incurred, must comply with the 14-day

requirement.

ii. Defendant Has Not Waived Recovery of Costs.

A district court has broad discretion to determine whether costs

should be awarded. Weeks v. Samsung Heavy Indus. Co. Ltd., 126

F.3d 926, 945 (7th Cir. 1997). The losing party has the burden to

affirmatively show that the prevailing party is not entitled to costs.

Congregation of the Passion, Holy Cross Province v. Touche, Ross &

Co., 854 F.2d 219, 222 (7th Cir. 1988). In general, the Seventh

Circuit Court of Appeals has recognized only two exceptional

circumstances to overcome the presumption that a prevailing party

should receive costs: (1) when he or she has engaged in some

misconduct or other action worthy of penalty or (2) when the losing

party is indigent. Id. Further, the presumption established by Fed. R.

Civ. P. 54 is that the prevailing party will recover its costs. Federal

Rule of Civil Procedure 54.

Plaintiff also argues Defendant waived supplemental attorney’s

fees under Local Rule 54.1(B) as Defendant did not include Form AO-

133 as a summary for its bill of costs. (d/e 123, pp. 8-9). Plaintiff

further argues that Defendant failed to comply with Federal Rule of

Appellate Procedure 39(d)(1) as Defendant does not seek the type of

costs permitted under that rule.

Local Rule 54.1 allows a bill of costs and supporting

documentation to be filed in any format, but the Rule specifically

notes that such a format “must include Form AO-133 as a summary.”

There is no dispute Defendant failed to include such a form with its

supplemental motion. Defendant argues that the failure to include

this form should not preclude recovery as it is a “requirement of form”

and the Court should overlook this failure. (d/e 124). Defendant

states that it did not willfully omit Form AO-133 from the application.

Further, Defendant specifically identified all of its costs in the

application and provided “detailed back-up and receipts for each

item.” (d/e 124-1, p. 7).

The Court has reviewed Form AO-133, which requires a listing

of specific types of fees and costs, a section for “other costs” which

are not specifically listed, and a “special note” regarding itemization

and documentation for requested costs in all categories. The Court

finds that the Defendant’s supplemental application for attorney’s

fees, namely the declaration from John Amato and the supporting

documentation, is sufficient to place Plaintiff on notice of Defendant’s

requested costs and the absence of Form AO133 will not prevent

Defendant’s recovery of fees and costs. Further, the information

supporting the request for fees and costs is complete in Defendant’s

motion and allows Plaintiff the opportunity to object to specifics,

which it did. Notably, Plaintiff points the Court to “deposition video

expenses” and the lack of documentary support. While the Court will

address entitlement to specific costs later in this order, the Court will

not find that the absence of Form AO-133 bars Defendant from

receipt of costs outright.

Plaintiff also contends Defendant may not seek the specific

costs requested in its motion relating to travel expenses, e-discovery

costs, deposition expenses, appeal filing fees, court admissions, and

delivery services. Citing Federal Rule of Appellate Procedure 39(d)(1)

Plaintiff argues Defendant must “within 14 days after entry of

judgment” file and serve an itemized and verified bill of costs. Plaintiff

argues Defendant has failed to do so with its instant motion and has

therefore waived recovery of these costs. However, this section of Rule

39 applies to costs that a party is seeking from the circuit clerk of the

Court of Appeals, and which would then be ordered in the mandate

to the district court. FRAP 39(d)(1). Defendant did not file the instant

motion for costs in the appellate court. Therefore, this rule does not

apply to Defendant’s pending motion for costs before this Court.

Plaintiff also argues under subsection (e) of Rule 39 that

Defendant’s requested attorney’s fees and costs are not the type that

may be awarded. Federal Rule of Appellate Procedure 39(e) allows a

district court to tax as costs:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the

appeal;

(3) premiums paid for a bond or other security to preserve

rights pending appeal; and

(4) the fee for filing the notice of appeal.

Each of these type of costs in Rule 39 are those which only

accrue at the appellate level. Here, Defendant is seeking costs related

to its defense on appeal and many of these costs are not attributable

to specific appellate filing fees. Rather, Defendant is mostly seeking

costs of travel and e-discovery. These are the types of costs a district

court normally considers when awarding fees and costs.

Further, Defendant’s motion does not seek costs relating to

specific appellate court fees covered under Federal Rule of Appellate

Procedure 39 and the Court finds that Defendant’s request for costs

is not barred.

B. Legal Standard

Under PACA, in an appeal from a reparation order, the

prevailing appellee “shall be allowed a reasonable attorney’s fee to be

taxed and collected as part of his costs.” See 7 U.S.C. § 499g(c). The

presence of the word “shall” indicates that courts are required to

award fees to the prevailing appellee. See Robinson Farms Co. v.

D’Acquisto, 962 F.2d 680, 684-85 (7th Cir. 1992) (“We give ‘shall’ its

normal, imperative meaning, and find that granting of fees under §

499g(c) is not discretionary, though the amount of fees is.”) The

Seventh Circuit found that the purpose of the fee provision is to

“encourag[e] vigorous private enforcement of the law, thereby

creating a fair marketplace.” Id. at 685. The court compared PACA

to fee-shifting provisions under the civil rights laws, stating that in

“both cases the prospect of recovering attorney’s fees helps induce

plaintiffs to sue, rather than accepting an injustice and hoping

someone with better financial means will stand up to the wrongdoers,

as well as attracting attorneys to take on cases they might otherwise

neglect because of a plaintiff’s penury.” Id.

In determining an attorney’s fee award courts typically use the

“lodestar method,” which is “the product of the hours reasonably

expended on the case multiplied by a reasonable hourly rate.”

Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). While the

lodestar method yields a presumptively reasonable fee a court may

adjust the fee based on factors not accounted for in the computation.

Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

To calculate the amount of reasonable fees incurred, the Court

must first determine Defendant’s attorney’s reasonable hourly rate.

“A reasonable hourly rate is based on the local market rate for the

attorney's services.” Montanez, 755 F.3d at 553. “The best evidence

of the market rate is the amount the attorney actually bills for similar

work.” Id. However, “if that rate can't be determined, then the district

court may rely on evidence of rates charged by similarly experienced

attorneys in the community and evidence of rates set for the attorney

in similar cases.” Id. The fee applicant “bears the burden of

establishing the market rate for the work; if the lawyers fail to carry

that burden, the district court can independently determine the

appropriate rate.” Id.

The Seventh Circuit has stated “just because the proffered rate

is higher than the local rate does not mean that a district court may

freely adjust that rate downward.” Mathur v. Board of Trustees of

Southern Illinois University, 317 F.3d 738, 743 (7th Cir. 2003). “[I]f

an out-of-town attorney has a higher hourly rate than local

practitioners, district courts should defer to the out-of-town

attorney’s rate when calculating the lodestar amount, though if

local attorneys could do as well, and there is no other reason to have

them performed by the former, then the judge, in his discretion,

might allow only an hourly rate which local attorneys would have

charged for the same service.” Id. at 744 (internal quotation marks

omitted); see also Jeffboat, LLC v. Director, Office of Workers Comp.

Programs, 553 F.3d 487, 490 (7th Cir. 2009) (“[O]ur cases have

consistently recognized that an attorney’s actual billing rate for

comparable work is presumptively appropriate for use as a market

rate when making a lodestar calculation.”). Although the plaintiff

in Mathur was from southern Illinois, the court stated it was

reasonable for him to search for an attorney in Chicago when his

efforts in southern Illinois were unsuccessful. See id. Additionally, it

concluded the district court abused its discretion in simply stating

“that the lower rate was appropriate because of the prevailing local

rates in southern Illinois, without regard to the quality of service

rendered by the appellants.” Id.

Plaintiff alleges that Defendant is not entitled to attorney’s fees

because there is no legal basis for recovery. The Court disagrees.

PACA specifically discusses the fees and costs associated with an

appeal to the district court shall be provided to an appellee if he

prevails. Though there is no specific language including an additional

appeal to a Court of Appeals, it follows that, if the appellee is

successful at the district court and an appellant decides to again

appeal the district court’s decision to a Court of Appeals, the appellee

should be entitled to reasonable attorney’s fees. Defendant, the

Appellee here, has been successful after the Plaintiff exercised its

right to appeal decisions from both the agency level and the district

court. Given Defendant’s successful claim, Defendant is entitled to

attorney’s fees associated with the costs of defending said claim on

appeal.

C. Reasonableness of Fees and Costs

Defendant argues the recovery of additional attorney fees and

costs is reasonable because of the fees and costs expended on motion

practice, appeal briefs and travel after the Amended Judgment was

entered. This included a motion to stay enforcement of the Amended

Judgment at the district court and defending the district court’s

award at the Seventh Circuit Court of Appeals. Further, the Amended

Judgment does not “capture the attorney’s fees and costs Defendant

paid counsel to respond to motions and appeal, including related

costs and disbursements.” (d/e 121-2, p. 4).

Defendant seeks attorney fees and costs incurred from

December 1, 2022 and July 20, 2024. Defendant argues it has

incurred $181,994.58 in attorney’s fees and $3,393.06 in costs.

However, Defendant only requests additional attorneys’ fees and

costs in the amount of $148,310.11, which includes a 20% reduction

of the total fees and costs sought. This reduction reflects the

reduction the Court imposed when determining Defendant’s first

request for attorney’s fees in 2023.

John Amato, a partner at Thompson Coburn LLP, submitted a

Declaration in support of Defendant’s request for additional attorney

fees and costs. Mr. Amato’s Declaration states that his firm expended

a total of 361.5 hours by eight attorneys, including one partner and

seven associates, and four additional support staff between

December 1, 2022 and July 30, 2024. (d/e 121-2, p. 8). Mr. Amato

billed 95.3 hours at a discounted rate of $765 per hour and 5 hours

at $880 per hour. Id. Erik Lewis billed 12.1 hours at $470 per hour

and 6.10 hours at $541 per hour. Id. Danielle Bauer billed 30.6 hours

at $535 per hour and 71.40 hours at $595 per hour. Id. Matthew

Nevola billed 3.3 hours at $415 per hour. Id. James Pizzo billed 14.20

hours at $360 per hour and 70.40 hours at $410 per hour. Id. Finn

Mayock billed 6.30 hours at $450 per hour. Id. Lorena Guzman-Diaz

billed 5.70 hours at $470 per hour. Id. Two paralegals billed 21.7

hours at $320 per hour and 17 hours at $345 per hour. Two litigation

support managers billed 0.9 hours at amounts between $265 and

$335 per hour.

In Plaintiff’s Response to Defendant’s request for additional fees

and costs, Plaintiff alleges that the requested rates of attorneys and

staff are unreasonable and unjustified. (d/e 123, pp. 13-14).

However, Plaintiff does not suggest an appropriate rate to the Court

and instead suggests that the fees requested should be reduced to

rates consistent with the local market. Id. While counsel for the

Defendant ably represented its client’s interests shown by the

continued success through two appeals, the Court believes a

reduction of 20%, as calculated by Mr. Amato, and previously ordered

by this Court, is appropriate given the likelihood that a local attorney

would have achieved the same result and will apply the same

percentage reduction to fees and costs overall.

Along with Plaintiff’s argument that Defendant’s requested rates

are unreasonable, Plaintiff argues 42% of the additional requested

fees relate to preparation of the motion seeking an initial award of

attorney’s fees. Plaintiff argues that this amount, $62,562.50, are

fees incurred from drafting the first attorney’s fee motion and

Defendant offers no proof of the reasonableness of the work regarding

a “routine” post-judgment motion. (d/e 123, pp. 12-13).

Although a motion for attorney’s fees is a somewhat routine

motion that many counselors file when they have success on the

merits, the attorney’s fee motion Defendant filed was not routine.

Defendant’s first attorney’s fee motion included fees and costs

requests from three law firms, over 10 attorneys, and support staff of

each of the three firms involved. (d/e 104). In addition, the

declarations prepared by counsel at each of the firms were extensive

and provided cost breakdowns from the beginning of representation

in this matter when the Meuers Law Firm was retained in April 2019,

continuing through the reparation proceedings before the U.S.

Department of Agriculture, the appeal to this Court, and the

judgment entered by this Court in December 2022. The motion also

included itemized receipts of each of the firms’ hours and various

costs. This Court did not agree that one of the three firms, Carlton

Fields, P.A, was entitled to fees. However, the Court’s prior finding

regarding Carlton Fields does not bar a finding that the fees incurred

in the preparation of such an expansive motion for fees by counsel

who still represent the Defendant is indeed reasonable.

Plaintiff also argues that many of Defendant’s entries are

excessive, represent duplicative work, should be reduced for clerical

work or are otherwise unreasonable. Defendant responds that each

of these hours were absolutely necessary to defend this matter either

in post trial motions to stay the judgment, seeking attorney’s fees, or

to defend this matter on appeal. Defendant also states many of these

fees were not incurred until well after the Amended Judgment was

entered and after the appeal was completed. Defendant further

alleges that it was Plaintiff’s decision to pursue an “aggressive

litigation strategy” in both post trial motions and on appeal which is

the sole reason for additional fees being requested from this Court.

(d/e 121-2).

Citing this Court’s September 2023 Order, Plaintiff argues

Defendant cannot recover $25,117.00 in fees for collaborating with

non-party Jason Laye or his attorney, Ms. Johanesse. In that Order,

this Court found that Jason Laye was not a party to this litigation

and fees incurred by Mr. Laye’s counsel were not recoverable by the

Defendant. (d/e 115, p. 13). The Court notes that all but $842 of the

$25,117.00 Plaintiff refers to as time spent collaborating with a non-

party was incurred before the Court issued its September 2023 Order

finding no entitlement to fees for Mr. Laye or his counsel. (d/e 121-

3, p. 37).

Defendant was unaware when collaborating with Ms. Johanesse

in 2022 and 2023 that the Court would determine that Ms.

Johanesse has no entitlement to fees as a nonparty. (d/e 115).

Therefore, this Court will not penalize defense counsel for said hours

spent compiling information, collaborating strategically, and

participating in motion practice together. Further, the hours billed

collaborating with Ms. Johanesse do not include payment to her and

therefore does not include fees that this Court has found are not

recoverable as a non-party. As such, the Court will not bar the

$25,117.00 in fees for collaboration.

This Court has previously found that as the prevailing party,

Defendant is entitled to an award of attorney’s fees and costs under

PACA. See 7 U.S.C. § 499g(c). (d/e 115). This is true whether the

reparation order is appealed to this District Court or the District

Court’s finding is appealed to a Circuit Court of Appeals. The

circumstances of this case and the Court’s position as to fees remain

unchanged after appeal.

The Court finds that an additional award of attorney’s fees is

warranted in this matter. The Court has reviewed the time entries

submitted by the parties and finds them to be reasonable considering

the post trial motions briefed requesting attorney’s fees, the motion

briefed after the Amended Judgment was entered, and legal work

required for defense of an appeal to the Seventh Circuit. Further,

each of the time entries provides the necessary detail to ascertain

what work was completed. Although Plaintiff may object to the

duration of a specific task, the Court finds no basis to strike any fee

entry as duplicitous or inappropriate.

As previously stated, the Court finds the 20% reduction in the

total fees and costs as calculated by Mr. Amaro are appropriate to

account for the likelihood that a local attorney would have achieved

the same result. Additionally, the Court reduces the costs award by

$271.60 as Defendant has provided no documentation as to this cost

for Deposition Video Expenses. The Court also notes that there is no

evidence of an “Appeal Filing Fee,” and that section of the costs

provided by counsel for the Defendant is solely for court admissions

and delivery services, which list the correct total.

Thompson Coburn is awarded attorney’s fees and costs of

$148,092.84. Therefore, the Defendant’s Application For the Clerk to

enter a Supplemental Judgment Awarding Attorneys’ Fees and Costs

([d/e 121]) is GRANTED. The Clerk is DIRECTED to enter a Judgment

as to supplemental attorney’s fees and costs consistent with this

Order noting that attorney’s fees and costs are taxed in the amount

of $148,092.84.

The Court notes that on March 5, 2025, Defendant filed a

Satisfaction of Judgment stating Plaintiff/Appellant fully satisfied the

Amended Judgment amount previously entered in this case in the

amount of $341,183.73. Defendant further notes in its Satisfaction

of Judgment that it reserves all rights to the pending “Supplemental

Motion for Fees” and further indicates Defendant may have

additional fees incurred after the filing of the instant motion.

IT IS SO ORDERED.

ENTERED: August 14, 2025

FOR THE COURT:

/s/ Sue E. Myerscough

SUE E. MYERSCOUGH

UNITED STATES DISTRICT JUDGE